McCall v. Berryhill

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

)

FRANCINE L. MCCALL, )

)

Plaintiff, )

)

v. ) Case No. 4:18-CV-01951-NCC

)

ANDREW M. SAUL,1 )

Commissioner of Social Security )

)

Defendant. )

MEMORANDUM AND ORDER

This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision

of the Commissioner denying the application of Francine L. McCall (“Plaintiff”) for Disability

Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.

Plaintiff, proceeding pro se, has filed a brief and associated medical records that the Court has

liberally construed to be a brief in support of her complaint (Doc. 18). Defendant responded

with a brief in support of the answer (Doc. 26). Therefore, this matter is fully briefed and ready

for disposition. The parties have consented to the jurisdiction of the undersigned United States

Magistrate Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. 9). For the following reasons, the

decision of the Commissioner will be AFFIRMED, and Plaintiff’s Complaint will be

DISMISSED, with prejudice.

1 Andrew M. Saul is now the Commissioner of Social Security. Pursuant to Rule 25(d) of the

Federal Rules of Civil Procedure, Andrew M. Saul shall be substituted for Acting Commissioner

Nancy A. Berryhill as the defendant in this suit. No further action needs to be taken to continue

this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. §

405(g).

I. PROCEDURAL HISTORY

Plaintiff filed her application for DIB on November 14, 2016 (Tr. 250-53). Relevant to

the current briefing, Plaintiff’s onset date was subsequently amended from September 1, 1992,

the date proposed by Plaintiff on her application, to June 30, 2000 (Tr. 255-56). Plaintiff was

initially denied on February 3, 2017, and she filed a Request for Hearing before an

Administrative Law Judge (“ALJ”) (Tr. 165-72). After a hearing on October 5, 2017 and a

supplemental hearing on March 27, 2018, by decision dated May 7, 2018, the ALJ found

Plaintiff not disabled (Tr. 15-42). On September 12, 2018, the Appeals Council denied

Plaintiff’s request for review (Tr. 1-7). As such, the ALJ’s decision stands as the final decision

of the Commissioner.

II. DECISION OF THE ALJ

The ALJ determined that Plaintiff last met the insured status requirements of the Social

Security Act on December 31, 2005, and that she did not engage in substantial gainful activity

during the period from her alleged onset date of June 30, 2000 through her date last insured of

December 31, 2005 (Tr. 20). The ALJ found Plaintiff has the severe impairments of

osteoarthritis of the knees, degenerative disc disease, fibromyalgia, major depressive disorder

and posttraumatic stress disorder (“PTSD”), but that no impairment or combination of

impairments met or medically equaled the severity of one of the listed impairments in 20 C.F.R.

Part 404, Subpart P, Appendix 1 (Tr. 20-21). After considering the entire record, the ALJ

determined Plaintiff has the residual functional capacity (“RFC”) to perform light work2 with the

2 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying

of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in

this category when it requires a good deal of walking or standing, or when it involves sitting

most of the time with some pushing and pulling of arm or leg controls. To be considered capable

of performing a full or wide range of light work, you must have the ability to do substantially all

following limitations (Tr. 22). Plaintiff could occasionally climb ramps and stairs but never

ladders, ropes and scaffolds; occasionally balance, stoop, kneel, crouch and crawl; she should

avoid concentrated exposure to extreme cold, vibration, heights and hazards; she could have

occasional contact with coworkers, supervisors and the general public; and she could engage in

no tasks requiring a high level of sustained attention (Id.). The ALJ found Plaintiff unable to

perform any past relevant work through the date last insured but that there are jobs that exist in

significant numbers in the national economy that Plaintiff can perform including marking clerk,

routing clerk, and photocopy machine operator (Tr. 36-37). Thus, the ALJ concluded that a

finding of “not disabled” was appropriate (Tr. 38). Plaintiff appeals, arguing a lack of substantial

evidence to support the Commissioner’s decision.

III. LEGAL STANDARD

Under the Social Security Act, the Commissioner has established a five-step process for

determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “If a claimant fails

to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is

determined to be not disabled.” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting

Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the

claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits.

20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20

C.F.R. §§ 416.920(c), 404.1520(c). The Social Security Act defines “severe impairment” as

“any impairment or combination of impairments which significantly limits [claimant’s] physical

or mental ability to do basic work activities. . . .” Id. “‘The sequential evaluation process may

of these activities. If someone can do light work, we determine that he or she can also do

sedentary work, unless there are additional limiting factors such as loss of fine dexterity or

inability to sit for long periods of time.” 20 C.F.R. §§ 416.967(b), 404.1567.

be terminated at step two only when the claimant’s impairment or combination of impairments

would have no more than a minimal impact on [his or] her ability to work.’” Page v. Astrue, 484

F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir.

2001), citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).

Third, the ALJ must determine whether the claimant has an impairment which meets or

equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d).

If the claimant has one of, or the medical equivalent of, these impairments, then the claimant is

per se disabled without consideration of the claimant’s age, education, or work history. Id.

Fourth, the impairment must prevent the claimant from doing past relevant work. 20

C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at this fourth step to

establish his or her RFC. Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step

four of this analysis, the claimant has the burden of showing that she is disabled.”). The ALJ

will review a claimant’s RFC and the physical and mental demands of the work the claimant has

done in the past. 20 C.F.R. § 404.1520(f).

Fifth, the severe impairment must prevent the claimant from doing any other work. 20

C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential analysis, the

Commissioner has the burden of production to show evidence of other jobs in the national

economy that can be performed by a person with the claimant’s RFC. Steed, 524 F.3d at 874

n.3. If the claimant meets these standards, the ALJ will find the claimant to be disabled. “The

ultimate burden of persuasion to prove disability, however, remains with the claimant.” Young v.

Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). See also Harris v. Barnhart, 356 F.3d 926, 931

n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377

F.3d 801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to demonstrate

RFC remains on the claimant, even when the burden of production shifts to the Commissioner at

step five.”). Even if a court finds that there is a preponderance of the evidence against the ALJ’s

decision, the decision must be affirmed if it is supported by substantial evidence. Clark v.

Heckler, 733 F.2d 65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but

is enough that a reasonable mind would find it adequate to support the Commissioner’s

conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). See also Cox v.

Astrue, 495 F.3d 614, 617 (8th Cir. 2007).

It is not the job of the district court to re-weigh the evidence or review the factual record

de novo. Id. Instead, the district court must simply determine whether the quantity and quality

of evidence is enough so that a reasonable mind might find it adequate to support the ALJ’s

conclusion. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel, 228

F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of the ALJ, who is the fact-

finder. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004). Thus, an administrative

decision which is supported by substantial evidence is not subject to reversal merely because

substantial evidence may also support an opposite conclusion or because the reviewing court

would have decided differently. Krogmeier, 294 F.3d at 1022.

IV. DISCUSSION

In her appeal of the Commissioner’s decision, Plaintiff raises a number of discrete issues

and directs the Court’s attention to various medical records but does not raise any specific legal

arguments. In an abundance of caution, the Court has conducted a complete review of the ALJ’s

determination and addressed each issue raised by Plaintiff in its analysis. Having conducted a

full and thorough review of the briefing, the record, and the ALJ’s decision, for the following

reasons, the Court finds that Plaintiff’s arguments are without merit, and that the ALJ’s decision

is based on substantial evidence and is consistent with the Regulations and case law.

A. Alleged Onset Date

First, the Court will address Plaintiff’s repeated assertion that her alleged onset date is

properly March 1, 1998, the day of her honorable retirement from the Air Force, not June 30,

2000 as indicated in the record (See, e.g., Doc. 21 at 2, 8). In a DIB claim, the alleged onset date

is “the date the claimant alleges he or she became unable to work because of his or her medical

condition.” Social Security Administration (“SSA”), Program Operations Manual System

(“POMS”), DI 25501.210.3 When non-medical factors, including work, prohibit a disability

examiner from establishing the date of onset as the one proposed by a claimant, the Field Office

will propose a potential onset date. Id. The potential onset date is the earliest possible date that

the adjudicator can use to establish the onset date based on non-medical factors. POMS DI

25501.220. See also Porter v. Berryhill, No. 5:17-CV-05028-VLD, 2018 WL 2138661, at *37

(D.S.D. May 9, 2018) (detailing the import of a potential onset date in a Title II claim).

On her November 14, 2016 DIB application, Plaintiff alleged an onset date of September

1, 1992 (Tr. 250-53). On January 23, 2017, an “Amendments to Application” was filed

indicating a change to the date on which she was unable to work because of her disabling

condition to June 30, 2000 (Tr. 255). Specifically, the form reads: “I wish to change the

following information on my application for [benefits] . . . I became unable to work because of

my disabling condition on June 30, 2000” (Id.). A reason for the change is not indicated (Id.).

At the end of the document is an affirmation which includes the following statement, “I affirm

3 “Although POMS guidelines do not have legal force, and do not bind the Commissioner, this

court has instructed that an ALJ should consider the POMS guidelines.” Shontos v. Barnhart,

328 F.3d 418, 424 (8th Cir. 2003) (referencing Berger v. Apfel, 200 F.3d 1157, 1161 (8th Cir.

2000); List v. Apfel, 169 F.3d 1148, 1150 (8th Cir. 1999)).

that all information I have given in connection with this claim is true” (Tr. 256). Under the

attestation is a telephone number and the telephone number on the form matches the one

provided by Plaintiff to the Court (Id.). However, it appears that this document was created and

processed at the Field Office especially in light of a “Report of SGA Determination” also created

on January 23, 2017, indicating that “potential onset to consider is [Alleged Onset Date]

6/30/00” (Tr. 296). Plaintiff raised an issue regarding her alleged onset date before the ALJ at

the October 5, 2017 hearing (Tr. 54). Plaintiff told the ALJ, “Actually, I don’t understand the

alleged onset date, but mine actually started in ‘92 in the Gulf War, when I came from the Gulf

War, but they said that was from the last time I had had a job or something” (Tr. 52). The ALJ

explained, “You can’t be disabled under Social Security if you’re working full time, even if you

had some medical issues” (Id.). Plaintiff appears to have acknowledged an understanding of the

ALJ’s explanation (Tr. 52-55). In her decision, the ALJ indicated that the alleged onset date was

June 30, 2000 and found that Plaintiff did not engage in substantial gainful activity during the

period from her alleged onset date through her date last insured (Tr. 18, 20).

The ALJ’s decision regarding Plaintiff’s alleged onset date is supported by substantial

evidence. Plaintiff engaged in substantial gainful activity from her initial alleged onset date in

1992 through June 30, 2000. A Summary of Plaintiff’s earnings for the years 1992 to 2000

indicates significant earnings during this period (Tr. 263). Plaintiff was employed by the United

States Air Force until 1998 and then by Citi Financial Auto LTD in 1999 and 2000 (Tr. 267-68).

Further, Plaintiff indicated on her disability report that she stopped work as a creditor on June 30,

2000 (Tr. 304). In this position, Plaintiff reported that she earned $32,000 per year (Id.). See

SSA POMS DI 10501.015 (indicating the monthly income threshold by year). A person cannot

be engaged in “substantial gainful activity” to qualify for disability benefits. 20 C.F.R. §

404.1520(b).

B. Evaluation of Plaintiff’s Subjective Complaints

Prior to addressing the ALJ’s RFC determination, the Court will first address the

consistency of Plaintiff’s complaints with the record as the ALJ’s evaluation of Plaintiff’s

symptoms was essential to the determination of other issues, including Plaintiff’s RFC.4 See

Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010) (“[The plaintiff] fails to recognize that the

ALJ’s determination regarding her RFC was influenced by his determination that her allegations

were not credible.”) (citing Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005)). In assessing a

claimant’s credibility, the ALJ must consider: (1) the claimant’s daily activities; (2) the duration,

intensity, and frequency of pain; (3) the precipitating and aggravating factors; (4) the dosage,

effectiveness, and side effects of medication; (5) any functional restrictions; (6) the claimant’s

work history; and (7) the absence of objective medical evidence to support the claimant’s

complaints. Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008); Polaski v. Heckler, 739 F.2d

1320, 1322 (8th Cir. 1984). “The credibility of a claimant’s subjective testimony is primarily for

the ALJ to decide, not the courts.” Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001).

“If an ALJ explicitly discredits the claimant’s testimony and gives good reason for doing so, [a

court] will normally defer to the ALJ’s credibility determination.” Gregg v. Barnhart, 354 F.3d

710, 714 (8th Cir. 2003). See also Halverson v. Astrue, 600 F.3d 922, 932 (8th Cir. 2010); Cox

v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). For the following reasons, the Court finds that

4 Social Security Ruling 16-3p eliminated the term “credibility” from the analysis of subjective

complaints. However, the regulations remain unchanged; “Our regulations on evaluating

symptoms are unchanged.” SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017); 20 C.F.R.

§§ 404.1529, 416.929.

the reasons offered by the ALJ in support of her analysis of Plaintiff’s subjective complaints are

based on substantial evidence.

First, the ALJ found Plaintiff’s statements concerning the intensity, persistence and

limiting effects of her alleged symptoms not entirely consistent with the medical evidence (Tr.

23). Specifically, the ALJ determined that Plaintiff “has not generally received the type of

medical treatment one would expect for a totally disabled individual” (Tr. 34). The ALJ noted,

“[t]hough [Plaintiff] was treating with multiple doctors, her follow up was sporadic,” Plaintiff

“cancelled or failed to show up for doctor appointments on a number of occasions”, and that

“treatment has been essentially routine and/or conservative in nature” (Id.). The ALJ conducted

a thorough nearly twelve full page review of the medical evidence. An ALJ may determine that

subjective complaints are not credible in light of objective medical evidence to the contrary.

Gonzales v. Barnhart, 465 F.3d 890, 895 (8th Cir. 2006). Indeed, upon review of the record, the

Court finds Plaintiff’s treatment to be sporadic and conservative in nature. For example, a

March 7, 2001 note indicates, Plaintiff “finally showed up today” after an apparent referral and

missed appointment in January of that year (Tr. 1026, 1034-37). During the encounter, the

psychiatrist noted, “[s]he refused referral to the psychologist because of her experiences in

[C]olorado where ‘the psychologist wrote things that she did not say and only found out from the

psychiatrist’” (Tr. 1027). In fact, there were several significant gaps in Plaintiff’s psychiatric

care. For example, an October 24, 2003 note indicates that Plaintiff had not been seen by

psychiatry since May of 2002 (Tr. 1094-99). See also Tr. 1307-08 (returning to psychiatric care

in January 2002 after approximately four-month hiatus). Similarly, Plaintiff failed to appear for

her medical appointments addressing her physical symptoms and impairments. See Tr. 1193

(“This patient failed to show for today’s scheduled physical therapy appoint. Pt will be given 2

weeks to reschedule, otherwise pt. will be discharged from physical therapy at that time.”); 1306

(“Since last seen she has missed/cancelled several appointments.”). An ALJ may properly

consider Plaintiff’s conservative and limited treatment history in his determination of a plaintiff’s

credibility. Kamann v. Colvin, 721 F.3d 945, 950-51 (8th Cir. 2012) (noting that the ALJ

properly considered that the claimant was seen “relatively infrequently for his impairments

despite his allegations of disabling symptoms”); Casey v. Astrue, 503 F.3d 687, 693 (8th Cir.

2007) (noting that the claimant sought treatment “far less frequently than one would expect

based on the [symptoms] that [he] alleged”).

Second, the ALJ also found that while Plaintiff has been prescribed and has taken

appropriate medications for the alleged impairments, “medical records reveal that the

medications have been relatively effective in controlling [Plaintiff’s] symptoms” (Tr. 34). The

record is full of instances where Plaintiff responded well to medication and medication

management. For example, on May 23, 2002, the psychiatrist reported that while Plaintiff had

run out of her medication after not seeking a follow up appointment, Plaintiff’s mood was

improved with calmer, brighter affect (Tr. 1151). The psychiatrist prescribed Plaintiff

Wellbutrin to help Plaintiff stop smoking and renewed Plaintiff’s sertraline and valium “for now

with plan to eventually taper both if possible” (Id.). See also Tr. 587 (noted “dramatic

improvement” within 10 minutes of bilateral knee injection). “If an impairment can be

controlled by treatment or medication, it cannot be considered disabling.” See Wildman, 596

F.3d at 965 (quoting Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004)). See also cf. Singh

v. Apfel, 222 F.3d 448, 453 (8th Cir. 2000) (repeated and consistent doctor visits coupled with

many diagnostic tests, taking numerous prescription medications and use of many pain treatment

modalities supported claimant’s subjective complaints of pain).

Third, the ALJ indicated that Plaintiff’s “medical records are replete with instances of

non-compliance regarding her appointments, medications, treatment, diets and the instructions

given by her physicians (particularly regarding following up, taking medication as prescribed,

smoking cessation, losing weight through diet and exercise and seeking psychotherapy)” (Tr.

34). The medical record supports the ALJ’s assessment. For example, Plaintiff frequently failed

to appear for her physical therapy appointments. In addition to the appointment noted above, on

February 5, 2003, Plaintiff again failed to show for her physical therapy appointment (Tr. 530).

Similarly, Plaintiff failed to take medication as prescribed; an August 14, 2004 treatment note

indicates that Plaintiff did not take a medication as prescribed after it caused some side effects

and never picked up another prescribed medication (Tr. 1086-87). The record also indicates

Plaintiff’s continued issues with smoking cessation despite being counseled otherwise (Tr.

1046). See also Tr. 493-94 (detailing Plaintiff’s tobacco use history). The ALJ may consider a

failure to follow a course of treatment in determining whether a claimant may receive benefits.

20 C.F.R. §§ 404.1530, 416.930 (individual who fails to follow prescribed treatment without a

good reason will not be found disabled). See also Wright v. Colvin, 789 F.3d 847, 854 (8th Cir.

2015) (affirming where ALJ found that claimant’s “credibility suffered from his refusal to take

pain medication and his refusal to seek out even conservative treatments such as physical

therapy”); Wildman, 596 F.3d at 966 (noncompliance is a basis for discrediting a claimant; when

claimant was compliant with dietary recommendations his pain was under good control;

claimant’s noncompliance with a diet regimen prescribed by doctor contributed to a negative

credibility determination).

Fourth, the ALJ found “[t]he description of the symptoms and limitations which the

claimant has provided throughout the record has generally been inconsistent and unpersuasive”

(Tr. 34). Specifically, the ALJ noted that while Plaintiff “repeatedly noted cognitive limitations

and memory problems, the record did not support such problems” (Id.). For example, Plaintiff

underwent psychological and cognitive testing on October 4, 2002 (Tr. 532-40). Results from

the testing were generally normal (Id.). In fact, the psychologist noted, “Neuropsychological test

result indicate that [Plaintiff] has a number of cognitive strengths” (Tr. 417, 539). While the

testing did identify problems in Plaintiff’s working memory and ability to complete visuospatial

tasks, the psychologist suggested some generalized coping mechanisms to address these issues

and that Plaintiff “has significantly impairing somatic complaints and depression” (Tr. 539-40).

Further, the ALJ highlighted an encounter with a psychiatrist in which Plaintiff told him that she

had not slept for days but the doctor noted that she was surprisingly alert and not at all

cognitively impaired for an individual claiming not to have slept for eight days (Tr. 34, 1123).

See Julin v. Colvin, 826 F.3d 1082, 1087-88 (8th Cir. 2016) (discussing evidence in the record

“from which the ALJ could infer [the plaintiff’s] claims were overstated or not entirely

reliable”).

Finally, while the ALJ did not explicitly address Plaintiff’s activities of daily living in

relation to her evaluation of Plaintiff’s subjective complaints, it is clear from the opinion that the

ALJ found Plaintiff’s performance of certain tasks to be inconsistent with Plaintiff’s reports

regarding the intensity, persistence and limiting effects of her symptoms (Tr. 21, 34). See Vance

v. Berryhill, 860 F.3d 1114, 1121 (8th Cir. 2017) (“[t]he inconsistency between [the claimant’s]

subjective complaints and evidence regarding her activities of daily living also raised legitimate

concerns about her credibility.”). As a preliminary matter, the ALJ noted that Plaintiff failed to

submit a function report detailing her physical and mental limitations (Tr. 23). Plaintiff,

however, testified that she attended college between 2000 and 2005 while raising her six children

(Tr. 23, 62). Indeed, Plaintiff testified that she successfully earned a Bachelor of Business

Administration during the relevant time period (Tr. 34, 62). Further, Plaintiff reported several

times that she was working towards a Master’s in Business Administration (Tr. 34). For

example, in an addendum from October 2, 2002, a physician notes, “Actually, she has made

quite a bit of progress but complains of difficulty in statistics class at school. She is in MBA

program” (Tr. 1193). The ALJ may properly discredit Plaintiff’s subjective complaints based on

her ability to graduate from college and pursue a master’s degree during the relevant time period.

Long v. Chater, 108 F.3d 185, 188 (8th Cir. 1997) (finding substantial evidence supported the

ALJ’s credibility determination because, in part, of plaintiff’s “academic achievements”; Thurn

v. Apfel, 994 F. Supp. 1156, 1168 (W.D. Mo. 1998) (finding “the fact plaintiff is able to maintain

passing grades while attending college full time is strong evidence that he is not disabled.”).

In conclusion, the Court finds the ALJ evaluation of Plaintiff’s subjective complaints is

based on substantial evidence and is consistent with Regulations and case law.

C. RFC Determination

Regulations define RFC as “what [the claimant] can do” despite his “physical or mental

limitations.” 20 C.F.R. § 404.1545(a). “When determining whether a claimant can engage in

substantial employment, an ALJ must consider the combination of the claimant’s mental and

physical impairments.” Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001). “The ALJ must

assess a claimant’s RFC based on all relevant, credible evidence in the record, ‘including the

medical records, observations of treating physicians and others, and an individual’s own

description of his limitations.’” Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004) (quoting

McKinney, 228 F.3d at 863). See also Myers v. Colvin, 721 F.3d 521, 526 (8th Cir. 2013). To

determine a claimant’s RFC, the ALJ must move, analytically, from ascertaining the true extent

of the claimant’s impairments to determining the kind of work the claimant can still do despite

his or her impairments. Anderson v. Shalala, 51 F.3d. 777, 779 (8th Cir. 1995). “Although it is

the ALJ’s responsibility to determine the claimant’s RFC, the burden is on the claimant to

establish his or her RFC.” Buford v. Colvin, 824 F.3d 793, 796 (8th Cir. 2016) (internal citations

omitted).

The Eighth Circuit clarified in Lauer that “[s]ome medical evidence . . . must support the

determination of the claimant’s RFC, and the ALJ should obtain medical evidence that addresses

the claimant’s ability to function in the workplace[.]” 245 F.3d at 704 (quoting Dykes v. Apfel,

223 F.3d 865, 867 (8th Cir. 2000) (per curiam) and Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir.

2000)). Thus, an ALJ is “required to consider at least some supporting evidence from a

professional.” Id. See also Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) (“The ALJ

bears the primary responsibility for determining a claimant’s RFC and because RFC is a medical

question, some medical evidence must support the determination of the claimant’s RFC.”);

Eichelberger, 390 F.3d at 591.

As previously discussed, the ALJ determined Plaintiff has the RFC to perform light work

with the following limitations (Tr. 22). Plaintiff could occasionally climb ramps and stairs but

never ladders, ropes and scaffolds; occasionally balance, stoop, kneel, crouch and crawl; she

should avoid concentrated exposure to extreme cold, vibration, heights and hazards; she could

have occasional contact with coworkers, supervisors and the general public; and she could

engage in no tasks requiring a high level of sustained attention (Id.).

The Court finds the ALJ’s RFC determination is based on substantial evidence.

Specifically, as addressed in significant detail above, the ALJ properly evaluated Plaintiff’s

subjective complaints. In doing so, the ALJ conducted a complete and detailed analysis of

Plaintiff’s medical record and activities of daily living. The ALJ also addressed the opinion

evidence of record.

First, the ALJ properly considered the opinions of two state agency consultants, Dr.

Martin Isenberg, Ph.D. (“Dr. Isenberg”), a psychological consultant, and Dr. Nancy Ceaser,

M.D. (“Dr. Ceaser”), a medical consultant (Tr. 35, 158-62). Dr. Isenberg found, as noted by the

ALJ, Plaintiff’s mental impairments were not severe and indicated that Plaintiff has mild

limitations in understanding, remembering and applying information, interacting with others,

maintaining concentration, persistence or pace, and adapting or managing oneself (Tr. 35, 158-

59). The ALJ afforded the opinion “some weight” because “additional medical evidence

received at the hearing level better supported” the ALJ’s findings (Tr. 35). Indeed, the ALJ

found Plaintiff’s RFC to be more limiting than as suggested by Dr. Isenberg (Tr. 22).

Specifically, the ALJ found Plaintiff to have the following nonexertional limitations: Plaintiff

could have occasional contact with coworkers, supervisors and the general public and could

engage in no tasks requiring a high level of sustained attention (Id.). The ALJ afforded the

opinion of Dr. Ceaser “substantial evidentiary weight,” in light of his/her status as a “qualified

expert in evaluating medical issues in Social Security disability claims” (Tr. 35). Dr. Ceaser

found Plaintiff capable of the light exertional level of work with some limitations (Tr. 35, 159-

62). Specifically, Dr. Ceaser determined that Plaintiff could only occasionally climb ramps and

stairs but never ladders, ropes and scaffolds; could only occasionally balance, kneel, stoop, or

crawl; and should avoid concentrated exposure to extreme cold, noise, wetness, vibration ad

hazards (Tr. 35, 161-62). The ALJ properly found Dr. Ceaser’s opinion “generally consistent

with the record as a whole” (Tr. 35).

Second, the ALJ correctly noted the absence of restrictions placed on Plaintiff by her

treating physicians. Specifically, the ALJ stated: “Given the [Plaintiff’s] allegations of totally

disabling symptoms, one might expect to see some indication in the treatment records of

restrictions placed on the [Plaintiff] by the treating doctor [but] a review of the record in this case

reveals no restrictions recommended by any treating doctor” (Tr. 35). The Court’s own review

similarly uncovered that no treating physicians had recommended any long term restrictions or

limitations. An ALJ may properly rely on the absence of medical restrictions in her evaluation

of Plaintiff’s limitations. Bryant v. Colvin, 861 F.3d 779, 784 (8th Cir. 2017) (“[T]he ALJ

rightfully noted the lack of any medical provider making allowances for any disability in

Bryant’s care.”).

Third, the ALJ considered the testimony of Dr. Joseph Carver, Ph.D. (“Dr. Carver”), a

clinical psychologist and the medical expert at the March 27, 2018 Supplemental Hearing (Tr.

35, 107-08, 116). Dr. Carver testified that Plaintiff had the impairments of depression, anxiety,

and PTSD (Tr. 35, 116-17). Dr. Carver opined that none of Plaintiff’s impairments met or

equaled any listing and that Plaintiff has no impairment in understanding, remembering and

applying information; moderate social functioning impairment; mild impairment in her ability to

maintain concentration, persistence or pace; and no impairment in adapting and managing

oneself (Tr. 36, 119-21). In support of his findings, Dr. Carver indicated that Plaintiff’s

medications had been unchanged for 15 years, that MRIs of Plaintiff’s brain were normal, and

that, when offered psychotherapy, Plaintiff declined (Tr. 35, 117, 119, 620). See Tr. 413

(“Patient reported to Dr. Brenner during initial presentation that she had previously had 5 MRI’s

[sic] in the military (see neurology note dated October 31, 2001). However, a recent MRI W/O

CONT was ordered due to chronic symptoms. MRI results dated 4/12/02 . . . indicated normal

findings.”) (internal emphasis omitted). Dr. Carver further testified that Plaintiff’s regular

medication management and medication regimen afford her the ability to function within these

stated limitations (Tr. 36, 121, 124). The ALJ afforded Dr. Carver’s opinion “substantial

evidentiary weight,” finding his opinion to be consistent with the record as a whole (Tr. 36). As

addressed in more detail above, the Court concurs as Plaintiff’s sporadic treatment history

indicates that her impairments are largely controlled with medication and medication

management. The ALJ was permitted to rely upon the opinion of the non-examining medical

expert to the extent it was consistent with other reliable evidence. Tuggle v. Comm’r of Soc. Sec.

Admin., No. 2:18-CV-04107-NKL, 2019 WL 1980702, at *3 (W.D. Mo. May 3, 2019) (citing

Turpin v. Colvin, 750 F.3d 989, 993-4 (8th Cir. 2014)).

In addition to the medical opinion evidence of record, the ALJ also properly considered

Plaintiff’s VA disability rating. The VA determined that Plaintiff was eligible for disability

benefits, finding her rated at 100% for a service-connected disability (Tr. 254, 499-500). An

ALJ must consider the VA’s finding of disability. Morrison v. Apfel, 146 F.3d 625, 628 (8th Cir.

1998). However, “the ALJ is not bound by the disability rating of another agency when he is

evaluating whether the claimant is disabled for purposes of social security benefits[.]” Pelkey v.

Barnhart, 433 F.3d 575, 579 (8th Cir. 2006) (citing 20 C.F.R. § 404.1504; Fisher v. Shalala, 41

F.3d 1261, 1262 (8th Cir. 1994) (per curiam) (“There is no support for [the claimant's]

contention that his sixty-percent service-connected disability rating equates with an inability to

engage in any substantial gainful activity under social security standards.”)). In this case, the

ALJ specifically mentioned the disability rating (Tr. 24). In addition, “an ALJ gives proper

consideration to a VA disability determination if she considers and discusses the underlying

medical evidence contained in the VA’s Rating Decision.” Rael v. Soc. Sec. Admin., No.

8:07CV432, 2008 WL 4279707, *14 (D. Neb. Sept.16, 2008) (internal quotation omitted). See

also Pelkey, 433 F.3d at 579-80 (“the ALJ did not err because he fully considered the evidence

underlying the VA’s final conclusion that Pelkey was ... disabled”). Indeed, here, the ALJ

considered and discussed the medical evidence underlying the VA's disability determination (See

Tr. 23-34, 350-638, 654-1339). Thus, the ALJ gave proper consideration to the VA disability

determination.

To the extent Plaintiff identifies records that support Plaintiff's allegations, “[i]f

substantial evidence supports the decision, then we may not reverse, even if inconsistent

conclusions may be drawn from the evidence and even if we may have reached a different

outcome.” McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010).

In conclusion, the Court finds that the ALJ’s RFC determination is consistent with the

relevant evidence of record including the objective medical evidence, the observations of

medical providers, and diagnostic test results, as well as the evaluation of Plaintiff’s subjective

complaints.

D. Vocational Expert Testimony

Finally, the Court finds that the ALJ’s determination that Plaintiff could perform other

jobs in the national economy to be supported by substantial evidence. As addressed in more

detail above, the Court finds the ALJ’s RFC determination to be supported by substantial

evidence. Further, the hypothetical which the ALJ posed to the VE captured the concrete

consequences of Plaintiff’s limitations and included all of Plaintiff's impairments as supported by

substantial evidence in the record (See Tr. 137-53). An ALJ is required to include only a

claimant’s credible limitations in her hypothetical to the Vocational Expert. Martise v. Astrue,

641 F.3d 909, 927 (8th Cir. 2011) (“The ALJ’s hypothetical question to the vocational expert

needs to include only those impairments that the ALJ finds are substantially supported by the

record as a whole.”) (quoting Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006)); Wildman,

596 F.3d at 969 (“[T]he ALJ was not obligated to include limitations from opinions he properly

disregarded.”); Guilliams v. Barnhart, 393 F.3d 789, 804 (8th Cir. 2005) (holding that a proper

hypothetical sets forth impairments supported by substantial evidence and accepted as true by the

ALJ); Gilbert v. Apfel, 175 F.3d 602, 604 (8th Cir. 1999) (“In posing hypothetical questions to a

vocational expert, an ALJ must include all impairments he finds supported by the administrative

record.”). Because there was work which Plaintiff could perform, based on the testimony of the

VE and her independent review of the DOT, the ALJ found Plaintiff was not disabled. Martise,

641 F.3d at 927 (“Based on our previous conclusion ... that ‘the ALJ’s findings of [the

claimant’s] RFC are supported by substantial evidence,’ we hold that ‘[t]he hypothetical question

was therefore proper, and the VE’s answer constituted substantial evidence supporting the

Commissioner’s denial of benefits.’”) (quoting Lacroix, 465 F.3d at 889). As such, the court

finds that the ALJ posed a proper hypothetical to the VE; that the ALJ properly relied on the

VE’s testimony that there was work existing in significant numbers which Plaintiff could

perform; and that the ALJ’s finding that Plaintiff is not disabled is based on substantial evidence

and is consistent with the Regulations and case law.

V. CONCLUSION

For the reasons set forth above, the Court finds that substantial evidence on the record as

a whole supports the Commissioner’s decision that Plaintiff is not disabled.

Accordingly,

IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and

Plaintiff’s Complaint is DISMISSED, with prejudice.

A separate judgment shall be entered incorporating this Memorandum and Order.

Dated this 19th day of March, 2020.

/s/ Noelle C. Collins

NOELLE C. COLLINS

UNITED STATES MAGISTRATE JUDGE