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Gann v. Colvin

United States District Court, N.D. Iowa, Western Division

March 18, 2015


Order Filed: February 3, 2015

Page 858

For Bonnie Jean Gann, Plaintiff: Jay Elliott Denne, LEAD ATTORNEY, Munger, Reinschmidt & Denne, Sioux City, IA.

For Carolyn W Colvin, agent of Commissioner of Social Security, Defendant: Stephanie Johnson Wright, LEAD ATTORNEY, U.S. Attorney's Office, Northern District of Iowa, Cedar Rapids, IA; Chris Carillo, Social Security Administration, Office of General Counsel - Region VI - Dallas, Dallas, TX.

Page 859









A. Standard Of Review

B. ALJ's Findings That Gann's Fibromyalgia And Migraines

Were Not Severe Impairments Are Supported bye Substantial


1. Legal Standard

2. Analysis

C. ALJ's RFC Findings And Hypotheticals To VE Are

Supported By Substantial Evidence

1. Legal Standard

2. Analysis

D. ALJ's Decision To Discredit Gann Is Supported By

Substantial Evidence

1. Legal Standard

2. Analysis



This case is before me on a Report and Recommendation (R& R) from Magistrate Judge Leonard T. Strand, filed on February 3, 2015. Report (docket no. 18). In the R& R, Judge Strand recommends that I affirm the Commissioner's decision.

Page 860

On February 17, 2015, Bonnie Jean Gann (Gann) filed timely objections to the R& R. Plaintiff's Objections to the Report and Recommendation (hereafter Plaintiff's Objections) (docket no. 19). Gann's argument that I should reverse the Administrative Law Judge's (ALJ) denial of benefits as it is not supported by substantial evidence is three-fold: the ALJ erred in (1) finding Gann's migraine headaches and fibromyalgia were not " severe" impairments; (2) determining Gann's RFC and submitting an inadequate hypothetical question to the VE; and (3) discrediting Gann's subjective allegations. The Commissioner has not filed a response to Gann's objections, nor did the Commissioner file any objections to Judge Strand's R& R. The 14-day window in which parties may file objections is now closed. See 28 U.S.C. 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(2).

The complete facts are presented in the parties' briefs and Judge Strand's R& R. I recite the salient facts in the discussion section of this Memorandum Opinion and Order. For the reasons discussed below, I accept the recommendations of Judge Strand, and affirm the Commissioner's decision that Gann is not disabled. Accordingly, I enter judgment in favor of the Commissioner and against Gann.


On March 31, 2011, Gann filed for Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act). The Record (hereafter Tr.) at 156. Gann alleged that her disability began on January 1, 2000. Tr. 12. Gann's claim was denied on June 22, 2011. Tr. 83--90. After her claim was denied, Gann requested a reconsideration of her disability claim. Tr. 91--93. Gann's request for reconsideration was denied on August 22, 2011. Tr. 96--106. After filing a request for a hearing before an ALJ, the Honorable James D. Goodman, Gann had an administrative hearing on November 20, 2012. Tr. 32--65.

Following the ALJ's hearing, on February 7, 2013, the ALJ issued a ruling, finding Gann was not disabled between March 31, 2011 and February 7, 2013, and denying Gann's application for disability benefits. Tr. 25; see also Cruse v. Bowen, 867 F.2d 1183, 1185 (8th Cir. 1989) (noting that for SSI benefits, the period at issue is from the date of the claimant's filing of her application). Gann sought review of the ALJ's decision by the Appeals Council, which denied Gann's request for a review on January 24, 2014. Tr. 1--6. Thus, the ALJ's decision became the Commissioner's final decision. Tr. 1. On March 26, 2014, Gann brought suit in federal court seeking review of the Commissioner's decision.[1] Judge Strand's R& R followed on February 3, 2015, which recommends that I affirm the decision of the Commissioner and deny Gann's claim for disability benefits. Report at 1, 26.


Judge Strand rejected Gann's objections to the ALJ's decision. I briefly summarize Judge Strand's findings below. Then, I discuss the objections Gann raises in response to Judge Strand's R& R.

First, Judge Strand found that the ALJ's decision that Gann's impairments of fibromyalgia and migraine headaches were not " severe" is supported by substantial evidence. Report at 10. Judge Strand was convinced by the Commissioner's contention that, although Gann sometimes

Page 861

sought treatment for migraines and fibromyalgia, Gann did not establish that such conditions significantly impaired her ability to work. Id. " Simply pointing to instances in which Gann was treated for migraines and fibromyalgia, or stating that migraines occurred 'a lot,' does not demonstrate that these conditions significantly limited Gann's physical or mental ability to do basic work activities," wrote Judge Strand. Id. According to Judge Strand, the medical evidence did not support Gann's claim that migraine headaches and fibromyalgia significantly limited her ability to work. Id. at 11. In addition, Judge Strand found that the ALJ properly gave less credence to Gann's subjective allegations about these two impairments because they were unreliable. Id.

Second, Judge Strand found that the ALJ's assessments of Gann's mental and physical residual functional capacity (RFC) are supported by substantial evidence in the record. Id. at 17. " The ALJ provided a lengthy explanation, with precise citations to the record, for each component of the physical RFC and mental RFC." Id. In reaching that conclusion, Judge Strand was not convinced by Gann's two counter arguments, which sought to undermine the ALJ's RFC findings. Id. at 14.

In regards to Gann's first argument, Judge Strand reasoned that the ALJ's mental RFC finding is not contradicted by other findings in the ALJ's opinion or by Dr. Marandola's opinion. This is because mental impairments that may have been deemed " severe or not" at steps two and three of the ALJ's analysis " do not automatically translate into limitations on the claimant's ability to work." [2] Id. at 16. The RFC in this case, therefore, is not flawed merely " because it does not reflexively recite the ALJ's prior finding that Gann had marked difficulties with regard to concentration, persistence, or pace." Id. Additionally, the ALJ was not required to defer to Dr. Marandola's opinion unqualifiedly, or give it " controlling weight," in making an RFC determination only because the ALJ gave Dr. Marandola's opinion " great weight." Id. (citing 20 C.F.R. § 416.927(c)(2); Ellis v. Barnhart, 392 F.3d 988, 995 (8th Cir. 2005)). Rather, Judge Strand reiterates an essential point: " [T]he RFC must be reviewed in light of the entire record[.]" Id. at 16--17.

As to Gann's second argument, Judge Strand explained that the hypothetical questions posed to the vocational expert (VE), Jim van Eck, were not flawed by the ALJ's decision not to incorporate certain mental impairments discussed at step three of the ALJ's analysis.[3] Id. at 18--19. Quoting Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996), Judge Strand found that " [b]ecause the RFC was proper, hypothetical questions based on that RFC properly addressed 'those impairments that the ALJ finds are substantially supported by the record as a whole.'" Id. The VE's testimony elicited by the ALJ, based on the " properly-formed hypothetical questions," was, according to Judge Strand, " substantial evidence supporting the ALJ's finding that Gann is able to

Page 862

perform past relevant work." Id. at 19 (citing Hulsey v. Astrue, 622 F.3d 917, 922 (8th Cir. 2010)). Agreeing with the Commissioner, Judge Strand also explained that the " VE testimony was not necessary at step four, as it was Gann's burden to prove that she was unable to perform past relevant work." Id. at 19 n.4 (citing Lewis v. Barnhart, 353 F.3d 642, 648 (8th Cir. 2003)). Next, citing to Coffin v. Sullivan, 895 F.2d 1206 (8th Cir. 1990), Judge Strand took issue with Gann's misplaced reliance on Wallace v. Bowen, 869 F.2d 187 (3d Cir. 1989), a factually distinguishable case. Tr. 19--20. In doing so, Judge Strand articulated his rationale for finding that the ALJ was not required to conduct a new hearing, even though the VE's opinions were obtained after the hearing. Id. at 21. This is because, unlike the claimant's attorney in Wallace, who objected to post-hearing reports and did not waive the right to cross-examination, Gann's attorney " did not request the opportunity to cross-examine the VE." Id. at 21 (citing Tr. 282--83).

Third, Judge Strand found that the ALJ's decision to discount Gann's credibility was supported by substantial evidence. Report at 25--26. In explaining his rationale as to the credibility issue, Judge Strand recited the five reasons that the ALJ provided for " concluding that Gann's subjective allegations were 'less than fully credible[.]'" [4] Id. at 23. Then, Judge Strand rebutted two criticisms and agreed with one criticism made by Gann in regards to the ALJ's five reasons.

Agreeing with Gann, Judge Strand found that one of the ALJ's reasons for discrediting Gann's subjective allegations as to her mental health-- i.e., Gann did not receive regular mental health treatment after July 2012-- was not supported by the record. " [I]n fact, Gann saw Dr. Idahosa, a psychiatrist, on August 24, 2012, September 24, 2012, and October 22, 2012." Id. at 24 (citing Tr. 1157, 1159, 1161). For that reason, Judge Strand did " not consider that to be a good reason supporting the ALJ's decision to discredit Gann's subjective allegations." Id.

In addition, Judge Strand explained that it may be true that the ALJ erred by not accounting for some complaints by Gann to medical experts as to her lack of energy and motivation in 2011. Instead of indicating that there was " no evidence" of Gann complaining of her energy and motivation, a more accurate assessment by the ALJ would have been to indicate that there was " little " of such evidence. Id. Then again, Gann failed to object to the ALJ's statement that Gann's medication was never adjusted due to such complaints. Thus, Judge Strand found it was " not entirely inaccurate" for the ALJ to assert that Gann's " contemporaneous treatment records are not consistent with Gann's subjective allegations concerning energy and motivation." Id.

Disagreeing with Gann's " unsupported legal argument," Judge Strand found that the ALJ properly gave weight to a consultative examiner's (Physician Assistant (PA) James Rusch) concerns that Gann exaggerated her symptoms.[5] Id. at 25. Citing

Page 863

to Stephens v. Shalala, 46 F.3d 37, 39 (8th Cir. 1995), Judge Strand explained that " [c]learly, a claimant's past exaggeration of impairments is an appropriate credibility factor." Id. Judge Strand highlighted the fact that PA Rusch's report held up to critical scrutiny the credibility of Gann's statements as to her mental health, and " provided specific examples as to how, and why, [the examiner] believes Gann exaggerated her physical symptoms, as well." Id. Judge Strand also took issue with the fact that Gann did not address any of the " ALJ's other reasons for discounting her credibility," such as her daily activities, or ability to focus and concentrate during the ALJ's hearing. Id.


In Gann's brief, she makes three objections to Judge Strand's R& R. Below I summarize Gann's objections, following which I discuss the issues raised by Gann's brief. Then, I provide my rationale for adopting the findings in Judge Strand's R& R.

Gann initially contends that Judge Strand erred in finding that substantial evidence supports the ALJ's decision that Gann's fibromyalgia and migraines were not " severe" impairments. Plaintiff's Objections at 8. As to the migraines, Gann argues that the ALJ erred in stating that " there is nothing in the record to show that the claimant's history of migraine headaches . . . have any effect on her functioning." Id. at 9 (quoting Tr. 15). Citing to the record ( i.e., Tr. 915--939, 712, 733), Gann argues that she sought treatment in October of 2011 for headaches, and she testified that she got " migraine headaches 'a lot.'" Id. (quoting Tr. 49--50). As to the fibromyalgia, Gann contends that the ALJ erred in stating that " treatment records throughout 2011 and 2012 do not refer to any specific fibromyalgia treatments." Id. Citing to four pages of the record ( i.e., Tr. 712, 731, 748, 761), Gann makes the case that fibromyalgia treatments are discussed " at various places in the record." Id. Gann advances her argument by contending that neither the ALJ nor Judge Strand " adequately" accounted for the evidence relating to her treatment records for migraine headaches and fibromyalgia. Id. Gann also contends that the " underlying decisions" did not appropriately account for the standard articulated in Polaski v. Heckler, 739 F.2d 1320, 1321--22 (8th Cir. 1984) when considering Gann's subjective allegations to prove that her impairments were " severe." [6] Id. at 10.

Gann next argues that Judge Strand erred in finding that the ALJ's RFC determination and hypothetical questions to the VE were supported by substantial evidence. Id. at 11. The gravamen of Gann's contention is that the ALJ reached other conclusions in his decision that " conflicted" with his RFC findings and the hypothetical questions posed to the VE. Id. In particular, Gann focuses on the ALJ's conclusion that Gann had " marked difficulties with concentration, persistence, and pace," and the ALJ gave " great weight" to Dr. Marandola's report, but Dr. Marandola

Page 864

found " numerous mental health limitations and behavioral problems" with Gann. Id. at 11--12. According to Gann, the ALJ committed reversible error by not incorporating these mental limitations into his RFC findings, or the hypothetical questions posed to the VE. Id. at 12. Quoting a lengthy passage from Pickney, 96 F.3d at 296--97, Gann emphasizes " the importance of including all of a claimant's limitations in questioning the VE." Id. at 12--13. Relatedly, Gann takes issue with the ALJ's conclusion that she could work at a job with a stress level of " 5" --that is, midway between the stress of a dishwasher and an air traffic controller--based on the VE's responses to the ALJ's questioning, and medical professionals' opinions from 2010 to 2012 as to Gann's ability to handle stress. Id. at 13. " [N]o evidence in the record," Gann argues, " supports a conclusion that [Gann] could handle that level of stress." Id.

Gann's final argument is that Judge Strand erred in finding that the ALJ's decision as to Gann's credibility was supported by substantial evidence. Id. at 14. According to Gann, " The ALJ found that Gann's testimony regarding her physical and mental limitations was not credible, to the extent that she alleged limitations that exceeded the ALJ's [RFC] assessment." Id. However, Gann argues that because the ALJ's RFC assessment is flawed for leaving out limitations, the credibility findings of the ALJ are also " flawed." Id. In addition, Gann disagrees with the " factual bases" on which the ALJ's credibility findings rest. Id. She reemphasizes the points Judge Strand made as to the ALJ's mistaken assertions that the " record contains no evidence that the claimant complained of energy and motivation to any of her treating doctors," and that Gann did not seek " mental health treatment from a psychologist or psychiatrist after July 2012." Id. (quoting Tr. 23); see also Report at 23--24. Gann also criticizes Judge Strand's conclusion that the ALJ properly relied on PA James Rusch's opinion as his opinion is " inconsistent with numerous mental health providers in the record," and PA Rusch has an obvious bias and lack of expertise as to mental health. Id. at 14--15. Gann also disagrees with Judge Strand's characterization of this argument as an " unsupported legal argument" because, in an earlier brief, she referred to case law indicating that the Social Security Administration should not rely on a doctor's opinion outside of his expertise. Id. at 15 (citing Short v. Sullivan, 730 F.Supp. 955, 961 (S.D. Indiana 1989)). Citing to an opinion of the Seventh Circuit Court of Appeals, Larson v. Astrue, 615 F.3d 744, 752 (7th Cir. 2010), Gann also disagrees that her activities of daily living are incompatible with a finding of disability. Id. at 15--16.

Based on Gann's three objections to the R& R,[7] she requests that I " reject the

Page 865

Report and Recommendation, and reverse the decision of the Defendant with directions to award Supplemental Security Income benefits to [Gann]." Id. at 16. As an alternative, Gann requests that I " remand the case to the Social Security Administration for further proceedings." Id.


The focal point of my inquiry is whether to accept Judge Strand's R& R that there was substantial evidence in the record to support the ALJ's decision that Gann was not disabled since March 31, 2011, the date her application for disability was filed. See Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011). In resolving this matter, I consider each issue Gann presents--namely, whether: (1) substantial evidence supports the findings of the ALJ that Gann's fibromyalgia and migraines were not " severe" impairments; (2) the ALJ's RFC determination and hypothetical questions submitted to the VE were supported by substantial evidence; and (3) the ALJ's credibility finding was supported by substantial evidence in the record.

A. Standard Of Review

I review de novo the portion of the R& R to which Gann objects.[8] 28 U.S.C. § 636(b)(1)(C). The Commissioner does not raise any objections to Judge Strand's R& R. Therefore, I must " make a de novo determination" only as to the objections made by Gann. 28 U.S.C. § 636(b)(1)(C). I review the other portions of the R& R only for clear error. See Fed.R.Civ.P. 72(b) advisory committee's note (" When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." ). Having reviewed the 1177 pages of the administrative record, I find Judge Strand's recommendations--those which were not objected to by the parties--are not clearly erroneous.

As to the ALJ's decision to deny social security benefits, the ALJ's decision on this matter must be affirmed " if it is supported by substantial evidence on the record as a whole." Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006) (citing Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)). " Substantial evidence is 'less than a preponderance but is enough that a reasonable mind would find it adequate to support' [the Commissioner's] conclusion." Eichelberger v. Barnhart, 390 F.3d 584, 589 (8th Cir. 2004) (quoting Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002)). " If substantial evidence supports the ALJ's decision, [the Court] will not reverse the decision merely because substantial evidence would have also supported a contrary outcome, or because [the Court] would have decided differently." Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (citing McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). The Eighth Circuit Court of Appeals has indicated that it " defer[s] heavily to the findings and conclusions of the Social Security Administration." Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010)

Page 866

(citing Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001)).

B. ALJ's Findings That Gann's Fibromyalgia And Migraines Were Not Severe Impairments Are Supported By Substantial Evidence

1. Legal Standard

The ALJ considers whether a claimant's impairment is " severe" at the second step of the ALJ's five-step analysis. According to the Eighth Circuit Court of Appeals, a " severe impairment" is defined as an impairment that " 'significantly limits [the claimant's] physical or mental ability to do basic work activities.'" [9] Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011) (quoting Pelkey, 433 F.3d at 577). " A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [the claimant's] statement of symptoms . . ." Id. (quoting 20 C.F.R. § 404.1508). The burden is on the plaintiff to prove that her impairment, or combination of impairments, is " severe." See Mittelstedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000) (citing Wilcutts v. Apfel, 143 F.3d 1134, 1137 (8th Cir. 1998)).

If the impairment only amounts to a " slight abnormality that would not significantly limit the claimant's physical or mental ability to do basic work activities," then the impairment is " not severe." Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). " Severity is not an onerous requirement for the claimant to meet," the Eighth Circuit Court of Appeals has explained, " but it is also not a toothless standard, and [the appellate court] [has] upheld on numerous occasions the Commissioner's finding that a claimant has failed to make this showing." Id. at 708 (citations omitted); see also Martise, 641 F.3d at 924 (finding claimant's condition of migraine headaches did not constitute a severe impairment where the record was " void of any diagnostic testing" ; the claimant worked during the time she sought regular treatment for her impairment and there was no medical evidence that the impairment worsened; and the claimant's impairment " responded to medication." ).

2. Analysis

I agree with the ALJ's opinion and Judge Strand's R& R that Gann has not met her burden of proving that her impairments of fibromyalgia and migraine headaches are " severe" impairments. See Mittelstedt, 204 F.3d at 852.

First, the record lacks sufficient medical evidence to support Gann's claim that her impairments " significantly" limit her ability to perform basic work activities. Report at 10; see also Martise, 641 F.3d at 923; Kirby, 500 F.3d at 707; Marolf v. Sullivan, 981 F.2d 976, 978 (8th Cir. 1992) (" [P]roof of a disabling impairment must be supported by at least some objective medical evidence." ) (emphasis added). Although it is true that Gann was treated for her migraine headaches and fibromyalgia, Judge Strand is correct in finding that Gann failed to demonstrate how her alleged impairments " significantly" limited her physical and mental abilities to perform basic work activities. Report at 10; see also Martise, 641 F.3d at 923.

Second, although not discussed by Judge Strand in his R& R, I am further convinced

Page 867

that Gann's fibromyalgia and migraines were not " severe" impairments because both impairments were successfully controlled with medication. See Martise, 641 F.3d at 924; see also Wildman, 596 F.3d at 965 (" If an impairment can be controlled by treatment or medication, it cannot be considered disabling." (quoting Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004))); Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999) (" Impairments that are controllable or amendable to treatment do not support a finding of total disability." ). For instance, Gann's brief, objecting to Judge Strand's R& R, provides that her migraine headaches were controlled with medication, including Topiramate, Lyrica, and Cymbalta. Plaintiff's Objections at 9 (citing Tr. 712, 733). Additionally, Gann's brief provides that her fibromyalgia was controlled with medication, including Lyrica and Cymbalta. Id. (citing Tr. 712, 731, 748, 761). Surprisingly, when asked at the ALJ's hearing what medications she currently takes, Gann did not indicate that she was taking any of the medications referenced in her brief to treat her migraine headaches and fibromyalgia. While indicating that she does not experience any side effects from the use of the medications prescribed by her psychiatrist, Gann suggested that the changes in her medication were attributed to an overdose.[10]

Finally, as discussed in greater detail below, the ALJ was convinced that Gann's subjective allegations as to the nature and severity of her impairments were exaggerated and unreliable. Report at 10 (Tr. 23--24). Indeed, the ALJ stressed that one consultative examiner, Dr. Douglas W. Martin, " observed that 'every place that [he] touched' elicited pain response from [Gann]" when she was being examined for allegations of fibromyalgia. Tr. 15, 19. " Another consultative examiner questioned the legitimacy of [Gann's] pain response during an examination[.]" Id. at 15. The record also provides that experienced examiners, PA Rusch and Dr. Krohn, opined that Gann was an " expert manipulator," who seemed to have prepared for her consultative examination. Tr. 293. This is because Gann listed multiple mental health diagnoses and medications without error or notes, and seemed to exaggerate her impairments. Tr. 23, 293. Taking into account PA Rusch's and Dr. Krohn's report, the ALJ wrote, " Efforts to impede accurate testing and evaluation support a finding of poor credibility." Tr. 23. Reaching the same conclusion as Judge Strand, I find the evidence supports the ALJ's credibility assessment and decision to discredit Gann's subjective allegations as to her migraine headaches and fibromyalgia. For all the reasons discussed above, substantial evidence supports the ALJ's findings that Gann's fibromyalgia and migraines were not " severe" impairments.

C. ALJ's RFC Findings And Hypotheticals To VE Are Supported By Substantial Evidence

1. Legal Standard

If it is determined by the ALJ that the claimant's impairments do not meet or equal a listed impairment, then at step four of the ALJ's five-step analysis, the ALJ will consider the claimant's RFC. See 20 C.F.R. § 404.1520(a)(4)(iv). A

Page 868

claimant's RFC is " the most a claimant can still do despite his or her physical or mental limitations." Martise, 641 F.3d at 923 (quoting Leckenby v. Astrue, 487 F.3d 626, 631 n.5 (8th Cir. 2007)). " [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[.]" Lauer v. Apfel, 245 F.3d 700, 703-04 (8th Cir. 2001) (quoting Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir. 2000) ( per curiam ); Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000)) (internal citations and quotation marks omitted).

However, " the ALJ [is] not limited to considering medical evidence . . . ." Id. at 704. Rather, the ALJ must " assess[] a claimant's residual functional capacity based on all relevant evidence." Guilliams, 393 F.3d at 803 (quoting Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000)). Relevant evidence includes " medical records, observations of treating physicians and others, and an individual's own description of his limitations." Lacroix v. Barnhart, 465 F.3d 881, 887 (8th Cir. 2006) (quoting Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004) (internal quotation and citation omitted)). " [T]he burden of persuasion to prove disability and demonstrate RFC remains on the claimant." Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) (citing Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004)).

In analyzing a claimant's RFC at step five, as Judge Strand rightly noted in his R& R, the Commissioner " ordinarily can rely on the testimony of a VE to show the claimant can perform other work." Report at 12 (citing 20 C.F.R. § 416.966(e); Robson v. Astrue, 526 F.3d 389, 392 (8th Cir. 2008)). On the one hand, a VE's " testimony based on hypothetical questions that do not encompass all relevant impairments cannot constitute substantial evidence to support the ALJ's decision." Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994) (citing Rappoport v. Sullivan, 942 F.2d 1320, 1323 (8th Cir. 1991)). On the other hand, a VE's " testimony constitutes substantial evidence when it is based on a hypothetical that accounts for all of the claimant's proven impairments." Hulsey, 622 F.3d at 922 (citing Grissom v. Barnhart, 416 F.3d 834, 837 (8th Cir. 2005)). That is to say, the ALJ's hypothetical questions " need[ ] to include only those impairments that the ALJ finds are substantially supported by the record as a whole." Hinchey, 29 F.3d at 432 (citing Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993)).

2. Analysis

I find that the ALJ's decision that Gann retains the physical and mental RFC to perform light and medium work is supported by substantial evidence in the record.[11] Judge Strand rejected Gann's argument that a " marked limitation" found by the ALJ at step three of the sequential evaluation process must be included in the RFC findings used at steps four and five. Report at 15. As Judge Strand correctly explained, " The RFC is not simply a laundry

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list of impairments and limitations," rather, " it is an explanation of 'what [the claimant] can still do' despite his or her 'physical or mental impairments.'" Id. (quoting 20 C.F.R. § 404.1545(a)(1)). Thus, the ALJ, in determining Gann's RFC, appropriately considered the entire record and not merely his prior step two or three findings. In reaching the same conclusion as Judge Strand, I am persuaded by the case law that he referenced in his R& R,[12] which indicates that, even if a claimant has a severe condition, that fact alone is not definitive of whether the claimant is able to work. Id. at 15--16.

In addition, the ALJ weighed the merits of Dr. Marandola's cited limitations with the record to determine the appropriate RFC for Gann. Concurring with the ALJ's opinion and Judge Strand's R& R, I find that the ALJ resolved the seemingly conflicting statements in Dr. Marandola's report when reaching his RFC findings. While the ALJ restricted Gann to " occasional contact with co-workers and supervisors" and a lower stress level, based on Dr. Marandola's opinion, the ALJ noted that Dr. Marandola " found that [Gann] had fluent speech, a neutral mood and affect, logical, coherent and goal directed thought processes[.]" Tr. 20. " In addition, [Gann] displayed orientation (not exact as to time) and no problems with tasks testing her registration, naming, repetition, comprehension, reading, writing, and drawing[.]" Tr. 20, 435. Although Gann made " errors on serial seven calculations and recalled two out of three words after a brief interval," she could perform serial three subtractions without difficulty. Tr. 21. An ALJ assesses the RFC of a claimant based on all of the relevant evidence, which includes " medical records, observations of treating physicians and others, and claimant's own descriptions of his or her limitations." Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004) (citation omitted). In evaluating Gann's RFC, the ALJ properly considered " all of the relevant evidence," including giving " great weight" to Dr. Marandola's opinion, before finding Gann not disabled.[13] Id.

Also in agreement with Judge Strand, I find that the ALJ's physical and mental RFC determinations are supported by substantial evidence in the record. In regards to Gann's physical RFC findings, the ALJ reviewed Gann's treatment records and opinion evidence from 2011 and 2012 and reasonably concluded that she could perform work at a medium or light exertional level based on such records. Tr. 18--19. " Most recently, in July 2012, [Gann] had a slow gait, but she had a 5/5 on motor strength, intact coordination, the ability to heel to toe walk without difficulty, a negative Romberg test, normal sensation, and normal reflexes," wrote the ALJ. Tr. 19.

Page 870

The ALJ properly accounted for Gann's obesity; the ALJ noted that no evidence suggested additional physical limitations were necessary on that basis. Report at 17 (citing Tr. 19).

Concerning Gann's mental RFC findings, the ALJ thoroughly reviewed and analyzed Gann's records. The ALJ determined that, although restrictions on Gann's ability to tolerate stress were necessary, which is consistent with the ALJ's step three finding, Gann could perform work. Tr. 20--21. In analyzing the medical opinions as to Gann's mental impairments, the ALJ gave " great weight" to Dr. Marandola's opinion, and accordingly, restricted Gann's contact with co-workers and supervisors and stress level.[14]Id. Unlike other medical experts of record, Dr. Marandola reviewed the record at the hearing level and examined Gann. Tr. 20--22. In addition to the record indicating that Gann is not prevented from performing her daily activities based on mental impairments, there is other evidence in the record to suggest that Gann is mentally competent. The record, for example, contains evidence that Gann can concentrate to read, watch movies, ...

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