Opinion
8:03CV3327.
September 27, 2004
MEMORANDUM AND ORDER
The plaintiff appeals from a final decision of the defendant denying his application for supplemental security income benefits under Title XVI of the Act, 42 U.S.C. § 1381 et seq. The parties filed supporting and opposing briefs. Filing Nos. 14, 15.
The decision of the Appeals Council on April 16, 2002, which denied the plaintiff's request for review of the Administrative Law Judge's decision denying him benefits, stands as the final decision of the defendant. It is that denial of review and the underlying decision of the ALJ which the court examines in this memorandum and order.
SUMMARY OF THE RECORD
In General. The plaintiff was forty-five years old at the time of the hearing before the ALJ. He did not finish high school, but does have two years of technical school. His previous work experience includes jobs as a bartender, factory worker, electrician apprentice, bench assembler, and rubber-cutting machine tender. He claims he is entitled to benefits because of back and knee problems, carotid artery problems, blindness in his right eye and associated vision difficulties, headaches, heart problems, fatigue, dizziness, memory problems, and depression. He alleges that he has been unable to work since March 29, 2000, the date on which he began to experience vision loss in his right eye.
In answers to interrogatories dated August 7, 2001 — the same day as the plaintiff's hearing before the ALJ — the plaintiff stated that he could walk six blocks on a good day; stand for two hours before he must sit or lie down; sit one and a half hours before he must stand up or lie down. Filing No. 10, TR 22, ¶ 10 (TR). He also stated that in an eight-hour day, he could stand for four to five hours, walk for one half hour, and sit for four hours. Id., ¶ 11. He stated he could lift fifteen pounds with one hand and twenty-five pounds with both hands. Id., ¶ 12.
Medical Records. The medical record in this case begins in October 1998 when the plaintiff sought treatment for chronic low back pain with acute muscle spasms in the lumbar region. TR 183. A CT scan evidenced herniation. TR 182. His treating physician, Dr. M.J. Hanich, M.D., prescribed Flexeril, Percocet, Ultram, and physical therapy and referred him to Dr. Ramon R. Salumbides, M.D., a neurosurgeon. TR 182, 183. Dr. Salumbides determined in November 1998 that the plaintiff's pain was caused by large herniated discs at L4-5 and L5-S1. He recommended physical therapy and Lodine. TR 222. Although Dr. Salumbides stated that the "magnitude of this disc herniation and extrusion" would eventually require surgery, TR 22, the transcript does not show that the plaintiff subsequently sought other treatment for back pain during the period in question here.
The plaintiff also has a history of cardiac problems for which he sought treatment in the 90s, including mitral valve prolapse, angina (in 1991, 1994, and twice in 1997), and a catherization in 1997.The treatment records for those conditions are not part of the transcript in this case.
Between March 29 and April 2, 2000, the plaintiff lost vision in his right eye. A CT scan of the plaintiff's head showed no abnormalities. TR 135. On April 20, 2000, the plaintiff had bilateral carotid and left vertebral angiograms. TR 130. They revealed that the right internal carotid artery was completely occluded at its origin. TR 131. The plaintiff began to take aspirin, but apparently his physicians ordered no other treatment or medications. TR 180, 181.
On May 8, 2000, a vascular surgeon at the Nebraska Medical Center, Dr. Thomas Lynch, M.D., evaluated the plaintiff at the request of Dr. Hanich. TR 212. An arteriogram continued to show complete occlusion of the right internal carotid artery; an echocardiogram was normal. Dr. Lynch stated in his progress note that the plaintiff continued to have right-sided headache and dizziness after losing his eyesight. TR 138. Dr. Lynch found that the plaintiff's cranial nerves were grossly intact except for the visual loss in the right eye. Id. He also found that the plaintiff's back showed no evidence of kyphoscoliosis, that his gait was normal, that his muscle strength and tone were grossly normal, and that there was no evidence of muscle atrophy. Id. Dr. Lynch concluded that the plaintiff's vision loss was caused either by an embolus to the carotid artery from the heart, based on the plaintiff's prior history of coronary artery disease, or by a carotid dissection. TR 139. He recommended that the plaintiff take the anti-coagulant Coumadin, but ordered no further treatment or evaluation apart from a repeat carotid duplex in six months. Id. A note by Dr. Hanich in June 2000 states that the plaintiff was "very reluctant" to use Coumadin, but "[h]e should be using at least aspirin." TR 212. The record contains no evidence that the plaintiff ever began a course of treatment using Coumadin.
In a letter dated September 6, 2001, Dr. Diana Lind, D.O., of the Kearney Eye Institute wrote that on May 31, 2000, she examined the plaintiff, finding that he "certainly has a limitation in his visual fields." TR 226. She stated that his "visual acuity was reported to be hand motion in his right eye and 20/80 in his left eye uncorrected. However, corrected he measured 20/25 in the right eye and 20/20 in the left eye." Id. The plaintiff's subjective visual field was constricted on the right and full on the left. Color desaturation was down in his right eye. Id.
In a letter dated August 28, 2001, Dr. Betsy Turk, O.D., wrote that she had examined the plaintiff on September 24, 2000, finding that his "[b]est corrected visual acuity was NO LIGHT PERCEPTION OD and 20/20 OS." TR 225 (emphasis in original). She described the plaintiff as "legally blind in his right eye from optic nerve damage secondary to a stroke in 1999." Id. She also noted that the plaintiff lacked depth perception "due to loss of binocularity." Id.
In September 2000, Dr. Glen Knosp, M.D., performed a records-only physical residual function capacity assessment of the plaintiff on behalf of the defendant. Dr. Knosp concluded that the plaintiff's condition did not meet or equal any listing. "Limitations are related entirely to visual loss of right eye, and he appears capable of light work with visual precautions." TR 156.
Dr. Hanich completed a "physical capacities checklist" on the plaintiff in July 2001. He indicated that the plaintiff could work part time for four hours a day, and stand, sit, walk, and stand/sit with breaks for two hours. He indicated the plaintiff could not walk and could not work a full-time job. Based on an eight-hour day, Dr. Hanich limited the plaintiff to lifting and carrying no more than ten pounds and to reaching above shoulder level only occasionally, and restricted the plaintiff from ever climbing, balancing, stooping/bending, kneeling, crawling, squatting, twisting, pulling/pushing, reaching, handling, or fingering. He also indicated the plaintiff could be exposed to frequent indoor or outdoor contacts; occasional heat, cold, or noise; but no moving machinery, dust, fumes, gases, chemicals, marked changes in temperature, humidity, or unprotected heights. TR 217-19. Psychological Records. Dr. Michael C. Renner, Ph. D., evaluated the plaintiff in June 2000 at the request of the Nebraska Disability Determination Section. Dr. Renner noted significant deficits in memory functioning based on the plaintiff's performance on the Wechsler Memory Scale, the only procedure Dr. Renner used to assess the plaintiff. TR 142. Dr. Renner noted particular deficits in immediate, visual delayed, general, and working memory. He found that the plaintiff had "good insight into ongoing difficulties with aspects of depression, aspects of anxiety and significant cognitive dysfunction with particular deficits in thinking, concentrating, focusing his attention and staying on task." Id. Dr. Renner reported that the plaintiff complained of memory, thinking, concentrating, and attention problems; severe back pain that reached "the upper end of nine" on a one-to-ten scale; and "significant moodiness, irritability, anger, frustration and low frustration tolerance." TR 143-44. Despite these complaints, however, the plaintiff reported that he could take care of his personal hygiene, fix light meals, drink coffee with friends at a bar, watch TV, do a little fishing, and go out with his girlfriend. Id. Dr. Renner's diagnostic impression included dementia, pain disorder associated with both psychological factors and general medical condition, dysthymia, generalized anxiety disorder, and nicotine dependence (Axis I); blocked carotid artery on the right side with loss of vision in the right eye, headaches, dizziness, loss of memory, and general confusion (Axis III); and significant deficits in coping effectively in both work and home settings due to ongoing pain, depression, anxiety, and cognitive and memory deficits (Axis IV). TR 144-45.
In September 2000, Dr. Linda Schmechel, Ph. D., conducted a Psychiatric Review Technique of the plaintiff on behalf of the defendant and found the plaintiff's mental condition to be nonsevere. TR 168. She criticized Dr. Renner's report for its lack of objective descriptions of the plaintiff's functioning apart from scores on the Wechsler Memory Scale and for its reliance on the plaintiff's subjective reports. She also criticized Dr. Renner's evaluation of the plaintiff's scores on the Wechsler Memory Scale, since "those scores which do not require vision were within the borderline range; those which require vision or are based upon incorporating other scales that do require vision, were in the index 65-69 range." Id. She further criticized Dr. Renner's diagnoses of dementia, anxiety, pain disorder, dysthymia, and nicotine dependence because "not all of those are corroborated by objective evidence." Id. She stated that the plaintiff's "mental/cognitive efficiency" might be reduced by dysthymia, "but this does not rise above `mild' level." Id. Moreover, she noted that Dr. Renner failed to inquire about the plaintiff's drug and alcohol involvement "despite the episodic drinking reported by other sources." Id. She concluded that the plaintiff's "reduced vision interferes with doing his prior work, but mental condition is not a major factor in his current functioning." Id.
For example, in April 2000 Dr. Steffen at the Kearney Clinic noted that the plaintiff was "a binge drinker." TR 174. The plaintiff's treating physician, Dr. Hanich, noted that the plaintiff "[h]ad been drinking only a couple of beers" when he began to experience vision problems. TR 181. Dr. Lynch reported that the plaintiff drank six beers per week. TR 137.
Dr. Rebecca Braymen, Ph. D., also with the Nebraska Disability Determinations Section, conducted a second Psychiatric Review Technique in October 2000. She agreed with Dr. Schmechel's critique of Dr. Renner's report, stating that a dementia diagnosis "is not substantiated by the evidence." TR 199. She found that the plaintiff's overall "mental findings" indicated a nonsevere impairment, particularly since the plaintiff could care for his own personal needs, visit with others, drive, and provide a detailed self-history. Id. She also noted that the plaintiff did not see a mental health professional for his self-reported depression and was not on any medications for depression. Id. Hearing Testimony. The plaintiff appeared before the ALJ on August 7, 2001. He testified that the biggest problem that kept him from working was "major headaches all the time, everyday." TR 234. Heat makes the headaches worse. TR 236. The headaches cause recurrent dizzy spells; during one such spell, he fell down the stairs in his home, breaking two toes and cracking his foot. TR 243-44. He explained that he also has two herniated discs and two ruptured discs; "one eye," which resulted in "low depth perception"; and "a long history of heart problems." TR 234. The loss of vision makes reading difficult. TR 244. He suffers back pain if he lifts anything too heavy and when the weather changes from cold to hot. TR 245. In addition, cold weather makes it difficult for him to breathe. TR 249, 259. He testified that he takes aspirin to thin his blood, Tylenol for his headaches, vitamins, and Celebrex, an anti-inflammatory, for arthritis. TR 234, 243. He will not take Coumadin as a blood thinner because he is afraid that if he cut himself, he could bleed to death before he got help. TR 256.
During a typical day, the plaintiff testified that he gets up, goes out to put the sprinkler on the garden, goes to town to drink coffee with a friend, comes home to take an hour or hour and a half nap, walks the dog for a block and back, watches television, and naps again. TR 237-38, 246, 248. The plaintiff can take care of his own personal hygiene, but they take him longer. TR 250. The plaintiff's fiancée does all the household chores. TR 238. He rarely goes out at night because of his vision problems; he cannot drive at night unless the street is brightly lit. TR 240-41, 249. He no longer belongs to any clubs or organizations. TR 245.
The plaintiff thought he could stand in one position for no more than forty-five minutes at a time and sit for no more than an hour and a half. TR 247. In an eight-hour day, he thought he could stand, in total, a "couple of hours," or about two hours if alternating setting and standing. TR 252, 254. He estimated he could lift ten pounds with one hand and, once or twice a day, lift a light grocery sack with two hands. TR 251. He thought he could walk for about half an hour or about six blocks. TR 252.
The plaintiff described his memory problems as frustrating. Simple words or even the names of old friends will escape him. TR 240. He will not remember to do something unless it is written down for him. Id. He also described fifteen- to twenty-minute episodes where he will "just go blank," not remembering what he was doing. TR 241. Concentrating is difficult, even during face-to-face conversations. TR 248, 254. His fiancée testified that the plaintiff does not see a counselor for any of his problems. TR 263.
Most of the testimony of the plaintiff's girlfriend was apparently not transcribed, since it appears on less than half a page in the transcript. See TR 263. The ALJ's decision, however, describes her testimony in detail. TR 27.
Dean M. Venter, a vocational expert, testified on the plaintiff's behalf that based on the record, his interview of the plaintiff, and the testimony at the hearing, he did not believe that the plaintiff could engage in any gainful employment. TR 265. The plaintiff's standing and walking limitations restricted him to sedentary work and his memory and concentration difficulties restricted him to unskilled work. The plaintiff's visual problems, particularly loss of depth perception, prevented him from doing any unskilled sedentary job requiring fine manipulation. The plaintiff's need to lie down in a darkened room for significant periods to control his headaches would preclude him from taking most jobs. TR 266. Venter admitted to the ALJ that he relied on but did not conduct the sort of functional capacity evaluation Dr. Hanich had performed. TR 268. Venter testified that the plaintiff could not work as a telemarketer because the position was stressful and because "with his problems with depression and memory [he] would have all kinds of problems calling people." Id. Finally, Venter testified that the plaintiff's scores on the Wechsler Memory Scale given in Dr. Renner's report "eliminate[d] employability." TR 269.
Gail Leonhardt, also a vocational expert, appeared on behalf of the defendant. The ALJ first asked hypothetically if a person with the plaintiff's age, education, past work history, exertional and skill limitations; who could lift twenty pounds occasionally and ten pounds frequently; who could walk, sit, and stand for four hours a day with normal breaks; who was blind in one eye; and who could occasionally stoop and crouch but could not climb on ladders or scaffolds, had to avoid hazards such as open machinery, heights, heat cold, fumes and odors, could do any of the plaintiff's past relevant work. Leonhardt testified that such a person could function as a bartender or a bench assembler. TR 272. The ALJ then asked hypothetically whether, given all the conditions of the first hypothetical, and assuming that a person could understand and follow simple directions but not detailed or complex directions, the person could still work as a bartender or bench assembler. Leonhardt said yes. Id. The plaintiff's attorney asked whether, if depth perception problems were added to the hypothetical, the person would still be able to do bench assembly. Leonhardt indicated the person most likely could not. TR 274-75. According to Leonhardt, the person would also be able to work as a phone solicitor, a cashier, and a light packager if depth perception difficulties were not include in the hypothetical. TR 275. These jobs exist in adequate numbers in both the national and regional economies. TR 276.
Leonhardt also testified that if Dr. Hanich's physical capacities checklist were used, the plaintiff would not be able to work at all. TR 272-73.
LEGAL STANDARD
A disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505. A claimant is disabled when the claimant is "not only unable to do his previous work but cannot, considering . . . his age, education and work experience, engage in any other kind of substantial gainful work which exists in [significant numbers in] the national economy . . . either in the region in which such individual lives or in several regions of the country." 42 U.S.C. § 432(d)(2)(A).
An ALJ evaluates a disability claim according to a five-step sequential analysis prescribed by Social Security regulations. The ALJ examines
any current work activity, the severity of the claimant's impairments, the claimant's residual functional capacity and age, education and work experience. See 20 C.F.R. § 404.1520(a); Braswell v. Heckler, 733 F.2d 531, 533 (8th Cir. 1984). If a claimant suffers from an impairment that is included in the listing of presumptively disabling impairments (the Listings), or suffers from an impairment equal to such listed impairment, the claimant will be determined disabled without considering age, education, or work experience. See Braswell, 733 F.2d at 533. If the Commissioner finds that the claimant does not meet the Listings but is nevertheless unable to perform his or her past work, the burden of proof shifts to the Commissioner to prove, first, that the claimant retains the residual functional capacity to perform other kinds of work, and second, that other such work exists in substantial numbers in the national economy. See Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000). A claimant's residual functional capacity is a medical question. See id. at 858.Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000).
Using this analysis, the ALJ concluded that the plaintiff was not disabled within the meaning of the Social Security Act, TR 31, ¶ 7, and hence not eligible for benefits, id., ¶ 8. According to the ALJ, the evidence established that the plaintiff had the following medically determinable impairments that imposed more than slight limitations in his ability to function: herniated disc at L4-5 and L5-S1; loss of vision in the right eye; headaches; knee pain; and a history of heart problems. TR 30, ¶ 2. The ALJ determined, however, that the plaintiff's medically determinable impairments do not meet or medically equal any of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. Id., ¶ 3. While the impairments limit the plaintiff's ability to perform work-related functions, the ALJ found that the plaintiff retained a fair range of activities of daily living. The ALJ found that the plaintiff
The ALJ did not make a formal finding about the plaintiff's alleged mental impairments, but did state in his opinion that "any mental impairment experienced by the claimant is non-severe in nature. . . . Although he alleges some problems with memory and testing supports that problem, they are not so severe that they would cause more than mild limitations in his ability to function." TR 20.
can lift 20 pounds occasionally and 10 pounds frequently; can walk and stand for a period of four hours in an eight hour workday; can sit for a period of four hours in an eight hour workday with normal breaks; is blind in one eye (right eye); can occasionally stoop and crouch. He cannot work on ladders or scaffold; should avoid hazards such as any type of open machinery and heights; should avoid heat, cold, fumes, and odors. Can understand and follow simple directions but not detailed or complex directions. He cannot perform jobs requiring depth perception.Id. The ALJ found that the plaintiff's testimony about his impairments and limitations was not credible under the criteria in 20 C.F.R. 404.1529, 20 C.F.R. 416.929, Social Security Ruling 96-7p, and Polaski v. Heckler, 739 F.2d 1320, (8th Cir. 1984). Id., ¶ 6. The ALJ concluded, however, that while the plaintiff's impairments and limitations kept him from performing his past relevant work, the plaintiff had the residual functional capacity for other light work (with some restrictions) in jobs that existed in the regional and national economies in significant numbers. Id., ¶¶ 4-5.
When reviewing the decision not to award disability benefits, the district court does not act as a fact-finder or substitute its judgment for the judgment of the ALJ or the Commissioner. Bates v. Chater, 54 F.3d 529, 532 (8th Cir. 1995). Rather, the district court will affirm the Commissioner's decision to deny benefits if it is supported by substantial evidence in the record as a whole. Eback v. Chater, 94 F.3d 410, 411 (8th Cir. 1996). Under this standard, substantial evidence means something "less than a preponderance" of the evidence, Kelley v. Callahan, 133 F.3d 583, 587 (8th Cir. 1998), but "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 401 (1971); accord Ellison v. Sullivan, 921 F.2d 816, 818 (8th Cir. 1990). "Substantial evidence is that which a reasonable mind would find as adequate to support the ALJ's decision." Brown v. Chater, 87 F.3d 963, 964 (8th Cir. 1996) (citing Baumgarten v. Chater, 75 F.3d 366, 368 (8th Cir. 1996)). In determining whether the evidence in the record is substantial, the court must consider "evidence that detracts from the Commissioner's decision as well as evidence that supports it." Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999).
DISCUSSION
The plaintiff contends, first, that the ALJ failed to give "good reasons for the weight he gave the opinion of Plainitff's treating source physician," Dr. Hanich. Filing No. 14, Pl.'s Brief at 10. According to the plaintiff, the ALJ's findings with regard to residual functional capacity reject those found in Dr. Hanich's physical capacities checklist, but the ALJ did not explain why he had rejected Dr. Hanich's findings. The plaintiff contends that Social Security regulations require the ALJ to "give good reasons in [the] notice of determination or decision for the weight [given] your treating source's opinion." 20 C.F.R. § 404.1527.
With regard to Dr. Hanich's physical capacities checklist, the ALJ stated in his decision,
There does seem to be some conflict within this report. Dr. Hanich reported that the claimant could only work part-time (four hours a day) but at the same time indicated the claimant could stand for two hours, sit for two hours, and stand/sit with the normal breaks for two hours. He also indicated in another part of the report that the plaintiff could (with normal breaks) sit for two hours, stand for two hours, walk for two hours, alternately sit/stand for two hours for a total of eight hours during a normal workday. He did indicate the claimant would have difficulty with fine manipulating on a repetitive basis. He indicated the claimant could not return to his past work but would be able to return to other work with the restrictions noted in his report.
TR 20. Dr. Hanich's conclusions are not discussed anywhere else in the decision, nor is the "conflict" within the report examined. The plaintiff suggests that if the ALJ cumulated the four two-hour periods during which Dr. Hanich said the plaintiff could stand, sit, walk, or sit/stand, he might have seen a conflict between eight cumulated hours and Dr. Hanich's conclusion that the plaintiff could work for no more than four hours a day. The plaintiff contends that the more reasonable explanation of Dr. Hanich's report is that he would allow the plaintiff to "do any combination of these activities in 2 hour segments up to a maximum of 4 hours per day." Filing No. 14, Pl.'s Brief at 15. Further, the plaintiff contends that if the ALJ saw an inconsistency in Dr. Hanich's report, the ALJ could have asked the doctor for clarification. Instead, the ALJ discounted this report of the plaintiff's treating physician on the basis of a "conflict" the ALJ did not bother to describe, explore, or resolve. The ALJ then substituted his findings for Dr. Hanich's findings, deciding that the plaintiff could lift twenty pounds occasionally and ten pounds frequently, and could walk, stand, and sit for four hours in an eight-hour workday.
While the treating physician's opinion about the nature and severity of the plaintiff's impairment is entitled to substantial weight, it must nevertheless be supported by medically acceptable clinical or diagnostic data that is consistent with other evidence in the record. See 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2); Prosch v. Apfel, 201 F.3d 1010, 1013-14 (8th Cir. 2000). The defendant contends that the ALJ discounted Dr. Hanich's restrictions on the physical capacities checklist because they were not supported by the medical record. In addition, the defendant contends that Dr. Hanich can hardly be considered a treating physician since the plaintiff saw him only a few times in the five years covered by the record. Moreover, the defendant contends, Dr. Hanich apparently filled out the physical capabilities checklist without a contemporaneous physical examination of the plaintiff.
The court finds that although the ALJ did not explicitly state the weight assigned to Dr. Hanich's opinion, the ALJ clearly discounted it as not supported by other medical evidence in the record. No other clinical or diagnostic data suggest that the plaintiff is as severely restricted as Dr. Hanich finds, and no other doctors — not the neurosurgeon who treated the plaintiff's back pain in 1995, not the vascular surgeon who examined the plaintiff after he lost his eyesight in 2000, not the optometrists, not the psychologists — restricted the plaintiff's ability to work. Moreover, the record indicates that the plaintiff apparently saw a doctor only occasionally and at the time of the hearing was taking only vitamins, aspirin, Tylenol, and Celebrex. As such, the ALJ was entitled to discount the plaintiff's claim that he was too disabled to work. See Gwathney v. Chater, 104 F.3d 1043, 1045 (8th Cir. 1997) (failure to seek medical care for physical and mental problems contradicts subjective complaints of disabling condition). The ALJ therefore was not obliged to accept Dr. Hanich's opinion when the other medical evidence in the record did not support that opinion. Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997).
The second issue the plaintiff raises is whether the ALJ used improper hypothetical questions when examining Gail Leonhardt, the vocational expert. The plaintiff contends that the hypothetical questions that the ALJ posed did not fairly reflect the plaintiff's abilities and impairments as evidenced in the record. See Morse v. Shalala, 32 F.3d 1228, 1230 (8th Cir. 1994) ("In order for an ALJ to rely on a vocational expert's opinion, the posed hypothetical must accurately describe a claimant's impairments."). The plaintiff argues that although the ALJ referred to Dr. Hanich's restrictions in the third hypothetical question, he apparently rejected them outright to arrive at the conclusion that the plaintiff could perform other jobs found in the national economy.
Further, the plaintiff argues, the ALJ erred by omitting from any hypothetical Dr. Renner's findings about the plaintiff's memory deficits. The plaintiff contends that Dr. Renner's findings constitute objective medical evidence which the ALJ was obliged to include in a hypothetical because those findings derive from the plaintiff's performance on the Wechsler Memory Scale. The plaintiff's vocational expert, Dean Venter, testified that the plaintiff's scores "would eliminate employability." TR 269. The plaintiff argues that because the ALJ's hypothetical questions thus failed to "include all of the claimant's impairments, limitations, and restrictions, or is otherwise inadequate, a vocational expert's response cannot constitute substantial evidence to support a conclusion of no disability." Baker v. Apfel, 159 F.3d 1140, 1144 (8th Cir. 1998) ( citing Greene v. Sullivan, 923 F.2d 99, 101 (8th Cir. 1991)).
The court finds the ALJ did not err in omitting from the hypothetical the results of Dr. Renner's testing. As discussed above, consultative psychologists found Dr. Renner's findings of limited value because 1) they were not corroborated by objective evidence, 2) the plaintiff's scores on the Weschler Memory Scale did not rise to the level of a severe impairment, 3) the plaintiff was able to care for his own needs, and 4) the plaintiff was not under medical care for his alleged depression. Because the psychological evidence in the record indicated that the plaintiff's mental impairment was not severe and that the plaintiff was able to understand and follow simple directions, the court finds that substantial evidence in the record supports the ALJ's findings.
IT IS THEREFORE ORDERED:
1. The plaintiff's complaint, Filing No. 1, is dismissed with costs and disbursements.
2. By separate order, judgment will be entered for the defendant in accordance with section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), affirming the decision of the ALJ in this matter.