Moran v. Chater, 1996 DSD 43

LAURA L. MORAN,
Plaintiff,
v.
SHIRLEY S. CHATER,
Commissioner of Social Security,
Defendant.
[1996 DSD 43]

United States District Court District of South Dakota - Western Division
CIV. 96-5048

MEMORANDUM OPINION AND ORDER

Filed December, 1996

RICHARD H. BATTEY, Chief Judge

NATURE AND PROCEDURAL HISTORY

[¶1] Pending are the claimant’s (Moran’s) and the defendant’s (Commissioner’s) cross- motions for summary judgment. Moran protectively filed an application for Title XVI supplemental security income and Title II disability insurance benefits1. Under Title II of the Social Security Act, a claimant is considered disabled “if he is unable to engage in any substantial 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 USC § 1382c(a)(3)(A). {fn1} on October 25, 1993 (protective filing date) (A.R. 80-92). Moran alleged disability as of June 22, 1991, due to a back injury, as well as leg and ankle impairment. Id. After being denied through the reconsideration level, she timely requested a hearing which was held before an Administrative Law Judge (ALJ) on November 3, 1994 (A.R. 19-28). At the hearing, Moran was represented by her attorney B. J. Jones (A.R. 19). Moran, her husband, and vocational expert William Tucker provided testimony at the hearing (A.R. 19). On March 30, 1995, the ALJ issued his decision denying the claims (A.R. 19-28). The ALJ determined that Moran was not disabled because she retained the residual functional capacity to perform most sedentary2. “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.” See 20 CFR §§ 404.1567(a), 416.967(a) (1996).{fn2} and some light3. “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” See 20 CFR §§ 404.1567(b), 416.967(b) (1996).{fn3} work a significant number of which exist in the regional and national economy (A.R. 27 (Finding 5), 28 (Finding 10)). On April 19, 1996, the Appeals Council declined review of the ALJ’s determination, making it the Commissioner’s final decision (A.R. 4-4A). See 20 CFR § 416.1481 (1996). On June 6, 1996, Moran commenced this action to review the Commissioner’s final decision denying her claims. See Docket #1.

[¶2] This Court has jurisdiction under 42 USC § 405(g) and 42 USC § 1383(c)(3). FACTS

[¶3] Moran was born in 1945, has a high school education, and was a sophomore in college at the time of the administrative hearing (A.R. 19). She has some vocational training in the health and social service field and her past relevant work includes working as a nurse’s aid and bartender (A.R. 19-20). On June 22, 1991, she sustained a back injury in the course of breaking up a fight while working as a bartender (A.R. 38). As of the date of her alleged onset of disability, she has worked in the work-study program at college which provides a monthly income of $312 (A.R. 20).

[¶4] A. MEDICAL EVIDENCE

[¶5] After the June 22, 1991, accident Moran undertook conservative treatment including muscle relaxants, epidural injection, and narcotic pain medications (A.R. 163). Because she did not respond to the conservative treatment, her treating physician and surgeon, Dr. Charles Allen, M.D., performed a lumbar laminectomy and discectomy for a herniated lumber disk at L4-5 in November of 1991 (A.R. 163-164). Dr. Allen indicated in his post-surgery evaluation that although Moran seemed to be doing “pretty well,” she had a negative straight leg raising test and a little sciatica down to her hip (A.R. 197). In an October 1992 follow-up evaluation, Dr. Allen reported that Moran had some intermittent low back pain and numbness in her left lower extremity, but noted that “[s]he is very mobile” (A.R. 195). On November 10, 1992, Dr. Allen rated Moran’s sensory loss and intermittent discomfort as 25 percent loss of her left lower extremity which converted to whole body amounts to 10 percent loss of function (A.R. 198).

[¶6] In November of 1992, Moran was examined by treating orthopedist M. E. Rhoades, M.D. (A.R. 187). Dr. Rhoades found no motor or sensory deficits and reported that x-rays were “unremarkable.” Id. He opined that Moran “will continue to have problems with her lower back and she should avoid any heavy lifting, bending or twisting.” Id. He further recommended vocational counseling. Id. Moran continued her gradual improvement until October of 1993, when she fell and exacerbated her condition (A.R. 176). However, according to Dr. Rhoades, new x-rays were “unremarkable” and Moran was diagnosed with only contusions and muscular ligamentous strain. Id. An MRI on November 15, 1993, revealed abnormalities of the surgical site and surrounding area (A.R. 275-76). This was interpreted as possible scar tissue or disc material which could be compromising the nerve root. Id. Arachnoiditis was inferred from the clumping of nerve roots at the L4-5 level. Id. In an update of Moran’s exertional capacity in February of 1994, Dr. Rhoades stated that Moran “should not be employed in a job that would require repetitive lifting, bending or twisting” (A.R. 168).

[¶7] In March of 1994, Dr. Allen concluded that Moran was neurologically intact (A.R. 194). He noted that a recent MRI of her lumbar spine showed nothing of “clinical significance” (A.R. 193). He further opined that Moran would not be able to return to her past work, a point not in dispute, and recommended, as did Dr. Rhoades 18 months previously, that she be retrained (A.R. 194). On April 19, 1994, Disability Determination Services (DDS) identified Moran’s impairments as “Disorders of the Back” and “Sprains and Strains All types” but concluded that she could do work that was less physically demanding (A.R. 111-12).

[¶8] On May 26, 1994, Dr. Rhoades evaluated Moran for left ankle and knee problems dating from a 1974 motor vehicle accident after which she had undergone a bone graft for fractures (A.R. 236, 278). He noted that she had done well until October of 1993 when she began to complain of a “locking sensation” in her left knee (A.R. 236). Dr. Rhoades performed arthroscopic surgery in August of 1994, after which he reported that her knee looked “good” (A.R. 244, 248, 279).

[¶9] In October of 1994, Dr. Allen reported that Moran was attending school and that she had not been on medication for “quite awhile” (A.R. 204). Dr. Allen opined that Moran “should not function in any type of activity requiring bending, lifting or stooping.” Id. He further advised her against lifting objects weighing more than 25 pounds and indicated that she would have difficulties with any activity requiring long periods of sitting. Id. Finally, Dr. Allen stated that “[f]rom a functional standpoint, she continues to be disabled” Id.4. The ALJ discounted this statement based on his conclusion that it was unsupported and was inconsistent with Dr. Allen’s own statements regarding Moran’s exertional limitations (A.R. 24).{fn4}

[¶10] After the November 3, 1994, hearing but prior to the ALJ’s March 30, 1995, decision denying the claims, Moran submitted a report of her first visit to Dr. J. D. Sabow, M.D., for neurological evaluation (A.R. 217). Dr. Sabow indicated in his report that Moran had a somewhat antalgic gait and noted the absence of left achilles reflex (A.R. 217, 23). He recommended Moran undergo a repeat MRI. Id. The MRI of November 17, 1994, revealed a mild bulging disc at L4-5 and probable adhesions or fibrosis at L4-5, but no severe spinal canal stenosis (A.R. 218). Dr. Sabow’s next report of December 22, 1994, was not before the ALJ but was considered by the Appeals Council (A.R. 220). Dr. Sabow reported abnormalities with scarring of the L4-5 nerve root, narrowing at L5-S1, and chronic changes at L3-4. Id. As did Dr. Allen, Dr. Sabow hesitated to recommend further surgery, stating that Moran “obviously has a significant disability due to the chronic back condition and fibrotic changes affecting the nerve roots at the surgical site.” Id.

[¶11] On May 2, 1995, after the ALJ issued his decision, Brigid M. Flatley, Ph.D., completed a mental health assessment which was submitted to the Appeals Council (A.R. 222). Dr. Flatley opined that Moran “has now not only severe and chronic physical pain, but she also has developed psychological problems that interfere with her normal functioning... . She appears to be severely depressed, and this is evidenced by her lack of interest in almost all activities... .” Id. In its review of the ALJ’s decision, the Appeals Council reviewed and considered both Dr. Sabow’s report of December 22, 1994, and Dr. Flatley’s mental health assessment and concluded that the additional evidence failed to provide a basis for changing the ALJ’s decision (A.R. 4).

[¶12] B. ALJ DECISION

[¶13] In evaluating Moran’s claim, the ALJ applied the five-step sequence specified in 20 CFR §§ 404.1520, 416.920 (AR. 20-26).5. The determination of whether a claimant is entitled to Title II disability insurance benefits or Title XVI supplemental security income benefits must be made according to the following five-step sequential evaluation. See 20 CFR § 404.1520 (Title II); 20 CFR § 416.920 (Title XVI). Step One: The ALJ must determine if the claimant is engaged in “substantial gainful activity.” If so, the claimant cannot be found disabled. Step Two: If the claimant is not engaged in substantial gainful activity, the ALJ must determine if the claimant suffers from a “severe impairment.” Step Three: If the claimant does have a severe impairment, the ALJ must next determine if this impairment meets or equals an impairment listed in 20 CFR Part 404, Subpt. P, App. 1. If the claimant has a listed impairment, then the claimant must be found to be disabled. Step Four: If the claimant does not have a listed impairment, the ALJ must determine whether the claimant can return to his or her past relevant work. If the claimant can return to past relevant work, he or she is not entitled to benefits. Step Five: If the claimant cannot return to past relevant work, then the burden shifts to the Commissioner to demonstrate that the claimant can do some other work which exists in substantial numbers in the national economy. If the Commissioner does not carry this burden, the claimant must be found to be disabled. {fn5} The ALJ first determined that based on the circumstances and income derived from her work study employment, Moran had not engaged in substantial gainful activity since June 22, 1991, her alleged onset date (A.R. 20). In step two of the sequential evaluation, the ALJ determined that Moran has a “severe impairment.” Id. The ALJ found that the evidence establishes that Moran suffers from degenerative disc disease of the lumbar spine, status post laminectomy and discectomy at the L4-5 vertebral level, and that she has problems with her left leg and ankle. Id.

[¶14] In step three of the sequential evaluation the ALJ reviewed the medical evidence of record and concluded that although Moran’s impairments are considered to be “severe,” they are not impairments which meet or equal an impairment listed in 20 CFR Part 404, Subpt. P, App. 1. (A.R. 20-21). The ALJ determined that the medical evidence did not establish pain, muscle spasm, or significant limitation of motion in the spine as to meet the requirements of Listing 1.05 (20 CFR Part 404, Subpt. P, App. 1, §1.05C). Id. The ALJ further concluded that the requirements of Listing 1.13 were not met because there was no evidence that a major function has been lost (A.R. 21).

[¶15] In step four of the sequential evaluation, the ALJ determined that based on the medical evidence and testimony, Moran would be unable to return to her past relevant work as a nurse’s aide or bartender (A.R. 25). Therefore, under step five of the sequential evaluation, the ALJ acknowledged that the Commissioner had the burden of proving that a significant number of jobs existed in the national economy which Moran could still perform considering her combined impairments, functional limitations, age, education, and past work experience. Id.

[¶16] Although the ALJ found Moran’s allegations about her condition and limitations to be substantially credible, he concluded that such allegations and the record as a whole did not support a conclusion that Moran’s symptoms were of such intensity as to preclude all substantial gainful activity (A.R. 21-26, 27 (Finding 4)). The ALJ determined that Moran has the residual functional capacity to perform the physical exertion requirements of most sedentary and some light work, such abilities including: (1) lifting up to fifteen pounds; (2) sitting for six hours in an eight-hour workday; (3) standing and/or walking for two to three hours of an eight-hour workday; (4) and maintaining attention, concentration, and/or memory levels needed for unskilled, entry level, sedentary work (A.R. 27 (Finding 5)).

[¶17] Based in part on the testimony of William Tucker, a vocational expert, the ALJ found Moran to have transferable work skills to cashiering. Id. In his assessment, the ALJ took into account the fact that Moran was 46 years old on the date of her alleged onset of disability, had a high school education and was in her sophomore year in college, and had prior work experiences as a nurse’s aid and bartender (A.R. 27 (Finding 8), 28 (Finding 9, 10)). The ALJ concluded that based upon the evidence of record that jobs exist in significant numbers in the national and regional economy which Moran is capable of performing (A.R. 28 (Finding 10)). Specifically, such occupations, as identified by the vocational expert, include: (1) cashier, of which 7,500 jobs exist in South Dakota and over 2,000,000 jobs exist in the national economy; (2) assembler of small parts, of which 3,500 jobs exist in South Dakota and 1,500,000 jobs exist in the national economy; (3) marker/labeler, of which 100 jobs exist in South Dakota and 40,000 jobs exist in the national economy; and (4) inspector/hand packager, of which 200 jobs exist in South Dakota and 300,000 jobs exist nationally. Id. Therefore, the ALJ concluded Moran cannot be found disabled as defined by the Social Security Act (A.R. 28 (Finding 11)). STANDARD OF REVIEW

[¶18] The decision of the ALJ must be upheld if it is supported by substantial evidence on the record as a whole. 42 USC § 405(g); Metz v. Shalala, 49 F3d 374, 376 (8th Cir. 1995) (citing Sullins v. Shalala, 25 F3d 601, 603 (8th Cir. 1994)); Smith v. Shalala, 987 F2d 1371, 1373 (8th Cir. 1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion. Shannon v. Chater, 54 F3d 484, 486 (8th Cir. 1995) (citing Richardson v. Perales, 402 US 389, 401, 91 SCt 1420, 1427, 28 LEd2d 842 (1971)). Review by this Court extends beyond a limited search for the existence of evidence supporting the Commissioner’s decision to include giving consideration to evidence in the record which fairly detracts from the decision. Brockman v. Sullivan, 987 F2d 1344, 1346 (8th Cir. 1993); Locher v. Sullivan, 968 F2d 725, 727 (8th Cir. 1992); Turley v. Sullivan, 939 F2d 524, 528 (8th Cir. 1991). However, the Court’s role under section 405(g) is to determine whether there is substantial evidence in the record as a whole to support the decision of the Commissioner and not to reweigh the evidence or try the issues de novo. Murphy v. Sullivan, 953 F2d 383, 384 (8th Cir. 1992). Furthermore, a reviewing court may not reverse the Commissioner’s decision “merely because substantial evidence would have supported an opposite decision.” Woolf v. Shalala, 3 F3d 1210, 1213 (8th Cir. 1993); Smith v. Shalala, 987 F2d at 1374 (citing Locher, 986 F2d at 727 (quoting Baker v. Heckler, 730 F2d 1147, 1150 (8th Cir. 1984))).

[¶19] In addition to reviewing the Commissioner’s decision to determine if it is supported by substantial evidence in the record as a whole, the Court must review the Commissioner’s decision to determine if an error of law has been committed. Smith v. Sullivan, 982 F2d 308, 311 (8th Cir. 1992); Nettles v. Schweiker, 714 F2d 833, 836 (8th Cir. 1983). The Commissioner’s conclusions of law are only persuasive, not binding, on the reviewing court. Smith, 982 F2d at 311; Satterfield v. Mathews, 483 FSupp 20, 22 (E.D. Ark. 1979), aff'd per curiam, 615 F2d 1288, 1289 (8th Cir. 1980). DISCUSSION

[¶20] In her motion for summary judgment, Moran seeks reversal of the ALJ’s decision based on the following grounds: (1) lack of substantial evidence supporting the ALJ’s Step 3 finding that Moran did not suffer from Listing 1.05 impairment; (2) failure of the ALJ to develop the record, specifically the evidence regarding Moran’s depression and anxiety; (3) failure of the ALJ and the Appeals Council to complete a Psychiatric Review Technique Form (PRTF) and to rely upon psychiatric expertise in doing so; and (4) failure of the ALJ to consider all of Moran’s impairments and functional limitations in combination, including pain, depression, and post-surgical complications; (5) failure of the ALJ to assess credibility and the functional impact of Moran’s pain in accordance with Eighth Circuit standards; (6) Commissioner’s failure to carry her burden of proof at step five of the sequential evaluation when the vocational expert’s (VE) testimony was based on the ALJ’s nonspecific hypothetical question; and (7) new and material evidence warrants remand.

[¶21] A. LISTING 1.05C (20 CFR Part 404, Subpt. P, App. 1, §105C)

[¶22] Listing 1.05C provides that a claimant is presumed disabled when the claimant suffers from a vertebrogenic disorder with the following persisting at least three months and expected to last twelve months despite prescribed therapy: 1. Pain, muscle spasm, and significant limitation of motion in the spine; and 2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss. 20 CFR Part 404, Subpt. P, App. 1, §1.05C. Moran’s contention that the ALJ failed to properly evaluate the Listing 1.05C impairment is misplaced. The objective medical evidence, particularly the numerous examinations by Dr. Allen and Dr. Rhoades support the ALJ’s finding that although Moran’s back impairment was “severe,” it did not equal in severity Listing 1.05C. See generally Comstock v. Chater, 91 F3d 1143, 1146 (8th Cir. 1996) (evidence supports ALJ’s finding that Moran’s back problems did not equal a listed impairment).

[¶23] The record reveals that in October of 1982, less than one year after Moran’s lumbar laminectomy and discectomy for a herniated lumber disk at L-4-5, Dr. Allen indicated in his follow-up evaluation that although Moran had some intermittent low back pain and numbness in her left lower extremity, “[s]he is very mobile.” In November of 1992, Dr. Rhoades found no motor or sensory deficits and reported that x-rays were “unremarkable.” The record indicates that Moran continued her gradual improvement until October of 1993, when she fell and exacerbated her condition. However, according to Dr. Rhoades new x-rays were “unremarkable” and Moran was diagnosed with only contusions and muscular ligamentous strain. In March of 1994, Dr. Allen concluded that Moran was neurologically intact, noting that a recent MRI of her lumbar spine showed nothing of “clinical significance.” He further opined that Moran would not be able to return to her past work, a point not in dispute, and recommended, as did Dr. Rhoades 18 months previously, that she be retrained. On April 19, 1994, Disability Determination Services (DDS) identified Moran’s impairments as “Disorders of the Back” and “Sprains and Strains All types” but concluded that she could do work that was less physically demanding. Finally, on October of 1994, a month prior to the administrative hearing, Dr. Allen reported that Moran was attending school and that she had not been on medication for “quite awhile.”

[¶24] Even though Dr. Allen opined that “[f]rom a functional standpoint, she continues to be disabled” the ALJ discounted this statement based on his conclusion that it was unsupported and was inconsistent with Dr. Allen’s own statements regarding Moran’s exertional limitations. See generally Ostronski v. Chater, 94 F3d 413, 420-21 (8th Cir. 1996) (holding that an ALJ is permitted to give a treating physician’s statement less than controlling weight if it is unsupported by clinical findings and inconsistent with an earlier evaluation). Based on the foregoing, the Court concludes that the ALJ’s finding that although Moran’s impairment was severe, it did not constitute a listing-level impairment is supported by substantial evidence in the record as a whole.

[¶25] B. DEPRESSION/ANXIETY AND PSYCHIATRIC REVIEW TECHNIQUE FORM (PRTF)

[¶26] Moran asserts that the ALJ failed to sufficiently develop the record specifically regarding evidence of Moran’s depression and anxiety and that both the ALJ and the Appeals Council failed to complete a Psychiatric Review Technique Form (PRTF). It is well established that even where a claimant is represented by counsel, the ALJ has a duty to fully and fairly develop the record. Boyd v. Sullivan, 960 F2d 733, 736 (8th Cir. 1992) (quoting Warner v. Heckler, 722 F2d 428, 431 (8th Cir. 1983)). The duty to develop the record may include ordering a consultative examination in appropriate cases. Dozier v. Heckler, 754 F2d 274, 276 (8th Cir. 1985). However, the regulations do not require the ALJ to order a consultative evaluation of every alleged impairment. See 20 CFR § 416.919a; Matthews v. Bowen, 879 F2d 422, 424 (8th Cir. 1989). The regulations require a consultive examination “when the evidence as a whole, both medical and nonmedical, is not sufficient to support a decision on [a] claim.” 20 CFR § 416.919a(b).

[¶27] The record reveals that Moran did not allege a mental impairment in her applications for benefits or at any stage of administrative review prior to the ALJ’s decision. Moran did testify that her pain and medications made her irritable and emotional and that she had difficulties sleeping (A.R. 46, 49). The ALJ acknowledged these allegations, but concluded that “in light of claimant’s demonstrated ability to attend college and to deal with coworkers and the public in her work study job, and in the absence of evaluation or treatment for these alleged problems, I must find that such problems have not significantly limited the claimant” (A.R. 24). Because there is substantial evidence in the record indicating that Moran did not have a medically determinable impairment attributable to mental problems, the ALJ was not required to seek a consultative psychiatric examination to evaluate the alleged anxiety and depression. See Mathews, 879 F2d at 424-25.

[¶28] Moran further contends that the failure of both the ALJ and the Appeals Council to complete the PRTF with assistance6. As recognized in Hardy v. Chater, 64 F3d 405 (8th Cir. 1995), “[t]his contention is contrary to the regulation, which expressly provides that, ‘the Administrative Law Judge may complete the [PRTF] without the assistance of a medical advisor.’” Id. at 408. See 20 CFR § 416.920(a)(d)(1)(i).{fn6} of a qualified psychiatrist or psychologist requires remand. See generally 42 USC § 421(h).7. Pursuant to 42 USC § 421(h), An initial determination under subsection (a), (c), (g), or (i) of this section that an individual is not under a disability, in any case where there is evidence which indicates the existence of a mental impairment, shall be made only if the Commissioner of Social Security has made every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment.{fn7} As previously discussed, there is substantial evidence in the record supporting the finding of no medically determinable mental impairment. Therefore, the ALJ violated neither the statute nor the agency’s regulation in resolving the mental impairment issue without the assistance of a psychiatrist or psychologist. See generally Russell v. Sullivan, 950 F2d 542, 544 (8th Cir. 1991) (indicating that only after the ALJ has determined that Moran suffers from a medically determinable mental disorder does the ALJ proceed with the rest of the requirements under 20 CFR § 416.920a). In her memorandum in support of her motion for summary judgment, Moran further asserts that The Appeals Council (but not the ALJ) had before it a qualified psychologist’s report of severe chronic depression associated with claimant’s chronic pain syndrom. The psychologist filled out a psychiatric review technique form, showing that the level of depression met the requirements of Listing 12.04 (see 20 CFR, Part 404, Subpt. P, App. 1, § 12.04). The Appeals Council neglected even to discuss this salient evidence that claimant was disabled based upon medical reasons alone. See Moran’s Brief in Support of Motion For Summary Judgment at 16. The report that Moran is referring to is the May 2, 1995, mental health assessment by Dr. Flatley (A.R. 222).

[¶29] The Appeals Council “must consider evidence submitted with a request for review ‘if the additional evidence is (a) new, (b) material, and (c) relates to the period on or before the date of the ALJ’s decision.’” Box v. Shalala, 52 F3d 168, 171 (8th Cir. 1995) (quoting Williams v. Sullivan, 905 F2d 214, 216-17 (8th Cir. 1990)). In its review of the ALJ’s decision, the Appeals Council considered Dr. Flatley’s mental health assessment and concluded that the additional evidence failed to provide a basis for changing the ALJ’s decision (A.R. 4). Clearly, Dr. Flatley’s observations were inapposite to the evidence before the ALJ, particularly Moran’s descriptions at the hearing concerning her full and varied daily activities. Thus, the Appeals Council did not commit error when it determined that Dr. Flatley’s mental health assessment which was based on a one-time evaluation did not warrant a reversal of the ALJ’s denial of the claims. See Box, 52 F3d at 172; Browning v. Sullivan, 958 F2d 817, 822-23 (8th Cir. 1992).

[¶30] C. COMBINED EFFECT OF MORAN’S IMPAIRMENTS AND LIMITATIONS

[¶31] Moran contends that the ALJ failed to consider the following impairments and function limitations in combination as they affect the jobs identified by the VE: (1) abnormal overgrowth of post-surgical scar tissue, MRI findings compatible with scar tissue wrapping around the nerve root, and arachnoiditis; (2) mental impairments and prescription drug dependence; (3) ankle impairment; and (4) physician imposed limitations on bending, repetitive lifting, stooping, and twisting. A review of the ALJ’s decision denying the claims reveals that these alleged impairments and function limitations were in fact considered in the overall determination by the ALJ. In addition, the VE listened to all of the testimony at the hearing, including Moran’s allegations about her condition and pain in order to aid in his assessment of Moran’s ability to perform jobs which exist in significant numbers in the regional and national economies (A.R. 25-26). See also (A.R. 70-78) (testimony of vocational expert, William Tucker). Therefore, this Court will not accept Moran’s invitation to reverse the denial of claims based on Moran’s allegations of failure to consider the combined effect of her impairments and limitations.

[¶32] D. CREDIBILITY ASSESSMENT

[¶33] Moran’s contention that the ALJ failed to follow Eighth Circuit standards and the agency’s own rules for assessment of Moran’s credibility lacks merit. The ALJ evaluated Moran’s subjective allegations in accord with the regulations found at 20 CFR §§ 404.1529, 416.929 and the decision of Polaski v. Heckler, 739 F2d 1320, 1322 (8th Cir. 1984). See (A.R. 21-25). The ALJ considered the medical and nonmedical evidence, and concluded that Moran’s allegations about her condition and limitations were substantially credible; however, such allegations and the record as a whole did not support a conclusion that her symptoms were of such intensity as to preclude all substantial gainful activity. See generally Ray v. Bowen, 865 F2d 222, 226 (10th Cir. 1989) (finding that Moran’s testimony, taken as fully credible, did not establish the presence of disabling pain). The ALJ’s findings concerning the credibility of Moran’s subjective complaints is supported by substantial evidence on the record as a whole. See Hutsell v. Sullivan, 892 F2d 747, 750 (8th Cir. 1989).

[¶34] At the hearing, Moran testified that despite her pain and discomfort she could do less strenuous work that might permit a sit/stand option (A.R. 39). See generally Mitchell v. Sullivan, 907 F2d 843, 844 (8th Cir. 1990) (finding it significant that claimant believed he could perform some type of work); Cruse v. Bowen, 867 F2d 1183, 1186 (8th Cir. 1989) (inability to work without some pain or discomfort is insufficient to satisfy the test for disability under the Act). Moran further testified that with medication she could probably sit for 45 minutes at a time and about six hours in an 8-hour workday, stand for a few hours a day, lift less than 15 pounds, and drive 90-100 miles before having to take a break (A.R. 51-53, 55). Moran was attending college classes full time and was employed approximately 20 hours per week in a work-study job at the college (A.R. 50-51, 56, 59-60). Her ability to attend school full time and engage in part-time employment militated against a finding that her pain was disabling. See generally Zenker v. Bowen, 872 F2d 268, 270-72 (8th Cir. 1989); Burkhalter v. Schweiker, 711 F2d 841, 842-45 (8th Cir. 1983); Gay v. Sullivan, 986 F2d 1336, 1339 (10th Cir. 1993); Sorenson v. Weinberger, 514 F2d 1112, 1118 (9th Cir. 1975); 20 CFR §§404.1572(a), 416.972(a) (1996). In addition, Moran testified that she helped with housework and caring for her 13-month-old child, went to church on Sundays, and did crossword puzzles and beadwork (A.R. 35, 47-49, 51, 69). See generally Shannon v. Chater, 54 F3d 484, 487 (8th Cir. 1995); Clark v. Shalala, 28 F3d 828, 831 (8th Cir. 1994) (ability to engage in full and varied daily activities, despite pain, supports a conclusion that symptoms were not of such intensity as to preclude all substantial gainful activity). Thus, Moran’s testimony is consistent with the residual functional capacity found by the ALJ, and the ALJ’s assessment of Moran’s credibility is supported by substantial evidence on the record as a whole.

[¶34] E. VOCATIONAL EXPERT (VE)

[¶35] Moran asserts that the Commissioner failed to carry her burden of proof at step five of the sequential evaluation because the VE’s testimony was based on the ALJ’s nonspecific hypothetical question. The Court disagrees. The ALJ’s hypothetical question accurately reflected all Moran’s pain and impairments which the ALJ found credible.8. As noted above, the ALJ concluded that Moran’s allegations about her condition and limitations were substantially credible; however, such allegations and the record as a whole did not support a conclusion that her symptoms were of such intensity as to preclude all substantial gainful activity. The ALJ based this conclusion on numerous items in the record that contradicted Moran’s complaints. {fn8} Roe v. Chater, 92 F3d 672, 675 (8th Cir. 1996) (the hypothetical question need only include those impairments that the ALJ finds are substantially supported by the record as a whole); Totz v. Sullivan, 961 F2d 727, 730 (8th Cir. 1992); Penn v. Sullivan, 896 F2d 313, 317 (8th Cir. 1990). Moran has not shown that the ALJ failed to accurately describe her conditions.

[¶36] As previously noted, the VE listened to all the testimony at the administrative hearing including Moran’s allegations about her condition and pain in order to aid in his assessment of Moran’s ability to perform jobs which exist in significant numbers in the regional and national economies. See generally Jenkins v. Bowen, 861 F2d 1083, 1086-87 (8th Cir. 1988) (noting the significance of the fact that the VE sat in on the entire hearing and listened to all the testimony). In posing the hypothetical question to the VE, the ALJ told the VE to assume that the hypothetical person was of Moran’s age, education, and previous work experience suffering from degenerative disc disease of the lumber spine, and to consider the limitations that she testified to at the hearing (A.R. 70-73). Such limitations included: (1) lower back, left knee, and angle pain; (2) tumor or growth in the spine area; (3) sleeping disorder; (4) limitations on sitting, standing, bending over, lifting, and driving; and (5) crying and irritability due to the medications. Id. Because the hypothetical question reflected an accurate account of Moran’s limitations, the ALJ was entitled to consider the opinion of the VE as reliable evidence of the existence of other work Moran could perform. See Onstad v. Shalala, 999 F2d 1232, 1234 (8th Cir. 1993).

[¶37] F. NEW AND MATERIAL EVIDENCE

[¶38] This Court has the authority to order the Commissioner to consider additional evidence, “‘only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence in the record in a prior proceeding.’” Hinchey v. Shalala, 29 F3d 428, 432 (8th Cir. 1994) (quoting 42 USC § 405(g) and Woolf, 3 F3d at 1215)). Moreover, “‘[t]o be material, new evidence must be non-cumulative, relevant, and probative of the claimant’s condition for the time period for which the benefits were denied, and there must be a reasonable likelihood that it would have changed the [Commissioner’s] determination.’” Id. at 432-33.

[¶39] The additional evidence includes the following items: (1) records of left knee and ankle pain after an accidental fall in June of 1995 with arthroscopic surgery in April of 1996; (2) February 1996 diagnosis of Hepatitis C; (3) August 1995 record indicating “oxycodone addiction;” and (4) references to her “chronic pain syndrome.” See Docket #10 (Exhibit A). Moran has failed to show that this additional evidence is probative of her condition during the relevant time period. Furthermore, because the ALJ properly considered the functional limitations of Moran’s pain and discomfort, and also the side effects of medication, there is no “reasonable likelihood” that this additional evidence would have changed the ALJ’s decision denying benefits. Therefore, the additional evidence does not provide justifiable grounds for remand. CONCLUSION

[¶40] The Commissioner’s decision that Moran is not disabled because she has the residual functional capacity to perform the physical exertion requirements of most sedentary work and some light work of which a substantial number exist in the national and regional economies is supported by substantial evidence in the record as a whole. Accordingly, it is hereby

[¶41] ORDERED that Moran’s motion for summary judgment (Docket #8) is denied.

[¶42] IT IS FURTHER ORDERED that the Commissioner’s motion for summary judgment (Docket #13) is granted. The Commissioner shall have judgment against Moran.