Kevin Ross v. Martin O’Malley, Commissioner of the Social Security Administration1

United States Court of Appeals
For the Eighth Circuit
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No. 22-3126
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Kevin Ross
Plaintiff - Appellant
v.
Martin O’Malley, Commissioner of the Social Security Administration1
Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Northern
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Submitted: September 22, 2023
Filed: February 13, 2024
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Before SMITH, Chief Judge, MELLOY and ERICKSON, Circuit Judges.
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SMITH, Chief Judge.
1 On December 20, 2023, Martin O’Malley became the Commissioner of the
Social Security Administration and is substituted for Kilolo Kijakazi as defendant
in this action. See Fed. R. App. P. 43(C)(2).

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Kevin Ross appeals the district court’s2 decision affirming the denial of his
claim for disability insurance benefits. Because substantial evidence on the record
supports the administrative law judge’s (ALJ) decision, we affirm.
I. Background
On January 2, 2019, Ross protectively filed an application for disability
insurance benefits due to, inter alia, deep vein thrombosis in the left hip, a cervical
spine disc replacement, and a bulging disc in the lumbar spine. Based on these
ailments’ effects on Ross’s head, neck, and lower back, he contends that he is
incapable of working in the national economy. His application for benefits asserts
an onset date of December 10, 2018.
The Social Security Administration (SSA) denied Ross’s claim initially and
on review. At Ross’s request, an ALJ held a hearing on October 6, 2020, where he
appeared with counsel. At the hearing, the ALJ heard testimony from Ross and a
vocational expert. The ALJ issued his decision on November 13, 2020, finding that
Ross was not disabled and could work as a document preparer and surveillance
system monitor. The Appeals Council denied Ross’s request for review on July 27,
2021, making the ALJ’s decision the final decision of the Commissioner of the SSA.
Ross then sought judicial review of the ALJ’s decision in the district court. See 42
U.S.C. § 405(g). The district court affirmed the ALJ’s decision, and Ross appeals.
II. Discussion
We review de novo a district court’s decision affirming a denial of social
security disability benefits. Kraus v. Saul, 988 F.3d 1019, 1023 (8th Cir. 2021). “We
consider both evidence that detracts from the decision and evidence that supports it.”
Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011). This court will affirm the
decision “if the ALJ made no legal error and the ALJ’s decision is supported by
2 The Honorable Edie R. Ervin, United States Magistrate Judge for the Eastern
District of Arkansas, sitting by consent of the parties pursuant to 28 U.S.C. § 636(c).

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substantial evidence on the record as a whole.” Kraus, 988 F.3d at 1024 (internal
quotation marks omitted).
The standard for substantial evidence is not high. Substantial evidence requires
the record to contain “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). We will only disturb
the ALJ’s decision “if it falls outside the available zone of choice.” Kraus, 988 F.3d
at 1024 (quoting Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006)). A decision
is not outside of the zone of choice because this court might have reached a different
conclusion if we were the initial factfinder. Id. “If the record supports two inconsistent
conclusions, this court must affirm the Commissioner’s choice among those two
conclusions.” Bagwell v. Comm’r, Soc. Sec. Admin., 916 F.3d 1117, 1119 (8th Cir.
2019). Applying this standard of review, we affirm the district court.
A. Neck and Back Limitations
Ross first asserts that the ALJ overlooked Ross’s inability to move his neck
up and down. The record supports contradictory findings about the extent of Ross’s
neck movement. Ross does have decreased cervical rotation in his head and neck,
he experiences pain when rotating his neck, the area is mildly tender, and he has
radiculopathy affecting the area. However, the record also shows that when he went
to the emergency room for chronic neck pain in February 2019, the emergency room
physician did not find point tenderness or spinal step-offs. Later, when he went to
the emergency room for chest pain in June 2019, another physician indicated that he
had full range of neck motion. The record also contains a compromised February
2019 MRI3 in which Ross’s neck appears normal and an October 2019 X-ray of his
3 Medical hardware from previous cervical fusions compromised the MRI.
Although the MRI was unclear in spots, the reviewing personnel could still discern
that “[t]he lower cervical spine appears normal” and that there were “[n]o abnormal
signals . . . in the visualized spinal cord.” R. Doc. 12-8, at 46. When Dr. Robert
Abraham, Ross’s neurosurgeon, reviewed the MRI, he could read the images and

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cervical spine in which the examiner found “[s]table postoperative change with no
acute findings.” R. Doc. 12-8, at 112 (emphasis omitted).
The evidence may support a finding that Ross’s limited head and neck
movement prevents him from working in the national economy, but the evidence
also supports the contrary finding that he can perform the jobs of a document
preparer and surveillance system monitor. Because the record supports two
inconsistent conclusions, both of which are in the available zone of choice, the ALJ
did not err in his determination.
Next, Ross argues that substantial evidence does not support the ALJ’s
decision regarding his back limitations. The ALJ cited evidence showing a disc
protrusion at L5-S1, mild neuroforaminal stenosis, degenerative lumbar disease,
restrictive lumbar range, narrowing around Ross’s foraminal, and tenderness in his
lumbar spine. However, the ALJ also cited evidence showing a painless range of
motion in Ross’s back, as well as no disc herniation, spinal stenosis,4 foraminal
stenosis,5 or muscle spasms. Although the evidence may support a finding that
Ross’s back injuries preclude him from working in the national economy, the
evidence also supports the ALJ’s contrary finding. Because the evidence supports
found that the “films of the cervical spine revealed the hardware to be in good
position with an adequate spinal canal.” Id. at 104. Thus, although the MRI was
compromised, it was clear enough for Dr. Abraham to read and determine that
another MRI was not necessary.
4 Spinal Stenosis is a narrowing of the spinal canal through which the spinal
cord runs. Spinal Stenosis, Johns Hopkins Med., https://www.hopkinsmedicine.org
/health/conditions-and-diseases/spinal-stenosis [https://perma.cc/GN9R-CN3G].
5 Foraminal Stenosis is a narrowing of smaller canal openings along the spine
that provide space for spinal nerves to deviate from the spinal cord and into other
areas of the body. Foraminal Stenosis, Cedars Sinai, https://www.cedars-
sinai.org/health-library/diseases-and-conditions/f/foraminal-stenosis.html
[https://perma.cc/8TED-LBU2].

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two inconsistent conclusions, and both conclusions are in the zone of choice, we
cannot reverse the ALJ’s determination.
Therefore, we affirm the district court because the ALJ had substantial
evidence for his decision.
B. Ross’s Credibility Assessment
Ross argues that the ALJ improperly discredited his testimony regarding the
severity of his symptoms.
“To assess [a claimant’s] credibility, the ALJ [must] consider all of the
evidence, including prior work records and observations by third parties and doctors
regarding daily activities, the duration, frequency, and intensity of pain, precipitating
and aggravating factors, the dosage, effectiveness, and side effects of medication,
and functional restrictions.” Lowe v. Apfel, 226 F.3d 969, 971–72 (8th Cir. 2000)
(citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). An ALJ is not
required to “explicitly discuss each factor, and we will defer to credibility
determinations that are supported by good reasons and substantial evidence.”
Schwandt v. Berryhill, 926 F.3d 1004, 1012 (8th Cir. 2019) (citation omitted). “An
ALJ may decline to credit a claimant’s subjective complaints if the evidence as a
whole is inconsistent with the claimant’s testimony.” Id. (internal quotation marks
omitted)). Moreover, an ALJ may rely “upon discrepancies between [a claimant’s]
allegations of pain and h[is] treatment history, medicinal selections, and daily
activities in disregarding h[is] subjective complaints.” Davis v. Apfel, 239 F.3d 962,
968 (8th Cir. 2001).
Schwandt guides our analysis. In Schwandt, we upheld the ALJ’s
determination that the claimant’s subjective testimony was not credible because the
medical record undermined her account of having a knee disability. 926 F.3d at
1012. There, the record showed that she had “normal motor strength in her upper
and lower extremities,” her pain fluctuated between high and low levels, and her
knee had full extension, normal range of motion, and stability. Id. “Viewing the

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record as a whole, [we held that] good reasons and substantial evidence support[ed]
the ALJ’s decision to discount [the claimant’s] credibility.” Id.
In Ross’s case, as in Schwandt, medical evidence on the record supports the
ALJ’s decision to discount his testimony. The ALJ relied on MRIs from July 2014
and September 2015, a neurosurgeon’s February 2019 exam, a compromised MRI
from February 2019, and an MRI report from July 2019 to support his finding that
Ross did not have a spinal disability excluding him from all jobs in the national
economy. In deciding that Ross did not have qualifying edema, the ALJ
acknowledged that edema was found in a January 2019 exam but noted that edema
was not found when Ross visited the emergency room in June 2019. Finally,
regarding Ross’s claims that he has peripheral neuropathy, difficulty getting up from
a seated position, imbalance while standing or walking, and struggles to use his
upper extremities, the ALJ cited an exam by Ross’s neurosurgeon that found his
motor and sensory functions intact.
In addition, discrepancies in Ross’s testimony and his function reports further
support the ALJ’s credibility determination. Ross testified that he cannot bend or lift
because of his back and that his neck problem limits his ability to look up, down,
and around. These impairments, he testified, require him to change seating positions
every 30 minutes and limits his ability to walk or stand for more than 30 minutes.
His function reports list sleeping, dressing, bathing, and shaving as problematic. The
same reports note that he helps with cooking and makes small repairs around the
house. Ross credits his ability to take breaks as the reason he can perform those
activities. The record also shows that he can drive short distances,6 shops in stores
once a month, fishes from the bank of a pond, and that the summer before his
6 During the ALJ hearing, Ross stated that he no longer has a driver’s license.
But in his function reports in February and October 2019, he indicated that he drives
a car. During oral argument, his counsel also indicated that Ross could drive short
distances. The record is unclear regarding why Ross no longer has a driver’s license
or when he stopped operating a motor vehicle.

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disability hearing he helped his friend’s business by operating a riding mower for a
couple of hours with breaks every 20 to 30 minutes.
Ross’s testimony of performing small repairs, brief work riding a lawn
mower, and driving short distances, combined with his monthly trips to stores and
his ability to fish, contradicts his testimony that his head, neck, and back disabilities
completely prevent him from working in the national economy. Thus, good reasons
and substantial evidence supports the ALJ’s decision that “the intensity, persistence
and limiting effects of [Ross’s] symptoms are not entirely consistent with the
medical evidence and other evidence in the record.” R. Doc. 12-2, at 18.
Next, Ross contends that the ALJ should have given more weight to his long
work history when determining his credibility. We have held that “it is ordinarily
not error if the ALJ fails to explicitly discuss the claimant’s work history.” Smith v.
Comm’r, Soc. Sec. Admin., 738 F. App’x 889, 892 (8th Cir. 2018) (unpublished per
curiam) (citing Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005)). In Smith, we
reversed the district court and ordered remand so the ALJ could “more fully explain
his credibility determination.” Id. Here—as we have already noted—the record, as a
whole, supports the conclusion that Ross’s testimony is not credible. Therefore, the
ALJ’s failure to explicitly discuss Ross’s work record is not reversible error.
C. Hypothetical
Lastly, Ross contends that the ALJ posed a flawed hypothetical to the
vocational expert. Specifically, he asserts the query failed to include Ross’s asserted
limitations on vertical head and neck movement. “A hypothetical is sufficient if it
sets forth impairments supported by substantial evidence in the record and accepted
as true by the ALJ.” Davis, 239 F.3d at 966. “A hypothetical is not insufficient
because it does not include all the health limitations alleged by the claimant.” Kraus,
988 F.3d at 1027. The ALJ asked the vocational expert
to assume a hypothetical person the same age, education, same work
background as what we have in Mr. Ross’s circumstance. I’d like you

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to assume that person capable of performing sedentary exertion work
as it’s defined in the Dictionary of Occupational Titles with the
following restrictions and limits: Please consider work that does not
require climbing of ladders, ropes or scaffolds; no more than occasional
climbing of ramps or stairs, balancing, stooping, kneeling, crouching or
crawling duties; no exposure to unprotected heights in the workplace
and no lower extremity foot control operation duties required. . . .
[C]onsider if there would be occupations that do not require more than
occasional overhead reach responsibilities for the worker. . . . [A]re
there occupations nationally that you could recommend consistent with
the profile outlined . . . ?
R. Doc. 12-2, at 56.
The vocational expert answered that two jobs existed considering such a
profile: a document preparer and a surveillance system monitor. Id. at 56–57.
Although Ross may be correct that those jobs require some vertical head movement,
the ALJ had substantial evidence to disagree with Ross’s portrayal of his head and
neck limitations. Because the ALJ had substantial evidence to support his
determination, he did not err by omitting those limitations in the hypothetical.
III. Conclusion
Because there is substantial evidence on the whole record that supports the
ALJ’s decision, we affirm the district court.
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