Mayra Dominguez-Cortez v. Michael B. Mukasey

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-3855
___________
Linda S. Musial, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Michael J. Astrue, Commissioner *
of Social Security, * [UNPUBLISHED]
*
Appellee. *
___________
Submitted: October 1, 2009
Filed: October 6, 2009
___________
Before WOLLMAN, RILEY, and SMITH, Circuit Judges.
___________
PER CURIAM.
Linda Sue Musial appeals from the district court’s 1 order affirming the final
decision of the Commissioner of Social Security, which denied her application for
disability insurance benefits and supplemental security income. In her October 2001
application, Musial alleged she has been disabled since August 2001. After a hearing,
an administrative law judge (ALJ) determined that Musial’s impairments were severe
in combination but did not equal a listed impairment; her allegations regarding the
1The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.

-- 1 of 3 --

degree of her pain and limitations were not fully credible; she had the residual
functional capacity (RFC) to perform light work with some additional limitations; she
could perform her past relevant work (PRW) of data entry clerk, accounting clerk, and
telephone operator; and the Medical-Vocational Guidelines directed a finding of “not
disabled.” We reject Musial’s arguments for reversal as follows.
Musial argues that the ALJ disregarded the opinions of her treating physicians
and instead accorded significant weight to the assessment of Dr. Robert Hughes, a
state agency medical consultant who did not examine her. Dr. Hughes essentially
found that Musial had the RFC to perform light work, with occasional climbing.
Because Musial did not provide medical evidence of specific functional restrictions
imposed by her treating doctors that conflicted with Dr. Hughes’s RFC analysis, we
find the ALJ did not err in crediting his opinion. Although Musial points to treatment
notes from Dr. Gregory Markway as indicating that she must lie down for two hours
after standing for two hours, the record shows that Dr. Markway was relating Musial’s
comments to him rather than giving his opinion. Musial also points to a letter from
Dr. Karlynn Sievers indicating that Musial required frequent rest breaks to control her
pain. Dr. Sievers, however, did not provide a function-by-function analysis of
Musial’s limitations, and it is unclear what is meant by “frequent rest breaks.”
Finally, Dr. Ann Warner, a rheumatologist who treated Musial for fibromyalgia,
indicated that she would not give an opinion that Musial was unable to work. See
Dunahoo v. Apfel, 241 F.3d 1033, 1038-39 (8th Cir. 2001) (ALJ’s credibility
determination was supported by substantial evidence where he recited appropriate
factors and noted inconsistencies in record, such as lack of physician-ordered
functional restrictions).
We hold that the ALJ’s credibility finding is supported by consideration of
Musial’s medical records, her daily activities, and her admission that she would have
been able to continue working in August 2001 if she had not been let go for salary
reasons. See Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (if adequately
-2-

-- 2 of 3 --

explained and supported, credibility findings are for ALJ to make). Finally, the ALJ
elicited testimony from the vocational expert that, given the RFC the ALJ found
supported by the record, Musial could perform her PRW as it is performed in the
national economy. See 20 C.F.R. § 404.1560(b)(2) (VE may offer evidence
concerning demands of claimant’s PRW, either as claimant actually performed it or
as generally performed in national economy); Wagner v. Astrue, 499 F.3d 842, 853-54
(8th Cir. 2007) (ALJ may properly elicit testimony from VE in evaluating claimant’s
capacity to perform PRW, and may look at functional demands as required by
employers in national economy).
Accordingly, we affirm.
______________________________
-3-

-- 3 of 3 --