Erickson v. Commissioner of Social Security

Filing 17

REPORT AND RECOMMENDATION recommending that the district court affirm the decision of the ALJ re 4 Social Security Complaint. Objections to R&R due by 3/25/2025. Signed by Magistrate Judge Mark A. Roberts on 3/11/2025. (jag)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
BRIAN E.,

No. 24-cv-4010-LTS

Plaintiff,

REPORT AND
RECOMMENDATION

vs.
COMMISSIONER OF SOCIAL
SECURITY1,
Defendant.
____________________
Brian E. (“Claimant”) seeks judicial review of a final decision of the
Commissioner of Social Security (“the Commissioner”) in denying his application for
disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C.
Sections 401-34. For the reasons that follow, I recommend that the Commissioner’s
decision be affirmed.
I.

BACKGROUND

Claimant was born in 1991. (AR2 at 115.) He is a high school graduate. (Id. at
402.) Claimant allegedly became disabled due to a back injury with four fused vertebras,
nerve damage, depression, and PTSD. (Id. at 122.) Claimant’s onset of disability date
is May 5, 2020. (Id. at 116.) On August 1, 2020, Claimant filed his application for
DIB. (Id. at 115, 133.) His claim was denied originally on September 4, 2020 (id. at

1

On February 19, 2025, Leland Dudek was named the Acting Commissioner of Social Security.

2

“AR” cites refer to pages in the Administrative Record.

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115-120, 133), and was denied on reconsideration on December 20, 2020. (Id. at 12129, 133.) A hearing was held on December 1, 2021. (Id. at 133.) The ALJ issued an
unfavorable decision on December 14, 2021. (Id. at 133-146.) On December 14, 2022,
the Appeals Council remanded to the ALJ for further consideration, among other things,
of Claimant’s RFC. (Id. at 152-56.)
On remand, a second hearing was held on July 26, 2023, with Claimant and his
attorney Chellsie Weber3 appearing telephonically before Administrative Law Judge
(“ALJ”) Chris Yokus. (Id. at 80-114.) Vocational Expert (“VE”) Jennifer Ruhnke also
appeared at the hearing telephonically. (Id.) Claimant and the VE both testified at the
hearing. The ALJ issued an unfavorable decision on August 15, 2023. (Id. at 22-34.)
Claimant requested review and the Appeals Council denied review on December
11, 2023. (Id. at 1-3.) Accordingly, the ALJ’s August 15, 2023 decision stands as the
final administrative ruling in the matter and became the final decision of the
Commissioner. See 20 C.F.R. § 404.981.
On February 21, 2024, Claimant timely filed his Complaint in this Court. (Doc.
4.) On September 10, 2024, all briefing was completed, and the Honorable Leonard T.
Strand, United States District Court Judge, referred the case to me for a Report and
Recommendation.
II.

DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF

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 12 months.” 42 U.S.C. § 423(d)(1)(A). A claimant has a disability when,
due to physical or mental impairments, the claimant:
3

Claimant is represented by attorney John F. Carroll on the instant Social Security appeal in this
Court.

2

is not only unable to do [the claimant’s] previous work but cannot,
considering [the claimant’s] age, education, and work experience, engage
in any other kind of substantial gainful work which exists . . . in significant
numbers either in the region where such individual lives or in several
regions of the country.
42 U.S.C. § 423(d)(2)(A). A claimant is not disabled if the claimant is able to do work
that exists in the national economy but is unemployed due to an inability to find work,
lack of options in the local area, technological changes in a particular industry, economic
downturns, employer hiring practices, or other factors. 20 C.F.R. § 404.1566(c).
To determine whether a claimant has a disability, the Commissioner follows a fivestep sequential evaluation process. Swink v. Saul, 931 F.3d 765, 769 (8th Cir. 2019).
At steps one through four, the claimant has the burden to prove he or she is disabled; at
step five, the burden shifts to the Commissioner to prove there are jobs available in the
national economy. Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009). “If a claimant
fails to meet the criteria at any step in the evaluation of disability, the process ends and
the claimant is determined to be not disabled.” Pelkey v. Barnhart, 433 F.3d 575, 577
(8th Cir. 2006) (quotation omitted).
At step one, the ALJ will consider whether a claimant is engaged in “substantial
gainful activity.” Id. If so, the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
“Substantial activity is significant physical or mental work that is done on a full- or parttime basis. Gainful activity is simply work that is done for compensation.” Dukes
v. Barnhart, 436 F.3d 923, 927 (8th Cir. 2006) (citing Comstock v. Chater, 91 F.3d
1143, 1145 (8th Cir. 1996); 20 C.F.R. § 404.1572(a)-(b)).
If the claimant is not engaged in substantial gainful activity, at step two, the ALJ
decides if the claimant’s impairments are severe. 20 C.F.R. § 404.1520(a)(4)(ii). If the
impairments are not severe, then the claimant is not disabled. Id. An impairment is not
severe if it does not significantly limit a claimant’s “physical or mental ability to do basic

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work activities.” Id. § 404.1520(c). The ability to do basic work activities means the
ability and aptitude necessary to perform most jobs. Bowen v. Yuckert, 482 U.S. 137,
141 (1987); see also 20 C.F.R. § 404.1521(b). These include:
(1) physical functions such as walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing,
and speaking; (3) understanding, carrying out, and remembering simple
instructions; (4) use of judgment; (5) responding appropriately to
supervision, co-workers, and usual work situations; and (6) dealing with
changes in a routine work setting.
Id. (quotation omitted) (numbers added; internal brackets omitted).
If the claimant has a severe impairment, at step three, the ALJ will determine the
medical severity of the impairment. 20 C.F.R. § 404.1520(a)(4)(iii). If the impairment
meets or equals one of the impairments listed in the regulations (“the listings”), then “the
claimant is presumptively disabled without regard to age, education, and work
experience.” Tate v. Apfel, 167 F.3d 1191, 1196 (8th Cir. 1999) (quotation omitted).
If the claimant’s impairment is severe, but it does not meet or equal an impairment
in the listings, at step four, the ALJ will assess the claimant’s residual functional capacity
(“RFC”) and the demands of the claimant’s past relevant work.

20 C.F.R.

§ 404.1520(a)(4)(iv). RFC is the most an individual can do despite the combined effect
of all his or her credible limitations. Id. § 404.1545(a); Toland v. Colvin, 761 F.3d 931,
935 (8th Cir. 2014). RFC is based on all relevant evidence and the claimant is responsible
for providing the evidence the Commissioner will use to determine RFC. Eichelberger
v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). “Past relevant work” is any work the
claimant performed within the fifteen years prior to this application that was substantial
gainful activity and lasted long enough for the claimant to learn how to do it. 20 C.F.R.
§ 404.1560(b)(1). If a claimant retains the RFC to perform past relevant work, then the
claimant is not disabled. Id. § 404.1520(a)(4)(iv).

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At step five, if the claimant’s RFC will not allow the claimant to perform past
relevant work, then the burden shifts to the Commissioner to show that there is other
work the claimant can do, given the claimant’s RFC, age, education, and work
experience. Id. §§ 404.1520(a)(4)(v), 404.1560(c)(2). The ALJ must show not only that
the claimant’s RFC will allow the claimant to do other work, but also that other work
exists in significant numbers in the national economy. Eichelberger, 390 F.3d at 591
(citation omitted).
A.

The ALJ’s Findings
The ALJ made the following findings regarding Claimant’s disability status at each

step of the five-step process. Initially, the ALJ determined that Claimant met the insured
status requirements through December 31, 2025. (AR at 24.) The ALJ then applied the
first step of the analysis and determined that Claimant had not engaged in substantial
gainful activity from his alleged onset date of May 5, 2020. (Id.) At the second step,
the ALJ concluded from the medical evidence that Claimant suffered from the following
severe impairments: traumatic thoracic and lumbar fracture, status-post T-11-L-3 fusion,
anxiety, depression, ADHD, PTSD, and substance abuse disorder. (Id.) At the third
step, the ALJ found that Claimant did not have an impairment or combination of
impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (Id. at 25.) The ALJ
evaluated Claimant’s claims under listing 1.15 (disorders of the spine), 1.16 (lumbar
spinal stenosis), 12.04 (depressive disorders), 12.06 (anxiety disorders), 12.11
(neurodevelopmental disorders), and 12.15 (PTSD). (Id.) The ALJ also determined that
Claimant did not satisfy either the “paragraph B” or “paragraph C” criteria. (Id. at 2627.) At the fourth step, the ALJ determined that Claimant had the following RFC:
[C]laimant has the residual functional capacity to perform light work as
defined in 20 CFR [§] 404.1567(b) except he can lift 20 pounds occasionally
and 10 pounds frequently. He can sit six hours, stand six hours and can
walk six hours in an eight-hour workday. He can occasionally balance,

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stoop, kneel, crouch, crawl, and climb ramps or stairs, but can never climb
ropes, ladders, or scaffolds. Finally, he can perform work that does not
involve driving commercial vehicles. Mentally, he can understand, follow,
and complete simple repetitive routine tasks and instructions in low stress
jobs (defined as work having occasional changes in work setting and no
more than occasional decision making). He can also perform work
involving no more than occasional contact with the public.
(Id. at 27.) Also, at the fourth step, the ALJ determined that Claimant was unable to
perform his past relevant work. (Id. at 32.) At step five, the ALJ found that there were
jobs that existed in significant numbers in the national economy Claimant could perform,
including marker, routing clerk, and collator operator. (Id. at 33.) Thus, the ALJ
concluded that Claimant was not disabled. (Id. at 34.)
B.

The Substantial Evidence Standard
The ALJ’s decision must be affirmed “if it is supported by substantial evidence in

the record as a whole.” Grindley v. Kijakazi, 9 F.4th 622, 627 (8th Cir. 2021) (quoting
Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)). “The phrase ‘substantial evidence’
is a ‘term of art’ used throughout administrative law. . . . [T]he threshold for such
evidentiary sufficiency is not high. . . . It means—and means only—such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek
v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations and quotations omitted); see
also Kraus v. Saul, 988 F.3d 1019, 1024 (8th Cir. 2021) (“Substantial evidence is less
than a preponderance, but enough that a reasonable mind might accept it as adequate to
support a conclusion.”) (Quoting Phillips v. Astrue, 671 F.3d 699, 702 (8th Cir. 2012)).
Thus, a court cannot disturb an ALJ’s decision unless it falls outside this available “zone
of choice” within which the ALJ can decide the case. Hacker v. Barnhart, 459 F.3d
934, 936 (8th Cir. 2006) (citation omitted). “An ALJ’s decision is ‘not outside the zone
of choice’ simply because [the c]ourt ‘might have reached a different conclusion had [it]

6

been the initial finder of fact.’” Kraus, 988 F.3d at 1024 (quoting Bradley v. Astrue,
528 F.3d 1113, 1115 (8th Cir. 2008)).
In determining whether the Commissioner’s decision meets this standard, the court
considers all the evidence in the record, but does not reweigh the evidence. Vester
v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). A court considers “both evidence that
detracts from the Commissioner’s decision, as well as evidence that supports it.”
Fentress v. Berryhill, 854 F.3d 1016, 1020 (8th Cir. 2017). The court must “search the
record for evidence contradicting the [ALJ’s] decision and give that evidence appropriate
weight when determining whether the overall evidence in support is substantial.”
Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v. Sullivan, 939
F.2d 560, 564 (8th Cir. 1991)). However, “even if inconsistent conclusions may be
drawn from the evidence, the [Commissioner’s] decision will be upheld if it is supported
by substantial evidence on the record as a whole.” Guilliams v. Barnhart, 393 F.3d 798,
801 (8th Cir. 2005); see also Igo v. Colvin, 839 F.3d 724, 728 (8th Cir. 2016) (providing
that a court “may not reverse simply because [it] would have reached a different
conclusion than the [Commissioner] or because substantial evidence supports a contrary
conclusion”).
III.

DISCUSSION

Claimant alleges that the ALJ committed reversible error by (A) failing to properly
evaluate Claimant’s stress-related difficulties in relation to Claimant’s RFC assessment;
(B) failing to adequately evaluate the “Paragraph B” criteria in determining Claimant’s
medically determinable mental impairments; (C) failing to adequately evaluate Claimant’s
maximum exertional RFC; (D) relying on “conflicting testimony” from the VE; and (E)
failing to resolve conflicts between the VE’s testimony and the DOT. (Doc. 9-1.)

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A.

RFC – Stress Level
1.

Parties’ Arguments

Claimant argues that the ALJ erred by failing to define or evaluate “low stress”
jobs “on an individualized basis based on the specific symptoms and triggers of the
Claimant.” (Doc. 9-1 at 26.) Relying on Ruling 85-15, Claimant asserts that “the ALJ’s
RFC does not particularize ‘low stress’ or analyze which types of work tasks the Claimant
might find stressful or define the restrictions necessary to reduce Claimant’s stress.” (Id.
at 27.) Specifically, Claimant argues that the ALJ’s limitation of Claimant to “low stress”
jobs “does not articulate the Claimant’s maximum capacity to perform basic mental
activities because the decision’s definition of ‘low stress job’ is broadly described as any
job that has ‘occasional changes in work setting’ and requires ‘no more than occasional
decision making’ instead of an individualized explanation of what causes stress to the
claimant and what the resulting limitations are.” (Id. at 28.)
The Commissioner notes that the ALJ limited Claimant to low stress work,
defining “low stress” as “‘work having occasional changes in work setting and no more
than occasional decision making’” and that Claimant contends that “these restrictions fail
to consider [Claimant’s] ‘triggers, symptoms, and reactions to certain stimuli.’” (Doc.
14 at 8.) (Quoting AR at 27 and Doc. 9-1 at 25.) The Commissioner points out, however,
that Claimant, “who holds the burden of proving his limitations, does not elaborate on
what these triggers, symptoms, and reactions might be, nor does he suggest what
additional limitations were necessary to account for his stress.” (Doc. 14 at 8.) The
Commissioner concludes that “[a]s [Claimant] points to no evidence supporting a need
for additional stress related restrictions, the ALJ’s RFC finding should be upheld.” (Id.)
2.

Analysis

Claimant cites no authority to support his interpretation of Social Security Ruling
85-15, 1985 WL 56857 (1985) requiring an “individualized explanation of what causes

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stress to the claimant and what the resulting limitations are.”

(Doc. 9-1 at 28.)

Moreover, the ALJ’s definition of “low stress” as it relates to Claimant is individualized,
as it is based on the ALJ’s consideration of the record as a whole and limits Claimant to
“occasional changes in work setting and no more than occasional decision making.” (AR
at 27.) Such individualized definition is consistent with the findings of various judges
from sister districts in the Eighth Circuit. See Lowe v. Kijakazi, No. 4:22-cv-00653SEP, 2023 WL 6200759, at *2-*4 (E.D. Mo. Sept. 22, 2023) (J. Pitlyk) (affirming RFC
assessment including a limitation of low stress work, defining low stress as “only
occasional changes in work setting”); Martin v. Berryhill, No. 4:16-CV-00978-DGKSSA, 2017 WL 3704602, at *2 (W.D. Mo. Aug. 28, 2017) (J. Kays) (affirming RFC
assessment including a limitation of low stress work, defining low stress as “only
occasional decision-making and occasional changes in work setting”); Hanks v. Berryhill,
No. 4:16CV152 HEA, 2017 WL 1047377, at *6-*7 (E.D. Mo. Mar. 20, 2017) (J.
Autrey) (affirming RFC assessment including a limitation of low stress work, defining
low stress as “only occasional decision-making and occasional changes in work setting”);
Seitz v. Colvin, No. 5:15-cv-06151-NKL, 2016 WL 3920463, at *10-*11 (W.D. Mo.
July 18, 2016) (J. Laughrey) (finding “low stress” properly defined as “only occasional
decision-making and occasional changes in work setting”); Trucks v. Colvin, No.
4:15CV700PLC, 2016 WL 7405842, at *5-*8 (E.D. Mo. Dec. 22, 2016) (J. Cohen)
(affirming RFC assessment including a limitation of low stress work, defining low stress
as “only occasional decision-making and occasional changes in work setting”) Latragna
v. Colvin, No. 4:14 CV 496 JMB, 2015 WL 4771630, at *14 (E.D. Mo. Aug. 12, 2015)
(J. Bodenhausen) (affirming RFC assessment including a limitation of low stress work,
defining low stress as “only occasional decision-making and occasional changes in work
setting”).

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Accordingly, I find Claimant’s argument is without merit and I recommend that
District Court affirm this part of the ALJ’s decision.
B.

“Paragraph B” Criteria
1.

Parties’ Arguments

Claimant argues that the ALJ “failed to provide an adequate evaluation of the
“Paragraph B” criteria when determining the severity of [his] medically determinable
mental impairments.” (Doc. 9-1 at 28.) Claimant maintains that the ALJ “failed to
provide appropriate rationale when it did not incorporate several pertinent findings and
conclusions, as required by the special technique described in 20 C.F.R. [§]
404.1520a(C)[.]” (Id. at 31-32.) Claimant also argues that the ALJ “did not adequately
identify the specific functional limitations that were considered in reaching a conclusion
about the severity of the mental impairments.” (Id. at 32.)
The Commissioner argues that, in his decision, the ALJ properly evaluated the
“Paragraph B” criteria. (Doc. 14 at 8-13.) Specifically, the Commissioner argues that
the ALJ followed the regulations and considered Claimant’s “alleged functional
limitations in each functional area along with the examination findings and [Claimant’s]
reported abilities and determined that the weight of the evidence failed to show limitations
rising to the marked or extreme level.” (Id. at 12-13.) The Commissioner asserts that
Claimant “disagrees with the [ALJ’s] decision, but has failed to identify a single error by
the ALJ.” (Id. at 13.) The Commissioner concludes that substantial evidence supports
the ALJ’s “Paragraph B” findings. (Id.)
2.

Analysis

In his decision, the ALJ addressed the “Paragraph B” criteria as follows:
The severity of the claimant’s mental impairments, considered singly and
in combination, do not meet or medically equal the criteria of listings 12.04,
12.06, 12.11 and 12.15. In making this finding, I have considered whether
the “paragraph B” criteria are satisfied. To satisfy the “paragraph B”

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criteria, the mental impairments must result in one extreme limitation or
two marked limitations in a broad area of functioning. An extreme
limitation is the inability to function independently, appropriately, or
effectively, and on a sustained basis. A marked limitation is a seriously
limited ability to function independently, appropriately, or effectively, and
on a sustained basis.
In understanding, remembering, or applying information, the claimant has
moderate limitations. The claimant alleged that he has difficulty completing
tasks and taking medications without reminders. However, the claimant
also stated that he could perform simple maintenance, prepare meals, pay
bills, go to doctor’s appointments, and read. In addition, the record shows
that the claimant could provide cogent, detailed, organized and responsive
information about his health and could make his own healthcare related
decisions without his provider’s clinical concern for his cognition, attention
and concentration or memory function on exams during the period of review
(E.g., 15F; 16F/7, 9; 22F/12, 18, 23, 34, 38, 44, 67, 72, 77, 80, 92;
23F/4, 5, 6, 8 and 9).
In interacting with others, the claimant has moderate limitations. Here, the
claimant alleged that he has difficulty engaging in social activities and
spending time in crowds. However, according to his statements, he is able
to get along with others and spend time with friends and family. Finally,
the medical evidence shows that the claimant has good eye contact, normal
speech and thought patterns, normal motor activity, good judgment and that
he is polite, cooperative and without thoughts of self-harm or harm to others
during the period of review.
The claimant also has moderate limits in his ability to concentrate, persist,
or maintain pace. The claimant contended that he has limitations in
concentrating generally, focusing generally, following instructions,
completing tasks, and maintaining a regular work schedule. However, as
noted above, the claimant also stated that he could perform simple
maintenance, prepare meals, pay bills, go to doctor's appointments, and
read. Here too, he could provide cogent, detailed, organized and
responsive information about his health and could make his own healthcare
related decisions without his provider’s clinical concern for his cognition,
attention and concentration or memory function on exams during the period

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of review (E.g., 15F; 16F/7, 9; 22F/12, 18, 23, 34, 38, 44, 67, 72, 77,
80, 92; 23F/4, 5, 6, 8 and 9).
Finally, the claimant has moderate limitations in his ability to adapt or
manage himself. The claimant asserted that he has difficulties handling
change and managing his mood. That said, the claimant also stated that he
is able to handle self-care and personal hygiene, that he is independent in
his daily activities and decision making, and that he has improved and stable
moods with medication management. Again, the objective evidence in the
record also shows he has appropriate grooming and hygiene, no problem
getting along well with providers and staff, normal mood and affect, and
no problems with temper control when taking his medications as prescribed
(E.g., 16F/7, 9; 22F/12, 18, 23, 34, 38, 44, 67, 72, 77, 80, 92; 23F/4, 5,
6, 8 and 9).
Because the claimant’s mental impairments do not cause at least two
“marked” limitations or one “extreme” limitation, the “paragraph B”
criteria are not satisfied.
(AR at 26-27.)
Here, the ALJ complied with the regulations for evaluating the “Paragraph B”
criteria. See 20 C.F.R. § 404.1520a(b), (c), (e)(4). Furthermore, I have reviewed the
ALJ’s citations to the record and find that the medical evidence relied on by the ALJ
supports the ALJ’s findings. See AR at 2262, 2265-66, 3591, 3597, 3602, 3613, 361718, 3623-24, 3646, 3651, 3656, 3659, 3677-79, 3681-82. Other evidence in the record
also supports the ALJ’s findings. See id. at 2276, 2294, 3582, 3648, 3653-54, 3658,
3670. Moreover, while Claimant addresses the four “Paragraph B” areas of functioning,
see Doc. 9-1 at 29-32, Claimant generally states that he disagrees with the ALJ’s findings
and offers little to no support for his disagreements. Where Claimant does cite medical
evidence, it is to two pieces of evidence where a medical source noted poor memory and
noted impaired concentration. However, neither of these notations suggest let alone

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support a finding of a marked or extreme limitation in the area of concentration,
persistence, or pace. Significantly, Claimant cites no evidence to support such a finding.
Accordingly, I find that the ALJ properly considered and addressed the “Paragraph
B” criteria in his decision. Even if different conclusions could be drawn on this issue,
the conclusions of the ALJ should be upheld because they are supported by substantial
evidence on the record as a whole. See Guilliams, 393 F.3d at 801. It is not for this
Court to reweigh evidence. Therefore, I recommend that the District Court affirm this
part of the ALJ’s decision.
C.

Claimant’s RFC
1.

Parties’ Arguments

Claimant argues that the ALJ failed to “adequately evaluate the [his] maximum
exertional residual functional capacity” and the ALJ’s RFC assessment “is therefore
unsupported by substantial evidence.” (Doc. 9-1 at 32.) Claimant contends that “when
determining that the Claimant could perform ‘light work’ the ALJ’s remand decision
makes several misleading and/or inaccurate statements.” (Id. at 33.) Claimant points to
various statements which he made at the administrative hearings which he claims are
inconsistent with the ALJ’s findings. (Id. at 33-34.) Claimant concludes that the medical
evidence does not support the ALJ’s determination that he is capable of light work. (Id.
at 36.)
The Commissioner argues that the “physical RFC was supported by substantial
evidence” and the ALJ “properly found [Claimant] had the physical ability to perform
light work[.]” (Doc. 14 at 13-14.) The Commissioner asserts that Claimant does not
dispute the majority of the ALJ’s findings, but in arguing that the ALJ made misleading
and/or inaccurate statements, Claimant is “essentially nitpicking the ALJ’s well-reasoned
decision.” (Id. at 15.) The Commissioner contends that Claimant is simply “asking the
Court to see the record as he sees it.” (Id. at 16.) However, the Commissioner points

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out that “it is not the Court’s role to re-weigh the evidence, rather to determine if the
ALJ’s decision was supported by substantial evidence[.]” (Id.)
2.

Relevant Law

The ALJ is responsible for assessing a claimant’s RFC, and his or her assessment
must be based on all the relevant evidence. Guilliams, 393 F.3d at 803. Relevant
evidence for determining a claimant’s RFC includes “medical records, observations of
treating physicians and others, and an individual’s own description of his [or her]
limitations.” Lacroix v. Barnhart, 465 F.3d 881, 887 (8th Cir. 2006) (quoting Strongson
v. Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004)). While an ALJ must consider all the
relevant evidence when determining a claimant’s RFC, “the RFC is ultimately a medical
question that must find at least some support in the medical evidence of record.” Casey
v. Astrue, 503 F.3d 687, 697 (8th Cir. 2007).
The ALJ also has a duty to develop the record fully and fairly. Cox v. Astrue,
495 F.3d 614, 618 (8th Cir. 2007). “There is no bright line rule indicating when the
[ALJ] has or has not adequately developed the record; rather, such an assessment is made
on a case-by-case basis.” Mouser v. Astrue, 545 F.3d 634, 639 (8th Cir. 2008).
3.

Analysis

In making his RFC determination for Claimant, the ALJ supported his
determination as it pertains to Claimant’s physical limitations as follows:
The claimant previously testified at his December 2021 hearing that he is
disabled since his May 2020 motor vehicle accident, with the suggestion
that his physical therapy after his lumbar fusion ended prematurely
secondary to insurance barriers rather than his medical improvement by
April 2021.
He also testified at his December 2021 hearing he has significant pain relief
with medication management, that he can lift 25 pounds without difficulty,
and that he can walk a mile, but needs to change positions from seated to
standing every 20 minutes. However, he reported some balance deficits in

14

standing too long on one foot. Otherwise, he testified he has significant
anxiety, is easily irritated and impatient, especially if in pain, and that he
was no longer using methamphetamines at that time.
More recently, the claimant testified at his July 2023 hearing that he had
had essentially no medical treatment since his prior hearing decision, but
for tele-health visits when renewing his pain medications. Additionally, the
claimant testified he had had no medication changes since his prior hearing,
that he does not drive because he does not have a car and that he typically
walks to where he needs to go during the day.
The claimant testified he last participated in physical therapy in April 2021
because he stopped improving and had poor stamina, noting he never
regained the ability to run. However, at his July 2023 hearing the claimant
testified he could walk two miles before needing to rest, that he can stand
45 minutes, and could only lift and carry a case of water. Finally, he
testified he is sober from methamphetamines for one year and that he has
difficulty tolerating loud noise, is irritable and withdrawn when under
stress, and that he is forgetful.
After careful consideration of the evidence, I find that the claimant’s
medically determinable impairments could reasonably be expected to cause
some of the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence, and limiting effects of these symptoms
are not entirely consistent with the medical evidence and other evidence in
the record for the reasons explained in this decision. . . .
[B]y April 2021 and by his own account, he was thereafter without pain,
without difficulty performing daily activities, and no longer using a cane
(E.g., 22F and 23F).
Consequently, the claimant’s statements about the intensity, persistence,
and limiting effects of his back pain symptoms, to the extent he suggests
they persist and preclude his return to less demanding work than welding,
are inconsistent because the medical record indicates he had a very good
response to surgical fusion and has managed his symptoms with
conservative care ever since, as evident in the claimant’s self-reports that
he has no ongoing back pain when compliant in care and if not jogging
around town (E.g., 7F/748).

15

Additionally, his statements suggesting he has ongoing severe back pain are
inconsistent with clinical observations in his physical therapy and routine
care treatment record showing he has a normal gait on even and on uneven
terrain, is able to jog, does modified burpees, can quick step on floor
ladders and laterally speed skate when discharged from physical therapy,
suggesting he has no ongoing physical therapy since April 2021 because he
has no ongoing medical need for therapy, rather than being prematurely
discharged from care secondary to insurance limits as he suggested at the
time of his hearing (E.g., 13F and 20F/3).
In fact, even after reporting a fall on stairs in July 2020, the claimant has
no complaints or clinical concerns on updated imaging warranting changes
in care and continues to report he has no activity limitations when
prescribed Gabapentin and narcotic pain medications since that time (E.g.,
19F; 22F/34 and 44).
He has reported increased pain at times when his pain management is
suspended secondary to illicit drug use after drug screens showed positive
methamphetamine but negative opiates causing his provider’s concern
(19F/143, emphasis added). Similarly, the claimant reported some pain
after he self-suspended his use of Gabapentin in May 2021, but since
restarting has no ongoing complaints or concerns in this regard (22F/5 and
6).
In this context, the claimant reports no significant pain even when
demonstrating an ability to jump, an ability to quickly skate laterally side
to side, an ability to take quick ladder steps on the floor and tolerates light
“running” activities within months of his recuperation from surgery, again
suggesting his physical therapy ended because he had achieved his treatment
goals, (19F/112 and 114).
However, after “jogging” to his physical therapy appointments the claimant
has reported heightened symptoms at times, but has no such symptoms
persisting when participating in activities that do not exceed the functional
limitations established for him in this decision (20F/572 and 863).
For example, in March 2021, when not running to his appointment the
claimant reported he was in no pain, had no side effects, that he was doing

16

well, and reported he is sober when compliant in his use of ADHD
medications without clinical concern for his motor function, mental function
or cognition less than one year after his alleged onset date (19F/2).
He also stated in physical therapy that his back was “ok” and he is able to
perform modified “burpees” about the time his participation in physical
therapy came to an end, despite moderate cervical disc disease shown on
imaging at that time (20F/863, 930 and 951). In April 2021 the updated
imaging of his thoracic and lumbar spine showed no significant disc disease
and no significant spinal canal stenosis (20F/1043 and 1044).
Thereafter, the claimant has pain management by Dr. Wolff and
consistently demonstrates normal cognition, consistently reports his pain is
well managed without side-effects and that he is sleeping and doing well
with no pain (E.g., 22F/1, 5, 10, 15, 20, 33, 38, 44, 49, 54, 60, 64, 69,
74, 79, 84, 89 and 23F/5-7).
Moreover, he reports his improved mood stability since sober and
compliant in care and has no contemporaneous complaints or clinical
concerns warranting updated imaging, specialized care, changes in
medication management, unscheduled or emergent care or Dr. Wolff’s
recommended limitations for him at work during the relevant period (E.g.,
22F/1, 5, 10, 15, 20, 33, 38, 44, 49, 54, 60, 64, 69, 74, 79, 80, 84, 89,
92 and 23F/5-7).
Finally, his daily activities include long walks, bicycling, cleaning, and
driving up to an hour at a time within one year of his alleged onset date.
To this end, the claimant reported he has no ongoing primary care since
December 2020 “because he has not needed” primary care since that time,
when returning to care only after receiving his December 2021 hearing
decision denial (22F/38).
To summarize, the claimant improved from his significant traumatic back
injury and has good motor function, and well managed pain symptoms
without side effects or impaired cognition within 12 months of his onset
date. Since April 2021, he has no complaints warranting changes in care,
updated imaging, emergent care, medication changes or his prescription use
of a cane.

17

Although the record supports a finding he is unable to return to work as a
welder, the claimant provided no evidence or well supported opinion
suggesting he has an inability to perform less demanding work during the
period of review. By limiting the claimant to light work involving no
climbing ladders, ropes or scaffolds, no driving commercial vehicles and
involving no more than occasional postural activities, I have adequately
accounted for the claimant’s severe traumatic back injury and T11-L3
fusion.
I did not account for the claimant’s statements suggesting he must often
alternate positions, is unable to stand more than 45 minutes, needs to walk
with a cane at times and has cognitive deficits, in part from use of pain
medications, because his statements are not consistent with his
contemporaneous reports, unremarkable clinical physical and mental
examinations, his ability to manage his symptoms with conservative care
since April 2021, and his self-reported daily activities during the relevant
period.
(AR at 28-30.)
It is clear from the ALJ’s decision that he thoroughly reviewed and considered
Claimant’s medical history, particularly as it related to pain and Claimant’s functional
abilities. See id. Claimant’s argument that the ALJ’s decision is not supported by
substantial evidence comes down to a few minor points that either he interprets differently
from the ALJ or where he fails to consider all the evidence that the ALJ considered. For
example, at the December 2021 administrative hearing, when asked how medication helps
his pain, Claimant stated “it helps my pain a lot. I feel somewhat normal.” (Id. at 67.)
Claimant also stated that he does not push his limits and without medication “I can’t do
anything at all.” (Id.) I find no issue with the ALJ’s finding that Claimant testified to
pain relief with medication. As is clear from the ALJ’s decision, the ALJ’s finding is
supported by substantial evidence on the record as a whole regardless of Claimant’s
differing interpretation. See Guilliams, 393 F.3d at 801 (providing that even if different
conclusions could be drawn on an issue, the ALJ’s conclusions should be upheld when

18

they are supported by substantial evidence on the record as a whole). Similarly, Claimant
also stated “[m]y lifting is pretty much still stuck at the 25 limit. I don’t typically want
to carry anything more than that because I don’t want to risk anything.” (AR at 59.)
Claimant complains that the ALJ stated he could lift 25 pounds “without difficulty.” (Id.
at 28.) I am unpersuaded by Claimant’s complaint. Claimant never said either way that
he could or could not lift 25 without difficulty. He stated that his lifting limit was 25
pounds. He also stated that could carry 25 pounds a medium distance (from his car to
the kitchen) once or twice before needing to take a break and that he had never tried
carrying 25 pounds such a distance twice. (Id. at 59.) Based on the foregoing testimony,
I find no issue with the ALJ’s finding. See Guilliams, 393 F.3d at 801. Claimant also
complains that the ALJ’s statement that Claimant “reported some balance deficits” failed
to also discuss an incident where Claimant fell down stairs at his parents’ house. (AR at
28, 62-63.) Additionally, Claimant points out that he testified that he cannot stand on
one foot for long periods of time, cannot take steps two at a time, and has difficulty
stepping over things. (Id. at 64.) Having reviewed the testimony, I find that the ALJ’s
finding that Claimant has “some balance deficits in standing too long on one foot” is
consistent with Claimant’s testimony. (Id. at 28, 62-64.) To that end, Claimant also
fails to explain or point to evidence that would contrary to the ALJ’s RFC finding that
Claimant can “occasionally balance.” (Id. at 27.) Next, at the July 2023 administrative
hearing, Claimant testified that “[a]s far as walking goes recently I’ve made it about two
miles but I limit as far as walking before I need to, I need to rest.” (Id. at 91.) Claimant
also stated that walking two miles is hard on his feet and after walking that distance he
needs to rest in a recliner. (Id.) Claimant further testified that “like two miles is about
the most I’ve ever been able to walk and standing the same thing, about like 45 minutes
is the longest I’ve been able to stand” before needing a break due to pain in his feet. (Id.
at 91-92.) In his decision, the ALJ stated that “claimant testified he could walk two miles

19

before needing to rest” and that “he can stand 45 minutes.” (Id. at 28.) I find no issue
with the ALJ’s decision on Claimant’s statements regarding walking two miles and
standing for 45 minutes, as the ALJ’s finding is consistent with Claimant’s testimony.
Finally, Claimant correctly points out that the ALJ’s citation to “7F/748” does not exist.
However, this minor error does not undermine the ALJ’s thorough findings or the
multitude of correct citations to the record which supports his findings. See id. at 28-30.
Overall, I find Claimant’s argument to be without merit and the ALJ’s findings to be
supported by substantial evidence on the record as a whole. See Chismarich v. Berryhill,
888 F.3d 978, 980 (8th Cir. 2018) (“In conducting our limited and deferential review of
the final agency determination under the substantial-evidence standard, we must view the
record in the light most favorable to that determination. . . . In the face of such
determinations, we must strive to harmonize statements where possible; we may neither
pick nits nor accept an appellant’s invitation to rely upon perceived inconsistencies.”).
Moreover, in determining Claimant’s RFC, the ALJ thoroughly addressed and
considered Claimant’s medical history and treatment for his complaints. (AR at 27-32.)
The ALJ also properly considered and discussed Claimant’s subjective allegations of
disability in making his overall disability determination, including determining
Claimant’s RFC, finding that “claimant’s statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely consistent with the medical
evidence and other evidence in the record[.]” (Id. at 28-31.)
Therefore, having reviewed the entire record, I find that the ALJ properly
considered Claimant’s medical records, observations of treating physicians, and
Claimant’s own description of his limitations in making the ALJ’s RFC assessment for
Claimant. See Lacroix, 465 F.3d at 887. Further, I find that the ALJ’s decision is based
on a fully and fairly developed record. See Cox, 495 F.3d at 618. Because the ALJ
considered the medical evidence as a whole, I conclude that the ALJ made a proper RFC

20

determination based on a fully and fairly developed record. See Guilliams, 393 F.3d at
803. Even if different conclusions could be drawn on this issue, the conclusions of the
ALJ should be upheld because they are supported by substantial evidence on the record
as a whole. See id. at 801. It is not for this Court to reweigh evidence. Accordingly, I
recommend that the District Court affirm this part of the ALJ’s decision.
D.

VE Testimony
Claimant argues that his “due process rights were violated when the vocational

expert gave apparently conflicting testimony which the ALJ relied on unquestioningly.”
(Doc. 9-1 at 36.) Claimant contends that the VE “gave misleading, incomplete, and
contradictory testimony.” (Id. at 37.) Specifically, Claimant argues that:
First, [the VE] testified that the job of marker is still performed the way it
was at the time the DOT was last updated. . . . She then admitted that there
was a possibility that there is technology used now, that was not used
then. . . . Without explaining what technology may be used, or how long
it would take to learn the technology, she added “it’s—they’re simple
tasks. . . .” She then back pedaled and said that a marker would not need
to learn any technology.
(Id. at 37-38.) Claimant complains that the ALJ “asked no follow-up questions about
these contradictions” and argues that the ALJ’s “claim that the vocational expert’s
testimony is consistent with the DOT is false, and the ALJ did not elicit a reasonable
explanation for the inconsistency, which is reversible error.” (Id. at 38.)
At the hearing, Claimant’s attorney and the VE had the following exchange:
Q:
A:
Q:

And then specifically with the job of marker, have there been
changes to that job description since the DOT last updated it?
You know what, I think the job tasks are still performed the same
way at least. Let me look real quick. Yes. I believe that’s still
performed in a pretty similar fashion.
Okay. Are the current updated tasks of a marker, is that no discussed
in like a conversation with employers and marks, and like current
markers?

21

A:
Q:

A:
Q:

A:
Q:
A:
Q:

A:
Q:
A:

I’m not sure what you’re—
I guess you were talking about your experience with markers and
those who employ markers in order to come up with the percent of
jobs that would allow for more sitting. And so, I was trying to
understand if those conversations or sources that you are speaking of
if that does not include the current tasks and way of performing that
position?
Yes, it would be.
Okay. I’m looking at the date last update [19]77 and I’m just picking
that, some of that may have probably become computerized since
then, would I be off based with that? There’s probably more
technology involved with tagging and marking what they would have
done in [19]77?
That’s certainly possible but basically it’s—they’re pretty—they’re
simple tasks. It’s marking, putting stickers, putting price tags, that’s
basically it. Not a lot of that has—
Okay. So, they’re—
--changed. Not a lot of things to change.
Okay. So, you—so in your professional experience there wouldn’t
be any need to like learn or understand how to use a specific piece
of technology that would fix them changing prices or tagging items
with prices?
No.
You don’t have to learn any technology?
No. I think it’s—if that was involved that might be a different job
classification.

(AR at 112-113.)
I see no conflicting, misleading, incomplete, or contradictory testimony. Thus,
Claimant’s argument is without merit. Accordingly, I recommend that the District Court
affirm on this issue.
E.

VE Testimony and DOT Conflict
1.

Parties’ Arguments

Claimant argues that the “ALJ erred in determining [he] was [not] disabled at step
five of the sequential evaluation process because [the ALJ] improperly relied on the

22

Vocational Expert’s testimony when there was an apparent conflict between the VE’s
testimony and the Dictionary of Occupational titles that the VE did not resolve, therefore
the decision was not supported by substantial evidence.”

(Doc. 9-1 at 38-39.)

Specifically, Claimant argues that his RFC limited him to understanding, following, and
completing simple, repetitive routine tasks and instructions and such limitations are
inconsistent with reasoning level 2 jobs, like the jobs the VE testified Claimant could
perform. (Id. at 39.) Claimant maintains that “the VE testified that the hypothetical
individual could perform a job that the DOT classifies as requiring a reasoning ability
than the limitations in his RFC, which is an ‘apparent conflict’ between the VE’s
testimony and DOT’s job description that the VE did not resolve.” (Id. at 40.)
The Commissioner asserts that Claimant’s argument is “without merit.” (Doc. 14
at 17.)

Relying on Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010), the

Commissioner argues that the Eighth Circuit “found no direct conflict between a
hypothetical question including ‘carrying out simple job instructions’ for ‘simple, routine
and repetitive work activity,’ and the vocational expert’s identification of jobs with
instructions that, while potentially detailed, were not complicated or intricate.” (Id. at
19.) The Commissioner maintains that the “factual similarities between [Claimant’s] case
and Moore require dismissal of [Claimant’s] point of error.” (Id.) (citing Galloway v.
Kijakazi, No. 20-CV-00059-CJW, 2021 WL 5278545, at *29 (N.D. Iowa Sept. 2, 2021),
report and recommendation adopted, No. 20-CV-59-CJW-MAR, 2021 WL 4399719
(N.D. Iowa Sept. 27, 2021), aff’d, 46 F.4th 686 (8th Cir. 2022); Gilbert v. Saul, No.
C18-2045-LTS, 2019 WL 4751552, at *5, *19 (N.D. Iowa Sept. 30, 2019)).
2.

Relevant Law

At “step five of the sequential evaluation process the burden shifts to the
Commissioner to show that the claimant can perform other types of work and that the
particular type of work is available in the national economy.” Crawford v. Colvin, 809

23

F.3d 404, 409 (8th Cir. 2015). An ALJ “‘may rely on a vocational expert’s response to
a properly formulated hypothetical question to meet her burden of showing that jobs exist
in significant numbers which a person with the claimant's residual functional capacity
can perform.’” Gann v. Berryhill, 864 F.3d 947, 952 (8th Cir. 2017) (quoting Sultan v.
Barnhart, 368 F.3d 857, 864 (8th Cir. 2004)). However, “an ALJ may not rely on a
vocational expert’s testimony about the requirements of a job if an ‘apparent unresolved
conflict’ exists between that testimony and the job’s description in the [DOT].” Thomas
v. Berryhill, 881 F.3d 672, 677 (8th Cir. 2018). “If there is an ‘apparent unresolved
conflict’ between [vocational expert] testimony and the DOT, the ALJ must ‘elicit a
reasonable explanation for the conflict’ and ‘resolve the conflict by determining if the
explanation given [by the vocational expert] provides a basis for relying on the [vocational
expert] testimony rather than on the DOT information.’” Moore v. Colvin, 769 F.3d
987, 989-90 (8th Cir. 2014) (quoting SSR 00-4p, 2000 WL 1898704, at *2-4 (Dec. 4,
2000)); see also Courtney v. Comm'r, Soc. Sec. Admin., 894 F.3d 1000, 1003 (8th Cir.
2018) (“SSR 00-4p places an affirmative responsibility on the ALJ ‘to ask about “any
possible conflict” between [vocational expert] evidence and the DOT, and to obtain
explanation for any such conflict, before relying on [vocational expert] evidence to
support a determination the claimant is not disabled.’”) (quoting Welsh v. Colvin, 765
F.3d 926, 929 (8th Cir. 2014)).
3.

Analysis

In his decision, the ALJ determined Claimant’s RFC as follows:
[C]laimant has the residual functional capacity to perform light work as
defined in 20 CFR [§] 404.1567(b) except he can lift 20 pounds occasionally
and 10 pounds frequently. He can sit six hours, stand six hours and can
walk six hours in an eight-hour workday. He can occasionally balance,
stoop, kneel, crouch, crawl, and climb ramps or stairs, but can never climb
ropes, ladders, or scaffolds. Finally, he can perform work that does not
involve driving commercial vehicles. Mentally, he can understand, follow,

24

and complete simple repetitive routine tasks and instructions in low stress
jobs (defined as work having occasional changes in work setting and no
more than occasional decision making). He can also perform work
involving no more than occasional contact with the public.
(AR at 27.) Further, in his decision, at step five, the ALJ explained that he:
asked the vocational expert whether jobs exist in the national economy for
an individual with claimant’s age, education, work experience, and residual
functional capacity. The vocational expert testified that given all of these
factors the individual would be able to perform the requirements of
representative occupations such as: Marker . . .; Routing clerk . . .; [and]
Collator operator.
(Id. at 33.) The ALJ determined that the “vocational expert’s testimony is consistent
with the information contained in the Dictionary of Occupational Titles. Any conflicts
with regard to postural or environmental limitations have no significant impact on the
relevant job base. (See SSRs 83-14, 85-15 & 96-9p).” (Id. at 33-34.) The ALJ also
determined that “[b]ased on the testimony of the vocational expert, [the undersigned]
conclude[s] that, considering the claimant’s age, education, work experience, and
residual functional capacity, the claimant is capable of making a successful adjustment to
other work that exists in significant numbers in the national economy.” (Id. at 34.)
Here, the ALJ's RFC assessment limited Claimant to “understand[ing],
follow[ing], and complet[ing] simple repetitive routine tasks and instructions in low stress
jobs.” (Id. at 27). Such limitations are consistent with jobs requiring level 2 reasoning.
See Moore, 623 F.3d at 604 (finding no direct conflict between a limitation of “simple,
routine and repetitive work activity” and jobs requiring level 2 reasoning); Renfrow v.
Astrue, 496 F.3d 918, 921 (8th Cir. 2007) (finding no conflict between a limitation to
unskilled work with the ability to follow “simple, concrete instructions” and jobs
requiring level 3 reasoning); Hillier v. Soc. Sec. Admin., 486 F.3d 359, 367 (8th Cir.
2007) (same). Additionally, Claimant’s reliance on Lucy v. Chater, 113 F.3d 905 (8th

25

Cir. 1997) is misplaced, as Lucy did not even involve a vocational expert’s testimony
because the ALJ applied the Medical-Vocational Guidelines. Id. at 909. Indeed, the
Eighth Circuit reversed because the ALJ determined “Lucy was not disabled without
consulting a vocational expert to assess Lucy’s residual functional capacity in light of his
significant nonexertional impairments.” Id. Based on the foregoing, I find no “apparent
unresolved conflict” between the vocational expert's testimony and the DOT and no error
in the ALJ’s step-five determination. Accordingly, I recommend that the District Court
affirm this part of the ALJ’s decision.
IV.

CONCLUSION

For the foregoing reasons, I respectfully recommend that the District Court
AFFIRM the decision of the ALJ.
The parties must file objections to this Report and Recommendation within
fourteen (14) days of the service of a copy of this Report and Recommendation, in
accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). Objections must
specify the parts of the Report and Recommendation to which objections are made, as
well as the parts of the record forming the basis for the objections. See Fed. R. Civ. P.
72. Failure to object to the Report and Recommendation waives the right to de novo
review by the District Court of any portion of the Report and Recommendation as well
as the right to appeal from the findings of fact contained therein. United States v. Wise,
588 F.3d 531, 537 n.5 (8th Cir. 2009).
DONE AND ENTERED this 11th day of March, 2025.

26