Hewitt v. Berryhill
Filing
18
ORDER denying 13 Motion for Summary Judgment; granting 16 Motion for Summary Judgment. (Written Opinion) Signed by Magistrate Judge Becky R. Thorson on 1/25/2019. (MSK)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Karen S. H.,
Civ. No. 17-5143 (BRT)
Plaintiff,
v.
MEMORANDUM
OPINION AND ORDER
Nancy A. Berryhill,
Acting Commissioner of
Social Security,
Defendant.
David L. Christianson, Esq., Thomas A. Krause, counsel for Plaintiff.
Bahram Samie, Esq., United States Attorney’s Office, counsel for Defendant.
BECKY R. THORSON, United States Magistrate Judge.
Pursuant to 42 U.S.C. § 405(g), Plaintiff Karen S. H. seeks judicial review of the
final decision of the Commissioner of Social Security (“the Commissioner”) denying her
application for disability insurance benefits. This matter is before the Court on the
parties’ cross–motions for summary judgment, in accordance with D. Minn. LR 7.2(c)(1).
(Doc. Nos. 13, 16.) For the reasons stated below, the Court concludes that the
Administrative Law Judge’s (“ALJ”) decision is supported by substantial evidence in the
record. Therefore, Plaintiff’s motion is denied and Defendant’s motion is granted.
1
BACKGROUND
I.
Procedural History
Plaintiff filed an application for disability insurance benefits (“DIB”) on July 17,
2014, alleging a disability onset date of July 1, 2011. (Tr. 18, 258.) 1 The Social Security
Administration (“SSA”) denied her claim initially on December 17, 2014, and on
reconsideration on April 23, 2015. (Tr. 18, 180–84, 192–94.) A hearing was then held by
the ALJ on October 20, 2016. (Tr. 18, 136–47.) After the hearing, Plaintiff submitted
additional medical evidence, which was reviewed and added to the record. (Tr. 11–110.)
The ALJ issued a decision denying benefits on November 9, 2016 (Tr. 18, 111), and
Plaintiff sought review. The SSA Appeals Council denied Plaintiff’s request for review
on October 3, 2017, making the ALJ’s decision the final decision of the Commissioner.
(Tr. 1–6); 20 C.F.R. § 404.981.
On April 11, 2018, Plaintiff filed this action seeking judicial review pursuant to
42 U.S.C. § 405(g). (Doc. No. 1, Compl.) The parties then filed cross–motions for
summary judgment, pursuant to the Local Rules. (Doc. Nos. 13, 16.) In Plaintiff’s
motion, she argues that the ALJ erred at step four of the disability evaluation analysis in
determining Plaintiff’s residual functional capacity (“RFC”). Plaintiff asserts that the ALJ
failed to evaluate properly the work-related limitations as described by the examining
psychologist, Dr. June Meyerhoff. (Doc. No. 14, Pl.’s Mem. Supp. Mot. Summ. J. (“Pl.’s
Mem.”) 15–26.) Plaintiff also argues that the ALJ erred at step five of the analysis in that
1
Throughout this Opinion and Order, the abbreviation “Tr.” is used to reference the
Administrative Record. (Doc. No. 12.)
2
the ALJ’s RFC hypothetical question to the vocational expert did not precisely set forth
Plaintiff’s credible limitations. (Pl.’s Mem. 26–28.) Defendant argues that the ALJ
properly assigned little weight to the opinion of the consultative examiner, because
Dr. Meyerhoff was unable to review the most recent medical evidence and the opinion
did not address all of Plaintiff’s functional limitations. (Doc. No. 17, Def.’s Mem. Supp.
Mot. Summ. J (“Def.’s Mem.”) 13–31.)
II.
Relevant Factual Background
Plaintiff protectively filed an application for DIB on July 14, 2014, alleging an
onset date of July 1, 2011. (Tr. 114, 258.) From her date of alleged onset through 2014,
Plaintiff sought and received medical treatment to address various physical complaints.
Plaintiff’s appeal relates to her mental impairments. Accordingly, the summary of facts
focuses on Plaintiff’s history of anxiety and depression.
Dr. Anderson:
On April 25, 2014, Plaintiff saw her primary care physician, Christina E.
Anderson, M.D., for a routine physical examination. (Tr. 650, 655.) During the
examination, Dr. Anderson administered the Patient Health Questionnaire (PHQ-9)
depression screening and the Generalized Anxiety Disorder-7 (GAD-7) screening.
(Tr. 652–53.) Her scores indicated mild depression and minimal anxiety. (Tr. 652–53.)
Plaintiff saw Dr. Anderson again on November 24, 2014, stating that she
continued to feel somewhat down. (Tr. 688, 691.) Plaintiff told Dr. Anderson that she felt
crabby and irritated and wanted to try seeing a psychologist. (Tr. 691.) On the PHQ-9 and
GAD-7, her overall scores indicated severe depression and anxiety. (Tr. 690.)
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Dr. Anderson increased Plaintiff’s Lyrica dose, prescribed Cymbalta, and advised
Plaintiff to start taking vitamin D daily. (Tr. 692.) Dr. Anderson also referred Plaintiff to
psychologist, June Meyerhoff, Psy.D. (Tr. 692.)
Dr. Meyerhoff:
On December 6, 2014, Plaintiff presented for a consultative examination with
Dr. Meyerhoff. (Tr. 565–71.) Plaintiff reported anxiety with panic attacks, not liking to
be around other people, feeling irritable and lashing out, and endorsed episodic
depression. (Tr. 565, 567.) Plaintiff described a history of intermittent treatment and said
her primary care physician had most recently prescribed Cymbalta a week prior, but she
had stopped taking it due to a feared medication interaction with over-the-counter cold
medicine. (Tr. 566.)
Plaintiff reported that she lived with her husband, two children, and two dogs.
(Tr. 568.) She said she liked to watch movies, read, clean the house, and play computer
games. (Tr. 566.) She said she would become easily distracted when working on tasks
and had to take breaks. (Tr. 567.) On a typical day, she would get up with her children
around 6 a.m., let the dogs out, eat, take her medication, shower, and dress. (Tr. 567.) She
said she woke her husband up around 9:30 a.m. and would watch television, play games,
pay bills, sometimes go to appointments, prepare dinner, and make sure her children did
their homework. (Tr. 567.) She said she would also go shopping, attempt to do yard
work, and occasionally go to the museum. (Tr. 567.)
During her mental status examination, Plaintiff was at ease, and provided logical
and direct responses to questions presented to her. (Tr. 568.) She displayed increased
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anxiety when discussing certain subjects but was able to repeat four digits forward and
three in reverse. (Tr. 568.) Her delayed memory for three objects was accurate after both
a five-minute and a 30-minute delay. (Tr. 568.) She stated her children’s birthdays,
related a memory from childhood, and named the last four presidents. (Tr. 568.)
Dr. Meyerhoff diagnosed Plaintiff with generalized anxiety disorder, major
depressive disorder, and obsessive-compulsive disorder based on Plaintiff’s reported
symptoms. (Tr. 569.) At the conclusion of the examination, Dr. Meyerhoff provided a
medical source statement. (Tr. 569.) In that statement, she indicated Plaintiff had said she
could follow directions adequately, but said she often had to reread instructions because
of poor concentration and to verify her understanding was correct. (Tr. 569.) She also
noted Plaintiff reported being easily distracted and said she procrastinated and worked at
a slow pace. (Tr. 569.) Dr. Meyerhoff noted Plaintiff would not respond appropriately to
others in the workplace, based on Plaintiff’s statements that she did not want to be close
to anyone and preferred to be alone, though she could be pleasant. (Tr. 559.)
Dr. Meyerhoff noted that Plaintiff said that when she was around the public, she felt
overwhelmed and would become crabby and nervous. (Tr. 569–70.) Dr. Meyerhoff also
noted Plaintiff’s statements regarding lashing out at others and difficulty tolerating workbased stress. (Tr. 568, 570.)
Plaintiff saw Dr. Meyerhoff again on March 10, 2015, and Dr. Meyerhoff
indicated that Plaintiff mainly used the session time to complain, which Plaintiff felt was
beneficial because she had no one else to talk to. (Tr. 712.)
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By her March 31, 2015 visit, Plaintiff had started journaling, which she felt was
helpful. (Tr. 716.) Plaintiff demonstrated adequate response to treatment, her appearance
was within normal limits, and during a mental status examination, she demonstrated
cooperative behavior, remained alert, and had dysthymic, anxious, and irritable mood.
(Tr. 716.) Plaintiff was relatively the same over her next few visits (Tr. 718–21), but
indicated increased stress because her daughter’s family, including her daughter, her
daughter’s boyfriend, and two young children, had moved in with her. (Tr. 722.)
At her May 13, 2015 appointment with Dr. Anderson, Plaintiff said there were
eight people living in her home and she was under increased stress, which prompted her
to want to throw the rock that Dr. Meyerhoff had given her to use as a focal point at
someone, as opposed to using it for the intended purpose. (Tr. 797.) Her PHQ-9 and
GAD-7 scores had increased. (Tr. 797.) Dr. Anderson prescribed Clonazepam to replace
Lorazepam. (Tr. 797, 802.) On May 19, 2015, Plaintiff discussed ongoing stressors and
was cooperative with normal speech and cognition but demonstrated dysthymic and
irritable mood. (Tr. 724.)
On June 5, 2015, Plaintiff was evaluated at Western Mental Health Center on
referral from Dr. Anderson regarding medication management. (Tr. 728.) Plaintiff was
taking the Wellbutrin Dr. Anderson had prescribed on a regular basis, but had not started
another medication, Lorazepam, as advised. (Tr. 728.) She reported anxiety, irritability,
and mood swings. (Tr. 728.) Her mental status examination was notable for overly
dramatic behavior, normal speech, intact immediate, recent, and remote memory, normal
fund of knowledge, logical and goal directed thoughts, and no hallucinations or
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delusions, with good insight and judgment. (Tr. 734.) Plaintiff was talkative, anxious,
intermittently tearful, and had impaired concentration. (Tr. 734.) She was diagnosed with
posttraumatic stress disorder and depression, among other things, as well as assessed with
a global assessment of functioning (GAF) score of 47. (Tr. 735.) Her WHODAS selfassessment score was 52. (Tr. 733.) She was advised to continue taking Wellbutrin.
(Tr. 736.)
At visits on June 30, 2015, and July 14, 2015, Dr. Meyerhoff emphasized reducing
her irritability, as Plaintiff mainly indicated conflict with others in her home because of
difficulties with roles, responsibilities, boundaries, her expectations, and her attempts to
control. (Tr. 881–83.) Dr. Meyerhoff encouraged Plaintiff to reconsider her living
situation and urged her to consider non-medication treatment options. (Tr. 885.)
III.
The ALJ’s Findings and Decision
In his decision dated November 15, 2016, the ALJ denied Plaintiff’s application
for DIB, finding that Plaintiff was not disabled as defined by the Social Security Act.
(Tr. 111–35.) The ALJ proceeded through the five-step evaluation process provided in
the social security regulations. See 20 C.F.R. § 404.1520(a)(4). These steps are as
follows: (1) whether the claimant is presently engaged in “substantial gainful activity”;
(2) whether the claimant is severely impaired; (3) whether the impairment meets or
equals a presumptively disabling impairment listed in the regulations; (4) whether the
claimant can perform past relevant work; and, if not, (5) whether the claimant can
perform other jobs available in sufficient numbers in the national economy. 20 C.F.R.
§ 404.1520(a)(4)(i)–(v).
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At step one, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since her alleged onset date of July 1, 2011, through her date last insured on
March 31, 2016. (Tr. 116.) At step two, the ALJ found that Plaintiff’s severe impairments
were major depressive disorder, generalized anxiety disorder, obsessive compulsive
disorder, fibromyalgia, obesity, osteoarthritis, vertigo, and low back pain. (Id.) The ALJ
found that all other impairments, alleged and found in the record, are either non–severe or
not medically determinable. (Tr. 117–20.) Since the ALJ determined that Plaintiff had
severe impairments, he continued to step three of the analysis, where a claimant must
show that her impairment or combination of impairments meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
See 20 C.F.R. § 404.1520(a)(iii). In examining Plaintiff’s impairments, the ALJ reviewed
the Listing of Impairments, specifically Sections 1.02 (major dysfunction of a joint);
Section 1.04 (disorders of the spine); Section 14.06 (undifferentiated and mixed
connective tissue disease); Section 1.00Q (obesity); Section 2.07 (disturbance of
labyrinthine-vestibular function); and Sections 12.04 and 12.06 (mental disorders).
(Tr. 117–20.) The ALJ found that the evidence did not meet the criteria for these Listings.
(Id.)
Before considering step four, the ALJ found that Plaintiff had the RFC to perform
light work as defined in 20 C.F.R. 404.1567(b) subject to the following non–exertional
limitations:
The claimant is able to alternate between sitting and standing at will
without going off task; never climb ladders, ropes, or scaffolds;
occasionally climb ramps or stairs, balance, stoop, crouch, and crawl;
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limited to simple, routine, repetitive tasks; occasional changes in the work
setting; no public interaction; brief and superficial contact with supervisors
and coworkers; no complex decision making; no rapid assembly line paced
work (daily quotas but not hourly quotas).
(Tr. 120.) In determining Plaintiff’s RFC, the ALJ analyzed Plaintiff’s symptoms using
the two–step process: (1) whether Plaintiff’s medical impairment could reasonably be
expected to produce her symptoms, and (2) the extent to which the symptoms limit the
claimant’s functioning. (Tr. 121.) The ALJ found Plaintiff’s “medically determinable
impairments could reasonably be expected to cause 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[.]” (Tr. 121.)
In making the RFC determination, the ALJ afforded great weight to the opinions
of the state agency medical consultants because their “opinions [were] consistent with the
weight of the evidence as it [was] before the Commissioner at the hearing level.”
(Tr. 127.) By contrast, the ALJ afforded little weight to the opinion of Dr. Meyerhoff
because, “The opinion, while consistent with the medical evidence of record, [did] not
address all functional limitations the claimant experiences.” (Tr. 125.) Further, the ALJ
found that Dr. Meyerhoff “was not able to review the most recent medical evidence.”
(Id.)
At step four, the ALJ found that Plaintiff had past relevant work as an assisted
living worker, certified nursing assistant, and job coach. (Tr. 128.) The ALJ then found
that an individual with the claimant’s age, education, work experience, and RFC could
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not perform the claimant’s past work, due to the exertional limits. (Tr. 128); see
20 C.F.R. § 416.965. At step five, the ALJ found that jobs exist in significant numbers in
the national economy that Plaintiff can perform given her age, education, work
experience, and RFC. (Tr. 128.) The ALJ relied on the vocational expert’s testimony that,
given the limitations provided, a person would be able to perform the requirements of
occupations such as polisher and stuffer. (Tr. 128–29, 143–46.) Accordingly, the ALJ
found that Plaintiff was capable of making a successful adjustment to other work existing
in significant numbers in the national and state economies and concluded that Plaintiff
was not disabled from her alleged onset date through the date of the decision. (Tr. 129.)
DISCUSSION
I.
Standard of Review
Congress has established the standards by which Social Security disability
insurance benefits may be awarded. The SSA must find a claimant disabled if the
claimant is unable “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). The claimant’s impairments must be “of such
severity that [s]he is not only unable to do h[er] previous work but cannot, considering
h[er] age, education, and work experience, engage in any other kind of substantial gainful
work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). The claimant
bears the burden of proving that she is entitled to disability insurance benefits under the
Social Security Act. See 20 C.F.R. § 404.1512(a). Once the claimant has demonstrated
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that she cannot perform past work due to a disability, “the burden of proof shifts to the
Commissioner to prove, first that the claimant retains the [RFC] to do other kinds of
work, and, second that other work exists in substantial numbers in the national economy
that the claimant is able to do.” Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000)
(citations omitted).
The Court has the authority to review the Commissioner’s final decision denying
disability benefits to Plaintiff. 42 U.S.C. § 405(g); Kluesner v. Astrue, 607 F.3d 533, 536
(8th Cir. 2010). If the Commissioner’s decision is supported by substantial evidence in
the record as a whole, then the decision will be upheld. 42 U.S.C. § 405(g); Kluesner, 607
F.3d at 536 (citations omitted). “Substantial evidence is less than a preponderance, but
enough that a reasonable mind might accept as adequate to support a conclusion.” Lewis
v. Barnhart, 353 F.3d 642, 645 (8th Cir. 2003). This standard is “something less than the
weight of the evidence and it allows for the possibility of drawing two inconsistent
conclusions, thus it embodies a zone of choice within which the Secretary may decide to
grant or deny benefits without being subject to reversal on appeal.” Culbertson v.
Shalala, 30 F.3d 934, 939 (8th Cir. 1994). The Court thus considers both evidence that
supports the Commissioner’s decision and evidence that detracts from it. Kluesner, 607
F.3d at 536. If, after review, the record as a whole supports the Commissioner’s findings,
the Commissioner’s decision must be upheld, even if the record also supports the
opposite conclusion. Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008); Goff v. Barnhart
421 F.3d 785, 789 (8th Cir. 2005).
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II.
Analysis of the ALJ’s Decision
A.
The ALJ did not err in evaluating the work-related limitations from
the examining physician Dr. June Meyerhoff.
In evaluating a claimant’s work-related limitations, the ALJ must evaluate every
medical opinion received, regardless of the source. 20 C.F.R § 404.1527(c). Generally,
the ALJ gives more weight to medical opinions from treating sources, “since these
sources are likely to be the medical professionals most able to provide a detailed,
longitudinal picture of [a claimant’s] medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations.” 20 C.F.R § 404.1527(c)(2).
If the ALJ does not give the treating source’s opinion controlling weight under
section (c), the ALJ applies the factors listed in paragraphs (c)(2) through (c)(6) in
determining the weight to give the medical opinion. 20 C.F.R. § 404.1527(c). These
factors include: the nature and extent of the treating relationship; degree to which
relevant evidence supports the physician’s opinion; consistency between the opinion and
the record as a whole; whether the physician is a specialist in the area in which the
opinion is based; and other factors which support or contradict the opinion.
20 C.F.R. § 404.1527(d). The ALJ will then give good reasons in their notice of
determination or decision for the weight given to a treating source's medical opinion.
20 C.F.R. § 404.1527(c)(2).
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Plaintiff first saw Dr. Meyerhoff on December 6, 2014, after she protectively filed
a Title II application for a period of disability and disability insurance benefits in July
2014. While Dr. Meyerhoff eventually became Plaintiff’s therapist from March 2015 to
July 2015, at the time she gave her December 2014 opinion, Dr. Meyerhoff’s relationship
with Plaintiff was that of a one-time consulting examiner. (Tr. 565–71, 712–25, 881–83.)
The limited relationship at the time of Dr. Meyerhoff’s opinion, according to the ALJ,
could not provide the longitudinal picture of Plaintiff’s medical impairments as described
in 20 C.F.R. § 404.1527(c). Therefore, Dr. Meyerhoff’s December 2014 opinion was not
entitled to the greater weight otherwise assigned to a treating physician, because of her
status as a consulting examiner at the time. See 20 C.F.R. § 404.1527(c).
The ALJ found that Dr. Meyerhoff’s opinion was entitled to little weight in
accordance with the factors described in (c)(2) through (c)(6). (Tr. 125.) The ALJ gave
two reasons in his decision for the weight given to Dr. Meyerhoff’s opinion: (1) that the
opinion, while consistent with the medical evidence of record, did not address all
functional limitations of the claimant; and (2) that Dr. Meyerhoff was not able to review
the most recent medical evidence. (Id.) These reasons are sufficient to satisfy the ALJ’s
obligation to give good reasons for the weight given to the opinion.
20 C.F.R. § 404.1527(c). After review of the record, the Court finds that the ALJ
properly assigned little weight to Dr. Meyerhoff’s opinion. But even if more weight
should have been assigned, the Court finds no reason for remand because
Dr. Meyerhoff’s opinion is still reflected in the RFC the ALJ provided. First,
Dr. Meyerhoff opined that Plaintiff is easily distracted and has poor concentration.
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(Tr. 125.) Addressing this concern, the RFC limits Plaintiff’s abilities to: simple, routine
repetitive tasks; with occasional changes in the work setting; and with no complex
decision making. (Tr. 120.) Dr. Meyerhoff also opined that Plaintiff has a very slow pace.
(Tr. 125.) The RFC states that there should be no rapid assembly line work, calling for
daily quotas, but not hourly quotas. (Tr. 120.) In addition, Dr. Meyerhoff opined that
Plaintiff would not be able to respond appropriately to others in the workplace. (Tr. 125.)
The RFC, however, limits Plaintiff to brief and superficial contact with supervisors and
coworkers. (Tr. 120.) And while Dr. Meyerhoff opined that Plaintiff is not able to be
around the public (Tr. 125), the RFC states that Plaintiff should have no public
interaction. (Tr. 120.) Finally, Dr. Meyerhoff opined that Plaintiff is not able to tolerate
work life stressors. (Tr. 125.) The RFC effectively reduces the amount of work stressors
through these prior provisions. By accommodating for a slower pace; simple, routine, and
repetitive tasks; and limited interaction with others, the RFC reduces Plaintiff’s work
place stress in accordance with her functional limitations.
In sum, the substantial evidence in the record as a whole supports the ALJ’s
findings at step four. The ALJ permissibly assigned little weight to the opinion of the
consulting examiner, Dr. June Meyehoff, and notwithstanding this determination, the
RFC reflects Dr. Meyerhoff’s opinion nonetheless.
B.
The ALJ did not err in evaluating the work-related limitations from
the state agency medical experts.
The ALJ considered the opinion of the state agency physical and mental health
consultants in determining the RFC, and assigned them great weight. (Tr. 127.) The ALJ
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found that the state agency experts’ opinions were, “generally consistent with the weight
of the evidence as it [was] before the Commissioner at the hearing level.” (Id.) Further,
the ALJ noted that, “the state agency consultants have specialized knowledge in
evaluating physical and mental health symptoms and impairments under the standards of
the Social Security Act.” (Id.) For these reasons, the ALJ assigned great weight to the
opinion of the state agency medical experts in formulating the RFC. (Id.)
The great weight assigned to the opinion of the state agency experts is then also
reflected in the RFC. The state agency experts opined that Plaintiff is moderately limited
in her ability to carry out very short and simple instructions. (Tr. 156.) The RFC limits
Plaintiff to: simple, routine, repetitive tasks; with no complex decision making. (Tr. 120.)
The state agency experts also opined that Plaintiff is moderately limited in her ability to
maintain attention and concentration for extended periods. (Tr. 156.) The RFC limits
Plaintiff’s abilities to simple, routine, repetitive tasks; with occasional changes in the
work setting; and with no complex decision making. (Tr. 120.) The state agency experts
opined that Plaintiff is moderately limited in her ability to complete a normal workday
and workweek without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and length of rest periods.
(Tr. 156.) The RFC states that there should be no rapid assembly line paced work, daily
quotas, but not hourly quotas, and provides for occasional changes in the work setting.
(Tr. 120.) Finally, the state agency experts opined that Plaintiff is moderately limited in
her ability to maintain socially appropriate behavior. (Tr. 156). And the RFC limits
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Plaintiff to brief and superficial contact with supervisors and coworkers, with no public
interaction. (Tr. 120.)
Plaintiff argues that the ALJ erred in failing to include all the limitations set forth
by the state agency experts and first points out that there are significant differences
between the limitations as described by the state agency experts and the RFC. (Pl.’s
Mem. 26–28.) The Commissioner’s Program Operations Manual System (POMS)
DI 24510.060(B)(2) states that the Mental RFC Form is a summary document that does
not constitute the RFC assessment. Thus, because the Mental RFC Form is merely a
summary document, the ALJ is not bound to use the language of the state agency experts’
report verbatim. (See Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) (noting that the
final residual functioning capacity determination is left to the ALJ). The ALJ
acknowledged that the RFC described was formulated in more “policy-complaint
language than the limitations set forth in the state agency physical and mental health
consultants’ reports, and is slightly different in wording as a result.” (Tr. 127.) Yet, even
with this policy-complaint language, the RFC “is generally consistent with the limitations
set forth by the state agency physical and mental health consultants, although worded
slightly differently.” (Id.)
Next, Plaintiff argues that the RFC failed to include a number of limitations as set
forth in the opinion of the state agency experts. (Pl.’s Mem. 26–28.) These opinions
include that Plaintiff is moderately limited in her ability to perform activities within a
schedule, maintain regular attendance, to be punctual within customary tolerances, and to
adhere to basic standards of neatness and cleanliness. (Tr. 156.) However, these
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limitations have not been raised anywhere else in the record. (See, e.g., Tr. 565–70, 688–
91, 697–701, 712–25, 728–737, 797–802, 827–30, 833–37, 839–49, 881–89.) Thus, the
ALJ properly discounted these portions of the state agency experts’ opinion as
inconsistent with the record as a whole. Further, because the ALJ assigned great weight
to the opinion rather than adopting the opinion in its entirety, the ALJ is entitled to
discount this portion of state agency experts’ opinion. See Pirtle v. Astrue, 479 F.3d 931,
934 (8th Cir. 2007) (finding that the ALJ properly relied on the portion of the opinion
which was supported by substantial record evidence and properly disregarded the
unsupported advisory portion of the treating physician’s RFC opinion).
Therefore, the substantial evidence in the record as a whole supports the ALJ’s
findings at step five. The ALJ permissibly assigned great weight to the opinion of the
state agency experts, and the RFC assessment and hypothetical question 2 precisely set
forth Plaintiff’s credible limitations.
ORDER
Based on the foregoing, and all the files, records, and submissions herein,
IT IS HEREBY ORDERED that:
1.
Plaintiff’s Motion for Summary Judgment (Doc. No. 13) is DENIED;
2
The hypothetical question posed was consistent with the RFC provided by the
ALJ. Because the Court concludes that there was no error with the RFC provided, there
likewise was no error with the hypothetical asked.
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2.
Defendant’s Motion for Summary Judgment (Doc. No. 16) is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Date: January 25, 2019
s/ Becky R. Thorson_________
BECKY R. THORSON
United States Magistrate Judge
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