Reijo v. Saul

Filing 18

ORDER denying 13 Motion for Summary Judgment; and granting 16 Motion for Summary Judgment. (Written Opinion) Signed by Magistrate Judge Elizabeth Cowan Wright on 7/14/2021. (SK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
ANGIE R.,

Case No. 20-cv-1442 (ECW)
Plaintiff,

v.

ORDER

ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.

This matter is before the Court on Plaintiff Angie R.’s (“Plaintiff”) Motion for
Summary Judgment (Dkt. 13) and Defendant Commissioner of Social Security Andrew
Saul’s (“Defendant”) Motion for Summary Judgment (Dkt. 16). Plaintiff filed this case
seeking judicial review of a final decision by Defendant denying her application for
disability insurance benefits.
I.

BACKGROUND

On December 19, 2016, Plaintiff filed an application for Disability Insurance
Benefits under Title II of the Social Security Act alleging disability as of June 3, 2016
due to multiple sclerosis (“MS”), myofascial pain, migraines, and sleeping problems. 1
(R. 170, 190.) Her application was denied initially and on reconsideration. (R. 78, 93.)
Plaintiff filed a written request for a hearing, and on May 8, 2019, Plaintiff appeared and

1

The Social Security Administrative Record (“R.”) is available at Docket Entry 12.

testified at a hearing before Administrative Law Judge Catherine Ma (“ALJ”). (R. 13,
29.)
The ALJ issued an unfavorable decision on June 25, 2019, finding that Plaintiff
was not disabled. (R. 14-23.)
Following the five-step sequential evaluation process under 20 C.F.R.
§ 404.1520(a), 2 the ALJ first determined at step one that Plaintiff had not engaged in
substantial gainful activity during the period from the alleged onset date of June 23, 2016.
(R. 15.)
At step two, the ALJ determined that Plaintiff had the following severe
impairments: multiple sclerosis and fibromyalgia. (R. 15.)
At the third step, the ALJ determined that Plaintiff did not have an impairment that
met or medically equaled the severity of one of the listed impairments in 20 C.F.R. part
404, subpart P, appendix 1. (R. 16.)

2

The Eighth Circuit described this five-step process as follows:
The Commissioner of Social Security must evaluate: (1) whether the
claimant is presently engaged in a substantial gainful activity; (2) whether
the claimant has a severe impairment that significantly limits the claimant’s
physical or mental ability to perform basic work activities; (3) whether the
claimant has an impairment that meets or equals a presumptively disabling
impairment listed in the regulations; (4) whether the claimant has the residual
functional capacity to perform his or her past relevant work; and (5) if the
claimant cannot perform the past work, the burden shifts to the
Commissioner to prove that there are other jobs in the national economy that
the claimant can perform.

Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
2

At step four, after reviewing the entire record, the ALJ concluded that Plaintiff had
the following residual functional capacity (“RFC”):
[T]o perform light work as defined in 20 CFR 404.1567(b) except she has
additional limitations. The claimant can lift/carry/push/pull twenty pounds
occasionally and ten pounds frequently. She can stand/walk six hours in an
eight-hour workday. She can sit for six hours in an eight-hour workday. The
claimant can have frequent exposure to extreme cold. She can never have
exposure to extreme heat. The claimant can never climb ladders, ropes, or
scaffolds. She can never have exposure to hazards such as unprotected
heights, dangerous machinery, or commercial driving.
(R. 17.)
The ALJ concluded, based on the above RFC and the testimony of the vocational
expert, that Plaintiff could perform her past work as an IT consultant/analyst (DOT Code
032.262-010); project management (DOT Code 189.117-030); and contract
administration/consultant (DOT Code 119.267-018). (R. 20-21.) The ALJ also
determined, in the alternative, that given Plaintiff’s age, education, work experience, and
residual functional capacity, there were other jobs that exist in significant numbers in the
national economy that she also could perform, including work as an office cleaner (DOT
Code 323.687-014); cashier (DOT Code 211.462-010); and wireworker (DOT Code
728.684-022). (R. 22.)
Accordingly, the ALJ deemed Plaintiff not disabled. (R. 23.)
Plaintiff requested review of the decision. (R. 1.) On April 29, 2020, the Appeals
Council denied Plaintiff’s request for review, which made the ALJ’s decision the final
decision of the Commissioner. (R. 1-3.) Plaintiff then commenced this action for
judicial review.

3

The Court has reviewed the entire administrative record, giving particular
attention to the facts and records cited by the parties.
II.
A.

RELEVANT RECORD

Medical Record
Plaintiff was seen on June 3, 2016 with respect to her MS. (R. 275.) While

Plaintiff reported stressors pertaining to employment and marriage, the psychological
assessment at that time showed no anxiety or depression. (R. 276, 278.)
On July 6, 2016, Plaintiff claimed difficulty with fatigue and alertness related to
her MS involving hypersomnia. (R. 318, 320.) Her mental health evaluation showed that
Plaintiff was oriented to time, place, and person, and she showed a normal mood and
affect. (R. 321.)
A September 19, 2016 mental status examination demonstrated that Plaintiff was
“awake and alert; oriented to time/place/person, speech showed normal fluency; syntax
and comprehension, intact recent and remote memory; attention span and concentration;
language and fund of knowledge.” (R. 524.)
On September 28, 2016, Plaintiff reported fatigue, which involved impaired
memory or concentration. (R. 329.) Specifically, Plaintiff’s reported memory issues
included difficulty concentrating, difficulty organizing thoughts, and feelings of mental
fogginess. (R. 329.) Plaintiff endorsed symptoms relating to irritability. (R. 329.) It
was noted that Plaintiff had no mental health diagnoses, treatment, or medication outside
of seeing a marriage therapist. (R. 329.) There was no mental health diagnosis provided
for Plaintiff. (R. 335.)
4

On October 28, 2016, Plaintiff was seen again for a follow-up related to her MS.
(R. 519.) While Plaintiff complained of difficulty concentrating, her neurological
examination showed that Plaintiff was alert, attentive, oriented, and cooperative; she was
a good historian; and her affect and mood appeared stable. (R. 521.)
On November 2, 2016, Ralph Shapiro, M.D., saw Plaintiff in relation to her MS,
during which Plaintiff professed no anxiety, depression, memory loss, or panic attacks.
(R. 288.)
On November 14, 2016, Plaintiff was seen in part for her chronic headaches,
fibromyalgia, and chronic pain. (R. 338.) Plaintiff endorsed the following mood-related
symptoms: fatigue/decreased energy, poor quality sleep, decreased appetite, weight loss
of 10 lbs. in the last 2 months, feeling worthless or guilty, decreased libido, decreased
short-term memory, and depression. (R. 338.) Plaintiff claimed stress related to her
condition, but that she coped with this by spending time alone, spending time with family
and friends, spirituality, breathing, and diversion. (R. 343.) The mental health status
evaluation for Plaintiff was as follows:
Mrs. [R.] was pleasant and cooperative during interview. Eye contact was
direct. Speech was of normal rate and tone; conversation was circumstantial.
She verbalized orientation to date, person, and place. Memory appeared
normal as evidenced by accurate account of medical history. Mood was
anxious and the affect was congruent. There was no evidence of disorder in
thought, form, or content. This was evidenced by clear and consistent
ideation and thought process. Fund of knowledge appears appropriate for
level of education, age, and life experience. Abstract reasoning and
judgment appeared intact.
(R. 344.)

5

On November 15, 2016, Plaintiff was seen for pain rehabilitation. (R. 351.)
Plaintiff noted no past psychiatric history. (R. 354.) The examination of Plaintiff
showed that she:
was alert and fully oriented with appropriate grooming and hygiene. She
maintained eye contact. She was cooperative and engaging. Her speech was
of normal rate, rhythm, and volume with appropriate use of language. Her
mood was subdued. Her affect was restricted, anxious. Thought processes
were linear without formal thought disorders. No signs of delusions. No
signs of hallucinations. Cognition, memory were grossly intact. Attention,
concentration grossly intact. She had fair insight and judgment and revealed
motivation to engage in PRC programming and follow treatment
recommendations. She indicated fleeting passive death [sic] with in setting
of pain and associated symptoms. She denied specific plan or intent to act
on her thoughts and denied a history of suicidal behavior.
(R. 354.) There was no mental health diagnosis for Plaintiff, but there was a
recommendation for a psychometric assessment to evaluate mood, cognition, and the
impact of pain on her level of functioning and monitoring and treating her mood/anxiety
as clinically indicated. (R. 355.)
On November 25, 2016, Plaintiff underwent another evaluation of her MS. (R.
409.) Dr. Natalie Parks noted that despite having an MS diagnosis going back 20 years,
her neurological examination remained entirely normal. (R. 411-12.) It was noted that
even if her MS was medically confirmed via an MRI, her prognosis was excellent based
on her history of normal examinations. (R. 412.)
Plaintiff participated in a three-week pain rehabilitation program with respect to
her complaint of pain in multiple sites of her body with fatigue. (R. 456.) It was noted
that Plaintiff attended daily group therapy sessions on stress and mood management. (R.
457.) Plaintiff was not on any medication for mood. (R. 457.) During her intake in
6

November 2016, Plaintiff admitted to no past psychiatric history or hospitalizations, and
reported that she did not see a therapist. (R 342.) Plaintiff was pleasant and cooperative
during the intake interview; eye contact was direct; speech was of normal rate and tone;
conversation was circumstantial; her memory appeared normal; her mood was anxious;
her affect was congruent; there was no evidence of disorder in thought, form, or content;
and her abstract reasoning and judgment appeared intact. (R. 344.) Throughout her
group therapy sessions, Plaintiff was largely described as having calm mood, a
congruent/neutral affect, an organized thought process; she demonstrated active listening;
and she was attentive. (See, e.g., R. 370-88, 392, 394, 397, 401-03, 420-24, 432.)
Based on the Plaintiff’s responses on the Patient Health Questionnaire (PHQ-9)
upon admission to the Pain Rehabilitation Program, she scored 15 on this measure (range
1 to 27), suggesting the presence of moderately severe (15-19) depressive
symptomatology. (R. 458.) Upon dismissal, Plaintiff scored 10 on this measure,
indicating moderate (10-14) depressive symptomatology. (R. 458.) This represented a
decrease in depressive symptomology compared to admission. (R. 458.)
It was also noted that Plaintiff had reported no psychiatric history or
hospitalizations. (R. 460.) Her mental status examination as of her December 7, 2016
dismissal from the pain rehabilitation program was as follows:
On dismissal, [Plaintiff] was pleasant and cooperative. Eye contact was
direct. Speech was of normal rate and tone; conversation was focused on
topic. She verbalized orientation to date, person, and place. Memory
appeared normal as evidenced by accurate account of medical history. Mood
was euthymic and the affect was congruent. There was no evidence of
disorder in thought, form or content. This was evidenced by clear and
consistent ideation and thought process. Fund of knowledge appears
7

appropriate for level of education, age, and life experience.
reasoning and judgment appeared intact.

Abstract

(R. 460.)
On December 13, 2016, Plaintiff complained of difficulty with concentrating and
was started on a trial of Adderall. (R. 516-17.) Her neurologic examination indicated
that Plaintiff was: Alert and oriented x 3; and her speech showed normal fluency, syntax,
and comprehension. (R. 517.)
On January 26, 2018, Plaintiff was seen for an illness. (R. 1349.) As part of the
psychiatric examination, Dr. Boris Gerber found that Plaintiff was alert and oriented with
normal affect and insight. (R. 1351.) Plaintiff had similar findings on numerous dates
during the period of November 2017 through March 2019. (See, e.g., R. 1342, 1359,
1367, 1383, 1397, 1431, 1483, 1486, 1489, 1493, 1506, and 1518.) In addition, at her
September 25, 26, and 27, 2018 medical examinations, Plaintiff noted that she had no
issues with anxiety or depression, and her examination showed that she was alert and
oriented with a normal affect. (R. 1417-22.)
On May 22, 2018, Plaintiff represented that excessive fatigue, which was believed
to be secondary to her MS, was the most limiting factor in allowing her to be able to
return to any meaningful employment. (R. 1495.) On September 25, 2018, it was noted
that Plaintiff had no issues with anxiety or depression. (R. 1417.)
On January 19, 2019, Plaintiff’s treating provider Angela Borders-Robinson, D.O.,
filled out a Multiple Sclerosis Medical Source Statement in which she asserted that
Plaintiff’s symptoms included mental fatigue, impaired attention, and impaired

8

concentration, but that she did not show signs of impaired memory, impaired judgment,
mood swings, depression, emotional liability, personality change, or confusion. (R.
1476.) Dr. Robinson also opined that emotional factors did not contribute to the severity
of Plaintiff’s symptom and functional limitations. (R. 1478.)
B.

Plaintiff’s Testimony Before the ALJ
At the hearing before the ALJ, in response to the ALJ’s question asking why she

had been unable to work since June 3, 2016, Plaintiff testified in part as follows:
Q
Okay, so Mr. or Ms. [R.], then let me ask you why have you been
unable to work, and if you can please explain in your own words since June
3rd of 2016?
A
Sure. I’ve, I’ve been well motivated to continue to work and use my
degree so I’ve, I’ve spent a lot of time managing symptoms over the years
and just modifying as needed. But in, in 2016 when I stopped working the
hypersomnia that I have as a result of MS worsened and the medication that
I was taking at the max dose was no longer effective for it. And it, I had
already been struggling at home with the family, they were concerned that I
had no energy because of fatigue and sleepiness both to do anything but
work and while I was considering those problems at home I took my
medication and I drank a good amount of coffee and I geared up to continue
working and go to work and I dozed at the steering wheel again on my way
to work. And at that point the doctors tried different medications and we
ended up back to the same medication and my boss allowed me to work
from home quite a lot, which was really wonderful, but in the end along with
all of the pain and sleepiness and fatigue and sleepiness, the fatigue being
muscle fatigue, especially of my neck. And it, it became too difficult to
manage working eight hours a day and I wanted to continue to seek
treatments that might work but I found that my case, my medical case is
very complicated and it became increasingly more of a job just to manage
that medical case for myself and all of the symptoms. And I was very
hopeful that we could find some therapies that worked that would allow me
to go back to work but we haven’t found any and even up until this week
my neurologist have nothing left for me to try other than to manage a very
high level of pain as it is, and just manage through the physical difficulties
and limitations that I have.

9

Q

I see.

A

Did that answer your question?

Q
I’m, I’m, well, it did generally but I’m trying to figure out how this,
you know, the MS how does it affect you? I understand the, the fatigue but
do you also have like flare up, is this based on flare ups as well or?
A
Yes. My MS is relapsing and remitting, it’s still actively doing
damage that we can see on MRI and, and then also with in that heat and cold
both bother me, in addition too I have some times generally worsening of
old symptoms so how, how do I describe, I have a lot of chronic symptoms
but they change, you know, they, they have kind of some partially
predictable curves based off of severity, based off of the treatments that I
do, which are nerve blocks and injections and the trigger points and
medications and pain relievers. And then, you know, physical conditioning
and keeping active as is also something that I struggle with, in general I
know I need to do that to keep the MS from growing and getting worse but
I also struggle with doing it because I can’t get to the level of physical
activity that the doctors want me to be at as well for, just for general health.
So yeah, it is, it is different every day, I don’t know –
(R. 42-44.)
III.

LEGAL STANDARD

Judicial review of an ALJ’s denial of benefits is limited to determining whether
substantial evidence on the record as a whole supports the decision, 42 U.S.C. § 405(g);
Chismarich v. Berryhill, 888 F.3d 978, 979 (8th Cir. 2018), or whether the ALJ’s
decision results from an error in law, Nash v. Comm’r, Soc. Sec. Admin., 907 F.3d 1086,
1089 (8th Cir. 2018). As defined by the Supreme Court:
The phrase “substantial evidence” is a “term of art” used throughout
administrative law to describe how courts are to review agency factfinding.
Under the substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains sufficient evidence to
support the agency’s factual determinations. And whatever the meaning of
“substantial” in other contexts, the threshold for such evidentiary sufficiency
is not high. Substantial evidence . . . is more than a mere scintilla. It means—
10

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).
“[T]his court considers evidence that detracts from the Commissioner’s decision
as well as evidence that supports it.” Nash, 907 F.3d at 1089 (marks and citation
omitted). “If substantial evidence supports the Commissioner’s conclusions, this court
does not reverse even if it would reach a different conclusion, or merely because
substantial evidence also supports the contrary outcome.” Id. “In other words, if it is
possible to reach two inconsistent positions from the evidence, and one of those positions
is that of the [ALJ], the Court must affirm the decision.” Jacob R. v. Saul, No. 19-CV2298 (HB), 2020 WL 5642489, at *3 (D. Minn. Sept. 22, 2020) (citing Robinson v.
Sullivan, 956 F.2d 836, 838 (8th Cir. 1992)).
In reviewing the record for substantial evidence, the Court may not substitute its
own judgment or findings of fact for that of the ALJ. See Hilkemeyer v. Barnhart, 380
F.3d 441, 445 (8th Cir. 2004). Assessing and resolving credibility is a matter properly
within the purview of the ALJ. See Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016)
(citing Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003) (“Our touchstone is that
[a claimant’s] credibility is primarily a matter for the ALJ to decide.”).
IV.

DISCUSSION

Plaintiff makes the following argument for remand to the ALJ:
Issue: Social Security requires ALJs to use a specific process for evaluating
mental limitations. The Eighth Circuit has found it is harmful error to omit
recording the process when a claimant has mental limitations arising from a
neurological disorder instead of a mental health disorder. Do those rules
11

apply to [R.’s] mental limitations arising from her neurological disorder,
multiple sclerosis?
The rules should apply to [R.’s] limitations. The ALJ’s failure to use the
Psychiatric Review Technique (PRT) to evaluate [R.’s] mental impairments
was a harmful error.
(Dkt. 14 at 7-8.) According to Plaintiff, a PRT is used to determine severity at step two
and whether a listing is satisfied at step three, and that the findings in the PRT are then
used in shaping the RFC. (Id. at 8.)
Defendant counters that MS does not require a PRT because MS is a physical,
neurological condition. (Dkt. 17 at 7-8.) Defendant also notes that Plaintiff did not
allege or establish a severe mental medical condition, and therefore the ALJ did not need
to use a PRT. (Id. at 9-11.)
At the second step of the analysis, the SSA considers “the medical severity of [a
claimant’s] impairment(s).” 20 C.F.R. § 404.1520(a)(4)(ii). It is a claimant’s burden to
demonstrate a severe medically determinable impairment at step two of the sequential
evaluation, but that burden is not difficult to meet and any doubt about whether the
claimant met her burden is resolved in favor of the claimant. See Kirby v. Astrue, 500 F.
3d 705, 707-08 (8th Cir. 2007) (citations omitted). An impairment is not severe if it does
not significantly limit a claimant’s physical or mental ability to do basic work activities.
See id. at 707; 20 C.F.R. § 404.1520(c). The severity showing “is not an onerous
requirement for the claimant to meet, but it is also not a toothless standard.” Kirby, 500
F.3d at 708 (citations omitted). In determining the severity of a claimant’s mental
impairments at step two of the sequential evaluation, the ALJ must use the analysis

12

described in 20 C.F.R. § 404.1520a. See Cuthrell v. Astrue, 702 F.3d 1114, 1117 (8th
Cir. 2013). The ALJ first “evaluate[s] [the claimant’s] pertinent symptoms, signs, and
laboratory findings to determine whether [the claimant has] a medically determinable
mental impairment(s).” 20 C.F.R. § 404.1520a(b)(1). The ALJ “must then rate the
degree of functional limitation resulting from the impairment(s)” in four broad functional
areas: (1) understand, remember, and apply information; (2) interact with others;
(3) concentrate, persist, maintain pace; and (4) adapt or manage oneself. See id.
§ 404.1520a(b)(2), (c)(3). The criteria are rated using a five-point scale of none, mild,
moderate, marked, and extreme. See id. § 404.1520a(c)(4).
Both parties cite to the Eighth Circuit decision in Cuthrell, supra, in support of
their respective positions as to whether a PRT was required in this case. In Cuthrell, the
plaintiff was in a number of accidents, which resulted in a head injury. 702 F.3d at 1115.
The ALJ found that Cuthrell had two severe impairments: a history of injury to the right
leg and of a closed head injury. Id. at 1116. The ALJ ultimately found Cuthrell not
disabled and denied benefits. Id. On appeal, Cuthrell argued in part that the ALJ erred
because a PRT was not performed. Id. The Eighth Circuit noted that:
An additional “special technique” (the PRT) is required in evaluating
“mental impairments.” 20 C.F.R. §§ 404.1520a(a); 416.920a(a). When
mental impairments are present, the PRT is mandatory. Id. (“[W]hen
we evaluate the severity of mental impairments . . . we must follow a special
technique at each level in the administrative review process.”); Nicola v.
Astrue, 480 F.3d 885, 887 (8th Cir. 2007). The PRT must be documented in
the ALJ’s written decision, including the findings and conclusions based on
the PRT. §§ 404.1520a(e)(4); 416.920a(e)(4).

13

Id. at 1117 (emphasis added). The Commissioner in Cuthrell argued that a PRT was not
required because Cuthrell’s head injury was not a mental impairment. Id. In Cuthrell,
the ALJ, in conducting his analysis of the evidence, noted that a provider found that the
claimant had dementia due to a closed head injury with impaired memory, concentration,
and motor function, as well as a mood disorder. Id. at 1117. The Eighth Circuit
acknowledged the difficulty in that case because there was no specific listing for the head
injury:
As the Regulations do not define “mental impairment,” the Commissioner’s
Listing of Impairments assists in classifying injuries. See 20 C.F.R. pt. 404,
subpart P, app. 1.1. The Commissioner is correct that neurological
impairments are distinct from mental impairments. Compare id. § 11.00
(“Neurological”), with § 12.00 (“Mental Disorders”). The term “closed head
injury” does not appear in the Listing. The closest listing, “traumatic brain
injury,” is in the Neurological Listing. Id. § 11.00(F). The listing indicates
that traumatic brain injury “may result in neurological and mental
impairments,” and prescribes the use of § 11.18 (“Cerebral Trauma”) for
direction. The listing for cerebral trauma has one line: “Evaluate under the
provisions of 11.02, 11.03, 11.04, and 12.02, as applicable.” Id. § 11.18.
Thus, cerebral trauma, or traumatic brain injury, can be either neurological
(11.02, 11.03, 11.04), mental (12.02), or both.
Id. (emphasis added).
Because traumatic brain injury can result in mental impairments, the Eighth
Circuit court looked to § 12.02 (“Organic Mental Disorders”), which was present in the
listing at that time. 3 Id. Based on Listing 11.18 and the ALJ’s recitation of a provider’s
findings that Cuthrell had “dementia due to a closed head injury with impaired memory,
concentration and motor function and a mood disorder[,]” the Eighth Circuit concluded

The Court notes that the present version of Listing 12.02 deals with
neurocognitive disorders.
3

14

based on § 12.02 (which was to be considered under the then-existing Listing 11.18) that
Cuthrell suffered from a severe mental impairment and as a result the ALJ erred by not
completing any part of the PRT. Id. at 1117-18.
In this case, the ALJ found as follows with respect to steps two and three of the
sequential analysis:
3.

The claimant has the following severe impairments: multiple
sclerosis and fibromyalgia (20 CFR 404.1520(c)).

The above medically determinable impairments have imposed more than
minimal limitations on the claimant’s ability to engage in basic work-related
activities for at least a continuous twelve month period, as required by SSRs
85-28 and 16-3p.
Conversely, the claimant has sought treatment for a number of additional
conditions, but these impairments do not cause more than minimal limitations
in her ability to perform basic work-related activities for twelve continuous
months (20 CFR 404.1522; SSRs 85-28; 16-3p). For instance, the claimant
alleged migraines and asthma as disabling impairments (Hearing testimony;
Exhibit 2E/2). However, numerous medical professionals determined her
migraines and mild intermittent asthma were stable with conservative
treatment like occipital nerve blocks, Imitrex, and albuterol (Exhibits 2F/10,
23, 28, 37; 7F/72; 8F/8; 15F/7-8, 38). Physical examinations also routinely
revealed she had clear lungs with no wheezing, rhonchi, rales, respiratory
distress, or neurologic deficits (Exhibits 2F/26, 36; 3F/23, 30, 33; 7F/74;
15F/7, 15, 32, 90, 107).
Because treatment notes mentioned she had undergone a sleeve gastrectomy
prior to the alleged onset date and lost 100 pounds, I evaluated whether the
claimant’s body habitus adversely affected the claimant’s ability to perform
basic work-related activities pursuant to SSR 19-2p (Exhibit 3F/22). While
she had a Body Mass Index (BMI) ranging from 33.39 kg/m2 to 34.64 kg/m2
during the period at issue, she often denied symptoms such as chest pain and
shortness of breath (Exhibits 2F/25, 35; 3F/8, 22; l0F/6; 15F/32).
Additionally, the claimant’s pulses remained normal, she usually did not have
lower extremity edema, she was able to walk on her heels and toes, and she
could ambulate with a normal gait during evaluations (Exhibits 3F/23, 70;
4F/3, 7, 14; 5F/7, 11, 18, 23, 26, 29, 34; 7F/66; l0F/7; 15F/24, 32, 40; l 7F/14).
As such, while the claimant’s obesity could be expected to exacerbate
15

symptoms such as headaches and shortness of breath, I find the claimant’s
obesity does not cause more than minimal limitations in her ability to engage
in basic work-related activities.
Therefore, I find that these impairments were medically treated, not
durational, and/or no longer substantially interfere with her ability to function
on a daily basis. As such, I find them to be nonsevere impairments.
Nevertheless, I have considered the combined effects of the severe and
nonsevere impairments in assessing the claimant’s functional capacity
pursuant to 20 CFR 404.1523.
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
Based on the evidence in the record, none of the claimant’s impairments,
either singly or in combination, medically meets or equals any of the Listed
Impairments contained in 20 CFR Part 404, Subpart P, Appendix 1. No
treating, examining, or consulting physician has identified findings equivalent
in severity to the criteria of any listed impairment, nor does the evidence show
medical findings that are the same or equivalent to any listed impairment (e.g.,
Exhibits 1A; 2A; 4A; 6A).
Specifically, even though the claimant’s representative argued she meets or
equals Listing 11.09 for multiple sclerosis, I find that this condition does not
meet or medically equal this listing. Contrary to her hearing testimony that
she has trouble with balance and using her arms, there is no evidence of
disorganization of motor function of two extremities, resulting in an extreme
limitation in the ability to stand up from a seated position, balance while
standing or walking, or using the upper extremities. Healthcare providers
overwhelmingly determined her gait, heel/toe/tandem walk, squatting and
rising, balance, and coordination were all within normal limits (Exhibits
3F/43, 70; 4F/3, 7, 14; 5F/7, 11, 18, 23, 26, 29, 34; 7F/66; 8F/5, 70; 10F/7;
14F/l; 15F/24, 32, 40, 48; 17F/4, 14, 17, 21, 29). Additionally, as discussed
below, she does not have marked limitation in physical functioning. There is
also no evidence in the record that she has marked limitation in understanding,
remembering, or applying information; interacting with others; concentrating,
persisting, or maintaining pace; or adapting or managing herself even though
she alleged significant problems with regard to concentration,
comprehension, and handling stress and changes in routine, mental status
examinations overwhelmingly yielded unremarkable findings (Hearing
testimony; Exhibits 4E/1, 6-7; 4F/2). Medical professionals described her as
16

pleasant, cooperative, calm, engaging, alert, and oriented with normal mood
affect, grooming, hygiene, memory, fund of knowledge, abstract reasoning,
thought process, insight, judgment, comprehension, and ability to follow
commands (Exhibits 2F/26; 3F/23, 30, 53, 63, 80-81, 84, 88, 94, 129, 139,
143, 152; 4F/7, 10; 5F/7, 14, 34, 57; 7F/56, 66, 74; 10F/10; 15F/7, 15, 24, 91;
l 7F/3-4, 6).
Fibromyalgia is not a listed impairment under 20 CFR Part 404, Subpart P,
Appendix 1. However, when evaluated by reference to specific body systems
it may affect, the record shows that this impairment does not so impact one of
the claimant’s body systems as to raise her additional impairments to listinglevel severity. Furthermore, although I have considered the impact of SSR
12-2p on the analysis of fibromyalgia as medically determinable impairment,
I note that a ruling is not a Listing. As such, I find that the claimant’s
fibromyalgia has not met the criteria of any of the Medical Listings because
there is no Listing for fibromyalgia. However, pursuant to SSR 12- 2p, I
evaluated the intensity, persistence, and limiting effects of the claimant’s
associated symptoms when determining the extent to which the symptoms
limit the individual’s ability to do basic work activities as discussed at finding
five of this decision.
(R. 16-20 (emphasis in original and added).)
As stated previously, the only error raised by Plaintiff was the ALJ’s failure to use
the PRT with respect to the mental limitations arising from her neurological disorder,
MS, which she claims infected the rest of the sequential analysis. (Dkt. 14 at 7-8.)
Plaintiff is correct to concede that MS is a neurological disorder. Indeed, Listing 11.09
(multiple sclerosis) falls under § 11.00 Neurological Disorders of the Listings, which
provides:
Which neurological disorders do we evaluate under these listings? We
evaluate epilepsy, amyotrophic lateral sclerosis, coma or persistent
vegetative state (PVS), and neurological disorders that cause disorganization
of motor function, bulbar and neuromuscular dysfunction, communication
impairment, or a combination of limitations in physical and mental
functioning. We evaluate neurological disorders that may manifest in a
combination of limitations in physical and mental functioning. For example,
if you have a neurological disorder that causes mental limitations, such as
17

Huntington’s disease or early-onset Alzheimer’s disease, which may limit
executive functioning (e.g., regulating attention, planning, inhibiting
responses, decision-making), we evaluate your limitations using the
functional criteria under these listings (see 11.00G). Under this body system,
we evaluate the limitations resulting from the impact of the neurological
disease process itself. If your neurological disorder results in only mental
impairment or if you have a co-occurring mental condition that is not
caused by your neurological disorder (for example, dementia), we will
evaluate your mental impairment under the mental disorders body
system, 12.00.
See 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 11.00(A) 4 (emphasis added). Accordingly,
Listing 11.00(A) makes clear the Commissioner will normally consider any mental
limitation (e.g., regulating attention) caused by the neurological disorder under § 11. Id.
(“[I]f you have a neurological disorder that causes mental limitations . . . which may limit
executive functioning (e.g., regulating attention, planning, inhibiting responses, decisionmaking), we evaluate your limitations using the functional criteria under these listings
(see 11.00G). Under this body system, we evaluate the limitations resulting from the
impact of the neurological disease process itself.”). Only if the only impairment is
mental, or if the mental condition is independent of the neurological condition, will the
Commissioner consider such mental limitations under § 12.00 (“Mental Disorders”). Id.
(“If your neurological disorder results in only mental impairment or if you have a cooccurring mental condition that is not caused by your neurological disorder (for example,
dementia), we will evaluate your mental impairment under the mental disorders body

The Court relies on the listings in effect at the time of the Commissioner’s
decision as to Plaintiff’s claim. See Lerouge v. Saul, No. 4:19-CV-00087-SPM, 2020
WL 905756, at *8 (E.D. Mo. Feb. 25, 2020) (citing Revised Medical Criteria for
Evaluating Neurological Disorders, 81 Fed. Reg. 43048, 43051 n.6 (July 1, 2016)).
4

18

system, 12.00.”). Listing 11.00(G) explains that: “Neurological disorders may manifest
in a combination of limitations in physical and mental functioning. We consider all
relevant information in your case record to determine the effects of your neurological
disorder on your physical and mental functioning” and what is required to satisfy
11.00(G). See id. § 11.00(G). Again, only if “you do not have at least a marked
limitation in your physical functioning” does the Commissioner evaluate the claimant
under the Listings in § 12. (Id.)
As to MS specifically, Listing 11.00(N) explains how MS is evaluated under
Listing 11.09, including a claimant’s mental functioning:
We evaluate your signs and symptoms, such as flaccidity, spasticity, spasms,
incoordination, imbalance, tremor, physical fatigue, muscle weakness,
dizziness, tingling, and numbness when we determine your ability to stand
up, balance, walk, or perform fine and gross motor movements. When
determining whether you have limitations of physical and mental
functioning, we will consider your other impairments or signs and symptoms
that develop secondary to the disorder, such as fatigue; visual loss; trouble
sleeping; impaired attention, concentration, memory, or judgment; mood
swings; and depression. If you have a vision impairment resulting from your
MS, we may evaluate that impairment under the special senses body system,
2.00.
See 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 11.00(N)(2).
Here, Plaintiff takes the position that because Listing 11.09 for MS specifically
sets forth that it can cause limitations of mental function and contains a section mirroring
the PRT, it should be treated the same as Listing 11.18 for traumatic brain injuries was

19

treated by the Eighth Circuit in Cuthrell, and consequently, a PRT is required. 5 (Dkt. 14
at 11.)
This argument ignores critical differences in the Listings at issue in Cuthrell and
those at issue here. While it is not entirely clear when the Commissioner in Cuthrell
issued the decision on benefits, the version of Listing 11.18 in effect at that time provided
in its entirety: “Evaluate under the provisions of 11.02, 11.03, 11.04 and 12.02, as
applicable.” See, e.g., 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.18 (effective February 2,
2009 to November 4, 2009); see also Cuthrell, 702 F.3d at 1117 (“The listing for cerebral
trauma has one line: ‘Evaluate under the provisions of 11.02, 11.03, 11.04, and 12.02, as
applicable.’”) (emphasis added) (citation omitted). What was critical for the Eighth
Circuit in Cuthrell was the fact that Listing 11.18 specifically required the Commissioner

5

Plaintiff appears to be relying on the present version of Listing 11.18:
11.18 Traumatic brain injury, characterized by A or B:
A. Disorganization of motor function in two extremities (see 11.00D1),
resulting in an extreme limitation (see 11.00D2) in the ability to stand up
from a seated position, balance while standing or walking, or use the upper
extremities, persisting for at least 3 consecutive months after the injury; or
B. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a),
and in one of the following areas of mental functioning, persisting for at least
3 consecutive months after the injury:
1. Understanding, remembering, or applying information (see
11.00G3b(i)); or
2. Interacting with others (see 11.00G3b(ii)); or
3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or
4. Adapting or managing oneself (see 11.00G3b(iv)).

20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 11.18.
20

to evaluate under Listing 12.02 for organic mental disorder. Here, Listing 11.09,
reproduced below, does not require any evaluation under any Listing in § 12:
11.09 Multiple sclerosis, characterized by A or B:
A. Disorganization of motor function in two extremities (see 11.00D1),
resulting in an extreme limitation (see 11.00D2) in the ability to stand up
from a seated position, balance while standing or walking, or use the upper
extremities; or
B. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a),
and in one of the following:
1. Understanding, remembering, or applying information (see
11.00G3b(i)); or
2. Interacting with others (see 11.00G3b(ii)); or
3. Concentrating, persisting, or maintaining pace (see
11.00G3b(iii)); or
4. Adapting or managing oneself (see 11.00G3b(iv)).
20 C.F.R., Pt. 404, Subpt. P, App. 1, § 11.09.
Rather, in contrast to the version of Listing 11.18 in effect in Cuthrell, the current
Neurological Listings provide that the Listings in 12.00 are not even considered in
connection with neurological disorders (including MS) unless a mental impairment is the
only impairment or if the mental condition is independent of the neurological condition,
neither of which Plaintiff contends is the case here. Accordingly, Cuthrell does not
require the conclusion that a PRT is required here.
The Court notes that the Listings in § 12.00 do provide that neurocognitive
disorders stemming from MS might, under certain circumstances, be evaluated under
Listing 12.02, as set forth below:

21

B. Which mental disorders do we evaluate under each listing category?
1. Neurocognitive disorders (12.02).
a. These disorders are characterized by a clinically significant decline in cognitive
functioning. Symptoms and signs may include, but are not limited to,
disturbances in memory, executive functioning (that is, higher-level cognitive
processes; for example, regulating attention, planning, inhibiting responses,
decision-making), visual-spatial functioning, language and speech, perception,
insight, judgment, and insensitivity to social standards.
b. Examples of disorders that we evaluate in this category include major
neurocognitive disorder; dementia of the Alzheimer type; vascular dementia;
dementia due to a medical condition such as a metabolic disease (for example,
late-onset Tay–Sachs disease), human immunodeficiency virus infection,
vascular malformation, progressive brain tumor, neurological disease (for
example, multiple sclerosis, Parkinsonian syndrome, Huntington disease), or
traumatic brain injury; or substance-induced cognitive disorder associated with
drugs of abuse, medications, or toxins. (We evaluate neurological disorders
under that body system (see 11.00). We evaluate cognitive impairments that
result from neurological disorders under 12.02 if they do not satisfy the
requirements in 11.00 (see 11.00G).)
c. This category does not include the mental disorders that we evaluate under
intellectual disorder (12.05), autism spectrum disorder (12.10), and
neurodevelopmental disorders (12.11).
20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 12.00(B) (emphasis added).
But Plaintiff did not argue to the ALJ (and has not argued here) that she is
suffering from neurocognitive disorder as the result of her MS or that she should have
been evaluated under Listing 12.02, and nothing in the record indicates any
neurocognitive disorder that would require evaluation under the Listings in § 12. Rather
than directing the Commissioner to consider § 12 when evaluating MS, § 11 makes clear
that § 12 is only considered under certain circumstances—which are not alleged to be
present here. Boiled down to essentials, Plaintiff’s argument appears to that because

22

Listings 11.00(N) and 11.09 take into account her mental functioning, such as
concentration, and the record contains evidence of her decreased mental functioning, the
ALJ should have conducted a PRT consistent with 20 C.F.R. § 404.1520a. 6 However,
this is contrary to § 404.1520a and conflates the steps required in the analysis. See Virnig
v. Colvin, No. 13-CV-1539 PJS/TNL, 2014 WL 3864431, at *9-10 (D. Minn. Aug. 6,
2014) (“The first step requires evaluation of the pertinent symptoms, signs, and
laboratory findings to determine whether the claimant has a medically determinable
impairment. 20 C.F.R. § 404.1520a(b)(1). If the claimant has a medically determinable
mental impairment, the ALJ must document, in a written decision, the special technique
for analyzing the impairment.”). Section 404.1520a first requires an ALJ to “evaluate
[the claimant’s] pertinent symptoms, signs, and laboratory findings to determine whether
[the claimant has] a medically determinable mental impairment(s).” 20 C.F.R.
§ 404.1520a(b)(1). Only when a medically determinable mental impairment is identified
must an ALJ “then rate the degree of functional limitation resulting from the
impairment(s)” in four broad functional areas: (1) understand, remember, and apply
information; (2) interact with others; (3) concentrate, persist, maintain pace; and (4)
adapt or manage oneself.” See id. § 404.1520a(b)(2), (c)(3) (emphasis added).
Plaintiff points to the opinions of treating neurologist Dr. Borders-Robinson as
“endors[ing]” her symptoms of fatigue, visual loss, trouble sleeping, impaired attention,

The Court notes that Plaintiff does not even contest the ALJ’s finding that she did
not have a marked limitation in physical functioning so as to necessitate an examination
on her functioning under § 11.09(B)(1)-(4). (R. 16-17.)
6

23

concentration, and memory. (Dkt. 14 at 11.) There is nothing in that opinion that
indicates those symptoms resulted from a medically determinable mental impairment,
such as depression or anxiety. To the contrary, Dr. Borders-Robinson represented that
emotional factors did not contribute to the severity of Plaintiff’s symptoms and
functional limitations. (R. 1478.) Plaintiff also points to the January 9, 2019 consultation
with Dr. Borders-Robinson. (Dkt. 14 at 11.) Again, there is nothing in that record that
Plaintiff’s function is due to any mental impairment. Instead, Dr. Borders-Robinson
provides, “The steroids also help to improve her excessive daytime fatigue. This is her
main limiting factor for work ability. Although she has got some cognitive slowing it is
mainly impacted by her excessive daytime fatigue.” (R. 1485 (emphasis added).)
Moreover, the psychiatric examination by Dr. Borders-Robinson for Plaintiff was normal.
(R. 1486.) The assessment for Plaintiff relating to MS was “excessive disabling fatigue
secondary to relapsing multiple sclerosis.” (R. 1487.) In other words, it is the fatigue
from her MS that was the cause of Plaintiff’s purported cognitive difficulties, as opposed
to any mental condition. Similarly, the only impairment discussed in the May 22, 2018
report from Dr. Borders-Robinson, also relied upon by Plaintiff (Dkt. 14 at 11), was
fatigue secondary to MS. (R. 1495.) Indeed, Plaintiff acknowledged in her testimony
before the ALJ that her impediment was her fatigue. (R. 42-44.) While “a mental
impairment may cause fatigue,” SSR 96-8p, 1996 WL 374184, at *6, as opposed to the
physical fatigue posed by MS, Plaintiff has not even identified what mental impairment
she was suffering from during the relevant period, and the record contains no diagnosis as
to any mental illness. To the extent Plaintiff suffered from difficulties with concentration
24

and attention due to physical fatigue caused by her MS, the ALJ properly evaluated those
symptoms under § 11.
As stated previously, based on Listing 11.18 (incorporating § 12.02) and the ALJ’s
findings that Cuthrell had “dementia due to a closed head injury with impaired memory,
concentration and motor function and a mood disorder[,]” the Eighth Circuit concluded
that Cuthrell suffered from a severe mental impairment and as a result the ALJ erred by
not completing any part of the PRT. See Cuthrell, 702 F.3d at 1117-18. Here, unlike the
ALJ in Cuthrell, there was no such finding by the ALJ of any mental disorder or severe
mental impairment that triggered the need to complete a full PRT. In sum, because
substantial evidence in the record supports the finding that Plaintiff did not suffer from a
medically determinable mental impairment, the Court finds that the ALJ did not err in
failing to conduct a PRT at step two, or if there was an error that it was harmless. 7 See
Cuthrell, 702 F.3d at 1118.

7

The Court notes that Plaintiff also argued that the:
ALJ’s conclusion that [R.] could still perform her highly skilled past work
was incongruous with the evidence. [R.’s] employer made numerous
accommodations to keep her and she had earned her master’s degree just two
years prior to stopping work. It doesn’t make sense, unless you factor in the
ALJ’s error at step 2 and the subsequent reliance on the erroneous finding.
If [R.] had no problems at all with the mental requirements of work, then she
could have returned to her past work.

(R. 13-14.) Even assuming that this is correct, this argument ignores the fact that
the ALJ found that Plaintiff, based on the VE’s testimony, could perform her past
work generally and as actually performed (R. 21) and that a “VE can consider the
demands of the claimant’s past relevant work either as the claimant actually
performed it or, as here, as performed in the national economy.” Wright v. Astrue,
489 F. App’x 147, 149 (8th Cir. 2012) (citing 20 C.F.R. § 404.1560(b)(2))
25

V.

ORDER

Based on the above, and on the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.

Plaintiff Angie R’s Motion for Summary Judgment (Dkt. 13) is DENIED;

2.

Defendant Commissioner of Social Security Andrew Saul’s Motion for

and

Summary Judgment (Dkt. 16) is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY
DATED: July 14, 2021

s/Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge

(citations omitted). Moreover, the argument ignores the ALJ’s alternative finding
that Plaintiff, based on her RFC and the testimony of the VE, could perform jobs
that exist in significant numbers in the national economy. (R. 22.)
26