Azar v. Kijakazi

Filing 13

MEMORANDUM AND ORDER: Accordingly, Judgment will be entered separately in favor of Defendant in accordance with this Memorandum. Signed by Magistrate Judge Abbie Crites-Leoni on 3/27/2024. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
SONDRA L. AZAR
Plaintiff,
v.
MARTIN O’MALLEY, 1
Acting Commissioner of the Social
Security Administration,
Defendant.

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Case No. 1:22-CV-142-ACL

MEMORANDUM AND ORDER
Plaintiff Sondra L. Azar brings this action under 42 U.S.C. § 405(g), seeking judicial
review of the Social Security Administration Commissioner’s denial of her application for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act and Supplemental
Security Income (“SSI”) under Title XVI of the Act.
An Administrative Law Judge (“ALJ”) found that, despite Azar’s impairments, she was
not disabled as she had the residual functional capacity (“RFC”) to perform past relevant work as
a dispensing optician and as a hand packager.
This matter is pending before the undersigned United States Magistrate Judge, with consent
of the parties, under 28 U.S.C. § 636(c). A summary of the entire record is presented in the parties’
briefs and is repeated here only to the extent necessary. For the following reasons, the decision of
the Commissioner will be affirmed.

1

Martin O'Malley became the Commissioner of Social Security on December 20, 2023.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin O'Malley shall be
substituted for Kilolo Kijakazi as the defendant in this suit. See 42 U.S.C. § 405(g).
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I.

Procedural History

Azar filed her application for DIB on December 3, 2020. (Tr. 182–96). She claimed she is
unable to work due to severe disc degeneration in her spine, impaired functioning on the right-side
of her body, depression, high blood pressure, asthma, and rotator cuff injuries. (Tr. 277.) She
amended her alleged onset of disability date from June 15, 2020, to December 4, 2020. (Tr. 12.)
The ALJ denied Azar’s claim and the Appeals Council denied her claim for review. (Tr. 94–103,
106–13.) Thus, the ALJ’s decision stands as the final decision of the Commissioner. See 20 C.F.R.
§§ 404.981, 416.1481.
In this action, Azar claims the RFC is not supported by substantial evidence. (Doc. 10 at
1.) She argues three points of error. First, she argues that the ALJ did not assess the RFC in a
function-by-function manner regarding Azar’s inability to stand for more than six hours at a time.
Id. at 6. Second, she argues that the ALJ erred by finding that her mental impairments were nonsevere. Id. at 10. Third and finally, she argues that the ALJ improperly discounted her subjective
complaints about her symptoms. Id. at 13.
The ALJ’s Determination
The ALJ first found that Azar met the insured status requirements of the Social Security
Act through March 31, 2025. (Tr. 15.) Next, the ALJ found that Azar has not engaged in
substantial gainful activity since December 4, 2020, the amended alleged onset date. Id. The ALJ
concluded that Azar has the following severe impairments: degenerative changes to the cervical
and thoracic spine, and obesity. Id. He further found that Azar did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments. (Tr. 18.)

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As to Azar’s RFC, the ALJ stated:
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) with the following restrictions: the claimant is able to
occasionally reach overhead with the bilateral upper extremities. She can
occasionally climb ladders, ropes, or scaffolds, and can occasionally crawl.
(Tr. 19.)
The ALJ found that Azar was able to perform her past relevant work as a dispensing
optician and as a hand packager further noting “[t]his work does not require the performance of
work-related activities precluded by the claimant’s residual functional capacity.” (Tr. 22.) He
therefore concluded that Azar was not under a disability, as defined in the Social Security Act,
from December 4, 2020, through the date of the decision. (Tr. 23.) The ALJ’s final decision
reads as follows:
Based on the application for a period of disability and disability
insurance benefits protectively filed on December 3, 2020, the
claimant is not disabled as defined in sections 216(i) and 223(d) of
the Social Security Act.
Based on the application for supplemental security income
protectively filed on December 3, 2020, the claimant is not
disabled under section 1614(a)(3)(A) of the Social Security Act.
(Tr. 24.)
II.

Applicable Law

II.A. Standard of Review
The decision of the Commissioner must be affirmed if it is supported by substantial
evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401
(1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002). Substantial evidence is less than a
preponderance of the evidence, but enough that a reasonable person would find it adequate to
support the conclusion. Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This “substantial
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evidence test,” requires a more scrutinizing analysis than “than a mere search of the record for
evidence supporting the Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th
Cir. 2007) (internal quotation marks and citation omitted).
To determine whether the Commissioner’s decision is supported by substantial evidence
on the record as a whole, the Court must review the entire administrative record and consider:
1. The credibility findings made by the ALJ.
2. The plaintiff’s vocational factors.
3. The medical evidence from treating and consulting physicians.
4. The plaintiff’s subjective complaints relating to exertional and non-exertional activities
and impairments.
5. Any corroboration by third parties of the plaintiff’s impairments.
6. The testimony of vocational experts when required which is based upon a proper
hypothetical question which sets forth the claimant’s impairment.
Stewart v. Sec’y of Health & Hum. Servs., 957 F.2d 581, 585–86 (8th Cir. 1992) (internal citations
omitted). The Court must also consider any evidence that fairly detracts from the Commissioner’s
decision. Coleman, 498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999).
Even though two inconsistent conclusions may be drawn from the evidence, the Commissioner’s
findings may still be supported by substantial evidence on the record as a whole. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001) (citing Young v. Apfel, 221 F.3d 1065, 1068 (8th
Cir. 2000)). The reviewing court must affirm the administrative decision if it is supported by
substantial evidence on the record as a whole, even if the record could have supported an opposite
decision. Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992); see also Jones ex rel. Morris
v. Barnhart, 315 F.3d 974, 977 (8th Cir. 2003). Put another way, a court should “disturb the ALJ’s

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decision only if it falls outside the available zone of choice.” Papesh v. Colvin, 786 F.3d 1126,
1131 (8th Cir. 2015) (citation omitted).
II.B. Determination of Disability
A disability is defined as the inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be expected to result in
death or that has lasted—or can be expected to last—for a continuous period of not less than twelve
months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. § 416.905. A claimant has a
disability when the claimant is “not only unable to do his previous work but cannot, considering
his age, education and work experience, engage in any kind of substantial gainful work which
exists. . . in significant numbers in the region where such individual lives or in several regions of
the country.” 42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social Security
Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. § 416.920; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). First, the
Commissioner will consider a claimant’s work activity. If the claimant is engaged in substantial
gainful activity, then the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see “whether the claimant has a severe impairment that significantly limits the claimant’s
physical or mental ability to perform basic work activities.” Dixon v. Barnhart, 343 F.3d 602, 605
(8th Cir. 2003). “An impairment is not severe if it amounts only to a slight abnormality that would
not significantly limit the claimant’s physical or mental ability to do basic work activities.” Kirby,
500 F.3d at 707; see 20 C.F.R. §§ 416.920(c), 416.921(a).

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The ability to do basic work activities is defined as “the abilities and aptitudes necessary
to do most jobs.” 20 C.F.R. § 416.921(b); see also Id. § (b)(1)–(6) (enumerating the abilities and
aptitudes of basic work activities); Bowen v. Yuckert, 482 U.S. 137, 141 (1987). “The sequential
evaluation process may be terminated at step two only when the claimant’s impairment or
combination of impairments would have no more than a minimal impact on his ability to
work.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotation marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled, regardless
of age, education, and work experience. 20 C.F.R. § 416.920(a)(4)(iii), 416.920(d); see also Kelley
v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements”
of the claimant’s past relevant work. 20 C.F.R. §§ 416.920(a)(4)(iv), 416.945(a)(4). “RFC is a
medical question defined wholly in terms of the claimant’s physical ability to perform exertional
tasks or, in other words, what the claimant can still do despite his or his physical or mental
limitations.” Wright v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks
omitted); see also 20 C.F.R. § 416.945(a)(1). The claimant is responsible for providing evidence
that the Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner
is responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the claimant]
get medical reports from [the claimant’s] own medical sources.” 20 C.F.R. § 416.945(a)(3). The

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Commissioner also will consider certain non-medical evidence and other evidence listed in the
regulations. See id. If a claimant retains the RFC to perform past relevant work, then the claimant
is not disabled. Id. § 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC will not allow the claimant to perform past relevant work, then
the burden shifts to the Commissioner to prove that there is other work that the claimant can do
given the claimant’s RFC, age, education, and work experience. See Bladow v. Apfel, 205 F.3d
356, 358–59 n.5 (8th Cir. 2000). The Commissioner must prove both that the claimant’s RFC will
allow the claimant to make an adjustment to other work and that the other work exists in significant
numbers in the national economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20
C.F.R. § 416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in
significant numbers in the national economy, then the Commissioner will find that the claimant is
not disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will
find that the claimant is disabled. 20 C.F.R. § 416.920(a)(4)(v). At Step Five, even though the
burden of production shifts to the Commissioner, the burden of persuasion to prove disability
remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
The evaluation process for mental impairments is set forth in 20 C.F.R. §§ 404.1520a,
416.920a. The first step requires that the Commissioner “record the pertinent signs, symptoms,
findings, functional limitations, and effects of treatment” in the case record to assist in the
determination

of

whether

a mental

impairment exists. See 20

C.F.R.

§§

404.1520a(b)(1), 416.920a(b)(1). If it is determined that a mental impairment exists, the
Commissioner must indicate whether medical findings “especially relevant to the ability to work
are present or absent.” 20 C.F.R. §§ 404.1520a(b)(2), 416.920a(b)(2). The Commissioner must
then rate the degree of functional loss resulting from the impairments. See 20 C.F.R. §§

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404.1520a(b)(3), 416.920a(b)(3). Functional loss is rated on a scale that ranges from no limitation
to a level of severity which is incompatible with the ability to perform work-related activities. See
id. Next, the Commissioner must determine the severity of the impairment based on those
ratings. See 20 C.F.R. §§ 404.1520a(c), 416.920a(c). If the impairment is severe, the
Commissioner must determine if it meets or equals a listed mental disorder. See 20 C.F.R. §§
404.1520a(c)(2), 416.920a(c)(2). This is completed by comparing the presence of medical findings
and the rating of functional loss against the paragraph A and B criteria of the Listing of the
appropriate mental disorders. See id. If there is a severe impairment, but the impairment does not
meet or equal the listings, then the Commissioner must prepare an RFC assessment. See 20 C.F.R.
§§ 404.1520a(c)(3), 416.920a(c)(3).
III.

Discussion

As noted, Azar alleges that the RFC formulated by the ALJ was not supported by
substantial evidence. She claims that the ALJ erred in finding that her mental impairments were
not severe. More specifically, she argued that the ALJ did not properly evaluate the medical
opinion evidence and prior administrative medical findings. (Doc. 9 at 10-13.) Azar also claims
that the “ALJ failed to comply with SSR 16-3 p in that he rejected Azar’s subjective complaints
solely based on the objective medical evidence.” Id. at 13-15. Finally, Azar argues that “the ALJ
failed to provide an RFC in a function-by-function manner or explain how the record supported
finding that Azar had no limitation in her ability to stand or walk.” Id. at 6-10. The undersigned
will discuss Azar’s claims in turn, beginning with the ALJ’s evaluation of the opinion evidence.
A. Evaluation of Opinion Evidence
Azar first argues that the ALJ’s conclusion that her depression and panic disorders as

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non-severe is not supported by substantial evidence. She claims that although the ALJ
considered the supportability factor when evaluating the State agency opinions of Dr. Mark
Altomari and Dr. Steven Akeson, the ALJ did not articulate the consistency factor. (Doc. 10 at
11.) Azar raises the same claim of error for the ALJ’s conclusion that Dr. Brandt’s opinion was
unpersuasive. Id. at 11-12. She further argues that the ALJ’s reliance on her normal mental
status examinations, including “intact” memory and findings of “good attention span and
concentration” bore “no relation to [her] ability to sustain such activities over time.” Id. at 12.
Under the revised Social Security regulations, 2 the agency “[w]ill not defer or give any
specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s), including those from [the claimant’s] medical sources.” 20
C.F.R. §§ 404.1520c(a), 416.920c(b)(2). Instead, the ALJ must assess the persuasiveness of all
medical opinions and prior administrative medical findings 3 using a number of factors, including
1) the supportability of the opinion with objective medical evidence and explanations; 2) the
consistency of the opinion with evidence from other medical and nonmedical sources; 3) the
relationship of the provider to the claimant, including the length, nature and frequency of
treatment; 4) the specialization of the provider; and 5) other factors, including the source’s
familiarity with the Social Security guidelines. See 20 C.F.R. § 404.1520c.
In evaluating the persuasiveness of a medical opinion, the factors of supportability and
consistency are the most important for an ALJ to consider, and the ALJ must “explain how he

2

The new regulations are applicable to Foust’s claims because she filed her appeal after March
27, 2017. See 20 C.F.R. §§ 404.1520c, 416.920c.
3

“Prior administrative medical findings” are findings, other than the ultimate determination on
whether a claimant is disabled, about medical issues made by the consultants at a prior level of
review in the claimant’s current claim based on their review of the evidence. 81 Fed. Reg. at
62,564; 20 C.F.R. § 404.1513(a)(5) (2017).
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considered the supportability and consistency factors ... in [the] determination or decision.” 20
C.F.R. § 404.1520c(b)(2). An ALJ’s failure to address either the consistency or supportability
factor in assessing the persuasiveness of a medical opinion requires reversal. Bonnett v.
Kijakazi, 859 Fed. Appx. 19, 20 (8th Cir. 2021) (unpublished) (per curium) (citing Lucus v. Saul,
960 F.3d 1066, 1069-70 (8th Cir. 2020) (remanding where ALJ discredited physician’s opinion
without discussing factors contemplated in Regulation, as failure to comply with opinionevaluation Regulation was legal error)). ALJs need not explain in their decision how they
considered the other factors. 20 C.F.R. § 404.1520c(b)(2).
A.1. Mental Impairments are not Severe
On March 17, 2021, Dr. Altomari summarized Azar’s psychiatric records. (Tr. 64.) He
noted that Azar was prescribed Sertraline for depression and that all mental status examinations
were normal, more specifically, Azar was alert and cooperative with normal mood and affect. In
September of 2020, Azar sought emergent medical care for chest pain. She was cleared cardiovascularly and diagnosed with a panic attack. Azar was seen by a psychiatrist, and she
mentioned suicidal ideation without a plan. Azar reported that she had these thoughts off and on
for roughly 35 years, since she was 19. Azar noted that she never acted on such thoughts
“Because God put [her] here for a purpose.” (Tr. 64.) It was noted that Azar “is very religious
and actual suicide is simply out of the question.” Id. As to mental status examinations, the
following summary was provided:
[Azar] is very friendly and forthcoming. She seems quite down-to-earth. Not a
hint of sadness or depression. Affect is wholly appropriate. Thought processes
are integrated and free of any racing, blocking or looseness of association. She
has not psychotic symptoms, such as command hallucinations telling her to harm
herself, delusions, ideas of reference etc. Speech is of normal rate and volume,
without dysarthria, prosody or pressure. Cognitive functions are intact and insight
and judgment likewise. She flatly denies any formal suicidal or homicidal intent
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or plan.
Id. As to activities of daily living, the record reflects that Azar reported:
Difficulty concentrating and she sometimes forgets what she is doing. She can
only pay attention 10 minutes, doesn’t finish what she starts, needs help following
a recipe, and she cannot handle stress. However, she is able to cook for 1 hour, go
out alone, drive, shop, pay bills, use a checkbook, read, watch movies for 3 hours,
socialize, and she completed her forms in great detail.
Id. Dr. Altomari concluded that Azar had only mild limitation in concentration, persistence, and
maintaining pace, and no limitation in the other functional areas. (Tr. 64, 71.)
At the reconsideration level, Dr. Akeson considered a mental examination (Tr. 81, 89,
896-900) that was conducted by John Randall Brandt, Ph.D., Licensed Clinical Psychologist, on
May 20, 2021. Dr. Brandt noted that Azar arrived on time, and she was wearing clean, casual
clothing. She made appropriate eye contact; was alert and oriented times three; and was amiable
and well-mannered. Azar was euthymic and her affect was appropriate to content although it
was noted she teared up a couple of times. She was not overtly anxious and was easily engaged.
Her speech was normal. Azar scored 25/30 on the Montreal Cognitive Assessment (MoCA) 4,
which was just outside of the normal range. (Tr. 899.) Azar was diagnosed with persistent
depressive disorder with Somatic Symptom Disorder, primarily pain, and intermittent major
depressive episodes, not currently. See Tr. 81, 89; 899.
Additional notes concerning Azar’s activities of daily living at the reconsideration level
included that she noted trouble with memory and completing tasks. (Tr. 81, 89.) She selfreported not handling stress well. Id. Dr. Akeson observed that these statements were seen as
4

Severity levels for MOCa are assessed as follows: 18-25 = mild cognitive impairment, 10-17=
moderate cognitive impairment and less than 10= severe cognitive impairment. However,
research for these severity ranges has not been established yet. See https://mocacognition.com/
faq/ (emphasis added), last visited on March 26, 2024.
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“partially consistent” in that Azar takes care of pets, has no trouble with personal care, prepares
simple meals, does dishes and mow the lawn, drives, goes out alone, and shops. Id.
Furthermore, Dr. Akeson noted that Azar reported no trouble with money, can read, and watches
movies. Id. It was noted that Azar prefers written instructions over spoken instructions so that
she can refer to them; and that Azar was not seeking treatment with a counselor. There was no
recent emergent/inpatient treatment for mental impairment. Id. After considering the additional
information, Dr. Akeson concluded that Azar had only mild limitation in concentration,
persistence, and maintaining pace, and no limitation in the other functional areas. (Tr. 80, 88.)
The ALJ analyzed the broad functional areas of mental functioning set out in 20 C.F.R.,
Part 404, Subpart P, Appendix 1, known as the “paragraph B” criteria. The ALJ recited that
Azar alleges limitations in the first functional area as to her memory although the ALJ found no
limitation in this area. In making this conclusion, he relied on the normal examination findings
by Dr. Kindall on July 17, 2021 (Tr. 907 5), a Clinical Assessment by Dr. Jodi Dancer at Ozarks
Healthcare on November 15, 2021 (Tr. 942 6), and a Psychiatric Evaluation by Dr. Christine
Carrejo of OZH Behavioral Health on March 31, 2022 (Tr. 972 7).
In the next functional area of interacting with others, the ALJ stated that Azar reports a
good ability to get along with authority and found no limitations. Azar does not challenge this
finding.

5

Dr. Kindall noted Azar’s “memory was normal and concentration good.” (Tr. 907.)
Dr. Dancer’s mental status examination assessed Azar’s cognitive functioning as follows,
“good concentration, memory intact and oriented,” and her attention/concentration was noted as
“good (on-task 90%).” (Tr. 942.)
7
Dr. Carrejo noted that Azar’s memory was “intact for recent and remote events.” (Tr. 972.) Dr.
Carrejo observed that Azar was cooperative, related well to the examiner, her thought process
was “linear, logical, and goal directed,” and her insight and judgment were “deemed to be good
given the recognition of problems and desire for treatment.” Id.
6

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As to the third functional area—concentrating, persisting, or maintaining pace—the ALJ
noted Azar alleges problems with concentration and completing tasks. The ALJ observed that
“[t]he claimant’s mental impairments, in combination with pain from her physical conditions,
may result in some distractibility.” (Tr. 17.) Thus, he found the evidence supported mild
limitation in concentrating, persisting, or maintaining pace. He noted that Azar “has been
observed to have good attention span and concentration.” Id. This is supported by the findings
of Drs. Kindall, Dancer, and Carrejo in footnotes five through six herein.
Finally, the ALJ found no limitation in the fourth functional area of adapting and
managing oneself. He noted that Azar had only two hospitalizations due to situational stressors
in her life, but no episodes of significant psychological decompensation or inpatient psychiatric
treatment during the period of adjudication. The ALJ added that Azar “is the primary caregiver
for her disabled husband and reports a generally good ability to manage her day-to-day affairs.”
Id.
Dr. Brandt examined Azar on May 20, 2021, and concluded that she should be limited to
simple work. He concluded that Azar is “able to understand, remember, and carry out simple
instructions. She is vulnerable to forgetting, perhaps due to the pain and/or gabapentin. She
might need to establish systems of control to make sure she has not forgotten important tasks.”
(Tr. 899.) Dr. Brandt noted that except during acute exacerbations of pain, Azar is able to
concentrate, persist, and keep pace. He further indicated she has the ability to interact effectively
in work situations as she is a “nice, long-suffering person.” Id. Dr. Brandt further opined that
Azar “appears to have intact capacity to adapt to changes in simple work situations.” Id. It
appears that Dr. Brandt’s determination that Azar should be limited to simple work was based on
her MoCA score of 25, which is just outside the range of normal. It is worth noting that although

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Dr. Akeson was aware of Azar’s MoCA score of 25, he concluded that Azar was only mildly
limited in concentration, persistence, and maintaining pace. See Tr. 80-81, 88-89.
In his opinion, the ALJ concluded, in relevant part:
State agency psychological consultants Mark Altomari, Ph.D., and
Steven Akeson, Psy.D., both concluded that the claimant’s mental
impairments are non-severe. These prior administrative medical
findings are persuasive, as they are well-supported by the
claimant’s treatment records and mental status findings.
The opinion of consulting psychologist John Brandt, Ph.D., is not
persuasive. Dr. Brandt’s opinion that the claimant is limited to
simple work is not consistent with the mental status examinations
performed by her treatment providers, who have found intact
memory, attention span, and concentration with no significant
cognitive deficits.
(Tr. 22, citations omitted.)
Dr. Altomari completed the Disability Determination Explanations (DDEs) for DS and
DIB at the initial level on March 23, 2021. (Tr. 62-65 and Tr. 69-72, respectively.) He
concluded that Azar had a single mental limitation in the third functional area and rated it
“mild.” (Tr. 64, 71.) The DDEs further noted that the total evidence supports a non-severe
medically determinable impairment, id., and that no mental residual functional capacity
adjustments were associated with the claim. (Tr. 67, 74.) The DDEs further provide that
“[t]here is no indication that there is a medical opinion from any medical source.” (Tr. 65, 72.)
Dr. Akeson completed the DDEs for DS and DIB at the reconsideration level on August
2, 2021. (Tr. 78-81 and Tr. 86-89, respectively.) Dr. Akeson also concluded that Azar had a
single mental limitation in the third functional area and rated it “mild.” (Tr. 80-81, 88-89.) The
reconsideration DDEs further note that the total evidence supports a non-severe medically
determinable impairment (Tr. 81, 89), and that no mental residual functional capacity
adjustments were associated with the claim (Tr. 83, 91).
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In sum, the ALJ’s determination at step 3 that Azar’s mental impairments are non-severe
is supported by substantial evidence.
A.2. Physical Impairments
Azar complains that the ALJ focused on the objective medical evidence rather than her
subjective reports, which “blinded him [from] the consistency” of Azar’s claims related to her
activities of daily living, along with her treatment for neck pain including consultation with Dr.
Armene, prescription for Gabapentin and referral to physical therapy, followed by two cervical
epidural steroid injections based on Azar’s reported pain level of 7 out of 10. See Doc. 10 at 1415.
As to Azar’s physical impairments, the ALJ concluded that there is no evidence her
hypertension nor hyperlipidemia, dysphagia or gastropathy, diabetes, or asthma result in any
limitations in Azar’s work-related functional abilities. (Tr. 15-16.) Azar does not challenge
these findings.
The ALJ also found that “[i]n the absence of any objective evidence of shoulder
pathology, [he is] unable to find that the claimant has a medically determinable shoulder
impairment.” (Tr. 18.) He observed that there is no imaging of Azar’s shoulder, plus physical
examination found no abnormalities. On July 17, 2021, Dr. Martin found that Azar has full
range of motion in both shoulders. (Tr. 910.)
The ALJ observed that Azar has a longstanding history of cervical disc disease dating
back to a C5-6 fusion surgery in 1994. (Tr. 21.) On August 27, 2020, Azar saw Dr. Chiazo S.
Amene, and complained she had been experiencing right arm numbness for four months. (Tr.
349.) She described the pain as running from her ear to her fingertips. She rated the pain as a 7
out of 10. Id. On physical examination, Dr. Amene observed that Azar was a healthy appearing

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female. As to musculoskeletal findings, Dr. Amene noted that Azar had palpable pain over the
cervical spine vertebra, 5/5 muscle strength in the bilateral deltoids, biceps, triceps, wrist
extensors, hand intrinsics, iliopsoas, quadriceps, tibialis anterior, gastrocnemius and extensor
hallicus longus without exception; muscle tone in both the upper and lower extremities was
within normal limits; normal gait; and negative straight leg raise negative on the bilateral. Dr.
Amene’s neurological findings included that Azar was alert, oriented to time, place, and person;
cranial nerves are grossly intact; normal sensation to light touch and pinprick throughout the
bilateral upper and lower extremities in all dermatomal distributions without exception; deep
tendon reflexes are 1-2/4 and equal throughout the bilateral upper and lower extremities; and
great toes are downgoing bilateral without clonus. Dr. Amene concluded that Azar suffers from
degenerative disc disease with right upper extremity numbness and diagnosed her with previous
acquired fusion at C5-6, spinal stenosis with mild cord compression at C3-4 and C4-5, further
observing that mild cord edematous changes appear to be present; and bilateral foraminal
stenoses at C4-5. (Tr. 352-353.) Based on the “complexity” of Azar’s problems, Dr. Armene
recommended a trial of conservative management, addition of Gabapentin and NSAIDs, as well
as referral to physical therapy. (Tr. 353.)
On July 17, 2021, Azar was examined by State agency consultant Kindall Martin, D.O.
(Tr. 905-912.) Azar reported a history of asthma since she was an infant and noted that exertion
contributes to her breathing problems. (Tr. 905.) Azar indicated that she was diagnosed with
high blood pressure and cholesterol in 2016, and that she has been using medication for the
condition since 2017. Id. Azar claimed that she suffered headaches twice monthly and blurry
vision although no hospitalizations; and that those symptoms negatively impacted her ability to
work. Id. Azar added that she suffered from depression since childhood and was diagnosed with

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depression in 2018, secondary to situational stressors related to money issues, marital issues, and
life. Id. At the time of the exam, Azar had been unemployed from her job as a cashier since
November of 2020. (Tr. 906.) She was married with three children. Her daily activities
consisted of watching TV, reading, caring for her dogs, and eating. Id. Azar reported her
functional limitations due to her back and knee pain as sitting 15 minutes, standing 30 minutes,
walking 2 blocks, and lifting and carrying 5 pounds repetitively and 15 pounds occasionally.
(Tr. 906.)
The ALJ found that Azar had recurrent neck pain and right arm numbness and exhibited
decreased cervical range of motion and tenderness to palpation. (Tr. 21, citing 349, 352, 908.)
On August 14, 2020, she underwent an MRI of her cervical spine. The ALJ noted that the results
showed spinal stenosis with mild cord compression at [C3-4] and C4-5, as well as bilateral
neuroforaminal stenoses at C4-5. (Tr. 21.) The MRI results also showed that Azar was
diagnosed with “[r]adiculopathy, unspecified spinal region; [c]ervical radiculopathy; parathesia
of right arm; and [c]ervical vertebral fusion.” (Tr. 462-463, emphasis added.) In concluding that
electrodiagnostic testing has found no evidence of cervical radiculopathy, the ALJ cited a later,
normal EMG and NCV study from December 16, 2020, showing “no electrodiagnostic evidence
of neuropathy, plexopathy or radiculopathy in right arms.” (Tr. 21, citing Tr. 356; emphasis
added.) He also cited Dr. Armene’s August 27, 2020, findings and Dr. Tindall’s July 17, 2021,
findings that Azar had normal strength in both upper extremities, preserved manual dexterity in
both hands, and did not exhibit any sensory deficits in her upper extremities. (Tr. 356, 907-908,
910.) Although the ALJ failed to acknowledge the presence of cervical radiculopathy, the error
is harmless as he considered Azar’s neck pain in formulating the RFC.

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The ALJ also found that Azar’s thoracic spine shows mild to moderate disc degeneration,
decreased range of motion in her back, as well as mild difficulty squatting and arising from a
seated position. (Tr. 21.) On the other hand, he noted positive findings including that Azar
walks with a normal gait and station, without the need for an assistive device; she can walk on
her heels and toes with ease and performs tandem walking normally; she is able to hop on one
foot bilaterally; she exhibits no sensory, motor, or reflex deficits in her lower extremities; and
bilateral straight leg testing was negative. Id.
Furthermore, the ALJ considered the fact that Azar exhibited tenderness in her left knee
to palpation and decreased range of motion in the joint, and concluded that could be “due to, or
at least exacerbated by, her weight.” Id. He stated, “[t]he effects of the claimant’s obesity have
been considered in determining her residual functional capacity.” Id.
The ALJ then found that in considering the entire record, “despite her impairments,
[Azar] retains the ability to perform light exertional work” consistent with his RFC assessment.
(Tr. 22.) He added that the light exertional work finding was based, in part, on his conclusion
that State agency consultants, Drs. Jane Murray and Judee Bland, were generally persuasive.
Adding that he “adopted additional postural and manipulative limitations to ensure that” Azar’s
“neck, back, right arm, and left knee pain are fully accommodated.” Id.
The undersigned finds that the ALJ properly evaluated the opinion evidence as to Azar’s
physical impairments. Although Azar argues otherwise, she does not identify any medical
opinions that are contrary to the ALJ’s findings. The ALJ explained how he addressed the
supportability and consistency factors regarding the State Agency consultants and treatment
provider opinions, as discussed above. The ALJ pointed to specific evidence demonstrating that

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the record did not support the presence of more than mild limitations in concentration, or that
Azar had memory problems.
The ALJ found that Drs. Murray and Bland’s findings as to Azar’s physical impairments
were “generally persuasive.” (Tr. 22.) Because the ALJ found greater limitations resulting from
Azar’s physical impairments than those found by Drs. Murray and Bland’s, any error resulting
from the ALJ’s evaluation of these opinions was harmless.
B.

Subjective Complaints
Azar argues that the ALJ failed to properly evaluate her subjective reports related to her

neck and arm pain, that she was limited to lifting five pounds along with her treatment for neck
and arm pain; and he failed to consider her activities of daily living.
As an initial matter, Social Security Ruling 16-3p 8 eliminated the word “credibility” from
the analysis of subjective complaints, replacing it with “consistency” of a claimant’s allegations
with other evidence. SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017); 20 C.F.R. §§ 404.1529.
The Rule incorporates the familiar factors from Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984) that previously guided an ALJ’s analysis of subjective complaints, including: objective
medical evidence, the claimant’s work history, and other evidence relating to (1) the claimant’s
daily activities; (2) the duration, frequency and intensity of the symptoms (i.e., pain); (3)
precipitating and aggravating factors; (4) the dosage, effectiveness and side effects of
medication; and (5) any functional restrictions. See Schwandt v. Berryhill, 926 F.3d 1004, 1012
(8th Cir. 2019). If the evidence as a whole “undermines” or “cast[s] doubt on” a claimant’s
testimony, an ALJ may decline to credit a claimant’s subjective complaints. Id.

The revised Ruling became effective on March 27, 2017. It applies to determinations or
decisions made by the Social Security Administration on or after March 28, 2016.
8

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The ALJ is not mechanically obligated to discuss each of the above factors, however,
when rejecting a claimant’s subjective complaints, the ALJ must make an express determination
detailing his or her reasons for discrediting the testimony, and the ALJ’s assessment must be
based on substantial evidence. Vick v. Saul, No. 1:19 CV 232 CDP, 2021 WL 663105, at *8
(E.D. Mo. Feb. 19, 2021) (citing Renstrom v. Astrue, 680 F.3d 1057, 1066 (8th Cir. 2012); GrbaCraghead v. Astrue, 669 F. Supp. 2d 991, 1008 (E.D. Mo. 2009)). On review by the court,
“[c]redibility determinations are the province of the ALJ.” Nash v. Comm’r, Soc. Sec. Admin.,
907 F.3d 1086, 1090 (8th Cir. 2018) (quoting Julin v. Colvin, 826 F.3d 1082, 1086 (8th Cir.
2016)). The court defers to the ALJ’s determinations “as long as good reasons and substantial
evidence support the ALJ's evaluation of credibility.” Id.
The ALJ summarized Azar’s testimony regarding her limitations as follows, in relevant
part:
The claimant alleges that she is disabled due to physical and mental impairments.
She testified that she suffers from chronic neck and left knee pain that limits her
abilities to stand and walk. She stated she can only stand for about 15 minutes at
a time and is unable to walk more than 2 blocks due to pain. She testified that she
cannot lfit more than about 5 pounds. The claimant reported that she has pain and
a tingling sensation that radiates down her right arm. She stated that this makes it
difficult to use her right hand and indicated that she is prone to dropping things.
Regarding her mental impairments, the claimant testified that she struggles with
depression and passive suicidal ideation. She indicated that she also experiences
panic attacks. The claimant testified that she has memory problems and tends to
forget things unless she writes them down.
(Tr. 20.)
The ALJ determined that, although Azar’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, her statements regarding the intensity,
persistence, and limiting effects of those symptoms were not entirely consistent with the medical

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evidence and other evidence in the record. Id. The Court finds that the ALJ appropriately
considered Azar’s subjective allegations.
C. RFC and Ability to Perform Past Relevant Work
A claimant’s RFC is the most she can do despite her physical or mental limitations.
Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004). It is the ALJ’s responsibility to
determine a claimant’s RFC by evaluating all medical and non-medical evidence of record. 20
C.F.R. §§ 404.1545, 404.1546, 416.945, 416.946. Some medical evidence must support the
ALJ’s RFC finding, but there is no requirement that the evidence take the form of a specific
medical opinion from a claimant’s physician. Myers v. Colvin, 721 F.3d 521, 526-27 (8th Cir.
2013); Perks v. Astrue, 687 F.3d 1086, 1092-93 (8th Cir. 2012); Martise v. Astrue, 641 F.3d 909,
927 (8th Cir. 2011). “The determination of a claimant’s RFC during an administrative hearing is
the ALJ’s sole responsibility and is distinct from a medical source’s opinion.” Wallenbrock v.
Saul, No. 4:20-CV-00182-SRC, 2021 WL 1143908, at *6 (E.D. Mo. Mar. 25, 2021) (citing
Kamann v. Colvin, 721 F.3d 945, 950-51 (8th Cir. 2013)).
The record supports the ALJ’s finding that Azar’s physical conditions warrant some
restrictions. (Tr. 21-22.) He discussed the medical evidence regarding Azar’s physical
impairments and concluded that despite her impairments, she retains the ability to perform light
exertional work that is consistent with his RFC that limited her to occasional reaching overhead
with the bilateral extremities and occasional climbing of ladders, ropes, or scaffolds, and can
occasionally crawl. (Tr. 19.) The ALJ did not err in making this finding.
As argued by the Commissioner, Azar’s claim that the ALJ did not assess her RFC on a
function-by-function basis and specifically discuss her ability to stand and walk, is meritless.
(Doc. 11 at 10.) Azar’s argument that the ALJ did not properly consider her limitations in
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standing and walking has been rejected by not only the Eighth Circuit, but by this Court and other
district courts which have repeatedly heard variations of the same argument. See Ellis v.
Kijakazi, No. 1:21-CV-94-SNLJ, 2022 WL 4464806, at *6 (E.D. Mo. Sept. 26, 2022) (citing
Nash v. Comm’r, Soc. Sec. Admin., 907 F.3d 1086, 1090-91) (The ALJ’s “failure to mechanically
list and reject every possible limitation is not error.”); see also Menter v. Kijakazi, No.
620CV003198DGKSSA, 2022 WL 188146, at *2 (W.D. Mo. Jan. 20, 2022) (collecting Eighth
Circuit and district court cases rejecting this argument). In finding Plaintiff could perform light
work with additional postural limitations, the ALJ clearly found Azar could perform the standing
and walking definitionally required by “light work” as that term is defined in agency regulations.
See 20 C.F.R. §§ 404.1567(b), 416.967(b); Security Ruling (SSR) 83-10 (“[T]he full range of
light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8hour workday.”).
While the Vocational Expert’s (VE’s) testimony during the administrative hearing became
“a little bit muddled,” as noted by the ALJ (Tr. 56), the ALJ was aware that Azar could not perform
her past relevant work as actually performed. The ALJ found that Azar is capable of performing
past relevant work as a Dispensing Optician and as a Hand Packager, however, further noted “[t]his
work does not require the performance of work-related activities precluded by the claimant’s
residual functional capacity (20 CFR 404.1565 and 416.965).” (Tr. 22.) As discussed above light
work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour
workday; and the ALJ included physical limitations in the RFC.
It is the ALJ’s role to evaluate the record in its entirety, including medical opinions and
testimony, and formulate a claimant’s RFC based on all the relevant, credible evidence of record.
See Perks, 687 F.3d at 1092. This is precisely what the ALJ did in this case. The ALJ’s mental

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and physical RFC determinations are supported by substantial evidence on the record as a whole.
In his discretion, the ALJ made an RFC finding that did not precisely reflect any of the medical
opinions of record. See Martise, 641 F.3d at 927 (ALJ is not required to rely entirely on one
particular physician’s opinion or choose between opinions). The RFC is consistent with or more
restrictive than all of the medical opinion evidence and prior administrative findings. Thus, Azar
has failed to demonstrate that the ALJ’s decision was outside the available “zone of choice.”
Accordingly, Judgment will be entered separately in favor of Defendant in accordance
with this Memorandum.
Dated this 27th day March, 2024.
s/Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE

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