Fischer v. Colvin

Filing 19

MEMORANDUM AND ORDER re: 17 SOCIAL SECURITY CROSS BRIEF re 13 SOCIAL SECURITY BRIEF filed by Defendant Carolyn W. Colvin, 13 SOCIAL SECURITY BRIEF filed by Plaintiff Laura Fischer. Judgment will be entered separately in favor of Defendant in accordance with this Memorandum. Signed by Magistrate Judge Abbie Crites-Leoni on 3/25/16. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
LAURA FISCHER,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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) Case No. 2:14 CV 104 ACL
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MEMORANDUM AND ORDER
Plaintiff Laura Fischer brings this action pursuant to 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 Fischer’s multiple severe
impairments, she was not disabled as she had the residual functional capacity (“RFC”) to perform
jobs that exist in significant numbers in the national economy.
This matter is pending before the undersigned United States Magistrate Judge, with
consent of the parties, pursuant to 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.
I. Procedural History
On January 24, 2012, Fischer filed applications for DIB and SSI, claiming that she became
unable to work due to her disabling condition on July 20, 2011. (Tr. 157-69). Fischer’s claims
were denied initially. (Tr. 101-06.) Following an administrative hearing, Fischer’s claims were
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denied in a written opinion by an ALJ, dated August 14, 2013. (Tr. 11-23.) Fischer then filed a
request for review of the ALJ’s decision with the Appeals Council of the Social Security
Administration (SSA), which was denied on September 5, 2014. (Tr. 1-5.) Thus, the decision of
the ALJ stands as the final decision of the Commissioner. See 20 C.F.R. '' 404.981, 416.1481.
In the instant action, Fischer claims that the ALJ erred in determining Fischer’s mental
RFC. Fischer also argues that the ALJ erred in failing to develop the record regarding Fischer’s
physical RFC.
II. The ALJ=s Determination
The ALJ found that Fischer met the insured status requirements of the Social Security Act
through December 31, 2016, and that she has not engaged in substantial gainful activity since her
alleged onset date of July 20, 2011. (Tr. 13.)
In addition, the ALJ concluded that Fischer had the following severe combination of
impairments: disc protrusion at L4-L5, bilateral foraminal stenosis1 at L5-S1, chronic obstructive
pulmonary disease (“COPD”), moderate one-vessel coronary disease,2 depression, posttraumatic
stress disorder (“PTSD”), and a history of polysubstance abuse. Id. The ALJ found that Fischer
did not have an impairment or combination of impairments that meets or equals in severity the
requirements of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 14.)
As to Fischer’s RFC, the ALJ stated:
After careful consideration of the entire record, the undersigned
finds that the claimant has the Residual Functional Capacity to

1

The narrowing of the opening between two vertebrae through which nerves pass. Stedman’s
Medical Dictionary, 756, 1832 (28th Ed. 2006).
2

Narrowing of the lumen of one of the coronary arteries, usually due to plaque buildup in the
coronary arteries. Stedman’s at 554.  
Page 2 of 26 

perform light work as defined in 20 CFR 404.1567(b) and
416.967(b). She needs to alternate between sitting and standing
positions for brief periods of time not to exceed a few minutes while
remaining at her workstation with little or no loss of production; can
occasionally climb ramps and stairs, but never climb ladders, ropes,
or scaffolds; can occasionally stoop, kneel, crouch, and crawl;
should avoid frequent exposure to vibration and hazards, such as
dangerous machinery and unprotected heights; is limited to simple
routine work, which is defined as unskilled within the meaning of
the Dictionary of Occupational Titles; and can tolerate occasional
contact with supervisors, co-workers, and the general public.
(Tr. 16.)
The ALJ found that Fischer’s allegations regarding her limitations were not entirely
credible. (Tr. 17.) In determining Fischer’s mental RFC, the ALJ indicated that she was
assigning “great weight” to the opinion of treating psychiatrist F. Perez-Magnelli, M.D., and
“partial weight” to state agency psychologist Stanley Hutson, and consultative psychologist
Patrick Finder. (Tr. 19-20.) With regard to Fischer’s physical RFC, the ALJ stated that she was
according partial weight to the opinion of non-examining state agency physician Jack Bankhead,
M.D. (Tr. 19.)
The ALJ further found that Fischer was unable to perform any past relevant work. (Tr.
21.) There were other jobs, however, that exist in significant numbers in the national economy
that Fischer could perform. Id. The ALJ therefore concluded that Fischer has not been under a
disability, as defined in the Social Security Act, from July 20, 2011, 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 7, 2011, the
claimant is not disabled under sections 216(i) and 223(d) of the
Social Security Act.
Page 3 of 26 

Based on the application for supplemental security income
protectively field on December 7, 2011, the claimant is not disabled
under section 1614(a)(3)(A) of the Social Security Act.
(Tr. 23.)
III. Applicable Law
III.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
evidence test,” however, is “more 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). “Substantial evidence on the record as a whole . . .
requires a more scrutinizing analysis.” Id. (internal quotation marks and citations 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
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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. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (internal
citations omitted). The Court must also consider any evidence which fairly detracts from the
Commissioner’s decision. Coleman, 498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047, 1050
(8th Cir. 1999). However, 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)). “[I]f there is substantial evidence on the record as a
whole, we must affirm the administrative decision, even if the record could also have supported an
opposite decision.” Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
marks and citation omitted). See also Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 977 (8th
Cir. 2003).
III.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 which 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 other kind of substantial gainful
work which exists … in significant numbers either in the region where such individual lives or in
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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).
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). These abilities and aptitudes include (1) physical
functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and
remembering simple instructions; (4) use of judgment; (5) responding appropriately to
supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work
setting. Id. § 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 2291
(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 her ability to work.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotation
marks omitted).

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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 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 her physical or mental
limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks
omitted); see 20 C.F.R. § 416.945(a)(1). The claimant is responsible for providing evidence 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 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 as determined in Step Four 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 as determined at Step Four, and his or her

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age, education, and work experience. See Bladow v. Apfel, 205 F.3d 356, 358-59 n.5 (8th Cir.
2000). The Commissioner must prove not only that the claimant’s RFC will allow the claimant to
make an adjustment to other work, but also 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 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 the Commissioner to Arecord 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 Aespecially 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 in four areas deemed essential to work: activities
of daily living, social functioning, concentration, and persistence or pace. See 20 C.F.R. ''
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

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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).
IV. Discussion
As noted above, Fischer argues that the ALJ erred in determining both her physical and
mental RFC.
Residual functional capacity is defined as that which a person remains able to do despite
her limitations. 20 C.F.R. § 404.1545(a), Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001). The
ALJ must assess a claimant’s RFC based upon all relevant, credible evidence in the record,
including medical records, the observations of treating physicians and others, and the claimant’s
own description of her symptoms and limitations. 20 C.F.R. § 404.1545(a); Anderson v. Shalala,
51 F.3d 777, 779 (8th Cir. 1995); Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005). A
claimant’s RFC is a medical question, and there must be some medical evidence, along with other
relevant, credible evidence in the record, to support the ALJ’s RFC determination. Id.; Hutsell v.
Massanari, 259 F.3d 707, 711–12 (8th Cir. 2001); Lauer, 245 F.3d at 703–04; McKinney v. Apfel,
228 F.3d 860, 863 (8th Cir. 2000). An ALJ’s RFC assessment which is not properly informed and
supported by some medical evidence in the record cannot stand. Hutsell, 259 F.3d at 712.
However, although an ALJ must determine the claimant’s RFC based upon all relevant evidence,
the ALJ is not required to produce evidence and affirmatively prove that a claimant is able to
perform certain functions. Pearsall, 274 F.3d at 1217 (8th Cir. 2001); McKinney, 228 F.3d at

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863. The claimant bears the burden of establishing her RFC. Goff, 421 F.3d at 790.
1.

Mental RFC
Fischer argues that the ALJ erred in assigning “great weight” to the opinion of treating

psychiatrist Dr. Perez-Magnelli, but not including all of the limitations found by Dr.
Perez-Magnelli in Fischer’s RFC.
In determining Fischer’s mental RFC, the ALJ stated that Fischer has a longstanding
history of depression and anxiety, for which she has utilized a combination of therapy and
psychotropic medications, including Lexapro3 and Celexa.4 (Tr. 18, 388-89, 586-610.) The
ALJ stated that Fischer’s mental impairments are amenable to routine, conservative treatment.
Id. As support, the ALJ noted that upon mental status examination, Fischer has presented with
only very transient, mild to moderate symptoms, including psychomotor agitation, an anxious or
irritable mood, a blunted affect, and limited insight into her illness. (Tr. 18, 586-610.) She
stated that Fischer’s mental status examinations have otherwise failed to yield any objectively
abnormal medical signs reasonably consistent with Fischer’s allegations, such as symptoms of
panic, anger, or uncontrolled depression. Id. The ALJ acknowledged that Fischer sought
treatment for suicidal ideation in January 2013, but noted that Fischer was only observed for
twenty-four hours before she was released. (Tr. 18, 550-51.) The record supports the ALJ’s
findings.
The ALJ next discussed Dr. Perez-Magnelli’s opinion. Dr. Perez-Magnelli completed a
Medical Source Statement-Mental on May 31, 2013. (Tr. 583-84.) Dr. Perez-Magnelli
expressed the opinion that Fischer was moderately limited in the following areas: the ability to

3

Lexapro is indicated for the treatment of depression and anxiety. See WebMD,
http://www.webmd.com/drugs (last visited March 10, 2016).
4
Celexa is indicated for the treatment of depression. See WebMD,
http://www.webmd.com/drugs (last visited March 10, 2016).
Page 10 of 26 

maintain attention and concentration for extended periods; perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerances; work in coordination
with or proximity to others without being distracted by them; complete a normal workday and
workweek without interruption from psychologically based symptoms and perform at a consistent
pace without an unreasonable number and length of rest periods; accept instructions and respond
appropriately to criticism from supervisors; maintain socially appropriate behavior and adhere to
basic standards of neatness and cleanliness; respond appropriately to change in the work setting;
and set realistic goals or make plans independently of others. Id.
The ALJ stated that she was assigning “great weight” to the opinion of treating source Dr.
Perez-Magnelli because his opinion is based upon a lengthy treating relationship with Fischer, and
is consistent with the clinical findings gleaned therefrom. (Tr. 19.) The ALJ noted that Dr.
Perez-Magnelli documented Fischer presenting with only transient psychologically-based
symptoms, which were of mild to moderate severity. (Tr. 19, 586-610.) Dr. Perez-Magnelli
assessed GAF scores between 50 and 60. Id. The ALJ accurately noted that a GAF score of 51
to 60 is indicative of moderate symptoms of mental dysfunction or moderate impairment in
functioning.5 (Tr. 20.) The ALJ also found that Dr. Perez-Magnelli’s opinion was consistent
with Fischer’s self-reported daily activities, which revealed no more than moderate mental
limitations. (Tr. 19.) Specifically, the ALJ noted that Fischer is able to care for her personal
needs, perform routine household chores, prepare simple meals, care for her daughter, care for her

5

A GAF score of 51 to 60 denotes “[m]oderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-workers).” See American Psychiatric
Ass’n., Diagnostic and Statistical Manual of Mental Disorders 34 (Text Revision 4th ed. 2000)
(“DSM IV-TR”).  
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two grandchildren during part of the relevant period, watch television, read, walk for short
distances, visit with family and friends, and shop for groceries. (Tr. 15, 43-50.)
“‘It is the ALJ’s function to resolve conflicts among the various treating and examining
physicians.” Tindell v. Barnhart, 444 F.3d 1002, 1005 (8th Cir. 2006) (quoting Vandenboom v.
Barnhart, 421 F.3d 745, 749–50 (8th Cir. 2005) (internal marks omitted)). The opinion of a
treating physician will be given “controlling weight” only if it is “well supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] record.” Prosch v. Apfel, 201 F.3d 1010, 1012–13 (8th Cir. 2000).
The record, though, should be “evaluated as a whole.” Id. at 1013 (quoting Bentley v. Shalala, 52
F.3d 784, 785–86 (8th Cir. 1997)). The ALJ is not required to rely on one doctor’s opinion
entirely or chose between the opinions. Martise v. Astrue, 641 F .3d 909, 927 (8th Cir. 2011).
Additionally, when a physician’s records provide no elaboration and are “conclusory checkbox”
forms, the opinion can be of little evidentiary value. See Anderson v. Astrue, 696 F.3d 790, 794
(8th Cir. 2012). Regardless of the decision the ALJ must still provide “good reasons” for the
weight assigned the treating physician’s opinion. 20 C.F.R § 404.1527(d)(2).
The ALJ must weigh each opinion by considering the following factors: the examining and
treatment relationship between the claimant and the medical source, the length of the treatment
relationship and the frequency of examination, the nature and extent of the treatment relationship,
whether the physician provides support for his findings, whether other evidence in the record is
consistent with the physician's findings, and the physician's area of specialty. 20 C.F.R. §§
404.1527(c)(1)-(5), 416 .927(c)(1)-(5).
The undersigned finds that the ALJ provided sufficient reasons for assigning great weight
to Dr. Perez-Magnelli’s opinion. Fischer saw Dr. Perez-Magnelli approximately monthly from

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October 2010 through the date of his opinion in May 2013 for treatment and medication
management. (Tr. 586-610.) As such, Dr. Perez-Magnelli has a significant treatment history
with Fischer. As the ALJ noted, Dr. Perez-Magnelli noted only mild to moderate symptoms on
mental status examinations, such as a depressed or anxious mood (Tr. 591, 592, 600, 601, 602,
603, 607), or a blunted affect (Tr. 602) on some visits. Dr. Perez-Magnelli’s treatment notes,
therefore, are consistent with the presence of moderate limitations in some areas.
The ALJ next discussed the opinion of non-examining state agency psychologist Stanley
Hutson, Ph.D. (Tr. 19.) Dr. Hutson completed a Psychiatric Review Technique and Mental
Residual Functional Capacity Assessment on April 23, 2011. (Tr. 71-73, 76-77.) Dr. Hutson
expressed the opinion that Fischer was moderately limited in her ability to maintain attention and
concentration for extended periods, work in coordination with others without being distracted by
them, interact appropriately with the general public, accept instructions and respond appropriately
to criticism from supervisors, and get along with co-workers or peers without distracting them or
exhibiting behavioral extremes. (Tr. 76-77.)
The ALJ indicated that she was giving “partial weight” to the opinion of Dr. Hutson. (Tr.
19.) She stated that, as a state agency consultant, Dr. Hutson is familiar with the disability
determination process and has specialized training and expertise. (Tr. 20.) The ALJ stated that
Dr. Hutson’s opinion is consistent with the medical record and with Fischer’s self-reported daily
activities. Id. The ALJ accurately analyzed Dr. Hutson’s opinion. See 20 C.F.R. ''
404.1527(f)(2)(i), 416.927(f)(2)(i) (State agency medical consultants are highly qualified experts
in Social Security disability evaluation; therefore, ALJs must consider their findings as opinion
evidence).

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Finally, the ALJ discussed the opinion of consultative psychologist Patrick Finder. (Tr.
20.) Fischer saw Dr. Finder for a consultative psychological examination on April 23, 2012.
(Tr. 433-41.) Fischer reported a history of physical abuse by her ex-husband. (Tr. 440.) She
reported strong symptoms of depression and anxiety, difficulty being around people, and that she
easily begins to rage at people. Id. Fischer expressed concern that she would hurt someone
because of the severity of her anger. (Tr. 441.) Dr. Finder found that Fischer could not sustain a
forty-hour work week due to the severity of her anxiety and her range reactions to people. Id.
The ALJ gave “partial weight” to Dr. Finder’s opinion. (Tr. 20.) The ALJ stated that Dr.
Finder relied upon Fischer’s self-reported symptomology, much of which was not reported to her
treating sources. Id. The ALJ specifically noted that Fischer did not endorse uncontrollable rage
during her treatment sessions with Dr. Perez-Magnelli, but did when meeting with Dr. Finder.
The ALJ provided sufficient reasons for discrediting Dr. Finder’s opinion.
As to Fischer’s RFC, the ALJ limited Fischer to simple, routine, unskilled work; and only
occasional contact with supervisors, co-workers, and the general public. (Tr. 16, 21.) The ALJ
indicated that this determination is supported by Fischer’s treatment history, the weighed medical
opinion evidence, and her daily activities. (Tr. 21.)
Fischer argues that the ALJ erred in assigning great weight to Dr. Perez-Magnelli’s
opinion, yet failing to incorporate all the limitations found by Dr. Perez-Magnelli in Fischer’s
mental RFC. Fischer contends that the ALJ did not include any limitation concerning Fischer’s
deficit in pace, despite Dr. Perez-Magnelli’s opinion that Fischer had a moderate limitation in her
ability to complete a normal workday and workweek without interruptions from
psychologically-based symptoms and perform at a consistent pace without an unreasonable
number and length of rest periods.
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Fischer’s argument lacks merit. First, as previously noted, the ALJ was not required to
rely entirely on a particular physician’s opinion. See Martise, 641 F.3d at 927. In addition, the
ALJ did not assign “controlling weight” to Dr. Perez-Magnelli’s opinion, but instead afforded it
“great weight.” In assigning “great weight” to Dr. Perez-Magnelli’s opinion, the ALJ was not
obligated to adopt every opinion found by Dr. Perez-Magnelli. See Arif v. Colvin, No.
4:13CV-0442-DGK-SSA, 2014 WL 1790942, * 2 (W.D. Mo. May 6, 2014) (“[W]hile the ALJ did
give ‘great weight’ to Dr. Egea’s opinion, by giving it ‘great weight’ he was not required to accept
every limitation the doctor suggested”); McClure v. Colvin, No. 4:12CV 1763RWS, 2014 WL
824268, * 7 (E.D. Mo. Mar. 3, 2014) (same).
Fischer relies on Logan-Wilson v. Colvin, No. 4:13CV1119JAR, 2014 WL 4681459, *6
(E.D. Mo. Sept. 19, 2014), in which it was found that the ALJ did not properly account for the
claimant’s moderate limitation in her ability to perform at a consistent pace when he included a
limitation only to simple, non-detailed work. This case, however, is distinguishable. In
Logan-Wilson, the claimant was found to have severe impairments of learning disability in reading
and reading comprehension. 2014 WL 4681459, * 1. The ALJ gave “significant weight” to the
opinion of the state agency physician, who found the claimant was moderately limited in the
ability to perform at a consistent pace. Id. at * 5. The ALJ also assigned significant weight to the
opinion of a consultative psychologist who found that the claimant’s pace was “mildly slow.” Id.
at * 5. The Court found “based upon the totality of the evidence” that the ALJ did not properly
account for the claimant’s pace difficulties in the RFC, and directed the ALJ on remand to
re-evaluate the RFC with respect to the claimant’s pace limitation. Id. at 6.
In this case, unlike in Logan-Wilson, the state agency psychologist, Dr. Hutson, found that
Fischer was “not significantly limited” in her ability to perform at a consistent pace. (Tr. 76.) As

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previously noted, the ALJ accorded partial weight to Dr. Hutson’s opinion. (Tr. 19.) Thus, there
is medical evidence in the record supporting the ALJ’s decision not to include a limitation with
regard to pace in Fischer’s RFC.
In sum, the ALJ properly weighed the medical opinion evidence when determining
Fischer’s mental RFC. The ALJ accorded great weight to the opinion of treating psychiatrist Dr.
Perez-Magnelli, who found that Fischer had moderate limitations in several areas. Consistent
with the opinions of both Dr. Perez-Magnelli and Dr. Hutson that Fischer had moderate limitations
in her ability to maintain attention and concentration and with social interaction, the ALJ limited
Fischer to simple, routine work and only occasional contact with supervisors, co-workers, and the
general public. The ALJ’s decision not to include a limitation with regard to pace is supported by
Dr. Hutson’s opinion. Thus, the ALJ’s mental RFC is supported by substantial evidence on the
record as a whole.
2.

Physical RFC
Fischer next argues that the ALJ erred in failing to develop the record with regard to

Fischer’s physical RFC. Fischer contends that there was no evidence addressing Fischer’s
physical limitations resulting from her back impairment, and that the ALJ relied on her own
inferences in assessing her RFC.6
In determining Fischer’s physical RFC, the ALJ first discussed Fischer’s subjective
allegations of pain and limitation. Fischer testified that she experiences constant back pain,
which has worsened over the past five years. (Tr. 17, 55.) Fischer testified that she can walk for
only fifty feet before needing to stop and rest for up to ten minutes, can stand for thirty minutes at

6

The ALJ also found that Fischer’s COPD and one-vessel coronary disease were severe
impairments. Fischer’s argument regarding the ALJ’s physical RFC determination, however,
focuses on limitations arising from her back impairment. The Court will limit its discussion
accordingly.
Page 16 of 26 

a time, can sit for around ninety minutes at a time, can lift fifteen pounds, and needs to lie down
periodically during the day. (Tr. 17, 59.)
The ALJ found that Fischer’s allegations regarding her back pain are not reasonably
supported by the objective medical evidence of record. (Tr. 17.) The ALJ noted that a
December 22, 2011 MRI revealed the presence of a broad-based central disc protrusion at L4-L5,
and bilateral foraminal stenosis at L5-S1, primarily related to the facet joint, but no other
significant abnormalities. (Tr. 17, 283.) The ALJ stated that Fischer has not presented with
chronic motor, sensory, reflex, or strength deficits upon physical examination. (Tr. 17, 378-90.)
Rather, the ALJ noted that Fischer has presented with findings such as some tenderness at T12 and
slightly brisk reflexes. (Tr. 17-18, 372.) The medical evidence discussed below supports the
ALJ’s findings.
Fischer presented to family physician Diane Jacobi, M.D., on August 19, 2011, requesting
narcotics for pain in her rib area where a rib had been removed. (Tr. 389.) Dr. Jacobi indicated
that this was not a sudden irritation but was chronic pain Fischer had been experiencing for years.
Id. Upon examination, Fischer was shaking and moving her feet in rhythm; she was agitated
about her situation. Id. Dr. Jacobi referred Fischer to a pain clinic. (Tr. 388.)
Fischer was hospitalized from September 19, 2011 to September 20, 2011, with muscle
spasms caused by drug withdrawal. (Tr. 300.) Fischer stopped taking psychiatric medications
due to financial reasons. Id. Fischer had an injury to her left rib cage that resulted in subsequent
surgery due to chronic pain. (Tr. 309.) Fischer’s drug screen was positive for opiates as well as
for cannabinoids. (Tr. 301.) Fischer was counseled about taking illicit drugs as well as taking
her medications. Id. A consulting internist stated that there appeared to be a volitional
component to Fischer’s muscle movements. (Tr. 311.) It was noted that Fischer did not need

Page 17 of 26 

any narcotic pain medications, and that medications should be kept to a minimum. (Tr. 312.)
On December 5, 2011, Fischer presented to Dr. Jacobi with complaints of leg cramps.
(Tr. 384.) Upon examination, Fischer was in no apparent distress, she moved all four extremities,
and no swelling was noted. Id. Dr. Jacobi referred Fischer to neurology. (Tr. 383.) On
December 16, 2011, Fischer was examined after visiting the emergency room with complaints of
leg cramps and low back pain. (Tr. 382.) Fischer showed no signs of sciatica; her spine was
non-tender; and she had paraspinal muscle tenderness. Id. Dr. Jacobi noted that Fischer had
never gotten the pain clinic referral or the neurology referral. Id. She ordered a CT scan of the
lumbosacral spine, and prescribed Flexeril7 for muscle spasms. Id. On December 22, 2011,
Fischer presented for an examination, at which time she was “pleasant, asking about taking [Dr.
Jacobi’s] prescription pad so she can write some prescriptions just jokingly, and otherwise in no
apparent distress.” (Tr. 380.) Fischer had still not set up appointments for the pain clinic or
neurology clinic. Id. Upon examination, Fischer’s spine was non-tender, and she moved all four
extremities. Id. During her examination, Fischer was “laughing and joking and not ever
commenting about the pain except that it hurts, but not showing any signs of limitation of
movement form her pain, interacting and joking with her daughter.” Id. Dr. Jacobi diagnosed
Fischer with chronic pain and recommended she follow-up with the pain clinic and neurologist.
(Tr. 379.) On December 23, 2011, Fischer called Dr. Jacobi’s office requesting pain medication,
and became irritated when she was told Dr. Jacobi was not in the office. (Tr. 378.) Dr. Jacobi
stated that she prescribed Toradol8 to last until Fischer began treatment at the pain clinic and that

7

Flexeril is indicated for the short-term treatment of muscle spasms. See WebMD,
http://www.webmd.com/drugs (last visited March 10, 2016).
8
Toradol is a nonsteroidal anti-inflammatory drug indicated for the short-term treatment of
moderate to severe pain. See WebMD, http://www.webmd.com/drugs (last visited March 10,
2016).
Page 18 of 26 

the pain clinic would manage her pain after that. Id.
Fischer presented to the Anesthesiology Pain Clinic on January 6, 2012, with complaints of
lumbar back pain with radiation down both legs. (Tr. 371.) Fischer reported that her back pain
started in 2005, following the rib removal surgery. Id. Upon physical examination, Fischer had
a positive straight leg test bilaterally, but full strength throughout the bilateral lower extremities.
(Tr. 372.) Fischer was diagnosed with lumbar radiculopathy and was given an epidural steroid
injection. Id.
Fischer continued to see Dr. Jacobi for various complaints. On May 30, 2012, Fischer
complained that one of her grandchildren she was caring for bit her. (Tr. 500.) Fischer was
given a tetanus shot. Id.
Fischer underwent a lumbar epidural steroid injection on July 25, 2012.

(Tr. 522.)

On August 17, 2012, Fischer presented to Dr. Jacobi with complaints of a bruise on her
right leg, and occasional chest pain. (Tr. 498.) Dr. Jacobi recommended testing. (Tr. 499.)
Fischer returned for follow-up on September 26, 2012, at which time she was in good spirits. (Tr.
497.) Dr. Jacobi indicated that Fischer had undergone testing, which revealed nonocclusive9
coronary artery disease. Id. Dr. Jacobi counseled Fischer regarding quitting smoking. (Tr.
496.) Fischer received treatment for a sinus infection in October 2012 (Tr. 495), and for a rash in
January 2013 (Tr. 493). On April 8, 2013, Fischer complained of upper respiratory symptoms.
(Tr. 489.) Upon physical examination, Dr. Jacobi noted that Fischer’s gait was within normal
limits. (Tr. 491.) Dr. Jacobi diagnosed Fischer with upper respiratory infection, and again
advised her to stop smoking. Id.
On February 25, 2013, Fischer presented to the Neurology Clinic upon the referral of Dr.

9

Not blocking the coronary vessel. Stedman’s at 1355.
Page 19 of 26 

Jacobi for a consultation of pain in the left side of her chest resulting from a boating accident seven
years prior. (Tr. 554-57.) Fischer reported pain in the mid-back, which radiates from the back to
the front. (Tr. 555.) Upon physical examination, Fischer had normal tone and strength in all
four extremities, her sensory exam was normal, no tenderness was noted over any part of the spine,
and she was able to walk on toes, heels, and tandem. (Tr. 556.) Fischer was referred to a pain or
anesthesiology clinic for consideration of a nerve block. (Tr. 557.)
On April 2, 2013, Fischer presented to the Orthopaedic Clinic, with complaints of low and
middle back pain, and cramping down both legs since her boating accident. (Tr. 558-61.) Upon
physical examination, Fischer was in no apparent distress, had good range of motion, intact
sensation and strength, and negative straight-leg raise. (Tr. 560.) Her reflexes were noted to be
slightly brisk. Id. It was noted that Fischer complained of neuropathic pain for which she had
failed to get any improvement from injections in the past, and low back pain likely related to disk
disease at L5-S1. Id. Fischer was started on Topamax.10 Id.
The medical evidence discussed above supports the ALJ’s finding that, although Fischer
suffers from a severe back impairment, physical examinations have revealed few abnormalities.
Fischer has not presented with chronic motor, sensory, reflex, or strength deficits upon physical
examination. Fischer argues that examination revealed a positive straight leg raise. It is true
Fischer was noted to have a positive straight leg raise test bilaterally at the pain clinic in January
2012. (Tr. 372.) This was the only occasion, however, where Fischer’s straight leg raise test
was positive. Fischer’s subsequent examination at the Orthopaedic Clinic in April 2013 revealed
a negative straight-leg raise test. (Tr. 560.) In addition, examinations have consistently noted
good range of motion, full strength, normal sensation, and a normal gait. (Tr. 372, 491, 556, 562.)

10

Topamax is indicated for the treatment of seizures. See WebMD,
http://www.webmd.com/drugs (last visited March 10, 2016).
Page 20 of 26 

The ALJ also discussed relevant credibility factors in determining Fischer’s RFC.
Credibility questions are “primarily for the ALJ to decide, not the courts.” Baldwin v. Barnhart,
349 F.3d 549, 558 (8th Cir. 2003). “If an ALJ explicitly discredits the claimant’s testimony and
gives good reasons for doing so, the Court should defer to the ALJ’s credibility determination.”
Gregg v. Barnhart, 354 F.3d 710, 713 (8th Cir. 2003).
The ALJ first stated that Fischer has not received the type of treatment one could
reasonably expect given her allegations regarding disabling pain. (Tr. 19.) For example, Fischer
testified at the hearing that she did not see a particular doctor for her back pain. (Tr. 54.) Fischer
only received two steroid injections during the relevant period, one in January 2012 and one in
July 2012. (Tr. 372, 522.) Fischer testified that she had not been referred to physical therapy or
a surgical consultation. (Tr. 54.) The ALJ properly considered Fischer’s conservative treatment
when considering the credibility of her allegations of disabling pain. See Gowell v. Apfel, 242
F.3d 793, 796 (8th Cir. 2001) (conservative treatment supported the ALJ’s adverse credibility
determination); Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) (conservative treatment,
including exercises and medication, and lack of surgery supported ALJ’s adverse credibility
determination).
The ALJ next stated that Fischer’s drug-seeking behavior detracted from her credibility.
Fischer’s drug-seeking behavior is well-documented in Dr. Jacobi’s treatment notes. (Tr. 389,
380, 378.) On August 19, 2011, Dr. Jacobi noted that Fischer requested several times during the
visit that she prescribe narcotics, as another doctor had stopped prescribing a narcotic pain
medication. (Tr. 389.) Dr. Jacobi reiterated that she “would not be writing her for any
narcotics.” Id. On December 21, 2011, Fischer was laughing and joking and showing no signs
of pain during her examination, and then asked Dr. Jacobi if she could take her “prescription pad

Page 21 of 26 

so she can write some prescriptions.” (Tr. 380.) On December 23, 2011, Fischer called Dr.
Jacobi’s office requesting pain medication, and became irritated when Dr. Jacobi was not in the
office. (Tr. 378.) Dr. Jacobi told Fischer she would not be prescribing pain medication and
instructed her to receive medication from a pain management clinic. Id. She also suggested a
drug treatment program. Id. Fischer’s use of narcotic pain medication, as well as illegal drugs,
was also documented in the records from her September 2011 hospitalization for muscle spasms
related to drug withdrawal. (Tr. 300-12.) It was noted at that time that Fischer did not need any
narcotic pain medication. (Tr. 301.) The ALJ properly considered Fischer’s drug-seeking
behavior when assessing the credibility of her allegations of disabling pain. See Harvey v.
Barnhart, 368 F.3d 1013, 1015 (8th Cir. 2004) (finding drug seeking behavior was inconsistent
with plaintiff's complaints of pain).
The ALJ found that Fischer’s daily activities of cleaning, cooking, shopping, caring for her
daughter, caring for her two grandchildren, reading, watching television, and walking for short
distances inconsistent with her allegations of disabling pain. (Tr. 15, 19.) While the
undersigned appreciates that a claimant need not be bedridden before she can be determined to be
disabled, Fischer’s daily activities can nonetheless be seen as inconsistent with her subjective
complaints of a disabling impairment and may be considered in assessing her credibility. See
Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004) (holding that the ALJ properly
considered that claimant watched television, read, drove, and attended church upon concluding
that subjective complaints of pain were not credible).
The ALJ pointed out other inconsistencies in the record. For example, the ALJ noted that
Fischer denied caring for her grandchildren at the hearing, yet Fischer’s treatment notes document
otherwise. (Tr. 19, 45-46, 500.) Specifically, Dr. Jacobi’s May 30, 2012 treatment notes state

Page 22 of 26 

that Fischer reported she was caring for two young grandchildren because their parents had both
been arrested. (Tr. 500.) Fischer had sought treatment on that date when one of her
grandchildren bit her. Id. At the hearing, Fischer testified that she did not care for her
grandchildren, but when questioned about Dr. Jacobi’s treatment notes, Fischer stated, “Well,
they’re there. I mean I—they’re there in my—where I watch them. But I can’t physically
lift—they’re able to walk and…” (Tr. 45.) This inconsistency detracts from Fischer’s
credibility.
The ALJ also noted that Fischer collected unemployment benefits in the third and fourth
quarters of 2011, during the relevant period. (Tr. 19.) The ALJ found that Fischer’s holding
herself out as being able to work to the State, while simultaneously holding herself out to the SSA
as being unable to work detracted from her credibility. (Tr. 19.) See Black v. Apfel, 143 F.3d
383, 387 (8th Cir. 1998) (applying for unemployment compensation is evidence negating a
claimant’s claim of disability).
Finally, the ALJ discussed the opinion of non-examining State agency physician Jack
Bankhead, M.D. (Tr. 19-20.) Dr. Bankhead expressed the opinion on September 10, 2012 that
Fischer had the RFC to perform light work. (Tr. 455.) The ALJ indicated that she was assigning
partial weight to this opinion, as it was based on a comprehensive review of the record and was
consistent with the record and Fischer’s self-reported daily activities. (Tr. 20.)
The ALJ made the following determination with regard to Fischer’s physical RFC:
After careful consideration of the entire record, the undersigned
finds that the claimant has the Residual Functional Capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b). She needs to alternate between sitting and standing
positions for brief periods of time not to exceed a few minutes while
remaining at her workstation with little or no loss of production; can
occasionally climb ramps and stairs, but never climb ladders, ropes,
or scaffolds; can occasionally stoop, kneel, crouch, and crawl;
Page 23 of 26 

should avoid frequent exposure to vibration and hazards, such as
dangerous machinery and unprotected heights.
(Tr. 16.)
Plaintiff relies on Nevland v. Apfel, 204 F.3d 853 (8th Cir. 2000) as support for her argument
that the ALJ erred in failing to develop the record regarding her physical RFC. Nevland held that
the ALJ failed to fully and fairly develop the record where there was “no medical evidence about
how [the claimant’s] impairments affect his ability to function now” and “the ALJ relied on the
opinions of non-treating, non-examining physicians who reviewed the reports of the treating
physicians to form an opinion of [the claimant’s] RFC.” Nevland, 204 F.3d at 858 (emphasis in
original). The conclusion in Nevland was that the ALJ should have sought an opinion from the
claimant’s treating physicians or ordered a consultative examination. Id. Due to the lack of
substantial evidence supporting the ALJ’s RFC determination, the ALJ’s decision was reversed
and remanded. Id.
This case is distinguishable from Nevland. The claimant in Nevland provided medical
evidence that documented his limited functional capabilities. See Nevland, 204 F.3d at 854-56.
The ALJ in Nevland erred in disregarding this evidence and the claimant’s testimony about his
RFC solely based on the opinions of non-examining sources. Id. at 858.
In this case, there is no medical evidence in the record supporting any greater limitations
than those found by the ALJ. Rather, the objective evidence supports the ALJ’s determination
that Fischer is capable of performing a limited range of light work. As previously discussed, the
ALJ accurately stated that the treatment notes of the examining physicians reveal that Fischer’s
back impairment has not manifested as any chronic motor, sensory, reflex, or strength deficits.
Rather, physical examinations have revealed good range of motion, full strength, normal
sensation, a normal gait, and an ability to walk on her toes, heels, and tandem. (Tr. 372, 491, 556,
Page 24 of 26 

562.) Fischer’s most recent examination revealed a negative straight-leg raise test. (Tr. 560.)
In addition, Dr. Jacobi noted on one occasion during the relevant period that, despite Fischer’s
complaint of disabling pain, she was laughing during her physical examination and not showing
any signs of limitation of movement from her pain. (Tr. 380.) Thus, there was sufficient
medical evidence in the record for the ALJ to determine Plaintiff’s physical RFC and Plaintiff has
failed to show any prejudice due to the ALJ’s failure to order a consultative examination.
In addition to the medical evidence from the examining physicians discussed above, the
ALJ’s determination is supported by the opinion of State agency physician Dr. Bankhead.
Further, the ALJ found that Fischer’s allegations of disabling pain were not credible due to factors
such as her daily activities, drug-seeking behavior, and other inconsistencies in the record. The
ALJ’s determination regarding Plaintiff’s physical RFC is supported by substantial evidence in the
record as a whole. “[T]he burden of persuasion to prove disability and demonstrate RFC [is] on
the claimant.” Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010). For the foregoing reasons,
Fischer has not established that the ALJ erred in assessing her physical RFC.
After determining Fischer’s RFC, the ALJ found that Fischer was unable to perform any
past relevant work. (Tr. 21.) The ALJ properly relied on the testimony of a vocational expert to
find that Fischer could perform other work existing in significant numbers in the national economy
with her RFC, including both light and sedentary unskilled jobs of small products assembler,
optical lens inserter, dowel inspector, and table worker. (Tr. 22, 62-63.) See Robson v. Astrue,
526 F.3d 389, 392 (8th Cir. 2008) (holding that a vocational expert’s testimony is substantial
evidence when it is based on an accurately phrased hypothetical capturing the concrete
consequences of a claimant’s limitations). Thus, the ALJ’s decision finding Fischer not disabled
is supported by substantial evidence.

Page 25 of 26 

Accordingly, Judgment will be entered separately in favor of Defendant in accordance with
this Memorandum.   

Dated: March 25, 2016
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE

Page 26 of 26