Seavey v. Colvin
Filing
36
MEMORANDUM OPINION : IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the Commissioner of Social Security is AFFIRMED. Signed by Magistrate Judge Shirley Padmore Mensah on 3/14/18. (ARL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PHILLIP A. SEAVEY,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.
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Case No. 2:16-CV-00063-SPM
MEMORANDUM OPINION
This is an action under 42 U.S.C. §§ 405(g) for judicial review of the final decision of
Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, denying the
application of Plaintiff Phillip A. Seavey (“Plaintiff”) for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., (the “Act”). The parties
consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c).
(Doc. 16). Because I find substantial evidence to support the decision denying benefits, I will
affirm the Commissioner’s denial of Plaintiff’s application.
I.
BACKGROUND
On February 28, 2013, Plaintiff applied for DIB, alleging that he has been unable to work
since Oct. 3, 2012. (Tr. 12). His application was initially denied on April 19, 2013. Id. Plaintiff
filed a Request for Hearing by Administrative Law Judge (“ALJ”). Id. On March 27, 2015,
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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as
the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
following a hearing, the ALJ found Plaintiff was not under a “disability” as defined in the Act.
Id. Plaintiff filed a Request for Review of Hearing Decision with the Social Security
Administration’s Appeals Council. (Doc. 34 at 1). On May 7, 2016, the Appeals Council
declined to review the case. Id. Plaintiff has exhausted all administrative remedies, and the
decision of the ALJ stands as the final decision of the Commissioner of the Social Security
Administration.
The facts related to the issues raised by Plaintiff will be addressed as needed in the
discussion below.
II. STANDARD FOR DETERMINING DISABILITY UNDER THE ACT
To be eligible for benefits under the Social Security Act, a claimant must prove he or she
is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Sec’y of Health
& Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Social Security Act defines as disabled
a person who is unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir.
2010). The impairment must be “of such severity that he 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 the national economy, regardless of whether such
work exists in the immediate area in which he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for work.” 42 U.S.C. §§ 423(d)(2)(A);
1382c(a)(3)(B).
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To determine whether a claimant is disabled, the Commissioner engages in a five-step
evaluation process. 20 C.F.R. §§ 404.1520(a), 416.920(a); see also McCoy v. Astrue, 648 F.3d
605, 611 (8th Cir. 2011) (discussing the five-step process). At Step One, the Commissioner
determines whether the claimant is currently engaging in “substantial gainful activity”; if so, then
he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i); McCoy, 648 F.3d at 611. At Step Two, the
Commissioner determines whether the claimant has a severe impairment, which is “any
impairment or combination of impairments which significantly limits [the claimant’s] physical or
mental ability to do basic work activities”; if the claimant does not have a severe impairment, he
is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c); McCoy, 648 F.3d at 611. At Step
Three, the Commissioner evaluates whether the claimant’s impairment meets or equals one of
the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “listings”). 20 C.F.R.
§§ 404.1520(a)(4)(iii); McCoy, 648 F.3d at 611. If the claimant has such an impairment, the
Commissioner will find the claimant disabled; if not, the Commissioner proceeds with the rest of
the five-step process. 20 C.F.R. §§ 404.1520(d); McCoy, 648 F.3d at 611.
Prior to Step Four, the Commissioner must assess the claimant’s “residual functional
capacity” (“RFC”), which is “the most a claimant can do despite [his or her] limitations.” Moore
v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)); see also 20
C.F.R. §§ 404.1520(e). At Step Four, the Commissioner determines whether the claimant can
return to his past relevant work, by comparing the claimant’s RFC with the physical and mental
demands of the claimant’s past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f);
McCoy, 648 F.3d at 611. If the claimant can perform his past relevant work, he is not disabled; if
the claimant cannot, the analysis proceeds to the next step. Id. At Step Five, the Commissioner
considers the claimant’s RFC, age, education, and work experience to determine whether the
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claimant can make an adjustment to other work in the national economy; if the claimant cannot
make an adjustment to other work, the claimant will be found disabled. 20 C.F.R. §§
404.1520(a)(4)(v), 416.920(a)(4)(v); McCoy, 648 F.3d at 611.
Through Step Four, the burden remains with the claimant to prove that he is disabled.
Moore, 572 F.3d at 523. At Step Five, the burden shifts to the Commissioner to establish that,
given the claimant’s RFC, age, education, and work experience, there are a significant number of
other jobs in the national economy that the claimant can perform. Id.; Brock v. Astrue, 674 F.3d
1062, 1064 (8th Cir. 2012).
III. THE ALJ’S DECISION
Applying the foregoing five-step analysis, the ALJ here found that Plaintiff has not
engaged in substantial gainful activity since the alleged onset date, October 3, 2012; that Plaintiff
has the severe impairments of degenerative disc disease, hypertension, anxiety, depression, and
degenerative joint disease; and that Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in 20
C.F.R. § 404, Subpart P, Appendix 1. (Tr. 14-15). The ALJ found that Plaintiff has the RFC to
perform light work as defined in 20 C.F.R. §§ 404.1567(b), except that he can never perform
overhead work with the left upper extremity; can perform frequent, but not constant, reaching or
grasping with the non-dominant left upper extremity; can only occasionally stoop, kneel, crouch,
or crawl; would be limited to simple routine tasks; can have only occasional contact with the
general public and coworkers; and can have only occasional changes in a routine work setting.
(Tr. 17). The ALJ found that Plaintiff is unable to perform any of his past relevant work. (Tr.
23). However, relying on the testimony of a vocational expert (“VE”), the ALJ found that
Plaintiff would be able to perform occupations including housekeeping (Dictionary of
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Occupational Titles (“DOT”) No. 323.687-014, light exertion level, unskilled, 371,370 jobs in
the national economy), routing clerk (DOT No. 222.687-022, light exertion level, 74,788 jobs in
the national economy); and folding material operator (DOT No. 208.685-014, light exertion
level, 119,960 jobs in the national economy). (Tr. 24). The ALJ concluded that Plaintiff had not
been under a disability, as defined in the Act, from October 3, 2012, through the date of his
decision. (Tr. 25).
IV. DISCUSSION
Plaintiff challenges the ALJ’s decision on three grounds: (1) that the ALJ’s RFC finding
is too vague to allow meaningful review or to satisfy the specificity required by regulation and
policy, because the ALJ limited Plaintiff to “light work” instead of conducting a function-byfunction analysis; (2) that the ALJ erred in evaluating the medical source opinions in assessing
his physical RFC; and (3) that the ALJ erred in evaluating the medical source opinions in
assessing his mental RFC.
A. Standard for Judicial Review
The decision of the Commissioner must be affirmed if it complies with the relevant legal
requirements and is supported by substantial evidence in the record as a whole. See 42 U.S.C.
§§ 405(g); 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 401 (1971); Pate-Fires v. Astrue,
564 F.3d 935, 942 (8th Cir. 2009); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).
“Substantial evidence ‘is less than a preponderance, but enough that a reasonable mind might
accept as adequate to support a conclusion.’” Renstrom v. Astrue, 680 F.3d 1057, 1063 (8th Cir.
2012) (quoting Moore, 572 F.3d at 522). In determining whether substantial evidence supports
the Commissioner’s decision, the court considers both evidence that supports that decision and
evidence that detracts from that decision. Id. However, the court “‘do[es] not reweigh the
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evidence presented to the ALJ, and [it] defer[s] to the ALJ’s determinations regarding the
credibility of testimony, as long as those determinations are supported by good reasons and
substantial evidence.’” Id. at 1064 (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.
2006)). “If, after reviewing the record, the court finds it is possible to draw two inconsistent
positions from the evidence and one of those positions represents the ALJ’s findings, the court
must affirm the ALJ’s decision.” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting
Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)).
B. The RFC Limitation to “Light Work”
Plaintiff’s first argument is that the ALJ’s RFC finding is too vague to allow meaningful
review or to satisfy the specificity required by regulation and policy, in that the ALJ described
Plaintiff’s RFC as “light work” instead of making specific function-by-function findings as to
Plaintiff’s physical abilities to walk, sit, stand, push, and pull. (Doc. 33 at 2-3).
A claimant’s RFC is “the most a claimant can do despite her limitations.” Moore, 572
F.3d at 523 (citing 20 C.F.R. § 404.1545(a)(1)). “The ALJ must assess a claimant’s RFC based
on all relevant, credible evidence in the record, ‘including the medical records, observations of
treating physicians and others, and an individual’s own description of his limitations.’” Tucker
v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004) (quoting McKinney v. Apfel, 228 F.3d 860, 863
(8th Cir. 2000)).
In this case, the ALJ made the following findings regarding Plaintiff’s 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) except the claimant can perform no overhead work with the
left upper extremity; can perform frequent reaching, or grasping with the nondominant left upper extremity, but not constant; can occasionally stoop, kneel,
crouch, or crawl; would be limited to simple routine tasks; can have only
occasional contact with the general public and coworkers; and can have only
occasional changes in a routine work setting.
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(Tr. 17).
Similarly, in the hypothetical question posed to the VE, the ALJ described an
individual who could perform “light work activity” with additional limitations, but did not
include specific walking, sitting, standing, pushing, or pulling limitations.
As Plaintiff points out, Social Security Ruling SSR 96-8p states:
The RFC assessment must first identify the individual’s functional limitations or
restrictions and assess his or her work-related abilities on a function-by-function
basis, including the functions in paragraphs (b), (c), and (d) of 20 C.F.R. 404.1545
and 416.945. Only after that may RFC be expressed in terms of the exertional
levels of work, sedentary, light, medium, heavy, and very heavy.
Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *1 (July 2, 1996). The functions
described in the referenced regulations include physical functions such as sitting, standing,
walking, pushing, and pulling, as well as mental functions and ability to deal with environmental
conditions. See 20 C.F.R. §§ 404.1545.
Plaintiff argues that remand is required because the ALJ failed to conduct the functionby-function analysis required by SSR 96-8p before finding him capable of “light work.” He
argues that the ALJ should have provided specific details about Plaintiff’s capacity to sit, stand,
walk, push, and pull. Plaintiff argues that this is problematic because the ALJ found that he could
do “light” work, and there are a variety of combinations of functional limitations that might
permit a person to perform “light” work. “Light work” is defined in the regulations as follows:
Light work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds. Even though the weight lifted
may be very little, a job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do substantially all of these
activities. If someone can do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
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20 C.F.R. §§ 404.1567(b) & 416.967(b).2 Plaintiff argues that because of the different activities
that might constitute “light work,” it is unclear what specific activities the ALJ found Plaintiff
was capable of performing.
In Depover v. Barnhart, 349 F.3d 563 (2003), the Eighth Circuit considered a similar
situation in which the ALJ’s RFC finding did not address Plaintiff’s ability to sit, stand, or walk,
but did include limitations on Plaintiff’s ability to lift, carry, bend, stoop, squat, kneel, crawl,
climb, and work around moving machinery and heights. Id. at 567. The Eighth Circuit stated,
“although we would have preferred that he had made specific findings as to sitting, standing, and
walking, we do not believe that he overlooked those functions.” Id. The court noted that “all of
the functions that the ALJ specifically addressed in the RFC were those in which he found a
limitation, thus giving us some reason to believe that those functions that he omitted were those
that were not limited”; that the ALJ had asked an alternative hypothetical question that did
include limitations on sitting, standing, and walking; and that the ALJ had noted in his decision
the plaintiff’s testimony about his inability to stand. Id. The court concluded, “[W]e believe that
2
Similarly, the DOT defines light work as follows:
Exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force
frequently, and/or a negligible amount of force constantly (Constantly: activity or
condition exists 2/3 or more of the time) to move objects. Physical demand
requirements are in excess of those for Sedentary Work. Even though the weight
lifted may be only a negligible amount, a job should be rated Light Work: (1)
when it requires walking or standing to a significant degree; or (2) when it
requires sitting most of the time but entails pushing and/or pulling of arm or leg
controls; and/or (3) when the job requires working at a production rate pace
entailing the constant pushing and/or pulling of materials even though the weight
of those materials is negligible. NOTE: The constant stress and strain of
maintaining a production rate pace, especially in an industrial setting, can be and
is physically demanding of a worker even though the amount of force exerted is
negligible.
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the ALJ implicitly found that Mr. Depover was not limited in these functions, and in this instance
we do not see any reason to remand to make the findings explicit.” Id. at 567-68.
In addition, several district courts within the Eighth Circuit have found no reversible error
in situations similar to the one here, in which the ALJ expressed the plaintiff’s RFC and/or the
hypothetical question to the VE in terms of “light work” without setting forth specific functional
limitations in walking, sitting, standing, pushing, or pulling, but did include some other physical
limitations. See Linze v. Colvin, No. 4:12-CV-1113-CDP, 2013 WL 5442766, at *6 (E.D. Mo.
Sept. 30, 2013) (rejecting the plaintiff’s argument that the ALJ’s hypothetical question was
incomplete because it described an individual capable of performing “the full range of light
work”; stating, “The ALJ described an individual who could do light work in his hypothetical
question and, so, provided a functional assessment of Linze’s abilities. The vocational expert’s
answer to that question supplies substantial evidence to support the ALJ’s finding that Linze
could return to her past relevant work.”) (citing Depover, 349 F.3d at 568); Biggs v. Astrue, Civ.
No. 11-3066, 2012 WL 3637642, at *1, *8 (W.D. Ark. Aug. 23, 2012) (rejecting the plaintiff’s
argument that remand was required based on a violation of SSR 96-8p where the ALJ
determined that the plaintiff retained the RFC to perform “light work” but did not make specific
findings with regard to sitting, standing, walking, or lifting; noting that light work is defined in
the regulations and that the ALJ had made additional findings with regard to the plaintiff’s
limitations in areas such as climbing, stooping, bending, and crouching); Arant v. Astrue, No.
5:11-6004-DGK-SSA, 2012 WL 1067740, at *3-*4 (W.D. Mo. Mar. 29, 2012) (rejecting the
plaintiff’s argument that remand was required because the ALJ’s RFC was expressed in terms of
“light work as defined in 20 C.F.R.§ 416.967(b)” and did not specify maximum capabilities of
sitting, standing, or walking; finding that the RFC finding was not vague or contrary to the
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requirements of SSR 96-8p); Rogalaski v. Astrue, No. 4:10 CV 2391 DDN, 2011 WL 5914017,
at *9 (E.D. Mo. Nov. 28, 2011) (rejecting the plaintiff’s argument that remand was required
because the ALJ expressed the RFC determination in terms of the exertion required for “light”
work, in violation of SSR 96-8p; stating that “[w]hile the ALJ did express plaintiff’s RFC in
terms of the ‘light’ exertional category, the ALJ also referred to the appropriate statutory
definitions of ‘light,’ and specifically addressed plaintiff’s ability to bend, stoop, crouch and
crawl” and that the ALJ’s RFC determination was “supported by a narrative discussion”); Cook
v. Astrue, 629 F. Supp. 2d 925, 933 (W.D. Mo. 2009) (rejecting the argument that remand was
required where the ALJ described Plaintiff’s RFC in terms of “light work” without a functionby-function analysis; finding that “the ALJ’s RFC of light work implicitly made findings as to
claimant’s ability to do work-related activities,” noting that in the hypothetical posed to the VE,
the ALJ described specific limitations on exposure to chemicals, ability to reach overhead with
the left upper extremity, and need for low-stress tasks, and stating that “while it may be better
practice to make specific objective physical characteristics findings in the ALJ’s determination
of RFC, a failure to do so is not reversible error when the ALJ has sufficiently developed the
record as to Plaintiff’s RFC” ).
The Court finds the reasoning of the above cases persuasive and applicable to this case.
As in most of those cases, although the ALJ here did not specifically describe Plaintiff’s ability
to walk, sit, stand, push or pull, he did include specific limitations in several other physical
functions, including the ability to perform overhead work; reach or grasp; and stoop, kneel,
crouch, or crawl. Moreover, the ALJ asked the VE to explain how she considered Plaintiff’s
limitations in using his upper left extremity, and she explained that the DOT did not address
overhead reaching or whether an individual can use one hand more easily than the other, so she
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chose jobs that accommodated those limitations based on her own expertise. (Tr. 56). This
indicates that the ALJ did not overlook the possibility that Plaintiff had more significant
limitations than those required for a full range of light work. In addition, the ALJ conducted a
detailed review of Plaintiff’s allegations and the medical record, and offered several reasons why
he found Plaintiff’s allegations not credible, suggesting that he considered and rejected the
possibility that Plaintiff had limitations more significant than those the ALJ specifically
identified in the RFC and hypothetical question. The most reasonable reading of the ALJ’s
decision is that he found Plaintiff capable of performing the full range of light work, with the
exception of the specific areas in which he found that Plaintiff had limitations. The hypothetical
question posed to the VE accurately reflected that RFC finding. Although it would have been
preferable for the ALJ to make specific findings about each physical function, the failure to do so
in this case does not require reversal.
Additionally, the Court agrees with the Commissioner that the ALJ’s finding that
Plaintiff could perform all of the requirements of light work, except as indicated in his decision,
is supported by substantial evidence. That includes evidence that he frequently reported to his
treatment providers that he felt well with only minor complaints; that he often reported no pain in
his back, neck or joints; that he did not regularly use pain medication, and never used other pain
control methods; that he frequently walked for exercise; and that there were inconsistencies
between Plaintiff’s complaints of very significant limitations and his reported daily activities.
(Tr. 17-21, 49-50, 290, 293, 303, 623-24, 664, 669-70, 673-76).
For all of the above reasons, the Court finds no reversible error with respect to the ALJ’s
failure to conduct a function-by-function analysis of Plaintiff’s RFC.
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C. ALJ’s Evaluation of Medical Opinions in Assessing Physical RFC
Plaintiff first argues that the ALJ erred in discounting the opinion of Dr. Robert Sparks,
his treating physician, and alleges that the ALJ did not evaluate his opinion in the proper manner.
(Doc. 33 at 7-8). Plaintiff alleges that the ALJ should have first determined whether his opinion
deserved “controlling weight,” before considering what lesser amount of weight should be
accorded the opinion under 20 C.F.R. § 404.1527(c).3 “Generally, [a] treating physician's
opinion is due controlling weight if that opinion is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in the record.” Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004). However, “[a]n
ALJ may discount or even disregard the opinion of a treating physician where other medical
assessments are supported by better or more thorough medical evidence, or where a treating
physician renders inconsistent opinions that undermine the credibility of such opinions.” Skelton
v. Colvin, No. 1:14-CV-143-RLW, 2016 WL 320129, at *8 (E.D. Mo. Jan. 26, 2016) (quoting
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir.2005) (internal quotation omitted); Wildman v.
Astrue, 596 F.3d 959, 964 (8th Cir. 2010). It is true that the ALJ did not first explicitly state that
Dr. Sparks’ opinion did not deserve controlling weight before going on to expound upon why he
accorded it lesser weight. However, such a conclusion is self-evident from the ALJ’s decision.
The ALJ was clear in that he gave little weight to Dr. Sparks’ opinion because it conflicted with
the contemporaneous medical records as well as other evidence in the record as a whole. See 20
C.F.R. § 404.1527(c)(3) (“The more a medical source presents relevant evidence to support an
opinion, particularly medical signs and laboratory findings, the more weight we will give that
opinion.”). A medical source opinion that is inconsistent with the objective medical evidence
3
The Court’s references in this section are to the version of the regulations that was in effect as of the date of the
ALJ’s decision.
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cannot be afforded controlling weight. See 20 C.F.R. § 404.1527(c)(2) (to be afforded
controlling weight, a medical opinion must be from a treating physician, must be consistent with
the record as a whole, and must be supported by the objective medical evidence). In finding that
Dr. Sparks’ opinion was unsupported by the objective evidence in the record as a whole, the ALJ
implicitly found that his opinion could not be given controlling weight. While it would have
been preferable for the ALJ to state this explicitly in his decision, failure to do so when it was
otherwise clear does not require remand. See Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.
2000) (citing Reynolds v. Chater, 82 F.3d 254, 258 (8th Cir. 1996) (“Although specific
articulation of credibility findings is preferable, [the Court] consider[s] the lack thereof to
constitute a deficiency in opinion-writing that does not require reversal because the ultimate
finding is supported by substantial evidence in the record.”).
Furthermore, the Court finds that the ALJ properly determined that Dr. Sparks’ opinion
was unsupported by the objective medical evidence of record. Dr. Sparks opined that Plaintiff
had been suffering from a debilitating degree of pain and a frequently debilitating degree of
fatigue since March 2010. (Tr. 764-65). He further opined that Plaintiff could sit for only three
hours, stand or walk for three hours, and would need to lie down for two hours during an eight
hour workday. (Tr. 762). However, Dr. Spark’s treatment notes do not support such restrictions.
Dr. Sparks had been Plaintiff’s treating physician since October 2010, and Plaintiff attended
fourteen doctor’s appointments with him between October 3, 2012 (the alleged date of onset of
disability) and March 27, 2015 (the date of the ALJ’s decision). At eight of those visits, Dr.
Sparks’ treatment notes indicated that Plaintiff reported feeling well with only minor complaints
and good energy levels. (Tr. 290, 293, 303, 623, 629, 664, 669, 675). At nine appointments
Plaintiff indicated that he was not experiencing any back or joint pain. (Tr. 301, 303, 624, 630,
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635, 639, 644, 665, 670, 673, 676). At eight appointments, Plaintiff indicated that he was not
experiencing any neck pain. (Tr. 290, 301, 303, 624, 635, 639, 670, 673). Dr. Sparks did not
prescribe pain medication for Plaintiff, and Plaintiff testified that he didn’t regularly take pain
medications because he was the kind of person who does “not like taking medicine,” but that he
occasionally takes a Tylenol if the pain is “real bad,” which would seem to indicate that his pain
levels were not as severe as alleged. (Tr. 49-50). Furthermore, and as noted by the ALJ, despite
allegations of disabling pain, Plaintiff did not utilize other pain management therapies such as
physical therapy, biofeedback, a TENS unit, morphine pump, acupuncture, or massage therapy.
(Tr. 20). The ALJ reasonably concluded that Dr. Sparks’ opinion relied on Plaintiff’s subjective
reports rather than the objective medical evidence. (Tr. 22). See Whitman v. Colvin, 762 F.3d
701, 706 (8th Cir. 2014) (ALJ properly considered claimant's relative lack of medical care as
relevant when considering claimant's allegations of unbearable pain); see also Benskin v. Bowen,
830 F.2d 878, 884 (8th Cir. 1987) (disabling pain not indicated when claimant merely took Advil
and aspirin to relieve pain). As noted supra, a treating physician’s opinion is entitled to
controlling weight only if it is not inconsistent with other substantial evidence in the record. 20
C.F.R. § 404.1527(c)(2). “An ALJ may discount a treating source opinion that is unsupported by
treatment notes.” Aguiniga v. Colvin, 833 F.3d 896, 902 (8th Cir. 2016) (internal citation
omitted).
The Court also agrees with the ALJ's determination that Dr. Sparks’ statements regarding
Plaintiff’s limitations were contradicted by Plaintiff’s own statements regarding his activities of
daily living. (Tr. 20, 22). See Whitman, 762 F.3d at 706 (ALJ reasonably stated he discounted
physician's opinion because the opinion was “more restrictive than self-reported activities”); see
also Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000) (fact that claimant “continues to engage in
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many normal daily living activities including driving, shopping, [and] visiting with friends and
relatives . . . supports finding of ability to work). For example, Plaintiff testified that on a
normal day he would drive to the store to do some shopping, regularly took walks to get
exercise, and frequently drove to visit with family. (Tr. 50). Plaintiff reported that his hobbies
included camping and painting, and that he hoped to become self-employed in the field of
interior decorating. (Tr. 190, 711, 756). In his Function Report, Plaintiff indicated that he took
care of household chores including mowing, laundry, mopping, and cooking, and that he helps
care for his disabled adult son. (Tr. 187-90). He also reported that he planned to travel to Texas
by himself for a two week trip after his disability hearing. (Tr. 722). In summation, the Court’s
review shows there was substantial evidence in the record to support the ALJ’s decision to assign
little weight to Dr. Sparks’ opinion.
Plaintiff also argues that the ALJ erred in discounting the opinion of Dr. David Volarich,
who examined Plaintiff in August 2012, two months prior to the alleged disability onset date, in
order to provide an Independent Medical Examination for purposes of a workers’ compensation
application. (Tr. 240). Dr. Volarich opined that Plaintiff should only occasionally lift no more
than 25 pounds, that he should not lift any weight over his head, and should avoid remaining in a
fixed position for more than 60 minutes at a time, and should change positions frequently. (Tr.
249-250). When a medical opinion is not from a treating source, the ALJ considers the
following factors in determining the weight to be given to the opinion: “(1) examining
relationship, (2) treating relationship, (3) supportability, (4) consistency, (5) specialization, and
(6) other factors.” Wiese v. Astrue, 552 F.3d 728, 731 (8th Cir. 2009).
The ALJ gave Dr. Volarich’s opinion “little weight,” and stated that he did so because
Dr. Volarich “is not a treating physician and he had little opportunity to examine the claimant . . .
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[his] opinion was not consistent with objective medical evidence . . . [and] the opinion was
rendered in 2010, prior to his alleged onset date.” (Tr. 22). Plaintiff argues that the ALJ erred in
giving little weight to Dr. Volarich’s opinion because he was not a treating physician, when the
ALJ had assigned great weight to the opinions of two other non-treating physicians who opined
as to Plaintiff’s mental condition. (Doc. 33 at 6). However, this argument ignores the fact that
there were no opinions of record from a treating physician regarding Plaintiff’s mental
capabilities, and that the ALJ found those two opinions consistent with the record. Plaintiff also
argues that the ALJ erred by not identifying what evidence in the record contradicted Dr.
Volarich’s opinion. However, this contention is refuted by a review of the ALJ’s decision. The
ALJ devoted nearly four pages to thoroughly considering and discussing Plaintiff’s treatment
history, the objective medical evidence, his functional restrictions, and activities of daily living,
noting numerous examples of examination findings and other evidence that contradicted the
opinions of both Dr. Volarich and Dr. Sparks. (Tr. 17-20). I discussed these inconsistencies at
length when reviewing the ALJ’s evaluation of Dr. Sparks’ opinion, supra, and will not repeat
that discussion here.
Plaintiff also argues that the ALJ erred in finding that Dr. Volarich’s opinion was issued
in 2010, when it was actually issued in 2012. Plaintiff is correct, as acknowledged by the
Commissioner, that the opinion was issued in 2012. However, the opinion was still issued while
Plaintiff was working full time, and prior to the alleged date of disability onset. (Tr. 22, 149,
241). Addtionally, the ALJ cited numerous other factors for discounting the opinion of Dr.
Volarich, and the undersigned finds that the ALJ’s misstatement constitutes harmless error. See
McIlvene v. Astrue, No. 10-3481-CV-S-DGK-SSA, 2011 WL 4374542, at *4 (E.D. Mo. Sept. 19,
2011) (harmless error where mistake would not change ALJ’s disability determination). The
16
Court concludes that the ALJ properly applied the factors for evaluating a consultative
examiner’s opinions, and the weight he assigned to Dr. Volarich’s opinion is supported by
substantial evidence in the record as a whole.
Plaintiff also argues that reversal is warranted because no medical opinion of record
supports the ALJ’s physical RFC determination, as the ALJ “rejected” the opinions of both Dr.
Sparks and Dr. Volarich and then failed to order a consultative examination to correct this lack
of direct opinion evidence. (Doc. 33 at 4). The Court disagrees. “Because a claimant’s RFC is a
medical question, an ALJ’s assessment of it must be supported by some medical evidence of the
claimant’s ability to function in the workplace.” Cox v. Astrue, 495 F.3d 614, 619 (8th Cir.
2007). However, there is no requirement that an RFC finding be supported by a specific medical
opinion. See Perks v. Astrue, 687 F.3d 1086, 1092-93 (8th Cir. 2012). Furthermore, “[e]ven
though the RFC assessment draws from medical sources for support, it is ultimately an
administrative determination reserved to the Commissioner.” Cox, 495 F.3d at 619-20. Here,
the ALJ, first of all, did not “reject” the opinions of Drs. Sparks and Volarich. He merely
assigned “little weight” to them. (Tr. 22). See Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir.
2007) (considering a physician’s opinion and deciding to give “little weight” to it is not
equivalent to rejecting the opinion). Thus, there were opinions of record as to Plaintiff’s
physical functional limitations, and the ALJ properly considered them and determined that they
were inconsistent with the evidence in the record as a whole. As to the record as a whole, it
contained extensive treatment records which provided more than adequate medical evidence of
Plaintiff’s ability to function in the workplace. (Exs. 11E, 2F, 4F, 6F, 7F, 8F, 9F, 10F, 11F, 12F,
13F, 16F, 17F, 19F, 21F, 22F). In the absence of other medical opinion evidence, “medical
records prepared by the most relevant treating physicians [can] provide affirmative medical
17
evidence supporting the ALJ’s residual functional capacity findings.” Johnson v. Astrue, 628
F.3d 991, 995 (8th Cir. 2011). The Court rejects the contention that the ALJ failed to adequately
develop the record in this instance. With the medical record adequately developed, the ALJ was
not required to order a consultative examination, and the failure to do so is not cause for reversal.
See KKC ex rel. Stoner v. Colvin, 818 F.3d 364, 372-73 (8th Cir. 2016); 20 C.F.R. §
404.1519a(b); see also Martise v. Astrue, 641 F.3d 909, 926-27 (8th Cir. 2011) (The ALJ is
required to order further medical examinations only if the existing medical record does not
provide sufficient evidence to determine whether the claimant is disabled).
D. ALJ’s Evaluation of Medical Opinions in Assessing Mental RFC
Plaintiff first argues that the ALJ committed reversible error when he failed to consider
his GAF4 scores, inasmuch as these scores indicate that he suffers from “serious symptoms.” It
is true that the ALJ did not address Plaintiff’s GAF scores in his opinion. However, Plaintiff
overstates the importance of GAF scores. The Eighth Circuit Court of Appeals has concluded
that GAF scores have “little value” and the level of severity denoted by a GAF score does not
correlate to the severity requirements under the Act. See Nowling v. Colvin, 813 F.3d 1110,
1115 n.3 (8th Cir. 2016) (citing Jones v. Astrue, 619 F.3d 963, 973-74 (8th Cir. 2010))
(“Moreover, the Commissioner has declined to endorse the [GAF] score for use in the Social
Security and disability programs and has indicated that [GAF] scores have no direct correlation
to the severity requirements of the mental disorders listings.”). Accordingly, a “litany of GAF
scores in the 41-50 range, although indicating a serious problem with occupational functioning in
4
The Global Assessment of Functioning Scale (GAF) is a psychological assessment tool wherein an examiner is to
“[c]onsider psychological, social, and occupational functioning on a hypothetical continuum of mental healthillness.” Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), 32 (4th ed. 1994). A GAF score
between 41 and 50 indicates “[s]erious symptoms (e.g., suicidal ideation, frequent shoplifting, obsessive rituals), OR
any serious impairment in social or school functioning” DSM-IV 32. The Plaintiff was assigned a GAF score
within that range on a few separate occasions during the relevant time period. (Tr. 613, 690, 751).
18
the DSM-IV sense, does not necessitate a finding of disabling limitations under the Act.”
Doolittle v. Colvin, No. 13-CV-04261-C-DGK-SSA, 2014 WL 7369635, at *2 (W.D. Mo. Dec.
29, 2014). Further, the current edition of the Diagnostic Statistical Manual of Mental Disorders
abandoned the use of GAF scores because of, among other reasons, a “conceptual lack of clarity
. . . and questionable psychometrics in routine practice.” American Psychiatric Ass’n Diagnostic
and Statistical Manual of Mental Disorders 16 (5th ed. 2013). While it perhaps would have been
preferable for the ALJ to discuss these scores in his written decision, it does not constitute
reversible error to have failed to do so. “[T]he failure to reference a Global Assessment of
Functioning score is not, standing alone, sufficient ground to reverse a disability determination.”
Jones, 619 F.3d at 973 (“We are not aware of any statutory, regulatory, or other authority
requiring the ALJ to put stock in a GAF score in the first place.”) (citations omitted).
Accordingly, the ALJ did not err in failing to give greater consideration to Plaintiff’s GAF
scores, and the GAF scores, in and of themselves, do not demonstrate that the ALJ’s decision is
not supported by substantial evidence in the record as a whole.
Plaintiff also argues that the ALJ erred in evaluating the medical source opinions in
assessing his mental RFC. The ALJ found that Plaintiff retained the mental RFC necessary to
perform a range of unskilled work limited to simple, routine tasks, with only occasional contact
with the public and coworkers, and with only occasional changes in a routine work setting. (Tr.
17). In reaching this assessment, the ALJ afforded significant weight to the opinion of Dr. Mark
Altomari, a non-examining state agency psychiatric consultant, finding it consistent with the
record. State agency medical consultants are highly qualified experts in Social Security
disability assessment, and the ALJ must consider their findings. 20 C.F.R. §§ 404.1527(f)(2)(i);
Kamann v. Colvin, 721 F.3d 945, 951 (8th Cir. 2013). After reviewing the evidence of record,
19
Dr. Altomari opined on two separate occasions5 that Plaintiff had mild mental limitations and no
mental impairments that would significantly impact his ability to work. (Tr. 62, 549). Plaintiff
argues that the ALJ erred in affording Dr. Altomari’s opinions significant weight because the
opinions were issued two or more years prior to the ALJ’s March 2015 decision. (Doc. 33 at
10). Plaintiff alleges that Dr. Altomari did not have the benefit of reviewing the evidence of
record submitted after that time, which he argues indicated more severe limitations than opined
by Dr. Altomari. Id.
Plaintiff did submit additional evidence after Dr. Altomari reviewed the record, and that
evidence indicated that there were occasions when Seavey experienced greater limitations than
opined by Dr. Altomari, the most salient of which was one episode when Seavey went to the
emergency room because he was experiencing suicidal thoughts. (Tr. 553-58). Although this
was an episode of greater depression than the mild to moderate depression typically experienced
by Plaintiff, the record indicates that it was a transient incident. The hospital charts from that
visit indicate that Plaintiff reported feeling better quickly, that he was pleasant and cooperative
throughout the visit, and by the next morning he denied any active suicidal ideation, and
indicated that it had been an instance of “fleeting thoughts.” (Tr. 557-58). Plaintiff was
discharged from the hospital 14 hours after he was admitted with instructions to follow up with
his own doctors. (Tr. 563). This episode appears to have been a one-time event, and does not
indicate that Plaintiff’s condition was materially different than it was during the time period
reviewed by Dr. Altomari. Furthermore, at the hearing before the ALJ, Seavey testified that his
condition had not changed during the two-and-a-half years prior to the date of the hearing. (Tr.
48). The hearing was held on March 3, 2015, and Dr. Altomari’s most recent opinion was given
5
Dr. Altomari issued one opinion on March 9, 2012, as part of Seavey’s first application for disability benefits, and
a second opinion on April 8, 2013, for use in Seavey’s second application, which is the one at issue in this case. (Tr.
62, 549).
20
April 8, 2013, well within that two-and-a-half year time frame. Additionally, Plaintiff’s
treatment records from appointments with Dr. Sparks indicate that throughout the period in
question, Plaintiff was consistently alert and oriented with normal attention, memory,
concentration, and appropriate fund of knowledge. (Tr. 302, 294, 291, 645, 665, 670, 674, 676,
681, 767). Throughout this same period Plaintiff regularly reported that he was feeling well and
not experiencing anxiety. (Tr. 293, 294, 290, 635, 629, 630, 623, 681, 675, 676, 673, 669, 670,
664, 665). In fact, only twice during this period did Plaintiff mention feeling notable stress,
depression, or anxiety at his appointments with Dr. Sparks, and those visits were immediately
after his trip to the emergency room. (Tr. 640, 642). The undersigned finds that the ALJ
properly relied on Dr. Altomari’s opinion because he is a qualified medical source, and his
opinion is consistent with the medical evidence in the record as a whole.
Plaintiff also argues that it was reversible error for the ALJ to give significant weight to
the opinion of Dr. Christopher Maglio, a consultative examiner who opined that Seavey may
have difficulties getting along with superiors, but then fail to include that limitation in his RFC.
(Doc. 33 at 10). Dr. Maglio’s opinion stated that Plaintiff reported periodic impairment in social
interactions that could indicate that he “may” have “minimal” difficulty getting along with peers
or superiors. (Tr. 660). However, Dr. Maglio’s opinion also stated that Plaintiff “denied having
difficulties getting along with people.” (Tr. 659). In the RFC, the ALJ acknowledged Plaintiff’s
mild difficulties with social interactions, and found that Plaintiff should have only occasional
contact with the general public and coworkers. (Tr. 17). Plaintiff contends that the ALJ should
have included a similar restriction on contact with superiors. However, an ALJ who specifically
addresses the areas in which he found a limitation and is silent as to those areas in which no
limitation is found is believed to have implicitly found no limitation in the latter. See Depover,
21
349 F.3d at 567-68. Having carefully reviewed the record, I believe the ALJ implicitly found
that Plaintiff was not limited in this area. The record contains numerous instances in which
Plaintiff denied having difficulty getting along with superiors, a self-assessment that was
corroborated by the information provided by third parties. For example, in his Function Report,
Plaintiff indicated that he does not have trouble getting along with others, and has no difficulty
following instructions. (Tr. 191). In the Third Party Function Report provided by Plaintiff’s
friend MaLinda Crawford, she indicated that Plaintiff generally gets along well with others, and,
more specifically, that he gets along “good” with authority figures such as police officers,
bosses, or landlords. (Tr. 210). The record does not support a supervisor-related limitation in
the RFC, and the ALJ did not err by omitting such a limitation.
Finally, Plaintiff asserts that the ALJ should have included functional limitations in his
RFC to accommodate his alleged difficulties with reading and writing. Plaintiff argues that if the
ALJ had done so, the jobs identified by the VE would have been eliminated. The ALJ noted that
Plaintiff had a limited education,6 and the RFC which the ALJ assigned to Plaintiff
accommodated his intellectual functioning difficulties to the extent the ALJ found them credible,
as he limited Plaintiff to simple, routine tasks, with only occasional changes in routine. (Tr. 17,
24). See Tindell v. Barnhart, 444 F.3d 1002, 1007 (8th Cir. 2006) (“The ALJ included all of
Tindell’s credible limitations in his RFC assessment, and the ALJ’s conclusions are supported by
substantial evidence in the record.”). There is substantial evidence in the record to support a
conclusion that Plaintiff’s allegations of serious difficulties with reading and writing were not
credible. Dr. Altomari observed in 2012 that Plaintiff experienced no problem completing a
daily activities form despite complaining of struggles with reading. (Tr. 551). Dr. Maglio
6
Mr. Seavey completed the eleventh grade (Tr. 218), and reported that he has problems with reading and writing.
(Tr. 48).
22
observed in 2014 that Plaintiff had been able to follow simple written instructions without
hesitation. (Tr. 660). Additionally, Plaintiff’s friend Malinda Crawford, in her Third Party
Function Report, indicated that one of Plaintiff’s hobbies is reading, and that he does so “very
well.” (Tr. 209). Accordingly, the ALJ’s finding that Plaintiff retained the mental RFC
necessary to perform a range of unskilled work limited to simple, routine tasks, with only
occasional contact with the public and coworkers, and with only occasional changes in a routine
work setting is supported by substantial evidence in the record as a whole.
V. CONCLUSION
For all of the foregoing reasons, the Court finds the ALJ’s decision is supported by
substantial evidence. Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the
Commissioner of Social Security is AFFIRMED.
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 14th day of March, 2018.
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