Perfetto v. Saul

Filing 16

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner be AFFIRMED. A separate Judgment shall accompany this Memorandum and Order. Signed by Magistrate Judge John M. Bodenhausen on 9/9/2020. (KEK)

Case: 2:19-cv-00071-JMB Doc. #: 16 Filed: 09/09/20 Page: 1 of 30 PageID #: 870

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
PAUL P.,
Plaintiff,
v.

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

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No. 2:19 CV 71 JMB

MEMORANDUM AND ORDER
This action is before the Court pursuant to the Social Security Act, 42 U.S.C. §§ 401, et
seq. (“the Act”). The Act authorizes judicial review of the final decision of the Social Security
Administration denying Plaintiff Paul P.’s ("Plaintiff") applications for disability insurance
benefits under Title II, 42 U.S.C. §§ 401 et seq. and supplemental security income, Title XVI, 42
U.S.C. §§ 1381, et seq. All matters are pending before the undersigned United States Magistrate
Judge with the consent of the parties, pursuant to 28 U.S.C. § 636(c). Substantial evidence
supports the Commissioner’s decision, and therefore it is affirmed. See 42 U.S.C. § 405(g).
I.

Procedural History
On July 20, 2016, Plaintiff filed applications for disability benefits, arguing that his

disability began on July 26, 2015,1 as a result of gout, arthritis, partial right elbow replacement,

1

Before the Commissioner, Plaintiff initially claimed a disability onset date of July 26, 2015.
While still before the Commissioner, and "upon consultation and through his attorney, [he]
amended the alleged onset date … to January 19, 2016." (Tr. 51, 121, 159) In his brief before
this Court, and without citation to authority, "reinstates his original alleged onset date of
disability to July 26, 2015." (ECF No. 12 at 4)
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bilateral and cubital carpal tunnel syndrome, high blood pressure, and right shoulder pain.2 (Tr.
197, 269-282) On February 2, 2017, Plaintiff’s claims were denied upon initial consideration. (Tr.
196-202) Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”). Plaintiff
appeared at the hearing (with counsel) on August 29, 2018, and testified concerning the nature of
his disability, his functional limitations, and his past work. (Tr. 117-57) The ALJ also heard
testimony from Kent Granat, a vocational expert (“VE”). (Tr. 141-52, 399-400) The VE opined
as to Plaintiff’s ability to perform his past relevant work and to secure other work in the national
economy, based upon Plaintiff’s functional limitations, age, and education. (Id.) After taking
Plaintiff’s testimony, considering the VE’s testimony, and reviewing the rest of the evidence of
record, the ALJ issued a decision on December 6, 2018, finding that Plaintiff was not disabled,
and therefore denying benefits. (Tr. 48-63)
Plaintiff sought review of the ALJ’s decision before the Appeals Council of the Social
Security Administration (“SSA”). (Tr. 1-6) Plaintiff submitted additional medical evidence which

2

Plaintiff did not list obesity as a disabling impairment in his application, his request for
reconsideration, his disability reports, or mention obesity at the hearing. Failure to allege a
disabling impairment in an application for disability benefits is a significant factor in
determining the severity of an alleged impairment. See, e.g., Dunahoo v. Apfel, 241 F.3d 1033,
1039 (8th Cir. 2001) (holding fact that claimant did not allege disabling condition in his
application is significant, even if evidence of the impairment is later developed); Sullins v. Shala,
25 F.3d 610, 604 (8th Cir. 1994) (finding it "noteworthy that [the claimant] did not allege a
disabling mental impairment in her application for disability benefits, nor did she offer such an
impairment as a basis for disability at her hearing.") (internal citation omitted). See also Kliber
v. Social Sec. Admin. 794 F.Supp.2d 1026, 1040 (D. Minn. 2011) (citing the failure to allege a
condition in disability reports or testify to the condition at the hearing as support for ALJ's
conclusion that the condition was not severe). Nonetheless, the ALJ considered Plaintiff's
obesity in assessing Plaintiff's Residual Functional Capacity and rendering her ultimate decision.
(Tr. 58-59)
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was not before the ALJ when she decided Plaintiff's case on December 6, 2018.3 The Appeals
Council did not consider the additional medical evidence, finding that it did not relate to the period
at issue, July 27, 2015, through December 6, 2018. On July 18, 2019, the Appeals Council denied
review of Plaintiff’s claims, making the December 6, 2018, decision of the ALJ the final decision
of the Commissioner. Plaintiff has therefore exhausted his administrative remedies, and his appeal
is properly before this Court. See 42 U.S.C. § 405(g).
In his brief to this Court, Plaintiff raises two issues. First, Plaintiff argues that the ALJ
failed to consider a closed period of disability. Second, he argues that the ALJ’s Residual Function
Capacity (“RFC”) determination is not supported by substantial evidence. The Commissioner
filed a detailed brief in opposition.
As explained below, the Court has considered the entire record in this matter. Because the
decision of the Commissioner is supported by substantial evidence, it will be affirmed.
II.

Medical Records
The administrative record before this Court includes medical records concerning Plaintiff’s

health treatment from August 5, 2014, through November 28, 2018. The Court has considered the
entire record. The following is a summary of pertinent portions of the medical records relevant to
the matters at issue in this case.
A.

International Eyecare Center – Drs. Kenneth Mueller and Elizabeth Monroe
(Tr. 69-92, 104-08, 722-36)

Between May 1 through September 11, 2018, optometrists Elizabeth Monroe and Kenneth
Mueller treated Plaintiff's eye problems.

3

The additional evidence included treatment records from Dr. Robert Jackson dated January 3
through April 24, 2019 (Tr. 16-34, 42-45) and Washington University Ophthalmology dated
January 10 through May 6, 2019. (Tr. 8-15, 35-41)
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On May 1, 2018, Plaintiff presented to establish eye care. Dr. Monroe diagnosed Plaintiff
with iridocyclitis, the swelling and irritation of the uvea. On May 17, 2018, Plaintiff received
follow-up treatment.

Dr. Monroe prescribed medication.

Plaintiff reported significant

improvement. During treatment on June 7, 2018, examination of Plaintiff's eyes showed mild
symptoms with soreness, and Dr. Monroe restarted his Lotemax prescription.
On June 26, 2018, Plaintiff reported having periods of painful, burning eyes and
experiencing light sensitivity. Dr. Monroe dilated Plaintiff's eyes and opined that Plaintiff's eye
dryness was caused by his steroid use. Examination on July 17, 2018, revealed resolved primary
iridocyclitis. On September 11, 2018, Plaintiff returned for follow-up treatment.
B.

Hannibal Clinic – Drs. Robert Jackson, Leslie McCoy, and Michael Tentori
(94-103, 113-16, 503-99, 642-60, 738-47)

Between August 5, 2014, through November 28, 2018, Drs. Robert Jackson, D.O., Leslie
McCoy, and Michael Tentori treated Plaintiff's chronic gout,4 bilateral uveitis, and elevated blood
pressure.
On August 5, 2014, Dr. Tentori treated Plaintiff for high blood pressure. Plaintiff reported
being off his medications.
In follow-up treatment on August 14, 2014, Dr. Jackson counseled Plaintiff to lose weight.
Plaintiff reported having five to six gout attacks a year. Examination showed some generalized
tenderness of Plaintiff's feet without gouty tophi or significant bony deformity. Dr. Jackson

4

Gout is classified as a type of inflammatory arthritis. http://www.cdc.gov/baiscs/gout.htm.
"Gout is precipitation of monosodium urate crystals into tissue, usually in and around joints, most
often causing recurrent acute or chronic arthritis." Id. "Unlike most types of arthritis, which are
chronic, gout is typically episodic, characterized by painful flares lasting days/weeks followed by
long periods without symptoms." Id. Risk factors for gout include cardiovascular disease,
diabetes, renal disease, hypertension, obesity, and prior joint injury. Id.
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continued Plaintiff's medication. During treatment on November 6, 2014, Plaintiff reported having
bilateral foot pain and ongoing recurrent gout attacks, causing him to miss some work. Dr. Jackson
administered injections on both of Plaintiff's feet and urged him to lose weight, fifteen to twenty
pounds and to consider an aquatic exercise program.
On February 12, 2015, Plaintiff reported having a gout flare-up in his right foot despite
taking Uloric and prednisone daily. In follow-up treatment on June 4, 2015, Plaintiff reported
intermittent gout attacks. Dr Jackson continued Plaintiff's medications. On July 2, 2015, Plaintiff
reported his gout being under reasonably good control and starting a new, less physically
demanding job. Plaintiff returned for a recheck on August 20, 2015, and reported having a gout
attack which subsided spontaneously with continued use of Uloric.
On September 14, 2015, Plaintiff established care with Dr. McCoy and reported wanting
to lose weight and being unable to use his elbow. Dr. McCoy noted that she could not examine
Plaintiff's right arm other than to note his arm was braced. In follow-up treatment on October 13,
2015, Dr. McCoy noted improvement in Plaintiff's blood pressure and diagnosed Plaintiff with
hypertension and continued his medication.
On November 5, 2015, Plaintiff returned to Dr. Jackson for a chronic gout recheck.
Plaintiff reported having a recent mild attack in his great right toe which subsided spontaneously
after a few days. Examination showed mild to moderately edematous in his lower extremities.
Plaintiff reported being on leave from work after having open reduction and internal fixation
surgery and wearing a right upper extremity immobilizer. Dr. Jackson continued Uloric and
encouraged Plaintiff to start walking at least thirty minutes each day. Plaintiff returned on
December 30, 2015, and reported having some minor gout attacks in both his feet but the attacks
subsided easily with a small dose of prednisone.

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An Electromyography and Nerve Conduction Report dated February 3, 2016, showed
evidence of right ulnar and median sensorimotor neuropathy. The next study on May 25, 2016,
showed improvement.
On February 25, 2016, Plaintiff returned for a chronic gout recheck and reported his gout
being "under good control" and experiencing situational depression. (Tr. 577) Dr. Jackson
continued Plaintiff's medication regimen.
Plaintiff reported that his blood pressure medicine was working well during treatment with
Dr. McCoy on April 12, 2016.
On April 21, 2016, Plaintiff reported having no gout attacks while taking Uloric. Plaintiff
returned on May 26, 2016, for evaluation of his post-traumatic osteoarthritis of his right wrist,
elbow, and shoulder, associated with nerve entrapment of his feet. Dr. Jackson noted that the most
recent nerve conduction study showed improvement and his velocities back to normal, and Dr.
Colbert's evaluation found that Plaintiff's elbow and wrist would not need any further surgical
intervention. Plaintiff reported not having any gout flare-ups. Dr. Jackson found his gout to be
intercritical.
During treatment on June 7, 2016, Plaintiff reported having disability of his right upper
extremity and no recent gout attacks. Dr. Jackson noted that "[h]is [P]eak performance assessment
was completed and revealed there was a virtually a nonfunctioning right upper extremity…. He
could not even lift a 4 lb. weight off the floor." (Tr. 742) Plaintiff returned on June 28, 2016, and
reported not experiencing a gout flare-up. Dr. Jackson found Plaintiff had refractory chronic gout.
On August 4, 2016, Plaintiff received follow-up for post-traumatic osteoarthritis of his right
shoulder and elbow, and Dr. Jackson refilled his Hydrocodone. Dr. Jackson also provided Plaintiff
complimentary samples of Uloric.

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On September 8, 2016, Plaintiff reported having foot pain and occasional, brief mild gout
episodes of his feet. Dr. Jackson continued his Uloric medication. During treatment on October
6, 2016, Plaintiff reported no gout attacks, taking Uloric daily, and wanting to lose weight. Dr.
Jackson found Plaintiff's chronic gout was currently stable.
On November 11, 2016, Dr. McCoy completed a physical examination without any
abnormal findings.
Plaintiff returned on November 30, 2016, and reported not having any gout attacks and
taking Uloric daily. On April 10, 2017, Plaintiff returned for a gout recheck. During treatment on
July 20, 2017, Plaintiff reported that his gout was well controlled. Physical examination showed
trace nonpitting edema in his feet and lower legs. On September 7, 2017, Plaintiff complained of
chronic pain in his right wrist, arm, and shoulder. Examination showed pain with flexion and
extension of Plaintiff's right wrist with decreased grip strength on the right side. Dr. Jackson
continued his medication regimen and indicated that he would retry sending Hysingia through
insurance company to provide Plaintiff a long-acting pain medication.
Plaintiff returned on November 21, 2017, complaining of a gout episode. Dr. Mian Rizwan
treated Plaintiff for Dr. Jackson. Dr. Rizwan found Plaintiff had a restricted range of motion in
his left foot and that Plaintiff seemed to be having acute gouty arthritis. During follow-up
treatment on December 29, 2017, Plaintiff reported having pain in his right elbow and decreased
range of motion. Plaintiff indicated that his gout had been under control, and stated that "he really
only feels it in his left ankle but his feet have been okay." (Tr. 769)
Plaintiff returned on March 8, 2018, complaining of some mild to moderate episodic gout
attacks in his lower extremities. In a Second Dictation for Dr. Jackson, Dr. Kendra Martin noted
that Plaintiff "has had severe reaction to other gout medications in the past and is currently on

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Zurampic and high dose Uloric. He states that he is doing fairly well but had an acute flare about
2-3 weeks ago." (Tr. 767) On March 22, 2018, Dr. Jackson treated Plaintiff for acute scleritis of
his left eye. Plaintiff reported experiencing some photophobia and tearing of his eye with pain.
Plaintiff returned on May 3, 2018, and denied having a recent gout flare-up. Dr. Jackson
found that Plaintiff had developed bilateral uveitis in his left eye, and this diagnosis had been
confirmed by Dr. Monroe, an optometrist. In follow-up treatment on June 7, 2018, Dr. Jackson
rechecked Plaintiff's uveitis and noted that Plaintiff's Peak performance functional assessment
revealed "virtually a nonfunctioning right upper extremity. He is right handed. He could not even
lift a 4 lb. weight off the floor." (Tr. 756) Dr. Jackson found that Plaintiff had not experienced
any recent gout attacks but his uric acid level was elevated. Plaintiff returned on June 28, 2018,
requesting a disability letter. Dr. Jackson noted that Plaintiff had not experienced a gout flare-up
and instructed Plaintiff to continue his gout medications.
During a recheck on September 27, 2018, Plaintiff reported that "[h]is disability hearing
was successful." (Tr. 95) Examination showed his weight was excessive with a body mass index
greater than 46, falling into a high risk of obesity level. Dr. Jackson found that Plaintiff had
generalized tenderness of his ankles and feet but no obvious gouty tophi or swollen growths. Dr.
Jackson prescribed Salagen and Hysingia. Plaintiff returned on November 28, 2018, complaining
of a gout attack and that Uloric resolved the gout attack.
C.

Hannibal Regional Hospital and Hannibal Regional Medical Group
(Tr. 418-70)

An MRI of Plaintiff's right shoulder showed no evidence of a fracture but fraying of the
tendon.
On January 17, 2015, Plaintiff presented in the emergency room complaining of sudden
Loss of vision. The emergency room doctor diagnosed Plaintiff with alcohol intoxication with
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transient vision loss.
On July 26, 2015, Plaintiff presented in the emergency room and reported injuring his right
elbow and shoulder in a fall at work. An x-ray showed a subluxed dislocated elbow with radial
head fracture. An CT scan showed a dislocated elbow with chip fractures.
On September 28, 2015, Plaintiff presented at Hannibal Regional Medical Group with a
right elbow pain. Plaintiff reported not progressing in physical therapy due to pain and not taking
any medications. Dr. Luvell Glanton prescribed Nucynta and encouraged Plaintiff to lose weight.
On October 15, 2015, Dr. Glanton performed an open reduction internal fixation on
Plaintiff's right shoulder.
D.

Midwest Orthopedic Specialists – Dr. Christopher Bieniek (Tr.471-90, 748-98)

On July 26, 2015, Dr. Christopher Bieniek repaired Plaintiff's right elbow dislocation by
performing open reduction and internal fixation surgery.
On August 11, 2015, Plaintiff presented for follow-up treatment. Dr. Bieniek explained
that Plaintiff would start physical therapy to improve his range of motion. Dr. Bieniek noted
improvement in Plaintiff's range of motion on September 8, 2015, and continued active assisted
range of motion through therapy. On September 29, 2015, Dr. Bieniek found improvement with
Plaintiff's range of motion to his elbow and prescribed a turnbuckle splint to improve his extension.
Examination on October 20, 2015, showed Plaintiff's elbow arc of motion was improving and
significant pain with impingement positions of his right shoulder. Dr. Bieniek injected Plaintiff's
shoulder with lidocaine to diminish his pain.
Plaintiff returned on November 10, 2015, complaining of right shoulder and elbow pain.
An MRI showed a healed distal radius fracture and right shoulder rotator cuff tendinitis and
bursitis. Dr. Bieniek noted that he would schedule Plaintiff for right shoulder surgery. Plaintiff

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presented for treatment on December 15, 2015, after having right shoulder surgery. Dr. Bieniek
found Plaintiff had good elbow range of motion and 60% active motion of his right shoulder and
indicated that Plaintiff could return to work with no lifting restrictions. Dr. Bieniek directed
Plaintiff to continue his home exercise program.
In follow-up treatment on January 19, 2016, Plaintiff reported hurting his elbow. An x-ray
showed no change of Plaintiff's elbow fractures and evidence of minor arthritic changes. Dr.
Bieniek placed Plaintiff on a ten pound right arm lift limit for one week. On February 16, 2016,
Plaintiff returned complaining of discomfort in his right arm and hand. Nerve conduction studies
showed prolonged sensory nerve action on his right arm. Dr. Bieniek recommended carpal tunnel
release surgery.
On March 22, 2016, Plaintiff received treatment post carpal tunnel release surgery on his
right hand. Dr. Bieniek noted he would continue to keep Plaintiff on light duty activity with a
seven pound lifting limit with his right arm. On April 12, 2016, Dr. Bieniek observed that Plaintiff
had no trouble moving his elbow, wrist, and fingers, and his face showed no evidence of any pain
but "when [he] examined him and moved him even slightly, he has all those grimacing looks on
his face. It is my opinion that he is exacerbating his symptoms, i.e., symptom magnification." (Tr.
471) Examination showed excellent range of motion of Plaintiff's right shoulder. Dr. Bieniek
opined that Plaintiff had reached maximum medical improvement, and there was no more
treatment he could provide to Plaintiff so he released Plaintiff from his care without any
restrictions.
E.

Mark Twain Behavioral Health (Tr.491-502)

Between March 7 and April 14, 2016, Plaintiff received psychosocial therapy treatment.
Plaintiff reported being angry and resented the hardship placed on his family and finances.

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Plaintiff indicated that he could not use his right arm very well, Plaintiff reported he should find
out the percentage of disability from Dr. Bieniek so he can settle his case. During the last session,
Plaintiff reported being upset because Dr. Bieniek released him to full duty and found that he could
return to work.
F.

UP – Missouri Orthopaedic Institute – Dr. Matthew Smith (Tr. 605-41, 661-62)

On May 31, 2016, Dr. Matthew Smith evaluated Plaintiff's right shoulder and elbow.
Plaintiff reported that his symptoms had not improved following the carpal and cubital tunnel
release surgery in March 2016, and "he was last seen in April 2016 where the physician stated he
was prescribed to return to full duty with no restrictions." (Tr. 630) Plaintiff indicated that he
could not complete his work duties. Examination of Plaintiff's right shoulder showed diffuse
tenderness throughout and significant crepitus with range of motion. Dr. Smith found that
Plaintiff's significant shoulder pain and limited range of motion were attributable to his post
traumatic arthritis and ossification formation and recommended replacement of the radial head of
his right elbow and a revision of the nerve entrapment. Dr. Smith explained that Plaintiff's recent
EMG demonstrated that his median and ulnar nerves were showing recovery and that he would
expect continued improvement over time.
On July 15, 2016, Dr. Smith performed right elbow replacement of radial head and lateral
ligament repair surgery. During a postoperative visit on July 28, 2016, Plaintiff reported doing
well and experiencing some pain caused by his splint. Dr. Smith transitioned Plaintiff to a hinged
elbow brace. On August 25, 2016, Plaintiff reported his pain was decreasing. Dr. Smith instructed
Plaintiff to work on a progressive range of motion and limited him to no significant lifting. During
follow-up treatment on September 22, 2016, Plaintiff reported having some pain but "more sore
than pain" and his elbow improving. (Tr. 610)

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On November 3, 2016, Plaintiff reported pain improvement but he had some discomfort if
he hit or placed weight on his right elbow. Dr. Smith observed that Plaintiff had "some
unexplained tremor during motion that seems to be voluntary." Dr. Smith found that Plaintiff was
progressing well and slowly working on his range of motion. Dr. Smith indicated that he would
like to have Plaintiff "get to moderate levels of work." (Tr. 635) On December 29, 2016, Plaintiff
reported his range of motion was improving but he could not perform significant lifting, pushing,
or pulling. Examination showed good grip strength but Plaintiff lacked a full range of motion. Dr.
Smith opined that Plaintiff could slowly continue to recover some motion but he should avoid
heavy lifting or impact. Dr. Smith released Plaintiff to work with no heavy lifting or impact
restrictions. In a December 29, 2016, letter, Dr. Smith stated that Plaintiff had been released from
care to go back to work with permanent right upper extremity restrictions of no pushing/pulling
and a five pound lifting restriction.
III.

Opinion Evidence
A.

Function Report - Adult (Tr. 363-70)

Plaintiff reported that his gout limited his walking and standing, and his ability to drive a
car. Plaintiff reported taking his son to after school activities and heling him complete his
homework, doing the laundry, and shopping. Plaintiff indicated that he either walks, drives a car,
or rides in a car when he goes outside every day. Plaintiff reported his right arm injury prevents
him from throwing a football or baseball, fishing, hunting, or camping. Plaintiff indicated that he
could walk a half mile so long as he was not having a gout episode.
B.

Function Report Adult – Third Party (Tr. 341-48)

In a Function Report Adult – Third Party, Plaintiff's wife indicated that his normal daily
activities included completing a lot of paperwork, making phone calls, doing online research, and

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going to doctor's appointments. She indicated that Plaintiff helped take care of their son by
providing rides, helping with homework, preparing simple meals, doing the laundry, running
errands, and caring for the cat. As his social activities, Ms. P indicated that Plaintiff helped
organize a fundraiser and goes to the library.
C.

Treating Source Statement - Dr. Robert Jackson (Tr. 745-47)

In a July 16, 2018, To Whom It May Concern letter, Dr. Jackson opined that although
Plaintiff had been undergoing treatment for chronic gout for eight years, he had "failed to achieve
therapeutic goals and control of his uric acid level despite dietary restrictions." (Tr. 745) Dr.
Jackson further found that Plaintiff had not been able to return to gainful employment for several
years. Dr. Jackson opined that Plaintiff had zero tolerance for climbing, bending, squatting,
prolonged siting, or standing.
D.

Dr. David Volarich (Tr. 664-87)

Dr. Volarich reported that he had reviewed Plaintiff's medical records and examined
Plaintiff in order to complete an independent medical examination. In an opinion dated April 25,
2017, Dr. Volarich opined that Plaintiff should not lift over five pounds overhead with the right
upper extremity; he could handle up to fifteen pounds up close; he had limited overhead reaching
and pushing and pulling with his right upper extremity; and he could not perform any repetitive
handling, fingering, pushing, or pulling; and he could not be exposed to vibration. Plaintiff
indicated that he was still working part-time in a light duty job. Plaintiff reported that when he
was not having a gout flare-up, "he could perform his activities of daily living without much
difficulty." (Tr. 671) Dr. Volarich observed that Plaintiff could walk across the examination room
floor without a limp, and he could toe-walk reasonably well and tandem walk without a problem.
Dr. Volarich further advised Plaintiff "to pursue an appropriate stretching, strengthening, and

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range of motion exercise program in addition to non-impact aerobic conditioning such as walking,
biking, or swimming to tolerance daily." (Tr. 683) Dr. Volarich further opined that Plaintiff might
become permanently and totally disabled.
E.

Vocational Rehabilitation Evaluation – Timothy Lalk (Tr. 688-707)

On August 18, 2017, Timothy Lalk, a vocational rehabilitation counselor, completed an
evaluation of Plaintiff's vocational rehabilitation potential and assessed his ability to return to
employment. Mr. Lalk reported that he had reviewed Plaintiff's medical records5 and interviewed
Plaintiff. Mr. Lalk opined that Plaintiff could not work due to his gout flare-ups causing him to
miss work. Mr. Lalk observed that Plaintiff did not appear to have any difficulty walking, standing,
sitting, or changing positions. Plaintiff reported having ten to twelve gout flare-ups each year,
lasting three to five days, requiring him to miss three work days. Plaintiff reported not being able
to lift more than ten pounds and planning on calling "the employment office tomorrow." (Tr. 703)
F.

Peak Sport & Spine (Tr. 708-20)

On May 21, 2018, Wendy Nall, a physical therapist at Peak Sport & Spine, completed a
functional capacity evaluation at counsel's request. Ms. Nall found that, based on the objective
range of motion testing, Plaintiff had "impairments in his right wrist elbow and shoulder that limit
his ability to grip, push, pull, and carry items n many functional planes of motion." Ms. Nall
further found that his documented impairments of his upper right extremity would "limit his ability
to actively raise his arm with a load safely. Even at 5 pounds, his lack of grip strength and fine
motor coordination would pose a safety issue." (Tr. 709)

5

Mr. Lalk indicated that the last treatment record from Dr. Jackson was dated August 4, 2016,
even though the record shows Dr. Jackson treated Plaintiff on September 8, October 6, and
November 30, 2016, and April 10, 2017. (Tr. 642-60, 785-88)
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IV.

The Hearing Before the ALJ
The ALJ conducted a hearing on August 29, 2018. Plaintiff was present with his attorney

and testified. (Tr. 117-57) The VE also testified at the hearing. (Tr. 141-51) At the outset of the
hearing, Plaintiff's counsel noted no objections to the proposed exhibits, and specifically noted on
the record that Plaintiff was not alleging any listing. (Tr.32-33)
A.

Plaintiff’s Testimony (Tr. 31-53, 59-60)

Plaintiff began is testimony by noting that he lives with his wife and son. (Tr. 122) Plaintiff
testified that he drives his son to school every day. Plaintiff graduated from high
school and has a Class A driver's license. (Tr. 127-28) Plaintiff testified that he is right-handed.
(Tr. 137)
Plaintiff testified that he last worked twice a week in May 2017, as a driver delivering
newspapers and he stopped working when the job moved to Columbia. (Tr. 123, 125) His job
duties included delivering bundles of newspapers weighing eight pounds. (Tr. 128-29) Plaintiff
injured both his wrists and elbow while working as a truck driver. (Tr. 125-26) Prior to that job,
he drove a charter bus. Plaintiff also worked as a mixer for a power company, and his job duties
included mixing oils and chemicals. (Tr. 126) Plaintiff also testified that he worked as an overthe-road truck driver. (Tr. 127)
Plaintiff testified that in 2015, he injured his shoulder and wrists requiring surgical repair
and thereafter some physical therapy. (Tr. 130) Plaintiff returned to work but he injured his arm
requiring another surgical repair, a partial right elbow replacement by Dr. Smith. (Tr. 130. 137)
Plaintiff testified that he experiences constant pain as a result of his injuries and taking pain
medication helps somewhat. (Tr. 131) Plaintiff indicated that he has problems lifting items with
his right hand and straightening his arm, and Dr. Smith had imposed an eight-pound lifting

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restriction. (Tr. 131, 137) Plaintiff testified that he cannot pick up a gallon of water with his right
hand. (Tr. 132, 137)
Plaintiff testified that Dr. Jackson started treating him in 2010.. (Tr. 132) Plaintiff
indicated that his gout is better but when he experiences a gout attack, he is bedridden. (Tr. 133)
Plaintiff explained that he experiences gout attacks six to ten times a year, lasting three to five
days. Plaintiff testified that he also receives medical treatment for arthritis, high blood pressure,
back and knee problems, anxiety, depression, and sleep apnea. (Tr. 135-36)
B.

The VE’s Testimony

The VE identified Plaintiff's past work as a mixer operator, a tool mill worker, a truck
driver, and over-the-road truck driver. (Tr. 142)
The ALJ asked the VE a series of hypothetical questions to determine whether someone
with Plaintiff’s age, education, work experience, and specific functional limitations would be able
to find a job in the local or national economy. (Tr. 145-50) First, the ALJ asked the VE to assume
a hypothetical individual limited to work at the light exertional level with occasional pushing and
pulling with the bilateral upper extremities and reaching and handling with the dominant right
upper extremity; frequent fingering with the right upper extremity; and no exposure to
concentrated vibration. The VE responded that such hypothetical person could not perform any
of Plaintiff's past work because all of the jobs were above the light exertional level. (Tr. 145) The
VE further opined that such individual could perform jobs such as a counter clerk, a bakery
inspector, and a laminator grader. (Tr. 146)
Next, the ALJ asked the VE to identify jobs the person could perform if the hypothetical
person also had additional restrictions of lifting no more than eight pounds with the dominant right
upper extremity and no pushing and pulling with the right upper extremity. The VE identified the

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counter clerk, information clerk, and sales attendant jobs such hypothetical person could perform.
(Tr. 147) Lastly, the VE indicated that if the hypothetical person was further restricted to
understand, remember and carry out simple instructions consistent with unskilled work the
hypothetical persons could still perform the jobs he identified.
In response to the ALJ's question regarding unscheduled breaks, the VE indicated that a
person absent from his workstation more than 15% during the workday would be precluded from
competitive employment. (Tr. 148) The ALJ further opined that if a person is absent more than
one to two days a month, competitive employment is precluded. (Tr. 149-50)
V.

The ALJ’s Decision
In a decision dated December 6, 2018, the ALJ determined that Plaintiff was not disabled

under the Social Security Act. (Tr. 47-63) The ALJ determined that Plaintiff had severe
impairments of post traumatic degenerative arthritis of the dominant right upper extremity with a
history of a fracture to the right elbow with surgery, fracture to right wrist and right rotator cuff
injury with surgery, history of bilateral carpal tunnel syndrome with surgery on the right upper
extremity, gouty arthritis, osteoarthritis, and obesity. (Tr. 54) The ALJ determined that Plaintiff
had a RFC to perform light work with the following modifications: (1) he can lift no more than
eight pounds with the dominant right upper extremity; (2) he can occasionally push and pull with
the left upper extremity; (3) he cannot push and pull with the right upper extremity; (4) he can
occasionally reach or handle with the dominant right upper extremity; (5) he can frequently finger
with the right upper extremity; and (6) he must avoid concentrated exposure to vibration. (Tr. 5561)
The ALJ identified Plaintiff's past relevant work as a mixer operator, truck driver, and overthe-road trucker. (Tr. 61) The ALJ found, based on the VE's testimony, that there are other jobs

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existing in the national economy he was able to perform the requirements of representative
occupation such as a counter clerk, an information clerk, and a sales attendant. (Tr. 62) Therefore,
the ALJ found that Plaintiff was not under a disability within the meaning of the Social Security
Act. (Tr. 63)
The ALJ’s decision is discussed in greater detail below in the context of the issues Plaintiff
has raised in this matter.
VI.

Standard of Review and Legal Framework
"To be eligible for … benefits, [Plaintiff] must prove that [he] is disabled …." Baker v.

Sec’y of Health and Human Servs., 955 F.2d 552, 555 (8th Cir. 1992); see also Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Under the Act, 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 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)
and 1382c (a)(3)(A). A plaintiff will be found to have a disability "only if [his] physical or mental
impairment or impairments are of such severity that [he] is not only unable to do [her] 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." 42 U.S.C. § 423(d)(2)(A) and
1382c(a)(3)(B). See also Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
Per regulations promulgated by the Commissioner, 20 C.F.R § 404.1520, "[t]he ALJ
follows 'the familiar five-step process' to determine whether an individual is disabled…. The ALJ
consider[s] whether: (1) the claimant was employed; (2) [he] was severely impaired; (3) [his]
impairment was, or was comparable to, a listed impairment; (4) [he] could perform past relevant
work; and if not, (5) whether [he] could perform any other kind of work." Martise v. Astrue, 641

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F.3d 909, 921 (8th Cir. 2011) (quoting Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010)).
See also Bowen, 482 U.S. at 140-42 (explaining the five-step process).
The Eighth Circuit has repeatedly emphasized that a district court’s review of an ALJ’s
disability determination is intended to be narrow and that courts should "defer heavily to the
findings and conclusions of the Social Security Administration." Hurd v. Astrue, 621 F.3d 734,
738 (8th Cir. 2010) (quoting Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001)). The ALJ’s
findings should be affirmed if they are supported by "substantial evidence" on the record as a
whole. See Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008). Substantial evidence is "less than
a preponderance, but enough that a reasonable mind might accept it as adequate to support a
decision." Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008); see also Wildman v. Astrue, 596
F.3d 959, 965 (8th Cir. 2010) (same).
Despite this deferential stance, a district court’s review must be "more than an examination
of the record for the existence of substantial evidence in support of the Commissioner’s decision."
Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998). The district court must "also take into
account whatever in the record fairly detracts from that decision." Id. Specifically, in reviewing
the Commissioner’s decision, a district court is required to examine the entire administrative
record and consider:
1.
2.
3.
4.
5.
6.

The credibility findings made by the ALJ.
The claimant’s vocational factors.
The medical evidence from treating and consulting physicians.
The claimant’s subjective complaints relating to exertional and nonexertional activities and impairments.
Any corroboration by third parties of the claimant’s impairments.
The testimony of vocational experts, when required, which is based upon a
proper hypothetical question which sets forth the claimant’s impairment.

Stewart v. Sec’y of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (citation
omitted).
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Finally, a reviewing court should not disturb the ALJ’s decision unless it falls outside the
available "zone of choice" defined by the evidence of record. Buckner v. Astrue, 646 F.3d 549,
556 (8th Cir. 2011). A decision does not fall outside that zone simply because the reviewing court
might have reached a different conclusion had it been the finder of fact in the first instance. Id.;
see also McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010) (explaining that if substantial
evidence supports the Commissioner’s decision, the court "may not reverse, even if inconsistent
conclusions may be drawn from the evidence, and [the court] may have reached a different
outcome").
VII.

Analysis of Issues Presented
In his brief to this Court, Plaintiff raises two issues. First, Plaintiff argues that the ALJ

failed to consider a closed period of disability.

Second, he argues that the ALJ’s RFC

determination is not supported by substantial evidence.
A.

Closed Period of Disability

Plaintiff argues that the ALJ failed to consider a closed period of disability. Plaintiff
contends that he was unable to work since July 26, 2015, but in the alternative, he seeks to be
awarded a closed period of disability from July 26, 2015, through December 29, 2016, while he
was recovering from each of his four surgeries on his upper right extremity. Plaintiff cites the
medical evidence of his four surgeries in support.
The Commissioner may award Social Security disability benefits either on a continuing
basis, or, where a once disabling condition later ceases to be disabling, for a "closed period."
Harris v. Sec'y of Dept. of Health & Human Servs., 959 F.2d 723, 724 (8th Cir. 1992)
("[D]isability is not an all-or-nothing proposition; a claimant who is not entitled to continuing
benefits may well be eligible to receive benefits for a specific period of time."); see also, e.g.,

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Quaite v. Barnhart, 312 F. Supp.2d 1195, 1200-01 (E.D. Mo.2004) (affirming the ALJ's decision
to award disability benefits for a closed period ending on a specific date where there was
substantial evidence to support the ALJ's conclusion that Plaintiff had ceased being disabled as
of that date). If evidence presented shows that a plaintiff was unable to work for at least twelve
months, but recovered the ability to work before the decision on his claim is made, he may be
eligible for disability benefits for the time he was unable to work. To qualify for a closed period
of disability, the disabling condition must last for at least twelve months. 42 U.S.C. §
423(d)(1)(A); Karlix v. Barnhart, 457 F.3d 742, 747 (8th Cir. 2006).
The undersigned finds Plaintiff's argument for a closed period of disability difficult to
understand, because the ALJ did not deny Plaintiff's claim based on insufficient duration of an
ability to engage in substantial gainful employment, but because he has the RFC to perform work.
Because the ALJ properly determined Plaintiff not to be disabled at any time during the relevant
period, she did not err in failing to consider a closed period of disability. See Clark v. Bowen,
864 F.2d 66 (8th Cir. 1988) (per curiam). Therefore, the ALJ was not required to present a
rationale for not awarding a closed period of disability when she found Plaintiff has no disabling
condition. See SSR 82-52.
Plaintiff has failed to establish he met a closed period of disability which lasted at least
twelve months. In this matter, the ALJ determined Plaintiff retained the RFC to perform light
work with several limitations. (Tr. 55) This RFC determination must be based on medical
evidence that addresses Plaintiff's ability to function in the workplace. See Stormo v. Banrhart,
377 F.3d 801, 807 (8th Cir. 2004). The ALJ bears the primary responsibility for making the RFC
determination and for ensuring there is "some medical evidence" regarding the plaintiff's "ability
to function in the workplace" that supports the RFC determination. Lauer v. Apfel, 245 F.3d 700,

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703-04 (8th Cir. 2001). This Court is required to affirm the ALJ's RFC determination if that
determination is supported by substantial evidence on the record as a whole. See McKinney v.
Apfel, 228 F.3d 860, 862 (8th Cir. 2000). In this matter, substantial evidence supports the ALJ's
RFC determination. See Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005).
Furthermore, Plaintiff never asked the ALJ to consider a closed period of disability. See
Anderson v. Barnhart, 344 F.3d 809, 814 (8th Cir. 2003) (claimant's argument that ALJ failed to
consider his morbid obesity without merit because claimant never raised the issue in the
administrative process); see also Tate v. Colvin, 2015 WL 1262940, at **1, 4 (E.D. Mo. Mar. 19,
2015) (claimant appealed decision limiting her to closed period of disability to appeals council
before raising issue in federal court). Accordingly, there is no basis to find Plaintiff is entitled to
a closed period of disability which lasted at least twelve months.
In sum, the record before the Court does not establish that Plaintiff's surgeries on his right
upper extremity were disabling for at least twelve months during the period of July 2, 2015, to
December 29, 2016, and then ceased to be disabling, such as would have suggested an entitlement
to a closed period of disability. Accordingly, the Court finds that the lack of specific discussion
of a closed period of disability in the ALJ's decision does not warrant remand.
B.

Residual Functional Capacity

Plaintiff argues that the ALJ’s RFC is not supported by substantial evidence because "he
cannot stand and/or walk six (6) hours per day, as required by light work, as a result of chronic
gout and obesity with lower extremities edema." (ECF No. 12 at 10) Plaintiff further argues the
medical record shows that his pain resulting from chronic gout and obesity significantly impacts
his ability to stand or to walk.
According to the regulations,

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"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…."
20 C.F.R. § 404.1567(b). While "[t]he full range of light work requires standing or walking, off
and on, for a total of approximately 6 hours of an 8-hour workday," SSR 83-10 specifically
discusses the maximum standing and walking requirement per each exertional level of work. SSR
83-10. Here, the ALJ determined that Plaintiff has the capacity to perform light work but with
limitations. The ALJ determined that Plaintiff's statements about the intensity, persistence, and
limiting effects of his conditions were not entirely consistent with the medical evidence and other
evidence in the record. (Tr. 56)
At the outset, the undersigned notes that, although the ALJ found Plaintiff could perform
light work with limitations on his ability to lift, push, pull, reach or handle, finger, and be exposed
to vibration, the ALJ's RFC finding did not address Plaintiff's ability to sit, stand, or walk six hours
out of an eight-hour workday. The Eighth Circuit considered a similar situation in which the ALJ's
finding did not address Plaintiff's ability to sit, stand or walk, but included other limitations. See
Depover v. Barnhart, 349 F.3d 563, 567 (8th Cir. 2003). Although the Eighth Circuit noted a
preference that that the ALJ make specific findings as to sitting, standing, and walking, the Court
determined that the ALJ had not overlooked those functions inasmuch "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." Id.
at 567-68. The Court concluded that "[W]e believe that the ALJ implicitly found that Mr. Depover

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was not limited in these functions, and in this instance, we do not see any reason to remand to
make the findings explicit." Id.
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 specific functional
limitations in walking, sitting, standing, pushing, pulling, but did include some other physical
limitations. See Seavey v. Berryhill, 2018 WL 1317172, at *5 (E.D. Mo. Mar. 14, 2018) (finding
that although the ALJ "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,"); Linze v. Colvin,
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 work."); Biggs v. Astrue, 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.); Cook v.
Astrue, 629 F.Supp.2d 925, 933 (W.D. Mo. 2009) (rejecting the argument that the remand was
required where the ALJ described the plaintiff's RFC in terms of "light work" without a functionby-function analysis).
A claimant's RFC is the most an individual can do despite the combined effects of his

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credible limitations. See 20 C.F.R. § 404.1545. "The RFC 'is a function-by-function assessment
based upon all of the relevant evidence of an individual’s ability to do work-related activities.'"
Roberson v. Astrue, 481 F.3d 1020, 1023 (8th Cir. 2007) (quoting SSR 96-8p, 1996 WL 374184,
at *3 (S.S.A. 1996)). An ALJ’s RFC finding is based on all of the record evidence, the claimant’s
testimony regarding symptoms and limitations, the claimant’s medical treatment records, and the
medical opinion evidence. See Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010); see also 20
C.F.R. § 404.1545; SSR 96-8p (listing factors to be considered when assessing a claimant’s RFC,
including medical source statements, recorded observations, and "effects of symptoms … that are
reasonably attributed to a medically determinable impairment."). The ALJ must explain her
assessment of the RFC with specific references to the record. SSR 96-8 (the RFC assessment must
cite "specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations)" in describing how the evidence supports each conclusion). Throughout
this inquiry, the burden of persuasion to prove disability and to demonstrate RFC is on the
claimant. Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016). Disability is not determined by
the presence of impairments, but by the effect the impairments have on the individual’s ability to
perform substantial gainful activity. 20 C.F.R. §§ 404.1545(e), 416.945(e).
According to Plaintiff, the ALJ's finding that he is able to walk or stand up to six hours in
a workday is not supported by substantial evidence, because the record shows his pain from chronic
gout and obesity significantly limits his ability to walk and stand for six hours.6 However, to the
extent Plaintiff identifies records that support his allegations of pain, "[i]f substantial evidence
supports the decision, then we may not reverse, even if inconsistent conclusions may be drawn

6

The undersigned notes that Plaintiff references the medical records regarding his right arm pain
which would not necessarily impact his ability to walk and stand. The ALJ acknowledged
Plaintiff's reports of pain during treatment, especially his right arm pain.
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from the evidence and even if we may have reached a different outcome." McNamara, 590 F.3d
at 610. Based on the records before the ALJ, the Court's review of the record shows the RFC is
supported by substantial evidence, because the medical evidence establishes Plaintiff's pain from
his chronic gout and obesity did not limit his ability to walk and stand as needed to perform light
work.
The medical record lacks indication that Plaintiff was limited in his ability to function, and
in fact, shows that his pain did not significantly affect his functional abilities, including walking
and sitting. Indeed, Plaintiff's own physicians placed no sitting, standing, or walking limitations
on Plaintiff due to his pain. See Hovis v. Colvin, 2016 WL 4158867, at *9 (E.D. Mo. Aug. 5,
2016) (finding it significant that no treating source indicated plaintiff was unable to work or
imposed functional limitations on plaintiff's capacity to work); see also Bulford v. Colvin, 824
F.3d 793, 796 (8th Cir. 2016) (ultimate burden on claimant to establish RFC).
During treatment of November 5, 2015, Dr. Jackson encouraged Plaintiff to start a walking
exercise program for at least thirty minutes each day. Plaintiff consistently reported having no
gout attacks while taking Uloric during treatment with Dr. Jackson. Although Plaintiff sought
treatment for his chronic gout, his condition responded to treatment and medication. On November
5, 2015, Plaintiff reported having a recent mild attack in his great right toe but the attack subsided
spontaneously after a few days, and examination showed mild to moderately edematous lower
extremities. During treatment on March 8, 2018, Plaintiff complained of some mild to moderate
episodic gout attacks in his lower extremities. In a Second Dictation dictated for Dr. Jackson, Dr.
Martin noted that Plaintiff "has had severe reaction to other gout medications in the past and is
currently on Zurampic and high dose Uloric. He states that he is doing fairly well."

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During evaluation in April 2017, Dr. Volarich observed that Plaintiff could walk across the
examination room floor without a limp, and he could toe-walk reasonably well and tandem walk
without a problem. Dr. Volarich advised Plaintiff to start a range of motion exercise program in
addition to non-impact aerobic conditioning such as walking.
During his vocational assessment in August 2017, Mr. Lalk observed that Plaintiff did not
appear to have any difficulty walking, standing, sitting, or changing positions.
In further support, the undersigned notes that State agency physician Dr. Michael O'Day
found that Plaintiff could stand or walk six hours in an eight-hour workday. (Tr. 158-74) Dr.
O'Day opined that "[w]hile you are not capable of performing work you have done in the past, you
are able to perform work that is less demanding." (Tr. 174)
Likewise, the record shows that Plaintiff worked part time at the substantial gainful activity
level during the period of his alleged disability. Defendant is correct that such activity weighs
against the Plaintiff's disability allegations. See Medhaug v. Astrue, 578 F.3d 805, 816 (8th Cir.
2009) ("Working generally demonstrates an ability to perform substantial gainful activity."); Beyer
v. Berryhill, 2019 WL 555075, at *6 (E.D. Mo. Feb. 12, 2019). In addition, Plaintiff testified that
he stopped working because his employer changed locations. Medhaug, 578 F.3d at 816-17
(leaving work for reasons other than disability.); Black v. Apfel, 143 F.3d 383, 387 (8th Cir. 1998)
(determination that claimant not disabled supported in part by facts that claimant (1) left job due
to lay-off, not her medical condition, and (2) continued to seek work after alleged onset date.);
Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir. 1992) (claimant "worked for several years
despite complaining of pain she now claims disabling, and concluded that it was the plant-closing,
not her physical condition, that forced Browning out of work."); Ford v. Berryhill, 2017 WL
3503474, at *9 (E.D. Mo. Aug. 16, 2017).

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As required by SSR 02-1p, the ALJ also considered the combined effects of Plaintiff's
obesity with his other impairments "even though no treating or examining medical source has
specifically attributed additional or cumulative limitations to [Plaintiff's] obesity." (Tr. 58) Here,
the ALJ found Plaintiff's obesity to be a severe impairment and his body mass index "had been at
greater than Level III obesity throughout the period of alleged disability." (Tr. 59)

The ALJ

specifically considered Plaintiff's obesity in determining the RFC. While the ALJ did not explicitly
indicate how Plaintiff's obesity in combination with his other impairments limited him, an ALJ is
not required to include a specific discussion of obesity when, as in this case, the ALJ clearly
considered the impairment and included associated limitations in her RFC determination and then
properly included those physical limitations in her hypothetical to the vocational expert.
Regardless, Plaintiff fails to indicate how his RFC would be different and the record does not
support any additional limitations. See McNamara, 590 F.3d at 612 (finding an ALJ's failure to
include a specific discussion regarding obesity was not erroneous when neither the medical records
nor the claimant's testimony demonstrated that additional limitations resulted from it); Harvey v.
Berryhill, 2017 WL 3025922, at *3 (W.D. Ark. July 17, 2017) (upholding the ALJ's determination
on nearly identical language).
After careful review of the record, the Court finds the ALJ's finding that Plaintiff could
perform all the requirements of light work, except as indicated in her decision, is supported by
substantial evidence.

That includes evidence that, between 2015 and 2018, Plaintiff had

substantial periods of time without gout attacks or minor attacks resolved by his ongoing
medications; that he received conservative treatment and responsiveness to treatment; and that
there were inconsistencies between Plaintiff's complaints of limitations and his reported daily
activities. The ALJ specifically referred to several objective measures during the relevant time

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period to explain why Plaintiff's physical condition was not disabling. Accordingly, the Court
finds that the medical evidence in the record establishes that Plaintiff is able to stand or walk up
to six hours in a given eight hour workday and that his chronic gout and obesity do not cause
significant functional limitation. Therefore, the Court finds the ALJ's RFC regarding Plaintiff's
ability to stand or walk to be supported by substantial evidence and by some medical evidence of
Plaintiff's ability to function in the workplace.
The ALJ's determination does not contradict any of the medical evidence, and nothing else
in the record detracts from her decision. Based on the objective medical evidence and Plaintiff’s
testimony and after evaluating Plaintiff’s subjective symptoms, the ALJ determined that Plaintiff
retained the RFC to perform light work with additional enumerated limitations/restrictions. In any
case, the ALJ is not required to list each function which she includes in the RFC followed by the
specific evidence which supports a finding that the plaintiff can engage in that function. See Davis
v. Colvin, 2015 WL 1964791, at *5 (W.D. Mo. May 1, 2015) As detailed by the ALJ and
throughout her decision, there was sufficient other medical evidence of record supporting the
determination that Plaintiff had the RFC to perform light work with additional restrictions.
Accordingly, it cannot be said that the ALJ’s decision is not supported by substantial evidence on
the record as a whole.
Because the ALJ based her RFC assessment upon review of all the credible, relevant
evidence of record, and the RFC is supported by some medical evidence, it will not be disturbed.
See Baldwin v. Barnhart, 349 F.3d 549, 558 (8th Cir. 2003). See also Goff, 421 F.3d at 789 ("An
administrative decision is not subject to reversal simply because some evidence may support the
opposite conclusion.").

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VIII. Conclusion
When reviewing an adverse decision by the Commissioner, the Court’s task is to determine
whether the decision is supported by substantial evidence on the record as a whole. Davis v. Apfel,
239 F.3d 962, 966 (8th Cir. 2001). Substantial evidence is defined to include such relevant
evidence as a reasonable mind would find adequate to support the Commissioner’s conclusion. Id.
Where substantial evidence supports the Commissioner’s decision, this Court may not reverse the
decision merely because substantial evidence exists in the record that would have supported a
contrary outcome or because another court could have decided the case differently. Id.; see also
Igo v. Colvin, 839 F.3d 724, 728 (8th Cir. 2016). For the foregoing reasons, the Court finds that
the ALJ’s determination is supported by substantial evidence on the record as a whole. See Finch,
547 F.3d at 935. Similarly, the Court cannot say that the ALJ’s determinations in this regard fall
outside the available "zone of choice," defined by the record in this case. See Buckner, 646 F.3d
at 556. For the reasons set forth above, the Commissioner’s decision denying benefits is affirmed.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner be AFFIRMED.
A separate Judgment shall accompany this Memorandum and Order.

/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE
Dated this 9th day of September, 2020.

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