Pountney v. Kijakazi

Filing 25

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the relief requested in Plaintiff's Complaint and Brief in Support of Complaint is DENIED. (ECF Nos. 1 , 21 .) IT IS FURTHER ORDERED that the decision of the Commissioner is AFFIRMED. Signed by Magistrate Judge Rodney H. Holmes on 9/24/2024. (CLH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
MARY JANE POUNTNEY,
Plaintiff,
v.
MARTIN O’MALLEY, 1
Commissioner of Social Security,
Defendant.

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Case No. 2:23-CV-00029 RHH

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Mary Jane Pountney’s appeal regarding the
denial of Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C.
§§ 401 et seq. (the “Act”) and Supplemental Security Income (“SSI”) under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381, et seq. The parties have consented to the exercise of authority by
the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 8.) The
Court has reviewed the parties’ briefs and the entire administrative record, including the transcript
and medical evidence. Based on the following, the Court will affirm the Commissioner’s denial
of Pountney’s application.
I.

Background
The Court adopts the statement of facts set forth in Pountney’s statement of facts (ECF No.

21-1) and Defendant’s response (ECF No. 24-1). Together, these statements provide a fair

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

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description of the record before the Court. Specific facts will be discussed as needed to address
the parties’ arguments.
On or about May 2, 2018, Pountney applied for DIB and SSI, alleging that she has been
unable to work due to disability since July 1, 2017. (Tr. 172-179.) Pountney later amended her
alleged onset date to February 10, 2018. (Tr. 200.) Pountney alleged disability due fibromyalgia,
anxiety, depression, IBS, hypermobility syndrome, pseudoarticulation of spine, degenerative joint
disease, inflammation, chronic pain, and confusion. (Tr. 88, 96.) Her application was initially
denied. (Tr. 87-102.) Then, she filed a request for Hearing by Administrative Law Judge (ALJ).
(Tr. 111-112.) On November 21, 2019, the ALJ held a hearing on Pountney’s claim. (Tr. 54-86.)
Pountney was represented by counsel at the hearing, and an impartial vocational expert testified.
Id.
In a decision issued on December 13, 2019, the ALJ found Pountney was not disabled as
defined in the Act from the alleged onset date through the date of decision. (Tr. 23.) On December
17, 2019, Pountney filed a Request for Review of Hearing Decision with the Social Security
Administration’s (SSA) Appeals Council. (Tr. 165-168.) On July 25, 2020, the Appeals Council
denied Pountney’s request for review, and adopted the ALJ’s decision in full. (Tr. 1-5.)
Thereafter, Pountney filed a civil action against Defendant in the United States District
Court of the Western District of Missouri. On October 7, 2021, the district court reversed and
remanded the case pursuant to Defendant’s unopposed Motion to Reverse and Remand pursuant
to sentence four of 42 U.S.C. § 405(g). (Tr. 668.) The Court’s order stated “Defendant states that
remand is necessary to allow further evaluation of the persuasiveness of medical opinion evidence
pursuant to 20 C.F.R. § 404.1520c; 416.920c.” (Id.)

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In an order dated February 11, 2022, the SSA Appeals Council vacated the hearing
decision, and remanded Pountney’s case to the ALJ. (Tr. 672.) 2 On July 20, 2022, a second hearing
was conducted before the same ALJ who issued the December 13, 2009 decision. (Tr. 506-563.)
At the hearing, Pountney was represented by counsel, and the ALJ heard testimony from an
impartial medical expert and an impartial vocational expert. On October 5, 2022, the ALJ denied
benefits again. (Tr. 470-505.) Plaintiff timely filed exceptions to the ALJ’s decision, and on March
17, 2023, the Appeals Council denied Plaintiff’s request for review, and adopted the ALJ’s
decision in full. (Tr. 462-469.) Plaintiff filed a complaint with this Court on May 24, 2023, which
was 68 days after the Appeals Council adopted the ALJ’s decision. Defendant filed a motion to
dismiss this action as untimely because Pountney filed her complaint several days beyond the
required time limits. (ECF No. 9.) The Court denied the motion. (ECF No. 11.)
II.

Standard for Determining Disability Under the Act
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); 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

The SSA Appeals Council noted that Pountney filed subsequent claims for Title II and Title XVI disability benefits
on November 10, 2020. (Tr. 671.) The Council directed the ALJ to consolidate the claims files, combine evidence,
and issue a new decision on the consolidated claims.

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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).
The Social Security Administration (“SSA”) uses a five-step analysis to determine whether
a claimant seeking disability benefits is in fact disabled. 20 C.F.R. § 404.1520(a)(1). First, the
claimant must not be engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i).
Second, the claimant must establish that he or she has an impairment or combination of
impairments that significantly limits his or her ability to perform basic work activities and meets
the durational requirements of the Act. 20 C.F.R. § 404.1520(a)(4)(ii). Third, the claimant must
establish that his or her impairment meets or equals an impairment listed in the appendix of the
applicable regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant’s impairments do not meet
or equal a listed impairment, the SSA determines the claimant’s residual functional capacity
(“RFC”) to perform past relevant work. 20 C.F.R. § 404.1520(e).
Fourth, the claimant must establish that the impairment prevents him or her from doing past
relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant meets this burden, the analysis
proceeds to step five. At step five, the burden shifts to the Commissioner to establish the claimant
maintains the RFC to perform a significant number of jobs in the national economy. Singh v. Apfel,
222 F.3d 448, 451 (8th Cir. 2000). If the claimant satisfied all of the criteria under the five-step
evaluation, the ALJ will find the claimant to be disabled. 20 C.F.R. § 404.1520(a)(4)(v).
III.

The ALJ Decisions & Appeals Council Remand Order
The ALJ’s 2019 Decision
Applying the foregoing five-step analysis, the ALJ here originally found that Pountney met

the insured status requirements of the Social Security Act through September 30, 2020, and that
Pountney had not engaged in substantial gainful activity since February 10, 2018, the amended

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alleged onset date. (Tr. 14.) Next, the ALJ found that Pountney has the following severe
impairments: degenerative disc disease of the lumbar spine; degenerative joint disease of the right
knee; hypermobility of the bilateral hands, wrists, elbows, and knees; fibromyalgia; obesity; and
mental impairments, variously diagnosed as attention deficit hyperactivity disorder (ADHD),
depression, and anxiety. The ALJ found Pountney’s irritable bowel syndrome to be a non-severe
impairment and found her hearing loss, headaches, and dizziness/vertigo to not be established
impairments. (Tr. 15.)
The ALJ determined that Pountney did not have an impairment or combination of
impairments that meets or medically equals the severity of the listed impairments in 20 C.F.R. 404,
Subpart P, Appendix 1. The ALJ also determined that Pountney had the residual functional
capacity to perform light work except that:
She requires a sit/stand option allowing a change of position every 30 to 60 minutes
for a few minutes at a time while remaining at the workstation with no loss in
production. If it were a standing job, she would be able to sit for a few minutes and
then stand back up. It would be the opposite for a sitting job, she would be able to
sit and then stand up for a few minutes and sit back down. The claimant cannot
climb on ropes, ladders, or scaffolds. The claimant can occasionally climb on ramps
and stairs, stoop, kneel, crouch, or crawl. The claimant should avoid concentrated
exposure to work hazards, such as unprotected heights and being around dangerous,
moving machinery. The claimant is able to understand and carry out simple
instructions consistent with unskilled work. The claimant can tolerate occasional
interaction with coworkers, supervisors, and the general public.
(Tr. 17.) The ALJ found that Pountney was unable to perform any past relevant work. (Tr. 21.)
Pountney was 29 years old and considered a younger individual on the alleged onset date. She has
at least a high school education. (Tr. 22.) The ALJ determined that the transferability of job skills
is not material to the determination of disability because the Medical-Vocational Rules support a
finding that Pountney is “not disabled” whether or not he has transferable job skills. Based on the
foregoing, the ALJ found that there are jobs that exist in significant numbers in the national

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economy that Pountney can perform, including mail clerk (Dictionary of Occupational Titles
(DOT) No. 209.687-026, light exertion level, SVP 2, approximately 13,000 jobs in the national
economy), marker (DOT No. 209.587-034, light, SVP 2, approximately 125,000 jobs in the
national economy), and routing clerk (DOT No. 222.687-022, light, SVP 2, approximately 98,000
jobs in the national economy). (Tr. 22.) Therefore, the ALJ concluded that Pountney was not
disabled, as defined in the Act, from February 10, 2018, through December 13, 2019. (Tr. 23.)
Appeals Council Remand Order
As discussed above, Pountney filed suit in the United States District Court for the Western
District of Missouri, and the court remanded the case for further evaluation. In an order dated
February 11, 2022, the SSA Appeals Council vacated the original hearing decision, and remanded
Pountney’s case to the ALJ for resolution of the following issues:
The hearing decision does not contain adequate evaluation of the opinion evidence.
The claimant filed his applications for Title II benefits and Title XVI on May 2,
2018; thus, the regulations at 20 CFR 404.1520c and 416.920c govern the
evaluation of medical source statements. According to 20 CFR 404.1520c(b)(2) and
416.920c(b)(2), the factors of supportability and consistency are the most important
factors considered when an Administrative Law Judge evaluates the persuasiveness
of a medical source's opinion or prior administrative finding. On page 9 of the
hearing decision, the Administrative Law Judge evaluated the opinion from the
claimant's rheumatology nurse Cheryl L. McGowan, FNP (Exhibit 6F/70). The
Administrative Law Judge found Nurse McGowan's statements were "not entirely
consistent with the objective medical evidence." While the Administrative Law
Judge discussed the consistency factor in evaluating Nurse McGowan's opinion,
the hearing decision did not discuss the objective medical evidence in finding her
opinion not supported. Additionally, the hearing decision does not address the
portion of Nurse McGowan's opinion that the claimant would need to "lie down
frequently" (Exhibit 5F/2). This limitation assessed by Nurse McGowan is not
consistent with the assessed residual functional capacity as described in the
decision, and the Administrative Law Judge did not explain why such a limitation
was not included in the residual functional capacity assessment.
Also on page 9 of the hearing decision, the Administrative Law Judge discussed
the medical source statement from the claimant’s primary care physician, Justin
Terrell, M.D., but did not evaluate or assess the persuasiveness of the assessment
by this treating source. Dr. Terrell opined that "it would be difficult for the claimant
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to perform jobs that required prolonged sitting, standing, and lifting" (Exhibit 7F).
These limitations assessed by Dr. Terrell are not consistent with the assessed
residual functional capacity as described in the decision, and the Administrative
Law Judge did not explain why such limitations were not included in the residual
functional capacity assessment. The Appeals Council notes that the sit/stand option
in the residual functional capacity is not compatible with Dr. Terrell's assessment
that the claimant should avoid prolonged sitting or standing during an entire
workday. Additionally, the hearing decision does not consider the supportability
and consistency of Dr. Terrell's opinion with the rest of the administrative record.
Further evaluation of the opinion evidence in accordance with 20 CFR 404.1520c
and 416.920c is warranted.
(Tr. 671-72.) The SSA Appeals Council directed that upon remand, the ALJ should:
Give further consideration to the claimant’s maximum residual functional capacity
during the entire period at issue and provide rationale with specific references to
evidence of record in support of assessed limitations (Social Security Ruling 968p). In so doing, evaluate the medical source opinion(s) and prior administrative
medical findings pursuant to the provisions of 20 CFR 404.1520c and 416.920c. As
appropriate, the Administrative Law Judge may request the medical sources
provide additional evidence and/or further clarification of the opinions (20 CFR
404.1520b and 416.920b). The Administrative Law Judge may enlist the aid and
cooperation of the claimant's representative in developing evidence from the
claimant's medical sources.
If warranted, obtain supplemental evidence from a vocational expert to clarify the
effect of the assessed limitations on the claimant's occupational base (Social
Security Ruling 83-14). The hypothetical questions should reflect the specific
capacity/limitations established by the record as a whole. The Administrative Law
Judge will ask the vocational expert to identify examples of appropriate jobs and to
state the incidence of such jobs in the national economy (20 CFR 404.1566 and
416.966). Further, before relying on the vocational expert evidence the
Administrative Law Judge will identify and resolve any conflicts between the
occupational evidence provided by the vocational expert and information in the
Dictionary of Occupational Titles (DOT) and its companion publication, the
Selected Characteristics of Occupations (Social Security Ruling 00-4p).
(Tr. 672.)
The ALJ’s 2022 Decision
On remand the ALJ again applied the SSA’s five-step analysis in determining Pountney
was not disabled. In the final decision at issue on appeal, the ALJ found that Pountney has the
following severe impairments: degenerative disc disease of the lumbar spine; degenerative joint
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disease of the right knee; peripheral versus autoimmune neuropathy, fibromyalgia, obesity,
attention deficit hyperactivity disorder (ADHD), bipolar II disorder and generalized anxiety
disorder. (Tr. 476.) The ALJ found Pountney’s obstructive sleep apnea, endometriosis, allergies,
benign vertigo, irritable bowel syndrome, and hypermobility syndrome are not “severe”
impairments.
The ALJ determined once again that Pountney did not have an impairment or combination
of impairments that meets or medically equals the severity of the listed impairments in 20 C.F.R.
404, Subpart P, Appendix 1. The ALJ also determined that Pountney had the residual functional
capacity to perform light work except that:
She can stand and walk for 4 hours out of an 8-hour workday; can sit for 30 minutes
or stand for 30 minute at a time and alternate positions as needed; can never climb
on ropes, ladders, or scaffolds; can never crawl; can occasionally climb on ramps
or stairs; can occasionally stoop, kneel, or crouch; can occasionally balance as that
term is described in the Dictionary of Occupational Titles (DOT) and Selected
Characteristics of Occupations (SCO) and not as is commonly defined; should
avoid concentrated exposure to extreme cold and pulmonary irritants, such as gas,
fumes, odors, dusts, and workplaces with poor ventilation; is limited to moderate
or office noise; should avoid bright and/or flashing lights at the intensity found in
a theater or football field; should avoid concentrated exposure to vibration and work
hazards, such as unprotected heights and being around dangerous, moving
machinery; is able to understand, remember, and carry out simple instructions
consistent with unskilled work; can perform only simple decision-making related
to basic work functions; can tolerate only minor, infrequent changes within the
workplace; can tolerate occasional interaction with co-workers and supervisors;
and should avoid interaction with the general public.
(Tr. 481.) The ALJ found that Pountney was unable to perform any past relevant work. (Tr. 494.)
Pountney was 29 years old and considered a younger individual on the alleged onset date. She has
at least a high school education. (Tr. 495.) The ALJ determined that the transferability of job skills
is not material to the determination of disability because the Medical-Vocational Rules support a
finding that Pountney is “not disabled” whether or not he has transferable job skills. Based on the
foregoing, the ALJ found that there are jobs that exist in significant numbers in the national
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economy that Pountney can perform, including marker (DOT No. 209.587-034, light exertion
level, SVP 2, approximately 10,000 jobs in the national economy), collator operator (DOT No.
208.685-010, light, SVP 2, approximately 20,000 jobs in the national economy), and small parts
assembler (DOT No. 706.684-022, light, SVP 2, approximately 30,000 jobs in the national
economy). (Tr. 496.) Therefore, the ALJ concluded that Pountney was not disabled, as defined in
the Act, from February 10, 2018, through October 5, 2022. (Tr. 496-97.)
IV.

Standard for Judicial Review
The standard of review is narrow. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.

2001). This Court must affirm the Commissioner’s decision 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). “Under the
substantial-evidence standard, a court looks to an existing administrative record and asks whether
it contains ‘sufficien[t] evidence’ to support the agency’s factual determinations.” Biestek v.
Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). “Substantial evidence is less than a preponderance, but is enough that a reasonable
mind would find it adequate to support the Commissioner’s conclusion.” Pate-Fires, 564 F.3d at
942. See also Biestek, 139 S. Ct. at 1154 (“Substantial evidence . . . means—and means only—
‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”)
(quoting Consolidated Edison, 305 U.S. at 229).
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. Renstrom v. Astrue, 680 F.3d 1057, 1063 (8th Cir. 2012). However, the Court “‘do[es]

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not reweigh the 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)).
V.

Discussion
Pountney argues that the ALJ erred in two ways: (1) by failing to properly assess the

medical opinion evidence; and (2) by failing to comply with the Appeals Council’s remand
directive.
A. Judicial Review of Whether the ALJ Complied with the Remand Order
Pountney contends that the ALJ erred when she “failed to follow the specific directives of
the Appeals Council remand” by failing to follow the regulations in assessing medical opinions.
(ECF No. 21, p. 18.) Pountney is also critical of the ALJ’s assessment of NP McGowan’s opinion
in part because the ALJ did not specifically address a point made by the Appeals Council Remand
Order stating the ALJ’s 2019 hearing decision did not address the portion of the opinion that
claimant would need to “lie down frequently,” a limitation that was not consistent with the assessed
RFC in the 2019 decision. (Tr. 671.)
Pountney’s arguments regarding the Appeals Council’s directive overlap with her
arguments regarding the failure to properly evaluate medical opinion evidence. Accordingly, the
undersigned will address some of these arguments when evaluating the ALJ’s assessment of the
medical opinions. However, this Court’s review is limited to determining whether the ALJ’s

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findings are based on correct legal standards and supported by substantial evidence on the record
as a whole. See 42 U.S.C. §§ 405(g); 1383(c)(3); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir.
2009); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).
The Appeals Council reviewed the ALJ’s new decision, and on March 17, 2023, it denied
Pountney’s request for review and found no basis for changing the ALJ’s decision. “The issue
whether an ALJ complied with a remand order evaporates when the Appeals Council adopts the
ALJ’s decision as the Commissioner’s final decision; with that action, the Appeals Council
implicitly acknowledges that the ALJ’s decision is compliant with the remand order.” Sanders v.
Astrue, No. 4:11CV1735 RWS TIA, 2013 WL 1282330, at *11 (E.D. Mo. Feb. 8, 2013), report
and recommendation adopted, No. 4:11 CV 1735 RWS, 2013 WL 1281998 (E.D. Mo. Mar. 27,
2013).
Therefore, “because 42 U.S.C. § 405(g) authorizes judicial review solely to determine
whether substantial evidence supports the Commissioner’s decision and whether that decision
comports with relevant legal standards, the question of whether the ALJ complied with the Appeals
Council’s remand order is not subject to judicial review.” Vanepps v. Comm’r of Soc. Sec., No.
C18-5-LTS, 2019 WL 1239857, at *7 (N.D. Iowa Mar. 18, 2019) (rejecting argument that ALJ
went too far in evaluating other issues not ordered by the Appeals Council’s remand order); See
also Jason M. G. v. O’Malley, No. 23-CV-0084 (JFD), 2024 WL 1095915, at *5 (D. Minn. Mar.
13, 2024) (“The Eighth Circuit Court of Appeals has not addressed the issue, but other district
courts in this Circuit have determined that an ALJ’s failure to follow the Appeals Council’s remand
instructions is not subject to judicial review.”) (collecting cases). The Court will review the ALJ
decision to determine if it complies with relevant legal standards, not whether it complied with the
Appeals Council’s remand order.

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B. Medical Opinion Evidence
Pountney contends that the ALJ failed to properly evaluate some of the medical opinion
evidence in conformance with the applicable regulations. The Commissioner’s regulations provide
that, for claims filed on or after March 27, 2017, ALJs will not defer to or give any specific
evidentiary weight, including controlling weight, to any medical opinion. See 20 C.F.R. §
416.920c(a) (2017). Instead, ALJs must evaluate the persuasiveness of medical opinions and prior
administrative medical findings in light of several factors, the most important of which are
supportability and consistency with the record. 20 C.F.R. § 416.920c(a)-(c) (2017). ALJs must
explain how they considered the factors of supportability and consistency in their decisions, but
need not explain how they considered the other factors. 20 C.F.R. § 416.920c(b) (2017).
For supportability, “[t]he more relevant the objective medical evidence and supporting
explanations presented by a medical source are to support his or her medical opinion(s) or prior
administrative medical finding(s), the more persuasive the medical opinions or prior administrative
medical findings will be.” 20 C.F.R. §§ 404.1520c (c)(1); 416.920c (c)(1). Thus, supportability is
an assessment of how well a medical source supported and explained his or her opinion. Daniels
v. Kijakazi, No. 21 Civ. 712 (GWG), 2022 WL 2919747, at *5, (S.D.N.Y. July 26, 2022).
The regulations provide that “consistency” means “[t]he more consistent a medical
opinion(s) or prior administrative medical finding(s) is with the evidence from other medical
sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior
administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c (c)(2); 416.920c (c)(2).
“Thus, ‘[c]onsistency is an all-encompassing inquiry focused on how well a medical source is
supported, or not supported, by the entire record, not just what a medical source had available to

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them.’” Daniels, 2022 WL 2919747, at *5 (quoting Cuevas v. Comm'r of Soc. Sec., 2021 WL
363682, at *10 (S.D.N.Y. Jan. 29, 2021)).
Cheryl McGowan, FNP
On August 29, 2019, FNP Cheryl McGowan, Pountney’s treating nurse practitioner,
submitted a letter “regarding [Pountney’s] illness.” (Tr. 376-77.) In the letter, FNP McGowan
stated Pountney was diagnosed with fibromyalgia by a local rheumatologist on May 14, 2018, and
that Pountney has a long history of widespread pain, fatigue, reduced physical mobility, sleep
disturbance, and poor concentration. FNP McGowan explained:
Mary has experienced pain over most of her body while still in her 20’s. Areas
involved include the back, ankles, hips and knees. She has the sensation the joints
are swollen constantly. She complains of difficulty moving due to pain; sometimes
she is unable to get out of bed. She has stiffness of the body that can last all day.
the patient is described as deep and aching. She has popping of the hips daily that
is painful. A heating pad is required to reduce stiffness and pain. Has ongoing
headaches that are being managed by her primary care provider.
The patient has extreme fatigue. She has difficulty staying in one position for more
than a few minutes due to pain. She must change positions, walk or lie down
frequently. This makes working difficult. Spacing activities to preserve energy is
essential in her everyday life. She has difficulty falling and staying asleep. The
patient has tried sleep medications that have been ineffective. Her sleep is nonrestorative; she feels tired and fatigued most of the following day.
(Tr. 376-77.) On the same day of FNP McGowan’s letter, she had a follow up patient visit with
Pountney. (Tr. 446-447.) FNP McGowan documented that on physical exam, Pountney had mild
hypermobility of hands and wrists, pain with palpation of upper back and shoulders, elbows,
trochanter region and lower legs, and tense trapezius muscles. She had tenderness over 10/18
points suggestive of fibromyalgia. (Tr. 447.) FNP McGowan documented that Pountney has
finished physical therapy for her back and feels it has been helpful, however she needs a brace for
her back and ankle for activity. She documented that Pountney has pain over 18 of the 19 points
that are diagnostic using the modified criteria for fibromyalgia diagnosis, and Pountney must get

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up frequently and move and is required to change positions due to pain and pressure in the back
or extremities. FNP McGowan had Pountney continue her current medications and ordered her to
return to the clinic in a year or sooner if needed. (Tr. 447.)
The ALJ found:
The opinions of Ms. McGowan are unpersuasive (Exhibits 5F, 6F/70). Her opinions
are not reasonably supported by or consistent with the cumulative medical and nonmedical evidence of record. Ms. McGowan attributed most of the claimant’s
limitations to her reportedly “extreme fatigue” and difficulty moving due to pain;
however, neither Ms. McGowan nor any other Justin Terrell, MD medical source
has documented medical signs consistent with a finding that the claimant
experiences fatigue or pain of the degree her opinion suggests. The only persistently
abnormal medical signs noted on examination has been the claimant’s obesity.
Indeed, during the examination in which Ms. McGowan consulted with the
claimant about “disability paperwork,” Ms. McGowan noted no objective
indicators that the claimant was fatigued (e.g., she did not note the claimant to
appear fatigued or to have impaired strength, attention, or concentration due to
fatigue). Although she documented some medical signs suggestive of painful
underlying impairments -- mild hypermobility of the hands and wrists, tense
trapezius muscles, and 10/18 tender points -- those medical signs are not
commensurate with the extreme degree of limitation identified by Ms. McGowan
(Exhibit 6F/70). Moreover, Ms. McGowan’s opinion does not appear consistent
with the claimant’s statements that she is a stay-at-home mother who loves to game
and is able to drive kids around “a lot” (Exhibits 14F/11; 15F/159, 166, 183, 191,
203, 208, 213, 218; 19F/19, 28, 38, 44, 61, 67, 89, 98; 23F/2, 9, 15).
(Tr. 491-492.)
Pountney contends the ALJ failed to discuss the objective medical evidence in finding the
opinion not supported. 3 Specifically, she contends the ALJ discounted the existence of objective
evidence in support of FNP McGowan’s opinion, and failed to note FNP McGowan’s May 14,
2018 exam of Pountney. (ECF No. 21, p. 17.) Pountney does not develop additional argument in
her briefing as to why the ALJ erred in evaluating FNP McGowan’s opinion beyond more globally

3
Pountney also contends the ALJ did not address the portion of FNP McGowan’s opinion that Pountney would need
to lie down frequently which was specifically cited in the Appeals Council Remand Order. As discussed above, the
ALJ’s compliance with the Appeals Council Remand Order is not subject to judicial review. See Jason M. G. v.
O'Malley, No. 23-CV-0084 (JFD), 2024 WL 1095915, at *4 (D. Minn. Mar. 13, 2024).

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arguing that the ALJ “failed to evaluate a multitude of the objective evidence” that supports FNP
McGowan’s opinion.
Contrary to Pountney’s contention, the ALJ provides a thorough summary of the objective
medical evidence, including the details of the May 14, 2018 exam that Pountney suggests was
ignored. See Lawrence v. Saul, 970 F.3d 989, 996 (8th Cir. 2020) (upholding the ALJ’s decision
when the ALJ acknowledged the medical evidence noted by the plaintiff but placed different and
permissible weight on the evidence). To the extent Pountney is arguing that the ALJ somehow
erred in her evaluation of FNP McGowan’s opinion, the Court finds that the ALJ properly
considered the factors of supportability and consistency. Upon consideration, the Court finds that
substantial evidence supports the ALJ’s decision to find FNP McGowan’s opinions unpersuasive.
See Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001) (holding as long as there is substantial
evidence in the record that supports the decision, this Court may not reverse it simply because
substantial evidence exists in the record that would have supported a contrary outcome, or because
the Court would have decided the case differently). The Court therefore finds that the ALJ did not
err in her consideration of FNP McGowan’s opinion in determining whether Pountney was
disabled.
Justin Terrell, M.D.
On October 22, 2019, Dr. Justin Terrell, Pountney’s primary care physician, submitted a
letter regarding Pountney. (Tr. 454.) Dr. Terrell explained:
I treat [Pountney] for a variety of disorders/diagnoses including but not limited to
fibromyalgia, chronic back pain, chronic joint pain, anxiety and depression,
ADHD, and peripheral neuropathy. These chronic illnesses lead to dysfunction in
daily life as well as ability to work. The patient reports that working exacerbates
these symptoms including pain, fatigue, and psychological distress. The
requirements of working full time, including prolonged sitting or standing, lifting,
prolonged focusing, and prolonged interpersonal interaction are difficult for the
patient to perform given the combined effects of the above chronic illnesses and
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working in turn exacerbates these symptoms. These illnesses for which I treat her
are the basis of her claim of disability.
(Tr. 454.) The ALJ found:
The opinion of Dr. Terrell, M.D. (Exhibit 7F) is persuasive to the extent it is
consistent with the residual functional capacity (RFC). This is because the RFC
accounts for limitations for no prolonged sitting or standing greater than 30 minutes
at a time and limits the claimant to unskilled work with limited social interaction.
Dr. Terrell found that the claimant has some work-related limitations and that
working would exacerbate the symptoms of her impairments, but he did not assess
any greater limitations than have been included in the residual functional capacity
herein. “The requirements of working full time, including prolonged sitting or
standing, lifting, prolonged focusing, and prolonged interpersonal interaction are
difficult for the patient to perform given the combined effects of fibromyalgia,
chronic back pain, chronic joint pain, anxiety, depression, ADHD, and peripheral
neuropathy, “and working in turn exacerbates these symptoms” (Exhibit 7F). The
opinion is persuasive to the extent his opinion is supported by and consistent with
other evidence of record, including the prior administrative medical findings of Dr.
Weiss and Dr. Endsley, the testimony of the impartial medical expert, and Dr.
Terrell’s own treatment notes (see Exhibit 6F/74-75, documenting complaints
related to the claimant’s impairments but no abnormal medical signs on physical
examination other than the claimant’s obesity).
(Tr. 492.)
Pountney contends the ALJ erred because she again did not explain the basis for finding or
provide examples of how Dr. Terrell’s opinion was inconsistent with the record. However, the ALJ
sufficiently addressed the supportability and consistency factors under 20 C.F.R. § 404.520c in
evaluating Dr. Terrell’s opinion. Dr. Terrell opined that prolonged sitting or standing, lifting,
focusing, and personal interactions are “difficult” for the patient to perform due to her impairments.
(Tr. 454.) Notably, this assessment does not provide a limitation regarding the most that Pountney
can do. The ALJ correctly finds that Dr. Terrell did not assess any greater limitations than were
included in the RFC determination, as the RFC finds that Pountney can sit for 30 minutes or stand
for 30 minutes at a time and alternate positions as needed. Because Dr. Terrell’s opinion does not
provide measurable limits as to what constitutes “prolonged” activity or provide function-by-

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function limitations, it was acceptable for the ALJ to find Dr. Terrell’s vague opinion persuasive
to the extent it is consistent with the RFC. The ALJ found that Dr. Terrell’s restriction regarding
prolonged sitting, standing, or lifting is supported by his own treatment notes, which document
Pountney’s complaints, but also do not contain abnormal medical signs on physical examination
other than Pountney’s obesity. The ALJ also found that Dr. Terrell’s opinion is persuasive to the
extent it is supported by the prior administrative findings of Dr. Weiss and Dr. Endsley, and the
testimony of impartial medical expert Dr. Holan. See Tindell v. Barnhart, 444 F.3d 1002, 1006
(8th Cir. 2006) (“It is the ALJ’s function to resolve conflicts among the various treating and
examining physicians”) (internal quotation omitted). “Once the ALJ has decided how much weight
to give a medical opinion, the Court’s role is limited to reviewing whether substantial evidence
supports this determination, not deciding whether the evidence supports the plaintiff’s view of the
evidence.” Beamer v. Saul, No. 2:18-CV-00094 JAR, 2020 WL 1511350, at *7 (E.D. Mo. Mar.
30, 2020) (citation omitted). See also Couch v. Berryhill, No. 2:18 CV 46 DDN, 2019 WL
1992623, at *6 (E.D. Mo. May 6, 2019) (same). The undersigned finds no error in the ALJ’s
evaluation of Dr. Terrell’s opinion.
Pountney does not develop specific argument in her briefing regarding error in the
ALJ’s evaluation of the other medical opinion evidence in the record. However, Pountney contends
that “it is significant” that Pountney had four different treating sources that believe she cannot
withstand the rigor of an 8-hour day 5 days a week. This argument refers to NP McGowan and Dr.
Terrell above, as well as Benjamin Crenshaw, M.D. (Pountney’s treating physician) and Kevin
Williams, PLPC (Pountney’s therapist). The ALJ found the opinions of Dr. Crenshaw and Mr.
Williams to be unpersuasive. Both providers submitted multiple letters in 2021 and 2022 in support
of Pountney’s claim for disability. (Tr. 1370, 1511, 1512-13, 1557-1558, 1559-1560.) Dr.

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Crenshaw first opinion stated it would be “impossible” for Pountney to perform work on a regular
basis (Tr. 1370), then his second opinion was that it would be “extremely difficult for her to
maintain normal employment” and that she “is medically disabled from keeping meaningful
employment” (Tr. 1512). The ALJ appropriately found that statements on issues reserved to the
Commissioner are inherently neither valuable nor persuasive. (Tr. 493.) See Pierce v. Kijakai, No.
20-CV-1426, 2022 WL 888141, at *7 (E.D. Mo. Mar. 25, 2022) (“Because Gardner did not identify
what Pierce can still do despite her impairments and the issue of whether Pierce can work is a
matter reserved to the Commissioner, Gardner’s report did not constitute a medical opinion under
sections 404.1513(a)(2) and 416.913(a)(2).”). The ALJ noted that Dr. Crenshaw’s opinion did not
sufficiently articulate a degree of limitation which reduced the supportability and persuasiveness
of the opinion, and that he appeared to overly rely on Pountney’s subjective complaints, which
were not fully consistent with other evidence of record. Similarly, Mr. Williams’ opinion explicitly
stated that they were based on Pountney’s statements to him. (Tr. 1557.) The ALJ found such
statements and Mr. William’s observations to be inconsistent with other evidence in the record.
See, e.g., McClellan v. Kijakazi, 2021 WL 4198390, at *3 (W.D. Mo. Sept. 15, 2021) (“By stating
that Plaintiff’s physical examinations ‘do not show the level of dysfunction [Plaintiff] suggested,’
the ALJ sufficiently considered and articulated the consistency of [Plaintiff’s] medical opinion
with other evidence in the record.”).
While Plaintiff argues that this evidence could support an opposite outcome, it is not the
Court’s duty to re-weigh the evidence or review the factual record de novo. See Cox v. Astrue, 495
F.3d 614, 617 (8th Cir. 2002). “[T]he standard of review requires this Court to determine whether
substantial evidence supports the ALJ’s findings, not whether substantial evidence would also
support contrary findings[.]” Moss v. Colvin, 2016 WL 3125886, at *5 (E.D. Mo. June 3, 2016).

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Substantial evidence supports the ALJ’s decision that Dr. Crenshaw’s and Mr. Williams’ opinions
were unsupported and inconsistent, and the ALJ did not err in not giving more weight to the
treating sources that opined Pountney could not withstand the rigor of a full work week.
The Court acknowledges that the record contains conflicting evidence, and the ALJ could
have reached a different conclusion. However, this Court’s task is not to reweigh the evidence
presented to the ALJ. The ALJ’s weighing of the evidence here fell within the available “zone of
choice,” and the Court cannot disturb that decision merely because it might have reached a
different conclusion. See Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011); see also Adkins v.
Comm'r, Soc. Sec. Admin., 911 F.3d 547, 550 (8th Cir. 2018) (“[I]t is not the function of a
reviewing court to reverse the decision of the ALJ because there is evidence in the record which
contradicts his findings. The test is whether there is substantial evidence on the record as a whole
which supports the decision of the ALJ.”).
VI.

Conclusion
Having reviewed the entire record, the Court finds that the ALJ made a proper RFC

determination based on a fully and fairly developed record. Consequently, the Court determines
that the ALJ’s decision is supported by substantial evidence.
Accordingly,
IT IS HEREBY ORDERED that the relief requested in Plaintiff’s Complaint and Brief
in Support of Complaint is DENIED. (ECF Nos. 1, 21.)
IT IS FURTHER ORDERED that the decision of the Commissioner is AFFIRMED.
Dated this 24th day of September, 2024.

RODNEY H. HOLMES
UNITED STATES MAGISTRATE JUDGE
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