Latragna v. Colvin

Filing 32

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED. A separate Judgment shall accompany this Memorandum and Order. Signed by Magistrate Judge John M. Bodenhausen on 8/12/2015. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LAURIE LATRAGNA,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 4:14 CV 496 JMB

MEMORANDUM AND ORDER
This action is before the Court, pursuant to the Social Security Act (“the Act”), 42 U.S.C.
§§ 401, et seq., authorizing judicial review of the final decision of the Commissioner of Social
Security (the “Commissioner”) denying Plaintiff Laurie Latragna’s application for Supplemental
Security Income (“SSI”). All matters are pending before the undersigned United States
Magistrate Judge with consent of the parties, pursuant to 28 U.S.C. § 636(c). The matter is fully
briefed, and for the reasons discussed below, the Commissioner’s decision is affirmed.
I.

Procedural History & Summary of Memorandum Decision
Plaintiff filed applications for disability insurance benefits (“DIB”) and supplemental

security (“SSI”) income in March 2009. With those applications, Plaintiff alleged a disability
onset date of August 8, 2008. On September 14, 2010, those applications were denied at the
hearing level by an Administrative Law Judge (“ALJ”). (Tr. 63-79) 1 Plaintiff filed another
application for SSI benefits in February 2011, alleging disability beginning on September 10,
2010. That application was also denied at the initial level, and by a different ALJ at the hearing
1

References to “Tr.” are to the administrative record filed by the Commissioner in this matter.

level. (Tr. 38) The Social Security Administration Appeals Council denied Plaintiff’s request
for review, leaving the ALJ’s decision as the final decision of the Commissioner in this matter.
Accordingly, Plaintiff has exhausted her administrative remedies and the matter is properly
before this Court. Unless otherwise noted, all references to the ALJ or hearing refer to the
administrative hearing associated with Plaintiff’s February 2011 application for SSI benefits.
The ALJ concluded that Plaintiff could not return to her past relevant work as a nurse.
Based on hypothetical questions posed to a vocational expert (“VE”), the ALJ found that
Plaintiff was not under a disability within the meaning of the Act because she could perform
other work that existed in substantial numbers in the national economy, namely dining room
attendant (DOT No. 311.677-010) and light janitorial (DOT No. 323.687-014). (Tr. 54)
In her initial brief to this Court, Plaintiff argued that: (1) the ALJ’s RFC was not
supported by substantial evidence and was incomplete because it failed to correspond to any
medical opinion in the record (ECF No. 16 at 9); (2) the RFC determination was faulty because
the ALJ failed to properly weigh the medical opinion evidence (Id. at 12); and (3) the ALJ failed
to consider Plaintiff’s chronic mental illness. (Id. at 14) The Commissioner filed a detailed brief
in opposition. (ECF No. 23)
In her reply brief, Plaintiff raised an arguably new issue relating to the sufficiency of the
VE’s testimony, which the ALJ relied on at step five. (ECF No. 24) Because the new issue
involved the interpretation of an Eighth Circuit decision which was issued after Plaintiff filed her
opining brief herein (see Moore v. Colvin, 769 F.3d 987 (8th Cir. 2014)), the Court issued a
show cause order, allowing the Commissioner an opportunity to respond to Plaintiff’s new issue.
The Court allowed Plaintiff to reply to the Commissioner’s response.
As explained below, the Court concludes that the ALJ did not err in determining

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Plaintiff’s RFC. Likewise, the ALJ properly considered the relevant opinion evidence in the
record and appropriately considered Plaintiff’s alleged chronic mental health conditions.
Plaintiff’s contention that a conflict regarding the VE’s testimony undermines the ALJ’s
decision presents a closer question. Although there is a conflict between aspects of the VE’s
testimony and the Dictionary of Occupational Titles (“DOT”), that conflict is harmless when
viewed in context of the entirety of the VE’s testimony and the record as a whole.
II.

Plaintiff’s Disability and Function Reports
In her “Disability Report – Adult,” Plaintiff indicated that she can speak and understand

English, read and understand English, and write more than her name in English. (Tr. 170) When
asked to list all of the physical or mental conditions that limit her ability to work, Plaintiff listed
“Graves disease and heart valve,” and “depression.” (Tr. 171) Plaintiff indicated that she last
worked in December 2004. (Id.) Prior to that time, Plaintiff had worked as a full-time nurse for
more than ten years. (Tr. 172) Plaintiff also provided a listing of medications she was taking,
which included eye drops and medication for depression.
Plaintiff also completed a “Function Report – Adult.” (Tr. 178-94) In that report,
Plaintiff provided a lengthy description of her daily activities, her abilities and limitations, and
other information. Plaintiff indicated that her eyes cross and she sees double, and that she was
also photophobic (light sensitivity). (Tr. 183) Plaintiff reported that she forgets instructions if
not written down, but also claimed that she was unable to read those instructions. (Tr. 185)
Plaintiff claimed that she was not able to drive due to her photophobia and double vision. (Tr.
193) Plaintiff listed a variety of ways in which depression affects her. (Tr. 191)
Plaintiff’s daughter completed a “Function Report – Third Party.” (Tr. 195-203) That
report included many of the same limitations and medical issues that Plaintiff had identified in

3

her function report. According to her daughter, Plaintiff’s hobby was to watch television and
movies every day. (Tr. 199)
III.

Medical Records
The administrative record includes extensive medical records. The Court has reviewed

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.

Psychiatric & Mental Health Treatment and Evaluations

The administrative record before this Court indicates that Plaintiff has seen a number of
health care professionals regarding her psychiatric condition. While the diagnoses and
impressions of the professionals vary, all agree that Plaintiff suffers from some form of mental
illness. In her visits with the mental health professionals, Plaintiff consistently referred to an
incident in 2002, when some of her co-workers reportedly assaulted her and caused her to suffer
a miscarriage. According to Plaintiff, she reported a medication mistake of a co-worker, and, as
a result, several African American women, including her boss, punched and kicked her. The
details of this incident are not entirely consistent between the reports of the various providers.
(Tr. at 293, 403) For example, in one of her reports, Plaintiff claims she tried to go to a hospital
after the incident but the hospital would not allow her in. (Tr. 234-35) In a later report, Plaintiff
told her physician that she did not seek medical treatment. (Tr. 403)
1.

John Rudersdorf, M.D. – Barnes-Jewish Hospital

In December 2010, Plaintiff was seen for a routine outpatient visit by Dr. John
Rudersdorf, M.D., at Barnes Jewish Hospital, Outpatient Psychiatric Clinic. (Tr. 233-38) On
Axis I, Dr. Rudersdorf assessed Plaintiff with a mood disorder, not otherwise specified,

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posttraumatic stress disorder, and rule out major depressive disorder. 2 One of the issues Plaintiff
discussed with Dr. Rudersdorf was that “she was all set for Social Security, and then tragedy
happened…. [A]fter that she … became so depressed and anxious that her daughter quit her job
to take care of her.” (Tr. 234) Plaintiff explained the “tragedy” to Dr. Rudersdorf. Plaintiff
stated that another doctor “screwed” her when they “filled out emergency room Social Security
paperwork….” (Id.) Plaintiff “continue[d] to talk about her need for disability and ask[ed] [Dr.
Rudersdorf] when [he could] fill out the paperwork.” (Tr. 234, 237) Dr. Rudersdorf noted that
Plaintiff’s records indicated a 2005 suicide attempt in which Plaintiff laid down in traffic.
Plaintiff denied that this attempt actually occurred. (Id.)
Dr. Rudersdorf saw Plaintiff again on January 31, 2011. (Tr. 239-41) Dr. Rudersdorf
observed that Plaintiff’s mood was better, and that she was “significantly less tearful and
despairing” than her prior visit. (Tr. 239) Plaintiff reported she had an improved in a number of
categories, including her mood, energy, focus, and concentration. (Tr. 240) Dr. Rudersdorf
concluded that Plaintiff’s progress was good and that she was “stable for outpatient
management.” (Tr. 241)
2.

Dr. Alan Aram, Psy. D. – Psychiatric Review Technique

On June 15, 2011, Dr. Alan Aram, Psy. D., completed a Psychiatric Review Technique in
checklist form. (Tr. 281-92) Dr. Aram’s assessment purportedly covered the period from
September 15, 2010, to June 15, 2011. (Tr. 281) Dr. Aram’s form appears incomplete. For
example, Dr. Aram checked a box marked “Depressive syndrome characterized by at least four
of the following” symptoms, but he did not check any box for any of the listed symptoms. (Tr.

“ʻRule out’ in a medical record means that the disorder is suspected, but not confirmed … more
information is needed to rule it out.” Byes v. Astrue, 687 F.3d 913, 916 n.3 (8th Cir. 2012)
(citing United States v. Grape, 549 F.3d 591, 593 n.2 (3d Cir. 2008)).
2

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283) As for functional limitations, Dr. Aram indicated that Plaintiff had no limitations
regarding: activities of daily living; maintaining concentration, persistence, or pace; and
episodes of decompensation of extended duration. (Tr. 289) Dr. Aram found Plaintiff to have
mild difficulties in maintaining social functioning. (Id.) Among his notes, Dr. Aram reported
that Plaintiff was “OK with written directions,” but forgot spoken directions if not written down.
(Tr. 291)
3.

Dr. John Rabun, M.D. – West Park Medical Clinic

On June 6, 2011, Dr. John Rabun, M.D., conducted an outpatient psychiatric evaluation
of Plaintiff, which included a review of her psychiatric records. (Tr. 293-95) Dr. Rabun
concluded that, although Plaintiff showed symptoms of depression, she provided a “mixed
picture.” (Tr. 295) Plaintiff was often able to “completely focus, concentrate and interact
appropriately, despite showing tears running down her cheeks.” (Id.) Dr. Rabun did not observe
significant evidence of PTSD, and concluded that she did not have symptoms consistent with the
level of major depression. (Id.) Dr. Rabun found that Plaintiff would have “mild limitations” in
her ability “to interact appropriately in a social setting and adapt to changes in a work
environment,” but that she also could “focus, concentrate, and remember instructions.” (Id.)
4.

Dr. Salamat 3

Plaintiff was seen several times in 2011 by a provider identified in the record as Dr.
Salamat. On August 26, 2011, Dr. Salamat completed an “Adult Psychiatric Evaluation” of
Plaintiff. (Tr. 367-70) Plaintiff reported that, upon losing Medicaid, she was unable to obtain
certain medications and started feeling sad and constantly tearful, and experienced frequent

3

Dr. Salamat’s full name is not clearly identified in the record. It appears that Dr. Salamat was a
resident physician. (Tr. 365) Plaintiff indicates that Dr. Salamat was affiliated with Jewish
Family and Children’s Services. (ECF No. 16 at 3; Tr. 46)

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nightmares and flashbacks. (Tr. 367) Plaintiff reported a 2002 suicide attempt that involved
intentionally crashing her car, but that she did not follow through on it. (Id.) Dr. Salamat
diagnosed Plaintiff with “MDD with psychosis? and R/O PTSD.” 4 (Tr. 369) Dr. Salamat noted
that, although Plaintiff denied tobacco use, she smelled of tobacco. (Tr. 370)
Dr. Salamat conducted follow-up visits with Plaintiff on September 9, October 7, and
November 11, 2011. (Tr. 363-66) The treatment notes indicate that, in her November 11, 2011
session, Plaintiff described her mood as “better” and Dr. Salamat observed she was not tearful
for the first time, and was smiling “but still looked depressed.” (Tr. 363)
On January 13, 2012, Dr. Salamat completed a Mental Medical Source Statement
(“MMSS”) at the request of Plaintiff’s lawyer. (Tr. 299-302) The MMSS was completed in a
checklist format, with no accompanying notes or explanations. With respect to activities of daily
living, Dr. Salamat rated Plaintiff to have moderate limitations in her abilities to function
independently, maintain reliability, and adhere to basic standards of neatness/cleanliness; and
marked limitations in her abilities to cope with normal stress and behave in an emotionally stable
manner. (Tr. 299) Regarding Social functioning, Dr. Salamat found Plaintiff to have a moderate
limitation in her ability relate to family, peers, and caregivers, and an extreme limitation relative
to her ability to interact with strangers or the general public. Dr. Salamat found no limitations
relating to Plaintiff’s abilities to accept instructions or respond to criticism, ask simple questions
or request assistance, or maintain socially acceptable behavior. (Tr. 300) Regarding
concentration, persistence or pace, Dr. Salamat opined that Plaintiff had moderate issues in her
ability to make simple and rational decisions. Dr. Salamat also opined that Plaintiff had marked
limitations relative to her ability to perform at a consistent pace without an unreasonable number
4

Based on context, the Court believes Dr. Salamat’s diagnosis was moderate depressive disorder
with possible psychosis, and rule out PTSD.

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and length of breaks, and to respond to changes in her work setting. Dr. Salamat found no
limitations relative to Plaintiff’s ability to maintain attention and concentration for extended
periods, and to sustain an ordinary routine without special supervision. (Id.) Dr. Salamat also
opined that Plaintiff would not be able to interact appropriately with coworkers, supervisors, or
the general public. (Tr. 301) Dr. Salamat found that Plaintiff’s psychological symptoms would
cause her to miss work and be late for work three or more times per month. (Tr. 301-02) Dr.
Salamat assessed Plaintiff’s disability onset date as 2002. (Tr. 302)
5.

Dr. Vaishali Shah, M.D. – Barnes-Jewish Hospital

The administrative record indicates that, between January and June 2012, Plaintiff was
seen several times by Dr. Vaishali Shah, M.D., at the Barnes-Jewish Hospital Psychiatry Clinic.
(Tr. 308-35) During an initial assessment on January 18, 2012, Dr. Shah noted that, although
Plaintiff was reliable, she was not a “very accurate historian.” (Tr. 328) In that initial visit, Dr.
Shah diagnosed Plaintiff with depression (not otherwise specified) and anxiety (not otherwise
specified), as well as with a personality disorder (not otherwise specified). Dr. Shah noted that
the diagnoses would be clarified upon more opportunities to speak with Plaintiff. (Tr. 330) Dr.
Shah’s notes also indicate that Plaintiff attempted suicide in 2005 by intentionally falling down
in the street. (Tr. 238)
Dr. Shah treated Plaintiff again for psychotherapy and medication management on
February 21, 2012. (Tr. 321) Dr. Shah repeated his assessment regarding depression, anxiety,
and personality disorder.
Dr. Shah’s notes indicate that Plaintiff had been conducting her own medical research.
For example, Plaintiff advised she was resistant to changing to a particular medication because it
can cause palpitations. (Tr. 323) Dr. Shah commented that Plaintiff should not diagnose serious

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medical conditions by reading text books. (Tr. 324) 5
Dr. Shah saw Plaintiff for psychotherapy and medication management on March 27,
2012. Dr. Shah repeated his earlier assessment regarding Plaintiff’s depression, anxiety, and
personality disorder. (Tr. 318) Dr. Shah modified Plaintiff’s medication.
On June 20, 2012, Dr. Shah saw Plaintiff again for psychotherapy and medication
management. Plaintiff reported an improved mood but trouble with “interpersonal aggression,”
which “did not appear to be in the context of psychosis.” (Tr. 310) At this point, Dr. Shah
modified his assessment. Dr. Shah diagnosed Plaintiff with major depressive disorder
(moderate, recurrent), PTSD (chronic), and a personality disorder (not otherwise specified). (Tr.
310)
6.

Dr. Keith Wood, M.D. – Barnes-Jewish Hospital

Between July 2012, and September 2012, Plaintiff was seen at Barnes-Jewish Hospital by
Dr. Keith Wood, M.D. The records indicate that the visits were for psychotherapy and
medication management. (Tr. 371-408)
On July 31, 2012, Dr. Wood completed a psychiatric intake assessment of Plaintiff. (Tr.
402-08) Dr. Wood’s initial assessment included diagnoses of mood disorder (not otherwise
specified), PTSD (chronic), nicotine dependence, and a history of personality disorder (not
otherwise specified). (Tr. 402) Plaintiff explained that she was able to function until the
traumatic event in 2002 when she said she was beaten by co-workers. (Tr. 403) In this account
of the event, Plaintiff claimed that she was pregnant and the fetus came out, but “it appeared to
be ‘an egg, instead of a baby.’” (Id.) Plaintiff advised that she continued to work for the same

5

Dr. Shah’s notes quote Plaintiff as indicating a belief that her daughter’s boyfriend had
pancreatic cancer because “doctors could not find gallstones, which are present in 85% cases of
pancreatitis.” (Tr. 324)

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employer for another two years before her symptoms of depression and anxiety rendered her
unable to work. (Id.) Plaintiff advised Dr. Wood that she attempted suicide twice. She
recounted how, in 2005, she laid in the street as though she had fallen in traffic. (Tr. 403-04)
Plaintiff also claimed that, in 2008, she took a Percocet, knowing that she was allergic to the
medication. Plaintiff was not injured as a result of either alleged suicide attempt. (Tr. 404) Dr.
Wood noted that he was “concerned about [Plaintiff’s] connection with reality, given the oddness
of her current behaviors and [the] bizarre character of her stories.” 6 (Tr. 406)
Dr. Wood saw Plaintiff on August 16, 2012, for psychotherapy and medication
management. (Tr. 394) Plaintiff reported an anxious but stable mood, with normal sleep,
appetite, energy and concentration. Plaintiff was engaged in recreational activities. (Id.)
Plaintiff reported that upon watching the movie “Signs,” she felt God was speaking to her and
telling her to be more religious. Plaintiff asked whether she might have symptoms of
schizophrenia, but she was reluctant to take antipsychotics because they “killed [her] sex drive.”
(Id.) Dr. Wood diagnosed Plaintiff with psychosis (not otherwise specified), PTSD (chronic,
provisional), and nicotine dependence. (Tr. 395) Dr. Wood’s assessment of Plaintiff’s condition
on August 27, 2012, was largely consistent with the notes form the August 16th visit.
After a visit on September 4, 2012, Dr. Wood modified his diagnosis to schizophrenia,
undifferentiated type (provisional) and nicotine dependence. (Tr. 383) Dr. Wood did not
include any diagnosis of PTSD. On September 17, 2012, Dr. Wood added a diagnosis of
depression (not otherwise specified). (Tr. 376)

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In this regard, Dr. Wood referred to Plaintiff’s description of her attack in 2002 as “excessively
bizarre and nonsensical in terms of the events.” In particular, Dr. Wood referenced the lack of
police involvement, the fact that the patient continued to work at [the] facility and the odd
explanation of her losing a fetus and stating that it was ‘an egg.’” (Tr. 406)

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B.

Physical Treatment and Evaluations

A substantial physical health issue before the Court involves Plaintiff’s eye and vision
health. The administrative record indicates a history of Graves’ Disease, which resulted in eye
and vision related medical issues. For example, in August 2008, Plaintiff was admitted to
DePaul Health Center for “thyrotoxicosis w/ storm” and “colitis.” 7 (Tr. 337)
Between September 2009 and May 2012, Plaintiff was seen several times by physicians
at Barnes-Jewish Hospital relative to her Graves’ Disease and thyroid issues. (Tr. 255-71, 35361) These physicians included Dr. Amy Riek, M.D., Dr. James Heins, M.D., Dr. David Rome,
M.D., Dr. Annie Haase, M.D., Dr. William Clutter, M.D., and Dr. David Rometo, M.D.
Regarding Plaintiff’s eye issues associated with Graves’ Disease, the physicians encouraged
Plaintiff to see a specialist, Dr. Custer, and to quit smoking. 8 (Tr. 256, 263, 271, 354, 360)
On December 30, 2009, Plaintiff was seen by Dr. Adam Buchanan, M.D., on referral
from Dr. Riek. (Tr. 346) Plaintiff complained about double vision, “which occurs three-to-four
times per day and lasts only for a few seconds.” (Id.) Dr. Buchanan described this as “brief
intermittent diplopia.” (Tr. 347) The treatment notes indicate Plaintiff’s vision, with correction,
as 20/50 and 20/60. Dr. Buchanan also stressed to Plaintiff “the great importance of smoking
cessation.” (Id.)

In a follow-up visit on February 24, 2010, Dr. Buchanan noted that Plaintiff

still smoked and that her vision was tested at 20/40 and 20/50, with correction. (Tr. 347, 350)
Between March 2010 and August 2010, Plaintiff was seen by the Washington University
Eye Center and Dr. Philip Custer, M.D., relative to her thyroid eye disease. Dr. Custer found
Plaintiff to have persistent thyroid eye disease and noted that his findings were “relatively
7

The record from DePaul Hospital is sparse. The Court notes that the record before the ALJ
who rejected Plaintiff’s prior applications for DIB and SSI indicates Plaintiff’s urine tested
positive for opiates and marijuana during her stay at DePaul. (Tr. 70)
8
Plaintiff smoked a pack of cigarettes per day for thirty years. (Tr. 270)

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stable.” (Tr. 303) Plaintiff’s visual acuity was rated at 20/30 and 20/25. (Id.)
Dr. Steven Couch, M.D., treated Plaintiff on November 3, 2010. (Tr. 224-25) Dr. Couch
examined Plaintiff relative to Graves’ ophthalmopathy. Dr. Couch described Plaintiff’s
condition as “sable if not improved,” and “doing quite well.” (Tr. 224) Dr. Couch noted that
Plaintiff’s improvement over the prior year, stating that “she does occasionally have binocular
oblique diplopia, but this has significantly decreased since it started many years ago. She also
has a decrease in pain, redness, irritation, and tearing.” (Id.) Plaintiff’s vision with correction
was assessed at 20/40 (right) and 20/50 (left). (Id.)
On June 6, 2011, Dr. Raymond Leung, M.D. performed a consultative physical exam of
Plaintiff. (Tr. 274-80) Although Plaintiff reported chest pains, with pain on a scale of 10 out of
10 during exertion, Dr. Leung found that she did not appear to be in distress and noted no cardiac
issues. (Tr. 274-75) Dr. Leung’s impression included Graves’ Disease, but he did not note any
other significant physical impairments. 9
On June 21, 2011, Dr. John Jung, M.D., conducted a case analysis of Plaintiff. Dr. Jung
noted Plaintiff’s thyroid issue was treated with medication and had “good control.” (Tr. 298)
Plaintiff’s double vision was occasional and significantly decreased and she had no noted optic
neuropathy. Dr. Jung noted Plaintiff’s Graves’ Disease had been “very adequately treated and
controlled.” (Id.)

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For example, Dr. Leung concluded that Plaintiff exhibited a full range of motion in all of her
joints, and that her pinch, arm, leg, and grip strength were all five out of five. (Tr. 276)

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IV.

The Hearing Before the ALJ
The ALJ conducted a hearing on September 13, 2012. Plaintiff was present with an

attorney. Also present was a vocational expert (“VE”), Brenda Young. Both Plaintiff and the
VE testified at the hearing.
A.

Plaintiff’s Testimony

In response to questions from the ALJ, Plaintiff described her current living situation.
Plaintiff explained that she did not socialize other than with her boyfriend, her daughter, and her
daughter’s boyfriend. (Tr. 17-18) Plaintiff described her thyroid storm issues, which began in
August 2008. Plaintiff claimed that, although everyone thought she was awake, she was really
unconscious for eight days. (Tr. 19) Plaintiff admitted that she continued to smoke. (Id.)
Plaintiff also discussed some of her medications and side effects. (Tr. 19-21)
Plaintiff’s attorney also questioned her. Plaintiff explained her mental problems,
including her worries and fears, daily panic attacks, yelling incidents, and her reluctance to leave
her house. (Tr. 22-24) Plaintiff testified that it takes her all day to clean her kitchen. Plaintiff
described that she watches television, but cannot concentrate. (Tr. 26) Plaintiff stated that she
cannot read due to double vision, and that “by the time [she is] finished with half the sentence,
[she has] lost the meaning of what came before.” (Id.) Plaintiff claimed it took her three days to
read a paper her lawyer had given her. (Tr. 27) Plaintiff also testified that she could not
remember what happened from February 2004, until her thyroid storm in August 2008, and that
she continues to have memory problems. (Tr. 27-28) Plaintiff described her energy as better
than it had been. (Tr. 28)
B.

The VE’s Testimony

The VE, Brenda Young, testified without objection from Plaintiff’s counsel. The VE

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acknowledged that she was present during Plaintiff’s testimony. The VE also explained that her
testimony was in reference to the St. Louis metropolitan area. The VE identified Plaintiff’s past
work as a licensed practical nurse (“LPN”), which was classified as medium, and semi-skilled,
but that the work was sometimes performed at the heavy category. (Tr. 30-31)
The ALJ posed a series of hypothetical questions to the VE, with each question building
upon the prior question by adding limitations/restrictions. In the first question, the ALJ asked
the VE to consider a hypothetical claimant, having the same age, education and work experience
as Plaintiff, limited to light work, and a further limitation of “simple instructions communicated
verbally rather than in written form.” (Tr. 31) The VE testified that such a claimant could not
return to her past work as an LPN, but she could be employed as a “dining or cafeteria attendant”
(DOT Code 311.677-010) or in “light janitorial work” (DOT Code 323.687-014). (Tr. 31-32)
For her second hypothetical question, the ALJ asked the VE to include an additional
limitation of a “low stress environment, with low-stress defined as occasional decision-making
and occasional changes in the work setting.” (Tr. 32) The ALJ also asked the VE to include a
limitation of only occasional judgment required, and only occasional interaction with the public,
coworkers, and supervisors. (Id.) The VE testified that such a claimant would be capable of the
same two jobs she described earlier – cafeteria attendant or light janitorial work.
As a third hypothetical, the ALJ asked the VE to include a limitation of “basically no
interaction with the public.” (Tr. 32) The VE testified that such a person would still be
employable. (Tr. 33)
For her fourth and fifth hypotheticals, the ALJ asked the VE to consider a claimant would
also be off-task twenty percent of the time or not present for twenty percent of the time.
According to the VE, such a person would not be employable. (Id.)

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The VE testified that her answers were consistent with the DOT. (Id.) Plaintiff’s
attorney did not question the VE.
V.

The ALJ’s Decision
In a decision dated November 16, 2012, the ALJ determined that Plaintiff was not

disabled under the Social Security Act. (Tr. 35-55) Consistent with the VE’s testimony, the ALJ
found that Plaintiff had the residual functional capacity to perform the requirements of
occupations such as dining room attendant and light janitorial. (Tr. 54)
In arriving at her decision, the ALJ followed the required five-step inquiry. The ALJ
determined that Plaintiff had the severe impairments of “Graves’ Disease, colitis, post-traumatic
stress disorder/anxiety, and depression, and a “non-severe impairment of occasional double
vision.” (Tr. 40) The ALJ further determined that, despite her impairments, Plaintiff retained
the residual functional capacity (“RFC”) to perform “light work” 10 with the following additional
limitations/restrictions: (1) plaintiff “requires a job that allows simple verbal instructions rather
than written instructions;” (2) plaintiff “is capable of low stress work (with ‘low stress’ defined
as occasional decision-making and occasional changes in work setting);” (3) plaintiff “is able to
exercise occasional work-related judgment;” and (4) plaintiff can “occasionally interact[] with
co-workers and supervisors, and … engage in occasional to no interaction with the public.” (Tr.

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Light work as defined in the Commissioner’s regulations:
involves lifting no more than twenty pounds at a time with frequent lifting or
carrying of objects weighing up to ten 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 . . . .
20 C.F.R. § 404.1567(b).

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41-42)
The ALJ supported her RFC determination with a thorough analysis of the record
evidence. (Tr. 42-53) The ALJ considered Plaintiff’s subjective allegations regarding her
symptoms and limitations, but found her not credible. (Tr. 43, 50) The ALJ thoroughly
considered the record evidence regarding Plaintiff’s exertional and non-exertional limitations,
including her mental health problems. As noted above, one of the persons providing mental
health treatment to Plaintiff was Dr. Salamat. In support of her application, Plaintiff submitted
the MMSS prepared by Dr. Salamat that included numerous marked and some extreme
limitations. The ALJ gave Dr. Salamat’s opinions little weight. (Tr. 47-48) In so doing, the
ALJ explained that Dr. Salamat’s opinions suggested “institutional level disability.” (Tr. 47)
The ALJ further explained how, in the ALJ’s opinion, Dr. Salamat’s opinions were internally
inconsistent, inconsistent with other medical evidence in the record as a whole, and inconsistent
with his own treatment notes. (Id.) The ALJ also observed that Plaintiff was “less than credible”
and had been deceptive with Dr. Salamat. (Tr. 47-48) For example, Plaintiff denied smoking
but Dr. Salamat reported that she smelled of smoke. (Tr. 47) For these reasons, the ALJ gave
Dr. Salamat’s opinions little weight.
After examining the medical evidence, the ALJ explained that, other than Dr. Salamat, no
other treating physician “ever found or imposed any long term, significant and adverse mental or
functional limitations upon [Plaintiff’s] functional capacity.” (Tr. 49) Similarly, there was no
medical evidence indicating that Plaintiff required surgery or prolonged hospitalization for any
of her conditions after her alleged onset date. (Id.) Moreover, the ALJ relied on the fact that
Plaintiff had a documented history of non-compliance with respect to smoking and its impact
upon her Graves’ Disease. (Tr. 50)

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The ALJ concluded that, although Plaintiff could not return to her past relevant work as a
nurse, she could perform other jobs that exist in substantial numbers in the state and national
economies. (Tr. 53-54) In making her determinations, the ALJ relied on the testimony of the
VE. The ALJ concluded that Plaintiff had the ability to perform the requirements of at least two
representative jobs – dining room attendant and light janitorial work. Accordingly, the ALJ
concluded that Plaintiff was not under a disability under the Act. (Tr. 54)
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 SSI benefits, [Plaintiff] must prove that she 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 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.” 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) she was severely impaired; (3) her

17

impairment was, or was comparable to, a listed impairment; (4) she could perform past relevant
work; and if not, (5) whether she could perform any other kind of work.” Martise v. Astrue, 641
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,
964 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.

18

Stewart v. Sec’y of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (citation
omitted).
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 her initial brief, Plaintiff raises three issues, which all challenge the ALJ’s RFC

determination. In her reply brief, Plaintiff also questions the ALJ’s step five determination that
Plaintiff retains the RFC to work as a dining/cafeteria attendant or janitor in view of an alleged
conflict between Plaintiff’s RFC, as stated by the ALJ, and the requirements for those jobs. As
noted below, the Court concludes that the ALJ did not err in assessing Plaintiff’s RFC. Although
the ALJ arguably erred in relying on the VE’s testimony relative to the dining/cafeteria position,
remand is not necessary because there was no such error regarding the VE’s testimony involving
Plaintiff’s ability to perform work associated with a light janitorial position. The Court
addresses each of Plaintiff’s proffered issues below.
A.

Substantial Evidence Supports the ALJ’s RFC Determination

Plaintiff first argues that the ALJ’s RFC lacks a substantial basis of support in the record.
Specifically, Plaintiff contends that no medical opinion in the record supports the ALJ’s RFC

19

finding in that it contains unsupported limitations and lacks limitations that reflect the severe
impairments found by the ALJ. Plaintiff also contends that the RFC is flawed because the ALJ
failed to properly weigh the opinions of Drs. Salamat and Aram. Finally, Plaintiff asserts that
the ALJ failed to adequately consider her chronic mental illness. 11 The Court disagrees.
1.

The ALJ’s Adverse Credibility Determination

The Court first addresses the ALJ’s adverse credibility determination. Although Plaintiff
has not raised a specific challenge in this regard, the evaluation of Plaintiff’s credibility is
necessary to a full consideration of the ALJ’s RFC determination. See Wildman, 596 F.3d at
969 (explaining that an “ALJ’s determination regarding [a claimant’s] RFC was influenced by
[the ALJ’s] determination that [claimant’s] allegations were not credible”) (citing Tellez v.
Barnhart, 403 F.3d 953, 957 (8th Cir. 2005)). Moreover, the Eighth Circuit has instructed that,
in the course of making an RFC determination, the ALJ is to consider the credibility of a
plaintiff’s subjective complaints in light of the factors set forth in Polaski v. Heckler, 739 F.2d
1320, 1322 (8th Cir. 1984). See also 20 C.F.R. §§ 404.1529, 416.929. The factors identified in
Polaski include: a plaintiff’s daily activities; the location, duration, frequency, and intensity of
his symptoms; any precipitating and aggravating factors; the type, dosage, effectiveness, and side
effects of her medication; treatment and measures other than medication she has received; and
any other factors concerning her impairment-related limitations. See Polaski, 739 F.2d at 1322;
20 C.F.R. §§ 404.1529, 416.929. An ALJ is not, however, required to discuss each Polaski
factor and how it relates to a plaintiff’s credibility. See Partee v. Astrue, 638 F.3d at 860, 865
(8th Cir. 2011) (stating that “[t]he ALJ is not required to discuss methodically each Polaski

11

Although Plaintiff did not couch her “chronic mental illness” argument specifically in terms of
the ALJ’s RFC analysis, it appears from context that Plaintiff is referring to her ability to
function in a workplace. (ECF No. 16 at 14-15)

20

consideration, so long as he acknowledged and examined those considerations before
discounting a [plaintiff’s] subjective complaints”) (internal quotation and citation omitted);
Samons v. Astrue, 497 F.3d 813, 820 (8th Cir. 2007) (stating that “we have not required the
ALJ’s decision to include a discussion of how every Polaski factor relates to the [plaintiff’s]
credibility”).
This Court reviews the ALJ’s credibility determination with deference and may not
substitute its own judgment for that of the ALJ. See Gregg v. Barnhart, 354 F.3d 710, 713 (8th
Cir. 2003) (holding that “[i]f an ALJ explicitly discredits the [plaintiff’s] testimony and gives
good reasons for doing so, [the reviewing court] will normally defer to the ALJ’s credibility
determination”); Pearsall, 274 F.3d at 1218.
In this case, the ALJ concluded that Plaintiff was “not credible with regard to disabling
limitations of either a physical or mental nature.” (Tr. 50) This determination is important in the
present case because, “Dr. Salamat, as a treating source, completed an opinion based primarily
on [Plaintiff’s] subjective complaints.” (Id.) The ALJ did not simply discount Plaintiff’s
subjective complaints based on her own observations. Rather, the ALJ’s decision shows that she
carefully considered the record as a whole, including, but not limited to, Plaintiff’s prior work
record, third party observations, treating and examining sources, as well as the dosage,
effectiveness and side effects of medications. (Tr. 50-51) The ALJ found that Plaintiff’s
“medically determinable impairments could reasonably be expected to cause some of the alleged
symptoms; however, [Plaintiff’s] statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible to the extent they are inconsistent with [the ALJ’s
RFC] assessment.” (Tr. 51)
The ALJ gave ample good reasons for her adverse credibility finding, and the Court is

21

satisfied that the ALJ properly considered Plaintiff‘s subjective complaints under the Polaski
rubric. The ALJ expressly considered the requirements of Polaski and 20 C.F.R. §§ 404.1529,
416.929. (Tr. 51) The ALJ supported her adverse credibility determination with a review of
numerous factors. For example, the ALJ noted that Plaintiff was not compliant with her
treatment options. (Tr. 51) The record and the law support the ALJ in this regard. Plaintiff
continued to smoke, despite being advised numerous times that she needed to quit in view of her
Graves’ Disease and eye conditions. (Tr. 256, 263, 271, 350, 354, 360) See Dunahoo v. Apfel,
241 F.3d 1033, 1037 (8th Cir. 2001) (failure to follow prescribed course of treatment may be
weighed against claimant’s credibility when assessing subjective complaints). Likewise, the
ALJ considered that Plaintiff was “reluctant to take antipsychotic medications due to potential
interference with her sex drive.” (Tr. 51) The ALJ also noted that Plaintiff provided arguably
inconsistent information regarding the impact of antipsychotic medications. On the one hand,
Plaintiff claimed she was unable to have sex due to being prescribed Remeron. On the other,
after Plaintiff’s Remeron dosage was increased she advised providers Barnes-Jewish Hospital
that she thought she was pregnant. (Tr. 52, 353)
The record also supports the ALJ’s finding that Plaintiff had not been candid with some
of her own physicians. Although Plaintiff told Dr. Salamat that she did not smoke, Dr. Salamat
noted that she smelled of tobacco. (Tr. 370) When Plaintiff first experienced her “thyroid
storm” in August 2008, she denied drug use, but her urine tested positive for opiates and
marijuana. (Tr. 52, 70, 74) Plaintiff told some of her providers of a prior suicide attempt in
2005, but denied the attempt to Dr. Rudersdorf. (Tr. 234)
Substantial evidence in the record also supports the ALJ’s conclusions that that Plaintiff
tended to exaggerate and embellish her situation, and was strongly motivated to obtain disability

22

benefits. See Ramirez v. Barnhart, 292 F.3d 576, 581 n.4 (8th Cir. 2002) (explaining that, while
not dispositive itself, the ALJ may properly consider a claimant’s financial motivations in
making a credibility determination). For example, Plaintiff complained to Dr. Rudersdorf that
her prior doctor “screwed” her out of her chance to obtain benefits, and asked Dr. Rudersdorf
when he could fill out her disability paperwork. (Tr. 234, 237) While Plaintiff testified
regarding her difficulties reading (due to double vision), the record showed she was able to
conduct her own medical research. (Tr. 52) Furthermore, the medical evidence indicated that
Plaintiff’s double vision was limited in terms of both frequency and duration, and had improved
over time. 12 In fact, in her own disability report, Plaintiff acknowledged that she could read and
understand English. (Tr. 170)
In reviewing the record in this case, therefore, the Court is fully satisfied that the ALJ
complied with the standards outlined in Polaski and did not err in finding Plaintiff not credible.
2.

The ALJ’s RFC Determination

Plaintiff contends that the ALJ’s RFC finding lacks a substantial basis in the record and is
incomplete. In this regard, Plaintiff argues that the ALJ’s RFC “does not correspond with any
medical opinion in the record,” and that the ALJ “failed to build a bridge between the evidence
and the RFC finding.” (ECF No. 16 at 10, 12) The Court concludes that substantial evidence
supports the ALJ’s RFC determination in this case.
12

As noted above, Dr. Couch’s treatment notes described Plaintiff’s eye problems as improving
in 2010, stating that “she does occasionally have binocular oblique diplopia, but this has
significantly decreased since it started many years ago. She also has a decrease in pain, redness,
irritation, and tearing.” (Tr. 224) In 2009, Plaintiff described her double vision to Dr. Buchanan
as occurring three or four times per day, and lasting for a few seconds. (Tr. 346) Dr. Buchanan
described Plaintiff’s condition as brief and intermittent. (Tr. 347) Stated differently, Plaintiff’s
double vision was of only limited duration in 2009 and had improved further by 2010. There is
no notable record of any treatment for Plaintiff’s alleged eye problems after 2010. Dr. Jung’s
case analysis in 2011 reported that Plaintiff’s Graves’ Disease was “very adequately treated and
controlled.” (Tr. 298)

23

A claimant’s RFC is the most that claimant can do despite their limitations. 20 C.F.R. §
404.1545(a)(1). In determining a claimant’s RFC, the ALJ should consider “all the evidence in
the record, including the medical records, observations of treating physicians and others, and an
individual’s own description of [her] limitations.” Krogmeier v. Barnhart, 294 F.3d 1019, 1024
(8th Cir. 2002) (internal quotations omitted). While the RFC determination occurs at step four,
where Plaintiff has the burden of proof, the Eighth Circuit has explained that the ALJ has
primary responsibility for determining the RFC. Id.
As an initial matter, to the extent Plaintiff’s argument suggests an ALJ’s RFC must
correspond to one of the medical opinions in the record, her argument is incorrect. See Martise,
641 F.3d at 927 (explaining that ALJ’s are not required to “rely entirely on a particular
physician’s opinion or choose between the opinions [of] any of the claimant’s physicians”)
(internal quotations omitted). In any event, the record indicates that the ALJ conducted a
thorough and searching review of the record in making her RFC determination. See id. The ALJ
considered Plaintiff’s own function report, a third party function report submitted by Plaintiff’s
daughter, Plaintiff’s testimony, and an exhaustive review of the medical evidence. (Tr. 42-43,
44-47) As noted above, in conducting her RFC analysis, the ALJ gave detailed consideration to
Plaintiff’s credibility.
Despite the ALJ’s thorough consideration, the Court will briefly review each of the ALJ’s
RFC determinations. The ALJ concluded that Plaintiff retained the RFC for light work, with the
following additional limitations/restrictions: (1) plaintiff “requires a job that allows simple
verbal instructions rather than written instructions;” (2) plaintiff “is capable of low stress work
(with ‘low stress’ defined as occasional decision-making and occasional changes in work
setting);” (3) plaintiff “is able to exercise occasional work-related judgment;” and (4) plaintiff

24

can “occasionally interact[] with co-workers and supervisors, and … engage in occasional to no
interaction with the public.” The Court does not read Plaintiff’s arguments as taking issue with
the conclusion that she would be limited to light work.
Regarding the verbal instruction limitation, the Court first notes that substantial evidence
in the record suggests the ALJ would have been justified in omitting this limitation. Plaintiff
formerly worked as an LPN and completed several years of college. There is no doubt that
Plaintiff can read, write, and speak English. While Plaintiff experienced significant vision and
eye problems relative to her Graves’ Disease and thyroid problems, the medical evidence
(including treatment notes from Drs. Couch, Custer, and Buchanan) indicates that, as of the date
of her alleged disability, her vision issues were treatable, mild, sporadic, of a limited duration,
and had improved over time. (Tr. 224, 346-47) Moreover, Plaintiff herself acknowledged that
she could read. (Tr. 170) Finally, Dr. Rabun concluded that Plaintiff could remember
instructions. (Tr. 295) Accordingly, the ALJ cannot be found to have erred in including a verbal
instruction limitation, and if there was any error, it was harmless to Plaintiff. See Byes v. Astrue,
687 F.3d 913, 918 (8th Cir. 2012); Wiley v. Colvin, No. 4:14 CV 330 TIA, 2015 WL 1411943
(E.D. MO Mar. 26, 2015).
Ample record evidence also supports the ALJ’s low stress work environment and
occasional interaction limitations. While Plaintiff’s mental health diagnoses varied among the
examining and treating physicians, Plaintiff’s arguments do not take issue with the ALJ’s
conclusion that she suffers from the severe impairments of depression and PTSD/anxiety.
Plaintiff and her daughter both described Plaintiff’s problems with anger management. (Tr. 17894, 195-03) Dr. Rabun examined Plaintiff and concluded that she would only have mild
limitations in her ability to interact appropriately in social settings, adapt to changes in the

25

workplace, and remember instructions. (Tr. 295) Therefore, there was record evidence, both
medical and otherwise, to support the inclusion of a low stress work environment and limited
interaction restrictions.
Finally, the record supports the ALJ’s “occasional work-related judgment” limitation.
All of Plaintiff’s mental health issues were treated on an out-patient basis. (See, e.g., Tr. 241,
308-05, 371-408) Dr. Rabun examined Plaintiff after her alleged disability onset date and found
that she was often able to “completely focus, concentrate and interact appropriately,” despite her
crying. (Tr. 295) Dr. Rabun also found that Plaintiff had mild limitations in her ability to adapt
to changes in a work environment, and that she could also remember instructions. (Id.) Further,
although the ALJ gave only little weight to Dr. Salamat’s opinions, even Dr. Salamat found
Plaintiff had no limitations regarding her abilities to: accept instructions or respond to criticism;
ask simple questions or request assistance; and sustain an ordinary routine without special
supervision. (Tr. 300) Likewise, Dr. Salamat found Plaintiff to be only moderately limited in
her ability to make simple and rational decisions. (Id.) Therefore, this Court cannot say that the
record lacks support for the ALJ’s conclusion that Plaintiff retained the ability to exercise
occasional work-related judgment.
3.

The ALJ’s Consideration of Medical Opinion Evidence

Plaintiff also argues that the ALJ erred in discounting Dr. Salamat’s opinions, as reflected
in his Mental Medical Source Statement (“MMSS”). Plaintiff contends that the ALJ failed to
comply with Social Security regulations in weighing those opinions. (ECF No. 16 at 12-14) The
Court disagrees with this characterization of the ALJ’s decision.
In determining a claimant’s RFC, an ALJ must at least consider her treating physician’s
opinion(s). Under the Commissioner’s regulations, a treating physician’s opinion is ordinarily

26

afforded controlling weight. See 20 C.F.R. § 404.1527. “An ALJ may discount or even
disregard the opinion of a treating physician where other medical assessments are supported by
better or more thorough medical evidence, or where the treating physician renders inconsistent
opinions that undermine the credibility of such opinions.” Perkins v. Astrue, 648 F.3d 892, 89798 (8th Cir. 2011) (internal quotations omitted). Similarly, “[a]n ALJ may justifiably discount a
treating physician’s opinion when that opinion ‘is inconsistent with the physician’s clinical
treatment notes.’” Martise, 641 F.3d at 925 (quoting Davidson v. Astrue, 578 F.3d 838, 843
(8th Cir. 2009)). Furthermore, “‘[a] treating physician’s opinion deserves no greater respect
than any other physician’s opinion when [it] consists of nothing more than vague, conclusory
statements.’” Wildman, 596 F.3d at 964 (quoting Piepgras v. Chater, 76 F.3d 233, 236 (8th Cir.
1996)).
In this case, the ALJ’s consideration of Dr. Salamat’s MMSS was thorough and wellconsidered. First, the Court observes that Dr. Salamat’s MMSS was completed in a checklist
format, with virtually no supporting explanatory or clinical information. Dr. Salamat listed his
diagnosis simply as “Axis I: MDD & psychotic features PTSD,” with no further notes,
comments, or explanation. (Tr. 302) The Eighth Circuit has explained that such checklist
opinions, with little or no elaboration, have limited evidentiary value. See Wildman, 596 F.3d at
964 (citation omitted); see also Johnson v. Astrue, 628 F.3d 991, 994 (8th Cir. 2011).
Contrary to Plaintiff’s characterization, the record clearly indicates that the ALJ
considered the length and frequency of Dr. Salamat’s treatment relationship. In this regard, it
should be noted that the record shows that Dr. Salamat’s treating relationship with Plaintiff was
rather brief, with a few visits between August 2011 and November 2011, culminating in the
MMSS which was dated January 13, 2012, and completed at the request of Plaintiff’s lawyer.

27

The record also shows that Plaintiff switched physicians and returned to Barnes-Jewish Hospital
for her psychiatric treatment after Dr. Salamat provided the MMSS. (Tr. 371-408) The record
indicates that the ALJ referenced and considered all of Dr. Salamat’s treatment notes and
diagnoses, in addition to considering the opinions in Dr. Salamat’s MMSS. (Tr. 46-48)
The ALJ also gave several specific and appropriate reasons for giving the opinions in Dr.
Salamat’s MMSS little weight. (Tr. 47-48) First, those opinions were internally inconsistent and
inconsistent with his own treatment records. For example, without providing any explanation at
all, Dr. Salamat opined that Plaintiff had extreme limitations in her ability to interact with
strangers or the general public, but no limitation relative to her ability to maintain socially
acceptable behavior. (Tr. 300) Similarly, Dr. Salamat opined that Plaintiff had marked
limitations in her ability to perform at a consistent pace without an unreasonable number and
length of breaks, and to respond to changes in the work setting. Dr. Salamat also opined that
Plaintiff was capable of no more than two hours per day interacting appropriately with
supervisors and applying a commonsense understanding to carry out simple instructions.
Despite these severe restrictions, Dr. Salamat also opined that Plaintiff had no limitations in her
abilities to maintain attention and concentration for extended periods or to sustain an ordinary
routine without special supervision. (Tr. 300)
The ALJ also concluded that Dr. Salamat’s opinions were in conflict with other medical
sources and the record as a whole. In making this assessment, the ALJ extensively reviewed the
examination notes of Drs. Shah and Wood. (Tr. 47-49) The ALJ also reviewed and considered
the opinions and treatment notes of Drs. Rabun and Rudersdorf. (Tr. 45-46) This Court
concludes that substantial evidence supports the ALJ’s determination that Dr. Salamat’s opinions
conflicted with other substantial record evidence. See Johnson, 628 F.3d at 994.

28

The fact that the ALJ failed to mention the opinion of Dr. Aram is of no moment to the
issues on appeal. See Wildman, 596 F.3d at 966 (explaining that a failure to cite specific
evidence does not indicate that the ALJ failed to consider that evidence). In any event, Dr.
Aram’s opinions suggested very few limitations on Plaintiff’s mental abilities. The Court can be
confident that a recitation of Dr. Aram’s opinion would have served to further confirm the ALJ’s
decision to discount Dr. Salamat’s opinions. 13 See Byes, 687 F.3d at 917-18 (applying harmless
error analysis to alleged mistakes by ALJ).
As discussed above, in discounting Dr. Salamat’s opinions, the ALJ also considered
Plaintiff’s credibility and the fact that she had not been entirely truthful with Dr. Salamat. (Tr.
48-49, 50) Accordingly, the ALJ did not err in giving Dr. Salamat’s vague and conclusory
opinions little weight, nor did the ALJ err in relying on the opinions of other physicians,
including Dr. Rabun. See Perkins, 648 F.3d at 897-98; Andrews v. Colvin, No. 14-3012, 2015
WL 4032122 at *4 (8th Cir. July 2, 2015); Wildman, 596 F.3d at 964. See also Buckner, 646
F.3d at 556 (a reviewing court does not reweigh the evidence and should disturb an ALJ’s
decision only if it falls outside “the available zone of choice”).
4.

Plaintiff’s Chronic Mental Illness

Plaintiff argues that the ALJ’s evaluation of her functioning failed to appropriately
consider her chronic mental illness. (ECF No. 16 at 14-15). The Court again must disagree with
Plaintiff’s characterization of the ALJ’s decision. The record in this matter includes mental
health treatment and examination records from numerous providers covering 2010 through 2012.
The ALJ’s decision expressly considered the records from virtually every treating and examining
13

Dr. Aram found Plaintiff had only a mild limitation relative to maintaining social functioning,
and no limitations relative to the activities of daily living and her ability to maintain
concentration, persistence or pace. (Tr. 289) Dr. Aram found Plaintiff only partially credible.
(Tr. 291)

29

physician, often in substantial detail. Thus, when viewed as a whole, the record makes clear that
the ALJ was aware of and thoroughly considered Plaintiff’s mental illness. See Wildman, 596
F.3d at 966. Furthermore, as the Commissioner correctly notes, many of the medical sources
indicated that Plaintiff’s mental health condition was not severe or had improved in numerous
respects with treatment and medications. (ECF No. 20, Tr. 240, 293-95, 310, 363) Dr. Rabun
found Plaintiff to have only a few mild limitations, and that she could focus, concentrate, and
remember instructions. (Tr. 293-95) As explained above, the ALJ concluded that Plaintiff
lacked credibility relative to the severity of her mental limitations. That conclusion is supported
by substantial evidence. Finally, the Court notes that Plaintiff has not proffered how the ALJ’s
RFC should have been altered to adequately account for her mental health problems. Martise,
641 F.3d at 923 (“[While] [t]he ALJ bears the primary responsibility for determining a
claimant’s RFC and because RFC is a medical question, some medical evidence must support the
determination of the claimant’s RFC…. [T]he burden of persuasion to prove disability and
demonstrate RFC remains on the claimant.”) (internal quotations omitted).
Having considered the record evidence as a whole, the Court is satisfied that the ALJ
adequately articulated Plaintiff’s RFC, including a consideration of her mental impairments. Cf.
England v. Astrue, 490 F.3d 1017, 1023 (8th Cir. 2007) (hypothetical questions need not frame a
claimant’s impairments in diagnostic terms, but can rest on the “concrete consequences of those
impairments”) (internal quotations omitted). Accordingly, Plaintiff’s claim that the ALJ failed to
appropriately consider her chronic mental health issues cannot be sustained on the basis of the
record before this Court.
5.

Conclusion –Substantial Evidence Supports the ALJ’s RFC Analysis

For the foregoing reasons, the Court finds that the ALJ’s RFC determination is supported

30

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.
B.

Potential Conflict regarding VE Testimony

In her reply brief, Plaintiff arguably raised a new issue of a conflict between (1) the RFC
limitations included in the hypothetical questions posed to the VE, and (2) the specific
requirements for dining room attendants and light janitorial work, as delineated in the Dictionary
of Occupational Titles (“DOT”) and its companion volume, the Selected Characteristics of
Occupations (“SCO”). 14 In particular, relying on Moore v. Colvin, 769 F.3d 987 (8th Cir. 2014),
Plaintiff argues that the requirements for dining room attendant and light janitorial work both
include an ability to read at 95-120 words per minute. Plaintiff argues that this reading
requirement creates an “apparent conflict” with the ALJ’s RFC which restricted Plaintiff to
simple verbal instructions. The Commissioner, on the other hand, contends that a reading
requirement is not the same as the verbal instruction limitation found in the RFC. As explained
below, the Court concludes that, on the present record, the reading requirement does not create
the type of conflict at issue in Moore.
In Moore, the claimant’s RFC limited him to only occasional overhead reaching
bilaterally. See Moore, 769 F.3d at 989. The VE testified that such a claimant could perform
janitorial or cafeteria attendant work. Id. The ALJ queried the VE if her testimony was
consistent with the DOT, and the VE affirmed that it was consistent. Id. “However, the
14

Plaintiff provided exhibits purporting to reflect the requirements of the DOT and SCO for the
job listings the VE provided – 311.677-010 (cafeteria attendant) and 323.687-014 (cleaner,
housekeeping). (ECF Nos. 24-1 and 24-2) In her response to Plaintiff’s arguments, the
Commissioner does not dispute the veracity or accuracy of Plaintiff’s exhibits. Accordingly, the
Court relies on the exhibits in considering this matter. For convenience, the Court will refer to
each of these exhibits as “DOT No. __________.”

31

Selected Characteristics of Occupations (SCO), a companion volume to the DOT, lists both of
these jobs as requiring reaching ‘[f]requently,’ meaning that it ‘[e]xists from 1/3 to 2/3 of the
time.’” Id. (citing DOT # 311.677.010; DOT # 323.687-014). The Eighth Circuit found that
there was an “ʻapparent unresolved conflict’ between the VE testimony and the DOT,” and the
ALJ failed to elicit a sufficient explanation to resolve that conflict. Id. at 989-90 (citing SSR 004p, 2000 WL 1898704, at *204 (Dec. 4, 2000)). It was not sufficient in Moore to simply ask the
VE if her testimony was consistent with the DOT. Id. at 990. As a result, the matter was
remanded because “the Commissioner failed to meet her burden … [at] step five.” Id.
The issue before this Court, therefore, is whether a general reading requirement in the
DOT is sufficient to create an apparent, unresolved conflict with an RFC that limits Plaintiff to
simple, oral instructions. The Court concludes that, in this case, the general reading requirement
does not create an apparent unresolved conflict in this case. As explained below, however, the
Court concludes that there is an “apparent conflict” between Plaintiff’s RFC and other
requirements for a cafeteria attendant, as outlined in DOT No. 311.677-010 (ECF Doc. 24-1), but
no “apparent conflict” regarding the requirements for light janitorial, as outlined in DOT No.
323.687-014. Therefore, the present case is distinguishable from Moore and, therefore, the case
need not be remanded because any error is harmless.
1.

Cafeteria Attendant

Although not raised directly by Plaintiff, the required reasoning skills for a cafeteria
attendant include the ability to “[a]pply common sense understanding, to carry out detailed but
uninvolved written oral (sic) instructions.” DOT No. 311.677-010 (ECF No. 24-1 at 5). This
requirement is in direct conflict with the ALJ’s RFC assessment, upon which the VE relied, that
limited Plaintiff to “simple verbal instructions.” This DOT requirement would require Plaintiff

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to handle detailed instructions, possibly in written form. This is the sort of apparent conflict at
issue in Moore that required remand. Accordingly, absent further development of the record,
substantial evidence would not support the ALJ’s reliance on VE testimony that Plaintiff could
perform work as a cafeteria attendant.
2.

Light Janitorial

Unlike the cafeteria attendant job, the light janitorial job identified by the VE does not
include any written instruction requirement. See DOT No. 323.687-014 (Cleaner,
Housekeeping) (ECF No. 24-2). The required reasoning skills for the light janitorial job require
only the ability to “[a]pply common sense understanding, to carry out simple one-or two-step
instructions.” Id. (ECF No. 24-2 at 3).
As Plaintiff correctly points out, the DOT includes a basic language skills requirement of
the ability to read 95-102 words per minute. Id. (ECF No. 24-2 at 4). This reading requirement,
however, does not present the same type of apparent conflict that was at issue in Moore. In
Moore, the apparent conflict directly corresponded to a specific RFC limitation, namely
reaching. The same is true for Kemp v. Colvin, 743 F.3d 630, 632-33 (8th Cir. 2014), upon
which Moore relies for its apparent conflict analysis. 15 In the present case, the alleged conflict
does not directly correspond to a specific RFC limitation. Stated differently, Moore and Kemp
involved apparent actual conflicts between the RFC given to the VE and the DOT requirements
relied upon. The present case, however, involves an apparent possible conflict at best. There
was nothing obvious and even Plaintiff’s counsel did not question the VE at all. A contrary

15

Like Moore, the claimant in Kemp had a reach limitation (occasional overhead reaching only)
but the VE opined that the claimant could perform work which the DOT required constant
reaching. See Kemp, 743 F.3d at 632-33.

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conclusion would be largely unworkable at the administrative level. 16 Furthermore, a contrary
conclusion would also tend to undermine the deferential standard of judicial review by
permitting disappointed claimants to scan the DOT/SCO for any possible conflict, however
small, and thereby short circuit the substantial deference normally accorded to the
Commissioner’s disability determinations.
This conclusion is buttressed by a further review of the DOT entry in question. The DOT
entry for the cleaner/housekeeping job lists “Not Present” for each vision requirement (near
acuity, far acuity, depth perception, accommodation, color vision, and field of vision). Id. (ECF
No. 24-2 at 6). Thus, the light janitorial job identified by the VE does not impose vision
requirements inconsistent with the ALJ’s RFC determination.
Furthermore, substantial evidence in the record strongly supports a conclusion that
Plaintiff can read at least at a basic level. In her own disability report, Plaintiff admitted she
could read and understand English. (Tr. 170) Similarly, Plaintiff’s daughter stated that Plaintiff
watches television and movies every day. (Tr. 199) Plaintiff has a college education and past
work as a nurse. The record showed that Plaintiff was able to conduct independent research into
fairly complicated medical conditions, such as pancreatitis and pancreatic cancer. (Tr. 324)
Although Plaintiff claimed it took her a significant time to read information from her lawyer, the
ALJ did not credit Plaintiff on this issue, and substantial evidence supports the ALJ’s decision in
this regard. (Tr. 52)
16

In this regard, the Court notes the Seventh Circuit has interpreted the meaning of apparent
conflict somewhat literally. In Overman v. Astrue, the Seventh Circuit explained that claimant’s
counsel’s failure to identify the relevant conflicts between the VE’s testimony and the DOT, at
the time of the hearing, “is not without consequence. [Claimant] now has to argue that the
conflicts were obvious enough that the ALJ should have picked up on them without any
assistance, for SSR 00-4p requires only that the ALJ investigate and resolve apparent conflicts
….” Because Moore and Kemp both arguably involved obvious conflicts, even under the
Seventh Circuit’s analysis, the matters would have required remand.

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Important to the present analysis is the fact that the ALJ found Plaintiff’s vision issues to
be non-severe and substantial evidence supports that conclusion. As recounted above, the
treatment notes from Drs. Couch and Buchanan indicate that Plaintiff’s double vision was
infrequent, of limited duration, and had been improving over time. (Tr. 224, 347) Further, Dr.
Jung reported that Plaintiff’s Graves’ Disease had been adequately treated and controlled. (Tr.
298)
The Court concludes that, on this record, the inclusion of a basic reading requirement in
the DOT for light janitorial work, does not create an unresolved conflict (apparent or otherwise)
with an RFC determination that limits Plaintiff to simple verbal instructions.
The Court is mindful of the deferential standard of review applicable to this case. Where
the evidence allows for “inconsistent conclusions” to be drawn, “the decision will be affirmed
where the evidence as a whole supports either outcome.” Baldwin v. Barnhart, 349 F.3d 549,
555 (8th Cir. 2003). This Court may not disturb the ALJ’s decision unless it fell outside the
available “zone of choice” defined by the evidence of record. Buckner, 646 F.3d at 556. Here,
when viewed as a whole, the record supports the ALJ’s conclusion that Plaintiff could perform
light janitorial work. The ALJ properly discounted Plaintiff’s subjective complaint that she
could not read. Therefore, there was no apparent conflict between the VE’s testimony and the
DOT requirements for light janitorial work.
3.

Harmless Error

For the foregoing reasons, the Court concludes that the ALJ erred to the extent she relied
upon the VE’s testimony that Plaintiff could work as a cafeteria attendant because that job
requires her to be able to carry out detailed, rather than simple, instructions, and possibly in
written form. This error, however, is harmless because the ALJ did not err in relying on the

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VE’s testimony that Plaintiff could work in the light janitorial field, as described in DOT No.
323.687-014. See Byes, 687 F.3d at 917-18.
VIII.

Conclusion
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 is AFFIRMED.
A separate Judgment shall accompany this Memorandum and Order.

/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE
Dated this 12th

day of August, 2015.

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