Henderson v. Colvin
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the ALJ in this matter is AFFIRMED. A separate judgment will be entered this day.. Signed by Magistrate Judge John M. Bodenhausen on 2/27/17. (LGK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
AMANDA R. HENDERSON,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
No. 4:15 CV 1624 JMB
MEMORANDUM AND ORDER2
Amanda Rose Henderson (“Plaintiff”) appeals the final decision of the Acting
Commissioner of Social Security (“Defendant”) denying her application for supplemental
security income (“SSI”) benefits under Title XVI of the Social Security Act. See 42 U.S.C. §§
1381 et seq. Substantial evidence supports Defendant’s decision, and it is therefore
Background and Procedural History
Plaintiff applied for SSI benefits on May 13, 2013, alleging that she became disabled on
January 1, 2011, due to depression, learning disability, high blood pressure, anxiety, and sleep
problems. (Tr. 94, 160, 202) Plaintiff’s application was initially denied on January 27, 2013.
(Tr. 94) Plaintiff requested a hearing before an administrative law judge (“ALJ”), and the ALJ
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to
Fed. R. Civ. P. 25(d), Nancy A. Berryhill is substituted for Carolyn W. Colvin as the defendant
in this suit. No further action needs to be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act.
This matter is pending before the undersigned United States Magistrate Judge with the
consent of the parties, pursuant to 28 U.S.C. § 636(c). The Court has reviewed the entire
administrative record in this matter, but will only discuss those portions of the record most
pertinent to the issues raised by the parties.
held a hearing on May 28, 2014, at which Plaintiff testified, with counsel present. In a decision
dated June 27, 2014, the ALJ found that Plaintiff was not disabled under the Act. (Tr. 19-32)
Plaintiff appealed the ALJ’s decision, but the Appeals Council declined review. (Tr. 1) The
ALJ’s decision therefore stands as the Commissioner’s final decision, and the matter is properly
before this Court. See 42 U.S.C. § 405(g).
Evidence Before the ALJ
The ALJ conducted one hearing in this matter. On May 28, 2014, Plaintiff appeared in
person with her attorney. At the beginning of the hearing, Plaintiff’s counsel advised that
Plaintiff had no objections regarding any of the exhibits in the record. At the end of the hearing,
counsel advised that the record need not remain open.
Plaintiff’s Testimony (Tr. 40-64)
Plaintiff testified in response to questions posed by the ALJ and her attorney. Plaintiff
testified that she became disabled by January 1, 2011, when she became “very depressed.” (Tr.
42) Plaintiff named a number of doctors who had treated her in the past for mental health
concerns, and stated that she had been seeing her current doctor, Dr. Manikant Desai, M.D., for a
“couple months.” (Tr. 45) Plaintiff indicated that her next appointment with Dr. Desai was
scheduled for later that day. (Tr. 56) At the time of the hearing, Plaintiff was prescribed various
medications, including Cymbalta, Buspar, Topamax, and Abilify. (Tr. 45)
Plaintiff testified that she had been homeless in both Kansas City and St. Louis, Missouri,
but had since received a “shelter plus care voucher” that allowed her to live alone in an
apartment. (Tr. 44-46) Plaintiff informed the ALJ that she prepares her own meals, does her
own shopping and laundry, and has no difficulty taking care of personal needs. (Tr. 47, 49, 51)
Plaintiff claimed that she sleeps all but two or three hours out of the day due to depression and
because she has “nothing else to do.” (Tr. 48) Plaintiff explained that she wakes up frequently
during the night, but “once the daylight hits [she] can sleep all day.” (Tr. 62) Plaintiff also
testified that she would miss appointments without the assistance of her caseworker. Plaintiff
reported that she was let go from her last job as a certified nursing assistant because she did not
want to get out of bed to attend work. (Tr. 53) Plaintiff also testified regarding the abuse she
had suffered in her past. (Tr. 63-64)
Medical Expert Testimony (Tr. 64-78)
Dr. Michael Cremerius, Ph.D., a licensed psychologist, testified at the administrative
hearing. Dr. Cremerius considered Plaintiff’s medical records and hearing testimony. Dr.
Cremerius opined that Plaintiff suffered from: (1) borderline intellectual functioning (learning
disability); (2) depression; (3) post-traumatic stress disorder (“PTSD”); (4) personality disorder
with borderline features; and (5) cannabis and cocaine abuse (in remission). (Tr. 65-66) Dr.
Cremerius opined that none of Plaintiff’s mental impairments rose to the level of any psychiatric
or psychological listing. (Tr. 74)
Dr. Cremerius found that Plaintiff generally complied with her medical direction by
taking her medication and calling her providers for refills when necessary. Dr. Cremerius
testified that he thought Plaintiff had moderate difficulties in the areas of concentration,
persistence, or pace, but that Plaintiff could perform simple, routine tasks with occasional contact
with coworkers and supervisors. Dr. Cremerius further testified that, in his opinion, working
would be good for Plaintiff. (Tr. 75)
In an exchange that is at issue herein and discussed infra, the ALJ asked Dr. Cremerius
specifically about Exhibit B7-F. Exhibit B7-F contained two pages of handwritten notes by Dr.
Desai, from March and April 2014. Plaintiff’s attorney identified a reference to Ritalin
prescribed for ADHD. (Tr. 69) The ALJ asked for clarification, and Plaintiff advised that she
had taken medication for attention deficit disorder. (Tr. 70)
Plaintiff’s attorney also noted that Exhibit B7-F included a typed portion indicating a
diagnosis of “schizoaffective disorder chronic.” (Tr. 68) The ALJ later asked Dr. Cremerius to
clarify whether a schizoaffective diagnosis represented a substantial change in Plaintiff’s history.
Dr. Cremerius explained that it did not. Dr. Cremerius explained that another provider had
diagnosed plaintiff as bipolar, and bipolar, schizoaffective, and depression are all mood
disorders. (Tr. 73) Dr. Cremerius also explained that the schizoaffective diagnosis likely
stemmed from Plaintiff’s reporting hearing a soft talk or voice in the past. (Tr. 73)3
Dr. Cremerius testified specifically regarding the severity of Plaintiff’s mental
impairments. (Tr. 74-75) Dr. Cremerius found that Plaintiff had only mild limitations in her
activities of daily living, but moderate limitations in social functioning, and concentration,
persistence or pace. Plaintiff’s counsel specifically asked Dr. Cremerius to discuss any
distinctions between moderate and marked limitations. In response, Dr. Cremerius noted that,
apart from transportation problems, Plaintiff was organized and able to follow through, and that
working would benefit Plaintiff. (Tr. 75, 77) Dr. Cremerius further explained that “the
symptoms described across three treating sources would certainly support [Plaintiff] being able
to do more routine tasks in settings that required … occasional contact with coworkers and
supervisors.” (Tr. 75) Furthermore, he found that Plaintiff’s symptoms were “relatively well
managed, and certainly to the point that she could [do] simple routine tasks.” (Tr. 77) Dr.
Dr. Cremerius further explained that “schizoaffective wouldn’t be completely
inconsistent with the evidence…. [I]s it a recurring depressive disorder and a personality
disorder or is it a mood disorder, depression or schizoaffective or bipolar II and a personality
disorder? It’s a toss up.” (Tr. 73-74)
Cremerius explained that, in his view, Plaintiff’s treatment was relatively infrequent, and “if
somebody is that markedly impaired, they’d be seen a whole lot more frequently.” (Tr. 76)
Vocational Expert (Tr. 80-85)
Vocational expert (“VE”) James Israel testified in response to hypothetical questions
posed by the ALJ and Plaintiff’s counsel. The ALJ asked the VE to consider a hypothetical
person of Plaintiff’s age, education and work experience, who has no exertional limitations, but
who should avoid working in environments with concentrated fumes, odors, dusts and gases,
high heat and humidity. The hypothetical person could only perform “simple routine work that
[would not] require teamwork type interaction with coworkers; generally limited interaction with
supervisors … minimal communication needed [for] simple routine work,” and no close
interaction with the public. (Tr. 80-81)
The VE testified that such hypothetical person could perform several jobs available in the
economy, including: (1) door assembler; (2) wrapper; and (3) food sorter. (Tr. 81-82) In
response to further limitations posed by the ALJ and Plaintiff’s counsel, the VE testified that if
the hypothetical person missed work at least twice a month, employers would soon “deem this
person unreliable and would move to replace them.” (Tr. 82-83) Further, if the hypothetical
person arrived late, left early, stepped away from work for additional break time unpredictably
(but at least once per week), or took a daily break to cry openly, such an individual would be
precluded from employment. (Tr. 83, 84)
The VE testified that if the hypothetical person was off task 15 percent of the day, the
number of viable job options would drop by 50 percent. If the hypothetical person was off track
more than 15 percent of the day the VE testified that “jobs drop off precipitously.” (Tr. 83-84)
At the close of the hearing, the ALJ noted that the ALJ might send Plaintiff to see a
doctor, but that it was unlikely. Plaintiff’s attorney did not raise any concerns regarding the
completeness of the record, request any additional examination, or to seek expand or clarify the
record. (Tr. 85-86)
Plaintiff’s Work History and Function Reports (Tr. 210-228)
Although minimal, Plaintiff’s past work included hardware store employee, cook,
dishwasher, waitress, cashier, and certified nursing assistant. (Tr. 221) Plaintiff’s function
report indicates that she prepares meals for herself, does her own laundry and dishes, and drives.4
(Tr. 212-13) As to her limitations, Plaintiff stated that she needs reminders to take her
medications and to perform household chores. (Tr. 212) Plaintiff stated that she does not go out
in public because she does not like “being around a bunch of people.” (Tr. 213) Plaintiff also
alleged that her impairments affect her ability to talk, see, complete tasks, concentrate, and
understand. (Tr. 215) Plaintiff did not allege difficulties getting along with others, with
memory, or with following instructions. (Id.) Finally, Plaintiff indicated that she can pay
attention “for about 20 [minutes],” and that she can sometimes follow written instructions very
well. She indicated that she follows spoken instructions better than written instructions. (Id.)
Other Record Evidence
The record before this Court does not include medical records from the time of Plaintiff’s
alleged onset date of January 1, 2011, through October of 2012. In October of 2012, Plaintiff
began treatment at Truman Behavioral Health. Treatment notes from October 10, 2012, indicate
that Plaintiff had been off her anti-depressant medication for a year prior to her initial visit. (Tr.
Other evidence indicates that Plaintiff does not have a car and depends on others means
259) The notes also indicate that Plaintiff had intact attention, concentration and memory, and
that her thought form was logical and linear. (Tr. 260) Plaintiff received diagnoses of
depressive disorder and PTSD, and a Global Assessment of Functioning (“GAF”) score of 5255.5 (Tr. 261-62) Notes from follow-up treatment on December 5, 2012, are substantially
similar. (Tr. 271)
In April and May 2013, Plaintiff’s mental health treatment transitioned to ReDiscover
Mental Health. The relevant records indicate Plaintiff received treatment for PTSD and
depression. (Tr. 355-91) During this time, Plaintiff was staying in a shelter for domestic
violence victims. Treatment notes from ReDiscover reflect an additional diagnosis of borderline
intellectual functioning. (Tr. 355) The notes identified Plaintiff’s “strengths and abilities” as a
client included her “ability to form and maintain relationships,” her “ability to manage activities
[of] daily living,” and her “cheerful” attitude. (Tr. 367) Barriers to treatment included financial
challenges and unstable living conditions. (Id.)
The ReDiscover records include an unsigned mental status exam, dated April 11, 2013.
(Tr. 369-71) The mental status exam reported that Plaintiff had no “organic behavioral
symptoms observed by others or reported by [Plaintiff];” she was alert, awake, fully aware, and
responsive during the exam; fully oriented, with appropriate affect; she had intact memory; an
average fund of knowledge; and good insight and intact judgment. (Tr. 369-71)
The ReDiscover records indicate that, on May 14, 2013, Plaintiff advised that “she would
not be back for future appointments.” (Tr. 387) ReDiscover closed their chart on Plaintiff at her
A GAF score of between 51-60 indicates “moderate symptoms (e.g. flat affect and
circumstantial speech, occasional panic attack) OR moderate difficulty in social, occupational, or
school functioning (e.g. few friends, conflicts with peers or co-workers).” Diagnostic and
Statistical Manual of Mental Disorders, DSM-IV, 35 (4th ed.) (“DSM-IV”).
The administrative record also indicates that, between May 2013 and November 2013,
Plaintiff sought treatment for various physical complaints such as asthma, allergic rhinitis,
obesity, and back-pain/lumbago. In November of 2013, Plaintiff sought treatment at BJC
Behavioral Health (“BJC”) and reported that she had not taken her psychiatric medications since
April of 2013. (Tr. 461) On November 13, 2013, Plaintiff saw Dr. Rachel Morel, D.O., at BJC.
Dr. Morel conducted a psychiatric evaluation. Dr. Morel diagnosed Plaintiff with depression and
PTSD and prescribed medication to address her symptoms. Dr. Morel found Plaintiff’s thought
process to be goal directed and logical, her language and memory intact, and her attention span
normal. Dr. Morel opined that “Patient is alert and oriented … with average intellect.” (Tr. 46162) Dr. Morel assigned a GAF score of 456 at this visit, and again on a follow-up visit on
December 12, 2013. (Tr. 462, 464) December 2013 records regarding Plaintiff’s treatment for
back pain, asthma, and obesity noted that Plaintiff showed “no unusual anxiety or evidence of
depression.” (Tr. 557)
In 2014, after Dr. Morel left BJC, Plaintiff commenced treatment with Dr. Muhammad
Baber, M.D. Dr. Baber’s treatment notes indicate that Plaintiff had received medication refills
over the prior few months but had not made any appointments since December of 2013. Dr.
Baber described Plaintiff as having fair concentration and memory, and estimated her intellect to
be in the average range. (Tr. 466-67) Dr. Baber assigned Plaintiff a GAF score of 50. (Tr. 467)
On April 21, 2014, Plaintiff received treatment from Dr. Manikant Desai, M.D., at BJC.
Dr. Desai’s treatment notes indicate a diagnosis of schizoaffective disorder and a change in
Plaintiff’s medication from Seroquel to Abilify. (Tr. 475) Dr. Desai’s notes also indicate that
A GAF score of 41-50 indicates “[s]erious symptoms (e.g. suicidal ideation, severe
obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or
school functioning (e.g. no friends, unable to keep a job).” DSM-IV.
Plaintiff tolerated her medications “well” and reported “no side effects”. (Id.) As noted in the
transcript of the administrative hearing, some of Dr. Desai’s notes are illegible.
Medical Opinion Evidence
The only medical opinion evidence comes from a state agency decision-maker named
Ioan Dacila. Ioan Dacila does not qualify as an acceptable medical source under the relevant
social security rules. As such, the ALJ reviewed this opinion as a “non-acceptable medical
source report.” (Tr. 29) Dacila reported that Plaintiff had moderate physical limitations, and
indicated moderate environmental limitations, including avoiding concentrated exposure to cold
or heat, and avoiding fumes, odors, dusts, gases, poor ventilation, and hazardous machinery or
heights. (Tr. 101-02)
No treating source opined that Plaintiff qualifies as physically disabled, or submitted any
opinion evidence describing additional physical limitations. No sources, including treating
sources, submitted opinion evidence regarding Plaintiff’s mental impairments except
psychologist Michael Stacy, Ph.D., and testifying expert Dr. Cremerius. Dr. Stacy noted
moderate limitations in Plaintiff’s mental functioning, but ultimately concluded that Plaintiff
“retains the ability to understand and remember simple instructions;” can “carry out simple work
instructions” while maintaining “adequate attendance and sustain an ordinary routine without
special supervision;” and “can interact adequately with peers and supervisors in a normal work
setting.” Finally, Dr. Stacy found that Plaintiff “can adapt to most changes common to a
competitive work setting.” (Tr. 103-04)
In addition, Dr. Cremerius made several findings after reviewing the medical evidence
and listening to Plaintiff’s hearing testimony. Dr. Cremerius discussed his opinions at the
hearing, subject to questioning and clarification by Plaintiff’s attorney.
Plaintiff’s school records reference multiple diagnoses, including learning disabilities,
and difficulty with listening comprehension, vocabulary development, and verbal expression.
The records also document fine and gross motor skill delays. (Tr. 395) Plaintiff received special
education services from August 1992 through at least 2004. (Tr. 393, 415)
An individualized education plan (“IEP”) from 2003-04 noted that Plaintiff was deficient
in the areas of basic reading, written expression, mathematics, and listening comprehension. For
instance, in the 12th grade, Plaintiff read at a 4th grade level. (Tr. 417) The school district also
gave Plaintiff a Wechsler Adult Intelligence Scale III test, which resulted in a Verbal IQ of 76, a
Performance IQ of 70, and a Full Scale IQ of 71. (Id.) The IEP also identified that Plaintiff had
“difficulty” remembering orally presented information, but “she performs better” when the
information is repeated. (Id.)
On June 27, 2014, the ALJ issued a detailed, written decision finding Plaintiff not
disabled. The ALJ’s decision adhered to the five-step process required by the Commissioner’s
regulations. 20 C.F.R. § 404.1520(a).
At steps one through three, the ALJ found that: (1) Plaintiff had not been gainfully
employed since her alleged disability onset date; (2) Plaintiff had the severe impairments of
asthma, learning disabilities, borderline intellectual functioning, major depressive disorder,
PTSD, bipolar disorder, and personality disorder;7 and (3) none of Plaintiff’s impairments, either
The ALJ found Plaintiff’s other alleged impairments (e.g., high blood pressure, back
pain, rhinitis, cellulitis, and others) to be non-severe. The ALJ also considered and took into
account Plaintiff’s obesity and prior substance abuse, but found that neither of these problems
reduced Plaintiff’s overall functional abilities. (Tr. 21-22) Plaintiff does not challenge herein
the ALJ’s treatment of her non-severe impairments.
singly or in combination, met or medically equaled the severity of one of the listed impairments
found at 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 21-22)
In assessing Plaintiff’s mental impairments, the ALJ applied the special technique found
in 20 C.F.R. § 416.920a. Relying on the testimony of Dr. Cremerius and Plaintiff’s own reports,
the ALJ concluded that Plaintiff had mild restrictions in her activities of daily living, and
moderate restrictions in terms of social functioning and concentration, persistence, or pace.8 (Tr.
As part of step four, the ALJ assessed Plaintiff’s Residual Functional Capacity (“RFC”).
The ALJ described Plaintiff’s RFC as follows:
[Plaintiff] has the [RFC] to perform a full range of work at all exertional levels
but should avoid working in areas of concentrated noxious fumes, odors, dusts,
gases, high humidity, and high heat; limited to simple, routine work that does not
require teamwork such as interaction with coworkers; limited interaction with
supervisors to [the] extent needed to conduct simple and routine type work; no
close interaction with the public.
In determining Plaintiff’s RFC, the record indicates that the ALJ considered the
medical evidence in the record, evaluated Plaintiff’s credibility, and weighed the relevant
Regarding opinion evidence, the ALJ gave significant weight to the opinions of
state agency psychologist Dr. Stacy, and great weight to the findings and opinions of
medical expert Dr. Cremerius. (Tr. 29) Although there were no specific opinions from
any of Plaintiff’s treating sources, the ALJ also considered the low GAF scores assigned
A third party function report completed by Plaintiff’s mother identified limitations
concerning Plaintiff’s ability to pay attention, noting that Plaintiff “gets distracted easily” and
can only pay attention “15 to 30 minutes then gets sidetracked.” (Tr. 234) The ALJ found that
such representations, like the Plaintiff’s own representations, were “inconsistent with the
preponderance of the opinions and observations by qualified medical personnel.” As such, these
statements were not proof of disability. (Tr. 29)
by some of those sources. The ALJ agreed that Plaintiff’s mental difficulties caused
moderate difficulties with social and occupational functioning. The ALJ gave little
weight to the GAF scores because GAF scores reflect only a “snapshot” in time, they are
highly subjective, and they have been eliminated from use in the most recent version of
the Diagnostic and Statistical Manual of Mental Disorders (“DSM”). (Tr. 29-30)
The ALJ also found Plaintiff’s allegations “not entirely credible.” (Tr. 25) The
ALJ based this finding on several factors, including Plaintiff’s history of “repeatedly
fil[ing] applications for supplemental security income benefits;” her work history; an
apparent “motivat[ion] for seeking disability benefits;” and medical evidence which did
not support the level of disability claimed. (Tr. 26) The ALJ’s adverse credibility
findings are not specifically challenged herein.
After determining Plaintiff’s RFC, and having concluded that Plaintiff had no past
relevant work, the ALJ proceeded to step five of the sequential process. At step five,
based the VE’s hearing testimony and Plaintiff’s RFC, the ALJ concluded that Plaintiff
could perform jobs that exist in significant numbers in the national economy. Therefore,
the ALJ found that Plaintiff was not disabled.
Issues Before the Court
Plaintiff makes two, well-crafted and focused arguments in support of her contention that
the ALJ’s decision lacks substantial support in the record as a whole. First, Plaintiff argues that
the RFC failed to account for Plaintiff’s moderate difficulties in the area of concentration,
persistence, or pace. (ECF No. 13 at 9) Second, Plaintiff argues that the ALJ erred by not
contacting Dr. Desai to decipher his purportedly illegible medical records, and thus failed to
provide Dr. Cremerius with all relevant records prior to his testimony. (ECF No. 13 at 13)9
Standard of Review
“To be eligible for [disability] 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). 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 claimant qualifies as disabled “only if [her] physical or mental
impairments are of such severity that [s]he is not only unable to do [her] previous work but
cannot, considering her 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, the ALJ follows a five-step process in
determining whether a claimant is disabled. “During the process the ALJ must determine: ‘1)
whether the claimant is currently employed; 2) whether the claimant is severely impaired; 3)
Defendant’s brief addresses several matters that were not directly raised in Plaintiff’s
brief, including the ALJ’s adverse credibility finding and the determination of Plaintiff’s severe
and non-severe impairments. In reviewing the broad question of whether substantial evidence in
the record as a whole supports the Commissioner’s decision, the Court has considered the
entirety of the ALJ’s decision. The Court finds no error regarding the matters that were not
raised in Plaintiff’s brief. For example, the undersigned finds that the ALJ gave good reasons for
the adverse credibility determination, and that substantial evidence supports the ALJ’s
conclusions in this regard. See Julin v. Colvin, 826 F.3d 1082, 1086 (8th Cir. 2016) (explaining
that “[c]redibility determinations are the province of the ALJ” and the deference owed to such
determinations); 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”).
whether the impairment is, or is comparable to, a listed impairment; 4) whether the claimant can
perform past relevant work; and if not 5) whether the claimant can perform any other kind of
work.’” Andrews v. Colvin, 791 F.3d 923, 928 (8th Cir. 2015) (quoting Hacker v. Barnhart, 459
F.3d 934, 936 (8th Cir. 2006)). “If, at any point in the five-step process the claimant fails to
meet the criteria, the claimant is determined not to be disabled and the process ends.” Id. (citing
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005)); see also Martise v. Astrue, 641 F.3d 909,
921 (8th Cir. 2011).
The Eight 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).
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. The credibility findings made by the ALJ;
2. Plaintiff’s vocational factors;
3. The medical evidence from treating and consulting physicians;
4. Plaintiff’s subjective complaints relating to exertional and non-exertional activities and
5. Any corroboration by third parties of Plaintiff’s impairments;
6. The testimony of vocational experts when required, including any hypothetical questions
setting forth Plaintiff’s impairments.
Stewart v. Sec’y of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992).
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 outsize that zone simply because this Court might
have reached a different conclusion had it been the original finder of fact. 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.”).
Analysis of Issues Raised for Review
RFC & Concentration, Persistence, or Pace
Plaintiff first argues that limiting Plaintiff to simple, routine work, with only limited
interaction with supervisors, co-workers, and the public, does not sufficiently account for her
moderate limitations in concentration, persistence, or pace. (ECF No. 13 at 9-13) Plaintiff
correctly notes the general principle that an RFC must include and account for all of a claimant’s
impairments. See Newton v. Chater, 92 F.3d 688, 694-95 (8th Cir. 1996). Plaintiff’s specific
argument rests largely, although not exclusively, on Seventh Circuit case law holding that an
RFC that limits a claimant to “simple, repetitive work does not necessarily address deficiencies
of concentration, persistence, and pace.” O’Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th
Cir. 2010) (emphasis supplied). Defendant responds that Eighth Circuit case law does not
support Plaintiff’s contention. See Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001);
Brachtel v. Apfel, 132 F.3d 417, 421 (8th Cir. 1997).
A claimant’s RFC is the most that claimant can do despite her limitations. See 20 C.F.R.
§ 404.1545(a)(1); Hensley v. Colvin, 829 F.3d 926, 931 (8th Cir. 2016). In determining a
claimant’s RFC, an 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); see also Hensley, 829 F.3d at 931-32 (citation omitted). While the RFC
determination occurs at step four, where the claimant has the burden of proof, the Eighth Circuit
has explained that the ALJ has primary responsibility for determining the RFC. See Hensley,
829 F.3d at 932; Krogmeier, 294 F.3d at 1024. “Because a claimant’s RFC is a medical
question, an ALJ’s assessment of it must be supported by some medical evidence of the
claimant’s ability to function in the workplace.” Hensley, 829 F.3d at 932.
There is no dispute that Plaintiff has moderate difficulty in the area of concentration,
persistence, or pace. The issue is whether the RFC adequately addresses this difficulty. The
Court concludes that, on this record, the RFC is adequate. Plaintiff’s position, if accepted, would
push the standard of review beyond its deferential bounds. Moreover, as will be explained,
Plaintiff’s reliance on seemingly favorable case law from another circuit does not sufficiently
distinguish this case from binding Eighth Circuit precedent. Finally, as a factual matter, the
primary medical source supporting Plaintiff’s moderate limitation in concentration, persistence,
or pace is Dr. Cremerius. (Tr. 23) After considering the totality of Plaintiff’s mental
impairments, Dr. Cremerius testified that Plaintiff can and should return to work.
As defined in the Commissioner’s regulations –
Concentration, persistence, or pace refers to the ability to sustain focused
attention and concentration sufficiently long to permit the timely and appropriate
completion of tasks commonly found in work settings … strengths and
weaknesses in areas of concentration and attention can be discussed in terms of [a
plaintiff’s] ability to work at a consistent pace for acceptable periods of time and
until a tasks is completed, and [a plaintiff’s] ability to repeat sequences of action
to achieve a goal or an objective.
20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00(C)(3). When rating the degree of limitation
in concentration, persistence, or pace, the ALJ uses a five-level scale: none, mild, moderate,
marked, and extreme. See 20 C.F.R. § 416.920a(c)(4). In this case, there is no dispute that
Plaintiff’s degree of limitation is “moderate.”10
The bedrock of Plaintiff’s argument herein is that an RFC limitation to simple and routine
work does not account for moderate limitations in concentration, persistence, or pace. In her
opening brief, Plaintiff relies almost exclusively the Seventh Circuit’s decision in O’ConnorSpinner.11 The law in this Circuit, however, is not as restrictive as Plaintiff contends the law to
be in the Seventh Circuit, and the undersigned is bound by the law of the Eighth Circuit. See
The ALJ first considered Plaintiff’s difficulty in the area of concentration, persistence,
or pace at steps 2 and 3, not step 4. (Tr. 21-22) In fact, the ALJ correctly explained that his
analysis in this regard was not intended to reflect an RFC assessment, but was
used to rate the severity of mental impairments at steps 2 and 3 of the sequential
evaluation process. The mental residual functional capacity assessment used at
steps 4 and 5 … requires a more detailed assessment by itemizing various
functions …. Therefore, the [RFC] assessment reflects the degree of limitation
the [ALJ] has found in the … mental function analysis [of steps 2 and 3].
In her reply brief, Plaintiff cites additional authority, including cases from this District.
(ECF No. 17 at 4) See Logan-Wilson v. Colvin, 2014 WL 4681459 (E.D. Mo. Sept. 19, 2014);
Cain v. Colvin, 2015 WL 2092411 (E.D. Mo. May 2015). The Court agrees that, while these
cases are generally favorable to Plaintiff, they are distinguishable. As explained below, the ALJ
formulated the RFC on the basis of the entire record, including the expert testimony and opinions
of Drs. Cremerius and Stacy. (Tr. 29)
Hood v. United States, 342 F.3d 861, 864 (8th Cir. 2003) (reversing a district court that
“embraced the reasoning of” other circuits, instead of the Eighth Circuit, and holding that a
district court “is bound  to apply the precedent of [the Eighth Circuit]”).
In our Circuit, an RFC need not use specific diagnostic or symptomatic terms, especially
where other descriptive terms have adequately defined the plaintiff’s limitations. See Roe v.
Chater, 92 F.3d 672, 676 (8th Cir. 1996). In Howard v. Massanari, 255 F.3d 577, 582 (8th Cir.
2001) (citation omitted), the Eighth Circuit concluded that a hypothetical question which
includes the “ability to do only simple routine repetitive work, which does not require close
attention to detail” sufficiently describes deficiencies of concentration, persistence, or pace. See
also Brachtel v. Apfel, 132 F.3d 417, 421 (8th Cir. 1997) (same).
More recently, in Harvey v. Colvin, 839 F.3d 714 (8th Cir. 2016), a plaintiff applied for
disability benefits alleging disability based upon mood disorder, anxiety disorder, and the
residual effects of a brain tumor. The claimant in Harvey suffered “moderate brain atrophy,” and
suffered from a “major difficulty” of “overall slowness and slow processing,” Id. The ALJ
accounted for these limitations in the RFC by limiting the plaintiff to “only simple, routine, and
repetitive work, work that doesn’t require any close attention to detail or use of independent
judgment on the job.” Id. The Harvey court approved this hypothetical question, and cited to
Howard and Brachtel, indicating the continued vitality of those cases.12
Newton v. Chater, 92 F.3d 688 (8th Cir. 1996) does not control this case. In that case,
the ALJ found that the plaintiff “often” had deficiencies in concentration, persistence, or pace,
but the hypothetical presented to the VE merely limited the claimant to simple jobs, and did not
specifically include impairments regarding concentration, persistence, or pace. The Eighth
Circuit held that the reference to simple jobs in the hypothetical did not constitute inclusion of
such impairments. Newton, 92 F.3d at 695. In Brachtel, however, the Eighth Circuit
distinguished Newton because in Brachtel, the ALJ included the additional limitations of that the
plaintiff could not engage in work requiring “close attention to detail,” or at “more than a regular
pace,” were sufficient additional limitations to distinguish Newton. Brachtel, 132 F.3d at 421.
Apart from Plaintiff’s broad contention that, as a matter of law, the RFC in this case is
deficient, as a factual matter the RFC is well-supported. There is no dispute that the hypothetical
question posed to the VE corresponds directly with the RFC articulated by the ALJ. (Compare
Tr. 24, 81) The representative jobs the VE identified, and upon which the ALJ relied (door
assembler, wrapper, and food sorter) all require very little training. Specifically, they require a
specific vocational preparation (“SVP”) level of two. The SVP level listed for each occupation
in the DOT connotes the time needed to learn the techniques, acquire the information, and
develop the facility needed for average work performance. An SVP level of two corresponds to
unskilled work, which “‘need[s] little or no judgment to do” and includes “simple duties that can
be learned on the job in a short period of time.’” Hulsey v. Astrue, 622 F.3d 917, 922-23 (8th
Cir. 2010) (quoting 20 C.F.R. § 416.968(a)). The amount of training required to do this type of
job is “[a]nything beyond a short demonstration up to and including 1 month.” Id.
Moreover, the ALJ formulated the RFC on the basis of the entire record, including the
testimony of Dr. Cremerius and expert opinions of Dr. Stacy. Dr. Cremerius testified that, apart
from Plaintiff’s transportation difficulties, she was organized and able to follow-through, she
does reasonably well when she is on her medications, and that working would benefit plaintiff.
(Tr. 75-77) More importantly, Dr. Cremerius specifically testified that, based on “the symptoms
described across … three treating sources,” Plaintiff was capable of more routine tasks in
settings that required … occasional contact with coworkers and supervisors.” (Tr. 75) Dr. Stacy
specifically considered Plaintiff’s ability regarding sustained concentration and persistence and
noted that “[Plaintiff] can carry out simple work instructions. She can maintain adequate
Similarly, in this case, the RFC included more than just a simple work limitation. Rather, the
RFC also limited Plaintiff’s need to interact with co-workers, supervisors, the public, and further
limited Plaintiff to “routine” work. On the record before the Court in this case, as in Brachtel,
these additional limitations are “enough to distinguish this case from Newton.” Id.
attendance and sustain an ordinary routine without special supervision.” (Tr. 104) Dr. Stacy
also reported that Plaintiff retained the ability to understand and remember simple instructions.
Therefore, substantial evidence in the record as a whole supports a conclusion that
Plaintiff’s RFC, as outlined by the ALJ and provided to the VE, addresses plaintiff’s deficiencies
in concentration, persistence, or pace. On the basis of the factual record before this Court, and in
consideration of relevant Eighth Circuit case law, Plaintiff is not entitled to remand on her first
argument. See Buckner, 646 F.3d at 556; McNamara, 590 F.3d at 610.
Failure to Follow Up With Dr. Desai Regarding Illegible Medical Records
Plaintiff’s second argument also addresses an alleged flaw in the ALJ’s RFC
determination, but from a different angle. Plaintiff contends that the ALJ erred by not
contacting Dr. Desai regarding his illegible medical records, and Dr. Cremerius did not have all
relevant records prior to his testimony. (ECF No. 13 at 13) According to Plaintiff, because of
this error, Dr. Cremerius’ testimony was incomplete, the ALJ lacked sufficient information to
make an informed decision, and therefore, substantial evidence does not support the ALJ’s RFC
determination. In substance, Plaintiff argues that the ALJ failed to develop the record.
During the course of Dr. Cremerius’ hearing testimony, it became clear that he had not
received, or no longer had, some of Dr. Desai’s treatment notes. Those notes were included in
the administrative record as Exhibit B-7F. (Tr. 475-78)13 This issue was revealed when the ALJ
asked for Dr. Cremerius’ help in reading illegible portions of Dr. Desai’s handwritten treatment
notes and Dr. Cremerius could not find those notes. Dr. Cremerius appeared via the telephone,
From the hearing transcript, it is clear that the notes in question comprise four pages
(Tr. 68-71), and those four pages include both handwritten and typed notes. (Tr. 475-78)
so the ALJ attempted to fax the notes to Dr. Cremerius during the hearing, but the record
indicates that attempt was unsuccessful. (Tr. 68-70) Instead, the ALJ read the legible portions
of Dr. Desai’s treatment notes to Dr. Cremerius over the phone, and determined that faxing the
documents to him would be unnecessary since the portions of the record the ALJ did not read
over the phone were unreadable. The ALJ was careful to clarify whether there were any notable
differences between Dr. Desai’s diagnosis and the other medical records in Plaintiff’s file.14 (Tr.
There is no dispute herein that portions of Dr. Desai’s handwritten notes are hard to read
or illegible. This circumstance does not necessitate a finding of error. Although an ALJ has a
“duty to develop the record fully and fairly,” even when counsel represents Plaintiff, see
Freeman v. Apfel, 208 F.3d 687, 692 (8th Cir. 2000), an ALJ’s failure “to seek additional
clarifying statements from a treatment physician” does not require reversal “unless a crucial
issue is undeveloped.” Jones v. Astrue, 619 F.3d 963, 969 (8th Cir. 2010) (quoting Goff v.
Barnhart, 421 F.3d 785, 791 (8th Cir. 2005)).
More broadly, perhaps, an ALJ’s failure to develop the record requires reversal only
when insufficient evidence exists in the record to make a disability determination. See McCoy v.
Astrue, 648 F.3d 605, 612 (8th Cir. 2011); see also 20 C.F.R. § 416.919a(b) (noting that
insufficient or inconsistent evidence triggers situations that may require consultative
examinations). Furthermore, an ALJ may “issue a decision without obtaining additional medical
evidence so long as other evidence in the record provides a sufficient basis for the ALJ’s
As discussed above, Dr. Desai’s notes reference schizoaffective disorder. The ALJ
asked Dr. Cremerius to explain whether such a diagnosis was inconsistent with the other
evidence. Dr. Cremerius explained why it was not inconsistent. (Tr. 73-74)
decision.” Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001) (quoting Naber v. Shalala,
22 F.3d 186, 189 (8th Cir. 1994)).
Here, the ALJ did not err in failing to seek additional clarification of Dr. Desai’s
treatment. First, Plaintiff has not shown that these limited treatment notes contain sufficiently
unique information. To the contrary, Dr. Cremerius testified that the legible portions of the notes
contained information consistent with the other evidence that he reviewed and considered. (Tr.
73-74; noting that Plaintiff’s schizoaffective diagnosis is not substantially distinctive from other
diagnoses in other medical records because “[t]hey’re all under [listing]12.04 as a mood
disorder”). Plaintiff does not appear to take issue with this conclusion.
Second, after reviewing the entire record in this matter, the Court believes that the ALJ’s
RFC determination rests on sufficient evidence. The full record in this matter consists of: (1)
disability, function, and work reports (Tr. 181-244); (2) over 300 pages of medical and education
records (Tr. 259-574); and (3) a detailed hearing transcript at which Plaintiff and her lawyer
discussed and described her alleged limitations and medical history in detail. (Tr. 36-86) Once
the Court factors in the ALJ’s adverse credibility determination, nothing in Plaintiff’s testimony
is considerably at odds with Dr. Cremerius’s testimony. Furthermore, Dr. Desai’s records at
issue in this matter constitute a small fraction of the overall medical evidence in this case.
Medical opinions from Drs. Stacy and Cremerius support the ALJ’s determinations at steps two,
three, and four. Hence, an ALJ could reasonably conclude that the record was sufficiently
developed, especially considering the lack of conflicting medical opinions.
Finally, even though an ALJ has a duty to develop the record, even where counsel
represents a plaintiff, see Freeman, 208 F.3d at 692, it is relevant to note that, at the end of the
hearing, Plaintiff’s attorney advised the ALJ that there was no reason to leave the record in this
matter open. (Tr. 85)
The ALJ developed a substantial record, and analyzed Plaintiff’s claims in detail.
Substantial evidence supports the ALJ’s findings. Plaintiff is not entitled to remand based upon
For all of the foregoing reasons, the Court concludes that the ALJ’s determination that
Plaintiff is not disabled is consistent with the Commissioner’s regulations and supported by
substantial evidence on the record as a whole.
IT IS HEREBY ORDERED that the decision of the ALJ in this matter is AFFIRMED.
A separate judgment will be entered this day.
/s/ John M. Bodenhausen
UNITED STATES MAGISTRATE JUDGE
Dated this 27th day of February, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?