Dickson v. Colvin
MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and Plaintiffs Complaint is DISMISSED with prejudice. Signed by Magistrate Judge Noelle C. Collins on 03/28/2017. (KCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JAMES L. DICKSON,
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Case No. 4:16-cv-00267-NCC
MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision
of the Commissioner denying the application of James L. Dickson (“Plaintiff”) for Supplemental
Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq.
Plaintiff has filed a brief in support of the Complaint (Doc. No. 16), and Defendant has filed a
brief in support of the Answer (Doc. No. 21). The Parties have consented to the jurisdiction of
the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. No.
I. PROCEDURAL HISTORY
Plaintiff filed his application for SSI on September 7, 2012 (Tr. 78, 139-44). Plaintiff
was initially denied on November 2, 2012, and he filed a Request for Hearing before an
Administrative Law Judge (“ALJ”) (Tr. 5-9, 69-78, 81-85, 88-90). After a hearing, by decision
dated September 19, 2014, the ALJ found Plaintiff not disabled (Tr. 10-28). On December 28,
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be
taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
2015, the Appeals Council denied Plaintiff’s request for review (Tr. 1-4). As such, the ALJ’s
decision stands as the final decision of the Commissioner.
II. DECISION OF THE ALJ
The ALJ determined that Plaintiff has not engaged in substantial gainful activity since
September 7, 2012, the application date (Tr. 15). The ALJ found Plaintiff has the severe
impairment of borderline intellectual functioning but that no impairment or combination of
impairments met or medically equaled the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (Tr. 15-16). After considering the entire record, the ALJ
determined Plaintiff has the residual functional capacity (“RFC”) to perform a full range of work
at all exertional levels with the following nonexertional limitations (Tr. 18). He can only
understand, remember, and carry out simple, repetitive tasks (Id.). He can only have occasional
interaction with supervisors, co-workers, and the public (Id.). He can only make simple, workrelated decisions, and he can only tolerate occasional change in work location (Id.). The ALJ
found Plaintiff has no past relevant work, but that there are jobs that exist in significant numbers
in the national economy that he can perform, including housekeeper, dishwasher, and cleaner
(Tr. 24-25). Thus, the ALJ concluded that a finding of “not disabled” was appropriate (Tr. 25).
Plaintiff appeals, arguing a lack of substantial evidence to support the Commissioner’s decision.
III. LEGAL STANDARD
Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “‘If a claimant fails
to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is
determined to be not disabled.’” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits.
20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20
C.F.R. §§ 416.920(c), 404.1520(c). The Social Security Act defines “severe impairment” as
“any impairment or combination of impairments which significantly limits [claimant’s] physical
or mental ability to do basic work activities. . . .” Id. “‘The sequential evaluation process may
be terminated at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.’” Page v. Astrue, 484
F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir.
2001), citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment which meets or
equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d).
If the claimant has one of, or the medical equivalent of, these impairments, then the claimant is
per se disabled without consideration of the claimant’s age, education, or work history. Id.
Fourth, the impairment must prevent the claimant from doing past relevant work. 20
C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at this fourth step to
establish his or her RFC. Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step
four of this analysis, the claimant has the burden of showing that she is disabled.”). The ALJ
will review a claimant’s RFC and the physical and mental demands of the work the claimant has
done in the past. 20 C.F.R. § 404.1520(f).
Fifth, the severe impairment must prevent the claimant from doing any other work. 20
C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential analysis, the
Commissioner has the burden of production to show evidence of other jobs in the national
economy that can be performed by a person with the claimant’s RFC. Steed, 524 F.3d at 874
n.3. If the claimant meets these standards, the ALJ will find the claimant to be disabled. “The
ultimate burden of persuasion to prove disability, however, remains with the claimant.” Young v.
Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). See also Harris v. Barnhart, 356 F.3d 926, 931
n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377
F.3d 801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to demonstrate
RFC remains on the claimant, even when the burden of production shifts to the Commissioner at
step five.”). Even if a court finds that there is a preponderance of the evidence against the ALJ’s
decision, the decision must be affirmed if it is supported by substantial evidence. Clark v.
Heckler, 733 F.2d 65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but
is enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). See also Cox v.
Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
It is not the job of the district court to re-weigh the evidence or review the factual record
de novo. Cox, 495 F.3d at 617. Instead, the district court must simply determine whether the
quantity and quality of evidence is enough so that a reasonable mind might find it adequate to
support the ALJ’s conclusion. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of
the ALJ, who is the fact-finder. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004).
Thus, an administrative decision which is supported by substantial evidence is not subject to
reversal merely because substantial evidence may also support an opposite conclusion or because
the reviewing court would have decided differently. Krogmeier, 294 F.3d at 1022.
To determine whether the Commissioner’s final decision is supported by substantial
evidence, the court is required to review the administrative record as a whole and to consider:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s physical activity
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon proper hypothetical questions which
fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
In his appeal of the Commissioner’s decision, Plaintiff asserts that (1) the ALJ erred by
not discussing listing 12.05 concerning intellectual disabilities and in finding that Plaintiff did
not meet the requirements of listing 12.05B; and (2) the ALJ erred in her RFC determination by
misconstruing Plaintiff’s past work, by giving little weight to Plaintiff’s treating/examining
psychologist’s RFC assessment, by not considering every medical opinion of evidence in
violation of 20 C.F.R. 416.927(c), by basing the RFC on the opinions of non-treating, nonexamining physicians alone, and by failing to consider Plaintiff’s ability to sustain ongoing
concentration and persistence (Doc. No. 16 at 4, 5). For the following reasons, the Court finds
that Plaintiff’s argument is without merit, and that the ALJ’s decision is based on substantial
evidence and is consistent with the Regulations and case law.
A. LISTING 12.05
Plaintiff first asserts that the ALJ erred by not specifically discussing listing 12.05
concerning intellectual disabilities and by finding that Plaintiff did not meet the requirements of
listing 12.05B (Doc. No. 16 at 4). At step three, the ALJ found Plaintiff did not meet or
medically equal the criteria of listing 12.02 (Tr. 16). Although the ALJ did not address listing
12.05,“[t]he ALJ’s failure to identify and analyze the appropriate listing, although error, may not
by itself require reversal so long as the record otherwise supports the ALJ’s overall conclusion.”
See Brown v. Colvin, 825 F.3d 936, 940 (8th Cir. 2016). “The claimant has the burden of
proving that his impairment meets or equals a listing.” Carlson v. Astrue, 604 F.3d 589, 593 (8th
Cir. 2010). “For a claimant to show that his impairment matches a listing, it must meet all of the
specified medical criteria.” Jones v. Astrue, 619 F.3d 963, 969 (8th Cir. 2010) (internal
quotations and citations omitted). A claimant is disabled pursuant to section 12.05B when he has
(1) an intellectual disability characterized by significantly subaverage general intellectual
functioning with deficits in adapting functioning manifested before age 22; and (2) a “valid
verbal, performance, or full scale IQ of 59 or less.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
12.05B. At issue in this case is whether Plaintiff’s IQ scores meet the listing criteria. Social
security regulations require that IQ test results be sufficiently current to be considered “valid.”
See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.00(D)(10). IQ test results obtained between the
ages of 7 and 16 should be considered current for 4 years when the tested IQ is less than 40 and
for 2 years when the IQ is 40 or above. Id. IQ test results obtained before age 7 are current for 2
years if the tested IQ is less than 40 and 1 year if at 40 or above. Id.
Plaintiff’s valid IQ scores do not meet the listing criteria. Plaintiff underwent cognitive
testing at age 6, resulting in a verbal IQ of 60, a performance IQ of 60 and a full scale IQ or 56
(Tr. 166). Further cognitive testing at age 10 resulted in a verbal IQ of 55, a performance IQ of
75, and a full scale IQ of 62 (Tr. 227). These tests are well beyond the date to be considered an
accurate assessment of Plaintiff’s current IQ level and, therefore, not valid under the applicable
social security regulations. More recent testing from 2013 resulted in a verbal IQ of 70, a
perceptual reasoning IQ of 73, working memory IQ of 66, processing speed IQ of 74, and a full
scale IQ of 65 (Tr. 276). These scores, though considered valid, do not meet the medical criteria
of 12.05B as none of Plaintiff’s IQ scores were below 59. Accordingly, the ALJ’s failure to
address the requirements of 12.05B was harmless as Plaintiff fails to meet the listing’s
requirements and, as addressed in more detail below, the record supports the ALJ’s overall
conclusion. See Ruffin v. Colvin, No. 4:10CV1736 HEA, 2013 WL 5105378, at *3 (E.D. Mo.
Sept. 12, 2013); Tobar v. Astrue, No. 4:11 CV 1939 DDN, 2012 WL 4936111, at *6-*8 (E.D.
Mo. Oct. 17, 2012).
B. RFC DETERMINATION
Next, Plaintiff asserts that the ALJ erred in her RFC determination by misconstruing
Plaintiff’s past work, by giving little weight to Plaintiff’s treating/examining psychologist’s RFC
assessment, by not considering every medical opinion of evidence in violation of 20 C.F.R.
416.927(c), by basing the RFC on the opinions of non-treating, non-examining physicians alone,
and by failing to consider Plaintiff’s ability to sustain ongoing concentration and persistence
(Doc. No. 16 at 5).
The Regulations define RFC as “what [the claimant] can do” despite his “physical or
mental limitations.” 20 C.F.R. § 404.1545(a). “When determining whether a claimant can
engage in substantial employment, an ALJ must consider the combination of the claimant's
mental and physical impairments.” Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001). “The ALJ
must assess a claimant's RFC based on all relevant, credible evidence in the record, ‘including
the medical records, observations of treating physicians and others, and an individual's own
description of [her] limitations.’ ” Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004)
(quoting McKinney, 228 F.3d at 863). See also Myers v. Colvin, 721 F.3d 521, 526 (8th Cir.
2013). To determine a claimant's RFC, the ALJ must move, analytically, from ascertaining the
true extent of the claimant's impairments to determining the kind of work the claimant can still
do despite her impairments. Anderson v. Shalala, 51 F.3d. 777, 779 (8th Cir. 1995). “Although
it is the ALJ’s responsibility to determine the claimant’s RFC, the burden is on the claimant to
establish his or her RFC.” Buford v. Colvin, 824 F.3d 793, 796 (8th Cir. 2016) (internal citations
1. Part Time Work
First, Plaintiff asserts that the ALJ erred in her RFC determination because the ALJ
improperly relied on Plaintiff’s past work (Doc. No. 16 at 6). Specifically, Plaintiff asserts that
although the ALJ found Plaintiff “has no past relevant work,” the ALJ relied heavily on
Plaintiff’s prior work as a busboy at Incredible Pizza and Plaintiff’s sister’s testimony about this
The Court finds that the ALJ properly relied on Plaintiff’s part-time work, and on the
evidence regarding Plaintiff’s prior part-time work, including Plaintiff’s sister’s testimony. At
step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the
application date, September 7, 2012 (Tr. 15). However, the ALJ noted that Plaintiff’s earnings
record showed earnings in the third quarter of 2012 from Incredible Pizza Company below the
level required to be considered substantial gainful activity (Id.). The ALJ further addressed
Plaintiff’s part-time work in her RFC determination, noting:
In a work activity report, the claimant indicated that he worked from November 2011
through July of 2012 (four days a week for five hours a day) at a restaurant as a busboy
with duties that included cleaning and bussing tables, lifting trays and pushing a cart. He
reported lifting up to 20 pounds, frequently lifting about 10 pounds, walking for three and
a half hours, standing for four hours, handling, grabbing/grasping big objects for half an
hour, reaching for four hours and writing, typing, handling small objects for three hours
The ALJ also found that, “[t]he testimony of the claimant’s sister was instructive and supported
the residual functional capacity” (Tr. 24). Specifically, the ALJ noted, “[s]he testified that he
was capable of performing his job . . . even without her being there, never needed extra breaks
and got along well with everyone” (Id.). The ALJ further supported the RFC finding in large
part due to Plaintiff's “demonstrated ability perform unskilled activity successfully without any
need for accommodation . . . [and] his sister's testimony as to his work functioning” (Id.).
Plaintiff’s sister testified that she “was able to get [Plaintiff] on” and helped him
complete the application for his part time job as a busboy at the Incredible Pizza Company (Tr.
63-64). Plaintiff’s sister also testified that Plaintiff worked the same hours that she did primarily
so that they could “travel back and forth to work together” (Tr. 65). When asked if she thought
that Plaintiff could have worked without her there, Plaintiff’s sister answered in the affirmative
(Id.). Specifically, she stated, “[H]e was fine. He got along with everybody. Everyone knew
what type of person he was, so there was always someone there to assist him if he needed help.
And there was always someone there to break it down to him if he didn’t understand” (Id.).
Except for this extra assistance, Plaintiff’s sister testified that Plaintiff did not require any extra
breaks and his work did not provide him with any special accommodation (Tr. 66-67). Plaintiff
also testified regarding his work experience, stating, in relevant part, that he left his job because
he had a hard time keeping up (Tr. 39).
Part-time work may be relevant to the evaluation of disability even if the work did not
qualify as substantial gainful activity. See 20 C.F.R. § 416.971 (“Even if the work you have
done was not substantial gainful activity, it may show that you are able to do more work than
you actually did.”). See also Zenker v. Bowen, 872 F.2d 268, 270 (8th Cir. 1989) (finding that a
claimant could perform substantial gainful activity, in part based on the claimant’s part-time
work). Further, “[l]ay testimony as to a claimant’s symptoms or how an impairment affects the
claimant’s ability to work is competent evidence that the ALJ must take into account.” Ghanim
v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014). See also Nowling v. Colvin, 813 F.3d 1110, 1121
(8th Cir. 2016) (Although not a medical source, a lay witness may testify to the severity of a
claimant’s impairment and such testimony “is evidence the ALJ is to consider in applying the
five-step sequential analysis”). Therefore, the ALJ not only could consider the sister’s testimony
regarding Plaintiff’s past work, she was required to do so once it was offered by Plaintiff.
Although Plaintiff asserts that Plaintiff’s sister may have misconstrued Plaintiff’s counsel’s
question regarding Plaintiff’s need for accommodation, Plaintiff’s counsel chose not to clarify
the question or issue with Plaintiff’s sister. Furthermore, Plaintiff’s sister testified that Plaintiff
could have worked without her there and that he did not require any extra breaks (Tr. 15).
Plaintiff also argues that the ALJ improperly discounted Plaintiff’s testimony that he left
his job because he had a tough time keeping up. In fact, the ALJ specifically addressed
Plaintiff’s testimony regarding this point, stating Plaintiff “testified that he worked for about a
year for the Incredible Pizza Company but left because he had a hard time keeping up with the
work” (Tr. 17). The ALJ then continued by addressing the testimony of Plaintiff’s mother as
well as the testimony of Plaintiff’s sister (Tr. 17-18). Although the ALJ does not refer to
Plaintiff’s testimony on this matter, the ALJ clearly considered it and the Court must “defer to
the ALJ's determinations regarding the credibility of testimony, so long as they are supported by
good reasons and substantial evidence.” Perks v. Astrue, 687 F.3d 1086, 1091 (8th Cir. 2012).
Accordingly, the Court finds the ALJ properly considered Plaintiff’s part-time work and
evidence thereof, including Plaintiff’s sister’s testimony.
2. Medical Opinion Evidence
Next, Plaintiff asserts that the ALJ erred by failing to appropriately consider the medical
opinion evidence of record (Doc. No. 16 at 7). Specifically, Plaintiff argues that the ALJ’s RFC
is flawed because it is not based on any treating or examining source (Id.). Instead, Plaintiff
asserts, the ALJ should have granted Dr. Alan Politte’s (“Dr. Politte”) opinion controlling weight
as a treating physician’s opinion, and should have considered and assigned weight to the
consultative examinations conducted in 2006 and 2010 (Id. at 8, 9).
a. Dr. Politte’s Opinion
In a “Medical Opinion Re: Ability to do Work-Related Activities (Mental)” dated
September 18, 2013, Dr. Politte listed Plaintiff’s clinical diagnosis as “mild retardation” (Tr.
286). Dr. Politte indicated that Plaintiff’s condition would never cause him to be absent from
work (Id.). Dr. Politte opined that Plaintiff had “no useful ability to function” in the following
areas: understand and remember detailed instructions; and set realistic goals or make plans
independently of others (Id.). Dr. Politte further opined that Plaintiff was “unable to meet
competitive standards” in the following abilities and aptitudes: remember work-like procedures;
maintain attention for two hour segment; work in coordination with or proximity to others
without being unduly distracted; make simple work-related decisions; complete a normal
workday and workweek without interruptions from psychologically based symptoms; perform at
a consistent pace without an unreasonable number and length of rest periods; deal with normal
work stress; carry out detailed instructions; and deal with stress of semiskilled and skilled work
(Tr. 285-86). The ALJ also noted that Plaintiff would be seriously limited in a number of areas
including, relevant to the current issue, understanding and remembering very short and simple
instructions (Tr. 285). However, Dr. Politte also indicated that Plaintiff had the limited but
satisfactory ability to carry out very short and simple instructions (Id.).
The Court finds that the ALJ gave proper weight to the opinion of Dr. Politte. The ALJ
correctly determined that Dr. Politte was not a treating physician under the applicable rules (Tr.
23). A “treating source” is defined by social security regulations as the claimant’s “own
physician psychologist, or other acceptable medical source” who provides the claimant with
medical treatment or evaluation on an ongoing basis. 20 C.F.R. § 416.902. However, Dr. Politte
only examined Plaintiff twice and for the express purpose of developing evidence to support
Plaintiff’s disability benefits application (Tr. 21, 23, 274). See 20 C.F.R. § 416.902 (“We will
not consider an acceptable medical source to be your treating source if your relationship with the
source is not based on your medical need for treatment or evaluation, but solely on your need to
obtain a report in support of your claim for disability. In such a case, we will consider the
acceptable medical source to be a nontreating source.”).
The ALJ afforded Dr. Politte’s opinion “little weight,” finding Dr. Politte’s opinion (1)
not supported by the record as a whole, and (2) not supported by his own observations and
objective medical findings (Tr. 23). Specifically, the ALJ highlighted the inconsistency of Dr.
Politte’s opinion with the testimony of Plaintiff’s sister, discussed in more detail above,
indicating that Plaintiff “never required extra rest periods, had not trouble working a five or six
hour shift and did not need extra help with this job” (Id.). When a physician’s opinion is
“inconsistent or contrary to the medical evidence as a whole, they are entitled to less weight.”
Krogmeier, 294 F.3d at 1023. See also 20 C.F.R. § 416.927 (“Generally, the more consistent an
opinion is with the record as a whole, the more weight we will give that opinion”). The ALJ also
noted Dr. Politte’s opinion contained internal inconsistencies, including the doctor’s opinion that
Plaintiff was seriously limited in his ability to understand and remember very short and simple
instructions but that he was capable of carrying out very short and simple instructions (Tr. 23,
285). See Perks v. Astrue, 687 F.3d 1086, 1092 (8th Cir. 2012) (internal quotation marks
omitted) (“Physician opinions that are internally inconsistent are entitled to less deference than
they would receive in the absence of inconsistencies.”). Instead, the ALJ indicated that Dr.
Politte did not review Plaintiff’s school records and “relied quite heavily on the subjective report
and symptoms and limitations provided by the [Plaintiff]” (Tr. 23). See Cline v. Colvin, 771
F.3d 1098, 1104 (8th Cir. 2014) (Commissioner may give physician’s opinion less deference
when it is based on claimant’s subjective complaints rather than objective medical evidence).
Moreover, even if Dr. Politte was considered a bona fide treating physician, as is the case
here, “[i]t is appropriate to give little weight to statements of opinion by a treating physician that
consist of nothing more than vague, conclusory statements.” Swarnes v. Astrue, Civ. No. 08–
5025–KES, 2009 WL 454930, at *11 (D.S.D. Feb. 23, 2009) (citation omitted). See also
Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (finding that the ALJ properly discounted
a treating physician's opinion where it consisted of checklist forms, cited no medical evidence,
and provided little to no elaboration).
b. Dr. DeVore’s and Dr. Morgan’s Opinions
To the extent Plaintiff argues that the ALJ’s evaluation of the opinions of Dr. Kyle
DeVore, Ph.D. (Tr. 259-72), consultative examiner, and Dr. James Morgan, Ph.D. (Tr. 72-75), a
state agency single decision maker, was inconsistent with the ALJ’s determination that Plaintiff’s
subjective complaints were not credible, Plaintiff misconstrues the ALJ’s finding. Although
these doctors found aspects of Plaintiff’s statements credible, specifically his self-reported
activities of daily living, neither doctor found Plaintiff’s subjective allegations of disabling
limitations credible considering the mild nature and limited extent of restrictions each found
Plaintiff to possess in their opinions (Tr. 72-73, 270-71).
c. Ms. Bruner’s Opinion
Plaintiff also asserts that the ALJ failed to review the opinions of consulting psychologist
Alison Bruner (“Ms. Bruner”) from 2006 and 2010 (Tr. 249-53, 254-56). Indeed, the ALJ did
not mention the 2006 evaluation and only cited to, but did not discuss, the 2010 evaluation (See
Tr. 23). However, Plaintiff fails to indicate in what way the ALJ failed to consider these
opinions. “An ALJ is not required to discuss every piece of evidence submitted” and these
opinions date well before the relevant time period. Hensley v. Colvin, 829 F.3d 926, 932 (8th
Cir. 2016) (internal quotation marks omitted). Furthermore, upon review of the psychological
evaluations, the Court finds that that ALJ incorporated several limitations found therein. For
example, in the most recent 2010 opinion, Ms. Bruner diagnosed Plaintiff with mild mental
retardation and indicated “[h]e would be best suited to vocational training to learn a skill or to
non complex [sic] types of employment such as dishwashing, dietary, or janitorial services” (Tr.
256). The ALJ similarly limited Plaintiff to simple, repetitive tasks, simple, work-related
decisions, and only occasional changes in work location (Tr. 18). Accordingly, the Court finds
the ALJ did not commit reversible error in her failure to discuss the weight of these opinions.
d. RFC Supported by Medical Opinion Evidence
Finally, Plaintiff asserts that the ALJ erred in her RFC determination by basing the RFC
on the opinions of non-treating, non-examining physicians alone. However, Plaintiff
misconstrues the standard. Indeed, although assessing a claimant's RFC is primarily the
responsibility of the ALJ, a “claimant's residual functional capacity is a medical question.”
Lauer, 245 F.3d at 704 (quoting Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000)). The Eighth
Circuit clarified in Lauer that “[s]ome medical evidence . . . must support the determination of
the claimant's RFC, and the ALJ should obtain medical evidence that addresses the claimant’s
ability to function in the workplace[.]” 245 F.3d at 704, quoting Dykes v. Apfel, 223 F.3d 865,
867 (8th Cir. 2000) (per curiam) and Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000). Thus,
an ALJ is “required to consider at least some supporting evidence from a professional.” Id. See
also Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) (“The 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.”); Eichelberger, 390
F.3d at 591. Express consideration of state agency physicians is sufficient to satisfy this
standard. See Buford v. Colvin, 824 F.3d 793, 797 (8th Cir. 2016).
The Court finds that the ALJ properly supported her residual functional capacity
determination with “some” medical evidence. Specifically, the ALJ appropriately addressed the
medical records and opinion evidence from Dr. Politte. Further, the ALJ considered the medical
opinion evidence from Dr. DeVore (Tr. 259-72), consultative examiner, and Dr. Morgan (Tr. 7275), a state agency single decision maker, affording their opinions “some weight” (Tr. 22).
After reviewing the evidence submitted as a part of Plaintiff’s prior SSI application, Dr.
DeVore issued a case analysis on September 3, 2010 regarding Plaintiff’s medically
determinable impairments and their severity (Tr. 259-72). Dr. DeVore determined that Plaintiff
had the medically determinable impairment of mild mental retardation (Tr. 262). Dr. DeVore
found Plaintiff moderately limited in the following abilities: to understand and remember
detailed instructions; to carry out detailed instructions; and to respond appropriately to changes
in the work setting (Tr. 270-71). Dr. DeVore further opined that Plaintiff had difficulty with
talking, completing tasks, concentration, and understanding (Tr. 269). Dr. DeVore concluded
that because Plaintiff would be able to “ask simple questions, understand/carry out simple
instructions/directions[,h]e would be able to do at least simple unskilled tasks” (Tr. 271).
On November 1, 2012, Dr. Morgan reviewed the evidence in Plaintiff’s file in connection
with Plaintiff’s current SSI application (Tr. 72-75). In his assessment, Dr. Morgan concluded
that while Plaintiff was diagnosed with mental retardation, “claimant would be able to learn a
skill and do non-complex employment such as food services and janitorial services” (Tr. 72). He
opined moderate limitations in activates of daily living and maintaining concentration,
persistence, or pace, and mild limitations in maintaining social functioning (Id.). Specifically,
Dr. Morgan found Plaintiff moderately limited in the following abilities: to understand and
remember detailed instructions; to carry out detailed instructions; to ask simple questions or
request assistance; to accept instructions and respond appropriately to criticism from supervisors;
to respond appropriately to changes in the work setting; to travel in unfamiliar places or use
public transportation; and to set realistic goals or make plans independently of others (Tr. 74-75).
Dr. DeVore and Dr. Morgan are highly qualified experts who offered opinions consistent
with the record as a whole. 20 C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2)(i) (State agency
medical consultants are highly qualified experts in Social Security disability evaluation;
therefore, ALJs must consider their findings as opinion evidence); Kamann v. Colvin, 721 F.3d
945, 951 (8th Cir. 2012) (State agency psychologist’s opinion supported the ALJ’s finding that
claimant could work despite his mental impairments); Casey v. Astrue, 503 F.3d 687, 694 (8th
Cir. 2007) (finding the ALJ did not err in considering State agency psychologist’s opinion along
with the medical evidence as a whole). In her RFC determination, the ALJ clearly took into
account the various limitations indicated by these experts, restricting Plaintiff with the following
nonexertional limitations: he can only understand, remember, and carry out simple, repetitive
tasks; he can only have occasional interaction with supervisors, co-workers, and the public; he
can only make simple, work-related decisions, and he can only tolerate occasional change in
work location (Tr. 18).
Accordingly, the Court finds that the ALJ’s RFC was based on substantial evidence as, in
addition to Plaintiff’s school records, activities of daily living, function reports, and hearing
testimony, the ALJ supported her residual functional capacity determination with some medical
3. Sustained Concentration and Persistence
Plaintiff further asserts that the ALJ failed to consider Program Operations Manual
Systems (“POMS”) DI 24510.061B.2 regarding Plaintiff’s sustained concentration and
persistence (Doc. No. 16 at 8). Specifically, Plaintiff argues that the ALJ failed to consider how
Plaintiff would be able to perform work “on a sustained basis” as required in POMS DI
24510.061B.2 (Id.). POMS DI 24510.061B.2 states:
a. The individual's ability to sustain ongoing mental performance for a full workday is
essential. These may be evaluated through:
-Medical history and reports, and
-Reports of performance at past work, recent work attempts, recreational or
volunteer activities, or vocational evaluations.
b. Limitations in these areas may be demonstrated in typically less demanding settings,
such as sheltered work, vocational training, or school (i.e., in any situation demanding
performance of tasks requiring concentration or task persistence).
c. Use care in inferring an individual's ability to sustain the mental demands of work in a
competitive setting from his/her performance in a less demanding setting, such as
“Although POMS guidelines do not have legal force, and do not bind the Commissioner, [the
Eighth Circuit] has instructed that an ALJ should consider the POMS guidelines.” Hesseltine v.
Colvin, 800 F.3d 461, 465 (8th Cir. 2015).
The Court finds there to be sufficient evidence that the ALJ considered the POMS
Guidelines regarding Plaintiff’s ability to sustain ongoing mental performance. In her RFC
determination, the ALJ limited Plaintiff such that Plaintiff can only understand, remember, and
carry out simple, repetitive tasks; he can only make simple work-related decisions; and he can
only tolerate occasional change in work location (Tr. 18). These limitations appropriately
account for Plaintiff’s intellectual function and, therefore, his ability to sustain ongoing mental
performance for a full workday. See Gragg v. Astrue, 615 F.3d 932, 941 (8th Cir. 2010). In
determining Plaintiff’s RFC, the ALJ provided a detailed analysis in which she reviewed
Plaintiff’s part-time work, the hearing testimony, function reports, and Plaintiff’s educational
records (Tr. 18-24). As addressed in more detail above, the ALJ also reviewed and properly
weighed the various medical opinions of record in formulating her RFC determination. C.f.
Shontos v. Barnhart, 328 F.3d 418, 424 (8th Cir. 2003) (finding no evidence that an ALJ
considered the applicable POMS guidelines where the ALJ disregarded the POMS guidelines by
improperly discounting the medical opinions of plaintiff’s treating mental health providers).
For the reasons set forth above, the court finds that substantial evidence on the record as a
whole supports the Commissioner’s decision that Plaintiff is not disabled.
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and
Plaintiff’s Complaint is DISMISSED with prejudice.
A separate judgment shall be entered incorporating this Memorandum and Order.
Dated this 28th day of March, 2017.
/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE
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?