Fogal v. Berryhill

Filing 27

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the final decision of Defendant denying Social Security benefits to Plaintiff is AFFIRMED. Signed by District Judge Ronnie L. White on 11/17/2020. (KCD)

Case: 4:18-cv-01949-RLW Doc. #: 27 Filed: 11/17/20 Page: 1 of 21 PageID #: 548

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARK FOGAL,
Plaintiff,

v.
ANDREW SAUL, 1
Commissioner of Social Security,
Defendant.

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No. 4:18-CV-1949 RLW

MEMORANDUM AND ORDER

Plaintiff Mark Fogal seeks review of the decision of Defendant Social Security
Commissioner Andrew Saul denying his application for Disability Insurance Benefits (DIB)
under the Social Security Act.

For the reasons set forth below, the Court affirms the

Commissioner's decision.
I.

Background

In October 2015, Plaintiff, who was born November 1966, filed an application for DIB,
alleging that he was disabled as of March 15, 2013 as a result of depression and anxiety. (Tr.
80, 157-58) The Social Security Administration (SSA) denied Plaintiffs claim, and he filed a
timely request for a hearing before an administrative law judge (ALJ). (Tr. 80-86, 96-97) The
SSA granted Plaintiffs request for review and conducted a hearing on October 12, 2017. (Tr.
41-79)
In a decision dated February 13, 2018, the ALJ applied the five-step evaluation set forth
in 20 C.F.R. § 404.1520 and concluded that Plaintiff "has not been under a disability, as defined
1

Andrew Saul is now the Commissioner of Social Security and is automatically substituted
pursuant to Fed. R. Civ. P. 25(d).

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in the Social Security Act, from March 15, 2013 through the date of this decision." (Tr. 24-33)
Plaintiff filed a request for review of the ALJ's decision with the SSA Appeals Council, which
denied review. (Tr. 1-5) Plaintiff has exhausted all administrative remedies, and the ALJ's
decision stands as the Commissioner's final decision.

Sims v. Apfel, 530 U.S. 103, 106-07

(2000).

II.

Evidence Before the ALJ
Plaintiffs work history included positions as policy director, executive director, and

research director for nonprofit organizations. (Tr. 209) Plaintiff testified that he most recently
worked as policy director, but his employer fired him after an outburst aimed at his colleagues at
a partner organization. (Tr. 48) Plaintiff explained that he was involved in a three-year project
with another organization, whose accountant had requested from him a report "explaining where
we were in terms of our budget .... "

(Id.)

Plaintiff had submitted "two or three different

iterations of what we though[t] was an answer," but the accountant continued to request
additional information or different formatting. (Id.) Plaintiff explained that, one morning, the
accountant left Plaintiff a voicemail asking him to redo the report by the end of the day,
and I blew up I guess. I called her supervisor, the project manager over at [the
partner organization] and I left a long and obscene message on his voicemail,
and then I called her up directly, and she certainly felt threatened by it. I didn't
intend that, but the long and the short of it is that the folks over at [the partner
organization] complained to my boss, who then overheard actually the message
that I left the supervisor, ... and so this happened on a Wednesday, and on
Friday afternoon, I was let go.
(Id.) After his termination, Plaintiff continued to search for jobs because "I thought that's what
I needed to do .... I was nervous. I was worried [that] ... I'm going to get another job, and I'm
going to blow up again, and I'm going to get fired again .... but ... I sort of felt backed into a
comer in that sense .... " (Tr. 54)

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Plaintiff testified that he was also fired from a different policy director position because
he "had been pretty vocal about criticizing the firm's owner. ... yelling and whatever in the bull
pen and, you know, complaining to other people within the office what an idiot he was .... " (Tr.
49) In addition to losing jobs, Plaintiff had lost friends "for similar types of outbursts[.]" (Tr.
50)
Plaintiff testified that he generally experienced one or two "really bad" days per month
where "I don't want to move. I don't want to do anything." (Tr. 52) Plaintiff explained that
there had been periods when he experienced these depressive episodes "kind of on a daily basis
for a while ... and there have been periods where ... I'd go a couple of months without really
hav[ing] a bad day." (Tr. 53) Plaintiff stated that the longer episodes were associated with
"external event[s]," such as an election and his termination. (Id.) Plaintiff affirmed that he had
experienced thoughts of suicide, and two or three years ago he "had plans about suicide." (Tr.
61) During that period, he also experienced frequent crying spells. (Id.)
Plaintiff stated that he experienced panic attacks one to three times per month
"depend[ing] upon what's going on." (Tr. 59) On the advice of his doctor, Plaintiff took Xanax
for panic attacks, and the panic attacks usually resolved in thirty to sixty minutes. (Tr. 59)
However, Plaintiff tried to avoid taking Xanax because it made him "really sleepy[.]" (Id.)
In regard to his concentration, Plaintiff stated that "[s]ome days it's good, and some days
it isn't."

(Tr.

52)

Plaintiff sometimes had difficulty completing tasks at home, such as

following through on a refrigerator repair, and he needed reminders from his wife. (Tr. 62-63)
When his attorney asked if he had difficulty focusing on and retaining reading material, Plaintiff
described a recent correspondence with a charter school coordinator, which he "set [] aside"
because "I can't pay attention to this right now .... I hope in the next day or two [to] get back to

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her." 2 (Tr. 64-65) Plaintiff testified that his concentration problems sometimes lasted for three
or four days. (Tr. 67) However, when his attorney asked what symptoms would prevent him
from maintaining an unskilled job, he stated "I don't think concentration would be the thing that
would concern me .... What would concern me would [be] my dealing ... with stresses." (Tr. 6869)
Plaintiff had "tried a lot of different medications" for his depression and anxiety. (Tr. 55)
He explained that the medications were generally effective "for two, three whatever years, and
then ... their effectiveness goes down." (Tr. 55) Plaintiff experienced "sporadic" side effects
from his medications, such as dizziness during physical activity, but denied that they made him
sleepy during the day. (Tr. 56)
Plaintiff testified that, on a typical day, he awoke around 6:30 a.m. to drive his wife to
work and usually took one or two one-hour naps during the day. (Tr. 56) Although he no longer
socialized with friends, he went to restaurants two or three times a week with his wife, stating "I
tend to be pretty well-behaved in restaurants." (Tr. 50) Plaintiff did not have problems grocery
shopping, but stated that he experienced "road rage." (Tr. 50, 67) Plaintiff explained that he
avoided outbursts by avoiding "the situation where they might occur." (Tr. 67) For example,
Plaintiff went to the grocery store on weekday mornings when the store was quiet and "the
checkout line isn't going to drive me nuts .... " (Id.)
A vocational expert also testified at the hearing.

(Tr. 72-79)

The ALJ asked the

vocational expert to consider a hypothetical individual with Plaintiffs age, education, and work
experience with:

2

Plaintiff explained that this correspondence was not work-related. He stated: "I enjoy being
involved in public affairs. It's just I can't do it ... on a regular basis, so this is a nice way of kind
of ... being in conversation with people who matter and doing it on my terms." (Tr. 65)
4

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[n]o exertional limitations and is able to perform at least moderately complex
tasks but can have only minimal changes in job setting and duties, can have no
contact with the general public, only occasional contact with coworkers and
supervisors, but can handle no customer complaints or perform no fast-paced
production work.
(Tr. 74) The vocational expert stated that such an individual could not perform Plaintiffs past
work, but could perform other jobs such as cleaner or marker. (Id.) However, the additional
limitation of either unscheduled, weekly thirty- to sixty-minute breaks "due to panic attacks or
other symptoms" or two extra ten- to fifteen-minute breaks per day would preclude employment.
(Tr. 75-76) Additionally, if the hypothetical individual displayed "extreme behavior ... such as a
spoken refusal to follow directions, cursing or name-calling ... on average once a month,'' the
person would not be able to maintain employment. (Tr. 77) Finally, the vocational expert
testified that there are jobs that "involved no contact with coworkers and still occasional contact
with supervisors,'' such as night cleaners. (Tr. 78)
In regard to Plaintiffs medical records, the Court adopts the facts that Plaintiff set forth
in his statement of material facts to the extent they were admitted by the Commissioner. [ECF
Nos. 19, 24-1] The Court also adopts the facts contained in the Commissioner's statement of
additional facts because Plaintiff did not dispute them. [ECF No. 24-2]

III.

Standards for Determining Disability Under the Social Security Act

Eligibility for disability benefits under the Social Security Act ("Act") requires a claimant
to demonstrate that he or she suffers from a physical or mental disability. 42 U.S.C. § 423(a)(l).
The Act defines disability as "the inability to do 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 not less than 12 months."
20 C.F.R. § 404.1505(a). The impairment must be "of such severity that [the claimant] is not

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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. § 1382c(a)(3)(B).
To determine whether a claimant is disabled, the Commissioner engages in a five-step
evaluation process. See 20 C.F .R. § 404.1520( a). Those steps require a claimant to first show
that he or she is not engaged in substantial gainful activity. Id. Second, the claimant must
establish that she has a "severe impairment," defined as "any impairment or combination
of impairments which significantly limits [claimant's] physical or mental ability to do basic work
activities." Id. at § 404.1520( c). "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 her ability to work." Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir.
2007) (quotation omitted). At step three, the ALJ considers whether the Plaintiffs impairment
meets or equals an impairment listed in 20 C.F.R., Subpart P, Appendix 1. Id. at 404.1520(d).
Prior to step four, the Commissioner must assess the claimant's residual functional
capacity (RFC), which is "the most a claimant can do despite [his or her] limitations." Moore v.
Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(l)). RFC is defined as
"the most a claimant can do despite her limitations." Id. (citing 20 C.F.R. § 404.1545(a)(l)).
At step four, the ALJ determines whether the claimant can return to her past relevant
work by comparing the claimant's RFC with the physical and mental demands of the claimant's
past relevant work. 20 C.F.R. § 404.1520(±); McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir.
2011 ). If the claimant can still perform past relevant work, she will not be found to be disabled;
if the claimant cannot, the analysis proceeds to the next step. McCoy, 648 F.3d at 611.

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Through step four, the burden remains with the claimant to prove that he or she is
disabled.

Moore, 572 F.3d at 523.

At step five, the burden shifts to the Commissioner to

establish that, given the claimant's RFC, age, education, and work experience, there are a
significant number of other jobs in the national economy that the claimant can perform.

20

C.F.R § 404.1520(g); Brock v. Astrue, 674 F.3d 1062, 1064 (8th Cir. 2012).

If

the claimant cannot make an adjustment to other work, then she will be found to be
disabled. Id. at § 404.1520(g).
IV.

ALJ's Decision
Applying the five-step evaluation, the ALJ found that Plaintiff: (1) had not engaged in

substantial gainful activity after March 15, 2013, the alleged onset date; and (2) had the severe
impairment of major depressive disorder. (Tr. 26) At step three, the ALJ found that Plaintiff did
not have an impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Id)
The ALJ reviewed Plaintiff's medical records and found they were largely illegible.
Nevertheless, the ALJ concluded that "although the evidence suggests that the claimant's mental
impairment was severe, the evidence does not suggest that it resulted in greater limitations than
those included in the ... residual functional capacity finding." (Id.) The ALJ reasoned that
Plaintiff's mental impairments were not disabling because he was responsive to psychiatric and
therapeutic treatment, such that he was able to meet with his psychologist on a monthly basis and
psychiatrist on a quarterly basis, and Plaintiff did not require electroconvulsive shock therapy
(ECT) or inpatient psychiatric treatment. (Tr. 29) The ALJ also noted that the mental status
examinations (MSE) regularly completed by Plaintiff's psychiatrist were generally normal and
Plaintiff reported improvement to his psychiatrist. (Id.)

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The ALJ determined that Plaintiff had the RFC to:
perform a full range of work at all exertional levels but with the following
nonexertional limitation: he is able to perform at least moderately complex
tasks, but can have only minimal changes in job setting and duties. He can
have no contact with the general public. He can have only occasional contact
with coworkers and supervisors. He cannot handle customer complaints or
perform fast[-]paced production work.
(Tr. 28) Based on the vocational expert's testimony, the ALJ found that Plaintiff was unable to
perform any past relevant work, but was able to perform other jobs that existed in significant
numbers in the national economy, such as cleaner and marker. (Tr. 31-32) The ALJ therefore
concluded that Plaintiff was not disabled. (Tr. 33)

V.

Discussion
Plaintiff claims that substantial evidence did not support the ALJ' s determination that

Plaintiff was not disabled because the ALJ:

(1) failed to properly evaluate his subjective

complaints; (2) had a duty to seek clarification or supplementation because she was unable to
read his mental health providers' treatment notes; (3) failed to include in the RFC greater
limitations on Plaintiff's interaction with coworkers and supervisors; and (4) formulated an RFC
that was not supported by substantial evidence. 3 [ECF No. 18] The Commissioner counters that
the ALJ properly evaluated the record, including Plaintiff's subjective symptoms and the medical
opinion evidence, and determined Plaintiff's RFC. [ECF No. 24] In regard to the handwritten
treatment notes, the Commissioner asserts that the ALJ was not required to obtain additional
medical evidence because the record contained sufficient evidence to support the ALJ' s decision.
[Id.]
A. Standard of Judicial Review

3

For ease of analysis, the Court considers the Plaintiff's arguments out of order.
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A court must affirm an ALJ's decision if it is supported by substantial evidence. 42
U.S.C. § 405(g).

"Substantial evidence is less than a preponderance, but is enough that a

reasonable mind would find it adequate to support the Commissioner's conclusion." Chesser v.
Berryhill, 858 F.3d 1161, 1164 (8th Cir. 2017) (quoting Prosch v. Apfel, 201 F.3d 1010, 1012
(8th Cir. 2000)). A court must consider "both evidence that supports and evidence that detracts
from the ALJ's decision, [but it] may not reverse the decision merely because there is substantial
evidence support[ing] a contrary outcome." Id. (quoting Prosch, 201 F.3d at 1012) (internal
quotation marks omitted).
A court does not "reweigh the evidence presented to the ALJ, and [it] defer[s] to the
ALJ's determinations regarding the credibility of testimony, as long as those determination are
supported by good reasons and substantial evidence." Renstrom v. Astrue, 680 F.3d 1057, 1064
(8th Cir. 2012) (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006)). Therefore, a
court must affirm the ALJ' s decision if "it is possible to draw two inconsistent positions from the
evidence and one of those positions represents the ALJ's findings[.]" Wright v. Colvin, 789 F.3d
847, 852 (8th Cir. 2015) (quoting Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011)).
B. Subjective Complaints
The Court first considers the ALJ's evaluation of Plaintiffs subjective complaints,
because the ALJ' s evaluation of Plaintiffs symptoms was essential to her determination of other
issues, including Plaintiffs RFC. 4 See Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010)

4

The SSA issued a new ruling, effective March 28, 2016, that eliminates the use of the term
"credibility" when evaluating a claimant's subjective statement of symptoms, clarifying that
"subjective symptom evaluation is not an examination of an individual's character." SSR 16-3p,
2017 WL 5180304, at *2 (SSA Oct. 2017). The factors to be considered in evaluating a
claimant's statements, however, remain the same. See id.; Schmidt v. Berryhill, No. 4:17CV02375 CDP, 2019 WL 339634, at *3 n.4 (E.D. Mo. Jan. 28, 2019). Because the ALJ's
decision in this case was issued after March 28, 2016, SSR 16-3p applies to this matter.
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("[The plaintiff] fails to recogmze that the ALJ's determination regarding her RFC was
influenced by his determination that her allegations were not credible."). In determining the
credibility of a plaintiffs subjective complaints, a court considers the following factors: 1) the
claimant's daily activities; 2) the duration, intensity, and frequency of the symptoms; 3)
precipitating and aggravating factors; 4) the dosage, effectiveness, and side effects of
medication; 5) any functional restrictions; 6) the claimant's work history; and 7) the absence of
objective medical evidence to support the claimant's complaints. Finch v. Astrue, 547 F.3d 933,
935 (8th Cir. 2008) (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). "If an ALJ
explicitly discredits the claimant's testimony and gives good reason for doing so, [a court] will
normally defer to the ALJ's credibility determination." Gregg v. Barnhart, 354 F.3d 710, 714
(8th Cir. 2003). See also McDade v. Astrue, 720 F.3d 994, 998 (8th Cir. 2013).
Here, the ALJ found that, while "the evidence suggests that the claimant's mental
impairment was severe, the evidence does not suggest that it resulted in greater limitations than
those included in the above residual functional capacity finding." (Tr. 29) First, the ALJ noted
that "although [Plaintiff] was involved in regular psychiatric and therapy appointments, he was
responsive to treatment such that he only met with his therapist on a monthly basis and his
psychiatrist on a quarterly basis." (Tr. 29) While the ALJ appeared to undercount Plaintiffs
therapy appointments, which were not monthly but rather every three weeks, the ALJ properly
considered that Plaintiff was seen "relatively infrequently for his impairments despite his
allegations of disabling symptoms."

Kamann v. Colvin, 721 F.3d 945, 950-51 (8th Cir. 2012);

see also Casey v. Astrue, 503 F.3d 687, 693 (8th Cir. 2007) (noting that the claimant
sought treatment "far less frequently than one would expect based on the [symptoms] that [he]
alleges.").

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Additionally, the ALJ found that Plaintiffs conservative treatment history undermined
his claims regarding the limiting effects of his impairment.

(Tr. 29)

The ALJ noted that

Plaintiffs providers managed his symptoms with therapy and medications. Plaintiff did not
require ECT or inpatient treatment. A record of conservative treatment is a proper consideration
when assessing a claimant's subjective complaints. See Milam v. Colvin, 794 F.3d 978, 985 (8th
Cir. 2015) (ALJ properly considered claimant's relatively conservative treatment history when
evaluating credibility); Hoskin v. Saul, No. 4:19-CV-433 SPM, 2020 WL 870985, at* 7 (E.D.
Mo. Feb. 21, 2020) (same).
Next, the ALJ observed that Plaintiffs medications effectively controlled his symptoms.
(Tr. 29) More specifically, the ALJ noted that Plaintiff "repeatedly reported that his medications
were effective" and he required few medication changes. (Tr. 29) In fact, between March 2015
and August 2018, Plaintiffs psychiatrist adjusted Plaintiffs medications only once, which
suggests that Plaintiffs symptoms were adequately controlled.

"If an impairment can be

controlled by treatment or medication, it cannot be considered disabling." Hensley v. Colvin,
829 F.3d 926, 933-34 (8th Cir. 2016) (quoting Brace v. Astrue, 578 F.3d 882, 885 (8th Cir.
2009)).

See also Hoskin, 2020 WL 870985, at *7 ("The ALJ ... properly considered that

Plaintiff reported some symptom improvement from her prescribed medication.").
Finally, in completing the psychiatric review technique prescribed by the regulations, 5 the
ALJ considered Plaintiffs testimony and self-reported activities of daily living, which

5

When mental impairments are present, the Commissioner is required to evaluate the severity of
those impairments using a special technique called the psychiatric review technique. Cuthrell v.
Astrue, 702 F.3d 1114, 1117 (8th Cir. 2013) (citing 20 C.F.R. §§ 404.1520a(a), 416.902a(a)).
The psychiatric review technique requires the Commissioner to "first evaluate [the claimant's]
pertinent symptoms, signs, and laboratory findings to determine whether [the claimant has] a
medically determinable mental impairment(s)." Id. at 1118 (citing 20 C.F.R. § 404.1520a(b)(l)).
The Commissioner then rates "the degree of functional limitation" in the following four broad
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undermined the alleged severity of his mental impairment. For example, the ALJ noted that
Plaintiff tended to his personal care, read the newspaper, drove his wife to work, used computers
and Face book, took care of his dogs, and went to restaurants and the grocery store. Plaintiff also
spent time with his wife, mother, and stepfather. When assessing the credibility of a claimant's
subjective complaints, an ALJ may consider inconsistencies between the claimant's activities of
daily living and allegations of disabling symptoms. See McDade, 720 F.3d at 998. See also
Halverson v. Astrue, 600 F.3d 922, 932-33 (8th Cir. 2010) (the ALJ properly considered daily
activities in conjunction with other inconsistencies in the record in assessing the credibility of
Plaintiffs complaints).
The Court finds the ALJ considered Plaintiffs subjective complaints on the basis of the
entire record and set out a number of inconsistencies that detracted from the credibility of his
allegations of disabling symptoms. Because the ALJ' s determination not to credit Plaintiffs
subjective complaints was supported by "good reasons and substantial evidence,'' the Court
defers to her determination. See Gonzales, 465 F.3d at 894.
C. Duty to develop the record
Plaintiff argues that the ALJ had a duty to seek clarification or supplementation of the
record because she was unable to read ( 1) the treatment notes of Plaintiffs psychologist in their
entirety and (2) the handwritten, non-checklist portions of Plaintiffs psychiatrists' treatment
notes. In response, the Commissioner asserts that the ALJ did not require clarification from
Plaintiffs mental healthcare providers because the ALJ "was able to rely on the providers' own

functional areas: (1) understand, remember, or apply information; (2) interact with others; (3)
concentrate, persist, or maintain pace; and (4) adapt or manage oneself. 20 C.F.R. §§
404.1520a( c), 416.902a( c).
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interpretations of their notes - as reflected in their medical opinion statements[.]" [ECF No. 24
at 13 (emphasis in original)]
In this case, the only records of Plaintiffs mental health treatment between January 2013
and August 2018 are the handwritten notes of his psychiatrists, Drs. Montani and Rauban, and
psychologist Dr. Mozenter. Dr. Montani treated Plaintiff from December 2013 to December
2014, during which time he frequently changed Plaintiffs medications and/or adjusted dosages.
(Tr. 317-18, 320-25)

In January and April 2014, Dr. Montani's checklist mental status

examinations (MSE) noted that Plaintiffs mood was dysthymic. (Tr. 321, 324) In April 2014
Dr. Montani observed that Plaintiff was experiencing suicidal thoughts with "no intent,"
continued Plaintiffs Wellbutrin and Xanax, and prescribed Zoloft. (Tr. 321, 324) The MSEs
completed by Dr. Montani after May 2014 were normal. (Tr. 316-18)
Plaintiff established care with psychiatrist Dr. Rauban in March 2015. (Tr. 355-56) At
that time, Plaintiff was taking Wellbutrin, Zoloft, and Xanax. (Tr. 355) Dr. Rauban performed
an MSE, which reflected that Plaintiffs speech and thought processes were normal and he
denied suicidal, homicidal, and violent ideation. (Tr. 356) At their next appointment in June
2015, Dr. Rauban completed a checklist MSE, stating that Plaintiff was:

well-dressed and

groomed; spoke with a regular rate and rhythm; demonstrated logical and sequential flow and
content of thought; exhibited intact association and attention/concentration; denied suicidal and
homicidal ideation; and had a euthymic affect/mood. (Tr. 313) Plaintiffs checklist MSEs were
unchanged in September and December 2015 (Tr. 311, 312).
When Dr. Rauban treated Plaintiff in March 2016, the MSE was normal except Dr.
Rauban noted that Plaintiffs speech was "soft" and his affect/mood was dysthymic. (Tr. 351)
Dr. Rauban increased Plaintiffs Zoloft. (Id.) At Plaintiffs subsequent appointments with Dr.

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Rauban in June 2016, October 2016, January 2017, May 2017, August 2017, February 2018, and
May 2018, his MSEs were normal. (Tr. 8, 20, 347-50)
Dr. Rauban completed a medical source statement (MSS) for Plaintiff in August 2017,
diagnosing him with major depressive disorder. (Tr. 326-29) Dr. Rauban wrote that Plaintiff
was "on medication and receives psychotherapy from a psychologist and is fairly treatment
responsive to the point he is now able to go 3-4 months between appointments." (Tr. 326) Dr.
Rauban described Plaintiff as "negative and dysthymic most days, cynical and sarcastic
[illegible] his depression."

(Id.)

Dr. Rauban assessed Plaintiffs prognosis as "fair," and

checked the following signs and symptoms: anhedonia or pervasive loss of interest in almost all
activities; decreased energy; blunt, flat or inappropriate affect; and mood disturbance. (Tr. 32627)
On the checklist form of "mental abilities and aptitudes needed to do unskilled work," Dr.
Rauban stated that Plaintiffs ability to work in coordination with or proximity to others without
being unduly distracted was "seriously limited but not precluded," and the following abilities
were "limited but satisfactory": remember work-like procedures; maintain regular attendance
and be punctual; sustain an ordinary routine without special supervision; complete a normal
work day and work week; perform at a consistent pace; accept instruction and respond
appropriately to criticism from supervisors; deal with normal work stress; interact appropriately
with the general public, coworkers, supervisors; and maintain socially appropriate behavior. (Tr.
328) Finally, Dr. Rauban estimated that Plaintiffs impairments or treatment would cause him to
be absent from work two to three days per month. (Tr. 329)

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The record also included the treatment notes of psychologist Dr. Mozenter who treated
Plaintiff from January 2014 through August 2018. 6 In August 2018, Dr. Mozenter completed an
MSS for Plaintiff, diagnosing him with major depressive disorder. (Tr. 385-88) Dr. Mozenter
stated that she provided Plaintiff "anger management, cognitive behavioral therapies, behavioral
anxiety and stress management along side pharmacotherapy per MD," and she assessed his
prognosis as "poor regarding consistency needed to work."
following clinical findings:

(Tr. 385)

She described the

"Pervasive mood + anxiety instability with anger at times,

suicidality, inadequate energy, concentration + ability to perform tasks in a reliable, consistent
manner." (Id.) On a list of signs and symptoms, Dr. Mozenter placed checkmarks next to the
following: anhedonia; decreased energy; thoughts of suicide; blunt, flat, or inappropriate affect;
feelings of guilt or worthlessness; impairment in impulse control; mood disturbance; difficulty
thinking or concentration; pathological dependence, passivity, or aggressivity; change in
personality; seclusiveness; emotional withdrawal or isolation; intense and unstable interpersonal
relationships and impulsive and damaging behavior; emotional instability; deeply ingrained,
maladaptive patterns of behavior; inflated self-esteem; and pathologically inappropriate
suspiciousness or hostility. (Tr. 386)
Dr. Mozenter assessed Plaintiffs "abilities and aptitudes needed to do unskilled work"
and opined that Plaintiff was: "unable to meet competitive standards" in his ability to accept and
respond appropriately to criticism from supervisors and interact appropriately with the general
public, coworkers, and supervisors; "seriously limited but not precluded" in his ability to work in

6

Dr. Mozenter' s notes are handwritten and largely illegible. The Court notes, however, that
Plaintiffs appointments with Dr. Mozenter became less frequent over time. Plaintiff saw Dr.
Mozenter nineteen times in 2013, nineteen times in 2014, sixteen times in 2015, fifteen times in
2016, thirteen times in 2017, and twelve times in 2018.
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coordination or proximity to others, get along with co-workers or peers, and deal with normal
work stress; and "limited but satisfactory" in his ability to maintain regular attendance, complete
a normal work day and work week, respond appropriately to changes in work setting, and
maintain socially appropriate behavior. (Tr. 387) Dr. Mozenter explained these limitations as
follows:

"Impulsivity, judgment, interpersonal relationships and team cooperation are

unpredictable and often inappropriate as evidenced by outbursts, all or none thinking and
emotional reactivity and hostility at times. I have witnessed this behavior and been subjected to
it." (Tr. 387) Dr. Mozenter estimated that Plaintiff would miss zero to one day of work per
month, and she explained that Plaintiff would have difficulty maintaining full-time employment
due to: "issues with anger, interpersonal relationships, anxiety + difficulty sustaining stable,
predictable, appropriate interpersonal/peer/supervisor behavior and relationships." (Tr. 388)
The ALJ reviewed Plaintiff's medical records and observed that Plaintiff met with Dr.
Mozenter "on an approximately monthly basis" between April 2013 and October 2017, but stated
that "because Dr. Mozenter' s treatment notes are handwritten and illegible, the content of the
appointments is indiscernible." (Tr. 28) As to Dr. Rauban's treatment notes, the ALJ stated that
his notes were also "largely handwritten and illegible" but, "because they are handwritten into a
typed template, it is possible to discern that they consistently document normal mental status
examinations." (Id.)
Plaintiff argues that, because the ALJ was unable to read Dr. Mozenter' s records and only
the MSE portions of Dr. Rauban's records, she had a duty to seek clarification or
supplementation. Plaintiff correctly asserts that an ALJ "has a duty to fully and fairly develop
the evidentiary record." Byes v. Astrue, 687 F.3d 913, 915-16 (8th Cir. 2012). Additionally,
"illegibility of important evidentiary material can warrant a remand for clarification and

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supplementation." Bishop v. Sullivan, 900 F.2d 1259, 1262 (8th Cir. 1990). However, an ALJ is
not required "to seek additional clarifying statements from a treating physician unless a crucial
issue is undeveloped." 7 Jones v. Astrue, 619 F.3d 963, 969 (8th Cir. 2010) (quoting Goff v.
Barnhart, 421 F.3d 785, 791 (8th Cir. 2005)). "[T]he claimant's failure to provide [legible]
medical evidence . . . should not be held against the ALJ when there is medical evidence that
supports the ALJ's decision."

Shackleford v. Astrue, No. 4:10-CV-2175 AGF, 2012 WL

918864, at *11 (E.D. Mo. Mar. 19, 2012) (quoting Steed v. Astrue, 524 F.3d 872, 876 (8th Cir.
2008)).
Here, despite the ALJ's inability to read Dr. Mozenter's and Dr. Rauban's treatment
notes, the record contained substantial evidence of Plaintiff's mental condition such that the
record did not require further development. Importantly, the record included Dr. Mozenter's
MSS, which she completed based upon her long-term treatment of Plaintiff's mental impairment.
In the MSS, Dr. Mozenter did not simply check boxes on the form, but she set forth her
observations, her clinical findings, and the bases for her opinion. The record also contained the
MS Es regularly completed by Plaintiff's psychiatrists between December 2013 and May 2018,
and the MSS of Plaintiff's long-time treating psychiatrist. Given the substantial evidence of
Plaintiff's mental impairment, this is not a case in which a crucial issue was undeveloped. The
Court therefore finds that there was no need for the ALJ to further develop the record. 8 See, e.g.,

7

The regulations explain that "contacting a treating physician is necessary only if the doctor's
records are 'inadequate for us to determine whether [the claimant is] disabled' such as 'when the
report from your medical source contains a conflict or ambiguity that must be resolved, the
report does not contain all the necessary information, or does not appear to be based on
medically acceptable clinical and laboratory diagnostic techniques.' 20 C.F.R. §§ 404.1512(e),
416.912(e)." Jones, 619 F.3d at 969 (quoting Goff, 421 F.3d at 791);
8
Plaintiff briefly argues that, because the ALJ was unable to read Dr. Mozenter's treatment
notes, substantial evidence did not support the ALJ's decision to assign Dr. Mozenter's opinion
partial weight. A treating physician's opinion regarding a claimant's impairments is entitled
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Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011); Hovis v. Colvin, No. 1:15-CV-73 JMB,
2016 WL 4158867, at *13 (E.D. Mo. Aug. 5, 2016).
D. RFC
Plaintiff argues that the ALJ erred in formulating his RFC because the RFC allowed
Plaintiff occasional interaction with coworkers and supervisors.

More specifically, Plaintiff

argues that, because both Dr. Mozenter and Dr. Rauban opined that Plaintiffs ability to work in
coordination with or proximity to others was seriously limited, and the ALJ assigned Dr.
Rauban's opinion "great weight," the RFC was not sufficiently limiting. Plaintiff also contends
that the RFC was not supported by substantial evidence. The Commissioner counters that the
RFC assessment in this case reflects the ALJ' s careful consideration of Plaintiffs credible workrelated limitations.
RFC is the most a claimant can still do in a work setting despite that claimant's
physical or mental limitations. Martise, 641 F.3d at 923; 20 C.F.R. § 416.945(a)(l). An ALJ
determines a claimant's RFC "based on all the relevant evidence, including medical records,
observations of treating physicians and others, and [claimant's] own description of [his]
limitations." Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting Anderson v. Shalala,
51 F.3d 777, 779 (8th Cir. 1995)).

to controlling weight where "the opinion is well supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the
record." Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000). Where an ALJ gives a treating
physician's opinion less than controlling weight, "[t]he regulations require that the ALJ 'always
give good reasons' for the weight afforded to a treating physician's evaluation." Reed v.
Barnhart, 399 F.3d 917, 921 (8th Cir. 2005) (quoting 20 C.F.R. § 404.1527(d)(2)). Here, the
ALJ found that "the record does not indicate that the claimant's mental abilities are as limited as
Dr. Mozenter suggested" and assigned Dr. Mozenter's opinion "some weight." (Tr. 30) The
ALJ explained that the evidence "show[ed] few medication changes and consistently normal
mental status examinations, including a logical and sequential flow of thought and intact
attention/concentration." (Tr. 30) The Court finds that substantial evidence supported the ALJ's
decision to assign Dr. Mozenter's opinion partial weight.
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"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 (quoting Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007)).
"However, there is no requirement that an RFC determination be supported by a specific medical
opinion or that an RFC must be linked in each of its components to a specific medical opinion."
Hull v. Berryhill, No. 2:17-CV-15 NCC, 2018 WL 4538996, at *7 (E.D. Mo. Sept. 20, 2018)
(citing Hensley, 829 F.3d at 931-32, Martise, 641 F.3d at 927).
Drs. Mozenter and Rauban opined in their MSS's that Plaintiff's ability to work in
coordination with or proximity to others without becoming unduly distracted was "seriously
limited but not precluded." (Tr. 328, 387) While the ALJ assigned only "some weight" to Dr.
Mozenter' s opinion, she found that "the medical evidence of record supports the vast majority of
Dr. Ra[u]ban's opinion."9 (Tr. 30) The ALJ explained Plaintiff's consistently normal MSEs,
infrequent medication changes, and need for only quarterly appointments since July 2014
supported Dr. Rauban's assessment of Plaintiff's functional limitations. Based on the ALJ's
review of the record as a whole, the ALJ determined that Plaintiff was able to perform
"moderately complex tasks" with "minimal changes in job setting and duties," "only occasional
contact with coworkers and supervisors," and no "contact with the general public," "fast paced
production work," or "hand[ling] customer complaints." (Tr. 28)
As an initial matter, the Court finds no inconsistency between Dr. Rauban's opinion that
Plaintiff's ability to work with or in proximity to others was "seriously limited but not
precluded' and the ALJ' s finding that Plaintiff could sustain occasional contact with coworkers

and supervisors. Furthermore, evidence in the record supported that limitation. For example,
9

The ALJ assigned "great weight" to Dr. Rauban's opinion "apart from the statement regarding
a speculative prediction of the claimant's absences." (Tr. 30)
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Plaintiff testified that he was able to frequent restaurants, grocery shop, and spend time with his
wife. Plaintiff also searched for a job, communicated with others on Face book, and maintained
correspondences about public affairs. These activities suggested that Plaintiff had at least a
limited ability to interact with others.

Additionally, the MS Es completed by Dr. Rauban

consistently stated that Plaintiff was well-groomed, his thought process was logical and
sequential, his affect/mood was euthymic, and his speech and attention/concentration were
normal. Upon review of the record as a whole, the Court finds substantial evidence supported
the ALJ's limitations on Plaintiffs contact with coworkers and supervisors. See, e.g., Brown v.
Saul, 2:19-CV-42 ACL, 2020 WL 5632442, at *9 (E.D. Mo. Sept. 21, 2020).
Finally, Plaintiff argues that the RFC is not supported by substantial evidence because
Dr. Mozenter's treatment notes contained evidence of Plaintiffs mental impairment that the ALJ
neither considered nor discussed.

For example, Plaintiff points out that, according to Dr.

Mozenter' s treatment notes of March 2014, Plaintiff reported crying episodes, anger outbursts,
and an argument with his father, after which he threw a glass at the wall and asked his father to
leave. (Tr. 404) In April 2014, Plaintiff called Dr. Mozenter "screaming" in response to a text
message she sent him and, later that month, Dr. Rauban suggested ECT, Lithium and/or
clonazepam to treat Plaintiffs ongoing suicidality. (Tr. 320, 405)
Notably, the episodes Plaintiff cites occurred in early-2014, more than three years before
the ALJ's hearing in October 2017.

Plaintiffs medical records reflect that his condition

improved and stabilized over time. Plaintiffs MSEs were consistently normal after May 2014
and Dr. Rauban adjusted Plaintiffs medications only once between March 2015 and May 2018.
As previously stated, a condition that is "controllable and amenable to treatment [] 'do[es] not

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support a finding of disability."' Martise, 641 F.3d at 924 (quoting Davidson v. Astrue, 578 F.3d
838, 846 (8th Cir. 2009)).
In determining Plaintiffs RFC, the ALJ properly considered Plaintiffs medical records
(to the extent they were legible), medical opinion evidence, and testimony, as well as the thirdparty function report completed by Plaintiffs wife.

The ALJ noted that Plaintiff regularly

treated with a psychiatrist and psychologist, was responsive to treatment, and improved with
medication. The ALJ also noted the conservative nature of Plaintiffs mental health treatment,
which consisted of medication and therapy, and the fact that Plaintiff did not require ECT or
inpatient psychiatric treatment.

The ALJ nonetheless credited Plaintiffs claims of severe

depression and emotional volatility and limited him to no contact with the public and occasional
contact with coworkers and supervisors. The Court therefore finds that substantial evidence on
the record supported the ALJ' s RFC determination.
VI.

Conclusion
For the reasons discussed above, the Court finds that substantial evidence in the record as

a whole supports Defendant's decision that Plaintiff is not disabled. Accordingly,
IT IS HEREBY ORDERED that the final decision of Defendant denying Social

Security benefits to Plaintiff is AFFIRMED.
A separate judgment in accordance with this Memorandum and Order is entered this date.

Dated this 17th day of November, 2020.

~r/./dlih
~!EL.WHITE
UNITED STATES DISTRICT JUDGE

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