Gregory v. Saul
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 11/16/2020. (AFO)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
ANDREW M. SAUL,
Commissioner of Social Security,
Case No. 4:19-cv-02152-AGF
MEMORANDUM AND ORDER
This action is before the Court for judicial review of the final decision of the
Commissioner of Social Security finding that Plaintiff Michelle Gregory is not disabled,
and thus not entitled to disability insurance benefits under Title II of the Social Security
Act, 42 U.S.C. §§ 401-434. For the reasons set forth below, the decision of the
Commissioner will be affirmed.
The Court adopts the facts set forth in Plaintiff’s statement of facts (ECF No. 15)
and Defendant’s response with additional facts (ECF No. 19-2). Together, these
statements provide a fair description of the record before the Court. Specific facts will be
discussed as needed to address the parties’ arguments.
Plaintiff was born on April 21, 1972 and completed high school in 1990. Between
2004 and 2016, she held jobs as a security guard, an operating manager for a landscaping
company, and a branch and account manager for a loan agency. Tr. 190. On January 9,
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2017, Plaintiff filed an application for disability insurance benefits alleging a disability
beginning September 28, 2016. Her application was denied at the administrative level,
and she thereafter requested a hearing before an Administrative Law Judge (“ALJ”). On
October 4, 2018, the ALJ heard testimony from Plaintiff, who was represented by
counsel, and from Ms. Deborah Determan, a vocational expert (“VE”). By decision
dated December 21, 2018, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform light work as defined by the Commissioner’s regulations,
except for the following limitations:
[She] should only occasionally climb ramps and stairs; never climb ladders,
ropes, or scaffolds; occasionally stoop, kneel, crouch, and crawl; never be
exposed to unprotected heights or hazardous machinery; never have
concentrated exposure to extreme temperatures; and limited to simple,
routine tasks, with only occasional interaction with supervisors and
coworkers, occasional interaction with the general public, and few changes
in work setting.
The ALJ next found that Plaintiff could perform certain light unskilled jobs listed
in the Dictionary of Occupational Titles (“DOT”) (e.g., merchandise marker, routing
clerk, photocopy machine operator), which the VE had testified that a hypothetical person
with Plaintiff’s RFC and vocational factors (age, education, work experience) could
perform and that were available in significant numbers in the national economy.
Accordingly, the ALJ found that Plaintiff was not disabled under the Act. On June 19,
2019, the Appeals Council denied Plaintiff’s request for review. Thus, Plaintiff has
exhausted her administrative remedies, and the ALJ’s decision is the final decision of the
Commissioner for this Court’s review.
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Plaintiff contends that the ALJ failed to properly (1) evaluate her RFC and (2)
weigh the evidence concerning her mental impairments. Plaintiff asks the Court to
reverse and remand the decision for an award of benefits or further evaluation. The
Commissioner maintains that the record contains substantial evidence to support the
The ALJ’s Decision (Tr. 22-33)
The ALJ found that Plaintiff has the following severe impairments: post-traumatic
stress disorder, major depressive disorder, general anxiety disorder, bipolar disorder,
obesity, degenerative disc disease, and a history of left kidney nephrectomy. 1 Tr. 24.
However, the ALJ found that none of these impairments, alone or in combination, met or
medically equaled the severity of impairments listed in the Commissioner’s regulations.
Plaintiff does not challenge the ALJ’s findings with respect to her physical conditions.
With respect to Plaintiff’s mental impairments centrally at issue here, the ALJ determined
that those impairments, considered singly and in combination, did not meet or medically
equal the criteria of listings 12.04 (depressive, bipolar, and related disorders), 12.06
(anxiety and obsessive compulsive disorders), and 12.15 (trauma- and stressor-related
disorders). These conditions are not deemed disabling unless functional limitations
known as “paragraph B criteria” are present, meaning a claimant has one extreme or two
marked functional limitations in her ability to: (1) understand, remember, or apply
The ALJ also noted several alleged impairments that were either non-severe or not
medically determinable from the evidence: obstructive sleep apnea, gastroesophageal
reflux disease, irritable bowel syndrome, hyperlipidemia, migraine headaches, asthma,
fibromyalgia, and carpal tunnel syndrome. Tr. 24-25.
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information; (2) interact with others; (3) concentrate, persist, or maintain pace; and (4)
adapt or manage oneself. 20 C.F.R. § 404.1520a(c)(3). 2
In applying “paragraph B” criteria here, the ALJ found that Plaintiff had only: (1)
a mild limitation in understanding, remembering, or applying information; (2) a moderate
limitation in interacting with others; (3) a moderate limitation in concentrating,
persisting, and maintaining pace; and (4) a moderate limitation in adapting and managing
herself. Tr. 26-27. In arriving at these findings, the ALJ reasoned as follows. First,
although Plaintiff claimed some difficulty remembering, following instructions, and
completing tasks, the medical evidence and her testimony demonstrated that she was able
to provide her medical information, describe her previous work history, follow medical
directives, prepare meals, shop online, and play games. Second, although Plaintiff
claimed difficulty in socializing, the evidence demonstrated that she was cooperative and
calm when interacting with her providers and interacted appropriately with authority.
Third, though Plaintiff claimed difficulty concentrating, the evidence demonstrated that
she could use the internet, manage her medical treatment, prepare meals, watch
television, and play games; and medical records did not reflect any testing to assess
attention and concentration. Fourth, though Plaintiff claimed difficulty handling stress,
These criteria became effective on January 17, 2017 and apply to claims that were
pending at that time. See Revised Medical Criteria for Evaluating Mental Disorders, 81
Fed. Reg. 66,137, 66,138. (Sept. 26, 2016). Plaintiff filed her application on January 9,
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managing her personal care, and regulating her mood, her medical records reflected good
hygiene and improvements in mood and affect. Thus, the ALJ concluded that paragraph
B criteria were not satisfied.
When paragraph B criteria are not satisfied, the relevant listings also have
additional functional criteria known as “paragraph C criteria,” used to evaluate “serious
and persistent” mental disorders. Paragraph C criteria require a medically documented
history of the existence of the disorder for at least two years, with evidence of (1) medical
treatment, mental health therapy, psychosocial support, or a highly structured setting that
is ongoing and that diminishes the symptoms and signs of the claimant’s disorder and (2)
marginal adjustment, meaning a minimal capacity to adapt to changes in one’s
environment or to demands that are not already part of one’s daily life. Here, the ALJ
observed that the evidence failed to establish the presence of paragraph C criteria.
After careful consideration of the entire record, the ALJ found that Plaintiff has
the RFC to perform light work, with the limitations described above. In determining
Plaintiff’s RFC and limitations, the ALJ summarized the following evidence as pertinent
to Plaintiff’s mental impairments.
Plaintiff’s self-reporting and testimony reflects that she stopped working in late
September 2016 due to trauma over the death of her son. She has difficulty
concentrating, is easily distracted, and has no short-term memory. She forgets to eat,
cook, bathe, or care for herself. She forgets where she is going. She has to set reminders
to take her medications and feed the dog. She has trouble sleeping. She has difficulty
getting out of bed. She has panic attacks.
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The ALJ found that Plaintiff’s medically determinable impairments could
reasonably expected to cause her alleged symptoms but that Plaintiff’s statements about
the intensity, persistence, and limiting effects of those symptoms were not consistent with
the medical evidence and other evidence in the record.
Specifically, the ALJ noted that Plaintiff underwent counseling in the months after
her son’s death. (Referring to treatment records from Mark Hunyar, MSW, LCSW, at Tr.
352-396.) She was diagnosed with moderate bipolar disorder and PTSD. She initially
presented disheveled and depressed but improved over time with counseling and
medications. Her affect improved from constricted to appropriate, and her cognitive
function improved from disorganized and preoccupied to oriented and alert. Throughout
treatment, she remained interactive and functionally intact, with normal markers for
judgment and insight, memory, thought content, and motor activity. In addition to
psychotherapy, the ALJ noted that Plaintiff was prescribed antipsychotic, antidepressant,
and antianxiety medications.
Additionally, the ALJ reviewed treatment records from Plaintiff’s treating
psychiatrist, Dr. Ahmad Ardekani, for the period from April 2017 through August 2018.
The ALJ noted that Plaintiff was diagnosed with, and prescribed medications for,
recurrent, moderate major depressive disorder, panic disorder, PTSD, and generalized
anxiety disorder. However, Plaintiff consistently reported good mood; no anxiety or
panic attacks; good sleep, appetite, and energy; focused attention and concentration; and
no hallucinations, paranoia, or suicidal thoughts. Additionally, she had a calm demeanor,
good eye contact, and cohesive thought. Though the ALJ acknowledged that Plaintiff
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occasionally reported nightmares, anxiety, 3 panic attacks or paranoia, and
decompensation when off her medication, the ALJ concluded that the treatment records
overall showed improvement over time with adjustments in medication. Tr. 30.
The ALJ also reviewed a psychological evaluation conducted by Dr. Kimberly
Buffkins, reflecting that Plaintiff was depressed with flat affect but was cooperative and
calm, made good eye contact, had normal thought process and content, and exhibited
normal grooming and hygiene. Tr. 297. Dr. Buffkins opined that Plaintiff had a
moderate limitation in understanding, remembering, and applying information; a mild
limitation in social interaction; a moderate limitation in her ability to focus and remain on
task; and a mild limitation in regulating her emotions and controlling behavior. The ALJ
gave Dr. Buffkins’s opinion partial weight, reasoning that the record as a whole
supported only a mild (rather than moderate) limitation in Plaintiff’s ability to
understand, remember, and apply information.
Additionally, the ALJ reviewed the opinion of state agency psychologist Dr.
Martin Isenberg, who reviewed Plaintiff’s medical records in May 2017 and concluded
that Plaintiff had a mild limitation in understanding, remembering, and applying
information; a moderate limitation in interacting with others; a moderate limitation in
concentration, persistence, and pace; and a moderate limitation in adapting and managing
The ALJ’s first observation noting no anxiety or panic attacks is consistent with
the subjective sections of each consultation record. Tr. 327-351. The ALJ’s subsequent
acknowledgement of occasional panic and anxiety corresponds with the treatment plan
sections from two visits, as an explanation for adjusting Plaintiff’s medication. Tr. 334,
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herself. Tr. 62. The ALJ found Dr. Isenberg’s opinion consistent with the overall record
and gave it opinion great weight. Tr. 30.
Finally, the ALJ reviewed a medical source statement (“MSS”) submitted by
Plaintiff’s treating psychiatrist, Dr. Ardekani, in August 2018. Tr. 318-326. As
discussed further below, Plaintiff disputes the ALJ’s interpretation of Dr. Ardekani’s
check markings on the MSS form. According to the ALJ’s written decision, Dr.
Ardekani, like Dr. Isenberg, opined that Plaintiff had mild limitations in understanding,
remembering, and applying information and moderate limitations in the other three
categories. Tr. 30. The ALJ gave great weight to this portion of Dr. Ardekani’s opinion
as it was consistent with the record as a whole. However, the ALJ gave no weight to the
doctor’s further opinions suggesting that Plaintiff was unable to work, because those
opinions were internally inconsistent with his functional limitation opinions and also
inconsistent with his other treatment records (reflecting mostly normal markers) and the
greater record as a whole. Tr. 30. Similarly, the ALJ gave no weight to Dr. Ardekani’s
opinion assigning Plaintiff a global assessment of functioning of 40 (indicating a major
impairment in mood, judgment, thinking, or social interaction), reasoning that GAF
scores are generally of little value in assessing the severity and limiting effects of a
claimant’s mental impairments. Tr. 31.
Based on the foregoing, the ALJ ultimately concluded that an RFC of light work,
with the restrictions previously described, was consistent with the evidence. The ALJ
then referred to the VE’s testimony that, given Plaintiff’s age, education, work
experience, and RFC, Plaintiff would be able to perform occupations such as
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merchandise marker, routing clerk, and photocopy machine operator, of which there are
significant numbers in the national economy. Tr. 32. Accordingly, the ALJ found that
Plaintiff is not disabled under the Act.
In her brief before this Court, Plaintiff argues that (1) the ALJ erred by failing to
include moderate limitations in concentration, persistence, and pace, in determining
Plaintiff’s RFC and (2) the ALJ misread Dr. Ardenanki’s MSS ratings downward and
therefore did not give adequate weight to his opinion. In response, the Commissioner
maintains that (1) the ALJ’s RFC determination did include sufficient restrictions to
accommodate Plaintiff’s moderate limitations and (2) even if the ALJ did misread Dr.
Ardekani’s ratings, the error was harmless in that an alternate reading is even more
contrary to the overall record and thus would not have affected the outcome.
To be entitled to benefits, a claimant must demonstrate an inability to engage in
substantial gainful activity which exists in the national economy, by reason of a
medically determinable impairment which has lasted or can be expected to last for not
less than 12 months. 42 U.S.C. § 423(d)(1)(A). The Commissioner has promulgated
regulations, found at 20 C.F.R. § 404.1520, establishing a five-step sequential evaluation
process to determine disability. The Commissioner begins by deciding whether the
claimant is engaged in substantial gainful activity. If not, the Commissioner decides
whether the claimant has a “severe” impairment or combination of impairments. A
severe impairment is one which significantly limits a person’s physical or mental ability
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to do basic work activities. 20 C.F.R. § 404.1520(c). A special technique is used to
determine the severity of mental disorders. This technique calls for rating the claimant’s
degree of limitations in four areas of functioning: understanding, remembering, or
applying information; interacting with others; concentration, persistence, or pace; and
adapting or managing oneself. 20 C.F.R. § 404.1520a(c)(3).
If the impairment or combination of impairments is severe and meets the duration
requirement, the Commissioner determines at step three whether the claimant’s
impairment meets or is medically equal to one of the deemed-disabling impairments
listed in the Commissioner’s regulations. If not, the Commissioner asks at step four
whether the claimant has the RFC to perform his past relevant work. If the claimant
cannot perform her past relevant work, the burden of proof shifts at step five to the
Commissioner to demonstrate that the claimant retains the RFC to perform work that is
available in the national economy and that is consistent with the claimant’s vocational
factors – age, education, and work experience. See, e.g., Halverson v. Astrue, 600 F.3d
922, 929 (8th Cir. 2010). When a claimant cannot perform the full range of work in a
particular category of work (medium, light, and sedentary) listed in the regulations, the
ALJ must produce testimony by a VE (or other similar evidence) to meet the step-five
burden. See Baker v. Barnhart, 457 F.3d 882, 894 (8th Cir. 2006).
Standard of Review
In reviewing the denial of Social Security disability benefits, a court must review
the entire administrative record to determine whether the ALJ’s findings are supported by
substantial evidence on the record as a whole. Johnson v. Astrue, 628 F.3d 991, 992 (8th
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Cir. 2011). The court “may not reverse merely because substantial evidence would
support a contrary outcome. Substantial evidence is that which a reasonable mind might
accept as adequate to support a conclusion.” Id. (citations omitted). A reviewing court
“must consider evidence that both supports and detracts from the ALJ’s decision. If, after
review, [the court finds] it possible to draw two inconsistent positions from the evidence
and one of those positions represents the Commissioner’s findings, [the court] must
affirm the decision of the Commissioner.” Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir.
2016) (citations omitted). Put another way, a court should “disturb the ALJ’s decision
only if it falls outside the available zone of choice.” Papesh v. Colvin, 786 F.3d 1126,
1131 (8th Cir. 2015) (citation omitted). A decision does not fall outside that zone simply
because the reviewing court might have reached a different conclusion had it been the
finder of fact in the first instance. Id. The Court “defer[s] heavily to the findings and
conclusions of the Social Security Administration.” Wright v. Colvin, 789 F.3d 847, 852
(8th Cir. 2015).
In her first point, Plaintiff asserts that the ALJ erred by failing to account for a
moderate limitation in concentration, persistence, and pace (the third category of
paragraph B criteria) when determining Plaintiff’s RFC. The Commissioner counters that
the restriction to “simple, routine tasks” sufficiently accommodates Plaintiff’s
impairment in this category. 4 As relevant to this issue, the record reflects that the
The Commissioner also relies on the restriction “with only few changes in work
setting” at the end of the RFC paragraph. But this restriction, both sequentially in the
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hypothetical posed to the VE described a person of Plaintiff’s age, education, and work
history; able to perform light work, with certain physical limitations not in dispute here;
limited to simple, routine tasks; with only occasional interactions with supervisors and
co-workers and the public; with only few changes in work setting. Tr. 54. In response to
this hypothetical, the VE testified that the person would be precluded from performing
Plaintiff’s past work but would be able to work in certain light, unskilled jobs such as
merchandise marker, routing clerk, and photocopy machine operator. Tr. 54-55. Upon
further questioning, the VE testified that being off-task 15% of the time or being absent
three days per month would preclude employment. Tr. 55.
In support of Plaintiff’s position that this record is insufficient to support her RFC,
Plaintiff relies on Newton v. Chater, 92 F.3d 688 (8th Cir. 1996). In that case, the ALJ
posed two hypotheticals containing a restriction to “simple jobs,” differentiated only by
the claimant’s ability to stay sober, but not otherwise accommodating the claimant’s
moderate limitations in concentration. In response to the hypothetical including a
drinking problem, the VE testified that a person’s deficiencies with respect to basic work
habits (e.g., reporting for work) would cause problems on an ongoing daily basis
regardless of the job requirements. Id. at 691, 695. However, the ALJ relied on the
alternative, sobriety hypothetical to find that the claimant was not disabled. On appeal,
paragraph as well as logically in the context, more readily corresponds to Plaintiff’s
limitation in adaptability (the fourth category of paragraph B). The Court is not
persuaded that this restriction was intended to accommodate Plaintiff’s concentration (the
second category) and does not find it necessary to the analysis.
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the Eighth Circuit held that the claimant’s deficiencies in concentration should have been
specified in the hypothetical, absent which the VE’s testimony did not constitute
sufficient evidence to support the Commissioner’s decision. Id. at 695.
Similarly, Plaintiff relies on Demoreuille v. Colvin, where the court concluded that
a hypothetical describing work “limited to simple, routine, and repetitive tasks” did not
adequately capture the nature of the claimant’s moderate limitations in concentration,
persistence, and pace. 15-0528-CV-W-ODS-SSA, 2016 WL 4129117, at *2, *5 (W.D.
Mo. Aug. 3, 2016). Based on the foregoing, Plaintiff asserts that the ALJ committed
reversible error by failing to articulate more specific restrictions to address Plaintiff’s
moderate limitations in concentration, persistence, and pace, in determining Plaintiff’s
RFC. Plaintiff further suggests that the ALJ’s decision is not supported by substantial
evidence insofar as the VE’s testimony was based on an incomplete hypothetical.
In response, the Commissioner relies on Howard v. Massanari, 255 F.3d 577 (8th
Cir. 2001), and Chismarich v. Berryhill, 888 F.3d 978 (8th Cir. 2018). In Howard, the
ALJ’s hypothetical provided for simple, routine, repetitive work, without further detail.
The Eighth Circuit deemed this sufficient to account for the claimant’s deficiencies in
concentration, persistence, or pace. 255 F.3d at 582 (involving a claimant with
questionable literacy and borderline intellectual functioning). In Chismarich, the Eighth
Circuit deemed an RFC prescribing “work at a normal pace without production quotas”
sufficient to account for the claimant’s moderate limitations in concentration, persistence,
and pace. 888 F.3d at 980 (involving impairments from bipolar disorder, addiction,
learning disabilities, and ADHD).
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The Court finds additional guidance in a recent, squarely on-point ruling from this
Court (J. Limbaugh, Jr.) in Gonzalez v. Saul, 4:19-CV-01429-SNLJ, 2020 WL 1873410
(E.D. Mo. April 15, 2020). There, as here, the claimant suffered from depression and
anxiety causing moderate limitations in concentration, persistence, and pace. The ALJ
arrived at an RFC prescribing light work restricted to “simple and routine tasks
throughout the workday.” Id. at *2. Relying on Newton, the claimant argued that this
RFC failed to adequately capture her limitations in concentration, persistence, and pace.
The Court disagreed, reasoning that Newton’s holding was limited to the narrow issue of
that claimant’s habit-based problems (due to his alcoholism) as opposed to skills-based
problems. Id. at *3. The court further reasoned that “cases since Newton demonstrate its
limited reach.” Id. at *4 (discussing Howard, 255 F.3d at 582 (cited above), and Scott v.
Berryhill, 855 F.3d 853, 858 (8th Cir. 2017) (upholding an RFC limiting the complexity
of tasks to “those that can be learned and performed by rote” as adequately
accommodating the claimant’s limited concentration)). Also in Gonzalez, as here, the
ALJ questioned the VE about a person’s ability to stay on task and maintain attendance,
which the VE responded would affect the person’s ability to maintain employment.
There, as here, the ALJ declined to incorporate those additional limitations into the RFC
in light of the overall record. Id. at *4.
Indeed, district courts in Missouri have consistently concluded that an RFC
restriction of “simple and routine” tasks adequately accounts for a claimant’s moderate
limitations in concentration, persistence, and pace. See, e.g., Salkic v. Saul, 4:18CV1901
HEA, 2020 WL 805868, at *3 (E.D. Mo. Feb. 18, 2020) (collecting cases from the past
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five years). Plaintiff’s argument to the contrary is unavailing.
Weight of the Evidence
Next, Plaintiff asserts that the ALJ failed to give adequate weight to the treating
source opinion offered by her psychiatrist, Dr. Ardekani, and that, as a result, the ALJ’s
decision is not supported by substantial evidence.
“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 v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016). However, “there is no
requirement that an RFC finding be supported by a specific medical opinion.” Id. The
ALJ is not required to accept every opinion by an examiner but must weigh all the
evidence in the record. Mabry v. Colvin, 815 F.3d 386, 391 (8th Cir. 2016). “It is the
ALJ’s function to resolve conflicts among the opinions of various treating and examining
physicians.” Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012).
Under the applicable regulation, 5 the opinion of a treating physician is “normally
For claims filed before March 27, 2017, which includes Plaintiff’s, the regulations
provide that if “a treating source’s medical opinion on the issue(s) of the nature and
severity of your impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in your case record, [the Social Security Administration] will give it controlling
weight,” and further provide that the Administration “will give good reasons in our notice
of determination or decision for the weight we give your treating source’s medical
opinion.” 20 C.F.R. § 404.1527.
For claims filed on or after March 27, 2017, the regulations have been amended to
eliminate the treating physician rule. The new regulations provide that the Social
Security Administration “will not defer or give any specific evidentiary weight, including
controlling weight, to any medical opinion(s) or prior administrative medical finding(s),
including those from your medical sources,” but rather, the Administration will consider
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entitled to great weight.” Thomas v. Berryhill, 881 F.3d 672, 675 (8th Cir. 2018).
“However, the Commissioner may discount or even disregard the opinion of a treating
physician where other medical assessments are supported by better or more thorough
medical evidence,” and the Commissioner “may also assign little weight to a treating
physician’s opinion when it is either internally inconsistent or conclusory.” Id.
Centrally, Plaintiff signals – and the Commissioner concedes – that the ALJ
misread the levels of degree of impairment check-marked in the section of Dr. Ardekani’s
MSS addressing paragraph B criteria. To wit, Dr. Ardekani indicated a moderate
impairment in the first category (understanding, remembering, or applying information)
and marked impairments in the remaining three categories (social interaction;
concentration, persistence, and pace; and adapting or managing oneself). However, the
ALJ read the marks as though shifted one column to the left, thus downgrading to only a
mild impairment in the first category and moderate impairments in the remaining
categories. The ALJ gave great weight to this section of Dr. Ardekani’s opinion (her
misreading of it) because she understood it to be consistent with Dr. Isenberg’s opinion
and the record as a whole. Tr. 30. Plaintiff argues that the ALJ’s misreading of the
paragraph B section of Dr. Ardekani’s opinion changed the outcome of the case and
therefore must be reversed.
In response, the Commissioner maintains that the error was harmless and clearly
did not affect the outcome, given the totality of the record. The Commissioner notes that
all medical opinions according to several enumerated factors, the “most important” being
supportability and consistency. 20 C.F.R. § 404.1520c.
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the ALJ gave no weight to other portions of the opinion indicating that Plaintiff was
unable to work and had no ability to function, because those opinions were inconsistent
with the record, including Dr. Ardekani’s own treatment notes showing normal markers.
The Commissioner submits that the ALJ gave weight to her own misreading of Dr.
Ardekani’s paragraph B opinion only because mild and moderate degrees of limitation
aligned with the overall record. In other words, the ALJ’s overall findings, based on
multiple sources of evidence in the record, demonstrate that she would have rejected Dr.
Ardekani’s actual paragraph B opinions indicating higher degrees of impairments. The
Court agrees with the Commissioner’s position.
To show that an error was not harmless, a claimant must provide some indication
that the ALJ would have decided differently but for the error. Byes v. Astrue, 687 F.3d
913, 917 (8th Cir. 2012) (reasoning that application of the correct gridlines would not
have resulted in an award of benefits). See also, Casey v. Astrue, 503 F.3d 687, 695 (8th
Cir. 2007) (deeming the AJL’s misreading of a non-treating examiner’s opinion “without
consequence”); Reed v. Saul, 2:18-CV-00066-NCC, 2019 WL 4576320, at *6 (E.D. Mo.
Sept. 20, 2019) (finding harmless error where ALJ mischaracterized the VE’s testimony
about the claimant’s last job); and Suter v. Berryhill, 4:16-CV-00457-NKL, 2017 WL
1476156, at *14 (W.D. Mo. Apr. 25, 2017) (finding harmless error where ALJ relied on
erroneous testimony by a VE).
In Casey, the ALJ misread the doctor’s opinion as to the claimant’s ability to
work. The Eighth Circuit deemed the error harmless because the ALJ correctly read the
opinion as to the claimant’s functional limitations, and the overall record supported the
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decision. Synthesizing 20 C.F.R. § 404.1527, the Circuit Court noted that “the value of a
medical source’s opinion is found in judgments about the nature and severity of a
claimant’s impairments; a medical source’s conclusions that a claimant is disabled or
unable to work are not given any special significance because such dispositive findings
are reserved to the ALJ.” Casey, 503 F.3d at 695 (citing 20 C.F.R. § 404.1527(a)(2) and
(e)(1) and (3)).
To be sure, the case at bar presents the opposite scenario, as the ALJ misread Dr.
Ardekani’s opinion of Plaintiff’s functional impairments. While the Court acknowledges
that this is a valuable section of the opinion, the Court still does not believe that the
ALJ’s misreading affected her ultimate decision, because the ALJ gave no weight
whatsoever to other sections of the opinion suggesting such severe limitations, reasoning
that those opinions were inconsistent with Dr. Ardekani’s own treatment notes and other
evidence in the record. Established precedent applying § 404.1527 accords weight to a
treating source opinion only when the opinion is consistent with the record as a whole.
Thomas, 881 F.3d at 675. Such is not the case here, as Dr. Ardekani’s opinion signaling
marked limitations in three paragraph B categories is not borne out by the record. As
previously noted, Dr. Isenberg found only a mild limitation in the first paragraph B
criterion and only moderate limitations in the other three. 6 Tr. 62. Dr. Buffkins found
only mild limitations in the second and fourth criteria and only moderate limitations in
the first and third. Tr. 300-301. Dr. Ardekani’s own treatment notes reflect normal
In fact, Plaintiff directly relies on Dr. Isenberg’s opinion to support her first point
of error here. ECF No. 14 at p. 5.
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markers throughout the treatment period (e.g., no anxiety or panic attacks, focused
attention and concentration, no paranoia, calm demeanor, good eye contact, cohesive
thought) and improvements with medication. Tr. 327-351. These elements of the record
directly contradict Dr. Ardekani’s opinion indicating marked degrees of limitations.
In support of her claim that she does have marked limitations, Plaintiff highlights
Mr. Hunyar’s notes from counseling sessions following her son’s death (October 2016 to
February 2017) as well as Dr. Ardekani’s notes documenting her diagnoses and various
medications (August 2017 to July 2018). 7 But, under this Court’s standard of review, the
Court defers heavily to the agency’s findings and conclusions and will uphold the denial
of benefits if the ALJ’s decision is supported by substantial evidence in the record as a
whole. Wright, 789 F.3d at 852. Substantial evidence is less than a preponderance but
enough that a reasonable mind might accept it as adequate to support a decision. Id.
While this Court must take into account “evidence that both supports and detracts from
the ALJ’s decision, … as long as substantial evidence in the record supports the
Commissioner’s decision, [the Court] may not reverse it because substantial evidence
also exists in the record that would have supported a contrary outcome, or because [the
Court] would have decided the case differently.” Andrews v. Colvin, 791 F.3d 923, 928
(8th Cir. 2015).
Mindful of these principles, the Court finds substantial evidence in the record to
Plaintiff also refers to Dr. Gahn’s records of her treatment for low back pain. But
these records do not inform the Court’s analysis, as Plaintiff does not challenge the ALJ’s
determination that she is not disabled by physical impairments.
Case: 4:19-cv-02152-AGF Doc. #: 20 Filed: 11/16/20 Page: 20 of 21 PageID #: 518
support the ALJ’s determination. For example, as stated above, Dr. Isenberg found only
a mild limitation in the first paragraph B criterion and only moderate limitations in the
other three (Tr. 62), while Dr. Buffkins found only mild limitations in the second and
fourth criteria and only moderate limitations in the first and third (Tr. 300-301). Dr.
Ardekani’s treatment notes reflect normal concentration and cohesive thought. Tr. 327351. Mr. Hunyar’s therapy notes reflect progress over time, with Plaintiff’s cognitive
functioning improving from “disorganized and preoccupied” to “oriented and alert,” her
affect improving from “constricted” to “appropriate,” and her mood improving from
“depressed” to “euthymic.” Throughout treatment, she remained interactive and
functionally intact, with normal markers for judgment and insight, memory, thought
content, and motor activity. Tr. 352-397. Given this evidence, the Court cannot say that
the ALJ’s misreading of Dr. Ardekani’s paragraph B opinions affected the outcome, or
that a correct reading of those opinions might have tipped the weight of evidence in
Plaintiff’s favor. The ALJ’s full decision leaves no room for such speculation. The
Court finds substantial evidence in the record supporting the ALJ’s ultimate
determination that Plaintiff is not disabled under the Act.
In sum, ample precedent confirms that the ALJ adequately accommodated
Plaintiff’s moderate limitations in concentration, persistence, and pace with an RCF
restriction to simple, routine tasks. The ALJ did not err in relying on the VE’s opinion
using this restriction. Further, the ALJ’s misreading of Dr. Ardekani’s opinion on
Plaintiff’s functional limitations was harmless error because it could not have changed
Case: 4:19-cv-02152-AGF Doc. #: 20 Filed: 11/16/20 Page: 21 of 21 PageID #: 519
the outcome here. The ALJ gave no weight to Dr. Ardekani’s other opinions suggesting
higher degrees of impairment, and the record as a whole firmly supports the ALJ’s
finding of lower degrees.
When it is possible to draw different conclusions from the evidence and one
represents the Commissioner’s findings, this Court must affirm the decision. Chaney,
812 F.3d at 676. On the present record, the Court concludes that the ALJ’s decision was
within the available zone of choice.
IT IS HEREBY ORDERED that the decision of the Commissioner is
AFFIRMED. A separate Judgment shall accompany this Memorandum and Order.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 16th day of November 2020.
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