Gould v. Saul

Filing 33

MEMORANDUM AND ORDER: 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. Signed by Magistrate Judge Noelle C. Collins on September 16, 2022. (BRP)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KATIE GOULD,
Plaintiff,
v.
KILOLO KIJAKAZI, 1
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:21-CV-00179-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 Katie Gould (“Plaintiff”) for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.
Plaintiff has filed a brief in support of the Complaint (Doc. 25) and Defendant has filed a brief in
support of the Answer (Doc. 32). The parties have consented to the jurisdiction of the
undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. 9).
I. PROCEDURAL HISTORY
Plaintiff filed her application for DIB on March 6, 2019 (Tr. 159). Plaintiff was initially
denied on August 26, 2019, and she filed a Request for Hearing before an Administrative Law
Judge (“ALJ”) (Tr. 98-105). After a hearing, by decision dated June 29, 2020, the ALJ found
Plaintiff not disabled (Tr. 10-19). On December 15, 2020, the Appeals Council denied Plaintiff’s

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Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant
to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi shall be substituted for
former Commissioner Andrew Saul as the defendant in this suit. No further action need 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).

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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 last met the insured status requirements of the Social
Security Act on December 31, 2018, and did not engage in substantial gainful activity (“SGA”)
during the period from her alleged onset date of September 15, 2018, through her date last
insured of December 31, 2018 (Tr. 12). The ALJ found that Plaintiff had the severe impairments
of refractory seizures and Rubinstein-Taybi syndrome, 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. 12-13). After careful consideration of the entire record, the
ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to perform a full
range of work at all exertional levels but with the following non-exertional limitations (Tr. 13).
Plaintiff can never climb ladders, ropes, or scaffolds (id.). She can frequently perform gross and
fine manipulation (id.). She should avoid concentrated exposure to excessive vibration and
pulmonary irritants (id.). She should avoid all exposure to workplace hazards such as working
with sharp objects, operational control of moving machinery, and unprotected heights (id.). Her
work is limited to low-stress jobs defined as simple tasks with occasional decision-making and
minimal changes in work routine or setting (id.). The ALJ found that Plaintiff was unable to
perform any past relevant work but that there were jobs that existed in significant numbers in the
national economy Plaintiff could perform, including ticket taker, usher, and price marker (Tr. 1718). Thus, the ALJ concluded that Plaintiff was not under a disability at any time from
September 15, 2018, the alleged onset date, through December 31, 2018, the date last insured
(Tr. 18).

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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

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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).
It is not the job of the district court to re-weigh the evidence or review the factual record
de novo. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). 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,

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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.
IV. DISCUSSION
In her appeal of the Commissioner’s decision, Plaintiff raises four issues. First, Plaintiff
argues that the ALJ’s RFC determination is not supported by substantial evidence because the
ALJ did not include limitations in the RFC for when Plaintiff has a seizure (Doc. 25 at 3-6).
Plaintiff also argues that the objective medical evidence does not support the ALJ’s
determination of the frequency of Plaintiff’s seizures (id. at 4-6). Second, Plaintiff argues that
the ALJ exceeded his authority in inferring limitations from the objective medical findings (id. at
6-8). Specifically, Plaintiff argues that the ALJ inferred how her Rubinstein-Taybi syndrome
affects her ability to use her hands without any medical evidence to support the ALJ’s inference
(id.). Third, Plaintiff argues that the ALJ did not properly consider the medical opinion evidence
(id. at 8). Fourth, Plaintiff argues the ALJ failed to properly evaluate her subjective complaints
(id. at 8-13). The Court addresses each argument as follows and ultimately finds that the ALJ’s
decision is supported by substantial evidence and should be affirmed.
A. Substantial Evidence
In her appeal of the Commissioner’s decision, Plaintiff argues that the ALJ violated SSR
96-8p 2 by failing to create an RFC supported by substantial evidence (Doc. 25 at 3-6). Plaintiff
argues that the ALJ failed to include limitations to account for times when she has a seizure and

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Social Security Ruling 96-8p, 1996 WL 362207 (July 2, 1996) (“Policy Interpretation Ruling
Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims”).
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her postictal state, during which she cannot function, lasts several hours (id. at 4). Plaintiff
further argues that, although the ALJ concluded that the alleged frequency of seizures was not
supported by the evidence, the ALJ did not indicate the frequency of seizures that was supported
by medical evidence (id.). Plaintiff believes the ALJ was required to make a finding as to the
frequency or number of seizures he found to be credible or supported by evidence (id.). Plaintiff
finally argues that the ALJ erred in failing to obtain medical evidence that addresses Plaintiff’s
ability to function in the workplace (id. at 5-6). 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 consistent with the Regulations and case law.
The RFC is the most a claimant can still do in a work setting despite the claimant’s
physical or mental limitations. 20 C.F.R. § 404.1545(a)(1); Martise v. Astrue, 641 F.3d 909, 923
(8th Cir. 2011). An ALJ determines a claimant’s RFC based on all the relevant evidence,
including medical records, observations of treating physicians and others, and the claimant’s own
description of her limitations. Page, 484 F.3d at 1043; Anderson v. Shalala, 51 F.3d 777, 779
(8th Cir. 1995). Although the ALJ bears the primary responsibility for assessing a claimant’s
RFC based on all relevant evidence, a claimant’s RFC is a medical question. Lauer v. Apfel, 245
F.3d 700, 704 (8th Cir. 2000); Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000); Hutsell v.
Massanari, 259 F.3d 707, 712 (8th Cir. 2001). Because it is a medical question, an ALJ’s RFC
assessment 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); Cox, 495 F.3d at 619. An
ALJ may not draw upon his or her own inferences from medical reports. Nevland v. Apfel, 204
F.3d 853, 858 (8th Cir. 2000).

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Here, the ALJ determined that Plaintiff had the RFC to perform a full range of work at all
exertional levels but with the following non-exertional limitations (Tr. 13). Plaintiff can never
climb ladders, ropes, or scaffolds (id.). She can frequently perform gross and fine manipulation
(id.). She should avoid concentrated exposure to excessive vibration and pulmonary irritants
(id.). She should avoid all exposure to workplace hazards such as working with sharp objects,
operational control of moving machinery, and unprotected heights (id.). Her work is limited to
low-stress jobs defined as simple tasks with occasional decision-making and minimal changes in
work routine or setting (id.).
In formulating the RFC, the ALJ considered Plaintiff’s reports and testimony regarding
her alleged disability (Tr. 14-15). Plaintiff reported her symptoms as follows. Her epilepsy
causes passing out at times, tingling in her fingers and toes, and dizziness (Tr. 179). She cannot
drive and has difficulty thinking quickly, along with memory loss (id.). She performs household
chores and likes reading and drawing, but has difficulty concentrating on those activities (Tr.
181-83). She gets along with others but has difficulty following directions due to loss of
concentration (Tr. 182-84). The deformities in her fingers make it hard to type and she can only
pay attention for a couple of minutes (Tr. 179, 184). She cannot handle stress or changes in
routine (Tr. 185).
Plaintiff gave the following testimony regarding her symptoms. She has seizures at night
(Tr. 40). Her seizure calendar identifies good days, days with seizures, and days with tingling or
numbness (Tr. 41). On days when she had tingling or numbness, she had to leave work because
it would affect her work (id.). Others can often tell when she is having a seizure before she does
(Tr. 42). Her words get “slurry” and her hands shake (id.). Although a seizure only lasts for a
minute, afterwards, she feels very tired and confused for four to five hours (Tr. 43). Her memory

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and concentration are not great, and she needs reminders for chores (Tr. 45). Some days she can
read for a couple of hours but on other days, she cannot concentrate (Tr. 46). She testified she
had about 47 seizure episodes through five months in 2020 (Tr. 49).
The ALJ then considered the medical evidence, finding that it did not support Plaintiff’s
statements about the frequency of seizures or seizure activities, or her alleged difficulties with
memory and concentration (Tr. 15). The Court notes the medical record in this case is limited.
It contains a report from Dr. Daniel Gwartney, M.D. (Tr. 87-91), notes from two visits with
internist Dr. Joseph Anstey, M.D. (Tr. 256-57), three lab tests (Tr. 258-63, 310-14), notes from
three visits with neurologist Dr. Brian Day, M.D. (Tr. 267-306), and notes from a visit with
otology specialist Dr. James Benecke, M.D. (Tr. 317-24). The medical record contains no
evidence from the relevant adjudicated period of September 2018 to December 2018.
The ALJ first considered the notes from Dr. Day, Plaintiff’s neurologist, from August
2018 (Tr. 15). Dr. Day noted Plaintiff had staring spells with unresponsiveness, arm jerking, loss
of awareness and memory, and postictal confusion (Tr. 267). He noted 0-2 episodes of
unresponsiveness between April and August 2018, and 0-2 episodes of reported heavy breathing,
loss of consciousness, confusion, and fatigue during that time period (id.). Plaintiff reported to
Dr. Day possible nocturnal seizures with lip-smacking and poor sleep (id.). Dr. Day reported
Plaintiff declined further workup for surgery or other possible treatments due to financial and
insurance issues (Tr. 268). He also noted Plaintiff had broad thumbs and multiple finger
contractures due to her Rubinstein-Taybi syndrome (Tr. 269-70). Plaintiff was alert, awake, and
fully oriented, but had restricted speech with pauses, especially when anxious (Tr. 272). She
followed commands with normal attention (id.). Her normal muscle tone and strength was 5/5,
with no tremor, bradykinesia, or myoclonus (id.). Dr. Day noted Plaintiff’s fine finger

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movements were small and slow with contractures in the hands, and she had normal sensation to
light touch (id.). Her finger to nose testing and gait were normal (id.). Dr. Day adjusted her
medications and advised her on seizure precautions (Tr. 273).
The ALJ then noted that there was no medical evidence between the alleged onset date
and the date last insured, and that the remainder of the medical evidence post-dates the date last
insured (Tr. 16). The ALJ took into consideration Plaintiff’s 2019 seizure calendar (id.). In the
two months after her date last insured (December 31, 2018), Plaintiff documented no seizures,
and eight days of numbness and tingling (Tr. 244-54). Next, the ALJ considered the medical
opinions and prior administrative medical findings (Tr. 16). Dr. Gwartney offered opinions in a
prior administrative medical finding (Tr. 88-91). He believed Plaintiff could perform work at a
light exertional level (id.). He found Plaintiff could never climb ladders, ropes, or scaffolds, and
should avoid all exposure to hazards (id.). The ALJ did not find his opinions persuasive because
he did not believe there was evidence to support Dr. Gwartney’s exertional limitations (Tr. 16).
The ALJ stated Plaintiff has full strength and sensation, normal gait, normal finger to nose
testing, and no sensory deficits (id.). This is supported by Dr. Day’s notes from Plaintiff’s
August 2018 visit, the only evidence close to the relevant adjudicated period of September 2018
to December 2018 (Tr. 267-73). The ALJ also noted that the evidence does support some
postural limitations for safety, as well as manipulative limitations due to the contractures of the
hands and slowed finger movements (Tr. 16). This is also supported by Dr. Day’s treatment
notes (Tr. 267-73).
The ALJ next considered Dr. Day’s recommended seizure precautions listed in his
treatment records (Tr. 16). Dr. Day did not provide a formal opinion for the ALJ’s
consideration. His treatment notes state Plaintiff should not drive, operate heavy machinery,

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swim alone, take baths, climb ladders, work at heights, or cook over an open flame (Tr. 273).
The ALJ found Dr. Day’s opinion persuasive and included his recommended limitations as they
relate to Plaintiff’s work activities in the RFC (Tr. 16).
As set forth above, the RFC is supported by substantial evidence. The ALJ accounted for
the limitations in Dr. Day’s treatment notes and Dr. Gwartney’s opinion, except the exertional
limitations, which had no support in the medical evidence. The medical record in this case is
limited with no evidence from the adjudicated period, and very little from the months before or
after.
Plaintiff argues that the ALJ failed to include limitations in the RFC to account for times
when she has a seizure and her postictal state, during which she cannot function, lasts several
hours (Doc. 25 at 4). However, there is no medical evidence to support Plaintiff’s assertions she
is unable to function for four to five hours after a seizure so as to include it in the RFC. As the
ALJ noted, the medical record contains no evidence of a seizure observed by any medical
professionals (Tr. 16). Dr. Day’s treatment notes do not reference prolonged periods wherein
Plaintiff is unable to work or function due to a seizure (Tr. 267-73). Dr. Day also noted Plaintiff
only reported 0-2 episodes of unresponsiveness and 0-2 episodes of loss of consciousness over a
five-month period (Tr. 267). While Plaintiff herself reported several more incidents of tingling
and numbness in her seizure calendar, there is no evidence in the medical record to support that
these incidents affect her ability to function and require a specific limitation. It is Plaintiff’s
burden to establish her RFC, Eichelberger, 390 F.3d at 591, and she has not done so as it relates
to her need for absences or unscheduled breaks.
Plaintiff further argues that, although the ALJ discounted her reported frequency of
seizures, the ALJ did not indicate the frequency of seizures that was supported by the medical

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evidence (Doc. 25 at 4). Plaintiff is incorrect. The ALJ referenced Dr. Day’s notes more than
once, which mentioned the frequency of seizures, and specifically noted Plaintiff reported 0-2
episodes of unresponsiveness and 0-2 episodes of loss of consciousness, as well as “possible”
nighttime seizures (Tr. 16).
Plaintiff finally argues the ALJ erred in failing to obtain medical evidence that addresses
her ability to function in the workplace, specifically, that he failed to question her treating
physicians or the consultative examiner about the frequency, severity or controllability of her
seizures, or whether they limited her ability to work (Doc. 25 at 5-6). Plaintiff devotes only three
sentences to this argument, citing Smith v. Barnhart, 435 F.3d 926 (8th Cir. 2006) (Doc. 25 at 56). Smith is inapposite. There, the court had before it evidence that, only five days before the
ALJ's decision, the plaintiff’s treating neurologist noted more intense seizures, diagnosed the
plaintiff with uncontrolled seizure disorder, and increased her Dilantin dosage. 435 F.3d at 930.
There is no similar indication in this case that the record was underdeveloped as to the severity
of Plaintiff’s seizures. Moreover, the Court notes that it is Plaintiff’s responsibility to provide
medical evidence to support her allegations regarding the severity of her seizures. Kirby v.
Astrue, 500 F.3d 705, 707 (8th Cir. 2007). The Court finds that the ALJ’s RFC is supported by
substantial evidence.
B. Limitations in the RFC
Plaintiff argues that the ALJ exceeded his authority in inferring limitations from the
objective medical findings (Doc. 25 at 6-8). According to Plaintiff, there is no medical opinion
on how her Rubinstein-Taybi syndrome affects her ability to use her hands for work-related
activities (id. at 6). Therefore, Plaintiff believes the ALJ improperly inferred a limitation without
medical evidence (id. at 6-7). Additionally, Plaintiff asserts that the ALJ did not explain how the

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evidence supports his conclusion she can frequently handle and finger bilaterally (id. at 7).
Plaintiff argues limiting her to only frequent use of her hands does not account for her difficulties
or the clinical findings (id.). She states that the amount she can use her hands is different from
the speed or manner in which she can use her hands and fingers (id.). Finally, in a one-sentence
argument, Plaintiff asserts that the ALJ exceeded his authority by including a limitation to simple
work with occasional decision-making and minimal changes in work setting to accommodate Dr.
Day’s recommendation to avoid stress because the ALJ did not ask the vocational expert about
the degree of stress in the listed jobs (id. at 8).
In the RFC, the ALJ included a limitation that Plaintiff can frequently perform gross and
fine manipulation (Tr. 13). Plaintiff argues there is no medical opinion to support this limitation;
however, there is no requirement that a limitation be supported by a specific medical opinion.
Hensley, 829 F.3d at 932. All that is required is that the RFC be supported by some medical
evidence. Id. “In the absence of medical opinion evidence, ‘medical records prepared by the
most relevant treating physicians [can] provide affirmative medical evidence supporting the
ALJ’s residual functional capacity findings.’” Id. (quoting Johnson v. Astrue, 628 F.3d 991, 995
(8th Cir. 2011)). The ALJ supported the limitation in this case with Dr. Day’s treatment notes
that Plaintiff had broad thumbs with multiple finger contractures and that her fine finger
movements were small and slow with contractures in the hands (Tr. 15, 271-72).
Plaintiff further argues that the limitation does not account for her difficulties or clinical
findings, but she provides no evidence or argument as to what limitation would be appropriate
(Doc. 25 at 6-8). It is Plaintiff’s burden to establish the RFC, Eichelberger, 390 F.3d at 591.
The ALJ acknowledged Plaintiff’s severe impairment of Rubinstein-Taybi syndrome but
determined she could frequently manipulate. The medical record does not contradict an ability

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to frequently manipulate. Plaintiff testified she had trouble tying shoes, doing buttons, turning
things with her right hand, and using utensils, and that she sometimes drops things (Tr. 51-53).
She also mentioned difficulty typing in her function report (Tr. 179-89). However, nowhere in
the medical record does Plaintiff indicate to a provider that she has dexterity issues, and there is
no evidence in the medical record that Plaintiff lacks the ability to use her fingers in some
manner. Indeed, Dr. Gwartney checked in his opinion that Plaintiff had no manipulation
limitations and Plaintiff herself testified she was “not sure” how her Rubinstein-Taybi syndrome
affected her (Tr. 51, 89). Thus, Plaintiff has failed to show the RFC should be more restrictive.
As for Plaintiff’s final argument—that the ALJ exceeded his authority when he included
a limitation to simple work—Plaintiff fails to provide any support for the argument (Doc. 25 at
8). She does not explain what additional limitations were necessary, how this limitation was not
supported by the medical evidence, or how the jobs listed would not meet this limitation. Dr.
Day’s treatment notes support the RFC and this specific limitation. The Court will not reverse
on this basis.
C. Medical Opinion Evidence
Plaintiff generally argues that the ALJ did not properly consider the medical opinion
evidence because the ALJ did not discuss the supportability and consistency of the opinions as
required by the Regulations (Doc. 25 at 8). The Court notes that Plaintiff provides no analysis
specific to this case.
The new Social Security regulations regarding the evaluation of medical opinion
evidence apply to Plaintiff’s case because she filed her application after March 27, 2017. 20
C.F.R. § 404.1520c. Under the new regulations, an ALJ is no longer required to “give any
specific evidentiary weight, including controlling weight, to any medical opinion(s),” including

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those from treating physicians. 20 C.F.R. § 404.1520c(a). Rather, the ALJ is to consider factors
in determining how persuasive to find medical opinions and prior administrative medical
findings. 20 C.F.R. § 404.1520c(b). An ALJ must explain how she considered the factors of
supportability and consistency in her decision, but need not explain how she considered the other
factors. 20 C.F.R. § 404.1520c(b)(2). The supportability factor provides that “[t]he more
relevant the objective medical evidence and supporting explanations presented by a medical
source are to support his or her medical opinion(s) or prior administrative medical finding(s), the
more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20
C.F.R. § 404.1520c(c)(1). The consistency factor states that “[t]he more consistent a medical
opinion(s) or prior administrative medical finding(s) is with the evidence from other medical
sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior
administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2).
After summarizing Plaintiff’s testimony and the medical record, the ALJ addressed
medical opinions from Dr. Gwartney and Dr. Day (Tr. 14-16). The ALJ summarized Dr.
Gwartney’s opinions and then concluded the opinions, as they relate to exertional limitations,
were not persuasive, because there was no evidence to support them (Tr. 16). The ALJ then
explained the medical record shows Plaintiff has full strength and sensation, normal gait, normal
finger to nose testing, and no sensory deficits (id.). This explanation addresses both
supportability and consistency without using those specific words.
Similarly, for Dr. Day, the ALJ summarized the precautions included in Dr. Day’s
treatment notes and found them persuasive (Tr. 16). The ALJ then detailed the evidence in the
medical record to support the limitations, such as the frequency of Plaintiff’s seizures, the effects
of those seizures, the frequency of episodes of numbness and tingling, and the effects of those

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episodes, along with other evidence (Tr. 16-17). The ALJ’s explanation again addresses both
supportability and consistency even though he did not use those specific words. The ALJ
properly considered the medical opinions and his analysis of those opinions is in accordance with
the Regulations.
D. Subjective Complaints
Finally, Plaintiff argues the ALJ failed to properly evaluate her subjective complaints
(Doc. 25 at 8-13). Plaintiff argues the ALJ’s decision does not identify persuasive evidence from
which one could conclude that Plaintiff’s symptoms are not genuine (id. at 9). According to
Plaintiff, the decision does not explain how the evidence is inconsistent with her subjective
symptoms (id.).
In evaluating Plaintiff’s subjective symptoms, the ALJ wrote: “After careful
consideration of the evidence, the undersigned finds the claimant’s medically determinable
impairments could reasonably be expected to cause some of the alleged symptoms; however, the
claimant’s statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other evidence in the record
for the reasons explained in this decision.” (Tr. 15). The ALJ noted that the medical evidence
did not support Plaintiff’s reported frequency of seizures or seizure activity or her alleged
difficulties with her memory or concentration (id.).
In her function report, dated April 9, 2019, Plaintiff reported her symptoms as follows.
Her epilepsy makes her pass out, gives her tingles in her fingers and toes, and makes her lightheaded (Tr. 179). She cannot think quickly, her memory has weakened, and after conversations,
she cannot make sense of what has been said (id.). She uses an alarm to remember to take her
medications, and her medications affect her memory, making it difficult for her to read directions

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(Tr. 181). On days when she has seizures, she cannot do chores because she is not clear-headed,
and the seizures make her sleep a lot (Tr. 180-81). When she has a seizure, she cannot be alone
because she cannot think clearly (Tr. 182). She is unable to count because she cannot remember
what she has counted, and unable to read or draw as she likes because she cannot concentrate
(Tr. 182-83). She has difficulty finding her words when speaking (Tr. 184). She does not follow
written or spoken instructions well and has to reread or have them repeated many times (id.).
She cannot handle stress at all because it can sometimes cause seizures and she feels like she is
losing control of her life (Tr. 185). In describing her limitations, Plaintiff indicated she had
difficulties with talking, memory, completing tasks, concentration, understanding, and following
instructions (Tr. 184). She can pay attention for only a couple of minutes and does not finish
what she starts (id.).
During her hearing, Plaintiff testified about her conditions and limitations as follows (Tr.
39-61). After a seizure she feels very tired, “not really always with it,” and confused (Tr. 42-43).
She usually sleeps for four to five hours after a seizure (Tr. 43). Her medication caused her to
drool during conversations (Tr. 44). She loses track of conversations and starts talking about
something completely different (id.). Her memory of new events is worse and she often cannot
remember when she has done something (Tr. 45). Plaintiff testified that, in the first five months
of 2020, she had approximately 47 episodes of “seizure-like” activity, roughly the same amount
of seizure activity that she had been having for the past couple of years (Tr. 49-50). She has had
“quite a few” days where she had multiple seizures in a day (Tr. 54).
An ALJ is required to consider the following factors in assessing subjective symptoms:
“(1) the claimant’s daily activities; (2) the duration, intensity, and frequency of pain; (3) the
precipitating and aggravating factors; (4) the dosage, effectiveness, and side effects of

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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.” Moore, 572 F.3d at 524.
“While the claimant has the burden of proving that the disability results from a medically
determinable physical or mental impairment, direct medical evidence of the cause and effect
relationship between the impairment and the degree of claimant’s subjective complaints need not
be produced.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
An absence of objective medical evidence is one factor which may be considered, but an
ALJ must “give full consideration to all of the evidence presented relating to subjective
complaints, including the claimant’s prior work record, and observations by third parties and
treating and examining physicians.” Id. Further, the ALJ “is not free to accept or reject the
claimant’s subjective complaints solely on the basis of personal observations.” Id. (emphasis in
original). “Subjective complaints may be discounted if there are inconsistencies in the evidence
as a whole.” Id.
An ALJ is not required to discuss each of the Polaski factors, as long as she
acknowledges and considers the factors before discounting subjective complaints. Grindley v.
Kijakazi, 9 F.4th 622, 630 (8th Cir. 2021). The ALJ’s determinations of credibility are ordinarily
due deference by the courts. Id. (citing Halverson v. Astrue, 600 F.3d 922, 932 (8th Cir. 2010)).
An ALJ may decline to credit a plaintiff’s subjective complaints if the evidence as a whole is
inconsistent with a plaintiff’s testimony. Swink v. Saul, 931 F.3d 765, 771 (8th Cir. 2019);
Moser v. Kijakazi, No. 4:20 CV 724 ACL, 2021 WL 4476699, at *4 (E.D. Mo. Sept. 30, 2021).
Inconsistencies between a plaintiff’s statements regarding their daily activities and their claimed
limitations are one potential ground for discrediting such statements. Adamczyk v. Saul, 817 F.
App’x 287, 291 (8th Cir. 2020).

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As a preliminary matter, the Court notes that the ALJ did not entirely discredit Plaintiff’s
subjective symptoms. He stated her impairments could reasonably be expected to cause some of
the alleged symptoms, but not the intensity, persistence, or frequency that she described (Tr. 15).
The ALJ sufficiently supported this determination with evidence from the medical record. He
noted how Dr. Day’s treatment notes reported only 0-2 episodes of unresponsiveness between
April and August 2018, and only 0-2 episodes of heavy breathing, loss of confusion, and fatigue
during the same period (Tr. 15). This contrasts with Plaintiff’s testimony she had 47 incidents
over a five-month period. The ALJ also referenced Dr. Day’s notes that Plaintiff was alert,
awake and fully oriented, followed commands, and had normal attention (Tr. 15). The ALJ
noted that in the two months after her date last insured, Plaintiff documented no seizures on her
seizure calendar (Tr. 16).
Dr. Day’s treatment notes from the August 2018 visit include the frequency of seizures
cited by the ALJ (Tr. 267). And, in his notes from Plaintiff’s February 2019 visit, Dr. Day wrote
that Plaintiff’s seizure calendar showed no seizures in February 2019, 2-3 days of feeling
tired/napping, and that the last seizure Plaintiff and her husband could remember was in
December 2018 (Tr. 275). With regard to memory and concentration, Dr. Day’s notes from the
August 2018 visit indicate that “[m]ore recently [Plaintiff] has intermittently been back in a
pattern of not being focused enough to read and draw as she usually can” (Tr. 268). He further
indicated Plaintiff’s last report of her memory worsening could be the result of bitemporal
dysfunction or her medication (id.). Dr. Day noted that, while Plaintiff had gone through a
period in which she “stopped reading for pleasure [and] had cognitive difficulty and wordfinding problems/paraphasic errors,” after making changes to her medication, the side effects
lessened and she was able to read for pleasure again (Tr. 267). In his notes from Plaintiff’s

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February 2019 visit, Dr. Day noted Plaintiff was still reporting medication side effects, but
observed Plaintiff was alert, awake, and oriented to person, place, and time, had fluent speech
and followed commands, and her attention, affect, and mood were normal (Tr. 279). Dr. Day’s
notes support the ALJ’s conclusions regarding Plaintiff’s subjective symptoms.
Plaintiff argues that the ALJ failed to make any express credibility determinations, detail
reasons for discrediting her testimony, or set forth the inconsistencies upon which he relied (Doc.
25 at 12). As discussed above, the ALJ did set forth the inconsistencies between Plaintiff’s
testimony as to the frequency of her seizures and Dr. Day’s treatment notes, as well as her
seizure calendar. Furthermore, the ALJ was not required to make an express credibility
determination. The Social Security Administration issued a new ruling that eliminated the use of
the term “credibility” when evaluating a claimant’s subjective statements of symptoms,
clarifying that “subjective symptom evaluation is not an examination of an individual’s
character.” SSR 16-3p, 2017 WL 5180304, at *2 (Soc. Sec. Admin. Oct. 25, 2017)
(republished). The factors to be considered in evaluating a claimant’s statements, however,
remain the same. See id. at *13; 20 C.F.R. §§ 404.1529, 416.929. This new ruling applies to
final decisions of the Commissioner made on or after March 28, 2016.
As for Plaintiff’s complaints of memory and concentration issues, there is no objective
medical evidence to support her complaints. The only relevant evidence is in Dr. Day’s
treatment notes, which list her complaints but no objective observations. The Court finds there is
substantial evidence in the record to support the ALJ’s conclusion that Plaintiff’s subjective
complaints are inconsistent with the bulk of her objective treatment records. The ALJ
considered the proper factors in evaluating Plaintiff’s subjective complaints, and the Court will
defer to the ALJ’s credibility finding. Moore, 572 F.3d at 524.

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V. CONCLUSION
For the foregoing reasons, the Court finds that substantial evidence on the record as a whole
supports the Commissioner’s decision that Plaintiff is not disabled.
Accordingly,
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 16th day of September, 2022.

/s/ Noelle C. Collins

NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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