Green v. Kijakazi

Filing 24

MEMORANDUM AND ORDER: The Court dismisses Green's 1 Complaint with prejudice. A separate order of dismissal accompanies this memorandum and order. SEE ORDER FOR DETAILS. Signed by Chief District Judge Stephen R. Clark on 3/26/2024. (CLT)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID E. GREEN,
Plaintiff,
v.
MARTIN O’MALLEY,
Commissioner of the Social Security
Administration, 1
Defendant.

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Case No. 4:23-cv-00331-SRC

Memorandum and Order
Plaintiff David Green seeks judicial review of the Commissioner of the Social Security
Administration’s final decision denying his application for disability-insurance benefits under
Title II of the Social Security Act. See 42 U.S.C. § 405(g). The Court affirms the
Commissioner’s decision.
I.

Procedural history
In August 2020, Green applied for disability-insurance benefits under Title II of the

Social Security Act, 42 U.S.C. §§ 401–433. Tr. 182–83. The Social Security Administration
denied his application, Tr. 90–94; Green requested reconsideration of that decision, Tr. 96; and
the SSA, upon reconsideration, affirmed its initial denial, Tr. 97–101. Next, Green appealed to
an Administrative Law Judge who considered the whole record, conducted an administrative
hearing at which Green testified, and, in the end, re-affirmed that Green did not qualify as
disabled for purposes of disability-insurance benefits. Tr. 19–30. Green then sought review of
Martin O’Malley became the Commissioner of the Social Security Administration on December 20, 2023.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court substitutes Martin O’Malley for Kilolo
Kijakazi 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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the ALJ’s decision from the Appeals Council, but it denied his request. Tr. 1–5. In the wake of
that denial, the ALJ’s opinion stands as the Commissioner’s final decision on Green’s claim. Tr.
1; see 20 C.F.R. §§ 404.900(a)(5), 416.1400(a)(5). Green now seeks judicial review of that final
decision under 42 U.S.C. § 405(g).
II.

Standard for determining disability under the Act
Under the Social Security Act, an adult individual qualifies as disabled “if he is unable to

engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than twelve months.” 42 U.S.C.
§ 1382c(a)(3)(A). A claimant has a disability “only if his physical or mental impairment or
impairments are of such severity that he is not 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).
The Commissioner follows a five-step evaluation when determining whether a claimant
has a disability. See 20 C.F.R. § 416.920(a)(1). First, the Commissioner considers the
claimant’s work activity. Id. at § 416.920(a)(4)(i). If the claimant is engaged in substantial
gainful activity, the claimant is not disabled. Id.
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
evaluates the evidence to determine whether the claimant has a severe “impairment[] [that]
significantly limits [the claimant’s] physical or mental ability to do basic work activities.” Hurd
v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010) (quoting 20 C.F.R. § 416.920(c)); see also 20 C.F.R.
§ 416.920(a)(4)(ii). “An impairment is not severe if it amounts only to a slight abnormality that
would not significantly limit the claimant’s physical or mental ability to do basic work

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activities.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007) (citations omitted); see also 20
C.F.R. §§ 416.920(c), 416.920a(d).
Third, if the claimant has a severe impairment, the Commissioner considers the
impairment’s medical severity. If the impairment meets or equals one of the presumptively
disabling impairments that the regulations list, the claimant qualifies as disabled, regardless of
age, education, and work experience. 20 C.F.R. § 416.920(a)(4)(iii), (d).
Fourth, if the claimant’s impairment is severe, but does not meet or equal one of the
presumptively disabling impairments, the Commissioner assesses whether the claimant retains
the residual functional capacity (RFC) to perform his or her past relevant work. 20 C.F.R.
§§ 416.920(a)(4)(iv), 416.945(a)(5)(i). RFC is “the most a claimant can still do despite his or her
physical or mental limitations.” Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011) (quoting
Leckenby v. Astrue, 487 F.3d 626, 631 n.5 (8th Cir. 2007)); see also 20 C.F.R. § 416.945(a)(1).
While a determination of RFC must be “based on all relevant evidence, including the medical
records, observations of treating physicians and others, and an individual’s own description of
his limitations,” it is nonetheless an administrative assessment—not a medical assessment—and
therefore “the responsibility of the ALJ, not a physician, to determine.” Boyd v. Colvin, 831 F.3d
1015, 1020 (8th Cir. 2016) (quoting Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009)). Thus,
“there is no requirement that an RFC finding be supported by a specific medical opinion.”
Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016) (citations omitted).
Ultimately, the claimant is responsible for providing evidence relating to his RFC, and
the Commissioner is responsible for developing the claimant’s “complete medical history,
including arranging for a consultative examination[] if necessary, and making every reasonable
effort to help [the claimant] get medical reports from [his] own medical sources.” 20 C.F.R.

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§ 416.945(a)(3). If the Commissioner determines that the claimant retains the RFC to perform
past relevant work, he or she does not qualify as disabled. 20 C.F.R. § 416.920(a)(4)(iv).
Finally, if the claimant’s RFC does not allow the claimant to perform past relevant work,
the burden of producing evidence showing the claimant maintains the RFC to perform work that
exists in significant numbers in the national economy shifts to the Commissioner. See Goff v.
Barnhart, 421 F.3d 785, 790 (8th Cir. 2005); 20 C.F.R. § 416.920(a)(4)(v). If the claimant can
make an adjustment to other work that exists in significant numbers in the national economy, the
Commissioner finds the claimant not disabled. 20 C.F.R. § 416.920(a)(4)(v). If the claimant
cannot make an adjustment to other work, the Commissioner finds the claimant disabled. Id. At
this stage, even though the burden of production shifts to the Commissioner, the burden of
persuasion to prove disability remains on the claimant. Hensley, 829 F.3d at 932 (citing Goff,
421 F.3d at 785).
III.

The ALJ’s decision
Applying the foregoing, the ALJ determined that Green did not qualify as disabled for

purposes of disability-insurance benefits. First, the ALJ found that Green met the insured status
requirements of the Social Security Act for the relevant time period; that he had not engaged in
substantial gainful activity since the alleged onset date of July 10, 2020; and that he suffered
from two severe impairments: rheumatoid arthritis and atrial fibrillation. Tr. 21. The ALJ
explained, however, that Green’s impairments (or combination thereof) did not meet or
medically equal the severity of any of the presumptively disabling impairments that federal
regulations list. Tr. 24. Next, the ALJ determined that Green has the RFC to perform “a reduced
range of light work as defined in 20 C.F.R. [§] 404.1567(b),” subject to certain limitations
including on climbing; stooping; and exposure to extreme temperatures, heights, and hazardous

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machinery. Tr. 24–29. Based on that finding, the ALJ found that Green could not perform any
past relevant work, but that jobs existed in significant numbers in the national economy that
Green could still perform. Tr. 29–30. For that reason, the ALJ concluded that Green did not
qualify as disabled under the relevant provisions of the Act. Tr. 30.
Green then sought review from the Appeals Council and submitted to the Council new
evidence for its consideration. Tr. 2. The Council denied review, explaining that the additional
evidence “did not affect the decision” regarding Green’s disability because it did “not relate to
the period at issue.” Tr. 1–2.
IV.

Standard of review
When a claimant seeks judicial review of the Commissioner’s decision regarding

disability, the Court determines whether substantial evidence on the record as a whole supports
the Commissioner’s decision. 42 U.S.C. §§ 1383(c)(3), 1405(g). If it does, the Court must
affirm the decision. Id. Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154
(2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “[T]he threshold
for such evidentiary sufficiency is not high.” Id. Under this test, the Court “consider[s] all
evidence in the record, whether it supports or detracts from the ALJ’s decision.” Reece v.
Colvin, 834 F.3d 904, 908 (8th Cir. 2016) (citing Crawford v. Colvin, 809 F.3d 404, 408 (8th Cir.
2015)). The Court “do[es] not reweigh the evidence presented to the ALJ” and will “defer to the
ALJ’s determinations regarding the credibility of testimony, as long as those determinations are
supported by good reasons and substantial evidence.” Id. (quoting Johnson v. Colvin, 788 F.3d
870, 872 (8th Cir. 2015)). The Court will not “reverse merely because substantial evidence also
exists in the record that would have supported a contrary outcome, or because [the Court] would

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have decided the case differently.” KKC ex rel. Stoner v. Colvin, 818 F.3d 364, 369 (8th Cir.
2016) (quoting Andrews v. Colvin, 791 F.3d 923, 928 (8th Cir. 2015)).
V.

Discussion
Green makes one argument in his brief: that the Appeals Council should have accepted

his additional submitted evidence, and that the additional evidence, coupled with the materials
originally in the record, robs the ALJ of substantial evidence to support her opinion. See doc. 13.
But the Court finds that the Appeals Council rightly declined to consider Green’s additional
proffered evidence, and that the original evidence supplies substantial evidence to support the
ALJ’s decision.
A. The Appeals Council rightly declined to consider Green’s additional proffered
evidence.
The Appeals Council did not err in affirming the ALJ’s decision without considering the
additional evidence. Federal regulations require the Appeals Council, as a general matter, to
“review a case . . . if . . . [it] receives additional evidence that is new, material, and relates to the
period on or before the date of the hearing decision, and there is a reasonable probability that the
additional evidence would change the outcome of the decision.” 20 C.F.R. § 404.970(a)(5).
That requirement, however, comes with one important condition: that the claimant show “good
cause” for failing to include the evidence in the original record. Id. at § 404.970(a)(5), (b).
“[G]ood cause” exists when either the SSA itself misled the claimant on a relevant point; some
“physical, mental, educational, or linguistic limitation[]” caused the claimant’s failure to include
the evidence; or an “unusual, unexpected, or unavoidable circumstance beyond [the claimant’s]
control” caused the failure. Id. “Whether evidence meets these criteria is a question of law this
court reviews de novo.” Bergmann v. Apfel, 207 F.3d 1065, 1069 (8th Cir. 2000) (citing Box v.
Shalala, 52 F.3d 168, 171 (8th Cir. 1995)).
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The Appeals Council did not make a finding on the requirement of good cause. See Tr.
1–4. Instead, the Council held that Green’s additional evidence “does not relate to the period at
issue” because the ALJ “decided [Green’s] case through April 27, 2022,” but the new evidence is
“dated April 29, 2022 through May 12, 2022.” Tr. 2. “Therefore, [the new evidence] does not
affect the decision about whether [Green was] disabled beginning on or before April 27, 2022.”
Id. The Court agrees.
Green’s additional evidence post-dates the decision he claims the Appeals Council should
have reversed. On April 27, 2022, the ALJ denied him disability-insurance benefits in what is
now the Commissioner’s final decision. Tr. 30. Before issuing that decision, the ALJ held a
hearing at which she asked whether Green was waiting for any other documents to add to the
record. Tr. 39. “No,” his attorney confirmed; “at this point, everything is in.” Id. The week
after the ALJ’s decision, Green’s attorney wrote to Green’s doctor, Amanda Dehlendorf,
explaining that he was “gathering medical evidence” and asking Dehlendorf to complete a
questionnaire about Green’s health so that the attorney could “prove that Mr. Green is unable to
perform . . . any ‘light work.’” Tr. 10. Dehlendorf completed a two-page questionnaire dated
May 12, 2022, and Green submitted that questionnaire, along with x-ray images dated April 29,
2022, to the Appeals Council with his request for review. See Tr. 2, 11–15.
Although all Green’s additional evidence post-dates the time period the ALJ considered,
Green insists that the Council should have considered his new evidence because Dehlendorf’s
opinion “related back to the period of disability” and relied on her yearslong experience treating
Green for his impairments. Doc. 13 at 6–7. But nothing in her opinion—much less the x-ray
images themselves, which also post-date the ALJ’s decision—indicates that Dehlendorf’s
opinion reflected Green’s condition dating back to the dates considered by the ALJ. See Tr. 10–

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15. In fact, her opinion, dated May 12, 2022, simply provides that his “current diagnoses”
included rheumatoid arthritis and psoriasis, and that his symptoms included pain in his hands and
feet, morning stiffness, and soft-tissue swelling as “noted in recent x-ray.” Id. at 12. It appears
to focus entirely on Green’s condition as of—at the earliest—his April 29, 2022 x-ray results.
See id. at 11–15. Green assumes that Dehlendorf’s opinion is “based . . . on her treating
relationship with [him], spanning more than two . . . years,” doc. 13 at 6, but Dehlendorf never
stated the time period corresponding to her observations and diagnoses. See Tr. 11–13. Green
provides no evidence that the contents of Dehlendorf’s opinion relate to anything pre-dating
April 29, 2022—which is after the ALJ had already decided the matter.
Eighth Circuit precedent is instructive on how courts should consider such medical
records. In Roberson v. Astrue, the ALJ denied the plaintiff’s claim for disability-insurance
benefits, after which the plaintiff submitted additional records to the Appeals Council that postdated the ALJ’s decision. 481 F.3d 1020, 1026 (8th Cir. 2007). The Council “concluded that the
new records described [the claimant’s] condition on the date that the records were prepared, not
on an earlier date,” and therefore did not warrant review of the ALJ’s decision. Id. The Eighth
Circuit upheld that determination. “Medical evidence can, of course, provide information about
a claimant’s condition at an earlier date,” the panel allowed, “but we have reviewed the records
here and, though we believe that the question is close, we cannot say that the Appeals Council
erred in concluding that all of the new records referred to [the appellant’s] condition after [the
date] when the ALJ issued his decision.” Id. (citing Cunningham v. Apfel, 222 F.3d 496, 502
(8th Cir. 2000)).
So too here: the Appeals Council concluded that Dehlendorf’s opinion referred to
Green’s condition after the date of the ALJ’s decision, and Green does not demonstrate that the

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Council erred in making that determination. Tr. 2. Because “the newly submitted evidence is
not persuasively related to [Green’s] condition during the period prior to the ALJ’s decision,” the
Council “was not required . . . to consider the new evidence or to grant review of [his] claim.”
Box v. Shalala, 52 F.3d 168, 172 (8th Cir. 1995).
B.

Substantial evidence supports the ALJ’s decision.

Although Green does not dedicate substantial briefing to addressing the opinion of the
ALJ, see Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005) (declining to address
social security claimant’s undeveloped argument), the Court notes in closing that substantial
evidence supports the ALJ’s RFC finding, and therefore its consequent determination that Green
does not qualify as disabled for purposes of disability-insurance benefits. The ALJ found that
Green could perform some variant of “light work”:
[Green] has the residual functional capacity to perform a reduced range of light
work as defined in 20 [C.F.R. §] 404.1567(b), with the following additional
limitations. He can never climb ropes, ladders, or scaffolds[;] occasionally climb
ramps and stairs[;] occasionally balance . . .[;] and occasionally stoop, kneel,
crouch, and crawl. He can frequently handle and finger. [He] can have no
concentrated exposure to extreme heat, extreme cold, and vibration, and no
exposure to unprotected heights and hazardous machinery.
Tr. 24.
An RFC determination—or “the most a claimant can still do despite his or her physical or
mental limitations,” Martise, 641 F.3d at 923 (citation and internal quotation marks omitted)—is
“the responsibility of the ALJ, not a physician,” and must rely “on all relevant evidence,
including the medical records, observations of treating physicians and others, and an individual’s
own description of his limitations.” Boyd, 831 F.3d at 1020. To that end, in support of its
finding, the ALJ extensively discussed Green’s allegations and testimony before turning to the
opinions of two State-agency physicians. Tr. 24–29; see Tr. 66–81. And though “there is no

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requirement that an RFC finding be supported by a specific medical opinion,” Hensley, 829 F.3d
at 932 (citing Myers v. Colvin, 721 F.3d 521, 526–27 (8th Cir. 2013)), the ALJ emphasized two
medical opinions that she found persuasive—but which she still found did not outline all the
necessary limitations on Green’s ability to work, Tr. 24–29.
Both Judee Bland, M.D., and Kristy Curry, M.D., determined that Green could perform
light-exertion-level work. Tr. 66–81. Dr. Bland determined that Green could perform light work
but should only occasionally kneel, crouch, or crawl. Tr. 66–72. Dr. Curry went further, adding
that he should only occasionally (1) stoop or (2) climb ladders, ropes, or scaffolds; and that
Green should avoid concentrated exposure to extreme hot, extreme cold, vibrations, and hazards
such as certain machinery, heights, and the like. Tr. 73–81. The ALJ, however, went further yet,
finding that Dr. Curry’s opinion, though more persuasive than Dr. Bland’s, did not fully reflect
the necessary limitations on Green’s abilities, which she found should include limitations on
(1) balancing and (2) climbing ramps and stairs. Tr. 28 (explaining that even after Dr. Curry’s
evaluation, “some additional postural limits . . . are appropriate . . . . [Green] can never climb
ropes, ladders, or scaffolds”). Even so, the ALJ found that those limitations did not render Green
completely disabled, id.: a June 2020 medical report noted that Green’s rheumatoid arthritis had
stabilized, Tr. 435; and a January 2022 medical report noted that Green was no longer suffering
episodes of atrial fibrillation and would try going “drug-free,” taking medication only as needed,
Tr. 795. Those encouraging developments support the ALJ’s finding that Green, though limited
in his capacity to perform work, was not completely disabled.
Given that RFC finding and other factors in the record, if the claimant can make an
adjustment to other work that exists in significant numbers in the national economy, the
Commissioner finds the claimant not disabled. 20 C.F.R. § 416.920(a)(4)(v). Here, the ALJ

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noted that at least two categories of work remained available to Green despite his limitations:
retail clerk (DOT 299.677-010), featuring approximately 400,000 jobs available nationally, and
dining room attendant (DOT 311.677-010), featuring approximately 430,000 jobs available
nationally. Tr. 29–30. Those categories and figures come directly from the testimony of a
vocational expert, who appeared at Green’s hearing before the ALJ and explained that Green
remained able to perform work in at least those two categories. Tr. 59–64; see also Tr. 263–64
(describing the vocational expert’s qualifications). Because Green remained able to perform that
kind of work, the ALJ found that Green did not qualify as disabled and therefore did not qualify
for disability-insurance benefits. Tr. 29–30. The vocational expert’s testimony provides
substantial evidence for that conclusion.
VI.

Conclusion
The Court’s review is limited to determining whether substantial evidence supports the

ALJ’s findings, and whether those findings rely on the correct legal standards. The Court does
not substitute its own judgment for that of the ALJ. McNamara v. Astrue, 590 F.3d 607, 610
(8th Cir. 2010). Having found that substantial evidence supports the ALJ’s conclusions and that
the ALJ applied correct legal standards, the Court affirms the ALJ’s decision. Further, the
Appeals Council correctly declined to consider Green’s additional proffered evidence.
Accordingly, the Court dismisses Green’s [1] Complaint with prejudice. A separate order of
dismissal accompanies this memorandum and order.
So ordered this 26th day of March 2024.

STEPHEN R. CLARK
CHIEF UNITED STATES DISTRICT JUDGE
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