Henderson v. Kijakazi

Filing 22

MEMORANDUM AND ORDER: For the reasons explained above, the Court finds that the ALJ's detailed analysis and citations to the record demonstrate that substantial evidence supports the ALJ's RFC determination. Accordingly, the Court affirms the decision of the Commissioner of Social Security and dismisses Henderson's 1 Complaint with prejudice. A separate judgment accompanies this Memorandum and Order. Signed by Chief District Judge Stephen R. Clark on 8/28/24. (JAB)

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

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Case No. 4:23-cv-00600-SRC

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

Procedural history
In February 2019, Henderson filed an application for disability-insurance benefits with

the Social Security Administration. Tr. 166–82. The Administration denied his application, Tr.
100–04, so he sought rehearing before an Administrative Law Judge, see Tr. 105–10, who also
denied Henderson’s application, Tr. 26–39. Henderson then sought review by the Appeals
Council, Tr. 162–65, but the Council denied his request, Tr. 1–7.
Henderson appealed to this Court, Tr. 698–99, which, on motion of the Commissioner of
the Administration, reversed and remanded the ALJ’s decision for re-evaluation of Henderson’s
claim, Tr. 739–42. After a second hearing, the ALJ granted Henderson disability-insurance
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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benefits as of May 23, 2022, but denied him benefits for the period from June 26, 2018, through
May 22, 2022. Tr. 624–39. Four months later, Henderson filed suit in this Court appealing the
ALJ’s latest decision, doc. 1, which became the final decision of the Commissioner subject to
this Court’s review, see 20 C.F.R. §§ 404.984(d).
II.

Standard for determining disability under the Act
Under the Social Security Act, an adult individual is 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 evaluating whether the claimant
has a disability. 20 C.F.R. § 404.1520(a)(1). First, the Commissioner considers the claimant’s
work activity. 20 C.F.R. § 404.1520(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.” 20
C.F.R. § 404.1520(c)). “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
activities.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007) (first citing Bowen v. Yuckert, 482

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U.S. 137, 153 (1987); then citing id. at 158 (O’Connor, J., concurring); and then citing 20 C.F.R.
§ 404.1521(a)).
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 listed in the regulations, the claimant is considered disabled, regardless of
age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(iii), (d).
Fourth, if the claimant’s impairment is severe, but it 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.
§§ 404.1520(a)(4)(iv). “RFC is defined as 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)). While 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,” RFC is nonetheless an administrative
assessment—not a medical assessment—and therefore “it is the responsibility of the ALJ, not a
physician, to determine a claimant’s RFC.” 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) (first citing Myers v. Colvin, 721 F.3d 521, 526–27 (8th Cir. 2013); and
then citing Perks v. Astrue, 687 F.3d 1086, 1092–93 (8th Cir. 2012)).
Ultimately, the claimant is responsible for providing evidence relating to his or her 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

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effort to help [the claimant] get medical reports from [the claimant’s] own medical sources.”
20 C.F.R. § 404.1545(a)(3). If the Commissioner determines that the claimant retains the RFC to
perform past relevant work, he or she is not disabled. 20 C.F.R. § 404.1520(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. § 404.1520(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. See 20 C.F.R. § 404.1520(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 concluded that Henderson “was not disabled prior to

May 23, 2022, but became disabled on that date.” Tr. 628. First, she found that Henderson met
“the insured status requirements of the Social Security Act through December 31, 2023.”
Tr. 629. Second, she found that Henderson engaged in substantial gainful activity from June 26,
2018—Henderson’s alleged disability onset date—through August 8, 2018, but that after that
period, Henderson’s minimal earnings “[did] not rise to the level of substantial gainful activity.”
Tr. 629–30. Third, she found that Henderson suffered from two severe impairments:
degenerative joint disease in his left knee, and degenerative disc disease in his lumbar spine.
Tr. 630. Fourth, she found that Henderson did not suffer from an impairment or combination of

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impairments meeting or medically equaling the severity of one of the presumptively disabling
impairments. Tr. 631. Fifth, she found that Henderson had the RFC to perform sedentary work
as defined in 20 C.F.R. § 404.1567(a), subject to the following restrictions:
[T]he claimant should never operate foot controls. He must use a cane to ambulate,
but can still lift, carry, push, or pull at the standard sedentary limits. He should
never climb ropes, ladders, or scaffolds. He can occasionally climb ramps and
stairs. He should never balance (as defined in the Dictionary of Occupational Titles
and the Selected Characteristics of Occupations). He can occasionally stoop. He
can never kneel, crouch, or crawl. The claimant should have no exposure to extreme
heat, extreme cold, unprotected heights, or hazardous machinery.
Tr. 632. Sixth, she found that since his alleged disability onset date, he had been unable to
perform any past relevant work. Tr. 637. Finally, she concluded that considering Henderson’s
age, education, work experience, and RFC, jobs existed in significant numbers in the national
economy that Henderson could perform before May 23, 2022, but no such jobs existed that
Henderson could perform after that date. Tr. 637–38. Accordingly, the ALJ found that
Henderson qualified as “disabled” only as of May 23, 2022 for benefits purposes. Tr. 638–39.
IV.

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

determines whether substantial evidence on the record as a whole supports his decision.
42 U.S.C. §§ 1383(c)(3), 405(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, 587 U.S. 97, 103 (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

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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 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
The ALJ determined that from June 26, 2018, through May 22, 2022, subject to certain

parameters, Henderson had the RFC to perform sedentary work, which the Administration’s
regulations define as follows:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job duties. Jobs are sedentary if
walking and standing are required occasionally and other sedentary criteria are met.
20 C.F.R. 404.1567(a). The ALJ determined that the following conditions applied to her
sedentary-work RFC finding:
[Henderson] should never operate foot controls. He must use a cane to ambulate,
but can still lift, carry, push, or pull at the standard sedentary limits. He should
never climb ropes, ladders, or scaffolds. He can occasionally climb ramps and
stairs. He should never balance (as defined in the Dictionary of Occupational Titles
and the Selected Characteristics of Occupations). He can occasionally stoop. He
can never kneel, crouch, or crawl. The claimant should have no exposure to
extreme heat, extreme cold, unprotected heights, or hazardous machinery.
Tr. 632.
Henderson insists that during the relevant period, he could not perform even sedentary
work, no matter the limiting conditions listed by the ALJ. See doc. 14. In particular, he

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challenges the ALJ’s RFC determination, making two arguments: that the ALJ failed to properly
evaluate the medical opinions in the record, and that the ALJ failed to properly evaluate
Henderson’s own testimony regarding the severity of his pain. See id. at 3–15. 2 The Court
addresses each argument in turn.
A.

The ALJ properly evaluated the prior administrative medical findings and
medical opinions in the record.

The Commissioner’s regulations provide that, for claims filed on or after March 27, 2017,
an ALJ “will not defer or give any specific evidentiary weight, including controlling weight, to
any medical opinion[] or prior administrative medical finding[].” 20 C.F.R. § 404.1520c(a).
Instead, an ALJ must evaluate the persuasiveness of prior administrative medical findings and
medical opinions in light of several factors, the most important of which are supportability and
consistency. Id. at § 404.1520c(a)–(c); Bowers v. Kijakazi, 40 F.4th 872, 875 (8th Cir. 2022).
The consistency factor states that “[t]he more consistent a medical opinion[] or prior
administrative medical finding[] is with the evidence from other medical sources and nonmedical
sources in the claim, the more persuasive the medical opinion[] or prior administrative medical
finding[] will be.” 20 C.F.R. § 404.1520c(c)(2). Similarly, 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[] or prior administrative medical
finding[], the more persuasive the medical opinions or prior administrative medical finding[] will
be.” Id. at § 404.1520c(c)(1). An ALJ must discuss the consistency and supportability factors in
her decision, but need not explain how she considered the other factors. Id. at § 404.1520c(b)(2).
Nor does the ALJ need to explicitly use the words “consistent” or “support,” or some variation
thereof, in the analysis: “word choice alone does not warrant reversal.” Atwood v. Kijakazi, No.
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The Court cites to page numbers as assigned by CM/ECF.

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4:20-cv-1394-JAR, 2022 WL 407119, at *5 (E.D. Mo. Feb. 10, 2022) (citing Kamann v. Colvin,
721 F.3d 945, 951 (8th Cir. 2013)).
The ALJ met that standard here by discussing whether and how the medical opinions
reflect consistency with, and supportability from, the objective evidence. First, the ALJ
considered the opinion of state-agency medical consultant Dennis DeGraw, who concluded that
Henderson retained the RFC to do light exertional work with some standing and sitting
limitations. See Tr. 86–96. The ALJ reviewed the medical evidence and determined that
DeGraw’s opinion did not suffice to account for “the combined effects of [Henderson]’s back
and knee pain,” which the ALJ determined called for “a [further] restriction to sedentary lifting
and carrying.” Tr. 635. Next, where state-agency psychological consultant Steven Akeson had
found that Henderson exhibited no medically determinable medical impairment, the ALJ found
that by contrast, the evidence showed Henderson suffered from depression, a determinable
medical impairment—though not with sufficient severity to “result[] in significant functional
limitations.” Id. The psychological examinations that J. Coulter and Kim Stalker performed of
Henderson, concluding that Henderson experienced no relevant limitations in his work-related
mental functional abilities, supports the ALJ’s view, Tr. 715–17, 1103–08, and the ALJ found
Coulter’s and Stalker’s opinion consistent with Henderson’s statements and treatment records,
Tr. 635.
Next, the ALJ cited to Exhibits 6A and 9A in the record, which contain the opinions of
state-agency medical consultants Renu Debroy, Barbara Markway, and Jane Murray. See Tr.
709–38. Though the ALJ only named Debroy, the decision accurately noted that the opinions
found Henderson limited to sedentary work. Tr. 635; see Tr. 709–38. The ALJ found that
assessment “mostly persuasive,” but, among other modifications, noted that because Henderson

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used a cane to walk, additional limitations on Henderson’s RFC would better reflect the extent of
his ailments. Tr. 635. Similarly, the ALJ found persuasive the opinion of Aemer Massay, who
determined that Henderson had a medical need to use a cane when walking. Tr. 636. The ALJ
cited supporting evidence in the record indicating that Henderson limped without a cane, but had
a normal gait with a cane. Id.
The ALJ also explained why she found the remaining opinions inconsistent with, and
unsupported by, the evidence of record. First, the ALJ considered the opinion of Catherin Ash,
who concluded that Henderson could not walk for 50 feet; in rejecting that view, the ALJ pointed
to record evidence showing that Henderson had a normal gait when using a cane and normal
strength in his lower extremities. Id. Second, the ALJ considered the opinion of Daniel Martin,
who concluded that Henderson could lift nothing at all, could not stand or walk for two hours,
and would require unscheduled breaks from work. Id.; see Tr. 604–06. The ALJ found Martin’s
opinion unpersuasive because it found no evidence to support such limitations, and noted
contrary evidence in the record showing Henderson able to walk normally with a cane, perform a
partial squat, and enjoying normal strength in his lower extremities. Tr. 636. Third, having
noted those abilities, the ALJ found unpersuasive the opinion of Thomas Hawk that Henderson
was “incapable of work that involves standing, walking, or even sitting for an extended period of
time,” because the opinion did not explain the term “extended period of time,” nor did the
opinion actually outline Henderson’s physical limitations. Id.; see Tr. 958–61. Fourth, the ALJ
also rejected the contrary opinion of John Krause, who had returned Henderson to full duty: the

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ALJ explained that Henderson “clearly has ongoing limitations[] that would prevent him from
performing full duty work.” Tr. 636.
Finally, Henderson argues that the ALJ failed to explicitly evaluate the opinions of
Barbara Markway and Jane Murray, doc. 14 at 10, but both opinions feature in Exhibit 9A, see
Tr. 730–38, which the ALJ cited in her discussion of Dr. Debroy’s opinion, see Tr. 635. In
Exhibit 9A, Markway opined that Henderson suffers from a medically determinable, but nonsevere, mental impairment, Tr. 732–33—a conclusion that Henderson does not challenge, see
doc. 14, and which matches the conclusion that the ALJ herself reached without relying on
Markway’s opinion, see Tr. 635. Accordingly, even if the ALJ should have compared
Markway’s opinion to the objective evidence, that mistake constitutes no more than harmless
error. See Byes v. Astrue, 687 F.3d 913, 917 (8th Cir. 2012) (“To show an error was not
harmless, [the Claimant] must provide some indication that the ALJ would have decided
differently if the error had not occurred.”). Further, in Exhibit 9A, Murray opined that
Henderson could perform sedentary work subject to certain restrictions—an opinion identical to
that of Dr. Debroy, which, as the Court has explained, the ALJ properly evaluated. Compare Tr.
719–24 (opinion of Dr. Debroy) with Tr. 734–36 (opinion of Dr. Murray). Accordingly, a proper
evaluation of Debroy’s opinion doubles as a proper evaluation of Murray’s, and even if the ALJ
should have separately discussed Murray’s opinion, her failure to do so constitutes harmless
error. See Byes, 687 F.3d at 917; doc. 14 (in which Henderson does not explain how the ALJ’s
discussion of Murray’s opinion, given her discussion of Debroy’s, would have yielded a different
decision).
At bottom, the ALJ considered the full range of medical opinions in the record, then
ascertained which opinions have the support of and consistency with the objective medical

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evidence. Tr. 632–37. That much suffices for this Court to affirm the ALJ’s decision: at this
stage, the Court does not consider the evidence de novo or second-guess the manner in which the
ALJ weighed various medical opinions and testimony. 42 U.S.C. §§ 1383(c)(3), 405(g); Reece
v. Colvin, 834 F.3d at 908. Accordingly, the Court finds that the ALJ properly evaluated the
prior administrative medical findings and medical opinions in the record.
B.

The ALJ properly considered Henderson’s subjective complaints about his
symptoms.

Finally, Henderson claims that the ALJ improperly considered his subjective complaints.
Doc. 14 at 10–15. An ALJ must consider several factors when evaluating whether a claimant’s
statements regarding her symptoms are consistent with medical and other evidence in the record.
20 C.F.R. § 404.1529(a), (c); SSR 16-3p, 2017 WL 5180304. Those factors—colloquially
referred to as the “Polaski factors” in the Eighth Circuit—include “the claimant’s prior work
history; daily activities; duration, frequency, and intensity of pain; dosage, effectiveness and side
effects of medication; precipitating and aggravating factors; and functional restrictions.”
Grindley v. Kijakazi, 9 F.4th 622, 630 (8th Cir. 2021) (citing Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1984)).
First, Henderson argues that the ALJ’s decision “lacks proper consideration of the
Polaski factors.” Doc. 14 at 14 (italics added). But as the Eighth Circuit has explained, an ALJ
“need not explicitly discuss each Polaski factor. It is sufficient if he acknowledges and considers
those factors before discounting a claimant’s subjective complaints.” Milam v. Colvin, 794 F.3d
978, 984 (8th Cir. 2015) (quoting Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004)).
Here, the ALJ’s decision affirmatively states that the ALJ considered all of Henderson’s
symptoms based on the requirements of Section 404.1529 and Social Security Ruling 16-3p,

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Tr. 633, and as discussed further below, the decision evidences that the ALJ considered each of
the factors.
Second, Henderson argues that the ALJ erred by failing “to make an express credibility
determination.” Doc. 14 at 15. But Section 404.1529 does not require the ALJ to do so. In fact,
Social Security Ruling 16-3p rescinded the sub-regulatory policy that discussed credibility. In
doing so, it expressly “eliminat[ed] the use of the term ‘credibility’” to “clarify that subjective
symptom evaluation is not an examination of an individual’s character” and to “more closely
follow [the] regulatory language.” SSR 16-3p, 2017 WL 5180304, at *2. Thus, the ALJ did not
err by failing to make a credibility determination when evaluating Henderson’s subjective
complaints.
Third, Henderson claims that the ALJ failed to “set forth the inconsistencies relied upon
to discredit[] [Henderson]’s testimony.” Doc. 14 at 15. But an ALJ need only “minimally
articulate reasons for crediting or rejecting evidence of disability.” Strongson, 361 F.3d at 1070
(citing Ingram v. Chater, 107 F.3d 598, 601 (8th Cir. 1997)). The Court finds that the ALJ’s
decision meets this standard.
The ALJ recounted Henderson’s testimony to the effect that he could only sit for 20
minutes at a time before needing to stand and stretch to alleviate discomfort; that he could not
stand for prolonged periods because his knee could not support him; and that he needed to sit
with his leg elevated for three hours each day to alleviate swelling in the joint. Tr. 633. But the
ALJ found that while Henderson’s “medically determinable impairments could reasonably be
expected to cause some of the alleged symptoms,” his “statements concerning the intensity,
persistence and limiting effects of these symptoms are not fully supported” by the record.
Tr. 634. As the ALJ’s citations to the record reflect, and as discussed above, substantial

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evidence exists to support that determination. At physical therapy shortly after Henderson’s an
initial evaluation diagnosed the injury as a contusion of the knee. Tr. 407. Though the pain in
his knee did not improve for some time, an x-ray performed about a year later found only
“minimal” arthritic changes in the knee. Tr. 374–75. An evaluation at the same time of the xray noted that Henderson retained full strength (“5/5”) in his left knee. Tr. 375.
Henderson underwent arthroscopic surgery on his left knee in October 2019 to repair a
tear in his medial meniscus. Tr. 601, 504, 509. Over the following months, the record reflects
that his strength and range of motion steadily improved with physical therapy. Tr. 515, 519. By
May 2020, he could walk with no more than a “mild” limp and exhibited full extension, 115
degrees of flexion, and no instability in his left knee. Tr. 942–43. At a physical examination the
following year, Henderson could walk without a cane with no more than a “slight” limp, could
walk on his heels and toes, could stand and hop on his right leg, could stand on his left foot,
could partially squat, and could stand from his chair without difficulty. Tr. 1113–14. Finally,
the ALJ considered that Henderson reported good pain relief from treatment with prescriptionstrength ibuprofen and cyclobenzaprine. Tr. 1111. Accordingly, the ALJ acknowledged and
considered the appropriate factors when evaluating Henderson’s subjective complaints under
Section 404.1529, and substantial evidence supports the ALJ’s conclusion that on the medical
evidence in the record, Henderson retains the RFC to perform sedentary work subject to the
conditions the ALJ provided.
VI.

Conclusion
For the reasons explained above, the Court finds that the ALJ’s detailed analysis and

citations to the record demonstrate that substantial evidence supports the ALJ’s RFC
determination. Accordingly, the Court affirms the decision of the Commissioner of Social

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Security and dismisses Henderson’s [1] Complaint with prejudice. A separate judgment
accompanies this Memorandum and Order.
So ordered this 28th day of August 2024.

STEPHEN R. CLARK
CHIEF UNITED STATES DISTRICT JUDGE

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