Harris v. O'Malley

Filing 13

OPINION, MEMORANDUM AND ORDER (See Full Order). IT IS HEREBY ORDERED that this matter is remanded to the Social Security Administration for the ALJ to either include the unchanging instructions limitation in the RFC or explain why she did not do so. IT IS FURTHER ORDERED that this matter is reversed and remanded for further proceedings. Signed by District Judge Henry Edward Autrey on 3/10/2025. (HMA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LAURA ELIZABETH HARRIS,

)
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Plaintiff,
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v.
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LELAND DUDEK,
)
Acting Commissioner of Social Security, )
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Defendant.
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Case No. 4:23CV1705 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court for judicial review of the final decision of the
Commissioner of Social Security denying the application of Plaintiff for
supplemental security income under Title XVI of the Social Security Act, 42
U.S.C. §§ 1381-1385. The Court has reviewed the filings and the administrative
record as a whole, which includes the hearing transcript and medical evidence. The
decision of the Commissioner will be reversed.
INTRODUCTION
Plaintiff applied for Supplemental Security Income on April 23, 2021, and

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Leland Dudek became the Commissioner of Social Security on February 16, 2025. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Leland Dudek should be substituted 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).

Disability Insurance Benefits on April 26, 2021. (Tr. at 581-586, 587-588). She
was initially denied on October 28, 2021. (Tr. at 414-422) and requested a hearing
with the ALJ on January 26, 2022. (Tr. at 503-507). Plaintiff’s initial hearing took
place October 17, 2022. The ALJ issued an unfavorable decision on December 23,
2022. (Tr. at 387-412, 361-366). Plaintiff filed a Request for Review of Hearing
with the Appeals Council on January 31, 2023, which was denied on October 24,
2023. (Tr at 7-10, 1-6). Plaintiff has exhausted all administrative remedies.
Plaintiff seeks judicial review of the final decision of the Commissioner of
Social Security denying her application for supplemental security income (SSI)
under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1385. Plaintiff
argues that the administrative law judge (ALJ) erred in failing to adopt a limitation
of “unchanging simple instructions,” as found by two state agency consultants,
whose opinions the ALJ found persuasive.
BACKGROUND
Plaintiff’s application alleged a disability onset date of December 31, 2012
(Tr. 581-86). The state agency denied her claims initially and on reconsideration
(Tr. 413-443, 450-69). Thereafter, Plaintiff requested a hearing before an
administrative law judge (ALJ) (Tr. 503-07), which was held on October 17, 2022
(Tr. 387-412). The ALJ found Plaintiff had the severe impairments of connective
tissue disease, plantar fasciitis, neuropathy, major depressive disorder,
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generalized anxiety disorder, post-traumatic stress disorder (PTSD), attention
deficit hyperactivity disorder (ADHD), and a somatoform disorder (Tr. 366-67),
but she did not have an impairment or combination of impairments that met or
medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1 (Tr. 367-69). Further, Plaintiff retained the residual functional capacity (RFC) to
perform sedentary work as defined in 20 C.F.R. § 416.967(a) with the following
additional mental limitations:
[S]he is able to learn, remember and carry out simple, routine tasks and
make simple routine work related decisions. She is able to use reason and
judgment to complete those tasks in a timely manner and at an appropriate
pace while ignoring or avoiding distractions. She must avoid more than
gradual changes in job settings and duties. She is able to work close to or
with others without distracting them while performing simple, routine tasks.
She is able to have occasional interactions with supervisors and co-workers,
but she must avoid contact with the general public. She is able to work a full
workday without needing more than the standard breaks.
(Tr. 369-76). (emphasis added). After considering the testimony of the vocational
expert with a hypothetical including the above limitations, the ALJ found Plaintiff
had the residual functional capacity (RFC) to perform jobs that exist in significant
numbers in the national economy, including the representative occupations of
assembler and product checker (Tr. 376-77). The ALJ found that Plaintiff was not
disabled from April 23, 2021.

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In making this determination, the ALJ found Dr. Brandhorst and Dr.
Morgan’s opinions persuasive.
DISCUSSION
As long as substantial evidence in the record as a whole supports the ALJ's
decision, a reviewing court must affirm. Grindley v. Kijakazi, 9 F.4th 622, 627 (8th
Cir. 2021). “Substantial evidence is less than a preponderance, but enough that a
reasonable mind might accept it as adequate to support a decision.” Kirby v.
Astrue, 500 F.3d 705, 707 (8th Cir. 2007). The court “do[es] not reweigh the
evidence or review the factual record de novo.” Naber v. Shalala, 22 F.3d 186, 188
(8th Cir. 1994). If, after reviewing the evidence, “it is possible to draw two
inconsistent positions from the evidence and one of those positions represents the
[ALJ's] findings, [the court] must affirm the decision.” Robinson v. Sullivan, 956
F.2d 836, 838 (8th Cir. 1992).
Plaintiff argues that the ALJ erred by failing to adopt an RFC limitation
found by Drs. Brandhorst and Morgan without explanation. When determining
RFC, the ALJ “evaluate[s] the persuasiveness of medical opinions” considering the
following factors: (1) supportability, i.e., “the objective medical evidence and
supporting explanations presented by a medical source” in support of his or her
opinion; (2) consistency with “evidence from other medical sources and
nonmedical sources”; (3) the relationship between the opinion's author and the
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claimant, such as whether the opinion is from a treating source; (4) whether the
medical opinion is by a specialist; and (5) “other factors that tend to support or
contradict a medical opinion,” such as “evidence showing a medical source has
familiarity with the other evidence in the claim or an understanding of [the Social
Security Administration's] policies and evidentiary requirements.” 20 C.F.R. §§
416.920c(a), (c). The ALJ is required to “articulate how [the ALJ] considered the
medical opinions” and “explain how [the ALJ] considered the supportability and
consistency factors,” the two most important factors. 20 C.F.R. §§ 40416.920c(a),
(b)(2).
Here, the ALJ noted both state agency consultants’ opinions were generally
supported by a review and summary of the medical evidence available at the time
of the opinions. The ALJ did not acknowledge that these doctors limited Plaintiff to
unchanging instructions. However, the ALJ further limited Plaintiff to performing
simple, routine tasks, making simple work-related decisions and using
reason/judgment to complete those tasks in a timely manner and at an appropriate
pace while ignoring or avoiding distractions. The ALJ did not explain why she
thereafter concluded that Plaintiff must avoid more than gradual changes in the job
setting, rather than the limitation of unchanging instructions.
The ALJ's RFC limiting claimant to work involving no more than gradual
changes does not account for Drs. Brandhorst and Morgan’s limitation to work
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with unchanging instructions. Here, the ALJ ultimately identified jobs Plaintiff
could perform with gradual changes. The ALJ's RFC and the persuasive opinions
cannot be harmonized.
The purpose of the regulations (requiring the ALJ to explain persuasiveness)
“would be undermined if the ALJ could state a medical opinion was persuasive,
well-supported, and consistent with the record, without adopting the limitations
contained in that opinion or otherwise addressing them.”???Kathryne L. v. O'Malley,
No. 24-CV-4011-LTS-KEM, 2024 WL 4819441, at *3 (N.D. Iowa Nov. 18, 2024),
report and recommendation adopted, No. C24-4011-LTS-KEM, 2024 WL 4988979
(N.D. Iowa Dec. 5, 2024); Dowden v. Saul, No. 19-CV-2054-KEM, 2020 WL
6470180, at *7 (N.D. Iowa Nov. 3, 2020). District courts in this circuit agree. See
Kathryne L. v. O'Malley, No. 24-CV-4011-LTS-KEM, 2024 WL 4819441, at *3;
Carey v. O'Malley, No. 4:23-CV-00860-NCC, 2024 WL 4238691, at *5 (E.D. Mo.
Sept. 19, 2024) (collecting cases and noting “courts have frequently found remand
required where an ALJ finds a medical opinion persuasive, yet declines to include
some of the limitations found in that opinion in that RFC and does not explain
why” (quoting Bedore v. Kijakazi, No. 4:22-CV-567-SPM, 2023 WL 6064854, at
*4-5 (E.D. Mo. Sept. 18, 2023))); Mark S. E. v. Kijakazi, No. 20-CV-1954 (JFD),
2022 WL 834513, at *2, *5 (D. Minn. Mar. 21, 2022) (remanding for ALJ—whose
RFC limited claimant to “simple, routine” tasks—to “either [add] the one-to-two
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step task limitation in the RFC” contained in the persuasive medical opinions “or
explain why she did not do so”); Batson v. Kijakazi, No. 20-03251-CV-S-WBG,
2022 WL 501405, at *4 (W.D. Mo. Feb. 18, 2022) (“When an ALJ finds a medical
opinion is persuasive, supported by objective evidence, and consistent with the
record, any limitations in the medical opinion should be included in the ALJ's
RFC.) This is a logical extension of the Eighth Circuit's decision in Gann v.
Berryhill, in which the court held the ALJ erred by assigning “significant weight”
to medical opinions, but then failing to include in the RFC “adaptation restrictions”
recommended by those medical opinions.???864 F.3d 947, 952-53 (8th Cir. 2017).
Gann involved the old regulations for evaluating medical opinions, but the change
from evaluating opinions by assigning weight to determining persuasiveness does
not affect Gann’s reasoning. Under both the old and new regulations, the ALJ must
adequately explain the failure to follow a medical opinion. By identifying an
opinion as consistent with the evidence (and “persuasive” or entitled to “significant
weight”), but then formulating a less restrictive RFC than that opinion, the ALJ
fails to explain his or her reasoning for failing to adopt some of the limitations
contained in the medical opinion, as required by both the old and new regulations.
The Commissioner argues Plaintiff is seeking a verbatim incorporation of
the terminology used by the persuasive doctors’ opinions. This position is simple
too simple of an explanation. While the ALJ need not rely on a single medical
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opinion nor incorporate every limitation from a medical opinion into the ALJ's
RFC, “once a medical opinion is found to be persuasive, an ALJ must explain any
inconsistencies between the limitations found in that opinion and the ultimate
RFC.” Carey, 2024 WL 4238691, at *5. While the ALJ may ultimately explain the
discrepancy between her RFC and the unchanging instructions limitations based on
other findings in the doctors’ opinions, the ALJ’s current decision is not supported
by the record as a whole.
CONCLUSION
Based on the forgoing analysis, this matter must be remanded for the
purpose of explaining the failure to incorporate the unchanging instructions
limitation in the RFC.
Accordingly
IT IS HEREBY ORDERED that this matter is remanded to the Social
Security Administration for the ALJ to either include the unchanging instructions
limitation in the RFC or explain why she did not do so.
IT IS FURTHER ORDERED that this matter is reversed and remanded for
further proceedings.
Dated this 10th day of March, 2025.

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________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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