Koenig v. Colvin

Filing 15

ORDER. The Commissioner's decision is affirmed. Signed on 3/3/17 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JENNIFER KOENIG,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner
Of Social Security,
Defendant.

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Case No. 4:16-cv-00556-NKL

ORDER
Plaintiff Jennifer Koenig appeals the Commissioner of Social Security’s final decision
denying her application for disability and disability insurance benefits, and supplemental security
income. The decision is affirmed.
I.

Background
Koenig was born in 1985. She alleges she became disabled on April 1, 2010. Her date

last insured was June 30, 2013. The Administrative Law Judge held a hearing on January 1,
2015 and denied her application on January 29, 2015. The Appeals Council denied her request
for review on April 13, 2016. Koenig’s appeal to this Court concerns mental limitations.
A.

Medical history

On December 23, 2010, Koenig went to the emergency room, stating that her boyfriend
told her she had had a seizure. Koenig said she was not taking any medication for seizures but
had in the past. After being examined, Koenig told the nurse she wanted to leave, so she was
discharged.
On January 26, 2011, Koenig saw Henry Wisdom, D.O., at North Central Missouri
Mental Health Center. She reported that she had been diagnosed with bipolar disorder and had

issues with seizures. The doctor prescribed Lamictal and hydroxyzine.
Koenig saw Dr. Wisdom again on February 23, 2011 for a supportive psychotherapy
session. Dr. Wisdom noted that he was not “certain what [Koenig] want[ed]. On the one hand
she said she wants to get her kids back, and on the other hand she wants to have the medication
she was taking prior to going into a drug and alcohol facility[.]” Tr. 292. The doctor increased
Koenig’s medication dosages. He instructed her to continue therapy, as it seemed to help.
At a visit on March 23, 2011, Dr. Wisdom noted that Koenig was “able to concentrate.”
Tr. 293. She was well oriented and taking her medication. Dr. Wisdom also noted that Koenig
was participating in therapy, “with good results.” Id.
On April 20, 2011, Koenig saw Dr. Wisdom for another follow-up appointment.
Dr. Wisdom suggested involvement in local and church activities and vocational rehabilitation.
Koenig next saw Dr. Wisdom on May 18, 2011. The doctor did not change Koenig’s
medications.
Koenig went to the emergency room on June 19, 2012 with an injury to her left foot. Xrays showed multiple fractures. The next day, Koenig had surgery.
Koenig went to the emergency room on August 15, 2012, reporting a seizure that had
lasted for two minutes. She refused a drug test, but other tests indicated no cardiac event.
On December 7, 2012, Koenig saw Linda Lock at Truman Medical Center Behavioral
Health for a psychological examination and to begin receiving outpatient services. She reported
that she was required by Grundy County Family court to participate in mental health services.
Koenig said she had stopped taking her psychotropic medication two years earlier and wanted to
start them again. She said that since stopping them, she had headaches, anxiety, social anxiety,
mood swings, and depression. Her mental status examination was largely normal, although
Lock noted that Koenig’s “attention and concentration [were] impaired as evidenced by [her]
2 

stating that she cannot even watch TV and do something else at the same time.” Tr. 357. Her
memory was intact. The therapist recommended Koenig receive individual therapy and work
with employment services.
On December 12, 2012, Koenig saw Trena Willich, a community support specialist, at
Truman Medical Center. Koenig said that she did not have any income and wanted to work.
Willich noted that Koenig was talkative and polite with a bright affect.
Koenig had a psychiatric evaluation by Douglas Burgess, M.D., a staff psychiatrist at
Truman Medical Center, on December 18, 2012. Koenig reported that her mood was “up and
down” and that she was irritable and snapped at people for minor things. Tr. 348. She also
stated that her mood was “alright,” but then said she had been depressed for the past 2 to 3
weeks. Id. Koenig stated that medication had not been effective in the past because she did not
take it consistently, but she was interested in resuming. Koenig stated that she had used alcohol
and drugs in the past, but had not used alcohol for four months, or drugs since entering treatment
in 2009. Koenig’s behavior was cooperative, she was well oriented, and she displayed intact
memory. Dr. Burgess opined that Koenig’s mood lability was largely due to situational stressors
and assessed a GAF score of 38. He diagnosed bipolar disorder, major depressive disorder,
alcohol dependence under partial remission, and methamphetamine dependence in remission by
report. He prescribed sertraline and recommended psychotherapy.
On January 11, 2013, Koenig was discharged from the outpatient program, having
“completed all of her outpatient treatment goals.” Tr. 366. The discharge summary noted that
she had a stable transition plan and a stable relapse prevention plan.
On April 8, 2013, Koenig saw Jean Tadokoro, M.S.W., L.C.S.W., about substance abuse
issues and in an effort to regain custody of her son. On April 10, 2013, Koenig began attending
group therapy related to addiction recovery skills. Therapy continued several times a week
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through early June of 2013, when Koenig had a positive drug test. Koenig said she would not
comply with her revised treatment plan, so was discharged from the program.
On April 12, 2013, an x-ray of Koenig’s left foot showed an old healed fracture of the left
fourth and fifth metatarsal bones and post-operative changes, but was otherwise unremarkable.
On June 1, 2013, Koenig saw David Whitmer, M.D., at the Truman Medical Center
Emergency Department. She described experiencing an episode in which she felt nauseated,
sweaty, and like she was going to pass out. A physical examination was unremarkable and the
workup was negative.
On June 26, 2013, Koenig saw a psychiatrist, Muhammad Farhan, M.D., at Truman
Medical Center, stating that she was there for a medication refill. The doctor noted that Koenig
was “able to make reasonable eye contact,” was calm, and her memory was intact. Tr. 445. Her
mental status examination was largely normal. Dr. Farhan’s assessment was mood lability,
irritability, anger outbursts, and anxiety. He diagnosed mood disorder, not otherwise specified,
and amphetamine and alcohol dependence in remission, and assessed a GAF of 45-50. He
renewed Koenig’s medications.
Koenig saw Karlo Beltran, M.D., at Truman Medical Center on August 2, 2013 for
psychiatric care. Koenig stated that her medications caused her to have increased anxiety and
impaired her concentration. She said they made her “zombie like,” so she stopped taking them.
Tr. 448. Dr. Beltran renewed Koenig’s prescriptions for Neurontin, hydroxyzine, and Zoloft,
and added Risperdal, and discussed with her the importance of medication compliance. Tr. 453.
Koenig returned to Dr. Beltran on September 18, 2013, stating that she felt “better” and
her medication “kept [her] stable.” Tr. 454. She said her energy was better, her appetite was
good, and she was able to focus well. The doctor assessed a GAF score of 55. Tr. 458. At an
October 16, 2013 appointment, she said she felt good, she was able to focus well, and that the
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medication was keeping her stable. Tr. 459. The doctor assessed a GAF score of 60. Tr. 463.
At her November 6, 2013 appointment, she said she had been out of her medications for a week,
could feel the difference, and wanted to be back on them. Tr. 465. Dr. Beltran renewed her
prescriptions at each appointment and assessed a GAF of 60. Tr. 468.
At a December 2, 2013 appointment, Koenig told Dr. Beltran that felt “a little bit sick”
and “overworked,” but was doing “ok” with her medications. Tr. 470 and 474. Her psychiatric
evaluation continued to be unremarkable.

Dr. Beltran renewed her prescriptions, except

Risperdal, due to concern that Koenig might be pregnant, and assessed a GAF score of 55.
Tr. 474.
On January 21, 2014, Koenig told Dr. Beltran that she was feeling more nervous. Except
for her “anxious” mood, her mental status examination was unremarkable. Tr. 479. The doctor
adjusted her medication dosages, prescribed trazodone and prazosin for sleep, and assessed a
GAF score of 55. Tr. 480.
Koenig told Dr. Beltran on February 18, 2014 that she felt irritable. Her mental status
examination was unremarkable except for “anxious” mood. Tr. 485. Dr. Beltran discontinued
prazosin and adjusted the Zoloft dosage. Koenig’s symptoms and mental status exam were the
same on March 25, 2014.

Dr. Beltran adjusted the trazodone dosage, renewed the other

prescriptions, and assessed a GAF score of 50. Tr. 486.
On April 5, 2014, Koenig went to the emergency room, reporting a possible seizure. She
said she had approximately one seizure a year. Her physical examination was unremarkable.
She refused labs or imaging, and asked to leave.
Koenig returned to Dr. Beltran on June 3, 2014. She reported feeling anxious and having
difficulty focusing. She said she would be going to a private therapist. Her mental status
examination was unremarkable. Dr. Beltran continued her Neurontin, Zoloft, and trazadone;
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discontinued hydroxyzine; and stared Lamictal.
Koenig saw Patricia Caraballo-Osorio for a walk-in appointment for psychiatric care at
Truman Medical Center on June 23, 2014. She reported that her medications had been stolen
from her car and that she needed a refill.
Koenig saw Dr. Beltran on July 9, 2014. She said she felt “ok” and wanted to continue
her current medication regimen. Tr. 560. She denied any seizures, nightmares, or flashbacks.
Dr. Beltran increased her Lamictal dosage to twice a day.
In September 2, 2014, Koenig told Dr. Beltran she was pregnant, she was sleeping well,
her energy was good, and she had no difficulty focusing. Due to the pregnancy, Dr. Beltran
discontinued her medications, except Zoloft, which he decreased.
Koenig saw Dr. Beltran on October 1, 2014. She had had a miscarriage and agreed to
restart Lamictal. She felt okay, but tired, and was able to focus well. She denied feeling
depressed or having had any seizures.
On November 17, 2014, Koenig told Dr. Beltran she was doing “pretty good” and denied
any significant side effects from medications. Tr. 525.
officer on a temporary basis.

She reported working as a security

Dr. Beltran noted Koenig was able to focus well and was

complying with her medication regimen. He renewed the prescription for Lamictal and assessed
a GAF score of 60. Tr. 529.
B.

Koenig’s hearing testimony

Koenig testified during a hearing before the ALJ on January 20, 2015. She said that she
could not work due to bipolar disorder, which caused mood swings, anxiety, depression, and
manic phases; learning problems; and her left foot injury. She has a ninth or tenth grade
education, and is a certified nurse’s aide. She has a driver license. Koenig testified that she
could no longer work because she got tired throughout the day, did not get along with others, had
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anxiety and seizures, and had difficulty being on her feet. She said she has trouble with writing
and reading. Filling out paperwork and reading is frustrating due to comprehension difficulties.
She cannot make change. Koenig testified that she had short-term memory problems and does
not use her stove in case she forgets to turn it off. She has seizures about once a year.
Koenig has previously worked as a nurse’s aide, a laborer and inspector at a hog farm,
and a kitchen helper which involved preparing meals and cleaning up. She stated that since
April 1, 2010, her alleged onset date of disability, she has worked at a security job at a stadium in
Kansas City about three times a month, for four or five hours at a time. She sits by a door and
directs foot traffic to other parts of the stadium.
C.

Expert opinions

Raphael Smith, Psy. D., reviewed Koenig’s records and prepared a Psychiatric Review
Technique Form1 in March 2013. In the section relating to concentration, persistence, and pace,
Dr. Smith wrote that Koenig was “[m]oderately limited” in her ability to work in coordination
with or in proximity to others without being distracted by them. Tr. 80. With respect to social
interaction, Dr. Smith wrote that Koenig was “[m]oderately limited” in her ability to interact
appropriately with the public, and her ability to get along with coworkers without distracting
them or exhibiting behavioral extremes. Tr. 80-81. In the narrative portion of the PRTF,
Dr. Smith explained that while Koenig “may have difficulty working in close contact with the
public or others, she retains the ability to work in an environment which does not require close or
frequent interpersonal contacts.” Tr. 81. The ALJ noted that Dr. Smith was “a mental health
specialist with specialized understanding of the Social Security Act programs and their

1

The Psychiatric Review Technique Form is a standard document which generally
must be completed when a claimant alleges a mental impairment. Mapes v. Chater, 82 F.3d 259,
262 (8th Cir. 1996) (citing Pratt v. Sullivan, 956 F.2d 830 (8th Cir. 1992)). The PRTF mirrors the
listings for mental impairments set out in the Social Security regulations. Id. (citing 20 C.F.R.
pt. 404, subpt. P, app. 1, pt. A § 12.00).
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evidentiary support requirements, which entitles his opinion to more weight.” Tr. 19. Overall,
the ALJ gave Dr. Smith’s opinion “significant weight.” Tr. 23.
A vocational expert, Kristine Skahan, testified at the hearing before the ALJ. The ALJ
asked if any occupation existed in significant numbers for a hypothetical person of Koenig’s age,
education, and work experience who could stand and walk for four hours and sit for eight hours
of an eight-hour workday; understand, remember, and carry out instructions and tasks at an
SVP 3 level; can have occasional contact with coworkers, supervisors, and the general public,
but should not work with the public as a primary duty; could have no teamwork job duties; can
receive only oral instructions; cannot make change; could have no work at unprotected heights or
around dangerous machinery; could not operate a motorized vehicle; and could have no
concentrated exposure to flashing lights, high humidity, or high temperatures. Skahan testified
that the individual could work as a photocopy machine operator (SVP 2 level, unskilled, light);
document preparer (SVP 2 level, unskilled, sedentary); or final assembler of optical goods
(SVP 2 level, unskilled, sedentary). Tr. 57.2 All three jobs existed in significant numbers in the
state and national economies.

On cross examination, Skahan testified that if the same

hypothetical individual was also unable to stay on task for up to two and a half hours per day,

2

A job’s SVP level, or Specific Vocational Preparation level, denotes the “amount
of lapsed time required by a typical worker to learn the techniques, acquire the information, and
develop the facility needed for average performance[.]” DICTIONARY OF OCCUPATIONAL TITLES,
app. C, 1991 WL 688702. The SVP 2 level requires anything beyond short demonstration up to
and including one month of training; SVP 3 level requires between one and three months; and
SVP 4 level requires between three and six months. Id. The DOT lists an SVP level for each
occupation.
A job’s SVP level corresponds to its skill level. See 20 CFR §§ 404.1568 and 416.968.
SVP levels of 1-2 correspond to “unskilled” work; SVP of levels of 3-4 correspond to “semiskilled” work; and SVP levels of 5-9 correspond to “skilled” work. SSR 00–4P, 2000 WL
1898704, at *3 (Dec. 4, 2000).
Regulations also define skill level. See 20 CFR §§ 404.1568(a)-(c) and 416.968(a)-(c).
“Unskilled “work requires little or no judgment to perform simple duties that can be learned on
the job in a short amount of time, and “semi-skilled” work requires “some skills but does not
require doing more complex work duties,” while “skilled” work requires the use of
“judgment…[and] may” involve a “high level of complexity[.]”
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then there would be no competitive employment available to her.
Skahan also testified regarding the exertion and skill level of Koenig’s past relevant
work: nurse’s aide is SVP 4 level, semi-skilled, medium; farm laborer is SVP 2 level, unskilled,
heavy; inspector is SVP 2 level, unskilled, light; and kitchen helper is SVP 2 level, unskilled,
medium. Tr. 56.
D.

The ALJ’s decision

The ALJ found that during the relevant period, Koenig had severe impairments of
affective disorder, status post left foot fracture and surgery, and history of seizures. Koenig did
not claim to meet any Listings, and the ALJ did not find that she met any.
The ALJ found Koenig has the residual functional capacity (RFC):
[T]o stand or walk for 4 hours in an 8-hour workday and can
sit for 8 hours in an 8-hour workday. She can understand,
remember and carry out instructions and tasks at an SVP 3
level. She can have occasional contact with coworkers,
supervisors, and the general public. Working with the general
public should not be a primary job duty. She should not
perform teamwork types of job duties. She would need oral
instructions only. She could not do jobs that required making
change such as cashier. She cannot work at unprotected
heights or around dangerous machinery. She should not
operate motorized vehicles. She should not have concentrated
exposure to flashing lights, high humidity, or high
temperatures.
Tr. 20. The ALJ concluded Koenig was not capable of performing past relevant work as a
nurse’s aide, farm laborer, inspector, or kitchen helper. However, the ALJ concluded there were
jobs in significant numbers in the national economy that Koenig could perform, including
photocopy machine operator, document preparer, or final assembler of optical goods.
Accordingly, Koenig was denied benefits.
II.

Discussion
Koenig argues that in determining her RFC, the ALJ failed to adequately account for her
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moderate limitations in maintaining concentration, persistence, or pace. In particular, Koenig
complains that the ALJ “focused on nothing more than the skill level—or SVP—of the job,”
which, she argues, does not address her mental limitations. Doc. 8, p. 11. Therefore, she
concludes, the RFC is not based on substantial evidence. She asks for reversal and remand for
further proceedings.
The Court’s review of the Commissioner’s decision is limited to a determination of
whether the decision is supported by substantial evidence on the record as a whole. Milam v.
Colvin, 794 F.3d 978, 983 (8th Cir. 2015). If the Court finds that the evidence supports two
inconsistent positions and one of those positions represents the Commissioner’s findings, then
the Commissioner’s decision must be affirmed. Wright v. Colvin, 789 F.3d 847, 852 (8th Cir.
2015). For the reasons discussed below, the Court concludes that the RFC determination is
supported by substantial evidence on the whole record, and rejects Koenig’s arguments.
Residual functional capacity is what a claimant can still do despite physical or mental
limitations. 20 C.F.R. § 404.1545(a); Masters v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004);
Social Security Ruling 96-8p, 1996 WL 374184, *5 (July 2, 1996). An ALJ must formulate the
RFC based on all of the relevant, credible evidence of record. See Perks v. Astrue, 687 F.3d
1086, 1092 (8th Cir. 2012) (“Even though the RFC assessment draws from medical sources for
support, it is ultimately an administrative determination reserved to the Commissioner.”)
(quoting Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007)). The RFC determination must be
supported by substantial evidence, including at least some medical evidence. Dykes v. Apfel, 223
F.3d 865, 867 (8th Cir. 2000). Evidence relevant to the RFC determination includes medical
records, observations of treating physicians and others, and a claimant’s own description of her
limitations. McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000) (citation omitted).

The

claimant has the burden to prove his or her RFC. Pearsall v. Massanari, 274 F.3d 1211, 1217
10 

(8th Cir. 2001).
Koenig’s medical records show that when she was medication compliant and participated
in psychotherapy, her mental health symptoms improved. With medication, she frequently
reported to providers that she was doing okay, felt better, and could focus. Her providers also
noted that when she was medicated, her mental status exams were unremarkable, she was stable,
she could concentrate and focus, and her memory was intact.

They also noted that

psychotherapy helped her symptoms. “Impairments that are controllable with treatment do not
support a finding of total disability.” Pepper ex rel. Gardner v. Barnhart, 342 F.3d 853, 855 (8th
Cir. 2003) (internal quotations and citations omitted).
The ALJ considered evidence in the record that providers from time to time gave Koenig
GAF scores below 50.3 However, the ALJ explained that these scores were generally assessed
during periods when Koenig was abusing drugs, or else were inconsistent with contemporaneous
treatment notes and therefore did not reflect the severe kinds of problems that a GAF below 50
might otherwise suggest. See, e.g., Tr. 293 and 297.4

One psychiatrist who assessed a GAF

of 38 in December 2012 also noted that Koenig’s mood lability was largely due to situational
stressors. The record further reflects that Koenig was generally assessed with GAF scores above
50, indicating moderate symptoms, when she was compliant with treatment. Accordingly, on the
whole record, the GAF scores support the ALJ’s finding. See Henderson v. Berryhill, 2017 WL
628300, at *4 (W.D. Ark. Feb. 15, 2017) (ALJ’s observation that claimant’s mental health

3

A GAF score of 41 to 50 indicates “[s]erious symptoms (e.g. suicidal ideation,
severe obsessional rituals, frequent shoplifting) or any serious impairment in social,
occupational, or school functioning (e.g. no friends, unable to keep a job).” Diagnostic and
Statistical Manual of Mental Disorders, DSM-IV, 35 (4th ed.). A GAF score of 51 to 60
indicates “moderate symptoms (e.g. flat affect and circumstantial speech, occasional panic
attack) or moderate difficulty in social, occupational, or school functioning (e.g. few friends,
conflicts with peers or co-workers).” Id.
4
A 3/23/2011 session summary form signed by Dr. Wisdom includes a GAF score
of 44. Tr. 297. But the doctor’s treatment notes state that Koenig was able to concentrate, welloriented, taking her medication, and participating in therapy “with good results.” Tr. 293.
11 

symptoms improved with therapy, and that her GAF scores increased from 50 to 60 after
treatment, lent support to the ALJ’s conclusion that the claimant was not disabled).
Further, none of Koenig’s treating providers opined that she had any mental health
limitations. Dr. Smith, a mental health specialist with specialized understanding of the Social
Security Act programs, reviewed Koenig’s medical records and offered the only expert opinion
in evidence concerning mental limitations. The ALJ gave Dr. Smith’s opinion significant weight
and Koenig does not dispute it. Specifically, with respect to concentration, persistence, and
pace, Dr. Smith opined only that Koenig was moderately limited in her ability to work in
coordination with, or in proximity to, others without being distracted by them. With respect to
social interaction, Dr. Smith similarly concluded that Koenig was moderately limited in her
ability to interact appropriately with the public, and her ability to get along with coworkers
without distracting them or exhibiting behavioral extremes. In the narrative portion of the PRTF,
Dr. Smith explained that while Koenig “may have difficulty working in close contact with the
public or others, she retains the ability to work in an environment which does not require close or
frequent interpersonal contacts.” Tr. 81. In short, Dr. Smith concluded that Koenig can work
and his opinion with respect to her limitations was narrowly drawn.

The record contains no

expert medical opinion to support the conclusion that Koenig is totally disabled due to mental
health limitations.
The ALJ also considered Koenig’s own description of her symptoms and concluded that
her allegations were not entirely credible. Koenig testified that she avoided social interactions
and had difficulty making change, which the ALJ accounted for. However, the ALJ noted that
her claims of memory problems and concentration difficulties were inconsistent with her reports
to her doctors over time that she was doing well and could focus when she was medication
compliant.

“Subjective complaints may be discounted if the evidence as a whole is not
12 

consistent with the claimant’s testimony.” Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006).
The ALJ noted Koenig had not been compliant with treatment for mental impairments for a
period of years. An ALJ may properly consider the claimant’s noncompliance with a treating
physician's directions, Holley v. Massanari, 253 F.3d 1088, 1092 (8th Cir. 2001), including
failing to take prescription medications, Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999). See
also Banks v. Massanari, 258 F.3d 820, 825-26 (8th Cir. 2001) (ALJ properly discounted
claimant’s complaints of disabling depression as inconsistent with daily activities and failure to
seek additional psychiatric treatment). The ALJ further noted that Koenig had worked a security
job after her alleged disability onset date. Work performed during any period in which a
claimant alleges disability generally demonstrates an ability to perform substantial gainful
activity. Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005); 20 C.F.R. § 416.971. In addition,
although Koenig argues that she cannot pay attention for two and a half hours, Doc. 8, p. 14, or
even for two minutes, id., p. 15, she testified that she performs security jobs lasting four to five
hours at a time, Tr. 40. Substantial evidence on the whole record supports the ALJ’s assessment
of Koenig’s allegations concerning her symptoms and limitations.
Koenig takes issue with the ALJ’s express reference to SVP 3 level work in the RFC,
arguing that the ALJ “focused on nothing more than the skill level—or SVP—of the job,” which,
she argues, does not address her mental limitations. Doc. 8, p. 11. An ALJ may account for
deficiencies in concentration, persistence, or pace by limiting a claimant to jobs at a particular
SVP level. See, e.g., Vigil v. Colvin, 805 F.3d 1199, 1203 (10th Cir. 2015) (“The ALJ found at
step three that Vigil has moderate difficulties in concentration, persistence, and pace in social
functioning. The ALJ took these difficulties into account in formulating [the] RFC by limiting
the skill level of his work with an SVP one or two.”). As noted above, SVP 3 level work
corresponds to semi-skilled work, or work that requires some skill, but does not require doing
13 

complex work duties.

SVP 3 level work is therefore consistent with deficiencies in

concentration, persistence, or pace. However, the RFC in this case also expressly limited Koenig
to only occasional contact with coworkers, supervisors, and the general public; only oral
instructions; no teamwork types of job duties; not working with the general public as a primary
job duty; and no jobs that required making change such as cashier. As the expert evidence
indicated, Koenig’s deficiencies in concentration, persistence, and pace are narrow, and
specifically concern her inability to interact with others without being distracted. The ALJ also
accounted for evidence that Koenig avoided social interactions and had difficulty making
change. In other words, the RFC includes specific limitations relating to the types deficiencies
that are supported by substantial evidence on the whole record.

Accordingly, the RFC’s

reference to an SVP level does not render the RFC unsupported.5
This case is not like Newton v. Chater, 92 F.3d 688 (8th Cir. 1996), upon which Koenig
principally relies. In Newton, the Eighth Circuit held that a “limitation to simple jobs” in the
RFC did not adequately account for the claimant’s deficiencies in concentration, persistence, and
pace, because “simple jobs” did not necessarily address issues with pace. Id. at pp. 694-95.
Here, and as discussed above, the RFC includes specific limitations relating to Koenig’s specific
deficiencies. Therefore, Newton does not change the analysis.
Koenig also briefly notes that in assessing mental impairments, an ALJ must use the
special Psychiatric Review Technique described in 20 C.F.R. §§ 404.1520a and 416.920a.

5

Notwithstanding the RFC’s reference to SVP 3 level jobs, all the jobs that the
ALJ specifically identified in the decision as ones that Koenig could perform—photocopy
machine operator, document preparer, or final assembler of optical goods—were SVP 2 level,
unskilled jobs. As noted above, SVP 1 and 2 correlate to unskilled work, or work that requires
little or no judgment in order to perform simple duties. To the extent Koenig suggests an SVP
level of 3 is too high in relation to her deficiencies in concentration, persistence, or pace, she
would not be entitled to reversal because the ALJ has already identified jobs at the lowest skill
level. See Samons v. Astrue, 497 F.3d 813, 821-22 (8th Cir. 2007) (reversal requires prejudicial
error).
14 

Doc. 8, p. 10. See also SSR 96-8p,1996 WL 374184, at *4 (Soc. Sec. Admin. July 2, 1996)
(when evaluating the mental components of the RFC, the ALJ must consider “the various
functions contained in the broad categories found in paragraphs B and C of the adult mental
disorders listings in 12.00 of the Listing of Impairments, and summarized on the PRTF.”). The
ALJ did so here, considering the PRTF prepared by Dr. Smith and evaluating the paragraph B
and C criteria in the decision. Tr. 19.
The foregoing demonstrates that the RFC determination is supported by substantial
evidence on the whole record, including medical evidence. It was Koenig’s burden to prove she
had a more restrictive RFC and she failed to bear it.
III.

Conclusion
The Commissioner’s decision is affirmed.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: March 3, 2017
Jefferson City, Missouri

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