Campbell v. Berryhill

Filing 37

SOCIAL SECURITY ORDER. Signed on August 22, 2019, by District Judge Greg Kays. (Law Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
MARETHA CAMPBELL,
Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.

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No. 4:18-cv-0167-DGK-SSA

ORDER AFFIRMING IN PART AND REMANDING
THE COMMISSIONER’S DECISION
Plaintiff Maretha Campbell petitions for review of a partially favorable decision by
Defendant, the Commissioner of Social Security. Plaintiff applied for disability insurance benefits
and supplemental security income under Titles II and XVI of the Social Security Act, 42 U.S.C.
§§ 401-34, 1381-85. The Administrative Law Judge (“ALJ”) found that Plaintiff has been disabled
since August 4, 2014, due to her age, but not prior thereto. Plaintiff appeals this aspect of the
ALJ’s decision.
After carefully reviewing the parties’ arguments and the record as a whole, the Court finds
that substantial evidence supports the ALJ’s opinion that Plaintiffs’ impairments do not meet or
medically equal a listing. The Court also finds, however, that the ALJ failed to adequately explain
his conclusion with respect to Plaintiff’s RFC.

The Commissioner’s decision is therefore

AFFIRMED IN PART and REMANDED for further explanation.
Procedural Background
The complete facts and arguments are presented in the parties’ briefs and are repeated here
only to the extent necessary. Plaintiff filed for disability insurance and supplemental security

income in 2010, alleging a disability onset date of November 20, 2009. The Commissioner denied
the applications at the initial-claim level, and Plaintiff appealed the denial to an ALJ. The ALJ
issued an unfavorable decision, and the Appeals Council denied Plaintiff’s request for review.
Plaintiff then appealed the Commissioner’s decision to this Court, which, upon Defendant’s
motion, remanded the case under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
While that appeal was pending, Plaintiff filed two additional disability claims—identical
to the first—which the Commissioner also initially denied. The Appeals Council directed the ALJ
to consolidate these and the remanded claims and issue a new decision. The ALJ held two hearings
and, in November 2017, issued a “partially favorable” decision. He found that Plaintiff had been
disabled since August 4, 2014, but not prior thereto. The Appeals Council again declined to review
the matter, and so judicial review is now appropriate. See 42 U.S.C. § 1383(c)(3).
Standard of Review
A federal court’s review of the Commissioner’s decision to deny disability benefits is
limited to determining whether the Commissioner’s findings are supported by substantial evidence
on the record as a whole. Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016). Substantial
evidence is less than a preponderance but enough that a reasonable mind would find it sufficient
to support the Commissioner’s decision. Id. In making this assessment, a court considers evidence
that supports and detracts from the Commissioner’s decision. Id. A court must “defer heavily” to
the Commissioner’s findings and conclusions, Wright v. Colvin, 789 F.3d 847, 852 (8th Cir. 2015),
and may reverse the Commissioner’s decision only if it falls outside of the available zone of choice.
Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011). A decision is not outside this zone simply
because the evidence also points to an alternate outcome. Id.

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Discussion
The Commissioner follows a five-step sequential evaluation process1 to determine whether
a claimant is disabled, that is, unable to engage in any substantial gainful activity by reason of a
medically determinable impairment that has lasted or can be expected to last for a continuous
period of at least twelve months. 42 U.S.C. § 423(d)(1)(A). Here, the ALJ found that Plaintiff
suffered from several severe impairments, including, among others, morbid obesity, fibromyalgia,
and sleep apnea. The ALJ concluded that these impairments did not meet or medically equal the
severity of a listed impairment, and he found that Plaintiff retained the residual functional capacity
(“RFC”) to perform a limited range of light work. He also concluded that Plaintiff became disabled
on August 4, 2014, when she turned fifty.
Plaintiff contends that the ALJ erred in finding that her obesity and fibromyalgia did not
meet listings 1.02A and 14.09D, respectively, whether considered individually or in combination
with her other impairments. She also argues that the ALJ erred in formulating her RFC.
I.

The ALJ properly determined that Plaintiff’s impairments were not medically
equivalent to a listed impairment.

At step three, the ALJ determines whether a claimant “meets or equals an impairment
described in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.” Carlson v.
Astrue, 604 F.3d 589, 592 (8th Cir. 2010) (citing 20 C.F.R. § 416.920(a)(4)(iii)). “The listings
define impairments that would prevent an adult, regardless of his age, education, or work

“The five-step sequence involves determining whether (1) a claimant’s work activity, if any, amounts to substantial
gainful activity; (2) his impairments, alone or combined, are medically severe; (3) his severe impairments meet or
medically equal a listed impairment; (4) his residual functional capacity precludes his past relevant work; and (5) his
residual functional capacity permits an adjustment to any other work. The evaluation process ends if a determination
of disabled or not disabled can be made at any step.” Kemp ex rel. Kemp v. Colvin, 743 F.3d 630, 632 n.1 (8th Cir.
2014); see 20 C.F.R. § 416.920(a)–(g). Through step four of the analysis the claimant bears the burden of showing
that she is disabled. After the analysis reaches step five, the burden shifts to the Commissioner to show that there are
other jobs in the economy that the claimant can perform. King v. Astrue, 564 F.3d 978, 979 n.2 (8th Cir. 2009).
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experience, from performing any gainful activity, not just ‘substantial gainful activity.’” Sullivan
v. Zebley, 493 U.S. 521, 532 (1990) (emphasis in original). Hence, they “should not be read
expansively.” Johnson v. Astrue, 816 F. Supp. 2d 752, 774 (W.D. Mo. 2011) (internal quotation
and citation omitted). To establish that an unlisted impairment, or combination of impairments,
equals a listing, the claimant “must present medical findings equal in severity to all the criteria for
the one most similar listed impairment.” Sullivan, 493 U.S. at 531 (citing 20 C.F.R. § 416.926(a)).
A. Plaintiff’s obesity was not medically equivalent to listing 1.02A.
Obesity is not a listed impairment. Social Security Ruling (“SSR”) 02-1P2 provides that
the Commissioner will find it medically equivalent to listing 1.02A, which covers major joint
malfunction, if it results in “an inability to ambulate effectively.” Ineffective ambulation refers to
“an extreme limitation of the ability to walk” that generally requires the aid of hand-held assistive
devices. 20 C.F.R. pt. 404, subpt. P, app. 1 § 1.00(B)(2)(b)(1); Schultz v. Astrue, 479 F.3d 979,
982 (8th Cir. 2007). Examples of ineffective ambulation include the inability “to walk without the
use of a walker, two crutches, or two canes, . . . to walk a block at a reasonable pace on rough or
uneven surfaces, . . . to use standard public transportation; . . . to carry out routine ambulatory
activities, [and] to climb a few steps at a reasonable pace without the use of a single hand rail.”
App. 1 § 1.00(B)(2)(b)(2).
Substantial evidence supports the ALJ’s finding that Plaintiff’s obesity, even when coupled
with her other impairments, does not equal listing 1.02A. For example, in 2011 she told a
consultative examiner that she did not require an assistive device to help her ambulate. R. at 431.
The examiner reported that her “gait and station were fairly normal,” that she was “able to walk
on heels and toes,” and that she was able to tandem walk “without too much difficulty.” R. at 432.

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Although the Commissioner has rescinded SSR 02-1P, the Court applies the rule in effect at the time the agency
issued its decision. SSR 19-2P (S.S.A.), 2019 WL 2374244.

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In 2012, her rheumatologist observed that she was able to enter the clinic with ease. R. at 670.
Her gait was again reported normal in 2013, and, in July 2014, one month before the ALJ found
that she became disabled, an examiner reported that he did not believe that she needed an
ambulatory-assistance device. R. at 1654-55, 1798. He stated his belief that “she can stand and
walk for approximately thirty minutes at one time before taking a break,” and he noted that “[s]he
is able to travel and use public transportation without any difficulty.” R. at 1655. The following
year, an examiner noted that Plaintiff’s gait and walking were normal and that she was “able to
participate in [an] exercise program.” R. at 1738. Plaintiff points to evidence suggesting more
restricted ambulation, but the Court “may not reverse merely because substantial evidence also
exists that would support a contrary outcome.” Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001).
B. Plaintiff’s fibromyalgia was not medically equivalent to listing 14.09D.
Although fibromyalgia is not a listed impairment, it is a chronic condition that “may be
disabling.” Pirtle v. Astrue, 479 F.3d 931, 935 (8th Cir. 2007) (citing Garza v. Barnhart, 397 F.3d
1087, 1089 (8th Cir. 2005)).

SSR 12-2P governs the Commissioner’s consideration of

fibromyalgia. SSR 12-2P (S.S.A.), 2012 WL 3104869. It identifies listing 14.09D, which covers
inflammatory arthritis, as a possible equivalent. Listing 14.09D requires Plaintiff to prove repeated
manifestations of fibromyalgia that are medically equivalent to repeated manifestations of
inflammatory arthritis, with at least two constitutional symptoms and a marked limitation of daily
living or social functioning. App. 1 § 14.09(D); Wyman v. Berryhill, No. 4:17-cv-04174-VLD,
2018 WL 4016614, at *21-22 (D.S.D. Aug. 22, 2018) (explaining these requirements). Listinglevel severity is shown for 14.09D by “various combinations of complications of one or more
major peripheral joints or other joints, such as inflammation or deformity, extra-articular features,
repeated manifestations, and constitutional symptoms or signs.” App. 1 § 14.00(D)(6)(e)(ii).

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Plaintiff has not established that she meets this listing. She argues simply that she has
fibromyalgia, experiences fatigue and malaise, and that her impairments limit her social
functioning. But “not every diagnosis of fibromyalgia warrants a finding that a claimant is
disabled,” Perkins v. Astrue, 648 F.3d 892, 900 (8th Cir. 2011), and Plaintiff ignores entirely listing
14.09D’s requirement of “repeated manifestations of inflammatory arthritis.” McDade v. Astrue,
720 F.3d 994, 1001 (8th Cir. 2013) (“The claimant bears the burden of demonstrating that his
impairment matches all the specified criteria of a listing.” (emphasis added) (citation omitted));
see also Patrick v. Saul, No. 4:18-cv-04150-VLD, 2019 WL 3824254, at *29 (D.S.D. Aug. 15,
2019) (affirming the ALJ’s decision at step three because the claimant “never discusses the
requirements of Listing 14.09D and compares that criteria to her own medical findings and
explains how she meets or equals Listing 14.09D”). Thus, while the ALJ could have more
thoroughly explained his reasoning for finding that Plaintiff’s fibromyalgia does not equal listing
14.09D, the Court finds that Plaintiff has not carried her burden of showing otherwise.
II.

The ALJ failed to adequately explain his findings as to Plaintiff’s RFC.

The ALJ’s decisions at steps four and five are based on a claimant’s RFC—the most a
claimant can do despite her physical and mental limitations. 20 C.F.R. § 404.1545(a). An ALJ
determines a claimant’s RFC based on all relevant evidence, id., including medical records,
physicians’ opinions, and the claimant’s description of her limitations. Dunahoo v. Apfel, 241
F.3d 1033, 1039 (8th Cir. 2001). Here, the ALJ concluded that Plaintiff had the RFC to lift and
carry fifteen pounds occasionally and ten pounds frequently, to stand and walk for three hours out
of eight, and to perform occasional postural movements. He based this decision on the opinion of
Dr. Winkler, a non-treating and non-examining physician to whom the ALJ accorded great weight.
However, such opinions “ordinarily do not constitute substantial evidence on the record as a

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whole.” Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000); see also Shanto v. Barnhart, 328
F.3d 418, 427 (8th Cir. 2003). Moreover, the weight an ALJ should attribute to sources like Dr.
Winkler depends “on the degree to which they provide supporting explanations for their opinions.”
20 C.F.R. § 404.1527(c)(3). Even though Dr. Winkler reviewed Plaintiff’s medical history, she
did not explain how she reached her specific conclusions as to how much Plaintiff could lift and
how long she could sit and stand. And as far as the Court can tell, the ALJ appears simply to have
adopted Dr. Winkler’s conclusory findings. See Hilburn v. Colvin, 6:14-cv-03409-MDH, 2016
WL 356045, at *2 (W.D. Mo. Jan. 26, 2016) (finding that the opinion of a non-examining
psychologist did not provide an adequate basis for the claimant’s RFC).
Granted, an ALJ’s RFC formulation will be nonetheless upheld if substantial evidence
supports it. See Scott ex rel. Scott v. Astrue, 529 F.3d 818, 822 (8th Cir. 2008) (“[A]n ALJ’s failure
to adequately explain his factual findings is not a sufficient reason for setting aside an
administrative finding where the record supports the overall determination.” (internal quotations
and citation omitted)); see also Byes v. Astrue, 687 F.3d 913, 917 (8th Cir. 2012) (evaluating
whether the ALJ’s errors were harmless). The Commissioner argues that, here, objective physical
findings of Plaintiff’s motor strength, tendon reflexes, and joint range of motion support the RFC.
See, e.g., R. at 1654. Yet it is not clear that this evidence has any bearing on Plaintiff’s ability to
work, given that fibromyalgia is not characterized by objective symptoms, but by “widespread
pain in the joints, muscles, tendons, or nearby soft tissues.” SSR 12-2P. Hence, fibromyalgia
patients typically “manifest normal muscle strength and neurological reactions and have a full
range of motion.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 244 (6th Cir. 2007) (internal
quotations and citation omitted); accord Green–Younger v. Barnhart, 335 F.3d 99, 108-09 (2d Cir.
2003).

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Thus, as it stands the Court is unable to discern whether the ALJ relied on any evidence
other than Dr. Winkler’s unexplained opinion in formulating Plaintiff’s RFC. See Scott, 529 F.3d
at 822 (providing that the ALJ’s opinion must allow for meaningful judicial review). In light of
this deficiency, the Court will remand the proceeding for a proper explanation of the evidentiary
basis for Plaintiff’s functional limitations. If there is insufficient medical evidence in the record
to determine the RFC, the ALJ should consider ordering a consultative examination.3 Of course,
this is not to say that an award of benefits is appropriate or that Plaintiff’s myriad remaining
arguments, which the Court does not address, have merit. The Court simply requires additional
explanation of the evidence supporting the ALJ’s determination to conduct a meaningful review.
Conclusion
Accordingly, the Commissioner’s decision that Plaintiff was not disabled between
November 20, 2009, and August 4, 2014, is hereby AFFIRMED IN PART and REMANDED for
further explanation of the evidence supporting Plaintiff’s RFC.
IT IS SO ORDERED.
Date: August 22, 2019

/s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT

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The Court recognizes that such an examination may be of limited value, however, since the disputed portion of the
ALJ’s decision concerns whether Plaintiff was disabled between 2009 and 2014.

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