Weimer v. Saul
ORDER affirming the decision of the ALJ. Signed on 9/10/20 by District Judge Roseann Ketchmark. (Dollar, Jordan)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
MICHELLE LEANNE WEIMER,
Before the Court is Plaintiff’s appeal brought under 42 U.S.C. § 405(g) seeking review of
Defendant Commissioner of Social Security Administration’s (“SSA”) denial of disability benefits
as rendered in a decision by an Administrative Law Judge (“ALJ”). For the reasons below, the
decision of the ALJ is AFFIRMED.
Standard of Review
The Court’s review of the ALJ’s decision to deny disability benefits is limited to
determining if the decision “complies with the relevant legal requirements and is supported by
substantial evidence in the record as a whole.”
Halverson v. Astrue, 600 F.3d 922, 929
(8th Cir. 2010) (quoting Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008)). “Substantial evidence
is less than a preponderance of the evidence, but is ‘such relevant evidence as a reasonable mind
would find adequate to support the [ALJ’s] conclusion.’” Grable v. Colvin, 770 F.3d 1196, 1201
(8th Cir. 2014) (quoting Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001)). In determining
whether existing evidence is substantial, the Court takes into account “evidence that detracts from
the [ALJ’s] decision as well as evidence that supports it.” Cline v. Colvin, 771 F.3d 1098, 1102
(8th Cir. 2014) (citation omitted). “If the ALJ’s decision is supported by substantial evidence, [the
Court] may not reverse even if substantial evidence would support the opposite outcome or [the
Court] would have decided differently.” Smith v. Colvin, 756 F.3d 621, 625 (8th Cir. 2014) (citing
Davis, 239 F.3d at 966). The Court does not “re-weigh the evidence presented to the ALJ.”
Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (citing Baldwin v. Barnhart, 349 F.3d
Case 5:19-cv-06103-RK Document 14 Filed 09/10/20 Page 1 of 6
549, 555 (8th Cir. 2003)). The Court must “defer heavily to the findings and conclusions of the
[ALJ].” Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010) (citation omitted).
By way of overview, the ALJ found Plaintiff to have the following severe impairments:
degenerative disc disease; fibromyalgia; left fractured elbow; soft tissue injury and ACL repair of
right knee. The ALJ also determined that Plaintiff has the following non-severe impairments:
Gastroesophageal reflux disease, anxiety, and depression. However, the ALJ found that none of
Plaintiff’s impairments, whether considered alone or in combination, meet or medically equal the
criteria of one of the listed impairments in 20 CFR Pt. 404, Subpt. P, App. 1 (“Listing”).
Additionally, the ALJ found that despite Plaintiff’s limitations, Plaintiff retained the residual
functional capacity (“RFC”) to perform light work except: lift and carry 20 pounds occasionally
and 10 pounds frequently; stand and walk 4 hours out an 8-hour day; sit 6 hours out of an 8-hour
day; occasionally push and pull with her arms; never climb ladders, ropes, or scaffolds;
occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl; frequently reach in all
directions, but perform overhead work no more than occasionally; must avoid concentrated
exposure to vibrations, hazards, extreme cold, heat, wetness, and humidity. Although the ALJ
found that Plaintiff is unable to perform any past relevant work, the ALJ found that considering
Plaintiff’s age, education, work experience, and RFC, Plaintiff can perform jobs that exist in
significant numbers in the national economy.
On appeal, Plaintiff argues the RFC is not supported by substantial evidence, the ALJ’s
decision as to Plaintiff’s mental functional limitations is not supported by substantial evidence,
and the ALJ erred in not finding Plaintiff disabled at step five. The Court will address each
argument in turn.
The RFC is Supported by Substantial Evidence
Plaintiff first argues the RFC as to Plaintiff’s physical functional limitations is not
supported by substantial evidence. Specifically, Plaintiff argues the RFC allows for frequent
reaching, but no medical evidence supports this determination. There are two opinions of record
as to Plaintiff’s functional limitations: Dr. Schell’s and Dr. Danushkodi’s. The ALJ found Dr.
Schell’s opinion persuasive, except as to the portion regarding right overhead reaching. Dr. Schell
opined that Plaintiff was limited in pushing and pulling with the right extremity due to spinal and
right shoulder degeneration. (Tr. 178-79.) Dr. Schell also opined Plaintiff was limited to less than
Case 5:19-cv-06103-RK Document 14 Filed 09/10/20 Page 2 of 6
frequent reaching in all directions – front, laterally, and overhead – with the right upper extremity
due to degeneration. (Tr. 179.) The ALJ discounted this portion of Dr. Schell’s opinion by stating
“there is no evidence of right shoulder impairment since the amended onset date.” (Tr. 96.)
Plaintiff claims this was error and that the ALJ also erred because she failed to explain why the
opinion was not adopted.
ALJs are tasked with evaluating the evidence taken as a whole, resolving any
inconsistencies, and formulating a RFC finding that reflects a claimant’s functional limitations, as
consistent with the evidence. 20 C.F.R. §§ 404.1545, 404.1546. “It is the function of the [ALJ]
to weigh conflicting evidence and to resolve disagreements among physicians.” Cline v. Colvin,
771 F.3d 1098, 1103 (8th Cir. 2014) (citing Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007));
see also Finch v. Astrue, 547 F.3d 933, 936 (8th Cir. 2008) (same) (citing Wagner v. Astrue, 499
F.3d 842, 848 (8th Cir. 2007).
Here, the ALJ discussed the objective medical evidence, examination evidence, medical
opinions, Plaintiff’s treatment and response to treatment, Plaintiff’s daily activities, and other
evidence. (Tr. 90-96). The ALJ noted that Plaintiff had fairly benign findings at an orthopedic
visit for complaints of right-sided radicular symptoms, including only slightly decreased range of
motion of the right upper extremity. (Tr. 94, 584, 594.) The ALJ also noted that although MRI
was recommended for the cervical spine and right shoulder, there is no evidence Plaintiff
underwent any of the tests or followed up again for neck or radicular pain. (Id., Tr. 94.) Finally,
the ALJ noted that Plaintiff’s EMG nerve condition studies of the bilateral extremities in January
2018 were normal. (Id., Tr. 94, 578.) From this, some medical evidence supports the limitations
provided by the ALJ in the RFC and there was substantial evidence to support the ALJ’s RFC.
See Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001) (holding some medical evidence must
support the RFC); Smith, 756 F.3d at 625 (holding that if substantial evidence supports the ALJ’s
decision, the Court will not reverse even if substantial evidence would support the opposite
Plaintiff’s arguments regarding Dr. Danushkodi are largely duplicative of the arguments
above and the Court will reject them for the same reasons.
Plaintiff also argues the ALJ erred by failing to order a consultative exam to fully and fairly
obtain medical opinions as to Plaintiff’s functional limitations resulting from fibromyalgia, a
fracture to Plaintiff’s left elbow, soft tissue damage, and Plaintiff’s ACL injury. Plaintiff’s
Case 5:19-cv-06103-RK Document 14 Filed 09/10/20 Page 3 of 6
argument is without merit. It is the Plaintiff’s duty to provide medical evidence that she is disabled.
20 C.F.R. § 404.1512. However, when a crucial issue is underdeveloped, the ALJ has an
independent duty to develop the record. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
But if the evidence, taken as a whole, is sufficient to make a determination, the ALJ is not obligated
to order a consultative examination. 20 C.F.R. § 404.1519a(b).
Here, the ALJ found Plaintiff’s pain from her fibromyalgia was less limiting than alleged
by Plaintiff. (Tr. 94.) The ALJ noted fibromyalgia had not been formally diagnosed or treated
during the relevant period, that no physician had performed a fibromyalgia 18-point tender point
examination to confirm diagnosis, and that although Plaintiff was referred to a pain physician, no
evidence suggests Plaintiff followed up with one during the relevant period. From this, the ALJ
concluded Plaintiff’s pain from fibromyalgia was less severe than reported and had accounted for
such pain-related symptoms. (Id.)
As to Plaintiff’s left elbow, soft tissue, and ACL impairments, the ALJ noted Plaintiff has
responded well to treatment. In July 2018, Plaintiff injured her left elbow after tripping over a
laundry basket. (Tr. 95.) Plaintiff saw an orthopedist, who observed fairly routine findings,
including swelling and tenderness around the elbow, no gross instability, intact sensation and
motor function, and good pronation and supination. (Id., Tr. 724-25.) While the ALJ recognized
Plaintiff still suffers pain from her left elbow injury, the ALJ has provided sufficient limitations in
the RFC. In 2017, Plaintiff injured her knee after slipping on oil in her garage. She eventually
required reconstructive surgery. (Tr. 94.) However, in June 2018, an orthopedist noted that the
claimant was “doing great after right knee ACL reconstruction.” (Tr. 638.) Plaintiff also reported
that her knee “feels much more stable than before” with just mild stiffness and “no real
discomfort.” (Tr. 95, 638.) Finally, the ALJ made note of Plaintiff’s daily activities were
inconsistent with reports of disabling pain. (Tr. 95.) See Milam v. Colvin, 794 F.3d 978, 984 (8th
Cir. 2015) (daily activities can support an ALJ’s finding of not disabled). Therefore, substantial
evidence supports the ALJ’s RFC and the Court will not reverse on this point.
The ALJ’s Decision as to Plaintiff’s Mental Functional Limitations is Supported by
Next, Plaintiff argues the ALJ erred in three ways regarding her decision as to Plaintiff’s
mental functional limitations. First, Plaintiff argues the ALJ erred by failing to adopt the mild
mental limitations opined by Dr. Altomari. Dr. Altomari opined that Plaintiff has mild limitations
Case 5:19-cv-06103-RK Document 14 Filed 09/10/20 Page 4 of 6
in understanding, remembering, and applying information; mild limitations interacting with others;
mild limitations in concentration, persistence, or pace; and mild limitations in adapting or
managing oneself. (Tr. 176). Dr. Altomari also opined Plaintiff’s alleged depressive, bipolar, and
anxiety disorders were nonsevere. (Tr. 92, 175). The ALJ found this opinion persuasive. (Tr. 92.)
The ALJ found Plaintiff’s mental limitations to be non-severe and caused no more than minimal
limitations. (Tr. 91.) Substantial evidence supported the ALJ’s determination that Plaintiff’s
mental impairments caused no more than minimal limitations. Plaintiff also argues that the ALJ
still should have included the mild limitations found by Dr. Altomari in the RFC. However,
Because the ALJ found the mental impairment caused no functional impairments, the ALJ properly
excluded them from the RFC.
Plaintiff then argues the ALJ erred by rejecting the opinion of Ms. Cleverdon, Plaintiff’s
licensed clinical marriage and family therapist (“LCMFT”). The ALJ rejected Ms. Cleverdon’s
opinion because it was conclusory, inconsistent with her own counseling notes, and finally that
other treatment providers have also described normal mental status examinations on a consistent
basis. (Tr. 92.) Ms. Cleverdon’s own notes reflected routine clinical findings and indicated that
Plaintiff’s depression and anxiety are primarily linked to her physical conditions and also to
family-related circumstances. Additionally, the other treatment providers noted appropriate affect
and demeanor, normal mood, pleasant and cooperative attitude, and normal attention span and
concentration (Tr. 91, 396, 399, 402, 414, 451, 511, 514, 526, 529, 544, 561, 564, 568, 570, 605,
609, 627, 718, 721, 724, 736). Plaintiff also denied anxiety and/or depression on multiple
occasions (Tr. 587, 596, 613, 709, 717, 720, 723, 730). From these alone, there was substantial
evidence for the ALJ to reject the opinion of Ms. Cleverdon. Overall, there was substantial
evidence for the ALJ to find Plaintiff’s mental impairments caused no more than minimal
impairment, were not severe, and the ALJ did not err in excluding them from the RFC.
The ALJ did not Err at Step Five
Finally, Plaintiff argues the ALJ erred at step five by posing a flawed hypothetical to the
vocational expert and by failing to consider the Medical Vocational Guidelines in conjunction with
Plaintiff’s borderline age situation. As to the argument the hypothetical was flawed because the
RFC was flawed, the Court has concluded the RFC was supported by substantial evidence.
Therefore, the hypothetical was not flawed and provides no ground for reversal.
Case 5:19-cv-06103-RK Document 14 Filed 09/10/20 Page 5 of 6
As to the argument the ALJ should have considered Plaintiff’s borderline age pursuant to
20 C.F.R. § 404.1563(b), Plaintiff argues that because she was a few months away from turning
50, the ALJ should have considered her a person closely approaching advanced age pursuant to
20 C.F.R. § 404.1563. In this case, Plaintiff was 48 at the time of onset and 49 at the time of the
ALJ decision. An ALJ’s decision to apply 20 C.F.R. § 404.1563(b) is discretionary. Byes v.
Astrue, 687 F.3d 913, 917–18 (8th Cir. 2012) (“section 404.1563(b) does not require that an ALJ
apply an older age category in borderline situations.”). Further, at the time of the ALJ decision,
Plaintiff was 10 months away from turning 50. See Id. (holding eight months to be too distant to
be considered borderline.) Thus, Plaintiff was not in borderline situation, and even if she was, the
ALJ was not obligated to apply the older age category. Therefore, the ALJ did not err at step five.
Having carefully reviewed the record before the Court and the parties’ submissions on
appeal, the Court concludes that substantial evidence on the record as a whole supports the ALJ’s
decision for the reasons set forth above.
IT IS THEREFORE ORDERED that the decision of the ALJ is AFFIRMED.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: September 10, 2020
Case 5:19-cv-06103-RK Document 14 Filed 09/10/20 Page 6 of 6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?