# Klopfenstein v. Berryhill

> District Court, E.D. Missouri · September 16, 2019

URL: https://www.frixlaw.com/law-library/cases/10231797

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** September 16, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PETER KLOPFENSTEIN, )
Plaintiff,
v. Case No. 4:18-CV-01106 JAR
ANDREW SAUL, Commissioner,
Social Security Administration, ' )
Defendant.
)
MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of
Social Security’s final decision denying Plaintiff Peter Klopfenstein’s application for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, ef seg. and
supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. §
1381, ef seq.
I. Background
Plaintiff applied for disability insurance benefits and supplemental security income
benefits on June 11, 2015, alleging disability as of November 1, 2011 due to multi-level
degenerative disc disease, left sciatica, lumbago, complex regional pain syndrome, and social
anxiety disorder. After his application was denied at the initial administrative level, Plaintiff
requested a hearing before an administrative law judge (“ALJ”). Following a hearing on July 31,
2017, the ALJ issued a written decision on October 11, 2017, denying Plaintiff's application.
1 Pursuant to Federal Rule of Civil Procedure 25(d), Andrew Saul is substituted for his predecessor,
Acting Commissioner Nancy A. Berryhill. No further action needs to 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).

Plaintiff's request for review by the Appeals Council was denied on May 9, 2108. Thus, the
decision of the ALJ stands as the final decision of the Commissioner. See Sims v. Apfel, 530
U.S. 103, 107 (2000).
II. Facts
The Court adopts Plaintiff's Statement of Uncontroverted Facts (Doc. No. 17-1) to the
extent they are admitted by the Commissioner (Doc. No. 22-1). The Court also adopts
Defendant’s Statement of Additional Facts. (Doc. No. 22-2). Together, these statements provide
a fair and accurate description of the relevant record before the Court. Additional specific facts
will be discussed as necessary to address the parties’ arguments.
I. Standards
The Court’s role on judicial review is to determine whether the ALJ’s findings are
supported by substantial evidence in the record as a whole. Johnson v. Astrue, 628 F.3d 991, 992
(8th Cir. 2011). Substantial evidence is less than a preponderance, but enough that a reasonable
mind would accept it as adequate to support the Commissioner’s conclusion. Chismarich v.
Berryhill, 888 F.3d 978, 979 (8th Cir. 2018) (per curiam). The Court may not reverse merely
because substantial evidence exists in the record that would support a contrary outcome or
because the court would have decided the case differently. Chaney v. Colvin, 812 F.3d 672, 676
(8th Cir. 2016). A reviewing court must consider evidence that both supports and detracts from

the ALJ’s decision. Id. If it is possible to draw two inconsistent positions from the evidence and

one of those positions represents the Commissioner’s findings, the court must affirm the decision
of the Commissioner. Id. In other words, a court should “disturb the ALJ’s decision only if it
falls outside the available zone of choice.” Papesh v. Colvin, 786 F.3d 1126, 1131 (8th Cir.
2015). A decision does not fall outside that zone simply because the reviewing court might have

reached a different conclusion had it been the finder of fact in the first instance. Id The Court
defers heavily to the findings and conclusions of the Social Security Administration. Hurd v.
Astrue, 621 F.3d 734, 738 (8th Cir. 2010).
To determine whether the ALJ’s final decision is supported by substantial evidence, the
Court is required to review the administrative record as a whole and to consider:
(1) The findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s physical
activity and impairment;
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon prior hypothetical questions
which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
The Social Security Act defines as disabled a person who 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). The
impairment must be “of such severity that [the claimant] 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, regardless of whether such
work exists in the immediate area in which he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has established a five-step process for determining whether a person
is disabled. 20 C.F.R. §§ 416.920(a), 404.1520(a). “If a claimant fails to meet the criteria at any

step in the evaluation of disability, the process ends and the claimant is determined to be not
disabled.” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v. Barnhart,
390 F.3d 584, 590-91 (8th Cir. 2004)).
First, the claimant must not be engaged in “substantial gainful activity” (“SGA”). 20
C.E.R. §§ 416.920(a), 404.1520(a). Second, the claimant must have a “severe impairment,”
defined as “any impairment or combination of impairments which significantly limits
[claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. §§ 416.920(c),
404.1520(c). “The sequential evaluation process may be terminated at step two only when the
claimant’s impairment or combination of impairments would have no more than a minimal
impact on [his or] her ability to work.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007)
(quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001)).
If the claimant has a severe impairment, the ALJ must determine at step three whether

any of the claimant’s impairments meets or equals an impairment listed in the Regulations. 20
C.E.R. §§ 416.920(d), 404.1520(d). If the claimant has one of, or the medical equivalent of, these
impairments, then the claimant is per se disabled without consideration of the claimant’s age,
education, or work history. Id.
If the claimant’s impairment does not meet or equal a Listing, the ALJ must determine
the claimant’s residual functional capacity (“RFC”). See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
12.00; 20 C.F.R. § 404,1520a(c)(3). RFC is an assessment of the claimant’s ability to perform
sustained work-related physical and mental activities in light of his impairments. SSR □□□□□□
The relevant mental work activities include understanding, remembering, and carrying out
instructions; responding appropriately to supervision and co-workers; and handling work

pressures in a work setting. 20 C.F.R. § 404.1545(c).

Fourth, the ALJ must determine whether, given his RFC, the claimant can return to his
past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f), 416.920(a)(4)(iv), 416.920(f);
McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011). If the claimant can still perform past
relevant work, he will not be found to be disabled; if not, the ALJ proceeds to step five to
determine whether the claimant is able to perform any other work in the national economy in
light of his age, education and work experience. 20 C.F.R. §§ 416.920(a)(4)(v). If the claimant
cannot make an adjustment to other work, then he will be found to be disabled. 20 C.F.R.
§§ 416.920(a)(4)(v), 404.1520(a)(4)(¥).
Through step four, the burden remains with the claimant to prove he is disabled. Steed v.
Astrue, 524 F.3d 872, 874 n3 (8th Cir. 2008). At step five, the burden shifts to the
Commissioner to establish that the claimant maintains the RFC to perform a significant number
of jobs within the national economy. Id. “The ultimate burden of persuasion to prove disability,
however, remains with the claimant.” Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000).
IV. Decision of the ALJ
The ALJ found Plaintiff had the severe impairments of lumbago?, small fiber neuropathy,
left wrist radial neuropathy, and generalized anxiety disorder, but that no impairment or
combination of impairments met or medically equaled the severity of one of the listed .
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 13). After considering the entire.
record, the ALJ determined that Plaintiff has the RFC to perform a reduced range of light work,
i.e., he can lift, carry, push, and pull twenty pounds occasionally and ten pounds frequently and
can sit, stand and/or walk six hours each in an eight-hour workday. He must never use his feet
for foot control operations, He can use his hands and arms frequently for handling and fingering
objects. He can occasionally climb ramps and stairs, but never climb ladders, ropes or scaffolds.
2 Lumbago is a general term used to describe mild to severe pain in the lower back.

He can occasionally balance, stoop, kneel, crouch, and crawl. He must avoid working at
unprotected heights and around moving mechanical parts, and operating a motor vehicle. He is
limited to work that involves only simple routine tasks and making simple work-related
decisions and can have occasional contact with the public, coworkers and supervisors. (Tr. 14-
15).
The ALJ found that Plaintiff is unable to perform any past relevant work (Tr. 24), but that
there are jobs in the national economy that he can perform given his age (24), education
(associates degree), work experience and RFC, such as production assembler, packager, and
laundry worker. (Tr. 24-25). Thus, the ALJ found Plaintiff was not disabled as defined by the
Act. (Tr. 25).
V. Discussion
In his appeal of the ALJ’s decision, Plaintiff raises three issues. First, Plaintiff argues the
AL] improperly weighed the medical opinion evidence, specifically the findings and opinions of
his treating physician Timothy Grove, Ph.D., and the state agency psychologist Marcia Toll,
Psy.D. (Doc. No. 17 at 2-7). Second, Plaintiff argues the ALJ’s RFC findings were not supported
by any medical evidence. (Id. at 7-8). Third, Plaintiff argues the ALJ’s credibility determination
was not supported by substantial evidence. (Id. at 8-14).
A. Credibility?
The Court will first consider the ALJ’s credibility determination, as the ALJ’s evaluation
of Plaintiff's credibility was essential to her determination of other issues. See Wildman v.
‘Astrue, 596 F.3d 959, 969 (8th Cir. 2010) (“[The plaintiff] fails to recognize that the □□□□□

3 Social Security Ruling 16-3p eliminated the term “credibility” from the analysis of subjective
complaints. However, the regulations remain unchanged; “Our regulations on evaluating symptoms are
unchanged.” SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017); 20 C.F.R. §§ 404.1529, 416.929.

determination regarding her RFC was influenced by his determination that her allegations were
not credible.”); Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005) (“The ALJ must first
evaluate the claimant’s credibility before determining a claimant’s RFC.”); Pearsall □□□
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002) (same).
In evaluating a claimant’s subjective complaints, the ALJ must consider: (1) the
claimant’s daily activities; (2) the duration, intensity, and frequency of pain; (3) the precipitating
and aggravating factors; (4) the dosage, effectiveness, and side effects of medication; (5) any
functional restrictions; (6) the claimant’s work history; and (7) the absence of objective medical
evidence to support the claimant’s complaints. Morris v. Berryhill, No. 1:17-CV-00212 NCC,
2019 WL 1129990, at *3 (E.D. Mo. Mar. 12, 2019) (citing Finch v. Astrue, 547 F.3d 933, 935
(8th Cir. 2008); Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). “The credibility of a □
claimant’s subjective testimony is primarily for the ALJ to decide, not the courts.” Id. (quoting
Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001)). “If an ALJ explicitly discredits the
claimant’s testimony and gives good reason for doing so, [a court] will normally defer to the
ALJ's credibility determination.” Id. (quoting Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir.
2003)).
The ALJ began with a detailed summary of Plaintiff s reports of constant pain in his legs,
feet, ankles, left knee, lower back, upper extremities, hands and forearms, as well as social
anxiety. (Tr. 15-17). Plaintiff testified he has been unable to work full-time since November
2011 because he cannot stand for longer than 20 minutes without swelling and sharp pain in his
feet; is unable to lift more than 10 to 15 pounds; and his ability to walk is severely limited due to
the issues with his lower extremities. Plaintiff also experiences tingling, numbness, and pain in
his arms and hands and tremors that increase with activity and lead to a loss of coordination and

difficulty sitting, standing for long periods of time, bending and twisting. (Tr. 40-41). Plaintiff
further testified he has anxiety in social situations that keeps him from leaving his house and
accomplishing things. (Tr. 47-48). However, the ALJ expressly found that while Plaintiff's
medically determinable impairments could reasonably be expected to cause his alleged
symptoms, his statements concerning the intensity, persistence and limiting effects of those
symptoms were not entirely consistent with the medical evidence in the record. (Tr. 23).
The ALJ first considered the objective medical findings by Plaintiff's treating physicians.
While recognizing that some examination findings showed abnormal or antalgic gait and
occasional use of a four-point cane (Tr. 22, 47, 266, 314, 329, 344, 347, 350, 353, 355, 358-59,
361-62, 364, 371, 374, 380, 386, 389, 392, 406, 412, 415, 421, 423, 427, 432, 434, 437, 709,
721, 743, 745, 750, 755, 794, 982, 1040, 1067, 1112), the ALJ noted that none of those findings
included significant deficits in strength, neurological function, or range of motion and in fact
indicated decreased or minimally antalgic gait and the ability to sit in and rise from a chair more
easily (Tr. 22, 356, 377, 383, 396, 398, 400, 402, 404, 408, 410, 413, 425, 429, 431), normal gait
(Tr. 305, 445, 1044), and no spine tenderness (Tr. 720, 811). The ALJ further noted there was no
medical evidence that Plaintiff was prescribed, or determined to require, the prolonged use of an
assistive device such as a cane. (Tr. 22). An MRI of the lumbar spine performed in 2012 showed
minimal central disc bulging, and no significant disc abnormality or foraminal stenosis (Tr. 22,
296); other diagnostic testing showed no abnormalities (Tr. 330, 835). Indeed, the record
indicates that Plaintiff has been seen by four surgeons, none of whom recommended surgical
intervention. (Tr. 982, 1039). Plaintiff was not frequently reported to be in acute distress. (Tr.
22). Further, his back pain was well controlled with medication management with no reported
side effects (Tr. 811, 862, 887), exercise and stretching, and aquatic therapy (Tr. 319-327,702-

05, 755-789). See Hensley v. Colvin, 829 F.3d 926, 933 (8th Cir. 2016) (impairment controlled
by treatment or medication cannot be considered disabling); Renstrom v. Astrue, 680 F.3d 1057,
1066 (8th Cir, 2012) (same).

_ As for Plaintiff's anxiety disorder, the ALJ acknowledged that Plaintiff's treatment
records reflected social phobia and high levels of anxiety that affect his ability to socialize and
sustain work activity. (Tr. 22). However, the ALJ noted that none of the records document
significant abnormalities or deficits in, among other things, Plaintiffs mood, affect, thought
processes, concentration, attention, persistence or pace, or activities of daily living. (Tr. 22, 319-

320, 344, 368, 374, 377, 380, 383, 393, 396, 398, 400, 402, 404, 406, 408, 410, 412, 415, 418,
429-432, 434, 437, 453, 474-487, 723, 744, 794, 811, 835, 887, 907, 927, 944, 964, 983, 1015,
1017-19, 1021, 1023-28, 1030-31, 1033-1038, 1044). Patient Health Questionnaires showed

scores consistent with minimal depressive symptoms. (Tr. 20, 815, 842, 866, 891, 910, 929, 947,
990). Plaintiff frequently reported improved anxiety (Tr. 324, 399, 401, 438, 533, 538, 550, 554,
556, 703, 1033), and that medication helped (Tr. 325, 483-84). See Guilliams v. Barnhart, 393
F.3d 798, 802 (8th Cir. 2005) (“Evidence of effective medication resulting in relief ... may
diminish the credibility of a claimant’s complaints.”). The ALJ further noted that Plaintiff had no
frequent or long-term psychiatric hospitalizations. (Tr. 22). ,
The ALJ also considered Plaintiff's noncompliance with treatment. The record shows that
Plaintiff did not attend all of his doctor appointments (Tr. 17, 22, 463, 492, 547, 552, 557, 577,
610, 614, 624, 634, 643, 1032) and at times did not take his medications as prescribed (Tr. 17-18,
322-24, 346, 407, 409, 411, 414, 417, 419-20). The ALJ noted that Plaintiff was hesitant to try a
spinal cord stimulator and declined an MRI of his lumbar spine. (Tr. 20, 908, 983). Plaintiff was
also noncompliant with the recommendations of his pain specialist, Christopher Beuer, M_D.,

that he wean himself off opioids and exercise more. (Tr. 20, 22, 23, 811, 833, 835, 860, 862, 887,
907-08, 927-28, 944-45, 964-65, 983). Dr. Beuer was concerned that Plaintiff's pain was
consistent with “opioid-induced hyperalgesia,” a condition whereby a patient’s sensitivity to pain
actually increases due to long-term use of opicid medications.’ Plaintiff argues there is no
medical evidence that weaning off narcotics would have provided him with additional or better
pain relief. In any event, the ALJ properly considered PlaintifPs noncompliance with treatment
recommendations, and properly considered Dr. Beuer’s statements that Plaintiff’s back pain was
well controlled with medication. (Tr. 860). See Vance v. Berryhill, 860 F.3d 1114, 1121 (8th Cir.
2017) (claimant’s inability to follow treatment recommendations weighed against his
credibility).
After reviewing this objective medical evidence, the ALJ concluded that Plaintiff's
statements concerning the limiting effects of his alleged symptoms were inconsistent with his
treatment history and clinical findings. (Tr. 23). An ALJ may determine that subjective
complaints of disabling pain are not credible in light of objective medical evidence to the
contrary, as the ALJ did here. Gonzales v. Barnhart, 465 F.3d 890, 895 (8th Cir. 2006).
Next, the ALJ found that Plaintiff's activities of daily living were inconsistent with total
disability. (Tr. 14-19). At the time of the hearing, Plaintiff was living on his own, taking some

. college level courses, tutoring, and playing guitar in a band. (Tr. 17). He has a valid drivers’
license and drives approximately three to four days a week. He is able to do laundry and
occasional light housekeeping, grocery shop three to four times a month, care for pets, read,
watch television, use a computer, play video games and manage his finances. He also spent time
with others two to three times a week, talking on the phone, texting, and visiting in person. (Tr.
4 See www .ncbi.nlm.nih.gov/pubmed/21412369 (last visited Aug. 14, 2019).

10

264). Activities such as preparing meals, doing housework, shopping for groceries, handling
money, watching television, and driving a car when necessary, among other things, show that
Plaintiff can work. Thomas, 881 F.3d at 676 (citing Roberson v. Astrue, 481 F.3d 1020, 1025
(8th Cir. 2007); Hacker v. Barnhart, 459 F.3d 934, 937-38 (8th Cir. 2006); Ellis v. Barnhart, 392
988, 995 (8th Cir. 2005)).
Plaintiff argues a claimant’s ability to do some limited daily activities does not constitute
substantial evidence that he or she has the functional capacity to engage in substantial gainful
activity, citing Hogg v. Shalala, 45 F.3d 276, 278 (8th Cir. 1995). While that is a correct
statement, the Court finds no error. The Eighth Circuit has recognized that its cases “send mixed
signals about the significance of a claimant’s daily activities in evaluating claims of disabling
pain,” Morris, 2019 WL 1129990, at *6 (quoting Clevenger v. Soc. Sec. Admin., 567 F.3d 971,
976 (8th Cir. 2009)); however, the caselaw generally suggests that where such daily activities are
inconsistent with a claimant’s subjective complaints, it is proper for the ALJ to consider them in
conjunction with other factors affecting the credibility of a Plaintiff's complaints, id. (citing
Halverson v. Astrue, 600 F.3d 922, 932-33 (8th Cir. 2010)). Even if Plaintiff is limited in
performing daily activities or needs assistance, it was not unreasonable for the ALJ to consider
his ability to perform them along with other relevant factors in assessing the credibility of his
allegations of disabling pain. See Delmater v. Berryhill, No. 2:16-CV-70-SPM, 2018 WL
1508868, at *10 (E.D. Mo. Mar. 27, 2018).
In sum, the Court finds that the ALJ conducted an express credibility determination,
considered several of the relevant factors, and gave good reasons for finding Plaintiff's
subjective complaints not entirely credible. The Court will therefore defer to that analysis. See
Renstrom, 680 F.3d at 1065 (“If an ALJ explicitly discredits the claimant’s testimony and gives

11

good reason for doing so, [the court] will normally defer to the ALJ’s credibility
determination.”).
B. Medical opinion evidence
Under the applicable social security regulations, the opinion of a treating physician is
normally entitled to controlling weight.° Thomas v. Berryhill, 881 F.3d 672, 675 (8th Cir. 2018)
(citation omitted). “However, the Commissioner may discount or even disregard the opinion of a
treating physician where other medical assessments are supported by better or more thorough
medical evidence,” and “[t]he Commissioner may also assign little weight to a treating
physician’s opinion when it is either internally inconsistent or conclusory.” Id.
The ALJ should consider several factors in weighing medical opinions from a treating
source, including the length of the treatment relationship and the frequency of examination.
Lawson v. Colvin, 807 F.3d 962, 965 (8th Cir. 2015) (quoting Casey v. Astrue, 503 F.3d 687,
692 (8th Cir. 2007)). Whether the ALJ gives the opinion of a treating physician great or little
weight, the ALJ must give “good reasons” for doing so. Reece v. Colvin, 834 F.3d 904, 909 (8th
Cir. 2016); 20 C.F.R. § 404.1527(c)(2)). Once the ALJ has decided how much weight to give a
medical opinion, the Court's role is limited to reviewing whether substantial evidence supports
this determination, not deciding whether the evidence supports the plaintiffs view of the
evidence. See Brown v. Astrue, 611 F.3d 941, 951 (8th Cir. 2010).

5 For claims filed on or after March 27, 2017, the regulations have been amended to eliminate the treating
physician rule. The new regulations provide that the Social Security Administration “will not defer or
give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior
administrative medica! finding(s), including those from your medical sources,” but rather, the
Administration will consider al! medical opinions according to several enumerated factors, the “most
important” being supportability and consistency. 20 C.F.R. § 404.1520c, Plaintiff filed his claim in 2015,
so the previous Regulations apply.

12

1. Timothy Grove, Ph.D.
Dr. Grove completed a Mental Residual Functional Capacity Questionnaire on June 28,
2017, wherein he opined that Plaintiff's social phobia and generalized anxiety would make
functioning in a work environment difficult and impossible for any length of time. Dr. Grove

further opined that due to the presence of both severe and chronic pain and severe anxiety, it was
unlikely that Plaintiff would be able to work on either a part-time or full-time basis at any time in
the near future. (Tr. 1121-1125). More specifically, Dr. Grove found Plaintiff had unlimited or
very good ability to remember work-like procedures; understand, remember, and carry out very
short and simple instructions; work in coordination with or proximity to others without being
unduly distracted; make simple work-related decisions; ask simple questions or request
assistance; accept instructions and respond appropriately to criticism from supervisors; interact
appropriately with the general public, coworkers, and supervisors; and maintain socially
appropriate behavior. (Tr. 1123). Dr. Grove assessed Plaintiff with limited but satisfactory ability
to maintain attention for two-hour segments; get along with coworkers or peers without unduly
distracting them or exhibiting behavioral extremes; and respond appropriately to changes in a
routine work setting. (Id.). Dr. Grove assessed Plaintiff with serious limitations in sustaining an
ordinary routine without special supervision and dealing with normal work stress; and an
inability to meet competitive standards in maintaining regular attendance and punctuality
(missing four or more days of work per month); completing a normal workday and workweek
without interruption from psychologically-based symptoms; and performing at a consistent pace
without an unreasonable number and length of rest periods. (Tr. 1123-24). Lastly, Dr. Grove
stated that Plaintiff's psychiatric condition exacerbated his experience of pain or other physical
symptoms,

13

The ALJ discussed Dr. Grove’s opinion and gave it little weight. (Tr. 21). The ALJ noted
a significant break in treatment of almost three years — from 2014 to 2017 — and only nine® visits
in 2017 prior to the completion of the MRFC, which called into question Dr. Grove’s opinion
that Plaintiff had the assessed limitations since 2010. (Tr. 21). The ALI also found Dr. Grove’s
opinion inconsistent with the record as a whole, including his own progress notes, and that if Dr.
Grove intended to state that Plaintiff could not perform any substantial gainful activity, such a
statement is an opinion regarding disabled status which is reserved to the Commissioner and thus
not entitled to controlling weight or special significance. (Tr. 21-22).
Plaintiff first argues the ALJ failed to discuss the extent, length, or frequency of his
treating relationship with Dr. Grove, and that a break in treatment is not a good reason for
affording less weight to Dr. Grove’s opinion given his extensive treatment history with Plaintiff

— over 200 sessions between 2010 and May 2014 and 10 visits over 4 months in 2017. (Doc. No.
17 at 3-4). The Court finds no error. Plaintiff correctly points out that the length of a treatment
relationship is a proper factor to consider in weighing the opinion of a treating physician. See 20
CF.R. §§ 404.1527(c)(2)(i), 416.927(c)(2)(i). However, the ALJ is not required to expressly
‘discuss every factor set forth in the regulations in assessing Dr. Grove’s opinion. See Derda v.
Astrue, No. 4:09-CV-01847-AGF, 2011 WL 1304909, at *10 (E.D. Mo. Mar. 30, 2011)
(“While an ALJ must consider all of the factors set forth in 20 C.F.R. § 404.1527[ ], he need not
explicitly address each of the factors.”). Failure to discuss each factor does not mean the ALJ did
not consider them. Moreover, the ALJ reasonably found that a nearly three-year break in
treatment cut against Dr. Grove’s opinion that Plaintiff had the assessed limitations since 2010.

LID record actually shows Dr. Grove saw Plaintiff 10 times from February 22, 2017 through June 27, 2017. (Tr.

14

Plaintiff also argues the ALJ incorrectly found Dr. Grove’s opinion inconsistent with the
record as a whole given the evidence of complaints of chronic pain in multiple areas of
Plaintiffs body, as well as years of psychotherapy and psychological treatment records
discussing his anxiety and pain. (Doc. No. 17 at 4-5). The Court acknowledges there is evidence
in the record tending to support Plaintiff's assertion that his impairments imposed disabling
limitations. However, the Court’s role is limited to reviewing whether substantial evidence
supports the weight given by the ALJ to a medical source, not deciding whether the evidence
supports the claimant’s view of the evidence. Brown, 611 F.3d at 951.
Here, there is substantial evidence to support the ALJ’s decision to discount Dr. Grove’s
opinions. As discussed above, the evidence showed a range of daily activities, noncompliance
with treatment, and examination findings that were inconsistent with disability, including Dr.
Grove’s own treatment notes showing Plaintiff was only mildly limited or unlimited in his ability
to remember work-like procedures; understand, remember and carry out very short and simple
instructions; work in coordination with or proximity to others without being unduly distracted;
make simple work-related decisions; maintain attention for two-hour segments; ask questions or
request assistance; accept instructions and respond appropriately to criticism from supervisors;
interact appropriately with the general public, coworkers and supervisors; respond appropriately
to changes in a routine work setting; and maintain socially appropriate behavior. (Tr. 1123).
This, the ALJ explains, is inconsistent with Dr. Grove’s opinion that Plaintiff's anxiety prevented
him from engaging in social activities or working. (Tr. 21.).
2. Marcia Toll, Psy.D.
An ALJ must consider the opinions of State agency psychological consultants according
to 20 C.F.R. §§ 404.1527 “because [ ] State agency medical or psychological consultants are

15

highly qualified and experts in Social Security disability evaluation.” 20 CER. § 404.1513a.
Therefore, like other medical source opinions, the ALJ must weigh the opinions of State agency
psychological consultants under the rules set out in 20 C.F.R. § 404.1527, providing appropriate
explanations for accepting or rejecting such opinions. SSR 96-5p.
Marcia Toll, Psy.D., a state agency psychological consultant, completed a Psychiatric
Review Technique Form and a Mental Residual Functional Capacity Assessment on September
30, 2015, finding Plaintiff had the severe mental impairment of anxiety disorder causing
moderate limitations in maintaining social functioning and opining that Plaintiff would be
capable of performing work in a limited social environment to further reduce stress. (Tr. 64-75),
The ALJ gave Dr. Toll’s findings and opinions some weight because she is a medical expert who
had an opportunity to review the evidence through the date of her determination, and because her
findings were generally consistent with the records as a whole, as of the date of her
determination. (Tr. 23).
Plaintiff argues the ALJ lacked substantial evidence to conclude that Dr. Toll’s opinion
was generally consistent with the record as a whole because she did not cite to any records or
reports, making it impossible to determine how she reached her conclusions and whether she
actually reviewed all of the record evidence. Plaintiff further argues the ALJ did not accurately
summarize Dr. Toll’s opinion, which included moderate limitations in Plaintiff's ability to carry
out detailed instructions, maintain attention and concentration for extended periods, sustain an
ordinary routine without special supervision, work in coordination with or proximity to others,
interact appropriately with the public, accept instruction and respond appropriately to criticism,
and maintain socially appropriate behavior. (Tr. 72-73).

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The Commissioner responds that Dr. Toll pointed to treatment notes indicating Plaintiff
was treated for anxiety, referenced a June 2015 treatment note saying his chronic anxiety was
controlled and stable and that he was not suicidal, noted negative depression and hallucination
findings, relied on a June 2014 examination revealing he was oriented with appropriate mood,
and noted additional findings of controlled anxiety, and included a description of his daily
activities. (Tr. 69, 81). The Psychiatric Review Technique Form also listed the evidence that was
in the record at the time of Dr. Toll’s review. (Tr. 65-67, 77-79). Further, the ALJ specifically
noted that Dr. Toll had the opportunity to review the available evidence in rendering her opinion.
(Tr. 23).
Contrary to Plaintiff's arguments, the ALJ accurately characterized Dr. Toll’s opinion as
finding Plaintiff had moderate social limitations and that he would be capable of performing
work in a limited social environment to further reduce stress (Tr. 23). Plaintiff fails to establish
that Dr. Toll’s assessment of moderate limitations in various categories conflicts with the ALJ’s
RFC for work involving simple, routine tasks; making simple work-related decisions; and having
occasional social contact. (Tr. 15, 72-73, 84-85). Indeed, in giving Dr. Toll’s opinion some
weight, the ALJ properly concluded that her opinion was generally consistent with the record as

a whole, which showed a wide range of daily activities, noncompliance with treatment,
examination findings that were inconsistent with disability, and improvement with treatment.
C. RFC
Lastly, Plaintiff argues the ALJ failed to include a narrative discussion describing how
the medical record evidence supports a finding that he can perform light work. Plaintiff argues
there was no state agency physician who reviewed his physical impairments and no consultative

exam was performed.

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A claimant’s RFC is “the most a claimant can do despite her limitations.” Moore v.
Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. §. 404.1545(a)(1)). Because a
claimant’s RFC is a medical question, it must be supported by some medical evidence of the
claimant’s ability to function in the workplace. Hensley, 829 F.3d at 932. However, “there is no
requirement that an RFC finding be supported by a specific medical opinion,” id, or that there
must be medical evidence that precisely supports each component of the RFC, Peterson v.
Colvin, No. 13-0329-CV-W-ODS, 2013 WL 6237868, at *4 (W.D. Mo. Dec. 3, 2013). See also
Davis v. Colvin, No. 3:14-CV-05075 MDH, 2015 WL 1964791, at *5 (W.D. Mo. May 1, 2015)
(“SSR 96-8P does not require an ALJ to list each RFC limitation followed by the specific
evidence that supports it; such a requirement would undermine the “all relevant evidence”
standard and would result in duplicative discussions of the same evidence.”). Instead, the ALJ
must determine a claimant’s RFC based on a review of the record as a whole, “including the
medical records, observations of treating physicians and others, and an individual’s own
description of his [or her] limitations.’” Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004)
(quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)).
Here, the ALJ evaluated all of the medical opinion evidence of record and adequately
explained his reasons for the weight given this evidence. For the reasons set out above,
substantial evidence on the record as whole supports the ALJ’s evaluation of the medical opinion
evidence.
VI. Conclusion
For all these reasons, the Court finds the ALJ’s decision is supported by substantial
evidence on the record as a whole, and, therefore, the Commissioner’s decision will be affirmed.
Accordingly,

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IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and
Plaintiff's Complaint is DISMISSED with prejudice. A separate Judgment will accompany this
Order.

Dated this 16" day of September, 2019.

J or i ROSS
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10231797. Public record. Not legal advice.