Whitworth v. Berryhill

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

NORTHERN DIVISION

CYNTHIA M. WHITWORTH, )

)

Plaintiff, )

)

Vv. ) Case No. 2:18-CV-00034 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 Cynthia Whitworth’s application for disability

insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seg. and

supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. §

1381, et seq.

I. Background

Plaintiff applied for disability insurance benefits and supplemental security income

benefits on July 17, 2014, alleging disability as of February 14, 2014? due to anxiety, depression,

severe spinal stenosis, reversal of cervical lordosis, and Hodgkin’s lymphoma. After her

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).

2 At the hearing before the ALJ, Plaintiff's counsel asked to amend Plaintiff's onset date of disability to

September 28, 2014 based on Dr. Denise Trowbridge’s opinion that Plaintiff was capable of sedentary

work, prior to the HD symptoms. (Tr. 99, 111, 154, 171). The ALJ’s decision does not reflect the

amended onset date; rather, the ALJ evaluated Plaintiff's claims from February 14, 2014. (Tr. 19).

Plaintiff does not argue the ALJ erred in this regard and in any event, an amendment of the onset date

would have had no impact on Plaintiff's RFC given that the ALJ considered the entire record. Bauer □□

Soc. Sec. Admin., 734 F. Supp. 2d 773, 802 (D. Minn. 2010) (citations omitted).

application was denied at the initial administrative level, Plaintiff requested a hearing before an

administrative law judge (“ALJ”). Following a hearing on March 28, 2017, the ALJ issued a

written decision on September 14, 2017, denying Plaintiff's application. Plaintiff's request for

review by the Appeals Council was denied on April 30, 2018. Thus, the decision of the ALJ

stands as the final decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000).

Il. Facts

The Court adopts Plaintiff's Statement of Facts (Doc. No. 17-1) to the extent they are

admitted by the Commissioner (Doc. No. 27-1). The Court also adopts Defendant’s Statement of

Additional Facts. (Doc. No. 27-2). 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.

Ill. 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.F.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.F.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 96—8p.

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).

At step four, 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(, 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)(v).

Through step four, the burden remains with the claimant to prove he is disabled.

Brantley, 2013 WL 4007441, at *3 (citation omitted). 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.” Meyerpeter v. Astrue, 902 F. Supp.2d 1219, 1229 (E.D.

Mo. 2012) (citations omitted).

IV. Decision of the ALJ

The ALJ found Plaintiff had the severe impairments of degenerative disc disease together

with Hodgkin’s lymphoma history status post curative treatment?, but that no impairment or

combination of impairments met or medically equaled the severity of one of the listecl

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 19). After considering the entire

record, the ALJ determined that Plaintiff has the RFC to perform light work except that she

3 The ALJ also determined that Plaintiff had the nonsevere impairments of headaches, carpal tunnel

syndrome and “medically determinable” mental impairments. (Tr. 19-20).

should never climb ropes, ladders or scaffolds, but is able to occasionally climb ramps or stairs.

The ALJ further determined that Plaintiff can occasionally stoop, kneel, crouch and crawl,

frequently handle, finger and feel with her bilateral upper extremities, and is limited to tasks in

the workplace consistent with a specific vocational preparation (SVP) of no more than 4

(semiskilled). (Tr. 21-22).

The ALJ found that Plaintiff is unable to perform any past relevant work (Tr. 28), but that

there are jobs in the national economy that she can perform given her age, education, work

experience and RFC, such as stock checker apparel and parking lot attendant (Tr. 29). The ALJ

further found that Plaintiff could perform sedentary and unskilled jobs with a SVP of two, such

as optical goods assembler, document preparer, weight tester, and surveillance system monitor.

(Tr. 29-30). Thus, the ALJ found Plaintiff was not disabled as defined by the Act. (Tr. 30).

V. Discussion

In her appeal of the ALJ’s decision, Plaintiff raises two issues. First, Plaintiff argues the

ALJ erred in failing to determine whether her peripheral neuropathy secondary to chemotherapy

and lumbar stenosis were severe impairments. (Doc. No. 17 at 5-8). Second, Plaintiff argues the

ALJ erred by failing to properly evaluate the medical opinions of record regarding her physical

limitations. (Id. at 9-11).

A. Severe impairment

At Step Two of the evaluation process, the ALJ must determine if a claimant suffers from

a severe impairment. A severe impairment is an impairment or combination of impairments that

significantly limits a claimant’s physical or mental ability to perform basic work activities. See

20 C.F.R. §§ 416.920(c), 416.921. Basic work activities are those “abilities and aptitudes

necessary to perform most jobs,” including (1) physical functions such as walking, standing,

sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing,

hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4)

use of judgment; (5) responding appropriately to supervision, co-workers, and usual work

situations; and (6) dealing with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b),

416.921(b). Plaintiff bears the burden of establishing that her impairments are severe. Kirby v.

Astrue, 500 F.3d 705, 707 (8th Cir. 2007) (citing Mittlestedt_v. Apfel, 204 F.3d 847, 852 (8th

Cir. 2000)). Although severity is not an onerous requirement to meet, it is also “not a toothless

standard.” Id. at 708.

Plaintiff argues the medical record documents diagnoses of peripheral neuropathy

secondary to chemotherapy and lumbar stenosis, and that the ALJ erred in not considering these

conditions to be severe impairments. In support of her argument, Plaintiff references a March 27,

2015 consultative examination performed by Alan Spivak, M.D. (Tr. 775-782). Dr. Spivak’s

clinical impressions included “alleged spinal stenosis with back pain and neck pain and reversal

of cervical lordosis and dextroscoliosis”; peripheral neuropathy secondary to chemotherapy; and

asthenia and fatigue secondary to chemotherapy. (Tr. 777). Plaintiff also references a December

4, 2015 Physical Medical Source Statement from her treating physician Rebecca Rodriguez,

M.D., diagnosing her with chronic musculoskeletal pain; Hodgkin lymphoma s/p (status post)

chemo and radiation; chemotherapy induced neuropathy; and lumbar foraminal stenosis. (Tr.

884). Lastly, Plaintiff argues that severe lumbar stenosis is supported in the medical record

through MRI imaging performed on June 26, 2014, July 23, 2015 and July 14, 2016. (Tr. 422,

602-03, 924, 1314-15).

The Commissioner maintains that the diagnoses of peripheral neuropathy secondary to

chemotherapy and lumbar stenosis do not warrant the designation of separate severe impairments

because the ALJ considered all spine diagnoses — including lumbar stenosis — as part of a more

broadly defined disorder, degenerative disc disease, and because Plaintiffs peripheral

neuropathy secondary to chemotherapy was encompassed in the ALJ’s finding of severe

Hodgkin’s lymphoma history, status post curative treatment. The Court agrees with the

Commissioner. A failure to list a specific impairment at step two of the sequential evaluation

process is not an error unless the impairment is “separate and apart” from the other listed

impairments. See Gragg v. Astrue, 615 F.3d 932, 939 (8th Cir. 2010) (“The reports of [the

experts evaluating claimant] are entirely consistent with the ALJ’s determination that [claimant]

had a learning disorder, and do not support [claimant’s] argument that [the experts] concluded

borderline intellectual functioning was a severe impairment separate and apart from a learning

disorder.”); Gregory v. Comm’r, Soc. Sec. Admin., 742 F. App’x 152, 156 (8th Cir. 2018) (ALJ

not required to explicitly list claimant’s pseudoaneurysm and aortic root abscess when

determining whether claimant had severe impairment, absent any indication that

pseudoaneurysm and aortic root abscess were separate and apart from listed heart health issues

that ALJ considered); see also Berger v. Berryhill, No. 4:18-CV-00047-PLC, 2019 WL 1490880,

at *11 (E.D. Mo. Apr. 4, 2019) (claimant’s headaches were neither separate nor distinct from the

severe impairments enumerated and considered by the ALJ, including claimant’s cervical

fusion).

Moreover, even if the ALJ erred in excluding Plaintiff's peripheral neuropathy and

lumbar stenosis from the list of severe impairments, the Court finds such error was harmless

because the ALJ clearly considered all of Plaintiffs limitations throughout her RFC analysis. See

Faint v. Colvin, 26 F. Supp. 3d 896, 910 (E.D. Mo. 2014) (ALJ’s failure to find plaintiff's

hearing condition to be a severe impairment was harmless given the ALJ’s inclusion of the

condition in his overall analysis); see also 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2) (“If you

have more than one impairment. We will consider all of your medically determinable

impairments of which we are aware, including your medically determinable impairments that are

not ‘severe,’ as explained in §§ 404.1520(c), 404.1521, and 404.1523, when we assess your

residual functional capacity.”); DeGroot v. Berryhill, No. 1:17CV202 ACL, 2019 WL 1316964,

at *7 (E.D. Mo. Mar. 22, 2019) (citing Coleman v. Astrue, No. 4:11CV2131 CDP, 2013 WL

665084, at *10 (E.D. Mo. Feb. 23, 2013) (“Where an ALJ errs by failing to find an impairment

to be severe, such error is harmless if the ALJ finds the claimant to suffer from another severe

impairment, continues in the evaluation process, and considers the effects of the impairment at

the other steps of the process.”). .

Here, the ALJ specifically discussed Plaintiff's reported difficulty with common

functional abilities such as standing, walking, sitting, bending, lifting, reaching, remembering,

completing tasks, and using her hands. (Tr. 22, 318). The ALJ also considered Plaintiff's

subjective statements regarding pain and other limitations, and conducted a proper analysis of the

credibility of those statements. (Tr. 28).4 The ALJ then accommodated those limitations she

found consistent with the record evidence. (Tr. 21-22). To account for Plaintiff's mobility issues,

the ALJ found she could only occasionally stoop, kneel, crouch, and crawl. As for Plaintiff's

residual hand complaints, the ALJ limited her to frequent handling, fingering, and feeling. As a

result, the case would not have been decided differently in the absence of the ALJ’s claimed

error. Byes v. Astrue, 687 F.3d 913, 917-18 (8th Cir. 2012); see also Hepp v. Astrue, 511 F.3d

798, 806 (8th Cir. 2008) (declining to remand for alleged error in opinion when error “had no

bearing on the outcome”) (internal quotation marks omitted).

4 Plaintiff does not challenge the ALJ’s credibility determination.

Plaintiff argues the ALJ failed to include limitations associated with her lumbar stenosis

such as the need to lie down and elevate her legs; however, she has no record evidence

supporting these additional limitations. Indeed, as discussed below, the ALJ found no support for

such limitations in the records of Plaintiff's treating sources. (Tr. 27). Plaintiff also takes issue

with the ALJ’s conclusion that she was able to frequently handle, finger and feel with her

bilateral upper extremities despite having had surgery for bilateral carpal tunnel syndrome in

2016. The ALJ properly found these limitations consistent with the RFC assessment. Plaintiff

testified that the surgery “helped a really good amount” (Tr. 124) and resolved 90% of her

numbness and tingling (Tr. 125-26, 976). While Plaintiff continued to experience some issues

lifting or opening items (id.), her treatment records indicate that she retains a minimal 4/5

bilateral hand strength and diminished sensation in the median nerve distribution and had no

hand-muscle atrophy. (Tr. 26, 1324). This is not inconsistent with the findings of the ALJ and,

therefore, remand is not appropriate.

B. Medical opinion evidence

Next, Plaintiff argues the ALJ failed to properly evaluate the findings and opinions of her

treating physician Rebecca Rodriguez, M.D.; the State agency consultative examiner Alan

Spivack, M.D.; and the State agency non-examining consultant Denise Trowbridge, M.D.

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)

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 medical finding(s), including those from your medical sources,” but rather, the

Administration will consider all medical opinions according to several enumerated factors, the “most

important” being supportability and consistency. 20 C.F.R. § 404.1520c. Plaintiff filed her claim in 2014,

so the previous Regulations apply.

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(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)).

Opinions of non-examining sources are generally given less weight than those of

examining sources. Lillard v. Berryhill, 376 F. Supp. 3d 963, 981-82 (E.D. Mo. 2019) (citing

Willcockson v. Astrue, 540 F.3d 878, 880 (8th Cir. 2008)). When weighing the opinion of a non-

examining source, the ALJ must evaluate the degree to which the source considered all of the

pertinent evidence and the degree to which the source provides supporting explanations for her

opinion. Id. (citing 20 C.F.R. § 416.927(c)(1), (c)(3)).

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 plaintiff's view of the evidence. See Brown v. Astrue, 611

F.3d 941, 951 (8th Cir. 2010).

1. Rebecca Rodriguez, M.D.

On December 4, 2015, Dr. Rodriguez completed a Physical Medical Source Statement.

(Tr. 884-86). Dr. Rodriguez found that because of chronic musculoskeletal pain; Hodgkins

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lymphoma s/p (status post) chemo and radiation; chemotherapy induced neuropathy; and lumbar

foraminal stenosis, Plaintiff could only sit for ten minutes at a time or two hours total in a

workday without pain; stand for fifteen minutes at a time or two hours total in a workday without

pain; lift less than five pounds; and never climb, crouch or bend. (Tr. 884-85). Handling and

fingering was limited. (Tr. 886). Dr. Rodriguez opined that Plaintiff would have to assume a

reclining and supine position for up to 30 minutes 1-3 times a day and elevate her legs to a height

of 2-3 feet 1-3 times a day while sitting to help with control of pain or fatigue. (Tr. 884). In

describing Plaintiffs limitations, Dr. Rodriguez stated:

It is difficult for patient to move in a way that would require bending over due to

the severity of her lumbar back. She definitely cannot perform those tasks with

[sic] significant difficulty or pain. The problems in her hands with strength and

sensation impair her ability to hold onto things and use fingers effectively.

(Tr. 886).

On April 10, 2017, in response to interrogatories propounded by Plaintiff's attorney, Dr.

Rodriguez stated that Plaintiff continued to need to assume a supine position for up to 30

minutes, 1-3 times per day and to elevate her legs up to a height of 2-3 feet, 1-3 times a day

while sitting, “[d]ue to chronic musculoskeletal pain, Hodgkin lymphoma, s/p chemo and

radiation, chemotherapy induced neuropathy and lumbar foraminal stenosis impaired strength

and sensation in hands, fingers. Chronic fatigue, difficulty bending, due to lumbar pain.” (Tr.

1560-61). Dr. Rodriguez opined that Plaintiff would miss at least 15 percent of an 8-hour work

day due to unscheduled breaks and would miss more than two days of work per month due to

pain, fatigue, or other medical issues. (Tr. 1561).

The ALJ discussed Dr. Rodriguez’s findings of limitations and the 2015 and 2017

opinions and gave them “little to no weight” because they were inconsistent with the record as a

whole and with Dr. Rodriguez’s treatment records showing that once Plaintiff's cancer was in

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remission, she was cleared to return to work. (Tr. 25, 27-28). The ALJ also noted that Dr.

Rodriguez’s 2015 source statement indicating significant hand and arm use limitations predated

Plaintiff's carpal tunnel surgery in 2016. Dr. Rodriguez’s 2017 source statement did not include

hand and arm use limitations. (Tr. 27). After review of the record, the Court finds substantial

evidence to support the ALJ’s decision to discount Dr. Rodriguez’s opinions.

As the ALJ noted, although Dr. Rodriguez observed some limitations such as decreased

range of motion and strength in both hips and an antalgic gait (Tr. 1023), these findings do not

explain the substantial limitations — including significant hand and arm use limitations —

identified on her 2015 medical source statement, and were inconsistent with Dr. Spivak’s

consultative findings of normal upper and lower extremity strength (Tr. 25, 781-82). Likewise,

the ALJ found Dr. Rodriguez’s 2017 limitations necessitating that Plaintiff lie down and prop up

her legs lacked support in her treatment records as well as the records of Plaintiff's other treating

sources. (Tr. 27). In particular, the ALJ notes that nowhere in the treatment record does Plaintiff

report that elevating her legs improves her symptoms, nor does Dr. Rodriguez suggest that

Plaintiff elevate her legs to alleviate symptoms. (Tr. 27).

The ALJ further found that limitations necessitating workplace absences were more a

reflection of Plaintiff's unsubstantiated subjective complaints than of reasonable restrictions due

to medical necessity. (Tr. 27). Significantly, the ALJ noted that Dr. Rodriguez diagnosed

Plaintiff with narcotic dependence, which could “underscore” her claims of pain and other

limiting symptoms. (Tr. 27, 1139).

Accordingly, the Court finds the reasons articulated by the ALJ are valid reasons for

discounting the opinions of Dr. Rodriguez. See, e.g., Anderson v. Astrue, 696 F.3d 790, 794 (8th

Cir. 2012) (holding the ALJ did not err in giving minimal weight to the report of a treating

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physician where the opinion was conclusory and contained significant limitations not reflected in

his treatment notes); Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001) (affirming the ALJ’s

decision to discount the opinion of a treating physician where it contained limitations that “stand

alone” and “were never mentioned in [the physician’s] numerous records of treatment ... nor

were they supported by any objective testing or reasoning which would indicate why the

claimant's functioning need be so restricted”).

2. Alan Spivak, M.D.

Dr. Spivak conducted a consultative examination on March 27, 2015. (Tr. 775-782).

Plaintiff complained of throbbing pain in her low back radiating to her hips and legs; weakness

and fatigue secondary to chemotherapy; pain in her neck radiating to her shoulders; and

weakness, some shortness of breath, and neuropathy in her hands secondary to chemotherapy.

(Tr. 775-76). She reported she could walk for less than half a block; stand for one minute; sit for

10 minutes; lift 5 pounds; and that she cannot bend over. (Tr. 775).

Dr. Spivak observed that Plaintiff walks very slowly with a wide-based gait secondary to

pain in her low back and hips and can barely stand on her toes or heels. (Tr. 776). He also noted

Plaintiff's straight leg raising was positive to 70 degrees and that she had decreased appreciation

of light touch and pinprick on the right arm and right lower extremity. (Tr. 777). Dr. Spivak’s

clinical impressions included “alleged spinal stenosis with back pain and neck pain and reversal

of cervical lordosis and dextroscoliosis”; peripheral neuropathy secondary to chemotherapy; and

asthenia and fatigue secondary to chemotherapy. (Tr. 777).

Dr. Spivak also provided a source statement concerning Plaintiff's extremity limitations.

He reported that Plaintiff had moderate difficulty picking up and holding a cup, mild difficulties

in the right hand and moderate difficulties in the left hand when opening a doorknob, and

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moderate difficulties in the left hand and severe difficulties in the right hand when squeezing.

Plaintiff had only mild difficulty picking up a coin or pen, buttoning/unbuttoning,

zipping/unzipping, and tying shoelaces. (Tr. 779). However, Plaintiff had full bilateral grip and

upper extremity strength and full lower extremity strength. (Tr. 781-82).

The ALJ gave Dr. Spivak’s findings great weight because they were consistent with

Plaintiff's impairments, but assigned little weight to his opinions regarding Plaintiffs fine and

gross manipulative movements of the hands and fingers because they appeared inconsistent with

his findings of Plaintiff's full grip and arm strength as well as treatment records both before and

after the date of his opinion. (Tr. 24). The Court finds no error. “An appropriate finding of

inconsistency with other evidence alone is sufficient to discount the opinion.” Rodgers _v.

Berryhill, No. 1:16-CV-00010 PLC, 2017 WL 4038140, at *10 (E.D. Mo. Sept. 13, 2017) (ALJ

properly assigned consultative examiner less weight because his opinion was inconsistent with

findings in his own exam and the record as a whole); Goff v. Barnhart, 421 F.3d 785, 790-91

(8th Cir. 2005). See also Vance v. Berryhill, 860 F.3d 1114, 1121 (8th Cir. 2017) (where the

medical record did not support the opinion of the claimant’s treating physician, the ALJ could

“rely instead on the opinions of the state agency medical consultants, which were more

consistent with the medical evidence”).

3. Denise Trowbridge, M.D.

A Disability Determination Explanation was conducted by Dr. Trowbridge, a non-

examining, non-treating state agency physician, on May 13, 2015. (Tr. 141-157). Dr. Trowbridge

indicated limitations applicable as of that date, opining that Plaintiff was capable of sedentary

work prior to her HD symptoms (ED 9/28/2014), and that she could return to sedentary work by

September 2015. (Tr. 154). The ALJ gave Dr. Trowbridge’s opinion limited weight because it

15

was more than two years old. (Tr. 28). Plaintiff argues that Dr. Trowbridge’s assessment that she

could not perform even sedentary work from late 2014 through May 2015 occurred during the

relevant period and thus should have been considered. The Court finds no error given that

Plaintiff's lymphoma was treated effectively within 12 months, and thus did not meet the

duration requirement. 42 U.S.C. § 1382c(a)(3)(A) (‘an individual shall be considered to be

disabled for purposes of this subchapter if he is unable to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment which ... has

lasted or can be expected to last for a continuous period of not less than twelve months.”).

In sum, the ALJ evaluated all of the medical opinion evidence of record and adequately

explained her reasons for the weight given this evidence. For the reasons set out above,

substantial evidence on the record as a whole supports the ALJ’s evaluation of the medical

opinion evidence.

VI. Conclusion

The ALJ properly considered Plaintiff's severe impairments and evaluated the medical

opinion evidence in determining the RFC. For these reasons, the Court finds the ALJ’s decision

is supported by substantial evidence contained in the record as a whole, and, therefore, the

Commissioner’s decision will be affirmed.

Accordingly,

IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and

Plaintiff's Complaint is DISMISSED with prejudice. A seperate Judgment will accompany this

Order.

Dated this 18th day of September, 2019.

webb Me

U D STATES DISTRICT JUDGE

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