# Beck v. Berryhill

> District Court, E.D. Missouri · December 12, 2019

URL: https://www.frixlaw.com/law-library/cases/10232220

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** December 12, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10232220

## How later opinions describe it (automated extraction)

- explaining that if substantial evidence supports the Commissioner’s decision, the court “may not reverse, even if inconsistent conclusions may be drawn from the evidence, and [the court] may have reached a different outcome”
- affirming ALJ’s RFC determination even though there were no medical opinions

## Opinion text

EASTERN DISTRICT OF MISSOURI
NORTHEASTERN DIVISION

DARRELL B., )
)
Plaintiff, )
)
vs. ) Case No. 2:18 CV 89 (JMB)
)
ANDREW M. SAUL,1 )
Commissioner of the Social Security )
Administration, )
)
Defendant. )

MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social Security
Administration. The parties have consented to the jurisdiction of the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c).
I. Procedural History
On September 10, 2015, plaintiff Darrell B. protectively filed applications for a period of
disability and disability insurance benefits, Title II, 42 U.S.C. §§ 401 et seq., and supplemental
security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of December 5,
2014.2 (Tr. 186, 189-90, 191-94). Plaintiff subsequently amended the alleged onset date to May
25, 2015. (Tr. 209). After plaintiff’s applications were denied on initial consideration (Tr. 117-
21), he requested a hearing from an Administrative Law Judge (ALJ). (Tr. 124-25).

1 After this case was filed, a new Commissioner of Social Security was confirmed. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul is substituted for Deputy Commissioner
Nancy A. Berryhill as the defendant in this suit.
2 Plaintiff previously filed an application for disability insurance benefits in 2012. (Tr. 86). An ALJ
denied that application on December 5, 2014. (Tr. 72-84).
testified concerning his disability, daily activities, functional limitations, and past work. The
ALJ also received testimony from vocational expert Anne H. Darnell, M.Ed. The ALJ issued a
decision denying plaintiff’s applications on January 19, 2018. (Tr. 15-26). The Appeals Council
denied plaintiff’s request for review on August 18, 2018. (Tr. 1-6). Accordingly, the ALJ’s
decision stands as the Commissioner’s final decision.
II. Evidence Before the ALJ
A. Disability and Function Reports and Hearing Testimony
Plaintiff, who was born in May 1965, was 50 years old on the amended alleged onset
date. In September 2015, when he filed his applications, he lived with his parents on their farm.

(Tr. 251). He had a high school diploma and worked for 21 years as a union welder before
retraining as an HVAC technician. He also worked as a welding instructor and at an auto parts
store. (Tr. 215, 440, 61). Plaintiff listed his impairments as severe back pain, back problems,
arthritis, nerve damage, muscle spasms, bipolar, manic depression, and migraines. (Tr. 214).
His medications included baclofen and hydrocodone for pain, trazodone for sleep, Depakote to
stabilize moods, Topamax for bipolar disorder, medication to treat high blood pressure, and
injections for migraines. (Tr. 217).
In his October 2015 Function Report (Tr. 250-58), plaintiff stated that he was unable to
work due to back pain and bipolar disorder. His pain interfered with his sleep and kept him from
doing farm work or other labor. He did other household chores to assist his parents, including

laundry, mowing, and repairs. He was able to drive and go to the grocery store, where he used a
motorized cart. He was able to manage financial accounts. His attention was limited to three to
five minutes and he had short-term memory problems.
2
cards, and having conversations, including on the telephone. He was no longer able to hike,
camp, ride motorcycles, restore cars, bowl, or spend time with kids. He had a short temper,
which he attributed to his extreme pain and mental illness. He had been fired from his auto parts
job due to his inability to relate to other employees. Plaintiff had difficulties with lifting,
squatting, bending, standing, reaching, walking, sitting, kneeling, hearing, climbing stairs,
remembering, completing tasks, concentrating, understanding, using his hands, and getting along
with others. His ability to follow instructions was limited by his ADHD and short-term memory
loss. He could walk on level ground for 50 to 100 feet before needing to rest. He used a cane on
occasion.

Plaintiff’s mother Pamela completed a Third Party Function Report. (Tr. 234-41). She
stated that plaintiff was no longer able to work, lift, stretch, bend, or control his emotions. He
was only able to handle small jobs and had to rest after doing household chores. Although
plaintiff was able to go out on his own, she did not think he should do so because he had trouble
with concentration and memory. He went shopping for food twice a month. Her son’s pain and
mental disorders had completely changed his personality, causing a lot of stress with his family
and friends. She described him as short-tempered and occasionally unreasonable. His pain and
migraines caused his emotions to “roller coaster” and his unpredictable behavior made it
impossible for him to find employment and support himself. She opined that he could lift no
more than 3 to 5 pounds and stated that he used a cane. The ALJ gave limited weight to Ms. B.’s

description of plaintiff’s physical limitations as inconsistent with plaintiff’s medical
examinations. The ALJ gave greater weight to her description of plaintiff’s daily activities,

3
groceries, spend time with others, and manage finances. (Tr. 24)
By the time of the October 2017 hearing, plaintiff’s parents had sold the family farm and
moved to Florida. Plaintiff and his girlfriend lived in a trailer on a piece of property he owned
with his sister, who lived in an adjacent trailer with her son. (Tr. 49-51).
Plaintiff testified that he sustained nerve damage during back surgery in 2012, causing
numbness in his right leg and foot. The outside edge of his right foot was numb all the time,
altering his balance. (Tr. 38-39). If he twisted or sat the wrong way, his leg went numb and he
collapsed. He had shooting pains down the back of his right leg and suffered back spasms if he
stood for any length of time. (Tr. 39-40). Sitting hurt more than standing and the only position

in which he could comfortably sit was in a recliner with his feet elevated. (Tr. 40, 68). When he
went grocery shopping, he leaned on the cart and used it like a walker. At the time of the
hearing, he had reapplied for Medicaid. He managed his musculoskeletal pain with nonnarcotic
muscle relaxers and Advil. (Tr. 46). Twice a week, plaintiff got debilitating migraine headaches
that lasted between one and three days. He sat in a quiet dark room with a cool cloth on his head
and took medication that helped him sleep but caused him to feel hungover. He used to receive
injections for migraines but found them too painful. (Tr. 45-47). Plaintiff also took medication
to treat high blood pressure, which he stated was caused by his 2012 back surgery.3 (Tr. 56).
Finally, he had a lifelong 75% loss of hearing in his right ear. (Tr. 58). Plaintiff’s physical
impairments caused him some difficulty with self-care. In particular, he used a shower chair to

avoid slipping and he had trouble putting on shoes and socks. The heaviest weight he could lift
was a gallon of milk.

3 Plaintiff was found to have high blood pressure at his preoperative examination. (Tr. 513).
4
42). He took medication that reduced his temper outbursts but made him “wander around like a
mindless little drone.” (Tr. 43). As discussed below, plaintiff was admitted to a psychiatric unit
in December 2014 after texting suicidal and homicidal statements to a friend who then called
911. At his hearing, plaintiff testified that he was asleep when the police came to his home in
tactical gear.4 They used physical force to restrain him and transport him to the emergency
room, where he remained in restraints on the floor wearing only his underwear. (Tr. 53-55). He
testified that he continued to have nightmares and paranoid feelings arising from this incident.
Plaintiff also testified that he had heard muffled voices and music since he was a child. (Tr. 59).
He told treatment providers that he was uncertain whether these occurrences were due to his

hearing loss or were truly auditory hallucinations.
Plaintiff testified that he did not enjoy watching television and only talked on the phone
when someone called him. He usually sat and listened to music. (Tr. 43). He stated that, in the
past, he drank beer to increase the effect of his nonnarcotic pain medication, but he quit because
he was not “a drinker” and “never really drank.” At the time of the hearing, he was taking a
muscle relaxer that relieved his back pain and had not been drinking for about six months.5 (Tr.
43-44). Plaintiff described repairs he was making on his trailer. He approached these repairs
slowly, both to protect his back and because his medication made it difficult for him to
concentrate. (Tr. 45).

4 He also testified that this incident occurred right after his surgery and he was worried about his back.
(Tr. 53). It actually took place more than two years after his surgery.
5 A little more than three months before the hearing, on June 22, 2017, plaintiff told his psychiatrist that
he drank “a couple of beers at night so [he could] sleep.” (Tr. 556). In March 2017, plaintiff told the
same provider that he drank 30 beers a week. (Tr. 553-55).
5
opportunities for a hypothetical person who was closely approaching advanced age, with a high
school education and plaintiff’s work history, who was limited to light work. Ms. Darnell was
asked to assume that the individual could never climb ladders, ropes, and scaffolds; could
occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; should avoid
exposure to environmental hazards, including vibration; and was limited to simple, routine,
repetitive tasks, involving only simple decisions. Ms. Darnell was also asked to assume that the
individual was limited to occasional interaction with supervisors and co-workers and no
interaction with the general public. (Tr. 66-67). According to Ms. Darnell, such an individual
would not be able to perform plaintiff’s past work as a welder, HVAC technician, auto parts

sales person, or welding instructor. Other work available in the national economy the individual
could perform included warehouse checker, hand bander, and mail clerk. The individual would
not be able to perform these jobs if he were limited to sedentary work. All work would be
precluded if the individual were off-task 20 percent of the day due to psychological issues or
medication side effects. (Tr. 67-68).
B. Medical Evidence
Plaintiff begins his discussion of the medical record in May 2015 and the Court will do
the same, with a brief synopsis of the earlier records included in the administrative transcript.
On October 16, 2012, Theodore J. Choma, M.D., performed a microdiscectomy to treat
plaintiff’s “massive” and “severely debilitating” disc herniation at L4-L5. (Tr. 288). Starting

shortly after the surgery and continuing throughout the period under review, plaintiff complained
of headaches and numbness in the toes of his right foot. (Tr. 522). A postoperative MRI
disclosed moderate central canal and moderate-to-severe bilateral recess, mild-to-moderate
6
pain, which Dr. Choma attributed to multilevel lumbar spondylosis that was not amenable to
surgical intervention. (Tr. 525-26). Records from 2014 show that plaintiff was prescribed
tramadol and hydrocodone for pain and Flexeril for muscle spasms. He was also started on
medication to address hypertension. (Tr. 436, 426-31).
In December 2014, plaintiff was hospitalized on a 96-hour hold after he made threatening
statements in text messages to a friend. (Tr. 316-59). He blamed his outbursts on intractable
pain and numbness in his right leg which interfered with his sleep. He was also using alcohol
and marijuana regularly. He was discharged with diagnoses of Adjustment Disorder with
Depressed Mood, rule out Bipolar Disorder; and Pain Disorder, rule out Malingering

Component. (Tr. 344). He was directed to enter pain management services and outpatient
mental health treatment.
In January 2015, plaintiff sought emergency care for a headache with photophobia. (Tr.
365-72). A CT scan of his brain was negative. He was prescribed a beta blocker to address
hypertension and migraines and an increased dose of hydrocodone for back pain. (Tr. 420-25).
Also in January 2015, plaintiff entered into mental health treatment at Burrell Behavioral Health.
(Tr. 458-61). He reported having mood swings, auditory hallucinations, poor sleep, and violent
dreams; he also wished that he had not woken up from surgery. He received medication
monitoring from Kristin Parkinson, M.D., who diagnosed plaintiff with Bipolar Affective
Disorder I, Most Recent Episode Depressed, rule out Mood Disorder Secondary to Pain. He was

also assigned a community support services worker. (Tr. 455-57, 452-54, 449-51).
In March 2015, plaintiff established primary care treatment with Christopher Hartigan,
FNP, who prescribed a TENS unit and medication for migraines, hypertension, neuropathic pain,
7
2015 disclosed degenerative changes with preserved disc spaces and no evidence of sacroiliitis.
(Tr. 488-91). An MRI of the brain disclosed no abnormalities. (Tr. 492). Plaintiff was offered,
and refused, an injection to treat pain in the right sacroiliac joint. (Tr. 491, 450). On
examination in mid-May 2015, plaintiff complained of headache pain, which he rated at level 9
on a 10-point scale. He had tenderness of the lumbar spine and moderate pain with motion. (Tr.
398). He had not started taking a medication prescribed to address his neuropathic pain. Two
weeks later, Mr. Hartigan noted that plaintiff’s hypertension was stable and his migraines were
much improved. He still had not begun taking the neuropathy medication and Mr. Hartigan
wanted plaintiff to reduce his use of hydrocodone. (Tr. 391-92). On June 23, 2015, Mr.

Hartigan noted improvement in plaintiff’s migraines and hypertension but he had fractured his
ribs falling in the tub. Mr. Hartigan administered an injection of Toradol for pain. (Tr. 387-93,
373). Plaintiff was warned that “agitated phone calls with cursing” would “get [him] fired from
Family Health Center.” (Tr. 385).
In June 2015, plaintiff was transferred to Burrell Behavioral Health’s Community
Psychiatric Rehabilitation program, where he was seen by psychiatrist Laura E. Smith, D.O. (Tr.
445-48). He described a history of 25 to 30 concussions with loss of consciousness, sustained in
a variety of motor bike, skateboard, roller blade, and motor vehicle accidents. During the
session, he made “tirades” about “foreigners” stealing his job and benefits and blamed a
“Mexican doctor” for thwarting his disability application by stating that plaintiff was “faking

[his] back injury.” (Tr. 445). He drank four beers a night. Upon review of systems, Dr. Smith
noted that plaintiff had labile mood, anger outbursts, nightmares, sleep difficulty, and auditory
hallucinations. His liver function tests were elevated. On mental status evaluation, plaintiff
8
and appeared to be in pain as he sat. His speech was loud and he occasionally shouted.
Although he described his mood as “okay,” his affect was labile, ranging from euthymic and
jovial to extremely angry. His thought processes were circumstantial and he was preoccupied
with foreigners doing him harm. He denied suicidal and homicidal ideation. He had limited
insight and partial judgment regarding his ranting and alcohol use. He was alert and oriented,
but his attention span and concentration were diminished. Dr. Smith diagnosed plaintiff with
Bipolar I Disorder (by history), rule out Mood Disorder, Secondary to Traumatic Brain Injury;
Anxiety with PTSD Features, rule out PTSD; and rule out Alcohol Use Disorder. He reported
that high doses of Trazodone made him groggy and that Topamax helped reduce his headaches.

He was “very resistant” to taking medication in general but agreed to start Prazosin to treat
nightmares. Dr. Smith recommended that he increase the dosage of Topamax he was taking and
reduce his alcohol use. (Tr. 446).
In July 2015, plaintiff told Dr. Smith that his girlfriend tried to kill him by lowering a car
on him as he was changing a tire. (Tr. 442-44). He also complained that he had failed a drug
screen because she put drugs in his food, with the result that his Vicodin prescription was at risk
of suspension. He had anxiety related to a number of psychosocial stressors and had increased
his daily beer intake to 5 or 6 a day. He reported that he had not started taking Prazosin because
he did not have any problems with nightmares and, further, he was sleeping 8 hours a night. He
had depressed and irritable mood with difficulty concentrating and passive suicidal thoughts in

response to uncontrolled pain. Once again, on mental status examination, plaintiff displayed
labile affect, limited insight, and partial judgment. His mood was depressed and irritable. He
was prescribed trazodone and Prazosin to use as needed and agreed to increase his Topamax but
9
had not actually used the higher dosage of Topamax and Dr. Smith reduced the prescribed dose
to reflect his actual use. (Tr. 439-41).
On July 23, 2015, Mr. Hartigan told plaintiff that he needed to have two clean urine
screens before his pain medication could be renewed because the last screen showed
methamphetamine and unprescribed oxycodone. (Tr. 374-79). On examination, he had
tenderness of the lumbar spine. His migraines were stable but his depression was worse and he
had gained two pounds.
In August 2015, Dr. Smith noted that plaintiff’s referral to pain management services had
been held up by lost medical records and that his Vicodin prescription was discontinued. (Tr.

439-41). He had “snapped” at Mr. Hartigan’s office, but denied feeling any regret or need to
apologize. He later apologized to Dr. Smith for being “loud and confrontational,” attributing his
behavior to pain.
On September 21, 2015, plaintiff was seen by S. Street, DO, at the Lordex Spine Center.
(Tr. 472-74). He was accompanied by a case worker from Burrell Behavioral Health. Plaintiff
reported worsening back pain with numbness in the side of his foot. He stated that other
providers “tried to kill him” with treatments and that he had walked out when a specialist
recommended injections. On examination, plaintiff was not in acute distress and had no overt
pain behavior. He had a normal gait. He had a limited range of motion of his lumbar spine and
complained of pain but had no tenderness on palpation. He did have tenderness over the right

sacroiliac joint and pain over the lumbar facets. He had normal patellar reflexes and absent
Achilles reflexes. He had full strength in the right lower extremity and slightly diminished
strength in the left. Straight leg raising tests were negative on both sides. He was diagnosed
10
radio frequency ablation. Plaintiff became agitated and stated that he did not trust doctors. Dr.
Street pointed out that his advice was the same as that given by at least two other physicians. Dr.
Street suggested that plaintiff consider his options and return if he wanted further treatment.
There are no records of additional contact with the Lordex Spine Center.
On October 1, 2015, plaintiff had a new patient office visit with Lawrence Lampton,
M.D. (Tr. 475-76). The handwritten notes are largely illegible and the record contains no notes
of further contact with Dr. Lampton.
Plaintiff began individual therapy with Katherine Ottofy, LCSW, on October 12, 2015.
(Tr. 581-82). He met with her approximately every two weeks for the next two years, with a gap

between July and September 2016. His goals for treatment were to learn stress management
skills and improve his personal relationships. (Tr. 581-658).
On October 13, 2015, plaintiff returned to see Dr. Choma, who had performed his
microdiscectomy in October 2012, for complaints of back pain and numbness, tingling, and
weakness in his right leg. (Tr. 494-97). Dr. Choma noted that plaintiff’s lack of medical
insurance had prevented him from getting appropriate treatment for these symptoms following
the 2012 surgery. Diclofenac helped a bit, but he had severe reactions to gabapentin and Lyrica,
including diarrhea and vomiting. On examination, plaintiff was unable to toe walk, had lumbar
pain with motion, full strength, and generally — but not completely — intact sensation. X-rays
showed mild lumbar scoliosis at L2-3, lumbar spondylosis, disc space narrowing, and facet

arthrosis. (Tr. 498). An MRI of the spine showed progression of spondylosis at L2-3, disc bulge
and disc space narrowing, and foraminal narrowing. (Tr. 499-500). It was determined that the
numbness in his right leg was not due to a stenotic lesion. (Tr. 501).
11
Behavioral Health. (Tr. 478-81). Plaintiff reported that higher doses of Topamax made him feel
mean and out of it but lower doses helped stabilize his mood. He stated that he snapped about
once a week and became very angry, with screaming and agitation. Less often, he had crying
spells that lasted as long as two hours. He reported feeling guilty, worthless, pathetic, and
agitated or frustrated. He continued to describe hearing voices but wondered whether they were
related to his 75% hearing loss in one ear. He reported a history of multiple traumas, including
physical and emotional abuse within his family and sexual abuse at age 12. In addition, he was
stabbed in the back by a girlfriend and was the target of a SWAT raid in the middle of the night.
When his fiancée died of a heart attack shortly before their wedding date, he was initially

arrested for her murder. He had nightmares and flashbacks and was hypervigilant, finding it
hard to trust others. On mental status examination, plaintiff had excessive and rapid speech that
was easily interrupted, difficulty concentrating, and fair to poor insight and judgment. He had
depressed and anxious mood with congruent affect. He was diagnosed with Bipolar I Disorder,
Most Recent Episode Depressed, Moderate, rule out with Psychotic Features; rule out Psychosis;
rule out Mood Disorder, Secondary to Traumatic Brain Injury; PTSD; and Alcohol Use Disorder.
Ms. Brothers prescribed Topamax at a reduced dosage and trazodone as needed for sleep, and
discontinued Prazosin. Plaintiff was again advised to reduce or discontinue alcohol use.
Plaintiff returned to see Mr. Hartigan at the Family Health Center on October 22, 2015.
(Tr. 482-87). He reported continued back pain that radiated to the right leg with tingling and

weakness in his leg. His hypertension was stable. On examination, he had a rash on his arms
and lumbar tenderness. His medications included diclofenac as needed for pain, hydrocodone,
blood pressure medication, Sumavel injections as needed for migraines, the muscle relaxer
12
month, Mr. Hartigan noted that plaintiff was suffering from nocturnal paresthesias and tingling
and had insomnia. (Tr. 527-32). He recommended an epidural steroid injection at L4-5 to
address plaintiff’s continuing moderate-to-severe back pain and prescribed Belsomra for
insomnia. Plaintiff underwent the injection a few days later. (Tr. 534-35).
On December 23, 2015, plaintiff told Ms. Brothers that he had not had any recent angry
outbursts. (Tr. 538-40). He was working on his trailer but his progress was slow due to his back
problems. He woke up every two hours due to pain or stress. He had stopped taking trazodone
because it made him too groggy and he was planning to start taking Belsomra. He found therapy
helpful and his mood and outlook were improved. He stated that he had racing thoughts,

nightmares, flashbacks, and hypervigilance. Ms. Brown observed that he seemed less irritable
and more at ease. She discontinued trazodone and advised him to keep taking Topamax and stop
drinking. In January 2016, plaintiff told Mr. Hartigan that the Belsomra was not working. His
urine screen was positive for methamphetamine and so he did not receive any narcotics for pain.
(Tr. 574-80). There are no records of medical care for plaintiff’s physical impairments until
April 2017.
In February 2016, plaintiff told Ms. Brothers that he was under pressure from his parents
to make his trailer habitable so that they could move to Florida. (Tr. 541-43). He was sleeping
every other night, trying to stay up and finish his work on the trailer. He had thoughts of hurting
others but no plans and had not been snapping at people. He rated his anxiety at level 7 on a 10-

point scale. Plaintiff’s caseworker reported that plaintiff was doing well on the current dose of
Topamax. Buspar was added to address his anxiety. In March 2016, plaintiff reported that the
Buspar was helping him to feel less stressed, irritable and agitated. (Tr. 544-46). He was
13
the trailer as much as he would like and his parents were annoyed by the lack of progress. His
medications remained unchanged in May and June 2016. (Tr. 547-49, 550-52). In June, he
reported that his overall mood was okay and his mother thought the Buspar was helping. He
denied having mood swings and was less irritable and anxious. He was scheduled to return in
July 2016 but did not seek medication management again until March 2017,6 when he was
evaluated by Samuel Temesgen, M.D. (Tr. 553-55). He stated that he was working on his trailer
25 hours a week and taking repair jobs to make money. He was doing well and rated his life at
level 8 on a 10-point scale. Although he previously reported that Buspar was helpful, he now
complained that it turned him into a mindless drone. He still had back pain but was not taking

pain medication. Furthermore, he was sleeping well, although he had “weird” dreams. (Tr.
553). He denied suicidal or homicidal ideation. On examination, Dr. Temesgen noted that
plaintiff was alert and oriented, extremely restless, made poor eye contact, and was superficially
cooperative. His speech was a bit fast but his thought processes were logical and goal directed
and he had good focus. His affect ranged from euthymic to irritable and his mood was “okay.”
His insight and judgment were fair. Dr. Temesgen discontinued Buspar and continued Topamax.
Plaintiff returned to the Family Health Center on April 18, 2017, where he was seen by
Ameer Shams, M.D., for treatment of migraines, hypertension, tendonitis in his right elbow,
hypoglycemia, and hyperlipidemia. (Tr. 566-73). Plaintiff complained of fatigue. On
examination he had tenderness in his right elbow and swelling in his hands. The examination of

his spine was normal. Dr. Shams ordered lab tests to determine the cause of plaintiff’s fatigue
but the results do not appear in the record and there was no further mention of fatigue when

6 Plaintiff also missed two months of sessions with Ms. Ottofy but resumed biweekly therapy in
September 2016. (Tr. 617-18).
14
hands. His hypertension was stable.
Plaintiff returned to see Dr. Temesgen in June 2017. (Tr. 556-57). He blamed Topamax
for being easily distracted and unable to finish tasks. He believed that controlling his pain would
help, but stated that he was unable to take pain medication. He was sleeping four hours a night,
drinking beer so he could sleep, and hearing voices. On examination, he was less restless but
made poor eye contact. He was oriented with good focus and his affect was irritable to
euthymic. He agreed to continue taking Topamax, which he believed helped with his anger. He
also agreed to be evaluated for adult ADHD. When plaintiff returned in August, he reported that
he was feeling more stress. (Tr. 558-59). His parents were about to move away and he did not

feel able to support himself. He believed the Topamax helped him to “mellow out.” He also
drank a 30-pack of beer every week for back pain. His mental status remained unchanged.
Plaintiff’s parents moved away in mid-August 2017. He told Ms. Ottofy that he was
working on his projects and figuring out a system for paying his bills. (Tr. 653-54, 655-56). In
September 2017, Ms. Ottofy noted that plaintiff had been working to develop skills and improve
his functioning in the areas of stress and anger management, communication skills, and boundary
setting within interpersonal relationships. She described him as actively participating and
engaged in therapy. (Tr. 659).
2. Opinion evidence
On December 22, 2015, State agency consultant Kenneth R. Smith, M.D., completed a

physical residual functional capacity assessment based on a review of the record. (Tr. 92-94,
106-08). Dr. Smith noted that plaintiff was able to complete housework, mow, drive, shop, lift
up to 15 pounds, and walk 100 feet. He further noted that in October 2015 plaintiff had full
15
poorly credible and could occasionally lift or carry up to 20 pounds, frequently lift or carry up to
10 pounds, stand and/or walk for 6 hours in an 8-hour workday, and sit more than 6 hours on a
sustained basis in an 8-hour day. The ALJ gave this portion of Dr. Smith’s opinion great weight.
Dr. Smith also found that plaintiff had no environmental restrictions. The ALJ discounted this
portion of his opinion, finding that plaintiff’s pain, decreased reflexes and sensation, and
medication side effects warranted restrictions on his exposure to heights, moving machinery,
vibration, and operating motor vehicles. (Tr. 24).
On January 4, 2016, State agency consultant Stanley Hutson, Ph.D., completed a
Psychiatric Review Technique form, also based on a review of the record. (Tr. 90-92, 104-06).

Dr. Hutson concluded that plaintiff had medically determinable impairments in the categories of
12.04 (affective disorders), 12.06 (anxiety-related disorders), and 12.09 (substance addiction
disorders). Dr. Hutson noted that plaintiff was resistant to taking medications but was partially
compliant with his psychotropic medications and that he had started individual therapy. He
found that plaintiff had moderate restrictions in the activities of daily living; maintaining social
functioning; and maintaining concentration, persistence, and pace. There was insufficient
evidence regarding episodes of decompensation. In a mental residual functional capacity
assessment (Tr. 94-96, 108-10), Dr. Hutson opined that plaintiff had no understanding and
memory limitations. He was moderately limited in the ability to carry out detailed instructions.
He was not significantly limited in the abilities to maintain a schedule, sustain a work routine, or

complete a work schedule without unreasonable rest periods. He was moderately limited in
some components of interacting with others in a work setting and adapting to changes. Dr.
Hutson found that plaintiff was able to understand and remember instructions and complete
16
frustration and temper and would benefit from having limited social interactions in a work
setting. He was able to adapt to a work setting that had few changes in routine and few social
demands. The ALJ gave great weight to Dr. Hutson’s opinion regarding plaintiff’s restrictions.7
(Tr. 24).
III. Standard of Review and Legal Framework
To be eligible for disability benefits, plaintiff must prove that he is disabled under the
Act. See Baker v. Sec’y of Health and Human Servs., 955 F.2d 552, 555 (8th Cir. 1992);
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). The Act defines a disability as the
“inability 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 12 months.” 42 U.S.C. §§
423(d)(1)(A) and 1382c (a)(3)(A). A claimant will be found to have a disability “only if his
physical or mental impairment or impairments are of such severity that he 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.” 42 U.S.C. §§
423(d)(2)(A) and 1382c(a)(3)(B). See also Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
The Social Security Administration has established a five-step process for determining
whether a person is disabled. See 20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th
Cir. 2009). Steps one through three require the claimant to prove (1) he is not currently engaged

in substantial gainful activity, (2) he suffers from a severe impairment, and (3) his disability

7 The ALJ noted that the regulations regarding paragraph B criteria had changed, which reduced the
relevance of Dr. Hutson’s paragraph B determinations, but did not affect his determinations regarding the
severity of plaintiff’s functional restrictions.
17
also Bowen, 482 U.S. at 140-42 (explaining the five-step process). If the claimant does not
suffer from a listed impairment or its equivalent, the analysis proceeds to steps four and five.
Pate-Fires, 564 F.3d at 942. “Prior to step four, the ALJ must assess the claimant’s residual
functional capacity (RFC), which is the most a claimant can do despite her limitations.” Moore,
572 F.3d at 523 (citing 20 C.F.R. § 404.1545(a)(1)). At step four, the ALJ determines whether
claimant can return to his past relevant work, “review[ing] [the claimant’s] [RFC] and the
physical and mental demands of the work [claimant has] done in the past.” 20 C.F.R. §
404.1520(e). The burden at step four remains with the claimant to prove his RFC and establish
that he cannot return to his past relevant work. Moore, 572 F.3d at 523; accord Dukes v.

Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th
Cir. 2005). If the ALJ holds at step four that a claimant cannot return to past relevant work, the
burden shifts at step five to the Administration to establish that the claimant maintains the RFC
to perform a significant number of jobs within the national economy. Banks v. Massanari, 258
F.3d 820, 824 (8th Cir. 2001); see also 20 C.F.R. § 404.1520(f).
The Court’s role on judicial review is to determine whether the ALJ’s finding are
supported by substantial evidence in the record as a whole. Pate-Fires, 564 F.3d at 942.
Substantial evidence is “less than a preponderance, but enough that a reasonable mind might
accept it as adequate to support a decision.” Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir.
2008); see also Wildman v. Astrue, 964 F.3d 959, 965 (8th Cir. 2010) (same). In determining

whether the evidence is substantial, the Court considers evidence that both supports and detracts
from the ALJ’s decision. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).

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disability determination is intended to be narrow and that courts should “defer heavily to the
findings and conclusions of the Social Security Administration.” Hurd v. Astrue, 621 F.3d 734,
738 (8th Cir. 2010) (quoting Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001)). Despite
this deferential stance, a district court’s review must be “more than an examination of the record
for the existence of substantial evidence in support of the Commissioner’s decision.” Beckley v.
Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998). The district court must “also take into account
whatever in the record fairly detracts from that decision.” Id.; see also Stewart v. Sec’y of
Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (setting forth factors the court
must consider). Finally, a reviewing court should not disturb the ALJ’s decision unless it falls

outside the available “zone of choice” defined by the evidence of record. Buckner v. Astrue, 646
F.3d 549, 556 (8th Cir. 2011). 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.; see also McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010) (explaining
that if substantial evidence supports the Commissioner’s decision, the court “may not reverse,
even if inconsistent conclusions may be drawn from the evidence, and [the court] may have
reached a different outcome”).
IV. The ALJ’s Decision
The ALJ’s decision in this matter conforms to the five-step process outlined above. The
ALJ found that plaintiff met the insured status requirements through June 30, 2017, and had not

engaged in substantial gainful activity since May 25, 2015, the amended alleged onset date. (Tr.
17). At steps two and three, the ALJ found that plaintiff had severe impairments of lumbar
degenerative disc disease and spondylosis status post-microdiscectomy, migraines, bipolar
19
alcohol use disorder, and PTSD. Plaintiff had nonsevere impairments of hypertension,
hyperlipidemia, sacroiliitis, history of idiopathic neuropathy, history of tennis elbow, and history
of rib fractures. (Tr. 17-28). The ALJ found that plaintiff’s allegations of ADHD, hand arthritis,
and hearing loss were not medically determinable impairments. (Tr. 18). Plaintiff does not
challenge the ALJ’s determination of his severe impairments. The ALJ then determined that
plaintiff did not have an impairment or combination of impairments that met or medically
equaled a listed impairment.8 (Tr. 18-20).
The ALJ next determined that plaintiff had the RFC to perform light work and could
occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl. He could never

climb ladders, ropes, or scaffolds, and needed to avoid environmental hazards, including “work
in vibration.” (Tr. 20). Furthermore, he was limited to performing simple, routine, repetitive
tasks and simple work decisions. He could have occasional interaction with coworkers and no
interaction with the general public. (Tr. 20-25). In assessing plaintiff’s RFC, the ALJ
summarized the medical record and opinion evidence, as well as plaintiff’s statements regarding
his abilities, conditions, and activities of daily living. While the ALJ found that plaintiff’s
medically determinable impairments could reasonably be expected to cause the alleged
symptoms, the ALJ also determined that plaintiff’s statements regarding their intensity,
persistence and limiting effect were “not entirely consistent” with the medical and other
evidence. (Tr. 21).

8 For the purposes of considering the paragraph B criteria for mental impairments, the ALJ found that
plaintiff had mild limitations in understanding, remembering, or applying information. He had moderate
limitations in his abilities to interact with others; concentrate, persist, or maintain pace; and adapt or
manage himself. (Tr. 19). He did not satisfy the paragraph C criteria. (Tr. 19-20).
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work as an auto parts specialist, HVAC technician, welder, or welding teacher. (Tr. 25). He was
in the “closely approaching advanced age” category on the alleged onset date, had at least a high
school education, and was able to communicate in English. Id. The transferability of job skills
was not material because using the Medical-Vocational Rules as a framework supported a
finding that plaintiff was not disabled regardless of whether he had transferable skills. Id. The
ALJ found at step five that someone with plaintiff’s age, education, work experience, and
functional limitations could perform other work that existed in substantial numbers in the
national economy, namely as a warehouse checker, hand bander, and mail clerk. (Tr. 25-26).
Thus, the ALJ found that plaintiff was not disabled within the meaning of the Social Security Act

from May 25, 2015, the amended alleged onset date, through January 19, 2018, the date of the
decision. (Tr. 26).
V. Discussion
Plaintiff argues that the ALJ’s determination that plaintiff had the RFC to perform light
work is not supported by any medical evidence.9 In particular, he argues that the ALJ erred in
relying on the opinions of the consultative State agency doctor in formulating the RFC.
The “RFC is an administrative assessment of the extent to which an individual's
medically determinable impairment(s), including any related symptoms, such as pain, may cause
physical or mental limitations or restrictions that may affect his or her capacity to do work-
related physical and mental activities.” SSR 96-8p, 1996 WL 374184 (July 2, 1996). “[A]

9 In the December 2015 decision issued on plaintiff’s prior application, the ALJ determined that plaintiff
was limited to sedentary work. (Tr. 78-82). As plaintiff notes, if the ALJ in the current decision limited
him to performing only sedentary work, he would be disabled under the Medical-Vocational Guidelines.
20 C.F.R. § 404, Subpt. P, App. 2, § 201.14. The ALJ in this case conducted a de novo review of the
evidence and was not bound by any prior determinations. (Tr. 34).
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by treating physicians and others, and an individual’s own description of his limitations.” Moore
v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (quotation and citation omitted). “Because a
claimant’s RFC is a medical question, an ALJ’s assessment of it must be supported by some
medical evidence of the claimant’s ability to function in the workplace.” Cox v. Astrue, 495
F.3d 614, 619 (8th Cir. 2007). Nonetheless, there is no requirement that an RFC finding be
supported by a specific medical opinion, Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016),
or, indeed, any medical opinion at all. See Stringer v. Berryhill, 700 F. App’x 566, 567 (8th Cir.
2017) (affirming ALJ’s RFC determination even though there were no medical opinions).
Furthermore, the ALJ is not limited to considering only medical evidence in evaluating a

claimant’s RFC. Cox, 495 F.3d at 619; see also Dykes v. Apfel, 223 F.3d 865, 866 (8th Cir.
2000) (per curiam) (“To the extent [claimant] is arguing that residual functional capacity may be
proved only by medical evidence, we disagree.”) (emphasis in original). The ALJ may also
consider a claimant’s daily activities, subjective allegations, and any other evidence of record
when developing the RFC. Hartmann v. Berryhill, No. 4:17-CV-002413-SPM, 2018 WL
4679737, at *6 (E.D. Mo. Sept. 28, 2018) (citing Cox, 495 F.3d at 619-20). And, even though
the RFC assessment draws from medical sources for support, it is ultimately an administrative
determination reserved to the Commissioner. Cox, 495 F.3d at 620; 20 C.F.R. §§ 416.927(e)(2),
416.946 (2006). The burden is on the claimant to prove his RFC and establish that he cannot
return to his past relevant work. Moore, 572 F.3d at 523.

In determining plaintiff’s physical RFC, the ALJ reviewed plaintiff’s activities. The
record establishes that plaintiff painted the bathroom in his trailer, changed electrical wiring,
fixed leaking pipes, and did occasional repairs for money. The ALJ also reviewed the medical
22
treatment history, and response to medications. Thus, the ALJ noted that, while October 2015
imaging studies showed progression of spondylosis and degenerative disc disease, it remained
mild to moderate and brain scans were routinely negative. (Tr. 21, 498-500). The ALJ also
noted that plaintiff’s physical exams disclosed some reduction in strength, reflexes and sensation,
with periodic tenderness on palpation and positive straight leg tests. Nonetheless, he was
generally described as looking well and not in acute distress. He never sought emergency
treatment for back pain and routinely refused prescribed injections.
The ALJ also considered the opinion evidence. The only medical opinion addressing
plaintiff’s physical limitations is that formulated by Dr. Smith, a State consultative expert, in

December 2015. Plaintiff argues that the ALJ improperly gave great weight to the opinion of Dr.
Smith. First, plaintiff argues, under SSR 96-8p, the opinions of nonexamining sources are not
entitled to greater weight than a conflicting opinion from a treating physician. Walker v.
Comm’r, Soc. Sec. Admin., 911 F.3d 550, 553 (8th Cir. 2018) (citation omitted) (“By contrast
[with the controlling weight given to the well-supported opinions of treating physicians], the
opinion of a consulting [source] who examines a claimant once or not at all does not generally
constitute substantial evidence.”). Here, however, no treating physician ever rendered an opinion
regarding plaintiff’s capacity to work, let alone an opinion that conflicts with that of Dr. Smith.
Second, plaintiff argues, the consultative opinions were based on limited medical evidence. In
this case, however, the ALJ considered the opinions in light of plaintiff’s subsequent treatment in

full and, furthermore, specifically discounted portions of Dr. Smith’s opinion that did not take
into account plaintiff’s pain, periodic findings of reduced strength and sensation, and the side
effects of medication.
23
to obtain an updated opinion. An ALJ is required to obtain an updated opinion from a medical
expert only if the ALJ believes that the additional medical evidence might change the
consultant’s opinion. Michael S. v. Berryhill, No. 17-CV-5586 (TNL), 2019 WL 1430138, at
*10 (D. Minn. Mar. 29, 2019) (citing SSR 96-6p). In light of the 15-month period during which
plaintiff did not seek treatment for back pain or his other physical conditions, there is no reason
to believe that the subsequent medical records would have altered Dr. Smith’s opinion. Plaintiff
alternatively argues that the ALJ should have referred plaintiff for a consultative examination or
contacted his treating physicians. The ALJ did not have a duty to seek additional information
from the treating physicians, because there were no undeveloped issues, nor was the ALJ

required to order an additional consultative examination. Duncan v. Saul, No. 4:18-CV-736
NAB, 2019 WL 4737117, at *4 (E.D. Mo. Sept. 27, 2019) (citing KKC ex rel. Stoner v. Colvin,
818 F.3d 364, 372 (8th Cir. 2016)).
Finally, plaintiff asserts that the ALJ’s determination that plaintiff could not work “in
vibration” is vague. Defendant represents that the jobs identified by the vocational expert
exclude exposure to vibration and thus there is no fatal ambiguity in the RFC. [Doc. # 26 at 13].
Similarly, plaintiff’s argument that the ALJ improperly substituted her opinion for that of his
treating providers fails because, as noted above, no treating provider offered an opinion
regarding plaintiff’s capacity to work.
* * * * *

For the foregoing reasons, the Court finds that the ALJ’s determination is supported by
substantial evidence on the record as a whole.
Accordingly,
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A separate Judgment shall accompany this Memorandum and Order.

/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE

Dated this 12th day of December, 2019.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10232220. Public record. Not legal advice.