# Valdez v. Berryhill

> District Court, E.D. Missouri · April 15, 2020

URL: https://www.frixlaw.com/law-library/cases/10232839

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** April 15, 2020
- **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

ROBERT VALDEZ, )
)
Plaintiff, )
)
v. ) Case No. 4:18 CV 2017 RWS
)
ANDREW SAUL, )
Commissioner of Social Security1 )
)
Defendant. )

MEMORANDUM AND ORDER
Plaintiff Robert Valdez brings this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3). Valdez seeks judicial review of the Commissioner’s decision
denying his application for disability benefits under the Social Security Disability
Insurance Program (SSDI), Title II of the Social Security Act, 42 U.S.C. §§ 401-
434, and for benefits under the Supplemental Security Income Program (SSI), Title
XVI of the Social Security Act, 42 U.S.C. §§ 1381-1385. For the reasons set forth
below, I will reverse the decision of the Commissioner and remand this matter for
further proceedings.

1 On January 19, 2019, Andrew Saul became the Commissioner of Social Security. Under Fed.
R. Civ. P. 25(d), Saul is automatically substituted for former Acting Commissioner Nancy A.
Berryhill as defendant in this action.
I. Procedural History
Valdez alleged disability beginning February 1, 2016. He asserts that he is

unable to work due to obesity, back problems (and resulting pain in other parts of
his body), diabetes, and hypertension.
Valdez applied for SSDI and SSI benefits on April 12, 2016. Valdez’s

application was initially denied on July 11, 2016. After a hearing before an
Administrative Law Judge (ALJ) on March 19, 2018, the ALJ issued a decision
denying benefits on June 13, 2018. On October 2, 2018, the Appeals Council
denied Valdez’s request for review. As a result, the ALJ’s decision is the final

decision of the Commissioner. 42 U.S.C. § 405(g).
In this action for judicial review, Valdez contends that the ALJ’s decision is
not supported by substantial evidence from the record. Valdez specifically argues

that the ALJ did not properly weigh the opinion of his treating physician, that the
ALJ did not properly evaluate Valdez’s subjective report, and that the ALJ omitted
certain limitations from the Residual Functional Capacity (RFC) assessment
without sufficient explanation. Valdez requests that I reverse the Commissioner’s

final decision and remand the matter for further evaluation. For the reasons that
follow, I will reverse the Commissioner’s decision and remand the case for further
proceedings.
II. Medical Records and Other Evidence Before the ALJ
With respect to the medical records and other evidence of record, I adopt

Valdez’s recitation of facts set forth in his Statement of Material Facts [ECF No.
10-1] insofar as the facts are admitted by the Commissioner. I also adopt the
additional facts set forth in the Commissioner’s Response to Plaintiff’s Statement

of Material Facts with Additional Material Facts [ECF No. 15-1], as they are
unrefuted by plaintiff. Specific facts will be discussed as needed to address the
parties’ arguments.
III. Legal Standards

To be entitled to disability benefits, a claimant must prove that he is unable
to perform any substantial gainful activity due to a medically determinable
physical or mental impairment that would either result in death or which has lasted

or could be expected to last for at least twelve continuous months. 42 U.S.C. §§
423(a)(1)(D), (d)(1)(a). To determine whether a claimant is disabled, the
Commissioner evaluates his claim through five sequential steps. 20. C.F.R.
§ 404.1520; Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (describing the

five-step process).
Steps one through three require that the claimant prove (1) he is not
currently engaged in substantial gainful activity, (2) he suffers from a severe

impairment, and (3) his disability meets or equals a listed impairment. 20 C.F.R.
§ 404.1520(a)(4)(i)-(iii). If the claimant does not suffer from a listed impairment
or its equivalent, the Commissioner’s analysis proceeds to steps four and five.

Step four requires the Commissioner to consider whether the claimant retains the
RFC to perform his past relevant work (PRW). Id. at § 404.1520(a)(4)(iv). The
claimant bears the burden of demonstrating he is no longer able to return to his

PRW. Pate-Fires, 564 F.3d at 942. If the Commissioner determines that the
claimant cannot return to his PRW, the burden shifts to the Commissioner at step
five to show that the claimant retains the residual functioning capacity (RFC) to
perform other jobs that exist in significant numbers in the national economy.

Id.; 20 C.F.R. § 404.1520(a)(4)(v).
The ALJ is required to evaluate the credibility of a claimant’s testimony,
including the claimant’s subjective complaints of pain, prior to determining his

RFC. Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001). In so doing,
the ALJ is not permitted to ignore the claimant’s testimony even if it is inconsistent
with objective medical evidence. Basinger v. Heckler, 725 F.2d 1166, 1169 (8th
Cir. 1984). After considering the claimant’s testimony, the ALJ may disbelieve it

if the testimony is inconsistent with the record as a whole. Battles v. Sullivan, 902
F.2d 657, 660 (8th Cir. 1990). To properly evaluate the claimant’s subjective
complaints, the ALJ must consider the factors enumerated in Polaski v. Heckler:

[The] claimant’s prior work record, and observations by third parties
and treating and examining physicians relating to such matters as: (1)
the claimant’s daily activities; (2) the duration, frequency, and
intensity of the pain; (3) precipitating and aggravating factors; (4)
dosage, effectiveness and side effects of medication; and (5)
functional restrictions.

739 F.2d 1320, 1322 (8th Cir. 1984). While the ALJ must consider
the Polaski factors, he need not enumerate them specifically. Wildman v. Astrue,
596 F.3d 959, 968 (8th Cir. 2010). When the ALJ explicitly disbelieves the
claimant’s testimony and gives good reasons for his disbelief, a reviewing court
will typically defer to the ALJ’s finding. Casey v. Astrue, 503 F.3d 687, 696 (8th
Cir. 2007). The ALJ retains the responsibility to develop the record fully and
fairly in the course of the non-adversarial administrative hearing. Hildebrand v.
Barnhart, 302 F.3d 836, 838 (8th Cir. 2002).

In reviewing the ALJ’s denial of Social Security disability benefits, my role
is to determine whether the Commissioner’s findings comply with the relevant
legal requirements and 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 is enough that a reasonable mind would find it adequate to
support the Commissioner’s conclusion.” Id. In determining whether the evidence
is substantial, I must consider evidence that both supports and detracts from the

Commissioner’s decision. Id. As long as substantial evidence supports the
decision, I may not reverse it merely because substantial evidence exists in the
record that would support a contrary outcome or because I would have decided the
case differently. See Johnson v. Astrue, 628 F.3d 991, 992 (8th Cir. 2011). I must
“defer heavily to the findings and conclusions of the Social Security

Administration.” Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010) (internal
citation omitted).
IV. ALJ’s Decision

In his written decision, the ALJ found that Valdez has not engaged in
substantial gainful activity since the alleged disability onset date of February 1,
2016. The ALJ found Valdez’s degenerative disc disease and diabetes mellitus
with neuropathy to be severe impairments. The ALJ determined that Valdez’s

severe impairments did not meet or medically equal a listed impairment in 20
C.F.R. Part 404, Subpart P, Appendix 1. The ALJ next found that Valdez
has the residual functional capacity to perform sedentary work as defined in
20 C.F.R. § 404.1567(a) except that he is unable to operate any foot control
operations. He is unable to climb ladders, ropes or scaffolds, kneel, crouch
and crawl, but he can occasionally climb ramps or stairs and stoop. He is
limited to occupations that can be performed while using a hand held
assistive device required for prolonged ambulation, at all times when
standing, and when the opposing arm can be used to lift and carry up to the
exertional limits. He is to avoid exposure to extreme vibration, all
operational control of moving machinery, working at unprotected heights,
and the use of hazardous machinery.

(Tr. 18).
The ALJ found that Valdez was unable to perform any PRW (Tr. 21).
Considering Valdez’s RFC, age, education, and work experience, the ALJ relied
upon vocational expert testimony to support a conclusion that Valdez could
perform work as it exists in significant numbers in the national economy, and
specifically in occupations such as a ticket taker, optical goods assembler, or

circuit board touch-up worker (Tr. 22). As a result, the ALJ found Valdez not to
be disabled at any time from February 1, 2016 through the date of the decision
(Tr. 22).

V. Discussion
In the decision, the ALJ concludes that the evidence of record does not
support the opinion testimony from Dr. Jason Romancik and the subjective
testimony from Valdez. In reaching these conclusions, the ALJ does not provide

good reasons or further detail about what in the record forms their bases. I will
remand this case so the ALJ can further explain and support his reasons for
providing limited weight to the opinion of treating physician Dr. Jason Romancik

and for concluding that Valdez’s statements about the intensity, persistence, and
limiting effects of his symptoms are not entirely consistent with the medical
evidence and other evidence in the record. On remand, the ALJ should also
explain why he did not include any limitations in Valdez’s RFC regarding

Valdez’s ability to twist, need for unscheduled breaks, and need to be absent from
work more than two times per month.
a. Dr. Jason Romancik’s Opinion
Dr. Jason Romancik is Valdez’s treating physician. (Tr. 21) (“Jason

Romancik, M.D., the claimant’s treating physician . . .”). Dr. Romancik submitted
medical source statements evaluating Valdez’s physical and mental health (Tr.
332-39). The ALJ accorded limited weight to the Medical Source Statement

Physical (MSSP) and great weight to the Medical Source Statement Mental
(MSSM). The ALJ did not sufficiently explain why he accorded only limited
weight to Dr. Romancik’s MSSP.
In analyzing medical evidence, “[o]rdinarily, a treating physician’s opinion

should be given substantial weight.” Rhodes v. Apfel, 40 F.Supp.2d 1108, 1119
(E.D. Mo. 1999) (quoting Metz v. Shalala, 49 F.3d 374, 377 (8th Cir. 1995)). A
treating physician’s opinion will typically be given controlling weight when the

opinion is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in
[the] record.” Prosch v. Apfel, 201 F.3d 1010, 1012–1013 (8th Cir. 2000) (quoting
20 C.F.R. § 404.1527(c)(2)). This is so because a treating physician is

likely to be the medical professional[] most able to provide a detailed,
longitudinal picture of [a claimant’s] medical impairment(s) and may
bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief
hospitalizations.

20 C.F.R. § 404.1527(c)(2). Treating physicians’ opinions, however, do “not
automatically control, since the record must be evaluated as a whole.” Id. at 1013
(internal citation removed). The opinions may be discounted or disregarded where

other “medical assessments ‘are supported by better or more thorough medical
evidence.’” Id. (quoting Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997)).
Whatever weight the ALJ accords the treating physician’s report, the ALJ is

required to give good reasons for the particular weight given. See Holmstrom v.
Massanari, 270 F.3d 715, 720 (8th Cir.2001). If, as here, the ALJ determines the
opinion of a treating physician is not well supported or is inconsistent with other
evidence, the ALJ must consider: (1) the length of the treatment relationship and

the frequency of examination, (2) the nature and extent of the treatment
relationship, including the treatment provided and the kind of examination or
testing performed, (3) the degree to which the physician’s opinion is supported by

the relevant evidence, (4) consistency between the opinion and the record as a
whole, (5) whether or not the physician is a specialist in the area upon which an
opinion is rendered, and (6) other factors that may contradict or support the
opinion. See Rhodes, 40 F.Supp.2d at 1119; 20 C.F.R. § 404.1527(c)(2)-(6).

The ALJ’s discussion regarding Dr. Romancik’s MSSP fails to demonstrate
what of Dr. Romancik’s opinion is unsupported by substantial evidence in the
record such that the entire opinion should only receive limited weight. It also does

not demonstrate the ALJ considered the factors required by 20 C.F.R.
§ 404.1527(c)(2)-(6). The reason the ALJ provided for assigning limited weight
to Dr. Romancik’s MSSP is that the MSSP is too restrictive in evaluating the

restrictions Valdez experiences with his hands and ability to stoop. The ALJ did
not further support this determination with specific references to the record, instead
generally referring to Valdez’s hand use restrictions as being unsupported “given

the treatment records and consultative examination,” and stating that “the treatment
records fail to show an inability to stoop given [Valdez’s] x-rays and MRI scans.”
The ALJ also separately recounted some of the objective medical evidence
regarding Valdez’s ability to use his hands and to stoop but did not explain how

that evidence undermined Dr. Romancik’s opinion.
Moreover, the ALJ’s discounting of Dr. Romancik’s opinion on the basis
that it was overly restrictive in its recommendation on Valdez’s ability to stoop

does not appear to be supported by substantial evidence from the record. The ALJ
found “the treatment records fail to show an inability to stoop given [Valdez’s] x-
rays and MRI scans.” (Tr. 21) The ALJ does not provide a citation for, or further
explain, this determination. I am unable to determine what from Valdez’s MRI

and x-ray records support the ALJ’s finding that Dr. Romancik’s opinion is
without support.
In his response brief, the Commissioner also cites the x-ray and MRI records

to which the ALJ’s decision refers. These records include diagnoses and
observations such as “the lumbar spine is hypomobile” (Tr. 446) and Valdez has
“severe bilateral neuroforaminal stenosis” (Tr. 448). The records consistently

indicate severe L5-S1 disc degenerative change and “extreme back pain during the
period at issue.” (Tr. 21) The ALJ does not explain how the extensive objective
evidence of Valdez’s lower back problems fails to support Dr. Romancik’s opinion

on Valdez’s ability to stoop.
Even if the ALJ properly concluded that Dr. Romancik’s MSSP should not
be accorded controlling weight, he did not appear to consider the factors required
by 20 C.F.R. § 404.1527(c)(2)-(6) in determining the proper weight to accord it.

Although the ALJ wrote that he “considered opinion evidence in accordance with
the requirements of 20 CFR 404.1527,” the opinion does not appear to contain any
actual consideration of the factors cited in the regulation. This falls short of the

standard that an ALJ will “always give good reasons ... for the weight [accorded a]
treating source’s opinion.” 20 C.F.R. § 404.1527(c)(2); Reed v. Barnhart, 399
F.3d 917, 921 (8th Cir. 2005).
On remand, the ALJ should further consider the medical evidence of record

and provide a clearer explanation of his decision to accord limited weight to
treating physician Dr. Romancik’s MSSP.
b. Valdez’s Testimony
The ALJ found that Valdez’s impairments could reasonably be expected to

cause some of Valdez’s alleged symptoms (Tr. 20). However, the ALJ also found
that Valdez’s statements “concerning the intensity, persistence, and limiting effects
of [his] symptoms [were] not entirely consistent with the medical evidence and

other evidence in the record for the reasons explained in this decision.” (Id.) The
ALJ does not detail his reasons for discounting Valdez’s statements, explain which
statements were inconsistent with the record, or describe what from the evidence
was inconsistent with them.

When discounting Valdez’s testimony regarding the severity of his
symptoms, the ALJ should have detailed “the reasons for discrediting the
testimony and set forth the inconsistencies found.” Lewis v. Barnhart, 353 F.3d

642, 647 (8th Cir. 2003). The ALJ’s determination of how much to credit Valdez’s
testimony should also “be clearly articulated so the individual and any subsequent
reviewer can assess how the adjudicator evaluated the individual’s symptoms.”
SSR 16-3p.

On review, I was unable to assess how the ALJ evaluated the presence and
severity of Valdez’s symptoms. After finding that “the medical evidence and other
evidence of record” was inconsistent with Valdez’s statements about the severity

of his symptoms, the ALJ recited some of Valdez’s relevant medical history. This
recitation, however, did not indicate how, and to what extent, it related back to
Valdez’s claims. The evidence of record, as summarized by the ALJ, appears to

support Valdez’s testimony concerning the severity of his symptoms. To the
extent the ALJ found some of the evidence inconsistent with Valdez’s testimony,
he did not explain on what evidence he relied in particular, or how the record as a

whole fails to support Valdez’s testimony.
On remand, the ALJ should clearly explain which of Valdez’s complaints
were inconsistent with the evidence and to what extent the complaints and
evidence were inconsistent. The ALJ should more overtly incorporate the factors

set forth in 20 C.F.R. § 404.1529 and should clearly explain how those factors
result in the weight he accorded Valdez’s testimony.
c. Residual Functional Capacity Limitations

The RFC does not reference Valdez’s ability to twist, take unscheduled
breaks, and be absent from work. Valdez’s testimony and Dr. Romancik’s MSSP
both state that Valdez experiences limitations in these areas. The RFC assessment
does not explain why these opined limitations are absent from the RFC. The

limitations do not appear to be related to the portions of Dr. Romancik’s MSSP
that the ALJ found to be inconsistent with the medical evidence in the record.
“If the RFC assessment conflicts with an opinion from a medical source, the

adjudicator must explain why the opinion was not adopted.” SSR 96-8P (S.S.A.
July 2, 1996). If the ALJ decided to omit the limitations because he assigned
limited weight to Dr. Romancik’s MSSP or Valdez’s testimony, because he did not

find support for the limitations in the record, or because the limitations were
inconsistent with the record, the ALJ should have more clearly explained his
reasoning in the RFC assessment. The decision to exclude these restrictions had a

bearing on the final determination of whether there are jobs in the national
economy in which Valdez could work. If the RFC included a limitation stating
Valdez would need to be absent from work more than two days per month, there
would be no jobs available in the national economy in which Valdez could be

employed. (Tr. 46-47)
On remand, the ALJ should clearly explain his reasons for deciding to omit
from the RFC any limitations on Valdez’s ability to twist, take unscheduled breaks,

and be absent from work.
VI. Conclusion
When reviewing an adverse decision by the Commissioner, my task is to
determine whether the decision is supported by substantial evidence on the record

as a whole. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001). “Substantial
evidence is defined to include such relevant evidence as a reasonable mind would
find adequate to support the Commissioner’s conclusion.” Id. Where substantial

evidence supports the Commissioner’s decision, this Court may not reverse the
decision merely because substantial evidence exists in the record that would have
supported a contrary outcome or because another court could have decided the case
differently. Id.; see also Igo v. Colvin, 839 F.3d 724, 728 (8th Cir. 2016); Buckner

v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011).
For the reasons set out above, I find that the ALJ did not sufficiently explain
why he accorded limited weight to Dr. Romancik’s MSSP, did not provide good
reasons for discounting Valdez’s testimony about the severity of his pain, and did
not explain why he fashioned an RFC that excluded several limitations, including
restrictions on twisting, unscheduled breaks, and the number of days per month
Valdez would be absent from work. These issues are significant and directly
impact the ultimate determination of whether Valdez is able to work. As a result, I
will remand this case for further proceedings.
Accordingly,
IT IS HEREBY ORDERED that that the decision of the Commissioner is
REVERSED, and the case is REMANDED for further proceedings in accordance
with this memorandum and order.
A separate Judgment is entered herewith.

A i

ROD NEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 15th day of April, 2020.

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10232839. Public record. Not legal advice.