Myers v. Berryhill

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

NORTHERN DIVISION

THERESA L. MYERS, )

)

Plaintiff, )

)

v. ) No. 2:18CV107 PLC

)

ANDREW SAUL, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM AND ORDER

Plaintiff Theresa Myers seeks review of the decision by the Commissioner of Social

Security Andrew Saul1, denying her application for Disability Insurance Benefits (DIB) under the

Social Security Act (Act). Because the Court finds that substantial evidence supports the decision

to deny benefits, the Court affirms the denial of Plaintiff’s application.

I. Background & Procedural History

In February 2015, Plaintiff, then sixty years old, filed an application for Disability

Insurance Benefits alleging that she was disabled as of September 20, 2014 due to: “compression

fractures C-1 through T-1, degenerative bone disease, thyroid, high cholesterol, depression,

anxiety attacks.” (Tr. 104) The Social Security Administration (SSA) denied Plaintiff’s claims,

and she filed a timely request for a hearing before an administrative law judge (ALJ). (Tr. 134-38,

141-42) After the ALJ issued a decision in October 2016 finding Plaintiff not disabled, Plaintiff

appealed to the SSA Appeals Council, which remanded the case to the ALJ for “further evaluation”

of the opinion of Plaintiff’s treating physician, Dr. Sparks. (Tr. 129-33)

1 At the time this case was filed Nancy A. Berryhill was the Deputy Commissioner of Social

Security.

The ALJ conducted a second hearing in February 2018. (Tr. 32-70) On remand, the ALJ

applied the five-step evaluation set forth in 20 C.F.R. § 404.1520(a) and issued a decision dated

May 4, 2018, concluding that Plaintiff “has not been under a disability within the meaning of the

Act from September 20, 2014, through the date of this decision.” (Tr. 16) Plaintiff filed a request

for review of the ALJ’s decision with the SSA Appeals Council, which denied the request. (Tr. 1–

6) Plaintiff has exhausted all administrative remedies, and the ALJ’s decision stands as the

Commissioner’s final decision. Sims v. Apfel, 530 U.S. 103, 106–07 (2000).

II. Evidence before the ALJ

A. Testimony

Plaintiff testified that she was sixty-three years old and had previously worked as the

executive director of Rural Advocates for Independent Living. (Tr. 37) In that position, she

supervised up to twenty-seven staff members, wrote grants, reviewed “consumers’ files,” attended

board meeting, and communicated with other agencies. (Id.) Plaintiff stated that she stopped

working in May 2014 because she was terminated for “[l]arge amounts of absenteeism … I would

say two to three days a week sometimes, or I would call in late because the pain was too severe to

be able to function.” (Tr. 38)

Plaintiff testified that she had compression fractures in her spine from C3 to T1. (Tr. 39)

Plaintiff explained that the pain “starts at the base of my neck and runs down to the middle of my

shoulder blades, and a lot of times … my arms will burn from the inside out. I have no feeling in

my hands.” (Tr. 39) Plaintiff explained that the “mobility issues” in her arms had been “going on

for a great number of years, but it’s been getting progressively worse[.]” (Id.)

Plaintiff affirmed that, in 2011, she underwent a “hemilaminectomy and deconstruction by

thermal ablation on the right” at C4-5. (Tr. 51) Plaintiff testified that the surgery did not alleviate

any of her symptoms. (Tr. 52) Plaintiff had seen several specialists to discuss further surgical

options, but “they wanted [ ] to put a steel rod in [her] neck that runs from C3 to T1,” to “fuse all

of those vertebra[e]…with no guarantee that it will stop the pain or that [she] would regain any of

the numbness or mobility.” (Tr. 42) Plaintiff was hesitant to proceed with such a surgery because

“the steel rods will continue to apply pressure to the rest of the spine, leading [the] degeneration

to expand” and she feared losing more mobility. (Id.) Plaintiff managed her pain by alternating

hot and cold presses and taking hydrocodone. (Tr. 53) She denied side effects from her

medications. (Id.)

Plaintiff did not shower unless her husband was home and did not wash her hair more than

once a week because “it hurts to raise my hands up over my head.” (Tr. 45) In regard to household

chores, Plaintiff stated “[we] use a lot of paper plates because my ability to do dishes has

decreased” and “I drop things all the time.” (Tr. 43) Plaintiff elaborated that “[c]ooking has

always been one of my loves, but I find that with my [limited] mobility and the pain, I no longer

get to enjoy that.” (Id.) Plaintiff stated that her daughter helped her with vacuuming, dusting,

laundry, and shopping. (Id.) She avoided driving because “you’re supposed to have both … hands

on the wheel. I cannot do that. They go numb and the pain becomes excruciating.” (Tr. 49)

Plaintiff could no longer open bottles, type, or “hold a pen for any long period of time.” (Tr. 57-

58)

Plaintiff attributed her depression to her “disability because I’m not the person I used to

be. I can’t do the things I used to do….” (Tr. 46) Plaintiff explained that the depression “is

uncontrollable, wanting to just cry, and I feel worthless.” (Tr. 47) Plaintiff cried “at least once a

day” due to pain and frustration. (Tr. 56) In regard to her anxiety, Plaintiff testified that she often

experienced anxiety attacks “in the middle of the night where I feel like the world is caving in on

me. I can’t breath. I can’t sleep …. I have heart palpitations, cold sweats, or chills.” (Tr. 47)

Plaintiff had difficulty sleeping because she awoke “about every hour in pain.” (Tr. 56)

A vocational expert also testified at the hearing. (Tr. 60) The ALJ asked the vocational

expert to consider a hypothetical individual with Plaintiff’s age, education, past work experience,

and the ability to perform sedentary work with the following limitations:

They could frequently reach overhead and in all directions with both the

right and left arm. They could frequently handle and finger with the left and

right hand. They should never climb ladders, ropes, or scaffolds. They could

less-than occasionally crawl. They should never work at unprotected

heights or around moving mechanical parts. They should never work in

vibration.

(Tr. 64) The vocational expert stated that such person could perform Plaintiff’s past work as a

social welfare administrator. (Id.)

When the ALJ modified the hypothetical such that the individual could only “occasionally

reach,…both overhead and in all directions, with both left and right arms; and only occasionally

hand[le] and finger[] with the left and right hand; and never […] crawl,” the vocational expert

stated that the individual would still be able to perform Plaintiff’s past work. (Tr. 64) However,

if the hypothetical further limited the individual to simple, routine tasks and simple work-related

decisions, the hypothetical individual would not be able to perform Plaintiff’s past work. (Tr. 64-

65) The vocational expert also opined that a limitation to less than occasional bilateral handling

or fingering would preclude employment because “[a]ny job I can think of in the sedentary job

base would require a good bilateral use of the upper extremities.” (Tr. 67-68)

B. Medical Records

The earliest medical record from Plaintiff’s primary care physician Dr. Sparks was dated

May 2011. (Tr. 468) Dr. Sparks noted he was treating Plaintiff for hypothyroidism,

hyperlipidemia, chronic pain, anxiety, and major depressive disorder, and he prescribed Lasix,

Mevacor, Prozac, Synthroid, Vicodin, and Xanax. (Tr. 468, 470) The record reflects that Dr.

Sparks saw Plaintiff eleven times in 2011. (Tr. 385)

In December 2011, an MRI of Plaintiff’s cervical spine revealed “significant cervical spine

stenosis at C4/C5, C5/C6, and C6/C7.” (Tr. 374) Dr. Flood at the Laser Spine Institute informed

Plaintiff that the standard of care for such significant stenosis was a cervical full bilateral

decompression with reconstruction, which would include fusion and instrumentation. (Id.)

Plaintiff decided against any spinal fusion and requested a minimally invasive alternative. (Id.)

Dr. Flood subsequently performed a “deconstruction by thermal ablation of the paravertebral facet

joint nerves, right C4/C5” and a “left C4 hemilaminectomy.” (Tr. 375)

Between January 2012 and February 2013, Plaintiff saw Dr. Sparks nine times and

regularly complained of low energy and poor sleep. (Tr. 384, 427, 430, 434, 438) On examination

in December 2012, Dr. Sparks noted that Plaintiff had normal posture, gait, sensation, coordination

and deep tendon reflexes in her upper and lower extremities. (Tr.428) Later that month, Plaintiff

described “stabbing and shooting” pain in the mid-cervical spine. (Tr. 424) In February 2013, Dr.

Sparks switched Plaintiff from Vicodin to hydrocodone-acetaminophen. (Tr. 422)

Between March 2013 and March 2014, Dr. Sparks saw Plaintiff eight times. (Tr. 384) In

June 2013, Plaintiff informed Dr. Sparks that she “felt well with no complaints” and had “good

energy” but was sleeping poorly. (Tr. 412) On examination in June and December 2013, Dr.

Sparks observed that Plaintiff was alert and oriented with no memory impairments, had normal

sensation and coordination, and had intact upper and lower extremity reflexes. (Tr. 413, 408) In

Marh 2014, after several visits at which Plaintiff expressed no real changes in her pain, Dr. Sparks

decreased Plaintiff’s dosage of hydrocodone-acetaminophen. (Tr. 403)

Plaintiff presented to Dr. Sparks seven times between May 2014 and August 2015. (Tr.

384, 491, 496) In February 2015, Plaintiff complained that her pain was “worse than it had been

in a long time” and rated it a 10/10. (Tr. 386) Additionally, Plaintiff reported that the “numbness

seemed to be progressing” and she was still sleeping poorly. (Id.) On examination, Dr. Sparks

found that Plaintiff had: no memory impairment; normal attention span and ability to concentrate;

normal sensation and coordination; and normal deep tendon flexes in all extremities. (Tr. 388)

In May 2015, Plaintiff informed Dr. Sparks that she did not feel well and her pain remained

at 10/10. (Tr. 491) Dr. Sparks noted that Plaintiff had decreased grip strength and sensation in

both hands, a burning sensation in both hands and arms, and her weight was down sixteen pounds

due to lack of appetite. (Id.) Plaintiff was alert, oriented, and well-groomed and her posture and

gait were normal. (Tr. 494) Dr. Sparks increased Plaintiff’s hydrocodone-acetaminophen. (Tr.

495) When Plaintiff returned to Dr. Sparks’ office in August 2015, her grip strength had not

improved and she “seem[ed] very depressed.” (Tr. 496)

In September 2015, Dr. Sparks ordered another MRI of Plaintiff’s cervical spine, which

revealed severe degenerative disc disease with “posterior endplate osteophyte and/or

bulging…moderate at C4-5 through C6-7…and loss of disc height [] moderate at C4-5, and severe

at C5-6 [and] C6-7.” (Tr. 476) The MRI also revealed: “facet arthritic change severe at C3-

4…[and] severe at C4-5 [] allowing moderate degenerative anterolisthesis”; “[c]entral canal spinal

stenosis” severe at C3-4 through C5-6 and “almost severe” at C6-7”; and “neuroforaminal spinal

stenosis” to be and “severe, bilaterally” at C4-5 and moderate at C3-4, C5-6, and C6-7. (Id.)

In October 2015, Dr. Harden completed a psychiatric evaluation of Plaintiff and diagnosed

her with PTSD and major depressive disorder. (Tr. 478-80) On examination, Dr. Harden observed

that Plaintiff had “good grooming” and “maintained appropriate interactive eye contact” and “a

well-modulated affect,” but showed “paucity of spontaneous movement” while seated, “slow,

cautious gait,” and “somewhat rigid, upright” posture. (Tr. 479) Dr. Harden noted that, “despite

her use of multiple psychiatric medications [including Prozac and Xanax] … she continues to have

active, ongoing symptoms of major depressive disorder and posttraumatic stress disorder.” (Tr.

480) Dr. Harden “strongly encouraged” Plaintiff “to consider the pursuit of mental health

treatment involving psychotherapy and prescription medications with a mental health

professional.” (Id.)

At her appointment with Dr. Sparks in December 2015, Plaintiff reported that her grip

strength and sensation had not improved and she “hurts and doesn’t feel good.” (Tr. 501) Dr.

Sparks observed that Plaintiff “seems very depressed” and had lost another ten pounds due to lack

of appetite. (Id.) Plaintiff reported that she was still unable to find a job and believed this was due

to her age. (Id.) Dr. Sparks observed that Plaintiff was alert, oriented, and well-groomed. (Tr.

503) She had normal posture and gait, no memory impairment, normal attention span, and normal

sensation, coordination, and deep tendon reflexes. (Tr. 503-04)

In February 2016, Dr. Sparks referred Plaintiff to Dr. Bondurant for a neurosurgical

consultative examination. (Tr. 482-89) On examination, Dr. Bondurant observed that Plaintiff

“moves about the office with fair ease” and her upper and lower extremity strength was 5/5 with

“some giveaway weakness which clears with encouragement.” (Tr. 485-86) Dr. Bondurant noted

“[s]ensation is accurate with pinprick and fine touch challenges, save for the third, fourth, and fifth

digits of the left hand” and “[p]rolonged flexion of the wrists re-creates hand paresthesia in the

second, third, fourth digits of bilateral hands after approximately 30 seconds’ time.” (Tr. 486)

Dr. Bondurant suggested that “peripheral neuropathic changes, to include entrapment” might be

underlying her upper extremity problems and suggested electrophysiologic studies of the upper

extremities. (Tr. 487-88) After discussing her options, Plaintiff opted to “stay the course with

redoubled efforts with her nonoperative efforts.” (Tr. 488)

In March 2016, Dr. Sparks recorded that Plaintiff had lost another eight pounds, was “in

quite a bit of pain,” had decreased energy, and had stopped taking her cholesterol medicine because

she “cannot afford it with all her other medications.” (Tr. 509) Her grip strength and sensation

had not improved. (Tr. 509) Plaintiff’s physical examination was normal. (Tr. 512-13)

In early July 2016, Plaintiff complained that she was in “quite a bit of pain today,” and Dr.

Sparks noted that she had lost another ten pounds. (Tr. 519) On examination, Dr. Sparks observed:

normal posture and gait; alert and oriented with no memory impairment; normal attention span

and ability to concentrate; normal sensation; and normal coordination and upper and lower

extremity deep tendon reflexes. (Tr. 520) Dr. Sparks continued Plaintiff’s medication and

prescribed Paroxetine HCl for depression. (Id.)

Dr. Sparks completed a physical medical source statement (MSS) for Plaintiff in July 2016.

(Tr. 516-18) Dr. Sparks stated that Plaintiff “has severe degenerative disc disease of cervical spine

with numbness of hands with movement of arms,” and he characterized her pain as “severe.” (Tr.

518) Dr. Sparks estimated that Plaintiff could: sit for less than five minutes and stand for less

than five minutes at a time for a total of less than one hour in a workday; frequently lift and/or

carry ten pounds during a typical workday; frequently perform fine manipulation with both hands;

and occasionally perform gross manipulation with both hands. (Tr. 516) Dr. Sparks opined that

Plaintiff would miss at least fifteen percent of the workday due to unscheduled work breaks and at

least two days of work per month due to pain, fatigue, or other medical issues. (Tr. 517) Finally,

Dr. Sparks stated that Plaintiff would have to assume reclining and supine positions one to three

times per day for thirty minutes. (Tr. 516)

In October 2016, Plaintiff complained to Dr. Sparks of dizziness, decreased energy, and

poor sleep and, in January 2017, Dr. Sparks noted that Plaintiff was “having increased pain which

she feels has added to her depression.” (Tr. 531, 534) Dr. Sparks increased Plaintiff’s Paroxetine.

(Tr. 536) Physical and mental examinations at both appointments yielded normal results. (Tr.

532, 535)

In April 2017, Cheryl Patterson, M.Ed. evaluated Plaintiff using a Purdue Pegboard Test.2

(Tr. 523) Plaintiff’s “right hand trial average” was “6 standard deviations below the mean in this

segment,” “left hand trial average” was “7 standard deviations below the mean,” and “both hands

trial average” was “6 standard deviations beneath the mean in this segment of the test.” (Tr. 523-

24) Plaintiff was unable to complete the “right+left+both assembly test.”3 (Tr. 524) In response

to interrogatory questions, Ms. Patterson stated that Plaintiff “did not show adequate manual

dexterity according to the statistical charts provided in the testing manual” and was not “capable

of performing well at a job requiring the use of her hands.” (Id.) Ms. Patterson concluded: “Since

[Plaintiff] scored so poorly, expressed intense physical discomfort and was unable to complete this

brief assessment, I do not see how she can function in the workplace.” (Tr. 529)

2 Ms Patterson administered the Pursue Pegboard Test, Model 32020, which “involves the

subject’s comprehension and manual dexterity in placing pins, collars, and washers in

appropriate holes.” (Tr. 523)

3 Ms. Patterson recorded the following observations:

While [Plaintiff’s] demeanor throughout the interview was very compliant, her

body language expressed extreme discomfort. During the various segments of

the test, [Plaintiff’s] posture was rigid and her head shook as if she had a tremor.

She frequently massaged and squeezed her hands, which appeared red. Her

fingers visibly shook as she attempted to grasp each of the small test articles,

dropping them. After saying she could not finish the final portion of the test,

[Plaintiff] left the office in tears.

(Tr. 525)

In May 2017, Dr. Sparks noted that Plaintiff was experiencing “increased pain with the

weather change” and, in July 2017, Plaintiff reported “numbness from the neck issues” as well as

“some trouble with her hands and elbows.” (Tr. 537, 539) Plaintiff also complained of increasing

dizziness, associated with loss of balance and paresthesia,” which caused her to fall down the stairs

and “list[] toward the left when walking[.]” (Tr. 539) Dr. Sparks suggested a CT scan of the brain,

but Plaintiff refused. (Tr. 541) Dr. Sparks continued to record that Plaintiff had normal posture

and gait, no memory impairment, normal attention span and concentration, and normal sensation,

coordination, and extremity deep tendon reflexes. (Tr. 538) When Plaintiff followed up with Dr.

Sparks in July 2017, she again reported pain and dizziness. (Tr. 539) Plaintiff’s physical and

mental examinations were normal, and Dr. Sparks continued her medications. (Tr. 540)

Plaintiff returned to Dr. Sparks’ office in October 2017 for “chronic opioid management.”

(Tr. 542) Dr. Sparks noted: “Pain scores include a current pain level of 9/10, an average pain

level of 6/10 (with pain medication) and maximum pain level of 10/10.” (Tr. 542) The pain was

aching, constant, and “exacerbated by use of the extremity (has numbness in both arms).” (Tr.

542) In January 2018, Plaintiff’s pain was the same, she was “having a lot of trouble with

depression,” and she reported a recent fall on ice. (Tr. 545) Dr. Sparks’ examination noted normal

posture and gait, no memory impairment, normal attention span and concentration, and normal

sensation, coordination, and extremity deep tendon reflexes. (Tr. 546) Dr. Sparks prescribed

methylprednisolone and continued her Xanax and Paroxetine. (Id.)

III. Standards for Determining Disability under the Act

Eligibility for disability benefits under the Act requires a claimant to demonstrate that he

or she suffers from a physical or mental disability. 42 U.S.C. § 423(a)(1). The Act defines disability

as “the inability to do 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 not less than 12 months.” 42 U.S.C. § 423(d)(1)(A);

see also 20 C.F.R. § 404.1505(a). The impairment must be “of such severity that [the claimant] is

not only unable to do [her] previous work but cannot, considering [her] age, education, and work

experience, engage in any other kind of substantial gainful work which exists in the national

economy....” 42 U.S.C. § 1382c(a)(3)(B).

To determine whether a claimant is disabled, the Commissioner engages in a five-step

evaluation process. See 20 C.F.R. § 404.1520. Those steps require a Plaintiff to show that he or

she: (1) is not engaged in substantial gainful activity; (2) has a severe impairment or combination

of impairments which significantly limits his or her physical or mental ability to do basic work

activities or (3) has an impairment which meets or exceeds one of the impairments listed in 20

C.F.R., Part 404, Subpart P, Appendix 1; (4) is unable to return to his or her past relevant work;

and (5) the impairments prevent him or her from doing any other work. Id.

IV. The ALJ’s Decision

The ALJ applied the five-step evaluation process set forth in 20 C.F.R. Section 404.1520

and found that: (1) Plaintiff had not engaged in substantial gainful activity since September 20,

2014, the alleged onset date of disability; and (2) had the severe impairment of degenerative disc

disease of the cervical spine. (Tr. 17) Additionally, the ALJ determined that Plaintiff had the

following non-severe impairments: hypothyroidism, hyperlipidemia, bronchitis, pharyngitis,

gastroenteritis, obesity, depression, anxiety, panic attacks, and PTSD. (Tr. 18) At step three, the

ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met

or medically equaled the severity of the listed impairments in 20 C.F.R. Part 404, Subpart P,

Appendix 1. (Tr. 17-20)

The ALJ found that, although Plaintiff’s “medically determinable impairment could

reasonably be expected to cause the alleged symptoms, her statements concerning the intensity,

persistence and limiting effects of these symptoms are not entirely consistent with the medical

evidence. . ..” (Tr. 21) The ALJ explained that Plaintiff’s “largely conservative treatment for her

condition, including pain medication prescribed by her primary care provider and hot and cold

presses, but no invasive surgical procedures” and unremarkable physical examinations

undermined her subjective complaints of pain. (Tr. 21-22) In regard to Plaintiff’s mental

impairments, the ALJ acknowledged that Plaintiff “has suffered from depression for much of her

adult life,” but noted she received no “formal mental health treatment, with only prescriptions for

psychiatric medication from her primary care provider” and her treating providers regularly

observed that she was well-groomed. (Tr. 21)

The ALJ determined that Plaintiff had the residual functional capacity (RFC) to perform

sedentary work with the following limitations:

[S]he can occasionally bilaterally reach overhead and in all other

directions. The claimant can occasionally finger and handle with

both hands. She can never crawl or climb ladders, ropes, or

scaffolds. The claimant can never work at unprotected heights or

around moving mechanical parts or vibration.

(Tr. 20) Based on the vocational expert’s testimony, the ALJ determined that the Plaintiff was

capable of performing her past relevant work as an “administrative social worker.”4 (Tr. 25-26)

The ALJ therefore concluded that Plaintiff was not disabled. (Tr. 26)

V. Discussion

4 At the hearing, the vocational expert classified Plaintiff’s past work as “administrator, social

welfare, DOT code 195.117-010.” (Tr. 64) In his decision, the ALJ referred to Plaintiff’s past

position as “social worker” and “administrative social worker,” but cited the same DOT code as

the vocational expert. (Tr. 25-26)

Plaintiff claims the ALJ erred in: (1) failing to find that her anxiety, depression, and PTSD

were severe impairments; and (2) determining her RFC because substantial evidence did not

support the finding that she was capable of occasional handling and fingering. [ECF No. 19] In

response, Defendant argues that substantial evidence in the record as a whole supported the ALJ’s

findings as to the severity of Plaintiff’s mental impairments and the RFC determination. [ECF No.

24]

A. Standard for Judicial Review

A court must affirm an ALJ’s decision if it is supported by substantial evidence. 42 U.S.C.

§ 405(g). “Substantial evidence is less than a preponderance, but enough so that a reasonable mind

might find it adequate to support the conclusion.” Combs v. Berryhill, 878 F.3d 642, 646 (8th Cir.

2017). In determining whether the evidence is substantial, a court considers evidence that both

supports and detracts from the Commissioner’s decision. Pate-Fires v. Astrue, 564 F.3d 935, 942

(8th Cir. 2009). However, “as long as substantial evidence in the record supports the

Commissioner’s decision, [the Court] may not reverse it because substantial evidence exists in the

record that would have supported a contrary outcome, or because the Court would have decided

the case differently.” Cline v. Colvin, 771 F.3d 1098, 1102 (8th Cir. 2014).

A court “do[es] not reweigh the evidence presented to the ALJ and [it] defer[s] to the ALJ’s

determinations regarding the credibility of testimony, as long as those determinations are

supported by good reason and substantial evidence.” Renstrom v. Astrue, 680 F.3d 1057, 1064

(8th Cir. 2012). “If, after reviewing the record, the court finds it is possible to draw two

inconsistent positions from the evidence and one of those positions represents the ALJ’s findings,

the court must affirm the ALJ’s decision.” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011).

B. Severity

Plaintiff argues that the ALJ erred at step two of the sequential evaluation when he failed

to find that her anxiety, depression, and PTSD were severe impairments. Defendant counters that

“substantial evidence supports the ALJ’s decision that Plaintiff did not meet her burden to prove

she had a severe mental impairment or combination of impairments.”

In determining the severity of a claimant’s mental impairments at step two of the

sequential evaluation, the ALJ must use the “special technique” described in 20 C.F.R. §

404.1520a. 5 The ALJ first “evaluate[s] [the claimant’s] pertinent symptoms, signs, and laboratory

findings to determine whether [the claimant has] a medically determinable mental impairment(s).”

20 C.F.R. § 404.1520a(b)(1). The ALJ “must then rate the degree of functional limitation resulting

from the impairment(s)” in four broad functional areas: (1) understand, remember, and apply

information; (2) interact with others; (3) concentrate, persist, maintain pace; and (4) adapt or

manage oneself. 20 C.F.R. § 404.1520a(c)(3). “If we rate the degrees of your limitation as ‘none’

or ‘mild,’ we will generally conclude that your impairment(s) is not severe, unless the evidence

otherwise indicates that there is more than a minimal limitation in your ability to do basic work

activities[.]” 20 C.F.R. § 404.1520a(d)(1).

The ALJ performed the above analysis in this case, and his analysis was supported by

substantial evidence. (Tr. 18-19) In regard to the functional area of understanding, remembering,

or applying information, the ALJ found Plaintiff had no limitations. (Tr. 18) The ALJ reasoned

5 The SSA recently amended the regulations at issue, effective January 17, 2017. 81 Fed. Reg.

66138-66167 (Sept. 26, 2016). The SSA specified that the SSA would use the revised rules on

and after their effective date, and that it expected federal courts to review decisions using

the regulations in effect at the time of the final administrative decisions. Id.; see also Beatty v.

Saul, No. 2:18-CV-22 ACL, 2019 WL 4243087, at *5 (E.D. Mo. Sept. 6, 2019). Because the ALJ

issued his decision on May 4, 2019, he applied the revised regulations.

that Plaintiff did not allege any memory deficit and Dr. Sparks routinely assessed her with recent

and remote memory. As to the functional area of interacting with others, the ALJ determined that

Plaintiff had only mild limitations because, although she reported that she was “often [] not able

to attend social activities or even leave her house,” she noted that “the restrictions on her social

activities was primarily due to her pain, not due to mental impairments.” (Tr. 19) The ALJ also

observed that, at the April 2017 pegboard assessment, the evaluator described Plaintiff as polite.

The ALJ found that Plaintiff had mild limitations in the third functional area of

concentrating, persisting, and maintaining pace. The ALJ explained that, while Plaintiff stated

that her ability to pay attention varies, “she noted that her limited attention span hinged upon her

pain level and was not caused by mental impairments.” (Tr. 19) The ALJ further noted that Dr.

Sparks routinely assessed Plaintiff with a normal attention span and ability to concentrate. Finally,

in regard to the fourth functional area of adapting or managing oneself, the ALJ found that Plaintiff

had mild limitations. The ALJ acknowledged Plaintiff’s claim that she had difficulty dealing with

stress, but he reasoned that she was able to “perform a variety of activities of daily living, including

cleaning, laundry, cooking, shopping, driving, and caring for her personal needs, albeit with some

assistance from her family when she is in pain” and Dr. Sparks regularly observed Plaintiff “to be

well groomed.” (Tr. 19)

The medical opinion evidence supported the ALJ’s assessment. In his psychiatric

evaluation, Dr. Harden screened Plaintiff’s cognitive functioning and found “her to be fully

oriented to person, place, and time.” (Tr. 479) Dr. Harden also noted that Plaintiff’s concentration

“was such that she was capable of quickly and correctly mentally reversing her own zip code” and

her immediate and remote recall were likewise intact. (Id.) Plaintiff considered herself “capable

of responsibly managing her own money, medications, health care and hygiene” and attributed

limitations in her ability to do household chores, shop, and drive to her “ongoing chronic physical

pain.” (Id.)

Additionally, the state agency psychological consultant reviewed Plaintiff’s medical

records and opined that Plaintiff’s “endorsed limitations are primarily due to physical

impairments.” (Tr. 107) He found that Plaintiff had: no limitations in activities of daily living;

mild limitations in social functioning; and mild difficulties in maintaining concentration,

persistence, or pace. (Id.)

Moreover, even assuming arguendo that the ALJ erred in finding Plaintiff’s mental

impairments non-severe at step two, that error does not require remand because it was harmless.

An ALJ’s error at step two in failing to find a particular impairment severe does not require reversal

where the ALJ finds other severe impairments and considers all of the claimant’s impairments,

severe and non-severe, in the subsequent analysis. See Cornick v. Berryhill, No. 4:17-CV-1265

SPM, 2018 WL 4383300, at *3-4 (E.D. Mo. Sept. 14, 2018); Spainhour v. Astrue, No. 11–1056–

SSA–CV–W–MJW, 2012 WL 5362232, at *3 (W.D. Mo. Oct. 30, 2012); Givans v. Astrue, No.

4:10–CV–417–CDP, 2012 WL 1060123, at *17 (E.D. Mo. Mar. 29, 2012). See also 20 C.F.R. §

404.1545(a)(2).

Plaintiff argues that, in finding that Plaintiff’s mental impairments were non-severe, the

ALJ failed to consider her mental impairments in combination with her chronic pain.6 However,

6 In support of her argument, Plaintiff cites Pratt v. Sullivan, 956 F.2d 830 (8th Cir. 1992). In

Pratt, the Eighth Circuit held that the ALJ committed reversible error when he failed to consider

the effects of the plaintiff’s mental impairment “in combination with the effects of [her] physical

impairments on [her] residual functional capacity. Id. at 835. Pratt is inapposite because, in that

case, the ALJ did not perform the analysis required by the regulations and concluded that the

plaintiff did not have a medically determinable mental impairment.

the ALJ discussed Plaintiff’s mental and physical symptoms, as well as the effect of Plaintiff’s

chronic pain on her mental health, throughout his decision.

In assessing Plaintiff’s RFC, the ALJ discussed Plaintiff’s testimony, medical records, and

the opinion evidence related to her mental impairments. The ALJ credited the state agency

psychological consultant’s finding of mild functional limitations and noted that Dr. Harden’s

mental status examination of Plaintiff was within normal limits. (Tr. 23) The ALJ also noted

that, although Plaintiff received prescriptions for anti-depressants and anti-anxiety medications

from her primary care physician, she received no specialized treatment for her mental health issues.

The fact that Plaintiff received only conservative treatment from her primary care physician and

did not seek care from a psychiatrist, despite Dr. Harden’s recommendation to do so, supported

the ALJ’s finding that her mental impairments were not severe. See, e.g., Thomas v. Berryhill,

698 Fed App’x 323, 323–34 (8th Cir. 2017) (per curiam) (depression was not a severe impairment

where the record contained scant evidence of mental health treatment, therapy progress notes

showed no symptoms that would interfere with basic work activities, and the claimant’s activities

of daily living suggested no more than minimal impact from depression); Kirby v. Astrue, 500

F.3d 705, 708–09 (8th Cir. 2007) (claimant’s mental impairment was not severe, in part, because

the claimant received no formal treatment by a psychiatrist, psychologist, or other mental health

professional over any long-term basis); Page v. Astrue, 484 F.3d 1040, 1044 (8th Cir. 2007)

(same).

Finally, Plaintiff contends that the ALJ failed to properly consider the effects of Plaintiff’s

mental impairments in determining that she was capable of performing her past relevant work as

a social welfare administrator. The Eighth Circuit has held that the ALJ must “fully investigate

and make explicit findings as to the physical and mental demands of a claimant’s past relevant

work and to compare that with what the claimant herself is capable of doing before he determines

that she is able to perform past relevant work.” Nishke v. Astrue, 878 F.Supp.2d 958, 988 (E.D.

Mo. 2012) (quoting Minick v. Sec. of Health & Human Serv., 887 F.2d 864, 866 (8th Cir. 1989)).

An ALJ may discharge this duty by referring to specific job descriptions in the Dictionary of

Occupational Titles and by relying on the testimony of a vocational expert. Wagner v. Astrue, 499

F.3d 842, 853 (8th Cir. 2007); Pfitzner v. Apfel, 169 F.3d 566, 569 (8th Cir. 1999).

Plaintiff testified that she previously worked as the executive director of a social welfare

organization, where she wrote grants, completed “task assessments for individuals with

disabilities,” regularly reviewed “consumers’ files,” attended meetings, and communicated with

other agencies. (Tr. 37) The ALJ also elicited testimony from a vocational expert and presented

a hypothetical question that fully described Plaintiff’s RFC. In response, the vocational expert

testified that such an individual would remain able to perform Plaintiff’s past work. The Court

therefore finds that the ALJ sufficiently considered the mental demands of Plaintiff’s past work.

Based on Plaintiff’s medical records, containing consistently normal mental status

examinations, and the medical opinion evidence, the Court finds that substantial evidence

supported the ALJ’s evaluation of Plaintiff’s mental functioning. The ALJ did not err in finding

that Plaintiff’s mental impairments were non-severe.

3. RFC

Plaintiff claims that substantial evidence did not support the ALJ’s determination that

Plaintiff had the RFC to perform sedentary work. [ECF No. 19] More specifically, Plaintiff argues

that the ALJ erred in finding that she was able to occasionally finger and handle with both hands.

The Commissioner counters that substantial evidence supported the ALJ’s RFC determination.

[ECF No. 24]

RFC is defined as what a claimant can do in a work setting despite his or her limitations

and includes an assessment of physical abilities and mental impairments. 20 C.F.R. § 404.1545(a).

The ALJ must determine a claimant RFC based on all relevant evidence, including medical

records, observations of treating physicians and the claimant’s own descriptions of her limitations.

Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Although the ALJ bears the primary

responsibility for assessing a claimant’s RFC based on all relevant evidence, “a claimant’s residual

functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). As

such, although the ALJ is not limited to considering medical evidence, “some medical evidence

‘must support the determination of the claimant’s residual functional capacity, and the ALJ should

obtain medical evidence that addresses the claimant’s ability to function in the workplace.’”

Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001). A Court will uphold an ALJ’s RFC

determination if it is supported by substantial evidence in the record. See Cox v. Barnhart, 471

F.3d 902, 907 (8th Cir. 2006).

Plaintiff’s medical records reveal that she reported decreased grip strength and sensation

and/or numbness in her hands to Dr. Sparks in May and December 2015, March and July 2016,

and July and October 2017. Nevertheless, in his physical examinations, Dr. Sparks consistently

recorded normal sensation, coordination, and deep tendon reflexes in her upper extremities. In the

MSS completed in July 2016, Dr. Sparks opined that Plaintiff could frequently perform fine

manipulation with both hands and occasionally perform gross manipulation with both hands.

Dr. Bondurant performed a neurological consultative examination for Plaintiff in February

2016 and observed that, despite initial giveaway weakness that cleared with encouragement,

Plaintiff had full strength in the upper extremities. She also had largely normal sensation, except

some attenuation of the third to fifth fingers on her left hand and some paresthesia with prolonged

flexion of the wrists. Although Dr. Bondurant suggested electrophysiologic studies of the upper

extremities, the record does not contain documentation of such testing.

In April 2017, Plaintiff underwent the Purdue Pegboard test. Plaintiff performed

significantly below average for certain occupational areas, and she was unable to complete the test

due to pain. Based on her observations and Plaintiff’s test results, Ms. Patterson, the consultative

examiner who administered the test, opined that Plaintiff would not be able to perform a job

requiring the use of her hands.

In determining Plaintiff’s RFC, the ALJ reviewed Plaintiff’s medical records and the

medical opinion evidence. Citing, among other evidence, Dr. Sparks’ unremarkable longitudinal

physical examinations and Plaintiff’s “limited and conservative treatment,” the ALJ determined

that she had the RFC to perform sedentary work occasional bilateral fingering, handling, and

overhead reaching. (Tr. 25)

Plaintiff argues the ALJ erred in failing to include in the RFC greater limitations on

fingering and handling. However, a claimant bears the burden of proving her limitations. Stormo

v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). Here, Plaintiff did not prove that her hands were

impaired to the extent that it precluded sedentary work. To the contrary, Plaintiff’s routine

physical examinations were unremarkable and the only medical opinion provided by a treating

source stated that she was capable of frequent fine manipulation and occasional gross

manipulation. “If substantial evidence supports the Commissioner's conclusions, this court does

not reverse even if it would reach a different conclusion, or merely because substantial evidence

also supports the contrary outcome.” Travis v. Astrue, 477 F.3d 1037, 1040 (8th Cir. 2007).

Furthermore, the ALJ accommodated Plaintiff’s hand impairment by limiting her to only

occasional handling, fingering, and overhead reaching. In fact, the ALJ adopted limitations more

restrictive than those identified by Dr. Sparks, who found that Plaintiff was capable of frequently

performing fine manipulation. The Court finds that the medical evidence does not support

limitations more extensive than those articulated in the RFC. “The mere fact that working may

cause pain or discomfort does not mandate a finding of disability[.]” Craig v. Apfel, 212 F.3d 433,

436 (8th Cir. 2000).

Plaintiff also argues that the ALJ failed to properly weigh Ms. Patterson’s opinion. In

determining a claimant’s RFC, the ALJ must consider the medical opinion evidence of record

together with the other relevant evidence. 20 C.F.R. § 404.1527(b). The ALJ must “give good

reasons” to explain the weight given to every medical opinion of record, regardless of its

source. See 20 C.F.R. §§ 404.1527(c), (e)(2)(ii), 416.927(c), (e)(2)(ii). All medical opinions,

whether by treating or consultative examiners, are weighed based on (1) whether the provider

examined the claimant; (2) whether the provider is a treating source; (3) length of treatment

relationship and frequency of examination, including nature and extent of the treatment

relationship; (4) supportability of opinion with medical signs, laboratory findings, and

explanations; (5) consistency with the record as a whole; (6) specialization; and (7) other factors

that tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c).

The ALJ assigned only “limited weight” to Ms. Patterson’s opinion because: (1) she

evaluated Plaintiff on a single occasion; (2) she specialized in education and counselling

psychology and was therefore “not qualified to render such clinical observations” about Plaintiff’s

physical functioning; and (3) her opinion was inconsistent with Dr. Bondurant’s clinical

observations. The Court finds the ALJ provided “good reasons” for the weight he accorded Ms.

Patterson’s opinion.

The record contained substantial evidence to support the ALJ’s RFC assessment, which

properly accounted for the impairments to her hands and arms. Although Plaintiff cites evidence

that might support a contrary decision, substantial evidence supported the ALJ’s RFC

determination and, as such, this Court is required to affirm.

VI. Conclusion

For the reasons discussed above, the Court finds that substantial evidence in the record as

a whole supports the Commissioner’s decision that Plaintiff is not disabled. Accordingly,

IT IS HEREBY ORDERED that the final decision of the Commissioner

denying Social Security benefits to Plaintiff is AFFIRMED.

A separate judgment in accordance with this Memorandum and Order is entered this date.

Maes. £ I,

PATRICIA L. COHEN

UNITED STATES MAGISTRATE JUDGE

Dated this 24th day of April, 2020

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