Ferrario v. Saul

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

DANIEL FERRARIO, )

)

Plaintiff, )

)

)

vs. ) Case No. 4:20-CV-00638-SEP

)

KILOLO KIJAKAZI,1 )

)

)

Defendant. )

MEMORANDUM AND ORDER

This is an action under 42 U.S.C. §§ 405(g) for judicial review of the final decision of

Defendant Kilolo Kijakazi, the Acting Commissioner of Social Security, denying the application

of Plaintiff Daniel Ferrario for Disability Insurance Benefits (DIB) under Title II of the Social

Security Act, 42 U.S.C. §§ 401 et seq., and for Supplemental Security Income (SSI) under Title

XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq. Because there is substantial evidence

to support the decision, the Court will affirm Defendant’s denial of Plaintiff’s application.

I. BACKGROUND

On October 3, 2017, Plaintiff applied for DIB and SSI, alleging that he had been unable

to work due to disability since July 31, 2017. (Tr. 162-72). He alleged disability based on

anxiety, depression, and bipolar disorder. (Tr. 172). His applications were initially denied on

December 1, 2017. (Tr. 93-98). Plaintiff subsequently filed a Request for Hearing by

Administrative Law Judge (ALJ), and a hearing was held on April 9, 2019. (Tr. 28-70).

Plaintiff, who was represented by counsel, represented at his hearing that he was unable

to work due to symptoms caused by anxiety, depression, and bipolar disorder. (Tr. 35). He

testified that he lived alone in his own apartment. (Tr. 37). He testified that he was able to drive,

but did not own a car, and he was able to get around by using the transportation provided by

Harmony House Clubhouse. (Tr. 39). He further testified that he had been terminated from his

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule

25(d) of the Federal Rules of Civil Procedure, she is substituted as Defendant in this case. No further

action is needed for this action to continue. See 42 U.S.C. § 405(g) (last sentence).

previous job as a facilities manager at a YMCA in Texas because he was so anxious and

forgetful that he had difficulty meeting deadlines, focusing on required tasks, and supervising

employees who reported to him. (Tr. 40). He testified that, at the time of the hearing, he was

working three five-hour shifts per week at a food pantry, where he helped fill boxes with food for

pickup by customers, and that he had an easier time concentrating and completing tasks because

the facility had displays that showed him what to put in each box. (Tr. 38-40, 45). He testified

that he sometimes has a hard time getting out of bed, but he forces himself to do so, and is able

to walk his dog, shower and get ready, prepare his own meals, run errands, and clean his

apartment. (Tr. 47, 49).

In his Adult Function Report, Plaintiff states that on a typical day he showers, attends

support groups, takes his medicine, and eats two meals per day. (Tr. 211). He states that he has

no problems with personal care and does not require any assistance from others with respect to

self-care, including taking his medications. Id. He further states that he is able to perform

household chores and yardwork. (Tr. 212). He states that he is able to go out alone, and while

he can drive, he generally either walks or takes public transportation when he needs to travel.

(Tr. 213). He also states that he can follow written and verbal instructions “fairly well, except

when [he] is symptomatic,” and that he has “no problems” getting along with authority figures.

(Tr. 215).

In an opinion issued on June 12, 2019, the ALJ found Plaintiff was not under a

“disability” as defined in the Act. (Tr. 14). Plaintiff filed a Request for Review of Hearing

Decision with the Social Security Administration’s (SSA) Appeals Council. (Tr. 157-59). On

April 24, 2020, the SSA’s Appeals Council denied his Request for Review. (Tr. 2-4). Plaintiff

has exhausted all administrative remedies, and the decision of the ALJ stands as the final

decision of the Commissioner of the Social Security Administration.

As to further evidence of record, the Court accepts the facts as provided by the parties

and will address specific facts related to the issues raised by the parties as needed in the

discussion below.

II. STANDARD FOR DETERMINING DISABILITY UNDER THE ACT

To be eligible for benefits under the Act, a claimant must prove he or she is disabled.

Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Sec’y of Health & Human

Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Act defines as disabled a person who is unable

“to engage in any substantial gainful activity by reason of any medically determinable physical

or mental impairment which can be expected to result in death or which has lasted or can be

expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). The impairment

must be “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, regardless of whether such work exists in the

immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he

would be hired if he applied for work.” 42 U.S.C. §§ 423(d)(2)(A), 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(a), 416.920(a);2 see also McCoy v. Astrue, 648

F.3d 605, 611 (8th Cir. 2011) (discussing the five-step process). At Step One, the Commissioner

determines whether the claimant is currently engaging in “substantial gainful activity”; if so, then

he is not disabled. 20 C.F.R. § 404.1520(a)(4)(i); McCoy, 648 F.3d at 611. At Step Two, the

Commissioner determines whether the claimant has a severe impairment, which is “any

impairment or combination of impairments which significantly limits [the claimant’s] physical or

mental ability to do basic work activities”; if the claimant does not have a severe impairment, he

is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c); McCoy, 648 F.3d at 611. At Step

Three, the Commissioner evaluates whether the claimant’s impairment meets or equals one of

the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “listings”). 20 C.F.R.

§ 404.1520(a)(4)(iii); McCoy, 648 F.3d at 611. If the claimant has such an impairment, the

Commissioner will find the claimant disabled; if not, the Commissioner proceeds with the rest of

the five-step process. 20 C.F.R. § 404.1520(d); McCoy, 648 F.3d at 611.

Prior to Step Four, the Commissioner must assess the claimant’s “residual functional

capacity” (RFC), which is “the most a claimant can do despite [his or her] limitations.” Moore v.

Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)); see also 20 C.F.R.

§ 404.1520(e). At Step Four, the Commissioner determines whether the claimant can return to

his past relevant work by comparing the claimant’s RFC with the physical and mental demands

of the claimant’s past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f); McCoy, 648

2 All references are to the version of the regulations that was in effect as of the date of the ALJ’s

decision.

F.3d at 611. If the claimant can perform his past relevant work, he is not disabled; if the

claimant cannot, the analysis proceeds to the next step. Id. At Step Five, the Commissioner

considers the claimant’s RFC, age, education, and work experience to determine whether the

claimant can make an adjustment to other work in the national economy; if he cannot make such

an adjustment, he will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v);

McCoy, 648 F.3d at 611.

Through Step Four, the burden remains with the claimant to prove that he is disabled.

Moore, 572 F.3d at 523. At Step Five, the burden shifts to the Commissioner to establish that,

given the claimant’s RFC, age, education, and work experience, there are a significant number of

other jobs in the national economy that the claimant can perform. Id.; Brock v. Astrue, 674 F.3d

1062, 1064 (8th Cir. 2012).

III. THE ALJ’S DECISION

Applying the foregoing five-step analysis, the ALJ here found that Plaintiff has not

engaged in substantial gainful activity since the alleged onset date, July 31, 2017; that Plaintiff

has the severe impairments of bipolar disorder, major depressive disorder, and generalized

anxiety disorder; and that Plaintiff does not have an impairment or combination of impairments

that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. § 404,

Subpart P, Appendix 1. (Tr. 13). The ALJ found that Plaintiff has the RFC to perform a full

range of work at all exertional levels, but with the following non-exertional limitations: he can

attend to and carry out routine and repetitive tasks, but not as a production rate pace (e.g.,

assembly line work); he can occasionally interact with the public and coworkers; may have only

superficial interaction with others; is not able to engage in tandem tasks, and is not able to

perform tasks involving arbitration, negotiation, conflict resolution, management of the work of

others, or responsibility for the safety and welfare of others; and is limited to positions with

infrequent changes in an otherwise static work environment. (Tr. 14).

The ALJ found that Plaintiff is unable to perform any of his past relevant work. (Tr. 19).

But considering Plaintiff’s age, education, and work experience, and in reliance on the testimony

of a vocational expert (VE), the ALJ found that Plaintiff would be able to perform occupations

including industrial cleaner (Dictionary of Occupational Titles (DOT) No. 381.687-018, medium

exertional level), dishwasher (DOT No. 318.687-010, medium exertional level); and

housekeeping cleaner (DOT No. 323.687-014, light exertional level). (Tr. 20). The ALJ

concluded, therefore, that Plaintiff was not disabled as defined by the Act from the alleged onset

date through June 12, 2019, the date of the decision. (Tr. 20).

IV. STANDARD FOR JUDICIAL REVIEW

This Court must affirm the Commissioner’s decision if it complies with the relevant legal

requirements and is supported by substantial evidence in the record as a whole. See 42 U.S.C.

§§ 405(g), 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 401 (1971); Pate-Fires v. Astrue,

564 F.3d 935, 942 (8th Cir. 2009); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002). “Under

the substantial-evidence standard, a court looks to an existing administrative record and asks

whether it contains ‘sufficien[t] evidence’ to support the agency’s factual determinations.”

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229 (1938)). “Substantial evidence is less than a preponderance, but is enough

that a reasonable mind would find it adequate to support the Commissioner’s conclusion.” Pate-

Fires, 564 F.3d at 942. See also Biestek, 139 S. Ct. at 1154 (“Substantial evidence . . . means—

and means only—‘such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.’”) (quoting Consolidated Edison, 305 U.S. at 229).

In determining whether substantial evidence supports the Commissioner’s decision, the

Court considers both evidence that supports that decision and evidence that detracts from that

decision. Renstrom v. Astrue, 680 F.3d 1057, 1063 (8th Cir. 2012). However, the 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

reasons and substantial evidence.’” Id. at 1064 (quoting Gonzales v. Barnhart, 465 F.3d 890,

894 (8th Cir. 2006)). A reviewing court should not disturb the ALJ’s decision unless it falls

outside the available “zone of choice” supported by the evidence of record. Buckner v. Astrue,

646 F.3d 549, 556 (8th Cir. 2010). 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. “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) (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)).

V. DISCUSSION

Plaintiff challenges the ALJ’s decision on two grounds: (1) the ALJ was unreasonable in

relying on the testimony of the vocational expert; and (2) the ALJ did not properly weigh the

opinion of Plaintiff’s treating psychiatrist, Dr. Bhaskar Gowda. In response, the Commissioner

maintains that the ALJ properly evaluated the medical opinions of record and based his decision

on substantial evidence in the record as a whole.

A. Whether the ALJ Erred at Step Five in Relying on VE’s Testimony

At Step Five, it is the Commissioner’s burden to “identify the types of jobs [a claimant]

could perform notwithstanding his disabilities” and to “ascertain whether those kinds of jobs

‘existed in significant numbers in the national economy.’ ” Biestek, 139 S. Ct. at 1152 (quoting

20 C.F.R. §§ 404.1560(c)(1), 416.960(c)(1); see also Pearsall, 274 F.3d at 1219. “For guidance

on such questions, ALJs often seek the views of ‘vocational experts.’” Biestek, 139 S. Ct. at

1152. Vocational experts “are professionals under contract with [the Social Security

Administration] to provide impartial testimony in agency proceedings.” Id. “They must have

‘expertise’ and ‘current knowledge’ of ‘[w]orking conditions and physical demands of various’

jobs; ‘[k]nowledge of the existence and numbers of [those jobs] in the national economy’; and

‘[i]nvolvement in or knowledge of placing adult workers[ ] with disabilities[ ] into jobs.’” Id.

(quoting SSA, Hearings, Appeals, and Litigation Law Manual I-2-5-50 (Aug. 29, 2014)). “Many

vocational experts simultaneously work in the private sector locating employment for persons

with disabilities.” Id. “When offering testimony, the experts may invoke not only publicly

available sources but also ‘information obtained directly from employers’ and data otherwise

developed from their own ‘experience in job placement or career counseling.’” Id. at 1152-53

(quoting Social Security Ruling (SSR) 00-4p, 2000 WL 1898704, at *2).

It is well established in the Eighth Circuit that “[t]he Commissioner may rely on a

vocational expert’s response to a properly formulated hypothetical question to show that jobs

that a person with the claimant’s RFC can perform exist in significant numbers.” Williams v.

Saul, 2020 WL 5569992, at *5 (E.D. Mo. Sept. 17, 2020) (quoting Guilliams v. Barnhart, 393

F.3d 798, 804 (8th Cir. 2005)). However, there are some limitations on the ALJ’s ability to rely

on VE testimony. For example, “when a hypothetical question does not encompass all relevant

impairments, the vocational expert’s testimony does not constitute substantial evidence.”

Buckner v. Astrue, 646 F.3d at 561 (internal quotation marks omitted); see also Collins v. Astrue,

648 F.3d 869, 872 (8th Cir. 2011) (“Testimony from a vocational expert is substantial evidence

only when the testimony is based on a correctly phrased hypothetical question that captures the

concrete consequences of a claimant’s deficiencies.”) (quoting Cox v. Astrue, 495 F.3d 614, 620

(8th Cir. 2007)). There is no dispute in the instant case that the questions posed to the VE were

based on correctly phrased hypothetical limitations. Rather, Plaintiff argues that the ALJ erred at

Step Five by relying on the VE’s testimony because it was of dubious reliability.

Plaintiff cites certain factors that he maintains undercut the reliability of the VE’s

testimony. First, Plaintiff argues that it was improper to rely on the testimony of the VE because

the record contains no curriculum vitae documenting the VE’s qualifications and experience.

Second, Plaintiff argues that one source of the VE’s job availability data, Employment Statistics

Quarterly published by United Stat Publishing Company (U.S. Publishing) was unreliable,

because it includes data about both full-time and part-time work in its census data. For the

reasons discussed below, these arguments do not warrant reversal.

Plaintiff cites to no authority for the proposition that a VE’s qualifications, as established

by a curriculum vitae, must be included in the record. The Social Security Administration's

Hearings, Appeals, and Litigation Law Manual (HALLEX) does state that an ALJ will “admit

into the record a written statement or resume of the [vocational expert’s] qualifications.” See

Soc. Sec. Admin., HALLEX 1-2-1-31, https://www.ssa.gov/OP_Home/hallex/I-02/I-2-1-31.html.

However, the Eighth Circuit has clearly established that the HALLEX “has no legal force” and

“does not bind the SSA.” Dols v. Saul, 931 F.3d 741, 749 n.4 (8th Cir. 2019) (quoting Schweiker

v. Hansen, 450 U.S. 785, 789 (1981) (per curiam)).

In any event, Plaintiff did not cite to the HALLEX, and points the Court to no other

authority that may support his argument. The Court’s own research has not revealed any Eighth

Circuit cases addressing the issue, and other courts considering this question have held that the

absence from the record of a VE’s curriculum vitae or other written statement of qualifications

does not warrant reversal of the ALJ’s decision. See Carter v. Commissioner of Social Security,

2014 WL 4987419, at *9, (S.D. Ohio Oct. 6, 2014) (Where the “plaintiff had the opportunity at

the administrative hearing to inquire into the vocational expert’s qualifications but failed to do so

. . . plaintiff will not now be heard to challenge the Commissioner’s decision on this basis.”);

Haskins v. Commissioner of Social Security, 2008 WL 5113781, at *16, (N.D. NY Sept. 11,

2008) (declining to reverse the ALJ’s decision even though “the VE’s qualifications are absent

from the record” where the record “nonetheless reveals that plaintiff’s counsel was given the

opportunity to question the VE following her answers to the ALJ’s questions but declined to do

so,” and “failed to object to her qualifications” during or after the hearing).

Plaintiff’s counsel had access to the record both before and after the hearing. As in

Carter and Haskins, Plaintiff here raised no objection to the record with respect to this issue at

the administrative hearing, nor in his post-hearing objections filed with the Appeals Council.

(Tr. 28-70, 250-256). Furthermore, Plaintiff’s counsel thoroughly cross-examined the VE

regarding other concerns but did not make a single inquiry into his qualifications. Indeed, at the

hearing the ALJ explicitly asked Plaintiff’s counsel whether he had “any questions regarding [the

VE’s] professional qualifications,” and Plaintiff’s counsel replied, “No, Your Honor.” (Tr. 56-

57). Additionally, Plaintiff’s counsel could have, but did not, object to the VE testifying as an

expert at the hearing. See Haskins, 2008 WL 5113781, at *16, (“Plaintiff’s failure to raise this

issue before the ALJ effectively waived any challenge to the VE’s qualifications.”).

Moreover, even though the VE’s curriculum vitae was missing from the record, the VE in

this case, Dr. Darryl Taylor, has extensive experience serving as a VE in SSA proceedings in this

jurisdiction, having performed that role for over a decade. It is reasonable to presume that both

the ALJ and Plaintiff’s counsel were familiar with him and aware of his qualifications. See

Hanauer v. Astrue, 2010 WL 1687809 (E.D. Mo. Apr. 7, 2010) (Vocational Expert Dr. Darryl

Taylor testified at the hearing); Harris v. Astrue, 2012 WL 4470388 (E.D. Mo. Sept. 27, 2012)

(same); Brown v. Colvin, 2015 WL 4168203 (E.D. Mo. July 9, 2015) (same); Horton v.

Berryhill, 2019 WL 1317458 (E.D. Mo. April 7, 2010) (same). Even though it is preferable that

a VE’s qualifications be entered into the record, under the circumstances of this case, the

omission was harmless error, as it does not undermine the ALJ’s Step Five findings. See Van

Vickle v. Astrue, 539 F.3d 825, 830 (8th Cir. 2008) (holding an error harmless where “[t]here is

no indication that the ALJ would have decided differently” had the error not occurred) (citing

Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007)).

Second, Plaintiff argues that the VE’s testimony did not constitute substantial evidence

because one of the sources on which he relied—U.S. Publishing—contained data about both

part-time and full-time jobs. Plaintiff also asserts that the source was unreliable because it had

been administratively dissolved by the State of Missouri for failure to file a registration report.

As noted above, at Step Five the burden of proof lies with the Acting Commissioner to

show that appropriate work exists in significant numbers either in the region where the claimant

lives or in several regions of the country. See 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2);

Moore, 572 F.3d at 523. The Social Security Act states that an individual is disabled:

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, regardless of whether such work exists

in the immediate area in which he lives, or whether a specific job vacancy exists

for him, or whether he would be hired if he applied for work. For purposes of the

preceding sentence (with respect to any individual), ‘work which exists in the

national economy’ means work which exists in significant numbers either in the

region where such individual lives or in several regions of the country.

42 U.S.C. § 423(d)(2)(A); accord 42 U.S.C. § 1382c(a)(3)(B).

The regulations further provide that the Acting Commissioner will take administrative

notice of job data obtained from certain specified publications, including the DOT. 20 C.F.R.

§ 404.1566(d). However, the ALJ is not restricted to considering only jobs data derived from

these specified sources. Rather, the VE, when offering testimony, may invoke not only other

“publicly available sources but also ‘information obtained directly from employers’ and data

otherwise developed from their own “experience in job placement or career counseling.’”

Biestek, 139 S. Ct. at 1152-53 (quoting SSR 00-4p, 2000 WL 1898704, at *2).

Here, the VE relied on data from one such publicly available source, U.S. Publishing,

which includes part-time work in its census data regarding the types and numbers of jobs

available in the national economy. See https://www.uspublishing.net/references.html (last

visited August 15, 2021). Plaintiff contends that the ALJ could consider only full-time jobs

when determining whether there were a significant number of jobs in the economy that Plaintiff

could perform, and thus the ALJ erred in relying on the VE’s testimony, because it was based on

data that included part-time positions. In support of his argument, Plaintiff points to Social

Security Ruling 96-8p, which provides that “[o]rdinarily, RFC is an assessment of an

individual’s ability to do sustained work-related physical and mental activities in a work setting

on a regular and continuing basis. A ‘regular and continuing basis’ means 8 hours a day, for 5

days a week, or an equivalent work schedule.”

SSR 96-8p does not apply to the VE’s testimony, however, but rather to the ALJ’s

functional capacity determination. Therefore, on its face it cannot be interpreted to mean that a

VE may permissibly testify only as to availability of full-time jobs. In Welsh v. Colvin, 765 F.3d

926, 930 (8th Cir. 2014), the Eighth Circuit considered a case where the social security claimant

argued that the ALJ erred in relying on the VE’s testimony because the VE admitted that some of

the available jobs he testified were available were “part-time rather than full-time positions,

whereas the RFC determination is based on a person’s ability to work on a regular and

continuing basis, meaning eight hours a day, five days a week.” The Eighth Circuit rejected the

claimant’s argument, holding that the VE was not “required to articulate the percentage of

available jobs that were part-time or full-time.” Id. Other circuits that have considered this issue

have reached a similar conclusion. See Liskowitz v. Astrue, 559 F.3d 736, 745 (7th Cir. 2009)

(“there is no per se rule that part-time work cannot constitute substantial activity”) (quoting

Kelley v. Apfel, 185 F3d 1211, 1214-15 (11th Cir. 1999)). As the court in Liskowitz explained,

“to say that the ALJ may deny benefits only if she finds the claimant capable of some form of

full-time work is quite different from saying that only full-time jobs can constitute significant

work in the national economy.” Id.

As for whether U.S. Publishing is generally a reliable source for job data, Plaintiff cites

no authority for the claim that its registration status with the State of Missouri undermines its

reliability. And other courts have found that U.S. Publishing is “a proper source for job number

testimony.” Gay v. Sullivan, 986 F.2d 1336, 1340 (10th Cir. 1993); Offield v. Colvin, 2016 WL

223716, at *13 (W.D. Mo. Jan. 19, 2016) (“Employment Statistics Quarterly published by

United Stat Publishing Company ‘does indeed seem to be a source on which VEs customarily

rely.’ ”) (quoting Liskowitz, 559 F.3d at 743-44).

Accordingly, the Court finds that the VE’s testimony about the number of jobs a person

with Plaintiff’s RFC could perform constituted substantial evidence on which the ALJ

reasonably relied. The Acting Commissioner met her burden at Step Five of showing that there

are jobs that exist in significant numbers in the national economy that Plaintiff could perform.

B. Weighing the Opinion of Plaintiff’s Psychiatrist

Plaintiff’s treating psychiatrist, Dr. Gowda, appears to have seen Plaintiff twice between

January 7, 2019, and April 18, 2019. (Tr. 1354-1373). Approximately one week after Plaintiff’s

administrative hearing before the ALJ, Dr. Gowda provided the ALJ with his opinion regarding

Plaintiff’s mental residual functioning capacity. (Tr. 1364-67). Dr. Gowda diagnosed Plaintiff

with depression and anxiety, and, in a “check-the-box” list of symptoms, noted that Plaintiff’s

signs and symptoms included appetite disturbance, loss of interest in activities, sleep disturbance,

psychomotor agitation/retardation, decreased energy, feelings of guilt or worthlessness, difficulty

concentrating, thoughts of suicide, persistent anxiety, motor tension, persistent irrational fear,

and recurrent severe panic attacks. (Tr. 1364). In the section of the form asking Dr. Gowda to

check a box indicating how Plaintiff’s psychiatric state would impair his ability to work, Dr.

Gowda opined that Plaintiff was “extremely” impaired in almost all areas,3 including the ability

to understand and carry out detailed instructions; to maintain attention; to keep a schedule; to

work without special supervision; to work in proximity with or get along with others; to make

simple decisions; to keep a consistent pace without unreasonable rest periods; to interact

appropriately with the public; to accept instructions or criticism; to exhibit socially appropriate

behavior; to adhere to basic standards of neatness and cleanliness; to travel or use public

transportation; or to set realistic goals and make plans. (Tr. 1365-66). Dr. Gowda also opined

that Plaintiff showed “extreme” limitations in all activities of daily living and maintaining social

functioning. (Tr. 1364). In the space provided for Dr. Gowda to include more detailed

comments, he wrote, “Pt. has mood swings and anxiety. He is still not functioning well due to

his symptoms. He is not able to function/capable of handling any kind of job at this juncture.”

(Tr. 1367).

Because Plaintiff filed his application after March 27, 2017, the new Social Security

regulations regarding the evaluation of medical evidence apply to his case. See 20 C.F.R.

§§ 404.1520c, 416.920c. Under the new regulations, ALJs are no longer required to “give any

specific evidentiary weight, including controlling weight, to any medical opinion(s),” including

those from treating physicians. Id. §§ 404.1520c(a), 416.920c(a). The new regulation not only

eliminated the treating physician rule, but also relaxed the requirement that ALJs provide “good

reasons” for the weight given to medical opinions. Compare 20 C.F.R. § 404.1527 (old rule) to

20 C.F.R. § 404.1520c (new rule). Under the new rule, ALJs must determine the persuasiveness

of each medical source or prior administrative medical finding based on supportability,

consistency, relationship with the claimant, specialization, and any other factors that “tend to

support or contradict a medical opinion.” 20 C.F.R. § 404.1520(a), (c). See also 20 C.F.R.

3 “Extreme” impairment was the most severe level of impairment from which Dr. Gowda could choose

on the form provided. The only area in which Dr. Gowda did not find Plaintiff to be “extremely”

impaired was in the ability to understand and remember short, simple instructions. (Tr. 1365-66).

§§ 404.1520c(b)(2), 416.920c(b)(2) (“The factors of supportability . . . and consistency . . . are

the most important factors we consider when we determine how persuasive we find a medical

source’s medical opinions or prior administrative findings to be . . . . We may, but are not

required to, explain how we considered the [other listed factors].”).

Because the new regulations clearly eliminated the treating physician rule, the ALJ was

not obligated to give any special weight to Dr. Gowda’s report. In evaluating Dr. Gowda’s opinion,

the ALJ found the opinion unpersuasive because it was unsupported by and inconsistent with the

evidence of record, stating:

The undersigned . . . finds the mental medical source statement of Dr. Gowda,

who determined [Plaintiff] has multiple extreme mental limitations,

unpersuasive. The April 18, 2019, medical source statement is . . . the product

of a pre-printed “check the block” form questionnaire. The opinion is

unpersuasive because it does not articulate an objective medical basis for the

extreme limitations indicated and is inconsistent with the physician’s own

unremarkable mental status examination findings, which was performed the

same day Dr. Gowda completed the mental medical source statement. These

findings were essentially normal except for loud speech and use of offensive

language. Further, the opinion is unsupported by the unremarkable mental status

examination findings of the other mental health source providers.

(Tr. 22) (internal citations removed). After careful review of the record, and for the reasons

discussed below, the Court finds that the ALJ reasonably articulated why he found Dr. Gowda’s

opinion unpersuasive, and his finding falls within the available “zone of choice.” Buckner v.

Astrue, 646 F.3d at 556 (In weighing a treating source opinion, it is the ALJ’s role to resolve

conflicts in the evidence, and the ALJ’s finding should not be disturbed so long as it falls within

the “available zone of choice.”).

Plaintiff first contends that the ALJ was inaccurate in finding that Dr. Gowda’s opinion

that Plaintiff is “extremely” or “markedly” limited in all areas of functionality was unpersuasive

due to its lack of a sufficient “objective medical basis” for such extreme limitations. Doc. [22] at

12. Plaintiff points to the comments section of Dr. Gowda’s opinion, in which he attributed

Plaintiff’s extreme limitations to his “mood swings and anxiety.” Id. But such a generalized and

vague description of Plaintiff’s condition does not provide adequate support for fashioning a

different RFC, and certainly does not negate the frequently unremarkable mental status

examination findings of both Dr. Gowda and other mental health care providers.

For example, Dr. Gowda’s treatment notes contain few objective findings or observations

that would support the opinions offered. While Dr. Gowda did note that Plaintiff complained of

mood swings and exhibited loud speech and offensive language during the April 18, 2019, office

visit, at that same visit Dr. Gowda also noted that Plaintiff’s “mood swings are better after

starting him on Latuda.” (Tr. 1369). Dr. Gowda went on to note that Plaintiff recently got a

support dog and feels that the dog “helps him and calms him.” (Tr. 1369). Dr. Gowda also

noted that Plaintiff was cooperative, alert and well oriented, with good recent and remote

memory. (Tr. 1371). Plaintiff was also noted to be well groomed and neatly shaven with overall

good personal hygiene, normal psychomotor activity, and he exhibited a euthymic mood with

appropriate affect. Id. Dr. Gowda further noted that Plaintiff denied any suicidal ideations or

plans. (Tr. 1370).

At Plaintiff’s only other examination by Dr. Gowda, approximately four months prior to

the date of the opinion, Dr. Gowda noted that Plaintiff was taking his medications, reported no

side effects, and felt that his medications were “working well.” (Tr. 1355). Dr. Gowda noted

that Plaintiff was “cooperative” with “good eye contact,” “euthymic mood,” and “appropriate

affect.” Plaintiff was noted to be alert, with “goal directed” thoughts, and no suicidal ideations

or paranoia, and exhibited good memory. (Tr. 1357).

Furthermore, Dr. Gowda’s opinion that Plaintiff “is not able to function/capable of

handling any kind of job at this juncture” is not a medical finding for the ALJ’s consideration;

rather, it is a conclusion that should have been reserved to the ALJ. (Tr. 1367). See 20 C.F.R.

§§ 404.1520b(c)(3)(i), 416.920b(c)(3)(i) (issues reserved to the Commissioner include

“statements that you are or are not disabled, blind, able to work, or able to perform regular or

continuing work”).

Moreover, Dr. Gowda’s opinion itself was sparse, lacking in detail, and consisted of fill-

in-the-blank answers, and one brief and conclusory written statement. RFC opinions that

“consist of nothing more than vague, conclusory statements—checked boxes, circled answers,

and brief fill-in-the-blank responses, . . . cite[ ] no medical evidence and provide little to no

elaboration . . . possess ‘little evidentiary value.’” Thomas v. Berryhill, 881 F.3d 672, 675 (8th

Cir. 2018) (quoting Toland v. Colvin, 761 F.3d 931, 937 (8th Cir. 2014)).

Additionally, the ALJ did not err in finding that Dr. Gowda’s opinion was unpersuasive

because it was inconsistent with and unsupported by the record as a whole. The ALJ noted that

Plaintiff’s mental status examinations were generally unremarkable; he was able to live and

function independently; he demonstrated the ability to work five hours per day, three days per

week; and his symptoms seemed reasonably well-controlled by medication. (Tr. 16-18). The

ALJ reasonably considered that the objective medical evidence provided by other health care

providers did not support the extremely restrictive limitations indicated by Dr. Gowda. (Tr. 17-

23). It was proper for the ALJ to consider the often normal and unremarkable mental findings in

the record, including his generally moderate symptoms, normal mood, and rational thought

processes, as well as the improvement of his symptoms with medication. See Steed v. Astrue,

524 F.3d 872, 876 (8th Cir. 2008) (mild or normal objective findings undermine allegations of

disability); Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000) (impairments that

are controllable or amenable to treatment do not support a finding of total disability). It was also

proper for the ALJ to find Plaintiff’s activities of daily living to be inconsistent with the extreme

limitations in Dr. Gowda’s opinion. Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005)

(internal citation omitted) (“Working generally demonstrates an ability to perform a substantial

gainful activity.”); see also Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir.1999) (finding activities

such as driving, shopping, visiting his mother, watching television, and playing cards were

inconsistent with plaintiff's allegations of total disability).

For example, near the beginning of the onset period, Plaintiff had two brief episodes of

inpatient care for his mental health conditions during the relevant period. In September 2017,

Plaintiff had recently lost his job in Texas and returned to St. Louis, where he was originally

from, and he was unhoused upon his arrival in Missouri. On September 14, 2017, Plaintiff

presented to Mercy Hospital, where he complained of suicidal thoughts, and he was admitted to

the hospital through September 18, 2017. During his hospitalization, while Plaintiff was noted to

be depressed and anxious, he was also generally observed to be alert, well-oriented, and

cooperative, with normal speech and coherent thought processes and no impulsivity,

hallucinations, or mania. (Tr. 346-49, 351-52, 354, 356, 359, 364, 369, 371, 376-79, 383). One

of Plaintiff’s doctors initially observed that Plaintiff “is homeless and appears to be malingering

for secondary gain of meds, housing, food.” (Tr. 347). The doctor later noted that Plaintiff had

been sleeping well, was “fairly comfortable and has no signs of distress,” yet was “actively

voice[ing] his suicidal thoughts,” in an apparent effort to “seek hospital stay.” (Tr. 379). The

record indicates that Plaintiff “demonstrate[d] effective coping mechanisms and psychosocial

functioning throughout [his] hospitalization.” (Tr. 356). On the date of Plaintiff’s discharge, the

record noted that it was “becoming apparent that the [patient] may be malingering the severity of

his depression in order to gain more days of hospital stay because of his homelessness . . . I do

not see much of objective signs for depression.” (Tr. 383). Upon discharge on September 18,

2017, his mental status examination was generally unremarkable, indicating that he was calm,

cooperative, with a stable mood, and his prognosis was noted to be “good.” (Tr. 359).

On September 22, 2017, Plaintiff presented to St. Anthony’s Hospital, again complaining

of suicidal ideation. (Tr. 439). Upon admission to the hospital, his examination indicated that he

was alert, well-oriented, with normal sensory function and no focal deficit, with a flat affect and

depressed mood. (Tr. 441). His initial differential diagnosis was depression, anxiety, and

suicidal ideation, with substance abuse and malingering. Id. Throughout his stay at St.

Anthony’s, Plaintiff was noted to be calm, pleasant, cooperative, and well-oriented. (Tr. 435-

451). At discharge on October 4, 2017, he was noted to have only “moderate” symptoms and

was alert and well oriented with good judgment and insight, and was stable with no more

suicidal ideation, normal mood and intellect, and appropriate affect. (Tr. 436-39). The

discharging doctor noted that Plaintiff was a patient who seems to go “from hospital to hospital,

[and] never settles down, [n]ever compl[ies] with treatment.” (Tr. 435).

Treatment records from Plaintiff’s counselors and doctors after his hospitalizations are

largely unremarkable. For example, while treatment notes indicate that Plaintiff continued to

experience depression and anxiety, his records frequently note that he was well-oriented with

normal and appropriate concentration, memory and language, as well as logical and goal-directed

flow of thought, and that he was well-groomed with a calm demeanor and no delusions or

hallucinations. (Tr. 489, 493, 535, 539, 541, 543). They also note that his medications and

therapies seem to be helping. (Tr. 493, 494, 539, 541, 542). Additionally, when his symptoms

of anxiety or depression worsened, it often seemed to be situational, in response to stressful

external factors such as his poor relationship with his daughter, having to surrender his vehicle

for non-payment, and living in homeless shelters. (Tr. 490, 493, 537)

The Court concludes that the ALJ did not err when he concluded that Dr. Gowda’s

opinion was not supported by or consistent with the evidence as a whole, and thus unpersuasive.

In pointing out that the treatment records from Dr. Gowda and other treatment providers did not

support the limitations he included in his opinion, the ALJ appropriately focused his analysis on

considerations of supportability and consistency, which are the central factors under the new

regulations. See 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2) (“The factors of supportability

... and consistency ... are the most important factors we consider when we determine how

persuasive we find a medical source's medical opinions or prior administrative findings to be”).

The Court finds the ALJ’s consideration of Dr. Gowda’s opinion evidence to be consistent with

and supported by the evidence of record.

The Court acknowledges that the record contains conflicting evidence, and the ALJ could

have reached a different conclusion with regard to Dr. Gowda’s opinion. But “it is the ALJ’s

function to resolve conflicts among the opinions of various treating and examining physicians.”

Renstrom, 680 F.3d at 1065 (quoting Pearsall, 274 F.3d at 1219). This Court’s task is not to

reweigh the evidence presented to the ALJ. The ALJ’s weighing of the evidence here fell within

the available “zone of choice,” and the Court cannot disturb that decision merely because it

might have reached a different conclusion. See Buckner, 646 F.3d at 556.

VI. CONCLUSION

Having reviewed the entire record, the Court finds that the ALJ reasonably relied on the

VE’s testimony about the number of jobs a person with Plaintiff's RFC could perform. The

Court also finds that the ALJ’s consideration of Dr. Gowda’s opinion to be consistent with and

supported by the evidence of record. Consequently, for all of the foregoing reasons, the Court

determines that the ALJ’s decision is supported by substantial evidence.

Accordingly,

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the

Acting Commissioner of Social Security is AFFIRMED.

Dated this 27" day of September, 2021.

Sok € Ml

SARAH E. PITLYK

UNITED STATES DISTRICT JUDGE

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