Perez v. Saul

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CORNELIEO PEREZ, )

)

Plaintiff, )

)

v. ) No. 4: 21 CV 557 DDN

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM

This action is before the Court for judicial review of the final decision of the

defendant Commissioner of Social Security denying the application of plaintiff Cornelieo

Perez for disability insurance benefits (DIB) under Title II of the Social Security Act (Act).

The parties have consented to the exercise of plenary authority by a United States

Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the final

decision of the Commissioner is affirmed.

I BACKGROUND

Plaintiff was born in 1970 and protectively filed his application for DIB on

September 3, 2015. (Tr. 140-41.) He alleged disability due to depression, hyperventilation

syndrome, sleep deprivation syndrome, and severe anxiety. (Tr. 179.) His claims were

denied, and he requested a hearing before an administrative law judge (ALJ). (Tr. 84-85.)

On January 12, 2017, following a hearing, the ALJ concluded that plaintiff was not

disabled under the Act. (Tr. 1, 19-27.) The Appeals Council denied review. Accordingly,

the ALJ’s decision became the final decision of the Commissioner subject to judicial

review by this Court under 42 U.S.C. § 405(g). (Tr. 1-6.)

II. ADMINISTRATIVE RECORD

The following is a summary of plaintiff’s medical and other history relevant to his

appeal.

On February 24, 2014, plaintiff underwent a psychology intake with VA staff

psychologist Shawn O’Connor, Ph.D. to reengage services. His current complaints were

sleep problems, anger, and anxiety. He reported numerous ongoing struggles with PTSD

related symptoms that he had become less effective at managing over the past year. He

experienced frequent intrusive thoughts; his mind would wander to stressful events from

deployment, which triggered anxiety, anger, and muscle tension at his job. He reported

thinking “anything can happen” and that he felt overwhelmed. He reported that he

preferred to be up and moving rather than being a “sitting duck” at work. He had

nightmares, for example, being trapped underwater in a car. His mood and temper

negatively affected his relationships. He had a short temper and felt anxious. He became

tearful easily, avoided social situations, and felt comfortable only at home in his “fortress.”

He had persistent irritability and snapped at others. He avoided having friends/family over

and stayed in contact only with fellow service members. He would wake to any noise and

had difficulty falling back to sleep. He was scheduled for a psychiatric evaluation. (Tr.

385-88, 554-56.)

On March 10, 2014, plaintiff underwent a psychiatric evaluation with Klara I.

Curtis, M.D. at the VA. Plaintiff complained of increased difficulty with anxiety and lack

of patience. He had experienced persistently heightened anxiety since returning from his

first tour in 2003. He rated his anxiety 8/10 most of the time, with crowds and noises

leading to further peaks. He felt overwhelmed and restless when anxious. He rated his

mood 3-4/10 and reported it had been chronically low for several years. He had decreased

interest in activities, social withdrawal, and interacted only with his spouse and two

military friends. He had missed work several times over the past several months which

was not typical. He had pervasive irritability and felt annoyed and angry 50% of the time.

He had a variable appetite, disrupted sleep with initial insomnia, and multiple awakenings

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triggered by nightmares, as well as noises and need to use the bathroom. He was

chronically fatigued during the day. He had nightmares about combat 2-3 times per week

and periodic intrusive recollections. He had marked hypervigilance, often questioned the

purpose of his life, and described a sense of worthlessness. On exam he was anxious,

tearful, and had a constricted affect, low mood, and fair insight. His GAF score was 55,

indicating moderate symptoms. His diagnoses included Depressive Disorder, not

otherwise specified, and PTSD with dysphoria, irritability, anxiety symptoms,

hypervigilance, sleep disruption, and hopelessness. He was referred to a stress

management class and prescribed Zoloft, an antidepressant. (Tr. 376-79.)

On April 21, 2014, psychiatric records from the VA indicate plaintiff had an

excellent mood since starting Zoloft, with ongoing irritability although he could “talk

himself down” now. He was working on how to manage or de-escalate anger. His anxiety

level was variable but 7/10 most of the time with chronic hypervigilance. Prazosin, used

to prevent increased anxiety, did not provide any clear improvement in his nightmares. On

exam he had a mildly anxious and constricted affect or perceived emotion and fair insight.

His GAF score was 55. His Zoloft dosage was increased. (Tr. 369-73.)

On June 9, 2014, Plaintiff saw psychiatrist Jay L. Liss, M.D. Dr. Liss completed a

VA form titled “Review Post Traumatic Stress Disorder (PTSD) Disability Benefits

Questionnaire.” Dr. Liss reported diagnoses of PTSD due to combat in Iraq and

Afghanistan. He reported additional diagnoses of anxiety with flashbacks and depression

associated with PTSD. Plaintiff’s Axis IV problems, psychosocial and environmental,

included divorce, isolation, and aggressiveness. His GAF score was 35, indicating serious

impairment. (Tr. 234-35.)

Dr. Liss reviewed plaintiff’s VA records and history. Dr. Liss identified PTSD

diagnostic criteria as follows. Veteran (Vet) was exposed to a traumatic event where he

experiences or witnessed or was confronted with an event that involved actual or threatened

death or serious injury, or threat to the physical integrity of self or others, and that the

traumatic event is re-experienced in the following ways: recurrent and distressing dreams

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and recollections of the event, including images, thoughts or perceptions, acting or feeling

as if the event were reoccurring, including the sense of reliving the experience, delusions,

hallucinations and dissociative flashback episodes, including those that occur on

awakening or when intoxicated and intense psychological distress at exposure to internal

or external cues that are symbolic or resemble an aspect of the traumatic event. (Tr. 237.)

Dr. Liss identified criterion C, persistent avoidance of stimuli associated with the

trauma and numbing of general responsiveness, as indicated by the following: efforts to

avoid thoughts, feelings or conversations associated with the trauma, efforts to avoid

activities, places or people that arouse recollections of the trauma, inability to recall an

important aspect of the trauma, markedly diminished interest or participation in significant

activities, feeling of detachment or estrangement from others, restricted range of affection

and sense of a shortened future. (Tr. 237.)

Dr. Liss identified Criterion D, persistent symptoms of increased arousal, not

present before the trauma were identified as: difficulty falling/staying asleep, irritability or

anger outbursts, difficulty concentrating, hypervigilance, and exaggerated startle response.

Dr. Liss noted plaintiff’s symptoms caused clinically significant distress or impairment in

social, occupational, or other important areas of functioning. Dr. Liss identified plaintiff’s

current symptoms to include: depressed mood, anxiety, suspiciousness, panic attacks and

flashbacks more than once a week, chronic sleep impairment, mild memory loss,

impairment in short and long term memory, memory loss for names of close relatives, own

occupation or own name, flattened affect, disturbances of motivation and mood, difficulty

establishing and maintaining effective work and social relationships, difficulty adapting to

stressful circumstances, including work or work like setting, inability to establish and

maintain effective relationships, suicidal ideation and persistent delusions, hallucinations

or flashbacks. (Tr. 237.)

On July 28, 2014, plaintiff was seen for psychiatry follow-up at the VA. He reported

improvement after increasing Zoloft until recent stressors at work led to an overall

worsening once again. His mood was down the last few weeks due to stress. He was

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preoccupied with a recent work situation regarding his hours, and he is being forced to

leave his job. His appetite was decreased. His sleep was disrupted and had worsened

recently with frequent waking and combat-related nightmares 1-2 times per week. A

mental status exam revealed down mood, upset, angry and constricted affect, and fair

insight. His GAF score was 55. (Tr. 363-68.)

On August 28, 2014, plaintiff was seen at the VA for a psychiatric appointment. He

complained of ongoing stress related to his job situation and described his mood by stating

“I’ve seen better days.” He had increased irritability with frequent escalation to shouting

and increased conflict and argument with his wife over finances. He had decreased interest

in activities and appetite, disrupted sleep, and difficulty getting out of bed in the mornings.

He had decreased eye contact and a dysphoric (sad), irritable, and constricted affect. His

speech increased in amount as he became focused on his job situation. His thought process

was preoccupied with his job situation and insight was fair. His GAF score was 55. He

was diagnosed with depressive disorder, not otherwise specified, with worsening mood,

increased irritability, and decreased interest, appetite, and sleep. His Zoloft was increased,

and Prazosin continued. (Tr. 356-61.)

On September 12, 2014, plaintiff was seen in the ER at Mercy Hospital after

becoming short of breath while driving to a job interview. He reported having tingling in

his hands that moved into his face, neck and legs associated with lightheadedness with

feelings of impending doom. He pulled off the road and called EMS. He was diagnosed

with classic hyperventilation syndrome, which improved after paramedics arrived. He was

asymptomatic in the ER and released. (Tr. 241-45.)

On September 16, 2014, plaintiff reported to the VA he had experienced the same

symptoms of anxiety as on September 12 although they subsided. He requested talk

therapy and was eager to see a psychologist. (Tr. 554-56.)

On October 9, 2014, plaintiff was seen at the VA. He reported ongoing employment

related stress. He had increased anxiety, as well as a panic attack. He reported some

irritability, decreased appetite, disrupted sleep pattern with frequent awakenings and

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difficulty falling asleep at night, as well as some dreams with a military background. A

mental status exam revealed constricted affect and fair insight. He reported being “happy

to at least have a job.” His GAF score was 55. Assessment indicated depressive disorder

with worsening symptoms in the context of current stressors, with two panic-like attacks

since the last visit. A trial of Trazadone was recommended. He was diagnosed with PTSD

with dysphoria, irritability, anxiety symptoms, hypervigilance, and sleep disruption. (Tr.

341-44.) Plaintiff completed A Posttraumatic Stress Disorder Checklist (PCL-C), a

standardized self-report measure of symptoms of PTSD, and scored 61, indicating he was

positive for PTSD. (Tr. 345-46.)

On November 12, 2014, plaintiff saw Dr. Curtis, reporting that he quit his new job

because he was unable to tolerate the situation. He was frustrated, upset, irritable, agitated,

anxious, and hypervigilant. He had experienced another panic attack since the last visit

but reported some easing of the anxiety since quitting the job. His appetite was decreased,

and sleep disrupted. Trazadone was not helpful. His affect or mood was intermittently

angry, and his insight was fair. His GAF score was 55. He was diagnosed with depressive

disorder, worsening symptoms. His Trazadone was increased, and Vistaril, for anxiety,

was prescribed. (Tr. 604-607.)

On January 6, 2015, plaintiff saw Dr. Curtis. He completed another PCL-C test and

scored 66. He reported to Dr. Curtis he was no longer seeking employment and was

frustrated with the problems he saw in the civilian community related to work ethic. He

rated his mood between 3-5/10 and reported he was more withdrawn recently. He had

heightened irritability, was easily frustrated, and his anxiety level remained elevated. His

sleep was fair, but he reported difficulty sustaining sleep. His GAF score was 55. He

complained of a worsening mood, social withdrawal, ongoing irritability, and anxiety,

despite resolution of his employment related stressors. His Zoloft was increased to

improve his mood symptoms. (Tr. 607-14.)

On March 6, 2015, plaintiff saw Dr. Curtis. He had stopped taking Zoloft because

he thought the higher dose led to more frequent panic attacks. His anxiety level was rated

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8/10 most of the time exacerbated by “thinking too much” every few days. He described

his mood as “not too bad” and said he was feeling less irritable. He had recently started

attending church and exercising regularly. His sleep was disrupted by terminal insomnia,

and he was awakened by noises and unable to return to sleep. He had started seeing a

second psychiatrist in the community and was receiving medications for anxiety. Dr.

Curtis told him he needed to select and continue care with only one psychiatrist. (Tr. 615-

19.)

Around April 14, 2015, plaintiff’s wife applied to the Family Caregiver program

and reported the following. Plaintiff cannot drive, cannot be left alone, and will not go

anywhere without her. He needs to go everywhere with her which is difficult considering

his discomfort in crowds. He sits in the bedroom in the dark if left alone. She helps him

with medications, supervises his kitchen tasks, and reminds him about personal care. He

has nightmares that interrupt both of their sleep. She has too many responsibilities with

him and their daughter to maintain employment. Plaintiff was frequently absent at prior

jobs due to sleeping, anxiety, and panic attacks. Plaintiff felt his PTSD was out of control.

(Tr. 621-22.)

On May 13, 2015, plaintiff saw psychiatrist Jane Loitman, M.D., a new provider.

He stated he was struggling with depression, energy, irritability, tearfulness, and difficulty

getting up in the morning, showering, and engaging. Dr. Loitman prescribed Escitalopram,

an antidepressant. (Tr. 635-69.)

During a June 10, 2015 visit with Dr. Loitman plaintiff revealed a euthymic mood

(without a mood disorder) and congruent affect, which was full range and appropriately

tearful. He discussed a dream he connected to the military where he was being stabbed.

(Tr. 642-45.)

On June 12, 2015, plaintiff underwent an Occupational Therapy Evaluation after he

reported a lack of motivation to get out of bed and preference to stay in bed away from the

outside world. He found it difficult to be alone. He did not feel focused. He was unsure

if he had memory issues, and reported his wife keeps him on track with appointments and

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medications. As to activities of daily living, he can follow directions for microwave meals

but has forgotten food left on the stove. His wife manages their money. When he buys

things, he does not pay attention to the change. At their home, his wife does the inside

work, and he does the outside work. He is seldom left alone to care for their daughter. He

does not like driving. He was accustomed to looking out for dangerous things on the

roadside, such as bags, rocks, etc., but finds this stressful now. He misses exits from time

to time. He wants to work but his anxiety is a barrier. He scored 23/30, slightly below

normal, on the Montreal Cognitive Assessment, a cognitive screening test designed to

assist in detecting mild cognitive impairment and Alzheimer's disease. He had mild

cognitive dysfunction with errors, largely in sentence repetition, fluency, abstraction, and

memory/delayed recall. (Tr. 464-66.)

In a function report dated November 12, 2015, plaintiff reported the following. He

has difficulty staying focused. He has panic attacks, flashbacks, nightmares, insomnia, and

anger outbursts. He has fatigue and falls asleep when trying to complete tasks. His wife

reminds him of daily functions. He gives the dog food and water with the help of his wife.

He needs reminders to bathe, get ready to leave the house, and dress. His wife helps him

remember medications. He sometimes forgets to turn off the stove and gets fatigued. As

to housework, he takes care of the trash and cuts the grass occasionally. His wife reminds

him of these activities. He can drive but prefers to have someone with him because he has

had panic attacks while driving in the past and needed to pull over to the side of the road.

He does not shop and is unable to manage a savings account or checkbook. His wife

manages their finances. He has difficulty remembering what money he spent. He formerly

enjoyed assembling models as a hobby, but it now takes him a while due to his lack of

focus and inability to complete tasks in general. He attends church twice a week and

sometimes needs reminders about the day of the week. He does not feel comfortable

socializing and does not trust people. Attending church is his only social activity. He has

difficulty following instructions and getting along with others. His ability to pay attention

varies from day-to-day and he sometimes needs repeated instructions. He does not handle

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stress well. He “shuts down” and shuts people out. He does not handle change in routine

well. He likes things to be in order or it affects his mood. He sometimes has feelings of

flashbacks or attacks when outside. (Tr. 199-205.)

On January 15, 2016, state agency psychologist consultant Charles W. Watson,

Psy.D. reviewed plaintiff’s file at the initial level. He opined that plaintiff was moderately

limited in his ability to: understand, carry out and remember detailed instructions, maintain

attention and concentration for extended periods, work in coordination with or in proximity

to others without being distracted by them, interact appropriately with the general public,

get along with coworkers or peers without distracting them or exhibiting behavioral

extremes and respond appropriately to changes in the work setting and set realistic goals

or make plans independently of others. Dr. Watson concluded plaintiff retained the ability

to understand, remember and execute simple work instructions, could work with others on

a limited contact basis, and appeared to have the capacity to adapt to simple work

environments.

Dr. Watson reviewed a statement from Dr. Liss from plaintiff’s file and concluded

the opinion was out of date, not supported with his own notes, which he described as sparse

and contradictory, and provided an opinion reserved to the Commissioner. Dr. Watson

noted it was dated during the previous Psychiatric Review Technique Form review, and

therefore addressed it but gave it no weight. (Tr. 72-74.)

On August 26, 2016, Dr. Liss authored a Mental Residual Functional Capacity

(RFC) Questionnaire. He reported treating plaintiff between June 2014 through July 27,

2015. He diagnosed PTSD and indicated plaintiff’s PTSD was chronic and progressive,

and while there was no defined treatment defined, psychotherapy was his current treatment.

He identified the following signs and symptoms: anhedonia or pervasive loss of interest in

almost all activities; thoughts of suicide; feelings of guilt or worthlessness; generalized

persistent anxiety; mood disturbance; difficulty thinking or concentrating; recurrent and

intrusive recollections of a traumatic experience, which are a source of marked distress;

psychomotor agitation or retardation; persistent disturbances of mood or affect; change in

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personality; paranoid thinking or inappropriate suspiciousness; emotional withdrawal or

isolation; psychological or behavioral abnormalities associated with a dysfunction of the

brain with a specific organic factor judged to be etiologically related to the abnormal mental

state and loss of functional abilities; and persistent irrational fear of a specific object,

activity or situation which results in a compelling desire to avoid the dreaded object,

activity or situation. Dr. Liss also referred to a checklist of symptoms he identified from

his previous June 2014 opinion. He opined plaintiff was unable to meet competitive

standards in all areas of the mental abilities and aptitudes needed for unskilled work due to

his symptoms. He opined plaintiff would miss more than 4 days of work per month because

of his impairments or treatment and his symptoms were reasonably consistent with the

symptoms and functional limitations described in the evaluation. (Tr. 711-15.)

On November 1, 2016, following a hearing and at the request of the ALJ, plaintiff

underwent a psychological evaluation with Michael T. Armour, Ph.D. (Tr. 729-41.) Dr.

Armour performed a clinical interview, Trails A and B testing, Wechsler Memory Scale

IV, Wechsler Adult Intelligence Scale IV, and reviewed records from the Department of

Social Services. Plaintiff reported serving in the Army for 20 years with his highest rank

as an E6, which was staff Sergeant, and he received an honorable discharge after three

tours in Iraq and one in Afghanistan. He reported he was in combat and saw others get

wounded or killed. He reported bad dreams or nightmares about past combat experiences

2-3 times per week, but it can happen more frequently. He had unwanted intrusive thoughts

of past abuse and he must avoid at times stimuli or reminders of the abuse. He had

flashbacks reliving combat experiences about twice a week. He reported having some

disagreements with coworkers at jobs after leaving the military. He reported using the VA

for psychiatric treatment in the past but stopped as he felt more upset when he left the VA,

so he started seeing Dr. Liss in private practice. (Tr. 729-32.)

Plaintiff underwent the Trail Making Test (TMT), a timed, neuropsychological test

that involves visual scanning and working memory. It revealed plaintiff was functioning

in the upper end of the impaired range on Trails A testing, a visual sequencing activity, and

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in the impaired range on Trails B, a more complex visual sequencing task, which required

him to alternate between sequences of numbers and letters. His performance indicated he

can perform visual sequencing tasks but at times gets “lost” in scanning his visual

environment. (Tr. 732.)

On the Wechsler Memory Scale, a neuropsychological test designed to measure

different memory functions, plaintiff performed in the low average range for auditory,

immediate, and delayed memory. He was in the 9th percentile in auditory memory, 13th

percentile in immediate memory, and 18th percentile in delayed memory. Plaintiff was in

the average range on visual and visual working memory. IQ testing revealed a Verbal

Comprehension Score of 89, in the 23rd percentile, or low average. In Perceptual

Reasoning he scored 88, in the 21st percentile and low average. His working memory

index score was 95, in the 37th percentile, and average. His Processing Speed score was

86, in the 18th percentile, or low average range. His Full-Scale IQ score was 86, the low

average range and in the 18th percentile. Dr. Armour believed this was a mild

underestimation of his actual level of cognitive functioning. Plaintiff fell in the low

average range on task assessing, general, nonverbal problem-solving skills and on

measures of his processing speed on timed tasks and on coding tasks. (Tr. 732-33.)

Plaintiff’s mental status exam revealed plaintiff as somewhat formal. His mood

during the evaluation session was more somber and he reported ongoing problems with

depression and anxiety. His affect or perceived emotion was limited in range in that he did

not show much emotional expression or variation during the interview but the emotion he

showed was appropriate to the emotional tone of the subjects discussed and to his self-

report of his mood. He reported flashbacks twice a week and an “off and on” sleep pattern

reporting it is worse when he has nightmare. He reported an “up and down” appetite and

energy level and reported having stayed in bed all day one day the previous week. He

reported excessive energy when he was in the military in combat situations and that he still

had racing thoughts 3-4 times per week. He described his mood as generally anxious and

that he engages in “negative anticipation.” He reported episodes of being depressed and

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withdrawn which can last for a day or two at a time. He has crying spells 2-3 times per

week and can choke up over thoughts of suicide. Dr. Armour diagnosed PTSD, recurrent

moderate major depressive disorder, generalized anxiety disorder, panic disorder, and

alcohol use disorder by history. (Tr. 733-35.)

Dr. Armour opined plaintiff had mild impairment in his ability to understand and

recall instructions, as he did not show symptoms of attention or focusing difficulty. He

had moderate to at times severe impairment in his ability to concentrate and persist in tasks.

Armour opined plaintiff had a severe impairment in his ability to interact socially and adapt

to his environment, reporting difficulty with interacting with others, feeling depressed and

anxious, and that he did not fit in or “mesh” with others. Armour noted plaintiff reported

he can do basic daily tasks but has ongoing problems with anxiety and depression and will

isolate himself and stay in bed all day due to depression and anxiety. (Tr. 735-36.)

ALJ HEARING

On October 4, 2018, plaintiff appeared and testified to the following at a hearing

before an ALJ. (Tr. 32-62.) He has a twelfth-grade education. He is retired since 2011

and 20 years in the Army as a petroleum handler. He worked at UPS as a package handler

from February to July 2012. He has worked in security at Blackwell Security Services,

Andy’s Frame Services, and Whelan Security. He left Whelan Security where he was an

armed security guard at the St. Louis Amtrak station after having panic attacks about the

imminent danger the job presented. (Tr. 38-47, 49.)

During a typical day he gets up and helps his wife get their five-year-old daughter

ready for school, as well as feeds the dogs. He reads or does other things, such as lawn

work, to occupy himself during the day. He tends to forget a lot of things. He attends

church regularly. (Tr. 47-51.)

He stays to himself a lot now and his trust level is very low. He prefers to be by

himself. He has some hostility towards others. He has panic attacks lasting two to five

minutes and which occur about two or three times per week. He has brief crying spells

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about two or three times per week. He has nightmares about four times per week and is

hypervigilant while out shopping, for example. His home is his “safe haven.” (Tr. 51-55.)

A vocational expert also testified to the following. Plaintiff’s past relevant work is

identified as petroleum supply specialist for the military, which is semi-skilled, and

transfers to DOT distribution supervisor. He also has past relevant work as a security guard

and hand packager. The vocational expert testified plaintiff would be unable to perform

his past relevant work.

The ALJ asked the vocational expert about a hypothetical individual with what

would later become plaintiff’s residual functional capacity. The vocational expert testified

that there was other work that existed in the national economy that such an individual could

perform, including document preparer, linen supply load builder, and laundry worker. (Tr.

59-62.)

DECISION OF THE ALJ

On January 12, 2017, the ALJ issued a decision finding that plaintiff was not

disabled. (Tr. 1, 19-27.)1 At Step One, the ALJ found that plaintiff had not engaged in

substantial gainful activity since November 1, 2014, his alleged onset date. (Tr. 21.) At

Steps Two and Three, the ALJ found that plaintiff had the severe impairment of post-

traumatic stress disorder with panic attacks, but that this impairment did not meet or

medically equal a listed, presumptively disabling impairment prior to December 31, 2019,

his date last insured. (Tr. 21.)

For purposes of the final two steps, the ALJ found that plaintiff had the residual

functional capacity (RFC) of a full range of work at all exertional levels but with the

following nonexertional limitations: avoid all exposure to operational control of moving

machinery and unprotected heights; work is limited to performing simple, routine repetitive

1 The ALJ’s decision is undated but was issued January 12, 2017, as noted elsewhere in the

record.

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tasks in a work environment free of fast paced production requirements, although end of

day quotas are acceptable, and simple work-related decisions with few, if any, workplace

changes; job responsibilities that do not require public interaction, only casual and

infrequent interaction with co-workers with no tandem tasks, and occasional interaction

with supervisors. (Tr. 22-23.)

At Step Four, with vocational expert testimony, the ALJ found that plaintiff was

unable to perform his past relevant work as a distribution supervisor, a security guard, and

a hand packager. However, at Step Five, the ALJ found there were other jobs that existed

in the national economy that plaintiff could perform, such as document preparer, linen

supply load builder, and laundry worker. The ALJ therefore concluded that plaintiff was

not disabled under the Act. (Tr. 26-27.)

GENERAL LEGAL PRINCIPLES

In reviewing the Commissioner’s denial of an application for disability insurance

benefits, the Court determines whether the decision complies with the relevant legal

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

§ 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Pate-Fires v. Astrue, 564 F.3d

935, 942 (8th Cir. 2009). Substantial evidence is “more than a mere scintilla” and “such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019); Cox v. Astrue, 495 F.3d 614, 617

(8th Cir. 2007). The review considers not only the record for the existence of substantial

evidence in support of the Commissioner’s decision. It also considers whatever in the

record fairly detracts from that decision. Cox v. Apfel, 160 F.3d 1203, 1207 (8th Cir. 1998).

This Court may not reverse the Commissioner’s decision merely because substantial

evidence exists in the record that would have supported a contrary outcome or because the

Court would have decided the case differently. See Krogmeier v. Barnhart, 294 F.3d 1019,

1022 (8th Cir. 2002).

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To be entitled to disability benefits, a claimant must prove 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); Pate-Fires,

564 F.3d at 942. A five-step regulatory framework is used to determine whether an

individual is disabled. 20 C.F.R. § 404.1520(a)(4); see also Bowen v. Yuckert, 482 U.S.

137, 140-42 (1987) (describing five-step process); Pates-Fires, 564 F.3d at 942.

Steps One through Three require the claimant to prove: (1) he is not currently

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

condition meets or equals a listed, presumptively disabling 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. § 404.1520(a)(4)(iv). The claimant bears the burden of

demonstrating he is no longer able to do so. Pate-Fires, 564 F.3d at 942. If the

Commissioner determines the claimant cannot return to his PRW, the burden shifts to the

Commissioner at Step Five to show the claimant retains the RFC to perform other work

that exists in significant numbers in the national economy. Id.; 20 C.F.R. §

404.1520(a)(4)(v).

III. DISCUSSION

Plaintiff asserts the ALJ erred in (1) evaluating the medical opinion evidence; and

and (2) assessing his credibility. The Court disagrees.

Medical Opinion Evidence

Consulting Psychologist Michael Armour, Ph.D.

Plaintiff argues the ALJ erred in giving psychologist Dr. Armour’s opinion only

“partial” weight. He notes the ALJ did not consider or discuss the extent to which Dr.

Armour reviewed the evidence or the extent of his evaluation. He complains the ALJ

adopted Dr. Armour’s opinion that plaintiff was markedly limited in concentration,

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persistence, and pace, but did not give any weight to his opinion that plaintiff had severe

limitations in social functioning and adapting and managing. He complains the decision

contains no discussion regarding why only one part of the opinion was accepted while the

other parts were not. He notes that while Dr. Watson’s opinion was not discounted despite

conducting no examination, it makes little sense that Dr. Armour’s opinion was discounted

for this reason. He contends that if Dr. Armour’s opinion was not entitled to greater weight

because he only conducted one exam, Dr. Watson’s opinion was entitled to even less

weight, as a non-examining physician who reviewed only part of the record and did not see

the results of Dr. Armour’s exam or testing.

Plaintiff further notes that Dr. Armour was the last person to review the record

evidence and conduct an exam and testing. He argues that if the ALJ had afforded great

weight to Dr. Armour’s opinion, as an examining source, plaintiff would have been found

incapable of performing any type of work. He notes that Dr. Armour found plaintiff had

severe impairments in social functioning, concentration, persistence and pace and adapting

and managing oneself. He argues the decision contains no rationale as to why Dr. Watson’s

opinion was entitled to more weight than Dr. Armour’s. He argues that while a rationale

was given, it was not accurate, so the decision contains no legitimate reason for finding

Watson’s opinion more persuasive.

State Agency Consultant Charles W. Watson, Psy.D.

Plaintiff argues the ALJ erred in giving “great” weight to state agency consultant

Dr. Charles Watson’s January 15, 2016 opinion from the initial level. He notes the ALJ

gave three reasons for affording great weight to Dr. Watson’s opinion, i.e., that it was based

on a review of the evaluation of Dr. Armour and on a review of the entire record available

at the time, and Dr. Watson has expertise and familiarity with SSA program rules. Plaintiff

points out that Dr. Watson, a non-examining physician, did not review Dr. Armour’s

evaluation because it did not exist until November 2016, well after Dr. Watson issued his

opinion. He notes the ALJ misstates the date of Dr. Armour’s evaluation as November 1,

2015, rather than November 1, 2016. He further notes Dr. Watson did not review the entire

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file, including Dr. Armour’s evaluation and the 2016 opinion from Dr. Liss. He contends

the fact that Dr. Watson reviewed some record evidence before issuing his opinion and his

familiarity with the SSA program rules is insufficient to warrant giving his opinion great

weight.

Plaintiff also complains that although the ALJ gave “great weight” to Dr. Watson’s

opinion, he failed to consider all the limitations in the opinion. He notes that while the

ALJ found a marked impairment in concentration, persistence and pace, he failed to explain

why he did not adopt Dr. Watson’s opinion regarding plaintiff being only moderately

limited in concentration, persistence and pace. Therefore, he argues that if Dr. Watson’s

opinion is entitled to “great weight,” then the ALJ was obligated to find plaintiff had only

moderate limitations in concentration, persistence, and pace. He argues that if the ALJ

rejected this part of the opinion, he was obligated to explain the basis therefor. He asserts

this is a material inconsistency that the ALJ failed to address.

Treating Psychiatrist Jay L. Liss, M.D.

Plaintiff next argues the ALJ erred in giving only “little” weight to the opinion of

treating psychiatrist Dr. Jay Liss. Plaintiff argues he saw Dr. Liss on eight occasions, every

four months from 2014 through 2016, at the same time he was also seeing a VA

psychiatrist. He argues the ALJ’s reasoning that his visits were brief is inaccurate because

the records contain no information as to the length of the visits. He also argues the ALJ

failed to explain how or why the frequency of his visits is inconsistent with Dr. Liss’s

opinion. Plaintiff notes that Dr. Liss noted PTSD is progressive and persistent and there is

no defined treatment, which is not inconsistent with the frequency of visits. He argues the

record as a whole provides a basis for Dr. Liss’s opinion, specifically, Dr. Liss indicated

he reviewed the VA records, provided a great deal of information about his background,

identified the PTSD criteria, documented his diagnosis of PTSD, and prescribed

medication. He takes issue with the ALJ’s notion that Dr. Liss never recommended

intensive outpatient therapy or hospitalization, as there is no indication that this is the

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appropriate treatment for his condition. Finally, he argues the only evidence that is

inconsistent with Dr. Liss’s opinion is that of Dr. Watson.

Plaintiff applied for benefits before March 27, 2017, and the ALJ properly applied

the set of regulations for evaluating medical opinion evidence for this period. It is the

ALJ’s responsibility to weigh conflicting evidence and to resolve disagreements among

physicians. See Cline v. Colvin, 771 F.3d 1098, 1103 (8th Cir. 2014). A treating

physician’s opinion controls if it is well supported by medically acceptable diagnostic

techniques and is not inconsistent with the other substantial evidence. Prosch v. Astrue,

201 F.3d 1010, 1012-13 (8th Cir. 2012). While treating physician opinions typically

receive more weight than opinions from one-time examiners, a treating physician’s opinion

may be disregarded in favor of other opinions if it does not find support in the record. See

20 C.F.R. § 404.1527(c)(1)-(2); See Casey v. Astrue, 503 F.3d 687, 692 (8th Cir. 2007).

The regulations require that the ALJ “always give good reasons” for the weight afforded

to a treating physician's evaluation. Reed v. Barnhart, 399 F.3d 917, 921 (8th Cir. 2005)

(quoting 20 C.F.R. § 404.1527(d)(2)).”). Unless a treating source’s opinion is given

controlling weight, the ALJ’s decision must explain the weight given to the opinions of a

state agency medical consultant or other program physician. In the narrative discussion

section of the decision, the ALJ “must . . . explain how any material inconsistencies or

ambiguities in the evidence in the case record were considered and resolved.” SSR 96-8p,

1996 WL 374184, at *7.

However, an ALJ is not required to adopt all the limitations of any medical opinion.

See Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (ALJ does not need to adopt the

entirety of a medical opinion); Fischer v. Colvin, No. 2:14 CV 104 ACL, 2016 WL

1170972, at *7 (E.D. Mo. Mar. 25, 2016) (although the ALJ assigned “great weight” to a

medical opinion, the ALJ was not obligated to adopt every limitation contained therein).

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The ALJ first evaluated the November 1, 20162 medical opinion of consultative

examiner Dr. Armour ordered by the ALJ following plaintiff’s October 2016

administrative hearing. (Tr. 24.) Dr. Armour based his findings on an interview,

psychological examination, an IQ test, and other objective cognitive testing. Dr. Armour

assessed mild impairment in the ability to understand and recall instructions, observing that

plaintiff demonstrated low-average to average cognitive and memory skills, with no

difficulty understanding and applying different formal assessment instructions. He found

a moderate, and at times severe, impairment in the ability to sustain concentration and

persistence in tasks, citing plaintiff’s reported symptoms of PTSD, depression, and anxiety.

Additionally, Dr. Armour assessed a severe impairment in the ability to interact socially

and adapt to the environment, citing plaintiff’s reported symptoms of PTSD, anxiety, and

depression. (Tr. 735).

The ALJ gave deference to Dr. Armour’s medical expertise, as well as his

familiarity with the rules and regulations of the Social Security disability program, but also

considered that Dr. Armour based his findings on a one-time consultation, and therefore

gave the opinion partial weight. See Chesser v. Berryhill, 858 F.3d 1161, 1165 (8th Cir.

2017) (ALJ may credit a one-time consultant’s opinion over a treating physician when the

consultant’s opinion is “supported by better or more thorough medical evidence.) .

Accounting for Dr. Armour’s findings, the ALJ assessed an RFC limiting plaintiff

to “performing simple, routine repetitive tasks in a work environment free of fast paced

production requirements, although end of day quotas are acceptable, and simple work-

related decisions with few, if any workplace changes.” Addressing Dr. Armour’s finding

of a severe impairment in the ability to interact socially, the ALJ included an RFC

limitation to “job responsibilities [that] do not require public interaction, only casual and

infrequent interaction with co-workers with no tandem tasks, and occasional interaction

2 In the decision, the ALJ incorrectly stated that the psychological evaluation was

completed on November 1, 2015, instead of 2016. (Tr. 24.)

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with supervisors.” Additionally, the ALJ found that plaintiff must “avoid all exposure to

operational control of moving machinery and unprotected heights.” (Tr. 22-23.)

To the extent plaintiff is suggesting that the ALJ failed to account for all the

limitations Dr. Armour assessed, the ALJ neither explicitly nor implicitly rejected the

portion of Dr. Armour’s opinion that plaintiff claims he rejected. Among other restrictions,

the ALJ’s RFC limited plaintiff to “simple work-related decisions with few, if any

workplace changes” and “job responsibilities [that] do not require public interaction, only

casual and infrequent interaction with co-workers with no tandem tasks, and occasional

interaction with supervisors,” among other restrictions. (Tr. 22-23). This Court

concludes the ALJ reasonably assigned Dr. Armour’s opinion partial weight and accounted

for the limitations he assessed in the RFC.

Second, the ALJ properly considered the opinion of state agency psychological

consultant Dr. Watson. (Tr. 24, 69-74.) Based on a review of the evidence, Dr. Watson

opined that plaintiff retained the ability to understand, remember, and execute simple work

instructions; work with others on a limited contact basis; and adapt to simple work

environments within those parameters. (Tr. 24, 74.) Noting Dr. Watson’s opinion was

based on a review of the entire record available in January 2016, and citing his expertise in

mental health and familiarity with the rules and regulations of the Social Security disability

program, the ALJ reasonably gave his opinion great weight and accounted for his findings

in the RFC. (Tr. 24.) See Kraus v. Saul, 988 F.3d 1019, 1025 (8th Cir. 2021) (opinions

from state agency medical and psychological consultants may be entitled to greater weight

than the opinions of treating or examining sources where better supported by the evidence);

Social Security Ruling (SSR) 96-6p, 1996 WL 374180, at *2 (“State agency medical and

psychological consultants are highly qualified physicians and psychologists who are

experts in the evaluation of the medical issues in disability claims under the Act.”).3

3 After the ALJ’s decision, SSA rescinded SSR 96-6p effective March 27, 2017. See SSR

17-2p, 2017 WL 3928306, at *1.

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As to the ALJ’s misstatement that Dr. Watson had the opportunity to review Dr.

Armour’s evaluation--conducted after Dr. Watson’s review of the record—this error is

harmless in light of the consistency between the two opinions and the ALJ’s accounting

for both opinions in evaluating plaintiff’s impairments and formulating his RFC. See

generally 20 C.F.R. § 404.1545(a)(3) (requiring the ALJ to base the RFC findings on “all

of the relevant medical and other evidence” in the record); Goff v. Barnhart, 421 F.3d 785,

793 (8th Cir. 2005) (ALJ must assess a claimant’s RFC based on all relevant, credible

evidence in the record, including the medical records, observations of treating physicians

and others, and an individual's own description of his limitations.)

As to plaintiff’s argument that the ALJ erred by finding a marked limitation in

concentration, persistence, or pace at Steps Two and Three, whereas Dr. Watson found

only a moderate limitation in that area, plaintiff does not explain how any purported

inconsistency in finding him more limited constitutes prejudicial error. (Tr. 22, 69).4 In

any event, there is no material inconsistency. “Great” weight is not controlling weight, and

the ALJ is tasked with evaluating the claimant’s RFC based on the record as a whole, rather

than relying entirely on a particular physician’s opinion or choose between opinions.

Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011). Furthermore, the difference between

the ALJ’s and Dr. Watson’s “paragraph” B findings at Steps Two and Three is immaterial

in light of the consistent findings in their detailed RFC assessments, which plaintiff does

not challenge. (Tr. 22-23, 72-74). SSR 96-8p states:

the limitations identified in the ‘paragraph B’ and ‘paragraph C’ criteria are

not an RFC assessment but are used to rate the severity of mental

impairment(s) at steps 2 and 3 of the sequential evaluation process. The

mental RFC assessment used at steps 4 and 5 of the sequential evaluation

process requires a more detailed assessment by itemizing various functions

contained in the broad categories found in paragraphs B and C of the adult

mental disorders listings . . . .

4 After the ALJ’s decision, SSA revised the “paragraph B” criteria for mental impairments

considered at Steps Two and Three. See 81 Fed. Reg. 66138-01 (Sept. 26, 2016). The

ALJ correctly applied the regulations in effect at the time of the decision.

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1996 WL 374184, at *4.

Third, the ALJ properly considered the August 2016 Mental RFC Questionnaire of

Dr. Liss. The ALJ found the probative value of Dr. Liss’s opinion limited by the “lack of

basis or reason for the opinions expressed therein.” (Tr. 25.) Dr. Liss’s functional

assessment indicated that plaintiff was unable to meet competitive standards in all

functional areas. In the portion of the form calling for an explanation of his limitations,

Dr. Liss cited plaintiff’s PTSD with symptoms of isolation and aggression, and a cognitive

impairment. He did not provide a narrative explanation elsewhere in the opinion. (Tr. 711-

15.) Such deficiency is a valid reason to discount a treating physician’s opinion. See

Hilliard v. Saul, 964 F.3d 759, 762 (8th Cir. 2020) (affirming ALJ that did not give weight

to physician assistant’s opinion because he completed a checklist with brief commentary).

See also 20 C.F.R. § 404.1527(c)(3) (“The better an explanation a source provides for a

medical opinion, the more weight we will give that medical opinion.”).

Additionally, the ALJ found Dr. Liss’s across-the-board assessment that plaintiff

was unable to meet competitive standards in all categories to be at odds with his own

treatment notes, which the ALJ believed showed brief routine office visits with little detail

and at odds with the opinions expressed. (Tr. 25, 270-72, 437-38, 680). See 20 C.F.R.

§ 404.1527 (c)(4) (“Generally, the more consistent a medical opinion is with the record as

a whole, the more weight we will give to that medical opinion.”). The ALJ also noted that

Dr. Liss’s treatment notes did not contain any mental status examinations or other evidence

of objective assessment. (Tr. 25, 270-72, 437-38, 680). See 20 C.F.R. § 404.1527(c)(3)

(“The more a medical source presents relevant evidence to support a medical opinion,

particularly medical signs and laboratory findings, the more weight we will give that

medical opinion.”). Based on Dr. Liss’s lack of explanation for his opinion, the absence

of support in his own treatment records, and the opinion’s inconsistency with the record as

a whole, this Court concludes the ALJ properly gave it little weight.

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As to plaintiff’s argument that Dr. Liss’s August 2016 opinion and the June 2014

VA questionnaire provide a great deal of information, neither of these sources explain how

plaintiff’s PTSD diagnosis translates into specific functional limitations. As to plaintiff’s

broad assertion that the record as a whole provides support for Dr. Liss’s opinion, again

however, plaintiff cites no evidence supporting the specific functional limitations Dr. Liss

assessed. Instead, he broadly contends that the record evidence documents ongoing PTSD

symptoms and medication adjustments, matters that are not in dispute. The ALJ found that

the record supported the severe impairment of PTSD with panic attacks, resulting in

significant RFC limitations. Plaintiff has the burden to prove his RFC. See Kraus, 988 F.

3d at 1024. Here, plaintiff has not shown how the evidence supports the limitations Dr.

Liss assessed.

The Court also rejects plaintiff’s assertion that the ALJ should have recontacted Dr.

Liss to clarify his opinion. The ALJ can make a decision when the evidence is complete

and consistent, and if the record is sufficient, the ALJ can make a decision based on the

existing record. See 20 C.F.R. § 404.1520b. Here, the ALJ had complete evidence of

plaintiff’s treatment that was not inconsistent, and the evidence was based on medically

acceptable diagnostic techniques, i.e., plaintiff was treated by a psychiatrist. See id. at §

404.1520b(b). On the other hand, if the evidence is inconsistent, the ALJ looks to the

remaining evidence to determine if he can determine whether plaintiff is disabled based on

the existing evidence. See id. at § 404.1520b(b)(1). The Court notes plaintiff does not

argue that there were additional medical records from this time but that the ALJ should

have sought additional medical opinions. In this case the record evidence was sufficient

for the ALJ to make a determination. The ALJ discounted the opinion of Dr. Liss because

it was not consistent with the record evidence. The ALJ reasonably determined that the

record as a whole, including the supporting opinions of Dr. Armour and Dr. Watson, was

sufficient to make a determination on disability.

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Evaluation of Plaintiff’s Credibility

Plaintiff next argues the ALJ erred in evaluating his credibility. Defendant counters

that the ALJ properly evaluated his symptoms.

The Court concludes the ALJ’s credibility determination was justified. Credibility

determinations are the province of the ALJ, and as long as “good reasons and substantial

evidence” support the ALJ's evaluation of credibility, the reviewing court will defer to his

decision. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). An ALJ may decline

to credit a claimant's subjective complaints “if the evidence as a whole is inconsistent with

the claimant's testimony.” Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006).

When evaluating the claimant's subjective complaints, the ALJ must consider all the

evidence, including objective medical evidence, the claimant's work history, and evidence

relating to the Polaski factors: (1) the claimant's daily activities; (2) the duration, frequency,

and intensity of the claimant's pain; (3) precipitating and aggravating factors; (4) the

dosage, effectiveness, and side effects of medication; and (v) the claimant's functional

restrictions. 739 F.2d at 1322.

In his discussion of the evidence and consideration of plaintiff’s subjective

complaints, the ALJ noted that the record evidence from the VA showed routine office

visits, that plaintiff improved with medication, that he declined psychotherapy, and that the

record contained no evidence of treatment commensurate with the debilitating degree of

impairment alleged. The ALJ also found that despite his allegations of disabling PTSD

related to his military service, plaintiff was able to serve in the Army from 1991 to 2011

before retiring, rather than receiving a medical discharge. (Tr. 25.)

Based on the above, this Court concludes the ALJ’s findings are supported by

substantial evidence and the ALJ properly considered plaintiff’s credibility.

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VI. CONCLUSION

For the reasons set forth above, the Court concludes the ALJ did not err in his

decision. The decision of the Commissioner of Social Security is affirmed. A separate

Judgment Order is issued herewith.

/s/ David D. Noce k

UNITED STATES MAGISTRATE JUDGE

Signed on September 6, 2022.

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