ALJ is not required to rely entirely on one particular physician’s opinion or choose between opinions
How later courts described this case
- ALJ is not required to rely entirely on one particular physician’s opinion or choose between opinions
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TIMOTHY J. SUMMERS, )
)
Plaintiff, )
)
vs. ) Case No. 4:21-CV-1390-ACL
)
KILOLO KIJAKAZI, )
Commissioner of Social Security )
Administration, )
)
Defendant. )
MEMORANDUM
Plaintiff Timothy J. Summers brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of the Social Security Administration Commissioner’s denial of his application
for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act and
Supplemental Security Income (“SSI”) under Title XVI of the Act.
An Administrative Law Judge (“ALJ”) found that, despite Summers’ severe impairments,
he was not disabled as there were jobs existing in significant numbers that he could perform.
This matter is pending before the undersigned United States Magistrate Judge, with
consent of the parties, pursuant to 28 U.S.C. § 636(c). A summary of the entire record is
presented in the parties’ briefs and is repeated here only to the extent necessary.
For the following reasons, the decision of the Commissioner will be affirmed.
I. Procedural History
Summers filed his application for benefits on June 18, 2019. (Tr. 88-89.) He claimed
he became unable to work on November 24, 2018, due to a herniated disc in his neck, epilepsy,
Page 1 of 25
short-term memory difficulties, autism, attention deficit hyperactivity disorder (“ADHD”),
asthma, sleep issues, depression, and anxiety. (Tr. 289.) Summers was 36 years of age at his
alleged onset of disability date. (Tr. 30.) His application was denied initially. (Tr. 128-36.)
Summers’ claim was denied by an ALJ on March 17, 2021. (Tr. 16-32.) On September 29,
2021, the Appeals Council denied Summers’ claim for review. (Tr. 1-4.) Thus, the decision of
the ALJ stands as the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.
In this action, Summers first argues that the ALJ erred by failing to “identify the
claimant’s autism spectrum disorder as a severe impairment, with resulting functional
restrictions.” (Doc. 17 at 5.) He next argues that the ALJ erred in failing “to consider properly
whether Summers met or equaled listing 12.10.” Id. at 7. Summers also contends that the ALJ
failed to “properly evaluate Summers’ limitations in concentration, persistence and pace.” Id. at
9. Finally, he argues that the ALJ failed to “properly evaluate Summers’ limitations in social
functioning.” Id. at 10.
II. The ALJ’s Determination
The ALJ first found that Summers met the insured status requirements of the Social
Security Act through December 31, 2021. (Tr. 18.) He stated that Summers has not engaged in
substantial gainful activity since his alleged onset date. Id. In addition, the ALJ concluded that
Summers had the following severe impairments: degenerative disc disease, seizure disorder,
ADHD, and a social anxiety disorder. Id. The ALJ found that Summers did not have an
impairment or combination of impairments that met or medically equaled the severity of one of
the listed impairments. (Tr. 19.)
As to Summers’s RFC, the ALJ stated:
Page 2 of 25
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except: he can never climb ladders, ropes, or scaffolds,
never crawl, and never balance as the latter term is defined in the
Selected Characteristics of Occupational Exploration. He can
occasionally climb ramps and stairs, stoop, kneel, and crouch. He
can occasionally reach overhead and frequently reach in all other
directions bilaterally. He can frequently handle and finger. He
should avoid concentrated exposure to excessive vibration,
extremes of heat and cold, and pulmonary irritants. He should
avoid all exposure to workplace hazards such as operational
control of moving machinery, hazardous machinery, and
unprotected heights. He is limited to simple, routine, repetitive
tasks with occasional, simple work-related decisions. He is
limited to jobs that can be learned by demonstration. He should
work with things more than people. He can tolerate minimal
changes in work setting or routine, with no paced production
quotas. Public contact should be incidental to work tasks. He
can have occasional contact with coworkers, no tandem tasks, and
occasional supervision.
(Tr. 22.)
The ALJ found that Summers was unable to perform any of his past relevant work, but
was capable of performing other work existing in substantial numbers in the national economy.
(Tr. 30-31.) For example, Summers could perform the positions of sandwich board carrier,
usher, and ironer. (Tr. 31.) The ALJ therefore concluded that Summers was not under a
disability, as defined in the Social Security Act, from November 24, 2018, through the date of
the decision. (Tr. 32.)
The ALJ’s final decision reads as follows:
Based on the application for a period of disability and disability
insurance benefits protectively filed on June 18, 2019, the claimant
is not disabled as defined in sections 216(i) and 223(d) of the
Social Security Act.
Based on the application for supplemental security income
Page 3 of 25
protectively filed on June 18, 2019, the claimant is not disabled
under section 1614(a)(3)(A) of the Social Security Act.
Id.
III. Applicable Law
III.A. Standard of Review
The decision of the Commissioner must be affirmed if it is supported by substantial
evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389,
401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002). Substantial evidence is less
than a preponderance of the evidence, but enough that a reasonable person would find it adequate
to support the conclusion. Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This
“substantial evidence test,” however, is “more than a mere search of the record for evidence
supporting the Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir.
2007) (internal quotation marks and citation omitted). “Substantial evidence on the record as a
whole . . . requires a more scrutinizing analysis.” Id. (internal quotation marks and citations
omitted).
To determine whether the Commissioner’s decision is supported by substantial evidence
on the record as a whole, the Court must review the entire administrative record and consider:
1. The credibility findings made by the ALJ.
2. The plaintiff’s vocational factors.
3. The medical evidence from treating and consulting physicians.
4. The plaintiff’s subjective complaints relating to exertional and
non-exertional activities and impairments.
Page 4 of 25
5. Any corroboration by third parties of the plaintiff’s
impairments.
6. The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
claimant’s impairment.
Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (internal
citations omitted). The Court must also consider any evidence which fairly detracts from the
Commissioner’s decision. Coleman, 498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047, 1050
(8th Cir. 1999). However, even though two inconsistent conclusions may be drawn from the
evidence, the Commissioner's findings may still be supported by substantial evidence on the
record as a whole. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001) (citing Young v.
Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). “[I]f there is substantial evidence on the record as
a whole, we must affirm the administrative decision, even if the record could also have supported
an opposite decision.” Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal
quotation marks and citation omitted); see also Jones ex rel. Morris v. Barnhart, 315 F.3d 974,
977 (8th Cir. 2003). Put another way, a court should “disturb the ALJ's decision only if it falls
outside the available zone of choice.” Papesh v. Colvin, 786 F.3d 1126, 1131 (8th Cir. 2015)
(citation omitted).
III.B. Determination of Disability
A disability is defined as the inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to
result in death or that has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. § 416.905. A claimant
has a disability when the claimant is “not only unable to do his previous work but cannot,
Page 5 of 25
considering his age, education and work experience engage in any kind of substantial gainful
work which exists … in significant numbers in the region where such individual lives or in
several regions of the country.” 42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. § 416.920; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). First,
the Commissioner will consider a claimant’s work activity. If the claimant is engaged in
substantial gainful activity, then the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see “whether the claimant has a severe impairment that significantly limits the
claimant’s physical or mental ability to perform basic work activities.” Dixon v. Barnhart, 343
F.3d 602, 605 (8th Cir. 2003). “An impairment is not severe if it amounts only to a slight
abnormality that would not significantly limit the claimant’s physical or mental ability to do
basic work activities.” Kirby, 500 F.3d at 707; see 20 C.F.R. §§ 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes necessary
to do most jobs.” 20 C.F.R. § 416.921(b). These abilities and aptitudes include (1) physical
functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, or handling; (2)
capacities for seeing, hearing, and speaking; (3) understanding, reaching out, and remembering
simple instructions; (4) use of judgment; (5) responding appropriately to supervision, co-
workers, and usual work situations; and (6) dealing with changes in a routine work setting. Id. §
416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141 (1987). “The sequential evaluation
process may be terminated at step two only when the claimant’s impairment or combination of
impairments would have no more than a minimal impact on his ability to work.” Page v.
Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotation marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled,
regardless of age, education, and work experience. 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d);
see Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements”
of the claimant’s past relevant work. 20 C.F.R. §§ 416.920(a)(4)(iv), 416.945(a)(4). “RFC is a
medical question defined wholly in terms of the claimant’s physical ability to perform exertional
tasks or, in other words, what the claimant can still do despite his or his physical or mental
limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks
omitted); see 20 C.F.R. § 416.945(a)(1). The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.” 20 C.F.R. §
416.945(a)(3). The Commissioner also will consider certain non-medical evidence and other
evidence listed in the regulations. See id. If a claimant retains the RFC to perform past
relevant work, then the claimant is not disabled. Id. § 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is
other work that the claimant can do, given the claimant’s RFC as determined at Step Four, and
his age, education, and work experience. See Bladow v. Apfel, 205 F.3d 356, 358-59 n. 5 (8th
Cir. 2000). The Commissioner must prove not only that the claimant’s RFC will allow the
claimant to make an adjustment to other work, but also that the other work exists in significant
numbers in the national economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004);
20 C.F.R. § 416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists
in significant numbers in the national economy, then the Commissioner will find the claimant is
not disabled. If the claimant cannot make an adjustment to other work, then the Commissioner
will find that the claimant is disabled. 20 C.F.R. § 416.920(a)(4)(v). At Step Five, even though
the burden of production shifts to the Commissioner, the burden of persuasion to prove disability
remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
The evaluation process for mental impairments is set forth in 20 C.F.R. §§ 404.1520a,
416.920a. The first step requires the Commissioner to “record the pertinent signs, symptoms,
findings, functional limitations, and effects of treatment” in the case record to assist in the
determination of whether a mental impairment exists. See 20 C.F.R. §§ 404.1520a(b)(1),
416.920a(b)(1). If it is determined that a mental impairment exists, the Commissioner must
indicate whether medical findings “especially relevant to the ability to work are present or
absent.” 20 C.F.R. §§ 404.1520a(b)(2), 416.920a(b)(2). The Commissioner must then rate the
degree of functional loss resulting from the impairments. See 20 C.F.R. §§ 404.1520a(b)(3),
416.920a(b)(3). Functional loss is rated on a scale that ranges from no limitation to a level of
severity which is incompatible with the ability to perform work-related activities. See id. Next,
the Commissioner must determine the severity of the impairment based on those ratings. See 20
C.F.R. §§ 404.1520a(c), 416.920a(c). If the impairment is severe, the Commissioner must
determine if it meets or equals a listed mental disorder. See 20 C.F.R. §§ 404.1520a(c)(2),
416.920a(c)(2). This is completed by comparing the presence of medical findings and the rating
of functional loss against the paragraph A and B criteria of the Listing of the appropriate mental
disorders. See id. If there is a severe impairment, but the impairment does not meet or equal
the listings, then the Commissioner must prepare an RFC assessment. See 20 C.F.R. §§
404.1520a(c)(3), 416.920a(c)(3).
IV. Discussion
Summers argues that the ALJ erred in failing to identify his autism spectrum disorder1
(“ASD”) as a severe impairment, failing to address the listing for ASD, and in evaluating his
mental2 limitations when determining his RFC. The undersigned will discuss Summers’ claims
in turn.
1. Severity Determination
At step two of the sequential evaluation, the ALJ found that Summers’ ADHD and social
anxiety disorder were severe impairments, but did not include ASD as a severe impairment.
(Tr. 18.) Summers contends that the ALJ’s failure to find ASD as a severe impairment was
reversible error.
Under the Social Security regulations, a severe impairment is “an impairment or
combination of impairments that significantly limits a claimant’s physical or mental ability to
perform basic work activities.” 20 C.F.R. §§ 416.920(c), 416.921. The claimant bears the
1Autism spectrum disorder is a developmental disorder that often interferes with a person’s
ability to communicate with and relate to others. See https://www.webmd.com/brain/autism/
understanding-autism-basics (last visited March 30, 2023).
2Although Summers also alleged the presence of disabling physical impairments, he does not
challenge the ALJ’s findings as to his physical limitations. As such, the Court’s discussion will
be limited to Summers’ mental impairments.
burden of proving that his impairment or combination of impairments are severe. Kirby v.
Astrue, 500 F.3d 705, 707 (8th Cir. 2007) (citing Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir.
2000)).
The ALJ explicitly discussed Summers’ allegation of ASD. He stated that the medical
evidence “does not contain a firm diagnosis of an autism spectrum disorder, including
Asperger’s disorder.” (Tr. 19.) The ALJ explained that Summers underwent neuropsychiatric
testing in November 2019, performed by Laura Nieder, Ph.D. (Tr. 19, 744.) After the
examination, Dr. Nieder stated that Summers “appears to meet the criteria for a diagnosis of
ASD (Asperger’s) of mild severity.” (Tr. 19, 753.) The ALJ noted that Dr. Nieder did not,
however, “confirm the diagnosis,” instead leaving “uncertainty in the diagnosis.” (Tr. 19.) The
ALJ stated that Summers’ neurologist subsequently relied upon Dr. Nieder’s examination when
he stated that Summers had an ASD. Id. The ALJ, therefore, found that ASD and Asperger’s
disorder were considered nonmedically-determinable impairments. Id. He stated that, although
ASD was not affirmatively diagnosed, “the claimant’s difficulties in socialization, memory,
cognition, and attention were considered and accounted for within the residual functional
capacity.” Id.
The ALJ’s evaluation of Summers’ ASD turns on Dr. Nieder’s report. A summary of
Dr. Nieder’s November 14, 2019 neuropsychological assessment is provided below:
Dr. Nieder noted that Summers was 37 years of age and had a history of seizure disorder
that began in 2016. Id. Summers’ mother was present during the interview. Id. Dr. Nieder
indicated that Summers complained of increasing memory difficulties at a February 2019
neurological consultation. Id. Summers also has a lifelong history of ADHD. Id. In recent
years, it “has been suggested that Mr. Summers may have an autism spectrum disorder although
he has not yet had formal assessment.” Id. Summers earned a Bachelor’s degree in Digital
Entertainment & Game Design. (Tr. 745.) He worked various jobs, including clerking at
Target. Id. Most recently, he worked as a machine operator. Id. He was placed on long-term
disability when he began having seizures in 2016. Id. Summers lived with his parents and has
never lived independently. Id. Summers and his mother reported that Summers had
experienced some difficulty with cognition all his life due to his attention problems, although
they believed his memory had worsened over the past few years, after the onset of seizures in
2016. (Tr. 746.) Summers’ mother indicated that Summers forgets to do things around the
house, has difficulty remembering what to buy at the store, occasionally forgets to take his
medications, tends to repeat himself, and has difficulty recalling details from recent
conversations. (Tr. 746.) Summers participated in speech and occupational therapy in late
2017 and early 2018 after developing seizures. Id. He was taught different compensatory
strategies, such as using a memory book. Id. Summers had never been married and had never
had a significant relationship. Id. He did not generally socialize beyond friends he met on
social media. Id. He spends much of his time reading and playing video games. Id.
Summers also helps his mother with homework associated with earning her GED. Id.
Summers’ mother reported Summers tends to work better by himself, as he does not relate well
to others. Id. Summers was independent in all self-care activities, although he may forget to
shave at times. Id. He is able to cook simple meals, care for his space, and care for his two
dogs and lizard. (Tr. 747.)
On examination, Summers was casually dressed and appropriately groomed. Id. He
evidenced the following autistic spectrum features: poor eye contact, interruptions when
listening, and decreased awareness of social cues. Id. His speech was spontaneous but notable
for stuttering at times. Id. Summers had difficulty sustaining his attention on examination, was
fidgety, and evidenced impulsivity at times. Id. He was observed to focus on unimportant
details at times (such as straightening task materials), rather than more important factors (such as
speed on timed tasks). Id. He was able to comprehend simple task instructions without
difficulty, was oriented to temporal and spatial information, tolerated frustration well, and his
thought process was typically goal-directed. Id. Summers appeared to have poor self-
confidence, but overall put forth adequate effort. Id.
Dr. Nieder administered testing, which revealed average intellectual functioning with a
neurocognitive profile suggestive of subtle to mild cognitive inefficiencies. (Tr. 752.)
Summers had difficulties in mental processing speed, working memory, confrontation naming,
math computation, and susceptibility to intrusion errors. Id. Summers was generally able to
learn and retain information at normal levels, but these abilities were limited when he was
anxious. Id. Dr. Nieder stated that it appears that Summers’ subjective complaints of declining
memory was actually due to attention difficulties when information is being presented. Id. She
further indicated that Summers’ emotional state may be playing a larger role in his subjective
complaints. (Tr. 753.) Dr. Nieder explained that Summers’ emotional state appears to have
been primarily affected by his loss of employment and reduced independence since the onset of
his seizures. Id. Summers retained “significant cognitive strengths in general fund of
information, reasoning, novel problem-solving, and visuoconstruction skills.” Id. Dr. Nieder
stated that, although the purpose of her evaluation was to delineate Summers’ current level of
neurocognitive functioning, “Mr. Summers appears to meet criteria for a diagnosis of Autism
Spectrum Disorder (Asperger’s) of mild severity.” Id. She explained that Summers
experiences difficulty with social communication and interpretation, and appears to have
restricted interests and routines. Id. Given Summers’ “lifelong difficulties in these areas,” Dr.
Nieder stated that Summers was “likely eligible” for services through the Missouri Division of
Developmental Disabilities. Id.
Summers saw treating neurologist Dr. Snyder for follow-up on December 14, 2020, at
which time he noted that Dr. Nieder’s neuropsychology testing revealed Summers “has had life-
long autism spectrum disorder, most likely Asperger’s.” (Tr. 846.) Dr. Snyder included
“Asperger syndrome” as a diagnosis. (Tr. 847.)
Summers argues that Dr. Nieder only used the word “appears” in her diagnosis because
she lacked information regarding Summers’ longitudinal history. (Tr. 768.) He contends that
the ALJ erred in finding ASD non-severe, which affected his evaluation of the remainder of his
analysis.
Defendant argues that the ALJ’s failure to find ASD a severe impairment did not impact
the evaluation of the remainder of the case. Defendant states that Plaintiff’s argument is “one of
semantics rather than substance,” as the ALJ found Plaintiff had the severe mental impairments
of social anxiety and ADHD and the “symptoms stemming from these conditions overlap with
those caused by [ASD].” (Doc. 20 at 5.)
Plaintiff responds that Defendant’s argument “that there is merely a ‘semantic’ difference
between autism and ‘social anxiety and ADD’” is an “extraordinary assertion” for which there is
no medical support. (Doc. 21 at 3.) Plaintiff further contends that, because the ALJ did not cite
this rationale in his decision, Defendant’s argument violates the Chenery doctrine.3
3The Chenery doctrine originated in SEC v. Chenery, 318 U.S. 80 (1943). It stands for the
proposition that “a reviewing court may not uphold an agency decision based on reasons not
articulated by the agency itself in its decision.” HealthEast Bethesda Lutheran Hosp. and
Rehabilitation Ctr. v. Shalala, 164 F.3d 415, 418 (8th Cir. 1998) (quoting Mayo v. Schiltgen, 921
F.2d 177, 179 (8th Cir. 1990)).
Eighth Circuit “precedent indicates that the failure to list a specific impairment at step
two is not an error unless the impairment is ‘separate and apart’ from the other listed
impairments.” Gregory v. Comm’r, Soc. Sec. Admin., 742 F. App’x 152, 156 (8th Cir. 2018)
(quoting Gragg v. Astrue, 615 F.3d 932, 939 (8th Cir. 2010)).
Additionally, a failure to find an impairment severe at step two “may be harmless where
the ALJ continues with the sequential evaluation process and considers all impairments, both
severe and non-severe.” Haley v. Colvin, No. 2:13CV29 CDP, 2014 WL 117575, at *10 (E.D.
Mo. Jan. 13, 2014) (citing Lorence v. Astrue, 691 F. Supp. 2d 1008, 1028 (D. Minn. 2010); see
also Weed v. Saul, No. 4:18-CV-001192-SPM, 2019 WL 4451259, at *4 (E.D. Mo. Sept. 17,
2019) (ALJ’s error in failing to consider sleep apnea at step two harmless because ALJ
considered all of plaintiff's symptoms, including those associated with sleep apnea, which
claimant testified overlapped entirely with her symptoms from fibromyalgia, which the ALJ did
consider); Spainhour vy. Astrue, No. 11-1056-SSA-CV-W-MIJIW, 2012 WL 5362232, at *3 (W.D.
Mo. Oct. 30, 2012) (“[E]ven if the ALJ erred in not finding plaintiff's shoulder injury and
depression to be severe impairments at step 2, such error was harmless because the ALJ clearly
considered all of plaintiffs limitations severe and nonsevere in determining plaintiff's RFC.”);
Givans v. Astrue, No. 4:10-CV-417-CDP, 2012 WL 1060123, at *17 (E.D. Mo. March 29, 2012)
(holding that even if the ALJ erred in failing to find one of the plaintiff's mental impairments to
be severe, the error was harmless because the ALJ found other severe impairments and
considered both those impairments and the plaintiff's non-severe impairments when determining
the RFC).
Page 14 of 25
First, Plaintiff misstates Defendant’s argument. Defendant does not suggest that there is
merely a semantic difference between the disorders of ASD, ADHD, and social anxiety. Rather,
Defendant suggests that the ALJ’s failure to find ASD a severe impairment was not impactful
because the ALJ still considered Plaintiff’s ASD symptoms in assessing his RFC. The ALJ
specifically stated that, although ASD was not “affirmatively diagnosed, the claimant’s
difficulties in socialization, memory, cognition, and attention were considered and accounted for
within the residual functional capacity.” (Tr. 19.) As such, the Chenery doctrine is not
implicated.
Second, there is support for the ALJ’s finding that Dr. Nieder did not affirmatively
diagnose Summers with ASD. As the ALJ noted, Dr. Nieder’s statement that Summers
“appears to meet criteria” for ASD, however, “did not confirm the diagnosis.” (Tr. 19.) Dr.
Nieder also indicated that the purpose of her evaluation was to assess Summers’ neurocognitive
functioning rather than assess for ASD. (Tr. 753.) Dr. Snyder then relied upon Dr. Nieder’s
alleged diagnosis in subsequently assessing Summers with Asperger’s syndrome.
Further, even if the ALJ erred in failing to include ASD as a severe impairment, this error
was harmless. Notably, to the extent Dr. Nieder intended to diagnose Summers with ASD, she
found that the disorder was “of mild severity.” Id. As discussed below, the ALJ adequately
considered all of Summers’ ASD symptoms as set out by Dr. Nieder when assessing whether he
met a listing and in determining his RFC.
Accordingly, the ALJ’s failure to include ASD as a severe impairment at step two was
not reversible error.
2. Listing
Summers next argues that the ALJ erred in failing to properly consider whether Summers
met or equaled listing 12.10, the listing for autism spectrum disorders.
After consideration of severe impairments at step two, the ALJ is to advance to step three
and determine whether the impairments meet the criteria of any listings. “If the impairments
meet or equal one of the listed impairments [in 20 C.F.R. pt. 404, subpt. P, app. 1], the claimant
is conclusively presumed to be disabled.” Bowen v. Yuckert, 482 U.S. 137, 141 (1987). “To
meet a listing, a claimant must show that he or she meets all of the criteria for the listed
impairment.” Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014).
Listing 12.10 addresses autism spectrum disorders, which are “[c]haracterized by
qualitative deficits in the development of reciprocal social interaction, verbal and nonverbal
communication skills, and symbolic or imaginative activity; restricted repetitive and stereotyped
patterns of behavior, interests and activities; and stagnation of development or loss of acquired
skills early in life.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00B8. Listing 12.10 is met when
both the A and B criteria are satisfied. Id. at §12.10. The A criteria requires medical
documentation of both of the following: (1) qualitative deficits in verbal communication,
nonverbal communication, and social interaction; and (2) significantly restricted, repetitive
patterns of behavior, interests, or activities. Id. The B criteria is satisfied when one extreme
limitation or two marked limitations of the following are present:
1. Understand, remember, or apply information;
2. Interact with others;
3. Concentrate, persist, or maintain pace;
4. Adapt or manage oneself.
Id.
Here, the ALJ found that Summers’ mental impairments did not meet or equal a listed
impairment. (Tr. 19.) The ALJ did not discuss Listing 12.10, but analyzed Listings 12.02 and
12.11, the listings for neurocognitive disorders and neurodevelopmental disorders, respectively.
(Tr. 20-21.) Regardless, to satisfy the paragraph B criteria in Listings 12.02, 12.11, and 12.10,
the mental impairments must result in at least one extreme or two marked limitations including
“understanding, remembering or applying information; interacting with others; concentrating,
persisting, or maintaining pace; or adapting or managing themselves.” 20 C.F.R. pt. 404, subpt.
P, app. 1, § 12.10.
In the area of understanding, remembering, or applying information, the ALJ found
Summers had a moderate limitation. (Tr. 20.) He explained that Summers reported issues with
short-term memory, but his neuropsychiatric examination showed only subtle to mild cognitive
inefficiencies. Id. The ALJ noted that Dr. Nieder felt that Summers’ subjective complaints of
memory decline were due to his attention deficits. Id. Summers does not appear to challenge
this finding.
The ALJ next found that Summers had marked limitation in his ability to interact with
others. Id. The ALJ cited findings on examination of decreased eye contact, some neurogenic
stuttering, word-finding difficulty, interrupting others, abnormal speech patterns, decreased
social cues, and decreased self-confidence. (Tr. 20, 393, 680, 763.) Additionally, Summers
reported being uncomfortable with phone conversations and in social situations, had no history
of significant romantic relationships or friendships, and had difficulties working in a group. Id.
The ALJ noted that Summers also reported that he spent time with family and friends, used
social media, gamed with others, had no problems getting along with others, and had no
problems getting along with authority figures. Id. Summers does not dispute the presence of
marked limitations in his ability to interact with others.
With regard to Summers’ ability to adapt or manage himself, the ALJ found Summers
had a mild limitation. (Tr. 21.) The ALJ explained that Summers reported that he cared for his
dogs, had no issues with his personal care, prepared simple meals, performed household chores,
was able to drive and go out alone, shopped for personal and household items, reported
numerous hobbies and interests including gaming and building plastic models, handled stress
well, and had no issues with changes in routine. Id. Summers does not object to this finding.
Finally, the ALJ found that Summers had moderate limitation in his ability to concentrate
persist, or maintain pace. (Tr. 20.) The ALJ pointed out that Summers complained of
difficulty completing tasks, yet he reported he could play video games or use a computer for two
to three hours at a time. Id. In his neuropsychiatric examination, Summers had difficulty
sustaining attention, was fidgety during examination, focused on some unimportant details rather
than more important factors, and had attention deficits when information was presented that
impacted his memory. (Tr. 21, 747.) The ALJ also discussed findings from a November 2019
psychological evaluation performed by Thomas Spencer, Psy.D. (Tr. 678-80.) The ALJ noted
that Summers reported difficulties staying on task and multi-tasking, was fidgety and restless
during the examination, completed serial 3s slowly with no errors, and completed simple
arithmetic. (Tr. 20, 678-79.) Dr. Spencer expressed the opinion that Summers has mild to
moderate impairment in his ability to learn, recall, and use information and to consistently stay
on task. (Tr. 680.) The ALJ concluded that Summers has a moderate limitation in this area
“due to difficulties completing tasks and focusing, fidgeting, restlessness, and a tendency to
focus on unimportant details.” (Tr. 21.)
Summers argues that the ALJ erred in evaluating his limitation in concentration,
persistence, and pace by emphasizing Summers’ ability to play video games and failing to
consider the entire record. He specifically contends that the ALJ failed to consider a vocational
rehabilitation evaluation that was performed by Delores E. Gonzalez, M.Ed., L.P.C., in August
2019. (Tr. 311-35.) Summers notes that Ms. Gonzalez found that he “displayed problems with
focus, memory, and concentration,” was tangential, “displayed an abnormal affect and behavior,”
“seemed very immature,” “had significant word finding problems,” and “had to think for a few
minutes before answering questions.” (Tr. 312.) Ms. Gonzalez concluded that Summers’
impairments “remain significant despite therapy and regular medical attention and treatment and
have continued to affect his ability to perform basic work-related functions.” (Tr. 335.)
Defendant responds that the ALJ properly considered the record as a whole, including
treatment records and Summers’ reports of daily activities, when finding moderate limitations in
concentration, persistence, or pace. Regarding Ms. Gonzalez’s opinion, Defendant argues that
the ALJ was aware of her opinion, but the regulations do not require that the ALJ discuss the
opinion of non-medical sources.
The undersigned finds that the ALJ’s determination that Summers has moderate
limitations in concentration, persistence, or pace is supported by substantial evidence. The ALJ
cited findings on examination of Drs. Nieder and Spencer, as well as Summers’ testimony
regarding his daily activities. Summers’ ability to play video games for two to three hours at a
time is one factor supporting the ALJ’s determination that he has moderate, rather than marked,
limitations in his ability to concentrate. See Eich v. Saul, No. 4:19CV1686 HEA, 2020 WL
7078684, at *6 (E.D. Mo. Dec. 3, 2020) (observation that claimant's “concentration was good”
was supported by evidence that claimant played video games); Vogler v. Saul, No. 1:20CV01
CDP, 2020 WL 6287412, at *7 (E.D. Mo. Oct. 27, 2020) (claimant's ability to play video games
and watch movies supported ALJ's conclusion that claimant was only mildly limited in
concentration, persistence, or pace); Hewitt v. Colvin, No. 2:13CV104 ACL, 2015 WL 1286309,
at *11, 13 (Mar. 20, 2015) (playing video games requires a level of concentration).
It is true the ALJ did not discuss Ms. Gonzalez’s opinion in his opinion. As Defendant
points out, the ALJ was aware of Ms. Gonzalez’s report, as he questioned Summers about her
findings at the hearing. (Tr. 52.) The ALJ is not required to discuss every piece of evidence in
the record, and his failure to cite specific evidence does not indicate that he did not consider it.
Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010). Moreover, Ms. Gonzalez, as a licensed
professional counselor, is not a “medical source” whose opinion the ALJ is required to discuss.
See 20 C.F.R. §§ 404.1502,1502c(d). 416.902c(d) (“We are not required to articulate how we
considered evidence from nonmedical sources using the requirements in paragraphs (a)-(c) in
this section”).
In sum, the ALJ’s determination at step 3 that Summers’ mental impairments do not
satisfy the paragraph B criteria because they do not cause at least two marked limitations or one
extreme limitation is supported by substantial evidence. Thus, any error resulting from the
ALJ’s failure to consider listing 12.10 is harmless.
3. RFC
Summers argues that the ALJ’s RFC determination is erroneous because he failed to
properly evaluate Summers’ limitations in social functioning. He contends that the record
supports greater limitation in his contact with co-workers and supervisors.
Defendant argues that the ALJ’s RFC determination is supported by substantial evidence,
and Summers’ argument merely provides an alternative view of the evidence.
A claimant’s RFC is the most he can do despite his physical or mental limitations.
Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004). It is the ALJ’s responsibility to
determine a claimant’s RFC by evaluating all medical and non-medical evidence of record. 20
C.F.R. §§ 404.1545, 404.1546, 416.945, 416.946. Some medical evidence must support the
ALJ’s RFC finding, but there is no requirement that the evidence take the form of a specific
medical opinion from a claimant’s physician. Myers v. Colvin, 721 F.3d 521, 526-27 (8th Cir.
2013); Perks v. Astrue, 687 F.3d 1086, 1092-93 (8th Cir. 2012); Martise v. Astrue, 641 F.3d 909,
927 (8th Cir. 2011). “The determination of a claimant’s RFC during an administrative hearing
is the ALJ’s sole responsibility and is distinct from a medical source’s opinion.” Wallenbrock v.
Saul, No. 4:20-CV-00182-SRC, 2021 WL 1143908, at *6 (E.D. Mo. Mar. 25, 2021) (citing
Kamann v. Colvin, 721 F.3d 945, 950-51 (8th Cir. 2013)).
The ALJ found that Summers had the following mental limitations:
He is limited to simple, routine, repetitive tasks with occasional,
simple work-related decisions. He is limited to jobs that can be
learned by demonstration. He should work with things more than
people. He can tolerate minimal changes in work setting or
routine, with no paced production quotas. Public contact should
be incidental to work tasks. He can have occasional contact with
coworkers, no tandem tasks, and occasional supervision.
(Tr. 22.)
As previously discussed, the ALJ found at step three that Summers had a marked
limitation in his ability to get along with others. (Tr. 20.) In determining Summers’ RFC, the
ALJ again discussed Summers’ statements about his social limitations and the findings of
various medical professionals on examination. For example, the ALJ cited Summers’ testimony
that he spent time with family and friends, got along well with others, had no problems getting
along with authority figures, and got along well with his supervisor at his last job; but he
stuttered “all the time,” had anxiety, and did not often socialize with friends in person. (Tr. 22-
23, 348, 60-61.) Summers reported to an occupational therapist that he feels uncomfortable
with phone conversations. (Tr. 24, 390.) Therapy records noted neurogenic stuttering, word-
finding difficulties, and decreased eye contact. (Tr. 24, 391-93.) The ALJ discussed Dr.
Nieder’s report that Summers had difficulty maintaining conversation and did not enjoy social
chitchat, exhibited poor eye contact, interrupted when listening, had decreased awareness of
social cues, stuttered at times, and had poor self-confidence. (Tr. 25, 763.) He also noted Dr.
Spencer’s findings that Summers seemed anxious, fidgeted, stuttered when he spoke, had
intermittent eye contact, had few friends, and had limited communication with others; but had a
decent working knowledge of social norms and had no language impairment. (Tr. 25, 680.)
Dr. Spencer diagnosed a social anxiety disorder. Id.
The ALJ next discussed the medical opinion evidence. He noted James Morgan, Ph.D.
offered opinions in a prior administrative determination on December 3, 2019. (Tr. 27, 102.)
Dr. Morgan found Summers had moderate limitations in interacting with others, and in
maintaining concentration, persistence, and pace; and mild limitations in the other areas. Id.
The ALJ found Dr. Morgan’s opinion that Summers had moderate limitations in maintaining
concentration, persistence, and pace persuasive, but found that the medical evidence supports
greater limitations in his social functioning due to poor eye contact, stuttering, word-finding
issues, a tendency to interrupt others, and unease in social situations, which are consistent with
marked limitations. (Tr. 27.)
The ALJ discussed the opinions provided by Dr. Nieder following her neuropsychiatric
examination. (Tr. 28.) Dr. Nieder found that Summers was capable of managing household
finances, medications, and cooking with occasional recommended observation for accuracy.
(Tr. 28, 753.) She recommended that Summers engage in social activities, and felt he would
benefit from a position that was structured, involved clear routines, and had well-established
expectations. Id. Dr. Nieder believed Summers’ likelihood of success in tasks increased with
routine structure. Id. The ALJ found Dr. Nieder’s statements consistent with the ability to
perform simple, routine work, with a limitation to repetitive work and only occasional simple
work-related decisions that can be learned by demonstration. Id.
Additionally, Dr. Spencer offered opinions after his consultative examination. (Tr. 29,
680.) Dr. Spencer found that Summers had mild to moderate impairment in his ability to learn,
recall, and use information and to consistently stay on task; and moderate to marked impairment
in his ability to relate to and work with others on a consistent basis. (Tr. 680.) Summers could
manage his benefits without assistance. Id. The ALJ found Dr. Spencer’s opinions generally
persuasive, noting that the evidence was consistent with a marked limitation in interacting with
others due to his difficulties with eye contact, stuttering, maintaining a flow of conversation, and
social unease. (Tr. 29.)
Finally, the ALJ considered the opinions offered by occupational therapist Deborah
Turley, OT. (Tr. 29, 393.) On April 22, 2019, Ms. Turley stated that Summers was “currently
not ready to attempt to re-enter the work force,” and that he was “probably better suited socially
to attempt to go back to a job that has minimal customer contact and less co-worker
socialization.” (Tr. 393.) The ALJ stated that Ms. Turley’s opinion that Summers would
benefit from limited customer contact and co-worker socialization is supported by the whole of
the medical evidence, which supports social limitations, social unease, and some difficulties
communicating well with others. (Tr. 29.)
The undersigned finds that the ALJ properly assessed Summers’ social limitations.
Summers argues that there is no support for the ALJ’s finding that he should have only incidental
contact with the public but occasional contact with co-workers and supervisors. He argues that
“[n]one of the evidence of opinions in the file contain this specific limit and it [is] unclear what
the ALJ based this limit upon.” (Doc. 17 at 11.) To the extent Summers suggests that his RFC
should have been determined or confirmed by a medical source, he is mistaken. As stated
above, it is the ALJ’s role to evaluate the record in its entirety, including medical opinions and
testimony, and formulate a claimant’s RFC based on all the relevant, credible evidence of record.
See Perks, 687 F.3d at 1092. This is precisely what the ALJ did in this case.
The ALJ performed an exhaustive review of the medical evidence, Summers’ testimony,
and the medical opinion evidence. Based on this evidence, the ALJ found Summers had marked
impairment in his social functioning. As a result, he imposed extensive limitations in Summers’
ability to interact with others in the workplace, including a restriction to working “with things
more than people.” (Tr. 22.) The ALJ limited Summers to public contact that is incidental to
work tasks and occasional contact with co-workers, “no tandem tasks, and occasional
supervision.” Id. The preclusion of tandem tasks was included to account for Summers’
testimony that “he preferred to work alone.” (Tr. 30.) Summers argues that there should be no
variance in his ability to interact with co-workers and supervisors compared to his ability to
interact with the public, but the variance found by the ALJ in these areas is miniscule. The ALJ
imposed extensive limitations in both areas, commensurate with his finding of marked
impairment in social functioning. The ALJ’s limitations are supported by the opinions of Drs.
Nieder and Spencer, and more restrictive than the opinion of the prior administrative finding by
Dr. Morgan.
The ALJ’s mental RFC determination is supported by substantial evidence on the record
as a whole. In his discretion, the ALJ made an RFC finding that did not precisely reflect any of
the medical opinions of record. See Martise, 641 F.3d at 927 (ALJ is not required to rely
entirely on one particular physician’s opinion or choose between opinions). The RFC is
consistent with or more restrictive than all of the medical opinion evidence and prior
administrative findings. Even though the ALJ did not find ASD as a severe impairment, he
indicated that “the treatment records clearly support some cognitive limitations that were also
addressed with the residual functional capacity.” (Tr. 30.) He limited Summers to simple,
routine repetitive work with only occasional simple, work-related decisions, and no paced
production quotas, to account for his cognitive limitations, memory issues, and difficulty
concentrating. (Tr. 30.) The mental RFC formulated by the ALJ fully considered and
accounted for Summers’ mental functional limitations.
Summers points to other evidence in the record that is supportive of his application for
benefits, but he has failed to demonstrate that the ALJ’s decision was outside the available “zone
of choice.”
Accordingly, Judgment will be entered separately in favor of Defendant in accordance
with this Memorandum.
/s/ Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 30th day of March, 2023.