Jessie v. O'Malley

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

KAREN J., )

)

Plaintiff, )

)

v. ) No. 2:22 CV 75 JMB

)

MARTIN J. O’MALLEY, )

Commissioner of Social Security )

Administration, )

)

Defendant. )

MEMORANDUM AND ORDER

This matter is before the Court for review of an adverse ruling by the Social Security

Administration. The parties have consented to the jurisdiction of the undersigned United States

Magistrate Judge pursuant to 28 U.S.C. § 636(c).

I. Procedural History

On July 10, 2020, Plaintiff Karen J. filed an application for disability benefits, alleging

that her disability began on February 29, 2020 (Tr. 193) because of severe anxiety, depression,

COPD, sleep apnea, and lung damage (Tr. 205). Plaintiff’s claims were denied upon initial

consideration and reconsideration (Tr. 70-89; 91-116). Plaintiff then requested a hearing before

an ALJ (Tr. 134). Plaintiff appeared at the hearing (with counsel) on December 15, 2021, and

testified concerning the nature of her disability, her functional limitations, and her past work (Tr.

35-69). The ALJ also heard testimony from Karen Terrill, a vocational expert (“VE”) (Tr. 35-

69). After considering Plaintiff’s testimony and the VE’s testimony, and after reviewing the

other relevant evidence of record, the ALJ issued a decision on December 28, 2021, finding that

Plaintiff was not disabled, and therefore denying benefits (Tr. 14-32). Plaintiff sought review of

the ALJ’s decision before the Appeals Council of the Social Security Administration, which

denied her claim on September 19, 2022 (Tr. 1-7). Accordingly, the decision of the ALJ is the

final decision of the Commissioner. Plaintiff has therefore exhausted her administrative

remedies, and her appeal is properly before this Court. See 42 U.S.C. § 405(g).

II. Evidence Before the ALJ

A. Disability and Function Reports and Hearing Testimony

In an August, 2020 Function Report, Plaintiff stated that her ability to work is affected by

tiredness and breathlessness in addition to anxiety (Tr. 214). She has difficulty with self-help

and needs assistance remembering to take her medications (Tr. 215-216). She does not cook

because of lack of energy. She does household chores but needs to stop and rest several times

and she shops less than once a month (Tr. 216-217). She only goes out alone if necessary and

generally watches T.V. (Tr. 217). Her anxiety causes panic attacks in social situations, and she

does not like being around people (Tr. 218). She has difficulty in all physical functional areas

except reaching and can lift no more than ten pounds (Tr. 219). Plaintiff also indicates that she

has difficulty with paying attention, following written instructions, and following spoken

instructions; she also does not handle stress or change well (Tr. 219-220).

In a subsequent Function Report dated January, 2021, Plaintiff reiterated her fatigue and

breathlessness in addition to anxiety and depression (Tr. 243). She also reiterated her activities

of daily living, her functional and mental limitations, and her lack of interaction with others (Tr.

246-250).

Travis Brobst, Plaintiff’s son, provided a letter in which he states that Plaintiff suffers

with anxiety and COPD that cause her to become overwhelmed, avoid people, and have trouble

scheduling appointments (Tr. 279). He further indicates that her conditions have worsened over

the past couple of years (Tr. 279).

Plaintiff testified that she is a married fifty-three year old who lives in a house with her

husband than two adult sons (Tr. 43). She graduated high school and attended “a bit” of college

(Tr. 44). She stopped working in February 2020 because she could not physically or mentally

handle work (Tr. 44).

In particular, Plaintiff testified that she can no longer work because of COPD and anxiety

(Tr. 48). These conditions cause her to stay in bed and sleep, make her feel unhappy and as if a

“big cloud [is] looming” over her, and make her feel like a burden on her family (Tr. 49). She

stated that she has difficulty going up stairs due to trouble breathing, she finds standing, walking,

and lifting challenging because of fatigue and breathlessness, she cannot bend forward because

of dizziness, she cannot be around fumes/chemicals like chlorine because she starts coughing

uncontrollably, and she has trouble breathing in hot, humid, and cold conditions (Tr. 51, 55).

She needs to lay down and nap during the day for two hours once or twice a day, three or four

times a week (Tr. 52). Her medications also make her jittery and sleepy (Tr. 52-53). She does

breathing treatments up to three time a day for fifteen to twenty minutes (Tr. 54). She has

trouble sleeping because of a racing mind and trouble breathing/coughing (Tr. 56). Her anxiety

causes her to stay indoors and avoid people (Tr. 57). Her depression causes crying spells and

unhappiness (Tr. 57).

As to her daily living, Plaintiff testified that she smokes about two cigarettes a day since

the last month prior to her testimony (at which prior time she was smoking 5 times a day) (Tr.

58). She does not belong to any social groups (Tr. 60). She does laundry with her husband’s

help (which is in the basement), straightens up the house and dishes but her husband cooks (Tr.

60)

The VE testified that Plaintiff’s past work as a sanitation engineer is an unskilled medium

occupation but that it was performed at the heavy level and that her past work as a hand packager

is medium work but performed at a light level (Tr. 60-61). The VE was asked to determine

whether someone of Plaintiff’s age, and with her education, work experience, and specific

functional limitations, would be able to perform any of Plaintiff’s past work. These functional

limitations include the capacity to occasionally lift twenty pounds and frequently lift ten pounds;

stand and/or walk six out of an eight-hour workday and sit up to six out of an eight-hour

workday; occasionally climb ramps or stairs; never climb ladders, ropes, or scaffolds;

occasionally stoop, kneel, crouch, and crawl; and, who would avoid extreme cold weather,

extreme heat, extreme humidity and unprotected heights; and be exposed to no more than

occasional irritants such as fumes, odors, dust, gases and poorly ventilated areas (Tr. 61-62).

However, the hypothetical person could concentrate, persist, and remain on task and pace to

perform simple, routine, and repetitive tasks that may involve multiple, noncomplex, simple,

routine, and repetitive steps, tasks, or instructions (Tr. 62). Finally, the individual would have no

public interactions and only occasional interaction with coworkers and supervisors (Tr. 63). The

VE testified that such a hypothetical person would not be able to do Plaintiff’s past relevant work

(Tr. 63). However, such a person could do a full range of light, unskilled jobs such as photocopy

machine operator, shipping and receiving weigher, and routing clerk (Tr. 63-64). These jobs

would be available if the hypothetical were limited to standing/walking for no more than four

hours in an eight hour work day (Tr. 64). And these jobs would be available if the hypothetical

person could reach in all directions bilaterally (Tr. 67). The VE further testified that an employer

would permit no more than one sick day a month; but would offer a ten to fifteen minute break

and a thirty minute to one hour lunch break (Tr. 64).

When questioned further, the VE indicated that if standing/walking was limited to two

hours in an eight-hour workday, light work would be precluded (Tr. 65). And, an employee can

only be off-task for five to ten percent of the work day; additional breaks would preclude

employment as would leaving work early (Tr. 65-66).

B. Medical and Opinion Evidence

The administrative record before this Court includes medical records covering Plaintiff's

health treatment from March 2019 through November 2021 in addition to medical opinions as to

Plaintiff’s functional capacity. Plaintiff focuses on work limitations caused by COPD and

anxiety (which comprises a majority of the medical records). As such, the Court will focus on

these areas in discussing the medical record.

1. Medical Treatment notes

In the months leading up to March 2019, Plaintiff was doing “very well” managing her

COPD (Tr. 299). However, when she presented at a follow up visit with Physician Assistant

Taylor Wesley (who appears to be her primary caregiver), she complained of upper respiratory

issues including congestion, cough, and “mildly worsened shortness of breath” – symptoms

similar to her husband’s upper respiratory infection (Tr. 299). Notes indicate that Plaintiff was

also suffering from an upper respiratory infection which was exacerbating her COPD (Tr. 300).

An inhaled corticosteroid was prescribed for 2-4 weeks and chest x-rays were taken – she was

told follow up in 6 months (Tr. 300). Two subsequent visits with PA Wesley on April 4, 2019

and June 27, 2019 primarily concerned high blood pressure but Plaintiff’s shortness of breath

was noted and she was prescribed Lexapro for anxiety (Tr. 295-297).1

On January 30, 2020, Plaintiff complained of waking up at night to catch her breath and

increased anxiety but there was no shortness of breath (Tr. 293). At that visit, a sleep study was

ordered, she was told to stop Lexapro, and she was prescribed Fluoxethine Hydrochloride and

prednisone for COPD (being used in addition to inhalers) (Tr. 294).

Plaintiff saw PA Wesley again on July 14, 2020 to, oddly, “establish care” (Tr. 320). She

presented with general anxiety that was not responding to Prozac (Tr. 320). While she was

positive for cough, fatigue, vomiting, agitation and other psychiatric factors, she was negative for

other physical ailments, had a normal mood and affect, and normal breath sounds (Tr. 320-321).

She was directed to seek counseling and medication therapy, and Prozac was replaced with

Trintellix (Tr. 322). At her next visit, Plaintiff complained of shortness of breath and coughing

that briefly improved with use of an inhaler, and no changes to her level of anxiety (Tr. 310).

She was found to have no respiratory distress, normal judgment, cognition, memory, and

behavior but was positive for psychiatric issues including agitation, decreased concentration, and

nervousness/anxiousness (Tr. 310). Trintellix was increased and it is noted that she would be

seeing a counselor in a week (Tr. 311). In addition, because her COPD was not considered well

controlled, a nebulizer was ordered along with a referral to pulmonology (Tr. 312). Plaintiff

followed up with similar concerns on September 8, 2020 (Tr. 360). She was started on Vistral

for panic attacks and directed to continue counseling.

A follow-up with PA Wesley on October 7, 2020 revealed that Plaintiff stopped taking

Trintellex as recommended because it was negatively affecting her sodium levels (Tr. 357). She

1 In between these visits, an echocardiogram was conducted and appears to show normal heart function (Tr. 289-

290).

was again positive for coughing and shortness of breath and anxiety but had no respiratory

distress (Tr. 357). Her mood, attention, affect, and behavior were normal (Tr. 357). She was

started on Latuda for potential bipolar disorder and directed to continue counseling (Tr. 358). A

month later, Plaintiff reported that Latuda made her groggy through the day and that seeing a

counselor resulted in some improvement (Tr. 392). She was directed to take Latuda at night (at

an increased dosage) and encouraged to continue to see her counselor (Tr. 393, 395). It is noted

that she had no new or worsening COPD symptoms (Tr. 397). On January 13, 2021, her mood

was reported as “okay” and it was noted that she switched from Latuda to Lamictal (Tr. 423).

She again was not in respiratory distress and had a generally normal physical and mental

examination except that she was anxious, had fatigue, and was wheezing (Tr. 423-424).

Lamictal (which was reported as well tolerated) was increased and she was told to continue

counseling (Tr. 424, 440). However, by March 1, 2021 PA Wesley indicated that her mood was

not well controlled with medication without side effects (Tr. 433). As such, he switched her

medication to Vraylar (Tr. 433). At a follow up appointment in April, her symptoms were

improved with no side-effects (Tr. 459). Her physical and psychological exams were normal –

significantly, no breathing abnormalities or anxiety were noted. Her treatment plans were

continued (Tr. 460).

In July 2021, she reported feeling stressed and anxious due to her current situation but

that generally her mood was more stable (Tr. 510). Her examination was mostly normal with no

breathing abnormalities or fatigue noted (Tr. 511-512). Vraylar was increased (Tr. 512).

As noted above, PA Wesley referred Plaintiff to pulmonology and counseling. On

September 18, 2020, Plaintiff established care with Dr. Mohammad Jarbou, a pulmonologist, for

COPD (Tr. 341). A review of physical and mental systems was generally normal but she had

decreased breath sounds (Tr. 341). Dr. Jarbou informed Plaintiff that COPD is an “incurable

disease” the progression of which can be slowed by quitting smoking, getting a flu shot every

year, avoiding cough medicines, and avoiding triggers such as dust and smoke (Tr. 343). He

noted that she had moderate to severe COPD and that the “most important step in her treatment”

was to quit smoking with a treatment regimen that included an inhaler and additional diagnostic

testing including a sleep study (Tr. 343). In January 2021, Plaintiff reported no improvement

with Trelegy, but she was still smoking (Tr. 414). Trelegy was continued along with diagnostic

testing with similar instruction to quit smoking (Tr. 416). Her COPD symptoms were considered

“fairly well controlled” on February 25, 2021 (Tr. 434).

In April, 2021, she was referred to Dr. Khulood Ahmed (gastroenterologist) to address

possible GERD that may be causing shortness of breath (Tr. 449). At that appointment she was

generally feeling well, alert, and cooperative, and in no acute distress but had coughing,

shortness of breath and wheezing, anxiety and depression (Tr. 450-451). Dr. Ahmed ordered an

esophagogastroduodenoscopy (EGD) for further evaluation (Tr. 452).

In August, 2021, she was examined by nurse practitioner Johnathan Barnes upon referral

by NP Wesley for COPD (Tr. 495). She was directed to continue Trelegy but to stop using a

Budesonide nebulizer (as explained -- “should ideally not need dual ICS therapy”) and referred

to pulmonary rehab (Tr. 497). On that day she was diagnosed with moderately severe

obstructive lung disease (as also found by Dr. Jarbou) (Tr. 497). She followed up on October 14,

2021 (Tr. 477). NP Barnes indicated that she was in no distress, that she was using Trelegy and

a nebulizer daily, and that she started Chantix for smoking cessation (Tr. 478). Her course of

treatment – which included exercise and smoking cessation -- was continued and Daliresp was

added to address mild exacerbations (Tr. 479).

In between her appointments with NP Barnes, she again saw NP Wesley for an acute

respiratory condition in September, 2021. On October, 18 2021, she also saw NP Wesley for

anxiety which she indicated was poorly controlled and resulted in difficulty sleeping (Tr. 482).

She was started on Trazadone to address sleeplessness (Tr. 483).

On August 10, 2020, Plaintiff established care with Johnathan D. Morgans, a counselor,

as suggested by PA Wesley, and she attended monthly counseling sessions through November,

2021 (Tr.401-411, 472-476). During those sessions, Plaintiff discussed her anxiety, stressors,

medications and their effects, and smoking. At an October 5, 2020 session, she was diagnosed

with PTSD, agoraphobia with panic attacks and bipolar II disorder (for which PA Wesley started

her on Latuda) (Tr. 408). Throughout 2020 and into January, 2021, there was “no change” in her

progress. However, at the February 1, 2021 sessions, Mr. Morgans noted that she had

“significant regression,” or “regression” that continued through the year, with two sessions

showing “no change” and one session (in March, 2021) showing “some progress.” Throughout

these sessions, Plaintiff was directed to rate her moods and journal, use breathing, exercise,

family interactions, and “healthy distractions” to reduce stressors, and to stop smoking. As

noted above, she was prescribed Vraylar in March 2021 and dosage was increased in July 2021

but no other interventions were ordered to manage her anxiety.

2. Medical Opinions

In a November 11, 2021 Opinion, NP Barnes stated that Plaintiff’s prognosis was fair and

that the symptoms of her COPD include coughing and shortness of breath with walking (Tr.

514). He indicated that clinical data support this impairment including a pulmonary function test

and chest xray taken on August 11, 2021. He further indicated that she is on medication and that

there are no reported side effects. As to her functional limitations, he indicated that she can sit

for four hours and stand for less than two hours in a typical work day; she needs at-will shifting

positions, 3-4 breaks of thirty minutes to one hour, and two absences per month; she can never

lift more than 20 pounds and occasionally lift less than 10 pounds; and, she should rarely stoop,

crouch, climb ladders, and climb stairs (Tr. 515- 516). Finally, he opines that her COPD would

be exacerbated and would preclude full time work (Tr. 516).

Plaintiff’s counselor, Mr. Morgans, also provided an opinion on December 9, 2021. Mr.

Morgans’ handwriting is difficult to read. However, his report contains check boxes for various

limitations. Mr. Morgans essentially indicates that Plaintiff has serious limitations, or that she is

unable to meet competitive standards, in various mental abilities and aptitudes, to perform

unskilled work (Tr. 519-520).

Finally, agency doctors Dr. Michael O’Day, Dr. Robert Cottone, and Dr. James Weiss,

provided opinions. Plaintiff does not directly challenge the merits of those opinions.

III. Standard of Review and Legal Framework

To be eligible for disability benefits, plaintiff must prove that she is disabled under the

Act. See Baker v. Sec’y of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992); Pearsall

v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). The Act defines a disability 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 which has lasted or can be

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

and 1382c (a)(3)(A). A claimant will be found to have a disability “only if his physical or

mental impairment or impairments are of such severity that he is not only unable to do his

previous work but cannot, considering his age, education and work experience, engage in any

other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §§

423(d)(2)(A) and 1382c(a)(3)(B); see also Bowen v. Yuckert, 482 U.S. 137, 140 (1987).

The Social Security Administration has established a five-step process for determining

whether a person is disabled. See 20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th

Cir. 2009). Steps one through three require the claimant to prove (1) she is not currently

engaged in substantial gainful activity, (2) she suffers from a severe impairment, and (3) her

disability meets or equals a listed impairment. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir.

2009); see also Bowen, 482 U.S. at 140-42 (explaining the five-step process). If the claimant

does not suffer from a listed impairment or its equivalent, the analysis proceeds to steps four and

five. Pate-Fires, 564 F.3d at 942. “Prior to step four, the ALJ must assess the claimant’s

residual functional capacity (RFC), which is the most a claimant can do despite her limitations.”

Moore, 572 F.3d at 523 (citing 20 C.F.R. § 404.1545(a)(1)). At step four, the ALJ determines

whether claimant can return to her past relevant work, “review[ing] [the claimant’s] [RFC] and

the physical and mental demands of the work [claimant has] done in the past.” 20 C.F.R. §

404.1520(e). The burden at step four remains with the claimant to prove her RFC and establish

that she cannot return to her past relevant work. Moore, 572 F.3d at 523; accord Dukes v.

Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th

Cir. 2005). If the ALJ holds at step four that a claimant cannot return to past relevant work, the

burden shifts at step five to the Administration to establish that the claimant maintains the RFC

to perform a significant number of jobs within the national economy. Banks v. Massanari, 258

F.3d 820, 824 (8th Cir. 2001); see also 20 C.F.R. § 404.1520(f).

The Court’s role on judicial review is to determine whether the ALJ’s finding are

supported by substantial evidence in the record as a whole. Pate-Fires, 564 F.3d at 942.

Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). “[T]he threshold for

such evidentiary sufficiency is not high.” Id. Stated another way, substantial evidence is “less

than a preponderance, but enough that a reasonable mind might accept it as adequate to support a

decision.” Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008); see also Wildman v. Astrue,

964 F.3d 959, 965 (8th Cir. 2010) (same). In determining whether the evidence is substantial,

the Court considers evidence that both supports and detracts from the ALJ’s decision. Cox v.

Astrue, 495 F.3d 614, 617 (8th Cir. 2007).

The Eighth Circuit has repeatedly emphasized that a district court’s review of an ALJ’s

disability determination is intended to be narrow and that courts should “defer heavily to the

findings and conclusions of the Social Security Administration.” Hurd v. Astrue, 621 F.3d 734,

738 (8th Cir. 2010) (quoting Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001)). Despite

this deferential stance, a district court’s review must be “more than an examination of the record

for the existence of substantial evidence in support of the Commissioner’s decision.” Beckley v.

Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998). The district court must “also take into account

whatever in the record fairly detracts from that decision.” Id.; see also Stewart v. Sec’y of

Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (setting forth factors the court

must consider). Finally, a reviewing court should not disturb the ALJ’s decision unless it falls

outside the available “zone of choice” defined by the evidence of record. Buckner v. Astrue, 646

F.3d 549, 556 (8th Cir. 2011). A decision does not fall outside that zone simply because the

reviewing court might have reached a different conclusion had it been the finder of fact in the

first instance. Id.; see also McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010) (explaining

that if substantial evidence supports the Commissioner’s decision, the court “may not reverse,

even if inconsistent conclusions may be drawn from the evidence, and [the court] may have

reached a different outcome”).

IV. The ALJ’s Decision

The ALJ’s decision in this matter conforms to the five-step process outlined above (Tr.

17-27). The ALJ found that Plaintiff met the insured status requirements through June 30, 2025,

and had not engaged in substantial gainful activity since February 29, 2020 (Tr. 19). At step

two, the ALJ found that plaintiff had the severe impairments of chronic obstructive pulmonary

disease, obstructive sleep apnea, posttraumatic stress disorder, bipolar disorder, major depressive

disorder, anxiety disorder, and agoraphobia (Tr. 19). The ALJ determined at step three that

plaintiff did not have an impairment or combination of impairments that meets or medically

equals the severity of a listed impairment (Tr. 19). The ALJ specifically addressed listings 3.02,

3.09, 12.04, 12.06, and 12.15 (Tr. 20).

The ALJ next determined that Plaintiff had the RFC to perform light work, except that

she can lift and carry ten pounds frequently and twenty pounds occasionally; can stand and/or

walk for up to four hours and sit for up to six hours in an 8-hour workday; can occasionally

climb ramps and stairs; cannot climb ladders, ropes, or scaffolds; can occasionally stoop, kneel,

crouch, and crawl; must avoid extreme cold weather, extreme heat, and extreme humidity; may

be exposed to no more than occasional irritants such as fumes, odors, dust, gases, and poorly

ventilated areas; should avoid unprotected heights; has the ability to concentrate, persist, and

remain on task and pace to perform simple, routine, and repetitive tasks, which may involve

multiple, non-complex, simple, routine, and repetitive steps, tasks, or instructions; should have

no public interaction; can work around co-workers but with only occasional interaction with co-

workers and supervisors (Tr. 21). In assessing Plaintiff’s RFC, the ALJ summarized the medical

record; written reports from Plaintiff; Plaintiff’s work history; and, Plaintiff’s testimony

regarding her abilities, conditions, and activities of daily living (Tr. 21-25).

At step four, the ALJ concluded that Plaintiff is not capable of returning to her past

relevant work (Tr. 25). However, at step five, the ALJ found that Plaintiff could perform other

work in the national economy including photocopy machine operator, shipping and receiving

weigher, and routing clerk (Tr. 26). Thus, the ALJ found that Plaintiff was not disabled within

the meaning of the Social Security Act from February 29, 2020 to December 28, 2021 — the

date of the decision (Tr. 27).

VI. Discussion

In her brief, Plaintiff argues that the ALJ failed to properly evaluate the severity of her

COPD and anxiety and did not give appropriate weight to Mr. Morgans’ and NP Barnes’

opinions that she has significant functional limitations.

When evaluating opinion evidence, the ALJ is no longer required to give controlling

weight or any weight to opinion evidence. 20 C.F.R. 404.1520(a). Instead, the ALJ is to

consider all medical opinions equally and evaluate their persuasiveness according to several

specific factors. 20 C.F.R. § 404.1520c(b)(2). Of these factors, an ALJ must explain how she

considered the factors of supportability and consistency in her decision but need not explain how

she considered the other factors. 20 C.F.R. § 404.1520c(b)(2).2 The supportability factor

provides that “[t]he more relevant the objective medical evidence and supporting explanations

presented by a medical source are to support his or her medical opinion(s) or prior administrative

medical finding(s), the more persuasive the medical opinions or prior administrative medical

finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1). In articulating how she considers the

2 The other factors include the relationship with the claimant, specialization, and other factors which can include

whether additional evidence was submitted after the date of the opinion. 20 C.F.R. § 404.1520c(c)(3-5).

supportability factor, an ALJ may properly consider that the physician’s own treatment notes do

not support the physician’s opinion, that the physician did not consider certain evidence, or that

the physician did or did not provide a detailed explanation for the opinion. Starman v. Kijakazi,

2021 WL 4459720, at *4 (E.D. Mo. Sept. 29, 2021) (listing cases). The consistency factor states

that “[t]he more consistent a medical opinion(s) or prior administrative finding(s) is with the

evidence from other medical sources and nonmedical sources in the claim, the more persuasive

the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. §

404.1520c(c)(2).

The ALJ found that NP Barnes’ opinion was not persuasive because it was not supported

by “significant narration or explanation, and it is predominantly checked boxes.” She also found

that the opinion was inconsistent with the record as a whole which “generally shows the

claimant’s respiratory conditions are fairly well controlled and exams were typically normal.”

An ALJ can be justified in rejecting an opinion that is in a checkbox format if it contains no

explanation of the limitations despite containing areas where the doctor could explain the

limitations found. See Nolen v. Kijakazi, 61 F.4th 575, 577 (8th Cir. 2023) (finding that the ALJ

appropriately gave a treating doctor’s opinion little weight where the doctor “checked some

boxes and left blank the short-answer section asking what objective medical findings supported

his assessment”); Thomas v. Berryhill, 881 F.3d 672, 675 (8th Cir. 2018) (finding that a treating

physician’s opinion, made in conclusory fashion and which “cite[s] no medical evidence and

provide[s] little to no elaboration” can be rejected on that basis alone).

NP Barnes did offer some justification for his findings – he cites to diagnostic findings

from August 11, 2021. However, he provides no explanation of the functional limitations he

found – he does not elaborate on the efficacy of her medications, he does not identify any

limitations found from his examinations, and he does not elaborate on why he considered her

prognosis “fair.” The diagnostic testing from August 11, 2021 (Tr. 504-508) confirmed

Plaintiff’s diagnosis of moderately severe COPD but do not illuminate functional limitations (the

ALJ noted that testing revealed “no acute pathology” (Tr. 22)). Indeed, at the appointment

immediately after testing, Plaintiff appeared “in no distress” and although she had coughing and

her breath sounds were “slightly diminished,” they were clear and she had no crackles or

wheezes (Tr. 495-496). Accordingly, the ALJ was justified in finding that NP Barnes’ opinion

was not persuasive

Certainly, as Plaintiff points out, she was diagnosed with moderately severe COPD and

she did have, at times, trouble breathing especially when her COPD was exacerbated by illness.

The ALJ noted that she had wheezing and expiratory crackle (Tr. 23). However, the ALJ is not

tasked with outlining conditions but in determining how those conditions affect function. The

ALJ found that examinations were typically normal (citing to examinations in July, 2020,

August, 2020, September, 2020, October 2020, January 2021, February, 2021, April, 2021, July,

2021, August, 2021, September, 2021, and, October, 2021 for notations of no respiratory

distress), that Plaintiff responded to medication, that she did not need oxygen, and that she was

directed to stop smoking as a way of managing her condition (Tr. 23). As indicated above, there

were no records outlining breathing difficulties in the last 6 months of 2019 and for most of the

early part of 2020. Plaintiff did try a variety of medications to control her COPD symptoms in

2020 and 2021 with varied results. By mid to late 2021, however, she was started on Trelegy

which appeared effective and with no side effects. Certainly, conditions that are controlled or

managed with treatment are not considered disabling. Wilson v. Chater, 76 F.3d 238, 241 (8th

Cir. 1996).

And, when she was seen by a specialist, she was told that smoking and being around dust

would exacerbate her symptoms and she was directed to stop smoking, get a flu shot, and avoid

irritants as a way of controlling her symptoms. However, Plaintiff continued to smoke

throughout the relevant time period notwithstanding sporadic efforts at cessation by using

Chantix. The ALJ noted that “despite her respiratory impairments” and being told to stop,

Plaintiff continued to smoke cigarettes (Tr. 23). See Choate v. Barnhart, 457 F.3d 865, 872 (8th

Cir. 2006) (finding that an ALJ may make a credibility determination based on the claimant’s

failure to follow medical advice which includes quitting smoking). The ALJ pointed out that,

notwithstanding impairments, Plaintiff was capable of completing housework, managing her

personal care, engaging in social activities, and liviny with her husband and two adult children.

In fashioning the RFC, the ALJ took into account Plaintiff’s respiratory condition by limiting her

to light work with exertional limitations and limitations on exposure to irritants.3

As for Mr. Morgans’ opinion, the ALJ found that in addition to suffering the defects of

NP Barnes’ opinion, it was not supported by Mr. Morgans’ own treatment notes. Mr. Morgans’

assessment is in a checkbox format with little to no explanation. See Swarthout v. Kijakazi, 35

F.4th 608, 611 (8th Cir. 2022) (finding physician’s opinion “entitled to relatively little

evidentiary value on its face, because it was rendered on a check-box and fill-in-the-blank

form”). His treatment notes do not provide insight into the functional limitations he finds – there

are no mental status examinations, and his notes primarily consist of Plaintiff’s statements about

her stressors and moods. When Plaintiff was examined by NP Barnes, her mental status

examinations were normal as to functioning, but she did report anxiety regularly. NP Barnes

3 Plaintiff does not challenge the ALJ’s determination that agency doctor evaluations were persuasive. In particular,

the ALJ found Dr. O’Day’s and Dr. Weiss’ opinions regarding her physical functional capacity persuasive. Both

Drs. O’Day and Weiss opined that Plaintiff was capable of standing or walking for six hours in an eight-hour

workday and sitting for six hours, and is limited in various other postural and functional movements (Tr. 78-82; 104-

109).

tried different medications and noted that Vraylar was efficacious with no side effects. As such,

no further interventions were directed to manage her anxiety.

The ALJ found that Plaintiff was not as restricted as Mr. Morgans suggested because she

was treated conservatively for her mental health conditions. Brown v. Astrue, 2012 WL

8868789, *14 (E.D. Mo. Mar. 15, 2012); see also Reece v. Colvin, 834 F.3d 904, 909 (8th Cir.

2016) (affirming claimant was not disabled, in part, because claimant’s treatment was routine

and conservative); Rivers v. Saul, 2022 WL 1080937, at *13 (E.D. Mo. Apr. 11, 2022) (finding

that treatment that does not involve more aggressive treatments than appointments with a

psychiatrist, therapy, and prescription medications is routine.). Coupled with lack of explanation

in his opinion, the ALJ was justified in finding that it was not supportable or consistent. As to

the other factors that the ALJ should consider, she was not required to articulate how she

considered those factors.

Finally, as the ALJ noted, Plaintiff’s mental status examinations showed appropriate

behavior, an ability to concentrate, intact memory, normal speech, and normal insight and

judgment, even though she may also have presented as anxious or depressed (Tr. 23). Moreover,

a number mental health issues were the result of situational stressors. See Gates v. Astrue, 627

F.3d 1080, 1082 (8th Cir. 2010) (finding that the ALJ did not err in relying on medical records

that supported the conclusion that the claimants’ depression was situational in nature and

improved with counseling and medication). The ALJ further found agency Dr. Cottone’s

assessment, that Plaintiff was capable of working with reduced public contact, persuasive and

included that limitation in the RFC (Tr. 103).

* * * * *

For the foregoing reasons, the Court finds that the ALJ’s determination is supported by

substantial evidence on the record as a whole.

Accordingly, IT IS HEREBY ORDERED that the decision of the Commissioner is

affirmed.

A separate Judgment shall accompany this Memorandum and Order.

Dated this 26th day of January, 2024

/s/ John M. Bodenhausen

JOHN M. BODENHAUSEN

UNITED STATES MAGISTRATE JUDGE