# Thornsberry v. Berryhill

> District Court, W.D. Missouri · December 21, 2018

URL: https://www.frixlaw.com/law-library/cases/10240931

## Case

- **Court:** District Court, W.D. Missouri
- **Decided:** December 21, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10240931

## How later opinions describe it (automated extraction)

- holding that the fact that the ALJ made explicit findings only as to functions for which he found a limit suggested he implicitly found no limits as to other functions
- holding that the ALJ properly discounted a medical opinion when it “appeared to rely largely on [the claimant’s] own subjective reports of symptoms and limitations”

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
CHRISTINA LOUISE )
THORNSBERRY, )
)
Plaintiff, )
) No. 4:17-00531-CV-RK
v. )
)
COMMISSIONER, SOCIAL )
SECURITY ADMINISTRATION, )
)
Defendant. )
ORDER
Before the Court is Plaintiff’s appeal brought under 42 U.S.C. § 405(g) seeking review of
Defendant Commissioner of Social Security Administration’s (“SSA’s”) denial of disability
benefits as rendered in a decision by an Administrative Law Judge (“ALJ”). For the reasons below,
the decision of the ALJ is AFFIRMED.
Standard of Review
The Court’s review of the ALJ’s decision to deny disability benefits is limited to
determining if the decision “complies with the relevant legal requirements and is supported by
substantial evidence in the record as a whole.” Halverson v. Astrue, 600 F.3d 922, 929
(8th Cir. 2010) (quoting Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008)). “Substantial evidence
is less than a preponderance of the evidence, but is ‘such relevant evidence as a reasonable mind
would find adequate to support the [ALJ’s] conclusion.’” Grable v. Colvin, 770 F.3d 1196, 1201
(8th Cir. 2014) (quoting Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001)). In determining
whether existing evidence is substantial, the Court takes into account “evidence that detracts from
the [ALJ’s] decision as well as evidence that supports it.” Cline v. Colvin, 771 F.3d 1098, 1102
(8th Cir. 2014) (citation omitted). “If the ALJ’s decision is supported by substantial evidence, [the
Court] may not reverse even if substantial evidence would support the opposite outcome or [the
Court] would have decided differently.” Smith v. Colvin, 756 F.3d 621, 625 (8th Cir. 2014) (citing
Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001)). The Court does not “re-weigh the evidence
presented to the ALJ.” Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (citing
Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003)). The Court must “defer heavily to the
findings and conclusions of the [ALJ].” Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010)
(citation omitted).
Discussion
In determining that Plaintiff was not disabled, the ALJ undertook the five-step evaluation
process established by the SSA. At step one, the ALJ found that Plaintiff was not engaged in any
substantial gainful activity since her disability onset date. At step two, the ALJ determined that
Plaintiff suffered from the following severe medical impairments: left arm neuropathy, migraine
headaches, obesity, and fibromyalgia. Also at step two, ALJ determined that Plaintiff did not have
a medically determinable somatoform disorder, that Plaintiff’s left ankle impairment was non-
severe, and that Plaintiff’s Pansinusitis was non-severe. At step three, the ALJ found that
Plaintiff’s impairments, whether considered alone or in combination, did not meet or medically
equal any of the listed impairments in 20 CFR Pt. 404, Subpt. P, App. 1 (“Listing”). Between
steps three and four, the ALJ found that despite her limitations, Plaintiff retained the residual
functional capacity (“RFC”) to perform a range of sedentary work with the following limitations:
only occasional climbing, balancing, stooping, kneeling, crouching, and crawling,
but no climbing of ladders, ropes, or scaffolds; no concentrated exposure to
temperature extremes, vibration, or work hazards; no use of foot controls; no
exposure to pulmonary irritants; limited to simple unskilled work of a routine and
repetitive nature; and can frequently, but not constantly, use the dominant left upper
extremity for fine fingering and gross handling.
At step four, the ALJ found that Plaintiff was unable to do her past work of office manager.
Finally, at step five, the ALJ found that when considering Plaintiff’s RFC, age, education, and
work experience, Plaintiff could perform jobs that exist in significant numbers in the national
economy, including weight tester; order clerk, food and beverage; and document preparer.
On appeal, Plaintiff argues that (1) “[t]he ALJ failed to assess the RFC on a function-by-
function basis and erroneously assessed the exertional level first;” (2) the ALJ failed to fairly and
fully develop the record; (3) the ALJ did not properly assess the opinion of Plaintiff’s treating
physician; and (4) the Vocational Expert’s testimony conflicted with the Dictionary of
Occupational Titles (“DOT”).
I. Function-by-Function Assessment
First, Plaintiff argues the ALJ failed to provide a function-by-function assessment of her
limitations and abilities before assessing the exertional level (sedentary) when determining
Plaintiff’s RFC, in violation of Social Security Ruling (“SSR”) 96-8p. However, the fact that the
ALJ omitted a discussion of functional abilities does not mean he did not consider them. E.g.,
Beagley v. Berryhill, No. 5:17-06079-CV-RK, 2018 WL 4565461, at *3
(W.D. Mo. Sept. 24, 2018). “[A]n ALJ who specifically addresses the areas in which he found a
limitation and is silent as to those areas in which no limitation is found is believed to have
implicitly found no limitation in the latter.” Brown v. Astrue, No. 4:09-CV-274–DJS, 2010 WL
889835, at *25 (E.D. Mo. Mar. 8, 2010); see Depover v. Barhnart, 349 F.3d 563, 567-68
(8th Cir. 2003) (holding that the fact that the ALJ made explicit findings only as to functions for
which he found a limit suggested he implicitly found no limits as to other functions).
The cases Plaintiff cites are distinguishable. Hayes v. Astrue, No. 2:11-CV-04132-NKL,
2012 WL 393406, at *5 (W.D. Mo. Feb. 6, 2012); Schuler v. Astrue, No. 07-3360-CV-S-JCE-
SSA, 2009 WL 613556, at *5 (W.D. Mo. Mar. 9, 2009); Brown v. Astrue, No. 4:09CV274-DJS,
2010 WL 889835, at *25 (E.D. Mo. Mar. 8, 2010); Proffitt v. Astrue, No. CIV. 08-5024, 2009 WL
315690, at *3 (W.D. Ark. Feb. 6, 2009). In Hayes, the ALJ made no explicit findings about the
claimant’s functional limits. In Schuler, Brown, and Profitt, the objective medical evidence in the
record revealed apparent functional limits that the ALJs did not consider. Here, the ALJ identified
various functional limits specific to Plaintiff that are consistent with an ability to do “sedentary
work.”1 From the ALJ’s explicit findings, the Court can infer that he implicitly found no limits as
to other functions. Nothing in the record suggests otherwise. Accordingly, substantial evidence
supports the RFC.
II. Development of the Record
Second, Plaintiff argues that the ALJ failed to fairly and fully develop the record because
he did not order a consultative psychological evaluation concerning a somatoform disorder. “[A]n
ALJ has a duty to develop the record only when a crucial issue remains undeveloped.”
Couch v. Berryhill, No. 4:16-01317-CV-RK, 2018 WL 1378527, at *4 (W.D. Mo. Mar. 19, 2018).
Here, the ALJ found that Plaintiff’s allegation concerning a somatoform disorder was “a gross
mischaracterization of the impartial medical expert’s interrogatory” and that additional evidence
was unnecessary to make a proper decision. These findings are supported by substantial evidence.

1 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria
are met.” 20 C.F.R. 404.1567(a).
Plaintiff relies on an interrogatory response from the non-examining medical expert,
Morton Tavel, M.D. The interrogatory response states: “It is possible that the claimant equals or
meets listing 12.07, i.e., somatoform disorder, but a definitive diagnosis depends upon an
assessment by a psychological authority.” Plaintiff argues this should have prompted the ALJ to
order a consultative exam concerning a somatoform disorder. However, no somatoform disorder
was discussed at the administrative hearing, and Plaintiff’s counsel confirmed at the hearing that
there was not “[a]ny psychological diagnosis in the record.” (Tr. 39.) Beyond the interrogatory
response from Dr. Tavel, the Court sees no reference to a somatoform disorder in the record—
which includes several reports from treating physicians. One such opinion from Steven A. Carder,
M.D., states that Plaintiff’s “[i]nsight and judgment appears both to be intact and appropriate”
when addressing her psychiatric health. Accordingly, the Court concludes that substantial
evidence supports the ALJ’s decision not to order a psychological exam as to a somatoform
disorder.
III. Treating Physician’s Opinion
Third, Plaintiff argues that the ALJ did not give proper weight to the opinion of her treating
physician, Dr. Carder. An ALJ must “give good reasons” for discounting a treating source opinion.
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Anderson v. Astrue, 696 F.3d 790, 793
(8th Cir. 2012). Here, Dr. Carder filled out an RFC form stating that Plaintiff can never use her
left hand for repetitive motions. The ALJ gave this opinion “less than great weight” and found
that Plaintiff can use her left hand frequently for repetitive motions. The ALJ gave the following
reasons for discounting Dr. Carder’s opinion: (1) the “objective medical evidence of record” did
not contain “any clinical or diagnostic abnormality consistent with or supportive of the degree of
impairment and limitation contended by Dr. Carder;” (2) Dr. Carder’s treatment records did not
document a “persistent and sustained musculoskeletal or joint abnormality” with various specific
symptoms; and (3) these factors “reasonably suggested that Dr. Carder relied primarily, if not
solely, upon the claimant’s subjective allegations.”
Substantial evidence supports the first and third reasons the ALJ provided. Although the
record includes evidence of neuropathy in the left arm, including a diagnosis and treatment records
for pain management by another physician, Dr. Carder mentioned Plaintiff’s left arm only twice
in his treatment notes: once to state that the “Plans for New Diagnosis” included a “Neurology
referral for left upper extremity neuropathic pain,” and a second time to report that her left hand
and fingers were “normal to inspection and palpation.” The rest of Dr. Carder’s notes showed that
Plaintiff’s hands were normal. This is consistent with the reports of her previous treating physician
(Damon Haybrock, M.D.) and another physician (Christopher Gifford, D.O.), who conducted a
consultative exam and concluded that Plaintiff had “intact sensation and motor functioning” in her
left arm and could “grasp a pen[,] write a sentence[,] and lift, carry, and handle light objects.”
Accordingly, substantial evidence supports the ALJ’s findings that Dr. Carder’s opinion
was inconsistent with the objective medical evidence and was unduly influenced by Plaintiff’s
subjective allegations. See McDade v. Astrue, 720 F.3d 994, 999 (8th Cir. 2013) (holding that the
ALJ properly discounted a medical opinion when it “appeared to rely largely on [the claimant’s]
own subjective reports of symptoms and limitations”); Travis v. Astrue, 477 F.3d 1037, 1042
(8th Cir. 2007) (The Court “will not substitute its opinion for the ALJ’s, who is in the better
position to gauge credibility and resolve conflicts in the evidence.”). Therefore, the Court need
not address the ALJ’s second reason for discounting Dr. Carder’s opinion relating to the lack of
certain diagnoses and symptoms in Dr. Carder’s prior notes. See
Lucus v. Comm’r, Soc. Sec. Admin., No. 6:17-03247-CV-RK, 2018 WL 4600304, at *3
(W.D. Mo. Sept. 25, 2018) (affirming despite harmless error).
IV. Conflict with the DOT
Finally, Plaintiff argues that the Vocational Expert’s testimony that Plaintiff could perform
the jobs of order clerk (DOT 209.567-014) and document preparer (DOT 249.587-018) conflicted
with the DOT because the RFC limited her to “unskilled work of a routine and repetitive nature,”
and these two jobs “are not defined in the DOT as ‘repetitive’ jobs.” (Doc. 12 at 16.) However,
“[a] claimant’s reliance on the DOT as a definitive authority on job requirements is misplaced
because DOT definitions are simply generic job descriptions that offer the approximate maximum
requirements for each position, rather than their range.” Moore v. Astrue, 623 F.3d 599, 604
(8th Cir. 2010) (quotation marks and citation omitted). “The DOT itself cautions that its
descriptions may not coincide in every respect with the content of jobs as performed in particular
establishments or at certain localities.” Id. (quotation marks and citation omitted). Here, the DOT
does not say that a person who can do only “unskilled work of a routine and repetitive nature”
cannot do the jobs of order clerk and document preparer. Accordingly, the Vocational Expert’s
testimony did not conflict with the DOT, and the ALJ properly relied on it.
Conclusion
Having carefully reviewed the record before the Court and the parties’ submissions on
appeal, the decision of the ALJ is AFFIRMED.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT

DATED: December 21, 2018

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10240931. Public record. Not legal advice.