Allen v. Berryhill

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

SOUTHWESTERN DIVISION

MELODIE ALLEN, )

)

Plaintiff, )

)

v. ) Case No. 3:18-05084-CV-RK

)

NANCY A. BERRYHILL, ACTING )

COMMISSIONER OF SSA; )

)

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”) 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

By way of overview, the ALJ determined that Plaintiff suffers from the following severe

impairments: degenerative disk disease and degenerative joint disease of the cervical, thoracic and

lumbar spines; remote history of bilateral carpel tunnel syndrome status post right side release;

history of cerebral infarction; major depressive disorder, recurrent, severe without psychotic

features; generalized anxiety disorder; attention-deficit hyperactivity disorder (“ADHD”); and

personality disorder. The ALJ also determined that Plaintiff has the following non-severe

impairments: hypertension, and right elbow lateral epicondylitis. However, the ALJ found that

none of Plaintiff’s impairments, whether considered alone or in combination, meet or medically

equal the criteria of one of the listed impairments in 20 CFR Pt. 404, Subpt. P, App. 1 (“Listing”).

Additionally, the ALJ found that despite her limitations, Plaintiff retained the residual

functional capacity (“RFC”) to perform light work as defined in 20 CFR 404.1567(b) except can

lift and carry 20 pounds occasionally, 10 pounds frequently; stand and/or walk 6 hours in an 8-

hour workday; sit up to 6 hours in an 8-hour workday; no repetitive pushing/pulling with the right

dominant upper extremity; no climbing ladders, ropes and scaffolding; occasionally climbing of

ramps and stairs; occasional balancing and stooping; no kneeling, crouching or crawling; can

perform frequent reaching, handling, fingering and feeling with the right dominant upper

extremity; must avoid concentrated exposure to vibrations and hazards such as unprotected heights

and dangerous moving machinery; and can perform simple, routine repetitive tasks, in other than

fast-paced production environment, requiring no contact with the general public and occasional,

superficial interaction with co-workers and supervisors. Although the ALJ determined that

Plaintiff is unable to perform any past relevant work, the ALJ found that considering Plaintiff’s

age, education, work experience, and RFC, Plaintiff can perform jobs that exist in significant

numbers in the national economy.

On appeal, Plaintiff argues the ALJ’s RFC determination is not supported by substantial

evidence because the ALJ improperly discounted the medical opinions of Mr. Shawn Brown, Mr.

Seth Jackson, and Dr. Steven Adams. Mr. Brown is Plaintiff’s nurse practitioner. Mr. Jackson, is

Plaintiff’s licensed counselor and social worker. Dr. Adams is Plaintiff’s examining psychologist.

The ALJ found Mr. Brown’s opinions less persuasive. The ALJ found the opinions of Mr. Jackson

and Dr. Adams not persuasive.

An ALJ is required to weigh all medical source opinions and “always give good reasons

for the weight given to a treating source’s opinion.” SSR 96-2p, 1996 WL 374188 at *5 (Soc. Sec.

Admin. July 2, 1996). Agency rules concerning the evaluation of medical opinions changed

significantly for claimants who filed their claims on or after March 27, 2017. 20 C.F.R. §

404.1520c. Here, the application was filed on May 4, 2017, and thus, the new agency rules apply.

Among the new changes, the agency explained that it will “not defer or give any specific

evidentiary weight, including controlling weight, to any medical opinion(s) … including those

from your medical sources.” Id. Further, the new regulations eliminated the term “treating

source,” as well as the treating physician rule. See id.; see also Jones v. Berryhill, No. 2:18-CV-

10 PLC, 2019 WL 1597411, at *3 (E.D. Mo. April 15, 2019). “Under current regulations, a

treating physician’s opinion is entitled to no special deference.” Jones, 2019 WL 1597411 at *3

n.3. Specifically, under the new regulations, an ALJ is directed to articulate how persuasive he

finds all of the medical opinions in the record. 20 C.F.R. § 404.1520c(b). The most important

factors in evaluating medical opinions are supportability and consistency. 20 C.F.R. §

404.1520c(b)(2). While there are other factors, an ALJ is not required to articulate each and every

factor for every medical opinion. See id. The parties do not dispute the ALJ articulated how

persuasive he found each medical opinion and that the ALJ considered the relevant factors in

coming to his decision. Thus, the only issue on appeal is whether the ALJ’s evaluation of the

medical opinions was supported by substantial evidence.

I. There was Substantial Evidence to Support the ALJ’s Evaluation of Mr. Brown’s

Opinion

Regarding the medical source statement (“MSSP”) opinions of Mr. Brown, the ALJ found

the opinions to be less persuasive. (Tr. 19.) The ALJ found Mr. Brown’s MSSP opinions to be

inconsistent with (1) Mr. Brown’s own physical examination, (2) Mr. Brown’s 2018 MSSP

opinion, which noted improvement in Plaintiff’s abilities, and (3) the overall record which failed

to document significant debilitating abnormalities. (Tr. 19.) First, Mr. Brown opined that Plaintiff

could do light work, needs to shift positions from sitting, standing or walking, would need to take

unscheduled breaks, and be absent or leave early; the ALJ noted these opinions. (Tr. 19, 690-92.)

Second, the ALJ also noted that Mr. Brown’s opinions were inconsistent with Mr. Brown’s own

physical examinations which found normal gait and station; normal spine alignment with no

deformity; normal range of motion of all four extremities with no joint enlargement or tenderness;

no focal deficits; intact cranial nerves; normal sensation, reflexes and coordination; and normal

muscle tone and strength, and no real pain of the musculoskeletal system. (Tr. 19, 531, 550, 568,

836-37, 859-60, 886-87.) Additionally, the ALJ noted that Mr. Brown’s 2018 MSSP opinion noted

improvement from his 2017 MSSP opinion. (Tr. 19, 689-92, 826-29.) Third, the ALJ found Mr.

Brown’s opinions less persuasive because it was inconsistent with the record as whole, which

failed to document debilitating abnormalities. (Tr. 19, 494, 504, 780, 801, 810, 1308, 1395.) The

ALJ properly considered the consistency of the opinion with other evidence in the record.

20 C.F.R. §404.1520c(c)(2).

Finally, the ALJ noted the opinion was in the form of a check box type form with little

narrative to support. (Tr. 19.) The Eighth Circuit has held a check box type of form may be

afforded less weight. Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (“The ALJ properly

discounted Dr. Burstain’s opinion because it was conclusory. The opinion consists of three

checklist forms, cited no medical evidence, and provides little to no elaboration.”) Therefore, there

is substantial evidence in the record to support the ALJ’s finding that Mr. Brown’s opinion was

less persuasive.

II. There was Substantial Evidence to Support the ALJ’s Evaluation of Mr. Jackson’s

Opinion

The ALJ found Mr. Jackson’s opinion not persuasive. (Tr. 19.) Mr. Jackson opined

Plaintiff would be off task 25% or more, would miss work approximately 4 days per month, is

limited in her ability to work in coordination with others, has markedly limited ability to complete

a normal workday and workweek, and has marked and extreme limitations in her abilities to

interact and adapt. The ALJ found Mr. Jackson’s opinion was not supported by Mr. Jackson’s

own mental status examination findings. (Tr. 20.) Those mental status examination findings noted

that Plaintiff was generally polite; interactive, with good eye contact; casual appearance; no

suicidal or homicidal ideations; and normal rate and tone of voice. (Tr. 20 (citing Tr. 495, 498,

510, 524, 538, 831, 842, 845, 854, 864, 866, 876, 897, 911, 917.)) Further, the ALJ found Mr.

Jackson’s opinion was inconsistent with the overall record. (Tr. 20, citing (Tr. 595, 598, 600,602,

605, 641, 673, 708, 780, 801, 810, 1308.)) Moreover, the ALJ noted additional inconsistencies

between Mr. Jackson’s opinion with Plaintiff’s daily activities and with Mr. Jackson’s advice that

Plaintiff consider looking for work or a volunteer opportunity. (Tr. 20, (citing Tr. 496, 847, 854,

and Plaintiff’s testimony.)) The ALJ properly evaluated the consistency of Mr. Jackson’s opinion

when determining its persuasiveness. 20 C.F.R. § 404.1520c(C)(2). Lastly, the ALJ noted that

Mr. Jackson’s opinion was in the check box type form. See Wildman, 596 F.3d at 964. Therefore,

there is substantial evidence in the record to support the ALJ’s finding that Mr. Jackson’s opinion

was not persuasive.

III. There was Substantial Evidence to Support the ALJ’s Evaluation of Dr. Adam’s

Opinion

The ALJ also found the opinion of Dr. Adams not persuasive. The ALJ reasoned that

Dr. Adams’ opinion was not supported by Dr. Adams’ own observations; appeared to be based on

Plaintiff’s own subjective reports and descriptions of her symptoms; the fact that Dr. Adams

reported Plaintiff “appeared to exaggerate some of her symptoms;” and that Dr. Adams’ opinion

was inconsistent with the record as a whole. (Tr. 20.) The ALJ again cites to numerous instances

in the record to support these findings. The ALJ complied with 20 C.F.R § 404.1520c by

explaining how persuasive the opinion was; considering how supported the opinion was; and

considering the consistency of the opinion with other evidence. Specifically, regarding Plaintiff’s

apparent exaggerations, exaggerations are a proper consideration for an ALJ. See Reece v. Colvin,

834 F.3d 904, 909-10 (8th Cir. 2016) (opinion afforded less weight when based on subjective

complaints rather than objective medical evidence) (citation omitted); Grable v. Colvin, 770 F.3d

1196, 1202 (8th Cir. 2014) (ALJ properly considered exaggeration). Furthermore, even though

Plaintiff did have mental limitations, the ALJ found Dr. Adam’s opinion (that Plaintiff’s mental

limitations would preclude work) inconsistent with the record as a whole, which failed to

demonstrate debilitating abnormalities due to mental impairments. Thus, The ALJ’s evaluation of

Dr. Adams’ opinions was supported by substantial evidence.

IV. The ALJ’s Determination was Supported by Substantial Evidence

Finally, Plaintiff makes several arguments that the record supports the opinions of

Mr. Brown, Mr. Jackson, and Dr. Adams and that the RFC was not supported by the evidence.

However, it is irrelevant whether or not other findings could be reached based on the same record.

A court should disturb an ALJ’s decision only if it falls outside the available zone of choice.

Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006). Even if a Plaintiff can identify a preferred

or alternative finding based on the record, it does not necessarily warrant disturbing the ALJ’s

decision. See id. Here, as explained above and in the briefs, the ALJ’s findings and decision

complied with the relevant regulations and was supported by substantial evidence.

Furthermore, the ALJ’s decision was based on an evaluation of the State Agency

psychological consultant, James Morgan, PhD, and the opinion of Roy Holland, M.D. Dr. Morgan

opined that Plaintiff could still perform and persist with simple tasks, with limited contact with the

general public, in a noncomplex work environment. (Tr. 145.) Plaintiff argues these opinions

should have been afforded less weight because they were non-treating physicians and lacked

pertinent evidence. However, the ALJ took the additional evidence into consideration when

weighing the opinions and noted additional limitations accordingly. (See Tr. 18.) As to Plaintiff’s

arguments that these opinions should have been afforded less weight because they were

non- treating doctors, in appropriate circumstances, an ALJ may afford greater weight to opinions

from state agency medical and psychological consultants than the opinions of treating or

examining sources. Ponder v. Colvin, 770 F.3d 1190, 1195 (8th Cir. 2014) (citing SSR 96-6P,

1996 WL 374180 at *3, (July 2, 1996)). The ALJ, from the record and reasons discussed above,

based his decision on substantial evidence within the record. Thus, even if the evidence and record

could support a determination that Plaintiff was disabled, because the ALJ’s decision was

supported by substantial evidence, it must not be disturbed.

Conclusion

Having carefully reviewed the record before the Court and the parties’ submissions on

appeal, the Court concludes that substantial evidence on the record as a whole supports the ALJ’s

decision. IT IS THEREFORE ORDERED that the decision of the ALJ is AFFIRMED.

IT IS SO ORDERED.

s/ Roseann A. Ketchmark

ROSEANN A. KETCHMARK, JUDGE

UNITED STATES DISTRICT COURT

DATED: October 23, 2019