Boucher v. Saul

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

CRYSTAL LYNN BOUCHER, )

)

Plaintiff, )

)

v. ) Case No. 4:19-CV-00501-MDH

)

ANDREW M. SAUL )

Commissioner of Social )

Security )

)

Defendant. )

ORDER

Before the Court is a proceeding under Title II of the Social Security Act, 42 U.S.C. 401

et seq. Plaintiff requests review of the Administrative Law Judge’s (“ALJ”) decision dated

12/04/2018, which denied Plaintiff disability insurance benefits. After carefully reviewing the

record, the Court AFFIRMS the ALJ decision in part and REVERSES and REMANDS in part.

PROCEDURAL HISTORY

This case arises from the below ALJ’s decision on remand from this Court. Pursuant to the

remand order, the ALJ was directed to provide a function-by-function analysis of claimant’s work-

related functioning, and reconsider the medical opinion of claimant’s treating physician Dr.

Cantrell, specifically explaining why the prior ALJ decision gave less weight to the opinion of Dr.

Cantrell than the opinion of consultative examining physician Dr. Mukherjee. The ALJ was also

directed to offer claimant the opportunity for a hearing, address the additional evidence submitted,

and take any further action needed to complete the administrative record. Claimant appeared and

testified at hearings held on May 1, 2018 and September 17, 2018. Dr. Stephen Kaplan, an

impartial medical expert, and Amy L. Salva, an impartial vocational expert, also appeared at the

September 17, 2018 hearing.

BACKGROUND

The ALJ below determined that the Plaintiff has not been under a disability within the

meaning of the Social Security Act (the “Act”) from Plaintiff’s alleged disability onset date of

February 1, 2013 through the date of the ALJ’s decision. The ALJ found that Plaintiff has the

following severe impairments: obesity, fibromyalgia, affective disorder, and anxiety disorder.

While Plaintiff has a history of leukocytoclastic angitis and vasculitis, the ALJ relied on the

testimony of medical expert Dr. Kaplan to conclude that these impairments were severe, and

perhaps disabling for several months, but resolved within twelve months and therefore do not meet

the durational requirements of the Act.

The ALJ further found that Plaintiff does not have an impairment or combination of

impairments that meets or medically equals the severity of one of the listed impairments in 20

C.F.R Part 404, Subpart P, Appendix 1. The ALJ concluded that Plaintiff has a moderate limitation

with regard to concentrating, persisting, or maintaining pace. The ALJ found that the “paragraph

B” criteria are not satisfied, nor are the “paragraph C” criteria.

Per the District Court’s order, the ALJ completed a function-by-function analysis of

Plaintiff’s residual functional capacity (“RFC”) and found that Plaintiff has the RFC to perform a

range of sedentary work, including being able to lift and carry 20 pounds occasionally and 10

pounds frequently, stand and walk 2 of 8 hours, and sit at least 6 of 8 hours so long as she is

allowed to stand every 1-2 hours for 5 minutes. Furthermore, the ALJ found that Plaintiff should

never climb ladder, ropes, and scaffolds, and she must avoid all exposure to hazards including

unprotected heights and moving machinery. The ALJ found that Plaintiff can occasionally climb

ramps and stairs, can never stoop, crouch, crawl, or kneel; can occasionally bend at the waist, and

has sufficient balance to walk. The ALJ also found that Plaintiff can understand, remember, and

carry out simple routine repetitive tasks, applying like information with no more than occasional

changes in routine; make simple decision; and can have occasional, superficial interaction with

coworkers and supervisors but no contact with the general public.

In considering Plaintiff’s age, education, work experience, and RFC, the ALJ concluded

that there are jobs that exist in significant numbers in the national economy that Plaintiff can

perform. The vocational expert (“VE”) testified that a hypothetical person with Plaintiff’s

limitations would be able to perform the requirements of representative occupations such as

document scanner (DOT #249.587-018), circuit board assembler (DOT #726.684-110), and

packager (DOT #559.687-014).

STATEMENT OF THE ISSUES

Plaintiff argues that the ALJ’s conclusion that Plaintiff was not under a disability as defined

by the Act at any time through December 4, 2018 is not supported by the substantial evidence nor

based upon correct legal standards. Specifically, the issues before the Court are: (1) whether

substantial evidence supports the ALJ’s assessment of Plaintiff’s mental RFC; (2) whether

substantial evidence supports the ALJ’s assessment of Plaintiff’s physical RFC; and (3) whether

substantial evidence supports the ALJ’s finding that Plaintiff could perform “other work” that

existed in significant numbers in the national economy.

STANDARD

Judicial review of the Commissioner’s decision is a limited inquiry into whether

substantial evidence supports the findings of the Commissioner and whether the correct legal

standards were applied. See 42 U.S.C. §§ 405(g), 1383(c)(1)(B)(ii)(3). Substantial evidence is

less than a preponderance of the evidence and requires enough evidence to allow a reasonable

person to find adequate support for the Commissioner’s conclusion. Richardson v. Perales, 402

U.S. 389, 401 (1971); Freeman v. Apfel, 208 F.3d 687, 690 (8th Cir. 2000). This standard requires

a court to consider both the evidence that supports the Commissioner’s decision and the evidence

that detracts from it. Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008). That the reviewing court

would come to a different conclusion is not a sufficient basis for reversal. Wiese v. Astrue, 552

F.3d 728, 730 (8th Cir. 2009). Rather, “[i]f, after review, we find it possible to draw two

inconsistent positions from the evidence and one of those positions represents the

Commissioner’s findings, we must affirm the denial of benefits.” Id. (quoting Mapes v. Chater,

82 F.3d 259, 262 (8th Cir. 1996)). Courts “defer heavily to the findings and conclusions of the

Social Security Administration” and will disturb the Commissioner’s decision only if it falls

outside the “zone of choice.” Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010); Casey v. Astrue,

503 F.3d 687, 691 (8th Cir. 2007). Incorrect application of a legal standard is grounds reversal,

Ford v. Heckler, 754 F.2d 792 (8th Cir. 1985), but the Court defers to the ALJ’s determinations

of the credibility of witness testimony, as long as the ALJ’s determinations are supported by good

reasons and substantial evidence. Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006). Finally,

while a deficiency in opinion writing is not enough to merit reversal where it has no practical

effect on the outcome, incomplete analyses, inaccuracies, and unresolved conflicts of evidence

may be a basis for remand. Reeder v. Apfel, 213 F.3d 984, 988 (8th Cir. 2000).

DISCUSSION

I. The ALJ’s assessment of Plaintiff’s mental RFC

Plaintiff argues that the ALJ’s assessment of Plaintiff’s mental RFC is not supported by

substantial evidence and should be reversed and remanded. The Court disagrees and finds that the

ALJ’s decision is supported by substantial evidence and therefore is affirmed. Plaintiff argues

that although the ALJ found moderate limitations in concentration, persistence, or pace, she failed

to include limitations in the RFC on Plaintiff’s ability to complete tasks in a timely manner.

(Plaintiff’s Brief, 6).

Plaintiff cites several cases that required remand based on an ALJ’s failure to consider a

claimant’s deficiencies in concentration, persistence, or pace. See, e.g., Porter v. Colvin, Case

No. 4:14-cv-00813-NKL, Doc. 17 (W.D. Mo. June 22, 2015); Newton v. Chater, 92 F.3d 688 (8th

Cir. 1996); Logan-Wilson v. Colvin, Case No. 4:13-cv-1119-JAR, 2014 WL 4681459, at *6 (E.D.

Mo. Sept. 19, 2014). As noted by the Commissioner, however, the ALJ here did find moderate

limitations in evaluation “paragraph B” factors, but she was not required to include any limitations

on Plaintiff’s ability to complete tasks in a timely manner in the mental RFC. This was explicitly

noted by the ALJ, given that the limitations identified in the “paragraph B” criteria are used only

to rate the severity of mental impairments at steps two and three of the evaluation process and are

not in and of themselves an RFC assessment. (Tr. 908-09).

The ALJ here founds that the record supported Plaintiff’s limitation to work that involved

understanding, remembering, and carrying out simple routine tasks, applying like information

with no more than occasional changes in routine, and making simple decision. (Tr. 909). Such

limitations have been repeatedly confirmed as valid for a finding of moderate limitation on

concentrating, persisting, or maintaining pace. See, e.g., Barnes v. Astrue, 2012 WL 37497, at

*11 (W.D. Mo. Jan. 9, 2012); Davidson v. Astrue, 578 F.3d 838 (8th Cir. 2009); Pearl v. Berryhill,

Case. No. 17-01000-cv-w-ODS, 2018 WL 3642447, at *2 (W.D. Mo. Aug. 1, 2018).

The ALJ gave partial weight to the opinions of Dr. Jeffrey Meyer, a treating physician, as

to Plaintiff’s mental functional limitations. Specifically, Plaintiff takes issue with the fact that the

ALJ rejected the portion of Dr. Meyer’s opinions that identified marked limitations in performing

activities within a schedule, maintaining regular attendance, and being punctual within customary

tolerance as inconsistent with other evidence in the record. (Tr. 915). In making her assessment,

the ALJ considered the Dr. Kaplan’s testimony in light of the underlying treatment and evaluation

of evidence and found his opinion and observation to be fully supported. (Tr. 911-12). The ALJ

gave significant weight to the medical expert that Plaintiff might have concentration problems

due to physical impairments. The ALJ also found that limitations relating to Plaintiff’s ability to

complete tasks in a timely manner were not supported by the record. The ALJ, in rejecting those

limitations, noted that such limitations were not supported by the evidence, particularly Plaintiff’s

Function Report and nearly normal mental status examinations. (Tr. 915). The ALJ was not

required to include such limitations in the RFC because she found that the limitations were not

supported by the record. (Tr. 915). See Blackburn v. Colvin, 761 F.3d 853, 860-61 (8th Cir. 2014).

The ALJ cited to Dr. Meyer’s own mental status examination notes that showed

cooperative behavior, good eye contact, normal thinking, and the ability to focus. (Tr. 2562-67).

Examination findings from other doctors undermine Dr. Meyer’s conclusions as well. For

example, Dr. Rosbrough concluded that Plaintiff has appropriate eye contact, linear and goal-

directed though processes, and normal attention and concentration. (Tr. 1955-85). During medical

examinations in September 2016, Plaintiff was alert, cooperative, in good disposition, and able to

answer all questions; and had normal recent and remote memory and normal attention and

concentration. (Tr. 2125, 2033-34). The ALJ also considered that Dr. Meyer’s opinion of marked

limitations was inconsistent with Plaintiff’s Function Report. (Tr. 915). The ALJ properly cited to

objective evidence in the record that was inconsistent with Dr. Meyer’s opinion in order to discount

Dr. Meyer’s opinion. See Winn. V. Comm’r, Soc. Sec. Admin., 894 F.3d 982, 987 (8th Cir. 2018).

While the ALJ was required to take Plaintiff’s alleged limitations into account, she was not

required to accept Plaintiff’s subjective complaints without question. Rather, the ALJ here

properly exercised her discretion in assessing the consistency of Plaintiff’s alleged limitations in

light of other evidence in the record. 20 C.F.R. §§ 404.1529 and 416.929.

While the ALJ did not adopt any one medical opinion, she was not required to. Stringer v.

Berryhill, 700 F. App’x 566, 567-68 (8th Cir. 2017) (“there is no requirement that RFC findings

be supported by specific medical opinion”). While the ALJ gave partial weight to Dr. Meyer, and

no weight to his opinion that Plaintiff had marked limitations in certain areas of function, this was

proper, as the ALJ identified the reasons for doing so and those reasons were supported by

objective evidence in the record. See Turpin v. Colvin, 750 F.3d 989, 994 (8th Cir. 2014) (the ALJ

properly gave lesser weight to a treating physician opinion where it conflicted wit the medical

records, the testimony of a medical expert, and Plaintiff’s account of her daily activities). The

Court therefore finds that the ALJ’s assessment of Plaintiff’s mental RFC is supported by

substantial evidence and is affirmed.

II. The ALJ’s assessment of Plaintiff’s physical RFC

Plaintiff contends that substantial evidence does not support the ALJ’s assessment of

Plaintiff’s physical RFC. In its remand order, this Court instructed the ALJ to provide a function-

by-function assessment of the RFC, state the inconsistencies that justify affording little weight to

the treating physician’s opinion, and to adequately identify the evidence in the record that supports

Plaintiff’s impairments. The Court finds that the ALJ’s assessment of the physical RFC was

satisfactory and supported by substantial evidence.

The ALJ enlisted the services of a medical expert—Dr. Kaplan—to aid the ALJ’s

assessment of Plaintiff’s impairments. Plaintiff contends that Dr. Kaplan’s opinions are not

substantial evidence to support the ALJ’s decision, because he is a non-examining, non-treating

State agency opinion, his testimony was internally inconsistent, and he ignored or overlooked

impairments as well as evidence of edema. (Plaintiff’s Brief, 11-13).

Dr. Kaplan was able to review all available medical records, as well as listen to Plaintiff’s

live testimony at the hearing. He had also been provided with a recording of Plaintiff’s prior

administrative hearing testimony. In offering his function-by-function assessment of Plaintiff’s

RFC, he identified specific evidence in the record that supported such conclusions, and the ALJ

cited to some of that evidence in her decision. (Tr. 909-15). While Plaintiff argues that ALJ

overlooked evidence related to Plaintiff’s edema, the ALJ’s decision makes it clear that she is

citing to only particular examples of the medical evidence, and not to every occurrence in the

record. (Tr. 911). This is appropriate. See Chaney v. Colvin, 812 F.3d 672, 678 (8th Cir. 2016) (the

ALJ’s failure to cite a specific piece of evidence does not mean that it was not considered.).

The ALJ adequately considered evidence of Plaintiff’s edema. The ALJ cited Dr. Kaplan’s

opinion that Plaintiff’s angina showed duration for less than one year and found that the

ambiguities in the record contributed to the uncertainty regarding the duration of the condition and

because a lack of medical substantiation that the condition remained severe for 12 months (Tr.

910). The ALJ also adequately addressed the Plaintiff’s diabetes and low back pain, despite

Plaintiff’s argument to the contrary. Dr. Kaplan testified that Plaintiff would have no limitations

in her ability to use or hands or arms (Tr. 1384), and the ALJ found that Plaintiff’s diabetes had

not caused complication that limited functioning and was therefore non-severe. (Tr. 907). Dr.

Kaplan discussed that Plaintiff had complaints and limitations related to her lower extremities (Tr.

1385), and the ALJ found that due to pain and obesity, Plaintiff was limited to sedentary work

only. (Tr. 914).

Plaintiff argues that, because the ALJ afforded little weight to the opinions of treating

physician, Dr. Cantrell, the opinions of the non-examining, non-treating physician Dr. Kaplan

cannot be substantial evidence to support the ALJ’s assessment. (Plaintiff’s Brief, 12). The ALJ

properly relied on the inconsistencies in Dr. Cantrell’s opinion identified by Dr. Kaplan to afford

little weight to the opinion. (Tr. 915). The ALJ noted that Dr. Kaplan had the opportunity to

analyze the “greatly expanded records,” that Dr. Kaplan opined that Plaintiff’s impairments were

controlled or amenable to control, and that Dr. Kaplan’s observation that Dr. Cantrell’s opinions

of severely limited functioning were appropriate only during periods of serious symptoms, namely

when Plaintiff was dealing with angitis, which the evidence showed eventually resolved. (Tr. 915).

Thus, it is incorrect to suggest, as the Plaintiff does, that the ALJ rejected Dr. Cantrell’s opinion

in its entirety. While the Plaintiff clearly disagrees with the conclusions of the ALJ and the ALJ’s

reliance on Dr. Kaplan’s opinion, this is insufficient to warrant remand. See Twyford v. Comm’r,

Soc. Sec. Admin., 929 F.3d 512, 518 (8th Cir. 2019). This Court finds that the ALJ’s assessment

of Plaintiff’s physical RFC is supported by substantial evidence and is affirmed.

III. The ALJ’s finding that Plaintiff could perform “other work” that existed in

significant numbers in the national economy

The ALJ, relying on the testimony of a VE, found that Plaintiff could perform the jobs of

document scanner (DOT #249.587-018), circuit board assembler (DOT #726.684-110), and

packager (DOT 559.687-014). (Tr. 971, 1401, 1402). Plaintiff argues that the ALJ’s determination

that Plaintiff can perform “other work” in satisfaction of step five should be reversed and remanded

(Plaintiff’s Brief, 3). The Court agrees.

First, the Plaintiff argues that, because the ALJ precluded Plaintiff from exposure to

hazards (Tr. 909), Plaintiff cannot perform any of the jobs identified. (Plaintiff’s Brief, 3). The job

of document scanner requires the use of a paper cutter or razor knife. The job of circuit board

assembler requires the use of a wire cutter and soldering iron. The job of ampoule sealer requires

the use of a Bunsen burner and hot glass. The Court agrees with the Commissioner that these are

not “hazards” for purposes of the ALJ’s assessment. (Defendant’s Brief, 16). “Hazards,” as defined

by the Selected Characteristics of Occupations (“DOT”), include: moving mechanical parts of

equipment, tools, or machinery; electrical shock; working in high, exposed places; exposure to

radiation; working with explosives; and exposure to toxic, caustic chemicals. See SSA Program

Operations Manual System DI 25015.020. The DOT descriptions of the jobs identified by the VE

explicitly state that each of these hazards are “Not Present—Activity or condition does not exist.”

Plaintiff asks this Court to read into the ALJ’s opinion an unsubstantiated lay interpretation of

what constitutes a “hazard,” which the Court declines to do. Thus, the VE’s testimony is consistent

with the DOT, and the representative jobs do not involve any exposure to hazards.

Second, Plaintiff argues that the VE’s testimony—that there was other work she could

perform despite the fact that she could never stoop—was inconsistent with SSR 96-9p. (Plaintiff’s

Brief, 5). Ruling 96-9p states that “a complete inability to stoop would significantly erode the

unskilled sedentary occupational base and a finding that the individual is disabled would usually

apply…” and “[c]onsultation with a vocational resource may be particularly useful for cases where

the individual is limited to less than occasional stooping.” SSR 96-9p. Here, the ALJ obtained

vocational expert testimony to determine the impact of Plaintiff’s preclusion from stooping on the

unskilled sedentary occupational base. While it is true that a finding that the individual is disabled

would “usually” apply, this was not the case here where the vocational expert was able to identify

jobs that Plaintiff could perform. In all three jobs identified, stooping was “Not Present—Activity

or condition does not exist.” DOT, Document Preparer, Microfilming, 249.587-018, 1991 WL

672349; Touch-Up Screener, Printed Circuit Board Assembly, 726.684-110, 1991 WL 679616;

Ampoule Sealer, 559.687-014, 1991 WL 683782. The ALJ appropriately considered the VE’s

testimony and opinion regarding Plaintiff’s stooping limitation in accord with SSR 96-9p.

Lastly, Plaintiff argues that this case must be remanded due to an inconsistency between

the VE’s testimony and the DOT regarding the job of document scanner (DOT #249.587-018).

(Plaintiff’s Brief, 2-3). The ALJ explicitly limited Plaintiff to repetitive work. (Tr. 909). The job

of document scanner is not, however, identified as a repetitive job in the DOT and, in fact,

specifically requires the ability to perform a variety of duties. The VE, then, has testified

inconsistently with the DOT, and neither the VE nor the ALJ recognized the conflict. (Tr. 917).

Accordingly, the ALJ did not resolve the conflict. This Court has held that an ALJ’s failure to

provide any explanation for the discrepancy between an explicit limitation and the requirements

of jobs identified by the VE precludes affirmance. McPheeters v. Astrue, 2013 WL 523674, at *3

(W.D. Mo. Feb. 12, 2013) (citing Jones v. Barnhart, 315 F.3d 974, 979 (8th Cir. 2003) (noting “an

ALJ cannot rely on expert testimony that conflicts with job classifications in the DOT unless there

is evidence in the record to rebut those classifications.”).

The facts of McPheeters are analogous to those in the present case. There, the ALJ’s RFC

excluded Plaintiff from performing jobs which “involve detailed tasks or detailed instructions.”

McPheeters, 2013 WL 523674 at *2. The ALJ posed a hypothetical to the VE which limited the

Plaintiff to work that does not involve dealing with detailed tasks or instructions. Id. The VE

identified three jobs, but two of which require reasoning skills that requires the ability to

understand and carry out detailed instructions. Id. Importantly, as in this case, the ALJ in

McPheeters did not recognize, resolve, or explain the conflict in his decision.

The Commissioner asks this Court to rely on Welsh v. Colvin, 765 F.3d 926, 930 (8th Cir.

2014), where the court held that “the failure to address any potential inconsistency between the

RFC’s limitation to simple, routine, repetitive work and the DOT’s requirement of level three

reasoning [such as that required by the document scanner job] does not require remand.” Welsh,

however, is easily distinguishable from this case. There, the ALJ questioned the VE about apparent

inconsistencies between the VE’s testimony and the relevant DOT job descriptions and explained

his decision to credit the VE’s testimony. Id. The Commissioner also cites to Renfrow v. Astrue,

496 F.3d 918 (8th Cir. 2007) for a similar proposition. In Renfrow, however, the facts are again

quite different from those at hand. There, the court found that there was no actual conflict between

the VE’s testimony and the DOT, because the VE’s testimony referred to broad categories that

were inconsistent with the RFC limitations, but in actuality the jobs identified were narrower jobs

within those categories which were consistent with the RFC limitations. Id. at 921.

The Commissioner further argues that remand is not required here because the jobs of

circuit board assembler and packager exist in significant numbers in the national economy.

(Defendant’s Brief, 15). It is true that ALJ’s may properly cite to fewer than three occupations if

it is clear that the jobs exist in significant numbers with fewer occupations. See 20 C.F.R. §§

404.1566(b) and 416.966(b). See also Weiler v. Apfel, 179 F.3d 1107, 1110-11 (8th Cir. 1999)

(affirming the ALJ’s decision and finding that even if the plaintiff could not perform the VE-

identified jobs of deliverer, locker room attendant, or arcade attendant, he could perform the job

of surveillance systems monitor, and the ALJ could reasonably find that 32,000 surveillance

systems monitor jobs in the national economy constituted a significant number of jobs.). Plaintiff

notes that Weiler was decided prior to the enactment of SSR 00-04p.

Plaintiff is further correct that for this Court to conclude that the ALJ found that the jobs

of circuit board assembler and packager existed in significant numbers in the national economy

would be to supply a factual finding that the ALJ herself did not make. The ALJ made no findings

regarding the validity of the two jobs in the absence of the job of document scanner. (Tr. 917).

While this may be true, it is beyond the scope of the Court to make a finding of fact. See

McPheeters, 2013 WL 523674 (declining to supply finding that other jobs existed in significant

numbers). See also May v. Astrue, 2010 WL 3257848 *8 (W.D. Mo. 2010) (“A reviewing court

may not uphold an agency decision based on reasons not articulated by the agency when the agency

has failed to make a necessary determination of fact or policy.”). In sum, because the ALJ did not

recognize or resolve the inconsistency between the VE’s testimony and the DOT with respect to

the job of document scanner, the Court orders remand on this issue.

CONCLUSION

With respect to the ALJ’s assessment of Plaintiff’s mental and physical RFC, the Court

finds that the ALJ’s decision is supported by substantial evidence in the record as a whole and is

hereby AFFIRMED. With respect to the ALJ’s reliance on the vocational expert’s testimony

that Plaintiff can perform the job of document scanner, the Court finds that the ALJ erred and the

ALJ’s decision that Plaintiff can perform “other work” under step five is hereby REVERSED

and REMANDED.

IT IS SO ORDERED.

Dated: September 10, 2020 /s/ Douglas Harpool______

DOUGLAS HARPOOL

United States District Judge