# Berutti v. Saul

> District Court, W.D. Missouri · April 16, 2021

URL: https://www.frixlaw.com/law-library/cases/10241860

## Case

- **Court:** District Court, W.D. Missouri
- **Decided:** April 16, 2021
- **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/10241860

## How later opinions describe it (automated extraction)

- finding that the ALJ properly considered the claimant’s treatment history of exercises as relatively conservative
- finding no error where the ALJ did not evaluate the claimant’s work history but evaluated other factors to conclude the claimant was not credible
- holding that the ALJ is required to order further medical examinations only if the existing medical record does not provide sufficient evidence to determine whether the claimant is disabled

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

KIM BERUTTI, )
)
Plaintiff, )
)
v. ) Case No. 4:20-cv-00641-NKL
)
ANDREW SAUL, )
Commissioner of Social Security, )
)
Defendant. )

ORDER
Plaintiff Kim Berutti appeals the Commissioner of Social Security’s final decision
denying her application for disability insurance benefits under Title II of the Social Security Act.
Because the Administrative Law Judge’s decision is not supported by substantial evidence, the
Court reverses for further development of the record.
I. Background
Berutti suffers from degenerative joint disease in the knees and shoulders, bilateral
shoulder rotator cuff tears, degenerative disk disease, cervical myofascial pain, obesity, ankle
and foot impairments, and anxiety. She alleges her onset date of disability is February 1, 2015.
Tr. 10. For more than fifteen years prior to that date, Berutti worked as a certified nursing
assistant (CNA), which was physically taxing because it involved lifting patients. Tr. 44-45.
After the alleged onset date, Berutti complained primarily of back and knee pain, received
various work restrictions from her doctors, and continued to work as was feasible, but this work
did not constitute substantial gainful employment according to the Administrative Law Judge
(ALJ). Tr. 12, 296, 300, 303 (imposing 30-pound lifting maximum); 643. In February 2017,
Berutti underwent a total right knee arthroplasty. Tr. 594. She had previously received a left
knee replacement in 2013. Tr. 42. In addition to her knee conditions, Berutti suffers from
shoulder and foot pain. As to the shoulder pain, in August 2018, Berutti fell and sustained a
rotator cuff injury. Tr. 690. Surgery was recommended in March 2019, but not pursued due to
complications with her blood pressure medications and smoking. Tr. 790, 800. As to the foot
pain, Berutti attended physical therapy with some success. Tr. 580, 582, 691. Throughout this

period, Berutti took Norco and other medications to reduce her pain. E.g., Tr. 64, 449, 643-44,
707. She intermittently sought part-time employment. E.g., Tr. 36-37 (Berutti testifying that she
started party-time employment with Goodwill the week before her hearing in September 2019);
Tr. 673 (describing bending and lifting in a new job in August 2018).
Berutti filed her application for disability insurance benefits on August 21, 2018. Tr. 10.
A hearing with an administrative law judge (ALJ) occurred on September 25, 2019, and the ALJ
denied Berutti’s application on October 3, 2019. Tr. 7, 32.
The ALJ found Berutti has the following severe impairments: degenerative disc disease
of the lumbar and cervical spine; degenerative joint disease of the knees, bilaterally; bilateral

rotator cuff tears, right greater than left; mild degenerative joint disease of the shoulders,
bilaterally; obesity and cervical myofascial pain syndrome. Tr. 12. As to mental impairments,
the ALJ found Berutti has mild mental limitations, but that her anxiety is nonsevere. Tr. 13. The
ALJ concluded that Berutti has the following residual functional capacity (RFC): “light work,
lifting and/or carrying 20 pounds occasionally, 10 pounds frequently; standing and/or walking 6
hours; sitting 6 hours; no climbing ladders, ropes, or scaffolds; no exposure to unprotected
heights, dangerous machinery, hot or cold temperature extremes; occasionally reach in all
directions with the right upper extremity; occasional overhead reaching with the left upper
extremity; occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl.” Tr.
16. The ALJ found that Berutti sustained her burden through step four and established she could
no longer perform her past relevant work as a CNA. Tr. 23. Relying on the testimony of a
vocational expert, the ALJ found Berutti could perform other work as a furniture rental
consultant, usher, and counter clerk, photo. Tr. 24.
The Social Security Administration’s Appeals Council denied Berutti’s request for

review. Tr. 1. The ALJ’s decision, as the final decision by the Commissioner, is subject to
judicial review.
II. Legal Standard
The Court must affirm the Commissioner’s denial of social security benefits so long as
“there was no legal error” and “the findings of fact are supported by substantial evidence on the
record as a whole.” Brown v. Colvin, 825 F.3d 936, 939 (8th Cir. 2016). “Substantial evidence”
is less than a preponderance but enough that a reasonable mind would find it adequate to support
the ALJ’s conclusion. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019); Milam v. Colvin, 794
F.3d 978, 983 (8th Cir. 2015). The Court must consider evidence that both supports and detracts

from the ALJ’s decision. Milam, 794 F.3d at 983. The Court “may not reverse the ALJ because
substantial evidence exists in the record that would have supported a contrary outcome, or
because [the Court] would have decided the case differently.” Hilliard v. Saul, 964 F.3d 759,
762 (8th Cir. 2020) (citing Brown v. Barnhart, 390 F.3d 535, 538 (8th Cir. 2004)).
III. Discussion
An RFC is the most a claimant can still do despite her physical or mental limitations. 20
C.F.R. § 404.1545(a)(1). An ALJ should consider “‘all the evidence in the record’ in
determining the RFC, including ‘the medical records, observations of treating physicians and
others, and an individual’s own description of [her] limitations.’” Stormo v. Barnhart, 377 F.3d
801, 807 (8th Cir. 2004) (quoting Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th Cir. 2002)).
A. Whether the ALJ’s RFC as to Berutti’s Mental Functional Limitations is
Supported by Substantial Evidence
Berutti claims that the ALJ found her medically determinable impairment of anxiety to be

nonsevere, then acknowledged mild limitations stemming from her anxiety, but did not include
these limitations in the RFC or hypothetical to the vocational expert. Doc. 12, p. 22. Berutti
argues this omission constitutes reversible error. Id. The Commissioner contends that the ALJ
was not required to include limitations related to anxiety when considered with Berutti’s other
impairments, and that the ALJ “permissibly decided Plaintiff’s anxiety did not result in more
than minimal vocational limitations either singly or in combination with her other impairments.”
Doc. 13, p. 11.
SSR 96-8p instructs that the ALJ “must consider limitations and restrictions imposed by
all of an individual’s impairments, even those that are not ‘severe.’ While a ‘not severe’

impairment(s) standing alone may not significantly limit an individual’s ability to do basic work
activities, it may—when considered with limitations or restrictions due to other impairments—be
critical to the outcome of a claim.” SSR 96-8p.
At Step 3, the ALJ found Berutti has mild limitations in understanding, remembering, or
applying information; interacting with others; ability to concentrate, persisting or maintaining
pace, and ability to adapt or manage herself. Tr. 13-14. The RFC does not include any mental
limitations, and the ALJ’s decision does not include analysis explaining the omission. The ALJ
only stated that, “the following residual functional capacity assessment reflects the degree of
limitation the undersigned as found in the ‘paragraph B’1 mental function analysis.” Tr. 14. The
Court finds that this cursory explanation is insufficient. On the current record, the Court cannot
discern why the ALJ chose not to include any mental limitations in the RFC after finding Berutti
to have mild mental limitations. “[T]he mild mental limitations found by the ALJ should have
been incorporated into the RFC determination or a reason provided for their omission, and on

remand, the ALJ should either incorporate these limitations into the RFC or provide justification
for their omission.” Vicky R. v. Saul, 2021 WL 536297, at *14 (D. Minn. Jan. 28, 2021);
Clevenger v. Colvin, 2016 WL 3911982, at *2 (W.D. Mo. July 15, 2016) (reversing where the
ALJ failed to include his own findings on social limitations in the RFC determination and did not
explain why the findings were omitted).
Because the Court cannot tell whether substantial evidence supports the RFC as to
Berutti’s mental limitations, and because the ALJ based the hypotheticals posed to the VE on this
RFC, the Court cannot determine whether substantial evidence supports the hypothetical. In
turn, testimony from a VE “constitutes substantial evidence only when based on a properly-

phrased hypothetical question that comprehensively describes the limitations on a claimant’s
ability to function in the workplace.” Neeley v. Berryhill, 2017 WL 4074614, at *2 (W.D. Mo.
Sept. 14, 2017); Gann v. Berryhill, 2017 WL 3197610, at *3 (8th Cir. July 28, 2017); Tucker v.
Barnhart, 363 F.3d 781, 784 (8th Cir. 2004). Accordingly, on remand, the ALJ must formulate
the hypothetical questions consistently with the determination on whether to include or omit
mental limitations in the RFC.

1 The “paragraph B” criteria include four areas of mental functioning including (1)
understanding, remembering, or applying information; (2) interacting with others; (3) ability to
concentrate, persist, or maintain pace; and (4) ability to adapt or manage oneself. 20 CFR §
404.1520a(c)(3).
B. Whether the ALJ’s RFC as to Berutti’s Physical Functional Limitations is
Supported by Substantial Evidence
Berutti contends that the RFC is not supported by substantial evidence because the ALJ
(1) failed to fully and fairly develop the record, (2) improperly discounted Berutti’s work history,
(3) incorrectly concluded her pain medications were inconsistent with her pain allegations, (4)

erred by finding her delayed surgery suggested her symptoms were not as severe as she alleged,
and (5) improperly rejected Berutti’s disability allegations by relying on noncompliance with
physical therapy, conservative treatment, and lapses in treatment.
i. Duty to Develop the Record
Berutti argues that the ALJ improperly relied on the opinion of a non-examining, non-
treating State agency physician, Dr. McCall, and that Dr. McCall’s opinions do not constitute
substantial evidence. Doc. 12, p. 23. Berutti claims the ALJ should have “fulfilled his duty to
develop the record fully and fairly and obtained some opinion from an examining or treating
physician or, at least, an expert who has a specialty relevant to Berutti’s impairments, such as an

orthopedist.” Id. at 23-24.
Dr. McCall authored her report in January 2019. Tr. 94. Dr. McCall found Berutti’s
osteoarthrosis and allied disorders, disorders of back-discogenic and degenerative, and
dysfunction – major joints all to be severe. Tr. 88. She recommended an RFC with light work,
including occasional lifting of no more than twenty pounds, frequent lifting of no more than ten
pounds, standing or walking about six hours in an 8-hour workday, sitting about six hours in an
8-hour workday, occasional pushing and pulling and occasional reaching overhead with bilateral
upper extremities due to tears in both shoulders, and a variety of postural and environmental
limitations. Tr. 90-91.
As to Berutti’s claim that Dr. McCall’s opinions do not constitute substantial evidence
because she is a non-examining, non-treating State agency physician, Berutti relies on pre-2017
regulations and Jenkins v. Apfel.2 Doc. 12, p. 23; Doc. 14, p. 3 n.2. In 2017, the Social Security
Administration updated some of its regulations, and these new regulations apply to claims filed
after March 27, 2017, such as Berutti’s claim. Pursuant to 20 C.F.R. § 404.1520c(a), the

Commissioner “will not defer or give any specific evidentiary weight, including controlling
weight, to any medical opinion(s) or prior administrative medical finding(s).” 20 C.F.R. §
404.1520c. For all medical opinions, the ALJ considers supportability and consistency.3 Id. As
to supportability, “[t]he more relevant the objective medical evidence and supporting
explanations presented by a medical source are to support his [] medical opinion(s)” the more
persuasive the medical opinions will be. Id. § 404.1520c(c)(1). As to consistency, “[t]he more
consistent a medical opinion(s) [] is with the evidence from other medical sources and
nonmedical sources in the claim, the more persuasive the medical opinion(s) [] will be.” Id. §
404.1520c(c)(2).

2 In Jenkins, the Eighth Circuit held that where there was “no other evidence in the record to
support the ALJ’s [RFC] finding besides the non-treating physician’s assessment” that
“assessment alone cannot be considered substantial evidence in the face of the conflicting
assessment of a treating physician.” Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999). Here,
however, there is other medical evidence in the record to support the ALJ’s RFC beyond Dr.
McCall’s assessment, and there is no conflicting assessment from a treating physician.
Accordingly, Jenkins is distinguishable.
3 Berutti argues “the new regulation specifically requires the ALJ to consider examining and
treating relationship.” Doc. 14, p. 4 n.2. The medical source’s relationship with the claimant is
contained in paragraph (c)(3) of the regulations. 20 C.F.R. § 404.1520c(c)(3). However, the
2017 regulation specifically states, “[w]e may, but are not required to, explain how we
considered the factors in paragraphs (c)(3) through (c)(5) of this section, as appropriate, when we
articulate how we consider medical opinions and prior administrative medical findings in your
case record.” Id. § 404.1520c(b)(2). Accordingly, the ALJ was not required to explain Dr.
McCall’s relationship with Berutti.
In the decision, the ALJ evaluated Dr. McCall’s opinions for both supportability and
consistency. Tr. 23-24. The ALJ found Dr. McCall’s opinions were supported by the record
because Dr. McCall provided specific references to relevant objective medical evidence in
forming her opinions. Tr. 24; Tr. 92-94 (Dr. McCall’s explanation supporting her RFC
recommendation with references to medical events and records). Specifically, the ALJ found

that Dr. McCall relied on Berutti’s long history of chronic knee and back pain, unremarkable
physical exam findings, x-ray imaging and exams showing joint stability in the knees and ankles,
and other objective evidence. Tr. 24. These findings by Berutti’s doctors are documented
throughout the record and included in the ALJ’s decision. E.g., Tr. 18 (discussing Dr. Cornett’s
medical findings, Dr. Malik’s EMG exam results, Dr. Bleazard’s work restrictions, and Dr.
Cantrell’s clinical impressions and treatment notes); Tr. 19 (discussing Dr. Paul’s consultation
notes and x-ray imaging and Dr. Ballard’s MRI imaging review); Tr. 20 (discussing Dr.
Boyajian-Oneill’s evaluation notes). The doctors reported mostly normal exam findings. E.g.,
Tr. 691 (reassuring Berutti that her x-rays “look appropriate”); Tr. 710 (“Full range of motion

and muscle strength was normal in the upper and lower extremities bilaterally.”); Tr. 796
(recording a “slight deviation” of a nerve root and “mild” bilateral stenosis after a lumber MRI).
The ALJ’s conclusion that the objective medical evidence supported Dr. McCall’s RFC
recommendation is supported by the record as a whole. Tr. 23-24; 20 C.F.R. § 404.1520c.
As to consistency, the ALJ found Dr. McCall’s opinions were consistent with Dr.
Downing’s findings. Tr. 24. Dr. Downing, who was hired at Defendant’s request, examined
Berutti on December 15, 2018. Tr. 707. After examination, Dr. Downing stated Berutti was
“able to complete physical exam without significant limitation.” Tr. 710. He diagnosed a
history of osteoarthritis and degenerative joint disease, history of anxiety, and hypertension, and
found that Berutti’s muscle strength was normal, but that her range of motion in her right
shoulder was limited. Tr. 710-11. Berutti states that “[i]t does not appear Dr. Downing reviewed
any medical records,” but does not point to any regulations requiring a consultative examiner to
review medical records to complete a claimant’s in-person evaluation. Doc. 14, p. 4. Berutti
argues that Dr. Downing’s area of practice is radiology, but he “apparently did not, however,

review any x-rays or MRIs.” Id. Again, Berutti does not point to any regulations requiring that a
consultative examiner have a particular area of practice or review certain objective evidence to
complete the evaluation.
Finally, Berutti claims that thirty days after Dr. Downing’s exam, Hawkin’s and Speed’s
tests were positive, and MRIs showed tendon tears. She argues Dr. Downing’s exam findings
were not “normal” such that the ALJ’s finding of Dr. Downing’s opinions as consistent with Dr.
McCall’s opinions is incorrect. Doc. 14, p. 5. However, Dr. McCall specifically stated that
Berutti had positive Hawkin’s impingent test and discomfort with Speed’s test and discussed the
January 2019 MRIs of both shoulders. Tr. 93-94. While Dr. Downing did not have the benefit

of this information, Dr. McCall was aware of and incorporated the information into her RFC
recommendation. Id. This discrepancy in the information available to each doctor does not
justify finding the doctors’ opinions inconsistent with each other. Both doctors otherwise offered
consistent opinions, and the ALJ’s finding that Dr. McCall’s opinions were consistent with Dr.
Downing’s findings is supported by the record.
Ultimately, the ALJ found Dr. McCall’s opinions were “persuasive,” Tr. 24, and
incorporated her recommendations into the RFC. Under the 2017 regulations, Dr. McCall’s
opinions constitute substantial evidence, and the ALJ appropriately evaluated her opinions based
on the supportability and consistency factors. 20 C.F.R. § 404.1520c.
Berutti also takes issue with the ALJ’s characterization of Dr. McCall’s specialization. In
the decision, the ALJ stated Dr. McCall was a “specialist.” Tr. 23. Dr. McCall’s area of practice
is listed as “adolescent medicine” and Berutti contends that specialization is inapplicable to her
because she is 53 years old. Doc. 12, p. 23. The social security regulations state that an ALJ
may consider “evidence showing a medical source has familiarity with the other evidence in the

claim or an understanding of our disability program’s policies and evidentiary requirements.” 20
C.F.R. § 404.1520c(c)(5). Looking at the context of the ALJ’s statement, the ALJ concluded Dr.
McCall “is a specialist and she is familiar with the program rules.” Tr. 23. It is unclear from this
statement whether the ALJ understood Dr. McCall to be an orthopedic specialist, or to be a social
security regulations specialist. However, because considering a medical source’s specialization
or understanding of the disability program’s policies are not required for the ALJ’s analysis, the
Court finds that the ambiguity and deficiency in opinion-writing technique does not require
remand. Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008) (internal quotations omitted)
(holding that “an arguable deficiency in opinion-writing technique does not require us to set

aside an administrative finding when that deficiency had no bearing on the outcome”).
As to Berutti’s argument that the ALJ should have further developed the record by
obtaining an opinion from an examining or treating physician, or an expert with orthopedic
expertise, the Court finds the ALJ did not have a duty to further develop the record. Further
development was unnecessary because the ALJ’s RFC determination was properly based on Dr.
McCall’s opinions and the objective evidence in the record provided by Berutti’s doctors.
Buford v. Colvin, 824 F.3d 793, 797 (8th Cir. 2016) (finding no duty to further develop the
record where “medical assessments of state agency medical consultants as to [the claimant’s]
limitations are of record and were expressly considered by the ALJ”); Martise v. Astrue, 641
F.3d 909, 926-27 (8th Cir. 2011) (holding that the ALJ is required to order further medical
examinations only if the existing medical record does not provide sufficient evidence to
determine whether the claimant is disabled); Hilliard, 964 F.3d at 763 (“[A]n ALJ is permitted to
issue a decision without obtaining additional medical evidence so long as other evidence in the
record provides a sufficient basis for the ALJ’s decision.”) (internal citation omitted). The ALJ

did not err by failing to further develop the record and remand is not warranted on this basis.
ii. Work History
Berutti argues that the ALJ failed to evaluate her work history. Doc. 12, p. 24. This
argument appears to have two parts: first, that the ALJ failed to consider Berutti’s consistent
work history as a favorable factor in the credibility determination, and second, that the ALJ
impermissibly punished Berutti for seeking work after her alleged onset date of disability.
On the first point, Berutti argues that the “ALJ failed to consider the fact that Berutti has
a long and steady work history with consistent wages for at least 15 years prior to her onset date
of disability.” Doc. 12, p. 24; see also Nunn v. Heckler, 732 F.2d 645, 648 (8th Cir. 1984) (“[A]

claimant with a good work record is entitled to substantial credibility when claiming an inability
to work because of a disability.”). In assessing a claimant’s credibility, the ALJ considers
several factors, including the claimant’s daily activities, the duration, intensity, and frequency of
pain, the dosage, effectiveness and side effects of medication, any functional restrictions, and
work history. Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008); Polaski v. Heckler, 739 F.2d
1320, 1322 (8th Cir. 1984). However, the ALJ “need not explicitly discuss each” factor. Goff v.
Barnhart, 421 F.3d 785, 792 (8th Cir. 2005).
As to Berutti’s credibility, the ALJ found that Berutti’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however [her]
statements concerning the intensity, persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other evidence in the record.” Tr. 17. The
ALJ discussed many of the factors outlined by the Eighth Circuit in Polaski. 739 F.2d at 1322.
For example, the ALJ detailed the frequency of Berutti’s pain as documented in her
appointments with doctors, as well as the effectiveness of her medications. E.g., Tr. 17 (finding

Berutti stated she was not in pain when using medications); Tr 297 (Berutti reporting her pain is
“better, small amounts of pain”); Finch, 547 F.3d at 935 (holding that factors to consider in
evaluating credibility include frequency of pain and effectiveness of medication, among others).
The ALJ further found that Berutti did laundry, vacuumed, drove, ran errands, grocery
shopped, and mowed the yard, and that these activities were inconsistent with Berutti’s claims of
pain in her shoulder, back, and knees. Tr. 20-22; see Goff, 421 F.3d at 792 (finding that the
claimant’s ability to work part-time as a kitchen aide, vacuum, wash dishes, do laundry, cook,
shop, drive, and walk were inconsistent with the claimant’s subjective complaints); Medhaug v.
Astrue, 578 F.3d 805, 817 (8th Cir. 2009) (“[A]cts such as cooking, vacuuming, washing dishes,

doing laundry, shopping, driving, and walking, are inconsistent with subjective complaints of
disabling pain.”). Evidence of daily activities in and of itself is not sufficient to find that a
claimant is not disabled but is properly considered in the credibility determination. Finch, 547
F.3d at 935 (listing factors to be considered); Goff, 421 F.3d at 792 (finding daily activities
inconsistent with allegations of pain, which diminished credibility); Singh v. Apfel, 222 F.3d 448,
453 (8th Cir. 2000) (holding that the fact a claimant can engage in personal activities does not
equate to substantial evidence that the claimant can engage in substantial gainful activity). The
ALJ properly evaluated Berutti’s credibility based on her daily activities, dosage and
effectiveness of medication, and her functional restrictions. Moore v. Astrue, 572 F.3d 520, 525
(8th Cir. 2009) (finding no error where the ALJ did not evaluate the claimant’s work history but
evaluated other factors to conclude the claimant was not credible); Goff, 421 F.3d at 792 (finding
that the ALJ need not make a specific finding as to each credibility factor). Failure to also
explicitly discuss Berutti’s steady employment history as a factor supporting her credibility was
not required, and remand is not warranted on this basis.

On the second point, Berutti argues that the ALJ should not penalize her for attempting to
make ends meet by working a part-time job prior to an award of benefits. Doc. 12, p. 25. The
ALJ found that Berutti had “started a new job recently at Goodwill.” Tr. 17. The ALJ also
stated that Berutti’s February 1, 2015 alleged onset date of disability was inconsistent with
evidence that she lifted a resident at work in July 2015.4 Id. “Working generally demonstrates
an ability to perform a substantial gainful activity.” Goff, 421 F.3d at 792 (citation omitted).
Berutti testified at the hearing that her employment with Goodwill would be on a part time basis.
Tr. 36-37. She stated she could not engage in full time employment due to the pain in her knees,
which bother her when standing for long periods. Id. The ALJ accounted for this information

when forming the RFC with 6-hour standing limitations, as recommended by Berutti’s doctor.
Tr. 16, 22. The Court finds that the ALJ did not penalize Berutti for seeking part-time

4 Berutti argues that the “date on which the patient was lifted is not apparent from the record”
and “[i]t appears the lifting of the resident actually occurred in 2014.” Doc. 12, p. 25. Berutti
cites to two pages in the record documenting February 26, 2014 and May 18, 2014 incidents in
which Berutti lifted residents and strained her left knee and lower back. 322, 360. Defendant
contends “the record from July 2015 plainly states the injury occurred in this month.” Doc. 13,
p. 17. The ALJ cited to a treatment record from Meritas Health, which clarifies the date of injury
as July 16, 2015 and the date of the appointment as July 20, 2015. Tr. 17, 301. A note from
Excelsior Springs Hospital signed on July 16, 2015 stated Berutti would be able to return to work
on July 17, 2015 but would not be able to lift more than thirty pounds until released by her
doctor for regular duty. Tr. 303. The Court finds that Berutti suffered more than one injury from
lifting a resident, as show in the record, but that one of these occasions occurred in July 2015.
Accordingly, the ALJ’s conclusion that Berutti continued to work after her February 1, 2015
alleged onset date of disability is supported by the record.
employment or continuing to work after her alleged onset date of disability, and instead used this
information to support the finding that Berutti’s subjective complaints of pain were inconsistent
with the evidence of record. Tr. 23 (finding the RFC was supported in part by Berutti’s ability to
“seek work in retail environments such as Lowe’s during the relevant period”); Medhaug, 578
F.3d at 816 (holding the ALJ properly considered the claimant’s employment positions

maintained after the alleged onset of disability as part of the credibility analysis, and finding the
claimant not credible in part because the employment was inconsistent with the claimant’s
allegations of limitations and pain). Remand is not warranted on this basis.
iii. Pain Medication
Berutti argues that the ALJ’s conclusion that Berutti’s history of pain medication was
inconsistent with her allegations of disability is not supported by substantial evidence because
the “ALJ was operating under the mistaken impression Berutti was not taking Norco or
prescribed pain medications” which “is factually incorrect and clearly influenced his decision.”
Doc. 12, p. 26. Specifically, Berutti argues the ALJ failed to understand that she was

consistently using Norco because the ALJ misread a single document in the record showing
Norco use. Id. at 25-26. The document is a May 2019 medical record from Dr. Boyajian-Oneill
stating Berutti was taking Norco. Tr. 796-97. The Court agrees the ALJ misread this document
when he stated Dr. Boyajian-Oneill “noted the claimant is not taking her Norco at that time.” Tr.
20.
The Court disagrees that this mistake indicates that the ALJ did not appreciate that
Berutti used Norco. In fact, the ALJ found that Berutti “demonstrated an ability to manage her
chronic pain in her shoulders, back and knees for years with use of only Norco, at times.” Tr.
21; see also Tr. 18 (noting that Dr. Cantrell prescribed Norco as needed to manage pain). The
ALJ continued, “she could manage her right knee pain with use of Norco through the date of her
knee replacement surgery” and she “has a long history of knee and back pain waxing and
waning, over the years, managed with Norco, at times, such that she could work” as a CNA and
remain active in her daily activities. Tr. 21. These findings demonstrate that the ALJ was aware
Berutti used Norco on multiple occasions for multiple reasons.

The record confirms that Berutti used Norco and other medications throughout the period
of claimed disability. E.g., Tr. 449 (documenting Motrin and pain medication usage); 643-44,
647; 707 (finding that “[m]edications help the symptoms”); Tr. 796 (documenting daily Norco
use with “some improvement of pain” in May 2019). The record also contains evidence of times
Berutti was not using Norco for pain management. E.g., Tr. 253 (Berutti listing the medications
she used in October 2018, and not including Norco in that list); Tr. 708 (Dr. Downing listing
Berutti’s medications, and not including Norco in that list); Tr. 788 (Dr. Ballard listing Norco
under medications not currently being taken in January 2019, but prescribing Norco for future
use). The ALJ pointed to evidence in the record showing Norco improved Berutti’s pain and

concluded that this evidence was inconsistent with her allegations of pain and disability. Tr. 21.
Such a conclusion is within the ALJ’s authority and is supported by substantial evidence in the
record. Renstrom v. Astrue, 680 F.3d 1057, 1066 (8th Cir. 2012) (finding no error with the
ALJ’s credibility determination where the claimant’s symptoms improved with treatment);
Buford, 824 F.3d at 797; Wildman v. Astrue, 596 F.3d 959, 965 (8th Cir. 2010) (“If an
impairment can be controlled by treatment or medication, it cannot be considered disabling.”).
iv. Delayed Surgery
Berutti contends that the ALJ erred by finding her delayed surgery suggested her
symptoms were not as severe as she alleged. Doc. 26, p. 26. The record reflects that Berutti fell
in August 2018 and injured her shoulder. Dr. Ballard recommended shoulder surgery in March
2019. Tr. 790. However, thereafter Berutti’s orthopedic surgeon put “surgical intervention on
hold due to smoking and blood pressure medications.” Tr. 796, 800. The ALJ found Berutti “is
a candidate for rotator cuff surgery, yet she has not quit smoking and has sought only
conservative care, if any, since her [rotator cuff tendon tears] diagnosis, suggesting her

symptoms are not as severe as she has alleged.” Tr. 21. Berutti argues that she was taking steps
to stop smoking, and that the delayed surgery “in no way indicates her symptoms were not as
severe as alleged.” Doc. 12, p. 26. At the time of the hearing, Berutti had not undergone the
shoulder surgery. Tr. 39.
Here, the record contains evidence that Berutti was trying to stop smoking. Tr. 744
(medical note documenting Berutti “is trying to quit smoking”); 785 (documenting a 2016
cessation counseling for tobacco use). The record also includes evidence that Berutti’s shoulder
symptoms were less than she described. For example, four months after Berutti’s shoulder
injury, Dr. Downing found limited range of motion in the right shoulder but concluded Berutti

was without significant limitation. Tr. 709-10. Physical therapy, which is considered a more
conservative approach than surgery, was also recommended. Martsolf v. Colvin, 2017 WL
77424, at *5 (W.D. Mo. Jan. 9, 2017) (finding the physical therapy constitutes a conservative
treatment). The Court finds that while potential conflicting evidence in the record exists, the
ALJ’s credibility determination regarding Berutti’s delayed surgery is supported by substantial
evidence in the record. Hilliard, 964 F.3d at 762 (holding that the Court “may not reverse the
ALJ because substantial evidence exists in the record that would have supported a contrary
outcome”); Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007) (“The credibility of a claimant’s
subjective testimony is primarily for the ALJ to decide, not the courts.”).
v. Treatment History
Finally, Berutti argues that the ALJ’s reliance on lapses in treatment, conservative
treatment, and Berutti’s failure to comply with physical therapy constitutes error. Doc. 12, p. 27.
Berutti points to SSR 16-3p which instructs:
[I]f the frequency or extent of the treatment sought by an
individual is not comparable with the degree of the individual’s
subjective complaints, or if the individual fails to follow prescribed
treatment that might improve symptoms, we may find the alleged
intensity and persistence of an individual’s symptoms are
inconsistent with the overall evidence of record. We will not find
an individual’s symptoms inconsistent with the evidence in the
record on this basis without considering possible reasons he or she
may not comply with treatment or seek treatment consistent with
the degree of his or her complaints.

The regulations provide a list of factors for the ALJ to consider when evaluating a claimant’s
treatment history. SSR 16-3p. Some of these factors include structuring activities to minimize
symptoms to a tolerable level, receiving periodic treatment because symptoms have reached a
plateau, refusing medications due to side effects, and declining treatment due to cost. Id.
As to compliance with physical therapy, Berutti argues she completed physical therapy
for her low back, foot, and knee, and did not complete physical therapy for her shoulder. Doc.
12, p. 27. The ALJ’s findings are consistent with this distinction. The ALJ found that “physical
therapy and orthotics” resulted in “some improvement in her [foot] symptoms.” Tr. 18.
However, the ALJ also found that “physical therapy discharged her from care secondary to her
noncompliance and her frequent appointment cancellations… suggesting her [shoulder]
symptoms [were] not as severe as she alleged.” Tr. 19. The Court finds that evidence of both
compliance and noncompliance with physical therapy exists. For example, the record contains
instances in which Berutti failed to participate in physical therapy. E.g., Tr. 420 (Dr. Bleazard
noting that “[a]t this time, she has failed conservative treatments including orthotics, physical
therapy, and stretching.”); Tr. 591 (Berutti electing to discontinue physical therapy); Tr. 778
(discharging Berutti from physical therapy for non-compliance). However, the record also
includes evidence of Berutti’s compliance with physical therapy. E.g., Tr. 435 (noting Berutti
has been doing exercises at home); Tr. 469 (attending physical therapy to increase range of
motion and strength); Tr. 588 (attending physical therapy to improve shoulder mobility).

Despite some evidence of compliance, the ALJ’s reliance on the evidence of noncompliance is
supported by the record as a whole and does not constitute error. Hilliard, 964 F.3d at 762
(holding that the district court “may not reverse the ALJ because substantial evidence exists in
the record that would have supported a contrary outcome”).
The Court next addresses whether the ALJ properly relied on conservative treatments and
lapses in treatment. The record shows that Berutti underwent surgery for her knee, which would
not be considered conservative, but physical therapy and pain medication treatments for her
back, foot, and shoulder would be considered conservative. See Milam v. Colvin, 794 F.3d 978,
985 (8th Cir. 2015) (finding that the ALJ properly considered the claimant’s treatment history of

exercises as relatively conservative); Martsolf, 2017 WL 77424, at *5 (finding anti-
inflammatories and physical therapy to constitute conservative treatments that did not support a
finding of disability). Berutti was recommended physical therapy, stretching, and anti-
inflammatories, a compression sleeve, and applying ice, water aerobics, and walking for
exercise, all conservative treatments. Tr. 39, 395, 422, 424, 691; 798. The ALJ found that
Berutti “sought only conservative care” for her shoulder “suggesting her symptoms are not as
severe as she has alleged.” Tr. 21. The ALJ found Berutti’s right knee improved after surgery
“with only conservative medical care, thereafter.” Id.
As to lapses in treatment, the ALJ explained that “follow up visits with Dr. Cantrell in
2018 and 2019 are sparse, suggesting her back, shoulder and foot pain stabilized as evident in her
significantly reduced level of complaints and treatment following her knee replacement in
February 2017.” Tr. 19. The ALJ found that Berutti “did not return to physical therapy or
report any significant changes in her symptoms… suggesting her acute increase in her shoulder

symptoms and back pain had stabilized, evident in her use of Motrin over Norco, and are not as
severe as she has alleged.” Tr. 20 (further finding that “her treatment remains conservative, and
her complaints and treatment for severe pain subside, after prescribed rest from work”).
In making the above findings, the ALJ did not explicitly list or discuss the factors
contained in SSR 16-3p: structuring activities to minimize symptoms to a tolerable level,
receiving periodic treatment because symptoms have reached a plateau, refusing medications due
to side effects, and declining treatment due to cost. The record shows that some of these factors
may have applied to Berutti’s circumstances. E.g., Tr. 691 (Berutti declining anti-
inflammatories because she has difficulty with them, and declining steroid injections because she

“received shots in the past and does not like them”); Tr. 635 (Berutti reporting she was
uninsured); Tr. 93 (Dr. McCall stating Berutti “had little follow up” between 2016 and 2018).
In Martsolf v. Colvin, the claimant similarly argued that the ALJ failed to consider the
SSR 16-3p factors and pointed to places in the record that could suggest support for the listed
factors. Martsolf, 2017 WL 77424, at *6. The Court held that despite these “isolated spots in the
record that could suggest support for” Martsolf’s position, “the ALJ’s decision regarding
credibility of, or the weight given to, Martsolf’s subjective complaints is well-supported by
substantial evidence on the whole record, including Martsolf’s admissions, and therefore will not
be disturbed.” Id. Here, too, the ALJ’s decision is supported by substantial evidence on the
whole record and Berutti has failed to point to any case law showing that an ALJ’s failure to
explicitly evaluate the factors in SSR 16-3p under these circumstances warrants remand. See
Docs. 12, 14; Lawson v. Colvin, 807 F.3d 962, 965 (8th Cir. 2015) (finding that if a claimant’s
pain is controlled by treatment or medication, it is not considered disabling); Edwards v.
Barnhart, 314 F.3d 966, 967 (8th Cir. 2003) (holding that the ALJ may discount disability

claimant’s subjective complaints of pain based on the claimant’s failure to pursue regular
medical treatment). Remand is not warranted on this basis.
IV. Conclusion
The ALJ’s decision as to Berutti’s physical RFC is supported by substantial evidence.
However, because the ALJ’s decision as to the mental RFC is not supported by substantial
evidence, the Court remands for further development of the record consistent with this Order.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge

Dated: April 16, 2021
Jefferson City, Missouri

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10241860. Public record. Not legal advice.