# McIntosh v. Saul

> District Court, W.D. Missouri · March 2, 2022

URL: https://www.frixlaw.com/law-library/cases/10242292

## Case

- **Court:** District Court, W.D. Missouri
- **Decided:** March 2, 2022
- **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/10242292

## How later opinions describe it (automated extraction)

- holding it was proper for ALJ to credit opinion based upon psychological testing that was explained in a comprehensive report rather than two opinions that constituted conclusory checklist forms

## Opinion text

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISON

SARAH E. MCINTOSH

Plaintiff,

v. Case No. 4:21-cv-0377-NKL

KILOLO KIJAKAZI,
Acting Commissioner of Social Security,

Defendant.

ORDER
Sarah McIntosh appeals the final decision of the Commissioner of the Social Security
Administration (the “Commissioner”) denying her application for disability insurance benefits
under Title II of the Social Security Act. Doc. 1 (Social Security Complaint); Doc. 14 (McIntosh’s
Social Security Brief). McIntosh argues that the Commissioner’s determination that McIntosh was
no longer disabled was not supported by substantial evidence. For the reasons stated below, the
decision is remanded for the award of benefits.
I. BACKGROUND
A. Medical History
McIntosh started having frequent headaches in her early teens. Tr. 697. In 2002, McIntosh
was diagnosed with a level 1 brain tumor in her brain stem and hydrocephalus. Tr. 667. The tumor
is inoperable due to its location, but a shunt was placed to alleviate the symptoms. Tr. 697. The
shunt failed, and a shunt revision surgery was performed in 2003. Id. McIntosh also underwent
six weeks of radiation treatment in 2005. Id. The tumor is stable and has not measurably grown
since 2010. Tr. 544-45, 554-555, 641-42. In April and May of 2003, Doctors Maria Korth and
Kristi Morehead performed a barrage of psychological tests on McIntosh that showed her
processing speed was well below average and her abstract reasoning was significantly impaired.
Tr. 483-92. They recommended McIntosh be evaluated for special education services, given extra
time on tests, and her assignment lengths decreased. Tr. 486.

B. Previous Disability Determinations
On May 1, 2005, McIntosh was found disabled, with a disability onset date of January 1,
2004, because her brain tumor caused headaches, seizures, and cognitive disorders. Tr. 693. On
June 24, 2014, the Commissioner determined that McIntosh’s disability ended on June 1, 2014,
because her tumor was stable and had not caused any severe limitations. Tr. 116-23. McIntosh
requested that an Administrative Law Judge (“ALJ”) review the decision. Tr. 129.

C. The ALJ’s Decision1
The ALJ determined that McIntosh had never engaged in substantial gainful activity. Tr.
693-94. The ALJ found McIntosh has the following severe impairments: tectal glioma (brain
tumor) with hydrocephalus status post ventriculoperitoneal shunt placement, a cognitive disorder,
anxiety, and major depressive disorder. Tr. 694-95. Additionally, McIntosh suffered from foot
pain, foot pronation syndrome, and obesity, but these impairments were not severe. Id.

The ALJ found that McIntosh’s condition had improved since the original disability
determination, and the improvement was related to her ability to work. Consequently, the ALJ
determined that McIntosh had the residual functional capacity (“RFC”) to perform the following

1 This is the third time the ALJ has determined that McIntosh was no longer disabled. The Appeals
Council remanded the ALJ’s original decision for resolution of various issues. Tr. 146-48. This
Court remanded the ALJ’s second decision because the ALJ improperly gave Dr. Niileksela and
Ms. Sumpter’s opinion little weight because the opinion did not mirror the function-by-function
analysis used by the Social Security Administration. Tr. 801.
after June 1, 2014:
lift and carry ten pounds frequently and twenty pounds occasionally, sit for six
hours out of an eight-hour workday, stand for six hours out of an eight-hour
workday, and walk for six hours out of an eight-hour workday. She could
occasionally balance, stoop, and climb ramps and stairs, but she should never climb
ladders, ropes, or scaffolds. She should avoid concentrated exposure to unprotected
heights, moving mechanical parts, extreme cold, extreme heat, or vibration. She is
able to perform simple, routine, and repetitive tasks, but not at a production rate
pace.

Tr. 696. The ALJ asked the Vocational Expert (“VE”) whether “jobs existed in the national
economy for an individual with [McIntosh’s] age, education, work experience, and RFC.” Tr.
750-51. The VE testified that work existed in the national economy for someone with McIntosh’s
characteristics. Id. Based on the VE’s testimony, the ALJ determined that McIntosh’s disability
ceased on June 1, 2014. The Appeals Council affirmed the ALJ’s decision, and McIntosh appeals
the ALJ’s decision to this Court.
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.’” Alhilfy v. Saul, No. 4:20-CV-00235-NKL, 2021 WL 462122, at *2 (W.D.
Mo. Feb. 9, 2021) (quoting Brown v. Colvin, 825 F.3d 936, 939 (8th Cir. 2016)). ‘“Substantial
evidence’ is less than a preponderance but enough that a reasonable mind could find the evidence
adequate to support the ALJ’s conclusion.” Id. (citing Milam v. Colvin, 794 F.3d 978, 983 (8th
Cir. 2015)). Additionally, since McIntosh was previously found disabled, the burden is on the
Commissioner to show that McIntosh is no longer disabled due to her medical improvement.
Nelson v. Sullivan, 946 F.2d 1314, 1315 (8th Cir. 1991).
III. DISCUSSION
A. Whether Substantial Evidence Supports the ALJ’s Rejection of Ms. Sumpter and
Dr. Niileksela’s Opinion Regarding McIntosh’s Processing Speed Limitation
McIntosh argues that the ALJ’s rejection of Ms. Sumpter and Dr. Niileksela’s opinion that
McIntosh’s processing speed was impaired was not supported by substantial evidence. When
evaluating the weight to be given a medical opinion, the ALJ must “apply the following factors:
(1) whether the source has examined the claimant; (2) the length, nature, and extent of the treatment
relationship and the frequency of examination; (3) the extent to which the relevant evidence,
‘particularly medical signs and laboratory findings,’ supports the opinion; (4) the extent to which
the opinion is consistent with the record as a whole; (5) whether the opinion is related to the
source’s area of specialty; and (6) other factors ‘which tend to support or contradict the opinion.’”

Owen v. Astrue, 551 F.3d 792, 800 (8th Cir. 2008) (citing 20 C.F.R. § 404.1527(d)).
Ms. Sumpter and Dr. Niileksela performed a psychoeducational assessment to determine
if McIntosh’s cognitive abilities had improved since 2003. Tr. 660-75. From January 31, 2017,
to April 11, 2017, they examined McIntosh during five different two-hour sessions. They
performed five different psychological tests that compared McIntosh’s cognitive ability to her
peers.2 One test showed McIntosh’s general intellectual ability was higher than only 17% of her
peers. Tr. 662. Furthermore, the test showed McIntosh’s processing speed score—defined as the
ability to perform simple tasks quickly—was in the “Very Low range” and higher than only 1%
of her peers. Id.3

2 Ms. Sumpter and Dr. Niileksela provided the test results in an appendix. Tr. 671-75.
3 The processing speed test had two components. McIntosh scored in the bottom 7% of her peers
on a “Letter Pattern Matching” test and in the bottom 2% of her peers on a “Pair Cancellation”
test. Tr. 672.
Ms. Sumpter and Dr. Niileksela performed follow-up tests that showed McIntosh’s
processing speed score was in the “Low Average range” and higher than 23% of her peers. Tr.
663.4 Additionally, in a test of her academic ability, McIntosh did better on portions of the
assessment that were not timed. Tr. 665. Ms. Sumpter and Dr. Niileksela concluded based on the

entirety of their findings that McIntosh’s processing speed was in the “Very Low range,” had not
improved since 2003, was an area of concern, and her processing speed “appear[s] to have a
significant impact on her daily living skills, especially those related to employment.” Tr. 668-69.
The ALJ gave the processing speed limitation only “some weight” because (1) Ms.
Sumpter and Dr. Niileksela interacted with McIntosh five times; (2) the opinions were contradicted
by McIntosh’s daily activities; (3) McIntosh had earned an associate’s degree; and (4) the opinion
was contradicted by other psychological evaluations. Tr. 705. As discussed below, none of the
listed reasons, alone or in combination, constitute substantial evidence that supports the ALJ’s
determination.
1. Number of Evaluations
McIntosh argues that the ALJ cannot discredit Ms. Sumpter and Dr. Niileksela’s opinion

because they evaluated McIntosh only five times while giving “great weight” to the opinions of
multiple doctors who had never examined McIntosh. The ALJ’s decision to discredit Ms. Sumpter
and Dr. Niileksela’s opinion because of the number of evaluations was not supported by substantial
evidence for two reasons. First, the ALJ must be consistent with how he treats opinion evidence.
Taylor ex rel. McKinnies v. Barnhart, 333 F. Supp. 2d 846, 856 (E.D. Mo. 2004) (noting that the
ALJ may not “pick and choose only evidence in the record buttressing his conclusion.”); Murphy

4 The processing speed test had two different components. McIntosh scored in the bottom 16% of
her peers on a “Symbol Search” test and in the bottom 37% of her peers on a “Coding” test. Tr.
672.
v. Berryhill, 2018 WL 6610287, at *4 (N.D. Ill. Nov. 28, 2018) (“[I]t is important that ALJs employ
the ‘same metrics’ and the ‘same level of rigor’ in evaluating multiple opinions.”). Since the ALJ
gave the opinions of multiple other doctors who had never seen or examined McIntosh “great
weight” (Tr. 701-02 (ALJ crediting opinions of Dr. Wilkinson, Dr. Rosenshield, and Dr.

Schulman, who never examined McIntosh); Tr. 702-03 (same with the opinion of Dr. Tawadros)),
the ALJ’s decision to give Ms. Sumpter and Dr. Niileksela’s opinion only “some weight” cannot
properly be based on the limited number of evaluations. See Holdeman v. Kijakazi, No. 20-CV-
729-NKL, 2021 WL 6062368, at *5 (W.D. Mo. Dec. 22, 2021) (holding the ALJ must evaluate
medical opinions consistently).
Second, while the number of evaluations a medical source performs can be relevant to the
weight of their opinion, the social security regulations do not require a doctor to evaluate a claimant
a certain number of times before their opinion can be adopted. See 20 C.F.R. § 404.1527.
2. Daily Activities and Associate’s Degree
An ALJ may discredit a medical opinion when it conflicts with a claimant’s daily activities.
Turpin v. Colvin, 750 F.3d 989, 994 (8th Cir. 2014). McIntosh’s sister reported that in 2014

McIntosh could cook frozen foods, perform light cleaning, and take care of her finances. Tr. 379-
89. Additionally, McIntosh stated she can dress and bathe herself, drive, shop, cook, and clean the
dishes. Tr. 515. However, McIntosh’s ability to perform simple tasks at her own pace over the
course of an entire day does not show that she could perform similarly simple tasks at the rate that
would be required for her to maintain employment. Nowling v. Colvin, 813 F.3d 1110, 1122 (8th
Cir. 2016) (“Participation in activities with family or activities at home and at ‘your own pace’
may not reflect an ability to perform at work.”); Hughes v. Astrue, 705 F.3d 276, 278 (7th Cir.
2013) (“The critical differences between activities of daily living and activities in a full-time job
are that a person has more flexibility in scheduling the former than the latter . . . .”); Draper v.
Barnhart, 425 F.3d 1127, 1131 (8th Cir. 2005) (“[T]o find a claimant has the residual functional
capacity to perform a certain type of work, the claimant must have the ability to perform the
requisite acts day in and day out, in the sometimes competitive and stressful conditions in which
real people work in the real world.”).

Relatedly, the ALJ stated that McIntosh’s ability to earn an associate’s degree contradicts
the allegation that her processing speed significantly impacts her ability to work. However, when
earning her associate’s degree, McIntosh received accommodations that accounted for her
processing speed limitation—notes were provided to her, and she was given extra time to complete
tests. Tr. 456. Even then, McIntosh struggled to complete assignments on time. Id. When the
accommodations were no longer provided, McIntosh was unable to complete additional college
classes. Tr. 661.5 McIntosh’s inability to take her own notes or complete tests without extra time
does not justify discrediting Dr. Niileksela and Ms. Sumpter’s opinion that McIntosh’s processing
speed impairs her ability to work.
The Commissioner cites to Tindell v. Barnhart, 444 F.3d 1002, 1004 (8th Cir. 2006), where

the Eighth Circuit held that a claimant attending college classes supported the ALJ’s determination
that the claimant was not disabled. However, Tindell is distinguishable because there is no
discussion of claimant needing accommodations.
3. Opinions of Dr. Kadar and Dr. Mintz
The ALJ discredited McIntosh’s processing speed limitation because during Dr. Mintz’s
2014 psychological consultative evaluation and Dr. Kadar’s 2018 examination, McIntosh

5 The ALJ was required to consider the need for these accommodations. Nelson v. Saul, 413 F.
Supp. 3d 886, 915-16 (E.D. Mo. 2019) (stating an ALJ must consider the entirety of the record
and cannot pick and choose evidence to buttress his conclusions) (collecting sources).
“displayed good cognitive functioning and intact memory and attention.” Tr. 705. When two
medical opinions contradict, the ALJ is entitled to resolve the contradiction by discrediting the
opinion he finds less persuasive. See Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (“An
ALJ may ‘discount or even disregard the opinion of a treating physician where other medical

assessments are supported by better or more thorough medical evidence.’” (quoting Prosch v.
Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000))). The Court will not disturb the ALJ’s decision if it
is “supported by good reasons and substantial evidence.” Johnson v. Colvin, 788 F.3d 870, 872
(8th Cir. 2015) (quoting Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003)).
Dr. Mintz performed a mental status examination of McIntosh on June 3, 2014. Tr. 514.
He determined that McIntosh appeared to function within the average intellectual range; she
displayed no indications of a cognitive disorder; she could make simple comparisons; and her
immediate attention span capability appeared intact because she could perform basic addition,
subtraction, and multiplication and recite the alphabet. Tr. 515-16. Dr. Mintz determined
McIntosh has no mental impairments outside of her generalized anxiety disorder with panic attack

symptoms.
Dr. Kadar performed an orthopedic evaluation of McIntosh in September of 2018. Tr. 682.
During that evaluation he noted that McIntosh appeared anxious, her recent and remote memory
was intact, and she had good insight and cognitive function. Tr. 682-83. It is unclear how Dr.
Kadar came to his conclusions.
The ALJ’s decision to discredit Dr. Niileksela and Ms. Sumpter’s opinion based on Dr.
Mintz’s, and Dr. Kadar’s opinions is not supported by substantial evidence because substantial
evidence does not support the ALJ’s conclusion that Dr. Mintz and Dr. Kadar’s opinion were
worthy of more weight under the social security regulations.
Dr. Niileksela and Ms. Sumpter conducted multiple objective tests over the course of
numerous evaluations that examined McIntosh’s processing speed in no less than four ways and
compared her results to her peers. Their testing is more thorough than Dr. Mintz’s single
evaluation where he subjectively observed McIntosh performing simple arithmetic and reciting the

alphabet. Furthermore, it is unclear what testing Dr. Kadar performed during his physical
examination of McIntosh. Thus, Dr. Niileksela and Ms. Sumpter’s opinion regarding McIntosh’s
processing speed was better supported. 20 C.F.R. § 404.1527(c)(3) (“[T]he more a medical source
presents relevant evidence to support a medical opinion, particularly medical signs and laboratory
findings, the more weight we will give that medical opinion.”); Nishke v. Astrue, 878 F. Supp. 2d
958, 982, 984 (E.D. Mo. 2012) (holding it was proper for ALJ to credit opinion based upon
psychological testing that was explained in a comprehensive report rather than two opinions that
constituted conclusory checklist forms).
Second, Dr. Niileksela and Ms. Sumpter’s opinion is more consistent with the record. The
only other evaluation of McIntosh’s processing speed is the 2003 evaluation by Dr. Maria Korth

and Dr. Kristi Morehead that similarly found that McIntosh’s processing speed was “well below
average.” Tr. 484-85, 487, 489 (finding that McIntosh’s processing speed was in the bottom 4th
percentile). Additionally, McIntosh’s inability to successfully attend college classes without
accommodations for her processing speed shows that her processing speed impairs her ability to
work. See supra Section III.A.2.; 20 C.F.R. § 404.1527(c)(4) (“[T]he more consistent a medical
opinion is with the record as a whole, the more weight we will give to that medical opinion.”).

IV. Whether Benefits Should Be Awarded on Remand
McIntosh argues that the ALJ should be ordered to grant benefits on remand. A court
should remand with an instruction to grant benefits when the record “overwhelmingly supports” a
finding of disability, and “further hearings would merely delay the receipt of benefits.” Pate-Fires
v. Astrue, 564 F.3d 935, 947 (8th Cir. 2009) (citation omitted).
As discussed above, the weight of the evidence, including the well-founded opinion of Dr.
Niileksela and Ms. Sumpter, other medical evidence, and McIntosh’s educational history, indicate

that McIntosh’s processing speed was in the “very low range.” Given the VE’s testimony on the
record that there would be no work available for one with a processing speed that was “lacking”
or in the “very low range” (Tr. 753), the record overwhelmingly supports a finding of disability.
See Jackson v. Bowen, 873 F.2d 1111, 1115 (8th Cir. 1989) (“The vocational expert testified that
if Jackson’s complaints were credible, then Jackson would not be able to perform any work.
Because the district judge found that the complaints were credible, he could grant benefits based
on the testimony of the expert.”); Crow v. Berryhill, No. 4:17-CV-2605 NAB, 2019 WL 1001211,
at *5 (E.D. Mo. Mar. 1, 2019) (awarding benefits when the VE’s response to a hypothetical
established that no work would be available); Meinders v. Barnhart, 195 F. Supp. 2d 1136, 1145
(S.D. Iowa 2002) (same).

V. CONCLUSION
For the reasons discussed above, the ALJ’s decision is REVERSED and the case is
REMANDED with an instruction to award benefits.

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

Dated: March 2, 2022
Jefferson City, Missouri

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10242292. Public record. Not legal advice.