Carneal v. Saul

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

PAULINE D. CARNEAL, )

)

Plaintiff, )

)

v. ) No. 4:21-00271-CV-RK

)

)

COMMISSIONER, SOCIAL )

SECURITY ADMINISTRATION; )

)

Defendant. )

ORDER

Before the Court is Plaintiff’s appeal brought under 42 U.S.C. § 405(g) seeking review of

Defendant Commissioner of Social Security Administration’s (“SSA”) 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 Plaintiff had the following severe impairments:

status post C5-6 disc arthroplasty and multilevel degenerative disc disease, bilateral carpal tunnel

syndrome with mild ulnar neuropathy, and lumbar spondylosis with degenerative disc at L1-2.

The ALJ also determined that Plaintiff has the following non-severe impairments: mild

degenerative disc disease of the thoracic spine, history of drug abuse, and anxiety. 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 416.967(b)

except she cannot climb ladders, ropes, or scaffolds, but can occasionally climb ramps and stairs.

She can engage in occasional stooping, crouching, and crawling but cannot perform overhead

reaching, pushing, or pulling bilaterally. The claimant can frequently perform tasks involving

handling and fingering. Although the ALJ found that Plaintiff does not have 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 contends the ALJ erred in failing to assess Plaintiff’s RFC on a

function-by-function basis, the ALJ’s RFC as to Plaintiff’s physical functional limitations is

unsupported by substantial evidence, and the Commissioner failed to sustain her burden at step

five. The Court will address each in turn.1

I. Function-by-Function Assessment

Plaintiff first argues the ALJ erred because she failed to assess the RFC on a function-by-

function basis and assessed the exertional level first. SSR 96-8P states, the “RFC assessment must

first identify the individual’s functional limitations or restrictions and assess his or her work-

related abilities on a function-by-function basis” and “[o]nly after that may RFC be expressed” by

exertional level of work. See also 20 C.F.R. § 404.1545(b) (instructing that the RFC should

identify limitations on a function-by-function basis). Sitting, walking, standing, pushing, and

1 The Court finds much of Defendant’s brief persuasive. Portions are incorporated without further

reference.

pulling are all listed in the regulations as physical work-related abilities. Id. However, the fact

that the ALJ omitted a discussion of functional abilities does not mean she did not consider them.

E.g., Beagley v. Berryhill, No. 5:17-06079-CV-RK, 2018 WL 4565461, at *3 (W.D. Mo. Sept. 24,

2018). “[A]n ALJ who specifically addresses the areas in which [s]he found a limitation and is

silent as to those areas in which no limitation is found is believed to have implicitly found no

limitation in the latter.” Brown v. Astrue, No. 4:09-CV-274–DJS, 2010 WL 889835, at *25 (E.D.

Mo. Mar. 8, 2010); see Depover v. Barhnart, 349 F.3d 563, 567-68 (8th Cir. 2003) (holding that

the fact that the ALJ made explicit findings only as to functions for which he found a limit

suggested he implicitly found no limits as to other functions).

Here, the ALJ limited Plaintiff to light work with additional exceptions. (Tr. 15.) The ALJ

noted she was relying on the definition of “light” work as contained in 20 C.F.R. § 416.967(b),

which provides as follows:

Light work involves lifting no more than 20 pounds at a time with frequent lifting

or carrying of objects weighing up to 10 pounds. Even though the weight lifted

may be very little, a job is in this category when it requires a good deal of walking

or standing, or when it involves sitting most of the time with some pushing and

pulling of arm or leg controls. To be considered capable of performing a full or

wide range of light work, you must have the ability to do substantially all of these

activities. If someone can do light work, we determine that he or she can also do

sedentary work, unless there are additional limiting factors such as loss of fine

dexterity or inability to sit for long periods of time.

From this, Plaintiff argues that it is impossible to determine how the ALJ assessed her actual ability

to sit, walk, stand, push and pull. The cases Plaintiff cites are distinguishable. E.g. Hayes v.

Astrue, No. 2:11-CV-04132-NKL, 2012 WL 393406, at *5 (W.D. Mo. Feb. 6, 2012); Brown v.

Astrue, No. 4:09CV274-DJS, 2010 WL 889835, at *25 (E.D. Mo. Mar. 8, 2010); Proffitt v. Astrue,

No. CIV. 08-5024, 2009 WL 315690, at *3 (W.D. Ark. Feb. 6, 2009); Schuler v. Astrue, No. 07-

3360-CV-S-JCE-SSA, 2009 WL 613556, at *5 (W.D. Mo. Mar. 9, 2009). In Hayes, the ALJ made

no explicit findings about the claimant’s functional limits. In Brown, Profitt, and Schuler, the

objective medical evidence in the record revealed apparent functional limits that the ALJs did not

consider.

Here, in contrast, the ALJ identified various functional limits specific to Plaintiff that are

consistent with an ability to do “light work.” Thornsberry v. Comm’r, Soc. Sec. Admin., No. 4:17-

00531-CV-RK, 2018 WL 6716698, at *2 (W.D. Mo. Dec. 21, 2018). In fact, the ALJ provided a

detailed discussion of Plaintiff’s reported difficulties, limitations, and complaints, comparing them

with the medical evidence of record. (Tr. 15-18.) The ALJ specifically indicated that “the medical

record failed to fully support the claimant’s severe limitations in sitting, standing, walking, lifting,

and handling.” (Tr. 18.) The ALJ went on to explain:

The record does support some limitations in functioning which are reflected in the

claimant’s residual functional capacity, which limits her to light exertional work.

Due to her neuropathy, she cannot climb ladders, ropes, or scaffolds, but can

occasionally climb ramps and stairs. She can engage in occasional stooping,

crouching, crawling but cannot perform overhead reaching, pushing, or pulling

bilaterally. The claimant can frequently perform tasks involving handling and

fingering. These findings are consistent with the minimal examination findings and

the reported improvement of symptoms with her surgery.

(Id.) “[T]he ALJ did not err because [her] RFC finding preceded his discussion of the evidence

supporting that finding.” Johnson v. Berryhill, No. 4:17-CV-0416-DGK-SSA, 2018 WL 2336297,

at *3 (W.D. Mo. May 23, 2018) (citing Seitz v. Colvin, No. 5:15–CV–06151–NKL, 2016 WL

3920463, at *7 (W.D. Mo. July 18, 2016) (rejecting claimant’s argument “that by articulating this

limit in exertional terms—‘light work’—without providing a function–by-function assessment of

his ability to sit, stand, walk, push, and pull, the ALJ failed to comply with the social security

regulations” and SSR 96–8p); Althaus–Rosiere v. Astrue, No. 10–5076–CV–SW–RED, 2012 WL

287314, at *4 (W.D. Mo. Jan. 31, 2012) (finding no error where ALJ expressed RFC in terms of

“light work,” followed by a discussion supporting his determination)).

Accordingly, the Court finds substantial evidence supports the RFC.

II. The RFC as to Plaintiff’s Physical Limitations is Supported by Substantial Evidence

Next, Plaintiff challenges the ALJ’s consideration of the opinion evidence addressing her

physical limitations, namely that Dr. Tschudin’s opinion, which the ALJ found partially

persuasive, did not address Plaintiff’s carpal tunnel syndrome with mild ulnar neuropathy and

lumbar degenerative disc disease and does not constitute substantial evidence as to Plaintiff’s

cervical degenerative disc disease because he was a non-examining, non-treating State agency

physician and his specialty is pediatrics.

Because Plaintiff applied for benefits on or after March 27, 2017, the ALJ applied the new

set of regulations for evaluating Dr. Tschudin’s opinions. The revised regulations redefine how

evidence is categorized, including “medical opinion” and “prior administrative findings,” and how

an ALJ will consider these categories of evidence in making the RFC determination. See 20 C.F.R.

§§ 404.1513(a), 404.1520c, 416.913(a), and 416.920c.

Here, the ALJ considered Dr. Tschudin’s opinion and found it to be partially persuasive

insofar as it was consistent with and supported by the objective medical evidence previously

discussed. (Tr. 18.) To the extent Plaintiff challenges Dr. Tschudin’s opinion based on non-

examination, non-treatment, and pediatric specialization, Dr. Tschudin is a highly qualified

physician and expert in the Social Security disability programs. See 20 C.F.R. §§ 404.1520c and

416.920c. The ALJ also acknowledged the evidence at the hearing supported additional severe

impairment and related limitations. (Tr. 18.) Thus, the ALJ properly relied on Dr. Tschudin’s

opinion.

Plaintiff then argues the ALJ should have developed the record further by obtaining

additional opinion evidence. However, there is no requirement that an RFC finding be supported

by a specific medical opinion. Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016); Myers v.

Colvin, 721 F.3d 521, 526-27 (8th Cir. 2013). In assessing the RFC, the ALJ properly considered

Dr. Tschudin’s opinion, along with Plaintiff’s allegations and symptoms, treatment history,

medications, diagnostic studies, objective examination findings, and daily activities. (Tr. 15-18.)

Additionally, the ALJ provided citations to the record in support of the RFC finding. (Id.) The

ALJ conducted an independent review of the medical evidence, including the opinion evidence

from Dr. Tschudin. All of the evidence together formed substantial medical evidence to support

the RFC. For this reason, the ALJ was not required to obtain additional medical evidence. Julin

v. Colvin, 826 F.3d 1082, 1089 (8th Cir. 2016).

Plaintiff further challenges the ALJ’s evaluation of the evidence regarding Plaintiff’s carpal

tunnel as it related to her RFC as to handling and fingering. (Doc. 10 at 29.) However, as pointed

out in Defendant’s brief, Plaintiff cites only evidence submitted to the Appeals Council on this

matter, and even then, the physician had not yet endorsed surgery and advised Plaintiff surgery

could be of limited utility given her new symptoms of severe forearm and wrist pain with

supination. (Tr. 68; Doc. 17 at 10.) Moreover, this single treatment record addressing acute

symptoms, which occurred three days before the ALJ’s decision and was not in evidence before

the ALJ, does not demonstrate that the RFC should have included handling and fingering

limitations.

Plaintiff also challenges the ALJ’s finding that Plaintiff’s work in food services while

incarcerated was inconsistent with her allegations that she could not walk, stand, lift, and use her

hands as being inconsistent with the ALJ’s “acknowledgment” that (at that time) Plaintiff was

limited to lifting no more than 10 pounds and standing and/or walking only four hours, which

Plaintiff further contends as being incompatible with the ALJ’s light work RFC finding. (Doc. 10

at 30.) The restriction noted was from July 2014, several years before the relevant period, and

following a subsequent no-work restriction during Plaintiff’s incarceration, another of Plaintiff’s

medical providers indicated that blanket no-work restrictions were inappropriate, and specific

activity restrictions related to her conditions should be provided instead. (Tr. 16-17, 301-04.) Such

restrictions are generally consistent with the ALJ’s RFC determination.

Plaintiff finally argues the ALJ improperly considered her activities of daily living. The

ALJ noted Plaintiff reported she was able to do light chores around the house, including cleaning

the bathroom, making her bed, the laundry and vacuuming at her own pace, taking college courses

online using voice software to type, preparing simple meals, and driving short distances. (Tr. 16.)

“While [Plaintiff’s] ability to perform these activities does not disprove disability as a matter of

law, ‘[i]nconsistencies between subjective complaints of pain and daily living patterns may . . .

diminish credibility.’” Casey v. Astrue, 503 F.3d 687, 696 (8th Cir. 2007) (quoting Pena v. Chater,

76 F.3d 906, 908 (8th Cir. 1996) and citing Roberson v. Astrue, 481 F.3d 1020, 1025 (8th Cir.

2007) (caring for eleven-year-old child, driving, fixing simple meals, doing housework, and

shopping for groceries held to be “extensive daily activities” that did not support claimant’s alleged

inability to work); Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir.1999) (playing cards, watching

television, shopping, performing occasional housework, and driving children and wife held

inconsistent with disabling pain)).

In sum, “although [Plaintiff] may disagree with how the ALJ weighed her subjective

complaints against the objective evidence, the ALJ’s analysis was guided by factors previously

endorsed by [the Eighth Circuit], such as [Plaintiff’s] daily activities and functional restrictions.

Schmitt v. Kijakazi, 27 F.4th 1353, 1361 (8th Cir. 2022) (citing Noerper v. Saul, 964 F.3d 738, 745

(8th Cir. 2020)). In spite of Plaintiff’s “dissatisfaction with how the ALJ weighed the evidence, it

is not this Court’s role to reweigh that evidence.” Id. The Court finds substantial evidence

supports the RFC as to Plaintiff’s physical limitations.

III. Substantial evidence supports the ALJ’s determination that Plaintiff could perform

other work that exists in significant numbers and there is no legal error

Plaintiff additionally argues that, at Step Five of the evaluation process, testimony from a

Vocational Expert (VE) did not constitute substantial evidence to support a finding that Plaintiff

retains the RFC to do other kinds of work and that other work exists in the national economy that

she is able to do.

Faced with the hypothetical question that set forth Plaintiff’s limitations in a manner

consistent with the ALJ’s eventual findings concerning Plaintiff’s condition and functional

limitations, the VE responded that Plaintiff could perform other work such as battery assembler,

injection molding machine tender, and classifier. (Tr. 19, 54-55.) These responses constitute

substantial evidence to support the ALJ’s decision that Plaintiff could perform other work. Milam

v. Colvin, 794 F.3d 978, 985-86 (8th Cir. 2015) (testimony from a VE based on a properly phrased

hypothetical question constitutes substantial evidence).

In so ruling, the Court rejects Plaintiff’s argument that the VE’s responses to interrogatory

questions are not substantial evidence to support the conclusion that she is not disabled because

the VE’s testimony conflicted with the Dictionary of Occupational Titles. Plaintiff contends all

three of the jobs identified by the VE required frequent reaching. However, the VE indicated that

even with a limitation for no overhead reaching, Plaintiff could perform the representative

occupations of battery assembler, injection loading machine tender, and classifier. (Tr. 19-20, 54-

55.) The ALJ explained she accepted the VE’s testimony in this regard and that, although it was

not consistent with the DOT, the VE supplemented the DOT based on the VE’s experience,

knowledge, and training in the field of vocational counseling. See SSR 00-4p (explaining that

evidence from a VE “can include information not listed in the DOT,” including “[i]nformation

from a VE’s . . . experience in job placement or career counseling.”). Substantial evidence supports

the ALJ’s findings at Step Five.

Even assuming the VE made a mistake in identifying some jobs,2 however, an ALJ’s

decision will still be supported by substantial evidence if a claimant can still perform a significant

number of the other jobs the expert identified. See Grable v. Colvin, 770 F.3d 1196, 1202 (8th

Cir. 2014); Burks v. Colvin, No. 414CV01121DGKSSA, 2016 WL 316869, at *5 (W.D. Mo. Jan.

26, 2016). The VE also testified that there was other work Plaintiff could perform if her RFC was

further restricted to sedentary work, including the representative occupations of charge-account

2 If a claimant establishes that he cannot perform his past relevant work, the burden of production

shifts to the Commissioner to prove that the claimant retains the RFC to perform other jobs that exist in

substantial numbers in the national economy. See Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005). The

burden of persuasion to prove the RFC and to establish disability, however, remains on the claimant even

when the burden of production shifts to the Commissioner at step five. Id.

clerk, document preparer, and order clerk. (Tr. 54-56.) Plaintiff does not convincingly contend in

her argument at Step Five that there was any conflict between her RFC and the other jobs identified

at the hearing. Thus, even if only the occupations of charge-account clerk, document preparer,

and order clerk remained, they were still available in significant numbers (21,000 in the national

economy). See Johnson v. Chater, 108 F.3d 178, 180 (8th Cir. 1997) (10,000 jobs in the national

economy was significant number when the job cited was representative of a larger category of jobs

the claimant could perform); Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988) (holding 500

jobs in Missouri was significant); 20 C.F.R. § 404.1566 (defining work which exists in the national

economy). In short, Plaintiff does not establish the ALJ erred in relying on the VE’s testimony in

this or any regard.

Substantial evidence supports the ALJ’s findings at Step Five, and the ALJ committed no

legal error.

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 for the reasons set forth in the Commissioner’s brief.

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

s/ Roseann A. Ketchmark

ROSEANN A. KETCHMARK, JUDGE

UNITED STATES DISTRICT COURT

DATED: July 15, 2022