# Miller v. Kijakazi

> District Court, W.D. Missouri · July 15, 2022

URL: https://www.frixlaw.com/law-library/cases/10242506

## Case

- **Court:** District Court, W.D. Missouri
- **Decided:** July 15, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
LORI MILLER, )
)
Plaintiff, )
)
v. ) No. 4:21-00412-CV-RK
)
)
COMMISSIONER OF SOCIAL )
SECURITY; )
)
)
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, 239 F.3d at 966). The Court does not “re-weigh the evidence presented to the ALJ.”
Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (citing Baldwin v. Barnhart, 349 F.3d
549, 555 (8th Cir. 2003)). The Court must “defer heavily to the findings and conclusions of the
[ALJ].” Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010) (citation omitted).
Discussion
By way of overview, the ALJ determined that Plaintiff has the following severe
impairments: generalized anxiety disorder, major depressive disorder, posttraumatic stress
disorder (PTSD), schizoid personality disorder, and borderline personality disorder. The ALJ also
determined that Plaintiff has the following non-severe impairments: dyslexia and a history of
obesity and bariatric surgery. 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
a full range of work at all exertional levels but with the following nonexertional limitations:
She retains the ability to concentrate, persist, and remain on task and pace and adapt
to simple, routine, and repetitive tasks, which may require detailed instructions but
do not involve complex tasks. She can concentrate, persist, and remain on task and
pace to adapt to work in an environment that is free of fast-paced production
requirements and involves only simple, work-related decisions with few, if any,
work place changes. Job duties should not require any interaction with the general
public. She can work around co-workers throughout the day but with only
occasional interaction with co-workers and supervisors.
(Tr. 17.) Although the ALJ found that Plaintiff is unable to perform any past relevant work, the
ALJ concluded based on her age, education, work experience, and RFC, that Plaintiff can perform
jobs that exist in significant numbers in the national economy.
On appeal, Plaintiff argues that the ALJ failed to include limitations from Dr. Keith Allen’s
opinion in the RFC and did not provide any explanation for why those limitations were excluded.
Additionally, Plaintiff argues that the ALJ’s finding, that the opinions of Plaintiff’s treating
providers were not consistent with or supported by the evidence, is not supported by substantial
evidence. The Court will address these arguments in turn.1

1 The Court finds much of Defendant’s brief persuasive. Portions are incorporated without further
reference.
I. The ALJ’s Exclusion of Limitations from Dr. Allen’s Opinion Does Not Violate SSR
96-8p
Plaintiff first contends the ALJ’s decision not to include limitations from Dr. Allen’s
opinion in the RFC violates SSR 96-8p because the ALJ failed to explain why those limitations
were excluded. Specifically, Plaintiff argues that although Dr. Allen opined that Plaintiff’s ability
was “impaired for detailed or complex instructions” and Plaintiff could only perform “less than
four step instructions” (Tr. at 65), the ALJ found Plaintiff retained the RFC to perform simple,
routine, and repetitive tasks “which may require detailed instructions but do not involve complex
tasks” (Tr. at 17). (Doc. 11 at 9-10.) Plaintiff concludes, therefore, the ALJ failed to explain why
she did not include Dr. Allen’s limitation concerning Miller’s impaired ability to perform detailed
instructions and, instead, specifically found she could perform such instructions. (Id. at 10.)
SSR 96-8p provides: “The RFC assessment must always consider and address medical
source opinions. If the RFC assessment conflicts with an opinion from a medical source, the
adjudicator must explain why the opinion was not adopted.”
The Court finds Plaintiff’s argument without merit. The ALJ’s determination reads, in
part:
The prior administrative medical findings of Dr. Allen are persuasive to the extent
they indicate that the claimant is able to perform simple, routine and repetitive
tasks, as I find such finding to be supported by the objective medical evidence of
record, and consistent with evidence from other sources as fully discussed above or
in Dr. Allen’s summary at Exhibit 1A. Also, as a State Agency psychological
consultant, Dr. Allen is well versed in the Social Security Act and regulations,
including all pertinent definitions and procedures utilized by the Social Security
Administration in determining whether an individual is entitled to disability
benefits. Some of the specific consistency and supportability factors in this case
include the claimant’s relatively conservative mental health treatment and her
admitted capabilities. However, Dr. Allen’s limitation to less than 4-step
instructions is not persuasive, as it is not supported by the record as a whole,
particularly the claimant’s activities of daily living, which were discussed above
and which require at least 4 step instructions, if not more.
(Tr. 20.) As to Plaintiff’s activities of daily living, the ALJ made the following observations and
findings:
Notably, medical evidence of record shows that in May of 2019, the claimant was
working on some new business ventures (Ex. 2F/15). Subsequent notes show she
looked to do her own business (Ex. 2F/17). Notes show she engaged in doing
“independent types of jobs which would bring in money” (Ex. 2F/16). She
struggled with her business dealings and found many problems related to her
daughter-in-law doing the business with her (Ex. 2F/14). Notes dated May 17,
2019, indicate she had remodeled her basement to start her own clothing boutique
for online sales/truck shows (Ex. 2F/1). However, to date there is no objective
evidence of any actual self-employment earnings, as none have been reported to the
Internal Revenue Service (IRS).
In addition to the claimant’s work record, the claimant admitted a generally active
lifestyle, not limited to the extent one would expect given her complaints of
subjective pain and limitation. The claimant variously reported and testified of
capacity for taking care of their own personal needs, cooking, doing laundry,
driving an automobile to get around, shopping in stores for necessities, using a
computer, working, moving into a new home, and venturing to start their own
business (Ex. 5E/2-5, 10; Ex. 2F/1, 14-17; Ex. 21F/8). It appears that despite her
impairments, she has engaged in a somewhat normal level of daily activities and
interaction. Despite the allegations of symptoms and limitations preventing all
work, the record reflects that the claimant went on a vacation since the alleged onset
date (Ex. 2F/7). Although a vacation and a disability are not necessarily mutually
exclusive, the claimant’s decision to go on a vacation is generally inconsistent with
the alleged severity of symptoms and limitations. The claimant also remodeled her
basement to start her own clothing boutique for online sales/truck shows, which
also is generally inconsistent with the alleged severity of symptoms and limitations
(Ex. 2F/1). On March 25, 2020, the claimant reported to a neuropsychological
examiner that she goes to thrift stores and sells crafts online; she has two dogs she
walks daily; and she cleans her house frequently (Ex. 12F/3). In sum, the claimant’s
described limitations in work related activities and activities of daily living are
inconsistent with the relatively benign medical evidence and other factors discussed
in this decision, which does not support that they are entirely due to any established
impairments.
The Court finds the ALJ’s above explanations are sufficient to comply with SSR 96-8p. Contrary
to Plaintiff’s assertion otherwise, the record shows the ALJ carefully considered Dr. Allen’s
opinions and, to the extent Dr. Allen’s opinions were not adopted, the ALJ referenced contrary
evidence in the record concerning Plaintiff’s daily living activities.
II. The ALJ’s Finding that Plaintiff’s Treating Providers’ Opinions Were Not
Consistent With or Supported by the Evidence is Supported by Substantial
Evidence
Plaintiff asserts the ALJ’s finding (that Plaintiff’s treating providers’ opinions were not
consistent with or supported by the evidence) is not supported by substantial evidence. In
particular, Plaintiff challenges the ALJ’s evaluation of medical opinions from psychiatric
providers Allison Gilbert, P.A.-C.; Stacy Mason, M.S., L.P.C.; and Jennifer Brown, A.P.R.N.,
each of which the ALJ found were “extreme in light of the actual findings documented in the
record” and “generally not consistent with the record as a whole or well supported by the objective
evidence of record[.]” (Tr. 21.) Plaintiff points out that Ms. Gilbert opined that Plaintiff
experienced moderate, marked, and extreme limitations in her various mental abilities, would be
off-task 20% or more of the workday, and would miss three days of work per month. (Tr. 418-
19.) Ms. Mason found that Plaintiff suffered from mostly marked and extreme limitations, would
be off-task 25% or more of the workday, and would miss four or more days of work per month.
(Tr. 427-28, 516-17.) Ms. Brown also found that Plaintiff suffered from numerous marked
limitations and would miss work four days per month. (Tr. 520-21, 611-12.) Plaintiff complains
the ALJ’s findings as to these opinions are not supported by substantial evidence.
The ALJ evaluated the supportability of these three opinions by comparing the individual
providers’ own objective findings to their opinions. See 20 C.F.R. § 404.1520c(c)(1). For
example, the ALJ found Ms. Gilbert’s normal mental status evaluation findings and Plaintiff’s own
reports in the records did not support Ms. Gilbert’s opinion that Plaintiff had marked and extreme
limitations. (Tr. 21 (citing Tr. 653, 655, 672).) These records showed full orientation, no acute
distress, normal level of consciousness, and good personal hygiene. (Tr. 653, 655, 672.) The ALJ
specifically noted these normal examination findings were made on the same day Ms. Gilbert
suggested Plaintiff had marked and extreme limitations. (Tr. 21; see Tr. 429-30, 672.)
When discussing the supportability of Ms. Mason’s opinion, the ALJ noted that Ms. Mason
assigned Plaintiff a Global Assessment of Functioning (GAF) score that indicated mild limitations
(Tr. 21-22). Although Plaintiff argues that GAF scores offer little probative value in social security
disability cases (Doc. 11 at 17), the ALJ was not relying on this score to support the ALJ’s own
RFC; instead, the ALJ was simply considering this score in the context of whether Ms. Mason’s
extreme limitations opinion was supported by Ms. Mason’s own findings. (Tr. 21-22.)
Furthermore, the ALJ noted Ms. Mason’s progress notes described Plaintiff’s subjective reports,
such as a depressed or dysthymic mood, but Ms. Mason did not identify deficits in cognition,
memory, insight, or judgment that could account for the limitations in her opinion. (Tr. 21-22; Tr.
689-702.)
Finally, the ALJ also specifically discussed the supportability of Ms. Brown’s opinion (Tr.
22). The ALJ noted examinations by Ms. Brown showed Plaintiff had full orientation, cooperative
behavior, good eye contact, normal psychomotor activity, normal speech, normal affect, normal
thoughts, good insight, good judgment, intact cognition, intact memory, and intact fund of
knowledge. (Tr. 16 (citing Tr. 594, 599, 602, 605, 608, 630).)
Based on the normal objective findings of each of these providers, the ALJ found their
opinions were not well supported. (Tr. 21; see 20 C.F.R. § 404.1520c(c)(1); 20 C.F.R.
§ 404.1502(g) (“Psychiatric signs are medically demonstrable phenomena that indicate specific
psychological abnormalities, e.g., abnormalities of behavior, mood, thought, memory, orientation,
development, or perception, and must also be shown by observable facts that can be medically
described and evaluated.”).)
Beyond the lack of supporting abnormalities described in the various mental status
examinations, the ALJ found these opinions were inconsistent with other evidence in the record.
(Tr. 18-22; see 20 C.F.R. § 404.1520c(c)(2).) For example, the ALJ observed that Plaintiff’s
treatment during the relevant period was essentially conservative in nature. (Tr. 19-20.) The ALJ
acknowledged Plaintiff’s treatment in a partial hospitalization program shortly before the
beginning of the relevant period, but her treatment since that time consisted of medication, therapy,
and transcranial magnetic stimulation. (Tr. 17-20; see Tr. 594, 599, 602, 605, 608, 630, 689-702.)
The ALJ noted that Plaintiff did not require more intensive treatment such as hospitalization or
emergency care during the relevant period, and the record showed improvement with treatment.
(Tr. 20; see Tr. 385, 389, 391.) Plaintiff also reported improvement with her current treatment.
(Tr. 385, 389, 391.) The ALJ properly considered Plaintiff’s response to conservative treatment,
and that the treatment Plaintiff received was not consistent with the extreme findings in these
opinions. See 20 C.F.R. § 404.1520c(c)(2); see also Lawrence v. Saul, 970 F.3d 989, 996 (8th Cir.
2020); Milam v. Colvin, 794 F.3d 978, 985 (8th Cir. 2015).
In addition to conservative management, the ALJ noted the situational nature of many of
Plaintiff’s complaints. (Tr. 19.) Specifically, the ALJ observed that Plaintiff’s mood deficits often
appeared related to situational stressors such as jobs, family, and financial worry, as opposed to
mental impairments. (Tr. 19; see, e.g., Tr. 385, 387, 622, 743, 744.) Situational depression is not
a basis for an award of disability benefits. See Gates v. Astrue, 627 F.3d 1080, 1082 (8th Cir.
2010) (“The medical record supports the conclusion that any depression experienced by Gates was
situational in nature, related to marital issues, and improved with a regimen of medication and
counseling.”); Mitchell v. Sullivan, 907 F.2d 843 (8th Cir. 1990).
The ALJ also considered Plaintiff’s reported activities of daily living in statements to the
SSA and medical providers. (Tr. 19.) The ALJ noted Plaintiff could cook, drive a car, do laundry,
shop for necessities, use a computer, move into a new home, and start a business. (Tr. 18-19 (citing
Tr. 255-58, 263, 385, and 398-401).) Daily activities are a proper consideration when evaluating
Plaintiff’s claim. See Chismarich v. Berryhill, 888 F.3d 978, 979 (8th Cir. 2018); Thomas v.
Berryhill, 881 F.3d 672, 676 (8th Cir. 2018). This full range of activities was inconsistent with
the treating source opinions. See 20 C.F.R. § 404.1520c(c)(2).
The ALJ also discussed Plaintiff’s work activity. (Tr. 16.) Even part-time work activity
can suggest a Plaintiff is not as limited as alleged. See 20 C.F.R. § 404.1571; see also Medhaug
v. Astrue, 578 F.3d 805, 816 (8th Cir. 2009); Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005).
The ALJ discussed Plaintiff’s work activity, including starting a clothing boutique in her basement
and selling CBD oil at trade shows. (Tr. 16; see Tr. 385, 398-401, 412.) This work activity was
inconsistent with the functional limitations described in the treating source opinions. See 20 C.F.R.
§ 404.1520c(c)(2). Based on all these factors, the ALJ properly found the record as a whole was
inconsistent with both the more extreme opinions of Plaintiff’s providers and Plaintiff’s own
subjective complaints. Nevertheless, the ALJ did acknowledge Plaintiff suffered from real
functional limitations and accounted for them accordingly in the ALJ’s RFC determination. (Tr.
17.)
Plaintiff does not dispute the normal findings on the mental status examinations with her
providers, but instead argues these brief indications are not representative of her overall
functioning. (Doc. 11 at 14). However, the ALJ did not just consider the objective findings when
evaluating these opinions and finding the RFC; she considered the entire record to get a complete
picture of Plaintiff’s impairments. Specifically, regarding these three opinions, the ALJ considered
the consistency of the opinions with the record as a whole. As discussed above, the ALJ considered
Plaintiff’s reported activities, work activity, the situational nature of her complaints, and her
conservative treatment. (Tr. 19-20.)
Plaintiff also argues that normal mental status examination findings are of little probative
value because the diminishing of her symptoms was a product of the treatment and social supports
she received. (Doc. 11 at 14-15). However, the ALJ specifically addressed Plaintiff’s ongoing
treatment and social supports when considering Plaintiff’s argument that she met Listing 12.06.
(Tr. 16.) One of the requirements of Listing 12.06 is that there must be evidence that a plaintiff
relies on medical treatment or a highly structured setting on an ongoing basis to diminish the
symptoms and signs of a mental disorder. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.06C. In
this case, the ALJ found that Plaintiff’s treatment and social supports did not support the allegation
that Plaintiff had a minimal capacity to adapt to change in the environment or to demands that are
not already part of her daily life. (Tr. 16.) The ALJ cited Plaintiff’s discharge from her partial
hospitalization program and subsequent improvement with medication. (Tr. 16.) The ALJ also
noted Plaintiff’s work activity, including selling CBD oil at trade shows, and that she was able to
move into a new house. (Tr. 16 (citing Tr. 412, 655).) While Plaintiff can argue she needs
significant social support from her spouse and treatment, the ALJ considered this possibility, but
permissibly concluded that evidence showed Plaintiff could adapt to change or demands not
already part of her daily life. (Tr. 16.) Substantial evidence supports this conclusion.
Plaintiff argues that the ALJ improperly relied on her plans to go on vacation and her
business ventures as reasons to discount the treating psychiatric providers’ opinions. (Doc. 11 at
16-17.) However, whether Plaintiff actually went on this vacation is immaterial to the ALJ’s
reasoning. As the ALJ stated, “[a]lthough a vacation and a disability are not necessarily mutually
exclusive, [Plaintiff’s] decision to go on a vacation is generally inconsistent with the alleged
severity of symptoms and limitations.” (Tr. 18.) Plaintiff alleges she met a listing requirement
that she cannot function without significant social supports, and planning a vacation is inconsistent
with this allegation.
Plaintiff also argues that the ALJ did not consider the nature or frequency of her business
ventures. (Doc. 11 at 17.) But Plaintiff’s work activity in conjunction with the other evidence in
the record supports the ALJ’s finding that the opinions were inconsistent with the evidence as a
whole. Even work activity that would not rise to substantial gainful activity levels is a valid
consideration in determining the extent of Plaintiff’s limitations. See 20 C.F.R. § 404.1571.
Furthermore, although she did not earn at substantial gainful activity levels, the records showed
Plaintiff worked for retailers, a supermarket, and a school district (Tr. 13-14), and she reported
business ventures to her psychological providers (Tr. 20). This work activity, in conjunction with
other reported daily activities, led the ALJ to conclude Plaintiff was not as limited as alleged. (Tr.
18-19.) See Medhaug, 578 F.3d at 816; Goff, 421 F.3d at 792 (part-time work is inconsistent with
allegations of disability).
In sum, substantial evidence supports the ALJ’s finding that Plaintiff’s psychiatric
providers’ opinions were not persuasive. In making this determination, the ALJ considered the
normal objective findings from these providers and the consistency of their opinions with the
record as a whole. She found conservative management after Plaintiff completed her partial
hospitalization program. Furthermore, the records showed Plaintiff had several activities of daily
living, worked at various jobs, and started business ventures. Based on the relatively conservative
management following Plaintiff’s completion of her partial hospitalization program and the
various daily living activities including working at various jobs and starting multiple business
ventures, the ALJ found Plaintiff’s psychiatric providers’ opinions were not persuasive. Plaintiff
offers a different interpretation of the evidence, but what matters is whether the ALJ’s findings are
supported by substantial evidence, as they are in this case. Lawrence v. Saul, 970 F.3d 989, 996
(8th Cir. 2020) (“If substantial evidence supports the Commissioner’s decision, we may not reverse
even if we might have decided the case differently.” (internal quotation marks omitted)).
Accordingly, the Court defers to the ALJ’s findings in this regard because they are supported by
substantial evidence. Plaintiff’s argument is without merit.
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10242506. Public record. Not legal advice.