The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RHEA EVERETTE NEBGEN, )
)
Plaintiff, )
)
v. ) Case No. 4:23-CV-00213-MDH
)
KILOLO KIJAKAZI, )
Acting Commissioner of Social Security, )
)
Defendant. )
ORDER
Before the Court is Plaintiff Rhea Nebgen’s appeal of Defendant Social Security
Administration Commissioner’s denial of her application for disability insurance benefits under
Title II of the Social Security Act, 42 U.S.C. §§ et. seq. Plaintiff exhausted administrative remedies
and the matter is now ripe for judicial review. After carefully reviewing the record, the Court finds
that the administrative law judge’s (“ALJ’s”) decision failed to comport with SSR 96-8p and the
decision is REVERSED and REMANDED.
BACKGROUND
Plaintiff protectively filed her application for disability benefits insurance under Title II of
the Social Security Act October 19, 2020. Plaintiff alleged disability beginning January 19, 2018.
Plaintiff’s application was denied. Plaintiff appealed this denial to an ALJ. Following an
administrative hearing, the ALJ found, in a decision issued March 11, 2022, that Plaintiff was not
disabled for purposes of her benefits application. The Appeals Council declined review of the
ALJ’s decision on February 9, 2023. Plaintiff then filed the present action in this Court. The ALJ’s
denial is Defendant’s final decision, over which this Court has jurisdiction.
The ALJ found, inter alia, Plaintiff has the severe impairments of fibromyalgia, lumbar
degenerative disc disease, obesity, and migraines. Plaintiff also suffers non-severe impairments of
irritable bowl syndrome, sinusitis, insomnia, hypothyroidism, vitamin D and B12 deficiencies, and
a “problem with pain perception.” (Tr. 20). The ALJ also found that Plaintiff has “medically
determinable mental impairments of depressive disorder, history of bipolar disorder, and anxiety
disorder.” (Tr. 20). However, these conditions, the ALJ found, “do not cause more than minimal
limitation in [Plaintiff’s] ability to perform basic mental work activities and are therefore
nonsevere.” (Tr. 20). The ALJ concluded Plaintiff “has the residual functional capacity [(“RFC”)]
to perform light work, as defined in 20 CFR 404.1567(b), except she can occasionally climb ramps
and stairs, balance, stoop, kneel, crouch, and crawl. She can never climb ladders, ropes, or
scaffolds. She must avoid frequent exposure to extreme cold and heat, wetness, humidity,
vibration, fumes, odors, dusts, gases, poor ventilation, hazards, machinery, and heights. The
claimant can work at no more than noise level 3, moderate, such as in a business office.” (Tr. 22).
The ALJ determined Plaintiff’s impairments do not preclude Plaintiff from performing her past
jobs of computer program analyst and software developer. The ALJ, therefore, concluded Plaintiff
has not suffered a disability for purposes of Plaintiff’s application for Social Security benefits
between January 19, 2018 and the date of the ALJ’s decision, March 11, 2022.
STANDARD
Judicial review of the Commissioner’s decision is a limited inquiry into whether
substantial evidence supports the findings of the Commissioner and whether the correct legal
standards were applied. See 42 U.S.C. §§ 405(g), 1383(c)(1)(B)(ii)(3). Substantial evidence is
less than a preponderance of the evidence and requires enough evidence to allow a reasonable
person to find adequate support for the Commissioner’s conclusion. Richardson v. Perales, 402
U.S. 389, 401 (1971); Freeman v. Apfel, 208 F.3d 687, 690 (8th Cir. 2000). This standard requires
a court to consider both the evidence that supports the Commissioner’s decision and the evidence
that detracts from the decision. Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008). That the
reviewing court would come to a different conclusion is not a sufficient basis for reversal. Wiese
v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009). Rather, “[i]f, after review, we find it possible to
draw two inconsistent positions from the evidence and one of those positions represents the
Commissioner’s findings, we must affirm the denial of benefits.” Id. (quoting Mapes v. Chater,
82 F.3d 259, 262 (8th Cir. 1996)).
Courts “defer heavily to the findings and conclusions of the Social Security
Administration” and will disturb the Commissioner’s decision only if it falls outside the “zone
of choice.” Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010); Casey v. Astrue, 503 F.3d 687,
691 (8th Cir. 2007). Incorrect application of a legal standard is grounds for reversal, Ford v.
Heckler, 754 F.2d 792 (8th Cir. 1985), but the Court defers to the ALJ’s determinations of the
credibility of witness testimony, as long as the ALJ’s determinations are supported by good
reasons and substantial evidence. Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006). Finally,
while a deficiency in opinion writing is not enough to merit reversal where it has no practical
effect on the outcome, incomplete analyses, inaccuracies, and unresolved conflicts of evidence
may be a basis for remand. Reeder v. Apfel, 213 F.3d 984, 988 (8th Cir. 2000).
DISCUSSION
I. Non-severe mental health limitations in the RFC
Plaintiff takes issue with how the ALJ addresses Plaintiff’s non-severe mental health conditions
in formulating Plaintiff’s RFC. At steps two and three of the sequential analysis, after finding
Plaintiff suffers from several non-severe mental health conditions, the ALJ discusses various
functioning areas impacted by Plaintiff’s mental health conditions. The ALJ considered the
following functioning areas: 1) understanding, remembering, and applying information; 2)
interacting with others; 3) concentrating, persisting or maintaining pace; and 4) adapting or
managing oneself. (Tr. 20-21). The ALJ concludes some degree of limitation exists in each
functioning area, but emphasizes such limitations are “mild” and pose only minimal difficulties
for Plaintiff’s ability to complete basic workplace activities.
The functioning areas the ALJ notes are known as the “paragraph B” criteria, which, the ALJ
explains, are not used in the formulation of the RFC, but instead “are used to rate the severity of
mental impairments at step 2 and 3 of the sequential evaluation process.” (Tr. 21). Defendant
contends that, because the ALJ’s discussion of mental functioning limitations references only the
“paragraph B” criteria used at steps 2 and 3, the ALJ’s failure to incorporate these acknowledged
limitations into Plaintiff’s RFC is not reversible error. Defendant concedes, however, that courts
have remanded an ALJ’s decision when an ALJ has altogether failed to mention mental limitations
after step two. See, e.g., Bozeman v. Kijakazi, No. 21-00350-CV-W-WBG, 2022 WL 3928504, at
*6 (W.D. Mo. Aug. 31, 2022) (remand for failure to adequately discuss non-severe mental
functioning impairments when formulating the RFC).
While Defendant is correct that the RFC discussion does reference Plaintiff’s non-severe
mental limitations, the reference is brief at best and occurs at the broadest level, lacking sufficient
reference to any particular workplace functioning. While the ALJ may not be required to develop
an expansive analysis of non-severe limitations within “paragraph B” criteria when formulating
the RFC, substantial evidence requires more than a mere passing reference. SSR 96-8p requires
some discussion of Plaintiff’s non-severe mental limitations in formulating the RFC beyond what
the ALJ has provided in this case.
II. Mild functioning limitations in opinions of Drs. Bucklew and Skolnick
Plaintiff also contends that, though the ALJ found medical opinions from Drs. J. Edd Bucklew
and Linda Skolnick persuasive, the ALJ failed to consider the mild functioning limitations found
by Drs. Bucklew and Skolnick when formulating the RFC. Nor did the ALJ explain, Plaintiff
contends, why these mild limitations were left out of the RFC. This Court agrees. SSR 96-8p
requires the ALJ to explain material inconsistencies in the record as well as the resolution of such
inconsistencies. Simply because a limitation proves mild does not render obsolete the requirement
that the ALJ explain why certain parts of an otherwise persuasive medical opinion failed to impact
the RFC. This failure is material because, as Plaintiff demonstrates, even mild limitations in some
mental functioning categories such as Plaintiff’s ability to interact with others, may have rendered
unavailable to Plaintiff the computer program analyst position, whose official description requires
regular communication with various people. (DOT 007.167-014).
III. Medical record evidence from Dr. Brown
Plaintiff contends that the RFC lacked substantial evidence also because record evidence failed
to include treatment and other medical records from Dr. Jennifer Brown at White Oak Psychiatric
Services. Plaintiff argues it is reversible error for the ALJ to have not sought relevant treatment
records from Dr. Brown because Plaintiff informed Defendant on Defendant’s own forms that
Plaintiff visited Dr. Brown for psychiatric treatment. This Court disagrees. While Plaintiff may
have indicated to Defendant that she saw Dr. Brown for treatment, Plaintiff’s counsel at the time
of the administrative hearing, who is different that Plaintiff’s current counsel, specifically informed
the ALJ that the record contained all medical evidence Plaintiff sought to include. (Tr. 37-38). The
Eighth Circuit has held that, following an ALJ’s administrative hearing, a plaintiff may not
supplement the record with additional evidence that existed at the time of the hearing based only
on a change of litigation strategy. Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991). The
record and briefing offers no indication that Plaintiff’s desire to supplement the record at this stage
reflects something other than a change in litigation strategy between Plaintiff’s counsel at the time
of the hearing and now.
IV. Inconsistency in medical opinion evidence
Plaintiff next argues that the ALJ’s failure to reconcile several perceived inconsistencies
between medical opinions the ALJ found persuasive constitutes reversible error. Specifically,
Plaintiff points to departures between Drs. Bucklew’s and Skolnick’s opinions about Plaintiff’s
ability to interact well with others, as well as departures between the opinions of Drs. Charity
Sandvos and James Weiss as to Plaintiff’s need to limit time in extreme heat. SSR 96-8p requires
that the ALJ identify and explicitly discuss how the ALJ resolved material inconsistency between
medical evidence in the record. Defendant is correct that the ALJ is not required to resolve every
conceivable inconsistency in the record. See Hendrix v. Kijakazi, No. 21-00004-CV-W-WBG,
2022 WL 4534962, at *3 (W.D. Mo. Sept. 28, 2022) (failure to reconcile mere differences in
verbiage not reversible error). As discussed before, however, the issue of Plaintiff’s ability to
interact with others proves significant, as the official description for computer program analyst
involves regular and strategic communication with others. (DOT 007.167-014). Though Dr.
Skolnick found only mild limitations in interacting with others while Dr. Bucklew found no such
limitation at all, this difference is meaningful when the employment the ALJ has determined to be
suitable requires significant communication skills. The same cannot be said, however, for the issue
of extreme heat exposure, which does not appear especially relevant for the type of available
employment identified by the ALJ. Further, the ALJ incorporated Dr. Weiss’ heat limitation, the
more restrictive of the opinions on the issue, into the RFC.
CONCLUSION
For foregoing reasons, this matter is REVERSED and REMANDED for additional
analysis from the ALJ consistent with this opinion and the demands of SSR 96-8p.
IT IS SO ORDERED.
DATED: March 28, 2024 /s/ Douglas Harpool
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE