McAlister v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

MICHAEL McALISTER PLAINTIFF

V. Civil No. 2:22-cv-02073-PKH-MEF

KILOLO KIJAKAZI, Acting Commissioner,

Social Security Administration DEFENDANT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff, Michael McAlister, brings this action under 42 U.S.C. § 405(g), seeking judicial

review of a decision of the Commissioner of Social Security Administration (the “Commissioner”)

denying his claim for a period of disability and disability insurance benefits (“DIB”) under Title

II of the Social Security Act (hereinafter “the Act”), 42 U.S.C. § 423(d)(1)(A). In this judicial

review, the Court must determine whether there is substantial evidence in the administrative record

to support the Commissioner’s decision. See 42 U.S.C. § 405(g).

I. Procedural Background

Plaintiff filed his application for DIB on February 19, 2020, alleging disability since

September 29, 2018, due to diabetes, back pain, insomnia, anxiety, depression, post-traumatic

stress disorder (“PTSD”), headaches, diarrhea, kidney stones, and frequent urination. (ECF No.

8, pp. 78-79, 89, 162-168, 190, 198-199). An administrative hearing was held telephonically on

January 7, 2021. (Id. at 38-76). Plaintiff was present and represented by counsel.

Born in July 1971, Plaintiff was 43 years old on his alleged onset date and possessed a high

school education. (ECF No. 8, pp. 162, 191). He had past relevant work (“PRW”) experience as

an assembler, factory worker, and forklift operator during the 15 years preceding his alleged onset

date. (Id. at 27, 196, 204-211, 192, 200-207).

On June 2, 2021, the Administrative Law Judge (“ALJ”), Hon. Glenn Neel, determined

that the Plaintiff met insured status requirements through December 31, 2023. (ECF No. 8, p. 22).

The ALJ then identified Plaintiff’s degenerative disc disease (“DDD”) of the lumbar spine status

post-surgery; diabetes mellitus with neuropathy; and obesity as severe impairments, but he

concluded Plaintiff did not have an impairment or combination of impairments that met or

medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix

1. (Id. at 22, 25). Despite his impairments, ALJ Neel found that Plaintiff retained the residual

functional capacity (“RFC”) to perform light work, with occasional climbing, balancing, stooping,

kneeling, crouching, and crawling. (Id. at 26). With the assistance of a vocational expert (“VE”),

ALJ Neel ultimately decided the Plaintiff could perform his PRW as an assembler or, in the

alternative, other jobs such as merchandise marker, routing clerk, cutter and paster, eyeglass frame

polisher, and nut sorter. (Id. at 30-32).

The Appeals Council denied Plaintiff’s request for review on March 2, 2022. (ECF No. 8,

pp. 5-10). Plaintiff subsequently filed this action on April 27, 2022. (ECF No. 2). Both parties

have filed appeal briefs (ECF Nos. 10, 12), and the matter is ready for Report and

Recommendation.

II. Applicable Law

This Court’s role is to determine whether substantial evidence supports the

Commissioner’s findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). Substantial

evidence is less than a preponderance, but it is enough that a reasonable mind would find it

adequate to support the Commissioner’s decision. Biestek v. Berryhill, 139 S.Ct. 1148, 1154

(2019). We must affirm the ALJ’s decision if the record contains substantial evidence to support

it. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). If there is substantial evidence in the

record to support the Commissioner’s decision, the Court may not reverse it simply because

substantial evidence exists in the record that would have supported a contrary outcome, or because

the Court would have decided the case differently. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir.

2015). In other words, if after reviewing the record it is possible to draw two inconsistent positions

from the evidence and one of those positions represents the findings of the ALJ, we must affirm

the ALJ’s decision. Id.

A claimant for Social Security disability benefits has the burden of proving his disability

by establishing a physical or mental disability that has lasted at least one year and that prevents

him from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217

(8th Cir. 2001); see also 42 U.S.C. § 423(d)(1)(A). The Act defines “physical or mental

impairment” as “an impairment that results from anatomical, physiological, or psychological

abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic

techniques.” 42 U.S.C. § 423(d)(3). A Plaintiff must show that his disability, not simply his

impairment, has lasted for at least twelve consecutive months.

The Commissioner’s regulations require her to apply a five-step sequential evaluation

process to each claim for disability benefits: (1) whether the claimant has engaged in substantial

gainful activity since filing his claim; (2) whether the claimant has a severe physical and/or mental

impairment or combination of impairments; (3) whether the impairment(s) meet or equal an

impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past

relevant work; and, (5) whether the claimant is able to perform other work in the national economy

given his age, education, and experience. See 20 C.F.R. § 404.1520(a)(4). The fact finder only

considers Plaintiff’s age, education, and work experience in the light of his RFC if the final stage

of the analysis is reached. 20 C.F.R. § 404.1520(a)(4)(v).

III. Discussion

Plaintiff raises three issues on appeal: (1) whether the ALJ properly found his chronic daily

headaches and recurrent kidney/urinary tract stones to be non-severe impairments; (2) whether the

ALJ’s RFC is supported by substantial evidence; and (3), whether the Plaintiff can return to his

PRW, as found by the ALJ.

A. Non-severe Impairments

In his first issue, the Plaintiff disputes the ALJ’s determination that his daily headaches,

recurrent kidney/urinary tract stones, and depression/anxiety are non-severe impairments. A

claimant has the burden of providing evidence of functional limitations in support of their

contention of disability. Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). A mere diagnosis

alone is not sufficient to prove disability, absent some evidence to establish a functional loss

resulting from that diagnosis. See Trenary v. Bowen, 898F.2d 1361, 1364 (8th Cir. 1990).

“An impairment is not severe if it amounts only to a slight abnormality that would not

significantly limit the claimant’s physical or mental ability to do basic work activities.” Id. (citing

Bowen v. Yuckert, 482 U.S. 137, 153 (1987); 20 C.F.R. § 404.1521(a)). “If the impairment would

have no more than a minimal effect on the claimant’s ability to work, then it does not satisfy the

requirement of step two.” Id. (citing Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007)). A step

two finding of a non-severe impairment does not, however, end the ALJ’s duty to consider the

impairment. The evidence in this case, however, fails to breach this threshold.

The record does document a history of daily headaches, dating back to at least February

2015, three years prior to the Plaintiff’s alleged onset date. (ECF No. 8-1, pp. 1-6). Following a

normal CT scan of his head, he and his physician opted to treat his tempomandibular joint

dysfunction (“TMJ”), believing the two to be related. (ECF No. 8-1, p. 7-13, 55, 112; ECF No. 8-

2, pp. 97, 217). Dr. Sumanth Bulgari prescribed Naprosyn and Flexeril and recommended

consulting a neurologist. Thereafter, the Plaintiff reported improvement in his headaches and

voiced no further complaints until January 24, 2020. (ECF No. 8-1, pp. 14-19, 34-54). See

Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir. 2003) (holding that ALJ may discount disability

claimant’s subjective complaints of pain based on the claimant’s failure to pursue regular medical

treatment). At that time Nurse Practitioner Elizabeth Charles noted that the cause of his chronic

headaches was yet to be determined. (ECF No. 8-1, pp. 281-295, 301-308; ECF No. 8-3, pp. 31-

43). And yet, only three days later, she completed a medical source statement indicating that the

Plaintiff’s limitations were due to his headaches, among other impairments. (ECF No. 8, pp. 266-

269; ECF No. 8-1, pp. 528-531).

There was no further mention of headaches until January 2021, when Dr. Bennett noted

that the Plaintiff had experienced chronic headaches since a motor vehicle accident three years

earlier. (See id.). He opined that the Plaintiff could not perform his job effectively due to the

combination of his impairments and did not anticipate any improvement in his overall health.

(ECF No. 8-2, p. 719; ECF No. 8-3, pp. 1-8). However, Dr. Bennett also noted that the Plaintiff

had never consulted a neurologist and was only taking Ibuprofen and Tylenol.

Unfortunately, the record does not support the Plaintiff’s contention that he consistently

suffered from debilitating headaches throughout the relevant period. As noted by the ALJ, medical

records indicate that his headaches responded well to the treatment prescribed for his TMJ, namely

anti-inflammatories and a muscle relaxer. See Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir.

2004) (“If an impairment can be controlled by treatment or medication, it cannot be considered

disabling.”) (internal quotation marks and citation omitted); Mittlestedt v. Apfel, 204 F.3d 847, 852

(8th Cir. 2000) (“Impairments that are controllable or amenable to treatment do not support a

finding of total disability.”) (internal quotation marks and citation omitted). In fact, he did not

even take prescription medication specifically for his headaches, instead taking only over-the-

courter Tylenol and Ibuprofen. See Hepp v. Astrue, 511 F. 3d 798, 807 (8th Cir. 2008) (holding

that moderate, over-the-counter medication for pain does not support allegations of disabling pain).

And, although he indicated that he was not opposed to consulting with a neurologist, he failed to

do so as recommended by his medical provider. See Kelley v. Barnhart, 372 F.3d 958, 961 (8th

Cir. 2004) (holding that failure to follow prescribed medical treatment without good cause is a

basis for denying benefits).

The Plaintiff focuses on the ALJ’s statement that he suffered from “secondary headaches

disorder,” contending that the cause of his headaches was irrelevant. However, the primary or

secondary nature of the Plaintiff’s headaches was not the basis of the ALJ’s decision. Rather, the

ALJ correctly focused on the absence of functional limitations for his headaches, the absence of

consistent treatment for and repeated denials of headaches at examinations, and the responsiveness

of his headaches to the medications prescribed to treat his TMJ.

Similarly, Plaintiff cites several instances in the record where he was diagnosed with

kidney stones, contending that these episodes would result in excessive work absences that would

prohibit him from maintaining employment. However, a number of these citations are to records

dated prior to his alleged onset date. Emergency room records dated January 2018 indicate he was

treated for a stone in the left ureter, confirmed by CT scan. (ECF No. 8-1, pp. 358-362; ECF 8-2,

pp. 61-62, 181-183, 596-597). The doctor prescribed Zofran, Flomax, and Percocet.

He was next treated for a CT confirmed right renal stone and two stones in the left

ureterovesical junction causing hydronephrosis and hydroureter in December 2018, some 11

months later. (ECF No. 8-1, pp. 327-331; ECF No. 8-2, pp. 47-48, 167-168, 448-451). Pain

medication and Zofran were again prescribed, and the Plaintiff was referred to nephrology.

He received treatment for flank pain on only one occasion in 2019. In March, a CT scan

revealed a small non-obstructive right renal stone and two stones in the left ureterovesical junction,

again resulting in hydronephrosis and hydroureter. (ECF No. 8-1, pp. 320-324; ECF No. 8-2, pp.

42-44, 163-164, 431-432). The emergency room doctor prescribed Norco, Flomax, and Zofran

and referred him to nephrology.

In 2020, the Plaintiff was treated for kidney stones on two occasions. On May 5, 2020, a

CT scan showed two stones in the proximal right ureter with mild to moderate

hydroureteronephrosis. (ECF No. 8-2, pp. 20-21, 140-141, 339-341). X-rays taken on May 22

indicated that the stones were resolving, as only a tiny right kidney stone remained. (ECF No. 8-

2, pp. 138, 311).

On July 3, he again reported flank pain suspicious for recurrent stone disease. (ECF No.

8-2, pp. 11-12, 131-132, 286-287). And a CT scan confirmed the presence of bilateral intrarenal

calculi obstructing the right ureter.

In December 2020, Dr. Bennett referred the Plaintiff to nephrology for complaints of

malaise, fatigue, and flank pain. (ECF No. 8-2, pp. 239-243; ECF No. 8-3, pp. 9-15). There is,

however, no evidence in the record that the Plaintiff followed through with this referral. See

Kelley, 372 F.3d at 961. There is also no evidence to suggest these episodes required

hospitalization or surgical intervention. Although very painful to endure, the record indicates that

his condition was responsive to the treatment prescribed. See Brown, 390 F.3d at 540. And, given

the infrequent nature of these episodes, one to two per year, we cannot say they would prevent the

Plaintiff from attending work on a regular basis.

As for his mental impairments, we note that he was diagnosed with depression before his

alleged onset date. Records indicate that Dr. Balguri refilled his Prozac prescription in February

2015, noting his depression to be stable. (ECF No. 8-1, pp. 1-6). And, although he continued to

receive prescriptions for this medication, Dr. Balguri consistently documented normal mental

status exams and indicated that his depression was well controlled. (ECF No. 8-1, pp. 14-19, 28-

54, 111-115; ECF No. 8-2, pp. 84-85, 304-305, 691-692). Moreover, in July 2017, the Plaintiff

advised Nurse Bennett that he had experienced some depression following the death of his father

the previous year, but he admitted it was controlled with medication. (ECF No. 8-1, pp. 59-64,

120-125).

An exam conducted in September 2018 documented a flat affect, but thereafter, exams

revealed a normal mood and affect. (ECF No. 8-1, pp. 68-74, 79-83, 129-135, 158-161, 246-253,

324-326, 345-349, 355-358, 362-365; ECF No. 8-2, pp. 60-61, 181, 542, 547). It was not until

May 21, 2019, when the Plaintiff again complained of depression. (ECF No. 8-1, pp. 221-228,

255-265, 316-320; ECF No. 8-2, pp. 35-36, 156, 405, 414). At that time, Dr. Bennett noted a

normal mental status exam and advised the Plaintiff to continue the Prozac without change.

In January 2020, Plaintiff reported to Nurse Charles that his depression had improved with

Prozac. (ECF No. 8-1, pp. 281-295, 301-308; ECF No. 8-3, pp. 31-43). She noted normal speech,

behavior, judgment, thought content, cognition, and memory, as well as a normal mood and affect.

Inconsistently, however, she completed a mental medical source statement on January 27, 2020,

assessing him with severe limitations in the ability to deal with work stresses, accepting

instructions, and responding appropriately to criticism from supervisors; and marked restrictions

in interacting with the general public, functioning independently, understanding and remembering

detailed or complex instructions, carrying out all levels of instruction, avoiding undue constriction

of interests, responding appropriately to changes in routine work setting and work procedures,

traveling in unfamiliar places or using public transport, being aware of normal hazards and taking

appropriate precautions, and asking simple questions or requesting assistance. (ECF No. 8, pp.

270-273; ECF No. 8-1, pp. 523-526). She also noted the Plaintiff had difficulty following

instructions and finishing tasks at work, as well as problems with anxiety, depression, and anger

management.

On December 14, 2020, the Plaintiff denied both anxiety and depression and exhibited a

normal mental status exam. (ECF No. 8-2, pp. 239-243; ECF No. 8-3, pp. 9-15). And, in January

2021, a depression screen conducted by Dr. Bennett revealed only mild depression with a mildly

flattened affect.

Contrary to the Plaintiff’s argument, there is nothing to indicate that a consultative mental

evaluation should have been ordered. While “[a]n ALJ should recontact a treating or consulting

physician if a critical issue is undeveloped,” “the ALJ is required to order medical examinations

and tests only if the medical records presented to him do not give sufficient medical evidence to

determine whether the claimant is disabled.” Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir. 2010)

(quotation, alteration, and citation omitted). That is not the case here, as the record contains ample

evidence upon which the ALJ could base his decision.

Likewise, we do not find that the evidence before this Court establishes the existence of a

severe mental impairment. The Plaintiff failed to seek out professional mental health treatment,

reported improvement with medication, and consistently exhibited normal mental status exams.

See Mittlestedt, 204 F.3d at 852 (holding impairments controllable or amenable to treatment do

not support a finding of total disability); see also Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007)

(holding lack of treatment by a psychiatrist, psychologist, or other mental health professional is a

significant consideration when evaluating Plaintiff’s allegations of mental disability).

Accordingly, we find substantial evidence in the record to support the ALJ’s finding that

the Plaintiff’s headaches, episodic kidney stones, and depression/anxiety were not severe

impairments.

B. RFC Determination

The Plaintiff also insists that the ALJ’s RFC determination is not supported by substantial

evidence, as it fails to account for all his limitations. We disagree. After reviewing the evidence

of record, the ALJ properly concluded the Plaintiff could perform light work, with occasional

climbing, balancing, stooping, kneeling, crouching, and crawling.

RFC is the most a person can do despite that person’s limitations. 20 C.F.R. § 404.1545.

The ALJ’s RFC determination must be based on all relevant evidence in the record, including

medical records, observations of treating physicians and others, limitations resulting from factors

such as pain, and the claimant’s own descriptions of her limitations. Id. § 404.1545(a)(3); see also

Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010) and Davidson v. Astrue, 578 F.3d 838, 844 (8th

Cir. 2009). In assessing RFC, the ALJ must consider limitations resulting from all an individual’s

impairments, even those found to be non-severe. Titles II and XVI: Assessing Residual Functional

Capacity in Initial Claims, SSR 96-8p, (S.S.A. 1996) 1996 WL 37418, *5. Although a non-severe

impairment, standing alone, may not significantly limit an individual’s ability to do basic work

activities, when considered with other impairments, it may well be critical to the outcome of the

case. Id.

The Plaintiff disputes the ALJ’s treatment of the evidence concerning his back impairment,

insisting that said evidence clearly establishes his inability to perform the exertional requirements

of light work. We note that the ALJ properly found his back impairment to be severe. In August

2018, the Plaintiff complained of worsening sciatic pain, starting in the right buttock, and radiating

down into his right leg with associated numbness and tingling and occasional weakness. (ECF

No. 8-1, pp. 79-83, 132-135, 355-358). An exam revealed tenderness, pain, and spasms in his

right lower back. Accordingly, Advanced Practice Registered Nurse (“APRN”) Sherilyn Bennett

prescribed Mobic, Flexeril, Norco, and a Medrol Dosepak, referred him to physical therapy (“PT”),

and recommended stretching exercises and heat. His first PT sessions occurred in September,

which he tolerated well. (ECF No. 8-1, pp. 351-352).

On September 25, Dr. Nathan Bennett treated the Plaintiff for persistent pain, numbness,

and tingling in the right side of his lower back that radiated into his right leg. (ECF No. 8-1, pp.

117-213, 217, 246-253, 345-349; ECF No. 8-2, pp. 60-61, 181, 542, 547). His pain was aggravated

by lifting heavy objects at work, sitting, and standing and improved by lying down and moving

around. Lumbar x-rays showed mild disk space narrowing at the L5-S1 level, prompting Dr.

Bennett to prescribe Robaxin and recommend continued PT.

Three days later, he returned to Nurse Bennett reporting significant deterioration in his

symptoms following a recent automobile accident. (ECF No. 8-1, pp. 136-139, 343-345). Neither

physical therapy nor medication was particularly helpful in controlling his pain. On exam, the

Plaintiff exhibited a decreased range of motion (“ROM”) and tenderness in his lumbar spine.

Nurse Bennett prescribed Tylenol #3 and a TENS unit. An MRI ultimately showed a moderate

disc protrusion at the L5-S1 level with an extruded fragment compressing the right S1 nerve root

and thecal sac. (ECF No. 8-1, pp. 56-57, 118, 213, 216; ECF No. 8-2, pp. 59-60, 180, 528-529).

Although he exhibited a normal gait, the Plaintiff’s symptoms persisted. (ECF No. 8-1,

pp. 140-145, 339-341). Nurse Bennett referred him to a neurosurgeon in October. And, on

November 5, 2018, Dr. Jack Zigler at the Texas Back Institute evaluated the Plaintiff. (ECF No.

8-1, pp. 84-90). An exam revealed at least moderately positive straight leg raise (“SLR”) tests

bilaterally; tenderness in the right buttock, worse with extension and right lateral bending; referred

pain in the lower back with resisted knee flexion and extension; decreased sensation in the L5

distribution on the right; hip esthesia in the S1 distribution; and absent Achilles tendon reflexes on

the right. X-rays documented straightening and a 20 percent decrease in anticipated height at the

L5-S1 level. L5-S1 level spot films also suggested a 30 to 40 percent decrease in height at the L5-

S1 level with retrolisthesis. A single intramuscular steroid injection administered two weeks prior

offered no improvement, so Dr. Zigler recommended transforaminal lumbar epidural steroid

injections (“LESIs”) at the L5-S1 level. He also advised the Plaintiff to avoid bending, stooping,

or lifting more than five pounds.

On October 25, 2018, the Plaintiff reported continued pain and radiculopathy with

numbness in his toes. (ECF No. 8-1, pp. 75-78, 145-149, 335-338). His wife was concerned

because he could not sit or stand for prolonged periods, rendering him unable to work. The

Plaintiff was on short-term disability, and Nurse Bennett extended his disability period and advised

that he change positions frequently and not lift over five pounds.

When he returned to the Texas Back Institute in early November 2018, Dr. Blake Staub

assessed him, noting conservative treatment had been ineffective. (ECF No. 8-1, pp. 93-96, 101-

103, 205-207). The Plaintiff appeared uncomfortable, had trouble getting into a fully upright

position when arising from a sitting position, and exhibited a painful ROM in his lumbar spine, a

positive SLR test on the right, and sensory and reflex abnormalities on the right side. Dr. Staub

opined that imaging had showed a large disk herniation at the L5-S1 level compressing the right

nerve root, which was consistent with his symptoms. He recommended a microdiscectomy at the

L5-S1 level with excision of the epidural mass, which he performed on November 16, 2018. (ECF

No. 8-1, pp. 98-100, 180-188, 201). Although the Plaintiff reported some initial improvement in

the numbness in his toes, his lower back pain persisted. (ECF No. 8-1, pp. 154-155, 331-333).

This prompted Nurse Bennett to extend his disability for another month and to restrict him to no

lifting over eight pounds, twisting, or bending.

On December 3, 2018, Dr. Staub prescribed a course of Medrol to treat any residual

inflammation, as he had persistent pain in his right leg, absent ankle reflexes on the right, and

abnormal dermatome sensation at the L5 level. (ECF No. 8-1, pp. 198-200). Despite taking no

prescription pain medication, the Plaintiff was noted to be in no acute distress.

Approximately two weeks later, he reported an improvement in his condition. (ECF No.

8-1, pp. 158-161, 324-326). Nurse Bennett noted a decreased ROM in his lumbar spine and

minimal tenderness to palpation at the L5-S1 level, for which she recommended Ibuprofen and a

muscle relaxer, apply heat, and use a back brace as needed. Thereafter, he reported continued

improvement in his pain. And exams conducted by Dr. Bennett and APRN April Revis in May

and October 2019, respectively, were unremarkable. (ECF No. 8-1, pp. 221-228, 238-243, 255-

265, 275-280, 308-311, 316-320; ECF No. 8-2, pp. 35-36, 156, 405, 414).

In January 2020, APRN Elizabeth Charles treated the Plaintiff at River Valley Primary

Care. (ECF No. 8-1, pp. 281-295, 301-308; ECF No. 8-3, pp. 31-43). In addition to following-up

on his diabetes, hypertension, and hypothyroidism, he reported numbness in both feet and severe

back pain with radiculopathy. He indicated, however, that the numbness was not severe and did

not impact his ability to walk. And an exam revealed a normal ROM with no deficits in strength

or sensation. Three days later, Nurse Charles completed a medical source statement indicating the

Plaintiff could sit for 4 hours at a time for a total of 8 hours; stand for 4 hours at a time for a total

of 4 hours; and walk for 4 hours at one time for a total of 6 hours; would need 5 extra breaks during

the day for 25-45 minutes, and a sit/stand option; could occasionally lift and carry up to 5 pounds,

push/pull, work in an extended position, grasp with the right hand, balance, and climb ramps; could

not use his left lower extremity for operating leg or foot controls; and could only infrequently

perform other postural maneuvers. (ECF No. 8, pp. 266-269; ECF No. 8-1, pp. 528-531). Further,

he had marked restriction working near unprotected heights and being exposed to extremes and

sudden or frequent changes in temperature or humidity and respiratory irritants. She indicated that

Plaintiff’s limitations were due to headaches, diabetic neuropathy, and a ruptured lumbar disc with

radiculopathy.

Physical exams in November and December 2020 revealed no abnormalities, despite

Plaintiff’s diagnosis of peripheral neuropathy. (ECF No. 8-2, pp. 1-11, 239-243, 260-264; ECF

No. 8-3, pp. 9-29).

No further treatment for back related impairment was sought out until January 8, 2021, the

day after the administrative hearing. (ECF No. 8-2, p. 719; ECF No. 8-3, pp. 1-8). Dr. Bennett

noted that the Plaintiff had been taking Ibuprofen and/or Tylenol daily because he could not

tolerate Hydrocodone. Once again, he exhibited a normal musculoskeletal ROM with lumbar

tenderness and decreased sensation in the feet and lower legs but normal muscle tone and

coordination. Dr. Bennett noted classic bone changes and some joint overgrowth and tenderness

compatible with generalized osteoarthritis and DDD of cervical and lumbar spine, indicating the

Plaintiff was unable to return to work and that his health was not likely to improve in the future.

As noted by the ALJ, the inconsistency between Plaintiff’s reports of disabling back pain

and radicular symptoms and his treatment for said pain, the largely normal results of his

examinations, the conservative nature of the treatment prescribed during the relevant period, and

the Plaintiff’s use of over-the-counter pain medications suggest that he may have been overstating

the amount of pain he was experiencing. See Pierce v. Kijakazi, 22 F.4th 769, 772 (8th Cir. 2022)

(RFC is determined by considering all relevant evidence). We find that the ALJ adequately

accounted for the Plaintiff’s post-surgical residual symptoms by limiting him to a restricted range

of light work with postural limitations. Additional functional limitations are simply not borne out

by the record.

The Plaintiff also alleges that the ALJ ignored his chronic fatigue, which he contends

resulted from a variety of sources, including diabetes, thyroid imbalance, and medication side

effects. Our review of the record, however, reveals no consistent reports of either fatigue or

medication side effects. In fact, at times, he specifically denied experiencing fatigue.

Next, he maintains that his depression and anxiety were not properly considered by the

ALJ. As previously discussed, though, the record clearly indicates that the Plaintiff’s depression

was treated conservatively and effectively via medication prescribed by his primary care physician

with consistently normal mental status examinations. Therefore, the record does not support

mental restrictions.

Plaintiff argues the ALJ improperly dismissed the assessments of Nurse Charles and Dr.

Bennett. However, the ALJ evaluated the supportability and consistency of Nurse Charles’

opinions and found them to be unpersuasive. He properly considered the fact that Nurse Charles

had only examined the Plaintiff on one occasion prior to rendering her opinion. See 20 C.F.R. §

404.1520c(c)(3) (under the applicable regulations, the ALJ may consider a medical source’s

relationship with a claimant including the length and frequency of treatment). And the ALJ

observed that Nurse Charles assessed the Plaintiff with severe and marked limitations in numerous

areas of psychological functioning, and moderate limitations in virtually every other area of

functioning but noted these limitations were not supported by either her own mental status

examination findings or those of other examiners. Under the appliable regulations, an ALJ may

find a medical opinion less persuasive when it is unsupported by the provider’s own notes. See 20

C.F.R. § 404.1520c(c)(1) (“The more relevant the objective medical evidence and supporting

explanations presented by a medical source are to support his or her medical opinion(s) or prior

administrative medical finding(s), the more persuasive the medical opinions or prior administrative

medical finding(s) will be.”). Similarly, Nurse Charles’s physical RFC assessment did not

correlate with the limitations she assessed. Rather, her treatment notes document a normal ROM

with only subjective tenderness pain over his lumbar spine and radicular symptoms in his right

leg. Nurse Charles found no deficits in sensation or strength. See id. And, as previously discussed,

the examinations of other treatment providers also fail to lend support to her assessment.

The Plaintiff also takes issue with the ALJ’s reliance on the opinions of the non-examining

agency physicians. However, an ALJ may properly find the state agency medical sources highly

persuasive, although they did not actually examine a claimant. Agency physicians are reliable

because they “are familiar with the disability evaluation process and its requirements.” See Bowers

v. Kijakazi, 40 F.4th 872, 875-76 (8th Cir. 2022).

In the present case, Dr. Kevin Santulli reviewed the record on April 8, 2020, and concluded

the Plaintiff’s mental impairments were not severe. (ECF No. 8, pp. 81-82). That same day, Dr.

Kristin Jarrad concluded the Plaintiff could perform a full range of light work. (ECF No. 8, pp.

83-84).

On May 5, 2020, Dr. Christal Janssen reviewed the record on reconsideration, noting the

objective findings were unremarkable and that the Plaintiff’s mental impairments had responded

to the medication prescribed by his primary care physician. (ECF No. 8, pp. 93-94). Accordingly,

she affirmed Dr. Santulli’s assessment. Dr. Jim Takach also reviewed the Plaintiff’s medical

records on May 5, 2020. (ECF No. 8, pp. 95-97). He concluded the Plaintiff could perform light

work with occasional climbing, balancing, stooping, kneeling, crouching, and crawling.

Thus, while some evidence in the record could lend support to a more restrictive RFC

finding, we cannot say that the ALJ’s decision “lies outside the available zone of choice.” See

Nash v. Comm’ r of Soc. Sec. Admin., 907 F.3d 1086, 1090 (8th Cir. 2018) (“This court defers to

the ALJ’s determinations ‘as long as good reasons and substantial evidence support the ALJ’s

evaluation[.]’”) (quoting Julin v. Colvin, 826 F.3d 1082, 1086 (8th Cir. 2016)).

We also find no merit in the Plaintiff’s argument that the ALJ failed to properly evaluate

his subjective complaints. The ALJ is required to consider all the evidence relating to Plaintiff’s

subject complaints, including: (1) Plaintiff’s daily activities; (2) the duration, frequency, and

intensity of his pain; (3) precipitation and aggravating factors; (4) dosage, effectiveness, and side

effects of his medication; and (5), functional restrictions. See Polaski v. Heckler, 739 F.2d 1320,

1322 (8th Cir. 1984). An ALJ may not discount the Plaintiff’s subjective complaints solely

because the medical evidence fails to support them. Id. However, “[a]n ALJ . . . may disbelieve

subjective reports because of inherent inconsistencies or other circumstances.” Wright v. Colvin,

789 F.3d 847, 853 (8th Cir. 2015) (citing Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007)

(quotation and citation omitted).

As discussed above, the ALJ offered multiple reasons for concluding Plaintiff’s subjective

complaints were not entirely consistent with the record. The Plaintiff’s own reports of his activities

of daily living lend further support to the ALJ’s findings. The Plaintiff indicated he could care for

his cat and his personal hygiene, prepare simple meals daily, do laundry, wash dishes, go outside

daily, drive, go out alone, shop in stores weekly, handle his finances, fish, and attend church. (ECF

No. 8, pp. 209-216). We find these activities to be consistent with the ability to perform light work

with postural limitations. See Bryant v. Colvin, 861 F.3d 779, 783 (8th Cir. 2017) (deferring to

ALJ’s credibility determination if it is supported by good reasons and substantial evidence). There

is also no evidence of medication side effects that would further limit his ability to perform work-

related activities. As such, the undersigned finds substantial evidence to support the ALJ’s RFC

determination.

C. Step Four

In his final argument, the Plaintiff disagrees with the ALJ’s step four determination that he

can return to his PRW. Plaintiff’s argument is predicated on the fact that the ALJ’s RFC

determination is flawed, which we have concluded has no merit. And we note that testimony from

a vocational expert based upon a properly phrased hypothetical question constitutes substantial

evidence supporting the ALJ’s decision. See Milam v. Colvin, 794 F.3d 978, 985-86 (8th Cir.

2015).

A review of the transcript shows that the ALJ’s hypothetical question properly included

only those functional limitations that were well supported by the record and included in the ALJ’s

RFC determination. Therefore, we conclude that the ALJ properly relied on the testimony of the

vocational expert to determine that Plaintiff could perform his past relevant work in addition to

other jobs existing in significant numbers in the national economy.

IV. Conclusion

For the reasons and upon the authorities discussed above, it is recommended that the ALJ’s

decision be affirmed, and that the Plaintiff’s Complaint be dismissed with prejudice.

The parties have fourteen (14) days from receipt of our report and recommendation

in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely

objections may result in waiver of the right to appeal questions of fact. We remind the parties

that objections must be both timely and specific to trigger de novo review by the district

court.

DATED this 12th day of July 2023.

/s/ Mark E. Ford

HON. MARK E. FORD

CHIEF UNITED STATES MAGISTRATE JUDGE