Richardson v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

CHRISTINA RUTH RICHARDSON PLAINTIFF

V. Civil No. 2:22-cv-02170-PKH-MEF

KILOLO KIJAKAZI, Acting Commissioner,

Social Security Administration DEFENDANT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff, Christine Richardson, 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 her 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 protectively filed her application for DIB on March 27, 2019, alleging an onset

date (“AOD”) of March 27, 2019, due to fibromyalgia, chronic fatigue syndrome (“CFS”),

interstitial cystitis, anxiety, depression, insomnia, an abnormal gait, chronic pain, a Vitamin D

deficiency, anemia, joint pain, a ganglion cyst in her right wrist, and gastrointestinal reflux disease

(“GERD”). (ECF No. 10, pp. 29, 78, 98, 171-177, 198, 227-228, 255-256). The Commissioner

denied her applications initially and on reconsideration, and an administrative hearing was held

before Administrative Law Judge (“ALJ”) Edward Starr on September 29, 2020. (Id. at 51-80).

The Plaintiff was telephonically present for the hearing and represented by counsel.

On her alleged onset date, Plaintiff was 28 years old and possessed a high school education.

(ECF No. 10, pp. 43, 199). She had past relevant work (“PRW”) experience as an insurance clerk,

housekeeper/cleaner, bartender helper, data entry clerk, and administrative clerk. (Id. at 42, 200,

218-225).

On May 25, 2021, Dr. Subramaniam Krishnamurthi proffered answers to interrogatories

propounded by ALJ Starr. (ECF No. 10, pp. 770-779). Likewise, on July 26, 2021, vocational

expert (“VE”), Tanya Owens, responded to the ALJ’s written interrogatories. (Id. at 303-306).

In an unfavorable decision dated September 24, 2021, ALJ Starr concluded that the

Plaintiff’s fibromyalgia, osteoarthritis, major joint dysfunction, disorder of the gastrointestinal

system, anxiety, depression, and personality disorder were severe but did not meet or medically

equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (ECF

No. 10, p. 32). Despite her impairments, he determined she retained the residual functional

capacity (“RFC”) to perform light work requiring only occasional climbing stairs/ramps,

balancing, crawling, kneeling, stooping, and crouching; frequent fingering, handling, and reaching

bilaterally; and no climbing ropers/ladders/scaffolds or work near unprotected heights or moving

machinery. (Id. at 33-34). ALJ Starr further limited her to work involving interpersonal contact

that is incidental to the tasks performed; simple tasks; and simple, direct, and concrete supervision.

Based on the VE’s testimony, the ALJ determined that Plaintiff could perform work as an injection

molding machine tender, electrical assembler, and deliverer. (Id. at 43).

On September 6, 2022, the Appeals Council denied Plaintiff’s request for review (ECF No.

10, pp. 6-11), and she subsequently filed her Complaint to initiate this action. (ECF No. 2). Both

parties have filed appeal briefs (ECF Nos. 13, 14), and the matter is ripe for resolution. The case

has been referred to the undersigned 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 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 her disability

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

her 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 her disability, not simply her

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

only consider Plaintiff’s age, education, and work experience in the light of her residual functional

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

III. Relevant Medical Evidence

Because the Plaintiff’s AOD is March 27, 2019, medical records predating her AOD will

only be used to elucidate her condition during the relevant period. Cox v. Barnhart, 471 F.3d 902,

907 (8th Cir. 2006) (holding records and medical opinions dated outside the relevant period can

only be used in “helping to elucidate a medical condition during the time for which benefits might

be rewarded”).

Records dating back to 2015 document a history of chronic neck, back, knee, shoulder,

hand, and foot pain; fibromyalgia; CFS; chronic interstitial cystitis; Vitamin D deficiency; and

mixed anxiety and depression. (ECF No. 10, pp. 317-319, 322-336, 340-345, 362-366, 370-374,

380-385, 461-465). Macrobid, Meloxicam, Tolterodine, Oxybutynin, Toviaz, Myrbetriq, Egoscue

exercises, Frankincense oil, CBD oil, Curcumin, Hydroxyzine, and Vitamin D were tried without

significant improvement. And, on November 17, 2015, the Plaintiff underwent iliopsoas tendon

release in the left hip (cutting of the tendon) to relieve pain and restore range of motion (“ROM”).

(Id. at p. 661).

In 2018, an MRI of the Plaintiff’s cervical spine showed mild spondylosis at the C3-4 level,

a small central disk protrusion at the C5-6 level, and mild flattening of the ventral thecal sac at the

C3-4 and C5-6 levels with no significant canal or neural foraminal stenosis. (Id. at 320-321, 375).

Further, x-rays of her sacroiliac joints and knees showed no significant abnormalities, while an

ultrasound of her hands documented normal bone, muscle, tendon, joints, and median nerves with

a small ganglion cyst in the right mid-wrist. (Id. at 340, 352, 356-357, 358-359).

In February 2019, Plaintiff’s general practitioner, Dr. Michael Cole, prescribed

Clonazepam to address her increasing anxiety. (ECF No. 10, pp. 380-385, 461-465). The Plaintiff

advised him she was very overwhelmed and on the brink of a mental breakdown. As she was too

thin, he advised her to continue taking the appetite stimulant Marinol/Dronabinol and the Vitamin

D supplement and ordered an endoscopy work-up that ultimately showed mild chronic inactive

gastritis with no evidence of H. Pylori infection. (Id. at 394-400).

By March 21, Mobic was aggravating her stomach and the Marinol was no longer effective.

(ECF No. 10, pp. 346-351). An exam documented scattered mild to moderate fibromyalgia tender

points. Accordingly, rheumatologist Dr. Russell Branum gave her samples of Pennsaid (a topical

arthritis medication) and referred her to Dr. Swicegood to discuss injections.

In June, she returned to Dr. Cole with complaints of easy bruising. (ECF No. 10, pp. 453-

458, 468-470). An exam revealed tenderness in the neck muscles, hips, knees, and mid-calf with

normal ambulation, gait, station, balance, and coordination. Dr. Cole advised her to resume the

Vitamin D supplement, encouraged her to gain weight, and told her to discontinue the appetite

stimulant Marinol/Dronabinol as she was also using marijuana.

A week later, neurologist Dr. Janice Keating evaluated the Plaintiff for restless leg

syndrome (“RLS”) and tremor. (ECF No. 10, pp. 489-494, 497-500). Despite complaints of

shaking “all over,” an exam showed only a mild to moderate exaggerated psychological/postural

tremor in the upper extremities, breakaway weakness throughout all her muscle groups due to

diffuse body pain, and a normal mood and affect. Dr. Keating concluded that her tremor was

aggravated by both anxiety and pain and prescribed a trial of low-dose Propranolol (Inderal). She

diagnosed mixed depression/anxiety disorder with some somatization tendencies and

recommended a psychiatric consultation, noting that the Plaintiff’s addictive and abuse potential

for Benzodiazepines was high.

On June 26, 2019, Dr. Samuel Hester conducted a consultative mental evaluation. (ECF

No. 10, pp. 416-424). She was not currently in treatment, but the Plaintiff reported an extensive

history of mental health treatment, since age 12, with one inpatient stay in 2009 due to substance

abuse (cocaine). And, although she was an anxious child with a history of cutting herself, the

Plaintiff denied difficulty getting along with others in the workplace. Dr. Hester noted she did

move around as if she were in pain but exhibited only a slightly depressed mood with an

appropriate affect, normal speech and thought content, and logical thought processes. Further, the

Plaintiff was alert and fully oriented. Dr. Hester diagnosed anxiety disorder, adjustment disorder

with depressed mood, pain disorder, borderline personality traits, fibromyalgia, cystitis, gastritis,

and irritable bowel syndrome. Regarding her activities, the Plaintiff advised the physician that she

could perform most activities of daily living (“ADLs”) autonomously but needed assistance getting

into and out of the bathtub and buttoning/fastening her garments. While she maintained the

capacity to communicate and interact in a socially adequate manner, communicate in an intelligible

and effective manner, cope with the mental demands of work tasks, attend and sustain

concentration on basic tasks, and sustain persistence in completing tasks, Dr. Hester concluded she

would likely be unable to complete tasks within an acceptable timeframe due to chronic pain and

frequent toileting.

The following day, Dr. Jim Takach reviewed the record and concluded the Plaintiff could

perform light work with occasional climbing, balancing, stooping, kneeling, crouching, and

crawling. (ECF No. 10, pp. 91-92).

On June 28, Dr. Marilyn Jordan conducted an independent review of the record and found

no evidence of a severe mental impairment. (ECF No. 10, pp. 88-89). She assessed the Plaintiff

with mild restrictions in the following areas: interacting with others, concentrating, persisting, and

maintaining pace. No limitations in understanding, remembering, applying information, or

adapting and managing oneself were noted.

In July, gastroenterologist Hrair Simonian treated the Plaintiff for abdominal pain. (ECF

No. 10, pp. 531-527). After a physical exam revealed no gastrointestinal tenderness, guarding

rebound, or masses, no abdominal distention and a normal gait, ambulation, motor strength, tone,

and movement, the doctor diagnosed nausea and abdominal pain and prescribed Zofran. He also

ordered a hepatobiliary iminodiacetic acid (“HIDA”) scan.

Two weeks later, the Plaintiff returned to Dr. Cole with complaints of mixed anxiety,

depression, insomnia, chest pain, and left shoulder pain. (ECF No. 10, pp. 430-434, 445-450, 646-

652). As she had applied for disability, she also asked him to complete an RFC assessment. An

exam showed her to be in mild distress, anxious, and depressed with a limited ROM and tenderness

in her left shoulder. Further, an EKG revealed bradycardia, likely due to Propranolol. However,

because it was somewhat helpful to her fibromyalgia, Dr. Cole advised her to continue it. He then

diagnosed CFS, bradycardia, fibromyalgia, and insomnia disorder, indicating that her CFS was an

ongoing problem that was severe enough to justify long-term disability as there was no expectation

of improvement. Additionally, Dr. Cole noted that her anxiety and depression had resulted in an

increased unwillingness to leave home. Because the Clonazepam was no longer effective, he

advised her to discontinue it but directed her to resume Temazepam.

That same day, Dr. Cole completed a Medical Source Statement. (ECF No. 10, pp. 435-

436). Having treated the Plaintiff since 2014, he reported diagnoses of chronic pain syndrome

(“CPS”), chronic obstructive pulmonary disease (“COPD”), chronic interstitial cystitis,

fibromyalgia, CFS, generalized anxiety disorder, and tremor. Dr. Cole concluded that the

Plaintiff’s symptoms were severe enough to frequently interfere with the attention and

concentration required to perform simple work-related tasks. He opined the Plaintiff could sit for

45 minutes at a time for a total of 4 hours; stand/walk for 10 minutes continuously for a total of 1

hour; and lift/carry up to 5 pounds frequently, 10 pounds occasionally, and 20 pounds rarely but

never more. Further, Dr. Cole concluded she could use her hands for repetitive actions such as

reaching with the right upper extremity but could not reach with the left upper extremity or

push/pull, grasp, or fine manipulate with either upper extremity; use her feet for repetitive

movements such as operating foot controls; squat, crawl, climb, stoop, crouch, or kneel; or tolerate

exposure to unprotected heights. She would also need unscheduled breaks and could frequently

bend, reach above her head, work around moving machinery, drive automotive equipment, and be

exposed to noise.

On July 22, Plaintiff consulted with Dr. Cole regarding a recent emergency room (“ER”)

visit for a possible seizure. (ECF No. 10, pp. 441-445, 642-646). She had no history of seizure

activity but reported collapsing when she stood up to walk. Her husband said she fell to the floor,

her eyes rolled back in her head, she gurgled, and was trembling all over. An ambulance was

called but the Plaintiff refused transport for financial reasons. So, her husband drove her to the

ER for evaluation. She had bruising on her buttocks and arms, but a CT scan of her head showed

no acute intracranial abnormality. (Id. at 586-587). The ER physician advised her not to drive

until she was medically cleared by neurology. At the time of her appointment, Dr. Cole noted her

to be too thin and in mild distress with abnormal muscle strength; a weak grip; a normal gait,

station, balance, and coordination; and a normal mental status exam. The Plaintiff had

discontinued Propranolol, although the ER doctor did not believe it played a role in her episode,

as dizziness and faintness are known side effects. Dr. Cole referred her to Dr. Keating, advised

her to discontinue the Ropinirole, and encouraged her to gain weight. He also renewed his

directive not to take Marinol/Dronabinol as she was using marijuana.

Dr. Keating evaluated the Plaintiff on July 30, 2019, concluding that she was likely

suffering from an exaggerated physiological tremor, RLS, and severe anxiety. (ECF No. 10, pp.

481-488). She advised the doctor that her primary care physician had noted a low heart rate,

although Dr. Keating had no record of this, and complained of continued tremors, fear, and anxiety.

An exam revealed a depressed and anxious mood; tearfulness throughout the exam; a mild to

moderate exaggerated physiologic/postural tremor; and a normal gait with some slow and cautious

functional overlay. Although the Plaintiff was using a large walking stick, she was able to

independently walk back and forth across the exam room without ataxia. After diagnosing syncope

and collapse, possibly related to bradycardia with a psychogenic overlay, Dr. Keating

recommended that she not drive, climb ladders or scaffolds, or swim alone. Further, she ordered

an MRI and an EEG. The EEG documented some diffuse low voltage fast frequency beta activity

over both hemispheres consistent with medication side effects, while the MRI showed a few

scattered increased flair and T2 signal intensities in the subcortical likely related to vasculitis,

demyelinating process, migraine disorder, or early chronic small vessel white matter ischemic

change. (Id. at 495-496, 582-583, 590-591). No evidence of epilepsy was noted on either scan.

In mid-August, the Plaintiff consulted urologist, Dr. John Terrell, for continued complaints

of frequency, urgency, and hesitancy of stream. (ECF No. 10, pp. 504-510, 528-534). Dr. Terrell

also noted the Plaintiff to be too thin. She was, however, ambulating normally with a cane and

exhibited a normal gait, station, muscle strength, and tone with no tenderness. From a mental

perspective, her mood, affect, and memory was unremarkable. Following a clear urine analysis,

Dr. Terrell diagnosed chronic interstitial cystitis, urge incontinence, and bladder muscle

dysfunction. As she had already tried and failed Oxybutynin, Toviaz, and Myrbetriq, he prescribed

Tolterodine and advised her to continue taking Macrobid postcoitally. Further, because she

expressed some interest in an InterStim trial, Dr. Terrell indicated she would need clearance from

neurology.

A few days later, neurologist Dr. Steve-Felix Belinga evaluated the Plaintiff for her leg

cramps and tremors, which she reported to occur both at rest and in response to stress. (ECF No.

10, pp. 626-629). An exam revealed a normal mental status exam with fine tremor of the

extremities, normal bulk and tone, normal strength in all her extremities, a normal ROM, normal

sensation, and an antalgic gait. After noting what appeared to be substantial degenerative issues

in the neck, hip, and knees, which could account for her leg cramping, pain, and paresthesias, Dr.

Belinga diagnosed mild sensory neuropathy of the lower extremities. As she had failed both Lyrica

and Gabapentin, he prescribed Primidone and ordered nerve conduction studies that ultimately

documented mild sensory neuropathy of the lower extremities.

The Plaintiff returned to Dr. Belinga on September 26, 2019. (ECF No. 10, pp. 630-632).

She advised him that Primidone was helpful, and Dr. Belinga diagnosed essential tremor,

hereditary and idiopathic neuropathy, spinal stenosis, and neurogenic claudication in the lumbar

region. After noting a very fine tremor in the extremities, a normal mental status exam, normal

sensation, coordination, strength in all extremities, normal bulk and tone, a normal ROM, and an

antalgic gait (limp), he prescribed Tizanidine.

On November 6, the Plaintiff presented in Dr. Cole’s office for continued complaints of

insomnia and fatigue. (ECF No. 10, pp. 660-667, 715-717). She wanted to taper off Temazepam

and try Ramelteon for insomnia. Plaintiff’s gait was consistent with the diffuse muscular

tenderness noted on exam, but her coordination was intact, and her mental status was normal. Dr.

Cole diagnosed chronic kidney disease, stage 3; insomnia; fibromyalgia; and CFS. He prescribed

a trial of Gabapentin and Metformin for her fibromyalgia and encouraged weight gain.

In December 2019, Dr. Dan Gardner reviewed the medical record and affirmed Dr.

Takach’s physical RFC determination. (ECF No. 10, pp. 108-109). Likewise, Dr. Jon Mourot

conducted an independent review of the evidence and affirmed Dr. Jordan’s assessment of no

severe mental impairment. (Id. 105-107).

The Plaintiff did not return to Dr. Cole’s office until February 7, 2020, at which time she

renewed her complaints of nocturia, anxiety, anemia, fibromyalgia, and insomnia. (ECF No. 10,

pp. 568-574, 667-678, 718-733). An exam revealed mild bilateral costovertebral angle tenderness,

a limited ROM in the right shoulder due to pain, an abnormal gait, and a normal mental status. At

the Plaintiff’s request, Dr. Cole completed a handicap parking permit form, ordered labs, advised

her to gain weight, resumed the Temazepam at bedtime for RLS, increased her Gabapentin dosage,

and recommended the use of heat, over the counter (“OTC”) arthritis medications, and topical rubs

as needed.

Approximately two weeks later, the Plaintiff saw Dr. Belinga in follow-up of her tremors.

(ECF No. 10, pp. 633-635). She also reported some right ribcage and right lower extremity bone

pain. He noted she had recently resumed Temazepam for RLS but was only taking it twice weekly.

Following an unchanged exam, Dr. Belinga noted her to be stable overall. Primidone was still

helping, although she continued to shake in response to pain. He indicated this could be a symptom

of multiple sclerosis (“MS”) which would require further work-up. Dr. Belinga continued the

Primidone, Tizanidine, and Gabapentin and ordered a CT scan of her thoracic spine. Although he

did not have an alternative to offer her, he also opined she needed to work toward the

discontinuation of Temazepam.

When the Plaintiff returned to Dr. Cole on February 26, she was reportedly experiencing

marked chest pain in the right lower anterior and lateral chest. (ECF No. 10, pp. 678-684). An

exam showed marked tenderness inferior to the medial right breast and in the inferior right sternum

but was otherwise unremarkable. Dr. Cole diagnosed costal chondritis and COPD, advised

smoking cessation, and prescribed Meloxicam.

On March 3, 2020, Dr. Belinga noted her to be about the same. (ECF No. 10, pp. 636-

638). He still could not rule out MS and, although a spinal tap would provide a definitive answer,

voiced his fear that performing a spinal tap would aggravate her pain. Dr. Belinga noted her

fibromyalgia diagnosis, indicating that she did not like any of the fibromyalgia treatment options

offered. As such, he was uncertain how to proceed. Therefore, he advised that she could taper off

the Primidone if she wished to do so; should continue Tizanidine and Gabapentin; and prescribed

a trial of Requip.

In May, the Plaintiff reported that her tremors had not changed much, but she admitted that

they “were not too bad.” (ECF No. 10, pp. 639-641). Primidone remained helpful, resulting in

minimal shaking. Dr. Belinga concluded it was unlikely to be MS, given the level of associated

pain and the unremarkable nature of the MRIs of the brain and thoracic spine. He advised her to

continue the Primidone, Tizanidine, and Gabapentin, but to discontinue the Requip.

The following day, a follow-up with Dr. Cole documented a fibromyalgia flare-up. (ECF

No. 10, pp. 684-692, 734). An exam revealed a rare shallow cough; left shoulder tenderness at the

superior left scapula; pain with motion in the left shoulder; mild crepitus with motion in the left

shoulder; tiny nontender lymph nodes over the left mastoid and inside the posterior hairline on the

right; and tiny, superficial, itchy abrasions inferior to the right mandible. Dr. Cole prescribed

Meloxicam, Gabapentin, and Vitamin D and indicated physical therapy would be prescribed if her

pain worsened. At this time, the Plaintiff specifically denied nervousness and anxiety.

On August 18, 2020, neurologist, Dr. Michael Morse noted reasonably good control on

Primidone and Temazepam. (ECF No. 10, pp. 552-554). Unfortunately, the Gabapentin had been

ineffective. And, while the Plaintiff felt the Requip was helpful, she was concerned about the side

effects. Because she was ingesting a significant amount of caffeine, Dr. Morse advised her to

drink decaffeinated beverages, gave her permission to take an extra Primidone on the days her

tremor was worse, and referred her to Dr. Eckels for her COPD.

That same day, rheumatologist Dr. Song Zang evaluated the Plaintiff for chronic pain and

anxiety/depression. (ECF No. 10, pp. 549-551). Despite a normal exam, he prescribed Celecoxib

(NSAID), Savella, and a trial of Celebrex to treat her fibromyalgia.

On September 20, the Plaintiff advised Dr. Zang that, although it was helpful, she could

not afford the Celebrex. (ECF No. 10, pp. 547-548). Therefore, he refilled the Celecoxib,

discontinued the Savella and Celebrex, and prescribed Pregabalin (treats nerve and muscle pain).

Dr. Zang also provided her with a trial of Lyrica, advising her to hold the Neurontin if her insurance

covered the Lyrica.

On May 25, 2021, the ALJ contacted Dr. Subramaniam Krishnamurthi for an expert

opinion. (ECF No. 10, pp. 770-779). After reviewing her medical records, he opined that the

Plaintiff could frequently lift/carry up to 10 pounds, occasionally lift/carry 20 pounds but never

lift/carry more; sit for three hours at once for a total of six hours per day; stand/walk for one hour

at a time for a total of three hours; frequently reach in all directions, handle, finger, feel, and

pull/push bilaterally; occasionally climb stairs and ramps; and never work near unprotected heights

or moving mechanical parts. Further, he indicated she could frequently operate a motor vehicle

and be exposed to environmental extremes, vibrations, and loud noises.

IV. Discussion

Plaintiff raises four issues on appeal: (1) whether the ALJ fully and fairly developed the

record; (2) whether the ALJ erred at Step Two of the sequential analysis; (3) whether the ALJ

properly assessed her subjective complaints; and (4) whether the ALJ’s RFC determination is

supported by substantial evidence.

A. Development of the Record

In her first issue, the Plaintiff maintains that the ALJ failed to fully develop the record

because he relied on the opinions of non-examining agency physicians rendered without the benefit

of later acquired medical evidence, as well as the assessment of Dr. Krishnamurthi, whom the

Plaintiff insists was not qualified as an expert in this case. Following a thorough review of the

record, we disagree.

While the ALJ does owe a duty to a claimant to develop the record fully and fairly to ensure

that his decision is an informed decision based on sufficient facts, the ALJ is only required to

develop a reasonably complete record. See Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004);

see also Whitman v. Colvin, 762 F.3d 701, 707 (8th Cir. 2014) (citing Clark v. Shalala, 28 F.3d

828, 830-31 (8th Cir. 1994)). An ALJ need not recontact a treating or consulting physician unless

a critical issue is undeveloped, and an ALJ is not required to order medical examinations and tests

unless the medical records presented do not provide sufficient evidence upon which a disability

determination can be made. Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir. 2010) (quotation,

alteration, and citation omitted). Notwithstanding, there is no requirement that the ALJ’s RFC

finding be supported by a specific medical opinion. Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir.

2016). Instead, the RFC is a decision reserved to the agency such that it is neither delegated to

medical professionals nor determined exclusively based on the contents of medical records. See

Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) (medical opinion that a claimant is disabled

or unable to work is not entitled to controlling weight). Thus, while there must be some evidence

of the Plaintiff’s ability to function in the workplace, every aspect of the RFC is not required to be

supported by a specific medical opinion. Twyford v. Comm’r, Soc. Sec. Admin., 929 F.3d 512, 518

(8th Cir. 2019) (quoting Hensley, 829 F.3d at 932).

Additionally, and of significance to this case, is the fact that the Social Security

Administration revised its medical source regulations for claims filed on or after March 27, 2017.

Revision to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg.

5844-01, at *5844 (Jan. 18, 2017). Under the new regulations, treating physicians are no longer

entitled to deference. 20 C.F.R. § 404.1520c(a); Austin v. Kijakazi, 52 F.4th 723, 728-30 (8th Cir.

2022) (under revised regulations, treating physicians’ opinions are no longer entitled to special

deference and prior precedent applying treating-source rule was inapposite). Rather, the ALJ must

evaluate medical opinions according to the following factors: supportability, consistency,

relationship with the claimant, specialization, and other factors with the two most important factors

being supportability and consistency. 20 C.F.R. §§ 404.1520c(b)(2), (c)(1)-(5). Thus, the ALJ

may rely on the opinions of agency physicians, who are highly qualified physicians and disability

experts, when their opinions are supported by the overall record. Kraus v. Saul, 988 F.3d 1019,

1025-1026 (8th Cir. 2021).

Here, the record contains treatment notes from the Plaintiff’s general practitioner, Dr. Cole;

rheumatologists, Drs. Deneke, Branum, and Zang; urologist, Dr. Terrell; gastroenterologist, Dr.

Simonian; and neurologists, Drs. Keating, Morse, and Belinga; RFC assessments completed by

four agency physicians; a Medical Source Statement prepared by Dr. Cole; the opinion of medical

expert, Dr. Subramaniam Krishnamurthi; the results of objective tests, including MRIs, CT scans,

and ultrasounds; the Plaintiff’s testimony; and the Plaintiff’s reports of both symptoms and

activities. As we interpret the record, nothing is ambiguous or inadequate such that the ALJ would

be required to order a consultative examination or recontact an examining or treating physician.

See 20 C.F.R. § 404.1520b(b). We find this evidence sufficient to support the ALJ’s conclusion

that the Plaintiff was not disabled. Swink v. Saul, 931 F.3d 765, 770 (8th Cir. 2019) (holding ALJ

permitted to issue decision without obtaining additional medical evidence where other evidence in

record provided sufficient basis for decision).

Contrary to Plaintiff’s argument, the mere fact that additional evidence became available

after the experts issued their opinions does not render their assessments unreliable. See McClure

v. Saul, 2022 WL 2072661, at *10 (E.D. Mo. June 9, 2022) (Because agency physician review

precedes ALJ review, there is always some time lapse between the consultant’s report and the ALJ

hearing and decision). This is especially true when, as in this case, the later acquired records were

considered by both the ALJ and Dr. Krishnamurthi in his May 2021 interrogatory responses. (ECF

No. 10, pp. 37-41).

There is also no rule that prohibits an ALJ from obtaining the opinion of a medical expert,

as opposed to a consultative exam. See Coffin v. Sullivan, 895 F.2d 1206, 1210-1213 (8th Cir.

1990) (discussing due process requirements regarding post-hearing interrogatories); Passmore v.

Astrue, 533 F.3d 658, 664-666 (8th Cir. 2008) (applying Coffin to medical experts). And, as

previously discussed, when the expert’s opinion is supported by the overall record, the ALJ is

entitled to rely on it. See Kraus, 988 F.3d at 1025-1026.

The Plaintiff, however, argues that the ALJ could not rely on Dr. Krishnamurthi’s opinion

because the doctor did not examine her. While this is true, Dr. Krishnamurthi did review her

medical records. The Plaintiff also claims he is disqualified as an expert because he is an elderly

and retired cardiologist, educated in India, and who is voicing an opinion in a non-cardiac case.

Interestingly, his resume reveals he is a certified disability analyst holding an Oklahoma medical

license with certifications in both internal medicine and cardiology, having completed a residency

and fellowship in each, respectively, at the Veteran’s Administration Medical Center in Bronx,

New York. (ECF No. 10, pp. 754-755). His primary practice has been in both internal medicine

and cardiology, although the Plaintiff is correct in her assertion that his later work was in

cardiology. Id. Aside from her assertions, the Plaintiff has made no showing that Dr.

Krishnamurthi is not qualified to serve as a medical expert. We also note that she failed to raise

any concerns regarding Dr. Krishnamurthi’s qualifications at the agency level. Accordingly, we

find that a licensed and experienced physician and certified disability analyst is clearly qualified

to serve as a medical expert in this case.

Therefore, because the ALJ had ample evidence upon which to base his opinion and was

not required to rely on the assessment of a specific examining or treating source in rendering said

opinion, the Plaintiff’s argument must fail. Hensley, 829 F.3d at 932.

B. Step Two

Plaintiff next insists that the ALJ erred by failing to include her CFS and essential tremors

as severe impairments. At Step Two, 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). “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)). Failure

to find a particular impairment to be severe at Step Two, however, is not a reversible error unless

the ALJ ends his analysis at Step Two. See Bowen, 482 U.S. at 156-157 (“failure to find a

particular impairment severe at step two is not reversible error as long as the ALJ finds that at least

one other impairment is severe”); Valley v. Astrue, 2011 WL 5999260, at *2 (E.D. Ark. Nov. 29,

2011) (step two error harmless where ALJ proceeded past step two and considered all of claimant’s

impairments).

In the present case, the ALJ concluded Plaintiff’s fibromyalgia, osteoarthritis, major joint

dysfunction, disorder of the gastrointestinal system, anxiety, depression, and personality disorder

were severe impairments. (ECF No. 10, p. 32). He determined that her remaining impairments,

“including COPD, sleep apnea, tremors and insomnia” were non-severe impairments because they

would not result in more than minimal limitations in the Plaintiff’s ability to engage in work-

related activities. The ALJ then proceeded through the remaining steps in the sequential process.

Therefore, any Step Two error is harmless unless he also failed to consider it in the RFC

determination.

C. Subjective Complaints Analysis

The Plaintiff also posits that the ALJ erroneously interpreted her daily activities, failed to

set forth the inconsistencies upon which he relied to reject her subjective complaints, and did not

provide reasons for discounting her subjective complaints of pain and mental limitation.

An ALJ is required to consider all the evidence relating to a claimant’s subjective

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

the pain; (3) precipitation and aggravating factors; (4) dosage, effectiveness, and side effects of

medication; and (5) functional restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.

1984). In so doing, the ALJ must also consider the claimant’s prior work record, observations

made by third parties, and the opinions of treating and examining physicians. Id. The Eighth

Circuit has held, however, that an ALJ is not required to discuss each Polaski factor methodically.

Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005); Brown v. Chater, 87 F.3d 963, 966 (8th Cir.

1996). The ALJ’s analysis will be accepted if the opinion reflects acknowledgment and

consideration of the factors before discounting the claimant’s subjective complaints. Lowe v.

Apfel, 226 F.3d 969, 972 (8th Cir. 2000); see also Brown, 87 F.3d at 966.

While the ALJ may not discount the Plaintiff’s subjective complaints solely because the

medical evidence fails to support them, he may disbelieve subjective reports that are inherently

inconsistent with other evidence. Id.; see also 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)).

Thus, when, as here, the ALJ considers the relevant factors and discredits the Plaintiff’s complaints

for good reason, the decision will be upheld. Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir. 2001).

Plaintiff insists that the ALJ’s reasons for discounting her complaints of pain and mental

limitation are not clear, beyond his finding that they were not objectively verifiable. To the

contrary, the ALJ properly considered the inconsistency between the Plaintiff’s statements and the

objective medical evidence. See 20 C.F.R. § 404.1529(c)(2) (ALJ may rely on objective evidence

as “useful indicator” in evaluating subjective complaints). He noted that her gait, station, strength,

and balance was consistently normal. While there are a few notations that the Plaintiff utilized a

cane or walking stick to ambulate, there is no evidence to indicate that an assistive device was

prescribed or required. (ECF No. 10, pp. 37-41, 504-510, 528-534). In fact, Dr. Keating indicated

the Plaintiff could walk independently. (Id. at 481-488).

Further, aside from muscular tenderness, physical exams failed to consistently record

limitations in any area(s). For instance, on a few occasions, Dr. Cole noted tenderness in the neck

muscles, hips, left shoulder, and mid-calf with a limited ROM in her left shoulder. (ECF No. 10,

pp. 430-434, 445-450, 453-458, 468-470, 646-652, 684-692, 734). A weakened grip was also

recorded a few times. (Id. at 586-587). However, most of her exams were within normal limits.

Regarding her tremor, even at its peak, Dr. Keating documented only a mild to moderate

exaggerated physiologic/postural tremor. (Id. at 481-488). Thereafter, Dr. Belinga found only a

fine tremor in her extremities with normal bulk, tone, strength, ROM, and sensation. (Id. at 626-

629, 633-638). And, by May 2020, he recorded only minimal shaking. (Id. at 639-641).

Further, in May 2021, Dr. Krishnamurthi’s indicated she could perform light work with

frequent reaching in all directions, handling, fingering, feeling, pushing/pulling, operation of a

motor vehicle, and work near humidity/wetness, dust, odors, fumes, irritants, extreme

temperatures, vibrations, and loud noises; occasional climbing, balancing, stooping, kneeling,

crouching, and crawling; and she could not climb ladders or scaffolds, or work near unprotected

heights or moving mechanical parts. (Id. at 770-779). See Patrick v. Barnhart, 323 F.3d 592, 596

(8th Cir. 2003) (holding if an impairment can be controlled by treatment or medication, it cannot

be considered disabling). While this does differ from Dr. Cole’s assessment, the ALJ properly

concluded that Dr. Cole’s assessment lacked support in the record.

In addition to the objective evidence, the ALJ also considered the conservative nature of

her treatment, her favorable response to the treatment modalities implemented, her reported daily

activities, and the assessments of both examining and non-examining sources. (ECF No. 10, p.

38). Pierce v. Kijakazi, 22 F.4th 769, 773 (8th Cir. 2022) (holding a pattern of conservative

treatment suggests an impairment is not disabling); Hensley, 829 F.3d at 933-34 (holding

impairment that can be controlled by treatment or medication cannot be disabling). The record

makes clear that the Plaintiff’s impairments were treated via conservative treatment modalities to

include medication and supplements. There are no records to indicate that any of her impairments

required hospitalization or surgical intervention during the relevant period.

The ALJ further noted reports that Primidone was effective in significantly reducing her

tremors. Hensley, 829 F.3d at 933-34 (holding impairment that can be controlled by treatment or

medication cannot be disabling). Records from Dr. Belinga documented minimal tremor in May

2020. (ECF No. 10, pp. 639-641). Dr. Morse also noted that her tremor was reasonably well

controlled with medication. (Id. at 552-554). Thereafter, no shaking was noted by any of the

Plaintiff’s treating physicians. The Plaintiff also testified that the combination of her prescribed

medications and medical marijuana helped alleviate her daily pain, which she rated as an average

of a 5 on a 10-point scale. (Id. at 59). Jones v. Chater, 86 F.3d 823, 826 (8th Cir. 1996) (holding

the mere fact that working may cause pain or discomfort does not mandate a finding of disability).

As for her mental impairments, the ALJ pointed out Plaintiff’s failure to seek out formal

mental health treatment during the relevant period, as well as the conservative nature of the

treatment received from her primary care physician. (Id. at 39). See Pierce, 22 F.4th at 773

(holding a pattern of conservative treatment suggests an impairment is not disabling); Kirby, 500

F.3d at 709 (holding that absence of formal treatment by a psychiatrist, psychologist, or other

mental health professional is a significant consideration when evaluating Plaintiff’s allegations of

mental disability). Although referred to psychiatry in July 2019, there is no indication she followed

through. See Kelley v. Barnhart, 372 F.3d 958, 961 (8th Cir. 2004) (holding failure to follow

prescribed medical treatment without good cause is a basis for denying benefits). There is also no

evidence that her mental impairments required hospitalization during the relevant period.

Additionally, these records make clear that she was able to communicate with her medical

practitioners in an efficient and effective way, without interference from her alleged mental

impairments.

At the Commissioner’s request, Dr. Hester evaluated the Plaintiff in June 2019 and opined

she could communicate and interact in a socially adequate manner, communicate in an intelligible

and effective manner, cope with the mental demands of basic work tasks, attend and sustain

concentration on basic tasks, sustain persistence in completing tasks, and manage funds without

assistance. (ECF No. 10, pp. 416-424). During the evaluation, she seemed more concerned with

her physical issues than her alleged mental impairments. This evidence supports the ALJ’s

conclusion that the Plaintiff was able to independently give and receive information and manage

healthcare relationships to obtain beneficial outcomes.

Additionally, the ALJ considered Plaintiff’s self-reported activities of daily living. In adult

function reports dated April and August 2019, she acknowledged the ability to care for her dogs,

her husband, her sister, and her personal hygiene, although she required some assistance dressing,

getting out of the bathtub, and styling her hair; prepare simple meals; perform some light household

chores; go outside twice per day; go out alone; shop in stores; watch television; spend time with

her husband daily; and spend time with friends twice per year. (ECF No. 10, pp. 232-239, 257-

264). She indicated that her husband handled the finances, described difficulty getting along with

others, and stated that she did not handle stress or changes in routine well. Further, the Plaintiff

used a cane, although it was not formally prescribed by a doctor. (Id. at 504-510, 528-534).

Kenneth Richardson, Plaintiff’s spouse, completed his own report describing physical

limitations much like those reported by the Plaintiff. (ECF No. 10, pp. 208-217). See Rautio v.

Bowen, 862 F.2d 176, 180 (8th Cir. 1988) (holding that corroborating testimony of an individual

living with a claimant may be discounted by the ALJ, as that person has a financial interest in the

outcome of the case). Contrary to her statements, however, he indicated that she got along well

with family, friends, neighbors, and authority figures; successfully used a debit card; and

conducted research on her phone and computer. Mr. Richardson also opined the Plaintiff could

lift 10 pounds, walk 100 yards, stand for 15 minutes, climb two flights of stairs, kneel for five

minutes, and reach for three minutes.

Moreover, we note that the Plaintiff advised Dr. Hester that she had no history of problems

getting along with others in the workplace. (ECF No. 10, pp. 416-424). Thus, overall, we find

that this evidence undermines Plaintiff’s subjective complaints and supports the ALJ’s RFC

finding that she could perform light work with postural, manipulative, and mental limitations. See

Julin v. Colvin, 826 F.3d 1082, 1086 (8th Cir. 2016) (medical evidence “failed to provide strong

support” for claimant’s allegations of incapacitating symptoms and limitations); see also Bryant

v. Colvin, 861 F.3d 779, 782-83 (8th Cir. 2017) (court defers to ALJ’s credibility determination if

it is supported by good reasons and substantial evidence).

D. RFC Determination

Lastly, the Plaintiff contends that the ALJ’s RFC assessment fails to account for her CFS

and essential tremors. Further, she asserts that the ALJ improperly rejected the treating source

statement of Dr. Michael Cole and failed to order a consultative examination of the Plaintiff rather

than sending interrogatories to a cardiologist in a non-cardiac case.

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

A disability claimant has the burden of establishing her RFC. Vossen, 612 F. 3d at 1016. “The

ALJ determines a claimant’s RFC based on all relevant evidence in the record, including medical

records, observations of treating physicians and others, and the claimant’s own descriptions of his

or her limitations.” Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010); Davidson v. Astrue, 578

F.3d 838, 844 (8th Cir. 2009). Limitations resulting from symptoms such as pain are also factored

into the assessment. 20 C.F.R. § 404.1545(a)(3). The United States Court of Appeals for the

Eighth Circuit has held that a “claimant’s residual functional capacity is a medical question.”

Harvey v. Colvin, 839 F.3d 714, 717 (8th Cir. 2016). Therefore, an ALJ’s determination

concerning a claimant’s RFC must be supported by some medical evidence that addresses the

claimant’s ability to function in the workplace. Perks v. Astrue, 687 F.3d 1086, 1092 (8th Cir.

2012).

As previously mentioned, the ALJ found Plaintiff’s fibromyalgia and major joint

dysfunction to be severe impairments. And we note that although fibromyalgia and CFS are

different diagnoses, they are characterized by similar symptoms to include diffuse pain and fatigue,

as well as sleep, memory, and mood disturbances. See Mayo Foundation for Medical Education

and Research (MFMER), Fibromyalgia, at https://www.mayoclinic.org/diseases-conditions/fibro

myalgia/symptoms-causes/syc-20354780 (last accessed October 25, 2023); see also MFMER,

Myalgic encephalomyelitis/chronic fatigue syndrome (ME/CFS), at https://www.mayoclinic.org/

diseases-conditions/chronic-fatigue-syndrome/symptoms-causes/syc-20360490 (last accessed

October 25, 2023). In assessing her CFS, the ALJ took notice of Dr. Cole’s July 2019 notation

that her CFS was severe enough to justify long-term disability as there was no expectation of

improvement. Unfortunately, Dr. Cole’s exam findings from the same day revealed only a limited

ROM in her left shoulder with normal ambulation, gait, balance, and coordination. (ECF No. 10,

pp. 430-434, 445-450, 646-652). Despite some anxiety and depression, she remained active, alert,

and fully oriented. These findings are consistent with the overall record showing the Plaintiff to

be alert and fully oriented with a normal gait, station, balance, and strength. (Id. at 362-366, 380-

385, 441-445, 453-458, 461-465, 468-470, 481-488, 521-527, 547-554, 575-581, 642-646, 708-

714, 743).

Further, for the reasons discussed in the previous sections, we also find that the ALJ

properly considered Plaintiff’s tremors but concluded that they would not significantly affect her

ability to perform work-related activities. As they were effectively treated via medication, there

was no need to include additional limitations in the RFC.

The ALJ ultimately found the state agency medical experts’ opinions and the opinion of

Dr. Krishnamurthi to be persuasive, agreeing that the Plaintiff could perform light work with

occasional postural limitations. In so doing, he correctly noted that these opinions were supported

by the experts’ review of the medical evidence. See 20 C.F.R. § 404.1520c(b)(2) (stating

supportability and consistency are the two most important factors in evaluating opinion evidence

and the assessments of Agency physicians). The ALJ also properly concluded that these opinions

were consistent with the overall medical record documenting Plaintiff’s seemingly benign physical

exams and favorable response to conservative treatment. See Hensley, 829 F.3d at 932 (RFC based

on all relevant evidence, including claimant’s own description of her limitations). After reviewing

this evidence, the undersigned finds that the record does not support a more restrictive RFC.

Similarly, the ALJ found Dr. Hester’s opinion to be persuasive, but found the opinions of

the state agency physicians, who concluded the Plaintiff had no severe mental impairment, to be

unpersuasive. The record clearly reflects that the Plaintiff suffered from depression and anxiety

that was severe enough to warrant medication. It does not, however, document symptoms of such

severity that they would preclude her from performing all work-related activities. As such, we

find that the ALJ’s limitation to unskilled work was sufficient to account for her mental

restrictions.

V. 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 (ECF No. 2) 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 6th day of November 2023.

/s/ Mark E. Ford

HON. MARK E. FORD

CHIEF UNITED STATES MAGISTRATE JUDGE