Brown v. Kijakazi

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

RASHONDA LEICOLE BROWN, )

)

Plaintiff, )

)

vs. ) Case No. 4:23-cv-01294-AGF

)

LEE DUDEK,1 )

Acting Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM AND ORDER

This action is before the Court for judicial review of the final decision of the

Commissioner of Social Security finding that Plaintiff Rashonda Leicole Brown was not

disabled, and thus not entitled to supplemental security income (“SSI”) under Title XVI

of the Act, 42 U.S.C. §§ 1381-1383f. For the reasons set forth below, the decision of the

Commissioner will be affirmed.

BACKGROUND

The Court adopts the statement of facts set forth in Plaintiff’s Statement of

Uncontroverted Material Facts (ECF No. 12-1), and in Defendant’s Statement of

Additional Material Facts (ECF No. 15-1), both of which have been admitted by the

1 Lee Dudek became the Acting Commissioner of Social Security in February of

2025. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Lee Dudek

should be substituted for Kilolo Kijakazi as the defendant in this suit. No further action

need be taken to continue this suit by reason of the last sentence of section 205(g) of the

Social Security Act, 42 U.S.C. § 405(g).

opposing party (ECF Nos. 15-1 & 16). Together, these statements provide a fair

description of the record before the Court. Specific facts will be discussed as needed to

address the parties’ arguments.

Plaintiff, who was born on September 30, 1972, protectively applied for benefits

on August 27, 2020. She alleged disability beginning May 8, 2019, at age 46, due to

high blood pressure, carpal tunnel syndrome, nerve damage in the right hand,

hand/wrist/arm problems, chronic obstructive pulmonary disease (“COPD”), insomnia,

bipolar disorder, manic depression, and posttraumatic stress disorder (“PTSD”). Tr. 91,

239, 246. Plaintiff’s application was denied at the administrative level and on

reconsideration, and she thereafter requested a hearing before an Administrative Law

Judge (“ALJ”).

A telephonic hearing was held on August 17, 2022. Plaintiff, who was

represented by counsel, and a vocational expert (“VE”) testified at the hearing. By

decision dated January 4, 2023, the ALJ found that Plaintiff had the severe impairments

of lupus, polyneuropathy, degenerative changes to the cervical and lumbar spine,

metatarsalgia, major depressive disorder, generalized anxiety disorder, bipolar disorder,

and PTSD.

The ALJ concluded that none of Plaintiff’s impairments or combinations of

impairments met or medically equaled one of the deemed-disabling impairments listed in

the Commissioner’s regulations. The ALJ noted that the medical evidence of record did

“not document signs, symptoms, and/or laboratory findings indicating any impairment or

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combination of impairments severe enough to meet the criteria of any listed impairment,”

and that “[n]o source designated by the Commissioner to establish equivalency has

mentioned findings or rendered an opinion that [Plaintiff’s] impairments, singly or in

combination, medically equaled the criteria of any listed impairment.” Tr. 31.

In making this finding, the ALJ specifically considered, as relevant here, Listing

11.14 (peripheral neuropathy). Id. The ALJ noted that this listing required, and the

record here lacked, evidence of either disorganization of motor function in two

extremities, resulting in an extreme limitation in the ability to stand up from a seated

position, balance while standing or walking, or use the upper extremities; or marked

limitation in physical functioning, and in one of the following: (1) understanding,

remembering, or applying information; (2) interacting with others; (3) concentrating,

persisting, or maintaining pace; or (4) adapting or managing oneself. Id.

Next, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to

perform light work, as defined in the Commissioner’s regulations, with the following

exceptions:

[She] can occasionally climb ramps and stairs, never climb ladders, ropes

and scaffolds, and frequently balance, stoop, kneel, crouch and crawl. She

must avoid concentrated exposure to hazards such as moving machinery and

unprotected heights. [She] can perform only simple, routine and repetitive

tasks, requiring only simple work-related decisions, with few changes in the

routine work setting and no more than occasional interaction with

supervisors and co-workers and rare contact with the general public.

Tr. 33.

In making these findings, the ALJ considered the opinion evidence of various

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medical professionals and providers. Specifically, the ALJ considered the opinion

provided by Plaintiff’s treating neurologist, Paul Santiago, M.D., who completed a

physical assessment in October of 2022. Dr. Santiago indicated by checkbox and fill-in-

the-blank form, that Plaintiff was diagnosed with cervical spondylosis with myelopathy

causing dizziness and drowsiness, that her condition would “constantly” interfere with

the attention and concentration required to perform simple work-related tasks, that she

could walk approximately two city blacks without significant pain but could not walk or

stand more than two hours or sit more than six hours in an eight-hour work day, that she

would need 15-minute breaks in work every hour and would miss work more than four

times per month, that she could only occasionally lift up to 10 pounds and never more

than 20 pounds, and that she was 50% limited in handling and fingering and could never

reach with either arm. Tr. 609-10.

The ALJ found that Dr. Santiago’s opinion was not persuasive because it provided

little supportive explanation and was inconsistent with other evidence in the record,

including treatment records indicating good to normal strength and sensation of the

bilateral upper and lower extremities throughout the relevant time period and through the

weeks following Plaintiff’s October 2022 back surgery. Tr. 36.

The ALJ also considered the opinion evidence from agency consultative

psychologist, Stephanie Bono, Ph.D., who examined Plaintiff in March of 2021. During

her examination, Dr. Bono noted that Plaintiff ambulated slowly without apparent gait

disturbance; did not display any unusual behaviors; sat still in her chair throughout the

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evaluation; made appropriate eye contact; was polite and cooperative with appropriate

social skills; had normal speech despite slightly slurring her words; presented with no

deficits in receptive or expressive language; was not in acute emotional distress; was

fully oriented; and displayed thought processes that were logical, linear, and goal

directed. Tr. 450-51. However, Dr. Bono noted that Plaintiff “did appear tired,

particularly at the end of the evaluation, when she had trouble keeping her eyes open.”

Tr. 450.

Based on her examination and review of the medical records, Dr. Bono opined that

Plaintiff had moderate limitations in most areas of mental work-related functioning, but a

marked limitation in concentration, persistence, and pace. Tr. 448-54. In support of her

opinion that Plaintiff had a marked limitation in concentration, persistence, and pace, Dr.

Bono stated that Plaintiff “reported it is sometimes difficult for her to concentrate on or

complete tasks,” and that Plaintiff “seemed very fatigued by the end of the evaluation and

had difficulty keeping her eyes open.” Tr. 451.

The ALJ found Dr. Bono’s opinion only partially persuasive. Tr. 36. The ALJ

noted that Dr. Bono’s opinion was supported by explanation and that her findings of

moderate limitations were generally consistent with other evidence of record. However,

the ALJ found that Dr. Bono’s opinion that Plaintiff was markedly limited in

concentration, persistence, and pace was inconsistent with the record. The ALJ reasoned

that Dr. Bono did not define the terms “moderate” and “marked” within her opinion; and

that Dr. Bono’s basis for the marked opinion was that Plaintiff appeared drowsy and tired

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at the time of the examination but that Dr. Bono did not indicate whether the drowsiness

was caused by Plaintiff’s mental impairments or other reasons, such as lack of sleep.

Finally, the ALJ noted that, in the absence of corroborating evidence, this one-time

examination was insufficient to show that Plaintiff’s concentration was markedly

impaired where consideration of the record as a whole failed to support such a finding.

Tr. 36. In making such statement, the ALJ cited to portions of the record indicating

generally normal mental status examination findings. Id.

Next, the ALJ found that Plaintiff’s capacity for performing past relevant work

was not material because there was insufficient information about her past work and

because all potentially applicable Medical-Vocational Guidelines as defined in the

Commissioner’s regulations would direct a finding of “not disabled” given the Plaintiff’s

age, education, and RFC.

However, the ALJ found that Plaintiff could perform certain unskilled light jobs

listed in the Dictionary of Occupational Titles (“DOT”) (cleaner, hand packer, and

production worker), which the VE testified that a hypothetical person with Plaintiff’s

RFC and vocational factors (age, education, work experience) could perform and that

were available in significant numbers in the national economy. Accordingly, the ALJ

found that Plaintiff was not disabled under the Social Security Act.

Plaintiff thereafter filed a timely request for review by the Appeals Council, which

was denied on August 24, 2023. Plaintiff has thus exhausted all administrative

remedies, and the ALJ’s decision stands as the final agency action now under review.

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In her brief before this Court, Plaintiff argues that the ALJ erred by failing to (1)

adequately evaluate the opinion of agency consultative psychologist Dr. Bono,

particularly Dr. Bono’s opinion that Plaintiff was markedly impaired in concentration,

persistence, and pace; (2) adequately evaluate the opinion of treating neurosurgeon Dr.

Santiago; and (3) properly develop the record when relying on state agency consultant

findings that no listing was met or medically equaled, when those consultants did not

have later-acquired evidence, such as records related to Plaintiff’s back surgery, Dr.

Santiago’s opinion regarding Plaintiff’s physical impairments, and Dr. Bono’s opinion

regarding Plaintiff’s mental impairments. Plaintiff asks that the ALJ’s decision be

reversed and that benefits be awarded or the case be remanded for further proceedings.

DISCUSSION

Standard of Review and Statutory Framework

In reviewing the denial of Social Security disability benefits, a court must review

the entire administrative record to determine whether the ALJ’s findings are supported by

substantial evidence on the record as a whole. Johnson v. Astrue, 628 F.3d 991, 992 (8th

Cir. 2011). “[T]he threshold for such evidentiary sufficiency is not high. Substantial

evidence . . . is more than a mere scintilla.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154

(2019). “It means—and means only—such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Id. (citation omitted).

A reviewing court “must consider evidence that both supports and detracts from

the ALJ’s decision. If, after review, [the court finds] it possible to draw two inconsistent

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positions from the evidence and one of those positions represents the Commissioner’s

findings, [the court] must affirm the decision of the Commissioner.” Chaney v. Colvin,

812 F.3d 672, 676 (8th Cir. 2016) (citations omitted). Put another way, a court should

“disturb the ALJ’s decision only if it falls outside the available zone of choice.” Papesh

v. Colvin, 786 F.3d 1126, 1131 (8th Cir. 2015) (citation omitted). A decision does not

fall outside that zone simply because the reviewing court might have reached a different

conclusion had it been the finder of fact in the first instance. Id.

To be entitled to benefits, a claimant must demonstrate an inability to engage in

substantial gainful activity which exists in the national economy, by reason of a

medically determinable impairment which has lasted or can be expected to last for not

less than 12 months. 42 U.S.C. § 423(d)(1)(A). The Commissioner has promulgated

regulations, found at 20 C.F.R. § 416.920, establishing a five-step sequential evaluation

process to determine disability. The Commissioner begins by deciding whether the

claimant is engaged in substantial gainful activity. If not, the Commissioner decides

whether the claimant has a “severe” impairment or combination of impairments. A

severe impairment is one which significantly limits a person’s physical or mental ability

to do basic work activities. 20 C.F.R. § 416.920(c). A special technique is used to

determine the severity of mental disorders. This technique calls for rating the claimant’s

degree of limitations in four areas of functioning: understanding, remembering, or

applying information; interacting with others; concentrating, persisting, or maintaining

pace; and adapting or managing oneself. 20 C.F.R. § 416.920a(c)(3).

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If the impairment or combination of impairments is severe and meets the duration

requirement, the Commissioner determines at step three whether the claimant’s

impairment meets or is medically equal to one of the deemed-disabling impairments

listed in the Commissioner’s regulations. If not, the Commissioner asks at step four

whether the claimant has the RFC to perform his past relevant work. If the claimant

cannot perform his past relevant work, the burden of proof shifts at step five to the

Commissioner to demonstrate that the claimant retains the RFC to perform work that is

available in the national economy and that is consistent with the claimant’s vocational

factors – age, education, and work experience. See, e.g., Halverson v. Astrue, 600 F.3d

922, 929 (8th Cir. 2010). But even though the burden of production shifts to

the Commissioner at step five, the burden of persuasion to prove disability remains on the

claimant. Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016).

Evaluation of Medical Opinion Evidence

“When assessing the claimant’s [RFC], the ALJ must weigh the various medical

opinions in the record and resolve any conflicts among them.” Bradford v. O'Malley,

104 F.4th 1055, 1059 (8th Cir. 2024) (citation omitted). Under the recently revised

regulations, “treating physicians are no longer entitled to special deference.” Austin v.

Kijakazi, 52 F.4th 723, 728 (8th Cir. 2022) (citation omitted). Rather, the ALJ must

“evaluate the persuasiveness of medical opinions by considering (1) whether they are

supported by objective medical evidence, (2) whether they are consistent with other

medical sources, (3) the relationship that the source has with the claimant, (4) the

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source’s specialization, and (5) any other relevant factors.” Bowers v. Kijakazi, 40 F.4th

872, 875 (8th Cir. 2022) (citing 20 C.F.R. § 404.1520c(c)). “[T]he first two factors—

supportability and consistency—are the most important.” Austin, 52 F.4th at 728

(citations omitted).

Here, the ALJ performed an independent review of the medical record as required,

including the objective medical evidence of prior medical procedures, physical

examinations, treatment, consultative examinations, and diagnoses, along with Plaintiff’s

subjective complaints of disabling symptoms and limitations. The ALJ then properly

evaluated the persuasiveness of each medical opinion by considering the above-noted

factors.

The ALJ did not give controlling weight to any single medical opinion but instead

considered the views of the examining and non-examining agency physicians, which

taken together, supported the RFC assessment. The ALJ reasonably concluded that Dr.

Santiago’s findings of more extreme physical limitations in his one-and-a-half page form,

such as his fill-in-the-blank finding that Plaintiff could never reach and only occasionally

finger or handle, was not supported by any explanation and was inconsistent with the

medical records consistently indicating good to normal strength and sensation of the

upper and lower extremities, including, as the ALJ noted, within the weeks after

Plaintiff’s October 2022 back surgery. Tr. 340, 367, 399, 471, 480, 488, 493, 504, 568,

574, 597, 604, 2737-39.

Dr. Santiago did not explain his more severe physical limitations or cite to any

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medical evidence support of them. Rather, his opinion consisted primarily of

conclusions and checkmarks without further explanation. As the Eighth Circuit has

held, a medical checkbox opinion like Dr. Santiago’s is “entitled to relatively little

evidentiary value on its face” when it is conclusory and “‘cite[s] no medical evidence,

and provide[s] little to no elaboration.’” Swarthout v. Kijakazi, 35 F.4th 608, 611 (8th

Cir. 2022) (citing Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) and Thomas v.

Berryhill, 881 F.3d 672, 675 (8th Cir. 2018)). It was not error for the ALJ to rely more

heavily on other medical opinions and evidence in the record that collectively supported

the RFC assessment.

The ALJ likewise properly discounted—though only partially—Dr. Bono’s

opinion following her consultative mental examination of Plaintiff. Notably, the ALJ

did not wholly discredit Dr. Bono’s opinion but, rather, found persuasive Dr. Bono’s

assessment of Plaintiff’s generally moderate mental limitations. But the ALJ reasonably

discredited Dr. Bono’s single finding of a marked impairment in concentration,

persistence, and pace. The only support Dr. Bono offered for this finding was Plaintiff’s

subjective reports regarding her difficulty completing tasks and Plaintiff’s fatigue at the

end of the evaluation. But Dr. Bono did not state or indicate that Plaintiff’s fatigue was

due to her mental impairments, as opposed to other reasons such as the ALJ’s example of

a simple lack of sleep. Indeed, Dr. Bono noted during her own examination that

Plaintiff’s thought content was normal and her thought processes were logical, linear, and

goal-directed. Tr. 451. Further, in her own function report, Plaintiff stated that

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although she could only “somewhat” follow written and spoken instructions, she could

finish what she started, and she did not indicate any difficulty completing tasks or with

concentrating. Tr. 267. The ALJ thus reasonably found that Plaintiff’s symptoms did

not cause more than a moderate limitation in concentration, persistence, and pace.

Again, the ALJ did not wholly discount the mental and physical limitations set

forth in the medical opinion evidence. Rather, the ALJ carefully compared those

limitations to the record as a whole and incorporated into Plaintiff’s RFC those

limitations that were consistent with the record. This is all the ALJ was required to do,

and the Court cannot say that the ALJ’s conclusion was outside the zone of choice.

Step Three Finding Regarding Listing 11.14

The ALJ was responsible for deciding the ultimate legal question of whether a

listing was met or medically equaled. Jones ex rel. Morris v. Barnhart, 315 F.3d 974,

978–79 (8th Cir. 2003) (citation omitted). In determining whether an impairment

medically equals a listing, the ALJ will “consider all evidence in [the claimant’s] case

record about [her] impairment(s) and its effects on [her] that is relevant to this finding,”

and will “consider the opinion given by one or more medical or psychological consultants

designated by the Commissioner.” 20 C.F.R. § 416.926(c).

The ALJ satisfied these requirements by relying on the record as a whole,

including the opinions of state agency consultants, to find that Plaintiff’s impairments did

not meet or medically equal any listing. Tr. 31. In challenging this finding, Plaintiff

“bears the burden at step three of showing that [her] impairments meet or equal an

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impairment described in the listings.” Cronin v. Saul, 945 F.3d 1062, 1066–67 (8th Cir.

2019) (citation omitted). “To establish equivalency, a claimant must present medical

findings equal in severity to all the criteria for the one, most similar, listed impairment.”

Id. at 1067.

Plaintiff acknowledges that state agency physicians found that she did not meet or

medically equal any listing, but she argues that the ALJ should have further developed

the record on this issue because the agency physicians did not have the opportunity to

review evidence of her back surgery or the opinions of Dr. Bono (who found Plaintiff had

a marked impairment in concentration, persistence, and pace) and Dr. Santiago (who

found that Plaintiff had severe physical impairments). Plaintiff argues that these

additional pieces of evidence demonstrate that Listing 11.14 for peripheral neuropathy

was met because they demonstrate that Plaintiff had a marked limitation in physical

functioning and a marked limitation in one of the applicable areas of mental

functioning—namely, the area of concentration, persistence, or pace.

However, an ALJ is not required to obtain a new medical evaluation where, as

here, an agency physician has already addressed the issue of equivalency. Jones ex rel.

Morris v. Barnhart, 315 F.3d 974, 978–79 (8th Cir. 2003) (citing Social Security Ruling

96–6p [2002 Supplementary Pamphlet] Soc. Security Reporting Service: Rulings (West)

at 131). Rather, an ALJ must obtain an updated medical opinion from a medical expert

only when either: (1) no additional medical evidence is received, but the ALJ finds that

the record suggests a judgment of equivalence may be reasonable; or (2) additional

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medical evidence is received that the ALJ believes may change the state agency

consultant's opinion that a claimant’s impairments are not equivalent to an impairment in

the listings. SSR 96–6P, 1996 WL 374180 at *3-4.

Plaintiff appears to invoke the second exception. But there was no reason for the

ALJ to obtain updated medical evidence under this exception because the additional

evidence that Plaintiff highlights would not have changed the ALJ’s opinion regarding

whether the Listing 11.14’s criteria were satisfied. Specifically, the only additional

evidence pointed to by Plaintiff is her October 2022 back surgery and treatment

thereafter, Dr. Santiago’s finding of severe physical limitations, and Dr. Bono’s finding

of a marked impairment in concentration, persistence, and pace. But the ALJ explicitly

considered both sets of opinion evidence and found that Dr. Santiago’s findings of severe

physical limitations and Dr. Bono’s finding of marked impairment in concentration,

persistence, and pace were not persuasive. And as noted above, substantial evidence

supports the ALJ’s conclusions in this regard.

Further, the ALJ explicitly considered the records of Plaintiff’s October 2022 back

surgery and treatment thereafter, and found that, if anything, these records indicated

generally normal strength and sensation of the upper and lower extremities, as opposed to

marked physical limitations. In short, nothing in the record indicates that the ALJ

should have believed that medical evidence post-dating the state agency opinions would

have changed the state agency’s initial opinions. Thus, it was unnecessary for the ALJ

to obtain an updated medical opinion for a medical expert, and the ALJ’s determination

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that Plaintiff's condition did not meet or equal a listed impairment was supported by

substantial evidence. Cf. Karlix v. Barnhart, 457 F.3d 742, 746—47 (8th Cir. 2006)

(holding that an ALJ’s failure to elaborate on his conclusion that the record did not

demonstrate a plaintiff meet or equaled any listed impairment was not erroneous where

the record supported that conclusion).

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that the decision of the Commissioner is

AFFIRMED. A separate Judgment shall accompany this Memorandum and Order.

stoner bss Ch —

UNITED STATES DISTRICT JUDGE

Dated on this 20th day of February, 2025.

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