United States District Court, W.D. Missouri, Southwestern Division
ROSEANN A. KETCHMARK, JUDGE
the Court is Plaintiff's appeal brought under 42 U.S.C.
§ 405(g) seeking review of Defendant Commissioner of
Social Security Administration's (“SSA”)
denial of disability benefits as rendered in a decision by an
Administrative Law Judge (“ALJ”). For the reasons
below, the decision of the ALJ is REVERSED
and REMANDED for further proceedings
consistent with this Order.
Court's review of the ALJ's decision to deny
disability benefits is limited to determining if the decision
“complies with the relevant legal requirements and is
supported by substantial evidence in the record as a
whole.” Halverson v. Astrue, 600 F.3d 922, 929
(8th Cir. 2010) (quoting Ford v. Astrue, 518 F.3d
979, 981 (8th Cir. 2008)). “Substantial evidence is
less than a preponderance of the evidence, but is ‘such
relevant evidence as a reasonable mind would find adequate to
support the [ALJ's] conclusion.'” Grable v.
Colvin, 770 F.3d 1196, 1201 (8th Cir. 2014) (quoting
Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001)).
In determining whether existing evidence is substantial, the
Court takes into account “evidence that detracts from
the [ALJ's] decision as well as evidence that supports
it.” Cline v. Colvin, 771 F.3d 1098, 1102 (8th
Cir. 2014) (citation omitted). “If the ALJ's
decision is supported by substantial evidence, [the Court]
may not reverse even if substantial evidence would support
the opposite outcome or [the Court] would have decided
differently.” Smith v. Colvin, 756 F.3d 621,
625 (8th Cir. 2014) (citing Davis v. Apfel, 239 F.3d
962, 966 (8th Cir. 2001)). The Court does not “re-weigh
the evidence presented to the ALJ.” Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (citing
Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir.
2003)). The Court must “defer heavily to the findings
and conclusions of the [ALJ].” Hurd v. Astrue,
621 F.3d 734, 738 (8th Cir. 2010) (citation omitted).
of overview, the ALJ found the Plaintiff had a history of
lumbar spinal cord injury status-post repair with
degenerative disc disease; history of left arm/shoulder
injury with residuals; and peripheral neuropathy (20 C.F.R.
404.1520(c)). The ALJ also determined that Plaintiff has the
following non-severe impairments: gastroesophageal reflux
disease, erectile dysfunction, obesity, hypertension, chronic
obstructive pulmonary disease, tobacco abuse, anxiety, and
depression. However, the ALJ found that none of
Plaintiff's impairments, whether considered alone or in
combination, meet or medically equals the criteria of one of
the listed impairments in 20 CFR Pt. 404, Subpt. P, App. 1
the ALJ found that despite his limitations, Plaintiff
retained the residual functional capacity (“RFC”)
to perform light work as defined in 20 C.F.R. 404.1567(b),
with the following specific limitations: lift and carry 10
pounds frequently and 20 pounds occasionally; stand and walk
for 4 hours per 8-hour workday and sit for 4 hours per 8-hour
workday; standing and walking at any one time is limited to
60 minutes; sitting is limited to 120 minutes, and while
seated, requires an ability to shift at will, but can stay on
task while shifting, and while seated, needs the ability to
elevate one leg, but not more than 9 inches, on a foot stool
or similar item; no pushing or pulling with the bilateral
upper or lower extremities, and no foot control operation
bilaterally; no climbing of ropes, ladders or scaffolds;
climbing ramps or stairs is limited to 15% of the workday;
stooping, squatting and crouching are limited to 15% of the
workday; no kneeling or crawling; reaching bilaterally is
limited to frequent, reaching above the shoulder level is
limited to occasional bilaterally, and reaching above the
head bilaterally is limited to 15% of the workday; no
exposure to extreme cold; cannot use air or vibrating tools;
no exposure to hazardous conditions or moving machinery; and
no exposure to unprotected heights. Although the ALJ found
that Plaintiff is unable to perform any past relevant work,
the ALJ found that considering Plaintiff's age,
education, work experience, and RFC, Plaintiff can perform
jobs that exist in significant numbers in the national
appeal, Plaintiff makes three arguments as to why the case
should be remanded. First, Plaintiff argues the RFC was not
supported by substantial evidence because the ALJ gave great
weight to Dr. Mel Moore's opinion, but did not include
all of the limitations contained in Dr. Moore's opinion.
Second, Plaintiff contends the ALJ erred by failing to weigh
the medical opinions of treating and examining sources issued
prior to the alleged onset date. Finally, Plaintiff argues
the ALJ failed to properly consider Plaintiff's
subjective reports. All of Plaintiff's arguments will be
discussed in turn.
The ALJ Failed to Provide Explanation for Discounting
Portions of Dr. Moore's Opinion
Plaintiff's first argument centers around the ALJ's
evaluation of Dr. Mel Moore's opinion, the state agency
medical consultant, and the incorporation of that opinion
into the RFC. At issue is the opinion of Dr. Moore that
Plaintiff was “limited to work that did not demand use
of his left upper extremity.” (Tr. 70, 156.) The RFC,
while it did include other limitations (lifting, carrying,
pushing, pulling, climbing, and reaching), failed to include
this specific limitation from Dr. Moore. (Tr. 67.) Further,
the RFC did not include a limitation greater than that opined
by Dr. Moore as to the use of Plaintiff's upper left
extremity. (See Tr. 67.) Plaintiff argues “the ALJ
failed to include the limitations of work that did not demand
use of his left upper extremity and handling with the left
upper extremity in the RFC assessment or explain why the
limitations were omitted.” (Doc. 7, p. 12.) “If
the RFC assessment conflicts with an opinion from a medical
source, the adjudicator must explain why the opinion was not
adopted.” SSR 96-8P, 1996 WL 374184 at *7 (S.S.A. July
2, 1996); See also Trotter v. Colvin, No.
3:15-CV-05013-NKL, 2015 WL 5785548, at *4 (W.D. Mo. Oct. 2,
2015) (finding error where ALJ did not explain why Plaintiff
would not be subject to the limitations put forth in the
medical opinion); White v. Astrue, No.
10-5064-CV-SW-JCE, 2012 WL 930840, at *7 (WD. Mo. Mar. 19,
2012) (finding error where the ALJ gave some weight to
doctor's opinion, but did not include the doctor's
opinion about the claimant's functional restrictions into
the RFC finding). Here, the ALJ indicated he gave Dr.
Moore's opinion significant weight and that he provided
Plaintiff with additional limitations in the RFC. (Tr. 70.)
However, the ALJ failed to give specific explanations
regarding his disregard of Dr. Moore's opinion that
Plaintiff was limited to work that did not demand the use of
his left upper extremity. This was error. Trotter,
2015 WL 5785548 at *4; White, 2012 WL 930840, at *4.
question then becomes whether such error was harmless. This
Court cannot say that such error was harmless. See Wilson
v. Comm'r of Soc. Sec., 378 F.3d 541, 544-46 (6th
Cir. 2004) (rejecting the failure to give good reasons under
the treating physician rule when discussing former 20 C.F.R.
§ 1527(d)(2), now § 404.1527(c)(2)) (“To hold
otherwise, and to recognize substantial evidence as a defense
to non-compliance [of the reason-giving requirement], would
afford the [ALJ] the ability [to] violate the regulation with
impunity and render the protections promised therein
illusory.”) Thus, even if there was substantial
evidence to support the ALJ's decision, his failure to
provide an explanation for disregarding portions of Dr.
Moore's opinion requires remand. Further, while the
hypothetical question posed to the vocational expert may not
have differed, the question posed did not consider a
completely restricted use of Plaintiff's left upper
extremity. This too requires remand. See Holstrom v.
Massanari, 270 F.3d 715, 722 (8th Cir. 2001) (fining
that a hypothetical question posed to a vocational expert
cannot constitute substantial evidence when the evidence is
based on an improper RFC). Therefore, the Court will remand
the case for the ALJ to clarify his findings regarding the
weight given to the opinion of Dr. Moore regarding use of
Plaintiff's left upper extremity.
The ALJ did not Err by not Weighing Medical Opinions Issued
Prior to the Alleged Onset Date
Plaintiff argues the ALJ erred by failing to weigh the
medical opinions that were issued before the alleged onset
date. Specifically, Plaintiff argues the ALJ never evaluated
the opinions of Susan Korkowski, OT, Dr. Dekutoski, Dr.
Johnson, Dr. Pelaez, and Dr. Gelfman. However, the ALJ was
not required to evaluate these opinions because they were
issued prior to the alleged onset date. Adams v.
Berryhill, No. 4:16-CV-2155-SPM, 2018 WL 4404722, at *7
(E.D. Mo. Sept. 17, 2018) (quoting Baker v.
Berryhill, 720 Fed.Appx. 352, 355 (9th Cir. 2017)
(“no reversible error in ALJ's failure to discuss
opinion evidence dated prior to alleged onset date, because
‘medical opinions predating the alleged onset date are
of limited relevance'”) (citation omitted));
Simmons v. Comm'r, Soc. Sec., No. CV
RDB-17-1837, 2018 WL 3416943, at *2 (D. Md. July 13, 2018)
(“[t]he ALJ in the instant case was not required to
discuss Dr. Sherlekar's medical opinion, which predated
Ms. Simmons's alleged onset date by nearly one
year.”) Plaintiff cites to 20 C.F.R. §§
404.152(c), 416.927(c) and Pirtle v. Astrue, 479
F.3d 931, 934 (8th Cir. 2007) to support his position that
the ALJ was required to evaluate the other medical opinions.
However, the relevant time period for consideration of a
Plaintiff's disability claim is between the alleged
disability onset date and the date of the ALJ decision.
Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir.
2002); Van Vickle v. Astrue, 539 F.3d 825, 830 (8th
Cir. 2008) (the Court will not rely on medical evidence
predating the alleged disability onset date). Additionally,
Pirtle held that a court may consider
medical opinions issued prior to the alleged onset date, not
that a court was required to consider such evidence.
Pirtle, 479 F.3d at 934 (emphasis added). Thus, the
ALJ was not required to evaluate such opinions and the
failure to do so was not error.
even assuming that the failure to evaluate those opinions was
error, such error was harmless. The opinions cited by
Plaintiff are not inconsistent with the ALJ's RFC
determination. Dr. Dekutoski indicated in March 2007, that
Plaintiff could do light work with a maximum lifting capacity
of 30 pounds (Tr. 625-26.) Dr. Dekutoski further indicated
that Plaintiff was “to return to full time work status,
eight-hour shifts with his current maximum 50-pound lifting
restriction” in April 2007. (Tr. 624.) Dr. Johnson
indicated Plaintiff could work 8-hour days, five days a week
with frequent walking and standing, and a maximum lifting
limit of 50 pounds occasionally and 1-20 pounds frequently in
July of 2007. (Tr. 918.) In August 2007, Dr. Johnson
indicated Plaintiff could lift 21-50 pounds occasionally and
up to 20 pounds frequently, with a maximum of 40 hours per
week. (Tr. 904-05.) Dr. Palaez opined in September 2007 that
Plaintiff should work 6 hours every day with restrictions to
lift 20 pounds only 30% of the time. (Tr. 892.) Ms.
Korkowski's assessment put Plaintiff's lifting and
carrying abilities within the range of medium exertional
level work. (Tr. 651.) Despite Plaintiff's contention to
the contrary, Ms. Korkowski's opinion that Plaintiff
could reach occasionally and stand occasionally is not
necessarily inconsistent with the ALJ's determination,
which stated stand and walk for 4 hours per 8-hour workday,
no pushing or pulling with the bilateral upper extremities,
limited reaching above the shoulder to occasionally, and
reaching above the head bilaterally to 15% of the workday.
(Tr. 67.) Finally, Dr. Gelfman's 2009 statement that
Plaintiff would be better off if he had a job that did not
require long periods of time on his feet or lifting heavy
weights repetitively is not inconsistent with the ALJ's
determination. (Tr. 609.) Plaintiff was limited to a reduced