Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JENNIFER ANN SISLER,
Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.
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Case No. 4:24-cv-00778-RK
ORDER
Before the Court is Plaintiff Jennifer Ann Sisler’s appeal brought under 42 U.S.C. § 405(g)
seeking review of the Commissioner of the Social Security Administration’s denial of disability
benefits as rendered in a decision by an Administrative Law Judge (“ALJ”). 	After careful
consideration and for the reasons explained below, the Court ORDERS that the ALJ’s decision is
REVERSED and REMANDED for a supplemental administrative hearing followed by a new
written decision.
Background
Plaintiff filed a protective application under Title XVI of the Social Security Act for
supplemental security income alleging disability beginning on June 21, 2022. (Tr. at 13.) After
Plaintiff’s application was denied at both the initial and reconsideration levels, Plaintiff requested
a hearing before an ALJ. 	Following a hearing, (Tr. at 31-72), the ALJ issued an unfavorable
decision, (Tr. at 13-30). The Appeals Council denied Plaintiff’s subsequent request for review, (Tr.
at 1-5), making the ALJ’s decision the final decision of the Commissioner. Plaintiff accordingly
seeks judicial review of the ALJ’s unfavorable decision denying her application for supplemental
security income under the Social Security Act.
Discussion
The Court’s review of the ALJ’s decision denying Plaintiff’s application for supplemental
security income benefits is limited to whether 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)). Put another way, “we will affirm if the ALJ made no legal error and the ALJ’s decision is
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supported by substantial evidence on the record as a whole.” Cropper v. Dudek, 136 F.4th 809,
813 (8th Cir. 2025) (internal quotation marks omitted).
An ALJ’s “failure to comply with [Social Security Act] regulations . . . is [reversible] legal
error.” Lucus v. Saul, 960 F.3d 1066, 1069 (8th Cir. 2020). “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)). To determine 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)
(internal quotation marks 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, 239 F.3d at 966). On judicial review of the ALJ’s decision, 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)), and must “defer heavily to the
findings and conclusions of the [ALJ],” Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010).
I. 	The Five Step Sequential Analysis for Disability Benefits
To determine whether a claimant is entitled to SSI benefits under the Social Security Act,
the ALJ utilizes a familiar five-step analysis found at 20 C.F.R. § 416.920(a)(4), as follows:
At Step One the ALJ considers whether the claimant is engaged in substantial gainful work
activity. 	If not, the ALJ moves to Steps Two and Three to consider whether the claimant has a
severe medically determinable physical or mental impairment, or a combination thereof (Step
Two), and whether any such impairments meet or are medically equivalent to a Listed Impairment
(Step Three). If the ALJ finds that a claimant’s impairments, individually or in combination, meet
or medically equal a Listed Impairment, the claimant is entitled to disability benefits. Otherwise,
the ALJ moves to Step Four of the analysis to assess and consider the claimant’s residual functional
capacity (“RFC”)1 and to determine whether the claimant can still do any past relevant work
1 A claimant’s RFC “is the most [the claimant] can do” despite any “physical and mental limitations
that affect what [the claimant] can do in a work setting” caused by an claimant’s impairment(s) and related
symptoms. 	20 C.F.R. § 416.945(a)(1). The ALJ’s RFC assessment must be based on “all the relevant
evidence, including medical records, observations of treating physicians and others, and [the] claimant’s
own description of her limitations.” Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010) (internal quotation
marks omitted). Although it is a medical question and must be based on some medical evidence, “it is
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considering the claimant’s RFC as assessed by the ALJ. In doing so, the ALJ is required to consider
the persuasiveness of medical opinions and prior administrative medical findings. See 20 C.F.R.
§ 419.920c. 	If the ALJ finds that the claimant can perform past relevant work given the ALJ’s
RFC determination, the claimant is not entitled to benefits. However, if the claimant is unable to
perform past relevant work given their assessed RFC, the ALJ finally considers at Step Five
whether the claimant can do other work that exists in significant numbers in the national economy
considering the claimant’s RFC, alongside their age, education, and work experience, and the
corresponding testimony of a vocational expert. If the ALJ determines that the claimant cannot do
so, the claimant is entitled to disability benefits.
II. 	The ALJ’s Mental RFC Assessment
At the initial steps of the disability analysis framework, the ALJ found, inter alia, that
Plaintiff suffers from severe mental impairments of major depression disorder, bipolar II disorder,
and generalized anxiety disorder. (Tr. at 15.) In assessing Plaintiff’s mental RFC at Step Four of
the disability benefits analysis, the ALJ considered the relevant prior administrative findings and
opinions of two state agency psychological consultants (Dr. Barbara Markway and Dr. Mark
Altomari) and the consultative psychological examiner (Nina Epperson, M.S.)
At the earlier state agency administrative review stage of Plaintiff’s disability benefits
application process, both state agency psychological consultant, Dr. Markway and Dr. Altomari,
found that Plaintiff had moderate limitations in several areas of mental functioning. Specifically,
Dr. 	Markway 	and 	Dr. 	Altomari 	opined 	that 	Plaintiff 	had 	limitations 	in 	the 	areas 	of:
(1) understanding and memory (specifically, Plaintiff’s ability to understand and remember
detailed instructions); (2) concentration and persistence (specifically, Plaintiff’s ability to carry out
detailed instructions and to maintain attention and concentration for extended periods); (3) social
interaction (specifically, Plaintiff’s ability to interact appropriately with the general public); and
(4) adaptation (specifically, Plaintiff’s ability to respond appropriately to changes in the workplace
setting). (Tr. at 85-86, 96-97.) Consistent with Plaintiff’s limitations in these areas of functioning,
Dr. Markway and Dr. Altomari each opined that Plaintiff would be limited as follows:
(1) “[s]he can understand, remember and carry out a two-step command involving simple
instructions” (understanding and memory);
ultimately an administrative determination” for the ALJ. Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007).
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(2) “[s]he retains sufficient mental capacity to carry out two-step commands with adequate
persistence and pace; but she would struggle with detailed or complex instructions” (concentration
and persistence);
(3) “[s]he would function best in a setting where there is little need for direct supervision
or frequent interactions with coworkers and members of the public” (social interaction); and
(4) “[s]he is capable of adapting to changes which are predictable and introduced
gradually” (adaptation). (Tr. at 85-86; see Tr. at 96-97.)
The psychological consultative examiner, Nina Epperson, M.S., similarly opined that
Plaintiff:
(1) “is able to understand and remember simple, one to two step instructions and appears
capable of following through” (understanding and memory);
(2) has a “mildly impaired” ability to concentrate and would “likely . . . be able to focus on
simple and routine task[s] and would be able to follow through and maintain pace” (concentration,
persistence and pace);
(3) “is able to interact most effectively on a one to one basis” and “would be best suited in
employment situations that allowed her to work alone or in a small group” (social interaction); and
(4) “is likely to have difficulty adapting to new situations and would benefit from structure”
(adaptation). (Tr. at 464.)
The ALJ found all three opinions to be persuasive except as to the opinion that Plaintiff “is
limited to one to two step commands.” (Tr. at 22-23.) As to this opinion, the ALJ found that many
of the activities of daily living Plaintiff reported as being able to do “are . . . tasks that generally
require more than one to two steps,” such as living alone, preparing meals, driving, and cleaning
and doing laundry. 	(Tr. at 23.)2 	In other words, the ALJ found that Plaintiff is capable of
completing tasks requiring more than 1-2 step instructions. Ultimately, the ALJ assessed Plaintiff’s
mental RFC, in full, as follows:
[Plaintiff] is able to perform simple, routine, and repetitive tasks, but not at a
production rate pace. 	[Plaintiff] is able to interact with supervisors occasionally,
interact with co-workers occasionally, and interact with the public occasionally.
2 The ALJ also found unpersuasive M.S. Epperson’s opinion that Plaintiff was limited to working
alone or in small groups, similarly considering Plaintiff’s activities of daily living (such as shopping in
stores) and her normal mood and behavior on examination. (Tr. at 23.)
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With regard to dealing with changes in work setting, [Plaintiff] is able to make
simple work-related decisions.
(Tr. at 19.)
III. 	Plaintiff’s Arguments Challenging the Mental RFC
On appeal, Plaintiff asserts several arguments challenging the ALJ’s mental RFC
determination. 	First, she argues that the ALJ failed to comply with 20 C.F.R. § 416.920c in
evaluating the persuasiveness of the three expert opinions. Second, Plaintiff argues that the ALJ
failed to comply with Social Security Ruling 96-8p in assessing the opinions of Dr. Markway and
Dr. Altomari and formulating the mental RFC. Third, and finally, Plaintiff argues that the ALJ’s
finding that the opinions were unpersuasive as to a limitation to 1-2 step instructions is not
supported by substantial evidence.
A. 	Title 20 C.F.R. § 416.920c—Persuasiveness Determination (Consistency and
Supportability)
Plaintiff first argues that the ALJ erred as a matter of law because he did not fully consider
both the supportability and consistency of the three expert opinions as required by § 416.920c.
Under § 416.920c(a), the ALJ must “evaluate the persuasiveness” of each medical opinion or prior
administrative medical finding and cannot “defer or give any specific evidentiary weight” to any
particular opinion or prior finding. 	To evaluate the persuasiveness of the expert opinions or
findings, the ALJ must consider—and must “explain how [he] considered”—two factors
(supportability and consistency) and may consider other factors. § 416.920c(b)(2).
In this context, supportability refers to how “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 finding(s).” 	§ 416.920c(c)(1). 	Consistency refers to how consistent the
subject medical opinion is with “evidence from other medical sources and nonmedical sources in
the claim.” § 416.920c(c)(2). An ALJ’s failure to articulate and explain how both supportability
and consistency were considered in evaluating medical opinion evidence at the RFC-assessment
stage is reversible legal error. See Bonnett v. Kijakazi, 859 F. App’x 19, 20 (8th Cir. 2021) (per
curiam) (citing Lucus vSaul, 960 F.3d 1066, 1069-70 (8th Cir. 2020)). While an ALJ’s “failure to
follow the procedures prescribed” in the relevant regulations is reversible legal error, a “mere
drafting oversight” is not. Brueggemann v. Barnhart, 348 F.3d 689, 694 (8th Cir. 2003).
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1. 	Dr. Markway and Dr. Altomari
The Court finds that the ALJ properly considered both supportability and consistency of
the opinions of the two state agency psychological consultants, Dr. Markway and Dr. Altomari.
Both state agency consultants found that Plaintiff was limited in her understanding and memory
(i.e., that Plaintiff was capable of understanding, remembering, and carrying out a “two-step
command involving simple instructions”); concentration and persistence (i.e., that Plaintiff has
“sufficient mental capacity to carry out two-step commands” but that “she would struggle with
detailed or complex instructions”); social interaction (i.e., as having “little need for direct
supervision or frequent interactions with coworkers and members of the public”); and adaptation
(i.e., that Plaintiff “is capable of adapting to changes which are predictable and introduced
gradually”). The ALJ found Dr. Markway and Dr. Altomari’s opinions persuasive except for their
opinions that Plaintiff was limited to 1-2 step instructions.
In finding the state agency consultant’s opinion to be unpersuasive in this regard, the ALJ
noted (1) Plaintiff’s activities of daily living as reflected in the function report3 and (2) the findings
and opinions in the consultative examination report by M.S. Epperson, both of which were
included in the administrative record as reviewed by Dr. Markway and Dr. Altomari. (Tr. at 23.)
In the decision, the ALJ referred to M.S. Epperson’s consultative examination report as, in the
ALJ’s view, including “testing that demonstrates the claimant has no impairment in functional or
cognitive status, mild impairment with concentration, and normal thought, long term memory,
calculation, judgment, and insight.” (Id.) The ALJ cited the “mental status examination” section
of M.S. Epperson’s report, noting M.S. Epperson’s clinical findings, including:
Insight and Judgment: The claimant presented with insight into her mental health
issues and her judgment is intact.
Sensorium/Cognition: Ms. Sisler was alert and oriented to all spheres. She was
able to repeat after the examiner 3 of 3 unrelated objects immediately and recalled
2 of 3 after a five-minute interval. Overall, memory functions are considered intact.
She was unable to perform Serial 7’s and unable to perform Serial 3’s. she was able
to spell the word “World” forward and backward. 	The claimant demonstrated a
mild impairment with concentration and is easily distracted. The claimant’s general
fund of knowledge was average. 	The claimant was able to adequately interpret
3 The reconsideration decision appears to reference a second function report submitted by Plaintiff
dated March 3, 2023, (Tr. at 91), that would have been submitted after the initial determination dated
February 8, 2023. Neither the ALJ’s decision nor the administrative record appears to reference or include
a second function report submitted by Plaintiff.
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proverbs and her responses to the questions of similarity indicate the use of abstract
reasoning abilities. 	The claimant was able to perform simple mathematical
calculations without paper and pencil. 	Overall, Ms. Sisler appears to function in
the average range of intelligence.
(TR. at 464.)
The ALJ reasoned that both Plaintiff’s daily living activities and the clinical findings within
M.S. Epperson’s consultative examination report support the ALJ’s conclusion that Plaintiff “is
able to perform simple, routine, and repetitive tasks, but not at a production rate pace,” and
therefore finding that Dr. Markway and Dr. Altomari’s opinions limiting Plaintiff to 1-2 step
instructions was not persuasive. 	(Id.) 	In short, the Court is persuaded that the ALJ properly
considered both the supportability and consistency of Dr. Markway and Dr. Altomari’s opinions.
2. 	M.S. Epperson
In separately evaluating the persuasiveness of M.S. Epperson’s opinion, the ALJ found it
“persuasive to the extent that it opines the claimant is able to focus on simple and routine tasks
and is likely to have difficulty adapting to new situations” but was “not persuasive” to the extent
“the claimant is able to understand and remember simple, one to two step instructions.” (Tr. at
23.) The ALJ reasoned:
[Claimant] is able to live alone, shop, clean, do laundry, prepare meals, and drive;
these are all tasks that generally require more than one to two steps. As previously
mentioned, this limitation was raised by the claimant’s representative at the hearing,
and the undersigned finds the claimant is able to perform simple, routine, and
repetitive tasks, but not at a production rate pace. . . .
(Id.)
The Court finds that the ALJ properly considered both consistency and supportability of
M.S. Epperson’s opinion. As to consistency, the ALJ considered other nonmedical evidence in the
record, namely Plaintiff’s activities of daily living as reflected in both the hearing testimony and
the function report. 	Moreover, the ALJ specifically referenced the preceding discussion of the
persuasiveness of Dr. Markway and Dr. Altomari’s opinions as to the same one-to-two-step-
instruction limitation, wherein the ALJ noted that the conclusion that Plaintiff “is able to perform
simple, routine, and repetitive tasks, but not at a production rate pace” without a limitation to one-
to-two-step instructions “is consistent with” M.S. Epperson’s clinical findings. To the extent the
ALJ did not more explicitly reiterate or re-incorporate M.S. Epperson’s clinical findings in the
paragraph discussing the persuasiveness of M.S. Epperson’s opinions, Plaintiff identifies no more
than “an arguable deficiency in opinion-writing technique.” 	Hepp v. Astrue, 511 F.3d 798, 806
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(8th Cir. 2008) (internal quotation marks omitted). 	However, as explained above, the Court is
persuaded that the ALJ properly and adequately considered both the supportability and consistency
factors as to M.S. Epperson’s opinions.
B. 	Social Security Ruling 96-8p
Plaintiff’s second argument is more persuasive, at least in part. Social Security Ruling 96-
8p requires that when the ALJ’s RFC assessment “conflicts with an opinion from a medical source,
the [ALJ] must explain why the opinion was not adopted.” 1996 WL 374184, at *7. Put another
way, “[w]hen an ALJ finds a medical opinion persuasive . . . any limitations in the medical opinion
should [generally] be included in the ALJ’s RFC.” Batson v. Kijakazi, No. 20-03251-CV-S-WBG,
2022 WL 501405, at *4 (W.D. Mo. Feb. 18, 2022). Failure to do so—or the ALJ’s failure to explain
why the limitation was not included—is reversible error for lack of substantial evidence supporting
the ALJ’s RFC assessment. 	See Richardson v. Colvin, No. 5:16-06148-CV-RK, 2017 WL
6420283, at *2 (W.D. Mo. Dec. 18, 2017) (finding that remand was required where “the ALJ failed
to include or explain the omission of Dr. Pattison’s remaining limitations in his medical opinion
[that the ALJ did not discount but found was persuasive]”); see also Lewis v. Barnhart, 353 F.3d
642, 646 (8th Cir. 2003) (an ALJ must “set forth specifically a claimant’s limitations and . . . how
those limitations affect her RFC”).
Plaintiff argues that the ALJ failed to comply with SSR 96-8p here because the RFC as
assessed is inconsistent with several moderate limitations found by Dr. Markway and Dr. Altomari
in several areas of Plaintiff’s mental functioning, which the ALJ found persuasive: understanding
and memory (that Plaintiff would be limited to “simple” instructions); concentration and
persistence (i.e., that Plaintiff would “struggle with detailed or complex instructions”); and
adaptation (i.e., that Plaintiff could adapt “to changes which are predictable and introduced
gradually”).4
The Court is somewhat persuaded that the ALJ properly and adequately accounted for the
moderate limitations in the two functional areas of (1) understanding and memory, and
(2) concentration and persistence, both related to the complexity of instructions. The RFC limits
Plaintiff to “simple, routine, and repetitive tasks.” In Howard v. Massanari, 255 F.3d 577 (8th Cir.
4 As set out above, the ALJ only found the expert opinions unpersuasive solely as to the opinion
that Plaintiff was limited to 1-2 step instructions. The necessary implication is that the ALJ otherwise found
the expert opinions persuasive. The Commissioner does not present any argument to the contrary.
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2001), the Eighth Circuit considered whether there was a conflict between an expert opinion that
Howard, in part, “was ‘capable of performing simple instructions and procedures despite
borderline to deficient attention/concentration and borderline IQ,” and the ALJ’s RFC assessment
that included that “the claimant is only capable of performing simple, routine, repetitive work.”
Id. at 579, 580. On appeal, Howard argued that the deficiencies of concentration, persistence or
pace were not adequately presented to the vocational expert at Step Five of the sequential analysis,
in that the ALJ asked the vocational expert “to assume that Howard would be capable of
performing simple, routine, repetitive tasks.” Id. at 582. The Eighth Circuit found that there was
no conflict, finding that “the ALJ’s hypothetical concerning someone who is capable of doing
simple, repetitive, routine tasks adequately captures Howard’s deficiencies in concentration,
persistence, and pace,” i.e., that Howard was “able to sustain sufficient concentration and attention
to perform at least simple, repetitive, and routine cognitive activity without severe restriction of
function.” Id.; see also Galloway v. Kijakazi, 46 F.4th 686, 690 (8th Cir. 2022) (recognizing there
is “no direct conflict” between an RFC limitation to “carrying out simple job instructions for
simple, routine and repetitive work activity” and a vocational expert’s testimony that Galloway
could perform jobs “involving instructions that, while potentially detailed, are not complicated or
intricate”) (internal quotation marks omitted).
Nonetheless, the Court need not decide this issue, either, because the Court is more
persuaded that the RFC failed to properly account for Plaintiff’s limitation in adapting to changes
in the workplace, a limitation which the experts similarly opined and which the ALJ found
persuasive. 	Dr. Markway and Dr. Altomari opined that Plaintiff could adapt to “changes which
are predictable and introduced gradually.”5 As noted above, the ALJ found these opinions to be
persuasive. 	Indeed, in the written decision, the ALJ noted, similarly, “[b]ecause of her mental
impairments, the claimant is . . . limited to changes in daily duties-- . . . as further described in the
residual functional capacity.” (Tr. at 22.) 	However, in setting forth the RFC, the ALJ assessed
Plaintiff’s mental RFC as:
The claimant is able to perform simple, routine, and repetitive tasks, but not at a
production rate pace. The claimant is able to interact with supervisors occasionally,
interact with co-workers occasionally, and interact with the public occasionally.
5 The Court notes that M.S. Epperson similarly opined that Plaintiff “is likely to have difficulty
adapting to new situations and would benefit from structure.” (Tr. at 464.) The ALJ specifically found this
opinion by M.S. Epperson to be persuasive. (Tr. at 23.)
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With regard to dealing with changes in work setting, the claimant is able to make
simple work-related decisions.
(Tr. at 19.) 	The ALJ reiterated this same formulation in the hypotheticals presented to the
vocational expert. (Tr. at 60, 61.)
Most likely, it appears that the ALJ simply erred in formulating the RFC. In the written
text of the RFC discussion, the ALJ expressly stated that he intended to limit Plaintiff to “limited
changes in daily duties.” 	(Tr. at 22 (explaining that, “[b]ecause of her mental impairments, the
claimant is limited to simple, routine, and repetitive tasks, with limited social interaction, and
limited changes in daily duties—all as further described in the residual functional capacity”).)
However, neither the RFC formulation nor the ALJ’s hypotheticals to the vocational expert
properly accounted for any similar limitation to “limited changes in daily duties.” 	The
Commissioner suggests in a single statement, without any supporting analysis or legal authority,
that the ALJ accounted for Plaintiff’s moderate limitation in adaptation (regarding changes in the
workplace) by limiting Plaintiff to “making only simple work-related decisions related to
workplace changes.” The ability to make simple work-related decisions, however, is a different
area of mental functioning (judgment) than an ability to deal with changes in the workplace
(adaptation). 	McGehee v. Saul, No. 18-1164 KK, 2019 WL 6219507, at *10 (D.N.M. Nov. 21,
2019) (recognizing that “a restriction to ‘simple work-related decisions’—which is associated with
the ability to exercise judgment—does not account for a limitation in the ability to appropriately
respond to changes in the workplace, which is associated with a different of the four basic mental
demands”) (citing POMS § DI 25020.010B.2.b and POMS § 25020.01B.2.d). 	Neither does the
ALJ’s limitation to simple, routine, and repetitive tasks appear to account for Plaintiff’s moderate
limitation in adaptation regarding workplace changes (which the ALJ found persuasive). Jennifer
v. Kijakazi, No. 22-cv-700 (NEB/DTS), 2023 WL 3998033, at *4-5 (E.D. Mo. May 26, 2023)
(recognizing that limitation to “simple, routine, repetitive task[s]” are generally “related to the
concentrate, persist, and maintain pace, area of function” while “a limitation to few if any work
place changes deals largely with workplace adaptation, rather than concentration, pace, or
persistence”) (internal quotation marks omitted; quotation modified) (collecting cases). 	The
Commissioner simply glosses over these distinctions and does not provide any cogent and helpful
analysis.
If the ALJ intended the limitation to “simple work-related decisions as to workplace
changes” to account for Plaintiff’s adaptation limitation (i.e., to predictable and gradually
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introduced changes, which the ALJ found persuasive), on this record and without any logical
bridge between the RFC limitation and the nature Plaintiff’s adaptation limitation opined by Dr.
Markway and Dr. Altomari (as well as M.S. Epperson), the Court is unable to say whether the
ALJ’s RFC assessment is supported by substantial evidence. If the ALJ merely omitted from the
RFC the intended limitation that Plaintiff have “limited changes in daily duties,” the Court cannot
say (and the Commissioner does not argue) that the oversight is harmless error. In short, the lack
of clarity simply does not allow for adequate review and makes it impossible for the Court to
consider whether the ALJ’s RFC assessment, and the subsequent findings under the disability
benefits analysis, are supported by substantial evidence. See Hardy v. Dudek, No. 4:24-cv-0171-
MTS, 2025 WL 917222, at *7 (E.D. Mo. Mar. 26, 2025); Thurman v. Colvin, No. 2:12-CV-2138,
2013 WL 2385231, at *4 (W.D. Ark. May 30, 2013).
Because the Court finds the ALJ failed to comply with SSR 96-8p, the ALJ’s decision is
reversed, and the case is remanded for a supplemental administrative hearing followed by a new
written decision.
C. 	Substantial Evidence
As noted above, Plaintiff also raises a substantial evidence challenge to the ALJ’s decision
finding the expert opinions unpersuasive as to a 1-2 step instruction limitation. 	Specifically,
Plaintiff argues that the ALJ improperly relied on Plaintiff’s activities of daily living in making
this determination. She argues that relying on Plaintiff’s activities of daily living is not substantial
evidence to support the ALJ’s determination that this opinion by the experts was unpersuasive
because doing so either (1) improperly substitutes the ALJ’s opinion for the expert opinions, or
(2) fails to consider the episodic nature of mental illness and its symptoms and that these activities
are not performed with the same vigor or structure that is required of an employee in the workplace.
The Court is not persuaded. See Reece v. Colvin, 834 F.3d 904, 910 (8th Cir. 2016) (finding “other
evidence in the record also supports the ALJ’s decision not to accord Dr. Robinette’s opinion
controlling weight,” namely that “Reece’s daily activities are not indicative of someone who is
completely unable to work”).
First, the Court notes that in making this determination, the ALJ relied on both Plaintiff’s
activities of daily living and M.S. Epperson’s clinical findings (at least in evaluating the
persuasiveness of Dr. Markway and Dr. Altomari’s opinions, if not M.S. Epperson’s opinion as
well) for the limited or targeted finding that the 1-2 step instruction limitation was not persuasive.
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This case is thus distinguishable from Singh v. Apfel, 222 F.3d 448 (8th Cir. 2000), as cited by
Plaintiff. 	In Singh, the Eighth Circuit found that the “ALJ failed to properly credit Singh’s
subjective complaints of pain, all of which were consistent with the objective medical evidence.”
Id. at 452. 	Moreover, the Eighth Circuit found that “Singh’s testimony regarding his daily
activities—staying around the house, watching T.V., needing help to shave, being unable to sit
through an entire movie—are all consistent with his complaints of disabling pain.” Id. 453. Here,
though, Plaintiff’s activities of daily living as found by the ALJ do appear to be inconsistent with
a 1-2 step instruction limitation.
Second, contrary to Plaintiff’s argument, the ALJ did acknowledge Plaintiff’s testimony
that she has “good days” and “bad days” but found good reasons to discount this testimony.
Specifically, the ALJ also noted Plaintiff’s testimony that she no longer attended therapy because
she had “progressed in life” and that Plaintiff’s treatment records demonstrate she is relatively
stable and doing well on her psychiatric medications in addition to reflecting routinely normal
clinical findings and unremarkable mood, cooperation, and functional or cognitive status. (Tr. 21-
22.) 	The ALJ 	properly 	discounted 	Plaintiff’s 	subjective 	complaints 	and 	considered 	the
persuasiveness of the relevant medical opinions or prior administrative findings concerning any
limitation to 1-2 step instructions in light of Plaintiff’s activities of daily living that require more
than two steps. See Alicia G. v. O’Malley, No. 22-cv-02268-TC, 2024 WL 53105, at *6 (D. Kan.
Jan. 4, 2024) (finding that “it is plausible that Plaintiff’s activities [of daily living] are inconsistent
with a limitation to one and two step instructions”). 	In short, the Court is persuaded the ALJ’s
determination appears to fall within the “zone of choice” and is thus supported by substantial
evidence. Cropper, 136 F.4th at 815.
IV. 	Plaintiff’s Other Arguments on Appeal
Plaintiff raises several other arguments on appeal. She argues that the ALJ’s physical RFC
is not supported by substantial evidence because the ALJ stated that “some additional postural and
environmental limitations” were assessed “to account for some of the claimant’s alleged
symptoms” but did not include any such postural or environmental limitations in the RFC
assessment. 	She also argues that the ALJ improperly relied on the purported lack of treatment
without complying with SSR 16-3p when the ALJ “did not inquire of Plaintiff as to why she missed
some appointments,” and where there is “no . . . evidence Plaintiff would be restored to work had
she not missed a few appointments.” Finally, she asserts that the ALJ erred at Step Four by finding
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that Plaintiff could perform past relevant work as a housekeeper cleaner (DOT 323.687-014),
which does not constitute past relevant work under the applicable “substantial gainful activity
level” requirement established under 20 C.F.R. § 416.965. Because the Court remands the case
for a new written decision following a supplemental administrative hearing, the Court leaves it to
the ALJ to address these issues on remand as may be necessary.
Conclusion
Accordingly, after careful consideration and review, the Court ORDERS that the ALJ’s
decision is REVERSED and REMANDED for a supplemental administrative hearing followed
by a new written decision.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: March 31, 2026
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