Moore v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DONALD WAYNE MOORE 	PLAINTIFF
V. 	Civil No. 2:24-cv-02024-TLB-MEF
CAROLYN COLVIN, Acting Commissioner,
Social Security Administration1 	DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Donald Wayne Moore (“Moore”), seeks judicial review of the final decision of
the Social Security Administration denying Moore’s application for a period of disability and
disability insurance benefits under Title II of the Social Security Act (“the Act”). See 42 U.S.C.
§§ 416(i), 423(d). 	On judicial review, the Court must determine whether there is substantial
evidence in the administrative record to support the decision. See 42 U.S.C. § 405(g).
I. 	BACKGROUND
Moore protectively filed his application for benefits on November 3, 2020, alleging the
inability to perform any substantial gainful activity since October 15, 2019, due to degenerative
joint disease, carpal tunnel syndrome, sciatica, arthritis, depression, and anxiety. (ECF No. 8, pp.
97, 174-179, 197-203). At the time of filing, Moore was 46 years old, had graduated high school,
and had past relevant work experience as a prep cook, restaurant manager, and fry cook. (Id., pp.
25, 36, 41-42). He was insured until December 31, 2023. (Id., p. 16).
1 Carolyn Colvin was designated the Acting Commissioner of Social Security on November 30,
2024, and in her official capacity is substituted as defendant. See Fed. R. Civ. P. 25(d).
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Moore’s claim for benefits was denied initially on July 23, 2021, and was denied upon
reconsideration on January 11, 2022. 	(ECF No. 8, pp. 14, 65-96, 113-114). 	He filed a written
request for a hearing and noted that he was represented by an attorney. 	(Id., pp. 113-114, 132-
134). Moore and his attorney appeared for the hearing held on October 31, 2022. (Id., pp. 34-64).
On January 31, 2023, Administrative Law Judge, Harold Davis, issued an unfavorable
decision. (ECF No. 8, pp. 11-27). He found that Moore had severe impairments of degenerative
disc disease at C6-7 and L4-5, carpal tunnel syndrome status post bilateral releases, osteoarthritis
of the right knee, depression, and anxiety, but that Moore did not have an impairment or
combination of impairments that met or medically equaled the severity criteria for presumptive
disability under the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.,
pp. 16-18). 	He further determined that Moore retained the functional capacity to perform light
work, as defined in 20 C.F.R. § 404.1567(b), except that he was limited to jobs involving simple
tasks with no detailed or complex instructions and only incidental contact with the public, and he
could only occasionally climb, kneel, crawl, or balance. 	(Id., p. 18-25). 	Considering this RFC
along with Moore’s age, education, and work experience, and with the assistance of a vocational
expert, the ALJ determined that Moore was unable to perform any past relevant work but could
still perform jobs that existed in significant numbers in the national economy, including work as a
small products assembler (DOT No. 706.684-022), a power screwdriver operator (DOT No.
699.685-026), and a routing clerk (DOT No. 222.687-022). (Id., pp. 25-26, 60-61). Thus, the ALJ
found that Moore was not entitled to benefits under Title II. (Id., pp. 25-26).
The Appeals Council denied review on December 19, 2023. 	(ECF No. 8, pp. 1-7, 171-
172). Moore then timely filed this action for judicial review on February 20, 2024. (ECF No. 2).
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The parties have fully briefed the issues, which are before the undersigned for report and
recommendation. (ECF Nos. 7, 10, 14).
II. 	APPLICABLE LAW
Under 42 U.S.C. § 405(g), this Court must determine whether the Commissioner’s decision
is supported by substantial evidence on the record as a whole. Vossen v. Astrue, 612 F.3d 1011,
1015 (8th Cir. 2010). The threshold for substantial evidence is not high. Biestek v. Berryhill, 587
U.S. 97, 103 (2019). It is more than a mere scintilla of evidence, but less than a preponderance,
meaning it requires “only ‘such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’” Pierce v. Kijakazi, 22 F.4th 769, 771 (8th Cir. 2022) (quoting Biestek,
587 	U.S. 	at 	103). 	“The 	substantial-evidence 	standard 	allows 	considerable 	latitude 	to
administrative decision makers” and “presupposes that there is a zone of choice within which the
decisionmakers can go either way, without interference by the courts.” Baker v. Heckler, 730 F.2d
1147, 1150 (8th Cir. 1984). Thus, a reviewing court considers both evidence that detracts from
the ALJ’s decision and evidence that supports it, Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir.
2011), and if the decision is supported by substantial evidence on the record as a whole, it must be
affirmed even if substantial evidence also exists for the opposite decision, Long v. Chater, 108
F.3d 185, 187 (8th Cir. 1997).
A claimant for Social Security disability benefits bears the burden of proving his
disability. 	Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see also 42 U.S.C. §
423(d)(5) (stating that an individual shall not be considered to be under a disability unless he
furnishes such medical and other evidence of the existence thereof). Disability is defined as the
“inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which … has lasted or can be expected to last for a continuous
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period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(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).
To determine whether a claimant is disabled, the Commissioner’s regulations require the
application of a five-step sequential evaluation process, considering: (1) whether the claimant has
engaged in substantial gainful activity since filing the claim; (2) whether he has a severe physical
or mental impairment or combination of impairments; (3) whether any such impairment(s) meet
or equal a listed impairment; (4) whether the claimant’s limitations from his impairment(s) prevent
him from performing past relevant work; and, if so, or if he has no past relevant work, (5) whether
he is able to perform other work in the national economy given his age, education, work
experience, and residual functional capacity (“RFC”). 	20 C.F.R. § 404.1520(a)(4)(v). 	A
claimant’s RFC, which is defined as the most he can do in a work setting despite his limitations,
is assessed between steps three and four and is used to evaluate the disability claim at steps four
and five. 20 C.F.R. §§ 404.1520(a)(4), (e); 20 C.F.R. § 404.1545(a).
III. 	DISCUSSION
On judicial review, Moore argues that the Commissioner’s decision is not supported by
substantial evidence because the ALJ: (1) did not fully and fairly develop the record; (2) erred at
step two of the sequential analysis; (3) inadequately evaluated Moore’s subjective complaints; and
(4) inadequately assessed his RFC.
A. 	Development of the Record
Moore first asserts error in the ALJ’s assessment of his RFC, arguing that it is “unsupported
by any opinion evidence from any treating or examining source.” 	(ECF No. 10, pp. 6-7). 	He
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contends that the ALJ was required to develop specific opinion evidence because he found the
consultative medical opinion and the prior administrative medical findings unpersuasive. (Id., pp.
6-9). The ALJ deemed the opinion of consultative examiner, Nurse Jessica Duggar, and the prior
administrative medical findings of the reviewing agency consultants, unpersuasive because these
consultants had not considered relevant medical records and testimony that were developed after
their assessments had been completed. (ECF No. 8, pp. 19-24).
Nurse Jessica Duggar had performed a general physical consultative examination of Moore
in July 2021. 	She considered Moore’s medical history, which included right-knee arthroscopic
surgeries in 2017 and 2019; treatment for back pain with right-side sciatica; bilateral carpal-tunnel
releases in 2019, with continued complaints of numbness and tingling from the shoulders to hands;
and depression treated by primary care. (ECF No. 8, p. 573). Her examination findings showed
normal range of motion in all extremities and in the cervical and lumbar spine, with no swelling
or tenderness, no muscle spasms, atrophy, or weakness, and straight-leg-raise testing was negative
bilaterally. 	(Id., pp. 575-576). 	She further found Moore had normal reflexes, normal gait and
station, no sensory abnormalities, full grip strength, and was able to perform all limb function tests,
except he could not walk on his toes, and he could only partially squat and rise from a squatting
position. Nurse Duggar assessed osteoarthritis of the right knee, low back pain with sciatica on
the right, and numbness and tingling. 	She opined that the only function in which Moore
experienced a limitation was squatting, which she described as a “mild” limitation. 	(Id., p. 22,
577).
In the same month, agency consultants, Alan Kauffman, Psy.D., and Ken Murphy, M.D.,
also considered the medical records documenting Moore’s medical history, along with Nurse
Duggar’s report, and collectively determined that Moore was limited to light exertional work with
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some postural limitations, and that he was further limited to unskilled work. 	(Id., pp. 67-82).
Agency consultants Jeanne Yakin, Ph.D., and Jonathan Norcross, M.D., on the other hand,
considered the foregoing records and more recent medical records from the latter half of 2021 and
determined that although Moore was limited to light exertional work with postural limitations, his
impairments of depression and anxiety were not severe, and they assessed no limitations in the
basic mental demands of work. (Id., pp. 90-96).
The ALJ noted these consultants had not considered evidence of Moore’s subsequent left-
knee arthroscopy, neck pain that radiated into the bilateral upper extremities, imaging reflecting
C-spine abnormalities, additional epidural steroid injections, as well as his pursuit of treatment for
left-foot pain, and his hearing testimony that he was scheduled for surgery on his left foot and was
going to see a psychiatrist for worsening depression. (ECF No. 8, pp. 22-23). The ALJ considered
the record as a whole, including the subsequently developed evidence and testimony, and he
determined that Moore could perform light work, but could only occasionally climb, kneel, crawl,
and balance, and was further limited to jobs involving simple tasks, with no detailed or complex
instructions, and only incidental contact with the public. (Id., p. 18-25). Moore argues that absent
specific opinion evidence, “the only possibl[e] conclusion is that the ALJ drew his own inferences”
from the medical evidence when assessing Moore’s RFC. 	(ECF No. 10, p. 8). 	He insists that
remand is required for the development of RFC opinion evidence. (Id., pp. 8-9). The undersigned
disagrees.
The ALJ has a duty to develop a record that is “sufficiently clear to make a fair
determination as to whether the claimant is disabled[.]” Landess v. Weinberger, 490 F.2d 1187,
1189 (8th Cir. 1974). 	And, as a component of the disability determination, the ALJ’s RFC
assessment, which entails a medical question, “must be supported by some medical evidence of
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the claimant’s ability to function in the workplace.” Cox v. Astrue, 495 F.3d 614, 619 (8th Cir.
2007). “However, there is no requirement that an RFC finding be supported by a specific medical
opinion.” Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016). “In the absence of medical opinion
evidence, ‘medical records prepared by the most relevant treating physicians [can] provide
affirmative medical evidence supporting the ALJ’s residual functional capacity findings.’”
Hensley, 829 F.3d at 932 (alteration in original) (quoting Johnson v. Astrue, 628 F.3d 991, 995
(8th Cir. 2011)).
In this case, the Commissioner obtained, inter alia, more than 500 pages of medical records
prepared by Moore’s treating and examining physicians from throughout the relevant period. (ECF
No. 8, pp. 303-829). 	These records contain relevant facts, observations, and medical conclusions
which bear directly on Moore’s impairments and the extent of his ability to function in a work
environment. 	See Cox, 495 F.3d at 620 n.6 (holding that “facts, observations, and medical
conclusions [by claimant’s treating physician] which bear directly on the extent of [her] ability to
function in a work environment” may provide sufficient medical evidence to support the ALJ’s
RFC determination).
Specifically, Moore saw Dr. Joseph Miller for pain management between March 2019 and
October 2022. (ECF No. 8, pp. 308-314, 742-757). Progress notes from these encounters show
that Moore first saw Dr. Miller on March 25, 2019, for low back pain that radiated down the left
thigh to the knee. Moore indicated he had experienced the pain intermittently for 20 years, and
that heat and stretching helped, but the episodes had increased in number and severity, and the pain
was causing difficulty when bending over or lifting things. 	(Id., pp. 313-314). 	His review of
systems indicated muscle pain and weakness, back pain, and joint pain/swelling, but no gait
disturbance. 	(Id.). 	Examination of the lumbar spine reflected limited flexion but adequate
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extension; tenderness over the muscles and facets on the left at L5-S1, but not the right; and the
sacroiliac joints were non-tender and stable. 	Examination of the upper and lower extremities
showed no motor or neurological deficits associated with spinal diseases, and a report from a
previous CT scan showed degenerative disc disease at L4-5 with herniation, and at L5-S1 with
herniation and moderate canal stenosis. (Id., p. 314). Moore was noted to have a tender right knee
from recent arthroscopic surgery, but his range of motion was “still good.” 2 	(Id., p. 314). 	Dr.
Miller assessed intervertebral disc disorder of the lumbar region with radiculopathy, and he
recommended an epidural steroid injection at L5-S1, which was administered four days later. (Id.,
pp. 310-312, 314).
At a follow-up appointment on May 6, 2019, Moore reported that he had experienced great
relief, between 60-70%, from the injection, that he was stretching, using heat, doing well, and his
activity level had returned to almost normal, but he was avoiding forward bending and stooping.
(ECF No. 8, pp. 308-309). He still had slight pain in the low back and leg, but it did not appear to
be increasing, and he did not require a second injection. (Id., p. 309). Moore did not return to see
Dr. Miller for treatment of back or leg pain after the appointment on May 9, 2019; however, he did
return three years later, on April 4, 2022, for complaints of neck and arm pain. 	Dr. Miller’s
progress notes from this encounter reflect that Moore had reported almost complete relief from the
lumbar injection administered in March 2019, and that he had been “asymptomatic with normal
function since then.” (Id., p. 748-749).
Before he returned to see Dr. Miller in 2022, Moore went to the emergency department on
January 14, 2020, for a knee injury sustained the previous day while playing with his dog. (ECF
2 In January 2019, Moore had undergone arthroscopy to correct partial lateral and partial medial
meniscal tears in his right knee. (ECF No. 8, pp. 344-345, 460).
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No. 8, p. 460). He said he had been running backward, stepped into a hole, and twisted his right
knee. (Id.). His examination reflected mild tenderness of the knee, full extension, and flexion to
115 degrees due to swelling and effusion, and his gait was normal. 	(Id., p. 462). 	Fluid was
extracted from the knee joint by arthrocentesis, and Moore was advised to follow up with
orthopedist, Dr. Stephen Heim, who had performed the second of two arthroscopic surgeries Moore
underwent to correct meniscal tears in the right knee joint in 2017 and early 2019. (Id., pp. 344-
345, 462-464). Dr. Heim assessed degenerative arthritis of the right knee in February 2020, noting
that Moore had moderate effusion and crepitus and that x-rays showed mild narrowing of the
medial compartment and osteophytic changes. 	(Id., pp. 344, 350). 	Dr. Heim performed
arthrocentesis and administered a Synvisc injection, but Moore returned on March 3, 2020, with
complaints that his right-knee pain had increased following the Synvisc injection. He also sought
treatment for carpal tunnel syndrome confirmed by an EMG//NCV study in January 2020. (Id.,
pp. 321-323, 356, 359, 410-411). Dr. Heim noted that conservative measures had been exhausted
as to Moore’s right knee but that his left knee looked “quite good.” He stated that Moore would
have to decide whether he wanted to have the right knee replaced in the future, noting that he could
“certainly live with it” if that is what he chose to do. (Id., p. 359).
Dr. Heim performed carpal tunnel release on both of Moore’s wrists in 2020. At a follow-
up to the first procedure in March 2020, Moore reported that he had experienced immediate relief,
and his examination showed full return of sensation in the median nerve distribution of the left
wrist. (ECF No. 8, pp. 362, 365). At a two-week follow-up after the second procedure in June
2020, Moore reported that his fingers had already awakened and that he was having no difficulty.
Dr. Heim told him to limit his activity for the next two weeks and, after that, he could increase it.
(Id., pp. 368, 371).
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As noted, Moore eventually returned to see Dr. Miller. On April 4, 2022, Moore reported
neck pain that extended into his shoulders, mostly in his left shoulder, and his left arm would
become numb while sleeping on his back. 	He rated the pain 3/10 and said it was worse lying
down, better with BC powders, that it was disrupting his sleep, and he was avoiding turning to the
left. 	(ECF No. 8, p. 748). 	Dr. Miller reviewed a CT scan of the cervical spine performed in
November 2021, which showed disc osteophyte changes at C3-C7, causing moderate right
foraminal narrowing at C6-7, minimal bilateral foraminal narrowing at C5-6, moderate bilateral
narrowing at C4-5, and severe right and moderate left foraminal narrowing at C3-4. (Id.). Moore
denied any changes in strength or coordination, but his review of systems was positive for
musculoskeletal tenderness, stiffness, and pain, and he reported a gait disturbance.3 Moore was
walking unassisted, however, at this and all other encounters with Dr. Miller. (Id., pp. 309, 311,
313, 744, 48-749, 752, 756). 	Dr. Miller found Moore’s examination to be consistent with facet
disease/spondylosis which caused slight radiculopathy and a mid-facet pattern of referred pain.
He prescribed meloxicam, recommended a cervical epidural about C6-C7, and instructed Moore
on specific stretches to begin performing immediately, twice daily at home. (Id., pp. 749-50).
At a follow-up on June 27, 2022, Moore had no significant pain complaints, reported his
pain level was acceptable with his current therapy, and his activity level was in line with his
expectations. (ECF No. 8, p. 746). On October 7, 2022, three weeks before his disability hearing,
Moore returned for a second injection. 	(Id., pp. 744-745). 	He reported experiencing excellent
relief—80% sustained relief—from the epidural administered five-and-a-half months earlier;
3 At this time, Moore was awaiting arthroscopic surgery to repair meniscal tears and an MCL injury
to his left knee, diagnosed in February 2022. (ECF No. 8, pp. 20-21, 808, 817, 825-827). At a
visit to his orthopedist on March 30, 2022, he was noted to be walking with a slight limp and was
experiencing moderate tenderness at the medial-lateral joint line of the left knee. (Id., p. 817).
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however, his pain had returned, mostly on the right, and was traveling to his fingers. He rated it
7/10 and reported diminished activity level and sleep disruption. 	(Id.). 	Moore’s physical
examination showed preserved cervical flexion, extension, and rotation both left and right. He had
mild pain with extension/rotation axial loading on the right, and dysesthesia/radiculopathy to his
fingers, but no direct focal tenderness. 	And his examination reflected no new neuromotor or
sensory changes. (Id., pp. 745). Dr. Miller advised Moore to continue the stretching and exercises,
and he administered a second epidural on October 11, 2022, with a follow-up planned in three-
and-a-half months—after Moore’s disability hearing. (Id. 745, 754-755).
Regarding Moore’s left-knee impairment, he saw orthopedist, Dr. John Harp, on February
28, 2022, for evaluation. Moore denied trauma but noted burning over the anterior lateral aspect
of the knee over the previous five or six months. He described the pain as frequently intense and
a nuisance with day-to-day activities, and he was taking ibuprofen and BC powders as needed.
(ECF No. 8, pp. 20, 820). Dr. Harp’s examination showed no effusion and no medial joint line
tenderness, but the joint line on the lateral side was tender. McMurray testing was positive with
external rotation, but strength, sensation, and range of motion were normal. 	(Id., p. 823).
Subsequent imaging of Moore’s left knee on March 2, 2022, showed an oblique tear of the lateral
meniscus extending to the posterior horn/junction, and mildly complex tearing of the body and
posterior horn of the medial meniscus. Moderate joint effusion was noted, along with a Grade 1
MCL injury and Grade 3 cartilage loss at the femoral condyle. (Id., pp. 825-827). As previously
noted, at a follow-up appointment on March 30, 2022, Moore was noted to be walking with a slight
limp and experiencing moderate tenderness at the medial-lateral joint line. He opted to undergo
arthroscopy on April 28, 2022, which entailed partial medial lateral meniscectomies and
microfracture chondroplasty of the lateral femoral condyle and the trochlear groove. (Id., pp. 808,
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817). He returned for a follow-up visit on May 9, 2022, and was noted to have no complaints. He
did not request opioid pain medication and stated his pain was acceptable. (Id., p. 808). Dr. Harp
noted that he and Moore had discussed the findings of Grade 3-4 arthritis, and he released Moore
to resume full activities without restriction, noting that he suspected Moore would require total
knee replacement in the next 10 years. 	(Id., p. 811). 	As previously discussed, progress notes
prepared by Moore’s pain-management provider reflect that on June 27, 2022, Moore reported that
he had no significant pain complaints, that his pain level was acceptable, and his activity level was
in line with expectations. (Id., p. 746).
Three weeks prior to his arthroscopy procedure, Moore had seen his primary-care provider
for a routine follow-up. (ECF No. 8, pp. 852). His physical examination reflected normal range
of motion in the musculoskeletal system and the cervical spine, normal coordination, and his PHQ-
9 depression screening score was 0. 	(Id., pp. 860-861). 	He reported not going to counseling
because he had hesitations. 	(Id., 855). 	His hypothyroidism, hyperlipidemia, depression, and
anxiety were noted to be stable. (Id., p. 854-856, 857). He was assessed with a “corn” on his foot
and was referred to a podiatrist, Dr. Scott Bird, for evaluation. (ECF No. 8, pp. 852, 864).
Moore saw Dr. Bird on May 9, 2022, coincidentally the same day he saw Dr. Harp who
released him to full activities after his arthroscopy procedure. Moore reported that a callus had
been forming on the underside of his left foot for several years, which caused pain with standing,
walking, and activity, and was relieved by rest. He had not tried using callus pads. (ECF No. 8,
p. 791). 	On examination, Dr. Bird noted Moore had full strength in all foot and ankle muscle
groups and good range of motion in the left foot and ankle joints with the knee in flexion and
extension. 	He also noted, however, that a dorsal contracture of the fifth toe was overriding the
fourth toe, and x-rays confirmed the hyperkeratosis (corn) and contracture, resulting in hammertoe.
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(Id., pp. 791, 794, 797). 	Dr. Bird discussed non-surgical treatment options with Moore, which
included padding and offloading, the use of topical urea lotion, supportive shoes, and debridement
using a pumice stone. 	He also discussed the potential surgical option of lifting the fourth
metatarsal and correcting the contracture to repair the hammertoe of the fourth and fifth digits.
(Id., p. 791). On September 13, 2022, Moore returned and expressed interest in surgery, and Dr.
Bird noted that Moore was likely to benefit from it. Moore was to return on November 13, 2022,
for reevaluation. (Id., p. 780). In the interim, Moore attended his disability hearing on October
31, 2022, and testified that he had seen Dr. Bird earlier in October and his surgery had been
scheduled for January 12, 2023. 4 (Id., p. 46).
Upon careful consideration of the foregoing evidence, the undersigned concludes that
Moore was not deprived of a full and fair disability determination. 	Considered as a whole, the
record contained the evidence necessary for an informed decision, and no crucial issue was
undeveloped. Contrary to Moore’s argument, the ALJ was not required to obtain evidence in the
form of a medical opinion solely because new material evidence of additional impairments had
rendered the existing medical opinion and agency RFC assessments unpersuasive insofar as they
were not informed by the new evidence. Moore suggests two cases support his per se rule: Davis
v. Comm’r, Soc. Sec. Admin., No. 5:22-CV-5201, 2024 WL 1375051 (W.D. Ark. Mar. 31, 2024)
and Wyers v. Kijakazi, No., 2:21-cv-02031-PKH-MEF, 2022 WL 2951457 (W.D. Ark. July 8,
2022). 	(ECF No. 10, p. 8-9). 	In each case, the Court considered whether the record contained
4 The ALJ left the record open for 30 days following the hearing to allow Moore to provide the
record of this encounter. (ECF No. 8, p. 46). The records provided, however, reflect no encounter
with Dr. Bird in October 2022. (Id., pp. 830-873). They do document Moore’s encounter with his
primary-care doctor for a routine follow-up on October 11, 2022, but the record of this encounter
contains no mention of Moore’s left foot or of any scheduled surgery. 	(Id., pp. 830-851). And
although Moore supplied additional records to the Appeals Council during his administrative
appeal, those records were from The Guidance Center, not from Dr. Bird. (Id., p. 1-2).
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sufficient evidence to allow an informed decision absent the existing medical opinion or prior
administrative medical findings, and the Court concluded that, due to an ambiguity in the medical
evidence of the claimant’s condition, it did not. See Davis, 2024 WL 1375051, at 3-5; Wyers, 2022
WL 2951457, at 7. Here, as discussed, there is no ambiguity in the medical record as to any of
Moore’s medical conditions.
Notably, Moore does not contend that any material treatment records for his impairments
were not included in the record. 	See 20 C.F.R. §§ 404.1512(b)(1)(ii), (2); § 404.1545 (noting
Commissioner’s duties with respect to record development). 	Further, the ALJ denied Moore’s
request for the development of “specific residual functional capacity opinion” from his treating
sources 	and 	from 	consultative 	examiners, 	specifically 	finding 	that 	no 	crucial 	issue 	was
undeveloped and explaining that the current records from Moore’s own medical sources were
complete and detailed enough to make an informed decision.5 (ECF No. 8, p. 26). Despite having
had the opportunity to request medical source statements from his treating physicians, Moore
submitted no opinion evidence to support his claim that the RFC assessment does not account for
all his impairments. 	See Weber v. Barnhart, 348 F.3d 723, 725-726 (8th Cir. 2003) (noting the
claimant failed to obtain the evidence at issue during the appellate process to show that it warranted
remand). 	In the absence of such evidence, the undersigned cannot say that Moore has suffered
harm.
5 In Moore’s prehearing brief, his attorney requested that the ALJ make inquiry and submit
interrogatories to any treating source whose medical records did not contain “specific residual
functional capacity 	opinion.” 	(ECF No. 8, p. 293). 	She further suggested that orthopedic and
neurological consultative examinations with “RFC opinion [were] required in the event” a finding
of disability were not issuable on the current medical evidence of record. (Id.). The ALJ carefully
delineated the respective duties with respect to record development and proving one’s residual
functional capacity, and, citing the pertinent regulations, he explained that the record had been
adequately developed and denied the requests. (Id., pp. 26-27).
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B. 	Step Two
Moore next argues that the ALJ erred at step two by failing to address whether Moore’s
left-knee impairment was severe. He further suggests “some concerns” about his testimony that
he was scheduled for foot surgery on January 12, 2023. (ECF No. 8, pp. 9-13). Moore asserts that
these were medically determinable impairments, but he acknowledges that the evidence arguably
did not show that these impairments more than minimally affected his ability to perform work
activities, or perhaps did not meet the duration requirement. 	(ECF No. 10, p. 10) (noting that
“there might have been an argument as to the second prong of the two-part test as to severity, or
possibly even whether [the knee impairment] met duration,” and only suggesting “some concerns”
with the foot impairment). He faults the ALJ for not saying so, however, and principally argues
that these impairments warranted greater limitations in his RFC. 	(Id.). 	The Commissioner
responds that Moore did not carry his burden of proving severity or duration.
At this step of the sequential evaluation process, the claimant must demonstrate that he has
an impairment or combination of impairments that is “severe” and which has lasted or is expected
to last at least 12 months. 	20 C.F.R. §§ 404.1520(a)(4)(ii), (c); § 404.1509. 	A medically
determinable impairment is “severe” if it more than minimally affects the claimant’s ability to
perform basic work activities. 	20 C.F.R. § 404.1520(c). 	The impairment “must result from
anatomical, physiological, or psychological abnormalities that can be shown by medically
acceptable clinical and laboratory diagnostic techniques” and “must be established by objective
medical evidence from an acceptable medical source.” 20 C.F.R. § 404.1521. And a diagnosis or
medical opinion is not sufficient. Id. If the impairment or combination of impairments “would
have no more than a minimal effect on the claimant’s ability to work,” then it will not satisfy the
threshold severity requirement at step two. Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007).
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An ALJ’s failure to determine the severity of an impairment or combination of impairments
that is supported by evidence in the record may be reversible error. See Nicola v. Astrue, 480 F.3d
885, 887 (8th Cir. 2007) (remanding because ALJ failed to properly apply the law where
undisputed evidence of record, including medical evidence, established IQ in range of borderline
intellectual functioning and no psychiatric review technique had been performed at any level of
review). However, an ALJ’s failure to characterize a claimant’s condition as severe at step two of
the sequential evaluation process does not always warrant remand, even when erroneous. 	Step
two requires a threshold determination of whether claimants have a severe impairment (or
combination of impairments) that meets the 12-month duration requirement and significantly
limits their ability to do basic work activities. 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii). If the
ALJ finds no severe impairments, the claimant is not disabled, and the analysis does not proceed
to the remaining steps. Id. If, however, a claimant does have a severe impairment or combination
of impairments—as the ALJ found to be the case here—the ALJ must consider the effects of both
the severe and non-severe impairments at the subsequent steps of the process, including the
determination of RFC between steps three and four. See 20 C.F.R. § 404.1523; SSR 96-8p, 1996
WL 374184, at 5. Thus, if the ALJ proceeds to consider and discuss the omitted impairment at
subsequent steps of the evaluative process, the error may be harmless. 	See Mark v. O’Malley,
2024 WL 340736, at 6-7 & n.3 (E.D. Mo. Jan. 30, 2024) (noting failure to find an impairment
severe at step two may be harmless where the ALJ continues with the sequential evaluation process
and considers all impairments, both severe and non-severe); Summers v. Kijakazi, No. 4:21-CV-
1390-ACL, 2023 WL 2707442, at 6 (E.D. Mo. Mar. 30, 2023) (same); Gibbs v. Kijakazi, No. 4:21-
CV-00127-KGB, 2022 WL 4299732, at 1-2 (E.D. Ark. Sept. 19, 2022) (same).
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In this case, the ALJ determined at step two that Moore had “severe” impairments of
degenerative disc disease at C6-7, and L4-5, carpal tunnel syndrome status post bilateral releases,
osteoarthritis of the right knee, depression, and anxiety. (ECF No. 8, p. 16). Although the ALJ
did not mention Moore’s left-foot hammertoe or his left-knee impairment at step two, he fully
addressed these impairments at Moore’s hearing and in the final decision, as previously discussed,
and he expressly accounted for them in the RFC determination. (Id., pp. 20-21, 22-24, 39, 45-46,
53-54).
The ALJ considered Moore’s new complaints of a burning sensation in the lateral aspect
of the knee in February 2022, describing his pain as frequently intense and a nuisance in his daily
activities, and stating that he had been using ibuprofen and BC powders for it. (ECF No. 8, pp.
20, 820). 	The ALJ noted the mixed—mostly mild—findings on examination: no effusion,
tenderness on the lateral joint line, good medial glide of the patella, a negative grind test, full
strength, sensation, and range of motion, albeit with a positive McMurray test. (Id., p. 20, 823).
X-rays of the left knee showed no significant abnormalities. (Id., p. 824). At a follow-up on March
30, 2022, Moore was noted to walk with a slight limp, had moderate tenderness at the medial
lateral joint line, and an MRI confirmed moderate effusion, meniscal tears, a Grade 1 MCL injury,
and Grade 3 cartilage loss in the medial compartment. (Id., pp. 20-21, 817, 825-827). The ALJ
noted that Moore underwent arthroscopy on April 28, 2022, and was thereafter noted to have no
complaints, did not request opioids, and was released to resume his activities without restriction.
(Id., pp. 21, 808, 811, 817). Although the ALJ did not explicitly say so with respect to this specific
impairment at step two, when formulating Moore’s RFC, he noted that the medical evidence,
overall, reflected minimal abnormalities during the relevant period. (Id., pp. 23-24). Further, he
did explicitly address Moore’s allegations and the objective medical evidence related to, inter alia,
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his left-knee surgery, which the ALJ said he had accommodated with limitations of occasional
climbing, kneeling, crawling, and balancing. (Id.).
The same is true of Moore’s hammertoe impairment. 	The ALJ considered Moore’s
complaints of a longstanding callus under his left foot and pain with standing and walking, but
relieved with rest. (ECF No. 8, p. 21). The ALJ noted that x-rays confirmed the presence of a
lesion under the fourth toe, and hammertoes. He considered records that show Moore successfully
pursued a surgical option after conservative measures had failed. He also considered, however,
that pain-management and primary-care records reflect Moore’s unremarkable examinations and
reports of excellent pain relief and increased activity, even after his encounters with the podiatrist.
(Id., pp. 21-22). 	When discussing Moore’s RFC, the ALJ acknowledged Moore had provided
evidence of treatment for left-foot pain and that the impairment was accounted for by the restriction
to light exertional work with postural limitations. (Id., p. 24).
Moore has not shown that his RFC would have been any more restrictive had the ALJ
expressly found at step two that his left-knee and left-foot afflictions were severe impairments, nor
has he shown any limitation from these impairments that is unaccounted for in his RFC. 	See
Buford v. Colvin, 824 F.3d 793, 796 (8th Cir. 2016) (“Although it is the ALJ’s responsibility to
determine the claimant’s RFC, the burden is on the claimant to establish his or her RFC.”) (internal
citations omitted). 	Accordingly, any error that the ALJ may have committed at step two
concerning his assessment of the severity of Moore’s left-foot and left-knee impairments was not
prejudicial as the ALJ discussed the impairments in subsequent steps and accommodated them in
his RFC assessment.
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C. 	Subjective Complaints
Moore next contends that the ALJ improperly discounted his subjective complaints of
disabling pain. 	(ECF No. 12, pp. 13-15). 	The ALJ must consider the claimant’s subjective
complaints in relation to all the evidence, including the claimant’s prior work record, the objective
medical evidence, and other evidence from both medical and non-medical sources. 	Polaski v.
Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984); see also Social Security Ruling (“SSR”) 16-3p,
“Evaluation of Symptoms in Disability Claims,” 2017 WL 5180304, at 4 (Oct. 25, 2017). 	The
ALJ’s evaluation of this evidence is guided by the consideration of several factors relevant to
symptom severity, such as the duration, frequency, and intensity of the symptoms; what
precipitates or aggravates them; the medications, treatments, or other methods that have been used
to alleviate them; and how the symptoms affect the claimant’s pattern of daily living. See Polaski,
739 F.2d at 1322; see also 20 C.F.R. § 404.1529(c). 	The ALJ may not discount a claimant’s
subjective complaints solely because they are not substantiated by the objective medical evidence;
however, the extent to which such evidence supports the degree of symptom severity alleged by
the claimant is a relevant factor to be considered. Polaski, 739 F.2d at 1322.
The ALJ considered Moore’s subjective complaints of disabling pain and dysfunction in
his back, neck, and knees, including sciatica and neck pain that radiated to his fingertips, that he
had been treated with epidural steroid injections, needed to have his knees replaced, had undergone
carpal-tunnel releases, knee arthroscopies, and was to undergo surgery for hammertoe repair. He
also considered Moore’s subjective complaints concerning his anxiety about working and his
treatment for both anxiety and depression by primary care, with a referral for therapy. (ECF No.
8, pp. 18-19, 22, 24, 42-49). 	The ALJ determined that Moore’s statements concerning the
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disabling intensity, persistence, and limiting effects of his symptoms were not entirely consistent
with the other evidence of record, as recounted in the preceding sections. (Id., p. 19).
Although Moore asserts that the ALJ “ignored much of the objective medical evidence
which corroborated [his] lower extremity complaints and stand/walk difficulties[,]” he identifies
no specific objective medical evidence which the ALJ ignored, or that corroborates the degree of
lower extremity complaints and stand/walk difficulties which he claims. 	(ECF No. 10, p. 14).
Rather, he points to his function report and asserts that the ALJ failed to note subjective statements
contained in the report, such as Moore’s use of a cane and brace when his knee swells, that “stairs
are difficult” for him, that kneeling is “almost impossible,” and that his knee swells when standing.
(Id.). 	These statements, standing alone, do not offer sufficient information to determine the
intensity, persistence, and limiting effects of Moore’s medically determinable impairments. See
20 C.F.R. § 404.1529(a) (“statements about your pain or other symptoms will not alone establish
that you are disabled”). Further, that the ALJ did not recite these statements does not mean he did
not consider them or was unaware of Moore’s testimony and statements. See Craig v. Apfel, 212
F.3d 433, 436 (8th Cir. 2000) (noting the failure to cite or discuss specific evidence does not
indicate that it was not considered). These statements, moreover, are not entirely consistent with
observations documented in the medical records, as the ALJ’s analysis shows.
Relevant to the duration, frequency, and intensity of Moore’s symptoms, as well as the
treatment and medications he used to alleviate them, the ALJ considered Moore’s longitudinal
treatment record, which contains objective signs and findings, and treatment notes documenting
not only the observations of Moore’s providers but also Moore’s own statements and behavior
relative to the nature of his symptoms and the effects of his treatment for, inter alia, pain,
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degenerative disc disease, osteoarthritis, carpal-tunnel syndrome, left-foot hammertoe, and
depression with anxiety. (ECF No. 8, pp. 19-24).
The ALJ considered that, despite Moore’s allegations of persistent, severe pain, records
indicate treatment that was generally conservative or minimally evasive, and efficacious, with no
emergency care required during the relevant period. 	(ECF No. 8, pp. 19-21, 23). 	The level of
treatment one requires is a factor that may undermine a claim of severe disabling conditions.
Swarthout v. Kijakazi, 35 F.4th 608, 612 (8th Cir. 2022). And improvement in one’s condition is
consistent with a determination that one is not disabled. See Lochner v. Sullivan, 968 F.2d 725,
728 (8th Cir. 1992).
Regarding his lumbar pain, which Moore said was worsened by walking long distances
and made it difficult to lift things, the ALJ considered that Moore did not require a second epidural
steroid injection after experiencing 60-70% relief from the first injection in March of 2019, and
regaining his desired activity level. (ECF No. 8, pp. 19, 21, 23). Similarly, the ALJ considered
that Moore underwent arthroscopy in April of 2022, after medical investigation of his left knee
pain revealed several anomalies in the joint. (Id., pp. 20-21, 23). Less than two weeks after this
surgery, Moore indicated he had no complaints, required no opioid medication for pain, and his
surgeon released him to return to full activities. (Id., pp. 21, 23). Regarding Moore’s neck pain
extending to his shoulders, the ALJ observed that following his first cervical epidural in April
2022, Moore reported that he had experienced excellent results, sustained for over five months,
and when the pain returned in October 2022, a second injection was administered for pain relief.
(Id., pp. 21, 24).
The ALJ also noted that Moore’s physical examinations throughout the relevant period
showed few, if any, abnormalities. (ECF No. 8, pp. 23-24, 311, 314 347, 358-359, 365, 371, 586-
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599, 607, 613, 619, 624-625, 638, 647-648, 657-658, 664-665, 672, 744-745, 749, 751-752, 756,
762-763, 782, 791, 794, 810, 816, 822, 839, 843, 860, 871). 	Normal examination findings are
generally not indicative of disabling pain. Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001).
The ALJ further considered that the medical records do not evince medical opinions from
any of Moore’s treating physicians concerning his ability to work, nor do they reflect any
restrictions placed on Moore by any treating physician. The lack of physician-imposed restrictions
militates against a finding of total disability. Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999).
Finally, the ALJ considered Moore’s daily activities. Moore reported he can tend to his
personal care without difficulty, prepare simple meals daily, perform household cleaning and
laundry, but these tasks took him all day. (ECF No. 8, pp. 22, 218, 235). He can drive a car, shops
in stores once or twice a week for food, and is able to pay bills, count change, handle a savings
account, and use a checkbook or money orders. (Id., pp. 48, 219, 236). During the day he watches
TV, reads, and sleeps when he can. 	(Id., 48, 237). 	The ALJ concluded that Moore’s activities
were not fully consistent with the degree of limitation he claimed, and that the extent to which he
experienced limitations from his impairments was not inconsistent with the assessed RFC. (Id., p.
22). 	See Ponder v. Colvin, 770 F.3d 1190, 1195 (8th Cir. 2014) (reported ability to perform light
housework, cook, do laundry, shop, watch TV, drive, leave the house alone may be inconsistent
with claim of disability).
The consistency of a claimant’s subjective complaints is primarily for the ALJ to decide,
not the courts. Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005). Here, the ALJ considered
relevant factors and gave good reasons, which are supported by substantial evidence, for partially
discounting Moore’s claimed symptoms. As such, the Court finds no error and defers to the ALJ’s
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evaluation of Moore’s subjective symptoms relative to the weight of the medical and other
evidence. See Guilliams v. Barnhart, 393 F.3d 798, 801-02 (8th Cir. 2005).
D. 	RFC Determination
Finally, Moore again argues that substantial evidence does not support the ALJ’s decision
because the record contains no medical opinion of Moore’s RFC. (ECF No. 10, pp. 15-17). As
previously discussed, there is no per se requirement that a claimant’s RFC be supported by a
medical opinion. Hensley, 829 F.3d at 932. And the record was fully and fairly developed. This
argument, therefore, has no merit.
Moore also argues that the medical evidence of record does not support a finding that he
can stand and walk for a total of six hours in an eight-hour workday with regular breaks. (ECF
No. 10, p. 16). 	Moore points to the record of his treatment for left foot pain, and two medical
records which reflect that he walked with a slight limp on March 30, 2022, had tenderness and
decreased range of motion in his left knee on that day; and at an encounter with his pain-
management provider five days later for neck pain, he was noted to have reported a gait disturbance
during his examination. 	(ECF No. 8, pp. 749, 817). 	As discussed previously, Moore was
experiencing left-knee impairments at this time, and they were arthroscopically repaired in April
2022. (Id., pp. 808, 817). Moore was released to full activities in May 2022. (Id.). This medical
evidence does not support reversal.
A claimant’s RFC is the most the claimant can do despite his physical or mental limitations.
See 20 C.F.R. § 404.1545(a)(1). It is the claimant’s burden to prove the RFC between steps three
and four. 	And the ALJ determines a claimant’s RFC “based on all of the relevant evidence,
including the medical records, observations of treating physicians and others, and an individual’s
own description of [his] limitations.” 	Schmitt v. Kijakazi, 27 F.4th 1353, 1360 (8th Cir. 2022)
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(quotation omitted). 	On review, the applicable standard “allows considerable latitude to
administrative decisionmakers” and “presupposes … a zone of choice within which the
decisionmakers can go either way, without interference by the courts.” Baker, 730 F.2d at 1150.
The question before this Court, then, is not whether the record might support greater limitations.
See Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006). 	The question is simply whether a
reasonable mind might accept the evidence as adequate on the whole to support the ALJ’s decision
that Moore is not disabled. If the decision is supported by substantial evidence on the record as a
whole, it must be affirmed even if substantial evidence also exists for the opposite decision, Long
v. Chater, 108 F.3d 185, 187 (8th Cir. 1997).
For reasons discussed here and in the preceding sections, the undersigned finds that the
ALJ properly performed the sequential analysis, and there is substantial evidence in the record to
support the determination that Moore was not disabled within the meaning of the Act.
IV. 	CONCLUSION
For the reasons and upon the authorities discussed above, it is RECOMMENDED that the
Commissioner’s decision be affirmed, and that Moore’s Complaint be dismissed with prejudice.
The parties have fourteen (14) days from receipt of this 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. 	The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 16th day of January 2025.
/s/	
Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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