Phifer v. Social Security Administration
Court Docket Sheet

Eastern District of Arkansas

4:2017-cv-00157 (ared)

NOTICE of Appearance by Howard David Olinsky on behalf of Tisha L Phifer

(Post 11/2015) Case 4:17-cv-00157-BSM-PSH Document 15 Filed 11/27/17 Page 1 of 2 AO 458 (Rev. 06/09) Appearance of Counsel UNITED STATES DISTRICT COURT for the Eastern District of Arkansas TISHA LEE PHIFER Plaintiff v.) Case No. 4:17-cv-00157) NANCY A. BERRYHILL, acting) Commissioner of Social Security)) Defendant APPEARANCE OF COUNSEL To: The clerk of court and all parties of record I am admitted or otherwise authorized to practice in this court, and I appear in this case as counsel for: Plaintiff, Tisha Lee Phifer. Date: s/Howard D. Olinsky Attorney’s signature Howard D. Olinsky, Esq. NY Bar #: 2044865 Printed name and bar number Olinsky Law Group Address 300 S. State St., Ste. 420, Syracuse, NY 13202 E-mail address Address2 315-701-5780 Telephone number holinsky@windisability.com FAX number Email Address Case 4:17-cv-00157-BSM-PSH Document 15 Filed 11/27/17 Page 2 of 2 CERTIFICATE OF SERVICE This is to certify that I have this day served counsel for the Defendant with Appearance of Counsel by electronically filing the foregoing with the Clerk of the Court by using the CM/ECF system which will send electronic notification of such filing to: STACEY ELISE MCCORD Assistant U.S. Attorney United States Attorney's Office ERIC B. TUCKER Social Security Administration Office of General Counsel/s/Howard D. Olinsky Name: Howard D. Olinsky, Esq. Bar Number: NY: 2044865 Attorney for: Plaintiff Law Firm Name: Olinsky Law Group Law Firm Address: 300 S. State St., Ste. 420 City State ZIP: Syracuse, NY 13202 Phone Number: 315-701-5780 Email Address: holinsky@windisability.com

PLAINTIFF'S BRIEF filed by Tisha L Phifer. Defendant Brief due by 2/9/2018

3 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION TISHA L. PHIFER,)) Plaintiff)) vs.) Civil Action No. 4:17-cv-00157-BSM-PSH) NANCY A. BERRYHILL) ACTING COMMISSIONER OF) SOCIAL SECURITY,)) Defendant.) PLAINTIFF'S APPEAL BRIEF I. STATEMENT OF ISSUES A. The ALJ failed to perform a psychiatric review technique, and develop the record with regards to Plaintiff's mental impairments. B. The ALJ's RFC finding is not supported by any medical assessment as the ALJ improperly rejected the opinion of Dr. Umerah. II. STATEMENT OF THE CASE Plaintiff, Tisha Lee Phifer ("Plaintiff"), filed applications for disability insurance benefits and Supplemental Security Income on November 25, 2013, alleging disability since July 31, 2013, due to a back injury. Transcript ("T") 162 191. Plaintiff's applications were denied initially on January 17, 2014, and on reconsideration on May 7, 2014. T 94, 104. After a hearing (32-50), the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. T 16-27. In his decision, the ALJ determined that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2018. T 19. The ALJ Also determined that Plain- tiff did not engage in substantial gainful activity since July 31, 2013, the alleged onset date. T 1 3 19. The ALJ found that Plaintiff had the severe impairment of degenerative disc disease. T 19. The ALJ concluded that the Plaintiff did not have an impairment of combination of impairments that meets or medically equals the severity of one of the listed impairments. T 14. The ALJ found Plaintiff had the residual functional capacity to perform sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a) except she would have to avoid constant, repetitive bending. T 20. Based on this RFC and vocational expert testimony, the ALJ determined that Plaintiff could perform her past relevant work as a telemarketing manager. T 25. The ALJ made an alter- native Step 5 finding, and determined that Plaintiff could perform work in the national economy as a telemarketer, and production assembler(lampshade). T 26. Thus, the ALJ found Plaintiff was not disabled. T 26. When the Appeals Council denied Plaintiff's request for review on Janu- ary 3, 2017, the decision of the ALJ became the final agency decision of the Commissioner. T 1- 3. Plaintiff was born in August 1980, making her 32 years old at the time of her alleged on- set date of disability. Plaintiff has less than a high school education and past work experience as a telemarketing manager, restaurant manager, and in sales at a distribution center. T 191. This court has jurisdiction pursuant to 42 U.S.C. § 405(g), 1383(c). a. Relevant Medical Evidence of Record On August 13, 2013, Plaintiff treated with Mike C. Umerah, M.D. T 275. Plaintiff reported being depressed, and having a lack of energy. T 275. Dr. Umerah noted lumbar tenderness and limited flexion, with paralumbar myofascial tenderness. T 275. On December 31, 2013, Plaintiff once again treated with Dr. Umerah. T 270. Dr. Umerah observed lumbar tenderness and limited flexion, as well as paralumbar myofascial 2 3 tenderness. T 270. Dr. Umerah prescribed two forms of painkillers, including oxycodone and OxyContin. T 270. Plaintiff treated with Dr. Umerah once more on January 28, 2014. T 293. Plaintiff reported a fall with left thigh strain and increasing back pain. T 293. Additionally, Plaintiff reported depressive episodes mixed with anxiety. T 293. Plaintiff treated with Dr. Umerah again on February 25, 2014. T 292. Plaintiff reported anxiety and depression, with insomnia. T 292. Dr. Umerah indicated lumbar tenderness with limited flexion, and paralumbar myofascial tenderness. T 292. Dr. Umerah noted that Plaintiff walked with a limp. T 292. On March 25, 2014, Plaintiff treated with Dr. Umerah, where he once again noted lumbar tenderness with limited flexion, and paralumbar myofascial tenderness. T 291. Dr. Umerah observed Plaintiff to walk with a limp. T 291. Plaintiff saw Dr. Umerah again for pain management on August 25, 2014. T 307. Dr. Umerah indicated that Plaintiff's lumbar back pain radiates into the right toe, and indicated abdominal tenderness, lumbar tenderness with limited flexion, and paralumbar myofascial tenderness. T 307. On November 18, 2014, Plaintiff returned to pain management with Dr. Umerah. T 304. Dr. Umerah indicated that Plaintiff was still in pain while on medications, and diagnosed her with lower back pain – motor vehicle accident, thoracic degenerative disc disease, GERD, anxiety/depression, and narcolepsy. T 304. Dr. Umerah indicated abdominal tenderness, lumbar tenderness with limited flexion, and paralumbar myofascial tenderness. T 304. Dr. Umerah completed a residual functional capacity assessment of Plaintiff's physical limitations on November 3, 2015. T 324. Dr. Umerah diagnosed Plaintiff with lower back pain 3 3 due to a motor vehicle accident, anxiety, depression, narcolepsy, and GERD. T 324. Dr. Umerah noted that Plaintiff had side effects from her medications such as dizziness, drowsiness, and constipation. T 324. Dr. Umerah opined that Plaintiff would constantly have symptoms severe enough to interfere with the attention and concentration required to perform simple work-related tasks, could walk for one block without rest or significant pain, could sit for 2 hours total in an eight- hour workday, could stand or walk for 1 hour total in an eight-hour workday, would need daily unscheduled breaks every 45 minutes, which would each last at least 50 minutes at a time, could only grasp, turn, and twist objects bilaterally for 25 percent of an eight-hour day, perform fine manipulation with the fingers bilaterally for 50 percent of an eight hour day, and reach bilaterally for 25 percent of an eight-hour day, and would be absent more than four times per month as a result of her impairments or treatments. T 324-25. b. Hearing Testimony Plaintiff testified to the following: She worked up until 2013, but had to quit because she was at the point where she was missing so many days, and could not do the hours. T 37. During the end of her time there, she had been calling in so much that she ended up missing weeks at a time. T 37. She is currently on the same pain management plan as she was when she was working last. T 37. Plaintiff tried physical therapy, but the positive effects did not last. T 39. She was allergic to the injections, which made her sick. T 39. She uses a TENS unit at night, but it only somewhat alleviates her pain. T 39. Plaintiff has fatigue, constant sleepiness, constipation, and heart burn due to the side effects of her medications. T 40. She takes naps throughout the day, and just does not have any energy. T 40. She has numbness in her right leg that extends through into the toes, of which 2 or 3 are completely numb. T 41. Medication does 4 3 not help her numbness. T 41. She has three children who help out with the housework and drive for her. T 42. She can sit for 35 to 40 minutes without switching positions due to the pain. T 43. About once a week Plaintiff will stay in bed or inside the house for the whole day due to pain. T 44. She cannot sleep through the night, and sometimes wakes up every hour on the hour due to the pain. T 45. The vocational expert ("VE") testified that a hypothetical person with the same educational background and work experience as Plaintiff, with the ALJ's stated RFC could perform Plaintiff's past relevant work as a telemarketing manager, and other work as a telemarketer, and lamp shade assembler. T 48. If such a person was unable to engage in sustained work activity for a full eight-hour day on a regular and consistent basis, they would be precluded from all work. T 49. III. ARGUMENT Pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), this Court may review the record to determine whether the Commissioner applied proper legal standards and whether substantial evidence supports the final agency decision to deny Plaintiff benefits. Substantial evidence means more than a scintilla. "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 400 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 229 (1938)). Substantial evidence is relevant evidence which a reasonable mind would accept as adequate to support the Commissioner's conclusion. In determining whether the existing evidence is substantial, the court must consider evidence that detracts from the Commissioner's decision as well as evidence that supports it. Gray v. Apfel, 192 F.3d 799, 802 (8th Cir. 1999). 5 3 A. The ALJ failed to perform a psychiatric review technique, and develop the record with regards to Plaintiff's mental impairments. The regulations require ALJs to assess a claimant's mental impairments pursuant to the psychiatric review technique ("PRT"). 20 C.F.R. §§ 404.1520a, 416.920a. The technique requires rating the claimant's degree of functional limitation in four broad functional areas: activities of daily living, social functioning, concentration, persistence and pace, and episodes of decompensation. 20 C.F.R. §§ 404.1520a(b)(2), (c)(2)-(4), 416.920a(b)(2), (c)(2)-(4). The first three functional areas can be rated either none, mild, moderate, marked, or extreme. Id. The ALJ's findings in assessing these functional areas are used to assess the severity of Plaintiff's impairment at Step Two, and to determine whether a listing is satisfied at Step Three. Id. The findings in the psychiatric review technique are then used in shaping the RFC. Id. Thus, Social Security Regulations explicitly state the findings in the PRT need be considered in the RFC. 20 C.F.R. §§ 404.1520a(d)(3), 416.920a(d)(3). The PRT must be documented in the ALJ's written decision, including the findings and conclusions based on the PRT. 20 C.F.R. §§ 404.1520a(e)(4), 416.920a(e)(4). SSR 96-8p provides that the mental RFC assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment than at steps 2 and 3. The ALJ must itemize various functions contained in the broad categories found in paragraphs B and C of the adult mental disorders listings in § 12.00 of the Listing of Impairments and summarized in the Psychiatric Review Technique. SSR 96-8p. 6 3 Here, the ALJ found that Plaintiff's anxiety and depression to be medically determinable impairments. T 20. Further, the record indicates both treatment and symptoms of these impairments. For example, Dr. Umerah's opinion revealed that symptoms from Plaintiff's impairments, including anxiety/depression, were severe enough to interfere with her attention constantly. T 324. Dr. Umerah treated Plaintiff for depression and anxiety, provided her with medications, and noted symptoms such as lack of energy and insomnia with depressive episodes. T 275, 291, 293. Further, Plaintiff reported, and the ALJ noted, problems with completing tasks without taking breaks. T 23. Additionally, Plaintiff reported being very tired all of the time, needing medication to help deal with stress, and being completely thrown off if her routine was broken. T 208, 213. Psychiatric review technique analysis is required to be conducted and documented at each level of the review process, including the ALJ level. Nicola v. Astrue, 480 F.3d 885, 887 (8th Cir. 2007) (citing 20 C.F.R. § 416.920a(a)-(e)). The ALJ's failure to perform this analysis is harmful, because it prevented proper evaluation of the extent and limiting effects of Plaintiff's mental impairments, and it unclear whether the ALJ considered the ways in which Plaintiff's mental impairments impact functional capacity. 7 3 Further, the ALJ should have developed the record concerning Plaintiff's mental impairments, as they were apparent throughout the record. Well-settled precedent confirms that the ALJ bears a responsibility to develop the record fairly and fully, independent of the claimant's burden to press her case. See Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004). Here, the ALJ failed to fully and fairly develop the record by ordering consultative examinations or consulting a medical expert to assess Plaintiff' s mental limitations. See 20 C.F.R. §§ 416.912(d), 416.920b(c)(1). The ALJ's failure to comply with the regulations and complete a psychiatric review technique analysis was error, as well as his failure to develop the record regarding Plaintiff's mental impairments. B. The ALJ's RFC finding is not supported by any medical assessment as the ALJ improperly rejected the opinion of Dr. Umerah. The ALJ wholly rejected Dr. Umerah's opinion of Plaintiff's physical limitations, finding the assessment "not persuasive," based on the lack of serious ongoing symptoms other than tenderness and some restrictions of motion. T 25. Pursuant to the treating physician rule, the medical opinion of the physician engaged in the primary treatment of an individual is given "controlling weight" if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record. 20 C.F.R. §§ 404.1527, 416.927; Prosch v. Apfel, 201 F.3d 1010, 1013-14 (8th Cir. 2000). Even if a treating physician's opinion is not given "controlling weight," it is still entitled to deference, and the ALJ must assess the following factors to determine how much weight to afford the opinion: the length of the treatment relationship, the frequency of examination by the treating physician, the medical evidence supporting the opinion with the record as a whole, the qualifications of the treating physician, and other factors tending to support or contradict the 8 3 opinion. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). "The notice of the determination or decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p (emphasis added). Where the ALJ fails to meet this standard, the case must be remanded. See Liles-Lawyer v. Astrue, 2012 U.S. Dist. LEXIS 16754, 174 Soc. Sec. Rep. Service 444, 2012 WL 443511 (W.D. Ark. 2012) (Remanding where "the record [did] not contain other medical assessments which are supported by better or more thorough medical evidence as required by SSR 96-2p[ ] in order to disregard a treating physician's opinion.) Here, the ALJ noted that Dr. Umerah found Plaintiff to have significant limitations according to his physical assessment. T 23. The ALJ went on, stating "[h]owever, there are no clinical findings in the record that corroborate this claim of extreme limitation. In fact, the medical evidence indicates that the claimant remains capable of performing sedentary work, with the additional limitations described above." T 23. This is an illogical assertion, when looking at Dr. Umerah's treatment notes. This is even more illogical considering that Dr. Umerah's treatment notes make up the entirety of the medical evidence, except for a few unrelated pages. Further, the ALJ cites to no medical evidence to discount Dr. Umerah's treating opinion, but merely compares it to Plaintiff's various activities of daily living. The ALJ evaluated Dr. Umerah's opinion and found that "his own medical records do not document any serious ongoing symptoms other than tenderness and some restrictions of motion." However, even if the ALJ had attempted to cite medical evidence that contradicts Dr. Umerah's opinion, it would be impossible, as it does not exist. 9 3 Dr. Umerah's treatment notes were consistent with the entirety of the record, as they make up the literal entirety of the record. Here, the only medical records that do not contain Dr. Umerah's treatment notes were two visits to the health and wellness clinic, which the ALJ even notes did "not appear to be connected to her back pain" although it was still included as a problem upon the visit. T 21, 293-300. Moreover, Dr. Umerah's notes were incredibly consistent. Dr. Umerah has observed lumbar tenderness, limited lumbar flexion, and paralumbar myofascial tenderness on every occasion since he began managing Plaintiff's pain in 2012. T 270, 271, 272, 273, 274, 276, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 304, 305, 307, 308, 309, 311, 313, 314, 320, 322. Thus, by virtue of their internal consistency, Dr. Umerah's treatment notes were also consistent with the medical evidence of record. Therefore, Dr. Umerah's treating source assessment is entitled to significant, if not controlling weight. Johnson v. Astrue, 628 F.3d 991, 994 (8th Cir. 2011) (treating physician's opinion is given controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence). Ultimately, the ALJ erred in discounting Dr. Umerah's opinion, and provided no legitimate reasons for rejecting his assessment. As the ALJ failed to point to any evidence which tends to contradict his opinion, this matter should be remanded so Dr. Umerah's opinion may be afforded significant, if not controlling, weight. Further, the ALJ appears to have relied entirely on his selective interpretation of the medical evidence in determining Plaintiff's RFC. Here, the ALJ "played doctor" by improperly substituting his own opinion in place of the physician's medical opinion evidence. Ness v. Sullivan, 904 F.2d 432, 435 (8th Cir. 1990) (holding the "ALJ must not substitute his opinions for those of the physician"); Pate-Fires v. Astrue, 564 F3d 935, 946-47 (8th Cir. 2009) (noting 10 3 that the ALJ "playing doctor" is a practice forbidden by law) (citing Rohan v. Chater, 98 F.3d 966 (7th Cir. 1996)). Despite finding that the medical evidence did not support Dr. Umerah's limitations, and that the evidence reveals that Plaintiff could perform sedentary work, he identified none of this medical evidence. T 23. Not only did the ALJ fail to offer any medical evidence that supports his lay reasoning, but he also failed to acknowledge that the entirety of the medical evidence is contrary to this reasoning. An ALJ may not simply draw his own inferences about a claimant's RFC from medical reports. Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004); Ness, 904 F.2d at 435; Pate-Fires, 564 F3d at 946-47; Rohan, 98 F.3d at 966. Thus, the ALJ further erred by impermissibly playing doctor while rejecting the highly supported opinion of Dr. Umerah. Finally, if Defendant attempts to argue that the ALJ relied on the State agency opinions, this would also be error. The only medical functional assessments of record that could provide support for the ALJ's RFC finding are the assessments of the State agency medical consultants. Here, the ALJ states that he "has considered the opinion of the state agency medical consultant pursuant to Social Security Ruling 96-9p. However, the record has been supplemented with testimony and additional medical evidence." T 25. The ALJ continues on to state that his RFC is consistent with the record as a whole. The ALJ does not give these opinions weight, and appears to discount them based on the supplemental testimony and additional medical evidence. T 25. However, the unexplained weight given to the State agency consultants was error, as in addition to considering all of the evidence, the ALJ must build "an accurate and logical bridge" between the evidence and his decision. St. Clair v. Colvin, No. 2:12-04250-DGK-SSA, 2013 WL 4400832, at *2 (W.D. Mo. Aug. 14, 2013) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996)). 11 3 Notwithstanding this unexplained reasoning, the ALJ's reliance on these opinions would also constitute error as these assessments were stale, being completed in the very beginning of 2014. T 57, 65. This means that the State agency physicians did not have access to many of Dr. Umerah's treatment notes, or most importantly, his disabling physical assessment. "The brief, conclusory opinions of the non-examining physicians provide little substance and do not equate with 'better or more thorough medical evidence.'" Gillette v. Barnhart, 291 F. Supp. 2d 1071, 1077 (D.N.D. 2003). As the Eighth Circuit has held, the assessments of State agency medical consultants cannot constitute substantial evidence if they are not based upon a full record. Frankl v. Shalala, 47 F.3d 935, 938 (8th Cir. 1995); see also Sultan v. Barnhart, 368 F.3d 857, 863 (8th 2004) (opinions of non-examining state agency consultants are entitled to little weight in evaluating disability); Gilette, 291 F. Supp. 2d at 1077 ("It is important to note that the opinions of non-examining physicians ordinarily do not constitute substantial evidence on the record as a whole."). This is certainly not a case where the State agency assessments "are supported by better or more thorough evidence" than the treating physician. See Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997). The ALJ's RFC assessment is based upon a selective view of the medical evidence of record, from which he drew inferences about Plaintiff's RFC with no supporting medical assessment. Therefore, substantial evidence of record does not support the ALJ's RFC finding. V. CONCLUSION For the foregoing reasons, it is respectfully requested that the final agency decision be vacated and that this matter remanded to the agency for de novo hearing and new decision. December 29, 2017 Respectfully submitted, /s/ Howard D. Olinsky Howard D. Olinsky, Esq. 12 3 Olinsky Law Group Attorneys for Plaintiff 300 South State Street, Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Fax: (315) 701-5781 holinsky@windisability.com CERTIFICATE OF SERVICE I hereby certify that on December 29, 2017, I electronically filed the foregoing with the Clerk of the District Court using the CM/ECF system, which sent notification of such filing to Eric B. Tucker, Esq., an ECF registrant: /s/ Howard D. Olinsky Howard D. Olinsky, Esq. 13

DEFENDANT'S BRIEF filed by Social Security Administration.

6 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION TISHA PHIFER,)) Plaintiff,)) vs.) Civ. No. 4:17-cv-00157-BSM-PSH) NANCY A. BERRYHILL,) Acting Commissioner of the) Social Security Administration,)) Defendant.) DEFENDANT'S RESPONSE BRIEF Plaintiff brought this action pursuant to 42 U.S.C. § 405(g), for review of a final decision of the Commissioner of the Social Security Administration denying her claims for a period of disability and disability insurance benefits under Title II of the Social Security Act (the Act) and for supplemental security income (SSI) benefits under Title XVI of the Act. The Commissioner requests that this Court affirm the Administrative Law Judge's decision that Plaintiff was not disabled. The relevant period for this case is from: July 31, 2013, Plaintiff's alleged disability onset date, through January 26, 2016, the date of the Commissioner's final decision I. ISSUE Plaintiff argues that this Court should remand this case because: (1) the ALJ erred in not completing a psychiatric review technique form (PRTF) when evaluating her mental impairments and did not properly develop the record with regards to her mental impairments, and (2) substantial evidence does not support the ALJ's residual functional capacity (RFC) finding due to the fact that the ALJ improperly weighed the medical opinion evidence (Pl.'s Br. at 6-12). Plaintiff concedes all other issues to the Commissioner. See Hacker v. Barnhart, 459 F.3d 934, 937 n.2 (8th Cir. 2006) (holding issues not raised in the claimant's brief were waived). 6 II. STATEMENT OF THE CASE Plaintiff protectively filed her Title II and Title XVI applications on November 25, 2013, alleging disability since July 31, 2013, due only to a back injury (Tr. 17, 52, 68, 162, 191). Plaintiff was born in 1980; therefore, she was a younger individual throughout the relevant period (Tr. 25, 162). See 20 C.F.R. § 404.1563. Plaintiff completed the eleventh grade in 1997 and has worked as a warehouse worker, a telemarketer manager, and a waitress/restaurant worker (Tr. 25, 192). Plaintiff testified that she resigned from her last job in July 2013 due to back pain (Tr. 37). However, since her alleged disability onset date, Plaintiff has been active without many problems with her personal care and caring for her three children, who were 10, 14, and 15 years old at the beginning of the relevant period (Tr. 42-43, 207-13, 226). Plaintiff explained that she prepared meals, washed dishes, did household chores, shopped, helped her kids with their homework, and watched her kids do their school activities (Tr. 207-13, 226). On January 26, 2016, after considering "all the evidence," an ALJ issued an unfavorable decision (Tr. 14-27). The ALJ considered Plaintiff's testimony, her application materials, and the treating, examining, and/or non-examining physicians' opinions and related medical records and found that Plaintiff was not disabled (Tr. 17-27). The ALJ found that Plaintiff's back condition was a severe impairment, but the ALJ determined that Plaintiff's impairments did not meet or equal the severity of any of the listed impairments in Appendix 1 (Tr. 19-20). In making these findings, the ALJ specifically found that Plaintiff's anxiety and depression were non-severe impairments (Tr. 19-20). Next, the ALJ concluded that Plaintiff had a residual functional capacity (RFC) for a wide range of sedentary work activity (Tr. 20-25). Additionally, the ALJ obtained vocational expert assistance and determined that Plaintiff could perform her past relevant work as a telemarketer manager, as well as other work existing in 2 6 significant numbers in the national economy (Tr. 25-26). Thus, the ALJ found that Plaintiff was not disabled (Tr. 26-27). Plaintiff requested review of the ALJ's decision, but the Appeals Council denied his request (Tr. 1-13). Plaintiff now appeals the Commissioner's final decision. III. ARGUMENT Substantial evidence supports the Commissioner's decision, and the Court should affirm it. A. Judicial standard of review The role of the court under 42 U.S.C. § 405(g) is to determine whether there is substantial evidence in the record to support the Commissioner's decision, and not to reweigh the evidence or examine the issues de novo. See Loving v. Dept. of Health & Human Servs., 16 F.3d 967, 969 (8th Cir. 1994); Sykes v. Bowen, 854 F.2d 284, 285 (8th Cir. 1988). The court must affirm the Commissioner's findings if substantial evidence supports them. See Richardson v. Perales, 402 U.S. 389, 390 (1971). Substantial evidence is more than a scintilla but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. at 401. The court may not reverse an ALJ's decision merely because substantial evidence could support a different conclusion. See Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995). In fact, if it is possible to draw two inconsistent positions from the evidence, and one of those positions represents the agency's findings, the court must affirm the decision. Cruze v. Chater, 85 F.3d 1320, 1323 (8th Cir. 1996); Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992). In this case, substantial evidence supports the ALJ's decision; therefore, the Court should affirm the Commissioner's decision. Additionally, the Court will consider whether the Commissioner's decision comports with the relevant legal standards. See Mason v. Barnhart, 406 F.3d 962, 964 (8th Cir. 2005). But a remand for legal error is only appropriate when the error was harmful. See Robinson v. 3 6 Sullivan, 956 F.2d 836 (8th Cir. 1992); Reynolds v. Chater, 82 F.3d 254 (8th Cir. 1996); Karlix v. Barnhart, 457 F.3d 742 (8th Cir. 2006). And, the burden of showing that an error is harmful falls on Plaintiff, the party attacking the Commissioner's decision. Shinseki v. Sanders, 129 S.Ct. 1696, 1706 (2009) (citing Nelson v. Apfel, 131 F.3d 1228, 1236 (7th Cir. 1997)); see also Jimenez v. Astrue, 2010 WL 2653361, at *3 (10th Cir. June 16, 2010). B. Burden of proof It is well-settled that Plaintiff has the burden of proving her disability by establishing a physical or mental impairment lasting at least twelve months that prevents her from engaging in any substantial gainful activity. See Ingram v. Chater, 107 F.3d 598, 601 (8th Cir. 1997); Sykes, 854 F.2d at 285; 42 U.S.C. § 423(d)(1)(a). Moreover, Plaintiff shoulders the dual burden of production and persuasion through step four of the sequential evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000) (burden of proof rests with the claimant at step four). More specifically, the burden of production and persuasion rests squarely on the claimant to prove disability and to demonstrate RFC. See Ingram, 107 F.3d at 601; see also Young, 221 F.3d at 1069 n.5 (8th Cir. 2000) (RFC is determined prior to step four, where the burden of proof rests with the claimant); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). Thus, while the burden of production shifts to the Commissioner at step five, the ultimate burden of persuasion to prove disability and to demonstrate RFC remains with the claimant. Charles v. Barnhart, 375 F.3d 777, 782 n.5 (8th Cir. 2004); Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). 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." See 42 U.S.C. § 423(d)(3). A five- step "sequential evaluation" process for determining disability is set out in the Commissioner's 4 6 regulations.1/ See 20 C.F.R. § 404.1520. Here, the ALJ properly determined at step five that Plaintiff was not disabled (Tr. 28-43). C. The ALJ properly determined that Plaintiff's mental conditions were not severe. Contrary to Plaintiff's arguments, this Court should not remand this case, as her assertions are without merit (Pl.'s Br. at 6-8). Specifically, Plaintiff argues that this Court should remand this case because the ALJ did not fully and fairly develop her mental impairments or properly completed a PRTF when evaluating her anxiety and depression (Pl.'s Br. at 6-8). Here, the ALJ fully and fairly developed the record in this case. The ALJ is only required to develop a reasonably complete record, which he did in this case. See Clark v. Shalala, 28 F.3d 828, 830 (8th Cir. 1994). Moreover, there is no reversible error in this case when the ALJ did not complete the PRTF analysis. See Cuthrell v. Astrue, 702 F.3d 1114, 1118 (8th Cir. 2013) (Eighth Circuit recognizes harmless error for not completing PRTF analysis when mental impairment is not severe). Accordingly, this Court should dismiss Plaintiff's argument. As for her duty to develop argument, Plaintiff is mistaken that the ALJ did not properly develop the record. While the ALJ has a basic duty to develop a reasonably complete record, Plaintiff still has the burden of proving disability. See Baumgarten v. Chater, 75 F.3d 366, 368 (8th Cir. 1996). In fact, the regulations clearly state that the claimant has the responsibility to provide medical evidence: "You (claimant) must provide medical evidence showing that you have an impairment and how severe it is during the time you say that you are disabled." 20 1/ The Act's regulations require the Commissioner to apply a five-step sequential evaluation process to each claim for disability benefits: (1) Is the claimant currently working? (2) Does the claimant have a severe impairment? (3) Does the impairment meet or equal an impairment listed in Appendix 1? (4) Does the impairment prevent the claimant from doing her past relevant work? (5) Does the impairment prevent the claimant from doing any other work? See 20 C.F.R. § 404.1520. 5 6 C.F.R. § 404.1512. It was also Plaintiff's responsibility to present the strongest case possible. Thomas v. Sullivan, 982 F.2d 255, 260 (8th Cir. 1991). Thus, the duty to develop the record does not require the ALJ to function as Plaintiff's representative; rather, the ALJ is responsible for developing a reasonably complete record. See Clark, 28 F.3d at 830-31. Here, the record contains sufficient evidence from Plaintiff's application materials, her hearing testimony, her treatment notes, and the State agency physicians' opinions, so further development was unnecessary. Absent unfairness or prejudice, reversal for failure to develop the record is not warranted. Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995). While Plaintiff complains in her brief that the ALJ did not properly develop the record because he did not obtain an opinion from consultative mental examiner or medical expert, Plaintiff was represented at the administrative hearing, and she did not request that the ALJ obtain any addition medical evidence or opinions (Tr. 34-65). In fact, at the beginning of the hearing, Plaintiff's attorney indicated that the record was complete (Tr. 34). Moreover, at the end of the hearing, Plaintiff's attorney had no further questions and did not ask for further development of the record. Again, it was Plaintiff's responsibility to present the strongest case possible. Thomas, 982 F.2d at 260. This Court should not allow Plaintiff to submit minimal evidence of her alleged impairments and then fault the ALJ for improperly developing the record. See Breedlove v. Callahan, No. 97-7024, 1997 WL 572145, at *1 (10th Cir. Sept. 8, 1997) (court should not send ALJ on "fishing expedition" for evidence). All in all, the ALJ is not required to obtain any specific medical opinion when determining Plaintiff's functional limitations. See Myers v. Colvin, 721 F.3d 521, 526-27 (8th Cir. 2013); see also Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. July 18, 2016) (ALJ not required to obtain a medical opinion from treating physician or consultative examiner). Here, the 6 6 ALJ made an informed decision, as the record contains Plaintiff's application materials, her hearing testimony, treatment and examining records, and the State agency physicians' opinions (Tr. 32-329). In fact, the ALJ is not required to order a consultative mental examination; he simply has the authority to do so as necessary to make an informed decision. See Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir. 1989); see also Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004)(ALJ has discretion to order a consultative evaluation if there is not adequate evidence for determining the merits of a disability claim). In short, the Eighth Circuit in the Mabry case recognized that the interpretation of a physician's findings is a factual matter left to the ALJ's authority and found that the ALJ properly determined Claimant's functional limitations based on the State agency physicians' opinions and Claimant's treatment records. See Mabry v. Colvin, 815 F.3d 386, 390-91 (8th Cir. 2016). Accordingly, this Court should dismiss Plaintiff's argument. Furthermore, this Court should also dismiss Plaintiff's suggestion that the ALJ committed reversible error when he did not complete a formal PRTF analysis in his decision when evaluating her anxiety and depression (Pl.'s Br. at 6-8). While a PRTF analysis is required in evaluating mental impairments pursuant to 20 C.F.R. § 404.1520a(a), it is not automatically reversible error if the ALJ does not complete such an analysis. See Cuthrell, 702 F.3d at 1118(citing Cakora v. Barnhart, 67 Fed.Appx. 983, 985 (8th Cir. 2003) (per curiam) (harmless error when no sufficient evidence that the mental impairment was severe)). Here, the ALJ found that Plaintiff had a severe impairment but found that her anxiety and depression were non-severe based on his review of all the evidence (Tr. 17-20). All in all, step two of the sequential evaluation is a "preliminary screening device to deny benefits to claimants with impairments so minimal that they could under no circumstances have a serious impact on the ability to work." Hansen v. Heckler, 783 F.2d 170, 174 (10th Cir. 1986). But after a 7 6 claimant clears the step two preliminary hurdle, the classification of an impairment as severe or non-severe carries no meaningful legal significance. 20 C.F.R. § 404.1545(e); SSR 96- 8p. In Sumners, the District Court for the Western District of Missouri recognized that the only issue at step two is whether the claimant has at least one severe impairment, and if he does the ALJ proceeds to the other steps of the sequential evaluation process. Sumners v. Astrue, No. 09- 5065, 2010 WL 2955367, at *2 (W.D.Mo. July 23, 2010), citing Oldham v. Astrue, 509 F.3d 1254, 1256 (10th Cir. 2007) (all ALJ was required to do at step two was identify that claimant had at least one severe impairment); see also Dray v. Astrue, 353 Fed.Appx 147, 149 (10th Cir. 2009) ("a claimant is required to establish, and an ALJ is required to find, only one severe impairment."). The ALJ, in the instant case, found that Plaintiff had at least one severe impairment, and then properly continued the sequential evaluation process and determined that Plaintiff could perform a wide range of sedentary work activity (Tr. 19-25). Flaws in an ALJ's step two analysis are generally harmless error in cases in which there has been a full assessment of an individual's capacity to perform work activity. See Johnston v. Apfel, 210 F.3d 870, 874 (8th Cir. 2000). In the instant case, any error in not completing a PRTF analysis should be considered harmless. While the ALJ recognized that Plaintiff had been diagnosed with and treated for depression and anxiety, he could not find any severe mental impairment (Tr. 19-25). A diagnosis of a mental impairment does not establish it as a severe impairment. See Gowell v. Apfel, 242 F.3d 793, 797 (8th Cir. 2001) (depression not severe despite several doctors' diagnoses); see also Spradling v. Chater, 126 F.3d 1072, 1074 (8th Cir. 1997) (mental impairments not severe despite diagnoses); Gates v. Astrue, 627 F.3d 1080, 1082 (8th Cir. 2010) (depression not severe even though prescribed medication). Overall, a diagnosis of a mental impairment does not establish a 8 6 disabling impairment or even a significant impact on that person's functional capacity. See Bernal v. Bowen, 851 F.2d 297, 301 (10th Cir. 1988). Rather, the focus should be on any functional limitations, instead of the diagnosis. See Trenary v. Bowen, 898 F.2d 1361, 1364 (8th Cir. 1990). Here, the ALJ did just that in finding that Plaintiff's anxiety and depression did not significantly limit her basic work activity during the relevant period (Tr. 19-25). In short, when Plaintiff applied for disability, she did not allege any mental impairments or related limitations (Tr. 191, 194, 217-18). Rather, Plaintiff indicated that she was disabled due to a back injury (Tr. 191). Likewise, at her administrative hearing, Plaintiff indicated that her back injury caused her to be unable to work (Tr. 37-38). All in all, Plaintiff confirmed that her primary care physician had treated her back condition and anxiety/depression with medication but admitted that she had not required any mental health treatment (Tr. 38-40, 46). The need for only conservative treatment contradicts allegations of disability. See Robinson v. Sullivan, 956 F.2d 836, 840 (8th Cir. 1992). Furthermore, Plaintiff's disability interviewer observed that she had no difficulty with concentration, coherency, understanding, answering, or talking (Tr. 188). And, Plaintiff even acknowledged that she followed instructions "very well"; had no problems getting along with others; could pay attention "anytime" and finish what she started; and could handle stress mostly well since taking medication (Tr. 213-13). Impairments that are controllable or amenable to treatment do not support a finding of total disability. See Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000); see also Wilson v. Chater, 76 F.3d 238, 241 (8th Cir. 1996) (conditions controlled with treatment are not considered disabling). While Plaintiff's primary care physician did prescribe Plaintiff medication for her anxiety and depression, her progress notes do not point to any significant problems caused by these mental impairments (Tr. 270-322). In fact, in 2013, Plaintiff's impairments were "doing well" 9 6 with medication (Tr. 274). Moreover, in 2014, Plaintiff's anxiety and depression were "stable" on medication (Tr. 292). Similarly, Plaintiff's impairments were "doing well" in 2015 (Tr. 313). A lack of subjective complaints to a treating source detracts from a claimant's allegation of a disabling impairment. See Kelly v. Chater, 62 F.3d 335, 337 (10th Cir. 1995). However, the ALJ did just consider Plaintiff's progress notes, as he also considered the State agency physicians' opinions in evaluating all the evidence (Tr. 17-25). Here, Dr. Winston Brown, a State agency physician, recognized that Dr. Mike Umerah had treated Plaintiff for anxiety and depression, but he found that these impairments were not severe (Tr. 74-77). State agency physicians are "highly qualified" experts in evaluation of disability claims and their opinions should be treated as expert opinion evidence, which the ALJ did in this case (Tr. 25). See SSR 96-6p and 20 C.F.R. § 404.1527(f). See Ostronski v. Chater, 94 F.3d 413, 417 (8th Cir. 1996) (reviewing physician's opinion can support finding that claimant is not disabled). For all the foregoing reason, this Court should find no reversible error and dismiss Plaintiff's argument. D. Substantial evidence supports the ALJ's RFC finding, as the ALJ properly weighed the medical opinion evidence. In the present case, the ALJ fully complied with the regulations and relevant case law when he considered both the medical and non-medical evidence before determining that Plaintiff had an RFC for a restricted range of sedentary work activity (Tr. 17-25). See Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995). The RFC assessment is an administrative finding that is reserved solely to the ALJ and is based upon the totality of the evidence of record, which the ALJ did in this case. See SSR 96-5p; 20 C.F.R. § 404.1545(a). Again the Eighth Circuit has recognized that the interpretation of a physician's findings is a factual matter left to the ALJ's authority and found that the ALJ could properly determined the claimant's functional limitations based on the State agency physicians' opinions along with the claimant's treatment records. See 10 6 Mabry v. Colvin, 815 F.3d 386 (8th Cir. 2016). Here, Plaintiff argues that the ALJ's RFC finding is inappropriate because the ALJ did not properly consider the medical opinion evidence (Pl.'s Br. at 13-21). In short, Plaintiff argues that the ALJ should have great weight to Dr. Mike Umerah's November 2015 checklist opinion and less weight to the State agency physicians' opinions (Pl.'s Br. at 8-12). This argument is meritless, and this Court should dismiss it. As for Plaintiff's argument that the RFC finding is not supported by substantial evidence because the ALJ improperly weighed the medical opinion evidence, the Commissioner respectfully submits that it is the ALJ's function to resolve conflicts among the various medical opinions, and this Court should reject Plaintiff's attempt to reweigh the evidence. See Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir. 2007); see also Loving v. Dept. of Health & Human Servs., 16 F.3d 967, 969 (8th Cir. 1994). While Plaintiff may disagree with the ALJ's consideration of the medical opinion evidence, this Court should not seek to reweigh the evidence (Pl.'s Br. at 81- 12). See Flynn v. Chater, 107 F.3d 617, 620 (8th Cir. 1997) (reviewing court neither reweighs the evidence nor reviews the record de novo). Overall, the ALJ properly did not assign "controlling weight" to any physician's opinion (Tr. 20-25). Instead, the ALJ could not find either Dr. Umerah's opinion or the State agency physicians' completely persuasive (Tr. 25, 56-57, 89-91, 324-25). All in all, the ALJ found that Plaintiff was slightly restricted than the opinions of the State agency physicians and less restricted than Dr. Umerah's opinion (Tr. 20). In doing so, the ALJ provided valid reasons for discounting Dr. Umerah's opinion, contrary to Plaintiff's argument (Pl.'s Br. at 8-12; Tr. 20-25). Again, the RFC is an administrative finding that is reserved solely to the ALJ. See SSR 96-5p; 20 C.F.R. § 404.1545(a). In the instant case, the ALJ was well within a reasonable "zone of 11 6 choice" in not adopting any doctor's opinion. See Owen v. Astrue, 551 F.3d 792, 798 (8th Cir. 2008). In short, substantial evidence supports the Commissioner's findings. Again, substantial evidence is more than a scintilla but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971). The Court may not reverse an ALJ's decision merely because substantial evidence could support a different conclusion. See Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995). For all the foregoing reasons, this Court should affirm the Commissioner's final decision. Here, the ALJ thoroughly discussed the evidence of record and weighed the medical opinion evidence carefully (Tr. 20-25). In fact, at the outset, the ALJ stated in the hearing decision that he considered the opinion evidence in accordance with the requirements of 20 C.F.R. § 404.1527 and the Social Security Rulings (Tr. 20). The Eighth Circuit has identified a presumption that the ALJ did what he claimed to do. See, e.g., Wilburn v. Astrue, 626 F.3d 999, 1003 (8th Cir. 2010) (finding that when an ALJ states he would perform a duty with regard to a claimant's case, it is presumed that the ALJ has discharged his duty) (citing United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926) ("The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.")). However, the ALJ did not stop here. In fact, contrary to Plaintiff's argument, the ALJ provided good reasons to discount Dr. Umerah's November 2015 checklist opinion and the ALJ's RFC finding is supported by substantial evidence. In discounting Dr. Umerah's opinion, the ALJ fully considered his opinion along with his own progress notes, the objective medical evidence, Plaintiff's activities of daily 12 6 living, and the other physicians' opinions and could not find it "persuasive" (Tr. 20-25). In doing so, the ALJ properly recognized that his opinion was inconsistent with the objective medical findings as well as his own progress notes and other physicians' opinions (Tr. 25). Even a treating physician's opinion is entitled to less weight when it is inconsistent or contrary to the medical evidence as a whole. See Halverson v. Astrue, 600 F.3d 922, 930 (8th Cir. 2010); see also Juszczyk v. Astrue, 542 F.3d 626, 632 (8th Cir. 2008) (ALJ properly rejected treating physician's opinion that was inconsistent with his own treatment notes, objective testing, and other medical evidence in the record). In fact, conclusory, checklist opinions are entitled to little weight in the evaluation of a disability. See Taylor v. Chater, 118 F.3d 1274, 1279 (8th Cir. 1997) (checklists); see also Chamberlain v. Shalala, 47 F.3d 1489, 1494 (8th Cir. 1995) (weight given to even a treating physician's opinion is limited if the opinion was conclusory). As a matter of fact, in a very recent case, the Eighth Circuit explained that the Commissioner may discount a treating physician's opinion when it is internally inconsistent or conclusory. See Thomas v. Berryhill, __ F.3d __, 2018 WL 704215 at *1-2 (8th Cir. February 5, 2018) (citing Chesser v. Berryhill, 858 F.3d 1161, 1164–65 (8th Cir. 2017). In short, in the Thomas case, the court found no error in discounting a treating physician's opinion when it consisted of "nothing more than vague, conclusory statements—checked boxes, circled answers, and brief fill-in-the-blank responses." For the same reason, this Court should find no error in the ALJ, in the instant case, discounting Dr. Umerah one and half page checklist opinion (Tr. 25, 324-25). In other cases involving back problems, the Eighth Circuit found that the record supported a finding that the claimant could perform light work even though the claimant had a disc 13 6 herniation. See Lawrence v. Chater, 107 F.3d 674, 676-77 (8th Cir. 1997); see also Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993) (evidence of degenerative disc disease and bulging disc does not support finding of disability). The mere fact that Plaintiff may have some discomfort while working does not mandate a finding of disability. See Johnson v. Chater, 108 F.3d 942, 947 (8th Cir. 1997). Here, as noted above, the ALJ gave good reasons for discounting Dr. Maglothin's checklist opinion. Again, an ALJ may discount a treating physician's opinion that is inconsistent with his own treatment notes, objective testing, and other medical evidence in the record. See Juszczyk, 542 F.3d at 632. Furthermore, in evaluating this case, the ALJ properly considered Plaintiff's activities and the State agency physicians' opinions (Tr. 35-41). Overall, Plaintiff remained active during the relevant period, as he had no problems with his personal care and he cared for his three young children, shopped, prepared meals, and did household chores (Tr. 35-41, 57-59, 302-06). Activities considered with other evidence can support a finding of not disabled. See Gray v. Apfel, 192 F.3d 799, 804 (8th Cir. 1999). As for the State agency physicians' opinions, the ALJ properly considered Dr. Gardner's and Dr. McCarron's opinions that Plaintiff could perform a wide range of light work but assigned Plaintiff greater functional restrictions based on the record as a whole (Tr. 39-40, 90-92, 127-29). State agency physicians are "highly qualified" experts in evaluation of disability claims and their opinions should be treated as expert opinion evidence, which the ALJ did in this case (Tr. 39-40). See SSR 96-6p and 20 C.F.R. § 404.1527(f). It is 14 6 proper for ALJ to consider a State agency physician's opinion with other medical evidence. See Casey v. Astrue, 503 F.3d 687, 694 (8th Cir. 2007); see also Ostronski v. Chater, 94 F.3d 413, 417 (8th Cir. 1996) (reviewing physician's opinion can support finding that claimant is not disabled). Again, the ALJ, in the instant case, was within a reasonable "zone of choice" in not adopting any one doctor's opinion. See Owen, 551 F.3d at 798 (ALJ's decision should not be disturbed merely because the court might have reached different conclusion). In sum, the ALJ provided valid reasons for discounting Dr. Maglothin's opinion, and the Court should not disturb the Commissioner's decision. As stated above, the RFC assessment is based upon the totality of the evidence of record. See SSR 96-5p. Taken as a whole, the evidence of record indicates that Plaintiff had severe impairments that caused some limitations in his ability to perform work activity. However, those limitations were not so severe as to be disabling. The ALJ's RFC determination was consistent with the credible medical evidence of record, and the ALJ took into account Plaintiff's subjective complaints. Accordingly, substantial evidence supports the ALJ's RFC, and this Court should dismiss Plaintiff's RFC arguments and affirm the ALJ's decision. IV. CONCLUSION Substantial evidence of record supports the Commissioner's decision that Plaintiff was not disabled within the meaning of the Act. The ALJ properly determined that Plaintiff could perform other work existing in significant numbers in the national economy. Therefore, the Commissioner requests that this Court AFFIRM the ALJ's administrative decision. 15 6 Respectfully submitted, CODY HILAND United States Attorney Eastern District of Arkansas STACEY E. McCORD Assistant U.S. Attorney Eastern District of Arkansas TRACI B. DAVIS Acting Regional Chief Counsel Social Security Administration /s/ Eric B. Tucker ERIC B. TUCKER Special Assistant U.S. Attorney Texas Bar # 00791827 Social Security Administration Office of the General Counsel 1301 Young Street, Suite A702 Dallas, TX 75202-5433 214.767.4103 fax: 214.767.9228 eric.tucker@ssa.gov CERTIFICATE OF SERVICE I hereby certify that on February 1, 2018 I electronically transmitted the attached document to the Clerk of the Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to Plaintiff's attorney, Stephanie Bartels Wallace. /s/ Eric B. Tucker ERIC B. TUCKER 16

RECOMMENDED DISPOSITION recommending that the decision of the Commissioner should be affirmed; and that the case should be dismissed, with prejudice. Objections due within 14 days of this Recommendation. Signed by Magistrate Judge Patricia S. Harris on 2/26/2018.

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION TISHA L. PHIFER PLAINTIFF V. NO. 4:17CV00157 BSM/PSH NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION DEFENDANT RECOMMENDED DISPOSITION The following Recommended Disposition ("Recommendation") has been sent to Chief United States District Judge Brian Miller. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objections; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact. I. Introduction: Plaintiff, Tisha L. Phifer, applied for disability benefits on November 25, 2013, alleging a disability onset date of July 31, 2013. (Tr. at 17). After conducting a hearing, the Administrative Law Judge ("ALJ") denied her application. (Tr. at 26). The Appeals Council denied her request for review. (Tr. at 1). The ALJ=s decision now stands as the final decision of the Commissioner, and Ms. Phifer has requested judicial review. For the reasons stated below, the Court should affirm the decision of the Commissioner. II. The Commissioner=s Decision: The ALJ found that Ms. Phifer had not engaged in substantial gainful activity since the alleged onset date of July 31, 2013. (Tr. at 19). At Step Two of the sequential five-step analysis, the ALJ found that Ms. Phifer has the severe impairment of degenerative disc disease. Id. The ALJ found that Ms. Phifer's impairment did not meet or equal a listed impairment. (Tr. at 20). Before proceeding to Step Four, the ALJ determined that Phifer had the residual functional capacity ("RFC") to perform work at the sedentary level, except she would have to avoid constant, repetitive bending. Id. The ALJ next found that Ms. Phifer was able to perform past relevant work as a warehouse worker, waitress, and telemarketer. (Tr. at 25). The ALJ made an alternative finding at Step Five. He relied on the testimony of a Vocational Expert ("VE") to find that, considering Ms. Phifer's age, education, work experience and RFC, jobs existed in significant numbers in the national economy that she could perform. (Tr. at 25-26). Therefore, the ALJ found that Ms. Phifer was not disabled. Id. III. Discussion: A. Standard of Review The Court's function on review is to determine whether the Commissioner's decision is supported by substantial evidence on the record as a whole and whether it is based on legal error. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015); see also 42 U.S.C. § 405(g). While "substantial evidence" is that which a reasonable mind might accept as adequate to support a conclusion, "substantial evidence on the record as a whole" requires a court to engage in a more scrutinizing analysis: "[O]ur review is more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision; we also take into account whatever in the record fairly detracts from that decision." Reversal is not warranted, however, "merely because substantial evidence would have supported an opposite decision." 2 Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (citations omitted). It is not the task of this Court to review the evidence and make an independent decision. Neither is it to reverse the decision of the ALJ because there is evidence in the record which contradicts his findings. The test is whether there is substantial evidence in the record as a whole which supports the decision of the ALJ. Miller, 784 F.3d at 477. The Court has reviewed the entire record, including the briefs, the ALJ's decision, and the transcript of the hearing. B. Ms. Phifer=s Arguments on Appeal Ms. Phifer contends that substantial evidence does not support the ALJ=s decision to deny benefits. She argues that: 1) the ALJ erred by not conducting the Psychiatric Review Technique ("PRT"); and 2) he did not give proper weight to the opinion of treating physician, Dr. Mike Umerah, M.D. After reviewing the record as a whole, the Court concludes that the ALJ did not err in denying benefits. The sparse record is made up almost entirely of records from Dr. Umerah. Ms. Phifer treated with him on a handful of occasions from 2012 to 2015. (Tr. at 270-315). She reported back pain, and Dr. Umerah found limited flexion and extension as well as lumbar tenderness. Id. He diagnosed degenerative disc disease and anxiety/depression. Id. He prescribed painkillers, and Ms. Phifer reported at almost all of the visits that her pain was at a level 2-3 with the aid of the medications. (Tr. at 275-304). Impairments that are controllable or amenable to treatment do not support a finding of total disability. Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000). On only one occasion, in August 2015, Ms. Phifer's pain rated a 9 out of 10. (Tr. at 329). Dr. Umerah did not order any objective imaging, and he did not suggest more than conservative treatment. Ms. Phifer did not see a pain specialist, undergo injections, or seek surgical 3 intervention. The need for only conservative treatment contradicts allegations of disabling pain. Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993). On February 25, 2014, Ms. Phifer reported that her anxiety/depression was stable. (Tr. at 292). She said she was doing well in July and October 2015, and that she was sleeping better as of August 25, 2014. (Tr. at 307-315). Improvement in condition supports an ALJ's finding that a claimant is not disabled. See Lochner v. Sullivan, 968, F.2d 725, 728 (8th Cir. 1992). Additionally, the record contains no evidence of mental health treatment or inpatient psychiatric hospitalization. Ms. Phifer reported to the disability interviewer that she had no difficulty with concentration, coherency, understanding, answering, or talking. (Tr. at 188). She said she could pay attention, finish what she starts, and follow instructions very well. (Tr. at 212). The record does not support the existence of a severe mental impairment. Nevertheless, Ms. Phifer contends that the ALJ committed reversible error by not conducting a PRT for her mental health condition. The PRT rates a claimant's degree of functional mental limitation in four broad areas: activities of daily living; social functioning; concentration, persistence, and pace; and episodes of decompensation. 20 C.F.R. §§ 404.1520a(b)(2), (c)(2)-(4), 416.920a(b)(2), (c)(2)-(4). The PRT is used to assess the severity of a claimant's impairment at Step Two, and to determine whether a claimant meets a Listing at Step Three. Id. The standardized PRT form is now used only at the initial and reconsideration levels; at the ALJ hearing and Appeals Council levels, documentation of the application of the PRT is in the decision itself, rather than on a separate form. 20 C.F.R. §§ 404.1520a(e), 416.920a(e) (2007). If a psychological examiner completed a form before the hearing and the ALJ discussed the technique within the decision, the ALJ has met the requirement for assessment of mental impairments. Id.; Montgomery v. Shalala, 4 30 F.3d 98, 100 (8th Cir. 1994); Craig v. Astrue, 2013 U.S. Dist. LEXIS *16 (W.D. Ark. February 25, 2013). Moreover, if an ALJ fails altogether to use the technique, it may still constitute harmless error. Cuthrell v. Astrue, 702 F.3d 1114, 1117-8 (8th Cir. 2013). This court has found harmless error where there is no credible evidence of a severe mental impairment. Nielson v. Barnhart, 88 F. Appx. 145, 147 (8th Cir. 2004). Here, the ALJ cited to the opinion of the state-agency psychiatrist, in which the psychiatrist discussed his PRT findings. (Tr. at 20). The physician, Dr. Winston Brown, M.D., assessed mild limitations in the four broad functional areas. (Tr. at 88). He noted that Ms. Phifer's anxiety and depression were stable and that they did not constitute a severe impairment, and the ALJ agreed. See Gowell v. Apfel, 242 F.3d 793, 797 (8th Cir. 2001)(a diagnosis of a mental impairment does not establish it as a severe impairment). Here, the ALJ fulfilled his duty to analyze the medical record and incorporate the findings therein. He properly assessed the reconsideration-level PRT to find that anxiety and depression were not severe impairments. Ms. Phifer's argument that the ALJ should have ordered a consultative psychiatric examination fails. It is well-settled that a Plaintiff has the burden of proving her disability; the ALJ does not have to play counsel for the Plaintiff. Clark v. Shalala, 28 F.3d 828, 830-831 (8th Cir. 1994). The ALJ is required to contact a treating or consulting physician only if the medical records presented do not provide sufficient evidence to make a decision on disability. Martise v. Astrue, 641 F.3d 909, 926-7 (8th Cir. 2011) The ALJ is not required to undertake a "fishing expedition" to obtain records he has no reason to believe exist. At the beginning of the hearing, Ms. Phifer's attorney indicated the record was complete, and at the end of the hearing, he did not ask for further examinations. (Tr. at 34). 5 Ms. Phifer did not allege mental impairments on her application. (Tr. at 69, 217-218). See Partee v. Astrue, 638 F.3d 860, 864 (8th Cir. 2011)(in affirming ALJ's finding of no mental impairment, the court noted that claimant did not allege mental impairment on the application for benefits). She did not treat with a mental health professional. She did not require hospitalization. Her complaints of mental health problems were sparse and mild. The ALJ had no reason to order a psychiatric evaluation; the record was fully developed. Ms. Phifer's final argument is that the ALJ should have given more weight to the medical source statement completed by Dr. Umerah. Dr. Umerah completed a check-box form on November 2, 2015, indicating that Ms. Phifer could only sit 2 hours per day, stand and walk 1 hour per day, and would need a break every 45 minutes during the workday. (Tr. at 324). He said she would miss more than four days of work per month. (Tr. at 325). Dr. Umerah did not cite to his own records or any objective testing to support his opinion. A conclusory check-box form has little evidentiary value when it cites to no medical evidence and provides little or no elaboration. Anderson v. Astrue, 696 F.3d 790, 794 (8th Cir. 2012). Moreover, the restrictions Dr. Umerah suggested do not align with Ms. Phifer's functional abilities based on her activities of daily living. She said she gets her kids off to school, helps them with their homework, attends to her personal hygiene, does dishes and laundry, and makes meals for the family on occasion. (Tr. at 207-209). She also shops for groceries, attends her kids' school activities, and goes to church. (Tr. at 210- 211). Such daily activities undermine her claims of disability. Shannon v. Chater, 54 F.3d 484, 487 (8th Cir. 1995); Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir. 2003). Finally, Dr. Umerah's opinion is not consistent with that of the state agency medical consultants. Dr. Janet Cathey, M.D., and Dr. Brett Alberty, M.D., found that Ms. Phifer could 6 perform work at the sedentary level. (Tr. at 57, 80). Given Ms. Phifer's conservative treatment, response to pain medication, and ability to engage in daily activities, Dr. Umerah's finding of significant restrictions was not persuasive. The ALJ properly evaluated his opinion. VI. Conclusion: There is substantial evidence to support the Commissioner=s decision that Ms. Phifer was not disabled. The ALJ fulfilled his duty at Step Two and properly evaluated the opinion of Dr. Umerah. The decision, therefore, should be affirmed. The case should be dismissed, with prejudice. IT IS SO ORDERED this 26th day of February, 2018. ___________________________________ UNITED STATES MAGISTRATE JUDGE 7

OBJECTION to [18] Report and Recommendations by Tisha L Phifer

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION TISHA LEE PHIFER, PLAINTIFF, CIVIL ACTION -V- NO. 4:17-CV-00157-BSM-PSH NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, DEFENDANT. ----------------------------------------------------------- PLAINTIFF'S OBJECTIONS TO RECOMMENDED DISPOSITION AT DOCKET 18 Tisha Lee Phifer ("Plaintiff") by and through her counsel of record, hereby objects to the Recommended Disposition (Dkt. No. 18) of United States Magistrate Judge Patricia S. Harris dated February 26, 2018. This action involves an appeal of a decision by the Commissioner of Social Security denying Plaintiff's application for disability insurance benefits and Supplemental Security Income under the Social Security Act. OBJECTIONS 1. The Magistrate Judge's recommendation that the ALJ did not err in weighing Dr. Umerah's opinion should be rejected. The Magistrate Judge found that the ALJ provided adequate reasoning for discounting the opinion of Dr. Umerah. However, Dr. Umerah's opinion was supported by the entirety of the medical record in this case, and was thus not inconsistent with the other substantial evidence of record. 20 C.F.R. §§ 404.1527, 416.927; Prosch v. Apfel, 201 F.3d 1010, 1013-14 (8th Cir. 2000). The Magistrate Judge's recommendations should be rejected. To begin. the Magistrate Judge indicated that Dr. Umerah's "check-box" form was conclusory, and had little value as it cited to no medical evidence and provided little or no 1 elaboration. Dkt. No. 18 at 6. The Magistrate Judge goes on to state that Dr. Umerah's opinion was inconsistent with the opinions of State agency medical consultants Drs. Cathey and Alberty, who found Plaintiff could perform at the sedentary level. Dkt. No. 18 at 6-7. However, the Magistrate Judge fails to compare their opinions to those of Dr. Umerah's. The Magistrate Judge reasons that the State agency opinions offer evidence to support the rejection of Dr. Umerah's opinion. This reliance is misplaced, as if Dr. Umerah's opinion is a check-box form, the State agency opinions are also check-box forms. The brief and conclusory opinions of non-examining State agency physicians provide "little substance and do not equate to 'better or more thorough medical evidence.'" Gillette v. Barnhart, 291 F. Supp. 2d 1071, 1077 (D.N.D. 2003). For example, Dr. Umerah noted that Plaintiff walked with a limp on multiple occasions, and observed lumbar tenderness, limited lumbar flexion, and paralumbar myofascial tenderness on every treatment since he began managing Plaintiff's pain in 2012. T 270, 271, 272, 273, 274, 276, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 291, 304, 305, 307, 308, 309, 311, 313, 314, 320, 322. The Magistrate Judge points to nothing other than Plaintiff's activities of daily living to discount Dr. Umerah's opinion, while the evidence of record highly supports his findings. Even further, these State agency opinions were completed without personal knowledge of Plaintiff's impairments, or much of the medical evidence of record. As the Eighth Circuit has held, the assessments of State agency medical consultants cannot constitute substantial evidence if they are not based upon a full record. Frankl v. Shalala, 47 F.3d 935, 938 (8th Cir. 1995); see also Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004) (opinions of non-examining state agency consultants are entitled to little weight in evaluating disability); Gilette, 291 F. Supp. 2d 2 at 1077 ("It is important to note that the opinions of non-examining physicians ordinarily do not constitute substantial evidence on the record as a whole."). Ultimately, the Magistrate Judge chooses the sedentary opinions of non-examining physicians without access to the record, over that of a treating physician's less than sedentary opinion. Thus, if every physician of record came to a similar result, it would be the most logical to adopt the opinion of the one who actually treated Plaintiff. The Eighth Circuit has upheld the dismissal of a treating physician's opinion where other medical opinions are more supported by the evidence, or where a treating physician's opinion is inconsistent with itself. Reed v. Barnhart, 399 F.3d 917, 920-21 (8th Cir. 2005). However, none of those factors are present here. Therefore, discounting Plaintiff's primary care physician Dr. Umerah's opinion for these reasons was unsupported by substantial evidence. The Magistrate Judge's recommendation that the ALJ did not err in weighing Dr. Umerah's opinion should be rejected, and this case should be remanded for further administrative proceedings. CONCLUSION For the foregoing reasons, it is respectfully requested that the Recommended Disposition be rejected. Plaintiff asks the District Court on de novo review to conclude that this claim should be remanded to the agency for further proceedings, including de novo hearing and a new decision. Dated: March 12, 2018 Respectfully submitted, /s/ Howard D. Olinsky Howard D. Olinsky, Esq. Olinsky Law Group Attorneys for Plaintiff One Park Place 3 300 South State Street, Suite 420, Syracuse, New York 13202 Phone: (315) 701-5780 Facsimile: (315) 701-5781 holinsky@windisability.com CERTIFICATE OF SERVICE This is to certify that I have this day served counsel for the Defendant with Plaintiff's Objections to Recommended Disposition, by electronically filing the foregoing with the Clerk of the Court by using the CM/ECF system which will send electronic notification of such filing to: Eric B. Tucker Special Assistant U.S. Attorney Social Security Administration Office of the General Counsel eric.tucker@ssa.gov This 12th day of March, 2018. /s/Howard D. Olinsky Howard D. Olinsky 4

CONSENT to Jurisdiction by U.S. Magistrate Judge. Case reassigned to Magistrate Judge Patricia S. Harris. Signed by Chief Judge Brian S. Miller on 3/23/2018.

AO 85 (Rev. 01/09) Notice, Consent, and Reference ofa Civil Action to a Magistrate Judge UNITED STATES DISTRICT COURT EASTERN°6f1s~'f!CT COURT usFILeo "ICT ARKANSAS for the Eastern District of Arkansas MAR 2 3 2018 TRISHA LEE PHIFER W.McCOR,) Plaintiff)) Civil Action No. 4:17-cv-157-BSM-PSH NANCY A. BERRYHitL) Defendant) NOTICE, CONSENT, AND REFERENCE OF A CIVIL ACTION TO A MAGISTRATE JUDGE Notice of a magistrate judge's availability. A United States magistrate judge of this court is available to conduct all proceedings in this civil action (including a jury or nonjury trial) and to order the entry of a final judgment. The judgment may then be appealed directly to the United States court of appeals like any other judgment of this court. A magistrate judge may exercise this authority only if all parties voluntarily consent. You may consent to have your case referred to a magistrate judge, or you may withhold your consent without adverse substantive consequences. The name of any party withholding consent will not be revealed to any judge who may otherwise be involved with your case. Consent to a magistrate judge's authority. The following parties consent to have a United States magistrate judge conduct all proceedings in this case including trial, the entry of final judgment, and all post-trial proceedings. Parties' printed names or attorneys Dates Trisha Lee Phifer, plaintiff 03/2/2018 Reference Order IT IS ORDERED: This case is referred to a United States magistrate judge to conduct all proceedings and order the entry of a final judgment in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. District Judge's signature Note: Return this form to the clerk of court only if you are consenting to the exercise of jurisdiction by a United States magistrate judge. Do not return this form to a judge. U.S. Department of Justice United States Attorney Eastern District ofArkansas 425 West Capitol Avenue, Suite 500 (501) 340-1600 Post Office Box 1229 Little Rocle, Arkansas 72203-1229 October 31, 2017 Mr. James W. McCormack U.S. District Clerk U.S. District Courthouse 600 West Capitol Avenue Little Rock, AR 7220 I RE: Consent to a United States Magistrate Judge Dear Mr. McCormack: The United States Attorney's Office, in accordance with the provisions of28 U.S.C. §636(c) and Fed. R. Civ. P. 73, voluntarily consents to have a United States Magistrate Judge conduct any and all further proceedings for all social security disability cases filed in the Eastern District of Arkansas. Our consent applies to all orders disposing of these matters, the entry of final judgements, and post-judgement proceedings. Once all other parties have consented, the clerk's office has our blanket authorization to process the consent form without the signature of a representative attorney for the United States. For record keeping purposes, we ask that a notification be placed on each consent form referencing this letter. Ms. Stacey E. McCord for the U.S. Attorney's Office is available to answer any questions your staff may have concerning our blanket authorization in social security disability cases.

MEMORANDUM OPINION AND ORDER affirming the Commissioner's decision and dismissing this case with prejudice. Signed by Magistrate Judge Patricia S. Harris on 4/9/2018.

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION TISHA L. PHIFER PLAINTIFF V. NO. 4:17CV00157 PSH NANCY A. BERRYHILL, Acting Commissioner DEFENDANT of the Social Security Administration MEMORANDUM OPINION AND ORDER1 I. Introduction: Plaintiff, Tisha L. Phifer, applied for disability benefits on November 25, 2013, alleging a disability onset date of July 31, 2013. (Tr. at 17). After conducting a hearing, the Administrative Law Judge ("ALJ") denied her application. (Tr. at 26). The Appeals Council denied her request for review. (Tr. at 1). The ALJ=s decision now stands as the final decision of the Commissioner, and Ms. Phifer has requested judicial review. II. The Commissioner=s Decision: The ALJ found that Ms. Phifer had not engaged in substantial gainful activity since the alleged onset date of July 31, 2013. (Tr. at 19). At Step Two of the sequential five-step analysis, the ALJ found that Ms. Phifer has the following severe impairment: degenerative disc disease. Id. 1 On February 26, 2018, the Court made a recommended disposition of this case to United States District Judge Brian S. Miller. See Docket Entry 18. Plaintiff Tisha L. Phifer filed objections to the recommended disposition on March 12, 2018. See Docket Entry 19. On March 23, 2018, a consent to jurisdiction was filed in this case. See Docket Entry 20. The effect of the consent to jurisdiction was that the case was reassigned to United States Magistrate Judge Patricia S. Harris. The Court has reviewed the objections filed by Ms. Phifer. They have not altered or otherwise changed the Court's view of this case. This document now stands as the Court's final order in this case. The ALJ found that Ms. Phifer's impairment did not meet or equal a listed impairment. (Tr. at 20). Before proceeding to Step Four, the ALJ determined that Phifer had the residual functional capacity ("RFC") to perform work at the sedentary level, except she would have to avoid constant, repetitive bending. Id. The ALJ next found that Ms. Phifer was able to perform past relevant work as a warehouse worker, waitress, and telemarketer. (Tr. at 25). The ALJ made an alternative finding at Step Five. He relied on the testimony of a Vocational Expert ("VE") to find that, considering Ms. Phifer's age, education, work experience and RFC, jobs existed in significant numbers in the national economy that she could perform. (Tr. at 25-26). Therefore, the ALJ found that Ms. Phifer was not disabled. Id. III. Discussion: A. Standard of Review The Court's function on review is to determine whether the Commissioner's decision is supported by substantial evidence on the record as a whole and whether it is based on legal error. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015); see also 42 U.S.C. § 405(g). While "substantial evidence" is that which a reasonable mind might accept as adequate to support a conclusion, "substantial evidence on the record as a whole" requires a court to engage in a more scrutinizing analysis: "[O]ur review is more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision; we also take into account whatever in the record fairly detracts from that decision." Reversal is not warranted, however, "merely because substantial evidence would have supported an opposite decision." Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (citations omitted). 2 It is not the task of this Court to review the evidence and make an independent decision. Neither is it to reverse the decision of the ALJ because there is evidence in the record which contradicts his findings. The test is whether there is substantial evidence in the record as a whole which supports the decision of the ALJ. Miller, 784 F.3d at 477. The Court has reviewed the entire record, including the briefs, the ALJ's decision, and the transcript of the hearing. B. Ms. Phifer=s Arguments on Appeal Ms. Phifer contends that substantial evidence does not support the ALJ=s decision to deny benefits. She argues that: 1) the ALJ erred by not conducting the Psychiatric Review Technique ("PRT"); and 2) he did not give proper weight to the opinion of treating physician, Dr. Mike Umerah, M.D. After reviewing the record as a whole, the Court concludes that the ALJ did not err in denying benefits. The sparse record is made up almost entirely of records from Dr. Umerah. Ms. Phifer treated with him on a handful of occasions from 2012 to 2015. (Tr. at 270-315). She reported back pain, and Dr. Umerah found limited flexion and extension as well as lumbar tenderness. Id. He diagnosed degenerative disc disease and anxiety/depression. Id. He prescribed painkillers, and Ms. Phifer reported at almost all of the visits that her pain was at a level 2-3 with the aid of the medications. (Tr. at 275-304). Impairments that are controllable or amenable to treatment do not support a finding of total disability. Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000). On only one occasion, in August 2015, Ms. Phifer's pain rated a 9 out of 10. (Tr. at 329). Dr. Umerah did not order any objective imaging, and he did not suggest more than conservative treatment. Ms. Phifer did not see a pain specialist, undergo injections, or seek surgical intervention. The need for only conservative treatment contradicts allegations of disabling pain. 3 Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993). On February 25, 2014, Ms. Phifer reported that her anxiety/depression was stable. (Tr. at 292). She said she was doing well in July and October 2015, and that she was sleeping better as of August 25, 2014. (Tr. at 307-315). Improvement in condition supports an ALJ's finding that a claimant is not disabled. See Lochner v. Sullivan, 968, F.2d 725, 728 (8th Cir. 1992). Additionally, the record contains no evidence of mental health treatment or inpatient psychiatric hospitalization. Ms. Phifer reported to the disability interviewer that she had no difficulty with concentration, coherency, understanding, answering, or talking. (Tr. at 188). She said she could pay attention, finish what she starts, and follow instructions very well. (Tr. at 212). The record does not support the existence of a severe mental impairment. Nevertheless, Ms. Phifer contends that the ALJ committed reversible error by not conducting a PRT for her mental health condition. The PRT rates a claimant's degree of functional mental limitation in four broad areas: activities of daily living; social functioning; concentration, persistence, and pace; and episodes of decompensation. 20 C.F.R. §§ 404.1520a(b)(2), (c)(2)-(4), 416.920a(b)(2), (c)(2)-(4). The PRT is used to assess the severity of a claimant's impairment at Step Two, and to determine whether she met a Listing at Step Three. Id. The standardized PRT form is now used only at the initial and reconsideration levels; at the ALJ hearing and Appeals Council levels, documentation of the application of the PRT is in the decision itself, rather than on a separate form. 20 C.F.R. §§ 404.1520a(e), 416.920a(e) (2007). If a psychological examiner completed a form before the hearing and the ALJ discussed the technique within the decision, the ALJ has met the requirement for assessment of mental impairments. Id.; Montgomery v. Shalala, 30 F.3d 98, 100 (8th Cir. 1994); Craig v. Astrue, 2013 U.S. Dist. LEXIS *16 (W.D. Ark. February 4 25, 2013). Moreover, if an ALJ fails altogether to use the technique, it may still constitute harmless error. Cuthrell v. Astrue, 702 F.3d 1114, 1117-8 (8th Cir. 2013). This court has found harmless error where there is no credible evidence of a severe mental impairment. Nielson v. Barnhart, 88 F. Appx. 145, 147 (8th Cir. 2004) Here, the ALJ cited to the opinion of the state-agency psychiatrist, in which the psychiatrist discussed his PRT findings. (Tr. at 20). The physician, Dr. Winston Brown, M.D., assessed mild limitations in the four broad functional areas. (Tr. at 88). He noted that anxiety and depression were stable and that they did not constitute a severe impairment, and the ALJ agreed. See Gowell v. Apfel, 242 F.3d 793, 797 (8th Cir. 2001)(a diagnosis of a mental impairment does not establish it as a severe impairment). Here, the ALJ fulfilled his duty to analyze the medical record and incorporate the findings therein. He properly assessed the reconsideration-level PRT to find that anxiety and depression were not severe impairments. Ms. Phifer's argument that the ALJ should have ordered a consultative psychiatric examination fails. It is well-settled that a Plaintiff has the burden of proving her disability; the ALJ does not have to play counsel for the Plaintiff. Clark v. Shalala, 28 F.3d 828, 830-831 (8th Cir. 1994). The ALJ is required to contact a treating or consulting physician only if the medical records presented do not provide sufficient evidence to make a decision on disability. Martise v. Astrue, 641 F.3d 909, 926-7 (8th Cir. 2011) The ALJ is not required to undertake a "fishing expedition" to obtain records he has no reason to believe exist. At the beginning of the hearing, Ms. Phifer's attorney indicated the record was complete, and at the end of the hearing, he did not ask for further examinations. (Tr. at 34). Ms. Phifer did not allege mental impairments on her application. (Tr. at 69, 217-218). See 5 Partee v. Astrue, 638 F.3d 860, 864 (8th Cir. 2011)(in affirming ALJ's finding of no mental impairment, the court noted that claimant did not allege mental impairment on the application for benefits). She did not treat with a mental health professional. She did not require hospitalization. Her complaints of mental health problems were sparse and mild. The ALJ had no reason to order a psychiatric evaluation; the record was fully developed. Ms. Phifer's final argument is that the ALJ should have given more weight to the medical source statement completed by Dr. Umerah. Dr. Umerah completed a check-box form on November 2, 2015, indicating that Ms. Phifer could only sit 2 hours per day, stand and walk 1 hour per day, and would need a break every 45 minutes during the workday. (Tr. at 324). He said she would miss more than four days of work per month. (Tr. at 325). Dr. Umerah did not cite to his own records or any objective testing to support his opinion. A conclusory check-box form has little evidentiary value when it cites to no medical evidence and provides little or no elaboration. Anderson v. Astrue, 696 F.3d 790, 794 (8th Cir. 2012). Moreover, the restrictions Dr. Umerah suggested do not align with Ms. Phifer's functional abilities based on her activities of daily living. She said she gets her kids off to school, helps them with their homework, attends to her personal hygiene, does dishes and laundry, and makes meals for the family on occasion. (Tr. at 207-209). She also shops for groceries, attends her kids' school activities, and goes to church. (Tr. at 210- 211). Such daily activities undermine her claims of disability. Shannon v. Chater, 54 F.3d 484, 487 (8th Cir. 1995); Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir. 2003). Finally, Dr. Umerah's opinion is not consistent with that of the state agency medical consultants. Dr. Janet Cathey, M.D., and Dr. Brett Alberty, M.D., found that Ms. Phifer could perform work at the sedentary level. (Tr. at 57, 80). Given Ms. Phifer's conservative treatment, 6 response to pain medication, and ability to engage in daily activities, Dr. Umerah's finding of significant restrictions was not persuasive. The ALJ properly evaluated his opinion. VI. Conclusion: There is substantial evidence to support the Commissioner=s decision that Ms. Phifer was not disabled. The ALJ fulfilled his duty at Step Two and properly evaluated the opinion of Dr. Umerah. The Commissioner's decision is therefore affirmed. This case is dismissed with prejudice, and judgment will be entered for the Commissioner. IT IS SO ORDERED this 9th day of April, 2018. ___________________________________ UNITED STATES MAGISTRATE JUDGE 7

JUDGMENT: Pursuant to [21] Order entered this day, judgment is entered for Nancy A. Berryhill, the Acting Commissioner of the Social Security Adminsitration. Signed by Magistrate Judge Patricia S. Harris on 4/9/2018.

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION TISHA L. PHIFER PLAINTIFF V. NO. 4:17CV00157 PSH NANCY A. BERRYHILL, Acting Commissioner DEFENDANT of the Social Security Administration JUDGMENT Pursuant to the Order entered this day, judgment is entered for Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration. IT IS SO ORDERED this 9th day of April, 2018. ___________________________________ UNITED STATES MAGISTRATE JUDGE 1

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Description
1
03/14/2017
MOTION for Leave to Proceed in forma pauperis by Tisha L Phifer.
2
03/14/2017
COMPLAINT against Social Security Administration, filed by Tisha L Phifer.
3
03/15/2017
ORDER granting Tisha L. Phifer's 1 application to proceed in forma pauperis. The Clerk of the Court shall issue summons to Phifer. Phifer is notified of her obligation under Federal Rule of Civil Procedure 4(m) to serve the appropriate individuals within the applicable time period. Signed by Magistrate Judge Patricia S. Harris on 3/15/2017.
03/15/2017
Summons Issued as to Social Security Administration, U.S. Attorney and U.S. Attorney General; and forwarded to plaintiff for service. (Text entry; no document attached.)
4
08/08/2017
ORDER directing the plaintiff to notify the Court immediately if she desires the assistance of the Court in serving her complaint upon the appropriate individuals, by filing a motion for assistance. In the event she fails to serve the appropriate individuals by 9/11/2017, or fails to file a motion for assistance in serving her complaint by 9/11/2017, the Court will dismiss this case. Signed by Magistrate Judge Patricia S. Harris on 8/8/2017.
5
09/05/2017
MOTION for Assistance in Serving a Complaint filed by Tisha L Phifer.
6
09/06/2017
ORDER granting plaintiff's 5 motion for assistance in serving her complaint. The Clerk of the Court shall re-issue a separate summons for the Social Security Administration, the Attorney General for the United States, and the United States Attorney for the Eastern District of Arkansas and the United States Marshal shall serve each with a copy of Phifer's complaint. Signed by Magistrate Judge Patricia S. Harris on 9/6/2017.
09/06/2017
Summons Re-Issued as to Social Security Administration, U.S. Attorney and U.S. Attorney General; and forwarded to the U.S. Marshal for service. (Text entry; no document attached.)
7
09/26/2017
SUMMONS Returned Executed. Social Security Administration served on 9/19/2017.
8
09/26/2017
SUMMONS Returned Executed. US Attorney served on 9/15/2017.
9
09/26/2017
SUMMONS Returned Executed. US Attorney General served on 9/18/2017.
10
10/12/2017
NOTICE of Appearance by Eric B. Tucker on behalf of Social Security Administration
11
11/15/2017
ANSWER to 2 Complaint by Social Security Administration.
12
11/15/2017
NOTICE by Social Security Administration of conventional filing of the administratve transcript
13
11/16/2017
(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) ADMINISTRATIVE TRANSCRIPT of proceedings re 11 Answer to Complaint and 12 Notice of Filing. Document received in paper and maintained in the Clerk's office. (cmn) (Documents with restricted access added as attachments on 11/16/2017 for review by Court users only.)
14
11/17/2017
SCHEDULING ORDER: Plaintiff Brief due by 12/29/2017. Defendant Brief due within 42 days of the day Plaintiff's Brief is served. Signed at the Direction of the Court on 11/17/2017.
15
11/27/2017
NOTICE of Appearance by Howard David Olinsky on behalf of Tisha L Phifer
16
12/29/2017
PLAINTIFF'S BRIEF filed by Tisha L Phifer. Defendant Brief due by 2/9/2018
17
02/09/2018
DEFENDANT'S BRIEF filed by Social Security Administration.
18
02/26/2018
RECOMMENDED DISPOSITION recommending that the decision of the Commissioner should be affirmed; and that the case should be dismissed, with prejudice. Objections due within 14 days of this Recommendation. Signed by Magistrate Judge Patricia S. Harris on 2/26/2018.
19
03/12/2018
OBJECTION to [18] Report and Recommendations by Tisha L Phifer
20
03/23/2018
CONSENT to Jurisdiction by U.S. Magistrate Judge. Case reassigned to Magistrate Judge Patricia S. Harris. Signed by Chief Judge Brian S. Miller on 3/23/2018.
21
04/09/2018
MEMORANDUM OPINION AND ORDER affirming the Commissioner's decision and dismissing this case with prejudice. Signed by Magistrate Judge Patricia S. Harris on 4/9/2018.
22
04/09/2018
JUDGMENT: Pursuant to [21] Order entered this day, judgment is entered for Nancy A. Berryhill, the Acting Commissioner of the Social Security Adminsitration. Signed by Magistrate Judge Patricia S. Harris on 4/9/2018.
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