Anthony Loren Key v. Martin O’Malley,1 Commissioner of Social Security Administration

United States Court of Appeals
For the Eighth Circuit
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No. 23-1284
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Anthony Loren Key
lllllllllllllllllllllPlaintiff - Appellant
v.
Martin O’Malley,1 Commissioner of Social Security Administration
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: December 15, 2023
Filed: June 4, 2024
[Unpublished]
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Before SMITH, Chief Judge,2 GRUENDER and GRASZ, Circuit Judges.
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PER CURIAM.
1Martin O’Malley has been appointed to serve as Commissioner of Social
Security, and is substituted as appellee pursuant to Federal Rule of Appellate
Procedure 43(c).
2Judge Smith completed his term as chief judge of the circuit on March 10,
2024. See 28 U.S.C. § 45(a)(3)(A).

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Anthony Loren Key appeals from the district court’s3 order affirming the
Commissioner of Social Security’s denial of Key’s claim for disability insurance
benefits under Title II of the Social Security Act. Key argues that the administrative
law judge (ALJ) used the old standard in 20 C.F.R. § 404.1527 to evaluate medical
source opinions and prior administrative medical findings instead of 20 C.F.R.
§ 1520c, which applies to claims filed on or after March 27, 2017. He additionally
argues that the ALJ’s decision is against the overwhelming weight of the evidence
because the ALJ did not address several key pieces of objective medical evidence. We
disagree and affirm.
I. Background
On September 18, 2018, Key applied for disability insurance benefits based on
ongoing problems resulting from a lower back injury he suffered at work. To
establish entitlement to disability insurance benefits, Key was required to show that
he was disabled during a three-week period between December 11, 2017—the alleged
disability onset date—and December 31, 2017—the date last insured. See id.
§§ 404.130–.131. The ALJ denied benefits, and Key appealed. The Appeals Council
concluded that the ALJ had applied the incorrect legal standard to evaluate the
medical opinion evidence, stating:
Although the claimant filed the claim for a period of disability and
disability insurance benefits on September 18, 2018, the hearing
decision indicates the [ALJ] considered the opinion evidence of record
pursuant to 20 CFR 404.1527 (Decision, pages 7–8). For disability
claims filed on or after March 27, 2017, an [ALJ] must articulate the
persuasiveness of all of the medical opinions and prior administrative
medical findings (20 CFR 404.1520c(b)). In assessing the
persuasiveness of medical opinions and prior administrative medical
3The Honorable David P. Rush, United States Magistrate Judge for the Western
District of Missouri, to whom the case was referred for final disposition by consent
of the parties pursuant to 28 U.S.C. § 636(c).
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findings, an [ALJ] must explain how he or she considered their
consistency with other evidence of record, and their supportability (20
CFR 404.1520c(b)(2)). The more consistent a medical opinion(s) or
prior administrative medical finding(s) is with the evidence from other
medical and nonmedical sources, the more persuasive the medical
opinion(s) or prior administrative medical finding(s) will be (20 CFR
404.1520c(c)(2)[)]. In terms of supportability, the more relevant the
objective medical evidence and supporting explanations presented by a
medical source are to support his or her medical opinion(s) or prior
administrative medical finding(s), the more persuasive the medical
opinion(s) or prior administrative medical finding(s) will be (20 CFR
404.1520c(c)(1)). Consideration of the opinion evidence of record in
accordance with 20 CFR 404.1520c is required.
A.R. at 196 (emphases added). The Appeals Council remanded with instructions for
the ALJ to apply the correct, amended version of the rule. See 20 C.F.R. § 404.1520c.
On remand, the ALJ acknowledged the Appeals Council’s directive to apply
§ 404.1520c and confirmed his compliance with the directive, stating:
In its remand order, [the] Appeals Council directed the undersigned to
evaluate the medical source opinions and prior administrative medical
findings pursuant to the provisions of 20 CFR 404.1520c. . . . In
compliance with the above, I have offered the claimant an opportunity
for a hearing, taken the necessary action needed to complete the
administrative record, and issued a new decision.
A.R. at 16. Ultimately, the ALJ once again rendered an unfavorable decision.
Relevant to the present appeal, the ALJ found “that, through the date last insured,
[Key] had the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) except he was able to occasionally climb ramps and stairs, and
occasionally stoop and crouch.” Id. at 21 (emphasis omitted). In making this finding,
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the ALJ stated that he had “considered opinion evidence in accordance with the
requirements of 20 CFR 404.1527.” Id. (emphasis added).4
Key appealed, and the Appeals Council denied review. Key then sought
judicial review, arguing that the ALJ had again applied the incorrect legal standard
in evaluating the medical opinion evidence and that the denial of benefits was not
supported by substantial evidence. The district court affirmed the denial of benefits,
reasoning that, although the ALJ had erroneously cited to the old version of the rule,
it was likely inadvertent because the ALJ had actually applied the correct legal
standard. The district court further concluded that the ALJ’s decision was supported
by substantial evidence.
II. Discussion
On appeal, Key argues that the ALJ’s citation to the incorrect rule to evaluate
medical opinion evidence was not harmless error. He also argues that the ALJ’s
decision is not supported by substantial evidence because the ALJ ignored two pieces
of evidence: a low back CT/myleogram performed in July 2018 and a Functional
Capacity Evaluation (FCE) performed in December 2018.
We apply a de novo standard of review to a “district court’s decision upholding
the denial of social security benefits. When considering whether the ALJ properly
denied social security benefits, we determine whether the decision is based on legal
error, and whether the findings of fact are supported by substantial evidence in the
4See also id. at 23 (“[A] statement by a medical source that a claimant is
‘disabled’ does not mean that the claimant meets the statutory definition of disability,
which is an issue reserved to the Commissioner (20 CFR 404.1527(d)).”); id. at 24
(“[A] statement by a medical source that a claimant is ‘disabled’ does not mean that
the claimant meets the statutory definition of disability, which is an issue reserved to
the Commissioner (20 CFR 404.1527(d)).”)
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record as a whole.” Lowe v. Apfel, 226 F.3d 969, 971 (8th Cir. 2000) (citation
omitted).
A. Legal Standard
Key argues that the ALJ “used an incorrect legal standard to evaluate the
medical opinion evidence in this case.” Appellant’s Br. at 9. He asserts that the error
is not harmless. The Commissioner counters that the substance of the ALJ’s decision
followed the correct standard.
“The way in which ALJs review medical-opinion evidence changed on March
27, 2017, following the promulgation of 20 C.F.R. § 404.1520c.” Oakes v. Kijakazi,
70 F.4th 207, 212 (4th Cir. 2023). Section 404.1527 “still applies” to “claims filed
prior to that date.” Id. Section 404.1527 “requires the ALJ to assign more weight to
medical opinions from a claimant’s treating source or to explain why good cause
exists to disregard the treating source’s opinion.” Grant v. Soc. Sec. Admin., Comm’r,
No. 21-12927, 2022 WL 3867559, at *1 (11th Cir. Aug. 30, 2022) (per curiam). By
contrast, the new regulation requires an ALJ to consider five factors “when
determining the persuasiveness of medical opinions”: supportability, consistency,
relationship with the claimant, specialization, and other factors. Oakes, 70 F.4th at
212 (citing 20 C.F.R. § 404.1520c(c)(1)–(5)). Because Key “filed his claim
post-promulgation of 20 C.F.R. § 404.1520c,” the “new regulation” applies. Id.
Here, the ALJ cited § 404.1527, the inapplicable regulation, three times. The
ALJ’s citation to the incorrect regulation on three occasions, however, is harmless
error. Despite the erroneous references to the supplanted regulation, the ALJ applied
the correct standard set forth in the revised regulations. See Byes v. Astrue, 687 F.3d
913, 917–18 (8th Cir. 2012). First, the ALJ correctly cited 20 C.F.R. § 404.1520c at
the outset of the opinion, acknowledging the Appeals Council’s directive to apply the
new regulation on remand. See A.R. at 16 (“In its remand order, Appeals Council
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directed the undersigned to evaluate the medical source opinions and prior
administrative medical findings pursuant to the provisions of 20 CFR 404.1520c.”).
Second, consistent with the substantive requirements of § 404.1520c, the ALJ
did not assign weight to any of the opinions or prior administrative medical findings,
but instead determined their persuasiveness. See A.R. at 23 (finding Dr. Judee
Bland’s opinion “persuasive” but finding Dr. Kenneth Dugan’s, DeAnn Thompson’s,
and Barry Rineer’s opinions “not persuasive”); id. at 24 (finding Dr. Ted Lennard’s
and Dr. David Volardish’s opinions “not persuasive”). The ALJ also evaluated the
supportability and consistency factors, as § 404.1520c requires. See id. at 23 (finding
Dr. Bland’s opinion “consistent with the medical evidence during the relevant period”
but finding Dr. Dugan’s, Thompson’s, and Rineer’s opinions “inconsistent with the
medical evidence during the relevant period”); id. at 24 (finding Dr. Lennard’s and
Dr. Volardish’s opinions “inconsistent with the medical evidence during the relevant
period”).
Third, two of the ALJ’s citations to § 404.1527(d) are consistent with
§ 404.1520b(c)(3)(i). Compare 20 C.F.R. § 404.1527(d)(1) (“We are responsible for
making the determination or decision about whether you meet the statutory definition
of disability. In so doing, we review all of the medical findings and other evidence
that support a medical source’s statement that you are disabled. A statement by a
medical source that you are ‘disabled’ or ‘unable to work’ does not mean that we will
determine that you are disabled.”), with 20 C.F.R. § 404.1520b(c)(3)(i) (explaining
that “[s]tatements that you are or are not . . . able to work, or able to perform regular
or continuing work” are “inherently neither valuable nor persuasive”).
B. Substantial Evidence
Key argues that the ALJ’s decision is not based on substantial evidence
because “the ALJ completely ignored two crucial pieces of evidence.” Appellant’s Br.
at 10. These pieces of evidence are: (1) a CT/myelogram performed in July 2018
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revealing that Key has “degenerative dis[c] disease and spondylosis at L4-5 with
moderate to severe right neuroforaminal stenosis and impingement of the L4 nerve
root,” id. at 16 (emphasis omitted); and (2) a Functional Capacity Evaluation
administered by Brandon Lane, DPT, in December 2018 in which Lane “opined that
[Key] could work part-time in the Light physical demand category,” id. at 17
(emphasis omitted). In response, the Commissioner asserts that Key’s argument fails
“[b]ecause the cited evidence does not reasonably relate to [his] physical functioning
during the relevant period. Id. at 19.
The Commissioner is correct. Key does not dispute the ALJ’s finding that he
“must establish disability on or before” his date last insured. A.R. at 17; see also 20
C.F.R. §§ 404.130–.131; Turpin v. Colvin, 750 F.3d 989, 993 (8th Cir. 2014).Yet
Key faults the ALJ for ignoring evidence from after the date that Key was last
insured. The relevant period was a three-week period in December 2017. Key relies
on tests that occurred in 2018, after the relevant period. The ALJ permissibly did not
consider this evidence, and substantial evidence on the record as a whole supports the
decision.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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