Vickie Nolen v. Kilolo Kijakazi, Acting Commissioner of Social Security Administration

United States Court of Appeals
For the Eighth Circuit
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No. 22-1977
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Vickie Nolen
Plaintiff - Appellant
v.
Kilolo Kijakazi, Acting Commissioner of Social Security Administration
Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Northern
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Submitted: January 12, 2023
Filed: March 2, 2023
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Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
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BENTON, Circuit Judge.
Vickie Michelle Nolen appeals the district court’s1 order upholding a decision
by the Commissioner of the Social Security Administration denying her disability
1 Edie R. Ervin, United States Magistrate Judge for the Eastern District of
Arkansas, 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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insurance benefits and supplemental security income. She argues that the
Commissioner’s decision was not supported by substantial evidence. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
I.
On February 21, 2018, Nolen applied for disability insurance benefits and
supplemental security income under Titles II and XVI of the Social Security Act. 42
U.S.C. §§ 423, 1382. She alleged a disability onset date of April 22, 2017. After
several administrative hearings, an Administrative Law Judge found her not disabled
under the Act. The Appeals Council affirmed, making the ALJ’s decision the final
decision of the Commissioner. See Schmitt v. Kijakazi, 27 F.4th 1353, 1358 (8th
Cir. 2022).
Denying Nolen’s claims, the ALJ considered her testimony and medical
records and then applied the five-step disability evaluation from 20 C.F.R. §
404.1520. The ALJ determined that, despite medical challenges, Nolen retained the
residual functioning capacity (RFC) to perform light work with some limitations.
Relying on the RFC and testimony from a vocational expert, the ALJ found a
significant number of jobs in the national economy that Nolen could perform.
Nolen challenges only the ALJ’s consideration of an evaluation from one
treating physician, Dr. Kevin M. Diamond. Dr. Diamond filled out a checklist form
in which he opined that, contrary to the ALJ’s RFC assessment, Nolen’s impairments
severely limited her physical activity and would require multiple absences from
work.2 The ALJ found Dr. Diamond’s opinion unpersuasive because “the level of
2 Before the alleged disability onset date, Dr. Diamond filled out a similar
checkbox form. That older form, considered in Nolen’s previous application for
disability benefits, is not relevant to this appeal. See Freeman v. Apfel, 208 F.3d
687, 691 (8th Cir. 2000) (discounting opinions outside the relevant disability period).

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limitation [was] unsupported and highly inconsistent with the examinations in the
conservative treating record (including Dr. Diamond’s own treatment notes) and
claimant’s activity level.”
Nolen argues that the ALJ failed to sufficiently articulate his rationale for
rejecting Dr. Diamond’s opinion, rendering the ALJ’s decision legally erroneous and
unsupported by substantial evidence on the record as a whole.
II.
“This court reviews de novo a district court’s decision affirming the denial of
social security benefits.” Kraus v. Saul, 988 F.3d 1019, 1023 (8th Cir. 2021). It
affirms “if the ALJ made no legal error and the ALJ’s decision is supported by
substantial evidence on the record as a whole.” Id. at 1024 (citation omitted). The
“substantial evidence” standard requires this court consider evidence that both
supports and detracts from the Commissioner’s decision, and the standard will be
satisfied if a reasonable mind might accept the evidence as adequate to support the
Commissioner’s conclusion. Austin v. Kijakazi, 52 F.4th 723, 728 (8th Cir. 2022).
The standard “is not high.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
The ALJ was justified in finding Dr. Diamond’s opinion unpersuasive.
Nolen’s arguments parallel those rejected in Swarthout v. Kijakazi, 35 F.4th 608,
611 (8th Cir. 2022). There, this court ratified an ALJ’s rejecting a treating
physician’s checkbox opinion for two reasons: First, the opinion “was entitled to
relatively little evidentiary value on its face, because it was rendered on a check-box
and fill-in-the-blank form.” Swarthout, 35 F.4th at 611. Second, the discounted
medical opinion conflicted with the doctor’s treatment notes, other medical
examinations, the claimant’s activity level, and the claimant’s conservative
treatment plan. Id. at 611–12.

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The checkbox opinion here has both flaws identified in Swarthout. The
opinion’s bare, formulaic conclusion presumptively warranted little evidentiary
weight “because it was rendered on a check-box and fill-in-the-blank form.” Id. at
611. Dr. Diamond checked some boxes and left blank the short-answer section
asking what objective medical findings supported his assessment. See also Thomas
v. Berryhill, 881 F.3d 672, 675 (8th Cir. 2018) (discounting a treating physician’s
assessment with “vague, conclusory statements—checked boxes, circled answers,
and brief fill-in-the-blank responses”). The ALJ also found the checkbox form
“unsupported and highly inconsistent” with the record because Dr. Diamond’s
conservative treatment plan, other medical opinions, and Nolen’s own descriptions
of her activities contradict the checkbox assessment. See Swarthout, 35 F.4th at
611. Having considered the supportability and consistency of Dr. Diamond’s
opinion, the ALJ did not need to discuss other factors. See 20 C.F.R. §
404.1520c(b)(2).
The Commissioner, adopting the ALJ’s decision, correctly applied the law
and reached a conclusion supported by substantial evidence.
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The judgment is affirmed.
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