Opinion
Civ. No. 18-3090 (PAM/DTS)
09-11-2019
Kenneth R. Scherkenbach, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
This matter is before Court on the parties' cross-Motions for Summary Judgment. For the following reasons, Plaintiff's Motion is denied and Defendant's Motion is granted.
BACKGROUND
Plaintiff Kenneth Scherkenbach filed an application for disability insurance benefits on February 16, 2017, alleging that he has been disabled since November 12, 2016, when he suffered an acute respiratory event following surgery to address idiopathic thrombocytic purpura ("ITP"), a condition that results in dangerously low platelet counts. As a result of the respiratory event, he suffered multiorgan failure and was in the intensive care unit for several weeks, after which he exhibited significant mental status changes. Scherkenbach contends that his ITP, combined with a hip replacement, depression, anxiety, and cognitive impairments render him unable to work.
An individual is considered disabled for purposes of Social Security Disability Insurance benefits if he is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). In addition, an individual is disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Id. § 1382c(a)(3)(B). "[A] physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. § 1382c(a)(3)(D).
The Commissioner has established a sequential, five-step evaluation process to determine whether an individual is disabled. 20 C.F.R. § 416.920(a)(4). At step one, the claimant must establish that he is not engaged in any "substantial gainful activity." Id. § 416.920(a)(4)(i). If he is not, the claimant must then establish that he has a severe medically determinable impairment or combination of impairments at step two. Id. § 416.920(a)(4)(ii). At step three the Commissioner must find that the claimant is disabled, if the claimant satisfies the first two steps and the claimant's impairment meets or is medically equal to one of the listings in 20 C.F.R. Part 404, Subpart P, App'x 1. Id. § 416.920(a)(4)(iii). If the claimant's impairment does not meet or is not medically equal to one of the listings, the evaluation proceeds to step four. The claimant then bears the burden of establishing his residual functional capacity ("RFC") and proving that he cannot perform any past relevant work. Id. § 416.920(a)(4)(iv); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). If the claimant proves he is unable to perform any past relevant work, the burden shifts to the Commissioner to establish at step five that the claimant can perform other work existing in a significant number of jobs in the national economy. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant can perform such work, the Commissioner will find that the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(v).
The Administrative Law Judge ("ALJ") determined after a hearing that Scherkenbach had several severe impairments: idiopathic thrombocytic purpura, avascular necrosis of bilateral hips resulting in a total left hip replacement in May 2017, major depressive disorder and anxiety disorder, and mild cognitive impairment. (Admin. R. at 18.) The ALJ noted two other impairments—chronic sleep apnea and chronic kidney disease—but found that Scherkenbach experienced no functional limitations as a result of these conditions, and thus that they did not qualify as severe impairments. (Id. at 19.)
The ALJ then determined that none of Scherkenbach's severe impairments met or medically equaled the requirements of listed impairments. (Id. at 19-21.) The ALJ found that Scherkenbach's residual functional capacity allowed him to perform work that exists in significant numbers in the national economy. (Id. at 21-27.) Thus, the ALJ determined that Scherkenbach was not disabled. (Id. at 28.)
Scherkenbach brought this lawsuit under 42 U.S.C. § 405(g), after the Appeals Council affirmed the ALJ's determination that he was not disabled. Scherkenbach contends that the ALJ erred in determining that his depression and anxiety were not disabling. According to Scherkenbach, the record establishes both that he would have difficulty with even superficial interaction with the public and that he is incapable of working at an appropriate and consistent pace. Scherkenbach also challenges the ALJ's residual functional capacity finding, arguing that it is not supported by substantial evidence. In particular, Scherkenbach argues that the record establishes that he would miss work so often that he would be unable to hold down a job. And Scherkenbach contends that the ALJ's evaluation of the mental-health evidence was flawed, as the evidence established a severe mental impairment. Scherkenbach also argues that the ALJ should not have relied on the opinion of a state agency doctor, because that doctor did not have all of the evidence establishing the extent of Scherkenbach's mental impairments. Finally, Scherkenbach contends that the ALJ erred in evaluating his subjective symptoms.
DISCUSSION
The Court's review of the Commissioner's decision is limited to determining whether that decision is "supported by substantial evidence on the record as a whole." McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000). "Substantial evidence . . . is more than a mere scintilla." Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quotation omitted). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). As long as substantial evidence in the record supports the Commissioner's decision, the Court may not reverse it because substantial evidence exists in the record that would have supported a contrary outcome or because the Court would have decided the case differently. McKinney, 228 F.3d at 863.
A. Mental Impairments
Listings 12.04 and 12.06 govern the mental impairments Scherkenbach claims here. Both Listings have three paragraphs, and in Scherkenbach's case, he is required to establish that he satisfied both paragraphs B and C of the Listings. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(A)(2).
To satisfy paragraph B, Scherkenbach must prove that he had a marked limitation in two of the four outlined areas of mental functioning. Id. § 12.00(A)(2)(b). A marked limitation means that Scherkenbach's mental functioning "independently, appropriately, effectively, and on a sustained basis is seriously limited." Id. § 12.00(F)(2)(d). Scherkenbach contends that evidence in the record establishes that he had marked limitations in both social functioning and concentration, persistence or pace. But as the Commissioner points out, there was other evidence in the record that Scherkenbach's functioning was not marked, and indeed that Scherkenbach has exhibited improved mental functioning in more recent mental health records. The ALJ noted Scherkenbach's testimony regarding his daily activities, which at most established that he had moderate functional limitations. (R. at 20.) This evidence is "more than a mere scintilla," Biestek, 139 S. Ct. at 1154, and is sufficient to support the ALJ's determination regarding Paragraph B of the listings.
In addition, there is substantial evidence in the record to support the ALJ's finding that Scherkenbach did not meet the requirements of paragraph C of the Listings. First, paragraph C requires two years of documented mental-health issues. Although Scherkenbach contends that he has experienced mental-health issues for much of his adult life, the evidence in the record consists of documented mental-health difficulties beginning after Scherkenbach's surgery in November 2016. The ALJ's decision issued in May 2018, and thus the evidence did not establish the requisite two-year period of documented mental-health issues.
Substantial evidence supports the ALJ's determination that Scherkenbach did not meet Paragraph C1 or C2 of the Listings. Scherkenbach's weekly therapy sessions are not equivalent to requiring a highly structured setting or the like, as Paragraph C1 requires. And Paragraph C2 requires that the claimant has achieved only marginal adjustment to his daily life. The evidence in the record shows that Scherkenbach's functioning is far above "marginal adjustment." The ALJ's finding that there was no evidence regarding Scherkenbach's attendance at a partial hospitalization program in August and September of 2017 (R. at 21), even if erroneous, is not sufficient to overturn the ALJ's determination regarding Paragraph C.
B. RFC
The ALJ determined that Scherkenbach had the residual functional capacity ("RFC") to perform light work, with some modifications. Scherkenbach contends that the RFC determination is not supported by substantial evidence in the record.
Scherkenbach first challenges the ALJ's determination that his absences from work for medical appointments and other issues would not preclude him from employment. But past absences are not necessarily an indicator of future absences, especially when, as here, the record established that Scherkenbach's health, both mental and physical, improved substantially over the time period in question. Scherkenbach did not establish that his past absences were indicative of future ability to work, and his challenge to this part of the ALJ's decision is without merit.
Scherkenbach next takes issue with the ALJ's decision that his depression and resulting cognitive issues would not preclude him from working. But even had the ALJ considered Scherkenbach's participation in a partial hospitalization program in 2017, there was substantial evidence in the record regarding Scherkenbach's improved functioning and need for only weekly therapy by the time of the hearing. Moreover, the evidence to which Scherkenbach points regarding his IQ and cognitive abilities is not contrary to the ALJ's findings. While Scherkenbach's cognitive functioning may have slowed from his status before his hospitalizations, the evidence also established that his cognitive functioning was within average limits. And the ALJ's RFC accounted for Scherkenbach's mild cognitive limitations by restricting him to simple routine and repetitive tasks.
Substantial evidence supports the ALJ's RFC determination.
C. Opinion Evidence
Scherkenbach contends that the ALJ erred in giving great weight to the opinion of a state agency psychological consultant. (R. at 24.) According to Scherkenbach, the state agency physician did not have the complete record of his mental-health treatment, rendering the opinion unreliable. But a review of the opinion shows that the consultant had all relevant information and nonetheless determined that Scherkenbach did not meet the psychological listings. (Id. at 92.)
Moreover, the ALJ was entitled to give the state's disability determination no weight. It is Scherkenbach's burden to establish his disability, and if additional information was available regarding this disability determination, Scherkenbach should have provided that information to the ALJ.
The ALJ's treatment of the opinions of Scherkenbach's other providers is also not erroneous. Much of the evidence to which Scherkenbach points as reflecting poor mental health is evidence from mid-2017, during Scherkenbach's documented mental-health crises. This evidence is inconsistent with more recent treatment notes, which uniformly describe Scherkenbach's mental state as improving and within normal limits. The ALJ did not err in relying on the opinion of the state agency psychologist.
D. Subjective Symptoms
Finally, Scherkenbach contends that the ALJ improperly evaluated his subjective symptoms. In particular, Scherkenbach challenges as conclusive the ALJ's determination that Scherkenbach's statements regarding his symptoms were not entirely consistent with the evidence in the record. (R. at 22.)
But the ALJ thoroughly discussed Scherkenbach's subjective symptoms and compared those reported symptoms to other evidence in the record. (R. at 21-24.) Although Scherkenbach faults the ALJ for not explicitly outlining the factors he was required to analyze, it is clear from full reading of the ALJ's decision that he conducted the required analysis. He considered the record evidence compared to Scherkenbach's testimony and the reports of Scherkenbach's wife and treating providers. His determination that Scherkenbach's subjective symptoms were not consistent with the objective medical evidence and other evidence is supported by substantial evidence.
CONCLUSION
Substantial evidence in the record supports the Commissioner's decision to deny benefits here. Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's Motion for Summary Judgment (Docket No. 18) is DENIED; and
2. Defendant's Motion for Summary Judgment (Docket No. 20) is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Date: September 11, 2019
/s/_________
Paul A. Magnuson
United States District Court Judge