Schmidt v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER - It is ordered that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's final decision. Signed by District Judge John W. Lungstrum on 16-1128. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KURT J. SCHMIDT,
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Acting Commissioner of Social Security
(hereinafter Commissioner) denying Disability Insurance benefits (DIB) and
Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and
1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and
1382c(a)(3)(A) (hereinafter the Act). Finding no error in the Administrative Law Judge’s
(ALJ) decision, the court ORDERS that judgment shall be entered pursuant to the fourth
sentence of 42 U.S.C. § 405(g) AFFIRMING that decision.
On Jan. 20, 2017, Nancy A. Berryhill, became Acting Commissioner of Social
Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure,
Nancy A. Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the
defendant. In accordance with the last sentence of 42 U.S.C. § 405(g), no further action
Plaintiff applied for DIB and SSI benefits, alleging disability beginning November
8, 2012. (R. 14, 204, 211). Plaintiff exhausted proceedings before the Commissioner,
and now seeks judicial review of the final decision denying benefits. He argues that the
ALJ erred in evaluating Plaintiff’s mental impairments at step two of the evaluation.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he
findings of the Commissioner as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual
findings are supported by substantial evidence in the record and whether he applied the
correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord,
White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than
a scintilla, but it is less than a preponderance; it is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971); see also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804
(10th Cir. 1988).
The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the
determination whether substantial evidence supports the Commissioner’s decision is not
simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by
other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. §§ 404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)).
“If a determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether he
has a severe impairment(s), and whether the severity of his impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner
assesses claimant’s residual functional capacity (RFC). 20 C.F.R. § 404.1520(e). This
assessment is used at both step four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process-determining at step four whether, in light of the RFC assessed, claimant can perform his
past relevant work; and at step five whether, when also considering the vocational factors
of age, education, and work experience, claimant is able to perform other work in the
economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one
through four the burden is on Plaintiff to prove a disability that prevents performance of
past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord,
Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2.
At step five, the burden shifts to the Commissioner to show that there are jobs in the
economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The court finds no error in the Commissioner’s final decision. The ALJ applied
the correct legal standard in making his step two evaluation, and substantial record
evidence supports his evaluation. Plaintiff does not point to record evidence that any
basic mental work activity has been affected more than minimally by his mental
impairments. And, he has not shown that the ALJ relied on the opinions of the state
agency psychologists, Dr. Stern and Dr. Maxfield, to find Plaintiff’s mental impairments
are not severe, so even if the court found those opinions to be stale, that would not impact
the ALJ’s finding that Plaintiff’s mental impairments are not severe. Finally, the
evidence cited by Plaintiff to show limitations resulting from mental impairments does
not compel finding more-than-minimal limitations, and is no more than an invitation to
the court to reweigh the evidence and substitute its judgment for that of the ALJ.
Plaintiff acknowledges that the first question raised here is whether Plaintiff’s
mental impairments are severe. (Pl. Br. 13). He notes that the ALJ found Plaintiff’s
mental impairments are not severe within the meaning of the Act, and argues that the ALJ
must have accorded great weight to the medical opinions of Dr. Stern and Dr. Maxfield in
this regard “due to the similarity between [Dr. Stern’s and Dr. Maxfield’s] assessment and
the ALJ’s step two finding.” Id. He argues that the ALJ’s reliance on these opinions was
error because the opinions were stale in light of the complete record. Id.
He argues that the record evidence, including Dr. Schwartz’s opinion that Plaintiff
had a severe cognitive impairment; Dr. Moore’s examination finding pressured speech,
tangential thinking, restless motor activity, and verbose streams of thought; and Ms.
Husling’s finding of circumstantial association, “suggest[s] at least moderate limitations
in concentration, persistence, and pace.” Id. at 16. He argues that limitations in social
functioning are supported by plaintiff’s anger and report of homicidal tendencies, and by
Ms. Hernandez’s recommendation of inpatient care. Id.
In response, the Commissioner argues that the step two finding that Plaintiff’s
mental impairments are not severe is supported by the record evidence. She points out
that the ALJ applied the Commissioner’s psychiatric review technique for evaluating
mental impairments and concluded that Plaintiff’s mental impairments are not severe.
(Comm’r Br. 6). She explains the ALJ’s evaluation and argues that the evidence upon
which he relied supports his evaluation. Id. at 6-8.
The ALJ’s Findings
In his step two analysis whether Plaintiff has medically determinable impairments
which are severe within the meaning of the Act, the ALJ specifically considered
Plaintiff’s mental impairments. (R. 17-20). He determined that Plaintiff has a bipolar
disorder which could potentially cause more than minimal limitation in Plaintiff’s ability
to perform basic mental work activities but that it is controlled by medication and is
consequently not severe. Id. at 17. He found that Plaintiff has other medically
determinable mental impairments including drug abuse, dysthymic disorder, and a
provisional diagnosis of cognitive disorder, but that those impairments do not cause more
than minimal limitations in Plaintiff’s ability to perform basic mental work activities and
are therefore not severe. Id.
The ALJ explained his findings that Plaintiff had only mild limitations in the first
three broad mental functional areas of activities of daily living, social functioning, and
concentration, persistence, or pace, and that Plaintiff has had no episodes of
decompensation, which have been of extended duration. Id. at 17-18. In his step two
analysis, the ALJ also provided an extensive discussion of the evidence regarding
Plaintiff’s mental impairments. Id. at 17-20.
Standard for Evaluating Mental Impairments at Step Two
As Plaintiff’s Brief suggests, a mental impairment is not considered severe if it
does not significantly limit plaintiff’s ability to perform basic mental work activities such
as understanding, carrying out, and remembering simple instructions; using judgment;
responding appropriately to supervision, coworkers, and usual work situations; and
dealing with changes in a routine work setting. 20 C.F.R. §§ 404.1521, 416.921. The
Tenth Circuit has interpreted the regulations and determined that to establish a “severe”
impairment or combination of impairments at step two of the sequential evaluation
process, plaintiff must make only a “de minimis” showing. Hinkle v. Apfel, 132 F.3d
1349, 1352 (10th Cir. 1997). Plaintiff need only show that an impairment would have
more than a minimal effect on his ability to perform basic work activities. Williams, 844
F.2d at 751. But, he must show more than the mere presence of a condition or ailment.
Hinkle, 132 F.3d at 1352. If an impairment’s medical severity is so slight that it could not
interfere with or have a serious impact on plaintiff’s ability to do basic mental work
activities, it could not prevent plaintiff from engaging in substantial work activity and will
not be considered severe. Hinkle, 132 F.3d at 1352.
The Commissioner has promulgated a Psychiatric Review Technique for
evaluating mental impairments. 20 C.F.R. §§ 404.1520a, 416.920a. That technique
provides for rating the degree of functional limitation in each of four broad mental
functional areas: activities of daily living; social functioning; concentration, persistence,
or pace; and episodes of decompensation. Id. §§ 404.1520a(c) 416.920a(c). After rating
the degree of limitation in each functional area, the Commissioner determines the severity
of plaintiff’s mental impairments. Id. §§ 404.1520a(d), 416.920a(d).
When the first three functional areas are rated as “none” or “mild,” and the fourth
area is rated as “none,” the agency will conclude at step two of the sequential evaluation
process that plaintiff’s mental impairments are not severe “unless the evidence otherwise
indicates that there is more than a minimal limitation in [the plaintiff’s] ability to do basic
work activities.” Id. §§ 404.1520a(d)(1), 416.920a(d)(1).
As noted above, the ALJ here applied the Psychiatric Review Technique and found
that Plaintiff has “mild” limitations in the first three broad mental functional areas, and no
episodes of decompensation which have been of extended duration. Therefore, in
accordance with the regulations, he was required to find Plaintiff’s mental impairments
are not severe unless the record evidence otherwise shows there is more than a minimal
limitation in Plaintiff’s ability to perform basic work activities.
Consequently, it was necessary and appropriate for the ALJ, as he did, to continue
his step two discussion of the evidence regarding Plaintiff’s mental impairments. He
recognized that Plaintiff’s bipolar disorder might cause more than a minimal limitation,
but he also noted Plaintiff’s primary care provider, Dr. Moore’s diagnosis of bipolar
disorder in full remission (R. 18) (citing Ex. 18F/15 (R. 544)), and he noted treatment
notes in which Plaintiff reported symptom improvement with treatment, and that
psychiatric medications were fairly effective in managing his bipolar disorder. (R. 19)
(citing Ex. 19F/2, 5 (R. 559, 562), and Ex. 21F/3 (R. 581)). He concluded that Plaintiff’s
bipolar disorder is controlled by medication. (R. 17).
The ALJ also considered evidence showing Plaintiff lives alone and requires no
assistance; has social activities and close social relationships, reports no difficulty
interacting or cooperating in stores, in treatment, or at work, ability to remember and
attend at appointments; denied concentration problems; and had no difficulties
performing duties when previously employed as a trucker. (R. 17-18). The ALJ noted
evidence of reasoning, memory, concentration, and logic revealed in Plaintiff’s treatment
notes and examinations. He noted records showing that Plaintiff was not reacting to
internal stimuli, was appropriately dressed and cooperative, that his stream of thought,
although verbose, was normal, and that Plaintiff had intact memory and attention. (R.
Plaintiff does not argue that the ALJ’s evaluation is incorrect or that he incorrectly
applied the standard for evaluating mental impairments at step two of the sequential
evaluation process. Rather, he assumes that the ALJ gave “great weight” to the opinions
of the state agency non-examining psychologists because of the similarity between the
psychologists’ assessments and the ALJ’s step two finding. (Pl. Br. 13) (citing R. 95-96,
110). The problem with Plaintiff’s argument is that other than the fact that the
psychologists and the ALJ reached similar conclusions, there is simply no evidence the
ALJ relied upon the psychologists’ opinions in reaching his step two findings.
To be sure, the ALJ summarized the psychologists’ opinions, so there can be no
doubt he was aware of and considered those opinions. But, that discussion appears much
later in the decision, toward the end of the ALJ’s RFC assessment. (R. 26). At no point
in his step two analysis did the ALJ even mention the state agency psychologists’
opinions. Rather, he discussed the record evidence relating to each of the broad mental
functional areas in order as he discussed those functional areas, and then he discussed the
rest of the record evidence relevant to his step two findings. (R. 17-20). Based upon that
discussion--and that evidence--he concluded that Plaintiff’s mental impairments are not
severe because they do not have more than a minimal effect on Plaintiff’s ability to
perform basic mental work activities. The fact that there are similarities between the
ALJ’s discussion and the psychologists’ rationale for their opinions is not surprising
because they were based upon similar evidence and they reached similar conclusions.
Plaintiff’s premise is not supported by the record evidence or by the decision at issue.
Having failed in its premise, Plaintiff’s argument must fail. Since the ALJ’s step
two findings did not rely on the state agency psychologists’ opinions, it is irrelevant
whether those opinions were stale when the ALJ made his decision. The medical records
received into the record after the state agency psychologists provided their opinions are
material to the step two determination. (Pl. Br. 16). And, those very records were
summarized, considered, and discussed by the ALJ in reaching his step two findings.
Plaintiff next argues that the record evidence demonstrates that his mental
impairments impose work limitations. (Pl. Br. 16). As a preliminary matter, Plaintiff
argues the wrong standard. The question at step two is not whether the mental
impairments impose any limitations in Plaintiff’s mental ability for work, but whether
they impose a more-than-minimal limitation in his ability to perform basic mental work
activities (understanding, carrying out, and remembering simple instructions; using
judgment; responding appropriately to supervision, coworkers. and usual work situations;
and dealing with changes in a routine work setting). Limitations in other mental abilities,
such as the ability to understand, remember, and carry out detailed instructions; the ability
to interact appropriately with the general public; or the ability to travel in unfamiliar
places or to use public transportation, are important in assessing an appropriate RFC, but
they do not constitute a limitation in the ability to perform basic mental work activities as
listed in the regulations. 20 C.F.R. §§ 404.1521, 416.921.
The evidence Plaintiff cites regarding work restrictions is erroneous in at least one
instance. Plaintiff argues that the record supports “Dr. Schwartz’s opinion that [Mr.]
Schmidt suffered a severe cognitive impairment in memory.” (Pl. Br. 16). But, Dr.
Schwartz did not opine that Plaintiff suffers a severe cognitive impairment. Rather, he
opined that “it is possible he does have some serious cognitive impairment.” (R. 526)
(emphases added). The ALJ accepted this provisional diagnosis, and found that it does
not show more-than-minimal effect on Plaintiff’s ability to perform basic mental work
activities. Plaintiff does not point to record evidence which demonstrates otherwise.
And, accepting at face value the evidence Plaintiff cites does not require finding
more-than-minimal limitations in the ability to perform basic mental work activities. The
most compelling evidence cited is Plaintiff’s assertion that Ms. Hernandez recommended
inpatient psychiatric care. (Pl. Br. 16) (citing R. 562, 567). This discussion was had in
reference to Plaintiff’s explanation of his “irritability that brought frequent thoughts of
harming others.” (R. 567). Ms. Hernandez discussed this incident in detail:
Client confirms homicidal ideation without intent. Plan would be to hit
others with an object. He confirms elevated irritability but reports this has
been a common experience and he has self-control. He doesn't want to go
to jail. We discussed inpatient services. He declined at this point, stating
he would contact this therapist if he felt he couldn’t control himself.
(R. 567). Although Ms. Hernandez “discussed inpatient services” with Plaintiff, it is not
clear that she recommended inpatient care. Plaintiff declined her offer, and there is no
indication she persisted in the request or suggested that inpatient services were required
or preferred in these circumstances. Moreover, Ms. Hernandez’s use of the terms
“irritability,” “harming others,” and “homicidal ideation without intent,” do not suggest
that Plaintiff was unable to control himself as he stated, or that his condition would have
more-than-minimal effect on his ability to perform basic mental work activities.
While the evidence relied upon by Plaintiff might be viewed to support a
conclusion contrary to that reached by the ALJ in this case, it does not require that
contrary conclusion. Plaintiff must demonstrate the error in the ALJ’s rationale or
finding; the mere fact that there is evidence which might support a contrary finding will
not establish error in the ALJ’s determination. “The possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative agency’s
findings from being supported by substantial evidence. We may not displace the
agency’s choice between two fairly conflicting views, even though the court would
justifiably have made a different choice had the matter been before it de novo.” Lax, 489
F.3d at 1084 (citations, quotations, and bracket omitted); see also, Consolo v. Fed.
Maritime Comm’n, 383 U.S. 607, 620 (1966) (same).
In his final argument, Plaintiff notes that an ALJ is required to consider the
combined effect of all of a claimant’s medically determinable impairments, even those
not found severe, when assessing RFC, and he argues that “it is unlikely that the ALJ
considered the impact of [Mr.] Schmidt’s mental impairments when assessing RFC.” (Pl.
Br. 17). The court cannot agree. Here, the ALJ spent three pages specifically discussing
Plaintiff’s medically determinable mental impairments in his step two analysis. (R. 1720). In his RFC analysis he discussed the medical opinions of the psychologists who
opined with regard to Plaintiff’s mental impairments. (R. 26-27). The ALJ’s credibility
analysis included consideration of facts and evidence relating to Plaintiff’s mental
impairments. (R. 25). The ALJ stated that he had arrived at his RFC assessment “[a]fter
careful consideration of the entire record” (R. 21) (finding no. 5) (bolding omitted), and
the court’s “general practice . . . is to take a lower tribunal at its word when it declares
that it has considered a matter.” Hackett, 395 F.3d at 1172-73 (citing United States v.
Kelley, 359 F.3d 1302, 1304-05 (10th Cir. 2004); and Andrews v. Deland, 943 F.2d 1162,
1170 (10th Cir. 1991)). And, Plaintiff does not suggest a mental limitation which is
supported by the record evidence and is not included in the RFC assessed by the ALJ.
Plaintiff has shown no error in the ALJ’s evaluation of Plaintiff’s mental
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.
Dated this 3rd day of April 2017, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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