Hewitt v. Colvin

Filing 24

MEMORANDUM AND ORDER re: 15 SOCIAL SECURITY BRIEF filed by Plaintiff Eric M Hewitt, 23 SOCIAL SECURITY CROSS BRIEF re 15 SOCIAL SECURITY BRIEF filed by Defendant Carolyn W. Colvin. IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED and this case is DISMISSED. A separate Judgment in accordance with Memorandum and Order is enteredherewith. Signed by Magistrate Judge Abbie Crites-Leoni on 3/20/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
ERIC M. HEWITT,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 2:13CV104 ACL

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial
review of the Commissioner’s final decision denying Plaintiff Eric M. Hewitt’s
application for disability insurance benefits under Title II of the Social Security
Act, 42 U.S.C. §§ 401, et seq., and application for supplemental security income
under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. All matters are pending
before the undersigned United States Magistrate Judge, with consent of the parties,
pursuant to 28 U.S.C. § 636(c). Because the Commissioner’s final decision is
supported by substantial evidence on the record as a whole, it is affirmed.
I. Procedural History
On June 30, 2010, Plaintiff Eric M. Hewitt applied for disability insurance
benefits (DIB) and supplemental security income (SSI), claiming he became
disabled on December 29, 2009, because of anxiety, severe attention deficit

hyperactivity disorder (ADHD), anger problems, and learning disability. (Tr. 13743, 165.) Upon initial consideration, the Social Security Administration denied
Hewitt’s claims for benefits. (Tr. 74-75, 78-83.) At Hewitt’s request, a hearing
was held before an administrative law judge (ALJ) on April 23, 2012, at which
Hewitt and a vocational expert testified. (Tr. 25-73.) On August 22, 2012, the
ALJ issued a decision denying Hewitt’s claims for benefits, finding Hewitt able to
perform his past relevant work as a trash collector, and alternatively finding that
Hewitt could perform other work as it exists in significant numbers in the national
economy. (Tr. 8-20.) On September 27, 2013, the Appeals Council denied
Hewitt’s request to review the ALJ’s decision. (Tr. 1-5.) The ALJ’s decision is
thus the final decision of the Commissioner. 42 U.S.C. § 405(g).
In the instant action for judicial review, Hewitt raises numerous claims
arguing that the ALJ’s decision is not supported by substantial evidence on the
record as a whole. Hewitt first claims that the ALJ erred by failing to consider his
bipolar disorder and borderline intellectual functioning as severe impairments, and
further erred in her evaluation of the evidence when finding Hewitt’s mental
impairments not to meet a listed impairment. Hewitt also challenges the ALJ’s
determination of his residual functional capacity (RFC), arguing specifically that
the ALJ erred in her credibility determination, failed to accord controlling weight
to the opinion of his treating psychiatrist, and failed to provide detailed findings to
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support her RFC assessment. Finally, Hewitt contends that the ALJ erred in her
determination that he can perform his past relevant work as a trash collector.
Hewitt requests that the final decision be reversed and that he be awarded benefits
or that the matter be remanded for further consideration. For the reasons that
follow, the ALJ did not err in her decision.
II. Testimonial Evidence Before the ALJ
A.

Plaintiff’s Testimony
At the hearing on April 23, 2012, Hewitt testified in response to questions

posed by the ALJ and counsel.
At the time of the hearing, Hewitt was twenty-five years of age. Hewitt is
married and has two children, ages one and five or six years old. Hewitt lives in an
apartment with his wife and one-year-old child. (Tr. 35-36.) Hewitt went to
school through the ninth grade. He has not earned his GED. Hewitt can read
somewhat. He has no health insurance. (Tr. 37.)
Hewitt testified that he worked for two weeks in 2004 as a trash collector.
(Tr. 41-42.) Hewitt testified that this job ended because it was only temporary
work. Hewitt also performed temporary work in a factory in 2006. (Tr. 62-63.)
From August 2007 to December 2009, Hewitt worked as a member of a crew at a
McDonald’s. Hewitt testified that he was fired from this job after he became angry
and pulled a knife on a coworker. (Tr. 37-38, 179.) Hewitt testified that he also
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argued with his manager, other coworkers, and customers when he worked at
McDonald’s. (Tr. 63.) Hewitt testified that he has not looked for work since being
fired from McDonald’s, because it is difficult for him to get around given that he
does not drive and his wife works. (Tr. 40.)
Hewitt testified that he is unable to work because of severe ADHD, which
makes it difficult for him to learn things and causes him to always fidget. Hewitt
testified that he cannot sit or stand for long periods of time because of his need to
move around. (Tr. 49-50.) Hewitt testified that his ADHD makes it difficult for
him to focus and to complete tasks. Hewitt testified that he cannot follow the plot
of a television show. Hewitt has difficulty reading, because he cannot sit still long
enough and does not understand some of the words. (Tr. 55-56.)
Hewitt testified that he also has bipolar disorder and experiences mood
swings throughout the day. Hewitt also has “really bad anger” and throws and
breaks things when he gets mad. (Tr. 49-50, 57.) Hewitt has “bad days” three or
four days a week during which time he sits around, stares at the walls, and ignores
everyone. Hewitt lies down for a couple of hours on these days and does not leave
the house. (Tr. 58-59.) Hewitt testified that he is unable to care for his one-yearold child while his wife works because of his mental instability. (Tr. 40.)
Hewitt has been seeing a psychiatrist for a couple of years and takes
medication for his conditions. The medication is provided by the health center.
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Hewitt testified that he takes Methylphenidate (MPH) for ADHD, which helps his
impairment, but does not control it. This medication causes no side effects.
Hewitt testified that he takes Saphris for bipolar disorder and anger issues, which
helps him sleep at night, but causes him to feel groggy in the morning. He no
longer takes Seroquel for the conditions. Hewitt testified that his psychiatrist
continually adjusts his medication. (Tr. 46-52.) Hewitt also testified that he has
been seeing a counselor for about three months and sees him every two weeks for
counseling. (Tr. 53-54.)
As to his daily activities, Hewitt testified that he gets up around 10:00 or
11:00 a.m., watches a little television, plays a video game, and helps clean the
house a bit. (Tr. 45.) Hewitt testified that he sometimes has interrupted sleep
because of restless legs. (Tr. 61.) Hewitt does not drive and has never driven. (Tr.
36.) Hewitt attempted six times to take the test to obtain his permit. (Tr. 56.)
Hewitt testified that he does not leave the house unless he is with his wife, because
he does not want to get in trouble or do something he is not supposed to do.
Hewitt testified that he is not bothered by being in a store, but he does not go
shopping because he forgets things. (Tr. 59-61.)
B.

Testimony of Vocational Expert
Barbara Meyers, a vocational expert, testified at the hearing in response to

questions posed by the ALJ and counsel.
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Ms. Meyers characterized Hewitt’s past employment as a fast food worker
as unskilled and light, medium as performed; and as a trash collector as unskilled
and medium. (Tr. 67.)
The ALJ asked Ms. Meyers to assume an individual of Hewitt’s age and
education and who has no exertional limitations. The ALJ asked Ms. Meyers to
further assume the individual to be “limited to simple, routine tasks; only
occasional changes in the working setting; only occasional interaction with public
or co-workers; and only occasional supervision[.]” (Tr. 67-68.) Ms. Meyers
testified that such a person could perform Hewitt’s past work as a trash collector as
well as other work as a laundry worker, of which 2,200 such jobs exist in the State
of Missouri and 100,000 nationally; cleaner, of which 1,400 such jobs exist in the
State of Missouri and 69,000 nationally; and kitchen helper, of which 15,000 such
jobs exist in the State of Missouri and 760,000 nationally. (Tr. 68-69.)
III. Medical and Education Records Before the ALJ
Hewitt underwent an ADHD psychological assessment in May 1994 and
was provisionally diagnosed with ADHD. Dysthymia, anxiety disorder, and
oppositional defiant disorder were to be ruled out. Hewitt was seven years old and
in the first grade. (Tr. 231-34.)
Hewitt attended Columbia Public Schools during his middle and high school
years. He flunked nearly all of his classes in sixth and seventh grade. In May
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2000, while in seventh grade, Hewitt obtained the following IQ scores as measured
by the Wechsler Intelligence Scale for Children – Third Edition (WISC-III):
verbal-76, performance-79, full scale-76, which placed him in the borderline range
of intellectual functioning. Social/Emotional/Behavioral scales completed by
Hewitt’s teachers consistently placed Hewitt in the “clinically significant” or “at
risk” range with multiple reports of threatening others, throwing tantrums, making
statements against self, and being verbally and physically aggressive toward
others. It was noted that Hewitt’s behavior improved somewhat with medication,
and specifically, MPH and Clonidine. In eighth grade, Hewitt earned grades
ranging from an A- in Physical Science to a D- in Careers. (Tr. 223, 253, 255-57,
268-83.)
Columbia Public Schools reviewed Hewitt’s Individual Education Plan
(IEP) in May 2002. Hewitt was fifteen years of age and in the ninth grade. It was
noted that results from the WISC-III administered on May 4, 2002, showed Hewitt
to be functioning in the borderline range of intellectual functioning. Hewitt was
noted to have been diagnosed with ADHD and to be in self-contained classrooms
for all subjects except Math. During the second term of his ninth grade year,
Hewitt earned a C- in Reading and D’s and F’s in all of his other classes. Hewitt
frequently argued with his peers and needed prompting to act appropriately with
them. Plans were made for Hewitt’s transition into high school. (Tr. 222, 235-47.)
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Hewitt withdrew from school in October 2002 because of “lack of interest.”
He was in the tenth grade. At the time of his withdrawal, Hewitt was earning D’s
and F’s in all of his classes. (Tr. 221-22.)
Between November 1996 and October 2002, Hewitt was suspended from
school on thirty-two occasions for harassment/intimidation, insubordination,
assault third degree, truancy, vandalism, fighting, classroom disruption, sexual
misconduct/harassment, and other unspecified offenses. (Tr. 224-28.)
After October 2002, the record of this case is silent until June 14, 2010,
when Hewitt underwent a psychiatric evaluation at Mark Twain Behavioral Health
(MTBH). Hewitt was twenty-three years of age. Hewitt reported to APRN
Reghnald Westhoff that he was having a lot of problems with anger and breaks
things when he is angry. Hewitt reported having had problems with severe ADHD
for years and that he has difficulty calming himself down. Hewitt denied any
problems with depression. Hewitt reported that he enjoyed building model cars.
Mr. Westhoff noted Hewitt not to currently be taking any medications. Hewitt
reported that he took Ritalin in the past and that the medication was very helpful in
calming him down and helping him stay focused and control his anger. Mental
status examination showed Hewitt to be oriented times three. Hewitt was noted to
be casually dressed, and his grooming was clean and neat. Hewitt’s speech was
clear and coherent. His mood was labile and his affect anxious. Mr. Westhoff
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noted Hewitt’s memory to be variable. Hewitt’s concentration and attention were
noted to be poor. Hewitt denied any visual or auditory hallucinations and denied
any suicidal or homicidal thinking. Mr. Westhoff determined Hewitt’s intelligence
to be below average to average. Hewitt’s motivation was noted to be fair and his
insight fair to poor. Hewitt was given provisional diagnoses of generalized anxiety
disorder (GAD) and ADHD-combined type. Mr. Westhoff assigned a Global
Assessment of Functioning (GAF) score of 45, indicating serious symptoms.1
Hewitt was given samples of Strattera and was prescribed Trazodone for sleep. He
was instructed to follow up in one month. (Tr. 336-38.)
Hewitt returned to MTBH on August 30, 2010, and reported that he was not
getting along with his wife. Hewitt reported that Strattera caused nausea, but he
continued to want treatment for ADHD. Hewitt reported feeling “wired.” Hewitt
also reported that he was doing odd jobs. Hewitt’s sleep and appetite were noted
to be good. No aggression was noted. The efficacy of Hewitt’s medication was
noted to be fair. Mr. Westhoff continued Hewitt in his diagnoses of GAD and
ADHD and assigned a GAF score of 55, indicating moderate symptoms.
Antisocial personality disorder was to be ruled out. Hewitt was instructed to
restart Strattera and to follow up with Dr. Goldman in two months. (Tr. 340.)2
1

Diagnostic & Statistical Manual of Mental Disorders 34 (4th ed. 2000 Text Revision).

2

This medical note is also signed by a physician, although the signature is illegible.
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On September 16, 2010, Michael Stacy, Ph.D., a psychological consultant
with disability determinations, completed a Psychiatric Review Technique Form in
which he opined that Hewitt’s ADHD and GAD caused Hewitt to experience mild
limitations in activities of daily living; moderate limitations in maintaining social
functioning and in maintaining concentration, persistence, or pace; and resulted in
no repeated episodes of decompensation of extended duration.
(Tr. 341-52.)
In a Mental RFC Assessment completed that same date, Dr. Stacy opined
that Hewitt was moderately limited in his ability to understand and remember
detailed instructions, but otherwise was not significantly limited in the domain of
Understanding and Memory. In the domain of Sustained Concentration and
Persistence, Dr. Stacy opined that Hewitt was moderately limited in his ability to
carry out detailed instructions and maintain attention and concentration for
extended periods, but otherwise was not significantly limited. In the domain of
Social Interaction, Dr. Stacy opined that Hewitt was moderately limited in his
ability to interact appropriately with the general public and to accept instructions
and respond appropriately to criticism from supervisors. Dr. Stacy expressed no
opinion as to Hewitt’s ability to get along with coworkers or peers. Dr. Stacy
further opined that Hewitt was not significantly limited in his ability to ask simple
questions or request assistance, or in his ability to maintain socially appropriate
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behavior and adhere to basic standards of neatness and cleanliness. In the domain
of Adaptation, Dr. Stacy opined that Hewitt was moderately limited in his ability to
respond appropriately to changes in the work setting, but otherwise was not
significantly limited. Dr. Stacy concluded that Hewitt had the ability to understand
and remember simple instructions; could carry out simple work instructions,
maintain adequate attendance, and sustain an ordinary work routine without special
supervision; could interact adequately with peers and supervisors in a setting with
limited social demands; and could adapt to most usual changes common to a
competitive work setting. (Tr. 353-55.)
Hewitt visited Dr. David Goldman at MTBH on October 25, 2010, and
reported that Strattera did not help his condition in that he continued to feel
“hyper” and “bounc[e] off the walls.” Hewitt reported continued difficulty falling
asleep and that he could not afford the Trazodone that was prescribed for the
problem. Hewitt requested that MPH and Clonidine be prescribed, given that they
were effective for him in the past. Hewitt reported his appetite to be good. No
side effects from his medication were noted. Dr. Goldman determined Hewitt to
have had minimal response to medication. Hewitt was noted not to exhibit any
aggression. Mental status examination was normal in all respects, with Hewitt
noted to exhibit a normal appearance as well as normal behavior, affect, thought
processes, insight, judgment, cognition, and impulse control. Dr. Goldman
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diagnosed Hewitt with GAD and ADHD-combined type. Hewitt was instructed to
taper off of Strattera for a period of nine days, after which MPH and Clonidine
would be started. (Tr. 370.)
Four weeks later, on November 22, 2010, Hewitt reported to Dr. Goldman
that he had filled his medication that same date. Hewitt reported his sleep to be
good. Mental status examination was unchanged from the previous visit. Hewitt
was continued in his diagnoses and was instructed to continue with his current
medication regimen of MPH and Clonidine, which he had just begun. (Tr. 369.)
On January 10, 2011, Hewitt reported to Dr. Goldman that he did not think
the medication was working. Hewitt also reported concerns regarding restless leg
syndrome. Dr. Goldman continued in his diagnoses of GAD and ADHD and
instructed Hewitt to increase his dosage of MPH. (Tr. 368.) On March 10, Hewitt
reported that he was doing better, and Dr. Goldman noted that Hewitt had a good
response to his medication. Mental status examination remained normal in all
respects. Hewitt was continued in his diagnoses and on his current medication
regimen. (Tr. 367.)
Hewitt returned to Dr. Goldman on July 26, 2011, and reported that he ran
out of his medication and did not fill his last prescriptions, because he could not
afford them. Hewitt reported having mood swings, which his wife confirmed.
Hewitt questioned whether he had bipolar disorder. Mental status examination
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remained normal in all respects. Hewitt was continued on his medications, and
Abilify was also prescribed. Bipolar disorder was to be ruled out. (Tr. 366.)
On September 21, 2011, Hewitt reported to Dr. Goldman that he was “not so
good” and complained that his medication wore off too quickly. Dr. Goldman
noted Hewitt to have had a fair to good response to medication, with no side
effects reported. Mental status examination remained normal. Hewitt was
continued in his diagnoses of GAD and ADHD. Bipolar disorder was to be ruled
out. Hewitt’s dosages of MPH and Abilify were increased. (Tr. 365.) On
September 26, Hewitt’s wife reported that Hewitt’s mood swings were better.
Hewitt was continued in his diagnoses and on his current medication regimen.
Bipolar disorder was to be ruled out. (Tr. 364.)
On September 26, 2011, Dr. Goldman completed a Mental Medical Source
Statement of Ability to Do Work-Related Activities (Mental MSS) (Tr. 358-60) in
which he opined that Hewitt was extremely limited in his ability to understand,
remember, and carry out complex instructions and in his ability to make judgments
on complex work-related decisions. Dr. Goldman further opined that Hewitt was
markedly limited in his ability to understand, remember, and carry out simple
instructions and to make judgments on simple work-related decisions. Dr.
Goldman explained that “due to patient’s [ADHD] and compromised cognitive
skills (memory defects), [he] is not able to remember, follow, or perform
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instructions or make decisions.” (Tr. 358.) With respect to social interaction, Dr.
Goldman opined that Hewitt was markedly to extremely limited in his ability to
interact appropriately with the public, supervisors, and coworkers as well as in his
ability to respond appropriately to usual work situations and to changes in a routine
work setting, explaining that Hewitt was unable to accept criticism and was easily
irritated and frustrated. Dr. Goldman explained further: “Due to patient’s mood
fluctuation, lability, and instability (bipolar d/o), [he] is easily frustrated, irritated,
and aggravated. [He] is not able to deal with changes in routine or environment.”
Dr. Goldman stated further that Hewitt was not able to function in a work
environment “even with medication.” Dr. Goldman reported that Hewitt’s mood
fluctuations were caused by his bipolar disorder; that his inability to focus and
concentrate was caused by his ADHD; and that his inability to deal with change
was caused by his anxiety disorder. Dr. Goldman agreed that Hewitt’s disability
began on December 29, 2009. (Tr. 359.)
On January 10, 2012, Hewitt reported to Dr. Goldman that he had not taken
Clonidine for at least one month and was experiencing mood swings. Hewitt also
reported having poor sleep. Mental status examination remained normal in all
respects. Dr. Goldman noted Hewitt to have overdosed on Clonidine, and the
medication was discontinued. Hewitt was prescribed Seroquel and was instructed
to discontinue Abilify. (Tr. 363.)
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On March 6, 2012, Hewitt reported weight gain and that Seroquel made him
feel weird in the morning. Hewitt was continued in his diagnoses of GAD and
ADHD. Bipolar disorder was to be ruled out. Hewitt was instructed to continue
with MPH. Saphris was prescribed. (Tr. 362.)
On June 1, 2012, Dr. Goldman reported that his responses given in the
September 2011 Mental MSS remained the same given that Hewitt’s symptoms
remained the same. (Tr. 372-74.)
IV. The ALJ's Decision
The ALJ found that Hewitt met the insured status requirements of the Social
Security Act through December 31, 2013, and that Hewitt had not engaged in
substantial gainful activity since December 29, 2009, the alleged onset date of
disability. The ALJ found Hewitt’s GAD and ADHD to be severe impairments,
but that Hewitt did not have an impairment or combination of impairments that met
or medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. 13-14.) The ALJ determined that Hewitt had the RFC to
perform work at all exertional levels, but with non-exertional limitations to
“simple, routine tasks with only occasional changes in the work setting, only
occasional interaction with the public and coworkers, and only occasional
supervision.” (Tr. 15.) The ALJ found Hewitt able to perform his past relevant
work as a trash collector. Alternatively, the ALJ found vocational expert
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testimony to support a finding that, with his age, education, work experience, and
RFC, Hewitt could perform other work as it existed in significant numbers in the
national economy, and specifically, laundry worker, cleaner, and kitchen helper.
The ALJ thus found that Hewitt was not under a disability from December 29,
2009, through the date of the decision. (Tr. 19-20.)
V. Discussion
To be eligible for DIB and SSI under the Social Security Act, plaintiff must
prove that he is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.
2001); Baker v. Secretary of Health & Human Servs., 955 F.2d 552, 555 (8th Cir.
1992). The Social Security Act defines disability as the "inability 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 12 months." 42
U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual will be declared 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." 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B).
To determine whether a claimant is disabled, the Commissioner engages in a
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five-step evaluation process. See 20 C.F.R. §§ 404.1520, 416.920; Bowen v.
Yuckert, 482 U.S. 137, 140-42 (1987). The Commissioner begins by deciding
whether the claimant is engaged in substantial gainful activity. If the claimant is
working, disability benefits are denied. Next, the Commissioner decides whether
the claimant has a “severe” impairment or combination of impairments, meaning
that which significantly limits his ability to do basic work activities. If the
claimant's impairment(s) is not severe, then he is not disabled. The Commissioner
then determines whether claimant's impairment(s) meets or equals one of the
impairments listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. If claimant's
impairment(s) is equivalent to one of the listed impairments, he is conclusively
disabled. At the fourth step, the Commissioner establishes whether the claimant
can perform his past relevant work. If so, the claimant is not disabled. If the
claimant is found unable to perform such past work, the Commissioner evaluates
various factors to determine whether the claimant is capable of performing any
other work in the economy. If not, the claimant is declared disabled and becomes
entitled to disability benefits.
The decision of the Commissioner must be affirmed if it is supported by
substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v.
Perales, 402 U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir.
2002). Substantial evidence is less than a preponderance but enough that a
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reasonable person would find it adequate to support the conclusion. Johnson v.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This “substantial evidence test,”
however, is “more than a mere search of the record for evidence supporting the
Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007)
(internal quotation marks and citation omitted). “Substantial evidence on the
record as a whole . . . requires a more scrutinizing analysis.” Id. (internal quotation
marks and citations omitted).
To determine whether the Commissioner's decision is supported by
substantial evidence on the record as a whole, the Court must review the entire
administrative record and consider:
1.

The credibility findings made by the ALJ.

2.

The plaintiff's vocational factors.

3.

The medical evidence from treating and consulting physicians.

4.

The plaintiff's subjective complaints relating to exertional and
non-exertional activities and impairments.

5.

Any corroboration by third parties of the plaintiff's
impairments.

6.

The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
claimant's impairment.

Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir.
1992) (internal citations omitted). The Court must also consider any evidence
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which fairly detracts from the Commissioner’s decision. Coleman, 498 F.3d at
770; Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999). However, even
though two inconsistent conclusions may be drawn from the evidence, the
Commissioner's findings may still be supported by substantial evidence on the
record as a whole. Pearsall, 274 F.3d at 1217 (citing Young v. Apfel, 221 F.3d
1065, 1068 (8th Cir. 2000)). “[I]f there is substantial evidence on the record as a
whole, we must affirm the administrative decision, even if the record could also
have supported an opposite decision.” Weikert v. Sullivan, 977 F.2d 1249, 1252
(8th Cir. 1992) (internal quotation marks and citation omitted); see also Jones ex
rel. Morris v. Barnhart, 315 F.3d 974, 977 (8th Cir. 2003).
For the following reasons, substantial evidence on the record as a whole
supports the ALJ’s decision in this cause.
A.

Severe Impairments
Hewitt claims that the ALJ erred at Step 2 of the sequential analysis by

failing to consider his borderline intellectual functioning and bipolar disorder to be
severe impairments. To the extent the ALJ’s failure to identify these impairments
as severe impairments can be considered error, such error was harmless.
Where an ALJ errs by failing to find an impairment to be severe, such error
is harmless if the ALJ finds the claimant to suffer from another severe impairment,
continues in the evaluation process, and considers the effects of the impairment at
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the other steps of the process. See Coleman v. Astrue, No. 4:11CV2131 CDP,
2013 WL 665084, at *10 (E.D. Mo. Feb. 23, 2013). At Step 2 of the sequential
analysis here, the ALJ found Hewitt to have severe impairments, and specifically
GAD and ADHD, but found Hewitt’s bipolar disorder and borderline intellectual
functioning not to be severe. (Tr. 13-14.) Continuing in the evaluation process,
however, the ALJ considered the effects of these impairments and, indeed, the
RFC assessment reflected such effects.
Subsequent to Step 2, the ALJ discussed Hewitt’s claimed bipolar disorder,
specifically noting Hewitt’s reports to Dr. Goldman that he experienced mood
swings, Dr. Goldman’s provision of treatment in response to such reports, Hewitt’s
wife’s reports of improvement in mood swings with treatment, and Dr. Goldman’s
observations of Hewitt’s behavior. The ALJ’s RFC assessment contained
significant social limitations that restricted plaintiff’s contact with others and
accounted for limited changes in work settings. In her decision, the ALJ stated that
this RFC would not change even if Hewitt’s bipolar disorder were considered to be
severe. (Tr. 13.) Given that the ALJ included the effects of Hewitt’s claimed
bipolar disorder in her overall analysis, her failure to find the condition to be a
severe impairment at Step 2 was harmless. See Maziarz v. Secretary of Health &
Human Servs., 837 F.2d 240, 244 (6th Cir. 1987); Lorence v. Astrue, 691 F. Supp.
2d 1008, 1028 (D. Minn. 2010); see also Chavez v. Astrue, 699 F. Supp. 2d 1125,
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1133 (C.D. Cal. 2009). This is especially true here where the ALJ included such
effects in the RFC assessment. See 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2)
(Commissioner required to consider any non-severe impairments when
determining RFC); Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008) (ALJ must
consider combined effects of severe and non-severe impairments).
The same holds true for Hewitt’s borderline intellectual functioning.
Although the ALJ determined at Step 2 that this impairment was not severe, she
considered the effects of this impairment as she proceeded through the remainder
of her analysis. The ALJ specifically discussed Hewitt’s school records, his
performance on IQ tests, the effect of medication on his study skills, his ability to
maintain employment at McDonald’s for two years, and his current difficulty with
reading. In addition, as noted by the ALJ, Hewitt’s borderline intellectual
functioning was accommodated in the RFC assessment with the limitation to
simple, routine tasks with only occasional changes in the work setting. Such RFC
limitations adequately account for a claimant’s borderline intelligence. See
Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001). Inasmuch as the ALJ
included the effects of Hewitt’s borderline intellectual functioning in her overall
analysis and accounted for its effects in the RFC assessment, her failure to find the
condition to be a severe impairment at Step 2 was harmless. See Maziarz, 837
F.2d at 244; Lorence, 691 F. Supp. 2d at 1028; see also Chavez, 699 F. Supp. 2d at
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1133; Coleman, 2013 WL 665084, at *10.
B.

Listed Impairments
Hewitt claims the ALJ erred by failing to find his mental impairments not to

meet a listed impairment, and specifically, Listings 12.02, 12.04, and 12.06.
Hewitt contends that the ALJ reached this erroneous result by addressing only that
evidence that supported her finding of non-listing level severity and by improperly
discounting Dr. Goldman’s opinion that Hewitt suffered extreme and marked
limitations.
Section 12.00 of the Listings of Impairments governs the evaluation of
disability on the basis of mental disorders. For Listings 12.02, 12.04, and 12.06, a
claimant must show that his mental impairment meets “paragraph B” criteria, that
is, that it results in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or
pace; or
4. Repeated episodes of decompensation, each of extended duration.
A marked limitation “means more than moderate but less than extreme” and “may
arise when several activities or functions are impaired, or even when only one is
impaired, as long as the degree of limitation is such as to interfere seriously with
your ability to function independently, appropriately, effectively, and on a
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sustained basis.” 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00(C). To meet
a listed impairment, the claimant must show that he meets all of the Listing’s
criteria. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014).
In her written decision here, the ALJ found Hewitt not to have any marked
limitations, but instead to have mild restrictions in activities of daily living;
moderate difficulties in social functioning; moderate difficulties in concentration,
persistence, or pace; and to have had no episodes of decompensation of an
extended duration. (Tr. 14.) Although Hewitt’s treating psychiatrist opined that
Hewitt experienced marked and extreme limitations in such domains, the ALJ
properly determined to accord little weight to this opinion. (See Sec. V.C.2, infra.)
For the following reasons, substantial evidence on the record as a whole supports
the ALJ’s findings that Hewitt’s limitations in all domains are less than marked.
With respect to activities of daily living, § 12.00 of the Listings directs the
Commissioner to consider adaptive activities such as cleaning, shopping, cooking,
taking public transportation, paying bills, maintaining a residence, caring
appropriately for grooming and hygiene, using telephones and directories, and
using a post office. § 12.00(C)(1). Finding Hewitt to have mild restrictions in this
domain, the ALJ specifically noted that Hewitt helps his wife clean the house and
is able to go shopping despite his claim that he forgets things. The record also
shows that Hewitt was observed to have a normal appearance at all of his
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appointments with Dr. Goldman and was clean and neatly groomed at his first
appointment at MTBH in 2010. In addition, Hewitt’s wife reported in her Third
Party Function Report that Hewitt had no problems with personal care, helped
prepare meals, paid bills, and performed chores such as mowing the lawn and
taking out the trash. (Tr. 171-78.) Although the record shows Hewitt to need
reminders to take his medication in the morning (id.), there nevertheless is
substantial evidence demonstrating that, while limited, Hewitt does not experience
limitations in his daily activities to such degree as to interfere seriously with his
ability to function independently, appropriately, effectively, and on a sustained
basis, as shown by his activities described above and set out in the record. To the
extent Hewitt contends that the ALJ failed to consider his testimony that he does
nothing on his “bad days” (see Pltf.’s Brief, Doc. 15 at 8), a review of the ALJ’s
decision shows the contrary. (Tr. 16.) As discussed infra, however, the ALJ
properly determined Hewitt’s testimony not to be consistent with the evidence.
(See Sec. V.C.1, infra.) The ALJ did not err in finding Hewitt’s limitations in his
activities of daily living to be less than marked.
With respect to social functioning, § 12.00 directs the Commissioner to
consider the claimant’s capacity to interact with and get along with others, such as
family members, friends, neighbors, grocery clerks, landlords, or bus drivers. The
capacity for such interaction may be exhibited by a history of altercations, firings,
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or social isolation as well as evidence of initiating social contact, participating in
group activities, or communicating clearly with others. See, § 12.00(C)(2). Here,
the ALJ found Hewitt to be moderately limited in this domain, specifically noting
Hewitt’s anger issues and ADHD symptoms to affect his relevant functioning.
This finding is supported by substantial evidence. As noted by the ALJ, Dr.
Goldman consistently observed Hewitt to exhibit normal behaviors during all of
his appointments and to display no aggressiveness. In addition, the record shows
Hewitt’s wife to report that she and Hewitt play cards together, take rides, watch
television, and visit family. She also reported that Hewitt is able to go out alone
and shop for clothes and food. (Tr. 171-78.) Although Hewitt testified that his
shopping is limited by his difficulty remembering things, he also testified that
being around people while shopping did not bother him. These activities support
the ALJ’s finding that Hewitt’s limitations in social functioning are less than
marked. The ALJ acknowledged Hewitt’s difficulty dealing with the public and
noted that Hewitt engaged in altercations while at work. The record also shows
Hewitt to have angered easily and to have argued with his wife and family. Such
circumstances were reported to have occurred, however, prior to Hewitt beginning
mental health treatment in 2010. E.g., Blackburn, 761 F.3d at 859-60. As such,
while the record shows Hewitt to experience limitations in social functioning, the
ALJ did not err in finding them not to rise to the level of marked limitations.
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Although not all the evidence “pointed in that direction,” there nevertheless was a
sufficient amount that did. See Moad v. Massanari, 260 F.3d 887, 891 (8th Cir.
2001).
With respect to concentration, persistence, or pace, the Commissioner must
consider the claimant’s ability to sustain focused attention and concentration
sufficiently long to permit the timely and appropriate completion of tasks
commonly found in work settings. § 12.00(C)(3). In this domain, the ALJ
determined Hewitt to have moderate difficulties, again noting Hewitt’s anger
issues and ADHD to affect his relevant abilities. The ALJ specifically noted that
Hewitt experienced problems in this domain as a child and that such problems
improved with medication. Hewitt was not taking any medication when he first
sought treatment as an adult and, indeed, upon beginning treatment, his GAF score
rose from 45 to 55 indicating an improvement from serious symptoms to moderate.
After four months of treatment, Hewitt’s mental status was normal in all respects,
with Dr. Goldman noting Hewitt to have normal thought processes, insight,
judgment, and cognition. Repeated mental status examinations showed Hewitt to
continue to exhibit normal behavior throughout his treatment with Dr. Goldman.
The ALJ noted Hewitt’s testimony that he cannot watch television because of his
inability to concentrate, but also noted that plaintiff testified that he plays video
games, which requires a level of concentration. The record also shows Hewitt to
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play cards, build model cars, and perform “odd jobs.” There is a sufficient amount
of evidence to support the ALJ’s decision that while limited, Hewitt does not
experience limitations to such a degree to be considered markedly limited in
concentration, persistence, or pace. Upon review of the record as a whole, it
cannot be said that the ALJ’s findings are not supported by substantial evidence.
Finally, Hewitt does not claim that he experienced repeated episodes of
decompensation of an extended duration, and the record does not reveal any such
episodes.
Because substantial evidence on the record as a whole supports the ALJ’s
determination that Hewitt’s mental impairments did not meet the Part B criteria for
mental disorders under Listing 12.00, she did not err when she found Hewitt’s
mental impairment not to meet a listed impairment.
C.

RFC Determination
A claimant’s RFC is the most he is able to do despite his limitations. 20

C.F.R. §§ 404.1545, 416.945; Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir.
2004); Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001). The ALJ bears the
primary responsibility for assessing a claimant's RFC based on all relevant
evidence, including medical records, the observations of treating physicians and
others, and the claimant's description of his limitations. Krogmeier v. Barnhart,
294 F.3d 1019, 1024 (8th Cir. 2002); Hutsell v. Massanari, 259 F.3d 707, 711 (8th
- 27 -

Cir. 2001); Dunahoo, 241 F.3d at 1039 (citing Anderson v. Shalala, 51 F.3d 777,
779 (8th Cir. 1995)); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). As such,
when determining a claimant’s RFC, the ALJ must necessarily evaluate the
credibility of the claimant’s subjective complaints. Wagner v. Astrue, 499 F.3d
842, 851 (8th Cir. 2007); Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005). In
addition, because a claimant’s RFC is a medical question, “the ALJ should obtain
medical evidence that addresses the claimant’s ability to function in the
workplace.” Hutsell, 259 F.3d at 712. The burden to prove the claimant's RFC
rests with the claimant and not the Commissioner. Pearsall, 274 F.3d at 1217.
1.

Credibility

In determining a claimant’s credibility, the ALJ must consider all evidence
relating to his complaints, including the claimant’s prior work record and third
party observations as to the claimant's daily activities; the duration, frequency and
intensity of the symptoms; any precipitating and aggravating factors; the dosage,
effectiveness and side effects of medication; and any functional restrictions.
Halverson v. Astrue, 600 F.3d 922, 931 (8th Cir. 2010); Polaski v. Heckler, 739
F.2d 1320, 1322 (8th Cir. 1984) (subsequent history omitted). While an ALJ need
not explicitly discuss each Polaski factor in her decision, she nevertheless must
acknowledge and consider these factors before discounting a claimant’s subjective
complaints. Wildman v. Astrue, 596 F.3d 959, 968 (8th Cir. 2010).
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When, on judicial review, a plaintiff contends that the ALJ failed to properly
consider his subjective complaints, “the duty of the court is to ascertain whether
the ALJ considered all of the evidence relevant to the plaintiff's complaints . . .
under the Polaski standards and whether the evidence so contradicts the plaintiff's
subjective complaints that the ALJ could discount his or her testimony as not
credible.” Masterson, 363 F.3d at 738-39. It is not enough that the record merely
contain inconsistencies. Instead, the ALJ must specifically demonstrate in her
decision that she considered all of the evidence. Id. at 738; see also Cline v.
Sullivan, 939 F.2d 560, 565 (8th Cir. 1991). Where an ALJ explicitly considers the
Polaski factors but then discredits a claimant’s complaints for good reason, the
decision should be upheld. Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir. 2001).
The determination of a claimant’s credibility is for the Commissioner, and not the
Court, to make. Tellez, 403 F.3d at 957; Pearsall, 274 F.3d at 1218.
A review of the ALJ’s decision shows her to have set out numerous
inconsistencies in the record upon which she found plaintiff’s subjective
complaints not to be entirely credible. First, the ALJ noted Hewitt’s symptoms to
improve with medication and that Hewitt himself and his wife reported such
improvement to Dr. Goldman. The record also shows that Hewitt’s reported
episodes of exacerbation occurred during periods when he was not on medication,
including times when he did not fill his prescriptions. See Roth v. Shalala, 45 F.3d
- 29 -

279, 282 (8th Cir. 1995) (impairments that are amenable to treatment do not
support a finding of disability). The ALJ also noted that Hewitt consistently
exhibited normal behavior during numerous mental status examinations. Indeed,
Dr. Goldman’s treatment notes reported no objective signs of psychological
problems, including during periods when Hewitt was not taking medication. See,
e.g., Halverson, 600 F.3d at 933 (claimant’s credibility properly discounted where
multiple examinations showed no abnormalities). The ALJ also noted Dr.
Goldman to consistently report that Hewitt experienced no side effects from his
medications. To the extent the record shows Hewitt to have nevertheless reported
that he experienced nausea with Strattera and weight gain and feeling “weird” with
Seroquel, the undersigned notes that these medications were discontinued after
Hewitt’s limited use of them and Hewitt made no complaints of side effects
thereafter. See Perkins v. Astrue, 648 F.3d 892, 901 (8th Cir. 2011) (adverse side
effects eliminated with changes in type of medication). Substantial evidence on
the record as a whole supports these findings.
Hewitt contends that the ALJ’s finding that he “did not work enough” was
an improper basis to discount his credibility inasmuch as his limited work history
is attributable to his mental illness. (Pltf.’s Brief, Doc. #15 at p. 13.) Hewitt’s
claim is without merit. In her written decision, the ALJ noted that Hewitt’s jobs as
a trash collector and doing factory work ended on account of their temporary
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nature and not on account of his impairments. (Tr. 18.) This is an appropriate
consideration in determining a claimant’s credibility. See, e.g., Black v. Apfel, 143
F.3d 383, 387 (8th Cir. 1998) (credibility offset by claimant being laid off from her
job instead of leaving on account of impairments). The ALJ also addressed
Hewitt’s two-year work history at McDonald’s and acknowledged the interpersonal problems Hewitt experienced while working there. Although the ALJ
considered Hewitt’s young age to make it “difficult to gauge whether his work
history in and of itself is suggestive of a lack of motivation to work” (Tr. 18), it
cannot be said that this consideration led to the ALJ finding that Hewitt did not
work enough, as argued by Hewitt.
Hewitt also argues that the ALJ overstated and misstated his daily activities
in her adverse credibility determination, specifically noting that the ALJ’s
statement that Hewitt watches television and “reads some during the day” (Tr. 18)
is an inaccurate assessment of his testimony. Hewitt fails to acknowledge,
however, that the ALJ also recognized that Hewitt testified that he had difficulty
with these activities and addressed these claimed difficulties in the context of
Hewitt’s ability to concentrate. Specifically, the ALJ found that, despite these
difficulties, Hewitt nevertheless was able to play video games – which requires a
level of concentration – and also demonstrated an adequate ability to concentrate
and pay attention during the fifty-minute administrative hearing. (Id.) The ALJ’s
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consideration of Hewitt’s claimed inability to concentrate with reading or
television in conjunction with his demonstrated ability to concentrate on other
tasks and during other activities was not improper. In addition, given the
numerous other inconsistencies in the record upon which the ALJ relied in finding
Hewitt’s credibility to be lacking, it cannot be said that the ALJ unduly relied on
her observations of Hewitt at the administrative hearing in making her credibility
determination. Lamp v. Astrue, 531 F.3d 629, 632 (8th Cir. 2008); Breyfogle v.
Colvin, No. 2:13-CV-59 CEJ, 2014 WL 4230898, at *13 (E.D. Mo. Aug. 26, 2014)
(citing Smith v. Shalala, 987 F.2d 1371, 1375 (8th Cir. 1993); Cline, 939 F.2d at
568).
Finally, Hewitt argues that the ALJ improperly discounted third party
statements made by Hewitt’s wife and sister-in-law. (See Tr. 191-93, 195-97.) In
her decision, the ALJ discounted these statements, finding them not to be
supported by the medical evidence of record nor rendered by persons medically
trained to make “exacting observations” as to the significance of signs, symptoms,
and behaviors. (Tr. 19.) The ALJ further determined not to credit these third party
witnesses given that, by their relationship with Hewitt, they may be influenced by
their affection for him and their natural tendency to agree with his claims. The
ALJ did not err in this determination. See Perkins, 648 F.3d at 901.

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Accordingly, in a manner consistent with and as required by Polaski, the
ALJ considered Hewitt’s subjective complaints on the basis of the entire record
and set out numerous inconsistencies that detracted from his credibility. Because
the ALJ’s determination not to credit Hewitt’s subjective complaints is supported
by good reasons and substantial evidence, the Court defers to this determination.
McDade v. Astrue, 720 F.3d 994, 998 (8th Cir. 2013); Renstrom v. Astrue, 680
F.3d 1057, 1065 (8th Cir. 2012).
2.

Opinion Evidence

Upon concluding that Hewitt’s subjective complaints were not entirely
credible, the ALJ turned to the September 2011 Mental MSS completed by
Hewitt’s treating psychiatrist, Dr. Goldman, and accorded it little weight, finding it
to be inconsistent with his own treatment notes and observations. The ALJ also
noted that Dr. Goldman’s opinion was based in part on Hewitt’s subjective report
that he suffered from bipolar disorder rather than on his diagnosis of the condition.
(Tr. 17-18.) For the following reasons, the ALJ did not err in according little
weight to Dr. Goldman’s opinion.
In evaluating opinion evidence, the Regulations require the ALJ to explain
in the decision the weight given to any opinions from treating sources, non-treating
sources, and non-examining sources. See 20 C.F.R. §§ 404.1527(d)(2)(ii),
416.927(d)(2)(ii). The Regulations require that more weight be given to the
- 33 -

opinions of treating physicians than other sources. 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). A treating physician's assessment of the nature and severity of a
claimant's impairments should be given controlling weight if the opinion is well
supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with other substantial evidence in the record. 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2); see also Forehand v. Barnhart, 364 F.3d 984, 986
(8th Cir. 2004). This is so because a treating physician has the best opportunity to
observe and evaluate a claimant's condition,
since these sources are likely to be the medical professionals most
able to provide a detailed, longitudinal picture of [a claimant's]
medical impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations.
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
When a treating physician's opinion is not given controlling weight, the
Commissioner must look to various factors in determining what weight to accord
the opinion, including the length of the treatment relationship and the frequency of
examination, the nature and extent of the treatment relationship, whether the
treating physician provides support for his findings, whether other evidence in the
record is consistent with the treating physician's findings, and the treating
physician's area of specialty. 20 C.F.R. §§ 404.1527(c), 416.927(c). The
- 34 -

Regulations further provide that the Commissioner “will always give good reasons
in [the] notice of determination or decision for the weight [given to the] treating
source's opinion.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
Here, the ALJ properly discounted Dr. Goldman’s September 2011 Mental
MSS inasmuch as it was inconsistent with his own treatment notes. This finding is
supported by substantial evidence on the record as a whole. As noted by the ALJ,
the record shows that throughout his treatment with Dr. Goldman, Hewitt
presented with consistently normal mental status examinations. Where a treating
psychiatrist’s contemporaneous treatment notes show a claimant to exhibit no
abnormalities during mental status examinations, an ALJ does not err in
discounting that psychiatrist’s opinion that the claimant suffers from disabling
symptoms. See Halverson, 600 F.3d at 930; see also Martise v. Astrue, 641 F.3d
909, 925 (8th Cir. 2011) (ALJ may justifiably discount treating physician’s opinion
when it is inconsistent with their own clinical treatment notes).
In addition, the ALJ noted that Dr. Goldman attributed many of Hewitt’s
limitations to bipolar disorder, which was an impairment that Hewitt subjectively
reported and was never diagnosed by Dr. Goldman or any other treatment provider
on or before the Mental MSS was completed in September 2011. A review of Dr.
Goldman’s treatment notes shows that, while he consistently provided Hewitt with
affirmative diagnoses of ADHD and GAD, his reference to bipolar disorder was to
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rule out the condition. As noted by the Eighth Circuit in Byes v. Astrue, 687 F.3d
913 (8th Cir. 2012), a “rule out” disorder is one that is suspected but not
confirmed. Id. at 916 n.3. The ALJ’s determination to discount Dr. Goldman’s
opinion to the extent it was based on Hewitt’s subjective reports and not on a
confirmed impairment was not error. Renstrom, 680 F.3d at 1064; Teague v.
Astrue, 638 F.3d 611, 616 (8th Cir. 2011).
Because the ALJ’s determination to accord little weight to Dr. Goldman’s
Mental MSS is supported by good reasons and substantial evidence, the Court
defers to this determination.
3.

Detailed RFC Findings

Hewitt’s claim that the ALJ failed to make detailed findings to support her
RFC assessment is without merit. A review of the ALJ’s decision shows her to
have thoroughly discussed specific medical facts, nonmedical evidence, and the
consistency of such evidence when viewed in light of the record as a whole and to
have assessed Hewitt’s RFC based on the relevant, credible evidence of record.
Accord SSR 96-8p, 1996 WL 374184, at *7 (Soc. Sec. Admin. July 2, 1996).
Because the record contains some medical evidence that supports the RFC and
substantial evidence on the record as a whole supports the determination, the ALJ
did not err. Baldwin v. Barnhart, 349 F.3d 549, 558 (8th Cir. 2003); Dykes v.
Apfel, 223 F.3d 865, 866-67 (8th Cir. 2000) (per curiam).
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D.

Past Relevant Work
Hewitt claims that the ALJ erred in her determination that he can perform

his past relevant work as a trash collector inasmuch as this work was performed for
only two weeks and thus cannot be considered “relevant work” under the
Regulations. Hewitt further argues that the ALJ failed to undergo the required
analysis relating to the mental and physical demands of past work to determine
whether Hewitt had the RFC to perform such work. Because any alleged error
committed by the ALJ in her finding that Hewitt is able to perform past relevant
work was harmless, at most, remand is not required and Hewitt’s argument to the
contrary must fail.
As an initial matter, the undersigned notes that the ALJ satisfied her duty to
examine the specific demands of Hewitt’s past work as a trash collector by
referring to its job description in the Dictionary of Occupational Titles (DOT).
(Tr. 19.) Young v. Astrue, 702 F.3d 489, 491 (8th Cir. 2013). The ALJ erred,
however, when she considered such work to be “past relevant work” under the
Regulations.
Generally, to be considered “past relevant work,” the work must have been
performed within the past fifteen years; it must have lasted long enough for the
claimant to have learned to do it; and it must have been “substantial gainful
activity.” Terrell v. Apfel, 147 F.3d 659, 661 (8th Cir. 1998); 20 C.F.R. §§
- 37 -

404.1565(a), 416.965(a). The DOT describes the job of trash collector as unskilled
work with a specific vocational preparation (SVP) time of 2, meaning that the time
frame within which the work can generally be learned is “[a]nything beyond short
demonstration up to and including 1 month.” DOT 381.687-018, 1991 WL
673258. See Fines v. Apfel, 149 F.3d 893, 895 (8th Cir. 1998) (discussing skill
levels according to the SVP). The Regulations define unskilled work as work “a
person can usually learn to do . . . in 30 days[.]” 20 C.F.R. §§ 404.1568(a),
416.968(a). The Hewitt here performed temporary work as a trash collector for
two weeks. There is nothing in the record demonstrating that two weeks was long
enough for Hewitt to have learned this unskilled work that, by definition, could
take up to thirty days to learn. Because there is no evidence in the record to
support the ALJ’s finding that Hewitt’s past work as a trash collector could be
considered “past relevant work” for purposes of determining disability, the ALJ
erred when she found that it did. For the following reasons, however, such error
was harmless.
Although the ALJ found at Step 4 of the analysis that Hewitt could perform
his “past relevant work” as a trash collector, she nevertheless continued in her
analysis and alternatively found at Step 5 that Hewitt could perform other work as
it exists in significant numbers in the national economy, and specifically, laundry
worker, cleaner, and kitchen helper. Hewitt makes no challenge to this Step 5
- 38 -

determination. Accordingly, to the extent the ALJ committed any error at Step 4
of the sequential analysis, such error was harmless inasmuch as the ALJ made an
alternative finding at Step 5 that Hewitt could perform other work in the national
economy. While this portion of the ALJ’s decision is not a model of clarity, it
demonstrates merely a deficiency in opinion-writing technique that had no bearing
on the result. Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008). As such, remand
is not warranted.
E.

Additional Evidence Submitted to the District Court
Attached to Hewitt’s Brief in Support of the Complaint are medical records

from Dr. Goldman dated May 9, June 1, and August 9, 2012. (See Pltf.’s Brief,
Doc. 15 at 19-21.) Hewitt avers that he obtained these records after the ALJ’s
decision and submitted them to the Appeals Council, but that they are not included
in the administrative record filed with this Court. Id. at 6. Hewitt does not contend
that the Appeals Council failed to review the records. Nor does he request that the
matter be remanded for determination as to whether the Appeals Council in fact
considered them. Instead, without argument or support, Hewitt appears to consider
these records as part of the evidence this Court must review in determining
whether the ALJ’s decision is supported by substantial evidence on the record as a
whole. If indeed the Appeals Council considered such evidence, Hewitt’s
assumption would be correct. Frankl v. Shalala, 47 F.3d 935, 939 (8th Cir. 1995);
- 39 -

Richmond v. Shalala, 23 F.3d 1441, 1444 (8th Cir. 1994).
The Commissioner addresses this new evidence and likewise appears to base
her argument on the assumption that this Court will review the evidence to
determine whether the ALJ’s decision continues to be supported by substantial
evidence. The Commissioner raises no argument that these records are improperly
before the Court nor questions the Hewitt’s representation that the records were
before the Appeals Council when it determined not to review the ALJ’s decision.
(See Deft.’s Brief, Doc. 23 at 7-8.)
A review of the administrative record shows the Appeals Council to have
acknowledged receipt of counsel’s brief summarizing Hewitt’s arguments for
appeal (see Tr. 1-5, 206-15), but there is no indication in the record that the
additional medical evidence itself was in fact received or reviewed by the Appeals
Council. Indeed, counsel’s brief to the Appeals Council is unclear in this regard,
given its reference to specific notes in the additional records, but also stating that
the “updated medical records will be submitted to the Appeals Council as soon as
possible” and “were not provided . . . in a timely manner . . . to allow us to include
them in this appeal.” (Tr. 206.) Nevertheless, upon review of the records
themselves, the undersigned finds that the ALJ’s decision continues to be
supported by substantial evidence on the record as a whole. Cf. Box v. Shalala, 52
F.3d 168, 172 (8th Cir. 1995) (upon consideration of new evidence that was not
- 40 -

reviewed in substance by Appeals Council, district court found the ALJ’s decision
to continue to be supported by substantial evidence).
In May and June 2012, Hewitt reported to Dr. Goldman that he felt his
condition was worsening. In May, Hewitt reported that Saphris made him feel
weird, and Dr. Goldman noted that Hewitt was taking only MPH. Cymbalta was
prescribed. Hewitt reported during his June appointment that he had an episode
the previous day wherein he became angry and “flipped out,” but did not break
things. Dr. Goldman added Geodon to Hewitt’s medication regimen. In August,
Dr. Goldman noted that Hewitt was taking no medication. Hewitt reported that
MPH and Cymbalta did not work and that Geodon made him feel weird. Samples
of Latuda were given. Notably, during each of these visits, Dr. Goldman observed
Hewitt’s mental status to be normal in all respects with normal appearance,
behavior, activity level, orientation, speech, affect, thought processes, insight,
judgment, cognition, and impulse control. At no time did Hewitt exhibit any
aggressiveness, psychosis, or risk to others. He further reported having no suicidal
or homicidal ideations, no delusions, and no hallucinations. In May, bipolar
disorder continued to be a condition to be ruled out. In June and August, however,
Dr. Goldman’s impressions included “R/O [rule out] Bipolar D/O – Bipolar D/O.”
(Pltf.’s Brief, Doc. 15 at 19-21.)

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Hewitt argues that his worsening symptoms and continued need for
medication adjustment as documented in these records show that his bipolar
disorder was not well-controlled. Hewitt also argues that these records show that
bipolar disorder was confirmed as a diagnosis in June 2012. As with the evidence
that was before the ALJ, however, Hewitt’s complaints of worsening symptoms
coincide with his failure to take medication as prescribed and, indeed, he was
taking no medication when he saw Dr. Goldman in August. Further, despite
Hewitt’s subjective claims of worsening symptoms during this period, his mental
status examinations continued to remain normal in all respects. Finally, to the
extent Hewitt contends that his bipolar disorder was confirmed as a diagnosed
condition in June 2012, such circumstance does not change the bases for the ALJ
to discount Dr. Goldman’s September 2011 Mental MSS given that at the time he
completed the Mental MSS, Dr. Goldman attributed Hewitt’s limitations in part to
bipolar disorder – a condition that was not diagnosed at that time and appeared to
be based only on Hewitt’s subjective complaints.
Accordingly, upon consideration of the new evidence submitted by Hewitt to
this Court, the Court finds the ALJ’s determination to continue to be supported by
substantial evidence on the record as a whole. While evidence in the record may
also support a different conclusion, a reasonable person could find the evidence
adequate to support the ALJ’s decision and it must therefore be affirmed. Gates v.
- 42 -

Astrue, 627 F.3d 1080, 1082 (8th Cir. 2010); see also Owen v. Astrue, 551 F.3d
792, 797-98 (8th Cir. 2008) (ALJ’s decision not to be reversed if it falls within
“available zone of choice”).

VI. Conclusion
When reviewing an adverse decision by the Commissioner, the Court’s task
is to determine whether the decision is supported by substantial evidence on the
record as a whole. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001). “Substantial
evidence is defined to include such relevant evidence as a reasonable mind would
find adequate to support the Commissioner's conclusion.” Id. Where substantial
evidence supports the Commissioner's decision, this Court may not reverse the
decision merely because substantial evidence exists in the record that would have
supported a contrary outcome or because another court could have decided the case
differently. Id.; see also Buckner, 646 F.3d 549, 556 (8th Cir. 2011); Gowell v.
Apfel, 242 F.3d 793, 796 (8th Cir. 2001).
For the reasons set out above on the claims raised by Hewitt on this appeal, a
reasonable mind can find the evidence of record sufficient to support the ALJ’s
determination that Hewitt was not disabled. Because substantial evidence on the
record as a whole supports the ALJ’s decision, it must be affirmed. Davis, 239

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F.3d at 966. This Court may not reverse the decision merely because substantial
evidence exists that may support a contrary outcome. Therefore,
IT IS HEREBY ORDERED that the decision of the Commissioner is
AFFIRMED and this case is DISMISSED.
A separate Judgment in accordance with Memorandum and Order is entered
herewith.
/s/ Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 20th day of March, 2015.

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