Schmid v. Colvin
MEMORANDUM OPINION: IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the Commissioner of Social Security is AFFIRMED. The court will issue a judgment consistent with this opinion. Signed by Magistrate Judge Shirley P. Mensah on 9/24/14. (ARL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JENNIFER L. SCHMID,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Case No. 4:13-CV-1429-SPM
The following opinion is intended to be the opinion of the court judicially reviewing the
Commissioner’s denial of an application for disability insurance benefits under Title II of the
Social Security Act, 42 U.S.C. §§ 401 et seq., filed by Plaintiff, Jennifer L. Schmid. This court
has jurisdiction because 42 U.S.C. § 405(g) provides for judicial review of a “final decision” of
the Commissioner of the Social Security Administration and because the parties have consented
to have a United States Magistrate Judge dispose of this case, including entry of final judgment.
(Doc. 7). For the reasons stated below, the Commissioner’s decision will be affirmed.
Plaintiff Jennifer L. Schmid filed for benefits under the Social Security Act on July 2010,
claiming disability due to lower back disk fusion, bulging disk, spondylolisthesis, a heart
condition, depression, and anxiety. (Tr. 214-15, 247). Plaintiff originally alleged that she had
been disabled since October 22, 2009, but she amended her alleged onset date to January 27,
2010. (Tr. 242, 247). Plaintiff’s application was initially denied, and she filed a request for a
hearing by an administrative law judge (“ALJ”). (Tr. 162-67, 171). On April 3, 2012, after a
hearing, the ALJ issued an unfavorable decision. (Tr. 109-22). Plaintiff requested review by the
Social Security Administration’s Appeals Council and submitted additional evidence in support
of her request. (Tr. 6-108). After considering the additional evidence, the Appeals Council
denied her request on May 24, 2013. (Tr. 1-5). Thus, the ALJ’s decision stands as the final
decision of the Commissioner.
STANDARD FOR DETERMINING DISABILITY UNDER THE SOCIAL SECURITY ACT
To be eligible for benefits under the Social Security Act, a plaintiff must prove he or she
is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Sec. of Health
& Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Social Security Act defines as disabled
a person who is “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); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). The
impairment must be “of such severity that [the claimant] 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, regardless of whether such
work exists in the immediate area in which he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for work.” 42 U.S.C. §423(d)(2)(A).
To determine whether a claimant is disabled, the Commissioner engages in a five-step
evaluation process. 20 C.F.R. §§ 404.1520(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th
Cir. 2011) (discussing the five-step process). At Step One, the Commissioner determines
whether the claimant is currently engaging in “substantial gainful activity”; if so, then he is not
disabled. 20 C.F.R. §§ 404.1520(a)(4)(i); McCoy, 648 F.3d at 611. At Step Two, the
Commissioner determines whether the claimant has a severe impairment, which is “any
impairment or combination of impairments which significantly limits [the claimant’s] physical
or mental ability to do basic work activities”; if the claimant does not have a severe impairment,
he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c); McCoy, 648 F.3d at 611. At
Step Three, the Commissioner evaluates whether the claimant’s impairment meets or equals one
of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “listings”). 20
C.F.R. §§ 404.1520(a)(4)(iii); McCoy, 648 F.3d at 611. If the claimant has such an impairment,
the Commissioner will find the claimant disabled; if not, the Commissioner proceeds with the
rest of the five-step process. 20 C.F.R. § 404.1520(d); McCoy, 648 F.3d at 611.
Prior to Step Four, the Commissioner must assess the claimant’s “residual functional
capacity” (“RFC”), which is “the most a claimant can do despite [his or her] limitations.”
Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)); see also
20 C.F.R. §§ 404.1520(e). At Step Four, the Commissioner determines whether the claimant
can return to his past relevant work, by comparing the claimant’s RFC with the physical and
mental demands of the claimant’s past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv),
404.1520(f); McCoy, 648 F.3d at 611. If the claimant can perform his past relevant work, he is
not disabled; if the claimant cannot, the analysis proceeds to the next step. Id. At Step Five, the
Commissioner considers the claimant’s RFC, age, education, and work experience to determine
whether the claimant can make an adjustment to other work in the national economy; if the
claimant cannot make an adjustment to other work, the claimant will be found disabled. 20
C.F.R. §§ 404.1520(a)(4)(v); McCoy, 648 F.3d at 611.
Through Step Four, the burden remains with the claimant to prove that he is disabled.
Moore, 572 F.3d at 523. At Step Five, the burden shifts to the Commissioner to establish that,
given the claimant’s age, education, and work experience, there are a significant number of other
jobs in the national economy that the claimant can perform. Id.; Brock v. Astrue, 674 F.3d 1062,
1064 (8th Cir. 2012).
THE ALJ’S DECISION
The ALJ found that Plaintiff meets the insured status requirements of the Social Security
Act through December 31, 2014; has not engaged in substantial gainful activity since October
22, 2009; has the severe impairments of arthritis of the lumbar spine with residual effects of
fusion surgery, obesity, and aortic stenosis; does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, App’x 1; has the residual functional capacity to perform the full
range of sedentary work as defined in 20 C.F.R. §404.1567(a); and is capable of performing her
past relevant work as a data entry clerk, personal assistant, receptionist, and order puller. Based
on these findings, the ALJ ruled that Plaintiff has not been under a disability as defined by the
Social Security Act. (Tr. 112-118).
In appealing the Commissioner’s decision, Plaintiff argues that (1) the Commissioner
erred by failing to find that Plaintiff’s depression and anxiety were severe impairments,
particularly in light of new evidence submitted to the Appeals Council; and (2) the
Commissioner failed to fully develop the record regarding Plaintiff’s past relevant work.
A. Standard for Judicial Review
The decision of the Commissioner must be affirmed if it complies with the relevant legal
requirements and is supported by substantial evidence on the record as a whole. See 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); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). “Substantial evidence
‘is less than a preponderance, but enough that a reasonable mind might accept as adequate to
support a conclusion.’” Renstrom v. Astrue, 680 F.3d 1057, 1063 (8th Cir. 2012) (quoting
Moore, 572 F.3d at 522). In determining whether substantial evidence supports the
Commissioner’s decision, the court considers both evidence that supports that decision and
evidence that detracts from that decision. Id. However, the court “‘do[es] not reweigh the
evidence presented to the ALJ, and [it] defer[s] to the ALJ’s determinations regarding the
credibility of testimony, as long as those determinations are supported by good reasons and
substantial evidence.’” Id. at 1064 (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.
2006)). “‘If, after reviewing the record, the court finds it is possible to draw two inconsistent
positions from the evidence and one of those positions represents the ALJ’s findings, the court
must affirm the ALJ’s decision.’” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting
Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)).
B. Substantial Evidence Supports the Commissioner’s Finding That
Plaintiff’s Depression and Anxiety Are Not Severe Impairments
Plaintiff’s first argument is that the Commissioner erred by not including depression and
anxiety among Plaintiff’s severe impairments, particularly in light of new evidence submitted to
the Appeals Council. Where, as here, the claimant submits additional evidence after the ALJ’s
decision is rendered, and the Appeals Council considers that evidence but denies review, the
court “must determine whether the ALJ’s decision was supported by substantial evidence on the
record as a whole, including the new evidence.” Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir.
2007). Thus, the court will consider both the evidence before the ALJ and the evidence
submitted to the Appeals Council.
To show that an impairment is severe, Plaintiff must establish (1) a medically
determinable impairment or combination of impairments, (2) that significantly limits her
physical or mental ability to perform basic work activities, without regard to age, education, or
work experience. See C.F.R. §§ 404.1520(a)(4)(ii),(c); 404.1521(a). Although the requirement of
severity is not an “onerous requirement,” it is “not a toothless standard.” Kirby v. Astrue, 500
F.3d 705, 707-08 (8th Cir. 2007).
When considering the severity of mental impairments, the Commissioner should consider
four functional areas: “Activities of daily living; social functioning; concentration, persistence,
or pace; and episodes of decompensation.” 20 C.F.R. § 404.1520a(c)(3). When the degree of
limitation in the first three functional areas is rated as “none” or “mild,” and the finding in the
fourth area is “none,” the Commissioner will generally conclude the impairment is not severe,
unless the evidence otherwise indicates there is more than a minimal limitation in the ability to
do basic work activities. Id. § 404.1520a(d)(1).
Here, the ALJ acknowledged in his decision that Plaintiff had a medically determinable
impairment of depression and had seen a counselor, but he found that Plaintiff’s depression did
not cause more than minimal limitation in her ability to perform basic mental work activities.
(Tr. 114). He noted that she had never been evaluated by a psychiatrist or psychologist, that the
record showed that her symptoms were variable, and that examination findings generally did not
show depression. (Tr. 115). The ALJ also examined the four functional areas and found that she
had only mild limitations in activities of daily living; social functioning; and concentration,
persistence, or pace; and had experienced no episodes of decompensation of extended duration.
An examination of the record shows that the ALJ’s conclusion was supported by
substantial evidence. At the hearing, Plaintiff alleged that in addition to pain from her
fibromyalgia and fatigue from her heart condition, she had depression and anxiety, had the
symptom of crying, and sometimes felt like she wanted to die. (Tr. 143). However, the records
dated between Plaintiff’s alleged onset date (January 27, 2010) and the date of the ALJ’s
decision (April 3, 2012) show that although Plaintiff sometimes complained to her treatment
providers of anxiety and depression, those conditions were generally well managed with
medication and did not cause significant functional limitations.
In January 2010, Plaintiff complained of depression and anxiety, and she was prescribed
Celexa (citalopram). (Tr. 311-12). She returned to the clinic at least ten times for various
ailments in 2010, and mental symptoms were rarely mentioned and were sometimes specifically
noted to be absent. (Tr. 294-312). In November 2010, notes state that her medication had helped
her, she had no anxiety or depression, and her mood was euthymic. (Tr. 297-98).
At various points in 2011 and 2012, Plaintiff did report symptoms of depression and
anxiety; however, the record indicates that her symptoms were generally controlled when she
was on medication. Plaintiff’s most significant reports of depression symptoms were in early
2011, a period in which she had been taken off of Celexa by her pain doctor. (Tr. 352-54, 34649, 382). During that period, Plaintiff cried in her treatment provider’s office, was observed to
have mood abnormalities, and was diagnosed with moderate recurrent major depression. (Tr.
347-49, 352-54, 382). However, at visits in March and April 2011 (after she restarted Celexa),
her review of symptoms was negative for depression (Tr. 482-83, 485); at visits in May, July,
August, September, October, and December 2011, her mood was “appropriate” or “pleasant”
(Tr. 487, 489, 492, 495, 497, 563); at visits in in July and August 2011 she reported that she was
not having any more panic attacks (Tr. 341, 556); at a visit in August 2011 she reported that her
mood had improved with Celexa and she was not crying anymore (Tr. 556); and at a visit in
November 2011 she reported that she was calmer and crying less on Celexa (Tr. 563). Although
Plaintiff reported depression, anxiety, stress, or crying at some visits in mid-to-late 2011 (Tr.
337-38, 548, 561) and was diagnosed in February 2012 with anxiety state unspecified (Tr. 577),
she did not report significant functional limitations from her mental conditions at these visits, nor
did her treatment providers note any. Indeed, even in Plaintiff’s own testimony, she did not
explain how her depression and anxiety limited her ability to function.
The above evidence supports the ALJ’s determination that Plaintiff’s mental impairments
were not severe. See Kirby, 500 F.3d at 707-08 (8th Cir. 2007). (“An impairment is not severe if
it amounts only to a slight abnormality that would not significantly limit the claimant’s physical
or mental ability to do basic work activities.”).
The evidence submitted to the Appeals Council that was dated after the ALJ’s decision
does not alter the court’s conclusion. “[M]edical evidence obtained after an ALJ decision is
material if it relates to the claimant’s condition on or before the date of the ALJ’s decision.”
Cunningham v. Apfel, 222 F.3d 496, 502 (8th Cir. 2000) (finding that evidence from a treating
psychologist dated after the relevant time period was material where the psychologist stated that
the plaintiff had been disabled since the plaintiff’s alleged onset date). Plaintiff submitted records
showing that from May 2012 to October 2012, she was seen at Pathways Community Behavioral
Healthcare and by her nurse practitioner for treatment of depression and anxiety. (Tr. 8-60, 6566, 90-97). During this period, Plaintiff was diagnosed with major depressive disorder, recurrent;
borderline personality disorder; generalized anxiety disorder; and panic disorder with
agoraphobia (Tr. 11, 41, 50); was assigned Global Assessment of Functioning scores of 47 and
501 (Tr. 11, 41); met with a counselor about once a week to discuss her stressors and strategies
for relaxation (Tr. 19-56); and was observed to have a depressed or anxious mood and related
symptoms at times (Tr. 9, 19, 23, 25, 27, 29, 53). However, as the Appeals Council noted, these
records describe Plaintiff’s condition after the date of the ALJ’s decision, and do not show that
her mental impairments were severe during the relevant time period (prior to April 3, 2012). (Tr.
2). Notably, in these records, none of Plaintiff’s treatment providers indicated that they were
describing a condition that had existed during the relevant disability period, nor did they suggest
that Plaintiff’s depression and anxiety caused any work-related limitations during the relevant
disability period. To the extent that these records suggest that Plaintiff’s mental condition
worsened after April 3, 2012, Plaintiff’s recourse is to file a new application for benefits with
later disability onset date. See, e.g., Tarwater v. Astrue, No. 4:10CV1974 LMB, 2012 WL
381783, at *18 (Feb. 6, 2012) (finding substantial evidence supported the Commissioner’s
decision despite the existence of treatment notes dated shortly after the ALJ’s decision
suggesting that Plaintiff’s mental condition had worsened; stating, “If plaintiff’s condition
worsens, plaintiff’s recourse is to file a new application for benefits, alleging an onset of
disability after the date of the ALJ’s decision in this case.”).
In sum, in light of the contemporary evidence from the relevant time period that shows
that Plaintiff’s mental impairments were mild and controlled by medication during the relevant
The Global Assessment of Functioning Scale (GAF) is a psychological assessment tool wherein
an examiner is to “[c]onsider psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness”; it does “not include impairment in functioning
due to physical (or environmental) limitations.” Diagnostic and Statistical Manual of Mental
Disorders (DSM-IV), 32 (4th ed. 1994). A GAF score between 41 and 50 indicates “[s]erious
symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any
serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep
a job).” DSM-IV 32.
time period, the court finds that the ALJ’s conclusion is supported by substantial evidence, even
when the new evidence submitted to the Appeals Council is considered.
C. The ALJ Sufficiently Developed the Record Regarding Plaintiff’s Past
Plaintiff’s second argument is that the ALJ failed to sufficiently develop the record
regarding Plaintiff’s past relevant work. At Step Four of the five-step disability evaluation
process, the ALJ was required to evaluate whether, with her RFC, Plaintiff could perform her
past relevant work. See Wagner v. Astrue, 499 F.3d 842, 853 (8th Cir. 2007). Plaintiff is not
disabled if she can perform either “[t]he actual functional demands and job duties of a particular
past relevant job” or “[t]he functional demands and job duties of the occupation as generally
required by employers throughout the national economy.” Id.; see also Lowe v. Apfel, 226 F.3d
969, 973 (8th Cir. 2000).
The Eighth Circuit has consistently held that an “‘ALJ has a duty to fully investigate and
make explicit findings as to the physical and mental demands of a claimant’s past relevant work
and to compare that with what the claimant herself is capable of doing before [the ALJ]
determines that she is able to perform her past relevant work.’” Young v. Astrue, 702 F.3d 489,
491 (8th Cir. 2013) (quoting Nimick v. Sec’y of Health & Human Servs., 887 F.2d 864, 866 (8th
Cir. 1989)); see also Groeper v. Sullivan, 932 F.2d 1234, 1238 (8th Cir. 1991). In investigating
the demands of the claimant’s past relevant work, the ALJ may rely on the claimant’s description
of her actual job, or the ALJ may look to how the job is performed in the national economy. See
Stephens v. Shalala, 50 F.3d 538, 542 (8th Cir. 1995); Wagner, 499 F.3d at 853; 20 C.F.R.
§ 404.1560(b)(2). The testimony of a Vocational Expert may be used at this step to obtain
relevant evidence of the physical and mental demands of a claimant’s past relevant work, “either
as the claimant actually performed it or as generally performed in the national economy.” 20
C.F.R. § 404.1560(b)(2). Such testimony “may be helpful in supplementing or evaluating the
accuracy of the claimant’s description of [her] past work.” Id.
Here, the record regarding Plaintiff’s past work was well developed, and the ALJ made
the required findings regarding that work. The Vocational Expert reviewed Plaintiff’s vocational
evidence and testified at the hearing that that Plaintiff’s past work included work as a data entry
clerk (sedentary, semi-skilled, SVP 42), personal assistant (sedentary, skilled, SVP 7 as generally
performed and SVP 6 as performed by Plaintiff), and receptionist (sedentary, semi-skilled, SVP
3). (Tr. 153). In addition, in her Work History Report, Plaintiff provided descriptions of those
jobs that were consistent with the requirements of sedentary work. (Tr. 256-58).3 The ALJ then
compared Plaintiff’s RFC (an ability to perform the full range of sedentary work) with the
demands of Plaintiff’s past relevant work (sedentary), and properly determined that she could
perform her past work as a data entry clerk, personal assistant, and receptionist. (Tr. 118).
Plaintiff offers no explanation of why this analysis was insufficient.
The SVP (“specific vocational preparation”) level for a particular job is the “amount of lapsed
time required by a typical worker to learn the techniques, acquire the information, and develop
the facility needed for average performance in a specific job-worker situation.” Dictionary of
Occupational Titles (DOT), App’x. C, 1991 WL 688702. A job with an SVP of 4 takes three to
six months to learn; a job with an SVP of 6 takes one to two years to learn; and a job with an
SVP of 3 takes one to three months to learn. Id. Plaintiff does not argue that her past work did
not satisfy these time requirements, and her Work History Report is consistent with a finding that
she did. (Tr. 255).
As to the data entry clerk and personal assistant jobs, Plaintiff indicated that these jobs involved
lifting less than ten pounds at a time and walking or standing at most two hours each day. (Tr.
255-57); 20 C.F.R. § 404.1567(a) (“Sedentary work involves lifting no more than 10 pounds at a
time . . . Although a sedentary job is defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out job duties.”); Social Security Ruling 8310, 1983 WL 31251, at *5 (stating that sedentary work generally involves standing or walking no
more than about two hours out of an eight-hour day). Plaintiff’s description of the receptionist
job is somewhat less clear, as she indicated that she stood and walked “as needed.” (Tr. 258).
However, the Vocational Expert testified that the job of receptionist is sedentary. (Tr. 153); see
also DOT No. 237.367-038.
The ALJ also found that Plaintiff could perform past relevant work as an “order filler,”
which he said was a sedentary job. (Tr. 118). As Plaintiff correctly points out, neither the
Vocational Expert’s testimony nor Plaintiff’s Work History Report contains a sedentary job
matching this description. However, in light of the ALJ’s well-supported findings that Plaintiff
could perform three other past jobs, I find the ALJ’s error in identifying the order filler job had
no effect on the outcome of the case and does not require reversal. See Brueggemann v.
Barnhart, 348 F.3d 689, 695 (8th Cir. 2003) (applying harmless error analysis and noting that the
standard is “whether the ALJ would have reached the same decision denying benefits” even
absent the error); Senne v. Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999) (“We have consistently
held that a deficiency in opinion-writing is not a sufficient reason for setting aside an
administrative finding where the deficiency had no practical effect on the outcome of the case.”).
For all of the foregoing reasons, the Commissioner’s decision is supported by substantial
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the
Commissioner of Social Security is AFFIRMED. The court will issue a judgment consistent
with this opinion.
/s/Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 24th day of September, 2014.
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