Chismarich v. Colvin

Filing 13

MEMORANDUM AND ORDER. (See Full Order.) For all of the foregoing reasons, the ALJ committed no legal error in his determination that Chismarich was not under a disability since his alleged onset date. Accordingly, IT IS HEREBY ORDERED that that the decision of the Commissioner is affirmed, and Stephen P. Chismarich's complaint is dismissed with prejudice. A separate Judgment is entered herewith. Signed by District Judge Catherine D. Perry on 2/6/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STEPHEN P. CHISMARICH,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Defendant.

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No. 4:15CV1575 CDP

MEMORANDUM AND ORDER
Plaintiff Stephen P. Chismarich brings this action under 42 U.S.C. § 405
seeking judicial review of the Commissioner’s final decision denying his claim for
disability insurance benefits (DIB) under Title II of the Social Security Act, 42
U.S.C. §§ 401, et seq. Because Chismarich’s allegations of error fail, I will affirm
the Commissioner’s decision.
I. Procedural History
On July 20, 2012, the Social Security Administration (SSA) denied
Chismarich’s June 2012 application for DIB, in which Chismarich claimed he
became disabled on July 31, 2010, because of bipolar disorder, drug and alcohol
1

On January 20, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security.
Under Fed. R. Civ. P. 25(d), Berryhill is automatically substituted for former Acting
Commissioner Carolyn W. Colvin as defendant in this action. No further action needs to be
taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
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addiction, knee injury, and attention deficit hypertension disorder. Chismarich
later amended his alleged onset date to August 1, 2012. At Chismarich’s request,
hearings were held before an administrative law judge (ALJ) on February 13 and
April 30, 2014, at which Chismarich, a medical expert, and two vocational experts
testified. On May 30, 2014, the ALJ denied Chismarich’s claim for benefits,
finding vocational expert testimony to support a finding that he could perform
work as it exists in significant numbers in the national economy. On September
12, 2015, the Appeals Council denied Chismarich’s request for review of the
ALJ’s decision. The ALJ’s decision is thus the final decision of the
Commissioner. 42 U.S.C. § 405(g).
In this action for judicial review, Chismarich asserts that the ALJ committed
legal error in three respects, namely, that his residual functional capacity (RFC)
assessment is inconsistent with other findings in his decision; that he did not
resolve conflicts between vocational expert testimony and the Dictionary of
Occupational Titles (DOT); and that he failed to consider the opinion of
Chismarich’s spouse, who is a doctor, to be a medical opinion. Chismarich
requests that the matter be reversed and remanded for an award of benefits or for
further proceedings.
II. Legal Standard
To be eligible for DIB under the Social Security Act, Chismarich must prove
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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). 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).
To determine whether a claimant is disabled, the Commissioner engages in a
five-step evaluation process. See 20 C.F.R. § 404.1520; 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
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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. Finally, 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.
I must affirm the Commissioner’s decision if it not based on legal error and
if there is substantial evidence on the record as a whole to support the conclusion.
Wildman v. Astrue, 596 F.3d 959, 963 (8th Cir. 2010). Substantial evidence is less
than a preponderance but enough that a reasonable person would find it adequate to
support the conclusion. Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
Determining whether there is substantial evidence requires scrutinizing analysis.
Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007).
III. The ALJ’s Decision
The ALJ found Chismarich to meet the insured status requirements of the
Social Security Act through September 30, 2015. He further found Chismarich not
to have engaged in substantial gainful activity since August 1, 2012, the alleged
onset date of disability. The ALJ found Chismarich’s residuals of left knee
surgery, bipolar disorder, history of learning disorder, and mood disorder to be
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severe impairments but not to meet or medically equal an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ then assessed Chismarich’s RFC and determined him to have
exertional and non-exertional limitations, including:
The claimant is able to understand, remember, and carry out at least
simple instructions and non-detailed tasks; can respond appropriately
to supervisors and co-workers in a task-oriented setting where contact
with others is casual and infrequent; can adapt to routine and simple
work changes on an infrequent basis; can perform work at a normal
pace without production quotas; should not work in a setting which
includes constant, regular contact with the general public; and should
not perform work which includes more than infrequent handling of
customer complaints.
(Tr. 18.) The ALJ found Chismarich’s RFC to preclude performance of his past
relevant work as a shipping clerk, commercial driver, or service coordinator.
Considering Chismarich’s RFC, age, education, and work experience, the ALJ
determined vocational expert testimony to support a finding that Chismarich could
perform other work as it exists in significant numbers in the national economy, and
specifically as a cleaner/janitor and mail clerk. The ALJ thus found Chismarich
not to be under a disability at any time from August 1, 2012, through the date of
the decision.
IV. Discussion
When conducting judicial review of an ALJ’s decision to deny benefits, I
must determine whether the decision is based on legal error, and whether the
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findings of fact are supported by substantial evidence on the record as a whole.
Wildman, 596 F.3d at 963. As noted above, Chismarich asserts only that the ALJ
committed legal error in denying benefits. Accordingly, while I have reviewed the
administrative record in its entirety, a full factual summary of the record is not
necessary for me to address Chismarich’s claims. Specific facts relevant to
disposition of the claims are included in this discussion.
A.

Spouse’s Third Party Function Report
Chismarich’s spouse is a pediatrician at St. John’s Mercy Medical Center.

This fact is noted in the record in summaries of Chismarich’s social and family
history made during various psychiatric evaluations and admission assessments in
2008. (See Tr. 382, 396, 453.) There is no evidence in the record to suggest that
Chismarich received any medical treatment from, was medically evaluated by, or
had a patient-physician relationship with his spouse in any way.
On January 1, 2014, Dr. Chismarich completed a Third Party Function
Report for disability determinations wherein she identified her relationship to the
claimant as “spouse.” (Tr. 262.) Based on her personal observations, Dr.
Chismarich provided detailed information about her husband’s daily activities,
including personal care, meal preparation, house and yard work, ability to get
around, ability to shop, money management, hobbies and interests, and social
activities. She also provided detailed information regarding the observed effects of
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her husband’s physical and mental impairments, including limited physical
movement because of his knee injury, poor memory, difficulty learning new
information, poor task focus, and irritability. Nowhere in this report did she
identify herself as a physician or indicate that she was rendering an opinion in her
professional capacity. (Tr. 262-70.)
Evidence obtained from persons who have not seen a claimant in a
professional capacity in connection with the claimant’s impairments is considered
evidence from “non-medical sources.” SSR 06-03p, 2006 WL 2329939, at *6
(Aug. 9, 2006); Durden v. Colvin, 191 F. Supp. 3d 429 (M.D. Pa. 2016). Spouses
are considered to be non-medical sources. SSR 06-03p, 2006 WL 2329939, at *6;
Durden, 191 F. Supp. 3d 429. While the Regulations permit an ALJ to consider
evidence from these sources to show the severity of a claimant’s impairment(s) and
how it affects the claimant’s ability to work, see 20 C.F.R. § 404.1513(d), the
factors for weighing opinion evidence do not apply.2 SSR 06-03p, 2006 WL
2329939, at *4-5. Instead, the ALJ may consider the nature and extent of the
relationship between the source and the claimant, whether the evidence is
consistent with other evidence, and any other factors that tend to support or refute
the evidence. Id. at *6.
In his written opinion here, the ALJ considered the Third Party Function
2

These factors are set out at 20 C.F.R. § 404.1527(c).
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Report as evidence showing the severity of Chismarich’s impairments and how
they affect his ability to function. (Tr. 25.) The ALJ’s treatment of the report was
proper under 20 C.F.R. § 404.1513(d) given that Dr. Chismarich completed the
report in her capacity as a spouse and not in her professional capacity, which
rendered it to be evidence from a non-medical source. Accordingly, the ALJ did
not err in failing to consider the report under the § 404.1527(c) factors related to
medical opinion evidence, and Chismarich’s claim of error fails.
B.

Consistency in Sequential Analysis
Chismarich contends that the ALJ’s decision is internally inconsistent

because at Step 3 of the five-step analysis, the ALJ stated that Chismarich
reportedly had some difficulty remembering doctor’s appointments and following
written instructions, needed help from others, and needed spoken instructions
restated or written down (Tr. 17), but did not include these specific limitations in
the RFC analysis at Step 4. In Lacroix v. Barnhart, 465 F.3d 881 (8th Cir.2006),
the claimant made a similar argument, that is, that the ALJ's Step 4 RFC analysis
was inconsistent with the earlier determination made at Step 2 that claimant’s
impairments significantly limited her functional abilities. The Eighth Circuit
soundly rejected this argument, stating that “[e]ach step in the disability
determination entails a separate analysis and legal standard.” Id. at 888 n.3.
Because Chismarich bases his argument on a contention that the ALJ's analysis
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regarding his mental impairments is inconsistent between Step 3 and Step 4 of the
sequential analysis, his argument must be rejected on the basis of the Eighth
Circuit's reasoning in Lacroix.
To the extent Chismarich argues that permitting this inconsistency runs
counter to the Regulations’ intent to provide consistency in the evaluation of
mental impairments as stated in 20 C.F.R. § 404.1520a, Chismarich’s argument is
misplaced. In cases involving mental impairments, § 404.1520a requires the SSA
to use a “special technique” at Steps 2 and 3 of the sequential analysis to evaluate
the severity of a claimant's mental impairments and determine whether they meet
or equal a listing. 20 C.F.R. § 404.1520a(d); SSR 96-8p, 1996 WL 374184 (July 2,
1996). Under this technique, an ALJ is required at these steps to rate the degree of
a claimant’s functional limitations in four broad areas of functioning and to
incorporate in his decision pertinent findings and conclusions based on the
technique. 20 C.F.R. § 404.1520a(c)-(e). The ALJ did so here. (Tr. 16-17.)
While the Regulations state that use of the technique helps the SSA to organize and
present findings “in a clear, concise, and consistent manner,” 20 C.F.R. §
404.1520a(a)(3), it applies to only Steps 2 and 3 of the five-step sequential
analysis. It is not used as part of the RFC assessment.
The psychiatric review technique described in 20 CFR
404.1520a . . . requires adjudicators to assess an individual's
limitations and restrictions from a mental impairment(s) in categories
identified in the “paragraph B” and “paragraph C” criteria of the adult
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mental disorders listings. The adjudicator must remember that the
limitations identified in the “paragraph B” and “paragraph C”
criteria are not an RFC assessment but are used to rate the severity of
mental impairment(s) at steps 2 and 3 of the sequential evaluation
process. The mental RFC assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment by
itemizing various functions contained in the broad categories found in
paragraphs B and C of the adult mental disorders listings in 12.00 of
the Listing of Impairments[.]
SSR 96-8p, 1996 WL 374184, at *4 (emphasis added). A claimant’s RFC is
assessed after use of the technique is completed. See 20 C.F.R. § 404.1520a(c)(3).
An ALJ’s RFC determination requires a more detailed assessment than the
special technique provides, and indeed is a “multidimensional description” that
represents “the most that an individual can do despite his or her limitations or
restrictions.” 20 C.F.R. Part 404, Subpt. P, App. 1, § 12.00A; 1996 WL 374184, at
*4. See also 20 C.F.R. § 404.1545(a). With this more searching analysis, an RFC
determination is not flawed “simply because it does not reflexively recite the
ALJ’s prior finding” from an earlier step in the analysis. Gann v. Colvin, 92 F.
Supp. 3d 857, 885 (N.D. Iowa 2015).
Accordingly, the ALJ’s failure to include specific Step 3 findings in his RFC
assessment did not render his decision inconsistent. Because the ALJ committed
no legal error, Chismarich’s claim to the contrary fails.
C.

Vocational Expert Testimony
At the hearing on April 30, 2014, the ALJ posed the following hypothetical
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to the vocational expert:
. . . [T]his hypothetical claimant could lift and carry 20 pounds
occasionally, 10 pounds frequently; could stand or walk for six hours
out of eight; sit for six; could occasionally stoop, kneel and crouch;
pushing and pulling with the legs was limited to occasional use foot
controls on the left.
And, in addition, this hypothetical claimant was able to
understand, remember and carry out at least simple instructions and
non-detailed tasks; can respond appropriately to supervisors and coworkers in a task-oriented setting where contact with others was
casual and infrequent.
Can adapt to routine/simple work changes on an infrequent
basis. Can perform work at a normal pace without production quotas;
should not work in a setting which includes constant or regular
contact with the general public and should not perform work which
includes more than infrequent handling of customer complaints.
(Tr. 73-74.) In response, the expert testified that such a person could perform
unskilled, light work as a cleaner/janitor, listed at DOT 323.687-014; and as an
interoffice mail clerk, listed at DOT 209.687-026. The ALJ asked the expert if his
testimony was consistent with the DOT and the Selected Characteristics of
Occupations (SCO), to which the expert responded that it was. (Tr. 74-75.)
In his written decision, the ALJ found that the expert’s testimony was
consistent with the information in the DOT and the SCO, and he relied on this
testimony to support his finding that Chismarich could perform work as a cleaner/
janitor and as a mail clerk. (Tr. 27.) Chismarich argues, however, that the DOT
describes both jobs as requiring functioning at a greater level than described in the
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RFC and hypothetical question, and that the ALJ erred when he failed to resolve
this conflict between the vocational expert testimony and the DOT.
An ALJ has a duty to make sufficient inquiry to determine whether conflict
exists between vocational expert testimony and the DOT, and to resolve any
conflict. See generally Kemp ex rel. Kemp v. Colvin, 743 F.3d 630 (8th Cir. 2014).
The failure to do so precludes an ALJ from relying on vocational expert testimony
to find a claimant not disabled. Id. at 633. For the following reasons, the ALJ
satisfied his duty here and did not err.
1.

Mail Clerk

Under DOT 209.687-026, a mail clerk is defined as having a reasoning level
of 3, which involves applying “common sense understanding to carry out
instructions furnished in written, oral, or diagrammatic form”; and a language level
of 2, which involves reading instructions. 1991 WL 671813. Chismarich argues
that these requirements exceed his RFC and the hypothetical question posed to the
vocational expert to the extent that they limit him to simple instructions and nondetailed tasks.
It is well established that the DOT describes the upper limits of skills for all
jobs in a given occupational category. DOT definitions are “simply generic job
descriptions that offer the approximate maximum requirements for each position,
rather than their range.” Page v. Astrue, 484 F.3d 1040, 1045 (8th Cir. 2007). Its
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descriptions are not meant to be read as requirements of every job within a
category. Id.
The Eighth Circuit has repeatedly held that any potential inconsistency
between a reasoning level of 3 and the ability to follow only simple instructions
and perform non-detailed tasks is not a conflict that an ALJ must resolve. Renfrow
v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007); Hillier v. Social Sec. Admin., 486
F.3d 359, 367 (8th Cir. 2007). See also Welsh v. Colvin, 765 F.3d 926, 930 8th
Cir. 2014); Filbert v. Colvin, No. 4:14-CV-00209-JAR, 2015 WL 1474873, at *11
(E.D. Mo. Mar. 31, 2015).
When an ALJ has posed a hypothetical that accurately reflects
his RFC finding, questioned the VE about any apparent
inconsistencies with the relevant DOT job descriptions, and explained
in his decision to credit the VE’s testimony, the ALJ has complied
with SSR 00-4p[.] . . . The failure to address any potential
inconsistency between the RFC’s limitation to simple, routine,
repetitive work and the DOT’s requirement of level three reasoning
does not require a remand.
Welsh, 765 F.3d at 930.
Here, Chismarich does not challenge the hypothetical posed to the
vocational expert, and the ALJ properly questioned the expert whether there were
any inconsistencies between his testimony and the relevant DOT job descriptions.
The ALJ explained in his decision that the testimony was indeed consistent with
the DOT and credited the expert’s testimony. Chismarich’s counsel was given the
opportunity to question the expert at the hearing about any apparent inconsistencies
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between his testimony and the DOT, but he did not raise this claimed inconsistency
at the hearing. On this record, and in accordance with Eighth Circuit precedent
that an ability to follow simple instructions and perform non-detailed tasks is not
inconsistent with level 3 reasoning, there is no need to remand this matter to the
Commissioner for resolution of any perceived conflict. Welsh, 765 F.3d at 930.
Nor is there a conflict between reading instructions – as listed for language
level 2 – and being limited to simple instructions and non-detailed tasks.
Chismarich provides no support for his bare assertion that such a conflict exists,
and I am aware of none.
2.

Cleaner/Janitor

The vocational expert referred to DOT 323.687-014 to describe work that
Chismarich can perform as a cleaner/janitor. As defined by the DOT, this job may
involve “render[ing] personal assistance to patrons.” 1991 WL 672783.
Chismarich argues that this requirement exceeds his RFC and the hypothetical
question posed to the vocational expert to the extent that they limit him to only
casual and infrequent contact with others.
As discussed above, DOT definitions are not absolute job requirements but
instead are generic descriptions of the upper limits of skills for all jobs in a given
occupational category. Because of this, “a claimant’s reliance on the DOT as a
definitive authority on job requirements is misplaced[.]” Page, 484 F.3d at 1045;
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see also Wheeler v. Apfel, 224 F.3d 891, 897 (8th Cir. 2000) (claimant’s argument
that VE testimony on available jobs inconsistent with DOT rejected because “not
all of the jobs in every category have requirements identical or as rigorous as those
listed in the DOT.”).
This Court has specifically found that a job that may include some
interaction with patrons, such as that defined in DOT 323.687-014, is not
inconsistent with an RFC limitation to casual and infrequent contact with others.
See Rogers v. Colvin, No. 4:12CV00619AGF/NAB, 2013 WL 4482705, at *9
(E.D. Mo. Aug. 20, 2013); Blocker v. Astrue, No. 4:10CV0298 RWS TCM, 2010
WL 5572743, at *16 (E.D. Mo. Dec. 13, 2010), report and recommendation
adopted, No. 4:10CV298 RWS, 2011 WL 97741 (E.D. Mo. Jan. 12, 2011). See
also Hulsey v. Astrue, 622 F.3d 917 (8th Cir. 2010) (RFC limitation to only
superficial interpersonal contact not incompatible with performance of cleaner/
housekeeper job as defined at DOT 323.687-014).
The ALJ inquired of the expert whether there was any conflict between his
testimony and the DOT, and the expert responded that there was not. Because
there is indeed no conflict here, the ALJ was under no further duty to inquire or to
resolve any potential conflict. Chismarich’s claim of error is denied.
VI. Conclusion
For all of the foregoing reasons, the ALJ committed no legal error in his
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determination that Chisrmarich was not under a disability since his alleged onset
date.
Accordingly,
IT IS HEREBY ORDERED that that the decision of the Commissioner is
affirmed, and Stephen P. Chismarich’s complaint is dismissed with prejudice.
A separate Judgment is entered herewith

____________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 6th day of February, 2017.

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