Sara Schmitt v. Kilolo Kijakazi, Acting CommisSara Schmitt v. Kilolo Kijakazi, Acting Commis
Submitted: October 19, 2021
Filed: March 9, 2022
Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges.
Kilolo Kijakazi has been appointed to serve as Acting Commissioner of Social Security and is substituted as the appellee pursuant to
Sara Allen Schmitt appeals the district court‘s2 order upholding the Commissioner of the Social Security Administration‘s (Commissioner) denial of Social Security disability insurance benefits (DIB). Having jurisdiction pursuant to
I.
On February 21, 2016,3 Schmitt filed an application for DIB pursuant to Title II of the Social Security Act,
Schmitt has an extensive medical history dating back to 2011, with symptoms including numbness, tingling, and burning in one foot; numbness stretching from her ribcage to her lower extremities; fatigue; spasticity; eye problems; and cognitive difficulties (such as difficulty with recall and organization). In 2012, Schmitt began treatment with Dr. Gary Beaver, a neurologist who diagnosed Schmitt as having multiple sclerosis. That same year, Dr. Beaver referred Schmitt to Dr. Erin Holker, a neuropsychologist, for a neuropsychological evaluation. This evaluation revealed primarily average to above-average results, though Schmitt did demonstrate some difficulty with complex designs, planning, organization, novel problem solving, and immediate recall of visual material. Dr. Holker concluded that Schmitt exhibited moderate executive dysfunction and would benefit from structure, routine, and smaller, simplified tasks.
From 2013 through 2016, Schmitt visited Dr. Beaver for check-ups related to her multiple sclerosis. At these visits, Schmitt indicated that she was doing well but that she was suffering from fatigue, and Dr. Beaver observed that Schmitt‘s motor strength was normal and that she had an unremarkable gait. In 2013, Schmitt began undergoing physical therapy for foot and ankle weakness associated with her multiple sclerosis. She later received physical therapy for other symptoms, such as side and back pain. Additionally, in 2014, Schmitt underwent a double mastectomy and chemotherapy following a breast cancer diagnosis. As a result of that chemotherapy, she reported increased problems with fatigue, neuropathy, and neuropathic discomfort. However, in a 2015 physical therapy assessment form, Schmitt indicated no limitations with her ability to sit, stand, walk, or participate in repetitive activities.
In 2016, Dr. John O‘Regan, a licensed psychologist, examined Schmitt and concluded that she suffered from mild neurocognitive disorder and would have difficulty tolerating the stress and pressure associated with the entry-level workplace. In 2016, Dr. Holker completed a second neuropsychological examination of Schmitt. Schmitt‘s examination results revealed a decline from her 2012 examination and indicated mild executive dysfunction, and Dr. Holker concluded that Schmitt would benefit from structure, routine, work environments free from distractions, and written reminders or checklists.
In 2017, Schmitt began visiting Dr. Andrew Smith, a neurologist, who, in 2018, completed a residual functional capacity (RFC) questionnaire and noted that Schmitt experienced fatigue; poor coordination; numbness, tingling, or other sensory disturbance; increased muscle tension; spasticity; pain; difficulty solving problems; and problems with judgment. Dr. Smith estimated that Schmitt would likely be absent from work more than four days per month as a result of her impairments. Also in 2018, Dr. Beaver created a similar report, summarizing his treatment of Schmitt and explaining that she had issues with fatigue, walking, and stability; numbness of the hands; burning pain; spasticity; sensitivity to heat; depression; difficulty remembering; and difficulty with problem solving, judgment, and speech.
Dr. Beaver
At Schmitt‘s hearing before the ALJ, Schmitt, Dr. Karen Butler (a medical expert), and Michael Stern (a vocational expert) testified. Schmitt testified that she has difficulty sustaining concentration, has declining memory, experiences extreme fatigue, and has neuropathy and spasticity in her feet. Schmitt explained that she chose to discontinue taking medication for her multiple sclerosis and recounted that, while she can participate in social activities with up to six people, she finds such activities to be exhausting and confusing. Dr. Butler then testified in regard to Listing 12.02, noting that between 2012 and 2016, Schmitt exhibited a decline in attention, motor function, memory, and processing speed. When asked to evaluate the paragraph B criteria for Listing 12.02, Dr. Butler opined that Schmitt would have work-related limitations requiring Schmitt to find a job in which work is “simple and unskilled” and without a “rapid pace” or “high production goals.” Ultimately, Dr. Butler opined that Schmitt did not meet Listing 12.02. Finally, Mr. Stern testified. The ALJ asked Mr. Stern to consider a hypothetical individual with the age, education, and limitations of Schmitt, and in response, Mr. Stern testified that there are jobs that exist in significant numbers in the national economy, such as a merchandise marker, cashier II, or router. Also before the ALJ were third-party statements from Schmitt‘s husband, daughter, friends, and co-workers, as well as an opinion by non-examining state agency psychological consultants who opined that Schmitt was limited to unskilled work.
The ALJ engaged in the required five-step sequential evaluation process set forth by
At Step 1, the ALJ determined that Schmitt had not engaged in substantial gainful activity from the date of alleged onset through the date last insured, and at Step 2, the ALJ found that Schmitt has several severe impairments, including multiple sclerosis, remitted breast cancer status post chemotherapy with ongoing neuropathic pain, and cognitive disorder related to multiple sclerosis or history of chemotherapy or both. However, at Step 3, the ALJ concluded that Schmitt‘s impairments did not meet or medically equal the severity of a listed impairment. At Steps 4 and 5, the ALJ determined that Schmitt had an RFC to perform light work, as defined by
The ALJ accorded little weight to the opinion of consultative examiner Dr. O‘Regan because, according to the ALJ, Dr. O‘Regan‘s opinion was inconsistent with the evidence overall; specifically, the ALJ found that Dr. O‘Regan‘s opinion was inconsistent with the formal neuropsychological testing results and the absence of
Schmitt sought review from the Appeals Council, but the Appeals Council declined review. Schmitt then filed a complaint in the district court, seeking review
of the Commissioner‘s final decision. Schmitt and the Commissioner filed cross-motions for summary judgment. On July 30, 2020, the magistrate judge issued an R&R, recommending that the district court deny Schmitt‘s motion for summary judgment and grant the Commissioner‘s motion for summary judgment. Schmitt filed objections to the R&R, but on September 10, 2020, the district court adopted the R&R in full, granting the Commissioner‘s motion and denying Schmitt‘s motion. Schmitt now appeals.
II.
On appeal, Schmitt challenges two of the ALJ‘s findings: first, the finding that Schmitt‘s impairments did not meet or medically equal Listing 11.09B or 12.02 and second, that Schmitt had the RFC to do light work. Schmitt argues that neither finding was supported by substantial evidence on the record as a whole. “We review de novo the district court‘s decision to affirm the ALJ‘s denial of social security DIB . . . .” Gann v. Berryhill, 864 F.3d 947, 950 (8th Cir. 2017). “Because the Appeals Council declined review, the ALJ‘s decision is the final decision of the Commissioner.” Combs v. Berryhill, 878 F.3d 642, 645 (8th Cir. 2017) (citation omitted). “We review the ALJ‘s denial of disability insurance benefits de novo to ensure that there was no legal error and that the findings of fact are supported by substantial evidence on the record as a whole.” Id. at 645-46 (citation omitted). “‘Substantial evidence in the record as a whole’ is a more ‘rigorous’ standard than simply ‘substantial evidence,’ which is ‘evidence that a reasonable mind might accept as adequate to support [the Commissioner‘s] conclusion.‘” Koch v. Kijakazi, 4 F.4th 656, 663 (8th Cir. 2021) (alteration in original) (citation omitted). Rather, “[w]e must consider evidence in the record that fairly detracts from, as well as supports, the ALJ‘s decision.” Delph v. Astrue, 538 F.3d 940, 945 (8th Cir. 2008). “However, we will not reverse the Commissioner‘s decision merely because we find that ‘substantial evidence exists in the record that would have supported a contrary outcome.‘” Koch, 4 F.4th at 663 (quoting Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)).
“The burden of proof is on the plaintiff to establish that his or her impairment meets or equals a listing. To meet a listing, an impairment must meet all of the listing‘s specified criteria.” Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004) (citation omitted). “An impairment that manifests only some of those criteria, no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990). “For a claimant to qualify for benefits by showing that [her] unlisted impairment, or combination of impairments, is ‘equivalent’ to a listed impairment, [she] must present medical findings equal in severity to all the criteria for the one most similar listed impairment.” Id. at 531 (citation omitted).
Listing 12.02 (“Neurocognitive disorders“) contains paragraph A and paragraph B criteria, with paragraph A specifying the medical criteria that must be present in the claimant‘s medical evidence and paragraph B specifying the functional criteria used to evaluate the limitations of the claimant‘s disorder. Neurocognitive disorders “are characterized by a clinically significant decline in cognitive functioning,” with symptoms including “disturbances in memory, executive functioning[,] visual-spatial functioning, language and speech, perception, insight, judgment, and insensitivity to social standards.”
Schmitt argues that Listing 11.09B was the listing most compatible with her impairments because it recognizes multiple sclerosis and the fatigue and cognitive impairments associated with multiple sclerosis. Schmitt further argues that because Dr. Butler only testified to Schmitt‘s inability to meet Listing 12.02, which does not consider fatigue, Dr. Butler did not account for Schmitt‘s fatigue in her analysis. See Appellant Br. 23 (“[Schmitt‘s] [c]ounsel suggested that the [multiple sclerosis] listing was the more applicable listing than 12.02 because listing 11.09B considers fatigue which is a debilitating symptom of [multiple sclerosis] . . . [Schmitt‘s] [c]ounsel specifically indicated that Dr. Butler could only testify to the cognitive deficits under 12.02 and that it doesn‘t factor in the fatigue.“).
However, we find that there is substantial evidence in the record as a whole to support the ALJ‘s determination that Schmitt‘s impairments did not meet or medically equal Listing 11.09B or 12.02. The ALJ explained that, with respect to Listing 12.02, Schmitt did exhibit some moderate limitations in some areas, such
Although Schmitt contends that the ALJ should have considered her fatigue, the ALJ expressly acknowledged Schmitt‘s argument before concluding “that the ratings that the medical expert [(i.e., Dr. Butler)] assigned already factor in the effects of fatigue.” Further, as the district court explained, the record featured little evidence of treatment for fatigue, and the issue is not whether Schmitt experienced fatigue as a result of her multiple sclerosis, which we do not doubt, but whether she has established that her fatigue is disabling. See Blakeman v. Astrue, 509 F.3d 878, 882 (8th Cir. 2007). Ultimately, we conclude that substantial evidence in the record as a whole supports the ALJ‘s determination that Schmitt‘s impairments did not meet or medically equal Listing 11.09B or 12.02.
Schmitt also asserts that substantial evidence does not support the ALJ‘s finding that she could perform “light work.” A claimant‘s RFC is “the most” that the claimant can do in a work setting despite her limitations. See
The ALJ justified its RFC determination by explaining that Schmitt‘s subjective allegations of symptoms (regarding the intensity, persistence, and limiting effects of those symptoms) were inconsistent with the objective medical evidence
and her activities of daily living. For example, the ALJ noted that, contrary to Schmitt‘s complaints of extreme limitations, her gait was unimpaired, she was able to drive, she was planning a vacation to Mexico, and her neuropsychological functioning was within normal limits.
Schmitt also argues that the ALJ erred by attributing little weight to the third-party statements provided, “[b]ut an ALJ properly may give less than controlling weight to lay-witness statements that are inconsistent with the record.” Schwandt v. Berryhill, 926 F.3d 1004, 1012 (8th Cir. 2019). Although not required to give an explanation as to the weight attributed to these third-party statements, see Igo v. Colvin, 839 F.3d 724, 731 (8th Cir. 2016), the ALJ explained that the third-party statements describe recent limitations observed after the relevant time period (i.e., between the alleged onset date of January 12, 2012, and the insurance status expiration date of December 31, 2016). In conclusion, we find that substantial evidence in the record as a whole supports the ALJ‘s RFC determination.
III.
For the foregoing reasons, we affirm the judgment of the district court.