United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
Kenneth McElwain filed a complaint appealing the final
decision of Nancy A. Berryhill,  the Acting Commissioner of
the Social Security Administration, finding him not disabled.
(Docket 1). Defendant denies plaintiff is entitled to
benefits. (Docket 9). The court issued a briefing schedule
requiring the parties to file a joint statement of material
facts (“JSMF”). (Docket 11). The parties filed
their JSMF. (Docket 16). For the reasons stated below,
plaintiff's motion to reverse the decision of the
Commissioner (Docket 19) is denied.
AND PROCEDURAL HISTORY
parties' JSMF (Docket 11) is incorporated by reference.
Further recitation of salient facts is incorporated in the
discussion section of this order.
February 8, 2012, Mr. McElwain filed an application for
disability insurance (“DI”) benefits under Title
II supplemental social security income (“SSI”)
benefits under Title XVI, alleging an onset of disability
date of March 11, 2011. (Docket 16 ¶ 1). On February 24,
2014, the ALJ issued a decision finding Mr. McElwain was not
disabled. Id. ¶ 2; see also
Administrative Record at pp. 23-39 (hereinafter “AR at
p. ___”). The Appeals Council denied Mr. McElwain's
request for review and affirmed the ALJ's decision. (AR
at pp. 1-4). The ALJ's decision constitutes the final
decision of the Commissioner of the Social Security
Administration. It is from this decision which Mr. McElwain
issue before the court is whether the ALJ's decision of
February 24, 2014, that Mr. McElwain was not “under a
disability, as defined in the Social Security Act, from March
11, 2011, [through February 24, 2014]” is supported by
substantial evidence in the record as a whole. (AR at p. 39)
(bold omitted); see also Howard v. Massanari, 255
F.3d 577, 580 (8th Cir. 2001) (“By statute, the
findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be
conclusive.”) (internal quotation marks and brackets
omitted) (citing 42 U.S.C. § 405(g)).
Commissioner's findings must be upheld if they are
supported by substantial evidence in the record as a whole.
42 U.S.C. § 405(g); Choate v. Barnhart, 457
F.3d 865, 869 (8th Cir. 2006); Howard, 255 F.3d at
580. The court reviews the Commissioner's decision to
determine if an error of law was committed. Smith v.
Sullivan, 982 F.2d 308, 311 (8th Cir. 1992).
“Substantial evidence is less than a preponderance, but
is enough that a reasonable mind would find it adequate to
support the Commissioner's conclusion.” Cox v.
Barnhart, 471 F.3d 902, 906 (8th Cir. 2006) (internal
citation and quotation marks omitted).
review of a decision to deny benefits is “more than an
examination of the record for the existence of substantial
evidence in support of the Commissioner's decision . . .
[the court must also] take into account whatever in the
record fairly detracts from that decision.” Reed v.
Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (quoting
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir.
not the role of the court to re-weigh the evidence and, even
if this court would decide the case differently, it cannot
reverse the Commissioner's decision if that decision is
supported by good reason and is based on substantial
evidence. Guilliams v. Barnhart, 393 F.3d 798, 801
(8th Cir. 2005). A reviewing court may not reverse the
Commissioner's decision “ ‘merely because
substantial evidence would have supported an opposite
decision.' ” Reed, 399 F.3d at 920
(quoting Shannon v. Chater, 54 F.3d 484, 486 (8th
Cir. 1995)). Issues of law are reviewed de novo with
deference given to the Commissioner's construction of the
Social Security Act. See Smith, 982 F.2d at 311.
Social Security Administration established a five-step
sequential evaluation process for determining whether an
individual is disabled and entitled to DI benefits under
Title II or SSI benefits under Title XVI. 20 CFR §§
404.1520(a) and 416.920(a). If the ALJ determines a claimant
is not disabled at any step of the process, the evaluation
does not proceed to the next step as the claimant is not
disabled. Id. The five-step sequential evaluation
(1) whether the claimant is presently engaged in a
“substantial gainful activity”; (2) whether the
claimant has a severe impairment-one that significantly
limits the claimant's physical or mental ability to
perform basic work activities; (3) whether the claimant has
an impairment that meets or equals a presumptively disabling
impairment listed in the regulations (if so, the claimant is
disabled without regard to age, education, and work
experience); (4) whether the claimant has the residual
functional capacity to perform . . . past relevant work; and
(5) if the claimant cannot perform the past work, the burden
shifts to the Commissioner to prove there are other jobs in
the national economy the claimant can perform.
Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cir.
1998). The ALJ applied the five-step sequential evaluation
required by the Social Security Administration regulations.
(AR at pp. 23-25).
one, the ALJ determined Mr. McElwain had not been engaged
“in substantial gainful activity for a full and
continuous 12-month period following the March 11, 2011,
alleged disability onset date.” Id. at p. 25.
the second step, [the agency] consider[s] the medical
severity of your impairment(s).” 20 CFR §
404.1520(a)(4)(ii). “It is the claimant's burden to
establish that [his] impairment or combination of impairments
are severe.” Kirby v. Astrue, 500 F.3d 705,
707 (8th Cir. 2007). A severe impairment is defined as one
which significantly limits a physical or mental ability to do
basic work activities. 20 CFR § 404.1521. An impairment
is not severe, however, if it “amounts to only a slight
abnormality that would not significantly limit the
claimant's physical or mental ability to do basic work
activities.” Kirby, 500 F.3d at 707. “If
the impairment would have no more than a minimal effect on
the claimant's ability to work, then it does not satisfy
the requirement of step two.” Id. (citation
omitted). Additionally, the impairment must have lasted at
least twelve months or be expected to result in death.
See 20 CFR § 404.1509.
found Mr. McElwain suffered from the following severe
impairments: “left clavicle fracture and rotator cuff
tear due to motorcycle accident with surgical fixation;
degenerative disc disease; obesity; and left eye
impairment.” (AR at p. 26) (bold omitted). Mr. McElwain
claims the ALJ erred by not including his depression as a
severe impairment. (Docket 19 at pp. 2-8).
addressed Mr. McElwain's depression as a mental
limitation. (AR at pp. 27-31). The ALJ first considered a
psychological consultative examination conducted by Sara
Schilplin, Psy.D., LP, of October 11, 2012. Id. at
pp. 27-30. Dr. Schilplin diagnosed Mr. McElwain “with
depressive disorder, single episode, severe without psychotic
features . . . anxiety, NOS, with posttraumatic stress
features . . . [and] a global assessment of function (GAF)
score of 40 . . . .” Id. at p. 27. The ALJ
“acknowledge[d] that the GAF of 40would indicate
fairly significant dysfunction if considered a valid
assessment of the claimant's functioning.”
Id. at p. 28. For reasons discussed below, the ALJ
concluded “the overall record does not support a
finding that the claimant has more than minimal limitation in
his ability to perform basic mental work activities.”
Id. The ALJ concluded the mental impairment was
“nonsevere.” Id. at p. 31.
rejected Dr. Schilplin's conclusions for a number of
reasons. First, the ALJ concluded “the GAF score of 40
. . . appears to have been made on fundamentally false
pretenses.” Id. at p. 29. “Despite
having worked fairly steadily over the six months prior to
the evaluation with Dr. Schilplin, the claimant apparently
failed to mention the work.” Id. The ALJ noted
Mr. McElwain “told Dr. Schilplin that he had been
fundamentally debilitated from both a physical and mental
standpoint since March 2011 essential inability [sic] to
function at all including basic activities of daily living .
. . [he] reported that he had to rely on his elderly mother
and his son to take care of him including tending top [sic]
basic needs such as cooking and cleaning . . . [and] that
since the accident he had been able to do little else than
rest in a recliner or in his bed . . . .” Id.
(references to administrative record omitted). The ALJ found
claimant's report to Dr. Schilplin “clearly less
than fully credible particularly given that he had been
working at substantial gainful activity levels over the past
6 months leading up to the evaluation.” Id.
The ALJ concluded “the fact that the claimant
apparently failed to mention his recent work to Dr. Schilplin
creates serious credulity [sic] problems.” Id.
at p. 30.
discredited Mr. McElwain's statements to Dr. Schilplin
that “before the accident he had worked consistently
throughout his life and had been a business owner . . . [but
now he was] feeling depressed . . . .” Id. at
p. 29. The ALJ found the record reflected Mr. McElwain did
“have some years . . . wherein . . . he generated
substantial gainful activity level earnings . . . . However,
[he] did not generate substantial gainful activity level
income over most years since 1998, including 6 years ...