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McElwain v. Berryhill

United States District Court, D. South Dakota, Western Division

March 27, 2017

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.



         Plaintiff Kenneth McElwain filed a complaint appealing the final decision of Nancy A. Berryhill, [1] 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.


         The parties' JSMF (Docket 11) is incorporated by reference. Further recitation of salient facts is incorporated in the discussion section of this order.

         On 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 timely appeals.

         The 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)).


         The 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).

         The 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. 2001)).

         It is 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.

         The 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).[2] 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 process is:

(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).

         STEP ONE

         At step 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.

         STEP TWO

         “At 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.

         The ALJ 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).

         The ALJ 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 40[3]would 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.

         The ALJ 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.

         The ALJ 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 ...

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