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Freideman v. Berryhill

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

February 1, 2018



          VERONICA L. DUFFY, United States Magistrate Judge.


         Plaintiff, Todd M. Freideman, seeks judicial review of the Commissioner's final decision denying him payment of disability benefits under Title II and Title XVI of the Social Security Act.[1] Mr. Freideman has filed a complaint and has requested the court to reverse the Commissioner's final decision denying him disability benefits and to enter an order awarding benefits. Alternatively, Mr. Freideman requests the court remand the matter to the Social Security Administration for further hearing. The Commissioner asks this court to affirm its decision below. The matter is fully briefed and has been referred to this magistrate judge for a report and recommendation. For the reasons more fully explained below, it is respectfully recommended to the district court that the Commissioner's decision be reversed and remanded.


         This appeal of the Commissioner's final decision denying benefits is properly before the district court pursuant to 42 U.S.C. § 405(g). This matter was referred to this magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B), the October 16, 2014, standing order and order referring case dated January 19, 2018, of the Honorable Karen E. Schreier, United States District Judge.


         A. Procedural History

         Todd Freideman applied for Title II and Title XVI benefits on September 26, 2013, alleging a disability onset date of October 23, 2013. AR228, 230. Mr. Freideman's claims were denied initially on February 5, 2014, and upon reconsideration on May 2, 2014. AR142, 151. Mr. Freideman requested a hearing before an Administrative Law Judge (ALJ) and a video hearing was held on November 5, 2015, before ALJ Hallie E. Larsen. AR 14-15, 16.

         At the hearing, Mr. Freideman, Lynn Pesky, and David Perry, a vocational expert, testified. AR 65, 68-90. Mr. Freideman was represented by counsel, however, not his current lawyer. On December 16, 2015, the ALJ issued a decision denying benefits. AR13-31. The ALJ concluded Mr. Freideman was never disabled at any time from September 26, 2013, through the date of the ALJ's decision. AR16.

         Mr. Freideman then requested the Appeals Council to review the ALJ's decision. The Appeals Council denied the request for review on January 26, 2017, making the ALJ's decision the final agency decision. AR1. Mr. Freideman thereafter filed his appeal of the Commissioner's decision with this court on March 16, 2017. Docket No. 1.

         B. Medical and Occupational Facts[2]

         Todd Freideman was born in 1967. AR 493. He has a fraternal twin and a younger brother. AR 500. His mother reported that as a child he was diagnosed as hyperactive and had a short attention span, stuttered, and was mentally and physically abused by his father. AR 371. He did not complete high school. AR 493, 500. He worked construction. AR 493. During the 1980's recession, he moved from Pennsylvania to Huron to find employment. AR 493. He abused alcohol, but quit in about 1985. AR 607, 620. He has two daughters and is divorced. AR 493, 607.

         From 1993 through 2004, Mr. Freideman's earnings were low to moderate but steady. AR 241. He worked for Dakota Pork in Huron "from 1990 to 199" [sic], and as a smokehouse operator at LSI, Inc., in Alpena from March 1996 until March 2005. AR 360; cf. detailed earnings record at ¶ 242, identifying employers at ¶ 590.

         On March 29, 2005, an MRI revealed a large disc herniation at ¶ 3-4, filling the neural foramen and causing severe foraminal stenosis. A smaller hernia at ¶ 5-S1 caused borderline central stenosis. AR 589. Matthew Reynen, MD, orthopedic surgeon, advised against conservative treatment but Mr. Freideman wanted to try it. AR 587. Chiropractic treatment plus Vicodin, Celebrex, and a Medrol Dose Pack did not help and by May Mr. Freideman was ready for surgery. AR 587, 595.

         Dr. Reynen's May 23, 2005 operation report described a large extruded disc that flattened the nerve root. AR 581. Six weeks post excision of the L3-4 disc, Mr. Freideman had achiness in the left buttock and thigh, similar to before surgery but less intense. AR 600. Ten weeks post excision, he felt very limited, was unable to stand or walk for prolonged periods, and had difficulty bending and lifting. AR 602. In October 2005, 20 weeks post excision he had symptoms but said he felt ready to return to work and Dr. Reynen certified that he could work. AR 604-05. However, Mr. Freideman did not return to work that year: his last earnings from LSI, Inc., were in 2005 when he was paid $6101, less than 25 percent of his annual wages there, consistent with working about one quarter. AR 242.

         For two years, for reasons not revealed by the record, [3] Mr. Friedeman received services from the Huron Community Counseling Services CARE[4]program for the mentally ill. AR 493. He apparently did sheltered work[5] for Community Counseling Services, earning $2478 in 2006 and $1186 in 2007[6]. AR 241.

         In 2007 he worked briefly (earning $2046) at Huron Crossroads as a hotel restaurant prep cook. AR 243, 298. He resumed substantial gainful activity (“SGA”) when he started working at Wal-Mart in the second half of 2007. AR 243.

         He had filed a claim for SSD[7] in January 2006. AR 94. By the time it reached hearing in January, 2008, Mr. Freideman was working full-time at Wal-Mart; he requested and received an ALJ's permission to withdraw his Application.[8] AR 62-63.

         Mr. Friedeman worked at Wal-Mart Tire Lube Express from July 2007 to February 2013. AR 243, 287, 360. He was a service technician and installed new tires, repaired tires, and changed oil. AR 360. On the side he hung drywall. AR 620.

         In October 2011, Mr. Freideman presented to the Huron Clinic complaining of right hip pain starting two years before and worsening for eight months. AR 653. He also suffered intermittent back pain, better since his disc surgery, id., and left foot pain related to degenerative joint space narrowing in the first metatarsophalangeal (MTP) joint. AR 652. Fatigue had been present for years but he could stay awake with a candy bar or caffeine. AR 645. Laboratory studies revealed a positive HLA B27[9] antigen. AR 657.

         Mr. Freideman was referred to Gregory Mumm, MD, a rheumatologist. Dr. Mumm recorded complaints of low back and lumbar pain, myalgias and arthralgias in the forearms, shins, ankles, and feet, generalized stiffness lasting 90 minutes in the morning, longstanding fatigue, and disrupted sleep. AR 619. Dr. Mumm noted a history of depression and anxiety. AR 620. Review of systems was positive for constitutional symptoms[10] - subjective fevers, 20- pound weight loss, fatigue, and weakness - and bouts of red eyes, light sensitivity, dry mouth, heart murmur, shortness of breath, nausea, abdominal pain, heartburn, difficult urination, rashes, muscle tenderness and weakness, cold sensitivity, paresthesias, memory loss, sleep disruption, and the above-noted depression and anxiety. AR 620. Dr. Mumm's impression was chronic widespread pain. AR 619.

He has innumerable somatic complaints and pains that are more diffuse and muscular in nature and prominent among these complaints are longstanding fatigue, disrupted sleep quality, and a number of other constitutional problems. A myofascial pain syndrome like fibromyalgia would some [sic] most likely to account for all of these symptoms.

AR 619.

         Dr. Mumm recommended treatment "along the lines of a myofascial pain syndrome" with aerobic exercise, sleep hygiene, medications like Cymbalta or Savella, Gabapentin, Lyrica, Tramadol, and tricyclic antidepressants. Id.

         Dr. Mumm noted mild degenerative joint disease of the first MTP joint. AR 620. He noted Mr. Freideman's complaint of hip pain with weight bearing and rotation, and an October 2011 x-ray finding of mild loss of joint space and a somewhat broad femoral neck. Dr. Mumm said a CAM-type impingement (see fn. 13) or labral[11] pathology were considerations. AR 619. He recommended an MRI arthrogram to diagnose the hip pain. Id.

         Mr. Freideman was referred to Erik Peterson, MD, CORE Orthopedics. AR671. Imaging of the hip in the first quarter of 2012 confirmed the presence of an acetabular labral tear secondary to cam[12] type femoracetabular impingement. AR 671-72, 675-77, 694-95.

         On June 8, 2012, Dr. Peterson reported a right hip arthroscopic labral repair with anchors; acetabular osteoplasty including rim trim, chondroplasty, and microfracture of the acetabular Grade 4 chondral defect; and osteoplasty of the femoral head cam lesion. AR 624. Dr. Peterson said it was necessary also to perform a capsulotomy "when I entered the joint to connect the two portals, and I did see some synovitis around the hip capsule, certainly indicating a clinically symptomatic tear." "He had a very large, impressive, cam lesion on the superior and mid anterior part of the femoral head and neck area." It was necessary to resection 20-25 percent of the femoral head junction to return it to a more normal shape. AR 625.

         A month after surgery Mr. Freideman complained of lower-leg weakness. He had obvious quadriceps atrophy and a hard time holding a straight-leg-raising position. AR 681.

         In October, 2012, Mr. Freideman complained of groin pain in his left hip. In addition he had numbness and tingling in the left foot that sounded like possible recurrent disc herniation. Left hip impingement signs were positive and he had an "iliopsoas deep groin snap." AR 389.

         Lumbar spine MRI showed degenerative changes at ¶ 2-3, L3-4, L4-5, and L5-S1 and a small annular tear at ¶ 4-5. AR 383. Disc extrusion appeared to contact the exiting right L3 nerve root. This could be granulation tissue from the prior lumbar spine surgery. AR 382. Imaging of the left hip showed significant cartilage disease and trace bursitis. AR 386. Dr. Peterson said "leftward symptoms" could be due to granulation tissue from the prior discectomy but he found no source of radiculopathy. AR 411. In November 2012, he injected the left hip for diagnostic and therapeutic purposes. AR 411. After this, the orthopedic record is silent for ten months.

         In March, 2013, Dr. Lyle Christopherson, Community Counseling psychiatrist, treated Mr. Freideman with Ambien for his sleep disorder, which a one-time otolaryngologist said in May, 2013, could have a possible psychiatric contribution (without, however, describing behaviors and apperance). AR 392-93, 669.

         In August 2013, Dr. Peterson's orthopedic PA reported Mr. Freideman's complaints of catching, almost snapping, in the left groin and deep-seated joint pain that was very debilitating. AR 388. He had an antalgic, slow gait, was very cautious moving the hip, had "snapping in the groin consistent with iliopsoas bursitis, " and had painful impingement tests. Id. Range of motion was reduced and the hip was "very irritable." Id. Imaging showed a labral tear without complete detachment and a focal chondral defect in the femoral head. Id.

         Mr. Freideman's Walmart duties were changed, and he served as a "service writer/greeter" from February, 2013, to October 23, 2013. AR 287.

         On October 16, 2013, surgery was scheduled for October 28, 2013. AR394. On this day, Mr. Freideman applied for SSD, stating that he had been unable to work for several days each month and had been using his sick leave and vacation pay. AR 274. The field office worker reported, "Claimant was very defensive of all questions asked.... A couple times he repositioned himself from what appeared to be pain in the hip." AR 279.

         Dr. Peterson reported the left hip operation: arthroscopic labral repair, 3-anchor; arthroscopic osteoplasty of femoral head to treat cam impingment; arthroscopic iliopsoas release; left arthroscopic chondroplasty of the acetabular rim, and left iliopsoas tenotomy. Dr. Peterson's post operative diagnosis was torn anterior superior acetabular labrum, deep chondral labral separation secondary to cam-type femoroacetabular impingement, grade 3 chondromalacia of the left acetabular rim, and left iliopsoas bursitis with internal snapping hip. Findings included, again, synovitis in the capsule. Total tear size was 3 to 3.5 cm. The patient had a "quite prominent cam abnormality on the anterior femoral head-neck junction, which was sculpted into a more normal shape, sculpting around the spurring at the rim." AR 401-02.

         Post operatively, Mr. Freideman engaged in physical therapy and complained of pain, weakness, and recurrent problems with his right hip. AR422, 427, 430-36. Dr. Peterson injected the right hip on December 4, 2013 and continued the left hip therapy program. AR 403, 438-40, 442-43. Mr. Freideman underwent another injection of the right hip on December 19, 2013. AR 415. On this date, Dr. Peterson's PA wrote a letter that Mr. Freideman was not ready to return to work, but hopefully could return toward the end of February: "He is unable to do repetitive motion, steps, stairs, climbing, weightbearing for prolonged periods, or sitting prolonged periods. I have him in a PT program." AR 468. Mr. Freideman told his physical therapist that he struggled with both hips equally. AR 447, 449.

         On January 21, 2014, Mr. Freideman underwent a third injection of the right hip. At this point, Dr. Peterson noted that he complained most of debilitating sacral pain and discomfort into his tailbone, and had point specific pain on the coccyx. AR 451. Dr. Peterson's PA wrote to Jonathan Stone, MD, a physiatrist, referring the patient for debilitating longstanding coccyx/sacral pain. AR 465.

         Dr. Stone saw Mr. Freideman on February 28, 2014, and recorded a history of a fall from a ladder on uncertain dates: "2002 or maybe even before in the Spring of 1994. He also had a fall in 1999. He had repeated falls in 2010 and 2013." AR 455. Mr. Freideman described his coccydyneal pain as 7.8 on the 0-10 scale, stabbing and burning in nature. He also described numbness and tingling down his left leg, and pain that was worse with walking, standing, lying down, bending over, sitting, cold weather, leaning forward, increased activity, and stretching. AR 455.

         Dr. Stone noted the positive HLA-B27. AR 455. He noted the history of treatment and physical therapy without much benefit. AR 455. Complaints included dizziness and headaches, numbness in the left leg and foot, tremulousness, memory problems, and weakness. AR 455. The patient reported pain in the back, feet, hips, legs, neck, shoulders. AR 453. Dr. Stone reported mildly restricted affect and limited insight, but offered no further description. He diagnosed coccydynia. AR 453. On March 5, 2014, Mr. Freideman underwent a caudal injection. AR 459. Afterward, he was "probably better than he has been in a long time, " according to Dr. Peterson. AR 462. "I do not want to tempt fate by putting him back to work because the repetition will surely flare his pain up." AR 462. Dr. Peterson estimated that Mr. Freideman could return to work on July 31, 2014. AR 461.

         On July 1, 2014, Beth Kelsey, Ed.D., QMHP, LPC-MH, a psychologist at Huron's Community Counseling program, evaluated Mr. Freideman. AR 493. She reported, "Todd was in the CARE program from 2006-11." AR 493. Dr. Kelsey stated, "he started going downhill emotionally following two hip surgeries." AR 493. "He was a little slow in his responses. He seems to think before he speaks. He reported that he has occasional psychotic thoughts. He reported that he cries a lot." AR 494. She diagnosed Major Depressive Disorder, Recurrent, Severe, with Psychotic Features. AR 495.

         Following Dr. Kelsey's evaluation, Lynne Peskey of Community Counseling provided 25 case management sessions.[13] Therapist Andrew McDade, LSW, provided five sessions of individual therapy.[14] Therapist Gertrude Larsen, MA, provided 24 sessions of individual therapy.[15]

         Lyle Christopherson, DO, psychiatrist, saw Mr. Freideman eight times.[16]He provided medication management following his initial 60-minute interview and examination on July 28, 2014. AR 499-501. Dr. Christopherson reported that he had last seen Mr. Freideman in 2010 when he had a history of mood issues, sleep issues, and alcoholism in remission. AR 500. Dr. Christopherson noted that a lot of things had happened recently: the patient had had extensive orthopedic work on both hips and was in chronic pain. He had done physical labor his entire life. "He is a little bit of an odd duck." Dr. Christopherson did not elaborate. "He does complain of problems with memory. He is kind of circumstantial and kind of runs things over and over and over again. That is kind of the way he's always been but it's worse now. He clearly is somewhat depressed endorsing 20 points on the PHQ-9.”[17] AR 500. Dr. Christopherson provided psychiatric medical management over the course of the next six visits.

         Community Counseling also provided group activities and Mr. Freidman participated on July 31, 2015, (AR 559-61) and September 10, 2015 (AR 718-19).

         Dr. Christopherson thought that owing to early, corroborated history of carbon monoxide poisoning, [18] cognitive testing was warranted. AR 545. In June, 2015, Dr. Christopherson referred Mr. Freideman to Gennea Danks, Ph.D., QMHP, for cognitive testing. AR 548. Dr. Danks thought that DDS[19]would not accept her testing unless they requested it first, so she instead did "a very thorough clinic interview" lasting 120 minutes. AR 547-48.

         During the 2014-15 period, Mr. Freideman engaged in sporadic work. In 2014, Hamilton Drywall & Painting paid him $1650. AR 256. His fraternal twin William Freideman paid him $1200. AR 260. In March, 2015, Hamilton Drywall & Painting paid Mr. Freideman $767.50. AR 258. On November 2, 2015, an employer sent Mr. Freideman a text message: "Todd if Walmart offers you a job don't turn it down you do not do good around people everything around turn to s--- I cannot afford to have you around good bye." Mr. Freideman appeared to have no idea what his problem was, getting along with others. All he could say is, "I'm not good with people." AR 71-72.

         C. Mr. Freideman's Reports of His Symptoms and Limitations

         The record contains a "function report" and Todd Freideman's testimony. In his function report, Mr. Freideman described daily activities: making sandwiches, taking his therapy dog outside, laundry and cleaning (performed slowly, with tasks broken up, described at ¶ 321), and shopping for groceries twice a month, AR 308-09. He reported a restricted daily routine at ¶ 326-28.

         He had problems walking and standing. AR 315. "I drag my feet and swing my legs instead of lifting them. The pain through my hips buttocks tail bone and lower back really increase in very short amount of time and make it very difficult for me about 2 minutes, I can only walk for about 2 blocks before I need to stop and rest." AR 318. He testified that he walked his dog 15-20 minutes. AR 75. He had difficulty with stairs and stayed away from stairs as much as possible. AR 317, 319. He had difficulty getting in and out of the shower. AR 314. He showered infrequently. AR 323.

         He testified that he could stand about 15 minutes. AR 75. He could not squat because of pain in his hips, buttocks, tailbone, and up through his lower back. AR 317. Bending and kneeling were almost as painful as squatting. AR317, 319. He stated that he could sit 5-15 minutes before his tailbone and hips really started to bother and he needed to get up. AR 319.

         Someone else handled his money, because this added to his stress. AR308-09. He watched movies, listened to music, visited with his brother who had multiple sclerosis, and maybe once a week talked on the phone with his children. AR 310.

         He said he went no place on a regular basis; he didn't have the energy. Id. He said, "I can't go to to many places without people looking at me funny (strange) looks because I walk funy [sic] and slow, drag my feet, walk like Im [sic] drunk and I don't drink at all (Alcohol - quit 2005)[.]" AR 322.

         He had problems lifting a bag of potatoes that weighed 10 pounds (function report) or 20 pounds (testimony). AR 75, 317. He claimed that he could pay attention for about an hour. AR 75, 311. But concentration was not good and when somebody asked a question "it takes me quite awhile to anser [sic]." AR 315. He could handle written instructions "sometimes good if I can reference it, " but spoken instructions "[n]ot that good I forget what was said a lot of times." AR 311.

         He testified that when he was trying to hang drywall (apparently in 2014-15, AR 19-20), he did not come late or leave early, but was given six to eight 20-30-minute breaks. AR 78.

         He claimed that he had never been fired from a job because of problems getting along with other people. AR 312. He also said that 90 percent of the time he was in a lot of pain that "makes a person get agravated easy and makes me be not good company at times." AR 316. He testified, "I get really irritable. I'm not good with people." AR 76. He testified, "Sometimes I just couldn't handle the other people coming to the job to load the job with other things that had to be there and had to go out and cool off. I'm not good with people." AR78-79. He testified that he could not get along with "[c]oworkers and my brother, and other people showing up to the job." AR 79. As for responding to criticism, Friedeman testified that he was "probably pretty argumentative. I'm not good with people. I'm not good with criticism." AR 79. He acknowledged disagreements or arguments with co-workers when "I had to go cool off. I could not continue doing what I was doing." AR 80.

         He said he could handle changes in routine pretty good and "At times its difficult to adjust." AR 312.

         D. The ALJ's Decision

         Initially the ALJ found that the claimant was insured for benefits through December 31, 2018.[20] AR 16. The ALJ found at step one[21] that Mr. Freideman had not engaged in SGA since the date he applied for benefits, September 26, 2013. AR19. Inconsistently, the ALJ went on to say that no evidence refuted the field office determination that Mr. Friedman engaged in SGA until October 23, 2013. Id. Therefore, this was the earliest date he could be found disabled.[22] AR 19.

         The ALJ found at step two that Mr. Freideman had the following severe impairments: degenerative disc disease, lumbar spine; fibromyalgia; anti-social personality traits; and major depressive disorder. AR20.

         At step three, the ALJ found Mr. Freideman did not have an impairment, or a combination of impairments, that met or equaled a listed impairment in 20 CFR Part 404, Subpart P, Appendix 1. Id. In this regard, the ALJ considered but rejected listings described at the following sections: 1.02, 1.04, and 12.04. Id. The ALJ recited activities of daily living engaged in by Mr. Freideman as evidence he did not meet any listing. AR20-21. In her written opinion, the ALJ did not specifically mention or consider fibromyalgia as an impairment at step three nor did she discuss the listing at section 14.09D. Id.

         At step four, the ALJ determined Mr. Freideman's residual functional capacity (RFC) included the ability to do light work. AR22. The ALJ described Mr. Freideman's RFC as follows: “lift and/or carry 10 pounds frequently and 20 pounds occasionally; sit, stand and/or walk six hours out of an eight-hour workday with normal breaks; never climb ladders/ropes/scaffolds; occasionally climb ramps/stairs, stoop, kneel, crouch, and crawl; and frequently balance. Mentally, he is able to understand, remember and carry out short, simple instructions, interact appropriately with co-workers on an occasional basis, and have no contact with the general public as part of the job.” AR22. Given this RFC, the ALJ concluded there was no past relevant work Mr. Freideman was able to perform. AR29.

         In arriving at Mr. Freideman's mental RFC, the ALJ discounted each of Mr. Freideman's treating mental health providers. The ALJ assigned "little weight" to Dr. Christopherson's opinions (at AR 726-28); "limited weight" to the opinions of Gertrude Larsen, MA (at AR 732-34), described by the ALJ as "claimant's case manager, ... for a short period of time"; "little weight" to the opinion of Gennea Danks, Ph.D. (at 729-31); and "little weight" to the testimony of Lynne Peskey, the case manager (at AR 83-85). AR 26-28. The ALJ assigned "significant weight" to the DDS non-examining opinions, noted that they had found mental impairments non-severe, and noted that records received subsequent to their review supported a finding of severe mental impairments. AR 28.

         At step five, the ALJ concluded that given Mr. Freideman's age (46 years old), education (high school), work experience, and RFC, there were jobs he could perform that exist in significant numbers in the national economy. Id. Specifically, relying on the vocational expert's (“VE”) opinion, the ALJ found Mr. Freideman retained the ability to perform the jobs of document scanner, garment sorter, and laundry worker. AR30.

         In discussing her step five analysis, the ALJ noted that “[f]ibromyalgia has been suspected as his symptoms are consistent with fibromyalgia, but the record contains no formal evaluation or diagnosis of fibromyalgia. . . . The claimant is prescribed medications for mental health symptoms, but he takes no pain medication.” AR24.

         E. Issues Raised by Mr. Freideman in this Appeal

         Mr. Freideman raises the following five issues before this court:

1. Whether the ALJ erred in determining that Mr. Freideman's combined impairments, including his fibromyalgia, did not meet or equal a listing, in particular Listing 14.09D.
2. Whether the ALJ assigned proper weight to medical opinion evidence concerning Mr. Freideman's mental health and functioning.
3. Whether the ALJ erred as a matter of law by performing the psychiatric review technique without the assistance of a mental health professional.
4. Whether the ALJ erred in failing to develop the psychological evidence from Dr. Gennea Danks.
5. Whether the ALJ's formulation of Mr. Freideman's mental RFC complied with Eighth Circuit law.


         A. Standard of Review.

         When reviewing a denial of benefits, the court will uphold the Commissioner's final decision if it is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Minor v. Astrue, 574 F.3d 625, 627 (8th Cir. 2009). Substantial evidence is defined as more than a mere scintilla, less than a preponderance, and that which a reasonable mind might accept as adequate to support the Commissioner's conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Klug v. Weinberger, 514 F.2d 423, 425 (8th Cir. 1975). “This review is more than a search of the record for evidence supporting the [Commissioner's] findings, and requires a scrutinizing analysis, not merely a rubber stamp of the [Commissioner's] action.” Scott ex rel. Scott v. Astrue, 529 F.3d 818, 821 (8th Cir. 2008) (internal punctuation altered, citations omitted).

         In assessing the substantiality of the evidence, the evidence that detracts from the Commissioner's decision must be considered, along with the evidence supporting it. Minor, 574 F.3d at 627. The Commissioner's decision may not be reversed merely because substantial evidence would have supported an opposite decision. Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005); Woolf v. Shalala 3 F.3d 1210, 1213 (8th Cir. 1993). If it is possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, the Commissioner must be affirmed. Oberst v. Shalala, 2 F.3d 249, 250 (8th Cir. 1993). “In short, a reviewing court should neither consider a claim de novo, nor abdicate its function to carefully analyze the entire record.” Mittlestedt v. Apfel, 204 F.3d 847, 851 (8th Cir. 2000) (citations omitted).

         The court must also review the decision by the ALJ to determine if an error of law has been committed. Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992); 42 U.S.C. § 405(g). Specifically, a court must evaluate whether the ALJ applied an erroneous legal standard in the disability analysis. Erroneous interpretations of law will be reversed. Walker v. Apfel, 141 F.3d 852, 853 (8th Cir. 1998)(citations omitted). The Commissioner's conclusions of law are only persuasive, not binding, on the reviewing court. Smith, 982 F.2d at 311.

         B. The Disability Determination and the Five-Step Procedure.

         Social Security law defines disability as the inability to do 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 twelve months. 42 U.S.C. §§ 416(I), 423(d)(1); 20 C.F.R. § 404.1505. The impairment must be severe, making the claimant unable to do his previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.

         The ALJ applies a five-step procedure to decide whether an applicant is disabled. This sequential analysis is mandatory for all SSI and SSD/DIB applications. Smith v. Shalala, 987 F.2d 1371, 1373 (8th Cir. 1993); 20 C.F.R. § 404.1520. When a determination that an applicant is or is not disabled can be made at any step, evaluation under a subsequent step is unnecessary. Bartlett v. Heckler, 777 F.2d 1318, 1319 (8th Cir. 1985). The five steps are as follows:

Step One: Determine whether the applicant is presently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). If the applicant is engaged in substantial gainful activity, he is not disabled and the inquiry ends at this step.
Step Two: Determine whether the applicant has an impairment or combination of impairments that are severe, i.e. whether any of the applicant's impairments or combination of impairments significantly limit his physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). If there is no such impairment or combination of impairments the applicant is not disabled and the inquiry ends at this step. NOTE: the regulations prescribe a special procedure for analyzing mental impairments to determine whether they are severe. Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir. 1992); 20 C.F.R. § 1520a. This special procedure includes completion of a Psychiatric Review Technique Form (PRTF).
Step Three: Determine whether any of the severe impairments identified in Step Two meets or equals a “Listing” in Appendix 1, Subpart P, Part 404. 20 C.F.R. § 404.1520(d). If an impairment meets or equals a Listing, the applicant will be considered disabled without further inquiry. Bartlett 777 F.2d at 1320, n.2. This is because the regulations recognize the “Listed” impairments are so severe that they prevent a person from pursuing any gainful work. Heckler v. Campbell, 461 U.S. 458, 460 (1983). If the applicant's impairment(s) are severe but do not meet or equal a Listed impairment the ALJ must proceed to step four. NOTE: The ...

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