United States District Court, D. South Dakota, Southern Division
TODD M. FREIDEMAN, Plaintiff,
NANCY A. BERRYHILL, ACTING COMM'R OF SOCIAL SECURITY; Defendant.
REPORT AND RECOMMENDATION
VERONICA L. DUFFY, United States Magistrate Judge.
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. 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.
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.
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.
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.
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.
Medical and Occupational Facts
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.
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.
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
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.
years, for reasons not revealed by the record,  Mr. Friedeman
received services from the Huron Community Counseling
Services CAREprogram for the mentally ill. AR 493. He
apparently did sheltered work for Community Counseling
Services, earning $2478 in 2006 and $1186 in
2007. AR 241.
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
filed a claim for SSD 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. AR 62-63.
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.
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 antigen. AR 657.
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 - 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.
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.
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 pathology were considerations. AR 619.
He recommended an MRI arthrogram to diagnose the hip pain.
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 type femoracetabular impingement. AR
671-72, 675-77, 694-95.
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.
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.
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.
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.
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
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.
Freideman's Walmart duties were changed, and he served as
a "service writer/greeter" from February, 2013, to
October 23, 2013. AR 287.
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.
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."
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.
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.
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.
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.
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.
Dr. Kelsey's evaluation, Lynne Peskey of Community
Counseling provided 25 case management
sessions. Therapist Andrew McDade, LSW, provided
five sessions of individual therapy. Therapist Gertrude
Larsen, MA, provided 24 sessions of individual
Christopherson, DO, psychiatrist, saw Mr. Freideman eight
times.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.” AR 500. Dr.
Christopherson provided psychiatric medical management over
the course of the next six visits.
Counseling also provided group activities and Mr. Freidman
participated on July 31, 2015, (AR 559-61) and September 10,
2015 (AR 718-19).
Christopherson thought that owing to early, corroborated
history of carbon monoxide poisoning,  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
DDSwould not accept her testing unless they
requested it first, so she instead did "a very thorough
clinic interview" lasting 120 minutes. AR 547-48.
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.
Mr. Freideman's Reports of His Symptoms and
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.
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.
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
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 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.
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.
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.
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 could handle changes in routine pretty good and "At
times its difficult to adjust." AR 312.
The ALJ's Decision
the ALJ found that the claimant was insured for benefits
through December 31, 2018. AR 16. The ALJ found at step
one 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. AR 19.
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.
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.
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.
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.
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.
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.
Issues Raised by Mr. Freideman in this Appeal
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
2. Whether the ALJ assigned proper weight to medical opinion
evidence concerning Mr. Freideman's mental health and
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.
Standard of Review.
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).
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).
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.
The Disability Determination and the Five-Step
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. §§
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 ...