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Knight v. Berryhill

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

February 28, 2018

SHEILA K. KNIGHT, Plaintiff,
NANCY A. BERRYHILL, [1] Acting Commissioner, Social Security Administration, Defendant.




         Plaintiff Sheila Knight filed a complaint appealing the final decision of Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration, finding her not disabled. (Docket 1). Defendant denies plaintiff is entitled to benefits. (Docket 8). The court issued a briefing schedule requiring the parties to file a joint statement of material facts (“JSMF”). (Docket 10). The parties filed their JSMF. (Docket 16). The parties also filed a joint statement of disputed facts (“JSDF”).[2] (Docket 16-1). For the reasons stated below, plaintiff's motion to reverse the decision of the Commissioner (Docket 17) is granted.


         The parties' JSMF (Docket 16) and JSDF (Docket 16-1) are incorporated by reference. Further recitation of salient facts is incorporated in the discussion section of this order.

         On September 9, 2011, Ms. Knight filed an application for disability insurance benefits (“DIB”) alleging an onset of disability as of that date. (Docket 16 ¶ 1). Her date of last insured for DIB coverage purposes was December 31, 2015. Id. ¶ 3. The onset date of disability was subsequently amended to April 30, 2009. Id. ¶ 2. On July 12, 2013, an ALJ issued an unfavorable decision. Id. ¶ 8. Ms. Knight, with current counsel, appealed to the Appeals Council. Id. ¶ 9. On October 24, 2014, the Appeals Council vacated the decision of the ALJ and remanded for a new hearing. Id. ¶¶ 10-13.

         A remand hearing was held on March 3, 2015, before the same ALJ. Id. ¶ 14. On May 19, 2015, the ALJ issued a decision finding Ms. Knight was not disabled. Id. ¶ 19. On April 4, 2016, the Appeals Council denied Ms. Knight's request for review and affirmed the ALJ's decision. Id. ¶ 21. The ALJ's decision constitutes the final decision of the Commissioner of the Social Security Administration. It is from this decision which Ms. Knight timely appeals.

         The issue before the court is whether the ALJ's decision of May 19, 2015, that Ms. Knight was not “under a disability, as defined in the Social Security Act, from September 9, 2011, [through May 19, 2015]” is supported by substantial evidence in the record as a whole. (AR at p. 47) (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 DIB under Title XVI. 20 CFR § 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 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. 25-26).


         Plaintiff challenges the ALJ's decision on a number of grounds. The issues posed by her are summarized as follows:

1. Did the ALJ properly reject the testimony of Ms. Knight, her caregiver and other lay witnesses;
2. Did the ALJ properly consider four neuropsychological tests;
3. Did the ALJ give proper weight of a non-examining psychologist over the opinions of a treating neurologist;
4. Did the ALJ properly consider whether the criteria of Listing 12.02 was met;[3] and
5. Was the ALJ's decision at step five supported by substantial evidence.

(Docket 18 at p. 5). Plaintiff's challenges to the ALJ's decision will be addressed as necessary.

         STEP ONE

         At step one the ALJ determined Ms. Knight met the insured status requirements for DIB through December 31, 2015. (AR at p. 27). The ALJ found Ms. Knight's work activity “as a secretary for the South Dakota Department of Social Services from approximately June to August 2011” was “an unsuccessful work attempt” because the “secretarial work is clearly in excess of the claimant's residual functional capacity [RFC] . . . .” Id. at p. 28. Consistent with that finding, the ALJ found Ms. Knight had not been engaged in substantial gainful activity after April 2009. Id. Ms. Knight does not challenge these findings. (Dockets 18 & 22).

         STEP TWO

         At step two the ALJ found Ms. Knight had the following severe impairments: “migraine headaches, asthma, seizure disorder, [4] cognitive disorder―NOS, [5] dementia-unspecified, [6] adjustment disorder with anxiety and depressed mood, [7] depressive disorder―NOS, [8] and anxiety disorder―NOS.[9]” (Docket 16 ¶ 164). Ms. Knight does not challenge these findings. (Dockets 18 & 22).

         STEP THREE

         At step three, the ALJ determines whether claimant's impairment or combination of impairments meets or medically equals the criteria of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (“Appendix 1”). 20 CFR §§ 404.1520(d), 404.1525, and 404.1526. If a claimant's impairment or combination of impairments meets or medically equals the criteria for one of the impairments listed and meets the duration requirement of 20 CFR § 404.1509, the claimant is considered disabled. At that point the Commissioner “acknowledges [the impairment or combination of impairments] are so severe as to preclude substantial gainful activity. . . . [and] the claimant is conclusively presumed to be disabled.” Bowen v. Yuckert, 482 U.S. 137, 141 (1987). A claimant has the burden of proving an impairment or combination of impairments meet or equals a listing within Appendix 1. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). If not covered by these criteria, the analysis is not over, and the ALJ proceeds to the next step.

         At this step the ALJ determined plaintiff's severe impairments did not meet or equal a listing under Appendix 1. (Docket 16 ¶ 165). Plaintiff challenges this decision. (Docket 18 at p. 5).

         Critical to the determination at step three was the ALJ's decision to reject the opinions of Dr. Laurie Weisensee, Ms. Knight's treating neurologist since December 2008.

The undersigned declines to give controlling weight to, and rejects, the treating source opinion of Dr. Weisensee. It is not unaccompanied [sic] by any clinical or diagnostic findings. It appears to be based at least in part on statements of Lori Benson and Gail Penning who indicated that the claimant showed confusion and unawareness while she was employed at the Community Health Services in 2008. For reasons noted above, the non-medical source, third party, statements of Ms. Benson and Ms. Penning are not persuasive. To the extent Dr. Weisensee relied on their statements, her opinion is less persuasive. The doctor's opinion is inconsistent with the weight of the evidence, including her own clinical observations and prior assessment that the claimant had the cognitive and physical capacities to drive . . . . Great weight is given to the opinion of Dr. Pelc, whose expertise in psychology is better related to the claimant's assertions that she is disabled due to mental impairments, than is the expertise of Dr. Weisensee, who is a neurologist.
Dr. Weisensee indicated that she was asked, in part, to give the status for the claimant's Social Security Disability claim . . . . Thus, it appears her opinion from April 20, 2015, was based on the claimant's need to obtain a statement is support of her claim that she is disabled.

(AR at p. 45).

         Ms. Knight objects to this finding because “Dr. Weisensee's clinical considerations, orders, and findings are in the record. She was not required to reiterate the evidence in her assessment of functional limitations.” (Docket 18 at p. 29). Ms. Knight is critical of the ALJ for giving greater weight to the opinions of Dr. Pelc, a non-examining, consulting expert for relying on the medical records and not giving proper consideration to the lay-witness statements in the administrative record. Id. at pp. 30-31.

         Plaintiff contends “[t]he regulation for the assessment of mental disorders, 20 CFR § 404.1520a, requires consideration of claimant and lay witness reports.” Id. at p. 31 (referencing Appendix 1, Listing 12.00). She asserts “[f]or a non-examining medical expert to consider Sections 12.00C through 12.00H, in compliance with 20 CFR § 404.1520a, the expert must consider disability and function reports (the “E” exhibits) and testimony of the claimant and witnesses, and the attenuation of symptoms associated with a structured, supportive environment.” Id. at p. 32 (emphasis in original). Ms. Knight argues because “Dr. Pelc's assessment of functional capacity [fails] to consider foundational evidence required by 20 CFR § 1520a, [his opinions are] incompetent as a matter of law.” Id. at p. 33 (referencing Colhoff v. Colvin, No. CIV. 13-5002, 2014 WL 1123518, at *7 (D.S.D. Mar. 20, 2014)).

         Ms. Knight also challenges the opinion of the ALJ for rejecting Dr. Weisensee's opinions because the doctor “had been asked to provide a medical source statement for Knight's disability claim.” (Docket 18 at p. 33). Ms. Knight argues she “should not be penalized for adducing evidence to support her claim. Further, the ALJ's rationale impermissibly imposed a catch-22: if the treating neurologist had not been asked to provide [a] MSS [medical source statement], the ALJ could have found this a reason to disbelieve the claimant.” Id.

         The Commissioner argues “[t]he ALJ considered the . . . appropriate factors in rejecting Dr. Weisensee's opinion, and this Court should affirm the Commissioner's final decision.” (Docket 20 at p. 18). The Commissioner contends “[f]irst, the ALJ noted Dr. Weisensee did not provide any supporting clinical or diagnostic findings to support her opinion [and plaintiff's] argument amounts to speculation because Dr. Weisensee did not tie her opinion to any particular clinical or diagnostic finding in her medical report. Thus, the ALJ may properly reject an unsupported opinion.” Id. at pp. 18-19 (referencing 20 CFR § 404.1527(c)(3)).

         “Second, ” the Commissioner argues:

[T]he ALJ found Dr. Weisensee relied on lay witness statements that the ALJ found unpersuasive . . . . Dr. Weisensee indicated she reviewed statements from Ms. Benson and Ms. Penning and found the statements were consistent with known symptoms of dementia . . . . Notwithstanding that the lack of awareness and confusion identified in Ms. Benson's and Penning's statements could be consistent with dementia, the statements alone do not establish Knight was actually experiencing such symptoms. Indeed, as the ALJ ...

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