United States District Court, D. South Dakota, Western Division
SHEILA K. KNIGHT, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner, Social Security Administration, Defendant.
JEFFREY L. VIKEN CHIEF JUDGE.
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”). (Docket 16-1).
For the reasons stated below, plaintiff's motion to
reverse the decision of the Commissioner (Docket 17) is
AND PROCEDURAL HISTORY
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
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.
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.
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)).
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 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).
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
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; and
5. Was the ALJ's decision at step five supported by
(Docket 18 at p. 5). Plaintiff's challenges to the
ALJ's decision will be addressed as necessary.
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).
two the ALJ found Ms. Knight had the following severe
impairments: “migraine headaches, asthma, seizure
disorder,  cognitive disorder―NOS,
dementia-unspecified,  adjustment disorder with anxiety and
depressed mood,  depressive disorder―NOS,
anxiety disorder―NOS.” (Docket 16 ¶ 164).
Ms. Knight does not challenge these findings. (Dockets 18
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.
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).
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
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).
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.
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)).
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.
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
” 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