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Dols v. Saul

United States Court of Appeals, Eighth Circuit

July 26, 2019

Robert Paul Dols Plaintiff - Appellant
Andrew Saul, [1] Commissioner, Social Security Administration Defendant-Appellee

          Submitted: April 19, 2019

          Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before COLLOTON, GRUENDER, and ERICKSON, Circuit Judges.


         The Social Security Commissioner denied Robert Dols's application for supplemental security income. After the Commissioner issued a final decision, Dols filed a complaint in the district court, [2] which granted the Commissioner's motion for summary judgment. We affirm.

         Dols applied for supplemental security income in September 2013. After the claim was initially denied and denied again upon reconsideration, an administrative law judge ("ALJ") held a hearing. Dols; Dr. Michael Lace, a psychological expert; Nancy Kaley, Dols's counselor; and a vocational expert testified at the hearing. The ALJ issued a decision on September 2, 2015 using the five-step process outlined by 20 C.F.R. § 416.920(a) for evaluating disability. At step two, the ALJ determined that Dols "has the following severe impairments: anxiety, depression, Asperger's disorder, cerebral dysfunction, obsessive compulsive disorder and [a] history of substance abuse/dependence." At step three, the ALJ concluded that Dols's impairments did not meet or medically equal "the severity of one of the listed impairments." The ALJ denied Dols benefits, giving great weight to Dr. Lace's opinion and no weight to Kaley's opinion. The Appeals Council denied Dols's request for review, and the ALJ's decision became the Commissioner's final decision.

         In granting summary judgment, the district court determined that substantial evidence supported both the ALJ's conclusion that Dols did not meet or equal a listed impairment and the ALJ's decision to give great weight to Dr. Lace's opinion. On appeal, Dols argues that his severe impairments meet listings 12.02, 12.04, 12.06, and 12.10. See 20 C.F.R. pt. 404, sbpt. P, app. 1 (2013). He also argues that the ALJ improperly "accorded great weight" to Dr. Lace's opinion and that Kaley's opinion should have been given more weight than Dr. Lace's.

         "We review the district court's determination de novo, affirming the ALJ's decision if it is supported by substantial evidence on the record as a whole." Scott v. Berryhill, 855 F.3d 853, 856 (8th Cir. 2017) (internal quotation marks omitted). We must consider "the evidence that supports the Commissioner's decision as well as the evidence that detracts from it. That we would have come to a different conclusion, however, is not a sufficient basis for reversal." Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008) (citation omitted). "If, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ's findings, the court must affirm the ALJ's decision." Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005). "In conducting our limited and deferential review of the final agency determination under the substantial-evidence standard, we must view the record in the light most favorable to that determination." Chismarich v. Berryhill, 888 F.3d 978, 980 (8th Cir. 2018) (per curiam).

         At step two of the five-step process, the ALJ considers "the medical severity of [the claimant's] impairment(s)." 20 C.F.R. § 416.920(a)(4)(ii). At step three, "[i]f the impairment meets or equals one of the listed impairments [in 20 C.F.R. pt. 404, subpt. P, app. 1], the claimant is conclusively presumed to be disabled." Bowen v. Yuckert, 482 U.S. 137, 141 (1987). "To meet a listing, a claimant must show that he or she meets all of the criteria for the listed impairment." Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014).

         At the time of the ALJ's decision, listings 12.02, 12.04, and 12.06 required that a claimant meet the paragraph A and B criteria or the paragraph A and C criteria. 20 C.F.R. pt. 404, sbpt. P, app. 1, § 12.00 (2013). Listing 12.10 required that a claimant meet both the paragraph A and paragraph B criteria. Id. § 12.10. We assume, without deciding, that the paragraph A criteria have been satisfied for all the listings at issue. Thus, Dols may meet one of the listings by satisfying the paragraph B or the paragraph C criteria. We consider paragraph B first.

         All four listings have the same paragraph B, which is satisfied when the claimant proves two of four criteria. See Id. §§ 12.02(B), 12.04(B), 12.06(B), 12.10(B) (2013). The ALJ determined that Dols did not prove any of the four. Because Dols appeals the ALJ's determination as to only the first two criteria, Dols must succeed on both arguments. Thus, Dols must first show that substantial evidence does not support the ALJ's determination that Dols failed to prove the first criteria because he has a moderate rather than a marked restriction on his activities of daily living ("ADLs"). Id.

         ADLs "include adaptive activities such as cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring appropriately for . . . grooming and hygiene, using telephones and directories, and using a post office." Id. § 12.00(C)(1) (2013). The Code of Federal Regulations requires an assessment of "the quality of these activities by their independence, appropriateness, effectiveness and sustainability" and a determination of "the extent to which [the claimant is] capable of initiating and participating in activities independent of supervision or direction." Id.

         In support of its determination, the ALJ noted that the testifying psychological expert, Dr. Lace, "opined moderate limits." It also noted that Dols "indicated in his November 2013 function report that he had no problems performing personal cares such as bathing or dressing himself"; that "[h]e performs yard work around the sober house he resides at"; "prepares meals and cleans his house"; rakes and mows the lawn; washes laundry; "shops for groceries and some personal items"; that he "can count change, pay bills, use a checkbook or money orders and a savings account"; and that he was working part-time.

         Dols argues that the ALJ should not have relied on Dols's statements in his function report because accepting the "statements at face value in the paragraph B analysis was at odds with the ALJ's own credibility determination." During the ALJ's step three analysis, it was required to determine Dols's residual functional capacity ("RFC"). 20 C.F.R. § 416.920(e). In doing so, the ALJ must assess the claimant's "ability to meet the physical, mental, sensory, and other requirements of work." Id. § 416.945(a)(4). The ALJ noted that Dols's and Kaley's statements "concerning the intensity, persistence and limiting effects of [Dols's] symptoms [were] not credible to the extent they [were] not consistent with the objective medical evidence and other evidence." Dols claims that the ALJ cannot "have it both ways." He argues that the ALJ could not base its paragraph B findings on Dols's statements while simultaneously finding his statements not credible for the RFC assessment.

         But the RFC assessment requires consideration of "all of the relevant medical and other evidence." Id. § 416.945(a)(3). In contrast, the ALJ looked to the function report for an account of Dols's daily life. The ALJ found Dols's statements not credible for the RFC assessment only to the extent that they conflicted with medical evidence and other evidence. It was reasonable for the ALJ to conclude that Dols could reliably describe his daily life but that Dols's opinion about "physical and mental limitations" that would affect what work he could do in a work setting was not credible. Id. § 416.945(a)(1).

         In addition, Dols argues that the ALJ's finding is not supported by substantial evidence because Kaley's testimony demonstrates that he "has serious difficulties in performing his ADLs without the significant supervision and oversight of the Five Stars residential facility where he lives." Kaley testified before the ALJ that Dols could drive and grocery shop but that he "would need help with his money." She explained that staff at the residential facility review his grocery list every two weeks and make sure that he does not run out of his medications. Dols also points to the fact that the staff at the residential facility meet with him three times a week.

         While Dols has some help with managing money and grocery shopping, he also appears to have done those tasks on his own at times. Further, Dols testified that he cleans dishes and bathrooms, sweeps and vacuums the house, and reads the newspaper and magazines. A licensed psychologist who examined Dols noted that he arrived early for their meeting and that he had "arranged a ride." She also observed that he was "casually dressed and adequately groomed." At the time of the ...

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