Submitted: April 19, 2019
from United States District Court for the District of
Minnesota - Minneapolis
COLLOTON, GRUENDER, and ERICKSON, Circuit Judges.
GRUENDER, CIRCUIT JUDGE
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,  which granted the Commissioner's
motion for summary judgment. We affirm.
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
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.
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).
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).
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.
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.
"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
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.
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 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.
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.
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 ...