Sara Schmitt v. Kilolo Kijakazi, Acting Commis

27 F.4th 1353
Court of Appeals for the Eighth Circuit·Decided March 9, 2022·No. 20-3341·Published·Cited by 106 cases

Opinion

United States Court of Appeals For the Eighth Circuit ___________________________

No. 20-3341 ___________________________

Sara Allen Schmitt

Plaintiff - Appellant

v.

Kilolo Kijakazi,1 Acting Commissioner Social Security

Defendant - Appellee ____________

Appeal from United States District Court for the District of Minnesota ____________

Submitted: October 19, 2021 Filed: March 9, 2022 ____________

Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges. ____________

SHEPHERD, Circuit Judge.

1 Kilolo Kijakazi has been appointed to serve as Acting Commissioner of Social Security and is substituted as the appellee pursuant to Federal Rule of Appellate Procedure 43(c). Sara Allen Schmitt appeals the district court’s2 order upholding the Commissioner of the Social Security Administration’s (Commissioner) denial of Social Security disability insurance benefits (DIB). Having jurisdiction pursuant to 28 U.S.C. § 1291 and finding that substantial evidence in the record as a whole supports the Commissioner’s denial, we affirm.

I.

On February 21, 2016, 3 Schmitt filed an application for DIB pursuant to Title II of the Social Security Act, 42 U.S.C. § 423, alleging a disability with an onset date of January 15, 2012, and an insurance status expiration date of December 31, 2016. Her application was denied initially and again on reconsideration. Schmitt then requested a hearing before an Administrative Law Judge (ALJ), which was granted.

Schmitt has an extensive medical history dating back to 2011, with symptoms including numbness, tingling, and burning in one foot; numbness stretching from her ribcage to her lower extremities; fatigue; spasticity; eye problems; and cognitive difficulties (such as difficulty with recall and organization). In 2012, Schmitt began treatment with Dr. Gary Beaver, a neurologist who diagnosed Schmitt as having multiple sclerosis. That same year, Dr. Beaver referred Schmitt to Dr. Erin Holker, a neuropsychologist, for a neuropsychological evaluation. This evaluation revealed primarily average to above-average results, though Schmitt did demonstrate some difficulty with complex designs, planning, organization, novel problem solving, and immediate recall of visual material. Dr. Holker concluded that Schmitt exhibited moderate executive dysfunction and would benefit from structure, routine, and smaller, simplified tasks.

2 The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota, adopting the report and recommendations of the Honorable Elizabeth Cowan Wright, United States Magistrate Judge for the District of Minnesota. 3 The report and recommendation (R&R) sets forth an application date of March 21, 2016, while other documents before the district court and the parties’ briefing to this Court set forth an application date of February 21, 2016.

-2- From 2013 through 2016, Schmitt visited Dr. Beaver for check-ups related to her multiple sclerosis. At these visits, Schmitt indicated that she was doing well but that she was suffering from fatigue, and Dr. Beaver observed that Schmitt’s motor strength was normal and that she had an unremarkable gait. In 2013, Schmitt began undergoing physical therapy for foot and ankle weakness associated with her multiple sclerosis. She later received physical therapy for other symptoms, such as side and back pain. Additionally, in 2014, Schmitt underwent a double mastectomy and chemotherapy following a breast cancer diagnosis. As a result of that chemotherapy, she reported increased problems with fatigue, neuropathy, and neuropathic discomfort. However, in a 2015 physical therapy assessment form, Schmitt indicated no limitations with her ability to sit, stand, walk, or participate in repetitive activities.

In 2016, Dr. John O’Regan, a licensed psychologist, examined Schmitt and concluded that she suffered from mild neurocognitive disorder and would have difficulty tolerating the stress and pressure associated with the entry-level workplace. In 2016, Dr. Holker completed a second neuropsychological examination of Schmitt. Schmitt’s examination results revealed a decline from her 2012 examination and indicated mild executive dysfunction, and Dr. Holker concluded that Schmitt would benefit from structure, routine, work environments free from distractions, and written reminders or checklists.

In 2017, Schmitt began visiting Dr. Andrew Smith, a neurologist, who, in 2018, completed a residual functional capacity (RFC) questionnaire and noted that Schmitt experienced fatigue; poor coordination; numbness, tingling, or other sensory disturbance; increased muscle tension; spasticity; pain; difficulty solving problems; and problems with judgment. Dr. Smith estimated that Schmitt would likely be absent from work more than four days per month as a result of her impairments. Also in 2018, Dr. Beaver created a similar report, summarizing his treatment of Schmitt and explaining that she had issues with fatigue, walking, and stability; numbness of the hands; burning pain; spasticity; sensitivity to heat; depression; difficulty remembering; and difficulty with problem solving, judgment, and speech.

-3- Dr. Beaver opined that Schmitt would not be able to maintain sustained gainful employment.

At Schmitt’s hearing before the ALJ, Schmitt, Dr. Karen Butler (a medical expert), and Michael Stern (a vocational expert) testified. Schmitt testified that she has difficulty sustaining concentration, has declining memory, experiences extreme fatigue, and has neuropathy and spasticity in her feet. Schmitt explained that she chose to discontinue taking medication for her multiple sclerosis and recounted that, while she can participate in social activities with up to six people, she finds such activities to be exhausting and confusing. Dr. Butler then testified in regard to Listing 12.02, noting that between 2012 and 2016, Schmitt exhibited a decline in attention, motor function, memory, and processing speed. When asked to evaluate the paragraph B criteria for Listing 12.02, Dr. Butler opined that Schmitt would have work-related limitations requiring Schmitt to find a job in which work is “simple and unskilled” and without a “rapid pace” or “high production goals.” Ultimately, Dr. Butler opined that Schmitt did not meet Listing 12.02. Finally, Mr. Stern testified. The ALJ asked Mr. Stern to consider a hypothetical individual with the age, education, and limitations of Schmitt, and in response, Mr. Stern testified that there are jobs that exist in significant numbers in the national economy, such as a merchandise marker, cashier II, or router. Also before the ALJ were third-party statements from Schmitt’s husband, daughter, friends, and co-workers, as well as an opinion by non-examining state agency psychological consultants who opined that Schmitt was limited to unskilled work.

The ALJ engaged in the required five-step sequential evaluation process set forth by 20 C.F.R. §§ 404

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Sara Schmitt v. Kilolo Kijakazi, Acting Commis, 27 F.4th 1353 (8th Cir. 2022).

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