Bonnie Hilkemeyer v. Jo Anne Barnhart ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2440
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Bonnie Hilkemeyer, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Jo Anne B. Barnhart, Commissioner *
of Social Security, *
*
Appellee. *
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Submitted: February 13, 2004
Filed: August 26, 2004
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Before LOKEN, Chief Judge, BOWMAN and WOLLMAN, Circuit Judges.
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BOWMAN, Circuit Judge.
Bonnie Hilkemeyer appeals from the order of the District Court1 granting
summary judgment to the Commissioner of the Social Security Administration on
Hilkemeyer's application for supplemental security income ("SSI") benefits. We
affirm.
1
The Honorable Sarah W. Hays, United States Magistrate Judge for the
Western District of Missouri, to whom the case was referred for decision by consent
of the parties pursuant to 28 U.S.C. § 636(c) (2000).
The Commissioner denied Hilkemeyer's application for benefits both initially
and upon reconsideration. Hilkemeyer then requested a hearing, which took place in
June 2000. On January 10, 2001, the administrative law judge ("ALJ") rendered her
decision that Hilkemeyer was not eligible for SSI benefits because she did not suffer
from a disability sufficient to entitle her to benefits under the Social Security Act.
See 42 U.S.C. § 1382c(a)(3)(A) (2000) ("[A]n individual shall be considered to be
disabled . . . if he is unable to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period
of not less than twelve months."). The Appeals Council denied review of the ALJ's
decision, which thus stands as the final decision of the Commissioner.
In her initial application, Hilkemeyer alleged that she became unable to work
as of June 1, 1998, but at the hearing she amended her onset-of-disability date to
April 26, 1999. At the time of the hearing, Hilkemeyer was 39 years old, had
completed the tenth grade, had not received her GED, and had no vocational training.
She had a limited work history, which included jobs as a cashier, photograph printer,
lens cleaner, and some minimal experience working at a book bindery. Hilkemeyer
claimed that she was entitled to SSI benefits based on severe exertional and non-
exertional impairments.
From 1998 through 2000, Hilkemeyer saw several doctors and other health-
care providers for a variety of mental and physical complaints. In June 1998,
Hilkemeyer received a diagnosis of depression from Kay Barney, D.O. From June
1998 through May 2000, Hilkemeyer sought treatment for depression from
psychiatrist Sreekumar Nair, M.D. In June 1998, Dr. Nair diagnosed Hilkemeyer as
suffering from major depressive disorder and dysthymic disorder. In July 1999,
Hilkemeyer was examined by a psychologist, Alan Israel, who diagnosed delayed-
onset post-traumatic stress disorder, dysthymic disorder, and obsessive-compulsive
personality disorder. He opined that Hilkemeyer would have difficulty adapting to
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any work-related environment that included men. In contrast, Dr. Nair, who had
continued treating Hilkemeyer for depression, noted in August 1999 that she was
"much improved." Tri-County Mental Health Servs., Inc., Psychiatric Progress Notes
(Aug. 6, 1999). In January 2000, Hilkemeyer decompensated and was admitted to the
North Kansas City Hospital. Upon discharge Mohammed Mirza, M.D., diagnosed her
with "bipolar disorder, type II, with depression and some paranoid thinking." North
Kansas City Hospital, Discharge Summary at 1 (Jan. 21, 2000). Nonetheless, by
March 2000, Dr. Nair noted that Hilkemeyer was "doing better" and was stable. Tri-
County Medical Health Servs., Inc., Integrated Progress Notes (Mar. 17, 2000). In
July 2000, Hilkemeyer's mental status was evaluated by another psychologist,
Franklin Boraks, who diagnosed panic disorder with agoraphobia, major depression
and obsessive-compulsive disorder.
In addition to these complaints of mental disorders, Hilkemeyer sought
treatment for a variety of physical ailments from 1998 to 2000. In June 1999,
Hilkemeyer complained of swelling in her left hand, but x-rays demonstrated normal
anatomy throughout. A sleep study conducted in July 1999 indicated moderately
severe sleep apnea, but the condition was improved by the use of a continuous
positive airway pressure ("CPAP") machine. Despite complaints of right knee pain
in March and April 2000, x-rays indicated no abnormality.
At the hearing, Hilkemeyer testified that she had pain in her right knee, which
limited her ability to stand for long periods of time. Similarly, she indicated an old
wrist injury restricted her ability to lift more than five pounds. She testified to
shortness of breath and to the use of inhalers to treat asthma but admitted that she
continued to smoke. She indicated that she had difficulty being around men, but
revealed that she had lived with a man until the day before the hearing. She testified
to keeping up with the household chores such as vacuuming, doing laundry, and
cleaning. She indicated that she drove herself to doctor's appointments and to the
grocery store. As to her mental faculties, Hilkemeyer testified to difficulties with her
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short-term memory and, because of recurring nightmares, with her sleep patterns. She
further testified to feeling anxious while in crowds and to wanting to spend most of
her time in her apartment away from others. She claimed that she had left former
employment due to mental stress occasioned by dealing with her co-workers.
In her written decision, the ALJ carefully worked through the five-step
sequential analysis to determine whether Hilkemeyer was disabled and entitled to SSI
benefits. See 20 C.F.R. § 416.920(a)(4)(i)–(v) (2004) (setting forth the five-step
analysis). The ALJ first determined that Hilkemeyer had not performed any
substantial gainful activity while her application was pending. At the second step,
the ALJ noted that the medical evidence in the record established that Hilkemeyer had
a severe affective disorder,2 but the ALJ determined that the diagnosed post-traumatic
stress disorder, obsessive-compulsive disorder, and dysthymia were either non-severe
or not corroborated by clinical evidence in the record. She further determined that
the alleged physical impairments—the right knee disorder, sleep apnea and
pulmonary dysfunction—were not severe. Next, the ALJ determined that
Hilkemeyer's affective disorder did not reach listing level. See 20 C.F.R. pt. 404,
subpt. P, app. 1 § 12.04 (detailing the required level of severity for affective disorders
to entitle a claimant to benefits under 20 C.F.R. § 416.920(a)(4)(iii)). The ALJ
considered all the medical evidence she found credible and determined that
Hilkemeyer had the RFC to perform medium or light work, so long as she was limited
to simple repetitive tasks with no work with the public and a low degree of contact
with her co-workers and supervisors. In light of Hilkemeyer's sporadic work history,
the ALJ determined that there was no past relevant work to which she could return.
2
An affective disorder is a "severe mental disorder marked by periods of
extreme depression or elation." 1 J. E. Schmidt, Attorney's Dictionary of Medicine
and Word Finder at A-185 (perm. ed., rev. vol. 2003).
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At the hearing, the ALJ had taken the testimony of a vocational expert ("VE").
The ALJ asked the VE whether jobs existed in the national economy for an individual
of the same age, education, and work experience as Hilkemeyer, who had the residual
functional capacity ("RFC") to perform medium work, and who could only perform
simple, repetitive tasks, with no work with the public, and with limited contact with
co-workers and supervisors. The VE testified that there were numerous jobs widely
available in the national and regional economies for such an individual, including
order picker, machine tender, photocopy-machine operator, and light cleaner. Based
on the VE's testimony, the ALJ concluded that, in view of Hilkemeyer's ability to
perform jobs available in the national economy requiring only medium or light work,
she was not disabled. 20 C.F.R. pt. 404, subpt. P, app. 2, R. 202.18 & 203.25.
In this appeal, Hilkemeyer argues that the evidence in the record does not
support the ALJ's findings. She also argues that the hypothetical question posed to
the VE was defective because it was based upon an RFC finding that is not supported
by the evidence. For the reasons set forth below, we affirm.
We have jurisdiction under 42 U.S.C. § 1383(c) (2000). "We must affirm the
ALJ's decision if it is supported by substantial evidence on the record as a whole."
Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 646 (8th Cir. 2004) (citing 42 U.S.C.
§ 405(g)). Our review is deferential; we may not substitute our judgment for that of
the ALJ. Garrett, 366 F.3d at 646. Substantial evidence is less than a preponderance,
and it merely requires that the record contain evidence sufficient for a reasonable
individual to find it adequate to support the conclusions drawn by the ALJ.
Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004).
Hilkemeyer first argues that the ALJ did not properly determine the severity of
her impairment. Although Hilkemeyer argues otherwise, the ALJ's written decision
is clear and explains that, despite Hilkemeyer's complaints of numerous physical and
mental impairments, the clinical evidence in the record supports only a conclusion
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that her affective disorder was a severe impairment. Social Security Administration
Office of Hearings and Appeals, Decision at 2 (Jan. 10, 2001). The ALJ thoroughly
considered all of the medical evidence in reaching this conclusion, which is based on
substantial evidence in the record as a whole. The ALJ carefully considered the
evidence from Hilkemeyer's treating sources,3 who all agreed that Hilkemeyer was
suffering from a depression. The ALJ noted that the diagnoses of other mental
disorders by others who examined Hilkemeyer, such as Boraks and Israel, were not
consistent with the diagnoses in the treatment record nor with their own notes and
examinations, so the ALJ refused to give them significant weight. The record
evidence shows that the only consistent diagnosis from Hilkemeyer's treating sources
was affective disorder; thus the ALJ was justified in rejecting diagnoses of other
mental disorders by sources who conducted a single examination of Hilkemeyer, and
whose conclusions seemed to be based solely upon her subjective complaints.
Furthermore, substantial evidence supported the ALJ's conclusion that Hilkemeyer's
physical impairments were non-severe: the sleep apnea was ameliorated by use of a
CPAP machine and x-rays and MRI results indicated no knee abnormalities.
Hilkemeyer also argues that the ALJ erred in failing to conclude that Hilkemyer
was disabled under Listings 12.04 and 12.08. See 20 C.F.R. pt. 404, subpt. P, app.
1 §§ 12.04 (affective disorders) & 12.08 (personality disorders). Because the ALJ's
determination that Hilkemeyer's only severe impairment was an affective disorder is
supported by substantial evidence, the only relevant listing at step three of the
analysis was Listing 12.04. The ALJ's decision to reject considering Hilkemeyer's
claim under other listings is supported by substantial evidence. Furthermore, her
3
Hilkemeyer claims that the ALJ fails to identify these treating sources, but, in
her decision, the ALJ clearly referenced the reports of those individuals who are
treating sources. Soc. Sec. Admin. Office of Hearings & Appeals, Decision at 3, 5
(Jan. 10, 2001). Furthermore, at the hearing Hilkemeyer recognized Dr. Nair as her
treating psychiatrist. Soc. Sec. Admin. Office of Hearings and Appeals, Tr. of Oral
Hearing at 3 (June 23, 2000).
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determination that Hilkemeyer's affective disorder does not reach listing level is also
supported by substantial evidence. Before an affective disorder is sufficiently severe
that it leads to the automatic payment of SSI benefits under § 416.920(a)(4)(iii), it
must result in at least two of the following: "1. Marked restriction of activities of
daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked
difficulties in maintaining concentration, persistence or pace; or 4. Repeated episodes
of decompensation." 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.04(B). Hilkemeyer's
disorder only led to slight restrictions on the activities of daily living: she testified
that she is able to do minor household chores, drive to her doctor's appointments, and
go grocery shopping with the aid of her daughter. Hilkemeyer's moderate social
dysfunction was not sufficient to meet listing requirements. Furthermore, medical
evidence from treating and examining sources alike indicated that her abilities to
concentrate and remember were in the normal range. See Campbell & Associates,
Psychological Eval. Report at 2, 3 (July 31, 2000); Alan R. Israel, Consultative
Examination Report at 2, 3 (July 13, 1999); Tri-County Mental Health Servs., Inc.,
Initial Psychiatric Eval. at 2 (June 30, 1998). Finally, substantial evidence supported
the ALJ's determination that Hilkemeyer had suffered only a single episode of
decompensation of extended duration. The ALJ did not err in determining that
Hilkemeyer's affective disorder did not reach listing level.
Hilkemeyer argues that the ALJ erred in finding Hilkemeyer had the RFC to
perform medium or light work. We disagree. The ALJ's RFC determination is based
on substantial evidence in the record. In examining all the relevant credible evidence
in the record, 20 C.F.R. § 416.945, the ALJ properly determined that Hilkemeyer
retained the residual functional capacity for a range of medium to light work, so long
as it was restricted to simple repetitive tasks, with no work with the public, and with
a limited degree of contact with co-workers and supervisors. The evidence from
various examiners is that Hilkemeyer's memory and concentration abilities were in
the normal range, so the ALJ did not err when she determined that Hilkemeyer's
purported memory difficulties were not sufficient to limit her ability to perform
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simple tasks. Similarly, substantial evidence supported the ALJ's conclusion that
Hilkemeyer suffered from moderate social dysfunction, which the ALJ took into
account by not requiring Hilkemeyer to perform work with the public and to have
only limited contact with co-workers and supervisors.
Hilkemeyer argues that due to her pulmonary dysfunction her RFC should have
limited her exposure to fumes, odors, dust, gases, and poor ventilation. Medical
evidence in the record indicated only a mild pulmonary dysfunction. The ALJ's
decision not to incorporate this mild pulmonary dysfunction in the RFC, as well as
in the hypothetical posed to the VE, was not error because the record does not suggest
there were any limitations caused by this nonsevere impairment.4 The VE's testimony
that Hilkemeyer could perform work in the national economy provided substantial
evidence in support of the ALJ's determination that Hilkemeyer was not disabled.
Miller v. Shalala, 8 F.3d 611, 613 (8th Cir. 1993) (per curiam).
For the reasons set forth above, we affirm the District Court's order.
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4
Hilkemeyer also argues that the ALJ should have recognized limits imposed
by Hilkemeyer's pulmonary dysfunction because such limits were recognized in the
physical RFC determination made upon Hilkemeyer's initial application for SSI
benefits. We reject this argument because the ALJ is not bound by such earlier
findings. See 20 C.F.R. 416.946(c) ("If your case is at the [ALJ] hearing level . . . the
[ALJ] . . . is responsible for assessing your [RFC].").
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