United States District Court, D. Minnesota
Kenneth R. Scherkenbach, Plaintiff,
Andrew M. Saul, Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
A. Magnuson United States District Court Judge
matter is before Court on the parties' cross-Motions for
Summary Judgment. For the following reasons, Plaintiff's
Motion is denied and Defendant's Motion is granted.
Kenneth Scherkenbach filed an application for disability
insurance benefits on February 16, 2017, alleging that he has
been disabled since November 12, 2016, when he suffered an
acute respiratory event following surgery to address
idiopathic thrombocytic purpura (“ITP”), a
condition that results in dangerously low platelet counts. As
a result of the respiratory event, he suffered multiorgan
failure and was in the intensive care unit for several weeks,
after which he exhibited significant mental status changes.
Scherkenbach contends that his ITP, combined with a hip
replacement, depression, anxiety, and cognitive impairments
render him unable to work.
individual is considered disabled for purposes of Social
Security Disability Insurance benefits 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.” 42 U.S.C. §
1382c(a)(3)(A). In addition, an individual is disabled
“only if his physical or mental impairment or
impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national
economy.” Id. § 1382c(a)(3)(B).
“[A] physical or mental impairment is an impairment
that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.”
Id. § 1382c(a)(3)(D).
Commissioner has established a sequential, five-step
evaluation process to determine whether an individual is
disabled. 20 C.F.R. § 416.920(a)(4). At step one, the
claimant must establish that he is not engaged in any
“substantial gainful activity.” Id.
§ 416.920(a)(4)(i). If he is not, the claimant must then
establish that he has a severe medically determinable
impairment or combination of impairments at step two.
Id. § 416.920(a)(4)(ii). At step three the
Commissioner must find that the claimant is disabled, if the
claimant satisfies the first two steps and the claimant's
impairment meets or is medically equal to one of the listings
in 20 C.F.R. Part 404, Subpart P, App'x 1. Id.
§ 416.920(a)(4)(iii). If the claimant's impairment
does not meet or is not medically equal to one of the
listings, the evaluation proceeds to step four. The claimant
then bears the burden of establishing his residual functional
capacity (“RFC”) and proving that he cannot
perform any past relevant work. Id. §
416.920(a)(4)(iv); Young v. Apfel, 221 F.3d 1065,
1069 n.5 (8th Cir. 2000). If the claimant proves he is unable
to perform any past relevant work, the burden shifts to the
Commissioner to establish at step five that the claimant can
perform other work existing in a significant number of jobs
in the national economy. Bowen v. Yuckert, 482 U.S.
137, 146 n.5 (1987). If the claimant can perform such work,
the Commissioner will find that the claimant is not disabled.
20 C.F.R. § 416.920(a)(4)(v).
Administrative Law Judge (“ALJ”) determined after
a hearing that Scherkenbach had several severe impairments:
idiopathic thrombocytic purpura, avascular necrosis of
bilateral hips resulting in a total left hip replacement in
May 2017, major depressive disorder and anxiety disorder, and
mild cognitive impairment. (Admin. R. at 18.) The ALJ noted
two other impairments-chronic sleep apnea and chronic kidney
disease-but found that Scherkenbach experienced no functional
limitations as a result of these conditions, and thus that
they did not qualify as severe impairments. (Id. at
then determined that none of Scherkenbach's severe
impairments met or medically equaled the requirements of
listed impairments. (Id. at 19-21.) The ALJ found
that Scherkenbach's residual functional capacity allowed
him to perform work that exists in significant numbers in the
national economy. (Id. at 21-27.) Thus, the ALJ
determined that Scherkenbach was not disabled. (Id.
brought this lawsuit under 42 U.S.C. § 405(g), after the
Appeals Council affirmed the ALJ's determination that he
was not disabled. Scherkenbach contends that the ALJ erred in
determining that his depression and anxiety were not
disabling. According to Scherkenbach, the record establishes
both that he would have difficulty with even superficial
interaction with the public and that he is incapable of
working at an appropriate and consistent pace. Scherkenbach
also challenges the ALJ's residual functional capacity
finding, arguing that it is not supported by substantial
evidence. In particular, Scherkenbach argues that the record
establishes that he would miss work so often that he would be
unable to hold down a job. And Scherkenbach contends that the
ALJ's evaluation of the mental-health evidence was
flawed, as the evidence established a severe mental
impairment. Scherkenbach also argues that the ALJ should not
have relied on the opinion of a state agency doctor, because
that doctor did not have all of the evidence establishing the
extent of Scherkenbach's mental impairments. Finally,
Scherkenbach contends that the ALJ erred in evaluating his
Court's review of the Commissioner's decision is
limited to determining whether that decision is
“supported by substantial evidence on the record as a
whole.” McKinney v. Apfel, 228 F.3d 860, 863
(8th Cir. 2000). “Substantial evidence . . . is more
than a mere scintilla.” Biestek v. Berryhill,
139 S.Ct. 1148, 1154 (2019) (quotation omitted). It is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Id. (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). As long as substantial
evidence in the record supports the Commissioner's
decision, the Court may not reverse it because substantial
evidence exists in the record that would have supported a
contrary outcome or because the Court would have decided the
case differently. McKinney, 228 F.3d at 863.
12.04 and 12.06 govern the mental impairments Scherkenbach
claims here. Both Listings have three paragraphs, and in
Scherkenbach's case, he is required to establish that he
satisfied both paragraphs B and C of the Listings. 20 C.F.R.
Pt. 404, Subpt. P, App. 1 § 12.00(A)(2).
satisfy paragraph B, Scherkenbach must prove that he had a
marked limitation in two of the four outlined areas of mental
functioning. Id. § 12.00(A)(2)(b). A marked
limitation means that Scherkenbach's mental functioning
“independently, appropriately, effectively, and on a
sustained basis is seriously limited.” Id.
§ 12.00(F)(2)(d). Scherkenbach contends that evidence in
the record establishes that he had marked limitations in both
social functioning and concentration, persistence or pace.
But as the Commissioner points out, there was other evidence
in the record that Scherkenbach's functioning was not
marked, and indeed that Scherkenbach has exhibited improved
mental functioning in more recent mental health records. The
ALJ noted Scherkenbach's testimony regarding his daily
activities, which at most established that he had ...