Sara Allen Schmitt v. Kilolo Kijakazi,1 Acting Commissioner Social Security

United States Court of Appeals
For the Eighth Circuit
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No. 20-3341
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Sara Allen Schmitt
Plaintiff - Appellant
v.
Kilolo Kijakazi,1 Acting Commissioner Social Security
Defendant - Appellee
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 19, 2021
Filed: March 9, 2022
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Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges.
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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).

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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.

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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.

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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. §§ 404.1520(a)(4), asking whether: Schmitt is engaging in
substantial gainful activity (Step 1); Schmitt has a medically determinable
impairment that is severe or a combination of impairments that, together, are severe
(Step 2); the impairment or combination of impairments meets or medically equals
the criteria of a listed impairment (Step 3); Schmitt has the RFC to perform the
requirements of her past relevant work (Step 4); and Schmitt is able to do other types
of work when considering her RFC, age, education, and work experience (Step 5).

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At Step 1, the ALJ determined that Schmitt had not engaged in substantial gainful
activity from the date of alleged onset through the date last insured, and at Step 2,
the ALJ found that Schmitt has several severe impairments, including multiple
sclerosis, remitted breast cancer status post chemotherapy with ongoing neuropathic
pain, and cognitive disorder related to multiple sclerosis or history of chemotherapy
or both. However, at Step 3, the ALJ concluded that Schmitt’s impairments did not
meet or medically equal the severity of a listed impairment. At Steps 4 and 5, the
ALJ determined that Schmitt had an RFC to perform light work, as defined by 20
C.F.R. § 404.1567(b), as long as that work was limited to simple tasks at a
nonproduction pace. Although this determination precluded her from engaging in
her past work as an auditor, the ALJ concluded that Schmitt would be able to do
other work, such as a merchandise marker, cashier II, or router.
The ALJ accorded little weight to the opinion of consultative examiner Dr.
O’Regan because, according to the ALJ, Dr. O’Regan’s opinion was inconsistent
with the evidence overall; specifically, the ALJ found that Dr. O’Regan’s opinion
was inconsistent with the formal neuropsychological testing results and the absence
of mental health treatment through the date last insured and was not well explained
or well supported. The ALJ accorded some weight to the non-examining state
agency psychological consultants, to the extent that those consultants’ opinions were
consistent with the other evidence. The ALJ accorded little weight to the five
third-party statements because those statements were authored after the date last
insured and discussed Schmitt’s current impairments, symptoms, and limitations
rather than her impairments, symptoms, and limitations as of the date last insured.
The ALJ accorded the most weight to Dr. Butler’s testimony because her testimony
was supported by specific citations to the record, subject to cross-examination, and
“completely consistent” with the record evidence. Ultimately, on November 15,
2018, the ALJ concluded that Schmitt was not disabled and denied her application
for DIB.
Schmitt sought review from the Appeals Council, but the Appeals Council
declined review. Schmitt then filed a complaint in the district court, seeking review

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of the Commissioner’s final decision. Schmitt and the Commissioner filed
cross-motions for summary judgment. On July 30, 2020, the magistrate judge issued
an R&R, recommending that the district court deny Schmitt’s motion for summary
judgment and grant the Commissioner’s motion for summary judgment. Schmitt
filed objections to the R&R, but on September 10, 2020, the district court adopted
the R&R in full, granting the Commissioner’s motion and denying Schmitt’s motion.
Schmitt now appeals.
II.
On appeal, Schmitt challenges two of the ALJ’s findings: first, the finding that
Schmitt’s impairments did not meet or medically equal Listing 11.09B or 12.02 and
second, that Schmitt had the RFC to do light work. Schmitt argues that neither
finding was supported by substantial evidence on the record as a whole. “We review
de novo the district court’s decision to affirm the ALJ’s denial of social security
DIB . . . .” Gann v. Berryhill, 864 F.3d 947, 950 (8th Cir. 2017). “Because the
Appeals Council declined review, the ALJ’s decision is the final decision of the
Commissioner.” Combs v. Berryhill, 878 F.3d 642, 645 (8th Cir. 2017) (citation
omitted). “We review the ALJ’s denial of disability insurance benefits de novo to
ensure that there was no legal error and that the findings of fact are supported by
substantial evidence on the record as a whole.” Id. at 645-46 (citation omitted).
“‘Substantial evidence in the record as a whole’ is a more ‘rigorous’ standard than
simply ‘substantial evidence,’ which is ‘evidence that a reasonable mind might
accept as adequate to support [the Commissioner’s] conclusion.’” Koch v. Kijakazi,
4 F.4th 656, 663 (8th Cir. 2021) (alteration in original) (citation omitted). Rather,
“[w]e must consider evidence in the record that fairly detracts from, as well as
supports, the ALJ’s decision.” Delph v. Astrue, 538 F.3d 940, 945 (8th Cir. 2008).
“However, we will not reverse the Commissioner’s decision merely because we find
that ‘substantial evidence exists in the record that would have supported a contrary
outcome.’” Koch, 4 F.4th at 663 (quoting Young v. Apfel, 221 F.3d 1065, 1068 (8th
Cir. 2000)).

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“The burden of proof is on the plaintiff to establish that his or her impairment
meets or equals a listing. To meet a listing, an impairment must meet all of the
listing’s specified criteria.” Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir.
2004) (citation omitted). “An impairment that manifests only some of those criteria,
no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530
(1990). “For a claimant to qualify for benefits by showing that [her] unlisted
impairment, or combination of impairments, is ‘equivalent’ to a listed impairment,
[she] must present medical findings equal in severity to all the criteria for the one
most similar listed impairment.” Id. at 531 (citation omitted).
Listing 12.02 (“Neurocognitive disorders”) contains paragraph A and
paragraph B criteria, with paragraph A specifying the medical criteria that must be
present in the claimant’s medical evidence and paragraph B specifying the functional
criteria used to evaluate the limitations of the claimant’s disorder. Neurocognitive
disorders “are characterized by a clinically significant decline in cognitive
functioning,” with symptoms including “disturbances in memory, executive
functioning[,] . . . visual-spatial functioning, language and speech, perception,
insight, judgment, and insensitivity to social standards.” 20 C.F.R. Pt. 404, Subpt.
P, App. 1 § 12.00(B)(1)(a). The paragraph B criteria for Listing 12.02 requires that
the claimant’s disorder result in an “[e]xtreme limitation of one, or marked limitation
of two,” listed areas of “mental functioning,” which include understanding,
remembering, or applying information; interacting with others; concentrating,
persisting, or maintaining pace; and adapting or managing oneself. 20 C.F.R. Pt.
404, Subpt. P, App. 1 § 12.02. Alternatively, Listing 11.09B (“Multiple sclerosis”)
is met if there is a “[m]arked limitation” in “physical functioning” and in one of the
four areas of mental functioning: understanding, remembering, or applying
information; interacting with others; concentrating, persisting, or maintaining pace;
and adapting or managing oneself. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 11.09(B).4
4 The ALJ also considered Listing 11.09A, which is met if there is an extreme
limitation resulting from disorganization of motor function in two extremities. See
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 11.09(A). However, Schmitt’s appeal is limited

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Schmitt argues that Listing 11.09B was the listing most compatible with her
impairments because it recognizes multiple sclerosis and the fatigue and cognitive
impairments associated with multiple sclerosis. Schmitt further argues that because
Dr. Butler only testified to Schmitt’s inability to meet Listing 12.02, which does not
consider fatigue, Dr. Butler did not account for Schmitt’s fatigue in her analysis. See
Appellant Br. 23 (“[Schmitt’s] [c]ounsel suggested that the [multiple sclerosis]
listing was the more applicable listing than 12.02 because listing 11.09B considers
fatigue which is a debilitating symptom of [multiple sclerosis] . . . . [Schmitt’s]
[c]ounsel specifically indicated that Dr. Butler could only testify to the cognitive
deficits under 12.02 and that it doesn’t factor in the fatigue.”).
However, we find that there is substantial evidence in the record as a whole
to support the ALJ’s determination that Schmitt’s impairments did not meet or
medically equal Listing 11.09B or 12.02. The ALJ explained that, with respect to
Listing 12.02, Schmitt did exhibit some moderate limitations in some areas, such as
understanding, remembering, or applying information and in interacting with others,
but she was able to remind herself to take medications, prepare meals, manage her
finances, and travel outside of the home unaccompanied. Additionally, she enjoyed
shopping, socialized in small groups, attended events such as the farmers’ market,
and regularly visited her elderly mother. The ALJ concluded that Schmitt’s mental
impairment did not cause at least two marked limitations or one extreme limitation,
as required by the paragraph B criteria for Listing 12.02. Similarly, with respect to
Listing 11.09B, the ALJ found that although Schmitt’s medical records revealed
several minor deficiencies, such as a subtle tremor in her left hand and mild
executive dysfunction, those records did not indicate a marked limitation in physical
functioning and one of the four areas of mental functioning as required by Listing
11.09B.
to Listing 11.09B, so we do not consider whether there is substantial evidence in the
record as a whole to support the ALJ’s finding that Schmitt does not have an extreme
limitation resulting from disorganization of motor function in two extremities.

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Although Schmitt contends that the ALJ should have considered her fatigue,
the ALJ expressly acknowledged Schmitt’s argument before concluding “that the
ratings that the medical expert [(i.e., Dr. Butler)] assigned already factor in the
effects of fatigue.” Further, as the district court explained, the record featured little
evidence of treatment for fatigue, and the issue is not whether Schmitt experienced
fatigue as a result of her multiple sclerosis, which we do not doubt, but whether she
has established that her fatigue is disabling. See Blakeman v. Astrue, 509 F.3d 878,
882 (8th Cir. 2007). Ultimately, we conclude that substantial evidence in the record
as a whole supports the ALJ’s determination that Schmitt’s impairments did not meet
or medically equal Listing 11.09B or 12.02.
Schmitt also asserts that substantial evidence does not support the ALJ’s
finding that she could perform “light work.” A claimant’s RFC is “the most” that
the claimant can do in a work setting despite her limitations. See 20 C.F.R.
§ 404.1545(a)(1). “The Commissioner must determine a claimant’s RFC based on
all of the relevant evidence, including the medical records, observations of treating
physicians and others, and an individual’s own description of [her] limitations.”
Hensley v. Colvin, 829 F.3d 926, 931-32 (8th Cir. 2016) (citation omitted).
“‘Because a claimant’s RFC is a medical question, an ALJ’s assessment of it must
be supported by some medical evidence of the claimant’s ability to function in the
workplace.’ However, there is no requirement that an RFC finding be supported by
a specific medical opinion.” Id. at 932 (citation omitted). “[I]n evaluating a
claimant’s RFC, an ALJ is not limited to considering medical evidence exclusively.
Even though the RFC assessment draws from medical sources for support, it is
ultimately an administrative determination reserved to the Commissioner.” Cox v.
Astrue, 495 F.3d 614, 619-20 (8th Cir. 2007) (citation omitted); cf. Combs, 878 F.3d
at 646 (“The ALJ ‘may not simply draw his own inferences about plaintiff’s
functional ability from medical reports.’” (citation omitted)).
The ALJ justified its RFC determination by explaining that Schmitt’s
subjective allegations of symptoms (regarding the intensity, persistence, and limiting
effects of those symptoms) were inconsistent with the objective medical evidence

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and her activities of daily living. For example, the ALJ noted that, contrary to
Schmitt’s complaints of extreme limitations, her gait was unimpaired, she was able
to drive, she was planning a vacation to Mexico, and her neuropsychological
functioning was within normal limits. Although Schmitt argues that the ALJ erred
by attributing little weight to her treating physicians’ opinions, the ALJ provided
legitimate reasons for discounting those opinions: Dr. Beaver’s opinion alternated
between reciting current symptoms and opining that Schmitt’s limitations would
have applied since 2012, and Dr. Smith began treating Schmitt after the date last
insured. See Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012) (“‘[A]n ALJ
may discount or even disregard the opinion of a treating physician where other
medical assessments are supported by better or more thorough medical evidence, or
where a treating physician renders inconsistent opinions that undermine the
credibility of such opinions.’ Ultimately, the ALJ must ‘give good reasons’ to
explain the weight given the treating physician’s opinion.” (citations omitted)).
Further, although Schmitt may disagree with how the ALJ weighed her subjective
complaints against the objective evidence, the ALJ’s analysis was guided by factors
previously endorsed by this Court, such as Schmitt’s daily activities and functional
restrictions. See, e.g., Noerper v. Saul, 964 F.3d 738, 745 (8th Cir. 2020) (citing
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). Despite Schmitt’s
dissatisfaction with how the ALJ weighed the evidence, it is not this Court’s role to
reweigh that evidence. See Johnson v. Colvin, 788 F.3d 870, 872 (8th Cir. 2015).
Schmitt also argues that the ALJ erred by attributing little weight to the
third-party statements provided, “[b]ut an ALJ properly may give less than
controlling weight to lay-witness statements that are inconsistent with the record.”
Schwandt v. Berryhill, 926 F.3d 1004, 1012 (8th Cir. 2019). Although not required
to give an explanation as to the weight attributed to these third-party statements, see
Igo v. Colvin, 839 F.3d 724, 731 (8th Cir. 2016), the ALJ explained that the third-
party statements describe recent limitations observed after the relevant time period
(i.e., between the alleged onset date of January 12, 2012, and the insurance status
expiration date of December 31, 2016). In conclusion, we find that substantial
evidence in the record as a whole supports the ALJ’s RFC determination.

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III.
For the foregoing reasons, we affirm the judgment of the district court.
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