Petition for Writ of Certiorari — Christine Louise Kensinger, Petitioner v. Frank Bisignano, Commissioner of Social Security, et al.

®tutefc States* Court of Sppalg

Jfor tfje Cig-ljtlj Circuit

No. 24-2113

Christine Louise Kensinger

Plaintiff - Appellant

v.

Michelle King, Acting Commissioner of the Social Security Administration1;

Judge Walter Heliums, Administrative Law Judge

Defendants - Appellees

Appeal from United States District Court

for the Western District of Missouri - Springfield

Submitted: February 6, 2025

Filed: February 12, 2025

[Unpublished]

Before LOKEN, KELLY, and ERICKSON, Circuit Judges.

PER CURIAM.

Michelle King has been appointed to serve as Acting Commissioner of the

Social Security Administration, and is substituted as appellee pursuant to Federal

Rule of Appellate Procedure 43(c).

Christine Kensinger appeals .the district court’ s2 order affirming the denial of

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disability insurance benefits. We agree with the court that substantial evidence in the

record as a whole supports the adverse decision. See Swink v. Saul 931 F.3d 765,

769 (8th Cir. 2019) (standard of review).

Specifically, we find that substantial evidence supported the Administrative

Law Judge’s (ALJ’s) conclusion that Kensinger’s exposure to mold was not a severe

impairment. See Page v. Astrue, 484 F.3d 1040, 1044 (8th Cir. 2007). The ALJ did

not err in discounting the medical opinions on housing assistance forms, which did

not identify specific functional limitations, and used a definition of “disability” that

differs from the definition of “disability” in the Social Security Act. See 42 U.S.C.

§ 423(d)(1); KKC v. Colvm, 818 F.3d 364, 371 (8th Cir. 2016). While Kensinger

also argues that the ALJ erred in failing to consider records from her chiropractic

provider, that is not an acceptable medical source for determining disability. See

Miller v. Colvin. 784 F.3d 472, 478 (8th Cir. 2015); Craig v. Apfel 212 F.3d 433,

436 (8th Cir. 2000).

Accordingly, we affirm the judgment of the district court. We also deny

Kensinger’s motion to supplement the record on appeal.

2The Honorable Brian C. Wimes, United States District Judge for the Western

District of Missouri.

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 24-2113

Christine Louise Kensinger

Plaintiff - Appellant

v.

Michelle King, Acting Commissioner of the Social Security Administration; Judge Walter

Heliums, Administrative Law Judge

Defendants - Appellees

Appeal from U.S. District Court for the Western District of Missouri - Springfield

(6:23-cv-03327-BCW)

JUDGMENT

Before LOKEN, KELLY, and ERICKSON, Circuit Judges.

This appeal from the United States District Court was submitted on the record of the

district court and briefs of the parties.

After consideration, it is hereby ordered and adjudged that the judgment of the district

court in this cause is affirmed in accordance with the opinion of this Court.

February 12, 2025

Order Entered in Accordance with Opinion:

Acting Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Maureen W. Gornik

Appellate Case: 24-2113

Page: 1

Date Filed: 02/12/2025 Entry ID: 5484923

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 24-2113

Christine Louise Kensinger

Appellant

v.

Michelle King, Acting Commissioner of the Social Security Administration and Judge Walter

Heliums, Administrative Law Judge

Appellees

Appeal from U.S. District Court for the Western District of Missouri - Springfield

(6:23-cv-03327-BCW)

MANDATE

In accordance with the opinion and judgment of February 12, 2025, and pursuant to the

provisions of Federal Rule of Appellate Procedure 41(a), the formal mandate is hereby issued in

the above-styled matter.

April 21, 2025

Clerk, U.S. Court of Appeals, Eighth Circuit

Appellate Case: 24-2113

Page: 1

Date Filed: 04/21/2025 Entry ID: 5508187

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

SOUTHERN DIVISION

CHRISTINE LOUISE KENSINGER

Plaintiff,

v.

SOCIAL SECURITY

ADMINISTRATION et al., 1

Defendants.

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Case No. 6:23-CV-03327-BCW

ORDER

Before the Court is Plaintiffs pro se brief seeking judicial review of a final decision of

Defendant Social Security Administration (Doc. #7), Defendant’s brief in support of the

administrative decision and in response to Plaintiffs brief (Doc. #8), and Plaintiffs reply (Doc.

#9).

BACKGROUND

This matter involves the appeal of the Commissioner’s final decision denying Plaintiffs

application for a period of disability and disability insurance benefits under Title II of the Social

Security Act, 42 U.S.C. § 401. The Court may review the Commissioner’s final decision pursuant

to 42 U.S.C. § 405(g).

On February 10, 2021, Plaintiff filed a Title II application alleging disability beginning

November 18, 2016. (Doc. #6-3). The claim was initially denied on June 30, 2021, and denied

upon reconsideration on November 17, 2021. Plaintiffs claim was further reviewed by an

1 Plaintiff filed her complaint against the Social Security Administration and Administrative Law Judge Walter

Heliums.

Case 6:23-cv-03327-BCW

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administrative law j udge (“AL J”) during a hearing held on February 13,2023.2 The AL J ultimately

found Plaintiff was not disabled.

The ALJ’s Findings and Conclusions are summarized as follows: (1) Plaintiff has not

engaged in substantial gainful activity since January 29,2019; (2) Plaintiff has the following severe

impairments: cervical spine degenerative changes, thoracolumbar degenerative changes, right

knee degenerative changes, and hyperthyroidism (20 CFR 404.1520(c)); (3) Plaintiffs

impairments do not meet or medically equal a listed impairment in 20 C.F.R. Part 404, Subpart P,

Appendix 1; (4) Plaintiff has the residual functional capacity (“RFC”) to perform the full range of

medium work as defined in 20 CFR 404.1567(c); (5) under this expedited process, the ALJ

proceeded directly to step five of the sequential evaluation process because the ALJ had

insufficient information about Plaintiffs past relevant work history to make the findings required

at step four (20 CFR 404.1520(h)); (6) Plaintiff was 40 years old at the time of her application for

benefits; (6) Plaintiff has at least a high school education; (7) transferability of job skills is not an

issue; (8) considering Plaintiffs age, education, work experience, and RFC, jobs exist in

significant numbers in the national economy which Plaintiff can perform, such as Box Bender,

Stores laborer, and Packager; and (9) based on the foregoing, Plaintiff has not been under a

disability for the relevant period. (Doc. #6-3).

LEGAL STANDARD

The Court must determine whether the Commissioner’s finding that Plaintiff is not disabled

was “supported by substantial evidence on the record as a whole.” Gragg v. Astrue. 615 F.3d 932,

938 (8th Cir. 2010) (citation omitted). This determination requires review of the entire record,

including both evidence in support of, and in opposition to, the Commissioner’s decision. Fountain

2 Plaintiff discharged her attorney on February 7,2023. At the hearing, the ALJ informed Plaintiff of her right to

representation but Plaintiff chose to proceed with the hearing and testily without assistance of counsel. (Doc. #6-3 at

11).

Case 6:23-cv-03327-BCW

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v. R.R. Ret. Bd., 88 F.3d 528, 530 (8th Cir. 1996). “The court’s role is not to reweigh the evidence

or try the issues de novo.” Craig v. Chater, 943 F. Supp. 1184, 1188 (W.D. Mo. 1996) (citing

McClees v. Shalala, 2 F.3d 301,302 (8th Cir. 1994)). When supported by substantial evidence, the

Commissioner’s findings are conclusive and must be affirmed. Richardson v. Perales, 402 U.S.

389, 401 (1971).

Substantial evidence means “more than a mere scintilla” of evidence. Id Rather, it “is

relevant evidence that a reasonable mind would accept as adequate to support the Commissioner’s

conclusion.” Wheeler v. Apfel, 224 F.3d 891, 894 (8th Cir. 2000) (citation omitted). The

substantial evidence standard, however, “presupposes a zone of choice within which the

decisionmakers can go either way, without interference by the courts.” Clarke v. Bowen. 843 F.2d

271, 272 (8th Cir. 1988) (citation omitted). “An administration decision is not subject to reversal

merely because substantial evidence would have supported an opposite decision.” Id at 272-73

(citation omitted). Hence, “if it is possible to draw two inconsistent positions from the evidence

and one of those positions represents the agency’s findings, [the Court] must affirm the decision.”

Roe v. Chater. 92 F.3d 672, 675 (8th Cir. 1996) (citation omitted).

Typically, an individual claiming disability benefits has the burden of proving he or she is

unable to engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment that has lasted or can be expected to last for a continuous period of

not less than twelve months. 42 U.S.C. § 423(d)(1)(A). If the claimant succeeds, the burden of

production shifts to the Commissioner to establish the claimant can perform some other type of

substantial gainful activity in the national economy. See Young v. Apfel. 221 F.3d 1065, 1069 n.

5 (8th Cir. 2000); 20 C.F.R. § 404.1560(c)(2) (2014).

Case 6:23-cv-03327-BCW

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ANALYSIS

Plaintiff solely argues this Court should reverse and remand the ALJ’s decision because

the ALJ3 failed to consider all medical records indicating she was disabled. Specifically, Plaintiff

argues the ALJ did not consider the effects of her exposure to black mold when developing his

findings.

There is no evidence in the record that supports Plaintiff suffered from a debilitating

condition due to mold exposure other than through her own correspondence and testimony.4 In a

Social Security case, the “ALJ bears a responsibility to develop the record fairly and fully,

independent of the claimant’s burden to press h[er] case.” Snead v. Barnhart, 360 F.3d 834, 838

(8th Cir. 2004). When a claimant alleges symptoms of disabling severity, the Social Security

Administration requires ALJs to use a two-step process for evaluating an individual’s symptoms.

SSR 16-3p, 2016 SSR LEXIS 4, *5 (Mar. 16, 2016). First, the ALJ must determine whether the

individual has a medically determinable impairment that could reasonably be expected to produce

the individual’s alleged symptoms. Id. Second, the ALJ must evaluate the intensity and persistence

of an individual’s symptoms such as pain and determine the extent to which an individual’s

symptoms limit his or her ability to perform work-related activities. Id. at *9.

Here, the ALJ complied with SSR 16-3p when considering Plaintiff’s alleged mold

impairment. As to step one, the ALJ determined that Plaintiffs alleged impairments could

reasonably be expected to cause the alleged symptoms. (Doc. #6-3 at 19). As to step two, The ALJ

held that the statements concerning the intensity, persistence and limiting effects of these

3 Plaintiff asserts arguments against two ALJs. One of the ALJs is involved in a separate case in a different court. This

Court shall only consider the findings from ALJ Walter Heliums as his ruling is the only ruling relevant to the abovecaptioned matter.

4 Plaintiff failed to submit or inform the ALJ of any written evidence she wanted the ALJ to consider within the

required timeframe. 20 C.F.R. 404.935 (a) and (b). Therefore, the ALJ did not admit any additional evidence to the

record.

Case 6:23-cv-03327-BCW

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symptoms are not consistent with the medical evidence and other evidence in the record. (Doc. #63 at 19-20). The ALJ held the following in consideration of Plaintiff s exposure to mold:

Regarding the claimant’s mold exposure impairment, the most recent allergy clinic

treatment record shows she was doing much better after moving from her moldy

home, she was not needing any allergy medications, and she denied any fever,

coughing, shortness of breath, diarrhea, anosmia, loss of taste, headache, and sore

throat symptoms (Ex. B16F/1). Also, May 2021 [,] chest imaging studies were

negative for any acute findings (Ex. B1 IF/16-17). Consistent with this evidence, a

consultative examiner reported normal examination signs (Exs. 9F/2-4, 1 OF/1-3).

Based on this evidence, I find it did not limit her ability to perform basic work

activities for any 12-month consecutive period during the period at issue and was

non-severe.

(Doc. #6-3 at 15). The ALJ referred to evidence in the record that supports his decision as to why

Plaintiffs exposure to mold did not disable her or limit her ability to perform basic work activities.

Therefore, contrary to Plaintiffs argument, a review of the record demonstrates that the record

was sufficiently developed as to Plaintiffs exposure to mold.

Additionally, Plaintiff argues that the ALJ’s decision should be reversed because there is

evidence in the record that supports that her exposure to mold has disabled her. However, even if

there was merit to Plaintiffs argument, which there is not, it is still not a sufficient reason to

remand. Clarke. 843 F.2d at 272-73. (“An administration decision is not subject to reversal merely

because substantial evidence would have supported an opposite decision.”). Even if it is possible

to come to two different decisions from the record, if one of those decisions represents the ALJ’s

findings, the Court must affirm the decision. Roe. 92 F.3d at 675. Here, there is substantial

evidence in the record that supports the ALJ’s decision. Accordingly, it is hereby

ORDERED, pursuant to Section 405(g), the Commissioner of Social Security’s

determination is AFFIRMED.

IT IS SO ORDERED.

DATE: April 30. 2024

Case 6:23-cv-03327-BCW

/s/ Brian C. Wimes

JUDGE BRIAN C. WIMES

UNITED STATES DISTRICT COURT

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 24-2113

Christine Louise Kensinger

Appellant

v.

Michelle King, Acting Commissioner of the Social Security Administration and Judge Walter

Heliums, Administrative Law Judge

Appellees

Appeal from U.S. District Court for the Western District of Missouri - Springfield

(6:23-cv-03327-BCW)

ORDER

The petition for rehearing by the panel is denied.

April 14, 2025

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Susan E. Bindler

Appellate Case: 24-2113

Page: 1

Date Filed: 04/14/2025 Entry ID: 5505994