Cheryl J. Schwandt, Plaintiff - Appellant,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant-Appellee.
Submitted: November 15, 2018
Appeal
from United States District Court for the District of
Minnesota - Minneapolis
Before
COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
COLLOTON, CIRCUIT JUDGE
Cheryl
Schwandt appeals a judgment of the district
court[1] upholding the denial of her application
for disability insurance benefits. We affirm.
I.
In
February 2012, Cheryl Schwandt applied for disability
insurance benefits under 42 U.S.C. § 423, claiming a
disability onset date of January 1, 2012. Schwandt alleged
that avascular necrosis of the knees, a full knee
replacement, and chronic pain syndrome limited her ability to
work as a dental hygienist. The Social Security
Administration granted Schwandt's application in July
2012.
As it
happened, however, the Administration mistakenly recorded an
onset date of January 1, 2001. Under the correct onset date
of January 1, 2012, benefit payments should have started in
June 2012, because a claimant generally must be disabled for
a full five months before benefits can be paid. See
42 U.S.C. § 423(a)(1), (c)(2). The erroneous onset date
resulted in benefit payments dating back to February 2011,
twelve months before the application date. See id.
§ 423(b). The agency's error thus resulted in
Schwandt receiving undeserved payments for the months from
February 2011 to May 2012. When the agency discovered the
mistake, it sought to recover the overpayments, and declined
to grant Schwandt a waiver that would allow her to keep the
money.
Around
this time, an agency employee learned that Schwandt's
earnings had been "subsidized" since 2010, meaning
that Schwandt was paid more than the reasonable value of the
actual services she performed. See 20 C.F.R. §
404.1574(a)(2). As a result, the employee thought that
Schwandt had not engaged in substantial gainful activity
after 2009, and recommended using an amended disability onset
date of December 31, 2009, to calculate Schwandt's
benefits. The earlier onset date would have allowed Schwandt
to keep the overpayments that she received from the
government. Acting on this recommendation, an agency
disability examiner reopened Schwandt's claim in
September 2013 to investigate the matter. After conducting a
full review, however, the agency concluded that
Schwandt's impairments had not been disabling before
2012, and that the correct onset date was still January 1,
2012.
In an
effort to establish an earlier onset date of December 31,
2009, Schwandt requested a hearing before an administrative
law judge. The ALJ informed Schwandt before the hearing that
she would evaluate Schwandt's disability status from
"December 31, 2009 through the present." Schwandt
responded with a letter objecting to any reconsideration of
her disability status from 2012 onward, but she did not
attempt to withdraw her request for a hearing.
The ALJ
began the hearing by overruling Schwandt's objection to
the scope of the hearing. Applying the familiar sequential
process, the ALJ then concluded that Schwandt had not been
disabled since December 31, 2009. See Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §
404.1520(a)(4). The ALJ determined at step one that Schwandt
had been engaged in substantial gainful activity from
December 31, 2009, to December 31, 2011, so she was not
disabled during that period. Schwandt had not been
engaged in substantial gainful activity since January 1,
2012, but the ALJ concluded that Schwandt could perform past
relevant work and therefore was not disabled from 2012
onward. As a result, Schwandt was not entitled to any
disability insurance benefits. See 42 U.S.C. §
423(a)(1)(E), (d).
After
the Appeals Council denied review of the ALJ's decision,
Schwandt sought review in district court under 42 U.S.C.
§ 405(g). The district court affirmed the
Commissioner's disability determination, but remanded to
the Administration for further consideration of the
overpayment waiver issue. Schwandt appeals the portion of the
district court's order affirming the disability
determination, and we have jurisdiction despite the pendency
of the waiver issue before the agency. See Forney v.
Apfel, 524 U.S. 266, 269, 271-72 (1998).
We
review the district court's judgment de novo and
will affirm if substantial evidence supports the
Commissioner's decision. Vance v. Berryhill, 860
F.3d 1114, 1117 (8th Cir. 2017). Substantial evidence is less
than a preponderance, but enough that a reasonable mind would
find it adequate to support the Commissioner's decision.
Id. "We consider evidence that supports the
Commissioner's conclusion, as well as evidence that
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