Talley v. Social Security Administration
MEMORANDUM OPINION AND ORDER reversing and remanding the Commissioner's decision for action consistent with this opinion. This is a sentence four remand within the meaning of 42 U.S.C. § 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991). Signed by Magistrate Judge Beth Deere on 4/11/12. (hph)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
BRENDA L. TALLEY
CASE NO.: 4:11CV00247 BD
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration
MEMORANDUM OPINION AND ORDER
Plaintiff Brenda L. Talley appeals the final decision of the Commissioner of the
Social Security Administration (the “Commissioner”) denying her claim for Disability
Insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”) and
Supplemental Security Income (“SSI”) under Title XVI of the Act. For the following
reasons, the decision of the Commissioner must be REVERSED and REMANDED.
Ms. Talley filed for DIB and SSI on May 15, 2008, claiming disability since June
23, 2007.1 Ms. Talley alleged that she was disabled as a result of diabetes, arthritis,
anxiety, morbid obesity, malabsorption syndrome, agoraphobia, hypertension,
supraventricular tachycardia, obsessive compulsive disorder, neuropathy, retinopathy,
endometriosis, degenerative joint disease, chronic insomnia, and deep vein thrombosis.
(Tr. 65-71, 80) After denials initially and upon reconsideration, Ms. Talley requested a
At the hearing, the ALJ established that Ms. Talley drew unemployment benefits
through February of 2008, but he did not modify her onset date. (Tr. 39, 125)
hearing before an Administrative Law Judge (“ALJ”). (Tr. 84-85) The ALJ held a
hearing on July 6, 2009, at which Ms. Talley appeared with her attorney and testified.
(Tr. 16-42) The ALJ also heard testimony from a vocational expert. (Tr. 41-42)
The ALJ issued a decision on November 4, 2009, finding that Ms. Talley was not
disabled for purposes of the Act. (Tr. 50-60) On January 20, 2011, the Appeals Council
denied her request for review, making the ALJ’s decision the Commissioner’s final
decision. (Tr. 1-4)
At the time of the hearing before the ALJ, Ms. Talley was 47 years old and was
living alone in a house next door to her mother and brother. (Tr. 19, 40-41) She had
previous work as a registered nurse. (Tr. 138)
Decision of the Administrative Law Judge:
The ALJ followed the required five-step sequence to determine: (1) whether the
claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a
severe impairment; (3) if so, whether the impairment (or combination of impairments)
met or equaled a listed impairment; (4) if not, whether the impairment (or combination of
impairments) prevented the claimant from performing past relevant work2; and (5) if so,
whether the impairment (or combination of impairments) prevented the claimant from
If the claimant has sufficient residual functional capacity to perform past relevant
work, the inquiry ends and benefits are denied. 20 C.F.R. §§ 404.1520(a)(4)(iv),
performing any other jobs available in significant numbers in the national economy. 20
C.F.R. §§ 404.1520(a)-(g); 416.920(a)-(g).
The ALJ found that Ms. Talley had not engaged in substantial gainful activity
since her alleged disability onset date but noted that she had received unemployment
benefits into the first quarter of 2008, indicating she was available and willing to return to
work during that period. (Tr. 52) The ALJ also found that Ms. Talley had the following
severe impairments: diabetes mellitus, back disorder (degenerative arthritis), obesity, and
mood disorder. (Tr. 52) According to the ALJ, Ms. Talley did not have an impairment or
combination of impairments, however, that met or equaled an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1526, 416.926). (Tr. 53)
The ALJ determined that Ms. Talley retained the residual functional capacity
(“RFC”) to perform sedentary work except as follows: she could occasionally lift/carry
ten pounds and frequently lift/carry less, stand/walk for two hours; occasionally climb,
balance, crawl, kneel, stoop, and crouch. She had moderate restriction in her ability to
maintain the activities of daily living, social functioning, and concentration, persistence,
and pace. She was moderately limited in her ability to understand, remember, and carry
out detailed instructions; make judgments on simple work related decisions; interact
appropriately with the public; and respond appropriately to usual work situation and
routine work changes. She could perform work where interpersonal contact was
incidental to the work performed, complexity of tasks is learned and performed by rote,
with few variables, little judgment was required, and supervision was simple, direct, and
concrete. (Tr. 55)
The ALJ concluded that Ms. Talley could not perform her past relevant work as a
registered nurse. (Tr. 58) Relying on the vocational expert’s responses to interrogatories,
the ALJ concluded Ms. Talley could perform work as a production worker, credit
authorizer, or interviewer and that she was not disabled within the meaning of the Act.
Standard of Review
In reviewing the Commissioner’s decision, this Court must determine whether
there is substantial evidence in the record as a whole to support the decision. Boettcher v.
Astrue, 652 F.3d 860, 863 (8th Cir. 2011); 42 U.S.C. § 405(g). Substantial evidence is
something less than a preponderance, but it must be, “sufficient for reasonable minds to
find it adequate to support the decision.” Boettcher, 652 F.3d at 863 (citing Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)).
In reviewing the record as a whole, the Court must consider both evidence that
detracts from the Commissioner’s decision and evidence that supports the decision; but,
the decision cannot be reversed, “simply because some evidence may support the opposite
conclusion.” Id. (citing Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006)).
Severe Impairments and Residual Functional Capacity
Ms. Talley complains that the ALJ erred by failing to find that her diabetic
retinopathy, supraventricular tachycardia (SVT), peripheral neuropathy, and hip pain were
severe impairments. (#9 at p. 14) She also complains that the ALJ’s residual functional
capacity assessment is not supported by substantial evidence in the record.
Ms. Talley had the burden of showing that her impairments were severe; however,
this burden is not a great one. Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001).
Rather, step two of the sequential evaluation process provides a de minimus screening
device to dispose of groundless claims. Bowen v. Yuckert, 482 U.S. 137, 153-54, 107
S.Ct. 2287 (1986).
An impairment is severe if the effect of the impairment on the claimant’s ability to
perform basic work is more than slight or minimal. Warren v. Shalala, 29 F.3d 1287,
1291 (8th Cir. 1994) (quoting Cook v. Bowen, 797 F.2d 687, 690 (8th Cir. 1986)). Basic
work activities are the abilities and aptitudes necessary to do most jobs, such as hearing,
standing, walking, sitting, lifting, handling, remembering simple instructions, using
judgment, and dealing with changes in a routine work setting. 20 C.F.R. §404.1521.
The Commissioner must resolve any doubt as to whether the required showing of severity
has been made in favor of the claimant. SSR 85-28 at *4 (1985).
Once it is determined that an individual has a severe impairment for purposes of
step two, the combined effect of all impairments are considered in determining an
individual’s residual functional capacity, regardless of whether the impairments are
labeled severe or non-severe. 20 C.F.R. §§ 404.1545(e) and 416.945(e).
In assessing residual functional capacity, the ALJ must give appropriate
consideration to all of the claimant's impairments, and base the assessment on competent
medical evidence. Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011) (citations omitted).
An ALJ should consider the quality of the claimant’s daily activities and the ability to
sustain activities, interests, and relate to others over a period of time. The frequency,
appropriateness, and independence of the activities must also be considered. Boettcher,
652 F.3d at 866 (internal quotation marks and citation omitted).
Ms. Talley claims that the ALJ erred by failing to find that her diabetic retinopathy
was a severe impairment. The ALJ noted that Ms. Talley had been referred for an
evaluation of diabetic retinopathy and stated that her diabetes could be expected to cause
vision changes. (Tr. 53) But he did not find her diabetic retinopathy to be a severe
impairment; nor did he discuss Ms. Talley’s vision when assessing her residual functional
The Commissioner does not dispute that Ms. Talley was diagnosed with diabetic
retinopathy, but argues that the diagnosis, by itself, does not indicate a severe impairment.
This statement of the law is true, as far as it goes. However, the ALJ still had a duty to
consider Ms. Talley’s diabetic retinopathy when considering her residual functional
capacity, and it appears that he failed to do so.
In November, 2009, Ms. Talley was referred for an eye examination after
complaints that her eyes were hurting. (Tr. 208) The records from Ms. Talley’s visit to
an opthamologist in November, 2008, indicate that she had a history of retinal bleeding
and glaucoma. (Tr. 482) In a narrative report dated November 13, 2009, Gary Russell,
M.D., a physician at River Valley Medical Center, wrote that, according to her
ophthalmologist, Ms. Talley had diabetic retinopathy with marked decrease in her vision
and at least one retinal hemorrhage that was treated with laser therapy.3 (Tr. 535) On
November 19, 2009, Ms. Talley was seen at River Valley Christian Clinic (“River
Valley”) complaining of vision problems. She was referred to an eye doctor. (Tr. 543)
At the hearing, Ms. Talley testified that she had glasses, but that they were for
distance vision and not for reading. (Tr. 34-35) She stated that she was no longer able to
read the newspaper because her vision was impaired. (Tr. 28-29) However, she was able
to read a large-print Bible. (Tr. 29) She also testified that one reason she used a cane was
Dr. Russell’s letter was submitted to the Appeals Council after the ALJ hd
rendered his decision. (Tr. 1-4) The Appeals Council considered the letter when it
declined to review the ALJ’s decision. (Tr. 2, 4) Consequently, it may be considered by
this Court. See United States v. Bergmann, 207 F.3d 1065, 1068 (8th Cir. 2000) (citing
Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994)) (court’s role is to determine whether
ALJ’s decision is supported by substantial evidence, including evidence submitted after
the determination was made).
to help her deal with her visual impairment because she had difficulty detecting depth and
In spite of considerable evidence in the record indicating that Ms. Talley’s diabetic
retinopathy has more than a minimal effect on her ability to work, it does not appear that
the ALJ considered it when assessing her residual functional capacity. The ALJ found
that Ms. Talley was capable of working as a production worker which, according to the
Dictionary of Occupational Titles, would require her to frequently use near acuity and
depth perception, and to occasionally use color vision. Employment and Training
Admin., U.S. Dep't of Labor, Dictionary of Occupational Titles (4th ed. rev. 1991).
Further, it does not appear that any consulting or examining source offered an
opinion about the extent of visual limitation caused by Ms. Talley’s retinopathy. Remand
is necessary for the ALJ to more fully and fairly develop the record regarding the extent
of Ms. Talley’s visual impairment, if any.
On November 7, 2007, Kenneth Turner, M.D., diagnosed Ms. Talley with diabetic
peripheral neuropathy. On September 18, 2008, Ms. Talley complained of numbness and
tingling during her visit to River Valley.
At the hearing, Ms. Talley testified that her feet and legs were cold and numb
bilaterally. (Tr. 146) She stated that she had problems with strength and grip, could not
open jars, and dropped things. (Tr. 25, 27-28) She had difficulty holding a glass of milk
because of problems with her grip. (Tr. 29) She also stated that her peripheral
neuropathy caused her knees to buckle, leading her to use a cane. (Tr. 30) She had
difficulty getting up and down the three steps leading to her house. (Tr. 30)
In his opinion, the ALJ acknowledged Ms. Talley’s diabetic neuropathy and
considered whether there was documentation of neuropathy in two extremities significant
enough to meet a Listing. (Tr. 53) He also noted that her diabetes could cause “tingling
and numbness” in the hands or feet. (Tr. 53)
When assessing Ms. Talley’s residual functional capacity, however, the ALJ
focused his assessment only on the neuropathy in her feet. He noted that she had reported
numbness, tingling, and pain in her feet. (Tr. 56) The ALJ stressed, however, that the
orthopedic specialist had found that she had normal gait, that her neurovascular status was
intact, and that she had positive straight leg tests. (Tr. 56) The ALJ concluded that Ms.
Talley could sit for six hours; stand/walk for two hours; and could occasionally climb,
balance, crawl, kneel, stoop, or crouch. (Tr. 57)
The ALJ did not address the evidence in the record indicating that Ms. Talley’s
peripheral neuropathy also affected her hands. He did not limit her residual functional
capacity in any way related to her hands and concluded she could perform work as a
credit authorizer and interviewer – jobs that require frequent handling.
The ALJ’s failure to fully account for Ms. Talley’s peripheral neuropathy in
assessing residual functional capacity is error. Again, it does not appear that
any examining medical professional had ordered a nerve conduction study of Ms. Talley
or had offered an opinion as to the extent of the limitation caused by her peripheral
neuropathy.4 On remand, the Commissioner should consider the effect, if any, that Ms.
Talley’s peripheral neuropathy in her legs, hands, and feet has on her residual functional
Ms. Talley alleges that it was error for the ALJ not to conclude that her hip pain
was a severe impairment. The ALJ acknowledged Ms. Talley’s complaints of hip pain at
various points in his opinion. He noted that Ms. Talley complained of hip pain to Dr.
Turner, who recorded in treatment notes that Ms. Talley had a right hip that “pops out at
times.” (Tr. 56)
The ALJ also acknowledged that Ms. Talley was examined by Owen Kelly, M.D.,
at Arkansas Orthopaedic Institute in November, 2007. (Tr. 56, 248) Dr. Kelly took xrays of Ms. Talley that revealed some degenerative disc disease. (Tr. 248) On
examination, he noted that she had normal gait, but tenderness of the greater trochanter
bursa and around the lumbosacral area. (Tr. 248) He diagnosed low back pain,
degenerative disc disease, and right leg radiculopathy. (Tr. 248) He ordered an MRI of
In his November, 2009 letter, Dr. Russell noted that Ms. Talley’s diabetes
mellitus was causing neuropathy in her feet, legs, and hands. (Tr. 535) He did not,
however, offer an opinion as to how the neuropathy limited her ability to work.
Ms. Talley’s lumbar spine, but she reported to Dr. Turner that she was unable to have the
test because of her financial situation. (Tr. 526)
On October 2, 2008, Ms. Talley complained of hip pain during a visit to Stanley
Teeter, M.D., at River Valley. (Tr. 471) She was diagnosed with degenerative arthritis in
her hip. Dr. Teeter prescribed Etodolac but, as the ALJ noted, that medication was
discontinued due to gastritis. (Tr. 57, 470)
At her hearing, Ms. Talley testified that Dr. Teeter had told her she had “bone
against bone” on her right hip, and that her hip socket was degenerated. (Tr. 29) She
stated that he had advised her to keep as much weight as possible off of it, so she used a
cane. (Tr. 29-30) Additionally, Ms. Talley testified that she was not able to bend down
to pick up objects that dropped on the floor. (Tr. 25-26) She relied on her brother or
mother to come to her house and do that for her. (Tr. 25)
The ALJ discounted the effects of Ms. Talley’s hip pain, noting that no surgical
treatment was recommended.5 (Tr. 57) However, Dr. Kelly, the orthopedic specialist,
had ordered an MRI in order to have a complete work-up on Ms. Talley, but she was not
able to have the test because of her limited financial resources.6 (Tr. 375) She never
Ms. Talley testified at the hearing that she was 5'2" tall and weighed 266 pounds.
Ms. Talley’s obesity obviously could contribute to making her an unlikely candidate for
It was well known to Ms. Talley’s physicians that she had limited financial
resources. (Tr. 368, 375, 443, 535)
returned to Dr. Kelly, but instead continued to seek treatment for hip pain from her
general practitioners at the free clinic. (Tr. 374, 420, 422, 535, 538)
Further, the ALJ noted that none of Ms. Talley’s doctors had restricted her
activities. However, Ms. Talley’s testimony contradicts this assertion. She testified that
Dr. Teeter had advised her to keep as much weight off of her hip as possible. The ALJ’s
opinion does not offer any explanation for discrediting this testimony.
Further, Dr. Russell, one of Ms. Talley’s treating physicians, stated that Ms. Talley
was unable to sit or stay in one position for an extended period of time. (Tr. 535) While
the ALJ did not have Dr. Russell’s assessment at the time he wrote his opinion, the Court
may consider that opinion, which was available to, and considered by, the Appeals
Council. See United States v. Bergmann, 207 F.3d 1065, 1068 (8th Cir. 2000) (citing
Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994)) (the court’s role is to determine
whether the ALJ’s decision is supported by substantial evidence including the evidence
submitted after the determination was made).
The ALJ’s conclusion that Ms. Talley could perform sedentary work and could
occasionally climb, balance, crawl, kneel, stoop, and couch is not supported by substantial
evidence in the record.
Ms. Talley also claims that the ALJ erred in assessing her mental impairments.
The ALJ concluded Ms. Talley had moderate restriction in activities of daily living; in her
social functioning; and in concentration, persistence, and pace. (Tr. 54) He noted that
she was hospitalized in 2001 following a suicide attempt. (Tr. 54) The ALJ found that
Ms. Talley’s mood disorder was a severe impairment, but he concluded that she
maintained the residual functional capacity for unskilled work. (Tr. 52, 55)
Ms. Talley points out that the ALJ declined to discuss the mental consultative
examination performed by Don Ott, Psy.D., on September 17, 2008. (Tr. 391-97) Dr. Ott
observed that, during the examination, Ms. Talley’s affect was rigid and flat. He stated
that she made very little eye contact, and that her voice was tired and resigned. (Tr. 393)
She seemed distracted and talked excessively during the evaluation. (Tr. 395) Dr. Ott
concluded that Ms. Talley’s social interaction was “fairly limited.” (Tr. 395) Her
concentration was impaired, and her capacity to cope with the mental demands of work
was deficient. (Tr. 396) Dr. Ott diagnosed Ms. Talley with major depressive disorder,
recurrent, moderate and assigned a GAF score of 50-60. (Tr. 395)
The Commissioner points out that the ALJ addressed Dr. Ott’s opinion by stating,
“the opinions of the claimant’s examining and treating physicians are given substantial
weight consistent with 20 C.F.R. 404.1527.” Further, he argues that Dr. Ott’s opinion is
not contradictory to the ALJ’s assessment of Ms. Talley’s residual functional capacity,
pointing out that Dr. Ott “never opined as to Plaintiff’s actual limitations in concentration
or any work-related domain.” (#14 at p. 7)
The ALJ’s handling of Dr. Ott’s opinion was inadequate. As explained in Social
Security Ruling 96-6p, administrative law judges and the Appeals Council are not bound
by findings made by State agency or other program physicians and psychologists, but they
cannot ignore these opinions and must explain the weight given to the opinions in their
decisions. SSR 96-6p (1996). Dr. Ott’s opinion that Ms. Talley’s concentration was
impaired and that her ability to cope with the mental demands of work was deficient
should have at least been addressed by the ALJ in his opinion.
The ALJ’s assessment of Ms. Talley’s treatment records was also deficient. In his
opinion, the ALJ based his residual functional capacity assessment on the July, 2008
assessment of Richard H. Sundermann, Jr., M.D. (Tr. 443-44) Dr. Sundermann
recounted Ms. Talley’s history of depression and anxiety. He noted that she had been
unable to afford Effexor and had switched to a generic, but had been unable to afford
even an adequate dose of the generic drug. (Tr. 443) He diagnosed Ms. Talley with
moderate, recurrent major depressive disorder and prescribed Effexor, which he could
supply to her through a patient assistance program. (Tr. 444)
The ALJ states the Effexor resulted in fewer suicidal thoughts and an improved
mood. He summarized the remaining treatment notes by stating that Ms. Talley continued
to attend therapy sessions and medication management, “with a few more changes in the
medications and improvement of her mood.” Based on this analysis of Ms. Talley’s
treatment records, the ALJ concluded that she could perform unskilled work. (Tr. 57)
The ALJ’s assessment that Ms. Talley’s depression and anxiety were controlled
with medication and therapy is not supported by substantial evidence in the record. In
April, 2008, Ms. Talley complained of increased anxiety and depression to Dr. Turner.
He referred her to Counseling Associates noting that, “[s]he is not actually suicidal but
needs more intensive care for depression than I can provide alone.” (Tr. 526) In May of
2008, Ms. Talley called Dr. Turner’s office seeking samples of Effexor because she could
not purchase her medication. (Tr. 527) He was unable to provide samples of Effexor and
changed her medication to Cymbalta. (Tr. 527)
On June 4, 2008, Ms. Talley presented to Counseling Associates complaining of
anxiety and depression since she was a child. She reported daily symptoms of depression
and anxiety, stating that her social anxiety was so severe that she remained isolated and
felt like a failure. She was initially diagnosed with major depressive disorder, recurrent,
moderate, without psychotic features, and anxiety disorder with agoraphobia. She was
assigned a GAF score of 50. (Tr. 331-336)
On July 9, 2008, Dr. Sundermann evaluated Ms. Talley. He noted that she had a
difficult time digesting her food and medicine because she had undergone gastric bypass
surgery in 2001. He stated that Prozac, which Ms. Talley had previously taken with good
result, had stopped working. She reported a failed suicide attempt years earlier, which
had resulted in her being psychiatrically hospitalized for seven days. (Tr. 443-44) Dr.
Sundermann prescribed Effexor XR and therapy. (Tr. 444)
On August 26, 2008, Ms. Talley began therapy with Erin Willcutt, LAC. (Tr. 447)
On September 8, 2008, Ms. Talley was evaluated by Sam Hernandez, APN. Progress
notes from the visit indicate that Ms. Talley reported that her depression seemed worse
and that she wanted to stay in bed most of the time. (Tr. 441) She was observed to have
a flat affect and admitted to having fleeting suicidal thoughts with a plan at times. Nurse
Hernandez increased her Effexor, and Ms. Talley agreed to allow her brother to help her
manage her medications. (Tr. 441)
During a therapy session on September 12, 2008, Ms. Talley seemed to be doing
better. (Tr. 446) But on October 1, 2008, her therapist noted that her response to
treatment has been “marginal,” and her anxiety level was very high. (Tr. 445) On
October 6, 2008, Ms. Talley returned to Nurse Hernandez, who noted that she seemed to
be doing quite a bit better. (Tr. 440)
Ms. Talley returned to see Ms. Willcutt on October 14, 2008. Ms. Willcutt noted
that Ms. Talley seemed to be doing a little better, but still has difficulty getting motivated
to do things to improve her situation. (Tr. 503) During visits on November 12, 2008, and
December 9, 2008, Ms. Talley reported doing better. (Tr. 501-502) On December 11,
2008, Nurse Hernandez diagnosed major depressive disorder, recurrent, moderate and
continued her on Effexor and individual therapy. (Tr. 489)
On January 15, 2009, Ms. Talley reported feeling a little more depressed, but she
returned on February 4, 3009, to report feeling better. (Tr. 499-500)
Ms. Willcutt noted that at her session on March 6, 2009, Ms. Talley had a
depressed mood. She noted that Ms. Talley was not doing as well as she had been at her
last visit and reported feeling very depressed after her mother had yelled at her. (Tr. 498)
Ms. Talley was examined by Roy Ragsdill, M.D., on April 7, 2009. Ms. Talley
complained to Dr. Ragsdill of problems with her mother and social anxiety. He suggested
adding dependent personality traits to her diagnosis and noted that Ms. Talley had only a
“partial response to Effexor” but that he was “reluctant” to change her medications. (Tr.
488) He continued her medications and suggested an increase in therapy to weekly. (Tr.
Ms. Willcutt reported that on April 21, 2009, Ms. Talley’s response to therapy was
“minimal” and her thought patterns were “very negative.” (Tr. 497) Ms. Willcutt
suggested that they increase their sessions. (Tr. 497)
On May 5, 2009, Ms. Talley was noted to have a very depressed mood, negative
thought process, and very tearful behavior. Ms. Talley admitted to thoughts of wanting to
die and not wanting to go on, but denied any plan or intent to harm herself. Ms. Willcutt
discussed possible acute care with Ms. Talley, but she rejected the idea because she had
formerly worked at the acute unit and felt this would make her feel like more of a failure.
Ms. Willcutt noted that cognitive therapy was minimally successful and noted her
intention to meet with her case manager and discuss the case with Ms. Talley’s
psychiatrist. (Tr. 496) Ms. Willcutt recommended an increased level of care for Ms.
Talley with weekly therapy and meetings twice per month with her case manager. (Tr.
Notes from Ms. Talley’s May 20, 2009 therapy session indicate that she exhibited
depressed mood, negative thought process, and no change in behavior of functioning.
(Tr. 495) On June 16, 2009, Dr. Ragsdill examined Ms. Talley. He noted that her mood
was somewhat better, but discussed with her the possibility of adding lithium as an
augmentation to her treatment. Ms. Talley rejected the idea. (Tr. 534)
Notes from Ms. Talley’s therapy session with Ms. Willcutt on November 18, 2009,
indicate that Ms. Talley’s response to therapy was not positive. (Tr. 548) She stated,
“Brenda is very depressed and apathetic about her current living situation. She was very
negative in session and reports having no energy to do or work on current situation. She
reports feeling like ‘Brenda’ is slipping away.” (Tr. 548) Ms. Willcutt noted that
“Brenda is isolating and avoiding friends, family, and appointments when possible.” She
recommended that Ms. Talley increase the frequency of her therapy sessions and case
management appointments. (Tr. 548)
Ms. Willcutt met with Ms. Talley again on December 9, 2009. (Tr. 549) She noted
that Ms. Talley’s mood was depressed and overwhelmed; her thoughts were negative; and
her behavior was anxious. Ms. Talley reported difficulties living with her mentally ill
mother and brother. Ms. Willcutt noted that Ms. Talley’s activity level was “significantly
reduced.” (Tr. 549)
On December 9, 2009, Ms. Talley was also seen by her psychiatrist, Dr. Ragsdill.
(Tr. 547) He noted that Ms. Talley was walking with a cane, was anxious, and did not
want to go out much. He assessed that she was having an “incomplete response” to her
antidepressant regimen. He increased her Effexor to the maximum dose and added
lithium. (Tr. 547)
In a treatment and prognosis summary dated December 13, 2009, Ms. Willcutt
noted that Ms. Talley’s depression and anxiety had increased over the past several
months.7 (Tr. 550) She pointed out that Ms. Talley’s thought patterns were increasingly
negative and her anxiety was more apparent. She stated that she had agreed with her
current diagnosis of major depressive disorder, recurrent, moderate to severe and anxiety
disorder NOS and stated that, in her opinion, Ms. Talley’s prognosis was guarded, due to
the recurrent nature of her mental disorder and severe stressors. (Tr. 550)
Evidence from treating sources are generally accorded great weight because they
are most able to provide a longitudinal picture of a claimant’s impairments. 20 C.F.R.
§ 416.927. The ALJ had access to Ms. Talley’s treatment records from Counseling
Associates through June, 2009, but opted to focus on the first few months of her
Like Dr. Russell’s letter, Ms. Willcutt’s summary was submitted to the Appeals
Council after the ALJ issued his opinion. It was considered by the Appeals Council,
however, when it declined to review the ALJ’s decision. (Tr. 1-4)
treatment, when she showed some signs of improvement. The Appeals Council had
access to Ms. Talley’s records through December, 2009, but concluded that the
information did not provide a basis for changing the ALJ’s decision. The Court
The treating source records, taken as a whole, indicate that Ms. Talley’s depression
and anxiety had not improved on medication but, in fact, steadily declined after March of
2009. The ALJ erred by failing to address Dr. Ott’s opinion and by relying on a sixmonth snapshot of Ms. Talley’s treatment records when assessing her mental residual
After consideration of the record as a whole, the Court concludes that the decision
of the Commissioner is not supported by substantial evidence. The Commissioner’s
decision is reversed and remanded for action consistent with this opinion. This is a
“sentence four” remand within the meaning of 42 U.S.C. § 405(g) and Melkonyan v.
Sullivan, 501 U.S. 89 (1991).
IT IS SO ORDERED this 11th day of April, 2011.
UNITED STATES MAGISTRATE JUDGE
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