King v. Social Security Administration Commissioner

Filing 8

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on September 19, 2012. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION

KAREN KING
v.

PLAINTIFF
Civil No. 3:11-cv-03056-JRM

MICHAEL J. ASTRUE, Commissioner of
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
I.

Factual and Procedural Background
Plaintiff, Karen King, brings this action seeking judicial review, pursuant to 42 U.S.C. §

405(g), of a decision of the Commissioner of the Social Security Administration (“Commissioner”)
denying her applications for disability insurance benefits (“DIB”) and supplemental security income
(“SSI”) under Titles II and XVI of the Social Security Act (“the Act”).
Plaintiff protectively filed her applications on August 7, 2008, alleging a disability onset date
of January 1, 2008, due to major depressive disorder with psychotic features, post-traumatic stress
disorder (“PTSD”), adjustment disorder, anxiety disorder, hypertension, surgical adhesions, shoulder
injury, pulmonary nodules, chronic fatigue, chronic pain, and bronchial asthma. Tr. 10, 12, 70, 73.
On the alleged onset date, Plaintiff was forty-six years old with a college education. Tr. 17, 194-195,
451. She has past relevant work as a nurse, door keeper, stocker, and grocery checker. Tr. 16-17,
54-56.
Plaintiff’s applications were denied at the initial and reconsideration levels. Tr. 70-76, 79-83.
At Plaintiff’s request, an administrative hearing was held on December 16, 2009. Tr. 24-65.
Plaintiff was present at this hearing and represented by counsel. The ALJ rendered an unfavorable
-1-

decision on May 14, 2010, finding Plaintiff was not disabled within the meaning of the Act. Tr. 718. Subsequently, the Appeals Council denied Plaintiff’s Request for Review on May 25, 2011, thus
making the ALJ’s decision the final decision of the Commissioner. Tr. 1-6. Plaintiff now seeks
judicial review of that decision.
II.

Applicable Law
The Court’s role on review is to determine whether the Commissioner’s findings are

supported by substantial evidence in the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583
(8th Cir. 2003). “Substantial evidence is less than a preponderance, but enough so that a reasonable
mind might accept it as adequate to support a conclusion.” Estes v. Barnhart, 275 F.3d 722, 724 (8th
Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). In determining whether
evidence is substantial, the Court considers both evidence that detracts from the Commissioner’s
decision as well as evidence that supports it. Craig v. Apfel, 212 F.3d 433, 435-36 (8th Cir. 2000)
(citing Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)). If, after conducting this review, “it
is possible to draw two inconsistent positions from the evidence and one of those positions
represents the [Secretary’s] findings,” then the decision must be affirmed. Cox v. Astrue, 495 F.3d
614, 617 (8th Cir. 2007) (quoting Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995)).
To be eligible for disability insurance benefits, a claimant has the burden of establishing that
she is unable to engage in any substantial gainful activity due to a medically determinable physical
or mental impairment that has lasted, or can be expected to last, for no less than twelve months.
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); 42 U.S.C. § 423(d)(1)(A). The
Commissioner applies a five-step sequential evaluation process to all disability claims: (1) whether
the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe
-2-

impairment that significantly limits her physical or mental ability to perform basic work activities;
(3) whether the claimant has an impairment that meets or equals a disabling impairment listed in the
regulations; (4) whether the claimant has the RFC to perform her past relevant work; and (5) if the
claimant cannot perform her past work, the burden of production then shifts to the Commissioner
to prove that there are other jobs in the national economy that the claimant can perform given her
age, education, and work experience. Pearsall, 274 F.3d at 1217; 20 C.F.R. § 404.1520(a),
416.920(a). If a claimant fails to meet the criteria at any step in the evaluation, the process ends and
the claimant is deemed not disabled. Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir.
2004).
III.

ALJ’s Determination
At step one, the ALJ determined Plaintiff had not engaged in substantial gainful activity at

any point since January 1, 2008, the alleged onset date. Tr. 12. At step two, the ALJ found Plaintiff
suffers from alcohol abuse, depression, ilioinguinal hernia, and a respiratory disorder, which were
considered severe impairments under the Act. Tr. 12-13. At step three, she determined Plaintiff did
not have an impairment or combination of impairments that met or medically equaled a listed
impairment. Tr. 13-14.
At step four, the ALJ found Plaintiff had the RFC to perform light work as defined in 20
C.F.R. §§ 404.1567(b) and 416.967(b), except that she could have no more than moderate exposure
to airborne irritants, dust, fumes, and odors, and no more than moderate exposure to extremes of
temperature or humidity. Tr. 14-16. Additionally, the ALJ limited Plaintiff to occasional stooping
and crouching and occasional overhead reaching with the left upper extremity. Tr. 14-16. Mentally,
the ALJ determined Plaintiff could perform unskilled work where interaction with others is
-3-

incidental to the work performed. Tr. 14-16.
With these limitations, the ALJ found Plaintiff could not perform her past relevant work. Tr.
16-17. However, after receiving vocational expert testimony, the ALJ found jobs existing in
significant numbers in the national economy that Plaintiff could perform.1 Accordingly, the ALJ
determined Plaintiff was not under a disability from January 1, 2008, the alleged onset date, through
May 14, 2010, the date of the administrative decision. Tr. 18.
IV.

Discussion
On appeal, Plaintiff contends the ALJ erred by: (A) failing to assign proper weight to the

opinion of her treating physicians; (B) failing to properly evaluate her noncompliance with
medication; and (C) failing to properly account for her mental impairments. See Pl.’s Br. 10-19. For
the following reasons, the court finds that substantial evidence does not support the ALJ’s decision.
At the fourth step of the evaluation, a disability claimant has the burden of establishing her
RFC. Eichelberger, 390 F.3d at 591; Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004). A
claimant’s RFC is the most she can do despite her limitations. 20 C.F.R. § 404.1545(a)(1). The ALJ
determines a claimant’s RFC based on “all relevant evidence, including medical records,
observations of treating physicians and others, and the claimant’s own descriptions of his or her
limitations.” Masterson, 363 F.3d at 737. The Eighth Circuit has stated that “a claimant’s residual
functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Thus,
although the ALJ bears the primary responsibility for determining a claimant’s RFC, there must be
1

The ALJ determined Plaintiff could perform the requirements of representative light, unskilled
occupations such as small products assembler, of which there are 950 jobs regionally and 108,500 jobs nationally,
and machine tender, of which there are 1,500 jobs regionally and 118,800 jobs nationally, and sedentary, unskilled
occupations such as machine tender, of which there are 250 jobs regionally and 18,000 jobs nationally, sedentary
assembler, of which there are 400 jobs regionally and 31,000 jobs nationally, and escort vehicle driver, of which
there are 150 jobs regionally and 22,500 jobs nationally. Tr. 17-18, 56-65.

-4-

“some medical evidence” to support the ALJ’s determination. Eichelberger, 390 F.3d at 591; Dykes
v. Apfel, 223 F.3d 865, 867 (8th Cir 2000).
In this instance, the ALJ did not properly evaluate Plaintiff’s mental impairments. The
medical evidence of record reflects significant mental health treatment during the relevant time
period. Plaintiff had two inpatient hospitalizations at Vista Health: July 11, 2008-July 15, 2008, and
December 30, 2008-January 16, 2009. Tr. 268-282, 383-434, 698-938. While hospitalized in July
2008, Plaintiff was diagnosed with alcohol abuse and major depression, severe, without psychosis.
Tr. 269, 282. She reported drinking one pint of alcohol daily. Tr. 713. She also reported suicidal
ideation, depression, anxiety, periods of “blacking out,” and sexual abuse as a child. Tr. 726, 732.
At intake, Plaintiff’s Global Assessment of Functioning (“GAF”) score was estimated at 20. Tr. 282.
Plaintiff was treated with Celexa and Xanax, individual and group therapy, and psychiatric
evaluation. Tr. 269, 734. At the time of discharge, Michael Hollomon, M.D., estimated Plaintiff’s
GAF score at 40. Tr. 269.
On December 30, 2008, Plaintiff presented with suicidal ideation and plan, depression,
blackouts, and a history of alcohol dependence. Tr. 386. She reported that her daughter was killed
in a car accident in October 2008. Tr. 390, 784. Plaintiff also reported hearing her daughter’s voice
for the last several weeks. Tr. 390, 395. When questioned about alcohol use, Plaintiff stated she
drank a pint of 100 proof alcohol every other day, with her last use being one week earlier. Tr. 393.
On examination, Plaintiff was highly anxious, tense, and tired. Tr. 831. Her mood was significantly
depressed and highly anxious with a dysphoric, apprehensive, and sad affect. Tr. 831. Plaintiff was
able to maintain concentration and focus with effort. Tr. 831-832. Her memory for recent and
remote events was adequate. Tr. 831. Recall memory was impaired. Tr. 831. Thought processes

-5-

were scattered but not quite disorganized. Tr. 832. Associations were minimally loosened and
Plaintiff was circumstantial in her speech. Tr. 832. Thought content was notable for suicidal
ideation. Tr. 832. At the time of admission, Plaintiff’s medications included Combivent inhaler,
Elavil, Prilosec, Lasix, Hydrocodone, potassium chloride, ibuprofen, Celexa, Metoprolol, Xanax,
and Advair. Tr. 405.
Lewis E. Britton, M.D., diagnosed Plaintiff with major depressive disorder, recurrent, severe,
with mood congruent psychotic features, PTSD, chronic with acute exacerbation, bereavement,
personality disorder not otherwise specified, and alcohol dependence, in sustained partial remission.
Tr. 387, 423-424, 778, 832. Plaintiff was treated with Amitriptyline and Cymbalta. Tr. 788.
While at Vista Health, Plaintiff underwent a neuropsychological evaluation with Ronald E.
McInroe, Psy.D. Tr. 425-429. Dr. McInroe could not complete the neuropsychological evaluation
because Plaintiff had multiple “meltdowns” and had to be sedated. Tr. 429. On the Wechsler Adult
Intelligence Scale III, Plaintiff received scores placing her within the average range of intellectual
functioning. Tr. 427. On the Minnesota Multiphasic Personality Inventory-2, Plaintiff generated an
invalid profile suggesting conscious magnification of symptomatology, which Dr. McInroe
interpreted as a plea or cry for help. Tr. 429. Dr. McInroe diagnosed Plaintiff with PTSD, chronic
type, depressive disorder, not otherwise specified, sexual abuse of a child, victim, personality
disorder not otherwise specified (borderline), and alcohol dependence in partial remission. Tr. 429.
At the time of discharge, Plaintiff’s GAF score was estimated at 40. Tr. 387, 423-424, 790. Dr.
Britton noted that Plaintiff steadily improved throughout hospitalization, but borderline features
became more apparent and PTSD anxiety was still significant at the time of discharge. Tr. 789.
Plaintiff was referred to Ozark Guidance Center for outpatient care. Tr. 789.

-6-

Following her initial hospitalization at Vista Health, Plaintiff began outpatient treatment at
Ozark Guidance, Inc. Tr. 483-518, 631-672. In August 2008, Plaintiff was diagnosed with alcohol
abuse, depressive disorder not otherwise specified, and rule out borderline personality disorder. Tr.
506. She was assessed with a GAF score of 40. Tr. 507. In March 2009, Plaintiff reported severe
grief over her daughter’s death. Tr. 496. She also reported that she stopped drinking three months
earlier. Tr. 499. Plaintiff was diagnosed with bereavement, alcohol abuse, and bipolar I disorder,
last episode mixed, severe, with psychotic features. Tr. 496. Her GAF score was estimated at 45.
Tr. 496.
In April 2009, Brian Mooney, M.D., diagnosed Plaintiff with bipolar disorder, Type I,
depressed, alcohol dependence, PTSD, bereavement, and cluster B traits. Tr. 486. Dr. Mooney
noted that Plaintiff had “a very complex case” with personality disorder issues mixed in with clear
bipolar and anxiety issues that would benefit heavily from psychotherapy. Tr. 486. He increased
Plaintiff’s dosage of Geodon and Celexa and tapered off Amitriptyline. Tr. 486. He also prescribed
Seroquel. Tr. 486. On April 30, 2009, tremors of Plaintiff’s hands and tongue were noted. Tr. 664.
As a result, Plaintiff was placed on Cogentin. Tr. 664. Mary Jeppsen, Plaintiff’s counselor,
estimated Plaintiff’s GAF score at 45. Tr. 665. She noted that Plaintiff had improved since her
medications had been stabilized and changed. Tr. 666.
On June 23, 2009, Mary Ann Adams, APN, noted that Plaintiff had stopped taking Antabuse
due to cost, but Plaintiff reported no alcohol use. Tr. 671. Ms. Adams noted that Plaintiff was
mostly stable on her present medications and her moods were even. Tr. 671. She diagnosed Plaintiff
with bipolar disorder, Type I, depressed, PTSD (from sexual abuse and daughter’s death),
bereavement, history of alcohol abuse, rule out dissociative disorder, and cluster B traits. Tr. 671-

-7-

672. At the time, Plaintiff’s medications included Cogentin, Geodon, Celexa, Xanax, and Seroquel.
Tr. 672. On September 15, 2009, Ms. Jeppsen estimated Plaintiff’s GAF score at 40, noting that
Plaintiff was still grieving strongly over her daughter’s death. Tr. 951-952.
On February 24, 2009, Plaintiff saw Terry L. Efird, Ph.D., for a consultative mental
evaluation. Tr. 450-454. Plaintiff listed her medications as Amitriptyline, Xanax, Geodon, and
Ativan. Tr. 451. She reported fatigue, poor appetite, feelings of guilt over her daughter’s death,
memory difficulties, and suicidal thoughts. Tr. 450-451. Plaintiff denied current alcohol usage,
stating she last drank nine weeks prior to her appointment. Tr. 451. On examination, Plaintiff’s
mood was dysphoric and her affect was appropriate to content. Tr. 451. Thought processes were
logical, relevant, and goal-directed. Tr. 452. Plaintiff denied experiencing visual and auditory
hallucinations. Tr. 452. Dr. Efird diagnosed Plaintiff with major depressive disorder, moderate to
severe, alcohol abuse, in partial remission, and possible dependent personality traits. Tr. 452-453.
He estimated Plaintiff’s GAF score at 50-60. Tr. 453. Dr. Efird noted that Plaintiff had no difficulty
with activities of daily living, communicating and interacting in a socially adequate, intelligible, and
effective manner, performing basic cognitive tasks required for basic work-like activities, tracking
and responding, persisting in completion of tasks, and completing most tasks within an adequate
time frame. Tr. 453. However, he noted a mild to moderate degree of impairment in attention and
concentration. Tr. 453.
On March 10, 2009, Winston Brown, Ph.D., completed a Mental RFC Assessment, in which
he determined Plaintiff had moderate mental limitations, but would be capable of semiskilled work.
Tr. 455-458. In a Psychiatric Review Technique Form (“PRTF”), Dr. Brown determined Plaintiff’s
impairments did not meet or equal a listed impairment. Tr. 459-472. He found mild restriction of

-8-

activities of daily living, mild difficulties in maintaining social functioning, moderate difficulties in
maintaining concentration, persistence, or pace, and one or two episodes of decompensation, each
of extended duration. Tr. 469.
On December 22, 2009, Ms. Jeppsen completed a Mental RFC Questionnaire, in which she
determined that Plaintiff was unable to work due to intense anxiety, PTSD flashbacks and fear, poor
concentration, and physical fatigue. Tr. 958-962. She noted that Plaintiff’s symptoms could be
moderately controlled with medication, but psychotherapy was essential for daily functioning. Tr.
958. She also found that Plaintiff could not cope with normal job stress. Tr. 958. Ms. Jeppsen
found Plaintiff had no useful ability to function in three unskilled work-related categories, was
unable to meet competitive standards in four unskilled work-related categories, and was seriously
limited, but not precluded in five unskilled work-related categories. Tr. 959. She determined
Plaintiff would likely miss more than four work days per month if employed. Tr. 962.
In determining Plaintiff’s RFC, the ALJ relied heavily on the opinions of Dr. Efird and the
agency consultants. Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999) (the assessment of a doctor
who evaluates a claimant once or not at all does not usually constitute substantial evidence). She
dismissed Ms. Jeppsen’s opinion, noting that Plaintiff reported that her anxiety and depression were
controlled with medication. Tr. 16. The Commissioner also notes that Ms. Jeppsen is not
considered an “acceptable medical source.” See Def.’s Br. 5.
While it is true that a licensed counselor is not considered an “acceptable medical source,”
an ALJ may consider evidence from “other sources” to show severity of a claimant’s impairment(s)
and how it affects his or her ability to work. 20 C.F.R. § 404.1513(d). Moreover, Ms. Jeppsen was
part of a “team” approach to treatment, which included Drs. Mooney and Demski, and Ms. Adams,

-9-

an APN. Shontos v. Barnhart, 328 F.3d 418, 426 (8th Cir. 2003) (claimant’s team of health care
providers, including her counselor and a nurse practitioner, could be afforded “treating” source status
because they were part of a treating team that included an acceptable medical source). Here, Ms.
Jeppsen did not simply offer an opinion that Plaintiff was disabled. She provided detailed
information concerning Plaintiff’s mental limitations, noting that Plaintiff could not cope with
normal job stress (even with medication and therapy), maintain a regular work schedule, and engage
in normal public interaction. Tr. 958-962. She also found that Plaintiff suffered from intense
anxiety, PTSD flashbacks, poor concentration, and fatigue. Tr. 958-962. As Plaintiff’s counselor,
Ms. Jeppsen saw Plaintiff on a regular basis and was in the best position to gauge her overall
progress.
The evidence of record, including treatment records, Plaintiff’s two inpatient hospitalizations,
and Plaintiff’s decline in functioning following her daughter’s tragic death, is inconsistent with an
ability to perform light, unskilled work with incidental interaction with others. Moreover, Plaintiff
suffers from serious mental illness that has not been consistently controlled by medication. See
Vincent v. Apfel, 264 F.3d 767, 769 (8th Cir. 2001) (ALJ’s finding that claimant’s schizophrenia was
in remission and controlled by medication was inconsistent with extensive treatment records, which
showed that claimant had complained of medication side effects, regularly hallucinated, tended to
isolate himself, and would remain in treatment indefinitely). Although Plaintiff periodically reported
improvement in mood and overall functioning, Ms. Jeppsen noted that Plaintiff was still grieving
strongly over her daughter’s death. Tr. 666, 671, 951-952. Additionally, Dr. Mooney noted that
Plaintiff had “a very complex case” with personality disorder issues mixed in with clear bipolar and
anxiety issues. Tr. 486. For these reasons, substantial evidence does not support the ALJ’s opinion.

-10-

As such, this case is remanded for further development of the record concerning Plaintiff’s mental
impairments.
On remand, the ALJ should attempt to obtain an RFC assessment from Dr. Mooney or one
of Plaintiff’s other treating mental health sources. Once a detailed RFC assessment is obtained, the
ALJ should reconsider whether Plaintiff’s mental impairments allowed her to engage in substantial
gainful employment during the relevant time period.
V.

Conclusion
Accordingly, the undersigned concludes that the ALJ’s decision is not supported by

substantial evidence and should be reversed and remanded to the Commissioner for further
consideration pursuant to sentence four of 42 U.S.C. § 405(g). This matter should be remanded to
the Commissioner for reconsideration of the issue of Plaintiff’s RFC, based on all relevant evidence,
including medical records, opinions of treating medical personnel, and Plaintiff’s description of her
own limitations. Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001).
IT IS SO ORDERED this 19th day of September 2012.

/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

-11-