Kunik v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER - The Commissioner's determination that Kunik was not disabled is reversed and this case is remanded to the Commissioner for further proceedings. Judgment shall enter in favor of the plaintiff and against the defendant. See order text for details. Signed by Magistrate Judge Leonard T Strand on 01/27/2014. (src)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
ANDREA JO KUNIK,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Plaintiff Andrea Jo Kunik seeks judicial review of a final decision of the
Commissioner of Social Security (the Commissioner) denying her application for Social
Security Disability benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §
401 et seq. (Act). Kunik contends that the administrative record (AR) does not contain
substantial evidence to support the Commissioner’s decision that she was not disabled
during the relevant period of time. For the reasons that follow, the Commissioner’s
decision is reversed and remanded for further proceedings.
Kunik was born in 1966 and completed college with a nurse aide certificate. AR
She previously worked as a cashier, production helper and nurse assistant.
AR 329. Kunik protectively filed for DIB on September 3, 2010, alleging disability
beginning on January 1, 2009, due to post-traumatic stress disorder (PTSD), attention
deficit hyperactivity disorder (ADHD), attention deficit disorder (ADD), depression
and bipolar disorder.
AR 11, 196.
Her claims were denied initially and on
reconsideration. AR 71-72. Kunik requested a hearing before an Administrative Law
Judge (ALJ). AR 92. On July 26, 2012, ALJ Thomas Donahue held a hearing via
video conference during which Kunik, Kunik’s boyfriend, and a vocational expert (VE)
testified. AR 29-70.
On August 10, 2012, the ALJ issued a decision finding Kunik was not disabled
since January 1, 2009.
Kunik sought review of this decision by the
Appeals Council, which denied review on April 29, 2013.
decision thus became the final decision of the Commissioner. 20 C.F.R. § 404.981.
On May 20, 2013, Kunik filed a complaint in this court seeking review of the
ALJ’s decision. On June 25, 2013, with the parties’ consent, United States District
Judge Mark W. Bennett transferred the case to me for final disposition and entry of
judgment. The parties have briefed the issues and the matter is now fully submitted.
Disability Determinations and the Burden of Proof
A disability is defined as the inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be
expected to result in death or 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), 1382c(a)(3)(A); 20
C.F.R. §§ 404.1505, 416.905. A claimant has a disability when the claimant is “not
only unable to do his previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful work which exists . . .
in significant numbers either in the region where such individual lives or in several
regions of the country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the
Social Security Act, the Commissioner follows a five-step sequential evaluation process
outlined in the regulations. 20 C.F.R. §§ 404.1520, 416.920; see Kirby v. Astrue, 500
F.3d 705, 707 (8th Cir. 2007). First, the Commissioner will consider a claimant’s
If the claimant is engaged in substantial gainful activity, then the
claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the
Commissioner looks to see “whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work
activities.” Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). “An impairment is
not severe if it amounts only to a slight abnormality that would not significantly limit
the claimant’s physical or mental ability to do basic work activities.” Kirby, 500 F.3d
at 707; see 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes
necessary to do most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities
and aptitudes include (1) physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing,
and speaking; (3) understanding, carrying out, and remembering simple instructions;
(4) use of judgment; (5) responding appropriately to supervision, co-workers, and usual
work situations; and (6) dealing with changes in a routine work setting.
§§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141,
107 S. Ct. 2287, 2291 (1987). “The sequential evaluation process may be terminated
at step two only when the claimant’s impairment or combination of impairments would
have no more than a minimal impact on her ability to work.” Page v. Astrue, 484 F.3d
1040, 1043 (8th Cir. 2007) (internal quotation marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will
consider the medical severity of the impairment. If the impairment meets or equals one
of the presumptively disabling impairments listed in the regulations, then the claimant is
considered disabled, regardless of age, education, and work experience. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Kelley v.
Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one
of the presumptively disabling impairments, then the Commissioner will assess the
claimant’s residual functional capacity (RFC) to determine the claimant’s “ability to
meet the physical, mental, sensory, and other requirements” of the claimant’s past
relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4), 416.920(a)(4)(iv),
416.945(a)(4). “RFC is a medical question defined wholly in terms of the claimant’s
physical ability to perform exertional tasks or, in other words, what the claimant can
still do despite his or her physical or mental limitations.” Lewis v. Barnhart, 353 F.3d
642, 646 (8th Cir. 2003) (internal quotation marks omitted); see 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1). The claimant is responsible for providing evidence
the Commissioner will use to make a finding as to the claimant’s RFC, but the
Commissioner is responsible for developing the claimant’s “complete medical history,
including arranging for a consultative examination(s) if necessary, and making every
reasonable effort to help [the claimant] get medical reports from [the claimant’s] own
medical sources.” 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The Commissioner
also will consider certain non-medical evidence and other evidence listed in the
regulations. See id. If a claimant retains the RFC to perform past relevant work, then
the claimant is not disabled. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the
claimant to perform past relevant work, then the burden shifts to the Commissioner to
prove that there is other work that the claimant can do, given the claimant’s RFC as
determined at Step Four, and his or her age, education, and work experience. See
Bladow v. Apfel, 205 F.3d 356, 358-59 n.5 (8th Cir. 2000). The Commissioner must
prove not only that the claimant’s RFC will allow the claimant to make an adjustment to
other work, but also that the other work exists in significant numbers in the national
economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
If the claimant can make an adjustment to
other work that exists in significant numbers in the national economy, then the
Commissioner will find the claimant is not disabled. If the claimant cannot make an
adjustment to other work, then the Commissioner will find that the claimant is disabled.
20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
At Step Five, even though the
burden of production shifts to the Commissioner, the burden of persuasion to prove
disability remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir.
Summary of ALJ’s Decision
The ALJ made the following findings:
The claimant meets the insured status requirements of
the Social Security Act through June 30, 2014.
The claimant engaged in substantial gainful activity
during the following periods: January 2009 through
the end of June 2009 (20 CFR 404.1520(b) and
404.1571 et seq.).
However, there has been a continuous 12-month
period(s) during which the claimant did not engage in
substantial gainful activity. The remaining findings
address the period(s) the claimant did not engage in
substantial gainful activity.
The claimant has the following severe impairments:
obesity, bipolar disorder; posttraumatic stress
disorder; and social phobia (20 CFR 404.1520(c)).
The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) lifting and carrying
25 pounds frequently and 50 pounds occasionally,
sitting or standing two hours at a time for six hours of
an eight-hour day, and walking two miles.
Additionally, she is limited to a low stress level, such
as a level “4” on a scale where “10” is the most
stressful and “1” is the least stressful. Moreover, she
may have no contact with the general public and
limited contact with fellow workers. Finally, the
claimant is limited to simple, routine to less than
The claimant is capable of performing past relevant
work as a production helper, Dictionary of
Occupational Titles number 529.686-070. This work
does not require the performance of work-related
activities precluded by the claimant’s residual
functional capacity (20 CFR 404.1565).
The claimant has not been under a disability, as
defined in the Social Security Act, from January 1,
2009, through the date of this decision (20 CFR
AR 13-22. At Step One, the ALJ found Kunik had engaged in substantial gainful
activity (SGA) from January through June 2009, but because there had been a
continuous 12-month period where she had not engaged in SGA, he could proceed to
the second step. AR 13. At Step Two, the ALJ found Kunik’s severe impairments
consisted of obesity, bipolar disorder, posttraumatic stress disorder and social phobia.
AR 14. Although Kunik had also alleged back and hip pain and residual effects of a
right wrist fracture, the ALJ found these were not severe because they were not
medically determinable impairments. Id.
At Step Three, the ALJ found that Kunik’s mental impairments considered singly
and in combination did not meet or equal the criteria of Listings 12.04 and 12.06. He
first analyzed the “paragraph B” criteria, which require two “marked” limitations or
one “marked” limitation and “repeated” episodes of decompensation.1
“marked” limitation is one that is more than moderate but less than extreme. The ALJ
Episodes of decompensation are “exacerbations or temporary increases in symptoms or signs
accompanied by a loss of adaptive functioning, as manifested by difficulties in performing
activities of daily living, maintaining social relationships, or maintaining concentration,
persistence, or pace.” 20 CFR Part 404, Subpart P, Appendix 1. Repeated episodes of
decompensation, each of extended duration, means three episodes within 1 year, or an average
of once every 4 months, each lasting for at least 2 weeks.
found that Kunik had mild restriction in activities of daily living and moderate
difficulties in social functioning and concentration, persistence or pace. AR 14. Kunik
had not experienced any episodes of decompensation of extended duration. Therefore,
the “paragraph B” criteria were not satisfied. He also considered the “paragraph C”
criteria, but found that the evidence failed to establish those criteria, as well. Id.
At Step Four, the ALJ conducted his RFC assessment and found Kunik was
capable of performing medium work, sitting or standing two hours at a time for six
hours of an eight-hour day and walking two miles. She was also limited to a low stress
level, such as a level “4” on a scale where “10” is the most stressful and “1” is the
least stressful. She could have no contact with the general public, limited contact with
fellow workers and was limited to simple, routine to less than complex tasks. AR 15.
As part of his RFC assessment, the ALJ evaluated the credibility of Kunik’s allegations
and found them to be not entirely credible.
He reasoned there was no objective
evidence supporting most of her alleged physical symptoms, no therapy records and
sparse psychiatric treatment. AR 17. He also noted success with medications for her
mental symptoms and found that her reported activities and abilities were “indicative of
a functionality well beyond that which the claimant contends.” Id.
In support of his reasoning, the ALJ first described Kunik’s alleged thigh and
back pain. Id. He found they were not medically determinable impairments because
there is no objective evidence of diagnosable conditions. Id. While a consultative
examiner stated that Kunik had limited range of motion in her spine and right lower
extremity, the ALJ noted these findings were based on Kunik’s subjective reports of
pain. He also discredited these symptoms based on Kunik’s failure to pursue treatment
throughout the relevant period of alleged disability.
The ALJ next considered Kunik’s obesity and noted that a treating physician had
stated that her physical symptoms of discomfort were “most likely related to her weight
gain and pressure.” Id. The ALJ found Kunik’s obesity was a medically determinable
impairment that caused significant limitations. AR 18. He stated that all restrictions
provided in the RFC accounted for these limitations. The ALJ noted this finding was
primarily based on Kunik’s activities of daily living. Id. While Kunik had described
difficulties walking up and down stairs, the ALJ noted she had demonstrated an ability
to stand on her feet for extended periods of time and bend and squat without difficulty.
He also noted that many of her activities such as getting dressed, bathing, feeding
herself, going to the bathroom, feeding pets, playing with grandchildren, cooking,
cleaning and doing laundry demonstrated a greater level of functionality than she had
alleged. Id. The record even contained evidence that Kunik had gone roller skating
with her family during the alleged period of disability. Id. The ALJ concluded these
activities suggested Kunik could perform medium work and her obesity did not require
Kunik alleged she was unable to lift a gallon of milk due to the effects of a wrist
fracture she suffered in June 2010. However, Kunik had surgery on her wrist and the
post-operative treatment records suggested she had fully recovered within 12 months of
her injury. AR 18. She was released to full activities in September 2010 and the ALJ
did not find any evidence of treatment for the alleged residual side effects following her
surgery. The ALJ found Kunik’s wrist pain was non-severe, noting that the lack of
treatment as well as her release to full activities just three months after the injury
strongly suggested that any remaining symptoms would only have a minimal effect on
her ability to work. AR 19.
As for limitations related to her mental impairments, the ALJ first noted that
outside of a few references before her alleged onset date, the first reference to
treatment for her mental impairments occurred in October 2010, well after her alleged
onset date. In October 2010, Kunik reported to the emergency room with depression
and suicidal thoughts. She stated that she was not taking any medication and had not
taken any since 2002. She was admitted for three days and testing showed indications
of symptom exaggeration. The psychologist noted she “may be magnifying problems
in a help seeking or perhaps some other secondary gain.” Id. The ALJ also noted that
Kunik failed to follow up with a mental health provider after her discharge until 2011
when she again reported to the emergency room for suicidal ideation. Id. Kunik was
still not taking any medications at this time, but once she was placed on medications at
the hospital, her mood stabilized and she was discharged. Id. Since then, the ALJ
found no further evidence of mental health treatment. Based on her lack of compliance
with medication or therapy recommendations and her failure to seek any further
treatment, the ALJ found her mental impairments did not cause greater limitations than
those provided in the RFC. Id.
In further support of the mental limitations in the RFC, the ALJ referenced
Kunik’s daily activities and the findings of a psychological consultative examiner. He
specifically noted Kunik’s statement that she would go shopping three to four times per
week for up to two hours at a time, would play with her grandchildren and went roller
skating with her family. He found she had moderate difficulties in social functioning
and limited her to no contact with the public and limited contact with co-workers. The
consultative examiner found she had no more than moderate difficulties in
concentration, persistence and pace. AR 20. The ALJ adopted similar limitations into
The ALJ noted there was no opinion evidence from a treating source, but he did
consider the third party function report and testimony of Kunik’s boyfriend and the
third party function report from her ex-husband. Id. He discredited their opinions for
the same reasons he discredited Kunik’s allegations, specifically citing the lack of
objective supporting evidence, Kunik’s sparse treatment and their close relationship
The ALJ concluded Kunik was capable of performing her past relevant work as a
production helper. Id.
In the alternative, he found that she would be able to perform
the work of a kitchen helper, janitor or laundry folder based on her age, education,
work experience and residual functional capacity. AR 21. For these reasons, the ALJ
found Kunik had not been under a disability from January 1, 2009, through the date of
the decision. AR 22.
The Substantial Evidence Standard
The Commissioner’s decision must be affirmed “if it is supported by substantial
evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.
2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall be conclusive . . . .”).
“Substantial evidence is less than a preponderance, but enough that a reasonable mind
might accept as adequate to support a conclusion.” Lewis, 353 F.3d at 645. The
Eighth Circuit explains the standard as “something less than the weight of the evidence
and [that] allows for the possibility of drawing two inconsistent conclusions, thus it
embodies a zone of choice within which the [Commissioner] may decide to grant or
deny benefits without being subject to reversal on appeal.” Culbertson v. Shalala, 30
F.3d 934, 939 (8th Cir. 1994).
In determining whether the Commissioner’s decision meets this standard, the
court considers “all of the evidence that was before the ALJ, but it [does] not re-weigh
the evidence.” Wester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court
considers both evidence which supports the Commissioner’s decision and evidence that
detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court
must “search the record for evidence contradicting the [Commissioner’s] decision and
give that evidence appropriate weight when determining whether the overall evidence in
support is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing
Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must
apply a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health
& Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.”
Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186,
188 (8th Cir. 1994)).
Instead, if, after reviewing the evidence, the court finds it
“possible to draw two inconsistent positions from the evidence and one of those
positions represents the Commissioner’s findings, [the court] must affirm the
[Commissioner’s] denial of benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v.
Astrue, 547 F.3d 933, 935 (8th Cir. 2008)). This is true even in cases where the court
“might have weighed the evidence differently.” Culbertson, 30 F.3d at 939 (quoting
Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992)). The court may not reverse
the Commissioner’s decision “merely because substantial evidence would have
supported an opposite decision.” Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.
1984); see Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005) (“[A]n administrative
decision is not subject to reversal simply because some evidence may support the
Kunik makes two arguments in contending the ALJ’s decision is not supported
by substantial evidence:
The ALJ Failed to Fully Develop the Record
The ALJ Failed to Reference or Discuss Any Medical
Records After May 17, 2011
Development of the Record
Kunik contends the ALJ did not fully develop the record relating to PTSD. She
points out that she requested a second consultative examination to address this issue, but
the request was denied despite indications in the record that she suffers from this
Kunik contends that the limitations related to PTSD are not fully
accounted for in the RFC.
The Commissioner disagrees, pointing out that the first psychological
consultative examiner Kunik saw in April 2011 diagnosed PTSD and that the ALJ
found this to be a severe impairment. The ALJ also referenced Kunik’s PTSD in
discussing her treatment records. The Commissioner argues the ALJ was not required
to develop the record further because the record was sufficient for him to determine
Kunik’s limitations from all of her mental impairments.
An ALJ has a duty to develop the record fully and fairly, independent of the
claimant’s burden to press her case. Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir.
2010). “[A]n ALJ is permitted to issue a decision without obtaining additional medical
evidence so long as other evidence in the record provides a sufficient basis for the
ALJ’s decision.” Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995) (quoting
Naber v. Shalala, 22 F.3d 186, 189 (8th Cir. 1994)). “[R]eversal due to failure to
develop the record is only warranted where such failure is unfair or prejudicial.”
Haley v. Massanari, 258 F.3d 742, 750 (8th Cir. 2001).
The ALJ considered PTSD to be a severe impairment. He noted that Kunik
claimed to experience flashbacks and have nightmares from some type of trauma
associated with living with her sister when her parents had become ill and died. AR
16. To account for her PTSD and other mental health symptoms, the ALJ included
limitations of low stress work, minimum contact with the public, limited contact with
co-workers and simple, routine to less than complex tasks in the RFC. AR 15.
I find that the ALJ adequately developed the record relating to Kunik’s PTSD.
Kunik was sent to a consultative examiner in April 2011, who diagnosed her with
PTSD. He recommended certain work-related limitations based on the symptoms from
all of her mental impairments.
The ALJ adopted many of the
recommendations from this report which included limitations in remembering and
concentration and pace and interacting appropriately with supervisors, co-workers and
the public. AR 439. The fact that the record was insufficient to meet Kunik’s burden
of proving she could not perform her past work does not mean the record was
insufficiently developed. See Kisling v. Chater, 105 F.3d 1255, 1257 n.3 (8th Cir.
1997) (“The record itself . . . is sufficiently developed; the documents and testimony
simply fail to support Kisling’s claims.”). The ALJ did not err by failing to obtain
additional medical evidence relating to PTSD because the record was sufficiently
developed for the ALJ to determine whether Kunik’s impairments (singly and in
combination) were disabling.
Evaluation of Medical Evidence and Kunik’s Credibility
Kunik argues the ALJ ignored certain medical records in discrediting her
subjective allegations and that those records support her claim of disability.
contends the medical records from Spencer Municipal Hospital demonstrate that she
sought mental health treatment after her hospitalization in May 2011, contrary to the
ALJ’s finding. She also disputes the ALJ’s characterization of her treatment history as
a fairly recent development. Finally, Kunik contends that a document submitted to the
Appeals Council from her current treating psychiatrist supports her claim of disability.
The Commissioner argues that neither the records from Spencer Municipal
Hospital or Kossuth Regional Health Center support Kunik’s allegations of disabling
mental limitations, meaning that the ALJ did not err in failing to discuss them.
Moreover, the Commissioner contends that the ALJ’s decision is supported by
substantial evidence even when considering the additional evidence that was submitted
to the Appeals Council.
The records Kunik references in Exhibit 18F from Spencer Municipal Hospital
are dated June and July 2010, refer to treatment regarding her fractured wrist and are
not relevant to her mental health treatment. AR 486-93. However, records in Exhibits
20F and 21F from Kossuth Regional Health Center which date from June 2011 through
July 2012, are relevant to her mental health treatment. AR 511-20, 523-24. These
exhibits were in the record at the time the ALJ made his decision.
Because the ALJ did not discuss these records, I will summarize them here. The
records show that on June 14, 2011, Kunik saw Burt Bottjen, M.D., and Kim
Etherington, PAC, to establish medical care. AR 524. Kunik was still struggling with
depression since she had been discharged from the hospital in May and her medications
were adjusted. Id. On July 20, Kunik was doing well on her medication and the
provider noted she was happier, motivated and pleasant. AR 523. Her boyfriend had
also noticed her improvement. Id. On September 15, Kunik was feeling depressed and
her medication was increased. AR 520. A week later, she stated that the increase in
medication had made her feel more anxious, aggressive and agitated. AR 519. Her
medications were adjusted again. Id. On October 27, Kunik still experienced anxiety,
agitation and irritability. AR 518. She thought her depression was okay, but not as
well-controlled. Id. She had been going to counseling on a regular basis which seemed
to help. In December 2011, Kunik was doing well on her medications and the doctor
noted her bipolar disorder was stable. AR 515. In January 2012, Kunik felt that her
depression was not well-controlled again and her medication was increased. AR 514.
In April, Kunik reported she had not felt well for several weeks.
overwhelmed, stressed, agitated and had trouble sleeping. AR 513. Her medication
was adjusted. Id. In June, Kunik was still not doing well, partly due to stress from the
sudden death of her brother and other family issues.
The doctor adjusted her
medications again. AR 512. In July 2012, Kunik stated she felt as though her moods
were still not controlled. AR 511. The doctor noted she was not taking one of her
medications twice per day as instructed. Kunik was asked to make this change and
follow up in a month. Id.
Kunik argues this evidence refutes the ALJ’s credibility finding, which was
based in part on her purported failure to seek additional treatment following her
hospitalization in May 2011. Moreover, Kunik argues these records support her claim
An ALJ’s failure to discuss medical evidence does not necessarily
constitute error. See Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010) (“An
ALJ’s failure to cite specific evidence does not indicate that such evidence was not
considered.”). A deficiency in opinion-writing is also not a sufficient reason to set
aside an ALJ’s finding, however, “inaccuracies, incomplete analysis, and unresolved
conflicts of evidence can serve as a basis to remand.” Draper v. Barnhart, 425 F.3d
1127, 1130 (8th Cir. 2005) (quoting Reeder v. Apfel, 214 F.3d 984, 988 (8th Cir.
It is obvious that the ALJ failed to consider the mental health records in Exhibits
20F and 21F, as he inaccurately stated that Kunik “has had no further mental health
treatment” since her hospitalization in May 2011. AR 19. He went on to use this as a
reason to discredit her stating: “Considering her lack of compliance with medication or
therapy recommendations—or any treatment for that matter—the undersigned finds little
evidence that the claimant’s psychological symptoms require greater accommodation
than provided by the above-listed residual functional capacity assessment.” Id. This
reason for discrediting Kunik is not supported by substantial evidence and demonstrates
the ALJ failed to meet his duty of considering all relevant evidence in the record. See
Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (“It is the ALJ’s responsibility to
determine [claimant’s] RFC based on all the relevant evidence, including medical
records, observations or treating physicians and others, and [claimant’s] own
description of her limitations.”) (internal quotations omitted). If the evidence at issue
was not relevant, remand would not be required.
Here, however, the overlooked
evidence is plainly relevant to Kunik’s claim and the ALJ actually used the perceived
lack of such evidence as a reason to discredit Kunik’s credibility.
circumstances, I must remand this case for the ALJ to consider the impact of this
relevant, overlooked medical evidence.
The ALJ also failed to seriously consider numerous records that pre-date Kunik’s
alleged onset date. See Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004)
(“[E]ven if a doctor’s medical observations regarding a claimant’s allegations of
disability date from earlier, previously adjudicated periods, the doctor’s observations
are nevertheless relevant to the claimant’s medical history and should be considered by
The ALJ stated, “With the exception of a few references before the
alleged onset date, the claimant’s only treatment for mental health symptoms occurred
well after the alleged onset date.” AR 19. To the extent the ALJ discredited Kunik
based on a belief that she had a short and recent history of mental health treatment, this
reason is not supported by substantial evidence in the record as a whole. Mental health
treatment records pre-dating Kunik’s alleged onset date demonstrate she has a long
history of diagnosed mental illness. AR 330-31, 510, 527-28, 534-53. Indeed, this
long history has been acknowledged by Kunik’s more-recent treating providers. AR
520, 524. Kunik regularly received mental health treatment from 2000 to 2002, and it
appears she stopped treatment and her medication due to financial reasons in 2002. AR
I find that remand is necessary for the ALJ to fully consider this historical
medical evidence as well.
Kunik’s remaining argument addresses evidence that was not a part of the record
when the ALJ made his decision, but was later submitted to the Appeals Council. The
regulations describe the review process for new and material evidence as follows:
[T]he Appeals Council shall consider the additional evidence
only where it relates to the period on or before the date of
the [ALJ] hearing decision. The Appeals Council shall
evaluate the entire record including the new and material
evidence submitted if it relates to the period on or before the
date of the [ALJ] hearing decision. It will then review the
case if it finds that the [ALJ]’s action, findings, or
conclusion is contrary to the weight of the evidence
currently of record.
20 C.F.R. § 404.970(b).
If the Appeals Council considers the new evidence, but
declines to review the case, the court reviews the ALJ’s decision to determine whether
there is substantial evidence in the administrative record, which now includes the new
evidence, to support the ALJ’s decision. Browning v. Sullivan, 958 F.2d 817, 823 n.4
(8th Cir. 1992).
Here, the new evidence consists of a one-page form signed by Mark Lassise,
M.D., Kunik’s current treating psychiatrist, on September 24, 2012. AR 556. The
form was submitted by Kunik in her application to discharge her federal student loan.
Id. The form does not note any limitations except “[i]mpaired due to chronic mental
illness.” Id. It also notes Kunik had a GAF score of 24 on May 12, 2011. Id. I find
that this evidence, by itself, would not even arguably warrant remand.
because I must remand this case for the ALJ to consider overlooked medical evidence,
the ALJ shall also consider the new evidence in evaluating Kunik’s RFC and credibility
and issuing a new decision.
For the reasons set forth herein, the Commissioner’s determination that Kunik
was not disabled is reversed and this case is remanded to the Commissioner for further
proceedings. Judgment shall enter in favor of the plaintiff and against the defendant.
On remand, the ALJ shall re-evaluate Kunik’s RFC and credibility after
considering (a) all of the evidence in Exhibits 20F and 21F, (b) the medical records
pre-dating Kunik’s alleged onset date and (c) the form completed by Dr. Lassise, in
conjunction with the rest of the evidence in the record.
Depending on this new
evaluation, the ALJ may need to obtain additional VE testimony before issuing a new
decision on Kunik’s claim.
IT IS SO ORDERED.
DATED this 27th day of January, 2014.
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE
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