Coldren v. Commissioner of Social Security
Filing
21
MEMORANDUM Opinion and Order. The Commissioners decision is reversed and remanded solely for the calculation of benefits (See Order Text). Signed by Senior Judge Donald E OBrien on 9/15/2011. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
MICHELLE L. COLDREN,
Plaintiff,
No. 10-CV-04080-DEO
v.
Memorandum and Order
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
____________________
I.
Introduction and Background
This matter is before the Court pursuant to Michelle L.
Coldren’s (Plaintiff) request for disability benefits under
Title II of the Social Security Act (the “Act”), 42 U.S.C. §§
401 et seq., and supplemental security income benefits under
Title XVI of the Act, 42 U.S.C. §§ 1381 et seq.
The
Plaintiff
has
disability benefits.
made
two
Tr. 30, 34.
attempts
to
qualify
for
In May of 2006, she filed
claiming a primary diagnosis of Bipolar Disorder, a secondary
diagnosis of thyroid disorder, and complaints related to
asthma and arthritis; and, in October of 2006, she filed
claiming fractures of her L1 and C7 vertebrae, resulting from
a car accident, and Major Depressive Disorder.
Id.
This
Court is reviewing the ALJ’s decision to her second claim.
Id.
The SSA initially denied her second claim on January 12,
2007, and, upon reconsideration, on May 7, 2007.
Id.
On
October 7, 2008, a hearing was held before an Administrative
Law Judge (ALJ).
Id.
On November 28, 2008, the ALJ denied
Plaintiff disability benefits and supplemental security income
benefits.
Tr. 26-27.
On May 14, 2010, the SSA Appeals
Council denied Plaintiff’s request for review.
Tr. 6-8.
This Court has authority to review the Commissioner’s
final decision under 42 U.S.C. §§ 405(g) and 1383 (c)(3).
II.
Facts
Plaintiff claims a disability onset date of October 7,
2006.
Tr.
17.
The
Plaintiff
“met
the
insured
requirements of the Act through March 31, 20071.”
status
Tr. 19.
Thus, the relevant time period for this Court’s consideration
for onset of disability is October 7, 2006, through March 31,
2007.
The Plaintiff has an 11th grade education with no past
relevant work experience.
Tr. 31.
1
Her work history includes
A plaintiff is required to have 20 quarters of coverage
within the past 40-quarter period to be insured and,
therefore, eligible for disability benefits. 42 U.S.C. §
416(i)(3)(B)(i); 20 C.F.R. § 404.130(b)(2).
2
“brief periods of employment” as a housekeeper at hotels “and
work as a dishwasher at various cafes.”
Tr. 290.
Most
recently, she was a hostess at a steak house from November
2005 to March 2006.
Id.
She claims the customers frightened
her and was fired because of her “decreasing ability to
function.”
Id.
For portions of 2006, she cleaned her ex-
husband’s house and business premises for 4 to 5 hours a week.
Id.
She has a history of depression, Bipolar Disorder2, and
alcohol abuse.
sexual,
Tr. 31.
emotional,
and
As a child, she was a victim of
physical
abuse.
Tr.
281.
Her
biological father and step-father “frequently” forced her into
sexual activities, and she was severely beaten beginning at
age 5.
Tr. 281.
Her second husband continued the cycle of
abuse.
Tr. 289.
“Four or five times his abuse resulted in
the need for medical treatment.”
Id.
On one occasion, “he
broke all the bones in the upper part of her mouth and lower
part of her nose.”
Id.
2
“Bipolar Disorder involves periods of elevated or
irritable
mood
(mania),
alternating
with
periods
of
depression. The ‘mood swings’ between mania and depression
can be very abrupt.”
Bipolar disorder, Pub Med Health,
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001924/,
last
visited May 20, 2011.
3
The
Plaintiff
has
taken
a
number
medications for her ailments since 2006:
of
prescription
(1) Depakote for
Bipolar Disorder, (2) Lisnoprel, Lotril and Enalapril for high
blood pressure, (3) Synthroid and Levothroxine for Hashimoto’s
Disease3,
(4)
Clonodine
and
Estraven
for
menopause,
(5)
Tremadal, Gabapentin, and Hydrocodone for her back pain, (6)
Albuterol
for
asthma,
(7)
Amatriptolene
and
Zoloft
for
depression, and (8) Seroquel for sleep disturbances. Tr. 115,
155, and 469.
In July of 2004, a diagnostic report from Seasons Center
for Community Health indicates Plaintiff was having increased
symptoms
of
life-long
depression
shaking, and highly distressed.”
symptoms
included
suicidal
and
appeared
Tr. 271 and 273.
thoughts,
alcohol/drug
withdrawal, relationship concerns, and flashbacks.
3
“tearful,
Her
abuse,
Tr. 272.
“In Hashimoto’s disease, also known as chronic
lymphocytic thyroiditis, your immune system attacks your
thyroid gland.
The resulting inflamation leads to an
underactive thyroid gland (hypothyroidism).”
Hashimoto’s
d i s e a s e ,
M a y o
C l i n i c ,
http://www.mayoclinic.com/health/hashimotos-disease/DS00567,
last visited May 20, 2011.
Hypothyroidism often results in a low metabolic rate,
weight gain, and somnolence. Stedman’s Medical Dictionary 841
(26th ed. 2006).
4
On
May
5,
2006,
the
Plaintiff
filled
out
an
adult
function report related to her first disability claim4.
183-90.
Tr.
She indicated she did not sleep well, cried a lot,
and stayed inside her home for fear of having to be around
other people. Tr. 183. She claimed her family wanted nothing
to do with her, and her only friend was her ex-husband.
188.
Tr.
The report concludes:
I really just hide at home because I fear
I may start drinking or doing something
dumb, or meeting someone who may be mean to
me or abuse me in any way.
My life is
better or safer at home.
Tr. 190.
As of May 4, 2006, the record indicates Plaintiff did not
have any private health insurance.
Tr. 110.
On May 11, 2006, Plaintiff’s daughter, Mrs. Hicks, filled
out
a
function
condition.
Tr.
report
191-98.
relating
In
the
to
her
report,
mother’s
she
mental
recognized
Plaintiff was physically capable of a full range of activities
from grocery shopping to mowing the lawn but had problems
managing money and focusing on tasks because of her mental
4
As previously noted, this Court is not reviewing the
Commissioner’s determination related to Plaintiff’s first
attempt to qualify for disability. Nevertheless, the function
report is relevant in that it deals with Plaintiff’s secondary
diagnosis, depression/bipolar disorder, for the complaint
currently before this Court.
5
illness. Tr. 191-95. Mrs. Hicks also noted Plaintiff had few
close friends, was moody and argumentative, suffered from
Agoraphobia5 and paranoia, and was estranged from her family.
Tr. 195-97.
Mrs. Hicks felt her mother’s mental condition
affected her memory, concentration, and ability to complete
tasks and get along with others.
Tr. 196.
On May 31, 2006, Dr. Marandola completed a psychological
assessment of Plaintiff.
Tr. 288.
revealed mild cognitive impairment.
A mental status exam
Tr. 291.
Dr. Marandola
also indicated Plaintiff was “not well-oriented to person,
place and time,” naming the wrong season, name of the facility
she was being interviewed in, and day.
Tr. 291-92.
Dr.
Marandola also indicated Plaintiff “had life long problems
with attention and concentration . . . difficulty interacting
with
people,”
public
over
including
extended
“supervisors,
periods
of
co-workers
time,”
and
and
the
difficulty
“consistently utilizing good judgment and adjusting well to
change.” Tr. 292-93. Plaintiff scored in the severe range of
5
“A mental disorder characterized by an irrational fear
of leaving the familiar setting of home, or venturing into the
open, so pervasive that a large number of external life
situations are entered into reluctantly or are avoided; often
associated with panic attacks.” Stedman’s Medical Dictionary
38 (26th ed. 2006).
6
depression.
Tr. 292.
Dr. Marandola assigned Plaintiff a
Global Assessment of Functioning (GAF) score of 53.6
On
June
19,
2006,
Dr.
Garfield
completed
Residual Functional Capacity (RFC) assessment.
a
mental
Tr. 221-37.
Dr. Garfield noted the Plaintiff had “a horrific childhood in
which she [was] repeatedly subject to very serious child
abuse.”
Tr. 223.
He noted her past diagnoses as Post
Traumatic Stress Syndrome (PTSD),7 “as well as Panic Disorder
with Agoraphobia, and Bipolar I Disorder.”8
Id.
Dr. Garfield
6
GAF “is for reporting the clinician’s judgment of the
individual’s overall level of functioning.” A score between
50 and 60 indicates “moderate difficulty in social
occupational, or school functioning.”
American Psychiatric
Association, Diagnostic and Statistical Manual of Mental
Disorders, 32 and 34 (4th ed., Text Revision 2000).
7
“Post-traumatic stress disorder is a type of anxiety
disorder. It can occur after you’ve seen or experienced a
traumatic event that involved the threat of injury or death .
. . People with PTSD re-experience the event again and again
in at least one of several ways. They may have frightening
dreams and memories of the event, feel as though they are
going through the experience again (flashbacks), or become
upset during anniversaries of the event.”
Post-traumatic
stress
disorder,
Pub
Med
Health,
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001923/,
last
visited May 20, 2011.
8
Type 1 bipolar disorder is the most severe form of
bipolar disorder. “People with bipolar disorder type 1 have
had at least one fully manic episode with periods of major
depression. In the past, bipolar disorder type 1 was called
manic depression.”
Bipolar disorder, Pub Med Health,
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001924/,
last
visited May 20, 2011.
7
assessed
the
Plaintiff
activities
of
daily
maintaining
social
with
moderate
restrictions
of
living,
moderate
difficulties
in
functioning,
moderate
difficulties
in
maintaining concentration persistence, or pace, and one or two
episodes of decompensation.9
Tr. 235.
The record does not
indicate whether Dr. Garfield interviewed the Plaintiff. Tr.
221-37.
Dr. Garfield concluded:
with her substance abuse now in early full
remission, greater stability has been
restored to her daily functioning, as
witness to regaining the trust of her adult
daughter that she can now be trusted to
take care of a grandchild.
Moderate
limitations can be expected in the area of
interpersonal
functioning,
which
is
probably also the case with attention,
concentration and pace.
So long as the
claimant can adhere to her present pattern
of abstinence, she can be expected to
remain capable of engaging in routine
unskilled competitive employment.
Id.
9
“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 . . . Episodes of decompensation may be inferred from
medical records showing significant alteration in medication;
or documentation of the need for a more structured
psychological support system.” 20 C.F.R. Pt. 404, Subpt. P,
App. 1, 12.00(A)(4).
8
On July 17, 2006, Dr. Daly completed a case analysis of
Plaintiff’s physical claims. Tr. 239. There is no indication
Dr. Daly examined the Plaintiff.
In the report, Dr. Daly
dwells on the Plaintiff’s credibility, noting a lack of
medical evidence and Mrs. Hick’s reports that Plaintiff could
mow the lawn and engage in other physical activities as
evidence
that
Plaintiff’s
claimed
arthritis
lacked
credibility. Dr. Daly further noted that “contributing to the
erosion of credibility is the history of alcohol abuse” and
“chronic use of marijuana.”
Tr. 239.
On October 7, 2006, the Plaintiff was in a car accident
and ejected from the vehicle through the windshield. Tr. 247,
302, and 400.
She landed approximately 28 rows into a
cornfield along the side of the road, culminating in two
fractures in her spine, a punctured lung, and damage to her
Pancreas.
Id.
Records from Mercy Medical Center indicate
Plaintiff’s spine fractures were an “L1 compression fracture”
with a 6.6 mm retropulsion10 and 10% angulation of the spine
and a “C7 nondisplaced cervical laminar11 fracture.”
Tr. 310
10
Stedman’s Medical
11
Stedman’s
“A pushing back of any part.”
Dictionary 1541 (26th ed. 2006).
A lamina is a “[t]hin plate or flat layer.”
Medical Dictionary 932 (26th ed. 2006).
9
and 323. As of October 16, 2011, she was exhibiting “moderate
pain across her lower back.”
“all extremities well.”
Tr. 312.
Tr. 313.
She was also moving
She was given a neck collar
and a Thoraco-Lumbo-Sacral-Orthosis12 (TLSO) brace to limit her
range of motion.
Tr. 350.
On November 2, 2006, Plaintiff visited Dr. Schumaker for
an examination 3 weeks after her accident.
Plaintiff noted
“mild improvement with her mid back pain.”
Tr. 352.
continued to wear her neck collar and TLSO brace.
On
November
7,
2006,
one
month
after
the
She
Id.
accident,
Plaintiff filled out a personal pain/fatigue questionnaire.
Tr. 167-70.
She indicated she could walk no more than a
block, could not sit for a long period of time, could not
think clearly due to pain, and could not tie her shoes.
Id.
On November 23, 2006, Plaintiff filled out a function
report.
Tr. 159-166.
She indicated she had difficulty
bending over and difficulty brushing her hair.
back pain woke her every 2 hours at night.
12
Tr. 161.
Her
Id.
“The most common form of a TLSO brace is called the
‘Boston brace’, and it may be referred to as an ‘underarm’
brace. This brace is . . . custom molded from plastic. It
works by applying three-point pressure to the curvature to
prevent its progression.”
Types
of
Scoliosis
Braces,
spine-health,
http://www.spine-health.com/conditions/scoliosis/types-scoli
osis-braces, last visited May 23, 2011.
10
On November 28, 2006, Dr. Schumaker gave Plaintiff an
eight week follow up exam.
Tr. 350-51.
Plaintiff complained
of “occasional low back pain” and “some left arm pain and some
left shoulder pain with radiating pain into her second and
third
digits
of
her
upper
left
extremity.”
Tr.
350.
Plaintiff had a “[n]ormal gait and station.”
Id.
She
exhibited normal strength, range of motion, and muscle tone of
her head, neck, spine, arms, and legs, excepting limitation in
motion due to the collar she wore for her neck injury and her
TLSO brace.
Id.
Overall, Plaintiff’s fracture was “stable.”
Id.
On
December
6,
2006,
Dr.
Morton
conducted
a
psychodiagnostic evaluation for disability services. Tr. 35861.
He diagnosed Plaintiff with Major Depressive Disorder,
recurrent and mild, Obsessive Compulsive Disorder13 (OCD), and
PTSD.
Though he indicated he conducted a brief review of her
psychosocial
history,
he
failed
to
mention
her
previous
diagnoses of Type I Bipolar Disorder or Panic Disorder with
13
“Obsessive-compulsive disorder is an anxiety disorder
in which people have unwanted and repeated thoughts, feelings,
ideas, sensations (obsessions), or behaviors that make them
feel driven to do something (compulsions).”
Obsessive-compulsive
disorder,
Pub
Med
Health,
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001926/,
last
visited May 23, 2011.
11
Agoraphobia.
Tr. 358-61.
Dr. Morton gave her a GAF of 65.14
He concluded:
It appears that there are minimal mental
limitations in regard to remembering and
understanding instructions, procedures, and
locations.
There are minimal mental
limitations in regard to carrying out
instructions.
There are minimal mental
limitations in regard to maintaining
attention, concentration, and pace. There
are mild mental limitations in regard to
interacting appropriately with supervisors,
co-workers, and the public.
There are
moderate mental limitations in regard to
using
good
judgment
and
responding
appropriately to changes in the work place.
Tr. 360-61.
On
January
1,
2007,
SSA
disability
examiner,
David
Fetters, completed a disability determination form for the
SSA.
Tr. 30.
Mr. Fetters is not a doctor, and the record
does not indicate he met with Plaintiff.
Tr. 30-31.
The form
notes Plaintiff suffered from a fracture of the C7 and L1
vertebrae and Major Depressive Disorder which was recurrent
and
mild.
impairments,
Tr.
Mr.
30.
In
Fetters
relation
references
to
a
Plaintiff’s
single
mental
assessment,
apparently Dr. Morton’s, indicating Plaintiff was “capable of
14
A GAF of 61 to 70 indicates “some difficulty in social,
occupational,
or
school
functioning.”
See
American
Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders 34 (4th ed., Text Revision 2000).
12
a wide range of work activity . . . .”
Tr. 31.
Mr. Fetters
concluded Plaintiff was not disabled based on this single
mental
assessment
and
a
yet
non-existent
physical
RFC
assessment scheduled for some time before October of 2007.
Tr. 31.
On January 5, 2007, Dr. Weis completed a physical RFC
assessment, upon which, somehow, the initial January 1, 2007,
denial of disability was partially based.
Tr. 30-31.
In his
assessment, Dr. Weis found Plaintiff could occasionally lift
20 pounds, frequently lift 10 pounds, stand and/or walk for
about 6 hours in an 8-hour workday, sit about 6 hours in an 8hour work-day, and push and/or pull an amount equal to her
ability to lift.
Furthermore, Dr. Weis found Plaintiff could
occasionally climb stairs, balance, stoop, kneel, crouch, and
crawl.
Tr. 242.
The form indicates there were no files from
treating or examining sources regarding Plaintiff’s physical
capacities on record.
Tr. 246.
Dr. Weis examined the Plaintiff.
There is also no indication
Dr. Weis concluded:
Improvement would be anticipated in terms
of function and improvement in range of
motion and reduction in symptoms of pain to
the extent claimant should be capable of
RFC as outlined prior to 12 months from her
[initial onset date].
Tr. 247.
13
On January 10, 2007, Dr. Davis completed a mental RFC
assessment.
Tr. 248.
Dr. Davis found Plaintiff had mild
restrictions of activities of daily living, mild difficulties
in maintaining social functioning, moderate difficulties in
maintaining concentration, persistence, or pace, and, contrary
to the earlier findings of Dr. Garfield, no episodes of
decompensation.
Tr.
262.
Dr.
Davis
noted
Plaintiff’s
credibility was “softened due to her reluctance to seek
counseling and her intermittent ongoing use of alcohol.”
250.
Tr.
There is no record indicating Dr. Davis interviewed or
examined Plaintiff.
Tr. 250.
On February 1, 2007, the Plaintiff filled out another
personal pain/fatigue questionnaire.
Tr. 143-146.
Plaintiff
reported sharp headaches, numbness on her entire left side,
and sharp pains in her back 24 hours a day.
Id.
She also
stated she could hardly walk some days and could not shave her
legs, put on socks, or tie her shoes.
On
function
February
report.
6,
2007,
Tr.
Id.
Plaintiff
135-142.
It
filled
out
indicates
another
she
has
difficulties standing, can only make simple meals, and needs
help vacuuming.
Tr. 136-37.
In conclusion she wrote:
“Due
to a bad car accident my whole life has changed for the worse.
14
I’m [too] depressed and in a lot of pain 24 hours a day.
need help.”
I
Tr. 142.
On February 9, 2007, Plaintiff’s daughter, Mrs. Hicks,
filled out a third party function report.
Tr. 127-34.
Mrs.
Hicks indicated her mother was “homebound much of the time.”
Tr. 94.
Though Mrs. Hicks noted Plaintiff could go shopping,
feed and let the dogs out, prepare simple meals, engage in
light cleaning, and occasionally babysit her grandchildren,
she could not do the laundry, vacuum, “walk long distances,
lift
objects
or
exercise”
insomnia” due to back pain.
and
suffered
Tr. 127-30.
from
“[f]requent
Mrs. Hicks further
indicated that her mother, “[w]hen in [a] manic phase, often
overspends with [her] credit card.”
suffers
from
“[f]requent
mood
relationship with her difficult.
Tr. 131.
swings”
Tr. 132.
She also
which
make
a
Mrs. Hicks also
noted Plaintiff’s illnesses and injuries affected her ability
to lift, squat, bend, stand, reach, walk, sit, kneel, climb
stairs,
complete
others.
Tr. 132.
tasks,
concentrate,
and
get
along
In conclusion, Mrs. Hicks wrote:
My mom is disabled due to her bipolar
disorder. She has never been able to hold
a job and is very unpredictable. Even on
[medications], she experiences periods of
deep depression that disable her from
getting out of bed. To compound this, she
15
with
was in a car accident in October[,] 2006[,]
that has left her with severe pain and
limitations.
Tr. 134.
On April 12, 2007, Dr. Martin filed a comprehensive
examination and report for the State of Iowa Disability
Determination
Services
Bureau.
Tr.
400-06.
At
the
examination, Plaintiff was still wearing her TLSO brace and
neck
collar.
Tr.
400.
Dr.
Martin
“felt
it
was
not
appropriate to remove [the braces] during the course of the
examination” because of her “history of trauma.”
Tr. 401.
She told Dr. Martin that “neurosurgical professionals” had
evaluated her and recommended “surgical intervention.”
Id.
She had considerable complaints about back and neck pain and
reported she was “not able to do much of anything as a
result.”
Id.
Dr. Martin noted that, given the car accident,
she was “going to have quite an inhibition on activity level.”
Tr. 403.
With respect to lifting or carrying weight, Dr.
Martin limited her to minimal weight occasionally. He thought
she would be able to stand only 1 to 2 hours in an 8 hour day.
He limited her walking to “no more than a block.”
should not stoop, kneel, or crawl.
“frequent
or
repetitious
upper
16
Id.
Id.
She
Dr. Martin deemed
extremity
grip,
grasp
or
manipulative
maneuvers”
as
ill-advised.
He
Id.
also
expressed that he “would not suggest exposures in the work
environment such as to dust, fumes, temperatures or hazards,”
based on the Plaintiff’s asthma.
Tr. 403.
Notably, Dr.
Martin also indicated his assessment of her strength was
limited due to “pain complaints.” Tr. 402. He had difficulty
discerning “whether or not any of her inhibition with respect
to strength testing [was] real or exaggerated.”
Id.
On May 7, 2007, Dr. Laura Griffith filed a disability
determination form denying the Plaintiff benefits.
Tr. 28.
In a brief explanation of her determination, Dr. Griffith
noted the medical evidence indicated Plaintiff was “making
steady improvements” with her mental health and back problems.
Tr. 28.
On September 7, 2007, Plaintiff went to Dr. Guerdet at
the Siouxland Community Health Center for continued back pain.
Tr. 409-09.
Dr. Guerdet noted that the Plaintiff stated she
was unable to go back to the orthopedic surgeon due to a lack
of funds but was recently accepted by the Iowa Cares program.
Tr. 408.
On November 20, 2007, Plaintiff was given an MRI pursuant
to her acceptance into the Iowa Cares program.
17
Dr. Baima
interpreted the MRI, noting a “[s]table L1 vertebral body
fracture with anterior fracture fragment and retropulsion.”
Tr. 433.
In January of 2008, Dr. Hitchon examined Plaintiff at the
University of Iowa Hospital pursuant to her acceptance into
the Iowa Cares program.
Plaintiff reported “significant
amount of low back pain and weakness throughout the left side
with weakness and numbness throughout the upper and lower
extremities.”
Tr. 431.
Dr. Hitchon noted an increase to 24
degrees of angulation due to her L1 fracture.
Id.
Plaintiff
displayed “a mild amount of weakness throughout the upper left
and
lower
questioned.”
left
Id.
extremities,”
but
her
“effort
[was]
Dr. Hitchon recommended a “conservative”
course of treatment “if at all possible.”
Tr. 432.
On October 7, 2008, the ALJ held a hearing in which
Plaintiff testified.
Tr. 458-92.
She testified she had
problems dressing, tying her shoes, and walking more than a
block.
Tr. 470-71.
On bad days, she stayed in her pajamas
and didn’t leave the house.
III.
Tr. 475.
ALJ’s Decision
Under the authority of the Act, the Social Security
Administration (SSA) has established a five-step sequential
18
evaluation process for determining whether an individual is
disabled and entitled to benefits.
20 C.F.R. §§ 404.1520 and
416.920. The five successive steps are: (1) determination of
whether claimant is engaged in “substantial gainful activity,”
(2) determination of whether claimant has a “severe medically
determinable physical or medical impairment” that lasts for at
least 12 months, (3) determination of whether claimant’s
impairment or combination of impairments meets or medically
equals the criteria of a listed impairment, (4) determination
of
whether
claimant’s
Residual
Functional
Capacity
(RFC)
indicates an incapacity to perform the requirements of his/her
past relevant work, and (5) determination of whether, given
claimant’s RFC, “age education and work experience,” claimant
can
“make
an
adjustment
to
other
work.”
20
C.F.R.
§
404.1520(4)(i-v) and 416.920(a)(4)(i-v).
At step one, if the Plaintiff is engaged in “substantial
gainful activity” within the period the Plaintiff claims to be
disabled, there is no disability during that period.
C.F.R. §§ 404.1520(a)(4)(i) and 416.920(a)(4)(i).
20
The ALJ
determined the Plaintiff had “not engaged in substantial
gainful activity” since her claimed initial onset date.
19.
19
Tr.
At step 2, if the Plaintiff does not have a “severe
medically determinable physical or mental impairment” that
lasts at least 12 months, there is no disability.
20 C.F.R.
§404.1520(a)(4)(ii) and 416.920(a)(4)(ii). The ALJ determined
the Plaintiff had the following severe impairments:
chronic low back pain, status post a motor
vehicle accident on October 7, 2006,
currently
treated
with
Tramadol
and
Gabapentin,
and
a
major
depressive
disorder, recurrent, currently treated with
Depakote.
Tr. 19.
At
step
3,
if
the
Plaintiff’s
impairments
meet
or
medically equal the criteria of an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1, and last at least 12
months, the Plaintiff is deemed disabled.
404.1520(e)
and
416.920(a)(4)(iii).
The
20 C.F.R. §§
ALJ
determined
Plaintiff did “not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments . . . .”
Tr. 19.
Before proceeding to step 4 and 5, the ALJ must determine
the Plaintiff’s RFC.
RFC is the “most” a person “can still
do” despite their limitations.
20 C.F.R. § 404.1545(a)(1).
The ALJ found Plaintiff had the following RFC:
20
claimant has the . . . capacity to perform
light work as defined in 20 C.F.R. §
404.1567(b) and 416.967(b) except should
not perform postural activities on more
than an occasional basis and is limited to
the performance of simple and routine
unskilled work activity.
Tr. 20.
At step 4, if, given Plaintiff’s RFC, Plaintiff can still
perform their past relevant work, there is no disability.
C.F.R. §§ 404.1520(a)(4)(iv) and 416.920(a)(4)(iv).
20
The ALJ
found the “exertional and/or mental requirements of jobs”
within the Plaintiff’s past relevant work history exceeded her
RFC.
Tr.
25.
In
reaching
his
determination,
the
ALJ
specifically noted Plaintiff could perform her previous job as
a housekeeper, but, given the duration of the employment and
earnings therefrom, it did not constitute “substantial gainful
activity” and, therefore, was not taken into consideration at
step 4.
Tr. 25 and 26.
At step 5, if, given Plaintiff’s RFC, age, education, and
work experience, the Plaintiff can make an adjustment to other
work, there is no disability.
and 416.920(a)(4)(v).
20 C.F.R. §§ 404.1520(a)(4)(v)
This step requires the ALJ to provide
“evidence” that the Plaintiff could perform “other work [that]
exists in significant numbers in the national economy.”
21
20
C.F.R. § 404.1560(c)(2).
In other words, at step 5, the
burden of proof shifts from the Plaintiff to the Commissioner
of the SSA.
Basinger v. Heckler, 725 F.2d 1166, 1168 (8th
Cir. 1984).
At the administrative level, an ALJ generally
calls a Vocational Expert (VE) to aid in determining whether
this burden can be met.
In this case, the ALJ concluded that, in accordance with
the testimony of the VE at the hearing and given Plaintiff’s
age, education, work experience, and RFC, there were other
jobs
“in
significant
numbers
in
the
national
economy”
Plaintiff could perform; specifically, the ALJ found Plaintiff
could perform her past job as a house cleaner.
IV.
Tr. 25.
Law and Analysis
1.
Standard of Review
This
Court’s
role
in
review
of
the
ALJ’s
decision
requires a determination of whether the decision of the ALJ is
supported by substantial evidence on the record as a whole.
See 42 U.S.C. § 405(g); Owen v. Astrue, 547 F. 3d 933, 935
(8th
Cir.
2008).
Substantial
evidence
is
less
than
a
preponderance but enough that a reasonable mind might find it
adequate to support the conclusion in question.
Juszczyk v.
Astrue, 542 F.3d 626, 631 (8th Cir. 2008) (citing Kirby v.
22
Astrue, 500 F.3d 705, 707 (8th Cir. 2007)).
This Court must
consider both evidence that supports and detracts from the
Karlix v. Barnhart, 457 F.3d 742, 746 (8th
ALJ’s decision.
Cir. 2006) (citing Johnson v. Chater, 87 F.3d 1015, 1017 (8th
Cir. 1996)).
In applying this standard, this Court will not
reverse the ALJ, even if it would have reached a contrary
decision, as long as substantial evidence supports the ALJ’s
Eichelberger v. Barnhart, 390 F.3d 584, 589 (8th
decision.
Cir. 2004).
is
outside
Barnhart,
The ALJ’s decision shall be reversed only if it
the
459
reasonable
F.
3d
934,
“zone
of
936
(8th
choice.”
Cir.
Hacker
2006)
v.
(citing
Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994)).
This Court may also ascertain whether the ALJ’s decision
is based in legal error.
(8th Cir. 2001).
Laurer v. Apfel, 245 F.3d 700, 702
If the ALJ applies an improper legal
standard, it is within this Court’s discretion to reverse his
decision.
Neal v. Barnhart, 405 F.3d 685, 688 (8th Cir.
2005); 42 U.S.C. 405(g).
2.
The ALJ’s RFC Assessment
An ALJ’s RFC assessment has been referred to as the “most
important issue in a disability case . . . .”
Malloy v.
Astrue, 604 F. Supp. 2d 1247, 1250 (S.D. Iowa 2009) (citing
23
McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982)(en
banc)).
When determining RFC, the ALJ must consider all of
the relevant evidence and all of the Plaintiff’s impairments,
even those which are not deemed severe, as well as limitations
which
result
from
symptoms,
such
as
pain.
20
C.F.R.
§
404.1545(a)(2) and (3).
This case presents a unique scenario because the ALJ did
not properly state the Plaintiff’s RFC in his decision.
He
instead provided a conclusion as to the type of work the
Plaintiff could perform, i.e. “light work as defined in 20
C.F.R. § 404.1567(b).”15
Tr. 20.
An RFC determination must list a Plaintiff’s “workrelated abilities on a function-by-function basis.”
96-8P, 1.
S.S.R.
Only then may a Plaintiff’s “RFC be expressed in
terms of the exertional levels of work, sedentary, light,
medium, heavy, and very heavy.” Id. To allow otherwise would
be to allow an ALJ to put the cart before the horse.
An
“[i]nitial failure to consider an individual’s ability to
15
§ 404.1567(b) defines light work as, “lifting no more
than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds.
Even though the weight
lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and
pulling of arm or leg controls.”
24
perform the specific work-related functions could be critical
to the outcome of a case”
Id.
The Commissioner’s brief contends the AlJ’s hypothetical
question posed to the VE at the hearing indicated the ALJ
properly assessed Plaintiff’s “abilities on a fuction-byfunction basis.”
Docket No. 17 at 20.
The ALJ did in fact
pose a hypothetical involving a person who could:
occasionally lift or carry 20 pounds,
frequently 10 pounds, can stand or walk or
sit about six of eight hours, push pull’s
unlimited, postural activities could be
performed occasionally, no manipulative or
visual or communicative or environmental
limitations.
Tr. 489.
Though
the
ALJ’s
hypothetical
did
not
detail
the
Plaintiff’s mental limitations, it did reference Dr. Davis’
mental RFC assessment.
Tr. 490.
Dr. Davis had concluded the
Plainitff was not significantly limited in 18 of the 20
categories related to residual mental functional capacity and
was only moderately limited in two:
(1) the ability to
respond appropriately to changes in work setting and (2) the
ability to maintain attention and concentration for extended
periods of time.
Tr. 248-49.
25
While the hypothetical the ALJ posed to the VE may
indicate he adopted a function-by-function RFC, it does not
appear he developed one.
This distinction is critical.
The
regulations require an ALJ to consider “all the relevant
medical and other evidence” on file.
C.F.R. §404.1520(e).
by-function
error.
(emphasis added) 20
An ALJ’s failure to include a function-
assessment
in
his
decision
constitutes
clear
At the very least, a conclusory RFC finding raises
questions as to whether “limitations or restrictions that
would narrow the ranges and types of work an individual may be
able to do” were overlooked.
3.
S.S.R. 96-8P, 3-4.
Medical Opinion Evidence
The regulations define medical opinions as “statements
from physicians and psychologists or other acceptable medical
sources that reflect judgments about the nature and severity
of . . . impairment(s).”
20 C.F.R. § 404.1527(a)(2).
If the
medical evidence on record is inconsistent, an ALJ has a duty
to weigh the evidence.
§ 404.1527(c)(2).
In aid of this
task, the regulations create a general hierarchy of medical
evidence, distinguishing the relative weight various sources
of medical evidence should be given.
§ 404.1527(d).
At the
top of the hierarchy are opinions from treating physicians,
26
next
are
non-treating,
examining
source
opinions,
and,
finally, there are opinions from non-examining sources, such
as state and federal consultants, whose opinions are limited
to a review of a plaintiff’s medical history.
Of course, this hierarchy is not absolute.
Id.
The opinions
of treating physicians are not automatically given more weight
than the opinions of examining and non-examining physicians.
The regulations go on to discuss a number of factors to be
considered when assessing the weight of medical opinions.
§
404.1527(d)(2)-(6). For instance, treating opinions should be
viewed in light of the “[l]ength of the treating relationship
and frequency of examination,” as well as the “[n]ature and
extent of the [treating] relationship,” including the type of
treatment provided and “the extent of examinations and testing
. . . provided.”
§ 404.1527(d)(2).
In addition, treating,
examining, and non-examining source opinions should all be
evaluated in terms of the relevant evidence used to support
the opinion, the internal consistency of the opinion, the
specialization of the source of the opinion, and other factors
a
plaintiff
Commissioner.
or
others
bring
to
§ 404.1527 (d)(3)-(6).
27
the
attention
of
the
4.
When
Plaintiff’s Physical Functional Capacity
determining
a
plaintiff’s
RFC
assessment,
the
regulations require a bifurcated approach with two separate
processes, one for determining a plaintiff’s relevant physical
limitations and another for determining a plaintiff’s relevant
mental limitations. See 20 C.F.R. 404.1545(b) and (c). While
the ALJ is the fact-finder who is ultimately responsible for
an RFC determination, a court may consider evidence that
weighs against the ALJ’s determination.
Wright v. Barnhart,
105 Fed. Appx. 883, 885 (8th Cir. 2004). The general standard
of review allows a district court to determine whether the
ALJ’s determination related to the medical evidence falls
outside the reasonable “zone of choice.”
See Nicola v.
Astrue, 480 F.3d 885, 886 (8th Cir. 2007) (citing Hacker v.
Barnhart, 459 F.3d 881, 885 (8th Cir. 2007).
The RFC the ALJ ascribed to Plaintiff was taken directly
from Dr. Weis’ physical assessment.
Tr. 241-42 and Tr. 489.
As previously noted, Dr. Weis determined the Plaintiff could
occasionally lift 20 pounds, frequently lift 10 pounds, sit
and stand and/or walk about 6 hours in an 8-hour work day,
push and/or pull an unlimited amount, and perform unlimited
postural activities occasionally. See Tr. 241-42. The record
28
does not indicate Dr. Weis ever examined the Plaintiff.
241-47.
Tr.
Dr. Weis also checked a box on the assessment form
indicating that his decision was made without the benefit of
treating
or
examining
source
Plaintiff’s physical capacities.
information
regarding
the
Tr. 246.
It is perplexing to understand how Dr. Weis arrived at
his
opinion
without
examining
Plaintiff
or
having
any
information from examining or treating physicians relating to
Plaintiff’s functional limitations.
Tr. 247.
In addition,
Dr. Weis’ evaluation was couched in terms of Plaintiff’s
prognosis and made at a time when the Plaintiff was, according
to Dr. Weis’ own notes, still in a “body cast.”
Tr. 247.
As
previously mentioned, Dr. Weis noted, “[i]mprovement would be
anticipated in terms of function and . . . range of motion and
reduction in symptoms of pain . . . .”
Id.
He concluded
that, prior to a year after her injuries were sustained,
Plaintiff “should be capable of [the] RFC as outlined.”
Tr.
247.
Four months after Dr. Weis assessed the Plaintiff’s RFC,
Dr. Martin examined Plaintiff and submitted a comprehensive
examination report to the Disability Determination Services
Bureau.
Tr.
400-06.
As
previously
29
noted,
Dr.
Martin
concluded Plaintiff, given the nature of her car accident, was
“going to have quite an inhibition on activity level.”
403.
Tr.
With respect to lifting or carrying weight, Dr. Martin
limited her to minimal weight occasionally.
He thought
Id.
she would be able to stand only 1 to 2 hours in an 8 hour day.
Id. He limited her walking to “no more than a block,” and
stated she should not stoop, kneel, or crawl.
Id.
He
expressed a need to limit her work environment to avoid dust
and fumes due to her asthma.
repetitious
upper
extremity
maneuvers” as ill-advised.
He also deemed “frequent or
Id.
grip,
grasp
or
manipulative
Id.
In arriving at his determination of Plaintiff’s RFC, the
ALJ gave “very little weight to the functional limitations
expressed by Dr. Martin.”
Tr. 23.
reasons for his determination:
The ALJ gave the following
(1) Plaintiff misrepresented
that corrective surgery had been recommended; (2) Plaintiff
misrepresented her need for the TLSO brace; (3) Dr. Martin
“assigned functional limitations . . . based on” Plaintiff’s
subjective “allegations” alone; and (4) Dr. Martin expressed
concerns about the credibility of Plaintiff’s limitations.
Tr. 23.
30
It is true that the record is void of any mention of a
recommendation that Plaintiff undergo surgery, however, prior
to her visiting Dr. Martin, there is also no indication that
surgery was ruled out.
It is also true that in 2008, Dr.
Hitchon, a neurosurgeon at the University Iowa Hospital,
recommended a “conservative” course of treatment “if at all
possible,” but this does not provide a reasonable basis for
the
ALJ’s
accusation
recommendation
for
that
Plaintiff
surgery.
Tr.
misrepresented
432.
Notably,
a
the
recommendations from the neurosurgeons at the University of
Iowa took place after Dr. Martin’s examination.
Id.
Given
the nature of Plaintiff’s accident, it is not unlikely that
one of the many physicians who treated her prior to Dr.
Martin’s examination discussed a potential need for surgery.
The
ALJ
also
noted
Dr.
Martin’s
conclusions
were
unreliable because Plaintiff was still wearing her TLSO brace
and neck collar.
The Commissioner’s brief points out that an
Advanced Registered Nurse Practitioner, Ms. Schumaker, had
instructed Plaintiff “to wear her back brace for only four
more weeks” four months prior to Dr. Martin’s evaluation, but
this is inaccurate.
Docket No. 17, 18.
Ms. Schumaker noted
Plaintiff should continue to wear her “TLSO brace application
31
for approximately [four] more weeks.”
351.
(emphasis added) Tr.
She also specifically instructed Plaintiff to continue
wearing her “rigid collar” application until an MRI was
obtained.
Tr. 351.
The Plaintiff did not obtain an MRI until
after Dr. Martin’s evaluation due to financial difficulties.
Tr. 23 and 433.
While the record may not absolutely bare out
Plaintiff’s representations to Dr. Martin, this Court is
persuaded
that
the
representations
as
ALJ’s
somehow
decision
false
or
to
label
misleading
these
is
not
supported by substantial evidence on the record as a whole.
The ALJ’s final two justifications for giving little
weight to Dr. Martin’s physical functional assessment should
be viewed in light of the ALJ’s final decision to adopt the
RFC as assessed by Dr. Weis.
least
some
of
his
Dr. Martin did indicate that at
assessment
was
based
on
Plaintiff’s
subjective allegations. Tr. 400-02. It is also true that Dr.
Martin
expressed
concerns
as
to
“whether
or
not
any
of
[Plaintiff’s] inhibition with respect to strength testing
[was] real or exaggerated,” but he ultimately settled on the
conclusion that the Plaintiff had real physical limitations.
Tr. 402-03.
Dr. Martin’s doubts related to and partial
reliance on Plaintiff’s subjective allegations may have been
32
significant in weighing the medical evidence if there had been
any other evidence from an examining source on record related
to Plaintiff’s functional limitations, but there was none.
The ALJ simply gave “very little weight” to Dr. Martin and
wholesale adopted the functional limitations opined by a nonexamining
consultant
who
considered
no
medical
evidence
related to Plaintiff’s functional capacities and developed his
RFC assessment based on what Plaintiff might be able to do
within the next twelve months.
Tr. 20-23.
In addition to his criticism of Dr. Martin’s findings,
the ALJ, as well as the Commissioner, direct this Court to
statements made by the Plaintiff and treating physicians for
general support of the ALJ’s physical RFC findings.
For
example, in terms of inconsistencies, the Plaintiff reported
that “moving and dancing” would reduce her pain.”
Tr. 24.
The Plaintiff also referred to her injury sustained in the
accident as a broken back when it was, according to the ALJ,
merely a fracture.
Tr. 22.
First, this Court is not concerned that “moving” helped
the
Plaintiff’s
back
pain;
it
is
common
knowledge
that
individuals with back problems often have to shift positions
to avoid pain.
Second, while some people dance vigorously,
33
others engage in more of a gentle sway, especially those
wearing a TLSO brace and a neck collar.
This Court refuses to
view Plaintiff’s singular notation related to dancing, amongst
numerous notations related to her debilitating pain, with a
cynical eye. Finally, the medical definition of a fracture is
a “break, especially the breaking of a bone or cartilage.”
Thus, though Plaintiff’s characterization of her injury may
have been dramatic, it is technically more accurate than the
ALJ’s medical assessment.
Stedman’s Medical Dictionary 686
(26th ed. 2006).
The
ALJ
and
the
Commissioner
statements in the treatment record.
also
point
to
brief
For instance, at one
point, the Plaintiff complained of “only occasional back
pain,” and Dr. Rizk described the Plaintiff as “overall doing
well . . . less than one moth after her accident.”
Tr. 22;
Docket No. 17, 17.
These brief statements and others must be
taken in context.
The statement that Plaintiff was “overall
doing well” was made eight weeks after she had been thrown
from a car, fractured her back in two places, and punctured a
lung.
Tr. 325.
It does not bear on whether Plaintiff was
then capable of full time work.
The statement that she had
“only occasional back pain” was made when she was still
34
wearing her TLSO brace, and was, according to a third party
function report from her daughter, “homebound” much of the
time.
Tr. 350 and
94.
Given the circumstances surrounding
and nature of the statements, they have little bearing on
Plaintiff’s
functional
limitations,
which
are
at
issue.
This Court is persuaded that, in adopting Dr. Weis’ RFC
finding, the ALJ overlooked some of Plaintiff’s functional
limitations. First, as previously mentioned, Dr. Martin noted
that “frequent or repetitious upper extremity grip, grasp or
manipulative
checked
a
maneuvers”
box
was
indicating
manipulative limitations.
ill-advised,
Plaintiff
had
Tr. 403 and 243.
while
no
Dr.
Weis
established
Dr. Martin also
noted Plaintiff should not stoop, kneel, or crawl, while Dr.
Weis checked a box indicating she had no such limitations
though she was in a “body cast” at the time he issued his
report.
Id.
Dr. Martin also expressed that he “would not
suggest exposures in the work environment such as to dust,
fumes, temperatures or hazards,” based on Plaintiff’s asthma,
while Dr. Weis checked a box indicating Plaintiff had no
environmental limitations. Tr. 403 and 244. Though it may be
argued that the ALJ’s justifications for giving little weight
to Dr. Martin’s RFC assessment explains why the ALJ failed to
35
include manipulative and postural limitations in his RFC
finding, his justifications were outside the reasonable zone
of choice and do not seem to apply to the environmental
limitations Dr. Martin identified.
Dr. Martin’s suggested
environmental limitations were not derived from conversations
with
Plaintiff,
Plaintiff’s
statement
related
to
a
recommendation for back surgery, or Plaintiff’s use of a TLSO
brace; they were derived from the notes of treating physicians
indicating Plaintiff had asthma issues and was using an
Albuterol
inhaler.
Tr.
401.
In
other
words,
the
environmental limitations came from a thorough review of the
record.
step-five
This oversight is particularly important, since, at
of
the
sequential
evaluation
process,
the
ALJ
determined the Plaintiff could work as a housekeeper/cleaner a job which would no doubt expose the Plaintiff to dust and
fumes - without identifying any other jobs available in the
national economy.
The
Tr. 26.
Commissioner’s
brief
cites
the
Eighth
Circuit’s
recent decision in Gates v. Astrue for the proposition that
“evidence from a non-examining medical source, combined with
treatment records, can constitute substantial evidence in
support of an ALJ’s decision.”
36
Docket No. 17, 19 (citing 627
F.3d 1080, 1082-83 (8th Cir. 2010)).
agreement.
This Court is in
The regulations state medical consultants are
“highly qualified” physicians. 20 C.F.R. § 404.1527(f)(2)(i).
However, Gates is distinguishable from the case at bar in that
the non-examining consultant appeared to be the only medical
opinion
on
record
limitations.
In
regarding
this
case,
the
the
plaintiff’s
ALJ
relied
functional
on,
without
discussing its merits, a patently flawed function report from
a non-examining consultant and dismissed a function report
from an examining physician.
Though this Court takes note of the Eighth Circuit’s
decision in Gates, the Gates’ Court did not abrogate the long
standing rule that “the opinion of a consulting physician
alone does not generally constitute substantial evidence . .
. .”
Krogmeier v. Barnhart, 294 F.3d 1019, 1024 (8th Cir.
2002) (citing Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir.
2001)).
when
This Court would add that this is especially true
there
is
a
report
from
a
competing
consultant
who
actually examined the Plaintiff, provided more explanation and
analysis for their decision, employed strength testing, and
based their decision on the Plaintiff’s current state rather
than conjecture.
Overall, this Court is persuaded the ALJ’s
37
determination
of
supported
substantial
by
the
Plaintiff’s
physical
evidence
and
RFC
not
outside
was
was
the
reasonable zone of choice given the record as a whole.
5.
Plaintiff’s Mental Functional Capacity
As
previously
noted,
throughout
her
history
with
Disability Services, the Plaintiff was diagnosed with numerous
mental disorders:
Bipolar Type 1 Disorder, Panic Disorder
with Agoraphobia, Post Traumatic Stress Disorder (PTSD), Major
Depressive
Disorder,
recurrent
Compulsive Disorder (OCD).
and
Tr. 223.
mild,
and
Obsessive
At step 2 of the
sequential evaluation process, the ALJ determined Plaintiff’s
only severe mental impairment was “major depressive disorder,
recurrent . . . .”
Tr. 19.
The ALJ failed to discuss why
Plaintiff’s other ailments did not qualify as severe.
As previously discussed, the ALJ, in terms of mental
impairments, determined the Plaintiff was only capable of
performing “simple and routine work activity,” which is a
conclusion rather than a function-by-function assessment. Tr.
19.
However, in his hypothetical posed to the Vocational
Expert (VE), the ALJ did reference Dr. Davis’ medical opinion
related to Plaintiff’s mental RFC.
Tr. 409.
Dr. Davis had
noted Plaintiff had moderate limitations in her ability to
38
respond appropriately to changes in work setting and the
ability
to
maintain
attention
extended period of time.
and
concentration
for
an
Tr. 248-49 and 490.
Dr. Davis, like Dr. Weis, did not examine the Plaintiff,
and, though Dr. Davis mentioned the Plaintiff’s PTSD and OCD,
she failed to mention the Plaintiff’s Panic Disorder with
Agoraphobia and concluded that her “medically determinable
impairment[s]”
were
“Depression/Bipolar.”
As
previously
noted, the regulations establish a clear preference, in most
instances, for the opinions of examining physicians over nonexamining physicians.
20 C.F.R. § 404.1527(d)(1).
As previously mentioned, prior to Dr. Davis’ review of
Plaintiff’s medical assessment, the Plaintiff was examined by
Dr. Marandola on May 31, 2006.
The ALJ noted Dr. Marandola’s
report without criticizing the results and indicated it was
consistent with his finding of RFC.
not accurate.
Tr. 21.
As previously noted, an RFC, properly crafted,
is a function-by-function assessment.
mental
“functional
individualized
“multiple
This is simply
limitation
process
issues
and
that
all
is
a
The assessment of
complex
requires”
relevant
and
highly
consideration
evidence
to
obtain
of
a
longitudinal picture” of a plaintiff’s “overall degree of
39
functional limitation.”
20 C.F.R. § 404.1520a.
In addition
to finding the same deficits Dr. Davis later found, Dr.
Marandola concluded that Plaintiff had life long difficulties
“interacting with people,” including “supervisors, co-workers
and
the
public,”
which
is
consistent
with
definition of Panic Disorder with Agoraphobia.
the
medical
Tr. 294-93.
Dr. Marandola also found Plaintiff had a long history of
difficulty using “good judgment and adjusting well to change,”
which may compromise a plaintiff’s relevant ability to make
simple
work-related
decisions
and/or
the
ability
to
realistic goals or make plans independently of others.
292-3.
set
Tr.
Further, while Dr. Davis and the ALJ, via adoption of
Dr. Davis’ report, determined Plaintiff had no significant
limitations
in
the
vast
majority
of
mental
functional
categories, Dr. Marandola gave Plaintiff a Global Assessment
of Functioning (GAF) score of 53, indicating Plaintiff was on
the
low
end
of
individuals
with
moderate
difficulties
throughout the spectrum of social/occupational functioning.
American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders, 32 and 34 (4th ed., Text Revision
2000).
40
As previously mentioned, in addition to Dr. Marandola,
Dr. Morton examined Plaintiff on December 6, 2006.
61.
He
diagnosed
her
with
Major
Tr. 358-
Depressive
recurrent and mild, OCD, and PTSD.
Disorder,
Dr. Morton assessed
Plaintiff with minimal limitations across the spectrum of
mental
functional
categories
with
the
exception
of
mild
limitations with regard to social interactions and moderate
limitations with regard to good judgment. Though he indicated
he conducted a brief review of her psychosocial history, he
failed to mention her previous diagnoses of Type I Bipolar
Disorder or Panic Disorder with Agoraphobia.
Tr. 358-61.
While Dr. Morton examined Plaintiff, and, as such, his opinion
should be given careful consideration, he failed to consider
some
of
Plaintiff’s
diagnosed
mental
conditions
without
identifying why and so no doubt failed to note corresponding
functional limitations.
The ALJ has a duty to weigh inconsistent evidence using
the relevant factors outlined in the regulations.
404.1527(c)(2) and (f)(2)(ii).
20 C.F.R.
The ALJ also has a duty to
“explain in the decision the weight given to the opinions of
a
State
agency
404.1527(f)(2)(ii).
medical
consultant.”
20
C.F.R.
§
Prior to adopting a consultative report,
41
an ALJ must consider whether “all the diseases, impairments
and
complaints
described
in
the
history
are
adequately
assessed and reported in the clinical findings” and “[w]hether
the
conclusions
correlate”
with
a
plaintiff’s
“medical
history, clinical examination[s] and laboratory tests . . . .”
20 C.F.R. § 404.1519p.
In this case, the ALJ did none of
these things and instead simply adopted the findings of Dr.
Davis.
Tr. 21.
Given the regulatory guidelines for weighing
medical evidence, this Court is persuaded that Dr. Marandola’s
assessment has more indica of reliability than that of Dr.
Davis or Dr. Morton.
Plaintiff.
First, Dr. Marandola examined the
Second, Dr. Marandola performed and based her
conclusions in a GAF.
Third, Dr. Marandola’s report is more
thorough, discusses all of Plaintiff’s mental impairments, and
directly
ties
those
mental
impairments
with
functional
limitations.
Mrs. Hicks’, Plaintiff’s daughter, third party function
reports
also
corroborate
Dr.
Marandola’s
findings.
As
previously outlined in the facts section, Mrs. Hicks was
predominantly concerned with her mother’s mental health.
In
the function report of May 11, 2006, Mrs. Hicks indicated
Plaintiff had problems managing her money and focusing on
42
tasks because of her mental illness.
described
Plaintiff
as
generally
Tr. 191-95.
anti-social,
She
moody,
argumentative, and paranoid. Tr. 195-97. In her report dated
February 9, 2007, Mrs. Hicks indicated her mother overspends
when gripped in mania and suffers from “frequent mood swings,”
making a relationship with her difficult.
Tr. 132.
She
concluded, “[m]y mom is disabled due to her bipolar disorder.
She
has
never
unpredictable.”
been
able
to
hold
a
job
and
is
very
Tr. 134.
In his decision, the ALJ never specifically refers to
Mrs. Hicks’ third party function reports.
Tr. 24.
He does
reference the function reports of “early February 2007,” and
criticizes them because they were filled out close in time to
Plaintiff’s automobile accident and as such “are given little
weight . . . as to [Plaintiff’s] subsequent experience of pain
and
ability
to
function.”
Tr.
24.
Still,
this
brief
criticism seems unrelated to Mrs. Hicks’ observations of her
mother’s mental condition; it only appears to erode the
importance of her observations of her mother’s physical pain
resulting from the car accident.
Furthermore, the ALJ simply
fails to comment on Mrs. Hicks’ third party function report
prior
to
Plaintiff’s
accident.
43
The
Eighth
Circuit
has
“frequently criticized” the failure of an ALJ “to consider
subjective testimony of family and others.” Smith v. Heckler,
735 F.2d 312, 317 (8th Cir. 1984).
such
testimony,
it
must
be
“If the ALJ is to reject
specifically
credibility determinations expressed.”
discussed
and
Id.
Mental illness waxes and wanes over time, and Mrs. Hicks
was the only person on record in a position to have a
longitudinal understanding of her mother’s mental condition.
Furthermore, there is an obvious social stigma attached to
admitting that a family member suffers from mental illness.
For these reasons, this Court finds Mrs. Hicks’ lay opinions
particularly persuasive.
In general support of his mental RFC finding, the ALJ
noted that Plaintiff had “limited use of anti-depressant
medication and little follow-up with her primary care provider
for treatment for depression . . . .”
noted
in
the
fact
section
above,
Tr. 22.
the
However, as
record
indicates
Plaintiff has an extensive history of taking medications, and
though Plaintiff did, at one time, decrease her Depakote
prescription
on
her
own,
this
Court
was
unable
to
find
substantial evidence on record that Plaintiff was not taking
the proper medications throughout most of the period for which
44
she seeks disability.
See Tr. 115, 155, and 469.
Further,
when dealing with mental disorders, the ALJ’s “decision ‘must
take into account evidence indicating that the [Plaintiff’s]
true functional ability may be substantially less than the
[Plaintiff] asserts or wishes.’”
Hutsell v. Massanari, 259
F.3d 707, 711 (8th Cir. 2001) (citing Parsons v. Heckler, 739
F.2d 1334, 1341 (8th Cir. 1984).
Though Plaintiff may have, on occasion, failed to seek
medical treatment for her mental illnesses, the record also
indicates she generally had a valid excuse.
At one instance,
Plaintiff declined a follow up psychiatric review due to a
lack of transportation. Tr. 22. At the time, Plaintiff lived
some 60 miles from the Siouxland Community Health Center in
Sioux City, Iowa, where she was being treated; and, despite
the fact that she does not drive, she, overall, did make
frequent trips to Sioux City for treatment.
Tr. 407-430.
The record also indicates Plaintiff did not have any
private health insurance as of May 4, 2006.
Tr. 110.
An
“inability to afford medication” or medical treatment “cannot
be used as a basis for a denial of benefits.”
205 F.3d 1084, 1086 (8th Cir. 2000).
Tang v. Apfel,
Finally, even accepting
the ALJ’s accusations of failure to seek treatment on their
45
face, the Eighth Circuit
has
recognized
that
a
mentally
ill
claimant’s noncompliance with treatment can
be, and ordinarily is, the result of her
mental impairment, and thus is not willful
or without a justifiable excuse.
Conklin v. Astrue, 360 Fed. Appx. 704, 706 (8th Cir. 2010)
(citing Pate-Fires v. Astrue, 564 F.3d 935, 945-47 (8th Cir.
2009)).
For the above reasons, this Court is persuaded that the
ALJ’s
RFC
finding
in
relation
to
Plaintiff’s
mental
impairments is not supported by substantial evidence on the
record as a whole.
V.
Conclusion
It is clear the ALJ erred in several respects.
The
question then becomes whether this Court should remand for
further consideration or solely for the purpose of awarding
benefits. The Eighth Circuit has held that a remand for award
of benefits is appropriate where “the record ‘overwhelmingly
Buckner v. Apfel, 213
supports’” a finding of disability.
F.3d 1006, 1011 (8th Cir. 2000) (citing Thompson v. Sullivan,
957 F.2d 611, 614 (8th Cir. 1992)).
After
careful
review
of
the
record,
this
Court
is
convinced that the overwhelming majority of the evidence on
the
record
as
a
whole
supports
46
the
conclusion
that
the
Plaintiff’s combination of mental and physical impairments
rendered her disabled as of the date of the Plaintiff’s car
accident on October 7, 2006.
Therefore, the Commissioner’s decision is reversed and
remanded solely for the calculation of benefits.
IT IS SO ORDERED this 15th day of September, 2011.
__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa
47
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