Mallory v. Social Security Administration, Commissioner of
Filing
19
MEMORANDUM ORDER AND OPINION. IT IS THEREFORE ORDERED BY THE COURT THAT Defendant's decision denying Plaintiff disability benefits is REVERSED and REMANDED to the agency for further proceedings consistent with this opinion. Signed by District Judge Julie A. Robinson on 9/20/2012. (pp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TABATHA JALAYNE MALLORY,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
___________________________________ )
)
)
)
)
)
)
)
)
)
)
)
Civil No. 12-4024-JAR
MEMORANDUM ORDER AND OPINION
This matter is before the Court seeking review of the final decision of the Defendant
Commissioner of Social Security denying Plaintiff Tabatha Mallory’s application for
supplemental security income (“SSI”) benefits under Title XVI of the Social Security Act.1
Upon de novo review, the Court reverses and remands the decision of the Commissioner.
I.
Procedural History
In 2009 Plaintiff applied for SSI benefits with a protective filing date of December 15,
2007. Plaintiff’s application was denied initially and upon reconsideration. Plaintiff timely
requested a hearing before an administrative law judge (“ALJ”). After a hearing, the ALJ issued
a decision finding that Plaintiff was not disabled; the Appeals Council denied Plaintiff’s request
for review of the ALJ’s decision. Plaintiff then timely sought judicial review before this Court.
II.
Standard for Judicial Review
Judicial review under 42 U.S.C. § 1383(c)(3) is limited to whether defendant’s decision
is supported by substantial evidence in the record as a whole and whether defendant applied the
1
42 U.S.C. §§ 1381 et seq.
correct legal standards.2 The Tenth Circuit has defined “substantial evidence” as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”3 In the course
of its review, the court may not re-weigh the evidence or substitute its judgment for that of
defendant.4
III.
Legal Standards and Analytical Framework
Under the Social Security Act, “disability” means the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment . . . ”5 An individual
shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he 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 the national economy . . .6
The Secretary has established a five-step sequential evaluation process to determine whether a
claimant is disabled.7 If the ALJ determines the claimant is disabled or not disabled at any step
along the way, the evaluation ends.8
2
See White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001) (citing Castellano v. Sec’y of Health &
Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994)).
3
Id. (quoting Castellano, 26 F.3d at 1028).
4
Id.
5
42 U.S.C. § 423(d)(1)(A); § 416(i); § 1382c(a)(3)(A).
6
Id. § 423(d)(2)(A); § 1382c(a)(3)(B).
7
20 C.F.R. § 416.920(a); Thompson v. Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1983).
8
Id.
2
IV.
Discussion
Plaintiff does not challenge the ALJ’s determination at step one that Plaintiff has not
engaged in substantial gainful activity since May 1, 2009, the application date. Nor does
Plaintiff challenge the ALJ’s determination at step two that Plaintiff has medically “severe”
impairments of: asthma, anxiety, bipolar disorder, borderline personality, generalized myalgia
and obesity. Plaintiff implicitly challenges the ALJ’s determination at step three that Plaintiff’s
impairments or combination of impairments do not meet or medically equal the listings 12.04
(Affective Disorders), 12.06 (Anxiety Related Disorcers), and 12.08 (Personality Disorders).9
And Plaintiff expressly challenges the ALJ’s determination, at step four, that Plaintiff’s mental
residual functional capacity (“RFC”) allows her to “perform simple, routine, repetitive tasks with
no interaction with the public and occasional interaction with coworkers and supervisors.”
Plaintiff contends that the ALJ’s determinations were the product of three errors: (1) improperly
weighing the opinions of treating and non-treating physicians; (2) improperly assessing
Plaintiff’s credibility; and (3) failing to order a consultative examination.
The ALJ found that the evidence failed to establish the presence of “paragraph C”
criteria, as there is “no history of an inability to function outside of a highly supportive living
arrangement or outside the area of the claimant’s home.” The ALJ also found that Plaintiff’s
mental impairments failed to satisfy the “paragraph B” criteria, in that she did not have marked
restrictions in at least two functional areas. The ALJ further found that Plaintiff had only mild
restriction in activities of daily living, moderate difficulties in social functioning, and moderate
difficulties in concentration, persistence and pace. The ALJ also found that while Plaintiff had
9
20 C.F.R. Pt. 404, subpt. P., app. 1, Listing of Impairments.
3
experienced “one to two episodes of decompensation, each of extended duration,” she did not
meet the “paragraph B” requirement of repeated episodes of decompensation of extended
duration, meaning three episodes within one year, or an average of once every four weeks, each
lasting for two weeks.
The Court agrees with Plaintiff, that the ALJ’s findings are based on incomplete or
erroneous information, and inconsistent rationale. First, contrary to the ALJ’s finding with
respect to the “paragraph C” criteria, there was evidence of a history of an inability to function
outside of a highly supportive living environment. In July 2009, Plaintiff’s records at the
“Residence” inpatient center at Valeo Behavioral Health (“Valeo”) noted that to avoid
hospitalization, Plaintiff “needs 24 hour support in a safe and secure environment.” Plaintiff was
admitted to the “Residence” for inpatient psychiatric care after a suicide attempt in June 2009,
and after a several day stay in Stormont Vail Hospital.
And, with respect to the ALJ’s findings on the “paragraph B” criteria, the Court finds
additional errors. The ALJ found that Plaintiff had mild restrictions in activities of daily living
and moderate difficulties in social functioning, concentration, persistence and pace, relying upon
the opinions of the State agency psychologists who reviewed Plaintiff’s medical records, but
never examined Plaintiff. The State agency psychologists, Lauren Cohen, Ph.D. and Witt S.
Douglas, Ph.D, opined that Plaintiff has average intelligence, problems with dysregulation of
mood and behavior, and should have infrequent contact with the public, but has no limits
understanding and remembering and can follow simple and intermediate instructions as well as
adapt to changes in her work routine.
The ALJ explained that she gave “great weight” to the opinions of Drs. Cohen and
4
Douglas, because she found that their opinions were consistent with the record as a whole. Yet,
the ALJ gave “little weight” to the treatment records from Valeo, even though that is virtually
the only medical evidence of Plaintiff’s mental impairments in the record. Other than Plaintiff’s
outpatient and inpatient treatment records at Valeo, the only other medical evidence in the record
pertaining to Plaintiff’s mental impairments is a notation by Dr. Henderson in May 2008 that
Plaintiff had reported having an anxiety attack, and the inpatient records of Stormont Vail from
Plaintiff’s hospitalization in June 2009 after a suicide attempt. It was certainly a contradiction
for the ALJ to find that the treatment records should be given little weight, but then justify the
opinions of agency psychologists because their opinions were consistent with that same record.
A treating source opinion may be given controlling weight if it is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques,” and is not inconsistent with
other substantial evidence in the record, but if it is “deficient in either respect, it is not entitled to
controlling weight.”10 Here, there is no treating source opinion that addresses all of the factors
the ALJ must consider under the paragraph B and C criteria.
Yet, there are opinions and findings in the record that should be considered, such as an
opinion found in the July 2009 inpatient treatment records at the Residence at Valeo, where she
was treated after she was hospitalized following a suicide attempt. The fact that Plaintiff’s
condition was at times severe is documented in the opinion, which states that at that time,
Plaintiff needed to be in a fully supportive environment 24 hours a day to avoid further
hospitalization. The ALJ did not consider this evidence, as she erroneously found that “claimant
has not been hospitalized . . . due to her mental condition.” Moreover, with respect to
10
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (quoting 20 C.F.R. § 404.1527(d)(2) and
citing SSR 96- 2p, 1996 WL 374188, at *5 (July 2, 1996)).
5
concentration, persistence and pace, Valeo’s records documented that Plaintiff “presented with
immature behavior and difficulty staying on subject.” It was error to give no weight to the
findings and notations in the treatment records. For “[e]ven if a treating physician’s opinion is
not entitled to controlling weight, ‘[t]reating source medical opinions are still entitled to
deference.’”11 Here, the ALJ gave no weight, much less deference to the treatment records.
The ALJ justified giving little weight to the treatment records because Plaintiff was
treated at Valeo from August 2008 to September 2009, and the relative time period began in
May 2009, when Plaintiff filed her application for SSI. To be sure, the length of the treatment
relationship is an appropriate consideration. In fact, in Goatcher v. U.S. Department of Health &
Human Services,12 the Tenth Circuit directed the ALJ consider the following factors in
determining what weight to give any medical opinion: (1) the length of the treatment relationship
and the frequency of examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing performed; (3) the
degree to which the physician’s opinion is supported by relevant evidence; (4) consistency
between the opinion and the record as a whole; (5) whether the physician is a specialist in the
area upon which an opinion is rendered; and (6) other factors brought to the ALJ’s attention
which tend to support or contradict the opinion.13 But, it was error to give little weight and no
deference to the only treating opinions and records, even though the course of treatment was
eleven months.
11
Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004).
12
52 F.3d 288, 290 (10th Cir. 1995) (citing 20 C.F.R. § 404.1527(d)(2)-(6)).
13
Id.
6
The ALJ also explained that Plaintiff missed appointments and that justifies giving little
weight to the treatment records, for Plaintiff did not receive a complete course of treatment. To
be sure, Plaintiff missed appointments, particularly in November of 2008, yet she was examined
and treated numerous times over the course of the eleven month period. And, to be sure, at times
Plaintiff was not compliant with her medications; and at times her condition improved when she
was compliant. Yet the treatment records also demonstrate that over the course of a year
Plaintiff’s condition did not stabilize. As the ALJ found, Plaintiff’s Global Assessment of
Functioning score (“GAF”) ranged from 58 (indicative of moderate difficulties) to 25 (indicative
of hallucinations and delusions). GAF scores have no direct correlation to the severity
requirements of the mental disorder listing.14 And, GAF scores are not dispositive, but are a
subjective clinical determination of the individuals’ overall level of functioning.15 Nevertheless,
GAF scores should be considered.
And here, the GAF scores as well as other progress reports do not clearly demonstrate
that Plaintiff consistently improved with medication, or that Plaintiff was improving over time.
According to the progress notes, Plaintiff was doing “fairly well” in August 2008 during the time
she was employed at the daycare center. By the end of October 2008 she was unemployed and
having extreme anxiety. She had been taking Seroquel, but in late October 2008, her doctor
prescribed Clonazepam, in addition to the Seroquel. Plaintiff missed all her appointments in
November, but she was seen in December 2008 and January 2009, at which time she reported
improvement from taking the Clonazepam. But, in December, January and March, she
14
65 Fed. Reg. 50746-01, 50764-65, 2000 WL 360176, 2000 WL 1173632 (August 21, 2000).
15
See Chester v. Apfel, 182 F.3d 931 (Table), 1999 WL 360176, at *3 n.1 (10th Cir. 1999).
7
continued to have anxiety attacks, temper outbursts and irritability. In May 2009, Plaintiff
reported continued problems with rages, mood regulation, relationship difficulties, racing
thoughts and attention deficit, despite taking the Seroquel and Clonazepam.
At Plaintiff’s June 1, 2009 visit, she reported being under a lot of stress, having
worsening mood swings and irritability, poor sleep and anxiety. She asked for a mood stablilizer
and agreed to again try Geodon despite having side effects in the past. Things did not improve
in June, as Plaintiff attempted suicide by overdose later that month, and was hospitalized at
Stormont Vail Hospital for five days, and then admitted for inpatient psychiatrice treatment at
the Residence at Valeo until early July, 2009. In August and September 2009 Plaintiff continued
being treated as a outpatient at Valeo. In these visits she reported worsening symptoms,
increased anxiety and panic attacks, thoughts of self-harm, depression and anxiety. In Plaintiff’s
last recorded visit at Valeo in September 2009, the psychologist observed significant
improvement in her overall symptoms, which Plaintiff attributed to her living situation
improving upon her mother moving out. She reported that she continued to have racing
thoughts. At best, Plaintiff’s condition was volatile, and not continually improving during her
year of treatment at Valeo. Thus, the ALJ erred in relying upon the opinions of the State agency
psychologists as consistent with the record, while at the same time giving little weight to the
treatment record.
Similarly, the ALJ discredited the other type of evidence in the record, the testimony and
statements of Plaintiff. This too is inconsistent with her justification for reliance upon the State
agency psychologists’ opinions as consistent with the record. Nonetheless, as the Tenth Circuit
has explained, “[c]redibility determinations are peculiarly the province of the finder of fact, and
8
we will not upset such determinations when supported by substantial evidence.”16 Thus, the
Court gives some deference to the ALJ’s credibility determination.
The ALJ discredited Plaintiff’s testimony and statements for a number of reasons. First,
she noted that Plaintiff continues to smoke despite having asthma, and that Plaintiff has not
always been compliant with her medication. Yet, Plaintiff’s financial difficulties were at least
one reason for this noncompliance. The ALJ also discredited Plaintiff because she missed a
number of appointments at Valeo; yet the records at Valeo note that Plaintiff struggled with
remembering and keeping appointments, indicating that missing appointments is not necessarily
volitional, and may be attributable to her mental impairments.
The ALJ also discredited Plaintiff’s testimony about the severity of her social
functioning, finding that Plaintiff co-habitates with her boyfriend and takes care of the needs of
the household. Yet the record also demonstrates that Plaintiff has difficulty co-habitating with
him; she has been arrested twice for domestic assault. Moreover, during a time period when
Plaintiff also lived with her mother and sister, she continually reported heightened anxiety and
stress due to this living arrangement. Indeed, Plaintiff is currently on probation for threatening
her sister.
The ALJ also discredited Plaintiff’s testimony because Plaintiff had worked for some
time in a day care center. Yet Plaintiff quit this job to avoid being terminated for arguing with
her supervisor, evidence indicative of problems with social functioning.
Under these circumstances, when the ALJ essentially gave little or no weight to the
record evidence, which included the treatment records and Plaintiff’s statements and testimony,
16
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).
9
it was error to give great weight to the opinions of the state agency psychologists because those
opinions were purportedly consistent with the record. This is a situation in which a consultative
examination should have been ordered. In a situation where the claimant does not provide
sufficient evidence about her impairment and the ALJ is unable to obtain adequate evidence
from the claimant’s treating source(s) or other medical source(s), it is proper for the ALJ to
request a consultative examination.17 In this case, the Court finds that there is evidence in the
record that established a reasonable possibility of the existence of a disability, and the Court
finds that the result of a consultative examination could reasonably be expected to be of material
assistance in determining whether Plaintiff is disabled.18
V.
Conclusion
For the above stated reasons, this matter must be reversed and remanded for further
proceedings, wherein the ALJ must (1) obtain a consultative examination; and (2) consider and
weigh that opinion of the examining practitioner in accordance with the law; and (3) consider
and determine Plaintiff’s credibility in accordance with the law.
IT IS THEREFORE ORDERED BY THE COURT THAT Defendant’s decision
denying Plaintiff disability benefits is REVERSED and REMANDED to the agency for further
proceedings consistent with this opinion.
IT IS SO ORDERED.
Dated: September 20, 2012
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
17
20 C.F.R 416.919a.
18
Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. Okla. 1997).
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?