Irby v. Social Security Administration, Commissioner of

Filing 19

MEMORANDUM AND ORDER: The judgment of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this memorandum and order. Signed by U.S. District Senior Judge Sam A. Crow on 2/18/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JONASENA IRBY,
Plaintiff,
vs.

Case No. 12-1412-SAC

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,1
Defendant.

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits and supplemental security income payments.
The matter has been fully briefed by the parties.
I.

General legal standards
The court's standard of review is set forth in 42 U.S.C.

§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."

The court should review the Commissioner's

decision to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
(10th Cir. 1994).

Glenn v. Shalala, 21 F.3d 983, 984

Substantial evidence requires more than a

1

Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013, replacing Michael J.
Astrue, the former Commissioner of Social Security.
1

scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the
conclusion.

The determination of whether substantial evidence

supports the Commissioner's decision is not simply a
quantitative exercise, for evidence is not substantial if it is
overwhelmed by other evidence or if it really constitutes mere
conclusion.

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Although the court is not to reweigh the evidence, the findings
of the Commissioner will not be mechanically accepted.

Nor will

the findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's conclusions are
rational.
1992).

Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.

The court should examine the record as a whole,

including whatever in the record fairly detracts from the weight
of the Commissioner's decision and, on that basis, determine if
the substantiality of the evidence test has been met.

Glenn, 21

F.3d at 984.
The Social Security Act provides that an individual shall
be determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period of
twelve months which prevents the claimant from engaging in
substantial gainful activity (SGA).
2

The claimant's physical or

mental impairment or impairments must be of such severity that
they are not only unable to perform their previous work but
cannot, considering their age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.

42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential
evaluation process to determine disability.

If at any step a

finding of disability or non-disability can be made, the
Commissioner will not review the claim further.

At step one,

the agency will find non-disability unless the claimant can show
that he or she is not working at a “substantial gainful
activity.”

At step two, the agency will find non-disability

unless the claimant shows that he or she has a “severe
impairment,” which is defined as any “impairment or combination
of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities.”

At

step three, the agency determines whether the impairment which
enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled.

If

the claimant’s impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her previous
work; unless the claimant shows that he or she cannot perform
their previous work, they are determined not to be disabled.
3

If

the claimant survives step four, the fifth and final step
requires the agency to consider vocational factors (the
claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th

the analysis.
Cir. 1993).

At step five, the burden shifts to the

Commissioner to show that the claimant can perform other work
that exists in the national economy.

Nielson, 992 F.2d at 1120;

Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The

Commissioner meets this burden if the decision is supported by
substantial evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case
On August 18, 2011, administrative law judge (ALJ) James

Harty issued his decision (R. at 13-24).

Plaintiff alleges that

she has been disabled since May 15, 2009 (R. at 13).

Plaintiff

is insured for disability insurance benefits through December
4

31, 2013 (R. at 15).

At step one, the ALJ found that plaintiff

has not engaged in substantial gainful activity since
plaintiff’s alleged onset date (R. at 15).

At step two, the ALJ

found that plaintiff has the following severe impairments:
bipolar I disorder; schizophrenia, paranoid type; and alcohol
dependence (R. at 16).

At step three, the ALJ determined that

plaintiff’s impairments do not meet or equal a listed impairment
(R. at 17).

After determining plaintiff’s RFC (R. at 18), the

ALJ determined at step four that plaintiff is unable to perform
any past relevant work (R. at 23).

At step five, the ALJ

determined that plaintiff could perform other jobs that exist in
significant numbers in the national economy (R. at 23-24).
Therefore, the ALJ concluded that plaintiff was not disabled (R.
at 24).
III.

Did the ALJ err in his evaluation of the evidence

pertaining to plaintiff’s mental impairments, including the
weight given to the opinions of Dr. Wallace a treatment
provider, and by failing to consider work reports from
plaintiff’s former employers?
This case centers on the severity of plaintiff’s mental
impairments.

Dr. Wallace, plaintiff’s treating psychiatrist,

summarized a very detailed psychiatric evaluation dated December
14, 2010 (R. at 442-449) by stating the following:

5

Ms. Jonasena Irby is a 33-year old…who has a
history of bipolar symptoms of mania and
depression. Since age 18, she has been
hospitalized three or four times…Ms. Irby
has a history of not being able to sustain
employment. Within the past five years, her
longest held position was at CCL. During
this time she was working on third shift.
During this time, she was hospitalized at
Osawatomie State Hospital for a mania
episode. Upon her return, after being
stabilized, she was unable to sustain this
job. She struggles socially with making
connections with people and is hesitant to
trust anyone. She also struggles with the
ability to focus and her memory. Even when
she took a job during the holiday season at
JcPenney’s as a stocker, she found the job
difficult to understand. Due to Ms. Irby’s
ongoing depressive symptoms, she often lacks
motivation, experiences a low mood, and
often feels indecisive, which leads to her
frequently being late to work or calling in
sick.
Ms. Irby’s ongoing bipolar symptoms of
mania, depression, inability to connect with
others, difficulties with memory and focus
prevent her from being able to maintain
gainful employment. Ms. Irby is clearly
disabled and unable to work.
(R. at 449).
On February 25, 2011, Dr. Wallace prepared a mental RFC
assessment for the plaintiff, finding that she was markedly
impaired in 10 of 20 categories (R. at 451-453).

He stated that

she has proven she cannot sustain employment despite efforts to
do so (R. at 452).

The ALJ gave little weight to these opinions

because, according to the ALJ, they were not consistent with the

6

treatment notes, plaintiff’s own reports, and has no support
from other evidence in the record (R. at 22).
On July 14, 2011, Dr. Wallace stated the following:
Ms. Irby was released from Larned State
Hospital on 6/24/11…Despite the intensive
services that have been working with Ms.
Irby and intensive medication management,
she continues to be symptomatic with such
symptoms of mania, delusion, disorganized
thoughts, insomnia, and agitation.
Ms. Irby is clearly disabled and unable to
work.
(R. at 531).

On March 20, 2012, Dr. Wallace stated the

following:2
Ms. Irby has received services from Cowley
County Mental Health from June 2009 until
the present…
Since June 2009, Ms. Irby has had two
psychiatric hospitalizations. The first
hospitalization was from June 17, 2009 to
June 24, 2009 at Osawatomie State Hospital.
Upon her return from that hospitalization,
she was still highly manic. The second
hospitalization was from May 11, 2011 to
June 26, 2011 at Larned State Hospital.
Again she returned highly manic and
delusional. Per Ms. Irby’s report she has
had 4 to 5 psychiatric hospitalizations
since age 18.3
Even with medication, Ms. Irby continues to
struggle with mental illness symptoms that
affect her ability to function daily and to
maintain employment. She has attempted to
2

This letter was written after the ALJ decision of August 18, 2011, but is referenced because it discusses her
treatment, hospitalizations and employment history before that date.
3
The record includes inpatient hospital records from Eastern State Hospital in Oklahoma which indicate that
plaintiff was hospitalized from April 4, 1997 to June 27, 1997 (R. at 487-496). Plaintiff reported other
hospitalizations in 2002 and 2004 to Dr. Wallace (R. at 446).
7

work, but her longest employment stint was
approximately 3 to 4 years ago. Her
employer at that time was CCI and this job
lasted one year. Her most recent job was
working at a nursing home in 2011. She was
eventually let go after frequent tardiness
and missed work days….
It is just a matter of time that Ms. Irby is
hospitalized once again. Ms. Irby is
clearly disabled and unable to work in any
capacity that would be sustained. Her
inability and disability are solely the
result of her chronic mental illness.
(R. at 536-537).
The ALJ gave little weight to the opinions of Dr. Wallace
dated December 14, 2010 and July 14, 2011 because: (1) the
determination of whether a claimant can work is a decision
reserved to the Commissioner, (2) a record from July 1, 2011
stated that Dr. Wallace had not seen plaintiff since March 28,
20114 and stated he had no information on her, and (3) his
opinions lack support from treatment notes or objective findings
and are not consistent with the other information of record (R.
at 22).
The ALJ gave “significant” weight to the opinions of Dr.
Kresser and Dr. Jessop, who did not see or evaluate plaintiff,
but examined the record (R. at 21-22, 406-420, 441).

4

Dr.

The treatment note of July 1, 2011 actually states that Dr. Wallace saw the plaintiff on July 1, 2011 for 30 minutes
that day, and further noted that she had last been seen on March 28, 2011. It noted that she had been hospitalized at
Larned for about a month (May 11, 2011 to June 26, 2011), which would clearly account for Dr. Wallace not seeing
her during that time. The note then states that “I have absolutely no information on her,” and referenced her
medications (R. at 533). It would appear that Dr. Wallace was indicating that he had no information regarding her
recent hospitalization at Larned, including what her medications were.
8

Kresser signed the assessment on November 13, 2009 (R. at 409410), and Dr. Jessop affirmed the assessment on March 22, 2010
(R. at 441).

Thus, this assessment by medical sources predated

her six week hospitalization at Larned State Hospital.5
A key factor in discounting the opinions of Dr. Wallace
that she had marked impairments and was unable to work (in which
Dr. Wallace took into account her work history), was the ALJ’s
assertion that the opinions of Dr. Wallace were not supported by
the record.

The record includes reports from former employers,

which will be carefully examined.
The first report was from CCL.

Plaintiff was employed

there from June 23, 2008 through August 10, 2009.

Plaintiff

worked as a direct support professional, providing direct care
to individuals with developmental disabilities.
plaintiff was terminated for no call/no show.

It noted that

It noted she

failed to check in, and slept on duty, and that she failed to
follow supervisor instructions.

She required a lot of

supervision on her last day of work.

She was unable to care for

her own caseload of clients without asking for help; she could
not take care of her clients by herself.

She had trouble

getting along with co-workers and supervisors (R. at 317-319).

5

When this case is remanded, the ALJ should take into account the fact that the medical record obviously underwent
material changes in the 21 months between the report by Dr. Kresser (November 13, 2009) and the ALJ decision
(August 18, 2011). The report does not account for material objective evidence that developed after this report,
including a 6 week in-patient psychiatric hospitalization. As noted in Chapo v. Astrue, 682 F.3d 1285, 1292-1293
(10th Cir. 2012), an ALJ’s reliance on a patently stale opinion is troubling.
9

The second report was from JC Penneys.

She worked there

from October 15, 2009 through January 11, 2010.
difficulty with retaining information.

Plaintiff had

She had to be retrained

every day, and would still have trouble keeping up.

She had

problems performing her duties in a timely and satisfactory
manner.

Supervisors had to “stick” with her to make sure she

performed duties adequately.

Although concentration was

adequate, speed was an issue.
to catch on to her job duties.

Plaintiff never seemed to be able
Plaintiff could not learn new

tasks within an acceptable time frame.

Because she could not

keep up with the fast pace, her hours were reduced.

The

employer would not rehire this person (R. at 321-323).
The records from Larned State Hospital also contain
information regarding plaintiff’s employment at Good Samaritan
Society in 2010.
2010.

She apparently worked there from July-December

It noted that she was terminated when she called in after

9 absences and 19 tardies (R. at 529-530).
The ALJ made no mention or reference to the evidence
pertaining to plaintiff’s work history, as set forth above.

In

Blea v. Barnhart, 466 F.3d 903 (10th Cir. 2006), the ALJ failed
to discuss or consider the lay testimony of the claimant’s wife;
the ALJ’s decision failed to mention any of the particulars of
the testimony of claimant’s wife, and in fact, never even
mentioned the fact that she did testify regarding the nature and
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severity of her husband’s impairments.

The court held as

follows:
In actuality, the ALJ is not required to
make specific written findings of
credibility only if “the written decision
reflects that the ALJ considered the
testimony.” Adams, 93 F.3d at 715. “[I]n
addition to discussing the evidence
supporting his decision, the ALJ also must
discuss the uncontroverted evidence he
chooses not to rely upon, as well as
significantly probative evidence he
rejects.” Clifton v. Chater, 79 F.3d 1007,
1009 (10th Cir.1996).
Here, the ALJ made no mention of Mrs. Blea's
testimony, nor did he refer to the substance
of her testimony anywhere in the written
decision. Thus, it is not at all “clear that
the ALJ considered [Mrs. Blea's] testimony
in making his decision.” Adams, 93 F.3d at
715. Additionally, Mrs. Blea's testimony
regarding her husband's suicidal thoughts is
not only uncontroverted; it serves to
corroborate Dr. Padilla's psychiatric
examination of Mr. Blea, where he stated
that Mr. Blea has been dysthymic for years.
[citation to record omitted] Thus, the ALJ's
refusal to discuss why he rejected her
testimony violates our court's precedent,
and requires remand for the ALJ to
incorporate Mrs. Blea's testimony into his
decision. “Without the benefit of the ALJ's
findings supported by the weighing of this
relevant evidence, we cannot determine
whether his conclusion[s] ... [are]
supported by substantial evidence.” Threet,
353 F.3d at 1190; see also Baker v. Bowen,
886 F.2d 289, 291 (10th Cir.1989) (“[W]here
the record on appeal is unclear as to
whether the ALJ applied the appropriate
standard by considering all the evidence
before him, the proper remedy is reversal
and remand.”).

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Blea, 466 F.3d at 915.
According to Blea, the ALJ, at a minimum, should indicate
in his decision that he has considered the 3rd party testimony.
Defendant concedes, as was the case in Blea, that the ALJ did
not mention either statement in her decision (Doc. 18 at 14).
Thus, it is not at all clear that the ALJ considered the
statements of her former employers when making his decision.
As set forth above, Dr. Wallace noted the problems
associated with plaintiff’s work history in support of his
opinion that plaintiff was clearly disabled and unable to work
because of her mental impairments.

Thus, as in Blea, the

statements from her former employers are uncontroverted and
serve to corroborate the statements and opinions of Dr. Wallace.
Without the benefit of the ALJ’s findings supported by the
weighing of this highly relevant evidence, the court cannot
determine whether the ALJ’s conclusions are supported by
substantial evidence.

Therefore, this case shall be remanded in

order for the ALJ to examine the statements from her former
employers, and reexamine the opinions of Dr. Wallace in light of
these statements.
Other findings of the ALJ are also questionable and need to
be reexamined when this case is remanded.

The ALJ found that

plaintiff had no episodes of decompensation, which have been of
extended duration.

The ALJ then stated:
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The claimant does not have a history of
psychiatric hospitalizations and she has not
alleged any episodes of decompensation due
to psychiatric issues.
(R. at 18).
First, the report from Dr. Kresser found that plaintiff had
one or two repeated episodes of decompensation, each of extended
duration (R. at 418).

Despite giving “substantial” weight to

her opinions, the ALJ did not mention Dr. Kresser’s opinion on
this subject, and gave no reason for discounting it in his
opinion.
Second, the ALJ stated that plaintiff “does not have a
history of psychiatric hospitalizations” (R. at 18).

However,

the record clearly establishes that plaintiff was hospitalized
for nearly 3 months in 1997 at Eastern State Hospital in
Oklahoma for a psychiatric disorder (R. at 488-497), she had a 1
week psychiatric hospitalization at Osawatomie in 2009, and she
had a 6 week psychiatric hospitalization at Larned in 2011 (R.
at 536).6

Plaintiff was admitted to Osawatomie by emergency

court order due to manic episode; plaintiff had not slept for 1
week (R. at 359).

Plaintiff was admitted to Larned when she had

not slept for 4 days, was bordering on manic, very irritated,
agitated, impulsive, with racing thoughts.
knows she is out of control (R. at 513).

6

Plaintiff stated she

Plaintiff reported

The psychiatric hospitalizations at Osawatomie and Larned both took place after her alleged onset of disability.
13

other psychiatric hospitalizations to Dr. Wallace as well (R. at
446, 449).7
This statement by the ALJ in light of the clear evidence
otherwise raises serious questions about whether the ALJ
carefully examined all the evidence before reaching his
decision.

On remand, the ALJ must examine all the evidence

relating to plaintiff’s psychiatric hospitalizations, and
consider them in conjunction with the reports and opinions of
Dr. Wallace and statements from her former employers.
IV.

Did the ALJ err in finding that plaintiff’s impairments did

not meet or equal listed impairment 12.04?
The ALJ found that plaintiff’s impairments do not meet or
equal listed impairment 12.04 (R. at 17).

Plaintiff asserts

that substantial evidence does not support this finding.

The

court will not address this issue because it may be affected by
the ALJ’s resolution of the case on remand after examining the
statements from former employers, reevaluating the statements
and opinions of Dr. Wallace, and examining all the evidence
relating to plaintiff’s numerous psychiatric hospitalizations.
See Robinson v. Barnhart, 366 F.3d 1078, 1085 (10th Cir. 2004).

7

Later in his opinion, the ALJ mentioned that plaintiff “presented” to Osawatomie State Hospital and Larned State
Hospital (R. at 19). The ALJ did not mention that she was hospitalized at those psychiatric facilities for 1 and 6
weeks, respectively. The ALJ never mentioned her history of other psychiatric hospitalizations, including a nearly 3
month psychiatric hospitalization in 1997. The court cannot understand how the ALJ could state that plaintiff “does
not have a history of psychiatric hospitalizations” in light of the ALJ’s own acknowledgement that she had been
admitted to these two state psychiatric hospitals.
14

IT IS THEREFORE ORDERED that the judgment of the
Commissioner is reversed and remanded pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings consistent with
this memorandum and order.
Dated this 18th day of February 2014, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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