Evans v. Berryhill

Filing 19

MEMORANDUM OPINION AND ORDER that: 1. Plaintiff's Motion for Summary Judgment (Doc. No. 13 ) is GRANTED; 2. Defendant's Motion for Summary Judgment (Doc. No. 16 ) is DENIED; and 3. The Commissioner's denial of benefits is REVERSE D, and this matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for calculation and award of benefits with a disability onset date of October 1, 2008. LET JUDGMENT BE ENTERED ACCORDINGLY.(Written Opinion) Signed by Magistrate Judge Becky R. Thorson on 8/31/2017. (MMP)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Cheryl Ann Evans,

Civ. No. 16-2628 (BRT)

Plaintiff,
v.
Nancy A. Berryhill,
Acting Commissioner of
Social Security, 1

MEMORANDUM
OPINION AND ORDER

Defendant.

Jyotsna Asha Sharma, Esq., Disability Partners PLLC, counsel for Plaintiff.
Gregory G. Brooker, Esq., United States Attorney’s Office, counsel for Defendant.

BECKY THORSON, United States Magistrate Judge.
Pursuant to 42 U.S.C. § 405(g), Plaintiff Cheryl Ann Evans seeks judicial review
of the final decision of Defendant Commissioner of Social Security denying her
applications for disability insurance benefits and supplemental security income. This
matter is before the Court on the parties’ cross-motions for summary judgment, in
accordance with D. Minn. LR 7.2(c)(1). (Doc. Nos. 13, 16.) For the reasons stated below,
the Commissioner’s denial of benefits is not supported by substantial evidence in the
record, and the record convincingly establishes that Plaintiff is disabled within the
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant
to Federal Rule of Civil Procedure Rule 25(d), Nancy A. Berryhill is substituted for
Carolyn W. Colvin as the Defendant in this action.

meaning of the Social Security Act. Therefore, Plaintiff’s motion for summary judgment
is granted, Defendant’s motion for summary judgment is denied, and this matter is
remanded for calculation and an award of benefits.
BACKGROUND
I.

Procedural History
Plaintiff applied for Title II disability insurance benefits (“DIB”) on May 21,

2013, and for Title XVI supplemental security income (“SSI”) on June 30, 2014. (Tr.
17.) 2 For both applications, Plaintiff alleged a disability onset date of October 1, 2008.
(Tr. 17, 167.) The Social Security Administration denied Plaintiff’s claims initially and
upon reconsideration. (Tr. 108–12, 116–18.) Plaintiff then appealed to an Administrative
Law Judge (“ALJ”). (Tr. 119–20.) At Plaintiff’s request, an ALJ held an in-person
hearing on April 15, 2015. (Tr. 39–82.) On April 23, 2015, the ALJ denied Plaintiff’s
applications. (Tr. 14–38.) The SSA Appeals Council then denied Plaintiff’s request for
review on May 31, 2016, making the ALJ’s decision the final decision of the
Commissioner. (Tr. 1–4); see 20 C.F.R. § 404.981.
On August 3, 2016, Plaintiff filed this action seeking judicial review pursuant to
42 U.S.C. § 405(g). (Doc. No. 1.) Defendant filed an answer on October 12, 2016. (Doc.
No. 10.) The parties have filed cross-motions for summary judgment pursuant to the
Local Rules. (Doc. No. 14, Pl.’s Mem. Supp. Mot. Summ. J. (“Pl.’s Mem.”); Doc. No.

2

Throughout this Order and Opinion, the abbreviation “Tr.” is used to reference the
Administrative Record. (Doc. No. 11.)

2

17, Def.’s Mem. Supp. Mot. Summ. J. (“Def.’s Mem.”).) 3 Plaintiff argues that the
Commissioner’s denial of benefits should be reversed, and this matter should be
remanded for an immediate award of benefits, because the evidence in the record
overwhelmingly supports the conclusion that she is disabled due to her agoraphobia. (See
Pl.’s Mem.) Plaintiff also argues that she cannot work because she cannot leave her home
by herself due to her agoraphobia. (See id.)
II.

Factual Background
Plaintiff is a high school graduate who was born on January 9, 1968. (Tr. 49, 190.)

Before her alleged onset date, Plaintiff worked as a fabric care aide at a nursing home, an
administrative assistant for a collection agency, and most recently, from January 2002
until December 2005, as a tutor/education assistant at an elementary school. (Tr. 196.) In
this job, Plaintiff tutored students in math and science and supervised children on the
playground and in the lunch room. (Tr. 197.) From January 2002 until October 2009,
Plaintiff also worked as a caretaker/leasing agent at her apartment building. (Tr. 196.)
Plaintiff did not receive a paycheck for this work because it was a rent reduction job.
(Tr. 203.) 4 She has not worked since she lost her tutoring job and stopped working as a
leasing agent. Plaintiff currently lives with her longtime boyfriend of thirteen years, and
she has a daughter from a previous marriage who is in college. (Tr. 49.)
3

During the pendency of this appeal, Plaintiff filed a new claim for SSI benefits on
June 28, 2016, and was approved on September 4, 2016, on the basis of meeting Listing
12.06, Part C. (Pl.’s Mem. 2.)
4

Plaintiff did receive a small paycheck for the last month she lived there because
there was no rent to reduce the following month. (Tr. 203.)
3

At some point in 2007, Plaintiff began experiencing increased anxiety and
developed agoraphobia. (See Tr. 45, 271–73.) Plaintiff’s treating therapist, Dr. Kathleen
Wise, MA, LP, diagnosed Plaintiff with panic disorder with agoraphobia and major
depression, recurrent severe. (Tr. 326.) Plaintiff’s condition left her essentially
homebound, except for when she was able to leave with her “safety people”––family
members such as her boyfriend, her daughter, and her sister. (Tr. 45.) At the hearing,
Plaintiff testified about her condition as follows:
I get dizzy. The world becomes distorted. I don’t know how to––visually
distorted. Everything seems crooked and I’m wobbly on my feet. I feel
that––you know, I always feel like I’m going to fall down or––everything is
just loud and distorted.
....
There’s no drive or no sunny side that a person sees to make anything
worthwhile. It’s just bleak . . . . [E]verything is bleak.
....
[I fear] [p]retty much everything sometimes it feels like. I fear people. I feel
like they’re going to harm me. I fear people. I––and noise, and everything.
Going in the car over 30 miles an hour. I just see doom around every
corner. It––I’m not sure how else to describe, you know, all of my fears.
But it’s crowds, it’s rooms that are too small, it’s rooms that are too big, it’s
ceilings that are too low, it’s lights that are too bright, it’s too dark, it’s lots
of things. It’s life basically.
(Tr. 59–60, 62.)
III.

The ALJ’s Findings and Decision
On April 23, 2015, the ALJ issued a decision denying Plaintiff’s applications for

benefits. (Tr. 17–33.) The ALJ found that Plaintiff was not disabled as defined by the
Social Security Act from October 1, 2008, through the date of the decision. (Tr. 18, 33.)
4

The ALJ followed the five-step evaluation process dictated by 20 C.F.R.
§ 404.1520(a)(4), which involves the following determinations: (1) whether Plaintiff is
involved in “substantial gainful activity”; (2) whether Plaintiff has a severe impairment
that significantly limits her mental or physical ability to work; (3) whether Plaintiff’s
impairments meet or equal a presumptively disabling impairment listed in the
regulations; (4) whether Plaintiff has the residual functional capacity (“RFC”) to perform
her past work; and (5) if Plaintiff cannot perform her past work, whether the government
has shown that Plaintiff can perform other work, and that there is a sufficient number of
those jobs available in the national economy. (Tr. 18–19.)
At step one of the evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since her alleged onset date of October 1, 2008. (Tr. 19.) At
step two, the ALJ determined that Plaintiff had the following severe impairments:
depression, not otherwise specified; major depression, recurrent; agoraphobia; panic
disorder with agoraphobia; anxiety; and generalized anxiety disorder. (Id.)
Because the ALJ determined that Plaintiff had severe impairments, he continued to
step three of the analysis. At this step, a claimant must show that her impairment or
combination of impairments meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. § Part 404, Subpart P, Appendix 1. See 20 C.F.R.
§ 404.1520(a)(iii). The ALJ relied on the objective medical evidence, in addition to the
testimony of Dr. Karen Butler, Ph.D, a neutral medical expert who testified at the
hearing, in finding that the claimant’s mental impairments do not meet or equal the
criteria of Listings 12.04 and 12.06. (Tr. 17, 20.) Beginning with the paragraph B criteria,
5

the ALJ credited Dr. Butler’s opinion that Plaintiff has moderate restrictions in activities
of daily living “evidenced by her fairly intact range of activities which reflect that the
claimant has the ability to do activities of daily living but is reduced depending on her
level of depression and anxiety in any given day.” (Tr. 20.) The ALJ did note Plaintiff
often “did not take baths for days, which was a reflection of the depth of her depression”
(Tr. 20), and could only shop in stores “after hours if accompanied by her significant
other or her daughter.” (Tr. 21.) Even so, Plaintiff did the laundry, simple cooking,
knitted hats, scarves and wash cloths, managed her finances, watched television and did
Sudoku puzzles, played computer games, took care of and taught tricks to her dog, and
attended to her personal care. (Tr. 20–21.) Plaintiff also cared for her elderly father when
he lived independently, exercised, and worked on a deck project with her daughter during
the claim period. (Id.)
Regarding social functioning, the ALJ discussed Dr. Butler’s testimony regarding
Plaintiff’s relationships, which are “confined within her family as opposed to specific
friendships, clubs, hobbies or other activities outside of her home.” (Tr. 21.) The ALJ
further considered Plaintiff’s testimony that “she would have difficulty forming trusting
relationships if she became employed, she has fears people are going to harm her, sees
doom around every corner and in crowds, and only feels comfortable being around her
trusted network of family members and her significant other.” (Id.) The ALJ found no
more than moderate social limitations, however, apparently because Plaintiff watched
television in her home with her family and talked on the phone with her sister. (Id.)

6

The ALJ also found moderate difficulties in concentration, persistence or pace,
due in part to her activities of daily living. (Id.) The ALJ pointed to a June 2013 function
report, where Plaintiff indicated she did not need reminders or encouragement to attend to
her personal needs, take her medications, or do household chores, but had difficulty
paying attention, following written and spoken instructions, and handling stress or
changes in routine. (Id.) Plaintiff also presented a “constricted affect and dysphoric
mood” to her treating providers, but she typically presented as alert and fully oriented
with normal speech, thought process, attention, memory, and fund of knowledge, and had
no difficulty understanding treatment recommendations, maintaining conversation, or
asking appropriate questions. (Id.) Plaintiff also answered questions appropriately at the
hearing and there was no evidence that Plaintiff did not understand the content of the
hearing. (Id.) “Resolving conflicts in the evidence,” the ALJ found “no more than
moderate difficulties in maintaining concentration, persistence, or pace.” (Tr. 21–22.)
Finally, the ALJ found no episodes of decompensation, such as psychiatric
hospitalization, enrollment in day treatment, or any increase in outpatient psychotherapy
for an extended period. (Tr. 22.)
Regarding the paragraph C criteria, the ALJ stated that the record did not reflect
“repeated episodes of decompensation, a residual disease process that has resulted in such
marginal adjustment that even a minimal increase in mental demands or change in the
environment would be predicted to cause decompensation, or a current history of one or

7

more years’ inability to function outside a highly supportive living arrangement.” (Id.) 5
The ALJ therefore found that Plaintiff’s impairments did not meet or equal a listing.
Before step four, the ALJ found that Plaintiff had the RFC to perform a full range
of work at all exertional levels, but with the following nonexertional limitations: limited
to unskilled to semi-skilled tasks; no more than infrequent contacts and superficial
contacts with others in a work setting; and she should not be serving the public as a
primary part of her job tasks. (Tr. 22.)
The ALJ began by outlining the Plaintiff’s allegations:
The claimant . . . alleges she is disabled and unable to work due to mental
health impairments and symptoms, which interfere with her ability to leave
her home without people she trust[s], and which causes her to become
dizzy, wobbly on her feet and distorts her world when she does leave her
home unaccompanied. In addition, the claimant testified as a result of her
psychological symptoms, she is only able to drive for short distances in the
radius of her house, she only goes to places she can handle, she is often
driven to places by her sister and significant other, her future outlook is
bleak and she struggles to get out of her bed five to six days out of the
month. Further, she testified she has fears of people harming her, fear of
noise and of driving over thirty miles per hour and sees doom everywhere
around her. Additionally, the claimant stated she would have difficulty
forming a trusting relationship with another person if she became
employed, did not have the concentration necessary to work and could only
concentrate for a short time. The symptoms of claimant’s condition have
reportedly affected several of her work-related activities, such as memory,
completing tasks, concentration, understanding and following instructions.

5

These are the paragraph C criteria for Listing 12.04, not 12.06. 20 C.F.R. Pt. 404,
Subpt. P, App 1, § 12.04(C) (effective January 2, 2015 to May 17, 2015). At the time of
the ALJ’s decision, the paragraph C criteria for Listing 12.06 required a showing that an
individual had a “complete inability to function independently outside the area of one’s
home.” Id. § 12.06(C).
8

(Tr. 23–24.) The ALJ found that Plaintiff’s allegations were credible “subject to a degree
of functional restriction as a result of her mental impairments and symptoms.” (Tr. 24.)
Thus, the RFC was reduced to accommodate Plaintiff’s difficulties in performing
complex, stressful work with prolonged or intense social contacts. (Id.) However, the
ALJ rejected the contention that Plaintiff was completely unable to work “due to
significant inconsistencies in the records as a whole and a lack of objective evidence to
support her complaints.” (Id.)
First, the ALJ gave “great weight” to the conclusions of Dr. Butler, an expert in
clinical psychology, who “carefully scrutinized the comprehensive, objective,
longitudinal records and had the opportunity to observe and question the claimant at the
hearing.” (Tr. 25.) Dr. Butler opined that the medical evidence described someone who
could perform unskilled or semi-skilled work, but with only brief, superficial and
infrequent contacts with others in a job where serving the public is not a primary task.
(Id.) This was in spite of Dr. Butler’s “concerns” about inconsistencies in the record as to
the severity of Plaintiff’s mental health symptoms, her daily functioning, and her
compliance with prescribed medications. (Tr. 24.) Plaintiff was functioning well and
independently, but had difficulty being outside of her home and was not consistently
compliant with her treatment medications. (Id.) Additionally, the recommended treatment
for Plaintiff’s anxiety would be incremental exposure to the things making her anxious,
but Plaintiff had never undergone such treatment and was now seeking a new therapist.
(Tr. 24–25.)

9

The ALJ noted that Plaintiff’s treatment had been conservative, primarily
individual psychotherapy sessions, and she often failed to follow through with treatment
recommendations or consistently comply with prescribed medications. (Tr. 25.) The ALJ
also observed that Plaintiff’s symptoms are typically related to situational stressors, such
as her inability to work outside of her home, finances, her shaky relationship with her
boyfriend, her elderly father’s living arrangement, who recently suffered a stroke, and her
daughter moving away to college. (Id.) The ALJ cited a comment made by Plaintiff’s
treating therapist, Dr. Wise, who stated that Plaintiff was stressed about finances, yet
Plaintiff responded with “shock” when it was suggested that she could eventually return
to work. (Id.)
The ALJ asserted that “overall” the records demonstrate that Plaintiff’s symptoms
are “generally effectively controlled with medication management and the claimant
acknowledged improvements in her mental health symptoms.” (Tr. 26.) The ALJ also
cited to the testimony of Dr. Butler, however, who stated that Plaintiff’s “symptoms did
not respond to some medications while other medications improved or reduced the
claimant’s symptoms although there is no indication in the medical evidence any single
medication completely alleviated her mental health symptoms.” (Id.) The ALJ then
discussed in some detail Plaintiff’s continuing failure to her take her medications or
adhere to suggestions made by various providers such as Dr. Wise, Dr. Steven Clarke,
Dr. Dawn Graham, and Dr. Richard Gebhart. (Tr. 25–27.) For example, on January 11,
2011, Dr. Wise noted that Plaintiff had not taken her antidepressant medication,
prescribed to her a year earlier by her primary care provider, because she did not like
10

taking medications. (Tr. 27.) In May 2012, Plaintiff reported to Dr. Gebhart that she
stopped taking her medication three months prior and had developed a “who cares”
attitude. (Id.) Dr. Wise also stated in June 2013 that Plaintiff “has a variety of reasons
why she cannot possibly follow through on any treatment suggestions and that everything
appears to be an effort which she cannot muster.” (Id.) And in August 2013, Dr. Clarke
noted that Plaintiff unilaterally stopped taking one of her medications and determined that
her antidepressant was helpful enough, and that she would continue to try making
changes in her life but not her medication. (Id.) The ALJ concluded that Plaintiff’s
“unwillingness to follow prescribed medical treatment seriously reduces the credibility of
claimant’s allegation that she is disabled.” (Id.) 6
In light of the foregoing, the ALJ found that Plaintiff’s “comprehensive allegations
of disability due to her various mental impairments are not completely credible,” and the
objective medical evidence did not corroborate the alleged level of restrictions. (Tr. 28–
29.) Moreover, Plaintiff’s daily activities, discussed above, suggested to the ALJ that
Plaintiff is “more active than alleged.” (Tr. 29.)
Turning to the opinion evidence, the ALJ gave “some weight” to two medical
source statements by Dr. Wise, dated March 2011 and June 2013. (Tr. 29.) In the March
2011 statement, Dr. Wise stated that Plaintiff “had several situational stressors in her life,
6

The ALJ also considered “several assessed GAF scores of 50 in the file, which
could be considered a form of medical opinion.” (Tr. 28.) The ALJ reasoned that the use
of these scores is “severely impaired by a lack of reliability, validity, and subjective
interpretation,” and they are “not representative of claimant’s generally robust activities.”
(Id.) Thus, the ALJ gave them little weight. (Id.)

11

had not been compliant with prescribed medications, did not seem interested in
eventually returning to work and that it was Ms. Wise’s hope that the claimant could find
her way back to employment.” (Id.) In the June 2013 statement, Dr. Wise noted that
Plaintiff’s symptoms “had worsened despite numerous suggestions and interventions
because of the claimant’s inability to follow through with treatment recommendations
and her noncompliance with prescribed medications.” (Id.) Dr. Wise further stated her
belief that Plaintiff “wanted to be taken care of,” that she had a “variety of excuses” for
why “she could not follow through on treatment recommendations and that working with
the claimant was a challenge in achieving any treatment goals.” (Tr. 29–30.)
The ALJ gave “little weight,” however, to two mental functioning questionnaires
completed by Dr. Wise in August 2013 and February 2015. (Tr. 30.) In both
questionnaires, Dr. Wise opined that Plaintiff has a number of mental limitations that
would affect her work-related abilities, and that she would likely miss more than four
days per month due to her mental impairments and symptoms. (Id.) The ALJ gave little
weight to these opinions because they are “inconsistent with her own treatment notes and
other medical source statements . . . in which she described the claimant as being
noncompliant with prescribed medication and reluctant to follow through with treatment
recommendations.” (Tr. 31.) In addition, the ALJ rejected Dr. Wise’s opinion because it
was not consistent with the medical evidence, overall record, conservative course of
treatment, mental status examinations and observations, Plaintiff’s daily functioning, and

12

the expert opinions of Dr. Butler and the State Agency mental health consultants. (Id.) 7
For the same reasons, the ALJ gave little weight to Dr. Wise’s statement in an April 2015
questionnaire that Plaintiff’s limitations likely existed in January 2011 when she first
started treating Plaintiff for her mental impairments. (Id.)
The ALJ then addressed statements submitted by Plaintiff’s boyfriend and her
sister. (Id.) The ALJ gave these statements some weight, but rejected them to the extent
they were inconsistent with the objective medical evidence, course of treatment, mental
status examinations and observations, and Plaintiff’s reported daily activities. (Id.)
Moreover, the ALJ stated that the statements might be influenced by their relationships
and loyalties to Plaintiff. (Id.) Finally, the ALJ noted that Plaintiff’s failure to seek
employment since losing her last job “reflects negatively on the overall credibility of the
claimant’s allegations regarding her subjective complaints of complete disability.” (Id.)
At step four, the ALJ ultimately determined, based on all of the above, that
Plaintiff is unable to perform any past relevant work. (Tr. 32.) Relying on the testimony
of a vocational expert, the ALJ then found at step five that there are a significant number
of jobs in the national economy that Plaintiff can perform, and as a result, Plaintiff is not
disabled within the meaning of the Social Security Act. (Tr. 32–33.)

7

The ALJ gave “some weight” to the opinions of the State Agency mental health
consultants, who found that Plaintiff had moderate restrictions in activities of daily living
and in maintaining concentration, persistence or pace, but gave less weight to their
opinions that Plaintiff only had mild limitations in maintaining social function. (Tr. 29.)
The ALJ stated that Plaintiff was “further limited in social functioning due to the
claimant’s testimony and the testimony and opinions of Dr. Butler, whose opinions have
been given great weight here.” (Id.)
13

DISCUSSION
I.

Standard of Review
Congress has established the standards by which Social Security disability

insurance benefits may be awarded. The SSA must find a claimant disabled if the
claimant is unable “to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A). The claimant’s impairments must be “of such
severity that [s]he is not only unable to do [her] previous work but cannot, considering
[her] 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)(2)(A). The claimant
bears the burden of proving that she is entitled to disability insurance benefits under the
Social Security Act. See 20 C.F.R. § 404.1512(a). Once the claimant has demonstrated
that she cannot perform past work due to a disability, “the burden of proof shifts to the
Commissioner to prove, first that the claimant retains the [RFC] to do other kinds of
work, and, second that other work exists in substantial numbers in the national economy
that the claimant is able to do.” Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000)
(citations omitted).
The Court has the authority to review the Commissioner’s final decision denying
disability benefits to Plaintiff. 42 U.S.C. § 405(g); Kluesner v. Astrue, 607 F.3d 533, 536
(8th Cir. 2010). On review, the Court must determine whether the ALJ’s decision to deny
benefits is based on legal error, and whether the findings of fact are supported by
14

substantial evidence in the record as a whole. Wildman v. Astrue, 596 F.3d 959, 963 (8th
Cir. 2010); see also Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) (“We will uphold
the Commissioner’s decision to deny an applicant disability benefits if the decision is not
based on legal error and if there is substantial evidence in the record as a whole to
support the conclusion that the claimant was not disabled.”). “Substantial evidence is less
than a preponderance, but enough that a reasonable mind might accept as adequate to
support a conclusion.” Lewis v. Barnhart, 353 F.3d 642, 645 (8th Cir. 2003). This
standard is “something less than the weight of the evidence and it allows for the
possibility of drawing two inconsistent conclusions, thus it embodies a zone of choice
within which the Secretary may decide to grant or deny benefits without being subject to
reversal on appeal.” Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994). The Court
thus considers evidence that supports the Commissioner’s decision and evidence that
detracts from it. Kluesner, 607 F.3d at 536. The Court must “search the record for
evidence contradicting the [Commissioner’s] decision and give that evidence appropriate
weight when determining whether the overall evidence in support is substantial.” Baldwin
v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003). If, after review, the record as a whole
supports the Commissioner’s findings, the Commissioner’s decision must be upheld,
even if the record also supports the opposite conclusion. Finch v. Astrue, 547 F.3d 933,
935 (8th Cir. 2008); Goff v. Barnhart 421 F.3d 785, 789 (8th Cir. 2005).
II.

Analysis of the ALJ’s Decision
Plaintiff argues that the ALJ erred at step three when he failed to evaluate whether

her agoraphobia met the criteria for the paragraph C criteria of Listing 12.06. (Pl.’s Mem.
15

23–26). At the time of the ALJ’s decision, 8 the paragraph C criteria required a showing
that the claimant be completely unable to function independently outside of the home.
(Pl.’s Mem. 23–26.) Plaintiff also argues that the ALJ erred when he did not account for
Plaintiff’s expected absences from work in his RFC. (Id. at 26–28.) Finally, Plaintiff
argues that the ALJ erred when he discounted Plaintiff’s credibility due to her failure to
follow prescribed treatment, failed to analyze whether the prescribed treatment would
restore Plaintiff’s capacity to work, and did not give proper notice about these issues.
(Pl.’s Mem. 28–36.) Defendant argues that there is substantial evidence to support the
ALJ’s step three finding, his RFC finding, and that the ALJ properly considered
Plaintiff’s noncompliance with treatment. (Def.’s Mem. 5–18.)
A.

Plaintiff Meets the Paragraph C Criteria of Listing 12.06

At the time of the ALJ’s decision, Listing 12.06 (Anxiety Related Disorders)
provided as follows:
12.06 Anxiety Related Disorders: In these disorders anxiety is either the
predominant disturbance or it is experienced if the individual attempts to
master symptoms; for example, confronting the dreaded object or situation
in a phobic disorder or resisting the obsessions or compulsions in obsessive
compulsive disorders.

8

The criteria have been amended, but the Court applies the regulation in effect at
the time of the ALJ’s decision. See Revised Medical Criteria for Evaluating Mental
Disorders, 81 Fed. Reg. 66138 n.1 (Sept. 26, 2016) (“We expect that Federal courts will
review our final decisions using the rules that were in effect at the time we issued the
decisions.”); see also Fleming v. Barnhart, 284 F. Supp. 2d 256, 267 (D. Md. 2003)
(finding that the regulation in effect at the time of the ALJ’s decision is the one that
applies).
16

The required level of severity for these disorders is met when the
requirements in both A and B are satisfied, or when the requirements in
both A and C are satisfied.
A. Medically documented findings of at least one of the following:
1. Generalized persistent anxiety accompanied by three out of four
of the following signs or symptoms:
a. Motor tension; or
b. Autonomic hyperactivity; or
c. Apprehensive expectation; or
d. Vigilance and scanning;
or
2. A persistent irrational fear of a specific object, activity, or
situation which results in a compelling desire to avoid the dreaded
object, activity, or situation; or
3. Recurrent severe panic attacks manifested by a sudden
unpredictable onset of intense apprehension, fear, terror and sense of
impending doom occurring on the average of at least once a week; or
4. Recurrent obsessions or compulsions which are a source of
marked distress; or
5. Recurrent and intrusive recollections of a traumatic experience,
which are a source of marked distress;
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or
pace; or
17

4. Repeated episodes of decompensation, each of extended duration.
OR
C. Resulting in complete inability to function independently outside the
area of one's home.
20 C.F.R. Pt. 404, Subpt. P, App 1, § 12.04(C) (effective January 2, 2015 to May 17,
2015).
As noted above, the ALJ found that Plaintiff did not meet the paragraph B criteria
of Listings 12.04 and 12.06. (Tr. 20–22.) The ALJ also found that Plaintiff did not meet
the paragraph C criteria, but only for Listing 12.04; the ALJ did not mention or discuss
whether Plaintiff is “completely” unable to “function independently outside the area of”
her home. Because the record clearly demonstrates that Plaintiff is unable to function
independently outside the area of her home due to her anxiety-related agoraphobia, this
was an error requiring remand for an immediate award of benefits. 9
As Plaintiff testified, her “main difficulty” is “[l]eaving the home, being anywhere
without one of my safety trusted people.” (Tr. 56.) The record is replete with examples
supporting this assertion. For example, the only way Plaintiff can visit her father in his
assisted living facility, which is only eight doors away from her home, is if she is
accompanied by her boyfriend Ben, her sister, or her daughter. (Tr. 61.) Plaintiff also
testified about her inability to attend her daughter’s concert at Orchestra Hall, an event

9

The parties appear to agree that Plaintiff meets the paragraph A criteria, and they
are not at issue in this appeal. The ALJ discussed the paragraph A criteria after step three,
when he addressed Plaintiff’s RFC. (Tr. 24.)
18

that she predicted would “probably haunt [her] forever.” (Tr. 57.) Aside from her
testimony at the disability hearing, Plaintiff also submitted a detailed journal of her daily
activities from February 11 through March 24, 2015. (Tr. 248–57, 259–69.) In one
instance, Plaintiff describes “forcing” herself to go to Target with Ben. (Tr. 252–53.)
Plaintiff waited until the store was almost closed to avoid crowds and long waiting lines,
and employed the “strategy” planned from the night before of staying “in the aisle that
runs along outside walls and Ben went in to get what was needed from the aisles.”
(Tr. 253.) Plaintiff then spent the next day in bed because she was “exhausted” from the
Target trip. (Id.)
Plaintiff’s accounts are corroborated by the statements submitted by her boyfriend
and her sister. Plaintiff’s boyfriend wrote:
There are numerous areas of her life that have been affected. She can no
longer walk our dog, which she used to love doing. Special plans need to be
made for even the most ordinary events. Driving has become a thing of the
past, any routines of everyday life must include another person to drive.
Going to the store, doctor appointments, visiting family, including helping
take care of her dad . . .
(Tr. 272.) Similarly, Plaintiff’s sister wrote:
My sister used to love walking her dog. I am sure she would love to
continue to do so but I know she cannot because of her anxiety. She relies
on others to drive her to the grocery store, doctor’s appointment etc. She
cannot function in day to day activities such as buying food and taking care
of her health without the help of family and/or friends.
(Tr. 273.)
The ALJ, as noted above, found Plaintiff’s “comprehensive allegations of
disability due to her various mental impairments . . . not completely credible.” (Tr. 28.)
19

The ALJ did not, however, question the veracity of Plaintiff’s testimony regarding how
difficult it was for her to leave her home by herself, and the evidence cited in his opinion
does not demonstrate that Plaintiff is able to function independently outside the area of
her home. Instead, the evidence cited by the ALJ largely supports the contrary
conclusion. (See Tr. 21, 25, 29.) Even in the context of stating that Plaintiff was “more
active than alleged,” the ALJ cited evidence which demonstrates that Plaintiff is
essentially homebound. (Tr. 29 (stating Plaintiff “did household chores such as cooking,
making microwavable meals, cleaning, laundry and changing light bulbs, attended to her
personal care, shopped by computer and in stores after hours, visited her aging father at
his assisted living facility once a week accompanied by her sister or significant other,
worked on crafts such as sewing and painting, gardened, read, played video games and
watched television”) (emphasis added).)
The ALJ also relied heavily on the opinion of Dr. Butler. Much like the ALJ,
however, Dr. Butler did not doubt Plaintiff’s testimony about her difficulties in leaving
home without her “safety people.” Instead, Dr. Butler acknowledged that “the record
does reflect . . . the difficulties she has spoken to,” and “clearly the record describes
somebody who is not functioning well and has difficulty being outside of their home and
functioning independently.” (Tr. 73 (emphasis added).)
For the foregoing reasons, the ALJ erred when he failed to address whether
Plaintiff met the paragraph C criteria of Listing 12.06, and the evidence of record
convincingly demonstrates that Plaintiff’s impairments resulted in a complete inability to
function independently outside the area of one’s home.
20

B.

The ALJ’s RFC Failed to Account for Plaintiff’s Expected
Absenteeism

Even if it could be argued that Plaintiff does not meet or equal Listing 12.06––that
is, if Plaintiff is not completely unable to function independently outside the area of her
home––Plaintiff is still entitled to an immediate award of benefits because of the number
of absences she is expected to incur in a given month due to her severe impairments.
The ALJ limited Plaintiff to work involving unskilled to semi-skilled tasks, no
more than infrequent contacts and superficial contacts with others in a work setting, and
no serving the public as a primary part of her job tasks. (Tr. 22.) However, the ALJ
rejected Dr. Wise’s opinion that Plaintiff would likely miss more than four days per
month on the grounds that it was “inconsistent with her own treatment notes and other
medical source statement . . . in which she described the claimant as being noncompliant
with prescribed medication and reluctant to follow through with treatment
recommendations.” (Tr. 31.) The ALJ also rejected Dr. Wise’s opinion because it was
“not consistent with the medical evidence, overall record, conservative course of
treatment, mental status examinations and observations, the claimant’s daily functioning
and the expert opinions of Dr. Butler and the State Agency mental health consultants,
which have been given weight in finding the claimant not disabled.” (Id.) These are not
good reasons for rejecting Dr. Wise’s opinion about Plaintiff’s expected absences. See
Reece v. Colvin, 834 F.3d 904, 909 (8th Cir. 2016) (“Whether the ALJ gives the opinion
of a treating physician great or little weight, the ALJ must give good reasons for doing
so.”).
21

First, the ALJ did not consider why Plaintiff may have been reluctant to take
prescribed medication or to follow treatment recommendations. Federal courts including
the Eighth Circuit “have recognized a mentally ill person’s noncompliance with
psychiatric medications can be, and usually is, the result of the mental impairment itself
and, therefore, [is] neither willful nor without a justifiable excuse.” Pate-Fires v. Astrue,
564 F.3d 935, 945 (8th Cir. 2009). Even if Plaintiff could be faulted for not taking
prescribed medicine, Dr. Butler testified that “the record does not say that any
medications she has taken has fully taken those symptoms away.” (Tr. 75.) 10 Aside from
medications, Dr. Butler testified that the treatment for anxiety is to “face the things
you’re anxious about and to do that in small doses.” (Tr. 73.) This creates a “Catch-22”
for someone like Plaintiff, who is deathly afraid of trying such things in the first instance.
Put another way, a “psychosomatic anxiety-related disorder such as agoraphobia may
defy any generally accepted prescribed treatment requiring the will of the individual
claimant to recover.” Zeitz v. Sec. of Health & Human Servs., 726 F. Supp. 343, 349 (D.
Mass. 1989). 11

10

Plaintiff’s lawyer asked Dr. Butler if it was “more likely than not that she would
incur monthly absences at work even with consistent medication? The record does show
that she’s had treatment with medications, which has not completely reduced her
symptoms. So if she was completely consistent with medications would her anxiety
symptoms likely cause her to incur monthly absences from work?” (Tr. 76.) Dr. Butler
was “unable to answer that question.” (Id.)
11

Additionally, as discussed in the following section, the Commissioner cannot rely
on Plaintiff’s alleged failure to follow treatment recommendations because Plaintiff did
not have notice that this would be an issue at the disability hearing.
22

Second, the ALJ was wrong in stating that Dr. Wise’s opinion is inconsistent with
the overall record. As discussed in some detail above, the record demonstrates that
Plaintiff, at minimum, is severely impaired in her ability to leave the home by herself. If
Plaintiff can barely handle going to the store during off hours and with her boyfriend,
then she will not be able to handle a regular work schedule. This evidence corroborates
Dr. Wise’s ultimate concern that Plaintiff “could not get to a job” (Tr. 350), and that “she
would not get there” (in response to the question, “Please describe any other reasons not
covered above why your patient would have difficulty working at a regular full-time job
on a sustained basis”). (Tr. 344.) Dr. Butler, whose opinion was given “great weight” by
the ALJ, conceded that more than four absences per month is a “reasonable estimate”
based on her review of the record. (Tr. 75–76.)
For the foregoing reasons, the ALJ’s RFC should have included the limitation that
Plaintiff is expected to miss at least four days of work per month. At the hearing, the
vocational expert testified that the customary employer tolerance for absences in the
unskilled workplace is no more than two absences per month, and if someone was
expected to be absent more than four days per month, that person would not be able to
perform the identified jobs. (Tr. 80.) The vocational expert also testified that an
individual who needed to have “safety people” present would not be able to perform
these jobs. (Id.) Therefore, the Commissioner failed to meet its burden of demonstrating
that Plaintiff can perform a significant number of jobs in the national economy, and
Plaintiff is entitled to an immediate award of benefits.

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C.

The ALJ Erred When He Discounted Plaintiff’s Credibility Due to Her
Alleged Failure to Follow Prescribed Treatment

The primary justification for the ALJ’s denial of benefits is his determination that
Plaintiff’s “unwillingness to follow prescribed medical treatment seriously reduces the
credibility of [her] allegation that she is disabled.” (Tr. 27.) This was an errant
conclusion.
Failure to follow a prescribed course of medical treatment without good reason
may be a sufficient reason to deny benefits. See Burnside v. Apfel, 223 F.3d 840, 843 (8th
Cir. 2000). According to the regulatory guidance,
[a]n individual who would otherwise be found to be under a disability, but
who fails without justifiable cause to follow treatment prescribed by a
treating source which the Social Security Administration (SSA) determines
can be expected to restore the individual’s ability to work, cannot by virtue
of such ‘failure’ be found to be under a disability.
SSR 82-59, Titles II and XVI: Failure to Follow Prescribed Treatment, 1982 WL 31384,
at *1 (S.S.A.). However, the SSA may determine that an individual “failed” to follow
treatment only where all of the following conditions exist:
1.
The evidence establishes that the individual’s impairment precludes
engaging in any substantial gainful activity (SGA) . . . ; and
2.
The impairment has lasted or is expected to last for 12 continuous
months from onset of disability or is expected to result in death; and
3.
Treatment which is clearly expected to restore capacity to engage in
any SGA (or gainful activity, as appropriate) has been prescribed by a
treating source; and
4.
The evidence of record discloses that there has been refusal to follow
prescribed treatment.
(Id.)
24

The record does not show that Plaintiff was prescribed treatment that is “clearly
expected to restore capacity to engage in any SGA.” To the contrary, as noted above,
Dr. Butler testified that “the record does not say that any medications she has taken has
fully taken those symptoms away.” (Tr. 75.) Also, while Dr. Butler referenced the
suggested treatment for anxiety and agoraphobia––“to face the things that you’re anxious
about and to do that in small doses” (Tr. 73)––there is no evidence in the record that
Plaintiff was actually prescribed such treatment. Instead, as Dr. Wise explained, Plaintiff
was not “receptive to ideas” and had “a variety of reasons why she cannot possibly
follow through on any suggestions. Everything appears to be an effort which she cannot
muster.” (Tr. 327.) Therefore, even if prescribed, the evidence supports that Plaintiff’s
mental health issues provide a “justifiable excuse.” Pate-Fires, 564 F.3d at 945; see also
SSR 82-59, 1982 WL 31384, at *1 (“Where SSA makes a determination of ‘failure,’ a
determination must also be made as to whether or not failure to follow prescribed
treatment is justifiable.”).
Finally, SSR 82-59 “mandates that the individual must be informed of the effect of
compliance on the application for benefits,” and “[a]s a procedural matter, if the
commissioner fails to provide the claimant with an opportunity to address the issue, he
loses the ability to assert it as a reason for denying disability benefits.” Bailey v. Colvin,
121 F. Supp. 2d 849, 859 (S.D. Iowa 2015). The ALJ did not provide notice that
noncompliance would be an issue at Plaintiff’s hearing. (Tr. 139–40, 145.). If, as here,
“the issue of compliance with medical treatment arises for the first time at the hearing
level or at the Appeals Council level, ‘and it has been 12 months after onset, a favorable
25

decision will be issued, and the case will be referred for development of failure to follow
prescribed treatment.’” Id. (quoting SSR 82-59). Since Plaintiff’s 2015 hearing occurred
well after her alleged onset date of October 1, 2008, Plaintiff is entitled to a favorable
decision for the reasons already stated, and the Commissioner cannot rely on Plaintiff’s
alleged noncompliance with treatment recommendations to justify the denial of benefits.
Id. at 859–60 (“It may very well be that Plaintiff’s failure to follow prescribed medical
treatment is a reason to terminate her benefits, but she must be given notice of that
inquiry, the opportunity to present her reasons for that failure to follow treatment if it
exists, and the opportunity to comply with the treatment recommendations of her treating
physicians(s).”).
D.

Plaintiff is Entitled to an Immediate Award of Benefits

The typical remedy when the ALJ’s disability determination is not supported by
substantial evidence in the record as a whole is to remand for further administrative
proceedings. See Fishbaugher v. Astrue, 878 F. Supp. 2d 939, 955 (D. Minn. 2012)
(citing Cox v. Apfel, 160 F.3d 1203, 1210 (8th Cir. 1998)). Reversal and remand for an
immediate award of benefits, however, is the appropriate remedy where the record is
fully developed and overwhelmingly supports a finding of disability. Id. (citing PateFires, 564 F.3d at 947).
For the reasons already stated, the record overwhelmingly supports the following
conclusions: (1) Plaintiff meets the paragraph C criteria for Listing 12.06 due to her
inability to function independently outside the area of her home; and (2) Plaintiff cannot
perform substantial gainful activity due to the large number of expected absences on a
26

monthly basis. Therefore, reversal and remand for an immediate award of benefits is the
correct remedy in this case.
ORDER
Based on the foregoing, and all the files, records, and submissions herein, IT IS
HEREBY ORDERED that:
1.

Plaintiff’s Motion for Summary Judgment (Doc. No. 13) is GRANTED;

2.

Defendant’s Motion for Summary Judgment (Doc. No. 16) is DENIED;

3.

The Commissioner’s denial of benefits is REVERSED, and this matter is

and

REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for calculation and award
of benefits with a disability onset date of October 1, 2008.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Date: August 31, 2017.

s/ Becky R. Thorson_________________
BECKY R. THORSON
United States Magistrate Judge

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