Weller v. Colvin
MEMORANDUM AND ORDER re: 13 SOCIAL SECURITY BRIEF filed by Plaintiff Leighanne N. Weller, 19 SOCIAL SECURITY REPLY BRIEF re 13 SOCIAL SECURITY BRIEF, 18 SOCIAL SECURITY CROSS BRIEF re 13 SOCIAL SECURITY BRIEF filed by Plaintiff Leigh anne N. Weller, 18 SOCIAL SECURITY CROSS BRIEF re 13 SOCIAL SECURITY BRIEF filed by Defendant Carolyn W. Colvin. IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and the matter is remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings. Signed by District Judge Carol E. Jackson on 9/9/16. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
LEIGHANNE N. WELLER,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Case No. 1:15-CV-134-CEJ
MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
On October 6, 2011, plaintiff Leighanne N. Weller filed an application for
supplemental security income, Title XVI, 42 U.S.C. §§ 1381, et seq.,1 with an
alleged onset date of March 1, 2005. (Tr. 242–47) After plaintiff’s application was
denied on initial consideration, (Tr. 102–03, 110–14), she requested a hearing from
an Administrative Law Judge (ALJ). (Tr. 115–17) Plaintiff and counsel appeared for
hearings on May 16, 2013, and January 13, 2014. (Tr. 31–92) The ALJ issued a
decision denying plaintiff’s application on February 6, 2014.
The record also contains several applications for disability insurance benefits, Title II, 42 U.S.C.
§§ 401, et seq., including one filed on October 6, 2011. (Tr. 248–58) In the complaint and in her
briefs, plaintiff references those applications and appears to also seek judicial review of the denials of
disability insurance benefits. [Docs. ##1, 13, 19] The ALJ’s decision addressed and denied only
plaintiff’s October 6, 2011, application for supplemental security income.
Commissioner maintains that plaintiff did not here exhaust her administrative remedies with respect to
any other claim. [Doc. #9 at 1] Plaintiff does not challenge that assertion. Consequently, the Court
has jurisdiction to review only the decision denying the October 6, 2011, application for supplemental
security income. See Sipp v. Astrue, 641 F.3d 975, 979–80 (8th Cir. 2011). Of course, the Court
references evidence antedating and postdating that application in reviewing the record as a whole for
substantial evidence, including records submitted here pertaining to other applications. See, e.g.,
Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997).
requested the Appeals Council reverse the ALJ’s decision and remand for a new
(Tr. 6–7, 343–44)
The Appeals Council denied plaintiff’s request for
review on June 4, 2015. (Tr. 1–4) Accordingly, the ALJ’s decision stands as the
Commissioner’s final decision.
Evidence Before the ALJ
Only plaintiff’s allegedly disabling mental impairments are at issue in this
Consequently, the discussion below primarily addresses the evidence of
plaintiff’s psychological conditions and their attendant symptoms.
A. Disability Application Documents
Plaintiff was born on July 2, 1982.
She graduated from high
school, and she was never placed in special education classes or given an
Individualized Education Program (IEP).
After graduating from high
school, plaintiff began taking college courses, but she “had to drop out due to
sickness while she was pregnant.” (Tr. 702)
Plaintiff was married at the time of her application, (Tr. 250), but divorced by
Plaintiff had two dependent children at the time of her
Following her separation and subsequent divorce, her
children no longer live with her.
Though plaintiff has never asserted
trouble managing her own finances, she does not presently have a bank account.
On August 5, 2008, plaintiff completed a Function Report.
was then living with friends and her children. Id. Her daily activities consisted of
dressing herself and her children, cooking, doing laundry, cleaning, bathing herself
and her children, playing with them, and sleeping.
Plaintiff reported her
conditions did not affect her sleep or personal care, though she was “clumsy.” (Tr.
She also did not need reminders to take medications or to care for her
personal needs, or to perform her household chores. (Tr. 283)
Plaintiff left her apartment every day without assistance, and was able to
drive a car. (Tr. 284) She had no difficulty shopping. Id. Her hobbies included
watching television, listening to music, and visiting with family and friends.
Plaintiff induced no problems in her familial relationships or in her
relationships with friends, neighbors, and others.
She visited and
spoke with her friends or family daily; her ability to socialize had not been affected
by the onset of her allegedly disabling conditions. Id.
Plaintiff reported that her coordination, concentration, and memory were
affected by her mental impairments. (Tr. 286) However, plaintiff also stated that
she experienced no challenges completing tasks, understanding, or following
instructions. Id. She also said that she does not finish what she starts. Id. She
could follow written instructions well, and had a fair ability to follow spoken
instructions. Id. Plaintiff reported that she relates well to authority figures. (Tr.
Though plaintiff wrote that she experiences unquantified nervousness and
anxiety, she also reported a fair ability to handle both stress and changes to her
On August 12, 2008, Ginger Hanselman, a medical consultant, completed a
Physical Residual Functional Capacity Assessment of plaintiff.
Plaintiff’s primary diagnosis was “[h]eadaches,” with other alleged impairments of a
neurological disorder and fatigue.
Plaintiff specifically alleged a
“neurological disorder, headaches, anxiety attacks, and fatigue.” (Tr. 97) At that
time, plaintiff had been treated by an unidentified neurologist, who diagnosed
plaintiff with “tension headaches” and had prescribed her Elavil (Amitriptyline), an
According to Henselman’s report, plaintiff claimed that the “headaches occur
four times a week and can last all day.”
examination revealed “no deficits.”
Her MRI was “abnormal,” but
Plaintiff’s “partially credible” symptoms
included the headaches and feeling tired and nervous. (Tr. 99) She provided all of
the care for her children, cooked, cleaned, shopped, socialized, and managed her
own finances. Id. Though plaintiff’s coordination was not “very good,” she alleged
“no memory problems.”
The Social Security Administration listed plaintiff’s
diagnosis as, “Other Disorders of the Nervous System.” (Tr. 100)
Plaintiff completed another Disability Report sometime in early October 2011,
following the instant application for supplemental security income. (Tr. 292) She
was experiencing a neurological disorder, headaches, anxiety attacks, fatigue, a
back condition, and depression, the conditions for which she is presently requesting
(Tr. 103, 110, 296)
Plaintiff was interviewed by an employee of the
Social Security Administration, who remarked that plaintiff appeared to have
difficulty answering questions. (Tr. 293) For example, plaintiff “guessed at a lot of
dates.” (Tr. 294) At the same time, however, she did not appear to have difficulty
understanding, concentrating, or talking. (Tr. 293)
At that time, plaintiff had prescriptions for Ambien (Zolpidem), an antiinsomnia medication; Hydrocodone, an analgesic; Trazadone, a sleep aid; Xanax
(Alprazolam), an anti-anxiety and anti-depressant medication; and vitamin B-12
injections. (Tr. 299) She was being treated by Jim Pang Jr., M.D. (Tr. 300–01)
She occasionally also sought treatment from Dennis Reed, M.D., for “bad migraines
or whenever” she could not “get in to see” other physicians.
additionally recalled having been treated by licensed clinical social worker John
Hunter, M.A., L.P.C., from 2008 until 2011 for “mental problems” and “threatening
suicide.” (Tr. 304) Following a suicide attempt in 2008, plaintiff indicated she had
begun receiving her present medications, with additional counseling. (Tr. 304–05)
Plaintiff remained able to drive. (Tr. 309) She completed a Function Report
in which she wrote that she lived with friends. (Tr. 311) She would awake at 8:00
a.m., eat breakfast, shower, watch television, and then go to bed at 9:00 p.m. Id.
Yet, she claimed to suffer from insomnia. (Tr. 312) When asked to describe how
her conditions affect her ability to function. plaintiff wrote: “Not sure [be]cause I’ve
had problems since I was 8 [years old].”
In the October 2011 Function Report plaintiff reported that she had no
difficulty with personal care and grooming. (Tr. 312–13)
She also did not need
reminders to groom herself or take her medications. Id. Plaintiff also prepared her
own meals, cleaned, and did her own laundry. (Tr. 313) However, she sometimes
required a “push to do” those activities, because she does not “always feel good.”
Id. She also described herself as “clumsy.” (Tr. 314)
Plaintiff had no problems managing her own finances. Id. Her daily routine
included socializing with friends, which she retained the capacity to do without
difficulty. (Tr. 315) Plaintiff also reported that she found it difficult to get along
with family, friends, neighbors, and others whenever “people have a problem
getting along with” her.
She attributed this to being “too nice and
believe[ing] people too eas[ily].” Id.
In that same report, plaintiff was asked whether she had any memory
deficits or challenges completing tasks. Id. She identified none. Id. Nor did she
mention any difficulty understanding or following instructions. Id. She related well
to authority figures.
She also attested to having some unspecified difficulty
maintain concentration, though she had a good ability to follow written instructions
and a fair ability to follow spoken instructions.
(Tr. 316–17) Plaintiff wrote that
she does not handle stress or changes in her routine very well.
contrast to the 2008 Function Report, in which plaintiff reported experiencing
nervousness and anxiety, she did not mention these conditions when asked in the
2011 Function Report. Id.
According to plaintiff, on December 1, 2011, her conditions became worse
because she could not “go to the doctors,” as she lacked funds or insurance, and
she therefore could not obtain her prescription medications.
December 13, 2011, the Social Security Administration determined plaintiff had a
primary diagnosis of discogenic and degenerative disorder of the back, with a
secondary diagnosis of migraines. (Tr. 102) In her February 16, 2012, request for
a hearing, plaintiff wrote that her “back hurts all the time” and she gets very
“nervous around people and situations.” (Tr. 115) Plaintiff subsequently completed
an undated Disability Report. (Tr. 321–26) Though she had worked for three days,
(Tr. 254–55), she had been fired for unspecified reasons on January 31, 2012. (Tr.
On July 1, 2013, plaintiff’s father, James C. Ramsey, filed an affidavit in
support of her claim.
According to Ramsey, plaintiff’s “emotions
fluctuate almost daily from being happy or even elated to being depressed[,] to
having feelings of low self esteem.” (Tr. 330) He also remarked that plaintiff is
“clumsy,” sometimes dropping objects, and she has trouble concentrating, with
additional unspecified “personality abnormalities.”
plaintiff is very childlike and can easily be persuaded. (Tr. 331)
B. May 16, 2013 Hearing
On May 16, 2013, an ALJ held a hearing, which plaintiff and her counsel
attended. (Tr. 31–43) At the hearing, plaintiff’s counsel characterized the medical
condition she had suffered at age 8 as a “traumatic brain injury.” (Tr. 34) As a
result of that injury, she received Social Security benefits from age 8 until
approximately age 23.
That injury stemmed from a routine appendectomy,
during which an anesthetic error caused her to suffer “brain damage,” resulting in
eight months of hospitalization to treat her physical and mental symptoms.
34–35) According to plaintiff’s counsel, her brain injury is a “permanent condition.”
(Tr. 36) Counsel also noted that plaintiff “does not explain” her condition well. Id.
Plaintiff’s counsel also maintained that none “of the treating sources that the
Social Security Administration” had examine plaintiff “even kn[e]w that she . . . has
[a] traumatic brain injury.”
The attorney stated that plaintiff’s treating
physicians were “not treating her for” a traumatic brain injury, but whether “they
know she has it or not is a different question.” Id. The ALJ responded that at least
some of plaintiff’s treating physicians must have been aware of plaintiff’s condition,
because it is documented in her medical records.
Counsel requested an
evaluation of the condition, and the ALJ ordered a psychological consultative
examination, with cognitive testing. (Tr. 37, 39) The ALJ recessed the hearing to
accommodate that testing and to allow further development of the evidentiary
record. (Tr. 36–41)
C. January 13, 2014 Hearing
On January 13, 2014, a different ALJ held a second hearing, which plaintiff
and her counsel also attended. (Tr. 44–92) Plaintiff had been under the care of
Pavin Palepu, M.D., a psychiatrist, since May 2013. (Tr. 47) Because Dr. Palepu
had not yet responded to counsel’s request for an assessment of plaintiff’s
functioning, counsel asked that the record be kept open “for
approximately ten days to see if” counsel could obtain that report.
But Dr. Palepu did not submit his report, a Mental Impairment
Questionnaire, until February 21, after the ALJ’s decision was issued. (Tr. 783–88)
Dr. Karl Manders, a medical expert, testified at the hearing based on his
review of plaintiff’s medical records; he had not treated or examined plaintiff. (Tr.
Dr. Manders opined that plaintiff has “significant problems from a
psychological area and possibly for a cognitive area.”
According to Dr.
Manders, plaintiff’s brain injury could be categorized as a “stroke.”
“unbelievable that she recovered as well as she did, but it appear[ed] that[,] from a
contemporary standpoint[,] her primary problem is psychiatric, and is not on a
(Tr. 51, 54)
Dr. Manders also remarked that plaintiff “does
have apparently, or did have[,] some residual of her neurological deficit” from the
stroke. (Tr. 52)
From “a functional standpoint,” however, plaintiff has “pretty well recovered
from” that neurological deficit.
Plaintiff’s medical records, Dr. Manders
explained, showed “at times that she had some neurological abnormalities, but they
did not translate into an impairment or a listing.” Id.
Dr. Manders opined as to
“psychological.” (Tr. 53)
Plaintiff’s headaches, according to Dr. Manders, would be expected to be,
“many times[,] in a situation like this,” based on “psychological problems.”
53–54) Dr. Manders also noted that a November 28, 2011, CT scan of plaintiff’s
brain showed “prominent bilateral basal ganglia paravascular spaces versus
encephalomalacia,” which is the “shrinkage of the brain” that is “secondary to the
stroke.” (Tr. 56) Dr. Manders remarked that plaintiff’s brain shrinkage is “not in
itself a cause of” her headaches, but is a “significant neurological finding[,]
However, plaintiff had “really remarkable recovery” from the
stroke, considering that, shortly after the stroke “she occasionally would fall down
going down steps, and occasionally” would “lose her train of thought.” Id. As Dr.
Manders explained, “because of the stroke,” plaintiff’s “brain shr[ank] a little bit”
due to “some damage to the tissue,” and “the shrinkage of the brain is a normal
finding after the brain has been injured.” Id.
Based on those findings, Dr. Manders was asked to explain the long-term
symptoms of plaintiff’s brain injury. (Tr. 57) He opined that plaintiff’s symptoms
included “occasionally” falling, tripping, or losing “her train of thought.”
However, the records showed “she was a C plus average student or a B [student],
so intellectually she did pretty darn well.” Id. According to the records, plaintiff
also “complained of dizzy spells” and “had a little trouble with speech,” specifically
“dysarthria,” which is a “little slowness” in her speech pattern. Id.
Further, plaintiff suffered from a “slight weakness on the right side” of her
body, with “dystonia,” an “abnormal movement in the right foot and ankle.”
Dr. Manders inquired of the ALJ whether plaintiff had a neuropsychological
evaluation, because, he testified, an MRI or a CAT scan would not necessarily show
the damage to plaintiff’s brain. (Tr. 57–58) Specifically, such testing might show
“evidence of some difficulty secondary to the stroke,” but it would not “describe
how the brain is working.” Id. Consequently, whether plaintiff’s “present difficulty”
was “related to that” brain injury “would have to be determined by a neuro
psychologist doing extensive neuro consultative work-ups,” from which it could be
“discover[ed] whether the problem is” on a “organic or structural basis[,] versus
more of a psychological one.” (Tr. 58)
Dr. Charles D. Auvenshine, a medical expert, also testified at the hearing.
Id. As with Dr. Manders, Dr. Auvenshine had never examined or treated plaintiff.
According to Dr. Auvenshine, plaintiff suffers from five categories of
“mental impairments” recognized by the Social Security Administration: 12.02
organic; 12.04, affective disorder; an anxiety-related disorder; 12.08, personality
disorder; and 12.09, substance addiction disorder. (Tr. 60) Dr. Auvenshine opined
that plaintiff’s mental impairments taken “individually” do not meet a listing.
He did not opine as to the cumulative effects of those five conditions.
As to the symptoms of those conditions, Dr. Auvenshine highlighted that
plaintiff had on one occasion denied “agitation anxiety and depression,” suicidal
ideation, and judgment abnormality, and that in that instance memory impairments
were “not detected.” (Tr. 60–61) However, the report Dr. Auvenshine referenced
is from October 21, 2002, before plaintiff’s alleged onset date.
addition, that report details plaintiff’s treatment at a clinic for a urinary tract
infection, not treatment by a psychiatrist. Id.
Further, in that same report, the treating physician, William Bryant, M.D.,
indicated that plaintiff denied having symptoms of any kind.
In the same
report in which Dr. Bryant wrote that plaintiff suffered from a urinary tract
infection, he also wrote that plaintiff did not have a recent infection. Id. Dr. Bryant
also noted that plaintiff denied nocturia (waking at night to urinate), noting at the
same time that plaintiff’s “chief complaint” included “nocturia.”
Dr. Bryant wrote that plaintiff complained of “some nausea,” but he noted,
Even though Dr. Bryant had remarked just one month
earlier that plaintiff’s right leg is longer than her left leg, (Tr. 405), he wrote on
October 21 that he detected no such physical abnormality.
Auvenshine offered no testimony to explain his reliance on the report from 2002 as
proof that, beginning three years later in 2005, plaintiff suffered no serious mental
According to Dr. Auvenshine, plaintiff had remarked that her physical
impairments kept her from working because of her depression, but she also denied
any limitation “secondary to the depression.” (Tr. 61) To the contrary, however,
the exhibit Dr. Auvenshine referenced, which is a pre-hearing memorandum written
by plaintiff’s counsel, specifically notes plaintiff’s “long history of depression with
suicidal thoughts,” two in-patient psychiatric hospitalizations following suicidal
ideation, bipolar disorder, major depressive disorder, which plaintiff described as
“severe,” borderline personality disorder, and concentration difficulties. (Tr. 336–
Dr. Auvenshine did not clarify his testimony regarding the pre-hearing
Referring to medical records from January 1, 2005, onward, Dr. Auvenshine
noted that plaintiff had been “diagnosed with depression,” which her physicians
described as “severe” and “recurrent.”
(Tr. 61, 528–55)
As Dr. Auvenshine
admitted, (Tr. 61), those records show plaintiff also was diagnosed with
“generalized anxiety disorder,” “substance abuse,” and a “personality disorder,”
with “narcissistic histrionic traits.”
However, Dr. Auvenshine said,
during that same period plaintiff’s mental status was remarked to have been
normal on several occasions, with normal mental status examinations. (Tr. 61)
Dr. Auvenshine additionally examined the records of the neuropsychological
examination Stephen Jordan, Ph.D., performed on plaintiff on July 30, 2013. (Tr.
As Dr. Auvenshine noted, plaintiff was diagnosed with depression,
bipolar disorder, and substance abuse, which was in remission.
Though plaintiff had no Axis II or Axis III diagnoses, a “history of abusive
relationships” qualified as an Axis IV environmental factor affecting her conditions.
(Tr. 62) On Axis V, plaintiff’s Global Assessment of Functioning (GAF) was 65, and
a previous GAF was 76. Id.
Dr. Auvenshine testified that plaintiff’s medical records show she had
“overdosed” on medications on April 27, 2012, for which she had been admitted to
the hospital for psychiatric care until May 4, 2012. Id. Based on Dr. Auvenshine’s
“summary of” the
record,” plaintiff had not experienced
hallucinations, was “not psychotic,” and was “thought to be of average intelligence”
at the time of her hospitalization. Id.
Dr. Auvenshine opined that plaintiff’s “substance problem” with drugs and
alcohol was not material. Id. Additionally, Dr. Auvenshine opined that plaintiff’s
activities of daily living were mildly limited, her social limitations were mild, and her
concentration, persistence, and pace were mildly limited.
The doctor also
determined that the records showed plaintiff had experienced “no actual outright
episodes of decompensation.”
As just mentioned, however, Dr. Auvenshine
recognized that plaintiff had been placed in emergency, in-patient psychiatric care
for suicidal ideation.
To use his parlance, that hospitalization is an “outright
episode of decompensation.” Id. Dr. Auvenshine did not clarify that discrepancy in
Further, of course, Dr. Auvenshine had not reviewed Dr. Palepu’s assessment
of plaintiff’s mental conditions and symptoms, because that report had not yet been
submitted. (Tr. 63) In addition, Dr. Auvenshine admitted that he could not read
“some” unspecified records from plaintiff’s counseling sessions from April 27, 2012,
until the date of the hearing. Id. The ALJ did not inquire about Dr. Auvenshine’s
admission that certain unidentified records were not considered when he formed his
As plaintiff’s counsel then noted, her treatment records from December 28,
2013, show she was experiencing a “delusional thought process.” Id. In response,
Dr. Auvenshine testified that particular record was “marginal in terms of not being
able to read it.” (Tr. 63–64) He then went on to explain that he could see what
the attorney was asking about, because checkboxes on that form were marked for
both delusions and paranoia.
Dr. Auvenshine again did not explain the
discrepancy between his opinion testimony and the records he purportedly relied on
to form that opinion.
Plaintiff’s counsel additionally highlighted that records showing “some
delusional thought process” were “counter-indicative of what” Dr. Auvenshine had
Specifically, counsel inquired about the discrepancy
experienced “any psychotic episodes” and the noted delusional thought processes,
which “would show at least one instance” of such an episode. Id. Dr. Auvenshine
responded, “yes, and what I cited came from the record.” Id. But Dr. Auvenshine
then did not explain the inconsistency, and the ALJ did not inquire about it.
As Dr. Auvenshine admitted, the notation that plaintiff was delusional and
experiencing paranoia “was recorded by the examining specialist” who treated
plaintiff. Id. But, according to Dr. Auvenshine, there were “areas of suspiciousness
that would fall within the normal range,” which are “sometimes quoted as
Yet, Dr. Auvenshine did not explain whether he believed, or had
evidence to support the assertion, that was so in this instance.
Auvenshine admitted that he did not “know how severe this paranoia is or whether”
plaintiff was “marginally psychotic or maybe totally documented” as psychotic. Id.
Following Dr. Auvenshine’s concession that his opinion did not incorporate an
understanding of the severity of plaintiff’s paranoia, or whether she was marginally
or totally psychotic, the ALJ did not inquire further.
Plaintiff testified at the second hearing. (Tr. 65) She was at that time 31
years old, and divorced.
She was living with her boyfriend, while her
children lived with their father. (Tr. 67) She had no income. (Tr. 68)
Plaintiff last worked in 2008, at a fast food restaurant. (Tr. 70) She “quit”
that job after two days because it “was too hard taking those orders.”
testified that the job required her “to push buttons and stuff, and [she] got
confused real easy.” Id. At some point years ago, plaintiff testified, she had also
worked for a week and a half cleaning an elderly person’s home. Id. She had no
other work experience. Id. Her alleged onset date, March 1, 2005, is the same day
she last received childhood Social Security benefits. (Tr. 70–71)
Plaintiff had no difficulty reading or writing. (Tr. 69) However, she testified
that she is not a frequent reader and that she spends most of her leisure time
watching television and movies. (Tr. 73) As to her activities of daily living, plaintiff
stated that she wakes inconsistently between 6:00 a.m. and noon, and then
typically makes coffee and cereal or oatmeal. (Tr. 71) “On a good day,” she will
“do some light housework,” including placing dishes in the dishwasher or sweeping.
Id. But because she gets tired very easily, she has to “keep it pretty mild” and also
take naps during the day. Id. She also cooks, but not very often. Id. Plaintiff no
longer does her own laundry.
She avoids vacuuming and mopping
because it hurts her back. Id. She does her own grocery shopping and is able to
carry her bags. Id. The ALJ noted that in her application she had also reported
that she drove, prepared her own meals, did her own laundry, and managed her
own finances. (Tr. 73) Plaintiff testified that by the time of the second hearing she
no longer engaged in those activities. Id. However, she retains the ability to drive.
Plaintiff does “[n]ot really” have friends; she does not “mess with a lot of
people,” to avoid “trouble.”
She has discontinued contact with her former
friends, because she considers them a bad influence. (Tr. 74) Plaintiff described
her relationship with her boyfriend as, “pretty good.” (Tr. 72–73) She also relates
well to her children and her father, but not her mother. (Tr. 73) She is not active
in any civic organizations, but attends religious services occasionally. Id.
Plaintiff also admitted to using methamphetamine, crack cocaine, and
marijuana. (Tr. 74–75) By the hearing date, she testified, she had abstained from
all drugs for at least six months. (Tr. 75) She occasionally smokes cigarettes when
she is nervous, though she is attempting to quit. (Tr. 75–76) She testified that
she has never had a drinking problem, and no longer drinks alcohol. (Tr. 76)
Plaintiff had discontinued taking Ambien, Hydrocodone, Xanax, and vitamin
B-12 injections. Id. She was still using Trazodone to treat her sleep disorder. Id.
Plaintiff was also taking prescription Abilify (aripiprazole), an antipsychotic
(oxcarbazepine), a medication for bipolar disorder; and Vistaril (hydroxyzine), to
treat her anxiety.
Weight gain is a side effect of the medications,
according to plaintiff. (Tr. 78) Because of the weight gain, plaintiff ceases taking
her prescribed medications “about once a month.” Id. However, she consistently
resumes the medications because, after “a week or so,” she will not “feel like”
herself without them. Id.
As to her symptoms both on and off of those medications, plaintiff testified to
feeling depressed, which includes being “really sensitive” and experiencing frequent
She also testified to suffering from anxiety, including
experiencing anxiety or panic attacks. (Tr. 78–79) However, because she is taking
medication for those conditions, it had been “a while” since she had an attack. Id.
When an anxiety attack occurs, she seeks relief by breathing deeply and trying “to
get somewhere where [she] can be calm.” Id.
Plaintiff also described suffering from what she believes is bipolar disorder,
manifesting mood swings that “normally run from being really happy to being
really sad,” depending on the day.
auditory or visual hallucinations.
She admitted to not experiencing
Plaintiff testified to having difficulty
concentrating, and “maybe” having trouble getting her “thoughts together.”
Among other physical symptoms, plaintiff testified that she is “real clumsy” and will
“drop stuff a lot.” (Tr. 77)
approximately once every week or two weeks.
manifest in her temples and sometimes develop into migraines. For relief, plaintiff
will “lay down and get in a dark room or in the bathtub.” (Tr. 85) The headaches
last from a “couple hours” to a “couple days.” Id. Plaintiff had sought treatment
for the headaches, which, she testified, would not subside absent medical
But by the time of the hearing she was no longer receiving the
treatment. Id. Plaintiff was unsure about the medications she had acquired or been
prescribed for headaches, though she recalled at some point having taken
Phenergan (promethazine), an anti-nausea medication for migraines, and receiving
injections. (Tr. 85–86)
Plaintiff admitted she had used drugs as a teenager and then stopped for
about ten years, until 2011, when she was “mixed up with the wrong people,” her
She initially used methamphetamine and crack cocaine
“every day” after separating from her husband. (Tr. 81–83) But, she clarified, she
ceased daily use approximately five months later when she moved in with her
mother, at which point she “might go weeks without it,” but then would use again.
(Tr. 82) Plaintiff reiterated that she discontinued using all illegal drugs between six
and seven months before the second hearing. (Tr. 83) She admitted that she had
told Dr. Jordan she had “very limited periods of sobriety.” Id. However, plaintiff
testified that she did not know what that meant when she said it. Id.
Plaintiff also testified that she could not “make any sense of” her three
previous separations from her ex-husband, or her behaviors that preceded them,
because it “was like there was someone else in [her] body doing” it; she “had no
control over it.”
Describing what precipitated her two prior in-patient
hospitalizations for suicidal ideation, plaintiff averred that after she left her
husband, she “felt like” she “didn’t see” or “have a point” in “living.” (Tr. 86) She
“felt like [she] was worthless and nothing,” which made her “really depressed,”
emotions she “still struggle[s] with.” Id.
“[A]t times,” plaintiff “feel[s] like maybe”
she “need[s] to go back to the hospital,” but she will instead speak to her father for
“positive reinforcement.” Id.
methamphetamine or crack cocaine “a week prior.” Id. But, according to plaintiff,
she had not recently used any illegal drugs preceding her second hospitalization.
Id. Additionally, as plaintiff explained—and as the medical records show, contrary
to Dr. Auvenshine’s description of those records—she had not overdosed on drugs
in either instance. (Tr. 86–87)
Rather, plaintiff had been experiencing thoughts
that she could not control, after which she threatened to, but did not, overdose on
Her mention of suicide and a specific plan prompted Dr.
Palepu to suggest plaintiff seek in-patient treatment, which she did. (Tr. 87)
As noted, Dr. Palepu was plaintiff’s treating psychiatrist. (Tr. 84) According
to plaintiff, however, Dr. Palepu did not “really give [her] any advice.”
would “just ask” plaintiff “questions and see how” she was “doing,” and he
would then provide her renewed prescriptions for her medications. Id. Plaintiff was
also “supposed to” see a counselor during her visits to Dr. Palepu’s office, but doing
so costs $15.00 per visit, which she could not afford. Id.
Dr. Carla F. Watts, a vocational expert, provided testimony regarding the
employment opportunities for an individual of plaintiff’s age, education, and with no
past relevant work, who retains the capacity to perform the exertional demands of
light work, with some physical restrictions. (Tr. 87–89) Specifically, according to
the ALJ’s hypothetical, such an individual could lift twenty pounds occasionally, ten
pounds frequently, and could sit, stand, or walk for six hours out of an eight hour
workday, for a total of eight hours in an eight hour workday. Id. That hypothetical
individual, who has no transferable work skills, also would be limited to occasionally
climbing, balancing, stooping, crouching, kneeling, or crawling, and to only
occasionally being exposed to ladders, ropes, or scaffolds, without any concentrated
exposure to moving machinery or unprotected heights.
hypothetical to the vocational expert included no provision for any mental
limitations. (Tr. 88–89)
The vocational expert opined that such a hypothetical individual could
perform the representative light, unskilled jobs of fast food worker (DOT #311.472010); hand packager (DOT #753.687-038); or picking table worker (DOT
The positions of picking table worker and hand
packager may involve working with moving conveyor belts, and a fast food worker
may be required to interact with customers and other employees.2
vocational expert offered those exemplars, the ALJ did not adjust his hypothetical
to account for any symptoms of mental impairments. (Tr. 90) Thus, the vocational
expert’s testimony did not address whether a person could perform any of those
jobs, or other jobs that exist in substantial numbers in the national economy, with
any singular or combined symptoms of any mental impairment.
Plaintiff’s counsel inquired whether such a hypothetical individual could still
perform those representative jobs if she were, “required to miss at least one day of
work a month, say, for example, for her headaches.”
expert testified that such a person could perform any of those jobs if she were to
miss only one day of work per month, but not if her conditions caused her to miss
A “fast-foods worker,” or cashier:
Serves customer of fast food restaurant: Requests customer order and depresses keys
of multicounting machine to simultaneously record order and compute bill. Selects
requested food items from serving or storage areas and assembles items on serving
tray or in takeout bag. Notifies kitchen personnel of shortages or special orders.
Serves cold drinks, using drink-dispensing machine, or frozen milk drinks or desserts,
using milkshake or frozen custard machine. Makes and serves hot beverages, using
automatic water heater or coffeemaker. Presses lids onto beverages and places
beverages on serving tray or in takeout container. Receives payment. May cook or
apportion [F]rench fries or perform other minor duties to prepare food, serve
customers, or maintain orderly eating or serving areas.
http://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOT03A.HTM (last visited July 11, 2016).
picking-table worker: “Picks stems, stones, metal, or wood not eliminated by trash-picking machine
from conveyor to prevent damage to beet knives” and, “[m]ay trim tops from beets to prevent
clogging of knives in slicers.” http://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOT05B.HTM (last
visited July 11, 2016). A packing-line worker:
Performs any combination of following tasks as member of conveyor line crew to finish
and pack plastic or rubber footwear: Sorts and mates pairs and places them on
conveyor. Opens or closes buckles, snaps fasteners together, inserts laces in eyelets,
and ties loops (frogs) around buttons. Counts and tallies production or records on
counter. Wraps pair in tissue, places them in shoe box, and packs boxes in cartons.
Places rejects in boxes or racks for repair or mating.
http://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOT07D.HTM (last visited July 11, 2016).
two or more days per month. Id. Further, according to the vocational expert, an
individual as described in the ALJ’s hypothetical—i.e., a person without any
symptoms of mental impairments—who would be required to miss two days or
more per month of work is precluded from “any work.” Id.
D. Medical Records
1. Pre-Application Records
On June 21, 1991, four months after plaintiff’s stroke, speech and language
pathologist Sandra Matthews remarked that plaintiff continued to struggle with
“comprehension of multiple step commands.”
She also “exhibit[ed]
impulsive behaviors,” which Matthews “suspected [were] secondary to her
neuropathy.” (Tr. 353) Plaintiff “require[d] numerous cues to remain on task.” Id.
She had “impaired performance on oral directions both in formal testing and during
She “required numerous repetitions of complex
commands consisting of multiple semantic relations (i.e., ‘place the small red circle
to the left of the large green triangle.’).”
However, her comprehension was
“intact[,] with the exception of multiple complex commands,” which, Matthews
suggested, “may be secondary to attention difficulties.” Id.
Further, plaintiff exhibited “enthusiasm at the outset of reading activities,”
but she “fatigue[d] quickly and exhibit[ed] frustration.”
She also required
“numerous cues to complete” writing tasks. (Tr. 355) Plaintiff was diagnosed with
“moderate attention difficulties.” Id.
Andrew Painter, M.D., treated plaintiff on February 19, 1992. (Tr. 362) Dr.
Painter noted that plaintiff complained of “occasional headaches,” which were
“relieved by Tylenol.”
According to Dr. Painter, plaintiff’s handwriting and
speech had improved since her stroke.
Ramsey “complain[ed] that she will
occasionally still lose her train of thought and has a somewhat delayed response to
Dr. Painter determined that, despite improvements in several
neurological conditions, plaintiff continued to exhibit
“mild” speech issues,
“markedly unsteady” gait, and “clumsy” finger movements. Id.
No evidence of record details plaintiff’s condition from February 1992 until
On June 12, 2000, Michael Noetzel, M.D., assessed plaintiff’s
neurological condition. (Tr. 367) She continued to experience a “minimal” speech
impediment, with “fairly good language and communication skills.” (Tr. 368)
Michael Murphy was plaintiff’s twelfth-grade teacher, and had known her for
On November 2, 2000, Murphy reported that plaintiff,
“tends to drift off during class” and has “difficulty in focusing on tasks at hand.” Id.
He remarked that she “often requires repeated instructions,” and that was “true
even if instructions are also given in a written form as well as orally.” Id.
Plaintiff was “a very slow worker in class.” Id. “She often [fell] behind in
taking notes and” required “information repeated” to her “several times.” Id. She
was “easily distracted.”
Though plaintiff had a “good relationship with her
teachers,” Murphy noted that she would “on occasion have trouble with” some of
“her peers,” so much so that she had “contemplated transferring to another school”
because of it. Id. According to Murphy, plaintiff “seem[ed] to lack energy,” and
the “periods of time when she is less willing to tackle difficult tasks correspond[ed]
with” those “energy lapses.” (Tr. 385)
A few weeks later, in an interview with the Social Security Administration,
Murphy reiterated that plaintiff’s “energy level seems to drop” as class continues.
She also had “many absences” from school, which, she told Murphy,
were due to “being tired, sick, [or] having a headache.” Id. Plaintiff was “easily
frustrated and want[ed] to give up.” Id. Though plaintiff was not afforded an IEP,
because she worked at a “slower” pace than most of her peers, Murphy had given
her extra time to complete assignments, which she completed inconsistently. Id.
Additionally, Murphy remarked that even as plaintiff remained on track to graduate,
her “grades tend[ed] to bounce from a C+ to a low of D-.” Id.
On December 15, 2000, Riyadh Tellow, M.D., assessed plaintiff’s neurological
According to Dr. Tellow, plaintiff “appeared simple
“Her speech [was] somewhat slow.”
She also suffered
from diminished coordination. Id.
Plaintiff made an unscheduled visit to a primary care center on August 28,
2002, complaining of, inter alia, symptoms of “malaise.” (Tr. 408) Dennis Reed,
P.A., examined plaintiff.
According to Reed, plaintiff “seem[ed] significantly
slow,” though Reed suggested that, “may be only representative of her maturity.”
Id. Plaintiff remarked to Reed that she had, “[s]ome problems with memory.” Id.
On August 16, 2004, Jyoti Kulkarni, M.D., examined plaintiff.
Plaintiff described “lacking energy to take care of” her newborn baby. Id. She also
complained of insomnia and of a “lack of concentration,” with “no energy to carry
out her daily activities.” Id. Dr. Kulkarni diagnosed plaintiff with depression, with
somatic symptoms, and sought to rule out post-partum depression.
prescribed a short-term dose of Zoloft (Sertraline), an antidepressant, and
recommended plaintiff follow-up after her laboratory test results were available. Id.
At that follow-up appointment on August 30, Dr. Kulkarni described plaintiff as
having a “history of depression.” (Tr. 433) The Zoloft was “helping her to calm
down.” Id. Dr. Kulkarni diagnosed plaintiff with non-post-partum depression and
prescribed Zoloft to treat the condition long-term. Id.
Shahid Choudhary, M.D., examined plaintiff on April 24, 2008.
Plaintiff was prescribed Tramadol, a narcotic pain reliever, to treat her recurrent
headaches, which, plaintiff said, occurred approximately four times per week and
lasted the entire day. (Tr. 502–03)
Plaintiff was also taking prescription Celexa
(Citalopram), an antidepressant. (Tr. 505) She complained to Dr. Choudhary of
experiencing fatigue and nervousness.
depression. (Tr. 506)
However, plaintiff denied
Dr. Choudhary determined plaintiff might be experiencing
migraine headaches, with “some component” possibly due to tension.
Choudhary next examined plaintiff on May 8, 2008, following continued complaints
Believing it was possible the headaches were tension
related, Dr. Choudhary prescribed Elavil. Id.
On August 18, 2008, Marsha Toll, Psy.D., completed a Psychiatric Review
Technique of plaintiff’s conditions. (Tr. 517–27) Dr. Toll determined plaintiff had
no medically determinable impairment at that time.
According to Dr.
Toll, plaintiff alleged a neurological disorder, headaches, anxiety attacks, and
fatigue. (Tr. 527) Dr. Toll did not remark whether plaintiff alleged depression. Id.
Reviewing the medical evidence, Dr. Toll concluded plaintiff had diagnosed
tension headaches but no diagnosed anxiety. Id. According to Dr. Toll, plaintiff’s
“statements do not indicate that she has any significant problems,” given that she
“lives with friends and her two children,” that she “can care for the children, cook,
shop, drive, [and] clean,” and that she “leaves her house daily and can do so
alone.” Id. Dr. Toll determined plaintiff had no medically determinable impairment
“for a mental health condition,” and “no further investigation [was] warranted.” Id.
However, by November 21, 2008, plaintiff’s mental health condition had
deteriorated to the extent she was admitted to the hospital for in-patient
psychiatric treatment. (Tr. 528, 536) According to those hospital records, plaintiff
had been suffering from depression for at least the past year. (Tr. 539) She was
treated for diagnosed “acute” depression and “suicidal ideation.” (Tr. 528) From
November 21 through November 25, plaintiff was treated for those conditions under
the supervision of John Lake, M.D.
She reported poor short-term
memory and concentration, with a lack of focus. (Tr. 545) Plaintiff also indicated a
strong desire to isolate herself from others and low interest in activities. Id. Asked
to describe her positive traits, plaintiff said she is intelligent and a good cook. Id.
According to Dr. Lake, plaintiff’s arrival at the emergency room was
precipitated by an “increase in depression and suicidal thoughts in response to
recent relationship stressors.” (Tr. 531) Hunter was “concerned about her safety”
hallucinations, Dr. Lake determined her condition warranted a diagnosis of “major
depression” and “Generalized Anxiety Disorder.”
(Tr. 531, 537)
Dr. Lake also
remarked that plaintiff “exhibited some signs of underlying Personality Disorder,”
with “dramatic attention seeking” and “narcissistic and histrionic traits,” though she
“did seem to respond to medications.” (Tr. 531, 533)
Plaintiff was prescribed Celexa, for depression; Xanax, for anxiety; and
Ambien, for insomnia.
On November 25, plaintiff was discharged in
“stable condition with no suicidal risk factors.”
Dr. Lake diagnosed several
mental health diagnoses at the time of discharge: “Axis I: Depressive Disorder, not
otherwise specified. Substance abuse. Axis II: Personality Disorder, not otherwise
specified. Axis III: none. Axis IV: Moderate family stressor. Axis V: Current [GAF]
was 40 on admission, and on discharge was 60.”
instructions on discharged were to take her medications and to follow up with
Hunter for out-patient psychiatric care. (Tr. 534)
A week later, on December 3, Tammy Phillips, F.N.P., examined plaintiff and
remarked that she was experiencing seasonal pattern depression and generalized
On March 9, 2009, Phillips again remarked that
plaintiff was suffering from depression. (Tr. 576)
On October 29, 2009, Charlene Furr, F.N.P., examined plaintiff in response to
her complaints of recurrent headaches. (Tr. 573) Plaintiff told Furr that she was
not feeling tired, and averred that she had no anxiety, depression, or sleep
disturbances. Id. Her mood was normal. (Tr. 574)
On November 3, 2009, plaintiff sought treatment for her concern that
unspecified medications might lower her blood pressure.
informed that side effect was unlikely.
During that examination, plaintiff
indicated her symptoms were fatigue, weakness, and joint pain.
(Tr. 570, 572)
She did not report experiencing anxiety, depression, or sleep disturbances.
571) However, a few weeks later, on November 24, plaintiff was again noted to be
But at that same examination, medical
personnel noted no anxiety, depression, or sleep disturbances. Id. Plaintiff’s mood
was also normal, and she did not report fatigue. (Tr. 568–69)
Furr examined plaintiff again on February 4, 2010.
plaintiff had a diagnosis of depression, she reported to Furr that she was not then
suffering from anxiety, depression, or disturbed sleep. (Tr. 564) Plaintiff’s mood
Furr noted the same absence of symptoms at follow-up
appointments on February 11 and March 4, 2010.
evidence of record speaks to plaintiff’s mental health conditions from April 2010
through September 2010.
On October 20, 2010, Hunter diagnosed plaintiff with depression. (Tr. 605)
However, Hunter remarked that plaintiff’s mood, memory, judgment, and cognition
were all within normal limits, and her concentration level was focused.
was cooperative. Id. Her speech pattern was normal, and her ability to process
her present situation was within normal limits, with no delusions or other sensory
Plaintiff’s symptoms were exactly the same at twelve monthly follow-up
appointments through September 2011, with the sole exception of October 26,
2010, when plaintiff’s mood was noted as depressed and anxious. (Tr. 594–607)
At no point did plaintiff’s therapist document any limitations in her daily activities as
a result of her depression. See id. Rather, she was experiencing “boredom.” (Tr.
On November 1, 2010, plaintiff was sought emergency treatment for an
At the emergency room, medical personnel
remarked that plaintiff appeared to have an anxiety disorder. Id. On November 2,
2010, December 14, 2010, and January 11, 2011, during plaintiff’s follow-up visits
for medication refills, medical personnel indicated she was awake and alert,
normally oriented, with normal mood, and not experiencing any mental health
symptoms. (Tr. 625–28, 632–34)
On March 8, 2011, plaintiff sought refills of her prescription medications. (Tr.
She was in no acute distress.
Her ability to communicate,
mood, and affect were all normal. Id. According to medical professionals, plaintiff
was experiencing “no psychotic thoughts,” with normal association, judgment,
“motor behavior, speech, thought processes, attitude, and pain behavior.” Id.
Plaintiff tested negative for illegal drug use on March 2, 2011. (Tr. 412, 588)
On April 26, Phillips examined plaintiff for complaints of migraine headaches. (Tr.
596) Plaintiff did not report any symptoms of anxiety, depression, or insomnia. Id.
Her psychiatric evaluation was in all respects normal. Id. At an examination on
May 2, plaintiff’s mood and affect were normal, and her memory was not impaired.
On medication, her mood was “better” and her sleep pattern was
“ok.” (Tr. 619) Her familial and social relationships had improved. Id.
On June 28, 2011, plaintiff’s memory, mood, and affect were normal, and
she was alert.
Plaintiff remarked that her medications were
improving her daily functioning and activities, as well as her sleep pattern.
616) The same was true on July 26, 2011. (Tr. 613) According to Lee Schuler,
P.A., on August 23, 2011, plaintiff was awake and alert. (Tr. 609–13) Her memory
was normal, as were her mood and affect. Id. On September 20, 2011, plaintiff
told medical personnel that her mood was “better” and that she was experiencing
improved social and familial relationships. (Tr. 608–09, 641–44)
Though Reed acknowledged plaintiff’s diagnosis of depression, (Tr. 662), on
February 8, 2011,
determined plaintiff was not experiencing any
depression, insomnia, or anxiousness. (Tr. 656, 662) The same was true during
another examination on February 15. (Tr. 654) Reed also found no impairment in
plaintiff’s judgment, memory, speech, or mood on March 2. (Tr. 653)
On April 20, 2011, Reed observed “no known or apparent agitation, anxiety,
[or] depression.” (Tr. 651) The results were the same on June 30 with additional
remarks that plaintiff had no detectable memory, judgment, mood, or speech
impairment. (Tr. 650) On August 30 Reed noted that plaintiff had been prescribed
medications for anxiety and insomnia, though without any notation that plaintiff is
limited by her anxiety or other conditions. (Tr. 647)
2. Post-Application Records
On October 24 and November 21, 2011, plaintiff sought refills of her
prescriptions. (Tr. 636, 638) On both occasions she appeared well-developed and
well-nourished, “easily responsive” to visual, verbal, and tactile stimulation, and
well-oriented and cooperative.
(Tr. 636, 639)
(Tr. 636, 639)
Her ability to communicate was
Plaintiff was awake and alert, without memory
impairments, and her mood was normal and appropriate, without noted depression
(Tr. 637, 639)
In addition, plaintiff had a “pretty good” or “better”
ability to perform activities of daily living of every type, including maintaining
appropriate social interaction, and mood.
(Tr. 638, 641) Similarly, on November
29, 2011, Reed observed plaintiff and noted no agitation, anxiety, depression, and
no impairments to her judgment, memory, mood, or speech. (Tr. 646)
On December 12, 2011, James W. Morgan, Ph.D., completed a Psychiatric
Review Technique of plaintiff’s conditions. (Tr. 677) Dr. Morgan determined that,
at that time, plaintiff’s sole medically diagnosable mental health condition was
major depressive disorder, which was not severe. (Tr. 677–80)
Morgan did not note any medically diagnosable memory impairment, mood
disturbance, impaired impulse control, or difficulty concentrating. Id.
He also did not diagnose any cognitive impairment,
speech impairment, or anxiety disorder. (Tr. 680–81) Dr. Morgan determined that
plaintiff’s major depressive disorder caused only mild restriction in her activities of
daily living, mild difficulties in her ability to maintain social functioning, and mild
difficulties in maintaining concentration, persistence, and pace.
However, Dr. Morgan did not indicate whether or not plaintiff had suffered episodes
of decompensation. Id.
Reviewing the medical evidence of record, Dr. Morgan noted that plaintiff’s
attention and concentration were focused, and her judgment, memory, attitude,
activity level, affect, mood, and speech were all normal. (Tr. 687) Dr. Morgan also
remarked that plaintiff had, “not made any complaints that are documented
regarding concerns of anxiety or depression.” Id. Plaintiff got along with others,
had friends, and admittedly could perform all activities of daily living without
Based on that evidence, Dr. Morgan opined that plaintiff’s claim
that anxiety and depression limit her ability to work is only partially credible. Id.
He further opined that those conditions are non-severe because plaintiff “continued
to function” and “does not report any concerns that are documented.” Id.
Following Dr. Morgan’s report, records in evidence before the ALJ detail
plaintiff’s counseling treatment from March 26, 2012, through May 13, 2013. (Tr.
On March 26, 2012, Stacy Scott, a licensed clinical social worker,
afforded plaintiff therapy for depression and methamphetamine abuse. (Tr. 696)
At that time, Scott recommended no additional medications to treat plaintiff’s major
She was advised to continue therapy to treat her
depression and to abstain from drug use. Id.
Licensed clinical social worker Teresa Nichols examined plaintiff the same
day. (Tr. 697) Nichols reported that plaintiff was irritable, but not depressed or
Her thought content was unrealistic, but she was coherent, with
appropriate speech, no memory impairment, and fair judgment and insight.
She was restless, but well oriented. Id. Nichols opined that plaintiff was suffering
from Axis I conditions of major depressive disorder, which was severe, and
moderate amphetamine abuse.
On Axis IV, plaintiff had severe, enduring
problems with her primary support group, and moderate, enduring problems
relating to her social environment, occupational problems, and other unspecified
psychosocial and environmental problems. Id.
Plaintiff told Nichols: “I guess I need help because I have not been making
good decisions at all.” (Tr. 698) She sought medication and counseling for “trouble
staying asleep.” Id. She described her relationship with her husband, from whom
she was then separated, as, “not very loving” and, “a roller coaster.” (Tr. 698–99)
Plaintiff admitted to using methamphetamine. (Tr. 699) She complained of having
“symptoms of depression” and “family problems,” with “traumatic experiences,
anxiety, sleep problems, and mania.”
However, plaintiff admitted to Nichols
that she was not taking any of her prescription medications. (Tr. 700) Noting her
past psychiatric hospitalization for suicidal ideation, plaintiff also denied actually
having attempted suicide.
But plaintiff averred she thinks about suicide
between once and twice per week. Id.
Plaintiff was stressed about living with her mother, “not knowing what to do
or where to go,” not working, having “difficulty finding a job,” and not having
money. (Tr. 701) She enjoyed “being with her children” and described herself as,
“good with people.” Id. Plaintiff also remarked that people trust her easily, as she
is nice and “pretty outgoing.” Id. Plaintiff told Nichols that she had applied to work
at a nursing home and had “applied for disability due to back problems.” (Tr. 702)
Scott recommended that plaintiff follow-up for additional counseling.
Plaintiff articulated two primary goals for her therapy: “quit doing drugs and mak[e]
better decisions.” Id. Plaintiff also remarked that her depression is “situational,”
and told Nichols that “she can control the anxiety on her own.” Id.
At an April 17, 2012, counseling session with Scott, plaintiff’s mood was
methamphetamines one week prior.
Scott observed that plaintiff’s behavior
was appropriate, her thoughts were appropriate and congruent, her speech was
appropriate, and she appeared to have fair insight and judgment, without impaired
However, on April 27, 2012, plaintiff was referred to an emergency
appointment for psychiatric services after an unidentified person contacted a crisis
hotline to report plaintiff’s threats of self-harm. (Tr. 720) Plaintiff was admitted to
the hospital on a voluntary basis for in-patient psychiatric treatment from April 27
until May 4, 2012. (Tr. 769) She was treated by Margaret Singleton, M.D. (Tr.
Plaintiff’s chief complaints were “depression and overdosing on her
medications[,] secondary to a break up with her boyfriend and other family
situations.” (Tr. 769)
Dr. Singleton diagnosed plaintiff with a major depressive disorder, obsessive
compulsive disorder, and a “questionable history of bipolar disorder.” Id. Plaintiff
responded well to medications, as well as individual and group counseling. Id. She
“slow[ed] down” following administration of Lithium, for hyperactivity, as well as
Luvox (Fluvoxamine) and Anafranil (Clomipramine), for obsessive compulsive
disorder. Id. On medication she was “somewhat calm, more focused and better
able to tolerate her stay” in the hospital. Id.
During initial group counseling plaintiff was sad, tearful, restless, unable to
focus, and she demonstrated poor concentration. Id. After nine days of treatment
and medication, however, her participation was high, she was able to set goals for
herself, and she had better and increased socialization with her peers.
condition on discharge was “stable”. (Tr. 769–70) Dr. Singleton’s recommended
course of treatment was continued therapy and medication, with no noted
restrictions on plaintiff’s activities. Id.
Upon discharge on May 4, plaintiff was able to communicate, read, write,
understand and remember instructions, and was free of severe pain.
She had a regular diet, a good appetite, and was discharged to home with no noted
restrictions on her ability to independently carry out her activities of daily living.
Id. She was instructed to continue taking prescribed medications and to follow-up
for additional therapy. Id.
Dr. Palepu’s notes of plaintiff’s psychiatric counseling on May 9, 2012, are in
many respects illegible. (Tr. 721) Plaintiff was stressed because of issues with her
relationships and reported having suicidal thoughts.
Id. However, she appeared
clean and appropriately groomed, with good eye contact, and normal speech. Id.
Dr. Palepu remarked that plaintiff’s mood was positive, and her affect was
congruent, without noted symptoms of depression. Id. According to Dr. Palepu,
plaintiff’s judgment was intact, and she had only moderate limitations in her mood
Scott’s next therapy session with plaintiff occurred on May 15, 2012.
719) Her mood was appropriate, not depressed or anxious. Id. That was also true
of her affect, behavior, thought content, and speech. Id. Her thought processes
appeared coherent, and she had fair insight and judgment, with no memory
problems. Id. Plaintiff told Scott that she felt, “great.” Id.
Similarly, on May 30, 2012, plaintiff was anxious but not depressed during
therapy. (Tr. 718) Her behavior, thoughts, and speech were appropriate. Id. Her
thoughts were also coherent, and consistent with fair judgment and insight.
Her memory was normal.
Plaintiff was stressed and confused about
“relationship issues” with her husband and grief over the death of one of her
Her prescribed course of treatment was continued therapy,
without noted limitations to her daily routine. Id.
On June 5, 2012, Rosemary Collins, a psychiatric nurse practitioner,
examined plaintiff as a follow-up to her release from the hospital.
Plaintiff remarked that her suicidal ideation and decision “to hurt herself” prior to
her hospitalization stemmed from an argument with her ex-boyfriend. Id. She told
Collins that “she has always had depression and anxiety.” Id.
Collins determined plaintiff was not suffering from any psychosis.
Plaintiff complained of being “paranoid all the time” and not having any friends. Id.
She denied suicidal ideation.
Plaintiff admitted noncompliance with her
medications, including prescriptions for Lithium, Prozac (Fluoxetine), and Anafranil.
Id. According to Collins, plaintiff’s “tentative diagnosis” was, “Major Depression vs.
Bipolar and OCD.” Id. Plaintiff averred she “just needs help” because she “is not
making good decisions and she keeps falling for the wrong type of people.” Id.
Collins remarked that plaintiff tested positive for substance abuse, mania,
and sleep problems.
recently as six weeks earlier.
She admitted using methamphetamines as
which plaintiff attributed to anxiety.
Collins described plaintiff as “fidgety,”
Plaintiff’s mood was “somewhat
sarcastic and aloof.” Id. She exhibited sarcasm and irritation with the questions
being asked of her. Id. For example, she was directed to cease using her phone
throughout the therapy session, but she refused to do so.
Id. Collins remarked
that plaintiff did “not appear to be manic or hypo[-]manic.” Id.
Plaintiff’s immediate memory was adequate, but her long-term memory was
“questionable based upon recall of important details of her own history.” Id. Her
concentration was poor.
Plaintiff appeared to have low-average intelligence
“based upon” plaintiff’s “vocabulary and general fund of information,” but “without
being formally tested.” Id. She seemed immature, according to Collins, though a
formal diagnosis on Axis II was deferred. Id.
Plaintiff was “verbalizing that she has Bipolar,” but she was “not taking a
mood stabilizer” and told Collings that, “she does not wish to take one.”
Though plaintiff was taking her prescribed Trazodone to manage her sleep pattern,
she was not taking other medications at that time, and refused to take them. (Tr.
It was “unclear” whether plaintiff had been sober.
concerned that plaintiff “will not be compliant with medications.”
determined that plaintiff was to be “tapered off of” Xanax because of her recent
drug use. Id.
Further, Collins wrote that she would “more than likely not continue”
providing plaintiff therapy, unless she was “willing to actively be involved in
individually therapy” and medication management. Id. Though plaintiff had prior
diagnoses of methamphetamine abuse and a major depressive disorder, Collins was
determined to further evaluate whether plaintiff merely had a not otherwise
specified mood disorder. Id. Additional evaluation was warranted, she remarked,
to rule out major depressive disorder, bipolar disorder, and a substance-abuseinduced mood disorder. (Tr. 738–39) Collins prescribed additional therapy and a
reduction in plaintiff’s Xanax prescription, with no restrictions on her daily activities.
Syed Sayeed, M.D., reviewed and approved that assessment and
treatment plan. Id.
On June 8 and June 19, 2012, Collins held additional therapy sessions with
plaintiff, at which time she was not taking any prescription medications. (Tr. 707)
Her Axis I diagnoses included a mood disorder and moderate methamphetamine
abuse. Id. Collins noted no signs of recurrent major depressive disorder, bipolar
disorder, or a substance-induced mood disorder, and she sought to rule out those
conditions. Id. Collins recommended plaintiff adhere to her prescribed medication
and therapy regimens. Id.
On July 16, 2012, plaintiff was “aloof” and fidgety during therapy. (Tr. 734)
She was goal-directed, but focused on her relationships.
She had limited
judgment and insight, though Collins noted no psychosis. Id. Plaintiff was again
counseled to discontinue using non-prescription drugs.
further investigation was warranted to assess whether plaintiff was suffering from
bipolar disorder. Id. Collins remarked that plaintiff was not experiencing anxiety or
depression. Id. She also suggested plaintiff may no longer need Xanax, though a
follow-up appointment would be needed to confirm that. (Tr. 734–35)
On August 27, 2012, plaintiff attended therapy.
She was not
depressed. Id. On August 29, 2012, plaintiff dropped out of therapy after having
attended four counseling sessions and making “no progress.”
returned on November 1, 2012, and Collins noted her noncompliance with
prescription medications. (Tr. 730) Her judgment and insight were “limited,” and
her thought processes were “disjointed.”
However, plaintiff’s mood was
euthymic, rather than depressed, and her affect was congruent. Id. Her thoughts
were goal-directed, and she was not suffering from any delusions or suicidal
On November 7, 2012, plaintiff sought crisis psychiatric treatment. (Tr. 713)
Plaintiff told the intervention therapist, Angela Lutmer, that she was suicidal and
had been having such thoughts for the past few months.
thought about taking “a whole bunch of pills,” though she admittedly did not have
the means at the time to do so. (Tr. 715) According to Lutmer, plaintiff had “no
current plan or intent” to commit suicide. (Tr. 716)
Rather, Lutmer suggested plaintiff may have been under the continued
effects of methamphetamines.
She admitted to using “a lot” of
methamphetamine for the “past couple months,” including the previous evening.
Id. Plaintiff reported her sleeping habits were “okay” on medication if she was not
She exhibited symptoms of obsessive compulsive
disorder and described herself as “never really happy.” Id. Lutmer recommended
therapy and substance abuse treatment. Id.
On December 20, 2012, licensed clinical social worker Kellee Foote examined
plaintiff and determined she continued to experience a substance-induced mood
disorder, amphetamine dependence, and that she was abusing cannabis. (Tr. 705)
Foote recommended bi-weekly therapy to learn coping mechanisms to address her
depression and anxiety, and that she refrain from substance abuse while continuing
her prescription medications. (Tr. 705–06)
On January 7, 2013, plaintiff attended therapy. (Tr. 711) Foote remarked
that plaintiff’s mood was depressed and her thoughts were loosely associated, but
her thought content and behavior was appropriate. Id. Her speech was rapid, but
with slowed motor activity. Id. She had poor judgment and insight. Id. However,
her memory was not impaired and she was well oriented. Id. According to Foote,
plaintiff was “not invested in participating in” therapeutic activities to address her
depressed and “tearful” mood. Id.
Foote also remarked that plaintiff may not have been sober at the therapy
session, and recommended plaintiff attend in-patient treatment for substance
abuse. Id. Foote informed plaintiff that she must be sober at all future therapy
sessions. Id. Plaintiff admitted that she had “been using crack every day since her
last” therapy session.
Plaintiff refused to confirm whether or not she would
accept Foote’s referral to drug treatment. Id.
On January 31, 2013, plaintiff attended therapy following her husband’s
announcement that he had filed for divorce and for custody of their children. (Tr.
728) But plaintiff did not describe herself as depressed. Id. Her judgment was
poor, as she was using methamphetamine. Id. Her primary concerns centered on
her relationship with her children, her husband, and her boyfriend. Id. Plaintiff was
anxious and nervous, but her “worries appear[ed] to be fact based” with regard to
her current “legal problems.” (Tr. 729)
Records from a therapy session on February 28, 2013, show that plaintiff had
been skipping therapy. (Tr. 727) She complained of claustrophobia while driving
and obsessive compulsive disorder.
Plaintiff admitted to having been using
methamphetamines for the past two months. Id. She was experiencing “paranoia”
and was “upset about not seeing her children.”
However, her mood was
euthymic, and she was not depressed, with goal-directed thought processes.
In addition, plaintiff was not taking her prescribed medications. Id.
On March 6, 2013, Dr. Palepu noted that plaintiff was depressed, with poor
judgment and insight.
However, her thought processes were goal
directed, and Dr. Palepu’s only recommendation appeared to be that plaintiff should
continue regular therapy and her existing medications.
Id. Likewise, on April 3,
2013, Dr. Palepu remarked that, other than plaintiff’s diagnosed moderate
depression, she had no other extant mental health conditions.
one month earlier, her mood was euthymic; she was not depressed.
judgment was intact. Id.
On April 4, 2013, Dr. Palepu referred plaintiff for additional therapy and
He diagnosed her with recurrent major
depressive disorder, which was moderate, and methamphetamine abuse. (Tr. 708)
Dr. Palepu ruled out a mood disorder, borderline personality disorder, and histrionic
According to Dr. Palepu, plaintiff had depression with
multiple stressors, for which he recommended therapists assist plaintiff with
developing coping skills to decrease her symptoms. (Tr. 709)
As Dr. Auvenshine noted, on July 30, 2013, Dr. Jordan conducted a full
neuropsychological evaluation of plaintiff at the behest of the Social Security
Administration. (Tr. 742) That evaluation included a review of plaintiff’s records
and a clinical interview with plaintiff, including tests of her mental status. (Tr. 743)
Dr. Jordan examined plaintiff for, as relevant here, complaints of anxiety attacks,
fatigue, and depression. (Tr. 742)
As described by Dr. Jordan, plaintiff reported a “history of polysubstance
abuse (methamphetamine, cocaine, marijuana) with very limited periods of
sobriety.” Id. Plaintiff told Dr. Jordan that she had, “been off all illegal substances
for the past two months.”
Dr. Jordan remarked: “I would characterize her
remission as in the early stages; I would not anticipate full cognitive recovery from
this abuse for the next year.” Id.
According to Dr. Jordan, though plaintiff had been diagnosed with major
depression, she instead “appear[ed] to be under treatment for bipolar disorder with
mood stabilizing medications.” Id. Dr. Jordan opined: “at this time, her psychiatric
status appears fairly well-controlled.” Id. Additionally, Dr. Jordan noted, plaintiff’s
“history would be consistent with bipolar II disorder, but [her] current severity is
Further, though plaintiff alleged cognitive limitations, Dr. Jordan
observed “only some mild slowing of cognition and increased forgetting rate on
some of the subtests of the memory testing.”
Dr. Jordan determined that
those “problems are more likely related to her substance abuse history (as well as
the early status of her sobriety) and her mood disorder, rather than a progressive
neurological condition.” Id.
Dr. Jordan determined plaintiff had no limitations in her ability to perform
activities on schedule and follow an ordinary routine. (Tr. 743) She had only mild
restrictions in her ability to remember locations and work-like procedures;
understand, remember, and carry out very short and simple instructions; or
maintain attention and concentration for extended periods. Id. Plaintiff also could
work in proximity to others without distraction, make simple work-related
psychologically-based symptoms. Id.
According to Dr. Jordan, plaintiff would be able to ask simple questions or
request assistance as needed, with no limitation accepting instructions or criticism
from supervisors. Id. She would also be able to get along with peers at work, and
respond appropriately to changes in the work setting.
Id. Plaintiff had no
impairment in her awareness of normal hazards and the appropriate precautions to
counter them. Id. She could set realistic goals and make independent plans. Id.
Dr. Jordan also opined that plaintiff had no marked restrictions. Id. Further,
her only moderate restrictions were in the ability to perform at a consistent pace
and to interact appropriately with the general public. Id. First noting that plaintiff
“has apparently never held a competitive job,” Dr. Jordan remarked that plaintiff
indicated only “mildly impaired capacity to maintain her normal household
activities, depending on her mood status.” Id. Dr. Jordan’s impression was that
plaintiff suffers from polysubstance abuse, in early remission, and Bipolar II
disorder, and is currently mildly depressed. Id.
Dr. Jordan also completed a Medical Source Statement the same day. (Tr.
Consistent with his analysis, he remarked that plaintiff’s “mild memory
problems, poor stress tolerance, and slowed mentation” cause only mild difficulties
understanding, remembering, and carrying out simple instructions, making simple
instructions. (Tr. 748) Those conditions would cause her no more than moderate
difficulties carrying out complex instructions and making complex work-related
Likewise, according to Dr. Jordan, plaintiff’s depression and
anxiety would cause her only mild difficulties interacting with the public,
supervisors, and co-workers, and moderate difficulties responding to usual work
situations and changes in work-setting routines. (Tr. 749) Dr. Jordan also opined
that plaintiff’s history of methamphetamine and cocaine abuse may have still been
affecting her conditions.
Thus, he explained, plaintiff’s cognition and mood
would be expected to improve over the next year, if she remained drug free. Id.
On August 12, 2013, plaintiff was again admitted to the hospital for inpatient psychiatric treatment stemming from “complaints of depression” and
“suicidal thoughts,” with an alleged onset two weeks before she was admitted. (Tr.
She reported “increased depressive symptoms with thoughts of harming
[her]self, [and] planned to overdose on medication.” Id.
Dr. Pang observed that plaintiff was well oriented and fairly groomed.
But she exhibited symptoms of anxiety and depression, with a flat affect.
Plaintiff’s insight and judgment were fair.
Tests revealed she was not using
illegal drugs. (Tr. 764) She participated in individual and group therapy, and was
discharged after four days, on August 16. (Tr. 754)
Dr. Pang diagnosed plaintiff with a major depressive disorder, which was
recurrent and severe, but without psychotic behaviors. (Tr. 767)
that diagnosis were “[n]o activity limitations.” (Tr. 766) Plaintiff was instructed to
continue her existing medications, with a renewed prescription for Celexa, to
maintain a regular diet, and to continue therapy. (Tr. 754, 766–67)
3. Post-Decision Records
The Appeals Council considered new evidence submitted by plaintiff following
the ALJ’s decision.
(Tr. 2, 4)
That evidence consisted of a Mental Impairment
Questionnaire completed by Dr. Palepu on February 21, 2014.
Portions of Dr. Palepu’s statement are illegible. According to Dr. Palepu, plaintiff is
“not very compliant” with her medications. (Tr. 783) The doctor appears to have
written that plaintiff is irritable, sad, and depressed, with poor insight and
judgment. Id. He may also have written that her prognosis was fair. Id.
In any event, Dr. Palepu was asked to identify all of plaintiff’s extant signs
Dr. Palepu checked boxes indicating the following
symptoms: loss of interest in almost all activities, decreased energy, thoughts of
suicide, feelings of guilty or worthlessness, mood disturbances, difficulty thinking or
concentrating, paranoia, easy distractibility, memory impairment, and a disrupted
However, Dr. Palepu did not indicate plaintiff’s affect was
inappropriate, that she experienced persistent anxiety or disturbances in her mood
or affect, or mental retardation, emotional withdrawal or isolation. Id. She was not
experiencing bipolar disorder or any organic dysfunction of the brain. Id.
Further, Dr. Palepu did not indicate that plaintiff’s thinking is illogical.
Though he checked the box to denote plaintiff is paranoid, Dr. Palepu did not report
that paranoia results in pathologically inappropriate suspicions or hostility.
According to Dr. Palepu, plaintiff is not hyperactive or manic, nor is she disoriented
or delusional. Id. Her perception and thinking are undisturbed. Id.
Plaintiff suffers from no ingrained, maladaptive patterns of behavior.
She does not have severe panic attacks.
Despite two hospitalizations for
suicidal ideation that allegedly stemmed from familial and romantic relationship
difficulties, according to Dr. Palepu, plaintiff does not experience intense and
unstable interpersonal relationships, or impulsive and damaging behavior. Id. She
was not noted to have any communication difficulties or loss of intellectual ability.
As to plaintiff’s ability to perform unskilled work, Dr. Palepu opined that
plaintiff is able to remember work-like procedures.
She can also
understand, remember, and carry out very short and simple instructions; make
simple work-related decisions; complete a normal workday and workweek without
interruptions from psychologically based symptoms; and ask simple questions or
Further, plaintiff would be expected to both accept
instructions and respond appropriately to criticism from supervisors, and respond
appropriately to changes in work routine, as well as recognize and take precautions
from normal hazards. Id.
However, according to Dr. Palepu, plaintiff is seriously limited, but not
precluded, from maintaining attention for two-hour segments, maintaining regular
attendance and punctuality, sustaining an ordinary routine without special
supervision, or working in coordination with or proximity to others without being
She is also seriously limited, but not precluded, from
performing at a consistent pace without an unreasonable number and length of rest
periods, getting along with her peers without unduly distracting them or exhibiting
behavioral extremes, or dealing with natural work stress.
tasked Dr. Palepu to explain any limitations he marked as serious or more than
serious, and he was requested to include the medical and clinical findings that
supported his assessment. Id. He did not respond to that question. Id.
Dr. Palepu also opined that plaintiff’s ability to perform semiskilled and skilled
work was limited, but satisfactory, with regard to understanding, remembering, and
carrying out detailed instructions.
But, the doctor remarked, plaintiff was
seriously limited, though not precluded, from setting realistic goals or making plans
independently of others, or from dealing with the stress of semiskilled and skilled
work. Id. Again, though requested to do so, Dr. Palepu provided no explanation or
medical and clinical findings to support this assessment. Id.
Dr. Palepu also opined that plaintiff has a limited but satisfactory capacity to
interact appropriately with the general public, adhere to basic standards of
neatness and cleanliness, and use public transportation. (Tr. 786) According to Dr.
Palepu, plaintiff is seriously limited, but not precluded, from maintaining socially
appropriate behavior and traveling to unfamiliar places. Id. Dr. Palepu offered no
explanation or medical and clinical findings to support those opinions. Id.
Dr. Palepu also remarked that plaintiff does not have a low IQ or reduced
intellectual functioning, and her psychiatric conditions do not exacerbate any of her
physical conditions. Id. According to Dr. Palepu, plaintiff has moderate limitations
in her activities of daily living and moderate difficulty maintaining social functioning.
She also has moderate difficulty maintaining concentration, persistence, and
Dr. Palepu also remarked that plaintiff had experienced one or two
episodes of decompensation within the last twelve months, each of at least two
weeks in duration. Id. But Dr. Palepu did not provide details about those episodes
Finally, Dr. Palepu opined that plaintiff’s mental
impairments would cause her to miss work about four days per month. (Tr. 788)
Other than the Mental Impairment Questionnaire, no treatment notes or
other medical evidence was submitted by Dr. Palepu post-dating the ALJ’s decision,
which incorporated all other medical evidence of record.
After considering Dr.
Palepu’s statement and plaintiff’s brief in support, the Appeals Council denied
plaintiff’s request to review the ALJ’s decision. (Tr. 1–4)
The ALJ’s Decision
In the decision issued on February 6, 2014, the ALJ made the following
Plaintiff has not engaged in substantial gainful activity since October 6,
2011, the application date.
Plaintiff has the following severe impairments:
back and (2) migraine headaches.
Plaintiff does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Plaintiff has the RFC to perform light work, as defined in 20 C.F.R.
§ 416.967(b), except that she can lift, carry, push, and pull 20 pounds
(1) disorder of the
occasionally and 10 pounds frequently; she can sit, stand, or walk six
hours in an eight-hour workday for a total of eight hours in an eighthour workday; she can occasionally climb, balance, stoop, crouch,
kneel, and crawl; she must be limited in her exposure to ladders,
ropes, and scaffolds; and she should have no concentrated exposure
to moving machinery or unprotected heights.
Plaintiff has no past relevant work.
Plaintiff was born on July 2, 1982, and was 29 years old, which is
defined as a younger individual age 18–49, on the date the application
Plaintiff has at least a high school education and is able to
communicate in English.
Transferability of job skills is not an issue because plaintiff does not
have past relevant work.
Considering plaintiff’s age, education, work experience, and RFC, there
are jobs that exist in significant numbers in the national economy that
plaintiff can perform.
Plaintiff has not been disabled within the meaning of the Social
Security Act since October 6, 2011, the date the application was filed.
The Court must affirm the Commissioner’s decision “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.” Long, 108 F.3d at 187.
“Substantial evidence is less than a preponderance, but enough so that a
reasonable mind might find it adequate to support the conclusion.”
Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d
1145, 1147 (8th Cir. 2001)).
If, after reviewing the record, the Court finds it
possible to draw two inconsistent positions from the evidence and one of those
positions represents the Commissioner’s findings, the Court must affirm the
decision of the Commissioner.
Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir.
2011) (quotation marks and citation omitted).
To be entitled to disability benefits, a claimant must prove she is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D),
(d)(1)(A); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009).
Commissioner has established a five-step process for determining whether a person
is disabled. See 20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th
“Each step in the disability determination entails a separate analysis
and legal standard.” Lacroix v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
Steps one through three require the claimant to prove (1) she is not
currently engaged in substantial gainful activity, (2) she suffers from a severe
impairment, and (3) her disability meets or equals a listed impairment. Pate-Fires,
564 F.3d at 942. If the claimant does not suffer from a listed impairment or its
equivalent, the Commissioner’s analysis proceeds to steps four and five. Id.
APrior to step four, the ALJ must assess the claimant=s residual functioning
capacity (>RFC=), which is the most a claimant can do despite her limitations.@
Moore, 572 F.3d at 523 (citing 20 C.F.R. ' 404.1545(a)(1)).
“RFC is an
administrative assessment of the extent to which an individual’s medically
determinable impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations or restrictions that may affect his or her
capacity to do work-related physical and mental activities.” Social Security Ruling
(SSR) 96-8p, 1996 WL 374184, *2. “[A] claimant’s RFC [is] based on all relevant
evidence, including the medical records, observations by treating physicians and
others, and an individual’s own description of [her] limitations.” Moore, 572 F.3d at
523 (quotation marks and citation omitted).
In determining a claimant’s RFC, the ALJ must evaluate the claimant’s
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002). This evaluation requires that the
ALJ consider “(1) the claimant’s daily activities; (2) the duration, intensity, and
frequency of the pain; (3) the precipitating and aggravating factors; (4) the
restrictions; (6) the claimant’s work history; and (7) the absence of objective
medical evidence to support the claimant’s complaints.” Buckner, 646 F.3d at 558
(quotation marks and citation omitted).
“Although ‘an ALJ may not discount a
claimant’s allegations of disabling pain solely because the objective medical
evidence does not fully support them,’ the ALJ may find that these allegations are
not credible ‘if there are inconsistencies in the evidence as a whole.’” Id. (quoting
Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005)). After considering the seven
factors, the ALJ must make express credibility determinations and set forth the
inconsistencies in the record which caused the ALJ to reject the claimant’s
complaints. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); Beckley v. Apfel,
152 F.3d 1056, 1059 (8th Cir. 1998).
At step four, the ALJ determines whether the claimant can return to her past
relevant work, “review[ing] [the claimant’s] [RFC] and the physical and mental
demands of the work [the claimant has] done in the past.”
The burden at step four remains with the claimant to prove her
RFC and establish that she cannot return to her past relevant work. Moore, 572
F.3d at 523; accord Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006);
Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to
past relevant work, the burden shifts at step five to the Commissioner to establish
that the claimant maintains the RFC to perform a significant number of jobs within
the national economy. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001); see
also 20 C.F.R. § 404.1520(f).
If the claimant is prevented by her impairment from doing any other work,
the ALJ will find the claimant to be disabled.
Plaintiff presents several interrelated questions for review. As relevant here,
inter alia, she argues the Appeals Council erred by denying review of the ALJ’s
decision after having considered Dr. Palepu’s Mental Impairment Questionnaire.
“When the Appeals Council denies review of an ALJ’s decision after reviewing new
evidence, [courts] ‘do not evaluate the Appeals Council’s decision to deny review,
but rather [they] determine whether the record as a whole, including the new
evidence, supports the ALJ’s determination.’”
McDade v. Astrue, 720 F.3d 994,
1000 (8th Cir. 2013) (quoting Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir.
2000)). Consequently, the question is whether the ALJ committed reversible error
by not reviewing, assessing the credibility of, and considering any credible opinions
gleaned from Dr. Palepu’s Mental Impairment Questionnaire.
undermines his determination that none of plaintiff’s mental impairments are
severe at Step 2. Even if that were not so, she also presses, the ALJ’s failure to
consider Dr. Palepu’s opinion obviates his RFC assessment that plaintiff has no
mental limitations caused by any severe or non-severe mental impairment, or
combination of such impairments.
Finally, according to plaintiff, that purportedly
flawed RFC undermines the ALJ’s determination at Step 5 that plaintiff can perform
other work, because that finding was based on a concomitantly flawed hypothetical
posed to the vocational expert, which included no such mental limitations.
Defendant counters that the failure to consider Dr. Palepu’s opinion does not
Addressing only the merits of the doctor’s opinion, defendant
concedes it is “new and material” evidence, which in turn requires the Court to
examine it here. See id. (citing 20 C.F.R. § 404.970(b), and Perks v. Astrue, 687
F.3d 1086, 1093 (8th Cir. 2012)); Hepp v. Astrue, 511 F.3d 798, 808 (8th Cir.
2008); Krogmeier v. Barnhart, 294 F.3d 1019, 1025 (8th Cir. 2002). Relying on
McDade, defendant contends reversal is not required because, if the ALJ had
considered Dr. Palepu’s opinion, he might have determined it was less than fully
credible—and thus not entitled to controlling weight—for myriad reasons that may
have been legally sufficient.
But McDade does not hold as much.
McDade, the Eighth Circuit concluded, “the ALJ’s determination was supported by
the records as a whole, including the post-hearing evidence,” the opinion of the
claimant’s treating physician, because that opinion was “entirely consistent with the
ALJ’s determination” as to the claimant’s limitations. McDade, 720 F.3d at 1000.
Here, in contrast, Dr. Palepu opined that plaintiff has severe mental
impairments and is irritable, sad, and depressed, with poor insight and judgment.
Dr. Palepu noted plaintiff’s thoughts of suicide, mood disturbances,
difficulty thinking and concentrating, and paranoia.
He remarked that
she was easily distractible and suffers from impaired memory. Id.
According to Dr. Palepu, those symptoms would manifest even if plaintiff was
called upon to perform only unskilled work. Id. Specifically, among other things,
those symptoms would render plaintiff seriously limited in her ability to maintain
attention for two-hour segments, maintain an ordinary routine without supervision,
work in proximity to others without undue distraction, or perform at a consistent
Dr. Palepu also opined that plaintiff has moderate limitations in her activities
of daily living and moderate difficulty maintaining social functioning, with moderate
difficulty maintaining concentration, persistence, and pace. (Tr. 786) Dr. Palepu
additionally remarked that plaintiff had experienced one or two episodes of
decompensation within the last twelve months, each of at least two weeks in
duration. Id. Finally, Dr. Palepu opined that plaintiff’s impairments would cause
her to miss work about four days per month. (Tr. 788)
On their face and if adjudged fully credible, Dr. Palepu’s opinions are
inconsistent with the ALJ’s finding that plaintiff has no severe mental impairment,
singularly or in combination, at Step 2. Nor is Dr. Palepu’s opinion consistent with
the ALJ’s finding that plaintiff’s RFC is not cabined by any mental limitations.
Consequently, Dr. Palepu’s opinion also is not consistent with the ALJ’s hypothetical
to the vocational expert at Step 5, which incorporated that RFC.
Therefore, whether Dr. Palepu’s opinion is fully credible is a critical issue. Dr.
Palepu was plaintiff’s treating psychiatrist. “A treating physician’s opinions must be
considered along with the evidence as a whole . . . .” Krogmeier, 294 F.3d at 1023.
When a treating physician’s opinion is supported by proper medical testing, and is
not inconsistent with other substantial evidence in the record, the ALJ must give the
opinion controlling weight. Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012)
(citing 20 C.F.R. § 404.1527(c)(2)).
An examining physician’s opinion, however,
neither inherently or automatically has controlling weight, and “does not obviate
the need to evaluate the record as a whole.” Cline v. Colvin, 771 F.3d 1098, 1103
(8th Cir. 2014) (internal quotation marks and citations omitted).
“An ALJ may
discount or even disregard the opinion of a treating physician where other medical
assessments are supported by better or more thorough medical evidence, or where
a treating physician renders inconsistent opinions that undermine the credibility of
such opinions.” Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (quotation
marks and citation omitted). Moreover, an ALJ is “entitled to give less weight to”
the opinion of a treating doctor where the doctor’s opinion is “based largely on” the
plaintiff’s “subjective complaints rather than on objective medical evidence.”
McDade, 720 F.3d at 999 (quotation marks and citation omitted).
An ALJ may not substitute his own opinions for the opinions of medical
professionals. Ness v. Sullivan, 904 F.2d 432, 435 (8th Cir. 1990); see also PateFires, 564 F.3d at 946–47 (ALJs may not “play doctor”). However, an ALJ “need
not adopt the opinion of a physician on the ultimate issue of a claimant’s ability to
engage in substantial gainful employment.” Qualls v. Apfel, 158 F.3d 425, 428 (8th
Cir. 1998) (quotation marks and citation omitted). Ultimately, the ALJ must “give
good reasons” to explain the weight given the treating physician’s opinion.
C.F.R. § 404.1527(c)(2).
The Commissioner correctly points out that for any number of reasons the
ALJ could have considered Dr. Palepu’s opinion and determined it was less than
See, e.g., Wildman, 596 F.3d at 964.
Having considered and
rejected some or even all of Dr. Palepu’s opinions based on such findings, the ALJ in
turn might have drawn the same conclusions at Steps 2 through 5.
Commissioner fails to acknowledge that the ALJ in fact made no such credibility
determination, because he never considered Dr. Palepu’s opinion. Of course, that
also means the ALJ did not offer any explanation for affording the doctor’s opinion
less than controlling weight. See 20 C.F.R. § 404.1527(c)(2); Pate-Fires, 564 F.3d
at 946–47; Ness, 904 F.2d at 435.
Further, the Court is forbidden from stepping into the ALJ’s shoes to shore up
his opinion by making such credibility determinations in the first instance, even if
the law might have amply supported such findings if made by the ALJ.
Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004) (“We will not substitute
our opinion for that of the ALJ, who is in a better position to assess credibility.”). In
other words, contrary to the Commissioner’s suggestion, the Court cannot here first
render a credibility determination never made by the ALJ and then affirm its own
finding. Because the Court is foreclosed from taking the first step, it cannot affirm
This also explains why the ALJ’s failure to make any credibility
determination with respect to the opinion of plaintiff’s treating psychiatrist cannot
be harmless error.
See Brueggemann v. Barnhart, 348 F.3d 689, 695 (8th Cir.
2003) (explaining harmless error).
Therefore, the Court can affirm the ALJ only if his decision would stand were
Dr. Palepu’s opinions both fully credible and assigned controlling weight. But, as
explained, if Dr. Palepu’s opinions were so treated, the ALJ could not have found
that plaintiff does not have any severe mental impairment at Step 2. See 20 C.F.R.
§§ 416.920(a)(4)(ii), 416.920(c), 416.921, 416.923; Pate-Fires, 564 F.3d at 942
(explaining severe impairments).
Nor in such circumstances could the ALJ have
formulated an RFC that included no provision for any mental limitations that reduce
plaintiff’s ability to perform some types of unskilled work. See Kemp ex rel. Kemp
v. Colvin, 743 F.3d 630, 632 (8th Cir. 2014) (explaining the RFC determination in
the context of mental impairments); Martise v. Astrue, 641 F.3d 909, 923 (8th Cir.
Consequently, the ALJ could not have relied on the vocational expert’s
hypothetical, which did not include any mental limitations, as substantial evidence
at Step 5. See Gieseke v. Colvin, 770 F.3d 1186, 1189 (8th Cir. 2014); Buckner,
646 F.3d at 561 (explaining that, for a vocational expert’s opinion to constitute
substantial evidence at Step 5, an ALJ’s hypothetical must have “captured all of the
concrete consequences of” a claimant’s “credible impairments” (quotation marks,
bracketing, and citation omitted)); see also 20 C.F.R. § 404.1568(a) (defining
As a result, the Court must reverse and remand for the ALJ to
consider Dr. Palepu’s opinion in the first instance. See Whitney v. Astrue, 668 F.3d
1004, 1005–06 (8th Cir. 2012); Chunn v. Barnhart, 397 F.3d 667, 672 (8th Cir.
2005) (remanding because an ALJ failed to make adequate findings with regard to a
For the reasons discussed above, the Court finds that the Commissioner’s
decision is not supported by substantial evidence in the record as a whole.
IT IS HEREBY ORDERED that the decision of the Commissioner is
reversed and the matter is remanded pursuant to the fourth sentence of 42
U.S.C. § 405(g) for further proceedings.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 9th day of September, 2016.
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