Ingle v. Colvin
MEMORANDUM OPINION re: 18 SOCIAL SECURITY REPLY BRIEF filed by Plaintiff Cassandra Ingle, 17 SOCIAL SECURITY CROSS BRIEF re 12 SOCIAL SECURITY BRIEF filed by Defendant Carolyn W. Colvin, 12 SOCIAL SECURITY BRIEF filed by Plaintiff Cassa ndra Ingle. For the reasons set forth above, the Court finds that the decision of the Commissioner involved a legal error and is not supported by substantial evidence. Accordingly,IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the Commissioner of Social Security is REVERSED and that this case is REMANDED under 42 U.S.C. § 1383(c)(3) and Sentence Four of 42 U.S.C. § 405(g) for reconsideration and further proceedings consistent with this opinion. Signed by Magistrate Judge Shirley Padmore Mensah on 9/27/17. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Case No. 1:16-cv-00053-SPM
This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final
decision of Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, denying
the application of Plaintiff Cassandra Ingle (“Plaintiff”) for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and for Supplemental Security
Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq. (the “Act”).
The parties consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C.
§ 636(c). (Doc. 7). Because I find that the decision involved legal error and was not supported by
substantial evidence, I will reverse the Commissioner’s denial of Plaintiff’s application and
remand the case for further proceedings.
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken
to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
At the hearings before the ALJ on August 22, 2013, and March 13, 2014, Plaintiff testified
as follows. She has two to three seizures a month, with residual symptoms of dizziness, weakness,
and wanting to sleep all the time. (Tr. 99). She stated that after she has a seizure, she usually sleeps
for roughly 24 hours, and she has memory problems. (Tr. 46). She suffers from bipolar disorder
and anxiety attacks and has mood swings. (Tr. 100). She has visual and auditory hallucinations.
(Tr. 32-33). She gets migraine headaches at least ten times a month. (Tr. 38, 92). She has neck and
back pain “all the time,” arthritis in her hands, numbness, and tingling. (Tr. 43-45). She stated that
she can only be up and about for fifteen minutes before taking a break. (Tr. 42, 95). She can sit for
roughly 30 minutes at a time, if she is able to shift positions. (Tr. 42).
The medical evidence dated after Plaintiff’s alleged disability onset date shows that she
sought emergency room treatment for seizures on several occasions (Tr. 661-62, 868, 842-43, 704,
812, 777, 766, 756, 908-09, 981); that she sought treatment for anxiety and panic attacks (Tr. 80102, 833-34); that she sought treatment from a neurologist for her seizures (Tr. 676, 929-30); that
she sought treatment for migraine headaches (Tr. 693-94, 676, 929-30); that she sought treatment
for panic attacks and anxiety (Tr. 802, 833-34, 945-47, 957-60, 949-51); that she was assigned
Global Assessment of Functioning (“GAF”) scores ranging from 36 to 55 2 (Tr. 947, 960, 951);
The Global Assessment of Functioning Scale (GAF) is a psychological assessment tool wherein
an examiner is to “[c]onsider psychological, social, and occupational functioning on a hypothetical
continuum of mental health-illness”; it does “not include impairment in functioning due to physical
(or environmental) limitations.” Diagnostic and Statistical Manual of Mental Disorders (DSMIV), 32 (4th ed. 1994). A GAF score between 31 and 40 indicates “[s]ome impairment in reality
testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major
impairment in several areas, such as work or school, family relations, judgment, thinking, or mood
(e.g., depressed man avoid friends, neglects family, and is unable to work; child frequently beats
up younger children, is defiant at home, and is failing at school).” DSM-IV 32. A GAF score
between 41 and 50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional
and that she had severe, multi-level degenerative disc disease in the cervical spine (Tr. 920). Her
diagnoses included pseudo-seizure, epilepsy, and other seizure-related disorders (Tr. 584, 662,
676-77, 708, 779, 814, 870, 908, 980); back pain with possible degenerative disc disease (Tr. 93031); migraine headache (Tr. 597, 693), panic attack/anxiety disorder (Tr. 802, 834); bipolar
disorder (Tr. 947, 957-60); psychotic disorder NOS (Tr. 951); and polysubstance dependence (Tr.
On September 23, 2013, Plaintiff’s treating neurologist, Dr. Shahid Choudhary, noted that
Plaintiff had a positive straight leg raise test; cervical, thoracic, and lumbar pain with touch and
palpitation, and an anxious and nervous appearance. (Tr. 930). Dr. Choudhary opined that Plaintiff
could lift and carry up to 10 pounds continuously and 20 pounds occasionally; sit for two hours at
a time and for up to six hours of an eight-hour workday; stand for one hour at a time and for up to
two hours of an eight-hour workday; walk for 30 minutes at a time and for up to one hour of an
eight-hour workday; do occasional pushing and pulling; do frequent reaching, handling, fingering,
feeling, and operation of foot controls; never climb ladders, scaffolds, stairs, and ramps;
occasionally balance, stoop, kneel, crouch, and crawl; never have exposure to unprotected heights
or moving mechanical parts; never operate a motor vehicle; have occasional exposure to humidity
and wetness, dust, odors, fumes, and pulmonary irritants, extreme cold or heat, and vibrations; and
have moderate exposure to noise. (Tr. 938-42).
rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job).” DSM-IV 32. A GAF score between 51 and
60 indicates “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers).” DSM-IV 32.
On January 24, 2014, psychiatrist Dr. Salazar evaluated Plaintiff as part of her treatment
and found that her mood was anxious, her thought process was tangential and at times incoherent,
she had visual and auditory hallucinations, and her judgment and insight were poor; other
observations were generally normal. (Tr. 949-50). Dr. Salazar assigned a GAF of 45 (indicating
serious symptoms or impairments), and his diagnoses included psychotic disorder NOS,
polysubstance abuse, and R/O borderline intellectual functioning. (Tr. 951).
On August 13, 2014, Plaintiff underwent a psychological consultative examination by
Amber Richardson, Ph.D. (Tr. 1010). Dr. Richardson noted that Plaintiff described severe mood
swings, panic attacks when she goes to the grocery store, continuous nightmares, difficulty
sleeping, and seeing and hearing spirits. (Tr. 1010). Dr. Richardson noted that Plaintiff reported
experiencing seizures five or six times a month. (Tr. 1011). Plaintiff reported a history of
marijuana, crack cocaine, and methamphetamine use, but stated that she had not used
methamphetamines in a few months. (Tr. 1011). Dr. Richardson noted that Plaintiff had poor
boundaries, appeared anxious and depressed, had thought content that was paranoid at times, and
appeared to be experiencing visual hallucinations during the examination. (Tr. 1012). She found
that Plaintiff “appears to experience perceptual disturbances on a frequent basis regardless of any
issues with mood related symptoms” and that she “experiences moderate impairment in her ability
to sustain attention and persistence in tasks and interact socially.” (Tr. 1012). Dr. Richardson
opined that due to Plaintiff’s paranoid ideation and internal stimuli, Plaintiff was moderately
limited in her ability to make judgments on complex work-related decisions; interact appropriately
with the public, supervisors, and coworkers; and respond appropriately to usual work situations
and to changes in a routine work setting. (Tr. 1014-15). She also stated that Plaintiff would be
limited regarding her “attention abilities as she may be distracted by perceptual disturbances.” (Tr.
Mark Farber, M.D., testified at the hearing before the ALJ that Plaintiff’s impairments
include a profuse bulging disc at C-4-5-6 that might be causing her headaches; degenerative disc
disease of all the cervical discs; herniated discs at L4-5, and degenerative changes of the lumbar
and thoracic spine. (Tr. 104-106). He also testified that he was not sure that seizures were really
what Plaintiff was having, and that she “might have some sort of pseudoseizure.” (Tr. 106).
John Pollard, M.D., reviewed Plaintiff’s medical records and testified at the hearing that
Plaintiff’s problems included seizures, headaches, back and neck pain, chronic obstructive
pulmonary disease, and bipolar disorder. (Tr. 52-53, 55-56). Dr. Pollard stated that Plaintiff
appeared to have some true seizures and some pseudoseizures. (Tr. 59-62). He also stated that
based on the record, there was no way to judge how frequently she was having true seizures. (Tr.
61). He stated that she would not meet or equal the listing applicable to seizures, which requires
seizures to be epileptic. (Tr. 60-62). Dr. Pollard testified that based on the frequency of the seizures
he saw within the record, Plaintiff could possibly be expected to miss two to three days of work
per month. (Tr. 62).
Psychological expert Thomas England, Ph.D., reviewed Plaintiff’s medical records and
testified at the hearing. Dr. England testified that it appeared to him that Plaintiff’s seizures were
likely the result of a somatoform disorder, but that it would be helpful to have a diagnosis from
Plaintiff’s treating physician. (Tr. 65, 72). He also testified that substance abuse was a
complicating factor in assessing Plaintiff’s impairments. (Tr. 69-72, 74).
On September 27, 2011, Plaintiff applied for DIB and SSI, alleging that she had been
unable to work since April 28, 2011. (Tr. 317-23, 324-30). Her application was initially denied.
(Tr.186-90). On December 16, 2011, she filed a Request for Hearing by Administrative Law Judge
(“ALJ”). (Tr. 191-92). On September 25, 2014, following two hearings, the ALJ found Plaintiff
was not under a “disability” as defined in the Act. (Tr. 12-22). On November 7, 2014, Plaintiff
filed a Request for Review of Hearing Decision with the Social Security Administration’s Appeals
Council. (Tr. 6-8). On January 19, 2016, the Appeals Council declined to review the case. (Tr. 15). Plaintiff has exhausted all administrative remedies, and the decision of the ALJ stands as the
final decision of the Commissioner of the Social Security Administration.
STANDARD FOR DETERMINING DISABILITY UNDER THE ACT
To be eligible for benefits under the Social Security Act, a claimant must prove he or she
is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Sec’y of Health
& Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Social Security Act defines as disabled
a person who is unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
423(d)(1)(A); 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). The
impairment must be “of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he
would be hired if he applied for work.” 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B).
To determine whether a claimant is disabled, the Commissioner engages in a five-step
evaluation process. 20 C.F.R. §§ 404.1520(a), 416.920(a); see also McCoy v. Astrue, 648 F.3d
605, 611 (8th Cir. 2011) (discussing the five-step process). At Step One, the Commissioner
determines whether the claimant is currently engaging in “substantial gainful activity”; if so, then
he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i); McCoy, 648 F.3d at 611. At
Step Two, the Commissioner determines whether the claimant has a severe impairment, which is
“any impairment or combination of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities”; if the claimant does not have a severe
impairment, he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c), 416.920(a)(4)(ii),
416.920(c); McCoy, 648 F.3d at 611. At Step Three, the Commissioner evaluates whether the
claimant’s impairment meets or equals one of the impairments listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1 (the “listings”). 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); McCoy, 648
F.3d at 611. If the claimant has such an impairment, the Commissioner will find the claimant
disabled; if not, the Commissioner proceeds with the rest of the five-step process. 20 C.F.R. §§
404.1520(d), 416.920(d); McCoy, 648 F.3d at 611.
Prior to Step Four, the Commissioner must assess the claimant’s “residual functional
capacity” (“RFC”), which is “the most a claimant can do despite [his or her] limitations.” Moore
v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)); see also 20 C.F.R.
§§ 404.1520(e), 416.920(e). At Step Four, the Commissioner determines whether the claimant can
return to his past relevant work, by comparing the claimant’s RFC with the physical and mental
demands of the claimant’s past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f),
416.920(a)(4)(iv), 416.920(f); McCoy, 648 F.3d at 611. If the claimant can perform his past
relevant work, he is not disabled; if the claimant cannot, the analysis proceeds to the next step. Id.
At Step Five, the Commissioner considers the claimant’s RFC, age, education, and work
experience to determine whether the claimant can make an adjustment to other work in the national
economy; if the claimant cannot make an adjustment to other work, the claimant will be found
disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); McCoy, 648 F.3d at 611.
Through Step Four, the burden remains with the claimant to prove that he is disabled.
Moore, 572 F.3d at 523. At Step Five, the burden shifts to the Commissioner to establish that,
given the claimant’s RFC, age, education, and work experience, there are a significant number of
other jobs in the national economy that the claimant can perform. Id.; Brock v. Astrue, 674 F.3d
1062, 1064 (8th Cir. 2012).
THE ALJ’S DECISION
Applying the foregoing five-step analysis, the ALJ here found that Plaintiff had not
engaged in substantial gainful activity since April 28, 2011, the alleged onset date; that Plaintiff
had the severe impairments of a seizure disorder, degenerative disc disease of the cervical and
lumbar spines, headaches, chronic obstructive pulmonary disease (COPD), a psychotic disorder
not otherwise specified, and polysubstance abuse; and that Plaintiff did 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. § 404, Subpart P, Appendix 1. (Tr. 14-15). The ALJ found that Plaintiff
had the RFC to perform light work, except that she must avoid ladders, ropes and scaffolds; must
avoid work around unprotected heights or dangerous machinery; must avoid operation of motor
vehicles; must avoid concentrated exposure to temperature extremes; could only occasionally
climb ramps or stairs, stoop, bend, crouch, or crawl; and was limited to simple and/or repetitive
jobs that do not require close interaction with the public or teamwork such as with coworkers. (Tr.
16). The ALJ found that Plaintiff was unable to perform any of her past relevant work. (Tr. 20).
However, relying on the testimony of a vocational expert, the ALJ found that Plaintiff would be
able to perform occupations including office cleaner and small parts assembler. (Tr. 21-22). The
ALJ concluded that Plaintiff had not been under a disability, as defined in the Act, from April 28,
2011 through the date of his decision. (Tr. 22).
Plaintiff challenges the ALJ’s decision on two grounds: (1) that the ALJ erred by
discounting the opinion of Dr. Pollard regarding the effects of Plaintiff’s seizure impairment and
by failing to develop the record with regard to Plaintiff’s seizure impairment; and (2) that ALJ’s
decision is not supported by substantial evidence, because neither the RFC nor the hypothetical
question posed to the vocational expert accounted for Plaintiff’s moderate limitations in
concentration, persistence, and pace or for her difficulties in responding appropriately to usual
work situations and to changes in a routine work setting.
A. Standard for Judicial Review
The decision of the Commissioner must be affirmed if it complies with the relevant legal
requirements and is supported by substantial evidence in the record as a whole. See 42 U.S.C.
§§ 405(g); 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 401 (1971); Pate-Fires v. Astrue, 564
F.3d 935, 942 (8th Cir. 2009); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002). “Substantial
evidence ‘is less than a preponderance, but enough that a reasonable mind might accept as adequate
to support a conclusion.’” Renstrom v. Astrue, 680 F.3d 1057, 1063 (8th Cir. 2012) (quoting
Moore, 572 F.3d at 522). In determining whether substantial evidence supports the
Commissioner’s decision, the court considers both evidence that supports that decision and
evidence that detracts from that decision. Id. However, the court “‘do[es] not reweigh the evidence
presented to the ALJ, and [it] defer[s] to the ALJ’s determinations regarding the credibility of
testimony, as long as those determinations are supported by good reasons and substantial
evidence.’” Id. at 1064 (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006)). “If,
after reviewing the record, the court finds it is possible to draw two inconsistent positions from the
evidence and one of those positions represents the ALJ’s findings, the court must affirm the ALJ’s
decision.” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting Goff v. Barnhart, 421 F.3d
785, 789 (8th Cir. 2005)).
B. The ALJ’s Evaluation of Dr. Pollard’s Opinion and the ALJ’s
Development of the Record Regarding Plaintiff’s Seizures
The Court first considers Plaintiff’s argument that the ALJ erred by discounting the opinion
of Dr. Pollard regarding Plaintiff’s seizure impairment and by failing to develop the record with
regard to Plaintiff’s seizure impairment. At the hearing, Dr. Pollard testified that based on the
frequency of the seizures he saw within the record, Plaintiff could possibly be expected to miss
two to three days of work per month. (Tr. 62). The vocational expert stated that if a hypothetical
individual with Plaintiff’s limitations regularly missed two or more days of work each month, she
could not perform any work. (Tr. 81).
In discussing the frequency of Plaintiff’s seizures, the ALJ stated:
The conclusion of Dr. Pollard that the claimant’s frequency of seizures could be
expected to result in work absenteeism 2 days per month is not accepted as there is
no medical evidence of seizure activity on EEG or CT scan of the head. The
claimant’s seizures are typically associated with lack of medical compliance
regarding prescribed medication and directed abstinence from substance abuse for
headaches, CT scans of the head are repeatedly negative. Therefore, if the claimant
is abstinent from substance abuse and compliant with directed medical therapy, it
is presumed that she will not have seizure-like activity resulting in work
absenteeism 2 days per month.
(Tr. 20). The ALJ also mentioned later in his decision that “seizure-like activity appears to be
associated with noncompliance with medical therapy and continued substance abuse.” Id. at 20.
It is clear from the above that the ALJ’s determination that Plaintiff would not be expected
to miss work two or more days a month due to her seizures, and his decision to discount Dr.
Pollard’s opinion regarding Plaintiff’s seizures, were based at least in significant part on the ALJ’s
belief that some of Plaintiff’s seizures or related symptoms were caused by her substance abuse.
After review of the record and the ALJ’s decision, it does not appear that the ALJ properly
followed Eighth Circuit law and Social Security Administration regulations for making a disability
determination when substance abuse is a factor.
Under the 1996 amendments to the Social Security Act, an individual is not considered
disabled “if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor
material to the Commissioner’s determination that the individual is disabled.” 42 U.S.C.
§ 423(d)(2)(C); see also Brueggemann v. Barnhart, 348 F.3d 689, 693 (8th Cir. 2003). In
Brueggemann, the Eighth Circuit outlined in detail the procedures the ALJ must follow, under the
relevant regulations, in analyzing substance-related disability claims. Id. at 693-95 (discussing 20
C.F.R. § 404.1535); see also 20 C.F.R. § 416.935. First, the ALJ must “determine whether [the
claimant] is disabled. The ALJ must reach this determination initially . . . using the standard fivestep approach described in 20 C.F.R. § 404.1520 without segregating out any effects that might be
due to substance use disorders.” Id. at 694. This disability determination must be made “without
deductions for the assumed effects of substance disorders.” Id. If all of the claimant’s limitations,
“including the effects of substance abuse disorders,” show disability, “then the ALJ must next
consider which limitations would remain when the effects of the substance use disorders are
absent.” Id. at 694-95. “Even though the task is difficult, the ALJ must develop a full and fair
record and support his conclusion with substantial evidence on this point just as he would on any
other.” Id. at 695. “Only after the ALJ has made an initial determination 1) that [the claimant] is
disabled, 2) that drug or alcohol use is a concern, and 3) that substantial evidence on the record
shows what limitations would remain in the absence of alcoholism or drug addiction, may he then
reach a conclusion on whether [the claimant’s] substance use disorders are a contributing factor
material to the determination of disability.” Id. If the ALJ cannot determine whether the substance
use disorders are a material contributing factor, the ALJ must award benefits. Id. See also Kluesner
v. Astrue, 607 F.3d 533, 537 (8th Cir. 2010) (describing the procedure for assessing the effect of
substance use on disability claims).
Courts have found that a failure to follow the procedures prescribed by the regulations may
constitute reversible legal error. See Brueggemann, 348 F.3d 689, 693-95 (8th Cir. 2003) (finding
reversible legal error where ALJ gave little weight to a physician opinion because of a claimant’s
alcohol use and did not conduct the analysis required by the regulations; finding the error was not
harmless because there was reliable evidence of disability independent of alcohol abuse);
Patterson v. Colvin, No. 2:15-CV-75-JMB, 2016 WL 7242157, at *7 (E.D. Mo. Dec. 15, 2016)
(finding reversible error where “[t]he ALJ did not first determine whether Plaintiff was disabled
with the effects of alcoholism included,” but rather “addresses, and, to an extent, discounts the
effects of alcohol in a piecemeal fashion”; noting that “the legal error in failing to acknowledge
and follow the regulations concerning alcohol dependence deprives the ALJ’s decision of
substantial evidentiary support”). However, courts may find the legal error harmless where it is
clear from the record that the plaintiff’s substance abuse caused his or her impairments. See, e.g.,
Watkins v. Astrue, No. CIV. 09-5064-RHB, 2010 WL 3360428, at *4 (D.S.D. Aug. 23, 2010)
(finding ALJ’s failure to analyze plaintiff’s substance abuse under the relevant regulation harmless
because “there is no evidence in the record that would indicate that [the plaintiff] suffers from any
impairment or combination of impairments that, independent of his alcoholism, render him
The Court finds that the ALJ in this case erred by not conducting the analysis required by
Brueggemann and the relevant regulations. It is undisputed that Plaintiff had polysubstance abuse
disorder. (Tr. 14). It is also clear from the ALJ’s decision that he viewed Plaintiff’s polysubstance
abuse disorder as a significant factor affecting her symptoms, including her seizures. However, the
ALJ did not conduct the analysis set forth in Brueggemann and the regulations, but instead
discounted her particular symptoms based on the effects of substance use as he was making his
RFC finding. This was legal error.
The Court cannot say that the ALJ’s legal error was harmless in this case. Although the
record suggests that substance abuse may have contributed to Plaintiff’s seizures and other
symptoms, there is also significant evidence of seizures or pseudoseizures that are not obviously
associated with substance abuse. On the current record, it is not clear what limitations would
remain absent Plaintiff’s substance abuse, and whether those limitations would be disabling.
The Court acknowledges that the ALJ offered some other reasons for his finding with
regard to the frequency of Plaintiff’s seizures—the normal CT and EEG findings and the evidence
of noncompliance with recommended treatment. However, it is not clear from the record or the
ALJ’s analysis whether those reasons, standing apart from the ALJ’s findings with regard to
substance use, would have supported the ALJ’s conclusions with regard to Plaintiffs’ seizures. In
addition, it is unclear how the ALJ determined that Plaintiff’s normal EEGs and CT scans would
support the ALJ’s finding that her seizures or pseudoseizures were less frequent (or would cause
her to leave work less frequently) than Dr. Pollard found they would. Plaintiff’s neurologist, Dr.
Choudhary, noted that “normal EEG does not preclude the possibility of seizures.” (Tr. 691). It is
not apparent to the court why the ALJ found that normal EEGs and CT scans would suggest that
Plaintiff’s seizures (or pseudoseizures) were not as frequent as she and her doctors indicated they
For all of the above reasons, remand is required. On remand, the ALJ should conduct the
analysis required by the relevant regulations.
The Court will also briefly address Plaintiff’s argument that the ALJ has failed to
adequately develop the record with regard to Plaintiff’s seizures. Plaintiff argues that the ALJ
should have done more to develop the record with regard to the possibility that some of Plaintiff’s
seizure-like episodes were caused by somatoform disorder.
It is well-settled that “the ALJ bears a responsibility to develop the record fairly and fully,
independent of the claimant’s burden to press his case.” Snead v. Barnhart, 360 F.3d 834, 838 (8th
Cir. 2004) (citing Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000), and Landess v. Weinberger,
490 F.2d 1187, 1188 (8th Cir. 1974)). The ALJ’s duty extends even to cases where the claimant is
represented by an attorney at the administrative hearing. Id. (citing Warner v. Heckler, 722 F.2d
428, 431 (8th Cir. 1983)). “An ALJ is required to obtain additional medical evidence if the existing
medical evidence is not a sufficient basis for a decision.” Nader v. Shalala, 22 F.3d 186, 189 (8th
Cir. 1994). However, “an ALJ is permitted to issue a decision without obtaining additional medical
evidence so long as other evidence in the record provides a sufficient basis for the ALJ’s decision.”
Id. Accord Haley v. Massanari, 258 F.3d 742, 749-50 (8th Cir. 2001). The duty to develop the
record “is not never-ending and an ALJ is not required to disprove every possible impairment.”
McCoy v. Astrue, 648 F.3d 605, 612 (8th Cir. 2011) (citing Barrett v. Shalala, 38 F.3d 1019, 1023
(8th Cir. 1994). “There is no bright line rule indicating when the Commissioner has or has not
adequately developed the record; rather, such an assessment is made on a case-by-case basis.”
Mouser v. Astrue, 545 F.3d 634, 639 (8th Cir. 2008) (citing Battles v. Shalala, 36 F.3d 43, 45 (8th
After review of the record, the Court cannot say that the ALJ failed to develop the record
in this case by not developing additional evidence related to somatoform disorder. A diagnosis of
somatoform disorder was not mentioned in Plaintiff’s extensive treatment notes. At the hearing,
psychological expert Dr. England testified that after reviewing the record, it seemed likely that
Plaintiff had a somatoform disorder causing her seizures, and that he “would really like to have in
this case the primary [t]reating psychiatric physician, Dr. Salazar, to evaluate that.” (Tr. 65). He
testified that if Dr. Salazar was not responsive, a one-time consultative examination might be of
some help. (Tr. 75). The ALJ gave Plaintiff’s attorney time to contact Dr. Salazar to find out
whether he would do a review, and Plaintiff’s counsel stated that he would follow up with Dr.
Salazar. (Tr. 78-80). The ALJ also noted that if Dr. Salazar was uncooperative, he did not know
of any psychiatrists that would do a consultative examination at the ALJ’s request, and that he
thought it was probably “almost impossible that [he] could get a psychiatrist to do one.” (Tr. 75,
78). Plaintiff’s attorney ultimately wrote a letter to the ALJ stating that Dr. Salazar had not returned
his calls and had informed Plaintiff that he did not feel he had a sufficient history at this point to
opine on her diagnoses. (Tr. 424). The ALJ did refer Plaintiff to a consulting psychologist, Dr.
Richardson, though her report did not address the cause of Plaintiff’s seizures. (Tr. 1010-12).
It is unclear what more the ALJ could have done here to develop the record with respect to
a possible somatoform disorder. It is also unclear what the ALJ could do if the Court were to
remand the case for him to further develop the record on this point. Moreover, in light of the
absence of discussion of somatoform disorder in Plaintiff’s treatment notes, it was not
unreasonable for the ALJ to decide that he could make a determination about Plaintiff’s symptoms
and limitations without developing additional evidence of that disorder. On these facts, the Court
finds no failure to develop the record that would independently warrant remand. However, the
Court makes no finding with regard to whether the record has been fully developed on the question
of what effect substance use had on Plaintiff’s seizures or other symptoms. On remand, the ALJ
should ensure that he has a full and fair record on that point. See Brueggemann, 348 F.3d at 695
(“Even though the task is difficult, the ALJ must develop a full and fair record and support his
conclusion with substantial evidence on this point just as he would on any other.”).
C. Plaintiff’s Limitations in Attention, Concentration, Persistence, Pace, and
Ability to Deal With Work Situations
Plaintiff’s second argument is that ALJ’s decision is not supported by substantial evidence,
because neither the RFC nor the hypothetical question posed to the vocational expert accounted
for Plaintiff’s limitations in attention, concentration, persistence, pace, the ability to deal with work
situations, and the ability to deal with routine changes in the work setting. Plaintiff argues that in
light of the record evidence—in particular the opinion of Dr. Richardson, which the ALJ indicated
that he accepted, the ALJ should have included additional limitations in the RFC and in the
hypothetical question posed to the vocational expert.
The Court first notes that that there is no clear rule in the case law concerning whether
limitations similar to a limitation to “simple and/or repetitive” jobs adequately account for
difficulties in concentration, persistence, or pace; it is a fact-specific question. Compare, e.g.,
Newton v. Chater, 92 F.3d 688, 695 (8th Cir. 1996) (holding that a limitation to “simple jobs” in
the hypothetical question did not adequately account for moderate deficiencies in concentration,
persistence, or pace reflected in the record), and Denney v. Colvin, No. 4:14-CV-879-MDH, 2016
WL 901695, at *2 (holding that a limitation to “simple, routine, repetitive unskilled work tasks”
with only occasional interaction with coworkers did not adequately account for the plaintiff’s “at
least ‘moderate’ difficulties” in the ability to maintain attention and concentration for extended
periods of time; stating, “[c]ourts have held that limitations to simple, routine, repetitive and/or
unskilled work do not sufficiently account for the moderate limitations in concentration,
persistence, or pace . . .”), with Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001) (holding
that a limitation to “simple, routine, repetitive work” adequately accounted for moderate
limitations in concentration, persistence, or pace, where a functional capacity assessment
performed by a doctor indicated that the claimant could sustain sufficient concentration and
attention to perform at least simple, repetitive, and routine cognitive activity ), and Faint v. Colvin,
26 F. Supp. 3d 896, 911-12 (E.D. Mo. 2014) (distinguishing Newton and finding that on the facts
before the court, the evidence did not show that plaintiff’s moderate deficiencies in concentration,
persistence, and pace imposed limitations that would preclude the performance of simple,
After review of the specific facts of this case, it appears to the Court that the record supports
a finding of significant limitations in attention, persistence, concentration, and/or pace, and in
ability to deal with work situations and changes. However, it is unclear what findings the ALJ
made with regard to Plaintiff’s limitations in these areas. The only medical source who examined
and evaluated Plaintiff and offered a specific opinion about these issues was Dr. Richardson, an
examining clinical psychologist. Dr. Richardson noted that Plaintiff had paranoid thought content;
that she appeared to be experiencing visual hallucinations during her examination; that she had
poor boundaries; and that her judgment and insight were poor. (Tr. 1012). She opined that Plaintiff
“appears to experience perceptual disturbances on a frequent basis regardless of any issues with
mood related symptoms” and that she “experiences moderate impairment in her ability to sustain
attention and persistence in tasks and interact socially.” (Tr. 1012). Dr. Richardson also opined
that due to Plaintiff’s paranoid ideation and internal stimuli, Plaintiff had (among other limitations)
moderate limitations in her ability to respond appropriately to usual work situations and changes
in a work setting, as well as a limitation in her “attention abilities as she may be distracted by
perceptual disturbances.” (Tr. 1015). The notes from Plaintiff’s treating psychiatrist, Dr. Salazar,
are consistent with Dr. Richardson’s findings. Although Dr. Salazar did not offer an opinion about
Plaintiff’s work-related mental limitations, he noted that she had visual and auditory
hallucinations—the symptoms that underlay Dr. Richardson’s opinions about attention and
persistence—as well as a tangential and at times incoherent thought process, and poor judgment
and insight. (Tr. 949-50). Dr. Salazar also assigned Plaintiff a GAF of 45 (indicating “serious”
symptoms or “serious impairment in social, occupational, or school functioning”), and his
diagnoses included psychotic disorder NOS. (Tr. 951). That GAF score would appear to indicate
mental limitations more significant than those reflected in the RFC, and it is unclear whether the
ALJ considered it. 3
The ALJ did not explain why he was discounting Dr. Richardson’s findings with regard to
Plaintiff’s attention and persistence or her ability to respond to usual work situations or changes in
a work setting; indeed, the ALJ stated in his RFC analysis that he accepted the limitations in Dr.
Richardson’s opinion regarding Plaintiff’s limitations in social functioning and concentration,
persistence, and pace as being consistent with the diagnoses and clinical findings of Dr. Salazar.
(Tr. 20). The ALJ also did not identify other substantial evidence in the record supporting a
conclusion that Plaintiff did not have significant limitations in these areas.
The ALJ stated that “[t]he Global Assessment of Functioning scores as would suggest mental
disability are from nonmedical sources and not accepted due to lack of sufficient medical
expertise.” (Tr. 20). The ALJ was apparently referring to GAF scores in the record rather than to
the GAF score assigned by Dr. Salazar, who was Plaintiff’s treating psychiatrist and thus does
have the appropriate medical expertise to assign a GAF score.
The most persuasive evidence supporting the ALJ’s decision not to include these mental
limitations in the RFC is found in the Commissioner’s brief, in which the Commissioner suggests
that the hallucinations, paranoia, and racing thoughts that formed the basis for Dr. Richardson’s
opinions were the result of Plaintiff’s substance abuse and thus could not form the basis for a
finding of disability. See Def.’s Resp., at p. 8. However, the ALJ did not make such a finding.
Moreover, as discussed above, to the extent that the ALJ’s disability determination was based on
discounting certain symptoms because they were caused by Plaintiff’s substance abuse, the ALJ
erred by not conducting the analysis that is required by regulations and Eighth Circuit case law in
cases involving substance abuse. See Brueggemann, 348 F.3d at 693-95.
The Court also finds that on the facts of this case, Plaintiff’s limitations in attention,
concentration, persistence, pace, and ability to respond to work situations and changes in the
workplace do not appear to be adequately addressed by a limitation to “simple and/or repetitive
work” or a limitation on close interaction with the public or co-workers. The record indicates that
Plaintiff’s attention and persistence problems, and her problems in dealing with work situations,
were related to visual and auditory hallucinations brought on by schizophrenia or psychotic
disorder. If, as Dr. Richardson found, Plaintiff is experiencing “perceptual disturbances on a
frequent basis” based on visual and auditory hallucinations, it is unclear why that would not
interfere with her ability to pay attention and persist in even simple and/or repetitive work,
performed without close interactions with others. Moreover, the attention and persistence problems
are compounded by Plaintiff’s apparent difficulties in her ability to deal with work situations.
In sum, based on the current record, the Court cannot say that there is substantial evidence
to support the ALJ’s decision not to include additional mental limitations in the RFC or
hypothetical question posed to the VE that address Plaintiff’s limitations in attention,
concentration, persistence, pace, and ability to deal with work situations. In light of the uncertainty
regarding whether Plaintiff has limitations that were not included in the RFC or in the question
posed to the vocational expert, remand is appropriate. See Buckner v. Astrue, 646 F.3d 549, 561
(8th Cir. 2011) (“[W]hen a hypothetical question does not encompass all relevant impairments, the
vocational expert’s testimony does not constitute substantial evidence.”) (internal quotation marks
omitted). On remand, the ALJ should provide clarification regarding the weight he gives to the
opinions of Dr. Richardson; should make clear his findings about what limitations, if any, Plaintiff
has in attention, concentration, persistence, pace, and the ability to deal with work situations and
changes in work situations (and the evidence for those findings); and should ensure that the RFC
and the hypothetical question posed to the vocational expert includes any such limitations. To the
extent that the ALJ discounts certain symptoms in his analysis because they are caused by drug
use, he should do so only after conducting the analysis dictated by Brueggemann and the relevant
For the reasons set forth above, the Court finds that the decision of the Commissioner
involved a legal error and is not supported by substantial evidence. Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the
Commissioner of Social Security is REVERSED and that this case is REMANDED under 42
U.S.C. § 1383(c)(3) and Sentence Four of 42 U.S.C. § 405(g) for reconsideration and further
proceedings consistent with this opinion.
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 27th day of September, 2017.
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