Dunlap v. Astrue
MEMORANDUM re: 23 re 20 20 This case will be remanded to the Commissioner of Social Security for an award of benefits consistent with this memorandum opinion. An appropriate Judgment Order is issued herewith. Signed by District Judge Jean C. Hamilton on 3/6/13. cc: Bureau of Hearings and Appeals(CEL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CHELSEY R. DUNLAP,
CAROLYN W. COLVIN,1
Commissioner of Social Security,
No. 2:12 CV 14 JCH
This action is before the court for judicial review of the final decision of the defendant
Commissioner of Social Security denying the applications of plaintiff Chelsey R. Dunlap for child’s
disability insurance benefits under Title II of the Social Security Act (the Act), 42 U.S.C. § 401, et
seq., and for supplemental security income under Title XVI of that Act, § 1381, et seq. For the
reasons set forth below, the decision of the Administrative Law Judge is reversed and remanded for
Plaintiff Chelsey R. Dunlap was born on September 20, 1990. On April 16, 2009, she filed
applications for child’s disability benefits, based upon the account of a deceased wage earner, George
Dunlap, under Title II and Title XVI . (Tr. 109-18.) She alleges the onset date of her disability as
April 16, 2009, when she was 18, due to scoliosis, back problems, and attention deficit hyperactivity
On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social Security.
The court hereby substitutes Carolyn W. Colvin as defendant in her official capacity. F.R.Civ.P.
disorder. (Tr. 125, 140-48.) Plaintiff’s applications were denied initially on February 9, 2009, and
she requested a hearing before an ALJ. (Tr. 55-61.)
On February 23, 2011, following a hearing, the ALJ found plaintiff was not disabled. (Tr.
10-19.) On February 1, 2012, the Appeals Council denied plaintiff’s request for review. (Tr. 1-3.)
Thus, the decision of the ALJ stands as the final decision of the Commissioner.
II. MEDICAL HISTORY
On November 18, 2004, at age 14, plaintiff saw Daniel Hoernschemeyer, M.D., complaining
of mild back pain that increased in severity during activity. Dr. Hoernschemeyer assessed plaintiff
with adolescent idiopathic scoliosis. Plaintiff stated that scoliosis did not significantly limit her from
playing basketball, skating, or riding bicycles. Plaintiff and her mother discussed surgery with the
doctor. (Tr. 241-43.)
On December 30, 2004, plaintiff saw Jeffrey Cramp, D.O., to discuss her scheduled surgery,
and on January 4, 2005, Dr. Hoernschemeyer performed an anterior spinal release and fusion
procedure. On January 13, Dr. Hoernschemeyer performed posterior final fusion and segmental
instrumentation from T2 to L4,2 a right thoracoplasty,3 and autogenous bone graft procedures on
plaintiff. On January 14, plaintiff began physical therapy and complained that standing and walking
caused dizziness and back pain. Physical therapists Jamie Fessler and Beth Schukman informed her
The human spinal column consists of thirty-three vertebrae. There are seven cervical vertebrae
(denoted C1-C7), twelve thoracic vertebrae (denoted T1-T12), five lumbar vertebrae (denoted L1L5), five sacral vertebrae (denoted S1-S5 and fused together into one bone, the sacrum), and four
coccygeal vertebrae (fused together into one bone, the coccyx). The cervical vertebrae form part of
the neck, while the lumbar vertebrae form part of the low back. The sacrum is immediately below
the lumbar vertebrae. Stedman's Medical Dictionary, 2117-18 (28th ed., Lippincott Williams &
Wilkins 2006) (Stedman).
Thoracoplasty is an operation that corrects deformities of the chest wall. Stedman at 1982.
of several precautionary techniques for movement and recommended that she continue physical
therapy. On January 18, plaintiff was discharged with prescriptions of Percocet and Valium for pain.
On February 3, 2005, plaintiff was examined by Matthew Smith, M.D., as a follow-up to her
surgery. Plaintiff complained of shoulder blade pain but reported improved mobility. Dr. Smith
refilled her Valium prescription for the shoulder blade pain. (Tr. 245-47.)
On March 3, 2005, plaintiff saw Dr. Hoernschemeyer for another follow-up examination for
her surgery. She complained of acute pain in her spine and right shoulder. Dr. Hoernschemeyer
observed that her surgery wound had healed. He recommended that she take less Percocet, begin
taking Vicodin for pain, and increase her time spent at school from two hours per day to four hours
per day “as she wants.” (Tr. 267-69.)
On April 28, 2005, plaintiff reported pain in her left hip and numbness on her thigh. Her pain
had improved, and she asked whether she could play basketball. Dr. Hoernschemeyer advised
plaintiff to continue decreasing her Vicodin dosage. (Tr. 269-71.)
On August 11, 2005, plaintiff complained of numbness around her surgery incision, but no
longer reported numbness in her thigh. Dr. Hoernschemeyer noted that she was “making very good
progress.” (Tr. 273-75.)
On September 14, 2005, plaintiff complained that a bumpy truck ride caused pain in her right
Bending forward caused plaintiff pain, and her right lumbar area was tender.
Hoernschemeyer stated that she had no symptoms implicating her spine and assessed muscle pain.
On October 27, 2005, a nurse saw plaintiff to address Dr. Cramp’s observation of asymmetry
in plaintiff’s shoulders and noted plaintiff’s weight gain. Dr. Hoernschemeyer recommended that
she continue her back exercises, which the nurse reviewed with plaintiff. (Tr. 279-81.)
On April 20, 2006, plaintiff saw Raj Kakarlapudi, M.D., and had no complaints. Dr.
Kakarlapudi noted that plaintiff was “doing extremely well.” Dr. Hoernschemeyer recommended
that plaintiff decrease her weight. (Tr. 282-84.)
On September 14, 2006, plaintiff reported that she had pain in her right shoulder after
bending to lift her bag and hearing a popping sound. A nurse observed tenderness in her right
shoulder and opined that a muscle strain unrelated to her surgery caused the pain. The nurse
recommended physical therapy to strengthen her shoulder muscle and iontophoresis.4 The nurse also
recommended that plaintiff avoid carrying heavy school books. (Tr. 285-87.)
On February 4, 2008, plaintiff complained of intermittent pain in her low back and buttocks
that began two weeks earlier and increased when bending forward. Her right shoulder pain had
dissipated. Adam Bloemke, M.D., prescribed Percocet and recommended a spinal CT scan. (Tr.
On February 25, 2008, plaintiff underwent a spinal CT scan, but Michael Khazzam, M.D.,
could not find the cause of her back and buttock pain. (Tr. 291-93.)
On December 18, 2008, plaintiff complained that her low back pain increased after she lifted
an object. X-rays revealed no abnormalities. Matthew Jones, M.D., noted the possibility that the
lumbar spine fusion had failed. Dr. Jones discussed the treatment options of further surgery and
spinal injections with plaintiff. He also instructed that cigarette smoking could negatively affect her
spinal fusion and advised her to stop. (Tr. 294-96.)
Iontophoresis is the introduction into the tissues, by means of an electric current, of the ions of a
chosen medication. Stedman at 998.
On February 1, 2009, plaintiff went to the emergency room and complained of back pain that
began abruptly and lasted four hours. Plaintiff described the pain as severe and sharp and stated that
she could not bend. Henry David, M.D., prescribed Cyclobenzaprine and Naproxen.5 (Tr. 186-89.)
On February 3, 2009, plaintiff indicated that moving furniture caused abrupt back pain.
Plaintiff complained that her prescriptions did not relieve her pain. She was prescribed Percocet and
Flexeril.6 (Tr. 197.)
On March 2, 2009, at age 18, plaintiff reported continued severe back pain. She rated the
pain as 7 out of 10 and stated that lifting increased the pain. She stated that due to pain, she could
walk continuously for only thirty minutes and sit continuously for only twenty minutes. Plaintiff
continued to smoke half of a pack of cigarettes per day. X-rays and CT scans revealed a
degenerative spinal segment below the fusion as well as a loose screw. Daniel Babbel, M.D.,
planned to alleviate her pain with surgery. He advised plaintiff to quit smoking and told her that her
nicotine levels would be tested a week before surgery. Dr. Babbel prescribed Valium and a lumbar
corset. Plaintiff stated that she would not use a lumbar corset because it would cause discomfort.
On June 6, 2009, Ioan Dacila submitted a Physical Residual Functional Capacity Assessment
form regarding plaintiff. He found that plaintiff could occasionally lift twenty pounds, frequently
lift ten pounds, stand or walk about six hours in an eight-hour workday, and sit about six hours in
an eight-hour workday. He also found that plaintiff could only occasionally climb ramps or stairs,
Cyclobenzaprine is used short-term to treat muscle spasms.
http://www.webmd.com/drugs (last visited on March 6, 2013). Naproxen is used to relieve pain.
Flexeril is also known as Cyclobenzaprine. WebMD, http://www.webmd.com/drugs (last visited
on March 6, 2013).
balance, kneel, crouch or crawl, could never climb ladders, ropes, or scaffolds, and should avoid
concentrated exposure to vibrations.
Ioan Dacila found no evidence that attention deficit
hyperactivity disorder (ADHD) contributed to plaintiff’s lack of employment and that plaintiff could
perform jobs existing in significant numbers in the national economy. His opinions were summary
in nature. (Tr. 208-15.)
On August 20, 2009, Virginia Caputy, Ph.D, performed an initial assessment on plaintiff.
Plaintiff reported suffering from ADHD and thinking about her father who passed away when she
was ten years old. She felt angry and sad. Dr. Caputy diagnosed plaintiff with major depressive
disorder and ADHD and gave her a GAF score of 50.7 (Tr. 332-38.)
On February 3, 2010, plaintiff requested Xanax.8 She reported that she was smoking
marijuana eight to ten times a month. She claimed that she had tried her friend’s Xanax and that the
other medications she tried made her angry or suicidal. Nurse Andrea Earlywine’s impression was
that abandonment caused plaintiff’s depression and behavioral issues and that she abused drugs to
cope. Andrea Earlywine diagnosed plaintiff with mood disorder and gave her a GAF score of 50.
On April 5, 2010, plaintiff stated that she needed help with her anger and that she was always
A GAF score, short for Global Assessment of Functioning, helps summarize a patient's overall
ability to function. A GAF score has two components. The first component covers symptom severity
and the second component covers functioning. A patient's GAF score represents the worst of the two
A score from 41 to 50 represents serious symptoms (such as thoughts of suicide, severe
obsessional rituals, frequent shoplifting), or any serious impairment in social, occupational, or school
functioning (such as the inability to make friends or keep a job). American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders, 32–34 (4th ed. 2000) (“DSM-IV-TR”).
Xanax is used to treat anxiety and panic disorders. WebMD, http://www.webmd.com/drugs (last
visited on March 6, 2013).
angry or sad. She reported breaking things and punching herself in the face. Andrea Earlywine
prescribed Invega and gave a GAF score of 50.9 (Tr. 346.)
On May 17, 2010, plaintiff stated that her anger problems had improved. She rated her
depression as 7 out 10. Andrea Earlywine discontinued Invega because it caused lactation and
prescribed Paxil and Tegretol.10 Plaintiff received a GAF score of 52.11 (Tr. 317.)
On June 24, 2010, plaintiff complained that Paxil caused anger and Tegretol caused nausea.
She rated her level of depression as 5 or 6 out of 10. Andrea Earlywine discontinued Paxil and
Tegretol and prescribed Depakote and Buspar.12 Plaintiff received a GAF score of 54. (Tr. 318.)
On July 23, 2010, plaintiff stated that Buspar caused shakiness and nausea and Depakote
caused nausea. She reported anger problems, including tearing, punching, and fighting with her
boyfriend. Andrea Earlywine diagnosed plaintiff with bipolar II disorder and discontinued Buspar.
Plaintiff received a GAF score of 54. (Tr. 319.)
On September 17, 2010, plaintiff reported struggling with anxiety attacks that turned into
Invega is used to treat certain mental or mood disorders. WebMD, http://www.webmd.com/drugs
(last visited on March 6, 2013).
Paxil is used to treat depression, panic attacks, obsessive-compulsive disorder, anxiety disorders,
and posttraumatic stress disorder. WebMD, http://www.webmd.com/drugs (last visited on March
6, 2013). Tegretol is used to prevent and control seizures and to treat certain mental or mood
A score from 51 to 60 represents moderate symptoms (such as flat affect and circumstantial
speech, occasional panic attacks), or moderate difficulty in social, occupational, or school
functioning (such as few friends, conflicts with peers or co-workers). DSM-IV-TR at 34.
Depakote is used to treat seizure disorders and certain psychiatric conditions and to prevent
migraine headaches. WebMD, http://www.webmd.com/drugs (last visited on March 6, 2013).
Buspar is used to treat anxiety. Id.
anger. Jennifer Brockman, M.D., diagnosed bipolar II disorder and personality disorder and gave
a GAF score of 45. She prescribed “Symbax” and Xanax.13 (Tr. 320-23.)
On October 29, 2010, Dr. Brockman submitted a Mental Ability To Do Work Assessment
form regarding plaintiff. Dr. Brockman noted that plaintiff acted appropriately when stable but could
quickly become disproportionately irritable and physically aggressive. She stated that plaintiff’s
depression and anxiety caused decreased organization, memory, comprehension, and attention. She
found that plaintiff’s mental health would worsen in a work situation and that plaintiff could not
compete in an open job market. (Tr. 217-18.)
On November 3, 2010, Lisa Clervi, licensed psychologist, reported that she had counseled
plaintiff since April 13, 2010. She diagnosed posttraumatic stress disorder and bipolar disorder and
gave her a GAF score of 41. (Tr. 219.)
On November 9, 2010, plaintiff complained of low back and right buttock pain, which she
rated at level 6 out of 10. Tom Reinsel, M.D., recommended an MRI scan on her lumbar spine. (Tr.
On December 6, 2010, plaintiff received an MRI scan on her lumbar spine. Donald Mueller,
M.D., found the scan unremarkable but noted that a metallic artifact impeded the view. (Tr. 315-16.)
Testimony at the Hearing
A hearing was conducted before an ALJ on January 27, 2011. (Tr. 24-44.) Plaintiff testified
to the following. She finished the tenth grade but stopped attending school due to emotional
problems and her back. (Tr. 27.)
WebMD reveals no medication referred to as Symbax. However, Symbyax is used to treat certain
mental or mood disorders and depression. WebMD, http://www.webmd.com/drugs (last visited on
March 6, 2013).
A few years ago, she underwent surgery to correct scoliosis. During the procedure, four rods
were placed in her back and some ribs were removed. She continues to see doctors for checkups and
MRI scans and has scheduled further appointments. She visits the hospital because of her back pain.
The pain occasionally radiates up her back and to her hip. She has had the pain since her enrollment
in school, which made sitting and concentration difficult. Usually, she elevates her feet when she
sits to remove pressure from her low back. After about twenty-five minutes of sitting, her back
cramps. After thirty minutes of standing, pain requires her to walk or sit. She can lift only about five
pounds. (Tr. 28-30.)
She takes Percocet and Flexeril to alleviate pain. She takes three or four Percocet pills per
day. She previously used marijuana due to her tumultuous childhood but also to relieve her back
pain, stress, and anxiety. She stopped using marijuana after her therapist prescribed her medication.
She last used marijuana four or five months ago and only used when she exhausted her medication,
which happened about once or twice per month. Last year, she was arrested for hitting someone.
She is unmarried, childless, and lives in a trailer with her grandmother and aunt. She is
twenty years old and receives food stamps. Her case worker and therapist support her. Her friends
have provided her with marijuana to alleviate pain at no cost. (Tr. 33-34.)
At home, she bowls on her Wii console. She walks her dog and watches movies. She has
few friends. She plans on returning to school to become a teacher. She last worked at McDonald’s,
but the pain caused by walking on concrete floors quickly ended her employment. She performs
household chores and goes to the grocery store. She has no driver’s license and has never taken the
licensing test. (Tr. 34-35.)
She cannot work because her low back pain makes walking and bending difficult. She has
very little education. She plans to get a GED and attend school for secretarial work, teaching, or
other less physically demanding jobs. (Tr. 35-36.)
She receives therapy from Lisa Clervi for bipolar disorder, anxiety disorder, anger problems,
and posttraumatic stress disorder. She had “a very bad childhood” because her brother abused her.
Her mental condition affects her ability to get a job because it causes difficulty interacting with
others, inarticulateness, anger, and stress. (Tr. 36-37.)
Despite doctor’s instructions to quit smoking as a prerequisite to undergoing surgery, she
continues to smoke half a pack of cigarettes per day. She does not drink. During the past seven
months, she has been receiving psychiatric treatment from Dr. Brockman. Case worker Elise
Drasball attended the hearing with plaintiff and works for the Arthur Center. She picks up plaintiff
weekly to discuss plaintiff’s anger, stress, and daily life. Elise Drasball helps her find food and
transportation when needed. (Tr. 37-39.)
Drastic changes in life cause her stress. Her mood can change from happy to extremely upset
within minutes. She cries when she becomes mad, and her sadness turns into anger. Although they
have their battles, she gets along with her mother and grandmother. During her bad days, she takes
walks, draws, or reads. To get away from her family, she goes to friends’ houses, takes her dog on
walks, or sits outside. She also experiences manic phases of extreme happiness. She has difficulty
sleeping but takes mood stabilizers at night to help. (Tr. 39-40.)
Vocational expert (VE) Marcia Hield also testified at the hearing. The VE testified that
plaintiff had no previous work history. The ALJ presented a hypothetical question concerning an
individual of the same age, education, and work history as plaintiff. The individual could only
occasionally lift or carry twenty pounds, frequently carry ten pounds, stand or walk only six hours
in an eight-hour workday, and sit for only six hours in an eight-hour workday. The individual would
be limited to occasionally climbing stairs or ladders, balancing, stooping, kneeling, and crouching
and should avoid concentrated exposure to vibration. The individual would also have attention
deficit disorder and occasionally fail to take medication as prescribed. (Tr. 41-42.)
The VE replied that such individual could perform the job of a hand bander, which is light
and unskilled work, with 355,000 positions nationally and 6,000 in Missouri; housekeeper, which
is light and unskilled work, with 400,000 positions nationally and 4,300 in Missouri; and small
product assembler, which is light and unskilled work with 169,000 positions nationally and 1,900
in Missouri. (Tr. 42-43.)
Plaintiff’s attorney altered the hypothetical individual by adding that the individual would
have no useful ability to handle work stress, function independently, behave in an emotionally stable
manner, or relate predictably in social situations. The individual would further suffer serious
limitations regarding following work rules, relating to coworkers, dealing with the public, using
judgment, interacting with supervisors, maintaining attention and concentration, and demonstrating
reliability. The VE responded that such individual could not perform the jobs previously identified.
III. DECISION OF THE ALJ
On February 23, 2011, the ALJ issued a decision that plaintiff was not disabled. (Tr. 10-19.)
Initially, the ALJ found that plaintiff was qualified to claim benefits as the dependent child of a
deceased wage earner, her father George Dunlap. Then, at Step One of the prescribed regulatory
decision-making scheme,14 the ALJ found that plaintiff had not engaged in substantial gainful
activity since April 16, 2009, the alleged onset date. At Step Two, the ALJ found that plaintiff’s
severe impairments were scoliosis, post status T2-L4 fusion, attention deficit hyperactivity disorder,
and mood disorder. (Tr. 13.)
At Step Three, the ALJ found that plaintiff had no impairment or combination of
impairments that met or was the medical equivalent of an impairment on the Commissioner’s list
of presumptively disabling impairments. (Id.)
The ALJ considered the record and found that plaintiff had the residual functional capacity
(RFC) to perform light work, except that she cannot climb ladders, ropes, or scaffolds, can only
occasionally climb stairs, balance, stoop, kneel, crouch, and crawl, and must avoid concentrated
exposure to vibrations. The ALJ also found that plaintiff had deficits in maintaining attention but
could still perform less demanding work. At Step Four, the ALJ found that plaintiff had no past
relevant work. (Tr. 14-17.)
At Step Five, the ALJ found plaintiff capable of performing jobs existing in significant
numbers in the national economy. (Tr. 18.)
IV. GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision is to determine whether
the Commissioner’s findings comply with the relevant legal requirements and are supported by
substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir.
2009). “Substantial evidence is less than a preponderance, but is enough that a reasonable mind
would find it adequate to support the Commissioner’s conclusion.” Id. In determining whether the
See below for explanation.
evidence is substantial, the court must consider evidence that both supports and detracts from the
Commissioner's decision. Id. As long as substantial evidence supports the decision, the court may
not reverse it merely because substantial evidence exists in the record that would support a contrary
outcome or because the court would have decided the case differently. See Krogmeier v. Barnhart,
294 F.3d 1019, 1022 (8th Cir. 2002).
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), 1382c(a)(3)(A); Pate-Fires, 564 F.3d at
942. A five-step regulatory framework is used to determine whether an individual is disabled. 20
C.F.R. § 404.1520(a)(4); see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing the
five-step process); Pate-Fires, 564 F.3d at 942 (same).
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 impairment meets
or equals a listed impairment. 20 C.F.R. § 404.1520(a)(4)(i)-(iii). If the claimant does not suffer
from a listed impairment or its equivalent, the Commissioner’s analysis proceeds to Steps Four and
Five. Step Four requires the Commissioner to consider whether the claimant retains the RFC to
perform past relevant work (PRW). Id. § 404.1520(a)(4)(iv). The claimant bears the burden of
establishing the Step Four factor. Pate-Fires, 564 F.3d at 942. If the Commissioner determines the
claimant cannot return to PRW, the burden shifts to the Commissioner at Step Five to show the
claimant has the RFC to perform other work that exists in significant numbers in the national
economy. Id.; 20 C.F.R. § 404.1520(a)(4)(v).
Plaintiff argues that the ALJ failed to give proper consideration to the opinions of her treating
psychiatrist Jennifer Brockman and her treating therapist Lisa Clervi, which caused the ALJ to err
in determining the effect of plaintiff’s mental limitations on her RFC. The court agrees.
Under the Commissioner’s regulations, a treating physician’s opinion is entitled to
controlling weight if supported by medically acceptable clinical and laboratory diagnostic techniques
and not inconsistent with other substantial evidence. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir.
2000) (citing 20 C.F.R. § 404.1527(d)(2)). The ALJ must give reasons for her assessment of the
opinions of treating physicians. Id. Discounting such opinions is appropriate where “other
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.” Id.
The ALJ determined that plaintiff’s mental RFC limitations consisted solely of “some
deficits in maintaining attention” that left plaintiff capable of performing less demanding work. (Tr.
17.) In arriving at this conclusion, the ALJ afforded the opinions of plaintiff’s treating psychiatrist
and treating therapist minimal weight, finding that “the opinions of Ms. Clervi and Dr. Brockman
are not supported by medically acceptable clinical and laboratory diagnostic techniques and are not
consistent with the other substantial evidence in the record.” (Id.) The ALJ did not further elaborate
on her reasons for discounting the opinions. (Id.)
Nothing in the record indicates that either plaintiff’s treating therapist or her treating
psychiatrist rendered inconsistent opinions, nor does the record contain contradictory assessments
supported by better or more thorough evidence. The sole contradictory assessment consists of a
Physical Residual Functional Capacity Assessment form completed by Ioan Dacila. (Tr. 208-15.)
Although Ioan Dacila indicated that he could find no evidence to support a finding that ADHD
affected plaintiff’s ability to work, the form predated the year when plaintiff regularly sought mental
health treatment. (Tr. 215.) Further, GAF scores and the five-axis diagnostic system used by
plaintiff’s therapist and psychiatrist as diagnostic tools are relevant factors in assessing mental
impairments. See, e.g., Pearsall v. Massanari, 274 F.3d 1211, 1215 (8th Cir. 2001); Pate-Fires v.
Astrue, 564 F.3d at 943; Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005); Hamel v. Astrue, 620
F. Supp. 2d 1002, 1019 (D. Neb. 2009); Boertje v. Astrue, 848 F. Supp. 2d 952, 959 (S.D. Iowa
The Commissioner argues that the opinions of plaintiff’s therapist and psychiatrist are
inconsistent with the record because of her daily living activities and because her mental
impairments improved when she complied with her treatment. The court disagrees.
The Commissioner states that plaintiff’s daily activities consisted of “socializing with
friends, caring for pets, preparing easy meals, performing simple household chores, shopping,
watching television shows and movies, reading, drawing, sewing, playing cards and board games,
doing puzzles including crossword puzzles, texting with friends, and playing video games.” (Doc.
23 at 7.) The Commissioner further states that plaintiff performed yard work and cites authority
stating that such activities are “inconsistent with subjective complaints of pain.” (Id. (citing
Medhaug v. Astrue, 578 F.3d 805, 817 (8th Cir. 2009).)
However, plaintiff’s arguments concern her mental condition, not her subjective complaints
of pain. Plaintiff’s therapist and psychiatrist do not indicate that plaintiff does not have the
exertional capability to perform such activities. Rather, Dr. Brockman stated that plaintiff suffers
from mood swings and that plaintiff is functional when stable but can quickly become unreliable and
unpredictable, which is consistent with plaintiff’s ability to perform such activities. (Tr. 217-18.)
Further, the Eighth Circuit has repeatedly held that “the ability to do activities such as light
housework and visiting with friends provides little or no support for the finding that a claimant can
perform full-time competitive work.” Draper v. Barnhart, 425 F.3d 1127, 1131 (8th Cir. 2005).
The Commissioner also argues that plaintiff’s mental impairments improved when she
complied with her treatment and, therefore, cannot support a finding of disability. “Impairments that
are controllable or amenable to treatment do not support a finding of disability, and failure to follow
a prescribed course of remedial treatment without good reason is grounds for denying an application
for benefits.” Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997). The record indicates that
plaintiff’s condition improved with treatment, but it does not indicate that treatment controlled the
mental conditions described by plaintiff at the hearing, which included bipolar disorder, anxiety
disorder, mood disorder, and posttraumatic stress disorder. (Tr. 36.) While the Eighth Circuit uses
the word “amenable,” the court’s rule cannot be reasonably interpreted to indicate that only
untreatable conditions, incapable of any improvement, can render a claimant disabled. The record
indicates that the effects of plaintiff’s mental conditions persisted even when plaintiff complied with
(Tr. 324-31.) Although her mental conditions improved with treatment, mere
improvement does not bar a condition from supporting a finding of disability.
Admittedly, the record indicates that plaintiff failed to follow prescriptions. (Tr. 317-24.)
However, plaintiff stopped taking these medications because of vomiting, lactation, inducement of
anger, and shakiness, and the record does not indicate that her conduct was unreasonable. (Id.) Dr.
Brockman noted that she could not find a successful medication regimen for plaintiff. (Tr. 322, 326,
330.) The record further indicates that plaintiff agreed with Dr. Brockman to not share her
medication, not to get it from any other source, and to take her medications as prescribed, with no
mention that plaintiff breached that agreement. (Tr. 323, 326, 330.) In sum, the record
unequivocally indicates that, when plaintiff failed to follow a course of treatment for her mental
condition, she had ample reason.
In conclusion, the ALJ improperly discounted the opinions of plaintiff’s treating therapist and
her treating psychiatrist. In circumstances that apply to this case, the Commissioner’s regulations
If we find that a treating source’s opinion on the issue(s) of the nature and severity
of your impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in your case record, we will give it controlling weight.
20 C.F.R. § 404.1527(c)(2). Nothing in the record demeans the controlling weight and credibility
of the opinions of plaintiff’s treating psychologist, Dr. Jennifer Brockman, and her treating therapist,
Lisa Clervi, expressed during 2010, described above.
Thus, at Step Five of the required analysis, the Commissioner failed to sustain the burden on
the Social Security Administration to determine whether plaintiff could perform substantial gainful
activity that exists in significant numbers in the national economy. The decision denying plaintiff’s
disability benefits is not supported by substantial evidence.
Substantial evidence in the record is unequivocal to establish that plaintiff is entitled to
period of disability beginning October 29, 2010, and continuing thereafter. Pate-Fires v. Astrue, 564
F.3d at 947.
Therefore, this case will be remanded to the Commissioner of Social Security for an award
of benefits consistent with this memorandum opinion. An appropriate Judgment Order is issued
Dated this 6th day of March, 2013.
/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
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