Terwilliger v. Colvin

Filing 24

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and remanded under sentence four of 42 U.S.C. Section 405(g) for further proceedings consistent with the Memorandum and Order. A separate judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Catherine D. Perry on March 31, 2015. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
JODY D. TERWILLIGER,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 2:14CV18 CDP

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) for
judicial review of the Commissioner’s final decision denying Jody D. Terwilliger’s
application for supplemental security income (SSI) under Title XVI of the Social
Security Act. 42 U.S.C. §§ 1381 et seq. Terwilliger claims she is disabled because
she suffers from a combination of impairments, including schizophrenia, asthma,
seizure disorder, depression, anxiety, Hepatitis C, and bi-polar disorder. After a
hearing, the Administrative Law Judge concluded that given Terwilliger’s age,
education, work experience, and residual functional capacity, she is capable of
making a successful adjustment to work that exists in significant numbers in the
national economy. Because I find that the ALJ did not properly analyze the weight
to accord the opinion of Terwilliger’s treating psychologist, I will reverse and
remand for further proceedings.

I.

Procedural History
Terwilliger filed her application for supplemental security income benefits

on April 22, 2011. She initially alleged an onset date of November 1, 2008 (Tr.
133), but this date was amended to June 30, 2011 via a letter from Terwilliger’s
counsel on October 1, 2012. (Tr. 152).
When her application was denied, Terwilliger requested a hearing before an
administrative law judge. She then appeared at an administrative hearing on
November 20, 2012, where she was represented by attorney Frank T. Cook.
Terwilliger and a vocational expert testified at the hearing.
After the hearing, the ALJ denied Terwilliger’s application, and she
appealed to the Appeals Council. On December 19, 2013, the Council denied her
request for review. The ALJ’s decision thereby became the final decision of the
Commissioner. Van Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir. 2008).
Terwilliger now appeals to this court. She argues that the ALJ erred by
failing to properly evaluate the medical opinion of her treating psychologist, Dr.
Marta Fliss, as to her mental impairments. Terwilliger claims these mistakes led to
a decision by the ALJ that was not supported by substantial evidence and should be
reversed and remanded for further evaluation.

2

II.

Evidence before the Administrative Law Judge
Prior Disability Decisions
Terwilliger’s Disability Report – Field Office, dated April 22, 2011,

indicates that she filed a previous disability insurance claim that was denied on
January 18, 2011. (Tr. 187). Additionally, the consultant who provided a
psychiatric review technique after reviewing Terwilliger’s records indicated in her
notes that this is Terwilliger’s fourth application for benefits. (Tr. 667). No
records from previous applications were included in the record before this court.
Function Reports
Terwilliger completed a function report for herself on May 28, 2011. She
reported that she lived in a women’s shelter; her daily activities involved going to
group and individual counseling, eating meals and watching TV. She indicated she
does not take care of any other people or any pets. She wrote that prior to her
disability she was able to care for herself and work part time. She reported her
impairments cause her to have difficulty sleeping and maintaining personal care.
She noted she is a “sloppy dresser,” does not bathe when she is depressed or
manic, does not shave, and does not cook. She needs reminders to brush her hair
and teeth when she’s depressed and needs to have her medications managed
because she forgets to take them at all or takes them and accidentally re-takes
them. She wrote that she cannot prepare meals because she doesn’t have the
3

attention span for it. She does not do house or yard work because she gets
overwhelmed and frustrated, but she can do laundry with help. She indicated she
can go out alone and is able to ride in a car. She does not drive but she does shop
infrequently. She wrote that since the onset of her impairments, she is unable to
pay bills, count change, handle a savings account or use a checkbook.
Terwilliger reported her hobbies include reading and watching TV, but she
has difficulty concentrating long enough to read. She claimed she used to be able
to read all the time and sit through a 2-hour movie but cannot do these things now.
Socially, Terwilliger reported she watches TV with others and talks about
her day approximately 2-3 times per week. She sometimes goes to church on
Sundays. Every other day but Sunday, she reported going to Community Mental
Health, but wrote that she needs reminders to go. She reported having difficulty
getting along with friends and family; she wrote that she no longer has the desire to
go places she used to go, like the club, the zoo, and work-related social events.
Terwilliger indicated her bipolar disorder causes her to have memory and
concentration problems. She cannot follow directions well because she forgets
what she is supposed to do. She reported getting along well with authority figures
as long as she is on her medication but noted that she has problems following
directions and does not like people telling her what to do. She indicated she was
terminated from her job at House of Hope for not getting along with people. Her
4

reaction to stress is to stay in bed or get frustrated and snap at people. Her reaction
to changes in routine is to get nervous and frustrated, which causes her to shut
down or lash out at others. She reported that she is afraid of people, and afraid of
being alone and unable to care for herself.
Finally, Terwilliger reported that her anxiety, depression and schizophrenia
have become worse than they used to be and require stronger medication. She
claimed she cannot be left alone for fear she will hurt herself. (Tr. 227-234).
In a Missouri supplemental questionnaire, Terwilliger noted that she was
currently taking approximately 20 separate medications. (Tr. 236-37).
Medical Records1
Terwilliger was admitted to Cox Health psychiatric unit on May 14, 2010.
The notes from her visit indicate she had been staying at a “Family Violence
Center” nearby and felt that she needed her medications regulated. At admission
she was very emotional, reported being depressed, hearing voices at night, and
feeling hopeless and worthless. A history of prior suicide attempts and overdoses
was noted. Her mental status examination revealed that her mood and affect were
depressed, she reported feeling hopeless and worthless but denied feeling suicidal
or homicidal. Her insight and judgment were impaired. While admitted, her
medications were adjusted and she participated in the unit’s “psychotherapeutic
1

Although I have carefully reviewed all of the medical evidence, only medical records relevant
to the ALJ’s decision and Terwilliger’s challenges to the ALJ decision are discussed.

5

milieu, to which she responded well.” She was diagnosed with “major depression,
recurrent” and PTSD “by history.” She was assigned a GAF of 35 upon admission
and a GAF of 70 upon discharge. Upon discharge she was psychiatrically stable.
(Tr. 257-269).
On May 28, 2010, Terwilliger was again admitted to Cox Health psychiatric
unit; she was discharged on June 4, 2010. She had recently been in a fight with
another woman at the Domestic Violence Center and when she came to the
hospital, she complained of suicidal ideation and voices telling her to kill another
woman. Upon admission, her psychiatric evaluation indicated she had major
depression, recurrent, severe with psychotic features; polysubstance dependence;
and post-traumatic stress disorder with a GAF of 35. Upon discharge, she was
diagnosed with adjustment disorder with mixed features of emotion and conduct;
major depression, recurrent by history; and rule out bipolar disorder type 2. On
discharge she was assigned a GAF of 70. (Tr. 270-281).
Again on June 7, 2010 Terwilliger was admitted to the Cox Health
psychiatric unit. She was discharged on June 22 with a diagnosis of adjustment
disorder with mixed features of emotion and conduct and bipolar disorder type II.
She was assigned a GAF of 20 on admission and 70 on discharge. Terwilliger was
“positive for suicidal ideation at the time of admission with a plan to overdose on
her medication.” (Tr. 281-292).
6

On July 21, 2010, Terwilliger was again admitted to the Cox Health
psychiatric unit complaining that she had stopped taking her medications and was
feeling more depressed and suicidal. She reported hearing voices to kill herself
and do illegal things like steal. She was discharged on July 29, 2010, with
diagnoses of schizoaffective disorder, polysubstance dependence and borderline
personality disorder. She was assigned a GAF of 35 on admission and 70 on
discharge. The notes from this visit report that she did not appear anxious and was
angry that she was not restarted on a benzodiazepine. (Tr. 311-314).
Terwilliger was admitted to St. Johns Hospital on August 9, 2010, with a
chief complaint of “[t]o keep from hurting myself again.” The notes from this visit
state she presented with depression and claimed to have been off her prescriptions
for one month. She admitted to taking a lot of pills and burning herself in the past.
She was discharged on August 11. (Tr. 328-332).
Terwilliger was admitted to Cox Health on August 23, 2010 and discharged
on September 6. She presented to the emergency room claiming she wanted to
hurt herself and overdosed on 10 tablets of Seroquel in a suicide attempt. The
notes indicate she was basically homeless at that time, felt hopeless and worthless,
and had been hearing voices telling her to harm herself. They indicate Terwilliger
had a history of self-mutilation with burns to her harms and a history of overdoses.
She responded well to individual psychotherapy but requested discharge on
7

September 6. Her final diagnosis was schizoaffective disorder, bipolar type;
borderline personality disorder, severe. She was assigned a GAF of 20 upon
admission and 70 upon discharge. (Tr. 333-344).
Cox Health admitted Terwilliger again on September 19, 2010 for suicidal
ideation and discharged her on September 22. She had again attempted suicide
with a Seroquel overdose. In the psychological consultation notes from this
admission, it is noted that Terwilliger was fidgety, which she claimed was typical
behavior when she is anxious. Her mood was severely depressed with significant
anxiety and tearfulness, which she tried to stifle. She was acutely suicidal. She
reported having been homeless for the past several months and not on her
medications. She was diagnosed with bereavement (due to her mother’s death 13
months before) and schizoaffective disorder, bipolar type, most recent episode
depressed, severe with psychotic features. She was noted to have a history of
borderline personality disorder. She was assigned a GAF of 25 upon her initial
admission to the psychiatric unit. (Tr. 351-361).
On September 22, 2010, Terwilliger was transferred from Cox Health and
admitted to Nevada Regional Medical Center. The notes from NRMC state that
Terwilliger is “an evasive and unreliable historian” who began the interview by
saying she was suicidal and homicidal and psychotic and needed her Ativan for
anxiety. The notes indicate Terwilliger was disheveled, uncooperative, had poor
8

eye contact, had depressed mood, and had a sometimes tearful and sometimes
restricted affect. She was assigned a GAF of 25 upon admission and 50 upon
discharge. She was diagnosed with schizoaffective disorder, bipolar type;
polysubstance dependence; and personality disorder, not otherwise specified. (Tr.
365-374).
On October 22, 2010, Terwilliger was again admitted to Cox Health after
she overdosed on Ativan pills. Her discharge diagnosis was schizoaffective
disorder, history of post-traumatic stress disorder, borderline personality traits.
Her GAF upon admission was 30 and upon discharge was 50. The notes from this
admission indicate that although the Ativan was initially stopped, Terwilliger was
re-started on medication for anxiety. Her mental status examination notes state
that she is a “somewhat manipulative white female” with little insight and poor
judgment. (Tr. 375-387)
At the request of the department of social services disability determination
services, Joan Bender, Ph.D., Clinical Psychologist, reviewed Terwilliger’s
records, conducted an interview with her, and completed a psychological report on
her. Bender’s report is dated December 1, 2010 and states Terwilliger has been
staying at a domestic violence shelter for a month and had been homeless before
that. She claimed to be on 13 medications but could only name a few of them and
said they were not helping. Terwilliger stated that she was a drug addict but had
9

stopped taking marijuana and meth in August due to lack of access and the fact that
her life seemed to be getting better. She had recently huffed some aerosol cans.
She stated she had had 75 psychiatric hospitalizations since she was 18 years old.
She began taking psychiatric medications at age 18 and has been on and off them
ever since. Most recently she had been taking them for a month. She reported she
was very depressed and stayed in bed crying a lot. She cried at times during the
interview and her legs shook or bounced off and on. She reported having auditory
hallucinations of a male voice encouraging her to commit suicide for the past 8
years. She reported having panic attacks in crowded situations with trouble
breathing. She said she is afraid people will not like her and is worried they will
hurt her emotionally.
Bender’s diagnostic impression was that Terwilliger had a severe problem
with drug addiction, had periods of psychotic depression and anxiety, and met the
criteria for major depression, recurrent, severe with psychotic features; social
phobia with panic attacks; personality disorder NOS; and
amphetamine/cannabis/opioid dependence/abuse. She assigned a GAF of 45.
Bender formulated a “residual capacity statement” based solely on
Terwilliger’s psychiatric disorder as follows: Terwilliger is able to understand,
recall, concentrate on, and persist on moderately complex tasks; she could handle
contact with the public in low to moderate levels; could handle moderate contact
10

with coworkers and supervisor; could adapt to change and manage her own funds.
Bender reported that Terwilliger has a “severe substance abuse problem” that “very
likely impacted her other psychiatric disorders negatively.” She reported that if
Terwilliger could maintain her sobriety, she would be less depressed and anxious
and would be able to function at a job as described in Bender’s residual capacity
statement. (Tr. 390-393).
On February 5, 2011, Terwilliger presented to St. Johns Hospital in
Springfield, Missouri to be “cleared medically” so that she could return to “Carol
Jones” where she was being treated for drug abuse. She complained of anxiety and
auditory hallucinations. The notes from this visit indicate Terwilliger had recently
taken a pencil eraser and “abraded” her left arm in three different places. There
were also well-healed scars on her arm, and Terwilliger admitted to having had a
similar episode eight months earlier. The hospital notes state that Terwilliger
reported her Ambien and Klonopin were stolen over a week earlier. She told them
she had a history of meth use since age 22. The notes also state that her case was
discussed with psychiatry, and it was felt that Terwilliger was at low risk for
harming herself or others and that she was “somewhat manipulative” in trying to
obtain more medicine (Klonopin and Ambien). (Tr. 429- 435).
On February 9, 2011, Terwilliger came to the St. John’s Hospital ER
complaining that she was feeling dizzy and had a headache. She reported that she
11

frequently feels dizzy before a seizure. Her symptoms resolved after being given
Compazine and Tylenol, and she was discharged the same day. (Tr. 436-444).
On February 16, 2011, Terwilliger presented to the Cox Health North
emergency department complaining of hearing voices and being suicidal. Her
diagnosis was a substance induced mood disorder. She reported being a meth
abuser shooting 0.5 grams per day. She had been staying at (and had come from)
Carol Jones Rehabilitation Center. The physician’s notes indicate Terwilliger had
no serious intention of killing herself. There was no indication of memory
difficulties. She claimed the voices she heard were her two brothers who abused
her as a child. Her father also sexually molested her as a child. The mental status
examination revealed no evidence of anxiety. She was diagnosed as follows:
Axis I:
Axis II:
Axis III:
Axis VI:
Axis V:

Psychosis nonspecified; methamphetamine dependence;
cannabis abuse; use of illegal potpourri
Borderline personality disorder
History of withdrawal seizures from Trazodone, withdrawal
from Dilantin.
Moderate-to-severe drug dependence
Global Assessment of Functioning of 30.

The notes indicate Terwilliger was “educated about the anxiety secondary to the
methamphetamine that will last a long time….” She was discharged back to her
rehabilitation center on February 21. (Tr. 445-466).
Records from the Community Mental Health Center indicate Terwilliger was
admitted there from February 25, 2011 to June 15, 2011. Her GAF upon
12

admission and discharge is listed as 35. The notes from her time with CMHC
indicated that she “made very little progress, continues to use despite negative
consequences to health and well-being, attended regularly, but very manipulative,
longest clean time approximately 2 weeks.” Terwilliger was discharged because of
her admission to a long term inpatient program. (Tr. 572-576).
On February 25, 2011, Terwilliger was diagnosed by the Community Mental
Health Consultants (CMHC) as follows:
Axis I:

Axis II:
Axis III:
Axis IV:

Axis V:

Amphetamine dependence; alcohol dependence, sedative,
hypnotic, or anxiolytic dependence; cannabis dependence;
polysubstance dependence; schizophrenia, paranoid type.
Borderline personality disorder
Morbid obesity; chronic obstructive asthma, unspecified
Problems with primary support group; problems related to the
social environment; occupational problems; housing problems;
problems related to interactions with legal system or crime;
other psychosocial and environmental problems; economic
problems
GAF 35

On March 2, 2011, the notes from the CMHC assessor indicate that
Terwilliger had attempted suicide 50-60 times in her life. She struggled with
depressed mood almost every day. She had racing thoughts and visual and
auditory hallucinations telling her to harm herself. She had rapid mood swings and
digressed rapidly under stress. She was the victim of physical abuse as a child.
The assessor found her to be extremely childlike and in need of comprehensive
case management and intensive day treatment to help her manage her impulses to
13

act out against herself or others. She had abused prescription medications and
alcohol since her admission to the facility. Terwilliger reported using a half-gram
of methamphetamine per day. She reported also using other stimulants, crackcocaine, hallucinogens, inhalants, over-the-counter medications, sleeping pills, and
IV drugs. (Tr. 471-493).
Terwilliger was admitted to Nevada Regional Hospital on February 26, 2011
and discharged on March 2, 2011. After admission, the notes indicate she
appeared to be depressed and overwhelmed with life. She was assigned a GAF of
30. The discharge summary indicates she has bipolar mood disorder, type I;
polysubstance abuse; and borderline personality disorder. On discharge, she was
assigned a GAF of 55. Notes in the discharge summary state Terwilliger was
admitted involuntarily for suicidal ideation. She had just been released from rehab
and stated she felt very anxious about this, so she “took a lot of Ambien and
Klonopin.” The notes state that Terwilliger did “a lot of med seeking” while she
was admitted. On the day of her discharge she appeared anxious but denied
suicidal ideation. (Tr. 494-498).
On March 14, 2011, Terwilliger was seen at Nevada Regional Medical
Center Behavioral Health Services. She came to the appointment with a nurse
from Nevada Mental Health, complaining of anxiety and reporting a lot of
paranoia. At the time of the appointment Terwilliger was living at Arc of Hope,
14

and Nevada Mental Health was managing her medications. She did not seem
depressed but was “somewhat anxious” and stated that she was having auditory
hallucinations. She was diagnosed with paranoid Schizophrenia; anxiety disorder,
NOS; polysubstance dependence; and borderline personality disorder. She was
assigned a GAF of 55. (Tr. 509).
Terwilliger was again admitted to Nevada Regional Medical Center from
March 22 - 28, 2011, complaining of suicidal ideation. She reported not sleeping
for two weeks due to hearing voices. The notes state that “when she is better
[Terwilliger] tends to minimize her symptoms.” She was diagnosed with
schizoaffective mood disorder, bipolar type; polysubstance dependence in partial
remission; anxiety disorder, not otherwise specified; and bipolar personality
disorder. Upon discharge she was assigned a GAF of 50. (Tr. 499-505).
Terwilliger was seen at Nevada Regional Medical Center Behavioral Health
Services for a psych follow-up on April 12, 2011. The notes indicate Terwilliger
stated she was very depressed and still hearing voices but had not gotten her
prescriptions filled because she did not have money. She was a client at Nevada
Mental health and was staying at Moss House. She complained of anxiety but did
not appear to be visibly anxious. She was diagnosed with Schizophrenia, paranoid
type; anxiety disorder, not otherwise specified; polysubstance dependence; and
borderline personality disorder. She was assigned a GAF of 50. (Tr. 508).
15

On May 17, 2011, Terwilliger was again seen at Nevada Regional Medical
Center Behavioral Health Services for a follow-up psych visit. The notes indicate
that she was accompanied by staff from Nevada Mental Health and seemed to be
doing very well. Terwilliger was having “medication management” done by
Nevada Mental Health to ensure she did not have too many meds at home, given
her history of misuse. Terwilliger’s anxiety seemed to be under control, though
she was sometimes a little hyper, which the doctor felt should be monitored in case
it was hypomania. At the time of this visit, Terwilliger was living at Ark of the
Ozarks and seemed to be able to follow the rules there. She was diagnosed with
schizophrenia paranoid type; anxiety disorder not otherwise specified;
polysubstance dependence; and borderline personality disorder. She was assigned
a GAF of 55. (Tr. 507).
On June 30, 2011, Terwilliger was admitted to Freeman Hospital with a
“benzo overdose.” She was put on 96-hour hold and admitted to the ICU. She
reported feeling suicidal, hearing voices, and overdosing on Klonopin and Ambien,
but her urine drug screen was negative when she was admitted to the ER. When
she was asked by the doctors what they could do for her, Terwilliger stated they
should start her back on all of the pills that she was on previously.
The notes from this visit state that that Terwilliger reported to have been
recently residing at a shelter in Carthage, Missouri, but she was kicked out for
16

abusing drugs. She considered herself homeless. They also indicate that
Terwilliger had diabetes that was not being well-controlled and her blood sugar
would need to be closely followed. The notes state that Terwilliger had a long
history of psychiatric problems and her last encounter with Freeman Health System
was in 2003.
Terwilliger reported that she had guilt about her drug use, felt her
concentration was not very good, had a lot of irritability and frustration, had
problems with psychomotor agitation and retardation, and felt it would be all right
if she did not awaken in the morning. She stated that she did not have mood
swings but felt like she is in a constant state of down. She reported sometimes
hearing a male voice that tells her she is no good and to hurt herself, but the doctor
noted that any voices were probably secondary to Terwilliger’s drug abuse and
self-esteem issues. The conclusions made after Terwilliger’s psychiatric exam
were as follows:
Axis I:

Axis II:
Axis III:
Axis IV:
Axis V:

Polysubstance abuse and dependence; psychosis, NOS; rule out
schizoaffective disorder; rule out bipolar disorder; rule out
major depressive disorder.
Personality disorder, NOS: rule out borderline personality
disorder; rule out antisocial personality disorder.
Type 2 diabetes; COPD; history of epilepsy
Environmental
GAF estimated 40

(Tr. 601-634).

17

Terwilliger was seen by Dr. Jackie Beene at the Ozarks Community Hospital
sometime in June or July 2011, complaining of a pain in her side that she believed
was due to kidney stones. At that time, Dr. Beene noted Terwilliger had “[n]o
obvious signs of depression or psychosis.” Dr. Beene ordered a drug test that was
performed on July 1, 2011. The results were negative for everything except
benzodiazepines. (Tr. 636-37).
On September 1, 2011, Sarmistha Bhalla, MD, of the Hope Center, an adult
comprehensive psychiatric rehabilitation center, performed a psychiatric evaluation
of Terwilliger. The notes indicate Terwilliger reported being a drug addict and in
and out of homeless shelters, emergency rooms and inpatient psychiatric units.
She reported being sexually abused as a child and starting to use drugs at age 14.
She reported hearing voices and getting violent. For instance, she had recently
“knocked out 10 computers in the hospital.” Terwilliger stated she heard voices
telling her to hurt herself or others. She reported she felt sad and depressed, and
she was tearful during the interview but not suicidal. Bhalla’s diagnostic
formulation for Terwilliger was as follows:
Axis I:

Axis II:
Axis III:
Axis IV:
Axis V:

Polysubstance dependence; mood disorder, NOS, rule out
bipolar disorder; psychotic disorder, NOS, history of
schizophrenia; post-traumatic stress disorder.
Borderline personality disorder.
Asthma, diabetes, and seizures.
Housing problem, severe; relationship problem, severe;
financial problem, severe.
GAF score 55.
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(Tr. 685-688).
On September 13, 2011, Terwilliger again met with Bhalla at the Hope
Center for a medication review. Bhalla reported Terwilliger was not suicidal, her
presentation was cooperative, her mood and affect were anxious, her eye contact
was good, her flow of thought was logical, her thought content was normal, she
had no hallucinations or delusions, and she was well-oriented. Terwilliger’s
insight and judgment were fair. Bhalla’s diagnostic formulation for Terwilliger
was the same as her September 1 formulation. (Tr. 681-84).
On September 16, 2011, Terwilliger had an outpatient therapy visit with
Dennis Campbell, MSPSY, at the Hope Center, an adult comprehensive psychiatric
rehabilitation center. Campbell’s notes indicate that Terwilliger was unemployed
and living at the Hope Center at the time of their visit. She admitted to an
extensive history of suicide attempts but was not suicidal at the time of their visit.
She admitted to at times “feigning suicidal thinking due to homelessness.” (Tr.
675). She reported neglect as well as emotional, physical, and sexual abuse in her
childhood. She reported few friends and indicated she was somewhat close with
one sister. She reported no problems with daily living but appeared to have
problems with anger as she had attempted to destroy several computer monitors
during a recent hospital stay. Terwilliger reported use of numerous drugs, but
Campbell’s notes state that her self-reporting should be considered suspect because
19

she had made false reports in the past to gain admission to various facilities.
Campbell reported Terwilliger was guarded, her eye contact consisted of “stares,”
her insight was fair, and her judgment was poor. She appeared wary and reserved.
She indicated that previous reports concerning auditory hallucinations may have
been made to gain admission to facilities due to homelessness. She stated “I am a
manipulator.”
Campbell’s diagnostic formulation for Terwilliger was as follows:
Axis I:

Axis II:
Axis III:
Axis IV:
Axis V:

Polysubstance dependence; mood disorder, NOS, rule out
bipolar disorder; psychotic disorder, NOS, history of
schizophrenia rule out malingering; post-traumatic stress
disorder.
Personality disorder, NOS, with borderline and antisocial
features.
Asthma, diabetes, and seizures.
Housing problem, severe; relationship problem, severe;
financial problem, severe.
GAF score 55.

(Tr. 674-680).
Bhalla met with Terwilliger again on October 4, 2011 for a medication
review. Bhalla’s report indicates Terwilliger was not suicidal, her mood was
normal, her affect was anxious, her flow of thought and thought content were
normal, she was having no hallucinations or delusions. Her insight and judgment
were fair. Bhalla’s diagnostic formulation for Terwilliger was the same as
Campbell’s from September 16. (Tr. 697-700).

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Bhalla met with Terwilliger again on December 15, 2011 for a medication
review. At that time Terwilliger had been back from rehab for 21 days.
Terwilliger reported finishing the program but stated she was still depressed and
having nightmares. She wanted to try Abilify. She was not suicidal. Terwilliger’s
mood was anxious and depressed, her affect was anxious, her flow of thought was
logical, her thought content was normal, and she was not having hallucination or
delusions. She was well-oriented with fair insight and judgment. Bhalla’s
diagnostic formulation for Terwilliger was unchanged. (Tr. 701-704).
Bhalla met with Terwilliger next on February 14, 2012 for a medication
review. At that time Terwilliger reported that she was hearing voices telling her
she was not good and should kill herself. She reported that she was dealing with
them. She claimed she was depressed and not getting better but denied using drugs
since October. She indicated she was working with vocational rehabilitation and
trying to get a job. She was not suicidal. Terwilliger’s mood was depressed, her
affect was anxious, her flow of thought was logical, her thought content was
normal, she was having no hallucinations2 or delusions, and she was well-oriented.
Terwilliger’s insight and judgment were fair. Bhalla’s diagnostic formulation for
Terwilliger was unchanged. (Tr. 705-708).
2

Bhalla indicated this by checking a box. It contradicts Bhalla’s narrative report that Terwilliger
claimed to be having hallucinations, but there is no explanation for the discrepancy between her
report and Bhalla’s checking of this box. For example, we do not know if this was an oversight
or if Bhalla did not believe Terwilliger.

21

Bhalla met with Terwilliger next on May 1, 2012 for a medication review.
Terwilliger reported having nightmares again. An ER doctor had recently taken
her off Abilify because her sugars were very high. She reported feeling a little
depressed but denied any use of drugs since October. Bhalla’s diagnostic
formulation for Terwilliger was unchanged. (Tr. 709-713).
On May 18, 2012, Terwilliger was admitted to the Callaway Community
Hospital for over-dosing on Coricidin (an over-the-counter cold medicine) with the
intent to get high. The records are difficult to read, but it appears she was
discharged back to the Hope Center shortly after being admitted. (Tr. 729-730).
Bhalla met with Terwilliger next on July 11, 2012 for a medication review.
Terwilliger reported being depressed but her nurse said she was doing great. She
received third place in a weight loss program and denied any recent use of drugs.
She was not suicidal. Bhalla’s diagnostic formulation for Terwilliger was
unchanged. (Tr. 714-716).
On October 10, 2012, Terwilliger was seen by Bhalla again for a medication
review. Bhalla reported that Terwilliger indicated her depression was good but her
medications were not helping her anxiety or sleep. She reported she was medicine
compliant but when pressed, admitted she was not taking her Effexor. She was not
suicidal. Her mood and affect were anxious, her flow of thought was logical, her
thought content was normal, she was having no hallucinations or delusions, and
22

her insight and judgment were fair. Bhalla’s diagnostic formulation for Terwilliger
was unchanged. (Tr. 780-84)
On November 6, 2012, Terwilliger was admitted to St. Mary’s Health Center
due to worsening depression and suicidal ideation, plans for overdosing, and
auditory hallucinations. She was examined by Dr. John Clemens. His notes from
this visit indicate that Terwilliger was living at a residential care facility called
Southside, which she was unhappy with. The notes state she was very suggestible,
acknowledging nearly every symptom of depression, anxiety, suicidal ideation,
with thoughts of overdosing on Coricidin, as well as auditory hallucinations telling
her to hurt herself. She has a history of self-mutilation.
Clemens’ mental status exam indicated Terwilliger was mildly simplistic
and marginally reliable. Her mood was depressed with an incongruent affect. She
was pleasant and appeared to have her anxiety controlled at the time of the exam.
Her comprehension was intact but her insight and judgment seemed impaired. The
diagnostic impression was given as follows:
Axis I:

Axis II:
Axis III:
Axis IV:
Axis V:

Major depressive disorder, recurrent with anxiety;
polysubstance dependency by history in sustained remission per
patient’s report; history of bipolar affective disorder per
patient’s report.
Borderline personality traits versus probable disorder.
Hypertension, asthma, diabetes mellitus, and seizure disorder
by history.
Psycho-social stressors include poor support system,
unemployed, recent move, lack of structure.
GAF of 35.
23

Clemens’ plan for Terwilliger was to reset her psychotropic medications and
have her be highly involved with “all ward activity, groups, and activities of daily
living.” He noted there was a “[h]igh indication for an outpatient therapist.” (Tr.
786-789).
Dr. Marta Fliss’ Records and Opinions
The records indicate that from June 26 to November 27, 2012, Terwilliger
had nine therapy sessions with Dr. Marta Fliss. I have carefully reviewed all of
these records. Dr. Fliss’ notes indicate that at these appointments, Terwilliger
generally had good hygiene and was typically alert, oriented, and not experiencing
hallucinations. Terwilliger’s affect varied. On June 26 and July 10 it was
described as appropriate and congruent with topics being discussed. On August 8
and August 30 it was described as labile, including tearful, sad, anxious and
euthymic. On September 11, it was described as ranging from cheerful to
euthymic to anxious. On November 6 it was described as depressed and anxious.
Terwilliger’s mood was typically reported as anxious, and depressed or sad.
During the sessions, she discussed various topics, including a planned, but
eventually canceled, visit to her sister; her future goals of living independently and
perhaps being a parent; her anxiety surrounding the job she started in August 2012;
her fear of living independently because she had never learned how to pay bills and
was worried she would become homeless again; her eventual termination from the
24

job she started due to absences; her urges to self-harm; her arrest for shop-lifting;
her embarrassment regarding the arrest; and the anxiety she experienced in group
therapy. (Tr. 790-804).
Fliss’ notes from the October 24 session state that Fliss suspected
Terwilliger was high during the session, even though Terwilliger denied this.
Fliss’ nurse noted extremely high blood pressure, sweating, and erratic movements
in the waiting room. Fliss’ notes indicate that during this session she
[f]illed out disability paperwork with client from lawyer, which
prompted several important discussions…including the role substance
abuse had on her mental health and vice versa; her ability to work and
work performance; more details regarding how her psychiatric
symptoms affected her and her relationships with others; her diagnosis
and clarification on what Antisocial Personality Disorder was; and
client’s opinion that she was going to need to live in a supportive
environment even after receiving disability versus living
independently.
(Tr. 801).
Fliss’ notes from the November 6 session indicate that Fliss had seen
Terwilliger “in crisis” on the previous Sunday at the ER after Terwilliger had taken
48 pills of Coricidin. Her notes state that Terwilliger denied “being a harm to self”
and “related that she had only done this to get high.” During the session,
Terwilliger reported recently abusing cold medicine, alcohol, K2 and whatever was
available. She reported that she did not like living at the Southside facility because
the clients abused alcohol and drugs, and she was having difficulty staying sober.
25

Fliss’ notes stated that Terwilliger was “extremely anxious” during the session and
reported wanting to be hospitalized in order to help address difficulties with
sobriety and urges to hurt herself. Terwilliger was transferred from Fliss’ office to
St. Mary’s, and Fliss’ staff contacted Southside to inform them of the
hospitalization. (Tr. 802).
Fliss responded to several interrogatories regarding Terwilliger on October
24, 2012. Fliss reported Terwilliger was homeless and in the hospital for suicidal
behaviors in Kansas City when she was enrolled in the Supported Community
Living Program and placed at Hope Center. She reported that Terwilliger lived at
the Hope Center for 13 months (August 2011-September 2012), and she was
discharged for substance abuse and her negative impact on other residents, despite
several warnings. Fliss indicated that she was treating Terwilliger based on the
diagnoses given to her by Dr. Bhalla. In response to being asked whether
Terwilliger’s disease process has resulted in “such marginal adjustment that even a
minimal increase in mental demands or a change in environment would be
predicted to cause her to decompensate,” Fliss wrote:
A recent move in residential facilities has resulted in Ms. Terwilliger
to be more aggressive with staff members despite her typical passive
nature, arrested for shoplifting cold medicine – preferred substance of
abuse, and not following diabetic diet. It does appear that Ms.
Terwilliger typically does not do well with change, potentially a result
of heightened anxiety and interpersonal relationship difficulties.

26

Fliss further reported that, given Terwilliger’s current behaviors, which were
occurring despite a year of intensive residential and outpatient treatment, it was her
opinion that Terwilliger needs to be placed in a highly supportive living
arrangement. (Tr. 717-718).
Fliss also completed a Medical Assessment of Ability to Do Work-Related
Activities (Mental) on October 24, 2012. She reported that Terwilliger had a fair
ability to follow work rules, relate to co-workers, and use judgment. She reported
that Terwilliger had poor or no ability to deal with the public, interact with a
supervisor, deal with work stresses, function independently, or maintain
attention/concentration. In support of this assessment, Fliss wrote:
Jodie had a part-time job (20 hours per week) in August for less [than]
one month as she was fired for frequent absences related to poor
physical health. She also was experiencing heightened symptoms of
anxiety and depression. She had difficulty working with the public,
getting easily overwhelmed, having panic attacks, and difficulty
following through with work tasks, which were cleaning off tables in
a college dorm dining room. She was also receiving supported
employment services and still struggled to be successful. Her
heightened level of anxiety results in poor communication, difficulty
with attention and comprehension […].3
Next, Fliss reported that Terwilliger had a fair ability to understand,
remember and carry out simple and detailed but not complex job instructions. She
reported Terwilliger had poor or no ability to understand, remember and carry out
complex job instructions. In support of this, Fliss wrote that Terwilliger
3

The remainder of this narrative was cut off during photo-copying.

27

experiences memory and comprehension difficulties attributed to racing negative
thoughts, which is a symptom of her mental health difficulties of mood and
anxiety.
Fliss opined Terwilliger has a fair ability to maintain her personal
appearance but poor or no ability to behave in an emotionally stable manner, to
relate predictably in social situations, or to demonstrate reliability. In support of
this, Fliss wrote that Terwilliger must be reminded to take showers at the
residential facility she lived at. She noted that Terwilliger’s emotional presentation
varies. She can become “intensely anxious, shaking so hard that she moved
objects on my desk from her chair bumping into [it].” Fliss wrote that this was the
only client for whom this had ever occurred. She reported that this would impact
Terwilliger’s ability to be reliable, behave in an emotionally stable manner, and be
predictable. Finally she wrote that Terwilliger’s “day to day presentation of
symptoms can vary drastically, as can her ability to even function well in
residential treatment.” (Tr. 719-720).
Psychiatric Review Technique
After a review of Terwilliger’s then-available medical records, a psychiatric
review technique was completed by Elissa Lewis, Ph.D., on July 25, 2011. Lewis
evaluated Terwilliger’s records under the following categories: 12.03
Schizophrenic, Paranoid and Other Psychotic Disorders; 12.04 Affective
28

Disorders; 12.06 Anxiety-Related Disorders; 12.08 Personality Disorders; 12.09
Substance Addition Disorders. Under each of the categories, Lewis found that a
medically determinable impairment was present that did not satisfy the diagnostic
criteria. She determined Terwilliger had major depressive disorder, borderline
personality disorder, polysubstance dependence, and questionable diagnoses of
schizoaffective disorder, schizophrenia, and anxiety disorder, NOS. She found
Terwilliger was mildly limited in activities of daily living and moderately limited
in her ability to maintain social functioning and to maintain concentration,
persistence, or pace. Lewis found Terwilliger has had no repeated episodes of
decompensation of extended duration, and for categories 12.03, 12.04, and 12.06
there was no evidence of the presence of any “C” criteria. (Tr. 657-670).
Residual Functional Capacity Assessment
A physical residual functional capacity assessment was completed by a
single decisionmaker (SDM) on July 25, 2011. The primary diagnosis is listed as
possible seizure disorder and the SDM noted that the RFC was limited for hazards
due to possible seizure disorder. The SDM found Terwilliger had no exertional,
manipulative, visual, or communicative limitations. Under postural limitations, the
SDM determined Terwilliger could frequently stoop, kneel, crouch, and crawl;
occasionally climb ramps, stairs, ladders, ropes, and scaffolds; and never balance.

29

The SDM found Terwilliger should avoid concentrated exposure to environmental
hazards, such as machinery and heights. (Tr. 70-75).
A mental residual functional capacity assessment was completed by Elissa
Lewis, Ph.D., on July 25, 2011. Lewis found that Terwilliger was moderately
limited in her ability to understand, remember, and carry out detailed instructions;
work in coordination with or proximity to others without being distracted by them;
interact appropriately with the general public; accept instructions and respond
appropriately to criticism from supervisors; and get along with coworkers or peers
without distracting them or exhibiting behavioral extremes. In all other areas of
functioning, Lewis found Terwilliger was not significantly limited. (Tr. 671-73).
Terwilliger’s Testimony before ALJ
At the administrative hearing before the ALJ on November 20, 2012,
Terwilliger testified that she was currently residing at the Southside Towne House
facility in Mexico, Missouri. She stated that she completed high school and two
years of college during which she studied social work. She dropped out of college
due to stress, but at the time she dropped out, she was failing. (Tr. 35-36).
She testified that she worked at a care facility for the mentally disabled
called the Home of Hope in Vinita, Oklahoma. She worked there for two years as
a cook and/or medical tech, assisting and supervising the residents who worked in
the diner/kitchen. She testified that the last time she worked there was 2008. She
30

was fired from her job at Home of Hope for insubordination – specifically, she had
an argument with her superiors. (Tr. 36-39).
Later in the hearing, the ALJ attempted to clarify with Terwilliger how it
was that the same job was listed as both a cook and a medical tech/medical
provider. The ALJ noted that Terwilliger herself had listed that she was a medical
tech from January 2010 to May 2010. Terwilliger testified that she was more of a
job coach who helped the residents prepare meals, but they were not allowed to
operate the grill, so she did that (thus, the cook element). The ALJ asked
Terwilliger to explain why she had written that she also helped with patient
services, daily life skills, filling out job applications, and building resumes when
she was not doing any of that. Terwilliger testified that she did not remember
writing that. She testified that a caseworker had helped her fill out her work
history report. (Tr. 58-63).
When asked to describe how her impairments affect her, Terwilliger stated
her depression “gets the best of her,” and on those days she cannot get out of bed
and has a lot of anxiety. She stated she has a hard time getting along with people
and that being around people makes her nervous. She testified that she had a
nervous breakdown after her mother’s death and was never able to come back from
it. From 2008 to 2010, she was homeless and living on the streets. (Tr. 39-40).

31

Terwilliger testified she has used drugs since the age of 24 but was not using
at the time of the hearing. However, she had recently had to leave her previous
living facility, the Hope Center, because she had a slip-up and used over-thecounter cough medicine. She also influenced another resident to use cough
medicine when she did, and during the course of her stay, she influenced other
residents to do things like go out after curfew or “sneak down” and smoke. (Tr.
40-41, 54).
At the time of the hearing, Terwilliger testified she had been on her current
prescription drugs for her mental health (Geodon, Effexor, Klonopin) for a week
and a half, and it was too soon to know if they were providing any benefit or
causing any side effects. She had previously taken Effexor on a regular basis, and
it was effective, but then all of her medicines stopped being effective. (Tr. 42-43).
Terwilliger testified that she was still seeing Dr. Fliss for counseling
sessions every other week, but she had not yet seen her new psychiatrist (the doctor
who would prescribe her medications). She described additional mental health
symptoms as mood swings and, when she is very depressed, hearing voices telling
her to hurt herself. She testified that she had overdosed because of these voices.
When asked, she stated was very anxious being at the hearing and interacting with
the court guard. Her caseworker had accompanied her to the hearing to help her
cope. She sees her caseworker once a week. (Tr. 44-46).
32

Terwilliger claimed at the hearing that she does not remember things like
dates, names, and anniversaries very well. She does not have group sessions or
otherwise really interact with the people at her current residential facility, and she
cannot concentrate long enough to read. She testified that she argues with the care
providers at her facility over things like smoking and taking her insulin. On a
typical day, she gets up at 7:30, goes back to sleep until 10:30, then lays around in
bed. She testified that she does not watch much TV and does not have visitors, but
she likes to listen to music. (Tr. 47-50).
In August 2012, Terwilliger attempted to hold down a job at William Woods
University, in which it was her responsibility to clean the dining room. She
testified that she had a lot of anxiety around the students and hid in the bathroom
and “called in” a lot. She worked there approximately 12 hours per week and was
fired after one month. She testified that she called in because of depression and
anxiety – she did not feel she could function in public on those days. (Tr. 50-51).
She testified that her last hospitalization occurred because she attended a
counseling session with Dr. Fliss and told her she felt like hurting herself, so Dr.
Fliss decided it would be best if Terwilliger went to the hospital for a medicine
change. She was in St. Mary’s for seven days. She testified that in the past she has
burned herself as a result of depression and stress. (Tr. 51-52).

33

Vocational Expert’s Testimony
Vocational expert Gary Weimholt also testified before the ALJ. Weimholt
first classified the prior job held by Terwilliger at the Home of Hope as, in part, an
institutional cook, which he testified has a light or medium physical demand level
and is a semi-skilled job. (Tr. 57, 59-60). The “other part of the job” he eventually
classified as mental retardation aide – medium, semi-skilled. 4 (Tr. 64).5
Weimholt then responded to a hypothetical posed by the ALJ. Specifically,
the ALJ asked Weimholt to consider a hypothetical individual with the past job of
mental retardation aide, assume that the individual could occasionally climb ramps
and stairs, could not perform work on ladders, ropes and scaffolds, and should
avoid concentrated exposure to unprotected heights and fast moving machinery.
The hypothetical individual could perform simple work, interact occasionally with
co-workers, supervisors and the public, but was likely to do best if allowed to work
independently. The individual could adapt to change and would be able to tolerate
a schedule. Weimholt testified that a person with these functional limitations
would not be able to do Terwilliger’s past work. He testified that such a
hypothetical person would be able to perform the job of cleaner housekeeper,
4

The vocational expert recognized that the residents at the facility Terwilliger worked at may not
have been children but stated he was still going to classify the job in this way.
5

It is unclear from the record if Weimholt ultimately found Terwilliger’s Home of Hope job to
consist of two parts or whether he determined “mental retardation aide” was sufficient to cover
all of Terwilliger’s responsibilities and duties. In any case, this part of the decision has not been
challenged.

34

industrial cleaner, and metal furniture assembler. He testified there were
approximately 6500 cleaner housekeeper jobs in the regional economy and
325,000 such jobs in the national economy, 2500 industrial cleaner jobs in the
regional economy and 125,000 such jobs nationally, and 1200 metal furniture
assembly jobs in the regional economy and 60,000 such jobs nationally. (Tr. 6567).
The ALJ then posed a second hypothetical to Weimholt. She asked him to
consider an individual who could perform simple work but could not tolerate
contact with co-workers, a supervisor, or the public. This person would require a
slow pace and have no tolerance for change in the workplace. This person would
likely be absent from work four days per month. Weimholt testified that there
would be no jobs available for such a person. (Tr. 67).
Finally, Terwilliger’s counsel asked Weimholt to consider a third
hypothetical individual of the same age, education, and background as Terwilliger.
This hypothetical person would have no useful ability to deal with the public,
interact with supervisors, deal with work stresses, function independently, maintain
attention and concentration, behave in an emotionally stable manner, relate
predictably in social situations, or demonstrate reliability. Weimholt testified that
such a person would be unable to perform any work in the national economy. (Tr.
68).
35

III.

Standard for Determining Disability under the Social Security Act
Social security regulations define disability as the inability 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 twelve months. 42
U.S.C. § 416(i)(1); 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 404.1505(a); 20
C.F.R. § 416.905(a).
Determining whether a claimant is disabled requires the Commissioner to
evaluate the claim based on a five-step procedure. 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).
First, the Commissioner must decide whether the claimant is engaging in
substantial gainful activity. If so, he is not disabled.
Second, the Commissioner determines if the claimant has a severe
impairment which significantly limits the claimant's physical or mental ability to
do basic work activities. If the impairment is not severe, the claimant is not
disabled.
Third, if the claimant has a severe impairment, the Commissioner evaluates
whether it meets or exceeds a listed impairment found in 20 C.F.R. Part 404,

36

Subpart P, Appendix 1. If the impairment satisfies a listing in Appendix 1, the
Commissioner will find the claimant disabled.
Fourth, if the claimant has a severe impairment and the Commissioner
cannot make a decision based on the claimant's current work activity or on medical
facts alone, the Commissioner determines whether the claimant can perform past
relevant work. If the claimant can perform past relevant work, he is not disabled.
Fifth, if the claimant cannot perform past relevant work, the Commissioner
must evaluate whether the claimant can perform other work in the national
economy. If not, he is declared disabled. 20 C.F.R. § 404.1520; § 416.920.
Evaluation of Mental Impairments
The Commissioner has supplemented the familiar five-step sequential
process for evaluating a claimant's eligibility for benefits with additional
regulations dealing specifically with mental impairments. 20 C.F.R. § 920a. As
relevant here, the procedure requires an ALJ to determine the degree of functional
limitation resulting from a mental impairment. The ALJ considers limitation of
function in four capacities deemed essential to work. 20 C.F.R. § 416.920a(c)(2).
These capacities are: (1) activities of daily living; (2) social functioning; (3)
concentration, persistence or pace; and (4) deterioration or decompensation in
work or work-like settings. 20 C.F.R. § 416.920a(c)(3). After considering these
areas of function, the ALJ rates limitations in the first three areas as either: none;
37

mild; moderate; marked; or extreme. The degree of limitation with regard to
episodes of decompensation is determined by application of a four-point scale:
none; one or two; three; or four or more. See 20 C.F.R. § 416.920a(c)(4).
IV.

The ALJ’s Decision
Applying the five-step sequential evaluation, the ALJ first determined that

Terwilliger had not engaged in substantial gainful activity since the date she
applied for SSI benefits.
At step two, the ALJ found that Terwilliger had severe impairments of
“diabetes mellitus, morbid obesity, and mental impairments variously diagnosed as
borderline personality disorder, anti-social personality disorder, bipolar disorder,
psychotic disorder, post-traumatic stress disorder, depression, and substance
abuse.” She noted that Terwilliger is capable of working despite her use of drugs.
Therefore, while her substance abuse is an impairment, the ALJ found Terwilliger
is not disabled even with the impairments, and her substance abuse is not material
to a determination of disability.
At step three, the ALJ determined that Terwilliger does not have an
impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1. See also 20 CFR 416.920(d). In making this determination, the ALJ reviewed
whether Terwilliger’s mental impairments met the criteria of listings 12.04, 12.06,
38

12.08, or 12.09. To do this, the ALJ considered whether the “paragraph B” criteria
were satisfied and determined that they were not. She found Terwilliger had mild
restrictions in the activities of daily living; moderate difficulties with social
functioning; moderate difficulties with regard to concentration, persistence, or
pace; and no episodes of decompensation of extended duration. The ALJ
determined that none of the “paragraph C” criteria of the relevant listings were
satisfied.
Next, the ALJ found that Terwilliger has the residual function capacity to
perform a full range of work at all exertional levels but can only occasionally
climb ramps and stairs; never climb ladders, ropes or scaffolds; and never have
exposure to unprotected heights and fast-moving machinery. She determined
Terwilliger should be limited to simple work, occasionally interacting with
coworkers, supervisors, and the public and, preferably, allowed to work
independently. The ALJ determined Terwilliger can adapt to change and tolerate a
schedule.
In fashioning Terwilliger’s RFC, the ALJ determined that her medical
impairments could be expected to cause some of her alleged symptoms, however,
after reviewing the evidence of record and evaluating the credibility of
Terwilliger’s allegations, she determined that Terwilliger’s impairments limit her
only to the extent stated in the ALJ’s residual functional capacity finding. The
39

ALJ opined that the evidence suggested Terwilliger’s subjective complaints as to
the disabling nature of her symptoms were out of proportion to the objective
medical evidence. In concluding this, she noted that Terwilliger’s mental status
examinations have “yielded largely normal results,” that her “behavior during
mental status examinations was incongruent with her allegations,” that while
seeking care for her conditions, she was “noted to have no obvious depression or
psychosis,” that she was described as manipulative, that she was often assigned a
global assessment of functioning (GAF) score of 55, that a history of
noncompliance with medication was noted in her history, that there was a question
in her records of whether she was malingering, and she was noted to be resistant to
intervention and only marginally reliable. (Tr. 17). Additionally, the ALJ noted
that there was a significant question, with regard to many of Terwilliger’s episodes
of treatment, of whether Terwilliger was actually experiencing the symptoms she
alleged or whether her “hospitalizations were motivated by issues of
homelessness.” (Tr. 18). The ALJ also noted that her motivation for seeking
treatment and her subjective complaints lacked credibility because the medical
record showed that she engaged in drug-seeking behavior. (Tr. 18). Finally, the
ALJ noted that Terwilliger’s “poor work and earnings history and multiple
applications for disability benefits raise questions as to whether the claimant’s
continuing unemployment is actually due to medical impairments.”
40

The ALJ accorded significant weight to the medical opinion of Disability
Determination Services consultant Elissa Lewis, Ph.D., who reviewed
Terwilliger’s record but did not examine her. The ALJ credited Lewis’ opinion
because Lewis had access to a significant number of Terwilliger’s treatment
records, she conducted a comprehensive review, and her opinion is consistent with
the record as a whole, as well as with Terwilliger’s self-reports.
The ALJ accorded reasonable weight to the medical opinion of Dr.
Sarmistha Bhalla, M.D., as it was expressed in Terwilliger’s GAF score, because it
was based on an examination of Terwilliger and is consistent with the record as a
whole. The ALJ noted that Bhalla evaluated Terwilliger prior to establishing a
treatment relationship but “did not express an opinion that the claimant was totally
disabled, despite ongoing treating relationship.”
The ALJ accorded limited weight to the medical opinion of Dr. Marta Fliss,
Ph.D. In doing so, the ALJ noted that Dr. Fliss “admitted to filling out the abovementioned forms with the claimant, even though she believed the claimant was
high at the time.” Furthermore, the ALJ believed Fliss’ assessment reflected
Terwilliger’s limitations when she is using drugs and was influenced by both
Terwilliger’s drug use and her self-reporting. The ALJ found Fliss’ opinion was
“inconsistent with numerous other treatment notes showing that Terwilliger had
only moderate symptoms and impairments.”
41

At step four, in light of Terwilliger’s RFC, the ALJ relied on the testimony
of the vocational expert in determining that Terwilliger is unable to perform past
relevant work.
At step five, the ALJ again relied on the vocational expert’s testimony in
determining that Terwilliger is capable of making a successful adjustment to other
work that exists in significant numbers in the national economy and concluded that
Terwilliger was not disabled.
V.

Standard of Review
This court’s role on review is to determine whether the Commissioner’s

decision is supported by substantial evidence on the record as a whole. Johnson v.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2003). “Substantial evidence” is less than a
preponderance but enough for a reasonable mind to find adequate support for the
ALJ's conclusion. Id. When substantial evidence exists to support the
Commissioner's decision, a court may not reverse simply because evidence also
supports a contrary conclusion, Clay v. Barnhart, 417 F.3d 922, 928 (8th Cir.
2005), or because the court would have weighed the evidence differently.
Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992).
To determine whether substantial evidence supports the decision, the court
must review the administrative record as a whole and consider:
(1) the credibility findings made by the ALJ;
42

(2) the education, background, work history, and age of the claimant;
(3) the medical evidence from treating and consulting physicians;
(4) the plaintiff's subjective complaints relating to exertional and
nonexertional impairments;
(5) any corroboration by third parties of the plaintiff's impairments; and
(6) the testimony of vocational experts, when required, which is based upon
a proper hypothetical question.
Stewart v. Sec'y of Health & Human Servs., 957 F.2d 581, 585–86 (8th Cir. 1992).
VI.

Discussion
In this appeal, Terwilliger argues that the ALJ’s decision is not supported by

substantial evidence on the record as a whole because the ALJ improperly
evaluated and weighed the opinion of treating psychologist Dr. Marta Fliss.
Terwilliger avers that the ALJ’s reasons for not giving Fliss’ opinion controlling
weight were legally insufficient. Even if they were sufficient, however, she argues
the ALJ’s decision is still unsupported by substantial evidence because she failed
to properly evaluate what weight to give Fliss’ opinion under 20 C.F.R. §
416.927(d) and SSR 96-5p.
As discussed above, in according Fliss’ opinion limited weight, the ALJ
appeared to rely on three factors. First, she noted that Fliss “admitted to filling out
the above-mentioned forms with the claimant, even though she believed the
43

claimant was high at the time.” Second, she believed Fliss’ assessment reflected
Terwilliger’s limitations when she is using drugs and was influenced by both
Terwilliger’s drug use and her self-reporting. Finally, the ALJ found Fliss’
opinion was “inconsistent with numerous other treatment notes showing that
Terwilliger had only moderate symptoms and impairments.”
The regulations require that a treating source’s opinion be given controlling
weight if the opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial
evidence in the case record.” 20 C.F.R. § 416.927(c)(2). However, “[a] treating
physician's opinion does not automatically control, since the record must be
evaluated as a whole.” Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011). An
ALJ may discount or disregard the opinion of a treating physician where other
medical assessments are supported by better medical evidence, or where the
treating physician renders inconsistent opinions that undermine his credibility. Id.
at 897-98.
Whether Fliss’ Opinion Was Well-Supported by Acceptable Diagnostic Techniques
Fliss was a treating source whose records indicate that she met with
Terwilliger on at least nine occasions for an hour or longer. Seven of those
meetings occurred prior to Fliss’ submission of her medical assessment. Although
the ALJ’s opinion did not explicitly state that Fliss’ opinion was not “well44

supported by medically acceptable clinical and laboratory diagnostic techniques,”
her belief that Fliss was improperly influenced either by Terwilliger’s drug use or
her self-reporting seems to indicate the ALJ’s suspicion of Fliss’ methods.
I find that the ALJ’s determination, to the extent she made one, that Fliss’
methods were not supported by medically acceptable diagnostic techniques
because Fliss was improperly influenced by Terwilliger’s drug use and/or selfreporting is not supported by substantial evidence. First, the ALJ opined that Fliss’
assessment “appears to reflect the claimant’s limitations when the claimant is using
drugs as the claimant admitted to using drugs [on] several occasions before and
after Dr. Fliss completed her statement.” Although many of Fliss’ therapy notes
indicate that Terwilliger reported relapsing at various times outside her
appointments, the only note in which Fliss stated she believed Terwilliger was high
during their therapy session is the one from October 24. There is no evidence to
suggest that Terwilliger was high during the remaining sessions on record.
However, even if Terwilliger were high in other therapy sessions, Fliss possesses a
doctorate degree in psychology and has given no indication that she would be
unable to separate the symptoms or effects of Terwilliger’s substance abuse from
the symptoms or effects of Terwilliger’s other mental health issues.
Furthermore, the Medical Assessment of Ability to Do Work-Related
Activities (Mental) form clearly mandates, at the very top, in underlined language,
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that the medical care provider’s assessment must be made based on the patient’s
condition aside from any drug or alcohol abuse problems. Fliss did not indicate,
anywhere on the form (or in any of her therapy notes or responses to
interrogatories), an inability to separate these issues. And nothing in Fliss’ notes
from October 24, the day she completed the assessment, leads to a conclusion that
she did not follow the instructions. Fliss’ therapy notes report a belief that
Terwilliger was high on October 24. But nothing indicates that the assessment was
completed based exclusively on Fliss’ observations of Terwilliger on October 24
instead of on her observations of Terwilliger during their previous six meetings.
Additionally, Fliss’ notes from October 24 state that completing the assessment
“prompted several important discussions….including the role substance abuse had
on [Terwilliger’s] mental health and vice versa.” This language indicates an effort
by Fliss to separate symptoms caused by Terwilliger’s substance abuse from
symptoms caused by her other mental health impairments, not a failure to do so.
As for the ALJ’s assertion that Fliss was unduly influenced by Terwilliger’s
self-reporting, I find no evidence of this in Fliss’ notes, and the ALJ did not cite
any specific evidence to support her allegation. It is clear that therapy sessions
between Fliss and Terwilliger involved a two-way discussion about Terwilliger’s
addictions and other mental health problems. But, that is not out of the ordinary

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for a therapy session, and in any case that alone does not establish evidence of
unacceptable diagnostic techniques.
Whether Fliss’ Opinion Was Inconsistent with Other Substantial Evidence
Next, the ALJ discounted Fliss’ opinions because they were “inconsistent
with numerous other treatment notes showing that the claimant had only moderate
symptoms and impairments.” Assuming this constitutes a finding by the ALJ that
Fliss’ opinions were inconsistent with other substantial evidence in the case record,
I conclude the ALJ’s decision is not supported by substantial evidence on the
record.
Fliss opined that Terwilliger’s occupational limitations were a result, almost
exclusively, of Terwilliger’s anxiety and depression. She noted that during
Terwilliger’s brief employment in August 2012, Terwilliger experienced
heightened symptoms of anxiety and depression, was easily overwhelmed, had
panic attacks, and, as a result of her heightened anxiety, displayed poor
communication and difficulties with attention and comprehension. Fliss next
opined that Terwilliger experiences memory and comprehension difficulties due to
racing negative thoughts, which are a symptom of her mood and anxiety problems.
She reported that Terwilliger experiences intense episodes of anxiety, which affect
her ability to be reliable and predictable and behave in an emotionally stable

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manner. She noted that Terwilliger’s presentation of symptoms can vary
drastically from day to day.
In her discussion of Fliss’ opinion, the ALJ did not specifically state which
medical records she felt were inconsistent with Fliss’ assessment. However,
earlier in her opinion, the ALJ discussed other medical records, and in doing so,
appeared to credit records indicating that Terwilliger experienced depression and
anxiety. Specifically, she opined that “[m]ental status examinations revealed a flat
or constricted affect, depressed, angry or anxious mood; psychomotor retardation;
circumstantial thought process; hallucinations and poor insight and judgment…”
However, she noted, many of the mental status examinations “yielded normal
results in other areas.” This evidence (and the ALJ’s discussion of it), instead of
conflicting with Fliss’ opinion, appears to support it. The medical records, or
portions thereof, that the ALJ credited supported Fliss’ finding of depression and
anxiety. The medical records, or portions thereof, that the ALJ did not credit,
spoke to health issues that did not contribute to Fliss’ opinion of Terwilliger’s
ability to work.
Additionally, in performing her credibility assessment, the ALJ seemed to
discount Terwilliger’s own complaints of anxiety based on three records. (Tr. 17,
citing Exhibits 16F/6, 20/F3 and 36/F4). However, in two of the cited records,
despite noting that Terwilliger did not appear anxious at the time of her exam, the
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providers nonetheless still credited her reports of anxiety. One of them rendered a
diagnosis of anxiety disorder (among other mental health diagnoses) and the other
rendered a diagnosis of major depressive disorder, recurrent, with anxiety. (Tr.
508, 788).
Most, if not all, of Terwilliger’s medical records during the relevant time
period mention the presence of anxiety, depression, or both. From late 2011
through mid-2012, while Terwilliger was residing in a supported living facility,
there is little or no evidence that Terwilliger was using drugs, and yet she still
reported the presence of depression and anxiety. In fact, there is significant
evidence throughout the record that Terwilliger has substantial difficulty
functioning properly in her day-to-day life even while residing in an adult care
facility where her activities, drug use, and mental health are closely monitored.
This evidence supports Fliss’ opinion that Terwilliger would have serious
problems transitioning to and maintaining a job.
Finally, in fashioning the mental portion of Terwilliger’s RFC, the ALJ
primarily relied on the opinion of Elissa Lewis, Ph.D., who did not examine
Terwilliger but reviewed her records on July 25, 2011. Lewis determined that
Terwilliger had, among other impairments, major depressive disorder and a
questionable diagnosis of anxiety disorder. Lewis found Terwilliger would be only
mildly to moderately limited in her ability to function in a job. The ALJ found that
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Lewis’ opinion was “consistent with the record as a whole, including treatment
notes obtained after she rendered her opinion, as well as with the claimant’s selfreports.”
As an initial matter, Terwilliger has pointed out that the ALJ’s interpretation
of Terwilliger’s self-reports varied throughout her decision. First the ALJ
concluded that Terwilliger’s self-reports described “disabling symptoms.” Next,
the ALJ concluded that Lewis’ opinion that Terwilliger did not have disabling
symptoms was supported by Terwilliger’s self-reports. Finally, the ALJ concluded
that Fliss’ opinions, which seemed to find disabling symptoms, were improperly
influenced by Terwilliger’s self-reports (suggesting that Terwilliger actually did
report disabling symptoms). These discrepancies support my conclusion that the
ALJ’s analysis of the weight to accord Fliss’ opinion was problematic.
More importantly, however, in the absence of other medical evidence
inconsistent with Fliss’ assessment, Lewis’ opinion by itself is not sufficient
evidence to discredit Fliss’ medical opinion.6 “The opinions of non-treating
practitioners who have attempted to evaluate the claimant without examination do
not normally constitute substantial evidence on the record as a whole.” Shontos v.

6

It should be noted that the opinion of consulting source Dr. Joan Bender, dated December 1,
2010, supports the ALJ’s RFC determination, but Dr. Bender’s opinion was never weighed,
cited, or discussed by the ALJ. It was also rendered prior to the date of Terwilliger’s alleged
disability and is of very limited relevance to the effect of her impairments today.

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Barnhart, 328 F.3d 418, 427 (8th Cir. 2003); see also Nevland v. Apfel, 204 F.3d
853, 858 (8th Cir. 2000); Jenkins v. Apfel, 196 F.3d 922, 924-25 (8th 1999).
VII. Conclusion
For the aforementioned reasons, I conclude that the ALJ failed to accord
proper weight to the opinion of treating source Dr. Marta Fliss, and therefore her
decision was not supported by substantial evidence on the record. As a result, I
will remand for the ALJ to render a decision consistent with this order.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
reversed and remanded under sentence four of 42 U.S.C. § 405(g) for further
proceedings consistent with this Memorandum and Order.
A separate judgment in accordance with this Memorandum and Order is
entered this same date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 31st day of March 2015.

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