Lillard v. Berryhill
Filing
34
MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and this case is REMANDED to the Commissioner for calculation and award of benefits with a disability onset date of November 17, 2010. An appropriate Judgment is entered herewith. Signed by District Judge Catherine D. Perry on 3/25/19. (EAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
OCEAN M. LILLARD,
Plaintiff,
v.
NANCY A. BERRYHILL, Deputy
Commissioner of Operations for
Social Security,1
Defendant.
)
)
)
)
)
)
)
)
)
)
)
No. 2:17 CV 83 CDP
MEMORANDUM AND ORDER
Plaintiff Ocean M. Lillard seeks judicial review of the Commissioner’s
adverse decision denying his application for supplemental security income. 2
For the reasons that follow, the decision is reversed and this case is remanded to
the Commissioner with instructions to award benefits.
Procedural History
On December 15, 2010, Dusty Black filed an application for supplemental
security income (SSI) on behalf of her then-minor child, Ocean M. Lillard, alleging
that Lillard became disabled on November 17, 2010, because of attention deficit
hyperactivity disorder (ADHD), post-traumatic stress disorder (PTSD), depression,
1
Nancy A. Berryhill’s term as Acting Commissioner of Social Security expired in November
2017. She continues to lead the agency as Deputy Commissioner of Operations.
2
Lillard was born female but identifies as male. In this Memorandum and Order, I will refer to
Lillard using masculine pronouns, although portions of the administrative transcript do not.
anxiety, and emotional disturbance. (Tr. 88-85, 114.) The Social Security
Administration denied the claim for benefits on February 4, 2011. (Tr. 32-35.)
Upon Black’s request, a hearing was held before an administrative law judge (ALJ)
on June 13, 2013, at which Black and Lillard testified. (Tr. 596-663.) On August
29, 2013, the ALJ issued a decision finding Lillard not disabled. (Tr. 10-27.)
After the Appeals Council denied Black’s request for review of the ALJ’s decision
(Tr. 5-8), Black filed a civil action in this Court seeking judicial review. Black
o/b/o O.L. v. Colvin, Case No. 2:14CV95 DDN (E.D. Mo. 2014). On August 24,
2015, United States Magistrate Judge David D. Noce remanded the matter to the
Commissioner for further proceedings, finding that the Commissioner’s final
decision was not supported by substantial evidence on the record as a whole and
was not consistent with the Regulations and applicable law. (See Tr. 692-712.)
Upon receipt of Judge Noce’s Order, the Appeals Council vacated the
Commissioner’s earlier decision and remanded the case to an ALJ for further
proceedings consistent with the Order.3 The ALJ held supplemental hearings on
February 7 and February 10, 2017, at which Black, Lillard, and vocational and
medical experts testified. (Tr. 1399-1452, 1453-1510.) On August 3, 2017, the
ALJ issued a decision finding that Lillard was not disabled. (Tr. 667-90.) Appeals
Council review of the decision was not sought, and the record contains no notice
3
Upon the Appeals Council’s remand, the matter was assigned to and heard by the same ALJ
who heard and determined the matter initially.
-2-
that the Appeals Council conducted its own review. Accordingly, the ALJ’s
decision of August 3, 2017, became the Commissioner’s final decision sixty-one
days after its issuance. (See Tr. 665.)
On June 22, 2016, while the case was pending before the Commissioner on
remand, and before the ALJ entered her decision, Lillard turned eighteen. Under
20 C.F.R. § 416.924(f) (2017),4 therefore, the ALJ applied the child standard for
determining disability for the period before Lillard turned eighteen, and the adult
standard for the period from Lillard’s eighteenth birthday up to the date of the
decision. For both periods, the ALJ found that Lillard was not disabled. (Tr. 66790.) Lillard now seeks judicial review of that final adverse decision. 42 U.S.C. §
405(g).
With respect to the ALJ’s child-disability decision, Lillard claims that the
ALJ ignored Judge Noce’s directive and continued to improperly accord great
weight to the opinion of a non-examining state-agency psychologist in finding that
Lillard did not functionally equal the Listings. Lillard also claims that the ALJ
ignored other evidence of record and failed to consider his environment when
determining his ability to function, as required by the Regulations. As to the ALJ’s
adult-disability decision, Lillard claims that the ALJ erred in assessing Lillard’s
residual functional capacity (RFC) and erred by relying on the testimony of a
4
Because the decision under review is dated August 3, 2017, I apply the Regulations that were in
effect at that time. All citations to the C.F.R. are to the 2017 edition.
-3-
medical expert whose opinion was based on an incomplete review of the record.
Lillard asks that I reverse the ALJ’s decision and award benefits. Such relief is
warranted in this case.
Background5
This is a complicated case.
Lillard has had significant mental issues since a very young age, with the
record showing that he was diagnosed in 2008 with major depressive disorder,
ADHD, PTSD, and learning disabilities. He was ten years old. (Tr. 364-65.) He
had been sexually abused by his father, and he witnessed his mother suffer severe
physical and verbal abuse from his father and from another man with whom she
later had a relationship. (Tr. 280-88.)
At the time of his diagnoses in 2008, Lillard was taking Adderall, Lexapro,
and Clonidine (Tr. 364-65), and the record shows that he continued with these
medications through 2009 and 2010 (e.g., Tr. 291, 365).6 Abilify was added to his
medication regimen in 2010. (See Tr. 366, 370.) Lillard engaged in unusual
behaviors during this period, including acting like a cat, eating inedible items, and
making obscene gestures. He also heard voices at night and experienced dizzy
5
In his August 2015 memorandum opinion, Judge Noce carefully summarized the medical and
other evidence of record, which was dated through August 2013. (Tr. 692-712.) Those same
records are included in the administrative transcript on this appeal. (Tr. 28-663.) For purposes
of the present appeal, I adopt Judge Noce’s summary of that evidence. Much of my summary
regarding that period is taken from Judge Noce’s memorandum, with additional details added
through my independent review of the record.
6
The record does not show when these medications were first prescribed or by whom.
-4-
spells which sometimes caused him to pass out. (Tr. 335, 369-70.)7 In August
2010, at twelve years of age, Lillard was charged in circuit court with
misdemeanor assault and stealing. (Tr. 90-91.)
Results from an autism diagnostic examination in August 2010 showed that
Lillard was impaired in socialization and adaptive behavior with clinically
significant problems with social communication, child behavior, and teacherobserved behavior; clinically significant depression with negative mood,
interpersonal problems, and anhedonia; and clinically significant multidimensional
anxiety with physical symptoms and harm avoidance. While the examiner felt that
Lillard did not qualify for an autism diagnosis, she noted that Lillard clearly had
symptoms of ADHD and social deficits with anxiety and depressive symptoms.
(Tr. 934-35.)
In September 2010, upon an increase in Lexapro, Lillard experienced an
increase in mood swings, depression, and frustration. Lillard’s psychiatrist, Dr.
Derlukiewicz, nevertheless instructed Lillard to take the Lexapro as prescribed.
Dr. Derlukiewicz also increased the Adderall dosage because of increased ADHD
symptoms. (Tr. 340-41.) Lillard’s primary physician, Dr. Thornton, questioned
whether the increased medication caused Lillard’s recent dizziness. (Tr. 369.)
In December 2010, Lillard’s mother applied for child’s disability benefits on
7
Lillard’s mother later reported to treating physicians that Lillard experienced dizziness since he
was two years old. (See Tr. 1063, 1139.)
-5-
behalf of Lillard, with an onset date of November 17, 2010.
Despite Lillard’s medication regimen, Dr. Derlukiewicz noted that Lillard
continued to not do well, with continued depression, fatigue, lack of motivation,
abusive behavior, short attention span, insomnia, and isolation. Throughout 2011,
Dr. Derlukiewicz increased the dosages of all of Lillard’s psychotropic
medications. Although Lillard experienced intermittent periods of improvement
with depressive and anxiety-related symptoms, he continued to have a short
attention span. In November 2011, after months of increased dosages of
medication, Lillard began feeling suicidal and was having suicidal thoughts.
Concerned that Abilify caused these thoughts of self-harm, Lillard’s mother
stopped giving the medication to Lillard. Within days of stopping Abilify,
Lillard’s thoughts of suicide subsided, but his mood changes continued. (Tr. 526.)
In 2012, Lillard experienced several episodes of headaches, dizziness,
feeling faint, and visual changes. In June 2012, Lillard’s mother stopped all
medications because she thought they caused these disturbances. Physical
examinations by Dr. Thornton revealed nothing specific to cause the phenomena,
which made him think that Lillard’s psychosocial issues and a possible eating
disorder were the source of the problem.
In October 2012, Lillard’s school reported that Lillard was experiencing
auditory hallucinations, was looking and behaving oddly, and was making suicidal
statements. Lillard’s mother continued to be concerned regarding the suspected
-6-
effects of Lillard’s medication on his physical and mental state and determined to
change psychiatrists. Lillard’s mother testified before the ALJ that she felt that Dr.
Derlukiewicz was just trying to push medications onto her child. In December
2012, Dr. Yager, Lillard’s new psychiatrist, restarted Lillard on Lexapro.
In the meanwhile, Lillard continued to experience dizziness and fainting,
and Dr. Thornton continued to suggest psychosocial emotional screening given that
he could not identify a specific physical cause for the episodes. In February 2013,
Lillard’s mother discontinued all of Lillard’s medications again, believing that they
were the cause of the increased dizziness.
On May 28, 2013, Lillard was admitted to Blessing Hospital for cutting and
suicidal ideation. He was fourteen years old. It was noted on admission that
Lillard was taking Zoloft and that the dosage had recently been increased. (Tr.
559.)8 During his hospitalization, Lillard began transitioning from Zoloft to
Effexor and he was given both medications upon discharge on May 31. (Tr. 56263.) On June 7, Lillard reported to Dr. Yager that he stopped taking Effexor
because of increased dizzy spells. While he nevertheless continued to experience
dizziness, he reported that it was not as severe as when he took Effexor. Dr. Yager
diagnosed Lillard with major depressive disorder, moderate to severe, with history
of psychotic features; PTSD; social anxiety; and ADHD. She instructed Lillard to
8
Although counsel’s brief to the Commissioner at the administrative level avers that Lillard was
taking Zoloft as prescribed by Dr. Yager in March 2013 and that the dosage was increased at that
time (see Tr. 581), there is no medical record in the administrative transcript documenting this.
-7-
continue with Zoloft and to take Effexor as prescribed by Blessing Hospital. (Tr.
568.)
In August 2013, Dr. Yager noted that Lillard was taking both Zoloft and
Effexor and complained of increased dizziness since restarting Effexor. (Tr. 58990.) Upon Dr. Yager’s suggestion that the Zoloft dosage be increased, Lillard
complained that the last increase caused him to feel that things were not real.
Noting that the several medications Lillard had taken before were either not helpful
or caused side effects, Dr. Yager determined to maintain the current dosage of
Zoloft. She instructed Lillard to discontinue Effexor. (Tr. 591.)
Between September 2013 and February 2014, Lillard continued to visit Dr.
Yager, who continued him on his low-dose Zoloft. Lillard continued to complain
of dizziness but reported that it was not as severe. During this period, Lillard had
no suicidal ideations and his social anxiety had improved markedly. He felt stable,
had no worries, and was socializing more. Mental status examinations were
essentially normal during this period, and Dr. Yager kept Lillard on the same
treatment regimen. (Tr. 1062-73.)
On April 15, 2014, however, Lillard reported to Dr. Yager that he had been
cutting again. He reported that he had had the urge to hurt other people but cut on
himself instead. Lillard reported that he felt stressed and tense but was not sad.
He had dizzy spells every week or two. With these reports, Dr. Yager considered
Lillard to be a suicide risk. She increased Lillard’s dosage of Zoloft and instructed
-8-
him to immediately seek treatment through therapy. (Tr. 1074-78.)
Lillard was admitted to the Hannibal Medical Clinic on April 24 after having
self-inflicted a deep cut on his leg, requiring stitches. He reported having suicidal
ideation and was transferred to Blessing Hospital for psychiatric care. (Tr. 994.)
Upon admission at Blessing, Lillard reported that his recent increase in medication
made his psychological problems worse. He felt helpless and hopeless and did not
want to take any more medication because of its effects on him. His insight and
judgment were noted to be fair to poor, and his prognosis was poor. He was
discharged from Blessing on April 28 and was prescribed bupropion (Wellbutrin)
upon discharge. (Tr. 950-54.) His diagnoses included major depression-recurrentsevere, PTSD, and social phobia. (Tr. 1013.)
During a follow up visit with therapist Veronica Perkins on April 29, Lillard
reported having issues with his gender identity, feeling like a man trapped in a
girl’s body. (Tr. 1079.)
Lillard returned to the Hannibal Clinic on May 12 and reported that since
starting Wellbutrin, he was experiencing chest pain, shortness of breath, racing
heart, and stomach pains. He was referred back to Dr. Yager for treatment of
anxiety. (Tr. 1017.)
In May and June 2014, both Dr. Yager and therapist Perkins noted that
Lillard was showing improvement with self-esteem and positive mood. Although
Dr. Yager instructed Lillard to continue with Wellbutrin, Lillard’s mother
-9-
discontinued the medication in June because of increased dizziness and racing
heart. Dr. Yager suggested that Lillard visit Dr. Thornton regarding these physical
symptoms but opined that Lillard may be experiencing panic attacks. Lillard
indicated that he wanted to be off of all medications. (Tr. 1087-98.)
In September 2014, Lillard visited a neurologist at Cardinal Glennon
Children’s Hospital regarding his worsening dizziness. He reported that the
episodes were sometimes accompanied by a racing heart, distorted vision, and
chest pressure. He also reported that he had been experiencing headaches for
about two years and that they were now occurring on a near-daily basis. With
respect to his mood, he reported that he generally was doing well and was not
overly anxious since he stopped his medications. Dr. Goretzke opined that
Lillard’s physical sensations may be caused by his lifestyle, that is, lack of
hydration, excess caffeine, and no physical activity. Dr. Goretzke recommended
that Lillard change these habits and return if there was no improvement. (Tr.
1145-47.)
There was no improvement. Lillard went to the emergency room on October
24 with worsening dizziness and headaches and complaints of forgetfulness. (Tr.
1152-78.)9 He was noted to have an unstable gait, with near loss of balance. (Tr.
1161.) A brain CT scan showed hypoattenuation in the white matter of the right
9
Lillard’s mother reported that Lillard had forgotten his telephone number and how to work the
microwave. (Tr. 1152.)
- 10 -
frontal lobe, described as a chronic lesion representing demyelination, infection,
infarction, evidence of prior injury, or tumor. (Tr. 1170.) Florinef was prescribed
for possible tactile tachycardia. (Tr. 1169.) An MRI performed November 10
showed irregular encephalomalacia10 in the right frontal lobe with small cystic
change, most likely the effect of a previous brain injury. (Tr. 1180-81.)
During a follow up visit on December 9, Lillard’s mother informed Dr.
Goretzke that she discontinued Florinef because it did not improve Lillard’s
symptoms. Lillard reported that his symptoms improved after discontinuing the
medication. He continued to experience lightheadedness, however, and reported
being unsteady when he had his most severe headaches. Dr. Goretzke opined that
Lillard’s condition was caused by a previous brain injury rather than a tumor. He
acknowledged the difficulty in determining the extent to which Lillard’s mental
health issues, psychotropic medications, and neurologic issues interacted with each
other over the years and encouraged Lillard to seek psychotherapy. Topamax was
prescribed for headaches. (Tr. 1194-96.)
On April 14, 2015, Dr. Goretzke noted there to be marked improvement with
Lillard’s headaches and dizziness. Lillard reported that he had some intermittent
tingling in his feet as a side effect of Topamax, which Dr. Goretzke indicated as
10
“Encephalomalacia is the softening or loss of brain tissue after cerebral infarction, cerebral
ischemia, infection, craniocerebral trauma, or other injury.” Encephalomalacia in the Frontal
Lobe, https://www.ncbi.nlm.nih.gov/pubmed/ 22134284 (Nov. 1, 2011) (last reviewed Mar. 4,
2019).
- 11 -
normal and nothing to be concerned about. With respect to memory problems
associated with Topamax, Lillard’s mother reported that Lillard always had
memory issues and that they were not “clearly worse” with the medication. Lillard
reported that he was more active and feeling better. He reported that stress
affected his ability to relax, but he expressed reluctance regarding psychotropic
medications or treatment. Dr. Goretzke continued to recommend psychotherapy
but opined that medication was likely not needed for depression or anxiety. (Tr.
1208-09.)
Lillard visited therapist Perkins on July 14, 2015. He was seventeen years
old. Perkins noted that it had been over a year since she had seen Lillard. Lillard’s
mother explained that they had spent the past year dealing with Lillard’s
neurologic issues and that it was now time to address Lillard’s mood and anxiety.
Lillard expressed confusion as to why he was at therapy, reporting that most of his
issues involved not wanting to be around people. He talked about his depression
and PTSD, however, from which Perkins suspected that his past sexual abuse was
underreported. Another appointment was scheduled in two weeks, but Perkins
noted that Lillard was reluctant about continuing with therapy. (Tr. 1099-1100.)11
Lillard returned to Dr. Goretzke on October 13, 2015, and reported
continued dizziness and headaches but that they did not affect his functioning.
11
There is no record that Lillard ever returned to Perkins or any other mental health provider
before he turned eighteen.
- 12 -
Lillard complained that his memory loss had worsened since his last visit, but it
was noted that he had always had memory issues. Noting Lillard’s significant
mental health history, Dr. Goretzke stated that it would be “impossible to know” if
any of Lillard’s mental health symptoms were related to his neurologic condition.
He continued to encourage Lillard to seek psychological help, but it was noted that
past negative experiences with psychotropic medications made him hesitant. Dr.
Goretzke continued Lillard on Topamax. (Tr. 1214-15.)
Lillard graduated from high school in December 2015 with about twenty
other students. Testimony before the ALJ showed that he worked to graduate a
semester early so that he would not have to participate in the May graduation
ceremony with large groups of people. (Tr. 1433.) Lillard had been in special
education/contained classrooms since 2008. He was initially placed and remained
in this environment for several reasons, including emotional disturbance, social
behavioral problems, impaired interactions with peers, lack of social relationships,
difficulty with instruction in large groups, and the need for highly-structured
individualized instruction. The time Lillard spent in the special-ed/contained
classroom eventually increased to 87 percent. He received A’s, B’s, and C’s in his
special-ed classes and D’s and F’s in classes where he was placed in a regular
classroom. He ate his lunch in a separate “recovery” room with a counselor and
was permitted to walk to class five minutes before the bell rang so that he could
avoid students and other people in the hall. (Tr. 1409.) With accommodations,
- 13 -
Lillard took standardized tests in high school and scored Proficient in English-2,
Basic in Biology and English-1, and Below Basic in Algebra and Government.
(Tr. 900.)
On May 16, 2016, Lillard’s high school special-ed teacher, Melinda Prenger,
completed a checklist teacher questionnaire wherein she reported that she had
worked with Lillard for four years and observed the following with respect to his
functioning when compared to same-age children with no impairments:
That Lillard had no or slight problems in acquiring and using information,
with the only exception being that Lillard had an obvious problem
understanding and participating in class discussions;
That Lillard had no problems with attending and completing tasks;
That with respect to interacting and relating with others, Lillard had a
serious problem making and keeping friends and an obvious problem
expressing anger appropriately, but otherwise primarily had no problems;
That Lillard had no problems with moving about and manipulating objects;
and
That with respect to caring for oneself, Lillard had obvious problems with
cooperating in or being responsible for taking needed medication, and using
good judgment regarding personal safety and dangerous circumstances;
serious problems with handling frustration appropriately and using
appropriate coping skills to meet daily demands of the school environment;
and very serious problems with identifying and appropriately asserting
emotional needs, responding appropriately to changes in his own mood, and
knowing when to ask for help.
(Tr. 875-882.) In response to narrative questions, Ms. Prenger explained:
That anxiety with unfamiliar social situations limited Lillard’s interaction
with the public, affecting his daily life;
That Lillard’s social limitations prevented him from being involved or
around large groups of people;
That Lillard required smaller class sizes and behavior supports;
That medication lessened the intensity of the social concerns but did not
- 14 -
eliminate them;
That when on medication, Lillard suffered side effects of being tired and
withdrawn;
That Lillard spent full days in resource and self-contained classrooms;
That Lillard experienced difficulty following through with new tasks,
especially in social situations;
That Lillard experienced difficulty with new concepts but retention was
achieved with repetition;
That any connection with unfamiliar adults was strained and caused anxiety;
and
That Lillard’s emotional pain was apparent through his facial and body cues,
his shutting down, retreating into himself, and excessive drawing and
writing.
Ms. Prenger opined that, based on her observations, she believed that Lillard would
always be limited by his emotional needs. With respect to work limitations, she
opined that Lillard would need a supportive, small group of people in a caring
environment with repetitive tasks. (Tr. 870-73.)
Lillard returned to Dr. Goretzke on May 24, 2016, and reported that his
memory loss was worsening. Given the relative stability of Lillard’s memory
issues during his first few follow-up examinations after starting Topamax, Dr.
Goretzke opined that the recent worsening was related to Lillard’s anxiety and
other mental health issues. Dr. Goretzke again strongly suggested that Lillard seek
assistance from mental health professionals. (Tr. 1220-21.)
On June 22, 2016, Lillard turned eighteen.
Upon referral by his neurologist, Lillard visited Preferred Family Healthcare
on August 18, 2016, for a psychosocial assessment. Lillard’s primary complaints
- 15 -
were of anxiety and dizziness. He reported experiencing sweaty palms, tight
throat, heart pain, shakiness, and a desire to flee. He reported that he experiences
these severe symptoms when he tries to leave the house.12 Lillard had no current
suicidal ideation and reported that past suicidal thoughts and ideations were related
to the medication he was taking at the time. He reported needing extensive help
from his mother. The examiners noted that Lillard struggled with communication
and demonstrated limited verbal communication. They considered Lillard to have
marked limitations with safety issues given his forgetfulness and dizzy spells;
marked limitations with time management given his irregular sleep patterns,
inconsistent eating patterns, no structure with routine, and appointment
management by his mother; marked limitations with nutrition given his substantial
dependence on others; and severe limitations with problem solving given that he
relies on family to solve basic daily living issues. Lillard had no friends and could
only go out into the community if his mother accompanied him. He reported using
coping skills every day and that crying as a coping skill helped a lot. Lillard was
diagnosed with major depressive disorder-recurrent-severe, PTSD, social anxiety
disorder, and panic disorder. He was assigned a Global Assessment of Functioning
12
According to Lillard’s testimony at the hearing on February 10, 2017, he was living with his
grandparents at this time and had been living with them for about four years.
- 16 -
(GAF) score of 33.13 A community caseworker, Ginny King, was assigned to work
with him to achieve identified goals. (Tr. 1259-94.)14
Lillard visited Dr. Spalding, a psychiatrist with Clarity Healthcare, on
August 30, 2016. Lillard reported that he did not want to take any psychotropic
medications because of his suicidal tendencies associated with past medications.
Lillard continued to take Topamax. Dr. Spalding noted Lillard to be anxious. He
diagnosed Lillard with PTSD (moderate), social anxiety disorder (severe), and
panic disorder (moderate). He referred Lillard to therapy. (Tr. 1250-53.)
Lillard visited therapist Shelly Flachs, LCSW, at Clarity Healthcare on
September 12, 2016, and reported that his anxiety caused difficulty with
concentration. Mental status examination showed Lillard’s attention and
concentration to be impaired, and he exhibited slowed thinking. Lillard had
difficulty acknowledging the presence of psychological problems. He stated that
he would like to get his driver’s license but could not focus. Caseworker King
agreed and reported, as an example, that Lillard does not think about looking both
13
A GAF score considers “psychological, social, and occupational functioning on a hypothetical
continuum of mental health/illness.” Diagnostic and Statistical Manual of Mental Disorders,
Text Revision 34 (4th ed. 2000). A GAF score ofError! Main Document Only. 31-40 indicates
some impairment in reality testing or communication (e.g., speech is at times illogical, obscure,
or irrelevant) or major impairment in several areas, such as work or school, family relations,
judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable
to work; child frequently beats up younger children, is defiant at home, and is failing at school).
Id.
14
At the hearing before the ALJ on February 10, 2017, Lillard testified that King was a
counselor at his high school and ate lunch with him in the recovery room. As his community
caseworker, King meets with Lillard every week and accompanies him to doctor’s and therapy
appointments.
- 17 -
ways when crossing the street. Lillard was continued in his diagnoses of PTSD,
social anxiety, and panic disorder. (Tr. 1245-49.) On September 19, Flachs noted
progress with Lillard’s coping skills. He was happy, thoughtful, logical, and
relaxed. He reported that he went to the store during the previous week, although
it made him anxious. Flachs assigned a GAF score of 70.15 (Tr. 1242-44.)
Lillard returned to Flachs on October 3 who opined that Lillard was making
good progress. He was pushing himself to go places despite his desire to not leave
the house. Mental status examination showed Lillard to be paranoid, preoccupied,
and impaired in his ability to make reasonable decisions. Although he exhibited
more confidence, Lillard continued to have difficulty acknowledging the presence
of his psychological problems. (Tr. 1239-41.)
Lillard appeared less anxious on November 7. Flachs noted Lillard to be
making progress regarding his gender identity. He asked about participating in a
support group with similarly-situated peers. Flachs noted that Lillard exhibited a
positive mood and affect, and he appeared upbeat. He was looking into taking
online college courses. Lillard continued to experience anxiety, especially with
talking on the telephone and going to the store. He was continued in his diagnoses.
(Tr. 1236-38.)
15
Error! Main Document Only.A GAF score of 61 to 70 indicates some mild symptoms (e.g.,
depressed mood and mild insomnia) or some difficulty in social, occupational, or school
functioning (e.g., occasional truancy, or theft within the household), but generally functioning
pretty well, has some meaningful interpersonal relationships.
- 18 -
Lillard returned to Dr. Spalding on January 10, 2017, and reported that he
continued to isolate himself at home but wanted to go to college. He avoided sleep
at night because of nightmares; he slept during the day. Mental status examination
showed that Lillard avoided eye contact, had a tense posture, and was anxious. Dr.
Spalding continued to diagnose Lillard with PTSD (moderate), social anxiety
disorder (severe), and panic disorder (moderate). He indicated that the overall
severity of Lillard’s mental impairments was moderate. Dr. Spalding prescribed
hydroxyzine (Vistaril)16 and instructed Lillard to continue with therapy. (Tr.
1314-17.)
Dr. Spalding completed a Mental Medical Source Statement for disability
determinations on January 19, 2017, wherein he opined that Lillard had mild
limitations in his ability to understand, remember, and carry out simple
instructions; moderate limitations in his ability to make judgments on simple workrelated decisions and to understand and remember complex instructions; and
marked limitations in his ability to carry out complex instructions and to make
judgments on complex work-related decisions. Dr. Spalding further opined that
Lillard had marked to extreme limitations in his ability to interact appropriately
with the public, with supervisors, and with coworkers; and marked to extreme
limitations in his ability to respond appropriately to usual work situations and to
16
Hydroxyzine is an antihistamine used for its sedative effects to relieve anxiety and tension.
Medline Plus, hydroxyzine, https://medlineplus.gov/druginfo/meds/a682866.html (last revised
Feb. 15, 2017).
- 19 -
changes in a routine work setting. He further opined that Lillard’s impairments
would cause him to miss work more than four days a month and be off task at least
25 percent of a workday. As support for his opinions, Dr. Spalding pointed to
Lillard’s severe anxiety and panic, distrust of others, and his struggle to leave his
home. He concluded that Lillard could not work in any capacity. (Tr. 1304-06.)
Lillard visited Dr. Spalding again on February 9 and reported that Vistaril
helped with his sleep but that he continued to have nightmares every night. He
also reported that he still could not leave the house without being accompanied by
family. Dr. Spalding noted that Lillard’s ADHD symptoms had increased,
including lack of focus, inattention, and hyperactivity. He also noted that Lillard’s
activity during the appointment was “peculiar.” Lillard continued to express an
unwillingness to take psychotropic medication. Dr. Spalding diagnosed Lillard
with PTSD (moderate), panic disorder (moderate), ADHD (moderate), and social
anxiety disorder (severe). He strongly supported Lillard’s efforts to obtain
disability and expressed hope that improvement of Lillard’s anxiety would restore
his ability to work or attend school in the future. (Tr. 1307-10.)
Medical Expert Testimony
On June 10, 2016, Dr. Ashok Khushalani responded as a medical expert to
written interrogatories posed to him by the ALJ. Dr. Khushalani opined that, as a
child, Lillard suffered from major depressive disorder, ADHD, and PTSD, which
caused difficulties paying attention, focusing, and getting along with people, and
- 20 -
further caused low frustration tolerance and impulsivity. He opined that Lillard
had done reasonably well with treatment and educational adjustments. He opined
that Lillard had less-than-marked limitations in the domains of Acquiring and
Using Information, Attending and Completing Tasks, Interacting and Relating with
Others, and Health and Physical Well Being; and no limitations in the domains of
Moving About and Manipulating Objects, and Caring for Yourself. As his only
support for these opinions, Dr. Khushalani referred to a teacher evaluation dated
February 2010 and stated that Lillard had “responded well to meds.” (Tr. 112228.) Dr. Khushalani further opined that, as an adult, Lillard had no more than
moderate limitations in his ability to engage in work-related activities, concluding
that Lillard could perform work involving simple, repetitive tasks with occasional
public contact. (Tr. 1130-37.)17
At the hearing before the ALJ on February 7, 2017, Dr. Khushalani testified
that his review of additional records that post-dated his interrogatory answers did
not change his June 2016 opinions.
Legal Standards
A.
Child Disability
A claimant under the age of eighteen is considered disabled and eligible for
SSI under the Social Security Act if he “has a medically determinable physical or
mental impairment, which results in marked and severe functional limitations, and
17
Notably, Lillard was not yet an adult when Dr. Khushalani gave this opinion.
- 21 -
which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. §
1382c(a)(3)(C)(i).
The Commissioner is required to undergo a three-step sequential evaluation
process when determining whether a child is entitled to SSI benefits. First, the
Commissioner must determine whether the child is engaged in substantial gainful
activity. If not, the Commissioner must then determine whether the child’s
impairment, or combination of impairments, is severe. Finally, if the child’s
impairment(s) is severe, the Commissioner must determine whether it meets,
medically equals, or functionally equals the severity of an impairment listed in
Appendix 1 of Subpart P of Part 404 of the Regulations. 20 C.F.R. § 416.924(a);
Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004). If the
impairment(s) meets or medically equals a Listing, the child is disabled. Garrett,
366 F.3d at 647. If a child’s impairment does not meet or medically equal a listed
impairment, the Commissioner will assess all functional limitations caused by the
child’s impairment to determine whether the impairment functionally equals the
Listings. 20 C.F.R. § 416.926a. If this analysis shows the child not to have an
impairment which is functionally equal in severity to a listed impairment, the ALJ
must find the child not disabled. Wigfall v. Berryhill, 244 F. Supp. 3d 952, 956
(E.D. Mo. 2017).
To functionally equal a listed impairment, the child’s condition must result
- 22 -
in an “extreme” limitation in one domain of functioning or “marked” limitations in
two domains. 20 C.F.R. § 416.926a(a). The domains are “broad areas of
functioning intended to capture all of what a child can or cannot do.” 20 C.F.R. §
416.926a(b)(1). The six domains used by the Commissioner in making this
determination are: 1) Acquiring and Using Information; 2) Attending and
Completing Tasks; 3) Interacting and Relating with Others; 4) Moving About and
Manipulating Objects; 5) Caring for Yourself; and 6) Health and Physical WellBeing. Id.
A child-claimant has a “marked” limitation in a domain when his
impairment(s) interferes seriously with [his] ability to independently
initiate, sustain, or complete activities. [His] day-to-day functioning
may be seriously limited when [his] impairment(s) limits only one
activity or when the interactive and cumulative effects of [his]
impairment(s) limit several activities. “Marked” limitation also
means a limitation that is “more than moderate” but “less than
extreme.”
20 C.F.R. § 416.926a(e)(2)(i). A child has an “extreme” limitation when the
impairment “interferes very seriously with [the child’s] ability to independently
initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(3). In
determining whether a child-claimant’s functioning may be marked or extreme, the
Commissioner must review all the evidence of record and “compare [the child’s]
functioning to the typical functioning of children [the child’s] age who do not have
impairments.” 20 C.F.R. § 416.926a(f)(1); see also 20 C.F.R. § 416.926a(b) (in
determining child-claimant’s functioning, Commissioner looks “at how
- 23 -
appropriately, effectively and independently [the child] perform[s] [his] activities
compared to the performance of other children [the child’s] age who do not have
impairments.”); 20 C.F.R. § 416.924a(b)(5). For children who have spent time in
structured or supportive settings, such as special classrooms or residential
facilities, the Commissioner is to consider whether and to what extent such
structured setting affects the child’s functional limitations and how the child would
function outside of such setting. 20 C.F.R. § 416.924a(b)(5)(iv).
B.
Adult Disability
An adult claimant is eligible for SSI under the Social Security Act if he
proves that he is disabled, that is, if he shows that he is unable “to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than twelve months.” 42
U.S.C. § 1382c(a)(3)(A). See also Pearsall v. Massanari, 274 F.3d 1211, 1217
(8th Cir. 2001); Baker v. Secretary of Health & Human Servs., 955 F.2d 552, 555
(8th Cir. 1992). An individual will be declared disabled “only if his physical or
mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy.” 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner engages in a five-step evaluation process to determine
- 24 -
whether an adult claimant is disabled. See 20 C.F.R. § 416.920; Bowen v. Yuckert,
482 U.S. 137, 140-42 (1987). The first three steps involve a determination as to
whether the claimant is currently engaged in substantial gainful activity; whether
he has a severe impairment; and whether his severe impairment(s) meets or
medically equals the severity of a listed impairment. At Step 4 of the process, the
ALJ must assess the claimant’s RFC – that is, the most the claimant is able to do
despite his physical and mental limitations, Martise v. Astrue, 641 F.3d 909, 923
(8th Cir. 2011) – and determine whether the claimant is able to perform his past
relevant work. Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (RFC
assessment occurs at fourth step of process). If the claimant is unable to perform
his past work, the Commissioner continues to Step 5 and determines whether the
claimant can perform other work as it exists in significant numbers in the national
economy. If so, the claimant is found not to be disabled, and disability benefits are
denied.
The claimant bears the burden through Step 4 of the analysis. If he meets
this burden and shows that he is unable to perform his past relevant work, the
burden shifts to the Commissioner at Step 5 to produce evidence demonstrating
that the claimant has the RFC to perform other jobs in the national economy that
exist in significant numbers and are consistent with his impairments and vocational
factors such as age, education, and work experience. Phillips v. Astrue, 671 F.3d
699, 702 (8th Cir. 2012). If the claimant has nonexertional limitations, including
- 25 -
those caused by a severe mental impairment, the Commissioner may satisfy her
burden at Step 5 through the testimony of a vocational expert. King v. Astrue, 564
F.3d 978, 980 (8th Cir. 2009).
C.
Standard of Review
For both child and adult disability, the Commissioner’s findings are
conclusive upon this Court if they are supported by substantial evidence. 42
U.S.C. § 405(g); Young v. Shalala, 52 F.3d 200 (8th Cir. 1995) (citing Woolf v.
Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)). Substantial evidence is less than a
preponderance but enough that a reasonable person would find it adequate to
support the conclusion. Briggs v. Callahan, 139 F.3d 606, 608 (8th Cir. 1998). In
evaluating the substantiality of the evidence, I must consider evidence which
supports the Commissioner’s decision as well as any evidence which fairly detracts
from the decision. McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010).
Where substantial evidence supports the Commissioner’s decision, I must
affirm, even if a different conclusion may be drawn from the evidence.
McNamara, 590 F.3d at 610. However, where the record instead “overwhelmingly
supports” a finding of disability, reversal and remand for an immediate award of
benefits is the appropriate remedy. Pate-Fires v. Astrue, 564 F.3d 935, 947 (8th
Cir. 2009); see also Parsons v. Heckler, 739 F.2d 1334, 1341 (8th Cir. 1984)
(“Where further hearings would merely delay receipt of benefits, an order granting
benefits is appropriate.”).
- 26 -
The ALJ’s Decision
In her written decision, the ALJ determined that Lillard had not engaged in
substantial gainful activity since November 17, 2010. She further found that
Lillard’s impairments of headaches, ADHD, major depressive disorder, learning
disability, and PTSD were severe but that they did not meet or medically equal the
severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr.
672.)
With respect to Lillard’s child disability claim, the ALJ found that Lillard’s
severe impairments did not functionally equal the severity of the Listings.
Specifically, the ALJ found that while Lillard had marked limitations in the
domain of Interacting and Relating with Others, he had less-than-marked
limitations in the domains of Acquiring and Using Information, Attending and
Completing Tasks, Caring for Yourself, and Health and Physical Well-Being; and
no limitations in the domain of Moving About and Manipulating Objects. Because
Lillard did not have marked limitations in at least two domains or extreme
limitations in one domain, the ALJ concluded that Lillard was not disabled before
his eighteenth birthday. (Tr. 680-85.)
As to adult disability, the ALJ found that, since attaining age eighteen,
Lillard had not acquired any new impairments and that his existing impairments,
albeit severe, did not meet or medically equal a listed impairment in 20 C.F.R. Part
404, Subpart P, Appendix 1. (Tr. 685.) The ALJ found that Lillard had the RFC to
- 27 -
perform a full range of work at all exertional levels but with the following
nonexertional limitations:
the claimant can perform work that does not require climbing on
ladders, ropes, or scaffolds. He should avoid exposure to work
hazards such as unprotected heights and being around dangerous
moving machinery. He cannot drive as a primary job function. He
should not be exposed to more than moderate, office-level noise. The
claimant is able to understand, remember, and carry out simple
instructions with repetitive tasks consistent with unskilled work in a
job where there are no strict production quotas and he would not be
subject to the demands of fast-paced production work, i.e., work by
the shift not by the hour. He can tolerate occasional interaction with
coworkers and supervisors, but in small numbers and for short periods
of time, no tandem tasks and work is done relatively independently,
and minimal superficial interaction with the general public.
(Tr. 686.) The ALJ determined that Lillard had no past relevant work.
Considering Lillard’s RFC, age, and education, the ALJ found vocational expert
testimony to support a conclusion that Lillard could perform work as it exists in
significant numbers in the national economy, and specifically, as a laundry worker,
garment sorter, and cloth or garment bagger. (Tr. 689-90.) The ALJ thus found
that Lillard had not been under a disability since his eighteenth birthday through
the date of the decision. (Tr. 690.)
Discussion
It is difficult to know where to begin in this case. Lillard raises specific
challenges to the ALJ’s decision, and all of his challenges have merit. But there
are many other issues with the decision that cause me great concern. While Lillard
is entitled to relief on the basis of his specific claims, the overall egregiousness of
- 28 -
the ALJ’s errors is so substantial that additional discussion is warranted – not only
to underscore the lack of substantial evidence supporting the ALJ’s decision, but to
also highlight the overwhelming evidence showing that Lillard meets the criteria
for disability under the Social Security Act.
I will begin with Lillard’s specific claims.
A.
Opinion Evidence of Non-Examining, State-Agency Psychologist Joan
Singer
On February 4, 2011, Joan Singer, Ph.D., a psychological consultant with
disability determinations, completed a Childhood Disability Evaluation Form in
conjunction with the Social Security Administration’s initial consideration and
denial of Black’s December 2010 application for benefits o/b/o Lillard. In this
disability evaluation, Dr. Singer opined that Lillard’s ADHD, depressive disorder,
learning disability, and PTSD caused marked limitations in the domain of
Interacting and Relating with Others; less-than-marked limitations in the domains
of Acquiring and Using Information, Attending and Completing Tasks, and Caring
for Yourself; and no limitations in the domains of Moving About and Manipulating
Objects, and Health and Physical Well-Being. As support for her opinions, Dr.
Singer relied on a February 2010 teacher evaluation and cited evidence that
Lillard’s behavior improved shortly after starting Abilify. (Tr. 378-82.)
In her August 2013, decision denying child benefits to Lillard, the ALJ
relied on the teacher evaluation, Dr. Singer’s disability evaluation, and a single
- 29 -
GAF score issued by Dr. Yager in June 2013. (Tr. 13-27.) Judge Noce reversed
this decision, emphasizing in his memorandum opinion that the 2010 teacher
evaluation did not constitute substantial evidence of Lillard’s functioning in the
various domains and that, instead, substantial evidence on the record as a whole
showed Lillard to be more limited than described. Judge Noce determined that
because Dr. Singer’s disability evaluation was based almost exclusively on this
teacher evaluation, the disability evaluation itself was not substantial evidence
upon which the ALJ could rely in finding Lillard not disabled. (Tr. 692-712.)
Judge Noce also found that the ALJ failed to account for the substantial evidence
of record showing that any improvement in Lillard’s symptoms through
medication was short-lived and, further, failed to acknowledge that the adverse
side effects of Lillard’s medications were not outweighed by the medications’
benefits. (Id.) Accordingly, Dr. Singer’s February 2011 finding that medication
improved Lillard’s functioning likewise could not constitute substantial evidence
upon which the ALJ could rely.
Nevertheless, on remand, the ALJ again accorded great weight to and relied
on the February 2010 teacher evaluation and Dr. Singer’s February 2011 disability
evaluation to support her findings regarding Lillard’s level of functioning in the
various domains. (Tr. 678, 679.)18 Justifying the “great weight” accorded to Dr.
18
In varying degrees, the ALJ accorded less weight to all other opinion and evaluation evidence
of record.
- 30 -
Singer’s evaluation, the ALJ stated that Dr. Singer was an expert in social security
disability; that Dr. Singer “had access to a significant number of the claimant’s
medical records when formulating her opinion”; and that her opinion was generally
consistent with the other evidence of record, including treatment notes, Lillard’s
response to treatment, and teacher questionnaires. (Tr. 678.) This is simply not
true.
At the time of her August 2017 decision, the ALJ had nearly 1000 pages of
relevant medical and educational records dated from October 2008 through June
2016. Over half of those records document Lillard’s treatment and level of
functioning post-February 2011, that is, after Dr. Singer completed her evaluation.
Those post-February 2011 records demonstrate, inter alia, that Lillard obtained
only limited and intermittent benefit from his medication; that the medication
caused unacceptable and life-threatening side effects, including suicidal ideation
that resulted in psychiatric hospitalizations; and that the level of school
intervention and accommodation substantially increased because of Lillard’s
behavioral, emotional, and cognitive limitations. The ALJ was simply wrong to
find that Dr. Singer’s opinions, including that Lillard improved with medication,
were consistent with this subsequently-obtained evidence.
Also, most notably, Dr. Singer did not have the benefit of the neurologic
evidence – which was first obtained in 2014 – showing that Lillard suffered from a
brain injury that accounted for, at least in part, Lillard’s several-year history of
- 31 -
dizziness and headaches, with such dizziness exacerbated by psychotropic
medication. Indeed, given the evidence of brain injury, Lillard’s neurologist
opined in 2014 and 2015 that determining the extent to which Lillard’s mental
health issues, psychotropic medications, and neurologic issues interacted with each
other over the years would be nearly impossible. Curiously, the ALJ not only fails
to account for Dr. Singer’s inability to review this evidence, but herself ignores
entirely this significant medical evidence, including the fact that Lillard underwent
CT scans and MRIs that resulted in the brain-injury diagnosis. Indeed, contrary to
this substantial medical evidence, the ALJ writes that “no medical reason was
found for the claimant’s fainting and dizziness.” (Tr. 676.)
The ALJ’s wholesale failure to acknowledge evidence of Lillard’s brain
injury and the neurologist’s opinions regarding its interaction with Lillard’s mental
impairments and psychotropic medications demonstrates that the ALJ did not
review the record as a whole when rendering her decision. “[T]he ALJ is not free
to ignore medical evidence but rather must consider the whole record.” Reeder v.
Apfel, 214 F.3d 984, 988 (8th Cir. 2000). See also Strongson v. Barnhart, 361 F.3d
1066, 1071 (8th Cir. 2004) (improper for ALJ to ignore evidence in the record that
provides uncontroverted evidence of an impairment). By ignoring this relevant
medical evidence of Lillard’s diagnosed brain injury and its effect on Lillard’s
functioning – both alone and in combination with Lillard’s mental impairments and
medications – the ALJ failed to consider not only a medically-determinable
- 32 -
impairment, but the combined effect of all of Lillard’s impairments (whether
severe or non-severe) on his functioning. Arnick v. Sullivan, 921 F.2d 174 (8th
Cir. 1990). Where, as here, the evidence conclusively shows that a claimant’s
impairments and treatment therefor contribute to the adverse effects of each other,
an ALJ errs when she fails to consider the combined effect of the impairments. Id.
All of this underscores the ALJ’s error in giving great weight to and relying
on Dr. Singer’s disability evaluation to deny Lillard benefits. It is well established
that opinions of non-examining sources are generally given less weight than those
of examining sources, Willcockson v. Astrue, 540 F.3d 878, 880 (8th Cir. 2008);
and that when weighing the opinion of a non-examining source, the ALJ must
evaluate the degree to which the source considered all of the pertinent evidence
and the degree to which the source provides supporting explanations for her
opinion. 20 C.F.R. § 416.927(c)(1), (c)(3).
Here, the ALJ accorded great weight Dr. Singer’s opinion – an opinion from
a non-examining source that Judge Noce had already determined could not
constitute substantial evidence because it was based on a teacher evaluation that
itself was not supported by substantial evidence. Further, Dr. Singer did not have
access to substantial medical evidence showing that Lillard’s medication provided
only limited relief and caused significant adverse effects that exacerbated his
mental symptoms. She did not have access to school records showing that Lillard
remained in full-day special education classes throughout high school, with
- 33 -
observed “high” needs for structure and safety. (Tr. 233.) Nor did she have the
evaluation of Lillard’s high school special education teacher detailing the extent to
which Lillard’s mental impairments limited his contact with people, caused him to
shut down and withdraw, caused difficulty with new tasks and new concepts, and
required him to have behavioral support and remain in a self-contained classroom
throughout high school. Finally, she did not have access to the substantial medical
evidence of Lillard’s diagnosed brain injury and its incalculable effects on Lillard’s
mental symptoms. For the ALJ to accord great weight to and “concur” in Dr.
Singer’s unsupported and uninformed opinions was error. See Lauer v. Apfel, 245
F.3d 700, 705 (8th Cir. 2001) (opinion of non-examining source not substantial
evidence where source did not have benefit of claimant’s medical records and did
not provide specific medical findings to support opinion). See also McCoy v.
Astrue, 648 F.3d 605, 616 (8th Cir. 2011) (opinion of non-examining medical
consultant afforded less weight when consultant did not have access to relevant
medical records, including records made after date of assessment); Mayo ex rel.
D.L. v. Astrue, 4:11–CV201 LMB, 2012 WL 996580 (E.D. Mo. Mar. 22, 2012)
(remanding, in part, because the only medical evidence supporting the ALJ’s
finding that the claimant had a less-than-marked limitation was over a year old and
submitted by consultative psychologists who did not have the benefit of the
majority of the records before them).
- 34 -
B.
Failure to Consider Structured Environment
1.
Considerations for Child Disability
A structured or supportive setting may minimize signs and symptoms of a
child’s impairment(s) and help to improve his functioning while in it; but his signs,
symptoms, and functional limitations may worsen outside this type of setting.
Therefore, an ALJ must consider the child’s need for a structured setting and the
degree of limitation in functioning he has or would have outside the structured
setting. Even if the child is able to function adequately in the structured or
supportive setting, the ALJ must consider how he functions in other settings and
whether he would continue to function at an adequate level without the structured
or supportive setting. 20 C.F.R. § 416.924a(b)(5)(iv)(C). A structured or
supportive setting may include special classrooms, accommodations in regular
classrooms, or adjustments made at home to accommodate the impairment(s). 20
C.F.R. § 416.924a(b)(5)(iv)(B).
Here, the ALJ acknowledged that Lillard was in special education classes at
school and received the benefit of individualized instruction and small-group
settings. Noting that Lillard received good grades in his special-ed classes and
graduated early, the ALJ found his complained-of mental symptoms to be
inconsistent with his overall ability to perform well in school. (Tr. 675-76.) The
ALJ failed to consider, however, whether Lillard’s ability to perform well in
school was because of the highly structured setting within which Lillard learned.
- 35 -
Other than acknowledging that Lillard’s grades appeared to fall in regular-ed
classes, the ALJ did not consider how Lillard would function outside of the
structured setting. This is contrary to the mandate of § 416.924a(b)(5)(iv)(C). See
also 20 C.F.R. § 416.924a(b)(7)(iv) (“[W]e will consider that good performance in
a special education setting does not mean that you are functioning at the same level
as other children your age who do not have impairments.”). Accordingly, it cannot
be said that the ALJ’s analysis of Lillard’s limitations in the various domains of
functioning is supported by substantial evidence on the record as a whole.
2.
Considerations for Adult Disability
An ALJ must likewise consider structured settings when evaluating adult
disability. The Regulations governing mental impairments require an ALJ to
consider whether a claimant’s structured life may mask the effects of a chronic
mental impairment regarding his ability to work. See Listing § 12.00(C)(6)(b),
(D), and (F)(3)(e). The failure to consider evidence of record in this regard
demonstrates a failure to properly analyze the effects of a structured setting as
required by the Regulations. See id. § 12.00(D)(3)(b).19
19
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(D)(3)(b) provides:
You may receive various kinds of help and support from others that enable you to do
many things that, because of your mental disorder, you might not be able to do
independently. Your daily functioning may depend on the special contexts in which
you function. For example, you may spend your time among only familiar people or
surroundings, in a simple and steady routine or an unchanging environment, or in a
highly structured setting. However, this does not necessarily show how you would
- 36 -
Simply put, the nature of the medical condition and the nature of the
life activities, including such considerations as independence, should
be considered against the backdrop of whether such activities actually
speak to claimant’s ability to hold a job. Participation in activities
with family or activities at home and “at your own pace” may not
reflect an ability to perform at work.
Nowling v. Colvin, 813 F.3d 1110, 1121-22 (8th Cir. 2016).
Here, the ALJ wholly failed to consider the structure within which Lillard
functions in his adult life. Substantial evidence on the record shows that, as an
adult, Lillard is unable to go out into the community without being accompanied
by a family member or his caseworker. He meets with his caseworker every week,
and she takes him to his appointments. Lillard lives in an upstairs room in his
grandparents’ home. He helps his grandparents with some chores, but only in the
home. He sleeps during the day because recurring nightmares make him afraid to
sleep at night. While the ALJ noted that Lillard’s ability to play video games,
write, read, and draw shows that he can focus and concentrate, she failed to
recognize that Lillard engages in all of these non-interactive activities only at
home. Further, Lillard cannot manage finances because he has none. He
substantially depends on others for meals and nutrition, and he relies on family to
solve basic daily living issues. When individuals with mental illness have their
lives structured to minimize stress and reduce their signs and symptoms, they “may
be much more impaired for work than their signs and symptoms would indicate.”
function in a work setting on a sustained basis, throughout a normal workday and
workweek.
- 37 -
Andler v. Chater, 100 F.3d 1389, 1393 (8th Cir. 1996) (internal quotation marks
and citation omitted).
The record shows, and the ALJ noted, that Lillard was making progress in
late 2016 with regular psychotherapy. However, recognition must be given to the
instability of mental impairments and their waxing and waning nature after
manifestation. Rowland v. Astrue, 673 F. Supp. 2d 902, 920-21 (D.S.D. 2009)
(citing Jones v. Chater, 65 F.3d 102, 103 (8th Cir.1995)). “Indeed, one
characteristic of mental illness is the presence of occasional symptom-free
periods.” Andler, 100 F.3d at 1393 (internal quotation marks and citation omitted).
“Although the mere existence of symptom-free periods may negate a finding of
disability when a physical ailment is alleged, symptom-free intervals do not
necessarily compel such a finding when a mental disorder is the basis of a claim.”
Id.
The ALJ did not consider the waxing and waning nature of Lillard’s mental
illness but instead focused only on the limited period of improvement in late 2016.
Indeed, although she summarized Dr. Spalding’s February 2017 treatment note, the
ALJ did not acknowledge Lillard’s worsening symptoms and “peculiar” behavior
that Dr. Spalding observed at that time. Regardless, even for the limited period
during which Lillard showed improvement, the ALJ failed to consider the extent to
which Lillard’s symptoms may have been controlled or attenuated by the support
- 38 -
he received and/or the structure of his daily life.20 This failure runs afoul of the
Regulations. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(D); Freeman v. Colvin,
No. 4:15-CV-00968-NKL, 2016 WL 4620706, at *5 (W.D. Mo. Sept. 6, 2016);
Lonidier v. Colvin, No. 4:13CV1075 TCM, 2014 WL 2864771, at *19 (E.D. Mo.
June 24, 2014).
Accordingly, because the ALJ failed to consider the extent to which
structured settings and supportive environments affected Lillard’s ability to
function both as a child and an adult, her determination that Lillard’s level of
functioning did not render him disabled is not supported by substantial evidence.
C.
Evidence Adduced from Medical Expert
In denying Lillard child disability benefits, the ALJ concurred with medical
expert Dr. Khushalani’s opinion that Lillard had less than marked limitations in the
domains of Acquiring and Using Information, and Attending and Completing
Tasks. (Tr. 680-81.) In denying adult benefits, the ALJ accorded “mostly great
weight” to Dr. Khushalani’s opinion that Lillard was moderately limited in his
ability to understand, remember, or apply information; interact with others;
concentrate, persist, or maintain pace; and adapt or manage himself. The ALJ
further accorded “mostly great weight” to Dr. Khushalani’s opinion that Lillard
could engage in simple work with limited public contact. (Tr. 687-88.) The ALJ
20
Notably, even though Lillard was making progress in late 2016 with regular psychotherapy,
the structure in Lillard’s life did not diminish.
- 39 -
determined to accord such weight to Dr. Khushalani’s opinions because he “had
access to a significant number of the claimant’s medical records when formulating
his opinion and his opinion is generally consistent with the medical course of the
claimant’s impairments as reflected in the record as a whole.” (Id.) For the
following reasons, the ALJ erred in according any weight to Dr. Khushalani’s
opinions.
As discussed above regarding Dr. Singer’s opinion, the opinion of a nonexamining medical source is generally given less weight than an opinion from an
examining source. “[B]ecause nonexamining sources have no examining or
treating relationship with [the claimant], the weight we will give their medical
opinions will depend on the degree to which they provide supporting explanations
for their medical opinions.” 20 C.F.R. § 416.927(c)(3); see also Papesh v. Colvin,
786 F.3d 1126, 1133 (8th Cir. 2015). “[O]pinions 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. Barnhart,
328 F.3d 418, 427 (8th Cir. 2003).
In his June 2016 response to interrogatories, Dr. Khushalani cited the 2010
teacher evaluation as his only support for his opinions regarding Lillard’s level of
functioning in the various domains. (See Tr. 1126-27.) As discussed above,
however, this teacher evaluation is not substantial evidence of Lillard’s
functioning, especially given the significant relevant evidence that post-dated this
- 40 -
evaluation. Dr. Khushalani’s February 2017 hearing testimony did nothing to
clarify the support for his opinions, and in fact demonstrated just how unsupported
his opinions were.
First, Dr. Khushalani initially testified that there was sufficient evidence in
the record from which he could form an opinion. (Tr. 1460.) He later complained
of the fragmented record, however, and testified that he could not determine from
the record whether there was a continuum in the level to which Lillard was
affected by his impairments. (Tr. 1472.)21 He also admitted to not reviewing the
full record and that he therefore could not testify to whether Lillard would have
benefited from medication other than what was prescribed. (Tr. 1479.)
Further, Dr. Khushalani focused his testimony only on Lillard’s functioning
in the classroom that his teachers considered not to be marked. He did not
consider either the opined marked limitations or the effect of Lillard’s structured
classroom environment on his level of functioning. Nor did he opine as to how
Lillard would perform outside this setting. (Tr. 1462-63.) Dr. Khushalani also
testified that certain of Lillard’s listing-level behaviors – i.e., eating inedible items,
disturbance in sleeping and eating patterns, ignoring safety rules, failing to
complete or turn in assignments – may simply be passing phases in development
rather than signs of a disabling impairment. (Tr. 1464.) He similarly testified that
21
Dr. Khushalani incongruously recommended that Lillard undergo a consultative examination –
that is, a one-time examination – in order to show a continuum in Lillard’s functioning. (Tr.
1472.)
- 41 -
symptoms of social anxiety are simply milestones in a child’s development. (Tr.
1469.)
Dr. Khushalani also based his opinions on his perception that Lillard stopped
taking medication in June 2012 for no known reason. (Tr. 1465-66.)22 Although
the ALJ corrected him and averred that medication was stopped because of
dizziness and suicidal ideations, Dr. Khushalani nevertheless remained critical,
stating that other medications should have been tried given the evidence of
Lillard’s improvement on his earlier medications.23 As shown by the record,
however, and as described earlier in this opinion, Lillard in fact was prescribed and
took medication after June 2012, namely, Lexapro, Zoloft, Effexor, and
Wellbutrin. Also, Lillard’s supposed “improvement” with medication is likewise
contrary to the record when reviewed as a whole.
As the hearing went on, it became more and more apparent that Dr.
Khushalani had not reviewed the relevant evidence of record. While he could list
the general symptoms of major depressive disorder, ADHD, and PTSD, he could
not identify how Lillard himself manifested such symptoms nor identify any record
documenting them. (Tr. 1489-92.) Nor could Dr. Khushalani testify to how
Lillard’s impairments affected his functioning, or whether and to what extent he
22
Dr. Khushalani later indicated that the ALJ’s interpretation of the medical records caused him
to be confused regarding Lillard’s medication regimen. (Tr. 1480-81.)
23
As noted earlier, Dr. Khushalani testified that he could not give an opinion as to what other
medications should have been tried because he did not review the full record.
- 42 -
engaged in any coping skills to manage symptomatic episodes. He admitted to not
having reviewed progress notes from Clarity Healthcare dated August 6, 2015, to
November 7, 2016, and to mis-citing evidence in his interrogatory responses. (Tr.
1486, 1492-94.) He criticized the findings made in Dr. Spalding’s Mental Medical
Source Statement because they were not based on any medical records (Tr. 147375), but, as pointed out during the hearing, Dr. Spalding’s opinion was based on
the records that Dr. Khushalani admitted to not reviewing. (See Tr. 1477.)24 I find
it disingenuous for Dr. Khushalani to criticize a treating physician’s opinion as not
being based on medical records when his own opinion lacks such a basis.
As with her reliance on Dr. Singer’s unsupported and uninformed opinion,
the ALJ likewise erred in her reliance on Dr. Khushalani’s similarly unsupported
and uninformed opinions. Because Dr. Khushalani’s opinions do not constitute
substantial evidence, the ALJ erred in relying on them to find that Lillard was not
disabled.
D.
Overwhelming Evidence of Disability
1.
Child Disability
There is no dispute that during the relevant period, Lillard suffered marked
limitations in the domain of Interacting and Relating with Others. The
24
Upon Dr. Khushalani’s admission during the hearing that he did not review certain records and
could not cite relevant record evidence, the ALJ summarized the records for him and, in some
instances, read them to him. (See, e.g., Tr. 1466, 1469-77, 1480-81, 1496.)
- 43 -
overwhelming evidence also shows, at a minimum, that Lillard suffered marked
limitations in the domain of Caring for Yourself. Accordingly, because Lillard
suffered marked limitations in at least two domains of functioning, his impairments
functionally equaled the Listings under 20 C.F.R. § 416.926a(a). Lillard is
therefore entitled to child disability benefits.
In the domain of Caring for Yourself, the Commissioner is to consider how
well the child maintains a healthy emotional and physical state, including how well
he gets his physical and emotional wants and needs met in appropriate ways; how
he copes with stress and changes in his environment; and whether he takes care of
his own health, possessions, and living area. 20 C.F.R. § 416.926a(k). Limited
functioning can be shown in this domain by continual placement of non-nutritive
or inedible objects in the mouth; by engaging in self-injurious behavior, such as
suicidal thoughts or actions, or self-inflicted injury; by ignoring safety rules; and
by experiencing disturbance in eating or sleeping patterns. 20 C.F.R. §
416.926a(k)(3); Garrett, 366 F.3d at 652.
With respect to measuring the extent to which a child is limited in this
domain, the Regulations explain that adolescents age twelve to eighteen should be
increasingly independent in all of their day-to-day activities, with increasing
independence in making and following their own decisions. 20 C.F.R. §
416.926a(k)(2)(v). The Commissioner looks to the child’s ability to cope with
stress and respond to daily demands in his environment, including his ability to
- 44 -
help himself and cooperate with others in taking care of his personal needs, health,
and safety. With respect to the child’s physical and emotional needs, he must
employ effective coping strategies to identify and regulate his feelings and take
responsibility for getting his needs met in an appropriate and satisfactory manner.
20 C.F.R. § 416.926a(k)(1).
The record here shows that during his middle school years, Lillard engaged
in injurious and unhealthy behavior, including cutting, having suicidal ideations,
eating inedible items, and taking aggressive and assaultive actions. His coping
mechanisms involved crying and retreating to his room at home, or withdrawing
into himself while at school. His cutting behavior and suicidal ideations continued
into his high school years. He had obvious problems expressing anger
appropriately. He was self-contained and did not seek help in taking care of his
needs. His special services teacher reported that he had several obvious to very
serious problems handling frustration, asserting emotional needs, and using good
judgment regarding personal safety and dangerous circumstances. He continued in
his crying and withdrawing strategies to cope with stress. He was reluctant to take
medications because of their adverse effects, and he resisted psychotherapy
because of his past behaviors. Several providers reported that Lillard did not fully
understand the nature and effect of his psychological impairments.
In Social Security Ruling 09-7P, Title XVI: Determining Childhood
Disability—the Functional Equivalence Domain of “Caring for Yourself,” 2009
- 45 -
WL 396029 (S.S.A. Feb. 17, 2009), the Social Security Administration recognized
that “children whose mental or physical impairments affect the ability to regulate
their emotional well-being may respond in inappropriate ways,” such as:
• A child with an anxiety disorder may use denial or escape rather than
problem-solving skills to deal with a stressful situation.
...
• A teenager with a depressive disorder may have adequate hygiene, but
seek emotional comfort by engaging in self-injurious behaviors (for
example, binge eating, substance abuse, or suicidal gestures).
• A child with a traumatic brain injury who has poor impulse control
may have problems managing anger.
Id. at *3. Because of his mental and physical impairments, Lillard repeatedly
engaged in these and several other limiting behaviors during his adolescence, even
when contained in a highly structured and supportive environment. Medications
taken to alleviate these behaviors offered only limited and intermittent relief while
exacerbating the effects of his brain injury, and ultimately caused significant and
potentially life-threatening side effects. See Wigfall, 244 F. Supp. 3d at 968 (ALJ
substantially erred when he refused to consider debilitating side effects from
medication). Lillard experienced serious limitations in his activities and day-today functioning because of the interactive effects of his impairments and
medications. This overwhelming evidence shows that Lillard had marked
limitations in the domain of Caring for Yourself. See 20 C.F.R. §
416.926a(e)(2)(i) (definition of “marked”).
Accordingly, because Lillard had marked limitations in two domains of
- 46 -
functioning – Interacting and Relating with Others, and Caring for Yourself – his
impairments functionally equaled the Listings, and he is entitled to child disability
benefits from the alleged onset date, that is, November 17, 2010.
2.
Adult Disability
In determining Lillard’s RFC as an adult, the ALJ accorded great weight to
Dr. Khushalani’s June 2016 responses to medical interrogatories as well as his
February 2017 hearing testimony. For the reasons set out above, the ALJ erred by
according any weight to Dr. Khushalani’s opinions.
The ALJ accorded limited weight to Dr. Spalding’s January 2017 Mental
Medical Source Statement, finding that the opined marked-to-extreme limitations
were inconsistent with treatment records that showed near-normal mental status
examinations and with Lillard’s own statements that his condition had improved
with therapy. (Tr. 688.) As noted earlier, however, the ALJ failed to consider the
waxing and waning nature of Lillard’s mental illness, focused only on a limited
period of improvement, and ignored evidence of worsening symptoms. See
Andler, 100 F.3d at 1393. She also failed to consider the extent to which Lillard’s
symptoms may have been controlled or attenuated by his structured and supportive
environment. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(D). For reasons
discussed throughout this memorandum, the record does not provide a basis for
rejecting the opinion of Dr. Spalding, Lillard’s treating psychiatrist. Vossen v.
Astrue, 612 F.3d 1011, 1017 (8th Cir. 2010) (opinion of treating physician
- 47 -
accorded special deference under regulations and is “normally entitled to great
weight.”).
I have carefully reviewed all the evidence of record. Lillard suffers from
mental impairments for which he does not – and reasonably feels he cannot – take
psychotropic medications to control symptoms, given the adverse effects of
previous medications, including increased suicidal ideation, a sense that things are
not “real,” and exacerbation of dizziness associated with his brain injury.
Psychotherapy provides some relief, albeit within the structured and supportive
setting of Lillard’s life, i.e., regular supervision by a caseworker, being
accompanied in the community by family or his caseworker, and reliance on
family and/or his caseworker for assistance in daily living. Nightmares prevent
regular sleep. The longitudinal picture shows Lillard to experience limited periods
of improvement with eventual relapse. There is simply no evidence in the record
that Lillard can work on a sustained basis.
Accordingly, because the combined effect of Lillard’s severe mental and
physical impairments prevents him from engaging in any meaningful and gainful
employment, he is entitled to disability benefits as an adult. See Pate-Fires, 564
F.3d at 947.
Conclusion
There is no reason to further prolong this case. Lillard applied for benefits at
age twelve. In three months, he will be twenty-two years of age. In the interim,
- 48 -
his claim has gone through the administrative process twice, with the
Commissioner committing several egregious, reversible errors on both occasions.
I will not remand the matter for the Commissioner to make a third attempt at
getting it right.
For the reasons set out in this memorandum, the clear weight of the evidence
fully supports a determination that Lillard was disabled as a child and is disabled
as an adult within the meaning of the Social Security Act. Because the record
overwhelmingly supports a finding of disability, reversal and remand for an
immediate award of benefits is appropriate. Pate-Fires, 564 F.3d at 947 (citing
Taylor v. Chater, 118 F.3d 1274, 1279 (8th Cir. 1997); Parsons v. Heckler, 739
F.2d 1334, 1341 (8th Cir. 1984)).
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
REVERSED and this case is REMANDED to the Commissioner for calculation
and award of benefits with a disability onset date of November 17, 2010.
An appropriate Judgment is entered herewith.
____________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 25th day of March, 2019.
- 49 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?