Little v. Social Security Administration

Filing 19

MEMORANDUM OPINION: IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the Commissioner of Social Security is REVERSED AND REMANDED for further proceedings consistent with this Memorandum Opinion, pursuant to the fourth sentence of 42 U.S.C. § 405(g). Signed by Magistrate Judge Shirley P. Mensah on 3/11/2013. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DARRNELL LITTLE,
Plaintiff.
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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No. 4:11-CV-1895-SPM

MEMORANDUM OPINION
This is an action brought pursuant to 42 U.S.C. § 405(g) for judicial review of the final
decision of Defendant Michael J. Astrue, Commissioner of the Social Security Administration,
denying Plaintiff Darrnell Little’s application for Supplemental Security Income (SSI) under
Title XVI of the Social Security Act (the “Act”). The parties have consented to the jurisdiction
of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 18).
For the reasons stated below, the court reverses the decision of the Commissioner and remands
for further proceedings consistent with this Memorandum Opinion.
FACTUAL BACKGROUND1
Plaintiff is a 28-year-old man alleging disability due to paranoid schizophrenia and
depression. Plaintiff was first diagnosed with schizophrenia in late 2007, at the age of 23.
Although Plaintiff was first diagnosed at 23, the record reflects that he had a history of paranoia
dating back to age 16. At that time, Plaintiff brought a knife to school to defend himself because
he thought other kids were after him. In June 2004, when he was 19, Plaintiff sought treatment
1

The following is not intended to be an exhaustive recitation of all of the evidence contained in
the administrative record. Rather, it is a summary of the evidence relevant to the issues raised in
the appeal.
1

with the Metropolitan St. Louis Psychiatric Center (“MPC”) for anxiety and depression. The
records from that visit suggest that Plaintiff’s symptoms at the time were triggered by situational
stressors, including among other things his inability to financially care for his two-year-old
daughter.
Plaintiff’s Initial Diagnoses and Treatment (2007-2008)
Three years after his initial visit to MPC, on November 21, 2007, Plaintiff’s mother took
him back to the MPC. According to the screening/admission notes, his mother indicated that he
had been “bathing excessively and wearing a mask over his mouth”; had been crying and
laughing out loud for no reason; was very paranoid; believed he could read people’s minds; and
had called the police because he believed he was being monitored. It was noted that his
pathology was steadily progressing. (Tr. 346-348).
Plaintiff stated he did not know why his mother had brought him in but admitted to being
obsessed with having germs on him and to having crying spells. He acknowledged his belief that
people are listening in on what he is saying. He denied any psychosis but stated that it was hard
for him to concentrate because “there are too many people around.” (Tr. 348). The MPC
determined Plaintiff would benefit from admission and transferred him to Barnes-Jewish
Hospital because the MPC hospital was on diversion at the time.
Treatment notes from Barnes-Jewish Hospital largely corroborate the initial intake notes
from MPC:
[Plaintiff] ha[d] been talking with himself and [Mom] found him recently home in
the bathtub in the dark. [Plaintiff] report[ed] that he had read a story on the
internet stating that sitting in the bathtub in the dark provides a different
experience. [Mom] [thought] that [Plaintiff] ha[d] been carrying a knife for the
last several weeks… [Plaintiff] has no friends. He ha[d] recently lost three jobs
because of his paranoia. He state[d] that he can read people’s minds but he
doesn’t want to because it causes him to be emotionally hurt. He often stares,

2

uses little speech. He has lost interest in friends and activities, and this has
worsened over the last three months.
(Tr. 225).
Plaintiff was hospitalized from November 21-30, 2007.

Treatment notes from his

hospitalization revealed that toxicology was negative for all drugs. At the time he was admitted,
mental status examination revealed some psychomotor depression, reduction in spontaneous
speech, and somewhat disorganized speech when asked about persecutory delusions. Content of
thought was positive for persecutory delusions. Plaintiff did not report visual hallucination;
however, it was unclear to the psychiatrist whether Plaintiff has visual hallucinations when he
sees someone looking into his window. Plaintiff’s insight was noted to be poor because “he does
not understand that he has schizophrenia.”

In the “Assessment and Treatment Plan” the

attending psychiatrist found “[h]e has significant loss of function and is unable to maintain a job
or have friends, given his current symptoms.” (Tr. 226-27).
In the discharge summary, the attending psychiatrist wrote:
The patent did well during the course of admission on 15300 until
the afternoon of 11/23/07, when the patent became increasingly
agitated. He had started to pace the hallway, holding his head and
attempted elopement from the 15300 service. He had called home
and hung up on his mother multiple times, stated that no one was
home. He would not speak to his physician or other nursing staff.
Because of his increased risk of elopement and danger to self and
others he had to be transferred back to the 15500 for further
management. . . .
Throughout the course of admission, the patient had poor insight
into his disease. He felt that his medications were at times for his
stomach, or smoking, or his body pain. . . . . He was transferred
back to the 15300 after becoming more compliant with this
medications and noting increased sense of well being. He did well
during the course of the remainder of his admission on 15300
without any new events.
(Tr. 221).
3

During his hospital stay, Plaintiff’s psychiatric condition eventually improved once
hospital staff convinced him to take medication. By discharge, he told doctors he thought his
medications were “doing a good job.” Discharge diagnoses were: schizophrenia, paranoid type;
back pain; and exotropia of the left eye. At the time he was discharged, Plaintiff was referred to
the Independence Center2 and Midwest Psychiatry. (Tr. 221-22).
Plaintiff began regular treatment with Midwest Psychiatry and Dr. Dan Mamah on
December 14, 2007. Between December 2007 and July 10, 2008, Plaintiff saw either Dr.
Mamah or Nurse Practitioner Laura Romer at Midwest Psychiatry eight times. During his initial
intake, Plaintiff told Nurse Romer he thought his symptoms were related to his use of marijuana;
as such, she found his insight and judgment to be “somewhat limited” and assessed a Global
Assessment of Functioning (GAF) score of about 55.3 Nurse Romer urged Plaintiff to stay on
his medications for the next 6-18 months and to abstain from marijuana use. Plaintiff agreed to
do so even though he said he was “not sure this is all going to work.” (Tr. 238-239).
In his initial visit with Dr. Mamah, Dr. Mamah found Plaintiff to be well dressed and
groomed with regular speech and logical and sequential thought content. However, he found
Plaintiff’s affect to be flat/tearful and rated his mood as a 6/10. Plaintiff denied auditory and
visual hallucinations, but Dr. Mamah indicated Plaintiff’s insight/judgment was “poor” and
2

Independence Center is a community center that provides programs and services that assist
adults in the St. Louis metropolitan area with serious and persistent mental illnesses to live and
work in the community, independently. The Center’s services include outpatient psychiatric
care, which operates under the name Midwest Psychiatry.
3
The Global Assessment of Functioning (GAF) scale is a psychological assessment tool wherein
an examiner is to “[c]onsider psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness”; it does “not include impairment in functioning
due to physical (or environmental) limitations.” Diagnostic and Statistical Manual of Mental
Disorders (DSM-IV), 32 (4th ed. 1994). A GAF of 51-60 is defined as moderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic attacks), or moderate difficulty in social,
occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). Id.
4

assessed a GAF score of 55. He noted that Plaintiff has poor insight into his illness and that
Plaintiff indicated his intent to stop his medication because he did not need it and it was too
sedative. The doctor explained to Plaintiff the need for him to continue the medication and said
he would adjust the dosage to help with the side effects.
During their second visit, in late December, Dr. Mamah noted that Plaintiff was taking his
medications, as suggested. He felt Plaintiff was doing better, although he still had auditory
hallucinations at night. The doctor found Plaintiff’s mood was “better,” his affect “blunted,” and
his insight/judgment “fair.” He increased Plaintiff’s GAF score to 60,4 noting that Plaintiff
appeared to have improved insight and symptoms despite some psychosis and anxiety. (Tr. 234).
Plaintiff continued to improve during the next visit in January 2008; he reported that he
had no psychotic episodes and planned to take the GED. Dr. Mamah found Plaintiff to be well
dressed and groomed, with a regular rate and rhythm of speech, logical and sequential content of
thought but a blunted affect, and “okay” mood. The doctor indicated that Plaintiff “appears to be
improving”; that his “insight has improved”; and that he appeared motivated. He assessed a
GAF score of 655 and noted that he would try to simplify Plaintiff’s medication regime. (Tr.
233).
During the next visit on February 14, 2008, Plaintiff told Nurse Romer he was mad about
his medication because it made him feel “tired” “slowed down” and gave him the “jitters;” he
wanted “off” the medications. He nevertheless reported that he was attending the Independence
Center three times per week. During that visit, Nurse Romer noted that Plaintiff was well
4

See note 2, supra.
A GAF score of 61-70 indicates “[s]ome 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.” DSM-IV, at 32.
5

5

dressed and groomed and that his thought content was logical and sequential, but that Plaintiff’s
speech was slurred.

She found his affect “restricted” and lowered his GAF to 55.

She

recommended supportive therapy to improve coping with ongoing stressors, but Plaintiff’s
response to that recommendation was “fair-poor.” (Tr. 232).
Plaintiff saw Nurse Romer again on February 28, 2008. At that visit, he indicated that he
felt less drowsy and slow and that his “speech sounds better.” He denied anxiousness and
indicated he was attending the Center three times a week for GED class. He denied psychiatric
symptoms, and that the nurse noted that he “claims to be taking his meds even though he doesn’t
think he needs to.” Nurse Romer found Plaintiff to be well dressed and groomed, with regular
rate and rhythm of speech and logical and sequential thought. She found his affect restricted and
his mood okay. Regarding his insight, she noted his belief that he did not need the meds. His
GAF score remained at 55. (Tr. 231).
Plaintiff next saw Nurse Romer on April 16, 2008. She noted he had missed “multiple
appointments” but that in the interim he had started temporary employment as a janitor. She
noted Plaintiff was well dressed and groomed but was wearing multiple layers although it was 70
degrees outside. His affect was “restricted,” but his mood was stable and his insight and
judgment were “fair.” His GAF remained at 55, and she continued him on the same medications.
(Tr. 230).
Plaintiff saw Dr. Mamah on June 10, 2008. He stated that he was doing well, without
symptoms or psychosis. Dr. Mamah noted Plaintiff was well dressed and groomed, his speech
was regular, and his thought content was logical and sequential. He found Plaintiff’s affect
slightly blunted, but otherwise he was normal. Dr. Mamah noted he was “doing relatively well”
and continued him on his medications. (Tr. 229).

6

Plaintiff’s last visit at Midwest Psychiatry was with Nurse Romer on July 10, 2008. At
that visit, he indicated that he was working through Community Alternatives and studying for his
GED test. He indicated that he was making great progress in this GED class. Nurse Romer
found him to be well dressed and groomed, with regular speech and logical and sequential
thought content. She found his mood “alright” and his insight/judgment “fair.” She found his
affect restricted. She continued his GAF as 55 and indicated he needed to follow up with Dr.
Mamah. However, it does not appear he ever followed up with the doctor. (Tr. 228).
On December 27, 2007, Plaintiff started receiving services from Independence Center,
including the above-referenced GED classes. On February 13, 2009, Independence Center
placed Plaintiff on “Inactive Status” because he had stopped attending “despite several outreach
efforts.” The Center noted “he is welcome to return and his goals remain in progress.” (Tr.
266).
Plaintiff was eventually discharged from Independence Center on January 31, 2009. The
Discharge Summary indicated that at the time, Plaintiff was “self-employed during [sic]
computer repair out of his home.” The social worker who prepared the discharge summary noted
that at “[t]he end of the summer of 2008, [Plaintiff] started repairing computers from his home.
He is doing well with this enterprise.” The reason given for discharge was that “[Plaintiff]
decided that he did not need community support service as he had met his goals. At the time of
his discharge, he had not been taking his medications for about four months and did not notice a
difference in the way he felt. Additionally, his father did not notice any change in [Plaintiff’s]
behavior. [Plaintiff] related that he was doing fine with his self-employment and believed he
could get his GED on his own.” (Tr. 263).

7

Plaintiff’s Treatment in 2010
About a year after being discharged from Independence Center, and more than a year
after his last treatment with Midwest Psychiatry, on January 19, 2010, Plaintiff drove himself to
the emergency room at Barnes Jewish Hospital, complaining that a bug had flown into his ear.
He indicated that he may have washed it out and that he had also tried to remove it with
tweezers. His physical examination was normal, and he was discharged home with instructions
to follow up with BJC Behavioral Health South or BJC Hospital South. One month later, on
February 16, 2010, Plaintiff drove himself to the emergency room at Barnes Jewish Hospital,
reporting that he had schizophrenia and had not been taking his medications, but he left before
being seen by a doctor (Tr. 270, 272, 276).
As detailed below, Plaintiff filed an application for Supplemental Security Income (SSI)
on March 11, 2010. After applying for benefits, Plaintiff continued to seek and receive treatment
for his psychiatric symptoms. He saw Dr. Sanjeev Kamat at St. Louis Psychiatry Doctors Group
three times between March 15, 2010 and April 30, 2010. At his first visit with Dr. Kamat,
Plaintiff reported paranoia, he felt he “might know what other people are thinking about,” he
obsessed about being contaminated with dirt, and he was compulsive about washing. Dr. Kamat
observed that Plaintiff’s affect was restricted, that Plaintiff had flight of ideas and looseness of
association and that Plaintiff was positive for paranoia, obsessions, and delusions. Dr. Kamat
diagnosed chronic undifferentiated schizophrenia, major depressive disorder (MDD) and
obsessive-compulsive disorder (OCD). (Tr. 283, 285-286). Plaintiff showed improvement over
time after resuming his medication.
Plaintiff also received treatment at BJC Healthcare on June 4, July 13, and September 14
of 2010. The initial intake report at BJC reflects that “[Plaintiff] is still adjusting to the idea that

8

he has a mental illness (schizophrenia) and whether or not he wants to take medications.”
Plaintiff’s symptoms met the criteria for diagnosis of schizophrenia, paranoid type. The report
also found Plaintiff has “difficulty avoiding or resolving self-destructive impulses” which
“sometimes reduces his safety.” “He continually dismisses others warnings and demonstrates
poor judgment about risk.” He has difficulty expressing his needs. His speech is disorganized
and difficult to follow, often jumping from one topic or idea to another. (Tr. 358-359). The
treatment notes from these visits to BJC in 2010 show that Plaintiff’s symptoms were
exacerbated following a period of non-compliance but improved once Plaintiff resumed the
medications.6
Medical Opinion Evidence
After Plaintiff filed for benefits, State agency psychologist Ricardo Moreno, PsyD,
completed a Psychiatric Review Technique Form (“PRTF”) dated April 23, 2010. In the PRTF,
Dr. Moreno found Plaintiff had the medically determinable impairments of paranoid
schizophrenia, MDD (major depression disorder), and OCD. Based on his review of Plaintiff’s
medical records, Dr. Moreno found that, as a result of Plaintiff’s mental disorders, Plaintiff had
moderate restriction of activities of daily living; moderate difficulties in maintaining social
functioning; moderate difficulties in maintaining concentration, persistence or pace; and no
repeated episodes of decompensation of extended duration. Dr. Moreno noted that the “[t]otality
of the medical evidence shows that with meds he is able to focus on task, study and take care of
6

The court also reviewed and considered treatment notes and a Mental RFC
Questionnaire dated July 26, 2011, from Afaf El-Mashhady, M.D., which Plaintiff submitted to
the Appeals Council after the ALJ rendered his opinion. (Tr. 367-377). As the Commissioner
points out, Dr. Mashhady’s records are not directly relevant to the issue raised in this appeal, but
certain aspects of Dr. Mashhady’s records could be viewed as supporting a finding that Plaintiff
is not disabled. However, consistent with findings of other clinicians, Dr. Mashhady
determination that Plaintiff “could be stabilized” appeared to be contingent on his taking
medication and participating in therapy. (Tr. 374).
9

his daughter. His third party reports that he reads almost every day. He can drive . . . goes out
alone and uses public transportation; can make simple meals and HH chores. His report of
symptoms is credible.” Dr. Moreno found Plaintiff is “capable of at least simple work such as
his past work as a janitor.” (Tr. 288-99).
Dr. Moreno also completed a Mental Residual Functional Capacity Assessment dated
April 23, 2010, wherein he opined Plaintiff suffers from a number of moderate limitations in
work-related abilities, including, among others, the ability to remember locations and work-like
procedures; understand, remember and carry out detailed instructions; maintain attention and
concentration for extended periods; perform activities within a schedule; maintain regular
attendance and be punctual within customary tolerances; sustain an ordinary routine without
special supervision; work in coordination with or proximity to others without being distracted by
them; complete a normal workday and workweek without interruptions from psychologicallybased symptoms and to perform at a consistent pace without an unreasonable number and length
of rest periods; 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. (Tr. 300-01).
At the hearing before the ALJ, Vocational Expert Brenda Young testified that an
individual with Plaintiff’s RFC, as defined by the ALJ, could perform Plaintiff’s past janitorial
work. Ms. Young also testified that an individual with the number of moderate limitations
identified by Dr. Moreno “would have difficulty maintaining employment,” particularly if those
limitations were all operating at the same time. (Tr. 55-56, 58).

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Plaintiff’s Education and Employment History
Plaintiff dropped out of school in the tenth grade. Despite studying for his GED in
2008/2009, Plaintiff was ultimately unsuccessful in obtaining it. He last worked in September
2008, for a deli. He was fired, he claims, due to excessive talking. Before that, he held a variety
of low paying jobs for brief intervals, including working as a janitor, working as an airline
baggage handler, working in data entry (related to baggage handling), and assisting a disabled
cousin with daily living activities. Plaintiff cited excessive tardiness as the primary reason he
lost past jobs, but his chronic tardiness appears to be related to psychological symptoms:
ALJ: How come you’re always so late?
PLTF: . . . I think it’s some kind of psychological thing, because
it’s been going on so long.
(Tr. 37).
ATTY: What are doing in the morning before a job that makes you
tardy?
PLTF: In think mainly – I don’t know. I do the normal things that
anyone else would do. Brush my teeth, wash my face,
brush my hair. Get my clothes on. Have breakfast. But for
some reason, I can’t seem to synchronize myself with the
time I’m supposed to be at work. It never works. I’ve
tried. I’ve been yelled at. I’ve broken down in tears
because my boss yelled at me so much about being late . . .
ATTY: Does [Mom] complain about the amount of time that take
use [sic] to shower, brush your—
PLTF: Yes, she does, I’m always late . . .
I—the only thing I can think of is I like to take my time. I
brush the front and back of my teeth. I brush my tongue. I
make sure I get every speck of dirt gone. I wash my
face. . .
ATTY: You told [MPC] or they believed that you were afraid of
having too many germs. You were, they said, obsessed
with having germs on you. Do you agree with that?
PLTF: Yes.
ATTY: Do you still have that problem?
PLTF: Yes

11

ATTY: You think that’s why it takes you so long to get ready in the
morning?
PLTF: I think so, yes.
(Tr. 41-43).
PROCEDURAL HISTORY
On March 11, 2010, Plaintiff filed an application for SSI, which was initially denied. On
May 12, 2010, Plaintiff filed a timely Request for Hearing by Administrative Law Judge (ALJ),
and on February 3, 2011, a hearing was held before the Honorable Bradley Hanan. The ALJ
issued an unfavorable decision dated March 25, 2011. On April 18, 2011, Plaintiff filed a
Request for Review of Hearing Decision/Order with Defendant agency’s Appeals Council and,
as indicated above, submitted additional evidence from PsychCare Consultants and Dr. ElMashhady. After considering the additional evidence, the Appeals Council denied Plaintiff's
Request for Review on September 16, 2011.

Accordingly, Plaintiff has exhausted all

administrative remedies, and the decision of the ALJ stands as the final decision of the
Commissioner of the Social Security Administration.
STANDARD FOR DETERMINING DISABILITY UNDER THE ACT
The Social Security Act (the “Act”) defines as disabled a person who is “unable to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than twelve months.”

42 U.S.C.

§ 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). The impairment
must be “of such severity that [the claimant] is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy, regardless of whether such work

12

exists in the immediate area in which he lives, or whether a specific job vacancy exists for him,
or whether he would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B).
A five-step regulatory framework is used to determine whether an individual claimant
qualifies for disability benefits. 20 C.F.R.§ 416.920(a); see also McCoy v. Astrue, 648 F.3d 605,
611 (8th Cir. 2011) (discussing the five-step process). At Step One, the ALJ determines whether
the claimant is currently engaging in “substantial gainful activity”; if so, then he is not disabled.
20 C.F.R. § 416.920(a)(4)(i); McCoy, 648 F.3d at 611. At Step Two, the ALJ determines
whether the claimant has a severe impairment, which is “any impairment or combination of
impairments which significantly limits [the claimant’s] physical or mental ability to do basic
work activities”; if the claimant does not have a severe impairment, he is not disabled. 20 C.F.R.
§§ 416.920(a)(4)(ii), 416.920(c); McCoy, 648 F.3d at 611. At Step Three, the ALJ evaluates
whether the claimant’s impairment meets or equals one of the impairments listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (the “listings”). 20 C.F.R. § 416.920(a)(4)(iii). If the claimant
has such an impairment, the Commissioner will find the claimant disabled; if not, the ALJ
proceeds with the rest of the five-step process. 20 C.F.R. § 416.920(d); McCoy, 648 F.3d at 611.
Prior to Step Four, the ALJ must assess the claimant’s “residual functional capacity”
(“RFC”), which is “the most a claimant can do despite [his] limitations.” Moore v. Astrue, 572
F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)); see also 20 C.F.R.
§ 416.920(e). At Step Four, the ALJ determines whether the claimant can return to his past
relevant work, by comparing the claimant’s RFC with the physical and mental demands of the
claimant’s past relevant work. 20 C.F.R. §§ 416.920(a)(4)(iv), 416.920(f); McCoy, 648 F.3d at
611. If the claimant can perform his past relevant work, he is not disabled; if the claimant
cannot, the analysis proceeds to the next step. Id. At Step Five, the ALJ considers the claimant’s

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RFC, age, education, and work experience to determine whether the claimant can make an
adjustment to other work in the national economy; if the claimant cannot make an adjustment to
other work, the claimant will be found disabled. 20 C.F.R. § 416.920(a)(4)(v); McCoy, 648 F.3d
at 611.
Through Step Four, the burden remains with the claimant to prove that he is disabled.
Moore, 572 F.3d at 523. At Step Five, the burden shifts to the Commissioner to establish that the
claimant maintains the RFC to perform a significant number of jobs within the national
economy. Id.; Brock v. Astrue, 674 F.3d 1062, 1064 (8th Cir. 2012).
THE ALJ’S DECISION
Applying the foregoing five-step analysis, the ALJ in this case determined at Step One
that Plaintiff has not performed substantial gainful activity since the application date of
March 11, 2010. At Step Two, the ALJ found Plaintiff’s severe impairment was schizophrenia.
At Step Three, the ALJ found Plaintiff does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1. Prior to Step Four, the ALJ found Plaintiff has the residual functional
capacity (RFC) to perform a full range of work at all exertional levels, “but with the following
non-exertional limitations: he can perform only simple, routine and repetitive tasks in a low
stress job defined as having only occasional decision-making requirements and changes in work
setting occurring. He is to have no interaction with the public, and only casual and infrequent
contact with co-workers.” (Tr. 16-17). At Step Four, the ALJ found Plaintiff has no past
relevant work because “the earnings were not at the substantial gainful activity level.” (Tr. 19).
At Step Five, the ALJ found there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform.

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Plaintiff argues the ALJ’s decision is not supported by substantial evidence, first, because
the ALJ failed to properly consider whether Plaintiff’s “failure” to comply with prescribed
treatment was justifiable as required under SSR 82-59. Plaintiff next contends the hearing
decision failed to consider Plaintiff’s other medically determinable impairments, namely major
depressive disorder (MDD) and obsessive-compulsive disorder (OCD), which were diagnosed by
Dr. Kamat. Finally, Plaintiff argues that in determining Plaintiff’s RFC, the ALJ failed to
properly consider the opinion evidence that was before him; namely, the opinions of Dr. Moreno,
the state agency psychologist.
DISCUSSION
A. STANDARD FOR JUDICIAL REVIEW
The court’s role in reviewing the Commissioner’s decision is to determine whether the
decision “‘complies with the relevant legal requirements and is supported by substantial evidence
in the record as a whole.’” Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting
Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008)).

“Substantial evidence is ‘less than

preponderance, but enough that a reasonable mind might accept it as adequate to support a
conclusion.’” Renstrom v. Astrue, 680 F.3d 1057, 1063 (8th Cir. 2012) (quoting Moore v.
Astrue, 572 F.3d 520, 522 (8th Cir. 2009)).

In determining whether substantial evidence

supports the Commissioner’s decision, the court considers both evidence that supports that
decision and evidence that detracts from that decision. Id. However, the court “‘do[es] not
reweigh the evidence presented to the ALJ, and [it] defer[s] to the ALJ’s determinations
regarding the credibility of testimony, as long as those determinations are supported by good
reasons and substantial evidence.’” Id. (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th
Cir. 2006)).

15

“If, after reviewing the record, the court finds it is possible to draw two inconsistent
positions from the evidence and one of those positions represents the ALJ’s findings, the court
must affirm the ALJ’s decision.’” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting
Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). The court should disturb the administrative
decision only if it falls outside the available “zone of choice” of conclusions that a reasonable
fact finder could have reached. Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006).
B. IN DETERMINING PLAINTIFF’S RFC, THE ALJ FAILED TO PROPERLY CONSIDER
TREATMENT COMPLIANCE AS REQUIRED BY SOCIAL SECURITY RULING (SSR) 8259.
Prior to Step Four of the disability analysis, the ALJ is required to determine Plaintiff’s
residual functional capacity (RFC). The RFC is defined as what the Plaintiff can do, despite his
limitations, and it includes an assessment of physical abilities and mental impairments. Moore v.
Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)); Tucker v.
Barnhart, 363 F.3d 781, 783 (8th Cir. 2004) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th
Cir. 2000)). As part of the RFC determination, the ALJ must evaluate Plaintiff’s credibility as
required under Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984). The ALJ is not required to
discuss each of the Polaski factors in relation to Plaintiff, and he is entitled to discount Plaintiff’s
complaints if they are inconsistent with the evidence as a whole. See Ford v. Astrue, 518 F.3d
979, 982 (8th Cir. 2008). The court “will defer to the ALJ’s credibility finding if the ALJ
‘explicitly discredits a claimant’s testimony and gives a good reason for doing so.’” Buckner v.
Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quoting Wildman v. Astrue, 596 F.3d 959, 968 (8th
Cir. 2010)).
The ALJ in this case determined that Plaintiff had the RFC to perform a full range of
work at all exertional levels, but was limited to only “simple, routine and repetitive tasks” in a

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“low stress job” defined as having only “occasional decision-making requirements”’ “occasional
changes in work setting”; “no interaction with the public; and only casual and infrequent contact
with co-workers.” (Tr. 16-17). In assessing the severity of Plaintiff’s symptoms, the ALJ
generally found that Plaintiff’s “medically determinable impairment could reasonably be
expected to produce some of the alleged symptoms, but . . . the [Plaintiff’s] statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
credible.” (Tr. 18). In further support of his RFC determination, the ALJ stated:
Although reluctant to take medication, [Plaintiff] admitted that his symptoms
diminished with use. His medicines were adjusted and changed periodically. He
frequently stopped taking medicine at his own volition. In June 2010, he wanted
his medications changed and reduced as much as possible. He again stopped
taking his medicine in September. The claimant’s medical records show that he
did not keep medical appointments. He stopped taking his medication, usually
because he felt good and did not feel the need to take it any longer. It can be
assumed that the treating physicians would not have prescribed medications if
there were a physical or emotional impairment that would have precluded the
claimant from following the advice given.
...
There were a number of inconsistencies in the record, which do not enhance the
claimant’s credibility. . . . The record includes no psychiatric treatment or
counseling for more than a year [approximately July 2008 to February 2010]. The
lack of such evidence is not consistent with the claimant’s allegations of disabling
symptoms and impairments. The lack of medical records documenting treatment
during such period seriously undermines his credibility regarding ongoing mental
impairments imposing severe symptoms and limitations of function. It is
significant that the claimant has not sought or received treatment for alleged
symptoms.
(Tr. 18-19) (emphasis added).
Plaintiff contends the ALJ erroneously failed to consider Social Security Ruling (SSR)
82-59, which requires the ALJ to determine whether Plaintiff had “good reason” for his failure to
follow a prescribed course of treatment. See Pl.’s Br. at 7. SSR 82-59 interprets the regulations
pertaining to a failure to follow prescribed treatment. Such policy interpretations are intended to
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be binding on the Social Security Administration and must be given deference by the courts.
Newton v. Chater, 92 F.3d 688, 693 (8th Cir. 1996). For SSR 82-59 to apply, the claimant must
first be found disabled without the prescribed treatment. Holley v. Massanari, 253 F.3d 1088,
1092 (8th Cir. 2001).
Notwithstanding the Commissioner’s arguments to the contrary, I find that, as the record
currently stands, the bulk of the evidence in this case supports a finding that Plaintiff is disabled
without medication. For example, the record shows that Plaintiff’s symptoms of paranoia date
back to the age of sixteen, when he was still in high school. By the ALJ’s own estimation,
Plaintiff has never been able to maintain employment at the level of substantial gainful activity.
Although the ALJ stated that Plaintiff’s inability to remain employed resulted from chronic
tardiness, and not any psychological impairment, that statement is not supported by substantial
evidence.

Plaintiff’s unrefuted explanation for his chronic tardiness demonstrates that his

chronic tardiness is tied to his psychological symptoms. In addition, when Plaintiff was first
diagnosed with schizophrenia in 2007, the attending psychiatrist at Barnes-Jewish Hospital found
that Plaintiff “has significant loss of function and is unable to maintain a job or have friends”
because of his current symptoms. (Tr. 227). As the Commissioner points out, there is certainly
evidence suggesting Plaintiff may have been able to function for some time without his
medication. However, the evidence uniformly shows a return and/or exacerbation of symptoms
when Plaintiff discontinued the prescribed course of treatment.
As written, the ALJ’s opinion suggests that the ALJ similarly concluded that Plaintiff
would be disabled absent medication. The ALJ wrote:
The record shows that, while he is compliant with his medications, the claimant
is functional to the degree indicated in the residual functional capacity . . . The
episodes where he needed treatment were during periods when he was not

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taking his medication, and, at times, using marijuana although he testified he had
ceased using marijuana in 2006. He reportedly did well on medication.
(Tr. 19) (emphasis added).
Because there is substantial evidence in the record that Plaintiff would be disabled
without medication, the ALJ erred by failing to consider and apply SSR 82-59.
In assessing Plaintiff’s credibility, the ALJ “assumed that the treating physicians would
not have prescribed medications if there were a physical or emotional impairment that would
have precluded the [Plaintiff] from following the advice given.” (Tr. 18). The ALJ cited no
authority or source for his assumption, and a review of the record reveals no such support. This
assumption implies that the ALJ concluded Plaintiff’s medical non-compliance is attributable
solely to his free will and, therefore, was not justifiable. However, as Plaintiff points out in his
brief, there are multiple instances in the record where physicians treating Plaintiff found he did
not possess the insight to know he needed treatment. See Pl.’s Br. at 8 (citing several examples
in the administrative record).

Because the ALJ predicated his assessment of Plaintiff’s

credibility primarily on his assumption that Plaintiff’s non-compliance was solely the result of
his free will, the ALJ’s credibility assessment is not supported by substantial evidence.
The Eighth Circuit has recognized that psychological and emotional difficulties may
deprive a claimant of the “rationality to decide whether to continue treatment or medication.”
Pates-Fire v. Astrue, 564 F.3d 935, 945 (8th Cir. 2009) (quotation marks omitted). Moreover,
the Eighth Circuit has recognized that “a mentally ill person’s noncompliance with psychiatric
medications can be, and usually is, the result of [the] mental impairment [itself] and, therefore,
neither willful nor without a justifiable excuse.”

Id.

(alterations and citations omitted).

Accordingly, the ALJ must determine whether Plaintiff’s noncompliance is willful or a
medically determinable symptom of his mental impairments. Id. Failure to make this critical
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distinction, despite evidence in the record supporting involuntary noncompliance, requires
remand. See id.; see also Sharp v. Bowen, 705 F. Supp. 1111, 1124 (W.D. Pa. 1989) (To
determine whether a claimant with a mental impairment reasonably refused treatment, the ALJ
should consider whether the plaintiff “justifiably refused in light of his psychological, social or
other individual circumstances,” because “[a]n individual with a severe mental impairment quite
likely lacks the capacity to be ‘reasonable.’”). Moreover, in cases involving plaintiffs with
mental impairments, “‘justifiable cause’ must be given a more lenient, subjective definition.”
Benedict v. Heckler, 593 F. Supp. 755, 761 (E.D.N.Y. 1984).
As Plaintiff correctly points out in his brief, in the absence of any substantiating evidence
that Plaintiff had the free will to comply with the prescribed course of treatment, the assumption
made by the ALJ is tantamount to “playing doctor,” a practice expressly forbidden by the Eighth
Circuit. See Pl.’s Br. at 9; Pates-Fire, 564 F.3d at 946-947. In sum, the ALJ’s failure to obtain
medical evidence regarding the effect of Plaintiff’s mental impairments on his ability to remain
compliant with his medication requires remand. On remand, the ALJ shall obtain, and consider,
evidence to determine the cause of Plaintiff's noncompliance.
Because I find that remand is necessary on the issue of Plaintiff’s non-compliance, it is
not necessary to address Plaintiff’s remaining arguments at this time.
CONCLUSION
For all of the foregoing reasons, the court finds that this matter should be reversed and
remanded to the Commissioner for further consideration consistent with this memorandum
opinion.

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Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the
Commissioner of Social Security is REVERSED AND REMANDED for further proceedings
consistent with this Memorandum Opinion, pursuant to the fourth sentence of 42 U.S.C.
§ 405(g).
/s/Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 11th day of March, 2013.

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