Mujanovic v. Astrue
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Acting Commissioner of Social Security Carolyn W. Colvin is substituted for former Commissioner Michael J. Astrue as defendant in this cause. IT IS FURTHER ORDERED that, pursuant to senten ce four of 42 U.S.C. § 405(g), the decision of the Commissioner is REVERSED and this cause is REMANDED to the Commissioner for further proceedings consistent with this opinion. Because the current record does not conclusively demonstrate that plaintiff is entitled to benefits, it would be inappropriate for the Court to award plaintiff such benefits at this time. Judgment shall be entered accordingly. Signed by Magistrate Judge Frederick R. Buckles on 2/5/2013. (NCL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,1
MEMORANDUM AND ORDER
This cause is before the Court on plaintiff’s appeal of
an adverse ruling of the Social Security Administration.
matters are pending before the undersigned United States Magistrate
Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c).
On September 23, 2009, the Social Security Administration
denied plaintiff Hajrudin Mujanovic’s application for Disability
Security Act, 42 U.S.C. §§ 401, et seq.; and application for
Supplemental Security Income filed pursuant to Title XVI of the
Act, 42 U.S.C. §§ 1381, et seq., in which plaintiff claimed he
became disabled on February 15, 2009.
(Tr. 96, 97, 98-99, 100-04,
On February 14, 2013, Carolyn W. Colvin became the Acting
Commissioner of Social Security.
Pursuant to Fed. R. Civ. P.
25(d), Carolyn W. Colvin is therefore automatically substituted for
former Commissioner Michael J. Astrue as defendant in this cause of
At plaintiff’s request, a hearing was held before an
Administrative Law Judge (ALJ) on June 3, 2010, at which plaintiff,
plaintiff’s sister and a vocational expert testified. (Tr. 50-95.)
On October 15, 2010, the ALJ denied plaintiff’s claims for benefits
finding plaintiff able to perform his past relevant work as an
office cleaner, envelope stuffer and chair assembler. (Tr. 13-24.)
On February 13, 2012, the Appeals Council denied plaintiff’s
request for review of the ALJ’s decision.
decision thus stands as the final decision of the Commissioner.
U.S.C. § 405(g).
Plaintiff now seeks review of the Commissioner’s final
decision arguing that the ALJ’s decision is not supported by
substantial evidence on the record as a whole.
plaintiff claims that the ALJ’s determination as to plaintiff’s
residual functional capacity (RFC) is not supported by substantial
evidence on the record as a whole inasmuch as the ALJ improperly
relied on the opinion of a non-medical source to find plaintiff not
disabled; failed to properly consider evidence from Dale Sieben,
LCSW, from whom plaintiff received psychotherapy; and failed to
Plaintiff also claims that because the hypothetical question posed
to the vocational expert was based upon a flawed RFC determination,
the ALJ’s reliance on the expert’s testimony to find plaintiff not
disabled was error.
Plaintiff asks the Court to reverse the
decision of the Commissioner and award benefits.
Evidence before the ALJ shows that plaintiff, a Bosnian
refugee, came to the United States when he was twenty years of age.
Plaintiff barely understands the English language.
adduced at the evidentiary hearing with the assistance of an
As of the hearing date, June 3, 2010, plaintiff had
been in the United States for over fourteen years.
completed the eighth grade in Bosnia, but left school due to the
Plaintiff testified at the hearing that, since being
in the United States, he has worked as an over-the-road truck
driver, a machine operator at a plastics factory, a baker, a chair
assembler, an envelope stuffer, and an office cleaner.
Medical records before the ALJ show that plaintiff was
admitted to the emergency room at St. Louis University Hospital on
May 30, 2009, after having experienced a seizure.
subsequently diagnosed with epilepsy/seizure disorder and treated
with medications, including Dilantin.
Plaintiff’s last reported
seizure occurred in July 2009, although plaintiff subsequently
reported having frequent headaches, dizzy spells and brief visual
treating physician, Dr. David Glick, noted plaintiff’s seizure
disorder to be stable with Dilantin. (Tr. 220-316, 319-23, 334-36,
On February 3, 2010, Dr. Glick referred plaintiff to
Behavioral Health for individual psychotherapy in response to
Citalopram was prescribed.
From March to June
2010, plaintiff met with Dale Sieben, a licensed clinical social
worker (LCSW) at Behavioral Health on four occasions, during which
time Mr. Sieben noted plaintiff to exhibit symptoms of depression
with irregular sleep patterns, increased worries, decreased energy
and concentration, and decreased appetite.
Mr. Sieben determined
initially that plaintiff also suffered from anxiety, but ultimately
determined plaintiff to suffer from post-traumatic stress disorder
On June 9, 2010, plaintiff reported to Mr. Sieben that he
experiences in Bosnia.
On this date, Mr. Sieben assigned a Global
Assessment of Functioning (GAF) score of 50.2
(Tr. 335-42, 346-48,
Plaintiff submitted additional evidence to the Appeals
Council subsequent to the ALJ’s adverse decision.
(Tr. 5-10, 25-
Although the Commissioner avers in her brief that such
occupational functioning on a hypothetical continuum of mental
Diagnostic and Statistical Manual of Mental
Disorders, Text Revision 34 (4th ed. 2000). A GAF score of 41-50
indicates serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) or any serious
impairment in social, occupational, or school functioning (e.g., no
friends, unable to keep a job).
evidence was considered by the Appeals Council (Doc. #22 at p. 2),
the Notice of Appeals Council Action fails to include any reference
to such evidence as being considered (Tr. 1-4).
evidence shows the following:
Plaintiff visited Mr. Sieben in August and October 2010
and reported having continued nightmares, including nightmares
which were “bloody.”
Plaintiff reported that he had received
medication from Dr. Glick for anxiety which had helped a little.
Plaintiff was diagnosed with major depressive disorder–recurrent
(Tr. 25, 28.)
October 18, 2010, plaintiff was referred to Kim
International Assistant Services) and was subsequently enrolled in
the Survivor Project through CANA (Care Access to New Americans)
inasmuch as he was a survivor of torture during the war in Bosnia.
(Tr. 27, 31-39.)
On April 8, 2011, plaintiff reported to Ms. Osmanagic
that he experienced nightmares three times a week, had intrusive
memories of the war, experienced
depression and anxiety, was
withdrawn, lacked motivation, and felt overwhelmed and hopeless.
Plaintiff reported that he took medication for seizures and for
Ms. Osmanagic noted plaintiff’s mood to be depressed,
apathetic and hopeless.
constricted and low.
Plaintiff’s affect was noted to be flat,
Plaintiff’s intelligence and judgment were
noted to be normal.
Upon administration of the assessment tools
plaintiff with chronic PTSD and assigned a GAF score of 52.3
Osmanagic recommended that plaintiff undergo weekly individual
On August 20, 2011, Ms. Osmanagic completed a Mental RFC
Questionnaire (Tr. 5-9) in which she reported having had weekly
counseling sessions with plaintiff since February 2011.
Osmanagic noted plaintiff’s diagnosis to be PTSD and that plaintiff
had a GAF score of 52.
Osmanagic reported that weekly
Ms. Osmanagic reported plaintiff’s medications to be
Phenytoin and Citalopram as prescribed by Dr. Glick. Ms. Osmanagic
reported that plaintiff exhibited the following signs and symptoms
of his mental impairment: pervasive loss of interest in almost all
activities; appetite disturbance; decreased energy; blunt, flat or
thinking or concentrating; recurrent and intrusive recollections of
a traumatic experience, which are a source of marked distress;
pathological dependence; change in personality; paranoid thinking;
A GAF score of 51 to 60 indicates 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 co-workers).
Diagnostic and Statistical Manual of Mental Disorders, Text
Revision 34 (4th ed. 2000).
seclusiveness; emotional withdrawal or isolation; hallucinations or
Ms. Osmanagic opined that plaintiff was seriously
limited but not precluded in his ability to understand, remember
and carry out detailed instructions but that plaintiff was unable
to deal with stress of semiskilled and skilled work.
abilities to interact appropriately with the general public and
maintain socially appropriate behavior, and had unlimited ability
to use public transportation and adhere to basic standards of
neatness and cleanliness.
With respect to plaintiff’s mental
abilities to perform unskilled work, Ms. Osmanagic expressed no
In summary, Ms. Osmanagic reported:
Some short term memory loss.
stress [and] exposure to torture [and] trauma
intensifies daily stress, especially high
stress of work place, response to stress
. . .
Client is lacking confidence in his ability to
do work, excessive worry over working with
people caused by both trauma and intrusive
memories and the possibility that he may have
a seizure. Stress then increases symptom can
cause a “fight or flight” response.
. . .
Client suffers from disturbed sleep. Without
decent sleep he is unable to cope with stress
effectively. He reports nightmares and intru-7-
sive memories that impair his functioning.
The ALJ’s Decision
In his written decision dated October 15, 2010, the ALJ
found that plaintiff met the insured status requirements of the
Social Security Act through December 31, 2013.
The ALJ found that
plaintiff had not engaged in substantial gainful activity since the
alleged onset of disability, that is, since February 15, 2009. The
ALJ found plaintiff’s impairments of epilepsy and depression to
constitute severe impairments, but that plaintiff did not have an
impairment or combination of impairments that met or medically
equaled a listed impairment in 20 C.F.R. Part 404, Subpt. P, App.
The ALJ determined plaintiff to have the RFC to perform
the full range of work at all exertional levels but with the
The claimant can never climb ropes, ladders,
or scaffolds. The claimant must avoid concentrated exposure to hazards, such as heights
and machinery. In addition, the claimant can
only occasionally balance and stoop.
carryout [sic] at least simple instructions
and non-detailed tasks, demonstrate adequate
decisions, adapt to routine simple work
changes, and perform repetitive work according
to set procedures, sequence, and pace.
In making this RFC determination, the ALJ accorded little weight to
the evidence obtained from Mr. Sieben inasmuch as he is not an
acceptable medical source. (Tr. 22.) The ALJ determined, however,
to accord substantial weight to the RFC conclusions reached by “the
physician employed by DDS” inasmuch as “there exist a number of
other reasons to reach similar conclusions[.]”
determined that plaintiff’s RFC permitted him to perform his past
relevant work as an office cleaner, envelope stuffer and chair
The ALJ therefore found plaintiff not to be under a
To be eligible for Social Security Disability Insurance
Benefits and Supplemental Security Income under the Social Security
Act, plaintiff must prove that he is disabled.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Secretary
of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992).
Social Security Act defines disability as the "inability to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months."
42 U.S.C. §§
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
experience, engage in any other kind of substantial gainful work
which exists in the national economy."
42 U.S.C. §§ 423(d)(2)(A),
Commissioner engages in a five-step evaluation process.
C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42
The Commissioner begins by deciding whether the claimant
is engaged in substantial gainful activity.
working, disability benefits are denied.
If the claimant is
Next, the Commissioner
combination of impairments, meaning that which significantly limits
her ability to do basic work activities.
If the claimant's
Commissioner then determines whether claimant's impairment(s) meets
or equals one of the impairments listed in 20 C.F.R., Subpart P,
If claimant's impairment(s) is equivalent to one of
the listed impairments, he is conclusively disabled. At the fourth
step, the Commissioner determines the claimant’s RFC and determines
whether the claimant can perform his past relevant work.
the claimant is not disabled.
If the Commissioner finds that the
- 10 -
claimant cannot do his past relevant work, the Commissioner then
proceeds to the fifth step of the evaluation process whereby she
determines if the claimant can make an adjustment to other work.
If the claimant can make such an adjustment, the claimant is found
not to be disabled.
If the Commissioner finds the claimant unable
to perform such other work, the claimant is determined to be
disabled and becomes entitled to disability benefits.
The decision of the Commissioner must be affirmed if it
is supported by substantial evidence on the record as a whole.
U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);
Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).
evidence is less than a preponderance but enough that a reasonable
person would find it adequate to support the conclusion.
v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
evidence test,” however, is “more than a mere search of the record
for evidence supporting the Commissioner’s findings.”
Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (internal quotation marks
and citation omitted).
“Substantial evidence on the record as a
whole . . . requires a more scrutinizing analysis.”
quotation marks and citations omitted).
supported by substantial evidence on the record as a whole, the
- 11 -
Court must review the entire administrative record and consider:
The credibility findings made by the ALJ.
The plaintiff's vocational factors.
The medical evidence from treating and
The plaintiff's subjective complaints
relating to exertional and non-exertional
activities and impairments.
Any corroboration by third parties of the
The testimony of vocational experts when
required which is based upon a proper
hypothetical question which sets forth
the claimant's impairment.
Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86
(8th Cir. 1992) (quoting Cruse v. Bowen, 867 F.2d 1183, 1184-85
(8th Cir. 1989)).
The Court must also consider any evidence which fairly detracts
from the Commissioner’s decision.
Coleman, 498 F.3d at 770;
Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999).
even though two inconsistent conclusions may be drawn from the
evidence, the Commissioner's findings may still be supported by
substantial evidence on the record as a whole.
Pearsall, 274 F.3d
at 1217 (citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.
“[I]f there is substantial evidence on the record as a
whole, we must affirm the administrative decision, even if the
record could also have supported an opposite decision.” Weikert v.
Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
- 12 -
marks and citation omitted); see also Jones ex rel. Morris v.
Barnhart, 315 F.3d 974, 977 (8th Cir. 2003).
For the following reasons, this cause should be remanded
to the Commissioner for proper consideration of all the evidence of
Evidence Submitted to the Appeals Council
As noted, supra, additional evidence was submitted to the
Appeals Council and is included in the record for judicial review.
However, there is no indication in the administrative record as to
whether the Appeals Council considered this evidence.
additional information it considered consisted only of plaintiff’s
representative’s three-page brief, dated November 30, 2010.
Although in her brief here, the Commissioner represents to the
Court that the Appeals Council considered this additional evidence,
considered only plaintiff’s November 2010 brief.
If the Appeals
explanation for such determination.
Where new and material evidence is submitted to the
Appeals Council subsequent to the ALJ’s decision,
- 13 -
the Appeals Council shall consider the
additional evidence only where it relates to
the period on or before the date of the
administrative law judge hearing decision.
The Appeals Council shall evaluate the entire
record including the new and material evidence
submitted if it relates to the period on or
before the date of the administrative law
judge hearing decision.
20 C.F.R. §§ 404.970(b), 416.1470(b).
The Regulations also provide:
The Appeals Council will consider all the
evidence in the administrative law judge
hearing record as well as any new and material
evidence submitted to it which relates to the
period on or before the date of the
administrative law judge hearing decision. If
you submit evidence which does not relate to
the period on or before the date of the
administrative law judge hearing decision, the
Appeals Council will return the additional
evidence to you with an explanation as to why
it did not accept the additional evidence and
will advise you of your right to file a new
20 C.F.R. §§ 404.976(b)(1), 416.1476(b)(1) (emphasis added).
“Thus the Appeals Council must consider evidence submitted with a
request for review if it is ‘(a) new, (b) material, and (c) relates
to the period on or before the date of the ALJ’s decision.’”
Bergmann v. Apfel, 207 F.3d 1065, 1069 (8th Cir. 2000) (quoting Box
v. Shalala, 52 F.3d 168, 171 (8th Cir. 1995)).
Failure to consider
such evidence constitutes a basis for remand by a reviewing court.
- 14 -
Whitney v. Astrue, 668 F.3d 1004, 1006 (8th Cir. 2012); Box, 52
F.3d at 172; see also Nelson v. Sullivan, 966 F.2d 363, 366 (8th
“Whether evidence meets this criteria is a question of
law . . . review[ed] de novo.”
Bergmann, 207 F.3d at 1069.
Given the Appeals Council’s silence in the instant case
with respect to plaintiff’s additional evidence, this Court cannot
determine whether the Appeals Council considered such evidence in
its determination to deny review of the ALJ’s decision.
circumstances, the Eighth Circuit Court of Appeals has directed
district courts to remand matters to the Appeals Council for a
determination of whether the evidence is new, material and relates
to the period on or before the ALJ’s decision and, if these
requirements are met, for consideration with all of the other
evidence in the administrative record.
See Whitney, 668 F.3d at
1006-07; Lamp v. Astrue, 531 F.3d 629 (8th Cir. 2008); Gartman v.
Apfel, 220 F.3d 918 (8th Cir. 2000).
In light of additional legal
error committed by the ALJ in the instant cause, as discussed
below, such remand is appropriate in the circumstances here.
The Commissioner has a duty to consider all of the
available evidence in a claimant’s record, including evidence from
health care providers such as licensed clinical social workers and
therapists, and non-medical sources such as counselors. See Social
Security Ruling (SSR) 06-3p, 2006 WL 2263437 (Soc. Sec. Admin. Aug.
- 15 -
Although such providers are not considered to be
insight into the severity of a claimant’s impairment and how his
ability to function is affected thereby.
Here, the ALJ
determined to accord little weight to evidence obtained from Mr.
Sieben, a licensed clinical social worker, merely because he was
not an “acceptable medical source.”
(See Tr. 22.)
06-3p considers such providers to be valuable sources of evidence
for assessing impairment severity and functioning inasmuch as they
often have close contact with the individuals and have personal
knowledge and expertise to make judgments about their impairments,
activities and level of functioning over a period of time.
such, to discount evidence from a licensed clinical social worker
or other medical or non-medical source merely because they are not
an “acceptable medical source” is contrary to the Regulations and
substantial weight to the opinion of the DDS physician was likewise
In his written decision, the ALJ cursorily referred to the
RFC “conclusions” reached by “the physician employed by the DDS”
and determined to accord such conclusions substantial weight. (Tr.
A review of the record in its entirety shows, however, that
no evidence, including opinion evidence, was obtained from a DDS
physician. Instead, the only evidence obtained from a DDS employee
- 16 -
is a Case Analysis rendered by DDS counselor Danielle Fry, dated
September 23, 2009, in which she reports:
33 yr. old clmt alleging CC as of 02/15/09 due
Evidence in file demonstrates
the clmt having a hx of seizures as a child
and being seizure free until 7/09. The clmt
is currently taking Dilantin for his seizure
do. He notes back pain, on recent exam, he
had full ROM w/o spinal tenderness. He has no
MDI for his allegation of back pain.
clmt’s functional limitations could not be
assessed as he failed to return his ADLs.
Therefore, due to insufficient evidence, an
unfavorable determination is rendered.
Weighing the opinion of a lay person under the rules appropriate
for weighing the opinion of a medical source is legal error.
v. Astrue, 509 F.3d 447, 449 (8th Cir. 2007).
cannot say that the ALJ’s reliance on Ms. Fry’s unqualified opinion
was harmless in light of the ALJ’s near-blanket rejection of other
evidence of record for the sole reason that such evidence was not
obtained from an acceptable medical source.
Accordingly, this cause should be reversed and remanded
to the Commissioner for further consideration.
Upon remand, the
the Appeals Council should determine whether the evidence submitted
by the plaintiff subsequent to the ALJ’s decision is new, material
and relates to the period on or before the ALJ’s decision.
The Commissioner appears to concede in her brief that this
Case Analysis rendered by Ms. Fry is that upon which the ALJ relied
in making his RFC determination. (See Doc. #22 at p. 8.)
- 17 -
the Appeals Council should then proceed to consider such evidence
with all of the other evidence in the administrative record.
review of such
additional evidence, the Commissioner must be
mindful of her duty to consider all of the available evidence in
plaintiff’s record including evidence from health care providers
such as licensed clinical social workers and therapists, and nonmedical sources such as counselors.
In addition, the Commissioner
is reminded that a determination as to plaintiff’s RFC must be
supported by some medical evidence in the record.
Barnhart, 390 F.3d 584, 591 (8th Cir. 2004).
The Commissioner is
“required to consider at least some supporting evidence from a
evidence that addresses plaintiff’s ability to function in the
workplace. Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001)
(internal quotation marks and citation omitted).
by non-medical lay persons are not medical evidence.
20 C.F.R. §§
Therefore, for all of the foregoing reasons,
IT IS HEREBY ORDERED that Acting Commissioner of Social
Security Carolyn W. Colvin is substituted for former Commissioner
Michael J. Astrue as defendant in this cause.
IT IS FURTHER ORDERED that, pursuant to sentence four of
42 U.S.C. § 405(g), the decision of the Commissioner is REVERSED
- 18 -
proceedings consistent with this opinion.
Because the current
record does not conclusively demonstrate that plaintiff is entitled
to benefits, it would be inappropriate for the Court to award
plaintiff such benefits at this time.
Judgment shall be entered accordingly.
UNITED STATES MAGISTRATE JUDGE
day of August, 2013.
- 19 -
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?