Whitehead v. Social Security Administration
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and the case is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. Section 405(g) for further proceedings consistent with this Memorandum and Order. Signed by District Judge Catherine D. Perry on July 8, 2013. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,1
Commissioner of Social Security,
) Case No. 4:12CV1259 CDP
MEMORANDUM AND ORDER
This is an action for judicial review of the Commissioner’s decision denying
Jeannette Whitehead’s applications for disability insurance benefits under Title II
of the Act, 42 U.S.C. §§ 401 et seq., and for supplemental security income (SSI)
benefits based on disability under Title XVI of the Social Security Act, 42 U.S.C.
§§ 1381, et seq. Sections 205(g) and 1631(c)(3) of the Act, 42 U.S.C. §§ 405(g)
and 1383(c)(3), provide for judicial review of a final decision of the
Commissioner. Whitehead claims she is disabled because of lupus, depression,
and rheumatoid arthritis. Because I find that the decision denying benefits was not
supported by substantial evidence, I will remand the decision of the
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14,
2013. As such, she should be substituted for Michael J. Astrue as the defendant in this suit. Fed.
R. Civ. P. 25(d).
Whitehead protectively filed her applications for benefits on April 19, 2007
and May 3, 2007. She claims disability beginning September 15, 2006. On
September 22, 2009, following a hearing, an ALJ issued a decision that Whitehead
was not disabled. The Appeals Council of the Social Security Administration
(SSA) denied her request for review on April 16, 2010. Whitehead appealed that
decision to this Court, and the case was assigned to the Honorable Frederick R.
Buckles, United States Magistrate Judge, sitting by consent of the parties pursuant
to 28 U.S.C. § 636(c). Jeannette Whitehead v. Michael Astrue, Case No.
4:10CV1066 FRB. On September 7, 2011, Judge Buckles reversed the decision of
the Commissioner and remanded the case for further proceedings. Whitehead v.
Astrue, 2011 WL 3943921, *22 (E.D. Mo. Sept. 7, 2011). On May 7, 2012,
following a second hearing, a different ALJ found that Whitehead was not
disabled. Whitehead did not appeal that decision to the Appeals Council.
Therefore, the decision of the ALJ stands as the final decision of the
Evidence Before the Administrative Law Judge
In his thorough 58-page opinion, Judge Buckles summarized all the
evidence before the ALJ and the Appeals Council at the time of the first decision.
Id. at *1-*15. I will not restate that evidence here; instead, I simply adopt and
incorporate Judge Buckles’ opinion and will discuss any specific evidence as
necessary to address Whitehead’s arguments. The following supplemental
evidence was submitted to the ALJ before the second decision was issued on May
On October 18, 2009, Dr. Garriga, Whitehead’s treating rheumatologist,
noted that the results of Whitehead’s urinalysis indicated that her “WBC (white
blood cell) count low again; no need to change meds.” (Tr. 810).3
On March 22, 2010, Whitehead saw Dr. Garriga complaining of stiffness
lasting all day, small red bumps on her arms, itching, difficulty swallowing,
drowsiness due to medications, swelling in feet and hands, intermittent chest pain,
shortness of breath, and abdominal pain. Dr. Garriga noted a history of constant
and worsening pain in both legs radiating from the hip, with frequent loss of
balance when walking. His review of symptoms indicated that Whitehead was
positive for rash, medication side effects, hair loss, difficulty swallowing, dry
The ALJ considered the supplemental evidence, as well as the evidence previously
received, when she rendered her decision.
Whitehead’s WBC was 2.4, with a normal reference range of 4.0-10.5. (Tr. 814).
mouth, depression, swelling, chest pain, and dyspnea. Upon examination, Dr.
Garriga noted that Whitehead appeared alert, cooperative, and was not in distress.
Whitehead’s heart rate, range of motion, and joints were normal, with no swollen
joints, tender points, or tight muscle groups. Dr. Garriga diagnosed connective
tissue disease (CTD), no insurance, and depression. He prescribed Naproxen and
a return visit in four months. (Tr. 840-41).
On April 1, 2010, Whitehead presented to the Grace Hill clinic complaining
of pain. She was seen by a nurse practitioner, who noted that Whitehead reported
no fatigue, fever, night sweats, cough, dyspnea, chest pain, or irregular heart beat
or palpitations. The nurse reported a history of anxiety, lupus, and depression.
Whitehead stated she took Prednisone, Abilify, Effexor, and other unnamed
medications. Upon examination, Whitehead was noted to be well nourished, well
developed, and hydrated, with normal respiratory and cardiovascular functions.
The nurse practitioner observed that Whitehead had mild changes in her hands due
to rheumatoid arthritis, resulting in moderate pain with motion, and commented
that Whitehead was “unable to [perform] bilateral hand squeeze due to pain.” The
nurse practitioner diagnosed “pain in joint involving multiple sites” and “anemia,
unspecified.” She ordered Vitamin D 25-Hydroxyl and complete blood count
(CBC) tests from the lab. (Tr. 888-89). Test results revealed high CBC, low
WBC, low hematocrit, and low iron. The pathologist recommended additional
studies to rule out iron deficiency. (Tr. 891-99).
On July 26, 2010, Dr. Garriga noted that Whitehead’s WBC was “very low;
likely indicates a lupus flare.” He indicated that she needed CellCept if not
allergic. (Tr. 791). Whitehead’s lab results indicated a WBC count of 1.9, with
elevated Sjogren’s antibodies and Jo-1 Ab. (Tr. 794).
Whitehead saw Dr. Garriga on August 30, 2010 complaining of stiffness,
intermittent rash, lethargy due to medications, swelling in feet and hands, frequent
need to urinate, and shortness of breath. Review of symptoms was positive for
rash, side effects from her medication, hair loss, difficulty swallowing, dry mouth,
depression, swelling, chest pain, and dyspnea. Upon examination, Dr. Garriga
noted that Whitehead was alert, cooperative, and not in distress. She had normal
joints, with no swelling, tender spots, or tight muscle groups. He diagnosed her
with systemic lupus erythematosus (SLE) and microcytic anemia. (Tr. 836).
On November 15, 2010, Whitehead told Dr. Garriga that she had a fever,
drowsiness, vertigo, nausea, vomiting, diarrhea, difficulty swallowing liquids,
swelling, a frequent urge to urinate, shortness of breath at rest, dry eyes,
depression, dry mouth, hair loss, medication side effects, chest pain, and dyspnea.
She also reported feeling swollen and that her hands “locked up.” Upon
examination, Dr. Garriga found that Whitehead was alert, cooperative, and in no
distress. Review of joints yielded normal results, with no swelling, tender spots,
or tight muscle groups. Dr. Garriga diagnosed her with SLE and noted that
Whitehead’s lack of insurance “hinders her care.” (Tr. 834-35). On the urinalysis
order submitted the same day, Dr. Garriga noted Whitehead’s primary diagnosis of
lupus with secondary diagnoses of Sjogren’s syndrome and leukopenia. (Tr. 784).
During her March 31, 2011 examination, Whitehead told Dr. Garriga that
she had constant aching and weakness in her hands, stiffness, constant pain in her
legs, and dyspnea with exertions. She also reported a problem with her memory
and stated that “she cannot remember what occurs in the books she reads.”
Review of symptoms was positive for fever, nodules on legs, medication side
effects including drowsiness, hair loss, difficulty swallowing liquids, depression,
swelling in hands and feet, intermittent chest pain, and shortness of breath with
minimal exertion. Whitehead’s heart and lungs were normal, and examination of
her joints revealed normal results with no swelling, tenderness, or tightness. Dr.
Garriga diagnosed Lupus with leukopenia and arthralgias, dyspnea, and memory
loss. He ordered blood tests. (Tr. 832-33, 854).
Blood tests ordered by the Grace Hill clinic on April 7, 2011showed out of
range CBC, WBC, hematocrit, and C-Reactive protein. (Tr. 902-05). Subsequent
tests on September 1, 2011 and December 14, 2011, showed low CBC. (Tr. 905,
Whitehead went to the Northwest Healthcare emergency room on February
15, 2012 complaining of high blood pressure, headache, and blurred vision.
Examination revealed tenderness at C3-7 and a compromised range of motion in
her neck. Her examination was otherwise normal. An x-ray was ordered, which
revealed moderate to severe disc disease C3 through C7 with “osteoarthritis in
face and uncovertebral joints” and “no significant encroachment on the right, some
encroachment on the left at C4-C5.” The impression was degenerative disease of
the cervical spine. Whitehead was told that she has moderate to severe
osteoarthritis in her neck. She was given Vicodin and discharged the same day.
At her March 19, 2012 visit to Dr. Garriga, Whitehead reported being in
constant pain. Review of symptoms was positive for rash on her neck, back, and
arms, drowsiness and “brain fog” from her medications, trouble swallowing
liquids, swelling in hands and feet, chest pressure, and shortness of breath.
Whitehead’s heart and lungs were normal. She had some tight muscle groups, but
otherwise her joints were normal. Dr. Garriga diagnosed her with lupus, stress,
and diffuse myalgias, and advised her to get some sleep. On March 21, 2012, after
reviewing Whitehead’s blood work, he noted that her anemia had improved, but
“autoantibodies still present. Same plan.” (Tr. 972-74). Her blood work revealed
low WBC and elevated Sjogren’s Anti-SS-A and Jo-1 Ab. (Tr. 974-979).
Whitehead also submitted supplemental mental health treatment records
from BJC Behavorial Health. Psychiatrist Narayana Kosuri, D.O., saw Whitehead
on June 10, 2010. The interim history note states that Whitehead “want[s] to try
some antidepressants now, so far she refused to take Meds b/c of nausea/vomiting.
She appeared mildly depressed without S.I.” He observed that Whitehead’s
general appearance and behavior were “fair” and that she was cooperative.
Whitehead reported being “mildly depressed” with a bad memory. Her
perceptions, speech, and psychomotor activity were all observed to be normal.
Whitehead was alert and oriented. Dr. Kosuri assessed Whitehead as being mildly
depressed and prescribed the antidepressant Celexa along with Hydroxyzine4 and
supportive psychotherapy. (Tr. 940-42).
On August 26, 2010, Whitehead told Dr. Kosuri that her hallucinations “are
better than before but has them mildly.” Her appearance was rated as “fair,” and
she was cooperative. Whitehead reported her mood was “good.” She had
Hydroxyzine is used to treat anxiety. Medline Plus (last revised September 1, 2010)
sustained attention and no delusions; however, Whitehead reported auditory and
visual hallucinations. Her speech was slowed and soft, but the tone was
appropriate. Whitehead’s psychomotor activity and orientation were normal, and
her intellect was average with fair insight and judgment. Dr. Kosuri assessed
Whitehead as stable and prescribed Abilify, Effexor, and Hydroxyzine. (Tr. 94345).
Dr. Kosuri did not see Whitehead again until December 30, 2010. She
reported being “out of meds for some time. Started to see bugs, people, shadows,
etc. Sleep is bad. Hears voices - vague.” Whitehead’s appearance was fair, and
she wore clean clothing and made fair eye contact. She was cooperative and
reported her mood was “ok.” She had sustained attention and no delusions. She
reported auditory and visual hallucinations. Whitehead’s speech and psychomotor
activity were normal, and she seemed oriented. Her insight and judgment were
listed as fair. Dr. Kosuri assessed Whitehead’s condition as stable. He continued
her medications and instructed her to call the clinic or seek emergency help if she
had side effects or became unstable. He continued her medications and also
prescribed Trazodone. (Tr. 945-48).
On March 8, 2011, Whitehead told Dr. Kosuri that “she is scared and jumpy
and feels something is going to happen. gets panicked and paranoia, get up in the
night. Feels loneliness . . . .” She described her mood as “ok.” Dr. Kosuri noted
Whitehead’s appearance and eye contact were fair and her demeanor was pleasant
and cooperative. She had paranoid ideations, and her speech was slowed and soft
but appropriate. Whitehead appeared alert and oriented, with normal psychomotor
activity and fair insight and judgment. Dr. Kosuri assessed Whitehead as needing
a medication adjustment, and he added Seroquel5 to her prescribed list of drugs.
He also recommended supportive therapy. (Tr. 948-51).
On May 5, 2011, Whitehead reported to Dr. Kosuri that she was “doing very
good, does not want to change her medications . . . .” Dr. Kosuri noted a full
affect with Whitehead’s examination within normal limits. Whitehead’s insight
and judgment improved to “good.” He assessed Whitehead as “stable” and
continued her medications. (Tr. 951-54).
Whitehead next saw Dr. Kosuri on December 6, 2011. The interim history
notes that Whitehead “is more depressed in this season, has more crying spells,
tiredness, less motivation, etc., since November. Sleep is very poor, only few
hours . . . .” Whitehead described her mood as depressed. She was cooperative,
with good eye contact and a fair appearance. Whitehead had sustained attention,
Seroquel is used to treat depression. Medline Plus (last revised November 15, 2012)
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was well-oriented, and not delusional. Her perceptions were normal, but her
speech was slowed and soft. Her insight and judgment were observed to be good.
Dr. Kosuri diagnosed a medication adjustment was needed, so he decreased
Whitehead’s dosage of Seroquel and increased her dosage of Hydroxyzine.
Supportive therapy was recommended. (Tr. 954-57).
On March 15, 2012, Whitehead reported “lots of family stress” to Dr.
Kosuri. She told him she was “ok but in pain.” Her examination was normal. Dr.
Kosuri assessed Whitehead as “under stress and back pain” and refilled her
prescriptions. (Tr. 957-60).
On April 10, 2012, Dr. Kosuri completed a mental residual functional
capacity questionnaire in support of Whitehead’s applications for benefits. Dr.
Kosuri indicated that he had been treating Whitehead every 2-3 months for the last
15-30 months. He diagnosed Whitehead with major depressive disorder,
recurrent, with psychotic features. He assessed her current GAF at 55, the highest
of the past year, and listed her treatment and response as “fair.” Whitehead’s
medications were said to cause drowsiness and fatigue. Dr. Kosuri’s clinical
findings included poor concentration, no motivation, helplessness and
worthlessness, loneliness, suicidal ideation, hearing voices, paranoia, and
depression. Dr. Kosuri stated Whitehead’s prognosis was “guarded.”
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Whitehead’s symptoms included loss of interest, decreased energy, hallucinations,
thoughts of suicide, feelings of guilt or worthlessness, persistent anxiety, mood
disturbance, difficulty thinking or concentrating, paranoid thinking or
inappropriate suspiciousness, memory impairment, recurrent obsessions or
compulsions, sleep disturbance, emotional withdrawal, recurrent panic attacks, a
history of multiple physical symptoms (for which there are no organic findings) of
several years duration that have caused the individual to take medicine frequently,
see a physician often, and alter life patterns, persistent irrational fear of a specific
object, activity, or situation, and involvement in activities that have a high
probability of painful consequences which are not recognized. (Tr. 983-84).
Dr. Kosuri opined that Whitehead was “seriously limited but not precluded”
in the following work-related abilities: remember work-like procedures;
understand and remember very short and simple instructions; carry out very short
and simple instructions; maintain attention for two-hour segment; maintain regular
attendance and be punctual; sustain an ordinary work routine without special
supervision; make simple work-related decisions; ask simple questions or request
assistance; accept instructions and respond appropriately to criticism; get along
with others; respond appropriately to changes in the work setting; understand and
remember detailed instructions; carry out detailed instructions; set realistic goals
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or make plans independently of others; interact appropriately with the general
public; maintain socially appropriate behavior; travel in unfamiliar place; and, be
aware of normal hazards and take appropriate precautions. Dr. Kosuri also opined
that Whitehead would be “unable to meet competitive standards” in the following
work-related abilities: work in coordination with or in proximity to others without
being distracted; complete a normal work period without interruptions from
psychologically based symptoms; perform at a consistent pace without an
unreasonable number of rest periods; deal with stress of semiskilled and skilled
work; and, deal with normal work stress. He felt Whitehead would be “limited but
satisfactory” in the area of adhering to basic standards of neatness and cleanliness.
Dr. Kosuri stated that Whitehead’s psychiatric condition exacerbated her
perception of pain in relation to her lupus and fibromyalgia. He believed she
would be absent more than 4 days per month because of her impairments, and that
her impairment has lasted more than 12 months. Dr. Kosuri said that Whitehead
was not a malingerer and that her impairments were reasonably consistent with the
described symptoms and functional limitations. (Tr. 987).
Whitehead’s supplemental hearing was held on April 16, 2012. She
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appeared in person, was represented by counsel, and testified as follows.
Whitehead lives in an apartment with her four children. She went to Sanford
Brown college for some data entry classes. Whitehead worked as a supervisor at
Quest Diagnostics. She has a driver’s license, but only drives “sometimes” due to
pain. Her medications also make her “sleepy and dysfunctional.” Whitehead
testified that she filed for disability because she has lupus. At first, she was able
to work with the disease, but the pain and swelling eventually forced her to quit.
She then became depressed. As of the hearing date, Whitehead continued to have
these problems, but she also developed headaches and osteoarthritis. Whitehead
also testified that rheumatoid arthritis causes “her hands [not to] work.” She says
the weather also affects her hands, and rain causes them to hurt worse. However,
she did not want to take her pain medication because it makes her groggy.
Whitehead testified that she has “excruciating pain” from lupus and dry mouth,
dysphagia from Sjogren’s syndrome. She also has an overactive bladder.
Whitehead also testified that she is depressed. She cries several times a day,
including during the hearing. She takes medication, but she doesn’t think it helps.
She thought she began seeing a psychiatrist in 2007, but she couldn’t remember
the name of the doctor or the location of the office.
Whitehead testified that she does not sleep at night because she is in pain,
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hears voices, and is afraid. She also gets up constantly to use the bathroom.
Whitehead does not cook meals because she forgets to turn the stove off. Her
children, mother, and sister-in-law all help her with daily activities such as
shopping, filling out paperwork, etc. because she has trouble remembering details
or understanding words. Whitehead does not do laundry because she messes it up,
and she doesn’t do dishes because she drops them. She can’t vacuum or mop
because of her hands. Sometimes she goes to the grocery store by herself, but she
gets confused and forgets where she is so she doesn’t go far by herself. Whitehead
does not watch television. She can no longer read books because she forgets what
she just read, so now she listens to gospel music. When she goes out, she usually
visits her mom or sister.
Whitehead testified that she can only sit for 30-40 minutes before needing
to move around because her legs and knees start to hurt. Walking hurts more than
standing, and she can only walk for about 15 minutes before she is in pain. Her
back also hurts. Whitehead does not carry or lift anything, and she lies down a
couple of hours each day.
Dolores Gonzalez, a vocational expert, also testified at the hearing. The
ALJ posed the following hypothetical to the vocational expert:
Q: The medical records and the claimant’s testimony suggest that she
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is functionally limited to light exertional work. In addition, she
should avoid fumes, odors, dust, gas, hazardous heights, ropes,
ladders, and scaffolding; is limited to unskilled work; should not
perform work that includes more than infrequent handling of
customer complaints. With those limitations, can the claimant
perform any of her past relevant work?
A: No, your honor.
Q: Are there any jobs that exist in significant number on a national
and state level that a hypothetical individual with the same
educational or vocational background and residual functional
capacity as the claimant has the ability to perform that exist in
significant numbers? If yes, what would those jobs be? . . .
A: Mail sorter . . . Hand presser . . . A bench assembler . . . .
Whitehead’s counsel asked the vocational expert the following questions:
Q: If we have a claimant same age, education, work background as
our claimant who . . . can sit about two hours in an eight-hour
workday and stand and walk less than two hours in an eight-hour
workday, any jobs available with those limitations?
Q: The jobs you’ve listed, the mail sorter, hand presser, bench
assembly, how many days per month could an employee miss in these
jobs and still maintain that employment?
A: . . . I would expect that if a person would miss two days out of the
month, that the person would have great difficulty maintaining
Q: If the claimant were credible, and as she testified, she would cry
throughout the day, need an unscheduled break for crying, and jobs
allow for unscheduled breaks?
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A: No, the person would need to be accommodated, and therefore not
able to work competitively.
A court’s role on review is to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. Gowell
v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001). Substantial evidence is less than a
preponderance, but is enough so that a reasonable mind would find it adequate to
support the ALJ’s conclusion. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir.
2000). As long as there is substantial evidence on the record as a whole to support
the Commissioner’s decision, a court may not reverse it because substantial
evidence exists in the record that would have supported a contrary outcome, id., or
because the court would have decided the case differently. Browning v. Sullivan,
958 F.2d 817, 822 (8th Cir. 1992). In determining whether existing evidence is
substantial, a court considers “evidence that detracts from the Commissioner’s
decision as well as evidence that supports it.” Singh v. Apfel, 222 F.3d 448, 451
(8th Cir. 2000) (quoting Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir.
1999)). Where the Commissioner’s findings represent one of two inconsistent
conclusions that may reasonably be drawn from the evidence, however, those
findings are supported by substantial evidence. Pearsall v. Massanari, 274 F.3d
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1211, 1217 (8th Cir. 2001) (internal citation omitted).
To determine whether the decision is supported by substantial evidence, the
Court is required to review the administrative record as a whole and to consider:
(1) the credibility findings made by the Administrative Law Judge;
(2) the education, background, work history, and age of the claimant;
(3) the medical evidence from treating and consulting physicians;
(4) the plaintiff’s subjective complaints relating to exertional and
(5) any corroboration by third parties of the plaintiff’s impairments;
(6) the testimony of vocational experts, when required, which is based
upon a proper hypothetical question.
Brand v. Secretary of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th
Disability is defined in social security regulations as the inability to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
months. § 42 U.S.C. 416(i)(1); § 42 U.S.C. 1382c(a)(3)(A); § 20 C.F.R.
404.1505(a); 20 C.F.R. 416.905(a). In determining whether a claimant is disabled,
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the Commissioner must evaluate the claim using a five step procedure.
First, the Commissioner must decide if the claimant is engaging in
substantial gainful activity. If the claimant is engaging in substantial gainful
activity, he is not disabled.
Next, the Commissioner determines if the claimant has a severe impairment
which significantly limits the claimant’s physical or mental ability to do basic
work activities. If the claimant’s impairment is not severe, he is not disabled.
If the claimant has a severe impairment, the Commissioner evaluates
whether the impairment meets or exceeds a listed impairment found in 20 C.F.R.
Part 404, Subpart P, Appendix 1. If the impairment satisfies a listing in Appendix
1, the Commissioner will find the claimant disabled.
If the Commissioner cannot make a decision based on the claimant’s current
work activity or on medical facts alone, and the claimant has a severe impairment,
the Commissioner reviews whether the claimant can perform his past relevant
work. If the claimant can perform his past relevant work, he is not disabled.
If the claimant cannot perform his past relevant work, the Commissioner
must evaluate whether the claimant can perform other work in the national
economy. If not, the Commissioner declares the claimant disabled. § 20 C.F.R.
404.1520; § 20 C.F.R. 416.920.
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When evaluating evidence of pain or other subjective complaints, the ALJ is
never free to ignore the subjective testimony of the plaintiff, even if it is
uncorroborated by objective medical evidence. Basinger v. Heckler, 725 F.2d
1166, 1169 (8th Cir. 1984). The ALJ may, however, disbelieve a claimant’s
subjective complaints when they are inconsistent with the record as a whole. See
e.g., Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir. 1990). In considering the
subjective complaints, the ALJ is required to consider the factors set out by
Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), which include:
claimant’s prior work record, and observations by third parties
and treating and examining physicians relating to such matters
as: (1) the claimant’s daily activities; (2) the duration,
frequency, and intensity of the pain; (3) precipitating and
aggravating factors; (4) dosage, effectiveness and side effects
of medication; and (5) functional restrictions.
Id. at 1322. When an ALJ explicitly finds that the claimant’s testimony is not
credible and gives good reasons for the findings, the court will usually defer to the
ALJ’s finding. Casey v. Astrue 503 F.3d 687, 696 (8th Cir. 2007). However, the
ALJ retains the responsibility of developing a full and fair record in the nonadversarial administrative proceeding. Hildebrand v. Barnhart, 302 F.3d 836, 838
(8th Cir. 2002).
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The ALJ’s Findings
The ALJ issued her decision that Whitehead was not disabled on May 7,
2012. She found that Whitehead had the severe impairments of lupus, Sjogren’s
syndrome, and depression. In reaching her conclusion that Whitehead does not
have an impairment or combination of impairments that either meet or medically
equal one of the listings, the ALJ reviewed the medical evidence of record
submitted in the prior hearing as well as the supplemental evidence. The ALJ
found that Whitehead retained the residual functional capacity to perform light
work, including lifting twenty pounds occasionally and ten pounds frequently,
standing and walking six hours in an eight-hour workday and sitting six hours in
an eight-hour workday; however, she must avoid the use of ropes, ladders, and
scaffolds, and the hazards of heights, exposure to fumes, odors, dust and gasses;
and is limited to unskilled work, defined as understanding, remembering, and
carrying out simple instructions, and should not perform work which includes
more than infrequent handling of customer complaints. In fashioning Whitehead’s
RFC, the ALJ determined that her impairments could be expected to produce some
of her alleged symptoms; however, she concluded that Whitehead’s statements
concerning the intensity, persistence, and limiting effects of those symptoms were
not entirely credible to the extent they were inconsistent with her RFC. After
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finding that Whitehead was unable to perform her past relevant work, the ALJ
relied on the vocational expert’s testimony and concluded that Whitehead was not
Whitehead’s primary complaint is that the ALJ did not comply with Judge
Buckles’ remand Order because she failed to perform a credibility analysis
consistent with the standards set out in Polaski. Judge Buckles decided that
remand was required, in part because “it cannot be said that the ALJ demonstrated
in his written decision that he considered all of the evidence relevant to plaintiff’s
complaints or that the evidence he considered so contradicted plaintiff’s subjective
complaints that her testimony could be discounted as not credible.” Whitehead,
2011 WL 3943921, at *21. Judge Buckles directed the ALJ on remand to
“examine the possibility that plaintiff’s mental impairment aggravated her
perception of pain.” Id. Whitehead contends that, on remand, the ALJ
improperly disregarded her mental impairment’s impact on her perception of pain
and concluded that she was, instead, motivated by financial gain.6 The ALJ found
This is the claimant’s third application for disability benefits. In fact,
The ALJ did not find that Whitehead was a malingerer.
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immediately after her first denial she went to work with little or no
decline in earnings. In fact, immediately after her first denial, the
claimant obtained her job at Quest Diagnostics where she rose to the
second-highest supervisor at the facility. Her story about her
disability and limitations was significantly different at the prior
hearing reporting she could lift five to ten pounds, not a complete
inability to lift any weight, and a maximum of fifteen minutes sitting
and five minutes walking or standing. While the District Court noted
that one could not always discredit a claimant’s testimony based on a
blanket presumption of motivation for secondary gain, these
discrepancies show the claimant tried to make herself appear as
severely limited as possible, but she could not remember what
limitations she had reported earlier in order to maintain a consistent
story. In this case the Administrative Law Judge concludes it is
appropriate to note a significant motivation for secondary gain in
contrast to the District Court Decision, because it is based on these
inconsistencies and other factors, and not just an unsupported
assertion of fact. The undersigned has considered all of the factors
required in Polaski and the testimony of the claimant and her
responses to questioning at this hearing and the record as a whole to
include her responses at the prior hearing. Finally, in addition to the
inconsistencies and other factors considered, the treatment records of
the claimant’s treating rheumatologist, Dr. Garriga contain almost no
clinical findings consistent with the crippling limitations alleged by
the claimant. Thus, not only is there a motivation for secondary gain
shown by multiple findings followed by returning to work after
rejections, but the claimant’s own doctor reported scant clinical
findings on examination of the claimant from the earliest office notes
reports of his clinical findings. It is, in fact, the combination of many
factors that limit the reliability of the claimant’s statements and
makes them appear to be motivated by secondary gain which the
undersigned considers a significant factor in evaluating credibility.
When determining the credibility of a claimant’s subjective complaints, the
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ALJ must consider all evidence relating to the complaints, including the claimant’s
prior work record and third party observations as to the claimant’s daily activities;
the duration, frequency and intensity of the symptoms; any precipitating and
aggravating factors; the dosage, effectiveness and side effects of medication; and
any functional restrictions. Halverson v. Astrue, 600 F.3d 922, 931 (8th Cir.
2010); Polaski, 739 F.2d at 1322. While an ALJ need not explicitly discuss each
Polaski factor in his decision, he nevertheless must acknowledge and consider
these factors before discounting a claimant’s subjective complaints. Wildman v.
Astrue, 596 F.3d 959, 968 (8th Cir. 2010).
“[T]he duty of the court is to ascertain whether the ALJ considered all of the
evidence relevant to the plaintiff’s complaints . . . under the Polaski standards and
whether the evidence so contradicts the plaintiff’s subjective complaints that the
ALJ could discount his or her testimony as not credible.” Masterson v. Barnhart,
363 F.3d 731, 738–39 (8th Cir. 2004). It is not enough that the record merely
contain inconsistencies. Instead, the ALJ must specifically demonstrate in his
decision that he considered all of the evidence. Id. at 738; see also Cline v.
Sullivan, 939 F.2d 560, 565 (8th Cir. 1991). Where an ALJ explicitly considers
the Polaski factors but then discredits a claimant’s complaints for good reason, the
decision should be upheld. Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir. 2001).
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The determination of a claimant’s credibility is for the Commissioner, not the
Court, to make. Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005). As Judge
Buckles previously acknowledged, “a claimant’s financial motivation may
contribute to an adverse credibility determination when other factors cast doubt
upon the claimant’s credibility.” Ramirez v. Barnhart, 292 F.3d 576, 581-82 n.4
(8th Cir. 2002).
Here, the ALJ determined that financial motivation was a significant factor
detracting from Whitehead’s credibility based upon perceived inconsistencies in
Whitehead’s testimony and medical records, alleged lack of objective medical
evidence supporting the extent of her complaints, her alleged noncompliance with
treatment, and her ability to work in the past despite her attempts to claim pain and
seek benefits. The ALJ did not, however, discuss any of the evidence suggesting
that Whitehead’s perception of pain was aggravated by her mental impairment,
contrary to Judge Buckles’ remand Order. In doing so, the ALJ substantially
erred. Remand is therefore required.
Dr. Rosso, Whitehead’s consultative psychologist, opined on June 18, 2007,
that Whitehead’s “level of cognitive functioning has declined” and that it “may be
related to her significant depression.” He further diagnosed her with “significant
depression, which she reports began after she had been diagnosed with Lupus.”
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(Tr. 356). Dr. Garriga, Whitehead’s treating physician, indicated in the residual
functional capacity questionnaire that he completed on January 18, 2008, that
Whitehead’s symptoms included pain, and that psychological factors, including
depression and anxiety, affected her physical condition. (Tr. 296). On July 14,
2009, he also indicated that Whitehead’s depression would limit her ability to
work. (Tr. 494). On October 23, 2009, clinical social worker Mary McBride, who
had met with Whitehead at least two times per week for two months before
completing her evaluation, stated that Whitehead “is not able to deal effectively
with her pain from Lupus due to heightened depression and hopelessness. Her
depression makes her feel more physical pain.” (Tr. 531). Dr. Kosuri,
Whitehead’s treating psychiatrist, also confirmed in April of 2012 that
Whitehead’s psychiatric condition exacerbated her perception of pain and her
physical symptoms. (Tr. 987).
The ALJ ignored this evidence of record, instead finding that Whitehead’s
credibility was diminished because Whitehead could produce no documents
demonstrating that she sought “mental health treatment”until her hospitalization on
March 6, 2009. According to the ALJ, Whitehead was not credible in part because
she told Dr. Rosso that “she had just begun to take psychotropic medication” even
though she had not yet been admitted to the psychiatric hospital. The ALJ then
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concludes, “Thus, the claimant never had professional mental health treatment.”
This finding is contrary to the substantial evidence of record as a whole. While
Whitehead could not produce documents verifying her claim that she began seeing
a psychiatrist in 2007 (apparently because the doctor refused to cooperate with the
request), the record is replete with evidence that Whitehead was diagnosed with,
and treated for, depression by Dr. Garriga as early as April 8, 2005, when he
prescribed her the antidepressant Nortriptyline. Whitehead’s depression was again
noted by Dr. Garriga on November 8, 2005, and subsequently on March 29, 2006,
when he prescribed her the antidepressant Lexapro. Whitehead returned to Dr.
Garriga on September 6, 2006, complaining of depression, and depression was
again noted during her visit of January 8, 2007. On April 24, 2007, Dr. Garriga
prescribed Whitehead the antidepressant Zoloft, and depression was noted during
her visit of May 30, 2007. Consultative psychologist Dr. Rosso diagnosed
Whitehead with major depressive disorder on June 27, 2007, and consultative
physician Dr. Khalifa also diagnosed her with depression (stable) on July 13, 2007.
Dr. Garriga prescribed Vivactil for Whitehead’s depression during that visit. Dr.
Garriga again noted Whitehead’s diagnosis of depression on September 21, 2007,
which he verified in his physical residual functional capacity questionnaire
completed on January 18, 2008. Three days later, Dr. Garriga diagnosed
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Whitehead with depression. Dr. Spezia prescribed Whitehead Lexapro on July 30,
2008. On October 10, 2008, Dr. Garriga noted that Whitehead was taking
Cymbalta for depression. Dr. Garriga diagnosed Whitehead with major depressive
disorder on March 6, 2009, while she was currently taking Cymbalta and
Trazodone, and urged her to see a psychiatrist.
This extensive medical history, all of which occurred before Whitehead’s
June 10, 2009 admission to the Metropolitan St. Louis Psychiatric Center,
demonstrates that Whitehead had been diagnosed with depression by two treating
physicians and two consultative examiners (one of which is a mental health
specialist), and that she had been treated for depression with antidepressants since
2005, well before her claimed onset date. The ALJ’s erroneous conclusion that
Whitehead could not have been taking psychotropic medications when she was
seen by Dr. Rosso (and therefore was less credible because she told him so) is flatly
contradicted by the evidence, which shows that Whitehead had just started taking
the psychotropic antidepressant Zoloft about two months before her examination.
Moreover, that Whitehead could not prove that she was seeing a psychiatrist during
this time period does not mean that she was not seeking — and receiving —
“mental health treatment.” Treatment by a physician for depression is mental
health treatment. See, e.g., Brubaker v. Astrue, 2011 WL 1256943, *9 (D.S.D.
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Mar. 30, 2011) (treatment for depression and anxiety by general practice doctors
constitutes mental health counseling).7
The ALJ substantially erred when she concluded that Whitehead lacked
“significant mental health problems [because] she never sought treatment until
2009” and that her “credibility [was] questionable regarding her reported history of
mental health treatment . . . .” These findings are not supported by substantial
evidence on the record as a whole. “The ALJ must not substitute his opinions for
those of the physician.” Ness v. Sullivan, 904 F.2d 432, 435 (8th Cir. 1990). The
course and manner of treatment is for the treating physician to decide, not the ALJ.
Id. Here, Whitehead had been receiving treatment for her depression since 2005,
and it is not for the ALJ to speculate about what treatment should, or should not,
The ALJ also erred when she ignored the more recent evidence of
Whitehead’s mental impairment provided by her treating psychiatrist Dr. Kosuri,
While it is certainly true that a specialist’s opinion in the field of mental health would
ordinarily be entitled to greater weight than Dr. Garriga’s opinion, see Brown v. Astrue, 611 F.3d
941, 953-54 (8th Cir. 2010), it does not follow that only a mental health specialist such as a
psychiatrist can render “mental health treatment.” Courts routinely review the diagnosis and
treatment of depression and other mental impairments by non-specialist physicians in disability
cases. See id. It is also important to note that here, the ALJ was not choosing between contrary
opinions of a mental health specialist and a non-specialist when she concluded that Whitehead
had no significant mental health problems due to the lack of mental health treatment until 2009.
Instead, Dr. Garriga’s diagnosis and treatment of Whitehead’s depression is consistent with the
opinions of mental health specialists Drs. Rosso and Kosuri.
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who opined on April 10, 2012, that Whitehead suffered from major depressive
disorder, recurrent, with psychotic features, and that her psychiatric condition
(which he described as “guarded”) exacerbated her perception of pain. Later in her
opinion the ALJ briefly mentions Dr. Kosuri’s mental residual functional capacity
questionnaire and even relies upon some of his recommendations when fashioning
the RFC, but she does not discuss this finding (which is uncontradicted by any
evidence in the record) at all. Dr. Kosuri is Whitehead’s treating mental health
professional and his opinion should ordinarily be entitled to controlling or
substantial weight, absent good reasons for discounting the opinion.
“It is the ALJ’s function to resolve conflicts among the various treating and
examining physicians.” Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002)
(internal quotation marks and citation omitted). The opinions and findings of the
plaintiff’s treating physician are entitled to “controlling weight” if that opinion is
“‘well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the]
record.’” Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000) (quoting 20
C.F.R. § 404.1527(d)(2)). However, the opinion of the treating physician should
be given great weight only if it is based on sufficient medical data. Leckenby v.
Astrue, 487 F.3d 626, 632 (8th Cir. 2007) (holding that a treating physician’s
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opinion does not automatically control or obviate need to evaluate record as whole
and upholding the ALJ’s decision to discount the treating physician’s
medical-source statement where limitations were never mentioned in numerous
treatment records or supported by any explanation); Chamberlain v. Shalala, 47
F.3d 1489, 1494 (8th Cir. 1995) (holding that opinions of treating doctors are not
conclusive in determining disability status and must be supported by medically
acceptable clinical or diagnostic data) (internal quotation marks and citation
omitted); Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006) (holding that
where a treating physician’s notes are inconsistent with his or her RFC assessment,
controlling weight is not given to the RFC assessment). “Although a treating
physician’s opinion is entitled to great weight, it does not automatically control or
obviate the need to evaluate the record as a whole.” Hogan v. Apfel, 239 F.3d 958,
961 (8th Cir. 2001).
An ALJ may “discount or even disregard the opinion of a treating physician
where other medical assessments are supported by better or more thorough medical
evidence, or where a treating physician renders inconsistent opinions that
undermine the credibility of such opinions.” Prosch, 201 F.3d at 1013 (internal
quotation marks and citations omitted); Cox v. Barnhart, 471 F.3d 902, 907 (8th
Cir. 2006) (holding that an ALJ may give a treating doctor’s opinion limited weight
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if it is inconsistent with the record). An ALJ is entitled to give less weight to the
opinion of a treating doctor where the doctor’s opinion is based largely on the
plaintiff’s subjective complaints rather than on objective medical evidence. Kirby
v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007) (citing Vandenboom v. Barnhart, 421
F.3d 745, 749 (8th Cir. 2005)).
Here, the ALJ refused to give Dr. Kosuri’s opinions considerable weight
because he assessed Whitehead with a GAF of 55 in his mental residual functional
capacity questionnaire (which indicates only moderate symptoms) and allegedly
had few clinical findings consistent with a complete inability to work. Yet Dr.
Kosuri noted that Whitehead’s then current GAF score was the highest it had been
in the past year, and his assessment of her condition was based on her treatment
over the course of 15-30 months. He indicated that the severity of Whitehead’s
mental impairments were demonstrated by her poor concentration, lack of
motivation, feelings of hopelessness and worthlessness, suicidal ideations, hearing
voices, paranoia, and depression. Dr. Kosuri believed Whitehead was seriously
limited in most areas of mental abilities and aptitudes needed to perform either
skilled or unskilled labor and simply unable to meet competitive standards in other
areas. Contrary to the ALJ’s findings, his treatment notes actually provide ample
support for these conclusions and reflect that Whitehead was hallucinating, hearing
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voices, paranoid, scared and panicky, stressed, and tearful at times during her
sessions. Although Whitehead reported feeling better in March of 2011, by May
she was more depressed, with crying spells, difficulty sleeping, and no motivation.
In December of that year, she reported being in pain and under stress, which
continued through March of 2012.
Dr. Kosuri’s prognosis and opinions with respect to the severity of
Whitehead’s limitations are consistent with the cyclical nature of Whitehead’s
depression as reflected in his treatment notes, and there is no inconsistency
between his findings in the functional capacity questionnaire and the fact that, at
the time he completed it, Whitehead’s GAF score was at its highest. “Although the
mere existence of symptom-free periods may negate a finding a disability when a
physical impairment is alleged, symptom-free intervals do not necessarily compel
such a finding when a mental disorder is the basis of a claim.” Andler v. Chater,
100 F.3d 1389, 1393 (8th Cir. 1996). “Symptom-free intervals and brief remissions
are generally of uncertain duration and marked by the impending possibility of
relapse.” Id. Here, Dr. Kosuri’s conclusions are supported by the record in this
case, which shows that Whitehead’s symptoms varied greatly during her regular
visits with Drs. Garriga and Kosuri. The ALJ erred in discounting Dr. Kosuri’s
opinions regarding the severity of Whitehead’s mental limitations on this basis.
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Moreover, Dr. Kosuri’s findings are consistent with those of Dr. Rosso and
Mary McBride. Dr. Rosso diagnosed Whitehead with major depressive disorder
and assigned her a GAF score of 40. The ALJ assigned little weight to Dr. Rosso’s
opinion because he was a consultative examiner and because “the entirety of the
evaluation was based on the claimant’s self-reported limitations . . . .” While it is
true that, “[a]s a general matter, the report of a consulting physician who examined
a claimant once does not constitute substantial evidence upon the record as a
whole,” Wagner v. Astrue, 499 F.3d 842, 849 (8th Cir. 2007) (internal quotation
marks omitted), in this case the consultative examiner’s opinion is consistent with
all the substantial medical evidence of record, including that of Whitehead’s
The ALJ also improperly discounted Dr. Rosso’s diagnosis as having been
based on Whitehead’s recitation of events because “a patient’s report of
complaints, or history, is an essential diagnostic tool.” Flanery v. Chater, 112 F.3d
346, 350 (8th Cir. 1997). More importantly, Dr. Rosso’s opinions were not based
solely on Whitehead’s self-reported limitations. Instead, he based his opinions on
his observations of Whitehead during the examination, as well as her responses to
extensive cognitive functioning tests. Dr. Rosso reported that Whitehead displayed
below average vocabulary development, intellectual functioning, verbal reasoning,
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problem solving, arithmetic reasoning, verbal information, language functioning,
short-term auditory memory, and working memory. Dr. Rosso also observed that
Whitehead had a significantly depressed affect and cried frequently throughout the
examination. These findings are all consistent with the other, substantial medical
evidence of record, and it was error for the ALJ to discount them.
The same is true of Mary McBride’s opinions. While she is not a doctor, her
opinions may properly be considered as part of the record as a whole. See Sloan v.
Astrue, 499 F.3d 883, 888 (8th Cir. 2007) (explaining that under Social Security
regulations, opinions from “other sources” such as clinical social workers cannot
be considered an “acceptable medical source” for purposes of establishing
medically determinable impairment; however, this information may be used to
establish severity of the impairment and how it affects functioning). Although the
ALJ acknowledges this in her decision, she gives no weight to McBride’s opinions
and does not discuss them at all. After seeing Whitehead twice a week for two
months, McBride concluded that Whitehead’s prognosis was poor, that she was
severely limited in her ability to work, and that her depression exacerbated her
perception of pain. These conclusions were based in part on Whitehead’s inability
to recall serial threes during her mental status examination, to remember or appear
for scheduled appointments due to depression and pain, or to respond appropriately
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to basic questions about what to do in case of fire. McBride observed that
Whitehead was unable to carry out simple instructions, had poor memory, did not
respond when people spoke to her, and did not regularly groom herself. McBride’s
observations are consistent with Whitehead’s treating and consultative physicians,
and the ALJ erred in ignoring them.
In fact, the only medical evidence contradicting the above findings was that
offered by the non-examining psychological consultant Geoffrey Sutton, who
reviewed Whitehead’s records and concluded on July 26, 2007, that Whitehead did
not have a severe mental impairment. Yet, as the ALJ acknowledged, the opinion
of a non-examining consultant does not constitute substantial evidence. See
Lacroix v. Barnhart, 465 F.3d 881, 888 (8th Cir. 2006). For this reason, the ALJ
completely disregarded Sutton’s opinions, concluding that he “did not have a
significant number of the subsequent records for review, and was in an even poorer
position than Dr. Rosso to make an accurate mental assessment.” Therefore, all the
substantial medical evidence of record indicated that Whitehead had significant
mental impairments, and that these impairments impacted her perception of pain,
her daily activities, and her ability to work. Yet the ALJ ignored the medical
evidence and substituted her own opinion for that of Whitehead’s physicians. Ness
v. Sullivan, 904 F.2d 432, 435 (8th Cir. 1990). In doing so, she clearly erred.
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This error resulted in an improper credibility assessment under Polaski.
Because the ALJ incorrectly found inconsistencies between Whitehead’s
statements to Dr. Rosso and her medical history, she improperly discounted
Whitehead’s credibility overall and found she was motivated primarily by
secondary gain. For example, citing these alleged discrepancies, the ALJ
concluded that Whitehead “tried to make herself appear as severely limited as
possible” during her testimony at the second hearing. In making this finding, the
ALJ mischaracterized Whitehead’s testimony. At the first hearing, which was held
on August 12, 2009, Whitehead stated that she could pick up “maybe five or ten
pounds.” (Tr. 28). At the second hearing on April 16, 2012, in response to a
question about how much she could carry on a regular basis without pain,
Whitehead testified that she didn’t lift or carry anything like groceries anymore
because she lacked grip strength. These are two very different questions (one is
about how much Whitehead could pick up, and the other is about how much she
could regularly lift or carry without pain), and there is no apparent inconsistency in
Whitehead’s testimony, particularly when the extended time gap between her
testimony is considered. Moreover, any perceived inconsistency may be equally
explained by a worsening in Whitehead’s condition instead of a motivation for
secondary gain, a factor the ALJ failed to consider. At worst, the record is simply
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unclear as to the amount of weight Whitehead testified she could lift at the second
hearing. The ALJ has a duty of fully and fairly developing the facts of the case,
even when the claimant is represented by counsel. Bishop v. Sullivan, 900 F.2d
1259, 1262 (8th Cir. 1990). Here, the ALJ could have questioned Whitehead about
any perceived inconsistencies in her testimony and clarified the record instead of
simply assuming that Whitehead was motivated by secondary gain. Whether
Whitehead’s responses would have been a basis for bolstering or undermining her
credibility is unknown, but at least the record would have been complete and the
ALJ’s credibility determination would have been supported by evidence in the
record. Where alleged inconsistencies upon which an ALJ relies to discredit a
claimant’s subjective complaints are not support by and indeed are contrary to the
record, the ALJ’s ultimate conclusion that the claimant’s symptoms are less severe
than she claims is undermined. Baumgarten v. Chater, 75 F.3d 366, 368-69 (8th
Cir. 1996). Here, the ALJ’s credibility determination is not supported by
substantial evidence as a whole.
It appears that the ALJ’s improper assumption may have filtered into her
assessment of other factors used to determine credibility as well. Although issues
such as compliance with medication and work history may properly be considered
in a credibility assessment, here the ALJ’s findings on these issues seem to have
- 38 -
been tainted by the ALJ’s incorrect assumption that Whitehead could not have been
truthful with Dr. Rosso about her mental health treatment. On remand, the ALJ
should develop these and any other facts as needed to make a credibility
determination based on a full and fair record.
Whitehead also contends that remand is required because the ALJ erred in
her consideration of the opinions of Dr. Rosso and Dr. Garriga. I have already
concluded that the ALJ erred in her consideration of Dr. Rosso’s opinions, as well
as Dr. Kosuri’s, so remand is required for the reasons previously stated. As for Dr.
Garriga’s opinions, the ALJ accorded them only “slight weight” because “the
treatment records of the claimant’s treating rheumatologist, Dr. Garriga contain
almost no clinical findings consistent with the crippling limitations alleged by the
claimant.” She found that “there are no clinical findings reported by Dr. Garriga in
any of his office notes since at least 2005 to support any of the restrictions in his
medical source statement. Instead he relies on symptoms reported by the patient
such as complaints of facial rash, which only is reported once in his records, and
that was after the claimant was off medications for quite some time.” She claims
that “there is no imaging study showing joint abnormalities or degeneration as a
result of the claimant’s arthritis/immunosuppressive disorders,” or any clinical
findings of inflammation or limited range of motion.
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These findings are contrary to the substantial weight of the evidence. Dr.
Garriga’s treatment notes indicate that Whitehead’s symptoms included a rash on
numerous occasions, including November 8, 2005, May 22, 2007, September 21,
2007, January 18, 2008, March 6, 2009, March 22, 2010, July 23, 2010, August 30,
2010, March 31, 2011, July 29, 2011, and March 19, 2012. Dr. Garriga’s treatment
notes also reflect additional clinical findings of dry eyes, dry mouth, dysphagia,
hair loss, muscle stiffness, fatigue, swelling, and depression. These clinical
findings were confirmed by other objective medical evidence, including: numerous
blood tests (the most recent of which was dated March 21, 2012) indicating low
WBC and strongly (+) SS-A antibodies; Whitehead’s April 1, 2010, examination at
the Grace Hill clinic which revealed mild changes in Whitehead’s hands due to
rheumatoid arthritis; and, an x-ray dated February 15, 2012, which revealed
moderate to severe osteoarthritis in Whitehead’s neck. Dr. Garriga is a specialist in
rheumotology and has been treating Whitehead since 2003. As such, he has
observed firsthand the objective signs and symptoms of Whitehead’s connective
tissue disease, her responses to treatment, and her continued subjective complaints.
The ALJ erred when she substituted her judgment for that of Dr. Garriga’s by
concluding that these numerous symptoms and tests did not constitute clinical
findings supporting his diagnosis. The ALJ’s error was compounded by her refusal
- 40 -
to consider how Whitehead’s depression exacerbated the severity of her symptoms.
Dr. Garriga twice noted this fact, as did other examiners as previously discussed.
The ALJ erred by ignoring that evidence and simply deciding that Dr. Garriga’s
opinions were entitled to only slight weight because some of his physical
examinations of Whitehead’s joints and muscles yielded normal results.
In light of the above, it cannot be said that the ALJ demonstrated in her
written decision that she considered all of the evidence relevant to Whitehead’s
complaints or that the evidence she considered so contradicted Whitehead’s
subjective complaints that her testimony could be discounted as not credible.
Masterson v. Barnhart, 363 F.3d 731, 738-39 (8th Cir. 2004).
Where, as here, an ALJ errs in her determination to discredit a claimant’s
subjective complaints and in her review of the medical evidence, the resulting RFC
assessment is called into question inasmuch as it does not include all of the
claimant’s limitations. See Holmstrom v. Massanari, 270 F.3d 715, 722 (8th Cir.
2001). RFC is defined as “what [the claimant] can still do” despite his “physical or
mental limitations.” 20 C.F.R. § 404.1545(a). “When determining whether a
claimant can engage in substantial employment, an ALJ must consider the
combination of the claimant’s mental and physical impairments.” Lauer v. Apfel,
245 F.3d 700, 703 (8th Cir. 2001). The Eighth Circuit has noted the ALJ must
- 41 -
determine a claimant’s RFC based on all of the relevant evidence, including the
medical records, observations of treating physicians and others, and an individual’s
own description of his limitations. McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.
2000) (citing Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995)). Upon
remand, the Commissioner will be given the opportunity to review all the evidence
under the appropriate standards when making her RFC determination.
“Where the total record convincingly establishes disability and further
hearing would merely delay the receipt of benefits, this court has ordered the
immediate award of benefits without further proceedings.” Blakeman v. Astrue,
509 F.3d 878, 889 (8th Cir. 2007). I do not think that standard has been met here,
so I will remand for further proceedings as set out below. However, in light of the
fact that this case has already been remanded once, I would urge the Commissioner
to commence further proceedings without delay.
I find that the ALJ did not fulfill her duty of fully and fairly developing the
record and properly evaluating the evidence presented. As a result, I cannot
conclude that there is substantial evidence on the record as a whole to support the
Because substantial evidence in the record as a whole does not support the
- 42 -
ALJ’s decision, this matter is remanded to the Commissioner for a consideration of
Whitehead’s claim in light of all medical records on file, including an evaluation of
the opinions of Whitehead’s treating and consulting physicians under the
appropriate standards, and development of any additional facts as needed. The
Commissioner should reevaluate Whitehead’s physical and mental impairments and
complaints in accordance with Polaski and order additional testing or consultative
examinations, if necessary, assess a residual functional capacity consistent with the
medical and other evidence, and obtain vocational expert testimony to determine
whether Whitehead is capable of performing work in the national economy with
her limitations. Therefore, I reverse and remand pursuant to sentence four of 42
U.S.C. § 405(g) for further proceedings consistent with this Order. See Buckner v.
Apfel, 213 F.3d 1006, 1010 (8th Cir. 2000) (finding that remand under sentence
four of 42 U.S.C. section 405(g) is proper when the apparent purpose of the remand
was to prompt additional fact-finding and further evaluation of existing facts).
IT IS HEREBY ORDERED that the decision of the Commissioner is
reversed and the case is remanded to the Commissioner pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum
- 43 -
A separate Judgment in accord with this Memorandum and Order is entered
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 8th day of July, 2013.
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