O'Coin v. Astrue

Filing 26

MEMORANDUM OPINION..this cause will be reversed and remanded to the ALJ in order for the ALJ to properly evaluate and weigh the medical opinion evidence; formulate a new mental residual functional capacity for Plaintiff based on the medical evidence in the record, and further develop the medical record if necessary; and then to continue with the next steps of the sequentialevaluation process. Accordingly, a Judgment of Reversal and Remand will be entered separately in favor of Plaintiff in accordance with this Memorandum.. Signed by Magistrate Judge Abbie Crites-Leoni on 9/19/14. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARY E. O’COIN,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:13CV364 ACL

MEMORANDUM
This is an action under 42 U.S.C. ' 405(g) for judicial review of defendant=s final decision
denying the application of Mary E. O’Coin for Disability Insurance Benefits under Title II of the
Social Security Act. This case has been assigned to the undersigned United States Magistrate
Judge pursuant to the Civil Justice Reform Act and is being heard by consent of the parties. See
28 U.S.C. ' 636(c). Plaintiff filed a Brief in support of the Complaint. [Doc. 8] Defendant
filed a Brief in Support of the Answer. [Doc. 15] Plaintiff has filed a Reply. [Doc. 22]
Procedural History
On March 30, 2010, Plaintiff filed an application for Disability Insurance Benefits,
claiming that she became unable to work due to her disabling condition on June 30, 2006. (Tr.
92-96.) This claim was denied initially and, following an administrative hearing, Plaintiff=s
claim was denied in a written opinion by an Administrative Law Judge (ALJ), dated January 19,
2012. (Tr. 50, 9-23.) Plaintiff then filed a request for review of the ALJ=s decision with the
Appeals Council of the Social Security Administration (SSA), which was denied on December 27,
2012. (Tr. 7, 1-6.) Thus, the decision of the ALJ stands as the final decision of the

Commissioner. See 20 C.F.R. '' 404.981, 416.1481.
Evidence Before the ALJ
A.

ALJ Hearing
Plaintiff=s administrative hearing was held on December 7, 2011. Plaintiff was present

and was represented by counsel. Also present was vocational expert Delores E. Gonzalez.
The ALJ questioned Plaintiff, who testified that she was forty-four years of age, and was a
high school graduate. (Tr. 31.)
Plaintiff stated that she worked at Wendy’s as a shift manager for “a couple of years”
beginning in 1996. (Tr. 32) Plaintiff testified that she worked as a salvage coordinator at Safeco
from 1997 to 2006. Id. Plaintiff stated that she worked as a bookkeeper and office manager at
Carpenter Health Care prior to 1996. (Tr. 33)
Plaintiff testified that she was fired from her position at Safeco in 2006, because she was
unable to perform her job. Id. Plaintiff explained that she had difficulty with concentration and
would “get lost” in the middle of telephone conversations with customers. Id.
Plaintiff stated that she was not using cocaine or marijuana at the time she was fired. Id.
The ALJ noted that Plaintiff’s medical records indicate that she admitted to smoking marijuana in
August of 2007. (Tr. 34) Plaintiff testified that she does not remember when she stopped
smoking marijuana, but she had not smoked it in “quite some time.” Id. Plaintiff stated that she
had smoked marijuana to treat her pain, but she stopped smoking marijuana when she obtained
pain medication. Id.
Plaintiff testified that she was five-feet, seven-inches tall, and weighed 230 pounds at the
time of the hearing. (Tr. 35.) She stated that she had gained weight due to inactivity. Id.
2 

Plaintiff testified that she was receiving psychological care for depression and that the
depression “kills” her. Id. Plaintiff stated that, due to her depression, she does not shower often,
does not have any friends, does not clean, and does not do “much of anything.” (Tr. 36.)
Plaintiff testified that she had not gone gambling in approximately five years. Id.
Plaintiff stated that she has difficulty remembering to take her medication, and that her
mother reminds her. Id.
Plaintiff testified that she was injured in a shooting incident in 2003. Id. Plaintiff stated
that she was working for Safeco at the time of the shooting. Id. Plaintiff testified that her
hearing was tested in 2003, and it was determined that she has no hearing in her left ear. (Tr. 37.)
Plaintiff stated that she also has no feeling on the left side of her face, no feeling in her tongue, and
no taste buds. Id.
Plaintiff’s attorney questioned Plaintiff, who testified that, as a result of her depression, she
does not want to do anything, wants to sleep all the time, has no friends, and wants to hide by
herself. Id. Plaintiff stated that, about half of a typical week, she spends the entire day in bed.
(Tr. 37-38.) Plaintiff stated that she experiences crying spells “a couple of days a week.” (Tr.
38) Plaintiff testified that she has been hospitalized for experiencing suicidal thoughts. Id.
Plaintiff stated that she still experiences suicidal thoughts occasionally, and that her mother
comforts her when this occurs. (Tr. 39)
Plaintiff testified that she is unable to concentrate long enough to read a book or watch a
program on television. Id. Plaintiff stated that she does not do any household chores. Id.
Plaintiff testified that she no longer cooks, because she has left the oven on inadvertently and burnt
things. Id.
Plaintiff’s attorney next examined Ellen O’Coin, Plaintiff’s mother, who testified that
3 

Plaintiff was living with her at the time of the hearing. (Tr. 40.) Ms. O’Coin stated that Plaintiff
had lived with her since the 2003 shooting. Id. Ms. O’Coin testified that she retired in 2010.
Id.
Ms. O’Coin stated that Plaintiff does not help much with housework, because she forgets to
complete tasks; Plaintiff is unable to follow simple instructions without having them repeated, and
is unable to maintain concentration or focus; and she reminds Plaintiff to take her medication
constantly throughout the day. (Tr. 41)
Ms. O’Coin stated that she observes Plaintiff rubbing her face frequently due to pain she
experiences. (Tr. 42)
When asked by the ALJ, Ms. O’Coin did not know why Plaintiff went a month without
taking medications in July of 2011. (Tr. 43.) Ms. O’Coin stated that she either refills Plaintiff’s
medications and picks them up herself, or she accompanies Plaintiff when she picks up her
medication. Id.
The ALJ next examined the vocational expert, Ms. Gonzalez. (Tr. 44) The ALJ asked
Ms. Gonzalez to assume a hypothetical claimant with Plaintiff’s background and the following
limitations: able to perform a full range of light work; able to understand, remember, and carry
out at least simple instructions and non-detailed tasks; should not work in a setting that includes
constant or regular contact with the general public; should not perform work that includes more
than infrequent handling of customer complaints; and should not work in close proximity to
alcohol or controlled substances. Id. Ms. Gonzalez testified that the individual would be unable
to return to any of Plaintiff’s past work. Id. Ms. Gonzalez stated that the individual could
perform other light, unskilled work, such as housekeeping/cleaner (887,890 positions nationally,
21,660 in Missouri); and mail clerk (131,750 positions nationally, 3,430 in Missouri). (Tr.
4 

44-45.)
Plaintiff’s attorney asked Ms. Gonzalez to assume an individual with Plaintiff’s
background who, due to memory problems and poor concentration, is unable to remain on task in
excess of 25 percent of the time. (Tr. 45-46) Ms. Gonzalez testified that the individual would be
unable to perform any work in the national economy. (Tr. 46)
B.

Relevant Medical Records
The record reveals Plaintiff received treatment at Anderson Hospital and St. Louis

University in June 2003 after sustaining a gunshot wound to the head. (Tr. 441-62, 259-310.)
Plaintiff suffered multiple facial fractures and underwent extensive facial reconstruction surgeries.
(Tr. 240-306, 483-521.) Plaintiff also injured her left ear and had difficulty hearing on the left
side. (Tr. 413-36.)
Plaintiff began receiving mental health treatment from St. Charles Psychiatric Associates
in November of 2003. Plaintiff was prescribed Prozac1 and Seroquel2 for depression. (Tr.
337-38) In September 2004, it was noted that Plaintiff was having adjustment problems
following the shooting incident in which her boyfriend shot her and then killed himself. (Tr. 341)
Plaintiff was diagnosed with adjustment disorder and was assessed a GAF score3 of 61.4 (Tr.

1

Prozac is indicated for the treatment of major depressive disorder.    See Physician=s Desk
Reference (PDR), 2521 (63rd Ed. 2009).   
2
Seroquel is an anti-psychotic drug indicated for the treatment of bipolar disorder and
schizophrenia. See WebMD, http://www.webmd.com/drugs (last visited July 3, 2014).
3
The Global Assessment of Functioning Scale (GAF) 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” which 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).
4
A GAF score of 51 to 60 denotes “[m]oderate 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).” DSM-IV at 32.
5 

344.)
Plaintiff saw neurologist, Karen Pentella, M.D., from April 2004 through January 2005, for
complaints of headaches and chronic facial pain after sustaining a gunshot wound. (Tr. 352-67.)
Physical examinations revealed decreased range of motion in her jaw, decreased strength in the
upper left side of her face, decreased sensation on the left side of her tongue and decreased hearing
on the left. Id. Mental status examinations consistently noted a sad affect and depressed affect.
Plaintiff was diagnosed with multiple facial fractures, headache NOS, facial nerve palsy, facial
numbness, depression, chemical dependency disorder, and temporomandibular joint dysfunction.
Id.
Plaintiff was admitted at Two Rivers Psychiatric Hospital from April 25, 2005, through
May 6, 2005, for evaluation and treatment. (Tr. 377) Plaintiff reported feeling “really
depressed,” and experiencing suicidal ideation. It was noted Plaintiff had a suicide attempt via
overdose in the recent past. (Tr. 382.) Upon examination, Plaintiff had decreased grooming and
hygiene, endorsed thoughts of life not being worth living, and her insight and judgment were
“fair.” (Tr. 383) Plaintiff was diagnosed with posttraumatic stress disorder;5 major depression,
recurrent, severe without psychotic features; cannabis dependence; and cocaine abuse; with a GAF
score of 306 upon admission, and the highest in the past year of 45.7 Id. Plaintiff was treated

5

Development of characteristic long-term symptoms following a psychologically traumatic event
that is generally outside the range of usual human experience; symptoms include persistently
re-experiencing the event and attempting to avoid stimuli reminiscent of the trauma, numbed
responsiveness to environmental stimuli, a variety of autonomic and cognitive dysfunctions, and
dysphoria. Stedman’s Medical Dictionary, 570 (28th Ed. 2006).    
6
A GAF score of 21 to 30 indicates “[b]ehavior is considerably influenced by delusions or
hallucinations OR serious impairment in communication or judgment (e.g., sometimes incoherent,
acts grossly inappropriately, suicidal preoccupation) OR inability to function in almost all areas
(e.g., stays in bed all day; no job, home, or friends).” DSM-IV at 32.
7
A GAF score of 41 to 50 indicates “serious symptoms” or “any serious impairment in social,
6 

with multiple psychotropic medications, and it was noted that Wellbutrin8 seemed to have the
most effectiveness. (Tr. 377) Upon discharge, Plaintiff reported that her mood was “doing
better,” and her affect seemed to be brighter and more euthymic. Id. Plaintiff was assessed a
GAF score of 40-50, and was instructed to follow-up with outpatient services. Id.
Plaintiff underwent additional facial plastic surgery performed by Gregory Branham,
M.D., on May 16, 2006. (Tr. 477-79.)
Plaintiff saw Michelle Filippi-Robb, MA, at Crider Health Center (“Crider”) for a mental
health assessment on July 25, 2007. (Tr. 534.) Plaintiff reported that she was “in a deep
depression” and was unable to sleep. Id. Plaintiff indicated that she had lost her job and she
continued to experience a lot of physical pain due to her injuries. Id. Plaintiff reported that she
had been experiencing depressive symptoms for “fifteen plus years,” but she was not able to seek
psychiatric treatment until after the shooting incident, because her boyfriend would “not allow”
her to seek treatment. (Tr. 541.) Plaintiff had attempted suicide twice. Id. Plaintiff’s most
recent symptoms included: lack of energy, crying spells, isolation, disruptive sleep, and feelings
of hopelessness and worthlessness. Id. Plaintiff reported that she used marijuana “as often as
possible,” to assist her in coping with physical and emotional symptoms. Id. Upon examination,
Plaintiff’s attention and memory were normal, her ability to process abstract ideas was fair, her
judgment and insight were fair, her attitude was pleasant and cooperative, and her intellect
appeared normal. (Tr. 540.) Plaintiff was diagnosed with major depressive disorder, recurrent;
and cannabis dependence. (Tr. 541.) It was recommended that Plaintiff meet with a psychiatrist
and begin a medication regimen. Id.

occupational, or school functioning (e.g., no friends, unable to keep a job).” DSM-IV at 32.
8
Wellbutrin is an antidepressant drug indicated for the treatment of major depressive disorder.
See PDR at 1653-54.
7 

Plaintiff saw Omar Quadri, M.D., at Crider for an Initial Psychiatric Assessment on August
8, 2007. (Tr. 543.) Upon examination, Plaintiff was well-groomed, polite, calm and
cooperative; reported feeling sad, depressed, and anxious; her affect was anxious with no lability;
her responses were logical and goal directed; and her insight and judgment were good. (Tr.
543-44.) Dr. Quadri diagnosed Plaintiff with major depressive disorder and cannabis abuse, and
prescribed Cymbalta,9 Trazodone,10 and Lorazepam.11 (Tr. 544.) On August 22, 2007, Plaintiff
reported a low energy level and motivation and requested Ritalin.12 (Tr. 585) Plaintiff’s mood
was fair. Plaintiff was using marijuana three to four times a week. Id. Dr. Quadri discontinued
the Lorazepam, added Hydroxyzine13 for anxiety, and noted that Plaintiff was “drug seeking for
benzos and Ritalin.” Id.
Plaintiff saw David A. Lipsitz, Ph.D., for a psychological consultation upon the referral of
the state agency on August 28, 2007. (Tr. 526.) Plaintiff reported experiencing depression,
insomnia, diminished energy level, diminished interest level, recurrent anxiety attacks, and
suicidal thoughts. (Tr. 527.) Upon examination, Plaintiff appeared “in some acute distress.”
(Tr. 528.) Plaintiff’s affect was flat, her mood was depressed, and her intellectual functioning
appeared to be within the “borderline” range. Id. Dr. Lipsitz found that Plaintiff showed
memory problems for both recent and remote events, her concentration was poor, her insight and

9

Cymbalta is indicated for the treatment of major depressive disorder and generalized anxiety

disorder. See PDR at 1801.
10
Trazodone is an antidepressant indicated for the treatment of depression and other mood
disorders. See WebMD, http://www.webmd.com/drugs (last visited July 3, 2014).
11
Lorazepam is indicated for the treatment of anxiety. See WebMD,
http://www.webmd.com/drugs (last visited July 3, 2014).
12
Ritalin is indicated for the treatment of attention deficit hyperactivity disorder. See WebMD,
http://www.webmd.com/drugs (last visited July 3, 2014).
13
Hydroxyzine is indicated for the short-term treatment of anxiety. See WebMD,
http://www.webmd.com/drugs (last visited July 3, 2014).
8 

judgment were poor, and her thought processes were primarily preoccupied with her multiple
somatic problems from the gunshot wound and her inability to function within society. Id. Dr.
Lipsitz diagnosed Plaintiff with major depression, rule out post-traumatic stress disorder; and a
GAF score of 47. Id. Dr. Lipsitz stated that Plaintiff was in need of ongoing psychiatric
treatment combining medication with individual psychotherapy. (Tr. 529.) Dr. Lipsitz found
that Plaintiff was unable to handle her own financial affairs in a satisfactory manner. Id. Dr.
Lipsitz stated that Plaintiff was able to understand and remember instructions, but “she is having
difficulty sustaining concentration and persistence with tasks and she is having difficulty
interacting socially and adapting to her environment.” Id.
Marc Maddox, Ph.D., a state agency psychologist, completed a Psychiatric Review
Technique on September 12, 2007. (Tr. 549-59.) Dr. Maddox found that Plaintiff’s depression
was severe, but it was not expected to last twelve months. (Tr. 549.) Dr. Maddox stated that
Plaintiff was severely depressed at that time and it was unlikely that she would be able to work.
Dr. Maddox stated that Plaintiff stopped taking her medications over a year ago and was placed
back on medications in August of 2007. (Tr. 559) Dr. Maddox stated that “[i]t is anticipated that
her condition will improve within 12 months and become not severe as long as she continues with
treatment.” Id. Dr. Maddox expressed the opinion that, in August of 2008, Plaintiff would have
only mild limitations in her activities of daily living, ability to maintain social functioning, and
ability to maintain concentration, persistence, or pace. (Tr. 557)
Plaintiff saw Dr. Quadri for follow-up on September 12, 2007, at which time Plaintiff
continued to feel tired and poorly motivated. Plaintiff’s mood was better. She continued to use
marijuana three to four times a week. Dr. Quadri increased Plaintiff’s dosage of Cymbalta. (Tr.
587.) On October 23, 2007, Plaintiff reported that her mood was “a lot better,” with significant
9 

reduction in depression and anxiety. (Tr. 588.) Plaintiff continued to report poor motivation and
low energy level all day. Id. Dr. Quadri added Deplin14 to Plaintiff’s medication regimen. Id.
On November 20, 2007, Plaintiff reported a good mood, and an improved motivation and energy
level with the addition of Deplin. (Tr. 589.) Plaintiff had decreased her marijuana usage to
about once a month. Id. Plaintiff requested Xanax15 to help calm her down, as she was anxious
about seeing family over the holidays. Id. Dr. Quadri prescribed a limited supply of Xanax to
get Plaintiff through the holidays. Id.
Plaintiff presented to Dr. Quadri on May 7, 2008, after “a hiatus of 6 months.” (Tr. 590.)
Plaintiff had been off all of her medications “for several months.” Id. Plaintiff reported that she
was doing fine until quite recently, when she decompensated in the context of a break-up with her
boyfriend. Id. Plaintiff experienced an abandonment crisis when her boyfriend refused to leave
his wife for her. Id. Plaintiff felt depressed, had low energy and poor motivation, and her sleep
was disturbed by nightmares. Id. Plaintiff denied alcohol, marijuana or other drug abuse. Id.
Dr. Quadri diagnosed Plaintiff with major depressive disorder; cannabis and cocaine abuse in full
remission; gambling addiction; and borderline personality disorder.16 Id. He restarted Plaintiff
on Cymbalta, Trazodone, and Deplin. Id. On June 10, 2008, Plaintiff reported that she had
started seeing her married boyfriend again. (Tr. 591.) Plaintiff continued to feel depressed due
to her current situation. Id. Plaintiff felt tired and poorly motivated, but indicated that the

14

Deplin is a derivative of folate indicated for the treatment of depression. See WebMD,
http://www.webmd.com/drugs (last visited July 3, 2014).
15
Xanax is a benzodiazepine indicated for the treatment of anxiety and panic disorders. See
WebMD, http://www.webmd.com/drugs (last visited July 3, 2014).
16
An enduring and pervasive pattern that begins by early adulthood and is characterized by
impulsivity and unpredictability, unstable interpersonal relationships, inappropriate or
uncontrolled affect, identity disturbances, rapid shifts of mood, suicidal acts, self-mutilations, job
and marital instability, chronic feelings of emptiness or boredom, and intolerance of being alone.
See Stedman’s at 568.
10 

Deplin gave her an energy boost. Id. Dr. Quadri continued Plaintiff’s medications. Id. On
July 8, 2008, Plaintiff felt lonely and depressed. (Tr. 592.) Plaintiff reported that she was trying
to stay away from her ex-boyfriend, but she had taken his calls on a couple of occasions. Id. On
August 27, 2008, Plaintiff reported feeling much better. (Tr. 593.) Plaintiff had not been seeing
her ex-boyfriend, and she was helping her parents with chores. Id. Dr. Quadri decreased
Plaintiff’s dosage of Trazodone due to the sedative effect Plaintiff reported. Id. On December
10, 2008, Plaintiff was “emotionally doing well.” (Tr. 594.) Plaintiff’s affect was euthymic, her
mood was good, she was sleeping well, her energy was fair, she had no anhedonia, and her
concentration was good. Id. Dr. Quadri continued Plaintiff’s medications. Id. On February
11, 2009, Plaintiff’s mood was good and her affect was euthymic. (Tr. 595.) Plaintiff denied
feeling sad or depressed and her energy level was good. Id. Plaintiff was helping her mother
with arrangements for her brother’s wedding. Id. On July 1, 2009, Plaintiff denied feeling
depressed, but reported low energy and poor motivation. (Tr. 596.) Dr. Quadri increased
Plaintiff’s dosage of Cymbalta (Duloxetine). Id.
Plaintiff presented to the emergency department at St. Joseph Health Center on November
29, 2009, with complaints of depression, suicidal thoughts, anxiety, and stress. (Tr. 566.) Upon
examination, Plaintiff appeared distressed and anxious. (Tr. 567.) Plaintiff was diagnosed with
depression, and was admitted. (Tr. 569.) On November 30, 2009, Plaintiff reported that she had
become depressed and reported thoughts of suicide after ending a relationship with a married man
five days prior. Id. Saaid Khojasteh, M.D., diagnosed Plaintiff with major affective disorder,
depression, recurrent; rule out bipolar disorder; rule our borderline personality; and a GAF score of
30. (Tr. 570.) Plaintiff received medication management and counseling. (Tr. 574.) Plaintiff
was discharged on December 9, 2009, with diagnoses of major affective disorder, depression,
11 

recurrent; probable bipolar affective disorder;17 probable borderline personality disorder; and a
GAF score of 50. (Tr. 575.) Plaintiff was prescribed Cymbalta, Trazodone, and Seroquel. (Tr.
574.)
Plaintiff presented to Dr. Quadri on December 16, 2009. (Tr. 597.) Dr. Quadri noted that
Plaintiff had become non-compliant with follow-up and medication since her last visit in July of
2009. Id. Dr. Quadri indicated that Plaintiff’s recent hospitalization was consistent with an
abandonment crisis of borderline personality disorder. Id. Plaintiff reported that she had not had
any suicidal thoughts since her discharge, but she was tearful and constantly crying during the
interview. Id. Plaintiff indicated that she had been smoking marijuana. Id. Dr. Quadri
continued the Cymbalta, discontinued Seroquel, increased the Trazodone, and added Lunesta.18
Id. On January 19, 2010, Dr. Quadri noted Plaintiff’s mood had improved dramatically since she
was back with her boyfriend. (Tr. 598.) Plaintiff’s speech was slightly pressured. Id.
Plaintiff’s mother reported that Plaintiff could go several days of sleeping up to forty hours, and
then she has periods of insomnia and seems to have a lot of energy. Id. Dr. Quadri diagnosed
Plaintiff with possible bipolar II disorder.19 Id. He reduced Plaintiff’s dosage of Cymbalta and
added Abilify20 for mood stabilization and possible bipolar disorder. Id. On February 17, 2010,
Plaintiff reported sleeping a lot, but feeling tired again within hours after waking. (Tr. 599.)
Plaintiff was using a little bit of marijuana every day. Id. Plaintiff’s mood had been good, and
she was not feeling depressed. Id. Plaintiff’s boyfriend was “working on getting divorced,” and

17

An affective disorder characterized by the occurrence of alternating manic, hypomanic or mixed
episodes and with major depressive episodes. See Stedman’s at 1729.
18
Lunesta is indicated for the treatment of insomnia. See PDR at 2994-95.     
19
An affective disorder characterized by the occurrence of alternating hypomanic and major
depressive episodes. Stedman’s at 568.
20
Abilify is an antipsychotic drug indicated for the treatment of bipolar disorder and major
depressive disorder. See PDR at 881.
12 

was living with Plaintiff at her parents’ home. Id. Dr. Quadri reduced Plaintiff’s dosage of
Cymbalta, and increased her dosage of Abilify. Id. On March 24, 2010, Plaintiff reported that
she was “doing really well.” (Tr. 600.) Plaintiff’s mood was good and her affect was euthymic.
Plaintiff was walking with her mother every morning and felt more energetic. Id. She continued
to smoke marijuana twice weekly. Id. Dr. Quadri diagnosed Plaintiff with bipolar disorder II;
cannabis abuse-active; cocaine abuse in full remission; gambling addiction; and borderline
personality disorder. Id. He continued Plaintiff’s medications. Id.
Robert Cottone, Ph.D., a state agency psychologist, completed a Psychiatric Review
Technique on June 21, 2010. (Tr. 605-16.) Dr. Cottone diagnosed Plaintiff with bipolar
disorder, personality disorder, cannabis abuse, and cocaine abuse. (Tr. 608-11.) Dr. Cottone
expressed the opinion that Plaintiff had mild limitations in her activities of daily living; moderate
limitations in her ability to maintain social functioning; moderate limitations in her ability to
maintain concentration, persistence, or pace; and one or two episodes of decompensation. (Tr.
613.)
Dr. Cottone also Completed a Mental Residual Functional Capacity Assessment (Tr.
617-619), in which he found Plaintiff was moderately limited in the following areas: ability to
maintain attention and concentration for extended periods; ability to work in coordination with or
proximity to others without being distracted by them; ability to complete a normal workday and
workweek without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods; ability to interact
appropriately with the general public; ability to accept instructions and respond appropriately to
criticism from supervisors; ability to get along with coworkers or peers without distracting them or
exhibiting behavioral extremes; and ability to set realistic goals or make plans independently of
13 

others. Id. Dr. Cottone found that Plaintiff had marked limitations in the following areas:
ability to understand and remember detailed instructions; and ability to carry out detailed
instructions. Id. Dr. Cottone stated that Plaintiff must avoid work involving: intense or
extensive interpersonal interaction; handling complaints or dissatisfied customers; close proximity
to co-workers; and close proximity to available controlled substances. Id. Dr. Cottone stated
that Plaintiff is able to: understand, remember, carry out, and persist at simple tasks; make simple
work-related judgments; relate adequately to co-workers or supervisors; and adjust adequately to
ordinary changes in the work routine or setting. Id.
Plaintiff presented to Dr. Quadri on June 23, 2010, at which time her mood was good and
her affect was euthymic. (Tr. 640.) Plaintiff denied feeling depressed. Id. Plaintiff did report
poor motivation and energy level. Id. Plaintiff had not smoked marijuana in “a couple of
months.” Id. Dr. Quadri added Wellbutrin to Plaintiff’s medication regimen. Id. Plaintiff
presented to Dr. Quadri on December 15, 2010, after being non-complaint with follow-up for six
months. (Tr. 641) Plaintiff had ended a relationship with a married man three months prior and
had been depressed. Id. Plaintiff also reported low energy and poor motivation to do anything.
Plaintiff had not used marijuana in months. Id. On January 12, 2011, Plaintiff’s mood had
improved “a lot.” (Tr. 642.) Plaintiff reported feeling good and her affect was euthymic. Id.
Plaintiff continued to sleep excessively and her energy level was fair. Id. Plaintiff denied
alcohol or marijuana use. Id. On March 2, 2011, Plaintiff reported feeling better. (Tr. 643.)
Plaintiff denied feeling depressed or anxious. Id. Plaintiff was smoking marijuana twice a week
“to calm down.” Id. On July 13, 2011, Plaintiff reported she felt she was “going down hill.”
(Tr. 644.) She had been non-compliant with medications for one month. Id. Plaintiff’s mood
was bad and she became tearful. Id. Plaintiff’s energy level was low, and she was poorly
14 

motivated. Id. She was not attending to personal grooming and reported it was “hard to even
take a shower.” Id. Plaintiff denied marijuana or alcohol use. Id. Dr. Quadri resumed
Plaintiff’s medications. Id. On August 17, 2011, Plaintiff reported having no motivation and a
low activity level. (Tr. 645.) Her mood was “down,” and she was experiencing crying spells.
Id. Plaintiff reported poor personal grooming, noting “I don’t go anywhere so why shower,” and
“I don’t have a life.” Id. Plaintiff’s concentration and attention span were “not good.” Id.
Plaintiff denied marijuana or alcohol use. Id.
The ALJ=s Determination
The ALJ made the following findings:
1.

The claimant last met the insured status requirements of the Social Security Act on
December 31, 2011.

2.

The claimant did not engage in substantial gainful activity during the period from
her alleged onset date of June 30, 2006 through her date last insured of December
31, 2011(20 CFR 404.1571 et seq.).

3.

Through the date last insured, the claimant had the severe impairments of obesity,
bipolar disorder, personality disorder and cannabis abuse (20 CFR 404.1520(c)).

4.

Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled the severity of any of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).

5.

After careful consideration of the entire record, the undersigned finds that, through
the date last insured, the claimant has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b). The claimant can lift 20 pounds
occasionally, ten pounds frequently, walk/stand approximately six hours out of
eight, and sit at least six hours out of eight. The claimant can understand,
remember and carry out at least simple instructions and non-detailed tasks. She
should not work in a setting which includes constant/regular contact with the
general public; should not perform work which includes more than infrequent
handling of customer complaints; should not work in close proximity to alcohol or
controlled substances.

6.

Through the date last insured, the claimant was unable to perform any past relevant
15 

work (20 CFR 404.1565).
7.

The claimant was born on November 26, 1967 and was 44 years old, which is
defined as a younger individual age 18-49, on the date last insured (20 CFR
404.1563).

8.

The claimant has a high school education and is able to communicate in English (20
CFR 404.1564).

9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding that
the claimant is “not disabled,” whether or not the claimant has transferable job
skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10.

Through the date last insured, considering the claimant’s age, education, work
experience, and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that the claimant could have
performed (20 CFR 404.1569 and 404.1569(a)).

11.

The claimant was not under a disability, as defined in the Social Security Act, at
any time from June 30, 2006, the alleged onset date, through December 31, 2011,
the date last insured (20 CFR 404.1520(g)).

(Tr. 14-23).
The ALJ=s final decision reads as follows:
Based on the application for a period of disability and disability insurance benefits
filed on March 30, 2010, the claimant was not disabled under sections 216(i) and
223(d) of the Social Security Act through December 31, 2011, the last date insured.
(Tr. 23.)
Discussion
A.

Standard of Review
Judicial review of a decision to deny Social Security benefits is limited and deferential to

the agency. See Ostronski v. Chater, 94 F.3d 413, 416 (8th Cir. 1996). The decision of the SSA
will be affirmed if substantial evidence in the record as a whole supports it. See Roberts v. Apfel,
222 F.3d 466, 468 (8th Cir. 2000). Substantial evidence is less than a preponderance, but enough
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that a reasonable mind might accept it as adequate to support a conclusion. See Kelley v.
Callahan, 133 F.3d 583, 587 (8th Cir. 1998). If, after review, it is possible to draw two
inconsistent positions from the evidence and one of those positions represents the Commissioner=s
findings, the denial of benefits must be upheld. See Robinson v. Sullivan, 956 F.2d 836, 838 (8th
Cir. 1992). The reviewing court, however, must consider both evidence that supports and
evidence that detracts from the Commissioner=s decision. See Johnson v. Chater, 87 F.3d 1015,
1017 (8th Cir. 1996)(citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)). A[T]he court
must also take into consideration the weight of the evidence in the record and apply a balancing
test to evidence which is contrary.@ Burress v. Apfel, 141 F.3d 875, 878 (8th Cir. 1998). The
analysis required has been described as a Asearching inquiry.@ Id.
B.

Determination of Disability
The Social Security Act defines disability as the Ainability 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 has lasted or can be expected to last for a continuous period of not
less than 12 months.@ 42 U.S.C. ' 416 (I)(1)(a); U.S.C. ' 423 (d)(1)(a). The claimant has the
burden of proving that s/he has a disabling impairment. See Ingram v. Chater, 107 F.3d 598, 601
(8th Cir. 1997).
The SSA Commissioner has established a five-step process for determining whether a
person is disabled. See 20 C.F.R. '' 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137,
141-42, 107 S. Ct. 2287, 2291, 96 L. Ed. 2d. 119 (1987); Fines v. Apfel, 149 F.3d 893, 894-895
(8th Cir. 1998). First, it is determined whether the claimant is currently engaged in Asubstantial
gainful employment.@ If the claimant is, disability benefits must be denied. See 20 C.F.R. ''
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404.1520, 416.920 (b). Step two requires a determination of whether the claimant suffers from a
medically severe impairment or combination of impairments. See 20 C.F.R '' 404.1520 (c),
416.920 (c). To qualify as severe, the impairment must significantly limit the claimant=s mental
or physical ability to do Abasic work activities.@ Id. Age, education and work experience of a
claimant are not considered in making the Aseverity@ determination. See id.
If the impairment is severe, the next issue is whether the impairment is equivalent to one of
the listed impairments that the Commissioner accepts as sufficiently severe to preclude substantial
gainful employment. See 20 C.F.R. '' 404.1520 (d), 416.920 (d). This listing is found in
Appendix One to 20 C.F.R. 404. 20 C.F.R. pt. 404, subpt. P, App. 1. If the impairment meets or
equals one of the listed impairments, the claimant is conclusively presumed to be impaired. See
20 C.F.R. '' 404.1520 (d), 416.920 (d). If it does not, however, the evaluation proceeds to the
next step which inquires into whether the impairment prevents the claimant from performing his or
her past work. See 20 C.F.R. ' 404.1520 (e), 416.920 (e). If the claimant is able to perform the
previous work, in consideration of the claimant=s residual functional capacity (RFC) and the
physical and mental demands of the past work, the claimant is not disabled. See id. If the
claimant cannot perform his or her previous work, the final step involves a determination of
whether the claimant is able to perform other work in the national economy taking into
consideration the claimant=s residual functional capacity, age, education and work experience.
See 20 C.F.R. '' 404.1520 (f), 416.920 (f). The claimant is entitled to disability benefits only if
s/he is not able to perform any other work. See id. Throughout this process, the burden remains
upon the claimant until s/he adequately demonstrates an inability to perform previous work, at
which time the burden shifts to the Commissioner to demonstrate the claimant=s ability to perform
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other work. See Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
The evaluation process for mental impairments is set forth in 20 C.F.R. '' 404.1520a,
416.920a. The first step requires the Commissioner to Arecord the pertinent signs, symptoms,
findings, functional limitations, and effects of treatment@ in the case record to assist in the
determination of whether a mental impairment exists. See 20 C.F.R. '' 404.1520a (b) (1),
416.920a (b) (1). If it is determined that a mental impairment exists, the Commissioner must
indicate whether medical findings Aespecially relevant to the ability to work are present or absent.@
20 C.F.R. '' 404.1520a (b) (2), 416.920a (b) (2). The Commissioner must then rate the degree of
functional loss resulting from the impairments in four areas deemed essential to work: activities
of daily living, social functioning, concentration, and persistence or pace. See
20 C.F.R. '' 404.1520a (b) (3), 416.920a (b) (3). Functional loss is rated on a scale that ranges
from no limitation to a level of severity which is incompatible with the ability to perform
work-related activities. See id. Next, the Commissioner must determine the severity of the
impairment based on those ratings. See 20 C.F.R. '' 404.1520a (c), 416.920a (c). If the
impairment is severe, the Commissioner must determine if it meets or equals a listed mental
disorder. See 20 C.F.R. '' 404.1520a(c)(2), 416.920a(c)(2). This is completed by comparing
the presence of medical findings and the rating of functional loss against the paragraph A and B
criteria of the Listing of the appropriate mental disorders. See id. If there is a severe
impairment, but the impairment does not meet or equal the listings, then the Commissioner must
prepare a residual functional capacity assessment. See 20 C.F.R. '' 404.1520a (c)(3), 416.920a
(c)(3).

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C.

Plaintiff=s Claim
Plaintiff argues that the ALJ erred in evaluating the medical opinion evidence when

assessing her mental RFC. Plaintiff does not challenge the ALJ’s findings with regard to
Plaintiff’s physical RFC.
The ALJ made the following determination with regard to plaintiff’s RFC:
After careful consideration of the entire record, the undersigned finds that, through the date
last insured, the claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b). The claimant can lift 20 pounds occasionally, ten pounds
frequently, walk/stand approximately six hours out of eight, and sit at least six hours out of
eight. The claimant can understand, remember and carry out at least simple instructions
and non-detailed tasks. She should not work in a setting which includes constant/regular
contact with the general public; should not perform work which includes more than
infrequent handling of customer complaints; should not work in close proximity to alcohol
or controlled substances.
(Tr. 16.)
RFC is what a claimant can do despite her limitations, and it must be determined on the
basis of all relevant evidence, including medical records, physician=s opinions, and claimant=s
description of her limitations. Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001).
Although the ALJ bears the primary responsibility for assessing a claimant=s RFC based on all
relevant evidence, a claimant=s RFC is a medical question. Hutsell v. Massanari, 259 F.3d 707,
711 (8th Cir. 2001) (citing Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001)). Therefore, an ALJ
is required to consider at least some supporting evidence from a medical professional. See Lauer,
245 F.3d at 704 (some medical evidence must support the determination of the claimant=s RFC);
Casey v. Astrue, 503 F.3d 687, 697 (8th Cir. 2007) (the RFC is ultimately a medical question that
must find at least some support in the medical evidence in the record). An RFC determination
made by an ALJ will be upheld if it is supported by substantial evidence in the record. See Cox v.
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Barnhart, 471 F.3d 902, 907 (8th Cir. 2006).
Plaintiff argues that the ALJ erred in failing to discuss the opinions of consultative
psychologist Dr. Lipsitz and state agency psychologist Dr. Maddox. Plaintiff contends that the
relevant regulations require the ALJ to explain the weight given to these opinions.
In making a disability determination, the ALJ shall “always consider the medical
opinions in [the] case record together with the rest of the relevant evidence” in the record.

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C.F.R. § 404.1527(b). See Heino v. Astrue, 578 F.3d 873, 879 (8th Cir. 2009). “Medical
opinions are statements from physicians and psychologists or other acceptable medical sources
that reflect judgments about the nature and severity of [the claimant’s] impairment(s), including
[the claimant’s] symptoms, diagnosis and prognosis, what [the claimant] can still do despite
impairment(s), and [his or her] physical or mental restrictions.”

20 C.F.R. § 404.1527(a)(2).

The ALJ has the role of resolving conflicts among the opinions of various treating and
examining physicians. Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001).

“Unless a

treating source’s opinion is given controlling weight, the administrative law judge must explain
in the decision the weight given to the opinions of a State agency medical or psychological
consultant or other program physician, psychologist, or other medical specialist.” 20 C.F.R. §
404.1527(e)(2)(ii).
The ALJ may reject the conclusions of any medical expert, whether hired by the
government or the claimant, if they are inconsistent with the record as a whole.
F.3d at 1219.

Pearsall, 274

“A treating physician’s opinion is given controlling weight if it ‘is

well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [a claimant’s] case record.’”
Astrue, 580 F.3d 675, 679 (8th Cir. 2009) (quoting 20 C.F.R. § 404.1527(d)(2)).
21 

Tilley v.
The opinion

of an examining physician is generally entitled to more weight than the opinion of a
non-examining physician.

20 C.F.R. ' 404.1527(d)(1).

In this case, the ALJ indicated that he was affording “considerable weight” to Plaintiff’s
“treating and examining physicians, none of whom placed any restrictions on the claimant, and
the remainder of the medical record.”

(Tr. 21.) The ALJ also stated that the opinion of the

“agency reviewer” was “unrefuted by any treating or examining source.” Id.

The ALJ did not

mention the opinions of Drs. Lipsitz and Maddox.
Plaintiff saw Dr. Lipsitz, a consultative psychologist, on August 28, 2007, upon the
referral of the state agency.

(Tr. 526.) Upon examination, Plaintiff appeared “in some acute

distress.” (Tr. 528.) Plaintiff’s affect was flat, her mood was depressed, and her intellectual
functioning appeared to be within the “borderline” range. Id. Dr. Lipsitz found that Plaintiff
showed memory problems for both recent and remote events, her concentration was poor, her
insight and judgment were poor, and her thought processes were primarily preoccupied with her
multiple somatic problems from the gunshot wound and her inability to function within society.
Id. Dr. Lipsitz diagnosed Plaintiff with major depression, rule out post-traumatic stress disorder;
and a GAF score of 47. Id. Dr. Lipsitz found that Plaintiff was unable to handle her own
financial affairs in a satisfactory manner. (Tr. 529.) Dr. Lipsitz stated that Plaintiff was able to
understand and remember instructions, but “she is having difficulty sustaining concentration and
persistence with tasks and she is having difficulty interacting socially and adapting to her
environment.” Id.
On September 12, 2007, non-examining state agency psychologist Marc Maddox
completed a Psychiatric Review Technique. (Tr. 549-59.) Dr. Maddox found that Plaintiff’s
depression was severe, but it was not expected to last twelve months. (Tr. 549.) Dr. Maddox
22 

stated that Plaintiff was severely depressed at that time and it was unlikely that she would be able
to work. (Tr. 559) Dr. Maddox stated that Plaintiff stopped taking her medications over a year
ago and was placed back on medications in August of 2007. Id. Dr. Maddox stated that “[i]t is
anticipated that her condition will improve within 12 months and become not severe as long as she
continues with treatment.” Id. Dr. Maddox expressed the opinion that, in August of 2008,
Plaintiff would have only mild limitations in her activities of daily living, ability to maintain social
functioning, and ability to maintain concentration, persistence, or pace. (Tr. 557)
The undersigned finds that the ALJ erred in assessing the medical opinion evidence. The
ALJ failed to provide any discussion of the opinions of Drs. Lipsitz or Maddox. The ALJ
indicated that he was affording “considerable weight” to Plaintiff’s “treating and examining
physicians, none of whom placed any restrictions on the claimant...”

(Tr. 21.)

Dr. Lipsitz,

however, was an examining psychologist, and found that Plaintiff had multiple restrictions due to
her psychiatric impairments.

Dr. Lipsitz noted significant findings on examination, and found

that Plaintiff had difficulty sustaining concentration and persistence with tasks, difficulty
interacting socially, difficulty adapting to her environment, and was unable to handle her financial
affairs. (Tr. 529.) There is no indication that the ALJ considered Dr. Lipsitz’s findings, as he
made no reference to Dr. Lipsitz’s report, and did not indicate the weight, if any, he was assigning
to the opinion.
Similarly, the ALJ failed to discuss the September 2007 opinion of non-examining state
agency psychologist Dr. Maddox. Dr. Maddox found that Plaintiff was severely depressed and
likely unable to work at that time, although he expressed the opinion that Plaintiff’s condition
would likely improve in 12 months. (Tr. 559.) The ALJ did not mention Dr. Maddox’s report
specifically, but indicated that the opinion of “the agency reviewer” was unrefuted. (Tr. 21.)
23 

The identity of the “agency reviewer” to whom the ALJ refers is entirely unclear.
Defendant acknowledges that the ALJ did not specifically address the opinions of Drs.
Lipsitz and Maddox, but argues that Plaintiff has failed to establish prejudicial error.
“While a deficiency in opinion-writing is not a sufficient reason to set aside an ALJ's
finding where the deficiency [has] no practical effect on the outcome of the case, inaccuracies,
incomplete analyses, and unresolved conflicts of evidence can serve as a basis for remand.”
Draper v. Barnhart, 425 F.3d 1127, 1130 (8th Cir. 2005) (internal citations and quotation marks
omitted) (alteration in Draper).
Drs. Lipsitz and Maddox found that Plaintiff suffered from significant limitations due to
her psychiatric impairments. These opinions lend support to Plaintiff’s allegations of a disabling
mental impairment. The ALJ’s misstatement that no examining physician placed any restriction
on Plaintiff, coupled with his failure to consider and weigh the opinions of Drs. Lipsitz and
Maddox, creates uncertainty and casts doubt upon the ALJ’s rationale for denying Plaintiff’s
claims. See Willcockson v. Astrue, 540 F.3d 878, 879-80 (8th Cir. 2008). Because it cannot be
determined from the ALJ’s decision whether he properly reviewed the evidence of record, the
matter must be remanded.
Conclusion
Substantial evidence does not support the ALJ’s mental RFC determination.

Because

the RFC formulated by the ALJ was flawed, the ALJ’s determination that Plaintiff was capable
of performing other work in the national economy was also erroneous.
For these reasons, this cause will be reversed and remanded to the ALJ in order for the ALJ
to properly evaluate and weigh the medical opinion evidence; formulate a new mental residual
functional capacity for Plaintiff based on the medical evidence in the record, and further develop
24 

the medical record if necessary; and then to continue with the next steps of the sequential
evaluation process. Accordingly, a Judgment of Reversal and Remand will be entered separately
in favor of Plaintiff in accordance with this Memorandum.

_______________________________
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 19th day of September, 2014.

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