Sluka v. Colvin

Filing 26

MEMORANDUM AND ORDER: 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 9/24/2014. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JEFF C. SLUKA,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:13CV948 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 Jeff C. Sluka for Disability Insurance Benefits under Title II of the
Social Security Act and Supplemental Security Income under Title XVI of the 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. 13] Defendant filed a Brief in Support of the Answer.
[Doc. 20]
Procedural History
On October 15, 2010, Plaintiff filed applications for Disability Insurance Benefits and
Supplemental Security Income, claiming that he became unable to work due to his disabling
condition on July 31, 2008.1 (Tr. 122-36.) These claims were denied initially and, following an
administrative hearing, Plaintiff=s claims were denied in a written opinion by an Administrative

1

Plaintiff subsequently amended his alleged onset of disability date to April 21, 2011. (Tr. 152).

Law Judge (ALJ), dated June 25, 2012. (Tr. 66-70, 11-27.) 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 April 2, 2013. (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 May 8, 2012. (Tr. 33.) Plaintiff was

present and represented by counsel. Also present was vocational expert Brenda Young.
The ALJ examined Plaintiff, who testified that he was fifty years of age and had an
eleventh grade education and never obtained a GED. (Tr. 34.)
Plaintiff testified that his prior work included working at: Schnucks as a stocker from
1995 to 1997; Hoss as a baker and on the production line from 1998 to 2002 (Tr. 35.); Sunset
Memorial from 2003 to 2004 as a grounds keeper and grave digger; a company where he
assembled cubicles from 2005 to 2006 (Tr. 35-36). The cubicle assembler job sometimes
required Plaintiff to lift “a couple hundred pounds.” (Tr. 36.) Plaintiff was laid off from that
position (Tr. 37) and he received unemployment benefits after being laid off (Tr. 38). Plaintiff
did not work anywhere else after receiving unemployment benefits. Id.
At the time of the hearing, Plaintiff was five-feet, eight-inches tall and weighed 200
pounds. Id. He had problems with alcohol fifteen years prior to the hearing, but stated that he
last consumed alcohol (one drink) several months prior to the hearing. (Tr. 39.) Plaintiff also
had a history of using marijuana, uppers, downers, cocaine and heroin use fifteen years prior to the
hearing. Id.
2 

Plaintiff testified that he experiences depression and anxiety. (Tr. 40.) Plaintiff lives in
the basement of his parents’ home and does not leave his house. Id. He experiences paranoia
and low energy, and has no friends. Id.
Plaintiff testified that he also has hepatitis C.2 (Tr. 41.) At the time of the hearing,
Plaintiff had not received treatment for the hepatitis C, but was in the process of seeking treatment.
Id.
Plaintiff testified that he was wearing an Ace bandage on his right hand at the hearing,
because he broke his hand more than ten years prior to the hearing, and his hand still bothered him.
Plaintiff explained that he is unable to pick up items with his right hand “like [he] used to.” (Tr.
42.)
Plaintiff testified that he has high cholesterol, but does not take medication for this
condition. Id. Plaintiff stated that he takes his medications as prescribed, but does not really
know the purpose of each medication. Id.
Plaintiff testified that he sees Dr. Surendra Chaganti every month for depression and stress.
Id. Plaintiff stated that some of the medications Dr. Chaganti prescribes help his conditions. Id.
When questioned by his attorney, Plaintiff testified that he went to the emergency room for
chest pains a few months prior to the hearing, and was told that the pain was caused by stress. (Tr.
43.)
Plaintiff testified that he takes Seroquel,3 which helps him sleep, but causes swelling in his

2

Inflammation of the liver due to viral infection. About 75 percent of hepatitis C infections give
rise to chronic persistent infection. A high percentage of these develop chronic liver disease
leading to cirrhosis and possible hepatocellular carcinoma. See Stedman’s Medical Dictionary,
877 (28th Ed. 2006).
3
Seroquel is an anti-psychotic drug indicated for the treatment of bipolar disorder and
schizophrenia. See WebMD, http://www.webmd.com/drugs (last visited September 10, 2014). 
3 

hands and feet for a couple of months. Id. Plaintiff stated that he has not yet told his doctor
about the swelling. (Tr. 43-44.)
Plaintiff testified that he had been wearing the Ace bandage on his hand for “a couple
weeks” and that he only wore it when his hand started to bother him. (Tr. 44)
Plaintiff testified that he experiences back pain due to a car accident he was involved in ten
years prior to the hearing. Id. Plaintiff stated that he was unable to mow the yard due to his hand
and back pain. Id.
Plaintiff testified that he gets “the shakes” periodically, including when he was working.
(Tr. 45)
Plaintiff testified that he did not receive medical treatment prior to 2011, because he started
receiving Medicaid in 2011 and was unable to afford treatment prior to this time. (Tr. 46.)
Plaintiff stated that he receives treatment at South County Health Center. Id. Plaintiff
testified that he was prescribed pain medication for his back, hand, wrist, and ankles. Id.
Plaintiff stated that the pain medication did not provide much relief. Id. Plaintiff testified that he
has tried using a heating pad for his pain, but it was ineffective. Id.
Plaintiff testified that he cries “all the time.” (Tr. 47) Plaintiff stated that he does not get
along well with people. Id. Plaintiff testified that he was harassed by the police when he was
taking a walk, which caused him to break down and cry. (Tr. 48.)
Plaintiff stated that he has been involved in verbal and physical altercations with
co-workers or bosses in the past. Id. Plaintiff testified that he was terminated from his last
position because he was unable to perform the job. (Tr. 49) Plaintiff stated that he had been
working at the position for four years but he would frequently forget how to do the job. Id.
Plaintiff testified that his supervisor criticized him and called him names due to his inability to
4 

perform the job. Id.
Plaintiff testified that he often forgets things people tell him (Tr. 50); he has difficulty
paying attention to television programs; and he does not want to leave his house because he is
paranoid of being around people, especially police and fears he will be put in jail (Tr. 51).
Plaintiff testified that he goes days without taking a shower, because he lacks the energy to
bathe and his mother reminds him to bathe. (Tr. 52.) He only leaves the house to go to medical
appointments. Id. Plaintiff stated that his mother also asks him to do household chores, but he
does not do much around the house. Id.
Plaintiff testified that he has numbness and tingling in his heels and ankles, which has been
occurring since he was working. (Tr. 53) Plaintiff testified that he is able to stand for about
thirty minutes to one hour before he has to sit down. Id.
Plaintiff stated that he is able to sit for thirty minutes to one hour. (Tr. 54.) He stated that
walking does not bother him as much as standing still. Id. Plaintiff stated that he is able to lift a
gallon of milk and he occasionally drops things. (Tr. 55.)
Plaintiff stated that he has had suicidal thoughts. Id. He stays in the basement all day and
sleeps on the couch in the basement. Id. There is a television in the basement, but Plaintiff does
not watch much television. (Tr. 55-56.) Plaintiff stated that he gets upset when he thinks about
his life and he yells and occasionally throws things. (Tr. 56.)
Plaintiff testified that he became upset when his last supervisor told him he was not
performing his job properly. (Tr. 57.) Plaintiff stated that he has walked off the job site when he
was upset with his supervisor. Id.
Vocational Expert (VE) Brenda Young testified next and the ALJ asked her to assume a
hypothetical claimant with Plaintiff’s background and the following limitations: able to lift and
5 

carry twenty pounds occasionally and ten pounds frequently; stand or walk for six hours out of
eight; sit for six hours out of eight; should not perform work involving direct contact with food
products; able to understand, remember, and carry out at least simple instructions and non-detailed
tasks; can respond appropriately to supervisors and coworkers in a task-oriented setting; casual
and infrequent contact with others; should not work in a setting that includes constant or regular
contact with the general public; and should not perform work that involves more than infrequent
handling of customer complaints. (Tr. 58.) The VE testified that the hypothetical claimant could
only perform the packer position at the bakery. (Tr. 59.) The VE stated that the individual could
perform other light, unskilled work, such as assembly work (150,000 positions nationally, 15,000
locally); and housekeeping/janitorial work (888,000 positions nationally, 9,500 locally). (Tr.
59-60.)
Plaintiff’s attorney asked the VE to assume the hypothetical claimant was limited to no
contact with the public, no contact with co-workers, and only occasional contact with supervisors.
(Tr. 60.) The VE testified that some casual contact with co-workers is required in all the positions
she mentioned, although the janitorial job is more solitary than the others. Id.
Plaintiff’s attorney asked the VE to assume a hypothetical claimant who was limited to no
public contact, no co-worker contact, and less than occasional contact with supervisors. (Tr.
60-61.) The VE testified that the janitorial job would still be appropriate. (Tr. 61.) The VE
stated that the janitorial position requires contact with a supervisor approximately four times a day.
Id.
Finally, the VE testified that an individual who would miss two days of work a month or
who was off task twenty percent of the time would be unable to perform any jobs. Id.

6 

B.

Relevant Medical Records
Plaintiff saw Inna Park, M.D., for a consultative internal medicine examination at the

request of the state agency on February 10, 2011. (Tr. 204-210.) Plaintiff complained of
hepatitis C, which resulted in decreased energy, back pain, and hand problems. (Tr. 204-05.)
Upon examination, Plaintiff was cooperative, alert, and “physically comfortable.” (Tr. 205.)
Dr. Park’s general notes about Plaintiff, included that: he had good knowledge of his medical
issues and good hygiene; he was obese; his affect was anxious, with some tremor in his hands; and
he had difficulty relaxing for the physical exam. Id. Tenderness was noted along the lumbar
spine itself and some tenderness was noted in the paraspinal muscles of the upper lumbar and
lower thoracic regions. (Tr. 206.) Plaintiff’s range of motion was preserved. Id. Plaintiff was
able to get on and off the exam table independently, sit up from the lying position independently,
toe and heel walk without difficulty, squat to the floor and recover independently without
complaint, and his gait and station were normal. Id. Plaintiff’s neurological examination was
normal. Id. Dr. Park diagnosed Plaintiff with hepatitis C, with no physical manifestations of
chronic liver disease; mechanical low back pain; and posttraumatic right wrist and hand, with
arthralgias. (Tr. 206-07.)
Plaintiff saw L. Lynn Mades, Ph.D., for a consultative psychological evaluation at the
request of the state agency on February 10, 2011. (Tr. 213-18.) Plaintiff complained of
depression, memory problems, lack of energy, and paranoia regarding police. (Tr. 213.)
Plaintiff reported a history of losing jobs due to arguing and fighting with people and took special
education classes in school for a behavioral disorder. Id. Plaintiff initially stated that his last use
of alcohol was years prior to the examination, but later admitted that he had consumed 24 ounces
of beer just days prior. (Tr. 214.) Plaintiff reported that he had used marijuana “a couple of
7 

years” prior to the examination, and had used IV drugs, uppers, downers, and cocaine in the more
distant past. Id. Upon examination, Plaintiff’s mood was mildly anxious and depressed, and his
affect was slightly restricted, tearful at times, and generally appropriate. (Tr. 216.) Plaintiff
claimed to hear voices, but his report was “atypical and equivocal, and there was no behavioral
evidence of any thought disturbance.” Id. Plaintiff’s insight and judgment were “slightly
limited.” Id. Dr. Mades diagnosed Plaintiff with depressive disorder NOS; anxiety disorder
NOS; alcohol abuse; polysubstance dependence; personality disorder NOS with antisocial traits,
rule out antisocial personality disorder; and a GAF score4 of 65.5 (Tr. 217.) Dr. Mades stated
that Plaintiff was an unreliable informant regarding substance use, and it is not known to what
extent this contributes to his reported mood problems. Id. Dr. Mades stated that there appears to
be a long-standing history of antisocial behavior, and Plaintiff tended to blame others and not take
responsibility for past actions during the evaluation. Id. Dr. Mades stated that there was
evidence of substance abuse, antisocial behavior, and mild to moderate mood impairment by
history and presentation. (Tr. 217-18.)
Keith L. Allen, Ph.D., a state agency psychologist, completed a Psychiatric Review
Technique on February 23, 2011. (Tr. 221-31.) Dr. Allen expressed the opinion that Plaintiff
suffered from mild depression, mild anxiety, and a personality disorder NOS, but did not have a
severe mental impairment. (Tr. 331)

4

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). 
5
A GAF score of 61 to 70 denotes “[s]ome mild symptoms (e.g., depressed mood and mild
insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional
truancy, or theft within the household), but generally functioning pretty well, has some meaningful
interpersonal relationships.” DSM-IV at 32.
8 

Plaintiff presented to South County Health Center on April 21, 2011, with complaints of
chronic active hepatitis, headache, swelling in the legs, night sweats, weakness, muscle pain,
trouble sleeping, and pain. (Tr. 286.)
Plaintiff returned to South County Health Center on April 28, 2011, for mental health
treatment. (Tr. 285.) Plaintiff complained of difficulty sleeping, mood swings, memory loss,
auditory hallucinations, and crying spells. Id. Plaintiff stated: “Sometimes I wish the Lord
would take me, but I could not commit suicide.” Id. Upon examination, Plaintiff’s mood was
severely depressed, and his affect was congruent with his mood. Id. Plaintiff reported that he
was open to receiving mental health services. Id.
Plaintiff presented to South County Health Center on June 7, 2011, for treatment of
hepatitis C and back problems. (Tr. 282.) Plaintiff also complained of right wrist pain, bilateral
heel pain, and depression. Id. Plaintiff was diagnosed with joint pain, and was advised to use ice
and take non-steroidal anti-inflammatory drugs. (Tr. 283.) Plaintiff was referred to psychiatry
for treatment of his depression. Id.
Plaintiff saw a social worker at South County Health Center on June 15, 2011, at which
time he complained of paranoia and suicidal ideation. (Tr. 281.) Plaintiff’s mood was described
as moderately depressed on examination, and his affect was congruent with his mood. Id.
Plaintiff presented to South County Health Center on July 8, 2011, with complaints of
chest pain and dyspnea. (Tr. 279.) Plaintiff was advised to visit the emergency department for
evaluation. Id.
Plaintiff presented to South County Health Center on August 8, 2011, for follow-up, at
which time he reported he was still having pain in his back and hand. (Tr. 276.) Plaintiff
indicated that he had gone to the emergency room for chest pain, and the work-up was negative.
9 

Id. Mild tenderness was noted on musculoskeletal examination. Id. Plaintiff was diagnosed
with joint pain, and was prescribed Tramadol6 and Naprosyn.7 (Tr. 277.) X-rays of the lumbar
spine were also ordered. Id.
Plaintiff presented to Surendra Chaganti, M.D., on August 9, 2011, for a psychiatric
examination. (Tr. 257-59.) Plaintiff reported difficulty paying attention and following
instructions, mood swings, problems with his temper, and paranoia. (Tr. 257.) Upon
examination, Plaintiff’s mood was anxious, hypo-manic, and depressed; his affect was anxious; he
reported auditory hallucinations and paranoid delusions; his energy was decreased; his attention
span and concentration were limited; his remote memory was intact; and his recent memory was
not intact. (Tr. 259.) Dr. Chaganti diagnosed Plaintiff with schizoaffective disorder8 and a
history of alcoholism, with a GAF score of 50.9 (Tr. 258.) Dr. Chaganti prescribed Zyprexa,10
Prozac,11 and Xanax.12 (Tr. 259.)
Plaintiff saw Dr. Chaganti for follow-up on August 23, 2011, at which time Plaintiff
reported paranoia and being “moody.” (Tr. 260.) Upon examination, Dr. Chaganti noted
Plaintiff was paranoid and his recent memory was impaired. Id.

6

Tramadol is indicated for the management of moderate to moderately severe chronic pain in
adults who require around-the-clock treatment of their pain for an extended period of time. See
Physician’s Desk Reference (“PDR”), 2429 (63rd Ed. 2009).
7
Naprosyn is a non-steroidal anti-inflammatory drug indicated for the treatment of osteoarthritis.
See PDR at 2874-75.
8
An illness manifested by an enduring major depressive, manic, or mixed episode along with
delusions, hallucinations, disorganized speech and behavior, and negative symptoms of
schizophrenia. Stedman’s at 570.
9
A GAF score of 41 to 50 indicates “serious symptoms” or “any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).” DSM-IV at 32.
10
Zyprexa is a psychotropic drug indicated for the treatment of schizophrenia and bipolar
disorder, and agitation associated with schizophrenia and bipolar I mania. See PDR at 1884-85. 
11
Prozac is indicated for the treatment of major depressive disorder. PDR at 1854.
12
Xanax is indicated for the treatment of anxiety and panic disorders. See WebMD,
http://www.webmd.com/drugs (last visited September 10, 2014).
10 

Plaintiff presented to Dr. Sharma at John C. Murphy Clinic on September 9, 2011. (Tr.
296.) Dr. Sharma noted that Plaintiff had been seen at the clinic for an initial evaluation the
month prior, at which time he was started on Zoloft.13 Id. Plaintiff reported depression, lack of
energy, impaired memory, and difficulty concentrating. Id. Upon mental status examination,
Plaintiff looked distressed and his insight and judgment were fair. Id. Dr. Sharma diagnosed
Plaintiff with major depressive disorder and increased Plaintiff’s dosage of Zoloft. Id.
On September 20, 2011, Dr. Chaganti noted Plaintiff was hyperactive, hyper talkative,
paranoid, and his attention was poor. (Tr. 261.) Dr. Chaganti increased Plaintiff’s Xanax and
Prozac. Id.
Plaintiff presented to South County Health Center on October 5, 2011, at which time he
reported back, wrist, and knee pain. (Tr. 273.) Upon examination, Plaintiff’s gait was normal
and a small amount of swelling was noted in both arms. Id. Plaintiff was prescribed Tramadol
and was referred to orthopedics for his joint pain. Id.
Plaintiff saw Dr. Chaganti on October 18, 2011, at which time Plaintiff reported multiple
family problems. (Tr. 262.) Plaintiff felt anxious and depressed, and his sleep was poor.
Plaintiff reported experiencing visual hallucinations with Prozac. Id. Upon examination,
Plaintiff was depressed, anxious, and paranoid. Id. Dr. Chaganti continued Plaintiff’s Xanax
and Zyprexa, discontinued the Prozac, and prescribed Wellbutrin14 and Seroquel. Id. On
November 15, 2011, Plaintiff reported problems with memory loss. (Tr. 263.) Upon
examination, Plaintiff’s affect was flat, his attention and concentration were “distractible.” Id.
Dr. Chaganti increased Plaintiff’s dosage of Seroquel. Id. On December 13, 2011, Plaintiff

13

Zoloft is indicated for the treatment of depression. See WebMD,
http://www.webmd.com/drugs (last visited September 10, 2014).
14
Wellbutrin is indicated for the treatment of major depressive disorder. See PDR at 1649.
11 

reported feeling moody, anxious, and paranoid. (Tr. 264.) On examination, Plaintiff’s affect
was anxious, he was paranoid, his attention was fair, and he was distractible. Id. Dr. Chaganti
increased Plaintiff’s dosages of medication. Id.
Plaintiff saw Dr. Sharma on December 16, 2011, for follow-up, at which time he reported
he felt depressed and he had stopped taking his Zoloft one month prior because it was not working.
(Tr. 295.) Plaintiff reported that he had never been on psychotropic medications in the past. Id.
Upon examination, Plaintiff was talkative and cooperative, his affect was anxious and distressed,
and his insight and judgment were fair. Id. Dr. Sharma restarted Plaintiff on Zoloft. Id.
Plaintiff saw Dr. Chaganti on January 10, 2012, at which time Plaintiff reported feeling
depressed and having low energy. (Tr. 265.) Plaintiff’s affect was anxious, his mood was “not
good,” his attention was fair, and he was distractible. Id. Dr. Chaganti adjusted Plaintiff’s
medications. Id.
Plaintiff saw Dr. Sharma on January 13, 2012, at which time he reported feeling depressed.
(Tr. 294.) Dr. Sharma increased Plaintiff’s dosage of Zoloft. Id.
Plaintiff presented to South County Health Center for follow-up on February 6, 2012. (Tr.
271-72.) Plaintiff complained of heartburn, depression, and joint pain. (Tr. 271.) Plaintiff
reported that his medications were not working. Id. Plaintiff was advised to discuss an increase
in his medication with his psychiatrist. (Tr. 272.)
Plaintiff saw Dr. Chaganti on February 7, 2012, and March 6, 2012. (Tr. 266-67.)
Plaintiff continued to report symptoms of moodiness, anxiety, paranoia, difficulty sleeping,
difficulty concentrating, and impaired memory. Id. Dr. Chaganti adjusted Plaintiff’s
medications. Id.
On March 30, 2012, Plaintiff returned to Dr. Sharma for follow-up. (Tr. 293.) Plaintiff
12 

reported that he had stopped taking the Zoloft one month prior as it was not working. Id.
Plaintiff complained of moodiness and anger. Id. Dr. Sharma prescribed Celexa.15 Id.
Plaintiff presented to Dr. Chaganti on April 3, 2012, at which time he reported feeling
moody, anxious, and paranoid; and hearing voices. (Tr. 268.) Upon examination, Plaintiff was
anxious and paranoid, and his concentration and recent memory were decreased. Id.
Evidence Submitted to the Appeals Council
Dr. Chaganti completed a Mental Residual Functional Capacity Questionnaire on August
21, 2012. (Tr. 297-301.) Dr. Chaganti indicated that Plaintiff’s diagnosis was schizoaffective
disorder mixed, with a current GAF score of 50. (Tr. 297.) Plaintiff’s medications were
Seroquel, Luvox,16 and Xanax. Id. The clinical findings noted by Dr. Chaganti included
increased psychomotor activity, flight of ideas, paranoia, and anxiety. Id. Dr. Chaganti
identified the following signs and symptoms: appetite disturbance with weight change,
generalized persistent anxiety, mood disturbance, difficulty thinking or concentrating, paranoid
thinking, recurrent obsessions of compulsions which are a source of marked distress, persistent
irrational fear of a specific object or activity which results in a compelling desire to avoid the
object or activity, perceptual or thinking disturbances, motor tension, pressures of speech, easy
distractibility, and oddities of thought, perception, speech or behavior. (Tr. 298.) Dr. Chaganti
expressed the opinion that Plaintiff was seriously limited but not precluded in the following mental
abilities: maintain attention for two-hour segments, work in coordination with or proximity to
others without being unduly distracted, complete a normal workday and work week without
interruptions from psychologically based symptoms, perform at a consistent pace without an

15

Celexa is an antidepressant drug indicated for the treatment of depression. See PDR at 1161.
Luvox is an antidepressant drug indicated for the treatment of social anxiety disorder. See
PDR at 1760.
16

13 

unreasonable number and length of rest episodes, accept instructions and respond appropriately to
criticism from supervisors, get along with co-workers or peers without unduly distracting them or
exhibiting behavioral extremes, respond appropriately to changes in a routine work setting,
understand and remember detailed instructions, and carry out detailed instructions. (Tr.
299-300.) As support for these findings, Dr. Chaganti noted that Plaintiff is paranoid, has
decreased concentration, is distractible, and has impaired recent memory. Id. Dr. Chaganti
anticipated that Plaintiff would be absent from work due to his impairments three days a month.
(Tr. 301.) Finally, Dr. Chaganti indicated that the earliest date the above limitations applied was
“2011.” Id.
The ALJ=s Determination
The ALJ made the following findings:
1.

The claimant meets the insured status requirements of the Social Security Act
through December 31, 2013.

2.

The claimant has not engaged in substantial gainful activity since April 21, 2011,
the amended alleged onset date of disability (20 CFR 404.1571 et seq., and 416.971
et seq.).

3.

The claimant has the following severe impairments: hepatitis C; obesity; major
depressive disorder, alternately diagnosed as depressive disorder not elsewhere
classified (“NEC”) or not otherwise specified (“NOS”); anxiety disorder NOS;
schizoaffective disorder; and personality disorder NOS with anti-social traits (20
CFR 404.1520(c) and 416.920(c)).

4.

The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).

5.

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work (lifting and
carrying 20 pounds occasionally and ten pounds frequently; sitting at least six
hours out of eight; and standing/walking at least six hours out of eight) as defined in
20 CFR 404.1567(b) and 416.967(b), with the following additional limitations: he
14 

cannot perform work involving direct contact with food products; can understand,
remember, and carry out at least simple instructions and non-detailed tasks; can
respond appropriately to supervisors and coworkers in a task-oriented setting where
contact with others is casual and infrequent; should not work in a setting which
includes constant or regular contact with the general public and should not perform
work which includes more than infrequent handling of customer complaints.
6.

The claimant is capable of performing past relevant work as a packer (DOT
#920.587-018). This work does not require the performance of work-related
activities precluded by the claimant’s residual functional capacity (20 CFR
404.1565 and 416.965).

7.

The claimant has not been under a disability, as defined in the Social Security Act,
from April 21, 2011, through the date of this decision (20 CFR 404.1520(f) and
416.920(f)).

(Tr. 13-27.)
The ALJ=s final decision reads as follows:
Based on the application for a period of disability and disability insurance benefits
protectively filed on September 24, 2010, the claimant is not disabled under
sections 216(i) and 223(d) of the Social Security Act.
Based on the application for supplemental security income protectively filed on
September 24, 2010, the claimant is not disabled under section 1614(a)(3)(A) of the
Social Security Act.
(Tr. 27.)
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
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
15 

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. ''
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),
16 

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
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,
17 

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).
C.

Plaintiff=s Claims
Plaintiff argues that the ALJ erred in weighing the medical evidence. Plaintiff next argues

that the ALJ erred in determining Plaintiff’s RFC. The undersigned will discuss Plaintiff’s claims
in turn.
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The ALJ made the following determination with regard to plaintiff=s RFC:
After careful consideration of the entire record, the undersigned finds that the claimant has
the residual functional capacity to perform light work (lifting and carrying 20 pounds
occasionally and ten pounds frequently; sitting at least six hours out of eight; and
standing/walking at least six hours out of eight) as defined in 20 CFR 404.1567(b) and
416.967(b), with the following additional limitations: he cannot perform work involving
direct contact with food products; can understand, remember, and carry out at least simple
instructions and non-detailed tasks; can respond appropriately to supervisors and
coworkers in a task-oriented setting where contact with others is casual and infrequent;
should not work in a setting which includes constant or regular contact with the general
public and should not perform work which includes more than infrequent handling of
customer complaints.
(Tr. 19.)
RFC is what a claimant can do despite his 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. See Lauer v. Apfel, 245 F.3d 700, 704
(8th Cir. 2001); Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000). 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. Barnhart,
471 F.3d 902, 907 (8th Cir. 2006).
As an initial matter, the undersigned notes that Plaintiff does not directly challenge the
ALJ’s determination with regard to Plaintiff’s physical RFC.
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The ALJ found that Plaintiff was

capable of performing a range of light work.

(Tr. 19.)

The record supports this finding, and

Plaintiff has failed to introduce any evidence or argument supporting the presence of greater
physical limitations.
Plaintiff first argues that the ALJ erred in weighing the medical opinion evidence when
determining Plaintiff’s mental RFC. Specifically, Plaintiff contends that the ALJ gave little
weight to the opinion of the non-examining state agency psychologist, but did not indicate the
evidence upon which he was relying.

Plaintiff also argues that reversal is required because the

ALJ did not have the opportunity to address Dr. Chaganti’s findings, as they were submitted
after the ALJ’s decision.
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). 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. Id. “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.’”

Tilley v. Astrue, 580 F.3d 675, 679 (8th Cir. 2009) (quoting 20

C.F.R. § 404.1527(d)(2)).

However, “[w]hen a treating physician’s opinions are inconsistent or

contrary to the medical evidence as a whole, they are entitled to less weight.” Halverson v.
Astrue, 600 F.3d 922, 929-30 (8th Cir. 2010) (internal quotation marks omitted).

The opinion

of a consulting physician, who examines a claimant once, or not at all, generally receives very
little weight. Singh, 222 F.3d at 452. 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).

Under the regulations, the ALJ “will always give good reasons . . . for the
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weight [he or she] give[s] [a claimant’s] treating source opinion.” 20 C.F.R. § 404.1527(c)(2).
In determining Plaintiff’s mental RFC, the ALJ discussed the findings of consultative
psychologist Dr. Mades.

(Tr. 21.) Plaintiff saw Dr. Mades for a one-time consultative

psychological evaluation on February 10, 2011. (Tr. 213-18.)

The ALJ noted that, although

Plaintiff reported auditory hallucinations, Dr. Mades found Plaintiff’s report was atypical and
equivocal, and that he exhibited no behavioral evidence of hallucinations or other thought
disturbance.

(Tr. 21, 216.)

The ALJ pointed out that Dr. Mades assessed a GAF score of 65,

which is indicative of mild symptoms and limitations.

(Tr. 21, 217.)

The ALJ next stated that treatment notes of Drs. Chaganti and Sharma indicate that
Plaintiff has had normal speech, eye contact, and psychomotor activity; fair attention; no
delusions or suicidal/homicidal ideation; appropriate and cooperative behavior; and few
complaints of difficulty interacting with others.

(Tr. 21.) The ALJ acknowledged that Dr.

Chaganti assessed a GAF score of 50 on August 9, 2011, but stated that this GAF score was
given at the beginning of Plaintiff’s treatment prior to being prescribed any medications.
21, 258.)

(Tr.

The ALJ stated that Plaintiff subsequently demonstrated some improvement with

medications. (Tr. 21.)
With regard to the opinion evidence, the ALJ stated that he assigned “little weight” to the
opinion of Dr. Keith Allen, the state agency psychologist.

Dr. Allen expressed the opinion in

February of 2011 that Plaintiff’s mental impairments were non-severe. The ALJ properly noted
that Dr. Allen’s opinion was rendered prior to the amended alleged onset date of disability, and
does not consider the subsequently received psychiatric treatment notes.
Dr. Chaganti completed a Mental Residual Functional Capacity Questionnaire on August
21, 2012, subsequent to the ALJ’s decision. (Tr. 297-301.) Plaintiff submitted this evidence to
21 

the Appeals Council. (Tr. 4.) Dr. Chaganti expressed the opinion that Plaintiff was seriously
limited but not precluded in the following mental abilities: maintain attention for two-hour
segments, work in coordination with or proximity to others without being unduly distracted,
complete a normal workday and work week without interruptions from psychologically based
symptoms, perform at a consistent pace without an unreasonable number and length of rest
episodes, accept instructions and respond appropriately to criticism from supervisors, get along
with co-workers or peers without unduly distracting them or exhibiting behavioral extremes,
respond appropriately to changes in a routine work setting, understand and remember detailed
instructions, and carry out detailed instructions. (Tr. 299-300.) Dr. Chaganti also anticipated
that Plaintiff would be absent from work due to his impairments three days a month. (Tr. 301.)
Plaintiff contends that Dr. Chaganti’s opinion is entitled to great weight, yet the ALJ did not have
the opportunity to consider this evidence.
“An application for disability benefits remains in effect only until the issuance of a
‘hearing decision’ on that application.” Myers v. Colvin, 721 F.3d 521, 526 (8th Cir. 2013)
(citing 20 C.F.R. §§ 404.620(a), 416.330). New evidence submitted to the Appeals Council is
considered only to the extent it “relates to the period on or before the date of the [ALJ's] hearing
decision.” 20 C.F.R. §§ 404.970(b), 416.1470(b). When that decision is challenged in a
§ 405(g) action, the Court determines whether it is “supported by substantial evidence on the
record as a whole, including the new evidence.” Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir.
2007). “’To be new, evidence must be more than merely cumulative of other evidence in the
record.’” Perks v. Astrue, 687 F.3d 1086, 1093 (8th Cir. 2012) (quoting Bergmann v. Apfel, 207
F.3d 1065, 1069 (8th Cir. 2000)).
The undersigned finds that, when Dr. Chaganti’s opinion is considered, the ALJ’s mental
22 

RFC determination is not supported by substantial evidence on the record as a whole. Dr.
Chaganti’s opinion relates to the relevant period, as Dr. Chaganti indicated the limitations assessed
applied since 2011. (Tr. 301.) Dr. Chaganti provided support for her findings. Specifically,
Dr. Chaganti indicated that Plaintiff had been diagnosed with schizoaffective disorder mixed, with
a current GAF score of 50. (Tr. 297.) Plaintiff was taking the following medications: Seroquel,
Luvox, and Xanax. The clinical findings noted by Dr. Chaganti included increased psychomotor
activity, flight of ideas, paranoia, and anxiety. Dr. Chaganti identified the following signs and
symptoms: appetite disturbance with weight change, generalized persistent anxiety, mood
disturbance, difficulty thinking or concentrating, paranoid thinking, recurrent obsessions of
compulsions which are a source of marked distress, persistent irrational fear of a specific object or
activity which results in a compelling desire to avoid the object or activity, perceptual or thinking
disturbances, motor tension, pressures of speech, easy distractibility, and oddities of thought,
perception, speech or behavior. (Tr. 298.) Dr. Chaganti further noted that Plaintiff is paranoid,
has decreased concentration, is distractible, and has impaired recent memory.
Dr. Chaganti’s treatment notes lend support to her findings. The record reveals that
Plaintiff saw Dr. Chaganti approximately monthly for psychiatric treatment for a one-year period
beginning in August 2011. (Tr. 257-68.) Plaintiff consistently reported complaints of mood
swings, low energy, difficulty paying attention, paranoia, and impaired memory. Upon
examination, Dr. Chaganti repeatedly noted anxious mood and affect, decreased attention and
concentration, impaired memory, and paranoia. Dr. Chaganti assessed a GAF score of 50, which
is indicative of severe symptoms. Dr. Chaganti also prescribed multiple psychotropic drugs to
treat Plaintiff’s symptoms.
The ALJ found that Plaintiff demonstrated some improvement with medications. (Tr.
23 

21.)

The record, however, does not support this finding.

The treatment notes of Drs. Chaganti

and Sharma indicate that Plaintiff continued to experience significant symptomatology, even
with medication.

Dr. Chaganti’s August 2012 opinion underscores the fact that, despite

treatment, Plaintiff had serious limitations resulting from his mental impairments.
Conclusion
In sum, the mental RFC formulated by the ALJ is not supported by substantial evidence
on the record as a whole.

The only opinion evidence available to the ALJ was the opinion of the

non-examining state agency psychologist rendered prior to Plaintiff’s alleged onset of disability
date; and the opinion of the one-time consultative examiner was also rendered prior to Plaintiff’s
alleged onset of disability date. Dr. Chaganti was Plaintiff’s treating psychiatrist and saw
Plaintiff regularly since August 2011. As such, Dr. Chaganti’s August 2012 opinion, which was
not completed until a few months after the hearing before the ALJ, was entitled to significant
weight, provided it was not inconsistent with the record. Dr. Chaganti found limitations more
severe than those found by the ALJ.
For these reasons, this cause will be reversed and remanded to the ALJ in order for the ALJ
to consider the relevant new 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 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 24th day of September, 2014.
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