Plass v. Colvin

Filing 25

MEMORANDUM AND ORDER re: 22 SOCIAL SECURITY CROSS BRIEF re 15 SOCIAL SECURITY BRIEF re 1 Complaint (Social Security), 12 Transcript of certified administrative hearing, 11 Answer to Complaint filed by Defendant Carolyn W. Colvin, [15 ] SOCIAL SECURITY BRIEF re 1 Complaint (Social Security), 12 Transcript of certified administrative hearing, 11 Answer to Complaint filed by Plaintiff Priscilla Plass. For these reasons, this cause will be reversed and remanded to the AL J in order for the ALJ to consider the relevant new evidence; formulate a new 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. Signed by Magistrate Judge Abbie Crites-Leoni on 9/30/14. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PRISCILLA PLASS,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:13CV1023 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 Priscilla Plass 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. 15] Defendant filed a Brief in Support of the Answer.
[Doc. 22]
Procedural History
On June 5, 2012, Plaintiff filed applications for Disability Insurance Benefits and
Supplemental Security Income, claiming that she became unable to work due to her disabling
condition on August 5, 2011. (Tr. 158-165.) These claims were denied initially. (Tr. 92-96)
Following an administrative hearing, Plaintiff=s claims were denied in a written opinion by an
Administrative Law Judge (ALJ), dated February 22, 2013. (Tr. 11-22.) The 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 March 29, 2013. (Tr. 5, 1-4.) 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 February 4, 2013. (Tr. 29.) Plaintiff was

present and represented by counsel. Id. Also present was vocational expert James Israel. Id.
Plaintiff’s attorney made an opening statement, in which he argued that Plaintiff suffers
from bipolar effective disorder, personality disorder, and anxiety, which prevent her from
sustaining the mental demands of work on an ongoing basis. (Tr. 32.)
The ALJ questioned Plaintiff, who testified that she was thirty years of age. Id. Plaintiff
stated that she was single and did not have any children. (Tr. 33.)
Plaintiff testified that she had recently received an eviction notice due to failure to pay rent,
but that her landlord agreed to allow her additional time to move after learning her administrative
hearing had been moved up. Id.
Plaintiff has a valid driver’s license, but she does not drive unless she has to because she
experiences anxiety and difficulty focusing when driving; she drives once or twice a week. (Tr.
34.)

Plaintiff testified that she drove herself to the hearing and it was “a little rough.” (Tr. 35.)
Plaintiff stated that she graduated from high school and obtained a cosmetology license. Id.
Plaintiff testified that, since August of 2011, she worked at Steak and Shake for about three

days; Jack in the Box for four to five weeks; and Hardy’s for about one month. (Tr. 36.)
Plaintiff explained that she had to keep a normal schedule at these positions, because too much
fluctuation affected her sleep and her medication schedule. Id.

2

Plaintiff testified that she had been receiving Missouri Medicaid benefits for three to four
years. (Tr. 37.)
Plaintiff stated that she worked as a stylist at a Great Clips on a couple occasions. Id.
Plaintiff testified that the positions ended due to her mental impairments. Id. Plaintiff stated that
her psychiatrist requested that her employer allow her to keep a more regular schedule, but her
employer did not honor that request. Id. Plaintiff stated that she also had difficulty dealing with
the public. Id. Plaintiff testified that her manager eventually told her that she should pursue
other work not requiring interaction with the public. (Tr. 38.)
Plaintiff stated that she worked nights as a cook at Steak and Shake. Id. Plaintiff testified
that she thought the night shift would be easier due to less people being around, but it ended up
being more difficult for her. Id.
Plaintiff stated that she worked as a server at O’Charley’s. (Tr. 39.) Plaintiff testified
that she had to take leaves of absences from this position due to medical problems and an inability
to work while taking certain medications. Id. When she returned from medical leave, Plaintiff
was terminated; her supervisor told her she was too unstable to work. (Tr. 40.)
Plaintiff testified that she would be unable to perform any of her past work at the time of
the hearing due to her anxiety, mood changes, and inability to interact with people. Id. Plaintiff
stated that she had to take frequent breaks at her past positions to maintain her composure, and she
occasionally had to leave the job site. Id.
Plaintiff’s attorney next questioned Plaintiff, who testified that she experiences episodes of
anxiety or panic attacks approximately four times a day for periods ranging from twenty minutes to
three to four hours. (Tr. 41.) Plaintiff stated that she has to lie down and rest after experiencing

3

an episode. Id.
Plaintiff testified that she does not bathe daily. (Tr. 42.) According to Plaintiff, she
sometimes bathes only once a week, because it is a “hard task” to get in the shower. Id.
Plaintiff testified that she has crying spells up to four times a day, which last between thirty
minutes and a “couple hours.” Id.
Plaintiff stated that she is frequently distracted due to her anxiety; she constantly checks
things, such as checking the creases in towels and checking to make sure she flushes the toilet.
(Tr. 43.)
Plaintiff testified that she went to St. Anthony’s in August of 2012, because she
experienced a severe anxiety attack. Id. Plaintiff stated that the Klonopin1 she takes
occasionally works, and sometimes it is ineffective. Id. Plaintiff testified that she went to the
hospital, because she was experiencing a panic attack along with the “rushing thoughts” of a “high
mood.” Id. Plaintiff described her “rushing thoughts” as making her unable to sit down or get a
“clear head,” because she is thinking too much. (Tr. 44.) She indicated they occur
approximately twice a week and can last for hours unless she goes to the hospital. Id.
Plaintiff stated that she would like to undergo trans-cranial magnetic stimulation
(“TMS”),2 which is a new procedure similar to electroconvulsive therapy (“ECT”),3 but less

1

Klonopin is indicated for the treatment of panic disorder. Physician’s Desk Reference (PDR),
2639 (63rd Ed. 2009).
2
TMS uses a magnet (instead of the electrical current used in electroconvulsive therapy) to
activate the brain to treat depression, psychosis, and other disorders. Clinical trials studying the
effectiveness of TMS revealed mixed results. In 2008, it was approved for use by the FDA as a
treatment for major depression for patients who have not responded to at least one antidepressant
medication. A recent study found that most side effects were mild or moderate, although
long-term side effects are unknown. National Institute of Mental Health, http://www.nimh.
nih.gov/health/topics/brain-stimulation-tl (last visited September 23, 2014).
3
ECT involves placing electrodes at precise locations on the head while a patient is sedated with
4

invasive and involving no permanent side effects. Id. Plaintiff testified that Medicaid will not
pay for TMS, but she is in the process of appealing this decision. (Tr. 45.) Plaintiff stated that
Medicaid would pay for ECT even though it is much more expensive than TMS therapy. Id.
Plaintiff testified that her psychiatrist, Dr. Steve Stromsdorfer, recommended TMS in October of
2012 because she had tried many medications and they had been ineffective. Id.
The ALJ next examined the Vocational Expert (VE), who testified that Plaintiff’s past fast
food work is classified as unskilled and light, although Plaintiff’s testimony suggests she did some
medium lifting at the positions. (Tr. 46.) Mr. Israel stated that Plaintiff’s work as a server is
classified as semi-skilled and light; and her work as a cosmetologist is classified as skilled and
light. (Tr. 47.)
The ALJ asked the VE to assume a hypothetical claimant with Plaintiff’s background and
the following limitations: occupations that involve only simple, routine, and repetitive tasks in a
low-stress job; only occasional decision-making required and occasional changes in the work
setting; occasional judgment required on the job; no interaction with the public; only casual and
infrequent interaction with co-workers; and contact with supervisory staff concerning work duties
occurring no more than four times per workday when work duties are being performed up to
expectations. (Tr. 48.) The VE testified that the claimant would be unable to perform any of
Plaintiff’s past work. Id. The VE stated that the individual would be capable of performing
other jobs, such as assembler (3,100 positions in Missouri); bulk packer (1,700 positions in
Missouri); and product inspector (1,150 positions in Missouri). (Tr. 49.)

general anesthesia. Through the electrodes, an electric current passes through the brain, causing a
seizure that lasts generally less than one minute. ECT was first developed in 1938, and had a poor
reputation for many years, but the procedure has improved significantly since its initial use.
National Institute of Mental Health, http://www.nimh.nih.gov/health/topics/brain-stimulation-tl
(last visited September 23, 2014).
5

The ALJ next asked the VE to assume a hypothetical individual who needed contact with
supervisory staff to be limited to no more than three times per workday. (Tr. 50.) The VE
testified that this restriction would not affect the individual’s ability to perform the jobs he listed.
Id.
The ALJ asked the VE to assume a hypothetical individual who was limited to occupations
where production quotas are based on end of the workday measurements only. Id. The VE
testified that, of the positions he named, approximately 75 percent base production quotas on end
of workday measurements. Id.
The VE testified that employers customarily tolerate no more than one unexcused absence
per month. (Tr. 52.)
Plaintiff’s attorney examined the VE, who testified that an individual who missed twenty
percent of the workday due to unscheduled breaks, panic attacks, or crying spells, would not be
capable of retaining a job. (Tr. 52-53.)
B.

Relevant Medical Records
Plaintiff presented to therapist Peggy DeGroot, MA, LPC, at Comtrea, for an Initial

Assessment on September 21, 2010. (Tr. 343-345.) Plaintiff reported that she had been
diagnosed with bipolar disorder and anxiety, and had received treatment at Comtrea in the past.
(Tr. 343.) Plaintiff was not comfortable with her current psychiatrist, and wished to resume
treatment at Comtrea. Id. Plaintiff complained of mood swings and anxiety. Id. Upon
examination, Plaintiff’s mood was depressed and anxious; and her affect was sad and depressed.
Id. Ms. DeGroot diagnosed Plaintiff with bipolar disorder, and generalized anxiety disorder; and

6

assessed a GAF score4 of 54.5 (Tr. 345.) Ms. DeGroot referred Plaintiff to a psychiatrist. Id.
Plaintiff presented to psychiatrist Steve C. Stromsdorfer, M.D., on October 14, 2010, to
resume psychiatric care. (Tr. 308.) Plaintiff had been receiving psychiatric care for ten years,
but had to change psychiatrists when she started receiving Medicaid benefits. Id. Plaintiff
reported mood swings with emphasis on prominent irritability, erratic sleep, variable energy,
racing thoughts, and much conflict with relatives. Id. Plaintiff was taking Paxil,6 Trileptal,7
and Klonopin. Id. Plaintiff reported a history of depression and mood swings since the age of
eighteen, and use of multiple psychotropic medications. Id. Plaintiff was working at Great Clips
and reported no particular difficulty with doing her job, although she had lost jobs in the past due
to her mood lability. (Tr. 309.) Upon mental status examination, Plaintiff’s flow of thought was
logical; her mood was depressed, rated as a four to five on a scale of one to ten; her anxiety level
was rated as a nine; her affect was described as mildly depressed and slightly anxious without
lability; and her concentration and memory were fair. Id. Dr. Stromsdorfer diagnosed Plaintiff
with bipolar I disorder,8 most recently depressed phase; with a current GAF score of 60. (Tr.
308.) Dr. Stromsdorfer decreased Plaintiff’s dosage of Paxil as it was not effective, and started

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 51-60 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.
6
Paxil is an antidepressant indicated for the treatment of major depressive disorder, panic
disorder, and generalized anxiety disorder. See PDR at 1536-37.
7
Trileptal is indicated for the treatment of seizure disorders. See WebMD, http://www.webmd.
com/ drugs (last visited September 23, 2014).
8
An affective disorder characterized by the occurrence of alternating (e.g., mixed, manic, and
major depressive episodes. Stedman=s Medical Dictionary, 568 (28th Ed. 2006).
7

her on Zoloft.9 (Tr. 309.)
Plaintiff saw Dr. Stromsdorfer approximately monthly, at which time he adjusted
Plaintiff’s medications. On December 16, 2010, Plaintiff’s anxiety was “very high.” (Tr. 306.)
Dr. Stromsdorfer assessed a GAF score of 55, and adjusted Plaintiff’s medications. Id.
Plaintiff’s mood continued to be “disturbed” on December 27, 2010, and January 17, 2011. (Tr.
305, 304.)
Plaintiff saw Ms. DeGroot on January 17, 2011, to formulate a treatment plan. (Tr. 334.)
Ms. DeGroot recommended that Plaintiff continue with supportive case management every four to
eight weeks as needed. Id.
Plaintiff presented to Dr. Stromsdorfer on February 7, 2011, at which time her mood was
somewhat better, but her anxiety remained high. (Tr. 303.) Plaintiff had difficulty
accomplishing tasks if her workload exceeded 25 hours, and she had obsessional thoughts about
being perfect on her tasks. Id. Dr. Stromsdorfer assessed a GAF score of 60. Id. On April 18,
2011, Plaintiff’s depression and anxiety were “doing poorly.” (Tr. 301.) Plaintiff was having
crying spells, and significant conflict was occurring within her marriage. Id. On May 9, 2011,
Plaintiff continued to experience distress. (Tr. 300.) The frequent changes in the shifts she
worked were interfering with her sleep, and her focus was off. Id. Dr. Stromsdorfer advised
Plaintiff to obtain a set work schedule, and indicated that he would provide support for her
employer. Id. Plaintiff’s anxiety and depression were high on June 9, 2011. (Tr. 299.)
Plaintiff reported that her nephew died accidentally of uncertain causes, her mother was doing very
poorly, and her work schedule was demanding. Id. On June 30, 2011, Plaintiff’s depression and

9

Zoloft is indicated for the treatment of depression. See WebMD, http://www.webmd.com/
drugs (last visited September 23, 2014).
8

anxiety were “somewhat better” since increasing her dosage of Paxil. (Tr. 297.)
Plaintiff presented to Dr. Stromsdorfer on July 28, 2011, at which time she reported her
anxiety had been “very bad,” which had caused her to leave work at times as well as present to an
urgent care center for treatment. (Tr. 296.) Upon examination, Plaintiff was very depressed,
anxious, and tearful at times, with lability “somewhat evident.” Id. Plaintiff’s focus was
“somewhat impaired,” and her memory was fair. Id. Dr. Stromsdorfer diagnosed Plaintiff with
bipolar I disorder, and personality disorder not otherwise specified (histrionic and
passive-aggressive traits); and assessed a GAF score of 50.10 Id. Dr. Stromsdorfer adjusted
Plaintiff’s medications, and advised her to take a leave of absence from work. Id.
Plaintiff saw Whitney Connor, M.A., at Comtrea on July 28, 2011. (Tr. 332.) Plaintiff
was upset and confused about paperwork Dr. Stromsdorfer asked her to complete for her
employer. Id. Plaintiff was tearful, extremely angry, and had limited affect control. Id.
Plaintiff was concerned about losing her job due to needing time off to handle her medication
transition. Id. Ms. Connor explained the paperwork to Plaintiff, and Plaintiff was receptive.
Id.
On September 8, 2011, Dr. Stromsdorfer noted that Plaintiff’s depression and anxiety
continued. (Tr. 295.) Plaintiff reported that she was no longer working. Id. Plaintiff had not
started Effexor,11 which was prescribed at her last visit, because she had concerns about possible
side effects. Upon examination, Plaintiff’ depression and anxiety were “high severity.” Id.
Plaintiff’s affect was depressed and very tense, consistent with her mood; Plaintiff’s focus was

10

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.
11
Effexor is an antidepressant drug indicated for the treatment of major depressive disorder and
generalized anxiety disorder. See PDR at 3195-96.
9

decreased, and her memory was impaired. Id. Dr. Stromsdorfer’s diagnosis remained
unchanged. Id. He stated that, overall, dysphoria persisted without improvement. Id. Dr.
Stromsdorfer confronted Plaintiff about her “significant ambivalence to utilizing antidepressants.”
Id. He prescribed Celexa,12 Trileptal, Klonopin, and Paxil. Id.
On September 20, 2011, Plaintiff reported fogginess and manic feelings with the reduction
of Paxil, along with starting Celexa. (Tr. 294.) Plaintiff’s loss of job was a source of “major
stress.” Id. Upon examination, Plaintiff’s depression and anxiety were of high severity. Id.
Dr. Stromsdorfer stated that overall, there was no improvement; he stopped the Celexa, continued
Paxil and Klonopin, and started Cymbalta.13 Id.
On October 13, 2011, Plaintiff’s mood was “slightly better.” (Tr. 293.) Plaintiff
reported looking for a job. Id. Upon examination, Plaintiff’s depression and anxiety were
“fairly high severity,” and her affect was depressed and tense. Id. Dr. Stromsdorfer noted
“slight improvement in dysphoria.” Id. He continued Plaintiff’s medications. Id.
Plaintiff saw Ms. Connor on October 13, 2011, after seeing Dr. Stromsdorfer. (Tr. 330.)
Plaintiff stated that she wanted to be stable, and wanted to find the right medications. Id.
Plaintiff appeared “extremely depressed.” Id. Plaintiff reported that she was struggling with
being unemployed and was having difficulty finding a job. Id. Plaintiff was “receptive to
becoming involved in therapeutic services.” Id.
Plaintiff saw Bradley Kinnear, LPC, at Comtrea on November 14, 2011, for counseling.
(Tr. 327.) Plaintiff reported a ten-year history of mood swings and anxiety. Id. Plaintiff
suggested a topic for counseling would be “her anger over two abortions she had to have because

12

Celexa is an antidepressant drug indicated for the treatment of depression. See PDR at 1161.
Cymbalta is indicated for the treatment of major depressive disorder and generalized anxiety
disorder. See PDR at 1801.
10
13

of her medications”. Id.
Plaintiff presented to Dr. Stromsdorfer on November 14, 2011, at which time her stress and
mood swings were noted to be high. (Tr. 292.) Upon examination, Plaintiff’s depression and
anxiety continued with fluctuation; and her affect was “somewhat depressed, anxious, not labile.”
Id. Dr. Stromsdorfer assessed a GAF score of 55, and stated Plaintiff was doing “slightly better”
overall. Id. Dr. Stromsdorfer increased Plaintiff’s dosage of Paxil, and continued the Klonopin
and Trileptal. Id.
Plaintiff saw R. Kinnear for counseling on November 28, 2011, at which time she reported
feeling significant anxiety. (Tr. 323.) Plaintiff reported experiencing more difficulty the past
couple weeks due to life stressors, including looking for a job. Id. On December 5, 2011,
Plaintiff reported that she was waiting to hear about a potential job opportunity. (Tr. 321.) She
reported difficulty sleeping and had not taken her medication prior to her appointment. Id.
Plaintiff presented to Dr. Stromsdorfer on December 12, 2011, at which time her mood
remained “highly upset,” with no change since increasing the dosage of Paxil. (Tr. 291.)
Plaintiff reported that her finances were strained, and she was waiting to hear if she would obtain a
job at Steak and Shake. Id. Upon examination, Plaintiff’s depression and anxiety were high; her
affect was depressed, very tense, and tearful. Id. Dr. Stromsdorfer continued Plaintiff’s
medications. Id.
On January 6, 2012, Plaintiff called Mr. Kinnear to inform him she was discontinuing
counseling indefinitely. (Tr. 317.) Plaintiff reported she started a new job, and Dr. Stromsdorfer
increased her dosage of Abilify.14 Id. Plaintiff reported that she was struggling with her

14

Abilify is an antipsychotic drug indicated for the treatment of bipolar disorder and major
depressive disorder. See PDR at 881.
11

symptoms, but stated that “[w]ith everything going on, I just don’t think I can handle working on
counseling.” Id.
On January 12, 2012, Plaintiff’s mood swings continued. (Tr. 290.) Dr. Stromsdorfer
noted that Plaintiff had called in because she felt overwhelmed; he recommended that Abilify be
added to Plaintiff’s prescription regimen. Id. Plaintiff expressed anxiety regarding starting
Abilify due to side effects she had experienced in the past. Id. Plaintiff was working at Jack in
the Box rather than Steak and Shake, which was busier and less organized. Id. On examination,
Plaintiff’s affect was somewhat depressed and tense. Id. Dr. Stromsdorfer assessed a GAF score
of 60, and added Abilify.

Id.

On January 26, 2012, Plaintiff’s mood was about the same. (Tr. 289.) Plaintiff’s
dysphoria was slightly better, but largely continuing. Id. Dr. Stromsdorfer stopped Abilify due
to reported side effects (nausea), increased Plaintiff’s dosage of Trileptal, and continued the
Klonopin and Paxil. Id.
On February 16, 2012, Plaintiff’s stress was very high. (Tr. 288.) Plaintiff was working
multiple shifts with some sleep deprivation. Id. Upon examination, Plaintiff was very dysphoric
and tearful; her depression and anxiety were high; her affect was depressed, tearful, and tense; and
her focus and memory were fair. Id. Dr. Stromsdorfer continued Plaintiff’s medications. Id.
On March 8, 2012, Plaintiff’s mood was not much better. (Tr. 287.) Plaintiff’s shift
became more steady, but she was not working as much. Id. Dr. Stromsdorfer stated that
Plaintiff’s dysphoria continued, but was somewhat better in degree. Id. Dr. Stromsdorfer
continued Plaintiff’s medications. Id.
Plaintiff presented to the emergency room at St. Anthony’s Medical Center on May 2,

12

2012, with complaints of increased anxiety and difficulty focusing at work. (Tr. 351.) Plaintiff
denied suicidal or homicidal ideations. Id.
Plaintiff saw Dr. Stromsdorfer on May 14, 2012, at which time she reported continued
mood swings with intermittent crying spells. (Tr. 286.) Plaintiff was working the night shift at
Hardee’s, which was going “relatively well.” Id. Upon examination, Plaintiff was somewhat
dysphoric; her depression and anxiety were still up and down somewhat; her affect was somewhat
labile with tearfulness intermittently observed; and her memory and focus were fair. Id. Dr.
Stromsdorfer’s assessment was “[o]verall, slight improvement in lability.” Id. He continued
Plaintiff on the Klonopin, Trileptal, and Paxil; and added Latuda.15 Id.
On June 14, 2012, Dr. Stromsdorfer indicated that Plaintiff’s mood swings remained
prominent. (Tr. 369.) Plaintiff’s work was overwhelming, and had been discontinued. Id.
Upon examination, Plaintiff’s depression and anxiety were of medium severity; her affect was
depressed, tense, and somewhat tearful; her focus and memory were decreased. Id. Dr.
Stromsdorfer continued Plaintiff’s medications. Id. He indicated that he supported her efforts to
obtain disability. Id.
On July 12, 2012, Plaintiff’s mood was “no better.” (Tr. 368.) Plaintiff’s financial strain
was difficult, and it was impairing her relationship with her significant other. Id. Upon
examination, Plaintiff’s depression and anxiety were of high severity; her affect was depressed,
and she was significantly tearful and tense. Id. Dr. Stromsdorfer assessed a GAF score of 55,
and indicated that Plaintiff was doing poorly overall. Id. Dr. Stromsdorfer prescribed Saphris,16

15

Latuda is indicated for the treatment of schizophrenia. See WebMD, http://www.webmd.
com/drugs (last visited September 23, 2014).       
16
Saphris is indicated for the treatment of mood disorders, including schizophrenia and bipolar
disorder. See WebMD, http://www.webmd.com/drugs (last visited September 23, 2014).
13

and continued Plaintiff’s other medications. Id.
On July 23, 2012, Plaintiff’s stress remained very high. (Tr. 367.) Financial stressors
were prominent, and her car would likely have to be sold soon. Id. Plaintiff’s husband was
concerned about her restarting any medication, so she did not start the Saphris. Id. Upon
examination, Plaintiff was moderately depressed and anxious, and her affect was somewhat
depressed and tense. Id. Dr. Stromsdorfer indicated that he would defer starting Saphris for the
time being due to the likely conflict within her marriage. Id.
Plaintiff presented to the emergency room at St. Anthony’s Medical Center on August 23,
2012, with complaints of anxiety. (Tr. 381.) Plaintiff reported that she had missed her
appointment with her psychiatrist, and was experiencing increasing anxiety for the past two weeks.
Id. Plaintiff’s medications were not helping. Id. Upon examination, Plaintiff was nervous and
anxious. (Tr. 383.) Plaintiff was diagnosed with anxiety, and was instructed to follow-up with
her psychiatrist. (Tr. 384.)
Plaintiff presented to Dr. Stromsdorfer on August 27, 2012, at which time both depression
and anxiety remained high. (Tr. 366.) Plaintiff was not showering for several days at a time.
Id. Plaintiff’s finances were a source of major stress. Id. Plaintiff had not started Saphris. Id.
Upon examination, Plaintiff’s affect was depressed and highly anxious; Plaintiff’s focus and
memory were fair. Id. Dr. Stromsdorfer assessed a GAF score of 50, and noted that Plaintiff’s
dysphoria was “significant.”

Id. Dr. Stromsdorfer started Plaintiff on Saphris. Id.

On September 10, 2012, Plaintiff’s depression and anxiety remained “very high.” (Tr.
365.) Plaintiff also experienced continued mood swings. Id. Plaintiff did not tolerate Saphris

14

due to grogginess. Id. Plaintiff had minimal interest in activities, and continued to isolate
herself to her home. Id. Dr. Stromsdorfer stopped the Saphris and continued her other
medications. Id. He noted that Plaintiff “is discouraged and reluctant to try another medication
at this time”; he suggested ECT as a potential option. Id.
On October 1, 2012, Plaintiff’s mood was doing somewhat better, but was still up and
down. (Tr. 364.) Major tensions were occurring as a consequence of her significant other
struggling with a gambling problem.

Id. Plaintiff was contemplating moving out. Id. Upon

examination, Plaintiff’s affect was depressed, but relatively calmer with less lability and no
tearfulness. Id. Dr. Stromsdorfer assessed a GAF score of 55, and continued Plaintiff’s
medications. Id.
On October 22, 2012, Plaintiff’s depression and anxiety continued. (Tr. 363.) Dr.
Stromsdorfer indicated that Plaintiff had obtained a consultation with Adam Sky as recommended
for assessment of TMS. Plaintiff wished to reduce dosages of medications due to lack of
effectiveness. Id. Dr. Stromsdorfer indicated that a course of TMS with Dr. Sky would be
pursued, and Plaintiff’s medications would be reduced. Id.
On November 19, 2012, Plaintiff’s anxiety was somewhat worse, as was her insomnia.
(Tr. 362.) TMS had not been started due to the cost of the treatment. Id. Upon examination,
Plaintiff’s affect was depressed, tearful, and very anxious. Id. Dr. Stromsdorfer stated that
Plaintiff’s dysphoria remained high, and she would attempt to pursue the TMS option with Dr.
Sky. Id.
On December 17, 2012, Plaintiff’s mood was slightly better in some ways, but she was still
experiencing anxiety attacks. (Tr. 361.) Plaintiff’s financial stressors remained high. Id. She

15

was attempting to obtain certification for TMS through the providing company. Id. Upon
examination, Plaintiff’s depression and anxiety remained fairly high; her affect was depressed but
less tearful, and moderately anxious. Id. Dr. Stromsdorfer continued Plaintiff on reduced
dosages of medications. Id.
Plaintiff presented to the emergency room at St. Anthony’s Medical Center on December
17, 2012, with complaints of anxiety. (Tr. 394.) Plaintiff presented with her mother, and they
requested Ativan17 for treatment of anxiety symptoms. Id. Plaintiff reported poor sleep and
significant anxiety despite being on the highest dosage of Trileptal. Id. Plaintiff noted recent
stressors of unemployment, financial hardship, and impending eviction. Id. Plaintiff indicated
that she was not interested in hospitalization or switching her long-term medications, because she
hoped to receive experimental treatment and was optimistic it would be successful. (Tr. 395.)
Plaintiff reported that she did not wish to adjust medications, because she had experienced
negative side effects in the past from medications. Id. Plaintiff was unable to indicate which
medications caused which side effects. Id. Upon examination, Plaintiff was anxious and
restless, and occasionally tearful, with a labile affect. (Tr. 396.) Plaintiff appeared “quite
miserable.” (Tr. 397.) Plaintiff was prescribed Ativan to treat her symptoms, and was
discharged to home. Id.
Evidence Presented to Appeals Council
In a letter dated April 2, 2013, Dr. Stromsdorfer stated that he was requesting approval for
Plaintiff to receive TMS treatment due to her “continued emotional distress, disability, and

17

Ativan is indicated for the treatment of anxiety. See WebMD, http://www.webmd.com/drugs
(last visited September 23, 2014).

16

difficulties either tolerating or responding to medications.” (Tr. 412.) Dr. Stromsdorfer stated
that Plaintiff has been “struggling with prominent mood difficulties” since the age of eighteen.
Id. Dr. Stromsdorfer indicated that he had been treating Plaintiff for a primary diagnosis of
bipolar disorder type I since October 14, 2010. Id. Dr. Stromsdorfer stated that Plaintiff had had
“minimal episodes of emotional stability with prominent emphasis on severe depressive
episodes.” Id. He indicated that Plaintiff’s anxiety “rapidly fluctuates and becomes intense.”
Id. The interventions offered by Dr. Stromsdorfer and tried by Plaintiff, included seventeen
different psychotropic medications. Id. Dr. Stromsdorfer stated that, although Plaintiff had been
working hard to improve her emotional state, she “remains disabled, experiencing ongoing mood
swings, low energy, lack of interest in activities, poor focus, crying spells and lack of interest in
usual activities.” Id. Dr. Stromsdorfer indicated that he last saw Plaintiff on February 25, 2012,
at which time she was taking Klonopin, Trileptal, and Paxil. Id. Dr. Stromsdorfer stated that he
supported Plaintiff’s attempts to receive TMS treatment. 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, 2016.

2.

The claimant has not engaged in substantial gainful activity since August 5, 2011,
the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3.

The claimant has the following severe impairments: bipolar disorder, an anxiety
disorder, and a personality disorder (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).

17

5.

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional limitations: the claimant is
limited to work that involves only simple, routine, and repetitive tasks. She should
work in a low stress job, defined as work requiring only occasional decision
making, only occasional changes in the work setting, no interaction with the public,
only casual and infrequent contact with co-workers, and contact with supervisors
concerning work duties (when work is being performed up to expectations)
occurring no more than three times per workday.

6.

The claimant is unable to perform any past relevant work (20 CFR 404.1565 and
416.965).

7.

The claimant was born on March 9, 1982 and was 29 years old, which is defined as
a younger individual age 18-49, on the alleged onset date (20 CFR 404.1563 and
416.963).

8.

The claimant has at least a high school education and is able to communicate in
English (20 CFR 404.1564 and 416.964).

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.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969,
and 416.969(a)).

11.

The claimant has not been under a disability, as defined in the Social Security Act,
from August 5, 2011, through the date of this decision (20 CFR 404.1520(g) and
416.920(g)).

(Tr. 13-21.)
The ALJ=s final decision reads as follows:
Based on the application for a period of disability and disability insurance benefits
filed on June 4, 2012, 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
June 4, 2012, the claimant is not disabled under section 1614(a)(3)(A) of the Social
18

Security Act.
(Tr. 22.)
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
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
19

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),
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
20

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,
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
21

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 determining Plaintiff’s RFC. Plaintiff also contends

that the hypothetical question posed to the vocational expert was erroneous. The undersigned
will discuss Plaintiff’s claims in turn.
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 a full range of work at all exertional levels but
with the following nonexertional limitations: the claimant is limited to work that involves
only simple, routine, and repetitive tasks. She should work in a low stress job, defined as
work requiring only occasional decision making, only occasional changes in the work
setting, no interaction with the public, only casual and infrequent contact with co-workers,
and contact with supervisors concerning work duties (when work is being performed up to
expectations) occurring no more than three times per workday.
(Tr. 15.)
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
22

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).
Plaintiff argues that the ALJ erred in evaluating the medical evidence from Plaintiff’s
treating psychiatrist, Dr. Stromsdorfer. Plaintiff contends that the RFC formulated by the ALJ is
not, therefore, supported by the medical evidence. The undersigned agrees.
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 v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000).

The opinion of an examining

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

23

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

Under the regulations, the ALJ “will always give good reasons . . .

for the weight [he or she] give[s] [a claimant’s] treating source opinion.” 20 C.F.R. §
404.1527(c)(2).
The ALJ found that Plaintiff’s medical records show that “many of the claimant’s mental
health and functional problems are attributable to life stressors, that she has not been compliant
with her treatment, and that she has not pursued possible treatment avenues.”

(Tr. 16.)

The

ALJ stated that Plaintiff “functioned fairly well when she was working and had stable finances and
personal life,” but her “functioning diminished when she reported not working, financial
difficulty, and problems in her family and in her relationship with her significant other.” (Tr. 17.)
It is true that mental impairments that are situational and do not result in functional
limitations are not disabling. See Dunahoo v. Apfel, 241 F.3d 1033, 1039-40 (8th Cir. 2001)
(claimant’s depression was due to her denial of food stamps and workers’ compensation and did
not result in significant functional limitations). In this case, however, Plaintiff’s mental
impairments are not purely situational, and result in significant limitations. Plaintiff was
consistently diagnosed with bipolar I disorder and personality disorder not otherwise specified.
Plaintiff received regular psychiatric treatment, and was prescribed multiple psychotropic
medications to treat these mental impairments. The severity of Plaintiff’s symptoms did vary,
which is consistent with the nature of mental illness, specifically bipolar disorder.
The ALJ noted that Plaintiff reported struggling with financial strains, including being
unemployed, having difficulty finding work, and being denied disability and unemployment
benefits. (Tr. 18.) The ALJ stated that Plaintiff’s psychiatric problems were caused by these
stressors, and that they are not, therefore, disabling. Id. While it is true Dr. Stromsdorfer noted

24

at times Plaintiff’s symptoms were exacerbated due to the situational factors mentioned by the
ALJ, the medical record reveals Plaintiff continued to experience symptoms even when she was
working. In fact, the ALJ ignores the fact that Plaintiff’s jobs were often a source of significant
psychiatric distress.
At Plaintiff’s initial visit with Dr. Stromsdorfer in October of 2010, he noted that Plaintiff
had lost jobs in the past due to her mood lability. (Tr. 309.) On February 7, 2011, Dr.
Stromsdorfer indicated that Plaintiff’s anxiety was high, she had difficulty accomplishing tasks if
her workload exceeded 25 hours, and she had obsessional thoughts about being perfect on her
tasks. (Tr. 303.) On May 9, 2011, the frequent changes in Plaintiff’s work stress were
interfering with her focus and her sleep. (Tr. 300.) Dr. Stromsdorfer advised Plaintiff to obtain a
set work schedule. Id. On July 28, 2011, Plaintiff reported that her anxiety had been “very bad”
and had caused her to leave work at times. (Tr. 296.)

Dr. Stromsdorfer advised Plaintiff to take

a leave of absence from work. Id. Plaintiff expressed to her caseworker that she was very
concerned about losing her job due to needing time off to handle her medication transition. Id.
On February 16, 2012, Plaintiff’s level of stress was very high due to working multiple shifts with
some sleep deprivation. (Tr. 288.) Plaintiff presented to the emergency room on May 2, 2012,
due to increased anxiety and difficulty focusing at work. (Tr. 351.) On June 14, 2012, Plaintiff
complained of mood swings and reported that she had discontinued work, because it was
overwhelming. (Tr. 369.) Dr. Stromsdorfer indicated that he supported Plaintiff’s efforts to
obtain disability benefits. Id.
The medical record reveals that Plaintiff experienced psychiatric symptomatology when
she was working and that she ultimately stopped working due to these symptoms. Id. Dr.

25

Stromsdorfer indicated that he supported Plaintiff’s efforts to obtain disability benefits due to the
dysphoria she continued to experience while working. (Tr. 369.) Thus, the ALJ erred in finding
that Plaintiff’s psychiatric problems were caused by life stressors, and that Plaintiff “functioned
fairly well” when she was working. The ALJ’s RFC determination, which is based on his
erroneous findings, is not supported by substantial evidence.
The ALJ also found that Plaintiff has not been compliant with her treatment, and that she
has not “pursued possible treatment avenues.” (Tr. 16.)

In support of this finding, the ALJ

first noted instances in which Plaintiff had missed scheduled therapy sessions, Plaintiff
discontinued therapy, and Plaintiff had missed certain dosages of medications.

(Tr. 18.)

The

ALJ also noted that Dr. Stromsdorfer recommended that Plaintiff consider electroconvulsive
therapy as a potential option to control her symptoms.

(Tr. 18.)

The ALJ stated that Plaintiff

instead raised the possibility of undergoing TMS, an “experimental treatment,” as an alternative
to Dr. Stromsdorfer’s recommendation.

Id.

The ALJ stated that “[a]lthough the records made

clear that it was the claimant’s own decision to stop her medications and pursue this
experimental treatment, the claimant told her counselor that this course of action was directed by
Dr. Stromsdorfer, and she also testified at the hearing that Dr. Stormsdorfer had recommended
this treatment.”

(Tr. 19.)

The ALJ stated again that Plaintiff’s “reports that her psychiatrist

recommended this experimental treatment and that she discontinue her medications are not
consistent with the medical records.”

Id.

The ALJ found that this inconsistency, in

combination with her noncompliance with recommended treatment, “significantly undermines
the credibility of the claimant’s allegations of disability.” Id.
Plaintiff contends that new evidence submitted to the Appeals Council, the narrative

26

report from Dr. Stormsdorfer, calls into significant question the conclusions reached regarding
Plaintiff’s compliance with medication treatment.
In a letter dated April 2, 2013, Dr. Stromsdorfer stated that he was requesting approval for
Plaintiff to receive TMS treatment due to her “continued emotional distress, disability, and
difficulties either tolerating or responding to medications.” (Tr. 412.) Dr. Stromsdorfer stated
that Plaintiff has been “struggling with prominent mood difficulties” since the age of eighteen.
Id. Dr. Stromsdorfer indicated that he had been treating Plaintiff for a primary diagnosis of
bipolar disorder type I since October 14, 2010. Id. Dr. Stromsdorfer stated that Plaintiff “has
had minimal episodes of emotional stability with prominent emphasis on severe depressive
episodes.” Id. He indicated that Plaintiff’s anxiety “rapidly fluctuates and becomes intense.”
Id. Dr. Stromsdorfer stated that, although Plaintiff had been working hard to improve her
emotional state, she “remains disabled, experiencing ongoing mood swings, low energy, lack of
interest in activities, poor focus, crying spells and lack of interest in usual activities.” Id. Dr.
Stromsdorfer indicated that he last saw Plaintiff on February 25, 2012, at which time she was
taking Klonopin, Trileptal, and Paxil. Id. Dr. Stromsdorfer stated that he supported Plaintiff’s
attempts to receive TMS treatment. Id.
Dr. Stromsdorfer’s letter was written after the Appeal’s Council denied Plaintiff’s request
for review on March 29, 2013. (Tr. 1-4.) Plaintiff submitted the new evidence to the Appeals
Council, along with a letter requesting that the Appeals Council reconsider its decision. (Tr. 411.)
The evidence was added to the administrative record, but there is no record of any further action
taken by the Appeals Council. Plaintiff now requests that the matter be remanded to the
Commissioner for consideration of the new evidence.

27

A sentence six remand is authorized in two limited situations: (1) where the Commissioner
requests a remand before answering the complaint of a claimant seeking reversal of an
administrative ruling, or (2) where new and material evidence is adduced that was for good cause
not presented during the administrative proceedings. See 42 U.S.C. ' 405(g); Shalala v. Schaefer,
509 U.S. 292, 297 n. 2 (1993). “Material evidence is ‘non-cumulative, relevant, and probative of
the claimant’s condition for the time period for which benefits were denied, and there must be a
reasonable likelihood that it would have changed the [Commissioner’s] determination.’”
Krogmeier v. Barnhart, 294 F.3d 1019, 1025 (8th Cir. 2002) (quoting Woolf v. Shalala, 3 F.3d
1210, 1215 (8th Cir. 1993)).
Here, the undersigned finds that the new evidence is material. The letter was written only
four days after the Appeals Council denied review, and approximately six weeks after the ALJ’s
determination. Dr. Stromsdorfer’s letter applies to the period at issue, as he discusses Plaintiff’s
mental health treatment from October 2010 through February 2013. (Tr. 412.) The letter
clarifies that Dr. Stromsdorfer is recommending TMS treatment, and provides detailed reasons for
this recommendation. Id. This is significant because the ALJ found that Plaintiff was seeking
TMS treatment despite Dr. Stromsdorfer’s recommendation that she undergo shock therapy. The
ALJ found that Plaintiff was noncompliant with treatment recommendations and discredited her
credibility based on this finding. The new evidence contradicts the ALJ’s findings that were cited
as a basis for the decision to deny benefits. Dr. Stromsdorfer’s letter also serves to generally
elucidate the severity of Plaintiff’s mental impairments during the relevant period. Thus, the new
evidence also provides a basis for remand.

28

Conclusion
In sum, the RFC formulated by the ALJ is not supported by substantial evidence on the
record as a whole.

The ALJ erred in analyzing the medical evidence of record.

Specifically,

the ALJ erred in finding that Plaintiff’s mental health problems were attributable to life stressors,
and that that she functioned well while she was working.
based on this inaccurate finding.

The ALJ’s RFC determination was

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.
The new evidence from Dr. Stromsdorfer serves as an additional basis to remand this
matter.

In his letter, Dr. Stromsdorfer provides greater clarification regarding the severity of

Plaintiff’s mental illness during the relevant period, and directly refutes the ALJ’s finding that
TMS treatment was not recommended by Plaintiff’s doctor.
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 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 30th day of September, 2014.
29