Norton v. Social Security Administration

Filing 14

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and this matter is remanded pursuant to the fourth sentence of 42 U.S.C. § 405 (g) for further proceedings. A separate Judgment in accordance with this Memorandum and Order will be entered this same date. Signed by District Judge Carol E. Jackson on 2/13/2015. (KMS)

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

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Case No. 4:14-CV-263 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
Security Administration.
I. Procedural History
On May 30, 2011, plaintiff Elizabeth Ann Norton filed an application for disability
insurance benefits, Title II, 42 U.S.C. §§ 401 et seq., with an alleged onset date of
December 1, 2005, which was subsequently amended to March 12, 2008. (Tr. 123-25,
126-30, 35). After plaintiff’s application was denied on initial consideration (Tr. 68-74),
she requested a hearing from an Administrative Law Judge (ALJ). (Tr. 78-79).
Plaintiff and counsel appeared for a hearing on November 15, 2012. (Tr. 3360). The ALJ issued a decision denying plaintiff’s application on December 10, 2012.
(Tr. 15-32). The Appeals Council denied plaintiff’s request for review on January 9,
2014. (Tr. 1-6). Accordingly, the ALJ’s decision stands as the Commissioner’s final
decision.
II. Evidence Before the ALJ
A. Disability Application Documents
In her Disability Report (Tr. 169-76), plaintiff listed her disabling conditions as
major depressive disorder and bipolar 2 disorder. She had previously worked as a

college instructor and a legislative liaison.

She was prescribed psychotropic

medications Bupropion XL,1 Lamotrigine,2 Ritalin, Trazodone,3 and Venlafaxine.4 In
addition to medication, she received therapy and electroconvulsive treatment (ECT).5
Plaintiff completed a Function Report on June 15, 2011. (Tr. 177-87). She lived
alone.

Her daily activities included making coffee, letting the dogs out, watching

television, using the laptop for email and browsing, eating, and sleeping for two or
three hours. She occasionally tried to exercise and she reported that she did laundry,
managed her checkbook, and cleaned house. She was in contact with her therapist
five days a week. She occasionally saw a doctor, saw a movie, or visited her sister.
Her sister brought pet food and helped her with trips to the vet or groomer.
Plaintiff stated that since becoming ill she was unable to walk her dogs, get
places on time, drive long distances, or shop. She had difficulty sleeping. With respect
to self-care, she reported having difficulty choosing appropriate clothing and her
bathing and grooming habits were lacking.

She needed reminders to comb and cut

1

Buproprion is an antidepressant of the aminoketone class and is indicated for
treatment of major depressive disorder. See Phys. Desk Ref. 1648-49 (63rd ed.
2009).
2

Lamictal, or Lamotrigene, is used to increase the time between episodes of
depression, mania, and other abnormal moods in patients with bipolar disorder.
www.nlm.nih.gov/medlineplus/druginfo/meds (last visited on December 17, 2014).
3

Trazodone is a seratonin modulator prescribed for the treatment of depression.
It may also be prescribed for the treatment of schizophrenia and anxiety.
www.nlm.nih.gov/medlineplus/druginfo/meds (last visited on Oct. 27, 2009).
4

Effexor, or Venlafaxine, is indicated for the treatment of major depressive
disorder. See Phys. Desk Ref. 3196 (63rd ed. 2009).
5

During electroconvulsive therapy (ECT), electric currents are passed through
the brain, intentionally triggering a brief seizure. ECT seems to cause changes in brain
chemistry that can quickly reverse symptoms of certain mental illnesses, including
severe or treatment-resistant depression. http://www.mayoclinic.org/tests-procedures
/electroconvulsive-therapy/basics/definition/prc-20014161 (last visited Dec. 17, 2014).
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her hair. Plaintiff prepared very simple meals, such as cereal or sandwiches. She
reported that her diet consisted of starches, soda, and water.

With respect to

household chores, she stated that she spent 15 or 20 minutes a day doing laundry,
sweeping, dusting and cleaning bathrooms. Her sister cleaned the house and did
laundry for her every two months. She could occasionally go out alone, but stated that
she was too anxious, scared or unfocused. She did shopping in stores, by mail or
online. Her sister helped her pay bills, but she could handle her bank accounts and
count change.

Her hobbies included watching television, listening to music, and

making graphics for her sister. She tried to go to a movie with a friend once a week,
but she had to talk herself into it. Plaintiff had difficulties with memory, completing
tasks, concentrating, understanding, following instructions, and using her hands. She
explained that it was “almost impossible” for her to complete tasks; she had to read
things three or four times to understand them; often could not remember what she or
others had said; her concentration was “erratic;” and it took her longer to do things
on the computer. Although she thought she could pay attention for about 10 or 15
minutes, she had to read the application forms a dozen or more times to understand
what she was supposed to do. She could manage short verbal instructions. She
handled changes in routine poorly. She was able to be respectful to authority figures
even when irritated by them. She was afraid to walk alone or with her dog; was
unhappy being away from home for more than a couple of hours; and had trouble with
unspecified sounds. She had difficulty falling and staying asleep.
Plaintiff’s sister, Nancy Norton, completed a Third-Party Function Report on June
17, 2011. (Tr. 188-95). Ms. Norton stated that she spent at least 15 hours a week
with plaintiff. She stated that plaintiff had increased her seclusion and described her

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daily activities as follows: “Sits in house and smokes and watches TV, takes care of
dogs, goes to movie with neighbor, obsessed with computer, attends some family
dinners, goes to Goodwill [and] Walgreens.” Ms. Norton took the dogs to her own
house when they became too much for plaintiff.

Plaintiff might stay up all night

because she was feeling stressed by a simple thing. Ms. Norton made appointments
for and drove plaintiff to the dentist and eye doctor. Plaintiff’s diet was restricted, and
she no longer even heated soup in the microwave. Ms. Norton thought that plaintiff’s
medications affected her sense of taste. Plaintiff’s lack of concentration interfered with
her ability to get things done; she barely cleaned her house, and might store up her
laundry and then spend all night doing it. Plaintiff, who “used to be a great driver,” hit
things in the road or the garage. She forgot to pay bills or failed to do so if she had
no money. Plaintiff went to a movie once a week and out to dinner once or twice a
week. She used to be able to grocery shop, go to music events, drive more than 5
miles, make simple decisions, cook, and enjoy life.
B. Testimony at Hearing
Plaintiff was 54 years old at the time of the hearing on November 15, 2012. She
graduated from college and obtained a Master’s degree. She last worked in 2005 as
a part-time instructor for a single semester at a college.

She testified that she

“muddled through” the semester, explaining that it was a struggle for her to manage
the students and that she had trouble organizing and staying focused. (Tr. 38). For
example, she was shown how to use the classroom technology but could not remember
how to do so. She could manage about thirty minutes of lecturing before she broke
the students into groups. She described herself as rather uncomfortable and lacking
in energy. She was tired from the “whole ordeal” of preparing for class and driving to

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the school and she wanted to leave as quickly as possible.

Before teaching, she

worked for one year as a legislative liaison for the Illinois Environmental Protection
Agency. (Tr. 39-40). The job required her to handle phone calls and correspondence
from state legislators regarding constituent concerns. She testified that she could not
“take the hours,” and missed her sisters’ support. It became “harder and harder” to
contain her emotions and maintain a professional demeanor.
Plaintiff testified that, in 2008, she was suffering from intractable depression and
had a nervous breakdown. Her depression did not respond to medication and she was
not functioning “at all.” (Tr. 40-41). She was suicidal but lacked the energy to act on
the feelings; she also had a strong wish not to do something that would harm others.
She was hospitalized three times in 2008. The third hospitalization came about after
her sixth or seventh ECT. The staff thought she might be suicidal and admitted her
“without even [her] participation in the decision.” (Tr. 41). In August or September
2008, plaintiff’s psychiatric care was transferred to Katherine P. Buchowski, M.D.6 Sun
Smith-Forte has provided therapy to plaintiff for about 12 years, seeing her three times
a week or more. (Tr. 43). In 2008, plaintiff was “probably talking to her four or five
times a week.”
Plaintiff testified that, following her release from the hospital in 2008, she was
unable to take care of herself. One of her sisters moved in with her to take care of
meals, the house, and plaintiff’s dog. She slept quite a bit and had a great deal of
trouble getting up and staying up; it was also a struggle for her to shower and dress.
Eventually, her sister made her leave the house to run an errand with her, a trip that
plaintiff described as “taxing.” (Tr. 44).

6

Plaintiff was treated by Adam Sky, M.D., between 2000 and 2008. See Tr.230.
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In response to questions from the ALJ, plaintiff acknowledged that she had been
to Texas once between 2008 and 2010; she could not recall whether she had been to
California. She also acknowledged that she told her psychiatrist that she was selfemployed as an artist. (Tr. 45). However, she did not earn any money as an artist.
The records reflect that she claimed to have been commissioned to do a painting. (Tr.
46).

She testified that it was more accurate to say that she was asked to do a

painting; there was no commitment of money and she never finished it. She also
added text to photographs for a friend, but she required a lot of help to finish the
project. The ALJ pressed plaintiff, noting that in 2009 she had told her psychiatrist that
she was getting commissions to do artwork. (Tr. 47). Plaintiff stated that she found
it hard to acknowledge that, despite advantages and opportunities, she was not
accomplishing anything. When people asked her to work on projects, she had great
hopes but, over time, she had a better grasp of her limits. The last time she produced
significant work was in 2003. (Tr. 53). When challenged that she had been dishonest
with her psychiatrist, plaintiff testified that she was trying to convince herself that she
was functioning. (Tr. 47-48). She did not want her psychiatrist to think she was
“giving in to [her] limitations” and she “was not raised to look like [she] was having
a hard time and so [was] pretty good at it.” (Tr. 50-51).
The ALJ asked plaintiff if she had been “going to parties,” citing a notation in July
2008. Plaintiff vaguely recalled that she had attended a party. She also stated that
she had a birthday party that her sisters had arranged for her.

(Tr. 48). Plaintiff

attended yoga three times a week for seven or eight months, but stopped because she
became self-conscious, it was hard to focus, and she was “so tired.” (Tr. 49).

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Plaintiff did not think she would have been able to work between 2008 and 2010
because she had difficulty staying focused and keeping her emotions under control.
Earlier in her career she had panic attacks and crying spells while teaching. In 2008,
she had required her sister’s assistance in managing her home, preparing meals, and
doing laundry. She still found it difficult to pay bills, because she needed reminders
and then found it hard to focus sufficiently to write a check. She had difficulty reading,
and she got lost when driving. She had applied to a local art store for a job, and
brought home a job application from Goodwill but never completed it.
The ALJ asked Robin A. Cook, Ph.D., a vocational expert, to classify plaintiff’s
past work in accordance with the Dictionary of Occupational Titles and Selected
Characteristics of Occupation. (Tr. 54). Dr. Cook testified that because plaintiff did
not work at her past positions for one year of full-time work, she did not meet any
Specific Vocational Preparation (SVP) levels. (Tr. 54-55). Dr. Cook also testified that
an individual with plaintiff’s education who was limited to performing unskilled work
with no more than infrequent handling of customer complaints would be unable to
perform plaintiff’s past relevant work, but could work as an industrial cleaner, kitchen
helper, or housekeeping cleaner. (Tr. 55-56). Plaintiff’s counsel asked Dr. Cook to
assume that the individual had marked limitations in the ability to maintain attention,
concentration, and focus on work duties, and the ability to sustain employment for
more than 6 months without decompensation. Dr. Cook was asked to further assume
that the individual had moderate limitations in several abilities, including the ability to
maintain a schedule and be punctual; to understand, remember and carry out simple
instructions and procedures; to complete a normal workweek without interruption from
psychological symptoms; to maintain appropriate behavior in interaction with others

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and respond appropriately to criticism, changes in routine, and stress; and to
demonstrate reliability.7 Such a person would not be able to work. (Tr. 58).
C. Medical Records
On March 12, 2008, plaintiff was admitted to St. Mary’s Health Center with
complaints of depression, which began in September 2007.

(Tr. 238-40).

She

reported that she had crying spells, impaired concentration, loss of interest and
energy, and social withdrawal. She had poor appetite and had lost 5 to 10 pounds
over the prior two months. She agreed to hospitalization when she began to have
suicidal thoughts. She had been hospitalized 25 years earlier when she was working
on her Master’s degree. During that hospitalization, she was diagnosed with bipolar
disorder and started taking Lithium. She had other periods of depression but this
episode was the most severe that she had experienced. She has also been treated
with Lamictal, Abilify,8 Trazadone, and Effexor. Plaintiff reported that she had spent
two years teaching high school and then taught at Hofstra College for 10 years. Since
that time, she worked only part-time, if at all, and was living on inherited money. She
appeared depressed and somewhat forlorn. She was cooperative and well oriented.
Her diagnosis at admission was bipolar, depressed, and she was assigned a Global
Assessment of Functioning score of 30. Plaintiff was discharged on March 19, 2008,

7

These are the limitations found in the medical source statement completed by
plaintiff’s treating psychiatrist in August 2011. (Tr. 286). The ALJ objected to the
submission of this evidence to Dr. Cook because “there is no indication whether Ms.
[sic] Buchowski is referring to the plaintiff’s present condition orwhether she has
referred back to 2008 to 2010.” (Tr. 58).
8

Abilify, or Aripiprazole, is used to treat episodes of mania or mixed episodes in
persons with bipolar disorder, and depression when symptoms cannot be controlled by
the antidepressant alone. www.nlm.nih.gov/medlineplus/druginfo/meds (last visited
on Dec. 17, 2014).
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after she denied suicidal ideation and declined ECT. Her sister agreed that plaintiff
could stay with her after discharge and her treating psychiatrist, Dr. Adam Sky, agreed
to discharge plaintiff with instructions to follow up with him in two days. (Tr. 236-37).
Plaintiff was readmitted to St. Mary’s Health Center on May 30, 2008, following
her seventh ECT. (Tr. 229-32). Dr. Sky noted that plaintiff had increasing tearfulness,
anxiety and depression. She stated that she “can’t take it anymore” and it was felt
that she needed additional treatment and observation. (Tr. 230-31). She reported
feeling hopeless and very disappointed in herself for ending up in the hospital. Dr. Sky
noted that the ECT treatments had produced marginal results, although her sister had
seen some improvement. Her current medications included Venlafaxine, Bupropion,
and Trazadone.

She had been treated in the past with Fluoxetine,9 Lithium, and

Depakote.10 The plan was to continue her medications and ECT. Dr. Sky said he would
also talk with plaintiff’s sister, whom he viewed as “a pretty good barometer” as to how
plaintiff was doing. On June 1st, Dr. Sky noted that plaintiff was totally focused on
going home; her mood was fair and her affect was depressed.

(Tr. 232). She was

discharged on June 2nd after her eighth ECT. Further ECT was suspended because her
family insisted that she was doing much better. (Tr. 229).
Psychiatrist Katherine P. Buchowski, M.D., completed a new patient evaluation
on July 8, 2008.

(Tr. 264-67).

Plaintiff reported that she did not have much

enthusiasm, had no motivation, and did not look forward to anything better. She slept
for five or six hours and described her energy as low. She reported that she had

9

Prozac, or fluoxetine, is a psychotropic drug indicated for treatment of, inter
alia, major depressive disorder. See Phys. Desk. Ref. 1772-72 (60th ed. 2006).
10

Depakote, or Valproic acid, is also used to treat mania in people with bipolar
disorder. www.nlm.nih.gov/medlineplus/druginfo/meds (last visited on Oct. 27, 2009).
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chronic low motivation and sadness. Dr. Buchowski noted that plaintiff was alert and
cooperative, with no abnormality of speech or thought. She presented with depressed
mood, full range of affect, and good concentration. Dr. Buchowski diagnosed plaintiff
with Major Depressive Disorder - Recurrent, Moderate, rule out Dysthymia.

She

assessed plaintiff’s current GAF as 50, and her highest in the past year as 60. Dr.
Buchowski made changes to plaintiff’s medications, including discontinuing Zyprexa.
On July 22, 2008, Dr. Buchowski noted that plaintiff was “really struggling,” with
crying spells and some anxiety. She was seeing or speaking with her therapist daily.
Dr. Buchowski assessed her mood as depressed and her affect as constricted. She
represcribed Zyprexa.

(Tr. 263).

The following week, plaintiff noted some

improvement, describing herself as “less teary” with slightly increased motivation, and
slightly decreased anxiety. She went to a party. She was also planning to go to
California in August to see her sister, but was unsure whether she wanted to go. She
was trying to de-clutter her house. (Tr. 262).
In August, plaintiff reported that she had enjoyed her trip to California and was
considering a volunteer job. She rated her motivation level at “50%”. She was not
taking her Trazadone. (Tr. 261). In September 2008, plaintiff reported that her mood
and motivation had both declined. She was spending time online looking for jobs and
reading. Dr. Buchowski noted that plaintiff had depressed mood and constricted affect
and introduced a trial of Ritalin to treat refractory depression. (Tr. 260). In October
2009, plaintiff reported mild improvement to energy and motivation and that she had
sent out some resumes. Her energy and motivation were mildly improved with Ritalin.
She was assessed as depressed, with constricted affect and Dr. Buchowski prescribed
Lamictal.

(Tr. 259). The following month, plaintiff reported that her mood and

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motivation were better. She was mildly anxious because she needed to prepare her
home for a visit from her sister. Dr. Buchowski noted that plaintiff was busy socializing
and had improved mood.

She had mild bilateral tremulousness.

(Tr. 258).

In

November 2008, plaintiff reported that she had enjoyed her sister’s visit and was
socializing with friends.

She described her mood as “ok” and said she had good

motivation in the morning. (Tr. 257).
In January 2009, plaintiff reported that she had been “ok” during the holidays,
but was feeling let-down since. She had occasional anxiety, but less difficulty leaving
her house. She was receiving individual therapy 2 to 3 times a week. In February, she
said her mood was low, she was having more difficulty sleeping through the night, and
was more tired as a result. Her motivation was low as well. She was enjoying yoga
twice a week. (Tr. 255). In March, she stated that she was struggling “a little,” but
learning to meditate and enjoying yoga. Her motivation was poor and parts of her
house were untidy. She was waking up between 4:00 and 5:00 in the morning. (Tr.
254). In April, she was active with friends, meditating with friends three times a week,
and had started using Facebook. She was planning to visit friends in Texas in June.
Her depression was “still there,” but her sleep, appetite and energy were all “ok.” (Tr.
253). In June, she was irritable, tired, and edgy. Her 50th birthday was hard because
friends threw a surprise party for her; her trip to Texas was also hard. She “calmed”
considerably during the appointment. (Tr. 252). In August, she reported that she was
“just muddling through.” She was having trouble getting out, was no longer doing
yoga, and was talking to her therapist on the telephone three times a week. She was
still going out for coffee and a movie. Dr. Buchowski assessed her as “stable.” (Tr.
251). She was again “stable” in October. (Tr. 250). In December, she reported that

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she was “doing ok” and was very busy and working on her first art project. She also
complained about confusion and forgetfulness. (Tr. 249).
Dr. Buchowski assessed plaintiff as stable throughout 2010.

In February,

plaintiff reported that she had finished a painting for her nephew and had been
commissioned to do another painting. She also did some artwork for a CD. She was
very distracted and forgetful, and had difficulty staying on task. In April, she was
going out regularly, and it was taking less effort than it had a year earlier. She was
painting “a little” and her house was in good shape. (Tr. 247). In June, she mentioned
that her sister was staying with her. She continued to be socially active, but leaving
the house was very hard. She was painting but the results were disappointing. (Tr.
246). In September, she visited a friend in Connecticut. She had anxiety before
leaving.

(Tr. 245). In November, plaintiff reported that she was doing well and

looking forward to the holidays. She was socializing with friends. Dr. Buchowski
described plaintiff as “doing very well.”11
On July 1, 2011, Sun Smith-Foret, LCSW, completed a medical source statement
(MSS). (Tr. 271-72). She diagnosed plaintiff with Major Depressive Disorder with
melancholic features.

She noted that plaintiff had been withdrawn, fearful, and

anxious in childhood and had been hospitalized in the past. She described plaintiff as
“maintaining” with medication and psychotherapy. On a daily basis, plaintiff presented
with intermittently depressed mood; fatigue and loss of energy; diminished sensation
of pleasures; feelings of worthlessness; diminished ability to think or concentrate; and

11

Dr. Buchowski saw plaintiff six times in 2011 and twelve times in 2012. (Tr.
243, 242, 289-92, 305, 288, 297-304). Although plaintiff was generally stable, Dr.
Buchowski noted difficulty with focus, constricted affect, poor eye contact, and
irritability. In 2012, Dr. Bukowski noted restlessness more frequently.
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recurrent thoughts of death.

She had psychotherapy three times a week plus

medication. Her GAF at her last hospitalization had been 20 and was 50 at the present
time. Ms. Smith-Foret wrote that plaintiff “has very strong work ethic. Depressive
condition makes even volunteer work impossible. She is no longer actively suicidal but
requires meds and psychotherapy to sustain life skills and relationships.” (Tr. 271).
Ms. Smith-Foret also completed a Mental Residual Functional Capacity
Assessment. (Tr. 272). She assessed plaintiff as having marked limitations12 in the
abilities to maintain a work schedule and be punctual; maintain adequate attention,
concentration, and focus throughout a work day; complete a normal work week
without interruptions from symptoms; interact appropriately with customers or the
public and work in coordination with or close proximity to others; respond to work
changes and stressors; demonstrate reliability; and work for more than six months
without decompensation.

Ms. Smith-Foret assessed plaintiff as having moderate

limitations13 in the abilities to understand, remember, and carry out instructions;
accept instruction and criticism; maintain socially appropriate behaviors and adhere to
basic standards of cleanliness and neatness; and maintain personal appearance and
hygiene.
Martin Isenberg, Ph.D. completed a Psychiatric Review Technique on July 27,
2011. (Tr. 273-83). Based on a review of the record, Dr. Isenberg concluded that
plaintiff met the criteria for affective disorder, but that her impairment was not severe.

12

“Marked” is defined as “a complete inability to perform the particular activity
in a normal work setting, even for short periods of time.”
13

“Moderate” indicates that “the activity is not totally precluded but is
significantly impaired in terms of proficiency and/or the ability to sustain the particular
activity over the course of a work day/week.” The term indicates that “the activity can
be performed occasionally but not continually, in a normal work setting.”
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Dr. Isenberg found that plaintiff was mildly restricted in the activities of daily living but
otherwise had no limitations.

Dr. Isenberg noted that plaintiff has been seeking

psychiatric treatment for major depressive disorder and dysthymia since July 2008.
She had several medication adjustments during the first year but has been stable since
July 2009. In November 2010, she was looking forward to holiday events; in February
2011, she reported that “everything was pretty good.” She was active with friends,
her mental status was normal, and she was stable. Dr. Isenberg found that plaintiff
did not have a medically determinable impairment of bipolar disorder. Although she
has had severe impairments in the past, she was currently stable and her symptoms
were nonsevere on December 31, 2010, the date she was last insured.
Dr. Buchowski completed an MSS on August 8, 2011. (Tr. 285).

She noted

that plaintiff’s psychiatric history began in her late teens and that she has been in
psychiatric care for over 25 years. She was diagnosed with recurrent Major Depressive
Disorder with predominant symptoms of low mood, crying spells, lack of motivation,
heightened anxiety, and inability to focus. Her episodes of depression could last for
six months. In between these episodes, she had dysthymia, which Dr. Buchowski
defined as chronic low mood. She was hospitalized three times, underwent ECT, and
was prescribed psychotropic medications. Dr. Buchowski described plaintiff’s current
functioning as “barely stable. She is able to manage the anxiety and depression but
is easily overcome by mild stress.

She continues to have difficulty with

focus/concentration and initiative.” Her diagnoses were Major Depressive Disorder Recurrent,

and Dysthymia.

Her GAF was 50. Therapy and medication kept her

“barely stable.” Her medications were Velafaxone (a total of 225 mg a day); Lamictal
(150 mg a day); Budeprion XL (300 mg a day); Ritalin (a total of 10 mg a day); and

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Trazodone (100 mg a day). Dr. Buchowski opined that plaintiff “has been barely stable
for a couple of years now.

When placed under even minimal stress, she

decompensates.” Full-time employment “would almost certainly lead to a recurrence”
of Major Depressive Disorder.
Dr. Buchowski also completed a Mental Residual Functional Capacity
Assessment. (Tr. 286). She assessed plaintiff as having marked limitations in the
abilities to maintain adequate attention, concentration, and focus throughout a work
day, and to work for more than six months without decompensation. She assessed
plaintiff as having moderate limitations in the abilities to maintain a work schedule and
be punctual; to understand, remember, and carry out instructions; make simple workrelated decisions; complete a normal work week without interruptions from symptoms;
interact appropriately with customers or the public and work in coordination with or
close proximity to others; accept instruction and criticism; maintain socially appropriate
behaviors and adhere to basic standards of cleanliness and neatness; respond to work
changes and stressors; demonstrate reliability; and maintain personal appearance and
hygiene.
On February 12, 2012, Ms. Smith-Foret provided an additional statement, to
more specifically address plaintiff’s condition before December 31, 2010. (Tr. 295-96).
She reiterated that plaintiff was hospitalized in 2008 for a severe depressive episode
and was treated with ECT, in addition to ongoing treatment with medication and
supportive therapy. Her GAF had maintained at 45 for the last four years. Plaintiff’s
condition “is long standing, . . . pervasive, chronic, and severe.” With psychotherapy,
she was able to maintain her sense of self, and engage in necessary grooming and
social interactions, exclusive of working. Ms. Smith-Foret diagnosed plaintiff with an

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Axis II disorder of dependent personality disorder and deferred to Dr. Buchowski’s Axis
I diagnosis.
Dr. Buchowski also provided an additional statement. She answered “Yes,” to
the question whether plaintiff’s impairments would prevent her from working “back to
at least March 2008.” (Tr. 307). Dr. Buchowski stated that plaintiff was stable in a
chronic depressed and anxious state. “Full-time employment would almost certainly
cause deterioration of her mood into a very deeply depressed and anxious state.”
(emphasis in original).
III. The ALJ’s Decision
In the decision issued on December 10, 2012, the ALJ made the following
findings:
1.

Plaintiff met the insured status requirements of the Social Security Act
through December 31, 2010.

2.

Plaintiff has not engaged in substantial gainful activity between March 12,
2008, her alleged onset date, and December 31, 2010.

3.

Through December 31, 2010, plaintiff had the following severe
impairment: recurrent major depression.

4.

Through December 31, 2010, plaintiff did not have an impairment or
combination of impairments that meet or medically equal the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1.

5.

Through December 31, 2010, plaintiff had the residual functional capacity
to perform work at all exertional levels with the following nonexertional
limitations: She can at least understand, remember, and carry out
simple instructions, and nondetailed tasks (or unskilled work), and she
should not perform work that requires more than infrequent handling of
customer complaints.

6.

Through December 31, 2010, plaintiff was not capable of performing her
past relevant work.

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7.

Plaintiff was born on June 1, 1959, and was 51 years old, which is defined
as a younger individual age 18-49, on December 31, 2010.14

8.

Plaintiff has a Master of Arts degree with additional doctorate-level
classes and is able to communicate in English.

9.

Transferability of job skills os not material to the determination because
using the Medical-Vocational Rules as a framework supports a finding that
plaintiff is not disabled, whether or not she has transferrable skills.

10.

Through December 31, 2010, considering plaintiff’s age, education, work
experience, and RFC, there were jobs that existed in significant numbers
in the national economy that plaintiff could have performed, such as
industrial cleaner, kitchen helper, or housekeeper or cleaner.

11.

Plaintiff was not under a disability within the meaning of the Social
Security Act from March 12, 2008, through December 31, 2010.

(Tr. 18-28).
IV. Legal Standards
The Court must affirm the Commissioner’s decision “if the decision is not based
on legal error and if there is substantial evidence in the record as a whole to support
the conclusion that the claimant was not disabled.” Long v. Chater, 108 F.3d 185, 187
(8th Cir. 1997). “Substantial evidence is less than a preponderance, but enough so
that a reasonable mind might find it adequate to support the conclusion.” Estes v.
Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145,
1147 (8th Cir. 2001)). If, after reviewing the record, the Court finds it possible to
draw two inconsistent positions from the evidence and one of those positions
represents the Commissioner’s findings, the Court must affirm the decision of the

14

At age 51, plaintiff was actually classified as a person “closely approaching
advanced age,” not a “younger person.” 20 C.F.R. § 404.1563(d). While the age of
a younger person is not generally considered to be a factor in determining a claimant’s
ability to work, § 404.1563(c), for a person closely approaching advanced age, the
Social Security Administration “will consider that your age along with a severe
impairment(s) and limited work experience may seriously affect your ability to adjust
to other work.”
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Commissioner. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (quotations and
citation omitted).
To be entitled to disability benefits, a claimant must prove she is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D),
(d)(1)(A); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). The Commissioner
has established a five-step process for determining whether a person is disabled. See
20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009). “Each step
in the disability determination entails a separate analysis and legal standard.” Lacroix
v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
Steps one through three require the claimant to prove (1) she is not currently
engaged in substantial gainful activity, (2) she suffers from a severe impairment, and
(3) her disability meets or equals a listed impairment. Pate-Fires, 564 F.3d at 942.
If the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to steps four and five. Id.
“Prior to step four, the ALJ must assess the claimant’s residual functioning
capacity (‘RFC’), which is the most a claimant can do despite her limitations.” Moore,
572 F.3d at 523 (citing 20 C.F.R. § 404.1545(a)(1)).
assessment of the extent to which an individual’s

“RFC is an administrative
medically determinable

impairment(s), including any related symptoms, such as pain, may cause physical or
mental limitations or restrictions that may affect his or her capacity to do work-related
physical and mental activities.” Social Security Ruling (SSR) 96-8p, 1996 WL 374184,
*2. “[A] claimant’s RFC [is] based on all relevant evidence, including the medical

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records, observations by treating physicians and others, and an individual’s own
description of his limitations.”

Moore, 572 F.3d at 523 (quotation and citation

omitted).
In determining a claimant’s RFC, the ALJ must evaluate the claimant’s credibility.
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2002). This evaluation requires that the ALJ consider “(1) the
claimant’s daily activities; (2) the duration, intensity, and frequency of the pain; (3)
the precipitating and aggravating factors; (4) the dosage, effectiveness, and side
effects of medication; (5) any functional restrictions; (6) the claimant’s work history;
and (7) the absence of objective medical evidence to support the claimant’s
complaints.” Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quotation and
citation omitted).

“Although ‘an ALJ may not discount a claimant’s allegations of

disabling pain solely because the objective medical evidence does not fully support
them,’ the ALJ may find that these allegations are not credible ‘if there are
inconsistencies in the evidence as a whole.’” Id. (quoting Goff v. Barnhart, 421 F.3d
785, 792 (8th Cir. 2005)). After considering the seven factors, the ALJ must make
express credibility determinations and set forth the inconsistencies in the record which
caused the ALJ to reject the claimant’s complaints. Singh v. Apfel, 222 F.3d 448, 452
(8th Cir. 2000); Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
At step four, the ALJ determines whether a claimant can return to her past
relevant work, “review[ing] [the claimant’s] [RFC] and the physical and mental
demands of the work [claimant has] done in the past.” 20 C.F.R. § 404.1520(e). The
burden at step four remains with the claimant to prove her RFC and establish that she
cannot return to her past relevant work. Moore, 572 F.3d at 523; accord Dukes v.

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Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745,
750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to past
relevant work, the burden shifts at step five to the Commissioner to establish that the
claimant maintains the RFC to perform a significant number of jobs within the national
economy. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001). See also 20 C.F.R.
§ 404.1520(f).
If the claimant is prevented by her impairment from doing any other work, the
ALJ will find the claimant to be disabled.
V. Discussion
Plaintiff argues that (1) the ALJ improperly evaluated the opinion of her treating
physician, Dr. Buchowski, and (2) improperly assessed plaintiff’s residual functional
capacity (RFC).
A. Dr. Buchowski’s Opinion
As set forth above, Dr. Buchowski opined that plaintiff had significant limitations
in work-related abilities which the vocational expert testified precluded from
employment. The ALJ gave her opinion “little weight.” (Tr. 25).
Dr. Buchowski is a treating physician and thus her opinion is entitled to
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)). While a treating physician’s opinion is normally entitled
to great weight, such an opinion does not automatically control, because the record
must be evaluated as a whole. Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000)

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(internal quotations and citations omitted). Furthermore,“treating source opinions on
issues that are reserved to the Commissioner are never entitled to controlling weight.”
Soc. Sec. Ruling 96–5p, 1996 WL 374183, at *2 (July 2, 1996). Whether the ALJ
grants a treating physician’s opinion substantial or little weight, the regulations provide
that the ALJ must “always give good reasons” for the particular weight given to a
treating physician’s evaluation. Prosch, 201 F.3d at 1013 (quoting 20 C.F.R §
404.1527(d)(2)).
The ALJ gave little weight to Dr. Buchowski’s opinion because her medical source
statement completed in August 2011 “clearly states it is based on the claimant’s
current condition.”

See also Def. Brief at 7 [Doc. #13] (Dr. Buchowski’s opinion

specifically related to plaintiff’s “present” symptomology, “current” diagnoses, and
“current” medications, which were outside the relevant time period). (Tr. 25). This is
a cramped reading of the MSS, which clearly states that (1) plaintiff has a long and
complex psychiatric history; (2) she has been in psychiatric care for over the last 25
years; (3) she has been hospitalized three times for her mood disorder;15 (4) she “has
been barely stable for a couple of years now.” As evidence that the 2011 MSS was
limited to plaintiff’s functioning in 2011, the ALJ cited Dr. Buchowski’s treatment notes,
which showed “visits of increasing frequency beginning in August 2011, and clinical
signs of worsening depression consistent with [the] medical source statement of late
2011.” (Tr. 26). However, any ambiguity as to Dr. Buchowski’s meaning was cleared

15

The record establishes that plaintiff was hospitalized once more than 20 years
ago when she was in graduate school, and twice more in 2008. For the purposes of
the Paragraph B criteria of Listing 12.04, the ALJ determined that plaintiff’s
hospitalizations in 2008 constituted a single episode of decompensation of extended
duration, rather than multiple episodes. (Tr. 21). Plaintiff does not challenge this
determination.
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up by her November 2012 statement that plaintiff’s conditions had been present since
at least March 2008.16 It was error for the ALJ to substitute her opinion for that of the
treating physician. See Ness v. Sullivan, 904 F.2d 432, 435 (8th Cir. 1990) (ALJ erred
in substituting his opinion that plaintiff did not seem depressed at hearing for doctor’s
assessment of plaintiff’s mental health); see also Pate-Fires v. Astrue, 564 F.3d 935,
946-47 (8th Cir. 2009) (ALJs may not “play doctor”); Rohan v. Chater, 98 F.3d 966,
970 (7th Cir. 1996) (“ALJs must not succumb to the temptation to play doctor and
make their own independent medical findings.”).
Defendant’s assertion that the August 2011 MSS listed only “current”
medications is disingenuous: plaintiff took psychotropic medications throughout the
relevant time period. Furthermore, the regimen reflected in the August 2011 MSS was
in place on March 9, 2009, within the relevant period.

(Tr. 254).

Similarly, Dr.

Buchowski’s diagnosis of plaintiff remained constant throughout the relevant period up
to and including the August 2011 MSS.
The ALJ found that Dr. Buchowski’s statements were inconsistent with her
treatment notes, which reflected fairly normal mental status evaluations. However, Dr.
Buchowski’s notes also record plaintiff’s ongoing anxiety about leaving the house, poor
motivation, poor focus, and sleep issues. These observations are consistent with Dr.
Buchowski’s opinion that plaintiff would struggle with completing a normal work week
without interruption from her symptoms, or sustaining employment for longer than 6

16

The ALJ rejected Dr. Buchowski’s 2012 statement, apparently since it was
solicited by counsel. (Tr. 25) (giving little weight to statement “which was prepared
by [counsel] after I ruled the Vocational Expert could not testify about the residual
functional capacity as it was not made in reference to claimant’s condition prior to her
date last insured.”) The ALJ cannot have it both ways by first asserting that there is
an ambiguity with respect to the physician’s statement and then rejecting the
physician’s clarification when it is offered.
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months without decompensation. See Reed v. Barnhart, 399 F.3d 917, 922 (8th Cir.
2005) (rejecting ALJ’s determination treating psychiatrist’s treatment notes did not
support conclusions on MSS).

The ALJ determined that the treatment notes

“demonstrate a clear progression and improvement aside from complaints about
memory details and recall.” (Tr. 25).

However, “[i]t is possible for a person’s health

to improve, and for the person to remain too disabled to work.” Cox v. Barnhart, 345
F.3d 606, 609 (8th Cir. 2003). Plaintiff’s improved mood while taking five psychotropic
medications and receiving supportive therapy is not evidence that she can function in
a competitive work environment.
Dr. Buchowski’s opinion is also consistent with other medical evidence in the
record. Dr. Adam Sky provided psychiatric treatment to plaintiff between 2000 and
2008. (Tr. 230). In March 2008, despite treatment with Velafaxine, Bupropion, and
Trazodone, plaintiff’s depression deteriorated to the extent that she required inpatient
hospitalization. She thereafter underwent ECT treatments that produced “marginal
results.” (Tr. 230). In June 2008, Dr. Sky described plaintiff as doing poorly and she
was admitted to the hospital for a second time. (Tr. 232). At discharge, her mood was
“a little better,” and she was discharged to stay with her sister Nancy, rather than
going home alone. (Tr. 236). Dr. Isenberg noted that between July 2008 and July
2009, plaintiff required several changes to her psychotropic medications in order to
achieve stability.17 Finally, plaintiff saw or talked by telephone with her therapist Ms.
Smith-Foret multiple times a week.

17

The ALJ gave slight weight to Dr. Isenberg’s conclusions but noted that he
summarized the records correctly. (Tr. 26).
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Dr. Buchowski’s MSS is also consistent with those provided by Ms. Smith-Foret.
Although not an “acceptable medical source,” as defined in the Social Security
regulations, Ms. Smith-Foret’s observations “may . . . provide insight into the severity
of the impairment(s) and how it affects the individual’s ability to function.” Sloan v.
Astrue, 499 F.3d 883, 888 (8th Cir. 2007) (discussing SSR 06-03p). Dr. Buchowski
and Ms. Smith-Foret agree that plaintiff’s condition severely impairs her ability to
function, differing only with respect to the magnitude of that impairment.18 Finally, Dr.
Buchowski’s MSS is fully supported by the statement provided by plaintiff’s sister, who
spent 15 hours a week with her, drove her to appointments, cleaned her house and did
her grocery shopping.

Ms. Norton observed that plaintiff was no longer able to

concentrate enough to read, was increasingly secluded, and could stay up all night
when stressed by “a simple thing.” (Tr. 189).
The court finds that the ALJ did not give proper reasons for assigning little
weight to Dr. Buchowski’s opinions.
B. RFC Assessment
A claimant’s RFC is “the most a claimant can still do despite his or her physical
or mental limitations.” Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011) (internal
quotations, alteration and citations omitted). “The ALJ bears the primary responsibility

18

The ALJ discounted Ms. Smith-Foret’s opinion, in part, because she assigned
plaintiff an Axis I diagnosis of bipolar disorder, while Dr. Buchowski assigned Major
Depressive Disorder. (Tr. 26). Contrary to the ALJ’s assertion (see Tr. 26), Ms. SmithForet is not alone in diagnosing bipolar disorder because that was Dr. Sky’s diagnosis
for plaintiff as well. As Dr. Irvin and Dr. Buchowski both noted, however, the evidence
of a prior manic episode is somewhat equivocal. (Tr. 238, 264). Thus, there appears
to be a genuine dispute among the treating professionals. For the purposes of
determining whether plaintiff is disabled, however, the distinction is immaterial, as both
disorders can cause the severe limitations observed by Dr. Buchowski and Ms. SmithForet.
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for determining a claimant’s RFC and because RFC is a medical question, some medical
evidence must support the determination of the claimant’s RFC.”
omitted).

Id. (citation

The ALJ should obtain medical evidence that addresses the claimant’s

“ability to function in the workplace.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001)
(quoting Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000)). “However, the burden
of persuasion to prove disability and demonstrate RFC remains on the claimant.” Id.
Even though the RFC assessment draws from medical sources for support, it is
ultimately an administrative determination reserved to the Commissioner. Cox v.
Astrue, 495 F.3d 614, 619 (8th Cir. 2007) (citing 20 C.F.R. §§ 416.927(e)(2), 416.946
(2006)). “Because the social security disability hearing is non-adversarial, however,
the ALJ’s duty to develop the record exists independent of the claimant’s burden in this
case.” Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
The ALJ found that plaintiff has the RFC to work if she were limited to simple
instructions and nondetailed tasks and was required to handle customer complaints
infrequently. (Tr. 22). In reaching this RFC, she gave strong weight to the records of
Dr. Sky and Dr. Irvin which “noted significant improvement after brief periods of
treatment in 2008, to include the fact that the claimant was facing financial problems
as being the cause of her episode of decompensation.”

(Tr. 26). These records

establish only that plaintiff improved enough to be discharged from the hospital and
do not support the ALJ’s RFC determination. The ALJ also rejected Dr. Buchowski’s
MSS and thus no medical evidence supports the RFC determination.
VI. Conclusion
For the reasons discussed above, the Court finds that the Commissioner’s
decision is not supported by substantial evidence in the record as a whole.

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Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is reversed
and this matter is remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g)
for further proceedings.
A separate Judgment in accordance with this Memorandum and Order will be
entered this same date.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

Dated this 13th day of February, 2015.

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