Fletcher v. Colvin

Filing 27

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and the cause is REMANDED to the Commissioner for further proceedings consistent with this Memorandum and Order. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by Magistrate Judge John M. Bodenhausen on 6/30/15. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LAURA FLETCHER,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 4:14 CV 886 JMB

MEMORANDUM AND ORDER
Plaintiff Laura Fletcher (“Plaintiff”) brings this action under 42 U.S.C. §§ 405(g) and
1383(c)(3) for judicial review of the Commissioner’s final decision denying her applications for
Supplemental Security Income (“SSI”), under Title XVI of the Social Security Act, 42 U.S.C. §§
1381, et seq. All matters are pending before the undersigned United States Magistrate Judge,
with consent of the parties, pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the
decision of the Commissioner shall be reversed and the matter is remanded for proceedings
consistent with this Memorandum and Order.
I.

PROCEDURAL HISTORY & SUMMARY OF DECISION
Plaintiff filed an application for SSI benefits in January 2011, alleging a disability onset

date of January 1, 2011. After her application was denied on June 28, 2011, Plaintiff requested a
hearing before an Administrative Law Judge (“ALJ”), which was held on November 27, 2012.
Two witnesses testified at the hearing – Dr. Gerald Belchick, a vocational expert (“VE”), and
Plaintiff. Prior to the hearing, Plaintiff amended her onset date to June 18, 2012. On April 9,

2013, the ALJ issued an unfavorable, written decision, finding that Plaintiff was not under a
disability, as defined by the Social Security Act. (Tr. 10-19) 1
In denying Plaintiff’s claim of disability, the ALJ followed the familiar five-step
sequential evaluation process for determining whether Plaintiff was disabled within the meaning
of the Act. (Tr. 10-12) See 20 C.F.R. §§ 404.1520(a) and 416.920(a). At step one, the ALJ
found that Plaintiff was not engaged in substantial gainful activity since her alleged onset date.
At step two, the ALJ found that Plaintiff suffered from two severe impairments -- psychotic
disorder (NOS) and polysubstance abuse. No physical impairments were noted. (Tr. 12-13) At
step three, the ALJ concluded that Plaintiff’s mental impairments did not meet or equal the
criteria for a listed impairment. (Tr. 13-15) The ALJ found that Plaintiff had only mild
restrictions relative to the activities of daily living, moderate difficulties relative to social
functioning, and moderate difficulties with concentration, persistence, or pace. (Tr. 14)
At step four, the ALJ assessed Plaintiff’s residual functional capacity (“RFC”) as follows:
[T]he 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 able to understand, remember, and carry out at least simple
instructions and non-detailed tasks and to respond appropriately to supervisors
and co-workers in a task oriented setting where contact with others is casual and
infrequent. The claimant cannot have constant/regular contact with the general
public and cannot perform work which includes more than infrequent handling of
customer complaints. The claimant cannot perform work in an environment in
close proximity to alcohol/controlled substances.
(Tr. 15) In making this RFC assessment, the ALJ declined to give any weight to a medical
source statement completed by Dr. Jaron Asher on October 31, 2012. (Tr. 16-17) Dr. Asher was
Plaintiff’s treating psychiatrist. The ALJ also found Plaintiff’s credibility to be “weakened.”
(Tr. 17-18)

1

References to “Tr.” are to the administrative record filed by the Commissioner (ECF
No. 12-3).
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Plaintiff filed a timely request for review by the Appeals Council. On March 14, 2014,
the Appeals Council denied Plaintiff’s request (Tr. 1), leaving the ALJ’s April 9, 2013, decision
as the final decision of the Commissioner in this matter. Plaintiff has exhausted her
administrative remedies and the matter is properly before this Court.
In her request for judicial review, Plaintiff contends that the ALJ erred in declining to
give any weight to the medical source statement of Dr. Asher. (ECF No. 19 at 13) In her
argument, Plaintiff notes that the ALJ apparently misunderstood some of Dr. Asher’s
observations regarding the frequency of Plaintiff’s auditory hallucinations. (Id. at 23) The
Commissioner agrees that the ALJ made this mistake. (ECF No. 22 at 5-6) The Commissioner
contends, however, that the mistake does not require a remand.
Having reviewed the record, and in light of controlling legal standards, the Court
concludes that substantial evidence does not support the Commissioner’s decision. As explained
in detail below, the ALJ’s mistake regarding the frequency of Plaintiff’s hallucinations is
significant. The ALJ’s misunderstanding regarding Dr. Asher’s observation resulted in a finding
of an inconsistency where there was none. Correcting that mistake has the potential to impact
the proper weight to be given to Dr. Asher’s medical source statement, as well as the proper
assessment of Plaintiff’s credibility. Accordingly, the matter must be remanded for further
proceedings.
II.

SUMMARY OF RECORD 2
A.

General History and Characteristics of Plaintiff

At the time of her hearing, Plaintiff was 26 years old. Plaintiff has a lengthy history of
mental illness, dating back to when she was approximately ten years old. The record indicates

2

The undersigned has reviewed the entirety of the administrative record in resolving the
issues presented in this matter. The recitation of specific evidence in this Memorandum and
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that Plaintiff was initially diagnosed with depression. Over the years, Plaintiff has also been
diagnosed with schizophrenia. Plaintiff has a significant history of polysubstance abuse,
including the use of heroin, marijuana, and alcohol. Plaintiff completed high school at an
alternative high school. Plaintiff completed some college, as well as an EMT course. Plaintiff
has scant work history – working briefly in 2008 and again in 2009, with lifetime earnings of less
than $4,000. (Tr. 118, 120)
As reflected the record, Plaintiff has been treated by a number of psychiatrists over the
years. Plaintiff has also been hospitalized due to her mental illness and substance abuse. For
example, Plaintiff was hospitalized in September 2008 at St. John’s Mercy Medical Center due
to a “recent exacerbation of auditory hallucinations and social withdrawal.” (Tr. 194-214) In
June 2012, Plaintiff was hospitalized for acute opiate withdrawal. Upon her discharge, Plaintiff
received out-patient treatment and assistance at Places for People. Plaintiff amended her alleged
disability onset date to coincide with her discharge in June 2012.
B.

Summary of Administrative Hearing

On November 27, 2012, the ALJ conducted a hearing on Plaintiff’s case. Plaintiff was
represented by counsel at the hearing. Two witnesses testified during the hearing – Plaintiff and
Dr. Gerald Belchick, a VE. Plaintiff testified that she had about two years of college education.
(Tr. 26-27) Plaintiff explained that she had never worked a full-time job for six months or
longer. (Tr. 27) Plaintiff had completed opiate detox, followed by rehab in June 2012. (Tr. 2728) Plaintiff testified that she began seeing Dr. Asher after her prior psychiatrist had medical
problems. (Id.) Plaintiff explained that she has been “schizophrenic for years,” with symptoms
including visual, auditory, and tactile hallucinations. (Id.) At the time of her hearing, Plaintiff
advised she had not used opiates since her detox, and had not used marijuana since she was 18.

Order is intended to provide context to the Court’s decision.
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Plaintiff had, however, used alcohol. (Tr. 29) Plaintiff regularly attended NA meetings and was
receiving support from Places for People. (Tr. 29-30)
Dr. Belchick, the VE, heard Plaintiff’s testimony and was given an opportunity to
examine the record. The ALJ posed a single hypothetical question to Dr. Belchick. The ALJ
asked Dr. Belchick to consider a hypothetical claimant who was 25 years old, with no past
relevant work, and no physical restrictions. The hypothetical claimant also had the following
limitations: (1) the ability to understand, remember, and carry out at least simple instructions
and non-detailed tasks; (2) the ability to respond appropriately to supervisors and co-workers in a
task oriented setting where contact with others is casual and infrequent; (3) could not have
constant/regular contact with the general public; (4) could not perform work which includes
more than infrequent handling of customer complaints; and (5) could not perform work in an
environment in close proximity to alcohol/controlled substances. (Tr. 33)
In response to the ALJ’s hypothetical question, Dr. Belchick testified that such a claimant
would be capable of performing work as a housekeeper / hotel maid or kitchen helper, both of
which would be unskilled jobs, performed at the light level. (Tr. 33-34)
Plaintiff’s attorney posed several hypothetical questions to Dr. Belchick. First, Dr.
Belchick was asked to assume a hypothetical claimant with marked limitations in her abilities to:
(1) cope with normal work stress; (2) function independently; (3) behave in an emotionally stable
manner; (4) accept instructions and respond to criticism; (5) maintain socially acceptable
behavior; (6) understand and remember simple instructions; (7) make simple, work-related
decisions; (9) maintain attention to work tasks for up to two hours; (9) perform at a consistent
pace; (10) sustain an ordinary routine without special supervision; and (11) respond to changes in
the work setting. (Tr. 35) Dr. Belchick opined that such a person would not be employable.
(Id.)

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Plaintiff’s attorney also asked Dr. Belchick to consider a hypothetical claimant with the
same age, education, and work experience as Plaintiff, but with a medically determinable
impairment that would cause unpredictable, ten-minute interruptions (in addition to regular
breaks) on a daily basis. (Tr. 35-36) Dr. Belchick advised that a ten-minute interruption was
“right at the border,” and anything in excess of ten minutes per day would be a problem for an
unskilled worker. (Tr. 36) Plaintiff’s attorney then asked Dr. Belchick to consider the
ramifications of arriving late for work, unpredictably, once per week. Such a claimant, per Dr.
Belchick, would not be able to maintain employment. (Id.)
C.

Medical Evidence

The issue on before the Court relates to the opinions of Dr. Asher regarding Plaintiff’s
non-exertional limitations in his mental medical source statement. The parties agree that the ALJ
mischaracterized Dr. Asher’s observations regarding the frequency of Plaintiff’s hallucinations.
As explained below, the Court concludes that the ALJ erroneously relied on this
mischaracterization in declining to give any weight to Dr. Asher’s opinions. The relevant record
evidence is discussed below in the context of analyzing the ALJ’s consideration of Dr. Asher’s
opinions. 3
III.

LEGAL FRAMEWORK & STANDARD OF REVIEW
To be eligible for SSI under the Social Security Act, a plaintiff must prove that she is

disabled. See Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Sec’y of
Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Act defines disability as the
“inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or

3

The Court has thoroughly considered the entire record, including all of the medical
records filed in this matter. A detailed summary of the record is not necessary to resolving the
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can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
423(d)(1)(A), 1382c(a)(3)(A). An individual will be declared disabled “only if his physical or
mental impairment or impairments are of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §§
423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a plaintiff is disabled, the Commissioner engages in a five-step
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 14042 (1987). At step one, the Commissioner considers whether a claimant is engaged in substantial
gainful activity. If so, disability benefits are denied. At step two, the Commissioner decides
whether the claimant has a “severe” medically determinable impairment, or combination of
impairments, which significantly limits her ability to do basic work activities. If the claimant’s
impairment is not severe, then she is not disabled. If the impairment is severe, the Commissioner
then determines at step three whether such impairment meets or is equivalent to one of the
impairments listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. If a claimant’s impairment
meets or equals one of the listed impairments, she is conclusively disabled. At step four, the
Commissioner establishes whether the claimant’s impairment prevents her from performing her
past relevant work. If the claimant can perform such work, she is not disabled. Finally, if the
claimant is unable to perform her past work, the Commissioner continues to step five and
evaluates various factors to determine whether the claimant is capable of performing any other
work in the economy. The claimant is entitled to disability benefits only if she is not able to
perform other work.

particular issue presented for the Court’s consideration.

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The decision of the Commissioner must be affirmed if it is supported by substantial
evidence on the record as a whole. See 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389,
401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002). “Substantial Evidence is less
than a preponderance, but enough that a reasonable mind would find it adequate to support the
Commissioner’s conclusion.” Myers v. Colvin, 721 F.3d 521, 524 (8th Cir. 2013) (internal
quotations omitted). The “substantial evidence test,” however, is “more than a mere search of
the record for evidence supporting the Commissioner’s findings.” Coleman v. Astrue, 498 F.3d
767, 770 (8th Cir. 2007) (internal quotations omitted). “Substantial evidence on the record as a
whole … requires a more scrutinizing analysis.” Id. (internal quotations omitted).
To determine whether the Commissioner’s decision is supported by substantial evidence
on the record as a whole, the Court must review the entire administrative record and consider:
1.
2.
3.
4.
5.
6.

The credibility findings made by the ALJ.
The [plaintiff's] vocational factors.
The medical evidence from treating and consulting physicians.
The [plaintiff's] subjective complaints relating to exertional and
non-exertional activities and impairments.
Any corroboration by third parties of the [plaintiff's]
impairments.
The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
[plaintiff's] impairment.

Stewart v. Sec’y of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (internal
citations omitted). The Court also must consider any evidence which fairly detracts from the
Commissioner’s decision. See Coleman, 498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047,
1050 (8th Cir. 1999) (citation omitted). “If, after reviewing the entire record, it is possible to
draw two inconsistent positions, and the Commissioner has adopted one of those positions,” the
Commissioner’s decision must be affirmed. Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir.
2012). The decision may not be reversed merely because substantial evidence also could support
a contrary outcome. See Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
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IV.

ANALYSIS OF ISSUE PRESENTED
In her brief in support of her complaint (ECF No. 19), Plaintiff raises one issue for this

Court’s consideration. Plaintiff argues that the ALJ erred in declining to give any weight to
certain opinions of Dr. Asher. (Id. at 12) The Commissioner contends that the ALJ properly
discredited those opinions and, therefore, substantial evidence supports the Commissioner’s
denial of benefits.
The Court does not read the Commissioner’s brief as suggesting that Dr. Asher was not in
a treating relationship with Plaintiff. Further, the parties are in agreement that Plaintiff suffers
from severe non-exertional impairments, including a psychotic disorder and polysubstance
abuse. More importantly, Plaintiff and the Commissioner agree that the ALJ misread or
misunderstood Dr. Asher’s statement regarding the frequency of auditory hallucinations
experienced by Plaintiff. As explained below, this misunderstanding or mistake is not harmless.
A.

Summary of Dr. Asher’s Treatment History and Opinion

Dr. Asher was one of Plaintiff’s treating physicians. 4 Dr. Asher, and the staff at Places
for People, saw plaintiff numerous times between 2011 and 2012. (Tr. 277-327) Consistent with
the other medical evidence in the record, Plaintiff reported problems with hallucinations,
including auditory hallucinations. Over the course of his treatment, Dr. Asher consistently
diagnosed Plaintiff as suffering from schizophrenia (undifferentiated type) and polysubstance
abuse. On June 6, 2012, Plaintiff reported to Dr. Robinson that the voices in her head
continued, even though she was taking an antipsychotic (Goedon) at a rate above the safe
maximum. (Tr. 307) Plaintiff also reported that when she stopped using heroin, the voices got
worse. (Id.)

4

The record indicates that Plaintiff had seen several psychiatrists, including Dr. Gordon
Robinson. The record also indicates that Plaintiff stopped seeing Dr. Robinson due to that
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Dr. Asher saw Plaintiff several times after she completed hospitalization for opiate
withdrawal and residential support from Queen of Peace Center. On July 25, 2012, Plaintiff
reported to Dr. Asher that, although the voices in her head were better, “she believes that others
can hear her thoughts telepathically and they put voices in her head like death threats because
they are annoyed at the thoughts she is having.” (Tr. 315) On August 29, 2012, Plaintiff
reported she continued “to have voices that bother her.” Dr. Asher noted that Plaintiff “closes
her eyes and seems somewhere else for a while.” (Tr. 319) Information from the team
monitoring Plaintiff at Places for People reported to Dr. Asher that Plaintiff had “remained
sober.” (Id.) On October 24, 2012, Plaintiff was still complaining about voices, although it was
better.
On October 30, 2012, Dr. Asher completed a Mental Medical Source Statement (“Mental
MSS”) in anticipation of Plaintiff’s claim for Social Security benefits. Dr. Asher concluded that
Plaintiff suffered from marked limitations in all aspects of daily living, including her ability to
cope with normal work stress and behaving in an emotionally stable manner. (Tr. 324) Dr.
Asher concluded that Plaintiff suffered from extreme or marked limitations in all aspects of
social functioning. According to Dr. Asher, Plaintiff exhibited extreme limitations regarding her
ability to relate to social situations and interact with the general public, and marked limitations
regarding her ability to accept instructions/respond to criticism, and maintain socially acceptable
behavior. (Id.) Dr. Asher also concluded that Plaintiff had marked limitations regarding
concentration, persistence, or pace, with an extreme limitation in her ability to work in
coordination with others. (Tr. 325) Dr. Asher also opined that Plaintiff would have persistent
problems with work interruptions, tardiness, and absenteeism in a work setting. (Id.)

physician’s own health problems. (Tr. 301)

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Dr. Asher concluded that it was “hard to know if [Plaintiff] has eliminated her substance
use completely but it does seem better.” (Id. at 326; 327) Dr. Asher noted that Plaintiff
“[c]onstantly reports hallucinations,” and that she is “[o]n antipsychotics that are able to give her
some subjective relief only. Whenever I see her, at least once she appears to be responding to
stimuli that aren’t there. This impairs her concentration so much that I can’t see how she could
maintain gainful employment at all.” (Tr. 326)
The ALJ declined to “give any weight to the medical source statement completed by Dr.
Asher on October 30, 2012 ….” (Tr. 16) As noted by the Commissioner (ECF No. 22 at 5-6),
the ALJ provided numerous reasons for completely discounting Dr. Asher’s opinions relating to
Plaintiff’s functional limitations. (Tr. 16-17) For example, the ALJ concluded that Dr. Asher
was inconsistent in his statements regarding “the extent of [Plaintiff’s] drug use and the [effect]
it had on her functioning.” (Tr. 16) The ALJ believed Dr. Asher was inconsistent because Dr.
Asher opined that Plaintiff’s functional limitations were not caused by substance abuse because
she was maintaining sobriety, but also stated that it was hard to know whether Plaintiff had
“reduced her substance abuse.” (Id.) The ALJ suggested that Dr. Asher should have ordered a
drug screen to confirm his belief that Plaintiff’s functional limitations were not caused by
substance abuse. (Id.)
The medical record, however, would seem to corroborate Dr. Asher’s conclusion that
Plaintiff’s mental health problems existed despite her substance abuse history. In fact, the
medical record indicates that Plaintiff’s mental health issues, including her history of auditory
hallucinations existed when she was not abusing drugs. For example, Plaintiff’s father reported
that Plaintiff suffered from problems, including depression/bi-polar disorder since she was ten
years old. (Tr. 140) Plaintiff was admitted to St. John’s Mercy Medical Center in September
2008 for “acute onset of psychotic symptoms characterized by auditory hallucination ….” (Tr.

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195) Urine drug screening tests were conducted on Plaintiff by St. John’s Mercy at that time.
Those tests were uniformly negative. 5 (Tr. 208-09) In addition, other record evidence indicates
that, although Plaintiff has a history of substance abuse, she did not start abusing heroin until
after she began experience auditory hallucinations. 6 Therefore, the fact that Dr. Asher did not
order a drug screen to confirm whether Plaintiff might be using drugs does not provide a
significant basis for discounting Dr. Asher’s opinion.
Furthermore, the ALJ discussed the potential impact of Plaintiff’s substance abuse prior
to his consideration of the specific functional limitations indicated in Dr. Asher’s medical source
statement. When the ALJ considered the specific functional limitations, the ALJ relied on
inconsistencies in Dr. Asher’s treatment notes, as well as other record evidence, to entirely
discount Dr. Asher’s opinions.
One of the important inconsistencies the ALJ perceived was that Dr. Asher’s treatment
notes were inconsistent regarding the frequency with which Plaintiff experienced hallucinations.
The ALJ found that Dr. Asher’s notes “clearly show that [Plaintiff] had significant improvement
in her condition ….” (Tr. 17) In construing those notes, the ALJ next noted that “Dr. Asher
stated that [Plaintiff] reported ‘constant hallucinations,’ and yet he acknowledged that he had
only observed her on one occasion to be responding to some stimuli that wasn’t there.” (Id.)
Both parties agree that this is a mischaracterization of the record with respect to Dr. Asher’s

5

Plaintiff’s urine was screened for amphetamines, opiates, cannabinoids, and cocaine
metabolites, among other drugs. Plaintiff was admitted on September 11, 2008, and the drug
screen was conducted on September 14, 2008. Plaintiff was discharged on September 17, 2008.
(Tr. 208) When Plaintiff was admitted to St. Mary’s Health Center in June 2012 for acute opiate
withdrawal, her drug screen detected opiates, but no other drugs were detected. (Tr. 268-76)
6
For example, Plaintiff told Dr. Robinson that she started abusing heroin when the voices
started. (Tr. 239-40) She advised the staff at Places for People, including Dr. Asher, that she
started abusing heroin because she wanted the voices to go away. (Tr. 289)

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observations. In fact, Dr. Asher’s observed that, on every occasion in which he had seen
Plaintiff, she appeared “at least once” to “respond[] to stimuli that aren’t there.” (Tr. 326)
The ALJ also discredited Plaintiff’s subjective complaints relating to the impact of
auditory hallucinations for several reasons. (Tr. 17) These reasons included Plaintiff’s
testimony and demeanor at the hearing, her poor work history, an alleged inconsistent statement
regarding her educational history, 7 and a lack of proof that she was no longer abusing drugs.
(Id.) It is not clear from the record, however, whether the ALJ’s analysis was influenced by his
belief that Dr. Asher had only observed Plaintiff responding to hallucinations on one occasion.
The ALJ’s mistaken understanding of Dr. Asher’s observations has a potentially
significant ripple effect because a correct understanding could alter the ALJ’s RFC
determination. Moreover, the ALJ did not specifically address other record evidence that may
have been consistent or inconsistent with Dr. Asher’s opinions.
A claimant’s RFC is the most that claimant can do despite their limitations. 20 C.F.R. §
404.1545(a)(1). In determining a claimant’s RFC, the ALJ should consider “all the evidence in
the record, including the medical records, observations of treating physicians and others, and an
individual’s own description of [her] limitations.” Krogmeier v. Barnhart, 294 F.3d 1019, 1024
(8th Cir. 2002) (internal quotations omitted). While the RFC determination occurs at step four,
where Plaintiff has the burden of proof, the Eighth Circuit has explained that the ALJ has
primary responsibility for determining the RFC. Id.
Thus, to determine Plaintiff’s RFC, the ALJ must at least consider her treating
physician’s opinion(s). Under the Commissioner’s regulations, a treating physician’s opinion is

7

The Court agrees that one medical record indicates that Plaintiff reported to Dr.
Robinson that she had more education than she acknowledged during her hearing. The ALJ used
this discrepancy in discrediting Plaintiff. The entire record, however, includes numerous
instances in which Plaintiff reports an educational history that is largely consistent with her
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ordinarily afforded controlling weight. See 20 C.F.R. § 404.1527. “An ALJ may discount or
even disregard the opinion of a treating physician where other medical assessments are supported
by better or more thorough medical evidence, or where the treating physician renders
inconsistent opinions that undermine the credibility of such opinions.” Perkins v. Astrue, 648
F.3d 892, 897-98 (8th Cir. 2011) (internal quotations omitted). “Even if the … opinion is not
entitled to controlling weight, it should not ordinarily be disregarded and is entitled to substantial
weight.” Samons v. Astrue, 497 F.3d 813, 818 (8th Cir. 2007).
In the present case, the ALJ completely discounted Dr. Asher’s opinions regarding
Plaintiff’s functional limitations. The ALJ did not cite to “other medical assessments [that] are
supported by better or more thorough medical evidence.” Perkins, 648 F.3d at 897-98. Rather,
the ALJ noted perceived inconsistencies in Dr. Asher’s treatment notes as a significant reason for
discounting Dr. Asher’s opinions. As indicated above, however, even the Commissioner
acknowledges that the ALJ incorrectly characterized at least one aspect of Dr. Asher’s
observations/treatment notes. This is not a mistake that can be easily ignored. It is possible that
the ALJ would give some weight, perhaps even substantial weight, to Dr. Asher’s opinions upon
accurately considering Dr. Asher’s observations regarding the frequency of Plaintiff’s
hallucinations. Likewise, with a correct understanding of the medical evidence, the ALJ might
not discount Plaintiff’s subjective complaints as steeply. In either case, the ALJ would also be
required to reconsider the limitations to be included in Plaintiff’s RFC.
For these reasons, the Court cannot conclude that the ALJ’s decision regarding Plaintiff’s
functional limits is supported by substantial evidence in the record as a whole.

testimony. (Tr. 205, 250, 280, 292)

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VII.

CONCLUSION
For the foregoing reasons, the Court concludes that the Commissioner’s adverse decision

is not supported upon substantial evidence on the record as a whole and the decision of the
Commissioner should be reversed. In particular, the Court concludes that the ALJ erred in
construing Dr. Asher’s treatment notes with respect to the frequency of Plaintiff’s hallucinations.
Consequently, the decision to completely discredit Dr. Asher’s opinions rested, at least in part,
on a faulty premise. Similarly, the decision to discount Plaintiff’s subjective complaints likewise
rested, at least in part, on a faulty premise. The Court cannot presume that the ALJ’s mistake
had no influence on how he weighed the evidence.
Upon remand, the Commissioner shall the consider opinions in Dr. Asher’s mental
medical source statement in light an accurate account of Dr. Asher’s observations regarding the
frequency of Plaintiff’s hallucinations. The Commissioner shall also reconsider Plaintiff’s
credibility in light of a correct consideration of Dr. Asher’s observations.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and
the cause is REMANDED to the Commissioner for further proceedings consistent with this
Memorandum and Order.
A separate Judgment in accordance with this Memorandum and Order is entered this
same date.
Dated this _30th_ day of June, 2015.

/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE

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