Jones v. Colvin

Filing 23

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and the case is REMANDED to the Commissioner for further development of the record. A separate judgment will accompany this Order. Signed by District Judge Audrey G. Fleissig on 2/24/2016. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WENDELL JONES,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 4:15-cv-00449-AGF

MEMORANDUM AND ORDER
This action is before this Court for judicial review of the final decision of the
Commissioner of Social Security finding that Plaintiff Wendell Jones was not disabled
and, thus, not entitled to disability insurance benefits under Title II of the Social Security
Act, 42 U.S.C. §§ 401, et seq., or supplemental security income under Title XVI of the
Act, 42 §§ 1381, et seq. For the reasons set forth below, the decision of the
Commissioner shall be reversed and the case remanded for further proceedings.
Plaintiff, who was born on December 5, 1961, protectively filed applications for
disability benefits and supplemental security income on January 9, 2012, alleging an
amended disability onset date of June 16, 2011,1 due to both mental and physical2

1

Plaintiffs’ applications initially alleged a disability onset date of February 1, 2009,
but Plaintiff amended his applications to allege an onset date of June 16, 2011. (Tr. at
172, 176, 206.)

impairments. The Social Security Administration denied Plaintiff’s claims on February
3, 2012. Plaintiff filed a request for a hearing before an administrative law judge (“ALJ”)
on March 23, 2012. Following a hearing on June 18, 2013, the ALJ issued a written
decision on August 19, 2013, upholding the denial of benefits. Plaintiff then requested
review of the ALJ’s decision by the Appeals Council; the request was denied on January
8, 2015. Thus, the decision of the ALJ stands as the final decision of the Commissioner.
See Sims v. Apfel, 530 U.S. 103, 107 (2000).
Plaintiff argues that the ALJ’s decision is not supported by substantial evidence in
the record as a whole. Specifically, Plaintiff argues that the ALJ failed to give proper
weight to the medical opinion of Plaintiff’s treating psychiatrist, Eve Lipschitz, M.D..
BACKGROUND
Work History and Application Forms
Plaintiff represented on his application forms that he worked from 1990 to 2008 as
a bus driver, laborer, and laundry worker, with his longest employment being from 1990
to 2002 as a bus driver for a transportation company. He indicated that he stopped
working “[b]ecause of [his] condition(s).” (Tr. 211.)
On a Function Report dated January 25, 2011, Plaintiff wrote that he lived at a
homeless shelter and described his typical daily activities as “walk streets and attend
groups and [doctor appointments] at VA.” (Tr. 225.) Plaintiff reported that since his
illness began to affect him, he could no longer work or maintain financial stability or

2

As Plaintiff’s legal arguments relate only to his mental impairments, this
Memorandum and Order does not discuss Plaintiff’s physical impairments.
2

steady housing. He also reported that his condition affected various abilities, including
memory, completing tasks, concentration, understanding, following instructions, and
getting along with others. (Tr. 226-30.)
Medical Record
Between June 2011 and January 2012, Plaintiff was treated by psychiatrist
Antonina Gesmundo, M.D., at a Veteran’s Administration (“VA”) Medical Center. On
June 16, 2011, Dr. Gesmundo diagnosed Plaintiff with bipolar disorder, depression, and
alcohol and cocaine abuse; she observed that Plaintiff had an abnormally depressed mood
and affect and that his concentration was “not good.” On that date, Plaintiff denied
having delusions, hallucinations, or suicidal or aggressive thoughts, and none were noted
by Dr. Gesmundo. Dr. Gesmundo assigned Plaintiff a Global Assessment of Functioning
(“GAF”) score of 50.3 (Tr. 570-71.)
Dr. Gesmundo treated Plaintiff again on August 18, 2011. Plaintiff reported that
his sleep was poor and that he heard voices that he could not make out, but which made
him angry and sad. Plaintiff’s mental status examination at this time revealed an
abnormal affect and poor concentration. (Tr. 509-10.)

3

The GAF, or Global Assessment of Functioning, is a numeric scale ranging from
zero to one hundred used to rate social and psychological functioning. Diagnostic and
Statistical Manual of Mental Disorders, 32 (4th ed. Am. Psychiatric Ass’n 1994) (DSM—
VI). A GAF of 41 to 50 indicates the individual has “[s]erious symptoms . . . or any
serious impairment in social, occupational, or school functioning . . . .” Id. However,
“[i]n recent years, the agency has recognized, and [the Eighth Circuit has] noted, that
GAF scores have limited importance.” Nowling v. Colvin, No. 14-2170, 2016 WL
690821, at *3 (8th Cir. Feb. 22, 2016).
3

On September 15, 2011, Plaintiff attended a “peer support” meeting at the VA
Medical Center. A report from that meeting indicates that Plaintiff was relaxed and
comfortable, appeared clean and neat, was cooperative, and demonstrated good hygiene.
(Tr. 483.)
On October 21, 2011, Plaintiff reported to Dr. Gesmundo that he was doing better,
that he remained sober from alcohol and cocaine, and that he was not as depressed.
Although Plaintiff reported that his sleep was still poor and his concentration was not
good, Dr. Gesmundo’s form stated that Plaintiff was alert and oriented with good
concentration. However, Dr. Gesmundo observed that Plaintiff’s mood and affect were
still abnormal, and that Plaintiff said he heard voices talking to each other. (Tr. 442-43.)
Plaintiff met with a vocational rehabilitation specialist at the VA Medical Center,
Rebecca Miles, M.S.W., on December 28, 2011. Miles noted that Plaintiff’s thoughts
were often scattered and that he became visibly agitated when he was told he was early
for his appointment. Miles also noted that Plaintiff appeared to have limited insight into
his diagnoses, but that Plaintiff admittedly had not taken his medication. (Tr. 367-69.)
Plaintiff also stated that he was interested in obtaining part-time work. (Tr. 370.)
On November 29, 2011, Plaintiff began weekly individual psychotherapy with
Mark F. Heiland, Ph.D. Dr. Heiland had previously worked with Plaintiff in a
mindfulness-based coping skills group at the VA Medical Center. Plaintiff reported
struggling with racing thoughts, which made sleep especially difficult for him. He also
reported a recent manic episode that lasted about a week, but said that he had been
depressed for the previous several days. Plaintiff said that his psychiatric medications
4

had initially been helpful but were not anymore. Dr. Heiland diagnosed Plaintiff at this
time with bipolar disorder. (Tr. 392-93.)
On January 11, 2012, Plaintiff again reported to Dr. Gesmundo that he remained
sober but that his sleep was poor, his mood was depressed, his concentration was “not
good,” and he heard voices, though he refused to discuss them. Dr. Gesmundo again
assessed a GAF score of 50. (Tr. 342-43.)
Plaintiff also continued seeing Dr. Heiland in January and February of 2012. In
January of 2012, Dr. Heiland observed that Plaintiff participated fully in group therapy
(Tr. 353), and during a visit in February of 2012, Dr. Heiland reported that Plaintiff had
good memory, but that he had disordered thoughts and was distracted. (Tr. 712.)
On February 2, 2012, state agency psychologist Ricardo Moreno, Psy.D.,
completed a Psychiatric Review Technique Form assessing Plaintiff. Dr. Moreno did not
examine Plaintiff but reviewed his medical records to date. Dr. Moreno opined that
Plaintiff had mild restriction in activities of daily living, and moderate difficulties in the
categories of social functioning and concentration, persistence, or pace. Dr. Moreno
assessed no episodes of decompensation and said that it appeared that Plaintiff was
“capable of obtaining some simple work skills.” (Tr. 619-21.)
On the same date, Dr. Moreno completed a Mental Residual Functional Capacity
Assessment. Dr. Moreno assessed Plaintiff to have multiple moderate limitations in
understanding and remembering, sustaining concentration and persistence, interacting
socially, and adapting to his environment, but no marked limitations in these or any other
category. (Tr. 623-24.) Dr. Moreno again concluded that Plaintiff appeared capable of
5

“performing some simple work tasks.” (Tr. 625.) Dr. Moreno added that Plaintiff would
benefit from some social restrictions and that he should avoid work with easy access to
alcoholic substances. (Tr. 625.)
On February 16, 2012, Plaintiff began treatment with VA psychiatrist, Eve
Lipschitz, M.D. Dr. Lipschitz continued to treat Plaintiff through at least April 25, 2013,
and she personally evaluated Plaintiff 13 times in this 14-month period. (Tr. 649-51,
706-14.)
During her first visit with Plaintiff on February 16, 2012, Dr. Lipschitz observed
that Plaintiff insisted on wearing his winter coat indoors despite complaining that he felt
too hot; he averted his eyes and intermittently peered at the doctor suspiciously; and he
was “extremely suspicious” of the stress balls on the doctor’s desk, would not touch or
get too close to them, and kept checking to see if they had moved. (Tr. 711-12.)
Plaintiff also reported that he heard voices—or “death angels”—that made his head hurt
and would not leave him alone, and he reported consistently impaired sleep. (Tr. 71011.) Although Dr. Lipschitz noted that Plaintiff had good memory and normal speech,
she also observed that Plaintiff had impaired concentration and appeared to be distracted
by stimuli, and that Plaintiff had a dysphoric mood, labile affect, disordered thought, and
tenuous insight and judgment. (Tr. 712-14.) Dr. Lipschitz diagnosed Plaintiff with
schizoaffective disorder, bipolar type, and a history of substance abuse, and she assessed
a GAF score of 45. (Tr. 712.)
In subsequent visits, Dr. Lipschitz noted that Plaintiff’s mood and anxiety were
improving and that his prescribed medication, Abilify, was helping, but she also observed
6

that Plaintiff’s presentation was “still rather inappropriate,” that Plaintiff was “most
restless/fidgety,” and that Plaintiff’s sleep and concentration were still impaired as well.
(Tr. 700-03.)
Likewise, in February and March of 2012, Dr. Heiland observed Plaintiff to have
paranoid ideation, pressured speech, and tangential thoughts. (Tr. 1531, 1559.) Dr.
Heiland further stated that Plaintiff’s “[g]lobal social functioning [was] impaired,” as he
was generally fearful of others, though he was capable of developing trust with some
family members and VA providers. (Tr. 1531.) Dr. Heiland noted that Plaintiff was not
always fully compliant with his medications and that Plaintiff’s compliance with
medications was complicated by their side-effects and by Plaintiff’s homelessness, but
that he appeared to put forth his best effort. (Tr. 1524, 1554-55.) Dr. Heiland continued
to diagnose Plaintiff with bipolar disorder until April of 2012. (Tr. 1515-16.)
On April 16, 2012, Plaintiff reported finding super glue on the street and—
considering it to be a gift from God—used it to repair two of his teeth. Accordingly, Dr.
Heiland assessed Plaintiff to have impaired judgment and insight, but Dr. Heiland noted
that Plaintiff understood that he needed a dental appointment. (Tr. 1497-98.) Dr.
Heiland changed his diagnosis of Plaintiff to schizoaffective disorder during this month.
(Tr. 1485-86.)
On April 19, 2012, after learning about the super glue incident, Miles, Plaintiff’s
vocational rehabilitation specialist at the VA, noted that Plaintiff had “no insight into his
actions.” Miles also noted that Plaintiff was continuing to look for work and follow up

7

with job leads, but that Plaintiff was seeking jobs outside of his skills or too far away.
(Tr. 1486.)
Plaintiff continued to meet with Dr. Heiland and work on coping strategies from
April through May of 2012, with some progress reported. (Tr. 1462-63, 1471-73, 148183.)
On May 29, 2012, Plaintiff also began receiving regular psychosocial support
from VA Medical Center social worker, Kendra Isadore. Isadore saw Plaintiff at least 19
times over an eight-month period. In her first visit on May 29, 2012, Isadore observed
Plaintiff to have some difficulty concentrating but noted that his mental status was
otherwise within normal limits. (Tr. 1444-45.)
On June 25, 2012, Isadore noted that Plaintiff had limited insight and judgment,
and that he was tangential at times but otherwise appropriate. (Tr. 1384.) Likewise, in
June of 2012, Dr. Heiland noted that Plaintiff still struggled with anxious and racing
thoughts, but that Plaintiff appeared to respond to cognitive interventions. (Tr. 1387-89,
1409-10, 1424-25.)
On July 3, 2012, Plaintiff reported auditory hallucinations to Dr. Heiland and said
that the voices sometimes told him to jump out of his window but that he did not intend
to obey them. Plaintiff also reported that he hid in the bathroom for fear that people
across the street were watching him. (Tr. 1354-55.)
On July 11, 2012, Dr. Lipschitz observed Plaintiff to be anxious, scattered, and
dysphoric. Plaintiff reported to Dr. Lipschitz that he was wary of his new roommate and
“extremely worried” about his ill sister’s new caretaker, and that he was afraid to sleep
8

near either of them. Plaintiff also reported that he feared retaliation from Dr. Heiland for
missing an appointment with him. Dr. Lipschitz noted that Plaintiff’s guilt and
psychomotor activity were increased, and that his interest, energy, and appetite were
decreased. Dr. Lipschitz increased Plaintiff’s dosage of Abilify at this time. (Tr. 69091.)
On August 15, 2012, Plaintiff reported to Dr. Lipschitz that he blocked the door to
his residence with furniture, fearing that his previous roommate would return, and
sometimes slept in his bathtub to get away from the noises outside. Dr. Lipschitz
observed that Plaintiff had an abnormally anxious and dysphoric mood and affect, and
vaguely paranoid delusions, and that he alluded to “seeing dragons” but would not
elaborate. Plaintiff also told Dr. Lipschitz that he had used “nail glue” to repair one of
his teeth. Dr. Lipschitz expressed concern about the safety of this act, but Plaintiff
insisted he was fine. (Tr. 683-84.)
From July through September of 2012, Dr. Heiland also noted that Plaintiff
continued to have racing or irrational thoughts, pressured speech, and paranoia. (Tr.
1196-97, 1199-1200, 1224-25, 1242-43, 1327-28.)
On September 5, 2012, Dr. Lipschitz observed that Plaintiff was anxious,
dysphoric, labile, and a bit disorganized, and that his speech was “loose/tangential.”
Plaintiff was also very uneasy about a new roommate and planned to sleep in the lobby of
Dr. Lipschitz’s office. Plaintiff’s interest and concentration were decreased on this date,
but his energy was normal. (Tr. 677.)

9

On September 12, 2012, Dr. Heiland noted that Plaintiff continued to experience
paranoid ideation and social anxiety, and Plaintiff reported that he still slept much of the
night in his bathtub for privacy. However, Dr. Heiland observed that Plaintiff was
willing to try social activities and that Plaintiff could interact comfortably with others
when there was no perceived threat. (Tr. 1197.)
On October 24, 2012, Isadore, Plaintiff’s social worker, noted that in her meeting
with Plaintiff, Plaintiff exhibited some paranoia regarding his apartment managers, and
Plaintiff talked throughout the entire session, with trouble concentrating and tangential
and confused thinking. (Tr. 1102.) Likewise, in Plaintiff’s visits with Dr. Lipschitz in
October and November of 2012, Dr. Lipschitz observed Plaintiff to be anxious and
apparently responding to visual hallucinations. (Tr. 673, 671.) On November 2, 2012,
Dr. Lipschitz changed Plaintiff’s medication to Ziprasidone. (Tr. 672).
Thereafter, on November 21, 2012, Dr. Lipschitz noted that Plaintiff reported less
trouble with hallucinations and appeared less paranoid and anxious. (Tr. 669.) On
December 18, 2012, Dr. Lipschitz observed Plaintiff still to be dysphoric and anxious,
but said that Plaintiff was more organized and a bit less anxious than before. (Tr. 665.)
Isadore consistently observed Plaintiff to be tangential and suspicious, with
paranoia, disorganized thoughts, and limited insight and judgment in her visits with
Plaintiff from October of 2012 through February of 2013. (Tr. 957, 1006, 1051, 1066,
1102.)
From February 4, 2013 through May 31, 2013, Plaintiff engaged in psychotherapy
with Herbert Lomax, Ph.D. On March 4, 2013, Dr. Lomax noted that Plaintiff was
10

diagnosed with bipolar affective disorder and major depression, and that he did not
appear to be at imminent risk of harm to himself or others. Dr. Lomax observed Plaintiff
to have decreased interest, energy, and concentration. (Tr. 662-63.)
In February and March, 2013, Plaintiff also participated in skills classes and group
discussion at the VA Medical Center, at which he was reported to appear clean and neat,
to demonstrate good hygiene, to be attentive and cooperative, and to be, at times,
talkative. (Tr. 903, 912, 920, 935, 939.)
After an extended personal leave of absence, Dr. Lipschitz treated Plaintiff again
on March 25, 2013. Plaintiff reported continuing auditory hallucinations and paranoia,
but declined a medication increase. Dr. Lipschitz observed Plaintiff to have decreased
interest, energy, concentration, and psychomotor activity. Dr. Lipschitz’s diagnoses of
Plaintiff as of this date were schizoaffective disorder, and polysubstance dependence in
sustained full remission.4 (Tr. 657-61.)
On April 4, 2013, Dr. Lomax noted that Plaintiff appeared to be sad due to the
illness of his sister, that Plaintiff responded to inquiry in monosyllables, and that Plaintiff
reported side effects of drowsiness and lethargy due to a change in his psychotropic
medications. Dr. Lomax also observed Plaintiff to have decreased interest, energy, and
concentration. Dr. Lomax added that Plaintiff voiced willingness to go to the emergency
room in the event of a crisis. (Tr. 652-53.)

4

Plaintiff tested positive for cocaine on June 26, 2012, but his drug screens for the
next 11 months were negative. (Tr. 723.)
11

Dr. Lipschitz last treated Plaintiff on April 25, 2013. (Tr. 649-51.) At that time,
Dr. Lipschitz observed Plaintiff to have decreased energy, interest, concentration, and
psychomotor activity. (Tr. 650.) However, Plaintiff reported that his auditory
hallucinations had quieted on the Ziprasidone. (Tr. 651.)
Plaintiff continued to visit Dr. Lomax in May 2013. On May 7, 2013, Dr. Lomax
noted that Plaintiff had been compliant with his psychotropic medications, which Plaintiff
considered beneficial in symptom management. (Tr. 648.) Likewise, on May 31, 2013,
Dr. Lomax noted that Plaintiff’s mood and affect appeared to be stable on that day and
that Plaintiff seemed more optimistic than in previous presentations. (Tr. 647.) But Dr.
Lomax added that Plaintiff was prone to suicidal ideations during periods of excessive
stress, and in both of these May 2013 appointments, Dr. Lomax continued to note that
Plaintiff had decreased interest, energy, and concentration. (Tr. 646-68.)
On June 4, 2013, Dr. Lipschitz completed a mental medical source statement on
behalf of Plaintiff. In her medical source statement, Dr. Lipschitz found that, within the
category of activities of daily living, Plaintiff had marked limitations in coping with
normal work stress and behaving in an emotionally stable manner, and a moderate
limitation in functioning independently. (Tr. 719.) In the category of social functioning,
Dr. Lipschitz found that Plaintiff had a marked limitation in accepting instructions and
responding to criticism and moderate limitations in relating in social situations,
interacting with the general public, and maintaining socially acceptable behavior. Id. In
the category of concentration persistence, and pace, Dr. Lipschitz found that Plaintiff had
marked limitations in maintaining attention to work tasks for up to two hours, performing
12

at a consistent pace, sustaining an ordinary routine without special supervision,
responding to changes in work setting, and working in coordination with others; and that
Plaintiff had moderate limitations in understanding and remembering simple instructions
and making simple work-related decisions. (Tr. 720.) Dr. Lipschitz wrote that she
believed Plaintiff’s work would be interrupted two to three times per week due to his
impairments. Id.
As part of her medical opinion, Dr. Lipschitz also provided a narrative explanation
for her diagnoses of Plaintiff’s mental impairments. She wrote that Plaintiff had spells of
low and high mood, along with psychotic symptoms such as paranoia and auditory and
visual hallucinations, all of which interfered with his personal relationships and his
ability to maintain gainful employment. (Tr. 721.)
Evidentiary Hearing of June 18, 2013 (Tr. 67-94)
The ALJ held a hearing in this matter on June 18, 2013. Plaintiff testified and was
represented by counsel. Tracy Young, a vocational expert, also testified at the hearing.
(Tr. 88.)
1.

Plaintiff’s testimony (Tr. 78-88)

At the time of the hearing, Plaintiff was 51 years old and living in transitional
housing for homeless veterans with a roommate. Plaintiff testified that he had obtained a
GED. Plaintiff reviewed his work history as a bus driver, janitor, fast foods worker,
laundry worker, landscape laborer, and warehouse worker. He testified that he had one
DUI and that he had treatment for alcohol abuse.

13

Plaintiff testified that he sometimes went into depression, tended to isolate, and
could not focus. He testified that he had “episodes,” in which he lost track of time, forgot
to take his medicine, and sometimes hid his medicine and then lost it. (Tr. 82.) He stated
that he attended stress management and anger management groups as recommended by
his treatment providers. Plaintiff further testified that he kept to himself and avoided his
roommate. He only slept two to three hours each night, and he sometimes slept in the
bathtub, with a chair in front of the bathroom door, to block outside noises.
2.

Testimony of Vocational Expert (Tr. 88-93)

The ALJ asked the VE whether Plaintiff could perform any of his past relevant
work, given that he was functionally limited to unskilled, medium exertional work and
that he should avoid ropes, ladders, scaffolding, and hazardous heights. The VE testified
that, with those limitations, Plaintiff could perform his past relevant work as a
housekeeping cleaner, fast foods worker, warehouse worker, and laundry worker.
The ALJ also asked the VE to provide three additional jobs that a hypothetical
individual with the same education, vocational background, and residual functional
capacity as Plaintiff has the ability to perform and that exist in significant numbers on a
regional and national level. The VE testified that such an individual could perform the
jobs of dishwasher, automobile detailer, and automatic car wash attendant, which exist in
significant numbers in the national economy.
Plaintiff’s attorney altered the hypotheticals in his questioning of the VE.
Plaintiff’s attorney asked the VE to consider hypothetical individual also limited to
medium exertional work, but with marked limitations—defined as seriously inferring
14

with the ability to function independently, appropriately, and effectively—in coping with
normal work stress, behaving in an emotionally stable manner, accepting instructions,
responding to criticism, and maintaining attention to work tasks for up to two hours.
Plaintiff’s attorney asked the VE to assume that this individual exhibited these marked
limitations 20% of the time during an eight-hour day. The VE testified that, for such an
individual, work would be precluded.
ALJ’s Decision of August 19, 2013 (Tr. 14-22)
The ALJ determined that Plaintiff had not engaged in substantial gainful activity
since June 16, 2011, the amended alleged disability onset date. The ALJ found that
Plaintiff had several severe medically determinable impairments, including depression,
anxiety, and a history of alcohol abuse, but that no impairment or combination of
impairments met or medically equaled the severity of one of the impairments listed in 20
C.F.R. Part 404, Subpart P, Appendix 1.
After considering the entire record, the ALJ determined that Plaintiff had the
residual functional capacity (“RFC”) to perform a range of medium exertional work, and
that Plaintiff could understand, remember, and carry out at least simple instructions and
non-detailed tasks. The ALJ found, based on the testimony of the VE, that Plaintiff could
perform past relevant work as a housekeeper, fast-food worker, warehouse worker, and
laundry worker; and that there are other jobs existing in significant numbers in the
national economy that Plaintiff could also perform, such as dishwasher, automobile
detailer, and automatic car wash attendant. The ALJ asserted that Plaintiff’s attorney
“presented vocational hypotheticals [to the VE] based on facts not in evidence or
15

allegations not supported by the longitudinal record.” (Tr. 22.) Thus, the ALJ concluded
that Plaintiff had not been under a disability from June 16, 2011 through the date of the
decision.
In making her findings, the ALJ gave “little weight” to Dr. Lipschitz’s opinion for
two stated reasons: first, because the opinion was “not from [a] treating medical
source[],” and second, because “the severity of the limitations [noted in the opinion]
seems to contradict the limitations expressed in the treatment notes from the Veteran’s
Administration Medical Center, the claimant’s treating source.” (Tr. 14.)
By contrast, the ALJ gave “great weight” to the opinion of state agency
psychologist, Dr. Moreno, finding that Dr. Moreno’s opinion was consistent with
Plaintiff’s treatment records.
The ALJ’s decision made no mention of Dr. Lipschitz’s treatment records. The
ALJ did, however, summarize treatment records of Dr. Gesmundo, Dr. Heiland, Ms.
Isadore, and Dr. Lomax. The ALJ also referenced records from Plaintiff’s participation
in vocational rehabilitation, skills classes, and group discussion at the VA Medical
Center.
The ALJ noted that Dr. Gesmundo observed Plaintiff to have no suicidal ideation,
but to be suffering from poor sleep, abnormal mood and affect, and poor concentration.
The ALJ also noted that Plaintiff reported hallucinations to Dr. Gesmundo, though he
refused to discuss them, and that Dr. Gesmundo assessed Plaintiff with a GAF score of
50. As to Dr. Heiland, the ALJ noted that his treatment records reflected that Plaintiff
participated fully in group therapy and denied any clinically significant suicidal or
16

homicidal ideation. Next, the ALJ noted that Ms. Isadore observed that Plaintiff was
anxious, had a slight affect, was distracted, and had little insight into the validity of his
hallucinations. Finally, the ALJ noted that Dr. Lomax stated on one occasion that
Plaintiff had a stable mood and affect, and that Plaintiff reported being compliant with
medications, which Plaintiff said were beneficial in managing his symptoms.
The ALJ considered Dr. Lipschitz’s mental medical source opinion. The ALJ
accorded little weight to Dr. Lipschitz’s opinion because she found that it was
inconsistent with other evidence in the record. First, the ALJ found that Dr. Lipschitz’s
opinion that Plaintiff had marked limitations in coping with normal work stress and
accepting instructions was contradicted by records of Plaintiff’s participation in
vocational rehabilitation, skills classes, and group discussion at the VA Medical Center,
which at various times noted that Plaintiff was seeking work, had good hygiene and
appropriate dress, and was clean and neat. The ALJ also found that Dr. Lipschitz’s
opinion that Plaintiff had marked limitations in behaving in an emotionally stable
manner, responding to changes, and working in coordination with others was
contradicted by VA Medical Center records observing that Plaintiff was cooperative and
talkative in group discussion. Finally, the ALJ found that Dr. Lipchitz’s opinion that
Plaintiff had marked limitations in performing at a consistent pace and sustaining an
ordinary routine without supervision was not supported by Plaintiff’s treatment records,
which the ALJ asserted made no mention of memory deficit.
DISCUSSION
Standard of Review and Statutory Framework
17

The Court’s role on judicial review is to determine whether the ALJ’s findings are
supported by substantial evidence in the record as a whole. Pate–Fires v. Astrue, 564
F.3d 935, 942 (8th Cir. 2009). In determining whether the evidence is substantial, the
Court considers evidence that both supports and detracts from the Commissioner's
decision. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). As long as substantial
evidence supports the decision, the Court may not reverse it merely because substantial
evidence exists in the record that would support a contrary outcome or because the court
would have decided the case differently. See Krogmeier v. Barnhart, 294 F.3d 1019,
1022 (8th Cir. 2002). A court should “disturb the ALJ’s decision only if it falls outside
the available zone of choice.” Papesh v. Colvin, 786 F.3d 1126, 1131 (8th Cir. 2015)
(citation omitted).
To be entitled to benefits, a claimant must demonstrate an inability to engage in
substantial gainful activity which exists in the national economy, by reason of a
medically determinable impairment which has lasted or can be expected to last for not
less than 12 months. 42 U.S.C. § 423(d)(1)(A). The Commissioner has promulgated
regulations, found at 20 C.F.R. § 404.1520, establishing a five-step sequential evaluation
process to determine disability. The Commissioner begins by deciding whether the
claimant is engaged in substantial gainful activity. If so, benefits are denied. If not, the
Commissioner decides whether the claimant has a “severe” impairment or combination of
impairments. A severe impairment is one which significantly limits a person’s physical
or mental ability to do basic work activities. 20 C.F.R. § 404.1521(a). A special
technique is used to determine the severity of mental disorders. This technique calls for
18

rating the claimant’s degree of limitations in four areas of functioning: activities of daily
living; social functioning; concentration, persistence, or pace; and episodes of
decompensation. Id. § 404 .1520a(c)(3).
If the claimant does not have a severe impairment that meets the duration
requirement, the claim is denied. If the impairment or combination of impairments is
severe and meets the duration requirement, the Commissioner determines at step three
whether the claimant’s impairment meets or is equal to one of the deemed-disabling
impairments listed in the Commissioner’s regulations. If not, the Commissioner asks at
step four whether the claimant has the RFC to perform his past relevant work. If so, the
claimant is not disabled. If he cannot perform his past relevant work, the burden of proof
shifts at step five to the Commissioner to demonstrate that the claimant retains the RFC
to perform work that is available in the national economy and that is consistent with the
claimant’s vocational factors—age, education, and work experience. Halverson v.
Astrue, 600 F.3d 922, 929 (8th Cir. 2010).
Opinion of Plaintiff’s Treating Psychiatrist
Plaintiff argues that the ALJ failed to properly weigh the opinion evidence from
his treating psychiatrist, Dr. Lipschitz. Specifically, Plaintiff argues that the ALJ erred
by incorrectly finding that Dr. Lipschitz was not a treating medical source and by finding
that Dr. Lipschitz’s opinion was inconsistent with the remainder of the record. In
response, the Commissioner concedes that the ALJ “overlook[ed]” that Dr. Lipschitz was
a treating medical source but argues that the inconsistencies between Dr. Lipschitz’s
opinion and the remainder of the record, which were noted by the ALJ, provided
19

sufficient basis for the ALJ to reject Dr. Lipschitz’s opinion. Upon review, the Court
agrees with Plaintiff that the ALJ erred in evaluating the opinion of Dr. Lipschitz, and the
Court will reverse and remand this case for further consideration of Dr. Lipschitz’s
opinions.
“The ALJ must give controlling weight to a treating physician’s opinion if it is
well-supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” Papesh, 786 F.3d at 1132. “Not
inconsistent . . . is a term used to indicate that a well-supported treating source medical
opinion need not be supported directly by all of the other evidence (i.e., it does not have
to be consistent with all the other evidence) as long as there is no other substantial
evidence in the case record that contradicts or conflicts with the opinion.” S.S.R. 96-2p,
Policy Interpretation Ruling, Titles II & XVI: Giving Controlling Weight to Treating
Source Med. Opinions, 1996 WL 374188, at *3 (July 2, 1996).
“Even if the treating physician’s opinion is not entitled to controlling weight, it
should not ordinarily be disregarded and is entitled to substantial weight.” Papesh, 786
F.3d at 1132 (citation omitted). “It may have limited weight if it provides conclusory
statements only, or is inconsistent with the record.” Id. (citations omitted). For example,
the ALJ “may discount or even disregard the opinion . . . where other medical
assessments are supported by better or more thorough medical evidence, or where a
treating physician renders inconsistent opinions that undermine the credibility of such
opinions.” Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015).

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Whatever weight the ALJ accords the treating physician’s report, the ALJ is
required to give good reasons for that weighting. Holmstrom v. Massanari, 270 F.3d
715, 720 (8th Cir. 2001). The ALJ is not required to discuss every piece of evidence
submitted. See Morrison v. Apfel, 146 F.3d 625, 628 (8th Cir. 1998). But if the opinion
of a treating physician is not well supported or is inconsistent with other evidence, the
ALJ must consider the following factors in determining what weight to give the opinion:
(1) the length of the treatment relationship and the frequency of examination, (2) the
nature and extent of the treatment relationship, including the treatment provided and the
kind of examination or testing performed, (3) the degree to which the physician’s opinion
is supported by the relevant evidence, (4) consistency between the opinion and the record
as a whole, (5) whether or not the physician is a specialist in the area upon which an
opinion is rendered, and (6) other factors which may contradict or support the opinion.
Constable v. Colvin, No. 4:14 CV 1128 CDP, 2015 WL 5734977, at *15 (E.D. Mo. Sept.
29, 2015); 20 C.F.R. § 404.1527(c)(2)-(6).
Here, the ALJ gave two reasons for giving little weight to Dr. Lipschitz’s opinion:
first, because the opinion was “not from [a] treating medical source[],” and second,
because “the severity of the limitations [noted in the opinion] seems to contradict the
limitations expressed in the treatment notes from the Veteran’s Administration Medical
Center, the claimant’s treating source.” (Tr. 14.)
The first reason is erroneous, as the Commissioner concedes that Dr. Lipschitz is a
treating medical source. In light of this error, it is difficult for the Court to determine
what weight, if any, the ALJ would have given to Dr. Lipschitz’s opinion if she had
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properly considered Dr. Lipschitz to be a treating medical source. Remand for further
consideration of Dr. Lipschitz’s opinion is thus appropriate. See Torres v. Astrue, No.
11-CV-0144-NKL-SSA, 2012 WL 123057, at *5 (W.D. Mo. Jan. 17, 2012) (“Because
the ALJ was confused about the source of this medical opinion, it is impossible for the
Court to determine what weight, if any, the ALJ would have given to that opinion if he
correctly attributed it. Remand is thus appropriate on this point.”) (citation omitted).
As to the second reason, the Court is unconvinced that the ALJ’s explanation of
inconsistencies between Dr. Lipschitz’s opinion and VA Medical Center treatment notes
by other providers is based on a full and fair consideration of the record.
The ALJ’s decision made no mention of Dr. Lipschitz’s treatment records, but as
Plaintiff correctly notes, these records appear to support Dr. Lipschitz’s opinion. Dr.
Lipschitz personally evaluated Plaintiff 13 times in a 14-month period, and consistently
noted that Plaintiff’s concentration was impaired or decreased and that Plaintiff appeared
to be paranoid, anxious, and scattered. Dr. Lipschitz also observed on several occasions
that Plaintiff appeared to be responding to internal stimuli or hallucinations, and that
Plaintiff exhibited abnormal behavior, mood, and affect.
Additionally, as Plaintiff correctly asserts, Dr. Lipschitz’s opinion is largely
consistent with the treatment records of Dr. Gesmundo, Dr. Heiland, Ms. Isadore, and Dr.
Lomax. Even as summarized by the ALJ, Dr. Gesmundo and Ms. Isadore’s records of
Plaintiff’s hallucinations, abnormal affect, and poor concentration appear to be consistent
with Dr. Lipschitz’s opinion. Likewise, as noted above, although Dr. Heiland did
observe that Plaintiff participated fully in group therapy in January of 2012, in later visits,
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Dr. Heiland observed Plaintiff to exhibit tangential thoughts, pressured speech, paranoid
ideation, poor judgment and insight, and impaired global social functioning. These
records appear to be consistent with, or at least not contradictory to, Dr. Lipschitz’s
opinion. Finally, although Dr. Lomax on one occasion observed that Plaintiff’s mood
and affect seemed stable and that Plaintiff had been compliant with his medication, Dr.
Lomax also observed that Plaintiff had decreased concentration in each of his visits.
Thus, Dr. Lomax’s records do not appear to contradict Dr. Lipschitz’s opinion.
Finally, a review of the record as a whole shows that the treatment notes regarding
Plaintiff’s participation in skills classes and group discussion at the VA Medical Center,
which were relied on by the ALJ, do not necessarily contradict or conflict with Dr.
Lipschitz’s opinion. The evidence cited by the ALJ that Plaintiff on occasion sought
work, had good hygiene, dressed appropriately, had no memory deficit, and was
cooperative and talkative, in light of the record as a whole, does not appear to be so
inconsistent with Dr. Lipschitz’s opinion as to support the ALJ’s decision to accord that
opinion little weight.
As Plaintiff correctly notes, the primary medical evidence of record that was
directly contrary to Dr. Lipschitz’s opinion was the opinion of state non-examining
psychologist, Dr. Moreno, who opined that Plaintiff had non-disabling limitations and to
whose opinion the ALJ gave “great weight.” The Commissioner argues that if the ALJ
had good cause to reject Dr. Lipschitz’s opinion, it was appropriate for the ALJ to rely on
the alternate medical opinion from the non-treating source, Dr. Moreno.

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“Normally, the opinions of non-treating practitioners who have attempted to
evaluate the claimant without examination do not constitute substantial evidence on the
record as a whole.” Constable, 2015 WL 5734977, at *17 (citing Shontos v. Barnhart,
328 F.3d 418, 427 (8th Cir. 2003)). “Although the opinions of nonexamining sources
may be considered, they are generally given less weight than those of examining
sources.” Id. (citing Wildman v. Astrue, 596 F.3d 959, 967 (8th Cir. 2010); 20 C.F.R. §
404.1527(c)(1)). In evaluating nonexamining source opinions, the ALJ must “evaluate
the degree to which these opinions consider all of the pertinent evidence in [the] claim,
including opinions of treating and other examining sources.” 20 C.F.R. §
404.1527(d)(3); see also id. § 404.1527(f) (discussing rules for evaluating nonexamining
state agency opinions).
In Wildman, in determining that the ALJ properly disregarded the state agency
psychologists’ opinions from 2003 and 2004, the Eighth Circuit found it “significant that
the state agency evaluators did not have access to medical records from 2005 and 2006.”
Wildman, 596 F.3d at 967. Here, too Dr. Moreno’s opinion was issued on February 2,
2012, before Plaintiff’s first consultation with Dr. Lipschitz, so Dr. Moreno did not have
access to Dr. Lipschitz’s treatment records. Moreover, it is difficult for the Court to
determine what weight, if any, the ALJ would have accorded Dr. Moreno’s opinion if she
had properly considered Dr. Lipschitz a treating medical source and weighed her opinion
accordingly. On remand, the ALJ should reconsider and weigh Dr. Moreno’s opinion in
accordance with the law and precedent discussed above.
CONCLUSION
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In sum, the Court finds the ALJ failed to properly evaluate the weight to accord
the opinions of treating psychiatrist, Dr. Lipschitz, and therefore her decision was not
supported by substantial evidence on the record. Upon remand, the ALJ must either give
Dr. Lipschitz’s opinion controlling or substantial weight, or provide an acceptable reason
listed in in 20 C.F.R. § 404.1527 as to why Dr. Lipschitz’s opinion deserves less weight.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
REVERSED and the case is REMANDED to the Commissioner for further
development of the record. A separate judgment will accompany this Order.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 24th day of February, 2016.

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