Gaines v. Colvin

Filing 20

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner be REVERSED. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by Magistrate Judge John M. Bodenhausen on 8/19/16. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

HOWARD GAINES,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 4:15 CV 785 JMB

MEMORANDUM AND ORDER
This cause is on appeal from an adverse ruling of the Social Security Administration. This
suit involves Applications for Supplemental Security Income and Disability Insurance Benefits.
The matter is fully briefed, and for the reasons discussed below, the Commissioner’s decision is
reversed and remanded. All matters are pending before the undersigned United States Magistrate
Judge with consent of the parties, pursuant to 28 U.S.C. § 636(c).
I.

Procedural History
On November 13, 2012, Plaintiff Howard Gaines (“Plaintiff”) filed Applications for

Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401
et. seq. (Tr. 228-32)1 and Supplemental Security Income (“SSI”) payments pursuant to Title XVI
of the Social Security Act, 42 U.S.C. §§ 1381, et seq. (Tr. 220-27) Plaintiff claimed that his
disability began on September 12, 2011, as a result of major depressive disorder and difficulty
standing. On initial consideration, the Social Security Administration denied Plaintiff’s claims for
1

"Tr." refers to the page of the administrative record filed by the Defendant with her Answer
(ECF No. 14/filed August 17, 2015).

benefits. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was
held on October 24, 2013. (Tr. 31- 95) Plaintiff testified and was represented by counsel.
Vocational Expert Dr. Chrisann Schiro-Geist also testified at the hearing. (Tr. 78-90, 195-213)
Thereafter, on January 17, 2014, the ALJ issued a decision denying Plaintiff’s claims for benefits.
(Tr. 10-25) After considering the representative’s brief, the Appeals Council found no basis for
changing the ALJ’s decision and denied Plaintiff’s request for review on April 9, 2015. (Tr. 1-4,
360-63)
Plaintiff filed the instant action on May 18, 2015. Plaintiff has exhausted his
administrative remedies and the matter is properly before this Court. Plaintiff has been
represented by counsel throughout all relevant proceedings.
In his initial brief to this Court, Plaintiff raises three issues. First, Plaintiff argues that the
ALJ erred in giving no weight to his treating doctor, Dr. Rachel Morel. Second, Plaintiff argues
that the ALJ erred in relying on vocational expert responses to a hypothetical question
substantially different than the Residual Functional Capacity (“RFC”) the ALJ formulated. Lastly,
Plaintiff argues that the ALJ relied on vocational expert testimony that conflicted with the
Dictionary of Occupational Titles (“DOT”) or the Selected Characteristics of Occupations
(“SCO”). The Commissioner filed a detailed brief in opposition contending that the ALJ’s
decision is based upon substantial evidence. In his reply brief, Plaintiff argues that the ALJ failed
to consider the regulatory factors that apply to weighing a treating physician’s opinion; and the
ALJ failed to address the alleged conflicts between the vocational expert’s testimony and the
DOT.
As explained below, the Court has considered the entire record in this matter. Because
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the decision of the Commissioner is not supported by substantial evidence, it will be reversed.
The undersigned will first summarize the decision of the ALJ and the administrative record. Next,
the undersigned will address the issue regarding the ALJ’s failure articulate specific reasons for
giving no weight to Dr. Morel’s opinions.
II.

Decision of the ALJ
On May 29, 2014, the ALJ issued an adverse decision denying Plaintiff’s request for SSI

and DIB benefits. The ALJ determined that Plaintiff met the insured status requirements of the
Social Security Act through September 30, 2012. (Tr. 15) The ALJ acknowledged that the
administrative framework required him to follow a five-step, sequential process in evaluating
Plaintiff’s claims. (Tr. 14-15) At step one, the ALJ concluded that Plaintiff had not engaged in
any substantial gainful activity since September 12, 2011, the alleged onset date. (Tr. 15-16) At
step two, the ALJ found Plaintiff had the severe impairments of a moderate recurrent major
depressive disorder and an anxiety disorder, and the non-severe impairments of low back pain,
chronic gastrointestinal problems, breathing problems, hyperthyroidism, vision issues, and
medication side-effects. (Tr. 16-17) After considering all of Plaintiff’s impairments, severe and
non-severe, he found supported by the record, the ALJ gave Plaintiff the benefit of the doubt
regarding the numerous alleged impairments he found to be non-severe. The ALJ further
concluded, however, that none of Plaintiff’s impairments, either singly or in combination,
significantly limited his ability to perform basic work-related activities for 12 consecutive months.
(Tr. 18-20)
In making his RFC determination, the ALJ found that Plaintiff had the capacity to perform
medium exertional work to the extent the following nonexertional capabilities and limitations were
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included: no climbing of ropes, ladders, or scaffolds; no exposure to unprotected heights,
dangerous moving machinery, or temperature extremes or more than moderate exposure to dust,
fumes, low humidity or winds in excess of 10 miles per hour; no sampling or tasting of foods or
beverages; doing simple, routine, repetitive tasks; having occasional superficial interaction with
co-workers or the general public; and having a reduced stress work environment, defined as
having to make occasional commensurate decisions and having no more than occasional changes
in routines in a normal work setting. The ALJ explained that medium work involves normal
standing and walking abilities, and lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds. (Tr. 20)
The ALJ made an adverse credibility finding, concluding that Plaintiff’s “statements
concerning the intensity, persistence and limiting effects of his symptoms are not entirely
credible.” (Tr. 23) The ALJ concluded that Plaintiff failed to support his claim of disability with
sufficient, relevant evidence. The ALJ summarized his conclusions as follows:
[Plaintiff’s] basic abilities to think, understand, communicate, concentrate, get along
with other people, make normal judgments and decisions, adjust to routine work
setting changes, and handle normal work stress have never been significantly impaired
on any documented long-term basis. There has been no documented serious
deterioration in his personal hygiene or habits, daily activities or interests, effective
intelligence, reality contact, thought processes, memory, speech, mood and affect,
attention span, insight, or behavior patterns over any extended period of time. ... At
the hearing, he displayed no obvious signs of depression, anxiety, memory loss, or
other mental disturbance.
(Tr. 23) The ALJ found that Plaintiff is unable to perform any past relevant work. The ALJ
further found that, considering Plaintiff’s age, education, work experience, and RFC, there were
jobs existing in significant numbers in the national economy he could perform, including an
inspector, a packager, and an assembler. (Tr. 24)
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III.

Evidence Before the ALJ
The administrative record in this matter includes medical records and forms completed by

Plaintiff. Although the Court has carefully considered all of the evidence in the administrative
record in determining whether the Commissioner’s adverse decision is supported by substantial
evidence, only the medical records relevant to the ALJ’s decision and the issues raised by Plaintiff
on this appeal are discussed. The following is a summary of pertinent portions of the record.
A.

The Hearing Before the ALJ

The ALJ conducted a hearing on October 24, 2013. Plaintiff was present and represented
by an attorney. Also present was a Vocational Expert (“VE”), Dr. Chrisann Schiro-Geist.
1.

Plaintiff’s Testimony

Plaintiff testified primarily in response to questions posed by his attorney, with additional
questions interjected by the ALJ. Plaintiff explained that he selected his onset date of disability,
September 12, 2011, because that was the date he started therapy for depression. At the time of
his hearing, Plaintiff was fifty years old. (Tr. 39) Plaintiff testified that he used public
transportation to come to the hearing. (Tr. 43)
Plaintiff completed over 100 credit hours at a community college with general fine arts as
his intended major. (Tr. 47) After Plaintiff had an incident with an instructor, he never returned
as he was uncomfortable with the environment. (Tr. 48)
Plaintiff testified that for the prior six months he has lived at the Catholic Charities Places
for Fathers, a group home. The residents are required to fill out job applications as a condition of
living there. (Tr. 42, 45)
Plaintiff testified that his depression and social anxiety disorder prevent him from going on
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job interviews. (Tr. 46) Plaintiff testified that he was terminated from a job in 1995 for
misconduct, in particular, he had a verbal argument with a coworker. (Tr. 52) Plaintiff last
worked in the mortgage business in 2011, but a housing problem forced him to leave the job.
Before that job, Plaintiff worked as a janitor, a factory worker, a warehouse employee, and an
office worker. (Tr. 45) According to Plaintiff, he cannot hold down a job because he is unable to
cope or deal with groups of people, and is unable to focus and maintain a level of motivation.
(Tr. 69) Plaintiff indicated that he could focus on something for fifteen to twenty minutes and
then his anxiety would cause him to lose his concentration and his ability to stay on task.
Plaintiff spends most of the day watching television. (Tr. 51) His aunt does his laundry
and prepares his food each week. (Tr. 53-54) Plaintiff testified that he is unmotivated to do any
household chores or to take a shower. (Tr. 54-55, 57) Plaintiff testified he is only motivated to
talk to his therapist when he feels the need. (Tr. 67) Plaintiff has a problem shopping because
being around people makes him nervous and causes panic attacks. (Tr. 58) Plaintiff takes about a
two hour nap every day. (Tr. 71)
Plaintiff testified that his anxiety causes him problems in social situations and around
people. (Tr. 52) When Plaintiff is around people he cannot remain focused and loses
concentration. (Tr. 65) Plaintiff reported conflicts with his family about his homosexuality have
caused, in part, his anxiety and depression. (Tr. 45, 73)
Plaintiff testified that since obtaining Medicaid in December 2012, he has been able to get
the medical care he needs, including seeing doctors and receiving medications. (Tr. 47) Plaintiff
takes Buspirone for his anxiety and Sertraline and Trazodone for his depression, but he testified
that the medications help little and cause drowsiness. (Tr. 62-63) Plaintiff testified that he is
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looking for a primary care physician, and Dr. Rachel Morel is his psychiatrist. (Tr. 68, 72) Ryan
Sosman, his case manager, delivers Plaintiff’s medications and tries to motivate Plaintiff. (Tr. 73)
2.

Testimony of Vocational Expert Dr. Chrisann Schiro-Geist

Vocational Expert Dr. Chrisann Schiro-Geist testified at the hearing. Dr. Geist identified
two jobs she considered to be Plaintiff’s past relevant work, a telemarketer and a customer service
agent. (Tr. 80-81) Dr. Geist noted that the customer service agent job has a light exertional level
and is semi-skilled, and the telemarketing solicitor job has a sedentary exertional level and is semiskilled. (Tr. 83)
The ALJ asked the VE to assume someone similar to Plaintiff in age, education, and the
same past work experience who is
capable of performing exertional demands of a reduced range of medium work. The
lift, carry, push, pull 50 pounds occasionally and 25 pounds frequently. Sit, stand
walk six out of eight hours each for a combined total of eight out of eight hours.
There can be no climbing of ladders, ropes, or scaffolds. The individual must avoid
the hazards of dangerous unprotected heights and dangerous unprotected machinery,
as well as avoid exposure to extreme heat and extreme cold. And the individual must
avoid more than moderate exposure to dust, fumes, low humidity, and winds in excess
of 10 miles per hour. There can be no sampling or tasting of foods or beverages, so
as not to interfere with the recommended diet. Limit the individual to tasks and
instructions with an SVP of 2 or less. Limit the individual to occasional superficial
interaction with the general public; occasional superficial interaction with coworkers;
and a reduced-stress work environment. And I define that as having to make
occasional commensurate decisions and no more than occasional changes in routine
in a normal work setting.
(Tr. 84-85) Dr. Geist opined that, although such hypothetical individual could not perform
Plaintiff’s past relevant work, such individual could perform other jobs existing in significant
numbers, including an inspection job (DOT 739.131-018) with an SVP of 2, a packing job (DOT
920.587-018), and an assembly job (DOT 706.687-010) at the medium level. (Tr. 85-86) The

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ALJ then asked Dr. Geist to assume the same hypothetical but to add that the individual could not
interact with the general public. Dr. Geist explained that the jobs she cited do not require
interaction with the public. (Tr. 86)
Next, the ALJ asked Dr. Geist how including a limitation that the individual would be off
task 20 to 30 percent of the time during an eight-hour workday would impact the jobs she cited.
(Tr. 87) Dr. Geist explained that if an individual was off task to the degree cited by the ALJ, such
individual could not perform any of the jobs or any competitive employment.
In response to the ALJ’s question regarding the need to lie down, Dr. Geist opined that if
the hypothetical individual needed to lie down one time a day for a continuous period of two to
three hours, such individual would not be able to sustain competitive employment. (Tr. 88)
Plaintiff’s counsel then asked if the hypothetical individual would have to miss work twice
a month and either be late or need to leave early twice a month, would the individual be able to
perform the jobs she cited. Dr. Geist indicated competitive employment would be precluded.
In response to the ALJ’s question about whether the VE’s testimony had been consistent
with the information contained in the DOT, the VE responded:
Well, the things that are in the DOT are consistent with my testimony – are consistent
with those things that are in the DOT. The DOT doesn’t speak to the instances of
tardiness and time on task, et cetera. But I have gained that information by being a
diplomat of the American Board of Vocational Experts and my own observations of
work and interacting as a professional.
(Tr. 89) The VE opined that she based her determination regarding Plaintiff’s ability to adjust to
other work on her education, training, and experience. (Tr. 89-90)
B.

Forms Completed by Plaintiff

In a Work History Report form, Plaintiff reported having worked as a customer service
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representative for Home Delivery Incontinent Supplies, from April to July, 2011, and for
ADECCO Temp, from October 2010 to April 2011. (Tr. 259) Both jobs required Plaintiff to call
doctor’s offices and request forms for customers. (Tr. 261-62) In his last job at the Bridge
Outreach, from September through December 2009, Plaintiff reported that this his duties included
greeting guests. (Tr. 264)
In a Function Report - Adult form, completed on November 13, 2012, Plaintiff listed
attending meetings at St. Patrick’s Center and attending group therapy every day as some of his
daily activities. (Tr. 268) Plaintiff reported that his meals were prepared at the shelter, and he
does basic cleaning and laundry. (Tr. 269) Plaintiff reported being able to use public
transportation and being able to go out alone. (Tr. 270)
C.

Medical Records and Source Opinion Evidence
1.

General History

The medical evidence in the record shows that Plaintiff has a history of depression, anxiety
disorder, diabetes, and mild hyperopia. (Tr. 365-626) Although the Court has carefully
considered all of the evidence in the administrative record in determining whether the
Commissioner’s adverse decision is supported by substantial evidence, only the medical records
relevant to the ALJ’s decision and the issues raised by Plaintiff on this appeal are discussed.
The relevant medical evidence will be discussed in more detail below, as part of the Court’s
analysis of the arguments raised by Plaintiff herein.
2.

Grace Hill - Dr. David Richards (Tr. 374-442, 564-76)

Between November 30, 2010, and April 26, 2013, Dr. David Richards treated Plaintiff at
Grace Hill.
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On November 30, 2010, Plaintiff presented with diabetes. In follow-up treatment on
December 2, 2010, Plaintiff reported that he had a history of depression and he had been taking
Zoloft but he stopped taking Zoloft a year earlier without experiencing any issues. Examination
showed Plaintiff’s affect to be normal. Plaintiff requested to restart Zoloft.
On December 13, 2011, Plaintiff presented with anxiety and depression and requested
Zoloft. In follow-up treatment on April 9, 2012, Dr. Richards refilled Plaintiff’s Zoloft
prescription.
During treatment on August 23, 2012, Plaintiff reported experiencing a depressed mood,
fatigue, loss of energy, and poor concentration, but he admitted having run out of Zoloft several
months earlier. (Tr. 374) Dr. Richards’ examination showed Plaintiff had a depressed affect but
that he was not anxious. Dr. Richards made the diagnosis of depressive disorder and prescribed
Zoloft. Dr. Richards noted Plaintiff had symptoms of a major depressive episode on September
10, 2012. Plaintiff reported having financial worries stemming from unemployment starting in
July 2010. On October 8, 2012, Plaintiff admitted that he stopped taking Zoloft two weeks
earlier. Dr. Richards observed Plaintiff not to have any unusual anxiety or evidence of depression
and resumed Plaintiff’s Zoloft. In follow-up treatment on November 14, 2012, Dr. Richards
doubled Plaintiff’s Zoloft dosage and added Buspar and found his mental complaints stem in part
from hyperparathyroidism.
On March 26, 2013, Plaintiff returned and requested a letter of disability for his psychiatric
issues and reported feeling better on medications. Dr. Richards advised Plaintiff “to talk to BJ
about disability letter” and noted the medications helped Plaintiff’s anxiety. In follow-up
treatment on April 26, 2013, Dr. Richards found Plaintiff to be alert and oriented with no unusual
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anxiety or evidence of depression and to be stable on Zoloft.
3.

BJC Behavioal Health Services - Dr. Rachel Morel (Tr. 444-68, 57992)

Between November 14, 2012, and July 19, 2013, Dr. Rachel Morel, a D.O. board certified
in psychiatry, treated Plaintiff at BJC Behavioral Services. A report regarding Plaintiff dated
November 14, 2012, lists major depressive disorder and anxiety disorder.2
On November 20, 2012, Anita Tsay, a clinician, evaluated Plaintiff on referral by Shelter
Outreach Services. Plaintiff reported wanting to start his own business. Plaintiff indicated that he
adapts well to change. Plaintiff reported depression, inability to focus, and his mood swings as his
main barriers, and homelessness and lack of income as his other stressors. Plaintiff also reported
an ongoing pattern of life struggles such as problems maintaining employment, isolation from
others, and difficulty connecting to his art. Since becoming homeless, Plaintiff reported
developing severe anxiety symptoms when around other people. As a result, Plaintiff avoids
social situations because these trigger panic attacks. When Plaintiff became homeless, he dropped
out of school. Plaintiff attends AA meetings at St. Patrick’s Center despite not having any
alcohol issues. Plaintiff explained that he is now seeking psychiatric care after a long period of
time of trying to deal with stressors on his own. Ms. Tsay observed Plaintiff’s affect to be
depressed. Ms. Tsay assessed Plaintiff to have a GAF score of 45, and diagnosed him with major
depressive disorder and anxiety. Ryan Sosman, a case manager, helped formulate Plaintiff’s
“Integrated Recovery Plan.”
On December 14, 2012, Plaintiff met with Dr. Morel to establish care for major depressive
2

The undersigned notes that the medical record from BJC BH Community Mental Health Center
appears to be incomplete because the only record dated November 14, 2012, is the one-page
report styled as “DX Summary Report.” (Tr. 445)
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disorder, anxiety disorder, and panic disorder. Plaintiff reported being homeless and receiving
psychiatric care through his primary care physician since 2004. Plaintiff reported that he had been
struggling with anxiety and depression and he wanted to transfer his care from his primary care
physician. Plaintiff reported taking Trazdone and Zoloft, with his dosage recently increased.
Plaintiff described the frequency of his depression “as more episodic as it has affected his ability to
finish school and hold a job.” (Tr. 447) As to his anxiety, Plaintiff reported having trouble in
crowds but he no longer had panic attacks when out in public. Dr. Morel’s psychiatric evaluation
showed Plaintiff’s mood to be okay, his affect restricted, his thought process goal directed and
logical, and his insight and judgment to be fair. Dr. Morel noted that Plaintiff was well groomed
with fair eye contact. Dr. Morel continued Plaintiff’s medication regimen and supportive therapy.
Plaintiff returned for follow-up treatment on January 4, 2013, and reported he had
decompensated since the last visit due to relationship issues. Dr. Morel increased his Zoloft
dosage to 150 milligrams. In follow-up treatment on January 25, 2013, Plaintiff denied having
any panic attacks since his last visit. Plaintiff decided to limit his activities and not attend group
therapy to avoid his ex-boyfriend. Dr. Morel found Plaintiff’s depression to be stable on Zoloft
but his anxiety worsened after a recent relationship breakup.
On April 12, 2013, Plaintiff reported increased stress and irritability after finding out that
he might be homeless again. Dr. Morel noted Plaintiff to be well groomed with fair eye contact,
and his insight and judgment to be fair. Dr. Morel increased Plaintiff’s Zoloft dosage and
encouraged Plaintiff “not to isolate as this could make it harder for him to venture out when he is
feeling better.” (Tr. 581) On April 26, 2013, Plaintiff reported increased anxiety after finding out
he has to be completely homeless before he is eligible to live in another shelter. Plaintiff indicated
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that “[h]is lawyer is unsure if it is a good idea for him to get even a part time job to try to survive
as it may jeopardize his case.” (Tr. 583) Dr. Morel continued Plaintiff’s medication regimen for
depression and anxiety.
In follow-up treatment on June 7, 2013, Plaintiff described his mood as better and his
depression improved. On July 19, 2013, Plaintiff reported still having issues from his last
relationship and being interested in going to the Independence Center as a social outlet. Dr.
Morel assessed a GAF score of 48.
Dr. Morel completed a three page “Mental Medical Source Statement” (“MMSS”), dated
July 31, 2013, at the request of Plaintiff’s counsel. In that MMSS, Dr. Morel found Plaintiff had
no ability to function independently, to behave in an emotionally stable manner or to adhere to
basic cleanliness standards, to relate to family or peers, or to maintain socially acceptable
behavior. Dr. Morel found Plaintiff could perform in a task-oriented setting where he has casual
and infrequent contact with coworkers and the general public, with supervisors providing simple
instructions for non-detailed tasks. Dr. Morel also noted that Plaintiff’s overall pace of
production would be 31% or more below average, and he would miss work twice a month; and he
would either be late or have to leave early twice a month.
4.

St. Patrick’s Center (Tr. 479-533)

Starting in February 2002, Plaintiff received mental health services such as group
counseling/therapy, and substance abuse education at the St. Patrick’s Center.
5.

Catholic Family Services, Places for Fathers - D. Carter (Tr. 601-16)

Between May 29, 2013, and August 28, 2013, Plaintiff attended eight therapy sessions
with D. Carter, MSW (masters social work), LCSW (licensed clinical social worker) at Catholic
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Family Services, Places for Fathers. On May 13, 2013, Plaintiff discussed his upcoming art work
display and wanting to participate in activities to improve his social interactions. Mr. Carter
assessed Plaintiff and found him to have a GAF score of 65. On May 19, 2013, Plaintiff reported
that although he lacks energy to participate in activities, he wants to begin attending sessions at
the Independence Center. During follow-up treatment on July 25, 2013, Mr. Carter
recommended Plaintiff seek follow-up treatment with his psychiatrist and provided him with a
crisis hotline number. On August 28, 2013, Plaintiff reported having difficulty interacting with
others and being unable to follow-up with psychotropic medications.
In a letter dated October 30, 2013, Rhondell McGuire, a senior program case manager,
explained that the program is “designed to provide permanent supportive housing and services to
chronically homeless men with a disability. Mr. Gaines met all HUD requirements and is currently
a resident in our program ... Catholic Family Service Places for Fathers Plus.” (Tr. 616)
IV.

Standard of Review and Analytical Framework
To be eligible for Supplemental Security Income (“SSI”) or Disability Insurance Benefits

(“DIB”), Plaintiff must prove that he is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th
Cir. 2001); Baker v. Secretary of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992).
Under the Social Security Act, a disability is defined 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 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). Additionally, a
claimant will be found to have a disability “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,
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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);
see also Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
The Commissioner has promulgated regulations outlining a five-step process to guide an
ALJ in determining whether an individual is disabled. First, the ALJ must determine whether the
individual is engaged in “substantial gainful activity.” If he is, then he is not eligible for disability
benefits. 20 C.F.R. § 404. 1520(b). If he is not, the ALJ must consider step two which asks
whether the individual has a “severe impairment” that “significantly limits [the claimant’s] physical
or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant does not
have a severe impairment, he is not eligible for disability benefits. If the claimant has a severe
impairment, the ALJ proceeds to step three and determines whether the impairment meets or is
equal to one determined by the Commissioner to be conclusively disabling. If the impairment is
specifically listed, or is equal to a listed impairment, the claimant will be found disabled. 20
C.F.R. § 404.1520(d). If the impairment is not listed, or is not the equivalent of a listed
impairment, the ALJ proceeds to step four which asks whether the claimant is capable of doing
past relevant work. If the claimant can still perform past work, he is not disabled. 20 C.F.R. §
404.1520(e). If the claimant cannot perform past work, the ALJ proceeds to step five to
determine whether the claimant is capable of performing other work in the national economy. In
step five, the ALJ must consider the claimant’s “age, education, and past work experience.” Only
if a claimant is found incapable of performing other work in the national economy will he be found
disabled. 20 C.F.R. § 404.1520(f); see also Bowen, 482 U.S. at 140-41 (explaining five-step
process).
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Court review of an ALJ’s disability determination is narrow; the ALJ’s findings will be
affirmed if they are supported by “substantial evidence on the record as a whole.” Pearsall, 274
F.3d at 1217. Substantial evidence has been defined as “less than a preponderance, but enough
that a reasonable mind might accept it as adequate to support a decision.” Id. The court’s review
“is more than an examination of the record for the existence of substantial evidence in support of
the Commissioner’s decision, we also take into account whatever in the record fairly detracts
from that decision.” Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998). The Court will
affirm the Commissioner’s decision as long as there is substantial evidence in the record to
support his findings, regardless of whether substantial evidence exists to support a different
conclusion. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001).
In reviewing the Commissioner's decision, the Court must review the entire administrative
record and consider:
1.

The credibility findings made by the ALJ.

2.

The claimant's vocational factors.

3.

The medical evidence from treating and consulting physicians.

4.

The claimant's subjective complaints relating to exertional and nonexertional activities and impairments.

5.

Any corroboration by third parties of the claimant's impairments.

6.

The testimony of vocational experts when required which is based upon
a proper hypothetical question which sets forth the claimant's impairment.

Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (quoting
Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989)).
Finally, a reviewing court should not disturb the ALJ’s decision unless it falls outside the
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available “zone of choice” defined by the evidence of record. Buckner v. Astrue, 646 F.3d 549,
556 (8th Cir. 2011). A decision does not fall outside that zone simply because the reviewing
court might have reached a different conclusion had it been the finder of fact in the first instance.
Id.; see also McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010) (explaining that if
substantial evidence supports the Commissioner’s decision, the court “may not reverse, even if
inconsistent conclusions may be drawn from the evidence, and [the court] may have reached a
different outcome”).
V.

Analysis of Issues Presented
The broad issue in this case is whether the final decision of the Commissioner is supported

by substantial evidence on the record as a whole. In his brief before this Court, Plaintiff contends
that the ALJ committed reversible error when: (1) the ALJ gave no weight to the opinion of Dr.
Rachel Morel, his treating psychiatrist; (2) the ALJ relied on vocational testimony based on
hypothetical questions that were substantially different than the RFC; and (3) the ALJ relied on
vocational expert testimony that conflicted with the DOT. As explained below, because the Court
finds the ALJ erred in articulating his reasoning in giving no weight to the opinions of Plaintiff’s
treating physician, Dr. Morel, the Court will only address this issue.
Plaintiff argues the ALJ erred in weighing the opinion of Dr. Morel, his treating doctor,
by failing to offer “a basis to give the opinion non-substantial weight.” (ECF No. 19, at *1) In
support of the ALJ’s decision, the Commissioner contends that, although the ALJ did not discuss
the elements of 20 C.F.R. § 416.927(c)(1)-(2) “at any one place in his written decision[,] [h]is
discussion of those elements is spread across his written decision and wrapped up mostly in his

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consideration of the credibility fo Plaintiff’s complaints.”3 (ECF No. 18, at *5)
Opinions from medical sources who have treated a claimant typically receive more weight
than opinions from one-time examiners or non-examining sources. See 20 C.F.R. §§
404.1527(c)(1)-(2), 416.927(c)(1)-(2). However, the rule is not absolute; a treating physician’s
opinion may be disregarded in favor of other opinions if it does not find support in the record.
See Casey v. Astrue, 503 F.3d 687, 692 (8th Cir. 2007). The treating physician’s opinion should
be given controlling weight when it is supported by medically acceptable clinical and laboratory
diagnostic techniques. Hacker v. Barnhart, 459 F.3d 935, 937 (8th Cir. 2006). See also 20
C.F.R. §§ 404.1527(c)(3), 416.927(c)(3) (listing “[s]upportability” as a factor to be considered
when weighing medical opinions).
Inconsistencies may diminish or eliminate the weight given to an opinion. Hacker, 459
F.3d at 937. See also Papesh v. Colvin, 786 F.3d 1126, 1132 (8th Cir. 2015) (holding that a
treating physician’s opinion “may have ‘limited weight if it provides conclusory statements only,
or is inconsistent with the record’”) (quoting Samons v. Astrue, 497 F.3d 813, 818 (8th Cir.
2007)). “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
(quoting Samons, 497 F.3d at 818). An 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.” Id., 786 F.3d at 1132 (quoting Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015)).

3

The undersigned notes that Defendant did not include any page citations to the ALJ’s written
opinion in support of this assertion.
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If an ALJ declines to give controlling weight to a treating physician’s opinion, the ALJ
must consider the following factors in determining the appropriate weight: length and frequency
of the treatment relationship; nature and extent of the treatment relationship; evidence provided
by the source in support of the opinion; consistency of the opinion with the record as a whole; and
the source’s level of specialization. 20 C.F.R. §§ 404.1527(c), 416.927(c), at *5 (requiring the
ALJ to provide “good reasons in the notice of the determination or decision for the weight given
to a treating source's medical opinion(s)”). Whether the ALJ grants a treating physician’s
substantial or little weight, “[t]he regulations require that the ALJ ‘always give good reasons’ for
the weight afforded to a treating physician’s evaluation.” Reed v. Barnhart, 399 F.3d 917, 921
(8th Cir. 2005) (quoting 20 C.F.R. § 404.1527(d)(2)). “Failure to provide good reasons for
discrediting a treating physician’s opinion is a ground for remand.” Anderson v. Barnhart, 312
F.Supp.2d 11876, 1194 (E.D. Mo. 2004). See also Tilley v. Astrue, 580 F.3d 675, 680-81 (8th
Cir. 2009); Singh v. Apfel, 222 F.3d 448, 452-53 (8th Cir. 2000).
Dr. Morel was Plaintiff’s treating doctor when she completed the three page “Mental
Medical Source Statement” (“MMSS”), dated July 31, 2013, setting forth her opinions as to
Plaintiff’s limitations. In the MMSS, Dr. Morel concluded that Plaintiff “[c]ould perform in a
task-oriented setting where contact with coworkers is only casual and infrequent ..., in a setting
where supervisors provide simple instructions for non-detailed tasks ..., [and] in a setting where
contact with the general public is only casual and infrequent.” (Tr. 590) Dr. Morel also noted
that Plaintiff’s overall pace of production would be 31% or more below average, and he would
miss work twice a month; and he would either be late or have to leave early twice a month. Dr.
Morel assessed a GAF score of 48.
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In his written decision, the ALJ assessed Dr. Morel’s MMSS as follows:
The undersigned gives no weight to the opinion by Dr. Morel, who was only one of
many providers who saw the claimant at BJC [on April 26 and July 19, 2013], and
who just happened to be the most recent one. Her check-off form4 findings, including
a GAF of only 48 are inconsistent with those of Mr. Carter, who indicated both before
and after the date of Exhibit 9F that the claimant’s GAF was only a mildly restrictive
65.
(Tr. 22)
A review of the ALJ’s decision shows the ALJ neither applied the factors as required, nor
provided sufficient reasons for giving no weight to Dr. Morel’s opinions. In completely
discounting the opinions in Dr. Morel’s MMSS, the ALJ did not adhere to the factors identified in
20 C.F.R. §§ 404.1527(c), 416.927(c). It appears that the ALJ only partially considered one
factor – the consistency of Dr. Morel’s opinion regarding Plaintiff’s GAF score relative to the
GAF scores determined by another provider. The ALJ did not identify any other inconsistencies
or bases for completely rejecting Dr. Morel’s opinions.
Additionally, the ALJ incorrectly concluded that Dr, Morel treated Plaintiff only twice, on
April 26 and July 19, 2013. In fact, the record shows Dr. Morel treated Plaintiff on December 4,
2012, January 4, 2013, January 25, 2013, April 12, 2013, and June 4, 2013.5 See (Tr. 579-88)
4

The fact that Dr. Morel’s MMSS was a checklist with no narrative explanation does not entirely
diminish the probative value of her opinions and treatment records. That would be a basis for
giving Dr. Morel’s MMSS less than controlling weight, not for discounting it altogether. See
Samons, 497 F.3d at 818.
5

Although not raised by the parties, the undersigned notes that another problem is the ALJ’s
failure to consider all the evidence in a case, especially medical evidence from a treating physician.
Reeder v. Apfel, 214 F.3d 984, 987-88 (8th Cir. 2000) (“the ALJ is not free to ignore medical
evidence but rather must consider the whole record”); see also 20 C.F.R. §404.1520(a)(3) (“we
will consider all evidence in your case record when we make a determination or decision whether
you are disabled”). Where an ALJ does fail to consider all the evidence, that can be reversible
error. See Reeder, 214 F.3d at 988 (where the ALJ’s opinion “appears to have ignored some of
the medical evidence” it will be remanded).
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Moreover, the ALJ incorrectly assumed that other providers at BJC Behavioral Services were
physicians or providers of equivalent status to Dr. Morel. In fact, the record shows Dr. Morel
was the only physician at BJC Behavioral Services treating Plaintiff –Ms. Tsay was a clinician and
Mr. Sosman was a case manager.
Although the ALJ considered the GAF score of 65 by Mr. Carter to discredit Dr. Morel’s
MMSS, the Court believes that the ALJ’s analysis of the weight due to Plaintiff’s GAF scores is
flawed for a number of reasons. First, as noted by Plaintiff, Mr. Carter is not an acceptable
medical source, see 20 C.F.R. §§ 404.1513(a), 416.913(a) (listing such sources, which did not
include someone with a MSW, LCSW), and his only source of information for the assessment was
Plaintiff. See Vester v. Barnhart, 416 F.3d 886, 890 (8th Cir. 2005) (rejecting licensed
professional counselor’s assessment that claimant’s disability was caused by mental health issues
and not alcoholism - counselor was not acceptable medical source). The ALJ also failed to
explain how he compared, contrasted and dismissed the differences in Plaintiff’s GAF scores,
which indicates an improper determination of a lesser limitation in functioning. See Span ex rel.
R.C. v. Barnhart, 2004 WL 1535768, at *9 (E.D. Pa. May 21, 2004) (ALJ’s determination of a
claimant’s level of function was not supported by substantial evidence because of the ALJ’s
failure to explain how he weighed and discounted the significance of the claimant’s score). Thus,
the undersigned finds that the ALJ improperly used Mr. Carter’s GAF score as a basis to
completely discount Dr. Morel’s opinions in the MMSS.
As noted above, the ALJ also missed or disregarded several months of treatment records
from Dr. Morel, who was Plaintiff’s treating physician during this time. Accordingly the Court
finds that the ALJ failed to provide sufficient reasons for giving no weight to Dr. Morel’s
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opinions. This is an issue for the ALJ, not the Court, to address in the first instance. See Pfitzner
v. Apfel, 169 F.3d 566, 569 (8th Cir. 1999)
Even if the ALJ had identified good reasons for discounting Dr. Morel’s MMSS, as a
treating physician, absent very good reasons, her opinions should still have been entitled to some
weight. See Papesh, 786 F.3d at 1132-33; Samons, 497 F.3d at 818 (“Even if the opinion is not
entitled to controlling weight, it should not ordinarily be disregarded....”).
Moreover, Dr. Morel’s opinions were not inconsistent with the record as a whole or her
treatment notes. For example, the medical records show that Plaintiff received treatment for
depression and anxiety before his alleged onset date. During treatment on July 25, 2013, Mr.
Carter recommended Plaintiff follow-up with his psychiatrist and provided Plaintiff with a crisis
hotline number. In the last session on August 28, 2013, Plaintiff reported having difficulty
interacting with others and being unable to follow-up with psychotropic medications.
Although it is possible that the ALJ will come to the same ultimate conclusion on remand,
Plaintiff correctly argues that the Court cannot uphold the ALJ’s decision by citing factors not
relied on by the ALJ, citing Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001), as support.
“[A] reviewing court may not uphold an agency decision based on reasons not articulated by the
agency,” when “the agency [has] fail[ed] to make a necessary determination of fact or policy”
upon which the court’s alternative basis is premised. Id. (alteration in original; citation omitted).
Here, the ALJ failed to consider the 20 C.F.R. § 404.1527 factors. Id.
On remand, the ALJ should apply the factors as required by 20 C.F.R. §§ 404.1527(c),
416.927(c), and articulate specific reasons for the weight given (if any) to Dr. Morel’s opinions.
See Draper v. Barnhart, 425 F.3d 1127, 1130 (8th Cir. 2005) (noting “inaccuracies, incomplete
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analyses, and unresolved conflicts of evidence” are proper basis for remand).
VI.

Conclusion
The Court’s function on review is to determine whether the Commissioner’s decision is

supported by substantial evidence on the record as a whole and free of legal error. Papesh, 785
F.3d at 1131. Where an ALJ fails to properly consider opinion evidence of record, it cannot be
said that the resulting RFC determination is supported by substantial evidence on the record as a
whole. Holmstrom v. Massanari, 270 F.3d 715, 722 (8th Cir. 2001). In the instant case, the ALJ
failed to properly evaluate Dr. Morel’s opinion and misstated the record when evaluating that
opinion. The matter will therefore be remanded for further consideration.
Although the Court is aware that the ALJ’s decision as to non-disability may not change
after properly considering all the evidence of record and undergoing the required analysis, the
determination is nevertheless one that the Commissioner must make in the first instance. See
Pfitzner, 169 F.3d at 569.
IT IS HEREBY ORDERED that the decision of the Commissioner be REVERSED. A
separate Judgment in accordance with this Memorandum and Order is entered this same date.

Dated this 19th day of August, 2016.
/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE

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