Fazio v. Social Security Administration

Filing 20

MEMORANDUM AND ORDER: For the reasons discussed above, the Commissioner's decision is not based upon substantial evidence on the record as a whole and the cause is therefore remanded to the Commissioner for further consideration in accordance wi th this Memorandum and Order. Upon remand, the ALJ shall consider the opinions of Dr. Esses, along with the other evidence of record,perform a new credibility analysis, and formulate a new mental RFC based on the record as a whole. Signed by Magistrate Judge Abbie Crites-Leoni on 9/28/2016. (JMC)

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

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) Case No. 4:15 CV 807 ACL
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MEMORANDUM AND ORDER
Plaintiff James Fazio brings this action pursuant to 42 U.S.C. ' 405(g), seeking judicial
review of the Social Security Administration Commissioner’s denial of his application for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act and Supplemental
Security Income (“SSI”) under Title XVI of the Act.
An Administrative Law Judge (“ALJ”) found that, despite Fazio’s multiple severe
impairments, he was not disabled as he had the residual functional capacity (“RFC”) to perform
jobs that exist in significant numbers in the national economy.
This matter is pending before the undersigned United States Magistrate Judge, with
consent of the parties, pursuant to 28 U.S.C. § 636(c). A summary of the entire record is
presented in the parties’ briefs and is repeated here only to the extent necessary.
I. Procedural History
Fazio protectively filed his applications for DIB and SSI on March 6, 2014, alleging that he
became unable to work due to his disabling condition on November 10, 2011.1 (Tr. 263-68,

1

Fazio had previously filed applications for disability benefits under Title II and Title XVI that
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285-86, 604-05.) His claims were denied initially. (Tr. 287-91.) Following an administrative
hearing, Fazio’s claims were denied in a written opinion by an ALJ, dated January 28, 2015.
(Tr. 12-23.) Fazio then filed a request for review of the ALJ’s decision with the Appeals Council
of the Social Security Administration (SSA), which was denied on March 26, 2015. (Tr. 8, 1-5.)
Thus, the decision of the ALJ stands as the final decision of the Commissioner. See 20 C.F.R. ''
404.981, 416.1481.
In the instant action, Fazio claims that the “ALJ’s RFC is not supported by substantial
evidence.” (Doc. 16 at 3.)
II. The ALJ=s Determination
The ALJ stated that Fazio met the insured status requirements of the Social Security Act
through September 30, 2016. (Tr. 15.) The ALJ found that Fazio had not engaged in substantial
gainful activity since December 31, 2013. Id.
In addition, the ALJ concluded that Fazio had the following severe impairments:
post-traumatic stress disorder (PTSD), anxiety disorder, and depressive disorder (20 C.F.R. ''
404.1520(c) and 416.920(c)). Id. The ALJ found that Fazio did not have an impairment or
combination of impairments that meets or equals in severity the requirements of any listed
impairment. Id.
As to Fazio’s RFC, the ALJ stated:
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform a full range

were denied by an ALJ on December 30, 2013. (Tr. 562-77.) At a hearing before the ALJ on
November 7, 2014, Fazio’s counsel acknowledged the prior claims and stated that he was not
asking the ALJ to reopen them. (Tr. 538-39.) Thus, the relevant period for consideration of
Fazio’s current claim begins on December 31, 2013, the day after the last final denial of his
previous claims. (Tr. 13.)  
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of work at all exertional levels but with the following nonexertional
limitations: He can (1) understand, remember, and carry out
simple instructions; (2) have occasional interaction with
supervisors, co-workers, and the public; (3) make simple,
work-related decisions; and (4) tolerate occasional change in work
location.
(Tr. 17.)
The ALJ found that Fazio’s allegations regarding his limitations were not entirely credible.
(Tr. 18.) In determining Fazio’s RFC, the ALJ indicated that the opinion of Fazio’s treating
psychiatrist, Justin Esses, M.D., was entitled to “some, but not great weight.” (Tr. 19.) She
stated that he was giving “great weight” to the opinion of non-examining state agency consultant,
Keith L. Allen, Ph.D. Id.
The ALJ further found that Fazio has no past relevant work. (Tr. 21.) The ALJ noted
that a vocational expert testified that Fazio could perform jobs existing in significant numbers in
the national economy, such as stubber, lab equipment cleaner, and laundry worker. (Tr. 22.)
The ALJ therefore concluded that Fazio has not been under a disability, as defined in the Social
Security Act, from December 31, 2013, through the date of the decision. Id.
The ALJ’s final decision reads as follows:
Based on the application for a period of disability and disability
insurance benefits protectively field on March 6, 2014, the claimant
is not disabled under sections 216(i) and 223(d) of the Social
Security Act.
Based on the application for supplemental security income
protectively filed on March 6, 2014, the claimant is not disabled
under section 1614(a)(3)(A) of the Social Security Act.
(Tr. 23.)

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III. Applicable Law
III.A. Standard of Review
The decision of the Commissioner must be affirmed if it is supported by substantial
evidence on the record as a whole. 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 of the evidence, but enough that a reasonable person would find it adequate to
support the conclusion. Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This “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
quotation marks and citation omitted). “Substantial evidence on the record as a whole. . . requires
a more scrutinizing analysis.” Id. (internal quotation marks and citations 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.

The credibility findings made by the ALJ.

2.

The plaintiff’s vocational factors.

3.

The medical evidence from treating and consulting physicians.

4.

The plaintiff’s subjective complaints relating to exertional and
non-exertional activities and impairments.

5.

Any corroboration by third parties of the plaintiff’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.
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Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (internal
citations omitted). The Court must also consider any evidence which fairly detracts from the
Commissioner’s decision. Coleman, 498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047, 1050
(8th Cir. 1999). However, even though two inconsistent conclusions may be drawn from the
evidence, the Commissioner's findings may still be supported by substantial evidence on the
record as a whole. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001) (citing Young v.
Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). “[I]f there is substantial evidence on the record as a
whole, we must affirm the administrative decision, even if the record could also have supported an
opposite decision.” Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
marks and citation omitted). See also Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 977 (8th
Cir. 2003).
III.B. Determination of Disability
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 that has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. § 416.905. A claimant
has a disability when the claimant 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 significant numbers either in the region where such individual lives or in
several regions of the country.” 42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social Security
Act, the Commissioner follows a five-step sequential evaluation process outlined in the

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regulations. 20 C.F.R. § 416.920; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). First,
the Commissioner will consider a claimant’s work activity. If the claimant is engaged in
substantial gainful activity, then the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see “whether the claimant has a severe impairment that significantly limits the claimant’s
physical or mental ability to perform basic work activities.” Dixon v. Barnhart, 343 F.3d 602,
605 (8th Cir. 2003). “An impairment is not severe if it amounts only to a slight abnormality that
would not significantly limit the claimant’s physical or mental ability to do basic work activities.”
Kirby, 500 F.3d at 707; see 20 C.F.R. §§ 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes necessary to
do most jobs.” 20 C.F.R. § 416.921(b). These abilities and aptitudes include (1) physical
functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and
remembering simple instructions; (4) use of judgment; (5) responding appropriately to
supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work
setting. Id. § 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 2291
(1987). “The sequential evaluation process may be terminated at step two only when the
claimant’s impairment or combination of impairments would have no more than a minimal impact
on her ability to work.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotation
marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled, regardless

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of age, education, and work experience. 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d); see Kelley
v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements” of
the claimant’s past relevant work. 20 C.F.R. §§ 416.920(a)(4)(iv), 416.945(a)(4). “RFC is a
medical question defined wholly in terms of the claimant’s physical ability to perform exertional
tasks or, in other words, what the claimant can still do despite his or her physical or mental
limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks
omitted); see 20 C.F.R. § 416.945(a)(1). The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the claimant]
get medical reports from [the claimant’s] own medical sources.” 20 C.F.R. § 416.945(a)(3).
The Commissioner also will consider certain non-medical evidence and other evidence listed in
the regulations. See id. If a claimant retains the RFC to perform past relevant work, then the
claimant is not disabled. Id. § 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is other
work that the claimant can do, given the claimant’s RFC as determined at Step Four, and his or her
age, education, and work experience. See Bladow v. Apfel, 205 F.3d 356, 358-59 n.5 (8th Cir.
2000). The Commissioner must prove not only that the claimant’s RFC will allow the claimant to
make an adjustment to other work, but also that the other work exists in significant numbers in the

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national economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
numbers in the national economy, then the Commissioner will find the claimant is not disabled. If
the claimant cannot make an adjustment to other work, then the Commissioner will find that the
claimant is disabled. 20 C.F.R. §416.920(a)(4)(v). At Step Five, even though the burden of
production shifts to the Commissioner, the burden of persuasion to prove disability remains on the
claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
The evaluation process for mental impairments is set forth in 20 C.F.R. '' 404.1520a,
416.920a. The first step requires the Commissioner to Arecord the pertinent signs, symptoms,
findings, functional limitations, and effects of treatment@ in the case record to assist in the
determination of whether a mental impairment exists. See 20 C.F.R. '' 404.1520a(b)(1),
416.920a(b)(1). If it is determined that a mental impairment exists, the Commissioner must
indicate whether medical findings Aespecially relevant to the ability to work are present or absent.@
20 C.F.R. '' 404.1520a(b)(2), 416.920a(b)(2). The Commissioner must then rate the degree of
functional loss resulting from the impairments in four areas deemed essential to work: activities
of daily living, social functioning, concentration, and persistence or pace. See 20 C.F.R. ''
404.1520a(b)(3), 416.920a(b)(3). Functional loss is rated on a scale that ranges from no
limitation to a level of severity which is incompatible with the ability to perform work-related
activities. See id. Next, the Commissioner must determine the severity of the impairment based
on those ratings. See 20 C.F.R. '' 404.1520a(c), 416.920a(c). If the impairment is severe, the
Commissioner must determine if it meets or equals a listed mental disorder. See 20 C.F.R. ''
404.1520a(c)(2), 416.920a(c)(2). This is completed by comparing the presence of medical
findings and the rating of functional loss against the paragraph A and B criteria of the Listing of the

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appropriate mental disorders. See id. If there is a severe impairment, but the impairment does
not meet or equal the listings, then the Commissioner must prepare an RFC assessment. See 20
C.F.R. '' 404.1520a(c)(3), 416.920a(c)(3).
IV. Discussion
Fazio argues that the ALJ’s RFC determination is not supported by substantial evidence.
Specifically, Fazio contends that the ALJ improperly assessed his credibility and discredited the
opinion of treating psychiatrist Dr. Esses. Fazio does not challenge the ALJ’s determination that
his medically determinable physical impairments are not severe. The undersigned will therefore
limit the discussion herein to Fazio’s mental impairments.
Residual functional capacity is defined as that which a person remains able to do despite
his limitations. 20 C.F.R. § 404.1545(a), Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001). The
ALJ must assess a claimant’s RFC based upon all relevant, credible evidence in the record,
including medical records, the observations of treating physicians and others, and the claimant’s
own description of his symptoms and limitations. 20 C.F.R. § 404.1545(a); Anderson v. Shalala,
51 F.3d 777, 779 (8th Cir. 1995); Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005). A
claimant’s RFC is a medical question, and there must be some medical evidence, along with other
relevant, credible evidence in the record, to support the ALJ’s RFC determination. Id.; Hutsell v.
Massanari, 259 F.3d 707, 711–12 (8th Cir. 2001); Lauer, 245 F.3d at 703–04; McKinney v. Apfel,
228 F.3d 860, 863 (8th Cir. 2000). An ALJ’s RFC assessment which is not properly informed and
supported by some medical evidence in the record cannot stand. Hutsell, 259 F.3d at 712.
However, although an ALJ must determine the claimant’s RFC based upon all relevant evidence,
the ALJ is not required to produce evidence and affirmatively prove that a claimant is able to
perform certain functions. Pearsall, 274 F.3d at 1217 (8th Cir. 2001); McKinney, 228 F.3d at

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863. The claimant bears the burden of establishing his RFC. Goff, 421 F.3d at 790.
In determining Fazio’s mental RFC, the ALJ first found that the record reflects that Fazio
has “had improvement in his symptoms with the use of medication and therapy.” (Tr. 18.) The
ALJ stated that Fazio has been taking Klonopin2 since 1992, and Remeron3 since 1997 without
side effects. Id. She noted that therapy treatment notes show that Fazio attributes his anxiety to
his work when he served in the Air Force. Id.
The record reveals Fazio underwent a counseling evaluation at Creve Coeur Community
Counseling on July 19, 2013. (Tr. 799-805.) Fazio reported that he sought counseling when he
began to have suicidal thoughts a couple of months prior and realized he needed help. (Tr. 799.)
He reported he has anxiety whenever he leaves his apartment and encounters people, has panic
attacks when shopping, and becomes depressed when he realizes he is not able to perform even the
simplest everyday activity. Id. Fazio was taking Remeron and Klonopin prescribed from
physicians at the VA. (Tr. 800.) Fazio reported that he had left his last job as a debt collector in
2011 because the pressure caused him to experience flashbacks to his military experience. (Tr.
802.) Fazio reported that he enjoyed running, working out, writing poems, singing, and playing
guitar. Id. Upon mental status examination, Fazio maintained normal eye contact and was
generally cooperative. (Tr. 802.) It was noted that, when Fazio goes more than one week
between sessions, he seems more highly agitated, and talks louder and faster. (Tr. 803.) Fazio
appeared to have good memory, reported his mood as depressed, his affect appeared concerned,
his affect became agitated and anxious after stressful situations, his conversations varied as to
coherence, the content of thought tended to focus on physical abuse while growing up and his time

2

Klonopin is indicated for the treatment of panic attacks. See WebMD,
http://www.webmd.com/drugs (last visited August 15, 2016).
3
Remeron is indicated for the treatment of depression. See WebMD,
http://www.webmd.com/drugs (last visited August 15, 2016).
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in the Air Force, his cognitive skills were normal, he appeared to have good insight into his current
symptoms, and he was capable of managing his financial and personal matters. (Tr. 803.) Fazio
was diagnosed with panic disorder with agoraphobia, rule out PTSD, depressive disorder not
otherwise specified, and a current GAF score of 35.4 (Tr. 804.)
In a Status Report dated November 8, 2013, it was noted that Fazio had continued with
weekly counseling sessions, and was consistently engaged and cooperative in sessions. (Tr. 79.)
Fazio reported “little mitigation of his symptoms” and reported that he remained “depressed,
highly anxious, prone to panic attacks, and agoraphobic.” Id. Fazio also reported increased
suicidal ideation in recent weeks, and a specific phobia of dogs after having been bitten by a
neighbor’s dog several weeks prior. Id. It was noted that Fazio reported using cognitive
behavioral techniques he had learned from a previous counselor to control his depressive thoughts,
which required a tremendous amount of emotional energy to accomplish. Id. On October 25,
2013, Fazio reported fatigue and frustration with his attempts at emotional control. In subsequent
sessions, he reported increased depression, anxiety, and suicidal ideation. Id. On October 28,
2013, Fazio called his counselor and reported concern over suicidal ideation. Id. Fazio was
instructed to go to the ER if the thoughts continued. (Tr. 80.) Fazio’s diagnosis was changed to
include a diagnosis of likely PTSD and specific phobia; his GAF score of 35 remained unchanged.
Id.
Fazio saw VA psychiatrist Dr. Esses on November 22, 2013, at which time he reported

4

A GAF score between 31 and 40 indicates some impairment in reality testing or communication
(e.g., some speech is at times illogical, obscure, or irrelevant); or major impairment in several
areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed
person avoid friends, neglects family, and is unable to work). See American Psychiatric Ass’n.,
Diagnostic and Statistical Manual of Mental Disorders 34 (Text Revision 4th ed. 2000) (“DSM
IV-TR”). 

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continued anxiety. (Tr. 929.) Fazio had less panic attacks but more episodes that related to
chemical attacks. Id. Overall, Fazio felt his therapy was helping and his medications were
optimal. Id. Upon examination, Fazio’s thought processes were normal, he did not report
suicidal ideation, his insight and judgment were intact, his memory was intact, his attention and
concentration were normal, his mood was anxious, and his affect was calm. (Tr. 930.) Dr. Esses
diagnosed Fazio with panic disorder without agoraphobia, rule out PTSD (diagnosis difficult given
he cites classified nature of events prevents him from speaking of it), and alcohol abuse in
remission. Id. Dr. Esses continued Fazio on his current medications and weekly therapy for
anxiety. (Tr. 931.)
On February 25, 2014, Fazio presented to St. Joseph Health Center with complaints of
suicidal ideation. (Tr. 869.) Fazio reported that he had been having thoughts of suicide the past
week, and was feeling depressed, distraught, dysphoric, and anhedonic. Id. He indicated that he
was doing fairly well until recently when his therapist graduated from a training program and was
unable to continue to provide free treatment. Id. Fazio had been compliant with his medications.
Id. He still had nightmares and flashbacks from his service. (Tr. 869-70.) Fazio was diagnosed
with PTSD, generalized anxiety disorder, and a GAF of 35. (Tr. 870.) He was admitted for
inpatient psychiatric treatment with group therapy, individual counseling, behavior management,
and medication management. (Tr. 870.) He was discharged on February 28, 2014, at which time
he was assessed a GAF score of 50.5 Id.
Fazio started receiving counseling at Crider Health Center (“Crider”) in March 2014, at
which time Fazio’s mood was “ok”, his behavior was appropriate, he was cooperative, his memory
was intact, his thought process was logical, and his insight and judgment were fair. (Tr. 1019.)

5

A GAF score of 41 to 50 indicates “serious symptoms” or “any serious impairment in social,
occupational, or school functioning (e .g., no friends, unable to keep a job).” DSM IV-TR at 34.
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Fazio reported that he was very isolative and he had gone over a month without going out of the
house. (Tr. 1023.) He also reported having a PTSD episode almost every day. Id. Fazio was
diagnosed with PTSD, rule out panic attacks, rule out generalized anxiety disorder, rule out major
depressive disorder, and a GAF score of 36. (Tr. 1020.)
Fazio saw Dr. Esses for follow-up on April 11, 2014, at which time he had no suicidal
thoughts, but reported anxiety, worry, trouble relaxing, feeling afraid nearly every day, he was
avoidant of others, and had difficulty interacting with his roommate. (Tr. 1040-41.) Upon
examination, Fazio had normal thought processes and thought content, intact judgment, intact
memory, intact attention and concentration, and his mood and affect were anxious. (Tr. 1041.)
Dr. Esses’ diagnoses remained unchanged. (Tr. 1042.) He continued Fazio’s medications, and
recommended therapy. Id.
Fazio saw psychiatrist Almas Rahman, M.D., at Crider for medication management on
April 21, 2014, at which time he reported doing “ok,” although he reported sleep disturbance.
(Tr. 1062-63.) Fazio’s grooming was fair, his eye contact was good, he was cooperative, his
attention was normal, his mood was euthymic, his thought content was normal, and his judgment
and insight were fair. (Tr. 1063-64.) Dr. Rahman diagnosed Fazio with PTSD, and assessed a
GAF score of 45. (Tr. 1064.) On May 12, 2014, Fazio again reported that he was doing “ok.”
(Tr. 1056.) He indicated that he had met with a senator about issues with the VA as they pertain
to his disability. Id. Fazio’s grooming was fair, his eye contact was good, his behavior was
appropriate, his thought content was normal, and his insight and judgment were fair. (Tr.
1057-58.) Fazio’s diagnosis remained unchanged. Id. Dr. Rahman continued Fazio’s
medications and counseling. (Tr. 1059.) On June 9, 2014, Fazio reported that he was worried
about his upcoming SSA hearing, his mood had been nervous, he kept to himself at times, he

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worried about his finances, and his sleep pattern was variable. (Tr. 1050.) Dr. Rahman indicated
that he had recommended an additional medication, but Fazio declined it. Id. Dr. Rahman
continued Fazio’s medications. (Tr. 1053.) In a letter dated June 18, 2014, Dr. Rahman stated
that Fazio had been receiving treatment from Crider since 2012 and has been diagnosed with
PTSD with a GAF score of 36. (Tr. 1081.) Dr. Rahman stated that, most recently, Fazio’s
illness “has been manifesting in the form [of] anxiety, social withdrawal, and difficulty sleeping.”
Id.
Fazio presented to VA psychiatric nurse practitioner Barbara S. Latal on June 23, 2014,
with complaints of anxiety, depression, sleep difficulties, and nightmares. (Tr. 1183.) He
reported occasional suicidal ideation, although he indicated he was able to direct his focus onto
another subject and stop thinking about suicide. Id. Fazio also reported daily panic-level
anxiety, which increases when he has flashbacks. Id. He indicated that his flashbacks include
hallucinations. Id. Fazio was seeing a therapist for cognitive therapy—Doris Irvin. Id. Upon
examination, Ms. Latal noted decreased eye contact at times, circumstantial speech at times,
impaired concentration, and impaired insight and judgment. (Tr. 1184.) Ms. Latal diagnosed
Fazio with panic disorder without agoraphobia and continued his medications. (Tr. 1185.)
Fazio saw social worker Herbert Lomax, Ph.D., at the VA on the same date for psychotherapy
related to his panic disorder. (Tr. 1146.)
On July 14, 2014, Fazio’s mood was fair, and his sleep pattern was erratic. (Tr. 1094.)
Dr. Rahman indicated that Fazio had seen a nurse practitioner at the VA, Amy Benson, who
prescribed medications for him; and saw a psychologist at the VA, Dr. Lomax. Id. Fazio’s
diagnosis remained unchanged, and Dr. Rahman continued his medications. (Tr. 1097.) On
August 18, 2014, Fazio reported that he had been meeting with Ms. Irvin, which had helped him.

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(Tr. 1088.) He reported paranoia around new people and in stores. Id. Dr. Rahman suggested
adding a medication, but Fazio declined. Id. On October 14, 2014, Fazio reported that he gets
paranoid when he is around a lot of people, his sleep pattern is variable, and he has flashbacks at
times. (Tr. 1082.) Dr. Rahman continued Fazio’s medications. (Tr. 1085.)
Fazio presented to Ms. Latal on August 27, 2014, at which time he reported he was doing
about the same as when he was last seen. (Tr. 1154.) He indicated that he did not leave the
house much except to walk or for appointments, he slept three to four hours a night, he felt
depressed at times, and had passive suicidal ideation. Id. Upon examination, Ms. Latal noted
Fazio’s motor activity was abnormal, his mood was depressed at times, his affect was anxious, he
exhibited decreased eye contact, and his insight and judgment were fair. (Tr. 1154-55.) Ms.
Latal increased Fazio’s Remeron. (Tr. 1156.) Fazio also saw Dr. Lomax for therapy. (Tr.
1152-53.) Fazio reported that he had been compliant with his medications, and indicated that
they were beneficial in providing relief from symptoms of anxiety. (Tr. 1152.) Fazio reported
continued problems with social isolation, paranoid ideations, and racing thoughts. Id. Upon
mental status examination, Dr. Lomax noted decreased interest, increased guilt, decreased energy,
decreased concentration, decreased appetite, and decreased psychomotor activity. Id. Dr.
Lomax stated that difficulties with negative self-talk and negative cognitions have been problems
in Fazio’s life and contributed to social isolation and paranoid ideations. Id. On September 29,
2014, Dr. Lomax indicated that Fazio believed his medications were beneficial in providing relief
from symptoms of panic attacks. (Tr. 1146.)
The medical evidence discussed above reveals that Fazio received extensive treatment for
his mental impairments, consisting of regular visits to psychiatrists and nurse practitioners for
medication management, psychotherapy, counseling, and cognitive therapy. While Fazio did

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report that his medications helped with his symptoms, the treatment notes demonstrate that Fazio
continued to experience significant symptoms including anxiety, social isolation, paranoid
ideations, sleep difficulty, flashbacks, and depression despite medication compliance.
The ALJ next discussed the opinion evidence. She noted that Dr. Esses, Fazio’s treating
psychiatrist at the VA, authored a letter dated August 2, 2013. (Tr. 19, 199.) Dr. Esses stated
that Fazio has a long history of symptoms of PTSD, for which he has a history of a psychiatric
admission. Id. Dr. Esses stated that Fazio’s “anxiety is to the degree that it interferes with his
ability to communicate effectively in social spheres including employment,” and that he would
have “substantial limitations in dealing with coworkers and supervisors.” Id. Dr. Esses further
stated that Fazio’s “attention, mood, and reliability are affected.” Id. He indicated that Fazio’s
prognosis was “guarded” and that he did not expect resolution of Fazio’s anxiety in the next twelve
months. Id. Dr. Esses referred the reader to his “detailed notes dated February 8, 2013 and July
12, 2013 for additional details.” Id. At Fazio’s initial visit in February 2013, Dr. Esses noted
that Fazio had been diagnosed with panic disorder by “several psychiatrists over the past decade
both here and at the Richmond VAMC.” (Tr. 981.) In July 2013, Dr. Esses noted that Fazio had
been seeing a non-VA psychologist weekly and has continued anxiety. (Tr. 943.) Fazio
discussed traumatic events that occurred during his service, and reported intrusive thoughts,
nightmares, and poor sleep. Id. Fazio was described as anxious on examination. (Tr. 944.)
Dr. Esses diagnosed Fazio with panic disorder without agoraphobia, and rule out PTSD. (Tr.
945.) He continued Fazio’s medications, and referred him to a PTSD clinic. (Tr. 945.)
The ALJ stated that Dr. Esses’ opinion was “not inconsistent with the medical evidence,
which indicates the claimant has anxiety. However, the opinion does not define the claimant’s
limitations in occupationally relevant terms.” Id. The ALJ further stated that “there is no

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evidence that the claimant would be unable to work if he only had to make simple decisions and
had limited contact with others.” Id. The ALJ assigned “some, but not great weight” to Dr.
Esses’ opinion. Id.
Fazio argues that the ALJ erred in discrediting Dr. Esses’ opinion. “‘It is the ALJ’s
function to resolve conflicts among the various treating and examining physicians.” Tindell v.
Barnhart, 444 F.3d 1002, 1005 (8th Cir. 2006) (quoting Vandenboom v. Barnhart, 421 F.3d 745,
749–50 (8th Cir. 2005) (internal marks omitted)). The opinion of a treating physician will be
given “controlling weight” only if it is “well supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the]
record.” Prosch v. Apfel, 201 F.3d 1010, 1012–13 (8th Cir. 2000). The record, though, should
be “evaluated as a whole.” Id. at 1013 (quoting Bentley v. Shalala, 52 F.3d 784, 785–86 (8th Cir.
1997)). The ALJ is not required to rely on one doctor’s opinion entirely or choose between the
opinions. Martise v. Astrue, 641 F .3d 909, 927 (8th Cir. 2011). Additionally, when a
physician’s records provide no elaboration and are “conclusory checkbox” forms, the opinion can
be of little evidentiary value. See Anderson v. Astrue, 696 F.3d 790, 794 (8th Cir. 2012).
Regardless of the decision the ALJ must still provide “good reasons” for the weight assigned the
treating physician’s opinion. 20 C.F.R § 404.1527(d)(2).
The ALJ must weigh each opinion by considering the following factors: the examining and
treatment relationship between the claimant and the medical source, the length of the treatment
relationship and the frequency of examination, the nature and extent of the treatment relationship,
whether the physician provides support for his findings, whether other evidence in the record is
consistent with the physician's findings, and the physician’s area of specialty. 20 C.F.R. §§
404.1527(c)(1)-(5), 416.927(c)(1)-(5).

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Fazio argues that the ALJ provided insufficient reasons for discrediting Dr. Esses’ opinion.
The undersigned agrees. First, by the ALJ’s own assessment, Dr. Esses’ opinion was “not
inconsistent with the medical evidence.” (Tr. 19.) Second, the ALJ discredited this opinion
because Dr. Esses did not define Fazio’s limitations in occupationally relevant terms, yet Dr. Esses
completed a Mental Assessment of Ability to Do Work-Related Activities (“Assessment”) on the
same date he authored his letter. (Tr. 201-02.) In his Assessment, Dr. Esses stated that he had
seen Fazio in February 2013 and in July 2013. (Tr. 202.) Dr. Esses expressed the opinion that
Fazio was capable of performing the following work-related activities “seventy percent or less” of
the work day: relate to co-workers, deal with the public, interact with supervisors, deal with work
stress, maintain attention/concentration, behave in an emotionally stable manner, relate
predictably in social situations, and demonstrate reliability. Id. Dr. Esses indicated that the
assessed limitations had existed since Fazio’s alleged onset date of November 10, 2011. (Tr.
202.) Finally, he stated that Fazio’s prognosis was guarded, as he had experienced symptoms for
over ten years and they were unlikely to remit. Id.
The ALJ failed to discuss Dr. Esses’ Assessment defining Fazio’s limitations in
occupationally relevant terms, suggesting that he did not review this evidence. The ALJ’s finding
that there was no evidence that Fazio would be unable to work if he only had to make simple
decisions and had limited contact with others is not supported by Dr. Esses’ Assessment. Dr.
Esses found that Fazio was limited in a number of areas that were not adequately accounted for in
the ALJ’s RFC determination. The ALJ’s stated reasons for discrediting Dr. Esses’ opinion is
not, therefore, supported by substantial evidence.
The ALJ made the following determination regarding Fazio’s mental RFC:
He can (1) understand, remember, and carry out simple instructions; (2) have
occasional interaction with supervisors, co-workers, and the public; (3) make
simple, work-related decisions; and (4) tolerate occasional change in work location.
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(Tr. 17.)
Defendant argues that, even if the Court concluded that the ALJ’s RFC finding did not
incorporate all of the limitations that Dr. Esses assessed, the ALJ’s RFC finding is still supported
by substantial evidence. Defendant also points out that Dr. Esses had only seen Fazio on two
occasions—in February 2013 and July 2013—when he rendered his opinion. Defendant argues
that Dr. Esses was not, therefore a treating physician.
“Treating physicians are defined broadly by the regulations as any physician who has
provided the claimant with medical treatment or evaluation and who has, or has had, an ongoing
treatment relationship with the claimant.” Dewald v. Astrue, 590 F. Supp.2d 1184, 1200 (D.S.D.
2008) (citing 20 C.F.R. '' 404.1502, 416.902). Although Dr. Esses only saw Fazio two times
when he provided his opinion, a physician “need not provide treatment at all times to be
considered a treating physician.” Id. In addition, Dr. Esses was a VA psychiatrist, and, as such
had access to the record of Fazio’s extensive treatment received at the VA. Dr. Esses referred to
the fact that Fazio had seen “several psychiatrists over the past decade” at VA facilities. (Tr.
981.) Even if Dr. Esses were only an examining physician, his opinions “were entitled to more
weight than nonexamining sources.” Id. at 1201; 20 C.F.R. §§ 404.1527(d)(1); 416.927(d)(1).
The only other opinion evidence of record was provided by a non-examining state agency
consultant, Keith L. Allen, Ph.D. (Tr. 597.) Dr. Allen expressed the opinion on May 20, 2014,
that Fazio was moderately limited in his ability to carry out detailed instructions, interact
appropriately with the general public, and respond appropriately to changes in the work setting.
(Tr. 600-01.) He stated that Fazio “appears capable of performing at least simple, repetitive tasks
as otherwise physically able.” (Tr. 597.) The ALJ found that Dr. Allen’s opinion was consistent
with the mental health treatment notes, which show “routine treatment and improvement with
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medication.” (Tr. 19.) The ALJ noted that Fazio consistently reported that medications helped
his symptoms and that he was in an “okay” mood. (Tr. 21.) The ALJ stated that the opinion was
also consistent with Fazio’s reports that he “tries to keep his mind occupied and self performs
cognitive therapy during the day, which suggests he is at least capable of making simple decisions
and performing simple, routine tasks.” Id. The ALJ indicated she was therefore assigning “great
weight” to Dr. Allen’s opinion. Id.
Opinions of non-treating, non-examining sources ordinarily do not constitute substantial
evidence on the record as a whole and are generally accorded less weight than opinions from
examining sources. Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010); Wildman v. Astrue,
596 F.3d 959, 967 (8th Cir. 2010). This is especially true when evidence contrary to the
non-examining source’s opinion exists in the record. See Davis v. Schweiker, 671 F.2d 1187,
1189 (8th Cir. 1982). When evaluating the opinion of a non-examining source, the ALJ must
evaluate the degree to which the opinion considers all of the pertinent evidence, including opinions
of treating and other examining sources. Wildman, 596 F.3d at 967; 20 C.F.R. § 404.1527(d)(3)
(2011).
As discussed above, the mental health treatment notes do not support the ALJ’s finding that
Fazio improved with routine treatment. It is true that Fazio reported that his mood was “ok” on
some visits and that his medication helped. The Court notes, however, that recognition must be
given to the instability of mental impairments and their waxing and waning nature after
manifestation. See Rowland v. Astrue, 673 F. Supp.2d 902, 920–21 (D.S.D. 2009) (citing Jones v.
Chater, 65 F.3d 102, 103 (8th Cir. 1995)). “Although the mere existence of symptom-free
periods may negate a finding of disability when a physical impairment is alleged, symptom-free
intervals do not necessarily compel such a finding when a mental disorder is the basis of a claim.”

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Andler v. Chater, 100 F.3d 1389, 1393 (8th Cir. 1996). “Symptom-free intervals and brief
remissions are generally of uncertain duration and marked by the impending possibility of
relapse.” Id. Given that a claimant’s level of mental functioning may seem relatively adequate
at a specific time, proper evaluation of the impairment must take into account a claimant's level of
functioning “over time.” 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00(D)(2).
In this case, Fazio continued to exhibit significant psychiatric symptoms despite treatment
and medication compliance. Similarly, the fact that Fazio attempted to employ cognitive therapy
techniques learned during therapy to alleviate his anxiety symptoms does not demonstrate that he
is capable of working. In fact, treatment notes indicate that employing these techniques required
“a tremendous amount of emotional energy to accomplish.” (Tr. 79.)
Fazio also argues that the ALJ erred in finding several pieces of evidence detracted from
Fazio’s credibility. “If an ALJ explicitly discredits the claimant’s testimony and gives good
reasons for doing so, the Court should defer to the ALJ’s credibility determination.” Gregg v.
Barnhart, 354 F.3d 710, 713 (8th Cir. 2003).
First, the ALJ stated that the fact that Fazio “has joined a veterans’ musical group and plays
guitar with them...reflects the claimant has more social abilities than alleged.” (Tr. 21.) Fazio
argues that the ALJ mischaracterized Fazio’s testimony. The undersigned agrees. Fazio
testified that he joined a musical group of “veterans that have post-traumatic stress,” and that
playing guitar helps ease the symptoms of PTSD. (Tr. 549.) Fazio further testified that he does
not meet socially with this group because he “can’t.” (Tr. 555.) Fazio testified that he has
“episodes with anybody. I have trouble talking on the phone.” Id. The fact that Fazio plays
guitar with other veterans with PTSD as means of therapy is not a basis to discredit Fazio’s
allegations of social difficulties.

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Fazio next contends that the ALJ erred in using the testimony of Doris Irvin to discredit
Fazio’s subjective allegations. Ms. Irvin testified at the administrative hearing that she is a
hospital intake specialist at Crider. (Tr. 557.) Ms. Irvin stated she has a master’s degree in
counseling. Id. Ms. Crider testified that it is her job to see patients after they come out of
hospitalizations and try to engage them in services, and then work with them for stabilization
purposes. Id. Ms. Crider stated that she thinks Fazio is disabled because “his anxiety is so
debilitating for him.” Id. Ms. Crider explained that, even though she is a counselor and is a “safe
place” for Fazio, he still has trouble talking with her sometimes. (Tr. 558.) She stated that Fazio
has paranoia, severe depression, suicidal ideation, and difficulty functioning even in his room. Id.
Ms. Crider stated that Fazio isolates himself because he is fearful of people. Id. Ms. Crider
testified that she has taken Fazio grocery shopping before, which is a very anxiety-provoking
experience for him. (Tr. 559.) She stated that, on one occasion, Fazio became overcome with
fear and anxiety when he saw that there were three to four other people in the bread aisle and told
her that he could not walk down that aisle. Id.
The ALJ stated that the medical evidence of record does not support the debilitating
symptoms assessed by Ms. Irvin. (Tr. 20.) The ALJ stated that “[b]y [Ms. Irvin’s] own
testimony, the claimant is able to interact with her, go outside of his apartment and go to a grocery
store, which shows the claimant is capable of social interactions.” Id. The ALJ misconstrued
Ms. Irvin’s testimony. Ms. Irvin testified that Fazio has significant difficulties with all social
interactions, including his interactions with her. Ms. Irvin stated that Fazio was overcome with
anxiety during a trip to the grocery store with her when he saw people in the bread aisle. The fact
that Fazio experienced significant anxiety when he went to the grocery store accompanied by a
counselor does not show that he is capable of social interactions in a work setting.

Page 22 of 24 

The mental RFC formulated by the ALJ is not supported by substantial evidence. The
only evidence supporting the ALJ’s determination is the opinion of the non-examining state
agency consultant, Dr. Allen. The ALJ’s finding that Fazio’s mental condition improved with
medication, based on the fact that Fazio reported an “okay” mood at times, is refuted by the
medical evidence as a whole.

These records reveal that Fazio continued to experience

significant psychiatric symptomatology, including anxiety, paranoia, social isolation, PTSD
symptoms, and occasional suicidal ideations. Fazio was hospitalized due to suicidal ideation in
February of 2014. Fazio’s GAF scores, which were typically in the range of 35 to 50 during the
relevant period, are consistent with the serious symptoms observed. Although GAF scores do not
have a direct correlation to SSA severity requirements, they may be considered in reviewing an
ALJ’s determination that a treating source’s opinion was inconsistent with the treatment record.
Myers v. Colvin, 721 F.3d 521, 525 (8th Cir. 2013).
In sum, the ALJ relied on factual inaccuracies in discrediting the opinion of Fazio’s
treating psychiatrist, Dr. Esses, regarding Fazio’s limitations.
reviewed the Assessment provided by Dr. Esses.

It does not appear that the ALJ

The ALJ then assigned great weight to the

opinion of a non-examining state agency consultant, which was less restrictive than the
limitations found by Dr. Esses.
reasons.

The ALJ also discredited Fazio’s credibility for improper

The ALJ’s mental RFC was based on these erroneous findings. Thus, the ALJ’s

mental RFC is not supported by substantial evidence.
V. Conclusion
For the reasons discussed above, the Commissioner’s decision is not based upon
substantial evidence on the record as a whole and the cause is therefore remanded to the
Commissioner for further consideration in accordance with this Memorandum and Order. Upon

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remand, the ALJ shall consider the opinions of Dr. Esses, along with the other evidence of record,
perform a new credibility analysis, and formulate a new mental RFC based on the record as a
whole.

/s/ Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 28th day of September, 2016.

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