Smith v. Colvin

Filing 23

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and the case is REMANDED for further proceedings. A separate Judgment will accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on May 24, 2016. (BRP)

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

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Case No. 4:15CV01388 AGF

MEMORANDUM AND ORDER
This action is before this Court for judicial review of the final decision of the
Commissioner of Social Security finding that Plaintiff Eric Smith was not disabled, and,
thus, not entitled to Supplemental Security Income under Title XVI of the Act, 42 U.S.C.
§§ 1381-1383f. For the reasons set forth below, the decision of the Commissioner shall be
reversed and the case remanded for further proceedings.
BACKGROUND
Plaintiff, who was born on December 15, 1978, filed his applications for benefits on
December 19, 2011 (with a protective filing date of November 23, 2011), alleging a
disability primarily due to bipolar disorder. After Plaintiff=s application was denied at the
initial administrative level, he requested a hearing before an Administrative Law Judge
(“ALJ”). Such a hearing was held on August 20, 2013. By decision dated April 8, 2014,
the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to perform
certain jobs that were available in the national economy, and was thus not disabled under

the Act. Plaintiff=s request for review by the Appeals Council of the Social Security
Administration was denied on July 14, 2015. Plaintiff has thus exhausted all
administrative remedies and the ALJ=s decision stands as the final agency action now under
review.
Agency Records
On December 19, 2011, an employee of the Social Security Administration who
interviewed Plaintiff in connection with his application for benefits, observed as follows:
[Plaintiff] kept switching the subject, talking about things that happened in
his childhood, prison, and at different jobs. He had difficulty answering
questions because he would forget the question fairly quickly. I had to
repeat and explain the same information several times. He was unsure
what his condition was, and he was paranoid about giving the information.
He kept saying people were going to steal his identity.
(Tr. 125.)
Medical Evidence
On February 9, 2010, Plaintiff underwent psychiatric assessment, apparently at the
referral of his parole officer.1 Plaintiff reported that he believed that messages on the TV
were related to things he was doing or planning, but he denied auditory hallucinations, as
well as anxiety, depression, or visual hallucinations. On mental status examination,
Plaintiff’s memory was intact and he had adequate insight and judgment. Plaintiff was

The record indicates that Plaintiff had spent five years in prison on a weapons charge
and was released in August 2007.

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diagnosed with possible psychosis, an impulse control problem, antisocial personality
disorder, and a Global Assessment of Functioning (“GAF”) score of 50-55.2 (Tr. 189-91.)
On February 2, 2012, Plaintiff established psychiatric care with Shazia Malik, M.D.
Dr. Malik observed that Plaintiff was suspicious, affect was constricted, mood was
depressed and anxious, thought process was tangential, paranoia was exhibited,
concentration was decreased, and insight and judgment were fair. Dr. Malik assessed
bipolar disorder and a GAF score of 55. He prescribed Depakote (used to treat manic
episodes related to bipolar disorder) and Latuda (used for treatment of bipolar depression),
and outpatient psychotherapy sessions twice weekly. (Tr. 277-78.)
On February 27, 2012, Lloyd Moore, Ph.D., conducted a consultative mental status
examination at the request of Defendant. Plaintiff reported that, although his drivers’
license was suspended due to a motor vehicle accident, he drove himself to the evaluation.
He reported that he got married in 2011 and was living with his wife. Plaintiff graduated
from high school and went to community college for one semester. He then went to
barber school but was kicked out for “having an encounter with a superviser.” Plaintiff’s
work history was sparse; he reported that he was fired multiple times for losing his temper
A GAF score represents a clinician’s judgment of an individual’s overall ability to
function in social or occupational settings, not including impairments due to physical or
environmental limitations. Diagnostic & Statistical Manual of Mental Disorders (4th ed.)
(DSM-IV) at 32. GAF scores of 31-40 indicate some impairment in reality testing or
communication or a major impairment in social or occupational functioning; scores of
41-50 reflect a serious impairment in these functional areas; scores of 51-60 indicate a
moderate impairment; scores of 61-70 indicate a mild impairment. In June 2013, the
DSM-V replaced the “more limited” GAF score system with the WHO Disability
Assessment Schedule (WHODAS).
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and his inability to focus on the job. Plaintiff reported that he last worked in April 2011
when he was fired for “inappropriate behavior” with a female worker. He never kept a job
for more than three months, with the exception of being a warehouseman for two years.
Dr. Moore wrote that Plaintiff was unable to provide specific dates for his employment,
and in general could not provide accurate data, which Dr. Moore opined was due to
Plaintiff’s “inability to focus on time as opposed to malingering.” (Tr. at 219.) Dr.
Moore observed that Plaintiff was oriented and his memory was intact although he had
difficulties with specific times and dates. His general knowledge was fair to good, he
could repeat seven digits forward on immediate recall and five digits backward, and he
performed simple mathematical calculations without difficulty.
Plaintiff reported that he was currently taking Depakote and Latuda. He denied
suicidal or homicidal ideation, but reported hearing voices. Dr. Moore observed that
Plaintiff presented with some inappropriate behaviors like laughing at inappropriate times.
At one point in his report, Dr. Moore wrote that Plaintiff presented with some delusional
thinking, but shortly after that comment, he wrote that Plaintiff did not display any
delusional thinking. The following statement appears in Dr. Moore’s report: “[Plaintiff]
is unemployed and states he can find a job and does not need to work a job.” (Tr. at 221.)
Dr. Moore diagnosed bipolar affective disorder, intermittent explosive disorder,
personality disorder with antisocial traits, and a GAF of 50-55. He noted Plaintiff’s
inability to develop, maintain, and sustain employment; poor coping skills; and chronic
difficulties with hyperactivity. Dr. Moore assessed a moderate impairment in activities of
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daily living, in getting along with others for any length of time, and in concentration,
persistence, and pace. He opined that Plaintiff was not capable of handling funds in his
own best interest.
On March 1, 2012, Plaintiff reported to Dr. Malik that he did not like his group
therapy sessions, and felt that people stared at him and talked to him. Plaintiff reported
sleeping only four hours a day, a lack of patience, and that the television talked to him.
Dr. Malik doubled the dose of Depakote and increased the Latuda. (Tr. 279.) Plaintiff
missed his appointment scheduled for March 22, 2012, and next saw Dr. Malik on March
29, 2012, when Plaintiff’s wife accompanied him and reported that Plaintiff was
experiencing increased anxiety, paranoid symptoms, poor sleep, and that he believed the
television was talking to him.
On April 18, 2012, Kyle DeVore, Ph.D., a non-examining consulting psychologist,
completed a Psychiatric Review Technique Form. Dr. DeVore indicated that the record
substantiated a diagnosis of bipolar disorder and antisocial personality disorder. He
indicated in checkbox format that Plaintiff had no limitation in activities of daily living;
moderate limitation in maintaining social functioning; mild limitation in the area of
maintaining concentration, persistence, or pace; and no repeated episodes of
decompensation of extended duration. He found no evidence of “C” criteria of the
Commissioner’s regulations. (Tr. at 239-40.) As explained below, “C” criteria are met if
a mental disorder has been of at least two years duration with either (1) repeated episodes
of decompensation, (2) such marginal adjustment that even a minimal increase in mental
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demands or change in the environment would be predicted to cause the individual to
decompensate, or (3) one or more years inability to function outside a highly supportive
living arrangement, with an indication of continued need for such an arrangement. As
supporting evidence for his opinions, Dr. DeVore summarized Dr. Moore’s report
underlining a few parts, including the statement quoted above that Plaintiff reportedly said
he could find a job but did “not need to work a job.” (Tr. at 241.)
On May 24, 2012, Plaintiff reported to Dr. Malik that his medication was expensive,
and so he took half the amount prescribed. He also reported that he went to a concert.
Dr. Malik noted that Plaintiff still believed the TV gave him messages.
On September 10, 2012, Plaintiff was transported by the police to the emergency
room for suicidal ideation and chest pain. Upon examination, he was not admitted to the
hospital and released to police custody. Two days later he was brought back to the ER by
the police and was diagnosed with depression and again released.
On October 25, 2012, Dr. Malik reported medication noncompliance. On
November 22, 2012, Plaintiff sought inpatient psychiatric hospitalization, reporting
suicidal ideation with a plan to overdose. He also reported homicidal ideation towards his
ex-girlfriend, and command auditory hallucinations telling him to kill himself and to shoot
a police officer who had arrested him one month prior. At the time, Plaintiff was not
taking his mental health medications. Plaintiff was admitted to the hospital for four days.
His diagnosis at discharge was schizophrenia and bipolar disorder, and a GAF of 40.
Medications at discharge were Depakote, Latuda, and Risperdal (used for treatment of
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schizophrenia and bipolar disorder), and Plaintiff was referred for outpatient therapy. On
December 11, 2012, Dr. Malik again reported that Plaintiff had been noncompliant with
treatment recommendations. The last note in the record from Dr. Malik reported that
Plaintiff did not show up for his January 22, 2013 appointment.
Evidentiary Hearing of August 20, 2013
Plaintiff testified that he went through the day feeling like people were talking about
him, that he liked to isolate himself, and that he had arguments with others and outbursts
and mood swings. Plaintiff testified that he was separated from his wife and currently
living with his mother. He described panic attacks lasting an hour and a half, brought on by
being in public. Plaintiff stated that he had good days and bad days, with more bad days.
He had had outbursts with coworkers and supervisors, and lost a job for yelling at his
supervisor. He also reported a lifelong history of hearing voices on a daily basis
throughout the day, describing a female voice and a male voice. He also testified to
hearing voices on TV that seemed to know what he was about to do.
It was noted that Plaintiff had a service dog with him and he explained that the dog
was to calm his anxieties. He stated that due to his auditory hallucinations, he needed
about eight breaks throughout the day (besides a lunch break and two other regular breaks),
each for about seven or eight minutes, to get away from people.
The ALJ asked a vocational expert (“VE”) whether there were jobs in significant
numbers in the economy that could be performed by a person of Plaintiff’s age, education,
and vocational background (no past relevant work), with the following mental
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impairments: limited to simple, routine, repetitive work, without fast-paced production
standards; limited to only occasional superficial interaction with coworkers and
supervisors and not with the general public. The VE responded in the affirmative, and
testified that industrial cleaner and laundry laborer were examples of such jobs. The VE
testified that there were no jobs such a person could perform if he also required one
unscheduled break per hour of seven to eight minutes long each day, or even just three days
a week.
ALJ’s Decision of April 8, 2014
The ALJ found that Plaintiff had not performed substantial gainful activity since his
application date of November 23, 2011, and that Plaintiff had the severe impairment of
bipolar disorder with psychotic features. Applying the special criteria for assessing the
severity of mental impairments,3 the ALJ concluded that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled a

Under the Commissioner’s regulations, an affective disorder such as bipolar disorder
is deemed disabling if “A” criteria and “B” criteria are met, or if “C” criteria” are met. 20
C.F.R. 404, Pt. 404, Subpt. B, App. 1 (Appendix 1, Listing 12.04.) “A” criteria (medical
findings) are met if there is a medically documented persistence of a depressive, manic, or
bipolar syndrome. “B” criteria (functional limitations) are met if there is a marked
functional limitation in at least two of the following four categories: (1) daily living, (2)
social functioning, (3) concentration, persistence, or pace, and (4) repeated episodes of
decompensation, each of extended duration. “C” criteria are met if the disorder has been
of at least two years duration with either (1) repeated episodes of decompensation, (2) such
marginal adjustment that even a minimal increase in mental demands or change in the
environment would be predicted to cause the individual to decompensate, or (3) one or
more years inability to function outside a highly supportive living arrangement, with an
indication of continued need for such an arrangement.

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deemed-disabling impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. This
conclusion was based on the ALJ’s findings that Plaintiff had only moderate difficulties in
activities of daily living; social functioning; concentration, persistence, or pace; and no
episodes of decompensation that lasted for an extended duration. Thus, because
Plaintiff’s mental impairments did not cause at least two “marked” limitations in these
functional areas, or one “marked” limitation and repeated episodes of decompensation,
each of extended duration, the “B” criteria were not met. The ALJ also concluded that the
“C” criteria were not met.
The ALJ found that Plaintiff had the RFC to perform work at all exertional levels
with the following non-exertional limitations: limited to simple, routine, repetitive work
without fast-paced production standards; and limited to occasional, superficial interaction
with coworkers and supervisors, and none with the general public. In reaching this
determination, the ALJ stated that the evidence of record shows significant noncompliance
with treatment and medications. The ALJ also believed that the credibility of Plaintiff’s
allegations was diminished by his poor work record.
The ALJ noted that his RFC assessment was consistent with Dr. DeVore’s opinion,
which, according to the ALJ, was based on, “a comprehensive review of the evidence of
record, including subjective allegations, records from [Plaintiff’s] treating mental health
providers, the clinical observations and conclusions from [Dr. Moore’s] psychological
consultative examination, and [Plaintiff’s] activities of daily living.” (Tr. at 19.)
ALJ gave “great weight” to Dr. DeVore’s opinion, which, according to the ALJ, was
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consistent with Dr. Moore’s assessment of moderate impairment in activities of daily
living, social functioning, and concentration, persistence, and pace. Id. Relying on the
VE’s testimony, the ALJ found that there were jobs that existed in significant numbers in
the national economy that Plaintiff perform, and thus, that he was not disabled.
Arguments of the Parties
Plaintiff argues that the ALJ’s RFC assessment is not supported by substantial
evidence in the record. More specifically, Plaintiff argues that the ALJ failed to recognize
that Dr. DeVore could not have based his opinion on “a comprehensive review of the
evidence” because Dr. DeVore’s opinion of April 18, 2012, was prior to much of the
evidence of record through the date of the hearing decision almost two years later.
Plaintiff further argues that relying on a non-examining consultant to assess a claimant’s
RFC does not satisfy the ALJ’s duty to fully and fairly develop the record.
Plaintiff faults the ALJ for failing to evaluate any of Dr. Moore’s clinical findings,
such as inappropriate workplace-behavior, perhaps secondary to “impulse-control
difficulty.” Rather, the only part of Dr. Moore’s report that the ALJ cited, when
determining the weight to give Dr. DeVore’s opinion, was Dr. Moore’s conclusion that
Plaintiff had only moderate limitations in activities of daily living, social functioning, and
concentration, persistence and pace.
Plaintiff maintains that the ALJ also erred in failing to find that personality disorder
with antisocial traits was another severe impairment of Plaintiff’s, as diagnosed by Dr.
Moore, and confirmed by Dr. DeVore. Plaintiff posits that the symptoms of this
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impairment would have affected Plaintiff’s ability to obey work-rules, to be respectful of
others at work, and even to show up for work on a regular and continuing basis. Plaintiff
argues that the ALJ failed to properly consider the issue of failure to follow prescribed
treatment in that the ALJ failed to determine whether any prescribed treatment would have
restored Plaintiff’s ability to work, and failed to evaluate whether Plaintiff possessed the
insight to understand his need for treatment. Lastly, Plaintiff argues that the ALJ
improperly failed to consider third-party evidence, namely, the statements described above
of the SSA employee and Plaintiff’s wife. Plaintiff asks that the ALJ’s decision be
reversed and the case remanded for further evaluation.
In response, Defendant points out that the ALJ’s RFC finding was more restrictive
than Dr. DeVore’s opinion, and argues that Plaintiff has shown no error in the ALJ’s
analysis. According to Defendant, the ALJ properly considered Dr. Moore’s clinical
findings; properly analyzed the evidence of Plaintiff’s noncompliance with treatment,
within the context of the analysis of Plaintiff’s credibility; and properly considered the
whole record, which supports the ALJ’s decision.
DISCUSSION
Standard of Review and Statutory Framework
In reviewing the denial of Social Security disability benefits, a court “must review
the entire administrative record to determine whether the ALJ=s findings are supported by
substantial evidence on the record as a whole.” Johnson v. Astrue, 628 F.3d 991, 992 (8th
Cir. 2011). The court “‘may not reverse . . . merely because substantial evidence would
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support a contrary outcome. Substantial evidence is that which a reasonable mind might
accept as adequate to support a conclusion.” Id. (citations omitted).
To be entitled to benefits, a claimant must demonstrate an inability to engage in
substantial gainful activity which exists in the national economy, by reason of a medically
determinable impairment which has lasted or can be expected to last for not less than 12
months. 42 U.S.C. § 423(d)(1)(A). The Commissioner has promulgated regulations,
found at 20 C.F.R. § 404.1520, establishing a five-step sequential evaluation process to
determine disability. The Commissioner begins by deciding whether the claimant is
engaged in substantial gainful activity. If so, benefits are denied. If not, the
Commissioner decides whether the claimant has a severe impairment or combination of
impairments. A special technique is used to determine the severity of mental disorders.
This technique calls for rating the claimant’s degree of limitations in four areas of
functioning: activities of daily living; social functioning; concentration, persistence, or
pace; and episodes of decompensation. Id. § 404.1520a(c)(3).
If the impairment or combination of impairments is severe and meets the duration
requirement, the Commissioner determines at step three whether the claimant=s impairment
meets or is equal to one of the deemed-disabling impairments listed in Appendix I. If not,
the Commissioner asks at step four whether the claimant has the RFC to perform his past
relevant work. A disability claimant’s RFC is the most he can still do despite his
limitations. 20 C.F.R. § 404.1545(a)(1). In McCoy v. Schweiker, 683 F.2d 1138 (8th Cir.
1982) (en banc), abrogated on other grounds, 524 U.S. 266 (1998), the Eighth Circuit
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defined RFC as the ability to do the requisite work-related acts “day in and day out, in the
sometimes competitive and stressful conditions in which real people work in the real
world.” Id. at 1147.
If the claimant can perform his past work, the claimant is not disabled. If he cannot
perform his past relevant work, the burden of proof shifts at step five to the Commissioner
to demonstrate that the claimant retains the RFC to perform work that is available in the
national economy and that is consistent with the claimant=s vocational factors—age,
education, and work experience. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001).
Weight Accorded to the Opinion of Dr. DeVore in Determining Plaintiff’s RFC
The Eighth Circuit recently reaffirmed that “the opinions of nonexamining medical
sources are generally given less weight than those of examining sources.” Papesh v.
Colvin, 786 F.3d 1126, 1133 (8th Cir. 2015) (citing Wildman v. Astrue, 596 F.3d 959, 967
(8th Cir. 2010). That is especially true when, like here, the nonexamining consultant’s
opinion is given in checklist format. Id. (citing McCoy v. Astrue, 648 F.3d 605, 615 (8th
Cir. 2011). The Commissioner’s regulation provides that “because nonexamining sources
have no examining or treating relationship . . . , the weight we will give their opinions will
depend on the degree to which they provide supporting explanations for their opinions.”
20 C.F.R. § 404.1527(c)(3).
Here, the Court finds that Dr. DeVore’s explanation supporting his opinions is not
entitled to substantial weight. His only explanation is a brief summary of Dr. Moore’s
report, underlining certain portions. Neither Dr. DeVore nor the ALJ addressed Dr.
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Moore’s clinical findings and observations, such as Plaintiff’s inability to develop,
maintain, and sustain employment; Plaintiff’s poor coping skills and chronic difficulties
with hyperactivity; and Plaintiff’s inability to handle funds in his own best interest.
A more significant problem with the ALJ giving “great weight” to Dr. DeVore’s
report is that it was completed prior to serious mental health episodes that Plaintiff
experienced before the evidentiary hearing, and that were part of the medical record before
the ALJ. Under these circumstances, the Court cannot say, even under the deferential
standard accorded an ALJ’s decision, that the ALJ’s RFC determination, and resulting
decision that Plaintiff was not disabled, is supported by substantial evidence in the record
as a whole. The Court believes that the case must be remanded for further proceedings.
On remand, the ALJ should consider obtaining the opinion of a medical expert on
Plaintiff’s mental condition.
It is true, as Defendant argues, that the failure to follow a recommended course of
treatment weighs against a claimant’s credibility. See, e.g., Guilliams v. Barnhart, 393
F.3d 798, 802 (8th Cir. 2005). But a mentally ill person’s noncompliance with medication
can be the result of the mental impairment itself and therefore may not be willful or without
justifiable excuse. Pate–Fires v. Astrue, 564 F.3d 935, 945-46 (8th Cir. 2009) (remanding
case for consideration of whether the plaintiff’s noncompliance with prescribed treatment
was excusable due her bipolar disorder). On remand, the ALJ should consider whether
Plaintiff’s failure to follow prescribed treatment is a manifestation of his bipolar disorder.

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CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
REVERSED and the case is REMANDED for further proceedings.
A separate Judgment will accompany this Memorandum and Order.

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

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