Greiner v. Colvin
MEMORANDUM: Accordingly, for the reasons set forth above, the decision of the Commissioner of Social Security is reversed and remanded. The action is remanded to the Commissioner with directions for the ALJ to reevaluate the treating and consulting sources medical opinions and provide principled reasons for granting these opinions either substantial or little weight, comporting with the requirements of 20 C.F.R. § 404.1527(d)(2). An appropriate Judgment and Order is issued herewith.. Signed by Magistrate Judge David D. Noce on 01/19/17. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
RONALD EDWARD GREINER, JR.,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
No. 4:15 CV 1509 DDN
This action is before the court for judicial review of the final decision of the
defendant Commissioner of Social Security denying the application of plaintiff Ronald
Edward Greiner Jr. for disability insurance benefits under Title II of the Social Security
Act, 42 U.S.C. § 401- 434. The parties have consented to the exercise of plenary authority
by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For
the reasons set forth below, the final decision of the Commissioner is reversed and the
action is remanded for further proceedings.
Plaintiff was born in 1964 and was 49 years old at the time of his hearing. (Tr. 34,
73.) He filed his application on December 2916, 2011, alleging an August 30, 2011 onset
date, and alleging disability due to depression, bipolar disorder, anxiety, sleep disorder,
and an eating disorder. (Tr. 154-60, 185.) His application was denied initially, and he
requested a hearing before an administrative law judge (ALJ). (Tr. 73, 81-82.)
On June 17, 2014, following a hearing, the ALJ issued a decision, concluding that
plaintiff was not disabled under the Act. (Tr. 13-27.) The Appeals Council denied his
request for review. (Tr. 1-6.) Thus, the decision of the ALJ stands as the final decision of
II. MEDICAL AND OTHER HISTORY1
On April 3, 2012, plaintiff saw Timothy Leonberger, Ph.D., a clinical
neuropsychologist, for a psychological evaluation at the state agency’s request. (Tr. 27174.) Plaintiff reported he lived with his wife, three children, and 78-year old father. He
helped his father with medication, made his appointments at the VA, and drove him to
At home, plaintiff did laundry, drove, cleaned house, went grocery
shopping, and prepared simple meals. He and his wife occasionally went to movies or out
to dinner, and he sometimes got together with friends to play music. (Tr. 273.)
Plaintiff’s speech was normal, but droning, and his thinking was logical and
sequential. His attention and concentration were fair. He rarely made eye contact.
Plaintiff reported past suicidal ideation, but denied current suicidal ideation or intent. Dr.
Leonberger concluded that plaintiff was “apathetic, unmotivated, and chronically
depressed” and believed he had a chronic low level depression with subdued affect. (Tr.
273.) He noted that although plaintiff claimed to have panic attacks, he described them as
lasting all day long. He also noted that plaintiff complained about chronic pain, but
seemed to be able to do quite a bit, including helping his father and performing chores
around the house. Dr. Leonberger diagnosed plaintiff with recurrent major depressive
disorder, anxiety disorder, and personality disorder. (Tr. 273-74.)
Dr. Leonberger believed that plaintiff had mild to moderate limitations in activities
of daily living; moderate to marked limitations in social functioning; moderate to marked
limitations in concentration, persistence, and pace; and moderate to marked deterioration
or decompensation in work or work-like settings. He assigned a GAF score of 50,
The sole basis of this appeal is the ALJ’s evaluation of plaintiff’s mental condition.
Because plaintiff does not challenge the ALJ’s evaluation of his physical impairments, the
court will limit its discussion to the issues raised by plaintiff.
indicating “serious” symptoms. He opined that plaintiff was able to handle funds in his
own best interest. (Tr. 274.)
On April 12, 2016, Robert Cottone, Ph.D., a psychologist, completed a Mental
He opined that plaintiff had marked limitations in the ability to
understand and remember detailed instructions and to carry out detailed instructions. He
had moderate limitations in his ability to maintain attention and concentration for
extended periods; to work in coordination with or proximity to others without being
distracted by them; to complete a normal workday and workweek without interruptions
from psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; to interact appropriately with the general
public; to accept instructions and respond appropriately to criticism from supervisors; to
get along with coworkers or peers without distracting them or exhibiting behavioral
extremes; and to set realistic goals or to make plans independently of others. Dr. Cottone
opined that plaintiff was not significantly limited in all other areas. (Tr. 275-87.)
Plaintiff was treated by Eduardo Garcia, M.D., a psychiatrist, every three months
from February 3, 2011 to December 5, 2013. (Tr. 527-51.) On March 9, 2011, Dr. Garcia
noted plaintiff was having trouble at work and was depressed. (Tr. 549.) On October 19,
2011, Dr. Garcia noted he was not improving on a psychotherapeutic level. Plaintiff had
given up his job and applied for disability. (Tr. 547.) On January 17, 2012, his condition
was unchanged; his mood was depressed and he reported that he had a lot on his plate. He
stated he was very busy applying for disability and being a house dad. (Tr. 545-46.)
Plaintiff thought that Cymbalta, an antidepressant, caused increased shaking. Dr. Garcia
noted his depressed mood and worked with him on coping skills. (Tr. 545.) On April 19,
2012, he was “not real good.” (Tr. 541.) His mood was depressed and he had moderate
restlessness. He reported that he had taken Abilify, an anti-psychotic, for seven days
before stopping it.
Dr. Garcia reported that he was focused on disability.
decreased concentration and activity and expressed a desire to try Abilify again. (Tr. 54344.)
On July 3, 2012, plaintiff told Dr. Garcia that he had been going through a lot. (Tr.
541.) He did not like leaving the house. He was trying to get disability and spending
much of his savings. He had slight decrease in concentration. He had not taken his
Abilify. Dr. Garcia noted he was depressed and nervous. (Tr. 541-42.) On November 1,
2012, plaintiff was slightly depressed and felt stressed out by most things. (Tr. 539-40.)
On February 14, 2013, Dr. Garcia assigned him a GAF score of 55, indicating
“moderate” symptoms. (Tr. 538.) He had an anxious affect, with fair judgment, fair
insight, decreased concentration, and constricted affect. (Tr. 537.) In March 2013 Dr.
Garcia noted his condition was worsening. (Tr. 536.)
Plaintiff was hospitalized at St. Anthony’s Medical Center June 14-21, 2013, after
he ingested medication in a possible suicide attempt. A toxicology report revealed THC
(marijuana) and benzodiazepines. Plaintiff was anxious, agitated, and depressed. The
cause of his agitation was unclear; plaintiff apparently reported that he became upset
because his son attacked him and because his band of thirty years was breaking up. His
discharge diagnoses were recurrent severe major depression and arthritis. Plaintiff stated
that Cymbalta had been very effective. He was significantly improved at discharge. (Tr.
450, 462, 491-94).
By July 2013, Dr. Garcia thought his condition was improving, but he still
exhibited depressed mood. He had fair insight and fair judgment. Dr. Garcia noted
chronic depression. (Tr. 533-34.) Later that month Dr. Garcia changed his medication to
stabilize his mood. (Tr. 532.)
On July 22, 2013, Dr. Garcia completed a Depression and Anxiety Questionnaire.
Dr. Garcia diagnosed a depressive syndrome and checked boxes indicating plaintiff’s
depressive symptoms, including loss of interest in activities, sleep disturbance, decreased
energy, feelings of guilt or worthlessness, and difficulty concentrating or thinking. He
also indicated that plaintiff had no restrictions of activities of daily living; mild difficulties
in maintaining social function; marked deficiencies of concentration, persistence or pace
resulting in failure to complete tasks in a timely manner; and marked difficulties in
episodes of deterioration in work or work-like settings. (Tr. 430-32.)
In September 2013, he was stable and improving and he reported doing pretty well
that month. Dr. Garcia changed his medication due to cost. (Tr. 530.) By his next
appointment in December 2013 he was “not real well” with depressed mood and anxious
affect. (Tr. 527-29.)
Plaintiff was hospitalized at St. Anthony’s Medical Center February 15-17, 2014,
for a drug overdose. He had ingested 39 tablets of trazodone and several beers after his
wife had left him, taking their two daughters. He had been recently depressed but denied
any suicide attempt. He stated that that he was okay and wanted to go home; he did not
want to leave his elderly father at home alone. He reported that his regular psychiatrist
was Dr. Garcia. His insight and judgment were impaired. Ahmad Ardekani, M.D.,
diagnosed recurrent major depression, panic, anxiety, and chronic pain.
discharged and transferred to Hyland Behavioral Health for continued inpatient treatment.
In February 3, 2014 correspondence, Kevin Shuler, Ph.D., a psychologist, wrote the
following. He had seen plaintiff in over 25 sessions of psychotherapy during the period
from 1999 through 2010. Plaintiff had severe symptoms of anxiety and depression. He
appeared motivated to contain or control these symptoms and would attempt to comply
with recommendations and cognitive behavioral strategies in dealing with them.
Plaintiff’s anxiety and depressive symptoms, which included panic and suicidal episodes,
would recur and were extremely resistant to treatment. He believed that plaintiff was
motivated to keep his job and maintain his employability and made serious efforts to treat
his symptoms. He believed that plaintiff’s psychiatric condition was severe and disabling.
He diagnosed recurrent major depressive disorder without psychotic features and anxiety
disorder. He believed plaintiff was disabled and would be a fair candidate for disability.
On March 3, 2014, plaintiff appeared and testified to the following at a hearing
before an ALJ. (Tr. 34-72.) He had worked for twenty eight years as a custodian at two
He stopped working at the end of August 2011 because he could no longer
perform the job mentally and physically. He was depressed and had panic attacks. He
had difficulty with the regular responsibilities of the job, including walking stairs,
climbing ladders, etc. He was mentally a “wreck.” (Tr. 41.) He was easily overwhelmed.
He cried, had panic attacks at work, and found it difficult to drive. His panic attacks were
characterized by uncontrolled shaking. (Tr. 39-41.)
He saw Dr. Schuler for psychotherapy between 1999 and 2010 and stopped going
because he could not afford it and was too afraid to drive to the sessions. He felt worse
when he stopped treatment but he was afraid to go. (Tr. 41-42.)
He lives with his 80 year-old father in a house that he rents. His wife left him and
they are separated. They have three children, ages, 10, 12, and 20. His wife paid his last
rent payment. He needs to lie down at least 12 times per day for five to ten minutes at a
time. He takes a sleep aid at night. (Tr. 42-46.)
Pamela Tucker, a vocational expert (VE), was asked to assume a hypothetical
individual with the same age, education and vocational background as plaintiff. The
individual could lift and carry 10 pounds frequently and 20 pounds occasionally; sit for 40
minutes at a time for a total of four hours in an eight-hour day; stand for a total of 20
minutes at a time for a total of two hours in an eight hour day; walk for a maximum of 20
minutes at a time for a total of two hours in an eight-hour work day. The individual would
be limited to frequent reaching, handling, fingering, feeling, pushing, and pulling with the
right upper extremity; frequent reaching, feeling, pushing, and pulling with the left upper
extremity; and occasional operation of foot controls on both sides, bilaterally. He can
never climb, balance, stoop, kneel, crouch, or crawl; and he must avoid all hazards, such
as moving machinery, unprotected heights, and commercial driving. The VE testified that
plaintiff could not perform his past relevant work as a janitor because the work exceeded
his residual functional capacity but could perform other work that exists in the national
economy, including office helper, mail clerk, and laborer. (Tr. 46-48.)
The ALJ asked the VE to assume a second hypothetical with the same
characteristics as the first but with additional limitations. The individual would be limited
to work at a simple, routine, and repetitive pace without strict production quotas or fastpaced requirements in an environment with few changes in the routine and with only
occasional, superficial interaction with coworkers and supervisors and none with the
general public. The VE testified that those additional limitations would not reduce or
eliminate any of the jobs previously identified. Under a third hypothetical the ALJ asked
the VE to assume all of the same and that the individual would need to take as many as 12
unscheduled breaks per day lasting from five minutes to an hour. The VE testified that
hypothetical would eliminate any jobs in the competitive market. (Tr. 48.)
III. DECISION OF THE ALJ
On June 17, 2014, the ALJ issued a decision finding that plaintiff was not disabled
under the Act. (Tr. 13-27.) At Step One, the ALJ found that plaintiff had not engaged in
substantial gainful activity since his August 30, 2011 alleged onset date. At Step Two, the
ALJ found, among other things, that plaintiff had the severe impairments of dysfunction
of both knees following left arthroscopic surgery; disorder of the cervical spine after an
anterior cervical discectomy and fusion; affective disorder; anxiety disorder; personality
disorder; and opioid dependence disorder. At Step Three, the ALJ found plaintiff did not
have an impairment or combination of impairments that met or medically equaled an
impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 15.)
At Step Four, the ALJ found that plaintiff had the RFC to perform light work with
the following additional limitations. He is limited to sitting forty minutes at a time and
four hours in an eight hour workday; standing for twenty minutes at one time and for two
hours in an eight hour workday; walking for twenty minutes at one time and two hours in
an eight hour workday; frequent reaching, handling, fingering, feeling, pushing, and
pulling with the bilateral extremities; and occasional operation of foot controls bilaterally.
He must never climb, balance, stoop, kneel, crouch or crawl. He must avoid all exposure
to unprotected heights, moving machinery and operating a motor vehicle. He is limited to
simple, routine, repetitive work without strict production quotas or fast paced
requirements; few changes in routine; occasional, superficial interaction with coworkers
and supervisors; and no contact with the general public. (Tr. 19-20.)
Based on this RFC, the ALJ concluded that plaintiff was unable to perform his past
relevant work. (Tr. 20-24.) At Step Five, the ALJ found there were jobs that existed in
significant numbers in the national economy that plaintiff could perform. Therefore, the
ALJ found that plaintiff was not disabled within the meaning of the Act. (Tr. 24-26.)
In evaluating the opinion evidence in this case, the ALJ assigned both treating
sources little weight and did not assign any particular weight to the Agency’s examining
The ALJ discounted consultative examiner Dr. Leonberger’s opinion and
declined to assign it any particular weight. The ALJ stated that Dr. Leonberger’s opinion
was inconsistent with his own exam findings and comments, as well as with plaintiff’s
daily activities and work activity after his alleged onset date. The ALJ gave treating
psychiatrist Dr. Eduardo Garcia’s opinion “little” weight because it was inconsistent with
his exams and treatment notes, and with the opinion of Dr. Leonberger. The ALJ gave
“little” weight to the opinion of treating psychologist Kevin Schuler, Ph.D., on the basis
that Schuler had stopped treating plaintiff a year prior to his alleged onset date and failed
to specify what period of time his opinion related to. The ALJ also stated Dr. Schuler’s
opinion was unsupported by contemporaneous treatment notes. The ALJ also stated that
Dr. Schuler’s opinion that plaintiff was disabled was an issue reserved for the
Commissioner. (Tr. 24.)
V. GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision is to determine
whether the Commissioner’s findings comply with the relevant legal requirements and are
supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564 F.3d
935, 942 (8th Cir. 2009). “Substantial evidence is less than a preponderance, but is
enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Id. In determining whether the evidence is substantial, the court considers
evidence that both supports and detracts from the Commissioner's decision. Id. As long
as substantial evidence supports the decision, the court may not reverse it merely because
substantial evidence exists in the record that would support a contrary outcome or because
the court would have decided the case differently. See Krogmeier v. Barnhart, 294 F.3d
1019, 1022 (8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove he is unable to perform
any substantial gainful activity due to a medically determinable physical or mental
impairment that would either result in death or which has lasted or could be expected to
last for at least twelve continuous months.
42 U.S.C. §§ 423(a)(1)(D), (d)(1)(A),
1382c(a)(3)(A); Pate-Fires, 564 F.3d at 942. A five-step regulatory framework is used to
determine whether an individual is disabled. 20 C.F.R. § 404.1520(a)(4); see also Bowen
v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing five-step process); Pate-Fires, 564
F.3d at 942 (same).
Steps One through Three require the claimant to prove: (1) he is not currently
engaged in substantial gainful activity; (2) he suffers from a severe impairment; and (3)
his condition meets or equals a listed impairment. 20 C.F.R. § 404.1520(a)(4)(i)-(iii). If
the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to Steps Four and Five.
Step Four requires the
Commissioner to consider whether the claimant retains the RFC to perform past relevant
work (PRW). Id. § 404.1520(a)(4)(iv). The claimant bears the burden of demonstrating
he is no longer able to return to his PRW.
Pate-Fires, 564 F.3d at 942.
Commissioner determines the claimant cannot return to PRW, the burden shifts to the
Commissioner at Step Five to show the claimant retains the RFC to perform other work
that exists in significant numbers in the national economy.
Id.; 20 C.F.R. §
Plaintiff argues the ALJ erred in rejecting the opinions of both treating sources, Dr.
Eduardo Garcia, his psychiatrist, and Dr. Kevin Schuler, his psychotherapist.2 He argues
that both opinions were supported by the opinion of consultative examiner Dr.
Leonberger. He contends the ALJ failed to provide sufficient reasons for giving little
weight to the opinions of the treating providers, citing as support the factors set forth in
§ 404.1527 for analyzing the medical opinion evidence. Plaintiff also argues the ALJ
erred in failing to consider the consistency between the opinions themselves. This court
Treating Psychiatrist Eduardo Garcia, M.D.
Treating psychiatrist Dr. Eduardo Garcia believed that plaintiff had no restrictions
in activities of daily living; mild limitations in maintaining social functioning; marked
limitation in maintaining concentration, persistence or pace; and marked limitation in
episodes of decompensation. (Tr. 430-32.)
The opinion of a treating physician controls if it is well supported by medically
acceptable diagnostic techniques and is not inconsistent with the other substantial
evidence. Prosch v. Astrue, 201 F.3d 1010, 1012-13 (8th Cir. 2012) (mirroring language
of 20 C.F.R. §§ 404.1527 and 416.927). The treating source’s opinion is not inherently
entitled to controlling weight, however. Blackburn v. Colvin, 761 F.3d 853, 860 (8th Cir.
Although plaintiff applied for disability based upon both mental and physical
impairments, his appeal focuses exclusively on mental impairments. Therefore, plaintiff
does not contest the ALJ’s determinations that his physical impairments were not
disabling or that his claims were not entirely credible.
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2000). Even if the opinion is not entitled to controlling weight, it should not ordinarily be
disregarded and is entitled to substantial weight. Singh v. Apfel, 222 F.3d 448, 452 (8th
Cir. 2000). Unless the treating source’s opinion is supported by medically acceptable
clinical or diagnostic data, the opinion of a treating physician is entitled to “great weight.”
Smallwood v. Chater, 65 F.3d 87, 89 (8th Cir. 1995). 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 Eighth Circuit generally gives greater weight to the opinion of a specialist
about medical issues in the area of specialty. Brown v. Astrue, 611 F.3d 941, 953 (8th
Cir. 2010). In assessing a medical opinion, an ALJ may consider factors including the
length of the treatment relationship and the frequency of examination, the nature and
extent of treatment relationship, supportability with relevant medical evidence,
consistency between the opinion and the record as a whole, the physician’s status as a
specialist, and any other relevant factors brought to the attention of the ALJ. See 20
C.F.R. § 404.1527(c)(1)-(6); Owens v. Astrue, 551 F.3d 792, 800 (8th Cir. 2008) (holding
that when a treating physician’s opinion is not entitled to controlling weight, the ALJ must
consider several factors when assessing the weight to give it). Although an ALJ is not
required to discuss all the factors in determining what weight to give a physician’s
opinion, the ALJ must explain the weight given the opinion and give “good reasons” for
doing so. See 20 C.F.R. § 404.1527(c)(2).
The ALJ did not provide good reasons here. The ALJ gave little weight to Dr.
Garcia’s opinion because it was inconsistent with both his exams and treatment notes.
The ALJ noted Dr. Garcia’s assessment of marked limitation in maintaining
concentration, persistence or pace, and marked limitation in episodes of decompensation
was inconsistent with his own treatment notes which reflected that plaintiff was working
part-time, was a “house dad” and “busier now than when I worked.” (Tr. 23.) The ALJ
noted the mental status exam had consistently been unremarkable and repeatedly noted
intact attention and concentration, contrary to the medical opinion. The ALJ found Dr.
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Garcia’s opinion was also inconsistent with the medical opinion of state agency
psychology consultant, Dr. Leonberger, whose opinion he had also rejected. (Tr. 23.)
The ALJ, however, neglected to acknowledge that in December 2013 Dr. Garcia
noted that plaintiff’s condition was worsening. (Tr. 528.) Dr. Garcia also frequently
noted plaintiff’s decreased concentration. (Tr. 537-39, 541-43.) The ALJ seemingly
disregarded the record evidence described above, as well as the variable nature of mental
impairments, singling out a treatment note from January 17, 2012, wherein plaintiff
reported that he was “busier now than when I worked” while taking care of his elderly
father and daughters.
The note states: plaintiff “[has] a lot on his plate.” He was “very
busy with trying to get disability and being a house dad.” He was “busier now than when
he worked.” (Tr. 545.) He had increased shaking and depression. He had stopped taking
his medications about three weeks earlier. He still exhibited a depressed mood with “ok”
concentration at that time. The ALJ’s statement overlooked much of plaintiff’s statement
to Dr. Garcia.
Dr. Garcia also instructed plaintiff to not stop medications without
discussing it with him first. (Tr. 545.)
Based on all of the above, the ALJ’s use of Dr. Garcia’s opinion is not supported
by substantial evidence in the record.
Treating Psychologist Kevin Schuler, Ph.D.
The ALJ gave little weight to the opinion of treating psychologist Kevin Schuler,
Ph.D. The ALJ gave his opinion little weight because Dr. Schuler had stopped treating
plaintiff a year prior to his alleged onset date, failed to specify what period of time his
opinion related to, and his opinion was unsupported by contemporaneous treatment notes
and was inconsistent with relevant evidence during the alleged period of disability. The
ALJ also stated that Dr. Schuler’s opinion that plaintiff was disabled was an issue reserved
for the Commissioner. (Tr. 24.)
This court agrees that Dr. Schuler’s opinion that plaintiff was disabled is an issue
reserved for the Commissioner. See Choate v. Barnhart, 457 F.3d 865, 870 (8th Cir.
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2006). However, the regulations require that such opinions must never be ignored and
should be evaluated alongside all of the record evidence to determine the extent to which
it is supported. 20 C.F.R. § 404.1527; SSR 96-5p. Social Security Ruling 96-5p states
“because treating source evidence is important, if the evidence does not support a treating
source’s opinion on any issue reserved to the Commissioner and the adjudicator cannot
ascertain the basis of the opinion from the case record, the adjudicator must make “every
reasonable effort” to recontact the source for clarification of the reasons for the opinion.”
(Id.) The ALJ did not do so here.
In his February 3, 2014 correspondence, Dr. Schuler stated that his diagnostic
impression was recurrent major depressive affective disorder and anxiety disorder. He
assigned a GAF score of 45, indicating “serious” symptoms. He stated that plaintiff
suffered from severe symptoms of anxiety and depression and recurring panic and suicidal
episodes that were “extremely resistant to treatment.” (Tr. 448.) Although Dr. Schuler
stopped treating plaintiff in 2010, prior to his August 30, 2011 alleged onset date, his
opinion is arguably longitudinal evidence consistent with Dr. Garcia’s opinion.
The regulations require that consistency of opinions be considered in evaluating
opinion evidence. The more consistent an opinion is with the record as a whole, the more
weight is given to that opinion. See 20 C.F.R. § 404.1527(c)(4). In this case, however,
there are other medical opinions and Dr. Schuler’s opinion is consistent with them. The
record evidence indicated two suicide attempts after plaintiff’s alleged onset date and the
consistent opinions of plaintiff’s treating specialist and the state agency’s examining
specialist that plaintiff would suffer episodes of deterioration or decompensation in work
or a work- like setting. However, the ALJ only discussed these suicidal episodes at Step 2
in finding that plaintiff suffered from polysubstance abuse disorder. (Tr. 17.)
Based on all of the above, the ALJ’s utilization of Dr. Schuler's opinion was not
supported by substantial evidence in the record.
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Consultative Neuropsychologist F. Timothy Leonberger, Ph.D.
Plaintiff next argues the ALJ erred in weighing the opinion of consultative neuropsychologist F. Timothy Leonberger, Ph.D.. He contends the ALJ failed to consider Dr.
Leonberger’s expertise in psychology and status as an expert in disability evaluation and
Social Security disability. He contends the ALJ formed his own opinion of the medical
evidence instead of relying on the interpretation of a treating source. This court agrees.
The ALJ stated that he considered Dr. Leonberger’s opinion. The ALJ found Dr.
Leonberger’s functional assessment “sharply inconsistent” with his own clinical
examination. (Tr. 23.) The ALJ noted that while Dr. Leonberger found that plaintiff had
mild to marked limitations in social functioning and activities of daily living, Dr.
Leonberger noted plaintiff seemed to be able to do quite a lot, despite his complaints. (Tr.
274.) The ALJ noted that plaintiff’s performance on the simple cognitive exam, his
logical thought process, and fair attention and concentration, all suggested that plaintiff
had a greater capacity than found by Dr. Leonberger. (Tr. 23, 273-74.)
The ALJ did not state the weight he gave Dr. Leonberger’s opinion. This alone,
however, is not error. An ALJ is not required to state the amount of weight given, but
need only clarify the reasons the opinion was discounted. Cf. Grabel v. Colvin, 770 F.3d
1196, 1201-02 (8th Cir. 2014); see also 20 C.F.R. § 404.1527 (listing factors to be
The opinion of a consulting medical expert may constitute substantial evidence to
refute a treating expert's opinion. And when the one time consultant disagrees with the
treating expert, the ALJ has the right to resolve the conflict between the opinions. Wagner
v. Astrue, 499 F.3d 842, 849 (8th Cir. 2007). It is the ALJ’s function generally to resolve
conflicts among the opinions of various treating and examining experts. Renstrom v.
Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012).
Here, however, Dr. Leonberger confirmed the opinions of plaintiff’s treating
mental health sources. See 20 C.F.R. § 404.1527(c)(4) (requiring consideration of the
consistency of the opinions of record when weighing them). The ALJ asserted that the
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limitations in Dr. Leonberger’s opinion were inconsistent with his own exam findings and
comments. (Tr. 23.) Contrary to the ALJ’s assertion, Dr. Leonberger’s exam findings are
consistent with his observations that plaintiff was apathetic, unmotivated and chronically
depressed. (Tr. 273.) Dr. Leonberger diagnosed plaintiff with major depressive disorder,
anxiety disorder, personality disorder, and assigned a GAF score of 50. He believed that
plaintiff was incapable of handling his own money. Dr. Leonberger noted that despite
getting together with friends to play music, plaintiff did not socialize very often, and
plaintiff’s wife stated that plaintiff’s anxiety put a damper on their social life.
Leonberger also observed that plaintiff spoke in a droning tone with subdued affect and
rarely made eye contact. (Tr. 273.) While Dr. Leonberger noted plaintiff performed
adequately on measures of attention and concentration, he stated his “persistence and pace
appears to be quite poor and is affected by his psychiatric state and subjective experience
of pain.” (Tr. 274.) The ALJ noted plaintiff was able to perform simple calculations
although Dr. Leonberger noted that “he did so very slowly.” (Tr. 23, 273.)
The ALJ also concluded that Dr. Leonberger’s opinion was inconsistent with
plaintiff’s daily activities. (Tr. 23.) However, sporadic activities do not support an ability
to work on a full-time, remunerative basis. See SSR 96-8p (the Agency’s full-time work
rule; analysis for determining a claimant’s residual functional capacity); Forehand v.
Barnhart, 364 F.3d 984, 988 (8th Cir. 2004) (claimant’s ability to engage in activities such
as cooking, cleaning, and hobbies, does not constitute substantial evidence of the ability to
engage in substantial gainful activity). Finally, the ALJ concluded that Dr. Leonberger’s
opinion was inconsistent with plaintiff’s work activity after his alleged onset date.
However, this conclusion is entirely speculative since--as the ALJ acknowledged-plaintiff’s part-time work at a church was of an undetermined amount and did not meet the
regulatory threshold of substantial gainful activity. (Tr. 15.)
Based on all of the above, the ALJ’s utilization of Dr. Leonberger’s opinion was
not supported by substantial evidence in the record.
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The opinions of Drs. Leonberger, Schuler, and Garcia are consistent with the
underlying evidence including multiple suicide attempts. Cf. Cline v. Colvin, 771 F.3d
1098, 1103 (8th Cir. 2014) (it is the function of the ALJ to weigh conflicting evidence and
to resolve disagreements among physicians.) This court concludes the ALJ failed to
provide sufficient reasons for giving little weight to the uncontradicted opinions of
treating sources and to reject Dr. Leonberger’s functional limitations.
For all of the above reasons, this court concludes the ALJ's decision to reject the
opinions of plaintiff’s treating and examining sources was not supported by substantial
evidence on the record as a whole.
Accordingly, for the reasons set forth above, the decision of the Commissioner of
Social Security is reversed and remanded. The action is remanded to the Commissioner
with directions for the ALJ to reevaluate the treating and consulting sources medical
opinions and provide principled reasons for granting these opinions either substantial or
little weight, comporting with the requirements of 20 C.F.R. § 404.1527(d)(2).
appropriate Judgment and Order is issued herewith.
S/ David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on January 19, 2017.
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