Daughety v. Colvin
MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that this action is REVERSED AND REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration in accordance with this Memorandum and Order. A separate Judgment will accompany this Order.. Signed by Magistrate Judge Noelle C. Collins on 9/13/2017. (NEB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
KENNETH A. DAUGHETY,
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security
Case No. 4:16-cv-00841-NCC
MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision
of the Commissioner denying the application of Kenneth A. Daughety (“Plaintiff”) for disability
insurance benefits (“DIB”) under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§
401, et seq., and Supplemental Security Income (“SSI”) under Title XVI of the Social Security
Act, 42 U.S.C. §§ 1381, et seq. Plaintiff has filed a brief in support of the Complaint (Doc. 17)
and Defendant has filed a brief in support of the Answer (Doc. 21). The parties have consented
to the jurisdiction of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C.
§ 636(c) (Doc. 8).
I. PROCEDURAL HISTORY
Plaintiff filed his applications for DIB and SSI on May 6, 2013 (Tr. 178-192). Plaintiff
was initially denied on August 23, 2013, and he filed a Request for Hearing before an
Administrative Law Judge (“ALJ”) (Tr. 119-123, 124-128). After a hearing, by decision dated
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be
taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
April 16, 2015, the ALJ found Plaintiff not disabled (Tr. 7-27). On May 2, 2016, the Appeals
Council issued a decision denying Plaintiff’s request for review (Tr. 1-4). As such, the ALJ’s
decision stands as the final decision of the Commissioner.
II. DECISION OF THE ALJ
The ALJ determined that Plaintiff has not engaged in substantial gainful activity since
November 18, 2011, the alleged onset date (Tr. 12). The ALJ found that the Plaintiff has the
following medically determinable impairments: hypertension, Barrett’s esophagus, diabetes
mellitus, chronic obstructive pulmonary disease ("COPD"), chronic liver disease and cirrhosis,
affective disorder, personality disorder, attention deficit hyperactivity disorder (“ADHD”), and
substance addiction disorder, but that no impairment or combination of impairments significantly
limit (or is expected to significantly limit) Plaintiff’s ability to perform basic work-related
activities for 12 consecutive months (Id.). Thus, the ALJ found that Plaintiff does not have a
severe impairment or combination of impairments and has therefore not been under a disability
from November 18, 2011 through the date of the decision, April 16, 2015 (Tr. 12, 23).
III. LEGAL STANDARD
Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “If a claimant fails
to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is
determined to be not disabled.” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits.
20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20
C.F.R. §§ 416.920(c), 404.1520(c). The Social Security Act defines “severe impairment” as
“any impairment or combination of impairments which significantly limits [claimant’s] physical
or mental ability to do basic work activities. . . .” Id. “‘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 [his or] her ability to work.’” Page v. Astrue, 484
F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir.
2001), citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment which meets or
equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d).
If the claimant has one of, or the medical equivalent of, these impairments, then the claimant is
per se disabled without consideration of the claimant’s age, education, or work history. Id.
Fourth, the impairment must prevent the claimant from doing past relevant work. 20
C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at this fourth step to
establish his or her RFC. Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step
four of this analysis, the claimant has the burden of showing that she is disabled.”). The ALJ
will review a claimant’s RFC and the physical and mental demands of the work the claimant has
done in the past. 20 C.F.R. § 404.1520(f).
Fifth, the severe impairment must prevent the claimant from doing any other work. 20
C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential analysis, the
Commissioner has the burden of production to show evidence of other jobs in the national
economy that can be performed by a person with the claimant’s RFC. Steed, 524 F.3d at 874
n.3. If the claimant meets these standards, the ALJ will find the claimant to be disabled. “The
ultimate burden of persuasion to prove disability, however, remains with the claimant.” Young v.
Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). See also Harris v. Barnhart, 356 F.3d 926, 931
n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377
F.3d 801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to demonstrate
RFC remains on the claimant, even when the burden of production shifts to the Commissioner at
step five.”). Even if a court finds that there is a preponderance of the evidence against the ALJ’s
decision, the decision must be affirmed if it is supported by substantial evidence. Clark v.
Heckler, 733 F.2d 65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but
is enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). See also Cox v.
Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
It is not the job of the district court to re-weigh the evidence or review the factual record
de novo. Cox, 495 F.3d at 617. Instead, the district court must simply determine whether the
quantity and quality of evidence is enough so that a reasonable mind might find it adequate to
support the ALJ’s conclusion. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of
the ALJ, who is the fact-finder. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004).
Thus, an administrative decision which is supported by substantial evidence is not subject to
reversal merely because substantial evidence may also support an opposite conclusion or because
the reviewing court would have decided differently. Krogmeier, 294 F.3d at 1022.
To determine whether the Commissioner’s final decision is supported by substantial
evidence, the court is required to review the administrative record as a whole and to consider:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s physical activity
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon proper hypothetical questions which
fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
In his appeal of the Commissioner’s decision, Plaintiff asserts that the ALJ failed to
properly consider Step 2 of the sequential evaluation. Specifically, Plaintiff argues that the ALJ
erred in determining that Plaintiff’s diabetes mellitus with neuropathy, depression, and antisocial
personality disorder (ASPD) were not severe impairments. Because the ALJ erred in not finding
that Plaintiff’s depression is a severe impairment, the Court will address that issue alone.
At Step 2, the Commissioner must determine whether a claimant has a severe
impairment. “An impairment or combination of impairments is not severe if it does not
significantly limit your physical or mental ability to do basic work activities.” 20 C.F.R.
§§ 404.1521, 416.921. While a claimant has the burden of showing a severe impairment that
severely limits his physical or mental ability to perform basic work activities, the burden “is not
great” and “[t]he 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 [his] ability to work.” Caviness, 250 F.3d at 605. Basic work activities are those
“abilities and aptitudes necessary to do most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b).
The ALJ erred in not finding that Plaintiff’s depression is a severe impairment. First,
Plaintiff listed depression as an impairment on his application (Tr. 210). See cf. Dunahoo v.
Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001) (observing that a failure to allege depression in an
application for benefits is significant, even if the evidence of depression was later developed).
Indeed, the record is replete with Plaintiff’s reports of depression. For example, on September
11, 2013 and then again on June 26, 2014, Plaintiff reported a long history of depression (Tr.
401, 419). Plaintiff also testified at his hearing that despite his ongoing treatment, as detailed
below, he was still depressed, slept no more than two hours at a time, had difficulty focusing on
things, and had trouble getting along with others (Tr. 71).
Second, while the ALJ spends a considerable amount of time in her decision addressing
Plaintiff’s noncompliance with and failure to seek mental health treatment, the record reflects
that Plaintiff may not have had the requisite insight or memory to understand the need to comply
with treatment recommendations. Cf. Pate-Fires v. Astrue, 564 F.3d 935, 945-47 (8th Cir.
2009). For example, Plaintiff reports that his depression “has killed [his] motivation to do much
and affects my memory, concentration, focus, and ability to get along with others” (Tr. 222).
The record supports this self-assessment; Dennis A. Velez, M.D., a consultative examiner, noted
that Plaintiff has difficulties with memory as did Erin E. Fulkerson, Psy.D., a psychology
resident who provided Plaintiff counseling as his therapist (Tr. 359, 457). Dr. Fulkerson
contributed Plaintiff’s non-compliance to his “lack of concern for self” (Tr. 459).
While Plaintiff did not initially seek treatment from a traditional mental health provider,
the record reflects that Plaintiff was, for a time, provided mental health care from the Internal
Medicine Clinic at Barnes Jewish Hospital (See, e.g., Tr. 253, 260, 265). Cf. Shannon v. Chater,
54 F.3d 484, 486 (8th Cir. 1995) (the failure to seek treatment may be considered as inconsistent
with a finding of disability). Despite his compliance with psychotropic medication as prescribed,
Plaintiff reported that “he does feel worthless at times” and that “his mood is down, his life is
going nowhere” (Tr. 285, 291). The staff at the Internal Medicine Clinic referred Plaintiff to the
Collaborative Care Clinic for a psychiatric consultation for further evaluation of his depression
(Tr. 295). Accordingly, on February 18, 2013, Plaintiff was examined by Bonnie Applewhite,
M.D., a psychiatrist (“Dr. Applewhite”) (Id.). In her treatment notes, Dr. Applewhite diagnosed
Plaintiff with depression and antisocial personality disorder, finding Plaintiff at “a chronically
high risk of self-harm” (Tr. 297-96). Plaintiff appears to have then been re-referred to the
Internal Medicine Clinic for ongoing psychiatric care (See, e.g., Tr. 299).
Regardless, the record reflects that Plaintiff began counseling in November of 2014 (Tr.
378, 458) and had been attending his counseling sessions regularly at the time of his hearing (Tr.
64). Cf. Lawson v. Colvin, No. 4:13-CV-1361 SNLJ, 2014 WL 4269050, at *15 (E.D. Mo. Aug.
28, 2014) (finding the plaintiff not disabled when “[t]he record shows she neither sought nor
received psychiatric treatment during the time of her alleged disability.”). At the hearing,
Plaintiff also noted that he had begun seeing a psychiatrist who had taken over prescribing his
psychotropic medication (Tr. 64). Indeed, Plaintiff began treatment at Crider Health Center with
Adolph Herath, M.D., in February of 2015 at the referral of Dr. Fulkerson (Tr. 470). Cf.
Matthews v. Bowen, 879 F.2d 422, 424-25 (8th Cir. 1989) (prescription of antidepressants alone
does not demonstrate that the claimant is disabled). The Court also notes that the ALJ notes six
past suicide attempts, but indicates that none had serious medical consequences (Tr. 16)
(emphasis added). Dr. Velez also stated that Plaintiff “does have a history of attempted suicide
in 2007 from cocaine use and abuse” (Tr. 359). Cf. Harrison v. Colvin, No. 2:14 CV 43 DDN,
2015 WL 5560256, at *5 (E.D. Mo. Sept. 21, 2015) (discounting Plaintiff’s past history of two
suicide attempts when they occurred approximately 20 years prior to the alleged onset date).
Third, the medical opinion evidence indicates that Plaintiff’s depression is perhaps more
limiting than as suggested by the ALJ. Specifically, in a letter dated December 19, 2013, Dr.
Fulkerson and Jill Swartwout, Psy.D., a licensed psychologist and Dr. Fulkerson’s supervisor,
diagnosed Plaintiff with several mental health disorders including “Persistent Depressive
disorder, with anxious distress, early onset, with persistent major depressive episode, moderatesevere” (Tr. 458). They further indicate that Plaintiff has “struggled with thoughts of suicide in
the context of his depression” and that Plaintiff’s “concentration and ability to focus is
inconsistent, due to his tendency to ‘tune out’ when he experiences negative emotions.
[Plaintiff] also presents with memory difficulties. … [H]e reports levels of anger that would
likely preclude him from interacting safely with the public” (Tr. 458-59). Although the ALJ
assigned the opinion “some weight,” in doing so the ALJ notes that Dr. Fulkerson had only been
treating claimant for a short time and treatment notes were not provided (Tr. 21).
Fourth, Plaintiff’s depression would significantly limit his ability to work. Plaintiff
indicates in a Function Report-Adult dated May 30, 2013 that he has issues with sleeping, stating
that he usually does not sleep for more than four hours at a time because he has “a hard time
making [his] mind shut down” and has to take at several naps per day for approximately 60
minutes at a time (Tr. 217-18). He also reports that he has trouble getting along with people and
tries to avoid people and crowds (Tr. 217). Although the ALJ found Plaintiff’s reports to be
noncredible, largely due to his noncompliance as addressed above, even if the Court were to
discount these subjective statements, the record supports significant limitations. For example,
Dr. Fulkerson indicates that Plaintiff’s symptoms impact Plaintiff “by reducing his ability to
attend to his needs on a consistent basis, such as grooming, eating an appropriate diet, cleaning
his home, planning and organizing, and participating in social events” (Tr. 458). Dr. Fulkerson
continued, “he struggles to meet his needs with regard to engaging in social interacting in his
community, having adequate concentration/focus, maintaining a clean and healthy home, [and]
getting adequate sleep. . . (Id.).” Further, although he found Plaintiff’s depression a non-severe
impairment, even Stephen Sher, Ph.D., a state agency non-examining source, in his August 22,
2013 review of the record, limited Plaintiff to mild limitations in the following areas:
maintaining social functioning and maintaining concentration, persistence or pace (Tr. 111-12).
Finally, in a prior decision dated November 17, 2011, the Commissioner found Plaintiff
to have the severe impairment of depression (Tr. 84). At that time, the only record relating to
Plaintiff’s depression appeared to be a rather unremarkable consultative exam (See Tr. 86).
Accordingly, the Court finds that remand is required because the ALJ’s determination
that Plaintiff’s depression was not a severe impairment is not supported by substantial evidence.
For the foregoing reasons, the Court finds the ALJ’s decision was not based on
substantial evidence in the record as a whole and should be reversed and remanded. On remand,
the ALJ is directed to reconsider Plaintiff’s severe impairments at step two; further develop the
medical record if necessary; and then proceed through the sequential evaluation process before
issuing a new decision.
IT IS HEREBY ORDERED that this action is REVERSED AND REMANDED to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration in
accordance with this Memorandum and Order.
A separate Judgment will accompany this Order.
Dated this 13th day of September, 2017.
/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE
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