Lucas v. Colvin

Filing 25

MEMORANDUM AND ORDER: IT IS HEARBY ORDERED that, the decision of the Commissioner is REVERSED, and this cause is REMANDED to the Commissioner for further proceedings consistent with this Memorandum and Order. A separate Judgment shall be entered this day.. Signed by Magistrate Judge John M. Bodenhausen on 7/18/17. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILLIAM LUCAS, III,
Plaintiff,
v.
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 4:16 CV 970 JMB

MEMORANDUM AND ORDER
This action is before the Court, pursuant to the Social Security Act (“the Act”), 42 U.S.C.
§§ 401, et seq. The Act authorizes judicial review of the final decision of the Commissioner of
Social Security (the “Commissioner”) denying Plaintiff William Lucas’s application for
Disability Insurance Benefits. All matters are pending before the undersigned United States
Magistrate Judge with consent of the parties, pursuant to 28 U.S.C. § 636(c). The matter is fully
briefed, and for the reasons discussed below, the Commissioner’s decision will be reversed and
remanded.
BACKGROUND & SUMMARY OF DECISION
In December 2012, Plaintiff filed an application for Disability Insurance Benefits
(“DIB”), alleging that he became disabled beginning December 7, 2012. (Tr. 13) 2 The
Commissioner initially denied Plaintiff’s claims on August 8, 2013. (Id) Thereafter, Plaintiff

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security, and pursuant to
Fed. R. Civ. P. 25(d) Civil Procedure is substituted 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).
2

“Tr.” refers to the administrative record filed on behalf of the Commissioner.

requested a hearing before an Administrative Law Judge (“ALJ”), which was held on December
2, 2014. (Tr. at 13, 51) Plaintiff and Delores Gonzalez, an impartial Vocational Expert (“VE”),
testified at the hearing. On March 26, 2015, the ALJ issued a decision concluding that Plaintiff
was not disabled under the Act. (Tr. 13-21) The Social Security Administration Appeals
Council denied Plaintiff’s request for review, leaving the ALJ’s decision as the final decision of
the Commissioner in this matter. (Tr. 1-4) Plaintiff filed the instant action on June 24, 2016.
(ECF No. 1) Plaintiff has exhausted his administrative remedies and the matter is properly
before this Court. Plaintiff has been represented throughout all relevant proceedings.
Although the ultimate issue before the Court is whether substantial evidence supports the
Commissioner’s decision, Plaintiff presents several specific and related issues for this Court’s
review: (1) whether, the ALJ erred in according only limited weight to the opinion of Plaintiff’s
treating psychiatrist, Dr. Kulsoom Junaid, M.D.; (2) whether the evidence supports the ALJ’s
conclusion that Plaintiff’s symptoms are generally well controlled; (3) whether the ALJ’s
Residual Functional Capacity assessment adequately accounts for Plaintiff’s obsessive
compulsive disorder symptoms; and (4) whether the ALJ erred in her consideration of the
opinion of State Agency psychologist Dr. Robert Cottone, Ph.D.
The ALJ’s decision in this matter is generally thorough, thoughtful, organized and wellreasoned. On the basis of the existing record, however, the undersigned cannot say that the
ALJ’s decision accurately characterized Plaintiff’s history and treatment for obsessive
compulsive syndrome symptoms. This error does not reflect a harmless error. Hence, the matter
must be remanded.

2

ADMINISTRATIVE RECORD 3
Plaintiff is currently 37 years old. In his Disability Report – Adult form, Plaintiff listed
the following mental conditions that impaired his ability to work: (1) bi-polar disorder, (2)
depression; (3) anxiety; and (4) obsessive compulsive disorder (“OCD”). (Tr. 190-96) In a third
party Function Report – Adult, dated June 9, 2013, Plaintiff’s mother listed numerous limitations
regarding his ability to work. (Tr. 212-19) Plaintiff’s mother indicated that his impairments
affected the following abilities: lifting, completing tasks, concentration, and getting along with
others. (Tr. 217) Prior to his alleged disability onset, Plaintiff worked for his father’s asphalt
business.
All of Plaintiff’s relevant impairments are psychological /psychiatric in nature. The
record before the Court indicates that Plaintiff received regular and consistent treatment for his
symptoms from Dr. Kulsoom Junaid, M.D., from 2007 up to and beyond the date of the ALJ’s
decision in this matter. (Tr. 25-50, 241-302) 4 Dr. Junaid’s treatment notes show consistent
diagnoses of bipolar disorder and OCD, along with regular references to anxiety and depressionrelated symptoms. The treatment notes indicate that Plaintiff’s OCD symptoms included fear of
contamination (and repetitive handwashing) and checking rituals. Dr. Junaid’s treatment notes
show that he treated and attempted to treat Plaintiff’s various symptoms with a variety of
techniques and medications. Dr. Junaid made periodic adjustments and changes to Plaintiff’s
medications. Dr. Junaid’s notes consistently indicate that Plaintiff was cooperative, logical,

3

The Court has reviewed and considered the entire administrative record. Because this
case is being remanded, that record is only briefly summarized herein. Specific aspects of the
record are discussed in greater detail in the Court’s analysis of the issues presented for review.
4

The record indicates that, after he lost his insurance coverage, Plaintiff paid out-ofpocket for treatment with Dr. Junaid. Additionally, Plaintiff sought alternative, lower cost / free
psychiatric services from Grace Hill Health Centers. (Tr. 316) It appears, however, that Plaintiff
did not secure such services from Grace Hill.

3

appropriately dressed, did not suffer from psychosis, with his memory intact, but he also
continued to suffer from a variety of psychological problems. Likewise, Dr. Junaid’s notes
indicate that, although Plaintiff sometimes suffered side effects of his medications (e.g.,
drowsiness), he generally tolerated his medications well. Importantly, however, beginning no
later than January 2013, and continuing until at least March 2015, Dr. Junaid’s notes often
indicated that Plaintiff’s OCD symptoms were treatment resistant, medication resistant, and/or
difficult to control. (Tr. 252, 253, 295, 297, 301, 345)
The record also includes two relevant opinions. The first opinion is from Dr. Robert
Cottone, Ph.D., which was part of a Disability Determination Explanation, dated August 8, 2013.
(Tr. 91-99) Dr. Cottone did not examine Plaintiff but reviewed the medical records of Dr. Junaid
available as of early June 2013. Dr. Cottone concluded that Plaintiff suffered from both affective
and anxiety-related disorders, including OCD. Dr. Cottone completed a mental residual
functional capacity assessment, with specific findings relative to Plaintiff’s understanding and
memory limitations, concentration and persistence limitations, social interaction limitations, and
adaptation limitations. Based on his findings, Dr. Cottone concluded that Plaintiff’s illness
“would be contained more adequately if he worked with decrease[d] interpersonal interaction
and less complex work activity.” (Tr. 97) Dr. Cottone opined that Plaintiff should avoid work
that involves intense or excessive interpersonal interactions, customer complaints, close
proximity to co-workers, and public contact. (Id.) Dr. Cottone further opined that Plaintiff could
understand, remember, and carry out simple tasks, make simple work-related adjustments, relate
adequately to his co-workers and supervisors, and adjust to ordinary changes in his work routine
or setting. (Id.)
The second relevant opinion was submitted in a Mental Residual Functional Capacity
Questionnaire prepared by Dr. Junaid, and dated November 20, 2014. (Tr. 340-44) Dr. Junaid

4

represented that he had been treating Plaintiff since 2007. Dr. Junaid’s noted that Plaintiff
suffered from bipolar disorder and OCD. Dr. Junaid reported that Plaintiff’s response to
treatment was only partial because Plaintiff’s symptoms were treatment resistant. Regarding
Plaintiff’s prognosis, Dr. Junaid again noted that Plaintiff suffered from treatment resistant
symptoms, and had symptoms including anxiety, fatigue, obsessive intensive thoughts, social
anxiety, checking rituals, and a preoccupation with contamination. Dr. Junaid found Plaintiff
either seriously limited (but not precluded) or unable to meet competitive standards in each of
fifteen listed mental abilities and aptitudes needed to perform unskilled work. Regarding these
limitations, Dr. Junaid noted that Plaintiff’s situation is complicated by the fact that he suffers
from “severe & treatment resistant obsessive compulsive disorder.” (Tr. 342) Finally, in
commenting on why Plaintiff would have difficulty working on a full-time and sustained basis,
Dr. Junaid again explained that Plaintiff’s symptoms are treatment resistant. Dr. Junaid further
explained that Plaintiff had only a partial response to medication, had tried several different
combinations of medications, and still only achieved a partial response or developed side-effects.
On December 2, 2014, the ALJ conducted a hearing on Plaintiff’s applications. (Tr.5190) Plaintiff appeared in person, with counsel. The ALJ also received testimony from
independent vocational expert (“VE”) Dolores Gonzalez.
THE ALJ’S DECISION
In assessing whether Plaintiff was disabled, the ALJ followed the required five-step
process laid out in the Commissioner’s regulations. At step one, the ALJ found that Plaintiff had
not engaged in substantial gainful activity since December 7, 2012, his alleged onset date. (Tr.
15) At step two, the ALJ found that Plaintiff had severe impairments of obsessive compulsive
disorder and bipolar disorder. (Id.) The ALJ found Plaintiff’s history of back and neck pain to
be nonsevere.

5

At step three, the ALJ found that none of Plaintiff’s impairments—whether considered
alone or in combination—met or equaled a listed impairment under either Listing 12.04 or
Listing 12.06. (Tr. 15-17) The ALJ concluded that Plaintiff had mild restrictions in his activities
of daily living, moderate difficulties in his social functioning, and mild difficulties with
concentration, persistence or pace. The ALJ found Plaintiff had no episodes of decompensation
of an extended duration. (Tr. 16)
Prior to completing step four, the ALJ concluded that Plaintiff retained the residual
functional capacity (“RFC”) to –
perform a full range of work at all exertional levels but with the following
nonexertional limitations: he is able to perform routine, repetitive tasks. The
claimant is limited to low stress jobs (defined as occasional decision-making and
occasional changes in the work setting). He is able to have occasional interaction
with the public, co-workers, and supervisors.
(Tr. 17)
In making the relevant disability determinations, the ALJ also made an adverse finding
regarding Plaintiff’s credibility. The ALJ found that Plaintiff’s statements concerning the
intensity, persistence and limiting effects of his symptoms were not entirely credible. (Tr. 17)
The ALJ also provided a summary of the medical evidence and opinion from Dr. Junaid, Dr.
Cottone’s opinion, and the third party statement of Plaintiff’s mother.
At steps four and five, and based on the testimony of the VE, the ALJ concluded that,
even though Plaintiff could not return to his past relevant work, 5 there existed other jobs that
Plaintiff could still perform with his RFC. Those jobs included machine maker, routing clerk,
and silver wrapper. (Tr. 20) Accordingly, the ALJ concluded that Plaintiff was not disabled
within the meaning of the Social Security. (Tr. 21)

5

Although Plaintiff has a college degree, Plaintiff’s past work was entirely in
labor/construction; he worked in various aspects of his father’s asphalt business.

6

ANALYSIS AND DISCUSSION
I.

Summary of Issues Presented for Review
Plaintiff contends that the ALJ made several specific errors. First, Plaintiff argues, in

substance, that the ALJ erred in weighing the opinion of his treating psychiatrist, Dr. Junaid.
Plaintiff contends that the ALJ ignored or mischaracterized Dr. Junaid’s treatment notes, placed
too much emphasis on Plaintiff’s activities of daily living, and did not adequately address the
side effects of Plaintiff’s medications. Second, and relatedly, Plaintiff contends that the record
does not support the ALJ’s conclusion that Dr. Junaid’s treatment notes show that his symptoms
are generally well controlled. Third, Plaintiff argues that the RFC did not include limitations
sufficient to address Plaintiff’s OCD. Finally, Plaintiff argues that Dr. Cottone’s opinion is not
consistent with the ALJ’s conclusions.
The Commissioner contends, inter alia, that Plaintiff relies too heavily on treatment notes
from visits occurring after the ALJ’s decision, and that the ALJ only found that Plaintiff’s
symptoms were manageable.
II.

Standard of Review and Analytical Framework
To be eligible for SSI or DIB benefits, a claimant must prove that she is disabled within

the meaning of the Act. See Baker v. Sec’y of Health and Human Servs., 955 F.2d 552, 555 (8th
Cir. 1992); Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Under the Act, a
disability is defined as the “inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §§ 423(d)(1)(A) and 1382c (a)(3)(A). A claimant will be found to have a
disability “only if [her] physical or mental impairment or impairments are of such severity that

7

[she] is not only unable to do [her] previous work but cannot, considering [her] age, education
and work experience, engage in any other kind of substantial gainful work which exists in the
national economy.” 42 U.S.C. § 423(d)(2)(A) and 1382c(a)(3)(B). See also Bowen v. Yuckert,
482 U.S. 137, 140 (1987).
Per regulations promulgated by the Commissioner, the ALJ follows a five-step process in
determining whether a claimant is disabled. “During this process the ALJ must determine: ‘1)
whether the claimant is currently employed; 2) whether the claimant is severely impaired; 3)
whether the impairment is, or is comparable to, a listed impairment; 4) whether the claimant can
perform past relevant work; and if not 5) whether the claimant can perform any other kind of
work.’” Andrews v. Colvin, 791 F.3d 923, 928 (8th Cir. 2015) (quoting Hacker v. Barnhart, 459
F.3d 934, 936 (8th Cir. 2006)). “If, at any point in the five-step process the claimant fails to
meet the criteria, the claimant is determined not to be disabled and the process ends.” Id. (citing
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005)). See also Martise v. Astrue, 641 F.3d 909,
921 (8th Cir. 2011).
The Eighth Circuit has emphasized that a district court’s review of an ALJ’s disability
determination is intended to be narrow and that courts should “defer heavily to the findings and
conclusions of the Social Security Administration.” Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir.
2010) (quoting Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001)). The ALJ’s findings
should be affirmed if they are supported by “substantial evidence” on the record as a whole. See
Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008). Substantial evidence is “less than a
preponderance, but enough that a reasonable mind might accept it as adequate to support a
decision.” Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008); see also Wildman v. Astrue,
964 F.3d 959, 965 (8th Cir. 2010) (same).
Despite this deferential stance, a district court’s review must be “more than an

8

examination of the record for the existence of substantial evidence in support of the
Commissioner’s decision.” Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998). The district
court must “also take into account whatever in the record fairly detracts from that decision.” Id.
Specifically, in reviewing the Commissioner’s decision, a district court is required to examine
the entire administrative record and consider:
1.
2.
3.
4.
5.
6.

The credibility findings made by the ALJ.
The claimant’s vocational factors.
The medical evidence from treating and consulting physicians.
The claimant’s subjective complaints relating to exertional and nonexertional activities and impairments.
Any corroboration by third parties of the claimant’s impairments.
The testimony of vocational experts, when required, which is based upon a
proper hypothetical question which sets forth the claimant’s impairment.

Stewart v. Sec’y of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (citation
omitted).
A reviewing court should not disturb the ALJ’s decision unless it falls outside the
available “zone of choice” defined by the evidence of record. Buckner v. Astrue, 646 F.3d 549,
556 (8th Cir. 2011). A decision does not fall outside that zone simply because the reviewing
court might have reached a different conclusion had it been the finder of fact in the first instance.
Id.; see also Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016). Similarly, if the record
supports inconsistent conclusions, and the ALJ’s decision reflects one of those conclusions, then
a reviewing court must affirm the decision. See McNamara v. Astrue, 590 F.3d 607, 610 (8th
Cir. 2010).
III.

Analysis
As explained below, the ALJ’s treatment of Dr. Junaid’s opinion rests in part on what

appears to be an erroneous analysis of the medical evidence. This error could very well impact
the weight given to Dr. Junaid’s opinion and Plaintiff’s RFC.

9

The ALJ gave “limited weight” to Dr. Junaid’s opinion for several reasons. In in
explaining her reasons, the ALJ noted that, “[u]nder ‘prognosis,’ Dr. Junaid suggests ‘treatment
resistant symptoms’ despite treatment notes indicating good response. Overall, Dr. Junaid’s
opinion bears little resemblance to his treatment notes.” (Tr. 19) The undersigned has reviewed
each of Dr. Junaid’s treatment notes and does not believe that the record as a whole supports the
ALJ’s conclusion in this regard. 6
One somewhat unique aspect of this matter is that Plaintiff received regular and
consistent treatment from the same provider—Dr. Junaid—over the course of seven or eight
years. The medical record shows that Dr. Junaid consistently diagnosed Plaintiff with bipolar
disorder and OCD. Starting at least in 2013 and continuing until 2015, Dr. Junaid also regularly
noted that Plaintiff’s OCD was persistent, severe, and/or resistant to treatment and medication.
(See, e.g., Tr. at 252, 253, 295, 297, 301, 345) There is nothing in the record to suggest that
Plaintiff is malingering. To the contrary, the record shows Plaintiff’s consistent and persistent
efforts to seek psychological assistance, including routine medication management and
adjustments. Thus, the record does not support the ALJ’s conclusion that Dr. Junaid’s opinion
bears little similarity to his treatment notes as to the treatment resistant nature of Plaintiff’s OCD
symptoms.
This issue with the ALJ’s decision cannot easily be dismissed as harmless error or as an
error in opinion writing. Plaintiff contends that the RFC articulated by the ALJ does not
adequately account for his OCD symptoms. During the administrative hearing, the VE testified
that it would be unacceptable if a prospective worker had to take two or three extra breaks per
6

The ALJ also notes that Dr. Junaid’s “treatment records indicate no side effects” from
Plaintiff’s medications. (Tr. 19) This characterization of the record may be too broad. Dr.
Junaid’s notes show that he adjusted and modified Plaintiff’s medications, and his treatment
notes discuss timing of medications to avoid drowsiness and the like. So, it is not entirely
accurate to say the treatment records indicate no side effects of the medications.

10

day to wash their hands, but it would not be a problem if the worker could use hand sanitizer
instead. (Tr. 86-87) Thus, it is important to allow the ALJ to fully consider and explain how the
treatment resistant nature of Plaintiff’s OCD would, if at all, alter Plaintiff’s RFC. If Plaintiff
would require several additional breaks to wash his hands, he could be precluded from
competitive employment.
Because the weight assigned to Dr. Junaid’s opinion might change upon considering the
treatment resistant nature of Plaintiff’s OCD symptoms, the undersigned does not believe it
would be prudent to address any other issues raised by Plaintiff herein.
CONCLUSION
For the reasons stated above, the Court cannot say that the Commissioner’s decision is
supported by substantial evidence on the record as a whole. The matter must be remanded to
allow the Commissioner to reconsider the weight to be accorded to Dr. Junaid’s opinion with
proper consideration of the medical evidence indicating that Plaintiff suffered from treatment
resistant OCD symptoms. This reconsideration could impact several issues on remand, including
Plaintiff’s credibility and RFC, among others.
Accordingly,
IT IS HEARBY ORDERED that, the decision of the Commissioner is REVERSED,
and this cause is REMANDED to the Commissioner for further proceedings consistent with this
Memorandum and Order.
A separate Judgment shall be entered this day.

/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
United States Magistrate Judge
Dated this 18th

day of July , 2017.

11