Clark v. Colvin

Filing 28

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the relief which Plaintiff seeks in her Complaint and Brief in Support of Plaintiffs Complaint is GRANTED in part and DENIED in part. [Docs. 1 , 18 , 24 .] IT IS FURTHER ORDERED that the Commissi oners decision of September 17, 2015 is REVERSED and REMANDED to re-evaluate the weight given to the medical opinions of Dr. Spencer and Dr. Jones and provide a new RFC determination. IT IS FURTHER ORDERED that a Judgment will be filed contemporaneously with this Memorandum and Order remanding this case to the Commissioner of Social Security for further consideration pursuant to 42 U.S.C. § 405(g), sentence 4. Signed by Magistrate Judge Nannette A. Baker on 3/20/18. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CHRISTINA CLARK,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:16-CV-1893 NAB

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of
Social Security’s final decision denying Christina Clark’s application for supplemental security
income under the Social Security Act, 42 U.S.C. § 416 et seq. Clark alleged disability due to
depression.

(Tr. 146.)

The parties have consented to the exercise of authority by the

undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Doc. 8.] The
Court has reviewed the parties’ briefs and the entire administrative record, including the hearing
transcripts and the medical evidence. The Court heard oral argument in this matter on March 8,
2018. Because the ALJ’s decision was not supported by substantial evidence, the Court will
reverse and remand this action for further proceedings.
I.

Issue for Review
Clark presents one issue for review. She asserts that the administrative law judge’s

(“ALJ”) residual functional capacity (“RFC”) determination was not supported by substantial
evidence, because the ALJ did not properly weigh the medical opinions of consultative examiner
Dr. Thomas Spencer and her treating doctor Dr. Melissa Jones. The Commissioner asserts that

the ALJ’s decision is supported by substantial evidence in the record as a whole and should be
affirmed.
II.

Standard of Review
The Social Security Act defines disability as an “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 has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 416(i)(1)(A).
The standard of review is narrow. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.
2001). This Court reviews decisions of the ALJ to determine whether the decision is supported
by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is
less than a preponderance, but enough that a reasonable mind would find adequate support for
the ALJ’s decision. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). The court determines
whether evidence is substantial by considering evidence that detracts from the Commissioner’s
decision as well as evidence that supports it. Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006).
The Court may not reverse just because substantial evidence exists that would support a contrary
outcome or because the Court would have decided the case differently. Id. If, after reviewing
the record as a whole, the Court finds it possible to draw two inconsistent positions from the
evidence and one of those positions represents the Commissioner’s finding, the Commissioner’s
decision must be affirmed. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004). The
Court must affirm the Commissioner’s decision so long as it conforms to the law and is
supported by substantial evidence on the record as a whole. Collins ex rel. Williams v. Barnhart,
335 F.3d 726, 729 (8th Cir. 2003).

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III.

Discussion
Clark contends that the ALJ’s RFC determination and disability determination are not

supported by substantial evidence, because the ALJ improperly discounted the opinion of the
consultative examiner and her treating physician. The RFC is defined as what the claimant can
do despite his or her limitations, and includes an assessment of physical abilities and mental
impairments. 20 C.F.R. § 416.945(a). The RFC is a function-by-function assessment of an
individual’s ability to do work related activities on a regular and continuing basis. 1 SSR 96-8p,
1996 WL 374184, at *1 (July 2, 1996). It is the ALJ’s responsibility to determine the claimant’s
RFC based on all relevant evidence, including medical records, observations of treating
physicians and the claimant’s own descriptions of his limitations. Pearsall, 274 F.3d at 1217.
An RFC determination made by an ALJ will be upheld if it is supported by substantial evidence
in the record. See Cox, 471 F.3d at 907.
In this case, the ALJ found that Clark had the severe impairments of
“anxiety/depression/bipolar disorder, body dysmorphic disorder, and obesity.” (Tr. 18.) He
found that she had the RFC to perform the full range of sedentary work with the following nonexertional limitations: no exposure to work hazards; limited to simple unskilled work with no
contact with the general public and only occasional contact with co-workers and supervisors.
(Tr. 20.) In formulating the RFC, the ALJ reviewed several medical opinions regarding Clark’s
mental health impairments. Medical opinions are statements from physicians and psychologists
or other acceptable medical sources that reflect judgments about the nature and severity of a
claimant’s impairments, including symptoms, diagnosis and prognosis, and what the claimant

1

A “regular and continuing basis” means 8 hours a day, for 5 days a week, or an equivalent work schedule. SSR
96-8p, 1996 WL 374184, at *1.

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can still do despite impairments and physical or mental restrictions. 20 C.F.R. § 416.927(a)(2) 2.
All medical opinions, regardless of the source, are weighed based on (1) whether the provider
examined the claimant; (2) whether the provider is a treating source; (3) length of treatment
relationship and frequency of examination, including nature and extent of the treatment
relationship; (4) supportability of opinion with medical signs, laboratory findings, and
explanation; (5) consistency with the record as a whole; (6) specialization; and (7) other factors
which tend to support or contradict the opinion. 20 C.F.R. § 416.927(c).
Dr. Spencer, a state agency psychologist, and Dr. Jones, Clark’s treating physician both
prepared written medical opinions regarding Clark’s mental health. (Tr. 267-70, 677-78.) The
ALJ gave partial weight to Dr. Spencer’s opinion and little weight to Dr. Jones’ opinion. The
Court will now address the ALJ’s evaluation of each opinion.
A.

Dr. Spencer

Dr. Spencer, a licensed psychologist, was hired by the Social Security Administration to
conduct a psychological examination of Clark. The evaluation took place on March 6, 2014.
(Tr. 267-270.) Dr. Spencer reported that Clark’s mental status examination indicated that she
had fair eye contact, mildly pressured and loud speech, and she fidgeted. (Tr. 269). He noted
that she cooperated and was a decent historian. (Tr. 269.) Her insight and judgment were fairly
intact. (Tr. 269.) He described her as anxious. (Tr. 269.) During the examination, she denied
suicidal and homicidal thoughts and was alert to person, time, place, and event. (Tr. 269.) He
did not observe her responding to internal stimuli and no delusional beliefs were elicited. (Tr.
269.) He described her flow of thought as intact and relevant. (Tr. 269.) Dr. Spencer stated that
based on her vocabulary, grammar, and general fund of knowledge, Clark appeared to be low

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Many Social Security regulations were amended effective March 27, 2017. Per 20 C.F.R. §§ 416.325, 416.927, the
court will use the regulations in effect at the time that this claim was filed.

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average to average intelligence. (Tr. 269.) Dr. Spencer diagnosed Clark with generalized
anxiety disorder and depressive disorder not otherwise specified. (Tr. 269.) He opined that she
retained the ability to understand and remember simple to moderately complex instructions and
the ability to engage in and persist with simple moderately complex tasks. (Tr. 270.) He also
opined that she demonstrated mild to moderate impairment in her ability to interact socially and
in her ability to adapt to changes in the workplace. (Tr. 270.)
“State agency medical and psychological consultants and other program physicians,
psychologists, and other medical specialists are highly qualified physicians, psychologists, and
other medical specialists who are also experts in Social Security disability evaluation.” 20
C.F.R. § 416.927(e)(2)(i). “Therefore, administrative law judges must consider findings and
other opinions of State agency medical and psychological consultants and other program
physicians, psychologists, and other medical specialists as opinion evidence, except for the
ultimate determination about whether a claimant is disabled.” Id. Unless the claimant’s treating
source is given controlling weight, the administrative law judge must explain the weight given to
the opinions of a state agency psychological consultant.

Id.

“A single evaluation by a

nontreating psychologist is generally not entitled to controlling weight.” Teague v. Astrue, 638
F.3d 611, 615 (8th Cir. 2011).
The ALJ gave partial weight to Dr. Spencer’s opinion, because Dr. Spencer “uses terms
that do not specifically define what the clamant is capable of doing on a vocational basis.” (Tr.
25.) The Court finds that the ALJ’s evaluation of Dr. Spencer’s opinion was not supported by
substantial evidence. The only portion of Dr. Spencer’s opinion that is not included in the RFC
is his opinion that she demonstrated mild to moderate impairment in her ability to adapt to
change in the workplace. Dr. Spencer’s language regarding Clark’s ability to adapt to change in

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the workplace is similar to the language he used regarding Clark understanding and remembering
instructions, her ability to engage and persist in tasks, and her social interaction. The ALJ
acknowledges that Dr. Spencer’s opinion is generally consistent with Dr. Beezley’s opinion,
Clark’s other treatment providers, and Clark’s college grades. Dr. Jones found that Clark had
limitations in the ability to respond to changes in the workplace, as well. (Tr. 678.) Therefore,
the Court finds that the ALJ’s reasoning for giving Dr. Spencer’s opinion partial weight is not
supported by substantial evidence in the record.
B.

Dr. Melissa Jones

Next, Clark received mental health treatment from Dr. Melissa Jones, between October
2014 and August 2015. During her treatment, Dr. Jones diagnosed Clark with bipolar disorder
mixed, type 2; body dysmorphic disorder, and binge eating. On August 19, 2015, Dr. Jones
completed a Medical Source Statement Mental regarding Clark.

(Tr. 677-78.)

Dr. Jones

diagnosed Clark with Bipolar mood disorder, type two; body dysmorphic disorder, and
borderline personality disorder. (Tr. 677.) She indicated that Clark experienced drowsiness and
lack of focus as side effects of her medications. (Tr. 677.) She opined that Clark would
experience days when she would need to leave work prematurely or be absent approximately 4
days per month. (Tr. 677.) She also opined that Clark would off task 25% or more of the time.
(Tr. 677.) Dr. Jones opined that Clark was moderately limited 3 in the ability to understand and
remember very short and simple instructions and maintaining socially appropriate behavior and
to adhere to basic standards of neatness and cleanliness. (Tr. 677-78.) Dr. Jones opined that

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Moderately limited was defined as “impairment levels are compatible with some, but not all, useful functioning.
Considered to be 1 standard deviation below the norm, or 30% overall reduction in performance.” (Tr. 677.)

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Clark was markedly limited 4 in the ability to carry out very short and simple instructions;
maintain attention and concentration for extended periods, perform activities within a schedule,
maintain regular attendance, and be punctual with customary tolerances; sustain an ordinary
routine without special supervision; make simple work related decisions; ask simple questions or
seek assistance; accept instructions and respond appropriately to criticism from supervisors;
respond appropriately to changes in the work setting; be aware and to take appropriate
precautions; and travel in unfamiliar places or use public transportation. (Tr. 677-78.) Dr. Jones
opined that Clark was extremely limited 5 in the ability to understand, remember, and carry out
detailed instructions, work in coordination with or proximity to others without being distracted
by them, ability to complete a normal workday and workweek without interruption from
psychologically based symptoms and to perform at a consistent pace without an unreasonable
number and length of rest periods; ability to interact with the general public; and get along with
coworkers or peers without distracting them or exhibiting behavioral extremes. (Tr. 677-78.)
Generally, a treating physician’s opinion is given controlling weight, but is not inherently
entitled to it. Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006). A treating physician’s
opinion “does not automatically control or obviate the need to evaluate the record as a whole.”
Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007). A treating physician’s opinion will be
given controlling weight if the opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the
case record. Hacker, 459 F.3d at 937. “Whether the ALJ grants a treating physician’s opinion
substantial or little weight, the regulations provide that the ALJ must ‘always give good reasons’
4

Markedly limited was defined as “more than moderate, but less than extreme resulting in limitations that seriously
interferes with the ability to function independently. Considered to be 2 standard deviations below the norm, or
60% overall reduction in performance.” (Tr. 677.)
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Extremely limited was defined as “impairment level precludes useful functioning in this category. Considered to
be 3 standard deviations below the norm, or 90% overall reduction in performance.” (Tr. 677.)

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for the particular weight given to a treating physician’s evaluation.” Prosch v. Apfel, 201 F.3d
1010, 1013 (8th Cir. 2000).
The ALJ gave little weight to Dr. Jones’ opinion. (Tr. 25.) The ALJ stated that Dr.
Jones’ statements that Clark would miss four or more days of work per month, would be off task
25% of the work day due to her impairments, and has marked or extreme limitations in
essentially every functional capacity were vague. (Tr. 25.) The ALJ also stated that Dr. Jones’
opinion was inconsistent with the opinions of Dr. Spencer and Dr. Beezley, Clark’s treatment
record, and the record as a whole. (Tr. 25.)
The Court finds that the ALJ erred in giving little weight to Dr. Jones’ opinion. A review
of the records indicates that the doctors’ opinions are not inconsistent, because the doctors’ were
making their observations at different times during different manifestations of Clark’s mental
illness. In March 2014, Clark met with Dr. Spencer she was enrolled in online classes for her
school and had recently dropped a class. (Tr. 267-68.) She was also not receiving regular
treatment for her psychiatric symptoms.

(Tr. 267-70.)

When Dr. Beezley completed her

Medical Source Statement Mental on September 15, 2014, she had met with Clark twice. (Tr.
274-75, 322-23.) In July 2014, Clark reported that she had trouble sleeping and Dr. Beezley
recommended power naps and a sleep schedule. (Tr. 324.) On September 12, 2014, Clark
reported that her depression and fatigue were significantly impacting her social support and
school performance. (Tr. 323.) Clark also reported obsession with her physical appearance. (Tr.
323.) A week after Dr. Beezley’s medical source statement mental, Clark reported that she had
some relief from her anxiety and depression, but her mind was racing and disrupting her
studying. (Tr. 322.) Dr. Beezley had opined that Clark was markedly limited in her ability to
maintain attention and concentration for extended periods. (Tr. 275.) Dr. Beezley also noted

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that “Patient is able to concentrate and sustain attention when the environment is clear of
distraction and with good mood/lack of depression.” (Tr. 274.)
Dr. Jones completed her evaluation on August 19, 2015, ten months after she began
treating Clark. (Tr. 677-78.) Just a month prior, Clark had reported to Dr. Jones that she had
mixed cleaners and tried to drink it and had thought about stabbing herself with scissors and she
was overwhelmed, stressed, and her therapy was not helping her. (Tr. 644.) She declined to go
to a hospital stating it would not help.

(Tr. 646.)

In the previous year, Clark had been

hospitalized twice for suicide attempts. (Tr. 324-34, 346-61.) The record contains several
adjustments of Clark’s medication in response to her symptoms.
The doctors’ opinions were based on each doctors’ experience with Clark at the time of
her examination and prior visits. The record indicates a waxing and waning of symptoms, which
should be considered. Bi-polar disorder is a condition commonly known to wax and wane.
Dillon v. Colvin, 210 F.Supp.3d 198, 1209 (D.S.D. 2016). “It is not unexpected for an individual
with [this condition] to appear and act healthy, while at other times to suffer from the extreme,
debilitating problems [this condition causes]. Id. Just as a person with physical impairments
need not be bedridden or completely helpless to be found disabled, a person with mental
impairments does not have to be hospitalized or suicidal every day to be found disabled. See
Reed v. Barnhart, 399 F.3d 917, 923 (8th Cir. 2005) (well settled law that a claimant need not be
bedridden or helpless to be found disabled). The Eighth Circuit has repeatedly held that “a
person’s ability to engage in personal activities such as cooking, cleaning, and hobbies does not
constitute substantial evidence that he or she has the functional capacity to engage in substantial
gainful activity.” Kelley v. Callahan, 133 F.3d 583, 588-89 (8th Cir. 1998). Clark’s stable and
less stable periods are consistent with chronic mental disability. See 20 C.F.R. Part 401, Subpt.

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P, App. 1, 12.00(F) (in cases involving chronic mental disorder, overt symptomatology may be
controlled or attenuated by psychosocial factors such as highly structured and supportive settings
that may greatly reduce the mental demands on the claimant. With lowered mental demands,
overt symptoms and signs of the underlying mental disorder may be minimized, but the ability to
function outside of a structured or supportive setting may not have changed). Therefore, the
ALJ’s reasons for discounting Dr. Jones’ opinion are not supported by the record as a whole.
IV.

Conclusion
Based on the foregoing, the undersigned finds that the Commissioner’s final decision was

not supported by substantial evidence in the record. Therefore, the Court will reverse and
remand this action for further proceedings consistent with this memorandum and order.
The Court also observed some concerning comments made by the ALJ during the
administrative hearing. The ALJ questioned Clark’s fatigue as not being associated with a
bipolar or depression diagnosis, because he had never heard of it. (Tr. 39.) He also suggested
specific medication to treat her symptoms (Tr. 44.) and opined that people picked on her at
school because of her weight. (Tr. 53.) The ALJ suggested that her memory and concentration
problems exist because “some people are good and better at some subjects than others, and is
that really that unusual?” (Tr. 61.) The most egregious comments involved the ALJ advising
Clark that her method of suicide was not truly a suicidal act, because he did not believe that
taking the entire bottle of Tylenol pills could damage her liver all at once. (Tr. 54.) The ALJ
also told Clark, “But doesn’t terminating the conversation and going about your way, rather than
becoming suicidal, make more sense than becoming suicidal?” (Tr. 58.) Clark began crying and
had to take a break during the ALJ’s questioning. (Tr. 56.) These comments and “questions”
were not necessary to the adjudication of this case.

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The ALJ’s personal opinions about

medication, effectiveness of suicide attempts, and diagnosing Clark’s behavior should be
avoided upon remand of this action.
Accordingly,
IT IS HEREBY ORDERED that the relief which Plaintiff seeks in her Complaint and
Brief in Support of Plaintiff’s Complaint is GRANTED in part and DENIED in part. [Docs.
1, 18, 24.]
IT IS FURTHER ORDERED that the Commissioner’s decision of September 17, 2015
is REVERSED and REMANDED to re-evaluate the weight given to the medical opinions of
Dr. Spencer and Dr. Jones and provide a new RFC determination.
IT IS FURTHER ORDERED that a Judgment will be filed contemporaneously with
this Memorandum and Order remanding this case to the Commissioner of Social Security for
further consideration pursuant to 42 U.S.C. § 405(g), sentence 4.
Dated this 20th day of March, 2018.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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