Windle v. Berryhill

Filing 24

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is reversed, and this case is remanded for further proceedings consistent with this Memorandum and Order. A separate Judgment is entered herewith. Signed by District Judge Rodney W. Sippel on 6/18/2018. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JACK WINDLE,
Plaintiff,
v.
NANCY A. BERRYHILL,
Deputy Commissioner of Operations,
Social Security Administration,
Defendant.

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No. 4:17 CV 1919 RWS

MEMORANDUM AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial
review of the Commissioner’s decision denying his application for disability
insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§
401-434, and supplemental security income pursuant to Title XVI, 42 U.S.C. §§
1381 et seq. Because the Commissioner’s final decision is not supported by
substantial evidence on the record as a whole, I will reverse the decision of the
Commissioner and remand for further proceedings consistent with this
Memorandum and Order.
Procedural History
Plaintiff alleged he became disabled beginning January 14, 2016, because of
a learning disorder, low IQ, mood disorder, depression, and back pain.

Plaintiff’s application was initially denied March 20, 2014. After a hearing
before an ALJ January 12, 2016, the ALJ issued a decision denying benefits on
March 16, 2016. On May 16, 2017, the Appeals Council denied plaintiff’s request
for review. The ALJ’s decision is thus the final decision of the Commissioner. 42
U.S.C. § 405(g).
In this action for judicial review, plaintiff contends that the ALJ erred in his
duty to fully and fairly develop the record. Plaintiff asks that I reverse the
Commissioner’s final decision and remand the matter for further evaluation. For
the reasons that follow, I will reverse the Commissioner’s decision.
Medical Records and Other Evidence Before the ALJ
With respect to the medical records and other evidence of record, I adopt
plaintiff’s recitation of facts set forth in his Statement of Material Facts (ECF #181) as they are admitted by the Commissioner (ECF #23-1). I also adopt the
additional facts set forth in the Commissioner’s Statement of Additional Material
Facts (ECF #23-2), as they are unrefuted by plaintiff. Together, these statements
provide a fair and accurate description of the relevant record before the Court.
Additional specific facts will be discussed as needed to address the parties’
arguments.

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Discussion
A.

Legal Standard
To be eligible for disability insurance benefits under the Social Security Act,

plaintiff must prove that he is disabled. Pearsall v. Massanari, 274 F.3d 1211,
1217 (8th Cir. 2001); Baker v. Secretary of Health & Human Servs., 955 F.2d 552,
555 (8th Cir. 1992). The Social Security Act defines disability 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). An individual will be declared disabled “only
if [his] physical or mental impairment or impairments are of such severity that [he]
is not only unable to do [his] previous work but cannot, considering [his] 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).
To determine whether a claimant is disabled, the Commissioner engages in a
five-step evaluation process. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482
U.S. 137, 140-42 (1987). The Commissioner begins by deciding whether the
claimant is engaged in substantial gainful activity. If the claimant is working,
disability benefits are denied. Next, the Commissioner decides whether the
claimant has a “severe” impairment or combination of impairments, meaning that
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which significantly limits his ability to do basic work activities. If the claimant’s
impairment(s) is not severe, then he is not disabled. The Commissioner then
determines whether claimant’s impairment(s) meets or equals one of the
impairments listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. If claimant’s
impairment(s) is equivalent to one of the listed impairments, he is conclusively
disabled. At the fourth step, the Commissioner establishes whether the claimant
can perform his past relevant work. If so, the claimant is not disabled. Finally, the
Commissioner evaluates various factors to determine whether the claimant is
capable of performing any other work in the economy. If not, the claimant is
declared disabled and becomes entitled to disability benefits.
I must affirm the Commissioner’s decision if it is supported by substantial
evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402
U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).
Substantial evidence is less than a preponderance but enough that a reasonable
person would find it adequate to support the conclusion. Johnson v. Apfel, 240
F.3d 1145, 1147 (8th Cir. 2001). Determining whether there is substantial
evidence requires scrutinizing analysis. Coleman v. Astrue, 498 F.3d 767, 770 (8th
Cir. 2007).
I must consider evidence that supports the Commissioner’s decision as well
as any evidence that fairly detracts from the decision. McNamara v. Astrue, 590
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F.3d 607, 610 (8th Cir. 2010). If, after reviewing the entire record, it is possible to
draw two inconsistent positions and the Commissioner has adopted one of those
positions, I must affirm the Commissioner’s decision. Anderson v. Astrue, 696
F.3d 790, 793 (8th Cir. 2012). I may not reverse the Commissioner’s decision
merely because substantial evidence could also support a contrary outcome.
McNamara, 590 F.3d at 610.
When evaluating evidence of pain or other subjective complaints, the ALJ is
never free to ignore the subjective testimony of the claimant, even if it is
uncorroborated by objective medical evidence. Basinger v. Heckler, 725 F.2d
1166, 1169 (8th Cir. 1984). The ALJ may, however, disbelieve a claimant’s
subjective complaints when they are inconsistent with the record as a whole. See
e.g., Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir. 1990). In considering the
subjective complaints, the ALJ is required to consider the factors set out by Polaski
v. Heckler, 739 F.2d 1320 (8th Cir. 1984), which include:
claimant’s prior work record, and observations by third parties
and treating and examining physicians relating to such matters
as: (1) the claimant’s daily activities; (2) the duration,
frequency, and intensity of the pain; (3) precipitating and
aggravating factors; (4) dosage, effectiveness and side effects of
medication; and (5) functional restrictions.
Id. at 1322. When an ALJ explicitly finds that the claimant’s testimony is not
credible and gives good reasons for the findings, the court will usually defer to the
ALJ=s finding. Casey v. Astrue, 503 F.3d 687, 696 (8th Cir. 2007). However, the
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ALJ retains the responsibility of developing a full and fair record in the nonadversarial administrative proceeding. Hildebrand v. Barnhart, 302 F.3d 836, 838
(8th Cir. 2002).
B.

ALJ’s Decision
In his written decision, the ALJ found that plaintiff had not engaged in

substantial gainful activity since the alleged onset date of January 14, 2014. The
ALJ found plaintiff to have severe impairments of borderline intellectual
functioning, learning disorder, depressive disorder, atrophy of the brain, and
hearing loss, but determined that they did not meet or medically equal a listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 18-20.) The ALJ
found plaintiff to have the RFC to perform a full range of work at all exertional
levels with the following nonexertional limitations: work must not require fine
hearing capability, frequent verbal communications, frequent telephone
communications, or complex written or verbal communications; the work must be
simple and routine, requiring only occasional decision making and occasional
changes in the work setting; and, the work must involve no more than occasional
interaction with the public and coworkers. (Tr. 20.) Relying on testimony from a
vocational expert, the ALJ found plaintiff capable of performing his past relevant
work as a sander and packer. (Tr. 27.) The ALJ therefore found plaintiff not to be
disabled from his onset date through the date of the decision. (Tr. 27.)
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C.

Failure to Develop the Record
Plaintiff argues that the ALJ failed to adequately develop the record because

he did not request the CT scan from plaintiff’s emergency room visit at St.
Anthony’s Medical Center on July 20, 2014, which revealed premature global
brain atrophy. (Tr. 402.) Although the ALJ determined that one of plaintiff’s
severe impairments was brain atrophy, the CT scan does not appear in the record.
Plaintiff’s treating psychiatrist, Miriam Schroder, M.D., mentioned the results of
the CT scan in her treatment notes dated July 22, 2014, as well as in her mental
residual functional capacity questionnaire completed on July 15, 2015, in
connection with plaintiff’s application for benefits. (Tr. 402, 436-440.) In her
RFC questionnaire, Dr. Schroeder specifically indicates that St. Anthony’s Medical
Center should be contacted for the results of the CT scan. (Tr. 440.) In his written
decision denying benefits, the ALJ found as follows with respect to plaintiff’s
brain atrophy:
Even though the record lacks the actual report of a CT scan of the brain that
shows some atrophy, I have considered this as a severe impairment since Dr.
Schroeder mentioned it in her reports. Dr. Schroeder suggests there may be
some psychological or behavioral abnormalities associated with a
dysfunction of the brain based on the claimant’s history and her
examinations that she indicated showed the presence of a specific organic
factor judged to be etiologically related to the abnormal mental state;
however, she acknowledged that there is no evidence of loss of previously
acquired functional abilities.

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(Tr. 20.). Dr. Schroeder’s RFC questionnaire actually indicates the presence
“psychological or behavioral abnormalities associated with a dysfunction of the
brain,” which she opined included a history of lead poisoning and brain atrophy as
shown on plaintiff’s CT scan, “with a specific organic factor judge to be
etiologically related to the abnormal state.” With respect to the part of the
questionnaire asking whether these abnormalities also related to the “loss of
previously acquired functional abilities,” Dr. Schroeder noted that she was “not
sure they (i.e., functional abilities), were ever acquired to begin with.” (Tr. 437.)
“Social security hearings are non-adversarial, and an ALJ has a duty to fully
develop the record, even when the claimant is represented by an attorney.”
Johnson v. Astrue, 627 F.3d 316, 319-20 (8th Cir. 2010) (internal quotation marks
and citation omitted). An ALJ should contact a treating or consulting physician if
a critical issue is left undeveloped. Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir.
2005). However, “[t]he ALJ is required to order medical examinations and tests
only if the medical records presented to him do not give sufficient medical
evidence to determine whether the claimant is disabled.” McCoy v. Astrue, 648
F.3d 605, 612 (8th Cir. 2011). Where other evidence in the record provides a
sufficient basis for an ALJ’s decision, then an ALJ “is permitted to issue a decision
without obtaining additional medical evidence.” Anderson v. Shalala, 51 F.3d 777,
779 (8th Cir. 1995) (internal quotation marks and citation omitted).
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Here, the ALJ substantially erred by failing to adequately develop the record
regarding plaintiff’s brain atrophy, which the ALJ determined was a severe
impairment. The only evidence in the record regarding plaintiff’s brain atrophy
was Dr. Schroeder’s summary of plaintiff’s CT scan taken at St. Anthony’s
Medical Center, which showed “premature global brain atrophy.” Dr. Schroeder’s
summary does not include the complete test results or an interpretation of the
results. The ALJ’s decision does not address plaintiff’s brain atrophy beyond
listing it as a severe impairment and then concluding that there was “no loss of
previously acquired functional abilities” according to Dr. Schroeder. The ALJ
misinterpreted Dr. Schroeder’s opinion regarding plaintiff’s psychological or
behavioral abnormalities associated with a dysfunction of the brain, which she
opined could be the result of lead poisoning as a child and/or his brain atrophy.
Dr. Schroeder indicated that such abnormalities were present and “etiologically
related to the abnormal mental state.” But her opinion with respect to the brain
dysfunction resulting in a “loss of previously acquired functional abilities” was
only that plaintiff may have never possessed certain functional abilities due to his
borderline intellectual functioning. Dr. Schroeder never rendered an opinion as to
the nature and extent of plaintiff’s brain atrophy on his overall functioning, as she
is a psychiatrist, not a neurologist. In fact, Dr. Schroeder indicated on her RFC
questionnaire that plaintiff was at his maximum expected functional ability with no
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further improvement expected, and she suggested obtaining plaintiff’s CT scan
showing brain atrophy as an “additional reason not covered above [in her opinion]
why [plaintiff] would have difficulty working at a regular job on a sustained
basis.” (Tr. 440.) Dr. Schroeder indicated that these medical records would shed
additional light on plaintiff’s work-related limitations.
Here, the ALJ did not have sufficient medical evidence on the record as a
whole to evaluate plaintiff’s severe impairments, and he substantially erred by
proceeding to fashion plaintiff’s RFC without first obtaining the CT scan and
ordering a consultative examination of plaintiff by a neurologist, who could opine
as to the nature and severity plaintiff’s brain atrophy, as well as any resulting
current and future limitations. Without this minimum amount of information, the
ALJ was unable to adequately evaluate the severity of plaintiff’s impairments,
including his brain atrophy, and to determine whether these impairments, whether
individually or in combination, met or medically equaled a listed impairment. The
record as a whole also does not contain sufficient evidence to support the ALJ’s
RFC determination where the crucial issue regarding plaintiff’s brain atrophy
remains undeveloped.
Upon remand, the ALJ should obtain plaintiff’s CT scan and medical
records from St. Anthony’s Medical Center, order a consultative examination of
plaintiff by a neurologist, contact plaintiff’s treating psychiatrist, Dr. Schroeder, to
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determine whether the examining neurologist’s report and any other additional
evidence regarding plaintiff’s brain atrophy alters her assessment of plaintiff’s
mental RFC, and order any additional tests or examinations necessary to determine
the nature and extent of plaintiff’s brain atrophy. The ALJ should also obtain and
consider the vocational rehabilitation records mentioned by Dr. Schroeder to
determine plaintiff’s true functional abilities.1 The ALJ should consult any
additional experts needed to properly assess plaintiff’s limitations in order to
formulate his RFC and to determine whether plaintiff is capable of performing past
relevant work. The ALJ should also reassess plaintiff’s credibility under the
standards set forth in Polaski, 739 F.2d at 1322, keeping in mind that, given his
impairments, plaintiff’s willingness to work may not be a reliable indicator of his
ability to work. See Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001)
(“With regard to mental disorders, the Commissioner’s decision ‘must take into
account evidence indicating that the claimant’s true functional ability may be
substantially less than the claimant asserts or wishes.’”) (quoting Parsons v.
Heckler, 739 F.2d 1334, 1341 (8th Cir.1984)).
Because the Commissioner’s final decision that plaintiff is not disabled is
not supported by substantial evidence on the record as a whole, it is reversed and
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“[T]he burden of persuasion to prove disability and to demonstrate RFC remains on the
claimant,” Eichelberger v. Barnhart, 390 F.3d 584, (8th Cir. 2004), so plaintiff’s counsel
remains responsible for providing the ALJ with any additional evidence necessary to make a
disability determination.
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this case is remanded for further proceedings consistent with this opinion.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
reversed, and this case is remanded for further proceedings consistent with this
Memorandum and Order. A separate Judgment is entered herewith.

____________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

Dated this 18th day of June, 2018.

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