Brugmann v. Berryhill

Filing 26

MEMORANDUM..The ALJ erred in determining Brugmanns mental RFC. Because the ALJs opinion finding Brugmann not disabled is not supported by substantial evidence on the record as a whole, it is reversed and this matter is remanded for further proceeding s consistent with this opinion. Upon remand, the ALJ shall properly weigh the medical opinion evidence, including the new evidencesubmitted to the Appeals Council; obtain additional evidence if necessary; and formulate a new mental RFC based on the record as a whole.. Signed by Magistrate Judge Abbie Crites-Leoni on 3/26/19. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KATHERINE G. BRUGMANN,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Deputy Commissioner of Operations,
Social Security Administration,
Defendant.

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Case No. 4:18 CV 80 ACL

MEMORANDUM
Plaintiff Katherine G. Brugmann brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of the Social Security Administration Commissioner’s denial of her application for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act and Supplemental
Security Income (“SSI”) under Title XVI of the Act.
An Administrative Law Judge (“ALJ”) found that, despite Brugmann’s severe
impairments, she was not disabled as she had the residual functional capacity (“RFC”) to perform
work existing in significant numbers in the national economy.
This matter is pending before the undersigned United States Magistrate Judge, with
consent of the parties, pursuant to 28 U.S.C. § 636(c). A summary of the entire record is
presented in the parties’ briefs and is repeated here only to the extent necessary.
For the following reasons, the decision of the Commissioner will be reversed and
remanded.

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I. Procedural History
Brugmann filed her applications for benefits on May 12, 2014, claiming that she became
unable to work on November 20, 2013. (Tr. 298-312.) In her Disability Report, she alleged
disability due to bipolar disorder, general anxiety disorder, post-traumatic stress disorder
(“PTSD”), depression, and chronic migraines. (Tr. 339.) Brugmann was 34 years of age at the
time of her alleged onset of disability. Her claims were denied initially. (Tr. 232-37.)
Following an administrative hearing, Brugmann’s claims were denied in a written opinion by an
ALJ, dated March 10, 2017. (Tr. 17-33.) Brugmann then filed a request for review of the ALJ’s
decision with the Appeals Council of the Social Security Administration (SSA), which was denied
on November 20, 2017. (Tr. 1-5.) Thus, the decision of the ALJ stands as the final decision of
the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.
In this action, Brugmann first argues that the ALJ “failed to properly consider RFC.”
(Doc. 18 at 3.) She next argues that the ALJ “failed to fully and fairly develop the evidence.” Id.
at 10.
II. The ALJ’s Determination
The ALJ first found that Brugmann met the insured status requirements of the Act through
December 31, 2016. (Tr. 22.) Brugmann had not engaged in substantial gainful activity since
November 20, 2013, the application date. Id. In addition, the ALJ concluded that Brugmann had
the following severe impairments: bipolar disorder, depression, and chronic headaches. Id. The
ALJ found that Brugmann did not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments. (Tr. 23.)
As to Brugmann’s RFC, the ALJ stated:
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After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform a range of work at all exertional levels but with the
following nonexertional limitations: She should never be required to
work around hazards, such as unprotected heights and she must
avoid exposure to concentrated vibration as well as dust, odors,
fumes and other pulmonary irritants. She can only work in
environments with moderate noise levels. She is limited to
performing simple, routine tasks and work requiring only simple
work-related decisions. She is capable of frequent interactions
with supervisors and co-workers, but should be limited to only
occasional contact with the public.
Id.
The ALJ found that Brugmann was unable to perform any past relevant work, but was
capable of performing jobs existing in significant numbers in the national economy, such as hand
packer, laundry/dry cleaning, and janitor. (Tr. 27-28.) The ALJ therefore concluded that
Brugmann was not under a disability, as defined in the Social Security Act, from November 20,
2013, through the date of the decision. (Tr. 29.)
The ALJ’s final decision reads as follows:
Based on the application for a period of disability and disability
insurance benefits filed on May 12, 2014, the claimant is not
disabled under sections 216(i) and 223(d) of the Social Security Act.
Based on the application for supplemental security income
protectively filed on May 12, 2014, the claimant is not disabled
under section 1614(a)(3)(A) of the Social Security Act.
Id.

III. Applicable Law
III.A. Standard of Review
The decision of the Commissioner must be affirmed if it is supported by substantial

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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 of the evidence, 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). This “substantial
evidence test,” however, is “more than a mere search of the record for evidence supporting the
Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (internal
quotation marks and citation omitted). “Substantial evidence on the record as a whole . . .
requires a more scrutinizing analysis.” Id. (internal quotation marks and citations omitted).
To determine whether the Commissioner’s decision is supported by substantial evidence
on the record as a whole, the Court must review the entire administrative record and consider:
1.

The credibility findings made by the ALJ.

2.

The plaintiff’s vocational factors.

3.

The medical evidence from treating and consulting physicians.

4.

The plaintiff’s subjective complaints relating to exertional and
non-exertional activities and impairments.

5.

Any corroboration by third parties of the plaintiff’s
impairments.

6.

The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
claimant’s impairment.

Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (internal
citations omitted). The Court must also consider any evidence which fairly detracts from the
Commissioner’s decision. Coleman, 498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047, 1050
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(8th Cir. 1999). However, even though two inconsistent conclusions may be drawn from the
evidence, the Commissioner's findings may still be supported by substantial evidence on the
record as a whole. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001) (citing Young v.
Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). “[I]f there is substantial evidence on the record as a
whole, we must affirm the administrative decision, even if the record could also have supported an
opposite decision.” Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
marks and citation omitted). See also Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 977 (8th
Cir. 2003).
III.B. Determination of Disability
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 that has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. § 416.905. A claimant
has a disability when the claimant is “not only unable to do his previous work but cannot,
considering his age, education and work experience engage in any kind of substantial gainful work
which exists … in significant numbers in the region where such individual lives or in several
regions of the country.” 42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social Security
Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. § 416.920; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). First,
the Commissioner will consider a claimant’s work activity. If the claimant is engaged in
substantial gainful activity, then the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(i).

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Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see “whether the claimant has a severe impairment that significantly limits the claimant’s
physical or mental ability to perform basic work activities.” Dixon v. Barnhart, 343 F.3d 602,
605 (8th Cir. 2003). “An impairment is not severe if it amounts only to a slight abnormality that
would not significantly limit the claimant’s physical or mental ability to do basic work activities.”
Kirby, 500 F.3d at 707; see 20 C.F.R. §§ 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes necessary to
do most jobs.” 20 C.F.R. § 416.921(b). These abilities and aptitudes include (1) physical
functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and
remembering simple instructions; (4) use of judgment; (5) responding appropriately to
supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work
setting. Id. § 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141 (1987). “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 ability to work.”
Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotation marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled, regardless
of age, education, and work experience. 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d); see Kelley
v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to

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determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements” of
the claimant’s past relevant work. 20 C.F.R. §§ 416.920(a)(4)(iv), 416.945(a)(4). “RFC is a
medical question defined wholly in terms of the claimant’s physical ability to perform exertional
tasks or, in other words, what the claimant can still do despite his or his physical or mental
limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks
omitted); see 20 C.F.R. § 416.945(a)(1). The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the claimant]
get medical reports from [the claimant’s] own medical sources.” 20 C.F.R. § 416.945(a)(3).
The Commissioner also will consider certain non-medical evidence and other evidence listed in
the regulations. See id. If a claimant retains the RFC to perform past relevant work, then the
claimant is not disabled. Id. § 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is other
work that the claimant can do, given the claimant’s RFC as determined at Step Four, and his or his
age, education, and work experience. See Bladow v. Apfel, 205 F.3d 356, 358-59 n.5 (8th Cir.
2000). The Commissioner must prove not only that the claimant’s RFC will allow the claimant to
make an adjustment to other work, but also that the other work exists in significant numbers in the
national economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
numbers in the national economy, then the Commissioner will find the claimant is not disabled. If
the claimant cannot make an adjustment to other work, then the Commissioner will find that the

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claimant is disabled. 20 C.F.R. § 416.920(a)(4)(v). At Step Five, even though the burden of
production shifts to the Commissioner, the burden of persuasion to prove disability remains on the
claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
The evaluation process for mental impairments is set forth in 20 C.F.R. §§ 404.1520a,
416.920a. The first step requires the Commissioner to “record the pertinent signs, symptoms,
findings, functional limitations, and effects of treatment” in the case record to assist in the
determination of whether a mental impairment exists. See 20 C.F.R. §§ 404.1520a(b)(1),
416.920a(b)(1). If it is determined that a mental impairment exists, the Commissioner must
indicate whether medical findings “especially relevant to the ability to work are present or absent.”
20 C.F.R. §§ 404.1520a(b)(2), 416.920a(b)(2). The Commissioner must then rate the degree of
functional loss resulting from the impairments in four areas deemed essential to work: activities
of daily living, social functioning, concentration, and persistence or pace. See 20 C.F.R. §§
404.1520a(b)(3), 416.920a(b)(3). Functional loss is rated on a scale that ranges from no
limitation to a level of severity which is incompatible with the ability to perform work-related
activities. See id. Next, the Commissioner must determine the severity of the impairment based
on those ratings. See 20 C.F.R. §§ 404.1520a(c), 416.920a(c). If the impairment is severe, the
Commissioner must determine if it meets or equals a listed mental disorder. See 20 C.F.R. §§
404.1520a(c)(2), 416.920a(c)(2). This is completed by comparing the presence of medical
findings and the rating of functional loss against the paragraph A and B criteria of the Listing of the
appropriate mental disorders. See id. If there is a severe impairment, but the impairment does
not meet or equal the listings, then the Commissioner must prepare an RFC assessment. See 20
C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3).

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IV. Discussion
Brugmann argues that the ALJ erred in determining Brugmann’s RFC. Specifically, she
contends that the ALJ failed to fully and fairly develop the record with regard to her mental RFC,1
and improperly based her determination on the opinion of a non-examining medical consultant.
Brugmann further argues that new evidence submitted to the Appeals Council supports her claim
and would have changed the ALJ’s determination.
RFC is what a claimant can do despite her limitations, and it must be determined on the
basis of all relevant evidence, including medical records, physician’s opinions, and claimant’s
description of her limitations. Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001). Although
the ALJ bears the primary responsibility for assessing a claimant’s RFC based on all relevant
evidence, a claimant’s RFC is a medical question. See Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir.
2001); Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000). Therefore, an ALJ is required to
consider at least some supporting evidence from a medical professional. See Lauer, 245 F.3d at
704 (some medical evidence must support the determination of the claimant’s RFC); Casey v.
Astrue, 503 F.3d 687, 697 (8th Cir. 2007) (the RFC is ultimately a medical question that must find
at least some support in the medical evidence in the record). However, “there is no requirement
that an RFC finding be supported by a specific medical opinion.” Hensley v. Colvin, 829 F.3d
926, 932 (8th Cir. 2016).
“It is the ALJ’s function to resolve conflicts among the various treating and examining
physicians.” Tindell v. Barnhart, 444 F.3d 1002, 1005 (8th Cir. 2006) (quoting Vandenboom v.
Barnhart, 421 F.3d 745, 749-50 (8th Cir. 2005) (internal marks omitted)). The opinion of a
treating physician will be given “controlling weight” only if it is “well supported by medically

1

Brugmann does not challenge the ALJ’s findings with regard to her physical impairments.
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acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] record.” Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000).
The record, though, should be “evaluated as a whole.” Id. at 1013 (quoting Bentley v. Shalala, 52
F.3d 784, 785-86 (8th Cir. 1997)). The ALJ is not required to rely on one doctor’s opinion
entirely or choose between the opinions. Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011).
The opinion of a consulting physician, who examines a claimant once, or not at all, generally
receives very little weight. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000).
Brugmann was unrepresented at the administrative hearing. She initially appeared on
August 17, 2016, at which time she expressed a desire to proceed without representation. (Tr.
152.) The ALJ stated that the most recent medical records in the file were dated October 2014.
(Tr. 157.) The ALJ rescheduled the hearing, so that current records could be obtained. (Tr.
157-58.)
It is well-settled that “the ALJ bears a responsibility to develop the record fairly and fully,
independent of the claimant's burden to press h[er] case.” Snead v. Barnhart, 360 F.3d 834, 838
(8th Cir. 2004). That duty is heightened where, as here, the claimant is not represented by
counsel. See Reeder v. Apfel, 214 F.3d 984, 987 (8th Cir. 2000).
A second hearing was held on February 1, 2017. (Tr. 163.) Brugmann was
unrepresented, and again waived her right to representation. (Tr. 164.) Brugmann testified that
she was unable to work due to anxiety and depression. (Tr. 169.) She stated that she saw a
caseworker, a therapist, and a psychiatrist for her mental impairments. (Tr. 170.) Brugmann’s
caseworker, Kelsey Hayes, testified at the hearing. (Tr. 190-93.) Ms. Hayes testified that she
had been providing support for Brugmann approximately twice a week since 2014. (Tr. 190-91.)
Ms. Hayes explained that her role of “integrated health specialist” involves talking to Brugmann

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about her issues, helping ensure Brugmann’s medical and daily needs are met, and connecting her
with resources. (Tr. 191.)
The ALJ concluded that Brugmann had the mental RFC to perform simple, routine tasks;
work requiring only simple work-related decisions; and was capable of “frequent interactions with
supervisors and co-workers, but should be limited to only occasional contact with the public.”
(Tr. 23.) In assessing Brugmann’s RFC, the ALJ referenced the “limited opinion evidence.”
(Tr. 27.) She afforded “significant weight” to the November 2014 opinion of State agency
medical expert Charles Watson, Psy.D. Id. The ALJ explained that Dr. Watson’s opinion was
“consistent with the record and the claimant’s self-reported level of function.” Id. The ALJ
concluded that her RFC determination was supported by “the absence of sufficiently convincing
evidence the claimant suffers from any debilitating condition that would prevent her from
performing in occupations such as those listed by the vocational expert...” Id.
Following the ALJ’s decision, Brugmann hired an attorney, and submitted the following
additional evidence to the Appeals Council: treatment records from SSM Behavioral Health
Medicine dated June 12, 2015 to June 15, 2016 (114 pages), and records from Greg Mattingly,
M.D., dated April 19, 2017 (2 pages). (Tr. 2.) The Appeals Council found that this evidence
“does not show a reasonable probability that it would change the outcome of the decision.” Id.
The Regulations provide that, “[i]f new and material evidence is submitted, the Appeals
Council shall consider the additional evidence only where it related to the period on or before the
date of the administrative law judge hearing decision.” 20 C.F.R. §§ 404.970(b), 4.16.1470(b).
“Where...the Appeals Council considers new evidence but denied review, [the Court] must
determine whether the ALJ’s decision was supported by substantial evidence on the record as a
whole, including the new evidence.” Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007).

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The records submitted to the Appeals Council from SSM Health DePaul relate to
Brugmann’s psychiatric hospitalization from June 12, 2015, to June 15, 2015, due to suicidal
ideation and a suicide attempt. (Tr. 42.) Brugmann had attempted suicide by overdosing on 50
pills of insomnia medication. Id. She explained that following an argument with her
fifteen-year-old daughter, she “became very upset and decided to end it all.” Id. Brugmann had
previously been admitted to the psychiatric unit in 2001, and had a history of overdosing on
medication and alcohol. Id. Brugmann also reported a history of PTSD relating to physical
abuse by her husband. Id. Upon discharge, Brugmann was diagnosed with bipolar disorder,
borderline personality disorder, and alcohol abuse. (Tr. 39.)
The evidence from Dr. Mattingly consists of a letter dated April 19, 2017, in which he
indicated Brugmann had been under his care for the prior three years to address Brugmann’s
problems with bipolar depression. (Tr. 8-9.) Dr. Mattingly stated that Brugmann had “struggled
with rather severe problems with bipolar depression which have caused severe limitations and
disabilities within her functional capacity and her ability to maintain gainful employment.” (Tr.
8.) He stated that, “despite aggressive medication management,” Brugmann continued to have
problems with insomnia, daytime fatigue requiring repeated naps, difficulties with stress tolerance
where she emotionally decompensates under only mild to moderately stressful environments, and
problems with processing speed and working memory. Id. Dr. Mattingly saw Brugmann on that
date, at which time she was tearful, fatigued, had decreased cognitive processing, her mood was
“terrible,” and she felt hopeless and overwhelmed. Id. Brugmann’s diagnoses were: bipolar
affective disorder, depressed; underlying generalized anxiety disorder; and PTSD. Id. Dr.
Mattingly expressed the opinion that Brugmann was “100% disabled from a psychiatric
perspective.” (Tr. 9.)

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The records submitted to the Appeals Council relate to the relevant time period, and are not
cumulative. When the entire record is considered, including the new evidence, the undersigned
finds that the mental RFC formulated by the ALJ is unsupported by substantial evidence.
The only opinion evidence considered by the ALJ is that of State agency medical expert
Dr. Watson. Dr. Watson expressed the opinion that Brugmann retained the capacity to acquire
and retain simple instructions and sustain concentration and persistence with simple, repetitive
tasks. (Tr. 210.) Brugmann “appeared to have the capacity to adapt to changes in settings that
do not require frequent public contact or very close interaction with others in the workplace.” Id.
The ALJ accorded significant weight to this opinion, finding it was consistent with the record.
As an initial matter, the undersigned notes it is questionable whether the ALJ’s RFC is
consistent with Dr. Watson’s opinion. Specifically, the ALJ found that Brugmann was capable of
“frequent interactions with supervisors and co-workers,” whereas Dr. Watson found Brugmann
was incapable of “very close interaction with others in the workplace.” (Tr. 23, 210.)
Additionally, Dr. Watson authored his opinion in November 2014, more than two years prior to the
ALJ’s decision. Dr. Watson’s opinion, therefore, pre-dated Brugmann’s psychiatric
hospitalization following her suicide attempt as well as Dr. Mattingly’s opinion.
Although the ALJ was not required to rely upon a particular physician’s opinion, the
medical evidence of record is not supportive of the ALJ’s findings. The record before the ALJ
contained some hand-written treatment notes of Dr. Mattingly, reflecting he diagnosed Brugmann
with bipolar disorder and treated her with medication from 2014 through 2016. (Tr. 491-94,
513-14, 657-59.) The ALJ noted that Brugmann complained about her husband’s emotional
abusiveness to Dr. Mattingly in August 2014. (Tr. 26.) The ALJ remarked that this suggested

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that Brugmann’s “depression is more situational than a result of any pervasive mental illness.”
Id.
The only other evidence before the ALJ was the Behavioral Health Assessment performed
by Ms. Hayes on behalf of Crider Health Center in August 2016. (Tr. 665-92.) Ms. Hayes
indicated that Brugmann had been enrolled in community support services since 2014 and had
been seeing Ms. Hayes specifically for ten months. (Tr. 668.) Brugmann had been hospitalized
one year prior after fighting with her daughter. Id. She had been seeing her psychiatrist, Dr.
Mattingly, on a regular basis for four years, and also saw a counselor “nearly every week.” Id.
Ms. Hayes diagnosed Brugmann with bipolar I disorder; most recent episode depressed, severe
without psychotic features; and generalized anxiety disorder; with a GAF score of 47.2 (Tr. 690.)
Ms. Hayes stated that Brugmann continued to require a “rehabilitation level of support,” including
regular monitoring from a psychiatrist, semi-regular visits with her counselor, and weekly visits
from a caseworker. Id. She noted that Brugmann “requires assistance improving her personal
hygiene,” as her fear of falling prevents her from showering on a regular basis. Id. Ms. Hayes
stated that Brugmann required assistance creating healthy coping techniques rather than
avoidance. Id. Finally, she indicated that Brugmann continued to require medication. (Tr.
691.)
The ALJ discussed portions of Ms. Hayes’ evaluation in her opinion. For example, she
stated that Brugmann’s mood was fluctuating “due to issues with her children, further supporting a
finding that her depression and anxiety are primarily situational in nature.” (Tr. 26-27.) The

2

GAF scores of 41 to 50 represent “serious symptoms” or “any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).” See American
Psychiatric Ass’n., Diagnostic and Statistical Manual of Mental Disorders 34 (Text Revision 4th
ed. 2000) (“DSM IV–TR”).

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ALJ also cited Brugmann’s ability to answer all questions asked of her, pleasant and cooperative
nature, and normal memory. (Tr. 26, 687-89.) The ALJ accorded “no weight” to the GAF score
assigned by Ms. Hayes, as Ms. Hayes was not an “acceptable medical source.” (Tr. 27.)
The ALJ’s finding that Brugmann’s “depression” was “situational” was erroneous.
Brugmann has been consistently diagnosed with bipolar disorder, which the ALJ found was a
severe impairment at step two. No medical provider suggested that Brugmann’s bipolar disorder
symptoms were caused by purely situational factors. Indeed, such an inference is inconsistent
with the nature of bipolar disorder.
The record before the ALJ revealed that Brugmann saw a psychiatrist regularly since 2014
for treatment of her bipolar disorder. Additionally, Brugmann saw a caseworker at least weekly
for assistance with daily activities, including medication management, as well as coordination of
her healthcare. Ms. Hayes’ report referenced Brugmann’s psychiatric hospitalization in 2015.
In light of the medical evidence before the ALJ, Brugmann’s pro se status, and the ALJ’s
acknowledgment of the lack of recent medical evidence, the ALJ should have further developed
the record by either requesting additional information from treating providers or ordering a
consultative examination.
The evidence subsequently submitted to the Appeals Council by counsel confirmed that
Brugmann was hospitalized for a suicide attempt by drug overdose in June 2015, and had a history
of suicide attempts by overdose. Further, Dr. Mattingly provided insight regarding Brugmann’s
condition and its effects on her ability to work.
Considering the medical evidence discussed above, the ALJ’s mental RFC determination
is not supported by substantial evidence on the record as a whole.

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Conclusion
The ALJ erred in determining Brugmann’s mental RFC. Because the ALJ’s opinion
finding Brugmann not disabled is not supported by substantial evidence on the record as a whole, it
is reversed and this matter is remanded for further proceedings consistent with this opinion. Upon
remand, the ALJ shall properly weigh the medical opinion evidence, including the new evidence
submitted to the Appeals Council; obtain additional evidence if necessary; and formulate a new
mental RFC based on the record as a whole.

_____________________________________
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 26th day of March, 2019.

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