Stufflebean v. Colvin

Filing 14

ORDER REMANDING CASE TO THE COMMISSIONER FOR FURTHER PROCEEDINGS. Signed on 3/28/17 by Chief District Judge Greg Kays. (Strodtman, Tracy)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
CLARENCE STUFFLEBEAN, JR.,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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No. 2:15-CV-04262-DGK-SSA

ORDER REMANDING CASE TO COMMISSIONER FOR FURTHER PROCEEDINGS
This action seeks judicial review of the Acting Commissioner of Social Security’s (“the
Commissioner”) decision denying Plaintiff Clarence Stuffelbean Jr.’s (“Plaintiff”) application for
Social Security disability insurance benefits under Title II of the Social Security Act (“the Act”),
42 U.S.C. §§ 401–434. The Administrative Law Judge (“ALJ”) found Plaintiff had severe
impairments, including a history of strokes with mild residual left-sided weakness, cognitive
disorder, and depression, but retained the residual functional capacity (“RFC”) to work as an
electronic components bonder, patcher, and woodworking inspector.
After carefully reviewing the record and the parties’ arguments, the Court finds the ALJ’s
decision does not give good reasons for discounting the neuropsychologist’s opinion. Because
this deficiency is outcome determinative, the Court REMANDS this case to the Commissioner
for further proceedings consistent with this opinion.
Procedural and Factual Background
The complete facts and arguments are presented in the parties’ briefs and are repeated
here only to the extent necessary.

It appears to the Court Plaintiff filed his application for disability insurance benefits on
January 3, 2013,1 alleging a disability onset date of November 8, 2012.
The Commissioner denied the application at the initial claim level, and Plaintiff appealed
the denial to an ALJ. The ALJ held a hearing, and on April 18, 2014, issued her decision finding
Plaintiff was not disabled.

The Appeals Council denied Plaintiff’s request for review on

September 23, 2015, leaving the ALJ’s decision as the Commissioner’s final decision. Plaintiff
has exhausted all administrative remedies and judicial review is now appropriate under 42 U.S.C.
§ 405(g).
Standard of Review
A federal court’s review of the Commissioner’s decision to deny disability benefits is
limited to determining whether the Commissioner’s findings are supported by substantial
evidence on the record as a whole. Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016).
Substantial evidence is less than a preponderance, but is enough evidence that a reasonable mind
would find it sufficient to support the Commissioner’s decision. Id. In making this assessment,
the court considers evidence that detracts from the Commissioner’s decision, as well as evidence
that supports it.

Id. The court must “defer heavily” to the Commissioner’s findings and

conclusions. Wright v. Colvin, 789 F.3d 847, 852 (8th Cir. 2015). The court may reverse the
Commissioner’s decision only if it falls outside of the available zone of choice; a decision is not
outside this zone simply because the evidence also points to an alternate outcome. Buckner v.
Astrue, 646 F.3d 549, 556 (8th Cir. 2011).

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The Court notes there are a variety of opinions concerning when Plaintiff filed his application. Plaintiff contends
he applied on January 4, 2013, the date the Commission mailed him a copy of a form he completed on January 3. R.
at 132. The ALJ found Plaintiff protectively filed for benefits on December 13, 2012. R. at 12, 163. Defendant
contends he filed on March 19, 2013. The Court does not know how Defendant calculated this date.

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Discussion
The Commissioner follows a five-step sequential evaluation process2 to determine
whether a claimant is disabled, that is, unable to engage in any substantial gainful activity by
reason of a medically determinable impairment that has lasted or can be expected to last for a
continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A). Plaintiff argues the ALJ
erred at step four because she: (1) improperly discounted the opinion of a neuropsychologist; and
(2) improperly discounted Plaintiff’s credibility.
I.

The ALJ did not give good reasons for discounting the neuropsychologist’s opinion.
The parties agree Plaintiff had a series of minor strokes in the fall of 2012 leaving him

with weakness on the left side of his body and some cognitive impairments. The issue in this
case concerns the extent of these cognitive impairments and their impact on his RFC.
Roughly a year after suffering these strokes, Plaintiff’s treating doctor referred him to a
neuropsychologist, Dr. Kim Dionysus, Psy. D. (“Dr. Dionysus”), for a psychological
examination. R. at 442. Dr. Dionysus conducted extensive psychological and cognitive testing
of Plaintiff over two days in December of 2013. R. at 441-42. She then wrote a nine-page report
explaining the test results and her conclusions. R.at 441-49.
Dr. Dionysus noted that even before the strokes Plaintiff’s neuropsychological
functioning was in the borderline range, with a full-scale IQ of 72. R. at 445. She opined that
any test results which now fell below the borderline range were attributable to his strokes. R. at
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“The five-step sequence involves determining whether (1) a claimant’s work activity, if any, amounts to substantial
gainful activity; (2) his impairments, alone or combined, are medically severe; (3) his severe impairments meet or
medically equal a listed impairment; (4) his residual functional capacity precludes his past relevant work; and (5) his
residual functional capacity permits an adjustment to any other work. The evaluation process ends if a
determination of disabled or not disabled can be made at any step.” Kemp ex rel. Kemp v. Colvin, 743 F.3d 630, 632
n.1 (8th Cir. 2014); see 20 C.F.R. §§ 404.1520(a)–(g). Through Step Four of the analysis the claimant bears the
burden of showing that he is disabled. After the analysis reaches Step Five, the burden shifts to the Commissioner
to show that there are other jobs in the economy that the claimant can perform. King v. Astrue, 564 F.3d 978, 979
n.2 (8th Cir. 2009).

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445. Relevant to this case, she found Plaintiff’s working memory was below borderline, in the
“extremely low” range, ranking in the bottom 1% of the population. R. at 446. She concluded
the strokes had left him with “residual cognitive deficits” and, as part of her diagnosis and
assessment, opined “[c]ognitive and psychological factors work to diminish his ability to
maintain a consistent occupational status.” R. at 446 (emphasis added).
Two months later Dr. Dionysus completed a Medical Source Statement – Mental (“MSSM”) for Plaintiff. Unlike many medical source statements this Court has seen, this MSS-M was
not a transparent attempt to procure benefits for a patient by describing the subject as “markedly”
or “extremely” limited in almost every area of functioning. On the contrary, Dr. Dionysus’s
opinions appeared to be reasonable and consistent with the results of her earlier objective testing.
Dr. Dionysus found Plaintiff was “mildly limited” in half of the twenty categories of functioning,
“moderately limited”3 in five, “markedly limited”4 in four, and not “extremely limited”5 in any
category. R. at 475-76.
Dr. Dionysus found Plaintiff was “markedly” limited in his ability to: (1) understand and
remember detailed instructions; (2) maintain attention and concentration for extended periods;
(3) perform activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances; and (4) 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. R. at 475-76. Dr. Dionysus also indicated that

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The MSS-M defined “moderately limited” as impairment levels compatible with some, but not all, useful
functioning, considered to be one standard deviation below the norm, or a 30% overall reduction in performance. R.
at 475.
4

The MSS-M defined “markedly limited” as seriously interfering with his ability to function independently, two
standard deviations below the norm or a 60% overall reduction in performance. R. at 475.
5

The MSS-M defined “extremely limited” as precluding useful functioning in this category, three standard
deviations below the norm, or a 90% overall reduction in performance. R. at 475.

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Plaintiff would have “bad days causing need to leave work prematurely or be absent”; that he
would miss approximately four days per month; and that his symptoms would interfere with his
ability to perform even simple tasks. R. at 475.
The ALJ gave “some weight” to Dr. Dionysus’s opinion, finding it “generally consistent
with an ability to perform simple, unskilled work, which is consistent with her own testing and
that of Dr. Doyle.” R. at 20. But the ALJ gave “no weight” to Dr. Dionysus’s finding that
Plaintiff would miss four days of work per month due to psychological symptoms, claiming Dr.
Dionysus provided “no explanation for this conclusion, and there is nothing in the record to
suggest that the claimant would experience this level of absenteeism.” R. at 20. The ALJ did
not discuss or acknowledge Dr. Dionysus’s findings identifying four areas of functioning in
which Plaintiff was markedly limited, or Dr. Dionysus’s earlier objective testing, both of which
arguably support the conclusion that Plaintiff would miss four days of work a month.
It is well established that if an ALJ discounts a treating physician’s opinion, she must
give “good reasons” for doing so. Dolph v. Barnhart, 308 F.3d 876, 878-79 (8th Cir. 2002).
Here, the ALJ has not given good reasons for doing so because she did not discuss important
parts of Dr. Dionysus’s MSS-M which are inconsistent with her decision to give no weight to Dr.
Dionysus’s opinions about Plaintiff’s expected absenteeism. If accepted by the ALJ, this opinion
might result in a revised RFC determination that would result in Plaintiff being found disabled.6
This deficiency is not a mere deficiency in opinion-writing technique, it is outcome
determinative, and so this case must be remanded for further proceedings.

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The Court also notes Plaintiff raises fair questions about other aspects of the ALJ’s decision, such as whether it
relied too much on Dr. Doyle and Dr. Bustin’s opinions, or whether in assessing Plaintiff’s credibility the ALJ gave
sufficient credit to his work history.

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II.

The Court cannot determine whether the ALJ properly analyzed Plaintiff’s
credibility.
Plaintiff also contends the ALJ erred in analyzing his credibility. Because the ALJ’s

analysis of Plaintiff’s credibility is based in part on her analysis of Dr. Dionysus’s credibility,
which is unclear, the Court cannot address this issue.
Conclusion
For the reasons discussed above, the Court REMANDS this case to the Commissioner for
further proceedings consistent with this opinion.
IT IS SO ORDERED.
Date:

March 28, 2017

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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