Matters v. Astrue

Filing 10

ORDER entered by Judge Nanette Laughrey. Barbara Matters's Petition [Doc. # 3] is GRANTED. The decision of the ALJ is REVERSED and remanded for reconsideration consistent with this Order. (Kanies, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
BARBARA S. MATTERS
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No. 11-5033-CV-SW-NKL

ORDER
Plaintiff Barbara Matters challenges the Social Security Commissioner’s denial of her
application for disability insurance benefits under Title II of the Social Security Act (“the
Act”), 42 U.S.C. §§ 401 et. seq., and supplemental security income benefits under Title XVI
of the Act, 42 U.S.C. §§ 1381, et. seq.
Matters argues that the Administrative Law Judge (“ALJ”) erred in (1) failing to find
her depression and anxiety severe; (2) failing to consider Dr. Gibbons’s order that she elevate
her feet above her heart three to four times a day; and (3) failing to provide specific reasons
for discounting her credibility. The Court finds error on all three points, and remands for
further proceedings.
I.

Factual Background
The complete facts and arguments are presented in the parties’ briefs and will be duplicated

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here only to the extent necessary.1 Matters was hospitalized twice due to her mental health,

once involuntarily and once voluntarily. (Tr. 228; Tr. 238). Her involuntary inpatient
hospitalization for mental health treatment at the St. John’s Regional Medical Center
occurred when police were called by friends who witnessed Matters threatening homicide
to her daughter and threatening suicide and self-mutilation. (Tr. 229). Matters reported that
she was not actually going to hurt herself, but was trying to “shock” her daughter into “being
normal” after her daughter had first threatened suicide and self-harm. (Tr. 229). At that
time, she was assessed a Global Assessment of Functioning (“GAF”) score of 20. (Tr. 239).
Matters’s second inpatient hospitalization for mental impairments was voluntary. (Tr.
239). Her treating physician, Dr. Orlando, noted that Matters “has been under extreme levels
of stress” because of her daughter’s suicide and the loss of a dog, among other reasons. (Tr.
241). Dr. Orlando also noted her suicidal ideations and plan. (Tr. 241). Dr. Orlando
diagnosed Matters with “Depressive disorder NOS, with anxiety” and assessed a GAF score
of 30. (Tr. 243). All of her treating providers noted her depression and anxiety issues. (Tr.
227; Tr. 229; Tr. 263; Tr. 307; Tr. 321; Tr. 322). Matters also received numerous
prescriptions for psychiatric medication. She has been prescribed Wellbutrin, Paxil,
Cymbalta, Trazadone, and Celexa. (Tr. 232; Tr. 268; Tr. 308; Tr. 324). Additionally, she
sought ongoing outpatient mental health treatment at the Ozark Center. (Tr. 221 – 227).
On March 8, 2007, Matters had a consultative psychological evaluation with John
Keough, a licensed psychologist. (Tr. 269-71). Matters told Mr. Keough that she attended
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Portions of the parties’ briefs are adopted without quotation designated.
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therapy every six months. (Tr. 269). Upon examination, Matters appeared to experience a
mild to moderate level of depression, but had no suicidal thoughts. (Tr. 270). Her memory
was adequate and she could understand and follow simple instructions. (Tr. 270). Mr.
Keough diagnosed Matters as dysthymic with mood disorder and assigned her a GAF of 50
to 70. (Tr. 271). Mr. Keough opined that Matters could understand and remember simple
instructions and had only mild to moderate limitations in sustaining concentration and
persistence. (Tr. 271). Mr. Keough also opined that Matters had only mild limitations in
adjusting to changes and interacting appropriately in social situations. (Tr. 271).
On March 20, 2007, Kenneth Burstin, Ph.D., a state agency reviewing psychologist,
completed a mental RFC assessment for Matters. (Tr. 273-74). Dr. Burstin opined that
Matters had moderate limitations in understanding and remembering detailed instructions,
but had no significant limitations in understanding and remembering simple instructions. (Tr.
273). Dr. Burstin also determined that Matters had no significant limitations in accepting
instructions or getting along with co-workers or peers. (Tr. 274).
On August 7, 2009, Matters had a consultative psychological examination with Kevin
Whisman, Psy.D. (Tr. 335). She told Dr. Whisman that she was not receiving any mental
health treatment. (Tr. 337). She said her stutter was aggravating, but she otherwise felt good
about herself. (Tr. 336). She did not think her stuttering was caused by stress, because she
did not feel stressed out. (Tr. 336). Upon examination, Matters’s affect was normal, her
mood was euthymic, and she presented very few symptoms of an emotional disturbance. (Tr.
336). She denied having difficulty interacting with her previous co-workers and expressed
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interest in seeking employment. (Tr. 337). Matters had a verbal IQ of 78, a performance IQ
of 80, and a full scale IQ of 77. (Tr. 338). Her memory test scores were in the high average
range and her Minnesota Multiphase Personality Inventory (MMPI) scores suggested a
person attempting to portray a pathological profile. (Tr. 339). Dr. Whisman noted that
Matters did not stutter during the examination until she started discussing her stuttering
problem. (Tr. 340). Dr. Whisman diagnosed Matters with a conversion disorder, rule out
malingering, and assigned her a GAF of 55 to 60. (Tr. 340). Dr. Whisman opined that
Matters could understand and remember instructions in most all tasks, sustain concentration
and persistence in simple to moderately complex tasks, and interact socially in a restricted
environment. (Tr. 340-41, 345-46).
Matters went to Ozark Tri-County Health Care Consortium several times from August
2007 to November 2007. (Tr. 315-22). In August, Matters complained of pain in her lower
back, hips, knees, and ankles, but her gait and coordination were normal and she had no
edema (swelling). (Tr. 322). The next month, Matters reported stuttering and was diagnosed
with anxiety, depression, and back and leg pain. (Tr. 320). In October and November,
Matters complained of back pain, but had a normal gait and normal coordination. (Tr.
315-18). She said that her depression level varied. (Tr. 315).
Three months later, on February 18, 2008, Matters returned to Tri-County and
reported feeling jittery. (Tr. 313-14). She said she had anxiety, but was doing well with
Celexa. (Tr. 313). She had a normal gait and normal coordination. (Tr. 314). Three months
after that, on June 10, 2008, Matters complained of gout and ankle pain, but had a steady gait
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and a full range of motion in all of her extremities. (Tr. 311-12). Her memory was normal.
(Tr. 312).
On September 15, 2008, Matters returned to Tri-County and complained of headaches,
feet swelling, and left hip pain. (Tr. 309). Her mental status was normal and her memory
and mood were good. (Tr. 310). She was instructed to exercise and was diagnosed with
sciatic nerve pain, gout, and edema. (Tr. 310). In December 2008, Matters complained of
back and leg pain. (Tr. 308). She had tenderness in her lower back, but her gait was steady
(Tr. 308). Her affect and memory were good. (Tr. 308). She was counseled to exercise and
quit smoking. (Tr. 308).
Matters received care from Dr. Thomas Gibbons of Access Family Care from 2007
- 2009. (Tr. 300 – 326). Dr. Gibbons assessed chronic back pain, depression, anxiety,
morbid obesity, peripheral edema, hyperlipidemia, and osteoarthritis among other
impairments. (Tr. 300 – 326). To treat Matters’s peripheral edema, Dr. Gibbons instructed
her to elevate her feet above her heart three to four times per day. (Tr. 304).
Matters had two hearings before an ALJ, because of uncontrollable stuttering at the
first hearing. At the second hearing, Matters testified to numerous limitations. She testified
to pain in her back, hips, and knees. (Tr. 33). She also testified to uncontrollable stuttering,
which she self-assessed as being caused by stress. (Tr. 36). She further testified to
unmanageable swelling in her feet and legs. (Tr. 34 – 35). She testified that she elevates her
legs to relieve her pain four to five times a day. (Tr. 35). She testified that she cannot stand
for very long, and that she must take frequent breaks when doing the dishes. (Tr. 37– 38).
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She testified that it takes her approximately 30 minutes to walk one block. (Tr. 39). She
testified that her medications make her lightheaded and sleepy. (Tr. 39).
The ALJ formulated a hypothetical question to the Vocational Expert (“VE”). (Tr.
41 – 43). It essentially limited the hypothetical person to light work, air conditioned work,
and no contact with the general public. (Tr. 42). The VE testified that the hypothetical
person could not perform any of Matters’s past relevant work. (Tr. 43). The VE further
testified that a hypothetical person that was so limited could perform jobs as a clerical mailer,
an optical goods assembler, and a semiconductor assembler. (Tr. 43, 44). The VE also
testified that if the ALJ found Matters to be 100 percent credible, then Matters would not be
able to perform those jobs because of posture and positioning “especially on the laying down
or the elevating of the feet.” (Tr. 44).
In his written decision, the ALJ found that Matters had severe impairments of obesity,
arthritis, degenerative disk disease, adjustment disorder, and conversion disorder. (Tr. 12 –
13). The ALJ found that these impairments did not meet or equal a listing impairment. (Tr.
13). Instead, the ALJ found that the claimant retained the Residual Functional Capacity
(“RFC”) to perform light work in an air conditioned environment with no more than
superficial contact with others. (Tr. 16 – 17). The ALJ then cited the Polaski factors and
Social Security Ruling 96-7p. (Tr. 17). The ALJ found Matters’s testimony to be
non-credible to the extent that it is inconsistent with the assessed RFC (Tr. 17), and the ALJ
found that Matters was not disabled based upon the VE’s testimony (Tr. 19 – 20).
II.

Discussion
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In reviewing a denial of disability benefits, the Court considers whether the ALJ’s
decision is supported by substantial evidence on the record as a whole. See Travis v. Astrue,
477 F.3d 1037, 1040 (8th Cir. 2007). “Substantial evidence is evidence that a reasonable
person might accept as adequate to support a decision.” Cox v. Barnhart, 245 F.3d 606, 608
(8th Cir. 2003).
A.

The ALJ’s Finding Matters’s Anxiety and Depression not Severe

The ALJ erred in finding Matters’s depression and anxiety not severe. An impairment
is not “severe” if it does not have a significant impact on an individual’s physical or mental
ability to do basic work activities. Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007).
“Severity is not an onerous requirement for the claimant to meet, but it is also not a toothless
standard....” Id. (internal citations omitted).
The ALJ’s decision did not discuss Matters’s anxiety and depression, noting only that
Matters “testified she found out she is ‘depressed’ when placed in a hospital center.” (Tr. at
17).

The ALJ did not specify that the hospitalization referred to was involuntary

hospitalization for Matters’s threats to kill her daughter, commit suicide, and self-mutilate,
or that Matters was then assessed a global assessment functioning score of 20. The ALJ did
not mention Matters’s voluntary hospitalization, in which she was observed with suicidal
thoughts and plans, diagnosed with depressive disorder and anxiety, and assessed a global
assessment functioning score of 30. The ALJ also did not address Matters’s consistent
diagnoses of depression and prescriptions for depression medication.
The ALJ did discuss opinions by Dr. Whisman, Dr. Keough, and Dr. Burstin
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suggesting that Matters had only slight to moderate mental health and behavior problems that
would not interfere with all substantial gainful employment. While the ALJ was free to
weigh those opinions against Matters’s treatment for depression, the ALJ was required to do
so explicitly. Prince v. Bowen, 894 F.2d 283, 286 (8th Cir. 1990). In any case, looking to
the record as a whole – including the severity of depression reflected by Matters’s
hospitalizations and the consistency with which treating physicians have diagnosed
depression in Matters – substantial evidence does not exist for a finding that Matters’s
depression is not severe under the Act.
B.

The ALJ’s Failure to Evaluate Matters’s Edema and Need to Elevate

The record reflects that Matters suffers from edema, or swelling in her feet and legs.
In March 2009, Dr. Gibbons diagnosed Matters with edema and instructed her to elevate her
feet above her heart three to four times a day. (Tr. at 304). Matters testified at her hearing
that she does elevate her feet above her heart four to five times a day, from thirty minutes to
an hour at a time, in an effort to reduce swelling. (Tr. at 35). Matters further testified that
she cannot stand for long enough to do a load of dishes and that it takes her about thirty
minutes to walk a block. (Tr. at 38-39).
The ALJ did not properly consider Matters’s edema in reaching his conclusion. The
Commissioner admits that the ALJ never discredited Dr. Gibbons’s recommendation. [Doc.
# 8 at 13]. In fact, the ALJ did not even mention the recommendation in his decision. Thus,
there is no evidence that the ALJ factored this limitation into his finding of Matters’s residual
functional capacity. The ALJ also did not mention this limitation in the hypothetical to a
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vocational expert that he relied on in finding there were jobs available to Matters in the
national economy.
The Commissioner argues that because Dr. Gibbons only made his recommendation
one time, and because other doctors on similar visits did not make the same recommendation,
that “it is reasonable to assume that Dr. Gibbon’s [sic] statement was not a continuing
recommendation.” [Doc. # 8 at 14]. The Court disagrees. When considering how an
impairment affects a claimant’s residual functional capacity, an ALJ “is required to consider
at least some supporting evidence from a professional.” See Baldwin v. Barnett, 349 F.3d
549, 556 (8th Cir. 2003) (citing another case in which “medical evidence was required to
establish how claimant’s heart attacks affected his RFC”). Dr. Gibbons provided his
instructions to Matters without limitation, Matters continues to be treated for the condition,
and Matters has continued to elevate to relieve her symptoms. There is no evidence on the
record that Matters’s edema has subsided and no medical opinions stating that elevation is
unnecessary. In light of this evidence, the negative inferences urged by the Commissioner
would not constitute substantial evidence for the Commissioner’s urged conclusion, even if
the ALJ in fact entertained them.
If Matters is required to elevate her feet, there is not substantial evidence for an ALJ
to conclude that she is not disabled. At Matters’s hearing, a vocational expert replied that
someone with the impairments in the ALJ’s hypothetical would have jobs available in the
national economy. But the same vocational expert opined that if the ALJ had found
Matters’s testimony “100 percent credible” that those same jobs would not be available
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“because of the posture or positioning. The individual would not be able to complete a
normal work day or work week because of having to miss time, especially on the laying
down or the elevating of the feet.” (Tr. at 44).
On remand, the ALJ must fulfill his duty to fully develop the record concerning
whether Matters is required to elevate her feet. See Nevland v. Apfel, 204 F.3d 853, 858 (8th
Cir. 2000).

Dr. Gibbons’s one-sentence recommendation does not provide enough

information to determine whether Matters is disabled. If Matters, in order to make it through
a workday, is and will continue to be required to elevate her feet four to five times a week,
then she may be disabled.
C.

The ALJ’s Discounting of Matters’s Credibility

The ALJ also erred in failing to properly explain why he discredited Matters’s
credibility. “If an ALJ explicitly discredits a claimant’s testimony and gives a good reason
for doing so, [the Court] will normally defer to that judgment.” Hogan v. Apfel, 239 F.3d
958, 962 (8th Cir. 2001). Here, the Court defers to the ALJ’s discrediting of Matters’s
complaints of pain, since the ALJ did so explicitly and stated that it was because Matters
failed to seek regular treatment for her pain and because debilitating pain was not consistent
with the X-rays in the record.
But the ALJ did not provide any particular reason for discrediting Matters’s testimony
about her limitations on mobility and restrictions on activity, such as her inability to wash
a load of dishes without having to lay down and rest. Further, in discrediting Matters’s
testimony about her mental limitations, the ALJ simply stated that he concurred with Dr.
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Burstin that Matters “is not precluded from all substantial gainful activity due to a ‘mental’
impairment.” (Tr. at 18). Without further explanation why this single conclusion from a
State Agency reviewing psychologist undermines Matters’s testimony – and all supporting
medical evidence on the record – the ALJ has not provided a “good reason” for the Court to
defer to his credibility determination. On remand, the ALJ is instructed to weigh all of the
evidence of Matters’s physical limitations and mental impairments and to explicitly state his
reason for discrediting Matters’s testimony.
III.

Conclusion
Accordingly, it is hereby ORDERED that Barbara Matters’s Petition [Doc. # 3] is

GRANTED. The decision of the ALJ is REVERSED and remanded for reconsideration
consistent with this Order.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: November 2, 2011
Jefferson City, Missouri

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