Brotherton v. Astrue

Filing 20

ORDER reversing the decision of the Commissioner and remanding for further consideration. Signed on January 27. 2014 by Magistrate Judge Robert E. Larsen. (Haydon, William)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
SHELLANE M. BROTHERTON,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN COLVIN, Acting Commissioner )
of Social Security,
)
)
Defendant. )

Case No. 4:12-cv-00460-REL-SSA

ORDER REVERSING THE DECISION OF THE COMMISSIONER AND REMANDING
FOR FURTHER CONSIDERATION
Plaintiff Shellane M. Brotherton seeks review of the final decision of the Commissioner
of Social Security denying plaintiff’s application for disability benefits under Titles II and XVI
of the Social Security Act (“the Act”). Plaintiff makes five arguments about the Administrative
Law Judge’s (ALJ) decision including the ALJ’s failure to consider all of the evidence, including
third party observations and information. Because the ALJ did not consider the third-party
observations, there is insufficient evidence to support her overall finding. Therefore, the
decision of the Commissioner will be reversed and this case will be remanded for further
consideration.
I.

BACKGROUND
On January 31, 2009, plaintiff protectively applied for disability benefits alleging that she

has been disabled since December 15, 2008 (Tr. 115-20, 121-26). 1 Plaintiff’s disability is due
to a combination of physical and mental impairments (Tr. 186-94). Plaintiff’s applications were
denied on May 6, 2009 (Tr. 64-68). On June 8, 2010, a hearing was held before the ALJ (Tr.
21-61). On September 3, 2010, the ALJ found that plaintiff was not under a “disability” as
1

At the June 8, 2010 hearing, plaintiff amended her alleged disability onset date to November 30, 2007
(Tr. 28-9).

defined in the Act (Tr. 6-16). On February 7, 2012, the Appeals Council denied plaintiff’s
request for review (Tr. 1-5). Therefore, the decision of the ALJ stands as the final decision of
the Commissioner.
II.

STANDARD FOR JUDICIAL REVIEW
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a “final

decision” of the Commissioner. The standard for judicial review by the federal district court is
whether the decision of the Commissioner was supported by substantial evidence. 42 U.S.C. §
405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Mittlestedt v. Apfel, 204 F.3d 847,
850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997); Andler v. Chater,
100 F.3d 1389, 1392 (8th Cir. 1996). The determination of whether the Commissioner’s
decision is supported by substantial evidence requires review of the entire record, considering the
evidence in support of and in opposition to the Commissioner’s decision. Universal Camera
Corp. v. NLRB, 340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir.
1989). “The Court must also take into consideration the weight of the evidence in the record
and apply a balancing test to evidence which is contradictory.” Wilcutts v. Apfel, 143 F.3d
1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities & Exchange Commission, 450 U.S.
91, 99 (1981)).
Substantial evidence means “more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,
402 U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th Cir. 1991). However, the
substantial evidence standard presupposes a zone of choice within which the decision makers can
go either way, without interference by the courts. “[A]n administrative decision is not subject to
reversal merely because substantial evidence would have supported an opposite decision.” Id.;

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Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).
III.

BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS
An individual claiming disability benefits has the burden of proving she is unable to

return to past relevant work by reason of a medically-determinable physical or mental
impairment which 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). If the plaintiff establishes that she is unable to
return to past relevant work because of the disability, the burden of persuasion shifts to the
Commissioner to establish that there is some other type of substantial gainful activity in the
national economy that the plaintiff can perform. Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir.
2000); Brock v. Apfel, 118 F. Supp. 2d 974 (W.D. Mo. 2000).
The Social Security Administration has promulgated detailed regulations setting out a
sequential evaluation process to determine whether a claimant is disabled. These regulations are
codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential evaluation process used by
the Commissioner is outlined in 20 C.F.R. § 404.1520 and is summarized as follows:
1.

Is the claimant performing substantial gainful activity?
Yes = not disabled.
No = go to next step.

2.
Does the claimant have a severe impairment or a combination of impairments
which significantly limits her ability to do basic work activities?
No = not disabled.
Yes = go to next step.
3.

Does the impairment meet or equal a listed impairment in Appendix 1?
Yes = disabled.
No = go to next step.

4.

Does the impairment prevent the claimant from doing past relevant work?
No = not disabled.
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Yes = go to next step where burden shifts to Commissioner.
5.

Does the impairment prevent the claimant from doing any other work?
Yes = disabled.
No = not disabled.

IV.

THE RECORD
The record includes testimony from plaintiff; Michael Leavely, plaintiff’s boyfriend; and

Amy L. Salva, a vocational expert. In addition, documentary evidence was admitted at the June
8, 2010 hearing.
B.

SUMMARY OF MEDICAL RECORDS
As summarized by plaintiff, the medical record reflects diagnosis and treatment of

multiple medical problems including history of repaired Tetralogy of Fallot; 2 pulmonary
regurgitation and right ventricular dilation with valve replacement and implantable cardioverter
defibrillator (ICD) implantation; syncopal episodes; obesity; mild obstructive sleep apnea;
lumbar muscle spasms; mood/bipolar disorder; and anxiety disorder.
C.

SUMMARY OF TESTIMONY
During the June 8, 2010 hearing, plaintiff testified; Michael Leavely, plaintiff’s

boyfriend, testified at plaintiff’s request; and Amy L. Salva, a vocational expert (Tr. 82), testified
at the request of the ALJ.
1.

Plaintiff’s Testimony
Plaintiff testified that she was born with two holes in her heart, the holes were patched

but are still leaking (Tr. 35). Plaintiff reported that, in 2007, she underwent replacement of her
pneumonic valve with a bovine prosthetic valve (Tr. 35). She also said that she had a

2

Tetralogy of Fallot is a congenital heart defect which is classically understood to involve four anatomical
abnormalities: pulmonary stenosis, overriding aorta, ventricular septal defect (VSD), and right ventricular
hypertrophy (Tr. 225-31).

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defibrillator inserted that had since “gone off” twice, and that she had to go to the emergency
room both times (Tr. 37-38). Plaintiff said she experiences episodes of passing out/syncope (Tr.
29-30), she tires very easily (Tr. 30), she naps daily for 30 to 45 minutes (Tr. 30), and she gets
real dizzy (Tr. 31).
As to her other medical conditions, plaintiff testified that she is being treated for a bipolar
disorder with severe symptoms including mood swings during which she becomes violent,
throws things, breaks things, screams, and hits people (Tr. 32). Plaintiff stated these episodes
occur about once a day (Tr. 39-40). Plaintiff testified that it takes her about 30 minutes to “cool
down” from these episodes (Tr. 40).
2.

Plaintiff’s Boyfriend’s Testimony
Plaintiff’s boyfriend, Michael Leavely, testified at plaintiff’s request. Mr. Leavely

reported he has known plaintiff for 12-13 years, and that they have lived together for three
years (Tr. 51). Mr. Leavely observed that, since plaintiff’s heart surgery in 2007, she cannot
stand for long, gets dizzy or lightheaded, and passes out (Tr. 52). Mr. Leavely related that
plaintiff can “snap” and quickly become abusive (Tr. 52); and that during these episodes
plaintiff has slapped him, elbowed him in the ribs, choked him, thrown cigarette packages,
broken dishes, and broken a towel holder (Tr. 52-53). In addition, Mr. Leavely recounted that
when he gets home, there are things that have not been done and he needs to do because
plaintiff cannot perform them (e.g., doing the dishes, picking up clothes, and washing and
drying the laundry (Tr. 54). Mr. Leavely also reported that he calls plaintiff frequently during
the day to check on her and to make sure she is okay with their daughter (Tr. 55-56).
3.

Vocational Expert’s Testimony
Vocational expert Amy L. Salva testified at the request of the ALJ. Pursuant to the

Dictionary of Occupational Titles (DOT), the expert classified plaintiffs past relevant work as

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semi-skilled or skilled and light (Tr. 57-8).
The expert was asked to assume a younger individual with a high school education,
plaintiff’s past relevant work experience, and a RFC for sedentary work but need to avoid
hazardous job environments such as being on ladders, ropes, and scaffolds, working at
unprotected heights, or working near open water; could not operate a motor vehicle or operate
any dangerous moving machinery; limited to simple, routine activities and job tasks with only
occasional changes to the work environment; and limited to only occasional interaction with
coworkers, i.e., primarily performing independent activities, not working as part of a team or
group, and definitely not interacting with the public as she had done in the past as a fast food
worker, bill collector, and customer service representative. With that assumption, the expert
stated that plaintiff would not be able to return to any of her past work but could perform
sedentary, unskilled jobs including circuit board assembler, optical goods assembler, and
document scanner (Tr. 58-59).
The expert testified that the three sample sedentary unskilled jobs she identified could
not be maintained if plaintiff fell asleep for as long as 30 minutes during the workday (Tr. 59).
The expert also opined plaintiff could not do any of the sedentary, unskilled jobs if she
“snapped” every time she got upset and had to “cool down” for 30 minutes (Tr. 59). The
expert indicated that employers would not tolerate the violent behavior and that plaintiff
would not be able to maintain competitive employment if she had to be away from work for 30
minutes to deal with her anger episodes (Tr. 59).
V.

FINDINGS OF THE ALJ
ALJ Debra Bice entered her opinion on September 3, 2010. The ALJ found that plaintiff

had not worked since November 30, 2007, the amended alleged disability onset date, The ALJ
found that plaintiff’s history of repaired Tetralogy of Fallot; pulmonary regurgitation and right
ventricular dilation with valve replacement and ICD implantation; syncopal episodes; obesity;
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mild sleep apnea; lumbar muscle spasms; mood disorder/bipolar disorder; and anxiety disorder
were severe impairments. The ALJ found no impairment that met or equaled the severity
requirements of a listed impairment in Appendix 1. The ALJ found that plaintiff retained the
RFC to perform less than a full range of sedentary work. The ALJ found that plaintiff was
unable to return to her past relevant work but could perform other jobs that exist in significant
numbers in the national economy. The ALJ concluded that plaintiff was not disabled.
VI.

CONSIDERATION OF LAY EVIDENCE
Plaintiff argues the ALJ’s decision is completely silent as to the testimony from

plaintiff’s boyfriend and the report from plaintiff’s friend.
In response, defendant argues that the ALJ did consider the testimony of plaintiff’s
boyfriend and arrived at exertional limitations consistent with that testimony; and although the
ALJ did not mention the friend’s report, one should not conclude that the ALJ failed to consider
that evidence. Defendant argues the friend’s statements did not need to be mentioned because
they were largely consistent with the ALJ’s conclusions about plaintiff’s abilities (e.g., the
limitation to sedentary work).
“It is the responsibility of . . . the disability hearing officer (DHO), the administrative
law judge (ALJ), or the Appeals Council (AC) member to identify the pertinent evidence from
medical and nonmedical reports and to make findings as to the individual's ability to perform
work-related activities (RFC). . . . To arrive at an overall assessment of mental impairment,
relevant, reliable, information, obtained from third party sources such as social workers,
previous employers, family members, and staff members of halfway house, mental health
centers, and community centers, may be valuable in assessing an individual’s level of activity
of daily living . . . . Descriptions and observations of the individual's restrictions by medical
and other sources (including Social Security Administration representatives, such as district

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office representatives and ALJs), in addition to those made during formal medical
examinations, must also be considered in the determination of RFC.” SSR 85-16.
The ALJ is obligated to consider third party information and observations. 20 C.F.R. §§
404.1513(d)(4).
Substantial evidence on the record as a whole requires taking into consideration
evidence that both supports and detracts from the ALJ’s decision. Craig v. Apfel, 212 F.3d 433,
436 (8th Cir. 2000). See Universal Camera v. NLRB, 340 U.S. 474, 488 (1951).
“Substantial evidence is less than a preponderance but is enough for a reasonable mind
to find it adequate to support the Commissioner’s conclusion.” Craig, 212 F. 3d at 436.
The ALJ must take into account any evidence that fairly detracts from the evidence that
may support his finding of fact. Cline v. Sullivan, 939 F. 2d 560, 564 (8th Cir. 1991); Delrosa
v. Sullivan, 922 F.2d 480, 484 (8th Cir. 1990); Fowler v. Bowen, 866 F.2d 249, 252 (8th Cir.
1989).
Evidence from non-medical sources is to be evaluated using factors such as the nature
and extent of the relationship to the plaintiff and whether the evidence is consistent with other
evidence of record. SSR 06-03p.
As noted above, Mr. Leavely testified at the June 2010 hearing. He described both
exertional and non-exertional limitations due to plaintiff’s physical and mental impairments
(Tr. 51-56). Alice F. Inch completed a Function Report Adult-Third Party on March 28, 2009.
A friend of plaintiff, Ms. Inch had known plaintiff for three years when she completed the
report, and had spent time with plaintiff every night (Tr. 166-74). Ms. Inch reported that
plaintiff would pass out if she stood for more than 30 minutes; plaintiff could only lift up to 20
pounds; plaintiff could not walk extensively; plaintiff tired easily; plaintiff was easily confused;
plaintiff had been prohibited from driving by her doctor for safety reasons; and plaintiff was
“moody,” easily distracted, and prone to cry. Ms. Inch related plaintiff’s ability to lift, squat,

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bend, stand, walk, kneel, remember, stair climb, follow instructions, and get along with others
– all have been affected by her medical problems. Ms. Inch reported that “if something goes
wrong, [plaintiff] stress[es] out big time” (Tr. 166-74).
Although the ALJ’s decision is not silent as to Mr. Leavely’s testimony (it notes the
boyfriend’s statements as to problems standing), it does not discuss Mr. Leavely’s testimony
about plaintiff’s dizziness, lightheadness, or syncope. More importantly, the decision did not
address plaintiff’s violent behavior. This is important because the vocational expert testified
that employers would not tolerate such behavior and that plaintiff would not be able to
maintain competitive employment if she had to be isolated for 30 minutes after an anger
episode.
Although the ALJ’s decision limits plaintiff to less than a full range of sedentary work, it
does not address Ms. Inch’s statements alleging more severe exertional limitations for plaintiff
or the corroboration she provides about plaintiff’s emotional problems. Again, the vocational
expert testified that violent behavior and a need for a 30-minute period of isolation to deal
with anger would preclude performance of the three identified jobs.
The ALJ found plaintiff’s testimony about these anger episodes was not credible.
Because consideration of Mr. Leavely’s testimony and Ms. Inch’s report support plaintiff’s
testimony, I am sending the case back to the ALJ to specifically consider this evidence and
determine of what, if any, effect it has on her decision.
VII.

CONCLUSIONS
Based on all of the above, I find that the substantial evidence in the record as a whole

does not support the ALJ’s decision finding plaintiff not disabled. Therefore, it is
ORDERED that plaintiff’s motion for summary judgment is granted. It is further
ORDERED that the decision of the Commissioner is REVERSED and this case is
REMANDED pursuant to 42 U.S.C. Section 405(g), sentence four, so the ALJ may consider the
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weight to be given the lay sources.

/s/ Robert E. Larsen
ROBERT E. LARSEN
United States Magistrate Judge
January 27, 2014
Kansas City, Missouri

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