Smith v. Saul
ORDER AND OPINION REVERSING COMMISSIONER'S FINAL DECISION DENYING BENEFITS AND REMANDING FOR FURTHER PROCEEDINGS. Signed on 2/17/21 by Magistrate Judge W. Brian Gaddy. (Kitsmiller, Julia)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ANDREW M. SAUL,
Commissioner of Social Security,
Case No. 19-03341-CV-S-WBG
ORDER AND OPINION REVERSING COMMISSIONER’S FINAL DECISION
DENYING BENEFITS AND REMANDING FOR FURTHER PROCEEDINGS
Pending is Plaintiff Je’ri Smith’s appeal of Defendant Commissioner of Social Security’s
final decision denying her application for supplemental security income. For the following
reasons, the Commissioner’s decision is REVERSED, and the case is REMANDED for further
Plaintiff was born in 1970, has a ninth-grade education, and previously worked as a
certified medication technician and home attendant. R. at 23, 43, 45-47, 66, 223, 225, 243, 250.
In September 2016, Plaintiff applied for supplemental security income claiming she became
disabled on July 9, 2016. R. at 225-30. Her application was denied, and she requested a hearing
before an administrative law judge (“ALJ”). R. at 150-57, 160-62.
In December 2018, a hearing was held before ALJ Mary J. Leary. R. at 36-73. On March
11, 2019, the ALJ issued her decision, finding Plaintiff was not disabled. R. at 10-25. The ALJ
concluded Plaintiff had the following severe impairments: “history of degenerative disc disease of
the lumbar spine, spinal stenosis, cervical osteoarthritis with radiculopathy, and cervical kyphosis;
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SLAP lesion of the right shoulder; peripheral neuropathy; bipolar disorder; generalized anxiety
disorder; posttraumatic stress disorder[;] dependent personality disorder; and cannabis
dependence.” R. at 12. The ALJ determined Plaintiff had the residual functional capacity (“RFC”)
to perform light work, as defined in 20 C.F.R. § 416.967(b), except Plaintiff also was limited to
occasionally climb ramps and stairs, but never climb ladders, ropes, or scaffolds;
occasionally balance, stoop, kneel, crouch, and crawl; should avoid concentrated
exposure to extreme cold, vibration, and hazards such as dangerous machinery and
unprotected heights; occasional reaching overhead with right upper extremity; is
able to understand, remember, and carry out simple instructions consistent with
routine, repetitive unskilled work at SVPl and SVP2; can tolerate occasional
contact with coworkers and supervisors, but no contact with the general public, in
a setting where she can complete tasks relatively independently; can perform simple
decision-making related to basic work functions, and can tolerate minor, infrequent
changes within the workplace; and would likely be off task 5 percent of the work
R. at 15.
As set forth in her decision, the ALJ asked a vocational expert (“VE”) during the December
2018 hearing if jobs existed in the national economy for an individual with Plaintiff’s age,
education, work experience, and the above-identified RFC. R. at 24, 66-68. The VE testified such
an individual could not return to Plaintiff’s past relevant work but would be able to work as a
swatch clerk, packing header, and blade balancer. R. at 23-24, 67-68. The ALJ then asked if the
same hypothetical person would be able to work if she was off task fifteen percent of the time. R.
at 70. The VE stated an individual persistently off task fifteen percent of the time would not able
to sustain employment. Id. Finally, the ALJ inquired if the same hypothetical individual could
sustain employment if the individual had to miss work at least one day per month. R. at 70-71.
The VE testified such an individual would not able to sustain employment. R. at 71.
Based upon her review of the record, her RFC determination, and the VE’s hearing
testimony, the ALJ determined Plaintiff could work as a swatch clerk, packing header, and blade
Case 6:19-cv-03341-WBG Document 18 Filed 02/17/21 Page 2 of 11
balancer. R. at 24. The ALJ found Plaintiff was “not disabled.” R. at 24. Plaintiff appealed the
ALJ’s decision to the Social Security Administration’s Appeals Council, which denied her
appeal. R. at 1-3. Plaintiff now appeals to this Court. Doc. 3.
STANDARD OF REVIEW
This Court must affirm the Commissioner’s decision “if substantial evidence in the record
as a whole supports [the] decision.” Hilliard v. Saul, 964 F.3d 759, 761-62 (8th Cir. 2020) (citation
omitted). “Substantial evidence is less than a preponderance, but enough that a reasonable mind
would find it adequate to support a conclusion.” Noerper v. Saul, 964 F.3d 738, 744 (8th Cir.
2020) (citation omitted). If substantial evidence supports the Commissioner’s decision, this Court
may not reverse the Commissioner’s decision if substantial evidence also “would have supported
a contrary outcome,” or this Court “would have decided the case differently.” Cline v. Colvin, 771
F.3d 1098, 1102 (8th Cir. 2014) (citation omitted).
Plaintiff argues this matter should be remanded because the ALJ erred in affording little
weight to her treating mental health provider’s opinion, improperly relied on a state agency
psychological consultant’s opinion, failed to properly account for Plaintiff’s mental limitations,
and did not cite sufficient evidence to support the RFC.1
Weight Afforded to Medical Opinions
The record includes two opinions about Plaintiff’s mental limitations. One opinion was
given by a state agency psychological consultant, J. Edd Bucklew, Ph.D., and the other opinion
was provided by Plaintiff’s treating therapist, Jennifer Hollis, LCSW, MSW.
Plaintiff’s appeal to this Court solely concentrates on her mental limitations and does not raise
any issue regarding the physical limitations in the ALJ’s RFC.
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Edd Bucklew, Ph.D.
In January 2017, Dr. Bucklew, a state agency psychological consultant, provided his
opinion on Plaintiff’s mental RFC. R. at 145-46. Based solely on his review of Plaintiff’s medical
records, Dr. Bucklew opined Plaintiff was moderately limited2 with regard to carrying out detailed
instructions; maintaining attention and concentrating for extended periods; working in
coordination with or in proximity to others without being distracted by them; interacting with the
general public; getting along with coworkers without distracting them or exhibiting behavioral
extremes; and responding appropriately to changes in the work setting. Id. Dr. Bucklew also
determined Plaintiff was moderately limited in her ability to complete a normal workday and
workweek without interruption from psychological symptoms but found Plaintiff could work if
she was “limited to less complex tasks.” Id. In all other respects, Dr. Bucklew found Plaintiff was
not significantly limited. Id.
The ALJ afforded “significant weight” to Dr. Bucklew’s opinion because “he has a
thorough amount of understanding of the disability program and the evidentiary requirements and
is familiar with the other information in a claimant’s case record.” R. at 20-21. The ALJ also
noted Dr. Bucklew’s opinion was “supported by the objective clinical findings and medical
treatment notes.” R. at 21. Although not mentioned by the ALJ, Dr. Bucklew’s opinion, which
was rendered nearly two years before the hearing in this matter, was based on limited medical
The term “moderately limited” is not defined in Dr. Bucklew’s report.
It appears Dr. Bucklew’s opinion on Plaintiff’s mental RFC was based on medical records prior
to the alleged disability onset date (July 9, 2016) and, at most, five mental health records between
July 9, 2016, and December 15, 2016. R. at 139-40, 145-46.
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Jennifer Follis, LCSW, MSW
From September 2016 through December 2018, Jennifer Follis, LCSW, MSW, provided
therapy to Plaintiff. R. at 21, 343-62, 374-78, 419-22, 639-44, 656-67, 673-88, 695-99, 824-27,
839-46, 1212-16. In April 2018, Follis executed a Medical Source Statement – Mental (“MSS”)
for Plaintiff. R. at 766-67. Based on her clinical findings, diagnoses,4 and treatment of Plaintiff,
Follis opined Plaintiff’s ability to work in coordination with or proximity to others without being
distracted by them was “extremely limited.”5 Id. In addition, Follis found Plaintiff was “markedly
limited”6 in her ability to understand, remember, and carry out instructions; maintain attention and
concentration for extended periods; perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances; complete a normal workday and
workweek without interruption from psychological symptoms; respond appropriately to changes
in the work setting; and set realistic goals or make plans independently of others. Id.
Follis also determined Plaintiff was “moderately limited”7 in her ability to remember
locations and work-like procedures, sustain an ordinary routine without special supervision, ask
simple questions or request assistance, accept instructions and respond appropriately to criticism
from supervisors, and travel to unfamiliar places or use public transportation. Id. In Follis’s
Follis identified Plaintiff’s diagnoses as bipolar disorder, post-traumatic stress disorder, and
generalized anxiety disorder. R. at 766.
In the MSS, “extremely limited” is defined as “[i]mpairment level precludes useful functioning
in this category. Considered to be 3 standard deviations below the norm, or 90% overall reduction
in performance.” R. at 766.
In the MSS, “markedly limited” is considered “[m]ore than Moderate, but less than extreme
resulting in limitations that seriously interfere[ ] with the ability to function independently.
Considered to be 2 standard deviations below the norm, or 60% overall reduction in performance.”
R. at 766.
In the MSS, “moderately limited” means “[i]mpairment levels are compatible with some, but not
all, useful functioning. Considered to be 1 standard deviation below the norm, or 30% overall
reduction in performance.” R. at 766.
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opinion, Plaintiff’s mental conditions would cause her to miss at least four days of work per month,
and she would likely be “off task” at least twenty-five percent of the time due to her mental health
The ALJ afforded “little weight” to Follis’s opinion because Follis did not make a “function
by function assessment” of Plaintiff’s mental RFC, Follis’s treatment notes and other treating
providers’ records do not support the “severe level of dysfunction” opined by Follis, and the record
showed Plaintiff engaged in “normal activities of daily living.” R. at 21. As a social worker, Follis
is not considered an “acceptable medical source” under the Social Security regulations. 20 C.F.R.
§ 404.1502(a). Nevertheless, the ALJ was required to consider Follis’s opinion “using the same
factors” that are utilized when evaluating an opinion from an acceptable medical source. §
404.1527(f)(1). That is, when evaluating Follis’s opinion, the ALJ was required to consider the
examining relationship; treatment relationship (including length of relationship, frequency of
examination, and the nature and extent of the treatment relationship); supportability; consistency;
and specialization. § 404.1527(c).8 The ALJ purportedly considered whether Follis’s opinion was
supported and consistent with the record. See R. at 21. But the other factors, particularly Follis’s
examining relationship, treatment relationship, and specialization, are absent from the ALJ’s
discussion of Follis’s opinion. Id.
In addition, the bases for the ALJ discounting Follis’s opinion are not supported by the
record. First, the ALJ indicated Follis failed to provide a function-by-function analysis. R. at 21.
The regulations anticipate the possibility that, “an opinion from a medical source who is not an
acceptable medical source . . . may outweigh the medical opinion of an acceptable medical
source . . . . ” 20 C.F.R. § 404.1527(f)(1). The regulations further advise, “it may be appropriate
to give more weight to the opinion of a medical source who is not an acceptable medical source if
he or she has seen the individual more often than the treating source, has provided better supporting
evidence and a better explanation for the opinion, and the opinion is more consistent with the
evidence as a whole.” Id.
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But Follis expressly opined on Plaintiff’s ability to, among other things, understand, remember,
and carry out instructions, and respond to supervisors, coworkers, and work pressures. R. at 76667.9 When determining a person’s mental RFC, the ALJ is to “assess the nature and extent of your
mental limitations and restrictions.” 20 C.F.R. § 404.1545(c). Mental limitations pertain to
“understanding, remembering, and carrying out instructions, and in responding appropriately to
supervision, co-workers, and work pressures in a work setting.” Id. Thus, Hollis’s opinion
addressed the functions the ALJ was required to assess when determining Plaintiff’s mental RFC.
Second, contrary to the ALJ’s finding, Follis’s treatment notes support her opinion.
Follis’s notes reveal Plaintiff would experience some improvement in symptoms but her
symptoms, at times, would worsen. Follis frequently noted Plaintiff’s stress, anxiety, panic, and
sadness had increased; she needed a medication adjustment; her affect reflected anxiety and
sadness; she had increased mood swings; her nightmares were more frequent; and she had
difficulties with eating and/or sleeping. See R. at 353-56, 374, 420, 639, 656, 673, 824, 839, 843,
In addition, at least one other medical provider’s treatment records are fully consistent with,
and support, Follis’s opinion. From September 2016 through October 2018, Plaintiff was seen on
ten occasions by Dr. Angela Olomon, a psychiatrist. At each appointment, Dr. Olomon made at
least one (and oftentimes, many) of the following observations about Plaintiff: thought process
was slow and concrete, thought content was obsessive, remote memory was poor, mood was
dysphoric and anxious, affect was blunted and flat, thought process was rapid and ruminative, and
speech was pressured. See R. at 332-36, 348-52, 363-67, 606-10, 628-33, 668-72, 705-09, 781-
Follis specifically assessed three function categories related to understanding and memory, eight
function categories related to sustained concentration and persistence, five function categories
related to social interaction, and four function categories related to adaptation. R. at 767.
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84, 789-92, 835-38. Dr. Olomon’s observations, however, are not referenced by the ALJ. See R.
Instead, to discount Follis’s opinion, the ALJ pointed to a medical record from 2016, two
medical records from 2017, and a few medical records from 2018. R. at 21. Three cited medical
records seem to indicate improved symptoms. The July 9, 2016 medical record cited by the ALJ,
however, involved Plaintiff’s emergency room visit for abdominal pain and nausea. R. at 728. It
was during the “physical” examination that Plaintiff was observed as having a “normal mood and
affect.” R. at 729. Regarding the remaining records cited by the ALJ, it is unclear which particular
records she cited. This is because the ALJ referred to three exhibits in their entirety. R. at 21.
While one exhibit is only thirteen pages (C17F), the other two exhibits (C13F and C11F) are 159
pages and 85 pages, respectively. Regardless, these medical records span over more than two
years and do not establish Plaintiff’s mental limitations are significantly less restrictive than the
limitations opined by Follis.
The ALJ selectively choosing medical records to support her decision to discount Follis’s
opinion is particularly troublesome given Plaintiff’s severe mental health impairments. When a
claimant suffers from mental disorders, as is the case here,10 the Eighth Circuit directs Defendant
to “take into account evidence indicating that the claimant’s true functional ability may be
substantially less than the claimant asserts or wishes.” Hutsell v. Massanari, 259 F.3d 707, 711
(8th Cir. 2001) (citation and quotation omitted). “Given the unpredictable course of mental illness,
‘[s]ymptom-free intervals and brief remissions are generally of uncertain duration and marked by
the impending possibility of relapse.’” Id. (quoting Andler v. Chater, 100 F.3d 1389, 1393 (8th
The ALJ concluded Plaintiff’s severe mental impairments are bipolar disorder, generalized
anxiety disorder, posttraumatic stress disorder, and dependent personality disorder. R. at 12.
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Cir. 1996)). While Plaintiff had days or periods of time where her mental health symptoms were
less severe, the record demonstrates her symptoms oftentimes were worse than the ALJ suggested.
Finally, the ALJ afforded little weight to Follis’s opinion because Plaintiff engaged in
normal daily activities. R. at 21. The ALJ pointed to Plaintiff caring for three children and being
“alone” when “her boyfriend was gone for two weeks at a time working.” Id.11 The record
includes three instances (between April 2018 and December 2018) where Plaintiff mentioned she
helped take care of three kids, who were relatives of a friend. R. at 824, 839, 1212. During the
hearing, Plaintiff testified the kids would “occasionally . . . come over and spend the night.” R. at
53-54. Infrequently taking care of three kids – without knowing any information as to what that
care entails – does not demonstrate normal daily activities.
Regarding the reference to Plaintiff being alone for two weeks at a time while her boyfriend
worked, the ALJ points to one record – a clinic progress note from February 2017 wherein Plaintiff
indicated her “sadness and anxiety are due to her boyfriend getting a new job and being gone 2
weeks at a time.” R. at 17, 709. But the record does not establish Plaintiff was home alone during
that time, and if so, whether she was able to care for herself and/or received assistance from others.
Moreover, Plaintiff testified at the hearing that she and her boyfriend no longer lived together. R.
at 50. Thus, it is unclear why Plaintiff’s boyfriend’s absence – at least since the time of the hearing
– was relevant to the severity of her limitations. Additionally, the ALJ did not consider that
Earlier in her decision, the ALJ pointed out Plaintiff’s “leisure activities include reading and
arrowhead hunting.” R. at 20. But the record cited by the ALJ establishes Plaintiff “can’t read for
more than 15 minutes” and “quit arrowhead hunting [because she] can’t walk that far or look down
that long.” R. at 264. Additionally, during the hearing, Plaintiff testified she had not been
arrowhead hunting in at least three years. R. at 50. She also testified she had not read “in months.”
R. at 49. Similarly, the ALJ stated Plaintiff can “travel independently [and] go shopping.” R. at
20. But that activity is limited and exacerbates Plaintiff’s condition; Plaintiff stated she drove
short distances once a week, and although she can go out alone, “it causes anxiety.” R. at 263.
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Plaintiff, who suffers from mental illness, may structure her life “in such a way as to minimize
stress and reduce [her] signs and symptoms.” Hutsell, 259 F.3d at 711 (citation omitted).
Upon remand, the ALJ must consider the examining relationship that Follis had with
Plaintiff; the treatment relationship (including length of relationship, frequency of examination,
and the nature and extent of the treatment relationship); the supportability and consistency of
Follis’s opinion; and Follis’s specialization. After considering these factors, the ALJ must set
forth good reasons for the weight afforded to Follis’s opinion.12 If, on remand, the ALJ chooses
to rely again on Dr. Bucklew’s opinion when reaching her decision, the ALJ shall provide authority
for relying on a medical opinion based on limited medical evidence and rendered more than two
years before the ALJ issued her decision, and how that opinion constitutes substantial evidence.
Furthermore, if the ALJ decides to afford greater weight to Dr. Bucklew’s opinion than the weight
she affords Follis’s opinion, the ALJ must cite those portions of the record establishing Dr.
Bucklew’s opinion is “supported by better or more thorough medical evidence.” Cantrell v. Apfel,
231 F.3d 1104, 1107 (8th Cir. 2000) (citations omitted).
The ALJ’s RFC
In a related argument, Plaintiff contends the ALJ’s RFC should have included greater
limitations in mental functioning.
One’s RFC is the “most you can still do despite your
limitations.” 20 C.F.R. § 404.1545(a)(1). The ALJ must base the RFC on “all of the relevant
evidence, including the medical records, observations of treating physicians and others, and an
individual’s own description of his limitations.” McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.
2000). Because Plaintiff’s RFC is a medical question, “an ALJ’s assessment of it must be
If, on remand, the ALJ relies on Plaintiff’s daily activities to discount a medical opinion, the
ALJ must address the extent of and limitations to those activities.
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supported by some medical evidence of [Plaintiff’s] ability to function in the workplace.” Hensley
v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016) (citation omitted). “However, there is no requirement
that an RFC finding be supported by a specific medical opinion.” Id.
As best the Court can discern, the ALJ’s RFC is based solely on Dr. Bucklew’s opinion.
In addition to Dr. Bucklew’s opinion being based on limited medical evidence, Dr. Bucklew was
a non-examining consultant. As such, his opinion cannot constitute substantial evidence. See
Harvey v. Barnhart, 368 F.3d 1013, 1016 (8th Cir. 2004) (stating “the opinion of a non-examining
consulting physician” is “not ‘considered substantial evidence in the face of the conflicting
assessment of a treating physician.’”) (citation omitted); Laurer v. Apfel, 245 F.3d 700, 705 (8th
Cir. 2001) (finding the opinion of a consulting physician who examines a claimant once generally
“is not considered substantial evidence, especially if, as here, the treating physician contradicts the
consulting physician’s opinion.”) (citation omitted). Because the ALJ’s RFC appears to be based
solely on Dr. Bucklew’s opinion, the RFC is not supported by substantial evidence. Upon remand,
the ALJ must set forth an RFC that accurately reflects Plaintiff’s limitations and shall identify the
medical evidence supporting those limitations. The medical evidence cannot consist of a nonexamining consultant’s opinion.
For the foregoing reasons, the Court finds the substantial evidence in the record as a whole
does not support the ALJ’s decision. Accordingly, the Commissioner’s decision is reversed, and
the matter is remanded for further proceedings consistent with this Order.
IT IS SO ORDERED.
DATE: February 17, 2021
/s/ W. Brian Gaddy
W. BRIAN GADDY
UNITED STATES MAGISTRATE JUDGE
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