Farringer v. Astrue
MEMORANDUM AND ORDER - The Commissioners decision is reversed. This matter is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for calculation and award of benefits. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MEMORANDUM AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
This matter is before the Court on the denial, initially and upon
reconsideration, of plaintiff Ashley Farringer's disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. The Court has
considered the parties' filings and the administrative record, and reverses the
Commissioner's decision to deny benefits. The Court will remand this case to
the Commissioner for calculation and award of benefits.
Farringer applied for disability insurance benefits in January 2011,
alleging disability beginning on August 25, 2010. T134-35. Farringer's claims
were denied initially and on reconsideration. T71-74, 79-82. Following a
hearing, the administrative law judge (ALJ) found that Farringer was not
disabled as defined under 42 U.S.C. §§ 416(i) or 423(d), and therefore not
entitled to disability benefits. The ALJ determined that although Farringer
suffered from several severe impairments, and could no longer perform her
past relevant work, she had the residual functional capacity to perform other
jobs that exist in significant numbers in the national economy. T6-21. The
Appeals Council denied Farringer's request for review of the decision. T1-4.
Farringer's complaint seeks review of the ALJ's decision as the final decision
of the Commissioner under sentence four of 42 U.S.C. § 405(g). Filing 1.
Farringer suffers from a number of diagnosed physical and mental
conditions. The record contains extensive evidence of Farringer's medical
treatment and evaluation; that record has been fully reviewed, but only the
particularly relevant portions will be summarized below.
Farringer has, at various times, been in the Naval Reserve and served
on active duty in Kuwait and Iraq. T316. She was involved in conflicts with
other soldiers and her superiors, the details of which are unnecessary to the
Court's disposition of this case. See T316-18.
Farringer was seen for a psychiatric consultation at the Lincoln,
Nebraska Department of Veterans Affairs (VA) hospital on November 12,
2009. T316. Her psychiatrist, Ahsan Naseem, M.D., diagnosed her with an
anxiety disorder. T316. On May 18, 2010, Naseem changed that diagnosis to
posttraumatic stress disorder (PTSD). T316. At a mental health consultation
in July 2010 with VA staff psychiatrist Dr. Mary Jo Hanigan, Farringer
reported moderate to severe symptoms of PTSD. T317. She expressed feelings
of depression and anxiety, and reported social isolation and distrust. T317.
She said she had service-related nightmares two to three times per week.
T317. Farringer also said she had been following up with Naseem, although
notes from that treatment are not in the record before the Court.1 T318.
Farringer told Hanigan she frequently had to call in sick to her job as a
customer service representative, or had to work "'in the back of the store'"
because of anxiety or paranoia. T318. Hanigan noted that while Farringer
had "been able to attain and maintain gainful employment at this point . . .
as her symptoms persist she is in jeopardy of compromising her occupational
function because of the irritability, the paranoia and the pronounced
anxiety." T319. Hanigan's preliminary diagnosis was also PTSD. T319.
In a letter to the Nebraska Veteran Service Office dated September 13,
2010, Naseem opined that it was "unlikely that [Farringer] could sustain
fulltime employment at this time" and that it was at least as "likely as not
that she will continue to remain permanently and totally disabled." T604.
Naseem explained that Farringer exhibited
severe continuing PTSD symptoms that impose on her daily life
activities. She suffers occupational and social impairment with
deficiencies in most areas such as work, judgment, thinking and
mood. She experiences near-continuous panic and depression that
affects her ability to function independently, appropriately, and
effectively. She has difficulty adapting to stressful situations
which, on occasion, creates episodes of unprovoked irritability
The record reflects a number of VA medical appointments that occurred, but for which no
treatment notes are available. T293-306, T26-27. The Court notes the existence of these
appointments solely to the extent that Naseem's familiarity with Farringer reflects on his
credibility as her treating psychiatrist.
and periods of violence. Her isolative and withdrawn behavior
has affected her ability to establish and maintain effective
relationships, which created a severe hardship in conducting her
T604. Naseem concluded that Farringer's symptoms were "chronic and her
condition is not expected to change due to her psychological state." T604.
Farringer saw Naseem again at a scheduled appointment on January 5,
2011. T380. Naseem noted increased stress due to gastrointestinal illness.
T380. Farringer saw Amber L. Kutayli, Ph.D., at the VA hospital on January
7 for individual psychotherapy, and reported increased depression and
anxiety, exacerbated by her physical illness. T379. On January 11, Naseem
saw Farringer again, assessed her condition as chronic PTSD, and prescribed
medications and continued individual therapy with Kutayli. T373-74. The
next day, a VA staff physician diagnosed Farringer with gastroesophageal
reflux disease, and a chronic cough that was probably secondary to the reflux
disease. T376. Farringer continued to see Kutayli, whose treatment notes
generally reflect ongoing stress, anxiety, and depression, although some
weeks were better than others. T371, T369, T339, T326, T562, T559-60.
In March 2011, Farringer was also diagnosed with fibromyalgia. T32122. She also completed two questionnaires at the request of the state
disability examiner, answering a series of detailed questions about her daily
activities. T150-51. Farringer reported that she started a typical day with a
"few hours getting ready"; she explained that her medications made her
groggy so it took her some time to get moving. T153. Her household chores
included taking care of pets and other tasks split with her roommate, such as
30 minutes doing dishes, 20 minutes of sweeping, and laundry only if her
roommate couldn't do it, because the washer and dryer were upstairs. T153.
She said she had a hard time coming down stairs. T154. She said that she
sometimes went a few days without a shower or a "real meal" if she was
depressed or her stomach was bothering her. T153. For food, she could make
simple things like canned goods, a sandwich, or cereal. T153.
Farringer said she could drive a car, but for no more than 90 minutes
because of anxiety and body aches. T153. Her errands were limited to a
couple of doctor's appointments a week, a weekly trip to the grocery store,
and miscellaneous unplanned errands. T154. Her hobbies were several hours
of painting, coloring, and writing and research a week, and a couple of hours
of television per day. T154. She also volunteered at a local cat shelter on
Saturday mornings and sometimes visited friends and family, although that
was limited by anxiety. T154. She said she had to give up working because
she suffered panic attacks working with the public and because it required
her to stand up to 10 hours a day. T156.
Farringer reported sleeping about 9 hours a night, but not straight
through because of nightmares. T154. She could only walk for about 30
minutes at a time without having to stop due to pain. T154. But sitting also
got uncomfortable after about 90 minutes. T154. Farringer described her
symptoms as including anxiety, depression, joint disease, migraines, chronic
cough, and reflux disease. T155. She said that she felt tired and worn down
most of the day. T155.
Farringer was seen for a consultative physical examination on May 27,
2011, by Paul Kolkman, M.D. T434. Kolkman's "impressions" were that
Farringer had possible fibromyalgia and likely PTSD with anxiety. T439.
Farringer's physical residual functional capacity (RFC) was assessed by Jerry
Reed, M.D. and Arthur Weaver, D.O., who found some limitations imposed by
possible fibromyalgia. T443-50, T590-98. Specifically, in September 2011,
Weaver found that Farringer could occasionally lift up to 20 lbs., frequently
lift only up to 10 lbs., and could sit or stand with normal breaks for about 6
hours in an 8-hour workday. T591. And Weaver opined that Farringer should
avoid even moderate exposure to extreme cold. T594.
Farringer continued to see Kutayli and Naseem for mental health
treatment, and the symptoms reflected in their notes remained largely the
same. T559-62, T549-54, T660, T650, T627, T619. Farringer's mental RFC
was assessed by Lee Branham, Ph.D. in September 2011, who found
Farringer to have moderate limitations in her ability to work in coordination
with or proximity to others without distraction, interact appropriately with
the general public, and accept instructions and respond appropriately to
criticism from supervisors. T570-71. Branham found no other significant
limitations. T570-71. Branham found that Farringer was mildly limited in
her activities of daily living and maintaining concentration, persistence, or
pace; and moderately limited in maintaining social functioning. T585.
On December 5, 2011, Naseem, as Farringer's treating psychiatrist,
completed a mental impairment questionnaire. T672. Naseem identified
Farringer's symptoms as including appetite disturbance, sleep disturbance,
mood disturbance, emotional lability, social isolation or withdrawal,
decreased energy, psychomotor agitation or retardation, feelings of guilt or
worthlessness, difficulty thinking or concentrating, and intrusive
recollections of a traumatic experience. T666-67. He opined that Farringer's
psychiatric condition exacerbated her experience of physical symptoms,
because PTSD can induce restlessness, insomnia, and fatigue, which can in
turn exacerbate chronic pain. T668.
Naseem opined that Farringer's impairments would cause her to be
absent from work more than three times a month (which was the maximum
answer available on the questionnaire). T669. Naseem also opined that
Farringer had a good or unlimited ability to understand and remember short
and simple instructions and carry them out, sustain an ordinary routine
without special supervision, make simple work-related decisions, ask simple
questions and request assistance, and be aware of normal hazards and take
appropriate precautions. T669-70. But Farringer had only a fair ability to get
along with coworkers or peers without unduly distracting them or exhibiting
behavioral extremes. T670. And Farringer had no useful ability to remember
work-like procedures, maintain attention for a 2-hour segment, maintain
regular attendance and be punctual within customary (usually strict)
tolerances, work in coordination with or proximity to others without being
unduly distracted, complete a normal workday and workweek without
interruptions from psychologically based symptoms, perform at a consistent
pace without an unreasonable number and length of rest periods, accept
instructions and respond appropriately to criticism from supervisors, respond
appropriately to changes in a routine work setting, or deal with normal work
stress. T669-70. Naseem explained that Farringer had cognitive limitations,
remained severely socially avoidant, was guarded in the proximity of others,
and experienced severe symptoms when challenged. T670.
Naseem further opined that while Farringer had a fair ability to set
realistic goals or make plans independently of others, Farringer had no useful
ability to understand and remember detailed instructions or carry them out,
or deal with the stress of semiskilled and skilled work. T671. Naseem
explained that Farringer had experienced severe setbacks when exposed to
even limited stress. T671. She could not function well in unfamiliar
surroundings. T671. Her gastrointestinal symptoms would also create a
severe compromise, and exposure to loud sounds would trigger a severe
startle reaction. T671. Farringer was, according to Naseem, moderately
limited in her activities of daily living and maintaining social functioning;
markedly limited in maintaining concentration, persistence or pace; and had
four or more episodes of decompensation of extended duration.2 T671-72.
Episodes of decompensation are exacerbations or temporary increases in symptoms or
signs accompanied by a loss of adaptive functioning, as manifested by difficulties in
performing activities of daily living, maintaining social relationships, or maintaining
concentration, persistence, or pace. 20 C.F.R. Part 404, Subpart P, Appx. 1, § 12.00C. The
term "[r]epeated episodes of decompensation, each of extended duration" means at least
three episodes within 1 year, or an average of once every 4 months, each lasting for at least
2 weeks. Id.
Farringer's testimony at the hearing before the ALJ was generally
consistent with her responses to the earlier disability questionnaires. Asked
to describe a typical day, Farringer said she woke up
anywhere from seven to noon, seven in the morning to noon, and
I will eat breakfast and take my medication. I usually do some
household chores, light household chores. I'll watch a little
television and then maybe go run some light errands. I don't ever
go anywhere alone. I'll probably take a nap in the afternoon. Most
days I do that because I don't get enough sleep at night. I usually
switch positions throughout the day, whether I'm standing, lying
down or sitting because I can't usually find a comfortable
position. I'll eat dinner around six-ish. My appetite's there and
then I'll try to go to, I'll watch a little T.V. after that, maybe read
a book, try to go to bed around 9:30 then I'll wake up every couple
T35-36. Farringer said her roommate primarily made meals and performed
most household chores, although Farringer sometimes loaded the
dishwasher, swept the floors, and paid bills. T36. Farringer's roommate did
most of the grocery shopping. T37. Farringer said that she could drive to the
gas station but did not pump the gas. T37. When asked where she went when
she left the house, Farringer replied,
I will go to like my doctor's appointments or to pick up like little
things from the grocery store, like a donut in the morning maybe,
if I'm hungry. I'll go get like, Christmas presents but I like to go
usually when it's not busy, early in the morning or late at night.
T37. She went to Wal-Mart for Christmas presents. T37. But most of her
shopping was done online. T37. She said that she didn't have many friends
anymore, so social occasions were mainly limited to "a major family event or
something like that." T37. She saw her family on "[b]ig family holidays and
maybe once or twice a month." T38. She had a few friends that might come by
and visit once or twice a week "in a good month." T38.
Farringer said that she sometimes left home with her roommate, to "go
to a movie or something like that," but not frequently. T38-39. They didn't eat
out, usually getting takeout food, in part because Farringer wanted to avoid
meeting anyone she knew. T39, T46. Farringer estimated that she watched
about 3 hours of television a day and spent about 3 hours a day on the
computer. T39. She estimated about an hour a day reading, but could only
read for about 30 minutes before losing concentration. T39-40. She said she
got a total of 4 to 5 hours of sleep in an average night, and did not feel well
rested in the morning. T47. Her medications also caused drowsiness. T48.
She napped once or twice a day, for a total of 2 to 3½ hours. T47-48.
Farringer said she could take care of herself with some help, but that
some things were difficult or painful for her because it was hard for her to
bend over. T40-41. Farringer also cared for the household's two dogs and
three cats; she could take the dogs for a walk on a good day. T43. Her exercise
was otherwise limited to chores and 30 minutes a day of stretching exercises
suggested by her physical therapist. T43.
Farringer testified that her social interaction was limited by her
mental condition, and that she isolated herself. T45. She had trouble
managing anger with other people. T48-49. She was paranoid about being
watched, particularly by the government. T45. Being in public or large groups
of people caused pronounced anxiety. T46. At her last job, in retail customer
service, Farringer had constant anxiety problems where she would need to
isolate herself from customers. T44. She had trouble with authority figures.
T45. Her nightmares included dreams about one figure in particular. T47.
The vocational expert (VE) who testified at the hearing was presented
with a hypothetical assuming a claimant who was limited to light work and
should avoid even moderate exposure to extreme temperatures, and had
moderate limitations in her abilities to work in coordination with or in
proximity to others without being distracted by them, interact appropriately
with the general public, and accept constrictions and respond appropriately
to criticism from her supervisor. T59-60 The hypothetical also assumed a
claimant who could understand, remember, and carry out at least simple
instructions and would be best off in a work situation with limited contact
with the public and supervisors. T60. Such a claimant, the VE opined, could
not do Farringer's past work, but could do other jobs, such as housekeeper,
mail clerk, and garment sorter. T60-61. But the VE admitted that a
hypothetical claimant with the limitations identified by Naseem would be
unable to work, as would a claimant who was limited to light work but would
miss more than 3 days a month due to medical conditions. T61-63.
SEQUENTIAL ANALYSIS AND ALJ FINDINGS
To determine whether a claimant is entitled to disability benefits, the
ALJ performs a five-step sequential analysis. 20 C.F.R. § 404.1520(a)(4).
At the first step, the claimant has the burden to establish that she has
not engaged in substantial gainful activity since her alleged disability onset
date. Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006); 20 C.F.R. §
404.1520(a)(4)(i). If the claimant has engaged in substantial gainful activity,
the claimant will be found not to be disabled; otherwise, the analysis proceeds
to step two. Gonzales, 465 F.3d at 894; 20 C.F.R. § 404.1520(a)(4)(i).
In this case, the ALJ found that Farringer had not engaged in
substantial gainful activity since her alleged disability onset date, and that
finding is not disputed on appeal. T10.
STEPS TWO AND THREE
At the second step, the claimant has the burden to prove she has a
"medically determinable physical or mental impairment" or combination of
impairments that is "severe[,]" 20 C.F.R. § 404.1520(a)(4)(ii), in that it
"significantly limits [her] physical or mental ability to perform basic work
activities." Gonzales, 465 F.3d at 894; see also Kirby v. Astrue, 500 F.3d 705,
707–08 (8th Cir. 2007). Next, "at the third step, [if] the claimant shows that
[her] impairment meets or equals a presumptively disabling impairment
listed in the regulations, the analysis stops and the claimant is automatically
found disabled and is entitled to benefits." Gonzales, 465 F.3d at 894; 20
C.F.R. § 404.1520(a)(4)(iii). Otherwise, the analysis proceeds.
For mental impairments, at steps two and three of the sequential
analysis, the ALJ utilizes a two-part "special technique" to evaluate a
claimant's impairments and determine, at step two, whether they are severe,
and if so, at step three, whether they meet or are equivalent to a "listed
mental disorder." 20 C.F.R. § 404.1520a(a), (d)(1) and (2). The ALJ must first
determine whether the claimant has "medically determinable mental
impairment(s)." 20 C.F.R. § 404.1520a(b)(1). If any such impairment exists,
the ALJ must then rate the degree of "functional limitation" resulting from
the impairment. 20 C.F.R. § 404.1520a(b)(2). This assessment is a "complex
and highly individualized process that requires [the ALJ] to consider multiple
issues and all relevant evidence to obtain a longitudinal picture of [the
claimant's] overall degree of functional limitation." 20 C.F.R. §
Four "broad functional areas" are used to rate these limitations:
"[a]ctivities of daily living; social functioning; concentration, persistence, or
pace; and episodes of decompensation." 20 C.F.R. § 404.1520a(c)(3). These
areas are also referred to as the "paragraph B criteria," which are contained
in 20 C.F.R. Part 404, Subpart P, Appx. 1, § 12.00 et seq. The first three
criteria are rated using a five-point scale of none, mild, moderate, marked,
and extreme. 20 C.F.R. § 404.1520a(c)(4). The fourth criterion, episodes of
decompensation, is rated as: none, one or two, three, four or more. Id.
After rating the degree of functional limitation resulting from any
impairments, the ALJ determines the severity of those impairments (step
two). 20 C.F.R. § 404.1520a(d). Generally, if the first three functional areas
are rated as "none" or "mild" and the fourth area as "none," the ALJ will
conclude that any impairments are not severe, unless the evidence indicates
otherwise. 20 C.F.R. § 404.1520a(d)(1). If any impairments are found to be
severe at step two, the ALJ proceeds to step three, and compares the medical
findings about the impairments and the functional limitation ratings with
the criteria listed for each type of mental disorder in 20 C.F.R. Part 404,
Subpart P, Appx. 1, § 12.00 et seq.
The ALJ found that Farringer had severe impairments: PTSD,
fibromyalgia, and gastroparesis. T11. But, the ALJ found, Farringer's
impairments did not meet the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appx. 1, § 12.00 et seq. T12. The ALJ explained:
In activities of daily living, the claimant has mild restriction. She
reported being able to perform numerous activities despite her
mental symptoms, including preparing meals, paying bills, doing
chores, and using the computer for shopping, researching, and
In social functioning, the claimant has moderate difficulties,
particularly in the ability to work with others, interact
appropriately with the general public, and accept instructions or
criticism from supervisors. She reported that she lives with her
significant other and spends time with friends and family, she
goes grocery shopping and Christmas shopping at Walmart, and
she runs errands and occasionally goes bowling.
With regard to concentration, persistence, or pace, the claimant
has mild difficulties. Her mental status examinations do not
reflect more than mild difficulties with attention, concentration,
and memory. She can complete at least simple work and she has
been able to independently perform daily tasks, such as volunteer
work, online research, and reading.
As for episodes of decompensation, the claimant has experienced
no episodes of decompensation, which have been of extended
duration. There is no evidence of inpatient psychiatric treatment
or an exacerbation of mental symptoms accompanied by a loss of
adaptive functioning for an extended duration.
RESIDUAL FUNCTIONAL CAPACITY
Before moving to step four, the ALJ must determine the claimant's
residual functional capacity (RFC), which is then used at steps four and five.
20 C.F.R. § 404.1520(a)(4). "'Residual functional capacity' is defined as 'the
most [a claimant] can still do' despite the 'physical and mental limitations
that affect what [the claimant] can do in a work setting' and is assessed
based on all 'medically determinable impairments,' including those not found
to be 'severe.'" Gonzales, 465 F.3d at 894 n.3 (quoting 20 C.F.R. §§ 404.1545
To determine a claimant's RFC, the ALJ must consider the impact of
all the claimant's medically determinable impairments, even those previously
found to not be severe, and their related symptoms, including pain. 20 C.F.R.
§§ 404.1529(d)(4) and 404.1545(a)(1) and (2). This requires a review of "all the
relevant evidence" in the case record. 20 C.F.R. § 404.1545(a). Although the
ALJ is responsible for developing the claimant's complete medical history, 20
C.F.R. § 404.1545(a)(3), the claimant bears the burden of proof to
demonstrate his or her RFC. Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir.
2000). The ALJ will consider "statements about what [the claimant] can still
do that have been provided by medical sources, whether or not they are based
on formal medical examinations," as well as descriptions and observations of
the claimant's limitations caused by her impairments, including limitations
resulting from symptoms, provided by the claimant or other persons. 20
C.F.R. § 404.1545(a)(3).
The RFC assesses the claimant's ability to meet the physical, mental,
sensory, and other requirements of work. 20 C.F.R. § 404.1545(a)(4). The
mental requirements of work include, among other things, the ability: to
understand, remember, and carry out instructions; to respond appropriately
to supervision, coworkers, and work pressures in a work setting; to use
judgment in making work-related decisions; and to deal with changes in a
routine work setting. 20 C.F.R. §§ 404.1545(c) and 404.1569a(c); SSR 96-8p,
61 Fed. Reg. 34474-01, 34477 (July 2, 1996). An RFC must assess the
claimant's ability to meet the mental requirements of work, 20 C.F.R. §
404.1545(a)(4), which includes the ability to respond appropriately to
coworkers and work pressures. 20 C.F.R. §§ 404.1545(c) and 404.1569a(c);
SSR 96-8p, 61 Fed. Reg. at 34477. The RFC must include all limits on work-
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related activities resulting from a claimant's mental impairments. SSR 85-16,
1985 WL 56855, at *2 (1985)
A special procedure governs how the ALJ evaluates a claimant's
symptoms. The ALJ first considers whether the claimant suffers from
"medically determinable impairment(s) that could reasonably be expected to
produce [the claimant's] symptoms." 20 C.F.R. § 404.1529(a) to (c)(1). A
medically determinable impairment must be demonstrated by medical signs
or laboratory evidence. 20 C.F.R. § 404.1529(b). If this step is satisfied, the
ALJ then evaluates the intensity and persistence of the claimant's symptoms
to determine how they limit the claimant's ability to work. 20 C.F.R. §
404.1529(c)(1). This again requires the ALJ to review all available evidence,
including statements by the claimant, "objective medical evidence," 3 and
"other evidence."4 20 C.F.R. § 404.1529(c)(1) to (3).
The ALJ considers the claimant's statements about "the intensity,
persistence, and limiting effects of [her] symptoms," and evaluates them "in
relation to the objective medical evidence and other evidence." 20 C.F.R. §
404.1529(c)(4). Ultimately, symptoms will be determined to diminish the
claimant's capacity for basic work activities, and thus impact the claimant's
RFC, "to the extent that [the claimant's] alleged functional limitations and
restrictions due to symptoms . . . can reasonably be accepted as consistent
with the objective medical evidence and other evidence." Id.; 20 C.F.R. §
404.1529(d)(4). In assessing the credibility of a claimant's subjective
testimony regarding his or her alleged symptoms, the ALJ must weigh a
number of factors. See, Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009); 20
C.F.R. § 404.1529(c)(3)(i–vii).5 When deciding how much weight to afford the
opinions of treating sources and other medical opinions regarding a
claimant's impairments or symptoms, the ALJ considers a number of factors
set forth in 20 C.F.R. § 404.1527.
The ALJ found that Farringer had the RFC to
20 C.F.R. §§ 404.1529(c)(2) and 404.1528(b) and (c).
“Other evidence” includes information provided by the claimant, treating and non-treating
sources, and other persons. See 20 C.F.R. § 404.1529(a)(1) (and sections referred to therein);
see also 20 C.F.R. § 404.1529(c)(3).
In assessing a claimant's credibility, the ALJ should consider: (1) the claimant's daily
activities; (2) the duration, intensity, and frequency of pain; (3) the precipitating and
aggravating factors; (4) the dosage, effectiveness, and side effects of medication; (5) any
functional restrictions; (6) the claimant's work history; and (7) the absence of objective
medical evidence to support the claimant's complaints. Moore, 572 F.3d at 524.
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perform light work as defined in [20 C.F.R. § 404.1567(b)]6 except
she should avoid even moderate exposure to extreme cold. She
has moderate limitation, defined as less than marked but more
than mild limitation, in the ability to work in coordination with
or proximity to others without being distracted by them, interact
appropriately with the general public, and accept instructions
and respond appropriately to criticism from supervisors. She can
understand, remember, and carry out at least simple instructions
and would be better off in a work situation with limited contact
with the public and supervisors.
T13. The ALJ found that Farringer's statements concerning the limitations of
her symptoms were not credible, stating that the "objective medical evidence
is inconsistent with the alleged severity of her impairments." T14-15. The
ALJ found that Naseem's opinion was inconsistent with the record. T18.
Instead, the ALJ credited Branham's opinion with respect to Farringer's
mental condition. T19. The ALJ explained:
The record shows the level of the claimant's physical and mental
complaints are out of proportion to her daily activities and the
longitudinal record. She testified that she lives with her
significant other and occasionally goes bowling, sees a movie, or
gets take-out food or drive-thru; she spends about 3 hours a day
on the computer and does 80% of her shopping online, researches,
and reads news articles, Facebook, and email; she watches
television about 3 hours a day and can concentrate to read a book
30 minutes at a time; she planted flowers and gardened in the
summer, cares for 2 dogs and 3 cats, walks the dogs some days,
and does 30 minutes of physical therapy stretches a day; she does
simple meal prep, pays bills, does some dishes, makes beds,
sweeps, drives and runs errands, goes to the gas station and the
grocery store some days, and goes Christmas shopping at
Walmart; and she talks to her mother and 2 brothers several
Light work involves lifting no more than 20 lbs. at a time with frequent lifting or carrying
of objects weighing up to 10 lbs. Even though the weight lifted may be very little, a job is in
this category when it requires a good deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, the claimant must have the ability
to do substantially all of these activities. If someone can do light work, he or she can also do
sedentary work, unless there are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time. 20 C.F.R. § 404.1567(b).
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times a week, has the family over for football games occasionally,
has 1-2 other friends who visit her every week, and drives 25
minutes one-way to her family's house 1-2 times a month and for
Although the claimant testified that she needs some help with
her self-care activities, she uses a shower stool because it is hard
to bend, and she gets help putting on her shoes and socks, these
statements are not very credible in view of the extent of her other
reported activities. Similarly, her allegation that she does not like
to leave the house erodes her credibility in view of the activities
she does. The claimant testified that when she is discharged from
the military she wants to go to school and she is considering
becoming a lawyer or working for a nonprofit. In January 2011,
she began doing volunteer work at a cat rescue on Tuesdays and
Saturdays for a total of 6 hours a week cleaning kennels,
mopping the floor, and sweeping. This significantly erodes the
credibility of her pain complaints.
STEPS FOUR AND FIVE
At step four, the claimant has the burden to prove that she lacks the
RFC to perform her past relevant work. Gonzales, 465 F.3d at 894; 20 C.F.R.
§ 404.1520(a)(4)(iv). If the claimant can still do her past relevant work, she
will be found to be not disabled, otherwise, the analysis proceeds to step five.
At step five, the burden shifts to the Commissioner to prove, considering the
claimant's RFC, age, education, and work experience, that there are other
jobs in the national economy that the claimant can perform. Gonzales, 465
F.3d at 894; 20 C.F.R. § 404.1520(a)(4)(v).
The ALJ found that Farringer was precluded from performing her past
relevant work. T20. But, the ALJ found that Farringer could successfully
adjust to other work that exists in significant numbers in the national
economy. T21. So, the ALJ found that Farringer was not disabled. T21.
STANDARD OF REVIEW
The Court reviews a denial of benefits by the Commissioner to
determine whether the denial is supported by substantial evidence on the
record as a whole. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011) (citing
42 U.S.C. § 405(g)). Substantial evidence is less than a preponderance but is
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enough that a reasonable mind would find it adequate to support the
conclusion. Id. The Court must consider evidence that both supports and
detracts from the ALJ's decision, and will not reverse an administrative
decision simply because some evidence may support the opposite conclusion.
Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011). If, after reviewing the
record, the Court finds it is possible to draw two inconsistent positions from
the evidence and one of those positions represents the ALJ's findings, the
Court must affirm the ALJ's decision. Id.
Farringer argues that the ALJ erred by failing to properly weigh
Naseem's opinion, because Naseem was Farringer's treating psychiatrist. The
The opinion of a treating medical source is given more weight because
those sources are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of the claimant's impairments and may bring a
unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations. 20 C.F.R. §
404.1527(c)(2). When the treating physician's opinion is supported by proper
medical testing, and is not inconsistent with other substantial evidence in the
record, the ALJ must give the opinion controlling weight. See, id.; Anderson
v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012).
Even if the treating source's opinion is not given controlling weight, an
ALJ must apply certain factors—the length of the treatment relationship and
the frequency of examination, the nature and extent of the treatment
relationship, supportability of the opinion, consistency of the opinion with the
record as a whole, and the specialization of the treating source—in
determining what weight to give the opinion. See 20 C.F.R. 404.1527(c)(2); see
also Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). And the
ALJ must always give good reasons for the weight given the treating source's
opinion. 20 C.F.R. § 404.1527(c)(2); see also Anderson, 696 F.3d at 793.
Pursuant to that provision, a decision denying benefits "must contain specific
reasons for the weight given to the treating source's medical opinion,
supported by the evidence in the case record, and must be sufficiently specific
to make clear to any subsequent reviewers the weight the adjudicator gave to
the treating source's medical opinion and the reasons for that weight." SSR
96-2p, 61 Fed. Reg. 34490-01, 34492 (July 2, 1996); Wilson, 378 F.3d at 544.
There is no dispute that Naseem was a treating source whose opinion
was entitled to deference. See 20 C.F.R. § 404.1502. The ALJ stated only that
Naseem's opinion was "not given great weight because the evidence fails to
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support marked limitations or a finding of disability. His opinion is
inconsistent with the record as a whole, including his own treatment notes
and the claimant's reported activities." T18. The Court has seen that bit of
boilerplate before. It glosses over the fact that the ALJ identified nothing
particular in Naseem's treatment notes that is inconsistent with his opinion.
The Court recognizes that it reviews for substance over form: an arguable
deficiency in opinion-writing technique does not require the Court to set aside
an administrative finding when that deficiency had no bearing on the
outcome. Buckner v. Astrue, 646 F.3d 549, 559 (8th Cir. 2011). And the Court
also recognizes that it is permissible for an ALJ to discount an opinion of a
treating source that is inconsistent with the source's clinical treatment notes.
Davidson v. Astrue, 578 F.3d 838, 843 (8th Cir. 2009). But the Court does not
view its standard of review as requiring it to go blindly hunting through a
claimant's medical records looking for inconsistencies upon which the ALJ
might have relied.
Nor does the ALJ's recitation of Farringer's medical history seem to
fairly characterize the available records. Any "inconsistencies," to the extent
they are apparent, seem to rest on the ALJ's failure to mention aspects of the
record that are consistent with Naseem's opinion. For example, in reciting
Farringer's medical history, the ALJ remarked that "[i]n October 2011, the
claimant was doing well with improved mood and continued efforts to
improve communication with her family and significant other." T17. And that
much is true—but the ALJ did not discuss how, in the same office visit,
Farringer "identified that her sleep remains disturbed, and anxiety in public
settings while reduced continued to interfere with normal activities." T627.
The ALJ continued to note that Farringer "enjoyed her volunteer work with
only minor problems with others, and continued to have a more peaceful
relationship with her significant other." T17. But Farringer's "minor
problems" were produced by "the limited contact she has with others while at
work." T619. And the ALJ did not note how Farringer "discussed her anxiety
in public settings, with triggers of having people too close to her, feeling
trapped or not able to see a way out, beliefs that people are following or
watching her, someone may grope her or pickpocket." T619.
The ALJ's primary focus, however, seems to have been on Farringer's
self-reported day-to-day activities. The ALJ effectively concluded that
Farringer's day-to-day activities demonstrated a capability to perform light
work. T20. The Court sees two problems with that conclusion. First, as with
Farringer's medical records, the ALJ's recitation of the relevant facts is, while
perhaps not wholly inaccurate, at least incomplete. For example—and this is
only an example—the ALJ said that Farringer's self-reported activities
included "simple meal prep, pays bills, does some dishes, makes beds, sweeps,
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drives and runs errands, goes to the gas station and the grocery store some
days, and goes Christmas shopping at Walmart." T19. But what Farringer
testified to was that she did not fix meals, although she would sometimes
"make like easy mac or something like that." T36. She said she went to the
gas station but could not pump gas, "[v]ery rarely" went to the grocery store,
and went to Wal-Mart to shop for Christmas "early in the morning or late at
night" when the store wasn't busy. T36-37. Simply put, Farringer's actual
evidence and testimony does not support the ALJ's characterization. See
Leckenby v. Astrue, 487 F.3d 626, 634 (8th Cir. 2007).
The Court would find it easier to defer to the ALJ's findings of fact if
her decision suggested that the facts had been objectively evaluated. An
incomplete description of a claimant's activities is an unpersuasive basis for
an ALJ's dismissal of a treating source's opinion. See Tilley v. Astrue, 580
F.3d 675, 681 (8th Cir. 2009). The ALJ's recitation of the facts in this case is
precisely the sort of "truncated discussion" that the Eighth Circuit has found
insufficient to support an ALJ's finding that a claimant's activities are
inconsistent with a claim of disability. See Reed, 399 F.3d at 922-23.
But more importantly, the Court finds nothing in Farringer's testimony
(as opposed to the ALJ's description of that testimony) that is inconsistent
with Naseem's opinion regarding Farringer's limitations or ability to work.
See Leckenby, 487 F.3d at 634. Farringer's ability to engage in some life
activities, despite her discomfort, "does not mean she retained the ability to
work as of the date last insured." See Tilley, 580 F.3d at 681. The Eighth
Circuit has, in fact, "oft-expressed skepticism about the probative value of
evidence of day-to-day activities," and has found it "necessary from time to
time" to remind the Commissioner "'that to find a claimant has the residual
functional capacity to perform a certain type of work, the claimant must have
the ability to perform the requisite acts day in and day out, in the sometimes
competitive and stressful conditions in which real people work in the real
world.'" Reed, 399 F.3d at 923-24. The Eighth Circuit has "'repeatedly
observed that "the ability to do activities such as light housework and visiting
with friends provides little or no support for the finding that a claimant can
perform full-time competitive work."'" Id. at 923.
In point of fact, Farringer's self-reported activities are wholly
consistent with Naseem's explanation for the etiology of Farringer's
limitations.7 Naseem explained that Farringer was severely socially avoidant,
"experienced severe setbacks when exposed to even limited stress[,]" and
The Court also notes that some of Farringer's activities were undertaken at the urging of
her counselors. It would be somewhat perverse to use Farringer's attempts to overcome her
disability as evidence that it did not exist in the first place.
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"experiences severe symptoms when challenged." T670-71. Farringer's
demonstrated abilities to sweep a floor, load a dishwasher, and make Kraft
macaroni and cheese are not inconsistent with Naseem's opinion that
Farringer's symptoms would preclude her from functioning in the more
stressful context of competitive employment. Stated more generally,
Farringer's ability to function in familiar environments does not contradict
Naseem's opinion that Farringer could not function well in unfamiliar
surroundings. T671. And Farringer also said that even her routine day-to-day
tasks suffered from time to time, consistent with Naseem's opinion that
Farringer could be expected to miss work more than three times a month due
to her limitations. T669.
The Court is aware that an ALJ may discount or even disregard the
opinion of a treating source where other medical assessments are supported
by better or more thorough medical evidence, or where a treating source
renders inconsistent opinions that undermine the credibility of such opinions.
Reed, 399 F.3d at 921. But Naseem's opinion was the only opinion in the
record from a mental health practitioner who had even examined Farringer.
The ALJ discounted that opinion in favor of the opinion of a non-treating,
non-examining psychologist who relied exclusively on the medical records—
including Naseem's records—to arrive at an opinion. See Shontos v.
Barnhart, 328 F.3d 418, 425 (8th Cir. 2003). The opinions of non-treating
practitioners who have attempted to evaluate the claimant without
examination do not normally constitute substantial evidence on the record as
a whole upon which to base a denial of benefits. Id. at 417. On the record
before the Court, the ALJ should have given controlling weight to Naseem's
opinion with respect to Farringer's mental condition.
Having reached that conclusion, it is unnecessary for the Court to
consider Farringer's other arguments.8 Naseem's opinion, when given
controlling weight, establishes the required level of severity under the
criteria contained in 20 C.F.R. Part 404, Subpart P, Appx. 1, §§ 12.06A and
12.06B. Thus, Farringer's impairment meets or equals a presumptively
disabling impairment, so the analysis stops at step three of the five-step
sequential analysis, and Farringer is entitled to benefits. See, Gonzales, 465
F.3d at 894; 20 C.F.R. § 404.1520(a)(4)(iii). In the alternative, the evidence is
uncontested that given an RFC based on Naseem's opinion of Farringer's
limitations, there is not a significant number of jobs in the national economy
that Farringer can perform. See, Gonzales, 465 F.3d at 894; 20 C.F.R. §
The Court notes, in particular, that while Farringer's physical condition was at issue, her
mental condition is sufficient to establish disability—so, the Court does not consider
whether Farringer's physical symptoms were independently credible or disabling.
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404.1520(a)(4)(v). So, even if the sequential analysis proceeds to step five,
Farringer is still entitled to benefits. The Court will therefore reverse the
Commissioner's decision and remand for an award of benefits. See Shontos,
328 F.3d at 427.
The Court has reviewed the administrative record and finds that the
ALJ erred in not affording controlling weight to Naseem's opinion. The Court
will reverse the Commissioner's decision and remand the case for an award of
IT IS ORDERED:
The Commissioner’s decision is reversed.
This matter is remanded to the Commissioner pursuant to
sentence four of 42 U.S.C. § 405(g) for calculation and
award of benefits.
A separate judgment will be entered.
Dated this 17th day of September, 2013.
BY THE COURT:
John M. Gerrard
United States District Judge
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