Moore v. Astrue
MEMORANDUM AND ORDER - IT IS ORDERED: This case is reversed and remanded to the Commissioner for further proceedings consistent with this opinion. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (TCL )
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 Shawna Moore's claim for disability insurance
benefits under Titles II and XVI of the Social Security Act ("SSA"), 42
U.S.C. §§ 401 et seq. and 1381 et seq. The Court has considered the parties'
filings and the administrative record, and the Commissioner's decision will be
remanded for proceedings consistent with this memorandum and order.
This case involves two applications made under the SSA. In February
2010, Moore applied for disability insurance benefits under Title II and for
supplemental security income benefits under Title XVI. T38–39; T313–14.
Both claims were denied initially and on reconsideration. T40–49. Following
a hearing on May 4, 2011, the administrative law judge (ALJ) found that
Moore was not disabled as defined under 42 U.S.C. §§ 416(i), 423(d), or
1382c(a)(3)(A), and therefore not entitled to benefits under the SSA. T26–37.
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
step one, the claimant has the burden to establish that she has not engaged
in substantial gainful activity since her alleged disability onset date. Id.;
Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006). If the claimant has
engaged in substantial gainful activity, she will be found not to be disabled;
otherwise, at step two, she has the burden to prove she has a medically
determinable physical or mental impairment or combination of impairments
that significantly limits her physical or mental ability to perform basic work
activities. Gonzales, 465 F.3d at 894. At step three, if the claimant shows that
her impairment meets or equals a presumptively disabling impairment listed
in the regulations, she is automatically found disabled and is entitled to
benefits. Id. Otherwise, the analysis proceeds to step four, but first, the ALJ
must determine the claimant's residual functional capacity (RFC), which is
used at steps four and five. § 404.1520(a)(4). At step four, the claimant has
the burden to prove she lacks the RFC to perform her past relevant work.
Gonzales, 465 F.3d at 894. If the claimant can still do her past relevant work,
she will be found not to be disabled; otherwise, 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 the claimant can perform. Id.
Moore has alleged that she has been disabled since December 31, 2009,
primarily as a result of several mental impairments: an anxiety-related
disorder and/or posttraumatic stress disorder (PTSD) with panic attacks;
affective (mood) disorders, including bipolar affective disorder and major
depression; attention deficit disorder; and mild mental retardation.1 T28, 33,
38–39, 44, 84, 149, 310, 313–14. At the time of the administrative hearing in
May 2011, Moore was 36 years old. T325.
In this case, at step one, the ALJ found that Moore had not engaged in
substantial gainful activity since her alleged disability onset date of
December 31, 2009. T28. At step two, the ALJ found that Moore had the
following severe impairments: bipolar affective disorder, attention deficit
disorder, PTSD, and borderline intellectual functioning.2 T28. Next, at step
three, the ALJ found that Moore's impairments, considered singly and in
combination, did not meet or medically equal a presumptively disabling listed
The ALJ found that Moore had the RFC to perform a full range of work
at all physical exertional levels, with several non-exertional (mental)
limitations: Moore was limited to simple, routine, and repetitive tasks in a
low stress environment, defined as requiring only occasional decision-making
SSA regulations and the parties in this case use the term "mental retardation." However,
because that term can be inaccurate and is offensive to many persons, the SSA is
transitioning to using the term "intellectual disability" to refer to the same concept.
Talavera v. Astrue, 697 F.3d 145, 148 n.2 (2d Cir. 2012) (quoting Proposed Rules: Revised
Medical Criteria for Evaluating Mental Disorders, 75 Fed. Reg. 51336–01, 51339 (Aug. 19,
2010)). At times, this Court will use the phrase "mental retardation," because that is the
language used by the parties and in the medical records.
At step two, the ALJ also found that Moore suffered from asthma, and that it was a severe
impairment. T28. The ALJ accounted for Moore's asthma by including additional
limitations in Moore's RFC. T28, 32. However, Moore's appeal focuses on her mental
conditions, and the Court will not discuss her asthma further.
and occasional changes in the work setting. Additionally, Moore required
work with no interaction with the public and no more than occasional contact
with coworkers. T31.
At step four, the ALJ found that Moore was unable to perform her past
relevant work. T36. And at step five, the ALJ found that Moore could perform
jobs that existed in significant numbers in the national economy, based on
the testimony of a vocational expert. T36–37. The ALJ provided
representative jobs of dishwasher, warehouse worker, and hand packager.
T37. So, the ALJ found that Moore was not disabled. T37.
On May 25, 2012, after reviewing additional evidence provided by
Moore, the Appeals Council of the Social Security Administration denied
Moore's request for review. T1–4. Moore's complaint (filing 1) seeks review of
the ALJ's decision as the final decision of the Commissioner under sentence
four of 42 U.S.C. § 405(g). See also § 1383(c)(3).
Moore suffers from a number of mental conditions. The administrative
record contains extensive documentation of Moore's reports concerning her
symptoms, her visits to treatment providers, and their evaluations and
treatment notes. The Court has fully reviewed that record, but only the
particularly relevant portions will be summarized below.
I. Pre-Onset Date Medical and Work History
Before kindergarten, Moore underwent a psychological evaluation,
which found that she fell into the "educable mentally retarded range of
intelligence." T296. As a result, she was placed in a developmental
kindergarten program, and throughout her education, Moore was enrolled in
some special education classes. T181, 192, 288, 295–96. In 1987, when she
was 12, Moore underwent an IQ test, and received a full-scale score of 72.
T293. This placed her within the limits of "borderline intelligence" and the
evaluator stated that Moore met the criteria of "mild educable mental
retardation." T293–94. The evaluator noted, however, that Moore tended to
give up easily and that Moore may have been more capable than she
appeared. T293–94. For example, Moore was able to complete some math
questions that she skipped over when given the same questions after the test
was over. T293. The evaluator also found that developmentally, Moore was
functioning at a high 6-year-old level. T294. Eventually, Moore dropped out of
school after completing the ninth grade. T114, 181, 191, 326–27.
Moore has had a tragic and tumultuous family life. As a child, Moore
was abused—sexually, physically, and emotionally—by her father. T187,
282–83. She moved out of her parents' house when she was 16 and married
quickly. T187. Her first husband was also physically and emotionally
abusive, and they divorced after 9 years. T187, 191, 282. Moore's first
marriage produced two children, who were ages 17 and 18 at the time of the
hearing in May 2011. T187, 191, 339. Throughout the relevant time period,
those children lived with their father or his parents. T191, 283, 339. At one
point Moore reported that she had "very little to no contact" with her children
because their father did not allow it. T191. But at the hearing before the ALJ,
she stated that she could see them whenever she wanted to go see them,
although she usually called. T339. In 2001, Moore married her second
husband. T283. This relationship, fortunately, was not abusive. T187, 282. As
a result of her second marriage, Moore gained four step-grandchildren, who
were ages 3, 4, 7, and 9 at the time of the hearing. T334.
Although the record contains no medical notes prior to Moore's alleged
disability onset date of late 2009, there is evidence that anxiety and
depression have troubled Moore for many years. T266. In 2000, Moore was
hospitalized following a suicide attempt. T181, 192, 281–82. She was also
reportedly diagnosed with PTSD around that time. T282. Some years later,
her father, who had been incarcerated for his sexual abuse of Moore, was
released from prison. Moore later reported that she became more anxious
following his release and more reluctant to go out in public. T191–92. And for
years prior to her alleged disability onset date, Moore was troubled by
nightmares of abuse by her father. T266.
Since 1995, Moore has worked in a number of jobs. From 1995 to 2009,
she worked for various employers as a cashier, short-order cook, and
waitress. T115. Some of these were full-time positions. T115, 328–330. For
some significant period of time, she also worked as a cashier for one or more
retail stores for 25-30 hours a week. T115, 329. Most recently, Moore worked
for about 6 months as a waitress, until December 31, 2009, when she was
fired. Moore later explained that she was fired because she missed work a lot,
was having panic attacks, and "couldn't keep up with what they wanted."
T130, 238, 328.
II. Medical and Disability Records
On March 2, 2010, Moore met with Y.Z. Leonard, APRN, for a
psychiatric evaluation. T181. Moore reported worsening depression over the
past few months and complained of severe insomnia. She was still having
nightmares of being abused by her father, and was sleeping an average of
only 2 to 3 hours a day. Moore complained of being exhausted and
experiencing a lack of concentration, focus, and motivation; feeling hopeless
and helpless; and experiencing social isolation. T181. She rated her
depression as a 10 out of 10 but denied suicidal ideation, and she was
irritable and had anger problems. T181. In a mental status examination,
Leonard found that Moore's memory and cognitive functioning were within
the "wide range of normal." T182. However, Leonard found that Moore's
attention span and concentration were "severely impaired." Leonard
diagnosed Moore with major depressive disorder, recurrent, severe and
assigned a Global Assessment of Functioning (GAF) score of 50.3 T182.
Moore described her symptoms in several "disability reports" from
March and April 2010. She was still having trouble sleeping due to her
nightmares and would take an hour-long nap every other day. T138. Moore
reported experiencing "anxiety reactions" or panic attacks, which she
described as feeling that someone was "going to get [her]. And I feel [like] my
chest is going to have a heart attack." T138–39; see also T116, 130. Moore
stated that these happened every day and lasted from 30 minutes to 2 hours.
Moore reported that being alone, driving, and being at work made her
anxious, and that being around a lot of people made her condition worse.
Calling her husband or her aunt, or being with her husband, helped her to
calm down. T139.
Moore described her activities of daily living in the same report. She
visited with her family and her friend "Sar," who lived nearby, almost every
day, for about 30 minutes. Moore had no other social activities. T136, 140.
Her conditions made it so she did not want to spend much time with family or
friends because she would get stressed and have panic attacks. T136, 139.
This also caused her to limit her driving and made it so she did not want to
go anywhere. T138. At some time between approximately March and May
2010, Moore and her husband separated, and Moore began to live on her own.
T266, 281, 326. She remained in the same home, and her husband moved out.
In May 2010, Moore was examined by psychologist Sheryl Shundoff,
Ph.D. Moore's reported symptoms remained more or less the same. T192. She
experienced nightmares two to three times a week. T191. Moore reported she
had become more anxious since her father had been released from prison, and
feared being in public alone. She would not go out in public without her
husband or a relative, and she avoided driving alone unless absolutely
A GAF score represents "the clinician's judgment of the individual's overall level of
functioning," not including impairments due to physical or environmental limitations. See
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders
32 (4th ed. 2000) [hereinafter, "DSM-IV"]. The GAF scale is divided into ten ranges of
functioning, with a score of 100 representing superior functioning. Id. at 32–34. A score in
the range of 41 to 50 signifies that the person suffers from "serious" symptoms, such as
suicidal ideation, or has "any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job). DSM-IV at 34 (emphasis supplied).
necessary. T192. Moore explained that she left jobs after a short time because
of her anxiety. She felt that she could deal with her anxiety if she could talk
to her aunt or husband on the phone, but she understood that she could not
take time at work to call them several times a day. Moore's husband, who
was also at the examination, stated that he had difficulty communicating
with her and that she was easily angered. T192.
Shundoff observed that Moore's mood was depressed and anxious, and
that Moore experienced intrusive thoughts related to her PTSD. T192.
Shundoff estimated Moore's IQ to be in the "average to borderline range, by
history and observation." T192. Shundoff determined that Moore would likely
benefit from medication and therapy, but that Moore would need "longer
term intervention due to the depth of her traumatic experience as a youth
and teen." T193. Shundoff noted, however, that Moore had financial
difficulties that had recently caused her to stop attending therapy. Shundoff
diagnosed Moore with PTSD with panic attacks, and major depression,
recurrent, mild to moderate. She assessed Moore's GAF for that year as 40–
Shundoff also completed a Social Security form assessing Moore's
current level of functioning. T194. The form presented a series of "yes" or "no"
questions with space for Shundoff to explain. Shundoff identified no
restrictions in Moore's activities of daily living, except that she had to take
someone with her when shopping or in public. She marked that Moore had
difficulty maintaining social functioning, as she avoided contact with people
except her immediate family and aunt. Shundoff marked that Moore suffered
"recurrent episodes of deterioration when stressed which result in
withdrawal from the situation or an exacerbation of symptoms." She
explained that Moore would respond with anger and irritability, and could be
avoidant and edgy with others. Shundoff stated that Moore was capable of
handling her own funds, understanding short and simple instructions, and
carrying out such instructions under ordinary supervision. T194. Shundoff
answered several questions with "Yes, but . . . ." She noted that Moore had
the "ability to sustain concentration and attention needed for task
completion," but that she was easily sidetracked or distracted. Moore could
"relate appropriately to co-workers and supervisors," but could be irritable
and outspoken. And Shundoff found that Moore had the "ability to adapt to
changes in [her] environment," although it would not be easy for her. T194.
As relevant here, a score in the range of 31 to 40 signifies "major impairment in several
areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed
man avoids friends, neglects family, and is unable to work . . . ." DSM-IV at 34 (emphasis
From May to July 2010, Moore met with Susan Winchester, APRN, for
medication management. Moore continued to report the same symptoms as
before. See, e.g., T230–31, 233, 236, 239–40. Moore stated that she had been
dealing with these problems for 2 years, but that she was now remembering
details of her abuse that she had previously blocked out. T230, 235.
Winchester adjusted Moore's medications and diagnosed her with PTSD and
"mood disorder not otherwise specified," and stated that bipolar disorder
needed to be ruled out. Winchester assigned Moore a GAF score of 40. T230,
233–34. Throughout the period she met with Moore, Winchester continued to
rate Moore's GAF as 40, except for once, when it rose to 45. T218–228. From
May to June, Moore reported that she was sleeping well and had no
insomnia, but reported being irritable and tired throughout the day.
Winchester's mental status examinations revealed continued poor attention
and focus on Moore's part. Winchester's notes stated that Moore was making
adequate progress, but that her prognosis was guarded. T224–228.
Winchester provided an opinion regarding Moore's functioning in a
June 15, 2010, case management note. T223. She wrote: "Depression and
anxiety interfere with ability to work at this time. Trials on medication so far
unsuccessful. Wants to work, but at this time could only work a few days a
week for a few hours a day in a very low stress situation." Winchester
continued to assess Moore's GAF at 40, but changed her diagnosis to PTSD
and bipolar I disorder. T223.
Winchester met with Moore three more times from June 16 to July 7,
2010. Moore reported some insomnia on one occasion, but otherwise
continued to report that she was sleeping well. T217–221. Winchester
continued to note that Moore was making adequate progress, and changed
her prognosis from "guarded" to "good." T217–221. Moore's mood remained
generally neutral and her attention and focus poor. T217–221. On June 30,
Moore reported improvement in her mood swings. T219. Winchester placed
Moore on Strattera (a medication used to treat attention deficit disorder), and
by their final meeting on July 7, while Winchester's mental status
examination showed that Moore's attention and focus were still poor, they
had improved with the Strattera. T217, 220.
Beginning in July 2010, Moore began seeing Sarah Grosse, APRN, for
medication management, after being referred by Winchester due to a lack of
responsiveness to her medication regime. T281. On July 16, Grosse
performed a diagnostic psychiatric evaluation. Moore continued to report the
same symptoms, including nightmares, difficulty sleeping, depression, mood
swings, panic attacks, and difficulty focusing. Moore stated that the Strattera
was still helping with her attention and focus, but kept her awake at night.
T281. Moore stated that her greatest challenges at that time were her
nightmares and panic attacks. She explained that she had not suffered from
panic attacks until the last year. T281.
Moore stated she had difficulty obtaining and maintaining employment
due to her panic attacks, temper issues, poor concentration, and getting
angry and just walking away from jobs. T283. Grosse noted that the
interview became too long for Moore's attention span, and that Moore had
difficulty sitting still and kept asking when they would be finished. Grosse
observed that Moore had poor concentration and was clearly having difficulty
with the interview process. T284.
Grosse diagnosed Moore with bipolar I disorder, attention deficit
disorder, and PTSD, and assigned her a GAF score of 42. T285. Grosse
prescribed a variety of new medications, to help with Moore's nightmares,
attention deficit disorder, mood stabilization, and for symptoms of anxiety
and depression. T285. Treatment notes from August to November 2010 show
that Moore and Grosse worked consistently to adjust Moore's medications to
help with her conditions and minimize side effects, and that overall, they
made some progress. T273–80.
When Grosse and Moore next met in August 2010, Grosse added a
diagnosis of mild mental retardation. T279. Grosse observed that Moore's
energy and motivation were increased, and Moore denied difficulty sleeping.
In September, Grosse observed no improvement in Moore's symptoms, but
noted that they had established a rapport. T277. In October, although Moore
reported difficulties with some of her medicines and continuing nightmares,
as well as continued depression, irritability, and mood swings, Grosse for the
first time found that Moore's symptoms had improved. T275–76.
In November 2010, Moore reported that her medications were working
"'really well.'" T273. She was no longer having any mood swings, although
she felt "'like a zombie.'" T273. She was sleeping excessively but her
nightmares were better, and although she was stressed, her mood was
"'pretty good.'" T273. Moore stated that her focus had improved with
medication but she was still having trouble focusing, and that her energy was
down but she did not have to force herself to get out of bed. Grosse observed
that Moore's motivation was within normal limits, she was coping well with
her anxiety, and that her mood was euthymic. T273. Grosse again found that
Moore's symptoms had improved. T274.
In late September 2010, state agency medical consultant Jennifer
Bruning Brown, Ph.D., completed forms assessing Moore's mental health
issues. T245–65. These forms included a "Mental Residual Functional
Capacity Assessment" form. T259. The form contained four broad categories:
Understanding and Memory; Sustained Concentration and Persistence;
Social Interaction; and Adaptation. Each category included spaces to assess
several specific work-related abilities. For example, within the category
"Understanding and Memory," the form asked for an evaluation of Moore's
ability to understand and remember both very short and simple instructions
and detailed instructions. Each ability was rated using checkboxes
corresponding to the following five options: not significantly limited;
moderately limited; markedly limited; no evidence of limitation in this
category; and not ratable on available evidence. T259–60.
Briefly, Bruning Brown found that Moore was either "not significantly
limited" or "moderately limited" in each of the work-related abilities listed on
the form. T259–60. She found that Moore's mental conditions did not impose
any "marked" limitations. Bruning Brown also attached a brief explanation,
and generally concluded that while Moore's conditions imposed some
limitations on her ability to work, they would not prevent her from
completing a full work day. T261; see also T257.
Moore continued seeing Grosse from December 2010 to February 2011.
In December, Moore stated that she was not doing too badly and was working
on her relationship with her husband. Grosse continued to adjust Moore's
medications in response to her input. Moore reported trouble sleeping, and
Grosse noted her energy and motivation were variable, that she had
moderate overt anxiety, and confirmed that Moore appeared more irritable.
T306–07. Grosse concluded that Moore's symptoms had worsened since the
last visit. T307.
At her January 2011 visit, Moore stated she was "'not doing too badly'"
considering that she could only afford to take one of her medications. T303.
She was working on obtaining financial assistance. Moore still reported
trouble sleeping and complained that she never felt rested and sometimes
took short naps because she was exhausted. She continued to experience
mood swings, irritability, and diminished motivation and energy. Moore
expressed a general lack of interest in her daily life, and Grosse observed
evident anhedonia.5 T303.
In February 2011, although Moore was still having trouble obtaining
all of her medications, she stated that "'I am sure I would do better if I could
get all of the medication[s] started . . . .'" T300. While her focus was still
improved, some of the medications made it difficult for her to sleep and she
reported being tired all day. She denied depression but continued to
experience mood swings. Grosse observed that Moore was more focused, that
her energy and motivation were within normal limits, and that her overt
Anhedonia is a "psychological condition characterized by inability to experience pleasure
in normally pleasurable acts." Merriam-Webster Online Dictionary, s.v. "Anhedonia",
available at: http://www.merriam-webster.com/dictionary/anhedonia (last accessed
September 27, 2013).
anxiety was mild. Nonetheless, Grosse wrote that Moore's symptoms had
remained unimproved. T300.
III. Hearing Testimony
On May 4, 2011, Moore testified at a hearing before the ALJ. Moore
explained that she selected the onset date of December 31, 2009, because
around that time she was "just starting to remember" details of abuse by her
father that she had previously blocked out. T327. Moore explained that she
would wake up "probably several times a night and it was just getting to a
point where it was too hard for me to cope with working . . . ." T327. Upon
waking, she would experience panic and the sensation that she was being
choked. T336. Moore testified that these nightmares were a nightly
occurrence, and that in a typical night, she would get 3 hours of sleep in a
row. T336, 340. She stated this left her tired and that she would take a 30minute to 1-hour nap during the day. T332, 336. Moore explained that she
was fired from her most recent job because she "couldn't keep up with what
they wanted." T328. When asked why she no longer worked, Moore stated,
"It's just too much for me. It's too much stress. I get angry easy if something
don't [sic] go right. I have panic attacks. I'm really tired a lot." T330.
Moore testified that she experienced panic attacks three times a week.
She described these as causing chills and shakes. But Moore also stated that
they were "[n]o[t] too bad. Most of it is just stress." These were triggered by
"[b]eing around a lot of people" and "e[v]ery once in a while" by driving. T335.
Because of these attacks, Moore disliked driving. When she had a panic
attack while driving, she would stop her car and call her aunt. T191, 334–35.
It generally took Moore about 20 to 30 minutes to calm down after an attack.
T337. Usually she could calm herself down by talking to her aunt, and then
she would get where she needed to go and hurry home. T336. Moore testified
that she experienced a panic attack on the drive to the hearing, and had
needed to pull her vehicle over. T347–48.
This also made shopping difficult. She would become fidgety, nervous,
and shaky, and have to go to the bathroom to be alone for 20 to 30 minutes to
calm down, or call her aunt. T339. Moore tried to get all of her shopping done
at once, and tried to limit it to about twice a month. T342. These attacks also
affected her family life. The night before the hearing, Moore was at a family
barbecue with about 10 people, and she testified she had a panic attack and
had to stay outside to get away from everyone for a while. T336. During the
hearing, Moore became nervous and fidgety, and took a short break to walk
out in the hallway. T337.
Moore also had trouble with mood swings. She would quickly become
irritable and "blow up" at people, including coworkers and family. "If
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somebody asks me a question or somebody looks at me wrong or something, I
get really angry and speak my opinion out loud when I shouldn't." T338.
Moore stated that she had been fired for such episodes, although she offered
no specific examples. T338.
Moore testified that she also had trouble concentrating and
maintaining focus. T340. Moore's attorney asked if, while working, she had to
be redirected or put back onto the task she was supposed to be doing. Moore
responded that she had experienced this, and that it would typically happen
a "couple of times" in a workday. T340. She also testified that even if she was
doing the same task for a work shift, she needed to be continually reminded
what to do. T341.
Finally, Moore testified as to her activities of daily living. Her
testimony was essentially consistent with her previous statements. Moore
was married but still separated, and lived by herself with two dogs. She did
not like to leave the house and generally tried to stay home. T333, 341. She
did not belong to any clubs or groups, did not attend any regular meetings or
church services, and had no hobbies. T332–33. However, Moore also testified
that she drove two to three times a day. She drove herself to doctor
appointments, the grocery store, and to her stepson's house to see her stepgrandchildren. T326. Moore testified that she tended to isolate herself and
didn't really have "any other social life." T326, 337. Later in the hearing she
admitted that she had a friend who lived nearby (who had come with her to
the hearing) that she would visit for coffee. T347.
Moore watched her four step-grandchildren about once a week, when
they would spend the night with her. T334–35. She also used a computer on a
daily basis to communicate with her daughter via e-mail and a social
networking site. T334. Moore would watch approximately 30 minutes of
television a day and usually listened to the radio. T333. Moore did not watch
much television, because she had a hard time staying focused on it. Moore
could read, but only at a second or third grade level—she could read a
children's book, but would have trouble with a newspaper, and she did not
read for pleasure. T283, 327, 333. Moore did her own laundry, housecleaning,
and cooking. T333. She had no trouble handling money. T333. But she would
occasionally miss meals because she would forget or was too depressed to eat.
The ALJ also heard testimony from a vocational expert (VE). T26, 70,
72, 343–44. The VE testified that, given her RFC, Moore could not perform
her past work, but there were jobs existing in the national economy that she
could perform. T343–44. The VE listed several "unskilled" positions as
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examples.6 T344. In response to questioning by Moore's attorney, the VE
testified that no jobs would exist for an individual who could "never" or
"rarely" have contact with coworkers or supervisors. T345. Nor would any
jobs exist for an individual that needed to take unscheduled breaks for 20 to
30 minutes at least 3 times per week, in order to deal with panic attacks, or
who needed to lie down for 30 to 60 minutes each day to rest. T345–46. And
the VE stated that an individual who had difficulty concentrating or
maintaining focus such that they had to be redirected back to their work
twice a day, on an ongoing basis, would have difficulty maintaining
IV. Post-Hearing Evidence
Following the hearing, Moore submitted additional evidence to the
Appeals Council. The new evidence consisted of a form filled out by Grosse
and dated September 15, 2011. The form was also signed by Eva Brion, M.D.
T16. It is not clear what Brion's relationship to Grosse was or whether Brion
had ever evaluated Moore, participated in her treatment, or supervised
Grosse. Although the form was completed after the ALJ's hearing, it stated
that its contents reflected Moore's conditions and limitations from July 2010
The form was more or less identical to the mental RFC assessment
form filled out by Bruning Brown. Unlike the form filled out by Bruning
Brown, this form defined "moderately" and "markedly limited." The former
was defined as "[t]he impairment prohibits that activity or function 1/3 of the
time." The latter was defined as "[t]he impairment causes problems in the
ability to perform the named activity to the extent that it precludes it." T14.
Briefly stated, Grosse found that Moore's conditions imposed
significantly more severe limitations on her work-related abilities than found
by Bruning Brown (and Shundoff). Among other things, Grosse found that
Moore was moderately limited in her ability to understand, remember, and
carry out very short and simple directions, and markedly limited in her
abilities to: maintain attention and concentration for extended periods, make
simple work-related decisions, sustain an ordinary routine without special
supervision, work in coordination with or proximity to others without being
distracted by them, accept instructions and respond appropriately to criticism
from supervisors, and get along with coworkers or peers without distracting
them or exhibiting behavioral extremes. T14–15. By comparison, Bruning
Social Security regulations distinguish between "unskilled", "semi-skilled", and "skilled"
work. See 20 C.F.R. § 416.968. Several of Moore's previous positions, such as the retail
cashier and waitress, were semiskilled. T177.
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Brown had found that Moore had no significant limits in most of these
categories, and moderate limitations in only a few others. T259–60.
The form contained several other findings from Grosse. She found that
Moore's then-current GAF was 47. T14. Grosse stated that Moore's
impairments would cause her to be absent from work about 3 days per
month, and that her impairments had lasted or could be expected to last 12
months. She also checked boxes signifying that Moore's impairments were
reasonably consistent with the symptoms and functional limitations
described in the form, and that Moore was not a malingerer. T16. Finally,
Grosse explained why Moore would have difficulty working at a regular job
on a sustained basis: "[Moore] experiences episodes of extreme irritability
where she snaps [at] others and gets demanding. We have had multiple
medication trials and have not established effective treatment. Previous
[medication] trials for inattention have also failed." T16.
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
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. The Court 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 defers to the ALJ's determinations regarding the
credibility of testimony, so long as they are supported by good reasons and
substantial evidence. Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011).
Broadly stated, Moore presents three arguments. Moore first argues
that the ALJ erred at step three by finding that Moore's conditions did not
medically equal the listing for intellectual disability. Second, Moore contends
that the ALJ improperly disregarded her consistently low GAF scores, and
failed to explain what evidence the ALJ relied upon in determining that
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Moore's functioning was higher than suggested by these scores. Finally,
Moore argues that the Appeals Council erred by determining that the new
evidence she presented (Grosse's September 2011 report) was not "material."
And, Moore asserts, when this evidence is considered, the ALJ's conclusion is
no longer supported by substantial evidence.
In examining Moore's first and second arguments, the Court first looks
only to the evidence that was before the ALJ—in other words, everything but
Grosse's new report. Based on that evidence, the Court finds Moore's first two
arguments unpersuasive. However, the Court concludes that the Appeals
Council did err in finding Moore's new evidence was not material. Therefore,
the Court will remand this case to the Commissioner for a proper
consideration of this evidence.
I. Medical Equivalence to Listing 12.05C
Moore first argues that the ALJ erred at step three by finding that
Moore's intellectual disability, considered singly or in combination with her
other impairments, did not medically equal Listing 12.05C for intellectual
disability. Listing 12.05 provides, in relevant part:
Intellectual disability refers to significantly subaverage general
intellectual functioning with deficits in adaptive functioning
initially manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of the impairment
before age 22.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
C. A valid verbal, performance, or full scale IQ of 60 through 70
and a physical or other mental impairment imposing an
additional and significant work-related limitation of function[.]
20 C.F.R. Part 404, Subpart P, Appx. 1, § 12.05C.
A claimant will be found to have met Listing 12.05C only if they have
satisfied both the diagnostic criteria in the introductory paragraph and any
one of the four sets of criteria in paragraphs A through D. § 12.00A; see also,
Talavera, 697 F.3d at 153 (the requirements of the introductory paragraph
are mandatory); Cheatum v. Astrue, 388 Fed. Appx. 574, 576 (8th Cir. 2010);
Maresh v. Barnhart, 438 F.3d 897, 899 (8th Cir. 2006). So, to meet Listing
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12.05C, a claimant must show: (1) deficits in adaptive functioning; (2)
evidence of initial manifestation before age 22; (3) a valid verbal, performance
or full-scale IQ score between 60 and 70; and (4) a physical or other mental
impairment imposing an additional and significant work-related limitation of
function. Maresh, 438 F.3d at 899; see also Cheatum, 388 Fed. Appx. at 576.
As the ALJ noted, Moore's only IQ test resulted in a full-scale score of
72, which falls outside the eligible range of scores for Listing 12.05C. T31,
293. Although this test was administered when Moore was 12, a person's IQ
is presumed to remain stable over time in the absence of evidence of a change
in a claimant's intellectual functioning. Phillips v. Colvin, 721 F.3d 623 (8th
Cir. 2013). So, it is clear that Moore cannot meet Listing 12.05C, and Moore
does not argue otherwise.7
However, a finding that Moore's impairment does not equal Listing
12.05C does not end the inquiry. The ALJ must also determine if Moore's
impairments, taken together, are medically equivalent to the listing, that is,
equal in severity and duration to the listing criteria. 20 C.F.R. § 404.1526(a).
The Commissioner has issued instructions for determining medical
equivalence, found within the Program Operations Manual System
("POMS"). Phillips, 721 F.3d at 630. The POMS guidelines do not have legal
force, nor are they binding on the Commissioner, but the ALJ should consider
A specific section of the POMS instructs ALJs how to determine
medical equivalence for Listing 12.05C. POMS § DI 24515.056.8 It provides,
in relevant part:
Listing 12.05C is based on a combination of an IQ score with an
additional and significant mental or physical impairment. The
criteria for this paragraph are such that a medical equivalence
determination would very rarely be required. However, slightly
higher IQ's (e.g., 70-75) in the presence of other physical or
For the sake of completeness, the Court notes that Moore has, however, satisfied the
fourth requirement: she had several mental impairments that imposed additional and
significant work-related limitations of function. In finding that Moore's bipolar affective
disorder, attention deficit disorder, PTSD, and asthma were severe impairments, the ALJ
necessarily found that they imposed significant work-related limitations of function. See 20
C.F.R. Part. 404, Subpart. P, Appx. 1 § 12.00A (fourth paragraph); see also, Banks v.
Massanari, 258 F.3d 820, 824 (8th Cir. 2001); Cook v. Bowen, 797 F.2d 687, 690–91 (8th
SSA, Evaluation of Specific Issues – Mental Disorders – Determining Medical Equivalence,
available at http://policy.ssa.gov/poms.nsf/lnx/0424515056 (last accessed September 27,
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mental disorders that impose additional and significant workrelated limitation of function may support an equivalence
determination. It should be noted that generally the higher the
IQ, the less likely medical equivalence in combination with
another physical or mental impairment(s) can be found.
POMS § DI 24515.056(D)(1)(c).
Moore notes that the ALJ did not explicitly state she had considered
the POMS guideline. So, Moore argues, the ALJ actually erred in two
regards: first, by failing to consider the POMS guideline, and second, by
finding that Moore's conditions did not medically equal Listing 12.05C. The
Court concludes that both arguments are without merit. The ALJ stated that
she determined that Moore's "mental impairments, considered singly and in
combination, do not meet or medically equal" the criteria for Listing 12.05.
T29. The fact that the ALJ did not mention the POMS guideline does not
mean the ALJ failed to consider it. More importantly, the ALJ determined
that Moore did not have the requisite deficits in adaptive functioning to
satisfy Listing 12.05C, thus precluding any finding of medical equivalence.
SSA regulations do not define "deficits in adaptive functioning." Courts,
however, have interpreted the phrase to mean the "inability to cope with the
challenges of ordinary everyday life. If you cannot cope with those challenges,
you are not going to be able to hold down a full-time job." Novy v. Astrue, 497
F.3d 708, 710 (7th Cir. 2007) (citation omitted); accord Talavera, 697 F.3d at
153. Examples include "activities of daily living," such as the abilities to live
independently, maintain a residence, shop, cook, and maintain appropriate
grooming and hygiene. 20 C.F.R. Part 404, Subpart P, Appx. 1, § 12.00C(1);
see also, Cox v. Astrue, 495 F.3d 614, 618–19 (8th Cir. 2007); Chunn v.
Barnhart, 397 F.3d 667, 669, 672 (8th Cir. 2005). Courts also look to
claimants' social functioning, their ability to maintain concentration,
persistence, or pace, and their work experience. Cox, 495 F.3d 614, 618–19.
The ALJ properly considered these factors and found that Moore lacked
the deficits in adaptive functioning necessary to meet Listing 12.05C. The
ALJ acknowledged Moore's early educational difficulties and the fact that she
had been diagnosed as mildly mentally retarded, but correctly noted that the
listing requires more than a label or diagnosis. T30; Cox, 495 F.3d at 618 n.4
(medical and legal standards for mental retardation are not identical); cf.
Maresh, 438 F.3d at 899 (listing does not require formal diagnosis of mental
retardation). And the ALJ determined these factors were outweighed by the
following considerations: Moore was able to live independently, perform all
her activities of daily living without assistance, drive, cook, and clean, and
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take care of her four step-grandchildren once a week. The ALJ found no
evidence that Moore required assistance in meeting social norms or
functioning in society. Finally, the ALJ noted that Moore had previously
worked at the level of substantial gainful activity in several positions
classified as "semi-skilled" under the Dictionary of Titles (DOT). T30.
Considering the initial evidence before the ALJ, the Court finds that
substantial evidence supported the ALJ's determination that Moore did not
possess the requisite deficits in adaptive functioning to meet Listing 12.05C.
Compare, Hancock v. Astrue, 667 F.3d 470, 475–76 (4th Cir. 2012) (listing not
met where claimant worked several jobs, shopped and paid bills, took care of
three small grandchildren, and was attending school to obtain GED); Novy,
497 F.3d at 710 (claimant lived independently, took care of three children
without help, and paid her own bills); Cox, 495 F.3d at 618–19; with,
Christner v. Astrue, 498 F.3d 790, (8th Cir. 2007) (remanding for ALJ to
consider whether claimant met Listing 12.05 where he dropped out of school
in sixth or eighth grade, attended special education classes, was unable to
read or write, and did not live independently); Chunn, 397 F.3d at 669.
The ALJ did not explain why she also found that Moore's other mental
impairments, considered together with her intellectual disability, did not
equal Listing 12.05C. But as long as the overall conclusion is supported by
the record, there is no prejudicial error when an ALJ fails to explain why an
impairment does not equal a listed impairment. Boettcher, 652 F.3d at 863.
And the Court finds that, even considering Moore's other impairments,
substantial evidence supported the ALJ's conclusion that Moore did not
possess the requisite deficits in adaptive functioning.
Moore points to evidence showing that she had difficulty maintaining
concentration and focus, as a result not only of her intellectual disability but
also her attention deficit disorder, depression, and anxiety. For example, in
March 2010, APRN Leonard noted that Moore's attention span and
concentration were "severely impaired." T182. But Grosse's notes show that
by early 2011, Moore's attention had improved with medication. T300, 306.
And Shundoff—whose opinion, as the Court discusses below, the ALJ
afforded considerable weight—concluded that although Moore was easily
sidetracked, she had the ability to sustain the concentration and attention
needed for task completion, and could carry out simple instructions under
ordinary supervision. T194.
Certainly, Moore's other impairments had some effect on her ability to
cope with the challenges of everyday life. This is borne out by Moore's
statements, at the hearing, and in her reports to multiple treatment
providers over nearly 2 years. Moore claimed that her frequent nightmares
and depression left her exhausted. And her mood swings and panic attacks
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made it difficult not only for her to work her previous jobs, but even to
socialize with her family and to go driving or shopping. But, as the Court will
discuss further in connection with Moore's next argument, the ALJ found
that Moore's statements regarding the intensity, persistence, and limiting
effects of her symptoms were not entirely credible. T32. Moore has not
challenged this finding, and the ALJ's credibility determination was
supported by proper reasoning and substantial evidence. So, the Court defers
to the ALJ's credibility determination. See Gonzales, 465 F.3d at 895–96.
Thus, Moore's other self-reported symptoms and limitations—such as her
irritability, mood swings, and panic attacks—likewise fail to establish
The ALJ also noted that despite her emotional problems and difficulty
with social functioning, Moore was able to maintain a rapport with Grosse
over many months, to care for four step-grandchildren, and to maintain a
friendship. T30, 34. And Moore was able to reach out to her husband and
aunt for help with her panic attacks. Charette v. Astrue, 508 Fed. Appx. 551,
554 (7th Cir. 2013) (ability to reach out for help undermines claim of adaptive
deficits). Finally, although Moore's full-scale IQ score of 72 was within the
range of IQ scores contemplated by POMS § DI 24515.056, the ALJ noted
that this score came with a caveat. T30. The evaluator noted that Moore
tended to give up easily and may have been more capable than she appeared.
T294. And as the POMS guideline also provides, generally, the higher the IQ,
the less likely it is that medical equivalence will be found. POMS § DI
24515.056(D)(1)(c). In sum, the Court finds that substantial evidence
supports the ALJ's finding that the totality of Moore's conditions did not
equal Listing 12.05C.
Moore also argues that the ALJ erred by improvising her own
definition for "deficits in adaptive functioning," rather than applying one of
the standards recognized by one of the four major professional organizations
dealing with intellectual disability. See Barnes v. Barnhart, 116 Fed. Appx.
934, 942 (10th Cir. 2004). Specifically, Moore argues that the ALJ should
have used the criteria set forth in the DSM-IV, which requires significant
limitations in adaptive functioning in at least two of several skill areas, such
as communication, self-care, self-direction, work, education, or safety. DSMIV at 41–43.
As noted above, Social Security regulations do not define "deficits in
adaptive functioning." Moore's argument derives from comments made by the
Commissioner that accompanied a 2002 revision to the Listing of
Impairments. Technical Revisions to Medical Criteria for Determinations of
Disability, 67 Fed. Reg. 20,018 (April 24, 2002). At that time, the
Commissioner rejected a proposal that the DSM-IV's diagnostic criteria for
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intellectual disability be used for Listing 12.05. 67 Fed. Reg. at 20,022. The
Commissioner noted that the definition for intellectual disability used in the
listings was "consistent with, if not identical to, the definitions . . . used by
the leading professional organizations. The four major professional
organizations in the United States that deal with MR [mental retardation]
have each established their own definition of [mental retardation]." Id.
However, unlike those organizations, the SSA's definition is used not for
diagnostic purposes, but to determine eligibility for disability benefits. Id. So,
Listing 12.05 "establishes the necessary elements, while allowing use of any
of the measurements methods recognized and endorsed by the professional
organizations." Id. (emphasis supplied).
Moore relies on Barnes v. Barnhart, in which the Tenth Circuit
expressed concern regarding the lack of a precise definition of "deficits in
adaptive functioning," and regarding what it saw as the ALJ's decision to
"improvise" his own definition. 116 Fed. Appx. at 936, 942. So, the court
remanded with directions that the ALJ choose and apply "a standard
consistent with the Commissioner's directive," such as that found in the
DSM-IV. Id. at 942.
However, other courts, including the Eighth Circuit, have not required
the use of criteria endorsed by outside organizations. Instead, as noted above,
courts have interpreted "deficits in adaptive functioning" to refer to a
claimant's inability to cope with the challenges of everyday life. See,
Talavera, 697 F.3d at 153; Novy, 497 F.3d at 710; see also Charette, 508 Fed.
Appx. at 553 (rejecting argument identical to Moore's). And while the Eighth
Circuit has not explicitly adopted this definition, it has consistently applied
it—rather than a specific set of diagnostic criteria—in cases addressing
Listing 12.05. See, e.g., Cheatum, 388 Fed. Appx. at 576–77; Cox, 495 F.3d at
618–19; Chunn, 397 F.3d at 669, 672; see also Maresh, 438 F.3d at 899
(rejecting attempt by Commissioner to use DSM-IV criteria to show that
claimant did not meet Listing 12.05); cf. Cox, 495 F.3d at 618 n.4 (the medical
and legal standards for intellectual disability are not identical).
In sum, because the ALJ examined Moore's ability to cope with the
challenges of everyday life, she applied the correct legal standard. And
reviewing the record under that standard, the Court finds that substantial
evidence supported the ALJ's determination that Moore did not meet or
medically equal Listing 12.05C.
II. Moore's GAF Scores
Moore next argues that the ALJ erred in "disregarding" her
consistently low GAF scores, and in failing to explain what evidence the ALJ
relied upon in determining that Moore's functioning was higher than
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suggested by these scores. The Court finds no error in the ALJ's methodology,
explanation, or conclusion.
First, the ALJ did not disregard or ignore Moore's GAF scores. The ALJ
explicitly stated that she had considered the fact that Moore had received
multiple GAF scores below 50. T35. But the ALJ reasoned that such scores
were primarily a clinical tool for use by mental health professionals, and did
not correspond directly to the criteria used to establish disability. T35. So, the
ALJ stated that she had relied instead upon the narrative reports containing
the actual opinions of the various treatment providers and other sources, as
these were "more applicable to a function-by-function assessment of the
claimant's functional capabilities." T35. This statement immediately followed
a discussion of the relevant opinions, contradicting Moore's claim that the
ALJ failed to cite to specific evidence in support of her decision.
The ALJ acted reasonably in relying on the record as a whole and in
affording greater weight to the actual opinions of the various sources in the
record. A GAF score is "a subjective determination that represents the
clinician's judgment of the individual's overall level of functioning." Jones v.
Astrue, 619 F.3d 963, 973 (8th Cir. 2010). While GAF scores may be helpful in
assessing disability, they are not essential to determining an individual's
RFC. Id. The DSM-IV itself makes clear that a given score may have little
bearing on the subject's occupational functioning. Id. That is because a GAF
score measures both a person's symptom severity and their functioning, and
always reflects the worse of the two. DSM-IV at 32–33. So, "the GAF rating
for an individual who is a significant danger to self but is otherwise
functioning well would be below 20." Id. at 33. The difference between a GAF
score and an assessment of a claimant's ability to work is illustrated by
Shundoff's report, which the ALJ afforded considerable weight. T35. Shundoff
assigned Moore a GAF score of 40–45, which, considered alone, could suggest
major or serious impairments in functioning that would prevent Moore from
working.9 Yet Shundoff opined that Moore was more or less capable of
performing the basic mental tasks associated with working, albeit with some
The Commissioner has explicitly recognized that GAF scores have no
direct correlation to the severity requirements of the SSA's mental disorders
listings. Jones, 619 F.3d at 973–74; see also Revised Medical Criteria for
Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg.
50746, 50764–65 (Aug. 21, 2000). Thus, the ALJ may afford greater weight to
other medical evidence and testimony than to GAF scores when the evidence
As noted above, GAF scores in the ranges of 31 to 40 and 40 to 50 suggest the possibility of
"major" and "serious" impairments in social and occupational functioning, respectively, and
are consistent with an inability to keep a job. See DSM-IV at 34.
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requires it. Jones, 619 F.3d at 974; see also Goff v. Barnhart, 421 F.3d 785,
791 (8th Cir. 2005). Here, the ALJ correctly reasoned that the specific
findings of Shundoff and other sources were more relevant to the ultimate
issue under consideration—not the severity of Moore's symptoms, but the
effect of those symptoms on her ability to work. In short, the ALJ was not
required to assign any particular weight to Moore's GAF scores, and did not
err in finding other evidence to be more probative.
More broadly, the Court understands Moore to be arguing that the RFC
assessment was not supported by substantial evidence, in that it did not
reflect the serious or major impairment in Moore's ability to work suggested
by her GAF scores. Again, the Court finds no error in this regard. Instead,
the Court concludes that, based on the evidence available at the hearing, the
RFC assessment was supported by substantial evidence.
The ALJ relied primarily upon the reports of Shundoff and Bruning
Brown. T35. As discussed above, Shundoff generally concluded that while
Moore's conditions caused her difficulty, she could still work. T194. Bruning
Brown's findings were similar. Bruning Brown found that Moore had either
no significant limits, or only moderate limits, in her "basic mental work
activities," T33, such as the ability to understand and remember very short
and simple instructions; to work in coordination or proximity to others
without being distracted by them; and to get along with coworkers without
distracting them or exhibiting behavioral extremes. T259–60. Bruning Brown
explained that while Moore would have some limitations on her ability to
work, they would not prevent Moore from completing a full work day. T261.
The Court finds that these opinions provided substantial evidence for the
There were two other principal sources of evidence that related to
Moore's ability to work and suggested greater limitations: (1) an opinion from
Winchester in June 2010; and (2) Moore's self-reported limitations, as
expressed at the hearing, in disability reports, and to various treatment
providers. The ALJ considered both and determined that Winchester's
opinion should be afforded little weight and that Moore's statements were not
entirely credible. T31–36. Moore has not argued that the ALJ erred in either
of these determinations, and on the evidence before the ALJ, the Court sees
no error in either decision.10
In June 2010, Winchester wrote in a brief report that Moore's
depression and anxiety "interfered with [her] ability to work at this time" and
concluded that Moore could only work a few days a week, for a few hours a
The Court finds it appropriate to review these determinations even in the absence of any
objection by Moore. If nothing else, this review is helpful to the Court's analysis of the effect
of Moore's new evidence. See part III, infra.
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day, in a "very low stress situation." T223. The ALJ stated that she carefully
considered Winchester's opinion but decided to give it little weight. First, the
ALJ noted that Winchester's opinion was inconsistent with Shundoff's. T35.
As a psychologist, Shundoff was an "acceptable medical source." Social
Security regulations distinguish between "acceptable medical sources" and
"other sources." The latter include both medical and non-medical sources.
Sloan v. Astrue, 499 F.3d 883, 888 (8th Cir. 2007); 20 C.F.R. § 404.1502.
Acceptable medical sources include, among other things, licensed physicians
and licensed or certified psychologists. Sloan, 499 F.3d at 888; § 404.1513(a).
"Other" medical sources include, inter alia, physician assistants and nurse
practitioners, such as Winchester. Sloan, 499 F.3d at 888; § 404.1513(d).
Shundoff's status as an acceptable medical source was a factor that the ALJ
was entitled to consider in affording her opinion greater weight. SSR 06–3p,
71 Fed. Reg. 45,593, 45,596 (Aug. 9, 2006).
The ALJ also reasoned that Winchester's opinion was undermined by
subsequent progress notes showing that Moore's condition improved in
response to medication. T35. This reasoning finds support in the record.
Shortly after Winchester issued her opinion, she changed Moore's prognosis
from "guarded" to "good." T217–21. And by the next month, Moore reported
that while her attention and focus were still poor, they had improved with
medication, and that she had also seen improvement in her mood swings.
T217, 219, 220.
It is true that Moore's improvement was modest at first. Winchester
referred Moore to Grosse in July 2010 because of a lack of responsiveness to
Winchester's medication regime. T281. And when Grosse first met Moore and
performed a diagnostic evaluation, Moore's difficulty focusing was readily
apparent. Grosse noted that the interview became too long for Moore's
attention span and that she had difficulty sitting still. T283–84. This was
despite the fact that Moore claimed the Strattera was still helping with her
attention and focus. T281.
But Moore continued to improve with treatment. By November 2010,
Moore reported that her medications were working "'really well,'" that her
mood swings and nightmares had improved, and that although she was
stressed her mood was "'pretty good.'" T273. Moore still reported trouble
focusing but stated that her attention had improved in response to new
medication. T273. Grosse agreed that Moore's symptoms had improved, and
noted that her motivation was within normal limits and that she was coping
well with her anxiety. T273.
From December 2010 to February 2011 there was some worsening of
Moore's symptoms. T300–307. But Grosse noted that Moore was having
difficulty affording her medications at that time. Despite this, Moore reported
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she was "not doing too badly,'" denied depression, claimed her focus was still
improved, and while some of her medications caused her difficulty sleeping,
she did not report any nightmares. T300–307. And by February, Grosse
observed that Moore's focus was improved, that her energy and motivation
were within normal limits, and that she had only mild overt anxiety. T300.
Finally, by the time of the hearing in May 2011, Moore had obtained financial
assistance for her medications and was taking them as prescribed. T331–32.
In short, there is substantial evidence in the record to support the
ALJ's finding that from the time of Winchester's opinion in June 2010,
Moore's condition continued to improve. This provided the ALJ with a proper
basis to afford greater weight to Shundoff's opinion. It is the ALJ's role to
resolve conflicts among the opinions of various experts, Renstrom v. Astrue,
680 F.3d 1057, 1065 (8th Cir. 2012), and substantial evidence supported the
ALJ's decision to afford Shundoff's opinion greater weight.
The Court likewise finds that, on the record before the ALJ, substantial
evidence supported the determination that Moore's statements regarding her
symptoms were not entirely credible. T32. The credibility of a claimant's
subjective testimony is primarily for the ALJ to decide. Vossen v. Astrue, 612
F.3d 1011, 1017 (8th Cir. 2010). The ALJ's credibility determination must be
upheld if the ALJ provides good reasons for discounting the claimant's
subjective complaints—such as inconsistencies in the record or the factors set
forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)—and those
reasons are supported by substantial evidence. Gonzales, 465 F.3d at 895–96.
Here, the ALJ considered the appropriate factors and provided several
legitimate reasons for her credibility assessment.
First, the ALJ found that "[a]lthough the claimant's steady work
history bolsters some of the credibility of her complaints, her past relevant
work at the semi-skilled level negates the credibility of her allegations of
limitations from being mildly mentally retarded." T33. Second, while Moore's
anxiety and mood swings imposed some limits on her social functioning, the
ALJ found that the record did not support Moore's "testimony of paranoia
and agoraphobia." T34. In other words, the ALJ found Moore's statements
regarding her panic attacks—which she claimed could be triggered by
driving, being around a lot of people, and being at work—to be not entirely
The ALJ likewise determined that Moore's irritability and mood swings
would not interfere with Moore's social functioning to the extent that it would
entirely preclude her from working. The ALJ pointed to the fact that Moore
was able to maintain a rapport with her medical providers (and in particular,
Grosse) and relate well to Shundoff during their meeting. T34; see 191, 277.
Finally, the ALJ discounted Moore's claims regarding her inability to
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concentrate and focus. T34–35. The ALJ again noted that Moore's abilities in
this area improved with medication. T32–34. And the ALJ found it significant
that Moore was able to maintain attention sufficiently to watch her four stepgrandchildren once a week, use a computer to communicate with her
daughter, and shop without assistance. T34.
It is important to note, however, that the ALJ apparently found
Moore's subjective complaints to be credible in many respects. This is
reflected in the ALJ's assessment of Moore's RFC. The ALJ limited Moore to
simple, routine, and repetitive tasks in a low stress environment, defined as
requiring only occasional decision-making and occasional changes in the work
setting. Additionally, Moore was limited to work involving no interaction
with the public and no more than occasional contact with coworkers. T31.
These limitations show that the ALJ carefully considered and accounted for
the effects of Moore's anxiety, mood swings, intellectual disability, and
difficulty concentrating, and the threat that stressful situations would
exacerbate her conditions. On the other hand, the ALJ did not believe that
Moore would need to take a nap every day during work, or that Moore's
irritability would make her impossible to work with, or that Moore's panic
attacks would occur with such severity and regularity as to preclude
In sum, the Court finds that the ALJ properly weighed the evidence
and assessed Moore's credibility. The ALJ did not have the opportunity to
review Grosse's new report, which as the Court explains next, may have
affected the ALJ's assessment of Moore's credibility and resulted in a
different RFC and a different outcome. However, based on the initial
evidence that was available, the RFC determination was supported by
III. Moore's Post-Hearing Evidence
Finally, Moore argues that the Appeals Council erred in determining
that the new evidence she presented (Grosse's September 2011 report) was
not material. And, Moore asserts, when this evidence is considered, the ALJ's
conclusion is no longer supported by substantial evidence, and this case
should be reversed and remanded for further consideration. The Court finds
that the Appeals Council did err in this determination, and that a remand is
warranted. But rather than determine whether the ALJ's opinion is still
supported by substantial evidence, the Court finds that the ALJ should
decide, in the first instance, what weight to give Grosse's opinion.
SSA regulations provide that
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[i]f new and material evidence is submitted, the Appeals Council
shall consider the additional evidence only where it relates to the
period on or before the date of the administrative law judge
hearing decision. The Appeals Council shall evaluate the entire
record including the new and material evidence submitted if it
relates to the period on or before the date of the administrative
law judge hearing decision.
20 C.F.R. § 404.970(b). Thus, if a claimant files additional medical evidence
with a request for review prior to the date of the Commissioner's final
decision, the Appeals Council must consider the additional evidence if the
additional evidence is new and material. Whitney v. Astrue, 668 F.3d 1004,
1006 (8th Cir. 2012).
To be "new," evidence must be more than merely cumulative of other
evidence in the record. Lamp v. Astrue, 531 F.3d 629, 632 (8th Cir. 2008).
And evidence is "material" if it is relevant to the claimant's condition for the
time period for which benefits were denied. Id. To be material, there must
also be a reasonable likelihood that consideration of the evidence would have
changed the Commissioner's determination. Meyer v. Astrue, 662 F.3d 700,
705 (4th Cir. 2011); Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003)
(same); see also Padgett v. Shalala, 9 F.3d 114, at *2 (8th Cir. 1993)
(unpublished table decision); cf. Krogmeier v. Barnhart, 294 F.3d 1019, 1025.
(8th Cir. 2002) (applying same standard to new evidence received for first
time by court under 42 U.S.C. § 405(g)). Whether evidence meets these
criteria is a question of law the Court reviews de novo. Bergmann v. Apfel,
207 F.3d 1065, 1069 (8th Cir. 2000).
Here, the Appeals Council stated that it had examined Grosse's report,
but determined that the ALJ "decided your case through May 25, 2011. This
new information is about a later time. Therefore, it does not affect the
decision about whether you were disabled beginning on or before May 25,
2011." T8. In other words, the Appeals Council found that the new evidence
was not material.
This finding was incorrect; Moore's evidence was both new and
material. Grosse's report was new, as it was not merely cumulative of other
evidence in the record. Other than Winchester, no person who had treated
Moore had provided any opinion as to her ability to work. Grosse's report was
also much more detailed than Winchester's, and provided a longitudinal
picture of Moore's functioning over a significantly longer time frame. The new
evidence also satisfied the first materiality prong, as it related to Moore's
mental conditions that were the subject of her disability claim, and it
concerned the effect of those conditions during the relevant time period. That
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the report was written following the ALJ's decision is not dispositive of
whether it is material. Williams v. Sullivan, 905 F.2d 214, 216 (8th Cir.
1990). Medical evidence obtained after the ALJ's decision is material if it
relates to the claimant's condition on or before the date of the ALJ's decision.
Id. The report clearly states that it concerns Moore's condition from July
2010 onward. T16.
The report also satisfies the second materiality prong. There is a
reasonable possibility that, were the ALJ to have considered Grosse's opinion,
she may have found Moore disabled. When Grosse's report is considered,
Winchester no longer stands alone in opining that Moore had greater
limitations than found by the other sources. The ALJ also gave Winchester's
opinion little weight because of the improvement reflected in the notes of
Winchester and Grosse. But Grosse's report potentially casts doubt on the
extent or sustainability of any improvement. The new evidence may also have
affected the ALJ's determination of Moore's credibility. As discussed above,
the ALJ found that Moore's claimed limitations were at least partially
supported by the record, and therefore the ALJ must have found Moore
somewhat credible. Grosse's report provides further support for Moore's
claims, and could bolster her credibility such that the ALJ would have found
additional limitations warranted.11 In short, "the picture presented to the
ALJ is significantly altered by the additional evidence." Bergmann, 207 F.3d
The Eight Circuit has stated that where the Appeals Council fails to
consider new and material evidence, it may be a basis for remand by a
reviewing court. Whitney, 668 F.3d at 1006. The Court finds that a remand is
appropriate in this case. The Appeal Council's conclusion that the report did
not relate to the relevant time period—which is contradicted by an
examination of the report—demonstrates that the Council failed to consider
the substance of the evidence. See Box v. Shalala, 52 F.3d 168, 172 (8th Cir.
1995). This Court would therefore be placed in the position of being the first
to make factual findings regarding Grosse's opinion and whether it can be
reconciled with the other evidence in the record. Meyer, 662 F.3d at 707. But
It is true that Grosse, like Winchester, was an APRN and thus not an acceptable medical
source. However, opinions from "other" sources such as Grosse are "important and should
be evaluated on key issues such as impairment severity and functional effects, along with
the other relevant evidence in the file." SSR 06–3p, 71 Fed. Reg. at 45,595. And in some
cases, after weighing the appropriate factors, an opinion from a non-acceptable medical
source may be entitled to even more weight than the opinion of a treating physician. Id.
at45,596. Grosse saw Moore many more times and over a greater period than any other
source in the record. And while her report consists only of a checklist form and a brief
explanation, the same is true of the opinion of Bruning Brown, who never met Moore, and
whose opinion the ALJ gave significant weight. T35.
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"[a]ssessing the probative value of competing evidence is quintessentially the
role of the fact finder[,]" and it is not appropriate for this Court to usurp that
role. Id.; see also Williams, 905 F.2d at 217 (factual determinations within
the agency's expertise are best left to the Commissioner).12
The Court therefore finds that this case should be remanded to the
Commissioner.13 If the Commissioner decides that an award of benefits is not
appropriate, the case should be remanded to the ALJ for further proceedings.
See Lamp, 531 F.3d at 633 (court may remand directly to ALJ for
consideration of evidence that Appeals Council failed to consider). In that
event, the ALJ should consider the effect, if any, of the new evidence on the
ALJ's previous findings regarding Moore's credibility, the weight to afford to
the opinions of the various sources in the record, and ultimately, Moore's
RFC. The ALJ should also consider whether this report affects the
determination that Moore has failed to demonstrate the requisite deficits in
adaptive functioning necessary to medically equal Listing 12.05C.
The Court has reviewed the administrative record and finds that the
ALJ did not err in any of the ways asserted by Moore. The Court also finds,
however, that the Appeals Council erred in failing to properly and fully
consider the new and material evidence submitted by Moore. Accordingly,
IT IS ORDERED:
This case is reversed and remanded to the Commissioner
for further proceedings consistent with this opinion.
A separate judgment will be entered.
The Court therefore rejects the invitation by both parties to analyze the new evidence
under the standard of review typically used when the Appeals Council properly considers
evidence and declines review. Filing 22 at 27–29; filing 28 at 19–20. In such a case, the
Court would determine whether the record as a whole, including the new evidence,
provided substantial evidence in support of the ALJ's determination. Cunningham v. Apfel,
222 F.3d 496, 500 (8th Cir. 2000). In this case, however, the question is not whether the
ALJ's opinion would still be supported by substantial evidence if Grosse's opinion is
considered, but whether there is a reasonable possibility the ALJ's opinion would have been
materially different, had Grosse's opinion been available.
The remand will be pursuant to sentence four of § 405(g). Boyd v. Astrue, 2009 WL
856699, at *4 (E.D. Ark. 2009); see also Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir.
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Dated this 30th day of September, 2013.
BY THE COURT:
John M. Gerrard
United States District Judge
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