Patsios v. Colvin
Filing
30
MEMORANDUM AND ORDER that 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. (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DEBRA D. PATSIOS,
Plaintiff,
4:13-CV-3134
vs.
MEMORANDUM AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
This matter is before the Court on the denial, initially and upon
reconsideration, of plaintiff Debra D. Patsios' application for 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. For the reasons discussed below, the Commissioner's decision is
reversed and remanded for further proceedings consistent with this opinion.
I. PROCEDURAL BACKGROUND
Patsios applied for disability insurance benefits in June 2010. T51,
1 Her claim was denied initially and on reconsideration. T51–69. Patsios
118.
appealed and requested a hearing before an administrative law judge (ALJ).
T72–73. The ALJ held a hearing on January 30, 2012. T27–50. In a decision
dated April 16, 2012, the ALJ found that Patsios was not disabled as defined
under 42 U.S.C. §§ 416(i) or 423(d), and therefore not entitled to benefits.
T11–21.
Disability, for purposes of the Social Security Act, is defined as the
inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months. 42 U.S.C. §§ 416(i) & 423(d).
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
All citations to the administrative record (filings 16 through 16-10) are given as "T
[Transcript]" followed by the page number.
1
step one, the claimant has the burden to establish that she has not engaged
in substantial gainful activity since her alleged disability onset date. Cuthrell
v. Astrue, 702 F.3d 1114, 1116 (8th Cir. 2013). 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. Id.
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. 20 C.F.R. § 404.1520(a)(4). A claimant's RFC is what she can do despite
the limitations caused by any mental or physical impairments. Toland v.
Colvin, 761 F.3d 931, 935 (8th Cir. 2014). At step four, the claimant has the
burden to prove she lacks the RFC to perform her past relevant work.
Cuthrell, 702 F.3d at 1116. 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.; Jones v. Astrue, 619 F.3d 963, 971
(8th Cir. 2010).
Patsios alleged disability primarily as a result of depression and bipolar
disorder.2 T13, 51, 53. She alleged a disability onset date of June 24, 2009.
T118. The ALJ found that, based on her earnings record, Patsios could
remain insured through December 31, 2014. Thus, the question before the
ALJ was whether Patsios had demonstrated that she was disabled for some
period of not less than 12 months from between June 24, 2009 to December
31, 2014.
At step one, the ALJ found that Patsios had not engaged in substantial
gainful activity following her alleged onset date. Next, at step two, the ALJ
found that Patsios' bipolar disorder and depression were medically
determinable, severe impairments. At step three, the ALJ found that Patsios'
conditions did not meet or medically equal a listed impairment. T13–15.
Patsios also experiences problems with her left shoulder. T13, 51, 53. The ALJ accounted
for this in determining Patsios' RFC, and Patsios does not argue that the ALJ erred in this
aspect of the decision. So, the Court will not discuss Patsios' shoulder condition or the ALJ's
associated findings in any detail.
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The ALJ then determined that Patsios had the RFC to perform medium
work, except that she was limited to simple, routine, repetitive tasks
requiring occasional interaction with the public. T15. At step four, the ALJ
found, based upon interrogatories submitted to a vocational expert ("VE"),
that Patsios lacked the ability to perform her past relevant work. The VE
stated that Patsios could not perform her past work as a machine operator
because of her shoulder, and could not perform any of her other past work
because the positions all involved more than occasional interaction with the
public. T19–20, 260. However, at step five, the ALJ found that Patsios could
perform other jobs that existed in significant numbers in the national
economy. T20–21. This was based on the VE's statement that an individual
with Patsios' RFC could perform the representative jobs of lab equipment
cleaner, meat checker, and counter supply worker. T261. So, the ALJ found
that Patsios was not disabled. T21.
On May 16, 2013, after receiving additional evidence (T275–83, 455–
85), the Appeals Council of the Social Security Administration denied Patsios'
request for review. T1–4. Patsios' 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).
II. 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. Bernard v. Colvin, 774 F.3d 482, 486 (8th Cir. 2014).
Where, as here, the Appeals Council denies review of an ALJ's decision after
reviewing new evidence, the Court does not evaluate the Appeals Council's
decision to deny review, but rather determines whether the record as a whole,
including the new evidence, supports the ALJ's determination. McDade v.
Astrue, 720 F.3d 994, 1000 (8th Cir. 2013). In such cases, the Court must
evaluate how the ALJ would have weighed the new evidence had it existed at
the initial hearing. Bergmann v. Apfel, 207 F.3d 1065, 1068 (8th Cir. 2000).
Substantial evidence is less than a preponderance but is enough that a
reasonable mind would find it adequate to support the conclusion. Bernard,
774 F.3d at 486. 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.
Id.; Whitman v. Colvin, 762 F.3d 701, 706 (8th Cir. 2014). 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. Bernard, 774 F.3d at 486.
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III. FACTUAL BACKGROUND
A. Patsios' Prior Mental Health History and the Alleged Onset Date
Patsios' claim for benefits, and her arguments on appeal, are addressed
primarily at her depressive symptoms. Patsios has a long history of
depression. On her alleged onset date, she was 53 years old. T32. Patsios
experienced her first depressive episode when she was a teenager, and these
have occurred off and on for her entire life. She also has a history of
hospitalization for depression and thoughts of suicide, beginning as a
teenager and later in 1997 and 1999. T284, 312. From about 1997 to 2001,
Patsios received Social Security disability benefits due to her depression. T34,
129, 285.
Eventually Patsios' condition improved, and she was able to return to
work. T312. From approximately 2002 to 2009, she worked in a variety of
positions. Patsios worked part-time as a pizza delivery driver from late 2002
to early 2003, and thereafter worked more or less full-time as a machine
operator, convenience store cashier, and retail customer service manager.
T151, T215–24.
At the hearing before the ALJ, Patsios explained why she selected a
disability onset date of June 24, 2009. At that time, a back surgery that went
wrong left Patsios' husband paralyzed from the waist down, and she took
family medical leave from her job to help him. T33, 35. Patsios explained
that, around that time, she began to experience "deep depression" and felt
that she "just couldn't handle everything anymore" and "was having a lot of
trouble dealing with everything." T35, 150. Eventually, her family medical
leave ran out, and she did not return to her job. She tried working again in
January 2010 as a bookkeeper, but she was fired after about 2 months
because she was unable to "remember and do the job." T13, 35, 312.
B. Patsios' Symptoms and Activities of Daily Living
At the hearing before the ALJ, Patsios described the impact of her
mental illness on her ability to function. Her testimony generally matched
her reports to treatment providers for the period under consideration. Patsios
explained that she had little energy, could not maintain focus or attention,
and was forgetful. T31, 40–42, 312. She cried easily and felt depressed most
days out of a month. T40–41. Patsios stated that she had mood swings which
made her irritable, and she generally wanted to stay away from other people.
T40–41, 230. And she experienced thoughts of suicide once or twice a month.
T41.
Patsios also described her daily activities. Again, this testimony
mirrored her responses in disability questionnaires submitted throughout the
period under consideration. Patsios was the primary caregiver for her
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grandson, who was 9 years old at the time of the hearing. T32, 284, 311.
Caring for him involved making him breakfast and getting him ready for
school, then helping with his homework at night, making dinner, and getting
him ready for bed. T39–40. Patsios cooked simple meals and performed basic
household chores. T226. Patsios' husband had a caregiver who helped him
during the day, but Patsios helped him overnight. T12, 40, 361. Although she
went grocery shopping, she had help, and she also received help making sure
she took her medications properly. T282, 440. She did not engage in any
social activities, although, as discussed below, she participated in mental
health day services at Goodwill Industries about twice a week. T226. Patsios
liked to crochet and quilt, and would do so for about 1 hour a day. T37, 228.
Otherwise she would watch television for 4 to 6 hours a day. T37, 228.
C. Medical and Disability Records: 2010 Through 2012
In April 2010, Patsios began receiving mental health treatment. She
received medication management on a monthly basis from Linda Berry,
APRN, and attended counselling with a therapist twice a month.3 T45, 284,
312. Prior to her first visit with Berry, Patsios had not been taking any
psychotropic medications for the preceding 4 years. And although she had
previously met with a psychiatrist, she had also not seen him in the
preceding 4 years. T284, 312.
Patsios told Berry that her depression had worsened in the past 2 to 3
months and reported experiencing fatigue, sadness, decreased motivation and
interest, and low energy. T284. Upon mental status examination, Berry noted
that Patsios' memory was intact, she was alert and oriented, and maintained
fairly good eye contact, but that Patsios was tearful, her mood was depressed,
and her affect was flat. T286. Berry diagnosed Patsios with Bipolar I
Disorder, most recent episode depressed, and rated her Global Assessment of
Functioning (GAF) as 50.4 T286. From April 2010 until June 2010, Berry
3
The record does not include any notes from Patsios' therapist.
A GAF is "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-TR"). The GAF scale is divided into ten ranges of functioning,
from 0 to 100, with a score of 100 representing superior functioning. Id. at 32–34. A GAF of
41 to 50 signifies serious symptoms, such as thoughts of suicide, or any serious impairment
in social, occupational, or school functioning (e.g., no friends, unable to keep a job). DSMIV-TR at 34.
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continued to assess Patsios' GAF as 50. But in August, she raised it to 55 to
60.5 T367–70.
From April 2010 through the remainder of the period for which records
are available (until April 2012), Patsios met with Berry on roughly a monthly
basis. Throughout that period, Berry prescribed Patsios various combinations
and dosages of psychotropic medications, including anti-depressants and
mood stabilizers, in an effort to find a medication regime that would control
Patsios' symptoms without causing unmanageable side effects. See T285,
359–70, 430–64.
Throughout that same period, Patsios continued to attend twicemonthly therapy sessions with the same counselor. T45, 312. Patsios also
attended day services at Goodwill Industries. T312, 412. This involved
working in small groups to address her depression and to overcome her
tendency to isolate herself from other people. T37. At first, her
communication and participation were minimal and she was noted to have a
negative attitude. T421–22. But she attended an average of 2 days a week
from 2010 to 2012. T412. And as time progressed, she was noted to be
participating well in the treatment and working toward recovery. T412–15.
In August 2010, Patsios met with Krista K. Fritson, Psy.D, for a
consultative examination. Patsios described similar symptoms of depression,
such as an inability to focus. She also reported feelings of anxiety, and that
she often felt overwhelmed due to financial stressors and her inability to
work. T312. Upon mental status examination, Fritson noted that Patsios'
mood appeared to be depressed and her affect was congruent. But the
examination was otherwise essentially normal. For example, Patsios was able
to communicate effectively and had good eye contact, and there was no sign of
memory impairment. T313. Like Berry, Fritson diagnosed Patsios with
Bipolar I Disorder. T314. But in contrast to Berry, who rated Patsios' GAF as
falling between 50 and 60, Fritson assigned a GAF of 40.6 T314. Additionally,
Fritson provided an assessment of Patsios' ability to work, which the Court
will discuss in greater detail below.
From September 2010 to January 2011, Patsios continued her meetings
with Berry. Berry continued to adjust Patsios' medications, but Patsios
continued to report similar symptoms of depression. Throughout this period,
A GAF of 51 to 60 signifies moderate symptoms or moderate difficulty in the same areas of
functioning (e.g., few friends, conflicts with peers or coworkers). DSM-IV-TR at 34.
5
A GAF of 40 is associated with some impairment in reality testing or communication or a
"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-TR at 34.
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Berry assessed Patsios' GAF as 55 to 60. T359–65. In January 2011, Patsios
reported she was not attending services at Goodwill and was isolating herself
from her family. She rated her depression as 7 out of 10 and was experiencing
some thoughts of suicide. T359.
In February 2011, Patsios was voluntarily admitted for 5 days'
inpatient treatment, due to worsening depression and thoughts of suicide.
Patsios stated that her medications were not helping. She reported that she
was extremely anxious and felt overwhelmed taking care of her husband and
grandson, that she was unable to focus, and there were many days where she
could barely do anything. T371–72, 377. The day after she was admitted,
Patsios met with Ahsan Naseem, M.D., who assessed her GAF as 30 and
noted that Patsios exhibited avoidant eye contact, deficits in concentration
and attention; and was slow to respond to questions.7 T373. During her
discharge several days later, she met with Kavir Saxena, M.D., who noted
that Patsios was "fairly stable," but that she had "struggle[ed] with
depression and feeling[s] of being out of control and overwhelmed"
throughout her stay in the hospital. T371. At discharge, Saxena rated
Patsios' GAF as 50. T371.
Patsios met with Berry again in May 2011 and reported that she was
"seeing some light at the end of the tunnel" and was not feeling quite as sad.
T452. Berry assessed her GAF as 50 and continued to work with her to find a
combination of medications that worked. T451–52. However, on June 9, 2011,
Patsios was placed in emergency protective custody and hospitalized for
about 2 weeks after she attempted suicide by overdosing on one of her
prescriptions. T389–90, 397. She reported symptoms similar to her last
admission. T399. On June 13, she met with Hugo Gonzalez, M.D., who
assessed her GAF as 25. T400. At discharge, Patsios was noted to be calm,
cooperative, and compliant with her medications, and Gonzalez rated her
GAF as 65.8 T397.
When Patsios next met with Berry in July 2011, Berry tried prescribing
a different anti-depressant, Effexor (venlafaxine). T448–49. From then until
the hearing before the ALJ in January 2012, Patsios continued to take
A GAF of 21 to 30 signifies serious impairment in communication or judgment, such as
suicidal preoccupation, or "inability to function in almost all areas (e.g., stays in bed all day;
no job, home, or friends)." DSM-IV-TR at 34.
7
A GAF of 61 to 70 signifies that while a person has some mild symptoms (e.g., depressed
mood and mild insomnia) or some difficulty in social or occupational functioning, they are
"generally functioning pretty well" and have "some meaningful interpersonal relationships."
DSM-IV-TR at 34.
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Effexor, although the dosages were adjusted. Berry also continued to adjust
Patsios' separate mood-stabilizing medications. See T430–56. Through
September 2011, Berry continued to rate Patsios' GAF as 50, and noted on
mental status examination that while she was pleasant and cooperative and
maintained good eye contact, she had a depressed mood and flat affect. T439–
49. Beginning in October, however, Patsios began to report some
improvement in her depressive symptoms and mood stability, which
continued through December 2011. And for the first time, Berry noted that
Patsios' mood was either mildly depressed or neutral, with an affect that was
neutral or within normal limits. T432–37. However, in two January 2012
visits to Berry, Patsios again reported increased depression and mood
lability. T430–31, 455–56. Throughout this period, Berry continued to rate
Patsios' GAF as 50. T430–37, 455–56. On January 26, 2012, shortly before
the hearing before the ALJ, Berry filled out a "Medical Source Statement" in
which she gave her opinion of Patsios' condition and level of functioning.
T424. Berry's opinion will be discussed in greater detail below.
Following the hearing before the ALJ, Patsios submitted several new
records to the Appeals Council. These include several more notes from visits
to Berry. These notes show that through February and March 2012, Patsios
continued to report increased depression. But in April, Patsios showed
improvement, denying depression and stating that her mood had improved.
458–64. Throughout this period, Berry continued to rate Patsios' GAF as 50.
T458–64.
IV. ANALYSIS
The ALJ found that Patsios had the RFC to perform medium work,
except that she was limited to simple, routine, repetitive tasks requiring
occasional interaction with the public. T15. In arriving at this determination,
the ALJ afforded "great weight" to Fritson's August 2010 opinion. T19.
Conversely, the ALJ gave "no weight" to Berry's January 2012 opinion. T19.
Patsios argues that the ALJ erred in rejecting Berry's opinion. As a result,
Patsios contends, the ALJ failed to incorporate all of the limitations caused
by her impairments into her RFC, thereby undermining the ALJ's step five
finding that Patsios was able to perform other work.
The Court has carefully reviewed the record as a whole and the ALJ's
reasoning for discounting Berry's opinion. The Court finds that the ALJ's
reasoning does not find substantial support in the record and that the ALJ
erred in entirely rejecting Berry's opinion. Similarly, the Court finds errors in
the ALJ's broader determination of Patsios' RFC. Therefore, this case will be
remanded for further consideration. The Court begins its analysis with an
examination of Fritson's and Berry's opinions.
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A. Fritson's August 2010 Opinion
In assessing Patsios' then-current functioning, Fritson wrote that
Patsios should be able to maintain social functioning and relate appropriately
to others, and remember and carry out simple and complex instructions
under normal supervision; that she had adequate concentration and
attention, and that she would not have difficulty adapting to changes in life
or structure. T313. Despite these generally positive comments, Fritson
assessed Patsios' current GAF as 40 and gave the following prognosis:
Prognosis is guarded for Debra from a mental health standpoint.
She appears to have significant depressive symptoms that affect
her daily functioning and ability to maintain duties of
employment and relationships consistently. Her history of
depression and mania suggest that her symptoms exacerbate
under stress and she is likely having another episode of major
depression, though no mania is currently evident. Debra has been
responsive to treatment in the past to the point she was fully
employed for a few years, and she is motivated to feel better
again. Continued [d]ay [t]reatment, support and psychotherapy
are recommended.
T314.
Fritson also responded to a brief questionnaire asking various "yes" or
"no" questions related to Patsios' ability to work. T315. Fritson wrote that
Patsios had restrictions in her activities of daily living, in that she had low
energy and motivation and felt too overwhelmed and tired to complete
everyday tasks. Fritson again noted that Patsios' symptoms would
deteriorate under stress, and stated that her symptoms had worsened since
her husband's paralysis. And Fritson found that while Patsios had some
irritability, she could relate appropriately to coworkers and supervisors, she
could sustain concentration and attention for task completion, and she could
understand and carry out short and simple instructions under normal
supervision. T315.
B. Berry's January 2012 Opinion
In a January 26, 2012 "Medical Source Statement," Berry gave her
opinion of Patsios' condition and level of functioning. By that time, Berry had
met with Patsios about 16 to 20 times, over the course of their more-or-less
monthly meetings since April 2010. T424. Berry assessed Patsios' current
GAF as 50, which Berry also rated as her highest GAF for the past year.
T424. The remainder of the form reflected Berry's findings not for Patsios'
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current functioning, but for the entire period of their treatment relationship.
T424.
Berry noted that Patsios had exhibited the following signs and
symptoms: appetite disturbance with weight change, sleep disturbance,
personality change, mood disturbance, emotional lability, pervasive loss of
interests, feelings of guilt or worthlessness, difficulty thinking or
concentrating, social withdrawal or isolation, flat affect, decreased energy,
manic syndrome, and irritability. T424–25. Berry stated that Patsios had
achieved "moderate" control of her disorder with her medications, but that
she nonetheless had moderate restrictions in her activities of daily living,
moderate difficulties in maintaining social functioning, and moderate
deficiencies in concentration, persistence, or pace. T426.
In another portion of the form, Berry rated Patsios' ability to do workrelated activities on a day-to-day basis in a regular, full-time work setting.
The form used ratings ranging from "unlimited or very good," to "good," "fair,"
and "poor or none." T427. "Good" was defined as a limited but satisfactory
ability to function. "Fair" meant that an ability to function was "seriously
limited, but not precluded." And "poor to none" meant that there was "[n]o
useful ability to function." T427.
Berry rated as "good" Patsios' abilities to understand, remember, and
carry out very short and simple instructions, and to work in coordination
with or proximity to others without being unduly distracted. Berry rated as
"unlimited or very good" Patsios' abilities to ask simple questions or request
assistance and to get along with coworkers or peers without unduly
distracting them or exhibiting behavioral extremes. Berry assessed as "fair"
Patsios' abilities to interact appropriately with the general public, maintain
socially acceptable behavior, and function independently. T428–29.
But Berry rated as "poor or none" Patsios' abilities to maintain
attention for a two-hour segment; maintain regular attendance and be
punctual within customary, usually strict tolerances; sustain an ordinary
routine without special supervision; complete a normal workday and
workweek without interruptions from psychologically based symptoms;
perform at a consistent pace; accept instructions and respond to criticism
from supervisors; respond appropriately to changes in a routine work setting;
and deal with normal work stress. And Berry opined that Patsios similarly
had poor or no ability to handle detailed instructions and deal with the stress
of semiskilled and skilled work. T428–29.
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C. The ALJ's Reasoning
The ALJ credited Fritson's findings that Patsios could carry out short
and simple instructions and relate appropriately to coworkers and
supervisors. T19. These findings, the ALJ explained,
are consistent with [Fritson's] examination report that indicated
the claimant had only moderate limitations in her mental health
functioning. They are consistent with the fact that [Patsios]
provides care for her grandson, which indicates she is capable of
completing tasks and having some social interaction. They are
consistent with [Patsios'] report that she does some household
chores, which indicates she is capable of completing simple tasks.
Therefore, these opinions are afforded great weight.
T19. The ALJ acknowledged that Fritson had found some restrictions in
social functioning, activities of daily living, and episodes of deterioration, but
that these did not keep Patsios from performing simple, routine, repetitive
tasks with no more than moderate limits in social functioning. T19.
In weighing Berry's opinion, the ALJ stated:
NP [Nurse Practitioner] Berry opined that the claimant had
significant limitations in several areas of mental functioning. An
advanced practicing registered nurse is not an acceptable medical
source under Social Security Regulations . . . . Furthermore,
these opinions are inconsistent with the GAF score of 65 assessed
when the claimant was discharged from inpatient treatment in
June 2011 (Exhibit B15F). They are inconsistent with her daily
activities that include caring for her grandson and performing
household chores, which show[] she can concentrate to complete
tasks and she can have social interaction. Therefore, these
opinions are afforded no weight.
T19.
D. Berry's Status As an "Other Source"
As the ALJ noted, Berry was an APRN, and therefore not what Social
Security regulations refer to as an "acceptable medical source." Social
Security regulations distinguish between "acceptable medical sources," and
"other sources" which, in turn, include medical and non-medical sources.
Sloan v. Astrue, 499 F.3d 883, 888 (8th Cir. 2007); 20 C.F.R. §§ 404.1502,
404.1513(a), (d). Acceptable medical sources include, among other things,
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licensed physicians and licensed or certified psychologists. Sloan, 499 F.3d at
888; 20 C.F.R. § 404.1513(a). As to "other sources," medical sources include,
inter alia, physician assistants and nurse practitioners, and non-medical
sources include welfare agency personnel, family, friends, and neighbors.
Sloan, 499 F.3d at 888; 20 C.F.R. § 404.1513(a).
While other sources cannot establish the existence of a medically
determinable impairment, they may "provide insight into the severity of the
impairment(s) and how it affects the individual's ability to function." Social
Security Ruling ("SSR") 06-03p, 71 Fed. Reg. 45593-03, 2006 WL 2263437
(Aug. 9, 2006).9 In SSR 06-03p, the Social Security Administration
acknowledged that with the growth of managed health care and emphasis on
containing medical costs, medical sources who are not acceptable medical
sources play an increasing role in treating and evaluating claimants. Id.
Opinions from these sources 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." Id.
Opinions from other medical sources should be evaluated using the
same factors used to evaluate opinions from acceptable medical sources, set
forth in 20 C.F.R. § 404.1527(c). SSR 06-03p, 71 Fed. Reg. at 45595. These
factors include the length of treatment relationship and frequency of
examination, the nature and extent of the treatment relationship (e.g., the
treatment the source has provided and the kinds and extent of examinations
and testing the source has performed or procured), supportability of the
opinion with evidence and explanation, consistency of the opinion with the
record as a whole, and the specialization of the source, as well as any other
relevant factors. 20 C.F.R. § 404.1527(c). Although these factors are useful,
they are not binding on the ALJ, who has greater discretion in dealing with
opinions from other sources. Tindell v. Barnhart, 444 F.3d 1002, 1005 (8th
Cir. 2006).
However, depending on the particular facts in a case, and after
applying the factors for weighing opinion evidence, an opinion
from a medical source who is not an "acceptable medical source"
may outweigh the opinion of an "acceptable medical source,"
including the medical opinion of a treating source. For example,
SSRs do not carry the force of law and are not binding on courts, but courts generally
afford them deference as long as they are consistent with the Social Security Act and its
regulations. Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1224 (9th Cir.
2009); see also Ingram v. Barnhart, 303 F.3d 890, 894 (8th Cir. 2002). However, SSRs are
binding upon ALJs and all components of the Social Security Administration. Grebenick v.
Chater, 121 F.3d 1193, 1200 (8th Cir. 1997); 20 C.F.R. § 402.35(b)(1).
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it may be appropriate to give more weight to the opinion of a
medical source who is not an "acceptable medical source" if he or
she has seen the individual more often than the treating source
and has provided better supporting evidence and a better
explanation for his or her opinion.
SSR 06-03p, 71 Fed. Reg. at 45596.
E. The ALJ Erred in Evaluating Berry's Opinion and in Determining
Patsios' RFC
The ALJ gave several reasons for giving Berry's opinion no weight.
However, the reasons do not stand up to review, and do not find substantial
support in the record. This is not to say that the ALJ necessarily erred in
refusing to give Berry's opinion controlling weight—rather, on the record
before the Court, the ALJ's reasoning does not support her decision to
entirely reject Berry's opinion.
The ALJ first noted that Berry's assessment was inconsistent with the
GAF score of 65 that Patsios received in June 2011 after being discharged
from inpatient treatment. This observation is problematic. First, that score
was assessed after Patsios had been receiving in-patient treatment for
approximately 2 weeks, during which time she had been insulated from the
stressors that prompted her suicide attempt in the first place. See T399. In
addition, this observation overlooks the fact that Berry's opinion could just as
easily be seen as consistent with the GAF of 40 assessed by Fritson, whose
opinion the ALJ afforded "great weight." Moreover, Berry's assessment was
internally consistent with her repeated examinations of Patsios and her
consistent rating of Patsios' GAF in the 50s. Berry's opinion, based on a longterm treating relationship, cannot be discredited by cherry-picking a single
score from a provider who met Patsios once under unique circumstances.
In fact, Berry's opinion was generally consistent with Fritson's opinion.
Like Fritson, Berry opined that Patsios could perform simple work, could
work in coordination with others, and could get along with coworkers and
peers. T315, 426. And Berry's opinion that while Patsios had serious
limitations, she was not precluded from interacting with the general public,
is similar to the ALJ's assessment that Patsios could have occasional
interaction with the public. T15, 429.
The most striking findings in Berry's opinion go to Patsios' ability to
consistently maintain her focus and ability to work, such as the ability to
complete a normal day and week of work without interruptions from
psychological symptoms, and the ability to deal with normal work stress.
T428. These findings address a key aspect of the disability inquiry—whether
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the claimant can perform the functions of work "day in and day out, in the
sometimes competitive and stressful conditions in which real people work in
the real world." Boettcher v. Astrue, 652 F.3d 860, 866 (8th Cir. 2011).
Fritson was not asked to opine on these specific functional abilities. But
on this point too, Fritson's opinion is consistent with Berry's. For example,
Fritson found that Patsios experienced "recurrent episodes of deterioration
when stressed." T315. And Fritson concluded that Patsios was likely in the
grip of an "episode of major depression" that caused "significant depressive
symptoms that affect her daily functioning and ability to maintain duties of
employment and relationships consistently." T314 (emphasis supplied).
Fritson acknowledged that Patsios had "been responsive to treatment in the
past to the point she was fully employed for a few years," but her current
recommendation was to continue with day treatment. T314. Read in context,
this suggests that Fritson believed, at least as of August 2010, that Patsios
was not capable of returning to work. Given the overall consistency between
the opinions of Fritson and Berry, the ALJ did not adequately explain why
she gave great weight to the opinion of Fritson, who saw Patsios only once,
but gave no weight to the opinion of Berry, who saw and treated Patsios
numerous times over a span of nearly 2 years.
The ALJ also found that Berry's opinions were inconsistent with
Patsios' activities of daily living, reasoning that Patsios' ability to care for her
grandson and perform household chores showed she could concentrate to
complete tasks and have social interaction. The Court is not entirely
persuaded that the ability to care for one's own grandson translates into an
ability to function well with the public, coworkers, and supervisors. But that
is not the main thrust of Patsios' claim or Berry's opinion. Berry did not place
significant social limitations on Patsios, with the exception that she believed
Patsios could not accept instructions and respond appropriately to criticism
from supervisors. T428. Rather, the most significant findings in Berry's
opinion were that Patsios would have difficulty maintaining her ability to
function in the normal stress of a work environment. The Court is not
convinced that the daily activities cited by the ALJ undermine those findings.
Taking care of children and running a household may, or may not, be
inconsistent with a finding of disability, or with a lack of certain functional
abilities. But that depends on the facts of the case. Patsios was not taking
care of several pre-kindergarten children and keeping a large house spotless.
She was caring for one 9-year-old and having trouble keeping up with the
chores. Patsios described her child care duties as getting her grandson ready
for school, making him breakfast, helping with homework, making dinner,
and getting him ready for bed. T39–40. For most of the day, however, her
grandson would be in school. This does not approach the demands of
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performing work 8 hours a day, 5 days a week. Patsios had help during the
day caring for her husband, and the record does not show what caring for him
at night involved other than getting up occasionally to help him use the
bathroom. T440. Patsios also described her house cleaning. At least in 2010,
her house was quite small. T182. She would clean "maybe two times a week if
lucky." T226. She did dishes every other day. T226. And she prepared meals,
but this involved "quick and repeat meals that [were] easy" to make. T226.
These sorts of activities do not contradict Berry's finding that Patsios would
have difficulty working consistently, and they certainly provide little support
for a finding that Patsios could perform full-time competitive work. See, e.g.,
Burress v. Apfel, 141 F.3d 875, 881 (8th Cir. 1998).
The ALJ's consideration of Patsios' daily activities was, of course,
entirely proper. And those activities could be viewed as inconsistent with
certain aspects of Berry's opinion—for example, her finding that Patsios
could not maintain attention for a 2-hour segment. T428. But given the lack
of other reasons to discredit Berry's opinion, and its consistency with
Fritson's opinion, this alone does not provide a reasonable basis for entirely
rejecting Berry's opinion, especially when the factors set forth in 20 C.F.R. §
404.1527(c) are considered. Berry had a long-term treatment relationship
with Patsios that spanned most of the period under consideration. Berry
observed Patsios on multiple face-to-face visits, and she was the only source
in the record who saw Patsios more than once. Berry was familiar with the
effects of various medication on Patsios' symptoms. And Berry's opinion was,
as the Court has discussed, consistent with much of the record. In short, the
Court finds that the ALJ erred in entirely rejecting Berry's opinion. This is
not to say that the ALJ was bound to give Berry's opinion controlling
weight—but the reasons provided by the ALJ do not support a decision to
give Berry's opinion no weight. And this error is linked, in turn, to the ALJ's
broader determination of Patsios' RFC, and the ALJ's finding that Patsios'
symptoms were not as debilitating as Patsios alleged. Here too, the Court
finds the ALJ's reasoning unpersuasive.
The ALJ noted that since July 2011, Patsios had been maintained on
Effexor. This, the ALJ reasoned, showed that Patsios "received adequate
control of her symptoms with this medication." T17. There are two problems
with this reasoning. First, it overlooks the fact that Berry had to adjust the
dosage of Effexor, in response to Patsios' complaints that it was not working,
see T437, 459, but also the fact that from July 2011 to January 2012, Berry
prescribed five different mood stability drugs in unsuccessful attempts to
treat Patsios' mood stability and episodes of mania. See T431, 433, 435, 440,
443, 446. Second, the ALJ's reasoning would just as readily imply that for the
period prior to July 2011, Patsios was not receiving adequate control of her
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symptoms. And Berry's notes from that period confirm that Berry was
continually adjusting Patsios' medications in unsuccessful attempts to find a
combination that worked. See T359–70. Perhaps Patsios did achieve adequate
control of her symptoms with Effexor. But to receive benefits, she does not
have to show that she was disabled for the entire period under consideration,
only a continuous period of not less than 12 months.
The ALJ also reasoned that the record did not contain
any medical observations, by any treating psychiatrist or
psychologist, of significant abnormalities or deficits with the
respect to the claimant's mood, affect, thought processes,
concentration, attention, pace, persistence, social interaction,
activities of daily living, speech, psychomotor activity, focus,
contact with reality, eye contact, orientation, demeanor, abilities
to cope with stress, abilities to work without decompensation,
abilities to understand and follow instructions, judgment, insight,
cognitive function or behavior, lasting twelve months in duration,
and despite strict compliance with prescribed treatment.
T17–18.
But Patsios did not have a treating psychiatrist or psychologist. She
received treatment from Berry and therapy from Kristy Judds, who was an
LMHP. T45, 154, 198. And the record strongly suggests that Patsios could not
afford further treatment. T45, 435, 443, 449. So, she can hardly be faulted for
failing to obtain a treatment provider with the highest credentials. As for
medical observations, Berry consistently noted in her mental status
examinations that Patsios had a depressed mood and flat affect. See, e.g.,
T286, 359–70, 439–52. It was only when Patsios began to report somewhat
consistent improvement, in late 2011, that Berry began to record Patsios'
mood as "mildly depressed" and her affect as either "neutral" or "within
normal limits." See T432–37. And Fritson, whose opinion the ALJ found
persuasive, opined that Patsios' ability to cope with stress was impaired.
T314–15. Further objective support is found in Patsios' two admissions for inpatient treatment, prompted by feelings of overwhelming stress and
depression, where she was observed by three different M.D.'s to be suffering
from very serious depressive symptoms. See T371–72, 377, 400.
As the ALJ recognized, Patsios' "fairly good work history" enhanced her
credibility. T18. But this was not the only reason to find Patsios credible.
Patsios' reports of her symptoms were consistent over time and across
providers. Fritson believed that Patsios was "motivated to feel better again."
T314. Fritson recommended that Patsios continue with day treatment and
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psychotherapy. T314. And that is what Patsios did—she attended therapy, as
well as day services with Goodwill, and she worked with Berry to find
medications that would help her symptoms.
That leaves the opinions of the state agency medical consultants. In
September 2010, one consulting psychologist submitted two forms in which
she generally opined that Patsios retained the ability to perform work that
was simple, routine, and unskilled. See T19, 324–25. Another consulting
psychologist affirmed these findings without comment in March 2011. T387.
The ALJ was, of course, entitled to consider and rely upon these reports. See
Vossen v. Astrue, 612 F.3d 1011 (8th Cir. 2010). But generally speaking, the
opinions of consulting professionals who examine a claimant once or not at all
do not constitute substantial evidence on the record as a whole. Singh v.
Apfel, 222 F.3d 448, 452 (8th Cir. 2000). That rule holds true here. These
opinions, rendered early in the period under consideration and without the
benefit of a full record or any contact with Patsios, do not provide a basis for
affirming the ALJ's ultimate findings.
In sum, the Court is unpersuaded by the ALJ's reasoning regarding the
severity of Patsios' symptoms. Together with the improper consideration of
Berry's opinion, this undermines the Court's confidence in the ALJ's
determination of Patsios' RFC. And that may have made a difference at step
five—the VE found that, if Berry's findings were credited, Patsios would not
be able to perform her past work or any other jobs existing in significant
numbers in the national economy. T248–49, 264. In light of the record before
it, the Court cannot say that these errors were harmless, i.e., that the ALJ
would inevitably have reached the same result if she had properly evaluated
Berry's opinion and the extent and effects of Patsios' symptoms. See, e.g.,
Ford v. Astrue, 518 F.3d 979, 982–83 (8th Cir. 2008); Dewey v. Astrue, 509
F.3d 447 (8th Cir. 2007). This case will therefore be remanded for further
proceedings consistent with this Memorandum and Order. On remand, the
Commissioner should reevaluate Berry's opinion and reconsider Patsios' RFC
in light of the factors discussed above.
THEREFORE, IT IS ORDERED:
1.
This case is reversed and remanded to the Commissioner
for further proceedings consistent with this opinion.
2.
A separate judgment will be entered.
Dated this 4th day of March, 2015.
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BY THE COURT:
John M. Gerrard
United States District Judge
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