Titsworth v. Colvin
MEMORANDUM AND ORDER granting 14 Motion for an Order Reversing the Commissioner's Decision; denying 17 Motion to Affirm Commissioner's Decision ; The decision of the Commissioner is reversed; This action is remanded to the Social Security Administration for an award of benefits. Ordered by Senior Judge Joseph F. Bataillon. (ADB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MEMORANDUM AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
reconsideration, of his application for disability benefits under 42 U.S.C. § 405(g), see Filing
No. 14 (Plaintiff’s Motion to Reverse) and Filing No. 17 (Defendant’s Motion to Affirm).
The administrative record (“Admin. R.”) has been filed with the court. Filing Nos. 8-1
to 8-8, 9-1 to 9-5, and 10-1 to 10-6. Titsworth applied for disability benefits on February 12,
He alleges he is disabled by reason of mental illness—Major Depression and
Posttraumatic Stress Disorder (“PTSD”). He alleges an onset date of December 31, 2013.
At the time of his alleged onset, he was fifty-three years old.
He has a high school
education. He served in the United States military from 1978 to 1980 and was the victim of
a sexual assault.
Titsworth’s application was denied initially and on reconsideration. He appealed the
determination and requested a hearing before an administrative law judge (“ALJ”). The ALJ
On January 23, 2017, Nancy A. Berryhill was appointed the Acting Commissioner of Social Security.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit.
held a hearing on April 4, 2016. In a decision dated April 27, 2016, the ALJ found that
Titsworth was not disabled and therefore not entitled to benefits. Id. at 192. On June 17,
2016, the Appeals Council of the Social Security Administration (“SSA”) denied Titsworth’s
request for review. Id. at 1. Titsworth seeks review of the ALJ's decision as the final
decision of the Commissioner under sentence four of 42 U.S.C. § 405(g).
Testimony at Administrative Hearing
A transcript of the hearing is found in the record at Admin. R. 32 to 68. Titsworth
testified that all of his past work since the military was as a self-employed painter with
minimal interaction with supervisors and customers. Id. at 39-41. He stated his income
dropped off significantly in 2014 because he was “turning down jobs because I just couldn’t
do it.” He testified that “[t]he anxiety about even going to bid a job was overwhelming” and
related he had constant nightmares, depression and he could not function. Id. at 43-44. He
also testified that when he did work in 2014, the work did not go well because he had
problems working with someone watching him, so he would take breaks for 15-20 minutes
to calm down, leave early, or show up late. Id. at 45-47. He reported he could not do a job
with even minimal interaction with others because he would still have to deal with people
and would miss work. Id. at 60-64. He testified he had trouble even painting a friend’s
house because of his severe anxiety. Id.
Titsworth testified that he sought treatment for his psychiatric condition in late 2013
or early 2014 because he was suicidal. Id. at 42. He testified he had planned to go turkey
hunting, and would shoot himself under the chin with a shotgun. Id. at 43. He reported
getting depressed and stated on a bad day he could not get off the couch, but would “sit
and look at the floor.” Id. at 48.
References are to consecutive page numbers on the bottom right of each page.
He also reported panic attacks, a rapid heartbeat, profuse sweating, and flashbacks
of a sexual assault he suffered in the military. Id. at 49-50. He stated he averaged three or
four flashbacks a week. Id. at 49. He also testified to nightmares that cause poor sleep and
stated he requires a nap during the day. Id. at 50-51. He stated he used small quantities of
marijuana about three or four times a month for sleep because it worked better than
medications he had been prescribed for sleep. Id. at 53-55. He further testified he had tried
to adjust multiple medications and medication levels, but was sensitive and couldn’t take
many medications. Id. at 55.
He stated he attended group therapy four days a week for a while but, because it
was difficult for him to bring up the incident, his anxiety and depression worsened. Id. at 57.
He testified he had been seen by his psychiatrist once a month beginning in early 2014, but
had reduced the frequency of his visits to every six weeks by the time of the hearing. Id. at
53. He stated he still experiences episodes of rage and “goes off.” Id. at 46, 53. At a
recent job, he stated he missed work, showed up late, left early and took multiple breaks
because of anxiety. Id. at 47.
A vocational expert (“VE”) also testified at the hearing. He was asked whether a
hypothetical worker with past relevant work as a painter who “has some functional limits, no
exertional limits,” and “is able to perform work that is simple and to respond appropriately to
routine changes in a work environment[,]” and “to perform work that does not require
working in tandem or as a partner or in close coordination with others, and the worker is
able to perform work that does not involve more than brief, superficial, and incidental
interaction with the public” could find work in the national economy. Id. at 59. The VE
testified such a hypothetical worker could find jobs in the national economy as an industrial
cleaner, night janitor, or production welder.
Id. at 60.
The VE also testified that an
individual who needed to take a break twice an hour for 5 to 10 minutes, or was absent five
days per month, or was off-task thirty percent of the work day would not be able to find
competitive employment. Id. at 66-67.
Titsworth has been diagnosed with major depression and PTSD.
He has been
treated for several years at Veterans’ Administration (“VA”) facilities. His diagnoses are
supported by notes and opinions in the record from psychiatrists, psychologists, and
licensed clinical social workers. The record shows Titsworth sought treatment complaining
of nightmares, flashbacks, poor sleep, depression, anxiety, irritability, anger, an
exaggerated startle response, hyper-vigilance, episodes of rage, and problems with
concentration and short-term memory.
His medical providers have prescribed multiple
psychiatric medications during the course of his care. He is presently taking bupropion,
buspirone, sertraline, topiramate, and propranolol.3 Id. at 1237
Titsworth was treated at a VA facility by Dr. Willcockson, a psychologist, in January
2014. Id. at 808-815. Titsworth told Dr. Willcockson he had a history of sexual assault
while on active duty in the military in 1978. He stated he did not report the incident at the
time, nor did he seek medical attention because he felt uncomfortable and “he didn’t trust
anyone at the time and still doesn’t.” Id. at 809. He reported his symptoms included
nightmares, high anxiety, low stress tolerance, sleep problems, and fear of crowds. Id. He
reported nightmares of rape on a daily basis but does not remember the details of the
dreams, and stated he had recurrent, intrusive thoughts at least once per week. Id. He
Bupropion is prescribed for Major Depressive Disorder; buspirone is an antianxiety agent; sertraline
is an antidepressant in the class of selective serotonin reuptake inhibitors; topiramate is an anticonvulsant with
off-label use for alcohol dependence, bulimia and eating disorders; and propranolol is a beta-blocker prescribed
stated he was unable to talk about his military experiences with anyone. Id. He reported
problems with fatigue, motivation, exaggerated startle responses, and problems with
concentration and short term memory. Id. at 810. Dr. Willcockson diagnosed Titsworth with
PTSD secondary to experience of military sexual trauma. Id. at 812.
In April 2014, Titsworth began treatment with Dr. Joanna E. Faryna, his treating
psychiatrist at the VA.
He reported flashbacks, hypervigilance, and anger.
diagnosed PTSD. The record shows Dr. Faryna treated Titsworth on a monthly basis. See
generally id. at 1237 (indicating frequency of treatment); 463-467, 491-494, 508-511; 559562, 590-592, 603-606; 622-625, 634-637, 650-653, 662-665, 669-672, 681-684, 689-691,
695-698, 701-705; 732-735, 739-742, 750-753; 952-955, 960, 968; 1000-1003, 1036-1038,
1046-1048; 1125-1128, 1159-1162; 1191, 1217-1219. In June 2014, Titsworth reported to
Dr. Faryna that his condition had gotten worse.
Id. at 732-735.
He reported he was
sleeping more but having more violent dreams of sexual nature and fantasies of killing
Titsworth also underwent group psychotherapy, but was noted to be withdrawn and
noncooperative and walked out of the group. Id. at 680. At various times he reported
problems with fatigue, motivation, concentration and short term memory, and exaggerated
startle responses, flashbacks, and intrusive thoughts. The record shows Titsworth missed
appointments, left early, or showed up late. Id. at 610 (“Veteran was late to apt today,
stating he has been getting his appointments confused”); 968 (Titsworth called in saying he
would not be in for groups stating, “I’m too depressed”); 1159 (Titsworth failed to appear for
appointment, having “made the decision to go out of town in an impulsive manner.”)
He also reported worsening symptoms in June 2014 to clinical social worker, Ms.
Erinn Tighe. Id. at 730-732. He stated he was concerned about his medications and
reported “seeing light spots again” and “dark shapes along the floor.” Id. at 730. Titsworth
again reported worsening symptoms in August 2014. Id. at 681-82. He again admitted to
suicidal thoughts. Id. at 670. Dr. Faryna increased the dose of topiramate and continued
him on sertraline and risperidone. Id. at 682.
On September 26, 2014, Titsworth again met with clinical social worker Erinn Tighe.
Id. at 660-662. He reported anger outbursts. In October 2014, Ms. Tighe noted Titsworth
had stopped going to AA meetings. Id. at 638-640. Titsworth stated “[h]e has not been able
to get off the couch,” and reported having nightmares and “larger ‘hallucinations’ in
peripheral vision.” Id. at 638-40.
In November 2014, Titsworth reported to Dr. Faryna he was feeling depressed and
did not feel he was getting any better. Id. at 634-637. Dr. Faryna noted Titsworth “may
have some visual illusions” but not “true visual hallucinations.” Id. at 634. In February 2015,
Dr. Faryna again noted Titsworth was not doing well, had poor motivation, and was
spending a lot of time on the couch. Id. at 590-592. He reported anxiety, panic attacks,
occasional hallucinations, seeing shapes of “blobs” and sometimes the shape of a person,
and hearing noises but not voices. Id. at 590.
In March 2015, Titsworth reported problems with rage. Id. at 527-533. Titsworth
began participating in group therapy and attended most of his scheduled groups, but on
occasion he left group early because he was feeling anxious. Id. On March 25, 2015,
Titsworth asked to meet with social worker, Ms. Colleen Evans.
Id. at 500-502.
reported he had not been eating or sleeping well. Id. Two days later, Titsworth contacted
the VA and reported feeling depressed, anxious, stressed, and suicidal. Id. at 495-497. He
later met with Dr. Faryna and reported he “blew up” at the nurses/staff at Bergan Mercy
Hospital the day before and indicated that he was surprised he did not get arrested. Id. at
492. On March 30, 2015, Titsworth reported being “afraid to get off the couch” and missing
meals. Id. at 487. He also reported difficulty making decisions. Id.
In April 2015, Titsworth reported lack of sleep due to nightmares and so much
anxiety he was unable get off the couch. Id. at 455-456. Group therapy notes indicate
Titsworth had not engaged in group discussion and left group early, appearing to struggle
with the topics discussed. Id. Titsworth sat with his head down and did not participate in
group discussion. Id. at 969-970. He missed another appointment, stating he was “too
depressed.” Id. at 968. In August 2015, Titsworth reported to Dr. Faryna his depression
had worsened and he stated he could not “get off the couch.” Id. at 1046-1048. Dr. Faryna
noted he was more anhedonic and more unmotivated. Id. at 1046.
On January 5, 2016, Titsworth reported to Ms. Evans that he was having increased
anger and incidents of rage. Id. at 1152. He also reported increased nightmares which are
usually related to his sexual assault. Id. Other evidence in the record shows Titsworth is
prone to rage and anger outbursts and is limited in his ability to recognize hazards. See,
e.g., id. at 491-494 (indicating Titsworth “blew up” a the nursing staff and “he is surprised
that he did not get arrested”); 564-576 (Titsworth had suicidal thoughts and stated he was
“close to pulling the trigger”); 681-684 (Titsworth got lost driving in St. Louis on his way back
from Illinois even though he had been there many times before and normally knows his way
around the city); 943-946 (Titsworth reported he “raged on a guy”); and 1152 (Titsworth
became angry with another driver and got out of his car to confront the person).
Veterans Administration Rating
Titsworth also applied to the VA for a service connected disability. See id. at 178.
On June 19, 2014, Titsworth underwent a Veterans Administration Compensation and
Pension (“C&P”)4 examination for PTSD conducted by clinical psychologist John P. Engler,
Dr. Engler found Titsworth had a diagnosis of PTSD that conformed to DSM-5
criteria based on the examination and also noted “[v]eteran has been given diagnosis of
Unspecified Depressive Disorder in the past which is being considered as part of the PTSD
symptomology at this time.” Id. at 713. He concluded that Titsworth’s level of occupational
and social impairment due to his condition was “[o]ccupational and social impairment with
reduced reliability and productivity”. Id. at 713-714. Dr. Engler also found it “at least as
likely as not the [military sexual trauma] stressor noted in the examination by the veteran of
being held and raped while he was stationed at Chanute AFB and living in the dorm, has
resulted in current PTSD diagnosis and symptoms.” Id. at 726.
On April 29, 2015, Titsworth met with Dr. Matthew Peter for a VA examination. Id. at
943-946. Dr. Peter’s notes show that Titsworth reported persistent symptoms since the
sexual assault 37 years before, and stated the symptoms had worsened over the previous
10 years, “significantly impacting his daily functioning.” Id. at 943. Dr. Peter noted the
assault experience led to pronounced substance abuse and Titsworth’s eventual discharge
from the service. Id. Titsworth reported a suicide attempt in 1980. Id. at 944. Titsworth
described himself as significantly withdrawn from others, unable to associate with friends or
go to AA meetings as a result of anxiety. Id. Titsworth described “pronounced anxiety
occurring daily and often including panic attacks of varying intensity” that had “dissipated
slightly over the past several months with medication but continue to occur more than once
C&P examinations are designed to obtain fundamental information that will be necessary for the final
adjudication of a claim for disability benefits from the VA, including (where appropriate) the application of the
VA Schedule for Rating Disabilities. Kristjanson v. Colvin, No. 16 CV 43 EJM, 2016 WL 6440132, at *2 (N.D.
Iowa Oct. 28, 2016). C&P examinations for PTSD consist of a review of medical history; an assessment of the
traumatic exposure or exposures; evaluations of mental status and of social and occupational function; and a
diagnostic examination, which may include psychological testing or a determination of a Global Assessment of
Functioning (GAF) score. Id.
per week.” Id. at 944. He reported difficulty participating in AA because of hypervigilance
and noting that “I raged on a guy” the last meeting he attended.
Id. at 945. He also
reported seeing moving “grey blobs”. He reported he is often unable to tolerate work
conditions for more than one hour and that he is often engaged in conflict with coworkers
when not working in an isolated setting. Id. Dr. Peter found Titsworth demonstrated a wide
range of symptoms associated with PTSD. Id. He appeared distracted and had difficulty
The VA first found Titsworth fifty-percent disabled as a result of PTSD, but Titsworth
disagreed with that evaluation and sought review by a Decision Review Officer. Id. at 178.
On review the VA increased Titsworth’s disability rating from fifty-percent to one hundred
percent. Id. at 178-221. The rating decision was based on the report from Dr. Peter and on
-Intermittent inability to perform activities of daily living
-Total occupational and social impairment
-Intermittent inability to perform maintenance of minimal personal hygiene
-Memory loss for names of close relatives
-Difficulty in adapting to work
-Neglect of personal appearance and hygiene
-Obsessional rituals which interfere with routine activities
-Near-continuous panic affecting the ability to function independently,
appropriately and effectively
-Difficulty in adapting to stressful circumstances
-Inability to establish and maintain effective relationships
-Difficulty in adapting to a worklike setting
-Disturbances of motivation and mood
-Difficulty in understanding complex commands
-Difficulty in establishing and maintaining effective work and social
-Panic attacks more than once a week
-Impairment of short- and long-term memory
-Mild memory loss
-Chronic sleep impairment
Id. at 179-80.
The VA found the “severity of [Titsworth’s] disability most closely
approximates the criteria for a 100 percent disability evaluation.” Id. at 180
On June 8, 2015, Dr. Patricia Newman, a non-examining state agency psychologist,
completed a Psychiatric Review Technique (“PRT”) and Mental Residual Functional
Capacity (“MRFC”) form for the Social Security Administration. Id. at 73-77. On the PRT,
Dr. Newman opined Titsworth had mild restrictions in activities of daily living, moderate
social limitations, moderate limitations with regard to concentration, persistence or pace,
and no episodes of decompensation.
On September 25, 2015, Titsworth was examined by consulting psychologist
Barbara Eckert, Psy.D. Id. at 1070-1074. Her diagnostic impression was Post-traumatic
Stress Disorder, Major Depressive Disorder Recurrent Severe, and “rule in rule out
antisocial personality disorder.”5 Id. at 1073. She stated:
Mark has a history of PTSD which may continue to be chronic or may
decrease with therapy and medications. His depression may decrease with
treatment. He appears to have limited to poor insight. His substance use is
a negative prognostic indicator. His prognosis is guarded to poor.
She noted Titsworth appeared guarded and irritable and reported that he reached
across the front counter and turned the TV off without permission. Id. at 1072. He was
evasive in his answers and described mood as “pissed off and almost in a rage,” but stated
A “rule-out” diagnosis is not a diagnosis. Amaro v. Astrue, 2011 WL 871474, *4 n. 4 (C.D. Ca. Mar.
14, 2011). In the medical context, a “rule-out” diagnosis means there is evidence that the criteria for a
diagnosis may be met, but more information is needed in order to rule it out. Id.
he was not violent. Id. Titsworth told Dr. Eckert that he had had a few hallucinations and
had seen his dead mother in law in the yard and odd shapes running across the floor. Id.
Dr. Eckert observed mild signs of tension and anxiety and she opined that Titsworth
appeared to have some moderate difficulty with the ability to sustain attention and
concentration for the interview, but stated he could understand, remember, and carry out
short and simple instructions.
Id. at 1073-74. Dr. Eckert wrote “Mark has worked but
denied the ability to relate to supervisors and co-workers. His behavior during our meeting
may be indicative of his inability to get along with others in a work environment.” Id. at
A consulting psychologist, Lee Branham, Ph.D., completed a PRT and a MRFC
form. Id. at 86-90. He relied on the opinion of Dr. Eckert, but concluded that her opinion
was an overestimate of the severity of the individual’s restrictions/limitations and based only
on a snapshot of the individual’s functioning. Id. at 91. On the PRT form, Dr. Branham
indicated Titsworth had mild restrictions in activities of daily living; moderate limitations in
social functioning; moderate restrictions in concentration, persistence or pace; and
insufficient evidence for episodes of decompensation. Id. at 87. In assessing Titsworth’s
mental residual functional capacity, Dr. Branham found Titsworth had moderate limitations
in 8 of 20 categories,6 and opined, “[Titsworth’s] conditions are likely to lead to moderate
limitations in avoid distraction by others and being present and punctual at a job.” Id. at 8990. Further, he stated “[Titsworth’s] stress tolerance is reduced to the point of moderate
Dr. Branham found Titsworth moderately limited in the ability to maintain attention and concentration
for extended periods; to perform activities within a schedule, to maintain regular attendance, and to be punctual
within customary tolerances; to work in coordination with or in proximity to others without being distracted by
them; to interact appropriately with the general public; to accept instructions and to respond appropriately to
criticism from supervisors; to get along with coworkers or peers without distracting them or exhibiting behavioral
extremes; to respond appropriately to changes in work setting; and to set realistic goals or make plans
independently of others.
limitations in adapting to changes in the work environment” and that “[h]is DA/A [drug
addiction/alcoholism] creates moderate limitations in independent planning, in financial and
other areas.” Id. at 90.
Treating Medical Providers
Dr. Faryna, Titsworth’s treating psychiatrist, also submitted a Mental Residual
Functional Capacity assessment form. Id. at 1237-1242. She diagnosed Titsworth with
PTSD, Major Depression and Anxiety Disorder, and assigned a current GAF7 score of 45
with the highest GAF score in the past year of 50. Id. at 1237. She reported Titsworth’s
prognosis was poor. Id. In 12 of 20 work-related functions, Dr. Faryna rated Titsworth’s
ability to function independently, appropriately and effectively as Category IV, meaning his
impairments would preclude performance for 15% or more of the 7.5 hour workday.8 Id. at
1239-40. She indicated Titsworth was at “Category III” (precludes performance for 10% of
the 7.5 hour workday) in the abilities to make simple work-related decisions; to interact
appropriately with the general public; and to maintain socially appropriate behavior and to
The Global Assessment of Functioning (“GAF”) score is the clinician’s judgment of the individual’s
overall level of functioning. See Diagnostic and Statistical Manual of Mental Disorders, DSM–IV-TR, 32 (4th
ed. 2000). A GAF score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no
friends, unable to keep a job). Id. at 34. A new edition of the Diagnostic and Statistical Manual of Mental
Disorders (DSM-V) was released in 2013 and replaced the DSM-IV. The DSM-V “no longer uses GAF scores
to rate an individual’s level of functioning because of ‘its conceptual lack of clarity’ and ‘questionable
psychometrics in routine practice.’” Alcott v. Colvin, No. 4:13-CV-01074-NKL, 2014 WL 4660364, at *6 (W.D.
Mo. Sept. 17, 2014).
These included the abilities to understand, remember, and carry out detailed instructions; to maintain
attention and concentration for extended periods; to perform activities within a schedule, to maintain regular
attendance, and to be punctual within customary tolerances; to sustain an ordinary routine without special
supervision; to work in coordination with or in proximity to others without being distracted by them; to complete
a normal workday or workweek without interruptions from psychologically based symptoms and perform at a
consistent pace without an unreasonable number and length of rest periods; to accept instructions and to
respond appropriately to criticism from supervisors; to get along with coworkers or peers without distracting
them or exhibiting behavioral extremes; to respond appropriately to changes in work setting; to travel in
unfamiliar places or use public transportation; and to set realistic goals or make plans independently of others.
Id. at 1239-40.
adhere to basic standards of neatness and cleanliness. Id. Further, she stated that if
Titsworth were to work, he would likely be “off task” more than 30 percent of a typical work
week, and likely miss on average an estimate of 5 days or more per month. Id. at 1241. Dr.
Faryna reported the medical/clinical findings that supported her assessment were
Titsworth’s “[v]ery low stress tolerance. Severe depression, anxiety, mood swings. Poor
concentration. Poor quality of sleep due to nightmares. Fatigue.” Id. at 1240.
On March 16, 2016, social worker Colleen Evans also submitted a MRFC form. Id.
at 1246-1252. With respect to Titsworth’s prognosis, she stated: “Veteran may struggle with
PTSD for the rest of his life. The intensity and severity of symptoms may change at times,
but will most likely remain indefinitely.” Id. at 1246. Ms. Evans opined if Titsworth were to
work he would likely be “off task” more than 30 percent of a typical work week, and likely
miss on average an estimate of 5 days or more per month. Id. at 1251. Ms. Evans also
wrote the following, “Veteran would be limited in all areas of the workplace due to symptoms
related to PTSD.” Id. at 1250.
The ALJ's Findings
The ALJ found Titsworth is not disabled. Id. at 19. He undertook the familiar fivestep sequential process for determining disability.9
At step one, the ALJ found that
Titsworth had engaged in substantial gainful activity following his alleged onset date, but
nonetheless proceeded to make a determination of disability for the entire period of
See Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir.2005) (“During the five-step process, the ALJ
considers (1) whether the claimant is gainfully employed, (2) whether the claimant has a severe impairment, (3)
whether the impairment meets the criteria of any Social Security Income listings, (4) whether the impairment
prevents the claimant from performing past relevant work, and (5) whether the impairment necessarily prevents
the claimant from doing any other work”) (quotation and citation omitted)).
disability from December 31, 2013, through the date of adjudication.10
Id. at 12. Next, at
step two, the ALJ found that Titsworth's mood disorder and post-traumatic stress disorder
were severe impairments. Id. He stated that Titsworth had also been diagnosed with a
substance use disorder, but found that disorder was neither material nor severe. Id. at 13.
At step three, the ALJ found that Titsworth had no impairment that met or medically equaled
a listed impairment. Id. at 13–14. He considered the criteria in the listings at § 12.04 (for
affective disorders) and § 12.06 (for anxiety-related disorders).11 Id. at 13. The ALJ then
determined that Titsworth had the RFC to ‘perform a full range of work at all exertional
levels but with the following nonexertional limitations:
He can only perform work that does not require him to work in tandem, as a
partner, or in close coordination with others or to engage in more than brief,
superficial, and incidental interaction with the public. He is able to perform
simple work and to respond appropriately to routine changes in a work
Id. at 14. In making this finding, the ALJ discounted the opinions of Titsworth’s treating
mental health practitioners, affording them only “some weight” to the opinions that Titsworth
“is limited in terms of social interaction and performing skilled work.” Id. at 17.
provided the following rationale for giving “little weight to the remaining aspects of Dr.
Faryna’s and Ms. Evans’ opinions”:
The record indicates that the Social Security Administration may have regarded Titsworth’s efforts
as an unsuccessful work attempt. Id. at 12, 84.
Effective January 17, 2017, PTSD is evaluated under a new listing: § 12.15 (trauma and stressorrelated disorders). See 81 FR 66138, 2016 WL 5341732 at *1 (Sept. 26, 2016); 20 C.F.R. Pt. 404, Subpt. P,
App. 1, §§ 12.00(B)(11), 12.15 (text of section 12.00 effective on Jan. 17, 2017). Prior to the effective date of
the new listing, PTSD was evaluated under § 12.06 (anxiety related disorders). See Bittles v. Astrue, 777 F.
Supp. 2d 663, 666 (S.D.N.Y. 2011) (“To meet the required level of severity for PTSD, a claimant must provide
medical documentation for the criteria listed in Section 12.06(A) [diagnostic criteria] and Section
The requirements set forth in the version of § 12.06(A) in effect at the time of the ALJ's decision mirror
the diagnostic criteria of the DSM-IV. Compare § 12.06A (effective Dec. 3, 2013 to Feb. 25, 2014) with DSM-IV
at 327, 332, 335, 357. The current requirements of § 12.15 mirror the diagnostic criteria of the DSM-5. See 81
FR 66138, 2016 WL 5341732 at *1.
(1) although Dr. Faryna and Ms. Evans concluded that the
claimant would miss at least 5 days of work per month, their
notes do not indicate that he ever missed appointments with
medical sources or other important events in his life;
(2) neither Dr. Faryna nor Ms. Evans provided a rationale for
their opinion or identified what objective findings or
observations supported their opinion;
(3) even though Dr. Faryna’s treatment notes do not contain
any findings or observations of decreased concentration or
attention, she opined that he would be off task 30% of the time;
(4) they both indicate he has limits in “recognizing hazards.”
Again, there is no hint in the record that this is so. This
unsupported conclusion tends to detract from the weight they
Id. at 17.
He also discredited Titsworth’s testimony as to the “intensity, persistence and limiting
effects” of complaints of “(1) daily thoughts of suicide; (2) ‘overwhelming’ anxiety; (3)
depression; (4) ‘almost constant’ nightmares; (5) bouts of rage; (6) flashbacks that occur 3
to 4 times each week and last 15 to 30 minutes each; (7) anxiety attacks that last 15 to 30
minutes; (8) poor concentration and memory; (9) paranoia; (10) being easily stressed; and
(11) fatigue.” Id. at 14. Although he found Titsworth’s “medically determinable impairments
could reasonably be expected to cause at least some of the alleged symptoms,” he found
Titsworth’s testimony as to the nature and extent of his symptoms was not entirely credible.
Id. at 15. The ALJ based that finding on certain discrepancies in his tax returns, including
mileage claimed, evidence that Titsworth had cared for his wife, Titsworth’s failure to
mention going to AA meetings at the hearing, lack of evidence of outbursts at group
sessions, and “most importantly” that Titsworth did not seek treatment for his mental
impairments until the end of 2013. Id. at 15-16. Further, he found Titsworth’s reports of
hallucinations had not been reported to his treating mental health practitioners, noting that
“[h]e mentioned them only in [a] setting where his behavior would influence (and increase)
the amount of his VA benefits.” Id. at 16.
The ALJ also afforded little weight to the fact that the VA assigned Titsworth a
disability rating of 100% based on PTSD. Id. at 16-17. He rejected the VA’s finding that
Titsworth has significant functional limitations, but acknowledged there was evidence that
Titsworth “can have difficulties with concentration and social interactions.” Id. He explained
“the undersigned gives little weight to the VA's disability rating primarily because they are
not ‘medical opinions’ in that they do not include conclusions about his specific functional
limitations.” Id. Further, the ALJ noted:
Those statements and ratings are not useful in determining the claimant’s
residual functional capacity because—
(1) The VA applies a different standard and different criteria in
determining whether a claimant will receive benefits;
(2) The ratings are those of an unknown person with unknown
(3) The 100% rating is largely based on an evaluation
conducted by Matthew M. Peter, Psy. D., during which the
claimant's only abnormal behavior was sitting facing the exit;
(4) The explanation for the findings cites many extreme
symptoms, such as memory loss and impaired judgment, that
are not substantiated by other evidence; and
(5) it cites to some symptoms (obsessive rituals, nearcontinuous panic) about which the claimant has not complained
to his medical providers and which are never observed or
mentioned in the voluminous records.
Id. at 17 (citations to record omitted).
At step four, the ALJ found Titsworth unable to perform “his past relevant work as a
painter (DOT #840.381-010), which is classified by the Dictionary of Occupational Titles as
skilled (SVP 7), medium work, … due to its skill level.” Id. at 18. The ALJ went on to find at
step five that Titsworth’s ability to perform work at all exertional levels was compromised by
nonexertional limitations. Id. at 18-19. Based on the testimony of a vocational expert, the
ALJ found there are jobs existing in the national economy for an individual with the
claimant's age, education, work experience, and residual functional capacity. Id. at 19. He
found Titsworth would be able to perform the requirements of representative unskilled,
medium occupations such as an industrial cleaner; night janitor and production welder. Id.
Titsworth argues that the ALJ’s RFC is not supported by substantial evidence
because the ALJ did not properly evaluate his 100 percent disability rating from the VA and
the evidence that supports it. Further, he argues that the ALJ committed legal error in
misinterpreting VA policy and thus discounting the VA determination. Additionally, Titsworth
contends the ALJ failed to properly evaluate the underlying medical opinion from Dr. Peter,
impermissibly ignored Dr. Engler’s opinion, and did not afford appropriate weight to the
opinions of the claimant’s treating mental health providers, Dr. Faryna and Ms. Evans.
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). 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). However, the
court’s review is “more than a search of the record for evidence supporting the
Commissioner’s findings, and requires a scrutinizing analysis, not merely a ‘rubber stamp’”
of the Commissioner’s decision. Scott ex rel. Scott v. Astrue, 529 F.3d 818, 821 (8th Cir.
2008). In determining whether substantial evidence in the record supports the decision, the
court must consider evidence that both detracts from and bolsters the Commissioner’s
decision. Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000) (citations omitted).
The court must also determine whether the Commissioner’s decision “is based on
legal error.” Lowe v. Apfel, 226 F.3d 969, 971 (8th Cir. 2000) (citations omitted). The court
owes no deference to the Commissioner’s legal conclusions. See Juszczyk v. Astrue, 542
F.3d 626, 633 (8th Cir. 2008).
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 he has not engaged in substantial gainful activity since his alleged
disability onset date. Cuthrell v. Astrue, 702 F.3d 1114, 1116 (8th Cir. 2013). At step two,
the claimant has the burden to prove he has a medically determinable physical or mental
impairment or combination of impairments that significantly limits his physical or mental
ability to perform basic work activities. Id. At step three, if the claimant shows that his
impairment meets or equals a presumptively disabling impairment listed in the regulations,
he is automatically found disabled and is entitled to benefits. Id. If not, the ALJ determines
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 he can do despite the limitations caused by any mental or
physical impairments. Toland v. Colvin, 761 F.3d 931, 935 (8th Cir. 2014); 20 C.F.R. §
The ALJ is required to determine a claimant’s RFC based on all relevant
evidence, including medical records, observations of treating physicians and others, and the
claimant’s own descriptions of his or her limitations. Papesh v. Colvin, 786 F.3d 1126, 1131
(8th Cir. 2015). The RFC must (1) give appropriate consideration to all of a claimant’s
impairments, and (2) be based on competent medical evidence establishing the physical
and mental activity that the claimant can perform in a work setting. Mabry v. Colvin, 815
F.3d 386, 390 (8th Cir. 2016).
At step four, the claimant has the burden to prove he lacks the RFC to perform his
past relevant work. Cuthrell, 702 F.3d at 1116. If the claimant can still do his past relevant
work, he will be found not 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.;
see Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010).
The ALJ must give “controlling weight” to a treating physician's opinion if it is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence. Papesh, 786 F.3d at 1132. Even if not
entitled to controlling weight, a treating physician’s opinion should not ordinarily be
disregarded and is entitled to substantial weight. Id. The regulatory framework requires the
ALJ to evaluate a treating sources’ opinion in consideration of factors such as length of
treatment, frequency of examination, nature and extent of the treatment relationship,
support of opinion afforded by medical evidence, consistency of opinion with the record as a
whole, and specialization of the treating source. Id.; see 20 C.F.R. 404.1527(c)(2). “When
an ALJ discounts a treating [source’s] opinion, he should give good reasons for doing so.”
Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007); Jenkins v. Apfel, 196 F.3d 922, 92419
25 (8th Cir. 1999) (stating the ALJ may discount or disregard such an opinion if other
medical assessments are supported by superior medical evidence, or if the treating
physician has offered inconsistent opinions).
Vocational Expert Testimony
To satisfy the burden to show the claimant is capable of performing other work, the
ALJ is generally required to utilize testimony of a vocational expert if the claimant suffers
from nonexertional impairments that limit her ability to perform the full range of work
described in one of the specific categories set forth in the guidelines. Jones, 619 F.3d at
971–72. In order for a vocational expert’s testimony to constitute substantial evidence, the
ALJ must pose a hypothetical question which comprises all of the claimant’s impairments.
20 C.F.R. §§ 404.1520(a)(4)(v); see Taylor v. Chater, 118 F.3d 1274, 1278 (8th Cir. 1997)
(stating that a vocational expert’s testimony may be considered substantial evidence “only
when the testimony is based on a correctly phrased hypothetical question that captures the
concrete consequences of a claimant’s deficiencies”). “When a hypothetical question does
not encompass all relevant impairments, the vocational expert’s testimony does not
constitute substantial evidence.” KKC ex rel. Stoner v. Colvin, 818 F.3d 364, 377 (8th Cir.
2016) (quoting Hunt v. Massanari, 250 F.3d 622, 625 (8th Cir. 2001)) (emphasis added in
The ALJ must evaluate subjective complaints with full consideration to all of the
evidence presented and may not discount a claimant’s allegations solely because objective
medical evidence does not fully support them. O'Donnell v. Barnhart, 318 F.3d 811, 816
(8th Cir. 2003). In evaluating a claimant's allegations, in addition to the objective medical
evidence, an ALJ must consider a claimant's prior work history, observations by third parties
and treating and examining physicians relating to such matters as: 1) the claimant’s daily
activities; 2) the duration, frequency and intensity of the pain; 3) precipitating and
aggravating factors; 4) dosage, effectiveness and side effects of medication; 5) functional
restrictions. Id. Subjective complaints may be discounted if there are inconsistencies in the
evidence as a whole. Jackson v. Apfel, 162 F.3d 533, 538 (8th Cir. 1998). “A claimant’s
allegations of disabling pain may be discredited by evidence that the claimant has received
minimal medical treatment and/or has taken only occasional pain medications.” Singh, 222
F.3d at 453; see O’Donnell, 318 F.3d at 818 (questioning “whether a claimant who is
intentionally exaggerating her symptoms for financial gain would seek out” extensive
treatment and evaluations); Cox v. Apfel, 160 F.3d 1203, 1207 (8th Cir. 1998) (questioning
whether a claimant with many “years of medical records detailing repeated complaints of
severe pain” and treatments for severe pain could be found not credible).
An ALJ cannot rely on the claimant's ability to perform limited functioning during a
period of low stress as substantial evidence that a claimant who sometimes experiences
high stress is not disabled. Hutsell v. Massanari, 259 F.3d 707, 713 (8th Cir. 2001). Given
the unpredictable course of mental illness, “[s]ymptom-free intervals and brief remissions
are generally of uncertain duration and marked by the impending possibility of relapse.”
Andler v. Chater, 100 F.3d 1389, 1393 (8th Cir. 1996). Moreover, “[i]ndividuals with chronic
psychotic disorders commonly have their lives structured in such a way as to minimize
stress and reduce their signs and symptoms.” 20 C.F.R. Pt. 404, Subpt. P., App. 1, §
12.00(E). “Such individuals may be much more impaired for work than their signs and
symptoms would indicate.” Id.
The court finds there is not substantial evidence in the record to support the ALJ’s
finding that Mark E. Titsworth is not disabled. In making his determination, the ALJ relied
on consulting physicians’ and mental health providers’ mental residual functional capacity
assessments and placed little weight on the opinions of Titsworth’s treating practitioners’
The ALJ erred in affording little weight to Dr. Faryna’s opinion regarding
Titsworth's limitations, without giving legally sufficient reasons for doing so. The factors
ALJ’s should consider in weighing medical opinions weigh in favor of granting the treating
physicians’ opinions considerable, if not controlling weight. Dr. Faryna is a specialist with
knowledge of PTSD. She treated Titsworth on a monthly basis for several years. Her
treatment notes are consistent with her opinions. Similarly, Ms. Evans had an extensive
treatment history with Titsworth. She observed him on numerous occasions and her notes
are also consistent with her opinions. Both treatment providers stated that Titsworth had
moderate or marked limitations in areas of functioning that are essential to employment.
Their opinions that Titsworth would likely be off-task thirty percent of the time and was likely
to miss five or more days of work per month are amply supported by the record. The ALJ’s
reliance on Titsworth’s never having missed medical appointments or other important
events in his life is misplaced.
The record shows numerous instances of Titsworth’s
absenteeism or unreliability. Similarly, the record shows Titsworth consistently reported
problems with short-term memory and impaired judgment.
The ALJ similarly failed to afford appropriate weight to the VA’s 100% disability
rating. Although Social Security and VA standards for disability vary, the basis for the VA’s
disability rating dovetail with the Social Security Administration’s functional limitations.
There is considerable congruity between Dr. Peter’s listed disabling traits and functional
criteria the SSA uses to evaluate how a mental disorder limits areas of mental functioning a
person uses in a work setting—as the abilities to understand, remember and apply
information; to concentrate, persist, or maintain pace; and to adapt or manage oneself. The
VA’s examining psychologist’s opinion that Titsworth’s panic affected his ability to function
independently, appropriately and effectively, that he had difficulty adapting to stressful
circumstances and work-like settings, difficulty in understanding complex commands,
impairment of short and long term memory, impaired judgment, chronic sleep impairment,
and difficulty in establishing and maintaining effective work and social relationships were
supported by the record, consistent with the treating physician’s assessment and should
have been considered. Dr. Peter’s findings that Titsworth experienced bouts of anger and
rage that are not compatible with the ability to sustain employment are also documented in
The ALJ also erred in discounting Titsworth’s subjective complaints of disabling
flashbacks, panic attacks and nightmares.
Those symptoms are consistent with his
disorder. The extent of the treatment he sought is comparable to such a level of severity of
the complaints. Also, the ALJ discredited Titsworth’s testimony, in part, because Titsworth
delayed treatment for many years after the traumatizing event, without considering
Titsworth’s reasons for doing so. The record shows Titsworth’s symptoms worsened shortly
before he sought treatment and were triggered by recent events.
obtained extensive treatment, which adds to his credibility. Also, the ALJ’s credibility
determination was based on several factual inaccuracies. There is evidence in the record
that Titsworth had historically reported unusual perceptions and memory loss to doctors
other than Dr. Peter. The implication that Titsworth was exaggerating his symptoms for
financial gain was thus in error.
Because the ALJ failed to appropriately credit the medical evidence and Titsworth’s
testimony of disabling limitations, the ALJ presented a hypothetical to the VE that did not
accurately reflect Titsworth’s impairments and limitations. The VE’s opinion therefore does
not constitute substantial evidence to satisfy the Commissioner’s burden to prove there are
jobs in the national economy that a person with Titsworth’s impairments can perform.
Crediting Titsworth’s testimony with respect to disabling flashbacks, panic attacks, and
bouts of rage, and affording the treating mental health providers opinions substantial, if not
controlling weight, the record supports the finding that Titsworth’s impairments—including
more than five absences per month, a need for frequent breaks, inability to carry out
instructions or appropriately interact with supervisors or co-workers—would preclude
A reversal and remand for an immediate award of benefits is appropriate where the
record overwhelmingly supports a finding of disability. Taylor, 118 F.3d at 1279. The court
finds that “the clear weight of the evidence fully supports a determination [Titsworth] is
disabled within the meaning of the Social Security Act.” See Pate-Fires v. Astrue, 564 F.3d
935, 947 (8th Cir. 2009).
The Eighth Circuit has repeatedly approved of immediately
awarding benefits based on the controlling weight afforded to the opinion of a claimant's
treating medical provider. See id.; Shontos v. Barnhart, 328 F.3d 418, 427 (8th Cir. 2003);
Cunningham v. Apfel, 222 F.3d 496, 503 (8th Cir. 2000); Singh, 222 F.3d at 453; but see
Papesh, 786 F.3d at 1135-36.
Where further hearings would merely delay receipt of
benefits, an order granting benefits is appropriate. Hutsell, 259 F.3d at 714 (8th Cir. 2001).
IT IS ORDERED:
The plaintiff’s motion to reverse (Filing No. 14) is granted;
The defendant’s motion to affirm (Filing No. 17) is denied;
The decision of the Commissioner is reversed;
This action is remanded to the Social Security Administration for an award of
Dated this 16th day of August, 2017.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge
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