Thompson v. Commissioner of Social Security

Filing 20

OPINION AND ORDER. The decision of the Commissioner is reversed and the case remanded for further consideration pursuant to the fourth sentence of 42 U.S.C. § 405(g). A separate Judgment will enter. Signed by Magistrate Judge Charles B Goodwin on 3/31/16. (lb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
TRACY M. THOMPSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-15-288-CG

OPINION AND ORDER
Plaintiff Tracy M. Thompson brings this action pursuant to 42 U.S.C. § 405(g) for
judicial review of the final decision of the Commissioner of the Social Security
Administration (“SSA”) denying Plaintiff’s application for Supplemental Security
Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f.
The Commissioner has answered and filed the administrative record (Doc. No. 11,
1

hereinafter “R. _”).

The parties have consented to the jurisdiction of a United States

Magistrate Judge. Doc. No. 13. Having reviewed the record, including the transcript of
the administrative hearing and the decision of the administrative law judge (“ALJ”), as
well as the pleadings and briefs of the parties, the Court REVERSES the Commissioner’s
decision and REMANDS the case for further proceedings under the fourth sentence of 42
U.S.C. § 405(g).

1

With the exception of the administrative record, references to the parties’ filings use the
page numbers assigned by the Court’s electronic filing system.

PROCEDURAL HISTORY
Plaintiff protectively filed her application for SSI on November 15, 2011, alleging
disability based upon bronchitis, chronic obstructive pulmonary disease, bipolar disorder,
emphysema, seizures, and depression.

R. 169-80.

Following denial of Plaintiff’s

application initially and on reconsideration, a hearing was held before an ALJ. R. 31-86,
93-96, 100-02. The ALJ issued an unfavorable decision on November 27, 2013. R. 1124. The SSA Appeals Council denied Plaintiff’s request for review, making the ALJ’s
unfavorable decision the final decision of the Commissioner. R. 1-4; see also 20 C.F.R.
§ 416.1481. This action for judicial review followed.
ADMINISTRATIVE DECISION
The Commissioner uses a five-step sequential evaluation process to determine
eligibility for disability benefits. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009);
20 C.F.R. § 416.920(a)(4). At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since November 15, 2011, the application date. R. 13; see 20
C.F.R. § 416.971.

At step two, the ALJ determined that Plaintiff had the severe

impairments of “asthma, chronic obstructive pulmonary disease (COPD), affective
disorders, and past alcohol abuse.” R. 13; see 20 C.F.R. § 416.920(c). At step three, the
ALJ determined that Plaintiff’s impairments did not meet or equal any of the
presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1,
including “affective disorders” (listing 12.04) and “substance addiction disorder alcohol”
(listing 12.09). R. 13-14; see 20 C.F.R. § 416.920(d).

2

The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) based on
all of her impairments. R. 15-22; see 20 C.F.R. § 416.920(a)(4)(iv). The ALJ found that
Plaintiff had the RFC to perform medium work, subject to the additional limitations that:
she must avoid hazards, heights, and machinery[;] could perform simple
(SVP 2) unskilled tasks with routine supervision[; and] could have
superficial interaction with coworkers, supervisors, and the public on a
work basis.
R. 15; see 20 C.F.R. § 416.967(c) (defining “medium work”). At step four, the ALJ
found that Plaintiff was unable to perform any past relevant work and that transferability
of job skills was not a material issue. R. 22-23; see 20 C.F.R. §§ 416.965, .968.
At step five, the ALJ considered whether there were jobs existing in significant
numbers in the national economy that Plaintiff—in view of her age, education, work
experience, and RFC—could perform during the relevant time. Relying on the hearing
testimony of a vocational expert regarding the degree of erosion to the unskilled medium
occupational base caused by Plaintiff’s additional limitations, the ALJ concluded that
Plaintiff could perform occupations such as counter supply worker, floor cleaner, and
hand packager, all of which offer jobs that exist in significant numbers in the national
economy. R. 23; see 20 C.F.R. § 416.945(a)(5)(ii). On this basis, the ALJ concluded that
Plaintiff had not been under a disability, as defined in the Social Security Act, at any time
after November 15, 2011. R. 24; see 20 C.F.R. § 416.920(g).
STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision is limited to determining
whether factual findings are supported by substantial evidence in the record as a whole

3

and whether correct legal standards were applied. Poppa v. Astrue, 569 F.3d 1167, 1169
(10th Cir. 2009). “Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Doyal v. Barnhart, 331 F.3d 758, 760
(10th Cir. 2003) (internal quotation marks omitted).

“A decision is not based on

substantial evidence if it is overwhelmed by other evidence in the record or if there is a
mere scintilla of evidence supporting it.” Branum v. Barnhart, 385 F.3d 1268, 1270
(10th Cir. 2004) (internal quotation marks omitted). The court “meticulously examine[s]
the record as a whole,” including any evidence that may undercut or detract from the
ALJ’s findings, to determine if the substantiality test has been met. Wall, 561 F.3d at
1052 (internal quotation marks omitted).

While the court considers whether the

Commissioner followed applicable rules of law in weighing particular types of evidence
in disability cases, the court does not reweigh the evidence or substitute its own judgment
for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
ANALYSIS
Plaintiff sets forth three allegations of error: (1) the ALJ failed to “weigh and
explain” conflicting medical evidence in finding that psychotropic medications
“controlled” Plaintiff’s mental health symptoms; (2) substantial evidence does not
support the ALJ’s RFC determination with respect to Plaintiff’s mental impairments and
limitations; and (3) the ALJ failed to perform a proper credibility determination. See
Pl.’s Br. (Doc. No. 15) at 6, 15-18, 18-20, 20-23. The undersigned finds that Plaintiff’s
first and second arguments are meritorious. Because that deficiency requires remand, the

4

undersigned need not address the remaining claim of error raised by Plaintiff. See
Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
The ALJ’s Relevant Findings
The ALJ found that Plaintiff retained the RFC to perform “simple (SVP 2)
2

unskilled tasks” with “routine supervision” and only “superficial interaction with
coworkers, supervisors, and the public on a work basis.” See R. 15, 22, 24. Unskilled
work is defined by regulation as work that “needs little or no judgment to do simple
duties that can be learned on the job in a short period of time.” 20 C.F.R. § 416.968(a).
An RFC for “unskilled work” necessarily contemplates that the claimant retains the
“abilities (on a sustained basis) to understand, carry out, and remember simple
instructions; to respond appropriately to supervision, coworkers, and usual work
situations; and to deal with changes in a routine work setting.” SSR 85-15, 1985 WL
56857, at *4 (July 1, 1985).
The ALJ did not expressly find that Plaintiff could sustain these activities in an
ordinary work setting on a regular and continuing basis. See R. 20-22. Several times in
his decision, however, the ALJ implied that Plaintiff could have maintained employment
after the application date of November 15, 2011, notwithstanding these requirements,

2

“SVP,” which stands for “Specific Vocational Preparation,” identifies “the amount of
lapsed time required by a typical worker to learn the techniques, acquire the information,
and develop the facility needed for average performance in a specific job-worker
situation.” Dep’t of Labor, Office of Admin. Law Judges, Dictionary of Occupational
Titles app. C § II, 1991 WL 688702 (4th rev. ed. 1991). An occupation designated “SVP
2” indicates that it would take the average worker “up to and including 1 month” to
adequately perform in any given “job-worker situation.” See id.
5

because Plaintiff’s depression “is well controlled on medications” and Plaintiff can tend
to “her household and her children” when she takes these medications and abstains from
alcohol and drugs:
 “When she abstains form drinking and is compliant with her
psychotropic medications, she is stable and is able to take care of her
household and help with her children.”
 “The claimant has affective mood disorders, and some depression,
which is well controlled on medications.”
 “Although the claimant has had low global assessment of functions at
time [sic] including on a consultative psychological evaluation, she has
had mental health improvement and maintained a household when she is
compliant with psychotropic medications and treatment and when she
abstains from alcohol use.”
 “When she is complaint with mental health treatment and medications
and is abstinent from alcohol and marijuana. She had mental health
improvement. She is able to cope with taking care of her household and
her children.”
R. 20-22. The ALJ also found that Plaintiff “has not had any substantiated permanent
limitations or restrictions placed on her ability to perform basic work activities by any
treating or examining physicians.” R. 22.
Analysis
When, as here, an ALJ determines that a claimant has “a severe [mental]
impairment(s) that neither meets nor is equivalent in severity to any listing, [the ALJ]
will then assess [the claimant’s] residual functional capacity.”

20 C.F.R. §

416.920a(d)(3). A claimant’s RFC represents his or her “maximum remaining ability to
do sustained work activities in an ordinary work setting on a regular and continuing
basis,” SSR 96-8p, 1996 WL 374184, at *2 (July 2, 1996) (emphasis omitted), despite the
“total limiting effects” of his or her medically determinable impairments, 20 C.F.R.
6

§ 416.945(e). Thus, “the RFC assessment must include a discussion of the individual’s
abilities” to function at that level “8 hours a day, for 5 days a week, or on an equivalent
work schedule.” SSR 96-8p, 1996 WL 374184, at *1-2 (emphasis added). It is not
enough for the ALJ to conclude that the claimant “can work” despite his or her
impairments—the ALJ must decide whether the claimant “could hold a job for a
significant period of time.” Weigel v. Astrue, 425 F. App’x 706, 708-09 (10th Cir. 2011)
(citing Washington v. Shalala, 37 F.3d 1437, 1442-43 (10th Cir. 1994)). The RFC
assessment also “must include a narrative discussion describing how the evidence
supports each conclusion, citing specific medical facts . . . and nonmedical evidence” as
well as an explanation of “how any material inconsistencies or ambiguities in the
evidence in the case record were considered and resolved.” SSR 96-8p, 1996 WL
374184, at *7.
Further, the ALJ’s decision as a whole must be sufficiently clear and specific for
the court to determine whether the ALJ applied the correct legal standards and whether
his or her factual findings are supported by substantial evidence. See Fleetwood v.
Barnhart, 211 F. App’x 736, 739 (10th Cir. 2007) (citing Clifton v. Chater, 79 F.3d 1007,
1009 (10th Cir. 1996)). While the ALJ “is not required to discuss every piece of
evidence” in the record, he or she must “discuss the uncontroverted evidence he chooses
not to rely upon, as well as significantly probative evidence he rejects.” Clifton, 79 F.3d
at 1009-10. The court cannot meaningfully review an ALJ’s decision if it must “draw
factual conclusions on [the ALJ’s] behalf,” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.
1995), or if it is “‘left to speculate what evidence led the ALJ’” to a particular finding or
7

conclusion, Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001) (quoting Prince
v. Sullivan, 933 F.2d 598, 603 (7th Cir. 1991)).
The ALJ’s determination of Plaintiff’s RFC does not meet these standards. As
noted, the ALJ’s assessment of Plaintiff’s mental health limitations is premised on his
findings of (i) improvement as a result of medication, and (ii) improvement when
Plaintiff abstains from drugs and alcohol. First, in finding such improvement, the ALJ
failed to adequately consider relevant medical records reflecting findings and conclusions
inconsistent with the ALJ’s determination. Second, the improvement cited by the ALJ
appears to have occurred at the earliest in April 2013 and, thus, even if properly found is
not an adequate basis to determine that Plaintiff was not disabled for any twelve
continuous months during the relevant time period of November 15, 2011, to November
27, 2013. Finally, the ALJ’s assessment of Plaintiff’s mental health limitations under the
assumption that she abstains from drugs and alcohol is not an adequate basis to find that
Plaintiff “is not disabled, even considering drug and alcohol use.” R. 21.
1. Failure to Consider Significant Contradictory Evidence
The ALJ states that he gave “great weight to [Plaintiff’s] attending and examining
clinicians and psychologist/physicians, due to their treatment history and degree of
contact with” Plaintiff. R. 21. Though the ALJ does not connect this determination to
any specific finding or opinion—instead, the ALJ simply references all of Plaintiff’s
available medical records, see R. 21 (citing R. 250-344, 347-68, 414-537)—the
undersigned presumes that he is referring to the findings and opinions reflected in his
prior summary of the medical evidence, including as relevant to Plaintiff’s mental health
8

the ALJ’s summary of treatment records from Red Rock Behavioral Health Services
(“Red Rock”). Cf. Endriss v. Astrue, 506 F. App’x 772, 777 (10th Cir. 2012) (“The ALJ
set forth a summary of the relevant objective medical evidence earlier in his decision and
he is not required to continue to recite the same evidence again in rejecting Dr. Wright’s
opinion.”). See generally R. 347-51, 441-82. The ALJ’s summary of those records is as
follows:
[Plaintiff] presented to Red Rock Behavioral Health Services for evaluation
on January 6, 2012. She reported being on her fourth day of detox and
reported that it takes everything she has to function. She lives with her exhusband and kids. He supports her financially. She has no friends or social
support. She reported that she could not stand to be around people and it
makes her nervous to go out in public. She reported she smokes daily
despite her health concerns. She was assessed with rule out PTSD,
personality disorders/mental retardation, emphysema, and COPD.
She had her Initial Psychiatric Evaluation on January 12, 2012. She
reported she was divorced[,] with major depressive disorder since age 12.
She reported having a very rough childhood. She lost her first husband
who died in a motorcycle accident. She had extreme stress in her life and
had a very rough divorce. She was seen by Dr. Ardis and Dr. Sebastian,
but was off her medications. She had mood swings, pressured speech,
decrease[d] sleep, anxiousness, and generalized anxiety disorder. She
reported using alcohol one to three times a month. Dr. Jahangir Ghaznavi,
M.D., diagnosed her with bipolar disorder, mixed with psychosis,
generalized anxiety disorder, hypertension, and COPD. She was prescribed
Paxil and Thorazine.
On January 20, 2012, [Plaintiff] was diagnosed with major depressive
disorder, recurrent severe without psychosis, alcohol dependence, nicotine
dependence, emphysema, COPD, and was given a global assessment of
functioning of 41. She reported depressive symptoms of excessive sleep,
“crying all the time,” and low self-esteem. . . . . [Plaintiff] was seen every
couple of months in 2012 and was lastly seen on October 11, 2012.
She was not seen again until February 28, 2013, when she had complaints
of lots of issues and was unable to come so she had been off all
medications. She was again stressed, irritable, and was not sleeping.

9

Upon treatment plan review on April [5], 2013, she had been “level,” but
still struggles with depression and stated she had no desire to leave her
house. She recently quit smoking with assistance of vapor cigarettes. She
drinks a few alcoholic beverages on the weekends. She reported she
recently had medication changes and she was now able to sleep throughout
the night without drinking for the first time since she could remember. She
reported that she had good relationships with friends, but does not feel
motivated to get out. She reported she usually gets along well with her ex,
but due to a recent fight, she was temporarily moving out. Until moving
out a few days prior, she was keeping up the house and cooking for the
family. She was still paying fines for domestic violence cha[r]ge against
her son six months prior. Her ex-husband’s mother currently provides
financial support. Her mental health symptoms were controlled by
medications and she continued to deny any suicidal or homicidal ideations.
On her last Physician’s progress note of June 25, 2013, she continued to
have the same diagnoses as above. She had neat and clean appearance,
speech was normal, thought processes were logical, her mood/affect was
normal and her sleep was normal.
R. 19 (paragraph breaks added) (citation omitted).
Based largely on this evidence, the ALJ ultimately found that Plaintiff “has had
mental health improvement and maintained a household when she is compliant with
psychotropic medications and treatment and when she abstains from alcohol use.” R. 22.
Viewed in isolation, the cited Red Rock records do tend to support the ALJ’s finding of
mental health improvement in April and June of 2013. But both within and outside of
those records are contradictory findings and conclusions by Plaintiff’s mental health
providers regarding Plaintiff’s level of functioning—which the ALJ was required to
consider but did not. In particular, the ALJ omits from his discussion the treatment notes
prepared by treating psychiatrist Dr. Ghaznavi and Plaintiff’s other providers at Red
Rock for the period from February 2012 to January 2013, other than to state that Plaintiff
“was seen every couple of months in 2012.” See R. 19.

10

As noted in the ALJ’s summary, Plaintiff was first seen at Red Rock on January 6,
2012. See R. 19, 199, 350-51. She told the case manager, Haley Hope, MS, that she felt
hopeless and that it “takes everything I’ve got to function.” R. 350. Ms. Hope observed
that Plaintiff “ramble[d] and struggle[d] to stay on task/answer questions” during their
conversation. Id. Ms. Hope assigned a global assessment of functioning (“GAF”) score
3

of 30, and scheduled Plaintiff for an appointment with the medication clinic. Id.

The

ALJ referred to this evaluation but did not discuss Ms. Hope’s observations or GAF
assessment in his summary of the medical-source evidence.
Plaintiff established care with Dr. Ghaznavi on January 12, 2012. See R. 347-49.
Dr. Ghaznavi observed that Plaintiff appeared “unkempt and disheveled”; exhibited an
“elevated, irritable, and anxious” mood and “labile and angry” affect; and expressed both
3

A GAF score “represents a clinician’s judgment of the individual’s overall level of
functioning” at a given time. Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of
Mental Disorders 32 (4th ed. 2000) (DSM-IV). Here, Plaintiff was initially assessed by
Red Rock and other examining clinicians as having a GAF score of 30, and then
beginning in February 2012 was consistently assessed as having a GAF score of 41. See
R. 350 (January 6, 2012, GAF score of 30); R. 441 (January 20, 2012, GAF score of 30);
R. 366 (February 1, 2012, GAF score of 41); R. 451 (October 11, 2012, GAF score of
41); R. 471 (April 5, 2013, GAF score of 41); R. 477 (May 2, 2013, GAF score of 41); R.
480 (June 25, 2013, GAF score of 41). A GAF score between 21 and 30 indicates: (1)
that the patient’s “behavior is considerably influenced by delusions or hallucinations”; or
(2) “serious impairment in communication or judgment (e.g., sometimes incoherent, acts
grossly inappropriately, suicidal preoccupation)”; or (3) an “inability to function in
almost all areas (e.g., stays in bed all day; no job, home, or friends).” DSM-IV 34. A
GAF score between 41 and 50 indicates that “serious symptoms (e.g., suicidal ideation,
severe obsessional rituals, frequent shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g., few friends, unable to keep a job).” Id. The
ALJ mentioned some of these GAF scores in his decision, see R. 17-20, 21, but he did
not explain the inconsistency between his finding of improvement in spring 2013 and the
clinicians’ GAF assessments indicating an absence of improvement in overall functioning
during the same period.
11

“impaired” judgment and “loose, tangential, and circumstantial” thought processes. R.
348. He also observed that Plaintiff appeared to be suffering from delusions and auditory
hallucinations. Id. Based on this exam, Dr. Ghaznavi diagnosed Plaintiff with bipolar
disorder, mixed with psychosis and generalized anxiety disorder. He prescribed Paxil
4

and Thorazine and instructed Plaintiff to return in four weeks. R. 349. The ALJ referred
to this evaluation and Dr. Ghaznavi’s diagnoses.
Plaintiff returned to Red Rock on January 20, 2012, for her first treatment
planning meeting. See R. 441-45. Plaintiff’s treatment team agreed that she could be
discharged from Red Rock’s care once she was “stable on [her] meds,” could “manage
behaviors and social interactions” without assistance, “meet [her] basic needs,” “utilize[]
healthy coping skills,” and abst[ain] from drugs/alcohol.” R. 443. The ALJ referred to
this evaluation, but with some inaccuracies. Case manager Thomas Devine noted that
Plaintiff had been diagnosed with alcohol dependence, nicotine dependence, and
recurrent severe major depressive disorder with psychosis—not without psychosis, as the
ALJ stated in his summary of this treatment record. Compare R. 441, with R. 19. Mr.
Devine also noted that Plaintiff’s GAF score was still 30—not 41, as the ALJ stated.
Compare R. 441, with R. 19.
4

Paxil (paroxetine) is an antidepressant that is approved to treat major depressive
disorder, generalized anxiety disorder, panic disorders, and post-traumatic stress disorder.
See Nat’l Insts. of Health, Paroxetine, Medline Plus (Nov. 15, 2014),
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a698032.html.
Thorazine
(chlorpromazine) is a “conventional antipsychotic[]” that is approved to treat symptoms
associated with schizophrenia and bipolar disorder.
Nat’l Insts. of Health,
Chlorpromazine,
Medline
Plus
(May
16,
2011),
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a682040.html.
12

Plaintiff saw Dr. Ghaznavi as scheduled on February 9, 2012. R. 446. She
reported that she took her medications as prescribed but that she was experiencing
“severe nightmares,” insomnia, and “manic symptoms” on Thorazine. Id. On exam, Dr.
Ghaznavi observed that Plaintiff exhibited pressured speech, an “anxious [and] irritable
mood,” a “labile” affect, and still appeared to be suffering from delusions and
hallucinations. Id. Dr. Ghaznavi confirmed Plaintiff’s original diagnosis of recurrent,
severe major depressive disorder with psychotic features, and changed Plaintiff’s
5

prescription medications.

See R. 459. These observations were not discussed by the

ALJ, other than his note that Plaintiff was “seen every couple of months in 2012.” R. 19.
Plaintiff saw Dr. Ghaznavi again on April 5, 2012. See R. 456. Dr. Ghaznavi
noted that Plaintiff did “not appear medication compliant,” was under “extreme stress,”
and “need[ed] immediate help w[ith] psychosocial and financial issues.” Id. On exam,
Dr. Ghaznavi observed that Plaintiff’s mood was “depressed, anxious, and irritable,” her
speech was pressured, and she was suffering from delusions.

Id.

Dr. Ghaznavi

confirmed Plaintiff’s original diagnosis; refilled Plaintiff’s Paxil, Saphril, and Vistrail;
and instructed Plaintiff to start taking 200 mg Thorazine every day rather than on an “as

5

Specifically, Dr. Ghaznavi increased Plaintiff’s daily dose of Paxil, changed her
Thorazine to an “as needed” dosage, and added two new medications: 10 mg Saphris
once daily, and 50 mg Vistaril as needed. R. 459. Saphris (asenapine) is an “atypical
antipsychotic[]” medication that is approved to treat symptoms associated with
schizophrenia and bipolar disorder. Nat’l Insts. of Health, Asenapine, Medline Plus (Jan.
15, 2016), https://www.nlm.nih.gov/medlineplus/druginfo/meds/a610015.html. Vistaril
(hydroxyzine) is approved to treat anxiety and symptoms associated with alcohol
withdrawal. Nat’l Insts. of Health, Hydroxyzine, Medline Plus (Sept. 1, 2010),
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a682866.html.
13

needed” basis. R. 456, 458. These observations were not mentioned separately from the
ALJ’s statement that Plaintiff was “seen every couple of months in 2012.” R. 19.
Plaintiff saw Dr. Ghaznavi again on May 31, 2012. R. 461. She reported that she
took her medications as prescribed but had experienced a “severe reaction” to some or all
of those medications.

Id.

Dr. Ghaznavi refilled Plaintiff’s Paxil and Vistaril,
6

discontinued Plaintiff’s Thorazine and Saphris, and added 6 mg Fanapt once per day. R.
463. On July 26, 2012, Plaintiff told Dr. Ghaznavi that she “did not like Fanapt since she
has not been sleeping” and wanted to restart Saprhis and Thorazine. R. 464. Although
Plaintiff reported doing “OK otherwise,” Dr. Ghaznavi observed on exam that Plaintiff
still exhibited a “depressed [and] anxious” mood and appeared to be suffering from
delusions. Id. Dr. Ghaznavi confirmed Plaintiff’s original diagnosis, refilled her 40 mg
Paxil, and restarted Plaintiff on 10 mg Saphris and 100 mg Thorazine once daily. R. 465.
Again, these observations and findings were omitted from the written decision. R. 19.
On October 11, 2012, Plaintiff told Dr. Ghaznavi that she took her medication as
prescribed without adverse side effects, except that she was “still not sleeping well.” R.
466. On exam, Dr. Ghaznavi observed that Plaintiff’s mental status was generally within
normal limits.

See id.

He refilled Plaintiff’s 40 mg Paxil and 10 mg Saphris,
7

discontinued her Thorazine, and added 200 mg Seroquel once daily. R. 468. The next
6

Fanapt (iloperidone) is an “atypical antipsychotic[]” medication that is approved to treat
symptoms associated with schizophrenia. Nat’l Insts. of Health, Iloperidone, Medline
Plus (Mar. 15, 2016), https://www.nlm.nih.gov/medlineplus/druginfo/meds/
a609026.html.
7

Seroquel (quetiapine) is an “atypical antipsychotic[]” medication that is approved to
14

day, Plaintiff attended a treatment planning meeting with Savannah Burghardt, MS, a
Red Rock case manager. See R. 451-55. Plaintiff told Ms. Burghardt that her current
medications “controlled” her hallucinations and “reduced” her depression symptoms, but
that she still experienced “frustration that makes her not want to get up.” R. 454. Ms.
Burghardt noted that Plaintiff’s current GAF score had improved to 41, see R. 451, which
indicates that Plaintiff had “serious symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school
functioning (e.g., few friends, unable to keep a job),” DSM-IV 34. These observations
were not discussed by the ALJ. R. 19.
The ALJ correctly noted that Plaintiff did not see Dr. Ghaznavi again until
February 28, 2013, when she told the psychiatrist that she “had lots of issues and [was]
unable to come so [she had] been off all medication.” See R. 19, 448. On exam, Dr.
Ghaznavi observed that Plaintiff appeared “unkempt”; exhibited an angry, anxious, and
labile mood/affect, as well as an “illogical” thought process marked by “magical
thinking”; and appeared to be suffering from “impaired” short-term memory and
delusions.

R.

448.

Dr.

Ghaznavi

also

opined

that

Plaintiff’s

“current

problems/symptoms appear [to be] worsening” and now included paranoia. R. 449. He
discontinued Plaintiff’s Seroquel and Thorazine, refilled her 40 mg Paxil, and added 120

treat symptoms associated with schizophrenia, bipolar disorder, and depression. Nat’l
Insts.
of
Health,
Quetiapine,
Medline
Plus
(Apr.
15,
2014),
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a698019.html.
15

8

mg Latuda once daily and 150 mg Trazodone as needed.

R. 450. While the ALJ

referred to this evaluation, he did not mention Dr. Ghaznavi’s objective findings—or
specifically his opinion that Plaintiff’s symptoms were worsening—in his decision. See
R. 19.
Plaintiff attended another treatment planning meeting at Red Rock on April 5,
2013. See R. 471. As the ALJ noted, Plaintiff told her case manager that she “has been
‘level,’ but still struggles w[ith] depression” and “has no desire to leave her house.” R.
475. The case manager also noted Plaintiff’s comment that she “was keeping up house
and cooking for family” until moving out of her ex-husband’s home “a few days ago.”
Id. In contrast to the ALJ’s conclusion that Plaintiff’s “mental health symptoms were
controlled by medications” as of April 2013, R. 19, these records indicate that Plaintiff
reported that her new medications controlled her hallucinations and allowed her to sleep
through the night without drinking. R. 475. The ALJ also did not discuss the clinicians’
assessments that: (i) Plaintiff should receive individual “psychosocial rehab” services
four times a month in order to “learn 3 symptoms of [her] illness and practice healthy
coping skills” (R. 473); (ii) Plaintiff could be discharged from these services once she
“ha[d] appropriate social skills,” could “meet [her] basic needs,” and had the “resources

8

Latuda (lurasidone) is an “atypical antipsychotic[]” medication that is approved to treat
symptoms associated with schizophrenia, depression, and bipolar disorder. Nat’l Insts. of
Health, Lurasidone, Medline Plus (Jan. 15, 2016), https://www.nlm.nih.gov/medlineplus/
druginfo/meds/a611016.html. Trazodone is a serotonin modulator that is approved to
treat depression, insomnia, and schizophrenia, and anxiety. See Nat’l Insts. of Health,
Trazodone, Medline Plus (Nov. 15, 2014), https://www.nlm.nih.gov/medlineplus/
druginfo/meds/a681038.html.
16

to meet [her] treatment needs without [Red Rock’s] assistance” (R. 475); and (iii) the
anticipated discharge date was April 12, 2014 (id.). In particular, the ALJ did not explain
the inconsistency between the clinicians’ implicit opinion that Plaintiff could not “meet
[her] basic needs,” and was not expected be able to do so until April 2014, with the ALJ’s
finding that Plaintiff can “take care of her household and help with her children” as long
as she takes her medications. R. 20.
Plaintiff saw Dr. Ghaznavi again on May 2, 2013. R. 477. She told Dr. Ghaznavi
that she was “doing well” on her current medications. Id. Dr. Ghaznavi opined that
Plaintiff was “stable” on those medications and that her mental status was generally
within normal limits. Id. He also noted that Plaintiff’s current GAF score was still 41,
and that she had not experienced any “noteworthy” psychiatric “changes since [her] last
visit” in February 2013. See id. Dr. Ghaznavi’s June 25, 2013 progress note reflects
similar findings.

See R. 480.

On this visit, Dr. Ghaznavi confirmed his original

diagnosis of severe, recurrent major depressive disorder with psychotic features—not
“without psychosis” as the ALJ stated in his summary. Compare id., with R. 19. Again,
while the ALJ discussed this evaluation, he did not mention Dr. Ghaznavi’s diagnoses or
Dr. Ghaznavi’s assessment that Plaintiff’s GAF was at a level indicating that Plaintiff had
serious symptoms or serious impairment in social or occupational functioning. R. 19; see
DSM-IV 34.
The ALJ’s failure to meaningfully address evidence of Plaintiff’s mental illness—
particularly findings and opinions included in the medical records on which the ALJ
apparently relied—leaves the Court unable to ascertain whether the ALJ properly
17

evaluated Plaintiff’s RFC with respect to her mental abilities throughout the relevant time
period.

See Fleetwood, 211 F. App’x at 739-41; Weigel, 425 F. App’x at 710.

Specifically, the ALJ’s decision does not make clear how he determined that Plaintiff’s
medications “controlled” her mental illness or that Plaintiff’s ability to “cope with
maintaining a household,” R. 22, compelled the conclusion that Plaintiff could work on a
regular and continuing basis during the relevant period. Cf. Henderson v. Colvin, 82 F.
Supp. 3d 1218, 1223 (D. Colo. 2015) (“The ability to engage in limited household and
other activities of daily living does not equate to the ability to perform substantial gainful
activity on a regular work schedule.” (citing 20 C.F.R. § 404.1572(c); Thompson v.
Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993)). This Court cannot weigh that evidence
in the first instance. Weigel, 425 F. App’x at 708-09.
Even if it were assumed that the ALJ considered but rejected the findings and
opinions cited above, it would follow that the ALJ impermissibly relied upon “portions of
evidence favorable to his position while ignoring” or mischaracterizing other evidence in
the same medical records that undermines his conclusion that Plaintiff could work on a
regular and continuing basis. See Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir.
2004) (“It is improper for the ALJ to pick and choose among medical reports, using
portions of evidence favorable to his position while ignoring other evidence.”); cf. Sitsler
v. Astrue, 410 F. App’x 112, 117-18 (10th Cir. 2011) (“We have criticized this form of
selective and misleading evidentiary review, holding that an ALJ cannot use
mischaracterizations of a claimant’s activities to discredit his claims of disabling
limitations.” (citing Sisco v. U.S. Dep’t of Health & Human Servs., 10 F.3d 739, 742-43
18

(10th Cir. 1993)). Remand is therefore required for the ALJ “to consider and discuss the
relevant evidence, to provide reasons for accepting or rejecting the evidence, and to apply
the correct legal standards.” Weigel, 425 F. App’x at 708-09 (citing Clifton, 79 F.3d at
1009-10).
2. Effect of Finding of Improvement with Medication
As noted, the ALJ premised his determination of Plaintiff’s mental health
limitations on a finding that Plaintiff “has had mental health improvement and maintained
a household when she is compliant with psychotropic medications and treatment and
when she abstains from alcohol use.” R. 22. The records referenced by the ALJ as
indicating improvement reflect evaluation and treatment in April and June 2013. R. 19,
21. Even if a finding of improvement in mid-2013 were properly made, however, that
would not by itself reasonably allow the ALJ to determine that Plaintiff was not disabled
for any 12 continuous months during the relevant time period of November 15, 2011, to
November 27, 2013.
The ALJ’s decision does not reflect that he considered whether Plaintiff’s mental
health impairment resulted in limitations that prevented her from working on a regular
and continuing basis for any qualifying 12-month period—as opposed to merely after the
cited improvement. 20 C.F.R. § 416.905 (defining disability as “the inability to do any
substantial gainful activity by reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last for a continuous period of not
less than 12 months”). The treatment records from spring 2013 referenced by the ALJ as
showing improvement indicate that some of Plaintiff’s mental-health symptoms were
19

responding to a new combination of antipsychotic and antidepressant medications. See R.
19, 21, 475, 477. Although those records speak to Plaintiff’s condition between April
and November 2013, they are not evidence of Plaintiff’s ability to function in an ordinary
work setting on a regular and continuing basis for any 12 continuous months prior to that
period. This is a failure to follow applicable legal standards, requiring that the matter be
remanded for evaluation of Plaintiff’s RFC prior to April 2013.
3. Effect of Finding of Improvement upon Abstention from Drugs and Alcohol
The Commissioner has adopted a special procedure for evaluation of whether a
claimant who has limitations caused by drug or alcohol abuse (“DAA”) is disabled only
because of that drug or alcohol abuse. 20 C.F.R. § 416.935(b); see also 42 U.S.C. §
423(d)(2)(C) (“An individual shall not be considered to be disabled for purposes of this
subchapter if alcoholism or drug addiction would (but for this subparagraph) be a
contributing factor material to the Commissioner’s determination that the individual is
disabled.”). The ALJ must follow this procedure if he finds that the claimant is disabled
and the claimant’s record contains “medical evidence of [his or her] drug addiction or
alcoholism.” 20 C.F.R. § 416.935(a); see also Drapeau, 255 F.3d at 1214; Evaluating
Cases Involving Drug Addiction and Alcoholism (DAA), 78 Fed. Reg. 11939, 11941-42
(Feb. 20, 2013). In making this determination, the “key factor . . . is whether [the ALJ]
would still find [claimant] disabled if [claimant] stopped using drugs or alcohol.” 20
C.F.R. § 416.935(b)(1). The ALJ must evaluate which of the claimant’s physical and/or
mental limitations, upon which the threshold disability determination was based, would
remain if the claimant stopped using drugs or alcohol, and then determine whether any or
20

all of the remaining limitations would be disabling. Id. § 416.935(b)(2). If the ALJ finds
that a claimant’s remaining limitations would not be disabling, then the DAA is a
material contributing factor to the claimant’s disability and the ALJ must determine the
claimant is not disabled. Id. § 416.935(b)(2)(i). If the ALJ finds that the remaining
limitations would in and of themselves be disabling, then the ALJ must determine that the
claimant is disabled. Id. § 416.935(b)(2)(ii).
Here, although the ALJ found a severe medically determinable impairment of
“past alcohol abuse,” see R. 13-14, the ALJ did not follow the DAA evaluation procedure
because he determined that Plaintiff “is not disabled, even considering drug and alcohol
use.”

R. 21.

Notwithstanding this statement, the ALJ proceeded to expressly and

repeatedly premise his RFC assessment on a finding that Plaintiff’s mental health
9

symptoms improve when she abstains from alcohol use. R. 20-22.

Again, the ALJ

referred to recent improvement without addressing Plaintiff’s limitations prior to that
improvement. As written, the ALJ’s RFC determination addresses Plaintiff’s functioning

9

The ALJ’s written decision is all the more confounding given his repeated statements
during the August 2013 administrative hearing that it would be “difficult for [him] to
avoid saying that alcohol is a material issue to [Plaintiff’s] mental health when the most
recent mental evaluation evidence . . . still has [her] diagnosed as alcohol dependent” in
June 2013. R. 45; see also id. at 44, 45, 46, 47. Plaintiff’s counsel then asked for the
ALJ’s help obtaining additional medical evidence from Red Rock that could demonstrate
Plaintiff was “disabled” during the relevant time even though she had stopped abusing
alcohol. See id. at 48-50, 52. The ALJ noted his reluctance to “g[et] involved in trying to
do that” because his past interactions with claimants’ doctors “have ended up being
protracted, disputatious messes” and were “irritating to the staff lawyers” who work with
him. Id. at 50. The Court reminds the Commissioner of the obligation to “make every
reasonable effort to help [claimants] get medical reports from [their] own medical
sources” before determining that the claimant is not disabled. 20 C.F.R. § 416.912(d).
21

only when she abstains from alcohol and implies that Plaintiff is or may be disabled when
she abuses alcohol. If abstinence from drugs or alcohol is a necessary premise of the
RFC determination, the ALJ was required to follow the DAA evaluation procedure. This
too is a failure to follow applicable legal standards, requiring that the matter be remanded
for further consideration.
CONCLUSION
The decision of the Commissioner is reversed and the case remanded for further
consideration pursuant to the fourth sentence of 42 U.S.C. § 405(g).
Judgment will enter.
ENTERED this 31st day of March, 2016.

22

A separate