Rees v. Colvin
MEMORANDUM DECISION and Order on Administrative Appeal. ORDERED that the ALJs decision is REVERSED AND REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for the purposes of conducting additional proceedings as set forth herein. The Clerk of Court shall enter judgment remanding this case and shall close this case forthwith. Signed by Judge Ted Stewart on 4/21/2015. (jds)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
MEMORANDUM DECISION AND
ORDER ON ADMINISTRATIVE APPEAL
CAROLYN COLVIN, Acting Commissioner
of the Social Security Administration,
Case No. 2:14-CV-489 TS
District Judge Ted Stewart
This matter comes before the Court on Plaintiff Jackie Rees’s appeal from the decision of
the Social Security Administration denying her application for disability insurance benefits and
supplemental social security income. Having considered the arguments of the parties, reviewed
the record and relevant case law, and being otherwise fully informed, the Court will reverse and
remand the administrative ruling.
I. STANDARD OF REVIEW
This Court’s review of the administrative law judge’s (“ALJ”) decision is limited to
determining whether its findings are supported by substantial evidence and whether the correct
legal standards were applied. 1 Substantial evidence means “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” 2 The ALJ is required to
consider all of the evidence, although he or she is not required to discuss all of the evidence. 3 If
supported by substantial evidence, the Commissioner’s findings are conclusive and must be
Rutledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000).
Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996).
affirmed. 4 The Court should evaluate the record as a whole, including that evidence before the
ALJ that detracts from the weight of the ALJ’s decision. 5 However, the reviewing court should
not re-weigh the evidence or substitute its judgment for that of the ALJ. 6
On May 5, 2011, Plaintiff filed an application for disability insurance benefits and
supplemental security income, alleging disability beginning on July 1, 2004. 7 The claim was
denied initially and upon reconsideration. Plaintiff then requested a hearing before an ALJ,
which was held on February 19, 2013. 8 The ALJ issued a decision on March 6, 2013, finding
that Plaintiff was not disabled. 9 The Appeals Council denied Plaintiff’s request for review on
May 12, 2014, 10 making the ALJ’s decision the Commissioner’s final decision for purposes of
judicial review. 11
On November 5, 2004, Plaintiff was admitted to the University of Utah hospital after
exhibiting suicidality, severe signs of depression, recent weight loss, lack of functioning, and
paranoia. 12 Plaintiff exhibited severe signs of psychomotor retardation and had a severely
Richardson v. Perales, 402 U.S. 389, 402 (1981).
Shepard v. Apfel, 184 F.3d 1196, 1199 (10th Cir. 1999).
Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
R. at 188–98.
Id. at 26–61.
Id. at 8–24.
Id. at 1–4.
20 C.F.R. § 422.210(a).
R. at 312.
depressed affect. 13 She appeared extremely lethargic and depressed and made virtually no eye
contact. 14 Plaintiff was diagnosed with major depressive disorder. 15 She was discharged on
November 12, 2004, and prescribed Lexapro and Risperdal. 16
On April 14, 2005, Plaintiff presented to the emergency room after she had not been
taking her medications for five months. 17 Upon examination, Plaintiff had a very flat affect and
spoke very little. 18 Plaintiff was diagnosed with depression and arrangements were made for her
to meet with Valley Mental Health the following day. 19
On April 15, 2005, Plaintiff was seen by Connie Strong, APRN. 20 Plaintiff was “very
psychomotor retarded and was unable to answer many questions.” 21 Ms. Strong found that
Plaintiff appeared severely depressed and had some paranoia. 22 She had no insight, poor
judgment, and low motivation. 23 Plaintiff was diagnosed with major depression and was started
on medication. 24
Id. at 315.
Id. at 318.
Id. at 320.
Id. at 420.
Id. at 421.
Id. at 350.
Id. at 351.
Plaintiff was again seen by Ms. Strong on April 28, 2005. 25 Plaintiff reported that she
was doing better. 26 She was appropriately dressed and groomed, and was wearing makeup. 27
While Plaintiff had improved with the use of medication, she still had little insight. 28 She was
continued on medication, which she agreed to take. 29
Plaintiff was again seen on June 14, 2005. 30 She stated that she felt panicky and
depressed at times, and wanted to move out of her daughter’s home. 31 Plaintiff reported that her
depression had improved, but that it waxes and wanes. 32 She also reported an increase in panic
attacks. 33 Plaintiff’s diagnosis of depressive disorder with psychotic features remained the same
and she was continued on medication. 34
In August 2005, Plaintiff reported that she wanted to return to work, but felt she was
unable. 35 Ms. Strong noted that Plaintiff’s depression had improved and her anxiety was well
controlled. 36 However, Plaintiff also stated that she continued to have feelings of hopelessness,
tearfulness, and depression. 37 Ms. Strong opined that Plaintiff was unable to work at that time. 38
Id. at 349.
Id. at 346.
Id. at 347.
Id. at 346.
Id. at 539.
On September 23, 2005, Plaintiff reported that she continued to fight her depression. 39
Ms. Strong found that Plaintiff continued with some depression and sadness, but that she denied
suicidality and that her mood had improved from the initial assessment. 40 Ms. Strong stated that
Plaintiff continued to have moderate symptoms of depression, but Plaintiff did not want to
change her medication. 41 Plaintiff’s anxiety was well controlled. 42
In November 2005, Plaintiff reported that she discontinued her Lexapro because it made
her “more paranoid” but she continued to take Clonazepam. 43 In January 2006, Plaintiff’s
daughter contacted Ms. Strong, stating that Plaintiff was not doing well and was off her
Plaintiff was seen by Ms. Strong on January 9, 2006. 45 Plaintiff reported she was
paranoid and was unsure of when she discontinued her medications. 46 Plaintiff stated that she
started to feel better and went off the medications. 47 During the visit, Plaintiff did not smile or
make eye contact, and her affect was angry. 48 “Although she denied suicidality, she appeared
depressed.” 49 Ms. Strong started Plaintiff on Abilify. 50 By June 2006, Plaintiff had dropped out
of treatment. 51
Id. at 345.
Id. at 344.
On July 10, 2006, Plaintiff was seen by C. Renee Rottler, Ph.D. 52 Plaintiff stated that her
daughter had brought her in to encourage her to return to treatment. 53 Plaintiff had a sad,
worried, and blunted affect. 54 While Plaintiff believed she was not in need of treatment or
medication, she agreed she was not doing well. 55 Plaintiff was diagnosed with major depressive
Plaintiff was seen by Kathleen Veresh, R.N., on July 27, 2006. It was reported that
Plaintiff could not bathe, dress, or eat on her own. 57 She had eaten little in four days and was not
drinking. 58 Ms. Veresh prepared a letter concerning “what her present condition is and her
inability to work.” 59
Plaintiff again saw Ms. Strong on August 11, 2006. Plaintiff “was not very verbal” but
stated that “she wishes she were dead.” 60 Plaintiff was appropriately dressed and groomed, but
appeared depressed and moved slowly. 61 She had suicidal thoughts previously, but had no intent
or plan. 62 Plaintiff had improved on medication, but had “little insight into the fact that
Id. at 343.
Id. at 341.
Id. at 342.
Id. at 340.
Id. at 341.
Id. at 339.
medication is what usually helps her to feel better.” 63 Plaintiff agreed to continue taking
Abilify. 64 Ms. Strong completed a Workplace Functional Ability Report indicating that Plaintiff
was not able to work due to her depression. 65
On September 14, 2006, Plaintiff reported that she was feeling much better and did not
have “crazy thoughts” anymore. 66 Ms. Strong noted that Plaintiff’s mood had improved, she was
dressed and groomed appropriately, and her mood was euthymic. 67
In November 2006, Plaintiff stated that she was doing really well and was afraid to go off
her medication because it was helping. 68 Ms. Strong noted that Plaintiff had improved and
continued her on Abilify. 69 In January 2007, Ms. Strong opined that Plaintiff could work 10
hours per week. 70 Ms. Strong believed that Plaintiff could try a very gradual return to part-time,
low-stress work. 71
At some point, Plaintiff again went off her medication. On September 18, 2007,
Plaintiff’s daughter stated that Plaintiff was not doing well and talked about wanting to die. 72
The following day, it was reported that Plaintiff was psychotic and getting violent. 73 On
Id. at 340.
Id. at 536.
Id. at 338.
Id. at 388.
Id. at 534.
Id. at 393.
September 20, 2007, Plaintiff was unable to carry on a conversation. 74 On September 21, 2007,
Plaintiff was catatonic and gave only short answers to questions. 75
On October 9, 2007, Plaintiff was seen by Lisa Olsen, APRN. 76 Ms. Olsen noted that
Plaintiff had an inconsistent treatment history and tended to stop taking her medications. 77
Plaintiff reported that she had stopped taking her medications two days prior. 78 Ms. Olsen found
that Plaintiff was difficult to engage, had adequate grooming, and was appropriately dressed. 79
Plaintiff’s mood was depressed and her affect was blunted, and she exhibited poor insight and
judgment. 80 Plaintiff was restarted on Abilify and was reminded of the importance of taking her
medications consistently. 81
In April 2008, Plaintiff’s daughter indicated that she was worried about her mother. 82
Plaintiff had stopped taking her medications or going to her appointments, and was becoming
unmanageable. 83 In July 2008, Plaintiff presented to the emergency room with complaints of
depression, delusions, and paranoia. 84
Id. at 394.
Id. at 395.
Id. at 397.
Id. at 400.
Id. at 442.
On April 1, 2010, Plaintiff again saw Ms. Strong. 85 Plaintiff described her mood as
depressed and “[h]er affect was definitely depressed.” 86 Plaintiff had limited insight into her
illness and poor judgment in relation to treatment. 87 Plaintiff was diagnosed with major
depressive disorder and restarted on Abilify. 88
Plaintiff was examined by Liz McGill, Ph.D., on April 20, 2010. 89 Dr. McGill stated that
Plaintiff was very difficult to interview and appeared depressed. 90 Plaintiff was also anxious
during the examination. 91 Dr. McGill stated that Plaintiff’s ability to get along with others
would be “impaired” as she was very uncomfortable and related minimally. 92 Dr. McGill
provided a diagnosis of major depression with psychosis. 93 She stated that Plaintiff needed to
consistently stay involved with mental health treatment and medications, and that Plaintiff’s
prognosis was uncertain given her history of poor treatment compliance. 94
Plaintiff met with Ms. Strong on April 27, 2010. 95 Plaintiff and her daughter both
reported a cycle where Plaintiff would take medications for a while, then discontinue the
medications once Plaintiff started to feel better. 96 Plaintiff’s mood and affect were irritable, but
Id. at 458.
Id. at 459.
Id. at 515.
Id. at 516.
Id. at 517.
Id. at 518.
Id. at 464.
Id. at 465.
she stated she was doing better. 97 Ms. Strong stated that Plaintiff appeared to be doing better and
continued her on Abilify and prescribed Lexapro and Clonazepam. 98
On August 16, 2010, Plaintiff met with Ms. Strong. 99 Plaintiff stated that she was doing
really well and that she realized she needed to stay on her medications. 100 Plaintiff presented
“with appropriate grooming. Her thoughts were clear and goal directed. Her affect was broad
and appropriate. She was smiling and interactive and expressed insight into her illness.” 101
Plaintiff was continued on her medications. 102 Plaintiff was again seen on November 8, 2010,
and was continuing to do well while on her medications. 103
On February 7, 2011, Plaintiff told Ms. Strong that she was under a lot of stress because
she was trying to help both her children. 104 Ms. Strong found that Plaintiff was stable on her
medications and expressed insight into the need for medications. 105 Plaintiff was continued on
her medications. 106
In April 2011, Plaintiff stated that she was “doing really well.” 107 Plaintiff’s mood was
good and her affect was broad and appropriate. 108 Again, Ms. Strong found that Plaintiff was
stable on her medication. 109
Id. at 470.
Id. at 472.
Id. at 473.
Id. at 474.
Plaintiff was examined by Emily Harris, Ph.D., on August 10, 2011. 110 Plaintiff stated
she was mildly depressed, but was handling it. 111 Plaintiff was a reluctant reporter and seemed
uneasy and uncomfortable. 112 She presented with a depressed mood. 113 Plaintiff described her
symptoms as mild, but Dr. Harris noted that she had a history of severe depression with
psychotic symptoms. 114 In addition, Dr. Harris noted that though Plaintiff was on medication,
she was not symptom free. 115 Dr. Harris diagnosed schizoaffective disorder. 116 Dr. Harris found
that Plaintiff was somewhat stable on her medications, but she still dealt with mild depression. 117
Dr. Harris noted that Plaintiff had a history of being inconsistent with treatment and that she
needed to stay in long-term mental health treatment. 118 Dr. Harris opined that Plaintiff “may be
able to go back to simple work if she is more consistent with medication.” 119
In September 2011, a Medicaid Review Board medical consultant stated that Plaintiff’s
condition met or equaled listed impairments 12.03 and 12.04 and a Medicaid examiner found her
eligible for Medicaid based on disability. 120 In November 2011, Lois Huebner, Ph.D., a stateagency psychologist, stated that Plaintiff could do simple work in a low-stress environment as
Id. at 476.
Id. at 525.
Id. at 527.
Id. at 529.
Id. at 531.
long as she stayed on her medications. 121 In March 2012, John Gill, Ph.D., a state agency
psychologist, reviewed the evidence and agreed with Dr. Huebner’s opinions. 122
At the hearing, the ALJ received testimony from Plaintiff and a vocational expert.
Plaintiff stated that her mental health issues would prevent her from working. 123 Plaintiff stated
that she takes care of her five-year-old grandson. 124 Plaintiff testified that she generally did not
leave the house and that she was dependent on her daughter or her daughter’s boyfriend to take
her places. 125 Plaintiff stated that she had problems with concentration and thinking and became
stressed dealing with the public. 126
In response to a hypothetical given by the ALJ, the vocational expert testified that the
hypothetical person could not perform Plaintiff’s past relevant work, but she could perform other
jobs in the national economy. 127
THE ALJ’S DECISION
The ALJ followed the five-step sequential evaluation process in deciding Plaintiff’s
claim. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity since July 1, 2004, the alleged onset date. 128 At step two, the ALJ found that Plaintiff
suffered from the following severe impairments: major depression, bipolar disorder, other
Id. at 64–93.
Id. at 96–121.
Id. at 32.
Id. at 36.
Id. at 37–38.
Id. at 33, 39.
Id. at 54–55.
Id. at 13.
affective/mood disorders, anxiety disorder, and obesity. 129 At step three, the ALJ found that
Plaintiff did not have an impairment or combination of impairments that met or equaled a listed
impairment. 130 At step four, the ALJ determined that Plaintiff could not perform her past
relevant work. 131 At step five, the ALJ found that there were jobs that exist in significant
numbers in the national economy that Plaintiff could perform and, therefore, she was not
Plaintiff raises the following issues in her brief: (1) the ALJ failed to properly evaluate
the opinion of Plaintiff’s treating and examining medical providers; (2) the ALJ improperly
evaluated Plaintiff’s credibility; and (3) the ALJ did not meet his burden of proof at step five of
the sequential evaluation.
TREATING AND EXAMINING MEDICAL PROVIDERS
Plaintiff first argues that the ALJ erred in his evaluation of Plaintiff’s treating and
examining medical providers.
The ALJ, in reviewing the opinions of treating sources, must engage in a sequential
analysis. 133 First, the ALJ must consider whether the opinion is well-supported by medically
acceptable clinical and laboratory techniques. 134 If the ALJ finds that the opinion is wellsupported, then he must confirm that the opinion is consistent with other substantial evidence in
Id. at 14–15.
Id. at 22.
Id. at 22–23.
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).
the record. 135 If these conditions are not met, the treating physician’s opinion is not entitled to
controlling weight. 136
This does not end the analysis, however. Even if a physician’s opinion is not entitled to
controlling weight, that opinion must still be evaluated using certain factors. 137 Those factors
(1) the length of the treatment relationship and the frequency of examination; (2)
the nature and extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed; (3) the degree to
which the physician’s opinion is supported by relevant evidence; (4) consistency
between the opinion and the record as a whole; (5) whether or not the physician is
a specialist in the area upon which an opinion is rendered; and (6) other factors
brought to the ALJ’s attention which tend to support or contradict the opinion. 138
After considering these factors, the ALJ must give good reasons for the weight he ultimately
assigns the opinion. 139 If the ALJ rejects the opinion completely, he must give specific,
legitimate reasons for doing so. 140 These same factors are considered in evaluating opinions
from other sources. 141
Plaintiff argues that the ALJ erred in his evaluation of Connie Strong. Plaintiff further
argues that the ALJ’s failure to assign weight to the opinions of Dr. Harris, Dr. McGill, and the
Workforce Services medical doctor require remand.
Id. at 1301 (quoting Drapeau v. Massanri, 255 F.3d 1211, 1213 (10th Cir. 2001)); see also 20
Watkins, 350 F.3d at 1300.
Social Security Ruling (“SSR”) 06–03p, 2006 WL 2263437 (Aug. 9, 2006).
Plaintiff was examined by Dr. McGill on April 20, 2010. Dr. McGill diagnosed Plaintiff
with major depression with psychosis and assigned a GAF score of 45. Dr. McGill stated that
Plaintiff needed to consistently stay involved with mental health treatment and medications, and
that Plaintiff’s prognosis was uncertain given her history of poor treatment compliance.
Plaintiff was examined by Dr. Harris on August 10, 2011. Dr. Harris noted that Plaintiff
had a history of severe depression with psychotic symptoms. In addition, Dr. Harris noted that
though Plaintiff was on medication, she was not symptom free. Dr. Harris diagnosed
schizoaffective disorder. Dr. Harris found that Plaintiff was somewhat stable on her
medications, but she still dealt with mild depression. Dr. Harris noted that Plaintiff had a history
of being inconsistent with treatment and that she needed to stay in long-term mental health
treatment. Dr. Harris opined that Plaintiff “may be able to go back to simple work if she is more
consistent with medication.” 142
In September 2011, a Medicaid Review Board medical consultant stated that Plaintiff’s
condition met or equaled listed impairments 12.03 and 12.04 and a Medicaid examiner found her
eligible for Medicaid based on disability.
As set forth above, the regulations require the ALJ to consider all medical opinions. 143 In
this case, the ALJ did not specifically evaluate the opinions of Dr. McGill, Dr. Harris, and the
Medicaid Review Board medical consultant. While the Commissioner has provided a number of
reasons why the ALJ could reject these opinions, 144 “this court may not create or adopt post-hoc
rationalizations to support the ALJ’s decision that are not apparent from the ALJ’s decision
R. at 529.
20 C.F.R. § 1527(c) (“Regardless of its source, we will evaluate every medical opinion we
Docket No. 17, at 14–18.
itself.” 145 Because the ALJ failed to properly analyze these opinions, the Court must remand this
matter for further proceedings. Because evaluation of these opinions on remand may affect the
ALJ’s consideration of Ms. Strong’s opinion, the Court declines to consider the arguments made
by the parties. Rather, the ALJ should reconsider Ms. Strong’s opinions in light of the proper
evaluation of the other opinion evidence.
Plaintiff next contends that the ALJ erred in his credibility determination. Social Security
Ruling 96-7p sets out relevant factors an ALJ should consider in determining credibility. These
(1) the individual’s daily activities; (2) the location, duration, frequency, and
intensity of the individual’s pain or other symptoms; (3) factors that precipitate
and aggravate the symptoms; (4) the type, dosage, effectiveness, and side effects
of any medication the individual takes or has taken to alleviate pain or other
symptoms; (5) treatment, other than medication, the individual receives or has
received for relief of pain or other symptoms; (6) any measures other than
treatment the individual uses or has used to relieve pain or other symptoms (e.g.,
lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping
on a board); and (7) any other factors concerning the individual’s functional
limitations and restrictions due to pain or other symptoms. 146
In determining credibility, the ALJ must consider the entire case record. 147 However, the
Tenth Circuit “does not require a formalistic factor-by-factor recitation of the evidence . . . [s]o
long as the ALJ sets forth the specific evidence he relies on in evaluating the claimant’s
credibility . . . .” 148 An ALJ’s “credibility determinations are peculiarly the province of the
Haga v. Astrue, 482 F.3d 1205, 1207–08 (10th Cir. 2007).
SSR 96-7p, 1996 WL 374186, at *3 (July 2, 1996).
Qualls, 206 F.3d at 1372.
finder of fact, and [the reviewing court] will not upset such determinations when supported by
substantial evidence.” 149
The ALJ found that Plaintiff’s subjective complaints were not fully credible, when
Plaintiff takes her medications as prescribed. 150 The ALJ found that Plaintiff could “perform at
higher levels than she states, or perceives she can, when she is compliant with her mental health
medications.” 151 The ALJ noted that Plaintiff reported an extremely limited lifestyle, but when
she was taking her medications she was capable of handling her own activities of daily living. 152
This included taking care of her grandchild, housecleaning, preparing meals, watching television
and movies, shopping, and visiting with family and friends. 153 The ALJ found that these
activities were inconsistent with Plaintiff’s allegation of total disability. 154
The ALJ further found that while Plaintiff had a history of mental health issues,
conservative treatment measures had been successful in controlling her symptoms when
following them as prescribed. 155 In addition, the ALJ noted large gaps between treatments. 156
The ALJ found that this failure to seek treatment suggested that Plaintiff was not as disabled as
she alleged. 157
As set forth above, this matter must be remanded for proper consideration of the medical
opinion evidence. Consideration of this evidence may affect the ALJ’s analysis of Plaintiff’s
Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995).
R. at 18–19.
Id. at 19.
credibility. Therefore, the Court will remand this issue as well. The Court pauses to make one
The Court agrees with Plaintiff’s argument that her non-compliance with medication is
not a valid reason to reject Plaintiff’s testimony. 158 On remand, the ALJ is directed to consider
whether Plaintiff’s impairments prevent her from consistently taking her medications. As the
ALJ noted, and as is evidenced by the record, Plaintiff exhibits a cycle where she takes
medications until her condition improves only to discontinue her medications, leading to a
deterioration in her mental health. The record shows that Plaintiff generally has poor insight into
her illness and fails to appreciate the fact that regularly taking her medications helps improve her
condition. It does not appear that the ALJ fully considered these facts when making his
credibility determination. Therefore, remand is necessary on this point.
Plaintiff next argues that the ALJ erred at step five of the sequential evaluation process.
Plaintiff argues that the hypothetical given to the vocational expert failed to account for all of
Plaintiff’s limitations, including Plaintiff’s poor concentration, persistence, and pace; her
anxiety; her need to constantly be with an immediate family member; and her lapses into
psychotic features. Because this matter must be remanded for further proceedings, it is
unnecessary to reach Plaintiff’s arguments concerning the ALJ’s step five analysis. 159 The ALJ
should conduct a new step five analysis after considering all of the evidence, as set forth above.
See Regennitter v. Comm’r of Social Sec. Admin., 166 F.3d 1294, 1299–1300 (9th Cir. 1999)
(quoting Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (“Indeed, we have particularly
criticized the use of a lack of treatment to reject mental complaints both because mental illness is
notoriously underreported and because ‘it is a questionable practice to chastise one with a mental
impairment for the exercise of poor judgment in seeking rehabilitation.’”).
See Clifton, 79 F.3d at 1010.
It is therefore
ORDERED that the ALJ’s decision is REVERSED AND REMANDED pursuant to
sentence four of 42 U.S.C. § 405(g) for the purposes of conducting additional proceedings as set
forth herein. The Clerk of Court shall enter judgment remanding this case and shall close this
Dated this 21st day of April, 2015.
BY THE COURT:
United States District Judge
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