Opinion
4:19-cv-239 RP-CFB
2020-03-31
Mary Margaret ANZIVINO, Plaintiff, v. Andrew SAUL, Commissioner of Social Security, Defendant.
Gail Lynn Barnett, Abendroth Russell & Barnett P.C., Urbandale, IA, for Plaintiff. David L.D. Faith, United States Attorney's Office, Des Moines, IA, for Defendant.
Gail Lynn Barnett, Abendroth Russell & Barnett P.C., Urbandale, IA, for Plaintiff.
David L.D. Faith, United States Attorney's Office, Des Moines, IA, for Defendant.
MEMORANDUM OPINION AND ORDER
ROBERT W. PRATT, Judge U.S. DISTRICT COURT
Plaintiff, Mary Margaret Anzivino, filed a Complaint in this Court on August 1, 2019, seeking review of the Commissioner's decision to deny her claim for Social Security benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq . and 1381 et seq . This Court may review a final decision by the Commissioner. 42 U.S.C. § 405(g).
Plaintiff filed applications for benefits on August 4, 2016. Tr. at 239-52. Plaintiff was almost 55 years old at the time of the hearing on September 6, 2018, before Administrative Law Judge (ALJ) Matthew J. Gordon. Tr. at 58-84. The ALJ issued a Notice of Decision – Unfavorable on October 29, 2018. Tr. at 12-27. On December 27, 2018, the Appeals Council declined to review the ALJ's decision. Tr. at 1-3. Thereafter, Plaintiff commenced this action. Both Plaintiff and the Commissioner have filed briefs and Plaintiff filed a reply brief.
At the outset of the decision, that ALJ noted that Plaintiff was insured for purposes of Title II benefits until June 30, 2021. At the first step of the sequential evaluation, 20 C.F.R. § 404.1520(a)(4), the ALJ found that Plaintiff had not engaged in substantial gainful activity after February 13, 2016, the alleged disability onset date. Tr. at 17. At the second step, the ALJ found that Plaintiff has the following severe impairments: lumbar degenerative disc disease ; cervical degenerative disc disease ; bilateral knee degenerative joint disease ; left shoulder degenerative joint disease ; peripheral neuropathy ; fibromyalgia ; occipital neuralgia ; obesity. Tr. at 18. The ALJ found that there are medically determinable impairments (major depressive disorder and adjustment disorder) which do not cause more than minimal limitations and, therefore, are not severe. Tr. at 18-21. The ALJ found that Plaintiff's impairments were not severe enough to qualify for benefits at the third step of the sequential evaluation. At the fourth step, the ALJ found:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity: she can lift and carry 20 pounds occasionally and 10 pounds frequently; she can stand and/or walk 2 hours in an 8 hour day and sit for 6 hours in an 8 hour day with normal breaks; she can never climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs; occasionally balance, stoop, kneel, crouch, and crawl; occasional overhead reaching with the left upper extremity.
Tr. at 22. The ALJ found that Plaintiff is able to perform her past relevant work as a collection clerk. Tr. at 26. The ALJ found that Plaintiff is not disabled nor entitled to the benefits for which she applied. Tr. at 27.
MEDICAL EVIDENCE
The record of this case indicates an extensive record of treatment for various physical and mental impairments. Between March 30, 2015 and July 30, 2018, Plaintiff was seen for medical care one hundred six times. Because there is no dispute that Plaintiff is limited to sedentary exertional labor, there is no need to summarize the physical impairments in this review. Rather, the Court will focus on Plaintiff's mental impairments which are the proverbial "bone of contention" herein.
On November 16, 2015, Plaintiff saw Jean Paul, D.O. at the Mercy North clinic. Tr. at 523-26. Plaintiff complained of left clavicle pain. Plaintiff also reported a tender skin lesion on her scalp. The doctor listed sixteen active problems including anxiety and depression. Tr. at 523.
On July 11, 2016, Plaintiff saw Dr. Paul. Tr. at 489-94. Dr. Paul noted that Plaintiff was being followed for anxiety disorder. On this occasion, Plaintiff reported doing well with no interval events. The doctor wrote that both anxiety and depression were stable and asymptomatic. Tr. at 489. Plaintiff's medication included Duloxetine HCI (Cymbalta ). Tr. at 490.
On September 6, 2016, Harmony Linden, L.I.S.W., of Center for Life Counseling, wrote that Plaintiff had attended therapy sessions on a weekly basis since August 8, 2016. Ms. Linden wrote: "My diagnostic impression is that Mary meets criteria for Major Depressive Disorder, moderate, recurrent episode. Mary describes difficulty in activities of daily living, including getting out of bed, making meals, concentrating, and engaging in social interactions." Tr. at 453.
On October 14, 2016, Charles Korte, M.D., a State agency medical consultant reviewed the evidence in Plaintiff's file. Tr. at 94-97. The doctor determined that Plaintiff retains the residual functional capacity to occasionally lift and carry up to twenty pounds, and frequently lift and carry up to ten pounds. The doctor determined that Plaintiff can stand/walk for a total of two hours of an eight-hour day and sit for about 6 hours. Tr. at 95.
On October 27, 2016, Plaintiff saw Jerald Catron, Ph.D., for a psychological evaluation. Tr. at 456-60. Dr. Catron noted that Plaintiff walked into his office with a normal gait, and that she had driven to the appointment. It was noted that Plaintiff presented as though she had difficulty hearing and stated that she could not wear hearing aids because of an allergy to the material. Tr. at 456-57. Among her prescribed medication, Plaintiff was taking duloxetine for depression. Plaintiff reported the following history: "at age 16 she was hospitalized at Iowa Lutheran Hospital for overdose. She was also hospitalized for mental illness during her 30s at Broadlawns Medical Center, Iowa Lutheran Hospital, and Mercy Hospital." Tr. at 457. The Mini-Mental State Examination produced a score of 29 and did not suggest severe impairment of global cognitive functioning. Tr. at 458-59. Plaintiff reported that on the day of the examination she did not have depression but was anxious about the evaluation. After the interview, Dr. Catron that Plaintiff did not appear to be depressed, anxious or psychotic. Plaintiff did not display any bizarre or morbid behavior. The doctor found no evidence of thought disorder, hallucinatory experience, dissociative phenomena, delusions, suicidal ideation, idiosyncratic symbolic logic, or paranoid mentation. There were no problems with concentration or attention, but pace was below average throughout. "There were no other pathognomonic signs or symptoms of mental illness." Tr. at 459. Dr. Catron diagnosed: (1) major depressive disorder recurrent, moderate; (2) adjustment disorder with mixed anxiety and depressed mood. Dr. Catron wrote:
This individual is capable of managing her own funds. She has mild to moderate impairments from mental illness. She was clearly presenting herself as unable to work primarily due to her medical conditions, and she did not describe severe impairment in activities of daily living from any mental condition. She does not suffer from severe cognitive errors that in my experience result from a mental illness diagnosis. Her history and presentation at this evaluation indicated that she can remember and understand instructions, procedures, and locations without severe impairment from mental illness. She displayed no apparent problem remaining on topic. She would not have mental disorder symptoms likely to severely impair functioning for carrying out complex, sequenced instructions satisfactorily when she chooses to do so. There was no indication of severe problems with attention
or concentration. She reported no difficulty getting along with other people on the job or in the community. Her judgment capability was no severely impaired from mental illness for coping with changes in the work place for full-time competitive employment. From a psychological standpoint, I found no other severely impairing limitations in specified work-related activities due to impairment caused by mental illness.
Tr. at 460.
On October 28, 2016, Plaintiff's case file was reviewed by Jonathan Brandon, Ph.D., a State agency psychological consultant. Tr. at 92-93. Dr. Brandon wrote that Plaintiff was limited primarily by physical impairments. Dr. Brandon pointed to Plaintiff's mental abilities to socialize, shop, go out alone, manage money, prepare meals, do light housework, manage her personal care, and care for pets. Mental limitations were difficulty managing stress, difficulty with concentration and attention and following instructions regarding her medication. Dr. Brandon noted Ms. Linden's letter in support of Plaintiff's claim but wrote: "The therapist reports limitations to [activities of daily living] which are not supported by the claimant's functioning report or her report at [Dr. Catron's examination]." Dr. Brandon wrote that while Plaintiff was diagnosed with anxiety and depression, there was little evidence in the file that those conditions impacted her functioning. Dr. Brandon pointed out that Plaintiff engages in a wide range of multistep mental activities, is able to maintain social functioning and maintain adequate concentration, persistence and pace. Plaintiff had no document episodes of decompensation of extended duration. For those reasons, Dr. Brandon determined that Plaintiff's mental impairments were non-severe. Tr. at 93.
On November 1, 2016, Plaintiff saw Dr. Paul for a recheck of her back pain. Tr. at 481-85. The doctor renewed prescriptions for hydrocodone-acetaminophen and cyclobenzaprine. The doctor also gave Plaintiff an injection. Also diagnosed was depression for which the doctor advised Plaintiff to continue taking Duloxetine, both 30 mg and 60 mg tablets, for depression. Tr. at 484.
On December 5, 2016, Harmony Linden, L.I.S.W., wrote that Plaintiff had been seen for nine therapy sessions between August and the date of the letter. Ms. Linden opined that Plaintiff meets the criteria for Major Depressive Disorder, moderate, recurrent episode. "Mary describes difficulty in activities of daily living, including getting out of bed, making meals, concentrating and engaging in social interactions." Ms. Linden wrote that Plaintiff was working on finding supports to help her take care of herself and children, and to work on adjusting to changes related to knee pain. Tr. at 572.
On December 14, 2016, Aidaluz Tirado, Psy.D., a State Agency psychological consultant reviewed the claim file and affirmed the findings of Dr. Brandon. Tr. at 124. John May, M.D, a State agency medical consultant, reviewed the evidence in the claim file and affirmed the findings of Dr. Korte. Tr. at 128.
On January 11, 2017, Plaintiff was seen by Ana A. Valencia, ARNP for a Counseling & Psychiatry Diagnostic Assessment. Tr. at 814-18. Plaintiff reported symptoms of depression and anxiety. Plaintiff reported that Cymbalta was not working as well as it once did to control depression. Describing her depression, Plaintiff reported that she can be in a grocery store and begin to cry. Plaintiff reported anxiety but not panic attacks. Plaintiff reported disturbed sleep, increased guilt, and decreased energy. Plaintiff attributed difficulty remembering and concentrating to her pain medication. Tr. at 815. Plaintiff reported that she was seeing a mental health therapist. Tr. at 816. On mental status exam, mood was described as anxious and depressed. Tr. at 817. Diagnoses were Major Depressive Disorder recurrent moderate and anxiety not otherwise specified. Nurse Valencia increased the dosage of Plaintiff's medication – Cymbalta to 120 mg per day and opined that Plaintiff would need services for "more than 1 year." Tr. at 818.
On February 6, 2017, Plaintiff saw Nurse Valencia. Tr. at 819-21. Plaintiff reported that she was sleeping all the time, and that Cymbalta was not relieving the depression. The Nurse advised Plaintiff how to reduce the dosage to 60 mg, and then to begin taking Celexa. Tr. at 820-21.
On March 8, 2017, Plaintiff saw Nurse Valencia. Tr. at 822-24. Plaintiff was very irritable. She reported that she was not taking her medication because she felt worse on them. Tr. at 823. Nurse Valencia prescribed Lexapro. Tr. at 824.
On May 23, 2017, Plaintiff saw Nurse Valencia. Tr. at 825-27. Plaintiff reported that she had cataract surgery in the interim since her March 8th appointment. Plaintiff reported an increase in anxiety. Plaintiff thought the Lexapro was beginning to help her. Nurse Valencia added a prescription of Abilify. Tr. at 826.
On July 20, 2017, Plaintiff was seen by Holley A. Bermel, D.O. at UnityPoint Health. Tr. at 622-29. It was noted that Plaintiff was seeking to establish primary care. Among the diagnoses was Severe episode of recurrent major depressive disorder, without psychotic features, and major depressive disorder, recurrent episode, moderate. Tr. at 622. Plaintiff reported that she has chronic pain syndrome and fibromyalgia with ongoing severe burning pain in her feet and lower legs. Plaintiff also complained of depression. Plaintiff's medications were listed as Elavil, Abilify, Lexapro, Neurontin, Norco, Zocor, Ultram, and Ventolin inhaler. Tr. at 623-24. On examination, Plaintiff was noted to be depressed. Tr. at 624. Dr. Bermel noted that Plaintiff's psychiatric medications were prescribed by Nurse Valencia. Tr. at 625.
On July 21, 2017, Plaintiff saw Nurse Valencia. Tr. at 828-30. Plaintiff reported a high level of anxiety. Plaintiff reported feeling like a cat on a hot tin roof. The nurse observed that Plaintiff's finger tips were raw from picking and biting due to anxiety. Plaintiff told the nurse that she had not noticed side effects from Abilify. Plaintiff reported that she had been diagnosed with fibromyalgia. Tr. at 829. The dosage of Abilify and Amitriptyline were both increased; Lexapro was continued. Tr. at 830.
On August 17, 2017, Plaintiff saw Dr. Bermel. Tr. at 630-39. Plaintiff reported that she felt better off the hydrocodone but reported that relief from tramadol does not last long enough. Tr. at 631. The doctor advised Plaintiff to take Tylenol along with the tramadol. The doctor also increased the dosage of amitriptyline which Plaintiff was taking. Tr. at 633.
On September 1, 2017, Plaintiff saw Nurse Valencia. Tr. at 831-33. Plaintiff reported that she had been feeling well after the pain injections, but while rearranging her house she fell to the floor and couldn't get up. Nurse Valencia was aware that Dr. Bermel had increased the dosage of amitriptyline, and Plaintiff reported that she was sleeping better. Plaintiff told the doctor: "This depression, I'm not crying all the time, but I don't want to do anything. It's not like because of the pain I can't, I just can't do it. Things around my house. I'm not showering. It's almost like I don't care." Plaintiff described her depression as "feels empty and indifferent," as opposed to being in a black hole. Plaintiff reported improvement in her anxiety while taking Abilify. Tr. at 832. Diagnoses were severe episode of recurrent major depressive disorder without psychotic features, and anxiety disorder unspecified type. The nurse increased the dosage of Abilify and Amitriptyline. Tr. at 833.
On September 14, 2017, Plaintiff saw Dr. Bermel. Tr. at 643-47. Diagnoses included psychophysiological insomnia. Plaintiff reported that she had undergone an eye surgery to remove xanthelasmas (soft, yellow-orange plaques on the eyelids. Stedmans Medical Dictionary), and that the surgeon had prescribed hydrocodone. Plaintiff was not taking tramadol but told the doctor that it had been working quite well for her. Plaintiff reported improvement in the neuropathy in the hands and feet since the doctor increased the dosage of gabapentin. Tr. at 643-44. Plaintiff reported sleeping better while on amitriptyline, but the doctor noted that Plaintiff was positive for sleep disturbance. Tr. at 644.
On October 10, 2017, Plaintiff saw Nurse Valencia. Tr. at 834-37. Plaintiff complained of anxiety. Plaintiff reported that she had to leave a store because she felt trapped. Plaintiff reported that she had recently fallen and injured her leg. Tr. at 835. The nurse prescribed Vistaril for anxiety. Tr. at 837.
On November 20, 2017, Plaintiff saw Nurse Valencia. Tr. at 838-41. Plaintiff reported that since her previous visit, she had broken her knee cap, but that it was healing. Plaintiff said she tried the Vistral once, but it made her shake, so she didn't take it again. Plaintiff complained of both anxiety and depression. On mental status examination, the nurse noted psychomotor retardation due to Plaintiff's knee injury. Tr. at 839. Nurse Valencia discontinued Vistral and prescribed Atarax. Tr. at 840.
On January 30, 2018, Plaintiff saw Nurse Valencia. Tr. at 842-44. Plaintiff reported difficulty sleeping, she said she goes to bed at 10:00 or 10:30 p.m., but does not fall asleep until 1:00 or 2:00 a.m. It was noted that Plaintiff had lost four pounds since her previous visit. Plaintiff reported that anxiety and depression were both increased. The Nurse noted Plaintiff had been biting her fingers again. Tr. at 843. Nurse Valencia ordered GeneSight Testing. Tr. at 844.
On March 2, 2018, Plaintiff saw Nurse Valencia. Tr. at 845-47. Plaintiff reported that she was working part time and that she had reapplied for work at Optimae—a previous employer. Tr. at 846. Plaintiff's medications were continued. Tr. at 847.
On April 4, 2018, Plaintiff saw Nurse Valancia. Tr. at 848-50. Plaintiff was still working part time and reported that she had not been rehired at Optimae as expected. Plaintiff reported that her depression had begun to worsen two or three weeks before the appointment. Tr. at 849. The nurse adjusted the dosage of Plaintiff's medications. Tr. at 850.
On May 9, 2018, Plaintiff saw Nurse Valencia. Tr. at 851-53. Plaintiff's medication dosage was adjusted. Tr. at 853.
On June 13, 2018, Plaintiff saw Nurse Valancia. Tr. at 854-56. Plaintiff was working and looking for better paying work. Tr. at 855. The nurse adjusted the dosage of Plaintiff's medications. Tr. at 856.
On July 26, 2018, Nurse Valencia adjusted the dosage of Plaintiff's medications.
On August 8, 2018, Nurse Valencia completed a treating source statement. Tr. at 619-21. In response to a request to outline the diagnosis, course of treatment, and prognosis, the Nurse wrote:
Major Depressive Disorder, recurrent, moderate—although has become severe at times. Anxiety disorder- unspecified type. Mary is compliant with treatment [which] consists of medication management. Mary has tried multiple psychiatric mediations with minimal success. She often experiences intolerable side effects before a therapeutic dose can be achieved.
Tr. at 621. In a "check-the-box" format, the nurse was asked to rate Plaintiff's limitations on a scale of (1) not significantly limited; (2) mildly limited (slightly impaired); (3) moderately limited (ability to function is fair); (4) markedly limited (seriously limited); (5) extremely limited (inability to function). Out of 17 domains, five were checked not significantly limited, twelve were checked moderately limited, five were checked markedly limited, and none were checked extremely limited. Tr. at 620-21.
Regarding Plaintiff's ability to understand and remember, Nurse Valencia wrote: "Mary has reported difficulties with memory, focus, and concentration for several months now. She will sometimes ask that questions be repeated. She has been observed losing her train of thought during appointments. At her last appointment, she had a delayed response time in answering questions which had not been observed before."
Regarding concentration and persistence, the nurse wrote: "Mary has a significant history of anxiety and panic attacks. Routine day to day activities, such as grocery shopping have become difficult and at times impossible. Anxiety and depression are daily problems for Mary and I feel she would have great difficulty maintaining gainful employment." Tr. at 620.
Regarding social interaction, Nurse Vanencia wrote: "Mary's anxiety is often triggered in/by social situations. She often takes things personally and may not be able to handle criticism. I would imagine any sort of conflict would lead to an increase in anxiety."
Regarding the ability to adapt, the nurse wrote: "Change can be hard for Mary and impacts her anxiety. Going to new and unfamiliar places would also worsen anxiety." Tr. at 621.
HEARING TESTIMONY
At the hearing, after Plaintiff testified, the ALJ called a vocational expert, Tr. at 81, who testified that if Plaintiff were limited in the same way as the ALJ found at step four of the sequential evaluation, Tr. at 82, she would be able to perform her past relevant work as a collection clerk. Tr. at 82. The vocational expert went on to testify, that if Plaintiff, because of pain and mental impairments were limited to unskilled work, her past relevant work would not be possible. Tr. at 82-83. Finally, that vocational expert testified that if a hypothetical individual needed to take unscheduled breaks, requiring absence from the workstation for twenty percent of a workday, competitive work would be precluded. Tr. at 83.
THE ALJ's DECISION
As noted above, the fighting issue in this case is the severity of Plaintiff's mental impairments. The ALJ noted that Plaintiff's medically determinable mental impairments are major depressive disorder and adjustment disorder. To determine if the impairments were severe, the ALJ wrote that he considered the four broad areas of mental functioning set out in 20 C.F.R., Part 404, Subpart P, Appendix 1, also known as the paragraph B criteria of the listings of impairment for mental impairments. The ALJ found a mild limitation in the area of understanding, remembering, or applying information. The ALJ found a mild limitation in the area of interacting with others. Tr. at 18. The ALJ found a mild limitation in Plaintiff's ability to concentrate, persist, or maintain pace. The ALJ found no limitation in Plaintiff's ability to adapt or manage herself. The ALJ wrote: "The evidence of record does not demonstrate that her mental impairments cause more than a minimal limitation in her ability to perform basic mental work activities and are therefore nonsevere. The claimant's history of mental impairments predates the alleged onset date, and treatment included medication. However, treatment for the claimant's physical impairments immediately prior to the alleged onset date indicate the claimant denied depression and anxiety." Tr. at 19.
Recall that this was the diagnosis made by Dr. Catron when he evaluated Plaintiff on October 27, 2016. Tr. at 460.
The ALJ gave little weight to the opinion rendered by Dr. Catron because the psychologist failed to indicate whether the limitations which he identified are mild or moderate. Tr. at 20.
The ALJ gave little weight the opinion rendered by Nurse Valencia because he found the objective evidence of record indicates the claimant not as limited as the nurse opined. The ALJ wrote: "During the claimant's consultative examination, she performed well on the Mini Mental Status examination, interacted appropriately, and displayed no severe problems with immediate, recent, or remote memory functioning." Tr. at 21.
DISCUSSION
We will affirm the ALJ's decision "[i]f the ALJ's findings are supported by substantial evidence on the record as a whole," an inquiry that requires us to consider evidence in the record that detracts from the ALJ's decision. Wagner v. Astrue , 499 F.3d 842, 848 (8th Cir. 2007). "Substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the decision." Reutter ex rel. Reutter v. Barnhart , 372 F.3d 946, 950 (8th Cir. 2004).
We will not reverse the ALJ's "denial of benefits so long as the ALJ's decision falls within the ‘available zone of choice.’ " Bradley v. Astrue , 528 F.3d 1113, 1115 (8th Cir. 2008) (quoting Nicola v. Astrue , 480 F.3d 885, 886 (8th Cir. 2007) ). The decision of the ALJ "is not outside the ‘zone of choice’ simply because we might have reached a different conclusion had we been the initial finder of fact." Id. (quoting Nicola , 480 F.3d at 886 ). Rather, "[i]f, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ's findings, the court must affirm the ALJ's decision." Goff v. Barnhart , 421 F.3d 785, 789 (8th Cir. 2005).
Owen v. Astrue , 551 F.3d 792, 798 (8th Cir. 2008). In Brand v. Secretary of Dep't of Health, Education and Welfare , 623 F.2d 523, 527 (8th Cir. 1980), Chief Judge Lay wrote that Universal Camera Corp. v. NLRB , 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951), is "the guideline for the evaluation of the standard of review." In Universal Camera , the Court wrote:
We conclude, therefore, that the Administrative Procedure Act and the Taft-Hartley Act direct that courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not
to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.
340 U.S. at 490, 71 S.Ct. 456. In reviewing disability decisions from the Social Security Administration, the Court sits in an appellate capacity and is responsible for giving the agency decision a scrutinizing analysis. This requires the Court to determine the substantiality of the evidence by determining if the ultimate decision is supported by substantial evidence on the record as a whole. Gavin v. Heckler , 811 F.2d 1195, 1199 (8th Cir. 1987). In Gavin , the Court wrote:
In the review of an administrative decision, "[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Thus, the court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory. It follows that the only way a reviewing court can determine if the entire record was taken into consideration is for the district court to evaluate in detail the evidence it used in making its decision and how any contradictory evidence balances out.
Id. (citations omitted).
In short, a reviewing court should neither consider a claim de novo, nor abdicate its function to carefully analyze the entire record. Wilcutts v. Apfel , 143 F.3d 1134, 1136-37 (8th Cir. 1998) (citing Brinker v. Weinberger , 522 F.2d 13, 16 (8th Cir. 1975) ).
The most important issue in any disability case that proceeds beyond step three of the sequential evaluation is that of residual functional capacity:
Probably the most important issue will be the question of [residual functional capacity] ... The RFC that must be found ... is not the ability merely to lift weights occasionally in a doctor's office; it is the ability to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.
McCoy v. Schweiker , 683 F.2d 1138, 1147 (8th Cir. 1982) (en banc).
For reversal, Plaintiff argues that the ALJ erred at step two of the sequential evaluation by failing to find a severe mental impairment. Plaintiff also argues that Plaintiff should prevail under Rule 201.14 of the Medical Vocational Guidelines.
The first reason the ALJ gave for finding Plaintiff's mental impairments to be non-severe is that they do not cause more than minimal limitations in the ability to perform basic mental work activities when the "four broad areas of mental functioning" are considered. Because the ALJ found the limitations to be mild or none in those four areas, he determined that Plaintiff's mental impairments are not severe.
20 C.F.R. § 404.1520a is entitled Evaluation of mental impairments. The regulation states that it must first be determined if the claimant has a medically determinable impairment(s). Id. at (3)(b)(1). In this case the ALJ found that Plaintiff has medically determinable impairments of major depressive disorder and adjustment disorder. Substantial evidence would support a finding that anxiety is a medically determinable impairment which must be considered at this stage of the sequential evaluation. The regulation states that if one or more medically determinable impairments are found, the degree of functional limitation is then rated. The regulation states:
Assessment of functional limitations is a complex and highly individualized process that requires us to consider multiple issues and all relevant evidence to obtain a longitudinal picture of your overall degree of functional limitation. We will consider all relevant and available clinical signs and laboratory findings , the effects of your symptoms, and how your functioning may be affected by factors including, but not limited to, chronic mental disorders, structured settings, medication, and other treatment.
Id. at (c) emphasis added. The regulation then goes on to describe the four broad functional areas which were considered by the ALJ. The regulation states:
If we rate the degree of your limitation as "none" or "mild," we will generally conclude that your impairment(s) are not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in your ability to do basic work activities. See § 404.1522.
Id. at (d)(1) (emphasis added). § 404.1522 defines basic work activities as: "the abilities and aptitudes necessary to do most jobs." Examples given are the ability to respond appropriately to supervision, co-workers and usual situations, and dealing with changes in a routine work setting.
The ALJ's finding is consistent with the evaluations made by the State agency psychological consultants. If their evaluation of the evidence and the report of Dr. Catron were the only evidence in the record, the Court would hold that the ALJ's decision was supported by substantial evidence on the record as a whole.
However, the record contains substantial evidence which detracts from the ALJ's findings. The regulation states that if there is evidence in the record which indicates more than a minimal limitation in the ability to do basic work activities, the medically determinable impairments will be found severe at the second step of the sequential evaluation. As noted in the summary of the medical evidence above, Plaintiff has been treated for anxiety and depression by (1) Harmony Linden, L.I.S.W., who noted impairment in activities of daily living, including getting out of bed, making meals, concentrating, and engaging in social interactions; (2) Jean Paul, D.O. who diagnosed anxiety and depression for which Cymbalta was prescribed; (3) Holley A. Bermel, D.O. who diagnosed severe episodes of recurrent major depressive disorder, without psychotic features, and major depressive disorder, recurrent episode, moderate, and who prescribed mediation in coordination with Nurse Valencia; (4) Ana A. Valencia, ARNP, treated Plaintiff's depression and anxiety since January 2017, and opined (a) that because of Plaintiff's impairments, she would have great difficulty maintaining gainful employment, (b) because of Plaintiff's anxiety, she may not be able to handle criticism or conflict, and (c) change as well as new and unfamiliar places aggravates Plaintiff's anxiety. All of this evidence is relevant and all of it detracts from the ALJ's decision that Plaintiff's mental impairments are not severe.
A Licensed Independent Social Worker is not an "Acceptable medical source as defined by 20 C.F.R. § 404.1502(a)(1-8). However, such an individual is a "Nonmedical source" defined as "an individual who is licensed as a healthcare worker by a State and working within the scope of practice permitted under State or Federal law." Id. at (d). In Iowa, LISWs are licensed by the Iowa Board of Social Work. Iowa Admin. Code r. 282-16.6(2)(b). To be licensed, an applicant must hold a Master or Doctorate of Social Work degree from an accredited university or college, and must provide verification of at least 4000 hours of clinical professional experience under an approved supervision plan to apply for your LCSW title. The applicant must have performed diagnosis, assessment and treatment over a minimum of two years and no more than six years of professional employment. The applicant must also have at least 110 hours of supervision during a two-year period with no more than sixty of those hours with groups who must be six or less in size. See https://www.humanservicesedu.org/iowa-social-work-requirments.html (last visited March 30, 2020).
Because Plaintiff's claim was filed before March 27, 2017, Nurse Valencia does not meet the definition of an acceptable medical source. 20 C.F.R. § 404.1502(a)(7). Nevertheless, Nurse Valencia is a medical source who is licensed as a healthcare worker by the State of Iowa and working within the scope of practice permitted by the State. Id. at (d).
As noted above, neither Nurse Valencia nor Ms. Linden are acceptable medical sources under the regulations applicable to the case at bar. Their opinions are still entitled to consideration. In Lawson v. Colvin , 807 F.3d 962, 967 (8th Cir. 2015), the Court wrote:
"Social Security separates information sources into two main groups: acceptable medical sources and other sources. It then divides other sources into two main groups: medical sources and non-medical sources. " Sloan v. Astrue , 499 F.3d 883, 888 (8th Cir. 2007) (citing 20 C.F.R. §§ 404.1502, 416.902 ). Nurse practitioners and therapists "are specifically listed as ‘other’ medical sources who may present evidence of the severity of the claimant's impairment and the effect of the impairments on the claimant's ability to work." Lacroix [v. Barnhart] , 465 F.3d [881] at 887 [(8th Cir. 2006)] (citing 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) ). Evidence provided by "other sources" must be considered by the ALJ; however, the ALJ is permitted to discount such evidence if it is inconsistent with the evidence in the record. See id. at 886–87 ; see also Raney v. Barnhart , 396 F.3d 1007, 1010 (8th Cir. 2005) ("In determining what weight to give ‘other medical evidence,’ the ALJ has more discretion and is permitted to consider any inconsistencies found within the record.") (citation omitted).
The ALJ wrote that he gave Nurse Valencia's opinion little weight because it was inconsistent with the Mini Mental Status examination performed by Dr. Catron. Dr. Catron saw Plaintiff one time early in the application process. Likewise, the opinions of the State agency psychological consultants were rendered before the treatment records and opinions regarding the mental impairments had been submitted. Therefore, their opinions were based on incomplete information. On the other hand, Nurse Valencia's opinion was based on numerous treatment encounters, and it is consistent with the evidence provided by the other acceptable treating sources, both of which are physicians. The ALJ's reasons for discounting Nurse Valencia's opinion do not withstand the scrutiny demanded by judicial review. Furthermore, the question is not whether or not Plaintiff is completely disabled by mental impairments, only if the mental impairments reduce Plaintiff's residual functional capacity such that she is limited to unskilled work at the exertional level found by the ALJ.
When the effects of Plaintiff's pain, anxiety and depression were considered by the vocational expert, it was his testimony that Plaintiff's past relevant work would be precluded. Plaintiff is correct that a finding of disabled is required for person of Plaintiff's age, who is precluded from performing her past relevant work, and who is limited to unskilled sedentary work. See Rule 201.14 of 20 C.F.R. Appendix 2 to Subpart P of Part 404 – Medical-Vocational Guidelines.
In Gavin , as in this case, the ALJ erred by finding that Gavin was able to perform his past relevant work. 811 F.2d at 1201. The Court found the ALJ's finding was not supported by substantial evidence on the record as a whole, and wrote:
Ordinarily, where the Secretary has incorrectly allocated the burden of proof based upon an erroneous finding that the claimant can return to his prior work, we will remand for further proceedings. However, where the total record is overwhelmingly in support of the finding of disability and the claimant has demonstrated his disability by medical evidence on the record as a whole, we find no need to remand.
Gavin , 811 F.2d at 1201. In Parsons v. Heckler , 739 F.2d 1334, 1341 (8th Cir. 1984), the Court held: "Where further hearings would merely delay receipt of benefits, an order granting benefits is appropriate." In Papesh v. Colvin , 786 F.3d 1126, 1135 (8th Cir. 2015), the Court wrote that an immediate finding of disability is appropriate only if the record overwhelmingly supports such a finding. The Papesh Court cited Fowler v. Bowen , in which the court wrote: "When the record is overwhelmingly in support of a finding of disability, there is no need to remand to the Secretary for further consideration." 866 F.2d 249, 253 (8th Cir. 1989) (citing Griffon v. Bowen , 856 F.2d 1150, 1154 (8th Cir. 1988) ; Gavin , 811 F.2d at 1201 ; Parsons , 739 F.2d at 1341 ). In Griffon , Judge Richard S. Arnold, writing for the court noted that Griffon's doctor concluded he was completely disabled due to a medically determinable impairment, and Griffon's complaints were corroborated by the medical evidence. Griffon's case was remanded for an award of benefits.
Likewise, in the case at bar, the Court finds the total record is overwhelmingly in support of the finding of disability and the claimant has demonstrated her disability by medical evidence on the record as a whole.
CONCLUSION AND DECISION
The Court has considered the evidence that supports, as well as the evidence that detracts, from the decision made by the ALJ. After applying the balancing test noted in Gavin , 811 F.2d at 1199, and cases cited therein, this Court holds that the final decision of the Commissioner is not supported by substantial evidence on the record as a whole. The case is reversed and remanded for an award of the benefits to which Plaintiff is entitled.
The judgment to be entered will trigger the running of the time in which to file an application for attorney's fees under 28 U.S.C. § 2412(d)(1)(B) (Equal Access to Justice Act). See McDannel v. Apfel , 78 F. Supp. 2d 944, 950–54 (S.D. Iowa 1999) (discussing, among other things, the relationship between the Equal Access to Justice Act and fees under 42 U.S.C. § 406(b)(1) and LR 54.A(b)); see also Gisbrecht v. Barnhart , 535 U.S. 789, 122 S. Ct. 1817, 1821, 152 L.Ed.2d 996 (2002) ; Mitchell v. Barnhart , 376 F. Supp. 2d 916 (S.D. Iowa 2005).
N.B. Counsel is reminded that LR 54.A(b), states that an EAJA application "must specifically identify the positions taken by the government in the case that the applicant alleges were not substantially justified."
IT IS SO ORDERED.