LEONARD T. STRAND, United States Magistrate Judge.
Plaintiff Julie Loftis, proceeding on behalf of her now-deceased husband, Travis Loftis, seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying Travis's applications for Social Security Disability Insurance benefits (DIB) and Supplemental Security Income benefits (SSI) under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act).
Travis was born in 1974. AR 132. He completed high school and attended four years of college, but did not obtain a degree. AR 27. He had past relevant work as a sales representative and construction laborer. AR 258.
Travis protectively filed his applications for SSI and DIB on, respectively, August 31, 2009, and December 3, 2009. AR 132-39. His DIB application alleged an onset date of November 1, 1995, while his SSI application alleged an onset date of January 1, 2009.
The ALJ issued a decision denying Travis's applications on June 1, 2011. AR 8-17. On September 26, 2012, the Appeals Council denied Travis's request for review. AR 1-3. As such, the ALJ's decision is the final decision of the Commissioner. AR 1; see also 20 C.F.R. §§ 404.981, 416.1481.
On November 21, 2012, Julie commenced an action in this court seeking
A disability is defined as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. A claimant has a disability when the claimant is "not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists ... in significant numbers either in the region where such individual lives or in several regions of the country." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the regulations. 20 C.F.R. §§ 404.1520, 416.920; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir.2007). First, the Commissioner will consider a claimant's work activity. If the claimant is engaged in substantial gainful activity, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner looks to see "whether the claimant has a severe impairment that significantly limits the claimant's physical or mental ability to perform basic work activities." Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir.2003). "An impairment is not severe if it amounts only to a slight abnormality that would not significantly limit the claimant's physical or mental ability to do basic work activities." Kirby, 500 F.3d at 707; see 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a).
The ability to do basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include (1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work setting. Id. §§ 404.1521(b)(1-6), 416.921(b)(1-6); see Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 2291, 96 L.Ed.2d 119 (1987). "The sequential evaluation process may be terminated at step two only when the claimant's impairment or combination of impairments would have no more than a minimal impact on her ability to work." Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir.2007) (internal quotation marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will consider the medical severity of the impairment. If the impairment meets or equals one of the presumptively disabling impairments listed in the regulations, then the claimant is considered disabled, regardless of age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir.1998).
Fifth, if the claimant's RFC as determined in Step Four will not allow the claimant to perform past relevant work, then the burden shifts to the Commissioner to prove that there is other work that the claimant can do, given the claimant's RFC as determined at Step Four, and his or her age, education, and work experience. See Bladow v. Apfel, 205 F.3d 356, 358-59 n. 5 (8th Cir.2000). The Commissioner must prove not only that the claimant's RFC will allow the claimant to make an adjustment to other work, but also that the other work exists in significant numbers in the national economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir.2004); 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant numbers in the national economy, then the Commissioner will find the claimant is not disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). At Step Five, even though the burden of production shifts to the Commissioner, the burden of persuasion to prove disability remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir.2004).
The ALJ made the following findings:
AR 10-17.
At Step One, the ALJ found that Travis did engage in substantial gainful activity (SGA), at times, during the period of his alleged disability. AR 10. However, because there were continuous 12-months periods during which he did not engage in SGA, and because he had last engaged in SGA in December 2008, the ALJ found that Travis was not precluded from seeking benefits. Id.
At Step Two, the ALJ found that Travis had one severe impairment: schizophrenia, paranoid with psychotic features. AR 11. The ALJ also noted an additional diagnosis of "affective disorder described as bipolar" and stated that this diagnosis had essentially replaced the diagnosis of paranoid schizophrenia. Id. Regardless of the specific diagnosis, the ALJ found that Travis had a severe mental impairment that caused more than minimal interference with basic mental work activities. Id. The ALJ found no impairment of a physical nature. He stated that although Travis was diagnosed with stage II chronic kidney disease, the disease was stable and caused no particular limitations with regard to basic work activities. Id. As such, it was not a severe impairment. Id.
In his Step Three analysis, the ALJ found that Travis's severe mental impairment, either alone or in combination with any other impairments, did not meet or medically equal any listed impairment. Id. First, he noted that no physician has
The ALJ found that Travis was "no more than moderately limited in any area of basic mental functioning." Id. He also determined that Travis had mild limitations with regard to activities of daily living and moderate difficulties with social functioning, concentration, persistence or pace. Id. Finally, he found that Travis experienced no episodes of decompensation, each of extended duration. Id. He stated that while Travis had two episodes requiring psychiatric hospitalization, those episodes occurred ten years apart and each lasted less than two weeks. Id.
The ALJ also stated that he had considered the "paragraph C" criteria, as well, and found that the evidence did not establish the presence of those criteria. AR 12. As such, the ALJ determined that Travis's mental impairment did not meet or medically equal any listed impairment. Id.
At Step Four, the ALJ undertook a residual functional capacity (RFC) assessment. He found that Travis could perform a full range of work at all exertional levels but — due to his severe mental impairment — he would be limited to "short, simple tasks and brief and superficial contact with others." AR 12-15. In making this finding, the ALJ first described Travis's own allegations as to the nature and effects of his symptoms. AR 12. He noted that Travis claimed to be unable to engage in substantial gainful activity due to fatigue, depression, anxiety, low self-esteem and an inability to maintain focus or concentration. AR 12-13. The ALJ also noted that Julie, through a third-party function report and her testimony at the hearing, corroborated Travis's allegations. AR 13.
The ALJ made an express finding that these allegations were not credible to the extent that they were inconsistent with the ALJ's RFC determination. Id. He did not explain this finding in detail, instead referring to "the reasons discussed throughout this decision." Id. Those reasons appear to include (a) the ALJ's belief that the allegations were not supported by the medical evidence, (b) Travis's statements concerning his daily activities, (c) Travis's brief but apparently successful employment as a seasonal UPS worker and (d) the fact that Travis was able to complete the coursework requirements of a four-year teaching degree. AR 13-15.
After discrediting Travis's and Julie's allegations, the ALJ analyzed the other evidence in the record. He acknowledged that Travis had "a longstanding history of mental health difficulties with remote and recent hospitalizations including a 5-day admit in March 2009." AR 13. He stated that Travis's earlier hospitalization, which
The ALJ noted that Travis had "experienced a degree of waxing and waning in his condition over the years." Id. However, he observed that Travis "has done well with compliant medication management and with remaining essentially within the parameters of the residual functional capacity established above." Id. For example, the ALJ stated that in June 2010, Travis's psychiatrist cleared him to engage in student teaching with supervision to monitor for the recurrence of symptoms. Id. The ALJ also observed that Travis's global assessment of functioning (GAF) scores during the relevant period of time had generally ranged from the 50's to the 70's, suggesting functional abilities that exceeded Travis's allegations.
The ALJ noted that Travis had worked as a seasonal employee for UPS from Thanksgiving through Christmas of 2010 and reported no difficulties in performing the duties of that position. Id. Moreover, Travis completed the classroom requirements for his teaching and coaching degree during the period of his alleged disability. Id. He had not yet received his actual degree because his condition interfered with his student teaching requirements. Id. And, in fact, the ALJ noted that teaching (or student teaching) would require functional abilities beyond Travis's RFC. Id.
Next, the ALJ discussed evaluation and treatment notes from Seasons Center for Community Mental Health for the period of June 2010 through April 2011. Id. A comprehensive intake assessment in February 2011 did not, according to the ALJ, result in findings inconsistent with the ALJ's RFC determination. Id. That assessment, as completed by a social worker, indicated that Travis had been diagnosed with schizophrenia but the diagnosis was changed to bipolar disorder during his most-recent hospitalization. AR 505, 507. Travis was found to be alert and cooperative, with appropriate behavior and normal speech. AR 505. His mood and thought content were both appropriate, his perceptions were normal and his thought process was logical. AR 506. His intelligence was average, his memory was intact and he was oriented to time, place, person and purpose. Id. His judgment and insight were found to be fair. Id. It was noted that Travis was on psychiatric medications, which were being managed by a nurse practitioner. Id. Travis reported that he wanted to work and was in the process of looking for "warehouse-type" jobs. AR 511-12.
The ALJ next discussed a mental status examination conducted in May 2011 by Dawn Howley, a psychiatric nurse practitioner. AR 15. Travis was referred for the examination by his attorney. AR 545.
The ALJ then discussed the opinion evidence of record. Id. He again acknowledged that the psychiatric nurse who conducted the May 2011 assessment assigned a GAF score of 49. Id. The ALJ stated that this score reflected "fairly significant impairment." Id. He also acknowledged that the same nurse expressed concern that Travis tended to decompensate when under stress. Id. The ALJ further noted that another psychiatric nurse had provided an opinion in November 2009 that Travis was unable to be employed in a competitive work environment. Id. (citing AR 407). The ALJ gave little weight to these opinions, finding that the record did not support a conclusion that Travis was unable to engage in any basic work activities on "a regular and reliable competitive basis," especially if Travis would remain "in the confines of the [RFC] established above along with treatment and medication compliance." Id.
By contrast, the ALJ afforded great weight to the opinions provided by a state agency consultant. Id. That consultant, Dee Wright, Ph.D., conducted a records review in April 2010 and completed a written mental RFC assessment and psychiatric review technique. AR 476-93. Dr. Wright noted that an initial review had been inconclusive due to a lack of medical evidence dating back to Travis's last-insured date but that additional evidence had since been added to the record. AR 478. She determined the new evidence was sufficient for the purposes of evaluating Travis's status. Id.
Dr. Wright then summarized various treatment notes and concluded that Travis did have some limitations of function during the relevant period of time, but those limitations were moderate, at most. AR 476-78. She noted, for example, that while he was "socially avoidant," he was "able to sustain short-lived, superficial interaction with others in appropriate ways when he perceived to be in his interest to do so." AR 479.
The ALJ found that the consultant's assessment was "supported by the longitudinal evidence of record which reflects that [Travis] is no more limited than allowed for therein." AR 15. As such, the ALJ's RFC determination largely incorporates that assessment. AR 12.
The ALJ next found that Travis's RFC would not permit him to perform any of his past relevant work. AR 15. This required the ALJ to move to Step Five and determine if the Commissioner had proved that Travis could perform other work that exists in significant numbers in the national economy. Here, the ALJ relied on the VE's testimony in response to hypothetical questions from the ALJ that were based on Travis's age, education, work experience and RFC. AR 16-17, 51-56. Based on that testimony, the ALJ found that
The Commissioner's decision must be affirmed "if it is supported by substantial evidence on the record as a whole." Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.2006); see 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive...."). "Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept as adequate to support a conclusion." Lewis, 353 F.3d at 645. The Eighth Circuit explains the standard as "something less than the weight of the evidence and [that] allows for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of choice within which the [Commissioner] may decide to grant or deny benefits without being subject to reversal on appeal." Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir.1994).
In determining whether the Commissioner's decision meets this standard, the court considers "all of the evidence that was before the ALJ, but it [does] not re-weigh the evidence." Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court considers both evidence which supports the Commissioner's decision and evidence that detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir.2010). The court must "search the record for evidence contradicting the [Commissioner's] decision and give that evidence appropriate weight when determining whether the overall evidence in support is substantial." Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir.2003) (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir.1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply a balancing test to assess any contradictory evidence. Sobania v. Sec'y of Health & Human Servs., 879 F.2d 441, 444 (8th Cir.1989). The court, however, does not "reweigh the evidence presented to the ALJ," Baldwin, 349 F.3d at 555 (citing Bates v. Chater, 54 F.3d 529, 532 (8th Cir.1995)), or "review the factual record de novo." Roe v. Chater, 92 F.3d 672, 675 (8th Cir.1996) (citing Naber v. Shalala, 22 F.3d 186, 188 (8th Cir.1994)). Instead, if, after reviewing the evidence, the court finds it "possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, [the court] must affirm the [Commissioner's] denial of benefits." Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008)). This is true even in cases where the court "might have weighed the evidence differently." Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir.1992)). The court may not reverse the Commissioner's decision "merely because substantial evidence would have supported an opposite decision." Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.1984); see Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir.2005) ("[A]n administrative decision is not subject to reversal simply because some evidence may support the opposite conclusion.").
Travis raises two issues in contending that the ALJ's decision is not supported by
See Doc. No. 12. These arguments overlap and, yet, do not touch on the key issue. I will address that issue first and will then discuss the appropriate relief.
At Step Four, the ALJ found that Travis's mental RFC limited him to performing short, simple tasks with only brief and superficial contact with others. AR 12. The ALJ further found that these limitations prevented Travis from performing any of his past relevant work. AR 15. Neither party challenges this finding.
When a claimant cannot perform past relevant work, the Commissioner has the burden to establish that there is other work that the claimant can do in light of the claimant's RFC, age, education and work experience. See Bladow, 205 F.3d at 358-59 n. 5. The Commissioner must prove not only that the claimant's RFC will allow the claimant to make an adjustment to other work, but also that the other work exists in significant numbers in the national economy. Eichelberger, 390 F.3d at 591; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the Commissioner shows that the claimant can perform other work that exists in significant numbers in the national economy, then the claimant is not disabled. If the Commissioner cannot make this showing, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
This creates a problem for the Commissioner because the record in this case contains no medical opinions from any acceptable treating or examining source concerning Travis's functional limitations during the relevant periods of time. As discussed earlier, the record contains opinions from psychiatric nurse practitioners who examined Travis in 2009 and 2011. Nurse practitioners are not acceptable medical sources. Lacroix v. Barnhart, 465 F.3d 881, 886 (8th Cir.2006); see also 20 C.F.R. §§ 404.1513(a), 416.913(a) (nurse practitioners not listed as acceptable medical sources). Only an acceptable medical source can give a medical opinion. Lacroix, 465 F.3d at 886 (citing authorities).
The only acceptable medical sources who have provided medical opinions in this case are state agency consultants who reviewed Travis's records but did not examine or treat him. AR 304-34, 476-95. Pursuant to Nevland v. Apfel, 204 F.3d 853 (8th Cir.2000), this does not suffice. In Nevland, like here, the Commissioner made a Step Five determination that a claimant who could not perform past relevant work could, nonetheless, perform various jobs identified by a VE. Id. at 857. And, like here, non-treating and non-examining physicians reviewed the claimant's records and gave opinions about the claimant's RFC, which the ALJ then used in formulating hypothetical questions to a VE. Id. at 858. The Eighth Circuit Court of Appeals began its analysis as follows:
Id. at 857. The court then noted that while the record contained many treatment notes, none of the treating physicians provided opinions concerning the claimant's RFC. Id. at 858. The court then stated:
Id. [emphasis in original].
This case presents the same situation. The ALJ found that Travis had severe mental impairments and could not perform any of his past relevant work. AR 12, 15. The Commissioner thus bore the burden of proving that despite those impairments, Travis had the RFC to do some kind of work that exists in the national economy. Nevland, 204 F.3d at 857. However, the ALJ determined Travis's RFC without the benefit of a medical opinion from any doctor who actually examined him. Instead, the ALJ relied on the opinion of non-examining state agency consultants in evaluating Travis's RFC and in formulating hypothetical questions to the VE. AR 12, 15, 51-56. Because the RFC was not supported by appropriate medical evidence, the VE's answers to the hypothetical questions do not constitute substantial evidence that Travis was able to perform other work. Nevland, 204 F.3d at 858; see also Pickney v. Chater, 96 F.3d 294, 296 (8th Cir.1996).
While Travis did not raise this argument, Nevland compels me to find that substantial evidence does not support the ALJ's determination that Travis was able to perform positions that exist in the national economy and, therefore, was not disabled. That determination must be reversed.
Reversal for this reason would typically require remand with directions that the ALJ fully and fairly develop the record by obtaining a medical opinion, either from a treating source or via a consultative examination, as to Travis's RFC. Due to Travis's unfortunate death, however, an examination
However, Julie's brief amends the alleged onset date to March 15, 2009, which corresponds to Travis's last psychiatric hospitalization (AR 264-65). Doc. No. 12 at 10. She requests a finding that Travis was disabled from and after that date. Id. This date is outside of the relevant time periods for Travis's DIB and SSI applications. Moreover, this new alleged onset date effectively removes Travis's DIB application from consideration as that program requires a claimant to prove disability prior to his or her date last insured. In this case, that date was December 31, 1998. Proceeding under the SSI application alone, Julie can seek benefits dating back no longer than September 1, 2009 (the month after the month in which the application was filed), if Travis was disabled as of August 31, 2009 (the date his application was filed). See 20 C.F.R. § 416.335. It is at least feasible that the ALJ may be able to obtain a medical opinion about Travis's mental RFC from one or more of his treating sources based on the application date of August 31, 2009. As such, I will remand this case for further proceedings, as described below.
For the reasons set forth herein, the Commissioner's determination that Travis was not disabled is
On remand, the ALJ must fully and fairly develop the record by attempting to obtain medical opinions from one or more treating sources as to Travis's mental RFC on and after August 31, 2009. If the ALJ is able to obtain such evidence, then he must revisit Step Four and (if necessary) Step Five of the disability-determination process. Among other things, this would require new findings as to Travis's mental RFC and new VE testimony based on the reformulated RFC. The ALJ would then have to determine if Travis was able to perform past relevant work and, if not, whether his mental RFC would have allowed him to perform other work that was available in significant numbers in the national economy.
If the ALJ is not able to obtain a medical opinion from any treating source as to Travis's mental RFC on and after August 31, 2009, then benefits must be awarded based on that date, as the Commissioner will be unable to establish that Travis had the mental RFC to perform other work.
