ROBERTO A. LANGE, District Judge.
Plaintiff Kodee R. Beckett (Beckett) seeks reversal of the decision of the Acting Commissioner of Social Security (Commissioner) denying her claim for supplemental security income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. § 1382. Doc. 17. The Commissioner argues for affirming denial of benefits. Doc. 19. For the reasons explained below, this Court vacates and remands the Commissioner's decision for further consideration.
Beckett protectively filed her Title XVI application on February 22, 2013, alleging disability due to anxiety, depression, oppositional defiant disorder, bipolar disorder, and attention deficit hyperactivity disorder (ADHD), which she alleged began on June 21, 2006. AR
Beckett filed a request for a hearing before an Administrative Law Judge (ALJ) on April 27, 2014. AR 178. That hearing was held by video conference on March 24, 2015, before ALJ Hallie E. Larsen. AR 37. The ALJ issued a decision determining that Beckett was not disabled under the adult disabihty rules on July 7, 2015. AR 37-57. Beckett filed a request for a review of the ALJ's decision on August 10, 2015. AR 33. Beckett's counsel, Elizabeth Overmoe, left South Dakota Advocacy Services and Overmoe's former supervisor, John A. Hamilton, then represented Beckett. Hamilton wrote a letter to the Office of Disability Adjudication and Review dated December 9, 2015, reiterating an earlier request for a hearing transcript and requesting additional time to submit a brief and file any new evidence. AR 31. After some apparent conflision,
Beckett was born March 30, 1995, and thus attained the age of 18 on March 30, 2013. AR 750. Beckett grew up on her parents' ranch near Miller, South Dakota, and has a history of tension with her parents, particularly her mother. AR 750. She reported being sexually assaulted at the age of eleven, but no charges were filed and the incident was apparently handled informally. AR 750.
In 2006, Beckett was diagnosed with pediatric bipolar disorder, and it was recommended she be placed on psychotropic medications, engage in weekly behavioral therapy, and be placed on an Individual Education Plan (IEP) in order to function in school. AR 616-23. Beckett underwent psychoeducational testing assessments in 2006, 2009, and 2012, meeting the eligibility criteria for assistance under South Dakota Special Education guidelines for serving children with an emotional disturbance. AR 823-34. Beckett graduated from Miller High School in May of 2013. AR 396. Beckett attended Mitchell Technical Institute in the fall of 2013, but was expelled for missing classes. AR 87, 516, 837. Her most significant employment experience was just under five months as a checkout clerk for a grocery store in Huron (Tucker's Super Valu [sic], Inc.)
The earliest treatment record of any kind for Beckett in the Administrative Record is the psychological report produced by James D. Wright, Ph.D., in June of 2006 when Beckett was 11 years old. AR 616-23, 758-66. Beckett and her family reported to Wright that Beckett had been exhibiting significant symptoms for several years which included irritability, defiance, poor attention and concentration, insufficient response to psychotropic medications, disobedience, argumentativeness, severe moodiness, insomnia, frequent urinary tract infections, and, social problems. AR 616. Prior to this evaluation, Beckett had already been diagnosed with ADHD but had mixed results with ADHD medications such as Strattera
On March 3, 2012, psychologist Ted Williams, Ed.D., produced his report for Beckett's psychoeducational reevaluation
Records from the Highmore clinic show part of Beckett's treatment relationship with Pauline Bevers, P.A.C. AR 624-56, 767-75. On November 5, 2012, Bevers increased Beckett's Lexapro dosage to 20 mg at the request of Beckett's behavioral counselor Beth Kelsey. AR 635. On November 29, 2012, Bevers refilled a prescription for Ativan,
Beckett returned to Bevers on October 4, 2013, to discuss possible options regarding her medications. Beckett indicated that she had recently been using Ativan more so than in the past to deal with panic attacks which she was experiencing almost nightly. AR 770. Beckett informed Bevers that she was experiencing chest tightness and abdominal pain, and had been to the emergency room several times.
Records from Avera Hand County Clinic span from March of 2012 to April of 2013.
Frank L. Dame, Ph.D., produced a psychological evaluation report on July 27, 2013, after Beckett was referred to him by the Disability Determination Services office of the South Dakota Department of Human Services. AR 749-56. Dr. Dame's report details Beckett's psychoeducational assessments and notes the findings in those assessments—high average to average ability in verbal comprehension and perceptual reasoning abilities, average functioning in processing speed, low average ability in working memory and significant problems with mental control—were consistent with other evaluations and diagnoses he reviewed, as well as the results of his own examination. AR 751. Beckett informed Dr. Dame of two previous hospitalizations, one at the Human Services Center in Yankton, South Dakota, and another at Avera-McKennan Behavioral Health Services in Sioux Falls, South Dakota. AR 752. During the mental status examination, Beckett displayed symptoms of anxiety and depression which reached levels of clinical significance episodically. AR 753. He further observed that Beckett expressed a constant sense of frustration about the conflicts between her mother and herself, as well as others, was reactive to criticism, weak in her ability to cope with frustration, overreacted emotionally and acted out impulsively. AR 753. Dr. Dame described Beckett as impulsive, reactive, and dominated by conflicts with her mother and other authority figures. AR 753. Beckett expressed her belief that she had the skills to succeed in vocational training and independent living, and that increased distance from her mother, facilitated by living in an apartment in Mitchell while attending Mitchell Technical Institute, would reduce the stressors in her life. AR 754. Dr. Dame diagnosed Beckett with panic disorder without agoraphobia, ADHD not otherwise specified, depressive disorder not otherwise specified, and borderline personality disorder. AR 754. He also gave her a Global Assessment of Functioning (GAF) score of 55.
Beckett was treated by Dr. Michael Bergen with Avera University Psychiatry Associates on October 18, 2013. AR 776-83. Dr. Bergen's primary diagnosis of Beckett was borderline personality disorder, as well as general anxiety disorder, anxiety not otherwise specified, post-traumatic stress disorder (PTSD), depression not otherwise specified, and social phobia. AR 781. During a counseling session, Beckett described her inability to focus and her frequent anxiety about what other people say and think about her. AR 779. Dr. Bergen observed during the session that even while Beckett was speaking on one topic, her mind wandered to other topics. AR 780. Beckett also acknowledged having suicidal thoughts the previous May when she and her boyfriend broke up for a short time. AR 780. Beckett described how she will interpret looks from other people as being judgmental of her. AR 780. She also explained that her anxiety increased when around new people, when facing a long list of things to do, when in school, when around a lot of people, and when alone. AR 780. Her anxiety, she reported, caused physical symptoms such as vomiting, diarrhea, and numbness in her arms, legs, and face. AR 780. She described having panic attacks approximately three times a day, each of which could last up to six hours. AR 780-81. Beckett stated these severe episodes happen one or two times per week, but had been occurring three to four times a week at the beginning of the school year. AR 781. Beckett also experienced PTSD from her past sexual assault experience and other matters. AR 781.
At the time of the session, Beckett reported that she had been off her Fluoxetine for the previous two weeks, which she felt made her tired. AR 781-82. She also indicated that she missed approximately six to eight doses of her medication per month, and missed consecutive doses perhaps up to once per month. AR 781. Dr. Bergen placed Beckett on Wellbutrin XL
Beckett voluntarily admitted herself to Avera McKennan Hospital on February 17, 2014, through February 20, 2014, for protection from self-harm and deterioration of functioning. AR 800. While there, she was treated by Dr. Lindsey Knoll and Dr. Jay Weatherill.
On the day of discharge, Drs. Knoll and Weatherill held a family meeting with Beckett, her parents, her fiancé, and her grandmother. AR 802. Beckett was requesting discharge that day because it was her and her fiancé's anniversary, and the treating doctors conducted the meeting to establish healthy boundaries at home between Beckett and her family. AR 802. While Beckett was evaluated as a low to moderate risk to herself at the time of discharge, the treating doctors noted that her borderline personality disorder was leading to extreme impairment with poor boundaries, inability to function, severe identity disturbance, and poor self-direction with poor interpersonal skills. AR 802. According to the discharge report, Beckett's condition had been "chronic in nature and led to an inability to maintain a steady work of friendship and other social support." AR 802. The report concluded that while Beckett's condition was stable at the time of discharge, her prognosis was thought to be poor due to the chronic nature of her illness, lack of insight, and a tendency to externalize problems. AR 802.
Beckett's most recent treatment, for which records exist in the Administrative Record, took place with Dr. James Chiu, M.D. AR 920-51. Beckett first sought treatment with Dr. Chiu on August 7, 2014, with complaints of depression. AR 920. At the time, Beckett was upset that her boyfriend was in jail for physically abusing her and was upset she could not be with him. AR 920. She reported experiencing suicidal thoughts in the prior weeks, but denied she was having them at the time she met with Dr. Chiu. AR 920. Beckett reported not taking any medications for the past few weeks. AR 920. Dr. Chiu found Beckett's attention and concentration to be fair with her judgment and insight limited, and diagnosed her with borderline personality disorder and mood disorder not otherwise specified. AR 920-21. Dr. Chiu started Beckett on Sertraline
Beckett next saw Dr. Chiu on September 9, 2014, and reported she was doing better since her ex-boyfriend had been sentenced to five years in prison. AR 924. Beckett had discontinued the Topiramate and Sertraline after two weeks because they caused her to feel nauseous and tired. AR 924. Beckett also reported that she was getting along better with her parents and grandmother. AR 924. Dr. Chiu diagnosed Beckett with borderline personality disorder, ADHD combined type, and a mood disorder not otherwise specified. AR 924. Her attention, concentration, judgment, and insight were all rated as fair. AR 924. Dr. Chiu prescribed Vyvanse,
At Beckett's next appointment with Dr. Chiu on October 14, 2014, she reported having a new boyfriend and new best friend, was no longer using cannabis, had sold her paraphernalia, had a new full-time job at a grocery store (Tucker's Super Valu [sic], Inc.), and was seeing her psychotherapist weekly. AR 927. Dr. Chiu increased Beckett's Vyvanse dosage and assessed her with the same conditions as previously found. AR 928. Her attention, concentration, judgment, and insight all remained fair. AR 927.
On November 5, 2014,
By the time of her next visit with Dr. Chiu on February 3, 2015, Beckett had ended her previous relationship and had started seeing a new boyfriend two weeks prior, with whom she was already planning on getting married and having children. AR 933. This new boyfriend had moved into Beckett's home and was to work for her parents on the ranch, and she reported her parents approved of their relationship. AR 933. Beckett was continuing to work at the grocery store and enjoy it. AR 933. Dr. Chiu's diagnosis of Beckett remained borderline personality disorder, ADHD combined type, and mood disorder not otherwise specified, with her attention, concentration, judgment and insight rated as fair. AR 934. Dr. Chiu increased Beckett's Vyvanse dosage to 70 mg daily, and Beckett was to follow up in one month. AR 934.
During Beckett's next visit on May 5, 2015, she reported having broken up with her boyfriend because he was having an affair, beginning a new relationship with her incarcerated ex-boyfriend, and having lost her job due to her inability to handle the stress. AR 937. Beckett had stopped taking Vyvanse approximately two months prior as she was trying to get pregnant, but wished to restart that medication. AR 937. Dr. Chiu found Beckett's attention, concentration, judgment, and insight all to be fair. AR 937-38. Dr. Chiu's diagnosis remained the same and he restarted Beckett on Vyvanse at 30 mg daily. AR 938.
At Beckett's appointment on June 4, 2015, she reported considerable stress from relationships, including threats of harm from an ex-boyfriend. AR 941. Beckett had a part-time job, but had stopped seeing her therapist, hoping to find a new one. AR 941. Dr. Chiu's assessment of Beckett was borderline personality disorder, ADHD combined type, and depressive disorder, unspecified. AR 942. He increased her Vyvanse dosage to 50 mg daily. AR 942. He continued to find her attention, concentration, judgment, and insight to be fair. AR 941-42.
On June 30, 2015, Beckett reported having lost her job, continued harassment from an ex-boyfriend, and considerable financial stress. AR 945. Beckett said that she had begun seeing her psychotherapist again. AR 945. Dr. Chiu's diagnosis of Beckett's conditions remained unchanged from her previous visit. AR 946. Dr. Chiu started Beckett on Fluoxetine and continued her Vyvanse prescription at the same dosage. AR 946. Beckett's attention, concentration, judgment, and insight all remained fair. AR 945-46.
Beckett's last visit with Dr. Chiu for which treatment records exist in the Administrative Record took place on July 20, 2015. AR 948. Beckett reported considerable stress in her life, in part because her father reportedly had physically assaulted her when he learned she was dating one of his employees and was in jail at the time of her appointment. AR 948. Beckett was living in a shelter in Redfield, South Dakota. AR 948. She was depressed, but was to start a new job at the Subway restaurant in Redfield that week. AR 948. Beckett also stated that someone had stolen her Vyvanse. AR 948. Beckett's attention, concentration, judgment, and insight were all rated as fair. AR 948. Dr. Chiu assessed Beckett with the same conditions as previously reported and maintained her prescriptions of Vyvanse and Fluoxetine, as well as starting Trazodone.
Dr. Chiu had completed a mental RFC for Beckett on February 4, 2015. AR 892-97. He listed her conditions as a mood disorder not otherwise specified, ADHD, and borderline personality disorder. AR 892. He reported that Beckett has been prescribed Vyvanse, to which she responded well, and rated her prognosis as fair. AR 892. Question eight of the RFC requires the treatment provider to rate the patient's mental abilities and aptitude to do unskilled and skilled work, as well as particular types of jobs. There are five different ratings that may be given for the patient's abilities and aptitude limitations: 1) unlimited or very good; 2) limited but satisfactory; 3) seriously limited, but not precluded; 4) unable to meet competitive standards; and 5) no useful ability to function. Dr. Chiu rated Beckett's ability to remember work-like procedures as "limited but satisfactory," and for every other capability in the questionnaire his rating of Beckett was "seriously limited but not precluded." AR 894-95. Dr. Chiu estimated that Beckett's impairments would cause her to be absent from work approximately three days per month. AR 896.
The Administrative Record also contains Beckett's counseling records from Community Counseling Services in Huron, SD, which begins on February 2, 2012, and end on January 30, 2015. AR 703-48, 835-91. Beckett's primary counselor was Beth Kelsey, Ed.D., whom she saw for a majority of her time in counseling.
Beckett terminated therapy sometime in October of 2012, but returned on November 1, 2012, as it was required for her LEP. AR 730. She was depressed and angry, and had experienced "a major meltdown" the prior week when she and her boyfriend terminated their relationship, causing her to miss school and fall behind on her schoolwork. AR 730. She maintained good attendance over the next several months, but her condition was largely unchanged. Small improvements, such as a comment from her session on January 10, 2013, that she was handling her relationship with her parents better, AR 735, were countered with meltdowns in school and conflicts with students. AR 738-40. On February 28, 2013, Kelsey noted that Beckett was making very slow progress in improving her relationships and making specific plans for transitioning out of high school. AR 740. However, Kelsey also entered a change in diagnosis on February 28 on the basis that Beckett was improving. AR 741. The diagnosis indicated a depressive disorder not otherwise specified and a GAF score of 50.
Kelsey's next entry shows that Beckett called her in a panic on July 27, 2013, because she wanted to stay in Huron with her boyfriend but her parents wanted her to come home. AR 835-36. The next entry is on November 4, 2013, after Beckett was suspended from Mitchell Technical Institute for missing classes. AR 837. Kelsey attempted to help Beckett develop a plan for the next few months and described her mood as anxious and her judgment and frustration tolerance as poor. AR 837.
Beckett missed appointments on November 14 and 18, and next attended therapy on December 3, 2013. AR 838-39. This appears to be her first session with Elisa Lewis. Beckett described her history of contentious relations with her mother and her past as a sexual assault victim. AR 839-40. Beckett missed the next scheduled appointment on December 5, next attended on January 15, 2014, and was depressed at that time. AR 843. Beckett attended therapy the following week on January 22, but missed her appointment on January 29. AR 844-45. Over the next two months, Beckett missed two of six appointments. AR 845-49. On March 31, 2014, Lewis noted that Beckett appeared to be "moving backward" rather than making progress toward her goals. AR 850. On August 4, Beckett reported being in her "best mood ever" because she had renewed an old physical relationship, although with a 15-year-old child. AR 870. Her counselor, who at this time was Elisa Lewis, contemplated calling Child Protective Services due to the age difference. AR 870.
From April through August, Beckett's attendance at therapy was more sporadic, with several missed appointments and some gaps of up to a month in between sessions. Beckett was anxious and struggled to stay engaged during sessions. AR 853-60. Beckett had some sessions where improvement was noted, such as on June 16 where she agreed to turn off her phone during session to stay more focused, and on July 28 where her counselor noted she was displaying some ability to keep calm in stressful situations. AR 860, 869.
On September 24, 2014, Beckett began counseling with Angela Carruthers. AR 871. She attended regularly through October, November, and December.
The Administrative Record also contains several records that were submitted as part of Beckett's disability claim from non-medical sources.
Beckett was found eligible for Vocational Rehabilitation Services on June 25, 2012. AR 306-07. Beckett was deemed, at the time, to have significant limitations related to job-related interpersonal skills, problems with reasoning, processing and cognition regarding life decisions, and was significantly limited by a lack of insight. AR 307. The Administrative Record contains many pages of case notes from the Vocational Rehabilitation counselor, Carmen Thies, who worked with Beckett. AR 435-560. Many of these notes document Beckett's struggles with school, relationships, and jobs. AR 498-560. Notes from Thies record that Beckett began working part time at Alco in Miller but that she soon began struggling to balance the demands of work and school and requested to reduce her work at Alco to Monday and Wednesday evenings. AR 559. Thies entered a summary case note on December 20, 2012, about a worksite visit where Beckett's supervisors said that Beckett was doing fine, but apparently struggling with classes. AR 555. Thies received an email on December 20 that Beckett was often making excuses as to why she either could not work or would be late to Alco. AR 554. Beckett apparently only wanted to work the cash register, but her supervisors did not find her sufficiently dependable to do so. AR 554.
A note from March 6, 2013, documented that Beckett "occasionally need[s] a job coach to assist her to complete her tasks." AR 542. Beckett also apparently resisted any job coaching. AR 540. An email from April 4, 2013, indicated Beckett was close to failing English, frustrated with Miller High School, calling in sick to Alco often, and getting little work done after the manager leaves for the night. AR 540. Beckett apparently quit Alco without giving notice because she was behind on her schoolwork, according to Thies' emails on April 30, 2013. AR 538.
Thies met with Beckett on May 20, 2013, shortly after Beckett graduated from high school. At that time, Beckett was preparing to start school at Mitchell Technical Institute, living with a boyfriend of three months in Miller, and reported she had gotten pregnant with her last boyfriend but that the relationship ended because he was abusive. AR 533.
On November 19, 2013, Beckett explained to Thies that she had left Mitchell Technical Institute because she felt isolated and did not know anybody. AR 516. The stress caused by this isolation reportedly made her physically ill, preventing her from attending classes, or having to run to the bathroom if she attempted to attend. AR 516. Beckett said that her parents were requiring her to get a job or they would kick her out, and that she had applied to several jobs in Miller. AR 516. Beckett missed a counseling appointment with Thies on December 3, 2013, and her next contact was by phone on January 13, 2014. Beckett complained that her mother was "butting in" to her life, and Beckett discussed wanting to work full time and find an online education program in lieu of Mitchell Technical Institute. AR 513. Beckett then missed an appointment with Thies on January 22, 2014. AR 506.
Beckett again met with Thies on April 1, 2014. During that appointment, Beckett described being frustrated with her mother and needing a job. AR 501. Beckett believed that much of the stress in her life would be alleviated if she had a job and that working at a place familiar to her would resolve her issues with anxiety. AR 501. Beckett and Thies made plans to contact the manager at Runnings in Huron, South Dakota, and inquire about possible employment. AR 501. When Thies contacted Beckett on April 8, Beckett said that Runnings was not hiring and that she did not wish to set up an appointment with Thies. AR 500. Thies asked Beckett if she would like her to close Beckett's file if she was not interested in receiving Vocational Rehabilitation counseling, and they agreed to follow up in a week or two. AR 500. On June 9, 2014, Beckett told Thies she was once again living on her parents' ranch and working for them. AR 498. Beckett was not looking for other employment at that time; Thies and Beckett agreed to close her file. AR 498.
Thies submitted a statement of work-related limitations on September 9, 2014. AR 429-34. Thies described Beckett's impairments as mood instability, negative self-attitude, inability to complete things in a timely manner, and difficulties getting along with others. AR 429. She also noted the fact that Beckett had two to three fiancés in the prior two years and was often "at discord" with her parents. AR 429. Describing Beckett's mental aptitudes and abilities, Thies stated that although Beckett was able to do work tasks, her life outside of work interferes. AR 431. She noted that Beckett might go on break and not return, come to work late, or call in at the last minute and not show up at all. AR 431. Thies rated Beckett as capable of low stress jobs, but added a note stating "except the stress from her life outside of work will end up interfering with her work." AR 433. Thies explained that Beckett is always dealing with some perceived emergency, predicament, or crisis in her life that will take priority over work, and, the emotions and anxiety connected to these events will negatively impact her work. AR 433. Thies predicted Beckett's stresses from outside work would negatively impact her work at least once per week. AR 433. Thies believed that Beckett would not be capable of performing low-level, nonexertional unskilled jobs because her emotions and anxiety would make Beckett "unable to hold employment for long periods of time." AR 434.
Beckett submitted a function report, which was completed by her mother Tember, to the Commissioner dated May 20, 2013. AR 352-59. Beckett claimed that her parents had to remind her to shower and to take her pills at times, though she shopped for groceries and drove herself AR 354-55. She reported following instructions better when they were written down. AR 357. In response to how she handles stress and changes in routine, Beckett responded "not well." AR 358. Beckett stated that she was on Lexapro, Geodon,
Beckett's 12th grade English teacher, Lisa Anson, submitted a teacher questionnaire to the Commissioner dated May 21, 2013. AR 360-70. Anson had Beckett approximately one hour a day, five days a week, and reported that Beckett was often tardy and had missed "more than she should have" during her second semester. AR 363. Anson indicated that Beckett was always willing at the beginning of a project, but that her desire to do well and follow instructions wanes. AR 364. Anson noted that Beckett had daily problems attending and completing tasks, and that she would focus on minimal problems until they became major problems. AR 365. In the section on interacting and relating with others, Anson characterized Beckett having either "a serious problem" or "a very serious problem" for several categories, such as making and keeping friends, seeking attention appropriately, and expressing anger appropriately. AR 366. Anson noted that many of Beckett's problems relate to "appropriateness" and that Beckett does not believe the rules apply to her when she feels she wants or needs something. AR 368. Anson commented that while Beckett had great ability and intelligence, it would be "almost impossible for her to attend college or hold down a job" because of her personal actions. AR 370.
The Administrative Record also contains a report from the Miller School District which contains Beckett's IEP, test scores, and transcript. AR 371-97. The report assessed Beckett as able to function at an average intellectual level, but noted that she struggled with emotional regulation, leading to conflicts with students and teachers. AR 373. The report further noted that Beckett's attendance and follow through on assignments was poor. AR 373. Under Beckett's IEP, she was allowed extended time for assignment and test completion, and was allowed to leave the classroom with teacher permission to go to a safe, quiet environment as needed. AR 388.
Prior to the Commissioner's original denial of Beckett's disability claim, the Commissioner had a mental RFC conducted by Stephanie Fuller, Ph.D., a state agency psychological consultant, which Fuller submitted on August 29, 2013. AR 97-110. Fuller reviewed the records from Dr. Dame, the Miller School District report, the teacher questionnaire from Lisa Anson, the records from Community Counseling Services up to April of 2013, records from the Highmore clinic, and certain information supplied by Beckett. AR 101-02. Fuller evaluated Beckett under child disability rules for the period before she turned 18, and under adult rules for the period after she attained the age of 18. AR 102. Under the rules for children, Fuller determined Beckett's personality disorder was severe, and her anxiety disorder, affective disorders, and ADHD were non-severe. AR 102. The findings were the same under the adult disability rules. AR 104. In rating Beckett's sustained concentration and persistence limitations, Fuller noted that Beckett was "moderately limited" in both her ability to maintain attention and concentration for extended periods of time and her ability to work in coordination with and in proximity to others without being distracted by them. AR 106. Fuller assigned a "not significantly limited" rating to all other concentration and persistence capabilities in the questionnaire. AR 106. Fuller described Beckett as having "some difficulty with distractibility at times" and opined that little to no contact with others would improve this situation. Fuller determined Beckett had the basic ability to attend and concentrate for at least two-hour segments throughout a typical workday, and that Beckett could understand, remember, and carry out detailed instructions if motivated to do so. AR 106. Fuller rated three of Beckett's social interaction limitations as "moderately limited," and commented that she would need reduced contact with others. AR 107. Fuller opined that Beckett would require a routine work situation that called for minimum feedback from supervisors. AR 107. Fuller's evaluation determined that Beckett was not disabled. AR 108.
The Commissioner had another mental RFC done by Cheryl Buchkoski, Ph.D., and Jerry Buchkoski, Ph.D., both state agency psychological consultants.
Beckett was again found to have a severe impairment under child and adult rules for her personality disorder, while her anxiety disorder, affective disorders, and ADHD were found to be non-severe. AR 120, 122. Cheryl Buchkoski determined that Beckett's impairments functionally equaled a listing under the child disability guidelines to result in a disability. AR 121. Beckett was determined to have marked deficits in attending and completing tasks and interacting and relating with others. AR 121-22. Jerry Buchkoski's mental RFC
Prior to Beckett's administrative hearing, Bruce Tucker, Beckett's former employer at Tucker's Super Valu [sic], Inc., submitted a job performance questionnaire to the Commissioner dated February 17, 2015. AR 291-93. Beckett's employment spanned from September 20, 2014, to February 9, 2015, and Tucker noted that Beckett's performance deteriorated substantially after Beckett's grandmother, Charlene Beckett, retired from the grocery store on January 1, 2015. AR 291. Tucker described Beckett's attendance record as fair and noted she would occasionally fail to complete shifts because of personal or relationship issues she felt she needed to take care of, and that she called in sick frequently. AR 291. He further noted that Beckett spent a substantial amount of time in the bathroom due to purported illness, and this happened at least once a day and sometimes more. AR 291. Tucker explained that Beckett required daily reminders to stay on task, could not maintain an ordinary work routine without supervision, and would frequently fail to return to her workstation when expected. AR 292. Beckett could operate the cash register well, but had problems with customer service if she was agitated or distracted. AR 292. As for instructions, Tucker described that Beckett was able to understand and perform them well, but would often choose not to do so. AR 292. Beckett would become hostile with supervisors and use inappropriate language when she did not want to do something, and struggled to maintain cordial relationships with coworkers. AR 292. Tucker also noted that any changes in Beckett's routine on or off the job caused her to become stressed and aggravated, and her behavior created a poor work environment for her coworkers. AR 293. Beckett also refused to limit the use of her personal cell phone during work hours. AR 293. Tucker described Beckett's performance as "exemplary at times," but noted that her "issues" made continued employment impossible. AR 293.
Beckett submitted information on her recent medical treatment, work history, and medications. AR 561-65. Beckett's medical treatment form indicates that she has been diagnosed with severe depression, ADHD, severe mood changes, and migraines, and that she required medication and counseling. AR 561. Beckett lists her job at Tucker's Super Valu [sic], Inc., and a month as a waitress at Family Way Restaurant in Miller on her work history. AR 562.
The ALJ conducted an evidentiary hearing on March 24,2015. AR 65. Beckett appeared with her attorney and her mother. AR 65.
Beckett testified that she was currently training at Cenex for a cashier position, and that she had been training for two weeks for what is normally taught in two days. AR 67-68. As far as working on her parents' ranch, Beckett testified that she goes outside and rides the tractor with her father because her parents do not like her in the house all day. AR 70-71. She has no set hours or responsibilities on the ranch. AR 71. She testified that she becomes nervous and shuts down, and this is the main thing preventing her from working. AR 71.
Beckett testified that she began seeing Dr. Chiu after her mother discovered she was talking to the Suicide Hotline. AR 72. Vyvanse was the only medication she felt helped, and the others that Dr. Chiu prescribed made her sick or sleepy. AR 72. Beckett testified that while she takes care of her own personal needs, she does so poorly and usually takes someone grocery shopping with her to help make sure she buys appropriate food. AR 73-74. She also testified that her parents take care of her rent and bills and give her gas for her car. AR 74. Beckett stated that she lives in the extra house on her parents' ranch, and they often have to tell her to clean it. AR 78-79. She testified that she will leave, her dog's feces in the house for days before she picks it up. AR 79.
Beckett testified that she hoped one day to have a ranch where she breeds and grooms dogs because dogs do not judge her. AR 75. She also testified about her time as an employee at Tucker's Super Valu [sic], Inc., describing how she would. have anxiety attacks that sent her to the bathroom for 15 to 20 minutes at a time, and how these were brought on by her perceptions of people judging her or being cranky. AR 76. Beckett also testified that she had become so nervous at Cenex the day before the hearing that she had thrown up in the bathroom and been sent home by her supervisor. AR 78. She also testified that she typically calls her mother every day she is at work, which helps her to calm down. AR 78.
Beckett also testified about leaving Mitchell Technical Institute after two months because of her anxiety. AR 81. She described how her anxiety attacks cause her to feel like she is suffocating, occur daily, and can even happen when she is at home alone thinking about all of the things going on in her life. AR 81. Beckett testified that she will often avoid leaving the house because of her anxiety. AR 82. Beckett also testified that if she were given a list of ten tasks, she would likely only be able to complete one or two, and then her body and brain would shut down. AR 82.
Beckett's mother Tember also testified at the hearing. AR 85. Tember testified to Beckett's bipolar diagnosis from 2006, and explained that Beckett's behavioral problems had existed since she was in kindergarten. AR 85. Tember testified that Beckett cannot perform multiple tasks, but must instead be given one thing to do at a time. AR 86. She also testified that Beckett cannot perform a routine task, such as feeding the animals on the ranch on a daily basis, without constant supervision. AR 86. Tember related how she has to constantly remind Beckett to do things, such as attend the present hearing, and that she had to call or text Beckett daily to remind her to go to her job at Tucker's Super Valu [sic], Inc. AR 87-88.
Steven Bosch testified as a vocational expert at the hearing. AR 90. When asked hypothetical questions about limitations described in the mental RFC as determined by the ALJ, Bosch testified that such a person could perform hand packaging activities, bench assembly tasks, and be employed in molding machine tenders. AR 92. When asked a final question by Beckett's counsel as to whether an individual who required constant monitoring to stay on task could hold those jobs, Bosch testified that this would be sheltered employment, and not competitive employment. AR 93.
The ALJ issued a decision denying Beckett's application for SSI benefits. AR 37-57. In doing so, the All used the sequential five-step evaluation process in 20 C.F.R. §§ 404.1520(a) and 416.920(a). Under the "`familiar five-step process' to determine whether an individual is disabled, . . . [t]he ALJ `consider[s] whether: (1) the claimant was employed; (2) she was severely impaired; (3) her impairment was, or was comparable to, a listed impairment; (4) she could perform past relevant work; and if not, (5) whether she could perform any other kind of work.'"
At the first step, the ALJ determined that Beckett had engaged in no substantial gainful activity since March 29, 2013; Beckett attained the age of 18 on March 30, 2013. AR 39. The ALJ reviewed Beckett's prior part-time employment and found it fell below the wage threshold for substantial gainful activity.
At step two, the ALJ concluded that Beckett's severe impairments included panic disorder with agoraphobia,
At step three, the ALJ determined that Beckett's severe impairments do not singly or in combination meet any of the listed impairments. AR 41. The ALJ then determined that Beckett had the residual functional capacity to perform work at all exertional levels with certain nonexertional limitations to include short and simple instructions, limited contact with coworkers, and no contact with the general public. AR 43. The ALJ found that Beckett's impairments could reasonably be expected to cause her symptoms, but that Beckett's statements regarding the intensity, persistence, and limiting effects of those symptoms were not entirely credible. AR 44. The ALJ discussed Beckett's medical records and concluded that the treatment records were largely unremarkable and not supportive of a level of psychological dysfunction to preclude work activities. AR 44-45. The ALJ discussed the treatment notes from Beth Kelsey and determined that Kelsey's GAF score of 50 was entitled to little weight because it considered Beckett's family conflict and was made prior to Beckett turning 18. AR 45. In addition, Beckett's sporadic attendance at therapy was deemed to be one of several factors not supportive of Beckett's disability allegation. AR 45. In general, the ALJ found that notes from Community Counseling Services all supported the non-exertional limitations of the RFC. AR 45,49,51,52.
The ALJ discussed Beckett's school records and testimony, finding that her activities of daily living were largely consistent with the ALJ's RFC determination. AR 46-47. Dr. Dame's medical statement was given great weight and found to be consistent with the RFC determined by the ALJ. AR 49. The ALJ discussed the records from Vocational Rehabilitation Services and determined that Beckett's poor attendance at counseling sessions and attempts to find full-time work were not consistent with her contemporaneous disability claim. AR 49-50. Records from Beckett's hospitalization under the care of Dr. Knoll were reviewed, but given little weight because Beckett had been using marijuana and had stopped taking her medications prior to her hospitalization. AR 50. Regarding the statement from Beckett's former employer Bruce Tucker, the ALJ noted that Beckett's job there exceeded the limitations of the RFC. AR 51-52. The ALJ discussed Dr. Chiu's mental RFC questionnaire, but gave it little weight because of a lack of supporting treatment notes (which were placed in the Administrative Record after the ALJ's decision). AR 53. The ALJ also gave little weight to the statement from vocational counselor Carmen Thies as she was not an acceptable medical provider and her interactions with Beckett took place in 2012 and early 2013. AR 54. Tember Beckett's testimony was given some weight, but limited because she was not a medical expert and "has no technical training in Social Security Rules and Regulations." AR 54. The ALJ gave no weight to Lisa Anson's teacher questionnaire because it addressed Beckett's functional capacity under childhood disability rules, but also stated that the questionnaire indicated Beckett's most significant issues related to appropriate social interactions, which was supported elsewhere in the record. AR 55.
At step four, the ALJ found that Beckett had no relevant past work experience. AR 55. Finally, the ALJ determined that a significant number of jobs existed in the economy that Beckett could perform based on her age, education, work experience and RFC. AR 56.
When considering whether the Commissioner properly denied social security benefits, a court must "determine whether the decision is based on legal error, and whether the findings of fact are supported by substantial evidence in the record as a whole."
The Commissioner's decision must be supported by substantial evidence in the record as a whole.
A reviewing court must `consider evidence that supports the [Commissioner's] decision along with evidence that detracts from it."
A district court also reviews the Commissioner's decision to determine if appropriate legal standards were applied.
When Beckett sought review by the Appeals Council, she submitted new evidence. AR 6, 920-51. The Appeals Council stated that it "considered the reasons you disagree with the decision and the additional evidence listed on the enclosed Order of Appeals Council[,]" but that it "found that this information does not provide a basis for changing the [ALJ's] decision." AR 2. The Order of Appeals Council listed and made two exhibits part of the record: treatment notes from Dr. James Chiu and a brief filed by Beckett's counsel. AR 6. When, as here, the Appeals Council considers new evidence but denies review, a district court "must determine whether the ALJ's decision was supported by substantial evidence on the record as a whole, including new evidence."
Beckett argues that the ALJ's decision is not supported by substantial evidence on the record as a whole and is not free from legal error. Beckett raises two issues on appeal:
Doc. 18 at 7. The Court addresses each of these arguments.
Beckett argues that the ALJ committed legal error by giving Dr. Chiu's statement little weight for lack of treatment notes. Doc. 18 at 17-18. In discussing the mental RFC questionnaire of Dr. Chiu, the ALJ stated:
AR 53 (citations omitted). The Commissioner now argues that the ALJ properly considered Dr. Chiu's RFC questionnaire because his ratings of "seriously limited but not precluded" as to Beckett's mental aptitude and abilities are consistent with the ALJ's RFC determination. Doc. 19 at 12. The Commissioner also contends that Dr. Chiu's assessment that Beckett would miss an average of three days of work per month is undermined by his "mild to moderate mental status examination findings." Doc. 19 at 13. Of course, the Commissioner's argument that the All considered Dr. Chiu's RFC questionnaire conflicts with the ALJ's written opinion that she gave it "little weight" because of the absence of treatment notes in the record.
"[S]ocial security hearings are non-adversarial. . . . [T]he ALJ bears a responsibility to develop the record fairly and fully, independent of the claimant's burden to press his case."
In this case, the ALJ discounted the opinion of a treating psychiatrist because of "the lack of any supporting or explanatory treatment notes." AR 53. The ALJ should have known they existed and should have taken steps to obtain them. The ALJ knew that Dr. Chiu had provided treatment to Beckett starting in August 2014, AR 53, and Beckett testified during the evidentiary hearing that she sees Dr. Chiu "depending on what's going on in my life." AR 72. Instead of obtaining Dr. Chiu's records, the ALJrelied on the absence of records to justify giving treating psychiatrist Chiu's opinions "little weight." AR 53. The Administrative Record now contains treatment notes documenting nine visits Beckett had with Dr. Chiu between August of 2014 and July of 2015.
At the same time the ALJ gave Dr. Chiu's mental RFC little weight, she gave the assessments of the state agency psychological consultants "weight," though this Court notes that based upon the similarity of the ALJ's RFC determination and these assessments, the ALJ clearly gave significant weight to the consultants' opinions. In accepting and giving these assessments "weight," the ALJ wrote "[t]he record here supports that the claimant's mental impairments have resulted in a mild restriction in activities of daily living, moderate limitations in social functioning, and moderate limitations in concentration, persistence or pace." AR 53. Dr. Fuller and Jerry Buchkoski's assessments were identical to each other, and often contrast directly with Dr. Chiu's assessment of Beckett's abilities and aptitudes. For instance, while Dr. Chiu rates Beckett's ability to carry out short, simple instructions as "seriously limited but not precluded," the state agency consultants determined Beckett was "not significantly limited" in this particular aptitude. AR 894, 106, 124. The RFC questionnaire completed by Dr. Chiu defines the category of "seriously limited but not precluded" as "a substantial loss of ability to perform the work-related activity." AR 894. Dr. Chiu rated each of Beckett's mental aptitudes and abilities as "substantially limited but not precluded" with the exception of her ability to remember work-like procedures, which he rated as "limited but satisfactory." In contrast, the non-examining psychologists rated each of Beckett's sustained concentration and persistence limitations and her social interaction limitations as either "not significantly limited" or "moderately limited." AR 894, 106-07, 124-25, 141-42. Importantly, the non-examining psychologists, whose assessments were based on review of records, did not have the benefit of reviewing Dr. Chin's treatment, notes or mental RFC questionnaire when they made their assessments.
When, as here, the ALJ fails to adequately develop the record, the question becomes whether claimant Beckett was prejudiced.
Because the state agency psychological consultants rated all of Beckett's sustained concentration and persistence limitations and her social interaction limitations as either "not significantly limited" or "moderately limited" whereas Dr. Chiu rated all but one of Beckett's mental aptitudes and abilities as "seriously limited but not precluded," the ALJ was faced with a treating psychiatrist's opinions that undermined the state agency consultants' assessments. The contrasting opinions between Dr. Chiu and the non-examining psychologists as to the severity of Beckett's limitations made the ALJ "aware of [a] critical issue" that required the ALJ to take steps "to develop the record sufficiently to determine whether [Dr. Chiu's] medical evidence deserved controlling weight."
The ALJ's failure to develop the record on this issue "strain[s] [this Court's] confidence in the `reliability of the RFC upon which the ALJ based [her] decision.'"
Beckett also argues that the ALJ impermissibly discounted the medical opinion of Dr: Knoll as to Beckett's prognosis. Doc. 18 at 14-15. The ALJ granted this evidence "little weight" as it came "just after the claimant had stopped daily use of marijuana and at a time when she had been off her mental health medications for some time." AR 50. Beckett argues that Dr. Knoll, as well as Dr. Weatherill, conducted a thorough history and physical and based their opinion on a comprehensive understanding of Beckett's situation, and not on Beckett "not smoking marijuana for one week and not taking medication for one week." Doc. 18 at 15. As an initial matter, the record shows that when Beckett voluntarily admitted herself to Avera-McKennan, she had stopped taking her Lexapro the prior September and began taking Adderall at that time. AR 806. She had ceased taking Adderall and Lorazepam the week prior to her hospitalization. AR 806. As a matter of law, an ALJ need not give controlling weight to the opinions of medical treatment providers who do not have the opportunity to assess a claimant when they were following a prescribed treatment plan, such as taking medications and staying sober.
While Beckett argues that the ALJ treated all the opinions in the record incorrectly, the only other evidence which the ALJ granted no weight was the teacher questionnaire from Lisa Anson. AR 55. Under Social Security Regulation 06-3p (SSR 06-3p), information from sources such as a teacher questionnaire "cannot establish the existence of a medically determinable impairment," but "may provide insight into the severity of the impairment(s) and how it affects the individual's ability to function."
The ALJ granted no weight to Anson's questionnaire responses because it evaluated Beckett under childhood disability rules. AR 55. The ALJ further noted that Anson's responses suggested that Beckett's most significant issue related to appropriate social interactions, which was reported elsewhere in the record. AR 55. While the questionnaire did ask Anson to evaluate Beckett under the childhood disability rules, Anson provides ample narrative answers which "may provide insight into the severity of [Beckett's] impairment(s)" for the ALJ to consider.
However, the ALJ's rationale for giving little weight to the statement of work-related limitations from Carmen Thies appears to be flawed. The ALJ gave little weight to the statement as Thies is not an acceptable medical provider and her interactions with Beckett took place in 2012 and early 2013. AR 54. The record shows this latter reason to be inaccurate. Beckett's 18th birthday was March 30, 2013, and Thies did not close Beckett's file with Vocational Rehabilitation until June of 2014.
Beckett argues at length that the ALJ failed to consider all the remaining evidence in the record, but the ALJ's opinion does consider these sources and discusses each of them. Beckett responds that she "is not arguing the ALJ did not discuss the evidence as the Commissioner continually suggests." Doc. 20 at 2 (italics in original). Beckett instead argues that despite the Commissioner's claim that the ALJ considered the evidence, it is impossible for her to have drawn the conclusions she did, and thus could not have truly considered that evidence. But this argument must fail. When an ALJ, as here, has stated that she considered the evidence, and indeed has discussed that evidence in her decision, a reviewing court cannot assume otherwise.
Closely related to Beckett's argument that the ALJ failed to consider relevant opinions, Beckett also argues that the ALJ's mental RFC determination is not supported by substantial evidence on the record. Doc. 18 at 7. Because this Court has already determined that the ALJ committed reversible error in failing to develop the record as to Dr. Chiu's opinion, and that this failure undermines this Court's confidence in the RFC upon which the ALJ based her decision, this Court need not reach Beckett's argument. On remand, the ALJ will have an opportunity to reevaluate Beckett's RFC based on appropriately weighted evidence.
Finally, Beckett argues that the Vocational Expert's answers to the ALJ's hypothetical questions cannot constitute substantial evidence on the record because the hypothetical questions were based on a flawed RFC determination. Doc. 18 at 38-39. This Court need not address this argument for the same reasons explained above. On remand, the ALJ should reevaluate the RFC determination depending on what additional evidence exists.
Beckett requests reversal and remand of the Commissioner's decision with instructions to award benefits, or in the alternative reversal and remand with instructions to further consider her case. Doc. 18 at 39-40. Title 42 U.S.C. § 405(g) governs judicial review of final decisions made by the Commissioner.
For the reasons explained above, it is hereby
ORDERED that the decision of the Commissioner is reversed and this action is remanded to the Social Security Administration for the purpose of reevaluation, consistent with this Opinion and Order.