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Duncan v. Colvin

United States District Court, W.D. Missouri, Western Division

August 4, 2014

DARLA M. DUNCAN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


NANETTE K. LAUGHREY, District Judge.

Plaintiff Darla Duncan seeks review of the Administrative Law Judge's decision denying her application Supplemental Security Income benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq. [Doc. 7]. Duncan's alleged disability onset date is January 13, 2011. For the following reasons, the decision of the Administrative Law Judge (ALJ) is REVERSED, and the case is remanded for the purpose of awarding benefits to Duncan.

I. Background

Duncan, forty-four years old at the time of her application date, has a seventh grade education which was accomplished through participation in special education classes. Duncan has a long history of mental illness which has been variously diagnosed as bipolar disorder, depression, anxiety, borderline personality disorder, and posttraumatic stress disorder. She has experienced some or all of these illnesses since childhood and has been on medication since 1996. [TR-924]. The illnesses manifest through extreme mood swings, violent behavior toward herself and property, hypersensitivity, paranoia, hallucinations, and suicidal thoughts. See e.g., [TR-434, 662, 672, 923]. Duncan also has a history of fibromyalgia.

In the summer and fall of 2010, she reported living intermittently in a public park, [TR-440], and a homeless shelter, [TR-437], before securing transitional housing. Beginning in May 2011, Duncan received assistance from a community social service (CSS) worker. The CSS worker visited or called Duncan on average every 3-5 days with frequent visits and calls every day or every other day. [TR-601-702, 738-89, 887-921]. During these visits, which typically lasted between thirty minutes and almost three hours, the CSS taught Duncan coping skills, helped her access housing, medication, and food resources, helped fill out paperwork, coordinated medical appointments, discussed medication scheduling, assisted with meal planning and shopping, encouraged her to leave her home, and discussed how to interact appropriately with others. Common objectives included emotional processing, learning and processing coping skills and social skills, and learning and utilizing sleep and hygiene practices. Duncan also received assistance from a home health worker who cooked and portioned meals for her, helped her clean her house, and took her to medical appointments. See e.g., [TR-689, 899].

Medical reports beginning around April 2010 reveal that Duncan frequently experienced anxiety, depression, racing thoughts, crying spells, and violent outbursts. She reported feelings of paranoia associated with her belief that her daughter's father stalked her. [TR-428, 599, 736]. She also reported frequent hallucinations involving ghosts and voices. [TR-652, 599, 751, 782, 818]. She reported both loss of sleep and fatigue related to pain from fibromyalgia and from her racing thoughts. [TR-434, 599, 782]. Duncan was often compliant with her medication regimen, [TR-434, 652-3, 661, 735-36, 781-82], but sometimes forgot to take her medication, [TR-741]. She also experienced side effects such as hair loss, [TR-652], shaking, and imbalance, [TR-672]. Duncan was assessed with Global Assessment Functioning (GAF) scores in the 30s and 40s, [TR-398, 703-5, 886], frequently received a score of 50, [TR-440, 443, 446], and on two occasions received a score of 55-60, [TR-429, 435].

Beginning in April 2010, Duncan sought regular mental health treatment. In December 2010, her case was supervised by Dr. Umonoibalo Ehimare, M.D. In August 2012, after treating Duncan at least twelve times, Dr. Ehimare evaluated Duncan through a "Mental Residual Functional Capacity Assessment" and a "Mental Impairment Evaluation." [TR-922-28]. Dr. Ehimare opined that Duncan was moderately to mildly limited in her ability to understand and remember instructions and work-like procedures, moderately to extremely limited in her ability to maintain sustained concentration and pace, slightly to extremely limited in her ability to interact with coworkers, the public, and supervisors, and markedly to extremely limited in her ability to adapt to unfamiliar places or settings. [TR-922-23]. Dr. Ehimare stated that Duncan's "symptoms are characterized by episodes of extreme mood swings, affective instability, and psychotic symptoms." [TR-923]. Dr. Ehimare also stated that her functional capacity is severely limited by extreme mood instability and she has a tendency to decompensate even under minimally stressful situations. Id. It was anticipated that Duncan would be absent from work more than three days per month. Dr. Ehimare also opined that Duncan met both Listing 12.04 and 12.06 as described in 20 C.F.R. Part 404, Subpart P, Appendix 1. Under the "B" Criteria, Dr. Ehimare stated that Duncan had moderate restrictions on activities of dialing living, but extreme restrictions in social functioning and maintaining concentration, persistence, and pace. She also had extreme repeated episodes of decompensation. [TR-925]. Dr. Ehimare also concluded that Duncan met the medical symptom requirements of both Listings 12.04(A) and 12.06(A). [TR-926-27].

Dr. Margaret Sullivan, Ph.D, a non-examining state agency consultant, filled out a "Psychiatric Review Technique" form and a "Residual Functional Capacity Assessment" in April 2011. [TR-548-61]. Based on a review of Duncan's records up to that point, Dr. Sullivan opined that Duncan had mild to moderate functional limitations and one or two repeated episodes of decompensation. [TR-556]. Dr. Sullivan remarked that Duncan responded positively to medication intervention and case services, continued to indicate irritability and mood problems, needed to be reminded to take medications when she was depressed, could follow some simple directions and do some household chores. [TR-558]. Based on this assessment, Dr. Sullivan opined that Duncan "appear[ed]" capable of unskilled tasks in an environment that is socially limiting. Id. Dr. Sullivan stated that Duncan was at most only moderately limited in understanding and memory, sustaining concentration and pace, social interaction, and adaptation. [TR-559-60].

CSS workers who worked with Duncan also submitted statements on Duncan's behalf. These statements indicated that Duncan experienced a lot of pain from fibromyalgia, received services through an independent living company and personal care attendant, struggled with remembering tasks and chores, and feared change. See e.g., [TR-122-23].

After a hearing, the ALJ issued an unfavorable decision, finding that Duncan could perform jobs that exist in significant numbers in the national economy. [TR-21-22]. Duncan had the residual functioning capacity (RFC) to perform light work except she is limited to simple unskilled work involving only limited contact with her coworkers and supervisors, and no contact with the general public. [TR-17].

To reach the RFC determination, the ALJ gave the non-examining state agency consultant's opinion "moderate weight." [TR-20]. Dr. Ehimare's evaluation was given "little weight." Id. The CSS workers' statements were given "little weight" because they contradicted the medical record, Duncan's documented actions, and treatment notes and because neither CSS worker was an acceptable medical source. [TR-19-20]. The ALJ also remarked that Duncan refused individualized therapy, was not compliant with her medication, had a poor work history, and had relationships with men. [TR-19].

II. Discussion

Duncan argues the ALJ did not properly consider Listing 12.04 and 12.06 and erred by giving little weight to Dr. Ehimare's opinions with regard to the Listings. The Court agrees. When determining whether a claimant is disabled, the ALJ must employ a five step process. Hepp v. Astrue, 511 F.3d 798, 803 n.4 (8th Cir. 2008); 20 C.F.R. § 416.920. At step three, the ALJ must determine whether the impairment is, or is comparable to, a listed impairment found in 20 C.F.R. Part 404, Subpart P, Appendix 1. Listing 12.04 describes affective disorders and Listing 12.06 describes anxiety disorders. To meet Listing 12.04, requirements in 12.04(A) and (B) must be met or 12.04(C) must be met. To meet listing 12.06, requirements in 12.06(A) and (B) must be met or 12.06(A) and (C) must be met.

As to 12.04(A) and 12.06(A), the ALJ did not provide an assessment. However, the ALJ determined that Duncan did not meet the requirements in 12.04(B) and 12.06(B). The "B" Criteria in both Listings 12.04 and 12.06 require a finding of at least two of the following: 1) marked restriction of activities of daily living; 2) marked difficulties in maintaining social functioning; 3) marked difficulties in maintaining concentration, persistence, or pace; or 4) repeated episodes of decompensation, each of extended duration. The ALJ determined Duncan had mild restrictions in activities of daily living and moderate ...

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