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Thomas v. Colvin

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

November 5, 2014

JANET THOMAS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendants.


NANETTE K. LAUGHREY, District Judge.

Plaintiff Janet Thomas appeals the Commissioner of Social Security's decision finding that she is not entitled to supplemental security income (SSI) under Title XVI of the Social Security Act. The matter is remanded for further proceedings.

I. Background

Thomas was born in 1960 and has had no reported earnings since 1988. She has applied for and been denied SSI benefits before. In this case, she claims disability beginning September 21, 2006, due to mental disorders, back pain, numbness in the hands, seizures, and migraine headaches. Two hearings were held in connection with Thomas' current claim, one in June 2009 and, after remand by the Appeals Council[1], another in July 2012. On appeal to this Court, Thomas challenges the portion of the decision rendered September 21, 2012 finding her mental limitations not disabling.

Thomas has had two psychological evaluations by Robert Whitten, Ph.D. In May 2000, on referral from Disability Determination Services, Thomas reported a limited ability to stand and walk and lift; depressive apathy making it a struggle for her to get up and do anything; and daily panic attacks. Dr. Whitten noted Thomas' hospitalization the prior year, resulting from depression, and that she had stopped treatment and was not taking medication. Dr. Whitten observed that Thomas exhibited a dreary appearance with a pale skin tone and red eyes; she did not appear to have regularly bathed; and was "clearly slowed by depression." [Tr. 215]. On the Wechsler Memory Scale-Revised, Thomas scored in the 24th percentile for retention of story facts, which is a high low average, and performed "poorly" on several sampled Wechsler Adult Intelligent Scale-Third Edition arithmetic problems of moderate difficulty. [Tr. 214].

Dr. Whitten diagnosed Thomas with major depression, recurrent with features of generalized anxiety, panic disorder with agoraphobia, polysubstance dependence in reported early remission, and personality disorder not otherwise specified with borderline and co-dependent traits most noted, and assigned her a Global Assessment of Functioning (GAF) score of 45, suggesting serious symptoms. Based on his examination and a review of Thomas's medical and educational records, Dr. Whitten concluded that Thomas was able to understand moderately complex work tasks, though her concentration was well below average and work focus would be negatively affected by depressive apathy and loss of drive and episodes of panic. Dr. Whitten concluded that her "[w]ork pace then would be anticipated currently to be inadequate and not sufficiently sustained. Work focus might drift." [Tr. 215]. The ALJ gave Dr. Whitten's May 2000 opinion little weight because the evaluation was years before the application date and because the record suggested Thomas' substance abuse was heavier at the time. [Tr. 29].

In January 2005, Thomas returned to Dr. Whitten for a psychological evaluation for Family Support Services. Thomas reported that she remained constantly fatigued and in pain in her joints and muscles; and had near constant depression and anxiety with continuing daily bouts of panic episodes. Thomas said she would not typically go out alone and did not feel she could work at any jobs because she feared becoming enraged towards others and might either hit them or walk off the job to avoid doing so. Dr. Whitten observed that Thomas looked very ill and drained of energy, with a dark, yellowed face and eyes with dark circles "reflecting discomfort and months of poor sleep quality...[and] show[ing] signs of intense depression facially[.]" [Tr. 260].

Dr. Whitten opined:

[H]er potential is clearly average but she does not quite reach that level due to impaired concentration and memory and lack of formal education quitting school just a few months into her ninth grade...She continues to show impairment in mental computations as a sign of heavily damaged concentration ability.... Janet can understand semi-skilled work procedures. Her retention is well below average of what she hears once and may be a problem in work settings. She has seriously impaired concentration and may not be able to sustain concentration on even simple work tasks over a work day or week off medications.

[Tr. at 261]. Dr. Whitten suggested that if Thomas was taking medication she would have "much better functioning." [Tr. 263]. He also noted Thomas' report of difficulty getting along with others while off medication, but indicated she adequately related to him. Dr. Whitten thought Thomas could adapt to work changes and make simple work decisions. The ALJ gave Dr. Whitten's January 2005 opinion little weight because it was rendered before Thomas' application date and not supported by later evidence of moderate symptoms. [Tr. 30].

Thomas began seeing Christopher Andrew, M.D., a neurologist and psychiatrist, in August 2005 reporting headaches occurring two to three times per week with nausea, vomiting, phonophobia, and photophobia. Thomas was prescribed Topomax and Depakote. By December 2005, Thomas was reporting irritability to Dr. Andrew along with mood swings and poor sleep. Thomas was diagnosed with migraines, anxiety and sinusitis. Thomas continued to see Dr. Andrews on a monthly basis through June 2006 and received refills on her medications. In June 2006, Thomas reported anxiety. She had not filled a prior prescription and was attempting to get custody of her three-week old grandson. When Thomas returned in October 2006, she was off all medications.

In October 2006, Thomas saw Alan Ramsey, M.S., a licensed psychologist, for an evaluation for purposes of applying for Medicaid. In addition to performing a full psychological evaluation, Mr. Ramsey reviewed some of Thomas's prior records. [Tr. 581-82]. He diagnosed alcohol dependency in remission, panic disorder without agoraphobia, and chronic posttraumatic stress disorder, and assigned Thomas a GAF score of 51, a score suggesting moderate symptoms. He concluded that Thomas met the criteria for medical assistance from the state, which includes the inability work because of a medical condition, and recommended she seek treatment and a referral to vocational rehabilitation. The ALJ gave Mr. Ramsey's opinion little weight, concluding that it was inconsistent with the GAF score suggesting moderate symptoms, and appeared to be based on Thomas' subjective reports.

Thomas saw Amy Kay Cole, Ph.D. in November 2006 for a psychological evaluation for DDS. Thomas reported that she had been fired from the majority of her jobs in the past because she was calling in sick too frequently and that her biggest obstacles to employment included difficulty with depression and concentration. She also reported a long history of panic attacks due to multiple triggers, including large groups of people, financial difficulties, and custody issues related to her grandson.

Dr. Cole observed that Thomas looked older than her stated age, was disheveled and walked somewhat slowly, and her mood was slightly depressed and affect flat. Thomas' cognitive functioning was intact with mild concentration difficulties. She was not taking any medication and had not had counseling in many years. Dr. Cole opined that Thomas was experiencing a major depressive episode with crying spells, limited concentration, excessive sleeping, and limited energy, and weekly panic attacks. Dr. Cole diagnosed Thomas with major depressive disorder, recurrent, moderate; panic disorder with agoraphobia; alcohol dependence, in full sustained remission; and personality disorder, not otherwise specified, with borderline features, by prior psychological evaluation. Dr. Cole assigned Thomas a GAF score of 52, suggesting moderate symptoms, and opined:

Ms. [Thomas] would be able to understand simple tasks. She would require regular, consistent supervision in order to sustain concentration and persist in those tasks. She would not work well with the general public, and she would require a very small number of coworkers and a supervisor in the event that she did return to work. In sum, she would be able to adapt to a simple workplace environment if she received regular supervision. It is likely that her depression and anxiety will lead to frequent absences in the workplace.

[Tr. 279]. The ALJ gave most of Dr. Cole's opinion little weight, as not being supported by indications of moderate symptoms, except the part of the opinion regarding restriction with the ...

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