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Dichiro v. Berryhill

United States District Court, E.D. Missouri, Eastern Division

June 28, 2017

NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security, Defendant.


          JOHN M. BODENHAUSEN United States Magistrate Judge

         This action is before the Court, pursuant to the Social Security Act (“the Act”), 42 U.S.C. §§ 401, et seq. The Act authorizes judicial review of the final decision of the Commissioner of Social Security (the “Commissioner”) denying Plaintiff Brenda J. DiChiro's application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) benefits. All matters are pending before the undersigned United States Magistrate Judge with consent of the parties, pursuant to 28 U.S.C. § 636(c). The matter is fully briefed, and for the reasons discussed below, the Commissioner's decision will be reversed and remanded.


         In January 2013, Plaintiff filed applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Plaintiff alleged a disability onset date of December 11, 2009. Because Plaintiff filed a previous application for benefits that was denied and is now final, the Social Security Administration only considered the time period from November 29, 2011. (Tr. 16, 55-61)[2]

         Plaintiff's claims in this matter were initially denied on March 28, 2013. (Tr. 16) Thereafter, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was held on December 2, 2014. (Tr. at 16, 32) Plaintiff and Nancy Hughes, an impartial Vocational Expert (“VE”), testified at the hearing. On December 19, 2014, the ALJ issued a decision concluding that Plaintiff was not disabled under the Act. (Tr. 16-26) The Social Security Administration Appeals Council denied Plaintiff's request for review, leaving the ALJ's decision as the final decision of the Commissioner in this matter. (Tr. 1-3) Plaintiff filed the instant action on March 29, 2016. (ECF No. 1) Accordingly, Plaintiff has exhausted her administrative remedies and the matter is properly before this Court. Plaintiff has been represented throughout all relevant proceedings.

         Although the ultimate issue before the Court is whether substantial evidence supports the Commissioner's decision, Plaintiff presents two narrow issues for this Court's review: (1) whether, at step two, the ALJ erred in failing to find that Plaintiff had a medically determinable mental impairment of anxiety; and (2) whether the ALJ erred in failing to provide Plaintiff's medical records to consulting psychologist Thomas Spencer, Psy.D.

         The ALJ's decision in this matter is generally thorough, thoughtful, organized and well-reasoned. On the basis of the existing record, however, the undersigned cannot say that the ALJ's decision adequately considered Plaintiff's history and diagnoses of anxiety. The record makes clear that the ALJ was aware of and must have considered Plaintiff's history of anxiety. Yet in making her severity findings the ALJ did not mention Plaintiff's anxiety. Arguably, the ALJ implicitly found Plaintiff's anxiety to be a non-severe impairment. Although the government may be correct that, regardless of how one characterizes Plaintiff's anxiety, she is not disabled and any error is harmless, the undersigned concludes that the matter must be remanded so that the ALJ can address this issue directly.


         Plaintiff was 55 years old on the date of her administrative hearing. In her Disability Report - Adult form, Plaintiff listed the following physical and mental conditions that impaired her ability to work: (1) depression; (2) homelessness; (3) problems with people, family, and children; (4) cannot find work; (5) people will not hire her; and (6) she does not have a car.[4] (Tr. 199) In a Function Report - Adult, dated February 2, 2013, Plaintiff listed numerous limitations regarding his ability to work, often mentioning factors not directly related to physical or mental health (e.g., homelessness). Plaintiff indicated that her impairments affected the following abilities: lifting, reaching, memory, completing tasks, concentration, using hands, and getting along with others. (Tr. 240-47)

         A person identified in the record as “S. Mallin, ” completed a Function Report Adult - Third Party, dated, February 5, 2013. (Tr. 21, 254-61) S. Mallin represented that s/he had known Plaintiff for 30 years. Like Plaintiff, S. Mallin's report often mentioned Plaintiff's homelessness as the reason she cannot perform various activities of daily living. S. Mallin represented that Plaintiff's conditions impacted her memory, concentration, and ability to get along with others. (Tr. at 259)

         The record also includes medical records, including records concerning Plaintiff's treatment for her mental health issues, as well as various physical health issues. Those records are discussed, as necessary, below.

         On December 2, 2014, the ALJ conducted a hearing on Plaintiff's applications. (Tr. 32-53) Plaintiff appeared in person, with counsel. Appearing by telephone was Nancy Hughes, an independent vocational expert (“VE”).


         In assessing whether Plaintiff was disabled, the ALJ followed the required five-step process laid out in the Commissioner's regulations. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the last determination regarding her application for benefits-November 29, 2011. (Tr. 16) At step two, the ALJ found that Plaintiff's only severe impairment was depression. (Tr. 19) The ALJ also found -

[Plaintiff's] history of possible substance abuse, various pains in legs/limbs, alleged hearing loss, and history of rash … to be non-severe, as there is no evidence of sustained treatment and/or no indication that these [impairments] have imposed more than minimal functional limits for 12 months during the time in question.

(Tr. 19) At step two, the ALJ did not specifically mention Plaintiff's prior anxiety diagnoses and treatment. The ALJ noted, however, as follows:

Other impairments are mentioned in the record from time to time, but they did not cause significant limitations in functioning, or did not last for a continuous period of 12 months. Any such impairment is non severe. However, any non-severe impairment has been taken into account in assessing Plaintiff's residual functional capacity.


         At step three, the ALJ found that none of Plaintiff's impairments-whether considered alone or in combination-met or equaled a listed impairment. (Tr. 14-16) Regarding Plaintiff's mental impairment, the ALJ found that Listing 12.04[5] was not met. (Tr. 19) The ALJ concluded that Plaintiff had mild difficulties in her activities of daily living, and moderate difficulties in her social functioning, and ...

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