Shirley Shontos v. Jo Anne Barnhart ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-1866
___________
Shirley Shontos, *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Jo Anne B. Barnhart, Commissioner *
of Social Security Administration, *
*
Defendant-Appellee. *
___________
Submitted: December 12, 2002
Filed: March 7, 2003
___________
Before WOLLMAN, LAY, and MAGILL, Circuit Judges.
___________
LAY, Circuit Judge.
Shirley Shontos appeals from a judgment of the district court affirming a final
decision of the Commissioner of Social Security denying her Disabled Widow’s
Benefits. We reverse with instructions to the district court to remand to the
Commissioner for award of benefits.
I.
Ms. Shontos filed an application with the Social Security Administration for
Disabled Widow’s Benefits on December 7, 1998, following her husband’s death on
November 18, 1998. (A.R. at p.13). Prior to his death, Steven Shontos had worked
at International Paper Company for thirty-two years. The Shontos had been married
for thirty-two years. At the time of her husband’s death, Ms. Shontos was fifty years
old. She has a ninth-grade education, and no history of outside employment during
the time period relevant to our inquiry.1 She has done some babysitting for her
granddaughter. The record is inconclusive as to whether she was paid for babysitting.
Ms. Shontos applied for disability benefits, claiming she was unable to work
as a result of multiple impairments including mild mental retardation/borderline
intellectual functioning; degenerative joint disease of the lower back and hands;
arthralgias of the shoulders; hiatal hernia and gastroesophageal reflux disease;
hypertension; major depressive disorder; adjustment disorder with mixed anxiety and
depressed mood; generalized anxiety disorder; and dependent personality disorder.
These impairments have been verified by the state’s consulting physicians. Ms.
Shontos disagrees that the combination of her mental and physical impairments did
1
The record indicates that Ms. Shontos held one job briefly outside the home
fifteen years ago. That job involved folding and packaging clothing at a dry cleaners.
She was terminated after two months due to her inability to perform the work.
-2-
not equal the listed impairment under 20 C.F.R. Pt. 404, Subpt.P, App. 1, § 12.05C.2
In December 1998, Ms. Shontos underwent a consultative psychological
evaluation by Janet Drew, Ph.D., a licensed psychologist. Dr. Drew administered the
Wechsler Adult Intelligence Scale-III. Dr. Drew noted that Ms. Shontos had
significant difficulties with intellectual functioning, finding that she had below-
average verbal and non-verbal abilities. Ms. Shontos’ verbal intelligence quotient
(IQ) score was 76, placing her in the fifth percentile; and her performance and full
scale IQ’s were both 72, placing her in the third percentile. Dr. Drew noted that Ms.
Shontos’ attention, concentration, and pace was variable. Dr. Drew’s opinion
indicated that Ms. Shontos may not be aware of the accuracy of her decisions, and
may have difficulty demonstrating good judgment at all times. Dr. Drew noted that
Ms. Shontos would need close supervision, support, and assistance in order to
respond appropriately to changes in the work place.
On January 14, 1999, Ms. Shontos sought grief counseling from Julian Burn,
Ph.D., a treating clinical psychologist at Gannon Center, a community mental health
2
12.05. Mental Retardation and Autism: Mental retardation
refers to a significantly subaverage general intellectual
functioning with deficits in adaptive behavior initially
manifested during the developmental period (before age
22) . . . The required level of severity for this disorder is
met when the requirements in A, B, C, or D are satisfied.
***
C. A valid verbal, performance, or full scale IQ of
60 through 70 and a physical or other mental impairment
imposing additional and significant work-related limitation
of function; . . .
20 C.F.R. Pt. 404, Subpt.P, App. 1, § 12.05C.
-3-
center in Clinton, Iowa. Dr. Burn’s initial diagnosis of Ms. Shontos included: (1)
major depressive disorder, (2) adjustment disorder with mixed anxiety and depressed
mood, and (3) bereavement. In March 1999, Ms. Shontos requested that she see a
female therapist for counseling. Dr. Burn referred Ms. Shontos to Sandy Bookmeyer,
M.S. Ed., N.C.C., R.N., a counselor at Gannon Center. Ms. Bookmeyer is a
nationally certified counselor who holds a master’s degree in counseling. In addition,
she is a registered nurse. Ms. Shontos met with Ms. Bookmeyer for weekly
counseling from March 1999 through March 2000, after which they met
approximately once per month. At the time Ms. Bookmeyer wrote her opinion
regarding Ms. Shontos’ work-related abilities, she had conducted forty-six counseling
sessions with Ms. Shontos. Other mental health providers from Gannon Center
regularly worked with Ms. Shontos, including Anabel Flaherty, Advanced Registered
Nurse Practitioner, who reviewed and prescribed Ms. Shontos’ psychiatric
medications.
Nurse Practitioner Flaherty completed a “Questionnaire as to Mental Health
Residual Functional Capacity”3 for Ms. Shontos, indicating in response to fifteen of
eighteen questions posed, that Ms. Shontos had “marked” to “severe” limitations4 in
residual functional capacity (“RFC”). In addition, Ms. Flaherty noted that Ms.
Shontos was a highly anxious, depressed, dependent woman who had never
3
A pre-printed note at the bottom of the Questionnaire at p.5 stated: “Note to
Administrative Law Judge: The Social Security Administration’s Regulations, POMS
DI § 25020.125, states that a finding of a Marked or greater impairment in any of the
areas listed above means that the individual is so restricted that a finding of
‘Disabled’ is merited.”
4
The Questionnaire defined a “marked” impairment as an impairment which
affects the patient 25% to 50% of the time, and an “extreme” impairment as an
impairment of ability to function at a level exceeding 75% of the time. (A.R. at
p.160.)
-4-
functioned in traditional work settings, who met the criteria for dependent personality
disorder.
Dr. Burn and Ms. Bookmeyer completed Ҥ 245.7 Form: Medical Opinion Re:
Ability to Do Work-Related Activities (Mental).” Dr. Burn completed the form in
November 1999, indicating that for the majority of questions, Ms. Shontos had “fair”
or “poor or none”5 ability to perform the activity in question. Dr. Burn noted “[s]he
is quite anxious, worrysome (sic) and sensitive to criticism (and) conflict of any sort;
very unsure of herself (and) lacks confidence (and) self esteem.” (A.R. at p.189.)
[T]he chance of anxiety would interfere with her productivity.” (Id. at p.190.)
Ms. Bookmeyer completed the Questionnaire in June 2000, indicating that in
most areas Ms. Shontos had “poor to none” ability to perform various types of work.
Ms. Bookmeyer noted that Ms. Shontos had anxiety and dependency which “interfere
significantly with her functioning.” (A.R. at p.207.) Ms. Bookmeyer attached a letter
to her opinion, which stated in part:
Shirley has a great deal of difficulty focusing on things as simple as a
conversation. As a result of her generalized anxiety disorder, major
depressive disorder and dependent personality disorder, Shirley is
constantly being distracted by obsessive thoughts and overriding worries
about financial matters, her own health, her family’s well being, whether
she is making the correct decision about something, etc.
We have also become aware of Shirley’s obsessive compulsive
tendencies, in addition to her other difficulties. Even during a 50 minute
session, it often becomes necessary to interrupt her pressured and non
stop speech pattern and ask her to listen to exactly what I am saying.
Even when I do ask her to listen it is with obvious difficulty that she is
5
“Fair” is defined as: the ability to function in this area is seriously limited, and
“poor or none” is defined as: no useful ability to function in this area. (A.R. at
p.189.)
-5-
able to focus in, even briefly, on what I am telling her. Shirley is not
doing this because of rudeness, but as a result of the ever present and
oppressive anxiety and depressive symptoms she experiences.
(A.R. at p.205.)
Both Dr. Burn and Ms. Bookmeyer anticipated that Ms. Shontos’ impairments
would cause her to be absent from work “more than four days per month.” (A.R. at
pp. 190, 208.)
State agency psychological consultants Dee Wright, Ph.D., and Mark Souza,
M.D., reviewed Ms. Shontos’ medical records. From this limited examination, Dr.
Souza indicated that Ms. Shontos exhibited “[d]isturbance of mood, accompanied by
a full or partial manic or depressive syndrome, as evidence by . . . diagnosis of major
depressive disorder and adjustment disorder with mixed anxiety and depressed
mood,” for purposes of §12.046 assessment. (A.R. at p.148.) Both Dr. Souza and Dr.
Wright found that Ms. Shontos had “[s]ignificantly subaverage general intellectual
functioning with deficits in adaptive behavior initially manifested during the
developmental period (before age 22)” as evidenced by borderline intellectual
functioning, for purposes of § 12.05 assessment. (A.R. at pp.131, 149.) Dr. Wright
was of the opinion that Ms. Shontos had moderate cognitive restrictions secondary
to her borderline intellectual functioning, but despite these restrictions believed that
Ms. Shontos was capable of performing non-complex, repetitive, and routine
cognitive activity. Dr. Souza indicated that Ms. Shontos’ impairments were severe
and consistent with listings 12.04 and 12.05, but did not meet or equal a listed
6
“12.04 Affective Disorders: Characterized by a disturbance of mood,
accompanied by a full or partial manic or depressive syndrome. Mood refers to a
prolonged emotion that colors the whole psychic life; it generally involves either
depression or elation.”
20 C.F.R. Pt. 404, Subpt.P, App. 1, § 12.04.
-6-
impairment. He offered no opinion as to whether her combination of impairments
was medically equivalent to a listed impairment. Dr. Souza was of the opinion that
despite Ms. Shontos’ limitations, she was cognitively and emotionally capable of
carrying out simple, routine tasks without the need for continuous supervision.
In January 2000, Stanley Rabinowitz, M.D. conducted a physical examination
of Ms. Shontos for the state. He found that she had generalized anxiety and chronic
depression, exacerbated by her husband’s death. He noted that her grip strength in
both hands was 70% of normal with mild impairment of digital dexterity. Dr.
Rabinowitz indicated that Ms. Shontos had decreased range of motion in her lumbar
spine, and had moderate difficulty getting on and off the examining table and
squatting. In addition, he stated that x-ray results confirmed a diagnosis of
degenerative joint disease with expected functional limitations. The Social Security
Administration denied Ms. Shontos’ claim on February 12, 1999, and again on
rehearing. An administrative law judge (“ALJ”) denied her claim following an
administrative hearing held in December 1999.
The ALJ found that Ms. Shontos had no past relevant work, and had no
transferable acquired work skills. However, he found that Ms. Shontos retained the
RFC to perform physical exertional and nonexertional requirements of work with the
following limitations: lift no more than twenty-five pounds occasionally, lift ten-to-
fifteen pounds repeatedly at a maximum; stand up to one hour at a time, sit from one-
to-two hours at a time, and six to eight hours out of an eight hour work day; walk up
to one hour at a time, with standing and walking up to six hours out of an eight hour
work day; no repetitive bending, stooping, twisting, squatting, kneeling, crawling,
climbing, pushing and pulling, or overhead work with the arms; avoid working at
heights or with moving machinery; perform only simple, routine, repetitive work, not
requiring close attention to detail; requires occasional supervision; work at no more
than a regular pace, and tolerate no greater than a mild level of stress. The ALJ
considered testimony from a vocational expert in response to his hypothetical based
-7-
on Ms. Shontos’ limitations, and found that she could perform the following jobs
which exist in significant numbers in the national economy: library page, document
preparer, or addresser.
The ALJ held that Ms. Shontos’ impairments did not equal the medical
equivalent of listing 12.05C impairment, and concluded that she was not disabled.
20 C.F.R. § 404.1520(f). The Appeals Council denied review. The district court
subsequently affirmed the Commissioner’s decision.
II.
This court’s review of the district court’s judgment “is limited to whether the
Commissioner’s denial of benefits is supported by substantial evidence in the record
as a whole.” Terrell v. Apfel, 147 F.3d 659, 661 (8th Cir. 1998). Substantial
evidence exists if a reasonable mind would find such evidence adequate to support
a conclusion. Id.; Cf. Gaddis v. Chater, 76 F.3d 893, 895 (8th Cir. 1996) (holding
that evidence that supports the ALJ’s decision as well as that which detracts from it
must be considered).
“[T]he Social Security Amendments Act of 1954 defined ‘disability’ as
‘inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment . . . .’” Bowen v. Yuckert, 482 U.S. 137,
146 (1987) (quoting 42 U.S.C. § 423 (d)(1)(A). The Commissioner has established
a five-step evaluation process pursuant to the Social Security Act for determining
whether a claimant is disabled within the meaning of the Act. Id. at 140; 42 U.S.C.
§ 423(d)(1)(A). At step three, the Commissioner must determine whether the
claimant’s impairment meets or equals one of the listed impairments. Yuckert, 482
U.S. at 141; 20 C.F.R. § 404.1520 (2000). If the claimant has an impairment that
meets the medical criteria of a listed impairment, the claimant is presumptively
disabled, and no further inquiry is necessary. Id.-8-
A finding that a claimant’s impairment is not equal to a listed impairment does
not end the inquiry. The regulations provide that if a claimant has more than one
impairment, the combined effect of the impairments will be considered. Id. The
medical equivalence regulation states “[i]f you have more than one impairment, and
none of them meets or equals a listed impairment, we will review the symptoms,
signs, and laboratory findings about your impairments to determine whether the
combination of your impairments is medically equal to any listed impairment.” 20
C.F.R. § 404.1526(a). The determination of medical equivalence is made based on
medical evidence, supported by acceptable laboratory and clinical diagnostic
techniques. Id. at (b). In addition, the Commissioner will consider medical opinions
of designated medical or psychological consultants. Id.The Commissioner has issued instructions for determining medical equivalence
through the Program Operations Manual System (“POMS”).7
7
The applicable POMS provide:
D. Determining Medical Equivalence in Particular Situations
1. MEDICAL EQUIVALENCE AND MENTAL RETARDATION
Listing 12.05C, Mental Retardation and Autism, applies primarily to
adults with significantly subaverage intellectual functioning and deficits
in adaptive behavior that were initially manifested in the individual’s
developmental period (before age 22). As with other mental impairment
categories, the focus of Listing 12.05 is on the individual’s inability to
perform and sustain critical mental activities of work.
* * *
c.12.05C
Listing 12.05C is based on a combination of an IQ score with an
additional and significant mental or physical impairment. The criteria
for this paragraph are such that a medical equivalence determination
-9-
Here, the evidence of record establishes that Ms. Shontos’ IQ of 72 was only
slightly higher than the presumptive disability range of 60-70. Evidence from her
treating mental health providers established that her anxiety, dependency, and
depression would significantly interfere with her ability to work. In addition,
evidence from Dr. Rabinowitz, the state’s consulting physician, established that Ms.
Shontos had physical limitations in addition to her mental health limitations. Dr.
Rabinowitz offered the opinion that Ms. Shontos had functional limitations due to her
diagnosis of degenerative joint disease. Although POMS guidelines do not have legal
force, and do not bind the Commissioner, this court has instructed that an ALJ should
consider the POMS guidelines. Berger v. Apfel, 200 F.3d 1157, 1161 (8th Cir. 2000);
List v. Apfel, 169 F.3d 1148, 1150 (8th Cir. 1999).
There is no evidence that the ALJ considered the POMS guidelines. In
reaching his decision that Ms. Shontos’ impairment or combination of impairments
were not medically equivalent to a listed impairment, the ALJ disregarded the POMS
guidelines. He discounted the medical opinion of Ms. Shontos’ treating psychologist,
and the opinions of Ms. Shontos’ therapist and nurse practitioner from Gannon
Center, in favor of the opinions of non-treating, non-examining physicians and
psychologists who relied exclusively on the medical reports of others, including Dr.
Burn, to arrive at their opinions.
would very rarely be required. However, slightly higher IQ’s (e.g. 70-
75) in the presence of other physical or mental disorders that impose
additional and significant work-related limitation of function may
support an equivalence determination. It should be noted that generally
the higher the IQ, the less likely medical equivalence in combination
with another physical or mental impairment(s) can be found.
POMS § DI 24515.056.
-10-
First, the ALJ held that the opinion of Dr. Burn would not be afforded
controlling weight because his “assessment appears not to have incorporated the
evidence that when the claimant did get her medication that she did much better . . . .”
ALJ Decision at p.11. The ALJ discounted Dr. Burn as a treating source, stating:
Further, though the psychologist had available to him the treating notes
of counselor, the record does not show that the psychologist saw the
claimant at any time after March 1999; therefore, he was not a treating
source at the time he completed the form, and he had not been for
approximately half a year. The treatment records from the Gannon
Center do not support the degree of limitations indicated by Dr. Burns
(sic) in any of the areas he reported. For these reasons the opinions and
conclusions of the psychologist cannot be afforded controlling weight
Id. (internal citations omitted).
The regulations do not define a treating source as one who is currently treating
a claimant at the time they complete the Questionnaire. However, even if we were
to assume that the ALJ’s interpretation is correct, Dr. Burn was Ms. Shontos’ treating
clinical psychologist for two months. At the very least, Dr. Burn had what the
regulations describe as an examining relationship, and accordingly, his opinion would
be given more weight than a source who had not examined Ms. Shontos. 20 C.F.R.
§ 404.1527 (d)(1).
Regarding Ms. Bookmeyer’s opinion, the ALJ made the following finding:
It should be noted that Ms. Bookmeyer is not a licensed physician, and
thus cannot be afforded great weight or even controlling weight with
respect to her opinion. Further the extreme limitations here are not
supported by the record. For instance, the nurse (Ms. Bookmeyer)
indicated that the claimant had only a fair ability to maintain regular
attendance and be punctual within customary, usually strict tolerances.
However, nowhere in the record does it show that the claimant has ever
-11-
been late for an appointment. The nurse (Ms. Bookmeyer) has indicated
that the claimant has a great deal of concern about financial matters, but
poor or no ability to understand and remember detailed instructions.
However, the nurse said that the claimant was so concerned about her
financial situation that on any given day she can tell you what bills are
due on each day of the month and very likely the amount of money that
each bill entails. For the foregoing reasons the undersigned cannot
afford this evaluation of the claimant as having great weight.
ALJ Decision at p.14 (internal citations omitted).
Regarding the opinion of Ms. Flaherty, the ALJ stated:
First, it appears that the form was completed after Ms. Flaherty had seen
the claimant only one time. Second, Ms. Flaherty is not an acceptable
medical source as defined in 20 C.F.R. §§ 404.1502, 404.1513(a)(d).
Finally, the degree of impairment indicated on the form is not supported
by the treatment records. Therefore, little weight is given to the
opinions indicated on the form.
ALJ Decision at pp.9-10 (internal citations omitted).
The ALJ erred in determining that Ms. Flaherty was not an acceptable medical
source. Medical equivalence is determined by considering medical evidence and
other evidence of impairment. 20 C.F.R. § 404.1513. “Medical opinions are
statements from physicians and psychologists or other acceptable medical sources
. . . .” 20 C.F.R. § 404.1527(a)(2) (emphasis added). “In addition to evidence from
the acceptable medical sources listed . . . we may also use evidence from other
sources to show the severity of your impairment(s) and how it affects your ability to
work. Other sources include, but are not limited to- - (1) Medical sources not listed
. . . nurse-practitioners . . . and therapists.” 20 C.F.R. § 404.1513(d)(1) (emphasis
added). The regulations read together, indicate that nurse practitioners and therapists
are “other medical sources” whose opinions are considered medical opinions. Id.Accordingly, Ms. Flaherty and Ms. Bookmeyer are acceptable medical sources.
-12-
We further find the ALJ erred in discounting the opinions of Ms. Shontos’
treating mental health providers. The amount of weight given to a medical opinion
is to be governed by a number of factors including the examining relationship, the
treatment relationship, consistency, specialization, and other factors. Generally,
more weight is given to opinions of sources who have treated a claimant, and to those
who are treating sources. 20 C.F.R. § 404.1527(d). The regulations provide that the
longer and more frequent the contact between the treating source, the greater the
weight will be given the opinion: “When the treating source has seen you a number
of times and long enough to have obtained a longitudinal picture of your impairment,
we will give the source’s opinion more weight than we would give it if it were from
a nontreating source.” Id. at (d)(2)(i). A treating source’s opinion is to be given
controlling weight where it is supported by acceptable clinical and laboratory
diagnostic techniques and where it is not inconsistent with other substantial evidence
in the record. Id. at (d)(2). Where controlling weight is not given to a treating
source’s opinion, it is weighed according to the factors enumerated above. Id.Here, substantial evidence on the record as a whole reveals that Ms. Shontos
sought mental health care frequently at Gannon Center between January 1999, and
June 2000. Ms. Bookmeyer saw her forty-nine times over the course of fifteen
months, which is more than adequate to provide a longitudinal picture of Ms.
Shontos’ impairment. Substantial evidence indicates that the Gannon Center
provided a team approach to mental health care. Ms. Shontos was treated by
therapists Burn and Bookmeyer. She was evaluated intermittently by Ms. Flaherty
for the purpose of prescribing psychiatric medication. In addition, Ms. Shontos was
seen twice a week by a social worker from Gannon Center. The opinions offered by
Dr. Burn, Ms. Bookmeyer, and Ms. Flaherty reflected clinical judgments of
professionals who had interacted with and observed Ms. Shontos over time. Their
opinions and evaluations were based on a longitudinal perspective of Ms. Shontos.
The opinions of these three treating mental health care providers were consistent.
-13-
The ALJ’s assertion that these source’s opinions were inconsistent with the
record, and therefore should not be afforded controlling or great weight, is not borne
out by the record. At most, the record is deficient in documentation to support their
opinions, e.g., documentation in the record regarding Ms. Shontos’ attendance. The
ALJ criticized the opinion by Dr. Burn that Ms. Shontos would have “poor to no
ability to deal with the stress of semi-skilled and skilled work, and would have a fair
ability to understand and remember detailed instructions, carry out detailed
instructions, and maintain socially appropriate behavior.” (ALJ Decision at p.11.)
The ALJ commented that this opinion by Dr. Burn “appears not to have incorporated
the evidence that when the claimant did get her medication that she did much better,
was able to smile and laugh at times, appeared much calmer, and said she had been
sleeping better since receiving the medication.” Id. This was an inference on the part
of the ALJ. No medical source provided an opinion that the fact that Ms. Shontos did
better while taking prescribed medication negated Dr. Burn’s opinion that Ms.
Shontos would have difficulty with detailed instructions.
In Lund v. Weinberger, 520 F.2d 782, 785 (8th Cir. 1975), we held, “[a]n
administrative law judge may not draw upon his own inferences from medical
reports.” Here, the ALJ improperly drew inferences from the medical reports, and
relied on the opinions of nontreating, nonexamining medical consultants who relied
on the records of the treating sources to form an opinion of Ms. Shontos’ RFC. The
opinions of non-treating practitioners who have attempted to evaluate the claimant
without examination do not normally constitute substantial evidence on the record as
a whole. Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999). “Likewise, the
testimony of a vocational expert who responds to a hypothetical based on such
evidence is not substantial evidence upon which to base a denial of benefits.”
Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000).8
8
When the analysis reaches step five, the Commissioner has the burden to
show: (1) the claimant retains the residual functional capacity to do other kinds of
-14-
III.
We find that the ALJ did not have adequate reason to discount the opinions of
Gannon Center mental health care providers Dr. Burn, Ms. Bookmeyer, and Ms.
Flaherty. The opinions of these treating sources should have been afforded greater
weight than those of the nontreating, nonexamining consultants.
We find that there is substantial medical evidence on the record as a whole
from Ms. Shontos’ treating mental health providers that she suffers from marked
disabilities that would interfere with her ability to work. There was substantial
medical evidence to support a finding that the combination of Ms. Shontos’
impairments: borderline intellectual functioning, psychiatric affective disorders, and
physical disabilities, were medically equivalent to listing 12.05C.
Accordingly, we reverse the judgment of the district court with instructions to
remand to the Commissioner for calculation and award of benefits.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
work, and (2) that such other work exists in substantial numbers in the national
economy. McCoy v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir. 1982 ) (en banc);
Nevland, 204 F.3d at 858. Reaching step five, relying on the opinion of a vocational
expert, the ALJ found that Ms. Shontos retained the RFC to perform the physical
exertional and nonexertional requirements of work enumerated above.
-15-