*1 damages the emotional-distress affirm we Accordingly, the economic-dam-
award. $227,569 to from award is reduced
ages damages total
$85,904, resulting in the $459,976 from being reduced
award
$318,311. the case to the dis- remand We judg- an amended entry
trict court opinion. this
ment consistent with PATE-FIRES, Appellant,
Donna ASTRUE, Appellee.
Michael J.
No. 07-3561. Appeals,
United States Court
Eighth Circuit. 13, 2008.
Submitted: June 6,May
Filed:
Eugene Wallace, Gregory argued, Buies Creek, NC, Bartels, Anthony W. Jones- boro, AR, brief, on appellant. Fisher, Security Admin., Clare Social ar- Dallas, TX, gued, Wendell, Tina M. Social Admin., Dallas, Security TX, Stacey E. AR, bile, AUSA, Rock, angry depressed, her mood McCord, Little on the psychomotor status tense. Her then- brief, appellee. previously she had held reported husband BYE, MURPHY, Before jobs, of which had number none lasted *3 SHEPHERD, Judges. Circuit than a couple for more weeks. He also reported hospitalized she had been BYE, Judge. Circuit becoming three months in 1987 after man- district appeals the Donna Pate-Fires ic, again and psychotic, threatening, and affirming the decision of court’s order symptoms. diag- 1988 for similar She was (ALJ) denying judge administrative law severe, bipolar nosed with disorder I disability insurance application her features, psychotic assigned and a current security income supplemental benefits and (GAF) Functioning Global Assessment of (SSI). contends the ALJ’s de- Pate-Fires of 40.1 has the residual functional termination she During stay at Western (RFC) past her work Institute, Mental Health she was delusion- by substantial evidence supported is not al placed and on assault observation. She agree a the record as whole. We required injection a Haldol for delusional of the dis- judgment therefore reverse the February and bizarre behavior. On matter with trict court and remand this tried to escape facility she from the instructions to award benefits. window, by climbing despite out her fact she was told she was scheduled be I discharged day. the next The medical rec- February Pate-Fires was born on responded Depa- ords indicate she well to high has a school education and 1964. She kote, intrusive, became less and showed at past relevant work as stocker Wal- peers better interaction with and staff. 30, 1999, January Pate-Fires Mart. On Id. at discharged 168. She was on Febru- emergency inpatient admitted for was ary Despite improvements, her at Mental Health Insti- treatment Western prognosis guarded the doctor’s was “due to Jonesboro, Arkansas, being tute in after (sic) history psychotic given state and at 170. In addition to arrested. R. patient.” Id. at 69. At the time of dis- kill threatening spouse her her charge her GAF score was still 40. Id. neighbors, Pate-Fires called the fire de- 5, 2002, partment falsely claiming neighbor’s her On December Pate-Fires was again house was on fire. Id. She then went to admitted to the Western Mental basis, neighbor’s banged involuntary house and on the Health Institute on an being door to alert them there was a fire in their this time after for disorder- arrested ly attacking house. Id. When she realized there was conduct as a result of house, began claiming threatening spouse. no fire in them Id. at 154. Ac- summary cording her house was on fire. Id. The medical of her examination, was disheveled and at the time of admission she records indicate she guarded questioning, paranoid her affect was la- exhibited homicidal ideations and 1994) (DSM-IV). ranging A 1. The GAF is a numeric scale from ric Assn GAF of 31 to 40 social, "impairment zero to one hundred used to rate occu- indicates the individual has an pational psychological functioning reality testing communication ... [a] "on a or or areas, major impairment hypothetical mental health-ill- in several such as continuum of school, relations, family judgment, Diagnostic ness.” and Statistical Manual of work Disorders, Psychiat- thinking, Id. Mental ed. Am. or mood....” Pate-Fires, keep “[j]udgment poor her mental noted her delusions refused appointments by or take her medi- evidenced medication noncompli- health as diagnosed Id. She was with a de- “[flnsight poor cation. ance” and her as evi- personality pressive disorder and disor- feeling denced not as if she needs to be prescribed Doxycycline. The der and was at the hospital for treatment.” summary further noted was com- “[s]he February began judgment denial of illness and plete Erby, treatment outpatient David lengthy history poor.... has [She] treating At psychiatrist MSHS. noncompliance with medication. She has time her was 50. Id. at 119. GAF score conflict, family had recent manic behavior *4 2, 2004, Erby March On Dr. evaluated her and homicidal threats. has limited She treatment, noting gone she had off her insight.” discharged Id. Pate-Fires was previous hospitalization medicine after her 11, final diagno- on December 2002. Her relapsed and had to a at 125. degree. Id. depressive sis was disorder and a GAF However, Erby Dr. indicated she was now score of 50.2 Id. at 56. The doctors’ back on her medication and did not show prognosis “[p]oor for her was due to un- any hypomania. evidence mania or Id. derlying personality traits.” Id. Erby’s Dr. notes indicate Pate-Fires was 2003, On December Pate-Fires was month, up to follow in one or sooner if she Systems, admitted to Health Mid-South was unable to tolerate the medication. Id. (MSHS) Jonesboro, Arkansas, Inc. in on notes, In an addendum to his evaluation emergency police after the an basis arrest- Erby provided following on Pate- (she stealing ed her for harassment and disability Fires’s status: gas filled her car with and then drove being major Ms. Pate is treated for a it). away paying without R. at 130. capable disorder. is not She Pate-Fires stated she did not understand in participating gainful employment. her, happens to what and she was afraid. disability Her is related to the nature stated, repeatedly me, forgive She “God her illness and side effects from the forgive diagnosed God me.” Id. She was medication. Her stress tolerance is bipolar given with disorder and a GAF quite ability stay low. Her focused score of 45. Id. at 131. She remained at impaired. with even minor tasks is Her 30, 2003, until MSHS December when she ability supervisors to interact with and involuntarily was committed to the Arkan- to follow impaired. instructions is Dis- Hospital, sas State Division of Mental expected persist beyond one (ASH). Health Services On admission to year. ASH, diagnosed bipo- Pate-Fires was disorder, one, type lar given a GAF 25, 2004, score of 31. at At February Id. the time of On Pate-Fires filed discharge January benefits, diag- application she was alleging for SSI disorder, one, bipolar nosed with type January with she had been disabled since her episode being most recent “manic with as a result of impairments, various mental features,” psychotic disorder, given including bipolar and a a GAF schizoaffective disorder, score of 51.3 The psychiatrist treating schizophrenia. Id. The Social and/or 2. A GAF of 41 to 50 indicates the individual 3. A GAF of 51 to 60 indicates the individual symptoms symptoms has ... "[s]erious serious has ... ”[m]oderate or moderate social, social, occupational, difficulty occupational, or school or school functioning....” functioning....” DSM-IV at 32. DSM-IV at 32. (SSA) Although her she had little recollection of the denied Security Administration admission, to her reconsideration. incident that led she initially and on application following account to provided CSU application her initial SSI Following joint “that she had smoked a staff: benefits, to receive continued Pate-Fires boyfriend, daughter, daughter’s her mental illness. attention for medical that the next persons; thing and 3 other Erby. again saw Dr. she April On yelling screaming she remembers Erby noted appointment, At the somebody on her front lawn and called the on her current feeling better Fires police” or “she walked the Police sta- regimen (Zyprexa Trilep- medication tion.” tal); nearly foggy mind was not as admission, At racing thoughts. Dr. the time of having was not hypo- of mania or had a GAF score of 36. Id. 325. She Erby found no evidence stopped taking her GAF to be 54. Id. indicated she her medi- reported manic dis- June cation after her last appointment sometime treat- outpatient Erby from MSHS’s charged with Dr. October of 2004 because had not shown *5 program because she I ment “I don’t feel like need them.” Id. Fol- sixty days in over and the up admission, for treatment lowing Erby her Dr. evaluated had to reach her clinic been unable diagnosed Pate-Fires and her with schi- summary 121. or mail. Id. at The phone marijuana zoaffective disorder abuse discharge states she exhibited a of her assessed her to have GAF score of symptoms, but did show a fluctuation at judg- 52. Id. 235. He indicated her medication. Id. positive response to insight “[s]ignificantly ment and were im- paired”; suffering “[vjague she was from 9, 2004, George Dr. DeRoeck June On delusions”; her paranoid intentions noted, although He evaluated Pate-Fires. “ guarded; about others was and she exhib- ‘may’ engage she be able to she stated “ affect.” “[inappropriate ited Id. job,” many ‘minimized’ a low stress she Erby provided following Dr. assess- swings,” signifi- mood which was of her ment of her then-current mental status: Id. at 112. He also noted she cant. obviously very long has a patient The judgment and limited de- “poor evinced history psychotic affective and both regard to her discon- scriptive have character- symptoms. These been alluding only when tinued medication— ” Disorder, Bipolar ized as Schizoaffective liking ‘not the side effects.’ pressed to Disorder, Schizophrenia. Ongoing diagnosed at 118. Dr. DeRoeck her as Id. prominent problem, is a substance abuse disorder versus bi- having schizoaffective extremely poor insight resulting as is periodic psychotic fea- polar disorder with poor compliance.... medication Ms. tures, abuse, alcohol/cannabis/opiate and a major appears Pate to have 58. Id. at 117. then-current GAF score of gravely disorder which renders her dis- evaluation, on the Dr. DeRoeck’s Based oth- potentially dangerous abled and “guarded.” for Pate-Fires was prognosis ers. She should be committed to this Id. facility for additional treatment. 2005, 4, Department April the Police On Id. at 236. Arkansas, Tree, in Marked referred Pate- April Pate-Fires left CSU’s Fires to MSHS’s Crisis Stabilization Unit (CSU). instruction, facility, was re-admitted the Erby’s CSU residential but Per being up by the day picked unit next after admitted her to the residential staff records, According police after police. care. Id. at 325. inpatient for monitored According Id. at 229. appointment. had ress receiving information notes, reported “good she Erby’s of- to Dr. neighbor, police several threatened “symp- compliance” medication denied walking she was picked up ficers her while Erby psychosis.” of mania or carrying a crow bar and toms down the street concluded, appears “Donna my baby.” fuck nonetheless screaming, “You don’t any type employment. all of her be disabled jail, at the she took off Once bars, disability permanent.” Id. clothes, and made sexual This beat on the officers; police advances toward application After the SSA denied and had claustrophobic she was screamed reconsideration, initially and on SSI police Id. at 174. The then to be let out. eventually hearing Fires obtained a before her to where she was re- referred CSU 14, ALJ, February which was held on unit on an indi- admitted to the residential hearing, along testified at the 2006. She contract. gent (VE). Waits, expert with Ken a vocational CSU, hearing, At the she amended her onset her GAF score On re-admission 25, February May January date from 1980 to to 10.4 Id. at 239. On was down initially appli- filed her discharged from CSU and the date she cation benefits. Hospital to the Arkansas State for SSI admitted forty-five day involuntary commit- on hearing At Pate-Fires testified she Id. at 174. At the time ment court order. was divorced her husband discharge, of her CSU staff assessed restraining against obtained several orders noted she contin- GAF score to be 38 and Further, she indicated her. *6 behaviors, and ued to “exhibit some manic custody of her husband was awarded their at thoughts.” to voice delusional Id. 331. two minor children. Id. at 355. She said May stopped taking Dr. Michelle Ransom she sometimes her medi- consequent- Human months and Department from the Arkansas cations several Services, ly Division of Mental Health Ser- became violent or irrational. Id. at 343. vices, grown daughter conducted a evaluation of has a and has lived She Pate-Fires. Dr. Ransom noted she “has alone since her divorce. Id. She testified her she cannot work due to the stress it causes degree insight some into illness manic, nature of her her. makes her which appreciates therapeutic the Stress medications, they psychotic. that causes her to Id. at though she states become drives; only occasionally after exacerbation. 345. She her help to stabilize her Mid-South, local She does reiterate that she does not feel sister takes her to the chronically facility, that needs to be on medi- mental health treatment and to she buy groceries. public housing in diag- cations.” Id. at 183. The doctor She lives bipolar stamps. nosed her with and as- and receives food Id. at 345-46. disorder rent, utilities, pays sessed her GAF score to be 30.5 Id. Her sister and the insurance on her car. Id. at 348. 7, 2005, shortly being On June after discharged Hospital, illegal from Arkansas State Pate-Fires testified she last used Erby May in prog- drugs Pate-Fires met with Dr. 2005 when she was admitted 4. A GAF of 1 to 10 indicates the individual lusions or hallucinations” or the individual "[p]ersistent danger demonstrates a of severe- impairment in has a "serious communication ly hurting self or others.” DSM-IV at 32. judgment inability ... or to function [an] in almost all areas.” DSM-IV at 32. 5. A GAF of to 30 indicates the individual’s considerably influenced de- "[b]ehavior past at work if she is limited to work in which Hospital. Id. 349. Arkansas State disorderly incidental interpersonal criminal record for contact is has a She conduct, terroristic trespassing, performed, complexity work the of tasks is epi- rote, criminal performed by with most of her learned and there are threatening, conjunction involved, with her occurring judgment and little sodes few variables her husband. Her sister required divorce from would supervision the be sim- police direct, one time when called the ple, and concrete. The VE re- recently went Id. at 350. She psychotic. sponded such an individual would be able depression where she through a severe past relevant all Now sleeping day night. all work as a stocker. Id. at 362. hardly sleep night at all. Id. at she can Applying five-step pro- evaluation 350-51. regulations, cess set out the SSA see 20 activities, daily Pate- Regarding 404.1520(a) 416.920(a), §§ C.F.R. & day watch- spends Fires testified she ALJ concluded Pate-Fires was not dis- Although get used to ing television. step, abled. Under the first the ALJ internet, everything turned on the she had found she had not engaged went to Little Rock. She off when she gainful activity since her onset date. The enough play long could not concentrate (under two) step ALJ next found she suf- Her games computer. on her disorder, fered from schizoaffective chronic Id. at clean her house for her. sisters abuse, degenerative and lumbar substance concentrate or She likes to read but cannot disease, impairments” disc all “severe un- focus to retain what she reads. (the Act). Security der the Social Act Un- step, the third found der limitations, Regarding her work impairments” “severe did not meet or explained difficulty standing she has Fires equal severity any impair- the level of walking because of two herniated P, Appendix Subpart ment 1 to listed discs, sitting. has no trouble She can but Regulations No. 4. twenty pounds. lift Id. at 353. The about *7 get along can with are her only people she step sequential The fourth of the evalua- people. avoids other She sisters. She whether the requires tion determination only they can directions if said she follow perform past claimant can her relevant simple, are and told the ALJ she short step, work. Under this the ALJ deter- difficulty understanding him when he had mined Pate-Fires retains the residual long.” Id. “draws his statements out too (RFC) perform function un- call her to at 353-54. Her sister has to interpersonal skilled medium work where everything. Id. at remind her of 354. She contact is no more than incidental to work to call to remind her to take her used her performed; complexity of tasks is learned night, got- but now she has medications performed by rote with few variables taking ten in the them herself. habit judgment; supervision and little cries, down and 355. She breaks direct, simple, and concrete. Based on reliable. Id. She cannot handle and is not testimony this determination and the RFC the being public. got Since she out of VE, concluded of the the ALJ Pate-Fires time, go hospital the last she cannot even perform past her rele- has the grocery store. stocker. vant work as retail store Con- sequently, an indi- the ALJ found she was not The ALJ asked the VE whether education, the Act. meaning disabled within the age, vidual with Pate-Fires’s that Record at 25. past perform relevant work could Thereafter, de- An individual must be disabled order Appeals the SSA Council under the Act and the qualify SSI request for review of the nied Pate-Fires’s regulations. Disability is accompanying decision, making the ALJ’s decision ALJ’s inability engage defined as the “to the final decision of the Commissioner gainful activity by reason of § 405(g). under 42 U.S.C. the SSA any medically physical or determinable in the district complaint Fires then filed a impairment expected which can be mental Arkansas, for the Eastern District of court or which has lasted or to result death judicial of the ALJ’s deci- seeking review expected can be to last for a continuous § 405(g). pursuant sion to U.S.C. than period of not less twelve months.” court, Pate- appeal to the district 1382c(a)(3)(A). five-step § A test is U.S.C. decision was erro- argued Fires used to determine whether an individual (1) give the ALJ failed to neous because: 416.920(a)(4). § qualifies for SSI. 20 C.F.R. great or treating physician’s opinion her Steps through require three the claim- one (2) controlling weight; and the ALJ incor- (1) prove currently engag- ant to is not she rectly maintained the RFC concluded she (2) ing gainful activity, in substantial The perform past her relevant work. (3) impairment, suffers from severe disagreed, finding district court “extensive disability equals meets or a listed im supporting evidence and substantial See, Astrue, pairment. v. e.g., Van Vickle Addendum at 21. On ALJ’s decision.” Cir.2008). 539 F.3d September the district court en- If a claimant does not suffer from a affirming tered an order the ALJ’s deci- equivalent, listed or its denying sion Pate-Fires SSI benefits. analysis proceeds steps four and five. timely appealed to this court. Step requires four the ALJ to consider whether the claimant retains the RFC II past relevant work. The claimant bears the burden of demonstrat “This court reviews de novo a ing inability past to return to her rele security district court’s denial of social Astrue, vant work. v. 524 F.3d Steed Barnhart, F.3d benefits.” Maresh (8th Cir.2008). 875 n. 3 If the deter (8th Cir.2006). The court’s task pri- mines the claimant cannot resume to determine whether ALJ’s decision occupation, shifts to the burden “complies legal require the relevant step Commissioner at five to show the supported by ments and is substantial evi *8 capable performing claimant is of other dence in the record as a whole.” Ford v. work. Id. (8th Cir.2008). Astrue, 979, 518 F.3d 981 pre than a appeal, challenges “Substantial evidence is ‘less Pate-Fires the ponderance, enough that a but is reason ALJ’s determination she has the RFC to adequate sup entry-level mind it able would find unskilled work ” port interpersonal the Commissioner’s conclusion.’ which contact is no more Maresh, (quoting than performed 438 F.3d 898 McKin incidental to the work and (8th 860, ney Apfel, complexity v. 228 F.3d 863 Cir. the of tasks is learned and 2000)). record, by In reviewing performed the the court rote with few variables and sup judgment supervision “must consider both evidence that little and the is sim- direct, concrete, ports ple, including and evidence that detracts from the past Commissioner’s decision.” Nicola v. As relevant work as a stocker at a retail Cir.2007). true, (8th (1) 480 F.3d argues: 886 store. She the ALJ’s decision compliant Erby, of Dr. she was with recommended disregard opinion the treatment, by supported is not were inconsistent with Dr. treating psychiatrist, 27, 2004, February based on a mis- Erby’s evidence and is evaluation. (2) law; in a Specifically, of the ALJ noted June application subjective complaints 2005, of determination evaluation Pate-Fires’s mental supported status, is not entirely Erby not credible Dr. concluded her “schizoaf- were by substantial evidence. with fective disorder remission [was] management therapy medication and her security regulations require Social 10 (citing GAF was listed as 56.” Add. at “controlling weight” give ALJ to 230). Erby R. at Dr. did note Pate- While the issue treating physician on opinion of disorder was in re- Fires’s schizoaffective severity of a claimant’s the nature and of mission, his treatment notes from this opinion well-sup- if “is that evaluation do not indicate he believed she medically acceptable clinical and by ported work, sufficiently to return to stable techniques and is not laboratory diagnostic if compliant even with recom- the other substantial evi- with inconsistent mended treatment and medication. In- case record.” claimant’s] dence [the deed, 7, 2005, in his notes on his June 404.1527(d)(2). § C.F.R. evaluation, Erby again expressed Dr. his Erby’s concluded Dr. The ALJ “appears Pate-Fires to be opinion disabled any controlling not entitled to opinion was any type employment” perma- on a (1) it failed to address weight because: nent basis. R. at 229. history of substance long non-compliance with recom abuse and Additionally, Erby’s the ALJ noted Dr. treatment; mended medications February opinion was inconsis- evidence, (2) it was contradicted other opinion tent June consult- of Dr. DeRoeck and notably opinion DeRoeck, specifically Dr. ing psychiatrist him opinions Erby of Dr. the more recent lack opinion Dr. DeRoeck’s self. could not work and the conclusion Pate- record, had a GAF of 58. The how- Fires
First,
rejected
Erby’s opin-
Dr.
the ALJ
ever,
inconsistency
shows there is no
be-
opinion
ion
on the ALJ’s own
based
Erby’s
and Dr. DeR-
opinion
tween
“history
long
Fires had a
of substance
First,
2004 assessment.
oeck’s June
non-compliance
with recom-
abuse
DeRoeck was not asked to assess Pate-
and treatment....”
mended medications
work; thus,
Fires’s
his silence on
improper
opinion (cid:127) engage in work- 7, claimant was unable 2005—GAF 56 June sub- did not constitute related activities (cid:127) 6, September 2005—GAF 54 find- ALJ’s supporting stantial evidence history indicates The total GAF score never psychiatrist that ings where only out of Pate-Fires was above 50 four about that express opinion asked six-year period. in a twenty-one times psychiatrist especially issue and where The failed to discuss or consider the engage the claimant could did not state 50, including many GAF scores below not dis- employment full-time and did history as low as 10 and 20. The of scores treatment). him from charge below, scores at 50 or taken as GAF whole, “[s]erious indicate Pate-Fires has Second, concluded the fact Dr. DeRoeck symptoms ... or serious of 58 in June 2004 Pate-Fires had GAF social, occupational or school function- Erby’s opinion with Dr. is not inconsistent 32; ing. Brueg ...” DSM-IV at see also any type permanently disabled for Barnhart, 689, gemann v. 348 F.3d 695 nor it constitute sub- employment, does (8th Cir.2003) 50 (noting a GAF score of supporting stantial evidence reflects a serious limitation on a claimant’s she is not disabled. See Colon conclusion tasks; ability basic life VE Barnhart, 805, F.Supp.2d 424 813-14 (E.D.Pa.2006) testified that an individual with a GAF (indicating an ALJ must work); score of 50 could not Cruse v. U.S. his- consider a claimant’s total GAF score Hurgan Serv’s., Dep’t. Health & 49 F.3d tory, remanding the case for reconsid- (10th Cir.1995) 614, (holding 618 ALJ’s or eration where ALJ failed consider scores). that claimant was not disabled conclusion discuss a claimant’s lowest supported by was not evidence following The GAF record reveals misinterpreted ignored where ALJ scores for Pate-Fires: ratings claimant’s assessment (cid:127) 30,1999 January 40 —GAF indicating claimant had marked mental im- (cid:127) 11, December 2002—GAF pairment, substantially impair which could (cid:127) 15, December 2002—GAF 45 work); ability his Golubchick v. Barn (cid:127) hart, CV-03-3362, 10, 1790188, July No. 2003—GAF WL (E.D.N.Y. 2004) 9, Aug. (emphasizing at *7 (cid:127) 30, December 2003—GAF 31 testimony expert’s medical that a GAF (cid:127) 30, January 2004—GAF 51 generally incompatible score below 50 is (cid:127) 4, February 2004—GAF 50 work); with the Mook v. Barn (cid:127) 6, April 2004—GAF 54 hart, 02-2347, 955327, No. 2004 WL at *6 (cid:127) 9, June 2004—GAF 58 (D.Kan. 2004) 26, April (noting a VE’s (cid:127) 3, April 2005—GAF 40 testimony that a claimant’s GAF score of jobs in any possible 50 would eliminate (cid:127) 4, April 2005—GAF economy). national (cid:127) 4, April 2005—GAF 36 Notwithstanding Pate-Fires’s one GAF (cid:127) 4, April 2005—GAF 58, actually supports score of the record (cid:127) April 2005—GAF 50 Erby’s capable assessment she “is not (cid:127) April 2005—GAF 45 participating gainful employment.” (cid:127) April 2005—GAF 50 illness, Due to her mental Pate-Fire’s has (cid:127) April 2005—GAF “extremely poor insight resulting poor *10 (cid:127) 2,May compliance;” “potentially 2005—GAF 40 medication she is
945 and, others;” accepted ‘justifiable’ as generally stress toler- be dangerous “[h]er therefore, low;” stay preclude such ‘failure’would not quite “[h]er ance is ” ‘disability’ im- .... finding minor tasks is a of SSR 82-59. with even focused ability to interact with Although and none of the listed circumstances “[h]er paired;” illness, instructions is pertain and to follow to mental federal courts supervisors Thus, to the extent recognized mentally person’s R. at 125. ill impaired.” have of assessment disregarded noncompliance it with medi- Erb/s limitations, the ALJ’s be, is, work usually can cations “result by supported not determination is and, RFC mental [the] [itself] in the record. See therefore, substantial evidence jus- neither willful nor without a Barnhart, Fed.Appx. Berryhill v. 64 Chater, tifiable excuse.” Mendez v. 943 Cir.2003) (concluding (E.D.Pa.1996) ALJ’s 199-200 F.Supp. (citing 508 bipolar to claimant with Bowen, denial of benefits F.Supp. Sharp stress disorders was post-traumatic (W.D.Pa.1989)); see also Frankhauser v. by substantial evidence supported not Barnhart, F.Supp.2d 277-78 treating phy not consider (W.D.N.Y.2005) where ALJ did (holding an ALJ must take by supported which was opinion, sician’s mentally ill (bipolar into account whether evidence, psy did not discuss disordered) personality claimant’s fail- conclusions, technique chiatric review comply prescribed ure to with treatment contrary claimant’s GAF did not discuss itself); from the mental illness results scores). Apfel, F.Supp.2d Brashears v. 648 650- (W.D.La.1999) (remanding case for con- also concluded Pate- The ALJ of whether the claimant’s non- sideration regular, frequent failure to seek Fires’s prescribed with treatment compliance the medical and failure follow treatment impairment). excusable due to a mental by treating treatment recommended decision, Throughout its refer- significantly undermined her cred sources in the record in which ALJ, enced instances According ibility. Add. Pate-Fires had indicated her understand- treatment the evidence indicated limited comply ing of the need her medi- usage were effective in and medication requirements support cation his conclu- they controlling symptoms severe when good did not have a reason for her sion she occur, Pate-Fires failed to remain did but noncompliance. medical But the ALJ compliant with her medications and treat critical failed to make the distinction be- Pate- ment. Id. at 9. The ALJ concluded tween Pate-Fires’s awareness of the need controlled impairments Fires’s could be question and the to take her medication treatment, and therefore her medication noncompliance with her medi- whether her precluded a compliant failure to remain medically-determinable symp- cation was a disability. finding she suffered from tom of her mental illness. the ALJ’s determina argues tion, issue, analysis of as well as his considering good whether a rea- Courts misunderstanding alarming “an evince failure supports comply son a claimant’s psychotic mental dis severe affective recognized have prescribed treatment supported by substan orders” and are not psychological and emotional difficulties tial evidence in the record. rationality a claimant of “the may deprive to continue treatment or to decide whether Security Ruling 82-59 lists
Social See, e.g., Sec’y Zeitz v. “an individual’s medication.” circumstances under which Servs., F.Supp. Health and Human prescribed follow treatment will failure to *11 (D.Mass.1989) lengthy history noncompliance a (recognizing claim- has anxi- psychosomatic a medication. She has had recent fami- agoraphobia, ant’s disorder, “may defy any gener- conflict, ly manic behavior and homicidal ety-related the requiring treatment ally prescribed insight.”6 has limited Id. . threats. She recover,” individual claimant in- Similarly, will of the the treatment notes for her pre- failure to follow that claimant’s voluntary stay at ASH from December such treatment, including taking pre- 30, 2004, scribed through January note attending group medications and scribed poor by as evidenced medi- “[j]udgment sessions, claimant did not render therapy noncompliance” “[i]nsight cation and her benefits); ineligible disability see also by feeling not as if she poor as evidenced 97CIV.7697, Apfel, No. Thompson v. hospital to be at the for treatment.” needs (S.D.N.Y. 1998) Oct.9, 720676, at *6 WL failing ALJ erred in to consider (holding Further, in his notes from examina- his psychological and emo- whether claimant’s 9, 2004, tion on June Dr. DeRoeck conclud- deprived tional difficulties claimant of the “poor judgment evidences ed Pate-Fires rationality to decide whether to continue descriptive ability regard and limited medication). Thus, or while treatment alluding to her discontinued medication— sup- may there be substantial evidence only liking the side pressed when to ‘not port finding Pate-Fires knew ” And, April Id. at effects.’ medication, she needed to take her this when Pate-Fires was admitted to the the relevant evidence does not resolve CSU, stopped taking she indicated she her failure or even question here: whether ap- medication sometime after her last prescribed refusal to treatment follow Erby pointment with October of a was manifestation her schizoaffective 2004 because “I don’t feel like I need In bipolar regard, or disorder. this there Following them.” Id. at 325. her admis- evidence, i.e., is no medical a discussion sion, Erby evaluated Pate-Fires and professional, a doctor or other which indi- opined judgment insight were noncompliance cates Pate-Fires’s “[significantly impaired;” suffer- something time a result of other than was delusions;” ing “[v]ague paranoid from her mental illness. guarded; her intentions about others was contrary, To the the evidence over- “[i]nappropriate and she exhibited affect.”
whelmingly demonstrates noncompliance was to her attributable sum, In ALJ’s conclusion Pate- mental illness. On December jus- Tennessee, noncompliance Fires’s medical was not was admitted to the State of precludes finding disability tifiable and Western Mental Health Institute on an supported by is not substantial evidence. emergency According basis. R. at 154. Further, summary of her examina- the ALJ’s determination Pate- tion, noncompliance Fires’s medical is attribut- complete Pate-Fires “was denial of judgment poor.... solely illness and able to free will is tantamount to the [She] (MSE) gories way physical 6. A mental status examination is a in a similar to a exami- process working medical where a clinician performed by physicians. Insight nation is a (usually psy- in the field of mental health category commonly during considered worker, chotherapist, psychiatrist, psy- social understanding MSE to describe the level of psychologist) systematically chiatric nurse or person has own awareness of his/her patient’s examines a mind. Each area of psychological functioning or disturbance. separately function is considered under cate-
947 doctor,” “playing practice uniformly forbidden indicates Pate-Fires suffers See, Chafer, e.g., law. Rohan v. 98 F.3d from a severe mental impairment and can- (7th Cir.1996) (“ALJs 966 must not. expected suc- not be engage to gainful temptation play cumb to the doctor employment. independent
make their own medical find- Ill
ings.”). record, After careful of Heckler, As the court Benedict v. 593 having given due deference to (E.D.N.Y.1984), F.Supp. 755 admonished: findings, we see no prolong reason to this truly who paranoid Someone or who is case. Reversal and remand for an imme hallucinating, may someone who well be- diate award of benefits is appropriate lieve that doctors “are out to get him” remedy where the record overwhelmingly good for no reason is unlikely accept supports finding of disability. Taylor v. prescribed treatment by doctors. To Chafer, (8th 118 F.3d Cir.1997); deny person reason, this benefits for this Heckler, see also Parsons v. 739 F.2d because he is not acting under a “rea- Cir.1984) (“Where further sonable fear” mocks the idea of disabili- hearings would merely delay receipt of ty based on mental impairments. benefits, an order granting benefits ap Here, propriate.”). weight the clear of the long history Pate-Fires has a of mental fully evidence supports a determination disorders as well as alcohol and drug prob- Pate-Fires is disabled within meaning lems, hospitalized and has been on numer- of the Social Security Act and is entitled psychotic ous occasions for episodes. February 25, benefits as of 2004. Ac might While her medication help her con- cordingly, we reverse the judgment of the condition, trol her it does not alleviate the district court and remand this matter with possibility relapse. she will only psy- The instructions to remand the case to the chiatrist who addressed Pate-Fires’s Security Social Commissioner for an capacity, work-related treating physi- award of benefits. cian, Erby, perma- concluded she was SHEPHERD, Judge, Circuit concurring nently any type employ- disabled for of in part dissenting in part. ment. Neither Dr. DeRoecke nor Dr. provided opinions Ransom regarding I respectfully dissent majori- from the ty’s work on a sustained conclusion that remand for an immedi- Moreover, basis. the administrative rec- ate award of benefits is the appropriate subject ord shows she is psy- remedy erratic in this case. At step four of the breakdowns, chotic and her sequential GAF scores process, evaluation the ALJ de- demonstrate she suffers from moderate to cided that Pate-Fires retained the residual complete in work-related functional her past activities, daily skills. Her minimal con- relevant work. Ante at 942. The majority sisting TV, primarily watching are con- finds that the ALJ reached step-four this sistent with chronic mental disability. See conclusion in error. Specifically, the ALJ Hutsell, 259 F.3d at (finding that cook- improper relied on an reject basis to TV, ing, cleaning, watching shopping Erby’s opinion, and substantial evidence groceries are minimal daily activities support did not the ALJ’s conclusion that consistent with chronic disability) mental Pate-Fires’s medical noncompliance pre- (citing P, Subpt. C.F.R. Pt. 1App. cluded a finding disability. Id. at 12.00(E)). Thus, § the medical evidence 947. To the extent the majority’s decision or equalf] “meet[] must also pairments district judgment
to reverse the appendix ... and listings one of [the] these errors in the ALJ’s on court is based *13 requirement.” ] the duration meet[ I concur. step-four analysis, 404.1520(a)(4)(iii); § see C.F.R. also However, an immediate remand P, 404, Subpt. App. 1 Pt. C.F.R. an appropriate not award of benefits is 12.00(A) (“The listings are so construct- § step four of the se- remedy for errors impairment(s) an an ed that individual with severity Because substantial quential equivalent evaluation. that meets isor not listing a could reason- step- the criteria of support not ALJ’s evidence does gainful ably be to do activi- expected that had the four Pate-Fires conclusion three, ty.”). At the ALJ found that step capacity residual functional “medically determinable im- Pate-Fires’s work, past proceed the ALJ must relevant medically pairments equal meet or do not ultimately he can decide step five before (Admin. impairments.” one of the listed Pate-Fires is disabled. See whether 24); ante at 942. R. accord (“If you 404.1520(g) § we find that C.F.R. that majority If the believes your past relevant work because cannot do support step- evidence does not you impairment(s) a ... we have severe conclusion, they identify should three the same residual functional will consider impairment(s) Pate-Fires’s which listed ... together assessment equals. condition or See C.F.R. meets ... if your factors vocational determine 1520(a)(4)(iii)(only you § have im- an “[i]f adjustment you to other can make equals pairments) that meets one you adjustment can make an work.... If you that listings our ... will find are [we] work, you find we will not dis- other disabled”); 20 C.F.R. Pt. see also cannot, you you we will find abled. If (“We 12.00(A) P, §1 will Subpt. App. find disabled.”). erroneously ALJ re- The you impairment that have a listed if the four, at step solved Pate-Fires’s claim and diagnostic introductory in the description he whether could considered never impairment] paragraph the listed [of (See adjustment to other make an work. A B paragraphs the criteria of both 24-25.) Therefore, I Admin. R. at would (or C, A and when of the appropriate) proceedings remand further so that the satisfied.”). listed are Disor- step ALJ on to of the se- can move five of the in section 1.04. spine ders are listed quential evaluation. P, Subpt. App. See 20 C.F.R. Pt. § 1.04. Mental disorders are divided into majority believes an immediate The diagnostic categories nine listed appropriate award of benefits is because 12.10, through including sections 12.01 “the uniformly medical evidence indicates other “schizophrenic, paranoid psy- mental suffers from severe (12.03)” chotic disorders “substance expected impairment and cannot be to en- (12.09).” addiction disorders gage any gainful employment.” Ante at 12.00(A). majority § Although the cites sequential stepAt two of evalua- 12.00(E), section which is entitled “Chronic tion, agreed that the ALJ 12.00(E) mental section impairments,” disorder, “schizoaffective chronic sub- impairment; it actually not a listed abuse, and lumbar degenerative stance merely para- instructional preliminary impairments. disc were “severe” disease” that, evaluating cases graph warning accord, (Admin. 16); R. at at 941-42. ante where claimants have structured their However, severity enough alone is not minimize way lives “in as to [their] such symptoms ... finding disability; im- stress and reduce [their] warrant a severe a single may results of examination [t]he adequately describe sustained [their]
not 12.00(E). §
ability to function.” Id.
Further, if majority believes the three, step erred at then there is no
need for their extensive discussion of er- assessing
rors the ALJ made in capacity,
Fires’s residual functional ante at
942-47,
only
steps
which is
relevant at
four
five,
Yuckert,
See Bowen v.
482 U.S.
107 S.Ct.
(1987) (“If equals meets or impairments,
one of the listed the claimant conclusively presumed disabled.”); to be 404.1520(e) (“If § your impair-
20 C.F.R.
ments) equal does not meet or a listed
impairment, we will assess and [then] finding your
make a about residual func- Thus, capacity....”).
tional to the extent majority believes that the ALJ erred step sequential three of the evaluation and, belief,
process based on that remands benefits,
for an immediate award of I re-
spectfully disagree. America,
UNITED STATES of
Appellee, CLARKE, Appellant.
Pamela
No. 08-2778.
United Appeals, States Court of
Eighth Circuit.
Submitted: Feb. 8,May
Filed:
Rehearing Rehearing En Banc July
Denied 2009.* * Judge particiapte Gruender did not in the con- sideration or decision of this matter.