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Gilbert v. Commissioner of Social Security

United States District Court, N.D. Iowa, Eastern Division

September 4, 2019

SUSAN A. GILBERT, Plaintiff,


          Kelly K. E. Mahoney Chief United States Magistrate Judge

         Plaintiff Susan A. Gilbert seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her application for disability insurance (DI) benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Gilbert argues that the administrative law judge (ALJ), Matthew J. Gordon, erred in determining her residual functional capacity (RFC). Specifically, Gilbert argues that the ALJ discounted her treating psychiatrist's RFC opinion without providing a good reason; that the ALJ failed to acknowledge or assign weight to her therapist's RFC opinion; and that some medical evidence does not support the ALJ's failure to include a limitation to one- and two-step tasks. Gilbert also raises (for the first time) an Appointments Clause challenge in reliance on Lucia v. SEC, 138 S.Ct. 2044 (2018). I recommend affirming the ALJ's decision.

         I. BACKGROUND[1]

         During the summer before her senior year of high school, in 2002, Gilbert was in a serious car accident that resulted in a concussion and a lasting brain injury. AR 13, 270.[2] She was able to complete high school, although she failed some classes, and as a result, she did not graduate a semester early as she had planned. AR 270. After high school, she maintained full-time employment through March 2014, married, and gave birth to a daughter around September 2012. AR 214-19.

         Beginning in March 2013, Gilbert found work through a temporary-employment agency in a data-entry position. AR 214-15, 350, 352. The company declined to hire her permanently because she did not have a degree, and she was laid off in June 2013. AR 214, 350, 352. She enrolled in classes at the local community college in the accounting program and found work at a nursing home by August 2013. AR 218, 278, 348. Originally, she worked as a van driver, coordinating schedules and transporting nursing-home patients to their appointments, but she did not get along well with her boss and was written up for forgetting appointments. AR 344, 348, 436. She also had difficulties balancing being a full-time student while working full time, achieving only a 1.4 grade point average (GPA) for the fall 2013 semester (even after she dropped a class), so she switched from accounting to the early childhood development program for the spring 2014 semester. AR 278, 344, 348. She continued to struggle, suffering a panic attack at work when she had to stay late and miss class, and by early March 2014, she reported failing several classes (despite dropping a class again to reduce her course load). AR 278, 336, 344. When she sustained a shoulder injury, she was transferred to working in laundry, and the nursing home decided that given “her problems with organization, focus, [and] concentration, ” she could not return to the van-driving position for safety reasons. AR 338, 342. She worked as a housekeeper for about a month at the nursing home before suffering a panic attack (triggered by discovering a patient's cancer had spread) on March 7, 2014. AR 332. She initially planned to resign, but the nursing home allowed her to take medical leave. AR 332, 334. She never returned to working at the nursing home. AR 218. Instead, sometime in April 2014, she began working part-time at her daughter's daycare as an assistant in the kitchen to receive a discount on her daughter's childcare costs. AR 216, 364, 547, 568.

         On April 7, 2014, the community college placed Gilbert on academic probation, advising that she reduce her work hours and receive help from Academic Support. AR 282. Gilbert's grades improved during her next two years of school, when she no longer worked full time and she received accommodations, including receiving copies of teachers' and students' notes, having the option to take short breaks, and taking tests in a quiet testing center with extra time. AR 276-78. She graduated in May 2016. AR 694. She worked limited hours at the daycare through the spring of 2015, until her hours were cut for budgetary reasons and she was unavailable during the time needed. AR 214, 216, 264, 477, 547, 568. She did not work again until November 2016, when she started working fifteen hours a week as a kitchen assistant and lunch server at the local elementary school (although she had applied and interviewed for daycare positions after graduating from the early childhood and development program at the community college). AR 59-60, 687. She quit in April 2017, which she testified (in July 2017) was because her performance was inhibited by her mental-health issues and she was on the brink of getting fired, but she told her psychiatrist at the time that she quit to open her own in-home daycare. AR 59-63, 656, 658, 663, 819.

         In November 2014 (before she graduated from community college, and while working part-time at the daycare), Gilbert applied for DI benefits, alleging a disability onset date of March 8, 2014 (when she stopped working full time). AR 87-88. Her application was denied initially in August 2015 and on reconsideration in November 2015. AR 87-115. In connection with those reviews, state agency psychological consultants Jonathan Brandon, PhD, and Dee Wright, PhD, reviewed treatment records and information provided by Gilbert to evaluate her RFC.[3] AR 94-97, 109-112. In forming their opinions, they also considered and discussed a February 2015 neuropsychological examination by Richard Roberts, PhD, performed at the request of Gilbert's primary care provider (AR 427-33); a March 2015 RFC opinion submitted by Gilbert's therapist, Adarienne Burrow, MA, LMHC, NCC (Therapist Burrow), who worked at the student health clinic at Gilbert's community college (AR 440-42); and the results of a June 2015 consultative examination ordered by the Social Security Administration and performed by Carroll Roland, PhD (AR 517-22). See AR 96-97, 111.

         Gilbert requested a hearing before an ALJ, who held a video hearing on July 25, 2017. AR 10, 38-39. Gilbert and a vocational expert (VE) testified at the hearing. AR 38-39. On October 4, 2017, the ALJ issued a written opinion denying Gilbert's request for benefits, following the familiar five-step process outlined in the regulations[4] for determining whether Gilbert was disabled. AR 10-23. The ALJ found that Gilbert's part-time work did not rise to the level of substantial gainful activity and did not preclude her from obtaining benefits. AR 12. The ALJ found that Gilbert suffered from several severe mental-health impairments, including generalized anxiety disorder, attention deficit hyperactivity disorder (ADHD), and cognitive dysfunction from a traumatic brain injury. AR 13. To determine whether Gilbert could still work despite her impairments (at steps four and five), the ALJ determined Gilbert's RFC as follows:

[T]he claimant has the [RFC] to perform a full range of work at all exertional levels but with the following nonexertional limitations: she must avoid hazards such as unprotected heights and dangerous machinery; she may perform low stress work, defined as: simple, routine tasks, with simple work related decision and few if any changes in work setting, and no production rate pace work (i.e. no assembly line work); she is limited to a moderate noise level environment; also no operation of a motor vehicle to carry out job duties; she may have occasional contact with supervisors, coworkers, but no tandem work, it would not be necessary to work with others to carry out job duties; no work with the public.

         AR 15.[5] In forming this RFC, the ALJ assigned “great weight” to the results of Dr. Roberts's neurocognitive testing, partial weight to Dr. Roland's consultative-examination opinion, partial weight to Dr. Brandon's and Dr. Wright's nonexamining opinions, and little weight to the June 2017 RFC opinion by Gilbert's treating psychiatrist, Ann Rathe, MD (AR 908-913). See AR 18-20. The ALJ did not cite or discuss Therapist Burrow's opinion. Based on his determination of Gilbert's RFC and the testimony of the VE, the ALJ found that Gilbert could not perform any past relevant work but that “there are jobs that exist in significant numbers in the national economy that the claimant can perform.” AR 21. Specifically, the ALJ found that Gilbert could work as a janitor, hospital cleaner, or laundry worker. AR 22. The ALJ concluded that Gilbert was not disabled during the relevant time period of March 8, 2014, to October 4, 2017. AR 22-23.

         The Appeals Council denied Gilbert's request for review on May 9, 2018 (AR 1-3), making the ALJ's decision that Gilbert was not disabled the final decision of the Commissioner. See 20 C.F.R. § 404.981. Gilbert filed a timely complaint in this court (Doc. 1). See 20 C.F.R. § 422.210(c). The parties briefed the issues (Docs. 10-12), and the Honorable Leonard T. Strand, Chief United States District Judge for the Northern District of Iowa, referred this case to me for a Report and Recommendation.


         A court must affirm the ALJ's decision if it “is supported by substantial evidence in the record as a whole.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007); see also 42 U.S.C. § 405(g). “Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision.” Kirby, 500 F.3d at 707. The court “do[es] not reweigh the evidence or review the factual record de novo.” Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994). If, after reviewing the evidence, “it is possible to draw two inconsistent positions from the evidence and one of those positions represents the [ALJ's] findings, [the court] must affirm the decision.” Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992).

         Gilbert argues that the ALJ erred in determining her RFC because the ALJ did not give a good reason for discounting her treating psychiatrist's RFC opinion or acknowledge her therapist's RFC opinion. Gilbert also argues that all the medical opinions support a limitation to work involving only one- to two-step tasks, and the ALJ erred by failing to include such a limitation in his RFC determination. Finally, Gilbert argues that the ALJ's appointment to that position violates the Appointments Clause of the United States Constitution.

         A. Weight to Treating-Source Opinion

         When determining a claimant's RFC, the ALJ considers medical opinions “together with the rest of the relevant evidence.” 20 C.F.R. § 404.1527(b). “The ALJ must give ‘controlling weight' to a treating [source's] opinion if it ‘is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence.'” Papesh v. Colvin, 786 F.3d 1126, 1132 (8th Cir. 2015) (quoting Wagner v. Astrue, 499 F.3d 842, 848-49 (8th Cir. 2007)); see also 20 C.F.R. §§ 404.1527(c)(2). “Whether the ALJ gives the opinion of a treating [source] great or little weight, the ALJ must give good reasons for doing so.” Reece v. Colvin, 834 F.3d 904, 909 (8th Cir. 2016). The ALJ considers the following factors to determine the weight to assign any opinion assessing a claimant's RFC:

(1) whether the source has examined the claimant; (2) the length, nature, and extent of the treatment relationship and the frequency of examination; (3) the extent to which the relevant evidence, “particularly medical signs and laboratory findings, ” supports the opinion; (4) the extent to which the opinion is consistent with the record as a whole; (5) whether the opinion is related to the source's area of specialty; and (6) other factors “which tend to support or contradict the opinion.”

Owen v. Astrue, 551 F.3d 792, 800 (8th Cir. 2008) (quoting the current 20 C.F.R. § 404.1527(c)).

         Gilbert's treating psychiatrist, Dr. Rathe, opined that Gilbert suffered moderate limitations, defined as “preclud[ing] performance up to 20% of an 8 hour work day or 40 hour work week, ” in her ability to remember locations and work-like procedures; understand, remember, and carry out very short and simple instructions; perform activities within a schedule; and sustain ordinary routine without special supervision. AR 910-11. Dr. Rathe found Gilbert suffered marked limitations (precluding performance more than 20% of the time) in being punctual within customary tolerances; responding appropriately to changes in the work setting; and setting realistic goals or making plans independently of others. AR 910-12. Dr. Rathe found Gilbert extremely limited (defined as unable to function in a regular, reliable, and sustained schedule) in maintaining attention and concentration for extended periods of time and in maintaining regular attendance, opining that she would miss work more than three times a month. AR 910-11. She also found Gilbert extremely limited in her ability to work in coordination with or proximity to others without being distracted by them. AR 911. In evaluating Gilbert's ability to work “without interruptions from psychological based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, ” Dr. Rathe opined that Gilbert had marked limitations in her ability to complete a normal work day and extreme limitations in her ability to complete a normal work week. AR 911. Dr. Rathe noted only mild limitations in several categories of social interaction, including Gilbert's ability to get along with coworkers and peers without distracting them or exhibiting behavioral extremes; to interact appropriately with the public; to ask simple questions or request assistance; and to accept instructions and respond appropriately to criticism from supervisors; but Dr. Rathe noted moderate to extreme limitations (depending on the severity of Gilbert's depression) in Gilbert's ability to maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness. AR 911-12. Overall, Dr. Rathe opined that Gilbert suffered marked limitations in her activities of daily living and in maintaining social functioning and that she would frequently to constantly (depending on the severity of her depression) have deficiencies of concentration, persistence, or pace resulting in the failure to complete tasks in a timely manner. AR 912.

         The ALJ assigned little weight to Dr. Rathe's opinion, finding it inconsistent with Dr. Rathe's treatment records, the record as a whole, and Gilbert's activities of daily living, among other reasons. AR 20. Gilbert first met with Dr. Rathe in November 2014. AR 268. She sought help with her short-term memory loss (suffered as a result of a car accident in 2002) and with managing stress and emotions, noting that she did not expect Dr. Rathe to be able to “fix her brain” but wanted to know her deficits so that “she c[ould] work around them” and retain a job. Id. She reported being able to manage her medications with a daily calendar and schedule and that her concentration was “good” on Adderall, and Dr. Rathe's objective examination was normal. AR 269, 271. Dr. Rathe increased her Effexor dosage (an antidepressant) and continued her Adderall dosage. AR 271. About a month later, Gilbert presented to the emergency room (ER) and was admitted to the hospital for three days with racing thoughts and complaints of not being able to tell what was reality. AR 404-410. At an appointment with Dr. Rathe shortly after her discharge from the hospital, Gilbert reported that her mood was more even keel since starting risperdone and discontinuing Adderall at the hospital, and Dr. Rathe's objective examination was mostly normal. AR 528-29. Dr. Rathe's treatment notes also reflect that she provided written instructions to Gilbert regarding her medication changes. AR 529.

         Risperdone caused undesirable side effects, so Dr. Rathe prescribed olanzapine for Gilbert by telephone. AR 530. At Gilbert's next appointment with Dr. Rathe in late December 2014, Gilbert reported a low mood, and her husband (who accompanied her to the appointment) reported that she “sees stuff at home that she should be doing and gets overwhelmed that she can't do it.” Id. Gilbert stated that she would return to community college full-time in a few weeks (she was on winter break) and that the structure of school helped her. Id. Two weeks later, Gilbert reported that she had needed “reassurance and direction at times from” her husband while on winter break from school, sometimes having to ask her husband what she should be doing, but that she was able to focus at school “ok” even without Adderall. AR 532-33. Dr. Rathe restarted Gilbert on Adderall, and she called a few days later to report she was doing very well. AR 535. In early February 2015, she continued to complain of a depressed mood, stating that she was sleeping well but had low energy; and that she had a “lack of enthusiasm about things” and was “just going thr[ough] the motions.” Id. She reported trying to exercise more. Id. She stated Adderall “help[ed] her stay on task and concentrate” for class, but she had been missing doses, so Dr. Rathe suggested she set a phone alarm. Id. Her husband accompanied her to the appointment and reported that she was “more organized, ” “[h]er thoughts are more on topic[, ] and she's better able to keep track of what is supposed to happen when, ” but that she had no ambition. Id. Dr. Rathe adjusted Gilbert's medications to try to improve her depression. AR 536. At these appointments from late December 2014 to February 2015, Dr. Rathe's objective examinations were normal (including recent and remote memory) except for mood and affect. AR 531, 533, 535-36.

         At an appointment with Dr. Rathe in late February 2015, Gilbert and her husband reported she was doing better on new medication and Adderall, including being able to get chores done, although she was still somewhat distractible during tasks. AR 537. Dr. Rathe's objective examination was normal, and she continued Gilbert on her current medications. AR 538. At her next appointment with Dr. Rathe a month later, Gilbert reported doing poorly, and Dr. Rathe noted that Gilbert had called between appointments to restart Lorazepam because of situational anxiety and that she had called the day prior to report an increase in panic attacks triggered by her family's decision to foster two special-needs children. AR 540. Gilbert told Dr. Rathe that she had forgotten she had called to ask about taking Lorazepam, so she had not picked up her prescription, and she stated she had run out of Adderall a week ago. AR 540. Gilbert reported that her husband traveled for work so she had been caring for the children on her own until their bedtime, which was overwhelming; that she had missed two classes because of the lack of childcare for the foster children; and that she was able to do housework when the children were gone, but her house was in disarray, and she had been sleeping a lot. Id. Dr. Rathe noted a normal objective examination except for mood, affect, and hygiene. AR 541. Dr. Rathe added Lorazepam, and when Gilbert called a week later reporting that she continued to be tearful and anxious, Dr. Rathe increased the dosage of her antipsychotic medication. AR 543. Gilbert met with Dr. Rathe for an appointment a week after that, in early April 2015, in which she reported improved anxiety and denied problems with concentration, but noted continuing to suffer low energy and motivation (and was sleeping in the waiting room when Dr. Rathe retrieved her for their appointment). AR 543-44. Gilbert told Dr. Rathe that she had not been doing her chores regularly, playing with the kids as much, or washing her hair. AR 543. Dr. Rathe decreased the Lorazepam dosage, believing that caused Gilbert to be oversedated. AR 544. Gilbert called a few days later to report crying spells, and Dr. Rathe discontinued Lorazepam. AR 545; see also AR 459. At her next appointment with Dr. Rathe in late April 2015, Gilbert continued to report uncontrollable crying spells, although she noted they were less frequent since discontinuing Lorazepam. AR 545. Dr. Rathe noted that Gilbert was under stress and overwhelmed by her responsibilities caring for her daughter and foster children and being a full-time student, as well as recent abnormal lab results indicating diabetes. AR 545-46. Gilbert noted that school was going well and that Adderall helped her study for school, but it did not help her focus for child-care purposes. Id.

         Less than two weeks later, in early May 2015, Dr. Rathe met with Gilbert again after she called in tears requesting to be seen as soon as possible. AR 547. Gilbert reported suffering from crying spells and low motivation and energy, although she noted she was able to do basic housework and childcare (the foster children were in school, and her daughter went to daycare), and her concentration was good with Adderall. AR 547-48. She reported completing three out of four of her finals (with one remaining) and that she had lost her part-time daycare job, so she would not be able to afford her daughter's daycare costs anymore. Id. On objective examination, Dr. Rathe noted monotone speech, “depressed” mood, and constricted and tearful affect, but normal eye contact, memory, thought processes, judgment, and insight. AR 548. Dr. Rathe adjusted Gilbert's medications and advised her not to foster, as she believed the added stress was bad for her mental health. AR 547-48.

         A week and a half later, Gilbert again called in tears and asked to be placed on the cancellation list. AR 755, 906. At her appointment a few days later, she stated that the day she had called had been a “bad day, ” but that she had a good weekend spending time with her family. AR 755. She reported feeling good about her grades on her final exams and that she and her husband had decided to release the foster children to another home, which was “a light at the end of the tunnel.” AR 755. Dr. Rathe noted a normal objective examination except for mood and affect, including that Gilbert abruptly started crying during the interview. AR 756. Dr. Rathe changed Gilbert's medication due to side effects. Id. A week later, Gilbert called Dr. Rathe to say that she had forgotten about her scheduled appointment but that she was “feeling good” and wanted to cancel. AR 904.

         Gilbert's next appointment with Dr. Rathe was in mid-June 2015. She reported improvement with both her mood and tearfulness on her new medication (despite running out of the medication five days prior), although she still had low motivation for home activities and explained the day she canceled her previous appointment had been a “good day.” AR 752-53. She reported spending a lot of time with family, going out to eat for her wedding anniversary, and going to the zoo, activities which she “‘kind of' enjoyed” or “ended up having fun” doing. AR 752. She had not been to therapy since school ended for the summer, so Dr. Rathe instructed her to contact a therapist right away. AR 753. Dr. Rathe also increased the dosage of her antipsychotic medication. Id. In early July 2015, Gilbert reported that she had not been taking the increased dosage of medication because she had been sleeping well and did not feel depressed or anxious (although she reported feeling “sort of blah”). AR 750. She reported enjoying a week-long trip to Arkansas for a family reunion and that her mood was “pretty good” while away (although she did report tearfulness and anxiety one of the days because both sides of her family wanted to see her, but her husband did not think it was abnormal to be tearful in that setting). Id. Dr. Rathe noted a normal objective examination other than constricted affect and concluded Gilbert was “doing better following vacation and reduced stress at home, ” although Dr. Rathe still wanted to increase Gilbert's medication dosage because she “remain[ed] somewhat depressed.” AR 751.

         By mid-July 2015, Gilbert had become more depressed. AR 747. She cried in the lobby for twenty minutes prior to her appointment with Dr. Rathe, and she reported lacking purpose without a job or the structure of school and feeling like a drain on her family. AR 747. She noted her ability to do housework was limited by distractibility, low motivation, and tearfulness, and that despite sleeping soundly, she felt tired in the morning and unable to do chores (she stated if she performed chores, it was after lunch). Id. She had been taking her daughter to the pool but did not enjoy it. Id. Aside from a tearful affect and depressed mood, Dr. Rathe noted an otherwise normal objective examination and adjusted her medications. AR 748. Before her next appointment with Dr. Rathe, Gilbert called to ask for help finding a bipolar support group, and she called another time in tears wondering if Dr. Rathe would support her disability application and noting she was “unsure if she should be applying for” disability “as she d[id] not feel like she [wa]s disabled.” AR 902-03. In late July 2015, Gilbert continued to report a low mood and feeling unmotivated (including showering only once a week and accomplishing the “bare minimum” of housework), although she reported being less tearful and having “ok” concentration when cooking simple recipes. AR 745. Dr. Rathe noted Gilbert “does best when her schedule has structure and routine” and thought Gilbert would benefit from a part-time, low stress job, but she opined Gilbert was “too depressed right now to start a job” and increased Gilbert's medication dosage. AR 746. Despite the higher dosage of medication, Gilbert continued to report low motivation in mid-August 2015, although she stated she had been able to complete household chores such as dishes and laundry and that her concentration for simple tasks was “pretty good.” AR 740-42. She stated that she had hired cleaning help and that she had arranged to be around family members every day of the week, which cheered her up and eased her anxiety. AR 740. She expressed anxiety about her upcoming field experience for school. Id. Dr. Rathe noted Gilbert lacked motivation to shower. AR 742. Dr. Rathe decided to wait two weeks before adjusting her medication to see if her mental health improved any more on the increased dosage of antipsychotic medication. Id.

         The next month, in September 2015, Gilbert had started school, and her mental health had improved somewhat-she reported still suffering depression and low motivation, but her mood was “not quite as low, ” her energy was “a little better, ” and she was “less tearful overall.” AR 737, 739. She reported that school was “going pretty good” and that she could concentrate for thirty minutes when reading for school, but she sometimes had to reread passages and struggled to comprehend. AR 737. She noted she had gone to Chicago for a bachelorette party, but she had been anxious, and it had been hard to relax and have fun. Id. Dr. Rathe recommended she try a new bipolar medication. AR 739. For a few weeks, she noticed improvements on the new medication and felt more confident and motivated, but in early October 2015, she called Dr. Rathe feeling suicidal, noting that she had failed a college exam the week before and felt nervous about an upcoming exam. AR 733-35, 898. At an appointment with Dr. Rathe the next day, Dr. Rathe also noted that Gilbert's recently helping out at a family party may have resulted in fatigue that “set off a bout of mildly depressed mood and negative thinking.” AR 733. Gilbert also stated that her aunt had been helping her clean the house, but she had been unavailable the past two weeks, so the house ...

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