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Kenneth E. Joseph v. Carolyn W. Colvin

April 26, 2013


The opinion of the court was delivered by: John M. Gerrard United States District Judge


This matter is before the Court on the denial, initially and upon reconsideration, of plaintiff Kenneth E. Joseph's disability insurance benefits under Titles II and XVI of the Social Security Act ("SSA"), 42 U.S.C. §§ 401 et seq. and 1381 et seq. The Court has carefully considered the parties' filings and the administrative record. For the reasons discussed below, the Commissioner's decision will be affirmed.


This case involves two applications made under the SSA. On September 26, 2008, Joseph applied for disability insurance benefits under Title II, (T10, 134--42), and for supplemental security income benefits under Title XVI. T10, 131--33. Both claims were denied initially and on reconsideration. T62--63, 76--84. Following a hearing on September 20, 2010, the administrative law judge (ALJ) found that Joseph was not disabled as defined under 42 U.S.C. §§ 416(i), 423(d), or 1382c(a)(3)(A), and therefore not entitled to benefits under the SSA. T7--20. The ALJ determined that, although Joseph suffered from several severe impairments, and could no longer perform his past relevant work, he had the residual functional capacity to perform other jobs that existed in significant numbers in the national economy. T7--20.

On March 7, 2012, after reviewing additional evidence, the Appeals Council of the Social Security Administration denied Joseph's request for review. T1--4. Joseph's complaint seeks review of the ALJ's decision as the final decision of the Commissioner under sentence four of 42 U.S.C. § 405(g).

See § 1383(c)(3) (decisions of the Commissioner under Title XVI subject to judicial review as provided for in § 405(g)).


I. Medical and Psychiatric Records

Joseph alleges that he has been disabled as of July 23, 2008, primarily as a result of several mental impairments: depression, anxiety, and bipolar affective disorder (type 2). T31--32, 62--63 167, 217.*fn1 At the time of the administrative hearing in 2010, Joseph was 45 years old. T20, 131.

A. Pre-Onset Date Medical and Work History

Joseph has a long history of mental illness and alcohol abuse, which predates his amended onset date by decades. He has experienced depression since the age of 8, and has attempted suicide several times throughout his life. T276, 292. Between 2000 and 2002, Joseph was hospitalized for psychiatric issues on multiple occasions. T277, 292. He has a history of significant alcohol use since at least the mid-1990s and continuing through July 2008. T271, 376. Joseph stated that his mental illness first began to interfere with his ability to work in 1999. T167. Nonetheless, he attended college for 11/2 years in 2000 to 2001 (having previously obtained his GED), and from 2003 to 2008 he worked in a variety of positions. T34, 168.

From May 2003 to March 2006, Joseph worked full-time as a front-desk clerk at a hotel. T168, 178, 375. He was fired from this job because of his drinking. T523. From March to October 2006, he worked at the front desk of another hotel. T168. Joseph reported that he lost this job due to excessive absences caused by his mental illness. T160. From 2007 to 2008, he worked part-time for 5 months as a cashier at a drug store and then for 7 months at a food market. T168. And before that he worked for 2 months as a part-time busser/flyer distributor. T168. Joseph reported that he also lost each of these jobs because his mental illness caused him to miss too many days of work. T153--54, 160.

B. Medical Records: 2008 to 2010

In July 2008, Joseph began working for a traveling carnival. T276. After only 2 weeks, he injured his back, and was fired and abandoned at a truck stop in Iowa, leaving him homeless. T276, 278, 448. On July 23, he went to the emergency room because he was considering suicide. T276, 448. Joseph was eventually referred to the Lasting Hope Recovery Center, in Omaha, Nebraska, where he was hospitalized until August 6. T259, 271, 449. Upon admission, Joseph was diagnosed with depression and alcohol dependence, and given a global assessment of functioning ("GAF") score of 20 to 25.*fn2 T279--282. Joseph's condition gradually improved with medication, and his GAF score was raised to 29 on August 6. T273. At that time, he was also diagnosed with bipolar affective disorder (type 2). He was discharged in stable condition and referred to Lutheran Family Services (LFS) for outpatient therapy and psychiatric treatment. T274.

After leaving Lasting Hope, Joseph participated in the Salvation Army's Adult Rehabilitation Center (ARC) program, which provided him with housing. ARC was a "work intensive program" and Joseph worked 8 hours each day in the Salvation Army's shop, taking in clothes and performing similar tasks. T40. Joseph stayed with this program for about 2 months. T40-- 41, 298. He then found housing through a different Salvation Army program, which helped him obtain general assistance and an apartment, but did not require him to work. T41.

In August 2008, Joseph met for the first time with Licensed Independent Mental Health Practitioner (LIMHP) Ben Czyz, a therapist with LFS. T298. Czyz assessed Joseph's GAF at 47.*fn3 Thereafter, they began weekly therapy sessions. T303--08. On August 29, Dr. Sriram Ramaswamy, a psychiatrist with LFS, performed a psychiatric evaluation of Joseph. T292-- 93. Joseph described a strong history of anxiety, and reported that he had used alcohol for many years to self-medicate his depression. Since starting with the Salvation Army, however, he had maintained sobriety. T292. Joseph no longer reported thoughts of suicide. T293. Ramaswamy diagnosed him with major depression and alcohol dependence, and rated his GAF as 50. T293. Joseph attended his final therapy session with Czyz on November 7, 2008. T303. He reported that his depression had decreased, and Czyz agreed that Joseph's condition had improved. T303.

From the time Joseph's condition stabilized in late 2008, through the date of the hearing in 2010, Joseph has generally reported the following symptoms, which have fluctuated in severity: a lack of concentration, energy, and motivation; thoughts of failure; and feeling empty, helpless, and hopeless. He has also experienced sleeplessness and fatigue, racing thoughts, and occasional thoughts of suicide. T191, 217, 236, 273, 313, 370, 385, 387, 398--402, 410, 413, 420, 424, 426, 429, 432, 460, 479, 534, 545. Joseph claimed that being around people made him anxious and worsened his symptoms, and made it difficult for him to concentrate. T191, 236.

In November 2008, Joseph's treatment was transferred to the Douglas County Community Mental Health Center, where he began seeing Dan Brune, an advanced practice registered nurse (APRN). T313--18. At their initial appointment, Brune noted Joseph had poor energy and concentration, and a lack of motivation. T313. Brune diagnosed him with severe major depression disorder (with a rule-out of bipolar affective disorder), and alcohol dependence, and assessed his GAF at 48. T315. Brune referred Joseph to a day rehabilitation program with Community Alliance, which he was supposed to attend at least once every week. T196, 516, 519, 530, 546.

In December 2008, state medical consultant Lee Branham, Ph.D., completed two forms evaluating Joseph's depression and bipolar disorder. T326--30, 333--47. Branham concluded that Joseph suffered from a severe affective disorder which caused marked problems with motivation, attention, and concentration. However, Branham found that it was likely that, by July 2009, Joseph's condition would significantly improve, to the point that he would have only moderate limitations. T328. Shortly thereafter, a second state agency medical consultant, Leif Leaf, Ph.D., reviewed both of Branham's opinions and stated his agreement with them. T352, 355.

On December 23, 2008, Janette Bentley, PLMHP (Provisional Licensed Mental Health Practitioner), provided her impression of Joseph's condition. T196. Bentley was an "Assessment Specialist" with Community Alliance. Joseph had started the day program about 1 month earlier, but his attendance had been sporadic, so Bentley was only able to provide a brief assessment. She stated that Joseph was "at times" unable to attend the day program because of his anxiety and depression, and when he did attend, he had a hard time concentrating. Bentley also noted that Joseph's grooming and hygiene were poor, and that his body odor was very strong. T196. However, Joseph's condition soon improved.

At a therapy appointment with Brune on January 30, 2009, Joseph's dress, grooming, and speech were within normal limits. T358. Brune assessed a GAF score of 55.*fn4 T359. By the end of February, Brune believed Joseph's depression had moderately improved, but still listed his GAF as 55. T372--33.

In March 2009, Joseph provided a report of his daily activities and symptoms. T215. Joseph wrote that he had no hobbies, although he did study the Bible on a daily basis, and he went to church twice a week. T216, 222--23. Otherwise he generally spent most days watching television. T215, 223. Joseph was able to take care of his personal needs: he prepared simple meals, washed the dishes, and did his laundry. T215 He used the bus for transportation or would ask his pastor for a ride. Joseph bought his groceries at a store near his apartment. T216. However, he needed a payee to help manage his money. T216--17. Other than church, shopping, and his appointments, he did not leave his apartment. T222. He mostly kept himself isolated, and had no friends except those at church. T222. Joseph's symptoms generally remained the same as described above, but going to church and reading helped. T217, 224.

On March 25, 2009, state medical consultant Linda Schmechel, Ph.D., completed a psychiatric evaluation form. T361. Like Branham, she found that while Joseph had a severe mental impairment, it was not expected to last 12 months. T361.

In May 2009, Joseph reported to Brune that his depression was worse and he was anxious about his claim for disability benefits. T370. Despite this, he was attending church more often and going to the day program three times a week. Brune noted that Joseph was taking his medications, and that they were moderately effective in controlling his depression and anxiety. T370--71. Brune raised Joseph's GAF to 55--58. T371. In July, Joseph again reported worse symptoms, and Brune adjusted his GAF to 50--55. T390. However, Joseph denied feeling helpless or worthless, and his housing and activities of daily living remained stable. T389--390. Similarly, in July and August 2009, Joseph reported to his LFS social worker that he was very depressed. T420, 424. But the social worker noted that, "[a]lthough [Joseph] says he is depressed[,] he seems to be managing his depression." T419--20.

In June 2009, staff at the Community Alliance completed an assessment of Joseph's functioning. T534--46. He was still reporting the same general symptoms. T534. Since beginning the day program in November 2008, Joseph's attendance had been minimal, and there were several months where he did not attend at all. T540, 545, 557--575. Joseph explained that he was still struggling with his tendency to isolate himself in his apartment.

T534, 545. However, when Joseph did attend the day program, he was well-kept and clean, polite and respectful, and participated well in group discussions and activities. T537--40, 560. From July to November 2009, Joseph only attended the day program once. T402--423, 547--556. And on November 30, 2009, Joseph dropped out of the day program against professional advice. T516.

From November 2009 to February 2010, Joseph generally reported that his depression had worsened, which he attributed in part to the holiday season. T387, 404--06, 412--13. Throughout this period, Brune worked with Joseph on adjusting his medications, and rated his GAF score as 50--55. T384--88, 398--99, 402, 404, 464. By March 2010, Joseph reported that he was sleeping better and noticing improvement with the new medications, although he had not noticed any real improvement with his depression. T394. In April, Joseph reported more intense racing thoughts and stated he was staying isolated more often. T460--61. Brune adjusted his medications again. Despite Joseph's reported symptoms, Brune raised his GAF to 55--60. In May, although Joseph reported he was "just getting by" and that he was anxious and could not sleep due to racing thoughts, Brune noted his depression and activities of daily living were stable, and assessed a GAF score of 55--58. T458.

In January 2010, Joseph began attending individual therapy sessions with Jay Patil, a licensed mental health professional (LMHP) with LFS. T405, 442. At their first session, Patil noted that Joseph was very open and honest, and appeared to be in a good mood. T442. Joseph described his sessions with Patil as "good" and stated they were building rapport. T394, 397. Over the following months, Patil encouraged Joseph not to isolate himself, to return to church or other social activities, and to get involved with a day program. T395, 438, 440, 482, 487--488. Patil explained that isolation could exacerbate Joseph's depression. T438, 487.

Joseph's social workers also encouraged him to return to the Community Alliance day program. T466, 470, 472, 480. Eventually Joseph contacted the day program to set up an intake appointment so he could begin attending again. T480, 482, 484, 487--88. However, Joseph continued to have a negative attitude about the program. T470, 472, 480. His initial intake appointment was postponed multiple times, as he continued to call in sick. T467, T473, 475, 476. One of Joseph's social workers expressed concern that Joseph was simply calling in sick to avoid going to the program. T467. As of August 2010, the record does not show that Joseph ever followed through with the intake appointment. T466.

On August 4, 2010, Brune assessed Joseph's GAF as 58--60. T455, 457. Brune noted that Joseph's depression had stabilized and that although Joseph reported increasing anxiety, Brune found it to be under "fair control." T456--57. The next day, Brune also completed several psychiatric evaluation forms. T494--501. Sidney Kauzlarich, M.D., a clinical psychiatrist and Brune's supervisor, co-signed the forms in September. T501, 510, 577. These forms will be discussed briefly in the summary of the ALJ's findings, and more fully in the Court's analysis below.*fn5

In September 2010, Joseph responded to interrogatories supplied by the agency. T236. He reported symptoms that were more or less the same as above, and that his medications were somewhat effective, but he was still having difficulty sleeping. T236--37. Joseph stated that, at times he could barely leave his apartment, because his depression kept him "locked in and paranoid." T236. He occasionally experienced blackouts where he would not remember what he had done for the past hour. T236. Joseph wrote, "I can't be around people. The anxiety makes me unable to think, my stomach ulcers kick in." T236. Joseph also summarized his recent daily activities. He was still able to take care of himself. T239--40. On an average day, he stated, "[s]ometimes I'll work on the computer. I keep a journal. I watch TV, eat, do a little bit of cleaning." T240. He reads on the computer for about an hour throughout the day, usually reading the news. T240.

The record also contains a letter from Joseph's grandmother, Nancy Mills, with whom he lived in 2007. T37, 211--13. This letter is discussed below in connection with the ALJ's decision.

A review of Joseph's GAF scores from 2008 to 2010 provides a helpful overview of his conditions and how they changed. As the following table shows, Joseph's lowest levels of functioning lasted only briefly, and by early 2009, he was consistently rated in the "moderate" range.

Joseph's GAF Scores, 2008 to 2010 Date Score Evaluator Transcript 7/2008 20-25 Roger J. Pentzien, M.D. (neuropsychiatrist) and Aly S. Hassan, M.D. T280, 282 8/2008 29 Mark J. Diercks, M.D. T273 8/2008 47 Czyz T298 8/2008 50 Ramaswamy T293 11/2008 48 Brune T315 1/2009 50, 55 Brune T359, 392 2/2009 55 Brune T372--73 5/2009 55--58 Brune T370--71 7/2009 50--55 Brune T390 1/2010 50 Patil T489 1/2010 50--55 Brune T388 2/2010 50--55 Brune T464 4/2010 55--60 Brune T461 5/2010 52 Patil T489 5/2010 55--58 Brune T458 8/2010 58--60 Brune T455, 457

C. Hearing Testimony

The ALJ held a hearing on September 20, 2010, and received testimony from Joseph and the vocational expert (VE), Anita Howell. T26--61. Joseph testified regarding his symptoms and his daily routine, and this generally mirrored his previous statements on these subjects. T42, 44, 48--49. Joseph testified that his medications had helped him, but were not helping much with his depression and racing thoughts. T45--46. The racing thoughts made it difficult for him to focus and concentrate, and he was often nervous and had poor memory. T46. Joseph explained that his symptoms would interfere with jobs such as his former hotel positions, because he would not want to be around people, and would not be able to focus. T47. He stated there were times when he zoned out for a couple hours and would not remember what had happened. T47.

The ALJ asked if Joseph could handle a job such as cleaning offices at night, where he might run into a co-worker once or twice during the night but was mostly alone, doing the same simple tasks. T47. Joseph responded that if his depression was severe, he would not be able to show up, and this poor attendance would get him fired. T47. He explained that about once or twice a month, his depression was so severe he was unable to get out of bed for days. T44--45. Joseph also believed that he would lack the focus necessary to do this sort of job. T48.


The Court reviews a denial of benefits by the Commissioner to determine whether the denial is supported by substantial evidence on the record as a whole. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011) (citing 42 U.S.C. § 405(g)). Substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the conclusion. Id. The Court must consider evidence that both supports and detracts from the ALJ's decision, but will not reverse an administrative decision simply because some evidence may support the opposite conclusion. Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011). If, after reviewing the record, the Court finds 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 ALJ's decision. Id. The Court reviews for substance over form: an arguable deficiency in opinion-writing technique does not require the Court to set aside an administrative finding when that deficiency had no bearing on the outcome. Buckner v. Astrue, 646 F.3d 549, 559 (8th Cir. 2011). And the Court defers to the ALJ's determinations regarding the credibility of testimony, so long as they are supported by good reasons and substantial evidence. Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011).

Where the claimant submits evidence to the Appeals Council that was not previously submitted to the ALJ, the new evidence becomes part of the administrative record before the Court. Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992). If, as here, the Appeals Council considered the new evidence but declined to review the ALJ's decision, the Court does not evaluate the Council's decision to deny review, but determines whether the record as a whole, including the new evidence, supports the ALJ's determination. Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000); see also Van Vickle v. Astrue, 539 F.3d 825, 829 n.2 (8th Cir. 2008). The Court must decide how the ALJ would have weighed the new evidence had it existed at the initial hearing. Bergmann v. Apfel, 207 F.3d 1065, 1068 (8th Cir. 2000). ...

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