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Patsios v. Colvin

United States District Court, District of Nebraska

March 4, 2015

DEBRA D. PATSIOS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


John M. Gerrard United States District Judge.

This matter is before the Court on the denial, initially and upon reconsideration, of plaintiff Debra D. Patsios' application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. The Court has considered the parties' filings and the administrative record. For the reasons discussed below, the Commissioner's decision is reversed and remanded for further proceedings consistent with this opinion.


Patsios applied for disability insurance benefits in June 2010. T51, 118.[1] Her claim was denied initially and on reconsideration. T51–69. Patsios appealed and requested a hearing before an administrative law judge (ALJ). T72–73. The ALJ held a hearing on January 30, 2012. T27–50. In a decision dated April 16, 2012, the ALJ found that Patsios was not disabled as defined under 42 U.S.C. §§ 416(i) or 423(d), and therefore not entitled to benefits. T11–21.

Disability, for purposes of the Social Security Act, is defined as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. §§ 416(i) & 423(d).

To determine whether a claimant is entitled to disability benefits, the ALJ performs a five-step sequential analysis. 20 C.F.R. § 404.1520(a)(4). At step one, the claimant has the burden to establish that she has not engaged in substantial gainful activity since her alleged disability onset date. Cuthrell v. Astrue, 702 F.3d 1114, 1116 (8th Cir. 2013). If the claimant has engaged in substantial gainful activity, she will be found not to be disabled; otherwise, at step two, she has the burden to prove she has a medically determinable physical or mental impairment or combination of impairments that significantly limits her physical or mental ability to perform basic work activities. Id.

At step three, if the claimant shows that her impairment meets or equals a presumptively disabling impairment listed in the regulations, she is automatically found disabled and is entitled to benefits. Id. Otherwise, the analysis proceeds to step four, but first, the ALJ must determine the claimant's residual functional capacity (RFC), which is used at steps four and five. 20 C.F.R. § 404.1520(a)(4). A claimant's RFC is what she can do despite the limitations caused by any mental or physical impairments. Toland v. Colvin, 761 F.3d 931, 935 (8th Cir. 2014). At step four, the claimant has the burden to prove she lacks the RFC to perform her past relevant work. Cuthrell, 702 F.3d at 1116. If the claimant can still do her past relevant work, she will be found not to be disabled; otherwise, at step five, the burden shifts to the Commissioner to prove, considering the claimant's RFC, age, education, and work experience, that there are other jobs in the national economy the claimant can perform. Id.; Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010).

Patsios alleged disability primarily as a result of depression and bipolar disorder.[2] T13, 51, 53. She alleged a disability onset date of June 24, 2009. T118. The ALJ found that, based on her earnings record, Patsios could remain insured through December 31, 2014. Thus, the question before the ALJ was whether Patsios had demonstrated that she was disabled for some period of not less than 12 months from between June 24, 2009 to December 31, 2014.

At step one, the ALJ found that Patsios had not engaged in substantial gainful activity following her alleged onset date. Next, at step two, the ALJ found that Patsios' bipolar disorder and depression were medically determinable, severe impairments. At step three, the ALJ found that Patsios' conditions did not meet or medically equal a listed impairment. T13–15.

The ALJ then determined that Patsios had the RFC to perform medium work, except that she was limited to simple, routine, repetitive tasks requiring occasional interaction with the public. T15. At step four, the ALJ found, based upon interrogatories submitted to a vocational expert ("VE"), that Patsios lacked the ability to perform her past relevant work. The VE stated that Patsios could not perform her past work as a machine operator because of her shoulder, and could not perform any of her other past work because the positions all involved more than occasional interaction with the public. T19–20, 260. However, at step five, the ALJ found that Patsios could perform other jobs that existed in significant numbers in the national economy. T20–21. This was based on the VE's statement that an individual with Patsios' RFC could perform the representative jobs of lab equipment cleaner, meat checker, and counter supply worker. T261. So, the ALJ found that Patsios was not disabled. T21.

On May 16, 2013, after receiving additional evidence (T275–83, 455– 85), the Appeals Council of the Social Security Administration denied Patsios' request for review. T1–4. Patsios' complaint (filing 1) seeks review of the ALJ's decision as the final decision of the Commissioner under sentence four of 42 U.S.C. § 405(g).


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. Bernard v. Colvin, 774 F.3d 482, 486 (8th Cir. 2014). Where, as here, the Appeals Council denies review of an ALJ's decision after reviewing new evidence, the Court does not evaluate the Appeals Council's decision to deny review, but rather determines whether the record as a whole, including the new evidence, supports the ALJ's determination. McDade v. Astrue, 720 F.3d 994, 1000 (8th Cir. 2013). In such cases, the Court must evaluate 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).

Substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the conclusion. Bernard, 774 F.3d at 486. The Court must consider evidence that both supports and detracts from the ALJ's decision, and will not reverse an administrative decision simply because some evidence may support the opposite conclusion. Id.; Whitman v. Colvin, 762 F.3d 701, 706 (8th Cir. 2014). 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. Bernard, 774 F.3d at 486.


A. Patsios' Prior Mental Health History and the Alleged Onset Date

Patsios' claim for benefits, and her arguments on appeal, are addressed primarily at her depressive symptoms. Patsios has a long history of depression. On her alleged onset date, she was 53 years old. T32. Patsios experienced her first depressive episode when she was a teenager, and these have occurred off and on for her entire life. She also has a history of hospitalization for depression and thoughts of suicide, beginning as a teenager and later in 1997 and 1999. T284, 312. From about 1997 to 2001, Patsios received Social Security disability benefits due to her depression. T34, 129, 285.

Eventually Patsios' condition improved, and she was able to return to work. T312. From approximately 2002 to 2009, she worked in a variety of positions. Patsios worked part-time as a pizza delivery driver from late 2002 to early 2003, and thereafter worked more or less full-time as a machine operator, convenience store cashier, and retail customer service manager. T151, T215–24.

At the hearing before the ALJ, Patsios explained why she selected a disability onset date of June 24, 2009. At that time, a back surgery that went wrong left Patsios' husband paralyzed from the waist down, and she took family medical leave from her job to help him. T33, 35. Patsios explained that, around that time, she began to experience "deep depression" and felt that she "just couldn't handle everything anymore" and "was having a lot of trouble dealing with everything." T35, 150. Eventually, her family medical leave ran out, and she did not return to her job. She tried working again in January 2010 as a bookkeeper, but she was fired after about 2 months because she was unable to "remember and do the job." T13, 35, 312.

B. Patsios' Symptoms and Activities of Daily Living

At the hearing before the ALJ, Patsios described the impact of her mental illness on her ability to function. Her testimony generally matched her reports to treatment providers for the period under consideration. Patsios explained that she had little energy, could not maintain focus or attention, and was forgetful. T31, 40–42, 312. She cried easily and felt depressed most days out of a month. T40–41. Patsios stated that she had mood swings which made her irritable, and she generally wanted to stay away from other people. T40–41, 230. And she experienced thoughts of suicide once or twice a month. T41.

Patsios also described her daily activities. Again, this testimony mirrored her responses in disability questionnaires submitted throughout the period under consideration. Patsios was the primary caregiver for her grandson, who was 9 years old at the time of the hearing. T32, 284, 311. Caring for him involved making him breakfast and getting him ready for school, then helping with his homework at night, making dinner, and getting him ready for bed. T39–40. Patsios cooked simple meals and performed basic household chores. T226. Patsios' husband had a caregiver who helped him during the day, but Patsios helped him overnight. T12, 40, 361. Although she went grocery shopping, she had help, and she also received help making sure she took her medications properly. T282, 440. She did not engage in any social activities, although, as discussed below, she participated in mental health day services at Goodwill Industries about twice a week. T226. Patsios liked to crochet and quilt, and would do so for about 1 hour a day. T37, 228. Otherwise she would watch television for 4 to 6 hours a day. T37, 228.

C. Medical and Disability Records: 2010 Through 2012

In April 2010, Patsios began receiving mental health treatment. She received medication management on a monthly basis from Linda Berry, APRN, and attended counselling with a therapist twice a month.[3] T45, 284, 312. Prior to her first visit with Berry, Patsios had not been taking any psychotropic medications for the preceding 4 years. And although she had ...

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