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Bowen v. Colvin

United States District Court, D. Minnesota

October 20, 2014

Ann Marie Bowen, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

Carol Louise Lewis, Esq., Carol Lewis, Attorney at Law, counsel for Plaintiff.

Ann M. Bildtsen, Esq., Assistant United States Attorney, counsel for Defendant.


JEFFREY J. KEYES, Magistrate Judge.

Pursuant to 42 U.S.C. § 405(g), Plaintiff Ann Marie Bowen seeks judicial review of the final decision of the Commissioner of Social Security ("the Commissioner"), who denied Plaintiff's applications for disability insurance benefits and supplemental security income. This matter is before the Court on the parties' cross-motions for summary judgment (Doc. Nos. 13 and 17), for a Report and Recommendation pursuant to 28 U.S.C. § 636(c) and D. Minn. LR 72.1. For the reasons stated below, this Court recommends granting Plaintiff's motion for summary judgment by remanding to the Commissioner for further proceedings, and denying Defendant's motion for summary judgment.


After the ALJ denied Plaintiff's application, a neuropsychologist administered intelligence tests for Plaintiff which revealed that Plaintiff has a full scale I.Q. of 77, a low I.Q. score consistent with borderline intellectual functioning. (Tr. 395.)[1] Moreover, the neuropsychologist's report indicated that Plaintiff's verbal comprehension fell within only the third percentile, and her sustained attention and concentration test results placed her in the severely impaired range, at the.2 percentile. (Tr. 395-96.) Plaintiff's borderline intellectual functioning was not taken into account in the ALJ's determination that Plaintiff did not meet the criteria for disability benefits, despite the fact that the ALJ acknowledged at the hearing that the vocational expert thought it would be helpful to have Plaintiff's I.Q. scores, and the ALJ considered ordering I.Q. tests but ultimately did not do so. We recommend that this matter be remanded so that full consideration may be given to the impact of the neuropsychological evaluation on Plaintiff's claim for disability.


I. Procedural History

Plaintiff filed applications for disability insurance benefits and supplemental security income in February 2011, alleging a disability onset date of February 1, 2009. (Tr. 128-55.) The Social Security Administration ("SSA") denied Plaintiff's claims initially and on reconsideration. (Tr. 61-67, 70-76.) Plaintiff timely requested a hearing before an Administrative Law Judge ("ALJ"), and the hearing was held on June 22, 2012. (Tr. 77-78, 28-51.) On July 27, 2012, the ALJ issued an unfavorable decision on Plaintiff's applications. (Tr. 10-27.) Plaintiff sought review of the ALJ's decision, but the Appeals Council denied the request for review on July 24, 2013. (Tr. 1-6.) Denial by the Appeals Council made the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.

II. Functional Reports

Plaintiff, born on October 10, 1973, was 35 years old on her alleged onset date of disability, February 1, 2009. (Tr. 128.) As a child, Plaintiff struggled academically, and she dropped out of high school when she became pregnant. (Tr. 235.) Two years later, she completed schooling at Brainerd Area Learning Center, an alternative school. (Tr. 235, 395.) She also completed nurse assistant training but did not pass the hands-on test to become certified. (Tr. 394.) She most recently worked as a housekeeper at a casino, from January 2007 through January 2009. (Tr. 185, 394.) She quit working as a housekeeper in February 2009, alleging disability from PTSD, OCD, depression, anxiety, memory impairment, learning disability, and borderline personality disorder. (Tr. 184-85.)

Plaintiff completed a function report for the SSA on February 24, 2009. (Tr. 172-79.) She reported that she had difficulty following instructions and remembering. (Tr. 172.) She spent her days caring for her children and doing housework. (Tr. 173-74.) She was capable of handling money and shopping. (Tr. 175.) She frequently read, made crafts, talked on the phone, and chatted on the computer. (Tr. 176.) She could pay attention for one hour. (Tr. 177.) She reported that she could follow written, detailed instructions, as well as short, simple spoken directions, but she did not handle stress or changes in routine well. (Tr. 178.)

Plaintiff's husband completed a third party function report on February 27, 2011. (Tr. 202-09.) He reported that Plaintiff had short term memory loss. (Tr. 202.) He stated that Plaintiff did housework, cooked, watched television, made crafts, and talked to others using her phone and computer. (Tr. 203-06.) He reported that Plaintiff could pay attention for about one hour, and she did not sleep well or handle stress or changes in routine well. (Tr. 203, 207, 208.)

Plaintiff completed an updated function report for the SSA on September 19, 2011. (Tr. 219-26.) She reported that her memory was poor and it was hard for her to concentrate, and when her work performance was questioned, it caused her to shut down. (Tr. 219.) She indicated that her typical day included getting her children off to school, going back to bed, and spending the rest of her time making crafts and cooking dinner. (Tr. 220.) She stated that her husband helped with the housework and with the children, and that stress at home caused her to shut down and go to her room. (Tr. 220, 225.) In addition, she stated that if her routine was interrupted, it made her angry and irritated. ( Id. )

III. Medical Records Before the Alleged Disability Onset Date

Plaintiff underwent a consultative psychological examination with Dr. Andrew Thompson on July 10, 2006, in support of an earlier application for Social Security disability benefits. (Tr. 240-43.) At that time, she worked parttime as a housekeeper at a hotel, and she was applying for disability based on depression. (Tr. 240.) She had lost her Medical Assistance and was unable to afford Paxil, so she was off antidepressants. ( Id. ) She was not suicidal but suffered anxiety attacks. ( Id. ) Based on her mental status examination, Plaintiff appeared to be functioning in the low average intellectual range. (Tr. 242.) Dr. Thompson diagnosed Plaintiff with major depressive disorder, and assessed a GAF score of 58.[2] (Tr. 243.) He opined that Plaintiff could understand, remember, and follow simple instructions; sustain attention and concentration to carry out work-like mental tasks with persistence and pace; and tolerate the stress of the competitive workplace. ( Id. )

Plaintiff was treated by Dr. Matt Gervais at Brainerd Medical Center. (Tr. 245-50.) On May 6, 2008, Dr. Gervais noted that he had seen Plaintiff for depression and anxiety one year earlier, and he had prescribed Paxil. (Tr. 245.) However, Plaintiff discontinued the medication after three months. ( Id. ) Her present symptoms were irritability, depressed mood, poor appetite, poor energy, and difficulty sleeping. ( Id. ) She appeared slightly anxious, and her affect was flat. ( Id. ) Dr. Gervais prescribed citalopram, an antidepressant drug ( Id. )

When Plaintiff returned to Dr. Gervais on September 16, 2008, she reported going to an emergency room four times when she had anxiety attacks. (Tr. 249.) She had been treated with Klonopin, which helped but caused fatigue. ( Id. ) She was not overly anxious on examination. ( Id. ) Dr. Gervais increased her citalopram and prescribed lorazepam, an anxiety medication. ( Id. ) The medications were helpful, and Plaintiff was doing better in early November 2008. (Tr. 250.)

On November 21, 2008, Plaintiff had thoughts of suicide and was admitted to Grace Unit at St. Joseph's Medical Center on a 72-hour hold. (Tr. 254-56.) At that time, Plaintiff reported being under stress because she feared losing custody of her two children, although she did not say why. (Tr. 255.) She had already lost legal custody of her oldest child. ( Id. ) While hospitalized, Plaintiff had a CT scan of her brain to evaluate her complaints of memory loss. (Tr. 261.) The results of the scan were negative. ( Id. )

IV. Medical Records After the Alleged Disability Onset Date

Plaintiff sought to establish care with Dr. Elizabeth McCurdy at Roosevelt Family Medicine on October 19, 2009. (Tr. 274-76.) Plaintiff reported being on various medications for depression in the past, most recently Effexor, but she said none of the medications helped. (Tr. 274.) After being off Effexor for two months, she had frequent crying spells. ( Id. ) She reported that she was tired and had no desire to do anything. ( Id. ) She also had migraine headaches almost daily. (Tr. 275.) Dr. McCurdy prescribed the drug amitriptyline for depression, insomnia, and headaches. ( Id. )

On September 2, 2010, Plaintiff underwent a psychological evaluation with therapist Scott Hanson at Children & Families of Iowa, a social service organization. (Tr. 285-95.) Hanson diagnosed Plaintiff with major depressive disorder, recurrent and mild; generalized anxiety disorder; and personality disorder, NOS, and he assessed a GAF score of 58. (Tr. 287.) Objective findings from Plaintiff's mental status examination were the following: quiet and slowed speech; depressed mood; blunted and flat affect; below average intellectual functioning; easily distracted; immediate recall deficit; and poor insight, judgment, and impulse control. (Tr. 288.) Plaintiff reported that she was stressed from fighting with her children, who were thirteen and fifteen years old. (Tr. 289, 294.) She also stated that when she did not want to deal with her problems, she locked herself in her room. (Tr. 289.) In addition, Plaintiff had difficulty sleeping, and she was fatigued, lethargic, and had little interest in things. ( Id. ) She stated she was not suicidal, and she said she had a learning disability. (Tr. 290, 293.) Hanson determined that Plaintiff required services to stabilize her mental health and improve family relations. (Tr. 295.)

On March 11, 2011, Plaintiff underwent an evaluation with Dr. James Wook Kim at Penn Mental Health Clinic in Des Moines, Iowa. (Tr. 297-98.) At the time, her symptoms were depression and anxiety with obsessive symptoms of rearranging furniture and "checking." (Tr. 297.) She also described reliving traumatic events of the past, including abuse by her ex-husband. ( Id. ) With the exception of depressed mood and restricted affect, her mental status examination was normal. ( Id. ) Dr. Kim diagnosed Plaintiff with major depression, and assessed a GAF score of 40. ( Id. ) He also prescribed Lexapro, an antidepressant, and Ambien, a sleep medication. ( Id. )

The SSA referred Plaintiff for a consultative psychological evaluation with Dr. Lyle Wagner on July 5, 2011 because Plaintiff was applying for disability as a result of mental problems including depression, anxiety, obsessive compulsive disorder, short term memory problems, learning disabilities, and borderline personality disorder. (Tr. 304-06.) She told Dr. Wagner that she did not have any physical issues. ( Id. ) During the evaluation, Plaintiff reported the following. She graduated from high school in 1993, and she attended a community college three different times, without completing a specific program. (Tr. 305.) She last worked as a housekeeper at Grand Casino Mille Lacs, and quit when she moved to Iowa in January 2009. ( Id. ) Her hobbies were reading, making crafts, listening to music, watching television, and playing solitaire. ( Id. ) She cooked and performed household chores, sometimes with the help of her husband and children. ( Id. ) She got along well with others, and her grooming and hygiene were adequate. (Tr. 306.) She was cooperative, polite, and appeared relaxed. ( Id. ) Her speech and thought processes were normal. ( Id. ) She complained of daily depression and poor sleep. ( Id. ) And at times, she felt irritable, angry and cried. ( Id. ) She reported that her energy level was poor, she felt anxiety daily, and she obsessively rearranged her house. ( Id. )

Dr. Wagner noted that Plaintiff's mood was of mild to moderate depression. (Tr. 307.) She scored in the 37th percentile in a test of concentration and attention, and she could not interpret a proverb. ( Id. ) Her judgment was adequate, and her insight was fair. ( Id. ) Due to her inconsistent responses in the mental status examination, Dr. Wagner found it difficult to assess Plaintiff's cognitive functioning, although it was probably in the low average range. ( Id. ) He recommended that Plaintiff be given the WAIS-IV test to clarify her cognitive functioning. ( Id. ) He also noted that Plaintiff endorsed various elements of borderline personality disorder. ( Id. ) Dr. Wagner diagnosed Plaintiff with major depressive disorder, recurrent and moderate; anxiety disorder, NOS; borderline personality disorder traits; and low average cognitive functioning but ruled out borderline intellectual functioning.[3] He also assessed a GAF score of 55. (Tr. 308-09.)

Dr. Wagner also found it difficult to assess Plaintiff's ability to understand instructions without obtaining more information from intelligence testing. (Tr. 307.) He felt she might have some difficulty in persisting at a reasonable pace to complete a particular task due to her level of depression and anxiety. (Tr. 308.) He also thought Plaintiff's depression and anxiety might cause difficulty in managing stress and pressure in workplace. ( Id. )

On June 14, 2011, Plaintiff underwent an evaluation with Nurse Linda Hertz at Northern Pines Mental Health, for the purpose of establishing care with a new provider after moving from Iowa to Minnesota. (Tr. 301-03.) Plaintiff reported that she had not been on any medications since moving to Minnesota in April 2011, and she reported symptoms of depression and anxiety. (Tr. 301.) She was overweight but did not report any acute or chronic physical conditions. (Tr. 302.) Her mental status examination was normal, and she appeared to have average intellectual ability, based on conversation. (Tr. 302-03.) Hertz diagnosed Plaintiff with major depression and anxiety, NOS. (Tr. 303.) And she assessed a GAF score of 50. ( Id. )

Plaintiff saw Nurse Hertz again on July 5, 2011, and Plaintiff reported that she was doing much better since she resumed her medication. (Tr. 333.) Plaintiff's mental status examination was normal at that time. ( Id. ) In September 2011, Plaintiff's husband agreed that Plaintiff was doing better. (Tr. 331.) Plaintiff reported that she had more energy, and she was happy with her medications. ( Id. ) Her mental status examination remained normal. ( Id. )

Plaintiff did not return to Nurse Hertz until February 2012, after she was off her medications for a few months because she could not afford the copayments. (Tr. 363-64.) Hertz said that Plaintiff's judgment and insight were poor, her grooming and hygiene were "okay, " and her mood and affect ...

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