Shontos v. Barnhart

• Decision Date: 07 May 2003
• Docket Number: No. 02-1866.,02-1866.
• Citation: 328 F.3d 418
• Parties: Shirley SHONTOS, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

328 F.3d 418

Shirley SHONTOS, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security Administration, Defendant-Appellee.

No. 02-1866.

United States Court of Appeals, Eighth Circuit.

Submitted: December 12, 2002.

Filed: May 7, 2003.

COPYRIGHT MATERIAL OMITTED

Thomas A. Krause, argued, Des Moines, IA (Michael DePree, Davenport, IA, on the brief), for appellant.

William C. Purdy, argued, Asst. U.S. Attorney, Des Moines, IA (Christina Young Mein, Social Security Administration, Kansas City, MO, on the brief), for appellee.

Before WOLLMAN, LAY, and MAGILL, Circuit Judges.

AMENDED

LAY, Circuit Judge.

Shirley Shontos appeals from a judgment of the district court affirming a final decision of the Commissioner of Social Security denying her Disabled Widow's Benefits. We reverse with instructions to the district court to remand to the Commissioner for award of benefits.

I.

Ms. Shontos filed an application with the Social Security Administration for Disabled Widow's Benefits on December 7, 1998, following her husband's death on November 18, 1998. (A.R. at p. 13). Prior to his death, Steven Shontos had worked at International Paper Company for thirty-two years. The Shontos' had been married for thirty-two years. At the time of her husband's death, Ms. Shontos was fifty years old. She has a ninth-grade education, and no history of outside employment during the time period relevant to our inquiry.¹ She has done some babysitting for her granddaughter. The record is inconclusive as to whether she was paid for babysitting.

Ms. Shontos applied for disability benefits, claiming she was unable to work as a result of multiple impairments including mild mental retardation/borderline intellectual functioning; degenerative joint disease of the lower back and hands; arthralgias of the shoulders; hiatal hernia and gastroesophageal reflux disease; hypertension; major depressive disorder; adjustment disorder with mixed anxiety and depressed mood; generalized anxiety disorder; and dependent personality disorder. These impairments have been verified by the state's consulting physicians. Ms. Shontos disagrees that the combination of her mental and physical impairments did not equal the listed impairment under 20 C.F.R. Pt. 404, Subpt.P, App. 1, § 12.05C.²

In December 1998, Ms. Shontos underwent a consultative psychological evaluation by Janet Drew, Ph.D., a licensed psychologist. Dr. Drew administered the Wechsler Adult Intelligence Scale-III. Dr. Drew noted that Ms. Shontos had significant difficulties with intellectual functioning, finding that she had below-average verbal and non-verbal abilities. Ms. Shontos' verbal intelligence quotient (IQ) score was 76, placing her in the fifth percentile; and her performance and full scale IQ's were both 72, placing her in the third percentile. Dr. Drew noted that Ms. Shontos' attention, concentration, and pace was variable. Dr. Drew's opinion indicated that Ms. Shontos may not be aware of the accuracy of her decisions, and may have difficulty demonstrating good judgment at all times. Dr. Drew noted that Ms. Shontos would need close supervision, support, and assistance in order to respond appropriately to changes in the work place.

On January 14, 1999, Ms. Shontos sought grief counseling from Julian Burn, Ph.D., a treating clinical psychologist at Gannon Center, a community mental health center in Clinton, Iowa. Dr. Burn's initial diagnosis of Ms. Shontos included: (1) major depressive disorder, (2) adjustment disorder with mixed anxiety and depressed mood, and (3) bereavement. In March 1999, Ms. Shontos requested that she see a female therapist for counseling. Dr. Burn referred Ms. Shontos to Sandy Bookmeyer, M.S. Ed., N.C.C., R.N., a counselor at Gannon Center. Ms. Bookmeyer is a nationally certified counselor who holds a master's degree in counseling. In addition, she is a registered nurse. Ms. Shontos met with Ms. Bookmeyer for weekly counseling from March 1999 through March 2000, after which they met approximately once per month. At the time Ms. Bookmeyer wrote her opinion regarding Ms. Shontos' work-related abilities, she had conducted forty-six counseling sessions with Ms. Shontos. Other mental health providers from Gannon Center regularly worked with Ms. Shontos, including Anabel Flaherty, Advanced Registered Nurse Practitioner, who reviewed and prescribed Ms. Shontos' psychiatric medications.

Nurse Practitioner Flaherty completed a "Questionnaire as to Mental Health Residual Functional Capacity"³ for Ms. Shontos, indicating in response to fifteen of eighteen questions posed, that Ms. Shontos had "marked" to "severe" limitations⁴ in residual functional capacity ("RFC"). In addition, Ms. Flaherty noted that Ms. Shontos was a highly anxious, depressed, dependent woman who had never functioned in traditional work settings, who met the criteria for dependent personality disorder.

Dr. Burn and Ms. Bookmeyer completed "§ 245.7 Form: Medical Opinion Re: Ability to Do Work-Related Activities (Mental)." Dr. Burn completed the form in November 1999, indicating that for the majority of questions, Ms. Shontos had "fair" or "poor or none"⁵ ability to perform the activity in question. Dr. Burn noted "[s]he is quite anxious, worrysome (sic) and sensitive to criticism (and) conflict of any sort; very unsure of herself (and) lacks confidence (and) self esteem." (A.R. at p. 189.) "[T]he chance of anxiety would interfere with her productivity." (Id. at p. 190.)

Ms. Bookmeyer completed the Questionnaire in June 2000, indicating that in most areas Ms. Shontos had "poor to none" ability to perform various types of work. Ms. Bookmeyer noted that Ms. Shontos had anxiety and dependency which "interfere significantly with her functioning." (A.R. at p. 207.) Ms. Bookmeyer attached a letter to her opinion, which stated in part:

Shirley has a great deal of difficulty focusing on things as simple as a conversation. As a result of her generalized anxiety disorder, major depressive disorder and dependent personality disorder, Shirley is constantly being distracted by obsessive thoughts and overriding worries about financial matters, her own health, her family's well being, whether she is making the correct decision about something, etc.

We have also become aware of Shirley's obsessive compulsive tendencies, in addition to her other difficulties. Even during a 50 minute session, it often becomes necessary to interrupt her pressured and non stop speech pattern and ask her to listen to exactly what I am saying. Even when I do ask her to listen it is with obvious difficulty that she is able to focus in, even briefly, on what I am telling her. Shirley is not doing this because of rudeness, but as a result of the ever present and oppressive anxiety and depressive symptoms she experiences.

(A.R. at p. 205.)

Both Dr. Burn and Ms. Bookmeyer anticipated that Ms. Shontos' impairments would cause her to be absent from work "more than four days per month." (A.R. at pp. 190, 208.)

State agency psychological consultants Dee Wright, Ph.D., and Mark Souza, M.D., reviewed Ms. Shontos' medical records. From this limited examination, Dr. Souza indicated that Ms. Shontos exhibited "[d]isturbance of mood, accompanied by a full or partial manic or depressive syndrome, as evidenced by ... diagnosis of major depressive disorder and adjustment disorder with mixed anxiety and depressed mood," for purposes of § 12.04⁶ assessment. (A.R. at p. 148.) Both Dr. Souza and Dr. Wright found that Ms. Shontos had "[s]ignificantly subaverage general intellectual functioning with deficits in adaptive behavior initially manifested during the developmental period (before age 22)" as evidenced by borderline intellectual functioning, for purposes of § 12.05 assessment. (A.R. at pp. 131, 149.) Dr. Wright was of the opinion that Ms. Shontos had moderate cognitive restrictions secondary to her borderline intellectual functioning, but despite these restrictions believed that Ms. Shontos was capable of performing non-complex, repetitive, and routine cognitive activity. Dr. Souza indicated that Ms. Shontos' impairments were severe and consistent with listings 12.04 and 12.05, but did not meet or equal a listed impairment. He offered no opinion as to whether her combination of impairments was medically equivalent to a listed impairment. Dr. Souza was of the opinion that despite Ms Shontos' limitations, she was cognitively and emotionally capable of carrying out simple, routine tasks without the need for continuous supervision.

In January 2000, Stanley Rabinowitz, M.D. conducted a physical examination of Ms. Shontos for the state. He found that she had generalized anxiety and chronic depression, exacerbated by her husband's death. He noted that her grip strength in both hands was 70% of normal with mild impairment of digital dexterity. Dr. Rabinowitz indicated that Ms. Shontos had decreased range of motion in her lumbar spine, and had moderate difficulty getting on and off the examining table and squatting. In addition, he stated that x-ray results confirmed a diagnosis of degenerative joint disease with expected functional limitations. The Social Security Administration denied Ms. Shontos' claim on February 12, 1999, and again on rehearing. An administrative law judge ("ALJ") denied her claim following an administrative hearing held in December 1999.

The ALJ found that Ms. Shontos had no past relevant work, and had no transferable acquired work skills. However, he found that Ms. Shontos retained the RFC to perform physical exertional and nonexertional requirements of work with the following limitations: lift no more than twenty-five pounds occasionally, lift ten-to-fifteen pounds repeatedly at a maximum; stand up to one hour at a time, sit from one-to-two hours at a time, and six to eight hours out of an eight hour work day; walk up to one hour at a time, with standing and walking up to six hours out of an eight hour work...