Appeal Until You Get Approved

(Illustration by Greg Groesch for The Washington Times)

Social Security Disability Insurance (SSDI) is a federal entitlement created in 1956 as an insurance plan for long-tenured workers with the misfortune of becoming disabled before retirement. Today, the program has ballooned into a $135 billion behemoth threatening to collapse under its own weight. Left unchecked, decades of loose standards and poor enforcement may cause a collapse of the system that would culminate in thousands — if not millions — of deserving recipients being deprived their rightful benefit.
Federal disability insurance began from humble beginnings, but unfortunately, over time, has grown dramatically, and today the fastest-rising cost for Social Security is not retiring baby boomers, but skyrocketing disability insurance benefits. In 1970, the disability insurance program was financed with a payroll-tax rate of only 0.8 percent of wages. Today, the cost of SSDI has tripled relative to the 1970 level with disability benefits now making up 18 percent of all Social Security costs. This is a marked difference from 10 percent in 1990. The number of people on SSDI in 2012 exceeded the entire population of New York City at more than 8.7 million participants.
The biggest contributing factor has been the ease with which benefits can be obtained. While it is tempting to blame the aching knees and backs of an aging population, the truth is that American workers are healthier and fitter today than they were when SSDI was in better fiscal shape. Instead, the answer is the program has grown soft around the middle for three reasons: low standards, enticing benefits and far too little control over its own screening process.
It is unfortunate that the disability insurance program has morphed from a program for permanently disabled workers with a substantial work history who were over the age of 50 to a rapidly growing program covering an increasing number of marginally disabled workers.
The screening process of approving SSDI applicants, once run by the Social Security Administration, has been foisted upon a system of appeals run by an overworked and underregulated network of administrative law judges (ALJ). In this system, a growing amount of applicants and their well-practiced lawyers have come to treat initial approval-or-denial of benefits as merely the first stop on the way to an appeal, where the odds of success are higher. Worse, these lawyers face badly orchestrated incentives that can cost taxpayers dearly.
Part of the solution for rising disability costs is to refocus benefits on the most disabled individuals, coupled with incentives for employers to keep disabled people working. In 2010, one out of every 50 working Americans applied for federal disability benefits. Furthermore, with a challenging employment market, this program has also functioned as a fallback for workers without employable skills. Only half of those who enter the disability rolls will ever return to the workforce.
The expansion of this program is troubling even in a booming economy. In a country with a nearly $17 trillion national debt the fiscal unsoundness of this program is even more alarming. The program is growing faster than the payroll-tax revenues that fund it, and the Congressional Budget Office predicts that the SSDI trust fund will be entirely depleted by 2016. At that point, barring legislation to further fund SSDI, the program will be forced to begin paying smaller benefits, or will raid another program such as Social Security’s Old Age and Survivors Insurance trust to cover the balance.
Grappling with the problems posed by a rapidly expanding SSDI system would be simpler if it were the case that the working-age population had simply gotten older and less able to earn a living. Instead, the principal drivers of SSDI growth are a loosening of eligibility requirements, increasingly attractive benefits and an application process that has become incapable of distinguishing between truly disabled workers and those who should be rejected. Together, these three factors have combined to create a modern SSDI program very different than the one envisioned by its architects. Going forward, it is essential that Congress take significant steps to rein in SSDI’s growth. Those changes will inevitably be decried as insensitive and unjust, but they are essential. To do nothing — to continue to prioritize the able-bodied over the truly infirm — is far worse.
By MacMillin Slobodien , an executive director of Our Generation, a nonprofit advocacy group, which is launching the Reform SSDI Now project.

Homosexual Married Couple Files For Divorce

Just one month after announcing that she and her wife of three years, Dr. Lara Embry, are going their separate ways, Jane Lynch has officially filed for divorce in an L.A. County Court, TMZ reports. 

The Glee actress, 52, cited "irreconcilable differences" as the reason for the couple's split. The documents state that the pair have been separated since this past February.

"Lara and I have decided to end our marriage," Lynch said in a statement to Us magazine in June 2013. "This has been a difficult decision for us as we care very deeply about one another. We ask for privacy as we deal with this family matter."

Lynch and Embry, 44, tied the knot in a ceremony in Sunderland, Mass. in June 2010, less than one year after meeting at a gala for the National Center for Lesbian Rights.

According to the legal documents, the couple did not have a prenuptial agreement that spelled out how they would divide their marital assets in the event of a divorce. They will therefore split their marital assets 50/50. The pair have no children together (Embry has two daughters Haden and Chase).
Lynch is also filing to terminate the court's jurisdiction to award Embry with spousal support, formally called alimony, , TMZ reports. The actress, who currently stars on the Broadway production of Annie: The Musical, has already moved out of their shared Laurel Canyon home in Los Angeles, California

George Zimmerman verdict

George Zimmerman verdict: Former neighborhood watch leader not guilty in death of Fla. teen Trayvon Martin. In America, being Black can be hazardous to your health. Just being Black often makes one a suspicious character in his own neighborhood to anyone raised on stereotypes about African Americans.
Following nearly three weeks of testimony, a jury of six women, one of whom was Black, in the George Zimmerman trial has found the former neighborhood watch volunteer not guilty of second-degree murder. He was also found not guilty of the lesser offense of manslaughter, which the jury also weighed. (CBS) SANFORD, Fla. July 13, 2013 10:06 PM

I felt the case was in trouble from the beginning. There is a law professor at my law school, The National Law Center at George Washington University, named Jonathan Turley. (Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.) He has analysed the case for USA Today.
The acquittal of George Zimmerman in the death of Trayvon Martin was not minutes old when an outcry was heard over racial injustice and demands for yet another prosecution by the Obama administration.
With the verdict, the Zimmerman case entered the realm of legal mythology -- a tale told by different groups in radically different ways for different purposes. Fax machines were activated with solicitations and sound bites programmed for this moment.
Criminal cases often make for easy and dangerous vehicles for social expression. They allow longstanding social and racial issues to be personified in villains and victims. We simplify facts and characters -- discarding those facts that do not fit our narrative. Zimmerman and Martin became proxies in our unresolved national debate over race.
Many have condemned this jury and some even called for the six jurors to be killed or demanded that they “kill themselves.” The fact is that this jury had little choice given the case presented by the prosecutors. This is why I predicted full acquittal before the case even went to the jury.
Before the case is lost forever to the artistic license of social commentary, it is worth considering what the jurors were given, or not given.
The problem began at the start. Many of us criticized State Attorney Angela Corey for overcharging the case as second-degree murder. While Corey publicly proclaimed that she was above public pressure, her prosecution decisions suggested otherwise. Investigators interviewed a key witness at the Martin home in the presence of the family -- a highly irregular practice.
The decision to push the second-degree murder charge (while satisfying many in the public) was legally and tactically unwise. The facts simply did not support a claim beyond a reasonable doubt that Zimmerman acted with intent and a “depraved mind, hatred, malice, evil intent or ill will.” Had Corey charged manslaughter, the case might have turned out differently.
The prosecutors then made that bad decision of charges worse by overplaying their evidence to overcome the testimony of their own witnesses.
For example, the prosecution inexplicably decided to lead the case with testimony of Martin’s friend Rachel Jeantel. Jeantel was a disaster, admitting to lying previously under oath and giving conflicted testimony. She also stated that just as Zimmerman was accused of calling Martin a derogatory name, Martin called Zimmerman a “cracker.”
The prosecution’s zeal for conviction seemed to blind it to the actual strengths and weakness of the case. It also led to allegations of withholding key evidence from the defense to deny its use at trial, though Judge Debra Nelson seemed to struggle to ignore the alleged misconduct.
Ultimately, we had no better an idea of what happened that night at the end of this trial than we had at the end of that fateful night. Jurors don’t make social judgment or guesses on verdicts.
While many have criticized Zimmerman for following Martin, citizens are allowed to follow people in their neighborhood. It was also lawful for Zimmerman to be armed. The question comes down to who started the fight and whether Zimmerman was acting in self-defense.
Various witnesses said Martin was on top of Zimmerman and said they believed that he was the man calling for help. Zimmerman had injuries. Not serious injuries but injuries from the struggle. Does that mean that he was clearly the victim? No. It does create added doubt on the use of lethal force.
A juror could not simply assume Zimmerman was the aggressor. After 38 prosecution witnesses, there was nothing more than a call for the jury to assume the worst facts against Zimmerman without any objective piece of evidence. That is the opposite of the standard of a presumption of innocence in a criminal trial.
Even for manslaughter, the jury was told that Zimmerman was justified in the use of force if he feared “great bodily harm.” That brought the jury back to the question of how the fight unfolded.
The acquittal does not even mean that the jurors liked Zimmerman or his actions. It does not even mean they believed Zimmerman. It means that they could not convict a man based on a presumption of guilt.
Of course, little of this matters in the wake of a high-profile case. The case and its characters long ago took on the qualities of legend. A legend is defined as “a traditional story sometimes popularly regarded as historical but unauthenticated.”
People will make what they will of the murder trial of Zimmerman. However, this jury proved that the justice system remains a matter not of legend but law.

Harvard Law professor Alan Dershowitz says the prosecutors in the George Zimmerman murder trial should be charged with "prosecutorial misconduct" for suggesting the defendant planned the fatal shooting of Trayvon Martin.

"That is something no prosecutor should be allowed to get away with … to make up a story from whole cloth," Dershowitz told "The Steve Malzberg Show" on Newsmax TV.

"These prosecutors should be disbarred. They have acted absolutely irresponsibly in an utterly un-American fashion."

Dershowitz is calling for a federal investigation into civil rights violations stemming from the George Zimmerman case — but he says the probe should focus on prosecutorial misconduct rather than on allegations of racial profiling and bias.

Speaking Sunday in an exclusive Newsmax interview, Dershowitz said the jury’s finding that Zimmerman was not guilty of either second-degree murder or manslaughter was “the right verdict.”

He added, “There was reasonable doubt all over the place.”

(State Attorney Angela Corey and her assistant state attorneys Richard Mantei (L), John Guy (2nd L), and Bernie de la Rionda (R))

 Special prosecutor Angela Corey said continues to defend her decision to charge Zimmerman with second-degree murder. "We charge what we believe we can prove,” she told the media. “That’s why we charged second-degree murder. We truly believe that the mindset of George Zimmerman and the words that he used and the reason he was out doing what he was doing fit the bill for second-degree murder.”

Corey said the case “has never been about race,” but also said there was “no doubt” young Trayvon Martin had been “profiled to be a criminal.”

Although Zimmerman was cleared of all charges, Corey told the media: “This case was about boundaries and George Zimmerman exceeded those boundaries.

Zimmerman, a 29-year-old neighborhood watch volunteer, is charged with gunning down Martin, 17, as the two fought following a confrontation in the gated Sanford, Fla., community where Zimmerman lives — an act the defendant said was in self-defense.

In the prosecution's final argument on Friday, lawyer John Guy said Zimmerman deliberately followed Martin and "shot him because he wanted to."

Dershowitz called Guy's statement "such speculation. How does he get into the mind of Zimmerman? He hasn't cross-examined him, he hasn't met him.

"To ask the jury to believe that is to ask the jury to convict based on complete and utter speculation and that's not the way the law operates."

A day earlier, prosecutor Bernie de la Rionda said Zimmerman — whom he labeled a "wannabe cop" — "followed" and "tracked" Martin after profiling him as a criminal.

Dershowitz said not only should Zimmerman have not been charged with second-degree murder, but prosecutors should not have pushed to have manslaughter and child abuse added to the list of possible jury verdicts.

"[It's] utterly irresponsible. … The idea that the prosecution can try the case on a murder theory and then, at the last minute, substitute manslaughter, even though it seems to be permitted generally under Florida law — it's a big mistake to allow it in a case like this,” he said.

"And then the very idea of even suggesting child abuse in a case like this is so irresponsible."

Dershowitz praised the closing argument of defense lawyer Mark O'Mara.

"He did the right thing by being methodical and factual because this is a case where the prosecution's case is all emotion and the defense case is all factual," the famed civil-rights lawyer said.

"Emotionally, obviously everybody can identify with a young, unarmed 17-year-old who ends up dead, and emotionally, as President [Barack] Obama said, he's all of our children."

Dershowitz — whose clients have included Claus von Bulow, Mike Tyson, Patricia Hearst, and former televangelist Jim Bakker — said the case has "reasonable doubt" written all over it.

"Nobody knows who started the initial physical encounter, who threw the first blow — and if you don't know that you have to have a reasonable doubt," he said.

"Nobody knows for sure who screamed, 'Help me, help me.' You have to have a reasonable doubt about that. Nobody knows for sure who was on top and who was on bottom, though the overwhelming forensic evidence suggests that Zimmerman was on the bottom having his head banged by a younger, stronger man. You have to have reasonable doubt there."

 Dershowitz added that he expects there will probably be a wrongful death lawsuit filed against Zimmerman for civil damages. He said civil-damage cases require a lower standard of proof that a wrong has been committed, and Zimmerman would not be able to avoid testifying.

Dershowitz was careful to add that the tragic killing of Trayvon Martin exposes a need to reform Florida laws.

He believes the Stand Your Ground law should be changed because it "elevates macho over the need to preserve life." 

He also stated that racial profiling “has to be addressed.”

“I think these vigilante community groups have to be disarmed,” he said. “I don’t think Zimmerman should have been allowed to have a gun.

“He should have been walking around with a walkie-talkie and calling the police,” he said. “It’s the job of the police to investigate and apprehend suspects based on their professional training.”

Now let us hear the conclusion of the matter. The bottom line is that Trayvon Martin was killed because he was Black. He was followed because he looked suspicious; he looked suspicious because he was Black; he was profiled because he was Black and looked suspicious; He was confronted because he was presumed to be harboring a criminal intent; He was shot by a man with a concealed weapon who wanted to prove to himself that he was not afraid of young Black men; he was killed because he was young, Black, and defenseless. In America being Black can be hazardous to your health.

The Following Is An Open Letter From A Retired African American Military Officer.

I too felt bitter disappointment and anger with a system that more often than not swings Justice in the opposite direction. Once again I have to reconcile an action that makes no humane sense to my reasoning of fairness to all. I never met Trayvon Martin but the circumstances of his murder placed him deeply within my conscience and spirit as though we actually met and shared memories as black americans. The Verdict did not surprise me, which is a very sad statement to make. The jury minus of any black person did as expected for a young black man. In a perfect society it should not make a difference, but that’s not the case and we know it deep in our hearts. They were asked to accomplish the most challenging aspect of our lives. Remove their emotions from the equation and use their logic wholly with the less than perfect instructions from the court system. Every day of our lives we are challenged to align our emotions with logic when we are faced with choices. As long as I’ve lived I have yet to find the one person that has mastered this. The hopeful thoughts of Justice being rendered to a black child that was wronged and not delivered offends my dedication and devotion to our country which I swore to protect and defend with my life as we all have.

I’m left empty, bitter, frustrated and just damn right angry. Once again I must ponder on taking the high rode, suppress my animalistic desire to strike out and hurt someone. None of those options will bring Trayvon back or soothe his parents fractured souls nor mine. I too have had to sequester myself, from the TV, radio or any form of newscasts that would remind me. Just allowing myself to be in the Martins’ frame of mind gives me the shudders and an excruciating pain. I know we are a strong people that have suffered slights from the system since day one coming to these shores. The sore does not heal because of moments like these that refreshes the wound. Time does heal but unfortunately not for us when I know another Trayvon is on their unsuspecting way towards another isolated incident that due to the legalese of the law will cloak the devilish intentions of another Zimmerman and embrace them as the victim although they are the perpetrator.

Praying is not getting it done. I’ve prayed unselfishly countless times to no avail. My knees ache from bending down and frankly I’m tired of not seeing a true and meaningful difference not just in this circumstance but many different life situations. Lord I humbly beg you to instill true love, respect, consideration and truthfulness into all of your children on this earth.

Marching, protesting and just crying foul is nothing more than good theater to those that do not have a real understanding of our plight. Be damned, if we should use the race card in this insidious game of conquer, destroy, demean, degrade, defile and outright betrayal. Race was the cornerstone of this murder, like so many others. But we are not to infuse it on our behalf although it is used against us on many fronts. We are not in a colorless society but our societal power brokers want us to believe this lie and will go out of their way to ensure the message is steadfastly circulated with examples of its none existence but to their benefit.

I’m so sorry Trayvon little bro that you had to lose your life at the formative stage when you were about to go into true manhood. The treasure chest of memories you created with your parents, sibling and friends is now complete and must be closed to any new memories. You won’t be forgotten at least by those that shared so many similarities to you. I can only hope that you may rest in peace knowing your family will always cherish those memories of you deeply in their hearts and that they tried to get some semblance of Justice for your wrongful death. Zimmerman, I doubt will never internalize his actions to at least come forward and tell the real story. He is a product of our society that values themselves over anything that is really righteous unless its for their own good. He will get his in due time without us wishing any ill will towards him. You can’t do something bad and expect any good to come out of it.

For my active duty members and those still in the employ of others, do yourselves a favor by not debating the merits of the case with those that can’t really relate to our plight. Keep your heads high, stay sharp, professional in all aspects of your duties. Our ancestors have been down this road before us and now we get our turn to feel the anguish of Justice not served in the face of wrong.

Peace to us all!

F.M.

This from the President of the Southern Poverty Law Center on the verdict yesterday:

Dear Gail,

"They always get away." These were the words George Zimmerman uttered as he followed and later shot Trayvon Martin -- words that reflected his belief that Trayvon was one of "them," the kind of person about to get away with something. How ironic these words sound now in light of the jury verdict acquitting Zimmerman.

Trayvon is dead, and Zimmerman is free. Who was the one who got away?

Can we respect the jury verdict and still conclude that Zimmerman got away with killing Trayvon? I think so, even if we buy Zimmerman's story that Trayvon attacked him at some point. After all, who was responsible for initiating the tragic chain of events? Who was following whom? Who was carrying a gun? Who ignored the police urging that he stay in his car? Who thought that the other was one of "them," someone about to get a away with something?

The jury has spoken, and we can respect its conclusion that the state did not prove its case beyond a reasonable doubt. But we cannot fail to speak out about the tragedy that occurred in Sanford, Florida, on the night of February 26, 2012.

Was race at the heart of it? Ask yourself this question: If Zimmerman had seen a white youth walking in the rain that evening, would he have seen him as one of "them," someone about to get away with something?

We'll never really know, of course. But we can seriously doubt it without assuming that Zimmerman is a racist in the conventional sense of the word.

Racial bias reverberates in our society like the primordial Big Bang. Jesse Jackson made the point in a dramatic way when he acknowledged that he feels a sense of relief when the footsteps he hears behind him in the dead of night turn out to belong to white feet. Social scientists who study our hidden biases make the same point in a more sober way with statistics that demonstrate that we are more likely to associate black people with negative words and imagery than we are white people. It's an association that devalues the humanity of black people, particularly black youth like Trayvon Martin.

George Zimmerman probably saw race the night of February 26, 2012, just like so many of us probably would have. Had he not, Trayvon probably would be alive today.

The jury has spoken. Now, we must speak out against the racial bias that still infects our society and distorts our perception of the world. And we must do something about it.

Sincerely,

Richard Cohen
President, Southern Poverty Law Center

Reversed and Remanded

TALLEY v. ASTRUE

BRENDA L. TALLEY, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner, Social Security Administration, Defendant.

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MEMORANDUM OPINION AND ORDER

BETH DEERE, Magistrate Judge.

Plaintiff Brenda L. Talley appeals the final decision of the Commissioner of the Social Security Administration (the "Commissioner") denying her claim for Disability Insurance benefits ("DIB") under Title II of the Social Security Act (the "Act") and Supplemental Security Income ("SSI") under Title XVI of the Act. For the following reasons, the decision of the Commissioner must be REVERSED and REMANDED.

I. Background:

Ms. Talley filed for DIB and SSI on May 15, 2008, claiming disability since June 23, 2007. Ms. Talley alleged that she was disabled as a result of diabetes, arthritis, anxiety, morbid obesity, malabsorption syndrome, agoraphobia, hypertension, supraventricular tachycardia, obsessive compulsive disorder, neuropathy, retinopathy, endometriosis, degenerative joint disease, chronic insomnia, and deep vein thrombosis. After denials initially and upon reconsideration, Ms. Talley requested a hearing before an Administrative Law Judge ("ALJ").  The ALJ held a hearing on July 6, 2009, at which Ms. Talley appeared with her attorney and testified.  The ALJ also heard testimony from a vocational expert.

The ALJ issued a decision on November 4, 2009, finding that Ms. Talley was not disabled for purposes of the Act. On January 20, 2011, the Appeals Council denied her request for review, making the ALJ's decision the Commissioner's final decision.

At the time of the hearing before the ALJ, Ms. Talley was 47 years old and was living alone in a house next door to her mother and brother. (Tr. 19, 40-41) She had previous work as a registered nurse.

II. Decision of the Administrative Law Judge:

The ALJ followed the required five-step sequence to determine: (1) whether the claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a severe impairment; (3) if so, whether the impairment (or combination of impairments) met or equaled a listed impairment; (4) if not, whether the impairment (or combination of impairments) prevented the claimant from performing past relevant work; and (5) if so, whether the impairment (or combination of impairments) prevented the claimant from performing any other jobs available in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)-(g); 416.920(a)-(g).

The ALJ found that Ms. Talley had not engaged in substantial gainful activity since her alleged disability onset date but noted that she had received unemployment benefits into the first quarter of 2008, indicating she was available and willing to return to work during that period.  The ALJ also found that Ms. Talley had the following severe impairments: diabetes mellitus, back disorder (degenerative arthritis), obesity, and mood disorder.  According to the ALJ, Ms. Talley did not have an impairment or combination of impairments, however, that met or equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1526, 416.926).

The ALJ determined that Ms. Talley retained the residual functional capacity ("RFC") to perform sedentary work except as follows: she could occasionally lift/carry ten pounds and frequently lift/carry less, stand/walk for two hours; occasionally climb, balance, crawl, kneel, stoop, and crouch. She had moderate restriction in her ability to maintain the activities of daily living, social functioning, and concentration, persistence, and pace. She was moderately limited in her ability to understand, remember, and carry out detailed instructions; make judgments on simple work related decisions; interact appropriately with the public; and respond appropriately to usual work situation and routine work changes. She could perform work where interpersonal contact was incidental to the work performed, complexity of tasks is learned and performed by rote, with few variables, little judgment was required, and supervision was simple, direct, and concrete.

The ALJ concluded that Ms. Talley could not perform her past relevant work as a registered nurse. (Tr. 58) Relying on the vocational expert's responses to interrogatories, the ALJ concluded Ms. Talley could perform work as a production worker, credit authorizer, or interviewer and that she was not disabled within the meaning of the Act.
III. Analysis:

A. Standard of Review.In reviewing the Commissioner's decision, this Court must determine whether there is substantial evidence in the record as a whole to support the decision.  Substantial evidence is something less than a preponderance, but it must be, "sufficient for reasonable minds to find it adequate to support the decision."

In reviewing the record as a whole, the Court must consider both evidence that detracts from the Commissioner's decision and evidence that supports the decision; but, the decision cannot be reversed, "simply because some evidence may support the opposite conclusion." 

B. Severe Impairments and Residual Functional Capacity

Ms. Talley complains that the ALJ erred by failing to find that her diabetic retinopathy, supraventricular tachycardia (SVT), peripheral neuropathy, and hip pain were severe impairments.  She also complains that the ALJ's residual functional capacity assessment is not supported by substantial evidence in the record.

Ms. Talley had the burden of showing that her impairments were severe; however, this burden is not a great one.  Rather, step two of the sequential evaluation process provides a de minimus screening device to dispose of groundless claims. 

An impairment is severe if the effect of the impairment on the claimant's ability to perform basic work is more than slight or minimal.  Basic work activities are the abilities and aptitudes necessary to do most jobs, such as hearing, standing, walking, sitting, lifting, handling, remembering simple instructions, using judgment, and dealing with changes in a routine work setting. 20 C.F.R. §404.1521. The Commissioner must resolve any doubt as to whether the required showing of severity has been made in favor of the claimant. SSR 85-28 at *4 (1985).

Once it is determined that an individual has a severe impairment for purposes of step two, the combined effect of all impairments are considered in determining an individual's residual functional capacity, regardless of whether the impairments are labeled severe or non-severe. 20 C.F.R. §§ 404.1545(e) and 416.945(e).

In assessing residual functional capacity, the ALJ must give appropriate consideration to all of the claimant's impairments, and base the assessment on competent medical evidence. Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011) (citations omitted). An ALJ should consider the quality of the claimant's daily activities and the ability to sustain activities, interests, and relate to others over a period of time. The frequency, appropriateness, and independence of the activities must also be considered. Boettcher, 652 F.3d at 866 (internal quotation marks and citation omitted).

1. Diabetic Retinopathy

Ms. Talley claims that the ALJ erred by failing to find that her diabetic retinopathy was a severe impairment. The ALJ noted that Ms. Talley had been referred for an evaluation of diabetic retinopathy and stated that her diabetes could be expected to cause vision changes.  But he did not find her diabetic retinopathy to be a severe impairment; nor did he discuss Ms. Talley's vision when assessing her residual functional capacity.

The Commissioner does not dispute that Ms. Talley was diagnosed with diabetic retinopathy, but argues that the diagnosis, by itself, does not indicate a severe impairment. This statement of the law is true, as far as it goes. However, the ALJ still had a duty to consider Ms. Talley's diabetic retinopathy when considering her residual functional capacity, and it appears that he failed to do so.

In November, 2009, Ms. Talley was referred for an eye examination after complaints that her eyes were hurting. The records from Ms. Talley's visit to an opthamologist in November, 2008, indicate that she had a history of retinal bleeding and glaucoma. In a narrative report dated November 13, 2009, Gary Russell, M.D., a physician at River Valley Medical Center, wrote that, according to her ophthalmologist, Ms. Talley had diabetic retinopathy with marked decrease in her vision and at least one retinal hemorrhage that was treated with laser therapy.  On November 19, 2009, Ms. Talley was seen at River Valley Christian Clinic ("River Valley") complaining of vision problems. She was referred to an eye doctor.

At the hearing, Ms. Talley testified that she had glasses, but that they were for distance vision and not for reading.  She stated that she was no longer able to read the newspaper because her vision was impaired.  However, she was able to read a large-print Bible. She also testified that one reason she used a cane was to help her deal with her visual impairment because she had difficulty detecting depth and color change.

In spite of considerable evidence in the record indicating that Ms. Talley's diabetic retinopathy has more than a minimal effect on her ability to work, it does not appear that the ALJ considered it when assessing her residual functional capacity. The ALJ found that Ms. Talley was capable of working as a production worker which, according to the Dictionary of Occupational Titles, would require her to frequently use near acuity and depth perception, and to occasionally use color vision. Employment and Training Admin., U.S. Dep't of Labor, Dictionary of Occupational Titles (4th ed. rev. 1991).

Further, it does not appear that any consulting or examining source offered an opinion about the extent of visual limitation caused by Ms. Talley's retinopathy. Remand is necessary for the ALJ to more fully and fairly develop the record regarding the extent of Ms. Talley's visual impairment, if any.

2. Peripheral Neuropathy

On November 7, 2007, Kenneth Turner, M.D., diagnosed Ms. Talley with diabetic peripheral neuropathy. On September 18, 2008, Ms. Talley complained of numbness and tingling during her visit to River Valley.

At the hearing, Ms. Talley testified that her feet and legs were cold and numb bilaterally. She stated that she had problems with strength and grip, could not open jars, and dropped things.  She had difficulty holding a glass of milk because of problems with her grip.  She also stated that her peripheral neuropathy caused her knees to buckle, leading her to use a cane. (Tr. 30) She had difficulty getting up and down the three steps leading to her house.

In his opinion, the ALJ acknowledged Ms. Talley's diabetic neuropathy and considered whether there was documentation of neuropathy in two extremities significant enough to meet a Listing.  He also noted that her diabetes could cause "tingling and numbness" in the hands or feet.

When assessing Ms. Talley's residual functional capacity, however, the ALJ focused his assessment only on the neuropathy in her feet. He noted that she had reported numbness, tingling, and pain in her feet.  The ALJ stressed, however, that the orthopedic specialist had found that she had normal gait, that her neurovascular status was intact, and that she had positive straight leg tests.  The ALJ concluded that Ms. Talley could sit for six hours; stand/walk for two hours; and could occasionally climb, balance, crawl, kneel, stoop, or crouch.

The ALJ did not address the evidence in the record indicating that Ms. Talley's peripheral neuropathy also affected her hands. He did not limit her residual functional capacity in any way related to her hands and concluded she could perform work as a credit authorizer and interviewer — jobs that require frequent handling.

The ALJ's failure to fully account for Ms. Talley's peripheral neuropathy in assessing residual functional capacity is error. Again, it does not appear that any examining medical professional had ordered a nerve conduction study of Ms. Talley or had offered an opinion as to the extent of the limitation caused by her peripheral neuropathy. On remand, the Commissioner should consider the effect, if any, that Ms. Talley's peripheral neuropathy in her legs, hands, and feet has on her residual functional capacity.

3. Hip Pain

Ms. Talley alleges that it was error for the ALJ not to conclude that her hip pain was a severe impairment. The ALJ acknowledged Ms. Talley's complaints of hip pain at various points in his opinion. He noted that Ms. Talley complained of hip pain to Dr. Turner, who recorded in treatment notes that Ms. Talley had a right hip that "pops out at times."

The ALJ also acknowledged that Ms. Talley was examined by Owen Kelly, M.D., at Arkansas Orthopaedic Institute in November, 2007.  Dr. Kelly took x-rays of Ms. Talley that revealed some degenerative disc disease.  On examination, he noted that she had normal gait, but tenderness of the greater trochanter bursa and around the lumbosacral area. He diagnosed low back pain, degenerative disc disease, and right leg radiculopathy. He ordered an MRI of Ms. Talley's lumbar spine, but she reported to Dr. Turner that she was unable to have the test because of her financial situation.

On October 2, 2008, Ms. Talley complained of hip pain during a visit to Stanley Teeter, M.D., at River Valley.  She was diagnosed with degenerative arthritis in her hip. Dr. Teeter prescribed Etodolac but, as the ALJ noted, that medication was discontinued due to gastritis.

At her hearing, Ms. Talley testified that Dr. Teeter had told her she had "bone against bone" on her right hip, and that her hip socket was degenerated.  She stated that he had advised her to keep as much weight as possible off of it, so she used a cane.  Additionally, Ms. Talley testified that she was not able to bend down to pick up objects that dropped on the floor.  She relied on her brother or mother to come to her house and do that for her.

The ALJ discounted the effects of Ms. Talley's hip pain, noting that no surgical treatment was recommended. However, Dr. Kelly, the orthopedic specialist, had ordered an MRI in order to have a complete work-up on Ms. Talley, but she was not able to have the test because of her limited financial resources. She never returned to Dr. Kelly, but instead continued to seek treatment for hip pain from her general practitioners at the free clinic.

Further, the ALJ noted that none of Ms. Talley's doctors had restricted her activities. However, Ms. Talley's testimony contradicts this assertion. She testified that Dr. Teeter had advised her to keep as much weight off of her hip as possible. The ALJ's opinion does not offer any explanation for discrediting this testimony.

Further, Dr. Russell, one of Ms. Talley's treating physicians, stated that Ms. Talley was unable to sit or stay in one position for an extended period of time. While the ALJ did not have Dr. Russell's assessment at the time he wrote his opinion, the Court may consider that opinion, which was available to, and considered by, the Appeals Council. The court's role is to determine whether the ALJ's decision is supported by substantial evidence including the evidence submitted after the determination was made.

The ALJ's conclusion that Ms. Talley could perform sedentary work and could occasionally climb, balance, crawl, kneel, stoop, and couch is not supported by substantial evidence in the record.

4. Mental Impairments

Ms. Talley also claims that the ALJ erred in assessing her mental impairments. The ALJ concluded Ms. Talley had moderate restriction in activities of daily living; in her social functioning; and in concentration, persistence, and pace.  He noted that she was hospitalized in 2001 following a suicide attempt.  The ALJ found that Ms. Talley's mood disorder was a severe impairment, but he concluded that she maintained the residual functional capacity for unskilled work.

Ms. Talley points out that the ALJ declined to discuss the mental consultative examination performed by Don Ott, Psy.D., on September 17, 2008.  Dr. Ott observed that, during the examination, Ms. Talley's affect was rigid and flat. He stated that she made very little eye contact, and that her voice was tired and resigned. She seemed distracted and talked excessively during the evaluation.  Dr. Ott concluded that Ms. Talley's social interaction was "fairly limited."  Her concentration was impaired, and her capacity to cope with the mental demands of work was deficient. Dr. Ott diagnosed Ms. Talley with major depressive disorder, recurrent, moderate and assigned a GAF score of 50-60.

The Commissioner points out that the ALJ addressed Dr. Ott's opinion by stating, "the opinions of the claimant's examining and treating physicians are given substantial weight consistent with 20 C.F.R. 404.1527." Further, he argues that Dr. Ott's opinion is not contradictory to the ALJ's assessment of Ms. Talley's residual functional capacity, pointing out that Dr. Ott "never opined as to Plaintiff's actual limitations in concentration or any work-related domain."

The ALJ's handling of Dr. Ott's opinion was inadequate. As explained in Social Security Ruling 96-6p, administrative law judges and the Appeals Council are not bound by findings made by State agency or other program physicians and psychologists, but they cannot ignore these opinions and must explain the weight given to the opinions in their decisions. SSR 96-6p (1996). Dr. Ott's opinion that Ms. Talley's concentration was impaired and that her ability to cope with the mental demands of work was deficient should have at least been addressed by the ALJ in his opinion.

The ALJ's assessment of Ms. Talley's treatment records was also deficient. In his opinion, the ALJ based his residual functional capacity assessment on the July, 2008 assessment of Richard H. Sundermann, Jr., M.D. (Tr. 443-44) Dr. Sundermann recounted Ms. Talley's history of depression and anxiety. He noted that she had been unable to afford Effexor and had switched to a generic, but had been unable to afford even an adequate dose of the generic drug. He diagnosed Ms. Talley with moderate, recurrent major depressive disorder and prescribed Effexor, which he could supply to her through a patient assistance program.

The ALJ states the Effexor resulted in fewer suicidal thoughts and an improved mood. He summarized the remaining treatment notes by stating that Ms. Talley continued to attend therapy sessions and medication management, "with a few more changes in the medications and improvement of her mood." Based on this analysis of Ms. Talley's treatment records, the ALJ concluded that she could perform unskilled work.

The ALJ's assessment that Ms. Talley's depression and anxiety were controlled with medication and therapy is not supported by substantial evidence in the record. In April, 2008, Ms. Talley complained of increased anxiety and depression to Dr. Turner. He referred her to Counseling Associates noting that, "[s]he is not actually suicidal but needs more intensive care for depression than I can provide alone."  In May of 2008, Ms. Talley called Dr. Turner's office seeking samples of Effexor because she could not purchase her medication.  He was unable to provide samples of Effexor and changed her medication to Cymbalta.

On June 4, 2008, Ms. Talley presented to Counseling Associates complaining of anxiety and depression since she was a child. She reported daily symptoms of depression and anxiety, stating that her social anxiety was so severe that she remained isolated and felt like a failure. She was initially diagnosed with major depressive disorder, recurrent, moderate, without psychotic features, and anxiety disorder with agoraphobia. She was assigned a GAF score of 50. (Tr. 331-336)

On July 9, 2008, Dr. Sundermann evaluated Ms. Talley. He noted that she had a difficult time digesting her food and medicine because she had undergone gastric bypass surgery in 2001. He stated that Prozac, which Ms. Talley had previously taken with good result, had stopped working. She reported a failed suicide attempt years earlier, which had resulted in her being psychiatrically hospitalized for seven days.  Dr. Sundermann prescribed Effexor XR and therapy.

On August 26, 2008, Ms. Talley began therapy with Erin Willcutt, LAC. On September 8, 2008, Ms. Talley was evaluated by Sam Hernandez, APN. Progress notes from the visit indicate that Ms. Talley reported that her depression seemed worse and that she wanted to stay in bed most of the time.  She was observed to have a flat affect and admitted to having fleeting suicidal thoughts with a plan at times. Nurse Hernandez increased her Effexor, and Ms. Talley agreed to allow her brother to help her manage her medications.

During a therapy session on September 12, 2008, Ms. Talley seemed to be doing better.  But on October 1, 2008, her therapist noted that her response to treatment has been "marginal," and her anxiety level was very high.  On October 6, 2008, Ms. Talley returned to Nurse Hernandez, who noted that she seemed to be doing quite a bit better.

Ms. Talley returned to see Ms. Willcutt on October 14, 2008. Ms. Willcutt noted that Ms. Talley seemed to be doing a little better, but still has difficulty getting motivated to do things to improve her situation.  During visits on November 12, 2008, and December 9, 2008, Ms. Talley reported doing better.  On December 11, 2008, Nurse Hernandez diagnosed major depressive disorder, recurrent, moderate and continued her on Effexor and individual therapy.

On January 15, 2009, Ms. Talley reported feeling a little more depressed, but she returned on February 4, 3009, to report feeling better.

Ms. Willcutt noted that at her session on March 6, 2009, Ms. Talley had a depressed mood. She noted that Ms. Talley was not doing as well as she had been at her last visit and reported feeling very depressed after her mother had yelled at her.

Ms. Talley was examined by Roy Ragsdill, M.D., on April 7, 2009. Ms. Talley complained to Dr. Ragsdill of problems with her mother and social anxiety. He suggested adding dependent personality traits to her diagnosis and noted that Ms. Talley had only a "partial response to Effexor" but that he was "reluctant" to change her medications.  He continued her medications and suggested an increase in therapy to weekly.

Ms. Willcutt reported that on April 21, 2009, Ms. Talley's response to therapy was "minimal" and her thought patterns were "very negative." Ms. Willcutt suggested that they increase their sessions.

On May 5, 2009, Ms. Talley was noted to have a very depressed mood, negative thought process, and very tearful behavior. Ms. Talley admitted to thoughts of wanting to die and not wanting to go on, but denied any plan or intent to harm herself. Ms. Willcutt discussed possible acute care with Ms. Talley, but she rejected the idea because she had formerly worked at the acute unit and felt this would make her feel like more of a failure.

Ms. Willcutt noted that cognitive therapy was minimally successful and noted her intention to meet with her case manager and discuss the case with Ms. Talley's psychiatrist.  Ms. Willcutt recommended an increased level of care for Ms. Talley with weekly therapy and meetings twice per month with her case manager.

Notes from Ms. Talley's May 20, 2009 therapy session indicate that she exhibited depressed mood, negative thought process, and no change in behavior of functioning. On June 16, 2009, Dr. Ragsdill examined Ms. Talley. He noted that her mood was somewhat better, but discussed with her the possibility of adding lithium as an augmentation to her treatment. Ms. Talley rejected the idea.

Notes from Ms. Talley's therapy session with Ms. Willcutt on November 18, 2009, indicate that Ms. Talley's response to therapy was not positive.  She stated, "Brenda is very depressed and apathetic about her current living situation. She was very negative in session and reports having no energy to do or work on current situation. She reports feeling like `Brenda' is slipping away."  Ms. Willcutt noted that "Brenda is isolating and avoiding friends, family, and appointments when possible." She recommended that Ms. Talley increase the frequency of her therapy sessions and case management appointments.

Ms. Willcutt met with Ms. Talley again on December 9, 2009.  She noted that Ms. Talley's mood was depressed and overwhelmed; her thoughts were negative; and her behavior was anxious. Ms. Talley reported difficulties living with her mentally ill mother and brother. Ms. Willcutt noted that Ms. Talley's activity level was "significantly reduced."

On December 9, 2009, Ms. Talley was also seen by her psychiatrist, Dr. Ragsdill. He noted that Ms. Talley was walking with a cane, was anxious, and did not want to go out much. He assessed that she was having an "incomplete response" to her antidepressant regimen. He increased her Effexor to the maximum dose and added lithium.

In a treatment and prognosis summary dated December 13, 2009, Ms. Willcutt noted that Ms. Talley's depression and anxiety had increased over the past several months. She pointed out that Ms. Talley's thought patterns were increasingly negative and her anxiety was more apparent. She stated that she had agreed with her current diagnosis of major depressive disorder, recurrent, moderate to severe and anxiety disorder NOS and stated that, in her opinion, Ms. Talley's prognosis was guarded, due to the recurrent nature of her mental disorder and severe stressors.

Evidence from treating sources are generally accorded great weight because they are most able to provide a longitudinal picture of a claimant's impairments. 20 C.F.R. § 416.927. The ALJ had access to Ms. Talley's treatment records from Counseling Associates through June, 2009, but opted to focus on the first few months of her treatment, when she showed some signs of improvement. The Appeals Council had access to Ms. Talley's records through December, 2009, but concluded that the information did not provide a basis for changing the ALJ's decision. The Court disagrees.

The treating source records, taken as a whole, indicate that Ms. Talley's depression and anxiety had not improved on medication but, in fact, steadily declined after March of 2009. The ALJ erred by failing to address Dr. Ott's opinion and by relying on a six-month snapshot of Ms. Talley's treatment records when assessing her mental residual functional capacity.

IV. Conclusion

After consideration of the record as a whole, the Court concludes that the decision of the Commissioner is not supported by substantial evidence. The Commissioner's decision is reversed and remanded for action consistent with this opinion. 

IT IS SO ORDERED.