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Administrative – Social Security – Disability – Chronic Depression – Weight to Psychiatrist’s Opinion – Cherry-Picked Medical Record

Administrative – Social Security – Disability – Chronic Depression – Weight to Psychiatrist’s Opinion – Cherry-Picked Medical Record

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In denying disability benefits to plaintiff, who has suffered from and been treated for chronic depression for many years, the administrative law judge erred in according little weight to the opinion of plaintiff’s treating psychiatrist and in cherry-picking the few good moments represented in plaintiff’s medical record while ignoring the toll that her persistent, very symptomatic depression takes on her daily life.

We reverse the Social Security Commissioner’s denial of benefits and remand with instructions to award benefits to plaintiff.


Plaintiff’s struggle with depression began at age 18. In 1999, when plaintiff was her 30’s, she started seeing her psychiatrist, Dr. Beale. Plaintiff also sees a psychotherapist.

Plaintiff has long been plagued by suicidal thoughts, but she resisted them because of her children. One night, after her children neared adulthood, plaintiff took an overdose of pills and had to be hospitalized. Although she initially said she had just wanted a good night’s sleep, she eventually admitted that this was a suicide attempt.

As plaintiff’s symptoms waxed and waned, Dr. Beale adjusted her medications. After her suicide attempt and further unsuccessful medication adjustments, he recommended either Electro Convulsive/Shock Therapy or Transcranial Magnetic Stimulation (TMS). Plaintiff tried TMS and had a short-lived improvement in her symptoms.

Plaintiff applied for Social Security Disability Insurance benefits. The administrative law judge (ALJ) rejected her application, and the Commissioner of the Social Security Administration upheld the ALJ’s rejection.


The ALJ relied on the opinions of doctors who reviewed plaintiff’s medical record but did not examine her. The ALJ gave little weight to Dr. Beale’s opinion. Although Dr. Beale’s opinion briefly mentioned an issue reserved for the Commissioner – plaintiff’s inability to hold down a job – this did not justify the ALJ’s refusal to give Dr. Beale’s opinion proper weight.

Before declining to give the treating psychiatrist’s opinion controlling weight, the ALJ was required to – but did not – consider each of the factors set out in 20 C.F.R. § 404.1527(c).

The ALJ did consider some of the factors; however, in considering one such factor, he maintained that plaintiff’s treatment history was “routine and conservative.” That is simply not true. Especially after plaintiff’s suicide attempt, the record shows a rigorous treatment program with more frequent visits and medication management, leading eventually to 36 rounds of TMS. The treatment plaintiff received was anything but routine and conservative.

In determining that Dr. Beale’s treatment notes did not indicate any significant symptoms that would render plaintiff unable to perform basic work activities, the ALJ cherry-picked from those notes plaintiff’s always-brief improvements and ignored her dysthymic moods, anxiety, low energy, crying spells and self-doubt. Dr. Beale’s treatment notes reveal that plaintiff suffers from significant and severe symptoms that would undoubtedly hinder her from performing even basic work activities.

We recognize that a reasonable mind might find that Dr. Beale’s opinion was inconsistent with the record’s other medical evidence, particularly the non-examining physicians’ findings, and therefore the ALJ was justified in not giving Dr. Beale’s opinion controlling weight. Yet, we find error in the “little weight” afforded for two particular reasons: (1) the ALJ failed to articulate what evidence led him to his decision and (2) the ALJ erred in extending more weight to the non-examining physicians’ opinions than to Dr. Beale’s.

This failure to afford proper weight to the opinion of the treating physician justifies reversal.

In addition, the ALJ did not properly evaluate plaintiff’s subjective complaints. An ALJ “will not disregard [a claimant’s] statements about the intensity, persistence, and limiting effects of symptoms solely because the objective medical evidence does not substantiate the degree of impairment-related symptoms alleged by the individual.” SSR 16-3p, 2016 WL 1119029, at *5.

Plaintiff was entitled to rely entirely on subjective evidence to demonstrate that her pain was sufficiently persistent and severe to support a disability finding. The record contains no shortage of such evidence.

In addition to her statements in the record, plaintiff testified to being constantly clouded by an impending sense of doom, she mentioned that her daily routine consisted of swallowing a cocktail of pills followed by returning to her bed or the couch where she either slept or watched re-runs on TV all day. She found it difficult to have conversations with others because she “tear[ed] up a lot.”

She testified that her husband and children do all of the housework and her children no longer feel as if they have a mother. Plaintiff stated that her symptoms have worsened, and she thinks about suicide and death every day because there is no “light at the end of the tunnel.” For those reasons, she claimed she would not be a dependable employee because her “fatigue, memory loss, anxiety, and severe sadness” make it impossible for her to work.

In Arakas v. Commissioner, Social Security Administration, 983 F.3d 83 (4th Cir. 2020), we held that ALJs could not rely upon the absence of objective medical evidence to discredit “a claimant’s subjective complaints regarding symptoms of fibromyalgia or some other disease that does not produce such evidence.” Today, we hold that depression—particularly chronic depression—is one of those other diseases.

Because the ALJ improperly increased plaintiff’s burden of proof in requiring that her subjective statements be validated by objective medical support, we must find error.

In support of disregarding plaintiff’s subjective statements, the ALJ impermissibly cherry-picked from the record, highlighting plaintiff’s good moments and bypassing the bad. If analyzed correctly, plaintiff’s depression demonstrated both marked and extreme limitations that would instantly qualify her as disabled. As such, we conclude that substantial evidence does not support the ALJ’s decision that plaintiff was not disabled.

Finally, substantial evidence does not support the ALJ’s conclusion that plaintiff did not meet or equal the relevant listing criteria. Instead, substantial evidence demonstrates that plaintiff meets the disability criteria and therefore should be found disabled.

Because substantial evidence in the record clearly establishes plaintiff’s disability, remanding for a rehearing would only delay justice. We therefore reverse the Commissioner’s decision and remand with instructions to grant disability benefits.

Shelley C. v. Commissioner of Social Security Administration (Lawyers Weekly No. 001-026-23, 48 pp.) (Roger Gregory, C.J.) No. 21-2042. Appealed from USDC at Florence, S.C. (Terry Wooten, S.J.) Robertson Wendt and Sarah Bohr for appellant; Maija DiDomenico, Brian O’Donnell, Thomas Moshang, Corey Ellis and Marshall Prince for appellee. 4th Circuit

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