Reeves v. Astrue

Filing 22

MEMORANDUM OPINION. Signed by Honorable Charles S. Coody on 3/31/10. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION M A X IE D. REEVES, P l a in tif f , v. M IC H A E L J. ASTRUE, C o m m is s io n e r of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C I V IL ACTION NO. 2:08cv655-CSC (WO)

M E M O R A N D U M OPINION I . Introduction T h e plaintiff challenges the Commissioner's denial of disability and supplemental s e c u rity income benefits for the closed period from April 8, 1995 to February 1, 1999. A b rief recitation of the procedural history of the case is necessary to understand the court's re s o lu tio n of this matter. On March 26, 1999, the plaintiff, Maxie D. Reeves ("Reeves"), applied for disability in s u ra n c e benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., a n d for supplemental security income benefits under Title XVI of the Social Security Act, 4 2 U.S.C. § 1381 et seq., alleging that he was unable to work because of a disability. His a p p lic a tio n was denied at the initial administrative level. Reeves then requested and received a hearing before an Administrative Law Judge ("ALJ"). Following the hearing, the ALJ c o n c lu d e d that the plaintiff has severe impairments of "lumbar radiculitis; sciatica; status p o s t alcohol abuse; status post polysubstance drug abuse; and recurrent major depression."

(R . 19). According to the ALJ, Reeves could not return to his past relevant work as a welder, iro n worker or kitchen worker. On December 21, 2000, the ALJ issued a partially favorable d e c is io n in which the ALJ determined that Reeves was disabled since February 1, 1999 but n o t prior to that date. (R. 16). "Since February 1, 1999, the evidence demonstrates that the c la im a n t has been drug and alcohol free; however, the evidence further demonstrates that sinc e that time, the claimant has had a severe impairment at Listing level." (R. 23). R e e v es appealed the ALJ's decision to the Appeals Council, requesting that the A p p e a ls Council review the ALJ's decision. The Appeals Council rejected the request for r e c o n sid e ra tio n . The ALJ's decision consequently became the final decision of the

C o m m issio n er of Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 1 3 1 (11 th Cir. 1986). Reeves then appealed the Commissioner's partial denial to this court. O n September 15, 2003, on the motion of the Commissioner, the court remanded the c a s e pursuant to sentence four of section 205(g) of the Social Security Act, 42 U.S.C. § 4 0 5 (g ), to allow the ALJ to u p d a te the medical records from all treating sources and obtain consultative e x a m i n a t io n s , as needed. In addition, a supplemental hearing will be c o n d u c te d which will include additional testimony from Plaintiff, testimony f ro m a medical expert with a speciality in mental disorders, and additional te stim o n y from a vocational expert which will be based on a hypothetical w h ich includes all of the limitations established by the record. The ALJ will is s u e a new decision for the period at issue, which reevaluates the severity of e a ch of the impairments established in the record, including diabetes and

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social Security matters were transferred to the Commissioner of Social Security.

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d e p re ss io n and, if pertinent, determine the issues of drug and alcohol addiction (D A & A) under the process outlined in 20 C.F.R. § 404.1535 and § 416.935. (R . 750 & 755). O n June 12, 2004, on the first remand, the Appeals Council affirmed the ALJ's f in d in g that Reeves was disabled since February 1, 1999 but vacated the decision as it a p p lied to the time period before February 1, 1999.2 (R. 746). The Appeals Council rem an d ed the matter to the ALJ for further proceedings to consider whether Reeves suffers f ro m a mental impairment; to properly evaluate the severity of his diabetes mellitus and his su b jectiv e complaints; and to properly assess his residual functional capacity. (R. 747). A f ter a hearing on April 26, 2005, the ALJ concluded that Reeves had severe impairments o f "lumbar radiculitis; sciatica; status post alcohol abuse; status post polysubstance drug a b u se ; and recurrent major depression." (R. 738). The ALJ further concluded that Reeves c o u ld not perform his past relevant work as welder, iron worker, or kitchen worker. (R. 7 4 1 ). Nonetheless, the ALJ concluded that Reeves was not disabled because he "had the re sid u a l functional capacity to perform jobs existing in significant numbers in the national e c o n o m y." (Id.). T h e plaintiff appealed the ALJ's decision to the Appeals Council, requesting the A p p e a ls Council again review the ALJ's decision. The Appeals Council rejected the request f o r reconsideration, and the ALJ's decision again became the final decision of the C o m m is s io n e r. Reeves then appealed the Commissioner's denial of benefits for the period
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Reeves alleged that he was disabled beginning on April 5, 1995.

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f ro m April 8, 1995 to February 1, 1999, to this court. O n July 28, 2006, on another motion to remand by the Commissioner, the court again re m a n d e d this case pursuant to sentence four of 42 U.S.C. § 405(g) for consideration of the e f f e c ts of Reeves's diabetes on his ability to work. (R. 864-67 & 872-73). On remand from th e court, the Appeals Council directed a different ALJ to sp e c if ica lly make a determination at step two of the sequential evaluation with r e sp e c t to [Reeves's] diabetes. The Administrative Law Judge will also s p e c if ic a lly consider any limitations resulting from [Reeves's] diabetes, and c o n s id e r this impairment in combination with [Reeves's] other impairments. (R . 873-74). F o llo w in g a third administrative hearing before a different ALJ, the ALJ concluded that, between April 8, 1995 and February 1, 1999, Reeves had the following severe im p a i rm e n t s: "drug and alcohol abuse, spondylolisthesis, gastroesophageal reflux disease w ith acute episodes of pancreatitis, diabetes mellitus with poor medical compliance, and m a jo r depressive disorder with psychosis." (R. 834). The ALJ further concluded that Reeves c o u ld not perform his past relevant work as an iron worker. (R. 849-50). Nonetheless, the A L J concluded that Reeves was not disabled because "when the effects of alcohol and drug a b u se are factored out for the period between April 8, 1995, to February 1, 1999, [he] was ca p ab le of making a successful adjustment to other work in that exists in significant numbers in the national economy." (R. 851). Reeves appealed the ALJ's decision to the Appeals C o u n c il, requesting the Appeals Council review the ALJ's decision. The Appeals Council re je c te d the request for reconsideration, and the ALJ's decision consequently became the 4

fin al decision of the Commissioner. T h e case is now before the court for review pursuant to 42 U.S.C. §§ 405 (g) and 1 6 3 1 (c )(3 ) . Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have c o n se n te d to the United States Magistrate Judge conducting all proceedings in this case and o r d e r in g the entry of final judgment. Based on the court's review of the record in this case a n d the briefs of the parties, the court concludes that the decision of the Commissioner s h o u ld be reversed and this case remanded for an award of benefits. I I . Standard of Review U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le 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 o f not less than 12 months . . . To make this determination,3 the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920. (1 ) Is the person presently unemployed? (2 ) Is the person's impairment severe? (3 ) Does the person's impairment meet or equal one of the specific im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? (4 ) Is the person unable to perform his or her former occupation? (5 ) Is the person unable to perform any other work within the economy?

A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

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A n affirmative answer to any of the above questions leads either to the next q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not d is a b le d ." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11 th Cir. 1986).4 T h e standard of review of the Commissioner's decision is a limited one. This court m u s t find the Commissioner's decision conclusive if it is supported by substantial evidence. 4 2 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11 th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of th e record which support the decision of the ALJ but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11 th Cir. 1986). [ T h e court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11 th Cir. 1987).

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental security income case (SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).

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I I I . Procedural History A . Introduction R ee v es was 41 years old at the time of onset and 54 years old at the time of the third d e c is io n of the ALJ. (R. 850-51). He completed the eighth grade and can read, write and do sim p le mathematics. (R. 34). Reeves's prior experience includes work as an iron worker, w e ld e r and kitchen worker. (R. 61). B. Plaintiff's Claims A s stated by Reeves, he presents the following two issues for the Court's review: I. W h e th e r the Commissioner's ALJs applied improper legal s ta n d a rd s in concluding that Mr. Reeves did not meet Listing 1 2 .0 4 before February 1999. W h e th e r the ALJ improperly failed to give controlling weight to th e opinion evidence of Mr. Reeves' treating physician.

II.

(P l's Mem. Br., doc. # 11, at 8). I V . Discussion T h e court conducts a de novo review of the Commissioner's legal conclusions. See L e w is v. Barnhart, 285 F.3d 1329, 1330 (11 th Cir. 2002). "Further, on review, there is no p re su m p tio n "that the Commissioner followed the appropriate legal standards in deciding a c la im for benefits or that legal conclusions reached were valid. Instead, we conduct an e x a ctin g examination of these factors."" Davis v. Astrue, 287 Fed. Appx. 748, 752 (11 th Cir. 2 0 0 8 ) quoting Miles v. Chater, 84 F.3d 1397, 1400 (11 th Cir.1996).

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A . Relevant Medical Treatment during the time period at issue O n July 22, 1994, Reeves was admitted to the Veterans Administration ("VA") h o s p ita l for drug and alcohol treatment. He was diagnosed with "drug dependence, crack c o c ain e , continuous" use, "alcohol dependence, continuous" use, and "chronic low back p a in ." (R. 183). He was discharged on September 2, 1994. (Id.). At that time, a treatment n o te indicated that Reeves was "employable[, but to a]void back strain." (R. 184). R e e v e s was admitted to the VA hospital again on April 8, 1995. (R. 185). He was d iag n o se d with "Dythymia, Alcohol dependence, Crack cocaine dependence, Personality d is o rd e r, Chronic back pain bilateral S1 radiculopathy." (Id.) His conditions were severe a n d his GAF score was 50.5 (Id.). He was prescribed Feldene for back pain, Zoloft6 for d e p re ss io n , and Trazodone7 for depression and insomnia. (R. 185). Reeves was discharged f ro m the VA on May 10, 1995. (Id.). At that time, his depression was responding to m e d ic a ti o n , and his condition was stabilized. (R. 186-87). "[D]epression gradually

im p ro v e d with a combination of chemotherapy, hospital milieu and abstinence from s u b s ta n c e abuse." (Id.) Between 1995 and 1998, while living in Tennessee, Reeves received treatment for

The Global Assessment Functioning Scale considers the psychological, social, and occupational functioning of an individual suffering from mental illness. A score of between 41 and 50 indicates serious symptoms or serious impairments in social, occupational, or school functioning. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994).
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Zoloft is an antidepressant used to treat major depressive disorder in adults. Trazodone is an antidepressant used to treat major depressive episodes.

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d e p re ss io n for two years.8 (R. 253). Reeves was hospitalized again on January 27, 1998 for " M a jo r depression, recurrent" and "Dysthymic disorder." (R. 191). At that time, it was n o te d that he had a "history of polysubstance abuse." (Id.) On admission, Reeves

ac k n o w led g ed that he had stopped taking his anti-depressant medication. (Id.). He was d e p re ss e d , his motor skills were slow, and his affect "was flat, somewhat tearful and d e p re ss e d . . . . His insight and judgment were impaired" (R. 191-92). Although Reeves s t a t e d that he last used cocaine and marijuana a month before his admission, his major p ro b le m was depression. (R. 254, 256). Reeves admitted that he used cocaine "to get relief f ro m the depression." (R. 247). Reeves denied alcohol use. (R. 252). A urinalysis test for d ru g s was negative. (R. 192). His initial diagnoses included "major depression, alcohol abuse, in present remission, an d cocaine abuse, last [use] 1 mo[nth] ago." (R. 247). A treatment note indicates "[h]istory o f long term treatment for depression and one suicide attempt by overdose of medication." (R . 251). At the time of his admission, Reeves's GAF score was between 41 and 50. (R. 2 4 9 ). He was experiencing severe psychiatric stressors including chronic pain, unsafe living c o n d itio n s and unemployment. (Id.). His dominant complaints were depression, back pain, a n d insomnia. (Id.). He was diagnosed with major depression "with preoccupation with so m atic problems." (R. 246). Reeves was prescribed Trazodone and Zoloft. (R. 247). R ee v es remained hospitalized and received treatment until March 18, 1998. (R. 257).

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These records were not included in the 1328-page record provided to the court.

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D u rin g treatment, it was noted that Reeves was attempting to mask his depression. (R. 239). A f te r a week of treatment on anti-depressants, psychological testing revealed the following. T h e veteran was administered the Minnesota Multiphasic Personality In v e n to ry­ II, the Million Clinical Multiaxial Inventory-II, the Beck Depression In v e n to ry, the Beck Anxiety Scale, and the Beck Hopelessness Scale. Results o f the MMPI-2 indicate that the veteran endorsed items in an extremely d e f e n siv e fashion. We refer to this attempt to look better off psychologically th a n is in fact the case "faking good." The results of the clinical scales in d ic a te a person who is likely to present with somatic complaints. Rather than b e in g grossly incapacitated in functioning he is likely to continue functioning b u t at a reduced level of efficiency. He may make excessive use of denial, p ro jec tio n , and rationalization, and blame others for his difficulties. He is lik e ly to prefer medical explanations for his symptoms and lack insight into p s yc h o lo g ic a l factors underlying his symptoms. He may have a strong need f o r attention, affection, and sympathy. Social relationships are likely to be s h a llo w and superficial. A compliant attitude towards authority and a tendency to be controlling with everyone else is likely. He tends to keep his emotions in check. Beck scores indicate mild to moderate levels of anxiety and d e p re ss io n and hopelessness scale score falls within the normal range. P syc h o sis is not supported by this assessment. (R . 233). R ee v e s was assigned to work in the Print Clinic on February 11, 1998.9 (R. 216). He b e g a n work on February 18, 1998. (Id.). On February 19, 1998, Reeves formally sought a d m is s io n to the VA's supported employment program. (R. 223-24). On February 20, 1998, the doctors refused medical clearance. (R. 224). Received results of the EMG from Dr. Umakantha. His comments indicate th a t vet may be in a work setting as tolerated except prolonged standing, no b e n d in g or stooping, no prolonged sitting and may need rest breaks to stand a n d stretch.
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The record does not disclose why Reeves was assigned work before he was approved to do that

work.

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D is c u ss e d the above with Dr. Kitchner and feel that considering these medical p re c au t io n s , that it is not advisable to accept Mr. Reeves in the supported e m p l o ym e n t program since the treatment activities that are available have the p h ysical requirements which Dr. Umakantha advises against. If Mr. Reeve's (sic ) medical problems can be resolved, reconsideration will be given to a c c e p tin g him into the supported employment program. (R . 224). Reeves was discharged from the Print Clinic on March 11, 1998 due to his physical in a b ility to handle the work. (Id.). On March 5, 1998, Reeves was screened and admitted into the VA's thirty day G e n e sis Day Program.1 0 (R. 220-21). Reeves began the Genesis program on March 10, 1 9 9 8 . (R. 218). On March 13, 1998, Reeves took the Beck Depression Inventory again. (R. 2 1 2 ). His score was "indicative of moderate depressive symptoms," notwithstanding his two m o n th s of in-patient psychiatric treatment. (Id.) "The results indicate that [Reeves] is re p o rtin g moderate emotional distress or depression with recent thoughts of suicide. H o w e v e r, he denies current thoughts of self-harm." (Id.). On March 16, 1998, Reeves reported continued depression. (R. 210). By March 23, 1 9 9 8 , the staff was reporting Reeves as being manipulative "to gain attention and m ed icatio n s." (R. 198). On March 24, 1998, although Reeves "[wa]s not looking forward to discharge and desire[d] to remain hospitalized," he met with his treatment team to discuss h is discharge. (R. 195-96). He was reminded of his need to be compliant with medication,

The Genesis Day Program appears to be an intensive community based care psychiatric day program to help veterans integrate into the community.

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a n d to attend his follow up appointments. (R. 195). It was noted that "he will require much re d ire c tio n and frequent reminders as to why he can no longer do things "his own way." (Id.) R e e v es was discharged on March 25, 1998. (R. 193). His medications at the time of d is c h a rg e included Glipizide,1 1 Diphenhydramine Hydrochloride,1 2 Propantheline,1 3 C h lo rz o x a z o n e ,1 4 Levothyroxine,1 5 and Motrin. (Id.). Although Reeves was treated with T ra z a d o n e and Zoloft while hospitalized and warned to continue compliance with his m e d ic a tio n regime, astoundingly he was not prescribed anti-depressant medication when he w a s discharged.16 (Id.; R. 288-89). N o t surprisingly, Reeves was admitted to the VA hospital on July 7, 1998 with " [ r]e c u rre n t depression with suicidal ideas." (R. 258). At that time, he complained that he c o u ld not "live with the pain and depression." (Id.). His mood and affect were depressed a n d his insight and judgment were impaired. (Id.). He denied "abusing any alcohol." (Id.) H is GAF was 40. (Id.). Although his drug screen on admission was positive for benzos, (R. 2 5 9 ), it was noted that "[h]e commendably has not resumed the abuse of alcohol or other m o o d -alterin g substances." (R. 288). His polysubstance abuse was in remission. (R. 284).
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Glipizide is a medication used to treat diabetes. Diphenhydramine is the generic name for Benadryl and is used to treat allergies. Propantheline is a medication used to treat ulcers. Chlorzoxazone is a muscle relaxant. Levothyroxine is a replacement thyroid hormone used to treat hypothyroidism.

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On his second admission to the VA, the staff apparently realized their error of discharging him without medication because Reeves's medications were promptly restarted. (R. 259).

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O n July 16, 1998, during a psychological evaluation, Reeves took the MMPI-II, M C M I-II, Beck Depression Scale, Beck Anxiety Index, State-Trait Anxiety Inventory and th e Beck Hopelessness Scale. (R. 266). Mr. Reeves has a long history of drug abuse. He reportedly used drugs in the s e rv ic e and began using cocaine in 1982. He started smoking crack cocaine a t least 5 years ago and says that cocaine is his "drug of choice" but that he w ill use anything that he can get his hands on. According to the patient, he c o m p lete d the substance abuse program at the Tuscaloosa VAMC twice with h is most recent treatment here in 1994. He claims that he has been mostly free o f drugs and alcohol for 9 months, but he admitted to one episode of drug use a n d one period of alcohol abuse. M r. Reeves was also hospitalized at the Tuscaloosa VAMC in 5/95 and 3/98 o n acute psychiatry for complaints of depression. He has had psychiatric d iag n o se s of dysthymic disorder and major depression as well as personality d is o rd e r, NOS. The patient reports a suicide attempt by overdose about 10 ye a rs ago. M r. Reeves said that he was a steel worker when he hurt his back about 8 years a g o , and he has subsequently been employed in a fabrication shop. His last attem p t at working was 6 months ago.1 7 In addition to back problems, Mr. R e e v e s has diabetes and diverticulosis. * * * M r . Reeves seemed manipulative and evasive in interview, but he was not h o s tile or unfriendly. He did not appear depressed or anxious, and affect was a p p ro p ria te ly animated. There was no evidence of delusional or disordered th in k in g , and the patient did not spontaneously report feelings of paranoia or u n d u e suspiciousness. T e st results were of limited validity because of a strong tendency to overstate h is symptoms. Responses to the Minnesota Multiphasic Personality Inventory2 were indicative of very high levels of emotional distress and somatic p reo cc u p atio n , and the patient reported very severe psychotic symptoms. Mr.
This time would correspond to his attempt to work in the VA print shop while hospitalized for depression.
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R e e v es endorsed 32 out of 33 items on the Depression content scale and 22 of 2 3 items on the Anxiety content scale. He also endorsed a large proportion of ite m s on the Hypochondriasis, Paranoia, and Schizophrenia scales. He re p o rte d ideas of reference and feelings of persecution, and he described h im self as an extremely hostile, angry, and immature person with very severe f a m ily problems. A x i s II symptoms on the Million Clinical Multiaxial Inventory-II were less o v e r-re p o r t e d , so that the results were not technically invalid. The patient d e sc rib e d himself as an emotionally unstable person who is impulsive and selfd e stru c tiv e , and who is prone to chronic emotional distress with possible s u ic id a l or self-injurious behaviors. He is likely to be irresponsible, shallow, an d very self-centered. The patient may also be manipulative and immature w ith little capacity for empathy. V ery high levels of emotional distress were reported on the Beck scales. Mr. R e e v e s endorsed all 20 items on the Beck Hopelessness Scale, which would in d ic a te severe hopelessness and despondency if test results were valid. He als o endorsed severe depression on the Beck Depression Scale and severe a n x iety on the Beck Anxiety Inventory. He indicated that he would like to kill h im s e lf on the Beck Depression Scale. * * *

C o n c lu s io n s & Recommendations T h e results of this assessment suggest symptom exaggeration in a patient with se v e re personality problems. Antisocial, passive-aggressive, and possible b o r d e rlin e personality characteristics are suggested. The patient has a longs ta n d in g drug and alcohol addiction, although he reports some degree of so b rie ty during the last 9 months. There is also a significant problem with c h ro n ic pain, which may be exacerbated by substance abuse, and the patient h a s been diagnosed with major depression in the past. The extent to which p a in is disabling and the current degree of emotional distress are difficult to ev alu a te because of symptom exaggeration. The patient does not seem very d e p re ss e d at present, and he did not appear to be in constant pain, though it is q u ite possible that his back injury and pain may prevent him from performing m a n y types of activities. Anger may be a serious problem for the patient. T h e r e appear to be numerous stressors in the life of the patient, including fa m ily problems and vocational limitations, and he appears to be immature 14

a n d self-centered and to have very poor coping skills. Although there may be m inim a l distress when hospitalized, emotional disturbances may become much m o r e evident when he returns home to his old problems. Consequently, re g u la r outpatient counseling following discharge might be beneficial. The p a tie n t does not appear to be suicidal at the present time, but under stress and th e influence of alcohol or drugs, there is the potential for self-destructive g e s tu r e s or attempts. (R . 264-65) (emphasis and footnote added). R e e v e s was discharged on July 16, 1998 with the following medications: P r o p o x yp h e n e /A P A P ,1 8 Daypro,1 9 Griseofulvin,2 0 Glipizide, Metformin,2 1 Paroxetine,2 2 D esyrel,2 3 and Dimetapp.2 4 (R. 259-60). R e e v es was admitted to the VA hospital again on February 9, 1999. At that time, he w a s diagnosed with "[m]ajor depression, recurrent, moderate," diabetes, and lumbar s p o n d ylo lys is . (R. 326). His GAF score was 50. There was no indication of drug or alcohol a b u se , and he denied any drug or alcohol use for a year. (R. 353). His "mood was dysthymic an d affect was flat and depressed." (R. 326). Reeves remained hospitalized until February 1 7 , 1999. (R. 326-54).

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Propoxyphene/APAP is a narcotic analgesic used to treat chronic pain. Daypro is an anti-inflammatory medication used to treat chronic pain. Griseofulvin is an antibiotic used to treat different fungi. Metformin is a medication used to treat diabetes. Paroxetine is the generic name for the medication Paxil and is used to treat depression. Desyrel is the brand name for the medication Trazodone and is also used to treat depression. Dimetapp is used to treat allergies and sinus congestion.

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B . Drug and Alcoholism R e e v es attempts to challenge adverse findings in all three determinations for the c lo s e d period at issue. However, the only findings properly before the court are those made b y the ALJ in the third decision rendered on April 15, 2008. The court must determine w h e th e r the ALJ applied the proper legal standards and whether his determination is s u p p o rte d by substantial evidence. The crux of Reeves's arguments is that the ALJ

m is a p p lie d the law when he concluded that Reeves did not meet or equal Listing 12.04 b e f o re February 1999. The ALJ concluded that Reeves was not disabled during the period between April 8, 1 9 9 5 and February 1, 1999. (R. 832). The ALJ determined that "the occupational base was s o severely eroded during the period at issue that [Reeves] was unable to perform other jobs e x is tin g in significant numbers in the national economy when engaged in alcohol and drug a b u s e ." (R. 850). Nonetheless, relying on the testimony of a medical expert, the ALJ c o n c lu d e d that "[w]hen the effects of polysubstance abuse are disregarded, [Reeves'] mental im p a irm e n ts considered singly and in combination, did not meet or medically equal the criteria of listings 12.04 or 12.09." (R. 844-45). For the reasons that follow, the court c o n c lu d e s that the ALJ did not apply the appropriate legal standards, and that his d e te rm in a tio n is not supported by substantial evidence. L is tin g 12.04 deals with affective disorders and depressive syndromes. Listing 12.09 d e a l s with substance and addiction disorders. Listing 12.08 deals with personality disorders.

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In the initial disability determination, the ALJ found that Reeves was disabled since February 1 , 1999. S in c e February 1, 1999, the evidence demonstrates that the claimant has been d ru g and alcohol free; however, the evidence further demonstrates that since that time, the claimant has had a severe impairment at Listing level. However, I am persuaded by the record and testimony, that subsequent to February 1, 1 9 9 9 , the claimant has remained symptomatic of mental impairments (nona lc o h o l and non-drug related) which are attended with findings that meet the c rite ria of § 12.04 of the Listing of Impairments set forth at 20 C.F.R. Part 404, S u b p a rt P, Appendix 1. To be met Medical Listing 12.04 requires an affective d i s o r d e r characterized by a disturbance of mood, accompanied by a full or p a r tia l manic or depressive syndrome. In this case, the claimant has a d e p re ss iv e syndrome. This syndrome must be characterized by at least four of c e rta in enumerated features. In this case the enumerated features which meet th is requirement are anhedonia or pervasive loss of interest in activities, sleep d istu rb a n c e , psychomotor agitation or retardation, decreased energy, difficulty c o n c en tra tin g or thinking, thoughts of suicide, and hallucinations, delusions o r paranoid thinking. These features result in marked difficulties in m a in ta in in g social functioning and deficiencies of concentration, persistence, o r pace resulting in frequent failure to complete tasks in a timely manner. I c o n c lu d e , therefor, that since February 1, 1999, the claimant's impairment is a tte n d e d with the same findings as Medical Listing 12.04, 20 CFR Part 404, A p p e n d ix 1 to Subpart P. (R . 23-24). The ALJ's finding rests on the fact that Reeves had a negative drug test in F eb rua ry 1999. (R. 19). In the determination before the court, the ALJ concluded that Reeves did not meet the L is ti n g 12.04, Affective Disorders, or 12.09, Substance Addiction Disorders, during the a p p lica b le time period because of his on-going polysubstance abuse. (R. 843). The ALJ did n o t consider whether Reeves met Listing 12.08, Personality Disorders despite the fact that h e had been diagnosed as suffering from a personality disorder. (R. 185, 264, 300, 355, 378).

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A review of the medical records demonstrates that the ALJ culled the record for selective e n trie s and ignored evidence that did not support his conclusions. For example, the ALJ does n o t consider any of Reeves's testimony regarding his depression prior to February 1, 1999 b ec au se of his "alcohol/drug dependence and abuse." (R. 848). The ALJ refers to Reeves's 1 9 9 8 stint in a drug rehabilitation program. (Id.). However, Reeves was not hospitalized in 1 9 9 8 for drug treatment. Reeves was hospitalized on July 22, 1994 for detoxification and d rug treatment, which was the last drug rehabilitation program he completed. (R. 183, 901). A l t h o u g h Reeves confessed to using crack cocaine and alcohol when he was h o s p ita liz e d in April 1995, he was admitted for treatment of depression, not drug addiction. (R . 185). Reeves remained hospitalized for treatment of his depression until May 10, 1995. ( I d .) . Reeves was hospitalized again on January 27, 1998 for major depression and

d ys th ym ic disorder. (R. 191). While he had a `history' of polysubstance abuse, his drug s c re e n was negative. (R. 192). He remained hospitalized until March 18, 1998 when he was tra n s f e rr e d into the Genesis Intensive Day Program. (R. 257, 220-21). Reeves was hospitalized again on July 7, 1998 with "[r]ecurrent depression and s u ic id a l ideas." (R. 258). It was noted that his polysubstance abuse was in remission. (R. 2 8 4 ). Reeves remained hospitalized until July 16, 1998. At that time, a psychological a ss e ss m e n t noted that Reeves had some "severe personality problems," including " [ a ]n tis o c ia l, passive-aggressive, and possible borderline personality characteristics." (R. 2 6 4 -6 5 ). The assessment indicated that Reeves was "immature and self-centered," and had

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" v e r y poor coping skills." (Id.). Anger was also an issue for him. (Id.). "Although there m ay be minimal distress when hospitalized, emotional disturbances may become much more e v id e n t he returns home to his old problems." (Id.). Reeves was hospitalized at least two more times for treatment of his depression in F e b ru a ry 1999 and June 1999. Consequently, Reeves's hospitalizations were for treatment o f his recurrent major depression and not for on-going substance abuse. Moreover, the ALJ re lie d on Reeves's negative drug test in February 1999 to conclude that he was no longer u s in g drugs. The court notes that Reeves had a negative drug screen in January 1998, (R. 1 9 2 ), March 1998 (R. 896-97) and February 1999. (R. 892). The ALJ is not free to simply ignore medical evidence, nor may he pick and choose b e tw e en the records selecting those portions which support his ultimate conclusion. The A L J 's failure to mention or consider contrary medical records, let alone articulate reasons fo r disregarding them, is reversible error. Broughton v. Heckler, 776 F.2d 960, 961 (11 th Cir. 1 9 8 5 ). The ALJ compounds his error by relying on the testimony of the medical expert, S yd n e y H. Garner. Dr. Garner testified that Reeves only had two mental impairments during th e time period at issue ­ major depressive disorder with psychosis and "an ongoing p o lys u b s ta n c e abuse diagnosis." (R. 1308-09). The medical expert testified that the only o th e r mental limitation Reeves had during this period was major depression. (R. 1311). The m e d ic a l expert is simply wrong. First, contrary to Dr. Garner's assertion, Reeves was not

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d ia g n o se d with or treated for ongoing polysubstance abuse during the applicable time period. It is undisputed that Reeves had a history of polysubstance abuse. However, the evidence d o e s not support the finding that Reeves's substance abuse continued unabated from 1995 u n til February 1, 1999. The ALJ also relied on the medical expert's testimony that Reeves's "major d e p re ss iv e disorder was less severe after February 1999. His depression would not meet or m e d ic a lly equal section 12.04 of the listing of impairments." (R. 843). This conclusion m a k e s no sense in light of the fact that Reeves was found disabled on February 1, 1999, b e c a u s e he met Listing 12.04. (R. 24). Moreover, during the relevant period, Reeves was a lso diagnosed with a personality disorder (R. 185, 264-65). The medical expert clearly did n o t consider the effects of Reeves's personality disorder, either singly or in combination, w ith Reeves' other mental impairments. Thus, the ALJ erred as a matter of law when he re lie d on Dr. Garner's flawed testimony. Throughout the ALJ's opinion, he relies on selective recitation of the evidence, re f e rrin g only to those records which support his decision. For example, the ALJ points to V A records that Reeves "was considered employable." (R. 848). While the records indicate th a t Reeves was considered employable in 1994,2 5 the ALJ ignores evidence that Reeves was c o n sid e re d unemployable in 1998. On February 20, 1998, the VA doctors refused medical

The ALJ relies on a single treatment note on Reeves's discharge summary in May 1995 that Reeves was "able to work." (R. 186). The ALJ overemphasizes the importance of this note. There is no further explanation of the notation, and no way to tell who made the note. Without more, the ALJ's reliance on the single notation is misplaced.

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c le a ra n c e to Reeves to participate in the VA's own supported employment program. (R. 2 2 4 ). Thus, the mere fact that Reeves may have been employable in 1994 does not translate in to an ability to work in 1998, particularly considering that he was denied permission to w o rk in the VA's own work program. Additionally, although the ALJ refers to Reeves's GAF scores, he does not consider th e relevance of these scores. A GAF score of between 41 and 50 indicates serious s ym p to m s or serious impairments in social, occupational, or school functioning. American P s y c h ia t ric Association: Diagnostic and Statistical Manual of Mental Disorders (4 th ed. 1 9 9 4 ). A rating of 31-40 indicates "some impairment in reality testing or communication . . . OR major impairment in several areas, such as work or school, family relations, judgment, th in k in g , or mood." Haag v. Barnhart, 333 F.Supp.2d 1210, 1214 (N.D. Ala. 2004) (quoting D S M -I V -T R at 34). A GAF of 35 is strong evidence of an inability to work. Haag, supra (c itin g Lloyd v. Barnhart, 7 F.Appx. 135, 2002 WL 31111988 at *1, n. 2 (3 r d Cir. 2002)). O n April 8, 1995, Reeves was admitted to the VA hospital with a GAF score of 50. (R . 185). When he was admitted to the hospital in January 1998, his GAF score was between 4 1 and 50. (R. 249). In July 1998, Reeves's GAF score was 40. (R. 258). When Reeves w as hospitalized in February 1999, his GAF score was 50. (R. 326). Interestingly, Reeves's G A F score in February 1999 was higher than his scores during the time period at issue. W h ile the Commissioner has declined to endorse the GAF scale for "use in the Social S e c u rit y and SSI disability programs," and has indicated that GAF scores have no "direct

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c o rre la tio n to the severity requirements of the mental disorders listings," See 65 Fed.Reg. 5 0 7 4 6 , 50764-65 (Aug. 21, 2000), the scores emphasize the inherent contradictions in the A L J 's determination. Reeves's recurrent major depression and dysthymia were worse prior to February 1, 1999. Even the medical expert testified that Reeves's depression decreased in severity after February 1, 1999, the date he was deemed disabled due to his depression. (R . 1311-12). It follows that if, on February 1, 1999, Reeves met the Listing 12.04 for d e p re ss io n , and his condition was more severe prior to that date, then he must have also met L is tin g 12.04 before February 1, 1999. Inexplicably, the ALJ concluded that Reeves did not m e e t Listing 12.04 prior to February 1999. The ALJ concluded that "[w]hen the effects of alcohol and drug abuse are factored o u t for the period between April 8, 1995, to February 1, 1999, [Reeves] was capable of m a k in g a successful adjustment to other work that exists in significant numbers in the n a tio n a l economy." (R. 851). However, the ALJ failed to properly apply the law when he d id not follow the sequential analysis before considering whether the plaintiff's drug a d d ic tio n was a contributing factor to the disability determination. See Doughty v. Apfel, 245 F .3 d 1274, 1279 (11 th Cir. 2001); Bustamante v. Massanari, 262 F.3d 949, 955 (9 th Cir. 2 0 0 1 ); Drapeau v. Massanari, 255 F.3d 1211, 1214 (10 th Cir. 2001). The governing re g u la tio n s require the Commissioner to first determine whether the plaintiff is disabled b e f o r e considering whether his drug addiction or alcoholism is a contributing factor material to disability. See 20 C.F.R. § 404.1535. See also POMS Section DI 90070.050B1 ("Follow

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th e general disability case development and evaluation process . . . to decide whether the ind ividu al is disabled.") The implementing regulations make clear that a finding of disability is a c o n d itio n precedent to an application of § 423(d)(2)(C). 20 C.F.R. § 4 1 6 .9 3 5 ( a ). The Commissioner must first make a determination that the c la im a n t is disabled. Id. Drapeau, 255 F.3d at 1215 (emphasis added). If a claimant is disabled, but has evidence of drug addiction or alcoholism, the A L J must determine whether the drug addiction or alcoholism is a contributing f a c to r material to the determination of the finding of disability. 20 C.F.R. § 4 0 4 .1 5 3 5 (a ). In making this determination, the ALJ considers whether the c la i m a n t is disabled without the drug addiction or alcoholism. 20 C.F.R. 4 0 4 .1 5 3 5 (b )( 1 ). The ALJ considers which of the disabling conditions would r e m a in should the claimant stop using drugs or alcohol. 20 C.F.R. § 4 0 4 .1 5 3 5 (b )(2 ). If the ALJ determines that the claimant's remaining lim ita tio n s would not be disabling, the ALJ will find that the drug usage or a lc o h o lis m is a contributing factor material to the determination of disability. 2 0 C.F.R. § 404.1535(b)(2)(i). Drugs and alcohol are a contributing factor m a te ria l to the determination of disability when they form the exclusive basis f o r the finding of disability. If there are other grounds for finding the claimant d is a b le d , then drugs and alcohol are not a contributing factor material to the d e ter m in a tio n of disability. 20 C.F.R. § 404.1535(b)(2)(ii). E n g le rt v. Apfel, Case No. 97-1526-CIV-ORL-18C, 1999 WL 1289472, at *8, n.3 (M.D. Fla. J u n e 16, 1999) (emphasis added). See also, Deters v. Commissioner of Social Sec., 301 F e d .A p p x . 886, *1 (11 th Cir. 2008). O n ly after the ALJ concludes that the plaintiff is disabled, should the ALJ consider w h e th e r the plaintiff's drug addiction is a contributing factor material to the disability d e ter m in a tio n . In this case, the ALJ focused on Reeves's polysubstance abuse to discredit h im , and improperly conflated the disability finding with the materiality finding. At no point 23

d id the ALJ determine whether Reeves was disabled without consideration of his drug a d d ic tio n . Because the ALJ did not consider whether Reeves was first disabled, his finding th a t Reeves's polysubstance abuse was a contributing factor material to disability is simply w ro n g . Consequently, the court concludes that the ALJ improperly interjected Reeves's drug a d d ic tio n into the sequential analysis. Thus, the ALJ failed to properly apply the law, and h i s finding that Reeves was not disabled before February 1, 1999 because of his drug abuse is not supported by substantial evidence. M o re o v e r, if the ALJ had properly applied the law and conducted the appropriate a n a lys is , Reeves would have perforce been found disabled under Section 12.04 of the Listing o f Impairments during the applicable time period. See 20 C.F.R. Subpart P, Appendix 1. T h e Listing provides, in pertinent part, that a claimant is disabled if he meets the following c rite ria : § 12.04. Affective Disorders: Characterized by a disturbance of mood, ac co m p an ied by a full or partial manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally involves e ith e r depression or elation. T h e required level of severity for these disorders is met when the req u irem en ts in both A and B are satisfied, or when the requirements of C are s a tis f ie d . A . Medically documented persistence, either continuous or in te rm itte n t, of one of the following: 1 . Depressive syndrome characterized by at least four of th e following: a . Anhedonia or pervasive loss of interest in almost all a c tiv itie s; or b . Appetite disturbance with change in weight; or c. Sleep disturbance; or 24

d . Psychomotor agitation or retardation; or e . Decreased energy; or f . Feelings of guilt or worthlessness; or g . Difficulty concentrating or thinking; or h . Thoughts of suicide; or i. Hallucinations, delusions, or paranoid thinking; . . . * OR * *

C . Medically documented history of a chronic affective disorder o f at least 2 years duration that has caused more than a minimal lim ita tio n of ability to do basic work activities, with symptoms o r signs currently attenuated by medication or psychosocial s u p p o rt, and one of the following: 1 . Repeated episodes of decompensation, each of e x te n d e d duration; . . . Section 12.04 of the Listing of Impairments, 20 C.F.R. Subpart P, App. 1. In December 2000, the ALJ found, and the Appeals Council accepted, that, beginning F eb rua ry 1, 1999, Reeves met Listing 12.04 due to his depressive syndrome. (R. 24). There is no indication in the medical records that Reeves's depression and dysthymia were better b e tw e e n April 8, 1995 and February 1, 1999. In fact, the medical records support a c o n c lu s io n that his depression was worse between those times. Reeves was first hospitalized o n April 8, 1995, for severe depression. (R. 185-86). He was anxious, depressed and e x p e rie n c in g ruminating thoughts. (R. 187-88). He was prescribed Zoloft and discharged o n May 10, 1995. (R. 187). Reeves received treatment for his depression for two years when h e lived in Tennessee. O n January 27, 1998, Reeves was hospitalized again for recurrent major depression.

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(R . 191). He was experiencing insomnia, (R. 249), and he was preoccupied with his somatic p ro b le m s . (R. 246). Reeves remained hospitalized until March 25, 1998 when he was d is c h a rg e d into the Genesis Day Program, an intensive community care psychiatric program. (R . 293). On July 7, 1998, Reeves was hospitalized for recurrent depression with suicidal th o u g h ts . His judgment was impaired, and he was experiencing sleeplessness and

h o p e le s s n e s s . (R. 298). He remained hospitalized until July 16, 1999. The medical records demonstrate that Reeves has suffered from major depression s in c e at least April 1995. During his numerous hospitalizations, he has reported episodes of a n h e d o n ia , insomnia, suicidal thoughts, difficulty concentrating, decreased energy, and f e elin g s of hopelessness and anxiety. His depression spans the time period at issue ­ from A p ril 1995 until February 1, 1999. He experienced at least three episodes of

d e c o m p e n s a tio n , requiring extended hospital stays. Consequently, Reeves was disabled. Following the appropriate sequential analysis, the ALJ would then have considered w h e th e r Reeves remained disabled if he stopped using drugs or alcohol. 20 C.F.R. § 4 0 4 .1 5 3 5 (b )(2 ). In 2000, the ALJ concluded that Reeves's depression was disabling even a f te r he stopped using drugs and alcohol. (R. 24). "Since February 1, 1999, the evidence d e m o n s tra te s that [Reeves] has been drug and alcohol free; however, the evidence further d e m o n s tra te s that since that time, [Reeves] has had a severe mental impairment at Listing le v e l." (R. 23). Consequently, as a matter of law, the ALJ found that Reeves's drug a d d ic tio n was not a contributing factor material to the disability determination. "The key

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f a cto r . . . in determining whether drug addiction . . . is a contributing factor material to the d e t e rm in a tio n . . . is whether we would still find you disabled if you stopped using drugs . . ." 20 C.F.R. § 404.1535(b)(1). Because the ALJ determined that Reeves's depression was d is a b lin g independent of drug or alcohol addiction, his polysubstance abuse could not be a co n tribu tin g factor material to the disability determination. 20 C.F.R. § 404.1535(b)(2)(ii). B e c au s e Reeves meets the requirements of Listing 12.04, and his polysubstance abuse was n o t a contributing factor material to his disability, Reeves should have been found disabled a s a matter of law. See McDaniel, 800 F.2d at 1026 ("An affirmative answer . . . leads . . .to . . . on step three . . . a finding of disability.") In reaching this conclusion, the court has carefully considered whether it should re m a n d this case to the Commissioner for further proceedings, or reverse and remand for an a w a rd of benefits. Reeves originally filed his application for disability benefits in 1999. (R. 8 3 1 ). The ALJ's final determination was issued on April 15, 2008. (R. 852). As noted e a rlie r in this opinion, this is the third time this case has come to this court. While Social S e c u rity proceedings are inquisitorial, not adversarial, see Ingram v. Commissioner of Social S e c . Admin., 496 F.3d 1253 (11 th Cir. 2007), courts have long, routinely assigned evidentiary b u rd e n s to both the claimant and the Commissioner. See, e.g., Johns v. Bowen, 821 F.2d 551 (1 1 th Cir. 1987) (A Social Security claimant bears the initial burden of proving inability to p e rf o rm prior relevant work); Jackson v. Bowen, 801 F.2d 1291 (11 th Cir. 1986) (If a c la im a n t meets the burden of showing he can no longer do his past relevant work, the burden

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s h if ts to the Commissioner to prove that other work exists in the national economy which the c la im a n t can perform). Reeves has met his burden of demonstrating that he meets Listing 1 2 .0 4 and that he is disabled. The Commissioner has failed, three times, to properly apply th e law, and the court concludes that he shouldn't get another chance to get it right. Enough is enough. Accordingly, the court concludes that it is appropriate to reverse the decision of the C o m m is s io n e r so that benefits may be awarded to the plaintiff. See Davis v. Shalala, 985 F .2 d 528, 534 (11 th Cir. 1993) (reversal with award of benefits appropriate where the C o m m is s io n e r has already considered the essential evidence and it is clear that the evidence e s ta b lis h e s disability without any doubt). See also Lamb v. Bowen, 847 F.2d 698, 701 (11 th C ir. 1988) ( failure to apply the correct legal standards is grounds for reversal and an award o f benefits). V. Conclusion A c c o r d in g ly, the decision of the Commissioner will be reversed and the case re m a n d e d to the Commissioner with instructions that benefits be awarded to the plaintiff. A separate order will issue. Done this 31 st day of March, 2010.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

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