Whitman v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION Signed by Judge L Scott Coogler on 08/07/2013. (MSN)

FILED
2013 Aug-07 PM 02:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIE ARTIE WHITMAN,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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2:12-cv-1972-LSC

MEMORANDUM OPINION
I.

Introduction
The plaintiff, Willie A. Whitman, appeals from the decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying his
application for a period of disability, Supplemental Security Income (“SSI”) and
Disability Insurance Benefits (“DIB”). Mr. Whitman timely pursued and exhausted
his administrative remedies and the decision of the Commissioner is ripe for review
pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
Mr. Whitman was fifty-two years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and he has a high school education, as well as training as

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a welder. (Tr. at 29, 62-63.) His past work experiences include employment as a
cleaning machine operator, cable puller, front desk receptionist, groundskeeper,
construction worker, dishwasher, mail sorter, and runner. (Tr. at 86, 87.) Mr.
Whitman claims that he became disabled on November 4, 2008, due to bipolar
disorder, depressive features, suicidal and homicidal tendencies, back pain, gout, and
bronchitis. (Tr. at 66-83, 94, 215, 270.)
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R. §§
404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The
first step requires a determination of whether the claimant is “doing substantial
gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If he or she is, the
claimant is not disabled and the evaluation stops. Id. If he or she is not, the
Commissioner next considers the effect of all of the physical and mental impairments
combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These impairments
must be severe and must meet the durational requirements before a claimant will be
found to be disabled. Id. The decision depends on the medical evidence in the record.
See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If the claimant’s impairments
are not severe, the analysis stops. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

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Otherwise, the analysis continues to step three, which is a determination of whether
the claimant’s impairments meet or equal the severity of an impairment listed in 20
C.F.R. pt. 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the claimant’s impairments fall within this category, he or she
will be found disabled without further consideration. Id. If they do not, a
determination of the claimant’s residual functional capacity (“RFC”) will be made
and the analysis proceeds to the fourth step. 20 C.F.R. §§ 404.1520(e), 416.920(e).
The fourth step requires a determination of whether the claimant’s
impairments prevent him or her from returning to past relevant work. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do his or her past
relevant work, the claimant is not disabled and the evaluation stops. Id. If the claimant
cannot do past relevant work, then the analysis proceeds to the fifth step. Id. Step five
requires the court to consider the claimant’s RFC, as well as the claimant’s age,
education, and past work experience in order to determine if he or she can do other
work. 20 C.F.R. §§ 404.1520(a)(4)(v) 416.920(a)(4)(v). If the claimant can do other
work, the claimant is not disabled. Id.
Applying the sequential evaluation process, the ALJ found that Mr. Whitman
met “the insured status requirements of the Social Security Act through March 31,

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2012.” (Tr. at 39.) She further determined that Mr. Whitman has not engaged in
substantial gainful activity since the alleged onset of his disability. (Tr. at 40.)
According to the ALJ, Plaintiff’s mild degenerative disk disease of the lumbar spine,
arthralgias, organic mental disorder, alcohol dependence, cocaine dependence,
marijuana dependence, bipolar disorder, depressive disorder, and personality
disorder are considered “severe” based on the requirements set forth in the
regulations. (Id.) In addition, the ALJ determined that Plaintiff’s impairments,
including his substance abuse disorders, met section 12.09 of 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Id.) She determined that if Plaintiff stopped the substance
use, the remaining limitations would cause more than a minimal impact on his ability
to perform basic work activities; therefore, he would continue to have a severe
impairment or combination of impairments. (Tr. at 42.) However, she found that if
Plaintiff stopped the substance use, these impairments would neither meet nor
medically equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Id.) The ALJ found that absent consideration of substance abuse,
Plaintiff possessed the residual functioning capacity (“RFC”) to perform the
following:
light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) except the
claimant can stand/walk six hours in an eight-hour day; can sit six hours
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in an eight-hour day; can lift/carry twenty pounds occasionally and ten
pounds frequently; can occasionally climb ramps and stairs; can never
climb a ladder, rope, or scaffold; must avoid concentrated exposure to
extreme cold, extreme heat, fumes, odors, dusts, gases and poor
ventilation; must avoid all exposure to hazardous machinery and
unprotected heights; can understand and recall simple workplace duties
and procedures; can execute simple 1-2-3 step commands; can
concentrate for two hour time periods if given routine breaks in order to
complete an eight-hour workday; can work best in a well spaced work
environment; can maintain no contact with the general public; and can
adapt to workplace changes that are simple, gradually introduced and
well explained; and is expected to miss one day of work per month due
to physical or mental impairments.
(Tr. at 43-44.)
Relying on a vocational expert (“VE”), the ALJ determined that if the plaintiff
stopped the substance abuse, he would be unable to perform any of his past relevant
work. (Tr. at 49.) The ALJ noted that Plaintiff was an “individual closely approaching
advanced age,” has a high school education, and is able to communicate in English,
as those terms are defined by the regulations. (Id.) The ALJ determined that
transferability of job skills is not material to the determination of disability. (Id.) The
ALJ then determined that “[i]f the claimant stopped the substance abuse, considering
the claimant’s age, education, work experience, and residual functional capacity, there
would be a significant number of jobs in the national economy that the claimant could
perform,” such as garment sorter, cloth folder, and folding machine operator. (Tr. at

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49-50.) Accordingly, the ALJ found that because Plaintiff would not be disabled if he
stopped the substance abuse, his substance abuse is a contributing factor material to
the determination of disability, and thus, the plaintiff “has not been disabled within
the meaning of the Social Security Act at any time from the alleged onset date through
the date of this decision.” (Tr. at 50.)
II.

Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act is

a narrow one. The scope of its review is limited to determining (1) whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The Court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions. See
Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The Court may not decide facts,
weigh evidence, or substitute its judgment for that of the Commissioner. Id. “The
substantial evidence standard permits administrative decision makers to act with
considerable latitude, and ‘the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s finding from being

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supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir.
1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607,
620 (1966)). Indeed, even if this Court finds that the evidence preponderates against
the Commissioner’s decision, the Court must affirm if the decision is supported by
substantial evidence. Miles, 84 F.3d at 1400. No decision is automatic, however, for
“despite this deferential standard [for review of claims] it is imperative that the Court
scrutinize the record in its entirety to determine the reasonableness of the decision
reached.” Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987). Moreover, failure to
apply the correct legal standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d
629, 635 (11th Cir. 1984).
III.

Discussion
Mr. Whitman alleges that the ALJ’s decision should be reversed and remanded

for one reason. He contends that the ALJ’s decision is in error because substantial
evidence does not support the conclusion that drug and alcohol use was a material
factor to the determination of disability. As evidence of this, Plaintiff asserts that the
ALJ failed to take into account evidence in the record suggesting that the plaintiff
would be unable to work even if he was drug and alcohol free. Because of this, Plaintiff
alleges that the ALJ’s findings are not based upon substantial evidence.

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Specifically, the plaintiff contends that the ALJ’s decision is not supported by
substantial evidence because the ALJ did not properly consider his mental
impairments independent of his substance abuse. (Doc. 8 at 5.) However, the record
shows that the ALJ did consider the plaintiff’s mental impairments independently of
his substance abuse, and that there is substantial evidence supporting her decision.
The ALJ found that Plaintiff has a history of chronic and situational depression,
even when not using drugs or alcohol. (Tr. at 21.) The ALJ also found that this
depression, even if the plaintiff ceased using drugs and alcohol, constituted a severe
impairment. (Id.) However, the ALJ determined that the depression did not meet or
exceed the criteria of impairments listed in the regulations, or prevent the plaintiff
from performing the requirements of other occupations that existed in significant
numbers in the national economy; namely, garment sorter, cloth folder, or folding
machine operator. (Tr. at 28-29.)
The Social Security Act precludes the award of benefits when drug or alcohol
abuse is found to be a contributing factor material to the finding of disability. See 42
U.S.C. §§ 423(d)(2)(c), 1382c(a)(3)( J); 20 C.F.R. §§ 404.1535, 416, 935; Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The ALJ found that the plaintiff’s drug
and alcohol abuse was a contributing factor material to the determination of disability,

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and substantial evidence supports this finding.
The record establishes that Plaintiff has a long history of substance addiction
issues. (Tr. at 16-29.) Plaintiff was admitted to the hospital in October 2008 after he
attempted suicide with an overdose of Zoloft and alcohol. (Tr. at 626-635.) He was
there diagnosed with alcohol dependency and cocaine abuse, among other things. (Tr.
at 626.) At discharge, Dr. Thotakura ordered him to abstain from illicit drug use. (Tr.
at 665.) In December 2008, after being admitted to the VA psychiatric ward, Plaintiff
reported that he was fired from his job for drinking half a bottle of sherry twice weekly.
(Tr. at 673.) He there denied drug use, but his drug screen from October 2008 was
positive for cocaine and barbiturates. (Id.) At discharge, he was diagnosed with alcohol
dependence, cocaine dependence, and marijuana dependence in early remission,
among other things. (Tr. at 672, 674.) Dr. Kowal instructed Plaintiff to attend
outpatient treatment and avoid substance abuse. (Tr. at 674.) In February 2009, he
was again admitted to the VA hospital, where he reported that he began drinking
alcohol at age 9 and freebasing cocaine at age 22. (Tr. at 848.) He reported that he had
lost numerous jobs due to his addictions. (Tr. at 849.) In March 2009, Plaintiff
entered the VA Outpatient Substance Abuse Clinic (“OSAC”) treatment program
and reported worsening substance abuse problems (Tr. at 1193-1236.) He reported

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that he typically drank a bottle of wine and one six pack daily, and used cocaine one
to two times per week. (Tr. at 1198.) He was once again diagnosed with continuous
alcohol and cocaine dependence, along with his mental issues. (Tr. at 1199.) As a
result of this evidence, the ALJ determined that the plaintiff’s drug and alcohol abuse
was a contributing factor material to the determination of disability, and thus he was
precluded from receiving social security benefits.
Not only was there substantial evidence to support the ALJ’s determination
that Plaintiff’s drug and alcohol use contributed to his disability, but there was also
substantial evidence supporting his finding that the plaintiff would not be disabled
apart from his drug and alcohol use. The plaintiff, not the Commissioner, bears the
burden of proving that he would still be disabled if he stopped using drugs and/or
alcohol. See Doughty, 245 F.3d at 1275-76, 1280-81. Thus, since Plaintiff has a history
of substance abuse, he is not disabled unless he can prove he would still be unable to
work absent the substance abuse. The plaintiff does not point to any specific evidence
in the record supporting his assertion that he would still be disabled if he stopped
abusing drugs and alcohol. Therefore, since the plaintiff has the burden of proof, this
assertion could be dismissed on that ground alone. However, it is worth noting that
evidence in the record actually points in the other direction, indicating that Plaintiff

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would be able to perform the requirements of other work if he stopped using drugs and
alcohol.
To begin with, the ALJ elicited testimony from a vocational expert, who
testified that a person with Plaintiff’s limitations could perform the jobs of garment
sorter, cloth folder, and folding machine operator. (Tr. at 86-92.) This was supported
by the findings of Eugene Fleece, Ph.D., a state agency psychologist who reviewed
Plaintiff’s medical records and completed a Psychiatric Review Technique Form in
April 2009 where he found the plaintiff to have only moderate functional limitations,
when he refrains from substance abuse (except in the category of interacting
appropriately with the general public). (Tr. at 1263-76, 1291-93.) Dr. Fleece noted that
Plaintiff would need to ask for supervisory flexibility in work hours and scheduling,
but that he could remain within competitive limits on psychiatric grounds. (Tr. at
1293.) Furthermore, Dr. Fleece found that Plaintiff would show some
irritable/anxious distractibility if assigned to work in close proximity with numerous
others, but that the effect would be minor in a well spaced work environment. (Id.) Dr.
Fleece also found that Plaintiff would miss only one day of work monthly due to
mental issues, that he could take direct, non-confrontational supervision, and that he
could adapt to simple, gradually introduced, or well explained workplace changes.

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(Id.)
Additionally, Plaintiff was admitted to a hospital in February 2010, where he
was treated by Dr. Michael Shehi. (Tr. at 1303, 1319-20.) During his stay, Plaintiff’s
mood stabilized and his depression decreased with medication. (Tr. at 1319.) Dr.
Shehi diagnosed Plaintiff with major depressive disorder, alcohol abuse, and cocaine
abuse. (Tr. at 1319-20.) Plaintiff reported that he felt “really better” with medication,
and Dr. Shehi assessed his prognosis as good with continued treatment. (Tr. at 1320,
1412.) Dr. Shehi discharged Plaintiff in improved condition with a GAF score of 70.1
(Tr. at 1319.) Plaintiff later reported in July 2010 that he was doing better with
negative alcohol tests. (Tr. at 1512-21.)
The ALJ found that this evidence of record demonstrates that the plaintiff’s
mental status improves significantly when he refrains from substance abuse and that
all of the plaintiff’s psychological episodes occurred while he was under the influence
of alcohol or drugs. (Tr. at 26.) Furthermore, the ALJ found that Plaintiff’s
depression would be moderate at worst, without his substance abuse. (Id.) Notably,
the mere presence of an impairment, such as depression in this case, is insufficient to
1

A GAF score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild
insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy,
or theft within the household), but generally functioning pretty well and having some meaningful
interpersonal relationships. See GAF Scale American Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders p. 34 (4th ed. Rev. 2000).
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render a person disabled. Instead, it is the functional limitations that the impairment
causes, and not the impairment itself, which affect an individual’s ability to work. See
McCruter v. Bowen, 791 F. 2d 1544, 1547 (11th Cir. 1986) (“the ‘severity’ of a
medically ascertained disability must be measured in terms of its effect upon ability to
work, and not simply in terms of deviation from purely medical standards of bodily
perfection or normality.”); SSR 96-8p, 1996 WL 374184 (“The RFC assessment
considers only the functional limitations and restrictions that result from an
individual’s medically determinable impairment or combination of impairments,
including the impact of any related symptoms.”).
The ALJ relied on the findings of Dr. Fleece,2 Dr. Shehi, and the VE in
determining that Plaintiff could perform the requirements of other occupations
existing in significant numbers in the national economy, if he stopped his substance
abuse. The plaintiff failed to produce any evidence supporting his assertion that he
could not perform the jobs cited by the vocational expert and the ALJ, if he stopped
his substance abuse. Therefore, substantial evidence supports the ALJ’s finding that
substance abuse was a contributing factor material to the determination of disability,

2

The ALJ specifically found Dr. Fleece’s opinion consistent with the medical evidence of
record. (Tr. at 20-21.) Medical experts are considered experts in the Social Security disability
programs and their opinions may be entitled to great weight if the evidence supports their opinions.
See 20 C.F.R. §§ 404.1512(b)(6), 404.1527(f )(2)(I), (iii), 416.912(b)(6), 416.927(f )(2)(I), (iii).
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and that if plaintiff stopped his substance abuse, he would not be disabled.
IV. Conclusion
Upon review of the administrative record, and considering all of Mr.
Whitman’s arguments, the Court finds the Commissioner’s decision is supported by
substantial evidence and in accord with the applicable law. A separate order will be
entered.
Done this 7th day of August 2013.

L. Scott Coogler
United States District Judge
[160704]

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