Glass v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 3/29/17. (MRR, )

FILED
2017 Mar-29 PM 04:14
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
LARRY GLASS,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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Case No. 5:15-cv-2115-TMP

MEMORANDUM OPINION
Introduction
The plaintiff, Larry Glass, appeals the decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying his application for
Disability Insurance Benefits (“DIB”). Mr. Glass 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). The parties have consented to the
exercise of dispositive jurisdiction by the undersigned magistrate judge pursuant to
28 U.S.C. § 636(c).
Mr. Glass was 46 years old at the time of the Administrative Law Judge’s

(“ALJ”) decision, and he has some college education 1 and has worked at a variety of
newspaper jobs, including as a writer, editor, and photographer. (Tr. at 26, 51).
Mr. Glass claims that he became disabled on February 1, 2010, due to Guillian-Barré
Syndrome (AGBS@) with related polynuerophathy in the lower extremities, bipolar
disorder, seizures, anxiety disorder, visual deficits, tremors (Parkinsonism), memory
loss, impaired judgment, and obsessive compulsive disorder. He also has a history
of alcohol abuse. (Tr. at 23, 232).
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 is, the claimant is not disabled and the evaluation stops. Id. If he is not, the
Commissioner next considers the effect of all of the claimant’s 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 upon the medical
1

At his psychological evaluation with Dr. John Rogers, he reported having a college
degree in journalism. (Tr. at 461).
Page 2 of 24

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). 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. Part 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 will be found disabled without further consideration.
Id. If they do not, a determination of the claimant’s residual functional capacity
(ARFC@) will be made, and the analysis proceeds to the fourth step. 20 C.F.R. ''
404.1520(e), 416.920(e). Residual functional capacity is an assessment, based on
all relevant evidence, of a claimant’s remaining ability to do work despite his
impairments. 20 C.F.R. ' 404.1545(a).
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 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
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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. The burden of
demonstrating that other jobs exist which the claimant can perform is on the
Commissioner; and, once that burden is met, the claimant must prove his inability to
perform those jobs in order to be found to be disabled. Jones v. Apfel, 190 F.3d
1224, 1228 (11th Cir. 1999).
The analysis involves a further step in cases where the claimant is addicted to
drugs or alcohol. Congress amended the Social Security Act in 1997 to provide that
a claimant “shall not be considered to be disabled for purposes of this subchapter if
alcoholism or drug addiction would (but for this subparagraph) be a contributing
factor material to the Commissioner’s determination that the individual is disabled.”
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing Pub. L. No. 104B121,
' 105(a)(1), (b)(1), 110 Stat. 847, 852, 853 (codified as amended at 42 U.S.C.
' 423(d)(2)(C) (1997)).

Consequently, under the amendment, known as the

Contract with America Advancement Act (ACAAA@), if an ALJ determines that a
claimant is disabled and that drug or alcohol abuse is involved, the ALJ “must
determine whether drug addiction or alcoholism is a contributing factor material to
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the determination of disability.” 20 C.F.R. '' 404.1535(b)(1), 416.935(b)(1). The
ALJ is required to determine which of the plaintiff’s physical and mental limitations
that supported the original disability determination would remain a limitation or
impairment absent the claimant’s drug or alcohol use. 20 C.F.R. '' 404.1535(b)(3),
416.935(b)(3). If the plaintiff would no longer be disabled if he stopped using
drugs or alcohol, then the substance abuse is considered a “contributing factor
material to the determination of [his] disability,” and he will have failed to meet his
burden of showing that he is disabled.

20 C.F.R. '' 404.1535(b)(2)(i),

416.935(b)(2)(i); 42 U.S.C. '' 423(d)(2)(C), 1382c(a)(3)(J). The Eleventh Circuit
Court of Appeals has stated that the claimant bears the burden of proving that the
substance abuse “is not a contributing factor material to his disability
determination.” Doughty, 245 F.3d 1274 at 1280, citing Brown v. Apfel, 192 F.3d
492 (5th Cir. 1999) and Mittlestedt v. Apfel, 204 F.3d 847 (8th Cir. 2000).
Applying the sequential evaluation process, the ALJ found that Mr. Glass has
not been under a disability within the meaning of the Social Security Act from the
alleged date of onset through the date of her decision. (Tr. at 37). She first
determined that Mr. Glass had not engaged in substantial gainful activity since
February 1, 2010, the alleged date of his onset. (Tr. at 22). At the second step of
Page 5 of 24

the analysis, the ALJ found that the plaintiff had severe impairments of GBS with
associated polyneuropathy 2 involving his bilateral lower extremities, a bipolar I
disorder, an anxiety disorder, alcohol dependence, and a history of seizures. (Tr. at
23.) She further found non-severe impairments of double vision/diplopia. (Id.)
The ALJ also determined that these impairments neither meet nor medically equal
any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at
23). The ALJ found Mr. Glass’s statements concerning the intensity, persistence,
and limiting effects of his symptoms not to be entirely credible. (Tr. at 32). Even
so, the ALJ found that the impairments, in combination with the alcohol abuse, are
disabling. (Tr. at 25).
She determined that the claimant has the residual functional capacity to
perform a limited range of sedentary work. (Tr. at 25). The ALJ further found that
the claimant should be subject to the following limitations: that he can occasionally
lift and/or carry ten pounds and frequently lift and/or carry less than ten pounds; he
can stand and/or walk in combination, with normal breaks, for at least two hours
during an eight-hour workday; he can frequently perform fine and gross
2
The Merck Manual describes polyneuropathy as “the simultaneous malfunction of
many peripheral nerves throughout the body.” It has many causes, including Guillain-Barré
Syndrome, and it manifests as an impairment of strength and sensation in the hands
and feet. See http://www.merckmanuals.com/home/brain,-spinal-cord,-and-nerve-disorders/peri
pheral-nerve-disorders/polyneuropathy (as viewed March 29, 2017).

Page 6 of 24

manipulations bilaterally; he can occasionally climb ramps and stairs and should
never climb ladders, ropes, or scaffolds. The claimant can frequently balance and
stoop and occasionally kneel, crouch, and crawl; he should avoid concentrated
exposure to extreme heat, extreme cold, wetness, and working in areas of vibration;
he should avoid exposure to industrial hazards including working at unprotected
heights, working in close proximity to moving dangerous machinery, the operation
of motorized vehicles and equipment, and near large open bodies of water, flame or
fire. He can perform simple, routine tasks requiring no more than short, simple
instructions and simple work-related decision making with few workplace changes.
However, the ALJ determined that, considering all the impairments along with the
alcohol abuse, the claimant would be unable to maintain concentration, persistence
or pace sufficiently to be able to complete an eight-hour workday and 40-hour
work-week on a regular and sustained basis. (Tr. at 25).

The ALJ went on to

explain that claimant=s testimony that he could not concentrate or tolerate stress were
credible when he was abusing alcohol, but that the symptoms waned when the
claimant was not abusing alcohol. The ALJ went on to discuss that, in the absence
of the alcohol abuse, claimant=s ability to work improved significantly. (Tr. at

Page 7 of 24

25-26). Similarly, the ALJ noted that Mr. Glass=s physical symptoms of tremors
and lack of balance dissipated during periods when he was not drinking. (Id.)
According to the ALJ, Mr. Glass is unable to perform any of his past relevant
work and that he was a “younger individual” at the date of alleged onset, he has a
high school education, and is able to communicate in English, as those terms are
defined by the regulations. (Tr. at 26). She determined that “transferability of
skills is not material to the determination of disability” in this case. (Id.) The ALJ
found that, considering Mr. Glass’s age, education, work experience, and residual
functional capacity based on the impairments including the substance abuse, there
are no jobs that exist in significant numbers in the national economy that the
claimant can perform. (Tr. at 26).
The ALJ next found that, if the claimant stopped the substance use, the
claimant would continue to have severe impairments, but that the impairments
would not meet or equal any of the impairments listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1. (Tr. at 27). The ALJ examined the remaining impairments and the
degree to which they would limit Mr. Glass=s ability to work and found that, absent
the alcohol abuse, he would have the residual functional capacity to perform a full
range of sedentary work with the following limitations: he can occasionally lift

Page 8 of 24

and/or carry ten pounds and frequently lift and/or carry less than ten pounds; he can
stand and/or walk in combination, with normal breaks, for at least two hours during
an eight-hour workday, and he can sit, with normal breaks, for up to eight hours
during an eight-hour workday; he can frequently perform fine and gross
manipulations bilaterally; he can occasionally climb ramps and stairs and should
never climb ladders, ropes, or scaffolds. The claimant can frequently balance and
stoop and occasionally kneel, crouch, and crawl; he should avoid concentrated
exposure to extreme heat, extreme cold, wetness, and working in areas of vibration;
he should avoid exposure to industrial hazards including working at unprotected
heights, working in close proximity to moving dangerous machinery, the operation
of motorized vehicles and equipment, and near large open bodies of water, flame, or
fire. He can perform simple, routine tasks requiring no more than short, simple
instructions and simple work-related decision-making with few workplace changes;
he can have occasional interactions with co-workers and supervisors and no
interactions with members of the general public. (Tr. at 30-31).

The ALJ found

that there are a significant number of jobs in the national economy that he is capable
of performing, such as document preparer, surveillance systems monitor, and table
worker. (Tr. at 37). The ALJ concluded her findings by stating that substance

Page 9 of 24

abuse disorder is a contributing factor material to the determination of disability
because the claimant would not be disabled if he stopped the substance use;
accordingly, she found that the claimant is not disabled under the Social Security
Act. (Id.)
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). Substantial evidence is “more than a scintilla and is
such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford v. Commissioner of Soc. Sec., 363 F.3d 1155, 1158 (11th
Cir. 2004), quoting Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997).
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.

Page 10 of 24

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 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).
Discussion
Mr. Glass alleges that the ALJ’s decision should be reversed and remanded
because the ALJ’s finding is not supported by substantial evidence. (Doc. 8).
More specifically, the plaintiff argues that, because he ended his alcohol abuse and
has been sober since April 24, 2013, (tr. at 297), until at least the date of his hearing

Page 11 of 24

on April 4, 2014, the prior history of alcohol use cannot be considered as a
contributing factor to his current disability. (Doc. 8, p. 4). 3 The Commissioner
argues that the plaintiff failed to meet his burden of proving he is disabled, and that
the ALJ’s decision was supported by substantial evidence. (Doc. 10).
A. Medical History
The evidence presented indicates that Mr. Glass=s medical history was as
follows on the date of his hearing:
Mr. Glass was first diagnosed with bipolar disorder when he was in his
twenties, which caused manic periods and periods of severe depression. At times,
he was suicidal. He also suffers from an unspecified anxiety disorder that causes
him to have panic attacks. He has been recently prescribed lithium, Seroquel, and
Depakote for his psychiatric disorders. He was diagnosed with Guillain-Barré
Syndrome in 2012, which causes numbness and tingling in his feet and fingers, and
3

Plaintiff seems to take the position that, because he is now sober, based on his
having completed a rehabilitation program and testifying that he no longer abuses alcohol, the
ALJ=s finding is without a basis in the evidence or in the law. To be clear, however, the ALJ
determined that the plaintiff is unable to perform gainful work and would meet the requirements of
the SSA to receive disability insurance payments when he was abusing alcohol, but that his
abilities improved when alcohol abuse stopped, leaving him no longer disabled thereafter. If
plaintiff’s argument is that he should receive benefits at least for the time when he abused alcohol
and was thus unable to work, that is exactly the result that the CAAA prevents. Rather, the court
reads his argument to be that the ALJ incorrectly determined that, after his alcohol abuse ended, he
was no longer disabled and could perform a limited range of sedentary work. He appears to argue
that this post-sobriety determination is not supported by substantial evidence.
Page 12 of 24

which causes him to drop things, to lose his balance, and to fall. He was prescribed
daily physical and occupational therapy, after which he was performing all activities
of daily living (ADLs), and he was able to walk 850 feet without an assistive device.
He had good range of motion and only slight loss of muscle strength in the upper
extremities, and moderate loss of strength in the lower extremities. At the time of
the hearing, he was no longer seeing a neurologist, but was still reporting symptoms
of GBS.
Mr. Glass also has a history of having had petit mal seizures for which he
takes medication, but had not had a seizure for at least two years prior to the hearing.
When asked at the hearing to rank his disabilities, Mr. Glass listed a lack of
concentration and fear of failure as first, followed by a fear of being wrong, and a
fear of being in a confined area. He also said that getting to work on time would be
a big problem for him.
He has been in rehabilitation facilities for treatment of alcoholism on at least
three occasions. 4 Plaintiff has abused alcohol for more than a decade, but reports
that he remained sober for about nine years after one rehabilitation. In August of
4

His testimony at the hearing was not entirely clear whether his sobriety date was
April 2013 or August 2013, but counsel asserts that the April date, when Mr. Glass completed an
out-patient rehabilitation program, is the correct date. Nothing in the ALJ=s opinion, or in this
court=s decision, however, turns on the date of sobriety.
Page 13 of 24

2012, he completed another period of rehabilitation at Pearson Hall, graduating from
the in-patient program on August 24, 2012. (Tr. at 423-425). After relapses, he
entered an out-patient alcohol treatment program in April 2013, and completed the
intensive outpatient program on April 24, 2013. He testified at the ALJ’s hearing in
April 2014 that he had remained sober as of the date of his hearing.
In August of 2010, Mr. Glass was treated for an overdose of Klonipin, which
was accompanied by alcohol. He denied that the incident was a suicide attempt.
He was referred to an inpatient psychiatric hospital for detoxification and was
treated at Parkridge Valley Hospital. (Tr. at 547 - 612).
In September of 2011, Dr. Kim treated the claimant after a bout with weight
loss, nausea, and vomiting. Dr. Kim noted that Mr. Glass had bipolar disorder, and
had been depressed, but also noted that he showed good judgment, had a normal
mood and affect, was active and alert, was oriented to time, place and person, and
showed normal memory. (Tr. at 318).
Mr. Glass was diagnosed with GBS in January of 2012, having complained of
weakness in his legs, and he was referred to physical therapy. (Tr. at 323, 642).
On January 12, 2012, Mr. Glass was admitted to the Healthsouth Chattanooga
Rehabilitation Hospital and, after eight days of physical and occupational therapy,

Page 14 of 24

he was discharged with the notation that his functional status was improved, he was
independent in ADLs, and could ambulate 850 feet without an assistive device. (Tr.
at 323).

His discharge instructions directed that he could walk independently and

could climb stairs using two rails, could get in and out of a tub, and could prepare
meals, although he should take rest breaks. (Tr. at 346-47). After his discharge,
Mr. Glass reported to his primary physician, Dr. Ronald Calhoun, that he was “doing
much better.” (Tr. at 399). Although additional physical therapy was prescribed,
Mr. Glass indicated that he did not have insurance coverage for the therapy and
would instead join a gym and follow the exercise regime on his own. (Tr. at 342).
In April of 2012, he was treated by Dr. Bhushan, who noted that Mr. Glass
was complaining of trouble sleeping. Dr. Bhushan noted “overall mood stable,
interactions positive, appetite stable, no mania, no psychosis, no si/hi [suicidal
ideations, homicidal ideations].” (Tr. at 378).
In August of 2012, Mr. Glass was admitted to Pearson Hall for detoxification
from alcohol.

(Tr. at 424-25). He reported that he had abused alcohol since

before 2001, but that he had managed to remain sober from 2001 until 2009. He
was discharged after 17 days of treatment with a good prognosis. (Id.).

Page 15 of 24

In September of 2012, Mr. Glass underwent a consultative psychological
evaluation conducted by Jon Rogers, Ph. D. The plaintiff reported to Dr. Rogers
that he had attempted suicide multiple times, including earlier that month. He also
described depression, weight loss, insomnia, fatigue, difficulty with concentration
and decision making, anxiety, panic attacks, obsessive compulsive disorder, and
issues with anger. (Tr. at 460-61).

He also described his GBS, telling the

psychologist that because of the GBS he could no longer type, had fallen that
morning, had headaches, stomachaches, blackouts, dizziness, seizures, palpitations,
bowel disturbances, nightmares, insomnia, tension, panic, fatigue, diarrhea, and pain
in his neck, back, elbow, hips and feet. (Tr. at 461). Dr. Rogers noted that Mr.
Glass was dressed appropriately, nicely groomed, and alert, with average motor
activity; however, he described the plaintiff as nervous, with a shaky voice,
appearing anxious and depressed. (Tr. at 462). Mr. Glass was oriented as to time,
place and person; was able to perform a serial subtraction task and correctly
answered three math problems. He was able to repeat 6 digits forward and 4
backward and could recall 3 objects after five minutes in a memory test. His
judgment and insight were ranked as Afair.@ (Tr. at 463). Dr. Rogers opined that Mr.
Glass’s mental impairment was “severe,” that his ability to understand, remember,

Page 16 of 24

and carry out instructions in a work setting would be moderately impaired, and that
his ability to respond appropriately to work pressures, supervision, and coworkers
would be severely impaired. (Tr. at 465-66).
The plaintiff also was evaluated by a consulting medical physician, Dr.
Snehaprabha Reddy, in October 2012. Plaintiff reported that he had GBS, had no
feeling in his toes, and a poor grip, but that he was still attending physical therapy
every six weeks. Dr. Reddy=s physical examination resulted in a report that the
plaintiff was alert, oriented, coherent, and cooperative; that he had vision of 20/25 in
the left eye and 20/30 in the right eye without his glasses. His extremities showed
no pitting edema, cyanosis, or clubbing. His neurological evaluation resulted in
findings that the plaintiff was “unable to perform tandem gait,” in that he was losing
balance, and he had a positive Romberg sign. His grip was 4/5 and finger dexterity
was within normal limits. Muscle strength in the upper and lower extremities was
measured at grade 4/5. The doctor reported impressions of “Post Guillian-Barre
syndrome,” and “history of bipolar manic depressive disorder.” (Tr. at 468-69).
On January 3, 2013, Mr. Glass visited Dr. Bhushan, complaining that his son
had stolen his medication and had attempted suicide. The doctor noted that the
plaintiff was “mildly shaky/tremulous, mildly disheveled,” but that he was alert and

Page 17 of 24

oriented and that his mood was “okay.” His psychosocial problems were ranked as
moderate. (Tr. at 488-90). On March 4, 2013, Mr. Glass visited Dr. Bhushan
again, complaining that he was having anxiety stemming from his son’s drug abuse.
The doctor observed a tremor and anxiety.
In April of 2013, the plaintiff again participated in an Aintensive outpatient
program@ for alcohol rehabilitation. He completed a 17-day program at Family Life
Center on April 24, 2013, and he testified that he has remained sober after that date.
The only medical records documenting Mr. Glass=s condition after his 2013
rehabilitation program are visits with Dr. Calhoun, a family physician that he had
seen for at least a few years. In June 2013, he told Dr. Calhoun that he needed to
find a new psychiatrist, and that he was not sleeping.5 He was told to restart taking
Klonipin for anxiety. (Tr. at 619). At a visit in July 2013, he told Dr. Calhoun that
he seemed “to be doing alright,” was sleeping “ok” and that his anxiety was “up and
down.” The doctor noted that he “seems to be doing well” and “reports no
problems with medication.” (Tr. at 618). In August of 2013, he reported to Dr.
Calhoun that he was “doing pretty good” and had “no new problems.” (Tr. at 616).
On September 30, 2013, Mr. Glass reported during a follow-up visit that he was “ok”
5

The psychiatrist that Mr. Glass had seen before was no longer accepting the
insurance plan that Mr. Glass had, although Mr. Glass remained covered by insurance.
Page 18 of 24

with no new problems, and that his mood was “stable”; however, he continued to
report insomnia and fatigue. The doctor continued prescribing Depakote, lithium,
Seroquel, and Klonipin. (Tr. at 614).
B. Substantial Evidence and Plaintiff=s Burden of Proof
The court reviews the plaintiff=s appeal from the denial of Social Security
disability payments to determine whether the Commissioner’s decision is supported
by substantial evidence, and whether the correct legal standards were applied.
Substantial evidence has been determined to be more than a scintilla, and is “such
relevant evidence as a reasonable mind might accept to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842
(1971). In a case where the plaintiff is a substance abuser, the court must review the
evidence to determine whether the claimant’s substance abuse is a “material
contributing factor” to his inability to work. It is the plaintiff who bears the burden
of proving “that his alcoholism or drug addiction is not a contributing factor material
to his disability determination.” Taylor v. Colvin, No. CA 13-0062-C, 2013 WL
6410401 *13 (S.D. Ala. 2013).
Viewing the record as a whole, it is clear that the plaintiff has suffered from
bipolar disorder and anxiety since he was in his twenties, and that he was able to

Page 19 of 24

work as a newspaper writer, editor, photographer, and in other aspects of the
newspaper business, until 2010. He reports that he was sober from 2001 until 2009.
He was abusing alcohol, and possibly prescription drugs, at least much of the time
between 2010 and April 2013, when he completed his final rehabilitation program.
The record indicates that when he was diagnosed with Guillian-Barré Syndrome in
2012, he was abusing alcohol, and that at the times when he was reporting the most
severe symptoms, he was abusing alcohol. The only medical records that come
after his sobriety date show that he was no longer seeing a psychiatrist for his mental
disorders, even though he indicated that he intended to find a new psychiatrist, that
he was not seeing any specialist for his GBS, and that he was reporting to his
primary physician that he was doing “alright,” with “no new problems,” but that he
was having some fatigue and insomnia. As found by the ALJ, this is substantial
evidence that his mental disorders were not disabling after he obtained sobriety.
Plaintiff argues that ALJ failed to consider the consultative psychologist’s
evaluation that the plaintiff’s mental impairment would be “severe.” (Doc. 8, p. 4
n.10). However, plaintiff has not demonstrated that Dr. Rogers= evaluation, which
was conducted on September 28, 2012, reflected his ability to function during a
period of sobriety. (Tr. at 460-65). He apparently told Dr. Rogers that his last

Page 20 of 24

drink was on August 4, 2012. However, he had been court-ordered to attend an
addiction program in August 2012, and he concedes that he relapsed afterwards.
More important, however, is that Dr. Rogers= assessment of the plaintiff’s mental
impairment as severe is not consistent with other observations that Mr. Glass was
able to function independently. Indeed, Dr. Rogers’ own assessment found the
plaintiff was “was dressed appropriately, nicely groomed, and alert, with average
motor activity,” that he “was oriented as to time, place and person.” Dr. Rogers
noted that the plaintiff could perform memory and mathematics tasks, and that his
judgment and insight were ranked as “fair.” (Tr. at 463). The plaintiff points to his
own testimony regarding the effect of sobriety on his bipolar disorder. He stated his
bipolar disorder is “more evident” when he is sober, in that “without the use of
alcohol, I can tell when one mood is coming on and ups and downs, when they=re
coming.” He did not testify that sobriety had exacerbated existing problems or
created any new ones, however.
The ALJ determined that the claimant=s credibility was compromised by the
fact that he had applied for and received unemployment benefits in 2011, after he
lost his newspaper job. (Tr. at 23). The ALJ further determined that the claimant
did not meet the listing for his peripheral neuropathy because the objective medical
Page 21 of 24

evidence did not show “disorganization of motor function in two extremities,
resulting in sustained disturbance of gross and dexterous movements, gait and
station.” (Tr. at 24). These findings were supported by all of the medical records
that post-date the plaintiff=s date of sobriety. (Tr. at 614-19).
The ALJ noted that none of the listings for mental impairment were met
because the claimant had only “mild to moderate restriction,” based on the
claimant=s own function report that showed he could dress, bathe, use the toilet, take
care of his son, do laundry, make the bed, sweep the floor, and engage in
woodworking. (Tr. at 24). This finding is supported by the function report, and by
his own testimony at the hearing that he suffered more from a lack of motivation,
and from fear, than from other limitations. (Tr. at 90-91). It is also supported by
Dr. Calhoun’s observations of the plaintiff’s mental condition after his April 2013
sobriety date. On the whole, the ALJ correctly determined that his condition was
materially improved when he was sober.
The ALJ went on to note that the medical records showed a Aphysical decline@
during the periods in which Mr. Glass was using excessive amounts of alcohol or
prescription pills, but that, when not abusing substances, the claimant had good
attention and concentration, good memory, normal judgment and insight.
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The

objective medical records support this finding. Mr. Glass did not testify that any
symptoms of his bipolar disorder got worse after his date of sobriety.

Plaintiff

concedes that records from just before he entered rehab in 2013 (a time when he was
drinking excessively) show his psychiatric symptoms were worsening, but he draws
from these medical notations that “in no way can these records be said to support the
court’s conclusions that plaintiff’s bipolar disorder has improved since his sobriety.”
(Doc. 8, p. 17). This court agrees with the ALJ that the evidence of worsening
symptoms before sobriety and the improvement of those symptoms after sobriety
supports a conclusion that the alcohol abuse was a contributing factor material to Mr.
Glass’s disability. 6
Accordingly, the ALJ=s decision that Mr. Glass’s substance abuse is a
contributing factor material to his disability is supported by substantial evidence.
Importantly, the ALJ also found that when the alcohol abuse ceases, the plaintiff is
not disabled, but can perform a limited range of sedentary work, notwithstanding his
physical impairments. The plaintiff has failed to meet his burden of showing that,

6

The court also rejects plaintiff=s argument that the ALJ failed to fairly and fully
develop the record. There is no absence of medical evidence here, and no indication that a second
consultative examination of Mr. Glass would be necessary. Plaintiff faults the ALJ for not
accepting in full Dr. Rogers= consultative evaluation, and at the same time wants to argue that Dr.
Rogers= evaluation was not sufficient.
Page 23 of 24

when sober, he remains unable to work.

His allegations that his psychiatric

disorders and his GBS caused him to be unable to do even a limited range of
sedentary work is not supported by the record.
Conclusion
Upon review of the administrative record, and considering all of Mr. Glass’s
arguments, the undersigned magistrate judge finds the Commissioner’s decision is
due to be and hereby is AFFIRMED.
DONE this 29th day of March, 2017.

_______________________________
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE

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