Henry v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 9/29/2014. (PSM)

FILED
2014 Sep-29 PM 02:07
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION

TERESA DEAN HENRY,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

CIVIL ACTION NO.
6:13-cv-1812-AKK

MEMORANDUM OPINION
Plaintiff Teresa Dean Henry (“Henry”) brings this action pursuant to Section
205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking review of the
final adverse decision of the Commissioner of the Social Security Administration
(“SSA”). This court finds that the Administrative Law Judge’s (“ALJ”) decision which has become the decision of the Commissioner - is supported by substantial
evidence. Therefore, for the reasons elaborated herein, the court will affirm the
decision denying benefits.
I. Procedural History
Henry, whose past relevant experience includes work as a cashier and security
guard, filed an application for Title II disability insurance benefits and Title XVI
Supplemental Security Income on January 4, 2010, alleging a disability onset date of
August 1, 2009, due to back pain, arthritis, ADHD, depression, and diabetes. (R. 22,

32, 244). After the SSA denied Henry’s claim, she requested a hearing before an ALJ.
(R. 152-53). The ALJ subsequently denied Henry’s claim, (R. 19-32), which became
the final decision of the Commissioner when the Appeals Council refused to grant
review. (R. 1-6). Henry then filed this action for judicial review pursuant to § 205(g)
of the Act, 42 U.S.C. § 405(g). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker,
672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the correct legal
standards. See Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Chester v. Bowen,
792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. § 405(g) mandates that the
Commissioner’s “factual findings are conclusive if supported by ‘substantial
evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district
court may not reconsider the facts, reevaluate the evidence, or substitute its judgment
for that of the Commissioner; instead, it must review the final decision as a whole and
determine if the decision is “reasonable and supported by substantial evidence.” See id.
(citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). Substantial
evidence falls somewhere between a scintilla and a preponderance of evidence; “[i]t is
such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Martin, 849 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other

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citations omitted). If supported by substantial evidence, the court must affirm the
Commissioner’s factual findings even if the preponderance of the evidence is against
the Commissioner’s findings. See Martin, 894 F.2d at 1529. While the court
acknowledges that judicial review of the ALJ’s findings is limited in scope, it notes that
the review “does not yield automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to engage
in any substantial gainful activity by reason of any medically determinable physical or
mental impairments which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than twelve months.” 42 U.S.C.
§ 423(d)(1)(A); 42 U.S.C. § 416(i). A physical or mental impairment is “an impairment
that results from anatomical, physiological, or psychological abnormalities which are
demonstrated by medically acceptable clinical and laboratory diagnostic techniques.”
42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20 C.F.R.
§§ 404.1520(a)-(g), 416.920(a)-(g). Specifically, the Commissioner must determine in
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

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(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative answer to
any of the above questions leads either to the next question, or, on steps three and five,
to a finding of disability. A negative answer to any question, other than step three,
leads to a determination of ‘not disabled.’” Id. at 1030 (citing 20 C.F.R. §
416.920(a)-(f)). “Once a finding is made that a claimant cannot return to prior work the
burden shifts to the Secretary to show other work the claimant can do.” Foote v.
Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
IV. The ALJ’s Decision
In performing the five step analysis, the ALJ found that Henry had not engaged
in substantial gainful activity since August 1, 2009, and, therefore, met Step One. (R.
25). Next, the ALJ found that Henry satisfied Step Two because she suffered from the
severe impairments of “spinal arthritis, obesity, depressive disorder, anxiety disorder,
and polysubstance abuse.” Id. The ALJ then found at Step Three that Henry’s
“impairments, including the substance use disorders,” met sections 12.04 and 12.06 of
the listed impairments. Id. However, because Henry cannot be found disabled if
alcoholism or drug addiction is a “contributing factor material to the [ALJ’s]
determination that [Henry] is disabled,” 42 U.S.C. § 423(d)(2)(C), the ALJ decided
next which physical and mental limitations “would remain if [Henry] stopped using
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drugs or alcohol.” 20 C.F.R. § 404.1535(b)(2). Under the regulations, if the remaining
impairments would not be disabling, substance abuse is a contributing factor material to
the determination of disability. 20 C.F.R. § 404.1535(b)(2)(i). In conducting this
analysis, the ALJ returned to Step Two and found that Henry would continue to have a
severe impairment even if she “stopped the substance use.” (R. 27). The ALJ next
found that if Henry “stopped the substance use, [she] would not have an impairment or
combination of impairments that meets or medically equals” one of the listed
impairments. Id.
Although in the absence of substance abuse the ALJ answered Step Three in the
negative, consistent with the law, see McDaniel, 800 F.2d at 1030, the ALJ proceeded
to Step Four where he found that if
[Henry] stopped the substance use, [Henry] would have the residual
functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except that she could only occasionally climb
stairs, kneel, crouch, or crawl; would be prohibited from exposure to
concentrated pulmonary irritants. She would be limited to occasional
contact with the general public and co-workers.
(R. 28). In light of her RFC, the ALJ held that Henry “is unable to perform any past
relevant work.” (R. 22). Lastly, in Step Five, the ALJ considered Henry’s age,
education, work experience,1 and RFC, and determined that if Henry “stopped the
substance use . . . there would be a significant number of jobs in the national economy
1

As of the date of the ALJ’s decision, Henry was 46 years old, had a high
school education, and past relevant light unskilled work as a cashier and security guard.
(R. 32).
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[Henry] could perform.” (R. 32-33). Therefore, the ALJ found that Henry’s “substance
use disorder is a contributing factor material to the determination of disability because
the claimant would not be disabled if she stopped the substance use,” and accordingly,
that Henry “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.” (R. 33).
V. Analysis
The court now turns to Henry’s contentions that the ALJ erred by (1) rejecting
the opinions of Dr. Jon Rogers, Ph.D., a consultative examiner; and (2) finding that
Henry’s substance abuse is a factor material to the determination of disability. See doc.
10 at 5-9. The court addresses each contention in turn.
A.

Dr. Rogers’ Opinions

Henry’s first contention is that the ALJ erred by giving little weight to the
opinions of Dr. Rogers, who evaluated Henry at the behest of her attorney. According
to Henry, Dr. Rogers’ opinion that Henry has a GAF score of 48,2 and marked
difficulties in several areas – including maintaining social functioning, concentration,
and responding to customary work pressures – renders her disabled. Doc. 10 at 5-8.
More specifically, Henry contends that the ALJ should have credited Dr. Rogers’
2

The Global Assessment of Functioning (GAF) Scale is used to report an
individual’s overall level of functioning. Diagnostic and Statistical Manual of Mental
Disorders 32 (4th ed., Text Revision) (“DSM-IV-TR”). A GAF of 41-50 indicates:
“Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent
shoplifting) or any serious impairment in social, occupational, or school functioning
(e.g., no friends, unable to keep a job).” DSM-IV-TR at 34 (emphasis in original).
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opinion that these restrictions would apply even without consideration of Henry’s
substance abuse. Doc. 10 at 7.
As a nontreating psychologist, Dr. Rogers’ opinions are not entitled to
controlling weight under 20 C.F.R. § 404.1527(c)(2). Consequently, the ALJ had to
consider several factors to determine the weight, if any, to give Dr. Rogers’ opinions.
One of these factors is whether Dr. Rogers’ opinion is consistent with the record as a
whole. See 20 C.F.R. § 416.1527(c). Moreover, the ALJ “may reject the opinion of
any physician when the evidence supports a contrary conclusion.” Bloodworth v.
Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983). Indeed, even a treating physician’s
opinions, which are entitled to more deference than those of Dr. Rogers, may be
rejected if the ALJ has “good cause.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th
Cir. 1997). Here, the ALJ gave Dr. Rogers’ opinions little weight, and explained that
Dr. Rogers “failed to consider [Henry’s] admittedly ongoing alcohol abuse and opined
[Henry’s] substance addiction disorder was in remission despite obvious evidence to the
contrary as well as a lack of recent substance abuse treatment.” (R. 31). Unfortunately
for Henry, there is ample evidence to support the ALJ’s finding that Henry’s substance
abuse was not in remission when she was seen by Dr. Rogers. This evidence includes
Henry’s admission to Dr. Rogers on September 7, 2011, that her “last drinking occasion
was in September, 2011, when she drank a pint.” (R. 603). This means Henry’s last
drinking episode occurred during the week prior to Dr. Rogers’ examination, which

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belies Dr. Rogers’ opinion that her substance abuse was in remission. Henry also
reported to Dr. Rogers that she last smoked marijuana and used opiates in August 2011.
Id. Moreover, Henry presented at the emergency room on July 10, 2011, “under the
influence of alcohol,” and was diagnosed with “alcohol abuse.” (R. 560). This
abundant evidence of ongoing substance abuse just prior to Dr. Rogers’ examination
provides substantial evidence to support the ALJ’s decision to reject Dr. Rogers’
opinion that Henry’s restrictions would exist in the absence of substance abuse.
Accordingly, the ALJ committed no reversible error by rejecting Dr. Rogers’ opinions.
B.

The ALJ’s Finding that Henry’s Substance Abuse is a Factor
Material to Henry’s Disability

Henry next contends that the ALJ erred in considering her substance abuse
because “her main impairment is major depressive disorder.” Doc. 10 at 8.
Unfortunately for Henry, the applicable law does not require substance abuse to be
Henry’s primary or main impairment. Significantly, the pertinent regulations instruct
that when, as here, there is “medical evidence of . . . drug addiction or alcoholism,” the
ALJ “must determine whether [the claimant’s] drug addiction or alcoholism is a
contributing factor material to the determination of disability.” 20 C.F.R. §
404.1535(a) (emphasis added). In short, the regulations do not require substance abuse
to be Henry’s main impairment so long as it is a contributing factor to her disability.
This was precisely the case here.

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A review of the record reveals that the ALJ considered Henry’s substance abuse
in accordance with the applicable regulations, which provide that the “key factor” is
whether Henry would still be found disabled “if [she] stopped using drugs or alcohol.”
20 C.F.R. § 404.1535(b). Consequently, the regulations required the ALJ to decide
which physical and mental limitations “would remain if [Henry] stopped using drugs or
alcohol and then determine whether [those] remaining limitations would be disabling.”
20 C.F.R. § 404.1535(b)(2). After considering the evidence, the ALJ found that if
Henry “stopped the substance use . . . there would be a significant number of jobs in the
national economy [Henry] could perform.” (R. 32-33). Henry contends the ALJ erred
in making this determination because “there are no indications of ongoing substance
abuse since Dr. Rogers’ report with the exception of two relapses reported by [Henry]
herself.” Doc. 10 at 8. These two lapses were reported in December 2011, when Henry
admitted to two episodes of alcohol usage in the past month. (R. 635). However,
contrary to Henry’s suggestion, these two lapses are further evidence supporting the
ALJ’s finding that Henry’s substance abuse was not in remission. Indeed, when these
lapses are considered with the evidence of substance abuse in July, August and
September 2011, see supra Part V.A., it is obvious that substantial evidence supports
the ALJ’s finding that Henry’s substance abuse was ongoing and not in remission.
Moreover, the ALJ afforded great weight to the testimony of Dr. James Anderson, a

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medical expert, who opined after reviewing the medical evidence that Henry’s
“polysubstance abuse is severe and ongoing.” (R. 26, 126).
Ultimately, consistent with the regulations, the ALJ determined that if Henry
stopped using drugs and alcohol, her remaining impairments would not be disabling.
More significantly, Henry bears the burden of proving that her substance abuse is not a
contributing factor material to her disability. See Doughty v. Apfel, 245 F.3d 1274, 1280
(11th Cir. 2001). Henry failed to meet her burden. Because there is substantial evidence
in the record to support the ALJ’s finding, no basis exists to reverse the ALJ.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination that
Henry is not disabled is supported by substantial evidence, and that the ALJ applied
proper legal standards in reaching this determination. Therefore, the Commissioner’s
final decision is AFFIRMED. A separate order in accordance with the memorandum
of decision will be entered.
DONE this 29th Day of September, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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