Wooten v. Commissioner of Social Security
Filing
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MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 9/25/2018. (AFS)
FILED
2018 Sep-25 PM 03:42
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
TONY WOOTEN,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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Civil Action Number
6:17-cv-00486-AKK
MEMORANDUM OPINION
Tony Wooten brings this action pursuant to Section 405(g) of the Social
Security Act (the “Act”), 42 U.S.C. § 405(g), seeking review of the Administrative
Law Judge’s denial of disability insurance benefits, which has become the final
decision of the Commissioner of the Social Security Administration (“SSA”). For
the reasons explained below, in particular because the ALJ relied in part on the
erroneous finding of Dr. Nathan Strahl, the court finds that the ALJ’s conclusion
that alcohol abuse is a contributing factor material to the determination of
disability is not supported by substantial evidence. Therefore, the court reverses
and remands for further consideration.
I. Procedural History
Wooten served for seventeen years in the Army National Guard. R. 100.
During that time, he served as a platoon leader for thirteen months in Iraq and
participated in numerous missions in the aftermath of Hurricane Katrina. R. 10103, 114-15, 291. After leaving the armed services, Wooten worked as a truck
driver and corrections officer before he stopped working in July 2013 at age 47 due
to his alleged disability. R. 36, 321, 329. Wooten filed an application for a period
of disability and disability insurance benefits (“DIB”) on September 15, 2013,
alleging that he suffered from a disability, beginning July 2, 2013 due to post
traumatic stress disorder and pain in his back, neck, and knee. R. 11, 266, 319.
After the SSA denied his application, Wooten requested a hearing before an ALJ.
R. 142, 147, 151. The ALJ ultimately held three hearings—the initial hearing plus
two supplemental hearings so that the ALJ would have the benefit of the testimony
of a medical expert, a board-certified psychiatrist, who reviewed Wooten’s records.
R. 11, 31, 47, 71, 90.
The ALJ subsequently entered a decision finding that Wooten was not
disabled. R. 8. The SSA Appeals Council denied Wooten’s request for review,
rendering the ALJ’s decision the final decision of the Commissioner.
R. 1.
Having exhausted his administrative remedies, Wooten timely filed this petition for
review pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g). Doc. 1.
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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)
and 1383(c) mandate 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.’” Id. (quoting 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, 894 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239). If supported by substantial evidence, the
court must affirm the Commissioner’s factual findings even if the preponderance
of the evidence is against those findings. See id. While judicial review of the
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ALJ’s findings is limited in scope, it “does not yield automatic affirmance.” Lamb,
847 F.2d at 701.
In contrast to the deferential review accorded the Commissioner’s factual
findings, “conclusions of law, including applicable review standards, are not
presumed valid” and are subject to de novo review. Martin, 894 F.2d at 1529. The
Commissioner’s failure to “apply the correct legal standards or to provide the
reviewing court with sufficient basis for a determination that proper legal
principles have been followed” requires reversal. Id.
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 impairment 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)(1). 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). Specifically, the ALJ must determine in sequence:
(1)
whether the claimant is currently unemployed;
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(2)
whether the claimant has a severe impairment;
(3)
whether the impairment meets or equals one listed by the Secretary;
(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.
See 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. (citing 20 C.F.R.
§ 416.920(a)-(f)). “Once [a] finding is made that a claimant cannot return to prior
work the burden of proof shifts to the Secretary to show other work the claimant
can do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). However, the
claimant ultimately bears the burden of proving that he is disabled, and,
“consequently he is responsible for producing evidence in support of his claim.”
See, e.g., Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (citing 20
C.F.R. § 416.945(a), (c)).
The Act precludes an award of benefits when drug or alcohol abuse is a
contributing factor material to the finding of disability.
See 42 U.S.C.
§ 423(d)(2)(C); 20 C.F.R. § 404.1525. Thus, if a claimant is found disabled and
medical evidence of substance abuse exists, the ALJ must determine whether the
substance abuse is a contributing factor to the finding of disability. 20 C.F.R.
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§ 404.1535(a). To do so, the ALJ must evaluate which of the claimant’s physical
and mental limitations would remain if he stopped using drugs or alcohol and then
decide whether any of those remaining limitations would be disabling. Id. at
§ 404.1535(b)(2).
IV. The ALJ’s Decision
In applying the five-step analysis, the ALJ first determined that Wooten met
the insured status requirements of the Act through the date last insured, and that he
had “not engaged in substantial gainful activity since July 2, 2013, the alleged
onset date” of his disability. R. 13. The ALJ proceeded to Step Two, finding that
Wooten had the severe impairments of “anxiety, post-traumatic stress disorder,
alcohol abuse disorder, [and] cervical degenerative changes, status post anterior
cervical discectomy and fusion at C4-5 and C5-6 . . . .” R. 14. The ALJ also found
that Wooten suffered from non-severe knee and heart impairments. Id. At Step
Three, the ALJ concluded that Wooten’s “impairments, including the substance
use disorder, meet sections 12.04, 12.06, and 12.09 of 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d)).” R. 15.
Because Wooten cannot be considered disabled if substance abuse is a
“contributing factor material to the [ALJ’s] determination that [Wooten] is
disabled,” 42 U.S.C. § 423(d)(2)(C), the ALJ did not find Wooten disabled at Step
Three. Rather, in accordance with the SSA’s regulations, the ALJ returned to Step
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Two and found that Wooten would continue to have severe impairments if he
stopped the substance use. R. 15. The ALJ then found that if Wooten “stopped the
substance use, [he] would not have an impairment or combination of impairments
that meets or medically equals any of the impairments listed in 20 CFR Part 404,
Subpart P, Appendix 1 . . . .” R. 16. Next, the ALJ determined Wooten’s residual
functional capacity (“RFC”) if he stopped the substance use, stating that:
[Wooten] would have the [RFC] to perform light work, . . . except he
occasionally can lift and/or carry including upward pulling 20 pounds
occasionally and 10 pounds frequently. He can stand and/or walk
with normal breaks . . . and sit with normal breaks for a total of six
hours in an eight-hour workday. He occasionally can climb ramps
and stairs but cannot work on ladders, ropes, or scaffolds. He
occasionally can balance, stoop, kneel, crouch and crawl. He
occasionally can reach overhead bilaterally. He should avoid
concentrated exposure to extreme cold, extreme heat. He cannot work
around hazardous machinery or unenclosed heights. He is limited to
simple routine tasks. He can have occasional contact with coworkers, supervisors, and the general public.
R. 17.
Based on Wooten’s RFC, and relying on the testimony of a VE, the ALJ
found at Step Four that Wooten is unable to perform any past relevant work. R.
23. The ALJ then proceeded to Step Five, where, based on Wooten’s RFC, age,
prior work experience, and the VE’s testimony, the ALJ concluded that if Wooten
stopped the substance use, “a significant number of jobs exist in the national
economy that he could perform,” including hand packager, assembler, and garment
folder. R. 24. As a result, the ALJ concluded that “[b]ecause the substance use
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disorder is a contributing factor material to the determination of disability,
[Wooten] has not been disabled within the meaning of the [] Act at any time from
the alleged onset date through the date of [the ALJ’s] decision.” Id.
V. Analysis
On appeal, Wooten argues that the ALJ erred by (1) rejecting the opinions of
his treating physician, (2) failing to give weight to Wooten’s disability rating from
the Veterans Administration, and (3) failing to properly evaluate Wooten’s
credibility. Doc. 10 at 3, 29. A central issue running through Wooten’s arguments
is whether the ALJ erred by rejecting Wooten’s testimony that he had stopped
drinking alcohol. Thus, the court begins by addressing that issue before turning to
Wooten’s other arguments.
A.
Whether Substantial Evidence Supports the ALJ’s Determination that
Wooten’s Alcohol Abuse Was Not in Remission
As discussed above, the ALJ found that, with alcohol dependence, Wooten’s
mental impairments meet listings 12.04, 12.06 and 12.09, which deal with affective
disorders, anxiety related disorders, and substance addiction disorders. R. 15. But,
the ALJ ultimately concluded that Wooten is not disabled within the meaning of
the Act because Wooten’s alcohol dependence is a contributing factor material to
the finding of disability. R. 24. The ALJ’s conclusion hinges on his determination
that Wooten was still abusing alcohol in the summer of 2014 and at the time of the
hearings and the ALJ’s decision. See R. 15, 19.
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Wooten’s records reflect that he began drinking heavily after returning from
Iraq in 2004. See R. 572, 681. Wooten went to the VA on October 23, 2013 for
treatment of his alcohol abuse because, among other things, he was having
“increased vigilance, irritability, isolating, poor crowd tolerance, nightmares, and
depression.”
R. 572.
The VA admitted Wooten to an in-patient treatment
program, where he remained until December 10, 2013. R. 572, 600, 637. The VA
treatment records reflect that Wooten benefitted from the program and state that
“Wooten maintained sobriety throughout his duration in the treatment program”
and “met his goal of abstaining from alcohol.” R. 638, 641, 653, 661. At the
administrative hearings in this matter, Wooten testified that he stopped drinking
when he entered the VA treatment program. R. 96-97, 104.1 The ALJ rejected
Wooten’s testimony on that point and found that Wooten continued to abuse
alcohol.
In reaching that decision, the ALJ gave substantial weight to the opinion of
the medical expert, Dr. Strahl, who testified at the third hearing that Wooten’s
mental impairments are made worse by ongoing alcohol abuse.
R. 15-16.
Specifically, Dr. Strahl testified that Wooten’s VA records contain “clear
evidence” that Wooten was still drinking alcohol in June 2014. R. 49. Among
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Wooten reported to Dr. Alan Blotcky that he stopped drinking in January 2014, the date
that he claimed the VA treatment program ended. R. 1004. Dr. Strahl, the medical expert who
testified at Wooten’s hearings, expressed no concern about this discrepancy regarding when
Wooten stopped drinking, R. 48-49.
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other things, Dr. Strahl contends that the VA records from March – December
2014 state that Wooten should “set a date to quit drinking ideally within two
weeks.” R. 53. But, the records contain no such statement related to alcohol.
Rather, the statements in question, counseling Wooten to “[s]et a quit date, ideally
within 2 weeks,” refer to Wooten’s use of tobacco products. R. 1098, 1111. It is
unclear how and to what extent Dr. Strahl’s incorrect interpretation of the VA
records colored his opinion about whether Wooten’s alcohol abuse was in
remission.
Moreover, a review of the VA treatment records also questions Dr. Strahl’s
opinion that Wooten was still drinking in the summer of 2014. As Dr. Strahl
points out, the records contain statements dated June 9 and September 9, 2014 that
Wooten has “cut back on the alcohol a lot.” R. 54; see also R. 1099, 1102. Dr.
Strahl notes that cutting back on alcohol is not necessarily the same as quitting. R.
54. Although this is indeed generally the case, it is not a clear admission here that
Wooten was still drinking because Wooten’s September 9, 2014 treatment notes do
not list alcohol dependence or alcohol abuse as active problems. R. 1099.
In addition to relying on Dr. Strahl, there are other contentions that cause the
court to question whether substantial evidence supports the ALJ’s determination.
First, as the ALJ noted, Wooten’s June 9, 2014 treatment notes include alcohol
dependence (diagnosed on August 21, 2013) and alcohol abuse (diagnosed on
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December 12, 2006) in a list of almost forty active problems. R. 1103; see also R.
18.
However, the June treatment notes do not identify alcohol abuse or
dependence as a current diagnosis, but rather identify Wooten’s only diagnosis as
PTSD. R. 1103, 1105.2 In addition, the list of Wooten’s active problems from
June 2014 also includes a diagnosis of indigestion from 2013 and a diagnosis of
chest pain from 2004. R. 1103. Therefore, it is not clear if the June 2014 list of
active problems was current.
Second, the ALJ also notes that Wooten’s June 9, 2014 treatment records
show that Sondra Wilder, a nurse practitioner, recommended that Wooten “slowly
taper alcohol as discussed.” R. 18. Indeed, the VA treatment notes from Wooten’s
appointments with Ms. Wilder on December 30, 2013; March 10, 2014; June 9,
2014; September 9, 2014; and December 10, 2014 contain a section titled
education that includes the recommendation to “slowly taper alcohol as discussed”
along with four other recommendations.
R. 644, 1095, 1100, 1105, 1109.
However, treatment notes from those dates also reflect that Wooten denied alcohol
use, and, as noted above, the VA removed alcohol dependence and alcohol use
from Wooten’s diagnoses and list of active problems during that time period. See
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VA treatment notes dated December 30, 2014 included both PTSD and alcohol abuse as
Wooten’s diagnoses. R. 644.
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R. 1094-95, 1099-1100, 1107. The ALJ does not discuss those aspects of the
records in his decision or explain why he found them less credible.
Finally, in reaching his decision that alcohol abuse is a contributing factor to
Wooten’s disability, the ALJ states that “[w]ith regard to alcohol abuse, . . . the last
evidence from the Veterans Administration is dated more than a year before the
hearing, and this indicated that [Wooten] was drinking but functioned better when
he did not drink.” R. 19. However, the most recent treatment notes in the record
from the VA are dated December 10, 2014 (just one month before the second
hearing and five months before the third hearing before the ALJ), and those notes
make no mention of Wooten drinking.
See R. 1094-95.
Rather, the notes
explicitly state that Wooten denied alcohol use, and alcohol abuse is not identified
as one of Wooten’s diagnoses or active problems. Id. Once again, however, the
ALJ did not discuss those VA records in his decision.
As the record currently stands, it seems the ALJ focused only on the
evidence that supports his decision that Wooten’s alcohol abuse was not in
remission and ignored entries that support Wooten’s testimony that he had stopped
drinking. When the ALJ “focus[es] upon one aspect of the evidence and ignore[es]
other parts of the record . . . , [the court] cannot properly find that the
administrative decision is supported by substantial evidence.” McCruter v. Bowen,
791 F.2d 1544, 1548 (11th Cir. 1986). On remand, the ALJ should reconsider the
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medical evidence regarding Wooten’s alcohol abuse and consult with Dr. Strahl, or
another medical expert, as necessary, to determine if indeed Wooten was still
abusing alcohol and if Wooten’s alcohol abuse was a contributing factor material
to the determination of disability.
B.
Whether the ALJ Erred by Giving Little Weight to the Opinions of
Wooten’s Treating Physician
Wooten argues that the ALJ failed to properly weigh the opinions of his
treating physician, Dr. S. Keith Morrow. Doc. 10 at 31-39. The ALJ must give
“substantial or considerable weight” to the opinion of a treating physician “unless
‘good cause’ is shown.” Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir.
2003) (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). “Good
cause exists ‘when []: (1) [the] treating physician’s opinion was not bolstered by
the evidence; (2) evidence supported a contrary finding; or (3) [the] treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.’” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011)
(quoting Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004)). The ALJ
must clearly articulate the reasons for not giving substantial or considerable weight
to a treating physician’s opinions. Id.
In particular, Wooten contends that the ALJ should have given more weight
to opinions contained in a February 24, 2014 letter from Dr. Morrow. See doc. 10
at 33. In the letter, Dr. Morrow states that “Wooten has multiple medical problems
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that now preclude him from being able to return to work.” R. 995. He further
opined that Wooten’s medical problems “have greatly impacted [his] quality of
life” and that “Wooten [] has episodes of severe insomnia, agitation and difficulty
focusing.” Id. The ALJ considered those opinions, but gave them little to no
weight. R. 19-20.
As an initial matter, Dr. Morrow’s opinion that Wooten is precluded from
returning to work is not a medical opinion, but is instead a legal issue reserved for
the Commissioner. See 20 C.F.R. § 404.1527(d); Coheley v. Soc. Sec. Admin., 707
Fed. Appx. 656, 659 (11th Cir. 2017); Hutchison v. Astrue, 408 Fed. Appx. 324,
327 (11th Cir. 2011) (finding that an opinion regarding whether a claimant “could
hold a job is a vocational opinion, not a medical one” and is a “question reserved to
the ALJ”). As such, the opinion is not entitled to any weight, see 20 C.F.R.
§ 404.1527(d)(3), and the ALJ did not err by giving it no weight.
With respect to the remaining opinions expressed by Dr. Morrow, the ALJ
gave those opinions little weight in part because Dr. Morrow failed to provide
medical evidence to support his assessment. R. 20. While that is true as to the
letter Dr. Morrow provided, Wooten’s medical record is replete with records that
support Dr. Morrow’s assessment, including Dr. Morrow’s own diagnoses of
Wooten with PTSD, anxiety, and depression. R. 406, 420, 998, 1000-02, 1122,
1124-25, 1129. In any event, ultimately, it seems the ALJ gave little weight to Dr.
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Morrow’s opinions because Dr. Morrow “did not consider the impact of alcohol on
[Wooten’s] ability to function.” R. 20. Indeed, nowhere in Dr. Morrow’s opinion
does he address the impact, if any, of Wooten’s alcohol abuse on Wooten’s
medical conditions. In that regard, good cause exists for the ALJ to disregard the
opinion. However, because the ALJ’s finding that Wooten’s alcohol abuse was not
in remission is not supported by substantial evidence, see pp. 8-13, supra, on
remand, if the ALJ determines that Wooten’s alcohol abuse is in remission, then
the ALJ should revisit and re-weigh the opinions in Dr. Morrow’s February 24,
2014 letter.
C.
Whether the ALJ Erred by Giving No Weight to Wooten’s Disability
Determination from the VA
Wooten contends that the ALJ committed reversible error by failing to give
great weight to his disability determination from the VA. Doc. 10 at 39-42. Under
SSA regulations, a disability determination by another federal agency is not
binding on the SSA.
20 C.F.R. § 404.1504.
Nevertheless, in this Circuit,
“‘although the VA’s disability rating is not binding on the SSA, it is evidence that
should be given great weight.’” Brown-Gaudet-Evans v. Comm’r of Soc. Sec., 673
Fed. Appx. 902, 904 (11th Cir. 2016) (quoting Brady v. Heckler, 724 F.2d 914,
921 (11th Cir. 1984)) (alteration in original omitted). That is not to say that an
ALJ cannot discount a disability determination from the VA; instead, “the ALJ
must seriously consider and closely scrutinize the VA’s disability determination
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and must give specific reasons if the ALJ discounts that determination.” Id. (citing
Rodriguez v. Schweiker, 640 F.2d 682, 686 (5th Cir. 1981)).
Here, the VA issued a rating decision giving Wooten a seventy percent
disability rating effective January 1, 2014 due to Wooten’s PTSD. R. 279-81.3
The ALJ recognized the VA’s disability rating, but did not assign it weight because
“a review of the determination show this rating is based entirely upon the
subjective statements of [Wooten] to the VA, and the VA ratings did not include
the effects of alcohol abuse as contributing factors to the disability . . . .” R. 19.
As an initial matter, the ALJ erred by stating that the rating is based entirely upon
Wooten’s subjective statements.
Instead, the rating identifies eleven different
items that support the decision, including a review of Wooten’s VA medical
records and a March 10, 2014 examination by a VA psychologist. R. 279-80.
However, the ALJ is correct that the VA did not consider whether alcohol abuse is
a contributing factor to the finding of disability, which the SSA regulations require
the ALJ to consider. See R. 19. That particular discrepancy between the VA
determination and the SSA regulations provides good cause to discount the VA’s
disability determination.
Still, as discussed above, the ALJ’s finding that
Wooten’s alcohol abuse was not in remission is not supported by substantial
3
The VA gave Wooten a temporary disability rating of one-hundred percent effective
October 23, 2013-December 31, 2013 based on his in-patient stay in the VA treatment program.
R. 279-80.
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evidence. Thus, on remand, if the ALJ determines that Wooten’s alcohol abuse
was in remission, then the ALJ must revisit his assessment of the VA’s disability
determination.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s finding that
Wooten’s active alcohol abuse was a contributing factor material to the
determination of disability is not supported by substantial evidence. Accordingly,
the court REVERSES the ALJ’s decision denying benefits and REMANDS for
further consideration consistent with this Memorandum Opinion. Specifically, the
ALJ should revisit his finding related to Wooten’s current alcohol use and the
extent it is based on Dr. Strahl’s erroneous interpretation of the VA records. If, on
remand, the ALJ finds that Wooten’s alcohol abuse was in remission, then the ALJ
must revisit his assessments of Dr. Morrow’s February 24, 2014 opinions and the
VA’s disability determination.
DONE the 25th day of September, 2018.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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