Stokley v. Astrue

Filing 22

MEMORANDUM OPINION AND ORDER entered, Oral argument was waived in this action 20 . Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 10/19/2011. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

DANA G. STOKLEY,
on behalf of ROGER G. STOKLEY,

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Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commission of Social Security,
Defendant.

CIVIL ACTION 11-0125-M

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff1 seeks judicial review of an adverse social security
ruling which denied claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI).

The parties

filed written consent and this action has been referred to the
undersigned Magistrate Judge to conduct all proceedings and
order the entry of judgment in accordance with 28 U.S.C. §
636(c) and Fed.R.Civ.P. 73 (see Doc. 21).
waived in this action (Doc. 20).

Oral argument was

Upon consideration of the

administrative record and the memoranda of the parties, it is

1

Dana G. Stokley appears on behalf of her deceased husband, Roger
G. Stokley, who died on September 13, 2009 (Tr. 21, 123).

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ORDERED that the decision of the Commissioner be AFFIRMED and
that this action be DISMISSED.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
evidence.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires "that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance."

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205
(D. Md. 1982).
At the time of his death, Plaintiff was fifty-four years
old, had completed his GED (Doc. 14 Fact Sheet; cf. Tr. 373),
and had previous work experience as a service technician, a
small engine repair mechanic, and auto mechanic (Tr. 47, 51).
In claiming benefits, Stokley alleges disability due to
dementia, neck pain, high blood pressure, and a status-post
triple bypass (Doc. 14 Fact Sheet).
The Plaintiff filed protective applications for disability
benefits and SSI on September 2, 2008 (Tr. 106-14; see Tr. 21).
2

Benefits were denied following a hearing by an Administrative
Law Judge (ALJ) who determined that Stokley’s substance abuse
disorder met the requirements of Listing 12.02, but that if he
had stopped abusing alcohol, he would not have met any of the
Listing requirements and would have been able to perform a
limited range of light work (Tr. 21-31).

Plaintiff requested

review of the hearing decision (Tr. 15-16) by the Appeals
Council, but it was denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
alleges that:

Specifically, Stokley

(1) The ALJ did not properly consider Plaintiff’s

vascular dementia in finding him not disabled because of his
alcohol dementia; and (2) the ALJ failed to make a credibility
determination regarding the testimony of Plaintiff’s Widow (Doc.
14).

Defendant has responded to—and denies—these claims (Doc.

15).

The relevant evidence of record follows.2
On March 2, 2007, Stokley was examined by Dr. Phillip A.

Pybass who diagnosed him to suffer from acute bronchitis,
hypertension, COPD, coronary artery disease, dyslipidemia,
history of alcohol use with hepatitis and pancreatitis, tobacco

2

The Court notes that the medical evidence exceeds six hundred
pages, yet only a very small portion is referenced in Plaintiff’s
brief (see Doc. 14). As such, the Court will only summarize the

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dependence, history of hyperglycemia, and medical noncompliance
(Tr. 345-37).

The doctor prescribed appropriate medications and

twice, within his assessment plan, indicated the need for
Plaintiff to quit drinking alcohol (Tr. 346).

In a follow-up

examination two weeks later, Stokley indicated that he had cut
back on his alcohol intake, but had not quit; Dr. Pybass again
stressed the need for total cessation (Tr. 342).

On August 6,

the doctor noted that although Plaintiff had run out of some of
his medications, he had not gotten them refilled (Tr. 338-39).
Plaintiff was admitted to Bradford Health Services for
detoxification and alcohol treatment on June 16, 2008 and was
discharged on Independence Day (Tr. 245-63).

On June 27, a

psychiatric examination was conducted and symptoms of dementia
and significant cognitive impairment were noted; the
Psychiatrist noted short-term and significant long-term memory
issues (Tr. 252-53).

Insight and judgment were impaired.

The

examiner specifically noted that Stokley “definitely has
evidence of dementia.

His cognitive impairment may be in part

due to an acute organic brain syndrome from elevated ammonia
level, but [he] has significant short-term memory problems” (Tr.
253).

The diagnosis was alcohol dependence, depressive

portions it considers necessary to discuss the claims raised herein.

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disorder, and dementia, alcohol and vascular type; the
Psychiatrist specifically noted that Plaintiff needed “a full
neuropsychological evaluation for his cognitive impairment”
(id.).

At discharge, it was noted that Stokley’s overall

progress was fair and his prognosis was fair if he followed
specific recommendations that had been made (Tr. 247).
On July 18, 2008, Dr. Pybass noted a recent hospitalization
for alcoholic pancreatitis and acute renal failure and that
Stokley had left the hospital against medical advice (Tr. 336).
Though Plaintiff had gone to an alcohol treatment program, he
had left the facility and was still drinking; the treatment
facility had suggested that Stokley’s dementia could be vascular
in nature in addition to being related to his alcohol abuse
(id.).

The doctor modified his assessment to include “Alcoholic

dementia/vascular dementia” and noted that he would have
Plaintiff undergo a course of Aricept (id.).3

Pybass

discontinued the Aricept at the examination on August 18 as it
was causing nausea, vomiting, dyspepsia, and diarrhea; the
doctor also took Stokley off statins because of his continuing
to drink (Tr. 334).

Dr. Pybass listed alcohol dementia and

3

Aricept is used in the treatment of dementia, Alzheimer’s type.
Error! Main Document Only.Physician's Desk Reference 1075-1079 (62nd
ed. 2008).

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vascular dementia as separate diagnoses (id.).
A consultative examination was conducted on January 15,
2009 by Psychologist Jack C. Carney in which Stokley’s wife
provided family and medical history, including Plaintiff’s abuse
of alcohol and lortab (Tr. 373-77).

She specifically reported

that Stokley had drunk a pint of vodka the day before the
examination and a pint and one-half the day before that, though
he had not had anything that day.

Carney noted that Plaintiff’s

mood and affect were appropriate and that he did not appear
anxious; he was oriented to place and person, though he did not
know the day of the week.

Stokley could remember what he had

done before coming to the examination though he had no
recollection of anything from the day before; immediate and
remote memory were pretty good.

His fund of information and

ability to abstract were good; there were no signs of confusion,
loose associations, tangential, or circumstantial thinking.
Judgment was poor; Plaintiff had little insight into himself or
his condition.

Stokley underwent the WAIS-III and scored a

Verbal IQ of 98, a Performance IQ of 92, and a Full Scale IQ of
96, placing him in the average range of intelligence.

Plaintiff

also took the Wechsler Memory Scale-III on which he scored,
overall, in the Borderline range.
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The Psychologist’s diagnosis

was alcohol and nicotine dependence; his prognosis was “mild to
moderate memory deficits that would likely remediate if he would
discontinue his alcohol and nicotine abuse” (Tr. 377).

Finally,

Carney stated that “Stokley appears to have decompensated
through the abuse of alcohol since he was first placed on a
worker’s comp medical leave in June 2007” (Tr. 377).
At the evidentiary hearing, Plaintiff’s Widow testified
that her husband had last worked as a service technician for
Sears for more than ten years but that they had terminated him
because he was unable to focus on his responsibilities (Tr. 4748).

She further stated that he had been diagnosed with

dementia by Dr. Pybass, who prescribed Aricept which would slow
the progression of the dementia but not reverse it (Tr. 49-50).
The Widow testified that Stokley was confused and could not
remember to do things, even with a list; he could not even
remember, at the end of the day, if he had eaten or not (id.).
A vocational expert (hereinafter VE), Gail Jarrell,
testified about Stokley’s previous jobs and stated that he would
not have been able, because of his medical conditions as defined
by the ALJ, to have performed any of that work (Tr. 50-52).

In

answering a hypothetical question posed by the ALJ, the VE named
specific light jobs which Plaintiff could have performed (Tr.
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52-53).

The VE also testified that if the Widow’s testimony

concerning her husband’s dementia was credible, the Deceased
would have been unable to perform any work (Tr. 53-54).
In her determination, the ALJ summarily reviewed the
medical evidence provided by Psychologist Carney (Tr. 24-26).
The ALJ, however, made no mention of Stokley’s treatment at
Bradford (see Tr. 244-63), the multiple admissions to Springhill
Memorial Hospital (see Tr. 447-881), or much of any of the rest
of the medical evidence.4

The ALJ went on to give significant

weight to the opinion of Psychologist Carney (Tr. 29) and to
find that Plaintiff’s “allegations concerning the intensity,
persistence and limiting effects of these symptoms were not
credible” (Tr. 27).

The ALJ went on to adopt the testimony of

the VE, concerning Stokley’s ability to work, as her own (Tr.
30).
Plaintiff has claimed that the ALJ failed to properly
consider Plaintiff’s vascular dementia in finding him not
disabled because of his alcohol dementia (Doc. 14, pp. 2-5).
The Court has noted the ALJ’s failure to discuss the records
from Bradford where it was first suggested that Stokley may

4

The Court has reviewed the evidence, though not summarized it
herein, and finds that the evidence provides much evidence of
Plaintiff’s alcoholic abuse, but nothing else that is pertinent to the

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suffer from vascular dementia, a diagnosis picked up by his
treating physician, Dr. Pybass.

However, the Court further

noted that the Bradford psychiatrist suggested that Plaintiff
may suffer from an acute organic brain syndrome and to make that
determination, there needed to be a full neuropsychological
evaluation (Tr. 253).

There is nothing in the record—and

Plaintiff has failed to direct the Court’s attention to
anything—which indicates that this evaluation was made.

As

such, the Court finds that, while there is evidence of vascular
dementia, there is no evidence which indicates the extent of its
effect on Plaintiff.

If Stokley had undergone the

neuropsychological evaluation as instructed, that information
might be available.
Plaintiff also claims that the ALJ failed to make a
credibility determination regarding the testimony of Plaintiff’s
Widow (Doc. 14, pp. 5-7).

More specifically, the objection

revolves around the Widow’s testimony that “doctors had informed
them that the Plaintiff’s dementia could not be reversed” (Doc.
14, p. 5).

The Court notes that the ALJ is required to "state

specifically the weight accorded to each item of evidence and
why he reached that decision."

Cowart v. Schweiker, 662 F.2d

claims raised herein.

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731, 735 (11th Cir. 1981).
Plaintiff is correct in arguing that the ALJ did not make a
credibility determination regarding the Widow’s testimony.
However, it is, in this instance, only harmless error.

While

the Wife’s testimony may be factually correct, there is no
evidence of it in the record.

She cannot speak as a medical

source; as such, she is only relaying what she was told.

As

that evidence does not appear in the medical evidence, it cannot
be considered as part of the evidence.

The ALJ’s failure to

state this in her determination is, at most, harmless error.
Plaintiff has raised two claims in bringing this action.
Both are without merit.

Upon consideration of the entire

record, the Court finds "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
Perales, 402 U.S. at 401.

Therefore, it is ORDERED that the

Secretary's decision be AFFIRMED, see Fortenberry v. Harris, 612
F.2d 947, 950 (5th Cir. 1980), and that this action be
DISMISSED.

Judgment will be entered by separate Order.

DONE this 19th day of October, 2011.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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