Broughton v. Astrue

Filing 18

MEMORANDUM OPINION AND ORDER entered. Oral argument was waived in this action. 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 5/24/2013. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DONNIE L. BROUGHTON, JR.

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Commission of Social Security,1
Defendant.

CIVIL ACTION 12-609-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g), Plaintiff seeks
judicial review of an adverse social security ruling which
denied a claim for disability insurance benefits (Docs. 1, 11).
The action was referred for report and recommendation pursuant
to 28 U.S.C. § 636(b)(1)(B).

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. 16).

Oral argument was waived in this action (Doc. 17).

1

Carolyn W. Colvin became the Commissioner of Social Security on
February 14, 2013. Pursuant to Fed.R.Civ.P. 25(d), Colvin is
substituted for Michael J. Astrue as Defendant in this action. No
further action needs to be taken as a result of this substitution. 42
U.S.C. § 405(g).

1

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.
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 the second administrative hearing, Plaintiff
was twenty-six years, had completed one and one-half years of
college (Tr. 47), and had previous work experience as a courier
(Tr. 50).

In claiming benefits, Plaintiff alleges disability

due to post-traumatic stress disorder, migraine headaches,
lumbar degenerative disc disease, bilateral shoulder crepitus
and rotator cuff dysfunction, major depressive disorder, and
anxiety disorder (Doc. 11 Fact Sheet).
2

The Plaintiff filed an application for disability benefits
on April 15, 2010 (Tr. 143-47; see also Tr. 10).

Benefits were

denied following a hearing by an Administrative Law Judge (ALJ)
who determined that Broughton could not perform his past
relevant work and that if he ceased his drug and alcohol abuse,
he would be able to perform specific jobs existing in the
national economy (Tr. 10-23).

Plaintiff requested review of the

hearing decision (Tr. 5) by the Appeals Council, but it was
denied (Tr. 1-3).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.

Specifically, Broughton

alleges the single claim that the ALJ failed to fully evaluate
his 70% disability rating by the Department of Veterans Affairs
(hereinafter VA) (Doc. 11).

Defendant has responded to—and

denies—these claims (Doc. 12).

The relevant evidence of record

follows.
On December 21, 2009, office treatment notes from the Gulf
Coast Veterans Health Care show that Broughton was seen for
complaints of lower back pain; he was told to take an NSAID
three times a day and was referred to physical therapy and pain
management (Tr. 307-15; see generally Tr. 240-322, 341-422, 442-

3

He was given prescriptions for Zoloft,2 Trazodone,3 and

55).

Zomig4 for migraine headaches (Tr. 309).

Broughton admitted to

alcohol abuse, but stated that he was trying to quit on his own,
declining admission to a cessation clinic (Tr. 309).

On January

12, 2010, Plaintiff stated that he drank a fifth of whiskey at a
time once weekly; he denied using illicit drugs (Tr. 293-307).
Testing showed that Broughton perceived his mental health as
severely impaired compared to others; he rated his average pain
as eight on a ten-point scale (Tr. 300).

On March 18, Plaintiff

complained of depression, anger, social isolation, and chronic
pain; he also discussed a lack of sleep and having nightmares
and flashbacks (Tr. 281-87).

On examination, Broughton was

oriented in three spheres and his mood was depressed; thought
processes were grossly organized and goal directed.

Suicidal

and homicidal ideation had increased; he was diagnosed to have
the following:

PTSD; depressive disorder, NOS; generalized

anxiety disorder; alcohol abuse in remission; migraine
headaches; and chronic lower back pain (Tr. 286).

On April 19,

Plaintiff stated that he had not had a drink for one and one2

Error! Main Document Only.Zoloft is “indicated for the treatment
of depression.” Physician's Desk Reference 2229-34 (52nd ed. 1998).
3
Error! Main Document Only.Trazodone is used for the treatment of
depression. Physician's Desk Reference 518 (52nd ed. 1998).
4
Zomig is used in the treatment of migraine headaches. Error!
Main Document Only.Physician's Desk Reference 678-79 (62nd ed. 2008).

4

half months; Prozac5 was substituted for his Trazodone
prescription (Tr. 275-79).

His psychiatrist indicated that

Broughton’s GAF was 456 (Tr. 278).

On May 4, he stated that he

gets drunk and goes to sleep; Broughton also stated, though,
that the last time he had used alcohol was three beers two weeks
earlier (Tr. 269, 271; see generally Tr. 265-75).

Plaintiff

also reported that he used marijuana every other night to help
him sleep (Tr. 271).

After her examination of Broughton, an

examining clinical psychologist stated the following:
PTSD was not diagnosed in the current
exam due to inconsistencies in Veteran’s
reports of stressors and symptoms today and
with recent VA treatment records. The
information gained in the clinical interview
did not support a diagnosis of PTSD, rather
Veteran appears to be experiencing symptoms
of depression, which may be due to his
substance use.
(Tr. 275).
Treatment records from Commander USA Medic show that
Broughton was treated between June 18 and July 9, 2010 for
backaches, cervical radiculopathy, migraines, and acute renal

5

Error! Main Document Only.Prozac is used for the treatment of
depression. Physician's Desk Reference 859-60 (52nd ed. 1998).
6
“A GAF score in the 40’s indicates serious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent shoplifting)
or any serious impairment in social, occupational, or school
5

therapy (Tr. 465-97).
On August 2, 2010, the VA issued a letter stating that it
had determined that Broughton had demonstrated a “[s]ervice
connection for depressive disorder, not otherwise specified
(NOS) with cannabis abuse and alcohol dependence (also claimed
as anxiety disorder)” and that he was seventy percent disabled,
effective November 20, 2009 (Tr. 231; see generally Tr. 226-38).
On September 3, 2010, a mental residual functional capacity
(hereinafter RFC) assessment was completed by non-examining
Psychologist Clare Rubin who indicated that Broughton was
moderately limited in his ability to do the following:

carry

out detailed instructions; maintain attention and concentration
for extended periods; perform activities within a schedule,
maintain regular attendance, and be punctual within customary
tolerances; complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform
at a consistent pace without an unreasonable number and length
of rest periods; interact appropriately with the general public;
accept instructions and respond appropriately to criticism from
supervisors; get along with coworkers or peers without
distracting them or exhibiting behavioral extremes; and set

functioning (e.g., no friends, unable to keep a job).”

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realistic goals or make plans independently of others (Tr. 32326).

Rubin indicated that these were not substantial

limitations (Tr. 325).

On that same date, Rubin completed a

Psychiatric Review Technique Form in which she indicated that
Broughton had Depressive Disorder NOS; rule out PTSD; Antisocial
Personality Disorder; and Substance Addiction Disorders (Tr.
327-40).

The Psychologist expressed the view that Plaintiff had

moderate degrees of limitation in his activities of daily
living, in maintaining social functioning, and in maintaining
concentration, persistence, or pace.
On September 29, 2010, Plaintiff underwent an MRI of the
lumbar spine at the Mobile Infirmary Medical Center that
demonstrated degenerative changes of the intervertebral disc
spaces with the L3-L4 being essentially collapsed (Tr. 438-40).
On November 12, 2010, records from Saint Simons By-the-Sea
show that Plaintiff used marijuana daily and had done so for
years (Tr. 427-35).

His mood was depressed and his affect flat;

thought content was paranoid with delusions and he had been
experiencing suicidal and homicidal ideation.

Broughton had

fair insight and judgment; his diagnosis was Schizophrenia
paranoid type and PTSD.

He was to continue taking Prozac and

http://www.gafscore.com/

7

add Zyprexa7 and Topomax8 to his medicinal regimen.
On October 10, 2011, Orthopedist Dr. William A. Crotwell
examined Broughton and found no objective evidence of cervical
or lumbar strain and no radiculopathy (Tr. 499-502).

The

Orthopedic went on to find that Plaintiff “could carry out
normal work activities. He could definitely carry out medium,
light, and sedentary.

He could definitely work an eight hour

work day” (Tr. 500).

Crotwell completed a physical capacities

evaluation in which he indicated that Broughton was capable of
sitting, standing, and walking, each, for four hours at a time
and was capable of each of these activities for eight hours
during an eight-hour workday (Tr. 502).

The doctor went on to

find that Plaintiff could lift and carry up to twenty-five
pounds continuously, fifty pounds frequently, and one hundred
pounds occasionally.

Broughton was also capable of using his

hands for simple grasping, pushing and pulling of arm controls,
and fine manipulation; he could use his legs for pushing and
pulling of leg controls.

Plaintiff was capable of bending,

squatting, crawling, climbing, and reaching on a continual

7

Error! Main Document Only.Zyprexa is used for the “management of the
manifestations of psychotic disorders.” Physician's Desk Reference
1512 (52nd ed. 1998).
8
Topomax is used in the treatment of migraine headaches. Error!
Main Document Only.Physician's Desk Reference 2378-79 (62nd ed. 2008).

8

basis.
On May 18, 2011, treatment notes from the VA show that
Plaintiff had complaints of back and neck pain, a migraine
headache, and having recently vomited blood; a chest x-ray was
normal (Tr. 515, 530-31; see generally Tr. 503-31).

On July 12,

Broughton complained that he was out of his medicine and had
been for a while; medications were prescribed (Tr. 523-25).
was listed at 45.

GAF

X-rays of the chest, back, and right shoulder

were all negative (Tr. 512-14).

On August 11, Plaintiff went to

the VA, complaining of back pain; he left before seeing a doctor
(Tr. 518-23).

This is the conclusion of the relevant evidence.

On June 14, 2011, Psychologist John W. Davis examined
Plaintiff and reported the following remarks from him:
He reports he drinks “as much as I can
get my hands on.” He reports he knows that
he over drinks and has been to AA “many
times.” He does not smoke. He has past
treatment for alcohol abuse in 2008 and
2009. He reports he smokes marijuana daily,
stating it is the only thing that keeps him
calm.
(Tr. 457; see generally Tr. 456-63).

Davis reported anxiety and

depression, but noted that Broughton had the capacity for a full
range of emotions; immediate, recent, and remote memory were
good.

The Psychologist noted loose associations, tangential and
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circumstantial thinking, and confusion; there were indications
of hallucinations.

Insight and judgment were impaired;

intellectual level was considered to be low average.

The MMPI

was administered, but the results were thought to be invalid.
Davis’s diagnosis was PTSD, Anxiety Disorder, and Rule out
Schizophrenia/Chronic Undifferentiated Type; the Psychologist
thought that Plaintiff’s prognosis was guarded as he would be
unlikely to have a reasonable response to therapy within twelve
months.

Davis stated that Broughton’s “symptoms [were] so

bizarre that he is really either schizophrenic or else
excessively malingering” (Tr. 460).

The Psychologist went on to

find that Plaintiff would be markedly limited in his ability to
do the following:

understand, remember, and carry out simple

and complex instructions; make judgments on simple and complex
work-related decisions; interact appropriately with the public,
supervisors, and co-workers; and respond appropriately to usual
work situations and changes in routine settings.
Plaintiff has claimed that the ALJ failed to full evaluate
his 70% disability rating by the VA (Doc. 11).

As part of her

claim, Broughton has pointed to the following instructive
language:
Under sections 221 and 1633 of the Act,
10

only a State agency or the Commissioner can
make a determination based on Social
Security law that you are blind or disabled.
Our regulations at 20 CFR 404.1527(e) and
416.927(e) make clear that the final
responsibility for deciding certain issues,
such as whether you are disabled, is
reserved to the Commissioner (see also SSR
96-5p, “Titles II and XVI: Medical Source
Opinions on Issues Reserved to the
Commissioner”). However, we are required to
evaluate all the evidence in the case record
that may have a bearing on our determination
or decision of disability, including
decisions by other governmental and
nongovernmental agencies (20 CFR 4
04.1512(b)(5) and 416.912(b)(5)).
Therefore, evidence of a disability decision
by another governmental or nongovernmental
agency cannot be ignored and must be
considered.
Social Security Ruling 06-03p.
In his determination, the ALJ specifically noted the
following:

“In terms of the claimant’s mental impairments, the

claimant was awarded a 70% service connected disability for
depressive disorder, cannabis abuse and alcohol dependence
(Exhibit 15E)” (Tr. 18).

The ALJ went on to note that Broughton

“has a history of noncompliance and facially criminal conduct,
including the claimant’s chronic drug and alcohol abuse” (Tr.
20).

The ALJ found that Plaintiff’s impairments, including the

substance use disorders, meet certain of the Listings (Tr. 13).
The ALJ went on to find that if he stopped the substance use, he
11

would still have severe impairments, but that they would not
meet or equal any of the Listings of Disability (Tr. 15).
In reaching this determination, the ALJ found that
Broughton’s statements about his pain and limitations were not
credible (Tr. 17, 19-21).

Among the reasons for this decision,

the ALJ credited the Orthopedic report of Dr. Crotwell, the
failure of the objective medical evidence to support Broughton’s
claims, his history of noncompliance with doctor’s orders, and
inconsistencies of the treatment records compared to Plaintiff’s
own statements.

The Court notes that Broughton has not

challenged any of these credibility findings.
Plaintiff has challenged, however, the ALJ’s rejection of
the conclusions of Psychologist Davis (Doc. 11, pp. 3-4).

The

ALJ specifically gave “no weight” to Davis’s conclusions, noting
that the Psychologist had failed to diagnose a substance abuse
disorder “[a]lthough the claimant reported significant, ongoing
substance abuse” (Tr. 21).

The ALJ also noted that Davis had

specifically stated that he had considered the VA records, which
indicated that Broughton had been diagnosed with alcohol abuse,
and still failed to include substance abuse among Broughton’s
impairments in reaching his conclusions.

Finally, the ALJ

discredited the Psychologist’s opinions because he had found
12

Plaintiff markedly limited, stating that he was giving Broughton
the benefit of the doubt “unless there is ‘other info that might
prove otherwise, which would change [Davis’s] ratings [from
marked] to mild;’” the ALJ pointed out that the VA had provided
sufficient information from which Davis could have formed a
different opinion (Tr. 22; cf. Tr. 461).
The Court finds that the ALJ’s conclusions are supported by
substantial evidence.

The VA’s disability rating is based, at

least in part, on his substance abuse of alcohol and marijuana.
It was proper for the ALJ to consider that information and
reject it as a basis for finding that Broughton is not disabled.
The ALJ’s discrediting of Psychologist Davis’s conclusions,
likewise, is supported by substantial evidence.

Plaintiff’s

claim otherwise is without merit.
Broughton has raised a single claim in bringing this
action.

That claim is 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
13

separate Order.
DONE this 24th day of May, 2013.

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

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