Lott v. Astrue

Filing 21

Order that the decision of the Commissioner of Social Security denying plaintiff's benefits is AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 2/26/2014. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STEPHEN F. LOTT,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,1
Defendant.

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) CIVIL ACTION NO. 12-00755-N
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ORDER

Plaintiff Stephen F. Lott (“Lott”) filed this action seeking judicial review of a final
decision of the Commissioner of Social Security (“Commissioner”) that he was not entitled to
disability insurance benefits (“DIB”) under Title II of the Social Security Act (the Act), 42
U.S.C. §§ 401-433, or to Supplemental Security Income benefits (SSI) under Title XVI of the
Act, 42 U.S.C. §§ 1381-1383c. Pursuant to the consent of the parties (doc. 14), 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. The
parties’ joint motion to waive oral arguments (doc. 15) was granted on June 6, 2013 (doc. 17).
Upon consideration of the administrative record (doc. 10), and the parties’ respective briefs
(docs. 11 and 12), the undersigned finds that the decision of the Commissioner is due to be
AFFIRMED.
I. Procedural History.

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013. Pursuant
to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin is to be substituted for Michael
J. Astrue as the defendant in this suit. See, 42 U.S.C. § 405(g).

Lott filed a Title II application for disability insurance benefits (DIB) and a Title XVI
application for Supplemental Security Income benefits (SSI) on May 30, 2008, (Tr. 17, 251-54,
255-57), claiming an onset of disability as of December 15, 2007. (Tr. 17, 251,255). After
Lott’s claims were initially denied on November 18, 2008 (Tr. 110-11), he requested a hearing
before an Administrative Law Judge (“ALJ”), which was conducted on February 24, 2010 (Tr.
85-109). An unfavorable decision was issued on March 12, 2010 (Tr. 115-24), in which the ALJ
found that Lott was disabled but, because “his substance use disorder is a contributing factor
material to the determination of disability[,]. . .[he] has not been disabled within the meaning of
the Social Security Act2 at any time from the alleged onset date through the date of this decision”
(Tr. 124). The Appeals Council remanded the matter back to the ALJ on August 26, 2011 (Tr.
130-33), and a new hearing was held on October 3, 2011 (Tr. 58-84).3 The ALJ issued a new
decision on November 14, 2011, in which she again found that Lott was disabled, but because
his drug and alcohol abuse was a contributing factor, he was not disabled within the meaning of
the Social Security Act (Tr. 17-30).4 The Appeals Council denied Lott’s timely request for
review of the ALJ’s 2011 decision on November 21, 2012 (Tr. 1-4), thereby making the ALJ’s

2

This decision was predicated on the Social Security Act’s prohibition of disability benefits if alcoholism
or drug addiction is a contributing factor material to the determination of disability. 42 U.S.C. §§
416(d)(2)(C), 423(d)(2)(C).
3

The Appeals Council found that the ALJ’s decision failed to properly account for Lott’s moderate
social limitations in the Residual Functional Capacity (“RFC”) evaluation (Tr. 17, 131-132). The
Appeals Council directed the ALJ to re-evaluate Lott’s maximum RFC, obtain supplemental evidence
from a vocational expert, and offer Lott the opportunity for another hearing. (Id.).
4

The ALJ’s November 14, 2011 decision (“ALJ’s decision”) is the final decision of the Commissioner on
Lott’s claims. There are two identical copies of that decision in the administrative record (Tr. 17-30; 3952). For simplicity’s sake, citations in this decision will only be to the copy found at page 17 through 30
of the Transcript.

2

2011 decision the final decision of the Commissioner. See 20 C.F.R. § 404.981 (2009).5 Lott
has exhausted all his administrative remedies and now appeals from that final decision.
II. Issues on Appeal.
A.

Whether the ALJ erred by not assigning any weight to a Veterans’ Administration
(“VA”) decision issued on December 28, 2009, finding that Lott was “unable to
follow a substantial gainful occupation due to disability” effective May 26, 2009
(Tr. 309-16), and failing to explain why she gave the VA decision no weight?6

B.

Whether the ALJ’s residual functional capacity (“RFC”) determination was
supported by substantial evidence?

III. Standard of Review.
A.

Scope of Judicial Review.

In reviewing claims brought under the Social Security Act, this Court's role is a limited
one. Specifically, the Court's review is limited to determining: 1) whether the decision is
supported by substantial evidence, and 2) whether the correct legal standards were applied. See,
42 U.S.C. § 405(g); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990). Thus, a court may not decide the facts anew, reweigh the
evidence, or substitute its judgment for that of the Commissioner. Miles v. Chater, 84 F.3d 1397,
1400 (11th Cir. 1996); Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). Rather, the
Commissioner's findings of fact must be affirmed if they are based upon substantial evidence.
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); Chater, 84 F.3d at 1400; Brown v.
Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991). See also, Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990)(“Even if the evidence preponderates against the Secretary's factual
5

All references to the Code of Federal Regulations (C.F.R.) are to the 2012 edition of part 404, which
addresses claims under Title II of the Act. All cited regulations have parallel citations in part 416, which
address claims under Title XVI of the Act.
6

Lott refers to the VA decision as being issued on December 28, 2009. (Doc. 11 at 2). The VA’s actual
“Rating Decision” is dated December 1, 2009 (Tr. 314-316), and was merely transmitted to Lott under a
cover letter issued on December 28, 2009 (Tr. 309-313).

3

findings, we must affirm if the decision reached is supported by substantial evidence.”);
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (finding that substantial evidence
is defined as “more than a scintilla but less than a preponderance,” and consists of “such relevant
evidence as a reasonable person would accept as adequate to support a conclusion[ ]”). In
determining whether substantial evidence exists, a court must view the record as a whole, taking
into account evidence favorable as well as unfavorable to the Commissioner's decision. Lynch v.
Astrue, 358 Fed.Appx. 83, 86 (11th Cir. 2009); Martino v. Barnhart, 2002 WL 32881075, * 1
(11th Cir. 2002); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Even where there is
substantial evidence to the contrary of the ALJ's findings, the ALJ decision will not be
overturned where “there is substantially supportive evidence” of the ALJ's decision. Barron v.
Sullivan, 924 F.2d 227, 230 (11th Cir. 1991).
B.

Statutory and Regulatory Framework.

The Social Security Act's general disability insurance benefits program (“DIB”) provides
income to individuals who are forced into involuntary, premature retirement, provided they are
both insured and disabled, regardless of indigence. See 42 U.S.C. § 423(a). The Social Security
Act’s Supplemental Security Income (“SSI”) is a separate and distinct program. SSI is a general
public assistance measure providing an additional resource to the aged, blind, and disabled to
assure that their income does not fall below the poverty line. Eligibility for SSI is based upon
proof of indigence and disability. See 42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). However,
despite the fact they are separate programs, the law and regulations governing a claim for DIB
and a claim for SSI are identical; therefore, claims for DIB and SSI are treated identically for the
purpose of determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455,
1456 n. 1 (11th Cir. 1986). Applicants under DIB and SSI must provide “disability” within the

4

meaning of the Social Security Act, which defines disability in virtually identical language for
both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§ 404.1505(a),
416.905(a). A person is entitled to disability benefits when the person is unable “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 12 months.” 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). A “physical or mental impairment” is one that “results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation process
to determine whether a claimant is entitled to benefits. See 20 C.F.R. §§ 404.1520, 416.920
(2010). The Eleventh Circuit has described the evaluation to include the following sequence of
determinations:
(1) Is the person presently unemployed?
(2) Is the person's impairment(s) severe?
(3) Does the person's impairment(s) meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?7
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the 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.”

7

This subpart is also referred to as “the Listing of Impairments” or “the Listings.”

5

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). See also Bell v. Astrue, 2012 WL
2031976, *2 (N.D. Ala. May 31, 2012); Huntley v. Astrue, 2012 WL 135591, *1 (M.D. Ala. Jan.
17, 2012).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F.3d
1232, 1237–39 (11th Cir. 2004). Claimants establish a prima facie case of qualifying disability
once they meet the burden of proof from Step 1 through Step 4. At Step 5, the burden shifts to
the Commissioner, who must then show there are a significant number of jobs in the national
economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant's Residual
Functional Capacity (RFC). Id. at 1238–39. RFC is what the claimant is still able to do despite
his impairments and is based on all relevant medical and other evidence. Id. It also can contain
both exertional and nonexertional limitations. Id. at 1242–43. At the fifth step, the ALJ considers
the claimant's RFC, age, education, and work experience to determine if there are jobs available
in the national economy the claimant can perform. Id. at 1239. To do this, the ALJ can either use
the Medical Vocational Guidelines, 20 C.F.R. Pt. 404 Subpt. P, app. 2 (“grids”), or hear
testimony from a vocational expert (VE). Id. at 1239–40.
C.

Drug and Alcohol Addiction.

In addition to the foregoing five-step evaluation process, the Contract with America
Advancement Act of 1996 (“CAAA”), codified at 42 U.S.C. § 423(d)(2)(C), “amended the
Social Security Act to preclude the award of benefits when alcoholism or drug addiction is
determined to be a contributing factor material to the determination that a claimant is disabled.”
Doughty v. Apfel, 245 F.3d 1274, 1275 (11th Cir. 2001). Consequently, in those cases in which
the Commissioner “determines a claimant to be disabled and finds medical evidence of drug

6

addiction or alcoholism, the Commissioner then ‘must determine whether ... drug addiction or
alcoholism is a contributing factor material to the determination of disability.’ “ Id. at 1279,
quoting 20 C.F.R. § 404.1535. The Eleventh Circuit emphasized that the “key factor in
determining whether drug addiction or alcoholism is a contributing factor material to the
determination of a disability ... is whether the claimant would still be found disabled if he
stopped using drugs or alcohol.” Id., citing 20 C.F.R. § 404.1535(b)(1)(emphasis added). The
Eleventh Circuit also agreed in Doughty with the Fifth Circuit's decision in Brown v. Apfel, 192
F.3d 492 (5th Cir. 1999), and held that “the claimant bears the burden of proving that his
alcoholism or drug addiction is not a contributing factor material to his disability determination.”
Id. at 1280 (other citation omitted); see also id. at 1276 (“We hold, as a matter of first impression
in this Circuit, that the claimant bears that burden.”).
The District Courts throughout Alabama have applied Doughty in this manner, including
Taylor v. Colvin, 2013 WL 6410401, *13 (S.D. Ala., December 09, 2013)(“[C]ontrary to
plaintiff's contention, substantial evidence supports the ALJ's conclusion that substance abuse is
a contributing factor material to plaintiff's disability and plaintiff, as a consequence, has not
carried his burden of proving that his alcoholism or drug addiction is not a contributing factor
material to his disability determination.”). See also Rogers v. Colvin, 2013 WL 4851611, *2
(M.D. Ala., September 10, 2013)(“[W]here the record includes medical evidence of a claimant's
alcoholism or drug addiction, the claimant must prove that he is “disabled independent of [his]
drug addiction or alcoholism” to prevail on his claims; here he did not do so.), quoting 20 C.F.R.
§§ 404.1535(b)(2)(ii), 416.935(b)(2)(ii); Whitman v. Colvin, 2013 WL 4045471, *4 (N.D. Ala.,
August 07, 2013)(“Not only was there substantial evidence to support the ALJ's determination
that Plaintiff's drug and alcohol use contributed to his disability, but there was also substantial

7

evidence supporting his finding that the plaintiff would not be disabled apart from his drug and
alcohol use [and] [t]he plaintiff, not the Commissioner, bears the burden of proving that he
would still be disabled if he stopped using drugs and/or alcohol.”); see also Simons v. Colvin,
2013 WL 4699500, *7 (M.D. Fla., August 30, 2013)(same); Hill v. Astrue, 2011 WL 4530949,
*19 (N.D. Fla., August 24, 2011)(same): Sellers v. Astrue, 2012 WL 2357735, *4 (S.D. Ga.,
June 20, 2012)(same).
IV.

Relevant Facts.

A.

Lott’s vocational background.

Lott was born on December 11, 1952. (Tr. 62). He was 58 years old on October 3, 2011,
the time of his second hearing before the ALJ. (Tr. 62). He graduated from high school as well as
college, from which he obtained a Bachelor of Science degree. (Tr. 63). He was in the military
from 1972 until August 20, 1974, at which time he was a Specialist Fourth Class. (Tr. 63). From
1980 to December 2007, Lott was the owner/Operator of Lott’s Nursery (Tr. 306) and grew
azaleas, which he sold to Walmart and Home Depot (Tr. 64).8 He ultimately filed a Chapter 11
Bankruptcy petition and is now out of business. (Tr. 64). He stopped working on December 15,
2007, because “I went bankrupt and had to stop working” (Tr. 274).
B.

Medical Evidence.

Lott has a long history of cocaine and alcohol abuse and does not dispute or challenge the
evidence of record which supports this abuse:
[Lott] started drinking alcohol when he was 14 (Tr. 546), and the medical records
indicate his drinking was an ongoing problem (Tr. 424, 440, 443, 449, 463, 49495, 499, 521, 528, 536, 545-50, 558, 561-63; see also Tr. 65 (testifying at second
hearing that he drank about a six pack per week), 92 (testifying at first hearing
that he drinks “too much at times”)). He began abusing cocaine at age 37 (Tr.
546), and his medical records repeatedly mention ongoing use (Tr. 414, 420-21,
8

Lott testified that, prior to his bankruptcy, he “had 500 Walmarts and 300 Home Depot stores that [he]
put flowers in” (Tr. 104).

8

424-26, 428-29, 437, 440,443, 449, 463, 494-95, 499, 510, 521, 528, 536, 545-50,
558, 561-63, 565-66, 704, 739, 754,769, 779, 783, 790; see also 93 (testifying at
first hearing that he is still using cocaine and returning to rehab); but see Tr. 66
(testifying at second hearing that he had not used cocaine for about a year).
Although he participated in various inpatient and outpatient treatment programs
and had brief periods of sobriety (Tr. 447-48, 463, 495, 500, 542-43, 572-699),
upon completion, [Lott] returned to drug and alcohol abuse (Tr. 453, 495, 739,
779, 790).
(See, Doc. 12 at 3).9
Lott was involved in an all-terrain vehicle accident on July 13, 2003, that resulted in a
closed head injury (Tr. 333-54). He was discharged from Mobile Infirmary Hospital to Rotary
Health (also referred to at Tr. 362 as “Rotary Rehabilitation Hospital”) on July 22, 2003, with the
following discharge summary, in pertinent part:
Patient’s condition continued to progress in the ICU. Patient was weaned off the
vent and then transferred to the floor in a stable condition. While on the floor
patient has undergone physical therapy and a dietary consultation. Patient is
tolerating physical therapy with moderate assistance x 2 and verbal queuing for
safety. Due to patient’s closed head injury, patient has abnormal gait. . . . Patient
is currently hemodynamically stable . . . and preparing to be transferred to Rotary
Health.
(Tr. 333). The record contains the following information concerning Lott’s rehabilitation:
[Lott] had quite a complicated rehabilitation course secondary to his agitation.
General medications were tried with eventual choice of Geodon 60 mg [every] 8
hours; Depakote 1,000 mg [by mouth twice a day]; trazodone 450 mg [by mouth
every night at bedtime] and Provigil 200 mg [by mouth every morning]. The
patient did well on this medication, however, still required frequent calls to
security for agitation and occasional combativeness. The patient required
occasional [intramuscular injections] of Ativan and Haldol and occasional [] extra
doses [by mouth] of Geodon 60 mg. After a pass on 08/30/03[,] the patient had a
very sharp increase in his functional status with GOAT scores greater than 80
times three days demonstrating a clearance of his post traumatic amnesia. The
Geodon was rapidly discontinued with improvement in gait disability,
maintenance of orientation, and maintenance of mood stability without additional
[as needed] medication. The patient demonstrated understanding of his condition
9

Despite his long, admitted history of drug and alcohol abuse, on a 2008 “Drug and Alcohol Use
Questionnaire” that he completed in conjunction with his claims for DIB and SSI, Plaintiff claimed to
have never had a problem with drugs or alcohol (Tr. 291).

9

and acceptance of his treatment plan. This represents an excellent outcome
considering the severity of his post-traumatic amnesia.
(Tr. 362-63, 365). Lott was discharged from Rotary Rehabilitation on September 4, 2003, with
instructions to receive home health speech therapy three times a week for six weeks, to return to
Dr. James M. Crumb in two weeks for continued medication taper, and to return to Dr. Melissa
Ogden in three months for neuropsychological evaluation (Tr. 365).
Medical records covering a period from December 18, 2003 to July 12, 2005, relate to
Lott’s visit to Dr. Mosteller of Premier Medical for treatment of his eyes, including calcium
deposits in his blind left eye (Tr. 373-78). Dr. Mosteller does not indicate in his notes that there
is any relationship between Lott’s accident in July of 2003 and the treatment provided during this
period of December 2003 to July 2005.
On January 8, 2007, after being “discharged from Searcy [Hospital],” Lott presented to
AltaPointe Health Systems for substance abuse treatment10 (Tr. 438). The assessments
completed by William Billett, M.D. and various therapists while Lott was attending AltaPointe
programs from January 8, 2007 to June 7, 2007, consistently indicate that his memory was
unimpaired, his thoughts were logical, coherent and within normal limits, and no impairments in
concentration were noted (Tr. 440, 454; see also Tr. 413, 418, 419, 423, 431, 435, 436).
On August 29, 2008, Lott was evaluated by Daniel L. Koch, Ph.D., of Mobile
Psychological Associates (Tr. 449-452). Lott does not challenge the ALJ’s finding that this
evaluation, which included psychological testing, was not conducted during a period of sobriety
10

Searcy Hospital is a historic site in Mount Vernon, Alabama, which was established in the year 1900
by the Alabama Legislature as a mental health facility. www.cityprofile.com/alabama/searcyhospital.html. AltaPointe Health Systems, Inc., formerly Mobile Mental Health, provides promotes the
wellness and recovery of people living with mental illness, substance abuse and intellectual disabilities.
www.altapointe.org. During a subsequent evaluation on November 3, 2008, Lott reported that he had
been hospitalized in 2005 after a suicide attempt (Tr. 463).

10

(Tr. 23). Dr. Koch diagnosed Lott with Attention Deficit/Hyperactivity Disorder, Depressive
Disorder, Polysubstance Dependence, Antisocial Personality Disorder with Schizoid Personality
Traits, and blindness in the left eye (Tr. 452). Dr. Koch noted that Lott had an average IQ, a
sixth grade level spelling ability, and a high school level reading and arithmetic abilities (Tr.
451). He also opined that Lott’s attention deficit disorder could benefit from medication to treat
the symptoms (Tr. 451).
Lott underwent further consultative examination by John W. Davis, Ph.D., on November
3, 2008 (Tr. 462-466). This examination also did not occur during a period of sobriety for Lott
(Tr. 24). Although Lott reported “memory problems and difficulty functioning” (Tr. 463), Dr.
Davis found, with respect to concentration and attention:
[Lott] was able to handle Serial 7’s without difficulty. He can make simple
change and do simple arithmetic. He can count backwards from 20 to 1 without
difficulty. He can spell the word “world” backwards. There are no indications of
deficits in his overall concentration or attention.
(Tr. 464). Dr. Davis also found the following with respect to Lott’s immediate, recent and
remote memory and fund of information:
Immediate: He can handle six digits forward and five digits backwards. He can
recall zero of three objects in one minute and zero of three objects in five minutes.
Recent: He can describe his activities of yesterday without difficulty. He is able
to describe the details of the trip to this office without difficulty. He reports
memory problems.
Remote: He remembers the date of Christmas, the age that he was when he left
school, and information about previous employment.
Fund of Information:
He is able to relate current events as “the election.” He knows the names of the
President, Governor, and Mayor. He knows there are 52 weeks in a year.

11

(Tr. 464). Dr. Davis also found that Lott was capable of abstract thinking (Tr. 465). Dr. Davis
diagnosed Lott with Personality Disorder NOS11 and Polysubstance Abuse (Tr. 466). His
prognosis for Lott was “guarded” because he opined that it was “reasonable to expect a favorable
response to treatment within the next six to twelve months with a clean and sober patient” (Tr.
466, emphasis added). Dr. Davis further opined that Lott “cannot manage any benefits that may
be forthcoming due to polysubstance abuse” (Tr. 466, emphasis added). However, Dr. Davis
found that Lott nonetheless “has the ability to do simple, routine, repetitive type tasks [and] can
get along with others” (Tr. 466).
Between March 10, 2009 and May 6, 2009, Lott received treatment at the Biloxi VA
Medical Center (Tr. 488-512). Lott tested positive for cocaine use when he first presented on
March 10, 2009 (Tr. 510). On March 31, 2009, Lott’s Addiction Therapist, Willie King,
completed an Addiction Severity Index (ASI) (Tr. 498-502). King reported that, in the 30 days
prior to the interview, Lott claimed to have experienced unspecified medical problems on 20
days, “which bothered him only slightly” and he considered treatment for medical problems to
be “slightly important” (Tr. 499). King also reported that Lott had not been employed in the last
three years but he “considers treatment for employment problems to be not at all important” (Tr.
499). With respect to Lott’s alcohol and drug use, it was reported as follows:
Mr. Lott says he has been treated 2 times for alcohol abuse and has been treated 3
times for drug abuse. He reports that he spent $50 on alcohol and $20 on drugs
during the past month. Further, he denies being treated in an outpatient setting for
alcohol or drugs in the past 30 days. During the month prior to this
interview,[Lott] reports he – He says he was bothered slightly by alcohol
problems and was slightly bothered by drug problems during the time period. He
11

“Personality Disorder” refers to a general category of mental health disorder, while “NOS” means “Not
otherwise specified”. http://askthepsych.com/atp/2008/03/10/personality-disorder-diagnosis/. “Using
NOS is the clinician’s way of saying there is a diagnosis in this general category but I don’t have enough
information to make a specific diagnosis yet.” Id., by Joseph M Carver, PhD.

12

considers treatment for alcohol problems to be slightly important and treatment
for drug problems to be considerably important.
(Tr. 500). Lott also reported that, in the last 30 days and during his lifetime, he had experienced
serious depression, anxiety or tension; trouble understanding, concentrating or remembering; and
trouble controlling his violent behavior. He reported that he was bothered slightly by these
psychological or emotional problems in the month prior to the interview and considered
treatment for these problems to be slightly important (Tr. 501). A Master Treatment Plan was
developed with Lott’s participation, which was expected to last a year (Tr. 493-498).
Lott presented on May 21, 2009, for an individual counseling session with King, his
Addiction Therapist, who reported that Lott’s mood was upbeat and he demonstrated “a fair
insight into the present situation,” including his “sentencing for possession of paraphernalia and
cocaine” (Tr. 565). Lott reported to King that “the Federal charge of possession of cocaine was
dropped and reduced to a misdemeanor [for which he] was sentenced to 1 year in jail, however,
suspended and given 2 years probation” (Tr. 565). King reported that, “[s]ince [Lott] is fearfully
[sic] of losing his freedom, we hope he attends the sessions for support of his addictions” (Tr.
566).
On June 24, 2009, Lott presented for his scheduled appointment with Nathanial Abston,
Jr., Ph.D., a Clinical Psychologist, and reported that his current medication regime was helpful in
controlling his symptoms. He also reported that he had slipped the day before and “smoked a
little cocaine after being clean for several month” (Tr. 563). He described his mood as “worried”
(Tr. 563). He was then escorted to his Addiction Therapist for an unscheduled appointment (Tr.
561). He told King that, when he called in to his parole officer, he was advised that his
“number” came up for a drug screen (Tr. 561). He was very concerned because he was on
probation and faced incarceration if he tested positive for cocaine (Tr. 561-62). King advised

13

him to be honest and tell his parole officer the truth about his “slip” (Tr. 562). Lott telephoned
King on July 8, 2009, to tell him that his court appearance went well and that the court was
lenient and “chose to send him to Narcotics Anonymous x3 a week” (Tr. 560).
On July 28, 2009, Loot presented to Magdy Ragheb, M.D. for an Initial Psychiatric
Evaluation (Tr. 555-560). Dr. Ragheb reported that Lott “has found himself being tired more
often but denies having trouble with attention, concentration or any changes with sleep and
appetite pattern” (Tr. 556).
On July 28, 2009, Lott also presented to Geoffrey W. Daugherty, M.D., his primary care
physician, with “[n]o complaints except some mild nocturia” (Tr. 549).12 Lott’s physical
examination revealed that he was “[a]lert, oriented, conversant, and no problems with speech,
word finding, etc. [and] [m]emory seems essentially normal” (Tr. 550). Dr. Daugherty reported
that Lott’s “[c]urrent problems seem to be more related to substance abuse” (Tr. 550).
On August 5, 2009, Lott underwent an Addiction Psychiatry Risk Assessment Screening
by King, his Addiction Therapist (Tr. 545-549). It was noted in this assessment that Lott’s
memory “appeared intact” and his computation skills were good (Tr. 548). His perception was
also reported to be in the normal range (Tr. 548). Lott expressed a desire to enter a special
treatment program in Biloxi13 and was counseled on the criteria for entry into that program (Tr.
548). He agreed to participate in “the MOPC Relapse Prevention program” until he was
accepted into the special Biloxi program.

12

Nocturia is a condition in which you wake up during the night because you have to urinate.
www.my.clevelandclinic.org/disorders/nocturia/hic_nocturia.aspx
13

This program is the Substance Abuse Psychosocial Residential Rehab Treatment Program (“SAPRRRTP Program”) and is located in the Biloxi VA Medical Center (Tr. 542). There are only 20 beds in
this program (Tr. 543). Admission criteria include, in addition to an available bed, a Medical Clearance
Exam and a drug screen report indicating that he is drug and alcohol abstinent” (Tr. 542).

14

On August 14, 2009, Lott presented to King for an individual counseling session (Tr.
544-545). He had tested positive for cocaine and his parole officer instructed him that he had 24
hours to get into a program or go to jail (Tr. 544).
On August 18, 2009, Lott presented to another Addiction Therapist, Scott Statham,14 to
obtain information concerning the Biloxi SA-PRRTP Program (542-543) and documentation that
he was being referred to that program, which he could present to his parole officer on August 19,
2009 (Tr. 541). Statham reported that he thought Lott might obtain admission by “about October
1, 2009” (Tr. 543). Stratham also reported that Lott’s mood was “up, happy and looking forward
to success in the treatment he is getting here in the VA” (Tr. 541).
On September 1, 2009, Dr. Daugherty examined Lott (Tr. 535-538). Lott reported that he
could not run his own business anymore because he “can’t make good decisions” (Tr. 537). Dr.
Daugherty noted that Lott “might be able to do manual labor under direct supervision” (Tr. 537).
Lott’s blood pressure was borderline elevated, which he attributed to “drinking a beer last night”
and failing to take his “antihypertension” medicine that day (Tr. 535-36). Dr. Daugherty noted
that drinking beer was “not a good thing” (Tr. 536). He also questioned Lott’s contention that he
“still had some [blood pressure medicine] at home,” when he “should have run out two months
ago” (Tr.536).
On September 4, 2009, Lott and his Addiction Therapist, King, devised a new Master
Treatment Plan (Tr. 527-532). On September 29, 2009, Lott appeared without an appointment to
see King, who was out of the office that week, but was seen by Stratham and advised of the
status of his referral to the Biloxi SA-PRRTP Program (Tr. 526). On October 6, 2009, Lott was

14

Lott’s regular therapist was out sick on August 18, 2009 (Tr. 540).

15

accepted by the Biloxi SA-PRRTP Program for admission on November 16, 2009 (Tr. 522), a
date subsequently changed to December 7, 2009 (Tr. 524).
On October 26, 2009, Lott presented to King for an individual counseling session (Tr.
521-22). Lott discussed his pending Social Security Disability claim, the times he had
previously attended residential treatment programs for his drug and alcohol abuse, and the two
times he had tested positive for drugs during the present treatment program (Tr. 521). King
reported that Lott’s mood was upbeat and he demonstrated a fair insight into his present situation
(Tr. 521).
On December 4, 2009, King completed a Mental Residual Functional Capacity
Questionnaire for Lott (Tr. 567-68). King opined that Lott was mildly limited in his ability to
understand, carry out and remember instructions, and to respond appropriately to supervision and
customary work pressures (Tr. 567-68). He further opined that Lott had only mild limitations in
his ability perform repetitive tasks and complete work related activities in a normal workday or
workweek (Tr. 568). King indicated that Lott was moderately limited15 in his ability to maintain
social functioning, respond appropriately to co-workers, and perform simple tasks” (Tr. 568).
King estimated frequent deficiencies in Lott’s concentration, persistence or pace (Tr. 567), but
also noted that Lott’s alcohol/substance abuse was “material” to the functional restrictions listed
on that form (Tr. 568, emphasis added). Lott indicated his agreement with the limitations set
forth on this form and the materiality of his drug and alcohol abuse to those limitations by
signing the document along with King (Tr. 568).
Lott was admitted to the Biloxi SA-PRRTP Program on December 7, 2009, and was first
assessed by a Staff Nurse, James W. Chandler, Jr., R.N. (Tr. 689-696). Nurse Chandler noted
15

The form used by King to evaluate Lott’s Mental Residual Functional Capacity defines “moderate” as
“[a]n impairment which affects but does not preclude ability to function independently, appropriately,
effectively and on a sustained basis” (Tr. 567).

16

that Lott was able to perform his activities of daily living without assistance and was capable of
planning for his own care (Tr. 695). He also reported that Lott knew when to take each of his
seven medications and knew the reasons each medication is prescribed (Tr. 696).
The Staff Psychologist, Stephen M. McNally, evaluated Lott on December 8, 2009 (Tr.
685-688). Lott reported to McNally that he was “last employed one and a half years ago
attempting to restart his nursery” (Tr. 685). Dr. McNally reported that Lott’s “[r]ecent memory
was severely impaired in that he was only able to remember one word after five minutes” but
that his “remote memory was mildly impaired” and he was “able to think in abstract terms and
judgment was good on two hypothetical questions” (Tr. 686). Dr. McNally also reported:
General fund of knowledge was consistent with his high school degree/BS degree
in Agriculture and Business Economics and it is believed that he is currently
functioning in the average to low average range of intelligence. He was in a coma
for two months after a closed head injury in 2003 with residual memory deficit
and his last drink was on 12/1/09.
(Tr. 686). Dr. McNally recommended, inter alia, that:
Mr. Lott needs to: refresh his memory related to the recovery progress, learn new
coping skills, use cognitive behavioral techniques to decrease his current level of
depression, take notes in lectures to help him remember the material that was
presented, ask questions when he does not understand what to do, increase his
current level of self esteem, attend AA/NA meetings and obtain a sponsor and
develop a viable after core plan.
(Tr. 687).
On December 9, 2009, Ralph M. Bridges, a Recreational Therapist, assessed Lott and
developed a Recreational Therapy Master Treatment Plan (Tr. 669-672). In conjunction with
this assessment, Lott reported that, in the past twelve months, he used his free time “walking,
using drugs, drinking, socializing with associates, tv, movies, and sitting outside” (Tr. 670). Lott
informed Mr. Bridges that, upon discharge, his plans for his free time included “fishing, pool,
bowling, going to Snyder’s gym, walking, engaging in cards, community reintegration program, .

17

. .tv, movies, putt golf, socializing with peers, maintaining a positive attitude toward structuring
his leisure time to remain drug free, and attending NA/AA meetings” (Tr. 670).
During an assessment (Tr. 662-668) on December 10, 2009, by Kimila R. Deflanders, a
Social Worker, Lott reported that his longest period of sobriety was four to five years as a result
of an ultimatum given when he got married (Tr. 664). He stated that during this time he “stayed
busy” but he resumed drinking when his 19-year-old son died (Tr. 664). Lott also told
Deflanders that his admission was ordered by the court and, if he did not complete treatment, he
would go to jail (Tr. 664). He also reported that he had not earned money in two years but had
been working on his farm and his leisure activities included the computer, maintenance around
the farm and drug use (tr. 667). Lott told Deflanders that, four years ago, he was admitted to a
psychiatric hospital after his mother reported that he put a gun to his head but that he “does not
feel he was suicidal but feels he was trying to get whatever he needed at that time from his
mother” (Tr. 666). In a subsequent progress note, Deflanders reported that Lott listed his goals
as “want mind to believe in self again” and identified his strengths as “accomplish things that I
set my mind to do and good businessman” (Tr. 659). Lott also identified his obstacles as “his
son’s death and drug abuse” (Tr. 659).
Lott’s Recreational Therapist, Ralph Bridges, reported that he participated in a group
therapy session on December 10, 2009, at which he was taught, “developed a working
knowledge” and participated in a board game known as Rummikub16 (Tr. 658). Bridges also
noted that Lott was “interactive with peers and staff” and dis[played a positive attitude (Tr. 658).
On December 14, 2009, Dennis K. Halsey, Addiction Therapist, developed a Master
Treatment Plan with Lott to govern his care (Tr. 641-648). One problem identified in this report
16

“Rummikub is “[a] fast-moving rummy tile game.” http://www.amazon.com : Rummikub: Board
Games: Toys & Games.

18

was that Lott was unemployed “due primarily to his addiction” (Tr.645). One of the short term
goals identified to combat this problem was that Lott “[v]erbalize how volunteerism in
community, church or veterans organizations can have an impact on self-esteem, how it can fill
the day now that drinking and druging [sic] is arrested” (Tr. 645). In a Small Group Counseling
Note entered on December 15, 2009, Therapist Halsey noted that Lott disclosed some lies he told
others to obtain money to drink, or drugs to use” and admitted that “he would tell most anything
to get what he wanted” (Tr. 637).
On December 16, 2009, Jane Elizabeth Varner, Ph.D., a Staff Psychologist, reported that,
during an individual Therapy session, Lott’s “[a]ttention and concentration were fair” and that,
although he had a tendency to get off topic, “he was easily redirected” and his “[j]udgment and
insight seemed fair” (Tr. 632). The records of Lott’s treatment contain numerous references to
his active participation in each treatment session, both individual and group (Tr. 605, 608, 610,
617, 619, 625, 627, 628, and 630).
On December 30, 2009, reported to the Staff Psychologist, McNally, during their
individual session, that he was “thinking about restarting his old nursery on a small scale and
selling plants to help him generate some cash flow and keep him busy during the day” and that
he planned to “salvage a number of plants from the land that his parents bought back after his
business failed due mainly to his cocaine dependence” (Tr. 603-04). Subsequently that day, Lott
participated in an individual therapy session with Dr. Varner, who reported:
[Lott] arrived to the scheduled session on time. He was alert and oriented to
person, place, time, and situation. His mood appeared euthymic,17 and he
reported that he was doing well. However, when he spoke of his son’s death, he
became tearful. Affect was full range and congruent with mood. Eye contact was
good. Speech was within normal rate, rhythm, tone, and volume. Thought
process seemed linear and goal-directed. No hallucinations were reported or
17

Euthymic is a term “pertaining to a normal mood in which the range of emotions is neither depressed
nor highly elevated.” http://medical-dictionary.thefreedictionary.com/euthymic.

19

delusional content evident. Attention and concentration were fair. His memory
seemed impaired, as evidence [sic] by his repeating several of the things he shared
in the previous session [on December 16, 2009]. He also spoke of a handout and
thought this provider had given it to him. However, he must have received the
handout from the chaplain. Judgment and insight seem fair.
(Tr. 601).
On January 2, 2010, Lott participated in Bingo on the ward (Tr. 598). Lott had his last
individual session with the Staff Psychologist, McNally, on January 6, 2010, at which time it was
reported that:
[Lott] accomplished his main goals of becoming more aware of his feelings, he
learned to recognize safe coping that he engaged in on a regular basis and he
learned new safe coping skills. He plans to open his plant nursery on a small
scale in the near future, he was recently granted a NSC pension [and “received
$5K back pay” (Tr. 588)], and he plans to move next door to his parents home
after he fixes up a home some of his former employees used to live in when the
nursery brought in one million dollars a year in net income.
(Tr. 587). On January 7, 2010, Lott had his last individual session with Dr. Varner, who again
reported that his “memory seemed impaired, as evidenced by continuing to repeat several of the
things he shared in the previous sessions” (Tr. 584). Later that same day, Lott joined “a
structured therapeutic recreation therapy group” and “developed working knowledge of the rules
[of “Rummy”]” (Tr. 581-82).
Lott was discharged from the Biloxi SA-PRRTP Program on January 8, 2010 (Tr. 576).
Although Lott’s motivation was questioned,18 the records state that he “completed the SARRTP
program; all required out-processing has been done and [Lott] has received a regular discharge”
(Tr. 576).
18

Lott’s Addiction Therapist, Dennis Halsey, reported the following:
Veteran fails to internalize the severity of his addiction and is getting clean and
sober for the courts, family members and children. Not himself.

(Tr. 575).
20

On February 16, 2010, Lott reported to his primary care physician, Dr. Daugherty, that he
tested positive for cocaine during a random urine test for his parole officer and that he either has
to return to a rehab program or go to jail (Tr. 790). Lott attended a Relapse Prevention Group
Session on February 18, 2010 (Tr. 787-88). On February 26, 2010, Lott reported to his
Addiction Therapist, King, that he was arranging his admission to a 90 day program in
Tuscaloosa, Alabama, but would continue to participate in the Relapse Prevention Group and
individual therapy sessions until such admission (Tr. 786).
Lott attended a Relapse Prevention Group on March 1, 2010, and “became the focus of
the meeting” because he was identified as the “Suffering Addict” (Tr. 784-85). Lott presented to
King for a scheduled individual session on March 2, 2010, and he reported that Lott was candid
about testing positive for cocaine on March 1, 2010, and again being required to enroll in a 90
day program or face incarceration (Tr. 783). Lott attended another Relapse Prevention Group on
March 3, 2010 (Tr. 782) and on March 4, 2010 (Tr. 780-81). Lott presented to King for a
scheduled individual session on March 5, 2010, and he reported that Lott was “not accepted into
the 90 day program in Tuscaloosa, AL” (Tr. 779). King also opined that Lott “is a little naive in
making contact with others who are using” (Tr. 779). King also reported that Lott would be
processed to attend the Biloxi SA-PRRTP Program but that it would be “Biloxi’s decision
whether are [sic] not to accept [Lott] once again for alcohol and drug treatment” (Tr. 779).
On March 22, 2010, Lott presented to Dr. Ragheb for a scheduled appointment (Tr. 769770). Lott denied any current alcohol or substance abuse but admitted that he had tested positive
for cocaine three weeks ago and, since he was still on Probation, he was “considering Tuscaloosa
Program” (Tr. 769). Dr. Ragheb reported that Lott was “agreeable, discussed therapy and
medicine, patient educated and motivated to follow up with same meds and with therapy . . . and

21

knows what to do if need [sic] any help with that” (Tr. 770). Lott presented to Dr. Ragheb on
April 13, 2010, for another scheduled visit and she reported that he was “well informed about
meds, therapy, PRRTP Biloxi [sic] program” (Tr. 757).
On April 14, 2010, Theresa A. Rozum, a Social Worker, reported that Lott was alert,
oriented, communicative, maintained good eye contact, had an animated, pleasant mood, and
demonstrated logical and goal directed thought processes (Tr. 753). On May 13, 2010, Lott
presented to King for an “unscheduled appointment” related to his need to enter a residential
treatment program “within 7 days” by orders of his Probation Officer because of his recent use of
cocaine (Tr. 739). King reported that Lott had been attending the Relapse Prevention Group
sessions 3-4 times a week at the Mental Health Center19 but did not have a sponsor and did not
attend group sessions in his local community where he might acquire a sponsor, which he was
encouraged to do (Tr. 739). King also opined that Lott was “very manipulative in his actions to
avoid incarceration” (Tr. 740).
Lott presented to Dr. Daugherty on April 14, 2010 (Tr. 748-51) and June 8, 2010 (Tr.
729-33). On both occasions, Dr. Daugherty reported that, with respect to Lott’s history of closed
head trauma with cognitive deficits, there were “no changes – rambling, impulsive, asks
repetitive questions but pleasant (Tr. 749, 731). Dr. Daugherty also reported that Lott’s
understanding of his instructions concerning blood pressure monitoring, diet and exercise was
“good” (Tr. 732).

19

Lott attended the following Relapse Prevention Groups: March 8, 2010 (Tr. 778-79), March 9, 2010
(Tr. 776-77), March 11, 2010 (Tr. 774-76), March 15, 2010 (Tr. 773-74), March 18, 2010 (Tr. 772-73),
March 22, 2010 (Tr. 771), March 23, 2010 (Tr. 768), March 25, 2010 (Tr. 766-67), March 29, 2010 (Tr.
765-66), March 30, 2010 (Tr. 764-65), April 1, 2010 (Tr. 763-64), April 5, 2010 (Tr. 762-63), April 7,
2010 (Tr. 761), April 8, 2010 (Tr. 759-60), April 12, 2010 (Tr. 757-58), April 13, 2010 (Tr. 754-56),
April 15, 2010 (Tr. 747-48), April 21, 2010 (Tr. 746-47), April 22, 2010 (Tr. 745), April 26, 2010 (Tr.
744), April 29, 2010 (Tr. 743), May 4, 2010 (Tr. 742), May 10, 2010 (Tr. 740-41), May 17, 2010 (Tr.
737-38), May 20, 2010 (Tr. 736-37), and May 27, 2010 (Tr. 734-35).

22

On September 17, 2010, Lott presented again to Dr. Daugherty, who noted that he was
now a resident of the Salvation Army Rehab Center (Tr. 722). On this occasion, Dr. Daugherty
reported that, with respect to Lott’s history of closed head trauma with cognitive deficits, there
were “no changes – seems somewhat better now” (Tr. 723).
Lott also presented to King on September 17, 2010, and participated in the formation of a
new Substance Use Disorder Program (SUDP) Master Treatment Plan (Tr. 716-721). King
reported that Lott was “being prepped for [a return to] the SA-PRRTP Program in Biloxi” (Tr.
721).
On November 5, 2010, Dr. Ragheb and Severin W. Grenoble, a Psychiatric Resident,
examined Lott (Tr. 711-715). They reported that Lott was alert, oriented, calm, cooperative,
maintained good eye contact, exhibited coherent, logical and linear thought processes, average
intelligence, and fair insight (Tr. 712). They also reported that his cognitive abilities were
grossly within normal limits (Tr. 712). Lott advised these doctors that he was “doing well and
fairly stable with [his] current meds and does not want any dose changes or additions” (Tr. 715).
On December 14, 2010, during a scheduled individual session with King, Lott reported
that he was “concerned about his 6-months at the Salvation Army” [which] he feels . . . is all
centered around a misunderstanding between the Salvation Army (SA) and the Parole Officer”
(Tr. 709-10). Lott “stated that he informed his Parole Office[r] he had completed the program,
and SA called his Parole Officer, and his pass was cancelled because of this misunderstanding”
(Tr. 710). King reported that Lott “is a very manipulative individual, so its [sic] hard to say how
he expressed his desires to leave the SA [to go home for Christmas], however he is assigned to
the kitchen duties . . . [and] not allowed to leave the property” (Tr. 710).

23

On January 18, 2011, Dr. Ragheb and Harshadkumar G. Patel, a Psychiatric Resident,
examined Lott (Tr. 703-706). They reported that Lott was alert, oriented, calm, cooperative but
guarded, exhibited logical and goal directed thought processes, detected no abnormalities in
intelligence, and fair insight (Tr. 704-05). They also reported that his cognitive abilities were
normal (Tr. 705). Lott advised these doctors that he was “doing well with his current meds and
does not want any changes” (Tr. 706).
C.

Lott’s Testimony.

At an administrative hearing held on October 3, 2011, Lott testified he lives in a onestory home with his mother and father (Tr. 62).20 He was in the military from 1972 until he got
out on August 20, 1974, with the rank of Specialist Fourth Class (Tr. 63). Lott confirmed that
from “about 1997 to about 2003” he was in the nursery business; he grew azaleas, which he sold
to Walmart and Home Depot (Tr. 64, 65).21 He ultimately went bankrupt and is now out of
business (Tr. 64).22 He has not looked for any work since he last worked (Tr. 65).23 Lott
testified that he no longer drinks “a whole lot anymore,” meaning “less than a six-pack a week”
(Tr. 66). He reported that it had been over a year since the time when he “drank too much” (Tr.
66). He then retracted that contention and testified that it was only since “Mardi Gras” that he

20

At the administrative hearing on February 24, 2010, Lott testified that this home belongs to his parents
(Tr. 89). Prior to moving in with his parents, he lived next door on their property (Tr. 89).
21

At the administrative hearing on February 24, 2010, Lott testified that he “ran a wholesale nursery for
29 years” (Tr. 90).
22

Lott previously testified that, before his injury in the ATV accident on June 13, 2003, “I had 500
Walmarts and 300 Home Depot stores that I put flowers in [but] after that, I made wrong decisions on
when to fertilize and when to cut back and what to do when it got cold” (Tr. 104). Lott further testified
that “Hurricane Katrina kind of put an end on that, and I didn’t make all my bank notes that year [and]
[g]ot foreclosed on” (Tr. 104)
23

Lott previously testified that he last worked in December 2007 (Tr. 91).

24

stopped drinking “too much” (Tr. 66).24 He further testified that it had been “around a year ago”
that he last used illegal drugs (Tr. 66).
Lott testified that he could not work because “it’s my memory that’s just not there” (Tr.
66-67).25 He confirmed that he could read and write, add and subtract, multiply and divide,
make change for a $20.00 bill (Tr. 63-64). As to his ability to handle financial matters such as
paying bills, Lott testified that he “just sometimes spend[s] more time than [he] thinks [he has]”
(Tr. 64). He testified that he takes four or five medicines he gets through the VA, including
medicine for depression, blood pressure, acid reflux, and allergies, (Tr. 67-68). Lott stated that he
was “totally blind in[his] left eye” but his vision in his right eye is okay as long as he has his
glasses (Tr. 70). Lott testified that his ability to walk is only affected by how hot it is, he can
stand up all the time and he has no problems sitting (Tr. 71). His ability to lift and carry is only
limited by his blindness in the left eye because he “can’t judge distance with just one eye,” which
causes him to bump into things (Tr. 72). He has a driver’s license and is able to drive (Tr. 72).
He can climb stairs, bend over to pick something up he dropped, stoop or squat using his knees,
and grip and use his hands (Tr. 72-73). He can also make himself simple meals, bathe and dress
himself, help his mother do the laundry and other housework (Tr. 73-74). His activities during
the day include playing on the computer, reading, watching TV and getting out of the house
every day (Tr. 75).26
D.

Vocational Expert’s Testimony.

24

Mardi Gras Day fell on Tuesday, March 8, 2011, seven months prior to the October 3, 2011
administrative hearing (Tr. 58-84) and over one year following the February 24, 2010 administrative
hearing 9Tr. 85-109) on Lott’s application for DIB and SSI benefits.
25

At the administrative hearing on February 24, 2010, Lott testified that “when I’m not under pressure, I
can think; but when I’m under pressure, I make wrong decisions” (Tr. 99).
26

Lott previously testified that “I don’t like being in crowds, but I don’t have any problems when I’m in
them. I just don’t like to be in a crowd” (Tr. 103).

25

Eric Anderson, the Vocational Expert (VE), was called to testify by the ALJ regarding
Lott’s past relevant work. (Tr. 77). He concluded that Lott was a “nursery manager” (DOT code
number 180.167-042), which would be classified as light and skilled (SVP level of 8). Mr.
Anderson was then presented with a hypothetical of a man Lott’s age, education and prior work
background who was not limited in the ability to sit, stand, walk, or the ability to lift and carry,
but was limited to work requiring no more than simple, routine, repetitive type tasks, occasional
contact with the general public, casual contact with coworkers and supervisors and who must
avoid work requiring fine visual acuity (Tr.77-78).
Mr. Anderson testified that such an individual could perform the following unskilled
jobs: janitor (DOT 381.687-018) which is medium, unskilled (SVP level of 2) with 2,090,000
jobs available nationally and 26,700 available in Alabama; hand packer (DOT 920.587-018)
which is medium, unskilled (SVP level of 2) with 7,600 jobs available nationally and 8,200
available in Alabama; kitchen helper (DOT 318.687-010) which is medium, unskilled (SVP
level of 2) with 550,000 jobs available nationally and 11,000 available in Alabama (Tr. 78).
A second hypothetical was presented in which “the individual would be unable to sustain
concentration, remain on target or remain on task for two hours at a time due to memory deficits”
(Tr. 78). Mr. Anderson testified that there would exist no jobs for such an individual (Tr. 78).
E.

ALJ’s Decision.

The ALJ followed the Commissioner’s five-step sequential evaluation process in
reaching her decision on November 14, 2011. See 20 C.F.R. § 404.1520(a)(4).27 The ALJ found
that Lott’s cocaine dependence, alcohol dependence, adjustment disorder with depression and
27

The Commissioner’s regulations governing evaluation of DIB claims are found at 20 C.F.R § 404.1501
et seq. Largely identical regulations governing SSI claims can be found at 20 C.F.R. § 416.901 et seq.
The undersigned will cite only to the DIB regulations.

26

anxiety, depressive disorder, personality disorder, left eye blindness, and a cognitive disorder
secondary to a closed head injury were severe impairments (Tr. 20, Finding 3), and that these
impairments, including the substance abuse disorders, meet listings 12.04, 12.06 and 12.09 at 20
C.F.R. Part 404, Subpt. P, Appx, 1 (20 C.F.R. 404-1520(d) and 416.920(d)) (Tr. 21, Finding 4).
The ALJ also found that, even if Lott ceased all substance abuse, his underlying psychological
problems, cognitive disorder secondary to his closed head injury and his left eye blindness would
continue to be severe impairments (Tr. 22, Finding 5).
Lott cannot, however, under the Social Security Act, as amended, be considered disabled
if alcoholism or drug addiction is a contributing factor material to the determination of disability.
See 42 U.S.C.§§ 423(d)(2)(C). In other words, even if the five-step sequential evaluation
process leads to the conclusion that a claimant is disabled, where there is medical evidence of the
claimant’s drug addiction or alcoholism (DAA), the ALJ must additionally determine whether
the DAA is a contributing factor material to the determination of disability. See 20 C.F.R. §
404.1535. Here, the ALJ found that, if Lott stopped using drugs and alcohol, he would retain the
residual functional capacity (RFC) to perform medium work (as that term is defined in 20
C.F.R.§ 404.1567(c)) provided it was limited to simple, routine, repetitive type tasks, occasional
contact with the general public, and casual contact with co-workers and supervisors and did not
require visual acuity (Tr. 25). While Lott could not perform his past work with that RFC, the
Vocational Expert testified that he could perform other work, which exists in significant numbers
in the national economy (Tr. 28-29). Thus, the ALJ concluded that Lott’s DAA was a
contributing factor material to the determination of disability, and that he was not, therefore,
disabled under the Act (Tr. 29-30).

27

V.

Analysis.
A.

The ALJ properly assigned little weight to the VA’s Rating Decision
and adequately explained her position.

Lott argues that the ALJ “committed reversible error in not assigning any weight,
pursuant to Social Security Regulation 20 C.F.R. 4041512(a)(6) [sic] and Social Security Ruling
06-03p, to a VA decision issued on December 28, 2009, finding the Plaintiff unemployable and
eligible for a VA pension effective May 26, 2009, while failing to explain the reasons for doing
so in a manner that would allow a reasoned review.” (Doc. 11 at 2).28 The Commissioner argues,
in sum, that the ALJ was not bound by the VA’s findings and cited good reasons for disregarding
the subject Rating Decision, including the fact that it was “inconsistent with the longitudinal
record,” that the “VA disability standards differ from SSA’s,” and because the VA disability
determination did not mention Lott’s substance abuse problems, which the ALJ was required by
law to consider. (Doc. 12 at 6).
The applicable Social Security Regulations in this case are 20 C.F.R. §§ 404.1504 and
416.904, which provide, in pertinent part:
[a] decision by any nongovernmental agency or any other governmental agency
about whether you are disabled or blind is based on its rules and is not our
decision about whether you are disabled or blind. We must make a disability or
blindness determination based on social security law. Therefore, a determination
made by another agency [e.g., Workers' Compensation, the Department of
Veterans Affairs, or an insurance company] that you are disabled or blind is not
binding on us.
20 C.F.R. §§ 404.1504(a) and 416.904(a) (emphasis added).

Social Security Ruling 06-03p

indeed states, as Lott contends, that “evidence of a disability decision by another governmental
or nongovernmental agency cannot be ignored and must be considered.” (Doc. 11 at 3, citing
28

See, n. 6, supra. In addition, the undersigned notes that the citation “20 C.F.R. 4041512(a)(6)” does
not exist in the Social Security Regulations.

28

SSR 06-03p, 2006 WL 2329939, *6 (August 9, 2006). This Social Security Ruling, however,
also makes it abundantly clear that:
Because the ultimate responsibility for determining whether an individual is
disabled under Social Security law rests with the Commissioner, we are not
bound by disability decisions by other governmental and nongovernmental
agencies. In addition, because other agencies may apply different rules and
standards than we do for determining whether an individual is disabled, this may
limit the relevance of a determination of disability made by another agency.
However, the adjudicator should explain the consideration given to these
decisions in the notice of decision for hearing cases and in the case record for
initial and reconsideration cases.
Id. at *7 (emphasis added). See also, Pearson v. Astrue, 271 Fed. App’x 979, 981 (11th Cir.
2008)(“The record supports the conclusion by the administrative law judge that, although
Pearson received a total disability rating by the Veterans Administration, he did not qualify for
Social Security benefits [because] [t]he record establishes that the administrative law judge
considered the rating in his decision and correctly explained that a claimant had to satisfy a more
stringent standard to be found disabled under the Social Security Act.”). Although Lott appears
to challenge the ALJ’s statement that “the VA disability standards differ from SSA’s,” he argues
only that the ALJ “did not cite to any specific records or instances where they differ.” (Doc. 11
at 3). Lott’s challenge on this point is contrary to SSR 06-03p, on which he himself relies, as
well as the Eleventh Circuit’s opinion in Pearson, as both are quoted above.29
Lott’s contention that the ALJ “did not adequately explain her decision to reject the VA
rating” (doc. 11 at 4) is without merit. The ALJ specifically stated that she “considered the
Veterans Administration determination” but gave it little weight because “it is inconsistent with
the longitudinal record including the claimant’s admitted capabilities, the consultative
examination results, the treatment records from the VA substance abuse treatment center, the
29

The fact that the VA rating decision in this case does not mention Lott’s alcohol and drug abuse
problems, while the ALJ was required under 42 U.S.C. § 423(d)(2)(C) to consider it, demonstrated the
unavoidable difference between the disability standards employed by the VA and the SSA.

29

substantial evidence of substance abuse materiality, and other evidence discussed herein” (Tr.
28). One inconsistency directly referred to by the ALJ was the conclusion of Lott’s long time
treating physician, Dr. Daugherty, on July 28, 2009, that his “current problems seem to be more
related to substance abuse” (Tr. 26, citing Tr. 550).30
Another inconsistency referred to by the ALJ involves Lott’s own admission that, even
when abusing substances, “he is able to take care of his own personal needs such as bathing and
grooming without significant difficulty and that he drives, goes to the grocery store, prepares
simple meals for himself, completes most chores inside and outside his home, and watches
television on a daily basis for leisure” (Tr. 23, citing Tr. 284-288). Yet another inconsistency
addressed by the ALJ relates to the inpatient substance abuse treatment records at the VA that
reflect Lott’s plans upon discharge, which “included fishing, pool, bowling, going to the gym,
walking, playing cards, watching television and movies, and attending support group meetings”
(Tr. 23, citing Tr. 670). The ALJ also referred to the opinion of the State agency psychiatric
consultant, Donald E. Hinton, Ph.D., that Lott, even when abusing drugs and alcohol, has only
“mild limitation” in the area of Activities of Daily Living and only “moderate limitation” in
social functioning and with regard to concentration, persistence and pace (Tr. 23, citing Tr.
479).31

30

The ALJ also addressed a statement issued by Dr. Daugherty on November 21, 2009, to the Alabama
Department of Human Resources “suggesting that [Lott] is disabled”(Tr. 27, citing 487). The ALJ
assigned little weight to this statement because it was “submitted so that [Lott] could obtain food stamps,”
and “it contain[ed] no specific functional limitations,” invaded the province of the ALJ to determine the
ultimate issue of disability, and was “inconsistent with Dr. Daugherty’s own treatment notes” (Tr. 27,
citing Tr. 549-551).
31

The ALJ referred to Lott’s plans to socialize with his peers and spend more time with his family (Tr.
23, citing Tr. 604) as well as the observation of Jane Elizabeth Varner, Ph.D. a few days before Lott’s
discharge from the VA inpatient substance abuse treatment center that Lott “was fully oriented, that his
eye contact was good, that his thought process was linear and goal-directed, that his speech was normal,
and that he was free of delusions and suicidal ideations” (Tr. 23, citing Tr. 584). The ALJ also referred to

30

Another inconsistency directly addressed by the ALJ relates to the psychological
examination and testing of Lott conducted by Daniel Koch, Ph.D. on August 29, 2008, which
revealed an average IQ, high school level reading and math skills, and sixth grade spelling skills,
even though he had some deficits in attention. (Tr. 23-24, citing Tr. 449-452). Similarly, the
ALJ referred to the examination conducted of Lott by John Davis, Ph.D. on November 3, 2008,
resulting in an opinion that Lott could do simple, routine, repetitive type tasks (Tr. 24, citing Tr.
462-66). Neither of these reports is consistent with disabling mental limitations and, as noted by
the ALJ, both of examinations addressed Lott’s functioning during a time when he was still
abusing drugs and alcohol (Tr. 46). In addition, Lott’s substance abuse counselor, Mr. King,
submitted a RFC questionnaire in December 2009, which indicated that Plaintiff had mild to
moderate limitations in a number of functional areas and would have frequent difficulties
maintaining concentration, persistence, and pace, but stated that Lott’s DAA was material to his
opinion (Tr. 27, citing Tr. 567-68).32
For the reasons stated above, the ALJ applied the proper legal standard with respect to the
weight she attributed to the VA Rating Decision in this case and adequately explained her
decision so as to provide for a reasoned review by this Court. The ALJ’s did not, therefore,
commit any reversible error on this point.

Lott’s admission that, even when abusing drugs and alcohol, “he is able to do concentration and memory
intensive tasks such as driving, paying bills, counting change, managing a savings account, and watching
television . . . [and] to pay attention for ‘as long as I am interested’ and is good at following oral and
written instructions” (Tr. 23, citing Tr. 286-288).
32
The ALJ gave “some weight” to Mr. King’s opinion, even though he is not deemed “an acceptable
medical source,” because she found it to be “consistent with the longitudinal record including the
treatment records reflecting significant improvement during periods of sobriety” (Tr. 27). The ALJ also
noted that Lott signed off on this assessment, “thereby agreeing with the limitations set forth therein and
with the fact that substance abuse is material to his limitations” (Tr. 27, citing Tr. 568).

31

B.

The ALJ’s residual functional capacity (“RFC”) determination was
supported by substantial evidence.

Lott also argues that the ALJ’s assessment of his RFC was not supported by substantial
evidence. (Doc. 11 at 5). There are two elements to Lott’s argument:
•

The ALJ “failed to reference any physical impairments or limitations that would
lead to a physical residual functional capacity of medium work.” (Id.)

•

The ALJ “recognized [Lott’s] cognitive disorder secondary to closed head injury
as a severe impairment but then rejected the existence of that condition in her
discussion regarding the residual functional capacity.” (Id. at 7).

Neither of these elements has any merit.
The undersigned finds no error with the ALJ’s determination that Lott has the residual
functional capacity to perform medium work and that substantial evidence in the record supports
her determination. The residual functional capacity assessment is a measure of what a claimant
can do despite functional limitations. 20 C.F.R. § 404.1545; 20 C.F.R. § 416.945.

The

administrative rulings define residual functional capacity as
what an individual can still do despite his or her limitations. RFC is an
administrative assessment of the extent to which an individual's medically
determinable impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations or restrictions that may affect his or her
capacity to do work- related physical and mental activities.
SSR 96-8p, 1996 WL 374184, *2 (July 2, 1996). The ALJ makes an RFC finding based on all
the “relevant medical and other evidence.” Siverio v. Commissioner of Soc. Sec., 461 Fed.
App’x 869, 871 (11th Cir. Feb. 23, 2012) (per curiam), quoting 20 C.F.R. § 404.1545(a)(3)33.
Lott challenges the ALJ’s determination that he is limited to “medium” work. The
physical activities needed to carry out medium work has been described as follows:
33

The regulations further provide that the claimant is, in general, “responsible for providing the evidence
[the ALJ] will use to make a finding about your residual functional capacity. 20 C.F.R. § 404.1545(a)(3);
see also 20 C.F.R. § 404.1512(c).

32

The regulations define medium work as lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25 pounds. A full range
of medium work requires standing or walking, off and on, for a total of
approximately 6 hours in an 8-hour workday in order to meet the requirements of
frequent lifting or carrying objects weighing up to 25 pounds. As in light work,
sitting may occur intermittently during the remaining time. Use of the arms and
hands is necessary to grasp, hold, and turn objects, as opposed to the finer
activities in much sedentary work, which require precision use of the fingers as
well as use of the hands and arms. The considerable lifting required for the full
range of medium work usually requires frequent bending-stooping (Stooping is a
type of bending in which a person bends his or her body downward and forward
by bending the spine at the waist.) Flexibility of the knees as well as the torso is
important for this activity. (Crouching is bending both the legs and spine in order
to bend the body downward and forward.) However, there are a relatively few
occupations in the national economy which require exertion in terms of weights
that must be lifted at times (or involve equivalent exertion in pushing or pulling),
but are performed primarily in a sitting position, e.g., taxi driver, bus driver, and
tank-truck driver (semiskilled jobs). In most medium jobs, being on one's feet for
most of the workday is critical. Being able to do frequent lifting or carrying of
objects weighing up to 25 pounds is often more critical than being able to lift up
to 50 pounds at a time.
SSR 83-10, 1983 WL 31251, *5 (1983). See also, Siverio, 461 Fed. App’x at 871 (Applying
SSR 83-10 in its analysis of an RFC for sedentary work). Lott points to no evidence in the
record which establishes that he is incapable of performing these physical attributes of medium
work.

He merely argues that the ALJ “failed to reference any physical impairments or

limitations that would lead to a physical [RFC] of medium work.” (Doc. 11 at 5). His position
is perplexing.
If Lott is attempting to contend that he should have been assessed as capable of doing
work at a higher level than “medium,” his argument fails because the regulations only classify
“the functional requirements of work in term of the range of the primary strength activities
required” and only in terms of “[t]he primary strength activities specifically associated with
sedentary, light, and medium levels of exertion [] set forth in sections 404.1567 and 416.967 of
the regulations.” SSR 83-10, 1983 WL 31251 at *5.

33

If Lott is, instead, contending that the

evidence of record does not support the ALJ’s finding that he is capable of performing the
physical demands of medium work, his argument fails because he has never contended that he
was physically incapable of performing medium work34 and there is more than ample evidence in
the record to support his physical abilities to perform medium work.
Lott testified at both administrative hearings that his ability to walk is only affected by
how hot it is, he can stand up all the time and he has no problems sitting (Tr. 71, 99-100). His
ability to lift and carry is only limited by his blindness in the left eye because he “can’t judge
distance with just one eye,” which causes him to bump into things (Tr. 72, 96). He has a driver’s
license and is able to drive (Tr. 72). He can climb stairs, bend over to pick something up he
dropped, stoop or squat using his knees, and grip and use his hands (Tr. 72-73, 101). He can also
make himself simple meals, bathe and dress himself, help his mother do the laundry and other
housework (Tr. 73-74, 101). His activities during the day include playing on the computer,
reading, watching TV and getting out of the house every day (Tr. 75). He further testified that he
is “totally blind in[his] left eye” but his vision in his right eye is okay as long as he has his
glasses (Tr. 70, 96). The ALJ also noted that “[n]ear the end of his [inpatient] stay he expressed
that he was feeling better and that his plans for when he left the hospital included fishing, pool,
bowling, going to the gym, walking, playing cards, watching television and movies, attending
support group meetings, community reintegration, socializing with peers, [] attending substance
abuse meetings, spending time with family, and starting his business back on a small scale” (Tr.
26, citing Tr. 603-604 and 670). All these physical activities are consistent with the ALJ’s
conclusion that Lott is capable of performing the physical requirements of medium work. Lott’s
34

Lott confirmed that the impairments found to be severe by the ALJ, including “cocaine dependence,
alcohol dependence, adjustment disorder with depression and anxiety, depressive disorder, personality
disorder, left eye blindness, and cognitive disorder secondary to closed head injury “affected only
cognition and sight.” (Doc. 11 at 5).

34

contentions to the contrary are without merit.
In addition to finding that Lott could perform medium work, the ALJ’s RFC assessment
limited Lott “to simple, routine, repetitive type tasks; occasional contact with the general public;
and casual contact with co-workers and supervisors” (Tr. 25, Finding 7).35 These restrictions are
consistent with the regulatory definition of “unskilled” work. Unskilled work is defined as
“work which needs little or no judgment to do simple duties that can be learned on the job in a
short period of time . . . . [A] person can usually learn to do the job in 30 days, and little specific
vocational preparation and judgment are needed.” 20 C.F.R. § 404.1568(a); SSR 83-10, 1983
WL 31251 at *7 (“The job may or may not require considerable strength. For example, we
consider jobs unskilled if the primary work duties are handling, feeding, and offbearing (that is,
placing or removing materials from machines which are automatic or operated by others), or
machine tending.”). The regulations also make it clear that basic work activities are “the abilities
and aptitudes necessary to do most jobs” and include “understanding, carrying out, and
remembering simple instructions.” Id. § 404.1561(b); SSR 85-15, 1985 WL 56857, at *4 (1985).
These regulations, read together, establish that unskilled work requires the ability to understand,
carry out, and remember simple instructions and duties—precisely the type of duties the ALJ
found that Lott retained the ability to perform despite his cognitive disorder secondary to closed
head injury and his other psychological impairments. (Tr. 25, Finding 7). In addition, as SSR
00-4p explains, “[u]sing the skill level definitions in 20 CFR [§] 404.1568 . . . unskilled work
corresponds to an SVP of 1-2.” SSR 00-4p, 2000 WL 1898704, at *3.
In relation to his cognitive problems, Lott argues, in sum, that the ALJ erred by finding
that “[a]lthough the claimant alleges that he has cognitive problems related to his ATV accident,
35

The ALJ also held that he “is unable to perform jobs requiring fine visual acuity” (Tr. 25, Finding 7).
This portion of her finding is not challenged in this appeal.

35

there is no imaging or other testing to confirm the existence of permanent brain damage.” (Doc.
11 at 5, quoting Tr. 25).

Lott thereafter offers only a generalized statement that “[t]he

Commissioner of Social Security must develop ‘a full and fair record regarding vocational
opportunities available to the claimant’.” Id., citing Allen v. Sullivan, 880 F.2d 1200, 1201 (11th
Cir. 1989). Lott does not delineate in what manner he intimates that the ALJ failed to meet her
burden in this regard. In the case relied upon by Lott, however, the Eleventh Circuit describes
the ALJ’s obligation as follows:
The ALJ must articulate specific jobs that the claimant is able to perform, and this
finding must be supported by substantial evidence, not mere intuition or
conjecture. See Cowart v. Schweiker, 662 F.2d 731, 736 (11th Cir.1981). . . .
Ordinarily, when non-exertional limitations are alleged, vocational testimony is
used. See Cowart v. Schweiker, 662 F.2d at 736; see also MacGregor v. Bowen,
786 F.2d 1050, 1054 (11th Cir.1986) (“When there have been non-exertional
factors (such as depression and medication side effects) alleged, the preferred
method of demonstrating that the claimant can perform specific work is through
the testimony of a vocational expert.”). “It is only when the claimant can clearly
do unlimited types of light work, ... that it is unnecessary to call a vocational
expert to establish whether the claimant can perform work which exists in the
national economy.” Ferguson v. Schweiker, 641 F.2d 243, 248 (5th Cir. Unit A,
March 1981) (emphasis in original).
Allen, 880 F.2d at 1201-02. In this case, unlike Allen, the ALJ did “elicit testimony from a
vocational expert to interpret and evaluate [Lott’s] medically documented non-exertional
psychological and emotional limitations.” (Id.). Here, Mr. Anderson testified that Lott could
perform the following unskilled jobs: janitor (DOT 381.687-018) which is medium, unskilled
(SVP level of 2) with 2,090,000 jobs available nationally and 26,700 available in Alabama; hand
packer (DOT 920.587-018) which is medium, unskilled (SVP level of 2) with 7,600 jobs
available nationally and 8,200 available in Alabama; kitchen helper (DOT 318.687-010) which
is medium, unskilled (SVP level of 2) with 550,000 jobs available nationally and 11,000
available in Alabama (Tr. 78).

36

Lott has also failed to establish that the ALJ did not properly account for his cognitive
limitations. (Doc. 11 at 7). Lott’s contention that the ALJ rejected his “cognitive disorder”
appears to rest solely on the ALJ’s reference to the lack of any imaging or testing that confirms
the existence of permanent brain damage. (Doc. 11 at 5, citing Tr. 26). The ALJ’s statement,
however, does not establish a rejection by the ALJ of the evidence supporting her finding that his
cognitive disorder was a severe impairment (Tr. 20). It merely establishes that the ALJ found
no evidence that Lott had permanent brain damage. The ALJ’s RFC assessment limited Lott to
“simple, routine, and repetitive tasks” (Tr. 25). This is a limitation was recommended by Dr.
Davis, who assessed Lott’s cognitive functioning with a mental status examination (Tr. 462-66).
It is also consistent with the opinion of state agency consultant, Dr. Hinton, who considered the
medical record and indicated that Lott would be able to understand, remember, and carry out
short and simple instructions without the need for special supervision or unusual breaks (Tr. 48385). Under the substantial evidence standard, the ALJ’s decision is entitled to deference when
more than a mere scintilla of evidence supports it. Barnes v. Sullivan, 932 F.2d1356, 1357 (11th
Cir. 1991). Because the ALJ’s treatment of Lott’s cognitive disorder was supported by
significantly more evidence than a mere scintilla, it must be affirmed.
CONCLUSION
For the reasons stated above, it is ORDERED that the decision of the Commissioner of
Social Security denying plaintiff’s benefits be and is hereby AFFIRMED.
DONE this 26th day of February, 2014.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

37