Taylor v. Astrue

Filing 26

MEMORANDUM OPINION AND ORDER entered. It is ORDERED that the decision of the Commissioner of Social Security denying plaintiff benefits be affirmed. Signed by Magistrate Judge William E. Cassady on 12/9/2013. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARSHALL TAYLOR,

:

Plaintiff,

:

vs.

:

CA 13-0062-C

CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security,
:
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking
judicial review of a final decision of the Commissioner of Social Security denying his
claims for disability insurance benefits and supplemental security income. The parties
have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28
U.S.C. § 636(c), for all proceedings in this Court. (Docs. 23 & 25 (“In accordance with the
provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to
have a United States Magistrate Judge conduct any and all proceedings in this case, . . .
order the entry of a final judgment, and conduct all post-judgment proceedings.”).)
Upon consideration of the administrative record, plaintiff’s brief, the Commissioner’s
brief, and the parties’ arguments during the hearing conducted on November 21, 2013,
it is determined that the Commissioner’s decision denying plaintiff benefits should be
affirmed.1

1

Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 23 & 25 (“An appeal from a
judgment entered by a Magistrate Judge shall be taken directly to the United States Court of

(Continued)

Plaintiff alleges disability due to degenerative disc disease of the C-spine, chronic
left shoulder pain, post-traumatic stress disorder (“PTSD”), depression, mood disorder,
NOS, and chronic pain. The Administrative Law Judge (ALJ) made the following
relevant findings:
1.
The claimant meets the insured status requirements of the Social
Security Act through September 30, 2013.
2.
The claimant has not engaged in substantial gainful activity since
March 15, 2008, the alleged onset date (20 CFR 404.1520(b), 404.1571 et
seq., 416.920(b) and 416.971 et seq.).
3.
The claimant has the following severe impairments:
polysubstance abuse, cervical disc disease, and post-traumatic stress
disorder with obsessive-compulsive disorder (20 CFR 404.1520(c) and
416.920(c)).
.

.

.

The claimant has received primary health care through the VA system
since at least 2004. Progress notes reflect treatment for tremor, depression,
post-traumatic stress disorder, obsessive-compulsive disorder, alcohol
abuse and dependence, cocaine abuse and dependence, cannabis
dependence in remission, cervical disc disease, shoulder pain, joint pain,
mild sensorineural hearing loss, presbvopia, and dry eyes. Past drug
screens have been positive for cocaine and marijuana.
.

.

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The claimant reported on May 28, 2009, that he had used alcohol to the
point of intoxication 7 days within the past week, and that he had used
cocaine once during the past week.
The claimant was [] admitted to the VA Medical Center in Biloxi,
Mississippi, on June 18, 2009, for a substance abuse treatment program.
The diagnoses were cocaine and alcohol dependence and the examiner
noted a long history of failed outpatient substance abuse treatment. For
reasons that are unclear, the claimant was discharged from the Biloxi VA

Appeals for this judicial circuit in the same manner as an appeal from any other judgment of
this district court.”))

2

and resumed in-patient treatment at the VA Medical Center in White City,
Oregon.2
Martin B. Lahr, M.D., a state agency physician, reviewed the evidence of
record on September 18, 2009, and completed a residual functional
capacity assessment on which he estimated that the claimant could lift and
carry 10 pounds frequently and 20 pounds occasionally. He estimated that
during an 8-hour workday, the claimant could stand and walk for up to 6
hours and sit for at least 6 hours. He indicated that the claimant was
limited to occasional climbing of ladders, ropes and scaffolds, and that he
was limited in ability to perform overhead reaching and fine
manipulation.
On September 21, 2009, Dorothy Anderson, Ph.D., a state agency
psychologist, completed a psychiatric review technique form on which she
indicated that the claimant had affective, anxiety, and substance abuse
disorders resulting in moderate limitations of social functioning and
concentration, persistence or pace. She reported that the claimant was not
limited in daily activities, that there were no episodes of decompensation,
and that the “C” criteria were not present. Dr. Anderson also completed a
mental residual functional capacity assessment on which she estimated
that the claimant was moderately limited in ability to carry out detailed
instructions, in ability to maintain attention and concentration for
extended periods, in ability to work in proximity to others without being
distracted, in ability to interact with the general public, and in ability to
respond appropriately to co-workers. . . . She concluded that the claimant
could occasionally interact with the public and with co-workers. She
stated that his impairments would disrupt attention and concentration
with regard to detailed or complex tasks. She recommended independent
work and stated that he would benefit from assistance in setting realistic
goals.
During his hospitalization in Oregon, the claimant seems to have
had some degree of conflict with fellow patients and, on one occasion,
another veteran placed a rope around the claimant’s neck during a
therapy session. The claimant was understandably upset about the
incident and [ultimately] left the hospital. His discharge was dated
January 9, 2010. His condition was described as improved. Diagnoses
upon discharge were cocaine dependence, alcoholism, obsessivecompulsive disorder, post-traumatic stress disorder, shoulder pain,
erectile dysfunction, generalized anxiety disorder, obsessive-compulsive
personality, social phobia, depression, tremor[s] and hemorrhoids.

2

While perhaps not apparent to the ALJ, it is clear from the evidence that Taylor
applied to the long-term in-patient program offered by the VA Medical Center in White City,
Oregon and was accepted. (Compare Tr. 447 with Tr. 618.)

3

The claimant was seen at the Biloxi VA on January 19, 2010, and reported
a recent alcohol relapse. He described symptoms of anxiety. He stated
that, while in the military, he had witnessed the deaths of some fellow
service members and a female civilian. He complained of nightmares,
flashbacks, paranoia, and hyper[]vigilance. VA psychiatrist Juliana Fort,
M.D., stated on February 2 that the claimant was disabled and had
difficulty with day-to-day functioning even within an intensive residential
treatment program.
On March 10, 2010, a VA drug screen was positive for cocaine.
Robert G. Haas, M.D., a state agency physician, reviewed the evidence on
March 24, 2010, and reported that he concurred with Dr. Lahr’s
conclusions.
On March 25, 2010, state agency physician Robert Estock, M.D., completed
a psychiatric review technique form on which he indicated that the
claimant had affective, anxiety, and substance abuse disorders resulting in
mild limitation[s] of activities of daily living and moderate limitations of
social functioning and concentration, persistence or pace. He reported that
there were no episodes of decompensation and that the “C” criteria were
not present. Dr. Estock also completed a mental residual functional
capacity assessment on which he estimated that the claimant was
moderately limited in ability to understand, remember, and carry out
detailed instructions; in ability to maintain attention and concentration for
extended periods; in ability to work in proximity to others without being
distracted; in ability to interact with the general public; and in ability to
respond appropriately to co-workers. He concluded that the claimant
could understand, remember, and carry out short, simple instructions,
and that he could handle detailed instructions if broken down into 1-2
step instructions and rehearsed adequately. He stated that attention was
adequate to perform simple work for 2-hour periods without special
supervision or rest periods.
State agency physician Richard Whitney, M.D., conducted a review of the
evidence on March 26, 2010, and completed a residual functional capacity
assessment on which he estimated that [] the claimant could lift and carry
10 pounds frequently and 20 pounds occasionally. He estimated that,
during an 8-hour workday, the claimant could stand and walk for up to 6
hours and sit for at least 6 hours. He indicated that the claimant was
unable to climb ladders, ropes and scaffolds. He reported that the
claimant was limited in ability to perform bilateral overhead reaching and
in ability to perform frequent fine manipulation. He indicated that the
claimant should avoid concentrated exposure to hazards.
Dr. Fort reported on April 6, 2010, that the claimant was unable to tolerate
pain due to physical and psychological factors. She noted “severe”
cervical radiculopathy, shoulder pain and a tremor.
4

The claimant was admitted to the Biloxi facility on June 9, 2010. He
reported that he was supposed to have remained in treatment at the
Oregon facility for 2 years, but that he had returned to the Gulf Coast in
January 2010. The examiner noted that the claimant had a regular
discharge from the White City VA and that no problems were noted. The
claimant stated that he had started using alcohol in January 2010 and
cocaine in March 2010. The examiner observed that the claimant was
unable to focus on his issues upon admission, but that he was started back
on Celexa and trazadone and demonstrated improvement within 72
hours. He was discharged on June 14 and resumed participation in the
substance abuse treatment program on June 18; it is unclear from the
record whether the program was an in-patient program.
VA records from September 2010 indicate that the claimant reported that
he relapsed in June 2010. He stated in October 2010 that he last used
alcohol and cocaine in April 2010.
John B. Howell, M.D., a VA physician[,] completed a physical capacities
evaluation of the claimant on November 15, 2010. He estimated that the
claimant could lift and carry 20 pounds occasionally to 10 pounds
frequently. He reported that the claimant could sit, stand, and walk for
respective totals of 8 hours. He indicated that the claimant could rarely
perform gross or fine manipulation or reaching. He indicated that the
claimant could occasionally push, pull, operate motor vehicles, and work
around hazardous machinery. Dr. Howell reported that the claimant
could be expected to be absent from work one day per month. He
attributed the claimant’s limitations to left arm and shoulder pain with
restriction of motion due to pain. Dr. Howell also completed a clinical
assessment of pain [form] on which he indicated that the claimant
experienced pain that was distracting to the adequate performance of
daily activities or work, and that physical activity could be expected to
aggravate the claimant’s pain to such an extent as to cause distraction
from or abandonment of tasks. He specified that physical activity referred
to overhead lifting on the left. He stated that medication side effects
would not create serious problems in most instances.
A VA note dated December 26, 2010, reflects that the claimant had
recently overdosed with thoughts of self-harm. He stated in January 2011
that he had been sober since September 2010. At that time, he was
diagnosed with post-traumatic stress disorder, alcohol abuse, and cocaine
abuse in partial remission.
The record indicates that the claimant has had intermittent medical care
through the VA for a variety of physical ailments. On May 27, 2009, the
claimant complained of an essential tremor that had been present since
childhood, but that had worsened. An examiner noted on June 22 that the
claimant’s left shoulder was higher than the right, but that range of
motion was normal. A tremor was noted. The physician suspected
5

exophthalmos possibly related to hyperthyroidism. The claimant was also
diagnosed with hemorrhoids, chronic left shoulder pain, cocaine and
alcohol dependence, and substance-induced depression at that time. The
claimant reported on June 3 that he walked daily for exercise.
On July 13, 2009, the claimant underwent left shoulder and cervical spine
x-rays. The left shoulder x-rays were negative. The cervical spine x-rays
demonstrated moderately severe degenerative disc disease at C5-6 and
C6-7.
The claimant was evaluated for left knee pain on December 9, 2009. He
also reported back pain, a history of a small stroke in 1995 with left
hemiparesis and left arm numbness that persisted for a while thereafter,
and increasing left shoulder pain since 2005. Left knee x-rays were
negative. The physician noted that ambulation was somewhat affected by
the knee. It was concluded that he had a 10% service-connected disability.
The claimant reported on December 21 that a TENS unit was very
effective in relieving his neck and shoulder pain, and that he had
decreased his medication usage from four times a day to twice a day. He
underwent a left shoulder magnetic resonance imaging scan on December
28. The results demonstrated mild acromioclavicular arthrosis with
minimal impression on the supraspinatus musculotendinous junction. The
claimant underwent electromyography on January 10, 2010. The results
were within normal limits.
On May 26, 2010, the claimant had left shoulder and cervical spine x-rays.
The left shoulder x-rays were normal; however, the cervical spine series
revealed degenerative disc disease at C5-6 and C6-7.
.

.

.

Philip L. Cenac, a VA psychiatrist, saw the claimant on February 26, 2011.
The claimant reported that he was depressed, but that he had improved.
Dr. Cenac noted a suicide attempt in November 2010. He diagnosed
cocaine dependence in remission, mood disorder due to general medical
condition and cocaine-induced mood disorder, and post-traumatic stress
disorder.
Ernest Hudson, D.O., a VA psychiatrist, evaluated the claimant on April
25, 2011. The claimant reported occasional fleeting suicidal ideation
without intent. Dr. Hudson noted depressed mood. He saw the claimant
again on May 23. He reported a normal mental examination and stated
that the claimant was tolerating his medications well and that his
symptoms were improving.
On June 23, 2011, Dr. Hudson completed a mental residual functional
capacity assessment of the claimant on which he reported that the
claimant was markedly to extremely impaired in all areas of functioning.
6

He stated that the limitations were persistent despite more than one year
of abstinence and compliance with therapy and medications.
4.
The claimant’s impairments, including the substance use
disorders, meet sections 12.04, 12.06, and 12.09 of 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d) and 416.920(d)).
The claimant’s mental impairments, including the substance use
disorders, meet listings 12.04, 12.06, and 12.09. The “paragraph A” criteria
are satisfied because the claimant has specific symptoms of depression,
such as feelings of guilt, difficulty concentrating, suicidal ideation, and
paranoid thinking, as well as symptoms of anxiety such as obsessivecompulsive behavior, flashbacks, and hyper-vigilance. His depression and
anxiety meet the “A” criteria of [] Listing 12.09. To satisfy the “paragraph
B” criteria, the impairments must result in at least two of the following:
marked restriction of activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of
decompensation, each of extended duration. A marked limitation means
more than moderate but less than extreme. Repeated episodes of
decompensation, each of extended duration, means three episodes within
1 year, or an average of once every 4 months, each lasting at least 2 weeks.
In activities of daily living, the claimant has marked restriction. In social
functioning, the claimant has moderate difficulties. With regard to
concentration, persistence or pace, the claimant has marked difficulties.
The claimant has experienced no episodes of decompensation of extended
duration.
Because the claimant’s mental impairments, including the substance use
disorders, cause at least two “marked” limitations or one “marked”
limitation and “repeated” episodes of decompensation, the “paragraph B”
criteria are satisfied.
In the disability report filed with his application, the claimant alleged that
he was unable to work due to pain and inability to concentrate as a result
of post-traumatic stress disorder. After careful consideration of all the
evidence, the undersigned finds that the claimant is credible concerning
his alleged mental symptoms and limitations. The evidence of record
reflects that examining psychologists and psychiatrists have considered
him to be disabled and have repeatedly estimated global assessments of
functioning in the 45-50 range, which, according to the Diagnostic and
Statistical Manual of Mental Disorders (4th edition) (DSM-IV), indicates
serious symptoms or serious limitations of social or occupational
functioning.
I give substantial weight to the assessments of Doug Ewing, M.D., Randal
Caffarel, M.D., Damon Robinson, Ph.D., and Dr. Fort, which reflect that
the claimant is markedly limited in functioning from a mental standpoint.
7

Their opinions are well supported by their own clinical examinations and
testing, as discussed above, and are generally consistent with the record as
a whole.
5.
If the claimant stopped the substance use, the remaining
limitations would cause more than a minimal impact on the claimant’s
ability to perform basic work activities; therefore, the claimant would
continue to have a severe impairment or combination of impairments.
The claimant has maintained periods of abstinence, but his depression and
anxiety, though improved, are persistent. It can therefore be concluded
that, even if the claimant were to discontinue all substance abuse, his
remaining limitations would cause more than a minimal impact on his
ability to perform basic work activities.
6.
If the claimant stopped the substance use, the claimant would not
have an impairment or combination of impairments that meets or
medically equals any of the impairments listed in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d) and 416.920(d)).
The claimant’s musculoskeletal impairments do not result in inability to
ambulate effectively or inability to perform fine and gross movements,
and therefore are not of the level of severity contemplated at Medical
Listing 1.01.
If the claimant stopped the substance use, the remaining limitations
would not meet or medically equal the criteria of listings 12.04 or 12.06. In
terms of the “paragraph B” criteria, the claimant would have mild
restriction in activities of daily living if the substance use was stopped. In
social functioning, the claimant would have moderate difficulties if the
substance use was stopped. With regard to concentration, persistence or
pace, the claimant would have moderate difficulties if the substance use
was stopped. The claimant would experience no episodes of
decompensation if the substance use was stopped.
Because the remaining limitations would not cause at least two “marked”
limitations or one “marked” limitation and “repeated” episodes of
decompensation, the “paragraph B” criteria would not be satisfied if the
claimant stopped the substance use.
The undersigned has also considered whether the “paragraph C” criteria
would be satisfied. In this case, these criteria would not be met if the
claimant stopped the substance use. Specifically, there is no indication of
repeated episodes of decompensation, each of extended duration; a
residual disease process that has resulted in such marginal adjustment
that even a minimal increase in mental demands or change in the
environment would be predicted to cause the individual to decompensate;
or current history of 1 or more years’ inability to function outside a highly
supportive living arrangement with an indication of continued need for
8

such an arrangement. With regard to anxiety, there is no indication of
complete inability to function independently outside the area of one’s
home.
The limitations identified in the “paragraph B” criteria are not a residual
functional capacity assessment but are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process. The
mental residual functional capacity assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment by
itemizing various functions contained in the broad categories found in
paragraph B of the adult mental disorders listings in 12.00 of the Listing of
Impairments. Therefore, the following residual functional capacity
assessment reflects the degree of limitation the undersigned has found in
the “paragraph B” mental function analysis.
7.
If the claimant stopped the substance use, he would have the
residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except that he is unable to perform overhead
reaching; he is limited to no more than occasional reaching, handling,
fingering, feeling, pushing and pulling with the non-dominant arm; he
is limited to occasional use of foot controls, climbing of stairs and
ramps, bending, stooping, and crouching; he is unable to climb ladders,
scaffolds or ropes; he is unable to kneel, crawl, or work around
unprotected heights or dangerous equipment; he is unable to perform
complex or detailed job tasks; he is unable to work around crowds; he
is limited to occasional public contact; he is limited to work in an
environment where changes in the work setting would be minimal; and
he can make judgments only on simple work-related decisions. He is
able to perform short, simple tasks and jobs with 1-2 instructions or
steps.
In making this finding, the undersigned has considered all symptoms and
the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence, based
on the requirements of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and
96-7p. The undersigned has also considered opinion evidence in
accordance with the requirements of 20 CFR 404.1527 and 416.927 and
SSRs 96-2p, 96-5p, 96-6p and 06-3p.
In considering the claimant’s symptoms, the undersigned must follow a
two-step process in which it must first be determined whether there is an
underlying medically determinable physical or mental impairment(s)—
i.e., an impairment(s) that can be shown by medically acceptable clinical
and laboratory diagnostic techniques—that could reasonably be expected
to produce the claimant’s pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the claimant’s pain or other symptoms
has been shown, the undersigned must evaluate the intensity, persistence,
9

and limiting effects of the claimant’s symptoms to determine the extent to
which the they limit the claimant’s ability to do basic work activities. For
this purpose, whenever statements about the intensity, persistence, or
functionally limiting effects of pain or other symptoms are not
substantiated by the objective medical evidence, the undersigned must
make a finding on the credibility of the statements based on a
consideration of the entire case record.
At the hearing, the claimant testified as follows: He was born on June 5,
1960, and is 51 years old. He is separated from his current wife and lives
with his ex-wife. She works. They live in an apartment. He gets $123.00
monthly for a service-connected left knee impairment. He is right-handed.
He can read and print. He was in the army from January 1, 1980, through
December 31, 1983. . . . He has left neck and shoulder pain. He uses a
TENS unit. Pain medication makes the pain bearable. The pain got bad
after he went off drugs. He may have surgery. He was in Oregon trying to
get his life together in treatment. He was sent to Mississippi and then
came to Mobile. He has screaming inside. He takes medication. It helps
some. Every Monday he has called the hotline about suicide. He can walk
for about an hour and then his knee hurts and his feet swell. Standing
makes his neck hurt after 30 minutes. He takes the trash out and washes
the dishes. He doesn’t go to church because he thinks people laugh at him.
His license is suspended because he got a ticket and didn’t pay it. He last
used cocaine in January 2010. He last used alcohol when he had a beer on
Father’s Day. . . . He has headaches every day. It could be from his neck.
He takes pain medication. He has post-traumatic stress disorder. He
wants to be left alone. He gets angry when he thinks people are laughing.
He has thoughts of hurting himself. Pills make him go to sleep fast, but he
has nightmares and sleepwalks. He can’t focus on TV. He uses the TENS
unit for 90 minutes at a time.
If the claimant stopped the substance use, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to produce the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent with
the residual functional capacity assessment for the reasons explained
below.
The record reflects that the claimant has an extensive history of substance
abuse for most of the period of time covered by the records. The available
evidence does suggest that his symptoms are significantly aggravated by
substance abuse and improved with abstinence. His depression has been
described as substance-induced and cocaine-induced mood disorder was
diagnosed as recently as February 2011. Records from June 2010 indicate
that the claimant demonstrated rapid improvement with abstinence and
resumption of psychotropic medications. The most current treatment
notes indicate normal findings and good improvement with treatment.
10

One would not expect a complete remission of depression, anxiety and
associated obsessive-compulsive traits, even with prolonged abstinence.
Nevertheless, given the claimant’s demonstrated capacity for
improvement with abstinence, as well as his excellent work history, it is
reasonable to suppose that he will be able to return to functional status
once his alcohol and drug abuse are in full sustained remission. I find that,
with abstinence, the claimant could perform work that involves short,
simple tasks with 1-2 instructions or steps but not complex or detailed job
tasks; that does not require him to be around crowds; that requires no
more than occasional public contact; that is performed in an environment
where changes in the work setting would be minimal; and that does not
require any more than simple work-related decisions. I further find that,
assuming prolonged abstinence from all substance abuse, the residual
functional capacity assessments completed by Dr. Anderson and Dr.
Estock represent reasonable estimates of functioning consistent with the
VA treatment records.
I have considered Dr. Fort’s disability statement and Dr. Hudson’s
residual functional capacity assessment. I note that Dr. Fort’s statement
was propounded during a period of active substance abuse on the part of
the claimant and cannot be considered applicable to his condition when
abstinent. Moreover, Dr. Hudson’s assessment is not supported by his
own treatment notes, which indicate excellent improvement from April
2011 to May 2011 and a completely normal mental status examination in
May. It is also noted that “partial remission” was diagnosed as recently as
January 2011, despite Dr. Hudson’s assertion that the claimant had been
sober for more than a year as of April 2011. In fact, records from 2010 in
particular are quite unclear as to when the claimant stopped using, and, as
noted, it is not clear that the claimant had discontinued all substance
abuse even by 2011. In any event, the marked to extreme limitations
described by Dr. Hudson are significantly disproportionate to his reported
examination findings and cannot be considered persuasive, whether or
not the effects of substance abuse are considered.
The claimant reports chronic left-sided neck and shoulder pain. Left
shoulder x-rays have been normal, and magnetic resonance imaging
reveals only minor degenerative change. On the other hand, cervical spine
x-rays demonstrate moderately severe degenerative disc disease at C5-6
and C6-7. Nevertheless, the claimant has sought only intermittent
treatment despite extensive access to medical care. He has reported good
relief with a TENS unit and has not attempted to obtain further work-up
or treatment for his cervical disc disease. I have considered Dr. Howell’s
physical capacities evaluation and clinical assessment of pain, but note
that he specified that the stated limitations referred to the claimant’s left
arm symptoms. I give Dr. Howell’s physical capacities evaluation
significant weight, but I find there is no objective evidence of cervical
radiculopathy; electromyography was within normal limits. There is thus
no basis for concluding that the claimant cannot perform at least
occasional reaching, handling, fingering, feeling, and pushing and pulling
11

with the left arm. Overall, the reported severity of symptoms is in excess
of objective findings.
I find that the claimant can perform light work except that he is unable to
perform overhead reaching; he is limited to no more than occasional
reaching, handling, fingering, feeling, pushing and pulling with the nondominant arm; he is limited to occasional use of foot controls, climbing of
stairs and ramps, bending, stooping, and crouching; he is unable to climb
ladders, scaffolds or ropes; and he is unable to kneel, crawl, or work
around unprotected heights or dangerous equipment.
It is noted that the claimant has a history of left knee pain. X-rays are
within normal limits and a VA physician stated in June 2009 that the
claimant was cleared for physical activity with only limitation being left
shoulder pain. Treatment has been at best minimal, although the claimant
evidently has a 10% service-connected disability for knee pain. . . . Even if
the claimant does have some intermittent knee pain, there is no reason to
suppose that he could not perform activities within the stated residual
functional capacity.
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.

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8.
If the claimant stopped the substance use, the claimant would be
unable to perform past relevant work (20 CFR 404.1565 and 416.965).
The claimant has past relevant work as [a] nurse’s aide, janitor, and door
assembler. At the hearing, the vocational expert was asked to classify the
claimant’s past work by skill and exertional level. He responded that the
claimant’s experience as a nurse’s aide (Dictionary of Occupational Titles
No. 354.377-0140) represented medium semi-skilled work with a specific
vocational preparation (SVP) level of 3; that his experience as a janitor
(DOT No. 381.687-018) represented medium unskilled work; and that his
experience as a door assembler (DOT No. 351.966-010) represented
medium semi-skilled work at SVP 3. The vocational expert was then asked
to consider the availability of any of the claimant’s past work, assuming
the residual functional capacity set forth above. He responded that the
stated limitations would preclude performance of any of the claimant’s
past relevant work.
Accordingly, it is concluded that the claimant would not be able to
perform past relevant work if he stopped substance use.
9.
The claimant was born on June 5, 1960, and was 47 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
10.
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
12

11.
Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
12.
If the claimant stopped the substance use, considering the
claimant’s age, education, work experience, and residual functional
capacity, there would be a significant number of jobs in the national
economy that the claimant could perform (20 CFR 404.1560(c), 404.1566,
416.960(c), and 416.966).
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.

.

If the claimant stopped the substance use, the claimant would not have the
residual functional capacity to perform the full range of light work. To
determine the extent of erosion of the unskilled light occupational base
caused by the limitations that would remain, the Administrative Law
Judge asked the vocational expert whether jobs exist in the national
economy for an individual with the claimant’s age, education, work
experience, and the residual functional capacity the claimant would have
if he stopped the substance use. The vocational expert testified that given
all of these factors the individual would be able to perform the
requirements of representative unskilled light occupations such as
cafeteria attendant (DOT No. 311.677-010), with 1,200 such jobs existing
statewide and 300,000 nationally; custodian or housekeeper (DOT No.
323.687-014), with 5,400 such jobs existing statewide and 900,000
nationally; and packer (DOT No. 920.685-026), with 1,250 jobs existing
statewide and 325,000 nationally.
Pursuant to SSR 00-4p, the vocational expert’s testimony is consistent with
the information contained in the Dictionary of Occupational Titles.
Based on the vocational expert’s testimony, the undersigned concludes
that, if the claimant stopped the substance use, he would be capable of
making a successful adjustment to work that exists in significant numbers
in the national economy. A finding of “not disabled” is therefore
appropriate under the framework of 202.21.
13.
Because the claimant would not be disabled if he stopped the
substance use (20 CFR 404.1520(g) and 416.920(g)), the claimant’s
substance use disorders [are] . . . contributing factor[s] material to the
determination of disability (20 CFR 404.1535 and 416.935). Thus, the
claimant has not been disabled within the meaning of the Social
Security Act at any time from the alleged onset date through the date of
this decision.

13

(Tr. 12-13, 13, 13-16, 16, 16-19, 19, 19-20, 20, 20-21, 21, 22 & 23 (emphasis in original;
internal citations omitted; footnote added).) The Appeals Council affirmed the ALJ’s
decision (Tr. 1-3) and thus, the hearing decision became the final decision of the
Commissioner of Social Security.
DISCUSSION
In making a social security disability determination, the Commissioner employs
a five-step sequential evaluation process. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th
Cir. 2004). The claimant bears the burden of proof at each of the first four steps of the
process, which are: (1) whether he is currently performing substantial gainful activity;
(2) whether he has severe impairments; (3) whether his severe impairments meet or
medically equal a listed impairment; and (4) whether he can perform his past relevant
work. See id. at 1237-1239. It is only at the fifth step of the sequential evaluation process
that the burden shifts to the Commissioner, who must establish that there are a
significant number of jobs in the national economy that the claimant can perform. See id
at 1239-1240. In addition to the foregoing, the Contract with America Advancement Act
of 1996 (“CAAA”), codified as amended 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). Therefore, in those cases
in which the Commissioner “determines a claimant to be disabled and finds medical
evidence of drug 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 went on to note that the “key factor in determining whether drug addiction or
alcoholism is a contributing factor material to the determination of a disability . . . is
14

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). As for who bears the burden of proof with
respect to this materiality determination, the Daughty court agreed with the Fifth
Circuit’s decision in Brown v. Apfel, 192 F.3d 492 (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.”).
As reflected above, the ALJ effectively performed the first three steps of the
required five-step sequential analysis twice and steps four and five once. In performing
the first inquiry, the ALJ assumed Taylor was still using alcohol and perhaps drugs.
(Compare Tr. 17 with Tr. 18.) At step one, the ALJ determined that plaintiff has not
engaged in substantial gainful activity since March 15, 2008, the alleged disability onset
date. (Tr. 12.) At step two, the ALJ determined that Taylor suffers from the following
severe impairments: “polysubstance abuse, cervical disc disease, depression, and
post-traumatic stress disorder with obsessive-compulsive disorder[.]” (Tr. 13.) And at
the third step, the ALJ found that claimant’s impairments, including the substance use
disorders, meet sections 12.04, 12.06, and 12.09 of the Listings of Impairments (Tr. 17.)
The ALJ then shifted his inquiry to make findings as “[i]f the claimant [had] stopped
the substance use[.]” (Tr. 18.) In this second inquiry, the ALJ found at step two that
“the remaining limitations would cause more than a minimal impact on the
claimant’s ability to perform basic work activities; therefore, the claimant would
continue to have a severe impairment or combination of impairments.” (Id.) At the
third step, the ALJ determined that absent substance use Taylor “would not have an
impairment or combination of impairments that meets or medically equals any of the
15

[listed] impairments[.]” (Id.) The ALJ found that absent substance use, the claimant
“would have the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except that he is unable to perform overhead
reaching; he is limited to no more than occasional reaching, handling, fingering,
feeling, pushing and pulling with the non-dominant arm; he is limited to occasional
use of foot controls, climbing of stairs and ramps, bending, stooping, and crouching;
he is unable to climb ladders, scaffolds or ropes; he is unable to kneel, crawl, or work
around unprotected heights or dangerous equipment; he is unable to perform
complex or detailed job tasks; he is unable to work around crowds; he is limited to
occasional public contact; he is limited to work in an environment where changes in
the work setting would be minimal; and he can make judgments only on simple
work-related decisions. He is able to perform short, simple tasks and jobs with 1-2
instructions or steps.” (Tr 19.) At step four, the ALJ concluded that the plaintiff “would
be unable to perform past relevant work[.]” (Tr. 21.) However, at step five, the ALJ
determined that in light of the vocational expert’s testimony, and within the framework
of Rule 202.21 of the Medical-Vocational Guidelines, “there would be a significant
number of jobs in the national economy that the claimant could perform” should
plaintiff stop the substance use. (Tr. 22) Because the ALJ determined that substance use
was a contributing factor material to the determination of disability, she concluded that
Taylor was not under a disability from March 15, 2008 through the date of the decision
(August 3, 2011). (Tr. 23.)
This Court reviews a social security disability case to determine whether the
Commissioner’s decision is supported by substantial evidence and whether the ALJ
applied the correct legal standards. See, e.g., Lewis v. Callahan, 125 F.3d 1436, 1439 (11th
Cir. 1997). Substantial evidence is defined as more than a scintilla and means such
16

relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842
(1971); compare also Somogy v. Commissioner of Social Security, 366 Fed.Appx. 56, 62 (11th
Cir. Feb. 16, 2010) (“Substantial evidence is more than a scintilla . . . .” (citation omitted))
with Hillsman v. Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986) (an ALJ’s decision “cannot
stand with a ‘mere scintilla’ of support[]”). Even if the evidence preponderates against
the Commissioner’s decision, that decision must be affirmed if it is supported by
substantial evidence. Compare id. (“The decision of the ALJ need not be supported by a
preponderance of the evidence[.]”) with Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir.
1986) (“Even if the evidence preponderates against the [Commissioner], we must affirm
if the decision is supported by substantial evidence.”). And while this Court “’may not
decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the
[Commissioner,]’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (citation
omitted), it nonetheless “must view the entire record and take account of evidence in
the record which detracts from the evidence relied on by the ALJ[,]” Tieniber v. Heckler,
720 F.2d 1251, 1253 (11th Cir. 1983) (citations omitted); see also Chester v. Bowen, 792 F.2d
129, 131 (11th Cir. 1986) (“In determining whether substantial evidence exists, we must
view the record as a whole, taking into account evidence favorable as well as
unfavorable to the [Commissioner’s] decision.”).
With these principles in mind, the undersigned turns to a consideration of the
three issues raised by the plaintiff in this case, that is, his arguments that: (1) the ALJ’s
RFC assessment lacks the support of substantial evidence in light of her rejection of
treating source opinions; (2) the ALJ erred in finding that substance abuse was a
contributing factor material to the determination of his disability; and (3) the ALJ failed
to articulate or apply the three-part pain standard. (Doc. 16, at 4.) This Court’s focus will
17

be upon the second issue raised by plaintiff and from a discussion of whether the ALJ
properly determined that Taylor’s drug addiction or alcoholism is a contributing factor
material to the determination of disability the undersigned will consider plaintiff’s
“RFC” and “pain” contentions. That this is the correct approach is clear given plaintiff’s
argument in his brief that the opinions of his treating psychiatrists, Drs. Fort and
Hudson, support his contention that polysubstance abuse is not material in determining
disability since both psychiatrists treated him during periods of sobriety and indicated
his inability to work during those periods.
As aforesaid, plaintiff contends that the ALJ erred in finding that substance
abuse was a contributing factor material to the determination of his disability. The
undersigned cannot agree with plaintiff in this regard since a review of the ALJ’s
decision in this case reveals a copious review of all record evidence from the alleged
onset date of March 15, 2008 through the date of the decision and a detailed explanation
by the ALJ of why the evidence in the record as a whole supports the conclusion that
Taylor’s substance abuse is a material contributing factor. In other words, contrary 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.
The ALJ’s essential “two-time” performance of the first three steps of the fivestep sequential inquiry, and then one consideration of steps four and five, as synopsized
above, certainly reflects that the hearing officer drafted her decision in compliance with
20 C.F.R. §§ 404.1535 and 416.935, which are the sections of the regulations which
address how the Commissioner is to go about determining whether a claimant’s drug
addiction or alcoholism is a contributing factor material to the determination of
18

disability. The undersigned would note that there are a plethora of references in the
record to plaintiff’s abuse of alcohol and drugs exacerbating his mental impairments—
or, at the very least, linking his substance use to his mental impairments—or, otherwise,
records indicating that when alcohol and drugs are taken away and psychiatric
medications adjusted there is a concomitant decrease in symptoms. (See, e.g., Tr. 330-469
& 1034-1155 (medical records from May 11, 2009 through June 15, 20093 from the Biloxi
VA where plaintiff was accepted for an in-patient substance abuse treatment program
before transferring to a long term residential treatment program in Oregon reflect
plaintiff’s report that he last used alcohol—a 6-pack—and cocaine—a “quarter”—on
May 9, 20094;5 reflect that when plaintiff started the program, and more specifically
began participating in a depression group, he started with a moderate depression score
and ended with a mild depression score; are littered with GAF scores ranging from 55
to 65, indicative of moderate to mild symptoms,6 despite Taylor’s self report that he was
experiencing serious psychological problems, including serious depression and

3

During this period, despite reporting back, shoulder, and left knee pain (Tr. 466),
plaintiff also reported that during the previous twelve months he engaged in numerous
physical activities, including walking and active sports—football and basketball (Tr. 462).
4

A urine drug test on May 11, 2009 was positive for cocaine use. (Tr. 278.) On July
24, 2009, Taylor reported to his addiction therapist in Oregon that over the previous year “[h]e
was using crack cocaine daily . . . [and] was drinking daily and drank at least a 6 pack of beer or
a bottle of wine every day.” (Tr. 640; see also Tr. 835 (on admission to the VA in Oregon on June
18, 2009, Taylor reported that on a typical day in the past year he had 10 or more drinks
containing alcohol).)
5

On May 13, 2009, Taylor reported that he last used cannabis “over one year ago.”
(Tr. 459.) However, lab records reflect that plaintiff tested positive for cannabinoids—as well as
cocaine—on October 6, 2008. (Tr. 279.) Moreover, there is evidence from mid-2008 that Taylor
was actively abusing alcohol as he “agreed” on June 15, 2008 to “limit” his drinking to a
maximum of “12 drinks per week . . . 2 drinks per occasion.” (Tr. 534.)
6

See http://depts.washington.edu/washinst/Resources/CGAS/GAF (last visited

Dec. 3, 2013).

19

anxiety7; and, as well, contain references to Taylor’s stability—supported by clinical
findings of his mood being euthymic with appropriate affect, thought process and
content organized and logical with adequate insight and judgment—and ability to
participate in the long term recovery program in Oregon); Tr. 486-513, 516 & 522-531
(VA records from January through March of 2009 reflect GAF scores indicative of
serious problems but also reflect diagnoses of active cocaine and alcohol dependence
and/or reports of quitting anti-depressant medication and having an increase in
symptoms of depression/anxiety); Tr. 618 & 623 (initial psychiatric assessment consult
from Dr. Alfred Frank Brem on June 25, 2009 at the VA Medical Center in White City,
Oregon, noting Taylor’s “history of depression intertwined with his substance abuse
problems[]” and summarizing that Taylor appeared “to have intertwined problems
with depression and substance abuse[]”); Tr. 818 (plaintiff’s self-report to Dr. Robert J.
Naymik on June 19, 2009 that “his depression [was] getting better now that he has been
clean and sober[]”); Tr. 643, 787, 933-934, 939-941, 952-954, 959-960, 963-964, 967-985,
989-990, 1345, 1349-1430, 1439-1454, 1457-1461, 1464-1576, 1596-1617, 1626-1705 & 17271740 (VA records from Oregon reflecting that Taylor was progressing well in the longterm substance abuse from admission in June of 2009 to November of 2009, including
working fulltime as a Section 4 Office Clerk, until his PTSD “around racial issues
became activated during a treatment element [in ELP on November 4, 2009]“ and he
and the VA staff were unable to “affect” a resolution of the situation leading to claimant

7

This evidence certainly supports a finding that Taylor’s cocaine and alcohol
abuse were contributing factors material to the determination of disability inasmuch as on May
6, 2009, three days before Taylor reported that he last used alcohol and cocaine, his addiction
therapist—whose report contains a diagnosis of post-traumatic stress disorder along with
alcohol and substance abuse—determined his GAF score to be 45 (Tr. 475), indicative of serious
symptoms.

20

leaving the long-term program on January 8, 2010, although Taylor ultimately
“graduated” from the ELP program some five or six weeks later and indicated that he
learned in ELP to focus not on the past but on the “here and now,” indicated
immediately after the “noose” incident that he wanted “to move on” and that he had
accepted the apology of the guy who put the rope around his neck during ELP,8
continued to work well after the incident—including 92 hours during the two-week
periods of November 22, through December 5, 2009 and December 6 through December
19, 2009—and documented GAF scores of 52 on December 9, 2009, and again on
December 16, 2009, despite diagnoses of chronic PTSD, obsessive-compulsive disorder,
acute stress reaction, generalized anxiety disorder, alcohol abuse, and cocaine abuse,
and reported that he felt really good and happy on December 3, 2009 because he was
able to buy Christmas gifts for his family); Tr. 1403 (Dr. Mary Ann Montgomery’s
November 24, 2009 assessment that Taylor has “intertwined problems with depression
and substance abuse[]”); Tr. 1183 (Dr. Juliana Fort’s January 19, 2010 impression that
Taylor’s polysubstance dependency, primarily cocaine, alcohol and tobacco was only in
partial remission and her feeling that claimant had a GAF score of 40); Tr. 2050 (Nurse
Practitioner William Reasor’s June 25, 2010 discharge diagnosis of “[c]ocaine induced
mood disorder[,]” as well as cocaine dependence); Tr. 2053-2054 (June 16, 2010 notation
by Dr. Angelos Vamvakas that once plaintiff was “placed back on Celexa and
Trazadone as previously prescribed” he was able to talk about his cocaine addiction
within 72 hours of his admission and that his diagnoses were cocaine induced mood
8

Interestingly, when Taylor returned to the Biloxi VA as a walk-in on January 19,
2010, the notes of the intake nurse reflect the following description of the incident: “Pt reports
he was in [a] program in Oregon and there is documentation that he and others were putting
‘nooses’ around their neck. Pt states it was a prank and when he tried to tell his congressman
about it, the VA ‘shipped me out on a bus’.” (Tr. 1026 (emphasis supplied).)

21

disorder and cocaine dependence with a GAF score of 35); Tr. 2067-2068 (January 13,
2011 notation by Dr. Jennifer M. Jackson that Taylor did not meet the DSM-IV criteria
for a diagnosis of PTSD but that his Taylor’s cocaine dependence was in early partial
remission and that his current GAF score was a 52, indicative of moderate symptoms);
Tr. 2074 & 2083 (Dr. Damon Robinson’s November 18, 2010 and December 6, 2010
diagnoses of PTSD, alcohol abuse, and cocaine abuse in partial remission, along with a
GAF score of 45); Tr. 2105 (Dr. Juliana Fort’s August 3, 2010 diagnoses of PTSD,
depressive disorder, polysubstance dependency (cocaine, alcohol and tobacco) in partial
remission and a present GAF score of 45 to 50); Tr. 2204 (June 21, 2010 statement of
problem by Biloxi VA addiction therapist Charlie E. Finkley: “Veteran is addicted to
Alcohol and Cocaine as evidenced by repeated failures to stop usage/drinking. Vet has
experienced multiple psycho-social setbacks directly [related] to usage/drinking.”
(emphasis supplied)); Tr. 2400 (Dr. Damon Robinson’s April 23, 2010 diagnoses of
PTSD, cocaine dependence, alcohol dependence in partial remission, and marijuana
dependence in partial remission, along with a GAF score of 43); Tr. 2412 (Dr. Juliana
Fort’s April 6, 2010 diagnoses of PTSD, depressive disorder, polysubstance dependency
(cocaine, alcohol and tobacco) in partial remission and a present GAF score of 45); Tr.
2429-2430 (Dr. Juliana Fort’s March 4, 2010 diagnoses of PTSD, depressive disorder,
polysubstance dependency (cocaine, alcohol and tobacco) in partial remission and a
present GAF score of 45); Tr. 2444 (Dr. Juliana Fort’s January 19, 2010 diagnoses of
PTSD, depressive disorder, polysubstance dependency (cocaine, alcohol and tobacco)
with a recent relapse on alcohol and a present GAF score of 40).) Moreover, a copious
review of the clinical notes of Taylor’s treating psychiatrist at the Biloxi VA, Dr. Juliana
Fort, does not foreclose the appropriateness of the ALJ’s determination that substance
abuse is a contributing factor material to plaintiff’s disability determination inasmuch
22

as Fort’s clinical notes dated January 19, 2010 prominently note plaintiff’s relapse on
alcohol and that his polysubstance dependency was only in partial remission (Tr. 2444),
and, some two weeks later, on February 2, 2010, the psychiatrist is only able to
cryptically comment that plaintiff is disabled because “he even had difficulty
functioning day to day within the intensive residential program.” (Id. at 1173.)9 Dr.
Fort’s conclusory opinion10 in this regard, of course, betrays no indication that plaintiff’s
substance abuse does not exacerbate his mental impairments. Indeed, Dr. Fort’s
prominent mention of plaintiff’s polysubstance dependency and recent relapse on
alcohol in her “IMPRESSION” section on February 2, 2010, can certainly be read as
suggesting that she was considering both mental and polysubstance impairments in
rendering her opinion. (See Tr. 1174.)11 Accordingly, the undersigned finds no error in
9

This comment by Dr. Fort represents a very myopic view of Taylor’s day-to-day
functioning at the VA Medical Center in White City, Oregon. As previously pointed out, Taylor
worked fulltime—and even overtime—at that facility, at least through December 19, 2009, and
had two GAF scores of 52—indicative of moderate symptoms—in December of 2009.
10

Being conclusory, it could have been rejected out-of-hand by the ALJ. See Lewis,
infra, 125 F.3d at 1440. Moreover, Dr. Fort’s opinion is contradicted by her action, on April 6,
2010, in approving Taylor to participate in the VA’s transitional work experience (“TWE”)
program (Tr. 2414; see also id. (“TWE’s main goal is to return the veteran to community
employment at the end of the ninety day program.” (emphasis supplied)).
11

Fort’s February 2, 2010 diagnosis that plaintiff’s polysubstance dependency was
in partial remission (Tr. 1174) certainly belies plaintiff’s argument that he was not using any
substances in February 2010, as does his June 14, 2010 report to Dr. Angelos Vamvakas that in
January of 2010 he initially began to use alcohol again, “1-2 beers per day[,]” and then “began
using cocaine again in March 2010.” (Tr. 2052 (emphasis supplied); see also Tr. 2341 (“Patient
states he became angry at []his situation and began using initially just alcohol in January—1-2
beers per day. . . . Admits daily use of etoh (only admits 1-2 beers)[.]” (emphasis supplied); Tr.
2121 (on July 19, 2010, plaintiff admitted to drinking 2 to 3 beers a week); Tr. 2360 (Taylor
admitted to drinking a half pint of liquor on June 8, 2010).) Moreover, Taylor’s argument in this
regard cannot withstand scrutiny in light of his admission during the July 6, 2011 hearing that,
on occasion, he still drinks alcohol. (Tr. 55; see also Tr. 2064 (on January 12, 2011, Taylor reported
that he had “’a couple of beers on Dec 24’”); Tr. 2472 (on June 24, 2011, Taylor reported that in
the past year he drank alcohol two to four times a month, 1 to 2 drinks on each day he
consumed alcohol).) Finally, Taylor’s testimony that he last used cocaine in January of 2010 (Tr.
55) is completely destroyed by record evidence that he tested positive for cocaine use on March
8, 2010 and then on June 9, 2010 (Tr. 2053). Accordingly, a reasonable inference from the

(Continued)
23

the ALJ’s notation that since Dr. Fort’s statement was propounded “during a period of
active substance abuse on the part of the claimant” it could not be “considered
applicable to his condition when abstinent.” (Tr. 20.)
Plaintiff also contends that the ALJ erred in rejecting the June 23, 2011 opinions
of Dr. Earnest Hudson, as well as what Taylor considers to be the most important
portions of the November 15, 2010 medical opinions of Dr. John Howell. The Eleventh
Circuit has determined that “the testimony of a treating physician must be given
substantial or considerable weight unless ‘good cause’ is shown to the contrary.” Lewis,
supra, 125 F.3d at 1440.
The ALJ must clearly articulate the reasons for giving less weight to the
opinion of the treating physician, and the failure to do so is reversible
error. We have found “good cause” to exist where the doctor’s opinion
was not bolstered by the evidence, or where the evidence supported a
contrary finding. We have also found good cause where the doctors’
opinions were conclusory or inconsistent with their own medical records.
Id. (internal citations omitted); see also Phillips, supra, 357 F.3d at 1241 (“’[G]ood cause’
exists when the: (1) treating physician’s opinion was not bolstered by the evidence; (2)
evidence supported a contrary finding; or (3) treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records.”). The Eleventh
Circuit has also made clear that “[w]here the ALJ articulated specific reasons for failing
to give the opinion of a treating physician controlling weight, and those reasons are
supported by substantial evidence,“ a reviewing court may not “disturb the ALJ’s
refusal to give the opinion controlling weight.” Carson v. Commissioner of Social Security
Administration, 300 Fed.Appx. 741, 743 (11th Cir. Nov. 21, 2008) (citation omitted).

foregoing evidence would be that Taylor was abusing, at the very least, alcohol in February of
2010.

24

The Court finds that the ALJ articulated good cause for according little weight to
Dr. Hudson’s opinions regarding plaintiff’s mental RFC. On June 23, 2011, Dr. Hudson
noted marked or extreme limitations in all mental activities rated (Tr. 2456-2458) and, as
correctly noted by the ALJ, these “severe” limitations are not supported by the doctor’s
treatment notes and clinical findings (Tr. 20-21). Indeed, on the date Hudson completed
this form his clinical findings consisted of the following: “Mood is ‘OK[.]’ Affect is
mildly constricted. Speech is WNL. Thoughts are structure[d], and free of SI/HI/AH/
and VH. Insight is good. Judgment is good.” (Tr. 2473.) And one month earlier, on May
23, 2011, the staff psychiatrist’s clinical observations were, as follows: “PT IS ALERT, 0
X 3 COOPERATIVE. MOOD: ‘OK’ AFFECT: FULL. SPEECH: NOL VOL, RATE, AND
RHYTHM.

THOUGHTS:

GOAL

DIRECTED.

NO

CURRENT

SI/HI/AH/VH.

INSIGHT: FAIR. JUDGMENT: GOOD.” (Id.) In addition, the noted severe limitations in
all areas are belied by other evidence of record from the first quarter of 2011. (See, e.g.,
Tr. 2483 & 2486 (Taylor’s social worker noted on February 17, 2011, and again on March
21, 2011, that claimant was alert and oriented x4, his thought processes were logical and
goal directed, his mood/affect was pleasant and animated, his insight and judgment
were good, and he denied and displayed no psychotic symptoms); Tr. 2488-2489 (Dr.
Philip L. Cenac, a psychiatrist at the VA in Biloxi, made the following observations:
“TAYLOR . . . is alert, cooperative and pleasant. The veteran is oriented as to person,
place, time and situation. . . . TAYLOR . . . demonstrates no posturing or mannerisms.
The veteran has no tremor of the upper or of the lower extremities. The patient
demonstrates attention by being able to remember five numbers in the forward
direction and four numbers in the reverse direction, a normal result but with effort. The
veteran’s thought processes were examined using the similarities subtest of the mental
status examination and the findings are that the veteran’s thought processes are logical
25

and goal directed, but, he struggles with the more abstract similarities. The veteran is
able to test reality. TAYLOR . . . is not delusional. The veteran is not experiencing
hallucinations. . . . The affect of this veteran is rather well modulated and stable.”).)
Finally, the limitations noted by Dr. Hudson were properly rejected inasmuch as in the
comment section he stated that Taylor’s “IMPAIRMENT PERSISTS DESPITE OVER
ONE YEAR OF ABSTINENCE FROM DRUGS OF ABUSE,” (Tr. 2458), a statement
belied by record evidence, including the claimant’s testimony that he still
“occasionally” consumes alcohol (Tr. 55; see also Tr. 2472 (on June 24, 2011, Taylor
reported that in the past year he drank alcohol two to four times a month, 1 to 2 drinks
on each day he consumed alcohol)).12
With respect to Dr. Howell’s November 15, 2010 PCE and pain assessment (Tr.
1222 & 1224), the ALJ engaged in the following analysis: “I give Dr. Howell’s physical
capacities evaluation significant weight, but I find that there is no objective evidence of
cervical radiculopathy; electromyography was within normal limits. There is thus no
basis for concluding that the claimant cannot perform at least occasional reaching,
handling, fingering, feeling, and pushing and pulling with the left arm. Overall, the
reported severity of symptoms is in excess of objective findings.” (Tr. 21.) The
undersigned can find no error with the ALJ’s analysis in this regard inasmuch as the
ALJ is absolutely right that electromyography was within normal limits (compare Tr.
966, 1240 & 1267-1268 with Tr. 942-943) and the ALJ’s RFC finding that plaintiff is
limited to “no more than occasional reaching, handling, fingering, feeling, pushing

12

As the foregoing “Fort and Hudson” discussion reflects, the mental portion of
the ALJ’s RFC assessment is supported by substantial evidence. (See also Tr. 881-898 & 11951212.)

26

and pulling with the non-dominant arm”13 (Tr. 19 (some emphasis supplied)) is
supported by other evidence in the record (Tr. 602 (normal x-rays of left shoulder on
July 13, 2009); Tr. 642 (July 23, 2009 notation that plaintiff was doing pushups and
walking for exercise); Tr. 673 (June 25, 2009 notation that Taylor planned to visit the
“KT area to build up upper body”); Tr. 682 (June 24, 2009 note that Taylor enjoyed a
wide-range of activities, including fishing, playing pool, and playing basketball); Tr.
931-932 (December 28, 2009 MRI of the left shoulder revealed no evidence of
inflammation and only “[v]ery mild arthrosis at the acromioclavicular joint of
questionable clinical significance.”); Tr. 1463 (November 13, 2009 provocative testing of
the left shoulder was negative); Tr. 2036 (March 15, 2010 normal x-rays of the left
shoulder); Tr. 2268 (June 15, 2010 notation of the activities reportedly engaged in by
Taylor over the course of the last year, including pool and active sports—football and
basketball), including the physical RFC assessments completed by non-examiners Dr.
Martin B. Lahr on September 18, 2009 (Tr. 876), Dr. Robert G. Haas on March 24, 2010
(Tr. 1194), and Dr. Richard Whitney on March 26, 2010 (Tr. 1216).14

13

Taylor is right-handed. (Tr. 2372.)

14

As for Dr. Howell’s clinical assessment of pain (Tr. 1224), the Court agrees with
the ALJ’s determination that the severity of symptoms reported thereon is in excess of objective
findings (Tr. 21), particularly Howell’s notation that “[p]ain is present to such an extent as to be
distracting to adequate performance of daily activities or work.” (Tr. 1224.) This portion of
Howell’s assessment is contradicted not only by the evidence of record just cited, particularly
those notations regarding the significant level of activities in which Taylor engages (see Tr. 642,
682 & 2268), but, as well, by Howell’s own PCE findings that in an 8-hour day Taylor can sit,
stand, and/or walk eight hours each and can occasionally lift and carry 20 pounds and
frequently lift and carry 10 pounds (Tr. 1222) and the notations in the record that Taylor is
capable of working, either in the general community (Tr. 2057 (“Mr. Taylor . . . [h]as been trying
to follow-up with possible job sources, such as the Alabama Career Center, but was told he was
‘untrainable.’ . . . We focused on problem solving strategies including how he might find a job
on a bus line. He lives in Theodore and can access a WalMart, numerous restaurants and
businesses. Plans to go job hunting in that area and we worked on helping him identify positive
statements to make about himself and scripts for job searching.”), or as part of the VA’s paid
transitional work experience (“TWE”) program (compare Tr. 2366 (June 8, 2010 social worker

(Continued)
27

Plaintiff’s final argument is that the ALJ committed reversible error in failing to
articulate or apply this Circuit’s three-part pain standard. (See Doc. 16, at 14-15.) During
oral argument, plaintiff’s counsel modified his argument somewhat by focusing upon
the ALJ’s failure to discuss those factors identified in §§ 404.1529 and 416.929 of the
Commissioner’s regulations.
The Eleventh Circuit has consistently and often set forth the criteria for
establishing disability based on testimony about pain and other symptoms. See, e.g.,
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citations omitted); Holt v.
Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991).
[T]he claimant must satisfy two parts of a three-part test showing: (1)
evidence of an underlying medical condition; and (2) either (a) objective
medical evidence confirming the severity of the alleged pain; or (b) that
the objectively determined medical condition can reasonably be expected
to give rise to the claimed pain.15 If the ALJ discredits subjective
testimony, he must articulate explicit and adequate reasons for doing so.
Failure to articulate reasons for discrediting subjective testimony requires,
as a matter of law, that the testimony be accepted as true.

note that Taylor was “able to work and ha[d] been a CNA and housekeeper[]”) with Tr. 2385
(April 29, 2010 notation that Taylor would be participating in TWE as a sanitation worker
trainee, a job for which he did not request any work accommodations or limitations) and Tr.
2223 (“Mr. Taylor has participate in 163 hours . . . as a Sanitation Worker earning a total of
$1,300 for his participation.”)).
Howell’s pain assessment also reflects the opinion that “lifting overhead on [the] left”
would greatly increase Taylor’s pain to such a degree as to cause distraction from tasks or total
abandonment of task. (Tr. 1224.) The ALJ’s RFC assessment, as well as both hypotheticals posed
to the vocational expert (“VE”), specifically account for Taylor’s inability to perform overhead
reaching (compare Tr. 19 (“he is unable to perform overhead reaching”) with Tr. 64 & 67 (both
hypotheticals posed by the ALJ assumed no overhead reaching)) and, therefore, there is no
reason to suspect that the jobs identified by the VE would cause Taylor to experience distracting
pain leading to total abandonment of tasks.
15

“Medical history and objective medical evidence such as evidence of muscle
atrophy, reduced joint motion, muscle spasm, sensory and motor disruption, are usually
reliable indicators from which to draw a reasonable conclusion about the intensity and
persistence of pain and the effect such pain may have on the individual’s work capacity.” SSR
88-13.

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Wilson, supra, at 1225 (internal citations omitted; footnote added).
“20 C.F.R. § 404.1529 provides that once such an impairment is established, all
evidence about the intensity, persistence, and functionally limiting effects of pain or
other symptoms must be considered in addition to the medical signs and laboratory
findings in deciding the issue of disability.” Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir.
1995) (emphasis supplied). In other words, once the issue becomes one of credibility
and, as set forth in SSR 96-7p, in recognition of the fact that a claimant’s symptoms can
sometimes suggest a greater level of severity of impairment than can be shown by
objective medical evidence alone, the adjudicator (ALJ) in assessing credibility must
consider in addition to the objective medical evidence the other factors/evidence set
forth in 20 C.F.R. § 404.1529(c). More specifically, “[w]hen evaluating a claimant’s
subjective symptoms, the ALJ must consider the following factors: (i) the claimant’s
‘daily activities; (ii) the location, duration, frequency, and intensity of the [claimant’s]
pain or other symptoms; (iii) [p]recipitating and aggravating factors; (iv) the type,
dosage, effectiveness, and side effects of any medication the [claimant took] to alleviate
pain or other symptoms; (v) treatment, other than medication, [the claimant] received
for relief . . . of pain or other symptoms; and (vi) any measures the claimant personally
used to relieve pain or other symptoms.’” Leiter v. Commissioner of Social Security
Administration, 377 Fed.Appx. 944, 947 (11th Cir. May 6, 2010) (emphasis supplied),
quoting 20 C.F.R. §§ 404.1529(c)(3); see also SSR 96-7p (“In recognition of the fact that an
individual’s symptoms can sometimes suggest a greater level of severity of impairment
than can be shown by the objective medical evidence alone, 20 CFR 404.1529(c) and
416.929(c) describe the kinds of evidence . . . that the adjudicator must consider in

29

addition to the objective medical evidence when assessing the credibility of an
individual’s statements[.]” (emphasis supplied)).
In this case, the ALJ clearly recognized that plaintiff’s impairments meet the pain
standard (see Tr. 20 (“[T]he undersigned finds that the claimant’s medically
determinable impairments could reasonably be expected to produce the alleged
symptoms[.]”)) yet found that his subjective pain complaints were not entirely credible
(id. (“[T]he claimant’s statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity assessment[.]”); see also id. at 21 (“The claimant
reports chronic left-sided neck and shoulder pain. Left shoulder x-rays have been
normal and magnetic resonance imaging reveals only minor degenerative change. On
the other hand, cervical spine x-rays demonstrate moderately severe degenerative disc
disease at C5-6 and C6-7. Nevertheless, the claimant has sought only intermittent
treatment despite extensive access to medical care. He has reported good relief with a
TENS unit and has not attempted to obtain further work-up or treatment for his cervical
disc disease. . . . Overall, the reported severity of symptoms is in excess of objective
findings.”).16 However, the Court need agree with plaintiff that the ALJ in this case, in
making her credibility finding, see Foote, supra, at 1561, considered only the objective
medical evidence of record and did not specifically consider the other factors/evidence
set forth in 20 C.F.R. § 404.1529(c) (see Tr. 20-21). Any error by the ALJ in this regard
though is harmless inasmuch as the record in this case is replete with evidence that
Taylor engages in a wide range of daily activities (see, e.g., Tr. 462, 642, 682, 2223 & 2268)
16

So, contrary to plaintiff’s broader argument in his brief, the ALJ certainly
articulated and applied at least a portion of this Circuit’s three-part pain standard.

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and the pain medication Taylor uses, Naproxen (Tr. 266), is indicated for the relief of
mild to moderate pain, compare http://www.medicinenet.com/naproxen/article.html
(last visited December 5, 2013) with http://www.drugs.com/cons/naproxen.html (last
visited December 5, 2013). In addition, the ALJ’s RFC assessment took into account that
Taylor can perform no overhead reaching (Tr. 19) which is the one activity that is likely
to aggravate his neck and left shoulder pain (see Tr. 1224 (“lifting overhead on [the] left”
increases pain to such a degree as to distraction from tasks or total abandonment of
tasks)). Finally, just two weeks prior to his July 6, 2011 hearing—specifically on June 24,
2011—plaintiff reported no pain (Tr. 2471), and there is at least one indication in the
record that Taylor is not above exaggerating the extent of his pain (see Tr. 1463 & 1464
(“Provocative testing was negative, no complaint of pain. . . . When I asked the Veteran
why I could move his arm but he could not, he donned his jacket with smooth, supple
motions of shoulder and stated he did not need to come for therapy any longer.”)).
Thus, any failure by the ALJ to specifically consider the § 404.1529—and § 416.929—
factors was harmless error.
Based upon the foregoing, this Court finds that the ALJ’s determination that
Taylor’s substance abuse is a contributing factor material to his disability is supported
by substantial evidence. The fact that some of the evidence, all of which the ALJ
considered in her lengthy opinion, might suggest otherwise is of no moment given that
substantial evidence supports the ALJ’s determination in this regard.17
17

The plaintiff makes no further arguments and since the ALJ’s RFC assessment in
this case, based on the claimant stopping his substance use (see Tr. 19), see Carson, supra, 300
Fed.Appx. at 743 (“the ALJ has the ultimate responsibility to assess a claimant’s residual
functional capacity[]”), is supported by substantial evidence and the vocational expert (“VE”)
identified jobs which exist in significant numbers in the national economy that an individual
with such an RFC can perform (see Tr. 64-67), the decision to deny benefits in this case was
appropriate.

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CONCLUSION
It is ORDERED that the decision of the Commissioner of Social Security denying
plaintiff benefits be affirmed.
DONE and ORDERED this the 9th day of December, 2013.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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