Brown v. Colvin

Filing 21

MEMORANDUM AND OPINION that the Secretary's decision be AFFIRMED, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), and that this action be DISMISSED. Judgment will be entered by separate Order.. Signed by Magistrate Judge Bert W. Milling, Jr on 10/24/2014. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHERI L. BROWN,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

CIVIL ACTION 14-0164-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 1383(c)(3), Plaintiff
seeks judicial review of an adverse social security ruling which
denied a claim for Supplemental Security Income (hereinafter
SSI) (Docs. 1, 13).

The parties filed written consent and this

action has been referred to the undersigned Magistrate Judge to
conduct all proceedings and order the entry of judgment in
accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc.
19).

Oral argument was waived in this action (Doc. 20).

Upon

consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be AFFIRMED and that this action be DISMISSED.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

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Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

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

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

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205 (D.
Md. 1982).
At the time of the administrative hearing, Brown was fortyeight years old, had completed a high school education (Tr. 52),
and had previous work experience as a cashier and waitress (Tr.
97).

In claiming benefits, Plaintiff alleges disability due to

degenerative disk disease in the cervical and lumbar spine;
cervical spondylosis; tension headaches; depression with
generalized anxiety; mood disorder due to general medical
condition (reported chronic pain); opioid dependence
(iatrogenic); alcohol dependence (partial remission); and
history of delirium secondary to benzodiazepine and opioid
withdrawal (Doc. 13 Fact Sheet).
The Plaintiff filed a protective application for SSI on
February 24, 2011 (Tr. 168-75; see also Tr. 25).

Benefits were

denied following a hearing by an Administrative Law Judge (ALJ)
who determined that if Brown stopped her substance abuse, she
would be capable of performing specific jobs (Tr. 25-54).

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Plaintiff requested review of the hearing decision (Tr. 18) by
the Appeals Council, but it was denied (Tr. 1-6).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.

Specifically, Brown alleges

the single claim that the ALJ improperly determined that she
would not be disabled if she discontinued her drug use (Doc.
13).

Defendant has responded to—and denies—this claim (Doc.

14).
The Court notes, at the outset of this discussion, that the
Contract with America Advancement Act of 1996 modified the
Social Security laws 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
Doughty v. Apfel, 245 F.3d 1274, 1275 (11th Cir.

disabled.”

2001); see 42 U.S.C. § 423(d)(2)(C) (1997).

The Doughty Court

held that the claimant “bears the burden of proving whether
[she] would be disabled if [s]he stopped using drugs or
alcohol.”

Doughty, 245 F.3d at 1275-76.

Under the social

security regulations, an ALJ who has determined that a claimant
is disabled and suffers drug addiction or alcoholism must then
“determine whether [the] drug addiction or alcoholism is a
contributing factor material to the determination of
disability.”

20 C.F.R. § 404.1535(a) (2006).

In reaching this

determination, “[t]he key factor . . . is whether the claimant

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would still be found disabled if he stopped using drugs or
alcohol.”

Doughty, 245 F.3d at 1279 (citing 20 C.F.R. §

404.1535(b)(1)).
In his decision, the ALJ determined that Brown met the
requirements for Disability Listings 12.04 (Affective
Disorders), 12.06 (Anxiety Related Disorders), and 12.09
(Substance Addition Disorders) (Tr. 31).

After summarizing the

record evidence relative to Plaintiff’s use of medications and
alcohol and stating what weight he gave that evidence (Tr. 3236), the ALJ concluded that if Brown “stopped her substance
abuse, she would no longer have an impairment or combination of
impairments that meets or medically equals” all of the
requirements for any Listing (Tr. 37).

The ALJ went on to find

that Brown would “have the residual functional capacity to
perform light work . . . with certain non-exertional
restrictions;” those restrictions were specifically set out by
the ALJ (Tr. 38-39).

The ALJ then summarized the balance of the

evidence and explained what weight he gave it (Tr. 41-51).
After determining that Plaintiff was not capable of returning to
her past relevant work, even if she stopped her substance abuse
(Tr. 51), the ALJ credited the testimony of a Vocational Expert
to conclude that there were specific jobs that Brown could
perform (Tr. 52-53).
In bringing this action, Brown admits that although she may

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be “physically dependent on [her] medications,” “there is no
evidence in the file that [she] was taking her prescription
medication in any fashion other than it was prescribed” (Doc.
13, p. 3).

The Court notes that Defendant admits that “drug and

alcohol abuse does not include ‘[a]ddiction to, or use of,
prescription medications taken as prescribed, including
methadone and narcotic pain medications’” (Doc. 14, p. 9)
(quoting Social Security Ruling 13-2p, 2013 WL 621536, at *3)
(emphasis added by Defendant).

However, the Government argues

that Brown was not taking her medications as prescribed (Doc.
14, pp. 9-10).
In his opinion, the ALJ noted that the medical records
reported Plaintiff’s overmedication and the need to decrease the
amount of prescription drugs that she was taking (Tr. 36).
Specifically, on October 1, 2010, Dr. Robert Calin, at
Springhill Medical Center, stated the following in setting out
Brown’s plan of treatment:
medications.

“She is stable on her present

We are going to assume those.

We are going to try

to taper down off the methadone, Lortab-Soma combination as we
feel she is overmedicated” (Tr. 258).

On June 7, 2012, Brown

was admitted to Providence Hospital following an accidental
overdose of “a whole slew of narcotics and centrally acting
drugs including methadone, Trileptal, diazepam, and oxycodone in
large doses.

She came in after being found unresponsive by

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friends;” “she was basically comatose on admission” (Tr. 405;
Tr. 406; see generally Tr. 405-34).

The first of several

discharge diagnoses for that hospitalization was iatrogenic1
overdose (Tr. 406).

Examination notes from Altapointe Health

Systems report that, several days after her medication overdose
discharge, Brown was experiencing “[p]aranoia (believes there
are news people outside her bathroom window ‘they’re out to get
me’; visual hallucinations (believes she sees other people in
the house; not sleeping due to being scared of what’s going on
around her and fears having another seizure withdrawing from
Methadone, benzo’s” (Tr. 460).

Altapointe’s one treatment plan

short term goal was for Plaintiff to “reduce dependence on and
abuse of pain medications from daily to no abuse for three
months as evidenced by integrating and implement [sic] new
mental, somatic, and behavioral ways of managing pain (e.g.,
relaxation, distraction, activity scheduling) and only taking
medications as prescribed” (Tr. 461).

This was to be

accomplished by, among other things, medication monitoring (Tr.
462).

As found by the ALJ, records several months later noted

that Plaintiff had not been weaned from her drugs and had, in
fact, taken Haldol after it was discontinued and was receiving
“Methadone, Oxycodone, and Soma from her primary care physician”

1Iatrogenic effect, “a Greek term meaning ‘brought forth by the

healer,’ is any consequence of medical treatment or advice to a
patient.” http://en.wikipedia.org/wiki/Iatrogenesis

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(Tr. 35; cf. Tr. 440, 442).
The ALJ also noted that the medical records reported, at
the time of the Altapointe intake assessment, that Plaintiff’s
“stepdaughter reported that her father now administers the
claimant’s medications on a daily basis, keeps the rest locked
up, and only gives her 60 mg of the 80 mg of Methadone she is
prescribed a day” (Tr. 36; cf. Tr. 451).

The ALJ also noted

that Brown had admitted to medical personnel that she had taken
more medications than prescribed (Tr. 36; cf. Tr. 451).

The

Court notes that Plaintiff has not offered any rebuttal to these
particular findings by the ALJ (see Doc. 13).
The Court reiterates that the Doughty Court held that the
claimant “bears the burden of proving whether [she] would be
disabled if [s]he stopped using drugs or alcohol.”
F.3d at 1275-76.

Doughty, 245

The Court finds that the ALJ has relied on

substantial evidence supporting his conclusion that Brown has an
addiction that renders her disabled, but that if she stopped
abusing drugs she would, in fact, be able to perform specified
jobs.

The Court further finds that Plaintiff has not

demonstrated that her disability would continue to exist if she
followed her prescribed medical regimen.
Brown has raised a single claim in bringing this action.
That claim lacks merit.

Upon consideration of the entire

record, the Court finds "such relevant evidence as a reasonable

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mind might accept as adequate to support a conclusion."
Perales, 402 U.S. at 401.

Therefore, it is ORDERED that the

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

Judgment will be entered by separate Order.

DONE this 24th day of October, 2014.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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