Lee v. Colvin

Filing 18

MEMORANDUM OPINION AND ORDER entered. After considering the administrative record, the memoranda of the parties, and argument, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out in Order. Signed by Magistrate Judge Bert W. Milling, Jr on 11/23/2015. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NOAH J. LEE,

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

CIVIL ACTION 15-0177-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g), Plaintiff seeks
judicial review of an adverse social security ruling denying a
claim for disability insurance benefits (Docs. 1, 11).

The

parties filed written consent and this action has been referred
to the undersigned Magistrate Judge to conduct all proceedings
and order judgment in accordance with 28 U.S.C. § 636(c),
Fed.R.Civ.P. 73, and S.D.Ala. Gen.L.R. 73(b) (see Doc. 15).
Oral argument was heard on November 23, 2015.

After considering

the administrative record, the memoranda of the parties, and
oral argument, 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).

Substantial

evidence 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, Lee was twentynine years old, had completed a high school equivalency
education (see Tr. 24; Doc. 11 Fact Sheet), and had previous
work experience as a dishwasher, a roustabout, and a
construction worker (Tr. 65, 76).

Plaintiff alleges disability

due to Bipolar Disorder, Schizoaffective Disorder, Major
Depressive Disorder with Psychotic Features, Chronic Cannabis
Abuse, and Chronic Poly-Substance Dependence (Doc. 11 Fact
Sheet).
The Plaintiff protectively applied for disability insurance
benefits on September 27, 2012, asserting a disability onset
date of December 1, 2011 (Tr. 20, 181-82).

An Administrative

Law Judge (ALJ) denied benefits after determining that Lee met
disability Listing requirements for Affective Disorders and
Substance Addiction Disorders; the ALJ further found that if
Plaintiff discontinued his drug use, he would be capable of
working at specified jobs (Tr. 20-40).

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Plaintiff requested

review of the hearing decision (Tr. 7-9), but the Appeals
Council denied it (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Lee alleges

(1) The ALJ did not properly consider the opinions and

diagnoses of his treating physicians; (2) the evidence does not
support the ALJ’s residual functional capacity (hereinafter RFC)
finding; and (3) the ALJ did not properly develop the record
(Doc. 11).

Defendant has responded to—and denies—these claims

(Doc. 12).

The relevant evidence of record follows.

On August 22, 2011, Plaintiff went to West Florida Hospital
with “the shakes,” stating that he wanted to stop using drugs;
his drug screen was positive for cannabinoids, benzodiazepines,
and opiates (Tr. 475-93).

He was discharged the next day.

On August 26, Plaintiff went to Lakeview Center, saying
that he was suicidal after taking himself off of methadone; he
had mood swings, was depressed, anxious, paranoid, and
exhibiting obsessive behavior (having to touch everything with
his finger) (Tr. 511-15).

The Examiner noted Lee was oriented

in four spheres, was of average intelligence, and had fair
judgment.

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On February 2, 2012, Plaintiff was seen at Tri County
Medical Center for chronic, mild lumbar back pain, radiating
occasionally to the neck; the Doctor noted scoliosis, by
history, and anxiety and prescribed Tramadol1 and Xanax2 (Tr.
349-50).
On April 2, Lee was admitted, for one night, to Atmore
Community Hospital for a drug overdose; he tested positive for
benzodiazepines, methamphetamines, amphetamines, and
cannabinoids (Tr. 307-21).

Plaintiff was noted to have a

history of bipolar disorder, paranoid schizophrenia, and social
anxiety.
On April 5, Lee went to Southwest Alabama Behavioral Health
Care for individual therapy; he was anxious, delusional, sad,
and suicidal with homicidal thoughts (Tr. 333-37, 343; see
generally Tr. 324-43).

Plaintiff had five more sessions through

August 31, 2012 during which he voiced paranoia, anger, and
thoughts of hurting someone; he was depressed and smoked
marijuana to calm his nerves (Tr. 338-42).
On May 1, Plaintiff was seen at Tri County to get his
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1Tramadol “is indicated for the management of moderate to
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moderately severe chronic pain in adults who require around-the-clock
treatment of their pain for an extended period of time.” Error! Main
Document Only.Physician's Desk Reference 2520 (66th ed. 2012).
2Error!%Main%Document%Only.Xanax is a class four narcotic used for
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the management of anxiety disorders. Physician's Desk Reference 2294
(52nd ed. 1998).

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prescriptions refilled and for anxiety and abnormal weight loss
(Tr. 347-48).

On September 4, 2012, Lee had normal range of

motion (hereinafter ROM), with no noted joint tenderness or
swelling; in addition to refilling his Xanax, the Doctor
prescribed Flexeril,3 an NSAID, and an antidepressant (Tr. 34546).
On September 12, Lee was admitted to Baptist Hospital for
six nights for depression and an overdose of multiple
medications requiring intubation; he reported being anxious,
paranoid, and having auditory hallucinations (Tr. 352-93).
Plaintiff “was feeling up and down when he did not take his
medications” (Tr. 353).

A drug screen was positive for

cannabinoids and benzodiazepines.

At discharge, Lee was in no

acute distress, had no formal thought disorder, and denied being
suicidal, homicidal, or hopeless; he was prescribed an
antidepressant and encouraged to follow-up with psychiatric
protocols.
On September 19, Plaintiff went to Atmore Community
Hospital Emergency Room after having what was thought to be a
seizure as a reaction to one of his medications (Tr. 397-412,
621-29).

He was given an antihistamine, monitored, and

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
3Error!%Main%Document%Only.Flexeril is used along with “rest and
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physical therapy for relief of muscle spasm associated with acute,
painful musculoskeletal conditions.” Physician's Desk Reference 145557 (48th ed. 1994).

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released.
On October 3, 2012, Lee went to Lakeview Center and was
evaluated for his thoughts of committing suicide and homicide
that was found to be low risk (Tr. 414-16, 633).
On October 23, psychiatric advanced registered nurse
practitioner (hereinafter ARNP) Cheryl Pawloski examined
Plaintiff, finding him irritable and having psychomotor
agitation; he became angry when she indicated that he needed to
quit taking the Xanax and threatened to find another provider
(Tr. 417-19, 634-35).

On November 2, Dr. Heather Rohrer

examined Lee and prescribed Mobic,4 Valium,5 and Zyprexa6 (Tr.
423-24, 636-37).

On December 18, Plaintiff reported taking only

his prescribed medications; the ARNP reported that he was alert,
fully oriented, and that his thought process was goal-directed
(Tr. 425-26, 638-39).

On January 21, 2013, Dr. Cynthia

Javellana reported that Lee was being admitted, from an
Emergency Room through the Baker Act, to Lakeview Center after
indicating that “he was very depressed, stressed out, and was
having thoughts of suicide” (Tr. 436, 499-502; see generally Tr.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
4Error!%Main%Document%Only.Mobic is a nonsteroidal anti-inflammatory
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drug used for the relief of signs and symptoms of osteoarthritis and
rheumatoid arthritis. Physician's Desk Reference 855-57 (62nd ed.
2008).
5Error!%Main%Document%Only.Diazepam, better known as Valium, is a
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class IV narcotic is used for treatment of anxiety. Physician's Desk
Reference 2765-66 (62nd ed. 2008).
6Error!%Main%Document%Only.Zyprexa is used for the “management of the
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manifestations of psychotic disorders.” Physician's Desk Reference
1512 (52nd ed. 1998).

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436-38).

Plaintiff admitted to taking drugs and drinking the

previous weekend.

Two days later, Lee admitted feeling better

and thinking better; he was discharged, with adequate insight
and judgment, with a prescription for BuSpar7 (Tr. 439-40).

On

January 29, 2013, Pawloski noted he was oriented in four spheres
and was goal-directed; he had fair insight and judgment
generally, but it was “very limited around his substance use and
the seriousness of his mental illness” (Tr. 441; see generally
Tr. 441-42).

Vistaril8 was prescribed.

On February 26,

Plaintiff reported feeling anxious but that he was not using any
substances (Tr. 443-44).
On March 27, Lee went to the Atmore Community Hospital
following a suicide attempt, his third, by taking twelve
Zyprexa, twelve anti-depressants, a half bottle of Nyquil, and
six Restoril9 (Tr. 597-606).

His drug screen was positive for

benzodiazepines, cocaine, and PCP.

Plaintiff checked out of the

hospital the next day against medical advice.
On March 29, Lee returned to Lakeview Center complaining of
depression, auditory hallucinations, and feeling worthless,
hopeless, helpless, and suicidal; he had smoked Marijuana and
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
7BuSpar is used to treat anxiety and irritability.
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See
http://www.drugs.com/buspar.html!
8Vistaril is used to treat anxiety and tension and may be used to
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control nausea and vomiting.

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treatment of insomnia.
1998). !

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http://www.drugs.com/vistaril.html
is used for the short-term
Physician's Desk Reference 1894-96 (52nd ed.

9Error!%Main%Document%Only.Restoril

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Spice the night before (Tr. 432-35, 640-644).

The Examiner

noted that Plaintiff had depressed mood and affect, poor
judgment and insight, and fair attention and concentration.
Thought content was depressed, angry, paranoid, and anxious
while his thought process was delusional and circumstantial with
auditory hallucinations.

The next day, he was oriented in four

spheres with limited insight and judgment; Lee expressed hatred
toward random people, voicing ways of hurting them (Tr. 445-49,
645-46).

Seroquel10 was substituted for the Zyprexa.

On April

4, Plaintiff was oriented in three spheres, but felt anxious and
depressed, but not suicidal or homicidal; insight and judgment
continued to be limited (Tr. 450-51).

He was discharged with a

prescription for Thorazine11 and was to follow up with
psychiatric treatment.
On June 10, Plaintiff was admitted to West Florida Hospital
for three nights after being off of his medications for two
months; a drug screen was positive for cannabinoids and
benzodiazepines (Tr. 521-53).

At admission, Lee admitted being

depressed and sad; Plaintiff began taking his medications while
hospitalized and his depression, anxiety, and sleep improved.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
10Seroquel is used in the treatment of schizophrenia.
!

Error! Main
Document Only.Physician's Desk Reference 670-72 (62nd ed. 2008).
11Thorazine is an antipsychotic medication used to treat mood
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disorders, the manic phase of manic-depressive disorder, and anxiety.
See http://www.drugs.com/cdi/thorazine.html!

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Discharge medications were BuSpar, Celexa,12 and Thorazine.
On June 14, 2013, the day after being discharged, Lee
returned to the Emergency Room at West Florida Hospital and was
admitted to the Hospital for depression, suicidal ideation, and
auditory hallucinations; he reported that he had not filled his
prescriptions, so had not been taking them, after his previous
discharge (Tr. 554-96).

Plaintiff was discharged after three

days in the hospital in improved condition.
On July 16, Lee reported to ARNP Pawloski that he was sad,
depressed, irritable, and anxious; he reported that he was not
smoking Marijuana and that that had helped (Tr. 452-53, 647-48).
Plaintiff also reported that he was “so much better on his
medications” (Tr. 452).

He was oriented in four spheres with

fair insight and judgment.

Depakote13 was added to Lee’s medical

regimen; therapy was encouraged.

On August 27, Plaintiff stated

that his medications seemed to be helping him sleep; he was
somewhat sleepy and was not clear of thought (Tr. 630-32).
Judgment was good and judgment was fully intact.
On September 6, Plaintiff went to Atmore Community Hospital
ER to be treated for priapism (Tr. 608-20).

He was transferred

to Mobile Infirmary where he reported that he did not drink
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
12Celexa is used in treating depression.
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Error! Main Document
Only.Physician's Desk Reference 1161-66 (62nd ed. 2008).!
13Error!%Main%Document%Only.Depakote is used for the treatment of
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seizures. Physician's Desk Reference 428-34 (52nd ed. 1998).

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alcohol or use illicit drugs; he was treated with corporal
irrigation and an injection with a decongestant (Tr. 649-55).
This concludes the Court’s review of the evidence.
In bringing this action, Lee first asserts that the ALJ did
not properly consider the opinions and diagnoses of his treating
physicians.

Plaintiff references Drs. Messina, Javellana, and

Narahari (Doc. 11, pp. 4-5).

It should be noted that "although

the opinion of an examining physician is generally entitled to
more weight than the opinion of a non-examining physician, the
ALJ is free to reject the opinion of any physician when the
evidence supports a contrary conclusion."

Oldham v. Schweiker,

660 F.2d 1078, 1084 (5th Cir. 1981);14 see also 20 C.F.R. §
404.1527 (2013).!
The ALJ faithfully reviewed the evidence of record,
including that of the physicians on which Lee brings this claim.
After doing so, the ALJ made the following findings with regard
to the conclusions of those medical sources:
As for the opinion evidence, the
undersigned has assigned some evidentiary
weight to information contained in the
hospital records and reports and in the
mental health treatment records regarding
the claimant’s psychiatric impairments and
his ongoing polysubstance abuse. Some
evidentiary weight has been assigned to Dr.
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14The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d
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1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent decisions
of the former Fifth Circuit rendered prior to October 1, 1981.

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Javellana’s and Dr. Narahari’s descriptions
of the claimant’s major depressive disorder
as “moderate” as stated in the Lakeview
Center treatment records (Exhibit 10F).
There are no other treating or examining
medical source opinions regarding the nature
and severity of the claimant’s diagnosed
mental impairments.
(Tr. 32).
Plaintiff has asserted that the evidence does not support
the ALJ’s RFC finding.15

The Court notes that the ALJ is

responsible for determining a claimant’s RFC.
404.1546 (2015).

20 C.F.R. §

That decision cannot be based on “sit and

squirm” jurisprudence.
(11th Cir. 1984).

Wilson v. Heckler, 734 F.2d 513, 518

However, the Court also notes that the social

security regulations state that Plaintiff is responsible for
providing evidence from which the ALJ can make an RFC
determination.

20 C.F.R. § 404.1545(a)(3).

In his decision, the ALJ found that Plaintiff’s impairments
met the requirements of Listings 12.04 and 12.09 for Affective
Disorders and Substance Addiction Disorders, respectively (Tr.
30).

However, the ALJ went on to find that if Lee stopped his

substance abuse, he would not still have an impairment or
combination of impairments that would meet these Listing
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15The Court acknowledges that it has not yet discussed the
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substance of Lee’s claim regarding the opinions and conclusions of his
treating physicians. However, Plaintiff’s first claim was subsumed in
this second claim and the Court chooses to address them together.

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requirements (Tr. 33).

Then the ALJ fashioned an RFC that set

out Lee’s capabilities, finding him capable of performing
specific jobs (Tr. 35-39).
In bringing his first two claims, Plaintiff seemingly
forgets that the medical record consists, almost exclusively, of
his multiple substance abuse problems.

During those rare

periods of sobriety when Plaintiff following his prescribed
medication regimen, Lee acknowledged he was doing much better
(see Tr. 443, 452, 638).

Those periods, however, were short-

lived and are only barely reflected in the record.

While

treating physicians indicated debilitating mental impairments,
those diagnoses were given while Plaintiff was abusing alcohol
and drugs and failing to follow their advice.

As noted by the

ALJ, “[t]here have been no credible medical opinions in the
record which indicate that the claimant has been disabled from
all work or even has had limitations more stringent than those
determined in this decision, absent drug abuse” (Tr. 36).
finding remains unrefuted.16

This

Plaintiff is reminded that he

“bears the burden of proving that the substance abuse is not a
contributing factor material to the disability determination.”
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16The Court notes Lee’s concern that the ALJ did not state the
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weight given various Doctor’s GAF scores (Doc. 11, p. 5). GAF scores
have no “direct correlation to the severity requirements of the mental
disorders listing.” See 65 Fed.Reg. 50746, 50764-65 (Aug. 21, 2000).
The scores are even less reliable in light of Lee’s self-abuse. The
Court further fails to understand Plaintiff’s concern that there is no
“opinion from a non-examining reviewing physician” (Doc. 11, p. 5).

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Doughty v Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001).

Lee’s

claims are without merit.
Plaintiff next claims that the ALJ did not properly develop
the record.

More specifically, Lee argues that the ALJ should

have ordered a consultative psychological examination (Doc. 11).
The Eleventh Circuit Court of Appeals has required that "a full
and fair record" be developed by the ALJ even if the claimant is
represented by counsel.
(11th Cir. 1981).

Cowart v. Schweiker, 662 F.2d 731, 735

However, the

ALJ “is not required to order a

consultative examination as long as the record contains
sufficient evidence for the [ALJ] to make an informed decision.”
Ingram v. Commissioner of Social Security Administration, 496
F.3d 1253, 1269 (11th Cir. 2007) (citing Doughty, 245 F.3d at
1281).
The Court notes finds no merit in this claim.

The more-

than-three-hundred-pages of medical evidence in this record
consists, almost exclusively, of medical personnel in the mental
health arena counseling Plaintiff to quit taking drugs, quit
drinking, take the medications prescribed, and follow through
with the various therapies available to help him with his
psychological/psychiatric problems.

Adding another voice to the

choir would be of no benefit under these circumstances.
Plaintiff has raised three different claims in bringing
this action.

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All are without merit.

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Upon consideration of the

entire record, the Court finds "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion."

Perales, 402 U.S. at 401.

Therefore, it is

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

Judgment will be entered by

separate Order.
DONE this 23rd day of November, 2015.

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