Selph v. Social Security Administration
Filing
13
ORDER affirming the decision of the Commissioner. The ALJ made no legal error and the Court denies 2 Complaint. Signed by Magistrate Judge Jerome T. Kearney on 10/7/2013. (jak)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
Roye E. Selph
Plaintiff
Cause No. 3: 13‐CV‐008‐JTK
Carolyn W. Colvin, Acting Commissioner,
Social Security Administration
Defendant
ORDER AFFIRMING THE COMMISSIONER’S DECISION
Roye E. Selph seeks judicial review of the denial of his application for disability
insurance benefits and supplemental security income. Selph returned to the United
States in June 2008, after working for a government contractor in Iraq for over two
years.1 Seven months later, Selph underwent involuntary in‐patient treatment for
psychotic disorder, cocaine abuse, and alcohol abuse.2 After a week of treatment, the
hospital discharged Selph with anti‐psychotic medication and instructions about the
importance of treatment.3 Selph received out‐patient treatment off and on for the next
14 months. Then, he applied for disability benefits and alleged disability beginning
with his return from Iraq.4 He based disability on his “mental condition.”
1
SSA record at pp. 31‐32 & 121‐22.
2
Id. at p. 192.
3
Id. at p. 194.
4
Id. at pp. 101, 105 & 130.
The Commissioner’s decision. After considering the application, the
Commissioner’s ALJ determined Selph has severe impairments — psychotic disorder
and polysubstance abuse5 — but he can work where interpersonal contact is incidental
to the work performed, e.g., assembly work; complexity of tasks is learned and
performed by rote, with few variables and little judgment; and supervision required is
simple, direct and concrete.6 Because a vocational expert identified available work,7 the
ALJ determined Selph is not disabled under the Social Security Act and denied the
application.8
After the Commissioner’s Appeals Council denied a request for review,9 the
ALJ’s decision became a final decision for judicial review.10 Selph filed this case to
challenge the decision. In reviewing the decision, the court must determine whether
5
Id. at p. 12.
6
Id. at pp. 14‐15.
7
Id. at pp. 46‐47 (identifying production assembler, sorter of agricultural
products, and assembler of small products).
8
Id. at pp. 20‐21.
9
Id. at p. 1.
10
See Anderson v. Sullivan, 959 F.2d 690, 692 (8th Cir. 1992) (stating that “the Social
Security Act precludes general federal subject matter jurisdiction until administrative
remedies have been exhausted” and explaining that Commissioner’s appeal procedure
permits claimants to appeal only final decisions).
2
substantial evidence supports the decision and whether the ALJ made a legal error.11
Selph’s ability to work. Selph maintains the ALJ failed to satisfy the
Commissioner’s step‐five burden — to show that work exists that he can do. Although
the argument is framed in terms of step five, Selph’s reasoning addresses the ALJ’s step‐
four determination about his ability to work.12 In actuality, Selph challenges the
determination that he can work. The distinction is important because Selph had the
burden at step four; the Commissioner had the burden at step five.13
Because Selph does not challenge the underlying premise for the step‐five
determination — the vocational expert’s identification of available work — the question
before the court is whether substantial evidence shows Selph can work within the
11
See 42 U.S.C. § 405(g) (requiring district court to determine whether
Commissioner’s findings are supported by substantial evidence and whether
Commissioner conformed with applicable regulations); Long v. Chater, 108 F.3d 185, 187
(8th Cir. 1997) (“We will uphold the Commissioner’s decision to deny an applicant
disability benefits if the decision is not based on legal error and if there is substantial
evidence in the record as a whole to support the conclusion that the claimant was not
disabled.”).
12
Selph’s reasons included: (1) my symptoms are more severe than the ALJ
found, (2) the ALJ failed to consider whether my non‐compliance resulted from mental
illness, (3) the ALJ failed to consider the nature of my mental illness, (4) the ALJ took
my testimony at face value, and (5) the ALJ failed to adequately inquire about financial
reasons for inconsistent treatment. Docket entry # 11, pp. 13‐16.
13
Baumgarten v. Chater, 75 F.3d 366, 368 (8th Cir. 1996) (“A social‐security claimant
bears the burden of proving disability. If, however, a claimant demonstrates that she is
unable to return to her past work, the burden shifts to the Commissioner to show that
work exists in the national economy that the claimant can perform.”) (citation omitted).
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defined parameters. “Substantial evidence ‘means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”14 A reasonable
mind would accept the following evidence as adequate to show Selph can work within
the ALJ’s parameters.
1. Medical treatment records. The treatment records show the onset of
psychotic symptoms beginning in January 2009 with an involuntary
commitment for mental health treatment.14 Selph demonstrated
symptoms of psychosis. He reported drinking about a quarter a pint of
alcohol daily, and using marijuana every day or every other day.15 This
report is significant because “several different research groups reported …
that cannabis (marijuana) use is a risk factor for the onset of psychosis.”16
The treating psychiatrist diagnosed psychotic disorder, cocaine abuse, and
alcohol abuse.17 Psychosis also flows from cocaine use18 and alcohol
withdrawal.19
The following month, Selph sought out‐patient treatment from a mental
14
Britton v. Sullivan, 908 F.2d 328, 330 (8th Cir. 1990) (internal citation omitted).
14
SSA record at p. 192.
15
Id. at p. 207.
16
Paula Anne Ford‐Martin & Rebecca Frey, 2 The Gale Encyclopedia of Mental
Health 1233 (3d ed.).
17
SSA record at p. 192.
18
Jennifer Hahn & Tish Davidson, 2 The Gale Encyclopedia of Mental Health 1532
(3d ed.).
19
Rebecca J. Frey , Joan Schonbeck & Tish Davidson, 1 The Gale Encyclopedia of
Mental Health 51 (3d ed.).
4
health provider.20 He reported frequent use of hallucinogens during his
employment with the government contractor.21 This report is significant
because psychosis often flows from the use, abuse, and withdrawal of
hallucinogenics.22 During the next few months, Selph reported complying
with prescribed anti‐psychotic medication and abstaining from alcohol
and marijuana. His symptoms resolved.23
By December 2009, Selph had discontinued his anti‐psychotic medication
and drank alcohol.24 Selph began to have delusions.25 He reported seeing
demonic images. His family took him to a mental health crisis unit.26 He
reported hallucinations that worsened since smoking salvia, a
hallucinogen herb.27 Selph was hospitalized, stabilized and discharged for
out‐patient care.
Selph complied with prescribed treatment for a few months and then stopped.
Although he testified that treatment did not help, he told mental health
providers that treatment resolved his symptoms.28 “If an impairment can be
controlled by treatment or medication, it cannot be considered disabling.”29 A
20
SSA record at p. 257.
21
Id. at p. 258.
22
Paula Anne Ford‐Martin & Rebecca Frey, 2 The Gale Encyclopedia of Mental
Health 1234 (3d ed).
23
SSA record at pp. 263, 274 & 284.
24
Id. at p. 228.
25
Id. at p. 229.
26
Id. at p. 231.
27
Id. at p. 222.
28
Id. at p. 276.
29
Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004) (citation omitted). See Estes
v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002) (“An impairment which can be controlled
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reasonable mind would accept the evidence as adequate to show Selph can work
because the treatment records show Selph’s symptoms resolved with treatment.
2. Mental diagnostic evaluation. Selph underwent two mental diagnostic
evaluations; the same examiner conducted the evaluations. During the
first evaluation, Selph denied the use of his anti‐psychotic medication and
illicit drugs.30 He denied paranoia or hallucinations. Based on the
discontinuation of treatment, drugs, and alcohol, the evaluator suspected
that Selph’s past psychotic symptoms flowed from long‐term drug use.31
The evaluator opined that Selph has the capacity to complete work related
tasks in a timely manner.32
Selph returned to the evaluator three months later. This time, he said he
was taking his anti‐psychotic medications,33 but denied the use of alcohol
or marijuana.34 Selph’s appearance and presentation suggested
otherwise.35 Selph attributed his inability to find work to the
government.36
Selph displayed an appropriate capacity to cope with typical cognitive
demands of basic work related tasks.37 The examiner opined that Selph is
by treatment or medication is not considered disabling.”); Roth v. Shalala, 45 F.3d 279,
282 (8th Cir. 1995) (“Failure to follow a prescribed course of remedial treatment without
good reason is grounds for denying an application for benefits.” ).
30
SSA record at p. 289.
31
Id. at pp. 289 & 291.
32
Id. at p. 292.
33
Id. at p. 317.
34
Id. at p. 318.
35
Id.
36
Id. at p. 317.
37
Id. at p. 321.
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mentally and emotionally able to sustain persistence when completing
tasks — “it is clear that his functioning is not limited by psychosis.”38 A
reasonable mind would accept the evidence as adequate to show Selph
can work because he demonstrated the capacity to work during his mental
diagnostic evaluations and reported no psychotic symptoms preventing
work within the ALJ’s parameters.
3. Daily activities. Selph returned to college in August 2009. He told the
mental health examiner that he had not worked because he attended
college39 — not because of mental impairment. He obtained a degree in
information technology in May 2011.40 A reasonable mind would accept
the evidence as adequate to show Selph can work within the ALJ’s
parameters because he obtained a college degree during the time he
claims to have been disabled because of his mental condition.
4. Medical opinions about Selph’s ability to work. Two medical
consultants reviewed the treatment records and the mental diagnostic
evaluations, and opined that Selph can do work where interpersonal
contact is incidental to the work performed, e.g., assembly work;
complexity of tasks is learned and performed by rote, with few variables
and little judgment; and supervision required is simple, direct and
concrete.41 A reasonable mind would accept the evidence as adequate to
show Selph can work because the ALJ defined Selph’s ability to work
using the consultants’ parameters. A vocational expert identified work
available within the parameters.
Conclusion. Substantial evidence supports the ALJ’s decision denying Selph’s
application. The ALJ made no legal error. For these reasons, the court DENIES the
38
Id. at p. 320.
39
Id. at p. 318.
40
Id. at pp. 29‐30 & 39.
41
Id. at pp. 310 & 324.
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request for relief (docket entry # 2) and AFFIRMS the decision denying the application.
It is so ordered this 7th day of October, 2013.
____________________________________
United States Magistrate Judge
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