Jordan v. Social Security Administration

Filing 19

OPINION finding that the ALJ's decision is supported by substantial evidence and there is no legal error; therefore, this case must be dismissed with prejudice. Signed by Magistrate Judge Jerry W. Cavaneau on 9/26/13. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

FERYL LARON JORDAN
Vs.

PLAINTIFF
4:12-CV-516-JWC

SOCIAL SECURITY ADMINISTRATION

DEFENDANT

OPINION
Plaintiff, Feryl Laron Jordan, seeks judicial review of the denial of his
claims for a period of disability and disability insurance benefits and for
supplemental security income benefits. 1 Judicial review of the Commissioner's
denial of benefits examines whether the decision is based on legal error and
whether the findings of fact are supported by substantial evidence in the record as a
whole. Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009); see 42 U.S.C. §§
405(g), 1383(c)(3). Substantial evidence is "less than a preponderance but is
enough that a reasonable mind would find it adequate to support the conclusion."
Wiese, 552 F.3d at 730. In its review, the Court must consider evidence supporting
the Commissioner's decision as well as evidence detracting from it. Id. That the
Court would have reached a different conclusion is not a sufficient basis for

1

(doc.9)

The parties have consented to the jurisdiction of the magistrate judge.

reversal; rather, if it is possible to draw two inconsistent conclusions from the
evidence and one of these conclusions represents the Commissioner's findings, the
denial of benefits must be affirmed. Id.
Plaintiff was born October 16, 1961. He has at least a high school
education. He alleges a disability onset date of May 15, 2008.
An Administrative Law Judge (ALJ) held a hearing on October 26, 2009,
and rendered an unfavorable decision on December 1, 2010. Following the
required five step analysis, he found Plaintiff to suffer from the following “severe”
impairments within the meaning of the Social Security Act:
spondylosis, most significant on the right at the L5-S1 level,
secondary to facet/ligament and flavum hypertrophy; high blood
pressure, major depressive disorder; substance induced mood
disorder; and cocaine dependence (20 CFR 404.1520(c) and
416.920(c). (Tr. 14)
At step three the ALJ found that Plaintiff’s impairments did not meet or
medically equal any of the listed impairments. At step four, he found Plaintiff
physically capable of performing light work, but added:
In addition, due to problems with depression and substance abuse, the
claimant would not be able to understand, carry out and remember
instructions; to use appropriate judgment in making work related
decisions; to respond appropriately to supervision; to deal with routine
work pressures or changes in a routine work setting; and the
hypothetical claimant would not be able to complete the required tasks
of a 40 hour, 5 day a week job. (Tr. 15)
The ALJ determined that considering the substance abuse, Plaintiff would be

unable to perform any jobs existing in significant numbers in the national
economy. However, he went on to find that Plaintiff’s cocaine use was material to
the disability and that, although he would not be able to perform his past relevant
work, he would be able to perform other existing jobs if he stopped the substance
abuse. Plaintiff challenges the findings that he suffers from a substance abuse
disorder and that the disorder is material to the disability picture. 2
When a claimant is found to be disabled and there is medical evidence of a
substance use disorder, the ALJ must determine whether the disorder is a
contributing factor material to the disability determination. In doing so, he must
evaluate the extent to which the claimant’s mental and physical limitations would
remain if the claimant stopped the substance abuse. If the remaining limitations
would not be disabling, the substance abuse is considered a contributing factor
material to the determination of disability. 20 CFR 404.1535 and 416.935. The
substance abuse question cuts across all issues raised by Plaintiff.
Plaintiff’s basic thrust is that the ALJ’s finding his substance abuse to be
material, i.e., that Plaintiff could perform work if he stopped using, is contrary to
the evidence. He first says the ALJ’s determination that Plaintiff had cocaine
dependence and substance induced mood disorder is contrary to the medical
evidence. He implies that the ALJ mistakenly minimized Plaintiff’s major
2

He does not challenge the findings relating to physical disability.

depression by overemphasizing the substance abuse because, according to a report
by Dr. Sam Boyd, Ph. D., Plaintiff was “in early full remission.” Plaintiff told Dr.
Boyd that he had last used alcohol about three weeks and cocaine about three
months before Dr. Boyd’s examination and evaluation of September 23, 2008. Dr.
Boyd merely took Plaintiff at his word, though he felt that Plaintiff “seemed to
minimize his alcohol and drug use.” 3 The medical records actually contradict the
conclusion that the condition was in remission. Plaintiff had a long history of
substance abuse. He was sent for participation in numerous treatment programs,
but was often non-compliant with treatment regimes. He had suffered repeated
relapses. If there was a remission, it was rather short-lived, because Plaintiff tested
positive for cocaine on June 9, 2009, after Dr. Boyd’s evaluation.4 The medical
evidence of record clearly demonstrates a long-term, serious problem with
substance abuse. The ALJ’s finding is supported by that record and his analysis
neither wrongly minimized Plaintiff’s depression nor unduly maximized his
substance abuse.
Plaintiff next argues that a psychologist who examined the medical records,
Dr. Leaf, Ph. D., found plaintiff to have “marked limitations with maintaining
concentration, understanding of simple to complex instructions, inability to
3

Tr. 328.

4

See, Tr. 639.

socially interact with peers and supervisors as well as the public and he will have
difficulty adjusting to even simple changes in the job routine.” Plaintiff concludes
that the medical evidence was sufficient to support a finding that he met a listing
“if the substance abuse was considered.” (Emphasis added). 5 This argument begs
the question, because Dr. Leaf was clearly considering Plaintiff’s depression and
substance abuse in combination. 6 Although Dr. Leaf referred to Dr. Boyd’s
finding that the substance abuse was not material to Plaintiff’s disability, he did not
himself state an opinion on that issue.
This brings us to Plaintiff’s argument that the ALJ improperly discounted
the opinion of Dr. Boyd that “. . . even if [Plaintiff] were not using alcohol or
cocaine, his depression would still prevent him from being able to cope with the
mental demands of basic work-like tasks.” 7 Dr. Boyd did examine Plaintiff.
However, there are substantial reasons for discounting this opinion. The ALJ
stated that the record shows periods of sobriety where Plaintiff was able to
maintain gainful employment, and that he was able to perform household chores,
maintain personal hygiene and maintain a long-term relationship with a woman. In
addition to the reasons articulated by the ALJ, the Court notes that Dr. Boyd

5

Plaintiff’s Brief Doc. 16, p. 5.

6

See, Tr. 591, last paragraph of Dr. Leaf’s report.

7

See, Tr. 329.

merely did a one time evaluation and seemed to uncritically accept Plaintiff’s
recitations of his anger problems. The only testing apparent from the report dealt
with Plaintiff’s cognitive abilities. Dr. Boyd did not have the benefit of having the
Veteran’s Administration medical records to review. His acceptance of Plaintiff’s
statement that he used cocaine only sporadically is inconsistent on the face of the
report and is certainly inconsistent with the fact that he had been through five
separate rehabilitation programs. Dr. Boyd acknowledged that Plaintiff’s
substance abuse was likely more extensive than he would admit, but then
incongruosly concluded that it was in early full remission. He accepted Plaintiff’s
statements and demeanor without question and even felt that he was threatened by
the anger which Plaintiff demonstrated during the interview.
Dr. Boyd’s conclusion that Plaintiff’s substance abuse was not material to
his disability is also in conflict with other evidence of record. Although Plaintiff
says he has suffered from anger issues all his life, he was able to successfully
complete three years active duty and one year reserve duty in the United States
Army, receiving an honorable discharge. He also worked as a prison guard in the
Arkansas Department of Correction from 1989 to 1991, losing that job not because
of anger issues, but because of an escape that occurred in his area. Plaintiff’s
service in the army and as a prison guard are inconsistent with the notion that he
would be unable to control his anger in the absence of substance abuse. Finally,

Plaintiff acknowledged in a VA intake interview on June, 20, 2008, that “his anger
is further complicated when he drinks and uses drugs excessively.” 8
There is ample evidence in the record to support the ALJ’s discounting of
Dr. Boyd’s conclusion, his finding that Plaintiff’s substance abuse is material to his
disability, and his ultimate conclusion that without the substance abuse, Plaintiff is
not disabled.
CONCLUSION
The Court finds that the ALJ’s decision is supported by substantial evidence
and there is no legal error. Therefore, this case must be dismissed with prejudice.
IT IS SO ORDERED this 26th day of September, 2013.

__________________________________
UNITED STATES MAGISTRATE JUDGE

8

Tr. 258.