Boitel v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION Signed by Honorable James R. Marschewski on August 13, 2012. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CANDACE L. BOITEL

PLAINTIFF

v.

Civil No. 11-2161

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Candace Boitel, brings this action under 42 U.S.C. § 405(g), seeking judicial review
of a decision of the Commissioner of Social Security Administration (Commissioner) denying her claims
for a period of disability, disability insurance benefits (“DIB”), and supplemental security income
(“SSI”) under Titles II and XVI of the Social Security Act (hereinafter “the Act”), 42 U.S.C. §§
423(d)(1)(A), 1382c(a)(3)(A). In this judicial review, the court must determine whether there is
substantial evidence in the administrative record to support the Commissioner’s decision. See 42 U.S.C.
§ 405(g).I.

Procedural Background:
The plaintiff filed her applications for DIB and SSI on December 13, 2007, alleging disability

since October 20081, due to bipolar disorder, body aches, panic attacks, Hepatitis C, and renal failure.
The Commissioner denied Plaintiff’s application initially and on reconsideration. Tr. 71-78, 239-245.
An administrative hearing was held on February 12, 2010. Tr. 25-62. Plaintiff was present and
represented by counsel.
At the time of the hearing, Plaintiff was 29 years old and possessed the equivalent of a high
school education. Tr. 22. She had completed two years of beauty school, but never obtained her license.
Tr. 163. Plaintiff had past relevant work experience fast food cashier and industrial worker. Tr. 250,
260. It is noted, however, that Plaintiff’s work history is sporadic.

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Plaintiff originally alleged an onset date of September 19, 2007, however, due to her continued work
at Cargill and her drug use, at the hearing, she agreed to amend her onset date. Tr. 61.

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On August 3, 2010, the ALJ found Plaintiff’s bipolar and substance abuse disorders were severe
impairments, but concluded they did not meet or medically equal one of the listed impairments in
Appendix 1, Subpart P, Regulation No. 4. Tr. 13-15. After partially discrediting Plaintiff’s subjective
complaints, she determined Plaintiff could perform a full range of work at all exertional levels but with
the following nonexertional limitations: the Plaintiff is only able to perform work where the complexity
of the tasks is learned by rote with few variables and little required judgment and where the supervision
required is simple, direct, and concrete. Tr. 15-18. Utilizing the Medical-Vocational Guidelines (“the
Grids”), the ALJ determined Plaintiff was not disabled. Tr. 18-19.
Plaintiff appealed this decision to the Appeals Council, but said request for review was denied
on August 11, 2011. Tr. 1-5. Subsequently, plaintiff filed this action. ECF No. 1. This case is before
the undersigned by consent of the parties. Both parties have filed appeal briefs, and the case is now
ready for decision. ECF No. 11, 13.
II.

Applicable Law:
This court’s role is to determine whether the Commissioner’s findings are supported by

substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002).
Substantial evidence is less than a preponderance but it is enough that a reasonable mind would find it
adequate to support the Commissioner’s decision. The ALJ’s decision must be affirmed if the record
contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003).
As long as there is substantial evidence in the record that supports the Commissioner’s decision, the
court may not reverse it simply because substantial evidence exists in the record that would have
supported a contrary outcome, or because the court would have decided the case differently. Haley v.
Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In other words, if after reviewing the record it is possible
to draw two inconsistent positions from the evidence and one of those positions represents the findings

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of the ALJ, the decision of the ALJ must be affirmed. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.
2000).
It is well-established that a claimant for Social Security disability benefits has the burden of
proving her disability by establishing a physical or mental disability that has lasted at least one year and
that prevents her from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2001); see also 42 U.S.C. § § 423(d)(1)(A), 1382c(a)(3)(A). The Act defines
“physical or mental impairment” as “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. § § 423(d)(3), 1382(3)(c). A plaintiff must show that his or her
disability, not simply their impairment, has lasted for at least twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential evaluation process
to each claim for disability benefits: (1) whether the claimant has engaged in substantial gainful activity
since filing his claim; (2) whether the claimant has a severe physical and/or mental impairment or
combination of impairments; (3) whether the impairment(s) meet or equal an impairment in the listings;
(4) whether the impairment(s) prevent the claimant from doing past relevant work; and, (5) whether the
claimant is able to perform other work in the national economy given his age, education, and experience.
See 20 C.F.R. § § 404.1520(a)- (f)(2003). Only if the final stage is reached does the fact finder consider
the plaintiff’s age, education, and work experience in light of his or her residual functional capacity. See
McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003).
III.

Discussion:
Of particular concern to the undersigned is the ALJ’s assessment of Plaintiff’s mental

impairments. The evaluation of a mental impairment is often more complicated than the evaluation of
a claimed physical impairment. Andler v. Chater, 100 F.3d 1389, 1393 (8th Cir. 1996). Evidence of
symptom-free periods, which may negate the finding of a physical disability, do not compel a finding

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that disability based on a mental disorder has ceased. Id. Mental illness can be extremely difficult to
predict, and remissions are often of “uncertain duration and marked by the impending possibility of
relapse.” Id. Individuals suffering from mental disorders often have their lives structured to minimize
stress and help control their symptoms, indicating that they may actually be more impaired than their
symptoms indicate. Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir.2001); 20 C.F.R. Pt. 404, Subpt.
P., App. 1, § 12.00(E) (1999). This limited tolerance for stress is particularly relevant because a
claimant’s residual functional capacity is based on their ability to perform the requisite physical acts day
in and day out, in the sometimes competitive and stressful conditions in which real people work in the
real world.” McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982) (abrogated on other grounds).
The ALJ contends that Plaintiff’s bipolar disorder is well controlled by medication and that her
symptoms are exacerbated by situational stressors and a failure to take her medication. She notes that
Plaintiff was admitted to the hospital on at least three separate occasions (i.e., January 2007, October
2007, and April 2009) for suicide attempts, but attempts to dismiss them stating each was precipitated
by a confrontation with family members. Further, in each instance, she contends that Plaintiff was
stabilized on medication and recovered quickly. The ALJ then goes on to state that Plaintiff was
consistently assigned global assessment of functioning (“GAF”) scores of 50-60, which is indicative of
only moderate symptoms. And, she contends that Dr. Richard Owings, Plaintiff’s treating doctor, noted
that Plaintiff was aware that she needed to rid herself of the situational stressors and comply with her
medication.
Although her conclusions could be used to bolster a decision in a case involving other
psychiatric disorders, the ALJ’s treatment of Plaintiff’s bipolar disorder is quite neglectful for several
important reasons. First, the conclusion that Plaintiff’s suicide attempts were due to situational factors,
namely an abusive marriage and strained familial relationships, in no way negates the severity of
Plaintiff’s bipolar disorder. Research shows that patients suffering from bipolar disorder are in a higher

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risk category for suicide attempts than are individuals suffering from other mental disorders. P. Lopez,
et al., Suicide Attempts in Bipolar Patients, 62 J. CLIN PSYCHIATRY, December 2001, at 963-966. The
higher prevalence of suicide attempts among bipolar patients has been related to drug abuse, a family
history of affective disorders, and severe depressive episodes. Id. Given that the hallmark of bipolar
disorder is the potential for rapid swings between manic and depressive episodes and that a disagreement
or argument with a family member would likely upset even an individual not suffering from bipolar
disorder, it seems reasonable that this same situation could send a bipolar patient into a major depressive
episode. See American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS IV TEXT REVISION (“DSM IV-TR”) 383, 392 (4th ed. 200). Therefore, the undersigned is
of the belief that Plaintiff’s bipolar disorder contributed to her suicide attempts. The extent of the
impact, however, is a question that should be posed to a treating source.
The ALJ also contends that Plaintiff’s bipolar disorder was well controlled via medication, when
Plaintiff took the medication as prescribed. However, once again, the ALJ failed to take note of one of
the most important symptoms associated with bipolar disorder. It is not uncommon for patients suffering
from bipolar disorder and/or schizophrenia to discontinue their medications at will. See DSM IV-TR
304, 321, 359; Charolette E. Grayson, Bipolar Disorder: Taking Your Bipolar Medication, at
www.webmd.com; Agnes Hatfield, Medication Non-Compliance, at www.schizophrenia.com.
According to the DSM, patients suffering from schizophrenia, schizoaffective disorder, and bipolar
disorder also suffer from anosognosia, or poor insight. DSM IV-TR 304, 321, 359 (4th ed. 2000).
“Evidence suggests that poor insight is a manifestation of the illness, rather than a coping strategy. . . .
This symptom predisposes the individual to noncompliance with treatment and has been found to be
predictive of higher relapse rates, increased number of involuntary hospital admissions, poorer
psychosocial functioning, and a poorer course of illness.” Id. Again an issue that should have been

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addressed by a treating physician, but should have also been taken this consideration prior to rendering
the ALJ’s opinion.
The ALJ also notes that Plaintiff reportedly abused prescription opioids and sedatives until May
2008. She then goes on to find that Plaintiff’s bipolar disorder exists independent of her substance
abuse. Substance abuse and anxiety disorders are frequently associated with bipolar disorder. At least
one major study has shown that “more than forty-two percent of patients meeting the criteria for a major
depressive disorder (including bipolar disorder) had lifetime histories of substance abuse.” Id. at 1345.
Yet another study has revealed that “the frequency of substance abuse was thirty-nine percent in
adolescents who had symptoms of bipolar disorder.” Id. Thus, the fact that substance abuse disorder
aggravates an individual’s bipolar disorder does not negate the potential for the mental disorder to be
found to be disabling. See Kangail v. Barnhart, 454 F.3d 627, 629 (7th Cir. 2006) (citing cases from
other circuits holding the same).
And, finally, the ALJ’s failure to call a vocational expert to testify regarding the presence of jobs
that exist in significant numbers in the national economy also necessitates remand. In Wheeler v.
Sullivan, the United States Court of Appeals for the Eighth Circuit concluded that because the Plaintiff
suffered from a severe mental impairment, the ALJ must use vocational expert testimony or other similar
evidence in order to meet his burden of showing the existence of jobs in the national economy that the
Plaintiff is capable of performing. 888 F. 2d 1233, 1238 (8th Cir. 1989) (if claimant suffers from severe
mental impairment but not listed impairment and claimant cannot return to past relevant work, ALJ must
use VE testimony or other similar evidence to show jobs exist that claimant can perform); Vincent v.
Apfel, 264 F.3d 767, 769-770 (8th Cir. 2001) (applying Wheeler). The Government contends that this
was not necessary because the ALJ properly discredited Plaintiff’s subjective complaints, so use of the
Grids was proper. Reynolds v. Chater, 82 F.3d 254, 258-259 (8th Cir. 1996). However, as discussed
above, the ALJ improperly dismissed Plaintiff’s subjective complaints concerning her bipolar disorder.

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Further, because she properly concluded that Plaintiff’s bipolar disorder constituted a severe impairment,
she was obligated to call a vocation expert to assist in determining the availability of work for an
individual with Plaintiff’s limitations.
Accordingly, because the ALJ failed to properly consider Plaintiff’s diagnosis of bipolar, we
believe remand is necessary to allow the ALJ to do so. On remand, the ALJ is also directed to call a
vocational expert to testify regarding the availability of work the Plaintiff could perform in spite of her
physical and mental limitations.
IV.

Conclusion:
Accordingly, we conclude that the ALJ’s decision is not supported by substantial evidence and

should be reversed and remanded to the Commissioner for further consideration pursuant to sentence
four of 42 U.S.C. § 405(g).
DATED this 13th day of August 2012.

/s/J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE

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