Jensen v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on November 2, 2011. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
RICHARD A. JENSEN

PLAINTIFF

v.

Civil No. 11-3006

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Richard Jensen, 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 his claims for disability insurance benefits (“DIB”) and supplemental insurance benefits
(“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 August February 6, 2007, alleging

an onset date of December 1, 2006,1 due to back pain, depression, panic disorder with
agoraphobia, bipolar I disorder, borderline personality disorder, and polysubstance dependence.
His applications were initially denied and that denial was upheld upon reconsideration. Plaintiff
then made a request for a hearing by an Administrative Law Judge (“ALJ”). An administrative
hearing was held on July 1, 2008. Tr. 30-91. Plaintiff was present and represented by counsel.

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At the administrative hearing, Plaintiff amended his onset date from April 1, 1994. Tr. 97.

At this time, plaintiff was 39 years of age and possessed the equivalent of a high school
education. Tr. 32-33, 35. He had past relevant work (“PRW”) experience as a laborer and
construction worker. 65-66, 174, 227-233.
On September 26, 2008, the ALJ found that plaintiff’s major depression, panic disorder
with agoraphobia, bipolar I disorder, borderline personality disorder, and polysubstance
dependence were severe, but did not meet or medically equal one of the listed impairments in
Appendix 1, Subpart P, Regulation No. 4. Tr. 99-102. After partially discrediting plaintiff’s
subjective complaints, the ALJ determined that plaintiff retained the residual functional capacity
(“RFC”) to perform a full range of work at all exertional levels that involves only non-complex,
simple instructions and requires little judgment; involves routine/repetitive tasks that are learned
by rote with few variables; requires only superficial contact with the public/co-workers that is
incidental to the work performed; and, involves concrete, direct, and specific supervision. Tr.
102-105. With the assistance of a vocational expert, the ALJ found plaintiff could perform work
his PRW as an order picker. Tr. 105-106.
Plaintiff appealed this decision to the Appeals Council, but said request for review was
denied on December 8, 2010. Tr. 1-5. Subsequently, plaintiff filed this action. ECF No. 1.
Plaintiff has also filed a Motion to Supplement the Record with Additional Medical Evidence.
ECF No. 8. This case is before the undersigned by consent of the parties.
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
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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 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 her 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
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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 her 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 dismissal of Plaintiff’s subjective

complaints. In assessing the credibility of a claimant, the ALJ is required to examine and to
apply the five factors from Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984) or from 20 C.F.R.
§ 404.1529 and 20 C.F.R. § 416.429. See Shultz v. Astrue, 479 F.3d 979, 983 (2007). These
factors, which provide as follows, must be analyzed and considered in light of the claimant’s
subjective complaints of pain: (1) the claimant’s daily activities; (2) the duration, frequency, and
intensity of the pain; (3) the precipitating and aggravating factors; (4) the dosage, effectiveness,
and side effects of medication; and (5) the functional restrictions. See Polaski, 739 at 1322. The
ALJ is not required to methodically discuss each factor as long as the ALJ acknowledges and
examines these factors prior to discounting the claimant’s subjective complaints. See Lowe v.
Apfel, 226 F.3d 969, 971-72 (8th Cir. 2000). However, she cannot discount Plaintiff’s subjective
complaints “solely because the objective medical evidence does not fully support them.”
Polaski, 739 F.2d at 1322.
We note that 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.
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1996). Evidence of symptom-free periods, which may negate the finding of a physical disability,
do not compel a finding 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).
Records indicate Plaintiff had a history of major depression with psychotic features, panic
disorder with agoraphobia, borderline personality disorder, and polysubstance abuse, as well as
diagnoses of schizoaffective disorder and bipolar disorder. He also had a history of suicide
attempts,2 auditory and visual hallucinations, self mutilation, and a history of extensive abuse.
Tr. 236-242, 340, 343, 354-359, 362, 408-409, 416, 418, 436, 468, 524. Additional records
documenting a second hospitalization in May 2009 for a suicide attempt and lacerations to his
wrists requiring surgical correction were submitted to the Appeals Council, but were not made
a part of the record. Plaintiff now seeks to admit these records. These records indicate that

2

Although dated prior to Plaintiff’s amended onset date, the record reveals multiple ER visits for
depression with self inflicted lacerations to the upper extremities. Tr. 354-359, 362, 468. Each incident
involved alcohol. Plaintiff reported thinking of cutting often, which angered him, and caused him to drink to
calm down. And, in turn, he cut himself. We find this to be just one example of his disorganized thinking and
poor insight. Tr. 444.

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Plaintiff was again diagnosed with schizoaffective disorder. This disorder is essentially a
combination of schizophrenia and bipolar disorder, resulting in severe changes in mood and
some of the psychotic symptoms of schizophrenia, such as hallucinations, delusions, and
disorganized thinking. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS IVTEXT REVISED (DSM IV-TR) 319-321. (4th ed. 1994).
We note that the ALJ dismissed plaintiff’s subjective complaints, stating that plaintiff had
abused marijuana and alcohol and failed to take his medication as prescribed. The mere fact that
substance abuse aggravates Plaintiff’s mental illness does not prove that the mental illness itself
is not disabling. Brown v. Apfel, 192 F.3d 492, 499 (5th Cir.1999); Sousa v. Callahan, 143 F.3d
1240, 1245 (9th Cir.1998). Research reveals that schizoaffective disorder can precipitate
substance abuse, as a means by which the sufferer tries to alleviate his symptoms. DSM IV-TR
at 321; Goodwin & Jamison, supra, at 219-25; Li-Tzy Wu et al., Influence of Comorbid Alcohol
and Psychiatric Disorders on Utilization of Mental Health Services in the National Comorbidity
Survey, 156 AM. J. PSYCHIATRY 1235 (1999); Edward J. Khantzian, The Self-Medication
Hypothesis of Addictive Disorders: Focus on Heroin and Cocaine Dependence, 142 AM. J.
PSYCHIATRY 1259, 1263 (1985). Further, while we do agree that the record reveals periods
during which plaintiff did not take his medication or made his own adjustments to his
medication, we are also aware of the fact that it is not uncommon for patients suffering from
bipolar disorder, schizophrenia, and/or schizoaffective disorder 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,
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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. As such, we believe that the ALJ should have taken this into
consideration prior to rendering her opinion. Because the ALJ failed to do so in this case, we
cannot say that substantial evidence supports the ALJ’s dismissal of plaintiff’s subjective
complaints on the basis of plaintiff’s failure to take his medication as prescribed. Accordingly,
on remand, the ALJ should question plaintiff’s treating physicians regarding the cause of
plaintiff’s failure to take his medication and the effect, if any, it has on his condition. His
physicians should also be asked to determine what Plaintiff’s limitations would be, if Plaintiff
were to no longer drink or abuse drugs.
The ALJ also relied heavily on Dr. Price’s December 2007 evaluation of Plaintiff. Tr.
520-522. In this assessment, he indicated that he could not determine Plaintiff’s motives for
treatment, as he mentioned his application for disability as well as financial and legal problems.
However, the ALJ failed to note that Dr. Price also indicated that he was not listing malingering
as a possible diagnosis because he was uncertain of it applicability. He stated that Plaintiff could
“just be in a surly hypomanic phase and not a very good historian” or have “impaired cognition
due to inhalant damage to his neurons.” Tr. 521. Dr. Price indicated that he would give Plaintiff
the benefit of the doubt and prescribed him medication. Additional treatment records from Dr.
Price reveal that Plaintiff was increasing his medication dosages against medical advice due to
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continued anxiety, but Dr. Price did not diagnose him with malingering. Instead, he was of the
opinion that Plaintiff was experiencing some cognitive difficulty. Tr. 524-525. Accordingly,
we find the ALJ’s reliance on Dr. Price’s questionable diagnosis of malingering to be improper.
Plaintiff has also complained of lower back pain and been prescribed narcotic pain
medications and muscle relaxers to treat this impairment. The ALJ dismissed his complaints,
finding no evidence to support them. Instead, she concluded he could perform a full range of
work at all exertional levels. We note, however, that the record contains an MRI of his lumbar
spine dated June 5, 2008, revealing a possible annular tear involving the L5-S1 disk and mild
degenerative disk disease at the same level. Tr. 514. Reeder v. Apfel, 214 F.3d 984, 988 (8th
Cir. 2000) (holding that the ALJ is not free to ignore medical evidence, rather must consider the
whole record). Further, Plaintiff seeks to admit an additional x-ray dated December 2008, in
which degenerative changes are also noted.3 On remand, the ALJ is directed to reconsider the
evidence documenting possible limitations resulting from Plaintiff’s back pain and to obtain the
additional medical records submitted by Plaintiff.
IV.

Conclusion:
Based on the foregoing, we reverse the decision of the ALJ and remand the case to the

Commissioner for further consideration pursuant to sentence four of 42 U.S.C. § 405(g).
DATED this the 2nd day of November 2011.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

3

This record was also referenced by the Appeals Council in their Order denying review, but was
omitted from the record.

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