Malone v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on January 31, 2014. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
JAMES C. MALONE, III
Civil No. 12-3098
CAROLYN W. COLVIN,1 Commissioner
Social Security Administration
Plaintiff, James C. Malone, III, 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 claim for a period of disability, disability insurance benefits (“DIB”), 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.
Plaintiff applied for SSI and DIB on April 25, 2008. (Tr. 10.) Plaintiff alleged an onset date of
December 1, 2005 due to Epilepsy, Attention Deficit Disorder, Mood Disorder, Depression, Alcohol and
Drug Abuse (currently in recovery), rheumatoid arthritis in his lower back, and edema in legs and hands.
(Tr. 159.) Plaintiff’s applications were denied initially and on reconsideration. Plaintiff requested an
administrative hearing, which was held on September 16, 2010. (Tr. 30.) Plaintiff was present to testify
and was represented by counsel. The ALJ also heard testimony from Plaintiff’s mother and father. (Tr.
30.) Plaintiff later amended his onset date to December 1, 2006. (Tr. 10.)
Carolyn W. Colvin became the Social Security Commissioner on February 14, 2013. Pursuant to Rule
25(d)(1) of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been substituted for Commissioner
Michael J. Astrue as the defendant in this suit.
At the time of the administrative hearing, Plaintiff was 50 years old, possessed a high school
diploma, and had completed approximately one and one-half years of college. (Tr. 858.) The Plaintiff
had past relevant work experience (“PRW”) as a mechanic helper, shipping and receiving clerk, and a
custodian. (Tr. 16.)
On November 22, 2011, the ALJ concluded that the Plaintiff had the following severe
impairments: Polysubstance Abuse, Back Pain, Personality Disorder, Epilepsy, and Hepatitis C. (Tr. 13.)
The ALJ found based on all of the impairments, including the substance use disorder, that Plaintiff
maintained the residual functional capacity to perform light work except that he “is unable to meet
competitive work standards in: remembering work-like procedures, maintaining attention for two hour
segments, maintaining regular attendance and punctuality, sustaining an ordinary routine without special
supervision, completing a normal workday and workweek without interruptions from psychologically
based symptoms and performing at a consistent pace without an unreasonable number and length of rest
periods.” (Tr. 15.) The ALJ also found that his impairments or treatment would cause him to be absent
from work more than four days per month. (Tr. 15.) Through the use of post-hearing interrogatories to
Vocational Expert (“VE”) Sarah Moore, the ALJ determined that the Plaintiff is unable to make a
successful vocational adjustment to work that exists in significant numbers in the national economy. (Tr.
17.) A finding of “disabled” was therefore appropriate. (Tr. 17.)
However, the ALJ also found that “[i]f the claimant stopped the substance use, the claimant
would not have an impairment or combination of impairments that meets or medically equals any of the
impairment list[ings].”(Tr. 17.) Without the substance use, the ALJ found that that Plaintiff maintained
the residual functional capacity to perform light work with the following limitations: “claimant is limited
to work where interpersonal contact is incidental to the work performed. He is also limited to work where
the complexity of tasks is learned and performed rote, with few variables and little judgment required.
In addition, the claimant is limited to work where the supervision required is simple, direct, and concrete.
Moreover, the claimant must avoid hazards, including unprotected heights and moving machinery. The
claimant can occasionally climb, balance, crawl, kneel, stoop, and crouch. Furthermore, the claimant can
frequently finger and handle.” (Tr. 18.) The VE opined that if Plaintiff stopped his substance abuse, he
would be able to perform work as an assembler, inspector/tester, or machine tender. (Tr. 22.) Therefore
Plaintiff would not be disabled if he stopped substance use. (Tr. 23.)
Plaintiff requested a review by the Appeals Council on December 9, 2010. (Tr. 5.) The Appeals
Council denied the appeal on June 5, 2012. (Tr. 1.)
This court's role is to determine whether the Commissioner's findings are supported by
substantial evidence on the record as a whole. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
Substantial evidence is less than a preponderance, but enough that a reasonable mind would find it
adequate to support the Commissioner’s decision. Id. “Our review extends beyond examining the record
to find substantial evidence in support of the ALJ’s decision; we also consider evidence in the record
that fairly detracts from that decision.” Id. As long as there is substantial evidence in the record to
support the Commissioner’s decision, the court may not reverse the decision simply because substantial
evidence exists in the record to support a contrary outcome, or because the court would have decided the
case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If the court finds it possible
“to draw two inconsistent positions from the evidence, and one of those positions represents the
Secretary’s findings, the court must affirm the decision of the Secretary.” Cox, 495 F.3d at 617 (internal
quotation and alteration omitted).
It is well-established that a claimant for Social Security disability benefits has the burden of
proving his disability by establishing a physical or mental disability that has lasted at least one year and
that prevents him from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2001); see 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). A plaintiff must show that his disability, not simply his
impairment, has lasted for at least twelve consecutive months. Titus v. Sullivan, 4 F.3d 590, 594 (8th
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).
Plaintiff raises two issues on appeal: 1) the ALJ erred in finding that the Plaintiff’s substance
abuse was a material contributing factor in his disability; and 2) the ALJ erred in failing to find
Plaintiff’s neck pain a severe impairment. (Pl.’s Br. 14, 19.)
Plaintiff’s Substance Abuse
Plaintiff argues that the ALJ erred in determining that substance abuse was a material factor
contributing to disability because 1) he has permanent impairments caused by substance abuse; 2) the
ALJ did not consider the continuation of symptoms during periods of sobriety; and 3) the ALJ made his
materiality determination without “any kind of medical support.” (Pl.’s Br. 14.) We agree that the ALJ
did not fully and fairly develop the record as to Plaintiff’s RFC in the event that he stopped his substance
In 1996 the Social Security Act was amended to deny benefits to a claimant if alcoholism or
drug addiction2 was a contributing factor material to the determination of disability. 42 USCA §
423(d)(2). Pursuant to 20 CFR § 416.935 (SSI), 20 CFR § 404.1535 (DIB), and SSR 13-2p, the "key
factor" in determining if substance abuse is "material" is whether the claimant would still be disabled
if the claimant stopped substance abuse. “The focus of the inquiry is on the impairments remaining if
the substance abuse ceased, and whether those impairments are disabling, regardless of their cause.”
Pettit v. Apfel, 218 F.3d 901, 903 (8th Cir. 2000) (citing 20 C.F.R. § 404.1535(b)(1); Jackson v. Apfel,
162 F.3d 533, 537-38 (8th Cir. 1998)).
The 1996 amendment thus added another layer to the familiar five-step disability evaluation. In
order to determine if substance abuse is “material,” the ALJ first evaluates all of the claimant's
impairments, including the substance abuse. If the claimant is considered disabled at that point in the
process, the ALJ must then project which of the impairments, if any, would remain at a disabling level
if the claimant stopped their substance abuse. SSR 13-2p; Brueggemann v. Barnhart, 348 F.3d 689,69495 (8th Cir. 2003).
“Determining whether a claimant would still be disabled if he or she stopped [the substance
abuse] is, of course, simpler if the claimant actually has stopped.” Pettit, 218 F.3d at 903. However,
active and ongoing substance abuse does not automatically require a finding that the substance abuse is
material. 13-2p; Brueggemann, 348 F.3d at 695. Rather, the ALJ must take on the difficult task of
untangling the warp threads of the claimant’s substance abuse from the woof threads of the claimant’s
The Agency recognizes that terms alcoholism and drug addiction are medically outdated as opposed to
the terms substance abuse or substance use disorder, but continues to use the terms and the abbreviation DAA
because they are used in the statute. SSR 13-2p. For the purposes of this opinion, the term substance abuse will
be used in place of DAA.
other impairments in order to examine the hypothetical cloth that remains. “[A]lthough the task is
difficult, the ALJ must develop a full and fair record and support his conclusion with substantial
evidence on this point just as he would on any other.” Snead v. Barnhart, 360 F.3d 834, 839 (8th Cir.
2004); Brueggemann , 348 F.3d at 694-95 (citing Pettit, 218 F.3d at 903).
The burden of proving that DAA is not material falls on the claimant. Id. at 693. However, “[i]f
the ALJ is unable to determine whether substance use disorders are a contributing factor material to the
claimant's otherwise-acknowledged disability, the claimant's burden has been met and an award of
benefits must follow.” Id. “In colloquial terms...a tie goes to [the claimant].” Id.
We are troubled by four points in the ALJ’s opinion.
First, the ALJ appears to have mischaracterized key findings from Dr. Nancy Bunting and Dr.
Anthony Fischetto regarding Plaintiff’s psychiatric status and substance abuse. Dr. Fischetto performed
a consultative psychiatric examination on August 8, 2008. (Tr. 565.) In his findings he stated that “[if]
he abstains from drugs and alcohol, he can learn to cope better.” (Tr. 570.) The ALJ reported Dr.
Fischetto’s findings as follows: “Dr. Fischetto opined that if the claimant were to abstain from substance
abuse, he could learn to cope better with the typical mental/cognitive demands of basic work-like tasks.”
(Tr. 21.) A review of Dr. Fischetto’s opinion did not reveal information within it that would support the
ALJ’s addition to Dr. Fishetto’s statement. The ALJ then used this mischaracterization of Dr. Fischetto’s
statement in his Polaski analysis to discredit Plaintiff’s testimony concerning his abilities to make
occupational, performance, social and other adjustments. (Tr. 21.)
Dr. Bunting performed a consultative psychiatric examination on August 21, 2009. (Tr. 857.)
In her summary of conclusions she stated:
“Antisocial personality disorder is very much suspected but there is not enough history
to really support the diagnosis. One of the long term results of cocaine abuse is brain
damage to the neural receptors such that depression results. His reported depression
would be consistent with long term cocaine use. This depression would be organically
(Tr. 861.) The ALJ noted that Dr. Bunting opined that the Plaintiff’s cognitive and mental demands were
impaired due to long term cocaine use, but neglected to include that fact that Dr. Bunting stated that the
damage would be organically based. (Tr. 15.) This omission is particularly troubling because organic
brain damage is precisely the type of physical or mental damage caused by long-term substance abuse
that the Agency expressly recognizes as irreversible. SSR 13-2p. When presented with this evidence the
ALJ had a duty to consider it, and, if necessary, more fully develop the record concerning it. He did not.
Second, the ALJ does not appear to have fully developed the record as to Plaintiff’s alleged
periods of sobriety. Pursuant to the Agency’s own regulations and policies, in cases of co-occurring
mental impairment the ALJ must investigate documentation of period(s) of abstinence to determine what,
if any, medical findings and impairment-related limitations remained in the absence of substance abuse.
SSR 13-2p. In order to find that the substance abuse is material the ALJ “must have evidence in the case
record demonstrating that any remaining limitations were not disabling during the period.” SSR 13-2p.
“If the evidence in the case record does not demonstrate the separate effects of the treatment for
[substance abuse] and co-occurring mental disorder(s)” then the ALJ should not find the substance abuse
to be material.” SSR 13-2p.
We cannot discern how the ALJ could have adequately considered the Plaintiff’s function during
periods of sobriety when the ALJ never clearly identified a period of sobriety. Instead, the ALJ pointed
out the inconsistencies in the evidence concerning alleged periods of sobriety, such as different dates of
reported sobriety, multiple relapses in the medical records, and positive drug tests. (Tr. 15.) However,
in his Polaski analysis, he indicated that Plaintiff’s self-reported activities of daily living “during periods
of sobriety. . .have been somewhat greater than the claimant has generally reported.” (Tr. 20.) The ALJ
also stated that “medical evidence supports the conclusion that the claimant would continue to
experience some limitations and restrictions, even if substance use were discontinued; but only to the
extent detailed in the residual functional capacity above.” (Tr. 21.) The ALJ cites several sets of medical
records for this statement, including some from York County Prison, a period where Plaintiff was
presumably sober during his incarceration. A review of the prison records indicates that Plaintiff
continued to suffer from and be treated for seizures and depression, as well a various physical
ailments.(Tr.412-523.) Once the Plaintiff made allegations of periodic sobriety and once the medical
record indicated a diagnosis of “partial remission” for substance abuse (Tr 569.), the ALJ had a duty
to clearly identify periods of sobriety and and to expressly evaluate Plaintiff’s function during those
times. He did not.
Third, there is no indication in the record that any treating, examining, or non-examining source3
has specifically given a medical opinion which projects the likely results of substance abuse cessation
on the severity and functional effects of Plaintiff’s physical impairments for work. Nor is there any
indication in the record that any medical opinion has been sought to interpret the medical evidence
concerning the separate effects of Plainitff’s treatment for substance abuse and co-occurring mental
disorder. See Vaughn v. Heckler, 741 F.2d 177, 179 (8th Cir. 1984) (It is incumbent upon the ALJ to
establish by medical evidence that the claimant has the requisite RFC. If a treating physician has not
issued an opinion which can be adequately related to the disability standard, the ALJ is obligated to
address a precise inquiry to the physician so as to clarify the record); 13-2p (“At the hearing and appeals
levels of the administrative review process, ALJ’s and the Appeals Council may seek assistance from
medical experts in interpreting the medical evidence regarding the separate effects of treatment for DAA
and a co-occurring mental disorder(s)).
Plaintiff submitted a “neuropsychological evaluation” by Dr. Vann Smith, PhD which did not include
Plaintiff’s substance abuse in his evaluation and indicated that the Plaintiff did not take any prescription drugs.
The ALJ properly discounted this opinion as inconsistent with the record as a whole pursuant to Johnson v.
Apfel, 240 F.3d 1145 (8th Cir. 2001). See also Flynn v. Astrue, 2012 WL 6209990, *4 (noting that several
courts have affirmed decisions where the ALJ gave little weight to or discounted the one-time examination
reports of Dr. Vann Smith).
Fourth, the ALJ failed to discuss the Plaintiff’s consistently low GAF scores or indicate why
they were not included in the analysis. While a GAF score alone is not determinative, the Eighth Circuit
Court of Appeals has recognized that GAF scores are relevant evidence in evaluating a disability claim.
See Pates-Fires v. Astrue, 564 F.3d 935, 944 (8th Cir. 2009) (a history of GAF scores at or below 50
indicates “serious impairment in social, occupational, or school functioning.”); Brueggemann , 348 F.3d
at 695 (a history of GAF score of 50 reflects a serious limitation on a claimant's ability to perform basic
life tasks; VE testified that an individual with a GAF score of 50 could not work); Viers v. Astrue, 582
F. Supp 1109 (N.D. Iowa 2008) (GAF score of 50 during periods of alleged sobriety and periods of
substance use required remand to fully develop the record)). In this case Plaintiff was assigned scores
of 50, 20, 31, 40, 48-58, 41, and 45 between 2008 to 2010. Given such consistently low scores, the ALJ
had a duty to at least consider them in his discussion of Plaintiff’s RFC. He did not.
Because the ALJ did not fully and fairly develop the record as to Plaintiff’s RFC in the event
that he stopped his substance abuse, a remand is necessary. On remand, The ALJ is directed to recontact
Dr. Bunting in order to more fully develop the record concerning her comment about organic brain
damage. The ALJ is also directed to order a consultative examination with a neurologist to evaluate if
the Plaintiff’s long-term substance abuse has produced permanent physical or mental damage, and if so,
what the effects of that damage are on Plainiff’s functional capabilities. The ALJ is also directed to
determine if there are any identifiable periods of sobriety, and to make the appropriate evaluation of
Plaintiff’s function during that time. Finally, the ALJ should include an express consideration of the
Plaintiff’s GAF scores in his post-remand opinion.
Plaintiff’s Neck Pain
Plaintiff argues that the ALJ erred by not including his degenerative neck disease to be a severe
impairment because the objective medical evidence for that was actually stronger than for his lower back.
(Pl.’s Br. 19-20.) We disagree.
Plaintiff testified that he had continual pain throughout the day in his neck and shoulders. (Tr.
50.) A CT scan on July 6, 2009 showed “anterior fusion of C5 and C6 vertebral bodies” and
“degenerative spurring at the C4-C5 and C6-C7 vertebral levels.” This is congruent with an MRI in 2001
and an X-ray in 2004, which both showed fusion at C5-C6. (Tr. 636, 384.) However, the records from
2001 and 2004 label the fusion as congenital, and, as the Commissioner pointed out, did not prevent him
from heavy work in the past. (Tr. 16.) Additionally, Plaintiff has only complained of neck pain once in
the record to a chiropractor in December of 2004 after a car accident in November of 2004. (Tr. 384.)
Further, the record is replete with physician exam notations of “neck normal” or “neck supple,” up to
and including Plaintiff’s last physical examination in the record on April 21, 2010. (Tr. 407, 531, 533,
542, 617, 621, 624, 670, 673, 685, 707, 721, 764, 837, 840, 849, 931.)
Because Plaintiff has not sought treatment for neck pain and the objective medical records do
provide evidence of any issues other than the congenital one at this time, the ALJ’s decision concerning
Plaintiff’s neck is supported by substantial evidence. See Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir.
2004) (holding that lack of objective medical evidence is a factor an ALJ may consider); Moad v.
Massanari, 260 F.3d 887, 892 (8th Cir. 2001) (in assessing credibility, the court noted that plaintiff had
not sought treatment from any physician in the seven months prior to administrative hearing).
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 31st day of January, 2014
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?