Beyers v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on August 23, 2011. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
CHRISTIE BEYERS

PLAINTIFF

V.

NO. 10-5132

MICHAEL ASTRUE,
Commissioner of the Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Christie Beyers, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying her claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) under the provisions of Titles II and XVI of the
Social Security Act (Act). 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:
Plaintiff protectively filed her applications for DIB and SSI on July 9, 2007, alleging an

inability to work since June 1, 2007, due to “bi-polar/schizophrenia/depression/anxiety” and back
pain. (Tr. 154, 158). For DIB purposes, Plaintiff maintained insured status through December
31, 2011. (Tr. 48). An administrative hearing was held on June 29, 2009, at which Plaintiff
appeared with counsel and testified. (Tr. 22-38).
By written decision dated November 23, 2009, the ALJ found that Plaintiff had an

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impairment or combination of impairments that were severe - polysubstance abuse; mood
disorder; and anxiety disorder. (Tr. 49). He also found that Plaintiff’s impairments, including
the substance use disorders, met sections 12.04, 12.06 and 12.09 of the Listing of Impairments
found in Appendix I, Subpart P, Regulation No. 4. (Tr. 50). The ALJ further found that if
Plaintiff stopped the substance use, the remaining limitations would cause more than a minimal
impact on Plaintiff’s ability to perform basic work activities; therefore, Plaintiff would continue
to have a severe impairment or combination of impairments. (Tr. 52).

However, the ALJ

further found that if the Plaintiff stopped the substance use, she would not have an impairment
or combination of impairments that met or medically equaled any of the impairments listed. (Tr.
52). The ALJ found that if Plaintiff stopped the substance use, she would have the residual
functional capacity (RFC) to:
perform a full range of work at all exertional levels but would have nonexertional
limitations and would have moderate limitations in maintaining social functioning and
concentration, persistence and pace. Moderately limited means that there is more than
a slight limitation but the person can perform in a satisfactory manner. The claimant
could perform work where interpersonal contact is incidental to the work performed and
where complexity of tasks is learned by rote with few variables and little judgment. The
supervision required would be simple, direct and concrete.
(Tr. 53). The ALJ found that if Plaintiff stopped the substance use, she would be unable to
perform past relevant work. (Tr. 56). Further, with the help of a vocational expert (VE), he
found that if Plaintiff stopped the substance use, considering her age, education, work
experience, and RFC, there would be jobs Plaintiff would be able to perform, such as kitchen
helper/dishwasher; packager, machine; and maid/hotel-motel. (Tr. 56). The ALJ concluded
that since Plaintiff would not be disabled if she stopped the substance use, her substance use
disorder was a contributing factor material to the determination of disability and thus, Plaintiff
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has not been disabled within the meaning of the Act at any time from the alleged onset date
through the date of the decision. (Tr. 58).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on June 23, 2010. (Tr. 1-3). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 5). Both
parties have filed appeal briefs, and the case is now ready for decision. (Docs. 8, 9).
II.

Evidence Presented:
Plaintiff was born in 1968 and her past work included receptionist, office manager,

hostess in a restaurant, customer service manager, and most recently, an income tax preparer.
(Tr. 159).
The medical evidence of record reflects that Plaintiff was admitted to Siloam Springs
Memorial Hospital on September 5, 2006, for anxiety and suicidal ideation. (Tr. 330). Plaintiff
was discharged from the hospital and transferred to Vista Health facility on September 9, 2006,
where she was treated until September 20, 2006. (Tr. 259-272). The admitting diagnosis at
Vista Health was: major depressive disorder, recurrent, severe, no psychotic features; panic
disorder with agoraphobia; withdrawal from Paxil by history; back pain, lumbar; and decreased
“rom” (range of motion) lumbar spine. (Tr. 272). On September 9, 2006, Richard A. Lloyd,
M.D. FAPA, with Vista Health, conducted an Inpatient Psychiatric Evaluation. (Tr. 273-275).
Dr. Lloyd noted that Plaintiff moved from Texas to Arkansas in December of 2005, and was
living with her mother, 19 year old brother, and a nephew. She was noted to have been married
and divorced twice, and was working at that time through a staffing agency as a receptionist. (Tr.
274). Plaintiff reported anxiety and panic attacks to Dr. Lloyd, and he noted that she was angry
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and irritable.

He found her level of intellectual functioning to be in the average range. His

diagnosis was:
Axis I:

Axis II:
Axis III:
Axis IV:

Axis V:

Major depression, recurrent, severe, without psychotic features
Panic Disorder with agoraphobia
Withdrawal from Paxil CR by history
No diagnosis
Low back pain
Problems with primary support group
Problems related to social environment
Problems related to interaction with legal system
GAF - 20 (on admission)

(Tr. 275). Dr. Lloyd found that Plaintiff’s prognosis for ongoing control of the presenting
symptoms was fair, and was in part dependent upon the willingness and ability of the patient to
participate in treatment, to comply with treatment recommendations, to take medication as
prescribed, and to abstain from the use of nonprescribed chemical substances. (Tr. 275).
On September 20, 2006, Plaintiff was discharged from Vista Health. (Tr. 259-262).
In the discharge summary, Dr. Donnie Joe Holden noted that Plaintiff was admitted to Vista
Health because of suicidal ideation, with a plan to drive her car off a bridge on highway 69, on
the way to Texas, while on pills. (Tr. 259). Dr. Holden reported that Plaintiff had used
methamphetamine for six years until November 2005, and was currently on four years probation
for possession of methamphetamine. Plaintiff had attempted to asphyxiate herself with carbon
monoxide one year prior to her admission to Vista Health. Three weeks prior to her admission,
she had abruptly discontinued Paxil CR, 25 mg., because she ran out of the medication. Plaintiff
had first used methamphetamine at the age of 30, and used it orally every day for 6 or 7 years.
(Tr. 259). At discharge from Vista Health, Plaintiff was able to attend AA (Alcoholics
Anonymous) and apparently was able to identify fairly well with it. She was voicing no
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suicidality or homicidality. Plaintiff appeared to be sufficiently improved to merit discharge.
(Tr. 261). The final diagnosis was:
Axis I:
Axis II:
Axis III:
Axis IV:
Axis V:

Major depressive disorder, severe, without psychotic features
Panic disorder with agoraphobia
None
Chronic pain, low back
Primary support system
GAF 20 on admission, GAF 41 on discharge, GAF past year 0.

(Tr. 261).
Plaintiff began outpatient therapy at Ozark Guidance, Inc., on September 25, 2006, and
Donna Copeland, EDS, LPC, LMFT, diagnosed Plaintiff with:
Axis I:

Axis II:
Axis III:
Axis IV:

Axis V:

Major depressive disorder, severe without psychotic features
Panic disorder with agoraphobia
Generalized anxiety disorder, rule out
Amphetamine abuse - reports sustained full remission
Diagnosis deferred on Axis II
None known for Axis III - back pain
Problems with primary support group - poor choices in relationships, just
broke up with boyfriend[;] traumatic divorce in Texas 1 ½ years ago[;]
Problems related to social environment - few friends, little peer support[;]
Occupational problems - too anxious to stay at work; lost job at Gates due
to psychiatric hospitalization.
GAF 42

(Tr. 297). It was noted that Plaintiff’s thought processes might have been impacted by six years
of daily use of methamphetamine, and that Plaintiff “has been clean about 1 year in November.”
(Tr. 300). Plaintiff continued to have outpatient treatment at Ozark Guidance, Inc., through 2006
and 2007, and on April 20, 2007, Plaintiff presented with excessive anxiety. (Tr. 287). She had
been fired two weeks prior to the visit, and had an increase of symptoms along with memory loss
and “talking as if she had not lost her job.” (Tr. 287). Plaintiff’s family was concerned since
there was a history of stroke in the family, and Plaintiff fell asleep on the sofa and they noticed
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one side of her face seemed to draw down from eye to mouth. (Tr. 287). On June 6, 2007,
Plaintiff presented herself to Ozark Guidance, Inc., with her mother, and told Diane H. Lyddon,
MNSC, APN, that she was about to have a nervous breakdown. (Tr. 282). Plaintiff reported that
she was not taking the Desipramine any longer and had been out of Lexapro for about 3 weeks.
(Tr. 282).
On June 28, 2007, Plaintiff was taken to Siloam Springs Memorial Hospital because she
had taken six Klonopin within a short period of time. (Tr. 377-378). According to the hospital
report, Plaintiff denied suicidal ideation and stated that she took six Klonopin, “hoping for the
rush.” (Tr. 378). The clinical impression was “drug ingestion.” (Tr. 379). On June 29, 2007,
Dr. Theresa Farrow, of Ozark Guidance, Inc. reported that Plaintiff had been using Klonopin in
an addictive fashion, and that she had taken 12 mg. of Klonopin in about 3 hours, to stop the
panic. Dr. Farrow assessed Plaintiff with bipolar II, panic, substance abuse, with OD (overdose)
the previous night due to addictive patterns of use of Klonopin - not suicidal. (Tr. 280).
On July 5, 2007, Dr. Farrow reported that Plaintiff was doing much better, but also
reported that Plaintiff’s parents called her and stated that Plaintiff was taking Seroquel “way too
much, was very agitated, and totally out of control.” (Tr. 279). Plaintiff apparently refused to
be hospitalized, but her family took total control of her medications and “did a confrontation.”
She was thereafter doing much better. (Tr. 279). On August 3, 2007, Dr. Farrow reported that
Plaintiff was much worse again. (Tr. 277). One of Plaintiff’s friends, who was a nurse, gave
Plaintiff Xanax, which Plaintiff thought helped more than the Klonopin. (Tr. 277). On August
5, 2007, Plaintiff was taken to Siloam Springs Memorial Hospital for a drug overdose. (Tr. 390).
She had been found unresponsive, and was found to be poisoned by methadone. (Tr. 390). In
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the Internal Medicine History and Physical, Plaintiff admitted taking methadone, which she
received “from a friend.” (Tr. 419). On August 10, 2007, Plaintiff was discharged from the
hospital and transferred to Vista Health for inpatient mental health services. (Tr. 393). At Vista
Health, on August 11, 2007, Plaintiff reported that “I took too much Methadone.” (Tr. 487).
The diagnosis upon admission was:
Axis I:

Axis II:
Axis III:
Axis IV:
Axis V:

Primary Psychiatric Diagnosis
Bipolar type II by history
Generalized anxiety disorder
Substance abuse
Personality factors - None
Physical Factors - Status post methadone overdose
Psychosocial stressors - substance abuse problems
GAF 20. Highest in the past year 65

(Tr. 489-490). Her prognosis was reported as fair. (Tr. 490). On August 23, 2007, Plaintiff was
discharged from Vista Health. (Tr. 484-486). Plaintiff reported that her anti-depressant
medications and her anti-anxiety medications were not working, and she started to increasingly
use recreational drugs, including Oxycodone and Methadone, several times per week. (Tr. 484).
At discharge, Plaintiff was reported as doing well. She said that she was not having anxiety or
depressive symptoms, and denied a craving for drugs or alcohol. (Tr. 484, 487). The symptoms
of depression and anxiety improved slowly and gradually, and after the first week of
hospitalization, Plaintiff said she was not depressed or anxious. She did not have any panic
attacks, and seemed to be very calm and quiet. (Tr. 485).
On August 24, 2007, Plaintiff met with Dr. Farrow at Ozark Guidance, Inc. She was
clean and sober and going to meetings. (Tr. 500). Plaintiff did, however, ask if she could have
Klonopin. (Tr. 500). Dr. Farrow noted on the record that Plaintiff was to “get no more addictive

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medications here.” (Tr. 500). On September 20, 2007, Donna Copeland saw Plaintiff and
reported that she presented with a flat affect and staring eyes. Plaintiff reported to her that she
was not slipping back into using again, but that she was not going to meetings. (Tr. 505).
On October 1, 2007, a Psychiatric Review Technique was completed by Kay M. Gale,
wherein it was found that Plaintiff suffered from affective disorders, such as depression NOS;
anxiety-related disorders, such as recurrent severe panic attacks manifested by a sudden
unpredictable onset of intense apprehension, fear, terror, and a sense of impending doom
occurring on the average of at least once a week; and substance addiction disorder. (Tr. 511516). Dr. Gale found Plaintiff had a mild degree of limitation in her restriction of daily living
activities and in difficulties in maintaining social functioning and concentration, persistence, or
pace, and that Plaintiff has had one or two episodes of decompensation, each of extended
duration. (Tr. 521). Dr. Gale found that the current medical records indicated that Plaintiff was
feeling better, was sustaining abstinence, and was therefore capable of unskilled work. (Tr. 523).
Dr. Gale also completed a Mental RFC Assessment on October 1, 2007, and found that Plaintiff
was not significantly limited in 15 out of 20 categories, and was moderately limited in 5 out of
20 categories. (Tr. 525). She found that Plaintiff was able to “perform work where interpersonal
contact is incidental to work performed, e.g. assembly work; complexity of tasks is learned and
performed by rote, with few variables, uses little judgment; supervision required is simple, direct
and concrete. Unskilled work.” (Tr. 527).
On February 29, 2008, Plaintiff reported to Dr. Farrow that she was just released from
St. John’s in Joplin after an overdose.1 (Tr. 672). She was released from the hospital on
1

There were no medical records of this hospital visit.

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Klonopin, Buspar, Ambien, Neurontin, and Seroquel, and told Dr. Farrow that she wanted to stay
on these medications. (Tr. 672). On March 21, 2008, when Plaintiff next saw Dr. Farrow, she
reported that she slept better and was calmer on the Seroquel. She also tried to get Dr. Farrow
to prescribe Klonopin. (Tr. 671). However, Dr. Farrow believed that Plaintiff was still using
drugs, and was drug-seeking. (Tr. 671). Dr. Farrow continued to believe Plaintiff was still using
and drug seeking on April 21, 2008. (Tr. 666). On May 21, 2008, Diane H. Lyddon also felt that
Plaintiff was perhaps still drug-seeking. (Tr. 663).
On July 23, 2008, Dr. Farrow diagnosed Plaintiff with:
Axis 1

Axis 2
Axis 3
Axis 4

Axis 5

Panic disorder with agoraphobia
Generalized anxiety disorder, rule out
Amphetamine abuse - reports sustained full remission
Bipolar II disorder
Most recent episode depressed
Diagnosis deferred
back pain
problems with primary support group - poor choices in
relationships,[;] just broke up with boyfriend[;] traumatic divorce
in Texas 1 ½ years ago
Few friends, little peer support
too anxious to stay at work; lost job at Gates due to psychiatric
hospitalization
financial worries with no job or source of income
GAF 42

(Tr. 657). On August 12, 2008, Dr. Farrow reported that Plaintiff had discovered that when she
took 800 mg. of Seroquel, she would become impaired, so she was taking 400 mg., and it was
working well. (Tr. 656). On August 14, 2008, Donna Copeland reported that Plaintiff was more
withdrawn. (Tr. 654).
On August 22, 2008, an Order of Involuntary Admission to Decision Point was entered
by “Benton County Circuit Court Act 10.” (Tr. 58). Plaintiff was sent to Decision Point for
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detoxification.

(Tr. 600).

Upon admission, Plaintiff reported a history of using

methamphetamine, marijuana, cocaine, morphine, Hydrocodone, Oxycodone, Xanax, Klonopin,
and Ativan, and smoked ½ pack of cigarettes daily. (Tr. 549-550). At that time, she was taking
Seraquel, Lexapro, Neurontin, Ambien, and Klonopin. (Tr. 552). Plaintiff reported being
convicted of forgery of a prescription in the previous 12 months, and was on probation. (Tr.
553). Plaintiff was diagnosed at Decision Point with:
Axis I:
Axis II:
Axis III:
Axis IV:
Axis V:

Sedative, Hypnotic, or Anxiolytic2 Dependence
Bi-polar disorder, panic disorder, anxiety disorder
Schizophrenia
Back injury, migraines
Problems in social environment, occupational problems, problems
interacting with the legal system
GAF 40

(Tr. 602). On October 17, 2008, Plaintiff received a Certificate of Completion - Residential
Substance Abuse Treatment - from Decision Point. (Tr. 640-641).
On October 28, 2008, Plaintiff met with Donna Copeland, and although she was very
well groomed, she was using many repetitive movements throughout the session, and had a
jerkiness in her body language. (Tr. 652). Plaintiff denied she had been “using,” but her hand
movements and jerkiness was noted by Ms. Copeland to sometimes accompany the use of
methamphetamine or other stimulants. (Tr. 652).
On November 21, 2008, Dr. Farrow completed a Supplemental Questionnaire on RFC
of the Mentally Impaired Claimant. (Tr. 253-255, 647-649). In Dr. Farrow’s supplement, she
found Plaintiff had a marked degree of impairment in her ability to respond appropriately to

2

Anxiolytic - 1. Antianxiety. 2. Antianxiety agent. Dorland’s Illustrated Medical Dictionary 113 (31st ed.
2007).

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supervision, in her ability to function independently on the job, in her ability to complete a
normal workday, and in her ability to concentrate and attend to a task over an eight-hour period.
Dr. Farrow found Plaintiff suffered from an extreme degree of impairment in her ability to
exercise appropriate judgment and her ability to perform routine tasks on a regular and reliable
basis without frequent absences. (Tr. 254-255). Also on November 21, 2008, Dr. Farrow found
Plaintiff was doing much better and had been clean and sober for 86 days. (Tr. 651).
On January 26, 2009, Plaintiff met with Donna Copeland, who reported that she was
concerned that Plaintiff was not being forthright about her progress. She found that Plaintiff
continued to demonstrate some symptoms that might be related to stimulant use, such as jerking.
(Tr. 693). Ms. Copeland encouraged Plaintiff to continue going to meetings and fulfilling her
obligations. (Tr. 693).
On July 29, 2009, a Mental Diagnostic Evaluation was conducted by Dr. Terry Efird, at
the request of the Social Security Administration. (Tr. 696-701). Dr. Efird noted some
inconsistencies in Plaintiff’s information, and that the manner in which the information was
presented almost gave him the impression of some type of recitation. (Tr. 696). Plaintiff told
Dr. Efird that she was taking her medication as prescribed, and side effects were denied. (Tr.
697). However, Plaintiff denied that her medications were beneficial. She described Klonopin
as the only medication that helped her anxiety, and asked Dr. Efird if he could write her a
prescription for it. (Tr. 697). Plaintiff denied the use of illegal substances. (Tr. 698). Dr. Efird
reported that at one point in the evaluation, when he was typing some information into the
computer, Plaintiff spontaneously stated “Lisa shut up” and that Lisa was reportedly Plaintiff’s
“friend.” (Tr. 698). He also reported that Plaintiff appeared somewhat vague about the history
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of substance abuse and forging prescriptions. (Tr. 698). Plaintiff indicated that “Lisa” showed
up when she was in jail in April of 2009, and that Lisa reportedly followed her around. Dr. Efird
found that drug-seeking behavior certainly appeared to be a possibility.

(Tr. 699). Since

Plaintiff appeared to have some remarkable mental difficulties, and there were a number of
inconsistencies which raised questions regarding the reliability and validity of the reported
information, Dr. Efird felt that estimating a GAF was quite difficult and that the current
information “should be viewed with a degree of skepticism.” (Tr. 700). Dr. Efird diagnosed
Plaintiff with:
Axis I:
Axis II:
Axis V:

Major depressive disorder, severe, with psychotic features; panic
disorder, with agoraphobia
Personality disorder, NOS (cluster B and C traits)
GAF 45-55

(Tr. 700). Dr. Efird found that Plaintiff’s ability to perform most daily activities was impaired
by motivation, and that Plaintiff had the capacity to perform basic cognitive tasks required by
basic work- like activities. (Tr. 700).
On July 31, 2009, Dr. Efird prepared a Medical Source Statement of Ability to do WorkRelated Activities (Mental). He found that Plaintiff had a moderate to marked ability to
understand and remember complex instructions and to carry out complex instructions, and to
make judgment on complex work-related decisions. (Tr. 702). He also found that Plaintiff’s
judgment appeared to be impaired, and that Plaintiff had a moderate ability to interact
appropriately with the public, supervisors, co-workers, and to respond appropriately to usual
work situations and changes in a routine work setting. (Tr. 703). He noted that Plaintiff had a
fairly extensive history of methamphetamine abuse, and mentioned having been abstinent for

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about 3.5 years. However, he also noted that Plaintiff had been arrested for forging a
prescription, and had asked him for a prescription for Klonopin. “Therefore, questions remain.”
(Tr. 703).
In an undated Disability Report - Adult, Plaintiff stated that the illnesses that limited her
ability to work were “bi-polar/schizophrenia/depression/anxiety” and that “The Meth has fried
my brain.” (Tr. 158). She reported that her counselor told her that her anxiety would never go
away, and that she took medication, but that her mother had to give it to her because she wanted
to take more than prescribed because “I want that high.” (Tr. 158). She reported that she also
had back problems, but that she could not afford to get the operation she needed. (Tr. 158).
Plaintiff reported that during the day, she did not do much other than go to the restroom, hang
around, and go to bed. (Tr. 184). She reported that she did not have any problem with personal
care, but needed help taking her medicine. (Tr. 185-186). She reported that she did the laundry
and dishes and went outside at least once a day. (Tr. 186-187).
At the hearing held on June 29, 2009, Plaintiff stated that what was keeping her from
being able to work was her nerves - that she heard voices all the time. (Tr. 29). She stated that
she was taking medication to control her illnesses, and that sometimes they controlled them, but
not to the full extent. (Tr. 2(). She reported having anxiety attacks at least once every two
weeks. (Tr. 30). She also testified that she had been able to control the suicidal ideations. (Tr.
33).
III.

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.
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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 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)(D). A Plaintiff must show that her disability, not simply her 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 had engaged in substantial
gainful activity since filing her claim; (2) whether the claimant had a severe physical and/or
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mental impairment or combination of impairments; (3) whether the impairment(s) met or equaled
an impairment in the listings; (4) whether the impairment(s) prevented the claimant from doing
past relevant work; and (5) whether the claimant was able to perform other work in the national
economy given her age, education, and experience. See 20 C.F.R. §416.920. Only if the final
stage is reached does the fact finder consider the Plaintiff’s age, education, and work experience
in light of her residual functional capacity (RFC). See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
IV.

Discussion:
Plaintiff argues that the ALJ’s decision denying Plaintiff disability benefits was not

supported by substantial evidence. Plaintiff also argues that the ALJ committed reversible error
when he wrongfully concluded that if the Plaintiff stopped the substance abuse, she would not
meet a listing-level severity. (Doc. 8 at p. 4).
In a case such as this, where the medical records indicate Plaintiff’s drug addiction, 20
C.F.R. § § 404.1535(b), 416.935(b) provide:
(1) The key factor we will examine in determining whether drug addiction or alcoholism
is a contributing factor material to the determination of disability is whether we would
still find you disabled if you stopped using drugs or alcohol.
(2) In making this determination, we will evaluate which of your current physical and
mental limitations, upon which we based our current disability determination, would
remain if you stopped using drugs or alcohol and then determine whether any or all of
your remaining limitations would be disabling.
(i) If we determine that your remaining limitations would not be disabling, we will find
that your drug addiction or alcoholism is a contributing factor material to the
determination of disability.
(ii) If we determine that your remaining limitations are disabling, you are disabled
independent of your drug addiction or alcoholism and we will find that your drug
addiction or alcoholism is not a contributing factor material to the determination of
disability.

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In the present case, the ALJ properly followed the process outlined above in finding that
Plaintiff’s drug addiction was a contributing factor material to the determination of disability.
A. Impairments:
Plaintiff contends that based on the medical evidence of record, she would meet a listing
without the substance use. (Doc. 8 at p. 5). The Court disagrees. The ALJ properly noted, and
the medical records support, that if Plaintiff stopped the substance use, the remaining limitations
of mood disorder and anxiety would not meet or medically equal the criteria of listings 12.04 or
12.06. The ALJ found that in terms of “paragraph B” criteria, Plaintiff would have mild
restriction in activities of daily living if the substance use was stopped. He referenced Plaintiff’s
condition while at Decision Point on September 27, 2008, indicating Plaintiff was neat in
appearance and had good eye contact. Toward the end of her stay at Decision Point, it was noted
that Plaintiff attended all sessions with good progress, maintained abstinence for a period of 42
consecutive days, verbalized acceptance of her diagnoses, completed all treatment plan goals,
was consistently involved in the 12-step community, identified maladaptive behavioral patterns
and solutions to same, established a sound aftercare plan promotive of her continued recovery,
demonstrated the ability to apply effective problem solving skills, and that her prognosis was
good. (Tr. 639). Plaintiff also reported to Dr. Efird that she could drive unfamiliar routes, shop
independently, handle personal finances, and go swimming and fishing with her boyfriend
regularly. (Tr. 700). The Court agrees with the ALJ that in terms of social functioning, Plainitff
had only moderate difficulties, when not engaging in substance abuse. The same can be said for
Plaintiff’s concentration, persistence or pace. The records from Decision Point referenced above
prove that when Plaintiff stopped the substance abuse, she was able to complete assignments and
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treatment goal plans.
In her Psychiatric Review Technique form, completed on October 1, 2007, Dr. Gale
found that Plaintiff had mild degree of limitation in restriction of activities of daily living;
moderate degree of limitation in difficulties in maintaining social functioning and concentration,
persistence , or pace, and had one or two episodes of decompensation, each of extended duration.
She further found that the current medical records indicated Plaintiff was feeling better and was
sustaining abstinence and was capable of unskilled work. In her Mental RFC Assessment, Dr.
Gale found Plaintiff was able to perform work where interpersonal contact was incidental to
work performed, for example, assembly work; where complexity of tasks was learned and
performed by rote, with few variables, where little judgment was used; and where supervision
required was simple, direct and concrete. On July 31, 2009, Dr. Efird, in his mental Diagnostic
Evaluation, found that Plaintiff had the capacity to perform basic cognitive tasks required for
basic work-like activities. He felt that Plaintiff’s ability to perform most daily activities was
impaired by motivation. All during the relevant time period, except when Plaintiff was
hospitalized or was treated in a facility, Plaintiff was able to perform household chores and
handle her personal care. By the end of Plaintiff’s stay at Decision Point, the records show that
Plaintiff completed her assignments and all treatment goal plans.
Finally, although Plaintiff’s initial hospitalizations in June and September of 2006 related
to abdominal cramps, depression, and suicidal ideation, and in February of 2007 for upper
respiratory infection, all of Plaintiff’s subsequent hospitalizations related to substance abuse.
Accordingly, the Court believes that Plaintiff has failed to meet her burden of proving
that, absent her drug abuse, she either met or equaled the criteria of Listing 12.04 or 12.06, and
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that there is substantial evidence to support the ALJ’s determination that, absent Plaintiff’s
substance abuse, Plaintiff’s mood disorder and anxiety would not meet or medically equal the
criteria of Listings 12.04 or 12.06.
B.

Subjective Complaints and Credibility Analysis:

The ALJ found that if the Plaintiff stopped the substance use, the Plaintiff’s medically
determinable impairments could reasonably be expected to produce the alleged symptoms.
However, he found that Plaintiff’s statements concerning the intensity, persistence and limiting
effects of the symptoms were not credible to the extent they were inconsistent with the RFC
assessment.
In Polaski v. Heckler, 739 F.3d 1320, 1322 (8th Cir. 1984), the Eighth Circuit Court of
Appeals stated that the ALJ may discredit subjective complaints of pain if there are
inconsistencies in the evidence as a whole. Id. The factors the ALJ is to consider when
determining if the Plaintiff’s complaints of pain are credible include: the absence of an objective
medical basis that supports the severity of the subjective complaints; Plaintiff’s daily activities;
the duration, frequency, and intensity of the Plaintiff’s pain; precipitating and aggravating
factors; the dosage, effectiveness and side effects of medication; and functional restrictions.
Id. If the ALJ discredits the testimony and explicitly gives good reason for doing so, the Court
is bound by the ALJ’s judgment unless it is not supported by substantial evidence on the record
as a whole. Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); see also Bradley v. Astrue,
528 F.3d 1113, 1115 (8th Cir. 2008); Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007).
In February of 2007, Plaintiff reported that she had not had a panic attack since
Christmas, and had no urges to use drugs. She attended church regularly and had new friends
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who did not use drugs. However, on June 28, 2007, Plaintiff was hospitalized for drug ingestion,
stating that she took six Klonopin, hoping for the rush. Dr. Farrow opined that Plaintiff had been
using Klonopin in an addictive fashion. On July 5, 2007, although Plaintiff reported to Dr.
Farrow that she was doing much better, her parents reported that she was taking Seroquel too
much, was very agitated, and was totally out of control. In 2008, Dr. Farrow, Diane Lyddon and
Donna Copeland noted that although Plaintiff denied drug abuse, she appeared to be drugseeking, and her body language was similar to one who used methamphetamine or other
stimulants. Plaintiff was ordered to treatment and hospitalized in the detoxification unit at
Decision Point on August 25, 2008. On July 29, 2009, although Plaintiff denied use of illegal
substances, she asked Dr. Efird if he could write her a prescription for Klonopin. Dr. Efird stated
that drug seeking behavior certainly appeared to be a possibility.
The Court finds that there is substantial evidence to support the ALJ’s conclusion that
Plaintiff’s subjective complaints were not totally credible.
C.

RFC Assessment:

The ALJ found that if Plaintiff stopped the substance use, she would have the RFC to
perform a full range of work at all exertional levels, with certain limitations. RFC is the most
a person can do despite that person’s limitations. 20 C.F.R. §404.1545(a)(1). It is assessed using
all relevant evidence in the record. Id. This includes medical records, observations of treating
physicians and others, and the claimant’s own description of her limitations. Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th
Cir. 2004). Limitations resulting from symptoms such as pain are also factored into the
assessment. 20 C.F.R. § 404.1545(a)(3). The Eighth Circuit has held that a “claimant’s residual
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functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001).
Therefore, an ALJ’s determination concerning a claimant’s RFC must be supported by medical
evidence that addresses the claimant’s ability to function in the workplace.” Lewis v. Barnhart,
353 F.3d 642, 646 (8th Cir. 2003). “The ALJ is [also] required to set forth specifically a
claimant’s limitations and to determine how those limitations affect his RFC.” Id.
In the present case, the ALJ relied heavily on the observations/reports made during
Plaintiff’s two hospitalizations, when she did not have access to illegal and/or unauthorized
prescription medications, since he found that most of the records, except for her hospitalization,
indicated the possibility of ongoing polysubstance abuse. He accurately noted that when Plaintiff
was hospitalized in August of 2007, after the first week of hospitalization, she had no panic
attacks, seemed to be very calm and quiet, and was able to establish meaningful interactions with
other individuals. He also accurately relied upon records from Decision Point in August 2008,
which show that Plaintiff reported tremors, acute anxiety or other features of withdrawal upon
cessation of substance use. The ALJ further found:
By September 10, 2008, the claimant reported that she was feeling much better, and
records after that time show that she was neat in appearance and had good eye contact,
that she attended all sessions with moderate progress and that she completed her
treatment plan goals, including assignments. At the time of her discharge, it was noted
that claimant had maintained abstinence for a period of 42 consecutive days and that she
had demonstrated the ability to apply effective problem solving skills.
(Tr. 55). The ALJ stated that he considered the opinions of the state agency medical consultants
who provided assessments at the initial and reconsideration levels and concurred with their
opinions absent polysubstance abuse. He also considered the Supplemental Questionnaires of
Dr. Farrow and Ms. Copeland, and found them to be inconsistent with the record as a whole

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absent the Plaintiff’s polysubstance abuse. The Court believes this finding was supported by the
evidence, since Dr. Farrow and Ms. Copeland both suspected that in spite of Plaintiff’s
statements to the contrary, Plaintiff might still be using some type of stimulant and was still
drug-seeking. The ALJ did not give Dr. Efird’s opinion controlling weight, based on Dr. Efird’s
own statement that several questions regarding the reliability and validity of reported information
were raised.
After reviewing all of the evidence of record, the Court finds that the ALJ properly
addressed the various opinions and gave sufficient reasons as to why he did or did not give them
weight. Accordingly, the Court finds substantial evidence to support the ALJ’s RFC findings.
D.

Hypothetical Proposed to Vocational Expert

The ALJ proposed the following written hypothetical to the VE:
Please assume a hypothetical person (younger individual) with high school education and
the same work history as the claimant. This person has moderate limitations in
maintaining social functioning and concentration, persistence and pace. Moderately
limited means that there is more than a slight limitation but the person can perform in a
satisfactory manner. She can perform work where interpersonal contact is incidental to
the work performed, complexity of tasks is learned by rote, with few variables and little
judgment. Supervision required is simple, direct, and concrete. Assume there is no past
relevant work to which the person can return and that transferable skills are not an issue.
Are there jobs in the national and regional economy this person can do? If so, please list
examples, three if possible, along with DOT identification, and relevant numbers in the
state and national economies.
1. Kitchen helper/dishwasher
2. Packager, machine
3. Maid/hotel-motel
(Tr. 250-251).
After thoroughly reviewing the hearing transcript, along with the entire evidence of
record, the Court finds that the hypothetical the ALJ proposed to the VE fully set forth the

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impairments which the ALJ accepted as true and which were supported by the record as a whole.
See Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005). Accordingly, the Court finds that the
VE’s response constitutes substantial evidence supporting the ALJ’s conclusion that if Plaintiff
stopped the substance use, there are jobs in the national economy that Plaintiff would be able to
perform.
V.

Conclusion:
Accordingly, having carefully reviewed the record, the undersigned finds substantial

evidence supporting the ALJ’s decision denying the Plaintiff benefits, and affirms the ALJ’s
decision. Plaintiff’s complaint is dismissed with prejudice.
IT IS SO ORDERED this 23rd day of August, 2011

/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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