Barkley v. Astrue

Filing 24

OPINION; decision of the ALJ is reversed and remanded for further proceedings consistent with this Opinion. Signed by Judge Noel L. Hillman on 6/28/2012. (bkb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
----------------------------------:
ERIC Q. BARKLEY, SR.,
:
:
Plaintiff,
: CIVIL NO. 10-1007(NLH)
:
v.
:
:
OPINION
COMMISSIONER OF
:
SOCIAL SECURITY,
:
:
Defendant.
:
:
----------------------------------APPEARANCES:
John S. Grady
Grady & Hampton
6 North Bradford Street
Dover, DE 19904
Attorney for Plaintiff
Dina White Griffin
Patricia Anne Stewart
Social Security Administration - Region III
300 Spring Garden Street
Philadelphia, PA 19123
Attorney for Defendant
HILLMAN, District Judge
This matter comes before the Court pursuant to Section
205(g) of the Social Security Act, as amended, 42 U.S.C. §
405(g), to review the final decision of the Commissioner of the
Social Security Administration, denying the application of
Plaintiff for Disability Insurance Benefits and Supplemental
Security Income (“Social Security benefits”) under Title II and
Title XVI of the Social Security Act.

42 U.S.C. § 401, et seq.

The issue before the Court is whether the Administrative Law
Judge (“ALJ”) erred in finding that there was “substantial
evidence” that Plaintiff was not disabled at any time since his
alleged onset date of disability, June 12, 2003.

For the reasons

stated below, this Court will reverse that decision and remand
the case for further proceedings.
I.

BACKGROUND AND PROCEDURAL HISTORY
Plaintiff, Eric Q. Barkley, Sr., claims that he has been

unable to work since June 12, 2003, when he left his job as a
nursing assistant, because of his several mental disorders,
including depression, OCD, hyperexplosive disorder, and bipolar
disorder.

Since that time, Plaintiff has been on numerous

prescription medications in an attempt to control his mental
disorders.

Plaintiff has also struggled with back pain and

substance abuse, and he has also attempted suicide.
Plaintiff filed an application for disability benefits.
After a hearing before an ALJ, it was determined that Plaintiff
was not disabled.

Plaintiff appealed the decision, and the

Appeals Council reversed the ALJ's decision and remanded the case
for further review.

After another hearing, the ALJ again

determined that Plaintiff was not disabled.

Plaintiff appealed

that decision as well, but the Appeals Council denied Plaintiff’s
request for review.

The ALJ's second decision became final, and
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Plaintiff now seeks this Court’s review.
II.

DISCUSSION
A.

Standard of Review

Under 42 U.S.C. § 405(g), Congress provided for judicial
review of the Commissioner’s decision to deny a complainant’s
application for Disability Insurance Benefits.
Shalala, 55 F.3d 900, 901 (3d Cir. 1995).

Ventura v.

A reviewing court must

uphold the Commissioner’s factual decisions where they are
supported by “substantial evidence.”

42 U.S.C. §§ 405(g),

1383(c)(3); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir.
2001); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000); Williams
v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
evidence means more than “a mere scintilla.”

Substantial

Richardson v.

Perales, 402 U.S. 389, 401 (1971)(quoting Consolidated Edison Co.
V. NLRB, 305 U.S. 197, 229 (1938)).

It means “such relevant

evidence as a reasonable mind might accept as adequate to support
a conclusion.”

Id.

The inquiry is not whether the reviewing

court would have made the same determination, but whether the
Commissioner’s conclusion was reasonable.

See Brown v. Bowen,

845 F.2d 1211, 1213 (3d Cir. 1988).
A reviewing court has a duty to review the evidence in its
totality.

See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984).

“[A] court must ‘take into account whatever in the record fairly
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detracts from its weight.’” Schonewolf v. Callahan, 972 F. Supp.
277, 284 (D.N.J. 1997) (quoting Willbanks v. Secretary of Health
& Human Servs., 847 F.2d 301, 303 (6th Cir. 1988) (quoting
Universal Camera Corp. V. NLRB, 340 U.S. 474, 488 (1951)).
The Commissioner “must adequately explain in the record his
reasons for rejecting or discrediting competent evidence.”

Ogden

v. Bowen, 677 F. Supp 273, 278 (M.D. Pa. 1987) (citing Brewster
v. Heckler, 786 F.2d 581 (3d Cir. 1986)).

The Third Circuit has

held that an “ALJ must review all pertinent medical evidence and
explain his conciliations and rejections.”

Burnett v. Comm’r of

Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).

Similarly,

an ALJ must also consider and weigh all of the non-medical
evidence before him.

Id. (citing Van Horn v. Schweiker, 717 F.2d

871, 873 (3d Cir. 1983)); Cotter v. Harris, 642 F.2d 700, 707 (3d
Cir. 1981).
The Third Circuit has held that access to the Commissioner’s
reasoning is indeed essential to a meaningful court review:
Unless the [Commissioner] has analyzed all
evidence and has sufficiently explained the
weight he has given to obviously probative
exhibits, to say that his decision is
supported by substantial evidence approaches
an abdication of the court’s duty to
scrutinize the record as a whole to determine
whether the conclusions reached are rational.
Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978).

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Although an

ALJ, as the fact finder, must consider and evaluate the medical
evidence presented, Fargnoli, 247 F.3d at 42, “[t]here is no
requirement that the ALJ discuss in its opinion every tidbit of
evidence included in the record,” Hur v. Barnhart, 94 Fed. Appx.
130, 133 (3d Cir. 2004).

In terms of judicial review, a district

court is not “empowered to weigh the evidence or substitute its
conclusions for those of the fact-finder.”
1182.

Williams, 970 F.2d at

Moreover, apart from the substantial evidence inquiry, a

reviewing court is entitled to satisfy itself that the
Commissioner arrived at his decision by application of the proper
legal standards.

Sykes, 228 F.3d at 262; Friedberg v. Schweiker,

721 F.2d 445, 447 (3d Cir. 1983); Curtin v. Harris, 508 F. Supp.
791, 793 (D.N.J. 1981).
B.

Standard for Disability Insurance Benefits

The Social Security Act defines “disability” for purposes of
an entitlement to a period of disability and disability insurance
benefits as the inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death, or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.
1382c(a)(3)(A).

See 42 U.S.C. §

Under this definition, a Plaintiff qualifies as

disabled only if his physical or mental impairments are of such
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severity that he is not only unable to perform his past relevant
work, but cannot, given his age, education, and work experience,
engage in any other type of substantial gainful work which exists
in the national economy, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific
job vacancy exists for him, or whether he would be hired if he
applied for work.

42 U.S.C. § 1382c(a)(3)(B)(emphasis added).

The Commissioner has promulgated regulations for determining
disability that require application of a five-step sequential
analysis.

See 20 C.F.R. § 404.1520.

This five-step process is

summarized as follows:
1.

If the claimant currently is engaged in substantial
gainful employment, he will be found “not disabled.”

2.

If the claimant does not suffer from a “severe
impairment,” he will be found “not disabled.”

3.

If the severe impairment meets or equals a listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1
and has lasted or is expected to last for a continuous
period of at least twelve months, the claimant will be
found “disabled.”

4.

If the claimant can still perform work he has done in
the past (“past relevant work”) despite the severe
impairment, he will be found “not disabled.”

5.

Finally, the Commissioner will consider the claimant’s
ability to perform work (“residual functional
capacity”), age, education, and past work experience to
determine whether or not he is capable of performing
other work which exists in the national economy. If he
is incapable, he will be found “disabled.” If he is
capable, he will be found “not disabled.”
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20 C.F.R. § 404.1520(b)-(f).

Entitlement to benefits is

therefore dependent upon a finding that the claimant is incapable
of performing work in the national economy.
This five-step process involves a shifting burden of proof.
See Wallace v. Secretary of Health & Human Servs., 722 F.2d 1150,
1153 (3d Cir. 1983).

In the first four steps of the analysis,

the burden is on the claimant to prove every element of his claim
by a preponderance of the evidence.

See id.

In the final step,

the Commissioner bears the burden of proving that work is
available for the Plaintiff: “Once a claimant has proved that he
is unable to perform his former job, the burden shifts to the
Commissioner to prove that there is some other kind of
substantial gainful employment he is able to perform.”

Kangas v.

Bowen, 823 F.2d 775, 777 (3d Cir. 1987); see Olsen v. Schweiker,
703 F.2d 751, 753 (3d Cir. 1983).
C.

Analysis

In her decision, the ALJ found that Plaintiff has not
engaged in substantial gainful activity since the alleged onset
of disability (Step One).

The ALJ next found Plaintiff’s

degenerative disc disease, schizoaffective disorder, bipolar
disorder, and substance addiction disorder to be severe (Step
Two).

The ALJ then found that even though Plaintiff’s

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impairments did not meet the medical equivalence criteria (Step
Three), he was not capable of performing past relevant work (Step
Four).

The ALJ found, however, that Plaintiff had the residual

functional capacity (RFC) to perform a modified range of
unskilled, light work jobs which are in significant numbers in
the national economy (Step Five).
Plaintiff presents one main arguments for review: whether
the ALJ erred by not obtaining a medical expert to determine if
Plaintiff's mental impairments were completely disabling, even
without the use of illegal substances.
When the ALJ issued her first decision denying Plaintiff's
claim for benefits, she determined that if Plaintiff stopped his
substance abuse, which included alcohol, marijuana, and cocaine,
he would have the residual functional capacity to perform light
work (such as a mail room clerk), despite his severe mental
impairments.

On appeal, the Appeals Council reversed the ALJ's

decision, and remanded the case with the following instruction:
"[I]f necessary, obtain evidence from a medical expert to clarify
the nature and severity of the claimant's mental impairment with
and without the use of illegal substances."1

1

The Appeals Council provided other instructions
regarding the ALJ's determination of Plaintiff's RFC as it
related to his back problems. Plaintiff has not appealed on
that issue.
8

At a subsequent hearing, the ALJ determined that it was not
necessary to obtain a medical expert to parse out Plaintiff's
capacity to do work when he was not under the influence of any
illegal drugs.

In making her decision, the ALJ was guided by 42

U.S.C. § 423(d)(2)(C), which provides that a claimant is not
considered disabled "if alcoholism or drug addiction would (but
for this subparagraph) be a contributing factor material to the
Commissioner's determination that the individual is disabled."
She was also guided by 20 C.F.R. §§ 404.1535, 416.935:
How we will determine whether your drug addiction or
alcoholism is a contributing factor material to the
determination of disability.
(a) General. If we find that you are disabled and have
medical evidence of your drug addiction or alcoholism,
we must determine whether your drug addiction or
alcoholism is a contributing factor material to the
determination of disability.
(b) Process we will follow when we have medical
evidence of your drug addiction or alcoholism.
(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
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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.
In the decision, the ALJ provided a detailed summary of
Plaintiff's medical records related to his substance abuse and
mental health treatment.

The majority of Plaintiff's medical

records are clinician's assessments of Plaintiff's mental state
during or following Plaintiff's use of illegal drugs or alcohol,
when he has stopped taking his prescription medications, or both.
The only medical records that report Plaintiff's mental affect
while sober and compliant with his prescriptions are from his
time spent in jail and in rehabilitation centers, and following a
30-day period of sobriety, when a state consultative mental
examination was performed.

It is based on these periods that the

ALJ determined that Plaintiff's "remaining limitations" were not
totally disabling.
The Third Circuit has made "clear that determination of the
existence vel non of substantial evidence is not merely a
quantitative exercise.

A single piece of evidence will not

satisfy the substantiality test if the [Commissioner] ignores, or
fails to resolve, a conflict created by counterveiling evidence.
10

Nor is evidence substantial if it is overwhelmed by other
evidence . . . or if it really constitutes not evidence but mere
conclusion."

Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)

(citations omitted).

Additionally, "[d]espite the deference due

to administrative decisions in disability benefit cases,
appellate courts retain a responsibility to scrutinize the entire
record and to reverse or remand if the [Commissioner]'s decision
is not supported by substantial evidence.”
quotation omitted).

Id. (citation and

In this case, the Court finds that the

medical records relied upon by the ALJ to determine that
Plaintiff has the functional capacity to perform light work as
long as he is sober and taking his prescription medications do
not provide substantial evidence to support that decision.
In reaching her conclusion that Plaintiff is not disabled,
the ALJ relied upon three, one-day examinations of Plaintiff from
the span of over eight years to support the finding that when
Plaintiff is properly medicated and not using illegal drugs or
alcohol, his mental impairments are only moderate, and he still
has the ability to do light work.
Ex. 11F, 17F, 28F numerous times.)

(See R. at 24-26, citing to
The ALJ, however, refers to

those same evaluations several times, and each in a contradictory
way.

Moreover, the portions of the evaluations that purportedly

support the finding that a sober, prescription drug complaint
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Plaintiff could perform light work, do not all demonstrate that
Plaintiff was sober or on his prescription drugs at the time of
the evaluation.
The ALJ cites to a July 5, 2003 psychiatrist report that
describes Plaintiff as friendly, coherent, cooperative, and
having increased eye contact and unremarkable self-care
functions.

®. at 26, citing Ex. 11F.)

This report, however, was

made upon Plaintiff's admission to an impatient treatment center
on the same day he was taken to the hospital's emergency room for
depression and suicidal ideation, following two weeks without
prescription medication and after using cocaine.
citing Ex. 11F.)

®. at 24,

This same report also stated that his judgment,

common sense, impulse control, and insight were impaired.
66, citing Ex. 11F.)

®. at

Additionally, the ALJ describes the report

as stating that Plaintiff's attention and memory were intact and
his concentration adequate, but in the next sentence, the ALJ
also describes the report to support the contrary statement that
Plaintiff's attention was decreased and his concentration
inadequate.

®. at 26, last paragraph.)

The ALJ also relies upon a September 10, 2004 initial mental
assessment, that she reports as describing Plaintiff to be of
normal or above level of intellectual functioning, to have normal
processes, to be able to abstract fairly, and having a good
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rapport and normal speech.

®. at 26-27, citing Ex. 17F.)

The

ALJ, however, describes the same assessment as stating that his
thought processes were slightly impaired ®. at 26), and that he
had a depressed mood, paranoid thought, homicidal ideation, and
difficulties with concentration ®. at 24).

Additionally, at the

time of this report, Plaintiff reported that he had been off his
prescription medications for two months.

(Id.)

The final record to support the ALJ's decision is a February
8, 2007 state agency consultative report, upon which the ALJ
placed substantial weight.

®. at 28.)

Plaintiff reported to the

doctor that he had been sober for thirty days and had been taking
his prescription drugs.

The ALJ noted that the doctor observed

Plaintiff to be cooperative with a calm voice, and that he
considered Plaintiff to have moderate limitations in interacting
appropriately with the public, coworkers, and supervisors.
26, citing Ex. 28F.)

®. at

Also in his report, however, as related by

the ALJ, the doctor observed that Plaintiff had an extremely
irritable and angry affect, he cried off and on throughout the
interview, his affect remained blunted, he was constricted to
depression and irritability, he had decreased eye contact, and he
was aloof, seclusive, guarded and suspicious.

®. at 25.)

This review of the basis for the ALJ's decision--that
Plaintiff's mental impairments were only moderate when he was
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properly taking his prescription drugs and not abusing alcohol or
illegal substances--reveals that the ALJ's decision is only
supported by one consultative evaluation performed by a state
agency physician, and that evaluation only partially supports her
conclusion.

It does not appear that any clinician specifically

evaluated Plaintiff to clarify the nature and severity of his
mental impairment with and without the use of illegal substances.
Morever, it does not appear that the ALJ considered Plaintiff's
testimony about his present condition, about which he testified
while residing in a dual diagnosis living center, where he had
been sober, taking his prescription medications, and receiving
therapy.

Despite those factors, Plaintiff testified that he

still hears voices, the voices are getting stronger, his
depression is getting worse, he isolates himself, and he is still
angry and explosive.

®. at 28.)

The evaluation process of an individual's mental impairments
requires the use of a “special technique,” and that special
technique “is a complex and highly individualized process” which
includes the consideration of many issues and any relevant
evidence in order to determine an individual's degree of
functional limitation.

20 C.F.R. § 404.1520a(a),(c)(1).

During

that process, an ALJ may not make “speculative inferences from
medical reports” and may not reject evidence "due to his or her
14

own credibility judgments, speculation or lay opinion."
v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 2000).

Morales

Additionally, as

noted above, a single piece of evidence will not satisfy the
substantiality test if the counterveiling evidence is not
explained or if that evidence is overwhelmed by other evidence.
Id. at 317.
Although the Commissioner retains the responsibility for
determining certain issues, such as residual functional capacity
and whether an individual meets the statutory definition of
disability, see 20 C.F.R. §§ 404.1527(e)(1)-(2), 416.927(e)(1)(2), the Commissioner must base those decision on substantial
evidence.

If the evidence provided by the claimant is inadequate

in determining whether the claimant is disabled, the Commissioner
can take a variety of steps to augment the medical evidence,
including affirmatively seeking clarification from a treating
physician, or calling another expert.

Knox v. Barnhart, 60 Fed.

Appx. 374, 377 (3d Cir. 2003) (citing 20 C.F.R. § 416.912(e))
(remanding case for further consideration on the issue of how the
claimant's substance abuse affected his mental impairment).
Here, the ALJ's decision, while comprehensive and detailed,
is not supported by substantial evidence on the narrow but
decisive issue of claimant’s medical condition when he is not
abusing illegal substances.

Accordingly, and the matter must be
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remanded for further evaluation.

Even though the ALJ was not

required, by either the Appeals Council or the regulations, to
obtain a medical expert to opine on Plaintiff's mental state
while he was sober and complaint with his prescription
medications, the ALJ's decision might have been properly
supported if the medical expert had weighed in.

On remand, this

Court will also not require the ALJ to obtain a medical expert,
but the decision as to Plaintiff's residual functional capacity
must be supported with more than a one-time evaluation in 2007 by
a state agency doctor, particularly where all the other evidence
in the record does not enable a non-medical professional to
determine the extent of Plaintiff's current physical and mental
limitations that would remain if he stopped using drugs or
alcohol.
III. Conclusion
For the reasons expressed above, the ALJ’s determination
that Plaintiff was not totally disabled is not supported by
substantial evidence.

Accordingly, the decision of the ALJ is

reversed and remanded for further proceedings consistent with
this Opinion.

An accompanying Order will be issued.

Date:
June 28, 2012
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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