Bufford v. Colvin

Filing 20

MEMORANDUM Opinion and Order; Plaintiff's motion for summary judgment is granted, the government's motion is denied and the case is remanded to the Commissioner for further proceedings consistent with this opinion. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 9/26/2016: (yxp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Joshua Bufford,
Plaintiff,
v.
Carolyn W. Colvin, Acting
Commissioner of Social Security,
Defendant.

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No. 15 CV 50106
Magistrate Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
This case raises a recurring and often difficult question in Social Security disability
cases—do the claimant’s drug and alcohol problems materially cause or contribute to the alleged
mental impairments? This question is relevant because a claimant cannot be found disabled “if
alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner’s
determination that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C). One method of
answering this question is to consider any periods in which the claimant was sober (referred to as
“periods of sobriety” or “periods of abstinence”) and then determine whether the claimant’s
symptoms impairments improved. The administrative law judge (“ALJ”) and testifying medical
expert in this case purportedly followed this approach in concluding that plaintiff was not
disabled. They concluded that during his six-month jail stay in 2013, a time when he presumably
was sober, his symptoms improved somewhat. Plaintiff argues that this analysis was incomplete
because the ALJ and the medical expert should have considered other, earlier periods of sobriety
that undermined this conclusion. Plaintiff seeks a remand under 42 U.S.C. § 405(g) so that the
ALJ can consider this additional evidence.

1

To understand these issues, it is not necessary to set forth a detailed chronology of
plaintiff’s life and medical history. This is not to suggest, however, that the facts are sparse or
uncomplicated. To the contrary, the record in this case is 1755 pages, more than double the
typical length of records reviewed by the Court in such cases.
By plaintiff’s own account, he has had a dysfunctional and difficult life. He was
diagnosed with a learning disability when he was 13 years old and had problems in school with
authority and interacting with peers. Dkt. #11 at 1-2. Around this time, he began drinking
heavily. He has been diagnosed with bipolar disorder, depression, panic disorder, and antisocial
personality disorder. Id. at 2. Turning to more recent history, plaintiff has had many
hospitalizations, multiple prison stays, several suicide attempts, and ongoing counseling sessions
and doctor visits. His opening brief includes a detailed chronology from August 2009 until
February 2014. Id. at 2-6. The chronology shows a series of crises and problems. Throughout
this period, plaintiff continued to use illegal drugs and abuse alcohol. He was also taking
numerous medications prescribed by his doctors to treat his mental illnesses.
On March 27, 2014, a hearing was held before the ALJ. Plaintiff was then 34 years old.
For the present appeal, the key testimony is that of psychologist Mark Oberlander, the impartial
medical expert. His testimony can be summarized in fairly short order. He agreed that plaintiff
had mental disorders such as major depressive disorder and bipolar disorder, and that plaintiff
had an ongoing problem with drug and alcohol addiction. He found that these dual problems
caused “marked” limitations in two of the four paragraph B criteria (social interaction and
concentration, persistence, or pace), which meant that plaintiff would qualify as disabled under
several of the Section 12 mental health listings. However, he concluded that during plaintiff sixmonth jail stay in 2013, plaintiff had “some amelioration of symptomology.” R. 62. This

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conclusion was based on a negative inference—namely, Dr. Oberlander stated that he reviewed
the prison records from this stay (29 pages in Ex. 39F) and concluded that there was the “absence
of any notation” in those records of any social difficulties. R. 67. Accordingly, if plaintiff were
able to stay sober, his limitations in social interaction would be “moderate” instead of “marked.”
This one change was enough to prevent plaintiff from meeting a Section 12 listing.
Plaintiff’s attorney then asked Dr. Oberlander whether he had considered the records
from another period of sobriety. This was around August 2011 when plaintiff, who was then not
in jail, was being treated by Rosecrance counselors. Counsel argued that these medical records
showed that plaintiff reportedly had “lost 40 pounds over the two months due to alcohol
withdrawal.” R. 66. Counsel argued that, despite being sober, plaintiff continued to report the
same symptoms (i.e. “poor memories, anxiety, hearing voices, trouble sleeping, racing
thoughts”) and a low GAF score of 45. Id. Dr. Oberlander responded as follows:
I look at documented periods of sobriety, and, certainly, six months of incarceration
provides me with sufficient certainty that there was, indeed, abstention. The
reported abstention—the treating sources need[] to be taken with some grain of salt
especially in dealing with a chronic [condition]. 1
R. 66 (emphasis added).
On April 24, 2014, the ALJ found plaintiff not disabled. She essentially adopted Dr.
Oberlander’s reasoning, giving his opinion “significant weight.” The ALJ stated the following:
[T]he claimant’s jail records [from 2013] failed to indicate the presence of
significant symptoms or any disciplinary issues. The undersigned also noted the
claimant’s jail records provided the only period of the claimant’s sobriety since the
filing of his current application.
R. 19. This was the central explanation for the ALJ’s decision and was mentioned
repeatedly throughout the opinion. See R. 17, 19, 21.
1

For the last word in brackets, the transcript states in the original: “depiction [phonetic].” Because the word
“condition” seems to make more sense both semantically and phonetically, the Court has substituted it in the
quotation. The word “addiction” is another possibility. Regardless, this issue is not material to the analysis here.

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Plaintiff now argues that the ALJ and Dr. Oberlander ignored several earlier
periods of sobriety that undermined their conclusion. As a preliminary observation, the
Court notes that the relationship between mental illnesses and substance abuse is complex.
This Court recently discussed some of the difficulties involved in trying to ferret out the
causal interrelationships involved with mentally ill drug addicts. See Lewis v. Colvin, 2016
WL 4530338, *1 (N.D. Ill. Aug. 30, 2016). The issue has also been discussed in several
Seventh Circuit opinions, most notably in Kangail v. Barnhart, 454 F.3d 627, 628 (7th Cir.
2006). 2 In 2013, the Social Security Administration issued a new ruling (SSR 13-2p)
seeking to provide further clarification. This ruling states that “periods of abstinence” are
usually the best evidence for determining whether a drug addiction or alcoholism is a
contributing material factor. At the same time, the ruling recognizes that that this often is
not an easy question to answer: “We do not know of any research data that we can use to
predict reliably that any given claimant’s co-occurring mental disorder would improve, or
the extent to which it would improve, if the claimant were to stop using drugs of alcohol.”
Here, the parties agree that the ALJ and the medical expert were correct in considering
periods of sobriety. But the parties dispute whether the ALJ and medical expert did so adequately
and fairly. Plaintiff argues that the ALJ cherry-picked the evidence by only considering the one
jail stay in the latter half of 2013, which supported her conclusion, and by ignoring two earlier
jail stays as well as the August 2011 counseling at Rosecrance, which allegedly undermined her
conclusion.
The first jail stay was in the spring of 2010. Plaintiff argues that during this stay, when he
was allegedly not using addictive substances, he continued to experience troubling symptoms.
2

Commentators have echoed this point as well. See, e.g., Carolyn A. Kubitschek and Jon C. Dubin, Social Security
Disability: Law and Procedure in Federal Court, at p. 632 (2016 Ed.) (“Determining whether a claimant would
remain disabled if he or she stopped drinking is sometimes a very complicated endeavor”).

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Specifically, on April 14, 2010, he got into an altercation, pushing and yelling at a prison guard,
leading to a strong counter-response. 3 R. 798. On the previous day, April 13th, another record
noted the following about plaintiff:
Cellmates report bizarre behavior – talking to himself, “wandering” block
aimlessly, “sitting on them & talking” while they are asleep, talking to walls.
R. 800; see also R. 799 (“PER DR. WATCH BUFFORD FOR ANY SUICIDAL SIGNS)
(emphasis in original). As plaintiff argues, these incidents took place almost a month after he had
been in jail. So it seems likely, he further argues, that he had already been weaned from the
negative effect of his addictions.
The second jail stay was apparently later in 2010, although the exact dates are not clear
from plaintiff’s brief. Plaintiff argues that, during this stay, he reported insomnia and depression,
and complained that his medications did not help. Dkt. #11 at 8 (citing R. 803, 811, 897).
The third alleged period of sobriety is the period plaintiff’s counsel referred to in the
hearing, roughly in August 2011. Again, the timing and details are not spelled out in much detail
in plaintiff’s brief. Plaintiff claims that he told his counselors at this time that he was not
drinking alcohol or taking drugs and yet continued to experience the same basic symptoms.
For example, plaintiff cites to a September 21, 2011 progress note written by Dr. Shahina Jafry.
She wrote the following:
31yr/o WM single diag w bipolar d/o alcohol abuse now in recovery program @
mission, feels depressed now since not drinking last june 12th 2011 feels hopeless
worthless anger out burst shout yell weired sounds, poor sleep appetite good hx
aggravated battery involve in lot of fights, feels depressed, anxious, wants to
readjust medication[.]
3

More specifically, the report stated: “This r/o kept telling Inmate Bufford to calm down, but he kept yelling. As
this r/o was trying to subdue Inmate Bufford, he lunged backwards towards this r/o and this r/o threw him towards
the booking counter. Inmate Bufford continued screaming and pushing this r/o aggressively, then c/o Edwards
arrived and tried to subdue Inmate Bufford. Inmate Bufford was still aggressive towards c/o Edwards, as Edwards
took Inmate Bufford to the floor. This r/o then contacted Dispatch via radio and called for backup in the jail. Inmate
Bufford was still trying to fight c/o Edwards as he was being escorted back to the holding cell.” R. 798.

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R. 1292 (abbreviations, spelling, and punctuation retained from original). Dr. Jafry also stated
that plaintiff’s highest GAF in the last year was 45. R. 1293.
Putting aside any assessment of the strength of this evidence, the primary question is
whether the ALJ and Dr. Oberlander considered it in assessing the larger question of whether
plaintiff’s drug and alcohol problems materially contributed to his impairments. If the ALJ and
the medical expert are properly using the “periods of sobriety” analysis (such as jail stays), then
they should consider all comparable periods of sobriety (such as other jail stays) absent valid and
articulated reasons. The ALJ did not give a clear indication, but the only reasonable conclusion is
that she did not consider these other periods. In the narrative portion of her opinion, the ALJ
summarized several potential periods of sobriety, including the 2010 jail stay and the 2011
counseling period at Rosecrance, among others. 4 In doing so, the ALJ did not offer any clear
statement as to how she viewed this evidence—for example, she never indicated whether she
believed plaintiff’s self-reports that he was not using addictive substances during these periods.
After setting forth this evidence, the ALJ then summarized Dr. Oberlander’s testimony
as follows: “Dr. Oberlander noted that when examining the claimant’s periods of sobriety, from
the medical evidence of record, there was an absence of notation of social difficulty.” R. 21.
Interestingly, the ALJ used the plural, “periods of sobriety,” seemingly harkening back to the
ALJ’s earlier summary of multiple periods of sobriety. This gives the impressions that Dr.
Oberlander considered some or all of these earlier periods of sobriety and that the ALJ may have
done so as well. But several factors make this interpretation unreasonable and highly unlikely.
4

See R 20 (“A March 2011 consultative psychological examination report noted the claimant reported a 10-month
period of sobriety in 2010. Coincidentally, the claimant also reported spending 8 months in jail in 2010 for
aggravated robbery.”); id. (“By August 2011, the claimant reported an early two-month period of sobriety (29F/2).
By April 2012, during a consultative examination, the claimant reported attending Alcoholics Anonymous meetings
five times per week and that he no longer was consuming any alcohol.”); id. (“claimant was able to maintain a few
months sobriety in early 2013”).

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Dr. Oberlander was clear that he considered only the one period in 2013, stating that it
alone provided “sufficient certainty” for his opinion. R. 66. When asked about the 2011 period
when plaintiff was treated at Rosecrance, Dr. Oberlander dismissed it as not worthy of
consideration on the ground that treating sources should be taken with a “grain of salt.” 5 He
never offered any opinion about the earlier jail stays. Although it should be noted that plaintiff’s
counsel did not point them out during the hearing, evidence of the earlier jail stays was contained
in the record. Given that the ALJ relied heavily on Dr. Oberlander’s opinion and given that he
did not consider these earlier stays, this establishes that the ALJ did not consider them either.
This conclusion is reinforced by the ALJ’s failure to analyze them in her opinion. She never
commented on the evidence cited by plaintiff, such as the report that plaintiff engaged in
“bizarre” behavior and fought with guards during the 2010 jail stay.
In its response brief, the Government does not make any serious argument that the ALJ
considered this evidence. Instead, the Government suggests—without making an explicit
argument and without citing to any supporting case law or SSRs—that the earlier sobriety
periods could not be considered because they occurred before the January 2012 filing date of
plaintiff’s application. It is possible that the ALJ relied on this rationale because the ALJ did
describe the 2013 jail stay as being “the only period of the claimant’s sobriety since the filing of
his current application.” R. 19 (emphasis added). But this phrase was quietly slipped into this
sentence with no further explanation nor citation to any legal rule to support the apparent
decision to exclude pre-filling periods of sobriety.
Assuming that the ALJ relied on this rationale, a point that is not entirely clear, the Court
finds that a remand is still warranted for two reasons. First, as plaintiff points out, the ALJ
5

The phrase “to take something with a grain of salt” generally means “to understand that something is likely to be
untrue or incorrect.” http://dictionary.cambridge.org/us/dictionary/english/take-something-with-a-grain-of-salt. For
the origin of the idiom, see https://www.youtube.com/watch?v=SeUr5_hYjHk.

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summarized and relied on other medical evidence from the pre-filing period to support her
opinion. Therefore, under basic principles of Social Security disability law, it would be unfair
and inconsistent if the ALJ then excluded evidence favorable to plaintiff from this same period.
See, e.g., Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014) (“the ALJ identified pieces of
evidence in the record that supported her conclusion that Mr. Scrogham was not disabled, but she
ignored related evidence that undermined her conclusion”). Second, contrary to the
Government’s unsupported argument, SSR 13-2p indicates that such evidence should be
considered:
The period of abstinence does not have to occur during the period we are
considering in connection with the claim as long as it is medically relevant to the
period we are considering. For example, a claimant for title XVI payments has a
permanent physical impairment(s) that in some people improves when they stop
abusing alcohol. However, there is evidence from a year before the date of the
application showing that when this claimant stopped drinking, the impairment(s)
improved only minimally. In this case, we may conclude that the impairment(s)
would not improve to the point of nondisability in the absence of DAA.
SSR 13-2p at n.18 (emphasis added).
The Government’s other argument is to suggest that the evidence from the two earlier
prison stays is “isolated” and insufficient to support plaintiff’s larger arguments. Dkt. #18 at 7.
However, under the Chenery doctrine, this argument is not one this Court can now consider here.
See Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (“the Chenery doctrine [] forbids an
agency’s lawyers to defend the agency’s decision on grounds that the agency itself had not
embraced”). However, it may be considered on remand.
In sum, the Court finds that the ALJ and medical expert should have considered these
other periods of sobriety. More broadly, the Court also urges the ALJ and medical expert on
remand to give greater consideration to the medical record as a whole. Here, the record is lengthy
(1755 pages). However, the ALJ’s opinion and the expert’s testimony largely skipped over most
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of the evidence and instead narrowly focused on the one alleged period of abstinence, even
though the records from this one period were relatively sparse (only 29 pages) and provided little
definitive information (merely the negative inference that certain facts were lacking). Focusing
on periods of abstinence is not improper and indeed has been referred to as critical part of the
inquiry, but at the same time, it should not become a mechanical exercise to the exclusion of the
record as a whole, especially in this area where courts and commentators have noted that there
are often no easy or quick answers.
CONCLUSION
For these reasons, plaintiff’s motion for summary judgment is granted, the government’s
motion is denied, and the case is remanded to the Commissioner for further proceedings
consistent with this opinion.

Date: September 26, 2016

By:

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___________________________
Iain D. Johnston
United States Magistrate Judge