Morgan v. Commissioner of Social Security
Filing
24
OPINION AND ORDER: The Court AFFIRMS the Commissioner's decision. Signed by Judge Joseph S Van Bokkelen on 9/27/2012. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
Amy J. Morgan,
Plaintiff,
v.
3:11-CV-139 JVB
Michael Astrue,
Commissioner of Social Security
Administration,
Defendant.
OPINION AND ORDER
Plaintiff Amy J. Morgan seeks judicial review of the final decision of Defendant Michael
J. Astrue, Commissioner of Social Security, who denied her application for Supplemental
Security Income disability benefits under the Social Security Act. For the following reasons, the
Court affirms the Commissioner’s decision.
A.
Procedural Background
On March 9, 2007, and May 25, 2007, Plaintiff applied for Supplemental Security Income
disability (“SSI”) benefits alleging disability beginning March 9, 2007. Her claim was denied on
July 5, 2007, and upon reconsideration on September 5, 2007. On October 11, 2007, she filed a
request for a hearing before Administrative Law Judge Yvonne K. Stam (“ALJ”).
On November 16, 2009, the ALJ determined that Plaintiff was not disabled and was thus
not entitled to SSI benefits. The ALJ found as follows:1
1
The ALJ’s findings are quoted directly from the record. (R. 13–24.)
1
1.
The claimant has not been engaged in substantial gainful activity since March 9,
2007, the application date.
2.
The claimant has the following severe impairments: depression, anxiety, and
polysubstance abuse.
3.
The claimant does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1.
4.
After careful consideration of the entire record, the undersigned finds that, based
on all of the impairments, including the substance use disorders, the claimant has
the mental residual functional capacity to perform work with the following
limitations: she is limited to simple routine tasks with a relatively unchanging
work setting and process and without fast pace or high production demands. She
cannot work with the general public, and is limited to only brief and superficial
contact with coworkers and supervisors.
5.
The claimant is unable to perform any past relevant work.
6.
The claimant was born on June 16, 1967, and was 39 years old, which is defined
as a younger individual age 18–49, on the date the application was filed.
7.
The claimant has at least a high school education and is able to communicate in
English.
8.
The claimant’s acquired job skills do not transfer to other occupations within the
residual functional capacity defined above.
9.
Considering the claimant’s age, education, work experience, and residual
functional capacity based on all of the impairments, including the substance use
2
disorders, there are no jobs that exist in significant numbers in the national
economy that the claimant can perform.
10.
Since the claimant went through Drug Court and apparently stopped the substance
use, the remaining limitations would cause more than a minimal impact on the
claimant’s ability to perform basic work activities; therefore, the claimant
continues to have a severe impairment or combination of impairments.
11.
Since the claimant apparently stopped the substance use, the claimant does not
have an impairment or combination of impairments that meets or medically
equals any of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1.
12.
Since the claimant went through drug court, the claimant has the residual
functional capacity to perform light work as defined in 20 CFR 416.967(c) except
no climbing of ropes, ladders or scaffolding or working around unprotected
heights. The claimant should avoid extreme cold environments, and have no
interaction with the general public; all work should be simple and routine tasks in
a relatively unchanging setting with repetitive processes; the claimant should have
limited contact with co-workers and supervisors; and the claimant should not
work in a fast-paced work setting or work with high production demand.
13.
In the absence of substance use, the claimant would continue to be unable to
perform past relevant work.
14.
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled,” whether or not the claimant has transferrable
job skills.
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15.
In the absence of substance abuse, considering claimant’s age, education, work
experience, and residual functional capacity, there would be a significant number
of jobs in the national economy that the claimant could perform.
16.
Because the claimant would not be disabled in the absence of the substance use,
the claimant’s substance use disorders are a contributing factor material to the
determination of disability for the period when she was abusing. Thus, the
claimant has not been disabled within the meaning of the Social Security Act at
any time from the date of the application was filed through the date of this
decision.
On March 1, 2011, the Appeals Council adopted the ALJ’s findings, but found the
Plaintiff was not disabled under Medical-Vocational Rule 202.21 rather than Medical-Vocational
Rule 203.29. (R. 4.)
B.
Factual Record
(1)
Plaintiff’s Background
Plaintiff was born on June 16, 1967. (R. 18.) She did not complete high school, but
received her GED. (R. 15.) She has worked sporadically as a cook (R. 193, 284), medical
housekeeper (R. 36), and babysitter (R. 402).
She has three children, twin daughters, who are currently around thirteen years old (R.
34) and an older son (R. 49). Plaintiff lives with her children and cares for them. (R. 34, 48.)
Plaintiff testified she takes care of her twins by getting them ready for school and cooking meals
for them. (R. 42–4.) While the children are at school, Plaintiff cleans the house, washes dishes,
and does laundry. (R. 42–4.) She also goes to the grocery store. (R. 217–9.)
4
Plaintiff has a history of mental health issues and substance abuse. Her mental health
issues began after she was repeatedly molested by her brothers from age nine to fourteen. (R.
49.) She became pregnant, and was forced to give up the baby for adoption. (R. 49–50.) Later,
she developed a dependence on alcohol, cannabis, and cocaine. In October 1991 or February
1992 she was arrested for driving under the influence of cannabis. (R. 386.) On January 11,
2007, Plaintiff was arrested for cocaine use and her children were removed from the home. (R.
361, 423.)
(2)
Medical Evidence
On October 26, 1988, Plaintiff was evaluated at the Swanson Center, where they noted a
previous evaluation at age twelve. (R. 395.) At age twelve she was diagnosed with other
personality disorder. (R. 395.) At this evaluation Plaintiff was diagnosed with post-traumatic
stress disorder and dysthymia (chronic low mood) after repeated episodes of abuse. (R. 394.)
On July 7, 1992, an addictions counselor at the Swanson Center observed Plaintiff had
underlying mental health issues in addition to her substance abuse disorder. (R. 393.)
On September 26, 1996, she was discharged from the Swanson Center with a diagnosis of
major depressive disorder recurrent mild psycho social/environmental problems; survivor of
sexual, physical, emotional, and verbal abuse; adult child of an alcoholic; financial concerns; and
conflict with an abusive boyfriend. (R. 383.) Her Global Assessment Functioning (“GAF”) score
was 41, with the highest score being 51 in past years. (R. 383.) The GAF score signifies how
wells persons are dealing with problems in their lives. The Plaintiff’s GAF score indicates
serious symptoms and impairment in social, occupational, or school functioning. (Pl. Br. at 4.)
5
The addiction counselor believed Plaintiff had underlying mental health issues in addition to her
substance abuse disorder (R. 393), but believed her prognosis to be fair. (R. 385)
On March 22, 1999, Plaintiff was admitted to the Swanson Center for the fourth time. (R.
292.) She was diagnosed with adjustment disorder (having a disproportionately intense reaction
to a stressor) and the records indicate she had features of dependent personality disorder
(becoming emotionally dependent on others). The record also indicates she had headaches,
stomachaches, blood pressure issues, abnormal periods, and psycho social environmental
problems, including the relationship problems with father of her twins, caring for the twins,
balancing care for herself, the twins, her son and her partner. (R. 297.) Her GAF score was 50,
with the highest score being 55 in the past year. (R. 297.) On March 15, 2000, she had another
clinical assessment. Her GAF score was 56, indicating moderate symptoms or moderate
difficulty in social, occupational, or school functioning. (R. 279.) Plaintiff reported she had
trouble with keeping appointments and work attendance. (R. 275.)
In December 2005 or January 2006, Plaintiff attended an Alcoholics Anonymous session.
(R. 299.)
In January 2006, Wabash County Court committed Plaintiff for an emergency detention
after she attempted to commit suicide by overdosing. (R. 399.) She was hospitalized for twentyfour hours (R. 319.) The application for emergency detention lists a psychiatric disorder (R.
398), but an evaluation by the Bowen Center on January 24, 2006, states she was “diagnosed
with Major Depressive Disorder, as well as, Cocaine, Cannabis, and Alcohol Dependence.” (R.
445.)
In September 2006, Christi Ballard evaluated Plaintiff, after the state removed her
daughters from the home. (R. 301.) Plaintiff admitted to cocaine use. (R.301.) Ms. Ballard noted
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Plaintiff’s history of being non-compliant with mental health services and her history of
substance abuse. (R. 301.) Plaintiff was diagnosed with major depressive disorder and cocaine
dependence, in early remission. (R. 301.) Plaintiff was referred to individual counseling for her
substance abuse. (R. 302.)
In October 2006, Plaintiff underwent treatment for substance abuse with Tim McVicker.
Mr. McVicker questioned Plaintiff’s self-reported history of alcohol, marijuana, and cocaine
abuse, noting there were indicators she was intoxicated more often. (R. 350.) She claimed not to
have used marijuana for six to seven years. (R. 350) However, in the past she reported she would
smoke between one and three joints a day. (R. 350.) Finally, she reported she began using
cocaine at age twenty-one, and that she last used cocaine two months earlier. (R. 350.) Mr.
McVicker noted that some of the plaintiff’s substance abuse appeared to be because of her
psychological dependence on these drugs. (R. 350.) She was diagnosed with cocaine
dependence, alcohol dependence, and cannabis dependence, in remission. (R. 351.)
In November 2006, Dr. Hani Ahmad, a psychiatrist, evaluated the Plaintiff to determine
the possibility of using medication to manage her mental issues. (R. 305.) She reported her mood
was better, and that she had no symptoms of depression, mania, hypomania, or suicidal ideation.
(R. 307.) She was having difficulty sleeping, as well as obsessive compulsive behavior and
anxiety when she tried to avoid obsessive thoughts. (R. 305.) Dr. Ahmad’s assessment noted her
mood as “okay,” her thoughts were logical, linear, and goal-oriented, her affect was appropriate,
judgment was intact, and her insight was fair. (R. 307.) Her difficulty in performing serial 7’s
suggested poor concentration and attention. (R. 308.) Dr. Ahmad diagnosed her with Obsessive
Compulsive Disorder; Attention Deficit/Hyperactivity Disorder, Inattentive Type; a History of
Major Depressive Disorder, Recurrent, with Moderate Intensity; Cocaine Dependence in Early
7
Full Remission; Cannabis Dependence in Early Full Remission; and Alcohol Dependence in
Early Partial Remission. (R. 308.) She was prescribed Luvox for her obsessive compulsive
disorder and Trazodone for depression. (R. 309.)
On January 11, 2007, Plaintiff was arrested after leaving her children alone over night to
use cocaine. (R. 361, 423.)
On February 27, 2007, Plaintiff relapsed into an acute post-traumatic stress disorder
episode, after receiving “notice of substantiation of neglect and emotional abuse allegations by
DCS.” (R. 417.) This relapse was marked by anxiety, delusions of persecution, and paranoia. (R.
417.) Her treatment team suggested she apply for SSI benefits (R. 417.)
In March 2007, Dr. James Haughn, a family practice physician, evaluated Plaintiff after
she complained of fatigue, bone ache, hip and back pain, swelling in the thighs, and weight gain.
(R. 311.) She also reported visual hallucinations, but refused a referral to the Bowen Center. (R.
311.) She was receiving services from White’s Residential and Family Service during this time.
(R. 415, 418, 421.)
On April 30, 2007, she began counseling at the Bowen Center. (R. 361.) Dr. Ahman
noted her cocaine addiction was in early partial remission, and Plaintiff had a diagnosis of
obsessive-compulsive disorder, attention deficit hyperactivity disorder, and a history of post
traumatic stress disorder. (R. 361.)
In May 2007, Dr. Russell Coulter-Kern, a licensed psychologist, performed a consultative
psychological evaluation. (R.315–8.) Plaintiff reported she was anxious, forgetful, and
overwhelmed. (R.315.) She was able to go shopping, but felt irritable around people. (R. 316.)
Plaintiff was working as a preparation cook, but stopped when the restaurant closed. (R. 316.)
After an examination, Dr. Coulter-Kern evaluated Plaintiff’s judgment and insight as good, her
8
fund of information as poor, her immediate memory as fair, her recent memory as good, her past
memory as poor, her ability to understand and interpret information as fair, and her ability to
manage her own affairs without assistance as good. (R. 317–8.) These evaluations were based on
Dr. Coulter-Kern’s observations that Plaintiff’s hygiene was good, her eye contact appropriate,
her speech quality normal, her thought processes logical and coherent, and her mood as “okay.”
(R. 318.) Plaintiff reported her daily activities as managing her personal hygiene, cooking,
cleaning, managing her finances, listening to music, washing dishes, going to the library, and
getting on the computer. (R. 316.) Plaintiff was diagnosed with anxiety disorder, not otherwise
specified, and attention deficit hyperactivity disorder, combined type. (R. 318.) Dr. Coulter-Kern
assigned a GAF score of 65-70, indicating he believed Plaintiff’s symptoms to be mild or that
she had some mild limitations in social, occupation, or school functioning. (R. 21.)
In May 2007, Dr. Shuyuan Wang performed a consultative physical examination. (R.
319–24.) Plaintiff reported she last used cocaine five months previously. (R. 320.) He diagnosed
the Plaintiff with depression and anxiety, post-traumatic stress disorder, ODD, ADD, allergies,
COPD, hypertension, left hip pain, low back pain, mild bilateral length discrepancy, and a
history of substance abuse. (R. 323.)
In June 2007, Plaintiff was discharged from her chemical dependency group, with a note
that Plaintiff admitted to using drugs during the treatment process, and a diagnosis of major
depressive disorder, cocaine dependence, alcohol dependence, and cannabis dependence in
remission. (R. 349.) She had some progress in recognizing the mood altering effects of her
substance abuse. (R. 349.)
In July 2007, Plaintiff reported stress over the results of her case conference with child
services to get her two daughters back. (R. 381.) Plaintiff said she agreed to complete the
9
Wabash County Drug Court Program so she could visit her daughters. (R. 381.) A week later,
Plaintiff reported feeling better and the therapist noted she was only mildly distressed. (R. 380.)
In July 2007, Dr. F. Kladder, the state agency reviewing psychologist, gave the opinion
that Plaintiff did not have a severe mental impairment. (R. 334.) He believed she only had mild
restrictions on daily living, mild difficulties in social functioning, mild difficulties in maintaining
concentration, persistence, and pace, and no episodes of decompensation. (R. 344.) Dr. Joseph
Pressner and Dr. B. Whitley agreed with Dr. Kladder’s opinion that Plaintiff did not have a
severe mental impairment. (R. 366–7.)
In September 2007, when Plaintiff began her court-ordered participation in the Drug
Court program, she reported working 50 hours a week as a babysitter. (R. 402.) In October 2007,
Plaintiff reported she was doing well (R. 377), and again reported she was still doing well in
early and late January 2008. (R. 370, 369.)
In November 2008, Jeffrey Locke, a social worker who worked with the Plaintiff from
September 2006 through April 2008, reported that Plaintiff exhibited symptoms of decreased
energy, depressed mood, persistent agitation, strong feelings of self-reproach, difficulty
concentrating, and appetite and sleep disturbances. (R. 436.) He noted she had a profound
mistrust of others and experienced significant anxiety in social situations. (R. 436.) He believed
her symptoms were consistent with diagnoses of major depression, post-traumatic stress
disorder, and paranoid personality disorder and that her symptoms resulted in marked restriction
in her daily living and ability to interact socially. (R. 437.) He believed her mental health
symptoms to be debilitating and chronic to the extent she should apply for SSI benefits. (R. 437.)
In October 2010, Dawn Etzel, a therapist, updated Plaintiff’s mental health assessment.
(R. 486–90.) Plaintiff reported being abstinent from mood-altering drugs since approximately
10
2007. (R. 487.) Ms. Etzel reported Plaintiff was oriented to person, place, time, and situation,
was very cooperative, presented with fair memory, and presented with normal perception and
coherent thinking. (R. 386.) Plaintiff reported being highly isolated and feeling extreme anxiety
when she needed to leave home. (R. 486.) Ms. Etzel diagnosed Plaintiff with post-traumatic
stress disorder, chronic (R. 489) and that her prognosis was fair (R. 490).
In January 2011, Virginia Butler, a therapist, reported Plaintiff exhibited decreased
energy, depressed mood, persistent agitation, difficulty concentrating, strong feelings of selfreproach, appetite disturbances, and sleep disturbances. (R. 484.) She also reported that Plaintiff
was easily distracted, often forgetful, had marked difficulty concentrating, and experienced
symptoms of acute anxiety. (R. 484.)
(3)
Plaintiff’s Testimony
At the hearing, Plaintiff testified she has tried to keep a job, but becomes overwhelmed
by anxiety. (R. 33.) She testified she has been sober for over a year. (R. 33.) In 1994, she worked
at the Blue Ribbon Café sporadically for two years. (R. 34.) In 1998 and 1999, she worked parttime at two different nursing homes, where she cleaned rooms, made beds, and passed out ice
water. (R. 35–6.) At one of the nursing homes, she worked for one year, and at the other nursing
home she only worked for three months. (R. 35–6.) She could not recall why she left the job at
the nursing home, but said she could try working in a similar position again. (R. 37.) Her
difficulty in keeping the job would be her anxiety and concentration. (R. 37, 47.) When she
becomes anxious and overwhelmed, she leaves the situation. (R. 47.) Plaintiff testified this
happens often. (R. 47.) There are also times when she is too anxious to answer the door or leave
the house. (R. 51.) And she has difficulty following directions. (R. 50.)
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Plaintiff no longer attends twelve-step meetings, but sees a counselor from the Bowen
Center twice a month. (R. 37–8.) She testified that she takes Zoloft and Wellbutrin. (R. 39.) She
stopped taking her medication for two or three weeks, but started taking them again after she
began feeling more anxious. (R. 40.)
On a typical day, Plaintiff gets her daughters ready for and drives them to school. (R.42.)
Then she returns home, goes on her computer, cleans dishes, and visits her sister’s house. (R.43.)
She typically visits her sister’s house two or three times a week; she stays for about an hour and
talks. (R. 43.) Later, she picks her daughters up from school, makes dinner, and cleans the house.
(R.44.) She testified she does her own grocery shopping. (R. 44.) Outside of her mental health
issues, she believes the arthritis in her back also interferes with her ability to hold a full-time job.
(R. 45.)
Plaintiff’s sister also testified. She said Plaintiff has trouble concentrating (R. 55),
following directions (R. 56), and remembering things. (R. 54.) She does not interact with others
outside of her family and does not respond well to supervision. (R. 58.)
(4)
Vocational Expert’s Testimony
Vocational Expert (“VE”), Robert S. Barkhaus, Ph.D., testified at Plaintiff’s hearing on
September 11, 2009. (R. 31, 59.) The ALJ presented him with a hypothetical profile of person
limited to light work, no interaction with the general public, performing simple routine tasks in a
setting and work process that is relatively unchanging with limited contact with supervisors and
coworkers, with that contact being brief and superficial, and no fast pace or high production
quotas. (R. 60.) The VE believed a small products assembler job would fit this profile, with
1,000 of such jobs present in northeast Indiana. (R. 60.) A cleaner or maid job would also fit the
12
profile with 600 jobs present. (R. 60.) Additionally, a laundry folder job would fit, with 200
estimated jobs present. (R. 60.)
Most employers would allow additional two or three breaks a week for these jobs, but
consistent absences would not be tolerated. (R. 60–1.) These jobs do not require close
supervision. (R. 61–2.) The location of work might change, but not the tasks. (R. 62.) The jobs
may require the employee to take some instruction and sometimes work with a coworker. (R.
63.) The employee would also need to respond appropriately to some supervision. (R. 64.)
(5)
The Administrative Law Judge’s Decision
The ALJ concluded that Plaintiff was under disability, but that substance abuse disorders
were a contributing factor material to the determination of disability. (R. 13.) Therefore, Plaintiff
was not disabled under the Social Security Act. (R. 13.) The ALJ found Plaintiff’s depression,
anxiety, and polysubstance abuse to be severe impairments, but these impairments did not meet
or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(R. 15–6.)
The ALJ found the Plaintiff did not meet “paragraph B” criteria because Plaintiff only
has mild restrictions in daily living, moderate difficulties in social functioning, and moderate
difficulties with regard to concentration, persistence, or pace. (R. 16.) Furthermore, the ALJ
found the Plaintiff had not experienced episodes of decompensation for extended duration. (R.
16.) To satisfy “paragraph B” criteria, Plaintiff’s mental impairments, including substance abuse
disorders, must present two marked difficulties in these areas or repeated episodes of
decompensation. 20 C.F.R. Part 404, Subpart P, App. 1, §§ 12.02, 12.02. Even without the
substance abuse, the ALJ found Plaintiff does not meet “paragraph B” criteria and only has: mild
13
restrictions in daily living activities, moderate difficulties in social functioning, and moderate
difficulties in concentration, persistence, or pace. (R. 19.) The claimant experienced no periods
of decompensation in the absence of substance abuse. (R. 19.)
The ALJ also found the Plaintiff did not meet “paragraph C” criteria because she did not
provide a medically documented history of a chronic affective disorder of at least two years’
duration that causes a more than minimal limitation in ability to do basic work. (R. 16–7.) In the
absence of substance abuse, the ALJ still found Plaintiff did not meet “paragraph C” criteria
because she did not provide a medically documented history of a chronic affective disorder of at
least two years’ duration that causes a more than minimal limitation in ability to do basic work.
(R. 19–20.)
The ALJ found Plaintiff to be credible regarding her depression and anxiety, and how
they affect social interactions and her ability to maintain concentration, persistence, and pace
during the period that the claimant was abusing illegal drugs. (R. 17.) The ALJ noted the
correlation between periods of illicit drug usage and decompensation (R. 17), further noting that,
after Plaintiff stopped the substance abuse, she has not had an episode of decompensation. (R.
19.)
The ALJ found medically determinable impairments could reasonably be expected to
produce the alleged symptoms, but the claimant’s statements concerning the intensity,
persistence, and limiting effects were not credible because they were inconsistent with the
objective evidence in the record. (R. 22.) The ALJ noted Plaintiff’s part-time work in February
2007 and her failure to seek examination and treatment after a complaint about visual
hallucinations. (R. 21.) The ALJ placed great weight on Dr. Coulter-Kern’s independent
psychological exam on May 2, 2007. (R. 21.) Dr. Coulter-Kern assessed Plaintiff’s GAF score at
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65-70, reflecting mild symptoms. (R. 21.) The ALJ also placed great weight on Dr. Wang’s
independent internal medicine consultative exam on May 23, 2007. (R. 21.) Dr. Wang said
Plaintiff could work an eight-hour day in a seated or standing position with walking no more
than thirty minutes of every hour. (R. 21.) Dr. Wang also believed she was capable of carrying
fifteen pounds frequently, thirty pounds occasionally, but said no to rope climbing, ladders or
scaffolding or working around unprotected heights. (R. 21.) He also believed Plaintiff should
avoid extreme cold environments. (R. 21.) The ALJ placed limited weight on Jeffrey Locke’s
opinion, her social worker, that her mental health issues are chronic and debilitating because
these conclusions are not supported by the objective evidence in the record. (R. 22.)
C.
Standard of Review
This Court has the authority to review Social Security Act claim decisions under 42
U.S.C. § 405(g). The Court will uphold an ALJ’s decision if it is reached under the correct legal
standard and supported by substantial evidence. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345,
351 (7th Cir. 2005). Substantial evidence consists of “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
401 (1971). This Court will not reconsider facts, re-weigh the evidence, resolve conflicts in the
evidence, decide questions of credibility, or substitute its judgment for that of the ALJ. Boiles v.
Barnhart, 395 F.3d 421, 425 (7th Cir. 2005). This Court will, however, ensure that the ALJ built
an “accurate and logical bridge from the evidence to his conclusion so that, as a reviewing court,
we may access the validity of the agency’s ultimate findings and afford a claimant meaningful
judicial review.” Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002).
15
D.
Disability Standard
To qualify for Disability Insurance Benefits the claimants must establish that they suffer
from a disability. A disability is an “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.” 42 U.S.C. § 423(d)(1)(A). The Social Security Administration established a
five-step inquiry to evaluate whether a claimant qualifies for disability benefits. A successful
claimant must show:
(1) he is not presently employed; (2) his impairment is severe; (3) his impairment is
listed or equal to a listing in 20 CFR. § 404, Subpart P, Appendix 1; (4) he is not
able to perform his past relevant work; and (5) he is unable to perform any other
work within the national and local economy.
Scheck v. Barnhart, 357 F.3d 697, 699–700 (7th Cir. 2004).
An affirmative answer leads either to the next step or, on steps three and five, to a finding
that the claimant is disabled. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001). A negative
answer at any point other than step three stops the inquiry and leads to a finding that the claimant
is not disabled. Id. The burden of proof lies with the claimant at every step except the fifth,
where it shifts to the Commissioner. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).
E.
Analysis
(1)
The ALJ relied on substantial evidence in concluding that in the absence of substance
abuse, the Plaintiff’s remaining limitations have minimal impact on daily living.
Plaintiff claims the ALJ erred because Plaintiff continued to experience severe mental
health issues in the absence of substance abuse. (Pl. Br. 18–22.)
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Under the Social Security Act, an otherwise disabled person will not receive benefits if
substance abuse is a “contributing factor material to the Commissioner’s determination that the
individual is disabled.” 42 U.S.C. § 423(d)(2)(C) (2012). The ALJ must determine if the person
would still be found disabled without the substance abuse. Kangail v. Barnhart, 454 F.3d 627,
628 (7th Cir. 2006); see also 20 C.F.R. § 404.1535(b)(1) (1995). The ALJ follows the normal
five-step analysis to determine if the claimant is disabled. If the claimant is disabled under this
initial analysis, the ALJ determines the physical and mental limitations that would remain in the
absence of substance abuse. 20 C.F.R. § 404.1535(b)(2). Finally, the ALJ determines whether the
remaining limitations meet the definition of disabled under the Social Security Act. If the
limitations meet the definition of disabled, the claimant is “disabled independent of [her] drug
addiction or alcoholism.” 20 C.F.R. § 404.1535(b)(2)(ii). If the claimant’s remaining limitations
are not disabling, the substance abuse is material to the determination of disability. 20 C.F.R. §
404.1535(b)(2)(i).
(a)
Correlation between Plaintiff’s drug use and decompensation
The ALJ noted the correlation between Plaintiff’s drug use and decompensation, which is
supported by substantial evidence in the record. (R. 17.) The ALJ relies on the evaluation of Dr.
Hani Ahmad who noted that Plaintiff had serious symptoms related to her Obsessive Compulsive
disorder, Attention Deficit/Hyperactivity Disorder, and Major Depressive Disorder. (R. 17, 355.)
There are reports of Plaintiff’s drug use surrounding the time she went for this evaluation,
notably an arrest for cocaine a few months after her visit to Dr. Ahmad. (R. 361, 423, 350, 422.)
Plaintiff continued to use drugs while she attended a court-ordered Drug Court program. (R.
349.) Finally, the ALJ did not mischaracterize the Wabash Circuit Court’s January 2006
17
hospitalization order. (R. 398.) The order listed a psychiatric disorder, but an evaluation the next
day also noted her continued substance abuse. (R. 445.) Thus, the ALJ properly notes Plaintiff’s
periods of decompensation corresponded to her periods of drug abuse.
(b)
Limited weight of Jeffrey Locke’s report
The ALJ’s attribution of limited weight to Jeffrey Locke’s report is supported by
substantial evidence. (R. 22.) Jeffrey Locke was a social worker. (R. 436.) Thus, while he may
have spent significant time with the Plaintiff, he is not an acceptable medical source according to
the regulations. (R. 436.) As such, his opinion does not have controlling weight. See 20 C.F.R. §
404.1513(a). Further, as noted by the ALJ, Jeffrey Locke’s opinion was not supported by the
objective evidence of the record. Cf. Zblewski v. Astrue, 302 Fed. Appx. 488, 493–4 (7th Cir.
2008) (stating the ALJ could properly give limited weight to an opinion that was not an
acceptable medical source according to regulations and not supported by the objective evidence
in the record).
(c)
Plaintiff’s credibility
The ALJ relied on substantial evidence in finding that Plaintiff’s claims as to the
“intensity, persistence, and limiting effects of these symptoms are not credible.” (R. 21.) An
ALJ’s credibility determination will only be overturned if “patently wrong.” Prochaska v.
Barnhart, 454 F.3d 731, 738 (7th Cir. 2006). No such finding can be made here.
The ALJ found the claims were not supported by the objective evidence in the record. (R.
21.) During her alleged period of disability, Plaintiff was able to work fifty hours a week
babysitting when she was abstinent from substance abuse. (R. 402.) Plaintiff’s ability to work
18
during her alleged period of disability reflects poorly on her credibility concerning severity of
her symptoms. Cf. Johnson v. Barnhart, 449 F.3d 804, 807 (7th Cir. 2006) (noting claimant’s
ability to continue working four years after diagnosis with the same symptoms indicated the
claimant’s testimony concerning her inability to work because of pain were exaggerated). She
reported doing well during therapy sessions, again when she was not using illicit substances. (R.
369, 370, 375, 402.)
Plaintiff argues she still has severe mental health issues in the absence of substance
abuse, and points to the record. (Pl. Br. 25–8.) However, there is evidence of substance abuse
during these periods and the ALJ relied on substantial evidence in finding that Plaintiff was not
credible in reporting her substance abuse history. (R. 349, 350.)
Plaintiff also argues the ALJ improperly relied on Plaintiff’s refusal for a referral to a
mental health center in March 2007. (Pl. Br. 23.) Rather, the ALJ found that Plaintiff’s refusal
and the rest of the objective medical evidence in the record “reflect[ed] poorly on [her]
credibility” about the severity of her reported symptoms. (R. 21.) Plaintiff was receiving mental
health services during this period (R. 415, 418, 421) and accepted the referral a month later (R.
361), but this does not undermine the ALJ’s credibility determination because the ALJ relied on
other evidence as well. (R. 21.) Cf. Jones v. Astrue, 623 F.3d 1155, 1161 (7th Cir. 2010) (noting
the ALJ’s credibility determination was not mistaken because, even if the ALJ incorrectly noted
a gap in treatment, the ALJ relied on additional objective medical evidence in making the
credibility determination).
(d)
Testimony of Plaintiff’s sister
19
Plaintiff argues the ALJ disregarded the testimony of her sister. (Pl. Br.at 22.) The ALJ
considered all evidence before her. The sister’s testimony did not present a line of evidence
different from Plaintiff’s testimony, and therefore, the ALJ is not required to discuss it. See
Books v. Chater, 91 F.3d 972, 980 (7th Cir. 1996) (stating the ALJ did not err in declining to
address the testimony of claimant’s brother because it reiterated claimant’s testimony).
Additionally, as with Plaintiff’s testimony, the sister’s testimony about the severity of Plaintiff’s
symptoms is not supported by the objective evidence in the record.
(2)
The ALJ adequately addressed SSR-85-15.
The Plaintiff claims the ALJ, and the Appeals Council in adopting the ALJ’s findings, did
not adequately address SSR-85-15. (Pl. Br. 27.) Plaintiff claims she cannot “understand, carry
out and remember simple instructions; [ ] respond appropriately to supervision, coworkers or
usual work situations; and [ ] deal with changes in a routine work setting.” (Pl. Br. 27.) With
these limitations, Plaintiff claims there are no jobs available for her. (Pl. Br. 28.) The ALJ
properly relied on the evidence provided by the VE. In posing a hypothetical to the VE, the ALJ
includes only the limitations she found to be credible. See Schmidt v. Astrue, 496 F.3d 833, 846
(7th Cir. 2007) (stating the ALJ is only required to incorporate impairments and limitations he
finds credible in posing a hypothetical to the VE).
The ALJ posed the following hypothetical to the VE:
If I were to find an individual limited to light work, no general public, simple routine
tasks in a setting and work process that is relatively unchanging, limited contact with
coworkers, supervisors, brief and superficial, no fast pace or high production quotas, is
there such work an individual can do?
(R. 60.)
20
The VE found there were jobs available in the national economy for this individual and
that employers of these positions would allow additional breaks, but not repeated absenteeism.
(R. 60–1.)
The ALJ’s hypothetical was supported by the objective medical evidence in the record.
As noted by the ALJ, in the absence of substance abuse, Plaintiff held a part-time job at Ford
Meter Box (R. 21) and later worked fifty hours a week babysitting. (R. 402.) The evaluation by
Dr. Coulter-Kern noted that Plaintiff’s symptoms related to her anxiety disorder and her attention
deficit hyperactivity disorder were mild. (R.315–8.) The record does not support plaintiff’s
claim that she is unable to handle any supervision (Pl. Br. 28), and the ALJ’s hypothetical made
allowances for Plaintiff’s need for minimal supervision (R. 60). The VE testified that, even with
the limitation of minimal supervision, there are available jobs for Plaintiff. (R. 62.) The VE also
noted the suggested jobs typically require very little change in routine. (R. 64.)
(3)
The additional evidence from Plaintiff’s therapists Virginia Butler and Dawn Etzel.
Plaintiff contends that the Appeals Council ignored additional evidence submitted
after the ALJ’s decision, including the October 2010 assessment of therapist Dawn Etzel and the
January 2011 report of therapist Virginia Butler. There is no indication that the Appeals Council
failed to consider their when determining that she was not disabled in its decision (R. 3-6).
Indeed, contrary to Plaintiff’s argument that the Appeals Council did not consider such
additional evidence, the Appeals Council explicitly stated that “[c]omments and additional
evidence have been received and considered” (R. 3). Furthermore, the Appeals Council explicitly
indicated that the additional evidence containing the reports of Ms. Etzel and Ms. Butler had
been entered into the record (R. 3, 7).
21
Moreover, although Plaintiff contends that the reports of Ms. Etzel and Ms. Butter
demonstrated that she continued to experience serious symptoms in the absence of her substance
abuse, Plaintiff has failed to show that such additional evidence warranted any further functional
limitations than those contained within the ALJ’s residual functional capacity finding. Although
Plaintiff points out that Ms. Etzel and Ms. Butler indicated that Plaintiff had significant
social limitations (R. 484, 486, 490), Plaintiff fails to acknowledge that the Appeals Council and
ALJ reasonably found that Plaintiff had significant social limitations and, therefore, limited her
to work that did not involve any interaction with the general public or more than limited contact
with co-workers and supervisors (R. 5, 20). Neither Ms. Etzel nor Ms. Butler opined that
Plaintiff had more restrictive social functional limitations than those assessed by the ALJ in his
residual functional capacity finding. Likewise, although Plaintiff notes that Ms. Butler stated that
Plaintiff had significant difficulties with concentration and remembering, Plaintiff fails to
acknowledge that the Appeals Council and the ALJ reasonably accommodated Plaintiff’s
limitations in concentration and memory by limiting her to simple, routine tasks in a relatively
unchanging setting with repetitive processes and no work in a fast-paced setting or work with
high production demand (Tr. 5, 20). Again, neither Ms. Etzel nor Ms. Butler opined that
Plaintiff’s limitations in concentration and memory would cause more extensive functional
limitations than those assessed by the ALJ in his residual functional capacity finding. To the
extent that the reports of Ms. Etzel or Ms. Butler could potentially be interpreted to suggest
greater limitations than those assessed by the ALJ and the Appeals Council, the ALJ reasonably
found that further limitations were not warranted because they were not well-supported by the
objective medical evidence of record or other substantial evidence (R. 20-22).
22
Because the reports of Ms. Etzel and Ms. Butler did not demonstrate that Plaintiff was
more functionally limited than as assessed in the ALJ’s residual functional capacity finding, the
Court rejects Plaintiff’s argument that the Appeals Council ignored such evidence merely
because it did not explicitly evaluate such additional evidence in its written decision. See Smith
v. Apfel, 231 F.3d 433, 444 (7th Cir. 2000) (“[W]e have repeatedly noted that the ALJ is not
required to evaluate in writing every piece of evidence submitted. All we require is that the ALJ
sufficiently articulate his assessment of the evidence to assure us that the ALJ considered the
important evidence . . . [and to enable] us to trace the path of the ALJ’s reasoning.”) (quotations
and citations omitted).
F.
Conclusion
The ALJ relied on substantial evidence in concluding that Plaintiff is not disabled under
Social Security Administration standards. Substantial evidence supports the ALJ’s finding that
Plaintiff’s substance abuse disorders were a contributing factor material to the determination of
disability. Therefore, the Court affirms the ALJ’s decision.
SO ORDERED on September 27, 2012.
S/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE
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