ISAACS v. ASTRUE

Filing 29

ENTRY ON JUDICIAL REVIEW: The Commissioner's decision is REVERSED and REMANDED (see Entry for details). Signed by Magistrate Judge Mark J. Dinsmore on 4/22/2013.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

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FREDDIE J. ISAACS,
Plaintiff,
vs.
MICHAEL J. ASTRUE Commissioner of the
Social Security Administration,
Defendant.

No. 1:12-cv-00588-MJD-RLY

ENTRY ON JUDICIAL REVIEW
Plaintiff Freddie Isaacs requests judicial review of the final decision of the Commissioner
of the Social Security Administration (“Commissioner”) denying his application for Social
Security Disability Insurance Benefits (“DIB”) under Title II and for Supplemental Security
Income (“SSI”) under Title XVI of the Social Security Act (“the Act”). See 42 U.S.C. §§ 416(i),
423(d), & 1382c(a)(3). For the reasons set forth below, the decision of the Commissioner is
REVERSED.1
I.

Procedural History

Isaacs filed an application for DIB and SSI on October 21, 2009, alleging an onset of
disability of August 1, 2006. Isaacs’ applications were denied initially on January 13, 2010 and
on reconsideration on April 16, 2010. Isaacs requested a hearing, which was held on August 26,
2010 before Administrative Law Judge Ronald Jordan (“ALJ”). The ALJ held a subsequent
hearing on October 14, 2010. The ALJ denied Isaacs’ applications on January 14, 2011. The
1

The parties consented to the Magistrate Judge conducting all proceedings and ordering the entry of judgment in
accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. Any objections to or appeal of this decision must be
made directly to the Court of Appeals in the same manner as an appeal from any other judgment of a district court.
28 U.S.C. § 363(c)(3).

1

Appeals Council denied Isaacs’ request for review on March 17, 2012, making the ALJ’s
decision the final decision for purposes of judicial review. Isaacs filed his Complaint with this
Court on May 3, 2012.
II.

Factual Background and Medical History2

Isaacs has a long history of alcohol abuse stemming back to when he was eight years old.
He was diagnosed with bipolar disorder in 1996. In 2000, he sought treatment at Dunn Mental
Health Center where he was diagnosed as having bipolar disorder and anxiety along with alcohol
abuse. Isaacs then had a period of sobriety from March 2000 through 2001 and continued to seek
treatment for bipolar disorder, depression, and anxiety. He was prescribed Lithium during this
period and showed marked improvement in his treatments starting in April 2000. In December
2001, he was seen by Dr. Mark Jones. At this visit, Isaacs questioned whether he had bipolar
disorder and told Dr. Jones that he stopped taking his medication. Dr. Jones also noted that
Isaacs’ mental status examination was normal.
By 2006, it was clear that Isaacs had returned to drinking. He had been arrested and taken
to the emergency room on several occasions for drinking related incidents. He resumed
treatments for alcoholism, bipolar disorder and anxiety at Dunn Mental Health Center in
September 2009. He also had court-mandated treatments at Meridian Services. At Meridian,
Isaacs began seeing case manager Joyce Harris and Dr. Carol Rizvi. During these treatments,
Isaacs habitually reported having hallucinations of his dead parents. In November 2009, Dr.
Rizvi diagnosed Isaacs with bipolar I disorder, alcohol dependence, and personality disorder.
In December 2009, the State Agency psychologist Dr. Amy Johnson completed a
Psychiatric Review Technique. She reported that Isaacs met listing 12.09 Substance Addiction
2

Because Isaacs only disputes the ALJ’s findings regarding his mental impairments, the facts are limited to the
discussion of the mental impairments and will not discuss the physical impairments.

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Disorders. She diagnosed him as having bipolar disorder and alcohol dependence. While Dr.
Johnson found Isaacs’ statements to be credible, she also found that Isaacs’s alcohol abuse was
material.
Isaacs stopped drinking in February 2010 and has remained sober through the time of the
hearings. He continued to seek treatment for his mental health conditions. Isaacs was examined
by Dr. David Kuhaneck in February 2010. He claimed to hear music and voices, but denied
hallucinations. Dr. Kuhaneck diagnosed Isaacs with bipolar I disorder, panic disorder with
agoraphobia, and alcohol abuse. In March 2010, Ms. Harris completed a Report of Psychiatric
Status countersigned by Dr. Kuhaneck opining that Isaacs would be “unable to do the routines
required for a job” because of his “anxiety, poor concentration and memory, and racing
thoughts.” [R. at 446-452.]
Isaacs began treatment with Dr. Boris Imperial in March 2010. He told Dr. Imperial that
he often saw and talked to his dead parents. Dr. Imperial diagnosed him with bipolar disorder,
panic disorder with agoraphobia and alcohol abuse. Dr. Imperial treated Isaacs approximately
once per month through at least June 2010. In May 2010, Dr. Imperial completed a Medical
Source Statement. In his report, Dr. Imperial opined that Isaacs would have marked to extreme
limitation following and carrying out work-related instructions due to his mental impairments.
Dr. Imperial also noted that, although Isaacs has a history of alcohol dependence, he had been
alcohol-free since February 2010. In this report, Dr. Imperial also notes that Isaacs’ diagnosis
was changed to paranoid schizophrenia at a recent psychiatrist appointment. In June 2010, Dr.
Imperial continued to diagnose Isaacs with schizophrenia, panic disorder with agoraphobia, and
alcohol abuse.

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At the hearing medical expert Dr. Georgia Anne Pitcher testified with regard to Isaacs’
mental impairments. She testified that it was highly unusual for a person to be diagnosed with
onset schizophrenia at Isaacs’ age. Dr. Pitcher opined that Isaacs does suffer from the symptoms
alleged, but that she believed that a year of sobriety was needed to determine whether the
symptoms would continue absent alcoholism. She ultimately concluded that at that point in time,
alcohol abuse was material to Isaacs’ symptoms.
III.

Applicable Standard

To be eligible for SSI and DIB, a claimant must have a disability under 42 U.S.C. § 423.3
Disability is defined 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.” 42 U.S.C. § 423(d)(1)(A). In order to be found disabled, a claimant must demonstrate
that his physical or mental limitations prevent him from doing not only his previous work, but
any other kind of gainful employment which exists in the national economy, considering his age,
education, and work experience. 42 U.S.C. § 423(d)(2)(A).
In determining whether a claimant is disabled, the Commissioner employs a five-step
sequential analysis. At step one, if the claimant is engaged in substantial gainful activity he is not
disabled, despite his medical condition and other factors. 20 C.F.R. § 404.1520(b). At step two,
if the claimant does not have a “severe” impairment (i.e., one that significantly limits his ability
to perform basic work activities), he is not disabled. 20 C.F.R. § 404.1520(c). At step three, the
Commissioner determines whether the claimant’s impairment or combination of impairments
3

In general, the legal standards applied in the determination of disability are the same regardless of whether a claimant seeks DIB
or SSI. However, separate, parallel statutes and regulations exist for DIB and SSI claims. Therefore, citations in this opinion
should be considered to refer to the appropriate parallel provision as context dictates. The same applies to citations of statutes or
regulations found in quoted court decisions.

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meets or medically equals any impairment that appears in the Listing of Impairments, 20 C.F.R.
pt. 404, subpt. P, App. 1, and whether the impairment meets the twelve-month duration
requirement; if so, the claimant is disabled. 20 C.F.R. § 404.1520(d). At step four, if the claimant
is able to perform his past relevant work, he is not disabled. 20 C.F.R. § 404.1520(f). At step
five, if the claimant can perform any other work in the national economy, he is not disabled. 20
C.F.R. § 404.1520(g).
If the ALJ determines that the claimant is disabled and there is medical evidence of a
drug addiction or alcoholism, the ALJ must determine whether the drug addiction or alcoholism
is a contributing factor material to the determination of disability. 20 C.F.R. § 404.1535(a).
Under the Social Security Act, “an individual shall not be considered to be 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). To determine whether
the alcoholism is a material factor, the ALJ must determine whether the claimant will still be
disabled if he stopped using alcohol. 20 C.F.R. § 404.1535(b)(1). To make this determination,
the ALJ must evaluate which of the current physical and mental limitations would remain if the
claimant stopped using alcohol and then determine whether any or all of the remaining
limitations would be disabling. 20 C.F.R. § 404.1535(b)(2). If the ALJ determines that the
claimant’s remaining limitations are disabling, then he is disabled independent of the alcoholism
and the ALJ must find that the alcoholism is not a contributing factor material to the
determination of disability. 20 C.F.R. § 404.1535(b)(2)(ii). If the ALJ determines that the
remaining limitations are not disabling, then the ALJ must find that the alcoholism is a
contributing factor material to the determination of disability, and, therefore, the claimant is not
disabled. 20 C.F.R. § 404.1535(b)(i).

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In reviewing the ALJ’s decision, the ALJ’s findings of fact are conclusive and must be
upheld by this court “so long as substantial evidence supports them and no error of law
occurred.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). “Substantial evidence
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. This court may not reweigh the evidence or substitute its judgment for that of
the ALJ. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). The ALJ “need not evaluate in
writing every piece of testimony and evidence submitted.” Carlson v. Shalala, 999 F.2d 180, 181
(7th Cir. 1993). However, the “ALJ’s decision must be based upon consideration of all the
relevant evidence.” Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). In order to be affirmed,
the ALJ must articulate his analysis of the evidence in his decision; while he “is not required to
address every piece of evidence or testimony,” he must “provide some glimpse into [his]
reasoning . . . [and] build an accurate and logical bridge from the evidence to [his] conclusion.”
Dixon, 270 F.3d at 1176.
IV.

The ALJ’s Decision4

The ALJ first considered whether Isaacs would be disabled based on all of his
impairments, including the substance use disorder. Applying the five-step analysis, the ALJ
found at step one that Isaacs had not engaged in substantial gainful activity since the alleged
onset date of August 1, 2006. At step two, the ALJ found that, since the alleged onset date,
Isaacs had the following severe impairments: alcohol dependence, mental impairments variously
diagnosed as bipolar, anxiety, depression, and degenerative changes of the spine. The ALJ did
not include the diagnosis of schizophrenia as a severe impairment. The ALJ did not believe it
was an accurate diagnosis because there was no such diagnosis in the medical evidence of
4

Because Isaacs does not challenge the ALJ’s findings regarding his physical impairments, the Court limits its
discussion of the ALJ’s decision to the mental impairments.

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record, there were no prior allegations of audiovisual hallucinations or paranoia, and the medical
expert testified that it was “highly unusual for someone to have onset of schizophrenia at the
claimant’s age.” [R. at 15.]
At step three, the ALJ determined that, including the substance use disorder, Isaacs’
impairments met sections 12.04, 12.06, and 12.09 of 20 C.F.R. Part 404, Subpart P, Appendix 1
(20 C.F.R. §§ 404.1520(d) and 416.920(d)). Accordingly, Isaacs would be found to be “disabled”
under the Act.
The ALJ next considered whether Isaacs would be disabled if he stopped the substance
use. The ALJ determined at step two that, if Isaacs stopped the substance use, Isaacs would
continue to have a severe impairment or combination of impairments. However, at step three, the
ALJ found that Isaacs would not have an impairment or combination of impairments that met or
medically equaled any of the listed impairments.
The ALJ also determined that, if Isaacs stopped the substance use, he would have the
following residual functional capacity (“RFC”): lift, carry, push, pull twenty pounds occasionally
and ten pounds frequently; stand and walk six hours in an eight hour day and sit six hours;
occasional balance, stop crouch, crawl, kneel and climb; simple, repetitive tasks requiring little
in the way of independent judgment or analysis; work goals on a daily basis should be fairly
static and he should work in only a mild to moderately stressful work environment; he should not
be required to have contact with the general public to perform the functions of the jobs and he
should have only occasional, superficial contact with co-workers.
At step four, the ALJ determined that, if Isaacs stopped the substance use, he would be
unable to perform past relevant work. At step five, the ALJ determined that, if Isaacs stopped the
substance use, considering his age, education, work experience, and RFC, there would be a

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significant number of jobs in the national economy that Isaacs could perform. Finally, the ALJ
found that, because Isaacs would not be disabled if he stopped the substance use, Isaacs’
substance use disorder is a contributing factor material to the determination of disability.
Therefore, Isaacs was not disabled within the meaning of the Act.
V.

DISCUSSION

The ALJ’s decision is not supported by the medical evidence and, therefore, remand is
required. The ALJ’s primary reason for finding that Isaacs is not disabled is that Isaacs’ mental
conditions improved when he was not drinking and therefore they would likely improve again if
Isaacs again stopped drinking. The ALJ based this finding on the last period of time when Isaacs
was sober in 2001, which was almost ten years prior to the hearing. However, as documented by
the medical evidence of record, Isaacs’ conditions have not improved, nor are these conditions
the same as they were ten years before. For example, Isaacs did not have hallucinations in 2001,
nor did Isaacs have panic disorder with agoraphobia. Most importantly, the ALJ acknowledges
that Isaacs would continue to have a severe impairment or combination of impairments but fails
to specify which impairments remain. 20 C.F.R. § 404.1535(b)(2). The record also shows that,
when Isaacs stopped drinking around March 2000, his improvements were almost immediate, as
demonstrated by a treatment visit the following April. Isaacs continued to improve through
December 2001. He was also prescribed Lithium and Celexa for his bipolar disorder and
depression. The ALJ notes that Isaacs’ condition improved when sober to the point where Isaacs
questioned whether he even had bipolar disorder at a mental status examination and stop taking
his prescribed medication. [R. at 19.] The ALJ argued that, since this mental status examination
was “normal, . . . it is clear that sustained abstinence from alcohol results in almost total
elimination of psychological symptoms.” [R. at 20.]

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The ALJ’s finding is analogous to that of Kangail v. Barnhart, 454 F.3d 627 (7th Cir.
2006). In Kangail, the ALJ found that the medical witnesses had contradicted themselves when
they said that plaintiff’s mental illness was severe, yet stated that she was behaving normally at
the office visits. Kangail, 454 F.3d at 629. The ALJ even attributed Kangail’s bipolar disorder to
the substance abuse. Id. The 7th Circuit held that there was no contradiction as bipolar disorder is
episodic and, although there is a correlation between the two conditions, the disorder itself
cannot be caused by substance abuse. Id. (citing American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders 187, 354 (4th ed.1994); Frederick K. Goodwin &
Kay Redfield Jamison, Manic–Depressive Illness 219–25 (1990); Willem A. Nolen et al.,
“Correlates of 1–Year Prospective Outcome in Bipolar Disorder: Results from the Stanley
Foundation Bipolar Network,” 161 Am. J. Psychiatry 1452 (2004); Marcia L. Verduin et al.,
“Health Service Use Among Persons With Comorbid Bipolar and Substance Use Disorders,” 56
Psychiatric Services 475–76 (2005)). In fact, the 7th Circuit found the opposite to be true: that
bipolar disorder can actually precipitate substance abuse. Id. (citations omitted).
There is no doubt from the record that Isaacs’ substance abuse may have aggravated his
mental illness. However, “the fact that the substance abuse aggravated [the] mental illness does
not prove that the mental illness itself is not disabling.” Kangail v. Barnhart, 454 F.3d 627, 629
(7th Cir. 2006) (citing Brown v. Apfel, 192 F.3d 492, 499 (5th Cir.1999); Sousa v. Callahan, 143
F.3d 1240, 1245 (9th Cir.1998)). Even though Isaacs stopped taking the medication to control his
mental illness, it is quite possible – although not established in the record – that discontinuing the
medication may have led to a relapse. What is established in the record is that Isaacs has a long
history of bipolar disorder and his symptoms have not improved since he stopped drinking in
March 2010. However, the ALJ failed to take any of this into consideration. Therefore, remand is

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required to determine which of Isaacs’ mental impairments would remain in the absence of
substance use and the severity of such impairments.
The ALJ also rejected testimony and medical evidence from Isaacs’ treating sources.
While recognizing that Dr. Imperial is a “treating source” [R. at 15], the ALJ completely rejects
the opinion of Dr. Imperial. First, the Court notes that all treatments and diagnoses by Dr.
Imperial were made while Isaacs was sober. A treating source’s opinion is normally given
controlling weight if it is adequately supported by objective medical evidence and consistent
with other substantial evidence in the record. Moss v. Astrue, 555 F.3d 556, 560 (7th Cir. 2009);
Harlin v. Astrue, 424 F.App’x 564, 567 (7th Cir. 2011). If the ALJ fails to give controlling
weight, the ALJ must offer “good reasons” by evaluating the opinion considering the factors set
forth in the regulations. Larson v. Astrue, 615 F.3d 744, 749 (7th Cir. 2010); Moss, 555 F.3d at
561; 20 C.F.R. § 404.1527 (c). The ALJ’s only reason for discrediting Dr. Imperial’s opinion is
that the ALJ did not believe that Dr. Imperial’s diagnosis of schizophrenia was a true diagnosis
because Dr. Imperial was “relying on an inaccurate medical history.” [R. at 15.] The ALJ based
this opinion on Dr. Imperial’s statement that schizophrenia was previously diagnosed, although
there was no such diagnosis in the medical record and there were no prior allegations of
audiovisual hallucinations or paranoia. The ALJ also referred to Dr. Pitcher, who testified that it
is highly unusual for someone to have onset of schizophrenia at Isaacs’ age. However, the fact
that it is “unusual” for a person to have onset of schizophrenia at that age, does not mean that it
is not possible. Moreover, although there does not appear to be a previous diagnosis of
schizophrenia in the record (it would have helped Isaacs to provide such medical record if it
existed), there were documented allegations of audiovisual hallucinations and paranoia
throughout the record to support Dr. Imperial’s diagnosis. [R. at 315, 317, 320, 474, 502, 539,

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575.] Further, Dr. Imperial did not diagnose Isaacs on the very first visit after halfheartedly
looking at the medical record. It wasn’t until several months and visits later that Dr. Imperial
changed his diagnosis, having had time to review the record and Isaacs. Even if this Court were
to accept the ALJ’s opinion regarding the diagnosis of schizophrenia, and strike the diagnosis,
the remainder of Dr. Imperial’s opinion is very much consistent with the record, especially
Isaacs’ other treating sources, Joyce Harris, Dr. Kuhaneck, and Dr. Rizvi. The ALJ does not
provide any other reason for discrediting Dr. Imperial’s entire opinion with regard to Isaacs’
symptoms and therefore, remand is required to determine the proper weight to attribute Dr.
Imperial’s opinion.
The ALJ stated that he considered the Report of Psychiatric Status by Joyce Harris,
countersigned by Dr. Kuhaneck, which was completed March 4, 2010. In this report, Ms. Harris
and Dr. Kuhaneck concluded that Isaacs was unable to work due to anxiety, poor concentration
and memory, and racing thoughts. [R. 446-451.] The ALJ discredited this opinion because it was
made “less than a month after the claimant reportedly quit drinking” and that with sustained
abstinence, Isaacs’ ability to function improves. [R. at 21.] As discussed above, the record
reflects that Isaacs’ condition had not improved since he quit drinking in 2010. Further, Joyce
Harris gave almost an identical assessment at the second hearing, seven months after providing
the report. Ms. Harris testified that Isaacs had intense anxiety and agoraphobia, low
concentration, difficulty focusing on projects, and difficulty being around people. She further
testified that she did not believe that Isaacs was capable of working. While the ALJ took this
testimony into consideration, id., he found that it was unsupported by the evidence of record. As
noted, this testimony is consistent with the Report of Psychiatric Status countersigned by Dr.
Kuhaneck, and the opinion of Dr. Imperial.

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The ALJ also considered the opinions of the non-examining State Agency physicians. Dr.
Johnson completed Psychiatric Review Technique in December 2009, prior to when Isaacs
became sober which was affirmed later by a reviewing physician. The ALJ recognized that she
did not have the benefit of the most recent medical source statements, current medical records, or
the hearing testimony. [R. at 21.] Nevertheless, the ALJ stated that “their reports essentially
support the conclusions stated herein. To the degree that [their conclusions] differ [sic], their
reports are accorded little weight, as the opinions were based on only part of the current evidence
of record.” Id. Here, the ALJ appears to selectively consider the evidence only when it is in line
with his own opinion and discredits all other evidence. This is impermissible. Clifford v. Apfel,
227 F.3d 863, 817 (7th Cir. 2000) (The ALJ may not “select and discuss only that evidence that
favors his ultimate conclusion.”) (citation omitted). The ALJ appears to do the same with
Medical Expert Dr. Pitcher’s testimony. While ultimately concluding that alcohol abuse was
material to the finding of disability, Dr. Pitcher also testified that at eight months, it was too early
to tell whether Isaacs’ conditions will improve with remission. Dr. Pitcher testified that it takes
one year of abstinence to determine a person’s ability to function without alcohol.5 The ALJ
rejected Dr. Pitcher’s conclusion that it was too early to tell in favor of the testimony that aligned
with the ALJ’s conclusions. More importantly, however, it was impermissible for the ALJ to
accept the opinion of the medical expert over that of his treating sources without considering the
factors outlined in the regulations. Moss, 555 F.3d at 561.

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Isaacs is correct in that there is no legal support for a one year period of sobriety to determine whether Isaacs’
mental impairments will remain. However, the majority of the medical evidence is during a period where Isaacs was
abusing alcohol with only a few short months where Isaacs was sober since February 2010. On remand, the Court
encourages Isaacs and the Commissioner to obtain updated medical evidence to determine the severity of Isaacs’
mental impairments when not abusing alcohol.

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Because the ALJ did not properly determine which mental impairments remain since
Isaacs stopped drinking and rejected evidence from Isaacs’ treating sources without first
considering the factors set forth in the regulations, remand is appropriate.
VI.

CONCLUSION

For the aforementioned reasons, substantial evidence does not support the ALJ’s
determination that Isaacs is not disabled and the Commissioner’s decision is REVERSED and
REMANDED.

Date: 04/22/2013

Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana

Distribution:
Patrick Harold Mulvany
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

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