Hoefling v Commissioner of Social Security

Filing 17

ORDER pursuant to sentence four of 42 USC Section 405(g), decision of the ALJ is reversed, and the Commissioner is directed to compute and award disability benefits to Plaintiff with an onset date of 2/14/2005. Signed by Senior Judge Donald E O'Brien on 8/12/2010. (des)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION JASON WADE HOEFLING, Plaintiff, vs. COMMISSIONER OF SOCIAL SECURITY, Agent of Michael J. Astrue, Defendant. ____________________ I. INTRODUCTION AND BACKGROUND Plaintiff Jason Wade Hoefling (hereinafter "Hoefling"), seeks review of the Commissioner's decision that he is not disabled under Title II of the Social Security Act (the "Act"), 42 U.S.C. §§ 401 et seq., and Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. by Hoefling an sought review Law of the No. 09-CV-4041-DEO ORDER

Commissioner's

decision

Administrative

Judge

("ALJ"), who determined that Hoefling was not disabled under the Act. Tr. 12-24. Hoefling subsequently sought review by

the Social Security Administration's Appeals Council, which was denied (Tr. 6-11), making it the final decision of the Commissioner. This Court has authority to review a final For

decision by the Commissioner under 42 U.S.C. § 405(g).

the reasons set forth herein, this Court reverses the ALJ's decision benefits. Hoefling was born on July 31, 1969, and was 38 years old on the date the ALJ issued his decision. old. He is now 40 years and directs the Commissioner to award Hoefling

He has a GED and has past relevant work history as a

cook, a cashier, an assembler, and an industrial maintenance worker. he is Tr. 168. disabled In his disability report, Hoefling alleges because of depression, bipolar Tr. 147. disorder, Hoefling

agoraphobia, and a left leg impairment.

initially alleged a disability onset date of July 1, 1989; however, Hoefling later amended his alleged onset date to April 11, 2003. His date last insured is December 31, 2008.

Tr. 15. Thus, Hoefling has the burden to establish disability by that date. A. The ALJ's Decision

The ALJ uses a five-step sequential analysis to determine whether a claimant is disabled. 416.920. A claimant must prove: 20 C.F.R. §§ 404.1520, (1) that he has not engaged

in substantial gainful activity; (2) that he has a medically determinable severe impairment, as that term is defined in the 2

regulations; and either (3) that his impairment meets or equals a presumptively disabling impairment listed in the regulations (if so, the claimant is presumed to be disabled, and no further analysis is needed); or (4) that his impairment prevents him from performing his past relevant work. 20

C.F.R. § 404.1520. If the claimant carries his burden to this point, then the burden shifts to the Commissioner to prove there are other jobs the claimant can perform. Gonzales v.

Barnhart, 465 F.3d 890, 894 (8th Cir. 2006); Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). In this case, the ALJ determined at step one that

Hoefling had not engaged in substantial gainful activity since April 11, 2003. Hoefling had Tr. 18. severe bipolar At step two, the ALJ determined that of panic and disorder with

impairments disorder

agoraphobia,

II,

major

depressive

disorder, recurrent episode (20 C.F.R. § 404.1520(c) and 416.920(c)). Tr. 18. At step three, the ALJ found that

Hoefling's impairments, including the substance use disorders, met listings 12.04 and 12.06 of 20 C.F.R. § Part 404, Subpart P, Appendix 1. The ALJ found that Hoefling met the "paragraph A" criteria because 3

[Hoefling] has medically documented depressive syndrome characterized by disturbance of sleep, feelings of guilt, difficulty concentrating, and thoughts of suicide; manic syndrome characterized by hyperactivity, decreased need for sleep and distractibility; and bipolar syndrome with periods manifested by the full symptomatic picture of both manic and depressive syndromes. Tr. 18. The ALJ found that Hoefling met the "paragraph B"

criteria because he had marked restriction in activities of daily living, moderate difficulties in social functioning, and marked difficulties with regard to concentration, persistence or pace. Tr. 19. The ALJ further determined that Hoefling Tr.

had experienced one to two episodes of decompensation. 19.

The ALJ next determined that Hoefling was credible

concerning his symptoms and limitations. Although the ALJ found at step three that Hoefling's impairments, including his substance use, left him disabled, the ALJ was required to analyze whether Hoefling's drug and alcohol use was a contributing factor material to his

disability.

Thus, the ALJ proceeded to examine whether

Hoefling would have been disabled had he stopped his substance use. The ALJ determined that if Hoefling stopped his

substance use, Hoefling had the following residual functional 4

capacity: to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) and 416.967(a) with the following additional non-exertional functional limitations, all based on mental impairments. His ability to understand, remember, and carry out short simple instructions has no limitation; his ability to understand, remember, and carry out detailed instructions at the unskilled level is moderately limited; his ability to make judgments on simple work related decisions has no limitations, his ability to interact with the public is markedly limited; his ability to interact with coworkers is mildly limited if the contact with the co-workers and supervisors is superficial, brief, and directly related to the work that he is required to perform; his ability to respond to work pressure in a usual work setting is moderate; ability to respond to work changes in a usual work setting is moderately limit[ed]. Tr. 20-21. After consulting with a vocational expert ("VE"),

the ALJ concluded that Hoefling could not perform his past relevant work, but there were a significant number of jobs in the national economy that Hoefling could perform. Tr. 23.

Thus, the ALJ found that "because Hoefling would not be disabled if he and is a of stopped the substance use (20 C.F.R. §

404.1520(g) disorders

416.920(g)), contributing disability 5

[Hoefling's] factor C.F.R.

substance to

use the and

material §

determination

(20

404.1535

416.935)."

Tr. 23.

The ALJ found that Hoefling was not

disabled under the Act. II. LAW AND ANALYSIS In reviewing whether this the case, ALJ's this Court is required supported to by

determine

findings

are

substantial evidence on the record as a whole.

See 42 U.S.C.

§ 405(g); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than a preponderance of

the evidence, but it is enough that a reasonable mind would find it adequate to support the ALJ's decision. v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). See Johnson As long as

there is substantial evidence in the record that supports the ALJ's decision, the Court may not reverse it simply because substantial evidence exists in the record that would have supported a contrary outcome or because the Court would have decided the case differently. See Haley v. Massanari, 258 If, after reviewing the

F.3d 742, 747 (8th Cir. 2001).

record, it is possible to draw two inconsistent positions from the evidence and one of those positions represents the

findings of the ALJ, the decision of the ALJ must be affirmed. See Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000). 6

Still, in reviewing the record this Court must remain mindful of the ALJ's "duty to develop the record fully and fairly" in the non-adversarial 360 F.3d administrative 834, 838 (8th proceeding. Cir. 2004); Snead Stormo v. v.

Barnhart,

Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). In this case, the principle question the Court must consider is whether the ALJ's finding that Hoefling's

substance use was a contributing factor material to the determination of disability was supported by substantial

evidence on the record as a whole.

42 U.S.C. § 423(d)(2)(C)

states: "An individual shall not be considered to be disabled for purposes of this subchapter 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." In Brueggemann v. Barnhart, 348 F.3d 689 (8th Cir. 2003), the Eighth Circuit set out the

appropriate procedure the ALJ must follow when considering whether a claimant's substance use was a contributing factor material to a determination of disability. First, the ALJ

must evaluate whether the claimant is disabled "using the standard five-step approach 7 described in 20 C.F.R.

§ 404.1535(a) without segregating out any effects that might be due to substance use disorders." Id. at 694.

If the gross total of a claimant's limitations, including the effects of substance use disorders, suffices to show disability, then the ALJ must next consider which limitations would remain when the effects of the substance use disorders are absent. Pettit v. Apfel, 218 F.3d 901, 903 (8th Cir. 2000); 20 C.F.R. § 404.1535(b)(2). We have previously noted that when the claimant is actively abusing alcohol or drugs, this determination will necessarily be hypothetical and therefore more difficult than the same task when the claimant has stopped. Pettit, 218 F.3d at 903. Even though the task is difficult, the ALJ must develop a full and fair record and support his conclusion with substantial evidence on this point just as he would on any other. Id. at 694-95. Only after the ALJ has made an initial determination 1) that [Claimant] is disabled, 2) that drug or alcohol use is a concern, and 3) that substantial evidence on the record shows what limitations would remain in the absence of alcoholism or drug addiction, may he then reach a conclusion on whether [Claimant's] substance use disorders are a contributing factor material to the determination of disability. If this process proves indeterminate, an award of benefits must follow. Id. at 695. 8

In this case, the ALJ properly found that Hoefling was disabled at step three. The ALJ subsequently followed the

necessary procedure by analyzing the effect of Hoefling's substance use on his disability and found that such use was a contributing disability. factor material to the ALJ's finding of

The ALJ determined that Hoefling's statements

concerning the intensity, persistence and limiting effects of his impairments were not credible. the ALJ cited Hoefling's "lack In making this finding, of commitment" to his

psychotherapy and his testimony that he did not like alcohol and had not used alcohol in three years, which the ALJ found contrary to Hoefling's alcohol use as evidenced in the record. Tr. 22. The ALJ further noted, [Hoefling] also stated that he does not like being around people or going out in public but uses public transportation as a means to get around. Finally, [Hoefling] testified that he does not hang around his old friends because they use drugs and the only friend he currently has is his cousin but his cousin also uses drugs. Tr. 22. his The ALJ noted that once Hoefling was compliant with and treatment Tr. 22. appointments, Hoefling

medication

progressively improved.

The ALJ determined that if

Hoefling stopped his substance use, he would not be disabled. 9

After review of the record, this Court is persuaded the ALJ's findings with respect to the effect of Hoefling's alcohol and drug use on his impairments are not supported by substantial evidence on the record as a whole. While the

record makes clear that Hoefling had problems with alcohol and drug use (and he in fact admits as much), his impairments remained disabling even after he ceased most, if not all, of his substance use. Thus, the Court finds that Hoefling would

be disabled even in absence of his substance use, and the ALJ's findings to the contrary are not supported by

substantial evidence on the record as a whole. Hoefling was a drug addict from fairly early on in his life. His most common drug use involved methamphetamine and The medical records and treatment notes show that

marijuana.

Hoefling stopped his methamphetamine use in or around February 2005. He admitted to continued marijuana use in February 2005 and testified at the October 25, 2007, ALJ hearing that he used marijuana four times in the previous five years. 376. The record reveals that Hoefling was hospitalized at St. Luke's Regional Medical Center on two occasions in 2005. 10 The Tr.

first hospitalization was from February 14 - 17. Tr. 208-228. While hospitalized, Hoefling reported having suicidal thoughts after being increasingly depressed and after losing his job the prior weekend. Tr. 209. He stated he had difficulty

maintaining a job and that he did not have any meaningful relationships. Tr. 209. He also stated that he had been off

methamphetamine for approximately two years, but had used them once or twice in the previous several months. Tr. 210.

Hoefling further stated that he used alcohol on a binge pattern occasionally. He stated that his drug and alcohol use was much decreased from when he was younger. Tr. 210.

Upon release from the hospital, Hoefling was admitted to Cherokee Mental Health Institute. Tr. 229-252. Of his

diagnoses while at Cherokee, none mentioned drug or alcohol abuse or dependence even though the records showed that the medical professionals at Cherokee were aware of his substance use. Tr. 229, 251.

Hoefling

subsequently

sought

treatment

with

Licensed

Independent Social Worker ("LISW") Gary Lewis.

On March 14,

2005, Lewis diagnosed Hoefling with bipolar disorder and 11

severe agoraphobia, as well as polysubstance abuse, in that he last used methamphetamine two years prior and marijuana four days prior. Tr. 254-257. On March 23, 2005, Lewis noted that

Hoefling talked about "the manner in which his continued use of pot and alcohol is an extension of his dependence for drugs albeit no longer methamphetamine." Tr. 253. Lewis further

noted that Hoefling was "fearful of leaving the house" and that he almost didn't show up at the appointment because of that fear. Tr. 253.

Hoefling's second hospitalization occurred on April 1 4, 2005. Tr. 261-282. He was admitted for suicidal and On the date of his admission,

depressed thoughts.

Tr. 278.

Hoefling was assessed a Global Assessment of Functioning ("GAF") score of 39. Tr. 265. Tr. 265. His GAF at discharge was a 45.

Furthermore, no drugs or alcohol were detected in Tr. 267, 278. Dr. Dean classified Hoefling

Hoefling's body.

in part as an "extremely despondent individual who has a great deal of psychomotor Tr. 281. retardation... His mood is very

depressed."

To support the ALJ's conclusion that Hoefling's substance use was a contributing factor material to his finding of 12

disability, the ALJ determined that "once compliant with his medication and treatment appointments, [Hoefling] reported progressive improvements." Tr. 22. As a sign that Hoefling

improved, the ALJ cited to Dr. Duggan's April 2, 2005, report regarding Hoefling's condition while in the hospital, along with Siouxland Mental Health treatment records subsequent to Hoefling's discharge. report on Hoefling's Regarding Dr. Duggan's April 2, 2005, condition, Dr. Duggan noted that

"[Hoefling] states that he has been doing comparatively well." Tr. 263. This Court, however, finds that "comparatively well" should be viewed in a relative context given Hoefling's suicidal and depressed condition upon entering the hospital just one day prior. Evidence of Hoefling's GAF scores upon As

admission and discharge further support this finding.

mentioned, the record shows that on April 1, 2005, Hoefling's GAF upon admission to the hospital was 39. Hoefling's GAF upon discharge was 45. On April 4, 2005,

The Court seriously

questions the ALJ's reliance on Dr. Duggan's report when Hoefling's maximum GAF during his hospital stay was 45, and

13

was 39 just one day prior to the report. The Court further questions the

1

ALJ's

reliance

on

Hoefling's treatment records at Siouxland Mental Health as supportive of the ALJ's finding that Hoefling progressively improved. Upon his discharge from the hospital in April 2005, Hoefling sought continued treatment at Siouxland Mental Health with Gary Lewis and Laurie Warren. Tr. 289-366. These

records show that Hoefling virtually eliminated his alcohol and drug use. However, while there were certainly sporadic

periods of improvement, Hoefling's impairments never ceased and in some cases appeared to worsen, especially with respect to his agoraphobia
1 2

and panic attacks.

A GAF of 45 (his highest GAF while at the hospital) reveals "serious symptoms (e.g., suicidal ideation...) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders, at 34 (4th ed. 2000). See also Brueggemann, 348 F.3d at 695 (A GAF of 50 "reflects serious limitations in the patient's general ability to perform basic tasks of daily life, and the record shows that the VE considered a claimant with a GAF of 50 unable to find any work."). Thus, even were this Court to rely on his highest GAF while in the hospital, Hoefling still had very serious limitations. "Agoraphobia is a fear of being in places where help might not be available. It usually involves fear of crowds, (continued...) 14
2

In November 2006, Hoefling expressed his "intense fear of leaving his apartment" and "his severe lack of trust of others." Tr. 315. He also reported that he "feels like an Tr. 319. Lewis suggested

emotional wreck, forgets easily."

that Hoefling "set a goal to get out of his house each day as a way to confronting the tendency to become agoraphobic." Tr. 320. In December 2006, Hoefling stated that he was "kind of depressed and really does not know why." found that he had major depressive Tr. 322. Warren

disorder,

recurrent

episode, moderate degree, as well as panic disorder with agoraphobia. Tr. 322.

In January 2007, Hoefling stated he was doing "OK," that his depression was a little better, but that his anxiety was still high." Tr. 326. He also mentioned he was "fearful of

(...continued) bridges, or of being outside alone... Agoraphobia often accompanies another anxiety disorder, such as panic disorder or a specific phobia." Symptoms associated with agoraphobia, and especially with Hoefling in this case, include: anxiety or panic attack; becoming housebound for prolonged periods of time; feelings of detachment or estrangement from others; and feelings of helplessness. Medline Plus Medical Encyclopedia, http://www.nlm.nih.gov/medlineplus/print/ency/article/000931 .htm (last visited July 7, 2010). 15

2

others, feels angry at them and has no insight into what this is about for him." Tr. 329.

In March 2007, Hoefling reported that he struggled to get out of the house for a walk around the block daily. Lewis reported that Hoefling was "visibly Tr. 334. of

frightened

leaving his house, continues with strong cravings for the methamphetamine." Lewis stated that he needed to see Hoefling in two weeks, as opposed to three. He stated: "[t]he purpose

is to schedule something to get him out of the house, feel safe in the office. He is too frightened to go to recovery

meetings, therefore his reactions are more intensive as he remains essentially alon[e]." Tr. 336.

In April 2007, Hoefling reported that the increased medication was helping him. Lewis noted that "he seems to

hold his own, but not making much progress as he remains with panic and anxiety and paranoid ideas." Tr. 340.

In May 2007, Warren noted that "[Hoefling] is clean and sober and exercises as well. Hoefling has occasional panic Tr. 344. He

attacks and it is mostly when he has to be out."

was able to get out of the house to take walks and do yard work. Tr. 347. 16

In June 2007, Lewis reported:

"[H]e said he worries for

a day, the bus ride to his agency, but he is persisting and not objecting from trying. He goes grocery shopping with his

mother, mows the lawn and keeps his appointments, otherwise stays indoors much of the time. He remains sober ... I

suggest he begin considering attending a movie with his mother... He isn't ready for this, agreed to consider." 351. Tr.

Warren's notes reflect that Hoefling reported his Tr.

anxiety was at an all time high and he did not know why. 353. Warren also states:

"[Hoefling] is not in contact with

friends and family.

Physically [Hoefling] is feeling OK.

[Hoefling] also complains of having bad panic attacks as well." Tr. 353.

In July 2007, Hoefling reported that he was trying to get out of the house more and confront his fears. Tr. 355. He Tr.

stated he believed the medications were more helpful. 355.

He later reported that "he has been doing more in and

outside the home," but that he "still struggles with the paranoid feelings." Tr. 356. He also reports that he was

"clean and sober and ... that he is trying really hard to remain that way." "[Hoefling] states that he still has a 17

little anxiety and panic when he leaves the house but that is also way down." Tr. 357.

In August 2007, he reported anger problems but that he was doing better with his symptoms overall, and that he was more hopeful of the future. Tr. 359.

In September 2007, the report shows that "he is still getting a few highs and lows and he states that he is getting panicky when he has to leave the house and he is isolating." Tr. 360. Furthermore, "[Hoefling] appeared more irritated as He continues

he struggles with moderate to severe paranoia.

with social anxiety and agoraphobic reactions. His goal is to remain sober and work through the mental and social issues of remaining sober." Tr. 362.

In October 2007, Hoefling stated that he stayed indoors much of the time and had a fear of others. about his "increasing loneliness." Tr. 363. He also talked

This Court has outlined these records to show that, when reviewed in their entirety, they reveal Hoefling experienced improvement at times, but his agoraphobic, panic, and

depressive symptoms and impairments never ceased and perhaps even worsened. Neither the hospital records nor the therapy 18

treatment notes on which the ALJ relied support a finding that Hoefling's symptoms progressively improved and, as a result, Hoefling's substance use was a contributing factor material to his disability. These treatment records are, moreover, consistent with Hoefling's ALJ testimony regarding the severity of his

symptoms and impairments.

At the October 25, 2007, ALJ

hearing, Hoefling testified that he was "depressed pretty much all the time." Tr. 381. He stated that he did not leave the

house to go be with people or meet with people, and that he had panic attacks if he left the house. Tr. 383. When asked

about the last time he left the house and had a panic attack, Hoefling testified that he had a panic attack on his last visit to his therapist. Tr. 383. He stated the panic attack Tr. 384. Regarding his that he Some

occurred while he was on the bus. panic attacks generally,

Hoefling

testified

experienced them ten or eleven times per week.

Tr. 386.

of these attacks even happened while he sat at home and watched television. Tr. 386. He further testified that he

could not remember a time when he left the house over the prior four years without having a panic attack. 19 Tr. 386.

Hoefling also testified that he had trouble attending the Alcoholics Anonymous meetings because of the people. Tr. 378. Hoefling testified that this problem had gotten worse. 379. Hoefling testified that he still suffered from depression and that he sometimes did not want to live anymore. Tr. 389. Tr.

He testified that he still had thoughts of suicide or not wanting to live once in a while, but that it had been better. Tr. 389. Hoefling testified that his bipolar disorder caused

him to have manic phases where he had very high and very low moments. Tr. 390. When he suffered these conditions, He

Hoefling testified that he could not work.

Tr. 390-391.

also stated that since he had been taking Geodon, those symptoms improved but were nevertheless still present at times. Tr. 392.

The Court is persuaded the ALJ correctly found that Hoefling was disabled at step 3; however, the ALJ's decision that Hoefling's substance use was a contributing factor

material to his disability is not supported by substantial evidence on the record as a whole. Substantial evidence

reveals that Hoefling's impairments were not affected by his 20

substance use to the extent that he would not have been disabled had he not used alcohol and drugs. evidence reveals that Hoefling's alcohol Substantial drug use

and

significantly decreased, if not ceased altogether, shortly before his second hospitalization in April of 2005. continued, however, to suffer agoraphobic,
3

He and

panic,

depressive symptoms over the next couple years while he remained sober, and this Court is persuaded that substantial evidence reveals that these symptoms and impairments left him totally disabled.
4

Therefore, substantial evidence reveals

that Hoefling would have been disabled even had he not abused drugs or alcohol in the past. III. CONCLUSION For the reasons stated herein, this Court is persuaded Indeed, Hoefling's drug and alcohol screens while hospitalized in April 2005 were negative. He also testified that he used marijuana only four times in the previous five years. Tr. 376. He further testified that he did not like alcohol and that it made him sick. Tr. 379. His agoraphobic symptoms appeared to be particularly severe around the time of the ALJ hearing. At the ALJ hearing, when Hoefling's representative asked the VE whether an individual who was also limited by agoraphobia and would not be capable of attending work more than five consecutive days, and who would then be absent from work, would be capable of competitive employment, the VE answered, "No." Tr. 408. 21
4 3

that substantial evidence in the record does not support the ALJ's finding that Hoefling was not disabled under the Act. Substantial evidence shows that Hoefling met his burden of proving he was disabled under the Act prior to his date last insured, and that there are no jobs in the national economy he could perform. This Court is further persuaded that there is

no need to remand to the Commissioner to take additional evidence. The record contains sufficient evidence to allow

the Court to render this decision. IT IS THEREFORE HEREBY ORDERED, pursuant to sentence four of 42 U.S.C. § 405(g), that the decision of the ALJ is reversed, and the Commissioner is directed to compute and award disability benefits to Hoefling with an onset date of February 14, 2005. A timely application for attorney fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"), must be filed within thirty (30) days of the entry of final judgment in this action. Thus, if this decision is not

appealed, and Hoefling's attorney wishes to apply for EAJA

22

fees, he must do so within 30 days of the entry of the final judgment in this case. IT IS SO ORDERED this 12th day of August, 2010. __________________________________ Donald E. O'Brien, Senior Judge United States District Court Northern District of Iowa

23