Wilson v. Social Security Administration, Commissioner of

Filing 23

MEMORANDUM AND ORDER: Commissioner's decision denying plaintiff Social Security Disability benefits is affirmed. 19 Motion to Remand is denied. Signed by District Judge Daniel D. Crabtree on 1/30/15. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LAMOUND WILSON,
Plaintiff,
v.
Case No. 13-cv-2439-DDC
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
____________________________________
MEMORANDUM AND ORDER
Pursuant to 42 U.S.C. § 405(g), plaintiff Lamound Wilson seeks judicial review of the
final decision of the Commissioner of the Social Security Administration (the “Commissioner”)
denying his application for benefits under Title II and Title XVI of the Social Security Act, as
amended. Plaintiff has filed a brief asking the Court to reverse or remand the Commissioner’s
decision. (Doc. 16) Plaintiff also filed a separate Motion to Remand (Doc. 19) because the
Commissioner awarded him benefits for a later disability period. The Commissioner has filed a
response brief (Doc. 22) addressing the arguments plaintiff raised in his initial brief and in his
Motion to Remand. This matter ripened for decision when plaintiff did not file a reply to the
Commissioner’s response brief within the 14-day time limit provided by D. Kan. Rule 6.1(d).
Having reviewed the administrative record and the parties’ briefs, the Court affirms the
Commissioner’s decision denying plaintiff benefits.
I.

Factual Background and Procedural History
In May 2010, plaintiff applied for disability insurance benefits (“SSD”) and supplemental

security income (“SSI”) under Title II and Title XVI of the Social Security Act, 18 U.S.C. §§

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401-434, 1381-1385. (R. 12) The Commissioner denied plaintiff’s claims initially and denied
them again upon reconsideration. (Id.) On July 27, 2012, following a hearing, the
Administrative Law Judge (“ALJ”) concluded that plaintiff was not disabled as the term is
defined in the Social Security Act. (R. 12-21) On August 14, 2013, the Appeals Council of the
Social Security Administration denied plaintiff’s request for review. (R. 2-4) Plaintiff has
exhausted his administrative remedies, and the ALJ’s decision stands as the final decision of the
Commissioner, subject to judicial review under 42 U.S.C. § 405(g).
Plaintiff was born in January 1959 and alleges that his period of disability began on
January 1, 2008. (R. 144, 48) In his Disability Report, plaintiff asserts that he is disabled
because of “arthritis, depression, [a] bad knee,” and a “bad hip.” (R. 184)
Plaintiff is a veteran and has received most of his medical care from doctors at VA
Medical Centers. (R. 243-301, 335-530) During past visits to doctors, he complained that he
struggled with left knee and ankle pain. (R. 390) He also complained of neck pain, lower-back
pain, and pain in his hands. (Id.) Plaintiff believes that his work history, which includes work at
a meat packing plant, has exacerbated his physical ailments. (R. 387) His physical problems
have worsened in recent years. (Id.) Treating physicians’ records reflect that plaintiff has a
history of lower-back and knee pain, spondylosis, degenerative changes, disc herniation in the
cervical and lumbar spine, and difficulties with his upper extremities. (R. 514) In 2011, doctors
diagnosed him with right cubital tunnel syndrome of the ulnar nerve and carpal-metacarpal
anthropathy in his right hand. (R. 334) Doctors also noted right thumb problems, and x-rays
showed some degenerative joint disease of the right thumb and a right shoulder impingement.
(R. 343-44)

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After reporting that his hand problems had worsened, plaintiff underwent surgery in June
2011 to repair the cubital tunnel entrapment doctors had diagnosed previously. (R. 480)
Plaintiff tolerated the procedure well and doctors expected his hand condition to improve. The
ALJ concluded that plaintiff’s physical deficits, though they had taken some toll on his ability to
work, did not preclude all gainful work. (R. 16) On appeal, plaintiff has not challenged the
ALJ’s conclusions about his physical impairments.
In addition to physical impairments, plaintiff also alleges mental impairments, which the
ALJ found to be the “core of this case.” (R. 16) Plaintiff concedes much of his mental
impairments exist because he abuses several substances, including alcohol, cannabis, and
cocaine. (R. 326) Plaintiff reports that he drinks 1-1.5 pints of alcohol daily and has consumed
alcohol at the same or greater levels for the last 25 years. (Id.) He also reports using marijuana
once or twice a week, and smoking and snorting crack cocaine. (Id.) Plaintiff last received
substance abuse treatment in 1989 and has had little success overcoming his substance abuse
problems. (R. 326)
Although plaintiff recognizes that many of his mental health issues are attributable drug
and alcohol abuse (“DAA”), he asserts that he suffers from disabling mental health problems
independent of DAA. Specifically, plaintiff alleges that he suffers from work preclusive
depression and cognitive deficits. (R. 16) The ALJ concluded that plaintiff, accounting for both
plaintiff’s DAA and non-DAA related mental impairments, had a work preclusive disability. (R.
18-19)
About one year after the ALJ issued the July 27, 2012 decision denying plaintiff benefits,
plaintiff filed a new application alleging a disability onset of September 23, 2013. The
Commissioner agreed. (Doc. 19 at 2) Although the Court lacks evidence about the precise basis

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for the Commissioner’s decision to award benefits, it seems the Commissioner concluded that
plaintiff’s mental and/or physical impairments prevented him from engaging in substantially
gainful employment, and that DAA was not a material factor contributing to his disabling
conditions. (Id.) Following the award of benefits for this post-September 2013 period of
disability, plaintiff filed a Motion to Remand (Doc. 19).
Plaintiff’s motion argues that the Commissioner’s favorable decision is inconsistent with
the first decision denying plaintiff benefits because the Commissioner reached a different
conclusion while “likely considering” the same evidence. (Id.) According to plaintiff, this
inconsistency satisfies 42 U.S.C. § 405(g)’s “good cause” standard for remanding a case to the
Commissioner for reconsideration.
II.

Legal Standards
A.

Standard of Review

Plaintiff’s request for review and Motion to Remand each invoke the Court’s power of
judicial review under 42 U.S.C. § 405(g). Section 405(g) grants federal courts authority to
conduct judicial review of final decisions of the Commissioner and “enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision . . . with
or without remanding the case for a rehearing.” Judicial review of the Commissioner’s denial of
benefits is limited to whether substantial evidence in the record supports the factual findings and
whether the Commissioner applied the correct legal standards. Cowan v. Astrue, 552 F.3d 1182,
1184-85 (10th Cir. 2008) (quoting Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)). “If
supported by substantial evidence, the Secretary’s findings are conclusive and must be affirmed.”
Sisco v. U.S. Dep’t of Health & Human Servs., 10 F.3d 739, 741 (10th Cir. 1993) (citing
Richardson v. Perales, 402 U.S. 389, 390 (1971).

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“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Lax, 489 F.3d at 1084. It must be “more than a scintilla,”
although it need not be a preponderance. Id. While courts “consider whether the ALJ followed
the specific rules of law that must be followed in weighing particular types of evidence in
disability cases,” they neither reweigh the evidence nor substitute their judgment for the
Commissioner’s. Id. (citation and internal quotation marks omitted). But they also do not accept
“the findings of the Commissioner” mechanically or affirm those findings “by isolating facts and
labeling them substantial evidence, as the court[s] must scrutinize the entire record in
determining whether the Commissioner’s conclusions are rational.” Alfrey v. Astrue, 904 F.
Supp. 2d 1165, 1167 (D. Kan. 2012). When determining whether substantial evidence supports
the Commissioner’s decision, courts “examine the record as a whole, including whatever in the
record fairly detracts from the weight of the Commissioner’s decision.” Id. “Evidence is not
substantial if it is overwhelmed by other evidence, particularly certain types of evidence (e.g.,
that offered by treating physicians) or if it really constitutes not evidence but mere conclusion.”
Lawton v. Barnhart, 121 F. App’x 364, 366 (10th Cir. 2005) (quoting Frey v. Bowen, 816 F.2d
508, 512 (10th Cir. 1987)).
Accordingly, the Court will review the ALJ’s decision denying plaintiff benefits to
determine whether it is “free from legal error and supported by substantial evidence.” Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
B.

Disability Determination

Claimants seeking Social Security disability benefits carry the burden to show they are
disabled. Wall, 561 F.3d at 1062 (citation omitted). In general, the Social Security Act defines
“disability” as the “inability to engage in any substantial gainful activity by reason of any

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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 Commissioner follows “a five-step sequential evaluation process to determine disability.” Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (discussing 20 C.F.R. § 404.1520 (governing claims for disability insurance benefits) and § 416.920 (governing claims for supplemental
security income)). As summarized by our Circuit, this familiar five-step process proceeds as
follows:
Step one requires the agency to determine whether a claimant is presently
engaged in substantial gainful activity. If not, the agency proceeds to consider, at
step two, whether a claimant has a medically severe impairment or impairments.
. . . At step three, the ALJ considers whether a claimant’s medically severe
impairments are equivalent to a condition listed in the appendix of the relevant
disability regulation. If a claimant’s impairments are not equivalent to a listed
impairment, the ALJ must consider, at step four, whether a claimant’s
impairments prevent [him or] her from performing [his or] her past relevant work.
Even if a claimant is so impaired, the agency considers, at step five, whether [he
or] she possesses the sufficient residual functional capability [RFC] to perform
other work in the national economy.
Wall, 561 F.3d at 1052 (citations and internal quotation marks omitted); accord 20 C.F.R. §
404.1520(b)-(g). The claimant has the “burden of proof on the first four steps,” but the burden
shifts to the Commissioner “at step five to show that the claimant retained the RFC to ‘perform
an alternative work activity and that this specific type of job exists in the national economy.’”
Smith v. Barnhart, 61 F. App’x 647, 648 (10th Cir. 2003) (quoting Williams v. Bowen, 844 F.2d
748, 751 (10th Cir. 1988)). This analysis terminates if the Commissioner determines at any point
that the claimant is or is not disabled. Casias v. Sec’y of Health & Human Servs., 933 F.2d 799,
801 (10th Cir. 1991).

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If a claimant’s disability involves drug and alcohol abuse (“DAA”), the ALJ must
conduct an additional analysis. The ALJ must consider first whether the claimant is under a
disability considering all of the claimant’s impairments, including DAA. 20 C.F.R. §§
404.1535(a), 416.935(a). But DAA may not serve as an independent basis for a disability
finding. 42 U.S.C. § 423(d)(2)(C) (“An individual shall not be considered to be disabled for
purposes of this subchapter if alcoholism or drug addiction would . . . be a contributing factor
material to the Commissioner’s determination that the individual is disabled.”). Thus, if the
Commissioner concludes the claimant’s impairments—including DAA—are disabling, the
Commissioner then must determine whether DAA is a “material factor” contributing to the
disability, i.e., whether the claimant’s impairments would disable him independent of the
limitations resulting from DAA. 20 C.F.R. §§ 404.1535(a), 416.935(a); see also Drapeau v.
Massanari, 255 F.3d 1211, 1215 (10th Cir. 2001).
III.

Issues for Review
Plaintiff asserts that the ALJ erred in two ways. First, he argues that no substantial

evidence supports the ALJ’s conclusion that DAA was a material factor contributing to
plaintiff’s disability. Second, he contends the Commissioner’s subsequent decision to award him
benefits establishes good cause to remand the case to the Commissioner. The Court considers
each argument, in turn, below.1

In his brief, plaintiff also asserts that: (1) “the ALJ violated the correct legal standard by
ignoring uncontroverted evidence favorable to [plaintiff] in reaching [her] decision” (Doc. 16 at 5); and
(2) the ALJ did not include all of plaintiff’s exertional and non-exertional impairments in her RFC
findings (Doc. 16 at 10). However, plaintiff does not specify what evidence the ALJ ignored, nor does he
otherwise develop these arguments beyond conclusory statements. The Court will not consider these two
arguments because plaintiff has failed to brief them adequately for review. Johnson v. Colvin, No. 131422-RDR, 2014 WL 4980437, at *6 (D. Kan. Oct. 6, 2014) (declining to address “plaintiff’s
undeveloped attack on the decision to deny benefits”) (citing Mays v. Colvin, 739 F.3d 569, 575-76 (10th
1

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A.

DAA as a Material Factor in the ALJ’s RFC Assessment

The ALJ initially found that the severity of plaintiff’s mental impairments, accounting for
DAA, precluded work. (R. 17) Nevertheless, the ALJ concluded that plaintiff “was not under a
‘disability’” as the Social Security Act defines the term because “if substance abuse was not a
condition, [plaintiff] would be capable of making a successful adjustment to work that exists in
significant numbers in the national economy.” (R. 20) In other words, the ALJ determined that
DAA contributed materially to plaintiff’s disability. (Id.) Plaintiff contends that the ALJ did not
rely on any medical evidence to reach this conclusion. Rather, plaintiff asserts, the ALJ relied on
her own lay opinion to determine that plaintiff could return to work absent DAA. According to
plaintiff, the medical evidence purportedly relied upon in the ALJ’s materiality assessment is
ambiguous at best, and the ALJ “concedes” that the examining physician, Dr. Schlosberg, could
not distinguish which mental impairments would persist absent DAA. (Doc. 16 at 15) Thus, the
Court must determine whether substantial evidence supports the ALJ’s conclusion that DAA was
a material factor contributing to plaintiff’s disability.
The Commissioner’s implementing regulations set forth the analysis an ALJ should
conduct in a case involving DAA. Salazar v. Barnhart, 468 F.3d. 615, 623-24 (10th Cir. 2006)
(citing 20 C.F.R. § 416.935(a), (b)). Subsection (b) of § 416.935 describes the process for
determining whether DAA is a material factor contributing to a claimant’s disability:
(1) The key factor we will examine in determining whether drug addiction or
alcoholism is a contributing factor material to the determination of
disability is whether we would still find you disabled if you stopped using
drugs or alcohol.

Cir. 2014)); see also Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (“We will consider
and discuss only those of [plaintiff’s] contentions that have been adequately briefed for our review.”).

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(2) In making this determination, we will evaluate which of your current
physical and mental limitations, upon which we based our current
disability determination, would remain if you stopped using drugs or
alcohol and then determine whether any or all of your remaining
limitations would be disabling.
(i) If we determine that your remaining limitations would not be
disabling, we will find that your drug addiction or alcoholism is a
contributing factor material to the determination of disability.
(ii) If we determine that your remaining limitations are disabling, you
are disabled independent of your drug addiction or alcoholism and
we will find that your drug addiction or alcoholism is not a
contributing factor material to the determination of disability.
20 C.F.R. § 416.935(b).
The Tenth Circuit elaborated in Salazar v. Barnhart, focusing on an emergency teletype
the Commissioner issued to provide guidance for cases where a claimant has alleged mental
impairments in addition to DAA.2 468 F.3d. at 623. The Tenth Circuit observed that the
teletype “stresses the need for careful examination of periods of abstinence and also directs that
if the effects of a claimant’s mental impairments cannot be separated from the effects of
substance abuse, the DAA is not a contributing factor material to the disability determination.”
Id. (emphasis in original). The Tenth Circuit noted that the opinion of a medical or
psychological consultant can support a materiality finding, but only if the consultant can

2

The Commissioner urges the Court to apply the procedure set forth in Social Security Ruling
13-2p (“SSR 13-2p”), which superseded the instructions in the Commissioner’s teletype for deciding
DAA materiality. SSR 13-2p, Titles II and XVI: Evaluating Cases Involving Drug Addiction and
Alcoholism (DAA), 78 Fed. Reg. 11939-01 (February 12, 2013). Although SSR 13-2p is generally
consistent with Commissioner’s emergency teletype, it did not take effect until March 22, 2013. Id.; see
also Herrera v. Colvin, No. 2:13-CV-128 BCW, 2014 WL 806162, at *4 (D. Utah Feb. 28, 2014). The
Court will apply only those regulations in effect when the ALJ issued her decision on July 27, 2012.
Newbold v. Colvin, 718 F.3d 1257, 1261 n.2 (10th Cir. 2013) (applying only those Social Security
regulations “‘in effect at the time of the ALJ’s decision’”) (quoting Chapo v. Astrue, 682 F.3d 1285, 1291
n.5 (10th Cir.2012)). In this case, the Court applies the Commissioner’s emergency teletype, as construed
by the Tenth Circuit in Salazar.

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disentangle the limitations caused by DAA from those caused by a claimant’s other mental
impairments. Id.
Under Salazar, the best evidence about DAA materiality is evidence showing the effect
of prolonged abstinence on plaintiff’s impairments. 468 F.3d. at 623. But where the record
contains no evidence about a claimant’s mental functioning absent drug and alcohol use, the
Tenth Circuit requires a specific medical or psychological “report, opinion, or projection about
the claimant’s limitations if [he] stopped using drugs or alcohol.” Id. at 624. Under this rule, the
ALJ “must cite medical evidence projecting what limitations would remain if [p]laintiff stopped
drug or alcohol abuse.” Smotherman v. Astrue, No. CIV-11-311-HE, 2012 WL 2256762, at *4
(W.D. Okla. Apr. 30, 2012) (citing Salazar, 468 F.3d at 623-624). The Tenth Circuit formulated
this requirement from a portion of the teletype that instructs a finding of nonmateriality if a
medical or psychological consultant “cannot project what limitations would remain if the
individuals stopped using drugs/alcohol.” Id. at 623 (emphasis added). And while the Court
recognizes other Circuit courts have questioned the Tenth Circuit’s interpretation of this portion
of the teletype, see Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 126 n.3 (2d Cir. 2012)
(criticizing the Tenth Circuit’s interpretation of the teletype for equating cases lacking predictive
expert opinions with cases where evidence does not support a DAA materiality finding
generally), our Court must follow the Tenth Circuit’s formulation.
The Commissioner acknowledges that “no doctor affirmatively opined that [p]laintiff
could work absent [DAA],” but argues that “such evidence is not required in order for an ALJ to
find that drug and alcohol abuse is a material factor.” (Doc. 22 at 7) But as the Court has
explained, the Tenth Circuit’s formulation comes close to requiring that a medical expert
affirmatively opine that DAA materially contributes to a claimant’s disability. Cage, 692 F.3d at

10

126 (rejecting plaintiff’s reliance on Salazar because the Tenth Circuit appears to be the lone
circuit to adopt the view that “an ALJ cannot find that drug or alcohol abuse is a contributing
factor where there is no medical opinion addressing the issue.”).
Significantly, Salazar’s rule does not permit the Court to inquire whether substantial
evidence supports the ALJ’s materiality finding notwithstanding the absence of a medical
opinion predicting plaintiff’s impairments absent DAA. This aspect of Salazar’s holding
confines our Court’s capacity to uphold an ALJ’s materiality finding on appeal. See, e.g.,
Simpson v. Astrue, No. CIV-11-565-M, 2011 WL 7006100, at *3 (W.D. Okla. Dec. 21, 2011)
(applying Salazar and reversing ALJ’s materiality finding because there was no “opinion by any
medical source as to [p]laintiff’s remaining limitations” absent DAA); Elliott v. Astrue, No. 07CV-01922-LTB, 2008 WL 2783486, at *10 (D. Colo. July 16, 2008) (reversing ALJ’s
materiality finding where there was no medical opinion addressing “the extent to which
[p]laintiff’s substance dependence influences her ability to perform work-related mental tasks”);
Upton v. Astrue, No. CIV-10-538-W, 2011 WL 1212760, at *8 (W.D. Okla. Mar. 2, 2011)
(reversing and remanding because AJL’s analysis did not comply with Salazar).
Moreover, there is some uncertainty whether the Commissioner or the claimant bears
burden of proving (or disproving) materiality. See Caswell v. Colvin, No. 13-CV-552-JD, 2014
WL 4749456, at *9 (D.N.H. Sept. 24, 2014) (“[The Tenth] Circuit has taken a different route in
deciding cases involving alcoholism or substance abuse, making it unclear where that circuit
would allocate the burden.”); but see SSR 13-2p (clarifying that plaintiff “continues to have the
burden of proving disability throughout the DAA materiality analysis”). Regardless of where the
burden rested before SSR 13-2p, the Circuit has interpreted the teletype to impose an exacting
standard for kind of evidence that can support a materiality finding. Nevertheless, the Court

11

concludes that ALJ reached her decision denying plaintiff benefits from evidence meeting
Salazar’s heightened standard.
Here, the ALJ was unable to examine the “most useful evidence” of DAA materiality—
the effects of periods of abstinence on plaintiff’s impairments—because the record presented no
periods of abstinence. Salazar, 468 F.3d. at 624. Lacking this evidence, the ALJ had to
examine, instead, treatment notes and consultative opinions to conclude whether DAA had
contributed materially to plaintiff’s disability determination. Dr. Schlosberg, who conducted a
consultative examination, concluded that it was difficult to disentangle the mental impairments
caused by plaintiff’s substance abuse and those impairments resulting from other conditions:
It is difficult to determine the impact of the [emotional] symptoms separate from
those of substance abuse. Specific cognitive deficits included mild impairment
noted in working memory and concentration. Although possible impairment was
indicated on the Shipley-2, it is difficult to determine the impact of substance use
on this measure. Additional testing would be helpful following a period of
abstinence from all substances. Overall, it is difficult to determine the impact of a
mood disturbance or potential cognitive impairment due to the claimant’s
substance abuse.
(R. 310). Dr. Scholsberg’s report also diagnosed plaintiff with polysubstance dependence and
ruled out major depressive disorder. (Id.) Dr. Wilkinson, who performed a psychiatric review,
agreed with Dr. Schlosberg’s diagnosis. But Dr. Wilkinson also expressed skepticism about Dr.
Schlosberg’s conclusion that it was difficult to separate the impairments caused by depression
from those caused by DAA.
Dr. Schlosberg states that it was difficult to assess the overall impact of mood and
potential cognitive impairment due to [claimant’s] substance abuse. Added that
[claimant] could interact appropriately with others. Dr. Scholsberg’s concern that
psychological factors might be clouded by substance abuse is noted, however the
objective findings in his report do not raise the [claimant’s] dysphoria to the level
of a clinical diagnosis. The MDI of Polysubstance Dependence is given
considerable weight. [Claimant] may struggle with depression, but the extent of
the effects on functioning are not credible. His self-report of depressive
[symptoms] far exceed[] the objective findings and even his own report to
medical treatment sources. His report of soiling himself in bed is more consistent
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with MDI of Polysubstance Dependence than any objective evidence in the MER
regarding depression. [Claimant] declines referrals and apparently does not
intend to address addictive behaviors.
(R. 326) In May 2011, Dr. Snyder reviewed the records and confirmed Dr. Wilkinson’s
assessment. (R. 329-30) Notably, Dr. Snyder also determined that plaintiff exhibited no strong
symptoms of depression and arrived “at a diagnosis of polysubstance dependences and rule[d]
out major depression.” (R. 329)
The ALJ considered Dr. Shlosberg’s opinion that certain aspects of plaintiff’s cognitive
limitations were difficult to isolate from DAA. (R. 16) However, despite some difficulty sorting
out the causes of plaintiff’s cognitive impairments, Dr. Schlosberg could rule out major
depressive disorder as the cause of plaintiff’s mental impairments. (R. 310) While
acknowledging Dr. Shlosberg’s opinion, the ALJ nevertheless gave “significant weight to the
conclusions of Dr. Wilkinson” because Dr. Wilkinson conducted a thorough evaluation,
supported her conclusions with clinical findings and medical evidence, and because a second
consultant, Dr. Snyder, reviewed and confirmed her conclusions. (R. 17); see also 20 C.F.R. §
404.1527(c)(3)-(4) (permitting an ALJ to give greater weight to opinions supported by medical
evidence and consistent with the record as a whole).
The Court concludes that the record substantially justifies the ALJ’s decision to accredit
Dr. Wilkinson and Dr. Snyder’s opinions because treating physician notes support their
conclusions. The record establishes that plaintiff, for the most part, has neither sought nor
received mental health treatment. The lone exception is that doctors at the VA hospital
prescribed plaintiff Buproprion, a depression medication, but he discontinued the medication
because he did not know why doctors had prescribed it for him. (R. 326). Also, plaintiff did not
mention the depression medication in the more recent treatment records (Id.) Moreover,

13

treatment notes from the VA hospital indicate that plaintiff did not need psychiatric treatment,
but that he did need substance abuse treatment. (R. 433)
Contrary to plaintiff’s assertion, the ALJ did not rely on her own “lay” opinion to
conclude that DAA was a material factor contributing to plaintiff’s disability. Rather, the ALJ
gave considerable weight to the opinion of a psychiatric consultant for good reason because it is
consistent with the medical record. Additionally, the Court finds that Dr. Wilkinson’s opinion
satisfies the Tenth Circuit’s formulation for substantial evidence in DAA materiality cases. Dr.
Wilkinson, a psychological expert, opined that plaintiff’s alleged limitations resulting from
depression were not credible because they exceeded objective findings and even his own reports
to treating physicians. (R. 326) She concluded that plaintiff’s depression did not satisfy the
level of severity required to meet a listing level condition because “it did not rise to the level of a
clinical diagnosis.” (R. 322, 326). In sum, except for DAA, plaintiff does not have a severe and
medically determinable impairment. Although Dr. Wilkinson’s report does not state her
conclusion in the affirmative and predictive terms favored by Salazar, the substance of her
conclusion is the same: Absent DAA, plaintiff would have not have a severe and medically
determinable impairment and, hence, would not qualify as disabled under the Act. 20 C.F.R. §
404.1520 (“If you do not have a severe medically determinable physical or mental impairment
. . . we will find that you are not disabled.”).
Thus, Dr. Wilkinson’s report constitutes a “report . . . [about plaintiff’s] remaining
limitations” absent DAA and, therefore, may serve as evidence of DAA materiality under
Salazar. See 468 F.3d at 624. And because the ALJ was otherwise justified in giving significant
weight to Dr. Wilkinson’s opinion, the Court concludes substantial evidence supports the ALJ’s

14

finding that plaintiff would not be disabled but for DAA. The Court, therefore, affirms the
ALJ’s materiality finding.
B.

Plaintiff’s Subsequent Benefits Award Does Not Warrant Remand

In plaintiff’s Motion to Remand (Doc. 19), plaintiff claims that he was awarded disability
benefits based on an application filed on September 23, 2013. Plaintiff asserts that this decision
“likely was based” on the same evidence that the ALJ had before her when she denied plaintiff’s
earlier application and, therefore, conflicts with the ALJ’s decision. Plaintiff thus contends that
the Court must remand this case so that the Commissioner can reconcile these “conflicting”
decisions. (Id. at 1)
Courts have held that a subsequent benefits award sometimes can suffice as a reason to
remand a Social Security appeal for further development of the record. Greene v. Astrue, No.
10-4087-JTM, 2011 WL 2671313, at *4 (D. Kan. July 8, 2011) (“[W]ith an onset day one day
after [the previous] denial, the proximity of the Commissioner’s subsequent favorable decision is
likely to be of a significant and substantial character in relation to the earlier claim, and thus,
material.”). However, a “subsequent award of benefits is not independently sufficient to warrant
remand of an earlier and denied application for disability benefits.” Roell v. Colvin, No. 13-CV0423-CVE-FHM, 2014 WL 4385848, at *8 (N.D. Okla. Sept. 4, 2014) (citing Allen v. Astrue,
561 F.3d 646 (6th Cir.2009)).
In this case, the ALJ found that plaintiff was not disabled between his alleged onset date
of January 1, 2008, through the date of the decision on July 27, 2012. (R. 20) The
Commissioner determined later that plaintiff was disabled beginning on September 23, 2013—
more than a year after the ALJ issued her decision denying plaintiff benefits. The Court’s task in
this case “is to review the decision of the ALJ as to whether plaintiff was entitled to benefits

15

during a period of time which was prior to the ALJ’s decision.” Wait v. Barnhart, No. 06-4024RDR, 2007 WL 1150418, at *7 (D. Kan. Jan. 10, 2007) (citing Wilson v. Apfel, 179 F.3d 1276,
1279 (11th Cir.1999)). Our Court has held that “[a] subsequent award of benefits indicating that
plaintiff was entitled to SSI benefits more than a month after the ALJ’s decision is not relevant”
to the Court’s review. Wait, 2007 WL 1150418 at *7. Here, no overlap between the two alleged
disability periods exists, and the subsequent favorable decision did not award benefits for a
disability following closely the period for which the ALJ denied benefits. Consequently, the
Court concludes that plaintiff’s subsequent award of benefits, standing alone, does not warrant
remand.
Moreover, “[i]n the case of a subsequent favorable determination, a sentence six remand
is appropriate only if the plaintiff can show new substantive evidence that might have changed
the outcome of the prior proceeding.” Allen, 561 F.3d at 654 (emphasis added). In this context,
plaintiff must specify the evidence supporting the subsequent award of benefits because “[t]he
new determination might be based on a change in the claimant’s condition that occurred after the
initial determination.” Id. Here, plaintiff has presented no evidence that the Commissioner
based the September 2013 award on “the same, or nearly the same, evidence” that was before the
ALJ. Jackson v. Astrue, 402 F. App’x 717, 718 (3d Cir. 2010) (“Standing alone, the fact that the
Commissioner subsequently found claimant to be disabled does not warrant remand or reversal
in the absence of new and material evidence, which claimant here has failed to provide.”). Based
on the current argument and evidence before it, the Court cannot even discern the type of
disability that supported the Commissioner’s award of benefits, let alone what evidence
supported that award. Plaintiff’s bare speculation that the subsequent award was “more likely

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than not” based on the same evidence that the ALJ considered more than a year earlier is
insufficient to carry his burden. Accordingly, the Court denies plaintiff’s Motion to Remand.
IV.

Conclusion
Based on this analysis, the Court finds that substantial evidence supports the ALJ’s

conclusion that DAA was a material factor contributing to plaintiff’s disability determination.
The Court finds also that plaintiff’s subsequent benefit award does not warrant remand in the
absence of new and material evidence, and plaintiff has failed to identify any. Accordingly, the
Court affirms the ALJ’s decision denying plaintiff SSD and SSI benefits and declines to remand
this case to the Commissioner.
IT IS THEREFORE ORDERED BY THE COURT THAT the Commissioner’s
decision denying plaintiff Social Security Disability benefits is affirmed.
IT IS FURTHER ORDERED BY THE COURT THAT Plaintiff’s Motion to Remand
(Doc. 19) is denied.
IT IS SO ORDERED.
Dated this 30th day of January, 2015, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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