Douglas v. Social Security

Filing 18

RULING: Under sentence four of 42 USC §405(g), the final determination of the Commissioner of Social Security Michael J. Astrue, that plaintiff Adrian D. Douglas is not disabled and denying his applications for disability and supplemental security income benefits, is affirmed. A judgment shall be entered dismissing this action. Signed by Magistrate Judge Stephen C. Riedlinger on 1/29/2013. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ADRIAN D. DOUGLAS
CIVIL ACTION
VERSUS
NUMBER 11-126-SCR
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION
RULING ON SOCIAL SECURITY APPEAL
Plaintiff Adrian D. Douglas brought this action pursuant to 42
U.S.C. § 405(g) for judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying his claim
for disability and supplemental security income (“SSI”) benefits.
For the reasons which follow the Commissioner’s decision is
affirmed.
Standard of Review
Under 42 U.S.C. § 405(g), judicial review of a final decision
of the Commissioner denying disability benefits is limited to two
inquiries:

(1) whether substantial evidence exists in the record

as a whole to support the Commissioner’s findings, and (2) whether
the

Commissioner’s

standards.1
1

final

decision

applies

the

relevant

legal

Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001).

If

It is well-established that in cases brought under § 405(g)
evidence
outside
the
administrative
record
is
generally
inadmissible, and on judicial review the court cannot consider any
evidence that is not already a part of the administrative record.
Lovett v. Schweiker, 667 F.2d 1, 2 (5th Cir. 1981); Flores v.
(continued...)

substantial evidence supports the Commissioner’s findings, they are
conclusive and must be affirmed.

Richardson v. Perales, 402 U.S.

389, 91 S.Ct. 1420, 1422 (1971); Martinez v. Chater, 64 F.3d 172,
173 (5th Cir. 1995).

Substantial evidence is that which is

relevant and sufficient for a reasonable mind to accept as adequate
to support a conclusion.
than a preponderance.

It is more than a mere scintilla and less

Greenspan v. Shalala, 38 F.3d 232, 236 (5th

Cir. 1994); Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000).

A

finding of no substantial evidence is appropriate only if no
credible
decision.

evidentiary

choices

or

medical

findings

support

the

Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001).

In

applying the substantial evidence standard the court must review
the entire record as whole, but may not reweigh the evidence, try
the issues de novo, or substitute its judgment for that of the
Commissioner,

even

if

Commissioner’s decision.

the

evidence

weighs

against

the

Newton v. Apfel, 209 F.3d 448, 452 (5th

Cir. 2000). Conflicts in the evidence are for the Commissioner and
not the court to resolve.

Masterson v. Barnhart, 309 F.3d 267, 272

(5th Cir. 2002).
If the Commissioner fails to apply the correct legal standards
or provide a reviewing court with a sufficient basis to determine
that the correct legal principles were followed, it is grounds for

1

(...continued)
Heckler, 755 F.2d 401, 403 (5th Cir. 1985).
2

reversal.

Western v. Harris, 633 F.2d 1204, 1206 (5th Cir. 1981);

Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
A claimant has the burden of proving that he or she suffers
from a disability, which is defined as a medically determinable
physical or mental impairment lasting at least twelve months that
prevents

the

activity.

claimant

from

engaging

in

substantial

20 C.F.R. § 404.1505 and § 416.905.

gainful

The regulations

require the ALJ to apply a five step sequential evaluation to each
claim for disability benefits. 20 C.F.R. § 404.1520 and § 416.920.
In the five step sequence used to evaluate claims, the Commissioner
must determine whether: (1) the claimant is currently engaged in
substantial

gainful

activity,

(2)

the

claimant

has

a

severe

impairment(s), (3) the impairment(s) meets or equals the severity
of a listed impairment in Appendix 1 of the regulations, (4) the
impairment(s) prevents the claimant from performing past relevant
work, and (5) the impairment(s) prevents the claimant from doing
any other work.

Masterson, 309 F.3d at 271.

The burden of proving disability rests on the claimant through
the first four steps.

If the claimant shows at step four that he

is no longer capable of performing his past relevant work, the
burden shifts to the Commissioner to show that the claimant is able
to engage in some type of alternative work that exists in the
national economy.

Myers, supra.

If the Commissioner meets this

burden the claimant must then show that he cannot in fact perform

3

that work.

Boyd, 239 F.3d at 705.

In 1996 Congress amended the Social Security laws related to
alcoholism

and

drug

addiction.

amendments was March 29, 1996.

The

effective

date

of

the

Brown v. Apfel, 192 F.3d 492 (5th

Cir. 1999); Adams v. Apfel, 149 F.3d 844, 846 (8th Cir. 1998).
Under the legislation and implementing regulations, alcohol or drug
addiction might preclude a finding of disability.

42 U.S.C. §§

423(d)(2)(c) and 1382c(a)(3)(J); 20 C.F.R. §§ 404.1535(a) and
416.935(a); Brown, 149 F.3d at 497-499.

The regulations mandate

consideration of whether these addictions are contributing factors
material

to

the

determination

of

disability

only

after

the

administrative law judge (“ALJ”) finds the claimant is disabled.
Id.

The key factor is whether the claimant would still be found

disabled if he stopped using drugs or alcohol.2

The claimant has

the burden of proving that drug or alcohol addiction is not a
contributing factor material to his disability. Brown, 149 F.3d at
498; Wheat v. Barnhart, 318 F.Supp.2d 358, 362 (M.D. La. 2004).3

2

Brown, 192 F.3d at 499; 20 C.F.R. §§ 404.1535(b)(1)-(2)(i)
& (ii) and 416.935(b)(1)-(2)(i) & (ii).
3

The Social Security Administration has also issued internal
guidelines on the process for evaluating a claimant’s drug or
alcohol abuse:
(1) does the claimant meet the disability standard? (2)
is there medical evidence of drug addiction or
alcoholism? and (3) is the claimant's substance use or
addiction
disorder
“material”
to
the
disability
determination? Consistent with the Brown decision and
the federal regulations, this three-step evaluation
(continued...)
4

Background
Plaintiff had a high school education and at the time he filed
this appeal was 36 years of age.

AR pp. 54, 83, 790, 829-30.

Plaintiff’s job history from 1992 to 2001 consisted of work for
approximately 14 different employers performing jobs such as fork
lift operator, cook, waiter, stocker, lawn care worker and laborer.
AR pp. 78, 84, 86, 93.

The subject of this appeal is the

plaintiff’s applications for disability and SSI benefits filed in
January and March of 2003.

Plaintiff claimed that he has been

disabled and unable to engage in substantial gainful activity since
January 2001, and that his disability is a result of severe mental
problems. AR pp. 54-56, 77, 790-93, 836-37.
Plaintiff’s applications were denied. Plaintiff has exhausted
his administrative remedies.

The Commissioner issued two final

decisions denying the plaintiff’s claims for disability and SSI
benefits, and the plaintiff appealed both decisions.

Plaintiff’s

appeal of the first ALJ decision resulted in a reversal and remand

3

(...continued)
process provides that a finding of disability must first
be reached. If there is medical evidence in the record of
drug or alcohol use, the ALJ must then determine if the
use contributes to the disability. If it does contribute,
the plaintiff is not entitled to these benefits, even
though he is otherwise disabled. If drug or alcohol use
is not contributory, then the plaintiff remains entitled
to these benefits because he is otherwise disabled.
Oettinger v. Barnhart, 2002 WL 31422308 (W.D. Tex., Sept. 4,2002).
5

to the Commissioner for reevaluation of his claims and issuance of
a new decision.

After the proceedings on remand, he ALJ and

Appeals Council issued another unfavorable decision. Plaintiff now
appeals this final decision.

The background of each appeal is as

follows.
Background and Outcome of First Appeal
The first ALJ hearing was held on January 6, 2005.
827-49.
2005.

AR pp.

After the hearing the ALJ issued a decision on April 7,
AR pp. 14-28.

The ALJ concluded at step two that the

plaintiff suffered from a severe combination of impairments:4 “The
claimant has bipolar disorder with psychotic features: dependent
personality disorder; anti-social personality disorder, a history
of drug and alcohol abuse, a history of noncompliance with his
psychotropic medications, and headaches and dizziness.”

AR p. 26.

At step three the ALJ determined that the plaintiff’s impairments
met the criteria of Listing 12.09B.
This listing was satisfied by reference to Listing 12.04 which
covers affective disorders that are characterized by a disturbance
of mood, accompanied by a full or partial manic or depressive
syndrome.5

4

The ALJ stated that of the eight characteristics the

Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985).

5

Listing 12.09 is not analyzed separately from Listings 12.04
and 12.08 because it is structured as a reference listing. Unlike
other sections of disorders in the list of impairments, § 12.09
(continued...)
6

plaintiff had at least four, including pressures of speech, flight
of ideas, inflated self-esteem, involvement in activities that have
a

high

probability

of

painful

consequences

which

are

not

recognized, and hallucinations, delusions or paranoid thinking.6
Under Listing 12.04B. the plaintiff also had the required listing
level severity in two areas - marked difficulties in maintaining
social functioning and in maintaining concentration, persistence or
pace.

AR p. 21.
Because the plaintiff was disabled under the Listings at step

three and there was medical evidence of drug addiction,7 the ALJ
was required to determine whether the plaintiff’s substance abuse
was material to the disability determination.

The ALJ addressed

the issue and concluded that the plaintiff’s drug abuse was a
material factor contributing to the finding that he was disabled at
the third step.

AR p. 22.

Therefore, the plaintiff was not

entitled to benefits, that is, the plaintiff would not be disabled

5

(...continued)
does not have its own set of requirements. Pettit v. Apfel, 218
F.3d 901, 902 (8th Cir. 2000). It only serves to indicate which of
the other listed mental or physical impairments must be used to
evaluate the behavioral or physical changes resulting from regular
use of addictive substances. 20 C.F.R. Pt. 404, Subpt. P, App. 1,
Pt. A, § 12.00A. Introduction. Mendez v. Barnhart, 2007 WL 186800,
*8 (S.D. N.Y. Jan. 3, 2007).
6

Listing 12.04A.2.

7

The administrative record is replete with evidence of the
plaintiff’s alcohol and drug abuse. It is unnecessary to summarize
the evidence in this ruling.
7

under the Listings if he stopped his drug and alcohol abuse.
Based on this finding, the ALJ proceeded to make the findings
necessary

to

evaluate

the

plaintiff’s

impairments

remaining steps of the disability analysis.

under

the

The ALJ evaluated the

plaintiff’s residual functional capacity in order to assess whether
the plaintiff was able to do any of his past relevant work, or make
an adjustment to other work that exists in the national economy.
AR pp. 25, 27.
The ALJ reviewed the plaintiff’s past employment history and
at step four concluded that the plaintiff’s residual functional
capacity prevented him from performing any of his past relevant
work.

At the final step of the disability analysis the ALJ

concluded that:
Although the claimant’s exertional and non-exertional
limitations do not allow him to perform the full range of
sedentary work, using Medical-Vocational Rule 201.28 as
a framework for decision-making, the undersigned
Administrative Law Judge finds that but for his continued
drug and alcohol abuse, there are a significant number of
jobs in the national economy that the claimant could
perform.
AR p. 27, finding number 15.
The ALJ denied the plaintiff’s claim for disability and SSI
benefits.
Council.

Plaintiff appealed the ALJ’s decision to the Appeals
The Appeals Council denied the plaintiff’s request for

review on January 18, 2006.

AR pp. 5-10.

8

Plaintiff filed a

petition for judicial review in this court.8

Ultimately the

district judge issued a ruling and judgment approving a report and
recommendation that resulted in a reversal and remand to the
Commissioner.

The Commissioner’s decision was reversed because of

errors at the fifth step.

The ALJ failed to obtain needed

vocational evidence and also failed to consider the plaintiff’s
ability to do other work in light of the principles of Singletary
v. Bowen.9
Background of Second Appeal
Based on the court’s order of remand, the Appeals Council
issued a notice/order sending the case to an ALJ to conduct further
proceedings

consistent

with

the

court’s

order.10

Another

administrative hearing was held on November 17, 2008 and additional
evidence

was

admitted

into

the

record.11

This

evidence

and

testimony from the administrative hearing showed that the plaintiff
was incarcerated from June 2, 2006 to April 18, 2008 for a parole
violation.

AR pp. 943-46, 948, 996-97.

Records associated with

this period of incarceration indicated that the plaintiff received

8

Civil Action No. 06-210-JJB-SCR; AR pp. 880-905 (copies of
the report and recommendation and district court ruling included in
the administrative record).
9

798 F.2d 818, 822 (5th Cir. 1986); Leidler v. Sullivan, 885
F.2d 291, 292-93 (5th Cir. 1989).
10

The case was remanded to a different ALJ.

11

AR pp. 971-1018; 935-61.
9

mental health treatment during this time and was taking prescribed
medication.12 AR pp. 935-46, 987. According to the progress notes,
the plaintiff consistently denied having any hallucinations, and
there were no reported problems with his mood.

Plaintiff stated

that he was looking forward to getting discharged, wanted to get a
job and planned to stay with his father.

AR p. 940.

In the time period between the plaintiff’s discharge from
prison on April 18, 2008 and the ALJ hearing held on November 17,
2008, the plaintiff underwent a consultative examination by a
psychologist.13
after

his

A letter and the hearing testimony showed that

release

from

prison

the

plaintiff

was

treatment/medication from the mental health center.
984-85.14

receiving

AR pp. 959,

Another letter from a physician’s clinic dated August 4,

2008 showed that the plaintiff was a patient at the clinic.

The

physician, Dr. Chaillie P. Daniel, concluded from one examination
that “[i]n my opinion Mr. Douglas is not competent to handle his
own financial matters.”

AR 958.

Plaintiff also reported during

this time period that he had high blood pressure and sleep apnea,
and was diagnosed with diabetes in May 2008.

AR pp. 948, 980, 986.

12

Plaintiff’s medications were Haldol and Benadryl.

13

AR pp. 947-51.

AR p.

935.

14

The letter merely contained a conclusory statement that the
plaintiff was a client at the clinic starting on April 22, 2008,
and that “[h]e is currently being stabilized on medication and is
unable to work.” AR p. 961.
10

At the hearing the plaintiff testified that his weight was 320
pounds.
At

AR p. 982.
the

hearing

the

ALJ

also

took

testimony

from

the

plaintiff’s father, vocational expert Thomas Mungall, III, and
medical expert, Dr. Thomas C. Fain, a clinical forensic and medical
psychologist.
2009.

The ALJ issued an unfavorable decision on June 12,

AR pp. 866-77.

At step two of the disability analysis the

ALJ found that the plaintiff had a severe combination of mental
impairments - psychosis, not otherwise specified, bipolar disorder
associated with substance abuse, and a history of alcohol and
substance dependence.

AR p. 869.

At the third step the ALJ again

concluded that the plaintiff’s impairments met the criteria of
Listing 12.09B by reference to Listing 12.04, but then found that
if the plaintiff stopped the substance abuse his impairments would
not meet or medically equal a listed impairment.

AR pp. 870-71.

Furthermore, if the plaintiff stopped abusing drugs and alcohol, he
could perform all the exertional requirements of work, but would
still have nonexertional limitations as a result of his severe
mental impairments.

AR p. 872.

Given his residual functional capacity, and the plaintiff’s
age and educational level, the ALJ relied on the testimony of the
vocational expert at the fifth step.
all

of

these

factors,

there

were

Mungall testified that given
several

jobs

existing

in

significant numbers in the national and local economy that the

11

plaintiff would be able to do - dishwasher, cleaner, grounds
maintenance worker and food preparation worker. AR p. 876. The ALJ
concluded his decision by stating:
13. Because the claimant would not be disabled if he
stopped the substance use (20 CFR404.1520(g) and
416.920(g)), the claimant’s substance use disorders is a
contributing factor material to the determination of
disability (20 CFR 404.1535 and 416.935).
Thus, the
claimant has not been disabled within the meaning of the
Social Security Act at any time from the alleged onset
date through the date of this decision.
AR p. 876.
After

the

ALJ’s

decision

the

Appeals

Council

assumed

jurisdiction because the ALJ did not address Singletary v. Bowen.
The

Appeals

Council

considered

the

Singletary

decision,

but

concluded as the ALJ did that substance abuse was a contributing
factor material to the plaintiff’s disability.15
without

substance

abuse,

and

given

the

Consequently,

plaintiff’s

residual

functional capacity, age and education, he could perform other work
as identified by the vocational expert. This resulted in a finding
that the plaintiff was not disabled at the fifth step.

AR pp. 854-

55.
Analysis
After the Appeals Council issued its decision on January 8,
2011, the plaintiff filed this petition for judicial review.

15

Other than addressing Singletary, the Appeals Council
adopted the ALJ’s remaining findings and conclusions. AR pp. 85356.
12

Plaintiff raised the following errors: (1)
Singletary

analysis

was

inadequate

and

the Appeals Council’s
the

finding

was

not

supported by substantial evidence; (2) the vocational evidence did
not support the finding that the plaintiff could do other work in
the national economy because the hypothetical presented to the
vocational

expert

did

not

adequately

reflect

the

plaintiff’s

impairments; (3) the ALJ failed to consider the impact of obesity
on the plaintiff’s ability to work; and, (4) the finding that the
plaintiff’s drug and alcohol abuse was a contributing factor
material to his disability was not based on substantial evidence.
Careful review of the administrative record as a whole demonstrates
that the claims of reversible error urged by the plaintiff are
without merit, and that substantial evidence supports the final
decision of the Commissioner.
1.

The ALJ properly considered the impact of obesity
on the plaintiff’s ability to work.

Plaintiff pointed to the evidence of his height and weight
that he provided at the hearing and the Social Security Ruling
which provides guidance on considering obesity.16

Plaintiff argued

that given his weight and height he is considered extremely obese,
and the ALJ failed to assess the effects of this condition on his

16

Plaintiff testified that his height was 5 feet 7 inches and
he weighed 320 pounds. AR p. 982. Plaintiff asserted that this
gives him a BMI of 50 and places him in the category of “extremely
obese.”
Record document number 13, Memorandum in Support of
Appeal, p. 10.
13

ability to work and sustain work-related activities.17
Contrary to the plaintiff’s argument, the ALJ specifically
addressed the obesity impairment, but found that it was not severe
under the correct legal standard - Stone v. Heckler.18 Furthermore,
this finding was supported by substantial evidence.

Although the

plaintiff had an obesity impairment, the record did not contain
medical or other objective findings which showed the impairment
caused any limitations of function such as those described in SSR
02-1p.19

Nor did the plaintiff testify that the obesity caused any

17

Effective October 25, 1999, obesity was deleted as a listed
impairment. Weary v. Astrue, 288 Fed.Appx. 961 (5th Cir. 2008);
Wooten v. Apfel, 108 F.Supp.2d 921, 924 (E.D.Tenn. 2000); Allen v.
Apfel, 2001 WL 253120 (E.D.La., Mar. 14, 2001).
However, the
Social Security regulations require that obesity and its effects be
considered in determining whether a claimant meets the listings
related to the musculoskeletal, respiratory and cardiovascular
systems, and considered in combination with other impairments
throughout the sequential disability analysis.
See, Listing
1.00.Q.; Listing 3.00.I.; Listing 4.00.F; SSR 02-01p, Evaluation of
Obesity, 2000 WL 628049 (S.S.A. Sept. 12, 2002).
18

752 F.2d 1099 (5th Cir. 1985). Evidence of the existence
of an impairment does not establish that it is a severe impairment
under the regulations. Severity is a separate determination. See,
20 C.F.R. §§ 404.1520(a)(4)(ii) and 404.1521; 20 C.F.R. §§
416.920(a)(4)(ii) and 416.921.
19

Under SSR 02-1p the impact of obesity on an individual’s
functioning must be considered in determining the severity of the
obesity and to what extent, if any, it affects the individual’s
residual functional capacity. SSR 02-01p specifically states:
There is no specific level of weight or BMI that equates
with a “severe” or a “not severe” impairment. Neither do
descriptive terms for levels of obesity (e.g., “severe,”
“extreme,” or “morbid” obesity) establish whether obesity
is or is not a “severe” impairment for disability program
purposes.
14

exertional or nonexertional limitations in his functioning.20

In

the

in

absence

of

evidence

that

this

condition

resulted

restrictions/limitations in the plaintiff’s ability to perform
work-related activities, it was not error for the ALJ to conclude
that this impairment was not severe and did not have an effect on
the plaintiff’s residual functional capacity.
2.

In

The vocational evidence relied on satisfied the
Commissioners burden of proof at the fifth step.
the

Fifth

Circuit

the

hypothetical

questions

to

the

vocational expert must reasonably incorporate the disabilities
recognized by the ALJ, and the plaintiff or his representative must
be

afforded

an

opportunity

to

correct

deficiencies

in

the

hypothetical questions by mentioning or suggesting to the expert
any purported defects in the hypothetical questions, including
additional disabilities not recognized by the ALJ’s findings and
disabilities recognized but omitted from the question.

If the

plaintiff or his representative are not given the opportunity to

20

On evaluating obesity in assessing an individual’s RFC, SSR
02-01p states:
Obesity can cause limitation of function. The functions
likely to be limited depend on may factors, including
where the excess weight is carried. An individual may
have limitations in any of the exertional functions such
as sitting, standing, walking, lifting, carrying,
pushing, and pulling. It may also affect ability to do
postural functions, such as climbing, balance, stooping,
and crouching. The ability to manipulate may be affected
by the presence of adipose(fatty)tissue in the hands and
fingers. The ability to tolerate extreme heat, humidity,
or hazards may also be affected.
15

correct the deficiencies in the questions, a determination of nondisability based on this defective question cannot stand and must
be reversed.

Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994);

Morris v. Bowen, 864 F.2d 333, 336 (5th Cir.1988).
Contrary to the plaintiff’s arguments, at the fifth step the
ALJ correctly applied these legal standards. Plaintiff argued that
it was error for the ALJ to rely on the expert’s response to a
hypothetical question that did not include consideration of his
obesity, diabetes and sleep apnea.

However, the plaintiff did not

testify

caused

that

these

impairments

him

any

work-related

limitations, and there was no objective evidence in the record to
support any such limitations.

Therefore, it was not error for the

ALJ to omit them from his question to the vocational expert.
The record demonstrates that the plaintiff’s representative
was given a full opportunity to question the expert and to correct
any deficiencies he found in the ALJ’s inquiry.

AR pp. 1015-17.

The ALJ properly obtained evidence from the vocational expert by
presenting a question that included the plaintiff’s age, education
and vocational background and an RFC that was supported by the
record.21

The expert responded by identifying several occupations

21

The ALJ analyzed all the evidence relevant to the RFC
finding in his written decision, and explained his reasons for
weighing the evidence and opinions contained in the record. AR pp.
870-75. It is the role of the ALJ to decide credibility, weigh the
evidence and resolve conflicts in the evidence. The ALJ’s findings
must be upheld if supported by substantial evidence. Greeenspan,
(continued...)
16

that exist in significant numbers in the national economy dishwashers, cleaners, grounds maintenance and food preparation
worker. This vocational testimony constitutes substantial evidence
to support the ALJ’s finding that the plaintiff was able to perform
other work.22

21

(...continued)
38 F.3d at 240.
After reviewing all the evidence, the ALJ concluded that if
the plaintiff did not abuse substances, he could perform work at
all exertional levels, but still had the following nonexertional
limitations: “able to understand, remember and carry out simple,
one or two-step instructions; make simple work-related decisions;
deal with only occasional changes with work processes or
environment; have only incidental contact with the general public;
and perform jobs that do not require him to work with or in close
proximity to non-supervisory co-workers.” AR p. 872. This RFC
finding is supported by substantial evidence - the hearing
testimony of Dr. Fain and the consultative psychological
examination of Alan Taylor, Ph.D. conducted on June 9, 2008. Based
on Dr. Fain’s testimony and the inconsistencies and exaggerations
noted in Taylor’s report, the ALJ found that overall the report
underestimated the plaintiff’s functional capacity. Therefore, the
ALJ discounted the marked limitations noted in the report.
AR
pp.872-74, 947-55, 993-1013.
22

It is well-established that the Commissioner may rely
exclusively on the medical-vocational guidelines only if the
guidelines evidentiary underpinnings coincide exactly with the
evidence of disability appearing in the record.
Bowling, 36 F.3d
at 435; Fields v. Bowen, 805 F.2d 1168, 1170-71 (5th Cir.
1986)(guidelines cannot be used when claimant suffers solely from
nonexertional impairments); Scott v. Shalala, 30 F.3d 33, 34-35
(5th Cir. 1994). The primary reason for reversing the
Commissioner’s first denial of the plaintiff’s claim, was the lack
of
vocational
expert
evidence
necessary
to
satisfy
the
Commissioner’s burden at the fifth step.
AR pp. 900-03.
The
record demonstrates that on remand the Commissioner corrected this
error.
17

3.

The Singletary analysis was sufficient and this finding
as well as the finding that the plaintiff’s drug and
alcohol abuse was a contributing factor material to his
disability, was supported by substantial evidence.

Plaintiff acknowledged that the Appeals Council considered and
analyzed his claim in light of Singletary v. Bowen, but maintained
that the analysis was inadequate and the finding lacked substantial
evidence.

This argument is not supported by the record.

First, the opinion in Singletary indicates that the claimant
did have a history of periodic alcohol and drug abuse. Singletary,
798 F.2d at 823.

However,

Singletary was decided prior to the

1996 changes in the law, which now require the Commissioner to
determine whether drug or alcohol addictions are contributing
factors material to the determination of disability.

The changes

place the burden on the claimant to prove that drug or alcohol
addiction is not a contributing factor material to his disability.
Therefore, it was not legal error for the Appeals Council to
consider the principles of Singletary along with the law and
regulations applicable to alcoholism and drug addiction.

AR p.

854.
Second, accepting that the Appeals Council’s analysis was not
extensive,23 it is still apparent from the decision that the Appeals
23

To the extent the Appeals Council did not engage in a more
extensive analysis, it is harmless error.
The correct legal
standards were applied and the finding was supported by substantial
evidence. “Procedural perfection in administrative proceedings is
not required” so long as “the substantial rights of a party have
(continued...)
18

Council accurately applied the principles of the case. The Appeals
Council noted the evidence showed that the plaintiff had many jobs
for

short

periods

of

time

and

admissions

for

mental

health

treatment during the relevant time period, but essentially found
that this was not merely the result of the plaintiff’s mental
illness/impairments - substance abuse was a material contributing
factor.

In other words the evidence showed that but for substance

abuse the plaintiff would not have been admitted so many times for
mental health treatment and would have been able to maintain
employment.
This conclusion is supported by substantial evidence.

As

testified to by Dr. Fain and shown by the mental health records
going back to 1998, virtually all of the treatment records and each
of the plaintiff’s hospitalizations for mental illness/treatment
noted the interrelationship of the plaintiff’s substance abuse with
his mental impairments.

Notably, when the plaintiff was not

abusing substances during his incarceration from June 2006 to April
2008, the treatment records contained little or no evidence of the
mental symptoms and limitations that the plaintiff experienced in
his previous hospitalizations/treatment of his mental impairments.24

23

(...continued)
not been affected.”
Mays v. Bowen, 837 F.2d 1362, 1364 (5th
Cir.1988); Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988).
24

The ALJ noted in his decision that there was no evidence to
suggest that the plaintiff had a source for alcohol or drugs during
(continued...)
19

AR pp. 935-48, 996-97, 1006-07.

The record contains more than

substantial evidence to support the finding that the substance
abuse contributed to the hospitalizations and inability to remain
employed.

AR pp. 128-56, 158-239, 247-685, 719-777, 994-1002.

This same evidence is also more than sufficient to support the
conclusion that the plaintiff was not disabled because drug and
alcohol

addiction

were

contributing

factors

material

to

the

determination of disability.
Conclusion
Accordingly, under sentence four of 42 U.S.C. §405(g), the
final determination of the Commissioner of Social Security Michael
J. Astrue, that plaintiff Adrian D. Douglas is not disabled and
denying his applications for disability and supplemental security
income

benefits,

is

affirmed.

A

judgment

shall

be

entered

dismissing this action.
Baton Rouge, Louisiana, January 29, 2013.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

24

(...continued)
this period of incarceration.

AR p. 871.
20