Bailey v. Astrue
Filing
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MEMORANDUM OPINION re 18 Judgment. Case remanded for determination of benefits. Signed by U.S. Magistrate Judge David A. Sanders on 9/7/12. (def)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JOANN BAILEY
VS.
CIVIL ACTION NO. 3:11CV160-DAS
MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration
MEMORANDUM OPINION
This matter is before the court pursuant to 42 U.S.C. § 405(g) to review the decision of
the Commissioner of Social Security denying the application of Joann Bailey for Disability
Insurance Benefits and Supplemental Security Income under the Social Security Act. The
parties in this case have consented to entry of final judgment by the United States Magistrate
Judge under the provisions of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for
the Fifth Circuit. The Court has considered the administrative transcript, the briefs of the parties,
and the applicable law and rules as follows:
I. FACTUAL AND PROCEDURAL HISTORY
On March 22, 2006, the claimant filed her initial request for disability benefits. After she
worked her way through the administrative process, the ALJ denied her application on December
2, 2008. Four years after filing her request, on March 22, 2010, the Commissioner moved to
remand the case pursuant to sentence four of 42 U.S.C. § 405(g). With that motion, the
Commissioner requested remand, explaining it believed the ALJ should conduct a supplemental
hearing to allow the claimant to submit additional evidence and for the ALJ to evaluate her
mental functioning properly. The claimant objected to the Commissioner’s request, but only to
request more specificity in the court’s order. The court granted the request and remanded with
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instructions that the ALJ “conduct a supplemental hearing, give the plaintiff the opportunity to
submit additional evidence, if required, and reconsider her impairments and properly evaluate
her mental functioning.”
On October 3, 2011, the ALJ entered his second decision, finding the claimant was not
disabled as defined by the Act, and on October 13, 2011 amended that order to correct a clerical
error. Now, the administration has once again moved for this court to remand the matter
pursuant to sentence four of 42 U.S.C. § 405(g), asking that this court order on remand that the
ALJ consider a medical source statement from Dr. Michael Whelan, a psychologist who
examined the claimant at least three times, including once in September 2008. Also, the
administration asks that the remand order direct the ALJ to provide a reference to a diagnosis of
substance abuse because the opinion explains that claimant was engaged in “extensive and
continuing substance abuse” without a diagnostic finding.
The claimant objects to the administration’s request, arguing essentially that enough is
enough, and the court agrees. The court’s initial remand order made it clear that the ALJ was to
consider and properly evaluate the claimant’s mental functioning. The administration concedes
with the present motion that the ALJ did not do so. Indeed, both aspects to which the
administration points specifically address aspects of the plaintiff’s mental status.
II. DISCUSSION
As the claimant points out, “[t]he Secretary is not entitled to adjudicate a case ‘ad
infinitum until it correctly applies the proper legal standard and gathers evidence to support its
conclusion.’” Sisco v. U.S. Dept. Of Health and Human Services 10 F.3d 739, 746 (10th Cir.
1993) (citing Sanders v. Sec. of Health and Human Services, 649 F. Supp. 71, 73 (N.D. Ala.
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1986)). The Commissioner asks the court to remand in part to allow the ALJ once again to
consider the claimant’s mental condition. Specifically, the Commissioner asks that the order
direct the ALJ to discuss Dr. Whelan’s September 2008 statement. However, in his decision, the
ALJ did consider Dr. Whelan’s September 2008 statement and cited it in his opinion.
Specifically, the ALJ wrote:
Dr. Michael Whelan indicated that the claimant experiences
significant difficulties at present in maintaining attention and
concentration, completing a normal work day and work week,
accepting instructions and supervision, interacting appropriately with
co-workers and the general public, and handling normal work stresses
(Exhibit B-30F).
Exhibit B-30F is Dr. Whelan’s September 2008 statement. Moreover, after referring to Dr.
Whelan’s report, the ALJ explained he would afford Dr. Whelan’s assessment “significant
weight.” Nevertheless, later in is opinion, the ALJ afforded Dr. Whelan’s opinions “limited
weight” because “his evaluations reflect the apparent failure of the claimant to inform this
psychologist of her poly-substance abuse and dependence.” The ALJ continues: “Dr. Whelan
opined that the record presents no indication that the claimant engages in substance abuse, but
the undersigned for the reasons set forth herein concludes to the contrary.” The ALJ’s reasons,
however, are meager at best. His reasoning is reflected in its entirety with the following
explanation:
The record evidence regarding mental issues demonstrates that the
claimant has engaged in extensive and ongoing poly-substance abuse
and dependence which constitutes a contributing factor material to
the determination of disability. The Life Help Crisis Center records
reflect significantly (Exhibit B-18F) that the claimant in about
September 2007 was instructed to go to the Tri-Lakes Medical Center
for de-toxification regarding Vicodin and Valium abuse but that this
Medical Center refused to accept her. The claimant has confirmed
significantly and repeatedly that she has never undergone this
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prescribed treatment. The claimant in October 2007 continued to
appear dependent upon prescription pain medications (Exhibit B18F). A February 2008 treatment note (Exhibit B-29F) reflects that
the claimant reportedly engaged in selling her medications to her
brother, who required admission to an emergency room due to a
Xanax overdose. The claimant at the prior hearing in this matter
denied selling her medications but the undersigned finds her denial
incredible. The treatment note continues that Dr. Reese’s office
refused in February 2008 to provide further treatment or medication
to the claimant (Exhibit B-29F). A subsequent treatment note
appears to reflect that the claimant’s attorney’s office thereafter
communicated with Dr. Reese’s office and the February 2008 report
had been resolved (Exhibit B29-F). The undersigned infers
reasonably from the foregoing that the claimant experiences an
extensive history of poly-substance abuse and dependence, that she
has not undergone prescribed treatment for this impairment, and that
he extensive history of poly-substance abuse continues in an ongoing
fashion to the present time.
After examining in detail both exhibits referenced, the court is unable to discern any evidence to
support the ALJ’s finding, and certainly there has not been such a finding from a medical expert.
Such a finding is, therefore, inappropriate. See, e.g., Frank v. Barnhart, 326 F.3d 618, 622 (5th
Cir. 2003) (quoting Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990) (“ALJ’s must not
succumb to the temptation to play doctor and make their own independent findings”)). It does
appear that in 2007, the plaintiff was taking pain medication, and it does appear from the note
that someone recommended she attempt to discontinue that use. There is nothing to suggest,
however, that she was abusing the medication. As for the 2008 report that she was providing
medication to her brother, it is unclear how such an event could possibly show the claimant had a
substance abuse problem.
In the end, there is no evidence that the claimant has a substance abuse problem, and it is
clear the ALJ based his finding that she was not disabled almost wholly on his opinion that she
did. Specifically, the ALJ found:
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Based on the vocational expert’s testimony, the undersigned
concludes that, if the claimant ceased her extensive and ongoing
poly-substance abuse and dependence, she would be capable of
making a successful adjustment to other work which exists in
significant numbers in the national economy. A finding of “not
disabled” is therefore appropriate under the framework of 202.18.
Because the manner in which he reached his finding was so clearly contrary to the law
and because his decision depended on this finding, the court finds that substantial evidence does
not support the ALJ’s decision. Clearly, the Commissioner agrees with this decision because he
has asked that this court remand the matter. However, because the claimant has been attempting
to obtain a decision for over six years and because the court already has remanded the matter
once with explicit instructions, the court finds that yet another remand for further consideration
would not be just. See Podedworny v. Harris 745 F.2d 210, 223 (3d Cir. 1984) (explaining that
“where further administrative proceedings would simply prolong the claimant’s ultimate receipt
of benefits,” a direct award is appropriate).
As the parties are well aware, the Commissioner conducts a five-step sequential analysis
in evaluating disability claims. In this analysis, the Commissioner determines:
Whether (1) the claimant is presently working; (2) the claimant has
a sever impairment; (3) the impairment meets or equals an
impairment listed in appendix 1 of the social security regulations; (4)
the impairment prevents the claimant from doing past relevant work;
and (5) the impairment prevents the claimant from doing any other
substantial gainful activity.
Audler v. Astrue, 501 F.3d 446, 447 (5th Cir. 2007). The claimant has the burden to prove the
first four steps, and the court finds she has done so. The Commissioner has the burden to meet
the fifth step or “that there is other substantial work in the national economy that the claimant
can perform.” Id. at 448. The court finds the Commissioner has failed to meet his burden. The
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ALJ found specifically:
Based upon the vocational expert’s testimony, the undersigned
concludes that, considering all of the claimant’s impairments at
present including her substance abuse disorder, the claimant is
unable to make a successful vocational adjustment to any work which
exists in significant numbers in the national economy. A finding of
“disabled” is therefore appropriate within the framework of the
above-cited rule.
(Emphasis added). It is clear from Dr. Whelan’s reports and the entirety of the record that the
claimant suffers from mental disorder(s). The ALJ attributed the effects of this disorder to
substance abuse, but there is no diagnosis or evidence to suggest such a finding.
III. CONCLUSION
Because substantial evidence does not support the ALJ’s decision the court remands this
matter for an immediate award of benefits. The court remanded the matter years ago with
specific instructions to the ALJ, and the ALJ failed to adhere to that order and failed to utilize
the proper legal standard. There is nothing in the record to support that ALJ’s “diagnosis” of a
poly-substance abuse, and when that “diagnosis” is removed, it is clear the Commissioner could
not put on evidence to show she could perform any work that exists in significant numbers in the
national economy. A final judgment consistent with this opinion will be entered.
SO ORDERED, this the 7th day of September, 2012.
/s/ David A. Sanders
UNITED STATES MAGISTRATE JUDGE
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