Baker v. Astrue

Filing 20

MEMORANDUM AND ORDER re: 12 SOCIAL SECURITY BRIEF filed by Plaintiff James Baker, 19 SOCIAL SECURITY CROSS BRIEF re 12 SOCIAL SECURITY BRIEF filed by Defendant Michael J. Astrue. IT IS HEREBY ORDERED that the relief which Baker seeks in his Complaint and Brief in Support of Plaintiff' s Complaint is DENIED. [Docs. 2,12.] IT IS FURTHER ORDERED that the Court will enter a separate judgment in favor of the Commissioner. IT IS FURTHER ORDERED that the Clerk of Court shall substitute Carolyn W. Colvin for Michael J. Astrue in the court record of this case. Signed by Magistrate Judge Nannette A. Baker on 10/24/13. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JAMES BAKER,
Plaintiff,
v.
CAROLYN W. COLVIN1,
Acting Commissioner of Social Security,
Defendant.

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Case No. 1:11-CV-205-NAB

MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the
Commissioner’s final decision denying James Baker’s (“Baker”) application for a period of
disability and disability insurance benefits and Supplemental Security Income (“SSI”) under
Title II and Title XVI of the Social Security Act. Baker alleges disability due to bipolar disorder,
manic depression, and thyroid problems. (Tr. 235.) The parties consented to the jurisdiction of
the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). [Doc. 9.]
Based on the following, the Court will affirm the Commissioner’s decision.
I.

Procedural History
On April 7, 2010, Baker filed applications for a period of disability, disability insurance

benefits, and SSI benefits. (Tr. 169-179.) The Social Security Administration (“SSA”) denied
Baker’s claim and he filed a timely request for a hearing before an administrative law judge
(“ALJ”). (Tr. 60-68.) The SSA granted Baker’s request and the hearing took place on January

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At the time this case was filed, Michael J. Astrue was the Commissioner of Social Security. Carolyn W. Colvin
became the Acting Commissioner of Social Security on February 14, 2013. When a public officer ceases to hold
office while an action is pending, the officer’s successor is automatically substituted as a party. Fed. R. Civ. P.
25(d). Later proceedings should be in the substituted party’s name and the Court may order substitution at any time.
Id. The Court will order the Clerk of Court to substitute Carolyn W. Colvin for Michael J. Astrue in this matter.

24, 2011. (Tr. 24-59.) The ALJ issued a written decision on May 13, 2011, upholding the denial
of benefits. (Tr. 10-19.) Baker requested review of the ALJ’s decision from the Appeals
Council and on September 16, 2011, the Appeals Council denied Baker’s request for review.
(Tr. 1-3.) The decision of the ALJ thus stands as the final decision of the Commissioner. See
Sims v. Apfel, 530 U.S. 103, 107 (2000). Baker filed this appeal on November 17, 2011. [Doc.
1.] The Commissioner filed an Answer on February 10, 2012. [Doc. 10.] Baker filed a Brief in
Support of his Complaint on March 9, 2012. [Doc. 12.] The Commissioner filed a Brief in
Support of the Answer. [Doc. 19.]
The Court has reviewed the parties’ briefs, the ALJ decision, the record including the
hearing transcript and medical documentary evidence. The complete set of facts and arguments
are presented in the parties’ briefs and are repeated here only to the extent necessary.
II.

Standard of Review
The Social Security Act defines disability as an “inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A).
The Social Security Administration uses a five-step analysis to determine whether a
claimant seeking disability benefits is in fact disabled.

20 C.F.R. §§ 404.1520(a)(1),

416.920(a)(1). First, the claimant must not be engaged in substantial gainful activity. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Second, the claimant must establish that he or she has an
impairment or combination of impairments that significantly limits his or her ability to perform
basic work activities. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Third, the claimant

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must establish that his or her impairment meets or equals an impairment listed in the appendix to
the applicable regulations. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(iii).
Fourth, the claimant must establish that the impairment prevents him or her from doing
past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At step five, the burden
shifts to the Commissioner to establish that the claimant maintains the residual functional
capacity to perform a significant number of jobs in the national economy. Singh v. Apfel, 222
F.3d 448, 451 (8th Cir. 2000). If the claimant satisfies all of the criteria under the five-step
evaluation, the ALJ will find the claimant to be disabled. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v).
This Court reviews decisions of the ALJ to determine whether the decision is supported
by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is
less than a preponderance, but enough that a reasonable mind would find adequate support for
the ALJ’s decision. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). Therefore, even if this
Court finds that there is a preponderance of evidence against the weight of the ALJ’s decision,
the decision must be affirmed if it is supported by substantial evidence. Clark v. Heckler, 733
F.2d 65, 68 (8th Cir. 1984). An administrative decision is not subject to reversal simply because
some evidence may support the opposite conclusion. Gwathney v. Chater, 1043, 1045 (8th Cir.
1997).
To determine whether the ALJ’s final decision is supported by substantial evidence, the
Court is required to review the administrative record as a whole to consider:
(1) The findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the
claimant;

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(3) The medical evidence given by the claimant’s treating
physician;
(4) The subjective complaints of pain and description of the
claimant’s physical activity and impairment;
(5) The corroboration by third parties of the claimant’s
physical impairment;
(6) The testimony of vocational experts based upon prior
hypothetical questions which fairly set forth the claimant’s
physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
III.

ALJ’s Decision
The ALJ determined that Baker met the insured status requirements of the Social Security

Act through December 31, 2013 and he has not engaged in substantial gainful activity since
December 7, 2007, the alleged onset date of disability. (Tr. 12.) The ALJ found that Baker had
the severe impairments of polysubstance abuse including cocaine, marijuana and alcohol,
substance induced mood disorder, nicotine abuse, personality disorder, not otherwise specified,
thyroid problems, crooked spine and lower back pain, borderline intellectual functioning2,
entrenched bereavement disorder with dependent traits, bipolar affective disorder, and major
depressive disorder.

(Tr. 12-13.)

Next, the ALJ determined that Baker did not have an

impairment or combination of impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 13.) The ALJ also found that
Baker had the residual functional capacity (“RFC”) to perform light work with the following
limitations: (1) no pushing and/or pulling with the lower extremities, (2) occasional crawling or
kneeling, (3) no air or vibrating tool use, (4) no operation of motor vehicles, (5) no work at
2

Borderline intellectual functioning is an IQ between 71-84. Diagnostic and Statistical Manual of Mental Disorders
740 (4th ed. Text Rev. 2000) (“DSM-IV-TR”).

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unprotected heights, (6) limited to brief, superficial, directly work related, and occasional contact
with co-workers, (7) limited to brief, superficial, directly work related, and occasional contact
with supervisors, (8) no interaction with the general public, and (9) SVP3 level of 1 or 2. (Tr.
14.) The ALJ found that Baker was unable to perform any past relevant work, but considering
his age, education, work experience, and RFC, there are jobs that exist in significant numbers in
the national economy that Baker can perform. (Tr. 18.) Finally, the ALJ concluded that Baker
has not been under a disability, as defined in the Social Security Act, through the date of the
decision. (Tr. 19.)
IV.

Discussion
Baker asserts that the ALJ committed two reversible errors. First, Baker contends that

the ALJ failed to properly conduct a drug addiction or alcoholism analysis by finding that Baker
did not meet a listing because of his drug and alcohol abuse. Second, he claims the ALJ erred in
finding that Baker did not meet Listing 12.05(C). The Commissioner asserts that the ALJ’s
opinion is supported by substantial evidence in the record as a whole.
A.

Listing 12.05(C)

Baker contends that the ALJ committed reversible error by failing to find that he met or
equaled Listing 12.05(C). Baker states that he had a valid non-verbal score of 64, a limited
education with poor adaptive skills, and severe impairments. The Commission asserts that Baker
does not meet the criteria for any subsection under Listing 12.05.
If a mental impairment is severe, the Commissioner must determine if it meets or is
equivalent in severity to a listed mental disorder. 20 C.F.R. §§ 404.1520a(d)(2), 416.920a(d)(2).

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SVP is the acronym for “specific vocational preparation time; i.e., how long it generally
takes to learn a job.” See Fines v. Apfel, 149 F.3d 893, 895 (8th Cir. 1998).

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An individual may be considered for mental retardation under Listing 12.05 at step three of the
evaluation process. Phillips v. Colvin, 721 F.3d 623, 625 (8th Cir. 2013). “Mental retardation
refers to significantly subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period , i.e., the evidence demonstrates
or supports onset of the impairment before age 22. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05.
Listing 12.05 requires the complainant to show either (1) mental incapacity evidenced by
dependence on others for personal needs and inability to follow directions; (2) a valid verbal,
performance, or FSIQ of 59 or less; (3) a valid verbal, performance or FSIQ of 60 through 70
and a physical or other mental impairment imposing an additional and significant work related
limitation of function, or (4) a valid verbal, performance, or FSIQ of 60 through 70 resulting in at
least two of the following: marked restriction in activities of daily living, marked difficulties in
maintaining social functioning, marked difficulties in maintaining concentration, persistence, or
pace, or repeated episodes of decompensation, each of extended duration. Id.
An impairment is medically equivalent to a listed impairment contained in appendix 1, if
it is at least equal in severity and duration to the criteria of any listed impairment. 20 C.F.R.
§§ 404.1526(a), 416.926(a). If a claimant has a combination of impairments, neither of which
meets a listing, the Commissioner is required to compare the claimant’s findings with those for
closely analogous listed impairments.

20 C.F.R. §§ 404.1526(b)(3), 416.926(b)(3).

If the

findings related to the impairments are at least of equal medical significance to those of a listed
impairment, the Commissioner will find that the impairment or impairments are medically
equivalent to that listing. 20 C.F.R. §§ 404.1526(b)(3), 416.926(b)(3). In determining medical
equivalence, all of the evidence in the case record about the impairment and its effect on the
claimant is relevant including the opinions of medical and psychological consultants designated

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by the Commissioner.

20 C.F.R. §§ 404.1526(c), 416.926(c).

Age, education, and work

experience are not considered. Id. The fact that the ALJ does not elaborate on his conclusion
that the claimant’s impairments do not meet or medically equal a listed impairment does not
require reversal when the record supports the ALJ’s overall conclusion. Karlix v. Barnhart, 457
F.3d 742, 746 (8th Cir. 2006).
“Listing 12.05(C) is based on a combination of an IQ score with an additional and
significant mental or physical impairment. The criteria for this paragraph are such that a medical
equivalence determination would very rarely be required.” Phillips, 721 F.3d at 630 (citing
POMS § DI 24515.056). “However, slightly higher IQ’s (e.g. 70-75) in the presence of other
physical or mental disorders that impose additional and significant work related function may
support an equivalence determination.” Id. at 630. “[G]enerally the higher the IQ, the less likely
medical equivalence in combination with another physical or mental impairment(s) can be
found.” Id. In cases where more than one IQ is customarily derived from the test administered,
e.g., where verbal, performance and full scale IQs are provided in the Wechsler series, the lowest
of these is used in conjunction with Listing 12.05. Id. at 630.
Merely being diagnosed with a condition named in a listing and meeting some of the
criteria will not qualify a claimant for presumptive disability under the listing.” McCoy v.
Astrue, 648 F.3d 605, 611-12 (8th Cir. 2011); 20 C.F.R. § 404.1525(d) (An impairment cannot
meet a listing based solely on a diagnosis). “For a claimant to show that his impairment matches
a listing, it must meet all of the specified medical criteria.” Jones v. Astrue, 619 F.3d 963, 969
(8th Cir. 2010) (emphasis in original). “An impairment that manifests only some of those
criteria, no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 529-30

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(1990) (superseded by statute on other grounds). “The claimant has the burden of proving that
[his] impairment meets or equals a listing.” Carlson v. Astrue, 604 F.3d 589, 593 (8th Cir. 2010).
In this case, the Court finds that the failure to find that Baker met Listing 12.05(C) is
supported by substantial evidence in the record as a whole. Baker is currently forty-five years
old. (Tr. 180.) There is no evidence in the administrative record demonstrating that Baker had
sub-average intellectual functioning with deficits in adapative functioning before the age of 22.
An IQ test administered in October 2010, when Baker was forty-two, shows a full scale IQ score
of 72, with a verbal standard score of 81 and a non-verbal score of 64. (Tr. 583.) Dr. Sara Hollis
opined that Baker was functioning in the average range of intelligence. (Tr. 583.) Baker did not
allege disability due to mental retardation or borderline intellectual functioning when applying
for benefits. (Tr. 235.) “The absence of a record of treatment, diagnosis, or even inquiry into a
mental impairment prior to applying for benefits weighs against finding there to be an
impairment.” Clay v. Barnhart, 417 F.3d 922, 929 (8th Cir. 2005). Moreover, Baker has never
been terminated from a job because of a lack of intellectual ability. Baker testified that he lost
his jobs because of his behavior and drugs (Tr. 40.) and noted on his Work Activity Report that
he left his jobs because of his drug problem, warrants for his arrest, and failure to obtain a raise.
(Tr. 295-96.) Baker also obtained a GED. (Tr. 582.) In addition, the record shows that Baker’s
borderline intellectual functioning did not prevent him from holding employment for several
years with the cognitive abilities he currently possesses. See Roberts v. Apfel, 222 F.3d 466, 469
(8th Cir. 2000). There is no evidence that Baker has a physical or mental impairment imposing
an additional significant work related limitation of function. Therefore, substantial evidence
supports a finding that Baker’s mental impairments do not meet or medically equal Listing
12.05(C).

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B.

Drug Addiction and Alcohol Determination

Next, Baker contends that the ALJ’s decision did not reflect the applicable regulations
regarding how to account for substance use disorders, failed to consider his total global
assessment functioning score, and whether his mental illness was the cause of his noncompliance with recommended treatment.
The Social Security Act states that if alcohol or drug abuse is a contributing factor
material to the determination of disability, the application must be denied.

42 U.S.C.

§ 423(d)(2)(C). The burden of proving that substance abuse is not a contributing factor material
to the disability determination falls on the claimant. Pettit v. Apfel, 218 F.3d 901, 903 (8th Cir.
2000). “The plain text of the relevant regulation requires the ALJ to first determine whether [the
claimant] is disabled.” Brueggemann v. Barnhart, 348 F.3d 689, 694 (8th Cir. 2003); 20 C.F.R.
§§ 404.1535(a), 416.925(a). “The ALJ must reach this determination initially, … using the fivestep approach without segregating out any effects that might be due to substance use disorders.”
Brueggemann, 348 F.3d at 694. “The ALJ must base this disability determination on substantial
evidence of [the claimant’s] medical limitations without deductions for the assumed effects of
substance use disorders. Id. “The inquiry here concerns strictly symptoms, not causes, and the
rules for how to weigh evidence of symptoms remain well established.” Id. Substance use
disorders are simply not among the evidentiary factors [precedents] and the regulations identify
as probative when an ALJ evaluates a physician’s expert opinion in the initial determination of
the claimant’s disability.” Id. “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.” Id. at 69495.

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Only after the ALJ has made an initial determination that a claimant is disabled, that drug
or alcohol use is a concern, and that substantial evidence on the record shows what limitations
would remain in the absence of alcohol or drug addiction, may he then reach a conclusion on
whether the claimant’s substance use disorders are a contributing factor material to the
determination of disability. Brueggemann, 348 F.3d at 695. “If the ALJ is unable to determine
whether substance use disorders are a contributing factor material to the claimant’s otherwise
acknowledged disability, the claimant’s burden has been met and an award of benefits must
follow.” Id. at 693. “When an applicant is actively abusing drugs, this inquiry is necessarily
hypothetical, and thus more difficult than if the claimant had stopped.” Kluesner v. Astrue, 607
F.3d 533, 538 (8th Cir. 2010). “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.” Brueggermann, 348 F.3d at 695.
In this case, the ALJ did not cite to the Social Security regulations regarding how to
account for substance use disorders in disability determination cases. The ALJ’s decision first
found that Baker met the insured status requirements and had not engaged in substantial gainful
activity. The ALJ then found that Baker had several severe impairments. At step three in the
evaluation process, the ALJ determined that the severity of Baker’s impairments meet the
requirements of Listing 12.09, substance abuse disorder (considered under Listing 12.04, when
substance abuse is considered). (Tr. 13.) The ALJ determined that Baker did not meet any
listing, singly or in combination, when substance abuse is not considered. (Tr. 13-14.)
Baker contends that the ALJ should have further developed the record by consulting a
medical expert regarding whether his substance abuse was a contributing factor material to the
disability determination. There is no bright line test for determining when the [Commissioner]

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has failed to develop the record. The determination in each case must be made on a case by case
basis.” Battles v. Shalala, 36 F.3d 43, 45 (8th Cir. 1994). A claimant for social security
disability benefits has the responsibility to provide medical evidence demonstrating the existence
of an impairment and its severity during the period of disability and how the impairment affects
the claimant’s functioning. 20 C.F.R. §§ 404.1512(c), 416.912(c). The ALJ has a duty to fully
develop the record. Smith v. Barnhart, 435 F.3d 926, 930 (8th Cir. 2006) (citation omitted).
This duty requires the ALJ to develop a complete medical history for the claimant for at least
twelve months preceding the month in which the claimant’s application was filed before making
a determination. 20 C.F.R. §§ 1512(d), 416.912(d). In some cases, this duty requires the ALJ to
obtain additional medical evidence, such as a consultative examination of the claimant, before
rendering a decision. See 20 C.F.R. §§ 404.1519a(b), 416.919a(b). “[R]eversal due to failure to
develop the record is only warranted where such failure is unfair or prejudicial. Shannon v.
Chater, 54 F.3d 484, 488 (8th Cir. 1995). “A claimant bears the burden of proving the ALJ failed
to adequately develop the record and this failure resulted in prejudice.” Sullins v. Astrue, No.
4:10-CV-1014 MLM, 2011 WL 4055943 (E.D. Mo. Sept. 6, 2011) (citing Onstad v. Astrue, 999
F.2d 1232, 1234 (8th Cir. 1993)).
The Court finds that the record was sufficiently developed in this case. The medical
record shows several hospitalizations and emergency room visits, which were initiated by Baker
due to his abuse of drugs. At almost every admission, Baker reported that a family member had
died, he relapsed into drugs, and was now suicidal. Although the ALJ found that Baker was not
credible when asserting that he had long periods of sobriety, the ALJ noted that Baker did have
periods of sobriety after he had undergone detoxification. (Tr. 16-18.) There is nothing in the

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medical record to suggest anything other than what is clearly apparent, Baker’s abuse of drugs is
a contributing factor material to the determination of disability.
Next, Baker asserts that the ALJ did not consider his total global assessment functioning
score history, which showed that he exhibited serious symptoms of mental illness even in the
hospital’s highly structured environment.

Global Assessment Functioning is a “clinician’s

judgment of the individual’s overall level of functioning.” Diagnostic and Statistical Manual of
Mental Disorders 32 (4th ed. Text Rev. 2000). “[The Commissioner] has declined to endorse the
[GAF] score for use in the Social Security and [SSI] disability programs, and has indicated that
GAF scores have no direct correlation to the severity requirements of the mental disorders
listings.” Jones v. Astrue, 619 F.3d 963, 973-974 (8th Cir. 2010). “An ALJ may afford greater
weight to medical evidence and testimony than to GAF scores when the evidence requires it.”
Jones, 619 F.3d at 974.
Baker’s reliance on Pate-Fires v. Astrue, 564 F.3d 935 (8th Cir. 1995) is misplaced. In
Pate-Fires, the claimant had an extensive mental health history, with a single notation of
reported marijuana use. In this case, Baker’s medical history shows that his low GAF scores
occurred when he was abusing cocaine, marijuana, and alcohol for extended periods of time.
Unlike Pate-Fires, Baker’s medical evidence indicates that substance abuse is a significant factor
in Baker’s impairments. Although the ALJ did not discuss Baker’s GAF scores, he cited to the
medical records that contain those scores. “An ALJ is not required to discuss every piece of
evidence submitted.” Wildman v. Astrue, 596 F.3d 959, 966 (quoting Black v. Apfel, 143 F.3d
383, 386 (8th Cir. 1998)). “Moreover, an ALJ’s failure to cite specific evidence does not
indicate that such evidence was not considered.” Id. (highly unlikely that ALJ did not consider
and reject physician’s opinion when ALJ made specific references to other findings set forth in

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physician’s notes). Therefore, the Court finds there was no error in the ALJ’s consideration of
Baker’s GAF score history.
Finally, Baker contends that the ALJ should have considered whether his mental illness
was the cause of his failure to seek treatment. The Court finds that substantial evidence in the
record demonstrates that the ALJ considered whether Baker’s mental illness was the cause of his
failure to seek treatment.

(Tr. 13-18.)

Specifically, the ALJ found that Baker’s mental

impairments are exhibited when Baker abuses substances and no longer has access to them. (Tr.
13.) The ALJ also found that Baker’s inpatient treatment providers opined that he showed
hypomanic symptoms with stimulant abuse and after a long period of abuse, it leads to
depression.

(Tr. 14.)

The ALJ also noted that Baker had not sought treatment for any

impairment unrelated to the symptoms of withdrawal from substance abuse and failed to follow
through with outpatient treatment. (Tr. 17.) Therefore, the ALJ’s opinion sufficiently addresses
the evidence in the medical record regarding the intersection between Baker’s impairments, his
substance abuse, and failure to seek treatment.
Accordingly,
IT IS HEREBY ORDERED that the relief which Baker seeks in his Complaint and
Brief in Support of Plaintiff’s Complaint is DENIED. [Docs. 2,12.]
IT IS FURTHER ORDERED that the Court will enter a separate judgment in favor of
the Commissioner.

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IT IS FURTHER ORDERED that the Clerk of Court shall substitute Carolyn W.
Colvin for Michael J. Astrue in the court record of this case.
Dated this 24th day of October, 2013.
/s/ Nannette A. Baker
.
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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