Montee v. Colvin

Filing 28

MEMORANDUM AND ORDER, Considering all the evidence in the record, the Court finds that there is substantial evidence to support the ALJ's decision. "If substantial evidence supports the ALJ's decision, [the Court] [should] not revers e the decision merely because substantial evidence would have also supported a contrary outcome, or because [the Court] would have decided differently." Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010). Therefore, IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED and this case is DISMISSED. An appropriate Order of Dismissal shall accompany this Memorandum and Order. (See Full Order) Signed by Magistrate Judge Thomas C. Mummert, III on 2/2/15. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
JAMES R. MONTEE,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case number 2:14cv0028 TCM

MEMORANDUM AND ORDER
This 42 U.S.C. § 405(g) action for judicial review of the final decision of Carolyn W.
Colvin, the Acting Commissioner of Social Security (Commissioner), denying the application
of James Montee (Plaintiff) for supplemental security income (SSI) under Title XVI of the
Social Security Act (the Act), 42 U.S.C. § 1381-1383b, is before the undersigned United
States Magistrate Judge by written consent of the parties. See 28 U.S.C. § 636(c).
Procedural History
Plaintiff applied for SSI on May 17, 2011, alleging he was disabled as of June 1, 2002,
because of anxiety, bipolar disorder, schizophrenia, multiple personality disorder, depression,
and a back injury. (R.1 at 138-43, 156.) His application was denied initially and after a
hearing held in January 2013 before Administrative Law Judge (ALJ) Michael Comisky. (Id.
at 6-35, 40-68.) The Appeals Council denied Plaintiff's request for review, thereby effectively
adopting the ALJ's decision as the final decision of the Commissioner. (Id. at 1-3.)

References to "R." are to the administrative record filed by the Acting Commissioner with
her answer.
1

Testimony Before the ALJ
Plaintiff, represented by counsel, and Denise Waddell, a vocational expert, testified at
the administrative hearing. Before any testimony was taken, Plaintiff amended his alleged
disability onset date to be the date he filed for SSI.
Plaintiff testified that he lives with his mother,2 completed the ninth grade, and has a
General Equivalency Degree (GED). (Id. at 45.) His mother is seventy-three years old, can
take care of herself, and reminds him to take his medications. (Id. at 48.) She drove him to
the hearing.3 (Id.) His caseworker reminds him to go to appointments. (Id.) He has five
children; three are under the age of eighteen. (Id. at 51.) Two of the three are daughters and
live with his sister. (Id.) The third is a son and is in foster care. (Id.)
Plaintiff had two jobs that the ALJ inquired about. One was working at Archer Tool
Company as an assembler of small parts for welding equipment. (Id. at 46.) This job was half
sitting, half standing and required that he lift nothing heavier than twenty pounds. (Id.) His
job as a cook at Chariton Nursing Care, Incorporated, required that he lift twenty-five pounds.
(Id. at 47.) Plaintiff cannot return to either job because he began to hear voices and think
others were talking about him behind his back. (Id.)
Plaintiff tried doing some computer repair work, but was slow and had difficulty
comprehending what needed to be done. (Id. at 42.) He also tried working at a service
station, but was fired after three days. (Id. at 57-58.)

2

Plaintiff stated that he had been living with his brother.

3

Plaintiff's driver's license has been suspended for back-owed child support.
-2-

Asked when he stopped drinking, Plaintiff replied that it was in May 2010 or 2011,
explaining that his memory was poor. (Id. at 47.) Plaintiff had been hospitalized in May 2011
for a week after relapsing and drinking whiskey. (Id. at 49.) He has not used alcohol since.
(Id.) The hospitalization was followed by inpatient rehabilitation. (Id.) Plaintiff is unable
to attend AA meetings because he has a problem being "in a close space with a certain amount
of people." (Id. at 50.)
Plaintiff has post-traumatic stress disorder (PTSD) due to his children being taken
away from him. (Id. at 52.) He also has bipolar disorder, schizophrenia, and manic disorder.
(Id. at 52-53.) He cannot concentrate on anything for longer than ten minutes. (Id. at 53.)
He has periods when he uses the computer at the library to go on dating websites to find
someone to talk to. (Id. at 54.) Approximately once a month for a two to three day period,
he is depressed and lies in bed all day. (Id.) He has difficulty sleeping. (Id. at 56.) At least
once a week, he has days where his mind races and he cannot concentrate.

(Id.)

Approximately one year earlier, he had a seizure. (Id. at 58.) This was thought to be due to
his medication and has not occurred again. (Id.)
Plaintiff has difficulty going out in public because he thinks people are staring at him.
(Id. at 55.)
Plaintiff takes Celexa (an antidepressant), Invega (used to treat schizophrenia),
Seroquel (an antipsychotic), BuSpar (an anti-anxiety medication), ranitidine (to reduce
stomach acid), Vistaril (a sedative), and other medications. (Id. at 55-56.)

-3-

Ms. Waddell, testifying without objection as a vocational expert (VE), described
Plaintiff's past relevant work as a small parts assembler as light and unskilled. (Id. at 59.) His
work as a cook was medium and skilled. (Id.)
She was then asked by the ALJ to assume a hypothetical claimant of Plaintiff's age (43
at the time of the hearing), education, and past work experience who can understand,
remember, and carry out simple work instructions; who can have frequent contact with
supervisors and coworkers but only occasional contact with the general public; who cannot
work around unprotected heights or dangerous machinery; and who cannot use motorized
driving equipment as a primary job duty. (Id.) Asked if this hypothetical claimant can
perform Plaintiff's past relevant work, the VE replied that he can work as a small parts
assembler but not as a cook. (Id.) He can also work at such jobs as a linen room attendant,
a lamination assembler, and a counter supply worker. (Id. at 60.) If this person has "no useful
ability to follow work rules, use judgment, deal with work stresses, . . . [and] behave in an
emotionally stable manner or relate predictably in social situations," these jobs were not be
available. (Id.) If once a week this person will not be able to concentrate for longer than
twenty minutes, these jobs are not available. (Id. at 60-61.) Nor are the jobs available if the
person will miss work two to three days a month due to symptoms of depression. (Id. at 61.)
The VE further stated that her testimony is consistent with the Dictionary of
Occupational Titles and with the Selected Characteristics of Occupations. (Id.)
Medical and Other Records Before the ALJ

-4-

The documentary record before the ALJ includes forms Plaintiff completed as part of
the application process, documents generated pursuant to his application, records from health
care providers, and assessments of his mental residual functional capacities.
Plaintiff reported on a Disability Report that he stopped working on November 1, 2002,
because of his condition.4 (Id. at 156.) He worked as an assembler from May 1999 to June
2000. (Id. at 157.) From 2006 to 2009, he was self-employed and did computer repair for one
hour a day for two days a week. (Id.) He earned $1.00 at this job. (Id.)
On a Function Report, Plaintiff described what he does during the day. (Id. at 173.)
He makes coffee, reads the newspaper, takes his medication, watches the news on the
computer, sometimes eats, and then goes to bed. (Id.) He does not take care of anyone else
or of any pets. (Id. at 174.) He does not go outside often, does not go to the store, and does
not sleep well. (Id.) He does not have any problems taking care of his personal grooming or
hygiene. (Id.) His impairments adversely affect his abilities to lift, squat, bend, stand, walk,
sit, kneel, talk, remember, concentrate, understand, climb stairs, follow instructions, get along
with others, and complete tasks. (Id. at 178.) He cannot walk farther than two blocks before
having to stop and rest for five to ten minutes. (Id.) He gets along very well with authority
figures. (Id. at 179.) He takes a cane with him in case his back gives out. (Id.)

A Report of Contact form describes a telephone conversation during which Plaintiff reported
that he felt "overwhelmed" with filling out the various forms and was going to see until he saw his
psychiatrist the next month to get help during so. (Id. at 199.) The disability worker replied that it
was preferable that the forms be received sooner and offered to help over the telephone to fill them
out. (Id.) Plaintiff called four days later to report he had completed the forms and was sending them
in. (Id.
4

-5-

An interviewer noted that Plaintiff answered questions without any difficulty. (Id. at
153.) Plaintiff explained, however, that he had memory problems so he could not give exact
dates for past treatment. (Id.) He also explained that the only one of his four prescribed
medications that he was taking was Celexa; he could not afford the others. (Id.)
An earnings record reflects that Plaintiff worked for Archer Tool Company in 1999,
earning $4,962.30,5 and in 2000, earning $2,431,40. (Id. at 144.) He had earnings from 1985
to 1995, inclusive, and in 1999 and 2000. (Id. at 145-46.) His annual earnings never exceed
$8,000. (Id.)
The relevant medical records before the ALJ are summarized below in chronological
order beginning with a master treatment plan developed in August 2009 6 for Plaintiff at the
North Central Missouri Mental Health Center (North Central) when he was diagnosed with
generalized anxiety disorder and alcohol dependence. (Id. at 323-27.) His current Global
Assessment of Functioning (GAF) was 40.7 (Id. at 323.) He had a history of anxiety and

5

All amounts are rounded to the nearest dollar.

A June 2009 record from Preferred Family Healthcare was also before the ALJ. (Id. at 229.)
This one-page "Discharge Summary" lists an admission date of March 25, 2009, and describes the
treatment as "unsuccessful." (Id.) The treatment was required as part of a stipulation by the Division
of Family Services (DFS) for Plaintiff to regain custody of his children. (Id.) He was reported to
have not remained engaged in treatment, to have continued to use marijuana and alcohol, and to have
missed appointments. (Id.) He would admit problems at one session and then deny those
admissions at the next session. (Id.) He showed signs of paranoia and admitted to hallucinations.
(Id.)
6

"According to the Diagnostic and Statistical Manual of Mental Disorders 32 (4th Ed. Text
Revision 2000) [DSM-IV-TR], the [GAF] is used to report 'the clinician's judgment of the
individual's overall level of functioning,'" Hudson v. Barnhart, 345 F.3d 661, 663 n.2 (8th Cir.
2003), and consists of a number between zero and 100 to reflect that judgment, Hurd v. Astrue, 621
F.3d 734, 737 (8th Cir. 2010). A GAF score between 31 and 40 is indicative of "[s]ome impairment
7

-6-

symptoms of obsessive-compulsive disorder. (Id. at 326.) His and his wife's children had
been removed from their home due to an infestation of fleas and tics. (Id.) They were seeing
a counselor. (Id.) The report referred both to Plaintiff continuing to drink and to not
drinking. (Id. at 326, 327.) He was self-employed doing computer work. (Id. at 327.) He
drank two to five cups of coffee a day and did not sleep well. (Id.) The psychiatrist, Henry
J. Wisdom, D.O., diagnosed Plaintiff with anxiety disorder and prescribed Lexapro (an
antidepressant). (Id.) A treatment objective was for Plaintiff to have no exacerbation of his
signs and symptoms for three months. (Id. at 324.) To achieve this objective, he was to take
the prescribed medications, to keep doctor appointments, and to report any side effects or
exacerbation of signs and symptoms. (Id. at 324-25.)
The following month, Plaintiff went to the emergency room at Moberly Regional
Medical Center (MRMC) for numbness in his entire body for the past three to four months
that had recently spread to his right hand. (Id. at 233-40.) Also, he had recently recovered
from the flu, but had developed a cold and leg pain. (Id. at 236.) He was taking Lexapro. (Id.
at 236.) His medical history was significant for anxiety, back problems, alcohol abuse, and
stomach ulcers. (Id.) He was given a script for a magnetic resonance imaging (MRI) of his
brain and cervical spine. (Id. at 239.) He was diagnosed with paresthesia and discharged in
stable condition within an hour of being seen and instructions to follow up with a Dr. Kahn
after getting the MRI results. (Id. at 237, 240.)

in reality testing or communication . . . OR major impairment in several areas, such as work or
school, family relations, judgment, thinking, or mood . . . ." DSM-IV-TR at 34 (emphasis omitted).
-7-

Three days later, Plaintiff was admitted to the University Hospital, explaining that he
did not have the ability to schedule an MRI. (Id. at 241-69.) It was revealed that he
occasionally heavily drank. (Id. at 241.) Alcohol cessation was recommended. (Id.) He
reported both that the numbness was not exacerbated by anything and that it was exacerbated
by exertion. (Id. at 247, 248.) It was mitigated by rest. (Id. at 248.) Physical examination
findings were normal, including his gait and cognitive function, with the exception of having
coarse breathing sounds and tachycardia (a faster than normal heart rate at rest). (Id. at 24849.) Also, he had sensory deficits consistent with his complaints. (Id. at 258.) He was alert
and oriented to time, place, person, and situation; had fluent speech; and intact naming,
reading, calculation, repetition, and recall. (Id. at 257-58.) He smoked one pack of cigarettes
a day. (Id. at 248.) An MRI of his cervical spine and of his thoracic spine were performed
and were unremarkable. (Id. at 244, 266-67.) A computed tomography (CT) scan of his head
showed no intracranial hemorrhage, mass, or evidence of a recent infarct, but did reveal a
moderate to severe sinus inflammation. (Id. at 265.) A chest x-ray showed no acute
cardiopulmonary findings. (Id. at 269.) Plaintiff was diagnosed with numbness and alcohol
abuse. (Id. at 245.) The next day, he refused to undergo two recommended tests, including
an electromyogram (EMG), and requested to be discharged. (Id. at 241, 260.) He was advised
to stop drinking. (Id. at 241.) At his request, a follow-up appointment was not scheduled.
(Id. at 246.)
Plaintiff again saw Dr. Wisdom on October 27, reporting he was doing as well as
possible. (Id. at 328.) The small dosage of Lexapro was apparently sufficient to control his
-8-

anxiety, fears, and panic. (Id.) He was calmer, felt more reassured, and was continued on his
medications. (Id.)
At Plaintiff's next, January 2010 visit, Dr. Wisdom increased the dosage of Lexapro
in case Plaintiff was tempted to drink. (Id. at 329.) His prognosis was guarded due to "his
long history of alcohol abuse." (Id.)
In February, Plaintiff was taken by ambulance to the emergency room at Pershing
Memorial Hospital after falling at the grocery store and hitting his head. (Id. at 274-88.)
Plaintiff informed the ambulance crew that the had had a seizure. (Id. at 288.) A CT scan of
his brain and skull showed soft tissue swelling of the scalp in the left occipitoparietal region
and pansinusitis. (Id. at 281.) Otherwise, it was normal. (Id.) Plaintiff was diagnosed with
a contusion and sinusitis; prescribed Zofran (an anti-nausea medication), Ativan (an antianxiety medication), and Cipro (an antibiotic); and discharged. (Id. at 282.).
In July, Plaintiff was seen at the MRMC emergency room for complaints of leg pain
for the past two to three weeks that was recently worse after he bumped his back on the car
door. (Id. at 291-300.) On a ten-point scale, the pain in his legs was a ten. (Id. at 294, 295.)
Plaintiff explained that he is an alcoholic – he drinks a fifth of whiskey a day – and has
seizures if he does not drink. (Id. at 294, 295, 299.) Even when drinking, he had night
tremors. (Id. at 294.) He walked with a cane. (Id. at 292.) He had taken ibuprofen the day
before. (Id. at 294.) He was described as not being a good historian. (Id. at 299.) He and his

-9-

wife were seeing a psychiatrist every month. (Id.) Tests revealed an ethanol level of 336.8
(Id. at 300.) Plaintiff was admitted to the hospital with diagnoses of acute alcohol intoxication,
alcohol withdrawal syndrome, and alcohol-induced neuropathy. (Id. at 297.) On admission,
he was intoxicated, tremulous, and had "some paranoid delusions." (Id.) He had a normal
mood and affect and slow cognition. (Id. at 300.) He was rehydrated with intravenous (IV)
fluids, detoxified, and seen by a physical therapist. (Id. at 297, 300.) Chest x-rays were
unremarkable. (Id. at 318.) He remained unsteady with a wide stance gait and had a tendency
to fall backwards when standing from a seated position. (Id. at 297.) He was discharged on
July 12 with diagnoses of alcohol intoxication, alcohol withdrawal syndrome, alcohol
myopathy and weakness with ataxic gait; abnormal transaminases and thrombocytopenia (low
platelet count) due to chronic alcohol abuse; and nicotine dependence. (Id.) His only
prescription medication was Celexa. (Id.) He was to see his primary care physician within
two weeks and was encouraged to exercise, comply with his medication regimen, and stop
smoking and drinking. (Id.) He declined a referral to a rehabilitation unit or to outpatient
physical therapy. (Id. at 298.)
In November, Plaintiff consulted the health care providers at Burrell Behavioral Health
(Burrell) because he wanted to get back on Celexa. (Id. at 367-69.) He had been off of it for
four months because he could not afford it; DFS had been, and was no longer, paying for his

In most jurisdictions in the United States, a level of 80 mg/dL is prima facie evidence of
being under the influence of alcohol for purposes of driving a motor vehicle. Mayo Clinic, Test ID:
Ethanol, Blood, http://www.mayomedicallaboratories.com/test-catalog/Clinical+and+Interpretive
(last visited Jan. 27, 2015). A level equal to or greater than 400 mg/dL is potentially lethal. Id.
8

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medications and his "psych visits." (Id. at 367.) He had not drunk alcohol for the past six
months. (Id. at 368.) On examination, he was alert and oriented to time, place, and person;
initially had poor eye contact, but improved with conversation; had a depressed mood and flat
affect; was of average intelligence; had minimal problems with dates and memory recall; had
fair judgment and insight; spoke articulately; and had logical and coherent thoughts with a
negative connotation. (Id.) His symptoms included a low mood, low self-esteem, anxiety
when in public, and paranoia. (Id.) He was diagnosed with mood disorder, not otherwise
specified, and alcohol and marijuana dependence, each in early remission. (Id.) His current
GAF was 51.9 (Id.) Plaintiff was referred to the Family Health Center for medication
management and advised to attend AA (Alcoholics Anonymous). (Id.) 369.)
In January 2011, Plaintiff terminated the services from North Central. (Id. at 330-32.)
In May, Plaintiff was admitted from the emergency room to University Hospital for
alcohol intoxication. He had a history of alcohol intoxication with suicidal ideation and had
thoughts of setting his house on fire when intoxicated. (Id. at 335-48.) He was going through
a divorce, his girlfriend had left him, his children were in foster care, and he was unemployed.
(Id. at 335, 338.) He had been binge drinking for the past four days, drinking one-fifth of
whiskey every day. (Id.) His blood alcohol level was greater than 250. (Id.) His longest
period of sobriety was a month, and that was several months earlier. (Id. at 341.) He

A GAF score between 51 and 60 indicates "[m]oderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or
school functioning (e.g., few friends, conflicts with peers or co-workers)." DSM-IV-TR at 34
(emphasis omitted).
9

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intermittently worked on fixing computers. (Id.) He smoked one pack a cigarettes a day, and
had done so for fifteen years. (Id. at 338, 342.) He denied auditory hallucinations but had
visual ones of seeing shadows in the corner of his eyes. (Id. at 341.) The hallucinations were
not affected by his drinking. (Id.) He had obsessive compulsive traits of touching and
checking to make sure the refrigerator door was closed, and felt the traits were getting worse.
(Id.) He did not like crowds and did not like meeting new people. (Id.) He had daily panic
symptoms that lasted a few seconds. (Id.) He had always been paranoid, worried, and
anxious. (Id.) He denied having PTSD. (Id. at 342.) He had had more suicide attempts than
he could remember, but had had no hospitalizations. (Id.) He had recently stopped taking his
medications for bipolar disorder and schizophrenia. (Id. at 339.) A review of his physical
systems was normal. (Id.) His mental status examination revealed a normal, disheveled
appearance; an anxious and severely depressed mood; a flat and blunted affect; a mild
impairment in memory; and fair insight and poor judgment. (Id. at 344-45.) He was
diagnosed with alcohol dependence; major depressive disorder, recurrent, severe, with
psychotic symptoms; and generalized anxiety disorder. (Id. at 345.) He was prescribed
trazodone and Prozac and transferred two days later to another facility for in-patient
psychiatric treatment.10 (Id. at 335, 345.)
In July, on referral of the psychiatric facility and after a diagnosis of major depressive
disorder, Plaintiff had an intake assessment for Burrell Behavioral Health. (Id. at 353-66,
446-59.) He reported that he was depressed and had mood swings. (Id. at 353.) He was

10

There were no records of such treatment before the ALJ.
- 12 -

hearing voices telling him he was worthless. (Id.) He was divorced and had broken up the
past April with a girlfriend after a four-month relationship. (Id.) He reported he had been
diagnosed with bipolar disorder, but could not recall the source of the diagnosis; has had
multiple personalities since the age of twenty; and had heard voices and had feelings of
paranoia since approximately the age of twelve. (Id. at 353, 354.) He was not currently
receiving any psychiatric treatment and had been hospitalized for mental health treatment. (Id.
at 354.) He was taking Celexa and found it to be of benefit, but had taken his last pill that
morning. (Id. at 354, 366.) He had started drinking at the age of twelve, had abused alcohol
until October 2010, had gotten drunk once in April 2011, and was not currently drinking. (Id.
at 355, 360.) He was obsessively using dating sites. (Id. at 355, 357.) He had applied for
SSI, but his goal was to get back to work. (Id. at 357.) He had recently worked at a gas
station but had quit after a few days because it was "'too stressful.'" (Id. at 359.) The
examiner noted that Plaintiff was unkempt, coordinated, had no difficulty attending to the
examiner, and was oriented to time, place, person, and situation. (Id. at 361.) The examiner
also "question[ned] the authenticity of [Plaintiff's] symptoms and the truthfulness in
reporting." (Id. at 353.) He did not have any problems with his memory, but his "speech was
often illogical and tangential." (Id. at 362.) The examiner was not sure about how accurate
a historian Plaintiff was, including having multiple personalities, and noted that "[h]e
appeared very nervous, fidgeting constantly." (Id.) The examiner opined that Plaintiff
struggled with his addiction and depression and appeared to lack motivation to succeed in

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treatment. (Id. at 363.) Plaintiff was diagnosed with major depressive disorder, recurrent, and
alcohol and cannabis dependence. (Id. at 365.) His GAF was 45.11 (Id. at 366.)
On July 12, Plaintiff saw Forest Conley, D.O., to establish care. (Id. at 374.) Plaintiff
reported he had been out of his medications for a week and was becoming depressed. (Id.)
He had a long history of depression and, because of his back pain, suffered from insomnia.
(Id.) He was diagnosed with depression, given a prescription for Celexa, and referred for
mental health treatment. (Id.)
The following week, a treatment and rehabilitation plan was developed for Plaintiff at
Burrell. (Id. at 437-45.) His primary diagnosis was major depression disorder; additional
diagnoses were alcohol and cannabis dependence. (Id. at 437.) His goals were to improve
his psychiatric and physical health stability; to learn to manage his anxiety and depression; to
improve his self-esteem; and to increase his independence through employment and housing.
(Id.)
In August, Plaintiff saw Justin Blount, M.D., a psychiatrist at Burrell. (Id. at 395-97,
466-68.) Plaintiff reported he had multiple personalities and a history of paranoia and of
manic behavior. (Id. at 395.) Dr. Blount noted that Plaintiff stated he was "hyper" but Dr.
Blount did not feel he appeared so. (Id.) Plaintiff reported he had a history of wrecking
vehicles, thought he could fly, and had panic attacks, during which he had tunnel vision. (Id.)

A GAF score between 41 and 50 is indicative of "[s]erious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job)." DSM-IV-TR at 34
(emphasis omitted).
11

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He was frequently nervous, had difficulty concentrating, and could not sleep. (Id.) He had
visual hallucinations of seeing shadow people and auditory hallucinations of hearing music
in his head. (Id.) He had been beaten and sexually abused as a child. (Id.) He had been
prescribed Celexa when in the hospital, but was not currently taking it. (Id. at 396.) He last
was drunk in April 2011. (Id.) He was not currently drinking and was not taking any
medications. (Id.) He was applying for disability. (Id.) He had had "[s]ignificant marijuana
use in the past," began drinking "significantly" around age twelve, and had "tried meth." (Id.)
He was "using multiple dating sites and ha[d] multiple girlfriends" on those sites. (Id.) He
did not, however, have any intention of or desire to meet any of the people he was meeting
online. (Id.) On examination, he had a slightly disheveled appearance; normal speech; a
slightly labile and irritable mood; a circumstantial and tangential thought process; and poor
judgment. (Id. at 396-97.) He was alert and oriented. (Id. at 397.) He "appear[ed] to have
paranoid delusions as well as grandiose delusions when manic." (Id.) He was diagnosed with
schizoaffective disorder, bipolar type, and a history of alcohol and cannabis dependence. (Id.)
His current GAF was 40. (Id.) He was prescribed Invega, Celexa, and Ambien (a sedative).
(Id.)
When he next saw Dr. Blount, in October, Plaintiff informed him that he had started
drinking for a short period. (Id. at 398-99, 469-70.) He thought the government was
watching him and people were jealous of him. (Id. at 398.) He had dreams "[a]bout selling
things, which he is doing in real life." (Id.) He had a child support hearing the next month.

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(Id.) He had a "somewhat flat" affect and talked nonstop. (Id.) His dosage of Invega was
increased; his other medications were continued. (Id.)
In December, Plaintiff reported to Dr. Blount that he was more anxious and depressed.
(Id. at 400-01, 471-72.) He had to go to AA and approved substance abuse counseling before
the court would allow him to see his children; he had not done either yet. (Id. at 400.) The
child support hearing had gone "well[;] it got continued." (Id.) He tried to avoid people. (Id.)
He was depressed and anxious and had a flat affect. (Id.) He was prescribed Celexa and
Seroquel and told to cut out caffeine. (Id.)
In January 2012, Plaintiff was evaluated at Burrell by Emily Crawford, Ph.D. (Id. at
402-11.) He appeared alert, pleasant, polite, forthright, and cooperative. (Id. at 402.) He was
alert and oriented to time, place, and person, and appeared to be intelligent and have a sense
of humor. (Id.) He was talkative and went off on tangents, sometimes forgetting the question.
(Id.) He had a blunt affect, minimal eye contact, and a "somewhat anxious" mood. (Id.) He
took Celexa, Seroquel, and Invega. (Id. at 403.) Other than back pain, he had no physical
problems. (Id.) He had never tried to commit suicide. (Id.) He had mood swings that lasted
for weeks. (Id.) His depressive episodes use to last for weeks and now only lasted for days.
(Id.) His manic episodes used to occur every day but now occurred two days at most. (Id.)
He slept for four, non-consecutive hours a night. (Id.) He attributed his anxiety to an event
that happened when he was twelve – a group of males jumped him and took his bicycle. (Id.)
He has panic attacks at home for no apparent reason. (Id. at 404.) He had been bullied since
the age of eight. (Id.) He last worked five years earlier. (Id.) He lives with his mother and
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serves as her caretaker. (Id. at 406.) She has chronic obstructive pulmonary disease and is
senile. (Id.) He has been sober since October 2010 with the exception of being intoxicated
in April 2011. (Id.) Plaintiff was given several tests, the results of which were described by
Dr. Crawford as follows.
Results of this assessment . . . provide confirmatory evidence for previously
assigned diagnosis of Major Depressive Disorder, Recurrent. James appears to
struggle with pervasive feelings of worthlessness and poor self-image. His
estranged relationships with his children appear to exacerbate his depressive
symptoms. He expressed knowledge of the steps that would need to be taken
to improve these relationships, but he also expressed ambivalence about
completing these steps. James's tendency to be passive and to shirk
responsibilities may stem from apathy and fatigue. Alternatively, his passivity
and affective unresponsiveness may reflect an attempt to restrain underlying
anger, anxiety, and depression.
Further diagnostic clarity is not possible at this time due to James's tendency to
readily endorse any perceived problems, to the degree that one of the measures
in this assessment12 was invalid. This pattern of responding may reflect that he
is experiencing an especially distressing degree of emotional turmoil, and/or an
attempt to portray oneself as especially symptomatic. James reported that he
has previously been diagnosed with Bipolar Disorder. He endorsed past
symptoms that could characterize a history of manic episodes. In addition, it
is possible that some of the symptoms that are currently conceptualized as part
of a long-standing personality pattern actually reflect some symptoms of a mood
disorder. . . .
(Id. at 410 (footnote added)). She diagnosed Plaintiff with PTSD; Major Depressive Disorder,
recurrent, per records; and alcohol and cannabis dependence in sustained full remission. (Id.)
Schizoaffective disorder was to be ruled out.

(Id.)

His GAF was 45.

(Id.)

She

The Minnesota Multiphasic Personality Inventory – 2 – Restructured Form. Also, Plaintiff's
responses on the Trauma Symptom Inventory were to "interpreted with caution, as [Plaintiff] tended
to endorse most symptoms." (Id. at 408.) His results on the Millon Clinical Multiaxial Inventory
were also to "be interpreted with caution, as his response pattern indicates that he tended to readily
endorse any perceived problems." (Id. at 407.)
12

- 17 -

recommended, among other things, that he participate in regular treatment appointments. (Id.
at 410-11.)
The next month, Plaintiff reported to Dr. Blount that he was "'[d]oing fairly well.'" (Id.
at 473-74.) His depression was not as bad as before and he was not as paranoid as before.
(Id. at 473.) He was living with his mother and was concerned that he would return to
drinking if he lived alone. (Id.) He did not attend the court approved substance program, but
was doing a program online. (Id.) His court case was continued again and may be until "he
gets his disability." (Id.) He continued to see shadows occasionally. (Id.) He wanted Dr.
Blount to find him a girlfriend. (Id.) On examination, he was alert, had a "somewhat flat"
affect, reported he was depressed and anxious, and talked nonstop. (Id.) His Seroquel dosage
was increased; his other medications were continued. (Id.)
At his next scheduled Burrell appointment, on May 4, Plaintiff was seen by Andrea
Earlywine, A.P.N., C.N.S., R.N. (Id. at 475-76.) Plaintiff reported that he was doing well
with the exception of a few days a month when he becomes more manic, paranoid, and
anxious. (Id. at 475.) His depression was stable and was usually a three on a ten-point scale.
(Id.) There was stress at home due to his mother's financial issues. (Id.) He had visited a
woman he had met over the internet for a week and she was getting ready to visit him the next
month. (Id.) He was not as pleased about being in a relationship as he thought he would be.
(Id.)

He was compliant with his medications; there were no side effects.

(Id.)

On

examination, he had an anxious mood, reactive affect, fair to good insight and judgment, a
grossly intact memory, good eye contact, normal speech, and a linear and abstract flow of
- 18 -

thought. (Id. at 476.) He was alert and oriented to time, place, and person. (Id.) Ms.
Earlywine noted that his diagnosis of schizotypal personality disorder13 was provisional
pending psychological testing. (Id.) His GAF was 54. (Id.) BuSpar was added to his
medications. (Id.)
Plaintiff was seen at Burrell on July 13 by Jairam Das, M.D. (Id. at 477-78.) Plaintiff
reported that he had been having difficulty sleeping and urinating and was feeling confused
during the day. (Id. at 477.) He thought these problems might be side effects of his
medications. (Id.) On examination, he was cooperative and had good eye contact, normal
speech, a euthymic mood and congruent affect, linear and goal-directed thought processes,
intact memory, and fair insight and judgment. (Id. at 478.) Dr. Das diagnosed Plaintiff with
schizoaffective disorder, PTSD, and alcohol and marijuana dependence, each in sustained full
remission. (Id.) His GAF was 60. (Id.) He decreased Plaintiff's dosage of Seroquel, started
him on prazosin (used to treat hypertension), and continued him on his other medications.
(Id.)
Two days later, Plaintiff was taken by ambulance to the emergency room at MRMC
after his mother witnessed him having a seizure. (Id. at 419-22, 425-31.) He was given
Dilantin and admitted for observation. (Id. at 420.) His medications included Invega,
Seroquel, Celexa, Zantac (the brand form of rantidine), and Minipress (the brand form of
prazosin). (Id.) On examination, he appeared to be "fairly appropriate," but tired. (Id. at

"Schizotypal Personality Disorder is a pervasive pattern of social and interpersonal deficits
marked by acute discomfort with, and reduced capacity for, close relationships as well as by cognitive
or perceptual distortions and eccentricities of behavior." DSM-IV-TR at 697.
13

- 19 -

421.) His urinary analysis, brain CT scan, and alcohol and drug levels were insignificant. (Id.
at 421, 431.) It was undecided whether he had had a pseudoseizure or a true seizure. (Id. at
421.) He was discharged the next day in stable condition. (Id.)
On July 25, Plaintiff consulted Iqbal Khan, M.D., a neurologist, about the seizure. (Id.
at 412-13.) His alcohol level was low; Plaintiff reported he had been sober for a couple of
years. (Id. at 412.) He had run out of the Dilantin given him for his seizures. (Id.) On
examination, Plaintiff was pleasant, cooperative, alert, and oriented to time, place, and person.
(Id. at 413.) He had full motor strength and 2/4 reflexes in all his extremities. (Id.) His gait
was unremarkable; he could tandem walk. (Id.) Dr. Kahn recommended an MRI of the brain
and anti-epileptic medication. (Id.) Plaintiff was started on Keppra and was to return in one
month. (Id.)
Two days later, Plaintiff's Burrell assessment was updated. (Id. at 460-65, 479-87.)
Dr. Das was the consulting psychiatrist. (Id. at 465.) Plaintiff reported that his depression had
improved to the extent he was going to bed depressed approximately only two days a month.
(Id. at 460.) His manic episodes, during which he stays up for several days and does not leave
his mother's house, continued but had decreased in frequency. (Id.) Also continuing were his
irritability, feelings of worthlessness, and auditory and visual hallucinations. (Id.) He
continued to have several alter egos, although the disrespectful, selfish, and easily irritated ego
had not surfaced for at least a year. (Id.) His sleep was irregular; his short term memory was
poor. (Id.) His diagnoses included major depressive disorder, recurrent, moderate; alcohol

- 20 -

and cannabis dependence; PTSD; and schizotypal personality disorder. (Id. at 462-63.) His
GAF was 35. (Id. at 464.)
On August 2, Plaintiff had an eye exam by Rashed Nizam, M.D., for hyperopia
(farsightedness) and suspected glaucoma. (Id. at 492-96.)
On August 20, Dr. Kahn noted that the MRI of Plaintiff's brain was unremarkable
except for an apparently-benign venous enlargement of the right posterior convexity. (Id. at
414, 423-24, 432-33.) Plaintiff was taking the Keppra, had not had any seizures, and had no
new complaints. (Id. at 414) A brief neurological examination was normal. (Id.) The Keppra
dosage was doubled. (Id.)
The next day, Plaintiff returned to Dr. Nizam, underwent a prophylactic peripheral
iridotomy of the right eye (a procedure to address glaucoma) and was prescribed Flarex to
treat eye swelling. (Id. at 497-500.) The same procedure was performed on his left eye the
next month. (Id. at 502-06.)
Plaintiff reported to Dr. Das on September 28 that he was continuing to have problems
sleeping. Dr. Das noted that Plaintiff had telephoned after his last visit, reporting that he was
unable to sleep on the lower dose of Seroquel. (Id. at 488.) Vistaril was added. (Id.) Plaintiff
explained that sometimes he slept more than usual and sometimes less. (Id.) He was educated
about sleep hygiene and exercise. (Id.) On examination, he was as before with the exception

- 21 -

his mood was bored. (Id. at 489.) His diagnoses and prescriptions14 were unchanged. (Id.)
His GAF was 50. (Id.)
In November, Plaintiff reported to Dr. Khan that he was "doing really good." (Id. at
415.) He was compliant with his medication. (Id.)
Also before the ALJ were assessments of Plaintiff's mental residual functional
capacities.
In February 2009, at the request of his caseworker, Plaintiff underwent psychological
testing and assessment by Frederick W. Nolen, Ph.D. (Id. at 220-26.) Plaintiff reported that
he had begun drinking alcohol when he was twelve, had a DWI charge in 2001, and smoked
marijuana from the age of twelve up to September 2008. (Id. at 221.) He was in inpatient
rehabilitation in September 2008. (Id.) He had not been in any outpatient counseling or
therapy. (Id.) He did not attend AA meetings because he was only a binge drinker. (Id.) He
was self-employed, "working on computers." (Id.) He was married and had five children.
(Id.) He attributed the fleas that had infested their house – the reason the State cited for
removing the children – to the family "'travel[ing] a lot in the summer.'" (Id.) One summer,
they had gone to Worlds of Fun thirty-three times. (Id.) They used to got to Bingo three times
a week. (Id.) Plaintiff was given a variety of intelligence and personality tests. (Id. at 22225.) Dr. Nolen's findings based on the test results include that Plaintiff was "able to maintain
focus and effort to both simple and moderately complex tasks"; he paid adequate attention to

Dr. Das' notes read that the dosage of Seroquel was to be decreased and prazosin was to be
added; however, these medication changes had previously been made.
14

- 22 -

interactions with his peers; there were no indicators he had been sexually abused as a child;
and he was phobic about closed places. (Id. at 222-24.) His scores on the Kaufman Brief
Intelligence Test placed him in the "'average' range of intelligence." (Id. at 222.) Plaintiff
denied memory lapses and auditory hallucinations. (Id. at 223.) Dr. Nolen diagnosed Plaintiff
with PTSD, by life history; marijuana abuse, in brief remission by Plaintiff's report; and
alcohol abuse, in brief remission by Plaintiff's report. (Id. at 225.) His GAF was 40. (Id.)
In August 2011, a Psychiatric Review Technique form was completed by Barbara
Markway, Ph.D. (Id. at 380-91.) After reviewing Plaintiff's hospitalization records from
November 2010 and May 2011 and the July 2011 Burrell evaluation, Dr. Markway assessed
Plaintiff as having affective disorders, i.e., major depression disorder, recurrent, mild, and
mood disorder, not otherwise specified, and substance addition disorders, i.e., alcohol and
marijuana dependence in early remission. (Id. at 380, 383, 386.) If Plaintiff were to stop
abusing alcohol, these disorders would result in mild restrictions in activities of daily living,
moderate difficulties in maintaining social functioning, and moderate difficulties in
maintaining concentration, persistence, or pace. (Id. at 388.) They would not cause any
episodes of decompensation of extended duration. (Id.)
On a Mental Residual Functional Capacity Assessment form, Dr. Markway rated
Plaintiff as being moderately limited in one of the three abilities in the area of understanding
and memory, i.e., understanding and remembering detailed instructions, and not significantly
limited in the other two. (Id. at 392.) In the area of sustained concentration and persistence,
Plaintiff was moderately limited in two of the eight listed abilities, i.e., the ability to carry out
- 23 -

detailed instructions and the ability to maintain attention and concentration for extended
periods, and was not significantly limited in the remaining six. (Id. at 392-93.) He was
moderately limited in two the five abilities in the area of social interaction, i.e.,the ability to
interact appropriately with the public and the ability to get along with coworkers or peers
without distracting them or exhibiting behavioral extremes. (Id. at 393.) He was not
significantly limited in the other three abilities. (Id.) And, Plaintiff was moderately limited
in one of the four abilities in the area of adaptation, i.e., his ability to travel in unfamiliar
places or use public transportation, and was not significantly limited in the other three,
including in his ability to respond appropriately to changes in the work setting. (Id.)
In December 2012, Dr. Das completed a Medical Assessment of Ability to Do Work
(Mental) on Plaintiff's behalf. (Id. at 435-36.) In the eight activities listed for "Making
Occupational Adjustments," Dr. Das rated Plaintiff as having a poor or no ability in three,
including in his ability to follow work rules, use his judgment, and deal with work stresses,
and a fair ability in five, including in his abilities to interact with the public, co-workers, and
supervisors; to function independently; and to maintain attention and concentration. (Id. at
435.) In the three activities listed for "Making Performance Adjustments," Plaintiff had a poor
or no ability in one and a fair ability in two, including in his abilities to understand, remember,
and carry out detailed or simple, but not complex, job instructions. (Id. at 436.) In the four
activities listed for "Making Personal Social Adjustments," Plaintiff had a poor or no ability
in two and a fair ability in two, including in demonstrating reliability. (Id.) Dr. Das attributed
Plaintiff's limitations to his PTSD, schizoaffective disorder, and mood fluctuations. (Id. at
- 24 -

435-36.) Also, he opined that the "stress of work[,] social interaction may make [it] difficult
[for Plaintiff] to work and some medications may make him drowsy." (Id. at 436.)
The ALJ's Decision
The ALJ first found that Plaintiff has not engaged in substantial gainful activity since
his amended alleged disability onset date of May 17, 2011. (Id. at 12.) He then summarized
in detail Plaintiff's work and disability application history, noting that he last had reported
earnings in 2000, two years before his original disability onset date alleged in the pending SSI
application and also two years before he filed his first set of five disability claims.15 (Id.) The
earliest disability onset date alleged in any prior applications was August 1998 and was not
preceded by any period of substantial earnings. (Id.) The ALJ found that Plaintiff has an
"overall very poor work history" that reflects the lack of "a consistent and compelling
financial incentive to maintain full-time competitive employment." (Id.) His absences from
the workforce were not because of a medical condition but were attributable, "in at least large
part, to his longstanding history of polysubstance abuse rather than due to alleged physical and
mental impairments." (Id. at 12-13.)

The five cited by the ALJ include (1) claims filed in August 2002 alleging a disability onset
date of August 1998; (2) claims filed in August 2003 alleging a disability onset date of March 2000;
(3) claims filed in July 2004 alleging the same disability onset date as the second set; (4) claims filed
in May 2010 alleging a disability onset date of February 2009; and (5) the pending SSI application
and a contemporaneous Title II application for disability insurance benefits (DIB) but technically
denied on the grounds that Plaintiff did not have enough earnings to meet the disability insured status
requirements. The first set were not pursued after an initial denial; the second set were denied after
a hearing and not pursued further; the Title II application in the third set was denied because Plaintiff
did not meet the disability insured status requirements and the Title XVI application was denied
because Plaintiff failed to appear for a hearing; the Title II application in the fourth set was denied
on res judicata grounds and the Title XVI claim was denied for lack of evidence. (Id. at 13.)
15

- 25 -

The ALJ next found that Plaintiff had a combination of impairments that were severe:
"a longstanding history of marijuana and alcohol dependence disorders"; an affective disorder,
variably diagnosed as a major depressive disorder, major depression, a mood disorder, not
otherwise specified, depression, schizoaffective disorder or schizotypal personality disorder;
a history of an anxiety-related disorder, variably diagnosed as PTSD or generalized anxiety
disorder; and a history of seizures, attributable primarily to episodes of alcohol withdrawal
or, once, to a new medication. (Id. at 14.) These impairments satisfied the criteria of Listing
12.09 (substance addiction disorders) as evaluated under the criteria of Listing 12.04
(depression). (Id.) Absent the limitations and restrictions caused by Plaintiff's use of illicit
drugs and alcohol, Plaintiff did not have an impairment or combination of impairments that
met or medically equaled an impairment of listing-level severity. (Id.)
In explaining this conclusion, the ALJ reviewed the medical evidence and gave great
weight to the opinion of Dr. Markway at step three of the sequential evaluation process, see
pages 23 to 24, supra, about the effect of Plaintiff's substance abuse on his mental impairments
and symptoms, noting that she was a licensed psychologist, she was familiar with the Listings
and with the role of substance abuse in the disability evaluation process, and her opinion was
consistent with the medical treatment notes and other medical records. (Id. at 15.) The ALJ
found that Plaintiff's marijuana and alcohol abuse resulted in moderate restrictions in activities
of daily living; marked difficulties in social functioning; and marked difficulties in
maintaining concentration, persistence, or pace. (Id.) Because of his abuse, Plaintiff had also

- 26 -

"experienced multiple recurrent episodes of mental decompensation . . . , but no repeated
episodes of decompensation." (Id.) Accordingly, he satisfied he criteria of Listing 12.04.
The ALJ further noted that, as found by Dr. Markway, the medical record reflected that
Plaintiff's mental functioning "greatly and rapidly improved with detoxification from alcohol
and/or marijuana and abstinence from intoxicating substances." (Id. at 16.) Absent the
limitations and restrictions caused by Plaintiff's substance abuse, he had mild restrictions in
his activities of daily living, moderate difficulties in maintaining social functioning, and
moderate difficulties in maintaining concentration, persistence, or pace. (Id.) He did not have
any repeated episodes of decompensation of extended duration. (Id.)
Addressing Plaintiff's seizures, the ALJ noted that diagnostic imaging studies revealed
no abnormalities and that other tests and examinations failed to establish an epileptiform
disorder or of any seizure disorder outlined in the listings. (Id. at 16-17.) Moreover, the
introduction to Listing 11.00 specifically directs that the severity of a seizure disorder may not
be satisfied secondary to substance abuse or non-compliance with medications. (Id. at 17.)
The ALJ then determined that, absent the substance abuse, Plaintiff had the residual
functional capacity (RFC) to perform the full range of work at all exertional levels but with
nonexertional limitations of (a) understanding, remembering, and carrying out simple work
instructions or tasks; (b) having no more than occasional contact with the general public; (c)
not being exposed to unprotected heights or dangerous machinery; and (d) not using
motorized driving equipment as a primary job duty. (Id.) He could have up to frequent
contact with coworkers and supervisors. (Id.)
- 27 -

In making this determination, the ALJ evaluated Plaintiff's credibility. (Id. at 17-33.)
He found that there was no evidence supporting Plaintiff's claim of debilitating back pain. (Id.
at 17-18.) Plaintiff's claim of multiple personalities was not supported by a related diagnosis,
was not supported by the medical evidence, and was doubted by the mental healthcare
specialists. (Id. at 18.) The ALJ found that this claim suggested "a proclivity for willful
misrepresentation." (Id.) Plaintiff's claims that his impairments adversely affected his abilities
to follow instructions, complete tasks, remember, concentrate, and get along with others was
contradicted by his other statements in the record. (Id. at 19.) The ALJ next detailed the
various inconsistencies in Plaintiff's reports of when he stopped drinking alcohol, finding that
these inconsistencies also reflected a proclivity for willful misrepresentation. (Id. at 20-22,
24.) He noted that Plaintiff had little treatment in late 2009 and 2010. (Id. at 23-25.) Other
inconsistencies included Plaintiff's varying reports of auditory or visual hallucinations; his
report of social paranoia and use of dating sites and having multiple girlfriends; his request
to resume taking Celexa and his delay in doing so; his report to Dr. Conley that he had been
out of his medications for a week and his report to a Burrell provider the next week that he
had been out of his medications for four months; his report of hallucinations to Dr. Crawford
followed by his specific denials of such; his claimed desire to regain custody of his children
and his failure to participate in the substance abuse treatment programs required for him to do
so. (Id. at 26, 27-29.) The record reflected Plaintiff's consistent non-compliance with his
medications. (Id. at 27.) The ALJ considered that the reference to the court waiting to pursue

- 28 -

Plaintiff for back-owed child support until he received disability might provide Plaintiff a
financial motivation to willfully misrepresent his condition. (Id.)
Addressing Dr. Das' assessment of Plaintiff's mental limitations, the ALJ found it to
be internally inconsistent and inconsistent with the medical record, including Dr. Das' own
treatment notes. (Id. at 31-32.) For instance, Dr. Das opined that Plaintiff had a poor or no
ability to follow work rules, use judgment, or deal with work stresses, but also that he had a
fair ability to understand, remember, and carry out simple or detailed job instructions. (Id.)
He opined that Plaintiff had a poor or no ability to relate predictably in social situations, but
did not reconcile that conclusion with Plaintiff's involvement with online dating and several
girlfriends. (Id. at 32.)
Without the limitations and restrictions caused by his substance abuse, Plaintiff had the
RFC to perform his past relevant work as a small parts assembler as that job is performed in
the national economy. (Id. at 33.) With his age, GED, and RFC absent the limitations caused
by his substance abuse, Plaintiff also could preform the jobs outlined by the VE. (Id. at 3334.) Absent his substance abuse, Plaintiff would not, therefore be disabled. (Id. at 35.)
Standards of Review
Under the Act, the Commissioner shall find a person disabled if the claimant is "unable
to engage in any substantial activity by reason of any medically determinable physical or
mental impairment," which must last for a continuous period of at least twelve months or be
expected to result in death.

42 U.S.C. §§ 423(d)(1), 1382c(a)(3)(A).

Not only the

impairment, but the inability to work caused by the impairment must last, or be expected to
- 29 -

last, not less than twelve months. Barnhart v. Walton, 535 U.S. 212, 217-18 (2002).
Additionally, the impairment suffered must be "of such severity that [the claimant] is not only
unable to do his previous work, but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national
economy, regardless of whether . . . a specific job vacancy exists for him, or whether he would
be hired if he applied for work." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
"The Commissioner has established a five-step 'sequential evaluation process' for
determining whether an individual is disabled.'" Phillips v. Colvin, 721 F.3d 623, 625 (8th
Cir. 2013) (quoting Cuthrell v. Astrue, 702 F.3d 1114, 1116 (8th Cir. 2013) (citing 20 C.F.R.
§§ 404.1520(a) and § 416.920 (a)). "Each step in the disability determination entails a
separate analysis and legal standard." Lacroix v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir.
2006). First, the claimant cannot be presently engaged in "substantial gainful activity." See
20 C.F.R. §§ 404.1520(b), 416.920(b); Hurd, 621 F.3d at 738. Second, the claimant must
have a severe impairment. See 20 C.F.R. §§ 404.1520(c), 416.920(c). A"severe impairment"
is "any impairment or combination of impairments which significantly limits [claimant's]
physical or mental ability to do basic work activities . . . ." Id.
At the third step in the sequential evaluation process, the ALJ must determine whether
the claimant has a severe impairment which meets or equals one of the impairments listed in
the regulations and whether such impairment meets the twelve-month durational requirement.
See 20 C.F.R. §§ 404.1520(d), 416.920(d) and Part 404, Subpart P, Appendix 1. If the
claimant meets these requirements, he is presumed to be disabled and is entitled to benefits.
- 30 -

Bowen v. City of New York, 476 U.S. 467, 471 (1986); Warren v. Shalala, 29 F.3d 1287,
1290 (8th Cir. 1994).
"Prior to step four, the ALJ must assess the claimant's [RFC], which is the most a
claimant can do despite [his] limitations." Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.
2009). "[A]n RFC determination must be based on a claimant's ability 'to perform the
requisite physical acts day in and day out, in the sometimes competitive and stressful
conditions in which real people work in the real world.'" McCoy v. Astrue, 648 F.3d 605,
617 (8th Cir. 2011) (quoting Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007)).
Moreover, "'a claimant's RFC [is] based on all relevant evidence, including the medical
records, observations of treating physicians and others, and an individual's own description
of his limitations.'" Moore, 572 F.3d at 523 (quoting Lacroix, 465 F.3d at 887); accord
Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011).
"'Before determining a claimant's RFC, the ALJ first must evaluate the claimant's
credibility.'" Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007) (quoting Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002)). This evaluation requires the ALJ consider
"'[1] the claimant's daily activities; [2] the duration, frequency and intensity of the pain; [3]
precipitating and aggravating factors; [4] dosage, effectiveness and side effects of medication;
[5] functional restrictions.'" Id. (quoting Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984)). "'The credibility of a claimant's subjective testimony is primarily for the ALJ to
decide, not the courts.'" Id. (quoting Pearsall, 274 F.3d at 1218). After considering the
Polaski factors, the ALJ must make express credibility determinations and set forth the
- 31 -

inconsistencies in the record which caused the ALJ to reject the claimant's complaints. Ford
v. Astrue, 518 F.3d 979, 982 (8th Cir. 2008); Singh v. Apfel, 222 F.3d 448, 452 (8th Cir.
2000).
At step four, the ALJ determines whether claimant can return to his past relevant work,
"review[ing] [the claimant's] [RFC] and the physical and mental demands of the work
[claimant has] done in the past." 20 C.F.R. §§ 404.1520(e), 416.920(e). "An ALJ may find
the claimant able to perform past relevant work if the claimant retains the ability to perform
the functional requirements of the job as []he actually performed it or as generally required
by employers in the national economy." Samons v. Astrue, 497 F.3d 813, 821 (8th Cir.
2007). "At this step the ALJ may use a VE to assist him in making that decision by providing
expert advice." Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006). The burden at step
four remains with the claimant to prove his RFC and establish he cannot return to his past
relevant work. Moore, 572 F.3d at 523.
If the ALJ holds at step four of the process that a claimant cannot return to past relevant
work, the burden shifts at step five to the Commissioner to establish the claimant maintains
the RFC to perform a significant number of jobs within the national economy. Pate-Fires v.
Astrue, 564 F.3d 935, 942 (8th Cir. 2009); Banks v. Massanari, 258 F.3d 820, 824 (8th Cir.
2001).
If the claimant is prevented by his impairment from doing any other work, the ALJ will
find the claimant to be disabled.

- 32 -

The ALJ's decision whether a person is disabled under the standards set forth above is
conclusive upon this Court "'if it is supported by substantial evidence on the record as a
whole.'" Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (quoting Finch v. Astrue, 547
F.3d 933, 935 (8th Cir. 2008)); accord Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir.
2001). "'Substantial evidence is relevant evidence that a reasonable mind would accept as
adequate to support the Commissioner's conclusion.'" Partee, 638 F.3d at 863 (quoting Goff
v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). When reviewing the record to determine
whether the Commissioner's decision is supported by substantial evidence, however, the Court
must consider evidence that supports the decision and evidence that fairly detracts from that
decision. Moore, 623 F.3d at 602; Jones, 619 F.3d at 968; Finch, 547 F.3d at 935. The Court
may not reverse that decision merely because substantial evidence would also support an
opposite conclusion, Dunahoo, 241 F.3d at 1037, or it might have "come to a different
conclusion," Wiese, 552 F.3d at 730.
Discussion
Plaintiff argues that the ALJ erred when accepting the assessment of Dr. Markway and
rejecting that of Dr. Das.16 The Commissioner counters that the ALJ's determination that

Plaintiff also argues that the ALJ erred by finding his employment from May 1999 to June
2000 with Archer Tool Company was substantial gainful activity. Substantial gainful activity is
presumed if the claimant's average earnings are greater than a set amount. See Comstock v.Chater,
91 F.3d 1143, 1145 (8th Cir. 1996); 20 C.F.R. § 416.974(a)(1). Earnings that ordinarily show a
claimant is engaged in substantial gainful activity were $700 per month in 1999 and also in 2000.
Substantial Gainful Activity, http://www.ssa.gov/oact/cola/sga.html (last visited Jan. 28, 2015).
Plaintiff worked for Archer for thirteen months for a total of $7,393 and an average monthly salary
of $568.69. Thus, Plaintiff's work with Archer was not substantial gainful activity. Consequently,
that work is not past relevant work. 20 C.F.R. § 416.920(b)(1). This error does not, however, require
16

- 33 -

Plaintiff would not be disabled but for his substance abuse is supported by substantial evidence
on the record as a whole.
Title 42 U.S.C. § 1382c(a)(3)(J) provides that "[a]n individual shall not be considered
to be disabled for purposes of [SSI] if alcoholism or drug addiction would . . . be a
contributing factor material to the Commissioner's determination that the individual is
disabled." "In the case of alcoholism and drug addiction, an ALJ must first determine if a
claimant's symptoms, regardless of cause, constitute disability." Kluesner v. Astrue, 607 F.3d
533, 537 (8th Cir. 2010). "If the ALJ finds a disability and evidence of substance abuse, the
next step is to determine whether those disabilities would exist in the absence of substance
abuse." Id. The relevant question is not only if the claimant's substance abuse was in
remission at the time of the hearing, but is whether it was active during much of the relevant
period. Id. at 538; Vester v. Barnhart, 416 F.3d 886, 890 (8th Cir. 2005). "The claimant has
the burden to prove that alcoholism or drug addiction is not a contributing factor." Kluesner,
607 F.3d at 537. The claimant meets this burden if the ALJ "'is unable to determine whether
substance abuse disorders are a contributing factor to the claimant's otherwise-acknowledged
disability . . . ." Id. (quoting Brueggerman v. Barnhart, 348 F.3d 689, 693 (8th Cir. 2003)).
In the instant case, the ALJ determined that Plaintiff's affective disorder, history of an
anxiety-related disorder, and history of seizures satisfied Listing 12.09 as evaluated under the
criteria of Listing 12.04. Listing 12.09, substance addiction disorders, is applicable when

that the Commissioner's decision be reversed because the ALJ also relied on unchallenged testimony
by the VE outlining jobs that Plaintiff can perform with his RFC.
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there are "[b]ehavioral changes or physical changes associated with the regular use of
substances that affect the central nervous system." 20 C.F.R. Pt. 404, Subpt. P, App.1,
§ 12.09. The required level of severity for the disorders is met when the requirements of one
of nine listed disorders are met, including Listing 12.04 for affective disorders. See Id. See
also Pettit v. Apfel, 218 F.3d 901, 902 (8th Cir. 2000) (noting that an ALJ must find that a
claimant met the requirements of at least one of a number of other specified listings, including
Listing 12.04, to meet the requirements of Listing 12.09). Listing 12.04 requires, as relevant,
"persistence, either continuous or intermittent," of "[d]epressive syndrome characterized by
at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions, or paranoid thinking."
20 C.F.R. Pt. 404, Subpt. P. App.1, § 1204. These symptoms must result in at least two of the
following: (1) "[m]arked restriction of activities of daily living"; (2) "[m]arked difficulties in
maintaining social functioning"; (3) "[m]arked difficulties in maintaining concentration,
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persistence, or pace"; or (4) "[r]epeated episodes of decompensation, each of extended
duration." Id.
The ALJ's determination that Plaintiff satisfied the criteria of Listing 12.04 is not
challenged by either party. What is challenged is whether the ALJ erred in finding, as did Dr.
Markway, that absent Plaintiff's substance abuse he would not do so. Citing Dr. Das'
assessment and Social Security Ruling 06-3p, Plaintiff argues the ALJ did err.
The introductory paragraph to Social Security Ruling 06-3p explains that "all of the
available evidence in the individual's case record" will be considered during the disability
determination. Social Security Ruling 06-3p, 2006 WL 2329939, *1 (S.S.A. Aug. 9, 2006).
"This includes, but is not limited to, objective medical evidence; other evidence from medical
sources, including their opinions; . . . and decisions by other governmental and
nongovernmental agencies about whether an individual is disabled or blind." Id. When
weighing medical opinions from treating sources, e.g., Dr. Das, nontreating sources, and
nonexamining sources, e.g., Dr. Markway, the following are the factors to be considered:
• The examining relationship between the individual and the "acceptable
medical source";
• The treatment relationship between the individual and a treating source,
including its length, nature, and extent as well as frequency of examination;
• The degree to which the "acceptable medical source" presents an explanation
and relevant evidence to support an opinion, particularly medical signs and
laboratory findings;
• How consistent the medical opinion is with the record as a whole;

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• Whether the opinion is from an "acceptable medical source" who is a specialist
and is about medical issues related to his or her area of specialty; and
• Any other factors brought to our attention, or of which we are aware, which
tend to support or contradict the opinion. For example, the amount of
understanding of our disability programs and their evidentiary requirements that
an "acceptable medical source" has, regardless of the source of that
understanding, and the extent to which an "acceptable medical source" is
familiar with the other information in the case record, are all relevant factors
that we will consider in deciding the weight to give to a medical opinion.
Id. at *2-3. This Ruling further requires that "[e]ach case . . . be adjudicated on its own merits
based on a consideration of the probative value of the opinions and a weighing of all the
evidence in that particular case." Id. at *5. Thus, "depending on the particular facts in a case,"
the opinion of a nonexamining source may outweigh the opinion of a treating source. Id.
When an ALJ decides thus, he must explain his reasons. Id. at *6. See Willcockson v.
Astrue, 540 F.3d 878, 880 (8th Cir. 2008) (ALJ erred in not explaining the weight given to
the assessment of nonexamining state medical consultant as such explanation would have
complied with regulation and assisted in review of adverse decision).
Contrary to Plaintiff's position, consideration of the factors listed in Social Security
Ruling 06-3p do not mandate a reversal of the ALJ's decision for the reasons set forth below.
The first two factors – the examining and treatment relationships – do favor Plaintiff's
argument. Dr. Das had treated Plaintiff two times, once in July 2012 and once in September
2012, before completing his assessment. Dr. Markway never saw Plaintiff.
The third factor – the explanation given by the "acceptable medical source," i.e., Dr.
Das, and the evidence supporting his opinion – does not favor Plaintiff's argument. When first

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examined by Dr. Das, in July 2012, Plaintiff attributed problems he was having with sleeping
and confusion to medication side effects. On examination, he was cooperative and had good
eye contact, normal speech, a euthymic mood and congruent affect, linear and goal-directed
thought processes, intact memory, and fair insight and judgment. Dr. Das diagnosed Plaintiff
with, inter alia, alcohol and marijuana dependence in sustained full remission. When Dr. Das
next, and last, saw Plaintiff, Plaintiff complained of continuing sleeping problems but was as
before on examination. His diagnoses were unchanged. Thus, the examination findings and
diagnosis are consistent with Dr. Markway's assessment that Plaintiff would not have marked
difficulties in functioning were he to stop drinking.
Moreover, Dr. Das' explanation for his December 2012 assessment is wanting. Having
found at his two examinations of Plaintiff that he had fair insight and judgment, three months
after the last of the two he assessed Plaintiff as having poor judgment. He assessed Plaintiff
as having a fair ability to understand, remember, and carry out simple or detailed work
instructions, but also concluded that he had a poor ability to follow work rules. He assessed
Plaintiff as having a fair ability to interact with co-workers, the public, and supervisors, but
concluded that "social interaction may make [it] difficult [for him] to work." (R. at 436;
emphasis added.) See Turbin v. Colvin, 750 F.3d 989, 994 (8th Cir. 2014) ("A treating
physician's opinion is not automatically controlling and may be discredited when other medical
opinions are supported by better medical evidence or when the physician gives inconsistent
opinions.").

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The fourth factor – the consistency of the medical opinion with the record as a whole
– lends weight to Dr. Markway's opinion and not to Dr. Das'. The record is replete with
references to Plaintiff's alcoholism and, to a lesser extent, his drug use. He is consistently
diagnosed with alcohol-related conditions. His reports to health care providers of when, and
if, he stopped drinking vary. During the period when he is clearly drinking, his truthfulness
is questioned more than once. The record also supports a conclusion that Plaintiff stopped
drinking at some point after his amended alleged disability onset date. He thereafter was
described as "doing fairly well" or "doing well." He was much less depressed; and, at times,
what depression there was was attributable to specific situations, e.g., his mother's financial
difficulties or his court case for back-owed child support.
The fifth factor – the speciality of the "acceptable medical source" and whether the
opinion is about medical issues related to that speciality – weighs equally in favor of the two
assessments. It weighs in favor of Dr. Das because he is an "acceptable medical source" and
a psychiatrist. His opinion, however, that stress of work and social interaction will make it
difficult for Plaintiff to work is about an issue unrelated to that speciality. Indeed, it is about
an issue that is reserved for the Commissioner. See Ellis v. Barnhart, 392 F.3d 988, 994 (8th
Cir. 2013) ("A medical source opinion that an applicant is . . . 'unable to work' . . . involves
an issue reserved for the Commissioner and therefore is not the type of 'medical opinion' to
which the Commissioner gives controlling weight.").
The sixth, "catch-all," factor favors Dr. Markway's opinion. Dr. Markway is familiar
with the disability program, its evidentiary requirements, and how and when a claimant's
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alcohol or drug abuse is to be considered. Plaintiff argues that Dr. Das' assessment should
control because he has access to Plaintiff's Burrell records, records which establish a
longitudinal picture of Plaintiff's impairments. That picture, however, does not support Dr.
Das' assessment. As discussed above, the assessment conflicts with Dr. Das' own treatment
notes. Two months before Plaintiff first saw him, he saw Ms. Earlywine and was reportedly
doing well. His depression was a three on a ten-point scale. And, he attributed his stress to
a situation, i.e., his mother's financial circumstances. The Burrell record before that also
describes Plaintiff as "doing fairly well." These records are from a period when there is no
indication that Plaintiff was drinking. The records support Dr. Markway's assessment rather
than Dr. Das'. Cf. McCoy, 648 F.3d at 616 (8th Cir. 2011) (rejecting claimant's argument that
the ALJ had erred by not finding he had a stooping limitation as found by nonexamining
consulting physician when that physician did not have access to the records of claimant's
treating physician who found no significant postural limitations).
In his 27-page decision, the ALJ detailed the record, considered the relevant factors,
and determined that Plaintiff was not disabled when not abusing alcohol or drugs. In other
words, "the ALJ exhaustively reviewed the record medical evidence and made factual findings
regarding this evidence. '[T]here is no indication that the ALJ felt unable to make the
assessment he did . . . .'" Martise v. Astrue, 641 F.3 909, 927 (8th Cir. 2011) (quoting Tellez
v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005)) (first alteration in original). "Ultimately, the
claimant bears the burden of proving disability and providing medical evidence as to the

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existence and severity of an impairment." Kamann v. Colvin, 721 F.3d 945, 950 (8th Cir.
2013). For the reasons set forth above, Plaintiff has failed to carry this burden.
Conclusion
Considering all the evidence in the record, the Court finds that there is substantial
evidence to support the ALJ's decision. "If substantial evidence supports the ALJ's decision,
[the Court] [should] not reverse the decision merely because substantial evidence would have
also supported a contrary outcome, or because [the Court] would have decided differently."
Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010). Therefore,
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED and
this case is DISMISSED.

An appropriate Order of Dismissal shall accompany this

Memorandum and Order.

/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 2nd day of February, 2015.

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