Hinch v. Astrue

Filing 26

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Acting Commissioner of Social Security Carolyn W. Colvin is substituted for former Commissioner Michael J. Astrue as defendant in this cause. IT IS FURTHER ORDERED that that the decision o f the Commissioner is AFFIRMED and plaintiff's Complaint is dismissed with prejudice. Judgment shall be entered accordingly. Carolyn W. Colvin added. Michael J. Astrue (Commissioner of Social Security) terminated. Signed by Magistrate Judge Frederick R. Buckles on 9/10/2013. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID E. HINCH,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,1
Defendant.

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No. 4:12CV419 FRB

MEMORANDUM AND ORDER
This cause is before the Court on plaintiff’s appeal of
an adverse decision by the Social Security Administration.

All

matters are pending before the undersigned United States Magistrate
Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c).
I.

Procedural History

On April 2, 2007, plaintiff David E. Hinch filed an
application for Disability Insurance Benefits pursuant to Title II
of the Social Security Act, 42 U.S.C. §§ 401, et seq., and an
application for Supplemental Security Income (SSI) pursuant to
Title XVI of the Act, 42 U.S.C. §§ 1381, et seq., in which he
claimed he became disabled on February 26, 2006.
consideration,

the

Social

Security

plaintiff’s claims for benefits.

1

On initial

Administration

(Tr. 107, 108.)

denied

On March 26,

On February 14, 2013, Carolyn W. Colvin became the Acting
Commissioner of Social Security. Pursuant to Fed. R. Civ. P.
25(d), Carolyn W. Colvin is therefore automatically substituted
for former Commissioner Michael J. Astrue as defendant in this
cause of action.

2009, after a hearing before an Administrative Law Judge (ALJ) at
which plaintiff and a vocational expert testified, plaintiff was
awarded benefits with a finding that he had been under a disability
since April 2, 2007.
Appeals

Council

(Tr. 113-25.)

remanded

the

On August 12, 2009, the

matter

back

to

the

ALJ

with

instruction to obtain additional evidence concerning plaintiff’s
impairments, to obtain evidence from a medical expert regarding
plaintiff’s mental impairments and resolve inconsistencies in the
evidence involving such impairments, to give further consideration
to plaintiff’s maximum residual functional capacity (RFC) and
provide reasons and reference to the record regarding plaintiff’s
assessed

limitations,

to

obtain

supplemental

evidence

from

vocational expert, and to determine whether alcoholism
contributing factor material to any finding of disability.

a

was a
(Tr.

126-29.)
Upon remand, an additional hearing was held before the
ALJ on October 21, 2009, at which plaintiff and vocational and
medical experts testified.

(Tr. 27-68.)

On May 12, 2010, the ALJ

entered a decision denying plaintiff’s claims for benefits, finding
that if plaintiff ceased his substance abuse, he would have the RFC
to perform other work as it exists in significant numbers in the
national economy.
Council

denied

decision.

(Tr. 7-22.)

plaintiff’s

(Tr. 1-6.)

On January 3, 2012, the Appeals

request

for

review

of

the

ALJ’s

The ALJ’s decision is thus the final

-2-

decision of the Commissioner.

42 U.S.C. § 405(g).

In the instant appeal for judicial review, plaintiff
claims that the Commissioner’s final decision is not supported by
substantial evidence on the record as a whole.

Specifically,

plaintiff contends that the ALJ erred in his RFC determination
inasmuch as he failed to consider additional limitations caused by
plaintiff’s mental impairment, and specifically his inability to be
around people.

Plaintiff also claims that the ALJ’s conclusions

regarding the effects of plaintiff’s alleged alcohol abuse are not
supported by the record.

Finally, plaintiff claims that the ALJ

erred in determining his credibility inasmuch as the ALJ failed to
sufficiently address the factors to be considered in assessing a
claimant’s credibility. Plaintiff requests that the Commissioner’s
decision be reversed and that benefits be awarded, or that the
matter be remanded to the Commissioner for further proceedings.
Upon consideration of plaintiff’s claims and a review of
the entire record, the undersigned finds there to be substantial
evidence on the record as a whole to support the ALJ’s decision.2
The Commissioner’s decision should therefore be affirmed.

2

Plaintiff raises no claim with respect to the ALJ’s
analysis and/or conclusions regarding his physical impairments,
but instead challenges the ALJ’s decision only as it relates to
the effects of plaintiff’s mental impairments and alleged
substance abuse. Although the undersigned has reviewed the
record as a whole, the summary of evidence included in this
Memorandum and Order contains only that evidence relevant to
plaintiff’s claims.
-3-

II.
A.

Relevant Testimonial Evidence Before the ALJ

Hearing Held July 7, 2008
At the hearing on July 7, 2008, plaintiff testified in

response to questions posed by counsel and the ALJ.
At the time of the hearing, plaintiff was forty-one years
of age.

Plaintiff is divorced and has two fifteen-year old

children.

Plaintiff testified that he is homeless and sometimes

stays with cousins.

Plaintiff receives food stamps and has no

medical insurance.

Plaintiff graduated from high school

attended college for two years where he studied physics.

and

(Tr. 75-

77.)
Plaintiff testified that he last worked in February 2006
as a general contractor building roads, remodeling kitchens, etc.
Plaintiff testified that he was involved in an automobile accident
which caused him to stay in the hospital for four or five weeks,
and that he did not return to work after that time.

(Tr. 78-79.)

Plaintiff testified that his motor skills have declined and that he
has memory problems because of the accident.

Plaintiff testified

that he cannot remember anything longer than fifteen minutes. (Tr.
81.)
Plaintiff testified that he has a crack in his lower
spine as result of the February 2006 accident and that he takes
Hydroxyzine for pain.

Plaintiff testified that he also takes

Hydrocodone, Pamonte, Naproxen, and Tramadol for pain.

-4-

(Tr. 89-

91.)

Plaintiff testified that his pain medications cause him to

feel lethargic.

Plaintiff testified that his back pain is at a

level ten on a scale of one to ten.

(Tr. 91-92.)

Plaintiff

testified that he can stand, lie down, or sit for only fifteen
minutes at a time because of his back pain.
testified

that

he

has

difficulty

(Tr. 84.)

climbing

Plaintiff

stairs,

bending,

stooping, and crouching. Plaintiff testified that can lift “hardly
anything.”

(Tr. 95.)
Plaintiff testified that he also suffers from depression,

bipolar

disorder,

anxiety,

and

panic

attacks

and

experiences four or five panic attacks every week.

that

he

Plaintiff

testified that he has difficulty with concentration and cannot
concentrate on one thing for longer than two minutes.

Plaintiff

testified that he was incarcerated from October 2007 to March 2008
and

that

psychiatric

treatment

received

during

this

including medication, helped his mental condition.
testified

that

he

experiences

crying

spells

period,

Plaintiff

without

such

medication. Plaintiff also testified that he currently experiences
mood swings and has problems with his temper.

Plaintiff testified

that he has an upcoming appointment with a psychiatrist.

(Tr. 92-

96.)
As to his daily activities, plaintiff testified that he
eats breakfast in the morning.

Plaintiff testified that he likes

to read and watches some television.

-5-

Plaintiff testified that he

has to reread many of his books because of his memory problems.
Plaintiff testified that he cannot do chores.

Plaintiff testified

that he no longer cooks because he has forgotten to turn off the
stove on numerous occasions.

Plaintiff testified that he can do

dishes but cannot do laundry, vacuum, sweep, or change sheets
because the movement causes pain in his back.
that he does not shop.

Plaintiff testified

Plaintiff testified that he is not sociable

but has a couple of friends.

Plaintiff testified that he has no

hobbies and belongs to no clubs or organizations.

(Tr. 84-87.)

Plaintiff testified that his driver’s license had expired and that
he has not driven since his accident in February 2006.

(Tr. 76.)

Plaintiff testified that he used to abuse alcohol but
that he had stopped drinking the previous August.

Plaintiff

testified that he had used marijuana, cocaine and ecstacy while in
college but that he had not used such substances since 1987.

(Tr.

88-89.)
B.

Hearing Held October 21, 2009
At the hearing held on October 21, 2009, plaintiff

testified in response to questions posed by the ALJ and counsel.
At the time of the hearing, plaintiff was forty-three
years of age.
mother.

Plaintiff lives in a two-story house with his

(Tr. 32.)
Plaintiff testified that

he gets up in the morning

between 6:30 and 7:00 a.m. and washes up, eats breakfast, and then

-6-

reads or watches television. Plaintiff testified that he makes his
own breakfast. Plaintiff testified that he can cook and do laundry
but that his mother usually performs such chores.

Plaintiff

testified that he does the dishes and can make his bed, sweep, mop,
and vacuum.

Plaintiff testified that he does not shop because he

cannot be around people. Plaintiff testified that he no longer has
friends.

(Tr. 35-37.)

Plaintiff testified that he leaves the

house only for his doctor’s appointments.

(Tr. 49.)

As to his alcohol use, plaintiff testified that he has
not had a drink for twenty-six months.

(Tr. 39.)

Plaintiff testified that he takes Seroquel for sleep and
Naproxen and Tramadol for pain.

Plaintiff testified that he also

takes antidepressant medication. (Tr. 41-42.) Plaintiff testified
that his medication makes him lethargic and forgetful.

(Tr. 44.)

Plaintiff testified that he continues to have crying spells three
or four times a week, and that he has panic attacks every other
day.

Plaintiff testified that his medication helps but only

somewhat.

Plaintiff testified that he began seeing a psychiatrist

six or seven months prior and visits him once a month.

(Tr. 45.)

Plaintiff testified that he visited Hopewell Center for about a
year

before

being

referred

to

his

psychiatrist.

(Tr.

51.)

Plaintiff testified that he receives electroconvulsive therapy
(ECT) once a week at his doctor’s direction.

(Tr. 46.)

Plaintiff testified that he hears voices that tell him to

-7-

watch out for everyone and that everyone is out to get him.
46-47.)

(Tr.

Plaintiff testified that he has heard such voices during

the previous year and a half, and heard them prior to his accident.
Plaintiff testified that he continues to have poor concentration
and that his memory is worsening.

(Tr. 47-49.)

As to his exertional abilities, plaintiff testified that
he has no problems sitting, standing or walking and that he can
lift approximately twenty pounds.

Plaintiff testified that he

cannot bend because of back problems, but he can climb steps.

(Tr.

47-48.)
III.

Relevant Medical Evidence Before the ALJ

Plaintiff was admitted to the emergency room at St. Louis
University Hospital on February 26, 2006, after being involved in
a motor vehicle accident. Plaintiff was in the intensive care unit
until March 1, 2006.

Plaintiff was noted to follow commands

without complication, but plaintiff demonstrated impulsive and
combative behavior.

Plaintiff was discharged on March 3, 2006, to

SSM rehabilitation.

(Tr. 476-509.)

Upon admission to SSM on March 3, 2006, plaintiff was
diagnosed with late effects of traumatic brain injury with a right
subdural hemorrhage, cognitive impairment, gait abnormality, and
impulsivity.

Plaintiff

reported

depression and alcoholism.
longer going to drink.

that

he

had

a

history

of

Plaintiff reported that he was no

Plaintiff’s memory deficit and impulsivity

-8-

were evident.

Plaintiff was discharged on March 15, 2006, in good

condition with a note that he had made fast progress.
discharge medications were Naprosyn and Claritin D.
While

incarcerated,

plaintiff

Plaintiff’s

(Tr. 510-48.)

visited

Corrections

Medicine on December 28, 2006, with complaints of back pain.
Plaintiff also reported having problems with his memory. As to his
social history, plaintiff reported that he drank twelve beers a
week.

Mental status examination was unremarkable.

(Tr. 572-73.)

Plaintiff visited Corrections Medicine on January 24,
2007, and reported that he has had difficulties with his memory
since

suffering

a

head

injury

the

previous

year.

Plaintiff

reported that he reads the same page multiple times because of his
memory problems. Mental status examination was unremarkable. (Tr.
570-71.)
On February 22, 2007, plaintiff was seen in Corrections
Medicine with complaints of a toothache. Mental status examination
was unremarkable.
caries.

Plaintiff was provided medication for dental

(Tr. 568-69.)
On June 18, 2007, plaintiff underwent a consultative

psychological evaluation for disability determinations.

Plaintiff

reported, inter alia, that he experienced short term and long term
memory loss and, further, that he had been diagnosed with bipolar
disorder eight years prior.

As to his short term memory loss,

plaintiff reported that he has difficulty with names, telephone

-9-

numbers, and following television programs and that he has had such
difficulty for about six or seven months.

Plaintiff reported that

he had seen someone for depression prior to his accident, but that
he has had no problem with depression since then.

Plaintiff

reported that he last used alcohol the previous day when he drank
three twelve-ounce beers.

Plaintiff reported that he currently

drank once or twice a week but that he used to drink six to twelve
beers daily.

Plaintiff reported receiving no current medical

treatment and that he was not taking any medication.

Mental status

examination showed plaintiff to be cooperative and pleasant, with
good eye contact and an alert expression.

Plaintiff’s mood was

noted to be euthymic and his affect was full.

Plaintiff was noted

to be spontaneous, coherent, relevant, and logical.

Plaintiff

exhibited no deficits with stream of speech and mental activity.
No evidence of thought disturbance was noted.
oriented in all spheres.

Plaintiff was

Plaintiff was able to repeat six digits

forward and could name the current president and mayor.

Plaintiff

could not name the current governor. Plaintiff’s remote memory was
intact.

Plaintiff had good expressed verbal judgment and proverb

interpretation.
difficulty

and

Simple
serial

calculations

threes

were

were

performed

performed

without

without
errors.

Plaintiff’s insight and judgment were noted to be slightly limited.
As to his attention, concentration

and memory, plaintiff was

administered the Trail Making Test on which he scored in the

- 10 -

moderately impaired range for simple focused attention and scanning
ability,

and

in

the

mildly

impaired

range

for

more

attention and ability to rapidly shift mental sets.

complex
On the

Wechsler Memory Scale–III, plaintiff’s scores placed him in the low
average range of ability.

As to his activities of daily living,

plaintiff reported that he takes care of household chores, does not
drive,

and

television.

spends

along

problems.
needs.

time

reading,

walking

and

watching

Plaintiff reported that he continually has to go back

over what he reads.
getting

his

As to social functioning, plaintiff reported

adequately

with

others

and

reported

having

no

Plaintiff reported being able to care for his personal

Dr. L. Lynn Mades opined that plaintiff demonstrated the

ability to maintain adequate attention and concentration, with
appropriate persistence and pace.

Dr. Mades diagnosed plaintiff

with alcohol abuse and assigned a Global Assessment of Functioning
(GAF) score of 75.3

Dr. Mades concluded that plaintiff displayed

no evidence of mood problems despite his report of depression a
couple of years prior.

Dr. Mades noted plaintiff’s history to be

significant for substance abuse with ongoing alcohol use.

3

Dr.

A GAF score considers “psychological, social, and
occupational functioning on a hypothetical continuum of mental
health/illness.” Diagnostic and Statistical Manual of Mental
Disorders, Text Revision 34 (4th ed. 2000). A GAF score of 71-80
indicates transient symptoms and expectable reactions to
psychosocial stressors (e.g., difficulty concentrating after
family argument) or no more than slight impairment in social,
occupational or school functioning (e.g., temporarily falling
behind in schoolwork).
- 11 -

Mades questioned the reliance of plaintiff’s reports regarding his
alcohol use.

Dr. Mades opined that plaintiff’s prognosis was fair

with abstinence from alcohol use.

Dr. Mades opined that plaintiff

appeared incompetent to manage funds due to questions regarding his
current alcohol use.
On

July

(Tr. 593-600.)
2,

2007,

Aine

Kresheck,

a

psychological

consultant with disability determinations, completed a Psychiatric
Review Technique Form in which it was opined that plaintiff’s
cognitive impairment and substance addiction disorder did not
constitute severe impairments.

Consultant Kresheck opined that

plaintiff experienced mild limitations in his activities of daily
living; in maintaining social functioning; and in maintaining
concentration, persistence or pace, with no repeated episodes of
extended periods of decompensation.

(Tr. 601-12.)

While incarcerated on October 30, 2007, plaintiff was
referred for mental health services.

It was noted that plaintiff

had previously been diagnosed with bipolar disorder and was not
taking any medication.

(Tr. 304.)

On November 7, 2007, Mary Hoatlin, LCSW, with Corrections
Medicine,

diagnosed

drinking behavior.

plaintiff

with

(Tr. 286.)

alcohol

abuse,

continuous

On that same date, Ms. Hoatlin

referred plaintiff for psychiatric consultation given plaintiff’s
reports of depression and anger and his expressed desire to receive
treatment therefor. Plaintiff reported that he began using alcohol

- 12 -

when he was eighteen years of age and drank a twelve-pack of beer
daily.

Plaintiff reported that he had never been abstinent from

alcohol but had previously attended rehabilitation.

Plaintiff

reported that he last used alcohol on October 18, 2007, and was
using alcohol at the time of his arrest. Plaintiff’s mental health
problems were noted to include low mood, poor concentration, and
history of treatment for depression.

(Tr. 301-03.)

On November 28, 2007, plaintiff visited Dr. Anna M. Jurec
at Corrections Medicine and reported that he felt depressed, had
crying spells, felt hopeless and helpless, had poor energy, had
disrupted

sleep

patterns,

and

had

difficulties

concentrating.

Plaintiff reported that he had been told previously that he had
bipolar disorder.

Plaintiff reported that alcohol had been a

problem for him and that he had been sober for the past two months.
Dr. Jurec noted plaintiff’s mood to be depressed and his affect
full and congruent. Plaintiff’s insight and judgment were noted to
be fair.

Dr. Jurec diagnosed plaintiff with bipolar disorder and

prescribed Zoloft and Lamictal.

(Tr. 283-84.)

On December 11, 2007, plaintiff complained of back pain
to Corrections Medicine.

Plaintiff admitted to alcohol use and

reported that he drank six to twelve twelve-ounce beers when he
drinks. Mental status examination was unremarkable. Plaintiff was
diagnosed with low back pain, elevated blood pressure reading, and
alcohol abuse with continuous drinking behavior.

- 13 -

Naproxen was

prescribed.

(Tr. 278-80.)

On February 25, 2008, Dr. Fred Rottneck with Corrections
Medicine prescribed Zoloft for plaintiff’s diagnosed condition of
bipolar disorder.
On

(Tr. 334-35.)

February

26,

2008,

Dr.

Alan

R.

Felthous

with

Corrections Medicine prescribed Lamictal for plaintiff’s diagnosed
condition of bipolar disorder.

(Tr. 333.)

On March 13, 2008, Corrections Medicine noted plaintiff’s
medications

to

be

Lamictal,

Zoloft,

Piroxicam,

Mental status examination was unremarkable.
for hypertension and dyspnea.

and

Naproxen.

Plaintiff was treated

(Tr. 330-32.)

On May 30, 2008, plaintiff visited Dr. Gina McCrary-Smith
with complaints of low back pain.

It was noted that plaintiff had

recently been released from prison and ran out of his medications.
It was noted that plaintiff needed a referral for psychotropic
medications.

Tramadol was prescribed.

(Tr. 613-15.)

An intake assessment for Hopewell Center was completed on
July 11, 2008, upon referral by plaintiff’s disability attorney.
It was noted that plaintiff complained of severe depression, mood
swings, fluctuating appetite, and interrupted sleep.

Plaintiff

reported that he had been diagnosed with bipolar disorder when he
was twenty-eight years of age.

(Tr. 638.)

completed

that

Lorna

diagnosis

to

same
be

date

bipolar

by

disorder,

- 14 -

A Medication Profile

Vaughn
type

noted

II,

plaintiff’s

depressed;

and

plaintiff’s
Lamictal.

current

medications

to

be

Zoloft,

Seroquel

and

(Tr. 624-25.)4

Plaintiff’s GAF score was 56.

Plaintiff underwent a psychiatric evaluation at Hopewell
Center on July 14, 2008, and reported that he experienced mood
swings, depression, feelings of hopelessness and helplessness,
impaired

self

esteem,

lack

of

motivation,

Plaintiff also reported that he hears voices.

and

poor

sleep.

Plaintiff reported

that he saw a psychiatrist once a month and took Zoloft and
Lamictal while he was incarcerated from October 2007 to March 2008
and

that

such

treatment

improved

his

condition

dramatically.

Plaintiff reported that he no longer drinks since his accident in
2006 but considered himself an alcoholic before the accident.
Vadim

Baram

Tramadol

noted

and

plaintiff’s

Naproxen.

plaintiff’s

mood

to

Plaintiff’s

thought

be

current

medications

Mental

status

depressed

and

content

was

noted

Dr.

to

include

examination

showed

his

affect

anxious.

to

include

paranoid

delusions. Plaintiff’s insight and judgment were noted to be fair.
Dr. Baram diagnosed plaintiff with bipolar affective disorder, type
I, depressed, with psychotic features; and history of alcohol
abuse.

A GAF score of 56 was assigned.

Dr. Baram prescribed

Zoloft, Lamictal and Seroquel for plaintiff and instructed him to

4

A GAF score of 51 to 60 indicates moderate 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 coworkers).
- 15 -

participate in psychotherapy.

(Tr. 635-37.)

Plaintiff met with his Hopewell case manager, Lorna
Vaughn, on August 15, 2008, who noted plaintiff to be upset about
a family matter, but to calm down while talking.

(Tr. 634.)

Dr.

Baram determined to increase plaintiff’s dosage of Zoloft given
plaintiff’s report of continued anxiousness. (Tr. 630.) On August
18,

2008,

plaintiff

reported

to

his

case

manager

that

the

medication was working because he was spending more time out of his
room.

Plaintiff’s history of drinking and fighting was noted.

(Tr. 633.)

On September 16, 2008, plaintiff reported to his case

manager that his medication was working well.

(Tr. 629.)

Plaintiff expressed a lot of anxiety to his case manager
on October 14, 2008, but reported that he was taking his medication
and remained clean and sober. Plaintiff reported that he felt good
after having celebrated his birthday.

(Tr. 626-27.)

Plaintiff returned to the Hopewell Center on November 6,
2008, and reported that he was having a rough time with anxiety and
could not be around people.

Plaintiff also reported that he

started to hear voices. Plaintiff’s dosages of Zoloft and Seroquel
were increased.

(Tr. 663.)

Plaintiff underwent a consultative evaluation at West
Park

Medical

determinations.

Clinic

on

December

8,

2008,

for

disability

Plaintiff reported his current medications to

include Lamictal, Zoloft and Seroquel as prescribed by the Hopewell

- 16 -

Center.

Plaintiff reported that he suffered from depression, but

Dr. John S. Rabun opined that

plaintiff’s described symptoms

suggested psychosis. Plaintiff reported that he occasionally hears
voices and that he believes people are trying to poison him.
Plaintiff reported that he preferred to be alone and did not trust
anyone.

Plaintiff reported that he previously drank alcohol but

that he had been sober for fourteen months.

Dr. Rabun noted

plaintiff to have a depressed mood and flat affect, exaggerated
startle response, and increased psychomotor activity with rapid
speech.

Mental status examination showed plaintiff to be easily

distracted and border on agitation.

Plaintiff had difficulty

staying on topic. Plaintiff was noted to have occasional flight of
ideas.

Recent and remote memory was normal.

Dr. Rabun opined that

plaintiff’s intellectual capacity was in the low average range,
with preserved insight and judgment. Dr. Rabun diagnosed plaintiff
with schizoaffective disorder–bipolar type and assigned a GAF score
of 40.5

In conclusion, Dr. Rabun opined that plaintiff would show

mild impairments in his capacity to understand, remember and carry
out simple instructions; with moderate difficulty understanding,
remembering and carrying out complex instructions. Dr. Rabun noted

5

A GAF score of 31-40 indicates some impairment in reality
testing or communication (e.g., speech is at times illogical,
obscure, or irrelevant) or major impairment in several areas,
such as work or school, family relations, judgment, thinking, or
mood (e.g., depressed man avoids friends, neglects family, and is
unable to work; child frequently beats up younger children, is
defiant at home, and is failing at school).
- 17 -

plaintiff to primarily have difficulty with social contacts, and
thus would show marked difficulty interacting appropriately in a
social setting and adapting to changes in a work environment.

Dr.

Rabun opined that plaintiff would have no difficulty managing his
own funds.

(Tr. 616-23.)
On January 5, 2009, plaintiff reported to Case Manager

Vaughn

that

he

was

upset

over

threatened to begin drinking.

a

personal

relationship

and

Ms. Vaughn reminded plaintiff of

recent gains and the jeopardy caused by drinking.

(Tr. 664.)

On

January 8, 2009, plaintiff reported to Ms. Vaughn that he was
experiencing

double

vision

and

vomiting

as

side

effects

of

Lamictal. Plaintiff also reported having altered moods. (Tr. 659,
663.)
Plaintiff telephoned Case Manager Vaughn on January 15,
2009, and reported that he was not doing well and was not in
control of his emotions.

Plaintiff reported that he was hearing

voices and that his irritability had increased.

Plaintiff also

reported that he was “decreasing his drinking to 3 tall beers every
other day.”

Ms. Vaughn suggested that plaintiff seek inpatient

treatment for medication adjustment and to dry out.

Ms. Vaughn

reminded plaintiff that drinking and medication work against each
other.

(Tr. 658.)
On January 22, 2009, Ms. Vaughn noted that she had

received five rambling voice messages from plaintiff in which he

- 18 -

sounded impaired.

Upon speaking with plaintiff personally, Ms.

Vaughn noted that plaintiff continued to sound impaired and was in
despair with emotions running high.

Plaintiff was noted to be

angry and crying. Ms. Vaughn noted plaintiff’s current medications
to

include

Naproxen,

Seroquel,
Ranitidine,

Lamictal,
and

Doxepin,

Tramadol.

On

Hydrochlorthiazide,
January

23,

2009,

plaintiff’s girlfriend informed Ms. Vaughn that plaintiff had been
admitted to St. Mary’s and that plaintiff had intoned intent to
harm others.

(Tr. 641-42, 660-61.)

On February 2, 2009, plaintiff telephoned Ms. Vaughn and
informed her that he had been discharged on January 31, 2009.
Vaughn

Ms.

noted plaintiff’s speech to be slurred, and plaintiff

admitted to drinking despite instructions from doctors that he stop
drinking.
656-57.)
2009.

Plaintiff agreed that alcohol made him feel worse.

(Tr.

Plaintiff sounded better and was coherent on February 3,

Abstinence from alcohol and consistency with medication

compliance were discussed.

(Tr. 655.)

Plaintiff visited Ms. Vaughn on February 26, 2009, and
discussed goals for sobriety, independent living, and being a
better parent and person.

(Tr. 652.)

Plaintiff visited Ms. Vaughn on March 2, 2009, for
Substance Assessment but was too inebriated to be assessed.
652.)

(Tr.

Plaintiff reported that he had been drinking since 10:00

a.m. and that he drank nearly a case of beer.

- 19 -

Plaintiff admitted

to being an alcoholic and inpatient treatment was discussed.

(Tr.

650-51.)
On March 6, 2009, plaintiff reported to Ms. Vaughn that
he had not drank in two days.

On March 9, 2009, plaintiff reported

that he continued to be sober, was back on his medication and felt
better.

(Tr. 648-49.)
On April 17, 2009, plaintiff failed to appear for a

scheduled appointment at the Hopewell Center.

(Tr. 647.)

Upon

being contacted, plaintiff admitted to Ms. Vaughn that he had been
drinking and that he was physically sick as a result.

Plaintiff

reported that he takes his medication when he is not drinking.
Plaintiff advised Ms. Vaughn on April 30, 2009, that he admitted
himself to DePaul Health Center for detoxification.

(Tr. 645.)

On June 1, 2009, plaintiff telephoned Ms. Vaughn to
advise

that

he

detoxification.
heavily.

had

been

readmitted

to

the

hospital

for

Plaintiff reported that he had been drinking beer

On June 11, 2009, Ms. Vaughn noted plaintiff to continue

his inpatient treatment, and that plaintiff had received three ECT
treatments.

(Tr. 646.)

On August 31, 2009, plaintiff reported to Ms. Vaughn that
he was currently receiving weekly ECT treatments and visited his
doctor monthly.
and oriented.

Ms. Vaughn noted plaintiff to be clear, coherent
(Tr. 644.)

In response to an interrogatory submitted by the ALJ,

- 20 -

licensed psychologist Karyn B. Perry opined on February 3, 2010,
that, “given the claimant’s continued use of alcohol and the need
for detoxification/treatment services on multiple occasions, the
original testimony is being amended to recommend that alcohol is
material in this case.”
IV.

(Tr. 677-78.)
The ALJ’s Decision

The ALJ determined that plaintiff met the insured status
requirements of the Social Security Act through December 31, 2006.
The ALJ found that plaintiff had not engaged in substantial gainful
activity

since

disability.

February

26,

2006,

the

alleged

onset

date

of

The ALJ determined plaintiff’s degenerative disc

disease, alcohol and drug dependence, bipolar disorder, and late
effects of head trauma to constitute severe impairments, but that
such impairments, either singly or in combination, did not meet or
medically equal any listed impairment in 20 C.F.R, Part 404,
Subpart

P,

App.

1.

The

ALJ

determined

that

plaintiff’s

impairments, including his substance abuse disorder, resulted in an
RFC that permitted plaintiff to perform light work, but with
limitations

that

plaintiff

could

engage

in

only

occasional

stooping, kneeling, crouching, or crawling; that plaintiff could
perform only simple, repetitive work; and that plaintiff could have
only

occasional

contact

with

co-workers,

supervisors

and

the

general public. The ALJ concluded that plaintiff could not perform
his past relevant work or any other work as it existed in the

- 21 -

national economy in significant numbers.
further

determined,

however,

that

if

(Tr. 10-17.)
plaintiff

The ALJ

stopped

his

substance abuse, he would have the RFC to perform light work
“except that the claimant could only occasionally stoop, kneel,
crouch or crawl.

He could have more than occasional contact with

co-workers, supervisors and the general public.”

(Tr. 18.)

The

ALJ determined that, if plaintiff stopped his substance abuse, he
could not perform his past relevant work but had the RFC to perform
other work as it exists in significant numbers in the national
economy, and specifically housekeeper and master-semiconductor.
The ALJ thus determined that, because plaintiff would not be
disabled if he stopped his substance abuse, plaintiff’s substance
abuse disorder was a contributing factor material to a finding of
disability.

In light of plaintiff’s substance abuse being a

contributing factor, the ALJ found that plaintiff could not be
considered disabled and thus was not under a disability since the
alleged onset date through the date of the decision.
V.

(Tr. 19-22.)

Discussion

To be eligible for Social Security Disability Insurance
Benefits and Supplemental Security Income under the Social Security
Act, plaintiff must prove that he is disabled.

Pearsall v.

Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Secretary
of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992).

The

Social Security Act defines disability as the "inability to engage

- 22 -

in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months."
423(d)(1)(A), 1382c(a)(3)(A).

42 U.S.C. §§

An individual will be declared

disabled "only if his physical or mental impairment or impairments
are of such severity that he 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."

42 U.S.C. §§ 423(d)(2)(A),

1382c(a)(3)(B).
To

determine

whether

a

claimant

is

disabled,

Commissioner engages in a five-step evaluation process.

the

See 20

C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42
(1987).

The Commissioner begins by deciding whether the claimant

is engaged in substantial gainful activity.
working, disability benefits are denied.
decides

whether

the

claimant

has

a

If the claimant is

Next, the Commissioner
“severe”

impairment

or

combination of impairments, meaning that which significantly limits
his ability to do basic work activities.
impairment(s)

is

not

severe,

then

he

is

If the claimant's
not

disabled.

The

Commissioner then determines whether claimant's impairment(s) meets
or equals one of the impairments listed in 20 C.F.R., Subpart P,
Appendix 1.

If claimant's impairment(s) is equivalent to one of

- 23 -

the listed impairments, he is conclusively disabled. At the fourth
step, the Commissioner determines the claimant’s RFC and determines
whether the claimant can perform his past relevant work.
the claimant is not disabled.

If so,

If the Commissioner finds that the

claimant cannot do his past relevant work, the Commissioner then
proceeds to the fifth step of the evaluation process whereby he
considers

the

vocational

claimant’s

factors

(age,

RFC,

together

education

and

with
work

the

claimant’s

experience),

and

determines if the claimant can make an adjustment to other work.
If the claimant can make such an adjustment, the claimant is found
not to be disabled.

If the Commissioner finds the claimant unable

to perform such other work, the claimant is determined to be
disabled and becomes entitled to disability benefits.
In 1996, Congress eliminated alcoholism as a basis for
obtaining social security benefits.
F.3d 533, 537 (8th Cir. 2010).

See Kluesner v. Astrue, 607
“An individual shall not be

considered disabled for purposes of this title if alcoholism or
drug addiction would (but for this subparagraph) be a contributing
factor

material

individual

is

to

the

Commissioner's

disabled.”

42

determination

U.S.C.

§§

that

the

423(d)(2)(C),

1382c(a)(3)(J). In such cases, the ALJ must first determine if the
claimant's symptoms, regardless of cause, constitute disability.
Kluesner, 607 F.3d at 537; 20 C.F.R. §§ 404.1535(a), 416.935(a).
If the ALJ finds a disability and evidence of substance abuse, the

- 24 -

next step is to determine whether the disability would exist in the
absence of the substance abuse.

Kluesner, 607 F.3d at 537.

When

a claimant is currently engaged in substance abuse, the ALJ’s
inquiry is necessarily hypothetical and thus more difficult than if
the claimant had stopped.

Id.

The claimant has the burden to prove that his substance
abuse is not a contributing factor.

Kluesner, 607 F.3d at 537;

Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002).
In the instant cause, the ALJ first determined that
plaintiff’s

symptoms

and

resulting

RFC,

based

on

all

of

his

impairments including substance abuse, precluded plaintiff from
performing any work that exists in significant numbers in the
national economy, and thus that plaintiff would be disabled.
16-17.)

(Tr.

The ALJ then determined that if plaintiff stopped the

substance abuse, plaintiff’s remaining symptoms and resulting RFC
would not preclude such work.
without

the

substance

abuse,

The ALJ thus determined that,
plaintiff

would

not

be

under

a

disability. Plaintiff’s claims for benefits were therefore denied.
(Tr. 21-22.)

Plaintiff challenges this determination.

The decision of the Commissioner must be affirmed if it
is supported by substantial evidence on the record as a whole.

42

U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);
Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).

Substantial

evidence is less than a preponderance but enough that a reasonable

- 25 -

person would find it adequate to support the conclusion.
v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).

Johnson

This “substantial

evidence test,” however, is “more than a mere search of the record
for evidence supporting the Commissioner’s findings.”

Coleman v.

Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (internal quotation marks
and citation omitted).

“Substantial evidence on the record as a

whole . . . requires a more scrutinizing analysis.”

Id. (internal

quotation marks and citations omitted).
To

determine

whether

the

Commissioner's

decision

is

supported by substantial evidence on the record as a whole, the
Court must review the entire administrative record and consider:
1.

The credibility findings made by the ALJ.

2.

The plaintiff's vocational factors.

3.

The medical evidence from treating and
consulting physicians.

4.

The plaintiff's subjective complaints
relating to exertional and non-exertional
activities and impairments.

5.

Any corroboration by third parties of the
plaintiff's impairments.

6.

The testimony of vocational experts when
required which is based upon a proper
hypothetical question which sets forth
the claimant's impairment.

Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86
(8th Cir. 1992) (quoting Cruse v. Bowen, 867 F.2d 1183, 1184-85
(8th Cir. 1989)).
The Court must also consider any evidence which fairly detracts
- 26 -

from the Commissioner’s decision.

Coleman, 498 F.3d at 770;

Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999).

However,

even though two inconsistent conclusions may be drawn from the
evidence, the Commissioner's findings may still be supported by
substantial evidence on the record as a whole.

Pearsall, 274 F.3d

at 1217 (citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.
2000)).

“[I]f there is substantial evidence on the record as a

whole, we must affirm the administrative decision, even if the
record could also have supported an opposite decision.” Weikert v.
Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
marks and citation omitted); see also Jones ex rel. Morris v.
Barnhart, 315 F.3d 974, 977 (8th Cir. 2003).
Because the ALJ committed no legal error and the decision
is supported by substantial evidence on the record as a whole, the
decision of the Commissioner finding plaintiff not to be disabled
must be affirmed.
A.

Credibility Determination
When determining a claimant’s RFC, the ALJ must first

evaluate the credibility of the claimant’s subjective complaints.
Nishke v. Astrue, 878 F. Supp. 2d 958, 978 (E.D. Mo. 2012).

When

undergoing such evaluation, the ALJ must consider all evidence
relating to the complaints, including the claimant’s prior work
record and third party observations as to the claimant’s daily
activities; the duration, frequency and intensity of the symptoms;

- 27 -

any

precipitating

and

aggravating

factors;

the

dosage,

effectiveness and side effects of medication; and any functional
restrictions.

Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.

1984 (subsequent history omitted).

Although the ALJ may not

discount subjective complaints on the sole basis

of personal

observation, he may disbelieve a claimant’s complaints if there are
inconsistencies in the evidence as a whole.

The “crucial

Id.

question” is not whether the claimant experiences symptoms, but
whether his credible complaints prevent him from performing work.
Gregg v. Barnhart, 354 F.3d 710, 713-14 (8th Cir. 2003).
The plaintiff here contends that the ALJ improperly
determined plaintiff’s complaints not to be credible by merely
making a summary determination and by failing to analyze the
factors

required

determination.

to

be

considered

in

making

a

credibility

When a plaintiff makes such a challenge, “the duty

of the court is to ascertain whether the ALJ considered all of the
evidence relevant to the plaintiff’s complaints . . . under the
Polaski standards and whether the evidence so contradicts the
plaintiff’s subjective complaints that the ALJ could discount his
or her testimony as not credible.” Masterson v. Barnhart, 363 F.3d
731, 738-39 (8th Cir. 2004).

It is not enough that the record

merely contain inconsistencies. Instead, the ALJ must specifically
demonstrate in his decision that he considered all of the evidence.
Id. at 738; see also Cline v. Sullivan, 939 F.2d 560, 565 (8th Cir.

- 28 -

1991).

Where an ALJ explicitly considers the Polaski factors but

then discredits a claimant’s
decision should be upheld.

complaints for good reason, the

Hogan v. Apfel, 239 F.3d 958, 962 (8th

Cir. 2001); see also Casey v. Astrue, 503 F.3d 687, 696 (8th Cir.
2007).

The determination of a claimant’s credibility is for the

Commissioner, and not the Court, to make.

Tellez v. Barnhart, 403

F.3d 953, 957 (8th Cir. 2005); Pearsall, 274 F.3d at 1218.
Plaintiff’s

claim

that

the

ALJ

made

a

summary

determination as to his credibility and failed to consider the
Polaski factors is without merit.

A review of the ALJ’s decision

shows the ALJ to have discussed the required factors — including
daily activities, the effectiveness of treatment and medication,
precipitating and aggravating factors, functional restrictions, and
the

pattern

of

plaintiff’s

symptoms

—

and

to

have

set

out

inconsistencies in the record to support his conclusion that
plaintiff’s subjective complaints were not credible.

First, the

ALJ noted that despite plaintiff’s testimony that he had not
consumed alcohol since approximately June 2007, the record was
replete with evidence that plaintiff continued to engage in alcohol
abuse, including evidence showing plaintiff to have had three
detoxification admissions since January 2009 and to have appeared
at Hopewell for an assessment in March 2009 too inebriated to
participate.
mental

The ALJ also noted that symptoms of plaintiff’s

impairments

appeared

to

- 29 -

be

controlled

during

his

incarceration when he received regular treatment and abstained from
alcohol,

and

that

psychiatric

symptoms

reappeared

when

his

treatment ceased after being released from prison. See Renstrom v.
Astrue, 680 F.3d 1057, 1066-67 (8th Cir. 2012) (impairment cannot
be considered disabling if it can be controlled with medication);
Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (same).
addition,

the

undersigned

notes

that,

despite

being

In

advised

repeatedly by his case manager to consistently take his medication
and abstain from alcohol, plaintiff did not do so and instead
engaged in drinking behaviors which worsened the effects of his
mental impairments.
Cir.

2010)

See Wildman v. Astrue, 596 F.3d 959, 968 (8th

(noncompliance

with

doctor’s

instruction

to

take

medication and abstain from drugs and alcohol constitutes a valid
reason to discredit subjective complaints).

These reasons for

discrediting plaintiff’s subjective complaints are supported by
substantial evidence on the record as a whole.
A review of the ALJ’s decision shows that, in a manner
consistent with and as required by Polaski, the ALJ considered
plaintiff’s subjective complaints on the basis of the entire record
and

set

out

credibility.

inconsistencies
Because

the

that

ALJ’s

detracted

from

determination

plaintiff’s

not

to

credit

plaintiff’s subjective complaints is supported by good reasons and
substantial

evidence,

this

credibility determination.

Court

must

defer

to

the

Renstrom, 680 F.3d at 1067.

- 30 -

ALJ’s

B.

Determination of Plaintiff’s RFC
Plaintiff

claims

that

the

ALJ

erred

in

determining

plaintiff’s RFC inasmuch as the ALJ failed to include additional
limitations caused by plaintiff’s mental impairments, including his
inability to be around people.

Plaintiff also argues that the ALJ

reached improper conclusions regarding the effects of plaintiff’s
substance abuse without support in the record.
plaintiff’s

claims,

the

undersigned

finds

Upon review of
the

ALJ’s

RFC

determination to be supported by substantial evidence on the record
as a whole.
A claimant’s RFC is what a claimant remains able to do
despite his limitations.

29 C.F.R. §§ 404.1545, 416.945; Dunahoo

v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001).

The ALJ bears the

primary responsibility for assessing a claimant's RFC based on all
relevant evidence, including medical records, the observations of
treating physicians and others, and the claimant's description of
his limitations.

Krogmeier v. Barnhart, 294 F.3d 1019, 1024 (8th

Cir. 2002); Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir.
2001); Dunahoo, 241 F.3d at 1039 (citing Anderson v. Shalala, 51
F.3d 777, 779 (8th Cir. 1995)); see also 20 C.F.R. §§ 404.1545(a),
416.945(a)).
Plaintiff claims that the ALJ’s RFC determination here
failed to account for plaintiff’s marked impairments in social
interaction and that the medical evidence shows plaintiff to have

- 31 -

experienced such severe limitations even when he refrained from
alcohol.

For the following reasons, plaintiff’s claim is without

merit.
A review of the record in its entirety shows plaintiff to
have complained of and suffered from memory deficit subsequent to
the February 2006 accident. Records from plaintiff’s incarceration
in December 2006 and January and February 2007 show plaintiff’s
mental status examinations to have been unremarkable and that
plaintiff’s mental health complaints consisted only of memory
problems. In June 2007, plaintiff reported to consulting physician
Dr. Mades that he had had no problems with depression since his
February 2006 accident, that he got along adequately with others,
and had no problems with social functioning.

Indeed, Dr. Mades

noted plaintiff to be cooperative, pleasant, euthymic, and to
display

no

evidence

of

mood

problems.

While

plaintiff

was

incarcerated in November 2007, he reported symptoms of depression
for which he was provided psychotropic medication.

Upon being

treated with such medication, plaintiff no longer complained of his
depressive

symptoms,

and

mental

status

examinations

were

consistently unremarkable. Indeed, plaintiff himself reported that
the

treatment

dramatically.

he

received

in

prison

improved

his

condition

Upon ceasing his medication after being released

from prison, plaintiff again complained of depressive symptoms for
which he was prescribed psychotropic medication by the Hopewell

- 32 -

Center. Plaintiff subsequently reported that the medication worked
well, that he was spending more time out of his room, and that he
felt good after his birthday.

It was not until November 2008 when

plaintiff reported that he could not be around people, and in
December 2008 when he reported a preference to be alone.
this

December

2008

consultative

examination,

Dr.

During

Rabun

noted

plaintiff’s primary difficulty to be with social contacts and
opined that plaintiff had marked difficulty interacting socially.
As noted by the ALJ, however, a review of the record as a whole
shows that plaintiff was again on the path of abusing alcohol at
the time of this consultative examination.

Indeed, plaintiff

informed his case manager the following month that he planned to
“decrease[] his drinking[.]”

(Tr. 658.)

Thereafter, the record

shows plaintiff’s continual use of alcohol with few, if any,
documented periods of abstinence.

On this record, it cannot be

said that in the absence of alcohol abuse, plaintiff nevertheless
continued to experience such significant social limitations caused
by

his

mental

impairment

such

that

his

mental

RFC

was

more

adversely affected thereby.
It is the duty of the Commissioner to resolve conflicts
in the evidence, including conflicts in medical evidence.

See

Renstrom, 680 F.3d at 1065; Spradling v. Chater, 126 F.3d 1072,
1075 (8th Cir. 1997); Bentley v. Shalala, 52 F.3d 784, 787 (8th
Cir. 1995).

Because substantial evidence on the record as a whole

- 33 -

supports

the

ALJ’s

finding

that

plaintiff

did

not

exhibit

significant psychiatric limitations while abstaining from alcohol
and while taking medication as prescribed, the ALJ did not err in
failing to include in his RFC determination a finding consistent
with marked mental limitations, including marked limitations in
social

functioning.

Where

substantial

evidence

supports

the

Commissioner's decision, the decision may not be reversed merely
because substantial evidence may support a different outcome.
Briggs v. Callahan, 139 F.3d 606, 608 (8th Cir. 1998); Browning v.
Sullivan, 958 F.2d 817, 821 (8th Cir. 1992) (citing Cruse v. Bowen,
867 F.2d 1183, 1184 (8th Cir. 1989)).
For these same reasons, plaintiff’s claim that the record
fails to support the ALJ’s conclusions regarding the effects of
plaintiff’s substance abuse is without merit.

As discussed above,

the record is replete with evidence that during his periods of
abstinence,

plaintiff

exhibited

no

significant

psychiatric

limitations, was compliant with his medications, and obtained the
beneficial effects of his medications.

The record further shows

that plaintiff’s alcohol abuse coincided with an exacerbation of
mental health symptoms, including depressive symptoms, auditory
hallucinations, paranoid delusions, and threatening behavior.

In

light of this conclusive evidence of plaintiff’s alcohol abuse
during the relevant period and that such alcohol abuse exacerbated
the symptoms of plaintiff’s mental impairment, substantial evidence

- 34 -

on

the

record

as

a

whole

supports

the

ALJ’s

finding

that

plaintiff’s substance abuse was a contributing factor material to
plaintiff’s disability during the relevant period.
F.3d at 537-38.

Kluesner, 607

On this record, plaintiff has failed to meet his

burden that his substance abuse was not a contributing factor.
VI.

Conclusion

For the reasons set out above on the claims raised by
plaintiff on this appeal, the ALJ’s determination is supported by
substantial evidence on the record as a whole and plaintiff’s
claims of error should be denied.

Where substantial evidence

supports the Commissioner's decision, this Court may not reverse
the decision merely because substantial evidence may exist in the
record that would have supported a contrary outcome or because
another court could have decided the case differently.

Gowell v.

Apfel, 242 F.3d 793, 796 (8th Cir. 2001); Browning, 958 F.2d at
821; see also Flynn v. Astrue, 513 F.3d 788, 795 (8th Cir. 2008).
Accordingly, the decision of the Commissioner denying plaintiff's
claims for benefits should be affirmed.
Therefore,
IT IS HEREBY ORDERED that Acting Commissioner of Social
Security Carolyn W. Colvin is substituted for former Commissioner
Michael J. Astrue as defendant in this cause.
IT IS FURTHER ORDERED that that the decision of the
Commissioner is AFFIRMED and plaintiff's Complaint is dismissed

- 35 -

with prejudice.
Judgment shall be entered accordingly.

UNITED STATES MAGISTRATE JUDGE

Dated this

10th

day of September, 2013.

- 36 -