Fox v. Colvin

Filing 20

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the relief which Plaintiff seeks in her Complaint and Brief in Support of Complaint is GRANTED in part, and DENIED, in part. (Docs. 1 , 16 ). IT IS FURTHER ORDERED that a Judgment of Reversal and R emand will issue contemporaneously herewith remanding this case to the Commissioner of Social Security for further consideration pursuant to 42 U.S.C. § 405(g), sentence 4. IT IS FURTHER ORDERED that upon entry of the Judgment, the appeal period will begin which determines the thirty (30) day period in which a timely application for attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412, may be filed. Signed by Magistrate Judge Noelle C. Collins on February 24, 2016. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MARY FOX,

)
)
Plaintiff,
)
)
V.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 4:15CV255NCC

MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner denying the application of Mary Fox (Plaintiff)
for Disability Insurance Benefits (DIB) under Title II of the Social Security Act
(the Act), 42 U.S.C. §§ 401 et seq., and for Supplemental Security Income (SSI),
under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq. Plaintiff has
filed a brief in support of the Complaint. (Doc. 16). Defendant has filed a brief in
support of the Answer. (Doc. 19). The parties have consented to the jurisdiction
of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. §
636(c). (Doc. 9).

I.
PROCEDURAL HISTORY
On December 30, 2010, Plaintiff filed her applications for DIB and SSI. (Tr.
136-48). Plaintiff alleged a disability onset date of January 1, 2010. Plaintiff’s
applications were denied, and she requested a hearing before an Administrative
Law Judge (ALJ).

(Tr. 83-87, 90-92).

After a hearing, by decision, dated

September 27, 2012, the ALJ found Plaintiff not disabled. (Tr. 8-23). On January
9, 2015, the Appeals Council denied Plaintiff’s request for review. (Tr. 1-4). As
such, the ALJ’s decision stands as the final decision of the Commissioner.
II.
LEGAL STANDARDS
Under the Social Security Act, the Commissioner has established a five-step
process for determining whether a person is disabled. 20 C.F.R. §§ 416.920,
404.1529. “‘If a claimant fails to meet the criteria at any step in the evaluation of
disability, the process ends and the claimant is determined to be not disabled.’”
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v.
Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for
disability benefits. 20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant
must have a severe impairment. 20 C.F.R. §§ 416.920(c), 404.1520(c). The Social
Security Act defines “severe impairment” as “any impairment or combination of

2

impairments which significantly limits [claimant’s] physical or mental ability to do
basic work activities.” Id. “The sequential evaluation process may be terminated
at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.” Page
v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari,
250 F.3d 603, 605 (8th Cir. 2001) (citing Nguyen v. Chater, 75 F.3d 429, 430-31
(8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment
which meets or equals one of the impairments listed in the Regulations. 20 C.F.R.
§§ 416.920(d), 404.1520(d); pt. 404, subpt. P, app. 1. If the claimant has one of, or
the medical equivalent of, these impairments, then the claimant is per se disabled
without consideration of the claimant’s age, education, or work history. See id.
Fourth, the impairment must prevent the claimant from doing past relevant
work. 20 C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at
this fourth step to establish his or her Residual Functional Capacity (RFC). See
Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step four of this
analysis, the claimant has the burden of showing that she is disabled.”);
Eichelberger, 390 F.3d at 590-91; Masterson v. Barnhart, 363 F.3d 731, 737 (8th
Cir. 2004); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). The ALJ

3

will review a claimant’s RFC and the physical and mental demands of the work the
claimant has done in the past. 20 C.F.R. § 404.1520(f).
Fifth, the severe impairment must prevent the claimant from doing any other
work. 20 C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential
analysis, the Commissioner has the burden of production to show evidence of other
jobs in the national economy that can be performed by a person with the claimant’s
RFC. See Steed, 524 F.3d at 874 n.3; Young, 221 F.3d at 1069 n.5. If the
claimant meets these standards, the ALJ will find the claimant to be disabled.
“The ultimate burden of persuasion to prove disability, however, remains with the
claimant.” Id. See also Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir. 2004)
(citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377 F.3d
801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to
demonstrate RFC remains on the claimant, even when the burden of production
shifts to the Commissioner at step five.”); Charles v. Barnhart, 375 F.3d 777, 782
n.5 (8th Cir. 2004) (“[T]he burden of production shifts to the Commissioner at step
five to submit evidence of other work in the national economy that [the claimant]
could perform, given her RFC.”).

Even if a court finds that there is a

preponderance of the evidence against the ALJ’s decision, the decision must be
affirmed if it is supported by substantial evidence. See Clark v. Heckler, 733 F.2d
65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but is

4

enough that a reasonable mind would find it adequate to support the
Commissioner’s conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th
Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). In Bland v.
Bowen, 861 F.2d 533, 535 (8th Cir. 1988), the Eighth Circuit Court of Appeals
held:
The concept of substantial evidence is something less than the weight
of the evidence and it allows for the possibility of drawing two
inconsistent conclusions, thus it embodies a zone of choice within
which the Secretary may decide to grant or deny benefits without
being subject to reversal on appeal.
See also Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006) (“[W]e may not
reverse merely because substantial evidence exists for the opposite decision.”)
(quoting Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)); Hartfield v.
Barnhart, 384 F.3d 986, 988 (8th Cir. 2004) (“[R]eview of the Commissioner’s
final decision is deferential.”).
It is not the job of the district court to re-weigh the evidence or review the
factual record de novo. See Cox, 495 F.3d at 617; Guilliams v. Barnhart, 393 F.3d
798, 801 (8th Cir. 2005); McClees v. Shalala, 2 F.3d 301, 302 (8th Cir. 1993);
Murphy v. Sullivan, 953 F.2d 383, 384 (8th Cir. 1992). Instead, the district court
must simply determine whether the quantity and quality of evidence is enough so
that a reasonable mind might find it adequate to support the ALJ’s conclusion. See
Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel, 228

5

F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of the ALJ,
who is the fact-finder. See Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987).
See also Onstead v. Sullivan, 962 F.2d 803, 804 (8th Cir. 1992) (holding that an
ALJ’s decision is conclusive upon a reviewing court if it is supported by
“substantial evidence”). Thus, an administrative decision which is supported by
substantial evidence is not subject to reversal merely because substantial evidence
may also support an opposite conclusion or because the reviewing court would
have decided differently.

See Krogmeier, 294 F.3d at 1022.

See also

Eichelberger, 390 F.3d at 589; Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000)
(quoting Terrell v. Apfel, 147 F.3d 659, 661 (8th Cir. 1998)); Hutsell v. Massanari,
259 F.3d 707, 711 (8th Cir. 2001).
To determine whether the Commissioner’s final decision is supported by
substantial evidence, the court is required to review the administrative record as a
whole and to consider:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s
physical activity and impairment;
(5) The corroboration by third parties of the claimant’s physical impairment;

6

(6) The testimony of vocational experts based upon proper hypothetical
questions which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir.
1980); Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989).
Additionally, an ALJ’s decision must comply “with the relevant legal
requirements.” Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).
The Social Security Act defines disability as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A). “While the claimant has the burden of
proving that the disability results from a medically determinable physical or mental
impairment, direct medical evidence of the cause and effect relationship between
the impairment and the degree of claimant’s subjective complaints need not be
produced.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). When
evaluating evidence of pain, the ALJ must consider:
(1) the claimant’s daily activities;
(2) the subjective evidence of the duration, frequency, and intensity of the
claimant’s pain;
(3) any precipitating or aggravating factors;

7

(4) the dosage, effectiveness, and side effects of any medication; and
(5) the claimant’s functional restrictions.
Baker v. Sec’y of Health & Human Servs., 955 F.2d. 552, 555 (8th Cir. 1992);
Polaski, 739 F.2d at 1322.
The absence of objective medical evidence is just one factor to be
considered in evaluating the plaintiff’s credibility. See id. The ALJ must also
consider the plaintiff’s prior work record, observations by third parties and treating
and examining doctors, as well as the plaintiff’s appearance and demeanor at the
hearing. See Polaski, 739 F.2d at 1322; Cruse, 867 F.2d at 1186.
The ALJ must make express credibility determinations and set forth the
inconsistencies in the record which cause him or her to reject the plaintiff’s
complaints. See Guilliams, 393 F.3d at 801; Masterson, 363 F.3d at 738; Lewis v.
Barnhart, 353 F.3d 642, 647 (8th Cir. 2003); Hall v. Chater, 62 F.3d 220, 223 (8th
Cir. 1995). It is not enough that the record contains inconsistencies; the ALJ must
specifically demonstrate that he or she considered all of the evidence. Robinson v.
Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Butler v. Sec’y of Health & Human
Servs., 850 F.2d 425, 429 (8th Cir. 1988). The ALJ, however, “need not explicitly
discuss each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004). See also Steed, 524 F.3d at 876 (citing Lowe v. Apfel, 226 F.3d 969, 972
(8th Cir. 2000)). The ALJ need only acknowledge and consider those factors. See

8

id. Although credibility determinations are primarily for the ALJ and not the court,
the ALJ’s credibility assessment must be based on substantial evidence.

See

Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988); Millbrook v. Heckler, 780
F.2d 1371, 1374 (8th Cir. 1985).
RFC is defined as what the claimant can do despite his or her limitations, 20
C.F.R. § 404.1545(a)(1), and includes an assessment of physical abilities and
mental impairments. 20 C.F.R. § 404.1545(b)-(e). The Commissioner must show
that a claimant who cannot perform his or her past relevant work can perform other
work which exists in the national economy. See Karlix v. Barnhart, 457 F.3d 742,
746 (8th Cir. 2006); Nevland, 204 F.3d at 857 (citing McCoy v. Schweiker, 683
F.2d 1138, 1146-47 (8th Cir. 1982) (en banc)). The Commissioner must first prove
that the claimant retains the RFC to perform other kinds of work. See Goff, 421
F.3d at 790; Nevland, 204 F.3d at 857. The Commissioner has to prove this by
substantial evidence. Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983).
Second, once the plaintiff’s capabilities are established, the Commissioner has the
burden of demonstrating that there are jobs available in the national economy that
can realistically be performed by someone with the plaintiff’s qualifications and
capabilities. See Goff, 421 F.3d at 790; Nevland, 204 F.3d at 857.
To satisfy the Commissioner’s burden, the testimony of a vocational expert
(VE) may be used. An ALJ posing a hypothetical to a VE is not required to

9

include all of a plaintiff’s limitations, but only those which the ALJ finds credible.
See Goff, 421 F.3d at 794 (“[T]he ALJ properly included only those limitations
supported by the record as a whole in the hypothetical.”); Rautio, 862 F.2d at 180.
Use of the Medical-Vocational Guidelines is appropriate if the ALJ discredits the
plaintiff’s subjective complaints of pain for legally sufficient reasons. See Baker
v. Barnhart, 457 F.3d 882, 894-95 (8th Cir. 2006); Carlock v. Sullivan, 902 F.2d
1341, 1343 (8th Cir. 1990); Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir. 1989).
III.
DISCUSSION
The issue before the court is whether substantial evidence supports the
Commissioner’s final determination that Plaintiff was not disabled. See Onstead,
962 F.2d at 804. Thus, even if there is substantial evidence that would support a
decision opposite to that of the Commissioner, the court must affirm her decision
as long as there is substantial evidence in favor of the Commissioner’s position.
See Cox, 495 F.3d at 617; Krogmeier, 294 F.3d at 1022.
At the hearing, Plaintiff’s attorney stated that it was Plaintiff’s contention
that her mental functioning, “mainly the anxiety that she experience[d],” panic
attacks, difficulty leaving her house, and impulsive behavior, precluded Plaintiff
from engaging in substantial gainful work activity.

(Tr. 37).

Counsel

acknowledged that Plaintiff “had a history of alcohol and there [was] some

10

mention of cocaine,” and that she “also [had] been a compulsive gambler.” (Tr.
10).
The ALJ found that Plaintiff met the insured status requirements through
March 31, 2015; that Plaintiff had not engaged in substantial gainful activity since
January 1, 2010, her alleged onset date; that Plaintiff had the severe impairments of
osteoarthritis, obesity, depression, anxiety, and substance abuse disorder; and that
Plaintiff did not have an impairment or combination of impairments that met or
equaled a listed impairment. The ALJ found that Plaintiff had the following RFC:
Plaintiff could lift and carry 20 pounds, occasionally, and 10 pounds, frequently;
she could stand or walk six hours out of an 8-hour work day; she could sit 6 hours
out of an 8-hour work day; she was limited to occasional interaction with
supervisors, co-workers, or the public; she was limited to work that required “no
more than simple, one-or-two step instructions”; and she could not “sustain work
on a continuing basis (i.e., eight hours per day and five days a week.”) Based on
this RFC, and Plaintiff’s age, education, and work experience, the ALJ found that
no jobs existed, in significant numbers, which Plaintiff could perform. (Tr. 11-16).
The ALJ continued her analysis, considering Plaintiff’s substance abuse, and
concluded that if Plaintiff stopped the substance use, her remaining impairments
would cause more than a minimal impact on her ability to perform basic work
activities; that Plaintiff’s remaining impairments, absent substance abuse disorder,

11

were osteoarthritis and obesity; and that this combination of impairments was
severe.

The ALJ also found that Plaintiff’s medically determinable mental

impairment, absent substance abuse, caused no more than mild limitations; that
Plaintiff’s mental impairment had less than a minimal effect upon her ability to
perform work-related functions; and that, consequently, Plaintiff’s mental
impairment was non-severe. The ALJ further concluded that, if Plaintiff stopped
the substance use, she would not have an impairment or combination of
impairments that met or medically equaled a listed impairment, and that she would
have the following RFC: Plaintiff could lift and carry 20 pounds, occasionally, and
10 pounds frequently; she could stand or walk 6 hours out of an 8-hour work day;
she could sit 6 hours out of an 8-hour work day; she could perform routine,
repetitive tasks in a low stress environment; and she was limited to work requiring
no more than occasional judgment. The ALJ found that if Plaintiff stopped the
substance use, considering her age, education, work experience, and RFC, there
would be a significant number of jobs in the national economy which Plaintiff
could perform; that, because Plaintiff’s would not be disabled if she stopped the
substance use, her substance use disorders were together a contributing factor
which was material to the determination of disability; and that, therefore, Plaintiff
was not disabled within the meaning of the Act from her alleged onset date through
the date of the ALJ’s decision. (Tr. 16-23).

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Plaintiff contends that the ALJ’s decision is not based on substantial
evidence because:

the ALJ gave improper weight to the opinion of Charles

Mannis, M.D., who conducted a post-hearing consultative physical evaluation of
Plaintiff; that ALJ erred upon finding that Plaintiff had a medically determinable
impairment of substance abuse; that the ALJ erred when finding that Plaintiff’s
medical conditions would sufficiently improve were she to abstain from substance
abuse; the ALJ’s decision is internally inconsistent; and that the ALJ posed a
flawed hypothetical to the VE. For the reasons discussed below, to the extent the
ALJ’s decision addresses whether Plaintiff’s conditions would sufficiently improve
to the point that she would not be found disabled were she to abstain from
substance abuse, the court finds that the ALJ’s decision is not based on substantial
evidence and is not entirely consistent with the Regulations and case law. As such,
the court finds it unnecessary to address Plaintiff’s other arguments why the ALJ’s
decision is not based on substantial evidence.
III.
DISCUSSION
The issue before the court is whether substantial evidence supports the
Commissioner’s final determination that Plaintiff was not disabled. See Onstead,
962 F.2d at 804. Thus, even if there is substantial evidence that would support a
decision opposite to that of the Commissioner, the court must affirm her decision

13

as long as there is substantial evidence in favor of the Commissioner’s position.
See Cox, 495 F.3d at 617; Krogmeier, 294 F.3d at 1022.
In 1996, Congress eliminated substance abuse as a basis for obtaining social
security benefits. See Kluesner v. Astrue, 607 F.3d 533, 537 (8th Cir. 2010). The
Regulations applicable to substance abuse provide that: “An individual shall not
be considered disabled for purposes of [Social Security] if alcoholism or drug
addiction would (but for this subparagraph) be a contributing factor material to the
Commissioner's determination that the individual is disabled.”

Id.

The

Regulations set forth a two-step process in cases involving evidence of substance
abuse. First, the ALJ must determine if the claimant’s symptoms, regardless of
cause, constitute a disability. Kluesner, 607 F.3d at 537; 20 C.F.R. § 416.935(a).
If the ALJ finds a disability and evidence of substance abuse, the next step is to
determine whether the disability would exist in the absence of the substance abuse.
Kluesner, 607 F.3d at 537. As such, the ALJ's finding of disability “is, in effect, a
condition precedent” to applying the special rule on alcoholism and drug
addiction.”

Frank S. Bloch, Bloch on Social Security § 3.39 (2003) (cited

approvingly in Brueggemann v. Barnhart, 348 F.3d 689, 693 (8th Cir. 2003)). See
also Fastner v. Barnhart, 324 F.3d 981, 986 (8th Cir. 2003) (“Generally, a
determination under . . . § 416.935(b) is only necessary if the ALJ has found that

14

the sum of that individual’s impairments would otherwise amount to a finding of
disability.”).
“An individual is not considered to be disabled . . . if alcoholism or drug
addiction would . . . be a contributing factor material to the Commissioner's
determination that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C). “[T]he
relevant inquiry is ‘whether [the Commissioner] would still find [a claimant]
disabled if [he or she] stopped using drugs or alcohol.’” Estes v. Barnhart, 275
F.3d 722, 725 (8th Cir. 2002) (quoting 20 C.F.R. § 404.1535 and 20 C.F.R. §
416.935). Rehder v. Barnhart, 205 F.3d 1056, 1059 (8th Cir. 2000); Jackson v.
Apfel, 162 F.3d 533, 537 (8th Cir. 1998) (because claimant’s depression was
linked to chemical dependence and because it was not a severe impairment when
combined with alcohol abuse, the plaintiff was not disabled).
Plaintiff contends that, upon determining Plaintiff=s RFC, the ALJ failed to
consider the Eighth Circuit=s opinion, in Brueggemann, 348 F.3d at 693-95, when
determining whether Plaintiff was disabled.

The court, in Brueggemann,

considered the above-cited statutory provisions relevant to a claimant with a
history of alcoholism, and held that:
Since certain 1996 amendments to the Social Security Act, if
alcohol or drug abuse comprises a contributing factor material to the
determination of disability, the claimant's application must be denied.
42 U.S.C. § 423(d)(2)(C); 20 C.F.R § 404.1535. The burden of
proving that alcoholism was not a contributing factor material to the
disability determination falls on [the claimant]. Estes v. Barnhart, 275
15

F.3d 722, 725 (8th Cir. 2002), citing Mittlestedt v. Apfel, 204 F.3d
847, 852 (8th Cir. 2000). However, the ALJ retains the responsibility
of developing a full and fair record in the non-adversarial
administrative proceeding. Hildebrand, 302 F.3d at 838.
...
The plain text of the relevant regulation requires the ALJ first to
determine whether [a claimant] is disabled. 20 C.F.R. § 404.1535(a)
(AIf we find that you are disabled and have medical evidence of your
drug addiction or alcoholism, we must determine whether your drug
addiction or alcoholism is a contributing factor material to the
determination of disability.@ (emphasis added)). The ALJ must reach
this determination initially, as the ALJ did in Fastner v. Barnhart, 324
F.3d 981, 986 (8th Cir. 2003), using the standard five-step approach
described in 20 C.F.R. § 404.1520 without segregating out any effects
that might be due to substance use disorders. Ball v. Massanari, 254
F.3d 817, 821 (9th Cir. 2001). The ALJ must base this disability
determination on substantial evidence of [the claimant’s] medical
limitations without deductions for the assumed effects of substance
use disorders. The inquiry here concerns strictly symptoms, not
causes, and the rules for how to weigh evidence of symptoms remain
well established. Substance use disorders are simply not among the
evidentiary factors our precedents and the regulations identify as
probative when an ALJ evaluates a physician's expert opinion in the
initial determination of the claimant's disability. See 20 C.F.R. §
404.1527.
If the gross total of a claimant's limitations, including the
effects of substance use disorders, suffices to show disability, then the
ALJ must next consider which limitations would remain when the
effects of the substance use disorders are absent. Pettit v. Apfel, 218
F.3d 901, 903 (8th Cir. 2000); 20 C.F.R. §404.1535(b)(2). We have
previously noted that when the claimant is actively abusing alcohol or
drugs, this determination will necessarily be hypothetical and
therefore more difficult than the same task when the claimant has
stopped. Pettit, 218 F.3d at 903. Even though the task is difficult, the
ALJ must develop a full and fair record and support his conclusion
with substantial evidence on this point just as he would on any other.

16

Only after the ALJ has made an initial determination 1) that
[the claimant] is disabled, 2) that drug or alcohol use is a concern, and
3) that substantial evidence on the record shows what limitations
would remain in the absence of alcoholism or drug addiction, may he
then reach a conclusion on whether [the claimant=s] substance use
disorders are a contributing factor material to the determination of
disability. If this process proves indeterminate, an award of benefits
must follow.
(emphasis added).
It is apparent from the text of the ALJ’s decision in the matter under
consideration that the ALJ followed the Regulations and procedure, as set forth in
Brueggemann, to the extent the ALJ first considered whether Plaintiff was disabled
in view of all her limitations, including her substance abuse, prior to considering
whether her limitations would remain if her substance abuse ceased. Upon doing
so the ALJ considered only Plaintiff’s symptoms, not the causes of her symptoms,
and concluded that Plaintiff’s substance disorders were a contributing factor
material to the disability determination and that Plaintiff was unable to engage in
substantial gainful activity.

As required by the Regulations, the ALJ then

considered whether Plaintiff’s limitations would remain when the effects of her
substance use disorders were absent.
As relevant to the determination of whether Plaintiff’s limitations would
remain when the effects of her substance use disorders were absent, a Progress
Note from BetNoMore Gambling Programs, dated February 15, 2012, prepared by
D. L. Smith, L.C.S.W., B.A.C.C., reflects that Plaintiff said she “[u]sed alcohol,
17

coke and gambled in response” to issues with attending a meeting in a clinic; and
that she “was doing very well after court then set back by the inability to seek
medical help.” (Tr. 439-40). Mr. Smith reported, in a Progress Notes of February
29, 2012, that Plaintiff said that she “used cocaine over the weekend with friends”
and “then had a few beers with” a friend; that she drank the prior Friday and went
gambling afterwards; and that, on the prior Saturday, she used more cocaine, lost
more of her own money, and again on Sunday after [an] argument with her
brother.” (Tr. 440). Additionally, Mr. Smith reported, in a Progress Note, dated
March 14, 2012, that Plaintiff said she did “some not a lot of cocaine over the
weekend”; that Plaintiff was concerned that if she sought help at Grace Hill she
would be treated “like an addict”; and that the counselor suggested to Plaintiff that
if she stopped using cocaine she may not be treated as an addict. Plaintiff also told
Mr. Smith, on this date, that, on two occasions, after she “chickened out” of going
to Goodwill, she drank afterwards; and that after drinking she went to the casino
and gambled. (Tr. 440-41).
On March 21, 2012, Mr. Smith reported, in a Progress Note, that Plaintiff
had “polysubstance dependence (alcohol cocaine) r/o cocaine dependence,” and
that that Plaintiff’s “last use of alcohol and cocaine was concomitant with [her] last
gambling experience, 3/10/12, after a period of months of abstaining.” (Tr. 441).
On March 22, 2012, Maria del Rosario Bobadilla, a therapist with Grace Hill

18

Health Centers, Inc., diagnosed Plaintiff with “Drug withdrawal,” and noted that
Plaintiff had “no history of alcohol use” and that Plaintiff denied alcohol use. Ms.
Bobadilla diagnosed Plaintiff with “Anxiety, Generalized,” “Adjustment Disorder
w/Depressed Mood,” and “Drug withdrawal.” The record does not reflect Ms.
Bobadilla’s training or what type of degree, if any, she has. (Tr. 426-27).
On March 28, 2012, Mr. Smith reported, in a Progress Note, that Plaintiff
reported “no gambling, no drinking, no cocaine, but report[ed] she did drink a lot
of vodka for tooth pain on Saturday (no drinking?).” Notes of this date also reflect
that Plaintiff stated that “she [was] doing well except for getting very very drunk
on Saturday. She [was] proud of herself for not using cocaine or gambling.” (Tr.
441-42).
On April 18, 2012, Mr. Smith reported that Plaintiff was gambling on her
phone, and that Plaintiff was “cognitively and emotionally compromised to such an
extent (the drinking and cocaine, as well as environmental stressors do not help,
nor do the family arguments), that she [could not] understand that she [was] in
action with gambling even though she [was] not using any real money for the
betting.” Mr. Smith further reported, on this date, that, despite Plaintiff’s desire to
stop drinking or using drugs, she continued to use them. Mr. Smith concluded that
“[e]ither [Plaintiff] was not acting out in this way at the time of admit, and
subsequently developed the addiction to chemicals, or she was minimizing and not

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reporting from the very beginning.” (Tr. 442). On April 25, 2012, Plaintiff told
Mr. Smith that she was “us[ing] cocaine to pick her[self] up,” and that she drank
“to stop the pain, physical and emotional.” (Tr. 442-43).
Mr. Smith reported, pursuant to a May 3, 2012 Assessment, that Plaintiff
said she began use of alcohol at age thirteen; that she said she last used alcohol “oh
I don’t know, a month or so [ago], with no use of other drugs except cocaine which
help[ed] her stay up at the casino”; that Plaintiff said that she believed her
depression and gambling were “to the point where she [could] not finish college
classes nor consistently find work”; that Plaintiff reported “no substance problems,
but [that] [she] was arrested for criminal trespass because she self-excluded from
casinos in MO and IL and continued to gamble”; that she “was in possession of a
small amount of cocaine at the time of the arrest”; that she “drank too much with
friends, decides to use cocaine with her female friend of many years, and then goes
gambling”; that she “used cocaine to extend the time she [could] gamble”; and that
she was “drinking less” at the time of the assessment.

Mr. Smith’s clinical

impression was that Plaintiff was a “compulsive gambler, and may have substance
issues,” and that she had “no recovery program, but ha[d] taken responsibility for
her actions, [was] very remorseful, and report[ed] a sincere desire to succeed at
rehabilitation.” (Tr. 431-34).

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Notably, as stated above, Plaintiff’s counsel acknowledged her substance
abuse, including alcoholism, cocaine use, and compulsive gambling, but argued
that Plaintiff’s substance abuse was not significant. (Tr. 37). Also, Plaintiff
testified, at the May 22, 2012 hearing, that she last used cocaine and alcohol in
March 2012, and that, when she had panic attacks, she sometimes turned to
alcohol. (Tr. 45-46).
Despite the above records reflecting Plaintiff’s acknowledged use of alcohol
and cocaine, on May 24, 2010, Plaintiff reported to Joseph Wood, M.D., whom she
saw for knee pain, that she had no history of alcohol or drug use. (Tr. 361-62). On
March 1, 2011, Plaintiff told Georgia Jones, M.D., who saw Plaintiff for a
psychiatric evaluation, that she did not drink alcohol or use illicit drugs. Dr. Jones’
diagnosis of Plaintiff was “[p]anic disorder with some agoraphobic symptoms,”
“[m]ajor affective disorder,” and “depression, recurrent, moderate.” Dr. Jones did
not include substance abuse in her diagnosis. (Tr. 376-79). On August 25, 2011,
Darnetta Carter, L.C.S.W. reported, after meeting with Plaintiff for mental health
assistance, that Plaintiff denied drug or alcohol abuse. (Tr. 409). On October 12,
2011, when she presented with depression, Plaintiff told Asha Kodwani, M.D., that
she had no history of alcohol or drug use. Dr. Kodwani’s impression included
depressive disorder and anxiety disorder. (Tr. 400-01).

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Thus, the record does not reflect that an acceptable medical source
considered the extent to which Plaintiff’s impairments would remain when the
effects of substance abuse were absent. Further, to the extent Mr. Smith rendered
an opinion in this regard, he is not an acceptable medical source under the
Regulations. Lacroix v. Barnhart, 465 F.3d 881, 886 (8th Cir. 2006) (therapists are
not acceptable medical sources) (citing 20 C.F.R. §§ 404.1513(a), 416.913(a)
(excluding therapists and nurse practitioners from the list of acceptable medical
sources); Raney v. Barnhart, 396 F.3d 1007, 1010 (8th Cir. 2005) ("A therapist is
not an 'acceptable medical source' to establish 'a medically determinable
impairment.'"). Indeed, a therapist’s opinion is entitled to some weight. See id.
The record, however, does not reflect whether Plaintiff’s treatment team for her
mental health conditions included an acceptable medical source who adopted or
reviewed Mr. Smith’s findings. See id. (distinguishing cases in which a therapist
was associated with an acceptable medical source from those where the therapist
was not).
It is apparent from the record that, during the relevant period, Plaintiff did
not abstain from using alcohol and/or cocaine. Further, as discussed above, the
Eighth Circuit, in Brueggemann, 348 F.3d at 692-95, recognized that where a
claimant is actively engaging in substance abuse, it is difficult for an ALJ to
determine whether a claimant’s limitations would remain when the effects of her

22

substance abuse disorders are absent. The court finds that the record, as it now
stands, was insufficient for the ALJ to make this difficult determination, absent
review by an acceptable medical source. The court will, therefore, reverse and
remand this matter to the Commissioner, with instructions that, upon remand, the
ALJ should have an acceptable medical source, such as a psychiatrist or
psychologist, examine Plaintiff and/or review the record for the purpose of opining
whether Plaintiff’s limitations would remain when the effects of her substance
abuse disorders are absent.
IV.
CONCLUSION
The court finds that this matter should be reversed and remanded to the
Commissioner of Social Security for further consideration pursuant to 42 U.S.C. §
405(g), sentence 4. Upon remand, the ALJ is directed to fully develop the record
in a manner consistent with this court=s opinion. The court stresses that, upon
reversing and remanding this matter, it does not mean to imply that the
Commissioner should return a finding of Adisabled.@

The court is merely

concerned that the Commissioner=s final determination, as it presently stands, is not
supported by substantial evidence on the record as a whole.

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ACCORDINGLY,
IT IS HEREBY ORDERED that the relief which Plaintiff seeks in her
Complaint and Brief in Support of Complaint is GRANTED in part, and
DENIED, in part. (Docs. 1, 16).
IT IS FURTHER ORDERED that a Judgment of Reversal and Remand
will issue contemporaneously herewith remanding this case to the Commissioner
of Social Security for further consideration pursuant to 42 U.S.C. § 405(g),
sentence 4.
IT IS FURTHER ORDERED that upon entry of the Judgment, the appeal
period will begin which determines the thirty (30) day period in which a timely
application for attorney=s fees under the Equal Access to Justice Act, 28 U.S.C. §
2412, may be filed.
Dated this 24th day of February 2016.

/s/ Noelle C. Collins
UNITED STATES MAGISTRATE JUDGE

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