Tyson v. Colvin

Filing 27

MEMORANDUM AND ORDER - IT IS ORDERED: The Commissioner's decision is reversed. This matter is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for calculation and award of past-due benefits based upon an onset date of disability of June 24, 2009. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHERYL L. TYSON,
Plaintiff,

8:13-CV-29

vs.
MEMORANDUM AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
This matter is before the Court on plaintiff Cheryl L. Tyson's appeal
from the decision of the Commissioner of the Social Security Administration
which awarded her disability insurance benefits under Title XVI of the Social
Security Act, 42 U.S.C. § 1381 et seq., effective July 1, 2011. Tyson is seeking
past-due benefits. The Court has considered the parties' filings and the
administrative record, and will reverse the Commissioner's decision and
remand this case for calculation and award of past-due benefits.
BACKGROUND
Tyson applied for Supplemental Security Income benefits in June 2009.
T305. Her claim was denied initially and on reconsideration, and by an
administrative law judge (ALJ). T136-52, 166-76. But the Appeals Council of
the Social Security Administration was presented with new and material
evidence, and found that the ALJ had overlooked certain evidence and made
factual errors. T162-64. So, the Appeals Council remanded the case to the
ALJ, and after remand, the ALJ found that Tyson was disabled and entitled
to benefits. T11-34.
To determine whether a claimant is entitled to disability benefits, the
ALJ performs a five-step sequential analysis. 20 C.F.R. § 404.1520(a)(4). At
step one, the claimant has the burden to establish that she has not engaged
in substantial gainful activity since her alleged disability onset date. Id.;
Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006). If the claimant has
engaged in substantial gainful activity, she will be found not to be disabled;
otherwise, at step two, she has the burden to prove she has a medically
determinable physical or mental impairment or combination of impairments
that significantly limits her physical or mental ability to perform basic work

activities. Id. At step three, if the claimant shows that her impairment meets
or equals a presumptively disabling impairment listed in the regulations, she
is automatically found disabled and is entitled to benefits. Id. Otherwise, the
analysis proceeds to step four, but first, the ALJ must determine the
claimant's residual functional capacity (RFC), which is used at steps four and
five. 20 C.F.R. § 404.1520(a)(4). At step four, the claimant has the burden to
prove she lacks the RFC to perform her past relevant work. Id.; Gonzales, 465
F.3d at 894. If the claimant can still do her past relevant work, she will be
found not to be disabled; otherwise, at step five, the burden shifts to the
Commissioner to prove, considering the claimant's RFC, age, education, and
work experience, that there are other jobs in the national economy the
claimant can perform. Id.
In this case, at step one, the ALJ found that Tyson had not engaged in
substantial gainful activity since her alleged disability onset date of June 24,
2009. T14. At step two, the ALJ found that Tyson had the following severe
impairments as of her alleged onset date: alcohol dependence; low back
pain/sciatica and asthma, major depressive disorder, bipolar disorder, and
anxiety disorder. T15. The ALJ found that Tyson's alcohol dependence
stopped being severe as of August 25, 2010. T15. And the ALJ found that
beginning on July 1, 2011, Tyson also had an unspecified cognitive disorder
that constituted a severe impairment. T15. At step three, the ALJ found that
none of Tyson's impairments met or equaled a presumptively disabling
impairment. T15, 25.
In determining Tyson's RFC, and at steps four and five, the ALJ
differentiated between Tyson's condition before and after she stopped
drinking alcohol. T25. The ALJ found that Tyson's alcohol abuse was
material until August 24, 2010—meaning that although she was disabled
during that time, she would not have been disabled if she had not been
drinking. T18-23. And the ALJ found that as of July 1, 2011, Tyson's mental
condition had deteriorated to the point that her RFC included, among other
things, an inability to maintain attention, concentration, persistence, and
pace over the course of an 8-hour day and 40-hour workweek or equivalent
schedule. T31. That limitation meant that she could perform neither her past
relevant work nor any other jobs that exist in significant numbers in the
national economy. T31-34.
But for the period between August 24, 2010 and July 1, 2011, the ALJ
found that Tyson was capable of routine, repetitive, unskilled work that did
not require maintenance of attention or concentration for extended periods;
was able to perform work that did not require more than occasional (not
constant or intense) interaction with coworkers, supervisors, or the general
public; and was able to work in an environment free from concentrated
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exposure to fumes, dust, odors, gases, or other known respiratory irritants.
T26. But she was still capable of maintaining attention, concentration,
persistence, and pace over the course of a workday and workweek, so she
could still perform her past relevant work, and could perform other jobs that
exist in significant numbers in the national economy. T29-31.
So, the ALJ found that Tyson was disabled, but only beginning on July
1, 2011. T34. The Appeals Council denied Tyson's request for review. T1-3.
Tyson's complaint seeks review of the ALJ's decision as the final decision of
the Commissioner under sentence four of 42 U.S.C. § 405(g). Filing 1.
STANDARD OF REVIEW
The Court reviews a denial of benefits by the Commissioner to
determine whether the denial is supported by substantial evidence on the
record as a whole. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011) (citing
42 U.S.C. § 405(g)). Substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the
conclusion. Id. The Court must consider evidence that both supports and
detracts from the ALJ's decision, and will not reverse an administrative
decision simply because some evidence may support the opposite conclusion.
Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011). If, after reviewing the
record, the Court finds it is possible to draw two inconsistent positions from
the evidence and one of those positions represents the ALJ's findings, the
Court must affirm the ALJ's decision. Id. The Court reviews for substance
over form: an arguable deficiency in opinion-writing technique does not
require the Court to set aside an administrative finding when that deficiency
had no bearing on the outcome. Buckner v. Astrue, 646 F.3d 549, 559 (8th Cir.
2011). And the Court defers to the ALJ's determinations regarding the
credibility of testimony, so long as they are supported by good reasons and
substantial evidence. Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011).
ANALYSIS
The issues in this case are relatively narrow. Tyson does not dispute
that she was not disabled before June 24, 2009. The Commissioner does not
dispute that Tyson was disabled as of July 1, 2011. And it is uncontested that
Tyson stopped abusing alcohol as of August 24, 2010. 1 So, the question is
whether there is substantial evidence in the record to support the ALJ's
findings that (1) Tyson's alcohol abuse was material to her disability between
June 24, 2009 and August 24, 2010; and (2) Tyson's cognitive decline did not

There was at least one instance of relapse in 2012, but because it was after the disability
onset date found by the ALJ, it is not important to the Court's disposition.
1

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disable her until July 1, 2011. That will be easier to answer, however,
starting with the date of disability.
DATE OF DISABILITY
Tyson's claim depends on the opinion of Tenycia Shepherd, M.D., her
treating psychiatrist. Shepherd began treating Tyson on June 2, 2009, when
Tyson presented at the Douglas County Community Mental Health Center
(Douglas County) with what Shepherd identified as major depressive disorder
and alcohol dependence. T541-44. Shepherd continued to treat Tyson
regularly and, on July 22, 2011, opined that Tyson had moderate or marked
limitations in nearly every aspect of daily living activities and social
functioning, and marked to extreme limitations in every aspect of
maintaining concentration, persistence, or pace. T902-07. Most pertinently,
Shepherd opined that Tyson's condition had reached that level of severity as
of June 2, 2009. T909. Shepherd also explained that Tyson's ability to make
occupational adjustments ranged from fair to poor; her ability to understand,
remember, and carry out simple job instructions was poor; and that she had
no ability to understand, remember, and carry out complex or detailed job
instructions. T910-11. Shepherd later clarified that in her opinion, Tyson's
symptoms would have been the same regardless of whether Tyson used
alcohol or drugs. T1067.
In evaluating Shepherd's opinion, it is important to remain mindful of
the fact that Shepherd is Tyson's treating psychiatrist and is, therefore, a
treating medical source. See 20 C.F.R. § 404.1502. The opinion of a treating
medical source is given more weight because that source is likely to be the
medical professional most able to provide a detailed, longitudinal picture of
the claimant's impairments and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations. 20 C.F.R. § 404.1527(c)(2). When the
treating physician's opinion is supported by proper medical testing, and is not
inconsistent with other substantial evidence in the record, the ALJ must give
the opinion controlling weight. See, id.; Anderson v. Astrue, 696 F.3d 790, 793
(8th Cir. 2012).
Even if the treating source's opinion is not given controlling weight, an
ALJ must apply certain factors—the length of the treatment relationship and
the frequency of examination, the nature and extent of the treatment
relationship, supportability of the opinion, consistency of the opinion with the
record as a whole, and the specialization of the treating source—in
determining what weight to give the opinion. See 20 C.F.R. 404.1527(c)(2); see
also Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). And the
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ALJ must always give good reasons for the weight given the treating source's
opinion. 20 C.F.R. § 404.1527(c)(2); see also Anderson, 696 F.3d at 793.
Pursuant to that provision, a decision denying benefits "must contain specific
reasons for the weight given to the treating source's medical opinion,
supported by the evidence in the case record, and must be sufficiently specific
to make clear to any subsequent reviewers the weight the adjudicator gave to
the treating source's medical opinion and the reasons for that weight." SSR
96-2p, 61 Fed. Reg. 34490-01, 34492 (July 2, 1996); Wilson, 378 F.3d at 544.
In this case, the ALJ concluded that "the record lacks support for the
full degree of severity by [sic] which Dr. Shepherd described, especially when
considering the added effects of substance abuse on [Tyson's] condition prior
to August 25, 2010." T15. The ALJ explained that
Dr. Shepherd's opinion is certainly not discounted
altogether, though it is held in light of the degree by which it is
borne by the evidence of record at different times and the clear
effects of substance use, as were relevant to a finding of disability
prior to August 2010. In short, her assessment—both with
regards to the claimant meeting listing 12.04 and her functionby-function analysis . . . are [sic] given little weight prior to July
1, 2011. Not only is the claimant seen to have been moreso [sic]
affected [sic] by the later development of cognitive
decompensation, apparently not directly caused by alcoholism,
but Dr. Shepherd's opinion was also first rendered in that month,
when she acknowledged the claimant's cognitive disorder.
Accordingly, Dr. Shepherd's opinion is afforded substantial
weight as of the established onset date but is still unsupported in
its entirety by evidence on record at that time, as well as that
later received.
T16. The ALJ noted that before August 24, 2010, Tyson was medically
treated almost exclusively for alcohol use. T22. And after August 24, the ALJ
found, "although some evidence prior to July 1, 2011 suggests still further
development of a cognitive process, the record is absent any definitive
evidence of substantial, sustained cognitive decline and contains few
incidences of other treatment." T28.
Accordingly, the ALJ afforded "little weight to the assessment of Dr.
Shepherd" for the period between August 24, 2010 and July 1, 2011, instead
crediting the opinion of two State agency psychological consultants and
another, non-treating psychologist. T28. But "[b]eginning with July 2011,
significant weight is warranted to be assigned to the assessment of Dr.

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Shepherd, which is thereafter (but not before) supported by the evidence of
record." T32. "It was that month[,]" the ALJ wrote, "where Dr. Shepherd first
acknowledged and diagnosed [Tyson] to have a cognitive disorder, which was
only referenced as a possibility previously—either in her records or those
from other providers." T32.
But the ALJ's reasoning is not supported by the record in a number of
respects. To begin with, the record provides more support for Shepherd's
opinion than the ALJ's decision suggests.2 The ALJ wrote that
although some evidence prior to July 1, 2011 suggests still
further development of a cognitive process, the record is absent
any definitive evidence of substantial, sustained cognitive decline
and contains few incidences of other treatment. Dr. Shepherd's
records from April 2011 (her only note in 2011, prior to June)
show that [Tyson] had spent the previous month in jail;
nonetheless, she was described as "doing fair" with euthymic
mood and full affect.
In the absence of alcohol abuse, [Tyson]'s condition is seen
to have been substantially improved prior to July 1, 2011; even
her subjective complaints are not directive of disabling
impairment during that time and were not as severe as alleged at
the hearing. Excepting [Tyson]'s one emergency room visit (her
only hospital contact since August 24, 2010), she is seen to have
achieved a rather stable baseline of functioning over this elevenmonth period, as evidenced by the stark contrast in earlier
findings and observations by her treating providers as well as the
fact that [Tyson] was not in need of emergency intervention,
aggressive medical care or hospitalization of any kind. The
distinct decrease in [Tyson]'s frequency of treatment and her
noted medical compliance over the period of sobriety suggests not
only that her symptoms had achieved appreciable control but
that, in the absence of alcohol use, she lacked the severity of
symptoms that would require greater than conservative
treatment managed on an outpatient basis.
T28. But a person need not be "in need of emergency intervention, aggressive
medical care or hospitalization" in order to be disabled within the meaning of
Given Tyson's extensive history of medical treatment and substance abuse counseling and
rehabilitation, the medical records provided to the Social Security Administration and the
Court were voluminous. The Court has reviewed the entire record, but will discuss only the
salient portions.
2

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the Social Security Act. And, in fact, the medical records suggest an ongoing
concern with Tyson's cognitive ability.
Tyson was admitted to residential substance abuse treatment at
Catholic Charities on August, 24, 2010. T929. Although notes immediately
following Tyson's date of sobriety were fairly positive, and focused more on
her emotional condition, by November 17, Tyson's therapist at Catholic
Charities, Elizabeth Shefter, LMHP, PLADC, observed that Tyson had been
"experiencing tearfulness, confusion and forgetfulness and frequently feels
disorganized and overwhelmed." T951. On December 1, Dan Brune, a nurse
at Douglas County, noted Tyson's "poor focus," racing thoughts, and "wordfinding difficulty" along with some mood irritability and "thought
disturbances." T783. On December 15, Shefter noted Tyson's "continued
difficulty procrastinating" about certain obligations and that Tyson "tends to
become confused and agitated when any of these issues are discussed." T950.
On December 29, Brune noted that Tyson's memory was "not so good" and
that she was "still seeing shadows." T780.
On January 11, 2011, Tyson was asked to leave residential treatment
for violating her behavior contract, and went to live with her father. T929.
Shefter wrote that
Tyson frequently complained of forgetfulness and said that she
was not able to remember the daily schedule, to set up
appointments or to call in her prescriptions when needed. She
also frequently stated that she did not remember having been
given a directive such as to complete an assignment or not put
snacks in her room. She reported frequently feeling confused, and
during therapy sessions she did have a tangential thought
process and difficulty conveying information in a linear manner.
Peers were also aware of her disorganization. During treatment
we attempted to address this problem by helping her organize her
papers and write down important information. This writer also
spoke with her mental health provider at Douglas County so that
this could be addressed following her discharge. No additional
testing was completed during her treatment and it remained
unclear how much of this problem was organic in nature, and
how much could be addressed through insight and behavioral
interventions.
T931. Shefter contacted Tyson's case worker at Douglas County to explain
her concern with Tyson's cognitive functioning, and suggested neurological
testing. T931. Shefter described Tyson's prognosis as guarded, explaining

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that it was "unclear what portion of her difficulties are caused by cognitive
deficits, and she may continue to struggle with her memory and
organizational skills if this is a major factor." T932.
When Brune next saw Tyson, on January 18, 2011, he noted that
Tyson's father, who was present, was concerned about Tyson's "functional
decline." T835. Then, on February 4, Tyson was brought by friends to the
Immanuel Medical Center emergency room suffering from severe confusion
and hallucinations. T1053. Tyson was "hearing voices and seeing shadows"
and could not tell the emergency room doctor where she was or what the date
was. T1053. Tyson "thought that this was June and when asked if we would
have this much snow in June she said, it's June." T1056.
Shepherd saw Tyson on February 14, 2011, and noted a need for
"neuropsych testing for dementia vs. cognitive decline." T832. Shepherd noted
Tyson's poor memory. T832. Shepherd saw Tyson again on April 11 and June
6, and on both occasions noted that Tyson still had memory difficulties. T825,
830. Tyson was also seen several times during that period at Douglas County
by Barbara Bibins, M.S., LIMHP, LADC. Bibins' notes for January 24 include
that Tyson "feels confused and forgets often." T834. On April 20, Bibins noted
that Tyson was "still having memory problems." T829. On May 9, Tyson was
depressed and crying and her memory was "poor," although she was "able to
do some problem-solving in spite of memory problems." T828. On May 25,
Bibins noted that Tyson was "overwhelmed" by a number of issues, including
"worry about memory loss." T827. Bibins also observed that Tyson was
"repeating stories and forgets topic while talking." T827. And on June 14,
Bibins noted Tyson's "anxiety due to memory loss but significant decrease
since last seen." T824. (Read in context, Bibins seems to have been saying
that Tyson's anxiety had decreased, not that her memory had improved.)
In sum, the record does not support the ALJ's finding that it was
"absent any definitive evidence of substantial, sustained cognitive decline
and contains few incidences of other treatment." T28. The ALJ's reference to
Shepherd's April 11, 2011 note omitted Shepherd's observation of Tyson's
poor memory, and the ALJ's description of that note as being Shepherd's
"only note in 2011, prior to June" suggests that the ALJ overlooked
Shepherd's February 14 note, in which Shepherd indicated that "neuropsych
testing for dementia vs. cognitive decline" was warranted. T28, 832. Nor does
the record support the ALJ's conclusion that Tyson had "achieved a rather
stable baseline of functioning" between August 2010 and July 2011. Tyson
was, during that period, living in a residential substance abuse facility, then
with her father, and then in a Salvation Army residential support program.
T929, 1085. Tyson's ability to meet her medical appointments while living

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with others in supportive environments was not indicative of an ability to
maintain full-time employment.
But more to the point, it is important to remember that the issue before
the Court is not whether the ALJ's factual finding is consistent with the
evidence—it is, rather, whether Shepherd's opinion is inconsistent with the
other substantial evidence in the record, because unless it is inconsistent, the
ALJ was required to give Shepherd's opinion controlling weight. See, 20
C.F.R. § 404.1527(c)(2); Anderson, 696 F.3d at 793. It is permissible for an
ALJ to discount an opinion of a treating source that is inconsistent with the
source's clinical treatment notes. Davidson v. Astrue, 578 F.3d 838, 843 (8th
Cir. 2009). But there is nothing inconsistent in this case; in fact, the record is
wholly consistent with Shepherd's opinion, and that opinion was entitled to
controlling weight—including the conclusion regarding when Tyson was
disabled. A treating doctor's retrospective diagnosis is entitled to controlling
weight if it is based upon a medically accepted clinical diagnostic technique,
and is consistent with the record. See Grebenick v. Chater, 121 F.3d 1193,
1199 (8th Cir. 1997); cf. Jones v. Chater, 65 F.3d 102, 104 (8th Cir. 1995).
Instead, the ALJ credited the opinions of two State agency
psychological consultants and another, non-treating psychologist. But to
begin with, it does not appear that either of the State agency consultants
actually examined Tyson, and the opinions of non-treating practitioners who
have attempted to evaluate a claimant without examination do not normally
constitute substantial evidence on the record as a whole upon which to base a
denial of benefits. Shontos v. Barnhart, 328 F.3d 418, 425 (8th Cir. 2003).
More importantly, however, all of those evaluations were performed before
Tyson stopped abusing alcohol—none more recent than April 2010. T594,
702, 709. Those opinions will be discussed in a bit more detail below, but for
now it suffices to observe that an opinion rendered in April 2010 provides
little basis to discount a treating psychiatrist's opinion regarding her
patient's condition between August 2010 and July 2011.
Nor is there a firm basis in the record for the ALJ's choice of July 1,
2011 as the onset date for Tyson's disability. There was no precipitating
event to suggest that Tyson's impairments had increased. The ALJ wrote
that Tyson "developed a cognitive disorder of apparent insidious nature,
which manifested to result in substantial limitations as of July 1, 2011." T32.
The ALJ found that in the 15 months after July 1, Tyson's condition had
worsened and that those "reports serve to lend credibility to Dr. Shepherd's
opinion not previously due, given the virtual absence of these added
limitations being confirmed prior to July 2011." T32.
To be sure, there is evidence suggesting that Tyson's condition may
have declined—most pertinently, Shepherd's later opinion to that effect. But
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it is far from clear how subsequent evidence could validate Shepherd's July
2011 opinion when, according to the ALJ, the evidence preceding that opinion
was inconsistent with it. And, in fact, the Court's review of the evidence
reveals very little difference between the symptoms described before July 1
and after. As a result, there is no basis for crediting Shepherd's opinion
starting July 1, but discrediting it before then.
The Court recognizes that an ALJ may discount or even disregard the
opinion of a treating source where other medical assessments are supported
by better or more thorough medical evidence. Reed v. Barnhart, 399 F.3d 917,
921 (8th Cir. 2005). But that was not the case here. The ALJ may have been
dissatisfied with the evidence in the record supporting Shepherd's opinion,
but that is not the standard. Shepherd's opinion was, in fact, the only opinion
in the record from a treating medical source, and it was entitled to controlling
weight absent inconsistency with the medical evidence of record. See, Tilley v.
Astrue, 580 F.3d 675, 680-81 (8th Cir. 2009); Trossauer v. Chater, 121 F.3d
341, 343-44 (8th Cir. 1997); Ghant v. Bowen, 930 F.2d 633, 639 (8th Cir.
1991). It is also important to note that the starting point in determining the
date of onset of disability is the claimant's statement as to when the
disability began. SSR 83-20, 1983 WL 31249, at *2 (1983). "In determining
the date of onset of disability, the date alleged by the individual should be
used if it is consistent with all the evidence available." Id., at *3; see
Grebenick, 121 F.3d at 1200. Shepherd's opinion—which was entitled to
deference—supported Tyson's alleged date of onset of disability, which was
also entitled to deference in the absence of inconsistent evidence. No such
inconsistency was present.
MATERIALITY OF SUBSTANCE ABUSE
So, if July 1, 2011 was not the onset date for Tyson's disability, then
what was? Shepherd opined that it was June 24, 2009, but the ALJ found
that Tyson's substance abuse was a material cause of that disability until
August 24, 2010. The ALJ's conclusion is better-supported on this point, but
in the end, the problem is the same: there is insufficient evidence in the
record to warrant setting aside the opinion of a treating medical source.
The ALJ's analysis was necessary because Congress has eliminated
alcoholism or drug addiction as a basis for obtaining Social Security benefits.
Kluesner v. Astrue, 607 F.3d 533, 537 (8th Cir. 2010) (citing Pub. L. No. 104–
121, 110 Stat. 852–56 (1996)); see also, Vester v. Barnhart, 416 F.3d 886, 888
(8th Cir. 2005); Brueggemann v. Barnhart, 348 F.3d 689, 693 (8th Cir. 2003).
An individual is not considered "disabled" for purposes of obtaining
supplemental security income "if alcoholism or drug addiction would (but for
this subparagraph) be a contributing factor material to the Commissioner's
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determination that the individual is disabled." 42 U.S.C. 1382c(a)(3)(J); see
also 42 U.S.C. 423(d)(2)(C) (disability insurance benefits). The claimant has
the burden to prove that alcoholism or drug addiction is not a contributing
factor. Kluesner, 607 F.3d at 537; see also, Vester, 416 F.3d at 888;
Brueggemann, 348 F.3d at 693; Pettit v. Apfel, 218 F.3d 901, 903 (8th Cir.
2000). But, if the ALJ is unable to determine whether substance use
disorders are a contributing factor material to the claimant's otherwiseacknowledged disability, the claimant's burden has been met and an award of
benefits must follow. Kluesner, 607 F.3d at 537; Brueggemann, 348 F.3d at
693. In colloquial terms, on the materiality of alcoholism, a tie goes to Tyson.
See Brueggemann, 348 F.3d at 693; see also Kluesner, 607 F.3d at 537.
The key factor in determining whether drug addiction or alcoholism is
material to a determination of disability is whether the claimant would still
be found disabled if he or she stopped using drugs or alcohol. Pettit, 218 F.3d
at 902. And in this case, Tyson met her burden of showing that her
impairments would have been disabling, even in the absence of alcohol use,
by presenting Shepherd's opinion to that effect. But the ALJ discounted that
opinion, on two grounds. First, the ALJ credited the opinions of the two State
agency psychological consultants and non-treating psychologist, as mentioned
above. And, the ALJ noted, Tyson's condition improved when she abstained
from alcohol for any length of time.
The first State agency consultant, Lee Branham, Ph.D., opined in
August 2009 that Tyson was only moderately limited in certain aspects of her
ability to maintain concentration and persistence. T594-96. But, Branham
wrote, "her condition is currently at the markedly limiting level." T596 He
expected that with substance abuse treatment, Tyson could "return to
baseline or better functioning in less than 12 months." T596. Similarly, the
other State agency consultant, Patricia Newman, Ph.D., opined in April 2010
that Tyson was only moderately limited, but that "in the past, alcohol use has
interfered with understanding and memory during periods of intoxication."
T709-11. Newman "expected that [Tyson] will continue to improve from her
current status with continued treatment and abstinence from alcohol." T728.
And Patricia Blake, Ph.D., opined in April 2010 (based on an evaluation
performed on March 30) that Tyson had adequate attention and
concentration needed for task completion, but that a "sustained period of
sobriety will be necessary to determine the presence of any mental health
diagnoses." T702-05.
And at the time, those observations made perfect sense. Tyson was
drinking up to a pint of vodka a day, so it was reasonable to ascribe her
limitations to alcohol use. As the saying goes, "when you hear hoofbeats,
think horses, not zebras." But as the Eighth Circuit has recognized, "when
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the claimant is actively abusing alcohol or drugs," determining which
limitations would remain when the effects of the substance use disorders are
absent "will necessarily be hypothetical and therefore more difficult than the
same task when the claimant has stopped." Brueggemann, 348 F.3d at 69495; see also Kluesner, 607 F.3d 537. "Determining whether a claimant would
still be disabled if he or she stopped drinking is, of course, simpler if the
claimant actually has stopped." Pettit, 218 F.3d at 903; see also Vester, 416
F.3d at 890. And "even if long-term alcohol abuse causes a disability,
alcoholism will not be found 'material' to the finding of disability if the
disability remains after the claimant stops drinking." Id. at 904.
In this case, Branham, Newman, and Blake did not have the benefit of
observing Tyson during an extended period of sobriety for purposes of
determining what impairments remained. Shepherd did. While an ALJ may,
as previously noted, discount or even disregard the opinion of a treating
source where other medical assessments are supported by better or more
thorough medical evidence, that does not mean that an ALJ may discount or
disregard a treating source's opinion on the basis of other medical
assessments that are supported by inferior and less thorough medical
evidence. Cf. Reed, 399 F.3d at 921.
Nor is it surprising—or particularly meaningful—that Tyson's
impairments abated during her periods of sobriety. The Court accepts, as a
general proposition, that a claimant's improved condition during periods of
sobriety may be evidence supporting an ALJ's finding that the claimant's
substance abuse is material to his or her disability. E.g., Vester, 416 F.3d at
890. But it is also true that a claimant who is disabled by mental
impairments is likely to be even more impaired while abusing alcohol. The
fact that those impairments may subside somewhat when the claimant stops
drinking does not mean that the claimant was not disabled in the first place.
Cf. Pettit, 218 F.3d at 903. And while alcohol use was obviously a conflating
factor, there are some noteworthy similarities between Tyson's symptoms
before and after she stopped drinking. Confusion and forgetfulness were
recurrent observations. T581, 624, 645, 665, 700, 863. And hospital
admissions in September and October 2009 based on Tyson's confused mental
state, which at the time were attributed to alcohol intoxication, in retrospect
bear some resemblance to the February 2011 mental breakdown that brought
Tyson to the Immanuel Medical Center emergency room, as discussed above.
T643-45, 815-21. In other words, while it is true Tyson was more functional
when she was sober, there are some observations in the record that, in
hindsight, suggest that some of Tyson's impairments were present all along.
And most importantly, we have Shepherd's opinion—the opinion of a
medical source who treated Tyson for several months while she was still
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abusing alcohol, and then for several more months after she stopped
drinking. That is precisely the sort of "detailed, longitudinal picture of [the
claimant's] impairment(s)" that, under the Social Security Administration's
own regulations, require a treating medical source's opinion to be given
controlling weight. See, 20 C.F.R. § 404.1527(c)(2); Anderson, 696 F.3d at 793.
And the other factors that the Social Security Administration has identified
as controlling—the length of the treatment relationship and the frequency of
examination, the nature and extent of the treatment relationship,
supportability of the opinion, consistency of the opinion with the record as a
whole, and the specialization of the treating source—all weigh in Shepherd's
favor. See 20 C.F.R. 404.1527(c)(2). Shepherd is the only treating medical
source whose opinion is contained in the record, and hers is the only opinion
at all in the record that was rendered after Tyson stopped drinking.
It was neither surprising nor unfounded for Branham, Newton, and
Blake to believe—before Tyson stopped drinking—that her impairments
could largely be attributed to alcohol abuse. Shepherd, had she been asked at
the time, might well have said the same. If the record stopped there, the
ALJ's conclusion would certainly be supported by substantial evidence. But
the record does not stop there, and Shepherd's continued treatment of Tyson
put Shepherd in position to assess Tyson's condition before and after she
stopped drinking. Shepherd's opinion that Tyson suffered from disabling
impairments, even before she stopped drinking, is not inconsistent with the
medical evidence, and was entitled to controlling weight. The ALJ erred in
concluding otherwise.
Accordingly, the Court will reverse the Commissioner's decision, and
remand the case for an award of past-due benefits based upon an onset date
of disability of June 24, 2009.
IT IS ORDERED:
1.

The Commissioner's decision is reversed.

2.

This matter is remanded to the Commissioner pursuant to
sentence four of 42 U.S.C. § 405(g) for calculation and
award of past-due benefits based upon an onset date of
disability of June 24, 2009.

3.

A separate judgment will be entered.

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Dated this 27th day of March, 2014.
BY THE COURT:

John M. Gerrard
United States District Judge

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