EARLING v. COMMISSIONER OF SOCIAL SECURITY
Filing
17
OPINION. Signed by Judge Noel L. Hillman on 3/14/2016. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BRITTANY EARLING,
Plaintiff,
Civil No. 15-117(NLH)
v.
OPINION
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
APPEARANCES:
JASON LANELL THOMPSON
LEVENTHAL, SUTTON & GORNSTEIN, ESQS.
3800 HORIZON BLVD.
SUITE 101
TREVOSE, PA 19053-4947
On behalf of Plaintiff
MATTHEW JARED LITTMAN
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
300 SPRING GARDEN STREET
PHILADELPHIA, PA 19147
On behalf of Defendant
HILLMAN, District Judge
This matter comes before the Court pursuant to Section
205(g) of the Social Security Act, as amended, 42 U.S.C. §
405(g), to review the final decision of the Commissioner of the
Social Security Administration, denying Plaintiff’s application
for Disability Insurance Benefits and Supplemental Security
Income (“Social Security benefits”) under Title II and Title XVI
of the Social Security Act.
42 U.S.C. § 401, et seq.
The issue
before the Court is whether the Administrative Law Judge (“ALJ”)
erred in finding that there was “substantial evidence” that
Plaintiff was not disabled at any time since her alleged onset
date of disability, November 3, 2010.
For the reasons stated
below, this Court will affirm that decision.
I.
BACKGROUND AND PROCEDURAL HISTORY
On January 12, 2011, Plaintiff filed an application for
disability benefits, claiming that since November 3, 2010, she
is disabled and unable to work due to migraines, attentiondeficit hyperactivity disorder, generalized anxiety disorder,
depressive disorder, bipolar disorder, post-traumatic stress
disorder, adjustment disorder with mixed anxiety and depressed
mood, personality disorder, alcohol dependence, and
polysubstance dependence.
After a hearing before an ALJ, it was determined that
Plaintiff was not disabled, as she retained the ability to
perform unskilled work with certain restrictions.
appealed the decision.
Plaintiff
The Appeals Council denied Plaintiff’s
request for review, thus rendering the ALJ’s decision as final.
Plaintiff now seeks this Court’s review.
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II.
DISCUSSION
A.
Standard of Review
Under 42 U.S.C. § 405(g), Congress provided for judicial
review of the Commissioner’s decision to deny a complainant’s
application for Disability Insurance Benefits.
Shalala, 55 F.3d 900, 901 (3d Cir. 1995).
Ventura v.
A reviewing court
must uphold the Commissioner’s factual decisions where they are
supported by “substantial evidence.”
42 U.S.C. §§ 405(g),
1383(c)(3); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir.
2001); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000);
Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
Substantial evidence means more than “a mere scintilla.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)(quoting
Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)).
It
means “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”
Id.
The inquiry is not
whether the reviewing court would have made the same
determination, but whether the Commissioner’s conclusion was
reasonable.
See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.
1988).
A reviewing court has a duty to review the evidence in its
totality.
See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.
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1984).
“[A] court must ‘take into account whatever in the
record fairly detracts from its weight.’” Schonewolf v.
Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks
v. Secretary of Health & Human Servs., 847 F.2d 301, 303 (6th
Cir. 1988) (quoting Universal Camera Corp. V. NLRB, 340 U.S.
474, 488 (1951)).
The Commissioner “must adequately explain in the record his
reasons for rejecting or discrediting competent evidence.”
Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing
Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)).
The Third
Circuit has held that an “ALJ must review all pertinent medical
evidence and explain his conciliations and rejections.”
Burnett
v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).
Similarly, an ALJ must also consider and weigh all of the nonmedical evidence before him.
Id. (citing Van Horn v. Schweiker,
717 F.2d 871, 873 (3d Cir. 1983)); Cotter v. Harris, 642 F.2d
700, 707 (3d Cir. 1981).
The Third Circuit has held that access to the
Commissioner’s reasoning is indeed essential to a meaningful
court review:
Unless the [Commissioner] has analyzed all
evidence and has sufficiently explained the
weight he has given to obviously probative
exhibits, to say that his decision is
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supported by substantial evidence approaches
an abdication of the court’s duty to
scrutinize the record as a whole to
determine whether the conclusions reached
are rational.
Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978).
Although
an ALJ, as the fact finder, must consider and evaluate the
medical evidence presented, Fargnoli, 247 F.3d at 42, “[t]here
is no requirement that the ALJ discuss in its opinion every
tidbit of evidence included in the record,” Hur v. Barnhart, 94
F. App’x 130, 133 (3d Cir. 2004).
In terms of judicial review,
a district court is not “empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.”
Williams, 970 F.2d at 1182.
However, apart from the substantial
evidence inquiry, a reviewing court is entitled to satisfy
itself that the Commissioner arrived at his decision by
application of the proper legal standards.
Sykes, 228 F.3d at
262; Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983);
Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).
B.
Standard for Disability Insurance Benefits
The Social Security Act defines “disability” for purposes
of an entitlement to a period of disability and disability
insurance benefits as the inability to engage in any substantial
gainful activity by reason of any medically determinable
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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.
1382c(a)(3)(A).
See 42 U.S.C. §
Under this definition, a Plaintiff qualifies as
disabled only if his physical or mental impairments are of such
severity that he is not only unable to perform his past relevant
work, but cannot, given his age, education, and work experience,
engage in any other type of substantial gainful work which
exists in the national economy, regardless of whether such work
exists in the immediate area in which he lives, or whether a
specific job vacancy exists for him, or whether he would be
hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B)
(emphasis added).
The Commissioner has promulgated regulations for
determining disability that require application of a five-step
sequential analysis.
See 20 C.F.R. § 404.1520.
This five-step
process is summarized as follows:
1.
If the claimant currently is engaged in substantial
gainful employment, he will be found “not disabled.”
2.
If the claimant does not suffer from a “severe
impairment,” he will be found “not disabled.”
3.
If the severe impairment meets or equals a listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix
1 and has lasted or is expected to last for a
continuous period of at least twelve months, the
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claimant will be found “disabled.”
4.
If the claimant can still perform work he has done in
the past (“past relevant work”) despite the severe
impairment, he will be found “not disabled.”
5.
Finally, the Commissioner will consider the claimant’s
ability to perform work (“residual functional
capacity”), age, education, and past work experience
to determine whether or not he is capable of
performing other work which exists in the national
economy. If he is incapable, he will be found
“disabled.” If he is capable, he will be found “not
disabled.”
20 C.F.R. § 404.1520(b)-(f).
Entitlement to benefits is
therefore dependent upon a finding that the claimant is
incapable of performing work in the national economy.
This five-step process involves a shifting burden of proof.
See Wallace v. Secretary of Health & Human Servs., 722 F.2d
1150, 1153 (3d Cir. 1983).
In the first four steps of the
analysis, the burden is on the claimant to prove every element
of his claim by a preponderance of the evidence.
See id.
In
the final step, the Commissioner bears the burden of proving
that work is available for the Plaintiff: “Once a claimant has
proved that he is unable to perform his former job, the burden
shifts to the Commissioner to prove that there is some other
kind of substantial gainful employment he is able to perform.”
Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987); see Olsen v.
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Schweiker, 703 F.2d 751, 753 (3d Cir. 1983).
C.
Analysis
In this case, the ALJ found that Plaintiff has not engaged
in substantial gainful activity since the alleged onset of
disability (Step One).
The ALJ next found that Plaintiff’s
migraines, attention-deficit hyperactivity disorder, generalized
anxiety disorder, depressive disorder, bipolar disorder, posttraumatic stress disorder, adjustment disorder with mixed
anxiety and depressed mood, personality disorder, alcohol
dependence, and polysubstance dependence were severe (Step Two).
The ALJ then found that Plaintiff’s substance abuse and periods
of decompensation met the criteria of listings 12.04 and 12.09,
and that if Plaintiff stopped the substance abuse, her other
impairments would still be severe.
The other impairments,
however, did not meet the medical equivalence criteria of
listings 12.04, 12.06, or 12.09 (Step Three).
At Step Four, the
ALJ found that Plaintiff had the residual functional capacity
(RFC) to perform jobs at the unskilled level, with certain
nonexertional limitations, such as a night cleaner and laundry
packer, which jobs are in significant numbers in the national
economy (Step Five).
Plaintiff presents four arguments as to why the ALJ
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decision should be reversed:
(1) the ALJ did not consider her
Title II Disabled Adult Child (DAC) application for the time
period of November 4, 2011 through April 17, 2011, the day
before her 22nd birthday; (2) the ALJ erred in finding that
substance abuse was a contributing factor material to the
disability determination; (3) the ALJ erred by inconsistently
relying upon consultative examiner Gregory Coleman, Psy.D; and
(4) the ALJ improperly considered Plaintiff’s failure to comply
with treatment.
Contrary to Plaintiff’s arguments, the Court can find no
error in the ALJ’s decision.
In a detailed and comprehensive
decision, the ALJ properly supported his conclusion that
Plaintiff’s impairments were not totally disabling, as
demonstrated by the pertinent medical and non-medical evidence
that showed her ability to function when she stopped drinking
alcohol and using drugs.
The conclusion of the ALJ’s decision
succinctly explains his findings, which were detailed in the
substantive portion of his decision:
In sum, if the claimant stopped the substance use, the
above residual functional capacity assessment is supported
by the objective medical evidence, the medical treatment
history, the claimant's noncompliance and failure to pursue
additional treatment, the opinion evidence discussed above,
and the claimant's activities of daily living during
periods of remission. The objective evidence during
periods when the claimant was not abusing substances is not
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overly impressive. In fact, upon discharge from a
hospitalization, a mental status examination shows a
pleasant mood and full affect with improved insight and
judgment, intact memory, and no looseness of association or
flight of ideas (Exhibit B-6F). In addition, treatment
records show that the claimant struggled with medication
compliance and was terminated from counseling after missing
three of her group meetings; however, during periods of
compliance, the claimant reported that medication and
counseling were somewhat effective in managing her mental
symptoms (Exhibits B-lF, B-3F, B-7F, B-8F, and Testimony).
Nonetheless, the undersigned has given some weight to the
claimant's allegations and found the ability to perform
simple, routine, repetitive tasks on a sustained basis. As
for the claimant's migraine headaches, the record contains
infrequent complaints, normal objective findings, and
minimal treatment required. For instance, the claimant did
not testify to any symptoms related to this impairment and
physical examinations show no sensory deficits with no
motor weakness (Exhibits B-8F and B-9F). Even still, this
impairment has been considered when assessing the residual
functional capacity and appropriate limitations including
no exposure to flashing lights or lights brighter than that
typically found in an indoor work environment were
included. The undersigned also considered the claimant's
allegations of drowsiness caused by her medications and
limited her to no exposure to hazards such as heights and
moving machinery. Finally, the claimant's activities of
daily living support the limitations reflected in the
residual functional capacity. In this regard, the claimant
reported that she prepares meals, washes dishes, does
laundry, takes out the trash, and has no problems
performing her personal care and grooming. She also
indicated that she drives daily, attended classes at the
Reading Community College, goes shopping, and attends
twelve-step meetings and recovery events (Exhibit B-4E and
Testimony). Accordingly, the undersigned has determined
that the claimant's impairments and the restrictions caused
by them would not prevent her from performing the residual
functional capacity as defined above.
(R. at 11, Docket No. 8-2 at 38.)
Thus, with regard to Plaintiff’s argument that the ALJ
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erred in finding that substance abuse was a contributing factor
material to the disability determination, the Court disagrees.
In cases involving drug or alcohol addiction, “[a]n individual
shall not be considered to be disabled . . . 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.”
42 U.S.C. § 423(d)(2)(C).
The Social Security Administration advises adjudicators
assessing whether an individual’s substance abuse problems were
a factor material to the disability determination that “[t]he
most useful evidence ... is that relating to a period when the
individual was not using drugs/alcohol.”
Social Security
Administration, Questions and Answers Concerning DAA from the
07/02/96 Teleconference, No. EM–96200 (Aug. 30, 1996).
In this case, the ALJ detailed medical evidence and
Plaintiff’s own testimony regarding her ability to function when
she was under the influence and when she was sober.
The
differences in her abilities and mental state when she is sober
and when she is not sober are significant.
Even though
Plaintiff argues that her substance abuse cannot be detangled
from her mental impairments, that the substance abuse is a form
of self-medication of her mental impairments, and that
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hospitalization and therapy sessions were for both substance
abuse and mental disorders, and therefore her mental disorders
are severe and disabling regardless of her substance and alcohol
abuse, the record supports the ALJ’s view.
Moreover, the ALJ
did not find that Plaintiff did not suffer from any impairments
when she was sober, but rather that any totally disabling aspect
of Plaintiff’s impairments came from the substance abuse in
addition to the mental disorders.
The ALJ recognized that Plaintiff suffered from limitations
due to her impairments, and the ALJ even credited Plaintiff’s
conditions that were not fully supported by the medical
evidence, such as her migraines and medication side effects.
The whole of Plaintiff’s impairments were addressed in the
limitations imposed by the ALJ on her ability to perform
unskilled work, including restrictions on light, noise, heights,
change in duties and settings, and interaction with people.
Therefore, the ALJ did not err in his consideration of the
effect of Plaintiff’s substance abuse on her ability to work.
Plaintiff also contends that the ALJ erred by
inconsistently relying upon consultative examiner Gregory
Coleman, Psy.D.
In Step Three, the ALJ afforded Dr. Coleman’s
report more weight than other consultative reports.
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The ALJ
explained,
As for the opinion evidence, the State agency psychological
consultant determined that the claimant's impairments do
not preclude her from performing the basic demands of fulltime work in a stable environment (Exhibit B-2A). In
addition, upon discharge from the rehabilitation
facilities, the claimant was released to return to school
and work as well as full activity and usual duties
(Exhibits B-7F and B-8F). These opinions are given less
weight than that of Dr. Coleman, PsyD, a consultative
examiner, who indicated that the claimant has marked
limitation in making simple work-related decisions, marked
limitation in responding appropriately to work pressures,
and marked limitation in responding appropriately to
changes in a routine work setting (Exhibit B-3F).
(Docket No. 8-2 at 32.)
In the ALJ’s residual functional capacity analysis, while
assessing Plaintiff’s abilities if she stopped using drugs and
alcohol, the ALJ afforded Dr. Coleman’s report less weight than
the state consultative psychologist.
The ALJ explained,
As for the opinion evidence if the claimant stopped the
substance use, Dr. Coleman, PsyD, a consultative examiner
indicated that the claimant has marked limitation in making
simple workrelated decisions, marked limitation in
responding appropriately to work pressures, and marked
limitation in responding appropriately to changes in a
routine work setting (Exhibit B-3F). This opinion is given
less weight than the State agency psychological consultant
who determined that the claimant's impairments do not
preclude her from performing the basic demands of full-time
work in a stable environment (Exhibit B-2A).
(Docket No. 8-2 at 37.)
Although the ALJ appears to contradict himself, the context
in which the ALJ uses Dr. Coleman’s report demonstrates why Dr.
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Coleman’s report is appropriate to afford greater weight at Step
Three and lesser weight at Step Four.
At Step Three, the ALJ was tasked with determining whether
Plaintiff’s mental impairments met the listing requirements for
diminished interest in activities, feelings of worthlessness,
decreased energy, difficulty concentrating, and suicidal
ideation, as well as showing periods of decompensation for
extended duration.
The ALJ found Dr. Coleman’s report to be
“supported by the clinical signs when the claimant is abusing
substances to the extent requiring inpatient treatment,
including a depressed mood, dysphoric affect, a blunted affect,
intermittent eye contact, and limited insight and judgment.
It
is also more consistent with her treatment history of requiring
numerous inpatient stays due to substance abuse.”
8-2 at 32.)
(Docket No.
At Step Four, when considering Plaintiff’s ability
to work, the ALJ found that Dr. Coleman’s report was afforded
less weight than the state consultative psychologist because
that report was “more supported by the clinical signs including
a euthymic mood, full affect, intact cognition, and no suicidal
or homicidal ideation when the claimant is not engaging in
substance abuse to the extent she requires hospitalization
(Exhibits B-8F and B-9F).”
(Docket No. 8-2 at 37.)
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In short, the ALJ found that Dr. Coleman’s report was
supported by the evidence as it pertained to the effect of
Plaintiff’s substance abuse on her mental state and episodes of
decompensation, but Dr. Coleman’s report was not supported by
the evidence for the periods of time when Plaintiff was not
using alcohol or drugs.
The Court does not find any error by
the ALJ in this regard.
Plaintiff’s next argument for reversal of the ALJ’s
decision is similarly unavailing.
Plaintiff claims that the ALJ
improperly relied upon Plaintiff’s failure to comply with
treatment and medication as a factor in finding her able to
work.
Under the Regulations, a denial of benefits for failure
to follow a prescribed treatment plan may only be issued after
the ALJ finds a disabling impairment that precludes engaging in
any substantial activity.
Vega v. Comm'r of Soc. Sec., 358 F.
App'x 372, 375 (3d Cir. 2009) (citing SSR 82–59, “Individuals
with a disabling impairment which is amenable to treatment that
could be expected to restore their ability to work must follow
the prescribed treatment to be found under a disability, unless
there is a justifiable cause for the failure to follow such
treatment.”).
In other words, in order to deny benefits based
on non-compliance with a treatment plan, an ALJ must first
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determine that the plaintiff suffers from a disabling impairment
precluding any ability to work, and, second, that plaintiff
following the prescribed treatment for that impairment would not
preclude plaintiff from the ability to work.
No such analysis under SSR 82-59 was performed by the ALJ
in this case because his decision was not based on a finding
that Plaintiff’s disabilities were a result of a failure to
comply with a treatment plan, or that compliance with a
treatment plan would render Plaintiff not disabled.
Instead,
Plaintiff’s treatment, and then lack of treatment, was a factor
in the ALJ’s assessment of Plaintiff’s condition while sober and
while under the influence.
His consideration of her
noncompliance with treatment was also a factor in gauging
Plaintiff’s credibility. 1
The consideration of Plaintiff’s
treatment, and lack of treatment, in these two contexts is
appropriate. 2
1
In making a credibility determination as part of the evaluation
of a claimant's symptoms, an adjudicator may consider the
claimant less credible “if the medical reports or records show
that the individual is not following the treatment as prescribed
and there are no good reasons for this failure.” SSR 96–7p.
2
It is important to note that “it is a treating source who must
prescribe treatment in order for the issue of ‘failure’ to
arise,” SSR 82-59, and Plaintiff has not provided any medical
records of a treating physician.
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Finally, with regard to Plaintiff’s argument that the ALJ
failed to consider her Title II Disabled Adult Child (DAC)
application for the time period of November 4, 2011 through
April 17, 2011, the day before her 22nd birthday, the Court is
not convinced that Plaintiff affirmatively advanced a Title II
DAC claim along with her claim for benefits beginning November
3, 2010.
Even if Plaintiff did, the evidence in the record
encompasses those six months, as well as a year before and two
years beyond.
There is nothing in the record within those six
months that would change the analysis provided by the ALJ with
respect to Plaintiff’s disability onset date of November 3,
2010.
III. Conclusion
For the reasons expressed above, the ALJ’s determination
that Plaintiff is not totally disabled as of November 3, 2010,
is supported by substantial evidence.
is affirmed.
The decision of the ALJ
An accompanying Order will be issued.
Date: March 14, 2016
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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