Pearson v. Astrue
Filing
71
ORDER granting 60 Motion for Judgment on the Pleadings and denying 68 Motion for Judgment on the Pleadings. The case is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings. Signed by District Judge James C. Dever, III on 9/16/11. (Tripp, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTII CAROLINA
WESTERN DIVISION
5:1O-CV-143-D
JACKIE PEARSON,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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ORDER
Jackie Pearson ("plaintiff" or "claimant") appeals the final decision of the Commissioner
of Social Security ("Commissioner") denying her applications for a period of disability and
disability insurance benefits ("Dffi") and supplemental security income ("SSf') (collectively
"benefits"). 1 Each party has filed a motion for judgment on the pleadings [D.E. 60, 68]. As
explained below, the court grants plaintifrs motion for judgment on the pleadings, denies the
Commissioner's motion, and remands the final decision of the Commissioner for further
proceedings.
I.
Plaintiff applied for benefits on June 15, 2006, alleging a disability onset date of June 1,
2006, due to anxiety and depression. R. at 20, 126-34. The applications were denied initially on
October 31,2006, id. at 20,61,62, 79-83, and on reconsideration on May 24, 2007. Id. at 20,63,
64, 68-78. Plaintiff timely requested a hearing. Id. at 20, 65-67. On October 7, 2008, an
The statutes and regulations applicable to disability determinations for Dffi and SSI are in
most respects the same. The provisions relating to Dffi are found in 42 U.S.C. subch. fi, §§ 401, et
seq., and 20 C.F.R. pt. 404, and those relating to SSI in 42 U.S.C. subch. XVI, §§ 1381, et seq. and
20 C.F.R. pt. 416.
1
Administrative Law Judge ("ALl") held a hearing regarding plaintiffs applications for benefits. Id.
at 32-60.
On November 4, 2008, the ALJ found plaintiff not disabled and denied her applications for
benefits. Id. at 20-31. On December 9, 2008, plaintiff timely requested review by the Appeals
Council. Id. at 11-13. The Appeals Council denied plaintiffs request for review. Id. at 1-3. On
April 13, 2010, plaintiff timely filed this action for judicial review. See 42 U.S.C. § 405(g).
n.
A.
The Social Security Act ("Act") defines disability as the "inability to engage in any
substantial gainful activity by reason ofany medically detenninable physical or mental impainnent
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." Id. § 423(d)(1)(A); see id. § 1382c(a)(3)(A); Pass
v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). The regulations under the Act ("Regulations")
provide a five-step analysis that the ALI must follow when determining whether a claimant is
disabled. Essentially, this process requires the ALI to consider whether a claimant (1) is engaged
in substantial gainful employment; (2) has a severe impainnent; (3) has an impainnent that meets
or equals the requirements of a listed impainnent; (4) possesses the residual functional capacity
("RFC") to return. to his past relevant work; and (5) if not, whether he can perform other work in
light of his age, education, work experience, and RFC.
See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The claimant bears the burden of proof at steps one through four, but the burden
shifts to the Commissioner at step five. See,~, Bowen v. Yuckro,482 U.S. 137, 146n.5 (1987);
Pass, 65 F.3d at 1203.
2
If under this analysis a claimant is found to be disabled and there is medical evidence that
the claimant suffers from drug addiction or alcoholism, an additional determination is
required-namely, whether the drug addiction or alcoholism is a contributing factor material to the
determination of disability. 20 C.F.R. §§ 404.1535(a), 416.935(a). If the drug addiction or
alcoholism is found to be material, the claimant cannot be considered disabled under the Act. See
42 V.S.C.A. §§ 423(d)(2)(C), 1382c(a)(3)(J) (providing that a claimant "shall not be considered to
be disabled for purposes of this subchapter if alcoholism or drug addiction would . . . be a
contributing factor material to the Commissioner's determination that the individual is disabled").
The claimant must prove that the drug addiction or alcoholism is not material. See Brown v. Apfel,
192 F.3d 492, 498 (5th Cir. 1999); Bridgeman v. Astrue, No. 4:07-CV-81-D, 2008 WL 1803619,
at *2-3 (E.D.N.C. Apr. 21, 2008).
In making the materiality determination on drug addiction or alcoholism, the Commissioner
focuses on whether the claimant would still be disabled if the claimant stopped using drugs or
alcohol.
20 C.F.R. §§ 404.1535(b)(1), 416.935(b)(1).
To make this determination, the
Commissioner must evaluate which of the physical and mental limitations that the claimant has
when using drugs or alcohol would remain if the claimant stopped such use and then whether any
of the remaining limitations would be disabling. If the remaining limitations are found not
disabling, the claimant's drug addiction or alcoholism is deemed a contributing factor material to
the determination of disability, and the claimant is determined to be not disabled.
Id. §§
404. 1535(b)(2)(i), 416.935(b)(2)(i). On the other hand, ifthe remaining limitations are found to be
disabling, the drug addiction or alcoholism is deemed not to be material. Id. §§ 404.1535(b)(2)(ii),
416.935(b)(2)(ii).
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B.
Applying the five-step analysis of20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the ALJ
found at step one that plaintiffhad not engaged in substantial gainful activity since her alleged onset
of disability. R. at 23 , 2. At step two, the ALJ found that plaintiff had the following medically
determinable impairments that were severe within the meaning of the Regulations, 20 C.F.R. §§
404.1520(c) and 416.920(c): major depressive disorder, substance-induced mood disorder, panic
disorder, alcohol dependence, benzodiazepine (Le., Xanax) dependence, and personality disorder.
Id. at 23 ,3. At step three, the AU found that plaintiff's impairments, including her "substance and
alcohol dependence,,,2 met or medically equaled Listings 12.04 (affective disorders), 12.06 (anxiety
related disorders), and 12.08 (personality disorders). Id. at 23,4.
Because there was medical evidence that plaintiff has substance and alcohol dependence,
the AU then evaluated whether such dependence was a contributing factor material to the
determination of disability. See 20 C.F.R. §§ 404.1535(a), 416.935(a). The ALJ revisited the
relevant steps of the five-step analysis, evaluating the limitations that would remain if plaintiff
stopped her substance and alcohol dependence. The ALJ found at step two that plaintiff's remaining
limitations would be severe. Id. at 26,5. At step three, however, the ALJ determined that the
impairments would not meet or medically equal any listings ifthe substance and alcohol dependence
were in remission. Id. at 26 , 1. 3
2 The AU primarily used this term in referring to plaintiff's drug addiction and alcoholism,
although the AU used other terms as well (e.g., substance use, substance and alcohol use). For the
sake of consistency, the court uses "substance and alcohol dependence" herein unless the context
dictates otherwise.
1 The AU misnumbered this finding as I, instead of6. R. at 26. The next finding (regarding
plaintiff's RFC without substance and alcohol dependence) is numbered 6 and the subsequent
findings are numbered sequentially. See id.
4
The ALI then determined that with plaintifF s substance and alcohol dependence in
remission, plaintiff would have the RFC to perform a full range of work at the medium exertional
level with various limitations. 4 Id. at 27 ~ 6. Based on this RFC, the ALI found at step four that if
she stopped her substance and alcohol dependence, plaintiff could not perform her past relevant
work, with the possible exception of her work as a check sorter. Id. at 29 ~ 7. s
At step five, the ALI adopted the testimony ofa vocational expert and found that, ifplaintiff
stopped her substance and alcohol dependence, she would be capable of making a successful
adjustment to work that exists in significant numbers in the national economy, including laundry
laborer, hospital cleaner, and laboratory equipment cleaner. Id. at 30 ~ 11. The ALI therefore found
that plaintifF s limitations remaining ifshe stopped her substance and alcohol dependence would not
be disabling. Id. The ALI concluded that plaintifF s substance and alcohol dependence is a
contributing factor material to the determination ofdisability and that plaintiff is therefore not under
a disability. Id. at 30-31
-4
~
12.
The limitations provided for in the RFC are as follows:
[T]he claimant could stand and walk for 6 hours; the claimant could sit for 6 hours;
the claimant could lift and carry and push and pull 50 pounds occasionally and 25
pounds frequently; the claimant could perform simple, routine, repetitive tasks; the
claimant could have occasional contact with coworkers; the claimant could have no
dealing with the public; the claimant would be unable to work at a production rate;
the claimant would be unable to work at jobs requiring complex decision making,
constant change, or dealing with crisis situations.
R. at 27 ~ 6.
Although this finding states that plaintiff"would be able" to perform her past relevant work,
the explanation ofthe finding and the ALI's progression to the next step in the sequential analysis
indicate that he determined plaintiff would not be able to perform her past relevant work. See R. at
29 ~ 7, ~ 11.
5
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m.
In reviewing the cross-motions for judgment on the pleadings, the court "must uphold the
factual findings ofthe [AU] ifthey are supported by substantial evidence and were reached through
application ofthe correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see 42
U.S.C. § 405(g). "Substantial evidence" is "more than a mere scintilla of evidence but may be
somewhat less than a preponderance." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).
Under the substantial evidence standard, the court may not "undertake to re-weigh conflicting
evidence, make credibility determinations, or substitute [its] judgment for that ofthe [ALJ]." Crai~,
76 F.3d at 589. Before the court can determine whether a decision is supported by substantial
evidence, it must ascertain whether the Commissioner has considered all relevant evidence and
sufficiently explained the weight given to probative evidence. See. M, Sterlin~ Smokeless Coal
Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision
is impossible without an adequate explanation ofthat decision by the administrator." DeLoatche v.
Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
Plaintiff contends that the AU's decision should be reversed because:
(1) the AU
erroneously found plaintiff's substance and alcohol dependence to be a contributing factor material
to her disability and (2) the ALJ erroneously assessed plaintiff's credibility. PI. 's Mem. Supp. Mot.
J. Plead. 13-16. The court does not reach these issues because the ALJ's decision fails to permit
meaningful judicial review.
The principal deficiencies relate to the ALJ's analysis of the medical evidence upon which
the ALJ relied in determining plaintiff's RFC if she were in remission from substance and alcohol
dependence. The ALJ stated, in part, that he "has given substantial weight [to] the opinions ofthe
State agency medical experts, which were independent of any formal diagnoses of the claimant's
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substance or alcohol dependence." R. at 29 ~ 6. The AU, however, failed to identify these medical
experts or provide record citations to their evaluations. See id. The ALJ may be alluding to a single
psychological consultant, Grady Dale, Jr., Ed.D., who completed a psychiatric review technique
form, id. at 192-205, and a mental RFC assessment form, id. at 1037-40, on plaintiff, both dated
October 31, 2006. The AU also may be referring to psychiatrist Leonard Hertzberg, M.D., who
completed an evaluation ofplaintiff for the Maryland Disability Determination Service.
Although the AU gave the state agency expert opinions substantial weight, the AU nowhere
discusses them. If the ALJ was referring to Dr. Dale, the AU failed to note that Dr. Dale did not
examine plaintiff, and the opinions of non-examining sources are generally given relatively less
weight. See 20 C.F.R. §§ 404.1527(d)(I), 416.927(d)(I); Soc. Sec. R. 96-6p, 1996 WL 374180, at
*2 (July 2, 1996); see also Gochenour v. Astrue, Civ. Act. No. 5:10CV00133, 2011 WL 3820156,
at *4, *5 (W.D. Va. Aug. 26, 2011). Moreover, Dr. Dale's evaluation may be based on Dr.
Hertzberg's October 2006 assessment, and Dr. Hertzberg conducted a one-time examination of
plaintiff without the benefit ofany ofher records. See R. at 181. Oddly, the ALJ did not discuss the
relationship (if any) between these two evaluations.
The ALJ also stated that the expert opinions-again, presumably including Dr. Dale's-
''were independent ofany formal diagnosis ofthe claimant's substance or alcohol dependence." Id.
at 29. The AU, however, did not explain this statement, and its meaning is not clear. Cf. id. at 185,
192,204. For example, the AU may have interpreted Dr. Dale's evaluation to mean that plaintiff
was in remission. This conclusion appears to be substantiated by the strong similarity between Dr.
Dale's rating ofplaintiff on the so-called "B criteria" and those found by the AU when assuming
plaintiff to be in remission. Id. at 27. Dr. Dale found plaintiff to have mild restrictions in activities
of daily living, moderate difficulties in maintaining social functioning and in maintaining
7
concentration, persistence, and pace, and one or two episodes of decomposition. Id. at 202. The
ALl's ratings, characterized as the highest possible level of limitation, were the same, except that
he rated her with moderate restrictions in activities ofdaily living. Id. at 27,5. Moreover, the ALJ
may have relied on Dr. Dale's opinions to separate the mental restrictions and limitations imposed
by the substance and alcohol dependence and plaintiff's other mental disorders. See id. This step
is essential in establishing whether substance and alcohol dependence is a contributing factor
material to the determination ofdisability. However, this court will not guess concerning the ALJ's
analysis. Rather, the ALJ should state clearly how (if at all) he considered Dr. Dales's opinions and
Dr. Hertzberg's opinions and explain the rationale for whatever weight (if any) he gave to either.
The ALl's treatment of the opinions of Karlus Artis, M.D. is also ambiguous. Dr. Artis, a
psychiatrist who treated plaintiff from May 2008 through at least October 2008, completed an
evaluation of plaintiff dated October 2, 2008. Id. at 1157-61. Dr. Artis found plaintiff to have
substantially more severe limitations than those found by Dr. Dale. The opinions ofa treating source
such as Dr. Artis are generally entitled to more weight than those ofa non-treating source, let alone
anon-examiningsource.
See,~,
20C.F.R. §§ 404. 1527(d)(2), 416.927(d)(2); Soc. Sec. R. 96-6p,
1996 WL 374180, at *2. The ALl, however, stated that he gave Dr. Artis's opinions less weight
"because Dr. Artis did not mention, much less address, the issue of plaintiff's history of substance
and alcohol dependence." Id. at 29 , 6. The ALl continued, "Thus, it is unclear whether his
assessment of the claimant's limitations on the form that he completed on October 2,2008 can be
considered the claimant's baseline without factoring in the claimant's substance and alcohol
dependence." Id.
The ALl's statement that he gave Dr. Artis's opinions less weight is odd in that the ALJ, in
fact, appears to have relied on them significantly. As indicated, at step 2 ofthe sequential analysis,
8
the ALJ assumed plaintiff was in remission and found that plaintiff would still have severe
impainnents. The ALJ then stated that plaintiff's "medical records indicate that the claimant would
continue to experience depression, panic attacks, and the effects of her personality disorders." Id.
at 26 ~ 5. The ALJ then discussed Dr. Artis's October 2,2008 evaluation. Id. It is unclear why the
ALJ would rely on Dr. Artis's evaluation at step 2 ifthe ALJ could not determine whether Dr. Artis's
opinions related to plaintiff while in remission.
The opinions of Dr. Dale, Dr. Hertzberg, and Dr. Artis, along with those of treating
psychiatrist Karen Ballou, M.D.,6 appear to comprise the medical evidence upon which the ALJ
bases his RFC determination assuming plaintiff is in remission. The ALJ found that plaintiff's
treatment records after August 2007 (when plaintiff had moved from Maryland to North Carolina)
"are of limited value in assessing the intensity, persistence, and limiting effects of the claimant's
symptoms attributable to her mental impairments apart from substance and alcohol dependence."
Id. at 28. The rationale for this finding is unclear. Moreover, the ALJ does not address what weight,
if any, he gave to the opinions of plaintiff's general physician when she lived in Maryland, Robert
Kroopnick, M.D., as expressed in his evaluation dated August 14,2006.
kL. at 179-80. In that
evaluation, Dr. Kroopnick offered several opinions to the effect that plaintiff's anxiety and
depression inhibited her ability to work. Id. at 180.
As for the ALJ's analysis at step 3, the ALJ did not cite any medical evidence to determine
plaintiff's baseline paragraph B criteria Instead, he looked at "her baseline for the years she was
working and not abusing alcohol or drugs." Id. at 26 ~ 1. The ALJ, however, does not indicate the
specific evidence to which he refers, and it is not otherwise apparent. Moreover, although using this
Dr. Ballou stated expressly in a January 17, 2008 assessment of plaintiff following up on
her discharge in December 2007 from Halifax Regional Medical Center that plaintiffhad substance
6
induced mood disorder, as well as dependence on Xanax and alcohol. Id. at 1055.
9
baseline, the ALJ later found at step 4 that plaintiff could not perfonn her past relevant work, with
one possible exception. See id. at 29 , 7. Ifthe baseline the ALJ used was based on plaintiff when
she was working, it would seem that she would be able to perfonn her past relevant work. The ALJ
does not address this apparent discrepancy.
Finally, the ALJ refers to several occasions on which plaintiff purportedly failed to take
medications or otherwise follow the prescribed treatment. Id. at 25-26 , 4. Such failure without
good reason can be a basis for fInding a claimant not disabled. See 20 C.F.R. §§ 404.1530,416.930.
The ALJ does not explain the extent to which, if any, this failure was a basis for his determination
that plaintiff is not disabled.
The failure ofthe ALJ to adequately explain his decision precludes the court from conducting
a meaningful review of the decision and requires remand of this case. See, e.g., DeLoatche, 715
F .2d at 150. On remand, the Commissioner shall address the defIciencies noted herein. The court
expresses no opinion on how Commissioner should resolve these issues on remand.
IV.
The court cannot conduct meaningful judicial review. Accordingly, plaintiff's motion for
judgment on the pleadings [D.E. 60] is GRANTED, the Commissioner's motion for judgment on
the pleadings [D.E. 68] is DENIED, and the case is remanded to the Commissioner pursuant to
sentence four of 42 U.S.C. § 405(g) for further proceedings.
SO ORDERED. This J..{Q. day of September 2011.
~ . .h~VLA
JSC.DEVERill ~
United States District Judge
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