Blaylock v. Commissioner of Social Security Administration

Filing 19

Memorandum Opinion and Order. The Court reverses the opinion of the Commissioner and remands the case for further proceedings consistent with this opinion. Magistrate Judge Nancy A. Vecchiarelli on 5/24/2013. (G,W)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

WALTER BLAYLOCK,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO.

1:12-cv-2537

MAGISTRATE JUDGE VECCHIARELLI

MEMORANDUM OF OPINION

This case is before the magistrate judge by consent. Plaintiff, Walter Blaylock
(“Blaylock”), challenges the final decision of the Commissioner of Social Security
(“Commissioner”) denying Blaylock’s application for Supplemental Security Income
("SSI") under Title XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 423 and 1381(a).
This court has jurisdiction pursuant to 42 U.S.C. § 405(g).
For the reasons set forth below, the court REVERSES the decision of the
Commissioner remands the case for further action consistent with this opinion.
I. Procedural History
Blaylock applied for SSI on December 2, 2009 alleging disability as of March 23,

2006 due to bipolar disorder, epilepsy, diabetes, pancreatitis, and borderline glaucoma.
The Commissioner denied Blaylock’s application initially and upon reconsideration.
Blaylock timely requested an administrative hearing.
Administrative Law Judge Kendra Kebler (“ALJ”) held an administrative hearing
on June 3, 2011. Blaylock was represented by counsel at the hearing. Hershel Goren
testified as a medical expert (“ME”), and Mark Anderson testified as a vocational expert
(“VE”). On June 21, 2011, the ALJ found that Blaylock was not disabled. Blaylock
requested a review of the ALJ’s decision by the Appeals Council. When the Appeals
Council declined further review on August 30, 2012, the ALJ’s decision became the final
decision of the Commissioner.
Blaylock filed an appeal to this court on October 11, 2012. Blaylock alleges that
the ALJ erred because she (1) failed to evaluate Blaylock’s complaints of abdominal
pain resulting from his chronic pancreatitis and (2) improperly found that Blaylock’s
alcoholism was material to his disability. The Commissioner denies that the ALJ erred.
II. Evidence
A.

Personal and Vocational Evidence
Blaylock was born on November 30, 1964 and was 48 years old at the time of the

ALJ’s decision. He has a sixth grade education and no past relevant work.1
B.

Medical Evidence
Blaylock has a long history of chronic pancreatitis secondary to alcohol abuse.

Between March 23, 2006, the alleged date of disability, and June 3, 2011, the date of

1

Blaylock reported past relevant work as a press operator. The ALJ found,
however, that Blaylock had no past relevant work.
2

Blaylock’s hearing, Blaylock visited the emergency room and/or was admitted to the
hospital for intoxication, symptoms of alcohol abuse, and/or abdominal or epigastric
pain caused by pancreatitis secondary to alcoholism on the following dates: May 12,
2006 (Tr. at 2609-13); May 16, 2006 (Tr. at 2949-51); May 19, 2006 (Tr. at 2946-47);
May 28, 2006 (Tr. at 2600-05); June 11, 2006 (Tr. at 2590-99); September 10, 2006 (Tr.
at 2588-89); September 13, 2006 (Tr. at 2581-87); October 7, 2006 (Tr. at 2578-80);
October 8, 2006 (Tr. at 2574-77); November 1, 2006 (Tr. at 2571-73); January 5, 2007
(Tr. at 2568-70); January 7-8, 2007 (Tr. at 1034-62, 2952-53); January 14, 2007 (Tr. at
2874-80); January 22, 2007 (Tr. at 1015-33); January 29, 2007 (Tr. at 1831-39); March
24, 2007 (Tr. at 997-1014, 2956-58); March 26, 2007 (Tr. at 2954-55); April 3, 2007 (Tr.
at 984-96); April 10, 2007 (Tr. at 2565-67); April 11, 2007 (Tr. at 976-83); twice on April
14, 2007 (Tr. at 2560-61, 2562-64); April 15, 2007 (Tr. at 968-75, 2960-61); April 17,
2007 (Tr. at 964-69); April 22, 2007 (Tr. at 2556-59); April 23, 2007 (Tr. at 953-62,
2551-55); April 24, 2007 (Tr. at 2549-50); April 27, 2007 (Tr. at 941-52); May 1, 2007
(Tr. at 2547-48); May 2, 2007 (Tr. at 2542-46); May 4, 2007 (Tr. at 2539-41); May 8,
2007 (Tr. at 934-40); May 9, 2007 (Tr. at 919-33); May 10, 2007 (Tr. at 912-18, 2532-);
May 15, 2007 (Tr. at 2529-31); May 16, 2007 (Tr. at 1821-28); May 18, 2007 (Tr. at
898-911); May 20, 2007 (Tr. at 877-97, 2962-64); May 24, 2007 (Tr. at 2523-28); May
29, 2007 (Tr. at 2515-22); twice on June 3, 2007 (Tr. at 2501-05, 2506-14); June 11,
2007 (Tr. at 1811-20); June 14, 2007 (Tr. at 2495-2500); July 1, 2007 (Tr. at 2491-94);
July 19, 2007 (Tr. at 862-76, 2965-67); August 5, 2007 (Tr. at 852, 855-61); August 10,
2007 (Tr. at 832-47, 853-54, 2968-69); August 12, 2007 (Tr. at 820-31); August 13,
2007 (Tr. at 1802-10); August 21, 2007 (Tr. at 804-19); August 24, 2007 (Tr. at 7933

803); September 26, 2007 (Tr. at 775-92); September 27, 2007 (Tr. at 2970-72);
October 9, 2007 (Tr. at 766-74, 2973-74); October 29, 2007 (Tr. at 756- 65); November
5, 2007 (Tr. at 1795-1801); November 25, 2007 (Tr. at 748-55); January 1, 2008 (Tr. at
738-46); January 16, 2008 (Tr. at 728-37); January 20, 2008 (Tr. at 710-27, 2975-78);
January 28, 2008 (Tr. at 698-709); February 3, 2008 (Tr. at 691-97); February 7, 2008
(Tr. at 684-90); February 8, 2008 (Tr. at 673-82); March 21, 2008 (Tr. at 655-72); March
24, 2008 (Tr. at 1788-93); March 28, 2008 (Tr. at 1863-64); April 9, 2008 (Tr. at 635-54,
2979-82); May 9, 2008 (Tr. at 626-34); May 27, 2008 (Tr. at 617-25); May 30, 2008 (Tr.
at 1779-87); June 24, 2008 (Tr. at 609-16); July 3, 2008 (Tr. at 2485-88); July 13, 2008
(Tr. at 599-608); July 30, 2008 (Tr. at 592-98); August 3, 2008 (Tr. at 574-91, 2983-86);
August 6, 2008 (Tr. at 2479-84); August 15, 2008 (Tr. at 561-73, 2987-91); August 18,
2008 (Tr. at 547-59); August 20, 2008 (Tr. at 1771-1778); August 31, 2008 (Tr. at 175661); September 14, 2008 (Tr. at 534-46); September 18, 2008 (Tr. at 527-33, 2469-73);
September 24, 2008 (Tr. at 517-25); September 25, 2008 (Tr. at 1749-55); October 12,
2008 (Tr. at 502-16, 2992-93); October 13, 2008 (Tr. at 2467-68); October 22, 2008 (Tr.
at 488-501); October 23, 2008 (Tr. at 2994-95); October 28, 2008 (Tr. at 479-87);
October 31, 2008 (Tr. at 469, 472-78); November 3, 2008 (Tr. at 439-68, 470-71, 29963003); November 7, 2008 (Tr. at 429-38); November 16, 2008 (Tr. at 418-28);
November 28, 2008 (Tr. at 409-17); November 29, 2008 (Tr. at 404, 406-08); December
2, 2008 (Tr. at 377-85); December 4, 2008 (Tr. at 332, 364-76, 386-403, 405);
December 9, 2008 (Tr. at 355-63); December 16, 2008 (Tr. at 326, 329-31, 334-51);
December 22, 2008 (Tr. at 317-25); December 26, 2008 (Tr. at 307-16); December 29,
2008 (Tr. at 297-306, 327-28); January 3, 2009 (Tr. at 2461-66); January 5, 2009 (Tr.
4

AT 2449-60); January 21, 2009 (Tr. at 1866-78); January 27, 2009 (Tr. at 2447-48);
February 3, 2009 (Tr. at 2168-90); February 11, 2009 (Tr. at 2191-2203); February 22,
2009 (Tr. at 2442-46); March 7, 2009 (Tr. at 2437-41); March 13, 2009 (Tr. at 2431-36);
March 16, 2009 (Tr. at 2419-30); March 18, 2009 (Tr. at 2414-18); twice on March 20,
2009 (Tr. at 2407-11, 2412-13); April 4, 2009 (Tr. at 3004-10); April 8, 2009 (Tr. at
301213); April 13, 2009 (Tr. at 3011-12); April 14, 2009 (Tr. at 2866-73); April 16, 2009
(Tr. at 2393-2406); April 17, 2009 (Tr. at 3014-15); April 19, 2009 (Tr. at 2386-92); April
21, 2009 (Tr. at 2380-85); May 10, 2009 (Tr. at 2374-79); May 15, 2009 (Tr. at 302425); May 20, 2009 (Tr. at 3023-24, 3026-27); twice on May 22, 2009 (Tr. at 2839-47,
2848-52, 3032-33); May 23, 2009 (Tr. at 3028-29); June 1, 2009 (Tr. at 2853-65); June
3, 2009 (Tr. at 2369-73); June 7, 2009 (Tr. at 2204-14); June 9, 2009 (Tr. at 2831-38);
June 14, 2009 (Tr. at 2364-68); June 26, 2009 (Tr. at 2356-61, 2824-30); June 30, 2009
(Tr. at 2805-23); July 10, 2009 (Tr. at 2801-04); July 17, 2009 (Tr. at 2354-55); July 29,
2009 (Tr. at 1890-93); August 3, 2009 (Tr. at 2349-53); August 7, 2009 (Tr. at 2215-27);
August 9, 2009 (Tr. at 2791-2800); August 26, 2009 (Tr. at 3034-39); September 13,
2009 (Tr. at 2780-90); September 16, 2009 (Tr. at 2770-79); September 26, 2009 (Tr. at
1862-63); October 29, 2009 (Tr. at 2746-53); October 21, 2009 (Tr. at 1879-89, 216365); October 30, 2009 (Tr. at 2239-46); October 31, 2009 (Tr. at 2737-45); November 5,
2009 (Tr. at 3040-44); November 6, 2009 (Tr. at 2166-67); November 28, 2009 (Tr. at
2718-36); December 3, 2009 (Tr. at 2343-48); December 4, 2009 (Tr. at 2701-17);
December 23, 2009 (Tr. at 2698-2700); December 25, 2009 (Tr. at 2690-97); December
26, 2009 (Tr. at 2678-89); December 28, 2009 (Tr. at 2311-42); January 2, 2010 (Tr. at
2669-77); January 12, 2010 (Tr. at 2660-68); January 14, 2010 (Tr. at 1922-33);
5

January 17, 2010 (Tr. at 1933-37); January 18, 2010 (Tr. at 2646-59); January 22, 2010
(Tr. at 2158-62); February 4, 2010 (Tr. at 1938-53); February 5, 2010 (Tr. at 2247-67);
February 6, 2010 (Tr. at 1954-62); February 11, 2010 (Tr. at 2268-76); February 12,
2010 (Tr. at 2307-12); February 13, 2010 (Tr. at 1969-82); February 16, 2010 (Tr. at
2884-86); February 21, 2010 (Tr. at 2638-45); February 27, 2010 (Tr. at 1983-97);
March 9, 2010 (Tr. at 1998-2009); March 22, 2010 (Tr. at 3709-14); March 27, 2010 (Tr.
at 2010-21); March 30, 2010 (Tr. at 2022-35); April 7, 2010 (Tr. at 2036-47); April 11,
2010 (Tr. at 2048-54); April 14, 2010 (Tr. at 2695-3708); June 5, 2010 (Tr. at 3528-34);
June 6, 2010 (Tr. at 3797-98); June 15, 2010 (Tr. at 2055-67); June 17, 2010 (Tr. at
3521-22, 3796-97); twice on July 2, 2010 (Tr. at 2068-86); July 4, 2010 (Tr. at 3680-94);
July 5, 2010 (Tr. at 3768-79); July 13, 2010 (Tr. at 2087-2103); July 25, 2010 (Tr. at
2104-16); July 27, 2010 (Tr. at 3535-37); July 28, 2010 (Tr. at 3794-95); August 9, 2010
(Tr. at 2117-26); August 12, 2010 (Tr. at 2556-67, 3793-94, 3809-); August 20, 2010
(Tr. at 2127-42); August 21, 2010 (Tr. at 3538-55); August 24, 2010 (Tr. at 2143-54,
3666-79); August 26, 2010 (Tr. at 3764-67); September 6, 2010 (Tr. at 2659-65);
September 17, 2010 (Tr. at 3823-31); September 22, 2010 (Tr. at 3755-63); October 10,
2010 (Tr. at 3634-58); October 29, 2010 (Tr. at 3734-46); November 2, 2010 (Tr. at
3726-33); November 13, 3633-43); November 28, 2010 (Tr. at 3622-32); December 7,
2010 (Tr. at 3791-92, 4453-63); December 17, 2010 (Tr. at 3927-30); December 18,
2010 (Tr. at 3934-36); December 22, 2010 (Tr. at 3938-55); January 19, 2011 (Tr. at
3985-99); January 27, 2011 (Tr. at 4000-10); February 1, 2011 (Tr. at 4417-29);
February 8, 2011 (Tr. at 4408-16); February 16, 2011 (Tr. at 4011-24); February 19,
2011 (Tr. at 4391-February 22, 2011 (Tr. at 4368-90); February 27, 2011 (Tr. at 40276

41, 4494-4510); March 2, 2011 (Tr. at 4361-67); March 7, 2011 (Tr. at 4314-22); March
13, 2011 (Tr. at 4042-49, 4511-18); March 18, 2011 (Tr. at 4346-60); March 26, 2011
(Tr. at 4335-45); March 31, 2011 (Tr. at 4525-33, 4802-10); April 8, 2011 (Tr. at 453437); May 5, 2011 (Tr. at 4719-29); and May 13, 2011 (Tr. at 4753-62).2 During these
visits, Blaylock often described his pain as 10 on a 10-point scale.
The very great majority of Blaylock’s hospital visits included vomiting, a smell of
alcohol, toxicological detection of alcohol, intoxication, and/or self-reported recent
alcohol use. During these visits, doctors repeatedly diagnosed Blaylock as suffering
from alcohol abuse or alcohol intoxication. Tr. at 284, 288, 305, 315, 327-28, 329, 332,
334-35, 366, 384, 399, 417, 448, 484, 490, 506, 533, 537, 563, 577, 608, 666, 679, 690,
696, 704, 734, 763, 801, 826, 887, 915, 917, 928, 946, 958, 967, 990, 1019, 1761,
1773, 1789, 1828, 1832, 1862, 1864, 1867, 1880, 1980, 1994, 2007, 2041, 2064, 2082,
2085, 2091, 2113, 2124, 2140, 2152, 2166, 2178, 2200, 2257, 2309; 2345, 2351, 2389,
2396, 2409, 2416, 2433, 2450, 2481, 2502, 2507, 2530, 2545, 2548, 2550, 2557, 2569,
2577, 2589, 2592, 2613; 2685, 2692, 2738, 2751, 2811, 2826, 2842, 2858-59, 2868,
2876, 2951, 3015, 3023, 3029, 3038, 3042, 3521, 3546, 3634, 3660, 3710, 3737, 3764,
3771, 3794, 3798, 3948, 3992, 4016, 4035, 4045, 4316, 4337, 4370, 4393, 4410, 4419,
4502, 4515, 4528, 4589, 4721, 4780, and 4805. His alcohol use has caused mild
peripheral alcoholic neuropathy. Tr. at 1892-93.
A number of objective tests confirm Blaylock’s chronic pancreatitis. Abdominal xrays on February 5, 2010, June 18, 2010, and March 3, 2011 showed findings
2

This list excludes certain emergency room visits which resulted in a diagnosis of
abdominal pain or gastritis of unknown origin.
7

consistent with chronic pancreatitis. Tr. at 2267, 3583, and 4367. CT scans on July 4,
2010 and December 17, 2010 also produced findings consistent with chronic
pancreatitis. Tr. at 3684 and 4118. Hospital treatment for Blaylock’s symptoms of
pancreatitis have typically included the use of IV fluids and such pain relievers as
Dilaudid and Percocet. See, e.g., Tr. at 2019, 3791-3792. Blaylock’s reports of alcohol
use in relation to his abdominal pain and the opinions of attending physicians link
Blaylock’s alcohol use to flare-ups of abdominal pain. See, e.g., Tr. at 3591.
Blaylock also suffers from back problems. On October 22, 2008, a CT scan
revealed considerable arthritic changes at C5-6 and C6-7, with mild posterior
subluxation of C5 on C6 and mild arthritic changes at C3-4. Tr. at 1117-18. On
January 12, 2010, a CT scan revealed a fracture of the left L1-2 transverse processes
and a bilateral L5 pars defect. Tr. at 2661-2662.
In approximately May 2009, Blaylock was diagnosed with type 2 diabetes. Tr. at
1892. Many of his later emergency room visits include hyperglycemia and/or the
notation that his diabetes is uncontrolled. See, e.g., 4371, 4432, 4441, and 4454.
Elevated glucose levels sometimes appear with high levels of alcohol. See, e.g., Tr. at
4386, 4393-94. On some occasions, high glucose levels are also accompanied by a
failure to take prescribed insulin in addition to drinking alcohol. See, e.g., Tr. at 4395
and 4431.
Examining psychologists have also diagnosed Blaylock as suffering from
cognitive and affective disorders. On September 9, 2010, psychologist Richard N.
Davis interviewed Blaylock at the request of the Bureau of Disability Determination (“the
Bureau”). Tr. at 3486-91. Blaylock said that he was in school only through sixth grade
8

and that he received only failing grades. He told Davis that he had been employed no
more than intermittently, had spent time in prison for burglary, and had been arrested
100 times or more, mostly for misdemeanor offenses against public order. Blaylock
asserted that he had trouble following directions, getting along with people in authority,
and getting along with fellow workers. According to Blaylock, any money he earns is
used to buy alcohol. He stated that he suffered from diabetes, pancreatitis, and high
blood pressure and listed his medications as insulin, Neurontin, a medication for high
blood pressure that he could not name, and at least one other prescribed medication.
Davis found Blaylock to be generally coherent, with loose verbal structure and
some circumstantial and tangential presentation and with some poverty of speech. He
presented information slowly but was responsive to questions with no flight of ideas.
Blaylock reported difficulty sleeping and occasional crying spells. He also suffered from
some depression when he “thinks about having been molested by one of his mother’s
boyfriends.” Tr. at 3488. Blaylock reported feeling worthless and hopeless. In-office
tests revealed limitations in short-term memory and the ability to think logically.
Moreover, according to Davis, Blaylock “possesses almost no ability whatsoever to think
in the abstract.” Tr. at 3488. He added that Blaylock “presents as being very limited
intellectually. Rarely do I see a person who signs his name and misspells it.” Tr. at
3489.
On a typical day, according to Blaylock, he will rise at 6:00 a.m., shave and
dress, then shower and meditate. He watches television news and plays with the dog.
He may go grocery shopping with the female friend with whom he lives. Blaylock and
his friend are not in a sexual relationship. His friend is receiving disability benefits, and
9

Blaylock gives her his food stamps. He does not date, go to classes, or look for work,
nor does he visit family. He has no interests or hobbies. According to Davis, Blaylock
is able to take care of his personal needs, and his appearance is satisfactory.
Davis diagnosed Blaylock’s psychological difficulties as alcohol dependence, an
adjustment disorder with mixed disturbance of emotions and conduct, and lower
borderline intellectual function. He summarized Blaylock’s work-related mental abilities
as follows:
1.

2.

3.

4.

The individual is limited in his abilities to relate satisfactorily to others. . . .
Not being able to get along with others seems to be an inherent part of his
personality and then he has abused alcohol throughout much or most of
his life which only exacerbates that situation. He appears to be markedly
impaired in this area.
He is able to understand, remember and follow simple instructions when
not under the influence of substances. However, getting alcohol seems to
be his top priority. He does work around the neighborhood in order to get
a few dollars to buy the alcohol. He appears to be moderately impaired in
this area when not under the influence of substances.
He is limited in his abilities to maintain attention, concentrate, persist at
tasks and perform them because of seemingly being under the influence
of substances much or most of the time. It would seem to this examiner
that his intake of alcohol is limited only to that extent of his having very
little money to buy alcohol. He appears to be moderately impaired in this
area.
He has difficulties dealing with the stresses and pressures associated with
his day to day living. He says he is always depressed. He appears to be
moderately impaired in this area.

Tr. at 3489-90. Davis opined that Blaylock would not be capable of managing any
benefits and assigned him a Global Assessment of Functioning (“GAF”) of 55.3

3

A GAF of between 51 and 60 indicates moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) or moderate difficulty in social,
occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).
10

On April 4, 2010,4 Willa Caldwell, M.D., completed a Physical Residual
Functional Capacity Assessment of Blaylock. Tr. at 3471-78. Dr. Caldwell found that
Blaylock could lift or carry up to 50 pounds occasionally and up to 25 pounds frequently.
She also found that he could stand or walk for 6 hours in a normal eight-hour workday,
sit for hours in a normal eight-hour workday, and was unlimited in his ability to push or
pull. She concluded that Blaylock had no postural, manipulative, visual, communicative,
or environmental limitations. A reviewing physician, Maria Congbalay, M.D., affirmed
this opinion on January 19, 2011. Tr. at 3838.
On September 21, 2010, Aracelis Rivera, Psy.D., completed a Mental Residual
Functional Capacity Assessment and Psychiatric Review Technique assessing
Blaylock’s mental capabilities. Tr. at 3496-3513. Dr. Rivera found Blaylock to be
suffering from organic mental disorders, an adjustment disorder with mixed disturbance
of emotions and conduct, continuous alcohol dependence, and borderline intellectual
functioning. She opined that Blaylock is moderately limited in the ability to understand
and remember short and simple instructions; moderately limited in the ability to carry out
very short and simple instructions; moderately limited in the ability to maintain attention
and concentration for extended periods; moderately limited in the ability to perform
activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances; moderately limited in the ability to work in coordination of
proximity with others without being distracted by them; moderately limited in the ability
to make simple work-related decisions; moderately limited in the ability to complete a
4

The year is not entirely certain, as the transcript page number “3478" obscures the
last two digits of the year of the assessment.
11

normal workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and
length of rest periods; moderately limited in the ability to accept instructions and
respond appropriately to criticism from superiors; moderately limited in the ability to get
along with co-workers or peers without distracting them or exhibiting behavioral
extremes; moderately limited in the ability to respond appropriately to changes in the
work setting; moderately limited in the ability to travel to unfamiliar places or use public
transportation; markedly limited in the ability to understand and remember detailed
instructions; markedly limited in the ability to carry out detailed instructions; markedly
limited in the ability to interact appropriately with the general public; and markedly
limited in the ability to set realistic goals or make plans independently of others.
According to Dr. Rivera, Blaylock is moderately restricted in his activities of daily living;
has moderate difficulties in maintaining social functioning; and has moderate difficulties
in maintaining concentration, persistence, and pace. She concluded:
The clt can perform [simple repetitive tasks] in a non-public wk setting where
changes are infrequent and he is not expected to perform tasks w rapid speed or
to meet strict wk production quotas. . . . With increased sobriety his functioning is
likely to improve. He should not wk in establishments that sell alcoholic
beverages or in places where he may have easy access to alcohol.
Tr. at 3499 (abbreviations in the original).
A reviewing psychiatrist, Katherine Fernandez, Psy.D, affirmed Dr. Rivera’s
opinion on January 19, 2011. Tr. at 3839. In addition, Dr. Fernandez noted that in
several respects Blaylock’s behavior undercut the credibility of his complaints of pain
and supported a belief that those complaints were merely attempts to receive pain
medication.
12

C.

Hearing
At the hearing, Blaylock testified that he had been sober for almost two months.

Tr. at 64, 71. He credited Ability for enabling him to forego alcohol, although Abilify did
not lessen the depression which had been causing him to drink. Tr. at 64-65. Blaylock
also testified that his depression also gives him “impulsive energy,” and that he isolates
himself to avoid directing that energy at others. Tr. at 65. He stated that although he
watches television, he merely stares at it rather than paying attention. Tr. at 65. He is
unable to concentrate on reading. Tr. at 65-66. According to Blaylock, he suffers from
chronic and debilitating stomach pain that involves his pancreas, wraps around to his
back, and creates nauseating pain in his groin. Tr. at 66-67. He added that this pain
incapacitates him and frequently causes him to go to the hospital. Tr. at 67-68.
Blaylock stated that for the past six months he has had trouble with his left
shoulder and left hand, which is his dominant hand. Blaylock testified that he was
unable to pick up a cup of coffee, turn a door knob, or tie a shoe. Tr. at 68. He further
testified that he was unable to work a 40-hour week, stand for more than 20 minutes, or
sit for more than 20 minutes. Tr. at 68-69. He thought that he could not lift more than
15 pounds or that it was not safe for him to drive a car. Tr. at 70. Blaylock testified that
he was currently taking Abilify, Lisinopril for high blood pressure, hydroxine for anxiety,
and Tramadol and Percocet for pain. Tr. at 80-82.
The ALJ asked the VE to imagine a hypothetical individual with no past relevant
work experience and marginal education, limited to light work, unable to climb ladders or
scaffolds, unable to kneel, unable to perform fine fingering with the left hand, and who
could reach forward, overhead, or to handle with his left hand only as an assist. The
13

ALJ further limited the hypothetical individual to simple and repetitive tasks and limited
the individual to work that did not involve commercial driving, did not involve exposure to
such hazards as heights or heavy machinery, did not involve more than occasional and
superficial interaction with the public, was relatively unchanging in work setting, was low
stress, and was familiar and static in tasks and demands. When asked if there were
jobs that such an individual could perform, the VE responded that such an individual
could perform the job of machine tender, injection molding machine tender, blow
molding machine tender, and some others. Tr. at 85-86. When the ALJ limited the
hypothetical to very simple repetitive tasks, the VE opined that there would be no
commercial work for such an individual.
Blaylock’s attorney asked the VE if the hypothetical individual could perform the
above-stated jobs if the individual were limited to the sedentary level of exertion, and
the VE responded, “[T]hat’s going to erode the base away.” Tr. at 87. When asked if
there would be work for the hypothetical individual if he would miss work for one day a
week, the VE answered that there would not be.
The ME testified that Blaylock has not had seizures since 2009 and that he
currently suffered from chronic pancreatitis, left radial neuropathy that Blaylock declined
to treat, substance abuse, and an alcohol-induced mood disorder. Tr. at 90-92. He
also noted that Blaylock suffered from diabetes but that it was not accompanied by
sufficient complications to constitute a severe impairment. Tr. at 93. The ME also
found that while a diagnosis of left radial neuropathy existed in the record, there was
insufficient evidence to determine its extent or whether it persisted to the present. Tr. at
93-94. When the ALJ asked whether any of Blaylock’s medically-determinable
14

impairments meet a listed impairment at 20 CFR Ch. III, Part 404, Subpart P, Appendix
1 (“the listings”), he responded that Blaylock’s alcohol-induced mood disorder would
meet the listing for 12.04A1 in combination with 12.09. Tr. at 92.
III. Standard for Disability
A claimant is entitled to receive benefits under the Act when he establishes
disability within the meaning of the Act. 20 C.F.R. § 416.905; Kirk v. Sec’y of Health &
Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered disabled when
he cannot perform “substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12 months.”
20 C.F.R. § 416.905(a). To receive SSI benefits, a recipient must also meet certain
income and resource limitations. 20 C.F.R. §§ 416.1100 and 416.1201.
The Commissioner reaches a determination as to whether a claimant is disabled
by way of a five-stage process. First, the claimant must demonstrate that he is not
currently engaged in “substantial gainful activity” at the time he seeks disability benefits.
Second, the claimant must show that he suffers from a “severe impairment” in order to
warrant a finding of disability. A “severe impairment” is one which “significantly limits . .
. physical or mental ability to do basic work activities.” Third, if the claimant is not
performing substantial gainful activity, has a severe impairment that is expected to last
for at least twelve months, and the impairment meets a listed impairment, the claimant
is presumed to be disabled regardless of age, education or work experience. 20 C.F.R.
§§ 404.1520(d) and 416.920(d)(2000). Fourth, if the claimant’s impairment does not
prevent him from doing her past relevant work, the claimant is not disabled. For the fifth
15

and final step, even if the claimant’s impairment does prevent him from doing his past
relevant work, if other work exists in the national economy that the claimant can
perform, the claimant is not disabled. Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir.
1990).
IV. Summary of Commissioner’s Decision
In determining that Blaylock was not disabled, the ALJ made the following
relevant findings:
1.

Mr. Blaylock has not engaged in substantial gainful activity since
December 2, 2009, the application date (20 CFR 416.920(b) and
416.971).

2.

Mr. Blaylock has the following severe impairments: alcohol dependence,
chronic pancreatitis, diabetes, left sided neuropathy, history of seizure
disorder, and alcohol induced mood disorder.

3.

Mr. Blaylock does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1.

4.

After careful consideration of the entire record, I find that, based on all of
his impairments, including the substance use disorder, Mr. Blaylock has
the residual functional capacity to perform less than the full range of light
work as defined in 29 C.F.R. § 416.967(b). Specifically, he can lift 10
pounds frequently and 20 pounds occasionally. He can stand or walk for
6 hours of an 8-hour workday and sit for 6 hours of an 8-hour workday.
He can occasionally climb stairs or ramps but he cannot climb ladders or
scaffolds. He cannot kneel. He can reach forward or overhead or handle
using his left hand only as an assist. He cannot perform fine fingering with
the left hand. He cannot do work that involves commercial driving or
exposure to hazards such as unprotected heights or uncovered industrial
machinery. He is limited to simple 1-3 step tasks. He is not able to carry
out or remember detailed instructions, or to keep an ordinary routine
without special supervision, or to make simple work-related decisions.
The work should have no interaction with the public, and involve no
changes in the work setting or tasks.

5.

Mr. Blaylock has no past relevant work.
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6.

Mr. Blaylock was born on November 30, 1964 and was 45 years old,
which is defined as a younger individual age 18-49, on the date he filed
the application.

7.

Mr. Blaylock has a marginal education and is able to communicate in
English.

8.

Transferability of job skills is not an issue because Mr. Blaylock does not
have past relevant work.

9.

Considering his age, education, work experience, and residual functional
capacity based on all of the impairments, including the substance abuse
disorders, there are no jobs that exist in significant numbers in the national
economy that he can perform.

10.

If Mr. Blaylock stopped the substance use, the remaining limitations would
cause more than a minimal impact on his ability to perform basic work
activities; therefore, Mr. Blaylock would continue to have a severe
impairment or combinations of impairments.

11.

If Mr. Blaylock stopped the substance use, he would still not have an
impairment or combination of impairments that meets or medically equals
any of the listed impairments listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1.

12.

If Mr. Blaylock stopped the substance use, he would have the residual
functional capacity to perform less than the full range of light work as
defined in 20 C.F.R. § 416.967(b). Specifically, he can lift 10 pounds
frequently and 20 pounds occasionally. He can stand or walk for 6 hours
of an 8-hour workday and sit for 6 hours of an 8-hour workday. He can
occasionally climb stairs or ramps but he cannot climb ladders or
scaffolds. He cannot kneel. He can reach forward or overhead or handle
using his left hand only as an assist. He cannot perform fine fingering with
his left hand. He cannot do work that involves commercial driving or
exposure to hazards such as unprotected heights or uncovered industrial
machinery. He is limited to simple, routine repetitive tasks in a low-stress
relatively unchanging environment, defined as work that is familiar and
static in its type of tasks and demands, with no more than occasional and
superficial interaction with the public.

13.

As indicated above, Mr. Blaylock does not have past relevant work.

14.

As indicated above, transferability of job skills is not an issue because Mr.
Blaylock does not have past relevant work.
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15.

If Mr. Blaylock stopped the substance use, considering his age, education,
work experience, and residual functional capacity, there would be a
significant number of jobs in the national economy that Mr. Blaylock could
perform.

16.

Because Mr. Blaylock would not be disabled if he stopped the substance
use (20 C.F.R. § 416.920(g)), Mr. Blaylock’s substance use disorder is a
contributing factor material to the determination of disability. Thus, Mr.
Blaylock has not been disabled within the meaning of the Social Security
Act at any time from the date he filed the application through the date of
this decision.

Tr. at 36-56. The ALJ rejected the ME’s opinion that Blaylock’s alcohol-induced mood
disorder would meet the listing for 12.04A1 in combination with 12.09. She also found
Blaylock to be credible with respect to his limited abilities to concentrate and get along
with others, but she found that his statements regarding the intensity, persistence, and
limiting effects of his symptoms were not credible to the extent that they were
inconsistent with the ALJ’s residual functional capacity assessment.
V. Standard of Review
This Court’s review is limited to determining whether there is substantial evidence
in the record to support the administrative law judge’s findings of fact and whether the
correct legal standards were applied. See Elam v. Comm’r of Soc. Sec., 348 F.3d 124,
125 (6th Cir. 2003) (“decision must be affirmed if the administrative law judge’s findings
and inferences are reasonably drawn from the record or supported by substantial
evidence, even if that evidence could support a contrary decision.”); Kinsella v.
Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983). Substantial evidence has been
defined as “[e]vidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence but may be
somewhat less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th
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Cir. 1966); see also Richardson v. Perales, 402 U.S. 389 (1971).
VI. Analysis
Blaylock argues that the ALJ erred because she (1) failed to evaluate Blaylock’s
complaints of abdominal pain resulting from his chronic pancreatitis and (2) improperly
found that Blaylock’s alcoholism was material to his disability. The Commissioner
denies that the ALJ erred.
A.

Whether the ALJ properly evaluated Blaylock’s claims of abdominal pain
Blaylock contends that the ALJ failed properly to evaluate Blaylock’s claims of

abdominal pain due to chronic pancreatitis. The Commissioner rephrases this
argument as an allegation that the ALJ failed to evaluate Blaylock’s subjective
complaints related to his physical impairments and denies that the ALJ so erred.
The Sixth Circuit in Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994), most clearly
stated the test which courts must use in reviewing the Commissioner’s determinations
of the credibility of an applicant’s statements about pain and disability. The court
reviewed the pertinent regulations at 20 C.F.R. § 404.1529 and summarized the
applicable test as follows:
First, we examine whether there is objective medical evidence of an underlying
medical condition. If there is, we then examine: (1) whether objective medical
evidence confirms the severity of the alleged pain arising from the condition; or
(2) whether the objectively established medical condition is of such a severity
that it can reasonably be expected to produce the alleged disabling pain.
Id. at 1038-39 (quoting Duncan v. Secretary of Health and Human Servs., 801 F.2d 847,
853 (6th Cir. 1986)). The court specifically noted that the second part of this test is
satisfied if the plaintiff satisfies either alternative after finding objective evidence of an
underlying medical condition. Thus, the test “does not require . . . 'objective evidence of
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the pain itself.'" Felisky, 35 F.3d at 39 (quoting Green v. Schweiker, 749 F.2d 1066,
1071 (3d Cir. 1984)) (footnote omitted). The court also summarized the factors that
should be considered in determining whether the established medical condition can
reasonably be expected to produced the alleged disabling pain:
(i) Your daily activities . . .
(ii) The location, duration, frequency, and intensity of your pain . . .
(iii) Precipitating and aggravating factors . . .
(iv) The type, dosage, effectiveness, and side effects of any medication you take
or have taken to alleviate your pain or other symptoms . . .
(v) Treatment, other than medication, you receive or have received for relief of
your pain . . .
(vi) Any measures you use or have used to relieve your pain . . .
Felisky, 35 F.3d at 1039-40. The court added that “the opinions and statements of the
claimant's doctors” are also relevant to the Commissioner’s and the reviewing court’s
determination. Id. at 1040. In addition, credibility becomes a particularly important
consideration at the second step of the analysis, and the court will generally defer to the
ALJ’s credibility assessment. See Walters, 127 F.3d at 531.
In the present case, the ALJ properly described the two-stage test laid out in
Felisky and Duncan. He then stated the following:
If Mr. Blaylock stopped the substance abuse, I find that his medically
determinable impairments could reasonably be expected to produce the alleged
symptoms; however, his statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to the extent they are
inconsistent with the residual functional capacity assessment for the reasons
explained below.
Tr. at 48. In three subsequent paragraphs, the ALJ discussed Blaylock’s alleged
inability to concentrate and his inability to be around others, concluding with “Mr.
Blaylock’s ability to concentrate and get along with others would improve if he stopped
using alcohol, and that without alcohol . . . he is capable of performing simple, routine
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repetitive tasks . . . .” The ALJ’s concluding paragraph of his analysis reads as follows:
In sum, the above residual functional capacity assessment is supported by Mr.
Blaylock’s activities of daily living, the objective medical evience, the report from
the examining psychologist . . ., the State Agency physicians’ opinions . . ., and
the State Agency psychologists’ opinions . . ., all of which suggest greater
sustained capacity than described by Mr. Blaylock. Mr. Blaylock’s subjective
complaints and alleged limitations are not fully persuasive and he retains the
capacity to perform work activities with the limitations set forth above.
Tr. at 49.
The ALJ does not recite Blaylock’s allegations of pain; does not examine whether
objective medical evidence in the record confirms the severity of the alleged pain arising
from Blaylock’s pancreatitis; does not examine whether Blaylock’s pancreatitis is of such
a severity that it can reasonably be expected to produce the alleged disabling pain; and
does not use any of the factors suggested by Felisky to assess the credibility of
Blaylock’s allegations of pain. Indeed, the only discussion of Blaylock’s pain appearing
in the reports referenced by the ALJ appears in Dr. Caldwell’s Physical Residual
Functional Capacity Assessment and consists entirely of the following: “Assessment:
Acute on abdominal pain,” Tr. at 3473, and “[Blaylock] does complain of pain which is in
excess of the objective findings and considerd [sic] partially credible,” Tr. at 3476. As
this assessment says nothing regarding the extent to which Blaylock’s allegations
regarding his admittedly acute abdominal pain are credible, and as Dr. Caldwell offers
no basis for her opinion, this is far too slim a reed to support the ALJ’s RFC
assessment.
Given that Blaylock often described his pain to emergency room personnel as a
10 on a scale of 10 and given the strength of the pain medications with which he was
treated, any assessment of Blaylock’s RFC deserves an explicit and thorough
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examination of the credibility of his allegations of pain. The ALJ has not performed such
an analysis. For this reason, the case must be remanded to the ALJ for a proper
analysis of the credibility of Blaylock’s allegations of pain and a reassessment of his
RFC in light of that analysis.
B.

Whether the ALJ improperly found that Blaylock’s alcoholism was material to his
disability
Blaylock contends that the ALJ erred in finding that his alcoholism was material

to his disability because, according to Blaylock, his condition would not improve if he
were to stop drinking. The Commissioner denies this contention.
The Act prohibits an individual from receiving disability benefits if drug or alcohol
abuse is a contributing factor material to the individual’s disability. 42 U.S.C. §§
423(d)(2)(C), 1382c(a)(3)(J). When the ALJ determines that an individual is disabled
and the record demonstrates a history or drug or alcohol abuse, the ALJ must
determine whether the individual’s substance abuse is a contributing factor to the
determination of disability and whether the individual would still be disabled if the
substance abuse stopped. 20 C.F.R. §§ 404.1535(a), 416.935(a); see also SSR 13-2P,
2013 WL 621536; SSR 82-60. If the ALJ determines that a claimant would still be
disabled if the substance abuse stopped, the ALJ must conclude that the substance
abuse was not a contributing factor material to the determination of disability and should
award benefits. 20 C.F.R. §§ 404.1535(b)(ii), 416.935(b)(ii). But if the ALJ determines
that a claimant would not be disabled if the substance abuse stopped, the ALJ must
conclude that the substance abuse was a contributing factor material to the
determination of disability and should not award benefits. 20 C.F.R. §§ 404.1535(b)(i),
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416.935(b)(i).
In determining whether a claimant would be disabled if the substance abuse
stopped, the ALJ’s method varies depending upon whether the claimed impairment is
physical or mental. If a claimant has a physical impairment and the ALJ determines that
the impairment is the sort that is likely to improve with abstinence, the ALJ may consider
the medical opinions of treating or nontreating sources regarding the likely effects that
abstinence would have on the impairment. SSR 13-2P, 2013 WL 621536 at *7. The
ALJ may not adopt a medical opinion about whether the impairment would improve
unless that opinion is supported, although the opinion may legitimately be supported
solely by the medical source’s knowledge and expertise. The relevant social security
ruling emphasizes that the burden is always on the plaintiff to prove disability, but the
section of the ruling addressing the probable results of abstinence on physical
impairments ends with the following paragraph: “We will find that DAA5 is not material
to the determination of disability and allow the claim if the record is fully developed and
the evidence (including medical opinion evidence) does not establish that the claimant's
physical impairment(s) would improve to the point of nondisability in the absence of
DAA.” SSR 13-2P, 2013 WL 621536 at *7.
If the claimant has a mental impairment, the method is somewhat different. The
regulations hold that research data cannot be used to reliably predict whether any given
claimant’s disorder would improve if the claimant abstains from substance abuse. Thus,
although the ALJ must determine whether the substance abuse is material to the
5

“DAA” stands for “Drug Addiction and Alcoholism.” See SSR 13-2P, 2013 WL
621536 at *1.
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claimant’s disability, and ALJ may not rely “exclusively on medical expertise and the
nature of a claimant's mental disorder.” SSR 13-2P, 2013 WL 621536 at *7. Rather,
the ALJ must follow the usual case development rules and procedures in assembling
evidence of whether substance abuse is material to disability. See 20 CFR §§
404.1512, 404.1513, 416.912, and 416.913. In addition, periods of abstinence are
relevant to determining what a claimant’s RFC would be in the absence of the
substance abuse. SSR 13-2P, 2013 WL 621536 at *7. Again, the section of the
relevant social security ruling addressing the probable results of abstinence on mental
impairments ends with the following paragraph: “We will find that DAA is not material to
the determination of disability and allow the claim if the record is fully developed and the
evidence does not establish that the claimant's co-occurring mental disorder(s) would
improve to the point of nondisability in the absence of DAA.” Id.
The ALJ must provide sufficient information so that a subsequent reviewer
considering the evidence in the record can understand the reasons for the ALJ’s
determination regarding materiality and whether the claimant would be disabled if the
claimant stopped the substance abuse. Id. Credibility determinations in cases involving
substance abuse do not differ from credibility determinations in other cases. Id. (citing
SSR 96-7p for guidance).
In the present case, although the ALJ found that Blaylock suffered from serious
impairments other than his substance abuse and that those impairments would produce
the symptoms Blaylock alleges, the ALJ also found that Blaylock’s statements about the
intensity, persistence, and limiting effects of his symptoms were not fully credible to the
extent they were inconsistent with the ALJ’s estimate of the severity of Blaylock’s
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mental impairments in the absence of substance abuse. The ALJ determined that, in
the absence of substance abuse, Blaylock’s ability to relate to others would improve,
although he would still have moderate difficulties in relating to others. The ALJ also
determined that Blaylock’s concentration, ability to persist, and pace of work would
improve in the absence of substance abuse, although, again, he would still have
difficulties in this area. In addition, the ALJ determined that without the substance
abuse Blaylock would have no episodes of decompensation. The ALJ cited the reports
of Davis and Dr. Rivera and the opinion of Dr. Fernandez in justifying his conclusions,
all of which described the areas in which Blaylock’s drinking aggravated his mental
impairments. Tr. at 47, 48-49. From his findings regarding Blaylock’s mental condition
absent his substance abuse, the ALJ determined that the substance abuse was material
to the disability determination, because in the absence of his substance abuse Blaylock
would not be disabled.
Blaylock objects to the finding that his substance abuse is material to the
disability determination for two reasons: (1) there are five occasions in the record
during which Blaylock reported to the emergency room complaining of abdominal pain
even though he had not been drinking and (2) when the evidence regarding a claimant’s
condition in the absence of substance abuse is uncertain, the presumption should favor
the claimant. The Commissioner responds that the ALJ complied with controlling
regulations and longstanding policy in determining that Blaylock’s substance abuse was
material to both his alleged physical and mental impairments.
Despite physicians’ opinions in the record that Blaylock’s alcohol abuse
aggravated his pancreatitis, the ALJ did not assess whether Blaylock’s pancreatitis is a
25

physical impairment of the sort that would likely result in a reduction in Blaylock’s pain if
Blaylock abstained from alcohol, nor did the ALJ cite the medical opinions of treating or
nontreating sources regarding the likely effects that abstinence would have on
Blaylock’s pain from pancreatitis. Moreover, as the chief symptom of pancreatitis is
pain, the ALJ’s failure to perform a proper analysis of the credibility of Blaylock’s
allegations of pain further undermines the ALJ’s opinion with respect to whether
Blaylock would be disabled with respect to his physical impairments if the substance
abuse stopped. This case must be remanded to the ALJ to perform a complete analysis
of whether Blaylock would be disabled with respect to his pain from pancreatitis if the
substance abuse stopped.
Because the ALJ failed to perform a proper assessment of whether Blaylock
would be disabled if the substance abuse stopped, the issue of whether the
presumption should favor the claimant when the evidence regarding a claimant’s
condition in the absence of substance abuse is uncertain is moot. The court need not,
therefore, address that question.
VII.
For the reasons set forth above, the court REVERSES the opinion of the
Commissioner and REMANDS the case for further proceedings consistent with this opinion.
IT IS SO ORDERED.

Date: May 24, 2013

s/ Nancy A. Vecchiarelli
Nancy A. Vecchiarelli
U.S. Magistrate Judge

26