DAVIS v. COMMISSIONER OF SOCIAL SECURITY
Filing
20
MEMORANDUM OPINION re: 14 MOTION for Summary Judgment filed by TRACEY B. DAVIS, and 18 MOTION for Summary Judgment filed by COMMISSIONER OF SOCIAL SECURITY. Signed by Judge William L. Standish on 11/15/2011. (md)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TRACEY BRENDA DAVIS,
Plaintiff,
vs.
Civil Action No. 10-1480
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION
I.
INTRODUCTION
Pending before the Court are cross-motions for summary judgment
filed by Plaintiff Tracey Brenda Davis and Defendant Michael J.
Astrue, Commissioner of Social Security.
Plaintiff seeks review of
final decisions by the Commissioner denying her claims for disabili ty
insurance benefits ("DIB") under Title II of the Social Security Act,
42 U.S.C. §§ 401 et seq., and supplemental security income benefits
("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381
et seq.
For the reasons discussed below,
granted and Plaintiff's motion is
I I .
Defendant's motion is
denied~
BACKGROUND
A.
Factual Background
Plaintiff Tracey Davis was born on September 28 1
(Certified Copy of Transcript
Security
Administration l
of
Docket
Proceedings before the
No.
61
"Tr.
I
II"
at
147.)
1964.
Social
After
graduating from high school in 1983, Ms. Davis worked as a data entry
clerk until 2005.
(Tr. 152, 155.)
She later earned a certificate
as a nursing assistant in 2003 and worked at a nursing home in
Pittsburgh, Pennsylvania.
(Tr. 26, 155.)
In June 2006, Ms. Davis reported to her medical providers that
although she had been working steadily, she was not making enough
money to make financial ends meet.
(Tr. 296.)
She was unable to
pay her rent and lost her apartment.
She relapsed into using drugs
and alcohol, both of which had been a problem since her youth, and
asked to be voluntarily admitted to a dual diagnosis unit at Mercy
Behavioral
Health
Services,
seeking
treatment
suicidal thoughts, and polysubstance abuse.
three years, Ms.
for
(Id.)
depression,
Over the next
Davis continued to seek repeated in-patient and
community-based treatment for these problems.
B.
Procedural Background
On
May
IS,
2008,
Ms.
Davis
filed
applications
for
supplemental security income and disability insurance benefits,
alleging disability as of September 1,
2005,1 due to depression,
post-traumatic stress disorder ("PTSD"), anxiety, bipolar disorder,
paranoia, and suicidal thoughts.
Administration
("SSA")
(Tr. 151.)
The Social Security
denied both applications on September 8,
At the hearing before the ALJ, Plaintiff modified her alleged onset date
of disability to May 15, 2008.
(Tr. 24.)
2
2008, reasoning that although she had been diagnosed wi th depression
and anxiety and could not perform her past work as a data processing
clerk,
there were other unskilled jobs she could perform.
(Tr.
48-58.)
Plaintiff
then
timely
Administrative Law Judge
2010,
requested
(\\ALJ"),
a
hearing
Davis, who was represented by counsel, testi
Pennsylvania.
Ms.
ed, as did an impartial
(\\VE"), Samuel E. Edelmann, M.Ed.
Judge Koster
issued his decision on April 22, 2010, again denying benefits.
7-20.)
an
which was held on February 23,
before Judge Guy Koster in Pi ttsburgh,
vocational expert
before
(Tr.
On September 16, 2010, the Social Security Appeals Council
advised Ms. Davis that it had chosen not to review the ALJ' s decision,
(Tr. 1-5.)
finding no reason under its rules to do so.
the
April
22,
2010
opinion
became
Commissioner for purposes of review.
v. Barnhart, 399 F.3d 546, 549-550
Apfel, 530 U.S.
103, 107
(2000).
the
final
Therefore,
decision
of
the
42 U. S. C. § 405 (h) i Rutherford
citing Sims v.
(3d Cir. 2005),
On November 5,
2010,
Plaintiff
led suit in this Court seeking judicial review of the decision.
C.
Jurisdiction
This
§
1383(c) (3)
Court
has
jurisdiction
by
virtue
of
42
U.S.C.
(incorporating 42 U.S.C. § 405(g)} which provides that
an individual may obtain judicial review of any final decision of
the Commissioner by bringing a civil action in the district court
3
of the United States for the judicial district in which the plaintiff
resides.
III. STANDARD OF REVIEW
The scope of review by this Court is limited to determining
whether the Commissioner applied the correct legal standards and
whether the record,
as a whole,
contains substantial evidence to
support the Commissioner's findings of fact.
42 U.S.C.
§
405(g);
Richardson v. Perales, 402 U.S. 389 (1971); Schaudeck v. Comm'r of
Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999).
Findings of fact
by the Commissioner are considered conclusive if they are supported
by "substantial evidence," a standard which has been described as
requiring
more
than
a
"mere
scintilla"
of
evidence,
that
is,
equivalent to "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."
Richardson, id. at 401.
"A single piece of evidence will not satisfy the substantiality test
if the [ALJ]
ignores, or fails to resolve a conflict, created by
countervailing evidence." Kent v. Schwei
r
710 F.2d 110, 114 (3d
Cir. 1983).
This Court does not undertake de novo review of the decision
and does not re-weigh the evidence presented to the Commissioner.
Schoengarth v. Barnhart,
416 F. Supp.2d 260,
265
(D.
Del. 2006),
ting Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190 (3d
Cir.
1986)
(the
sUbstantial
evidence
4
standard
is
deferential,
including deference to inferences drawn from the facts if they, in
turn, are supported by substantial evidence.)
supported
by
substantial
evidence,
the
If the decision is
Court
must
affirm
the
decision, even if the record contains evidence which would support
a contrary conclusion.
App.
LEXIS 8159,
*3
Panetis v. Barnhart, No. 03-3416, 2004 U.S.
(3d Cir. Apr.
Heckler, 807 F.2d 54, 58
F.3d 259, 262
IV.
26,
2004),
citing Simmonds v.
(3rd Cir. 1986), and Sykes v. Apfel, 228
(3d Cir. 2000).
ANALYSIS
A.
The ALJ's Determination
In
determining
whether
a
claimant
is
eligible
for
supplemental security income, the burden is on the claimant to show
that she has a medically determinable physical or mental impairment
(or combination of such impairments) which is so severe she is unable
to pursue substantial gainful employment 2 currently existing in the
national economy.3
The impairment must be one which is expected to
result in death or to have lasted or be expected to last not less
than twelve months.
42
U.S.C.
§
1382c(a) (3) (C) (il;
Morales v.
According to 20 C.F.R. § 416.972, substantial employment is defined as
"work activity that involves doing significant physical or mental
acti vi ties." "Gainful work acti vi ty" is the kind of work acti vi ty usually
done for payor profit.
A claimant seeking supplemental securi ty income benefi ts must also show
that her income and financial resources are below a certain level.
42
U.S.C. § 1382(a).
3
5
Apfel, 225 F.3d 310, 315-316 (3d Cir. 2000).
To be granted a period
of disability and receive disability insurance benefits, a claimant
must show that she contributed to the insurance program, is under
retirement age, and became disabled prior to the date on which she
was last insured.
42 U.S.C. § 423(a); 20 C.F.R. § 404.131(a).
The
Commissioner does not dispute that Ms. Davis satisfied the first two
non-medical requirements and the parties do not object to the ALJ's
finding that Plaintiff's date last insured for purposes of receiving
disability benefits was September 30, 2008.
(Tr. 13.)
To determine a claimant's rights to either SSI or DIB,4 the ALJ
conducts a formal five-step evaluation:
(1)
if the claimant is working or doing substantial gainful
activity, she cannot be considered disabled;
(2)
if the claimant does not suffer from a severe impairment
or combination of impairments that significantly limits
her ability to do basic work acti vi ty, she is not disabled;
(3)
if the claimant does suffer from a severe impairment which
meets or equals criteria for an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1 ("the
stings")
and the condition has lasted or is expected to last
continually for at least twelve months, the claimant is
considered disabled;
(4)
if the claimant retains sufficient residual functional
capacity ("RFC")5 to perform her past relevant work, she
The same test is used to determine disability f6r purposes of receiving
either DIB or SSI benefits.
Burns v. Barnhart, 312 F.3d 113, 119, n.l (3d
Cir. 2002).
Therefore, courts routinely consider case law developed under
both programs.
Briefly stated, residual functional capacity is the most a claimant can
do despite her recogni zed limitations.
Social Security Ruling 96-9p
6
is not disabl
; and
(5) if,
taking into account the claimant's RFC,
age,
education, and past work experience,
claimant can
rform other work that exists in the local, regional or
national economy, she is not disabled.
20 C.F.R. § 416.920(a} (4); see also Morales, 225 F.3d at 316.
In steps one, two, and four, the burden is on the claimant to
present evidence to support her pos
ion that she is entitled to
Social Security benefits, while in the fifth step the burden shi
to the Commissioner to show that the c
s
imant is capable of performing
work which is available in the national economy.6
228 F.3d 259, 263 (3d Cir. 2000).
Following the prescribed analysis, Judge Koster first concluded
Ms. Davis had not engaged
substant
1 gainful activity since May
15, 2008, the date on which she applied for benefits and the amended
disability onset date.
(Tr.
13.)
In resolving step two, the ALJ
found that as of the date of the hearing, Plaintiff suffered
three severe impairments:
depress
bilateral osteoarthr
is of the knees,
disorder (not otherwise specified and substance induced) ,
and polysubstance dependence.
(Id.
defines RFC as "the individual's maximum remaining ability to perform work
on a regular and continuing basis, i.e., 8 hours a day, for 5 days a week,
or an equivalent work schedule. u
Step three involves a conclusive presumption based on the listings,
therefore, neither party bears the burden of proof at that stage. Sykes,
228 F.3d at 263, n.2, citing Bowen v. Yuckert, 482 U.S. 137, 146-147, n.5
(1987) .
6
7
At step three, the ALJ concluded none of Plaintiff's impairments,
considered singly or in combination, satisfied the criteria of any
relevant Listing.
That is, Plaintiff testified that she had chronic
knee pain, but she did not take pain medications and was not under
the care of a physician for this problem.
Dr.
consul ting physician,
2008,
indicated on July 31,
osteoarthritis was "mild
H
Larry Dobkin,
a
that her knee
and he did not observe any problems with
standing or walking, although she did experience pain in her knees
on examination.
(Tr. 18, citing Tr. 321-330.)7
Using the special
technique required in reviewing claims of mental impairments, the
ALJ concluded
that
Plaintiff's
depression
did
not
satisfy
the
relevant Listing, 12.04, Affective Disorders. 8
At step four, the ALJ concluded that if Ms. Davis
ceases substance abuse, she will be capable of performing
work at the light exertional level.
Further, because of
memory and concentration problems, [she] is limi ted to
simple tasks, no production rate pace, requires work with
limited contact with supervisors,
the public,
and
co-workers, and cannot be exposed to hazards such as
unprotected heights or dangerous machinery.
(Tr. 15.)
7
The ALJ did not specifically identify the relevant Listing in discussing
Plaintiff's alleged osteoarthritis in both knees. However, Ms. Davis does
not raise any arguments regarding this portion of the ALJ's decision and
we therefore omit any further discussion of this impairment.
8 Again, Plaintiff does not argue that the ALJ's detailed analysis of her
depressive disorder did not conform to the step-by-step analysis to be
applied in considering mental health impairments.
See Listing 12.00A
through 12. oor. Therefore, we omi t review and discussion of this analysis.
8
The ALJ further concluded that Plaintiff could not perform her
past relevant work as a data entry clerk which the VE, Mr. Edelmann,
had described as semi-skilled and sedentary, or as a nurse's aide,
which was described as semi-skilled and heavy.
Tr.
43-44.)
However,
based on Ms.
Davis's
(Tr. 18-19, see also
age,
9
high
school
education, work experience, and residual functional capacity, as
well as Mr. Edelmann's testimony, the ALJ concluded that assuming she
were able to abstain from drugs and alcohol, there were numerous
light, unskilled jobs existing in the economy which Plaintiff could
perform despite her limitations,
cleaner, or assembly worker.
r example, motel cleaner, office
(Tr. 19-20, see also Tr. 42.)
The ALJ further concluded that Ms. Davis "is unable to maintain
any substantial gainful acti vi ty as a result of her ongoing substance
abuse.
Substance abuse is therefore a material factor in the
determination of disability, thus precluding an award of disability
benefi ts."
(Tr. 20.)
He further concluded that but for the effects
of substance addiction, Ms. Davis had not been under a disability
between May 15, 2008, and the date of his decision and, consequently,
was not entitled to benefits.
rd.
Ms. Davis was 43 years old on her alleged onset date and 45 at the time
of the hearing, making her a "younger person" according to Social Security
regulations.
20 C.F.R. § 404.1563(c) and § 416.963(c).
9
9
B.
Plaintiff's Arguments
Ms.
Davis does
not dispute
the
overall
completeness of the ALJ' s five-step analysis.
accuracy and
Nor does she deny that
she has a long history of drug and/or alcohol abuse dating back to
her chi ldhood.
(Plaintiff's Brief in Support of Motion for Summary
Judgment, Doc. No. 15, "Plf.'s Brief,Y at 6.)
Rather, she argues
that his ultimate decision was erroneous because he did not apply
the correct standard in his analysis regarding the effects of her
drug addiction or alcoholism
("OM.")
Plaintiff contends that
contrary to Judge Koster's conclusions, her short-lived relapses
into drug or alcohol abuse do not distract from the fact that she
continued to experience severe mental health symptoms during the
entire time period covered by these applications, as evidenced by
repeated and frequent assessments of a GAF score lO of 50 or less.
Her
depression and anxiety are evidenced by unreliability in the work
environment, difficulty dealing with people, irritability, crying,
inability to finish projects, and problems with concentration and
memory.
rd. at 6-7.)
Her long history of hospitalizations for
mental health treatment and ongoing therapy as an outpatient further
The GAF (Global Assessment of Functioning) scale assesses how well an
individual can function according to psychological, social, and
occupational parameters, with the lowest scores assigned to individuals
who are unable care for themselves. Drejka v. Barnhart, CA No. 01-587,
2002 U.S. Dist. LEXIS 7802, *5, n.2 (D. Del. Apr. 18,2002). Seethe on-line
version of the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS
("On-line
DSM-IV"),
Multiaxial Assessment,
American Psychiatric
Association (2002), at www.lexis.com .• last visited November 9, 2011.
10
10
reflect her inability to function consistently in a work environment,
despite significant medication.
(Id. at 7-16.)
Plaintiff further argues that during "the vast majority of time"
between May 15, 2008, and the date of the ALJ's decision, April 22,
2010,
she
was
not
abusing
any
substances.
Thus,
because
she
continued to experience severe mental impairments, the ALJ should
have concluded that DAA was not a material factor, entitling her to
benefits.
(Plf.'s Brief at 20.)
According to Ms.
30-day period of sobr
Davis,
the SSA requires only evidence of a
ty in order to determine if drug abuse and/or
alcoholism is a material factor in a claimant's disability.
If the
evidence is insufficient to permit the ALJ to delineate between the
mental restrictions and limitations imposed by DAA and those caused
by other established mental disorders, she is entitled to the benefit
of the doubt and should receive benefits.
In this portion of her
brief, Plaintiff relies extensively on an emergency message issued
by the Social Secu
ty Administration on August 30, 1996, stating
its policy that where a claimant is disabled but also has a DAA issue,
bene
ts should be awarded unless the ALJ can "separate the mental
restrictions and limitations imposed by DAA and the various other
mental disorders shown by the evidence."
(Plf.'s Brief at 17 18,
ci ting "Questions and Answers Concerning DAA from the 07/02/06
11
Teleconference," No. EM-96200 (August 30, 1996) ("EM-96200.,,)1l
Davis argues
that relapses
such as
those
Ms.
she experienced "have
nothing to do wi th the materiality determination;" any DAA is simply
not material unless the evidence shows that the disability resolves
with sobriety.
(Plf.' s Brief at 17-20.)
The medical evidence shows
that during a number of periods of sobriety lasting 30 days or longer
and two extended periods of four and eight months, her GAF scores
have, with only a single exception, continued to be at 50 or less,
a fact which was ignored by the ALJ.
While she agrees that such
scores, by themselves do not establish disability, numerous courts
have held that they are clearly relevant evidence that an ALJ may
Id. at 20-23.)
not overlook or misrepresent.
ignored
significant
evidence in the
evidence
record that
periods of sobriety.
iled
and
establishes her
identify
any
other
improvement during
Consequently, his decision should be reversed
and she should be awarded benefits.
C.
to
In short, the ALJ
(Id. at 24-27.)
Applicable Law
In 1996,
Congress amended the
Social
Security Act
to
preclude award of either supplemental security income or disability
benefits if drug addiction or alcoholism would be "a contributing
factor
material
individual
is
to
the
disabled.
Commissioner's
II
42
U.S.C.
determination
§§
that
423 (d) (2) (C)
the
and
The full text of EM-96200 is available by going to https://
secure.ssa.gov/apps10 and following the "emergency messages" links.
11
12
1382c(a) (3) (J); see also Social Security regulations at 20 C.F.R.
§§
404.1535 and 416.935.
In determining if OM is "a contributing factor material to the
determination
of
disability,"
the
key
question
is
whether
the
claimant would still be considered disabled if she stopped using
drugs and/or alcohol.
In cases where there is evidence of drug
addiction or alcoholism, the ALJ first performs the normal five-step
analysis to determine if the claimant is disabled.
416.935(a).
20 C.F.R.
§
Assuming he concludes that she is disabled (including
any impairment attributable to
OAA),
he then performs a
second
analysis to determine the effects of drug or alcohol abuse.
The ALJ
first identifies those physical and mental limitations which would
remain if the claimant stopped using drugs or alcohol.
determines
if
the
remaining
combination) would be disabling.
limitations
He then
(individually
or
in
If the remaining limitations would
not be disabling, the conclusion is that OM is a material factor.
Id., § 416.935(b} (2).
In short, "(w]hen an applicant for disability
benefits both has a potentially disabling illness and is a substance
abuser, the issue for the administrative law judge is whether, were
the applicant not a substance abuser, she would still be disabled."
Kangail v. Barnhart, 454 F.3d 627,
628-629 (7 th Cir. 2006).
The regulations do not explain exactly how the ALJ is to go about
separating the limitations attributed to OM from those due to other
13
However, in EM-96200, the emergency teletype
mental impairments.
relied upon by Ms. Davis, the SAA presented guidelines in the form
of a series of questions and answers about how to address the DAA
issue.
In those guidelines, the Administration indicated that the
most useful evidence to be considered in the materiality analysis
is
evidence
from
drugs/alcohol./f
analysis,
a
"period when
EM-96200
at
the
Answer
individual
29.
In
this
was
not
stage
using
of
the
the ALJ should consider "the length of the period of
abstinence, how recently it occurred, and whether there may have been
any increase in the limitations and restrictions imposed by the other
mental impairments since the last period of abstinence./f
See Fahy
v. Astrue, CA No. 06-366, 2008 U.S. Dist. LEXIS 48773, *9-*13 (E.D.
Pa. June 26, 2008), and Crawford v. Astrue, CA No. 08-1160, 2009 U.S.
Dist. LEXIS 32446, *14 *21 (E.D. Pa. April 16,2009), applying these
criteria.
The materiality conclusion "must be based on medical
evidence, and not simply on pure speculation about the effects that
drug and alcohol
Ambros
abuse
have
on a
claimant's
i v. Astrue, 727 F. Supp.2d 414,
430
ability to work.
fI
(W.O. Pa. 2010).
Before turning our attention to the facts of this case,
we
consider an issue raised by Ms. Davis in the brief in support of her
motion for summary judgment, that is, who has the burden of proof
in the materiality analysis.
(See
f.'s Brief at 6, stating that
in this portion of the analysis, "the burden of proof [is] on the
14
ALJ.
u
)12
To date, the United States Court of
ls for the Third
t has not directly resolved the question of whether the SAA
or the claimant has the burden of proof in establishing that DAA is
or is not a material factor contributing to dis
lity.
See McGill
v. Comm'r of Soc. Sec., No. 07-2862, 2008 U.S. App. LEXIS 16270, *5-*6
(3d Cir. July 30, 2008), acknowledging this question but declining
to resolve it.
The Fifth, Eighth, Ninth, and Eleventh Circuits have
concluded that the claimant bears the burden of proving her DAA is
non-material.
1999)
See Brown v.
Apfel, 192 F.3d 492, 498-499 (5 th Cir.
(noting that "pragmatically,U the plaintiff is the party best
able to show that she would still be disabled in the absence of DAA
and confessing itself "at a loss to discern how the Commissioner is
supposed to make such a showingU); Pettit v. Apfel, 218 F.3d 901,
903 (8 th Cir. 2000); Parra v. Astrue, 481 F. 3d 742, 748 (9 th Cir. 2007)
(assigning this burden to the plaintiff "is consistent with the
general rule that at
establish
his
1 times,
entitlement
to
the burden is on the claimant to
disability
insurance
benefits U)
(internal quotation omitted); and Doughty v. Apfel, 245 F.3d 1274,
1280 (11 th Cir. 2001).
W hin the Third Circui t, district courts 'have
Plaintiff does not cite case law for this proposition in her brief,
relying instead on a decision of the Social Security Appeals Council dated
December 3, 1989, which purportedly "acknowledges that [placing the burden
on the ALJ or the Administration] is the Agency's policy."
(Plf.'s Brief
at 18 and note 91.)
She indicates the Appeals Council decision is attached
to her br ief as Exhibit Ai however, it is not, and the Court has been unable
to independently identi
and verify the content of such a decision.
15
generally held that the burden is on the plaintiff.
See,
e.g.,
Westcott v. Astrue, CA No. 10-78, 2010 U.S. Dist. LEXIS 136020, *37
(W.D. Pa. Dec. 23, 2010)
(Conti, J.), concluding that the Court of
Appeals for the Third Circuit would follow the rationales of Parra,
Doughty, Brown and Mittelstedt v. Apfel, 204 F.3d 847, 852 (8 th Cir.
2000); Ambrosini, 727 F. Supp.2d at 430
(Schwab, J.); Lawrence v.
Astrue, CA No. 08-265J, 2010 U.S. Dist. LEXIS 12931, *21 (W.D. Pa.
Feb.
16,
2010)
(Gibson,
J.)i
Kratch v.
Comm'r Soc.
Sec.,
CA No.
09-6010, 2010 U.S. Dist. LEXIS 127079, *15-*16 (D. N.J. 2010); and
Thomas v. Astrue, CA No. 08-632, 2008 U.S. Dist. LEXIS 81815, *6 (E.D.
Pa . Oct. 15, 2008).
Even if we were to assume that the burden of proof is on the
ALJ,
the standard of proof is the same as in other parts of the
disability
analysis.
conclusion
on
the
That
is,
materiality
in
arriving
issue,
the
at
ALJ
"substantial evidence" to support his conclusions.
Barnhart, 348 F.3d 689, 695 (8 th Cir. 2003)
his
ultimate
must
identify
Bru~ggemann
v.
("Even though the task
is difficult, the ALJ must develop a full and fair record and support
his conclusion with substantial evidence on this point just as he
would on any other.")
D.
The Relevant Medical Evidence
Taken chronologically, the first medical evidence in the
record are the notes associated wi th Plaintiff's inpatient treatment
16
at the Mercy Hospital Behavioral Health unit
between June 2 and June 10,
2006.
Ms.
("Mercy Hospital")
Davis voluntarily sought
treatment for increased depression with thoughts of wanting to die
and polysubstance addiction involving crack cocaine, alcohol, heroin
and marijuana.
She stated she was "depressed over her drug use and
the fact that she was recently placed [sic] from her apartment and
is currently staying in a shelter."
(Tr.294.)
She was not taking
any medication for her mental conditions and apparently had not been
for the last eight or nine years.
Her diagnosis on admission was
substance induced mood disorder and polysubstance abuse.
Ms.
294-295.)
depression,
(Tr.
Davis was admitted to the dual diagnosis unit for
addiction,
and suicidality and placed on an alcohol
withdrawal protocol.
Her GAF on admission was 20 and 50 at the time
of discharge. 13
293-313.)
(Tr.
Ms. Davis voluntarily returned to the hospital
weeks later on June 21,
associated
with
a
2006,
chemical
ss than two
complaining of depressive symptoms
dependency.
After
she
had
been
discharged on June 10, she used alcohol three times and cocaine on
June 20.
She was admitted for treatment with individual group and
13 A GAF of 11 to 20 means the person is in "some danger of hurting self
or others (e. g., suicide attempts without clear expectation of death;
frequently violent; manic excitement) OR occasionally fails to maintain
minimal personal hygiene . . . OR [has] gross impairment in communication
(e.g., largely incoherent or mute).N A GAF between 41 and 50 reflects
"serious symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) OR any serious impairment in social, occupational,
. . . functioning (e.g., no friends, unable to keep a job).N On-line DSM-IV.
17
milieu therapy and medication
depression and erratic sleep.
Her
GAF at the time of discharge was 50 and her mood was good, she had
a full range
affect, no s
psychotic symptoms.
cidal or homicidal intentions, and no
Although she was released to an inpatient drug
and alcohol rehabilitation program, there are no notes in the record
from that treatment.
14
(Tr.282-292.)
Between August 15 and December 6, 2006, Ms. Davis participated
regularly in group therapy at Mercy Hospital.
On October 19, 2006,
she shared information about trying to obtain employment, although
she was still
feeling anxious,
depressed,
and unmotivated.
On
November 20, 2006, she reported to her treating physician, Koushik
Mukherjee,
that she had used alcohol the previous week,
abstaining from all drug use.
but was
She was still dealing wi th depression
and PTSD, but reported she was planning to go to school to become
a
medical
transcriptionist.
"significant
possibil
problems
with
Dr.
Muhkerj ee
addiction
mood
she
had
disorder
and
Y of a Major Depression with psychotic features vs. Bipolar
Disorder, along with symptoms of PTSD."
were
and
indicated
cocaine
dependence,
alcohol
(Tr. 621.)
dependence,
His diagnoses
opioid
abuse
vs.
dependence, and major depressive disorder, recurrent, severe, with
psychotic features, rio bipolar disorder NOS, and PTSD.
She seemed
to be responding to the current combination of medications, but her
A later note indicates that she left the program uncompleted after about
30 days because of conflict with staff.
(Tr. 259.)
14
18
dosages were increased and she was advised to continue group therapy.
Her present GAF was 40. 15
On January 8,
(Tr. 620-622.)
2007,
Ms.
Davis again returned to the Mercy
Hospital inpatient behavioral health unit.
She reported she had
begun using drugs and alcohol about a month previously,
and was
feeling increasingly despondent with dysphoric mood, poor sleep and
appetite, feelings of hopelessness and worthlessness.
She had not
been attending the Mercy Hospital outpatient rehab program.
The
mental status examination on admission indicated she was alert and
oriented in time, place and person; had good hygiene and grooming;
and her posture was calm and normal.
slow,
relevant,
and non-pressured
coherent without any psychosis.
thoughts
at
the
time
and
her
Her speech was described as
and
thought
process
was
She denied suicidal or homicidal
concentration,
cognitive functioning appeared intact.
"fairly constricted."
her
Her af
memory
and
other
ct was described as
Her strengths were considered to be the fact
that she sought voluntary admission and was in stable health; her
weaknesses
were
chronic
drug
compliance and poor insight.
and
alcohol
addiction
with
poor
A report on admission noted that she
A GAF score between 31 and 40 indicates "some impairment in reality
testing or communication (e.g.,
speech is at times illogical, obscure,
or irrelevant) OR major impairment in several areas, such as work or school,
family relations, judgment, thinking, or mood (e.g., depressed man avoids
friends, neglects family, and is unable to work; child frequently beats
up younger children, is defiant at home, and is failing at school).n
On-line DSM-IV.
15
19
had "a past medical history of crack and alcohol abuse [and] states
she has recently
273. )
apsed and has been depressed over
5."
(Tr ..
She was discharged on January 15, 2007, with diagnoses of
chronic
drug
noncompliance
and
alcohol
with
addiction
outpatient
with
treatment
frequent
relapses
recommendations.
and
(Tr.
259-281. )
Following her release from the hospital, Ms. Davis returned to
outpatient therapy.
She explained to her therapist on January 17,
2007, that she believed her previous relapse was the result of not
taking her medications consistently and becoming more depressed.
(Tr. 532.)
She participated regularly in the group therapy sessions
and in late February 2007 reported
was having dif
culty due to
anxiety; she wanted to apply for work but was unsure if she could
return job applications.
(Tr.550.)
By April her participation in
group therapy was irregular and she was out of medications, but had
not seen the doctor.
She reported on April 23, 2007, that she had
a
following
job
interview
the
information on this subject.
day
but
there
is
no
follow
up
(Tr. 557.)
On May 7, 2007, Ms. Davis went to the Mercy Hospital emergency
and intentionally overdosed on
room after she began using coca
her prescribed medications.
She was released two days later and
returned to the partial hospital program for follow up.
i
table,
had mood swings,
She was
and there were legal charges pending
20
against her for aggravated assault towards her husband.
In a medical
examination on June 14, 2007, her primary diagnoses were cocaine and
alcohol dependence along with depressive disorder NOS.
(Tr. 423.)
In July, she reported returning to the use of alcohol.
Ms.
Davis was readmitted to Mercy Hospital on September 30,
2007, at which time her diagnosis was described as suicidal ideation
in the context of relapse on heroin, marijuana and alcohol, together
with domestic violence.
She had stopped taking her psychotropic
medications "about two months" earlier and was not going to group
therapy sessions.
She was placed on medication for withdrawal
symptoms of crack cocaine and alcohol.
and 50 at discharge five days later.
Her GAF on admission was 30
16
(Tr.
227-258.)
She was
apparently released to an inpatient rehabilitation program but there
are no records from that treatment.
Plaintiff was able to maintain total sobriety from October
2007 until approximately January 1, 2008, when she used alcohol for
a single time, but continued to abstain from drug use.
She attended
outpatient group therapy, Alcoholics Anonymous ("AA") and Narcotics
Anonymous ("NA") meetings on a regular basis.
hospitalized a
In May 2008, she was
er a three-day "crack binge" and an intent to commit
A GAF between 21 and 30 indicates behavior that is \\considerably
influenced by delusions or hallucinations OR serious impairment in
communication or judgment (e. g. , sometimes incoherent, acts grossly
inappropriately, suicidal preoccupation) OR inability to function in
almost all areas (e.g., stays in bed all day; no job, home, or friends)."
On-line DSM-IV.
16
21
suicide by walking into traf
detox protocol.
c.
She was again placed on an acute
She reported not having used any medications for
four or five days prior to her suicide attempt and was feeling
overwhelmed and depressed.
Her GAF on admission was 30 and 50 on
discharge three days later on May 12, 2008.
(Tr. 201-218.)
On July 8, 2008, she returned to Mercy Hospital.
She was out
of medications and reported she had used crack and alcohol two weeks
be
reo
The
behavioral
health
diagnosis
indicated
experiencing mental problems due to substance abuse.
she
was
Her behavior
was described as guarded and suspicious; her mood was sad, dysthymic,
dysphonic, anxious, nervous, worried and impatient.
She reported
getting confused and had experienced auditory hallucinations (i. e. ,
a
group
of
people
talking)
when
she
was
very
expressed adequate insight into her problems;
exhausted.
She
her cognition and
intellectual functioning were within normal limits although she was
experiencing
periods
of
forgetfulness.
The
social
worker
who
completed the record noted her history of failing to complete other
treatment programs in June and October 2007 and a "long history" of
not
llowing through with treatment.
Ms. Davis agreed to re-enter
a partial hospitalization program for treatment.
(Tr. 431-439.)
As part of the Social Security application process, Plaintiff
underwent two consultative examinations in July 2008.
On July 10,
she met with Dr. Steven Pacella for a psychological evaluation.
22
She
identified her present illness as depression characterized by lack
of motivation, withdrawal, fatigue and frequent c
ng spells.
She
reported that "most recently" she had been admitted to Mercy Hospital
after she "took too many pills.,,17
or psychotic events.
She did not complain of paranoia
She acknowledged she had been poorly compliant
with treatment and stated she experienced little relief through drug
therapy
r her symptoms of depression and anxiety.
Dr.
Pacella
noted upon examination,
Ms.
Davis was alert and fully oriented, passively
responsive but able to maintain eye contact, labile in
emotion and not affectively restricted but not internally
entertained or autistically preoccupied.
She revealed no
abnormalities involving station, gait, speech, vision or
audition, was by no means perceptually disturbed, of red
a productive, relevant, clear and coherent stream-of
thought and displayed no defect of remote recall for most
personal details.
.Her history reflects self
destructive tendencies and impulse dyscontrol while
under-the-influence.
I would question the extent to
which she enj oys genuine insight into her behavior but s
made no frank attempt to malinger on today' s [mental status
examination. ]
(Tr. 319.)
Dr. Pacella further not
Ms. Davis "had absolutely no
problems understanding, retaining and following [his] instructions
and
disclosed
persistence./I
limited t
no
(Tr.
de
ct
319.)
of
attention,
She did,
erance of adult stress,
concentration
however,
or
task
demonstrate "very
pressure or responsibility."
We note that the medical records show the only reported episode in which
Plaintiff had intentionally overdosed on prescription medications occurred
more than a year earlier and she had two hospital admissions in the
intervening period.
17
23
(Id. )
Dr. Pacella's mental health diagnoses were substance induced
mood disorder and polysubstance dependence, current course unknown.
He regarded her prognosis as poor but concluded:
Pending long term abstinence from substance abuse, there
is no clinical basis to make diagnoses of a bipo r, or
any other affective, disorder, other than substance
induced.
Therefore, .
. assuming she can achieve and
maintain sobriety, Ms. Davis should be able to work within
a schedule, attend to a task and sustain a consistent,
competitive routine
jobs [requiring] little or no
formal vocational training.
(Tr. 320.)
On July 31, 2008, Ms. Davis was examined by Dr. Larry Dobkin.
He perceived no physical limitations of any type.
She reported to
Dr. Dobkin that the last time she had used drugs or alcohol had been
May 2008, and he commented that her depression, PTSD, and anxiety
appeared to be "very disabling for this patient."
Although she
admitted her past history of drugs and alcohol abuse, "she says she
does not use any of this for now."
Throughout
the
remainder
of
(Tr. 321-330.)
2008,
Ms.
Davis
continued
outpatient therapy and was able to resist using any drugs, but did
admit to intermittent alcohol use.
The medical records
January
and February 2009 are rather sparse, and by March 24, 2009, Ms. Davis
indicated she did "not have a clean date" and was not attending AA
or NA meetings.
(Tr. 508.)
Another gap in the record occurs until
June 11, 2009, when she was examined by Dr. Dennis Wayne at Mon Yough
24
Communi ty Services.
18
He noted in his ini tial psychiatric evaluation
that she had been recently hospitalized at Jefferson Hospital in
McKeesport,
Pennsylvania,
were restarted.
where
her anti -depression medications
He indicated she had "good insight" into her
19
condition and knew that if she failed to take her medications for
as little as a week,
she would start experiencing irritability,
aggressiveness, homicidal and/or suicidal ideation, and acting out.
She reported to Dr. Wayne that she had been clean for eight months.
During the interview, Ms. Davis was alert, oriented and cooperative,
neatly dressed, with good insight into her condition.
psychotic
symptoms
and
hallucinations,
but
She denied
reported
becoming
paranoid at times and having symptoms of attention defici t disorder,
e. g.,
getting bored easily and losing interest in things.
Dr.
Wayne's diagnostic impressions were bipolar illness, mixed type;
PTSD; attention deficit disorder; addiction to crack/cocaine; and
cannabis abuse.
Her GAF was 50 during the interview.
Although she
was advised to return in two months, there is no evidence of any
follow-up treatment.
The
(Tr. 509-510.)
nal significant medical note in the record dates from
December 28,
2009,
when Rachael San Pedro,
a clinician with the
Women's Behavioral HealthCARE program at UPMC Western Psychiatric
18
It is unclear from the record why Ms. Davis was being treated at Mon
Yough.
19
No records pertaining to this hospi tali za tion appear in the transcr ipt.
25
Institute and Clinic, reported to Mercy Hospital behavioral health
services that Ms. Davis was participating in a study of women using
psychotropic drugs and other treatments during pregnancy.
Ms. Davis
reported
continued
depressed
mood
symptoms
with
some
anxiety,
problems falling asleep, but more "normal" appeti te and energy level.
She had voluntarily entered an inpatient program from December 8 to
December 18, 2009, for depressed mood and to update her medication
regime; she was now being treated for bipolar disorder. 20
reported her mood had improved since her hospital
symptoms
had
not
fully
remitted.
She
reported
Plaintiff
stay but the
no
alcohol
or
marijuana use since November when she was initially assessed for the
UPMC study.
She was continuing to participate in the Mercy Hospital
(Tr. 642-643.)
partial hospitalization program.
Pedro's letter impl
though Ms. San
there could be further reports from the study,
no other correspondence appears in the record.
E.
The ALJ's Treatment of the Medical Evidence
Judge Koster first addressed the issue of DAA in step three
of his analysis.
severe
impairments
disorder NOS,
After finding that none of Plaintiff's
bilateral
knee
substance induced;
osteoarthritis;
depressive
and polysubstance dependence
satisfied the criteria for one of the listed impairments,
separately or in combination
20
(Tr.
either
13 14), the ALJ noted that the
No records from this hospital stay appear in the transcript.
26
leged
"evidence clearly does not define any period of abstinence from
substance abuse.
The most recent medical record dated December 2009
shows that the claimant last reported use of marijuana and
in November 2009. "
(Tr. 14, ci ting Tr. 643.)
cohol
He further noted that
despite Ms. Davis's testimony at the hearing that she stopped using
drugs and alcohol in May 2008, the record shows evidence of using
alcohol in August 2008; in November and December 2008, she reported
an
unwillingness
to
stop
drinking
and
was,
in
fact,
actively
drinking; in March 2009, she reported she did not have a "clean date;"
and in November 2009, her primary problem was identified as substance
abuse dependence.
(Tr. 14.)
In short, the ALJ concluded,
this record does not disclose any meaningful period during
which the claimant has been free of substance abuse.
The
records lead to the inference that the claimant's mental
status would improve and her overall functioning would
improve if she attained long-term sobriety.
(Tr. 15.)
Relying on the July 12, 2008 report of Dr. Pacella, the
ALJ concluded that substance abuse was a factor material to the
determination of disabil
y.
(Id., citing Tr. 314-320.)
Judge Koster returned to this issue later in his analysis.
We
need not recite every point in this portion of his review (Tr. 15-18)
because we find it a thorough and comprehensive summary of all the
evidence in the record and even more detailed than the Court's own
analysis set out in the previous section.
After considering each
of
her
the
medical
records
pertaining
27
to
hospitalizations,
outpatient
providing
treatment,
a
detailed
consultative
explanation
of
examinations,
why
he
found
etc. ,
Ms.
and
Davis's
sUbjective assertions with respect to her mental limitations less
than entirely credible (Tr. 15-18), the ALJ concluded that substance
abuse was a material factor in determining disability and that "but
for the effects of substance addiction,
[Ms.
Davis]
retains the
capacity for work that exists in significant numbers in the national
economy."
F.
(Tr. 20.)
Discussion and Conclusion
We address each of Plaintiff's specific arguments about
the ALJ's errors in his materiality analysis.
1.
ALJ improperly
ied on Dr.
Pacella's report:
st, Ms. Davis argues that the ALJ erred by relying extensively
on the report submitted by Dr. Pacella who, according to her, was
the only medical provider who found that her depression and other
mental impairments were substance induced.
stating that Dr.
(See Plf.' s Brief at 13,
Pacella "determined that her mood disorder was
substance induced, a finding supported nowhere else in the record.")
We believe Plaintiff has overlooked at
opinions indicating that
induced.
r
mental
least two other medical
impairments were substance-
As the ALJ pointed out, "In January 2007,
was reported
that [Plaintiff] did not appear to have any acute medical issues but
was suf
ring from depression which was likely substance induced."
28
(Tr. 16.)
The Court has confirmed that on admission to the Mercy
Hospital inpatient behavioral health unit on January 8, 2007, the
admitting physician,
Dr. Gary Pollack, noted:
The patient is a 42-year-old female with a past medical
history of crack and alcohol abuse who states she has
recently relapsed and has been depressed over this.
She appears to have some depression which is likely
substance induced.
(Tr. 273-274, emphasis added by the Court.)
A similar diagnosis had been made on June 3, 2006, when Ms. Davis
was admitted to the same hospital.
Dr.
Michael D.
Patterson,
a
consulting physician, wrote that she was "depressed over her drug
use and the fact that she was recently [dis] placed from her apartment
and is currently staying in a shelter."
medications.
She was not taking any
His diagnoses on admission were substance induced mood
disorder and polysubstance abuse.
(Tr. 294-295.)
We find unavailing Plaintiff's argument that the ALJ erred by
relying on Dr. Pacella's report when the record shows that two other
physicians, both concerned with the critical care of patients with
mental impairments, had independently noted the likelihood that her
depression was substance induced.
2.
low GAF scores:
The ALJ failed to address Plaintiff's consistently
Plaintiff argues that the ALJ erred by failing to
recognize her consistently low GAF scores, even during periods of
sobriety.
In fact,
Plaintiff states, except
29
for one month or so in 2008, her GAF scores have without
exception been at 50 or below, a
ct the ALJ simply ignored
in his rush to jUdgment.
These extremely low scores
indicate plainly the various evaluators' opinions that Ms.
Davis' mental impairments, standing alone, resulted in
significant limitations.
(Plf.'s Brief at 20-21.)
In particular, Plaintiff points to her GAF scores during two
allegedly sober periods of four and eight months.
Plaintiff does
not precisely identify these periods, but the Court has inferred from
her brief that she is referring first to a period of three months
starting approximately October 19, 2007.
(See Plf.'s Brief at 11,
stating that after she returned to the outpatient program at Mercy
Hospi talon that date, she remained clean and sober for three months,
but was never able to achieve a GAF score above 48.)
The second
period seems to have started sometime around mid-November 2008 and
continued for eight months.
(See Plf.'s Brief at 14, stating that
by February 17, 2009, she had been clean and sober "more than 4 months"
but still had mental health problems including depression and a flat
affect and that in June 2009, when she was evaluated by Dr. Wayne
at Mon Yough Communi ty Services, "she had been clean for 8 months.")
On October 18,
2007, Ms.
Davis began a series of outpatient
sessions at Mercy Hospital where she presented "seeking treatment
for AOD [alcohol or drug] dependence."
until December 26, 2007, she regula
and NA meetings.
(Tr. 389.)
From that date
y attended AOD therapy and AA
As Plaintiff points out, her GAF scores during that
30
period ranged from 45-48,
473-486. )
indicative of severe symptoms.
(Tr.
When she returned to Mercy Hospital on January 8, 2008,
Dr. Nadeem Ahmed noted she had relapsed "about a month ago but only
used twice in the last 30 days."
medications
nor
attending
She was not taking her prescribed
outpatient
diagnoses were depressive disorder NOS,
alcohol abuse (rule out dependence.)
she was depressed over
Dr.
Ahmed's
cocaine dependence,
and
A consulting physician noted
recent relapse on crack and alcohol a
having been clean "f
25 or 30,
therapy.
or six months."
er
Her GAF on admission was
indicative of serious impairment
in communication or
judgment or an inability to function in society.
On release, her
diagnoses were chronic drug and alcohol addiction with frequent
relapses
and
with
noncompliance
recommendations.
outpatient
treatment
(Tr. 259-281.)
As for the second
riod, the medical evidence shows that Ms.
s's statements to Dr. Wayne in June 2009 that she had been sober
eight months were not entirely accurate.
between November 12 and December 12, 2008, Ms.
On four occasions
s reported to her
therapy group that she hoped she could stop drinking, was "unwilling
to stop drinking" and accepted she was "not doing well with her
ct/alcoholic self," was "ambivalent about quitting drinking,"
and "has been drinking."
this period.
(Tr.
There are no reports of GAF scores during
588, 592-594.)
31
On February 12, 2009, a note
from the Mercy Hospital outpatient clinic indicated that she was
seeking treatment for alcohol and cocaine dependence.
Her diagnoses
were alcohol dependence, cocaine abuse, depressive disorder NOS. On
March 24, Ms. Davis told her therapy group that she did not have a
clean date.
(Tr.508.)
Her GAF both on admission and discharge from
the program on June 17, 2009, was 50.
(Tr. 393-394.)
The record does, in fact, support Plaintiff's argument that at
many times, she was considered to have a GAF score below 50.
Not
surprisingly, the lowest scores occur when she voluntarily sought
Many of the other low scores were assigned by
inpatient treatment.
persons
identified as
qualifications
to make
social
workers
such
clinical
or other therapists
assessments
is
not
whose
known.
Where such scores appear in the notes of medical doctors (see, e.g.,
Tr.
224,
227,
282,
293),
other than scores on admission to the
hospital, they are at a minimum 50, indicative of serious symptoms.
At other times, her GAF score was as high as 60 or 65,
indicative
of no more than "mild" symptoms or "some difficulty" in social or
occupational functioning.
(See,
e.g., Tr. 390 and 519.)
We recognize that at least one court has concluded that a score
of 50 is evidence of an inability to perform substantial gainful
activity on a regular and ongoing basis.
F. Supp. 2d 693,
699
(D.
Del.
2010)
See Kirk v. Astrue, 723
On the other hand,
numerous
courts have concluded that a score below 50, e.g., between 45 and
32
50, does not "require a finding of disability."
No. 08-4908, 2009 U.S. App. LEXIS 24515, *2 (3d Cir. Nov. 9, 2009) i
see also Hillman v. Barnhart, No. 02-1416, 2002 U.S. App. LEXIS 21344,
*29, n. 1 (3d Cir. Sept. 26, 2002) i Jones v. Astrue, 494 F. Supp.2d
1284, 1288 (N.D. Ala. 2007)
2010 U.S.
i
and Speagle v. Astrue, CA No. 08 1046,
st. LEXIS 24942, *31-*32 (M.D. Fla. Mar. 4, 2010).
The
SSA has explicitly stated that "raJ GAF score does not have a direct
correlation to the severity requirements of the Social Security
listings."
mental dis
Gilroy, id. at *2, citing 66 Fed. Reg.
50764 5 (2000).
"Because the GAF scale does not directly correlate
to the severity
rements in the mental disorders listings, a GAF
score should be considered with all of the evidence but it is not
dispositive."
Galvin v. Astrue,
LEXIS 62930, *6, n.S
CA No.
08-1317,
2009 u.S.
Dist.
(W.O. Pa., July 22, 2009).
The record shows that over the period June 2006 through December
2009, Ms.
inpat
records
s was treated in emergency rooms and/or admitted for
treatment at least six times.
pertaining
to
these
21
admissions
The Court's
does
not
of the
disclose
any
instances in which inpatient treatment was precipitated solely from
increases in depression or anxiety.
these admissions
followed
Rather, the record indicates
renewed use of drugs
and/or alcohol,
Ms. Davis was also treated at Jefferson Hospital in mid-2009, and may
have parti
in two other inpatient rehabilitation programs, but
medical records from those events are not in the transcript.
21
33
frequently
in
combination with
her
psychotropic medications as directed.
468 F.3d 615, 620 and 624 (loth
failure
to
take
prescribed
Compare Salazar v. Barnhart,
r. 2006), where the medical evidence
showed that although there was a history of DAA, the plaintiff was
hospitali
during at least two periods of sobriety as a result of
depression,
hopelessness,
during the three-year pe
and
suicidal
ideation.
Furthermore,
od covered by the medical records, there
appear to have been no frequent changes in the medications Plaintiff
was prescribed for depression and anxiety, merely minor adjustment
in dosages, from which it could be inferred that this treatment was
effective.
The
record also
indicates
that when Ms.
Davis was
compliant with her medications, she experienced improvement in mood.
instance, a psychiatric progress note from July 5, 2007,
Compare,
indicating that her sleep and appetite were good and her "depression
under control with meds" (Tr. 626) with Dr. Michael Frantz's records
from
July
18,
2008,
depression and anxiety.
i.e.,
"notes
stopping
meds.
Increased
. mood depressed with congruent affect"
or Dr. Wayne's comment of June 11, 2009, "she knows if she is off
her medications for a week or less she starts feeling symptoms again.
(Tr. 631 and 509. )
Davis's
mental
substance
abuse
I(
None of her medical providers indicated that Ms.
impairments,
impairments,
considered
were
in
isolation
sufficiently
limiting
gainful activity.
preclude all forms of substanti
34
from
as
In sum,
her
to
the
evidence indicates that when Ms. Davis was properly medicated and
abstained
from
using
drugs
or
alcohol,
her
overall
condition
improved.
Moreover, the ALJ is correct that there is evidence supporting
the conclusion that during those
ods when Ms. Davis was not using
drugs or alcohol, she was capable of working, despite her GAF scores.
For example,
in February through April 2007,
during a period of
sobriety, she reported to her therapist on various occasions that
she wanted to work but was having trouble preparing applications;
she was going to drop off a job application (although she was anxious
about the interview); and had an interview wi th a potential employer.
(Tr.
550, 553, 557.)
Her act
ies of daily living as reported
in a questionnaire she prepared in June 2008 and in her examination
with Dr. Pacella, as well as her testimony at the hearing, indicate
that although she has limitations, she is able to live independently
and care for a new-born child.
PIa
iff also argues that the case must be remanded because
the ALJ mentioned only a single GAF score from records spanning a
period of more than three years.
While conceding that GAF scores,
standing alone, cannot be used to determine disability,
a
aintiff
s that the ALJ failed to give any reason for discounting evidence
that even during periods of sobriety,
consistently at 50 or below, a
Plaintiff's GAF remained
ilure she contends is reversible
35
error.
(Plf.'s Brief at 21-23.)
rst, the ALJ is not required to mention every item of evidence,
parti
arly when reviewing an extens
hundred pages, as appears here.
34, 42 (3d Cir. 2001).
medical history of several
See Fargnoli v.
Halter, 247 F.3d
Second, it is clear from the ALJ's thorough
analysis of the medical evidence that he closely reviewed Plaintiff's
records, since he frequently cited to specific pages of the record
his summary.
this omission.
We conclude that
is not necessary to rectify
See Shamonsky v. Comm'r of Soc. Sec., CA No. 10-766,
2011 U.S. Dist. LEXIS 80853, *19 (W.D. Pa. July 25, 2011)
(given
aintiff's medical history,
ALJ's otherwise thorough discussion of
including the notes where the GAF scores were provided, the fai
to
explicitly
reference
those
scores
did
not
constitute
error
ir ing remand.)
The ALJ's inabili ty to
3.
of
impairments:
0
bene
t
Plaintiff argues that she should be given the
of the doubt and awarded
ts unless the ALJ or the
Administration "can prove via
the
dence
------------------
disabili ty
disappears
(Plf.'s Brief at 20,
when
DAA
emphasis
is
removed
original. )
that
from
the claimant's
the
picture.
II
This argument is a
slight misstatement of the law in at least three regards.
as
s
ra te effects of DAA from
rst,
scussed above, the consensus among courts in this Circuit is
that the burden is on the claimant, not the ALJ, to establish whether
36
DAA is or is not material to the disability determination.
Second,
EM-96200 on which Plaintiff relies states that when determining what,
if any, impairment-re
alcohol free
information,
ted limitations remain during a drug and/or
iod, "reasonable inferences may be drawn from such
but
they
should
never
This is
the
point
that
EM-96200, Answer
same standard applied throughout an ALJ' s analysis,
not only where DAA is a
"The Sequential
reasonable
to
documentation. u
presumptions are substituted
31.
extend
See Social Security Ruling 86-8,
ctor.
luation Process,u22 noting that the ALJ may draw
inferences,
but
"presumptions,
speculations,
suppositions should not be substituted for evidence. u
and
Third, the
question is not whether the "claimant's disability disappears when
DAA is removed from t
cture.
U
Rather, the question is the same
as in any other disability analysis:
given the severity of the
recognized limitations as shown by the medical and other evidence
of record, is the claimant capable of performing substantial gainful
activity avail
e in the economy?
In her final argument, Plaintiff analogizes this case to that
of Ambrosini
supra.
In Ambrosini, the court noted that
22
"Social Security Rulings are agency rulings published 'under the
authority of the Commissioner of Social Security' and 'are binding on all
components of the
al Security Administration.'" Sykes, 228 F.3d at
271, citing 20 C.F.R. § 402.35(b) (1).
"Rulings do not have the force and
effect of the law or regulations but are to be relied upon as
s
in determining other cases where the facts are basically the same."
id., quoting Heckler v. Edwards, 465 U.S. 870, 873, n.3 (1984).
37
[t] he problem with the ALJ's reasoning is that the
dentiary record fails to identify any . . . periods of
improvement between Ambrosini's alleged periods of
substance abuse and sobriety . . . . With no medical records
showing when Ambrosini was or was not sober and no
consistent self-reports from Ambros
there is no
logical way to determine, as the ALJ did, that Ambrosini
improves when he is not abusing substances.
(PIL's
f at 24,
Based on
s reasoning, the Ambrosini court concluded the ALJ had
quoting Ambrosini,
727 F.
by finding the claimant not eligible
Supp.2d at 431.)
r benefi ts.
argues that the ALJ here made the same error
Plaintiff
his reasoning is
de
because he fails to point to sufficient evidence that
establi
s
sobriety.
that
her
condition
improves
during
her
periods
of
(Plf.'s Brief at 25.)
Even a cursory comparison shows why this case and Ambrosini
should be distinguished.
Unlike that case, here, we have evidence
of two three- to eight-month periods of at least partial sobriety.
A careful review of the evidence from these
ods shows that while
Ms. Davis did continue to experience depress
symptoms, her mental
health problems were not severe enough to cause her to return to
inpatient treatment, she was able to ta
to improve her I
an abus
a number of posi ti ve steps
ng conditions, e.g., applying for jobs, leaving
husband, and searching for an apartment.
Although it is
true
mental condition did not significantly improve immediately
after
stopped abusing drugs and alcohol, over a period of time,
her GAF scores rose to 60 or 65, indicative of no more than moderate
38
symptoms or difficulties making social or occupational adjustments.
We recognize that the ALJ did not perform as precisely as he
might have the two-part analysis mandated by the Administration
when there is evidence of drug or alcohol use as well as another
medically-documented impairment.
However,
an ALJ need not "use
particular language or adhere to a particular format in conducting
his analysis."
Jones v. Barnhart, 364 F.3d 501,505 (3d Cir. 2004);
see also Rivera v. Comm'r of Soc. Sec., No. 05 1351, 2006 U.S. App.
LEXIS 2372, * 3 (3d Cir. Jan. 31, 2006) ("The only requirement is that,
reading the ALJ's decision as a whole,
there must be sufficient
1_1, 2008
development of the record and explanation of findings") ; ___
U.S. App. LEXIS 16270, at *52-*53 (summa
zing the evidence the ALJ
considered which showed McGill's mental impairments were severe only
when they coincided with DAA and concluding it would not disturb the
ALJ's findings because "viewed as a whole, a reasonable mind might
accept the record evidence as adequate to support the ALJ' s findings
that McGill's behavioral and functional problems were attributable
to DAA, and that in the absence of DAA, she would not be disabled. 1/)
(Internal quotations and citations omitted.)
Appeals
for
the
Seventh
Circuit
has
As the U.S. Court of
noted,
"No
principle
of
administrative law or common sense requires us to remand a case in
quest of a perfect opinion unless there is reason to believe that
the remand might lead to a different result."
39
Fisher v. Bowen, 869
F.2d 1055, 1057
(7th
Cir. 1989); see also Rutherford, 399 F.3d at 553
(remand unnecessary when it would not affect the outcome of the case. )
We find that substantial evidence supports the ALJ' s conclusion that
were Ms. Davis able to refrain from the use of drugs or alcohol, she
would be able to perform a
limited range of light work which
accommodated her depression and other mood disorders.
Having concluded none of Plainti
arguments provides a reason
for this Court to reverse the ALJ's decision denying benefits or to
remand for further consideration, Plaintiff's motion for summary
judgment is denied and Defendant's motion is granted.
An appropriate Order follows.
November _~IJ_, 2011
William L. Standish
United States
strict Judge
40
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