DUNN v. ASTRUE
Filing
15
ORDER denying 9 Plaintiff's Motion for Summary Judgment and granting 13 Defendant's Motion for Summary Judgment. Signed by Judge Cathy Bissoon on 6/28/11. (dcd)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRENDA JAYNE DUNN,
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Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
Civil Action No. 10-1551
Magistrate Judge Bissoon1
MEMORANDUM AND ORDER
I. MEMORANDUM
For the reasons that follow, Plaintiff’s Motion for Summary Judgment (ECF No. 9) will
be denied, and Defendant’s Motion for Summary Judgment (ECF No. 13) will be granted.
Brenda Jayne Dunn (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g),
seeking review of the final determination of the Commissioner of Social Security (“Defendant”
or “Commissioner”) denying her application for disability insurance benefits (“DIB”)
and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act,
42 U.S.C. §§ 401-433, 1381-1383f (“Act”).
The Administrative Law Judge (“ALJ”) denied benefits to Plaintiff following two
separate administrative hearings on October 29, 2008, and March 4, 2010. (R. at 5, 44).2
Plaintiff then filed a Complaint in this Court on November 23, 2010.
(ECF No. 2).
By consent of the parties, the undersigned sits as the District Judge in this case. See Consent
forms (ECF Nos. 8 & 11).
2
Citations to ECF Nos. 6 through 6-6, the Record, hereinafter, “R. at __.”
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Defendant filed his Answer on January 31, 2011. (ECF No. 3). Cross Motions for Summary
Judgment followed. (ECF Nos. 9, 13).
Following the required 5 step analysis,3 the ALJ determined that Plaintiff had medically
determinable severe impairments in the way of bipolar disorder, cocaine abuse, opioid abuse,
alcohol abuse, and substance induced mood disorder. (R. at 118). Plaintiff was determined to be
disabled because of her drug and alcohol abuse (“DAA”). However, in the absence of DAA,
she had the functional capacity to perform a full range of work at all exertional levels not
involving detailed or complex tasks, a high stress work environment, significant decision
making, direct interaction with the public, or more than occasional interaction with co-workers,
and further limited to work that was routine in nature. (R. at 121). Consistent with the testimony
of vocational experts, Plaintiff qualified for a significant number of jobs in existence in the
national economy. (R. at 38-40, 85-87, 125-26).
Plaintiff argues that the ALJ failed to correctly analyze the impact of DAA upon her
ability to work, failed to adequately discuss and weigh the medical notes of Harshad Patel, M.D.
and Fred Gallo, Ph.D., and – as a result of these failures – did not create an RFC assessment or
hypothetical question that adequately accommodated all of Plaintiff’s credibly established
functional limitations. (ECF No. 10 at 14-22).
With respect to DAA, the Act states that “an individual shall not be considered to be
disabled . . . if alcoholism or drug addiction would . . . be a contributing factor material to the
Commissioner’s determination that the individual is disabled.” Ambrosini v. Astrue,
727 F. Supp.2d 414, 428 (W.D. Pa. 2010) (quoting 42 U.S.C. §§ 423(d)(2)(c), 1382c(a)(3)(J)).
According to 20 C.F.R. §§ 404.1535 and 416.935, the “key factor” in making the above
3
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see Barnhart v. Thomas, 540 U.S. 20, 24-25
(2003).
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determination is whether a claimant would continue to be disabled if they ceased using drugs
and/or alcohol. See also Nomes v. Astrue, 155 Soc. Sec. Rep. Serv. 860, 2010 WL 3155507,
*7-8 (W.D. Pa. Aug. 3, 2010) (citation to quoted source omitted). Further, “a materiality finding
must be based on medical evidence, and not simply on pure speculation about the effects that
drug and alcohol abuse have on a claimant’s ability to work.” Ambrosini, 727 F. Supp.2d at 430
(citing Sklenar v. Barnhart, 195 F. Supp.2d 696, 699-706 (W.D. Pa. 2002)).
It is undisputed that, throughout the case record, there is significant evidence of
Plaintiff’s difficulties with DAA.
However, Plaintiff contends that apart from this DAA,
her organic mental disorders were sufficiently limiting that she was incapable of holding full
time employment and that the ALJ did not properly distinguish between limitations attributable
to her DAA and limitations attributable to her other disorders. While the ALJ did not explicitly
provide specific limitations attributable to Plaintiff’s DAA, he analyzed – at length – the effects
of Plaintiff’s DAA on her functional capacity and deduced what limitations would exist if
Plaintiff were to be clean and sober.
It is significant to note – and the record supports – the ALJ’s contention that DAA was
present during, if not the immediate cause of, Plaintiff’s most recent hospitalizations.
(R. at 314-15, 319-21, 327-28, 380-81, 539, 541). While being treated at Sharon Regional
Behavioral Health services, Plaintiff’s prognosis was considered to be poor because of her DAA,
and that with sustained treatment she would see improvement.
(R. at 484, 489-94, 521).
Plaintiff even stated that hallucinations she suffered were attributable to her cocaine abuse.
(R. at 484, 489-94, 521).
While Harshad Patel, M.D. opined that Plaintiff was not capable of employment due to
her inability to adapt, her inability to make work related decisions, her inability to get along with
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supervisors, and her inability to maintain a schedule, he concurrently diagnosed her with cocaine
dependence and pain medication dependence. (R. at 528-33). While under Dr. Patel’s care,
Plaintiff was admitted to the hospital following a drug relapse. (R. at 539-41). Further, while
Fred Gallo, Ph.D. gave Plaintiff a poor prognosis in terms of her functional capacity, he also
contemporaneously diagnosed Plaintiff with cocaine dependence in early partial remission,
indicating continued – though improving – DAA.
(R. at 525).
He also found that with
improvement in her mental health status, Plaintiff could work. (R. at 525).
When placed in a hospital without the opportunity for DAA, and forced to comply with
her medication regimen, Plaintiff tended to show substantial improvement in her mental state.
It was frequently noted in the medical record that Plaintiff had medication and therapeutic
compliance issues that affected her mental status. (R. at 15, 27, 34, 61-62, 78, 482, 516, 539).
As stated by the ALJ, and admitted by Plaintiff, when Plaintiff adhered to her medication and
treatment regimens and abstained from DAA, her mental state was less impaired and her
symptoms could be controlled. (R. at 20-21, 26, 61-63, 67, 315-18, 396, 528-33). As such,
the ALJ provided substantial evidence to support his conclusion that DAA was material to
Plaintiff’s inability to work.
With respect to the ALJ’s consideration of Drs. Patel and Gallo’s medical opinions,
the Court of Appeals for the Third Circuit has held that a treating physician’s opinions may be
entitled to great weight – considered conclusive unless directly contradicted by evidence in a
claimant’s medical record – particularly where the physician’s findings are based upon
“continuing observation of the patient’s condition over a prolonged period of time.” Brownawell
v. Comm’r of Soc. Sec., 554 F.3d 352, 355 (3d Cir. 2008); Plummer v. Apfel, 186 F.3d 422, 429
(3d Cir. 1999) (citing Rocco v. Heckler 826 F.2d 1348, 1350 (3d Cir. 1987)).
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However, a showing of contradictory evidence and an accompanying explanation will allow an
ALJ to reject a treating physician’s opinion outright, or accord it less weight. Id. Further,
the determination of disabled status for purposes of receiving benefits – a decision reserved for
the Commissioner – will not be affected by a medical source simply because it states that a
claimant is “disabled,” or “unable to work.” 20 C.F.R. §§ 404.1527(e), 416.927(e).
Here, the ALJ was entitled to give Dr. Patel’s functional assessment of Plaintiff’s work
activities little weight.
Preceding Dr. Patel’s list of Plaintiff’s marked limitations and his
conclusion that Plaintiff could not work, was an account of Plaintiff’s observed psychological
symptoms which was relatively mild in comparison. Dr. Patel found Plaintiff’s racing thoughts,
hallucinations, and mood swings all were controlled with medication. (R. at 528-33). Plaintiff
was typically alert and oriented, with fair concentration, and without delusions or paranoid
thinking. (Id.). Plaintiff also appeared relaxed, exhibited relevant speech and coherent thought
processes, her concentration, memory, and cognition were fair, and Plaintiff denied suicidal
ideation and hallucinations. (Id.). She maintained a relationship with her girlfriend and was
appropriate with family and friends. (Id.). Dr. Patel also assessed a GAF score of 70, suggesting
only mild functional limitation.
(Id.).
The internal inconsistencies of Dr. Patel’s reports
supported the ALJ’s denial of substantial weight to Dr. Patel’s opinions on limitation and
disability.
Dr. Gallo’s opinion also was adequately considered by the ALJ. Despite the difficulty
interpreting the meaning of the Minnesota Multiphasic Personality Inventory - 2, Dr. Gallo was
able to come to a number of conclusions based upon the answers provided. (R. at 522-27).
However, the psychological profile created admittedly was invalid.
(Id.).
The ALJ was,
therefore, not required to give this portion of Dr. Gallo’s opinion significant weight.
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With respect to the results of the other tests conducted by Dr. Gallo, there is no indication that
they were not adequately accommodated by the ALJ’s RFC assessment. Moreover, Dr. Gallo
only diagnosed Plaintiff’s drug dependence as being in early, partial remission, and indicated
that with improvement in Plaintiff’s psychiatric condition she would be capable of job training
and placement. (Id.).
Incidentally, Plaintiff briefly mentions that the ALJ erred in his consideration of Ronald
Refice, Ph.D.’s assessment of Plaintiff’s functional capabilities by mischaracterizing the
evidence as medical in nature, when it actually was vocational in nature. (ECF. No. 10 at 23).
While this may be true, Plaintiff fails to illustrate how the ALJ’s consideration of this evidence
was flawed in light of the ALJ’s finding that Dr. Refice’s opinions regarding Plaintiff’s
limitations were unduly severe and inconsistent with the medical record as a whole. (R. at 124).
As such, the Court is not persuaded that the ALJ erred with respect to this evaluation.
Lastly, in terms of the ALJ’s hypothetical to the vocational expert and subsequent RFC
assessment, based upon the above discussion it is clear that the ALJ provided a thorough analysis
of the medical evidence underlying Plaintiff’s claim.
Having provided significant record
evidence to support his consideration of Drs. Patel and Gallo’s medical opinions,
and determination that Plaintiff’s DAA was material to her disability, this Court concludes that
all of Plaintiff’s credibly established medical impairments were properly incorporated into the
hypothetical to the vocational expert and were accommodated fully in the ALJ’s RFC
assessment. Based upon the foregoing, the ALJ’s decision to deny benefits was supported by
substantial evidence.
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For all of the reasons stated above, the Court enters the following:
II. ORDER
Plaintiff’s Motion for Summary Judgment (ECF No. 9) is DENIED, Defendant’s Motion
for Summary Judgment (ECF No. 13) is GRANTED, and the decision of the ALJ is affirmed.
IT IS SO ORDERED.
June 28, 2011
s\Cathy Bissoon
Cathy Bissoon
United States Magistrate Judge
cc (via ECF email notification):
All Counsel of Record
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