Martini-Roth v. Commissioner of Social Security Administration

Filing 24

ORDER reversing the decision of the Commissioner and remanding the action for further administrative proceedings pursuant to 42 U.S.C. § 405(g). Signed by Magistrate Judge Shiva V. Hodges on 08/23/2013. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Allyson D. Martini-Roth,
Plaintiff,
vs.
Carolyn W. Colvin, Acting
Commissioner of Social Security
Administration,1
Defendant.

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C/A No.: 1:12-1568-SVH

ORDER

This appeal from a denial of social security benefits is before the court for a final

order pursuant to 28 U.S.C. § 636(c), Local Civil Rule 73.01(B) (D.S.C.), and the
Honorable Terry L. Wooten’s order dated August 7, 2012, referring this matter for
disposition.

[Entry #11].

The parties consented to the undersigned United States

Magistrate Judge’s disposition of this case, with any appeal directly to the Fourth Circuit
Court of Appeals.
Plaintiff files this appeal pursuant to 42 U.S.C. § 405(g) of the Social Security Act
(“the Act”) to obtain judicial review of the final decision of the Commissioner of Social
Security (“Commissioner”).

The two issues before the court are whether the

Commissioner’s findings of fact are supported by substantial evidence and whether she
applied the proper legal standards. For the reasons that follow, the court reverses and
remands the Commissioner’s decision for further proceedings as set forth herein.

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February
14, 2013. Pursuant to Fed. R. Civ. P. 25(d), Carolyn W. Colvin is substituted for
Commissioner Michael J. Astrue as the defendant in this lawsuit. 

I.

Relevant Background
A.

Procedural History

On November 9, 2009, Plaintiff filed an application for disability insurance
benefits (“DIB”) in which she alleged her disability began on August 15, 2008. Tr. at
112–15. On November 17, 2009, she applied for Supplemental Security Income (“SSI”)
alleging the same disability onset date. Tr. at 119–22. Her DIB application was denied
on the grounds that she did not have enough work credits to qualify for benefits. Tr. at
53–58. Her SSI application was also denied initially and upon reconsideration. Tr. at
50–51. In her request for a hearing, Plaintiff noted that she was applying for DIB and
SSI. Tr. at 74. On December 14, 2011, Plaintiff had a hearing before Administrative
Law Judge (“ALJ”) Marcus Christ.

Tr. at 25–47 (Hr’g Tr.).

The ALJ issued an

unfavorable decision on January 9, 2012, finding that Plaintiff was not disabled within
the meaning of the Act.

Tr. at 9–18.

Subsequently, the Appeals Council denied

Plaintiff’s request for review, making the ALJ’s decision the final decision of the
Commissioner for purposes of judicial review. Tr. at 1–3. Thereafter, Plaintiff brought
this action seeking judicial review of the Commissioner’s decision in a complaint filed on
June 11, 2012. [Entry #1].
B.

Plaintiff’s Background and Medical History
1.

Background

Plaintiff was 45 years old at the time of the hearing. Tr. at 36. She completed
high school and some college. Tr. at 37. Her past relevant work (“PRW”) was as a

2

caterer; book sales representative; and grocery clerk supervisor. Tr. at 42. She alleges
she has been unable to work since August 15, 2008. Tr. at 112, 119.
2.

Medical History
a.

Mental Impairments
1)

Medical University of South Carolina Institute of
Psychiatry

Plaintiff was treated at the Medical University of South Carolina (“MUSC”)
Institute of Psychiatry from January 1998 through September 2004 undergoing individual
and group therapy. Tr. at 238–302. Notes in her medical records relate primarily to her
struggles with alcoholism. See, e.g., Tr. at 238, 242, 243, 245, 252, 258, 262, 268, 269,
272, 273, 275, 284. She was also treated for post-traumatic stress disorder (“PTSD”), Tr.
at 259, 268; suicidal ideations and attempts, Tr. at 239, 240, 242, 264, 279; and
depression, Tr. at 262, 287, 288. She was treated for bipolar disorder, Tr. at 270, and
reported manic episodes that included racing thoughts and nighttime hallucinations, Tr. at
266, 276, 279, 281, 288. Plaintiff summarized her MUSC records in detail in her brief,
and the court incorporates that summary by reference herein.
2)

Charleston Mental Health Center

Plaintiff was also treated at the Charleston Mental Health Center (“CMHC”) from
March 2007 through August 2010.

On May 25, 2007, Plaintiff was noted to be

committed to staying sober and attending Alcoholics Anonymous (“AA”). Tr. at 310.
She was also noted to be committed to taking her medications as prescribed and
scheduling appointments as recommended. Id. She expressed a need to learn coping

3

skills to handle environmental stressors. Id. She was diagnosed with bipolar disorder,
PTSD, and alcohol dependence. Id.
On September 11, 2008, during her treatment with CMHC, Plaintiff was seen at
Charleston Pain and Rehabilitation. Tr. at 306. Many of the notes are illegible; however,
it appears from those that are legible that she admitted to drinking “a lot” that day. Id.
She exhibited slurred speech, was “speaking bizarrely,” and falling asleep. Id.
In November of 2008, Plaintiff returned to CMHC where a physician noted she
was recently hospitalized after being assaulted at Crisis Ministries by some men. Tr. at
551. The assault occurred on a Saturday night when she went to chair an AA meeting. It
caused her to relapse and become suicidal and she was consequently hospitalized at Bon
Secours St. Francis (“St. Francis”) and detoxed. Id. She reported that since leaving the
hospital, she had been having trouble sleeping. Id.
On February 1, 2010, Plaintiff returned to CMHC because she was court-ordered
to involuntary commitment to receive inpatient treatment. Tr. at 547. She was ordered to
receive treatment at CMHC until space opened up at Morris Village Rehabilitation Center
(“MVRC”). Id. She was vague when questioned and stated that she was out of some of
her medications and had totaled her car. Id. She reported taking herself off of Neurontin
and was counseled on the importance of taking her medications as prescribed. Id. The
therapist noted that Plaintiff could only vocalize insight and did not have it. Id. She was
prescribed Prozac, Depakote, Neurontin, Trazodone, and Vistaril. Tr. at 548.
On April 27, 2010, Plaintiff began “the conversation by stating ‘I have thoughts of
suicide.’” Tr. at 545. She described her thoughts of suicide as occurring out of the blue
4

and that they possibly put her “at peace.” Id. However, she expressed how much she
loved her children and discussed that she found her own mother in a suicide attempt
when she was a child. Id. She also discussed her thoughts that if she had not died yet as
a result of her alcoholism, then there must be a plan for her. Id. Plaintiff was noted to be
struggling with sobriety, but continued to receive treatment. Tr. at 546.
Plaintiff was seen on August 30, 2010, after a recent hospitalization. Tr. at 640.
The treating clinician concluded Plaintiff had problems maintaining a primary support
group, had inadequate social support, and had no structured income. Tr. at 639. Plaintiff
was also noted to lack the support necessary to manage trauma as a triggering event, and
it was further noted that her relapses with alcohol caused her not to take her medication
as prescribed. Tr. at 639–40.
3)

Plaintiff’s Hospitalizations

The record reflects that Plaintiff was hospitalized 12 times between March 1998
and January 2010. On March 23, 1998, she presented with suicidal ideation and was
committed to MUSC for one week to provide stabilization and crisis management. Tr. at
289–90. It was noted that she had been hospitalized four times and had a history of
bipolar disorder and alcohol dependence. Tr. at 289. She was also noted to have a
history of seizures, black outs, and auditory and visual hallucinations due to alcohol, but
she denied auditory or visual hallucinations when she did not use alcohol. Id. The
treating physician observed that she appeared to live with inner rage and diagnosed her
with borderline personality disorder consumed with anger and projection. Tr. at 290.
She was prescribed Depakote, Zoloft, and Ativan. Id.
5

On July 20, 1998, Plaintiff voluntarily admitted herself to MUSC for alcohol
dependence and abusing nonprescription Xanax. Tr. at 291. She reported drinking one
gallon of vodka per day and stated that she had suffered from alcohol dependence since
her late teens. Id. The treating physician strongly encouraged her to abstain from alcohol
and attend AA meetings. Tr. at 292. She was discharged on July 22, 1998. Tr. at 291.
The same day she was discharged from her voluntary commitment, she was
readmitted involuntarily to MUSC. Tr. at 293. Although she had plans to go to a longterm substance abuse program in Florida, she returned home after her discharge and
drank several glasses of vodka. Id. She then drove her car and was stopped by police
because she was weaving on the Cooper River Bridge. Id. The police escorted her to the
hospital where she was readmitted with a blood alcohol level of 0.14. Id. She was
committed to the Center for Drug and Alcohol Programs and afforded group, individual,
and milieu psychotherapy. Id. She was given Zyprexa, Depakote, and Antabuse and
strongly encouraged to attend AA and abstain from alcohol use. Tr. at 294.
On August 16, 1998, Plaintiff was again admitted to the Center for Drug and
Alcohol Programs. Tr. at 295. This time, she was committed due to suicidal ideation and
a plan to kill herself with a knife. Id. She still suffered from alcohol dependence and was
reportedly drinking up to twenty vodka drinks daily. Id. She had delirium tremens and
alcohol withdrawal seizures. Id. She was not experiencing hallucinations, but she had
experienced blackouts and expressed feeling bad about her drinking. Id. She had not
been complying with her medications of Depakote and Zyprexa for two weeks and she
was tearful and angry, but denied any suicidal ideation. Id. She was given Depakote,
6

Trazodone, and Motrin, and her Zyprexa was discontinued. Tr. at 296. She was very
uncooperative with the hospital staff and exhibited numerous aggressive and passive
aggressive features. Id. She was noted to have demonstrated all of the criteria for
borderline personality disorder. Id. She was discharged on September 3, 1998. Tr. at
295.
Plaintiff was committed to MUSC for suicidal ideation on February 7, 1999, after
writing six suicidal notes and telling her sister about them. Tr. at 298. She still struggled
with alcohol dependence and although she was recently discharged from the Roper Detox
Unit, she was consuming a half gallon of vodka per day. Id. Her blood alcohol level was
0.315 on admission and her urine drug screen was positive for barbiturates. Id. She
suffered from environmental and social stressors such as being estranged from her
family, multiple arrests and DUIs, and not having custody of her children. Id. Her
mental status exam showed she was uncooperative, hostile, and combative. Id. She was
again committed to the Center for Drug and Alcohol Programs and given group,
individual, and milieu psychotherapy. Tr. at 299. She was discharged on February 9,
1999. Tr. at 298.
On January 14, 2004, Plaintiff was hospitalized for stabilization and suicidal
ideation and seen by Stephen Mcleod-Bryant, M.D. Tr. at 300. She weighed 102 pounds
and her mental status examination showed she exhibited dysphoric mood and passive
suicidal ideation without a plan to act. Tr. at 300–01. She reported that she did not really
wish to kill herself because she had “a lot to live for.” Tr. at 301.

7

Plaintiff was admitted to St. Francis on November 7, 2008, because she was
suicidal. Tr. at 347. Dr. Rosen attended to her and his notes show he questioned her
history of bipolar disorder. Id. He opined that she had little history of long-term sobriety
so it was difficult to diagnose anything other than substance-induced mood disorder. Id.
He noted that she had been taking Depakote for years, but that it was primarily for her
seizures and she had several withdrawal seizures in the past. Id. She was detoxed with
Valium, her mood improved after two or three days, and she denied any suicidal ideation
throughout her stay. Tr. at 347–48. Dr. Rosen diagnosed her with substance abuse mood
disorder, alcohol abuse and dependence, seizure disorder, and anxiety disorder not
specified. Tr. at 348. He prescribed Prozac for her anxiety and instructed her to continue
to take Depakote. Id.
On February 13, 2009, police took Plaintiff to the emergency room at St. Francis
after she had been drinking heavily. Tr. at 336. Her chart described her as “well known
to [the] department” as a chronic alcoholic. Id. She was kept in the emergency room
(“ER”) until her blood alcohol level decreased and she was aware of her surroundings
and not suicidal. Tr. at 337. She did not meet the criteria for involuntary commitment
and was released into the custody of the county sheriff. Id. Her primary diagnosis was
alcohol dependence. Id.
On June 21, 2009, Plaintiff was taken to the emergency room at St. Francis
hospital after having a seizure in a bar. Tr. at 320–21. Bystanders reported she fell from
her seat at the bar and experienced a seizure for roughly four minutes. Tr. at 321. When
she awoke she felt “slightly off” and it was noted that she had a history of seizures since
8

childhood. Id. She informed the doctor that she had been taking several different
medications, but that she was not taking any medication for her seizures at that time. Id.
She admitted that she was drinking that day, but stated that alcohol use usually did not
precede her seizures. Id.
On January 20, 2010, Plaintiff was court ordered for involuntarily commitment to
the South Carolina Department of Mental Health for 30 days of inpatient treatment at the
MVRC. Tr. at 123. She was ordered for involuntary commitment because, due to her
mental condition, she “lack[ed] sufficient insight or capacity to make responsible
decision[s] with respect to her treatment” and “there [was] a likelihood of serious harm to
herself or others.” Tr. at 126.
Police took Plaintiff to MUSC on July 24, 2010, again due to suicidal ideation and
planning and alcohol intoxication. Tr. at 635. She stated that she drank a half gallon of
vodka the night before, which was a reaction to her husband’s recent incarceration. Tr. at
593. She also expressed a desire to commit suicide by jumping off a balcony. Id. When
she was taken to the ER, she was highly agitated, so she was placed in seclusion. Id. She
was discharged on July 27, 2010. Tr. at 635.
From December 2 through December 13, 2010, Plaintiff was involuntarily
hospitalized at Palmetto Lowcountry Behavioral Health (“PLBH”) due to an alcohol
binge and a Xanax overdose. Tr. at 661. Lydia W. Haren, M.D., noted that Plaintiff had
a long history and pattern of suicide attempts while under the influence of alcohol. Id.
Dr. Haren also reported that Plaintiff had been in inpatient treatment on at least fourteen
different occasions at the Institute of Psychiatry and had been at PLBH at least two times.
9

Tr. at 667. On this instance, she presented to the ER with a blood alcohol level of .30.
Tr. at 661. She was intubated in the intensive care unit before being transferred to PLBH,
where, upon presentation, she appeared confused and sedated and she had difficulties
concentrating. Id. She reported experiencing multiple psychosocial stressors, including
her husband being in jail. Tr. at 667. She denied alcohol use on a daily basis, but
explained she had an issue with binge drinking. Id. On each of those occasions, she
drank a couple of pints of vodka. Id. She reported that her longest stint of sobriety was
five months roughly fifteen years prior. Id. Dr. Haren found that while Plaitniff’s
intelligence was probably average, her insight and judgment were severely impaired. Tr.
at 668. Although she cooperated, she demonstrated a limited social network and limited
coping skills. Id. Dr. Haren diagnosed her with alcohol dependence and borderline
personality disorder. Tr. at 662.
4)

Mental Status Evaluations

On April 19, 2010, Plaintiff underwent a mental status examination conducted by
state-agency consultant John Custer, M.D. Tr. at 568. Dr. Custer noted that Plaintiff was
discharged from MVRC after being committed for 30 days based on a court order. Id.
Before that she was hospitalized at MUSC and after she was released, she was arrested
for a DUI. Tr. at 568. Dr. Custer noted that Plaintiff had a history of unstable behavior,
made poor decisions, and used bad judgment. He further noted that her social history
was rocky, especially since she lost her job with Goodwill in 2008. Tr. at 570. Since she
lost her job, she had been doing a lot of binge drinking and neglecting her medications, so
she admitted that she was a “mess.” Id. Although Plaintiff denied drug abuse, there was
10

a suggestion in her medical records that she may have abused benzodiazepines in the
past. Id. Dr. Custer opined that she had a tendency to become vague when he asked her
direct questions about her alcohol abuse and history. Id. In his prognosis, he stated she
appeared to primarily suffer from alcohol dependence, which resulted from a period of
instability for the past fifteen months. Tr. at 571. He speculated that she could improve
if she abstained from alcohol. Id. He diagnosed her with alcohol dependence in early
remission, bipolar disorder history, and borderline personality disorder/and or histrionic
personality traits. Id. He recommended that she obtain a representative payee due to her
history of substance abuse and poor money management. Id.
On May 13, 2010, state-agency consultant Olin Hamrick Jr., PhD, completed a
Psychiatric Review Technique (“PRT”) regarding Plaintiff. Tr. at 553. He opined that
Plaintiff had non-severe affective (bipolar) and substance abuse disorders. Id. He further
opined that she was mildly restricted in activities of daily living; had mild difficulties in
maintaining social functioning, concentration, persistence, and pace; and had no episodes
of decompensation. Tr. at 563.
b.

Physical Impairments

On July 22, 2009, Plaintiff visited Southern Orthopedics and Sports Medicine
(“SOSM”) with left shoulder pain following a bicycle accident. Tr. at 414. She reported
that the pain occurred occasionally, was worsening, and was aggravated by movement
and overhead reaching. Id. As a result of the pain, she stated that she suffered from
decreased mobility, difficulty sleeping, night pain, nighttime awakening, numbness,
swelling, tingling in her arms, tenderness, and weakness. Id.
11

She returned to SOSM on August 12, 2009, continuing to complain of left
shoulder pain. Tr. at 411. Dr. Brodie E. Mckoy referred her to Charleston Imaging for
an MRI. Tr. at 388. At Charleston Imaging, Dr. Goltra opined that her shoulder had mild
widening of the left acromioclavicular joint. Tr. at 389. There was some fluid signal
intensity within the joint space and mild distention of the joint capsule. In addition, there
was mild supraspinatus tendinopathy. Id.
On August 31, 2009, Plaintiff reported that her pain severity level was a six and
her problem was not changing. Tr. at 409. Her symptoms were stiffness, swelling, and
weakness. Id. Plaintiff followed up with Dr. Mckoy on September 28, 2009, and stated
that her pain level was a nine.

Tr. at 407.

She reported that her pain occurred

occasionally and showed mild worsening. Id. She described the pain as aching and sharp
and aggravated by lifting and movement. Id. However, she stated that it was relieved by
prescription medication. Id.
Plaintiff followed up with SOSM again on October 14, 2009. Tr. at 404. She
stated that her shoulder pain severity level was a six and it showed mild worsening. Id.
Dr. Mckoy discussed her options for treatment with her and they elected to proceed with
surgery. Tr. at 405.
C.

The Administrative Proceedings
1.

The Administrative Hearing
a.

Plaintiff’s Testimony

At the hearing on December 14, 2011, Plaintiff testified that she was diagnosed
with bipolar disorder in 1997 and had been disabled since 2008. Tr. at 29. She stated
12

that in 2008 she worked as a disabled client for Goodwill Industries for eight months, but
was terminated as a result of a bipolar episode. Id. During the episode, she had a box
cutter in her hand that could have caused harm. Id. She testified that since the episode,
she has not been mentally stable enough to seek employment. Id.
Plaintiff testified that she has suffered from bipolar disorder for the majority of her
life, but she was unaware that this affliction was the root of her problems until her
diagnosis in 1997. Id. As a result of her illness, she has been grandiose, manic, and
depressed and has taken several prescription medications. Tr. at 29–30. She stated that
she also had problems with substance abuse and had been institutionalized excessively
during the prior 15 years.

Tr. at 30.

She testified that she was hospitalized

approximately three times since 2008, twice following suicide attempts. Id. Plaintiff
stated that she had been sober since November 29, 2010, except for an incident three
months prior to the hearing. Tr. at 31. She stated that she continued to receive mental
health treatment every Tuesday, and although the treatment had been helpful, she
continued to experience good days and bad days. Tr. at 31, 37.
Plaintiff explained that she was extremely forgetful and was unable to focus for
more than 15 to 20 minutes at a time. Tr. at 32. She stated that she also suffered from
fearfulness, anxiety, and PTSD. Id. She said she suffered from PTSD after being
attacked outside of Crisis Ministries while attending an AA meeting. Id. As a result of
the attack, she stated that she had bad nightmares, was afraid to be alone with a male, and
could not be alone at night without a light on. Tr. at 32–33.

13

Plaintiff stated that she lived with a friend and his elderly mother. Tr. at 33. She
said she was able to help her friend’s mother, groom herself, cook, and do some light
housework and gardening. Tr. at 33, 38. She testified that to pass the time, she read “a
lot,” studied the Bible, and watched church programs on television on Saturdays and
Sundays. Tr. at 33, 39. She stated she also visited with her family who would pick her
up and drop her off. Tr. at 39. She stated that she was unable to go to the grocery store
alone because she was afraid. Tr. at 32. She said she was unable to drive because her
driver’s license was suspended, but that she was eligible for Tel-A-Ride because her
bipolar disorder was listed as severe. Tr. at 33, 40. She testified that although her lack of
activity reduced some stress for her, it did not alleviate all stressful situations in her life,
including her lack of custody of her children due to her mental illness. Tr. at 33–34.
Plaintiff stated that her medications caused side effects including severe dizziness
and fatigue. Tr. at 34–35. She testified that she often changed medications and doses
because the type and dose of medications for bipolar disorder involves trial and error. Tr.
at 35.
Plaintiff stated that she had looked for low-stress work, but she was unable to
obtain any, partly due to her record of driving under the influence. Tr. at 39. She said
that her mental issues were her major concern and that she had trouble focusing on tasks.
Tr. at 40.
b.

Vocational Expert Testimony

A Vocational Expert (“VE”) reviewed the record and testified at the hearing. Tr.
at 41. The VE categorized Plaintiff’s PRW as a caterer as skilled, light work; as a book
14

sales representative as skilled, light work; and as a grocery clerk supervisor as skilled,
light work.

Tr. at 42.

The ALJ described a hypothetical individual of Plaintiff’s

vocational profile who could perform work at all exertional levels, but could not be
exposed to unprotected heights and was limited to simple, routine, repetitive tasks; only
occasional changes in the work setting; and only occasional interaction with the public.
Id. The VE testified that the hypothetical individual would not be able to perform
Plaintiff’s PRW.

Id.

The ALJ asked whether there were any other jobs that the

hypothetical person could perform. Id. The VE identified the jobs of counter clerk,
survey worker, and stock and inventory clerk, but noted that the first two jobs would
require periodic interaction with the public for short periods of time. Tr. at 42–43. The
ALJ then asked the VE to consider the same hypothetical individual, but further limited
the hypothetical to no production or pace work and no interaction with the public. Tr. at
43. The VE stated that the hypothetical individual could still perform the work of a stock
and inventory clerk and could also work as a quality control examiner and a product
tester and weigher. Tr. at 43–44. The VE stated that there would be no jobs available if
the hypothetical individual were off-task for more than an hour and a half or missed more
than two days of work per month. Tr. at 44–45.
2.

The ALJ’s Findings

In his decision of January 9, 2012, the ALJ made the following findings of fact
and conclusions of law:
1.
2.

The claimant has not engaged in substantial gainful activity since
November 9, 2009, the application date (416.971 et seq.).
The claimant has the following severe impairments: affective mood
disorder and alcohol/substance abuse (416.920(c)).
15

3.

4.

5.
6.

7.
8.

9.

10.

The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional limitations: the
claimant should avoid exposure to unprotected heights. She is also limited
to simple, routine, repetitive tasks with only occasional changes in work
setting and no production or pace work. She is restricted to occasional
interaction with the public.
The claimant is unable to perform any past relevant work (20 CFR
416.965).
The claimant was born on October 2, 1966 and was 43 years old, which is
defined as a younger individual age 18–49, on the date the application was
filed (20 CFR 416.963).
The claimant has at least a high school education and is able to
communicate in English (20 CFR 416.964).
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferrable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2).
Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 416.969, and
416.969(a)).
The claimant has not been under a disability, as defined in the Social
Security Act, since November 9, 2009, the date the application was filed
(20 CFR 416.920(g)).

Tr. at 11–18.
II.

Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1)

the ALJ erred by failing to consider Plaintiff’s Title II claim;

2)

the ALJ conducted an improper listing analysis;

3)

the ALJ improperly evaluated Plaintiff’s alcohol use in relation to her
bipolar disorder; and

4)

the ALJ conducted a flawed credibility analysis.
16

The Commissioner counters that substantial evidence supports the ALJ’s findings
and that the ALJ committed no legal error in his decision.
A.

Legal Framework
1.

The Commissioner’s Determination-of-Disability Process

The Act provides that disability benefits shall be available to those persons insured
for benefits, who are not of retirement age, who properly apply, and who are under a
“disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
the inability to engage in any 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
at least 12 consecutive months.
42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations
promulgated under the Act have reduced the statutory definition of disability to a series
of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983)
(discussing considerations and noting “need for efficiency” in considering disability
claims). An examiner must consider the following: (1) whether the claimant is engaged
in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that
impairment meets or equals an impairment included in the Listings;2 (4) whether such

2

The Commissioner’s regulations include an extensive list of impairments (“the
Listings” or “Listed impairments”) the Agency considers disabling without the need to
assess whether there are any jobs a claimant could do. The Agency considers the Listed
impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to
prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a
claimant meets or equals all criteria of any of the Listed impairments for at least one year,
she will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii).
To meet or equal one of these Listings, the claimant must establish that her impairments
17

impairment prevents claimant from performing PRW;3 and (5) whether the impairment
prevents her from doing substantial gainful employment. See 20 C.F.R. § 404.1520.
These considerations are sometimes referred to as the “five steps” of the Commissioner’s
disability analysis. If a decision regarding disability may be made at any step, no further
inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can
find claimant disabled or not disabled at a step, Commissioner makes determination and
does not go on to the next step).
A claimant is not disabled within the meaning of the Act if she can return to PRW
as it is customarily performed in the economy or as the claimant actually performed the
work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82–
62 (1982). The claimant bears the burden of establishing her inability to work within the
meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing
the inability to return to PRW, the burden shifts to the Commissioner to come forward
with evidence that claimant can perform alternative work and that such work exists in the
regional economy. To satisfy that burden, the Commissioner may obtain testimony from
a VE demonstrating the existence of jobs available in the national economy that claimant
can perform despite the existence of impairments that prevent the return to PRW. Walls

match several specific criteria or be “at least equal in severity and duration to [those]
criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen
v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his
impairment is disabling at Step 3).
3
In the event the examiner does not find a claimant disabled at the third step and does not
have sufficient information about the claimant’s past relevant work to make a finding at
the fourth step, he may proceed to the fifth step of the sequential evaluation process
pursuant to 20 C.F.R. § 404.1520(h).
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v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that
burden, the claimant must then establish that she is unable to perform other work. Hall v.
Harris, 658 F.2d 260, 264–65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S.
137, 146 n.5 (1987) (regarding burdens of proof).
2.

The Court’s Standard of Review

The Act permits a claimant to obtain judicial review of “any final decision of the
Commissioner [] made after a hearing to which he was a party.” 42 U.S.C. § 405(g).
The scope of that federal court review is narrowly-tailored to determine whether the
findings of the Commissioner are supported by substantial evidence and whether the
Commissioner applied the proper legal standard in evaluating the claimant’s case. See
Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court’s function is not to “try these cases de novo or resolve mere conflicts in
the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157–58 (4th Cir. 1971); see Pyles v.
Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345
(4th Cir. 1986)). Rather, the court must uphold the Commissioner’s decision if it is
supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson, 402
U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the
court must carefully scrutinize the entire record to assure there is a sound foundation for
the Commissioner’s findings and that her conclusion is rational. See Vitek, 438 F.2d at
1157–58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is
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substantial evidence to support the decision of the Commissioner, that decision must be
affirmed “even should the court disagree with such decision.” Blalock v. Richardson,
483 F.2d 773, 775 (4th Cir. 1972).
B.

Analysis
1.

Plaintiff’s DIB Claim

Plaintiff filed an application for DIB on November 9, 2009, in which she alleged
her disability began on August 15, 2008. Tr. at 112–15. Her DIB application was denied
on the grounds that she did not have enough work credits to qualify for benefits. Tr. at
53–58.

Plaintiff argues that the Commissioner did not address her DIB claim on

reconsideration and that the ALJ erroneously failed to make a final determination on her
DIB claim despite her specific request that the ALJ re-evaluate the question of her date
last insured (“DLI”). [Entry #19 at 24]. She further argues that she may have qualified
for DIB coverage because she met the 20/40 requirement set forth in 20 C.F.R. §
404.130, the Commissioner is permitted to rearrange quarters of coverage to the benefit
of a claimant, and a claimant may establish a “disability freeze” period that impacts her
right to disability benefits. Id. at 25.
The Commissioner responded to Plaintiff’s argument in a footnote stating:
Plaintiff also filed for disability insurance benefits (DIB) under Title II in
November 2009 (Tr. 112, 116). However, the agency properly determined
that she did not meet the requirement of the necessary amount of work
credits for eligibility for DIB (Tr. 53, 56). The Commissioner would
respectfully point out that in her request for review of the hearing decision,
Plaintiff’s counsel only references their representation of Plaintiff in her
claim for Title XVI benefits (Tr. 4–5).
[Entry #21 at 1, n.2].
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The Commissioner’s response contains no argument, rather it rests entirely on the
conclusory assertion that “the agency properly determined” Plaintiff’s eligibility for DIB.
Although the Commissioner contends that Plaintiff’s request for review of the hearing
decision references only her SSI claim, her request for a hearing noted that she was
applying for both DIB and SSI.

Tr. at 74.

In addition, the record contains

correspondence from Plaintiff’s counsel to the ALJ that makes clear that Plaintiff was
seeking review of her DIB claim. Tr. at 233–36. In light of the Commissioner’s failure
to adequately respond to Plaintiff’s argument, the undersigned is unable to determine
whether the Commissioner’s decision regarding Plaintiff’s DLI is supported by
substantial evidence and, thus, is constrained to remand this matter to the ALJ. On
remand, the ALJ is directed to consider and address whether Plaintiff is eligible for DIB
coverage.
2.

Plaintiff’s Remaining Allegations of Error

Plaintiff also argues that the ALJ failed to properly consider whether Plaintiff
meets Listing 12.04(B) and (C), improperly evaluated Plaintiff’s alcohol use in relation to
her bipolar disorder, and conducted a flawed credibility analysis. [Entry #19 at 26–33].
In light of the decision to remand based on the ALJ’s failure to address Plaintiff’s DIB
claim, the court does not address Plaintiff’s remaining allegations of error in detail. The
court notes, however, that the Commissioner’s briefing on these issues is deficient. The
Commissioner’s response to Plaintiff’s Listing argument contains conclusory assertions
with no articulated support. [Entry #21 at 5–6]. The Commissioner’s response to
Plaintiff’s credibility argument likewise contains no support specific to this case. Id. at
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7–8. The Commissioner’s responses on these issues are so general and conclusory that
they could be included in any other case asserting these allegations of error. As to
Plaintiff’s argument that the ALJ erred in evaluating her alcohol use, the Commissioner
provided no response at all.

On remand, the ALJ is directed to consider Plaintiff’s

remaining allegations of error and comply with the applicable laws and regulations in
evaluating them.
III.

Conclusion
The court’s function is not to substitute its own judgment for that of the ALJ, but

to determine whether the ALJ’s decision is supported as a matter of fact and law. Based
on the foregoing, the court cannot determine that the Commissioner’s decision is
supported by substantial evidence. Therefore, the undersigned reverses and remands this
matter for further administrative proceedings pursuant to 42 U.S.C. § 405(g).
IT IS SO ORDERED.

August 23, 2013
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge 

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