Paxson v. Berryhill

Filing 19

MEMORANDUM AND ORDER granting 10 Plaintiff's MOTION for Summary Judgment , denying 8 Defendant's Cross MOTION for Summary Judgment , and remands this case to the Commissioner. (Signed by Magistrate Judge Christina A Bryan) Parties notified.(cjan, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LINDA M. PAXSON, O/B/0 DANIEL
PAXSON, DECEASED,

Plaintiff,
v.
NANCY A. BERRYHILL,
COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,

Defendant.

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March 08, 2018
David J. Bradley, Clerk

CIVIL ACTION No.: 4:17-CV-0632

MEMORANDUM AND ORDER
Plaintiff Linda M. Paxson, on behalf of Daniel C. Paxson, deceased, filed this case under
the Social Security Act, 42 U.S.C. §§ 405(g) for review of the Commissioner's final decision
denying his request for social security disability insurance benefits. Linda Paxson and the
Commissioner filed cross-motions for summary judgment (Dkts. 8, 10). After considering the
pleadings, the record, and the applicable law, the court GRANTS Linda Paxson's motion,
DENIES the Commissioner's motion, and remands this case to the Commissioner. 1

I. Background
1. Factual and Administrative History
Daniel C. Paxson (Paxsoni filed a claim for social security disability insurance benefits
and supplemental security income benefits on July 28, 2012. He alleged the onset of disability as
of October 2, 2009 due to pancreatitis. Dkt. 4-8 at 12. His claim was denied on initial review and
1

The parties have consented to the jurisdiction of this magistrate judge for all purposes, including entry of final
judgment. Dkt. 12.
2
"Paxson" refers to Daniel. Where necessary, the court will refer specifically to Linda Paxson.

reconsideration. The administrative law judge (ALJ) held a hearing on September 24, 2013 at
which Paxson, Linda Paxson, and a vocational expert testified. The ALJ issued an unfavorable
decision on January 21,2014. 3
Paxson requested review of the ALJ's unfavorable decision by the Appeals Council and
submitted "new and material evidence consisting of a psychological report from Jim Whitley
Ed.D., dated February 19, 2014." Dkt. 4-5 at 24. The Appeals Council determined "[t]he record
does not contain medical evidence dated later than June 26, 2013. Dr. Whitley's report suggests
severe deterioration after that date. Further evaluation of claimant's impairments is necessary."
!d. The Appeals Council directed the ALJ to consider the new evidence from Dr. Whitley,

"further develop the record to obtain additional evidence concerning the deterioration of the
claimant's condition with appropriate dates," and "if warranted by the expanded record, obtain
supplemental evidence from a vocational expert." Dkt. 4-5 at 25.
Paxson passed away on April 7, 2014. A second hearing before the ALJ, at which Linda
Paxson and a vocational expert testified, was held on January 15, 2015. The ALJ issued a second
unfavorable decision on May 19, 2015. 4 The Appeals Council denied review on December 29,
2016, and the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. §§
404. 984(b )(2) and 416.1484(b )(2).
2. Standard for District Court Review of the Commissioner's Decision

Section 405(g) of the Act governs the standard of review in social security disability
cases. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002). Federal court review of the

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Paxson raised the issue of memory loss before the September 24, 2013 hearing and requested neurophysical
testing. The ALJ denied the request based on his finding that "there is adequate evidence in the record to assess and
determine the claimant's neurological and psychiatric status." Dkt. 4-5 at 9.
4
The same ALJ, Judge Allen Erickson, presided over both hearings and issued both unfavorable decisions in this
case.
2

Commissioner's final decision to deny Social Security benefits is limited to two inquiries: (1)
whether the Commissioner applied the proper legal standard; and (2) whether the
Commissioner's decision is supported by substantial evidence. Copeland v. Colvin, 771 F.3d
920, 923 (5th Cir. 2014); Jones v. Apfel, 174 F.3d 692, 693 (5th Cir. 1999).
With respect to all decisions other than conclusions of law, 5 "[i]f the Commissioner's
findings are supported by substantial evidence, they are conclusive and must be affirmed." Perez
v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). "Substantial evidence is 'such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion."' Greenspan v. Shalala,
38 F.3d 232, 236 (5th Cir. 1994) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Substantial evidence has also been defined as "more than a mere scintilla and less than a
preponderance." Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002) (quoting Newton v.
Apfel, 209 F.3d 448, 452 (5th Cir. 2000)). When reviewing the Commissioner's decision, the
court does not reweigh the evidence, try the questions de novo, or substitute its own judgment for
that of the Commissioner. Masterson, 309 F.3d at 272. Conflicts in the evidence are for the
Commissioner to resolve, not the courts. !d. The courts strive for judicial review that is
"deferential without being so obsequious as to be meaningless." Brown v. Apfel, 192 F.3d 492,
496 (5th Cir. 1999).
The court weighs four types of evidence in the record when determining whether there is
substantial evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of
treating and examining physicians; (3) the claimant's subjective evidence of pain and disability;
and (4) the claimant's age, education, and work history. Wren v. Sullivan, 925 F.2d 123, 126 (5th
Cir.1991); Hamilton-Provost v. Colvin, 605 Fed. App'x 233,236 (5th Cir. 2015).

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Conclusions of1aw are reviewed de novo. Western v. Harris, 633 F.2d 1204, 1206 (5th Cir. 1981).

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3. Disability Determination Standards
The ALJ must follow a five-step sequential analysis to determine whether a claimant is
disabled. 20 C.F.R. §§ 404.1520, 416.920; Waters, 276 F.3d at 718. The Social Security Act
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 a continuous period of not less than twelve
months." Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990) (citing 42 U.S.C. § 423(d)(l)(A)).
A finding at any point in the five-step sequence that the claimant is disabled, or is not disabled,
ends the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).
In the first step, the ALJ decides whether the claimant is currently working or "engaged
in substantial gainful activity." Work is "substantial" if it involves doing significant physical or
mental activities, and "gainful" if it is the kind of work usually done for pay or profit. 20 C.F.R.
§§ 404.1572, 416.972; Copelandv. Colvin, 771 F.3d 920,924 (5th Cir. 2014).
In the second step, the ALJ must determine whether the claimant has a severe
impairment. Under applicable regulations, an impairment is severe if it "significantly limits your
physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1520(c), 416.20(c).
The Fifth Circuit construes these regulations as setting forth the following standard: "an
impairment can be considered as not severe only if it is a slight abnormality having such minimal
effect on the individual that it would not be expected to interfere with the individual's ability to
work, irrespective of age, education or work experience." Stone v. Heckler, 752 F.2d 1099, 1101
(5th Cir. 1985).
If the claimant is found to have a severe impairment, the ALJ proceeds to the third step of
the sequential analysis: whether the severe impairment meets or medically equals one of the

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listings in the regulation known as Appendix 1. 20 C.P.R. Part 404, Subpart P, Appendix 1. If
the impairment meets one of the listings in Appendix 1, the claimant is disabled. If the ALJ
finds that the claimant's symptoms do not meet any listed impairment, the sequential analysis
continues to the fourth step.
In step four, the ALJ must decide whether the claimant can still perform his past relevant
work by determining the claimant's "residual functional capacity" (RFC). "The RFC is the
individual's ability to do physical and mental tasks on a sustained basis despite limitations from
her impairments." Giles v. Astrue, 433 Fed. App'x 241, 245 (5th Cir. 2011) (citing 20 C.P.R.
404.1545). The ALJ must base the RFC determination on the record as a whole and must
consider all of a claimant's impairments, including those that are not severe. !d.; 20 C.P.R. §§
404.1520(e) and 404.1545; see also Villa v. Sullivan, 895 F.2d 1019, 1023-24 (5th Cir. 1990).
The claimant bears the burden to prove disability at steps one through four, meaning the
claimant must prove she is not currently working and is no longer capable of performing her past
relevant work. Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000). If the claimant meets her
burden, the burden shifts to the commissioner at step five to show that the "claimant is capable of
engaging in some type of alternative work that exists in the national economy." !d. Thus, in order
for the Commissioner to find in step five that the claimant is not disabled, the record must
contain evidence demonstrating that other work exists in significant numbers in the national
economy, and that the claimant can do that work given her RFC, age, education, and work
experience. Fraga v. Brown, 810 F.2d 1296, 1304 (5th Cir. 1998).
4. The ALJ's Decision
The ALJ performed the standard 5-step sequential analysis. The ALJ found that Paxson
met the insured status requirements of the Social Security Act through December 31, 2014, and
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did not engage in substantial gainful activity from October 2, 2009, his alleged onset date,
through the date of his death, April 7, 2014. The ALJ found that Paxson had the severe
impairments of alcohol abuse with alcoholic dementia and liver disease, as well as numerous
non-severe impairments. See Dkt. 4-3 at 20 (listing non-severe impairments). The ALJ analyzed
Paxson's severe impairment of alcohol abuse with alcoholic dementia under the "special
technique" for mental impairments, 20 C.F.R. 1520a(d)(2).
The ALJ made separate findings and conclusions with respect to the periods before and
after February 19, 2014. 6 The ALJ found that prior to February 19, 2014, Paxson's impairments
did not meet or equal the severity of a listed impairment in Appendix 1. Dkt. 4-3 at 22. Prior to
February 19, 2014, according to the ALJ's findings, Paxson had the residual functional capacity
"to perform a full range of work at all exertional levels but with the following non-exertional
limitations: he required a work environment with ready access to bathroom facilities, that was
not a fast-paced production-type environment, and where he was exposed to few work-place
changes. He could understand, remember, and carry out short, simple instructions, perform
routine tasks, and make simple decisions." Dkt. 4-3 at 23. Based on the testimony of a vocational
expert, the ALJ found that prior to February 19, 2014 Paxson could not perform his past relevant
work as a master electrician, but considering his age, education, work experience, and RFC,
there were jobs that existed in significant numbers in the national economy that claimant could
have performed and therefore he was not disabled prior to February 19,2014. Dkt. 4-3 at 26-27.
With respect to the period after February 19, 2014, the ALJ found that Paxson's
impairments met the requirements of listings 12.02 (Organic Mental Disorders) and 12.09
(Substance Addiction Disorders) and therefore he was disabled. Dkt. 4-3 at 27. However, the
ALJ found that if Paxson had stopped abusing alcohol after February 19, 2014, he would have
6

February 19, 2014 is the date the ALJ inferred as the onset of Paxson's alcoholic dementia.
6

continued to have severe impairments, but those impairments would not have met or equaled the
criteria of the listed impairments in 12.02 or 12.09. Dkt. 4-3 at 29. The ALJ also found that if
Paxson had stopped abusing alcohol after February 19, 2014, his RFC would have remained at
the pre-February 19, 2014 level. Dkt. 4-3 at 30. Thus, the ALJ concluded that after February 19,
2014, Paxson's substance abuse disorder was a "contributing factor material to the determination
of disability" and thus, Paxson was not disabled under the Act at any time from his alleged onset
date through the date of his death. Dkt. 4-3 at 29-32.
II. Analysis

Paxson argues that the ALJ committed reversible error in two ways: (1) he inferred the
onset date of Paxson's alcoholic dementia without the assistance of a medical advisor; and (2) he
failed to advise Paxson that he would bear the burden of proof to demonstrate that alcohol abuse
was not a contributing factor material to the determination of disability.
1. The need for a medical advisor.

Paxson contends the ALJ erred by inferring the onset date for his dementia as February
19, 2014 without consulting a medical advisor as required by SSR 83-20, 1983 WL 31249
(1983). "SSR 83-20 prescribes the policy and procedure by which the Secretary should
determine the onset date of a disability." Spellman v. Shalala, 1 F.3d 357, 361 (1993). Relevant
factors in the determination of disability onset are the claimant's allegation of onset, work
history, and the medical evidence; but the medical evidence is primary. Id. "SSR 83-20
recognizes that with slowly progressive impairments, including mental impairments, 'it is
sometimes impossible to obtain medical evidence establishing the precise date an impairment
became disabling."' !d. (quoting SSR 83-20). Thus, the Fifth Circuit held in Spellman that "in
cases involving slowly progressive impairments, when the medical evidence regarding the onset

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date of a disability is ambiguous and the Secretary must infer the onset date, SSR 83-20 requires
that that inference be based on an informed judgment. The Secretary cannot make such an
inference without the assistance of a medical advisor." !d. at 362.
Here, the ALJ's determination of February 19, 2014 as the date of onset clearly derives
from the date of Dr. Whitley's formal cognitive functioning assessment. The ALJ chose the
February 19, 2014 onset date precisely because "there simply is no confirmatory evidence of
such severe limitations prior to that time." !d. Prior to February 19, 2014, "no treating physician
[] expressed an opinion regarding the limitations imposed by the claimant's impairments on his
ability to perform work-related activities." Dkt. 4-3 at 25. 7
In this case, like Spellman, the ALJ inferred an onset date based on the date of diagnosis
of the mental impairment and without consulting a medical advisor. Inferring an onset date based
on the date of first diagnosis and without consulting a medical advisor fails to comply with the
requirements of SSR 83-20. See Swanson v. Secretary of Health & Human Services, 763 F.2d
1061,1065 (9th Cir. 1985) ("The critical date is the date of onset of disability, not the date of
diagnosis." (emphasis in original)); see also Lichter v. Bowen, 814 F .2d 430, 43 5 (ih Cir. 1987)
(SSR 83-20 does not permit an ALJ to rely on the date of first diagnosis solely because no earlier
diagnosis date was available). In Spellman, the Appeals Council did not consult a medical
advisor before inferring a disability onset date of approximately six months prior to the first
mental examination that diagnosed a severe mental impairment. None of Spellman's medical
evidence demonstrated a severe mental impairment prior to the date of her first mental status
evaluation, see 1 F.3d at 361, just as Paxson's medical evidence does not demonstrate disabling
alcoholic dementia prior to February 19, 2014. However, Spellman's mental impairment, like

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To be clear, there are no medical records, much less records indicating when Paxson's dementia became
disabling, for the period between June 2013 and February 19,2014.
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Paxson's alcoholic dementia, was a slowly progressive impairment. 8 In Spellman, the Fifth
Circuit reversed and remanded the case, concluding that "because Spellman's mental impairment
was of a slowly progressive nature, and the medical evidence was ambiguous with regard to the
disability onset date, the Appeals Council could not have inferred an onset date based on an
informed judgment ofthe facts without consulting a medical advisor." !d. at 363.
The Commissioner cites Aguilar v. Astrue as factually analogous to this case, but in
Aguilar, the "Plaintiffs testimony, his medical records, the opinions of consultative doctors and
aVE," established the onset date of his slowly progressive impairment and the ALJ relied on that
information in determining the plaintiff was not disabled. See Aguilar v. Astrue, Civil Action No.
2:13-cv-00017, 2014 WL 5500689 *9 (S.D. Tex. Oct. 29, 2014). Unlike Aguilar, the record here
is ambiguous as to exact date on which Paxson's limitations from alcoholic dementia first
became disabling. As the Appeals Council stated in the remand order: "Dr. Whitley's report
suggests severe deterioration" after June 26, 2013. Dkt. 4-5 at 24. It is true that Paxson did not
seek treatment for cognitive or mental health issues until February 21,2014, 9 and he continued to
drive on occasion, but there is not enough evidence in the record for the ALJ to make an
informed judgment as to the precise onset date of Paxson's disability without the assistance of a
medical advisor. Thus, ALJ erred by not consulting a medical advisor as required by SSR 83-20.
The Commissioner contends that any error in this regard is harmless, yet the Social
Security Administration recognizes that determination of onset date is crucial and when
ambiguous, a medical advisor must be consulted. See SSR 83-20, 1983 WL 31249 at *1, 3. This
8

The Commissioner does not dispute that Paxson's dementia was a slowly progressive impairment. The
Commissioner implicitly acknowledges the slowly progressive nature of Paxson's impairment in arguing that the
ALJ followed SSR 83-20's directives for cases involving such disabilities, and in arguing that the "medical evidence
... demonstrates when Claimant's condition had deteriorated to the point where he met a listed impairment." Dkt.
13 at 2, 4. See also Hadley v. Bowen, No. 88-C-5773, 1989 WL 18313 *2 (N.D. Ill. Feb. 27, 1989) (medical opinion
evidence showed that "mental deterioration from alcohol abuse is slow and cumulative").
9
The ALJ denied Paxson's request for neurological testing prior to the September 24, 2013 hearing. Dkt. 4-5 at 9.

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court cannot say the error was harmless because the ALJ's ultimate conclusion of no disability
involves or includes his finding that February 19, 2014 was the date of Paxon's onset of
disability. For example, the ALJ found that as of February 19, 2014 the severity of Paxson's
impairments of alcohol abuse and alcoholic dementia met the requirements oflistings 12.02 and
12.09, Dkt. 4-3 at 27, but at the same time, found that Paxson would not have had an impairment
that met or medically equaled met the listing criteria in 12.02 or 12.09 if he had stopped abusing
alcohol after February 19, 2014. Dkt. 4-3 at 29 ("Ifthe claimant had stopped the substance abuse,
the severity of the remaining limitations would not have met or medically equaled the criteria of
listings 12.02 or 12.09 ... "). The ALJ's finding that Paxson would have had only "moderate
restrictions in activities of daily living, mild difficulties in social functioning, and moderate
difficulties with regard to concentration persistence and pace," id., appear to be based at least in
part on the medical records from the January 2013 visit with Dr. Fee at which Paxson displayed
only some memory limitations. See Dkt. 4-14 at 112-17. Yet, if a medical advisor were to
suggest or determine that Paxson's onset of disability was not February 19, 2014, but was some
earlier date, that determination might affect the ALJ's evaluation of the extent to which Paxson's
"mental and physical limitations would remain ifthe claimant stopped the substance use," which
in tum might impact the finding of no disability. In other words, the ALJ's determination that
alcoholism is a contributing factor material to the determination of Paxson's disability could be
affected by the date of onset and information from the medical advisor regarding the progressive
nature of alcoholic dementia. Thus, the court is not persuaded that Paxson was not prejudiced by
.
the error, 10 and remand. appropnate.
1s

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See Jones v. Astrue, 691 F.3d 730, 734-35 (the party seeking remand must show that prejudice resulted from an
error).

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2. Plaintiff's burden re: substance abuse disorder
Because the court is remanding this case for reconsideration of the onset date of Paxson's
disability, and thus necessarily for reconsideration of whether alcoholism was a contributing
factor material to the determination of disability, it is not necessary for the court to decide
whether the ALJ erred in failing to give Paxson notice of his burden of proof. See Coyle v.
Colvin, Civil Action No. 4:13-CV-00621, 2014 WL 12531206 *15 (S.D. Tex. 2014) ("since
remand is required on this issue, the court does not consider Plaintiffs other issues for review").
The court notes however that it is well established at this point, almost 20 years after Brown v.
Apfel, 192 F.3d 492, 498 (5 1h Cir. 1999), that a claimant bears the burden of proving that alcohol

or drug addiction is not a contributing factor material to his disability. Paxson will bear that
burden on remand. 11
III. Conclusion
The court concludes that the ALJ erred as a matter of law by not consulting a medical
advisor when determining the onset date of Paxson's disability. Therefore, Paxson's motion is
granted, and the Commissioner's motion is denied. The Commissioner's decision denying
benefits is reversed, and this case is remanded for further consideration pursuant to sentence four
of 42 U.S.C. § 405(g).
11

Under regulations implementing § 132c(a)(3)(J), if an ALJ finds the claimant disabled, and there is medical
evidence of alcoholism, then the ALJ must determine whether the alcoholism is a contributing factor material to the
determination of disability. Snodgrass v. Colvin, Civil Action No. 11-cv-0219, 2013 WL 4223640 * 2 (N.D. Tex.
Aug. 13, 2013) (citing 20 C.F.R. § 1535(a) and 20 C.F.R. § 935(a)). In doing so, the ALJ evaluates the limitations
on which he based the disability determination, decides whether any limitations would remain if the claimant
stopped using alcohol, and then decides if the remaining limitations would still be disabling. /d. (citing 20 C.F.R. §
1535(b) and 20 C.F.R. § 935(b)). "[C]laimants who are addicted to drugs or alcohol 'must introduce evidence that
supports a finding' that they would be disabled even upon stopping their drug and alcohol use. After the claimant
has introduced such evidence, the ALJ 'must identify at least some medical evidence supporting the conclusion that
[the] claimant no longer would be disabled if he or she stopped drinking or taking drugs." /d. at *2-3 (emphasis in
original, citations omitted). Here, Paxson has pointed to the report of Dr. Whitley and the DSM IV (Diagnostic
Statistical Manual for Mental Disorders) in arguing that Paxson's functional deficits were permanent. The ALJ gave
great weight to Dr. Whitley's findings as to Paxson's limitations, but apparently not as to his prognosis. The court
makes no ruling as to whether the ALJ's decision that alcohol was a contributing factor material to disability is
supported by substantial evidence.
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Signed at Houston, Texas, on March 8, 2018.

~
United States Magistrate Judge

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