Williams, James v. Astrue, Michael

Filing 25

ORDER denying 16 Motion for Summary Judgment and affirming the decision of the commissioner. Signed by District Judge Barbara B. Crabb on 8/22/2013. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JAMES A. WILLIAMS,
OPINION AND ORDER
Plaintiff,
12-cv-802-bbc
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff James Williams is seeking review of a decision denying his claims for
disability benefits and supplemental security income under the Social Security Act. 42
U.S.C. § 405(g). The administrative law judge concluded that plaintiff’s substance abuse
was a contributing factor material to the disability determination and that if that factor were
absent, plaintiff could still perform limited, medium work at jobs that existed in significant
numbers in the national economy. Plaintiff says that the administrative law judge failed to
apply the correct legal standard or rely on a medical opinion in considering his substance
abuse; and did not give proper weight to the opinions of plaintiff’s treating physicians.
Because I find that the administrative law judge did give appropriate consideration to the
evidence of plaintiff’s substance abuse and had good reasons for rejecting the treating
physicians’ reports, I am affirming the decision.
The following facts are drawn from the administrative record (AR).

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RECORD FACTS
A. Background and Procedural History
Plaintiff James Williams has an eighth grade education and some work experience as
a janitor. AR 42-43. He lives with his girlfriend and their four-year-old child. AR 41.
Plaintiff filed applications for disability insurance benefits and supplemental security income
on May 6, 2010, contending that he had been disabled since September 1, 2009 because of
post traumatic stress disorder, anxiety, depression and alcoholism. AR 10, 127, 134, 149,
154. Plaintiff was born on October 18, 1982, making him 26 years old on his alleged
disability onset date. AR 24, 41.
On August 25, 2011, plaintiff appeared at a video hearing before Administrative Law
Judge Larry Meuwissen. He was represented by a lawyer, David Fitzpatrick. AR 10. The
administrative law judge heard testimony from plaintiff; plaintiff’s girlfriend, Kayla Newsom;
and a vocational expert, Mitchell Norman. AR 38.
The administrative law judge denied plaintiff’s claim on August 31, 2011. AR 26.
In his decision he found that plaintiff had severe impairments of mild degenerative changes
of the lumbar spine, anxiety and depression with anger outburst problems versus major
depression (single episode), post traumatic stress disorder, panic disorder not otherwise
specified, polysubstance dependence, possible attention deficit disorder and mild intellectual
disability. The administrative law judge found that when plaintiff was using alcohol and
marijuana, his mental impairments met those listed in sections 12.02, 12.06, 12.08 and
12.09 of 20 C.F.R. Part 404, Subpart P, Appendix 1; if, however, plaintiff stopped his

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substance use, none of his impairments would meet or medically equal a listed impairment
and he would have the residual functional capacity to perform medium work limited to
routine, repetitive, three and four step tasks; brief, superficial contact with coworkers and
the public; no sustained close contact with others; and no more than minimal stressors and
changes in a routine, repetitive work setting. The administrative law judge noted that the
non-exertional limitations accounted for plaintiff’s mental health symptoms, including the
moderate difficulties he had in maintaining social functioning and concentration, persistence
and pace when he was not using alcohol. AR 13-17, 19. Because the administrative law
judge found that substance abuse was a contributing factor material to the disability
determination, he denied plaintiff's application. AR 25.
The administrative law judge reviewed the medical records, the opinions of plaintiff’s
treating physicians (Dr. Downing, Dr. Bucknam and Dr. Porter), the opinions of two state
agency medical consultants (Dr. Angle and Dr. Alsdurf) and the hearing testimony. AR 1324. Although he gave significant weight to the opinion of the state agency psychologist, he
found that the check-off forms completed by the three treating physicians carried little
probative weight. AR 22-23. The administrative law judge also found plaintiff’s allegations
of disability not entirely credible for a variety of reasons. AR 20-22.
On September 12, 2012, the Appeals Council declined to review the case. AR 1.

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B. Medical Evidence
On September 17, 2009, plaintiff saw his treating physician, Dr. Ricky Waniger, for
depression and anger management. Plaintiff reported increased irritability, hypervigilance,
a lack of enjoyment in his regular activities low motivation, anxiety, sadness and crying
spells. He admitted using alcohol on occasion. Dr. Waniger prescribed Citalopram 20mg
and encouraged him to seek counseling. AR 239-40.
In September 2009, plaintiff saw Joseph Bodnar, a counselor, for an intake and one
followup session. On September 16, he told Bodnar that he was “going crazy” and having
a “nervous breakdown.” He also reported feeling too aggressive, easily angered, paranoid and
depressed. He said he had had a recent “run in” with the cops. AR 258. In his September
18 intake report, Bodnar reported that plaintiff was working part-time for a cleaning service
and playing football for a semi-pro team in the area. Plaintiff stated that he had a history
of explosive anger, that he had witnessed and experienced violent trauma as a child and that
he had increasing symptoms of anxiety and depression. He reported using alcohol in the
past but denied that it was a current problem. Bodnar noted that plaintiff was dressed
appropriately; his speech was goal directed and connected to his thinking; his insight and
judgment demonstrated understanding of his problems; he had a good attention span and
concentration; his use and fund of knowledge were adequate; and he was oriented to time,
place and person. He diagnosed major depression (single episode), post traumatic stress
disorder, panic disorder not otherwise specified and a Global Assessment of Functioning
score of 55. AR 255-57.

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At a followup appointment with Waniger on October 14, 2009, plaintiff reported
continuing problems with anxiety and an increase in his alcohol consumption. Waniger
changed plaintiff’s medication to Paroxetine and Clonazepam. AR 239.
On November 5, 2009, plaintiff began seeing a social worker, Robert Bablitch, for
psychotherapy. He reported an increase in his alcohol use. Bablitch noted that plaintiff had
a bright affect, fairly good judgment and insight. AR 253. On November 23, 2009, Bablitch
noted that plaintiff had experienced a very difficult week because he had lost a cousin to
cancer. He continued to experience anxiety, which occurred primarily when he was working
at Macy’s. Plaintiff also admitted to continued alcohol use of six to seven beers at a time.
AR 251. Bablitch reported that plaintiff’s affect was generally within normal limits and he
described plaintiff as oriented in three spheres with generally good grooming and no suicidal
thoughts. He noted that plaintiff had anxiety and paranoid thinking. AR 252.
On December 7, 2009, plaintiff reported to Waniger that he was continuing to have
problems with anxiety, crying spells and panic attacks. The symptoms had been made worse
by the recent death of his cousin. Plaintiff also stated that he was drinking six to seven beers
a day, four or five days a week. AR 237. On December 21, 2009, plaintiff saw Bablitch and
reported doing a good job abstaining from alcohol. Bablitch noted that plaintiff was taking
his prescribed medication and meeting his treatment goals of abstaining from alcohol and
reducing his anxiety and isolation. Bablitch reported that plaintiff had a bright affect, was
talkative and had fairly good insight and judgment. AR 250-51. On December 31, 2009,
plaintiff reported that although his depression and anxiety were improving with medication,

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he still had spells of rage. He also reported that he was drinking about two times a week.
AR 234. Waniger increased the dosage of plaintiff’s medication. AR 232.
In January 2010, plaintiff asked to see a psychiatrist so that he could apply for
disability benefits. On January 19, 2010, he saw Dr. Michelle Bauer, who noted that he
seemed pleasant, spoke fluently and coherently and had a euthymic (normal) mood.
Plaintiff estimated that he drank about 12 beers a day several times a week. Bauer diagnosed
alcohol abuse, symptoms of post traumatic stress disorder, learning disability and a Global
Assessment of Functioning score of 55. AR 249-50.
Together with his girlfriend, plaintiff saw Dr. Bauer again on January 28, 2010. He
and his girlfriend reported that plaintiff got angry all the time, was impatient and selfcentered and had problems sleeping. Bauer noted that plaintiff was quiet, cooperative and
relaxed but had limited insight and judgment. She recommended group therapy and started
plaintiff on Depakote for mood stabilization. AR 248. Plaintiff also saw Waniger on the
same day and reported that he was continuing to struggle with anger management. Waniger
switched him to Effexor XR. AR 232-33.
By February 2, 2010, plaintiff reported to Bablitch that he was less anxious, less
depressed and using less alcohol since he had started his new medication. Although he still
had some problems with anger, he was getting along well with his “partner” (presumably
Bablitch is referring to plaintiff’s girlfriend, Kayla Newsom) and continued to work six hours
a week as a cleaner at the mall. Bablitch noted that plaintiff’s affect was bright and that his
insight and judgment were fair. They discussed the dangers of alcohol use and the negative

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relationship of alcohol to anger. AR 247. However, on March 4, 2010, plaintiff’s partner
told Bablitch that plaintiff did not come home at night and continued to abuse alcohol. She
also reported that plaintiff did not take his medications as directed. Bablitch noted that
plaintiff’s affect was slightly flat at that visit. AR 246-47.
By May 6, 2010, plaintiff told Bablitch that he was doing much better and was less
anxious. He had stopped working at the mall, was no longer using alcohol and was getting
along better with his partner. Bablitch noted that his affect was brighter. They discussed
the importance of sobriety, as well as the negative relationship among depression, anxiety
and alcohol use. AR 246. Soon after this visit, plaintiff’s sobriety took another turn for the
worse:
•

On May 11, 2010, plaintiff reported to Dr. Bauer that he was doing
“okay” but had not been working for about three months and had
begun using marijuana. Bauer noted that plaintiff was “very pleasant
as usual,” quiet, cooperative and calm. She described his thought
processes as logical and rated his insight and judgment as fair. AR 295.

•

Plaintiff missed his May 19, 2010 appointment with Bablitch. AR
294. On June 17, 2010, he told Bablitch that he had become
intoxicated, blacked out and apparently gotten into a fight. After
noting that plaintiff was having trouble meeting treatment goals,
Bablitch commented that he would do much better if he did not use
any marijuana or alcohol. They spent most of the session talking about
the negative impact plaintiff’s alcohol use had on his depression, as well
as his anxiety. AR 293-94. Also on May 19, plaintiff requested a
transfer from the care of Dr. Bauer, explaining that he would prefer a
nurse practitioner with whom he could engage in more discussion. AR
293.

•

Plaintiff did not have further medical care until he met with Bablitch
on September 30, 2010 because he was incarcerated. AR 382, 398.
Plaintiff had gotten into an altercation with his girlfriend when he was
intoxicated and started pushing and shoving her. He had a hearing

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scheduled for October 4, 2010. Bablitch noted that plaintiff needed to
address his alcohol issues but had a poor recovery environment because
several of his friends drank. AR 382.
Plaintiff next saw Bablitch on November 4, 2010, after he had been released from jail.
Bablitch noted that plaintiff was doing much better and had abstained from alcohol for more
than a month. Plaintiff attributed most of his problems to alcohol. He was working on his
anxiety and social phobia issues by trying to get out of the house at least once a day. AR
383.
On December 9, 2010, plaintiff saw Dr. William Bucknam, who noted that plaintiff
was having anger management issues and a labile (easily altered) mood. Bucknam had tried
plaintiff on Venalfaxine but found that the dosage required to control his symptoms caused
him to gain weight, which in turn aggravated his back.

Although plaintiff reported

abstinence from alcohol, Bucknam expressed concern because he was not availing himself
of any support system. Plaintiff asked to get back on Paxil because it gave him some control
over his moods. Bucknam listed plaintiff’s diagnoses as post traumatic stress disorder,
bipolar affective disorder and alcohol dependence. AR 384. On the same day, Bablitch
noted that plaintiff was feeling a lot better, had abstained from alcohol since November and
was on a new mood stabilizer. AR 386.
On January 20, 2011, plaintiff told Bablitch that he had done a good job maintaining
sobriety. He felt good about his involvement in a local football league and reported that his
girlfriend (Newsom) had been very supportive of his sobriety. Bablitch commented that

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plaintiff had done quite well since their last visit and spoke to him again about the
importance of sobriety. AR 387.
Plaintiff saw Dr. Bucknam on February 15, 2011 and reported that the medications
were helping, he was less quick to temper and he felt less emotionally labile. However, he
reported feeling quite emotional the previous evening and frequently being unable to tolerate
his family members.

Bucknam noted that plaintiff’s affect was pleasant and that he

interacted well with his then three-year-old child. AR 388.
During his visits with Bablitch in February and March 2011, plaintiff reported that
he was doing quite well and abstaining totally from alcohol. AR 389-90. On March 28,
2011, Dr. Bucknam noted that plaintiff recognized that if he had been drinking, he likely
would have gotten into trouble. Bucknam also wrote that plaintiff was in “unstable early
remission” from alcohol dependence. AR 391.
On April 19, 2011, plaintiff saw Dr. Bucknam, who described plaintiff as an easily
frustrated person who avoided crowds and had been unable to work as a result of these
problems. Bucknam observed that plaintiff was talkative, adequately dressed and groomed
and friendly and cooperative with good eye contact. According to Bucknam, there was a
clear brightening of plaintiff’s affect as compared to a few months earlier. Plaintiff did report
that he “snapped” and lost his temper recently after his cousin’s boyfriend had became
violent toward other family members. Plaintiff beat up the man four different times before
others intervened. AR 394.

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On April 26, 2011, Bablitch described plaintiff’s affect as generally bright. Plaintiff
reported that he was maintaining sobriety with the medication prescribed by Dr. Bucknam,
getting along fairly well with his girlfriend and was enjoying playing on a local football team.
Bablitch noted that plaintiff was meeting all his treatment goals at that time. AR 395.
Suspecting that plaintiff suffered from attention deficit disorder, Bucknam referred
him for a cognitive functioning evaluation. Sarah Downing, Psy.D. met with plaintiff on
April 20, 2011 for a diagnostic interview. She observed that plaintiff described significant
cognitive and emotional symptoms that appeared to interfere with his daily functioning and
interpersonal relationships. Downing recommended a neuropsychological evaluation. AR
355-57. Stephen H. Porter, Ph.D., met with plaintiff on May 6, 2011 to gather background
information for the evaluation. AR 356. On May 10, 2011, Dr. Downing issued her report
on plaintiff’s neuropsychological assessment and noted that it demonstrated that he had
some intellectual and functional complications. Testing indicated that he had borderline to
mildly impaired intelligence with significant attentional deficits and high impulsivity and
that he was impaired on tasks involving complex or sustained attention. AR 357-59.
Downing strongly recommended gearing his treatment toward post traumatic stress disorder
“to assist him in engaging in life rather than becoming holed up in his residence.” AR 359.
She diagnosed post traumatic stress disorder, depression and mild intellectual disability,
adding that his mood fluctuations were not consistent with bipolar disorder and were more
related to his poor frustration tolerance, low intellectual functioning and limited ability to
cope. AR 359.

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On May 17, 2011, Dr. Bucknam reviewed Downing’s report and concluded that
plaintiff had a limited capacity to cope. He described plaintiff as pleasant and cooperative,
easily frustrated and overwhelmed and unable to sustain attention. Bucknam diagnosed
bipolar affective disorder type II, borderline low intelligence, prolonged post traumatic stress
disorder and alcohol dependence in stable early remission. AR 396.

C. State Agency Psychologists
On July 6, 2009, plaintiff saw Rebecca Angle, Ph.D. for a psychological evaluation on
a referral from the Social Security Disability Determination Bureau about a possible learning
disability and behavioral problems. Plaintiff reported having had problems for a long time
and frequently getting angry and easily frustrated. He described experiencing rages where
he wanted to destroy things and hurt people. Plaintiff reported drinking only two beers once
a month.

Angle diagnosed oppositional defiant disorder and borderline intellectual

functioning based on plaintiff’s self-reported problems getting along with others, a history
of physical altercations and symptoms of anger and irritability. She wrote that plaintiff had
a history of confrontations with supervisors and coworkers but was able to sustain his
attention and concentration and had the mental capacity to understand, remember and
follow simple instructions. AR 222-25.
On June 5, 2010, Dr. James F. Alsdurf, PhD., completed a Psychiatric Review
Technique form and Mental Residual Functional Capacity form, finding that plaintiff’s
mental impairments did not meet or equal the requirements of any listed impairment. With

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respect to the “B” criteria, Alsdurf found that plaintiff suffered mild limitations in activities
of daily living, moderate difficulties in social functioning and in maintaining concentration,
persistence, and pace and no episodes of decompensation. AR 272-284.
On the Mental Residual Functional Capacity form, Dr. Alsdurf found that plaintiff
was markedly limited in the ability to understand, remember and carry out detailed
instructions and moderately limited in his abilities to maintain attention and concentration
for extended periods, work in coordination with or proximity to others without being
distracted by them, complete work without interruptions from psychologically based
symptoms and perform at consistent pace without an unreasonable number and length of
rest periods, interact appropriately with the general public and accept instructions and
respond appropriately to criticism from supervisors. Despite finding these limitations, Dr.
Alsdurf was of the opinion that plaintiff retained the mental capacity to concentrate on,
understand, remember and carry out routine, repetitive instructions. He also found that
plaintiff’s ability to cope with co-workers and the general public would be reduced but
adequate for brief and superficial contact. Similarly, plaintiff’s ability to tolerate and
respond appropriately to supervision would be reduced but adequate to handle reasonably
non-authoritarian supervisory styles that could be expected to be found in many customary
work settings. AR 286-88.

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D. Treating Physicians’ Opinions
On June 22, 2011, plaintiff’s attorney sent Dr. Downing, Dr. Bucknam and Dr.
Porter a letter with five yes-or-no questions. In her June 30, 2011 response, Downing
checked yes to the questions asking whether plaintiff had marked limitations or was unable
to meet competitive standards in the following areas: understanding, remembering and
carrying out simple instructions (primarily if distractions were present); maintaining
attention for a minimum of two hours; getting along with coworkers, supervisors and the
general public and accepting criticism from supervisors; and dealing with normal work stress.
She did not answer the question about whether drug or alcohol abuse was a material factor.
Downing also wrote that “limitations related to low intellectual functioning are likely
permanent but mental health issues may be improved with ongoing treatment with therapy
and psychotropic medications.” AR 421-22.
In his July 8, 2011 response to the form, Dr. Buckman noted that plaintiff had
marked limitations or inability to meet competitive standards in understanding,
remembering and carrying out simple instructions; maintaining attention for a minimum of
two hours; maintaining regular attendance; completing a normal work day without
interruptions; getting along with others in the work place and accepting criticism from
supervisors; and dealing with normal work stress. He noted that plaintiff’s use of drugs and
alcohol was not a material factor. Dr. Buckman further reported that plaintiff would likely
be absent two days or more each month because of his condition and would have difficulty
sustaining regular employment on a full time basis. AR 427-428.

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Dr. Porter completed the form on July 12, 2011, noting that plaintiff had marked
limitations in maintaining regular attendance; completing a normal workday without
interruptions; getting along with coworkers, supervisors and the general public and accepting
criticism from supervisors; and dealing with normal work stress. He added that plaintiff’s
condition would be likely to cause him to be absent two days or more each month and he
would have difficulty sustaining regular employment on a full time basis. In response to the
question about drug and alcohol abuse being a material factor, Dr. Porter wrote: “not sure
was issue in past.” AR 424-25.

OPINION
A. Treating Physician Opinions
Plaintiff contends that the administrative law judge failed to provide good reasons for
rejecting the opinions of his treating physicians, Dr. Buckman, Dr. Downing and Dr. Porter,
whom he alleges all reported limitations that would preclude competative employment.
Although an administrative law judge must consider all medical opinions of record, he is not
bound by those opinions. Haynes v. Barnhart, 416 F.3d 621, 630 (7th Cir. 2005). “[T]he
weight properly to be given to testimony or other evidence of a treating physician depends
on circumstances.” Hofslien v. Barnhart, 439 F.3d 375, 377 (7th Cir. 2006). When a
treating physician's opinion is well supported and no evidence exists to contradict it, the
administrative law judge has no basis on which to refuse to accept the opinion. Id.; 20
C.F.R. § 404.1527(d)(2). When, however, the record contains well-supported contradictory

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evidence, the treating physician's opinion “is just one more piece of evidence for the
administrative law judge to weigh,” taking into consideration the various factors listed in the
regulation. Id. Among these factors are how often the treating physician has examined the
claimant, whether the physician is a specialist in the condition claimed to be disabling and
how consistent the physician's opinion is with the evidence as a whole, and other factors.
20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Moss v. Astrue, 555 F.3d 556, 561 (7th Cir.
2009). Although an administrative law judge must provide “good reasons” for the weight
he gives a treating source opinion, id., a minimal articulation of his reasoning is all that is
required, Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008)(describing standard as "very
deferential" and "lax").

1. Dr. Downing
The administrative law judge provided several reasons for giving Dr. Downing's
assessment little probative weight. First, he noted that she failed to answer the question
regarding whether drug or alcohol abuse was a material factor and did not mention the
plaintiff’s history of drug and alcohol abuse in her narrative assessment. Plaintiff takes issue
with these findings because “the ALJ decided that DAA was a material factor only by his
erroneously substituting his opinion for that of all of the medical experts.” Dkt. #17 at 40.
As discussed above, however, plaintiff has failed to show that the administrative law judge
made an improper finding regarding his substance abuse. Further, the administrative law
judge correctly noted that nothing in Downing’s conclusory opinion or limited treatment

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notes showed that she considered the effects of his substance abuse in completing the checkoff form.
Second, the administrative law judge noted that Downing saw plaintiff over a very
short period of time for only one or two sessions of neuropsychological testing and did not
say whether she had the opportunity to review plaintiff’s treatment records from other
providers. AR 22-23. Plaintiff points out that because Downing treated him at Gundersen
Lutheran, where he had received treatment for a number of years, she would have had access
to his entire record. This may be true, but Downing saw plaintiff only a few times to
perform testing and was not involved in his long-term care. The administrative law judge
was entitled to consider this factor in assessing the weight of her opinion.
Finally, the administrative law judge noted that there was no evidence that Downing
was familiar with the regulations and rules under which disability determinations were made
or the terms of art used in the lawyer’s questionnaire she was completing. Plaintiff argues
that the administrative law judge cites no rule or regulation requiring such a familiarity.
Although plaintiff is correct, the administrative law judge noted in his discussion of Dr.
Bucknam’s opinion that the form was conclusory and did not allow any of the physicians to
explain their findings or tie them to the objective medical evidence. Without a better record
from Downing, it is difficult to discern whether she understood the function-based questions
on the form, particularly the one asking whether substance abuse was a “material factor.”
Even if this was not the best reason the administrative law judge could give for discounting

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Downing’s opinion, it was only one of several reasons, most of which were sufficient to
justify his decision.

2. Dr. Bucknam
The administrative law judge noted that he did not give great weight to Dr.
Buckman's assessment because the form was prepared by plaintiff’s attorney and used
conclusory language that left little room for the physician to support his opinion with
objective medical findings. He determined that the bases of Bucknam’s opinions were not
clear from the form, particularly because Bucknam’s examinations of plaintiff’s mental status
had been generally unremarkable and did not support the severe symptoms that would
justify the conclusions he noted in the assessment. A review of the record cited by the
administrative law judge indicates that this is true. Although Bucknam noted some incidents
in which plaintiff exhibited anger and aggression and questions plaintiff’s ability to sustain
attention, he emphasized how plaintiff’s symptoms improved as he progressed with his
sobriety. Bucknam’s progress notes have no clear link to his opinion that plaintiff had
marked (versus moderate or mild) limitations in understanding, remembering and carrying
out simple instructions; maintaining attention for two hours; or maintaining regular
attendance. For example, in his last progress note, he summarized Downing’s test results
and noted that plaintiff was impaired with respect to tasks involving complex or sustained
attention. He did not mention inability to process simple instructions or accomplish simple
tasks; absenteeism; or missing appointments. The administrative law judge accounted for

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plaintiff’s limitations in these areas and his low intelligence in the residual functional
capacity assessment, which plaintiff has not challenged.
Finally, the administrative law judge reached the reasonable conclusion that Bucknam
appeared to rely quite heavily on plaintiff’s subjective reports, which he found not entirely
credible for a variety of reasons. AR 23. Plaintiff notes that this conclusion has merit but
generally contends that “the record is full of references to objective signs and symptoms.”
Dkt. #17 at 41. His argument misses the point. Regardless whether plaintiff is correct
about the record, he fails to challenge the administrative law judge’s conclusion that
Bucknam relied primarily on plaintiff’s self-reports. Because the administrative law judge
found plaintiff not entirely credible and plaintiff has not challenged the administrative law
judge’s credibility findings, plaintiff has not refuted the administrative law judge’s decision
to discount Bucknam’s opinion.

3. Dr. Porter
The administrative law judge found no evidence that Dr. Porter treated plaintiff
during the applicable time period. He pointed out that Dr. Porter did not seem to know
whether drugs and alcohol remained a factor for plaintiff. As a result, it was not clear on
what Dr. Porter based his conclusory assessment of plaintiff’s work-related limitations. As
an example, the administrative law judge pointed out that Porter did not explain why he
answered “yes” to the question about whether plaintiff likely would be absent from work two
or more days each month because of his condition. AR 23.

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Plaintiff raises only a cursory challenge to each of these findings. He contends that
they are erroneous without explaining why. He asserts that it is “mind boggling how the ALJ
could question the knowledge [of] Dr. Porter who serves as a vocational expert for Social
Security in numerous hearing[s]” and “headed the vocational rehabilitation department at
Gundersen Lutheran at the time of the report.” Plt.’s Br., dkt. #17 at 41. However, the
administrative law judge did not reject Port’s opinion because Porter did not have sufficient
expertise or because another physician had greater expertise.

Contrary to plaintiff’s

assertions, it is clear that Porter spent only a few sessions gathering information from
plaintiff in 2011 to facilitate neuropsychological testing. As a result, there seems to be little
basis for the opinions that Porter provided in response to the yes-or-no questions from
plaintiff’s attorney.
In sum, plaintiff has failed to show that the administrative law judge erred in weighing
the opinions of Downing, Bucknam and Porter. He gave sound reasons for discounting the
opinions and considered the relevant factors. He also factored into his residual functional
capacity assessment many of the limitations noted by the physicians

B. Substance Abuse
Plaintiff’s claim is complicated by his history of substance abuse. Under the Social
Security laws, a person is not eligible to receive benefits if substance abuse is a contributing
factor material to the determination of disability.

42 U.S.C. §§ 423(d)(2)(C),

1382c(a)(3)(J). The claimant bears the burden of proving that alcoholism or drug addiction

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is not a contributing factor. Kluesner v. Astrue, 607 F.3d 533, 537 (8th Cir. 2010); see also
Harlin v. Astrue, 424 Fed. Appx. 564, 567 (7th Cir. 2011). The applicable regulations state:
(a) General. If we find that you are disabled and have medical evidence of
your drug addiction or alcoholism, we must determine whether your drug
addiction or alcoholism is a contributing factor material to the determination
of disability, unless we find that you are eligible for benefits because of your
age or blindness.
(b) Process we will follow when we have medical evidence of your drug
addiction or alcoholism.
(1) The key factor we will examine in determining whether drug
addiction or alcoholism is a contributing factor material to the
determination of disability is whether we would still find you
disabled if you stopped using drugs or alcohol.
(2) In making this determination, we will evaluate which of
your current physical and mental limitations, upon which we
based our current disability determination, would remain if you
stopped using drugs or alcohol and then determine whether any
or all of your remaining limitations would be disabling.
(i) If we determine that your remaining limitations would not
be disabling, we will find that your drug addiction or alcoholism
is a contributing factor material to the determination of
disability.
(ii) If we determine that your remaining limitations are
disabling, you are disabled independent of your drug addiction
or alcoholism and we will find that your drug addiction or
alcoholism is not a contributing factor material to the
determination of disability.
20 C.F.R. §§ 404.1535, 416.935. Thus, “the issue for the administrative law judge is
whether, were the applicant not a substance abuser, [he] would still be disabled.” Kangail
v. Barnhart, 454 F.3d 627, 628–29 (7th Cir. 2006).

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Plaintiff makes a vague and convoluted argument about the administrative law judge’s
failure to apply the law correctly in social security cases addressing drug and alcohol abuse.
Dkt. #17 at 32-36. He does not challenge the administrative law judge’s findings with
respect to the listings, his residual functional capacity or even his credibility. Instead, he
contends in general terms that the administrative law judge failed to analyze his condition
in accordance with the regulations related to substance abuse and did not consider whether
his substance abuse was “separable from the underlying condition.” However, his primary
argument appears to be that the administrative law judge played doctor when he determined
that plaintiff's substance abuse was material to the finding of disability because there is no
medical opinion in the record supporting this finding.
It is unclear what plaintiff believes the administrative law judge ignored in applying
the regulations related to substance abuse.

In accordance with the regulations, the

administrative law judge began by making a disability determination irrespective of
plaintiff’s substance abuse and then considered what limitations would remain if plaintiff’s
drug and alcohol addiction were absent. He found that plaintiff's mental impairments,
including his substance abuse, met the criteria set forth in Listings 12.02 (organic mental
disorders), 12.08 (personality disorders) and 12.09 (substance addiction disorders). AR 13.
The administrative law judge then determined that, without the substance abuse, plaintiff's
anxiety, depression, anger outburst problems, post traumatic stress disorder and panic
disorder would not meet the listed impairments because there was no evidence that he
satisfied the “B” criteria of Listings 12.02, 12.06 (anxiety related disorders) or 12.08. AR

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15.

He also found that without the substance abuse, plaintiff’s physical and mental

impairments would restrict him to a limited range of medium work. AR 17-24.
Although I agree with plaintiff that no medical opinion in the record states specifically
that plaintiff's substance abuse was a factor material to his disability or that details the
specific effect that substance abuse has on plaintiff's mental impairments, the Social Security
regulations do not require such an opinion or explanation. (I note that Dr. Buckman
checked “yes” when asked on a simple form whether plaintiff’s drug abuse was not a material
factor in his underlying condition. AR 427-28. However, as discussed in the previous
section of this opinion, the administrative law judge provided sound reasons for rejecting
that opinion.)
In support of his argument, plaintiff cites an Emergency Teletype issued by the Social
Security Administration:
27. Q. Is it appropriate for an MC/PC [medical consultant/psychological
consultant] to conclude that he/she cannot project what limitations, if any,
would remain if drug/alcohol use stopped and let the DE [disability examiner]
make a determination that DAA is not material?
A. Yes. There will be cases in which the evidence demonstrates multiple
impairments, especially cases involving multiple mental impairments, where
the MC/PC cannot project what limitations would remain if the individual
stopped using drugs/alcohol. In such cases, the MC/PC should record his/her
finding to that effect. Since a finding that DAA is material will be made only
when the evidence establishes that the individual would not be disabled if
he/she stopped using drugs/alcohol, the DE will find that DAA is not a
contributing factor material to the determination of disability.
*

*

*

29. Q. The most complicated and difficult determinations of materiality will
involve individuals with documented substance use disorders and one or more

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other mental impairments. In many of these instances, it will be very difficult
to disentangle the restrictions and limitations imposed by the substance use
disorder from those resulting from the other mental impairment(s). Can any
examples be provided for how to handle the materiality determination in these
situations, or can any guidance be provided for the type of information that
should be used in trying to assess the impact of each impairment?
A. We know of no research data upon which to reliably predict the expected
improvement in a coexisting mental impairment(s) should drug/alcohol use
stop. The most useful evidence that might be obtained in such cases is that
relating to a period when the individual was not using drugs/alcohol. Of
course, when evaluating this type of evidence consideration must be given to
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. When
it is not possible to separate the mental restrictions and limitations imposed
by DAA and the various other mental disorders shown by the evidence, a
finding of "not material" would be appropriate.
Answers 27 and 29, Emergency Teletype No. EM-96200, Office of Disability, Social
Security Administration, “Questions and Answers Concerning DAA from the July 2, 1996
Teleconference-Medical Adjudicators-ACTION,” August 30, 1996. These excerpts indicate
only that, in the event it cannot be determined which of the claimant's limitations would
remain if the claimant abstained from alcohol, a decision should be made in favor of the
claimant.
Plaintiff implies that the administrative law judge should have called a medical or
psychological consultant or advisor to testify regarding the materiality issue. This court
rejected the same argument in Piotrowski v. Astrue, No. 07-cv-587-jcs, 2008 WL 4449977
(W.D. Wis. Apr. 21, 2008) (Crabb, J.) (finding that teletype does not impose requirement
to call consultant). Id. at *10. An administrative law judge must consult a medical expert
only if the evidence before him is not sufficient to make a determination. 20 C.F.R. §§

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404.1527(e)(2)(iii), 416.927(e)(2)(iii) (administrative law judge may ask for opinion from
medical expert on nature and severity of impairment and on whether impairment equals
listed impairment). Further, when a plaintiff is represented by counsel, the administrative
law judge is entitled to assume that counsel will make a request for a consulting expert if one
is necessary. Glenn v. Secretary of Health and Human Services, 814 F.2d 387, 391 (7th Cir.
1987) (administrative law judge can assume that applicant represented by counsel is “making
his strongest case for benefits”).
Plaintiff has not developed an argument that the evidence before the administrative
law judge was insufficient. Although he states generally that no medical evidence in the
record links “his mental limitations to his substance abuse,” he fails to discuss why he finds
the administrative law judge’s extensive analysis inadequate. He provides a bit more context
in his reply brief, but those arguments are waived because he failed to raise them in his
opening brief and provide the Commissioner an opportunity to respond. Broaddus v.
Shields, 665 F.3d 846, 854 (7th Cir. 2011) (“[A]rguments raised for the first time in a reply
brief are waived”).
Contrary to plaintiff’s assertions, the administrative law judge’s discussion of the
evidence that formed the basis of his opinion is thorough and persuasive. He compared
plaintiff's symptoms when he was sober to his symptoms when he was using alcohol and
marijuana. The administrative law judge identified plaintiff’s various periods of sobriety and
provided several examples of how “the record reflects [plaintiff’s] improved functioning and
presentations for examinations.” AR 20-21. He concluded that when plaintiff was sober,

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he had only mild restrictions in his daily activities, was able to take care of his personal needs
and did not have marked difficulties with social functioning or concentration, persistence
and pace. AR 15. In support, he pointed out that plaintiff was doing better, playing
football, getting along with his girlfriend and having brighter moods and more positive social
interactions during his periods of sobriety. AR 16, 20.
In contrast, the administrative law judge found that plaintiff's symptoms were quite
severe when he was not sober, as evidenced in part by the progress notes from Waniger,
Bablitch and Bauer between late 2009 and 2010 and plaintiff’s 2010 incarceration for
fighting when he was intoxicated. AR 14. This analysis was consistent with the regulations
and is supported by the record. Because the administrative law judge properly considered
whether plaintiff would still be disabled if he were not a substance abuser, remand is not
warranted. Kangail, 454 F.3d at 628.

ORDER
IT IS ORDERED that plaintiff James Williams’s motion for summary judgment is
DENIED and the decision of the commissioner is AFFIRMED. The clerk of court is directed
to enter judgment for defendant and close this case.
Entered this 22d day of August, 2013.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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