Opinion
Case No. 00-4144-JAR
October 3, 2002
MEMORANDUM AND ORDER GRANTING MOTION TO REMAND
The issue in this case is whether Plaintiff is entitled to supplemental security income (SSI) benefits under Title XVI of the Social Security Act (Act). The matter is currently before the Court upon Defendant's Motion to Remand (Doc. 19).
Plaintiff filed an application for disability benefits under Title XVI on October 28, 1991, and was awarded benefits effective December 1991. As a result of a drug addiction and alcoholism redetermination made pursuant to the Contract with America Advancement Act of 1996, Plaintiff's benefits were found to have ceased effective January 1, 1997, in an administrative law judge's (ALJ) decision dated May 9, 1998. Plaintiff filed a request for review of the ALJ's decision with the Appeals Council.
Record at 317-21.
Pub.L. No. 104-121, 110 Stat. 847 (amending 42 U.S.C. § 423(d)(2)).
Record at 42.
Record at 37-8.
On June 29, 1998, while her request for review was pending before the Appeals Council, Plaintiff filed a new application for Title XVI benefits. This application was denied initially and on reconsideration, and by an ALJ on September 24, 1999. On June 30, 2000, the Appeals Council denied review of the ALJ's September 24, 1999 decision. Also on June 30, 2000, but by separate notice, the Appeals Council denied Plaintiff's request for review of the ALJ's May 9, 1998 decision.
Record at 699-711. Plaintiff also filed an application for Title II benefits on May 5, 1999, which was considered along with her June 29, 1998 application. Plaintiff has not argued for review of the denial of Title II benefits.
Record at 18, 669-74, 677-80.
Record at 18-27.
Record at 9.
See June 30, 2000 Action of Appeals Council on Request for Review, attached to Plaintiff's Complaint (Doc. 1).
Plaintiff Maella Holmes-Lee was born on May 24, 1954, completed school through the tenth grade and obtained a GED. She has no trade or vocational training, and has received general assistance and food stamps. She has a long history of depression. In 1972, at the age of 18 she was hospitalized in a dysphoric, depressed, agitated, hysterical state. She had become more depressed over the past several months, and her mother believed she had a second drug overdose, the first of which occurred two years earlier.
Record at 699.
Record at 1069.
Record at 775-77.
Id.
Since 1972 Plaintiff has had numerous hospitalizations for depression and suicidal ideation or suicide attempts, including multiple emergency room visits and admissions in 1994, when she was given GAFs ranging from 25 to 51. She was diagnosed in 1994 with a severe affect inhibition and cognitive depression consistent with a major depressive disorder, as well as alcohol and cocaine addiction. Plaintiff told Dr. Parks, one of her treating physicians, that she began using cocaine in her late adolescence, to medicate her depression. She relayed to Dr. Parks a history of periodic substance abuse aimed at relieving her depression; yet even when she was using drugs and alcohol, she continued to suffer from depression.
Record at 276-307, 390-92, 497-99, 508-22.
Record at 521-22.
Record at 514.
Id.
In 1996, Plaintiff was again hospitalized for suicidal ideation and depression; it was noted that while she responded to medication for depression, her depressive symptoms continued despite her being over the acute withdrawal from cocaine. She was discharged with a GAF of 40; a diagnosis of major depression, recurrent moderate; personality disorder NOS with dependent and passive aggressive features; cocaine and cannabis dependency and alcohol abuse. Plaintiff's discharge was followed by several attempts at rehabilitation, all of which resulted in relapse. In 1997, Plaintiff continued to have episodes of depression and suicidal ideation, and substance abuse. Dr. Parks, who treated her throughout 1997, diagnosed her as having a depressive disorder with psychosis, and noted that she showed very poor functioning.
Record at 390-91.
Record at 391.
Record at 489.
Dr. Parks, as well as other treating physicians, prescribed a number of medications for depression, which Plaintiff took with varying degrees of compliance. When Dr. Jones, a treating physician, saw her in October 1997, Plaintiff admitted that she had stopped taking her medications for three weeks because she felt overly sedated, and that she had two relapses between August and October, 1997. Dr. Jones prescribed another medication (which Plaintiff chose not to take after reading about the possible side effects), and noted that her alcohol abuse was in early partial remission.
Record at 473.
Id.
In the first half of 1998, although Plaintiff's case manager lost track of Plaintiff's whereabouts several times, Plaintiff always eventually called and resumed case management services and attended medical appointments on a reasonably consistent basis. Plaintiff continued to report that she was not using drugs. By June 1998, Plaintiff was not consistently keeping medical or case management appointments and was resistant to suggestions from the doctor or case manager. In July 1998, Plaintiff was admitted to the hospital suffering from depression, and having suicidal ideation. She admitted having used cocaine. She responded to medication during the hospital stay, and was released after nine days, with a diagnoses of major depression, recurrent; cocaine abuse and dependence; history of cannabis dependence; personality disorder NOS with dependent and passive aggressive features; anemia; a hiatal hernia; and a GAF of 50. She subsequently agreed to enter treatment for substance abuse.
Record at 462.
Id.
Record at 856.
Record at 813.
In December 1998, she reported to Dr. Okano, another treating physician, that she was depressed, that no medication helped her, and that she had not used any drugs for eight months. After a month, she returned to Dr. Okano, reporting that the Remeron he prescribed made her sleepy, but that her depression was not as bad as before. He told her to continue to take the Remeron.
Record at 932.
Id.
Id.
First ALJ Decision, May 9, 1998
The first ALJ concluded that:
1. Claimant was found to be disabled within the meaning of the Social Security Act beginning December 1991, and she has not engaged in substantial gainful activity since that date.
2. The medical evidence establishes that claimant has the following impairments: an affective disorder; gastritis with a history of a hiatal hernia and peptic ulcer; anemia; musculoskeletal complaints; a history of substance abuse; and complaints of headaches.
3. The medical evidence establishes that, for the period beginning August 1997, when claimant's substance addiction was in remission, claimant's affective disorder met the severity of criteria of Section 12.04 in the Listing of Impairments. . . . However, this impairment is expected to respond to treatment and thus, not expected to last for 12 continuous months pursuant to the regulations.
4. Claimant's testimony is found to be only partially credible for the reasons set forth in this decision.
5. Prior to August 1997, alcoholism and drug addiction are material and contributing factors to claimant's case.
6. Claimant is found to be "not disabled" within the meaning of the Social Security Act, as amended, and benefits were correctly ceased on January 1, 1997.
Record at 46-47.
Second ALJ decision, September 24, 1999
The second ALJ held a hearing, but there were no medical experts. Thus, the only medical expert testimony in the record is that of Dr. DeMarco. The second ALJ noted that the first ALJ had rendered a decision, and concluded ". . . under the doctrine of res judicata, the claimant's implied request for reopening of the prior hearing decision must be and is hereby dismissed with regard to the period on and before May 9, 1998, the date the last unfavorable hearing decision was issued. . . ." The second ALJ found that:. . .
4. The medical evidence establishes that as of May 10, 1998, the claimant has the severe impairments of polysubstance and alcohol addiction, as well as depression, anemia, fibromyalgia, gastritis and peptic ulcer disease.
5. The severity of the claimant's mental impairments meet the requirements of Section 12.09, Appendix 1, Subpart P, Regulations No. 4 ( 20 C.F.R. § 416.925).
6. The claimant's substance abuse is a contributing factor material to the determination of disability based on the claimant's mental impairments.
7. The claimant's statements concerning her physical and mental impairments and their impact on her ability to work absent the use of alcohol and illegal substances are credible only insofar as they preclude work activity exceeding the residual functional capacity set forth below.
8. The claimant retains the residual functional capacity to lift and carry up to 25 pounds occasionally and 10 pounds frequently, stand and/or work for 6 hours of an 8 hour workday, and sit for 6 hours of an 8 hour workday. She is moderately limited in her ability to understand, remember, and carry out detailed instructions and to maintain attention and concentration for extended periods.
. . .
11. The claimant has a high school equivalency diploma.
12. Based on an exertional capacity for medium work, and the claimant's age, educational background, and work experience, a framework application of Medical Vocational
Guideline (Grid Rule) 203.28, Table 3, Appendix 2, Subpart P, Regulations No. 4, directs a conclusion of "not disabled."
. . .
14. The claimant has not been under a disability at any time through the date of this decision.
15. The medical evidence establishes that the claimant would not be disabled if she stopped using alcohol. Therefore, in accordance with § 105 of Pub.L. 104-121, enacted on March 29, 1996, the claimant is ineligible for Supplemental Security Income payments under Title XVI of the Act.
Record at 26-27.
The Act provides that the final decisions of the Commissioner shall be subject to judicial review. The Court reviews the Commissioner's decision to determine only whether the decision is supported by substantial evidence and whether the Commissioner applied the correct legal standards. Substantial evidence is more than a scintilla, but less than a preponderance, and is satisfied by such evidence that a reasonable mind might accept to support the conclusion. The determination of whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion.
42 U.S.C. § 405(g), 1383(c)(3).
Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994).
Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
Id. at 804-05.
Although the Court is not to reweigh the evidence, the findings of the Commissioner will not be mechanically accepted. Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the Court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational. The Court examines the record as a whole, including whatever in the record fairly detracts from the weight of the Commissioner's decision and, on that basis, determines if the decision is supported by substantial evidence in the record.
Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D.Kan. 1992).
Glenn, 21 F.3d at 984.
The 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." Plaintiff's physical or mental impairment(s) must be of such severity that she is not only unable to perform her previous work, but cannot, considering her age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.
Id. at § 1382c(a)(3)(B).
The Commissioner has developed a five-step sequential evaluation process for determining disability. If at any step a determination can be made that a claimant is or is not disabled, evaluation under a subsequent step is unnecessary. In step one, the Commissioner determines whether the claimant is engaged in substantial gainful activity at the time of the determination. Step two considers whether the claimant has a medically severe impairment or combination of impairments which "significantly limits his ability to do basic work activities."
Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988).
Id.
Id. at 750-51.
In step three, the Commissioner "determines whether the impairment is equivalent to one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." If the claimant has a listed impairment or its equivalent, she is conclusively presumed to be disabled and is entitled to benefits. If not, the Commissioner must continue to the fourth step, which determines whether the claimant has shown that the impairment prevents her from performing work she has performed in the past. If the claimant is able to perform work she has performed in the past, she is not disabled. If not, the Commissioner must evaluate step five — whether the claimant has the residual functional capacity (RFC) in light of her age, education, and work experience, to perform other work in the national economy. The claimant has the burden of proof at steps one through four, but the burden shifts to the Commissioner at step five.
Id. at 751 (citation omitted).
Id.
Id.
Id.
Id.
In his September 24, 1999 decision, the ALJ applied the principle of res judicata and refused to reopen the prior May 9, 1998 decision. However, the Appeals Council did not deny review on the May 9, 1998 decision until June 30, 2000; therefore, the May 9, 1998 decision was not yet final and the ALJ should not have applied res judicata.
Record at 19.
Defendant's motion seeks remand for the following reasons: to vacate the decisions of the ALJ dated May 9, 1998 and September 24, 1999, and to correct the ALJ's improper application of the principle of res judicata; to obtain testimony from a medical expert concerning the severity of Plaintiff's impairments with focus on the longitudinal view of her mental impairments and the resulting limitations, absent the effects of Plaintiff's substance abuse; to further evaluate Plaintiff's subjective complaints pursuant to Luna v. Bowen, the SSA regulations at 20 C.F.R. § 416.929, and Social Security Ruling 96-7p; and to obtain testimony of a vocational expert as appropriate.
834 F.2d 161 (10th Cir. 1987).
Plaintiff objects to remand, arguing that the ALJ did not apply the proper standard in determining whether Plaintiff's abuse of alcohol and/or drugs was a contributing factor material to her disability. Plaintiff emphasizes the delays in this case and fears that upon remand the ALJ will again apply the wrong standard. However, this Court finds that remand is appropriate, and the Court will address the correct legal standard to ensure that it is invoked upon remand.
See Drapeau v. Massanari, 255 F.3d 1211, 1214-15 (10th Cir. 2001) (finding that where the ALJ's analysis of claimant's alcohol abuse was flawed in several respects, whether claimant is disabled and what role her alcoholism plays in any disability are questions the Commissioner must address on remand); Miller v. Bowen, 703 F. Supp. 885, 889-90 (D.Kan. 1988) (stating that "[s]ince the claimant still bears the burden of proof at this step . . . the appropriate relief is to remand to the [Commissioner] to resume consideration of the claim") (citations omitted); Benskin v. Bowen, 830 F.2d 878, 885 n. 2 (8th Cir. 1987) (finding that when the ALJ errs at a stage in the determination at which the burden is still on the claimant, the proper relief is to remand so the agency can resume consideration of the claim).
See Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988) (stating that upon remand "[o]ur decision . . . assures that the correct legal standards are invoked"); see also Johnson v. Bowen, 817 F.2d 983, 986 (2nd Cir. 1987) (holding that remand was necessary to ensure that correct legal principles were applied); Leidler v. Sullivan, 885 F.2d 291, 294 (5th Cir. 1989) (where ALJ relied on erroneous legal standards in assessing the evidence, he must reconsider that denial); Goatcher v. U.S. Dept. of Health Human Servs., 52 F.3d 288 (10th Cir. 1995) (remanding for evaluation of the evidence under the appropriate legal standards).
A critical issue in both decisions was whether Plaintiff is ineligible for benefits because her alcoholism and/or drug addiction is "a contributing factor material to the Commissioner's determination that the [Plaintiff] is disabled. Plaintiff admittedly has a long history of cocaine and alcohol addiction, in addition to her long history of depression and affective disorder. As the claimant, she has the initial burden of showing that her alcoholism or drug addiction is not material to the finding of disability.
See 42 U.S.C. § 1382c(a)(3)(J); see also 42 U.S.C. § 423(d)(2)(C).
See Pettit v. Apfel, 218 F.3d 901, 903 (8th Cir. 2000); Doughty v. Apfel, 245 F.3d 1274, 1280 (11th Cir. 2001).
The key factor in determining whether drug and alcohol dependency is a contributing factor material to a determination of disability is whether the claimant would be found disabled if he or she stopped using drugs and/or alcohol. The ALJ must determine which of claimant's limitations would remain if he or she stopped using alcohol/drugs and then determine whether any/all of the remaining limitations would be disabling. If the disability would remain, the ALJ must find the claimant disabled independent of addictions to drugs and/or alcohol.
20 C.F.R. § 416.935(b)(2)(ii); see Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001) (explaining the correct application of 42 U.S.C. § 423(d)(2)(C) and 20 C.F.R. § 416.935(a)).
Thus, the court focuses on whether claimant's limitations would rise to the level of disability absent the effects of drugs and alcohol. An independent review of the record reveals that the ALJ did not apply the proper legal standard when making this determination.
Additionally, there is not substantial evidence to support the ALJ's conclusion on this matter. The ALJ must go beyond simply finding that the Plaintiff's substance abuse contributed to her disability and find that it was a contributing factor material to a finding that her impairments constitute disabilities.
See Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001).
The ALJ never addressed the question of whether Plaintiff would still be disabled if she had not been using drugs and alcohol prior to August 1997. Instead, as Plaintiff points out, the ALJ relied upon the testimony of Dr. DeMarco to support his conclusion. However, Dr. DeMarco never testified that Plaintiff would not be disabled absent her dependence on drugs and alcohol.
Dr. DeMarco did testify that the Plaintiff's drug use had a significant impact on her functions up to August 1997 when her major problem became depression. Prior to August 1997, Dr. DeMarco stated that the depression was "significantly aggravated by alcohol and cocaine use." Dr. DeMarco did state, in response to direct questions from the ALJ, that in his opinion, the Plaintiff's substance abuse was a "material and contributing factor to her overall medical condition." However, when the ALJ posed these questions to Dr. DeMarco, he failed to explain the legal significance of the answers. The closest questions to the proper inquiry posed by the ALJ was when he asked Dr. DeMarco how the substance abuse affected Plaintiff's depression by likening it to "kind of the old chicken and egg problem." He stated that before August 1997, Plaintiff suffered from depression significantly aggravated by alcohol and cocaine use. There is no evidence in the record that Dr. DeMarco intended these answers to be interpreted as stating that the Plaintiff would not have been disabled during the relevant period if she had not been using drugs and alcohol at all.
Record at 1024.
Record at 1023-24.
Record at 1028.
Record at 1023.
The Plaintiff has also indicated that she has used drugs and alcohol in the past to self-medicate her symptoms of depression. Dr. DeMarco stated that this behavior is common for individuals who suffer from extreme depression. In addition, he acknowledged that the same elements were present prior to August 1997 as existed at the time of the hearing which led him to conclude that Plaintiff met the listing for affective disorders.
Record at 1032.
Plaintiff cites a bulletin from the Social Security Administration, Office of Disability which addresses the proper analysis for evidence of substance abuse in addition to other impairment(s). This bulletin instructed that where the restrictions and limitations imposed by a substance abuse disorder cannot be disentangled from those imposed by another mental disorder, a finding of "not material" would be appropriate, stating:
Cox, Dale, Social Security Administration, Emergency Teletype, August 30, 1996 available at http://www.ssas.com/daa-qampla.htm.
29. Q. The most complicated and difficult determinations of materiality will involve individuals with documented substance use disorders and one of [sic] more 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 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 [drug and alcohol abuse] and the various other mental disorders shown by the evidence, a finding of "not material" would be appropriate.
Id.; see also McGoffin v. Barnhart, 288 F.3d 1248, 1253 (10th Cir. 2002) (citing the SSA's teletype).
The Commissioner's policy provides that the central question in making this determination is whether the evidence establishes that a claimant who is disabled would still be disabled if she were not abusing alcohol and/or drugs. If so, then alcohol and drug abuse is not a contributing factor material to her disability. If it is not possible from the evidence to separate the limitations caused by alcohol and/or drug abuse from the limitations caused by the claimant's other mental disorders, then a finding of "not material" should also be made. In neither case did the ALJ actually analyze the evidence to determine whether it was possible to separate the limitations caused by Plaintiff's problems with alcohol and drugs from those caused by her depression and PTSD. Rather, the ALJs presumed that significant use of alcohol and/or drugs will be a material contributing factor to disability based on mental impairments.
This Court concludes that 1) the ALJ improperly applied the doctrine of res judicata in the September 24, 1999 decision; 2) the ALJ did not properly apply the correct legal standard when it determined that Plaintiff's drug and alcohol abuse was a contributing factor material to a finding of disability, and 3) there is not substantial evidence to conclude that Plaintiff's limitations would not rise to the level of disability absent the effects of drugs and alcohol.
IT IS THEREFORE ORDERED that Defendant's Motion to Remand (Doc. 19) shall be GRANTED.
IT IS FURTHER ORDERED that this case be reversed and remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings in accordance with this Memorandum and Order Granting Motion to Remand.
IT IS SO ORDERED.