CHARLES A. STAMPELOS, Magistrate Judge.
This is a Social Security case referred to the undersigned United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.2(D). It is now before the Court pursuant to 42 U.S.C. § 405(g) for review of the final determination of the Acting Commissioner (Commissioner) of the Social Security Administration denying Plaintiff's Title II application for period of disability and Disability Insurance Benefits (DIB) and Title XVI application for Supplemental Security Income (SSI). After careful consideration of the entire record, it is respectfully recommended that the decision of the Commissioner be affirmed.
On July 5, 2012, Plaintiff filed an application with the Social Security Administration for a period of disability and Disability Insurance Benefits (DIB) pursuant to Title II of the Social Security Act, and an application for Supplemental Security Income Benefits (SSI) pursuant to Title XVI of the Social Security Act. Tr. 18, 297, 300.
The ALJ issued a decision on July 23, 2015, finding Plaintiff is not disabled and denying benefits. Tr. 18-27. The Appeals Council denied review on January 13, 2017. Tr. 1-4. Thus, the decision of the ALJ became the final decision of the Commissioner and is ripe for review. Accordingly, Plaintiff, appearing by counsel, filed a Complaint for judicial review pursuant to 42 U.S.C. §§ 1381, et seq., and 42 U.S.C. § 405(g). See ECF No. 1.
At the hearing commenced on January 7, 2015, Plaintiff, appearing with counsel, testified that she is 37 years old and had some college education. Tr. 74-75. She was in the military for an unstated period of time and her last job was, to her best recollection, at Subway prior to June 2011. Tr. 75. She had previously worked as cashier at Long John Silver's restaurant, Wendy's, and Krispy Kreme. Tr. 75-76. She testified she was fired from her last job because she failed go to work due to depression. Tr. 77. She said she believed her depression resulted from having been molested as a teen, and that she did not like to be around people. Id.
Plaintiff testified she stopped drinking alcohol shortly before the hearing, although she had consumed alcohol since age 12. Tr. 77-78. When she was drinking, she would drink beer, liquor, and sometimes moonshine. She said she could drink a case of beer a day. Tr. 78. She testified she has smoked marijuana every day since she was age 17. Tr. 79. She said she continued to drink and to smoke marijuana against advice of her doctors because she thought it "helps" her appetite and helps calm her. Tr. 79-80. She used cocaine from age 23, but quit about three years earlier. Tr. 81. Plaintiff testified she is currently homeless and will "lay on her cart" most of the day. Tr. 80.
She said she was treated at Meridian Behavioral Health Care after she attempted suicide, which she attempted four times. Id. She also said she hears voices, sometimes every day, telling her to hurt herself. Tr. 80-81. She testified she cannot live with anyone because she cannot get along with people. She has been told by people they cannot deal with her attitude or the way she talks to them. Tr. 81-82.
Counsel presented a legal argument to the ALJ that even without the alcohol and substance use, Plaintiff still has schizoaffective disorder and bipolar disorder. Tr. 82-83. Based on an argument that the Meridian records were not sufficient to show the affective disorder or bipolar disorder, counsel asked the ALJ to obtain more information from a consultative examiner, and the ALJ indicated he would make a decision as soon as possible. Tr. 83. An impartial vocational expert did not testify at the January 7, 2015, hearing.
The hearing was recommenced on April 17, 2015, at which psychiatrist John Schosheim, M.D., testified that Plaintiff has bipolar disorder, alcohol abuse, cannabis dependency, anxiety disorder, and post-traumatic stress disorder (PTSD). Tr. 35. He opined that Plaintiff's impairments meet Listings 12.04 for affective disorder, 12.06 for anxiety disorder, and 12.09 for polysubstance disorder. See 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 35-36. He testified that her alcohol and substance use were "material" to her problems, and if she stopped her alcohol and substance use, he was not sure if she would meet the Listings. Tr. 36-37. He said the alcohol and marijuana increase her anxiety and affective disorder because they are depressives. Tr. 36-37. He opined that, within a reasonable degree of medical certainty, if she stopped her heavy alcohol and substance use, she would have a significant improvement. Tr. 38
When asked by Plaintiff's counsel whether drinking alcohol would reduce Plaintiff's hallucinations and improve her schizoaffective diagnosis,
As for Plaintiff's anxiety disorder, Dr. Schosheim testified that symptoms can include palpitations, shortness of breath, hypervigilance, fear of doom, and temperature variations. Tr. 47. He said some people can perform in the workplace successfully with anxiety disorder, and that medication will sometimes calm them from a spell fairly quickly; or they may need to find a quiet place for a period of time. Tr. 48. If the person had no access to medication, he opined that a "significant" anxiety attack could take hours to resolve. Tr. 49-50. He agreed that people who do not drink alcohol or smoke marijuana can have bipolar disorder and anxiety disorder. Tr. 50.
Dr. Schosheim was asked what limitations Plaintiff would have in the workplace if she stopped alcohol and substance use. Tr. 53. He opined that her social limitations would be in the mild range. In terms of attention, persistence, and pace, her workplace limitations would be in the mild to none range. T. 53. He opined there would be no decompensation. Id. He testified, "I don't think there would be much affect (sic) to [this person's] life at all if they weren't drinking. No, I don't think so. Or without using pot. I mean I think the pot and the alcohol are significant triggers for the disease process we're talking about." Tr. 54. He also opined, "I'm not sure she would even need to have medical control if she wasn't using the alcohol and drugs. I don't know if she would have symptoms at all if she wasn't using the alcohol and drugs. So she would maybe not need any medications or she might need mild medication. . . ." Tr. 55. He testified that 90 to 100 percent of patients with bipolar or schizoaffective disorder need medication, but he cannot determine that the alcohol and drugs have not created the diagnosis of Plaintiff's conditions. Tr. 56.
Plaintiff appeared at this April hearing and testified that she was prescribed medication for her bipolar disorder, hallucinations, anxiety, and PTSD by a psychiatrist at Meridian Behavioral Healthcare, and was given samples to take. Tr. 57. She said when she took the sample medications, they sometimes helped her symptoms, although the medication made her feel kind of "zombified." Tr. 58, 63. Plaintiff testified that she did not continue with prescribed medications for the years 2011 to 2015, however, because she could not afford them. Tr. 58. Plaintiff denied that her symptoms were reduced during times that she had stopped drinking and stopped smoking marijuana, and that when she used those substances her symptoms were sometimes better. Tr. 58, 60-61. She testified that she is still using marijuana five days a week and still drinking about eight 24-ounce beers a day. Tr. 60.
Impartial vocational expert Ronald Spitznagel testified that Plaintiff's past work was as a fast food worker, described in the DOT code number 311.472-010, as light work, SVP 2. Tr. 63.
In the decision issued on July 23, 2015, the ALJ found that Plaintiff met the insured status requirements of Social Security through September 30, 2012. Tr. 20. Plaintiff has not engaged in substantial gainful activity since June 9, 2011, the alleged onset date. Tr. 21. The ALJ found that Plaintiff has severe impairments: bipolar disorder, post-traumatic stress disorder, and poly-substance use. Id.
Using the special technique for the analysis of mental disorders, the ALJ found that Plaintiff's impairments meet the requirements of Listings 12.04, 12.06, and 12.09 of 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. The ALJ explained that Plaintiff's mental disorders meet the criteria of "Paragraph A" because her symptoms include appetite disturbance, sleep disturbance, difficulty concentrating, hallucinations, thoughts of suicide, and recurrent intrusive recollections of traumatic experience. Id. The ALJ found that Plaintiff met the criteria of "Paragraph B" because she has at least two "marked" limitations or one marked limitation and "repeated" episodes of decompensation. Tr. 22. The ALJ explained that in activities of daily living, Plaintiff has moderate restriction—a November 2012 consultative psychological examination disclosed that she was homeless, showered at the homeless center, ate at charities, visited others downtown, played dominoes, went to the library when it rained, and stayed in her tent. Tr. 21 (citing records at Tr. 781-83). The ALJ found Plaintiff had marked difficulties in social functioning in that she had difficulty getting along with people, does not like being around people, and believed people were out to get her. Id. With regard to concentration, persistence, and pace, the ALJ found that Plaintiff has marked difficulties, in that her November 2012 psychological examination notes indicate she is frequently distracted and has difficulty finishing tasks. Id. In making these findings, the ALJ gave Dr. Schosheim's testimony great weight. Tr. 22.
The ALJ concluded that if Plaintiff stopped her substance use in 2011, she would continue to have a severe impairment or combination of impairments and her remaining limitations would cause more than a minimal impact on her ability to perform basic work activities. Id. The ALJ explained that, in determining the extent to which any mental limitations would remain if the substance use was stopped, he considered "Paragraph B"—the four broad functional areas set out in the disability regulations for evaluating mental disorders—and Listing 12.00C of the Listing of Impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. The ALJ relied on Dr. Schosheim's testimony in finding that Plaintiff stopped her substance use, she would have no more than mild limitation in the areas of daily living, social functioning, and maintenance of concentration, persistence, and pace. In the fourth area of decompensation, according to Dr. Schosheim, Plaintiff would have no episodes of decompensation if her substance use stopped. Id.
Also based on Dr. Schosheim's testimony, the ALJ found that because the remaining mental limitations would cause no more than mild limitation in any of the first three functional areas and no limitation in the fourth area, they would be non-severe if Plaintiff stopped her substance use. Tr. 22. Also based on Dr. Schosheim's testimony, the ALJ concluded that if Plaintiff had stopped the substance use in 2011, which date she alleged as the onset of her disability, she would not have an impairment or combination of impairments that meets or medically equals any of the Listings in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 23.
The ALJ determined that Plaintiff had the residual functional capacity to perform a full range of light work.
The RFC determination was also based on testimony of Dr. Schosheim, which the ALJ cited for the finding that if Plaintiff stopped all drug and alcohol abuse in 2011, she would not meet the Listings, and would likely have seen a real improvement in her mental condition. Tr. 24. The ALJ also cited Plaintiff's testimony that her prescribed medications were partially effective, and that records from Meridian Behavioral Healthcare showed Plaintiff's symptoms varied from moderate in 2011, to serious in 2012, to major in 2014, to mild in February 2015, when she was noted as being noncompliant with her medications. Tr. 24 (citing records at Tr. 492, 764, 785, 803, 821). A November 2012 consultative psychological examination by William Beaty, Ph.D., indicated the Plaintiff reported manic depression, bipolar disorder,
The ALJ noted that the record contains evidence of Plaintiff's non-compliance with prescribed medication and substance avoidance, which provides a basis to conclude a claimant is not disabled if no good reason for the non-compliance is shown. Tr. 25 (citing 20 C.F.R. 404.1530(b)). The ALJ found that Plaintiff's substance abuse is a contributing factor material to the determination of disability because she would not be disabled if she stopped substance use and because the substance use disorder is a contributing factor material to the determination. Tr. 26.
The ALJ concluded that there is no medical opinion of record that Plaintiff would be disabled or unable to perform work under the RFC found by the ALJ by virtue of her remaining impairments in the absence of substance use. Tr. 25. The ALJ gave significant weight to Dr. Schosheim's opinion that Plaintiff would have only mild limitations in the absence of substance use and the opinions of Drs. Chase and Grubbs that Plaintiff could perform simple and routine tasks. Id. Relying on the testimony of the vocational expert, the ALJ found that Plaintiff would be able to perform her past relevant work as waitress and fast food worker, which does not require performance of work-related activities precluded by the RFC Plaintiff would have if she stopped the substance use. Tr. 26.
In conclusion, the ALJ found that based on the application filed on July 5, 2012, Plaintiff is not disabled under sections 216(i) and 223(d) of the Social Security Act. Tr. 27. The ALJ also found that Plaintiff is not disabled under section 1614(a)(3)(A) of the Social Security Act, and is not entitled to Supplemental Security Income. Id.
This Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and premised upon correct legal principles. 42 U.S.C. § 405(g);
A disability is defined as a physical or mental impairment of such severity that the claimant is not only unable to do past relevant work, "but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). A disability is an "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 12 months." 42 U.S.C. § 423(d)(1)(A); see 20 C.F.R. § 404.1509 (duration requirement).
Pursuant to 20 C.F.R. § 404.1520(a)(4)(i)-(v), the Commissioner analyzes a claim in five steps. Under the first step, the claimant has the burden to show that she is not currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). At the second step, the claimant must show she has a severe impairment. 20 C.F.R. § 404.1520(a)(4)(ii). Step two is a threshold inquiry, and the ALJ does not go on to step three if the claimant fails to meet step two, but will find claimant is "not disabled."
Plaintiff bears the burden of proving that she is disabled and, consequently, is responsible for producing evidence in support of her claim. See 20 C.F.R. § 404.1512(a);
Opinions on issues such as whether the claimant is unable to work, the claimant's RFC, and the application of vocational factors, "are not medical opinions, . . . but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of the case; i.e., that would direct the determination or decision of disability." 20 C.F.R. § 404.1527(d); see
If the ALJ finds at step three that the claimant is disabled, and there is medical evidence of drug addiction or alcoholism, the ALJ must then determine whether the drug addiction or alcoholism was a material contributing factor to the disability determination. 20 C.F.R. § 404.1535(a); see also 42 U.S.C. § 423(d)(2)(C). The key factor in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether the claimant would still be found disabled, i.e., whether the current physical and mental limitations would remain if the claimant stopped using drugs or alcohol. § 404.1535(b)(1)-(2). If the Commissioner finds that the remaining limitations are disabling, she will find that the drug addiction or alcoholism is not a contributing factor and that the claimant is disabled. § 404.1535(b)(2)(ii). Plaintiff bears the burden of providing that her drug or alcohol addiction, if any, is not a contributing factor material to disability determination—that is, she would be disabled if she stopped using alcohol.
Plaintiff challenges the decision of the ALJ denying benefits, alleging that substantial evidence does not support the decision for several reasons: failure to properly evaluate the testimony of Dr. Schosheim, failure to properly question and to consider the evidence of the vocational expert, and error in assessing Plaintiff's RFC. ECF No. 22 at 18-22.
Plaintiff first contends that Dr. Schosheim testified that when a person is heavily using alcohol and is also depressed and anxious, it is not medically possible to separate out the signs and symptoms caused by their affective disorder, anxiety, and PTSD and those caused by the use of alcohol and marijuana. Plaintiff contends that in light of this testimony, the ALJ's finding, that but for her use of alcohol and drugs, Plaintiff would be capable of returning to her past work, is not supported by substantial evidence. ECF No. 22 at 19-20.
Defendant, however, correctly notes that Dr. Schosheim gave his opinion within a reasonable degree of medical certainty that Plaintiff would likely see improvement in her functioning if she was sober. Tr. 38. Dr. Schosheim testified that Plaintiff's alcohol and substance use were "material" to her problems, and if she stopped her alcohol and substance use, he was not sure she would meet the Listings. Tr. 36-37. He testified that the alcohol and marijuana increases her anxiety and affective disorder because they are depressives, and he opined within a reasonable degree of medical certainty that if she stopped her heavy alcohol and substance use, she would have a significant improvement. Tr. 36-38
Dr. Schosheim also testified that if Plaintiff were not using alcohol and marijuana, she would only have mild impairments in social functioning, no to mild impairments in concentration, persistence, and pace, and no episodes of decompensation. Tr. 53. He testified that drinking alcohol would not reduce Plaintiff's hallucinations and improve her schizoaffective diagnosis, and that "if you drink, you have more visual hallucinations" and more auditory hallucinations. Tr. 39. He testified, "I think the pot and the alcohol are significant triggers for the disease process we're talking about." Tr. 54.
The ALJ did not misconstrue or improperly evaluate Dr. Schosheim's testimony. His testimony, along with the other medical records cited by the ALJ, provided substantial evidence on which to conclude that if Plaintiff were not abusing alcohol and using marijuana, she could perform her past work and is not disabled. Based on the medical records and expert and other testimony, the ALJ found that Plaintiff's substance abuse disorder was material to the determination of disability and is a contributing factor material to the determination of disability. Tr. 26. Plaintiff has not carried her burden to show the substance abuse disorder was not material or contributing. See
Plaintiff also argues that the ALJ ignored the vocational expert's testimony that if a person misses more than one day of work a month, or were routinely tardy, they would not be able to maintain competitive employment. ECF No. 22 at 20. This testimony was elicited on cross-examination by Plaintiff's counsel. This argument presumes that the record establishes that Plaintiff's impairments, if she were not abusing alcohol and using marijuana, would cause her to be absent more than one day a month and routinely tardy. However, the hypothetical presented to the vocational expert by the ALJ did not contain any limitation stating the number of days that the Plaintiff would be absent or tardy due to her impairments. Plaintiff has not identified any objective medical or other evidence that demonstrates Plaintiff would routinely be absent or tardy due to her remaining impairments if she were not abusing alcohol and using marijuana. "In order for a vocational expert's testimony to constitute substantial evidence, the ALJ must pose a hypothetical question which comprises all of the claimant's impairments."
Finally, Plaintiff suggests that the ALJ erred in finding Plaintiff has the RFC to do past work and that the ALJ's finding was based only on "supposition and conjecture" and not on substantial evidence. ECF No. 21-22. To the contrary, the ALJ relied on the medical evidence in the record and the expert testimony at the hearing. The ALJ posed a hypothetical assuming a person with Plaintiff's age, education and experience who would be limited to light work. The vocational expert testified that such a person could perform the Plaintiff's past work as fast food worker and waitress. Tr. 63-64. Dr. Schosheim testified that but for the alcohol and marijuana use, Plaintiff had only mild or no limitations in functioning. The opinions of the State agency medical consultants opined Plaintiff could perform simple and routine tasks. Tr. 25 (citing records at Tr. 89-96, 126-30). The ALJ noted that the examination by Dr. Beaty did not suggest any disabling limitation, and there were no opinions that suggest she is disabled. Tr. 25 (citing Records at Tr. 781-83). Records from the Alachua County Jail concerning Plaintiff, cited by the ALJ, indicated Plaintiff was cleared for full work. Tr. 25 (citing records at Tr. 545).
The Commissioner has the responsibility of assessing the RFC, 20 C.F.R. § 404.1527(d), and the determination will be upheld if based on substantial evidence.
Considering the record as a whole, the findings of the ALJ are based upon substantial evidence in the record and the ALJ correctly followed the law. Accordingly, pursuant to 42 U.S.C § 405(g), it is respectfully recommended that the decision of the Commissioner to deny Plaintiff Williams' applications for Social Security benefits should be
