NANCY A. VECCHIARELLI, United States Magistrate Judge.
This case is before the magistrate judge by consent. Plaintiff, Walter Blaylock ("Blaylock"), challenges the final decision of the Commissioner of Social Security ("Commissioner") denying Blaylock's application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 423 and 1381(a). This court has jurisdiction pursuant to 42 U.S.C. § 405(g).
For the reasons set forth below, the court REVERSES the decision of the Commissioner remands the case for further action consistent with this opinion.
Blaylock applied for SSI on December 2, 2009 alleging disability as of March 23, 2006 due to bipolar disorder, epilepsy, diabetes, pancreatitis, and borderline glaucoma. The Commissioner denied Blaylock's application initially and upon reconsideration. Blaylock timely requested an administrative hearing.
Administrative Law Judge Kendra Kebler ("ALJ") held an administrative hearing on June 3, 2011. Blaylock was represented by counsel at the hearing. Hershel Goren testified as a medical expert ("ME"), and Mark Anderson testified as a vocational expert ("VE"). On June 21, 2011, the ALJ found that Blaylock was not disabled. Blaylock requested a review of the ALJ's decision by the Appeals Council. When the Appeals Council declined further review on August 30, 2012, the ALJ's decision became the final decision of the Commissioner.
Blaylock filed an appeal to this court on October 11, 2012. Blaylock alleges that the ALJ erred because she (1) failed to evaluate Blaylock's complaints of abdominal
Blaylock was born on November 30, 1964 and was 48 years old at the time of the ALJ's decision. He has a sixth grade education and no past relevant work.
Blaylock has a long history of chronic pancreatitis secondary to alcohol abuse. Between March 23, 2006, the alleged date of disability, and June 3, 2011, the date of Blaylock's hearing, Blaylock visited the emergency room and/or was admitted to the hospital for intoxication, symptoms of alcohol abuse, and/or abdominal or epigastric pain caused by pancreatitis secondary to alcoholism on the following dates: May 12, 2006 (Tr. at 2609-13); May 16, 2006 (Tr. at 2949-51); May 19, 2006 (Tr. at 2946-47); May 28, 2006 (Tr. at 2600-05); June 11, 2006 (Tr. at 2590-99); September 10, 2006 (Tr. at 2588-89); September 13, 2006 (Tr. at 2581-87); October 7, 2006 (Tr. at 2578-80); October 8, 2006 (Tr. at 2574-77); November 1, 2006 (Tr. at 2571-73); January 5, 2007 (Tr. at 2568-70); January 7-8, 2007 (Tr. at 1034-62, 2952-53); January 14, 2007 (Tr. at 2874-80); January 22, 2007 (Tr. at 1015-33); January 29, 2007 (Tr. at 1831-39); March 24, 2007 (Tr. at 997-1014, 2956-58); March 26, 2007 (Tr. at 2954-55); April 3, 2007 (Tr. at 984-96); April 10, 2007 (Tr. at 2565-67); April 11, 2007 (Tr. at 976-83); twice on April 14, 2007 (Tr. at 2560-61, 2562-64); April 15, 2007 (Tr. at 968-75, 2960-61); April 17, 2007 (Tr. at 964-69); April 22, 2007 (Tr. at 2556-59); April 23, 2007 (Tr. at 953-62, 2551-55); April 24, 2007 (Tr. at 2549-50); April 27, 2007 (Tr. at 941-52); May 1, 2007 (Tr. at 2547-48); May 2, 2007 (Tr. at 2542-46); May 4, 2007 (Tr. at 2539-41); May 8, 2007 (Tr. at 934-40); May 9, 2007 (Tr. at 919-33); May 10, 2007 (Tr. at 912-18, 2532-); May 15, 2007 (Tr. at 2529-31); May 16, 2007 (Tr. at 1821-28); May 18, 2007 (Tr. at 898-911); May 20, 2007 (Tr. at 877-97, 2962-64); May 24, 2007 (Tr. at 2523-28); May 29, 2007 (Tr. at 2515-22); twice on June 3, 2007 (Tr. at 2501-05, 2506-14); June 11, 2007 (Tr. at 1811-20); June 14, 2007 (Tr. at 2495-2500); July 1, 2007 (Tr. at 2491-94); July 19, 2007 (Tr. at 862-76, 2965-67); August 5, 2007 (Tr. at 852, 855-61); August 10, 2007 (Tr. at 832-47, 853-54, 2968-69); August 12, 2007 (Tr. at 820-31); August 13, 2007 (Tr. at 1802-10); August 21, 2007 (Tr. at 804-19); August 24, 2007 (Tr. at 793-803); September 26, 2007 (Tr. at 775-92); September 27, 2007 (Tr. at 2970-72); October 9, 2007 (Tr. at 766-74, 2973-74); October 29, 2007 (Tr. at 756-65); November 5, 2007 (Tr. at 1795-1801); November 25, 2007 (Tr. at 748-55); January 1, 2008 (Tr. at 738-46); January 16, 2008 (Tr. at 728-37); January 20, 2008 (Tr. at 710-27, 2975-78); January 28, 2008 (Tr. at 698-709); February 3, 2008 (Tr. at 691-97); February 7, 2008 (Tr. at 684-90); February 8, 2008 (Tr. at 673-82); March 21, 2008 (Tr. at 655-72); March 24, 2008 (Tr. at 1788-93); March 28, 2008 (Tr. at 1863-64); April 9, 2008 (Tr. at 635-54, 2979-82); May 9, 2008 (Tr. at 626-34); May 27, 2008 (Tr. at 617-25); May 30, 2008 (Tr. at 1779-87); June 24, 2008 (Tr. at 609-16); July 3, 2008 (Tr. at 2485-88); July 13, 2008 (Tr. at 599-608); July 30, 2008 (Tr. at 592-98); August 3,
The very great majority of Blaylock's hospital visits included vomiting, a smell of alcohol, toxicological detection of alcohol, intoxication, and/or self-reported recent alcohol use. During these visits, doctors repeatedly diagnosed Blaylock as suffering from alcohol abuse or alcohol intoxication. Tr. at 284, 288, 305, 315, 327-28, 329, 332, 334-35, 366, 384, 399, 417, 448, 484, 490, 506, 533, 537, 563, 577, 608, 666, 679, 690, 696, 704, 734, 763, 801, 826, 887, 915, 917, 928, 946, 958, 967, 990, 1019, 1761, 1773, 1789, 1828, 1832, 1862, 1864, 1867, 1880, 1980, 1994, 2007, 2041, 2064, 2082, 2085, 2091, 2113, 2124, 2140, 2152, 2166, 2178, 2200, 2257, 2309; 2345, 2351, 2389, 2396, 2409, 2416, 2433, 2450, 2481, 2502, 2507, 2530, 2545, 2548, 2550, 2557, 2569, 2577, 2589, 2592, 2613; 2685, 2692, 2738, 2751, 2811, 2826, 2842, 2858-59, 2868, 2876, 2951, 3015, 3023, 3029, 3038, 3042, 3521, 3546, 3634, 3660, 3710, 3737, 3764, 3771, 3794, 3798, 3948, 3992, 4016, 4035, 4045, 4316, 4337, 4370, 4393, 4410, 4419, 4502, 4515, 4528, 4589, 4721, 4780, and 4805. His alcohol use has caused mild peripheral alcoholic neuropathy. Tr. at 1892-93.
A number of objective tests confirm Blaylock's chronic pancreatitis. Abdominal x-rays on February 5, 2010, June 18, 2010, and March 3, 2011 showed findings consistent with chronic pancreatitis. Tr. at 2267, 3583, and 4367. CT scans on July 4, 2010 and December 17, 2010 also produced findings consistent with chronic pancreatitis. Tr. at 3684 and 4118. Hospital treatment for Blaylock's symptoms of pancreatitis have typically included the use of IV fluids and such pain relievers as Dilaudid and Percocet. See, e.g., Tr. at 2019, 3791-3792. Blaylock's reports of alcohol use in relation to his abdominal pain and the opinions of attending physicians link Blaylock's alcohol use to flare-ups of abdominal pain. See, e.g., Tr. at 3591.
Blaylock also suffers from back problems. On October 22, 2008, a CT scan
In approximately May 2009, Blaylock was diagnosed with type 2 diabetes. Tr. at 1892. Many of his later emergency room visits include hyperglycemia and/or the notation that his diabetes is uncontrolled. See, e.g., 4371, 4432, 4441, and 4454. Elevated glucose levels sometimes appear with high levels of alcohol. See, e.g., Tr. at 4386, 4393-94. On some occasions, high glucose levels are also accompanied by a failure to take prescribed insulin in addition to drinking alcohol. See, e.g., Tr. at 4395 and 4431.
Examining psychologists have also diagnosed Blaylock as suffering from cognitive and affective disorders. On September 9, 2010, psychologist Richard N. Davis interviewed Blaylock at the request of the Bureau of Disability Determination ("the Bureau"). Tr. at 3486-91. Blaylock said that he was in school only through sixth grade and that he received only failing grades. He told Davis that he had been employed no more than intermittently, had spent time in prison for burglary, and had been arrested 100 times or more, mostly for misdemeanor offenses against public order. Blaylock asserted that he had trouble following directions, getting along with people in authority, and getting along with fellow workers. According to Blaylock, any money he earns is used to buy alcohol. He stated that he suffered from diabetes, pancreatitis, and high blood pressure and listed his medications as insulin, Neurontin, a medication for high blood pressure that he could not name, and at least one other prescribed medication.
Davis found Blaylock to be generally coherent, with loose verbal structure and some circumstantial and tangential presentation and with some poverty of speech. He presented information slowly but was responsive to questions with no flight of ideas. Blaylock reported difficulty sleeping and occasional crying spells. He also suffered from some depression when he "thinks about having been molested by one of his mother's boyfriends." Tr. at 3488. Blaylock reported feeling worthless and hopeless. In-office tests revealed limitations in short-term memory and the ability to think logically. Moreover, according to Davis, Blaylock "possesses almost no ability whatsoever to think in the abstract." Tr. at 3488. He added that Blaylock "presents as being very limited intellectually. Rarely do I see a person who signs his name and misspells it." Tr. at 3489.
On a typical day, according to Blaylock, he will rise at 6:00 a.m., shave and dress, then shower and meditate. He watches television news and plays with the dog. He may go grocery shopping with the female friend with whom he lives. Blaylock and his friend are not in a sexual relationship. His friend is receiving disability benefits, and Blaylock gives her his food stamps. He does not date, go to classes, or look for work, nor does he visit family. He has no interests or hobbies. According to Davis, Blaylock is able to take care of his personal needs, and his appearance is satisfactory.
Davis diagnosed Blaylock's psychological difficulties as alcohol dependence, an adjustment disorder with mixed disturbance of emotions and conduct, and lower borderline intellectual function. He summarized Blaylock's work-related mental abilities as follows:
Tr. at 3489-90. Davis opined that Blaylock would not be capable of managing any benefits and assigned him a Global Assessment of Functioning ("GAF") of 55.
On April 4, 2010,
On September 21, 2010, Aracelis Rivera, Psy.D., completed a Mental Residual Functional Capacity Assessment and Psychiatric Review Technique assessing Blaylock's mental capabilities. Tr. at 3496-3513. Dr. Rivera found Blaylock to be suffering from organic mental disorders, an adjustment disorder with mixed disturbance of emotions and conduct, continuous alcohol dependence, and borderline intellectual functioning. She opined that Blaylock is moderately limited in the ability to understand and remember short and simple instructions; moderately limited in the ability to carry out very short and simple instructions; moderately limited in the ability to maintain attention and concentration for extended periods; moderately limited in the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; moderately limited in the ability to work in coordination of proximity with others without being distracted by them; moderately limited in the ability to make simple work-related decisions; moderately
Tr. at 3499 (abbreviations in the original).
A reviewing psychiatrist, Katherine Fernandez, Psy.D, affirmed Dr. Rivera's opinion on January 19, 2011. Tr. at 3839. In addition, Dr. Fernandez noted that in several respects Blaylock's behavior undercut the credibility of his complaints of pain and supported a belief that those complaints were merely attempts to receive pain medication.
At the hearing, Blaylock testified that he had been sober for almost two months. Tr. at 64, 71. He credited Ability for enabling him to forego alcohol, although Abilify did not lessen the depression which had been causing him to drink. Tr. at 64-65. Blaylock also testified that his depression also gives him "impulsive energy," and that he isolates himself to avoid directing that energy at others. Tr. at 65. He stated that although he watches television, he merely stares at it rather than paying attention. Tr. at 65. He is unable to concentrate on reading. Tr. at 65-66. According to Blaylock, he suffers from chronic and debilitating stomach pain that involves his pancreas, wraps around to his back, and creates nauseating pain in his groin. Tr. at 66-67. He added that this pain incapacitates him and frequently causes him to go to the hospital. Tr. at 67-68.
Blaylock stated that for the past six months he has had trouble with his left shoulder and left hand, which is his dominant hand. Blaylock testified that he was unable to pick up a cup of coffee, turn a door knob, or tie a shoe. Tr. at 68. He further testified that he was unable to work a 40-hour week, stand for more than 20 minutes, or sit for more than 20 minutes. Tr. at 68-69. He thought that he could not lift more than 15 pounds or that it was not safe for him to drive a car. Tr. at 70. Blaylock testified that he was currently taking Abilify, Lisinopril for high blood pressure, hydroxine for anxiety, and Tramadol and Percocet for pain. Tr. at 80-82.
Blaylock's attorney asked the VE if the hypothetical individual could perform the above-stated jobs if the individual were limited to the sedentary level of exertion, and the VE responded, "[T]hat's going to erode the base away." Tr. at 87. When asked if there would be work for the hypothetical individual if he would miss work for one day a week, the VE answered that there would not be.
The ME testified that Blaylock has not had seizures since 2009 and that he currently suffered from chronic pancreatitis, left radial neuropathy that Blaylock declined to treat, substance abuse, and an alcohol-induced mood disorder. Tr. at 90-92. He also noted that Blaylock suffered from diabetes but that it was not accompanied by sufficient complications to constitute a severe impairment. Tr. at 93. The ME also found that while a diagnosis of left radial neuropathy existed in the record, there was insufficient evidence to determine its extent or whether it persisted to the present. Tr. at 93-94. When the ALJ asked whether any of Blaylock's medically-determinable impairments meet a listed impairment at 20 CFR Ch. III, Part 404, Subpart P, Appendix 1 ("the listings"), he responded that Blaylock's alcohol-induced mood disorder would meet the listing for 12.04A1 in combination with 12.09. Tr. at 92.
A claimant is entitled to receive benefits under the Act when he establishes disability within the meaning of the Act. 20 C.F.R. § 416.905; Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered disabled when he cannot perform "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." 20 C.F.R. § 416.905(a). To receive SSI benefits, a recipient must also meet certain income and resource limitations. 20 C.F.R. §§ 416.1100 and 416.1201.
The Commissioner reaches a determination as to whether a claimant is disabled by way of a five-stage process. First, the claimant must demonstrate that he is not currently engaged in "substantial gainful activity" at the time he seeks disability benefits. Second, the claimant must show that he suffers from a "severe impairment" in order to warrant a finding of disability. A "severe impairment" is one which "significantly limits ... physical or mental ability to do basic work activities." Third,
In determining that Blaylock was not disabled, the ALJ made the following relevant findings:
Tr. at 36-56. The ALJ rejected the ME's opinion that Blaylock's alcohol-induced mood disorder would meet the listing for 12.04A1 in combination with 12.09. She also found Blaylock to be credible with respect to his limited abilities to concentrate and get along with others, but she found that his statements regarding the intensity, persistence, and limiting effects of his symptoms were not credible to the extent that they were inconsistent with the ALJ's residual functional capacity assessment.
This Court's review is limited to determining whether there is substantial evidence in the record to support the administrative law judge's findings of fact and
Blaylock argues that the ALJ erred because she (1) failed to evaluate Blaylock's complaints of abdominal pain resulting from his chronic pancreatitis and (2) improperly found that Blaylock's alcoholism was material to his disability. The Commissioner denies that the ALJ erred.
Blaylock contends that the ALJ failed properly to evaluate Blaylock's claims of abdominal pain due to chronic pancreatitis. The Commissioner rephrases this argument as an allegation that the ALJ failed to evaluate Blaylock's subjective complaints related to his physical impairments and denies that the ALJ so erred.
The Sixth Circuit in Felisky v. Bowen, 35 F.3d 1027 (6th Cir.1994), most clearly stated the test which courts must use in reviewing the Commissioner's determinations of the credibility of an applicant's statements about pain and disability. The court reviewed the pertinent regulations at 20 C.F.R. § 404.1529 and summarized the applicable test as follows:
Id. at 1038-39 (quoting Duncan v. Secretary of Health and Human Servs., 801 F.2d 847, 853 (6th Cir.1986)). The court specifically noted that the second part of this test is satisfied if the plaintiff satisfies either alternative after finding objective evidence of an underlying medical condition. Thus, the test "does not require ... `objective evidence of the pain itself.'" Felisky, 35 F.3d at 1039 (quoting Green v. Schweiker, 749 F.2d 1066, 1071 (3d Cir. 1984)) (footnote omitted). The court also summarized the factors that should be considered in determining whether the established medical condition can reasonably be expected to produced the alleged disabling pain:
In the present case, the ALJ properly described the two-stage test laid out in Felisky and Duncan. He then stated the following:
Tr. at 48. In three subsequent paragraphs, the ALJ discussed Blaylock's alleged inability to concentrate and his inability to be around others, concluding with "Mr. Blaylock's ability to concentrate and get along with others would improve if he stopped using alcohol, and that without alcohol ... he is capable of performing simple, routine repetitive tasks...." The ALJ's concluding paragraph of his analysis reads as follows:
Tr. at 49.
The ALJ does not recite Blaylock's allegations of pain; does not examine whether objective medical evidence in the record confirms the severity of the alleged pain arising from Blaylock's pancreatitis; does not examine whether Blaylock's pancreatitis is of such a severity that it can reasonably be expected to produce the alleged disabling pain; and does not use any of the factors suggested by Felisky to assess the credibility of Blaylock's allegations of pain. Indeed, the only discussion of Blaylock's pain appearing in the reports referenced by the ALJ appears in Dr. Caldwell's Physical Residual Functional Capacity Assessment and consists entirely of the following: "Assessment: Acute on abdominal pain," Tr. at 3473, and "[Blaylock] does complain of pain which is in excess of the objective findings and considerd [sic] partially credible," Tr. at 3476. As this assessment says nothing regarding the extent to which Blaylock's allegations regarding his admittedly acute abdominal pain are credible, and as Dr. Caldwell offers no basis for her opinion, this is far too slim a reed to support the ALJ's RFC assessment.
Given that Blaylock often described his pain to emergency room personnel as a 10 on a scale of 10 and given the strength of the pain medications with which he was treated, any assessment of Blaylock's RFC deserves an explicit and thorough examination of the credibility of his allegations of pain. The ALJ has not performed such an analysis. For this reason, the case must be remanded to the ALJ for a proper analysis of the credibility of Blaylock's allegations
Blaylock contends that the ALJ erred in finding that his alcoholism was material to his disability because, according to Blaylock, his condition would not improve if he were to stop drinking. The Commissioner denies this contention.
The Act prohibits an individual from receiving disability benefits if drug or alcohol abuse is a contributing factor material to the individual's disability. 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J). When the ALJ determines that an individual is disabled and the record demonstrates a history or drug or alcohol abuse, the ALJ must determine whether the individual's substance abuse is a contributing factor to the determination of disability and whether the individual would still be disabled if the substance abuse stopped. 20 C.F.R. §§ 404.1535(a), 416.935(a); see also SSR 13-2P, 2013 WL 621536; SSR 82-60. If the ALJ determines that a claimant would still be disabled if the substance abuse stopped, the ALJ must conclude that the substance abuse was not a contributing factor material to the determination of disability and should award benefits. 20 C.F.R. §§ 404.1535(b)(2)(ii), 416.935(b)(2)(ii). But if the ALJ determines that a claimant would not be disabled if the substance abuse stopped, the ALJ must conclude that the substance abuse was a contributing factor material to the determination of disability and should not award benefits. 20 C.F.R. §§ 404.1535(b)(2)(i), 416.935(b)(2)(i).
In determining whether a claimant would be disabled if the substance abuse stopped, the ALJ's method varies depending upon whether the claimed impairment is physical or mental. If a claimant has a physical impairment and the ALJ determines that the impairment is the sort that is likely to improve with abstinence, the ALJ may consider the medical opinions of treating or nontreating sources regarding the likely effects that abstinence would have on the impairment. SSR 13-213, 2013 WL 621536 at *7. The ALJ may not adopt a medical opinion about whether the impairment would improve unless that opinion is supported, although the opinion may legitimately be supported solely by the medical source's knowledge and expertise. The relevant social security ruling emphasizes that the burden is always on the plaintiff to prove disability, but the section of the ruling addressing the probable results of abstinence on physical impairments ends with the following paragraph: "We will find that DAA
If the claimant has a mental impairment, the method is somewhat different. The regulations hold that research data cannot be used to reliably predict whether any given claimant's disorder would improve if the claimant abstains from substance abuse. Thus, although the ALJ must determine whether the substance abuse is material to the claimant's disability, and ALJ may not rely "exclusively on medical
The ALJ must provide sufficient information so that a subsequent reviewer considering the evidence in the record can understand the reasons for the ALJ's determination regarding materiality and whether the claimant would be disabled if the claimant stopped the substance abuse. Id. Credibility determinations in cases involving substance abuse do not differ from credibility determinations in other cases. Id. (citing SSR 96-7p for guidance).
In the present case, although the ALJ found that Blaylock suffered from serious impairments other than his substance abuse and that those impairments would produce the symptoms Blaylock alleges, the ALJ also found that Blaylock's statements about the intensity, persistence, and limiting effects of his symptoms were not fully credible to the extent they were inconsistent with the ALJ's estimate of the severity of Blaylock's mental impairments in the absence of substance abuse. The ALJ determined that, in the absence of substance abuse, Blaylock's ability to relate to others would improve, although he would still have moderate difficulties in relating to others. The ALJ also determined that Blaylock's concentration, ability to persist, and pace of work would improve in the absence of substance abuse, although, again, he would still have difficulties in this area. In addition, the ALJ determined that without the substance abuse Blaylock would have no episodes of decompensation. The ALJ cited the reports of Davis and Dr. Rivera and the opinion of Dr. Fernandez in justifying his conclusions, all of which described the areas in which Blaylock's drinking aggravated his mental impairments. Tr. at 47, 48-49. From his findings regarding Blaylock's mental condition absent his substance abuse, the ALJ determined that the substance abuse was material to the disability determination, because in the absence of his substance abuse Blaylock would not be disabled.
Blaylock objects to the finding that his substance abuse is material to the disability determination for two reasons: (1) there are five occasions in the record during which Blaylock reported to the emergency room complaining of abdominal pain even though he had not been drinking and (2) when the evidence regarding a claimant's condition in the absence of substance abuse is uncertain, the presumption should favor the claimant. The Commissioner responds that the ALJ complied with controlling regulations and longstanding policy in determining that Blaylock's substance abuse was material to both his alleged physical and mental impairments.
Despite physicians' opinions in the record that Blaylock's alcohol abuse aggravated his pancreatitis, the ALJ did not assess whether Blaylock's pancreatitis is a physical
Because the ALJ failed to perform a proper assessment of whether Blaylock would be disabled if the substance abuse stopped, the issue of whether the presumption should favor the claimant when the evidence regarding a claimant's condition in the absence of substance abuse is uncertain is moot. The court need not, therefore, address that question.
For the reasons set forth above, the court REVERSES the opinion of the Commissioner and REMANDS the case for further proceedings consistent with this opinion.
