Opinion
Civil No. 3:00 CV 296-H
January 26, 2001
MEMORANDUM AND ORDER
THIS MATTER is before the Court on "Plaintiff's Motion for Summary Judgment" and "Plaintiff's Brief Supporting . . ." (both document #9) filed November 14, 2000, and Defendant's "Motion For Summary Judgment" (document #10) and "Memorandum in Support of the Commissioner's Decision" (document #11), both filed January 11, 2001.
The parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636 (c), and these motions are now ripe for disposition.
Having considered the written arguments, administrative record, and applicable authority, the undersigned finds that the Defendant's decision to deny Plaintiff Social Security disability benefits is supported by substantial evidence. Accordingly, the undersigned will deny Plaintiffs Motion for Summary Judgment; grant Defendant's Motion for Summary Judgment; and affirm the Commissioner's decision.
I. PROCEDURAL HISTORY
On April 22, 1993, the Plaintiff protectively applied for Supplemental Security Income ("SSI") alleging disability since December 5, 1990, due to a personality disorder related to drug and alcohol abuse. The Administration denied his claim initially and on reconsideration. Plaintiff requested a hearing, which was held on February 15, 1994. On April 29, 1994, the Administrative Law Judge (hereinafter "ALJ") issued a hearing decision awarding plaintiff Supplemental Security Income, with a disability onset date of April 22, 1993.
The transcript of the oral hearing held on February 15, 1994 was not included in this record (see Transcript page i).
The proper inquiry in an application for Supplemental Security Income benefits is whether plaintiff was disabled on or after his/her application date. 20 C.F.R. § 416.335. Accordingly, plaintiff could not receive Supplemental Security Income benefits for any month prior to the month in which he filed his application.
On March 29, 1996, Congress enacted Pub.L. No. 104-121, 110 Stat. 847 (1996) (hereinafter " Pub.L. No. 104-121") which bars a finding of disability if drug addiction or alcoholism is a contributing factor material to the determination of disability. Based on this change in the law, the Agency reviewed the Plaintiffs case under the redetermination provisions of the new statute. Subsequent to its initial and reconsideration redetermination reviews, the Agency advised Plaintiff that his benefits would end January 1, 1997, because his entitlement to benefits was based on drug or alcohol addiction.
42 USCA. § 423(d), which defines the term "disability" for purposes of DI benefits, provides in pertinent part that "[a]n individual shall not be considered to be disabled for purposes of this subchapter if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that the individual is disabled." 42 U.S.C.A. § 423(d)(2)(C). In nearly identical language, 42 U.SC.A. § 1382c(a)(3)(J) sets forth the same exclusion for 551. Implementing regulations specify that alcoholism or drug addiction is a contributing factor material to a disability determination if an individual would not be disabled if he stopped using alcohol or drugs. See 20 C.F.R. § 404.1535 (b), 416.935(b) (1998). The regulations further explain that a person who suffers from disabling impairments unrelated to alcoholism or drug addiction is not prevented from receiving benefits. See Id. §§ 404.1535(b). 416.935(b).
The specific notice of redetermination was not included in this Transcript.
Plaintiff requested a hearing which was held on June 4, 1997. On September 22, 1997, the ALJ issued a hearing decision affirming the Agency determination that alcoholism was a contributing factor material to the determination of the Plaintiffs disability and denying his claim. The Appeals Council denied Plaintiffs Request for Review, making the hearing decision the final decision of the Commissioner. 20 C.F.R. § 404.955, 404.981, 416.1455, 416.1481. The Plaintiff filed this action on June 20, 2000, and the parties' cross-motions for summary judgment are now ripe for the Court's consideration.
II. FACTUAL BACKGROUND
At the second hearing, the Plaintiff appearing pro Se, testified that he was born on May 29, 1960; that he lived in his grandmother's home with his girlfriend; that he had a 10th grade education and could read and write; that he had past relevant work as a maintenance worker and as a roofer, but had not worked since his alleged disability onset date; and that on days when he drank alcohol, he was disabled from working.
Regarding his medical and emotional condition, the Plaintiff testified that until entering a recovery program four months prior to the hearing he had been drinking alcohol "all day long"; that he was seeing a psychologist and psychiatrist; that he was attending Alcoholics Anonymous and group therapy but was still drinking; that he suffered alcohol withdrawal seizures and had broken his ankle during a seizure; that he suffered abdominal pain and liver problems; that he suffered black-outs; and that he took Tylenol for pain.
As to daily activities, the Plaintiff testified that he fished; that he played cards and checkers; that he took his girlfriend bowling; that he read the Koran five times a day for up to 30 minutes at a time; and that he heated food in a microwave oven.
The Plaintiffs grandmother, Annie Mae Sanders, testified that the Plaintiff lived in her home; that she thought he was "going crazy"; that she had seen the Plaintiff drink beer and wine, but had not seen him use illegal drugs; that the Plaintiff could do any household chores she requested and did not have any physical limitations on what he could do; and that the Plaintiff had liver problems.
Dr. Mitchell Coleman, an Agency medical expert, testified that the Plaintiff had elevated levels of enzymes in his liver which were "overwhelmingly likely due to his heavy drinking" (Tr. 366); that the "overwhelmingly likely explanation for virtually all of [the Plaintiffs] symptoms is drinking" (Tr. 367); that Plaintiff did not have any symptoms which could not be explained by his heavy drinking; that the Plaintiffs seizures were alcohol withdrawal seizures which subsided when he resumed drinking; that the record reflected that the Plaintiff was drinking every morning, an indication of a continuing drinking problem; and that, in order to get better, the Plaintiff needed to "stop drinking totally, forever." (Tr. 369.)
The record also contains a number of representations by Plaintiff as contained in his various applications in support of his claim. On a Disability Report dated December 16, 1996, the Plaintiff stated that his disabling condition was a "high blood pressure; hepatits [sic] seizures; sorosis [sic] of the liver"; that he took out the trash and cleaned his bedroom; that he did not have a driver's license, but road the bus and walked; that he fished and played cards; that he visited with friends and family; and that he was not on any medication. The Agency interviewer noted that the Plaintiff appeared "normal except for the strong odor of alcohol across the desk."
On an undated Claimant's Statement When Request For Hearing is Filed, the Plaintiff stated only "I'm dizzy and cannot w [sic]."
On February 11, 1997, John K. Waruken, M.S., performing a consultative psychological evaluation for North Carolina Disability Determination Services ("NCDDS"), noted that although the Plaintiff claimed he had high blood pressure, seizure disorder, and a "bad" liver, he also stated he was not taking any medication and did not regularly see any physician; that his daily activities included numerous household chores, such as taking the trash out, going to the store, microwaving food, and doing whatever else he was asked to do; that during most of the day, he was out of the house and "on the street, " usually drinking or using drugs; that the Plaintiff showed no posture, motor activity, or gait abnormality, and was able to follow simple directions; that his speech was relevant, and his affect was generally appropriate; that Plaintiff reported experiencing both auditory and visual hallucinations, and complained of depression, but reported taking no medication; and that on the day and night preceding the consultative examination, the Plaintiff smoked crack cocaine and drank about half of a bottle of wine.
Mr. Warnken further noted that the Plaintiff was oriented as to time, person, and place, and was well informed on current events; that intelligence testing (WAIS-R) indicated a verbal IQ of 80, a performance IQ of 68, and a full scale IQ of 74; that the Plaintiff was functioning at the borderline level of intelligence, despite his performance IQ score of 68; that the Plaintiffs performance IQ score was most likely a result of his long history of alcohol and drug use; that the Plaintiff"clearly" had the ability to understand, retain, and follow instructions, and had no difficulty remembering, concentrating, persisting, and attending to tasks; that the Plaintiff was a "passive, mildly depressed, substance abusing individual in need of intensive treatment for his substance abuse, " and that without that treatment, the Plaintiff could be expected to continue to abuse drugs and alcohol, not obtain employment, and develop increasingly serious physical problems.
On February 11, 1997, Dr. Tyler A. Freeman, performing a consultative physical examination for NCDDS, noted that the Plaintiffs seizures were related to alcohol withdrawal; that the Plaintiff also complained of asthma, high blood pressures, and abdominal distress, which were not supported by the examination results; that the Plaintiffs systolic blood pressure was normal at 120, and his diastolic blood pressure was only slightly elevated at 94; that every other physical system tested was grossly normal; and that the Plaintiffs current physical examination revealed normal vital signs, a generally normal exam, and normal range of motion.
On March 10, 1997, Dr. Thomas R. Morton completed a Physical Residual Functional Capacity Assessment noting that Plaintiff had no exertional limitations; that due to his history of seizures, the Plaintiff should not climb ladders, ropes, or scaffolds, and should avoid machinery and heights; but that otherwise Plaintiffs examination was generally normal.
On March 10, 1997, Dr. M.S. Breslin, an Agency psychiatrist, completed a Psychiatric Review Technique noting that the Plaintiff had an IQ between 60 and 70, although his performance was effected by his substance abuse; that as a result of the Plaintiffs on-going substance abuse, he suffered an anti-social personality disorder characterized by being dependent, liver damage, seizures, and borderline intellectual functioning; and that the Plaintiffs impairment moderately limited his activities of daily life, caused slight difficulties in maintaining social functioning, and often caused deficiencies in concentration, as well as one or two episodes of deterioration in a work-like setting.
On March 10, 1997, Dr. Breslin also completed a Mental Residual Functional Capacity Assessment concluding that the Plaintiff had moderate limitations to his ability to understand and carry out detailed instructions, to concentrate for extended periods, to work a normal workday and work week without interruptions, to interact with the public, to respond to changes in work setting, and to set goals independently; that these limitations resulted from and were affected by the Plaintiffs lifestyle of "living on the street" and abusing alcohol and drugs; and that the Plaintiff was able to work, that is — he could perform simple, routine, repetitive tasks in a low production job, such as a folder at a commercial laundry.
The vast majority of the medical records submitted to the ALJ (at or after the hearing) date from prior to the first hearing — February 15, 1994 — but the records generated after that date established that on November 30, 1995, the Agency referred the plaintiff to MAXIMUS, an agency which provides referral and monitoring services to Supplemental Security Income beneficiaries who were classified as drug addicts or alcoholics; that the Plaintiff was assigned a case manager, Steve Hanna at Gaston-Lincoln Area Mental Health, and advised of the importance of keeping his appointments; that Mr. Hanna made several attempts to refer the Plaintiff to appropriate treatment and monitoring facilities; and that the case was finally closed on June 18, 1996, because Plaintiff failed to cooperate and refused to report to the designated facilities for treatment.
On February 15, 1996, the Plaintiff was seen in the Emergency Services Department of Gaston Memorial Hospital ("GMH"), Gastonia, North Carolina, because of a "problem with alcohol" and the chart reflects that the Plaintiffs blood pressures and other vital signs were within normal limits; that his diagnosis was substance abuse with acute alcohol intoxication; that because of his acute intoxication, he was not considered a candidate for admission to the hospital's Recovery Center; and that he was discharged to sober up at home.
On February 25, 1996, the Plaintiff, complaining of alcohol withdrawal seizures and a fractured left ankle sustained in a fall caused by the seizures, was admitted to GMH under the care of Dr. Charles Agunobi who noted that the Plaintiffs ankle was placed in a cast and that Plaintiff was released on February 28, 1996, with a diagnosis of heavy alcohol abuse, seizures secondary to alcohol abuse, a fractured left ankle, and periodontal disease.
On March 8, 1996, Dr. Agunobi saw the Plaintiff in a follow-up visit and noted that Plaintiff had been drinking since his discharge from the hospital; that Plaintiff had no physical complaints, except for pain in his left leg; and that the Plaintiff did not wish to stop drinking or to participate in rehabilitation.
On October 21, 1996, the Plaintiff went to the Emergency Services Department at GMH suffering from a seizure and was discharged with instructions to avoid alcohol.
On January 25, 1997, the Plaintiff was seen by Dr. Robert H. Kahn, a dermatologist, who noted that the Plaintiff had epidermal cysts on his back and face and was given topical ointment.
From March 5, 1997, to March 17, 1997, Plaintiff was hospitalized at GMH in the "detox" unit under the care of Dr. Nilima Shukla, who noted that the Plaintiff had been smoking crack cocaine, and had experienced alcohol withdrawal seizures; that he reported a history of hepatitis C; that the Plaintiff stated he had been drinking two fifths of liquor every day; that he was medically detoxified with Librium and Thiamin, and treated with Prozac for symptoms of depression, withdrawn behavior, and psychomotor retardation; and that his discharge diagnoses were depressive disorder, NOS, alcohol dependence and cocaine abuse, hepatitis C, and elevated liver enzymes.
From April 27 to May 2, 1997, the Plaintiff, complaining of a badly cut hand, was hospitalized at GMH and the chart reflects that he stated he ran his hand through a window, in anger, to avoid hitting his live-in girlfriend; that Plaintiff admitted drinking a fifth of alcohol; that his blood alcohol level was "400+"; that a psychological evaluation performed by Dr. Benjamin Potter revealed borderline intellectual functioning; that Dr. Potter noted that "it is entirely possible that [the Plaintiff] would perform better [on the intelligence tests] after a period of sobriety" (Tr. 314); and that upon discharge, the Plaintiff expressed unwillingness and little motivation to participate in follow-up treatment.
On June 5 and 23, 1997, the Plaintiff missed appointments at The Recovery Center. The ALJ considered all of the above recited evidence and determined that Plaintiff was not "disabled" for Social Security purposes. It is from this determination that Plaintiff appeals.
III. STANDARD OF REVIEW
The Social Security Act, 42 U.S.C. § 405 (g) and § 1383(c)(3), limits this Court's review of a final decision of the Commissioner to: (1) whether substantial evidence supports the Commissioner's decision, Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); and (2) whether the Commissioner applied the correct legal standards. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). The district court does not review a final decision of the Commissionerde novo. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Kina v. Califano, 599 F.2d 597, 599 (4th Cir. 1979); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
As the Social Security Act provides, "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405 (g). In Smith v. Heckler, 782 F.2d 1176, 1179 (4th Cir. 1986), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971), the Fourth Circuit defined "substantial evidence" thus:
Substantial evidence has been defined as being "more than a scintilla and do[ing] more than creat[ing] a suspicion of the existence of a fact to be established. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."See also Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976)("We note that it is the responsibility of the [Commissioner] and not the courts to reconcile inconsistencies in the medical evil dence").
The Fourth Circuit has long emphasized that it is not for a reviewing court to re-weigh the evidence, nor to substitute its judgment for that of the Commissioner, assuming the Commissioner's final decision is supported by substantial evidence. Hays v. Sullivan, 907 F.2d at 1456 (4th Cir. 1990); see also Smith v. Schweiker, 795 F.2d at 345; and Blalock v. Richardson, 483 F.2d at 775. Indeed, this is true even if the reviewing court disagrees with the outcomemdashiso long as there is "substantial evidence" in the record to support the final decision below. Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982).
IV. DISCUSSION OF CLAIM
In the prior hearing decision, the ALJ found the Plaintiff disabled due to a personality disorder related to drug and alcohol abuse. The instant case is a redetermination adjudication pursuant to the new drug abuse and alcoholism ("DAA") statute enacted as Pub.L. 104-121, which is treated as a new application for benefits. See Hearings and Appeals Litigation Law Manual ("HALLEX") 1-5-3 14A-IV.A.
Because the issue in DAA redetermination cases is whether a plaintiff would continue to be disabled if he stopped abusing drugs/alcohol, and not whether there has been a decrease in the severity of plaintiffs physical or mental impairment(s), the medical improvement standards found at 20C.F.R. §§ 404.1594(b)(1)and 416.994(b)(1)do not apply. See 20 C.F.R. § 404.1535; 416.935; and HALLEX I-5-314A-V.B.
In DAA cases, the Commissioner's guidelines require that the ALJ first determine whether the claimant is disabled. Next, if the ALJ finds the claimant disabled, the guidelines require the ALJ determine whether there is medical evidence of drug abuse and/or alcoholism. If the claimant is disabled and there is medical evidence of drug abuse and/or alcoholism, the ALJ must determine whether the claimant would still be disabled if he stopped using drugs or alcohol (i.e., whether the drug or alcohol addiction is a material factor contributing to the disability). If drug abuse and/or alcoholism is material, the claimant cannot be considered to be disabled, and is not entitled to or eligible for benefits. 20 C.F.R. § 404.1535; 416.935. The Plaintiff has the burden of proving that his drug abuse and/or alcoholism are not contributing factors material to the determination of his disability. See Brown v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999).
In the instant redetermination adjudication, the ALJ considered the above-recited evidence and found after the hearing that the Plaintiff had not engaged in substantial gainful activity since April 24, 1993; that he had no medically determinable impairment other than alcohol abuse, which was a severe impairment; that he would not be disabled if he stopped using alcohol, that is, alcoholism was a material factor to the determination of Plaintiffs disability; and that the Plaintiff was not "disabled" under 20 C.F.R. § 404.1535; 416.935 and therefore was not eligible to receive SSI.
The Plaintiff essentially contests the ALJ's determination that the Plaintiff did not have any medically determinable impairment other than alcoholism. See "Plaintiffs Motion for Summary Judgment" and "Plaintiffs Brief Supporting . . ." (document #9). The undersigned finds that Plaintiffs assertion of error is without merit, however, and that substantial evidence supports the ALJ's decision.
At the outset, the undersigned notes that no doctor has ever concluded that the Plaintiff is disabled, whether by alcoholism or any other impairment. Furthermore, rather than proving the existence of a non-alcohol related disability, the record clearly supports the ALJ'S essential conclusion: that the Plaintiffs heavy drinking was the primary cause of his liver pain, seizures, borderline intellectual functioning, and other symptoms. This conclusion is bolstered by the fact that all of the Plaintiffs physical exams were normal, except for seizures and elevated liver enzymes — which all examining physicians attributed to the Plaintiffs heavy drinking.
In similar fashion, all of the Plaintiffs mental and intellectual problems were attributed to his heavy drinking and were expected to improve if he would stop drinking. Further, the Plaintiff exhibited an unwillingness to comply with repeated referrals to various treatment centers. See, e.g., Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986) ("If a symptom can be reasonably controlled by medication or treatment, it is not disabling"), citing Purdham v. Celebrezze, 349 F.2d 828, 830 (4th Cir. 1965); and Mickles v. Shalala, 29F.3d918, 921 (4th Cir. 1994) (evidence of treatment and medical regimen followed by claimant is proper basis for finding of no disability) (Hall, J., concurring for divided panel).
The record also establishes that Plaintiff engaged in significant daily life activities, such as cleaning, carrying out the trash, any other heavy chores requested by his grandmother, fishing, playing cards and checkers, reading, and visiting family and friends. See. e.g., Gross, 785 F.2d at 1166; and Mickles, 29 F.3d at 921.
In addition to the ALJ'S treatment of the medical records, he properly evaluated the Plaintiffs subjective complaints of pain, and the record contains substantial evidence to support the ALJ'S conclusion that Plaintiffs testimony was not fully credible.
The determination of whether a person is disabled by non-exertional pain or other symptoms is a two-step process. "First, there must be objective medical evidence showing the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged." Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996), citing 20 C.F.R. § 416.929 (b); § 404.1529 (b); 42 U.S.C. § 423 (d)(5)(A). If there is such evidence, then the ALJ must then evaluate "the intensity and persistence of the claimant's pain, and the extent to which it affects [his] ability to work." Id. at 595, citing 20 C.F.R. § 416.929 (c)(1) and § 404.1529(c)(1). The regulations provide that this evaluation must take into account:
not only the claimant's statements about his or her pain, but also "all the available evidence, " including the claimant's medical history, medical signs, and laboratory findings; any objective medical evidence of pain (such as evidence of reduced joint motion, muscle spasms, deteriorating tissues, redness, etc.); and any other evidence relevant to the severity of the impairment, such as evidence of the claimant's daily activities, specific descriptions of the pain, and any medical treatment taken to alleviate it.Id. (citations omitted).
The record contains evidence of Plaintiffs liver pain and seizures — conditions which could reasonably be expected to produce some of the pain claimed by Plaintiff — and thus the ALJ essentially found that Plaintiff could satisfy the first prong of the test articulated inCraig. However, the ALJ evaluated the "intensity and persistence of [his] pain, and the extent to which it affects [his] ability to work, " and essentially found Plaintiffs subjective description ofhis limitations not credible. Simply put, there is substantial evidence to support that finding.
"The only fair manner to weigh a subjective complaint of pain is to examine how the pain affects the routine of life." Mickles, 29 F.3d at 921, citing Hunter v. Sullivan, 993 F.2d 31 (4th Cir. 1992) (claimant's failure to fill prescription for painkiller, which itself was indicated for only mild pain, and failure to follow medical and physical therapy regimen supported ALJ'S inference that claimant's pain was not as severe as he asserted). Here, the record before the ALJ contained substantial evidence to support a finding of inconsistency between Plaintiffs claims of inability to work and his objective ability to carry on with moderate daily activities. Specifically, Plaintiff went fishing, played cards and checkers with friends, and was able to do household chores as required by his grandmother. The Plaintiff also repeatedly failed to follow through on treatment recommendations of his doctors and counselors.
Although the medical records in this case establish that Plaintiff experienced pain and mental and emotional difficulties to some degree, as the Fourth Circuit has noted, it is the ALJ'S responsibility, not the Court's, "to reconcile inconsistencies in the medical evidence." Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976). Moreover, the facts noted by the ALJ clearly support the ultimate conclusion that Plaintiffs only severe impairment was alcoholism and that he was not disabled from working by any non-alcohol related impairment.
In conclusion, "[w]here conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the Secretary (or the Secretary's designate, the ALJ)."Mickles v. Shalala, 29 F.3d 918, 923 (4th Cir. 1994), citing Simmons v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987). This is precisely such a case.
V. ORDER
NOW, THEREFORE, IT IS ORDERED:
1. "Plaintiffs Motion for summary Judgment" (document #9) is DENIED; Defendant's "Motion for Summary Judgment" (document #10) is GRANTED; and the Commissioner's decision is AFFIRMED.
2. The Clerk is directed to send copies of this Memorandum and Order to counsel for the parties.
SO ORDERED,