Wyman v SSA

• Court: District Court, D. New Hampshire
• Decided: February 15, 2013
• Docket: CV-11-574-PB
• Status: Published

Opinion

Wyman v SSA CV-11-574-PB 2/15/13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jennifer Wyman

v. Case No. ll-cv-574-PB Opinion No. 2 013 DNH 019 Michael J. Astrue. Commissioner Social Security Administration

MEMORANDUM AND ORDER

Jennifer Wyman seeks judicial review of a ruling by the

Commissioner of the Social Security Administration denying her

application for Supplemental Security Income benefits ("SSI") .

Wyman claims that the Administrative Law Judge ("ALJ") who

denied her claim lacked substantial evidence to support his

finding that alcohol dependence was a contributing factor

material to her disability. For the reasons set forth below, I

remand the case for further proceedings before the Commissioner.

I. BACKGROUND1

Wyman was born on June 25, 1973, and filed for SSI at age

thirty-six. She completed high school and one year of college.

She has past work experience as a grill cook and waitress.

1 The background facts are presented in detail in the parties' Joint Statement of Material Facts (Doc. No. 17) and are summarized here. Citations to the Administrative Transcript are indicated by "Tr." A. Procedural History

Wyman filed for SSI on December 15, 2009, alleging

disability due to depression and anxiety. Tr. 117. She alleged

a disability onset date of December 14, 2009. Id. The Social

Security Administration denied Wyman's claim on February 23,

2010, and again on reconsideration two days later. She

requested a hearing, at which she and a vocational expert ("VE")

testified. On May 27, 2011, the ALJ issued a decision finding

that Wyman was not disabled within the meaning of the Social

Security Act.

B. Treatment History

On July 14, 2010, Susan Leonard, a licensed social worker,

examined Wyman and noted that she had a history of sexual abuse

and alcoholism. Wyman told Leonard that she drank beer every

day and used cocaine intermittently. Leonard noted that Wyman

seemed incapable of working, had some social skills, reported

feeling comfortable only when under the influence, had little

self-awareness, and historically was unable to maintain a

medication regimen. Wyman performed well on her mental status

examinations, except that she used her fingers to count and made

some spelling errors. Leonard diagnosed Wyman with post-

traumatic stress disorder, cocaine dependence without 2 physiological dependence, alcohol dependence with physiological

dependence, and personality disorder not otherwise specified

with borderline and antisocial traits. She opined that Wyman

had a Global Assessment of Functioning ("GAF") score of 45.2

Quentin Turnbull, M.D., concurred with Leonard's assessment.

On August 20, 2010, Dr. Janet Carella, M.D., examined

Wyman. Wyman reported that she drank six beers at a time,

several times a week, but denied using other substances. She

denied suicidal and homicidal ideation. She claimed that her

mood was unpredictable and that she had trouble sleeping.

During a later examination on October 5, 2010, Wyman told Dr.

Carella that she was drinking approximately six beers a day,

down from eighteen to twenty-one beers.

On October 19, 2010, Michele Authier, a social worker, and

Dr. Paul Lidstrom, M.D., conducted an intake assessment of

Wyman. Wyman reported that she routinely drank ten to twelve

2 The GAF scale is used to track "the clinical progress of individuals in global terms, using a single measure. The GAF Scale is to be rated with respect only to psychological, social, and occupational functioning." Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 32 (rev. 4th ed. 2000) [hereinafter DSM-IV]. GAF scores range from 0- 100. A GAF score of 41-50 indicates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. at 34.

3 beers a day, down from twenty-four. Dr. Lidstrom diagnosed

Wyman with post-traumatic stress disorder, alcohol dependence

with physiological dependence, and personality disorder not

otherwise specified with borderline antisocial traits.

On December 14, 2010, Nicole Fischler, a nurse

practitioner, diagnosed Wyman with depressive disorder,

generalized anxiety, substance abuse disorder, post-traumatic

stress, and abuse/neglect. A mental status examination revealed

that Wyman had normal orientation, attention, concentration,

memory, language, and thought; nervous mood and affect; and fair

judgment and insight. Fischler noted that Wyman was working

with a counselor at White Mountain Mental Health to deal with

her alcoholism. Tr. 369. On December 29, 2010, Fischler opined

that Wyman's post-traumatic stress disorder, depression, history

of domestic violence, and alcoholism caused her to be

permanently disabled.

On January 20, 2011, Dr. Jeffrey Kay, a clinical

psychologist, conducted a psychiatric evaluation. He found that

Wyman was depressed and anxious, but neat, clean, friendly, and

cooperative. She displayed a flat affect, denied hallucinating

when sober, did not demonstrate any other abnormalities of

thought content, and had average attention and short-term

memory. Based on the mental status examination. Dr. Kay 4 determined that Wyman had a moderate degree of functional loss

in her ability to perform daily activities, to engage in social

interactions, and to react to work-related stress. He concluded

that she had a slight degree of functional loss in her ability

to perform work related tasks. He also opined that Wyman had a

good probability of returning to work in one to two years. Dr.

Kay diagnosed Wyman with bipolar II disorder, post-traumatic

stress disorder (chronic and with social phobia and

agoraphobia), and alcohol dependence without psychological

dependence in early partial remission.

On April 4, 2011, Wyman told Fischler that she was "not

doing good at all." She said that she was getting angry and

yelling at others and had mood swings. She said she had started

drinking again and had already consumed three beers. A mental

status exam revealed normal orientation, attention,

concentration, memory, speech, and thought; nervous mood and

affect; and fair insight and judgment. Fischler assessed Wyman

with alcoholism relapse. She prescribed Lamotrigine to

stabilize her mood and Clonidine for anxiety.

On April 12, 2011, Fischler filled out a "Psychiatric

Checklist" supplied by Wyman's attorney. She noted that Wyman

had marked difficulties using the telephone, paying bills,

planning daily activities, and holding a job. She also reported 5 that Wyman had repeated episodes of deterioration or

decompensation in stressful situations. She concluded that

Wyman would experience the same limitations even if she stopped

using drugs or alcohol.

B. Administrative Hearing - May 16, 2011

1. Wyman's Testimony

Wyman testified that she began drinking as a teenager in

response to abuse she had suffered as a child. She reported

that she suffers from depression, post-traumatic stress

disorder, and associated anxiety disorders. She also claimed to

suffer that she suffers from nightmares and agoraphobia and

stated that her post-traumatic stress disorder makes it

difficult for her to cope with stress.

She reported that she stopped working on December 31, 2007,

because the business where she worked closed. She claimed that

she has not looked for work because she has been in and out of

jail. She also testified that she has been incarcerated for

most of the past twenty years for crimes such as drug

possession, forgery, and criminal trespassing.

Wyman stated that she is not able to work because she does

not feel like going to work when she is having "bad days." On

a "bad day" Wyman testified that she feels anxious and

depressed. She also claimed that she cannot predict when a "bad 6 day" will occur.

On a typical day, Wyman wakes up, takes a shower, washes

dishes, and watches television. She testified that she has

panic attacks when she goes outside. Her friends help her with

laundry and shopping. She testified that she cannot deal with

stress or meet deadlines.

She reported that she does not have any problems with

memory, but that her impairments affect her ability to complete

tasks, concentrate, and get along with others. She has a

particularly difficult time concentrating around men because she

believes they look at her in a sexual manner.

Wyman claimed that she stopped drinking in January 2011.

2. Vocational Expert's Testimony

VE Ralph Richardson testified that Wyman previously worked

as a grill cook and waitress. The ALJ asked Richardson whether

an individual with no exertional limitations, who is limited to

simple, routine, and repetitive tasks performed in an

environment involving only simple work-related decisions and

routine workplace changes, and who needs to be isolated from the

public with only occasional supervision and occasional

interaction with coworkers, could perform Wyman's past relevant

work. The VE responded that such an individual could not

perform Wyman's past relevant work because it would involve more 7 than occasional interaction with coworkers. The ALJ then asked

the VE whether an individual with the same residual functional

capacity ("RFC"), age, education, and relevant work experience

as Wyman could perform any unskilled occupations. The VE

testified that such a person could perform the jobs of kitchen

helper, cleaner, and marker.

The ALJ then asked the VE how many absences per month would

be tolerated by an employer, and the VE responded that fewer

than two absences per month would be tolerated by an employer,

and that two or more absences per month on a consistent basis

would generally not be tolerated by an employer.

C. The ALJ's Decision

In his decision dated May 27, 2011, the ALJ followed the

five-step sequential evaluation process set forth in 20 C.F.R.

416.920(a) to determine whether an individual is disabled. Tr.

16-24. At the first step, the ALJ found that Wyman had not

engaged in any substantial gainful activity since December 16,

2009, the application date. At step two, the ALJ found that

Wyman has the following severe impairments: alcohol abuse and

depression. At step three, the ALJ found that Wyman's

impairments, including her substance abuse, meet sections 12.04

and 12.09 of 20 C.F.R. P t . 404, Subpt. P, A p p . 1. The ALJ

further found that even if Wyman stopped her substance abuse. her remaining limitations would cause more than a minimal impact

on her ability to perform basic work activities. The ALJ found

that Wyman would still have a severe impairment or combination

of impairments even without her substance abuse, but that these

impairments would not meet or medically equal one of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The

ALJ also concluded that if Wyman stopped her substance abuse,

she would have the RFC to perform a full range of work at all

exertional levels, except that: "she is limited to simple,

routine and repetitive tasks, performed in an environment

involving only simple work-related decisions and routine

workplace changes. She would need to be isolated from the

interaction with co-workers."

At step four, the ALJ concluded that Wyman would be unable

to perform any past relevant work even if she stopped her

substance abuse. Finally, at step five, the ALJ noted that,

considering Wyman's age, education, work experience, and RFC,

there are jobs that exist in significant numbers in the national

economy that Wyman could perform if she stopped her substance

abuse. Thus, the ALJ concluded that Wyman was not disabled

within the meaning of the Social Security Act at any time from

December 16, 2009, through May 27, 2011. 9 II. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), I am authorized to review the

pleadings submitted by the parties and the administrative record

and enter a judgment affirming, modifying, or reversing the

"final decision" of the Commissioner. My review "is limited to

determining whether the ALJ used the proper legal standards and

found facts [based] upon the proper quantum of evidence." Ward

v. Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000) .

The findings of fact made by the ALJ are accorded deference

as long as they are supported by substantial evidence. Id.

Substantial evidence to support factual findings exists "'if a

reasonable mind, reviewing the evidence in the record as a

whole, could accept it as adequate to support his conclusion.'"

Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765,

769 (1st Cir. 1991) (per curiam) (quoting Rodriquez v. Sec'y of

Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981) ) . If

the substantial evidence standard is met, factual findings are

conclusive even if the record "arguably could support a

different conclusion." Id. at 770. Findings are not

conclusive, however, if they are derived by "ignoring evidence,

misapplying the law, or judging matters entrusted to experts."

Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).

10 The ALJ is responsible for determining issues of

credibility and for drawing inferences from evidence in the

record. Irlanda Ortiz, 955 F.2d at 769. It is the role of the

ALJ, not the court, to resolve conflicts in the evidence. Id.

The ALJ follows a five-step sequential analysis for

determining whether an applicant is disabled. 20 C.F.R. §

416.920. The applicant bears the burden through the first four

steps of proving that her impairments preclude her from working.

Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). At the

fifth step, the Commissioner must present "evidence of specific

jobs in the national economy that the applicant can still

perform." Id.; Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir.

2001) .

Il l . ANALYSIS

If the ALJ finds a claimant is disabled and there is

medical evidence of drug addiction or alcoholism, the ALJ must

determine whether the drug addiction or alcoholism is a

contributing factor material to the determination of disability.

20 C.F.R. § 416.935. The central issue in determining the

materiality of drug addiction or alcoholism is whether the ALJ

would find the claimant disabled even if he or she stopped using

drugs or alcohol. 20 C.F.R. § 416.935(b)(1). If the claimant's 11 drug addiction or alcoholism is a contributing factor material

to the determination of the claimant's disability, the claimant

is ineligible for SSI benefits. Grogan v. Barnhart, 399 F.3d

1257, 1264 (10th Cir. 2005); Randall v. Astrue, 09-cv-11273-NG,

2011 WL 573603, at *1 (D. Mass. Feb. 15, 2011) .

In determining that a claimant's alcoholism or drug

addiction was a contributing factor material to the

determination of disability, the ALJ must identify some medical

evidence supporting the conclusion that a claimant no longer

would be disabled if he or she stopped drinking or taking drugs.

Sklenar v. Barnhart, 195 F. Supp. 2d 696, 700 (W.D.Pa. 2002).

The only medical evidence that the ALJ cites to support his

conclusion that Wyman would not be disabled if she stopped

abusing alcohol is a statement made by Dr. Turnbull that

"Jennifer is unable to function in almost every area of her life

due to her drinking[.] [S]he had worked in the past but seems

incapable at this time." Tr. 339. When this statement is read

in context, however, it is quite clear that Dr. Turnbill was

merely attempting to describe Wyman's residual functional

capacity during a period in which she was abusing alcohol. He

was not expressing an opinion as to what her residual functional

capacity might be if she were able to successfully address her

alcoholism. Because the ALJ acknowledged the fact that Wyman 12 suffers from serious psychological problems even when she is not

drinking, he cannot rely on a physician's statement that she is

unable to work when she is drinking for the very different

proposition that she could work if she stopped abusing alcohol.

The ALJ's statement that Wyman's excessive drinking "occurs

in conjunction with each instance of exacerbation of her mental

health symptomatology" also fails to support his ultimate

conclusion that her alcohol abuse is material to her inability

to work. A correlation between alcohol use and the exacerbation

of an existing mental health problem can suggest either that

consuming alcohol makes the problem worse or that a worsening

psychological problem results in more alcohol consumption. This

evidence, therefore, does not lend much support to the ALJ's

drinking alcohol. In any event, the ALJ's conclusion must be

discounted because there is no evidence in the record to support

a finding that Wyman's condition improves substantially during

periods of sobriety. See Estes v. Barnhart, 275 F.3d 722, 725

(8th Cir. 2002) (finding alcohol to be a contributing factor

material to disability where "[t]he evidence reflected that when

Estes reduced her alcohol use she was able to conduct daily

activities and perform certain jobs, confirming the conclusion

that Estes's condition improved during periods of sobriety"). 13 In summary, the evidence the ALJ cites does not amount to

substantial evidence to support his conclusion that Wyman's

alcoholism is a contributing factor material to her disability.

See White v. Comm'r of Soc. Sec., 302 F. Supp. 2d 170, 176

(W.D.N.Y. 2004) (finding no medical evidence to support ALJ's

conclusion regarding the effect of claimant's alcoholism on his

mental impairments).3

IV. CONCLUSION

For the foregoing reasons, I deny the Commissioner's motion

to affirm (Doc. No. 16) and grant Wyman's motion to reverse or

remand (Doc. No. 12). Pursuant to 42 U.S.C. § 405(g), I remand

the case to the Social Security Administration for further

proceedings consistent with this decision.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

February 7, 2012

3 The ALJ also failed to explain his decision to reject substantial medical evidence in the record suggesting that Wyman suffers from post-traumatic stress disorder and/or bipolar disorder in addition to depression. On remand, the ALJ shall reassess the medical evidence with respect to this issue and make findings to support his conclusion.

14 cc: Ralph A. Giangregorio, Esq. T. David Plourde, Esq.