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Patterson v. Colvin

United States District Court, E.D. Missouri, Northern Division

December 15, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          JOHN M. BODENHAUSEN United States Magistrate Judge

         This action is before the Court, pursuant to the Social Security Act (“the Act”), 42 U.S.C. §§ 401, et seq. The Act authorizes judicial review of the final decision of the Commissioner of Social Security (the “Commissioner”) denying Plaintiff James P. Patterson, Jr.'s application for Disability Insurance Benefits (“DIB”). All matters are pending before the undersigned United States Magistrate Judge with consent of the parties, pursuant to 28 U.S.C. § 636(c). The matter is fully briefed, and for the reasons discussed below, the Commissioner's decision will be reversed and remanded.


         Plaintiff has a long and complicated history with respect to applying for various forms of Social Security benefits. Plaintiff is currently receiving Social Security Insurance benefits from an April 2012 application. (Tr. 11)[1] The instant case involves the narrow question of whether the onset of Plaintiff's disability occurred on August 26, 2010, which would be earlier than the previously determined onset date. (Id.) Because Plaintiff's date last insured was September 30, 2010, this case presents the even narrower question (at least in terms of time) of whether Plaintiff was disabled between August 26, 2010 and September 30, 2010.

         Plaintiff's present claim was denied initially on September 30, 2012. (Tr. 11) Thereafter, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was held on March 11, 2014, in Hannibal, Missouri. (Id.) Plaintiff and Gary F. Weimholt, a Vocational Expert (“VE”), testified at the hearing. (Tr. 11, 31-96) Plaintiff was represented at the hearing and a significant portion of the hearing transcript involves a conversation between the ALJ and counsel regarding the record and the scope of the issue actually involved in this matter. (Id.)

         In a decision dated April 14, 2014, the ALJ concluded that Plaintiff was not disabled under the Act during the time period in question. (Tr. 11-23) The Social Security Administration Appeals Council denied Plaintiff's request for review, leaving the ALJ's decision as the final decision of the Commissioner in this matter. (Tr. 1-4) Plaintiff filed the instant action on October 30, 2015. (ECF No. 1) Accordingly, Plaintiff has exhausted his administrative remedies and the matter is properly before this Court. Plaintiff has been represented throughout all relevant proceedings.

         Although the ultimate issue before the Court is whether substantial evidence supports the Commissioner's decision, Plaintiff has identified several alleged errors for this Court's review. Broadly speaking, Plaintiff contends that the ALJ failed to properly consider the onset of his cognitive/mental impairment(s). More specifically, Plaintiff argues that the ALJ should have employed the services of a medical advisor to “discuss whether Plaintiff's mental disorders could have manifested themselves before his date last insured ….” (ECF No. 22 at 9) Plaintiff next argues that the ALJ erred in failing to give any weight to lay evidence regarding the onset of his mental disorders. (Id.) Finally, Plaintiff alleges that the ALJ failed to follow the regulatory protocol applicable for determining disability when a substance use disorder is present. (Id. at 10, citing 20 C.F.R. § 404.1535).

         The ALJ's decision in this matter was, by and large, very thorough, thoughtful, organized and well-reasoned. On the basis of the existing record, however, the undersigned cannot say that the ALJ's decision properly followed the regulatory protocol for determining disability when a substance use disorder is present. Accordingly, this case will be reversed and remanded for further proceedings.


         I. General

         Plaintiff was 41 years old at the time of his alleged onset date. In his Disability Report - Adult form, Plaintiff listed the following conditions that impaired his ability to work: (1) depression; (2) bipolar disorder; (3) social anxiety disorder; (4) diabetes; (5) back pain; (6) high blood pressure; (7) kidney problems; (8) hypertension; (9) hyperlipidemia; and (10) fatigue. At the time of his application, Plaintiff was living in a residential care facility. (Tr. 210)

         In a Function Report - Adult, dated May 3, 2012 and completed on Plaintiff's behalf by his case manager Kina St. Clair, Plaintiff listed numerous limitations regarding his ability to work. Plaintiff indicated that his impairments affected the following abilities: lifting, squatting, bending, standing, walking, sitting, kneeling, stair climbing, seeing, memory, completing tasks, concentration, understanding, and following instructions. (Tr. 284-91) Plaintiff's case manager also completed a Function Report Adult - Third Party, dated May 3, 2012. The case manager's report did not list as many limitations as Plaintiff listed in his own report. The case manager indicated that Plaintiff's impairments affected the following abilities: understanding, following instructions, completing tasks, walking, memory, and concentration. (Tr. 258-65)

         The record makes clear that Plaintiff's mental health and substance abuse (alcohol in particular) were issues that required consideration before the ALJ. For example, in a letter to the ALJ dated March 25, 2014, Plaintiff's attorney explained that Plaintiff's prior disability case focused on Plaintiff's

physical ailments[, ] and since the prior decision there [has been] a great deal of development in the documentation and treatment of [Plaintiff's] psychological ailments…. These records should show … that [Plaintiff] has been dealing with psychological disease [and] that his condition has worsened and his treatment has proportionately increased. You will also note that Dr. Clark opines that claimant's limitations due to his psychological impairments are significant free of alcohol and drugs.

(Tr. 309-10)[3]

         II. Administrative Hearing

         On March 11, 2014, the ALJ conducted a hearing on Plaintiff's application. (Tr. 31-96) Plaintiff appeared in person, with counsel present. Appearing by telephone was Gary Weimhalt, an independent vocational expert (“VE”). (Tr. 31) At the outset of the hearing, the ALJ and Plaintiff's counsel discussed at length Plaintiff's prior case (which was then pending review in this Court), [4] the time period covered by the current application, and the scope of the record that the ALJ should consider in addressing the issues raised by Plaintiff's current application. Plaintiff's counsel attempted to persuade the ALJ that the existing record showed that Plaintiff's mental limitations existed and were documented in the record, during the relevant time period. (See, e.g., Tr. 35-37) The ALJ and counsel also discussed how Plaintiff's alcohol abuse impacted his condition. According to counsel, Plaintiff's alcohol use was not the cause of his symptoms/problems, and that Plaintiff was disabled despite “relapses” involving alcohol abuse. (See, e.g., Tr. 39)[5]

         The ALJ and counsel agreed that the timeframe at issue in this case was narrow-August 26, 2010, to September 30, 2010-and that Plaintiff's mental condition eventually prevented him from working. (Tr. 42) Counsel focused the ALJ's attention largely on two specific medical events in particular-a January 2010 hospital stay after a suicide attempt, and a psychiatric hospital stay in November 2010. Both involved alcohol use. (Tr. 42-43) Counsel represented, however, that even during Plaintiff's periods of sobriety, his condition was not sufficient to permit him to “function even outside of a residential care facility.” (Tr. 49)

         Plaintiff also testified at the hearing in response to questions posed by counsel and the ALJ. Plaintiff testified about his January 2010 suicide attempt and hospitalization. According to Plaintiff, after the event, his depression “stuck around, ” and his anxiety increased. (Tr. 57-58) Plaintiff explained that, although he stopped drinking for a while, he relapsed until he began taking anti-psychotic medications. (Tr. 59) During his relapse into alcohol abuse, Plaintiff would drink a fifth of vodka per day. (Tr. 66) Plaintiff began taking Risperdal and Gabapentin in approximately May 2011. (Tr. 68) At the time of the hearing, Plaintiff indicated he had been sober for about five months, and his depression improved when he was not drinking. (Tr. 81)

         Plaintiff also testified about having thoughts of people being out to get him and issues with anxiety over the years. (Tr. 61-62) At one point during the hearing, Plaintiff was given a break so he could take his medication-Ativan. (Tr. 63)

         Plaintiff also testified that, despite his alcohol abuse, he had been able to work. According to Plaintiff, it was his diabetes that finally caused him to stop working. (Tr. 77-78) Plaintiff also noted that his anxiety also interfered with his ability to work. (Tr. 82)

         Gary Weimhalt, the VE, testified in response to questions from the ALJ. The ALJ asked the VE to consider a hypothetical individual having the same age, education, and work experience as Plaintiff. The hypothetical individual would further be capable of light work (occasionally lifting up to 20 pounds, and frequent lifting/carrying of up to 10 pounds). The person would be capable of standing and walking six out of eight hours, and sitting up to six out of eight hours. The individual would not climb ropes, ladders, or scaffolds, and would only occasionally climb ramps and stairs, stoop, kneel, crouch, or crawl. The person would avoid concentrated exposure to extreme cold, vibration, and work hazards such as unprotected heights and dangerous moving machinery. The person could understand, remember, and carry out simple instructions (unskilled work), in a low stress environment with no strict production quotas or fast-paced production work, with only simple decision-making related to basic work functions. The person would tolerate only infrequent changes and only occasional contact with co-workers and supervisors, and no contact with the general public. (Tr. 87-88) The VE concluded that such an individual could not return to Plaintiff's past work, but could perform other available work, such as a housekeeper or laundry worker. (Tr. 88-89)

         The ALJ next asked the VE to consider a similar hypothetical individual, with the additional restriction that the person would be distracted from work at least 20 percent of the workday, at unpredictable times. The VE opined that such a person could not maintain a job. (Tr. 90)

         Plaintiff's lawyer asked the VE to consider a hypothetical worker with significant interpersonal communication issues, resulting in a breakdown of communication with supervisors and co-workers. The VE opined that, if the problems were frequent enough, it would preclude permanent employment. (Tr. 91-92)

         III. ALJ& ...

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