Edwards v. Commissioner of Social Sec.

• Decision Date: 10 September 2009
• Docket Number: Case No. 1:08-cv-374.
• Citation: 654 F.Supp.2d 692
• Parties: Nancy EDWARDS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Western District of Michigan

654 F.Supp.2d 692

Nancy EDWARDS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

Case No. 1:08-cv-374.

United States District Court, W.D. Michigan, Southern Division.

September 10, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Themis J. Fotieo, Reamon Fotieo Szczytko & Fedewa, PC, Grand Rapids, MI, for Plaintiff.

James E. Hail, Social Security Administration, Chicago, IL, Matthew L. Meyer, U.S. Attorney, Grand Rapids, MI, for Defendant.

OPINION and ORDER

PAUL L. MALONEY, Chief Judge.

Overruling the Plaintiff's Objections and Adopting the R & R; Declining Sentence-Six Remand for Consideration of Untimely Evidence; Affirming the Commissioner's Denial of Disability Benefits; Terminating and Closing the Case

Pursuant to 28 U.S.C. § 636 and W.D. MICH. LCIVR 72.2(b), this matter was automatically referred to the Honorable Ellen S. Carmody, United States Magistrate Judge, who issued a Report and Recommendation ("R & R") on July 30, 2009 [document # 14]. Plaintiff filed timely objections on August 3, 2009 [document # 15]. The court also finds that plaintiff's objections are sufficiently specific and articulated to trigger de novo review of the portions of the R & R to which she has objected.¹ As ordered by the court, the Commissioner timely filed a response to the objections on August 25, 2009 [document # 18]. Edwards did not file a reply brief within the time allotted by the Rules, nor did she seek an extension of time in which to do so.²

The court finds the R & R to be well-reasoned and is unconvinced by the plaintiff's objections. For the reasons explained by the R & R, substantial evidence supported the ALJ's October 2007 determination that Edwards' impairments —bipolar disorder, anxiety, and carpal tunnel syndrome—did not render her disabled between her alleged onset date (August 27, 2004) and her date last insured ("DLI").

The Magistrate Judge noted that when Edwards checked herself into a hospital on August 30, 2004, she was suffering from depression, insomnia, low energy, poor concentration, social withdrawal, suicidal thoughts, anxiety and panic; had been drinking for years, including about a bottle and a half of champagne daily at the current time; was using Ambien to fall asleep, which caused "hangovers" in the morning; and was experiencing money problems and job stress; was having difficulty recovering from a rape 22 years earlier and from her husband's death 15 years earlier; and had a GAF score³ of only 18 (on a scale of zero to 100), which indicated that she was in "some danger of hurting [her]self or others or occasionally fail[ing] to maintain minimal personal hygiene or [experiencing] gross impairment in communication." See R & R at 706 (citing Transcript at 164-68 and DSM-IV at 34). Edwards was diagnosed with recurrent, severe, major depressive disorder without psychotic features (in substantial remission) and a suicidal tendency (also in remission), leading her to participate in therapy, but not psychological testing because such testing was not indicated. See R & R at 706 (citing Tr. at 156-58).

When Edwards was discharged from the hospital six days later, on September 4, 2004, her GAF had markedly improved to 70—which indicates that she had only "some mild symptoms or some difficulty in social, occupational, or school functioning, but [was] generally functioning pretty well [and had] some meaningful interpersonal relationships"; her prognosis was "good" with treatment, "fair" without treatment, and "poor" if she continued to use drugs and alcohol; and she was cleared to work without restrictions. See R & R at 706-07 (citing Tr. at 155 and 157-58 and DSM-IV at 34). According to treatment notes, Edwards was no longer taking anti-depressant medication by December 7, 2004, but a March 2005 consultative examination by Neil Reilly, M.A., showed her reporting "pretty constant" depression; manic episodes lasting two to three days; a failure or refusal to shower, dress, or get out of bed for as long as eight days recently; a history of addiction to prescription medications; and anxiety at family gatherings. See R & R at 707 (citing Tr. at 170 and 192). Edwards reported that her medications "helped some", but admitted that she continued to drink alcohol "a couple times a week", drinking "four glasses of wine at a time", and stated that her depression worsened as she drank more. See R & R at 707 (citing Tr. at 192 and 193). As for daily activities, Edwards reported reading a lot, spending "a lot of time" on the Internet, cooking, washing dishes, shopping, and doing laundry. See R & R at 707 (citing Tr. 194 and 195-96). Although Edwards appeared anxious and was assigned a GAF diminished to 58,⁴ examination showed a normal mental status; she was diagnosed with moderate to severe bipolar disorder⁵, generalized anxiety⁶ with some post-traumatic features, and alcohol dependence.

The following month, April 2005, a Dr. Overbey completed a Psychiatric Review Technique form finding that Edwards was dependent on alcohol and suffered a mood disturbance which satisfied the Part A criterion for the Section 12.04 "Affective Disorder" Listing of Impairments, but not any of the Part B criteria. Dr. Overbey found that Edwards was moderately restricted in daily living activities; social functioning; maintaining concentration, persistence or pace; and had experienced one or two episodes of decompensation. See R & R at 707 (citing Tr. at 207-223). "As our Circuit has explained, `Decompensation is the appearance or exacerbation of a mental disorder due to failure of defense mechanisms.'" Bailey v. SSA, 623 F.Supp.2d 889, 895 n. 16 (W.D.Mich.2009) (Maloney, C.J.) (quoting Kornecky, 167 Fed.Appx. at 499 n. 3) (quoting STEDMAN'S MED. DICTIONARY 462 (27th ed.2000)); see also Lee v. Astrue, 2009 WL 693156, *12 n. 24 (M.D.Tenn. Mar. 13, 2009) ("Decompensation is the `failure of defense mechanisms resulting in progressive personality disintegration.'") (quoting DORLAND'S ILLUS. MED. DICTIONARY 437 (27th ed.1988)).⁷ Significantly, Dr. Overbey's written Mental RFC assessment found that Edwards was moderately limited in four areas (understanding and memory, sustained concentration and persistence, social interaction, and adaptation) but either "not significantly limited" or not limited at all in the other sixteen categories. See R & R at 707 (citing Tr. at 221-223).

In September 2005, five months after Overbey's examination, Edwards said she was going to try to find a part-time job but was "finding it hard not to drink." Over one year later, in September 2006, treatment notes indicate Edwards was still drinking a full bottle of wine around noon every day. See R & R at 707 (citing Tr. at 227 & 229). Three months later, in December 2006, Edwards again reported that she was drinking "a fifth" of wine, which equates to a full bottle, every day.⁸ At that time, consulting physician Dr. Jack Carr examined Edwards at her attorney's office, noted an affect fluctuating between euphoric and tearful, assigned a GAF score of 45, and diagnosed her with alcohol dependence and bipolar II disorder-depressed. See R & R at 707-08 (citing Tr. at 231 and 237). Edwards told Dr. Carr that a job would be "helpful", but he noted that it was "not clear" whether she had made any "significant effort" to find work. See R & R at 708 (citing Tr. at 237-4240). Five months later, treatment notes stated that Edwards continued to drink a full bottle of alcohol every day and had not taken "any steps to curb her drinking." See R & R at 708 (citing Tr. at 246). Finally, in June 2007, Edwards' treating psychiatrist characterized her prognosis as "poor", opining that her functioning was "marginal" due to depression, social withdrawal avolition⁹, and her abuse of alcohol. See R & R at 708 (citing Tr. at 245).

Since January 1, 1997, federal statute has effectively required the SSA to determine disability without considering the effects of substance abuse and addiction, and the statute draws no distinction between alcohol and other drugs, nor between legal and illegal drugs. See Pub.L. No. 104-121, 110 Stat. 847 (1996). "[T]he social security administration must deny a claim for benefits if drug addiction or alcohol is a contributing factor material [to] a finding of disability." Siemon v. SSA, 72 Fed.Appx. 421, 422 (6th Cir.2003) (p.c.) (Keith, Cole, Cook) (citing 42 U.S.C. §§ 423(d)(2)(C) and 20 C.F.R. § 404.1535). See, e.g., id. (affirming ALJ's determination that claimant was not rendered disabled by his chronic hepatitis B, dysthymia, anxiety, personality disorder, and history of alcohol dependency); Ellison v. SSA, 101 Fed.Appx. 994, 995 (6th Cir. 2004) (p.c.) (Siler, Cole, Rogers) (affirming ALJ's determination that under new statutory standard, claimant's severe impairments of degenerative disc disease, dysthymia, and alcoholic neuropathy left him able to perform a significant range of light work); Hopkins v. SSA, 96 Fed. Appx. 393, 395 (6th Cir.2004) (p.c.) (Kennedy, Martin, Rogers) ("Because Hopkins' original award of benefits was based on his drug addiction and alcoholism, the Commissioner was required by law to terminate Hopkins' benefits. The law requires that the Commissioner make a new medical determination on whether Hopkins was disabled without considering his drug addiction and alcoholism.") (citing 42 U.S.C. §§ 423(d)(2)(C) and 1382(a)(3)(J)).

The ALJ applied the correct legal standards, and determined that Edwards' substance abuse disorder, bipolar disorder, anxiety disorder and borderline personality disorder rendered her disabled, but that her acknowledged substance abuse was material to the ultimate determination whether she was disabled. He went on to find that if Edwards discontinued her substance abuse, she would retain the capacity to perform work that did not require her to maintain concentration and attention to perform detailed or complex tasks. Those limitations prevented her from performing her past...