Jones v. Apfel, 1:97-CV-162.

• Decision Date: 17 December 1997
• Docket Number: No. 1:97-CV-162.,1:97-CV-162.
• Citation: 997 F.Supp. 1085
• Parties: Carlotta JONES, Plaintiff, v. Kenneth S. APFEL,<SMALL><SUP>1</SUP></SMALL> Commissioner of Social Security Administration.
• Court: U.S. District Court — Northern District of Indiana

997 F.Supp. 1085

Carlotta JONES, Plaintiff, v. Kenneth S. APFEL,¹ Commissioner of Social Security Administration.

No. 1:97-CV-162.

United States District Court, N.D. Indiana, Fort Wayne Division.

December 17, 1997.

Joseph W. Shull, Fort Wayne, IN, for Carlotta Jones, plaintiff.

Deborah M. Leonard, Fort Wayne, IN, for Social Security Administration, defendant.

MEMORANDUM OF DECISION AND ORDER

COSBEY, United States Magistrate Judge.

I. INTRODUCTION

This matter comes before the Court² pursuant to a complaint filed by the Plaintiff, Carlotta Jones ("Jones"), on May 2, 1997. Jones seeks judicial review under 42 U.S.C. § 405(g) of the decision of the Defendant, Kenneth S. Apfel, Commissioner of Social Security ("the Commissioner"), denying Jones's application for supplemental security income ("SSI"). Jones filed her opening brief on September 18, 1997, the Commissioner responded on December 3, 1997, Jones replied on December 15, 1997, and the appeal is ripe for review. For the reasons stated hereinafter, the final decision of the Commissioner denying Jones SSI benefits is REVERSED, and the cause is REMANDED for further development of the record.

II. FACTUAL AND PROCEDURAL HISTORY

On December 8, 1993, Jones applied for SSI benefits (with a protective filing date of November 5, 1993), claiming an onset date of disability of January 1, 1991. (Record at 34-38.) Her application was denied initially (id. at 39-40), and upon reconsideration. (Id. at 43-44.) Pursuant to Jones's request, a hearing before an Administrative Law Judge ("ALJ") was held on May 31, 1995. (Id. at 308-341.) The ALJ denied benefits on May 13, 1996, (id. at 21), and Jones requested a review of that ruling. (Id. 302-307.) The Appeals Council denied review (id. at 5-6), and as a result, the ALJ's opinion stands as the Commissioner's final decision. Luna v. Shalala, 22 F.3d 687, 689 (7th Cir.1994); 20 C.F.R. § 404.981.

Jones has very little work experience. In the past seven years, she has worked for only a few months in jobs classified as a saw operator and salvage worker by a Vocational Expert ("VE") during the ALJ hearing. (Id. at 246.) She also worked for less than a month for a shoe repair business in conjunction with a Vocational Rehabilitation program. (Id. at 226, 315-18.)

Jones' medical history reveals a long history of drug and alcohol abuse. Jones related to many of her treating counselors and doctors that she has used marijuana, alcohol, cocaine, acid, heroin, and speed in varying degrees since she was 14 years old. (See, e.g., id. at 124.) At the time of the ALJ hearing Jones continued to smoke significant quantities of marijuana on a daily basis. (Id. at 323.) ("Q: How much do you smoke? A: As much as I can. Three or four joints a day.") We shall return to the issue of Jones' continuing use of drugs infra.

Jones' allegations of disability are based upon her psychological impairments, which are of long duration and for which she has received treatment on a consistent basis since 1989. Jones first sought counseling for her alleged mental disabilities from Kristine Haworth Connerly ("Connerly"), at Family and Children's Services, Inc., from 1989 through 1991. (Id. at 208.) At that time, Connerly's diagnosis was Adjustment Disorder with Depressed Mood. (Id.) Connerly reported that during these years time she saw little change in the emotional state of Jones, who ceased coming to therapy near the end of 1991. (Id.)

During the same time period Jones was undergoing alcohol counseling at Park Center's Drug and Alcohol Department ("Park Center"). (Id. at 145.) During this period of counseling she was referred for a psychological evaluation to assess her intellectual and emotional functioning due to her numerous failures to attend counseling sessions and her apparent high risk for non-compliance with the treatment plan. (Id.) She was found to be in the Borderline range of intelligence.³ (Id. at 46.) Other test results indicated Jones had limited learned arithmetic skills, difficulty with numerical reasoning acuity, and a reading level equivalent to the beginning of seventh grade. (Id.) The test results also reflected difficulty with attention and concentration skills and short-term memory. (Id.)

On May 26, 1990, she was discharged from the Park Center program because her behaviors and attitudes had not changed a great deal over the course of treatment. On October 14, 1991, Jones was admitted into the residential alcohol and drug addiction program at the Washington House in Fort Wayne, Indiana. (Id. at 87.) She completed most of the program, but left prior to completion after admitting to using drugs while away from the facility, and because she had to take her father to Mississippi. (Id. at 87, 89.)

In late 1994 Jones returned to Connerly at Family and Children's Services on a self-referral basis after having been released from a treatment center. (Id. at 208.) At that time she admitted that she was cocaine and alcohol dependent. (Id.) Jones ceased treatment after five months due to her financial situation. (Id.) Connerly's diagnosis at that time was Cocaine Dependence, Alcohol Abuse, and Dysthymia.⁴ (Id.)

In February 1993 Jones returned to Park Center for a problem she was having with anger control and unresolved grief over the death of her father. (Id. at 139.) During the intake interview Jones had difficulty concentrating and became tearful. (Id.) She also stated that her appetite had been somewhat inconsistent. (Id.)

Jones was then treated by Dr. Scott W. Salon, a psychologist, and Dr. Herbert P. Trier, a psychiatrist, from at least April 30, 1993, through January 17, 1994. (Id. at 169.) The doctors completed a Report of Psychiatric Status. (Id. at 169-184.) Their diagnoses were Depression Not Otherwise Specified (NOS),⁵ Substance Abuse (Marijuana), Mixed Personality Disorder, and Narcissistic and Paranoid features.⁶ Their report indicates that Jones had told the doctors that she does not go out into public situations unaccompanied due to feeling scared, and that she generally isolates herself at home. (Id. at 170.) Jones also reported that she had overwhelming depression and anxiety, and the doctors observed that she had on occasions presented at the Family Practice Center or their offices for immediate medication due to feeling that her emotions were out of control. (Id.) The doctors noted that she was easily disrupted and overwhelmed by stress, and reported that despite psychotropic medication she often had difficulty sleeping and felt at risk for not being able to control her emotions, especially her anger. (Id.) Jones also reported considerable difficulty concentrating due to preoccupation with problems. (Id.) The doctors observed that she was easily disrupted and her condition is exacerbated by stress. (Id.) The doctors noted they had observed emotional liability in the patient. (Id.) The doctors indicated that Jones could not attend to a simple repetitive task continuously for a two hour period of time, because she usually is preoccupied with worry about becoming aggressive or violent and is very limited in her ability to tolerate interpersonal stress. (Id.)

Jones returned again to Connerly for therapy in March of 1994. Later that year Connerly diagnosed Jones with Polysubstance Dependence (primarily cocaine, cannabis, and alcohol); Intermittent Explosive Disorder⁷; Major Depression; Borderline Intellectual Functioning; Developmental Reading Disorders;⁸ Expressive Writing Disorder;⁹ and Developmental Arithmetic Disorder.¹⁰ By August of 1994, Connerly was of the opinion that Ms. Jones was unable to seek employment, which Connerly attributed to her depression and educational delays. (Id. at 209.)

Dr. Neil S. Shamberg, a clinical psychologist, performed a psychological evaluation on Jones in June of 1994 at the request of Vocational Rehabilitation. (Id. at 199-204.) Jones fell into the "dull normal" category of intelligence; however, her Performance IQ and Full Scale IQ fell into the middle of the "borderline intellectual functioning" category. (Id.) She was also given a Wechsler Memory Scale test, and received a score in the borderline mentally retarded range. (Id.)

Dr. Shamberg's evaluation also showed Jones had problems with attention and concentration skills and short-term memory. (Id.) Dr. Shamberg also noted that during the testing Jones appeared tense, very upset, jittery, easily frustrated and distracted, and cried at times. (Id.) Jones' reading ability was at the sixth grade level, her spelling score below the third grade level, and her arithmetic score at the fourth grade level. (Id. at 202.) Dr. Shamberg stated that she suffered from the learning disabilities of dyslexia, dysgraphia, and dyscalculia. The functional limitations of these learning disabilities include an inability to read with comprehension at much above the late fifth grade level, the inability to spell and write much above the second grade level, and the inability to do simple arithmetic calculations much above the mid-fourth grade level. (Id.) Additionally, Jones' reading comprehension grade equivalent was only 5.7. (Id.)

Dr. Shamberg chose not to give Jones the Minnesota Multiphasic Personality Inventory ("MMPI")¹¹ because in his opinion her reading level was too low for her to complete it. (Id. at 200, 202.) Instead, he gave her the Rorschach personality test.¹² (Id. at 202.) Dr. Shamberg stated that she gave him a very sad, depressed picture, including several classic signs of current deep depression, including paucity of response, dysphoric and dysthymic content long, slow initial reaction times, and gory imagery. (Id.) Dr. Shamberg was of the opinion that Jones was very severely depressed, though she was clearly in contact with reality. (Id.)

Dr. Shamberg gave the following diagnoses: Major depression (recurrent, severe, and without psychotic features);¹³ Alcohol and Cannabis dependence; Borderline intellectual functioning;...