Kellum v. Comm'r of Soc. Sec.
| Decision Date | 19 March 2021 |
| Docket Number | CIVIL ACTION NO. 1:19-CV-188-DAS |
| Parties | PRESTON BURKE KELLUM PLAINTIFF v. COMMISSIONER OF SOCIAL SECURITY DEFENDANT |
| Court | U.S. District Court — Northern District of Mississippi |
This case makes its second appearance before this court. The plaintiff initially applied for benefits on August 20, 2012. The administrative law judge (ALJ) originally found that Kellum was not disabled and his drug and alcohol abuse (DAA) was not a severe impairment. In the first appeal this court remanded the case finding that the ALJ did not adequately explain why she discounted the opinions of Dr. Hardy; provided no analysis of how she considered the opinions of a treating therapist; and failed to mention the testimony of Kellum's mother.
While the case was on appeal to this court, Kellum underwent substantial additional treatment, including in-patient treatment for depression and drug and alcohol dependency. After a second hearing and considering the new treatment records, the ALJ again denied the claim. This time the ALJ found that considering all Kellum's impairments, including his drug and alcohol abuse, he was disabled. The ALJ further found if Kellum stopped abusing drugs and alcohol he would be able to work. Because his drug and alcohol abuse were material, contributing factors to his disability, Kellum was not entitled to benefits.
The plaintiff argues that the ALJ erred in denying the plaintiff's request for appointment of a medical expert; in finding that Kellum's drug and alcohol abuse materially contributed to his disability; and in failing to explain the inconsistent findings between the two decisions.
The Commissioner counters that, on a voluminous record with multiple experts' opinions, the ALJ did not err in declining to appoint a medical expert; that the decision is supported by substantial evidence; and that the ALJ was not bound by the vacated 2014 decision, nor obliged to explain why parts of the decision were different.
This court's review of the Commissioner's decision is limited to an inquiry into whether there is substantial evidence to support the findings of the Commissioner, Richardson v. Perales, 402 U.S. 389, 401 (1971), and whether the correct legal standards were applied. 42 U.S.C. § 405 (g.); Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence has been defined as Perales, 402 U.S. at 401 (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)). The Fifth Circuit has further held that substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but 'no substantial evidence' will be found only where there is a 'conspicuous absence of credible choices' or 'no contrary medical evidence.'" Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)). Conflicts in the evidence are for the Commissioner to decide, and if substantial evidence is found to support the decision, the decision must be affirmed even if there is evidence on the other side. Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The court may not reweigh the evidence, try the case de novo, or substitute its own judgment for that of theCommissioner, Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988), even if it finds that the evidence preponderates against the Commissioner's decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); Harrell, 862 F.2d at 475. The court must however, despite its limited role, "scrutinize the record in its entirety "to determine the reasonableness of the decision ... and whether substantial evidence exists to support it." Randall v. Sullivan, 956 F.2d 105, 109 (%the Cir. 1992). If the Commissioner's decision is supported by the evidence, then it is a conclusive and must be upheld. Perales, 402 U.S. at 390.
The ALJ issued her decision finding that the plaintiff was not entitled to SSI benefits because his substance abuse was a material, contributing factor to his disability. At Step Two, the ALJ found that Kellum had four severe impairments: anxiety, depression, an alcohol abuse disorder, and a cannabis abuse disorder. In evaluating the "B" criteria, including his substance abuse, the ALJ found Kellum had moderate restrictions in understanding, remembering, and applying information, moderate difficulties in interacting with others, marked limitations in concentrating, persisting, or maintaining pace, and moderate limitations in adapting or managing himself. At Step Three, the ALJ determined none of Kellum's conditions met any Listing of Impairments.
As required by Social Security Ruling 13-2p, 2013 WL 1221979 (Mar. 22, 2013), the ALJ did an initial assessment of Kellum's residual functional capacity (RFC), incorporating all impairments, including limitations caused by his substance abuse. The ALJ addressed the non-expert evidence noting that Kellum's mother and sister said he could not follow extensive directions but could follow simple, limited instructions. Though he had lived primarily with family, there was no indication that he lacked the ability to understand and apply basic facts andcommon knowledge in his everyday life. While he had some difficulty in social activities, he spent time with family and friends and went out in public. His mood was improved when he was on medications. He had a good rapport with his providers. Kellum and family concurred he made better decisions when he was medicated and sober. The ALJ found that even considering his DAA, Kellum was able to perform a greater range of work-related activities than he alleged.
The ALJ discussed the plethora of medical opinions in the file including the consultative examinations by Dr. Michael Whelan, Dr. James Lane, Ph.D., Margaret McDonald, a treating mental health therapist, Dr. Robert Hardy, his treating psychiatrist, Dr. Philip Drumheller, Ph.D., a consultative examiner, and the report of the DDS consultant. The ALJ explained why she largely rejected the opinions of Dr. Hardy and McDonald and adopted parts of the other experts' opinions in deciding the initial RFC.
The ALJ found that Kellum could perform a full range of work at all exertional levels but was limited to performing routine, repetitive work involving simple tasks and decisions. Kellum could adjust to occasional change in the workplace, and was capable of occasional interaction with coworkers and supervisors but not the public. He could not do production-pace work. Kellum could not sustain attention and concentration for two hours at a time or behave in an emotionally stable manner. He would miss three days of work per month. This RFC precluded any work.
The ALJ then assessed how well Kellum should be able to function if he were sober. The ALJ first found Kellum's other impairments would still be severe. In considering his B criteria, without his polysubstance abuse, Kellum would have mild restrictions in understanding, remembering, and applying information, as opposed to moderate restrictions with DAA. He would have moderate difficulties in interacting with others, unchanged from the initial B criteriaassessment, and moderate limitations in concentration, persistence, and pace, improving from the marked limitations with DAA. His limitations in adapting and managing himself would improve from moderate to mild limitations with sustained abstinence. Kellum's second RFC was the same as before except the ALJ found that Kellum, if sober, could maintain attention and concentration for two hours at a time; could behave in an emotionally stable manner; and could maintain the necessary attendance. With the assistance of vocational expert testimony, the ALJ found Kellum could perform his past relevant work as a construction worker. Because Kellum would not be disabled but for his DAA, the ALJ denied the claim for benefits.
In 1996, Congress amended the definition of disability under the Social Security Act concerning claimants engaging in drug or alcohol abuse in the Contract with America Advancement Act, Pub. L. No. 104-121 § 105, 110 Stat. 847, 852-54. The Act requires that a determination be made about whether a claimant's drug or alcohol abuse has been a material factor contributing to their disability. If the substance abuse is a material contributing factor, the claimant will not qualify for benefits. The regulations implementing the Act are 20 C.F.R. §§404.1535 and 416.935. The key factor in making the materiality determination is "whether we would still find you disabled if you stop using drugs or alcohol." 20 C.F.R. § 416.935 (b). The Ninth Circuit has described the necessary regulatory process as follows:
An ALJ must first conduct the five-step inquiry without separating out the impact of alcoholism or drug addiction. If the ALJ finds that the claimant is not disabled under the five-step inquiry, then the claimant is not entitled to benefits and there is no need to proceed with the analysis under 20 C.F.R. §§ 404.1535 or 416.935. If the ALJ finds the claimant is disabled and there is medical evidence of his or her drug addiction or alcoholism, then the ALJ should proceed under §§ 404.1535 or 416.935 to determine if the claimant would still be found disabled if he or she stopped using alcohol or drugs. 20 C.F.R. §§ 404.1535, 416.935
Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001) (citing Drapeau v. Massanari, 255 F.3d 1211, 1213- 14 (10th Cir. 2001)). The burden of proving that substance abuse is not a material contributing factor is on the claimant, and the ALJ followed this procedure in reaching her decision.
The plaintiff argued in his brief the ALJ erred in denying his request that a medical expert review the records and...
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