Postell v. Comm'r of Soc. Sec.
| Decision Date | 06 August 2015 |
| Docket Number | Case No. 14-11244 |
| Parties | KENDRA POSTELL, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
REPORT AND RECOMMENDATION CROSS MOTIONS FOR SUMMARY JUDGMENT (Dkt. 17, 20)
A. Proceedings in this Court
On March 26, 2014, plaintiff filed the instant suit seeking judicial review of the Commissioner's unfavorable decision disallowing benefits. (Dkt. 1). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge Linda V. Parker referred this matter to the undersigned for the purpose of reviewing the Commissioner's decision denying plaintiff's claims for period of disability, disability insurance benefits and supplemental security income. (Dkt. 3). This matter is before the Court on cross-motions for summary judgment. (Dkt. 17, 20).
A. Administrative Proceedings
Plaintiff filed the instant claims on July 23, 2010, alleging that she wasdisabled on December 31, 2004. (Dkt. 11-2, Pg ID 53). The claims were initially disapproved by the Commissioner on August 8, 2011. Id. Plaintiff requested a hearing and on June 19, 2012, plaintiff appeared with counsel before Administrative Law Judge (ALJ), Anthony R. Smereka, who considered the case de novo. (Dkt. 11-2, Pg ID 70-113). In a decision dated September 28, 2012, the ALJ found that plaintiff was not disabled. (Dkt. 11-2, Pg ID 50-64). Plaintiff requested a review of that decision, and the ALJ's decision became the final decision of the Commissioner when, after review of additional exhibits, the Appeals Council, on January 24, 2014, denied plaintiff's request for review. (Dkt. 11-2, Pg ID 36-39); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).1
For the reasons set forth below, the undersigned RECOMMENDS that plaintiff's motion for summary judgment be GRANTED in part, that defendant's motion for summary judgment be DENIED in part, that the findings of the Commissioner be REVERSED in part, and that this matter be REMANDED forfurther consideration.
Plaintiff was 23 years old on the alleged disability onset date. (Dkt. 11-2, Pg ID 61). Plaintiff's relevant work history included work as an assembly person, kitchen aide, cashier, hostess, waitress, hotel housekeeper and retail clerk. (Dkt. 11-2, Pg ID 61). The ALJ applied the five-step disability analysis to plaintiff's claims and found at step one that plaintiff had not engaged in substantial gainful activity since the alleged onset date. (Dkt. 11-2, Pg ID 56). At step two, the ALJ found that plaintiff's alcohol abuse, major depression and anxiety disorder were "severe" within the meaning of the second sequential step. Id. At step three, the ALJ found that plaintiff's severe impairments, including her alcohol abuse, rendered her unable to work and disabled. (Dkt. 11-2, Pg ID 60-61). The ALJ then found that if plaintiff stopped abusing alcohol, she would be limited to unskilled work, but no work with the general public or with more than occasional contact with co-workers or supervisors and no work in production pace settings. (Dkt. 11-2, Pg ID 62). At step four, the ALJ found that if plaintiff stopped abusing alcohol, she would be unable to perform her past relevant work. (Dkt. 11-2, Pg ID 63). At step five, the ALJ denied plaintiff benefits because, if plaintiff stopped the substance abuse, she could perform a significant number of jobsavailable in the national economy. (Dkt. 11-2, Pg ID 63-64).
According to plaintiff, the ALJ erred in concluding that plaintiff's severe impairments did not meet or medically equal a listing. Plaintiff contends that the ALJ lacked substantial evidence to formulate the conclusion that the claimant was "not disabled" as a result of what the ALJ considered to be a "material factor," i.e., alcohol abuse. Plaintiff points to the case of Gonchoroff v. Soc. Sec. Comm'r, 2013 WL 1279091 (E.D. Mich. 2013), which outlined how the Commissioner would determine whether "drug addiction or alcoholism is a contributing factor material to the determination of disability." Id at 8. Plaintiff maintains that the ALJ did not follow those requirements in this case, and thus lacked substantial evidence to conclude that the claimant was not disabled.
In Finding 4 of the ALJ's decision, the ALJ stated that he reviewed Listed Impairments § 12.04, § 12.05 and § 12.06 to assess whether plaintiff's impairments met and/or equaled a Listed Impairment. However, plaintiff says that it is unclear from the analysis whether or not the ALJ was considering plaintiff's mental impairment, without the overlay of her previous use of alcohol, and/or, whether he was still attributing alcohol abuse to the plaintiff in determining the severity of her impairments. This included his assessment of plaintiff's ADL's, social functioning, concentration, persistence and/or pace.
In evaluating plaintiff's activities of daily living, the ALJ described plaintiff's activities as including "cleaning, shopping, cooking, doing laundry and appropriate personal care and grooming." (Tr. 20). Later, the ALJ cited where this information had been gleaned from, specifically a Third Party Function Report completed by a friend of plaintiff's, Raymond Williams. (Tr. 27). Here, the ALJ selectively used some statements made by Mr. Williams, and gave his "opinion great weight," without mentioning that Mr. Williams also stated that plaintiff needs reminders regarding taking medicine ... that she did not spend time with others ... she needs to be reminded to go places ... that she has problems getting along with others, with "a gentle talk" turning into "hostile profanity" ... that she does not finish what she starts ..., and, that she does not get along well with authority figures. (Tr. 308-314). Plaintiff submits that the ALJ cannot "cherry pick" the evidence to only consider those statements that comport with the ALJ's own ultimate conclusion.
Also, reviewing her ADL's, the ALJ cites a 2006 consulting examination report indicating that plaintiff "got her kids ready for school, bathed them and cooked." (Tr. 20). Then the ALJ notes "however, the removal of her children from her home, demonstrated that she struggled to maintain her activities of daily living and care for her own children." (Tr. 20). According to plaintiff, from these two excerpts, it is unclear how the ALJ determined that she only had "moderate"limitations with regard to her ADL's, and/or how alcohol use affected or did not affect plaintiff's abilities in this regard. Plaintiff's "struggles" to care for her children resulted, eventually, in the termination of her parental rights, suggesting significant difficulties with her activities of daily living.
With regard to "social functioning," the ALJ found that plaintiff only had "moderate difficulties" in this regard. (Tr. 23). However, as an explanation for his finding, the ALJ stated (Tr. 23). With the foregoing statement, plaintiff says it is unclear how the ALJ concluded that plaintiff only had "moderate" limitations with social functioning.
With regard to concentration, persistence or pace, the ALJ concluded that plaintiff only had "moderate" difficulties in this regard, while adding that "when the claimant was abusing alcohol, drinking up to two fifths per day, it is clear that she would not retain the concentration and attention required to complete work-related tasks." (Tr. 23). According to plaintiff, however, the ALJ does not discuss how her emotional impairments, without the use of alcohol, would have improved her ability to maintain concentration, persistence or pace. The ALJ added, as further rationale for concluding that plaintiff had the ability toconcentrate "in spite of her conditions," the statement that she "played video games as recently as last year," which was "illustrative" of her abilities. (Tr. 23). Plaintiff points out that there was no questioning as to her actual abilities to "play video games." There was merely a statement that she "played" her "Wii game," in lieu of being around other people, i.e., this was her way of socializing, by herself. (Tr. 563).
The ALJ also incorrectly concluded that plaintiff was able to "function outside of her home" because she "managed to work on a part-time basis during the applicable period." (Tr. 24). However, testimony at the hearing revealed that the last time plaintiff worked was in 2010, earning only $200, and stating that she worked "like a two-day job for a temporary service." (Tr. 40).
In an effort to bolster the conclusion that plaintiff's problems were mainly a result of her abuse of alcohol, the ALJ cited information from a May 2004 evaluation wherein he noted that she was "drinking a few cups of liquor approximately three times a week." (Tr. 25). According to plaintiff, the ALJ did address the fact that Dr. Asha Jain, psychiatrist at Community Network Services, in April 2010 diagnosed "the claimant with major depression disorder and alcohol abuse in remission." (Tr. 24, 536). However, the ALJ then added "it is not clear that the claimant was really in remission at this time," because at another consulting exam in February 2011, "she admitted that she stopped drinking inNovember 2010, and prior, had been drinking up to two fifths per day, suggesting that she was not sober at the April 2010 appointment with Dr. Jain." (Tr. 24). Plaintiff contends that it is not clear how the ALJ took such a huge leap to state that the claimant was drinking "up to two fifths per day" in 2010, when that information was gleaned from a report authored considerably earlier,...
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...of alcohol or drug usage without some competent evidence or more thorough explanation."); Postell v. Comm'r of Soc. Sec., No. 14-11244, 2015 WL 5545554, at *10 (E.D. Mich. Aug. 6, 2015), report and recommendation adopted, No. CV 14-11244, 2015 WL 5545576 (E.D. Mich. Sept. 18, 2015) (finding......