The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
WILLIAM JAMES OLIVER, JR. PLAINTIFF
v. CIVIL NO. 22-5206
KILOLO KIJAKAZI, Acting Commissioner
Social Security Administration DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, William James Oliver, Jr., brings this action pursuant to 42 U.S.C. § 405(g),
seeking judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying his claims for period of disability and disability insurance benefits (DIB)
under the provisions of Title II of the Social Security Act (Act). In this judicial review, the Court
must determine whether there is substantial evidence in the administrative record to support the
Commissioner's decision. See 42 U.S.C. § 405(g).
I. Procedural Background:
Plaintiff protectively filed his current application for DIB on October 13, 2020, alleging an
inability to work since August 13, 2020, due to a back injury, a neck injury, fibromyalgia, chronic
fatigue syndrome, post-traumatic stress disorder (PTSD), major depressive disorder, an adjustment
reaction disorder, anxiety, a panic disorder, substance use disorder and sleep apnea. (Tr. 80, 180).
An administrative telephonic hearing was held on June 2, 2022, at which Plaintiff appeared with
counsel and testified. (Tr. 43-76).
By written decision dated June 22, 2022, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 15).
Specifically, the ALJ found Plaintiff had the following severe impairments: degenerative disk
disease of the thoracic spine with mild compression fractures; mild to moderate degenerative disk
disease of the lumbar spine; mild to moderate degenerative disk disease of the cervical spine;
fibromyalgia; PTSD; depression; anxiety; and alcohol abuse. The ALJ found that including
Plaintiff’s substance use, there would be no jobs that existed in significant numbers in the national
economy that Plaintiff could have performed. (Tr. 22). The ALJ determined if Plaintiff stopped
the substance use, the remaining impairments would cause more than a minimal impact on
Plaintiff’s ability to perform basic work activities. (Tr. 23). The ALJ found if Plaintiff stopped the
substance use, Plaintiff’s impairments or combination of impairments would not meet or equal the
level of severity of any impairment listed in the Listing of Impairments found in Appendix I,
Subpart P, Regulation No. 4. (Tr. 24). The ALJ found if Plaintiff stopped the substance use, he
retained the residual functional capacity (RFC) to:
[P]erform light work as defined in 20 CFR 404.1567(b) except that he cannot climb
ladders, ropes, and scaffolds and can only occasionally stoop, kneel, crouch, crawl
and climb ramps and stairs. He can understand, remember, and carry out simple
routine, and repetitive tasks, respond to usual work situations and routine work
changes, respond to supervision that is simple, direct, and concrete, and
occasionally interact with the general public.
(Tr. 26). With the help of a vocational expert, the ALJ determined if Plaintiff stopped the substance
use, he could perform work as a routing clerk, a merchandise marker, and a power screwdriver
operator. (Tr. 35). The ALJ found Plaintiff’s substance use disorder is a contributing factor
material to the determination of disability because Plaintiff would not be disabled if he stopped
the substance use. (Tr. 36).
Plaintiff then requested a review of the hearing decision by the Appeals Council, who
denied that request on August 23, 2022. (Tr. 1-6). Subsequently, Plaintiff filed this action. (ECF
No. 2). Both parties have filed appeal briefs, and the case is before the undersigned for report and
recommendation. (ECF Nos. 10, 12).
The Court has reviewed the entire transcript. The complete set of facts and arguments are
presented in the parties’ briefs and are repeated here only to the extent necessary.
II. Applicable Law:
The Court reviews “the ALJ’s decision to deny disability insurance benefits de novo to
ensure that there was no legal error that the findings of fact are supported by substantial evidence
on the record as a whole.” Brown v. Colvin, 825 F. 3d 936, 939 (8th Cir. 2016). Substantial
evidence is less than a preponderance, but it is enough that a reasonable mind would find it
adequate to support the Commissioner’s decision. Biestek v. Berryhill, 139 S.Ct. 1148, 1154
(2019). We must affirm the ALJ’s decision if the record contains substantial evidence to support
it. Lawson v. Colvin, 807 F.3d 962, 964 (8th Cir. 2015). As long as there is substantial evidence
in the record that supports the Commissioner’s decision, the court may not reverse it simply
because substantial evidence exists in the record that would have supported a contrary outcome,
or because the court would have decided the case differently. Miller v. Colvin, 784 F.3d 472, 477
(8th Cir. 2015). In other words, if after reviewing the record it is possible to draw two inconsistent
positions from the evidence and one of those positions represents the findings of the ALJ, we must
affirm the ALJ’s decision. Id.
It is well established that a claimant for Social Security disability benefits has the burden
of proving his disability by establishing a physical or mental disability that has lasted at least one
year and that prevents him from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see also 42 U.S.C. § 423(d)(1)(A). The Act
defines “physical or mental impairment” as “an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). A Plaintiff must show that
his disability, not simply his impairment, has lasted for at least twelve consecutive months.
The Commissioner’s regulations require her to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing his claim; (2) whether the claimant has a severe physical and/or mental
impairment or combination of impairments; (3) whether the impairment(s) meet or equal an
impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national economy
given his age, education, and experience. See 20 C.F.R. § 404.1520. Only if the final stage is
reached does the fact finder consider the Plaintiff’s age, education, and work experience in light
of his residual functional capacity. Id.
III. Discussion:
Of particular concern to the undersigned is the ALJ’s RFC determination. RFC is the most
a person can do despite that person’s limitations. 20 C.F.R. § 404.1545(a)(1). It is assessed using
all relevant evidence in the record. Id. This includes medical records, observations of treating
physicians and others, and the claimant’s own descriptions of his limitations. Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th
Cir. 2004). Limitations resulting from symptoms such as pain are also factored into the assessment.
20 C.F.R. § 404.1545(a)(3). The United States Court of Appeals for the Eighth Circuit has held
that a “claimant’s residual functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d
700, 704 (8th Cir. 2001). Therefore, an ALJ’s determination concerning a claimant’s RFC must
be supported by medical evidence that addresses the claimant’s ability to function in the
workplace. Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003). “[T]he ALJ is [also] required
to set forth specifically a claimant’s limitations and to determine how those limitations affect his
RFC.” Id.
In this case, the ALJ found that when all of Plaintiff’s impairments, including his alcohol
use, were considered Plaintiff could perform light work with limitations that included being off
task for twenty percent of the workday. (Tr. 19). However, if the effect of Plaintiff’s alcohol use
was not considered, the ALJ found Plaintiff maintained the same RFC, with the exception that he
would no longer be off task for twenty percent of the workday. (Tr. 26).
When evaluating the effects of drug addiction or alcoholism (“DAA”), the ALJ must
determine whether DAA is material to the determination of disability. See Whittle v. Berryhill, No.
4:18-CV-04095-VLD, 2019 WL 2124247, at *28-29 (D.S.D. May 15, 2019) (citing SSR 13-2p, §
5). In order to determine if substance abuse is “material,” the ALJ first evaluates all of the
claimant's impairments, including the substance abuse. Malone v. Colvin, No. CIV. 12-3098, 2014
WL 348590, at *3 (W.D. Ark. Jan. 31, 2014). “The plain text of the relevant regulation requires
the ALJ to first determine whether [a claimant] is disabled.” Brueggemann v. Barnhart, 348 F.3d
689, 694 (8th Cir. 2003) (citing 20 C.F.R. § 404.1535(a)). Specifically, the ALJ must first
determine if a claimant's symptoms, regardless of cause, constitute disability. Kluesner v. Astrue,
607 F.3d 533, 537 (8th Cir. 2010) (citing Brueggemann, 348 F.3d at 694).
The ALJ must then project which of the impairments, if any, would remain at a disabling
level if the claimant stopped his substance abuse. Malone, 2014 WL 348590, at *3 (citing SSR 13-
2p; Brueggemann, 348 F.3d at 694-695). “The focus of the inquiry is on the impairments remaining
if the substance abuse ceased, and whether those impairments are disabling, regardless of their
cause.” Pettit v. Apfel, 218 F.3d 901, 903 (8th Cir. 2000) (citing 20 C.F.R. § 404.1535(b)(1);
Jackson v. Apfel, 162 F.3d 533, 537-538 (8th Cir. 1998)). Although, the claimant carries the burden
of proving substance abuse is not a contributing factor material to the claimed disability. Estes v.
Barnhart, 275 F.3d 722, 725 (8th Cir. 2002) (citing Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th
Cir. 2000)). However, active and ongoing substance abuse does not automatically require a finding
that the substance abuse is material. Malone, 2014 WL 348590, at *3 (citing SSR 13-2p;
Brueggemann, 348 F.3d at 695). Rather, the ALJ must take on the challenging task of untangling
the warp threads of the claimant's substance abuse from the woof threads of the claimant's other
impairments to examine the hypothetical cloth that remains. Taylor v. Colvin, No. CIV. 13-2108,
2014 WL 2584826, at *3 (W.D. Ark. June 10, 2014). When there are concurrent mental disorders
in addition to a claimant's DAA, as here, SSR 13-2p makes clear that the ALJ must be able to
separate the effects of the two types of impairments to find DAA material. Nelson v. Saul, 413 F.
Supp. 3d 886, 912–13 (E.D. Mo. 2019).
With respect to the RFC determination, the evidence relied on by the ALJ does not
adequately separate the effects of Plaintiff's alcohol abuse from the effects of his co-occurring
mental disorders of PTSD, depression and anxiety. A review of the record revealed that neither
non-examining nor examining mental health professionals attempted to separate the impacts of
Plaintiff’s alcohol abuse from the impacts of his co-occurring severe mental impairments. See Fox
v. Colvin, 2016 WL 728271, at *9 (E.D. Mo. Feb. 24, 2016) (remanding in absence of evidence an
acceptable medical source had considered the extent to which claimant's mental impairments
would remain when the effects of substance abuse were absent).
Furthermore, the Court cannot discern how the ALJ could have adequately considered
Plaintiff's functioning during periods of sobriety when the ALJ never clearly identified Plaintiff's
period of sobriety. Malone, 2014 WL 348590, at *3. In her decision, the ALJ noted that on
February 26, 2021, Plaintiff reported his longest period of sobriety in years, and that Plaintiff
testified at the administrative hearing on June 2, 2022, that he had been sober for thirteen months.
(Tr. 26, 29). However, the record revealed Plaintiff reported he had gone on a binge on April 11,
2021, drinking a half gallon or more of alcohol; and, in April of 2022, Dr. Jesse F. Walker reported
Plaintiff continued to use alcohol. (Tr. 3877, 4106).
For the reasons stated above, the ALJ's decision is not supported by substantial evidence.
The Court finds that the current record cannot support a disability determination either in favor of
or against Plaintiff. Thus, a remand to the Commissioner is warranted for further administrative
proceedings to revisit the sequential DAA evaluation process because the record needs to be further
developed regarding Plaintiff's ability to function if the effects of his DAA were disregarded.
IV. Conclusion:
Based on the foregoing, the undersigned recommends reversing the decision of the ALJ
and remanding this case to the Commissioner for further consideration pursuant to sentence four
of 42 U.S.C. § 405(g). The parties have fourteen days from receipt of our report and
recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The
failure to file timely objections may result in waiver of the right to appeal questions of fact.
The parties are reminded that objections must be both timely and specific to trigger de novo
review by the district court.
DATED this 3rd day of October 2023.
is Anca _Comatack
HON. CHRASTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE