Appendices — Walker v. Massanari

APPENDIX A-1 —- DECISION FROM

ADMINISTRATIVE LAW JUDGE ERWIN C. BETTS

DATED JUNE 28, 1997

DEPARTMENT OF

HEALTH AND HUMAN SERVICES

Social Security Administration

OFFICE OF HEARING AND APPEALS

June 28, 1997

DECISION

IN THE CASE OF CLAIM FOR

Widow’s Insurance

Linda K. Walker Benefits (Disability)

(Claimant)

(XREF: 421-58-1072)

Charles W. Walker 423-52-2929

(Wage Earner) (Social Security Number)

PROCEDURAL HISTORY

The claimant, Linda Walker, filed for widow’s insurance benefits

(disability) under Title II of the Social Security Act on March 8,

1994, with a protective filing date of February 28, 1994. She

alleged disability as of January 1, 1988, due to a spastic colon and

depression. The claim was denied through the reconsideration

determination level, after which the claimant filed a request for

hearing before an Administrative Law Judge. A hearing was held

in Birmingham, Alabama on November 27, 1995, before the

undersigned. The claimant appeared and testified, and was

represented by Charles T. Clark, an attorney. Dr. David Head

appeared as vocational expert. However, on March 29, 1996,

Public Law 104-121, the Contract with America Advancement Act

of 1996, revised sections 223 (d) (2) and 1614 (a) (3) of the Social

Security Act. Specifically, section 105 of that law provides that

beginning March 29, 1996, if drug addiction and/or alcoholism is a

contributing factor material to the determination that an individual

Linda K. Walker

423-52-2929

2

is disabled, that individual is not eligible for, or entitled to,

disability benefits. This provision applied to claimants who had a

hearing before enactment of Public Law 104-121. Ms. Walker

was notified on September 17, 1996, that since this provision

applied to her, she could request a supplemental hearing. The

claimant made a timely request for a supplement hearing, which

was held in Birmingham, Alabama on April 2, 1997, before the

undersigned. The claimant appeared and testified, and was again

represented by Charles T. Clark. The vocational expert at this

hearing was Dr. William Crunk. The Administrative Law Judge

has carefully considered all the evidence in the record and

arguments presented.

LAW AND ISSUES

Section 202 (e) (4) of the Social Security Act requires that for a

widow to be found disabled and entitled to Title II benefits, she

must be the widow of a person who died fully insured, and must

establish that she was under a disability no later than 7 years after

the month the wage earner died. Section 223 (d) (1) of the Social

Security Act defines “disability” as the inability to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be

expected to result in death or which has lasted, or can be expected

to last, for a continuous period of not less than 12 months. Section

223 (d) (2) (A) of the Social Security Act further provides that an

individual shall be found to be under a disability if his or her

physical or mental impairment or impairments are of such severity

that the individual is unable to perform his previous work or any

other kind of substantial gainful activity considering his age,

education, and work experience. Pursuant to Section 205 (a) of

the Social Security Act [42 U.S.C. 405], the Commissioner of

Social Security has full power and authority to make rules and

regulations and to establish procedures not inconsistent with the

Linda K. Walker

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3

provisions of the Social Security Act which are necessary or

appropriate to carry out such provisions.

The general issue is whether the claimant is entitled to a period of

disability and widow’s insurance benefits (disability). The

specific issues are whether the claimant is under a disability as

defined in the Social Security Act and, if so, when such disability

began. The undersigned must also decide whether alcoholism or

drug addiction is a factor material to the finding.

CONCLUSION

After giving careful consideration to all the evidence, the

Administrative Law Judge finds that although the claimant is

disabled, her drug abuse is a contributing factor material to the

determination that she is under a disability, and is, therefore,

ineligible for benefits under Public Law 104-121, the Contract

with America Advancement of 1996. This law enacted March 29,

1996, and applicable to individuals who file for benefits, or whose

claims are finally adjudicated, on or after March 29, 1996. In

accordance with the determination that the claimant has not been

under a disability beginning January 1, 1998, and through the date

of this decision, since her remaining impairments would not be

disabling, and she could perform a significant number of jobs

existing in the national economy compatible with her vocational

profile and residual functional capacity. Therefore, she is not

eligible for disabled widow’s benefits by virtue of the application

of February 28, 1994.

SUMMARY AND EVALUATION OF THE EVIDENCE

The claimant, Linda Walker, is 54 years old, having been born on

November 19, 1942, and has the equivalence of a high school

education. She is the unremarried widow of Charles W. Walker,

Linda K. Walker

423-52-2929

4

who died fully insured under the Social Security Act on December

18, 1993. The claimant testified that she is no longer able to work

due to poor memory and stress. She said that she also has a hard

time holding food down, and sometimes gags herself to get the

food back up. The claimant testified that she has had a problem

with abuse of prescription drugs and narcotics for about 30 years,

but has not taken drugs for about 4 or 5 years, and is currently on

the Methadone program under supervision twice weekly. She said

that she also drank alcohol heavily up until her husband died in

1993. The claimant expressed that she has always had problems

with nervousness and panic attacks, and said that these have gotten

worse with age. She stated that she does not have the money for a

private psychiatrist.

As for daily activities, the claimant stated that she does her own

housework. She said that she likes to draw, but does not have the

money to pursue this hobby.

The medical evidence establishes that the claimant has been a

long-time patient of Dr. B. E. Blankenship. a psychiatrist, who has

treated the claimant for “a long history of maladaptive behavior

and anxiety and mood depression in addition to a good bit of

emotional immaturity.” Dr. Blankenship also noted that the

claimant is an alcoholic. On October 5, 1985, the claimant was

admitted to the hospital for detoxification of analgesics and

alcohol. Over the course of many years, the claimant had been

prescribed Tofranil, Valium, Restoril, Darvocet, and Darvon.

(Exhibit 31)

The medical evidence also shows that the claimant has a long

history of intermittent solid food dysphagia. In September 1991,

she was treated for chronic diarrhea and cramping. (Exhibit 16)

|

a a a a aT ae

Linda K. Walker

423-52-2929

5

A report from the Tri County Treatment Center reveals that the

claimant began a drug free program with Methadone treatment in

October 1992. (Exhibit 24)

A consultative psychological evaluation was performed on April

20, 1994, completed by Dr. Carmen Vargo-Moncier. The

claimant reported a long history of polysubstance abuse and stated

that she was currently on Methadone maintenance treatment.

Upon examination, Dr. Vargo-Moncier noted that that claimant’s

concentration and attention span were slightly impaired, and that

she possessed poor judgment. (Exhibit 18)

Dr. Robert Walton performed a consultative physical examination

on July 20, 1994, at which time the claimant complained of having

a spastic colon, chronic stomach pains, diarrhea, headaches, and

dizziness. Upon examination, it was noted that the claimant has

no problems with strength, grip, or fine movement. Dr. Walton

stated that the claimant has a flattened affect, and that she is

obviously on Methadone. He opined that her major problems are

depression, anxiety, drug dependency, and probable history of

esophageal spasm and/or esophageal ring. (Exhibit 20)

Reports from the UAB Substance Abuse and Methadone Clinic

show that the claimant began treatment with Methadone on

October 22, 1992 at Tri County Clinic, and was now coming on

October 18, 1995, to UAB because of expense of treatment at Tri

County. It was reported that the claimant’s drug abuse included

the use of amphetamines and Ritalin, and after stopping the

amphetamines she began using pain pills. It was also noted that

she had a past history of alcoholism. At the time the claimant

began treatment at UAB, the claimant gave no other complaints.

(Exhibit 37)

Linda K. Walker

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6

On June 21, 1996, the claimant entered the Community Psychiatry

Program at UAB Hospital with bad nerves as her chief complaint.

She also described symptoms of depression and anxiety. She was

evaluated by Dr. Robert Savage on July 16, 1996. The claimant

stated that she was currently on Methadone and Reglan, and takes

over-the-counter sleeping pills about four times a day. She also

stated that her chief complaints were money and depression.

Upon examination, on the Shipley, the claimant earned an

estimated WAIS-R Full Scale IQ score of 106, placing her in the

average range of intellectual functioning. Dr. Savage diag \osed

Opiod, Alcohol, Sedative Induced Mood Disorder, Opiod

Dependence (by history), Alcohol Dependence, in sustained full

remission (by history), Sedative Dependence, and Dependent

Personality Disorder (with avoidant and borderline traits). Dr.

Savage stated that no thought disorder was evidenced, and that her

depressive mood disorder was most likely substance induced. He

recommended no antidepressant medication, that she continue her

treatment in the drug free program, and should also participate in

AA/NA. (Exhibit 38)

On August 7, 1996, the claimant was seen at the psychiatry clinic,

very upset over the status of her disability application in that “she

has not gotten a check,” believing that about two years of checks

will be forthcoming. On September 23, 1996, was upset in

learning that she had been denied Social Security. She was

encouraged to get treatment for her nerves through family and

child services for supportive therapy. On September 24, 1996,

services through the UAB Community Psychiatry Program were

terminated. (Exhibit 38)

On April 15, 1996, the claimant was seen by Dr. Miles Gresham

for evaluation of dysphagia, stating that she was having a

reoccurrence of past symptoms. The claimant underwent a

panendoscopic procedure which revealed a gastric ulcer and a

Linda K. Walker

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ono

distal esophageal ulcer. She was prescribed Prilosec and Reglan,

and by June 11, 1996, the endoscope revealed healing of

esophageal and gastric ulcers. However, by October 11, 1996, Dr.

Gresham again ordered an endoscopic procedure which revealed a

distal esophageal stricture with pseudodiverticulum, status post

dilation. (Exhibit 40)

On November 15, 1996, the claimant was still complaining of

dysphagia and feelings of having a bubble of air in her chest all

the time. She informed Dr. Leitner, the treating physician, that she

had a history of ulcers, a spastic colon, and depression that was no

longer being treated. She also stated that she was currently on

Methadone treatment. An upper GI series revealed diverticular

outpouchings and some reflux, but no definite stricture. The

claimant was diagnosed with chronic esophagitis with thickening

of squamous mucosa and parakeratosis. On a follow-up visit in

February 1997, the claimant stated that she remained the same, not

worse. Dr. Leitner recommended that she continue her current

medications of Reglan, Axid, Adalat, as well as the Methadone,

and return in 3 months. (Exhibits 36 and 40)

A consultative psychiatric evaluation was-completed by Dr.

Edward Shehi on April 7, 1997. The claimant informed Dr. Shehi

that she had a long history of substance abuse, and admitted that

she had used Vicodan, Codeine, Valium, Percodan, Demerol, and

Benzidiazepines. She stated that she was currently in Methadone

treatment and counseling. She denied use of alcohol or the use of

illegal or illicit drugs at the present time. The claimant described a

typical day as one where she does her own housework and

laundry, as well as her mother’s laundry. She cooks and drives

occasionally, and does her own shopping. She said that she listens

to music and watches television about 2 to 3 hours of television

daily. The claimant further said that she has a visitor in her home

twice per month, and attends church one to two times monthly.

Linda K. Walker

423-52-2929

x

On examination, Dr. Shehi reported that the claimant exhibited

anxiety and depression, but would have no difficulty making

acceptable work decisions. He diagnosed Major Depression,

Recurrent with Generalized Anxiety Features, and Polysubstance

Abuse. Dr. Shehi completed a questionnaire regarding the

claimant’s residual functional capacity where he showed that the

claimant would have “marked” restrictions and limitations in her

ability to function on a sustained basis in a routine work setting or

elsewhere. (Exhibit 40)

In determining whether the claimant is under a “disability,” as that

term is defined by the Social Security Act, the Commissioner’s

sequential evaluation of “disability” as set forth at Social Security

Regulations 20 CFR 404.1520 had been applied. The first step of

that evaluation process requires a consideration of work activity.

The evidence of record is that the claimant has not engaged in

substantial gainful activity since her alleged onset date of January

1, 1988.

The second step of the sequential evaluation requires an

assessment of the medical evidence of record, which must

establish a “severe” impairment, or combination of impairments.

Social Security Regulations 20 CFR 404.1520 (c) define a

“severe” impairment, or combination of impairments as one that

significantly limits the ability to perform basic work related

activities. After carefully considering all of the evidence, the

undersigned finds that the claimant has the following medically

determinable impairments: dysphagia, hypertension, substance

abuse/dependence in that she is currently in Methadone treatment,

dependent personality, and substance induced mood disorder.

The third step of the sequential evaluation requires a consideration

of the impairments of Appendix | to Subpart P of Social Security

Regulations No. 4. The claimant is under a “disability” if there is

Linda K. Walker

423-52-2929

9

an impairment, or combination of impairments, of sufficient

severity to meet or equal the criteria of at least one of the

impairments found in Appendix 1. The claimant has no

impairment, other than her drug abuse/dependence, which meets

the criteria of any of the listed impairments. When all of the

claimant’s impairments are considered together, her drug

abuse/dependence prevents her from working. The undersigned

finds, however, that the claimant’s abuse/dependence in that she

is currently in Methadone treatment (Exhibit 38) is material to the

determination of his disability within the meaning of Public Law

104-121, as her impairments, other than her drug

abuse/dependence, when considered in combination, do not

prevent her from performing work. No treating physician has

mentioned findings equivalent in severity to the criteria of any

listed impairment. In reaching this conclusion, the Administrative

Law Judge has considered the opinions of the State agency

medical consultants who evaluated this issue at the initial and

reconsideration levels of the administrative review process and

reached the same conclusion. (20 CFR 404.1527 (f) and SSR 96-

6p).

The Administrative Law Judge must next consider the claimant’s

residual functional capacity, a term which describes the range of

work activities the claimant can perform despite her impairments.

In assessing the claimant’s residual functional capacity,

consideration must be given to subjective allegations. The

undersigned has reviewed the claimant’s subjective complaints in

accordance with the guidelines provided by Sociai Security

Regulations 20 CFR 404.1529 (c) and SSR 96-7p. The

undersigned has also taken into consideration the controlling case

law in the Eleventh Circuit regarding the standard used to assess

subjective complaints of pain and other subjective symptoms.

This standard requires “(1) evidence of an underlying medical

condition and either (2) objective medical evidence that confirms

Linda K. Walker

423-52-2929

10

the severity of the alleged pain arising from that condition or (3)

that the objectively determined medical condition is of such

severity that it can reasonably be expected to give rise to the

alleged pain.” Brown v. Suilivan, 921 F.2d 1233 (11" Cir. 1991).

This standard also applied to subjective symptoms other than pain.

Holt y. Sullivan, 921 F.2d 1221 (11" Cir. 1991).

Although the claimant has subjective complaints, including

depression and anxiety, the medical record, when considered in its

entirety, does not support that the claimant has a mental

impairment that could reasonably be expected to produce

symptoms above the mild to moderate level. The evidence also

clearly indicates that the claimant has no physical impairment

which would prevent her from performing work activities. Thus,

her main problem is drug abuse/dependence. The claimant’s

statements concerning her impairments, and their impact on her

ability to work, are not entirely credible in light of discrepancies

between the claimant” assertions and information contained in the

documentary reports, the medical history, and the findings upon

examination. While her depression appears to be situational, in

that it is most likely related to substance abuse as stated by Dr.

Savage, she is not currently receiving or seeking mental treatment.

Therefore, based on the objective findings set forth in the medical

record, the undersigned concludes that if the claimant were not

drug dependent, her remaining impairments would not be

disabling, and she retains the residual functional capacity for the

exertional requirements of light work with only moderate

limitations in relating to co-workers and supervisors, and in

understanding, remembering, and carrying out instructions, while

sustaining persistence and concentration in a work setting.

At step four of the sequential evaluation, it is necessary to

determine whether the claimant possesses the functional abilities

to perform her past relevant work. Since the claimant has not

Linda K. Walker

423-52-2929

11

worked in 28 years, she has no past relevant work. When one is

unable to return to past relevant work, the burden of proof shifts to

the Commissioner to show that there are other jobs existing in

significant numbers to which the claimant is able to make a

successful vocational adjustment considering age, education, work

experience and residual functional capacity. Such a determination

must be made in light of Medical-Vocational Guidelines of

Appendix 2 of the regulations (20 CFR, Subpart P, Regulations

No. 4).

The claimant is presently 54 years old, an individual “closely

approaching advance age,” and has the equivalence on a high

school education. Dr. Crunk, the vocational expert, responded to a

hypothetical question which incorporated the claimant’s age,

educational-vocational background, medically determinable

impairments, and residual functional capacity. He was also asked

to assume that the individual was moderately impaired in relating

to co-workers and supervisors, and in understanding,

remembering, and carrying out instructions, while sustaining

persistence and concentration in a work setting. Dr. Crunk

testified that there would be a significant number of jobs that such

an individual could perform, consistent with the hypothetical

profile. Examples of such jobs would include laundry service jobs

and cleaning service (office) jobs, and there would be

approximately 2,000 of these available regionally. There would

also be jobs in central supply areas of hospitals and benchwork

jobs numbering about 1,200 in the region. Based on the testimony

of the vocational expert, and considering the claimant’s

impairments within the framework of Rule 201.13 of the Medical-

Vocational Guidelines, the claimant cannot be found disabled.

Accordingly, in applying the sequential steps outlined above, the

Administrative Law Judge concludes that the claimant is “not

disabled” within the meaning of the Social Security Act, and not

Linda K. Walker

423-52-2929

12

eligible for benefits since her drug abuse/dependence is a

contributing factor material to the determination of disability.

Therefore, in accordance with Section 105 of Public Law 104-121,

the claimant is ineligible supplemental security income payments

based on this application.

FINDINGS

After careful consideration of the entire record, the Administrative

Law Judge makes the following findings:

1. The claimant is the unremarried widow of the wage earner,

who died fully insured on December 18, 1993.

2. The claimant has not engaged in substantial gainful activity

since January 1, 1988.

3. The claimant has the medically determinable impairments of

dysphagia, hypertension, substance abuse/dependence,

dependant personality, and substance induced mood disorder.

4. The claimant’s impairments, when considered in combination,

neither meet nor are medically equivalent to any impairment

listed in Appendix | to Subpart P, 20 CFR 404.

5. The claimant’s drug abuse/dependence imposes moderately

severe restrictions upon her ability to respond to customary

work pressures, and, thus, prevents her from engaging in any

substantial gainful activity.

6. The claimant cannot return to past relevant work.

Linda K. Walker

—423-52-2929

13

7. The claimant’s impairments, other than her drug

abuse/dependence, when considered in combination, limit her,

but do not prevent her from performing work at the light

exertional levels. To the extent that the claimant claimed to be

more severely impaired than this by her impairments other

than her drug abuse/dependence, her testimony was

inconsistent with and less credible than the medical evidence

of record.

8. The claimant’s impairments, other than her drug

abuse/dependence, when considered in combination, do not

prevent her from performing jobs at the light exertional level,

and experience depression and anxiety, lack of concentration,

or deterioration in a work setting above the moderate level.

9. The claimant, except for her drug abuse/dependence, has not

been “disabled” at any time through the date of this decision

under 20 CFR Section 404.1520 (e). The claimant’s drug

abuse/dependence is, therefore, material to the determination

of her disability, within the meaning of 20 CFR Section

404.1535, and the claimant is ineligible for benefits under

Public Law 104-121.

DECISION

It is the decision of the Administrative Law Judge that, based on

the application protectively filed on February 28, 1994, the

claimant is disabled under Section 202 (e) and 223, respectively of

the Social Security Act, as amended, but would not be disabled if

she stopped engaging in drug abuse. Therefore, the claimant is

ineligible for disabled widow’s benefits based on disability under

Public 104-121.

BE EOL

Set pee

Date: June 28, 1997

Erwin C. Betts

Administrative Law Judge

Suite 407, 117 Gemini Circle

Birmingham, AL 35209-5861

OHA PSY Ww

NAME: Linda Walker

SSN: 423-52-2929

Assessment is for:

Current Evaluation

Administrative Law Judge’ s Signature

Date

I,

II.

Il]

MEDICAL §

A. Medical Disposition(s):

RFC Assessment Necessary

(i.€., a severe impairment is

present which does not meet

or equal a listed impairment)

B. Based Upon Category(ies):

12.04

Reviewer’s Notes (Does not apply to OHA)

UMENTATION OF FACTORS T T

R (Evaluation of the

existence of a sign or symptom CLUSTER or

SYNDROME for the Listed Disorder.)

EVIDENCE THE DIS

PRESENT ABSENT

A.

[ ] [X]

[ ] [X]

ob

[J [X]

[ ] (X]

[ ] [X]

[ ] [X]

B.

Cc.

12.02

12.03

12.04

12.05

12.06

12.07

12.08

12.09

Organic Mental

Disorders

Schizophrenic,

Paranoid and other

Psychotic Disorders

Affective Disorders

Mental Retardation

and Autism

Anxiety Related

Disorders

Somatoform

Disorders

Personality

Disorders

Substance Addiction

Disorder

OHA PSYCHIATRIC REVIEW TECHNIQUE FORM

NAME: Linda Walker SSN: 423-52-2929

Assessment is for: Current Evaluation

Administrative Law Judge’s Signature Date

I. MEDICAL SUMMARY

A. Medical Disposition(s): | RFC Assessment Necessary

(i.e., a severe impairment is

present which does not meet

or equal a listed impairment)

B. Based Upon Category(ies): 12.04, 12.09

Il. Reviewer’s Notes (Does not apply to OHA)

II] DOCUMENTATION OF FACTORS THAT

EVIDENCE THE DISORDER (Evaluation of the

existence of a sign or symptom CLUSTER or

SYNDROME for the Listed Disorder.)

PRESENT ABSENT

[ ] [X] A. 12.02 Organic Mental

Disorders

[ ] [X] B. 12.03 Schizophrenic,

Paranoid and other

Psychotic Disorders

[X] [] Cc. 12.04 Affective Disorders

[ ] [X} D. 12.05 Mental Retardation

and Autism

[ ] [X] E. 12.06 Anxiety Related

Disorders

[ ] [X] F. 12.07 Somatoform

_ Disorders

[ ] [X] G. 12.08 Personality

Disorders

[X] {] H. 12.09 Substance Addiction

Disorder

Linda K. Walker

423-52-2929

2

S 12.04 Affective Disorders — Disturbance of mood,

accompanied by a full or partial manic or depressive

syndrome, as evidenced by at least one of the following:

PRESENT-ABSENT-INSUFFICIENT EVIDENCE

l. [ ] [X] [ ] Depressive syndrome

characterized by at least four of

the following:

a. [] Anhedonia or

pervasive loss of

interest in almost all

activities, or

b. [ ] Appetite disturbance

with change in weight,

or

c. [ ] Sleep disturbance, or

d. [ ] Psychomotor agitation

or retardation, or

e. [ ] Decreased energy, or

f. [ ] Feelings of guilt or

worthlessness, or

g.[] Difficulty

concentrating or

thinking, or

h. [ ] Thoughts of suicide,

or

i. [ ] Hallucinations,

delusions or paranoid

thinking

Si [ ] [X] [ ] Manic syndrome characterized

by at least three of the

following:

a. [ ] Hyperactivity, or

b. [ ] Pressures of speech,

or

a PY SA nse laa PE. a

Linda K. Walker

423-252-2929

3

c. [ ] Flight of ideas, or

d. [ ] Inflated self-esteem,

or

e. [ ] Decreased need for

sleep, or

f. [ ] Easy distractibility, or

g. [ ] Involvement in

activities that have a

high probability of

painful consequences

which are not

recognized, or

h. | ] Hallucinations,

delusions or paranoid

thinking

pg [ ] [X] [ ] Bipolar syndrome with a

history of episodic periods

manifested by the full

symptomatic picture of both

manic and depressive

syndromes (and currently

characterized by either or both

syndromes)

4. i i Se [ ] Other Dependent personality

and substance induced

depressive mood disorder

H. 12.09 Substance Addiction Disorders — Behavioral

changes or physical changes associated with the regular use

of substances that affect the central nervous system.

If present, evaluate under one or more of the most closely

applicable listings:

OS SET Ree aL te te a ee a oe

see eeereenns-scagenn ere anneven cantar —

% e

Linda K. Walker

423-52-2929

4

1. [ ] Listing 12.02- Organic mental disorders*

2. [ ] Listing 12.04- Affective disorders*

3. [ ] Listing 12.06- Anxiety disorders*

4. [ ] Listing 12.08- Personality disorders*

5. { ] Listing 11.14- Peripheral neuropathies*

6. [ ] Listing 5.05- Liver damage*

7. [ ] Listing 5.04- Gastritis*

8. [ ] Listing 5.08- Pancreatitis*

9. [ ] Listing 11.02 or 11.03 — Seizures*

10. [X] Other: Drug abuse and dependence

*NOTE: Items 1, 2, 3, 4, 5, 6, 7, 8, and 9 correspond to Listings

12.09A, 12.09B, 12.09C, 12.09D, 12.09E, 12.09F,

12.09G, 12.09H, and 12.091, respectively. If items 1,

2, 3, or 4 are checked, only the numbered iterns in

subsections IIIA, IIIC, IIE, or IIIG of the form need be

checked. The first two blocks under the disorder

heading in those subsections need not be checked.

IV. RATING OF IMPAIRMENT SEVERITY

A. “B” CRITERIA OF THE LISTINGS

THE FOLLOWING FUNCTIONAL LIMITATIONS (WHICH

APPLY TO PARAGRAPH B OF LISTINGS 12.02-12.04 AND

12.06-12.08 AND PARAGRAPH D OF 12.05 EXIST ASA

RESULT OF THE INDIVIDUAL’S MENTAL DISORDER ({S).

NOTE:

ITEMS 3 AND 4 BELOW ARE MORE THAN

MEASURES OF FREQUENCY. DURATION AND

EFFECTS OF THE DEFICIENCIES (ITEM 3) OR

EPISODES (ITEM 4) ARE DISCUSSED IN THE

DECISION.

Linda K. Walker

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5

Listing (s) under which the items below are being rated: 12.04,

12.09

FUNCTIONAL LIMITATION AND DEGREE OF

LIMITATION

3

§

4

¢

}

3

3

&

‘

4

§

4

*

;

l. Restrictions of Activities of Daily Living:

None [ ] Slight [ ] Moderate [X] Marked* [ ] Extreme [ ]

Insuff Evid [ ]

y Difficulties in Maintaining Social Functioning:

None [ ] Slight [ ] Moderate [X] Marked* [ ] Extreme [ ]

Insuff Evid [ }

3. Deficiencies of Concentration, Persistence or Pace

Resulting in Failure to Complete Tasks in a Timely

Manner (in work settings or elsewhere):

Never [] Seldom [] Often [ ] Frequent* [X] Constant [ ]

Insuff Evid [ ]

4. Episodes of Deterioration or Decompensation in Work

or Work-Like Settings Which Cause the Individual to

Withdraw from that Situation or to Experience

Exacerbation of Signs and Symptoms (which may

Include Deterioration of Adaptive Behaviors):

Never [X] Once/Twice [ ] Repeated* [3+] Continual [ ]

Insuff Evid [ ]

*Degree of limitation that satisfies the Listings: Extreme, Constant

and Continual also satisfy that requirement.

Linda K. Walker

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6

B. ummary of Functional Limitation Rating for “B”

Criteria

NO. OF FUNCTIONAL LIMITATIONS MANIFESTED AT

THELISTING LEVEL: [1] (The number must be at least 2 to

satisfy the requirements of paragraph B in Listings 12.02, 12.03,

12.04 and 12.06 and paragraph D in 12.05; and at least 3 to satisfy

the requirements in paragraph B in Listings 12.07 and 12.08)

Se NLT NASIR EH) —

APPENDIX A-2 - DECISION FROM THE APPEALS

COUNCIL BY APPEALS OFFICER MARK K. HAYDU

DATED JANUARY 19, 1999

BE EAN ROE FOE (OO OEP oe EOD < eens ee

Refer to: TAHBL Office of Hearings and Appeals

421-58-1072 5107 Leesburg Pike

Falls Church, VA 22041-3255

ACTION OF APPEALS COUNCIL ON REQUEST FOR

REVIEW

Ms. Linda K. Walker

2300 5" Ave., North

Apt. 216

Birmingham, AL 35203

Dear Ms. Walker:

The Appeals Council has considered the request for review

of the Administrative Law Judge’s decision issued on June

24, 1997.

Social Security Administration regulations provide that the

Appeals Council will grant a request for review where: (1)

there appears to be an abuse of discretion by the

Administrative Law Judge; (2) there is an error of law: (3)

the Administrative Law Judge’s action, findings, or

conclusions are not supported by substantial evidence; or

(4) there is a broad policy or procedural issue which may

affect the general public interest. The regulations also -

provide that where new and material evidence is submitted

with the request for review, the entire record will be

evaluated and review will be granted where the Appeals

Council finds that the Administrate Law Judge’s actions,

findings, or conclusion is contrary to the weight of the

evidence currently of record (20 CFR 404.970).

The Appeals Council has concluded that there is no basis

under the above regulations for granting your request for

ed

review. Accordingly, your request is denied and the

Administrative Law Judge’s decision stands as the final

decision of the Commissioner of Social Security in your

ase. In reaching this conclusion, the Appeals Council has

considered the applicable statutes, regulations, and rulings

in effect as of the date of this action.

The Appeals Council has also considered the contentions

raised in the material identified on the attached Order of

Appeals Council, but concluded that these contentions do

not provide a basis for changing the Administrative Law

Judge’s decision.

If you desire a court review of the Administrative Law

Judge’s decision, you may commence a civil action by

filing a complaint in the United States District Court for the

judicial district in which you reside with sixty (60) days

from the date of the receipt of this letter. It will be

presumed that this letter is received within five (5) days

after the date shown above unless a reasonable showing to

the contrary is made. The complaint should name the

Commissioner of Social Security as the defendant and

should include the Social Security number(s) shown at the

top of this notice. The right to court review is provided for

in section 205(g) of the Social Security Act, as amended

(42 U.S.C. 405(g)).

If you cannot file your complaint within 60 days, you may

ask the Appeals Council to extend the time in which you

may begin a civil action. However, the Council will only

extend the time if you provide. a good reason for not

meeting the deadline. Your reason(s) must be set forth

clearly in your request.

cc:

Darryl W. Hunt

Charles T. Clark

Sincerely yours,

original signed by

Mark K. Haydu

Appeals Officer

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

ORDER OF APPEALS COUNCIL

In the case of Claim for

Period of Disability

Disability Insurance Benefits

Linda K. Walker Widow’s Insurance Benefits (Disability)

421-58-1072

(Wage Earner) (Social Security Number)

(Leave blank if same as above)

Evidence in addition to that which was before the Administrative

Law Judge has been received by the Appeals Council and is

hereby made a part of the record. That evidence consists of the

following exhibit(s):

Exhibit AC-1 Letter from counsel, dated August 8, 1997

Exhibit AC-2 OHA response notice, dated February 17, 1998

Exhibit AC-3 Brief from counsel, date April 3, 1998

Date: Jan 19, 1999

he

ey

ft

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LINDA WALKER, ENTERED

NOV 4 1999

Plaintiff,

VS. Civil Action No. CV-99-J-0677-S

KENNETH APFEL, COMMISSIONER,

SOCIAL SECURITY ADMINISTRATION,

Defendant.

MEMORANDUM OPINION

This matter is before the court on the record and

briefs of the parties. This court has jurisdiction pursuant to

42 U.S.C. § 405.

Procedural Background

The plaintiff filed application for disabled widow’s

insurance benefits (DWIB) and Supplemental Security

Income (SSI) on March 8, 1994 (R. 79-81, 89-91) in which

she alleged that her disability began January 1998 due to

spastic colon and depression (R. 80, 89, 123). The

applications were denied (R. 82-84, 92-93). The plaintiff

filed a request for reconsideration (R. 85) which was also

denied (R. 87-88, 94-99). Plaintiff timely requested a

hearing before an Administrative Law Judge (“ALJ”) (R.

32-34). A hearing was held in front of an ALJ on

November 27, 1995 (R. 37-58). Before the ALJ had issued

a decision, a “Notice to Claimants who had a Hearing

RT he Oe Pek ha

before Enactment of Public Law 104-121” was sent to

plaintiff on September 17, 1996 (R. 29-30).' A

supplemental hearing was held before the ALJ on April 2,

1997 (R. 59-78). After the hearings the ALJ entered an

opinion finding that the plaintiff was disabled under

Sections 202(e) and 223 of the Social Security Act,

respectively, but would not be disabled id she stopped

engaging in drug abuse (R. 22). Therefore the ALJ found.

the plaintiff ineligible for disabled widow’s benefits based

on disability under Public Law 104-121. ’

The plaintiff requested administrative review of the

ALJ’s decision by the Appeals Council (R. 8-9). Plaintiff

submitted a brief to the Appeals Council (R. 365-369). The

Appeals Council denied plaintiff's request for review

January 19, 1999 (R. 5-6). The ALJ’s decision thus

became the final order of the Commissioner of Social

Security. See 42 U.S.C. §405(g). This action for judicial

review of the agency followed on March 22, 1999 (doc. 1).

The plaintiff argues that the final decision of the ALJ failed

to properly apply the correct legal standards and that the

decision of the ALJ and that of the Appeals Council are not

supported by substantial evidence (doc. 1).

' Public Law 104-121 provides that if drug

addiction and/or alcoholism is a contributing factor

material to the determination that an individual is disabled,

that individual is not eligible for, or entitled to, disability

benefits. See also 20 C.F.R. §404.1535 and 20 C.F.R.

§416.935.

* See 42 U.S.C. §423(d)(2)(C).

" " . apccabsins Dias sia papeaso es nEeeRe sf hey PR s ag OR : AE ND oe * * A

* SO we eee AONE awit ee pais ant eaicenl Pe : his 8 ia =

ACTA tae pa enteral ie -

ATE Setar pm

The Court has considered the record and the briefs

of the parties and for the reasons set forth herein, the

decision of the Commissioner is AFFIRMED.

Factual Background

The plaintiff was born November 19, 1942 (R. 42).

She completed 10" grade in school, but obtained her GED

(R. 43). She has not worked for 28 years prior to the

second hearing (R. 64). She was married to Wayne Walker

who died December 18, 1993. Mr. Walker owned a floor

sanding business and died fully insured (R. 43). The

plaintiff claims that she is unable to work due to a Spastic

colon, difficulty eating or keeping food down, stress, bad

nerves, and problems concentrating and with her memory

(R. 45-48, 53, 65, 66, 70). When asked by her attorney if

she would be able to handle a regular job, which required

answered: “I, I don’t think so, because I’ve always been,

like I say, I’ve always been this way and everything. It

seems like, maybe, my age or something is, is, is, you

know, as years to come on, it, it, it gets worse, and, and |

just don’t feel like I’d be able to carry it down. | might last

a week or so, but... [BJut I think I’d probably get nervous

a time or two, or something and then do something, and

they just wouldn’t, just couldn’t, couldn’t use somebody

like that, you know” (R. 71).

The plaintiff testified that she has abused

Prescription drugs and alcohol for 30 years prior to 1992

maintenance program (R. 73). Plaintiff testified that she

has been off drugs and alcohol since then, Plaintiff likes to

PAE A bi. LENA a IRE APP a

ner snieanaeei oe 8

draw as a hobby, but does not have the materials to pursue

that hobby (R. 73-74). She testified that she does her own

housework (R. 73).

The medical evidence establishes that plaintiff has

been a patient of Dr. B. E. Blankenship, a psychiatrist,

since 1996 (R. 252). At that time, Dr. Blankenship was in

psychiatric residency at University Hospital, and plaintiff

was admitted for “overdose of medication while acutely

intoxicated with alcohol” (R. 252).’ Dr. Blankenship’s

records reflect that plaintiff would seek prescription

medications in order to cope with the stress in her life. The

records further reflect that medications such as Darvocet

and Ritalin were liberally dispensed to plaintiff by Dr.

> This information is contained in an evaluation

performance by Dr. Blankenship on July 7, 1970. The

same evaluation further notes: “Today the patient tells me

that she is “drinking too much” and denies taking pills at

the present time.... Patient recalls being hospitalized at

Bryce in 1964.... Patient was hospitalized in 1968 for an

overdose of medication...in an apparent similar episode to

the one in which I manage her in 1966.... The patient’s

mother has been’ under treatment...and was

hospitalized...for dependence and/or addiction to

medication. Her father is a former alcoholic” (R. 252-253).

The medical records of Dr. Blankenship which were

considered by the ALJ, reflect that plaintiff has suffered

from emotional problems and stress due to various factors

such as failed or rocky marriages, a husband who gambled,

loss of custody of her two oldest sons, a child who is HIV

positive, a dysfunctional relationship with her mother and

her husband’s brother, financial problems such as utilities

being terminated for lack of payment, automobile

accidents, teeth problems, and cats dying” (R. 180-264).

Blankenship (R. 180-264). There are several notations in

the medical records that plaintiff would “loose” her

Prescription for Darvon, Darvocet, Restoril and Valium,

and an “ok” was given to the Pharmacy to fill the

prescription anew (R. 198, 199, 206, 207, 220, 227, 230,

232, 236).

The medical records of Miles E. Gresham, M.D.,

also reflect that plaintiff suffers from food dysphagia,

diarrhea and cramping (R. 147-148).

Plaintiff began a drug free program with Methadone

treatment at Tri County Methadone Clinic in October of

1992 (R. 304). She transferred to The University of

Alabama in Birmingham Substance Abuse and Methadone

Clinic in October of 1995 (R. 292-319).

Dr. Carmen Vargo-Moncier, Licensed Psychologist,

performed a consultative examination of plaintiff on April

20, 1994 (R. 154-156). Plaintiff reported to Dr. Vargo-

Moncier that she had been a patient of Dr. Blankenship

since her early twenties, that she would usually see him

once a month, and that she had been a patient in

Brookwood Hospital for psychiatric problems “bunches of

times” (R. 154).

a

* The Court notes that plaintiff was given

innumerable Prescriptions for Darvon and Darvocet during

the period of time she was under Dr. Blankenship’s care (R.

180-208). These medications are prescribed for relief of

mild to moderate Pain, Physicians Desk Reference, 1999

Edition at 1567-1574. However, only in very few instances

do the records reflect that plaintiff suffered from any pain

(R. 180-208).

She also reported alcohol dependence and

polysubstance abuse, but claimed that had ceased since she

began her Methadone treatment program (R. 154). When

describing her daily activities to Dr. Vargo-Moncier,

plaintiff reported that she gets up at seven-thirty or eight o’

clock every morning and tends to her own hygiene and

grooming. She attends Methadone Clinic three times a

week. She performs her own household chores and may

also help her mother do her house cleaning. Plaintiff visits

family, watches TV, and reads newspapers, books and

magazines. She goes to bed between five and eight-thirty

p.m. and reported erratic sleep patterns. In the mental

Status examination, Dr. Vargo-Moncier noted that plaintiff

appeared on time for the appointment well-groomed. She

did not suffer from hallucinations, delusions or obsessions,

and other than not liking to be strapped in a seat belt, she

also did not suffer from ant phobias and compulsions. Dr.

Vargo-Moncier noted that plaintiff's speech was rapid and

over productive. Plaintiff's affect was described as broad

with somewhat labile features, fluctuating from sad to

laughing, but content related. Her mood was described as

anxious, but she denied current suicidal ideation or intent.

Plaintiff was noted as having minimal insight into her

present condition (R. 155). Although plaintiff's

concentration showed slight impairment, her ability to

make and understand abstractions showed that it was intact.

Her fund of general knowledge was found to be good,

although her attention span was somewhat impaired.

Plaintiff's intellectual functioning was estimated to be in

the borderline to average range. Plaintiff was noted as

possessing poor judgment (R. 156).

A consultative examination was performed by Dr.

Robert Walton, M.D., on plaintiff July 20, 1994 (R. 159-

160). At that time plaintiff complained of spastic colon,

— a ae Te

saa PERNA SAR ES inn '

He also noted that 4 major component is depression,

anxiety, drug dependency, Probable history of esophageal

movement of holding a Cup or glass or dressing herself and

utilizing buttons (R. 159),

Plaintiff was treated at the University of Alabama in

Birmingham Substance Abuse and Methadone Clinic

(“UAB”) from October 18, 1995 until March 31, 1997,

functions were intact. Her judgments were reality based

and realistic for Present and future goals: She denied

current suicidal, homicidal or hallucinatory experiences (R.

305). Plaintiff indicated to UAB that she had taken

Valium, Ritalin, pain killers, anti-depressants and “many

more” medications in the past (R. 314). She also Stated that

she suffered from a spastic colon, esophageal rupture,

Psoriasis, nerves and hypertension (R. 307).

On June 21, 1996, the plaintiff entered UAB

Community Psychiatric Program ‘with her chief complaint

being “nerves so bad” and as recent stressors she listed

“recently moved”, $ (R. 334). Her mental Status

¢xamination at that time revealed that she was of Clean

appearance, her demeanor Was Cooperative and engagable,

her speech was of normal rate, rhythm and latency, she was

slightly agitated, her mood was euthymic, her affect full

range, congruent to content. Her thought process was goal

directed and she was without suicidal or homicidal

ideation, intent or plan, and without delusions, abdsessions

and disturbance of thought (R. 337). Dr. Robert Savage,

Clinical Psychologist, reported his evaluation of plaintiff on

August 1, 1996 (R. 328-332). He reported plaintiff's

current medications as Methadone and Reglan. She also

reported to him that she had been taking over-the counter

sleeping pills four times per day (R. 328). Her chief

complaint was “money and this depression came up.”

Plaintiff attributed her financial problems to unemployment

and lack of “SSI” benefits (R. 328). She reported that she

had been approved for and used Methadone since 1992.

Regarding her “depression,” plaintiff reported that she took

a sleeping pil! which decreased her depression. She stated

that the symptoms of her depression including having “no

joy,” feeling empty and unhappy, “feeling like a pain” and

having trouble concentrating (R. 328-329). The plaintiff

denied experiencing manic symptoms, but did complain of

nervousness, worry, racing heart, butterflies, and feeling

like “I’m in a hurry” lasting for about five minutes. She

reported that she has “shaky spells” and being weak kneed

which occurred every six weeks. She finally reported some

memory problems such as losing her keys, “having to write

things down” and getting lust while driving (R. 329).

Dr. Savage administered the following tests: the

Shipley Institute of Living Scale, subtests of the WMS-R,

MMPI-2, and MCMI-II. On the Shipley test, plaintiff

earned an estimated WAIS-R Full Scale IQ Score of 106.

Dr. Savage described that as a score solidly within the

average range of intellectual functioning. Plaintiff scored

in the 70" percentile for vocabulary skills and at the 88"

o + = eer?)

ce

percentile for abstract reasoning abilities. The results of the

WSM-R testing were consistent with her IQ score of 106

except for the visual memory score which was significantly

lower. Dr. Savage opined that plaintiff's overall memory

functioning was Suggestive of mild alcohol related

impairment (R. 330).

MMPI-2 in an honest and Straightforward manner. The

results indicated that she was feeling sad, that she had

problems with concentration, memory and attention. It

indicated decreased physical activity, low energy, somatic

complaints, and feelings of being nervous and worried. Dr.

Savage stated that plaintiff felt socially inadequate and

tended to avoid social involvement. He opined that

plaintiff has learned to tolerate a great deal of unhappiness,

and has limited insight into the causes of her difficulties (R.

330).

Mood Disorder; Opiod Dependence (by history); Alcohol

Dependence, in sustained full remission (by history):

Sedative Dependence: Dependent Personality Disorder

(with avoidant and borderline traits); Seizure disorder,

esophageal ulcer, and financial problems, widowed and

divorced, living alone, unemployed (R. 33] ).

Dr. Savage concluded with the following summary

and recommendations: “Currently, a thought disorder is

not evidenced. However, a depressive mood disorder, most

likely substance induced, is apparent on psychological

testing.” [Plaintiff] was diagnosed with Dependant

Personality Disorder, with avoidant and borderline features

(R. 331). Dr. Savage did not recommend antidepressants

medication unless. plaintiffs depressive symptoms

worsened. He recommended plaintiff participating in

AA/NA, that she continue treatment at UAB Methadone

Clinic and that she increase drug-free pleasurable activities

(R. 332).°

The records from UAB psychiatric clinic of August

7, 1996 reflect that plaintiff complained of being depressed.

The records further reflect, that upon further delving, she is

“mostly anxious and upset because her disability check is

hung up in the system — she agrees with this.” Dr. Feldman

stated “I continue to feel she doesn’t have bad

depression.... Have asked Jim Ledbetter to spend time

today helping her negotiate system re: her disability check”

(R. 325). Jim Ledbetter’s notes from the same day reflect

as follows: “Patient seen this afternoon per request of Dr.

Feldman. Patient clean, casually dressed, fidgety and

restless talking about how her attorney’s will give her no

definite word on the status of her SSDI, SSI appeal. She is

upset that she has not gotten a check. Offered patient

Support and encouraged her to maintain contact with the

attorney and to follow up with her care with Dr. Huggins

and for her physical problems at Cooper Green. She

realizes her getting disability on the basis of her past and

present Methadone use will be chancey but she has been

> Dr. Savage also recommended a neurological

evaluation due to plaintiffs history of head injury, reported

seizures and possible CVA (R. 332). The court notes that

plaintiff did not list these possible infirmities as causes for

her alleged disability nor did she testify to these at the

hearing before the ALJ.

led to believe about two years of checks will-be available

for her” (R. 324).

Dr. Feldman’s notes of June 21, 1996 reflect that

plaintiff wants help getting disability, but that his

impression is that she is not disabled (R. 338).

The records from Cooper Green Hospital reflect

that plaintiff was diagnosed with chronic esophagitis,

diverticular Outpouchings and some reflux in

November/December of 1996 (R. 278, 280, 352-353). On

follow up visit in February 1997 plaintiff stated that her

condition had remained the same, not worse. It was noted

that she was regurgitating food and gaining weight. She

was continued on Reglan, Axid and Adalat (R. 352).° On

March 26, 1997, Dr. Carmichael noted in the record “54

year old white female patient at Methadone Clinic looking

for help with getting psychiatric disability. Patient of Dr.

Blankenship x 30 years. Patient does have diagnosis of

depression. Patient could benefit from a prescription for

depression — encouraged to discuss with M. Hutgins at

Methadone Clinic” (R. 349).

However, at the second hearing before the AI.J on

April 2, 1997, plaintiff testified “as long as I’m on

methadone, I’m doing good” (R. 69). Upon being asked

what other kind of problems she has which would keep her

from working, she testified: “Well, just, I have the same

problem I’ve had all my life, like panicking and not being

able to remember, and, and stuff like that” (R. 70). She

never testified that she was depressed.

* These medications are for gastroesophageal reflux,

ulcers, esophagitis, and hypertension. See Physicians Desk

Reference, 1999 Edition, p. 2643, 1565 and 637.

A consultative examination was performed by Dr.

Edward Shehi on April 7, 1997 (R. 342-347). Plaintiff

arrived on time for the interview, was adequately attired,

but her hygiene was noted to be disheveled. Her speech

was accelerated and loud, but no loose associations or

confusion were noted. She was extremely anxious with

tremors in hands, extremities and throughout her entire

body. Her mood was depressed. She described that she

had a low energy level, and was nervous and anxious

around others, especially those she did not know. She

reported being forgetful and reported thoughts of self-harm.

However, Dr. Shehi noted no hallucinations, delusions,

ideas of reference, phobias, obsessions, or compulsions (R.

344). When describing her daily activities to Dr. Shehi,

plaintiff stated that she does her own housework and her

own laundry, as well as her mother’s. She cooks one meal

per day. She occasionally drives. She does her own

shopping. She listens to music and stated that her

television is on all the time although she only watches it

two to two and one-half hours a day. She has a visitor in

her home twice a month. The only visiting she does is to

the Methadone Clinic, but she does attend church once or

twice per month. She has no real hobbies, and goes to bed

between seven and seven-thirty at night. She sleeps four to

tour and one-half per night and naps three to four times per

week for a period of one hour. Dr. Shehi noted that

plaintiff displayed fair insight regarding her condition, that

she would have no difficulty making acceptable work

decisions and would be able to manage financial affairs if

awarded monetarily. He diagnosed plaintiff with Major

Depression, Recurrent with Generalized Anxiety Features

and Polysubstance Abuse (R. 345).

Dr. Shehi filled out a Residual Functional Capacity

Questionnaire and noted that plaintiff would have

“marked” restrictions and limitations in her ability to

function on a sustained basis in a routine work setting or

elsewhere (R. 346-347).

At the first hearing before the ALJ a vocational

expert (“VE”), Dr. David Head was asked if a person of

plaintiff's age, education and work experience could do

light work, and if she had a moderate impairment in

cleaning; companion/sitter; assembly type jobs, wrapping

and packaging and Jobs in the security guard industry (R.

54). Dr. Head also testified that if a person has a marked

impairment in responding to work Pressures, she would not

be able to work (R. 55).

getting along with co-workers and Supervisors, and

understanding, Carrying out and remembering instructions,

Sustaining persistence, and concentrating in a work : °tting;

would there be any jobs she could do. The VE testified

cleaning jobs, light cleaning of office buildings and such.

The estimated number of jobs would be 2000 in the North

Central Alabama area. There were other jobs such as

central supply jobs in hospitals, combining and putting

together trays, bench work type jobs such as inspecting and

sorting (R. 75). The VE testified that these jobs would be

8-hour jobs of any 40-hour-a-week jobs (R. 75-76). The

VE also testified that if plaintiff had more than a moderate

impairment, aside from a history of drugs, she would not be

able to do any of those jobs (R. 76).

Upon examination by plaintiff's attorney, the VE

testified that if plaintiff had problems with anxiety, rapid

speech and minimal awareness of interpersonal impact on

others, and resulting general poor judgment, and thus a

marked impairment on her ability to make decisions in

judgment, that she would not be able to work (R. 76). If

she had marked impairment in her ability to withstand

ordinary work pressure, she would not be able to do any

work at all (R. 77).

Standard of Review

The initial burden of establishing disability is on the

claimant, who must prove that due to a mental or physical

impairment he is unable to perform his previous work. If

the claimant is successful the burden shifts to the

Commissioner to prove that the claimant can perform some

other type of work existing in the national economy.

Walker v. Bowen, 826 F.2d 996, 999 (11 Cir.1987).

This court’s review of the factual findings in

disability cases is limited to determining whether the record

contains substantial evidence to support the ALJ’s findings

and whether the correct legal standards were applied. 42

U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401,

91 S.Ct. 1420 (1971); Wolfe v. Chater, 86 F.3d 1072, 1076

(11" Cir.1996); Martin y. Sullivan, 894 F.2d 1520, 1529

(11 Cir.1990). “Substantial evidence” is more than a

scintilla, but less than a preponderance. It is generally

defined as “such relevant evidence as a reasonable mind

would accept as adequate to Support a conclusion.”

Richardson, 402 U.S. at 401 (quoting Consolidated Edison

Co. v. NLRB, 305 US. 197, 229, 59 S.Ct. 206 (1938));

Miles v. Chater, 84 F.3d 1397 (11" Cir.1996); Bloodsworth

v. Heckler, 703 F.2d 1233, 1239 (11" Cir. 1983).

(11™ Cir, 1987). “Even if the Court finds that the evidence

weighs against the Commissioner’s decision, the court must

affirm if the decision is supported by substantial evidence.”

Allen v. Schweiker, 642 F.2d 799, 800 (5 Cir.1981); see

also Harwell v. Heckler, 735 F.2d 1292 (11" Cir. 1984);

Martin v. Sullivan, 894 F.2d 1520 (11" Cir. 1990).

This court must also be Satisfied that the decision of

the Commissioner is grounded in the proper application of

the appropriate legal standards. McRoberts y Bowen, 841

F.2d 1077, 1080 ri Cir. 1988); Bridges y. Bowen, 815

F.2d 622, 624 (11" Cir. 1987); Davis vy. Shalala, 985 F.2d

528 (11" Cir.1993), However, no such presumption of

Correctness applies to the Commissioner’s conclusions of

law, including determination of the proper standard to be

applied in reviewing claims. Brown vy. Sullivan, 921 F.2d

1233, 1235 (i1" Cir.1991); Cornelius y Sullivan, 936 F.2d

1143, 1145 (11 Cir.199] ). Furthermore, the

Commissioner’s “failure to ... provide the reviewing court

with sufficient reasoning for determining that the proper

legal analysis has been conducted mandates reversal.”

Cornelius, 936 F.2d at 1145-1146.

Widsakcnt tbe

Regulations promulgated by the Commissioner

establish a five part sequential analysis to arrive at a final

determination of disability. 20 C.F.R. § 416.920(a)(f). The

ALJ must first determine whether the plaintiff is presently

employed. If so, a finding of non-disability is mandated

and the inquiry ends. 20 C.F.R. § 404.1520(b). Second,

the ALJ must determine whether the plaintiff suffers from a

severe impairment or combination of impairments. If not, a

finding of no disability is made at this point and the inquiry

ends. 20 C.F.R. § 404.1520(c). Next, the ALJ must

compare the plaintiff's severe impairments to those in the

listings of impairments. 20 C.F.R. § 404.1520(d). Step

four requires a determination of whether the impairments,

alone or in combination, prevent the plaintiff from

performing his past relevant work. If so, prima facie of

disability is established and the burden of going forward

with the evidence shifts to the Commissioner to show, at

step five, that other work exists in the national economy

that the plaintiff is able to perform. 20 C.F.R. §

404.1520(e)(f).

Because a hearing before an ALJ is not an

adversary proceeding, the ALJ has a basic obligation to

develop a full and fair record. Graham v. Apfel, 129 F.3d

1420, 1422-23 (11" Cir.1997). See also Wilson v. Apfel,

179 F.3d 1276 (11™ Cir.1999).

Legal Analysis

In the case before the court, the ALJ determined

that the plaintiff was an unmarried widow, who at the time

of the hearing was fifty-four (54) years old, thus being an

individual closely approaching advanced age (R. 20). He

correctly found that she had no past relevant work, given

that she had not worked for the past twenty-eight years (R.

substance abuse/dependence, dependent personality, and

Substance induced mood disorder. The ALJ found that

plaintiff s impairments, when considered in combination,

neither met nor were medically equivalent to any

impairment listed in Appendix 1 to Subpart Plaintiff, 20

C.F.R. Part 404. He found that plaintiffs drug

pressures, and thus, prevented her from performing work at

the light exertional levels. To the extent that plaintiff

claimed to be more severely impaired than this, by her

impairments other than drug abuse/dependence, the ALJ

found that her testimony was inconsistent with and less

credible than the medical evidence of record (R. 21-22),

The ALJ found that plaintiff s impairments, other than her

other than Methadone (doc. 3 at p. 6). In support of this

argument, plaintiff states that if she stopped taking

| Methadone, there would be a much greater likelihood that

she would return to illicit drug use, than that she would not

be disabled (doc. 3 at p. 8). Contrary to what is maintained

by plaintiff, the fact that plaintiff is likely to return to illicit

drug use if she were not on a Methadone maintenance

program directly supports the ALJ’s finding. The medical

records reflect plaintiff's thirty years abuse of drugs and

alcohol. They reflect she was placed on the Methadone

maintenance program in order to withdraw from and not

return to such substance abuse. Plaintiff herself testified

that she was still attending the Methadone Clinic on

medical advise and that she was doing “good” as long as

she was on her Methadone (R. 69). Methadone is the

medication used to _ control plaintiffs drug

abuse/dependence. Fven Dr. Shehi, the psychiatrist to

whom plaintiff was referred by her attorney for consultative

examination, recommended that plaintiff continue

counseling at the UAB Methadone Clinic (R. 345). In light

of plaintiff's continued need tor Methadone, the ALJ

properly found that she still remained with a dependence to

the drugs.

Next plaintiff contends that the ALJ erred in failing

to find depression and anxiety as severe impairments (doc.

3 at p. 8). In support of this argument, plaintiff argues that

the medical records reflect that plaintiff has always had

problems with panic attacks, anxiety, lack of concentration

and depression (doc. 3 at p. 9). The plaintiff is correct that

plaintiff's complaints of anxiety, depression and panic

attacks are long standing (R. 70). However, the record

reflects that plaintiff's depressive mood disorder is most

a

i nieniaitennlinapiinenitcinuans ee ca ee

likely substance induced (R. 331, 345)’. This conclusion

is further supported by the plaintiff's list of medications

The court notes that Dr. Savage, in his

Recommendation Number 4 for plaintiff, actually

associates plaintiff's symptoms of depression with her use

of drugs in that he recommends “Increase drug-free

pleasurable activities He did not Prescribe an anti-

depressant medication for plaintiff but rather Stated that he

would consider Prescribing such, if the depressive

symptoms worsen (R. 332 ).

* The records also reflect that plaintiffs complaints

of this type are not of @ continuous nature. She reported to

Dr. Savage that her nervousness, worry, racing heart and

butterflies last for 5 minutes and that her Shaky spells occur

every 6 weeks (R. 329).

supporting the ALJ’s conclusion that plaintiff's depression

is related to her substance abuse and not a separate severe

impairment. This court must affirm the Commissioner’s

decision if it is supported by substantial evidence, Allen v.

Schweiker, 642 F.2d 799, 800 5" Cir.1981); see also

Harwell v. Heckler, 735 F.2d 1292 (11" Cir.1984) and

Martin v. Sullivan, 894 F.2d 1520 (11™ Cir.1990).

Next the plaintiff contends that the ALJ erred in

failing to find disability under Medical Vocational Rule

202.04 (doc. 3 at p. 9). Pursuant to 20 C.F.R. Part 404,

Subpart P, App. 2, Rule 202.02, a person of advanced age,

with a high school degree (or its equivalency) who is either

unskilled or has no past work experience is disabled.” The

plaintiff argues that the age category stated in Rule 202.04

should not be applied mechanically, citing Reeves v.

Heckler, 734 F.2d 519, 525-526 (11™ Cir. 1984). Reeves

held that “Under the statutory scheme, once a claimant has

proved that he can no longer perform his past relevant

work, the burden shifts to the Secretary to prove that

claimant can perform substantial gainful activity that exists

in the national economy.... In discharging this burden the

Secretary may use the age factor as applied in the grids as

evidence of the claimant’s ability to adapt to new work

environment, but this age factor shall not be conclusive. If

the claimant then proffers substantial credible evidence that

his ability to adapt is less than the level established under

the grids and must instead establish the claimant’s ability to

adapt to a new work environment by independent

evidence.” Jd. At 525.

* A person of advanced age is defined by the

regulations as a person 55 years old or older.

It is noted by the court that the medical treatment

records for plaintiff's physical condition fail to reveal that

she has any physical limitations to performing work-related

activity (R. 147-148, 151-153, 157-158, 161-164, 176-179,

270-272, 278-291, 351-362). Absent plaintiff's substance

abuse, the record merely shows that plaintiff was limited to

a range of light work with moderate limitations in the

ability to relate to co-workers and Supervisors, and in

understanding, remembering, carrying out instructions

while sustaining concentration in a work setting (R. 70-71).

Dr. Shehi was the only health care professional who opined

that plaintiff had marked restrictions and limitations in her

ability to function on a sustained basis in a routine work

Setting (R. 346-347). However, Dr. Shehi also found that

plaintiff would have no difficulty making acceptable work

decisions (R. 345). The ALJ did exactly what is mandated

by Reeves. To meet that burden the ALJ elicited vocational

expert testimony at the hearings, in particular the

supplemental hearing, where the VE testified that there

were a significant number of jobs that plaintiff could do

given her age, educational level, lack of past relevant work

history and lack of former job skills, and residual functional

capacity in the absence of substance abuse (R. 75). In

addition, Reeves is distinguishable from the case at the bar

in that the ALJ there solely applied the Medical-Vocational

Guidelines to direct findings of not disabled, and no

vocational expert testimony was elicited. Accordingly, the

ALJ properly found that there existed a significant number

of alternative jobs that plaintiff could do, in the absence of

substance abuse.

As stated above, this court finds that sufficient

evidence to support the ALJ’s decision is contained in the

record.

seit _

Therefore, the decision of the Commissioner is

AFFIRMED pursuant to this opinion.

DONE and ORDERED this the day of

, 1999.

Inge P. Johnson

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LINDA WALKER, ENTERED

NOV 4 1999

Plaintiff,

VS. Civil Action No. CV-99-J-0677-S

KENNETH APFEL, COMMISSIONER,

SOCIAL SECURITY ADMINISTRATION,

Defendant.

ORDER

In accordance with the memorandum opinion

entered by the court this day, it is hereby ORDERED by

the court that the decision of the Commissioner is

AFFIRMED.

DONE and ORDERED this the day of

, 1999,

Inge P. Johnson

United States District Judge

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APPENDIX A-4 - JUDGEMENT AND COURT'S

OPINION FROM THE UNITED STATES ELEVENTH

CIRCUIT COURT OF APPEALS BY CIRCUIT JUDGE

BLACK, JUDGE HULL, AND JUDGE MARCUS

ENTERED SEPTEMBER 15, 2000

tt aa et ee a eT RTI NEL TAIT II I ae

- ~ - oo nan ae

United States Court of Appeals

For the Eleventh Circuit

No. 00-10125

Non-Argument Calendar

District Court Docket No. 99-00677-CV-J-S

LINDA K. WALKER,

Plaintiff-Appellai.t

versus

KENNETH S. APFEL, COMMISSIONER OF

SOCIAL SECURITY ADMINISTRATION,

Defendant-Appellee

Appeal from the United States District Court

for the Northern District of Alabama

Before BLACK, HULL AND MARCUS, Circuit Judges.

JUDGMENT

This cause came to be heard on the transcript of the

record from the United States District Court for the Northern

District of Alabama, and was taken under submission by the

Court upon the record and briefs on file, pursuant to

Eleventh Circuit Rule 34-3;

UPON CONSIDERATION WHEREOF, it is now

hereby ordered and adjudged by this Court that the order of

the said District Court appealed from in this cause be and the

same is hereby AFFIRMED;

IT IS FURTHER ORDERED THAT the plaintiff-

appellant pay to the defendant-appellee, the costs on appeal

to be taxed in accordance with Fed.R.App.P. 39.

Entered: September 15, 2000

For the Court: Thomas K. Kahn, Clerk

By:

Deputy Clerk

ISSUED AS MANDATE: DEC 28 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED

NO. 00-10125 SEP 15 2000

Non-Argument Calendar

D.C. Docket 99-00677-CV-J-S

LINDA K. WALKER,

Plaintiff-Appellant

versus

KENNETH S. APFEL, COMMISSIONER OF

SOCIAL SECURITY ADMINISTRATION,

Defendant-Appellee

Appeal from the United States District Court for the

Northern District of Alabama

(September 15, 2000)

Before: BLACK, HULL AND MARCUS, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Linda K. Walker appeals the

district court’s order affirming the Commissioner’s denial of

disability benefits under 42 U.S.C. § 423(a).° Walker’s

benefits were denied pursuant to the Contract with America

Advancement Act of 1996 (the “CAAA”).’ The CAAA

amended the Social Security Act to preclude the award of

benefits when alcoholism or drug addiction is determined to

be a contributing factor material to the determination that a

claimant is disabled. On appeal, Walker argues that the

CAAA should not apply to her because she had stopped

abusing prescription drugs and was only taking methadone

as part of a drug-treatment program. After review, we

conclude that the Commissioner correctly applied the CAAA

to Walker, and we affirm the denial of benefits.

I. BACKGROUND

A. ALJ HEARINGS

On February 28, 1994, Walker filed a claim for

widow's disability insurance benefits on her deceased

husband’s account and for supplemental security insurance,

alleging disability beginning on January 1, 1998. Walker

claimed that she was disabled due to, inter alia, her spastic

colon, depression, and forgetfulness. After the

Commissioner denied her application, Walker received a

° Linda Walker died on October 5, 1999, of

peritonitis. Walker’s mother, Lois Meyers, is entitled as

next-of-kin to any disability benefits through September

1999. See 42 U.S.C. § 404(d)(3); 20 C.F.R. § 404.316.

” Pub. L. No. 104-121, § 105(a)(1), (b)(1), 110 Stat.

847, 852, 853 (codified as amended at 42 U.S.C. §§

423(d)(2)(C) (1997)).

2

hearing before an administrative law judge (the “ALJ”) on

November 27, 1995. Walker requested a supplemental

hearing after she received notice that Congress had passed

the CAAA, and that it may be applicable to her case. Walker

received a supplemental hearing on April 2, 1997.

At the time of her supplemental hearing, Walker was

fifty-four years old. Walker’s second husband died on

December 18, 1993. Walker testified that she had completed

the tenth grade, but that she later obtained her GED. Walker

stayed home to raise three children, and had not worked

outside the home in the last twenty-eight years. Walker did

her own housework and assisted her mother with her

housework. Over the course of both hearings, Walker

testified that she had a spastic colon and, because of her

esophagus, she had problems keeping her food down.

Walker also suffered from forgetfulness and panicked in

stressful situations. Walker admitted to alcohol and

Prescription drug abuse “for a lot of years,” but stopped the

drug use when she started a methadone-treatment program in

1992. Walker stopped drinking just after her husband died in

1993. She testified that she had no side effects from the

methadone.

Dr. William A. Crunk, Jr., a vocational expert (the

“VE”), testified that a person who was capable of light work

and had moderate impairments in (1) getting along with

others, (2) understanding, Carrying out and remembering

instructions, and (3) sustaining persistence, and

concentrating in a work-setting, could find jobs in service

industries like laundry and Cleaning. Dr. Crunk Stated,

however, that if any of the claimant’s impairments were

more than moderate, she would not be able to perform these

jobs. Dr. Crunk concluded that if Walker suffered from poor

judgment, or if she had marked impairment in her ability to

3

ee ee ee ee Ce ee ee ee oe = sen ox ni "

withstand ordinary work pressure, she would not be able to

work.

B. Medical Evidence

Walker presented approximately thirty years of

medical records. Because the issues in this appeal focus on

Walker’s mental-health conditions and do not address her

physical ailments, we will recount only the records of

doctors who addressed Walker’s mental condition.

Dr. B.E. Blankenship, M.D., a treating psychiatrist,

hospitalized Walker in 1966 for an overdose of medication

while acutely intoxicated; in 1976 for anxiety, depression,

and hysterical personality; in 1978 for an episode Walker

thought was a grand mal seizure; and several times in 1979

and 1981 for recurrent mood depression. Dr. Blankenship

diagnosed Walker with having adjustment reaction to adult

life, anxiety-depressive syndrome, hysterical-dependent

personality, and emotional immaturity.

After a 1979 consultation, Dr. Richard Allison

diagnosed Walker with a mixture of depressive and anxiety

neurosis with somatic sensitivities and personality structure

basically dependent with significant hysteroid (resembling

hysteria) features.

* Dr. David W. Head, a VE, testified similarly at

Walker’s first hearing. Dr Head concluded that if a person

having Walker’s characteristics had a thirty-year-plus history

of anxiety, depression syndrome resulting in a moderately

severe impairment of ability to withstand work pressure, and

poor judgment, she would not be able to work.

4

Several doctors saw Walker since her January 1988

alleged disability onset date. Dr. Carmen Vargo-Moncier,

Ph.D., a psychologist, saw Walker in April 1994 and

diagnosed her with nicotine, alcohol, and polysubstance

abuse. Dr. Vargo-Moncier noted that Walker also suffered

from arthritis, spastic colon, and migraine headaches, and

concluded that Walker had “poor judgment.” Dr. Robert A.

Walker, M.D., an internist, concluded in a 1994 disability

determination that Walker’s “major component is

depression, anxiety, drug dependency, probable history of

esophageal spasm and/or esophageal ring.”

Dr. F.A. Breslin, a psychologist, evaluated Walker on

August 8, 1995, and concluded that she suffered from an

Organic mental disorder and substance-addiction disorder,

Le., behavioral changes associated with the regular use of

substances that affect the central nervous system. Dr.

Breslin indicated that Walker could follow simple tasks but

not detailed ones, and that she should limit contact with

coworkers and the public. Dr. Breslin concluded that none

of Walker’s functional limitations Satisfied the listings of

impairments.

Dr. Robert Savage, a clinical psychologist, performed

a psychological evaluation of Walker in July 1996. Dr.

Savage diagnosed Walker as having, inter alia, a depressive

mood disorder that was most likely substance-induced,

alcohol dependence in Sustained full remission, sedative

dependence, and dependent personality disorder. However,

Dr. Savage did not recommend treatment for her mental-

health conditions. Instead, he concluded: “If depressive

symptoms worsen, consider Prescribing an antidepressant

medication.”

NANA Ol Ne Nel

Dr. L. Edward Shehi, a psychiatrist, examined

Walker in April 1997. Dr. Shehi diagnosed Walker with

major depression with generalized anxiety features, but

concluded that she “would have no difficulty making

acceptable work decisions.”

¢.. The ALJ’s Decision

In his June 28, 1997, decision, the ALJ found Walker

disabled. However, pursuant to the CAAA, the ALJ denied

Walker’s request for benefits because he determined that her

drug abuse was a contributing factor material to the

determination that she was disabled. The ALJ found that

Walker had the following medically determinable

impairments: dysphagia (difficulty when swallowing),

hypertension, substance abuse/dependence in that she is

currently in Methadone treatment, dependent personality,

and substance induced mood disorder. The ALJ found that

Walker met only Listing 12.09 addressing drug abuse:

“(Walker] has no impairment, other than her drug

abuse/dependence, which meets the criteria of any of the

listed impairments. When all of [Walker’s] impairments are

considered together, her drug abuse/dependence, in that she

is currently in Methadone treatment, is material to the

determination of [her] disability within the meaning of [the

CAAA]... as her impairments other than her drug

abuse/dependence, when considered in combination, do not

prevent her from performing work.” Additionally, the ALJ

found that Walker’s subjective statements concerning her

impairments were not credible in light of the discrepancies

between her assertions and the evidence in the record.

The ALJ concluded that Walker could perform light

work with only moderate limitations in relating to coworkers

and supervisors, and in understanding, remembering, and

6

carrying out instructions in a work setting. The Appeals

Council denied Walker’s request for review, and thus the

ALJ’s decision became the Commissioner’s final decision.

D. District Court

On March 22, 1999, Walker filed a complaint for

judicial review in the district court. Before the district court,

Walker argued (1) there was no evidence in the record

establishing that she engaged in any drug use other than

methadone, and accordingly, the ALJ erred ix finding that

she would not be disabled if she stopped taking methadone,

(2) the ALJ erred in failing to find depression and anxiety as

severe impairments, and (3) the ALJ erred in failing to find

disability under Medical-Vocational Rule 202.04. The

district court affirmed the ALJ’s decision, and Walker timely

appealed.

II. STANDARD OF REVIEW

This Court reviews the Commissioner’s decision to

determine whether substantial evidence supports the ALJ’s

factual findings and to ensure that the ALJ applied the

correct legal analysis.’ See Graham v. Apfel, 129 F.3d 1420,

1422 (11" Cir. 1997). Substantial evidence is such relevant

evidence as a reasonable mind might accept as adequate to

Support a conclusion. See Falge v. Apfel, 150 F.3d 1320,

1322 (11 Cir. 1998), cert. Denied, 525 U.S. 1124 (11" Cir,

. When, as in this case, the ALJ denies benefits and

the Appeals Council denies review, we review the ALJ’s

decision as the final decision of the Commissioner. See

Falge v. Apfel, 150 F.3d 1320, 1322 (11™ Cir. 1998), cert.

Denied, 525 U.S. 1124 (1999).

7

| eras

1999). In other words, substantial evidence is “more than a

mere scintilla.” Id.

Ill. DISCUSSION

An award of disability benefits involves a five-step

process. The claimant must show that (1) she is not

gainfully employed, (2)-she is severely impaired, and (3) her

impairment meets or equals a listed impairment. If the

claimant makes those showings, she is considered disabled.

- See 20 C.F.R. § 404.1520. If the claimant’s impairment does

not meet or equal a listed impairment, she must continue to

show that (4) she cannot do past relevant work. If the

claimant establishes that she cannot do past work, then (5)

the Commissioner may show that the claimant can do work

based on her residual functional capacity. If the

Commissioner cannot show this, the claimant is considered

disabled. See, 20 C.F.R. § 404.1520; see also Reeves v.

Heckler, 734 F.2d 519, 525 (11™ Cir. 1984).

Nevertheless, if a claimant is found disabled and ~

there is evidence of drug or alcohol addiction, she is not to

benefits if her drug or alcohol addiction was a “contributing

factor material” to the determination that she is disabled.

See 42 U.S.C. § 423(d)(2)(C) (as amended by the CAAA);

see also 20 C.F.R. § 404.1535 (same). To determine the

materiality of the drug or alcohol abuse, the ALJ must decide

what limitations would remain absent the drug or alcohol

abuse. 20 C.F.R. § 404.1535 (same). To determine the

materiality of the drug or alcohol abuse, the ALJ must decide

what limitations would remain absent the drug or alcohol

abuse. See 20 C.F.R. § 404.1535. The key factor the ALJ

examines in determining whether drug addiction or

alcoholism is a contributing factor material to the

determination of disability is whether the claimant would

8

still be found disabled if she stopped using drugs or alcohol.

20 C.F.R. § 404.1535(b)(1).

A. THE CAAA’s Applicability to Walker’s

Methadone Treatment. |

On appeal, Walker argues that the ALJ erred in

analyzing her case pursuant to the CAAA. Walker

emphasizes that she had stopped using prescription drugs in

1992 and alcohol in 1993. At the time of the hearings,

Walker claims that the only substance she was -using was

methadone, which was prescribed by a doctor as medical

treatment for her drug addiction.

We conclude that the ALJ correctly applied CAAA in

Walker’s case. Walker’s doctors Prescribed methadone as

treatment for her prescription drug abuse. Simply Stated,

Walker’s prescription drug abuse necessitated her methadone

treatment, and thus her benefits were denied.. -Walker’s

Prescription drug abuse was therefore a “contributing factor

material” to the determination that she was unable to work.>

42 U.S.C. § 423(d)(2)(C). Thus, we conclude that the ALJ

Properly applied the CAAA to Walker’s case.

> Because the ALJ determined that Walker met only

the Listing of Impairment applicable to drug abuse, Walker

would not have been disabled (unable to work) initially if not

for her continuing drug-abuse treatment. See 20 C.F.R. Pt.

404 Subpt. P, App. A, § 12.09. Thus, we have no trouble

concluding that Walker’s Prescription drug abuse was crucial

to the finding that she was disabled.

9

B. Walker’s Depression and Arxiety

Walker also argues that if the CAAA is applicable to

her case, the ALJ erred in finding that her depression and

anxiety did not render her disabled. Walker maintains that

those conditions made her unable to respond to work

pressure, and thus unable to work. We conclude that

substantial medical evidence supports the ALJ’s

determination that Walker’s depression and anxiety did not

prevent her from performing light work. We conclude that

substantial medical evidence supports the ALJ’s

determination that Walker’s depression and anxiety did not

prevent her from performing light work. For example, four

mental-health specialists examined Walker after her alleged

disability date of onset, Drs. Vargo-Moncier, Breslin,

Savage, and Shehi, but none of them concluded that any of

her mental impairments should keep her from working.

Walker testified that she could not do work due to her

forgetfulness and her tendency to panic in_ stressful

situations, but the ALJ found that Walker’s testimony

regarding these conditions was “inconsistent with and less

credible than the medical evidence of record.” The ALJ also

specifically found that Walker’s medical record “does not

support that [Walker] has a mental impairment that could

reasonably be expected to produce symptoms above the mild

to moderate level.” Based on the record as a whole, we

conclude that the ALJ’s finding is supported by substantial

evidence.

td Medical-Vocational Rule 202.04

Finally, Walker argues that the ALJ erred by not

finding that she would be disabled under Medical-Vocational

Rule 202.04, which applies to people of “advanced age.” 20

10

C.F.R. Pt. 404, Subpt. P, App. 2, § 202.04. Walker was

fifty-four at the time of her second hearing, but Rule 200.00

defines “advanced age” as over fifty-five. See id. §

200.00(f). Walker argues that the ALJ should have applied

the “advanced age” grid despite her age, because her mental

conditions and lack of work history made her able to adapt to

new work at less than the level established under the grids

for people “approaching advanced age.” See id. § 200.00(g)

(defining “approaching advanced age” as fifty to fifty-four

years old).

The Medical-Vocational Guidelines (the “grids”) are

a series of tables which correlate the claimant’s residual

functional capacity (i.e., the ability despite impairments, to

do sedentary, light, medium, heavy, or very heavy work),

with vocational factors (e.g., age, education, and work

experience) to determine whether a claimant should be found

disabled. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, §

200.00(a). When there are non-exertional impairments, such

as mental impairments, that significantly limit the ability to

do basic work activities, the grids cannot be the sole basis for

determining disability status. See Syrock v. Heckler, 764

F.2d 834, 835 (11™ Cir. 1985) (quoting 20 C.F.R. Pt. 404,

subpart P, App. 2, § 200.00(e)). While the grids can still be

used as framework when non-exertional impairments are

present, “full consideration must be given to all of the

relevant facts in the case.” 20 C.F.R. Pt. 404, Subpt.

Plaintiff, App. 2, §200(e)(2).

Because Walker had non-exertional mental

impairments, the ALJ properly used the grids only as

framework for his disability analysis. The grid applicable to

those of “advanced age” would have recommended a finding

of “disabled,” while the “approaching advanced age,” grids

~ 1

I iii

by which the ALJ analyzed Walker’s case, recommended a

finding of “not disabled.”

In Reeves v. Heckler, 734 F.2d 519 (1 1" Cir. 1984),

cited by Walker in support of her argument, this Court

concluded that the grids cannot be applied mechanically.

We remanded the Reeves case because the ALJ relied on the

exclusively upon the grids to find a claimant disabled

without considering evidence that the claimant was less able

to adapt to new work than the level established by the grids

for people his age. See id. At 525-26. However, Reeves is

not applicable to Walker’s case because, unlike in Reeves,

the ALJ in this case did not base his decision exclusively on

the grids. Instead, the ALJ used the grids as a framework for

his analysis, but he also sought testimony from the VE. To

obtain the information necessary to reach his decision, the

ALJ posed a hypothetical to the VE listing the limitations —

including mental disabilities — that Walker claimed she had.

The ALJ then obtained the VE’s opinion regarding whether

someone with those characteristics would be able to work.

Therefore, we conclude that the ALJ complied with his duty

urider §200(e)(2) to give full consideration to all relevant

facts.

We also conclude that substantial evidence supported

the ALJ’s decision to apply the grid applicable to people

“approaching advanced age,” i.e., fifty to fifty-four years old.

20 C.F.R. Pt. 404, Subpt. P, App..2, §200(g). For the

reasons stated above in support of the ALJ’s decision that

Walker’s mental conditions did not limit her ability to work,

we conclude that her mental conditions did not render her

| less able to adapt to new work conditions than other fifty-

four year olds. Therefore, the ALJ did not error by failing to

apply the grid governing those of “advanced age,” which

would have recommended a finding of “disabled.’

iil. CONCLUSION

We conclude that (1) the CAAA was applicable to

Walker’s case, (2) the ALJ did not error in finding that

Walker’s depression and anxiety did not render her unable to

perform light work, and (3) the ALJ did not error in applying

the grid for those “approaching advanced age.”

AFFIRMED.

© Walker also argues that the district court erred in

concluding that if she stopped taking methadone, she would

return to drug abuse and alcoholism. The ALJ , however, did

not make such a statement, and this was not the factual

scenario the ALJ had before him. At all material times in

this case, Walker was continuously taking methadone as

treatment for her past substance abuse. Since the ALJ did

not rely on what would happen if Walker stopped her

methadone treatment, we do not address this argument.

Relying on a directive from the Social Security

Administration, Walker also argues that if alcoholism and an

underlying mental condition cannot be separated, then the ~—

alcoholism should not be found to be a material contributing

factor to her disability. We decline to address this issue

because Walker failed to raise it before the district court.

See Stewart v. Dept. of Health and Human Services, 26 F.3d

115, 115-16 (11™ Cir. 1994).

13

APPENDIX A-5 —- DENIAL OF PETITION FOR

REHEARING EN BANC BY CIRCUIT JUDGE

BLACK, JUDGE HULL, AND JUDGE MARCUS

ENTERED DECEMBER 8, 2000

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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 00-10125-GG

LINDA K. WALKER,

Plaintiff-Appellant

versus

KENNETH S. APFEL, COMMISSIONER OF

SOCIAL SECURITY ADMINISTRATION,

Defendant-Appellee

On Appeal from the United States District Court for the

Northern District of Alabama

ON PETITION(S) FOR REHEARING AND PETITION(S)

FOR REHEARING EN BANC

(Opinion 7 1® Cir. 19, F.2d +

Before: BLACK, HULL AND MARCUS, Circuit Judges.

.

ma eon =

Se ak RNR ETS at SPN bit ate

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member

of this panel no other Judge in regular active service on the

Court having requested that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Petition(s) for Rehearing En

Banc are DENIED.

ENTERED FOR THE COURT:

UNITED STATES CIRCUIT JUDGE

APPENDIX B-1 - CONTRACT WITH AMERICA

ADVANCEMENT ACT OF 1996 PUBLIC LAW 104-121

SECTION 105(B)(1).

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H.R. 3136

Contract with America Advancement Act of 1996(Enrolled

Bill (Sent to President)

SEC. 105. DENIAL OF DISABILITY BENEFITS TO

DRUG ADDICTS AND ALCOHOLICS.

(a) AMENDMENTS RELATING TO TITLE II

DISABILITY BENEFITS-

(1) IN GENERAL - Section 223(d)(2) of the Social

Security Act (42 U.S.C. 423(d)(2)) is amended by adding at

the end the following:

(C) An individual shall not be considered to be

disabled for purposes of this title if alcoholism or drug

addiction would (but for this subparagraph) be a contributing

factor material to the Commissioner’s determination that the

individual is disabled.

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APPENDIX B-2 — 20 C.F.R. 404. 1535

EES SEES SER RE SOT Ie eh RTE ee Re ee ca

§ 404.1535 How we will determine whether your drug

addiction or alcoholism is a contributing

factor material to the determination of

disability.

(a) General. If we find that you are disabled and have

medical evidence of your drug addiction or alcoholism, we

must determine whether your drug addiction or alcoholism is

a contributing factor material to the determination of

disability.

(b) Process we will follow when we have medical evidence

of your drug addiction or alcoholism. (1) The key factor we

will examine in determining whether drug addiction or

alcoholism is a contributing factor material to the

determination of disability is whether we would still find you

disabled if you stopped using drugs or alcohol

(2) In making this determination, we will evaluate which of

your current physical and mental limitations, upon which we

based our current disability determination, would remain if

you stopped using drugs or alcohol and then determine

whether any or all of your remaining limitations would be

disabling.

(i) If we determine that your remaining limitations would

not be disabling, we will find that your drug addiction or

alcoholism is a contributing factor material to the

determination of disability.

(ii) If we determine that your remaining limitations are

disabling, you are disabled independent of your drug

addiction or alcoholism and we will find that your drug

addiction or alcoholism is not a contributing factor material

to the determination of disability.

APPENDIX B-3 - 20 C.F.R. 416.937(c)

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§ 416.937 (c) What we mean by appropriate treatment.

By appropriate treatment, we mean treatment for drug

addiction or alcoholism that serves the needs of the

individual in the least restrict setting possible consistent with

your treatment plan. These settings range from outpatient

counseling services through a variety of residential treatment

settings including acute detoxification, short-term intensive

residential treatment, long-term therapeutic residential

treatment, and long-term recovery houses. Appropriate

treatment is determined with the involvement of a State

licensed or certified addiction professional on the basis of a

detailed assessment of the _ individual’s presenting

symptomatology, psychosocial profile, and other relevant

factors. This assessment may lead to a determination that

more than one treatment modality is appropriate for the

individual. The treatment will be provided or overseen by an

approved institution or facility. This treatment may include

(but is not limited to)-

(a) Medical examination and medical management;

(b) Detoxification;

(c) Medical management to include substitution

therapy (e.g., methadone);

APPENDIX C-1 - CORRESPONDENCE FROM

NOSSCR DATED SEPTEMBER 238, 2000

NATIONAL ORGANIZATION OF

SOCIAL SECURITY CLAIMANT’S REPRESENTATIVES

(NOSSCR)

6 PROSPECT STREET

MIDLAND PARK, NEW JERSEY 07432

NANCY G. SHOR (201) 444-1415

EXECUTIVE DIRECTOR (201) 431-2804

FAX: (201) 444-1823

BARBARA R. SILVERSTONE

STAFF ATTORNEY

ETHEL ZELENSKE

DIRECTOR, GOVERNMENT AFFAIRS

September 28, 2000

Marilyn H. Macey, Esq.

Clark & James

Suite 817 Frank Nelson Building

205 20" Street North

P.O. Box 638

Birmingham, AL 35201-0638

Dear Marilyn:

This is a follow-up to our discussion about the

Eleventh Circuit decision in Walker v. Apfel. I am

enclosing the Congressional Record on this law,

which does not discuss methadone specifically. | am

also enclosing some memo from SSA indicating that

use of methadone is neither an automatic denial nor

an automatic finding of disability. Instead, each case

should be evaluated individually to determine

whether the claimant would be disabled if the drug

use stopped.

In your case, the court misapplied the standard for

evaluating disability for an individual who has a drug

addiction. The court appeared to find that the mere

fact that she was taking methadone, or that she

abused prescription drugs, forced a finding of non-

disability. The judges did not consider the effects of

her other impairments. The correct standard is to first

determine whether the individual is disabled, taking

into consideration all of her impairments. If the

individual is disabled, the next step is to remove

those limitations caused by her drug abuse. If the

remaining impairments are disabling, the individual

is entitled to benefits, regardless of her continued

drug use. Causation is also irrelevant. Even if the

disabling impairment (such as her peritonitis, which

eventually killed her) was caused by her drug use,

she is still entitled to disability benefits if the

disability would continue when the drug use stopped.

7 * a

Please let us know what happens in this cise.

Sincerely,

Barbara Silverstone

APPENDIX C-2 - MEDICAL POLICY

CLARIFICATION STATEMENT DATED JULY 20,

1995 ISSUED BY THE SOCIAL SECURITY

ADMINISTRATION’S DIRECTOR, DISABILITY

PROGRAM BRANCH .

SOCIAL SECURITY ADMINISTRATION

DISABILITY PROGRAM BRANCH

JOHN FITZGERALD KENNEDY FEDERAL BUILDING

BOSTON, MASSACHUSETTS 02203

JUL 20 1995

IDENTICAL LETTER: 55-95

TO: All DDS Administrators, Boston Region

FROM: _ Director, Disability Program Branch

SUBJECT: Medical Policy Clarification—

DAA Materiality Decision When Claimant is

in a Methadone Treatment Program

The information in this transmittal should not be interpreted

to mean that mere participation in a methadone treatment

program mandates an allowance on the basis of ongoing

substance abuse. Conversely, methadone treatment is not, in

itself, a basis for a denial. Each situation must be evaluated

on the basis of the specific facts of the case, taking into

account the history, symptoms, clinical signs, treatment,

functional restrictions, and effects of any co-existing

impairments.

Thomas Finigan °

APPENDIX C-3 - GLIN GUIDE, UNITED STATES,

PART 13: PUBLIC LAWS OF 104'™ CONGRESS

GLIN GUIDE - United States — Part 13: Public Laws of 104"

Congress

UNITED STATES OF AMERICA

Public Laws enacted by the 104" Congress [1995-

1996]

Part 13 — Public Laws 104-121 through 104-130

Public Law 104-121 (110 STAT.847)

“Contract with America Advancement Act

of 1996” — Contains three titles dealing with

three different subjects, some portions of

which bear names as separate acts. Title I

deals with various aspects of Social Security

and Medicare, including limits on

employment by those receiving old-age

benefits, reviews of disability payments, and

benefits to children through stepparents, and

for “elimination of benefits to those using

drugs unlawfully”.