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Bufford v. Colvin

United States District Court, N.D. Illinois, Western Division

September 26, 2016

Joshua Bufford, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Iain D. Johnston, United States Magistrate Judge.

         This case raises a recurring and often difficult question in Social Security disability cases-do the claimant's drug and alcohol problems materially cause or contribute to the alleged mental impairments? This question is relevant because a claimant cannot be found disabled “if alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner's determination that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C). One method of answering this question is to consider any periods in which the claimant was sober (referred to as “periods of sobriety” or “periods of abstinence”) and then determine whether the claimant's symptoms impairments improved. The administrative law judge (“ALJ”) and testifying medical expert in this case purportedly followed this approach in concluding that plaintiff was not disabled. They concluded that during his six-month jail stay in 2013, a time when he presumably was sober, his symptoms improved somewhat. Plaintiff argues that this analysis was incomplete because the ALJ and the medical expert should have considered other, earlier periods of sobriety that undermined this conclusion. Plaintiff seeks a remand under 42 U.S.C. § 405(g) so that the ALJ can consider this additional evidence.

         To understand these issues, it is not necessary to set forth a detailed chronology of plaintiff's life and medical history. This is not to suggest, however, that the facts are sparse or uncomplicated. To the contrary, the record in this case is 1755 pages, more than double the typical length of records reviewed by the Court in such cases.

         By plaintiff's own account, he has had a dysfunctional and difficult life. He was diagnosed with a learning disability when he was 13 years old and had problems in school with authority and interacting with peers. Dkt. #11 at 1-2. Around this time, he began drinking heavily. He has been diagnosed with bipolar disorder, depression, panic disorder, and antisocial personality disorder. Id. at 2. Turning to more recent history, plaintiff has had many hospitalizations, multiple prison stays, several suicide attempts, and ongoing counseling sessions and doctor visits. His opening brief includes a detailed chronology from August 2009 until February 2014. Id. at 2-6. The chronology shows a series of crises and problems. Throughout this period, plaintiff continued to use illegal drugs and abuse alcohol. He was also taking numerous medications prescribed by his doctors to treat his mental illnesses.

         On March 27, 2014, a hearing was held before the ALJ. Plaintiff was then 34 years old. For the present appeal, the key testimony is that of psychologist Mark Oberlander, the impartial medical expert. His testimony can be summarized in fairly short order. He agreed that plaintiff had mental disorders such as major depressive disorder and bipolar disorder, and that plaintiff had an ongoing problem with drug and alcohol addiction. He found that these dual problems caused “marked” limitations in two of the four paragraph B criteria (social interaction and concentration, persistence, or pace), which meant that plaintiff would qualify as disabled under several of the Section 12 mental health listings. However, he concluded that during plaintiff six-month jail stay in 2013, plaintiff had “some amelioration of symptomology.” R. 62. This conclusion was based on a negative inference-namely, Dr. Oberlander stated that he reviewed the prison records from this stay (29 pages in Ex. 39F) and concluded that there was the “absence of any notation” in those records of any social difficulties. R. 67. Accordingly, if plaintiff were able to stay sober, his limitations in social interaction would be “moderate” instead of “marked.” This one change was enough to prevent plaintiff from meeting a Section 12 listing.

         Plaintiff's attorney then asked Dr. Oberlander whether he had considered the records from another period of sobriety. This was around August 2011 when plaintiff, who was then not in jail, was being treated by Rosecrance counselors. Counsel argued that these medical records showed that plaintiff reportedly had “lost 40 pounds over the two months due to alcohol withdrawal.” R. 66. Counsel argued that, despite being sober, plaintiff continued to report the same symptoms (i.e. “poor memories, anxiety, hearing voices, trouble sleeping, racing thoughts”) and a low GAF score of 45. Id. Dr. Oberlander responded as follows:

I look at documented periods of sobriety, and, certainly, six months of incarceration provides me with sufficient certainty that there was, indeed, abstention. The reported abstention-the treating sources need[] to be taken with some grain of salt especially in dealing with a chronic [condition].[1]

R. 66 (emphasis added).

         On April 24, 2014, the ALJ found plaintiff not disabled. She essentially adopted Dr. Oberlander's reasoning, giving his opinion “significant weight.” The ALJ stated the following:

[T]he claimant's jail records [from 2013] failed to indicate the presence of significant symptoms or any disciplinary issues. The undersigned also noted the claimant's jail records provided the only period of the claimant's sobriety since the filing of his current application.

R. 19. This was the central explanation for the ALJ's decision and was mentioned repeatedly throughout the opinion. See R. 17, 19, 21.

         Plaintiff now argues that the ALJ and Dr. Oberlander ignored several earlier periods of sobriety that undermined their conclusion. As a preliminary observation, the Court notes that the relationship between mental illnesses and substance abuse is complex. This Court recently discussed some of the difficulties involved in trying to ferret out the causal interrelationships involved with mentally ill drug addicts. See Lewis v. Colvin, 2016 WL 4530338, *1 (N.D. Ill. Aug. 30, 2016). The issue has also been discussed in several Seventh Circuit opinions, most notably in Kangail v. Barnhart, 454 F.3d 627, 628 (7th Cir. 2006).[2] In 2013, the Social Security Administration issued a new ruling (SSR 13-2p) seeking to provide further clarification. This ruling states that “periods of abstinence” are usually the best evidence for determining whether a drug addiction or alcoholism is a contributing material factor. At the same time, the ruling recognizes that that this often is not an easy question to answer: “We do not know of any research data that we can use to predict reliably that any given claimant's co-occurring mental disorder would improve, or the extent to which it would improve, if the claimant were to stop using drugs of alcohol.”

         Here, the parties agree that the ALJ and the medical expert were correct in considering periods of sobriety. But the parties dispute whether the ALJ and medical expert did so adequately and fairly. Plaintiff argues that the ALJ cherry-picked the evidence by only considering the one jail stay in the latter half of 2013, which supported her conclusion, and by ignoring two earlier jail stays as well as the August 2011 counseling at Rosecrance, which allegedly undermined her conclusion.

         The first jail stay was in the spring of 2010. Plaintiff argues that during this stay, when he was allegedly not using addictive substances, he continued to experience troubling symptoms. Specifically, on April 14, 2010, he got into an altercation, pushing and yelling at a prison guard, leading to a strong counter-response.[3] R. ...


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