United States District Court, M.D. Tennessee, Nashville Division
A. WISEMAN, JR. SENIOR U.S. DISTRICT JUDGE
before the Court is Plaintiffs Motion for Judgment on the
Administrative Record (Docket No. 23). For the reasons stated
herein, Plaintiffs Motion is GRANTED.
August 18, 2009, Plaintiff filed an application for
disability insurance benefits, alleging diabetes, hip-back
injury, and severe anxiety-depression, with an onset date of
January 1, 2007. Administrative Record ("AR"),
found at Docket No. 12, p. 170. His claim was denied initially
and on reconsideration, and Plaintiff then filed a timely
written request for a hearing. An Administrative; Law Judge
(" AL J") held a hearing on March 7, 2012, at which
Plaintiff and his wife testified, as did j a vocational
expert. AR, pp. 35-98.
found that Plaintiff was not disabled under the Social
Security Act ("SSA"). AR, | pp. 16 and 28. The ALJ
found that Plaintiff is under a disability, but a substance
use disorder is a contributing factor material to the
determination of disability and, therefore, Plaintiff is not
disabled (under the SSA. Id., pp. 15-16.
wife, Emily Wolfe, testified at the hearing that, when her
husband becomes psychotic, he is delusional, hears voices and
thinks that either unseen forces or someone is trying to hurt
him. AR, p. 42. She stated that most of the time when he is
psychotic, Plaintiff has absolutely no clue what is going on
and does not even remember a lot of things. Id., p.
43. She testified about Plaintiffs various medications and
how they helped or did not help Plaintiff. For example, she
stated that he did not do well with Haldol; he was not
psychotic on Risperdal, but it had strong side effects
(sleepiness and sluggishness) and he had a hard time
maintaining focus; and Ability did not control his psychotic
disorder (it "just didn't work.").
Id., pp. 44-46, 49 and 51. She also testified that
the most effective medication for Plaintiff is Risperdal and
she trusts him to be alone with their children when he is
compliant with that medication. Id., p. 67.
Wolfe testified that she did not think Plaintiff was using
any illegal drugs at the time of the hearing and that she was
not aware of Plaintiff s using any drugs other than
marijuana. AR, p.62. She also testified about Plaintiffs use
of alcohol, including a night when he had been drinking and
attacked her. Id., pp. 63-64. She stated that
Plaintiff does not participate in any kind of drug or alcohol
rehabilitation. Id., p. 65. She testified that the
reason Plaintiff could not meet the demands of a full-time
job, even though he is better on the Risperdol and is not
smoking pot, is because he "needs lots and lots of
sleep, " has a "really short attention span, "
and cannot "maintain the focus to follow through on
things." Id., p. 69.
testified that he graduated from high school and has credit
for two college courses. AR, pp. 70-71. He testified that the
last time he worked was in 2005 or 2006, as a landscape
foreman. Id., p. 72. He stated that the majority of
the work he had done in the past 15 years was framing houses,
landscaping and brick masonry, which involved lots of heavy,
manual labor. Id., pp. 75-76. Plaintiff testified
that he was "drinking and drugging" when he did
this work and he has used marijuana, LSD and cocaine.
Id., p. 76. He said that the last time he smoked
marijuana was about a month and a half before the hearing.
testified that he drives his children to school and to their
grandparents' house and drives sometimes to the grocery
store and restaurants. AR, pp. 79-80. He testified that what
prevents him from working now is the medication he takes,
Risperdol. Id., p. 80. When asked why he would not
be able to perform a job like he used to (landscaping or
carpentry work), Plaintiff answered:
I don't remember ever not really having an episode at one
of my jobs, where I felt like someone was messing with me or
someone was having an influence and impact on my life that,
you know, would lead me to thinking irrationally or to get
scared. So I don't see that that would ever change even
if I got a job in the near future. My attention span on the
medication is not really as strong as it used to be when I
AR, p. 81.
testified that he was being treated for his mental
impairments at The Guidance Center in Franklin, Tennessee,
and medical personnel there prescribe his medications. AR,
pp. 82-83. Plaintiff stated that, for fun, he sometimes went
kayaking, but that, at the time of the hearing, he did not do
a whole lot other than take care of the kids. Id.,
pp. 84-85. He stated that he was "not real, real
effective" with keeping his home straight and picked up.
Id., p. 85.
asked why he had so many employers (27) in the past,
Just, I never stayed at a job long, whether it be that I
couldn't handle it physically or if I mentally ran into
problems with maybe someone that I worked with. I had
problems with people that I worked with in the past.
Sometimes I just, the redundancy of work sometimes just got
to me where I couldn't handle it.
AR, p. 85. Plaintiff also testified about being neglected and
abused when he was a child. Id., pp. 86-87. He
testified about having fear and anxiety, which are better on
the Risperdol, and about getting sluggish in the afternoon
and being really tired in the evenings. Id., p. 88.
vocational rehabilitation counselor, Gail Ditmore, testified
that she had reviewed the exhibits from Plaintiffs file to
familiarize herself with Plaintiff s vocational background.
AR, p. 90. She testified that Plaintiff s prior jobs,
landscape foreman and framer, are both heavy exertion level
jobs, based on lifting and carrying things. Id., p.
posed a hypothetical question to Ms. Ditmore as
follows----assuming a person with Plaintiffs age, education
and work experience who could perform somewhat between light
and medium exertional work, occasionally lift and carry up to
40 pounds, frequently lift and carry up to 20 pounds, do the
same amount of pushing and pulling with similar weights,
stand and/or walk a total of 6 hours during an 8-hour workday
and sit for up to 8 hours in an 8-hour workday, could
understand and remember only simple one to-three step tasks,
concentrate and persist on such tasks for two-hour periods
with normal routine breaks, interact with supervisors at
least two-thirds of the workday, and interact with co-workers
and the general public only one-third of the workday, could
adapt to limited change and could set limited independent
goals - could that person perform any of
Plaintiffs former past work? AR, p. 92. Ms. Ditmore testified
that the past work was not possible. Id. She also
testified, however, that there are other unskilled
occupations in the national economy that such a person would
be able to perform - assemblers, cleaners and dishwashers.
Id., pp. 92-93.
counsel changed the hypothetical question to add the
following limitations: interruptions caused by
psychologically based symptoms and an unreasonable number and
length of rest periods for at least 10% of the time. Ms.
Ditmore responded that no work would be possible with those
added limitations. AR, p. 94. Similarly, when Plaintiffs
counsel added limitations for 10% of the time in the ability
to perform activities within a schedule, maintain regular
attendance and be punctual within customary tolerances, Ms.
Ditmore said that no work would be possible. Id.,
pp. 95-96. Plaintiffs counsel posited that the hypothetical
person also had "marked" limitations in the ability to
maintain attention; marked impairment in the ability to work
in coordination with or in proximity to others without being
unduly distracted; marked limitation in the ability to accept
instructions and respond appropriately to criticisms from
supervisors; marked limitations in the ability to get along
with co-workers and peers without unduly distracting them or
exhibiting behavioral extremes; marked limitation in the
ability to respond appropriately to changes in a routine work
setting; and the need for rest periods one to two and a half
hours a day, at least two or three days a week. With each
limitation, Ms. Ditmore answered that no work would be
possible. AR, pp. 96-97. Ms. Ditmore also testified that a
marked limitation in one's ability to concentrate and
persist, caused by medication sedation, would also preclude
the jobs she had identified that Plaintiff could perform. AR,
claimant bears the ultimate burden of establishing an
entitlement to benefits by proving his "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." 42 U.S.C. § 423(d)(1)(A). The
claimant's physical or mental impairment must result from
anatomical, physiological, or psychological abnormalities
which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3).
disability under the Social Security Act means not simply
that the individual is unable to perform his previous work,
but that he cannot, considering his age, education, and work
experience, engage in any other find of substantial gainful
work which exists in the national economy, regardless of
whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work. 42 U.S.C.
§ 423(d)(2)(A). In addition, an individual shall not be
considered to be disabled for purposes of determining
disability 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.
determining disability, the SSA and the ALJ consider a
five-step sequential evaluation process. The Sixth Circuit
has described these five steps as:
claimant who is engaging in substantial gainful activity will
not be found to be ...