Opinion
Civil Action 19-5684
11-30-2021
JENNIFER KODROFF, Plaintiff, v. KILOLO KIJAKAZI, [1] ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
MARILYN HEFFLEY, UNITED STATES MAGISTRATE JUDGE
Jennifer Kodroff (“Kodroff” or “Plaintiff”) seeks review, pursuant to 42 U.S.C. § 405(g), of the Commissioner of Social Security's (“Commissioner”) decision denying her claims for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). For the reasons discussed below, I recommend that Kodroff's Request for Review be granted in part and the matter be remanded to the Commissioner for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
Kodroff was born on January 27, 1990. R. at 1029. She has a limited education and is able to communicate in English. Id. She has past relevant work as a fast-food worker. Id. On July 18, 2012, Kodroff filed applications for DIB and SSI pursuant to Titles II and XVI of the Social Security Act. Id. at 11. She alleged that she became disabled on March 1, 2011 due to obsessive compulsive disorder, anxiety, post-traumatic stress disorder (“PTSD”), and depression. Id. at 11, 80. These applications were initially denied on October 1, 2012. Id. at 11. Kodroff then filed a written request for a hearing on October 4, 2012. Id. A hearing was held before an Administrative Law Judge (“ALJ”) on October 22, 2013, at which time only her father appeared. Id. Kodroff then testified via telephone at a hearing on July 16, 2014. Id. On October 22, 2014, the ALJ issued an opinion finding that Kodroff was not disabled. Id. at 33. The Appeals Council denied Kodroff's request for review, thereby affirming the decision of the ALJ as the final decision of the Commissioner. Id. at 1-4. Kodroff sought review in this Court on May 2, 2016. Docket at 1, Kodroff v. Colvin, No. 16-CV-2090 (E.D. Pa.).
Citations to the administrative record will be indicated by “R.” followed by the page number.
On April 5, 2018, the Honorable Curtis Joyner adopted the Report and Recommendation of the Honorable Henry S. Perkin and granted Kodroff relief. Id. at 21, 22. Specifically, the Court determined that the ALJ's decision failed “to demonstrate full consideration of all of [Kodroff's] impairments, including polysubstance abuse, particularly because the ALJ repeatedly suggest[ed] that [Kodroff's] other mental illnesses [were] less severe when she [was] not using drugs.” Report and Recommendation, Kodroff v. Colvin, No. 16-CV-2090, at 6 (E.D. Pa. Mar. 4, 2018) [hereinafter “2018 Report and Recommendation”]. The Court remanded to the Commissioner “to consider the claimant's impairments related to drug and alcohol abuse and to clearly articulate the weight applied to the evidence and any reasons for rejecting the claimant's claim of disability.” R. at 1015. The order directed the ALJ to discuss the claimant's Global Assessment of Functioning (“GAF”) scores and afford Kodroff the ability to supplement the medical evidence. Def.'s Br. (Doc. No. 26) at 2.
On August 26, 2019, a video hearing was held before an ALJ, during which a medical expert and a vocational expert appeared. R. at 1015. On September 16, 2019, the ALJ issued an decision finding that Kodroff was not disabled. Id. at 1031. Kodroff did not file exceptions to the decision and commenced this action in federal court on February 7, 2020. Pl.'s Br. (Doc. No. 16) at 2. As a remedy, her counsel demanded a court-ordered award of benefits, stating that “[f]urther administrative adjudication of . . . whether she is disabled would only serve to delay the award of benefits to which she is clearly entitled.” Id. at 22-23.
On November 9, 2020, the Commissioner filed a Motion to Remand based on an articulation error identified in Kodroff's brief regarding the ALJ's analysis of her history of drug addiction and alcoholism. Def.'s Br. at 3. Kodroff's counsel filed a Response in opposition to the Motion on November 18, 2020. Id. On November 20, 2020, the Court denied the Commissioner's Motion for lack of a showing of good cause. Order, Kodroff v. Saul, No. 19-CV-5684, at 1-2 n.1 (E.D. Pa. Nov. 20, 2020). The Commissioner subsequently sought remand in her Response to Kodroff's Request for Review.
In his November 20, 2019 order denying the Commissioner's Motion to Remand, Judge Joyner noted that the Commissioner had asserted only that “further evaluation of [Kodroff's] claim is warranted” and that, upon remand, Kodroff will be given the opportunity for a hearing, the medical source opinions will be evaluated, and her residual functional capacity (“RFC”) will be evaluated with and without a drug addiction and alcoholism analysis. Order, Kodroff v. Saul, No. 19-CV-5684, at 1-2 n.1 (E.D. Pa. Nov. 20, 2020). Judge Joyner determined that the Commissioner's failure to allege any additional facts or to make any other arguments resulted in a lack of good cause shown for the request. Id.
II. THE ALJ'S DECISION
In his decision, the ALJ found that Kodroff suffered from the following severe impairments: mood disorders, PTSD, and personality disorders. R. at 1018. The ALJ did not find that any impairment, nor combination of impairments, met or medically equaled a listed impairment. Id. The ALJ determined that Kodroff had the RFC to “perform a full range of work at all exertional levels but with the following nonexertional limitations: she is limited to no detailed instructions and to occasional contact with the public.” Id. at 1019-20.
Based on this RFC assessment and the vocational expert who appeared at the hearing, the ALJ found that there were jobs that existed in significant numbers in the national economy that Kodroff could perform, such as paper inserter, table worker, or garment bagger. Id. at 1030. Accordingly, the ALJ found that Kodroff was not disabled. Id.
III. KODROFF'S REQUEST FOR REVIEW
In her Request for Review, Kodroff contends that the ALJ failed to: (1) follow the relevant governing legal principles with regard to substance abuse and compliance with treatment; (2) reasonably explain his finding that Kodroff did not meet or equal the listing of impairments; (3) reasonably explain his assessment of Kodroff's RFC; and (4) reasonably explain his rejection of lay testimony. Kodroff demands an award of benefits.
IV. SOCIAL SECURITY STANDARD OF REVIEW
The role of the court in reviewing an administrative decision denying benefits in a Social Security matter is to uphold any factual determination made by the ALJ that is supported by “substantial evidence.” 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986); Newhouse v. Heckler, 753 F.2d 283, 285 (3d Cir. 1985). A reviewing court may not undertake a de novo review of the Commissioner's decision to reweigh the evidence. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986). The court's scope of review is “limited to determining whether the Commissioner applied the correct legal standards and whether the record, as a whole, contains substantial evidence to support the Commissioner's findings of fact.” Schwartz v. Halter, 134 F.Supp.2d 640, 647 (E.D. Pa. 2001).
Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Substantial evidence “‘does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552, 564-65 (1988)); Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987). It is “more than a mere scintilla but may be somewhat less than a preponderance of the evidence.” Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (internal quotation marks omitted). The court's review is plenary as to the ALJ's application of legal standards. Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995).
To prove disability, a claimant must demonstrate some medically determinable basis for a physical or mental impairment that prevents him or her from engaging in any substantial gainful activity for a 12-month period. 42 U.S.C. § 423(d)(1); accord id. § 1382c(a)(3)(A). As explained in the applicable agency regulation, each case is evaluated by the Commissioner according to a five-step process:
(i) At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled. (ii) At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in § 416.909, or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled. (iii) At the third step, we also consider the medical severity of your impairment(s). If you have an impairment(s) that meets or equals one of our listings in appendix 1 to subpart P of part 404 of this chapter and meets the duration requirement, we will find that you are disabled. (iv) At the fourth step, we consider our assessment of your residual functional capacity and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled. (v) At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an
adjustment to other work, we will find that you are disabled.20 C.F.R. § 404.1520 (references to other regulations omitted); accord id. § 416.920.
V. DISCUSSION
A. The ALJ Failed to Properly Execute and Articulate the Disability Determination Required When Susbtance Abuse is Present
Kodroff argues that the ALJ erred in his articulation of the drug addiction or alcoholism (“DAA”) analysis required by 20 C.F.R. § 416.935 and the compliance considerations required by 20 C.F.R. § 416.930. Pl.'s Br. at 3-12. The Commissioner agrees with Kodroff's contention that the ALJ failed to properly execute the DAA analysis. Def.'s Br. at 4-5.
An applicant for SSI or DIB may not receive benefits if DAA “would be . . . a contributing factor to the Commissioner's determination that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C). The ALJ must complete the following analyses to determine if, were DAA not present, the applicant would still be disabled:
In cases where there is evidence of drug addiction or alcoholism, the ALJ first performs the normal five-step analysis to determine if the claimant is disabled. “Assuming he [or she] concludes that [the claimant] is disabled (including any impairment attributable to DAA), he [or she] then performs a second analysis to determine the effects of drug or alcohol abuse.” The ALJ must then evaluate which of the claimant's current physical and mental limitations, upon which the disability determination is based, would remain if the claimant stopped using drugs or alcohol and then decide whether any or all of the claimant's remaining limitations would be disabling. If the remaining limitations are not disabling, then the drug addiction or alcoholism is a contributing factor material to the determination of disability. If the remaining limitations are disabling, the claimant is disabled independent of his [or her] drug addiction or alcoholism, and the DAA not a contributing factor material to the determination of disability.Ellow v. Astrue, No. 11-7158, 2013 WL 159919, at *2 (E.D. Pa. Jan. 15, 2013) (internal citations omitted); see SSR 13-2p, 2013 WL 621536, at *6-9 (in which the Social Security Administration explains how to assess whether DAA is material to the determination of disability). An ALJ must only make a DAA materiality determination when there is “medical evidence from an acceptable medical source establishing that a claimant has a Substance Use Disorder” and “when the claimant is disabled considering all impairments, including the DAA.” SSR 13-2p, 2013 WL 621536, at *4.
In this case, it is unclear whether the ALJ properly considered Kodroff's history of substance abuse in the disability analysis. At step two, the ALJ referred to Kodroff's “long and extensive history of drug and alcohol abuse” in his explanation of the severe impairments determination, the list of which did not include a polysubstance abuse disorder. R. at 1018. The ALJ explained that:
[Kodroff] testified that she had periods of sobriety in the past and that she is currently abstaining. Giving [her] all the benefit of the doubt, the undersigned finds that [Kodroff's] impairments continued during times of abstention and therefore any use of alcohol or illicit drugs is not material to this decision.Id. The ALJ's explanation of the materiality of Kodroff's substance abuse at step two of this initial analysis was premature. Had the ALJ followed the DAA analysis required by the Social Security Administration, he would have first determined that Kodroff was disabled considering all her impairments-including her long history of drug and alcohol abuse-and then considered whether that substance abuse was a contributing factor (emphasis added). If he had determined that she was disabled after the initial analysis, the ALJ should have then completed an entirely new disability determination to analyze whether her impairments continued during abstention. The ALJ's reliance on “the benefit of the doubt” during the initial determination fails to replace a full second analysis required under the DAA.
The ALJ again failed to articulate the DAA analysis at step three of the sequential analysis. Here, he determined that Kodroff's mental impairments did not meet or medically equal the severity of affective disorders, anxiety-related disorders, and personality disorders. Id. at 1018. The ALJ stated that Kodroff had a moderate limitation in interacting with others, stating that she was “generally cooperative and calm while sober, but that when drinking or on drugs was . . . involved in altercations.” Id. at 1019. The evidence of record demonstrates that these altercations included an argument with her sister in which she brandished a knife and threatened to kill herself. Id. at 1021. The ALJ further indicated that Kodroff had a mild limitation for adapting or managing oneself, noting that her “long history of criminal charges . . . appeared to be related to her substance abuse.” Id. At this step, the ALJ did not include Kodroff's substance abuse in the disability analysis; rather, he appears to have downplayed the prevalence and severity of any symptoms as merely related to that abuse. The suggestion that Kodroff's limitations may be more significant when substances are involved-as demonstrated through the history of altercations and criminal charges-and the subsequent disregard for the impact of substance abuse on those limitations is inappropriate during the initial determination of whether a claimant is disabled considering all impairments, including DAA. See 2018 Report and Recommendation at 7. An ALJ only considers whether a claimant's other impairments improve in the absence of DAA later in the process, after he or she has made an initial disability determination. Id.
At step four, the ALJ again improperly executed the initial disability analysis by prematurely evaluating whether Kodroff's other impairments improved in the absence of DAA. After thoroughly documenting Kodroff's “long and extensive history of mental health treatment with multiple suicide attempts and involuntary admission[s], ” the ALJ appeared to disregard those treatments as caused only by substance abuse, stating:
However . . . those admissions were also accompanied by significant drug use. The treatment records repeatedly showed that while in a controlled environment, drug and alcohol free, and compliant with treatment, [Kodroff] rapidly improved and had no more than mild to moderate symptoms. [Kodroff] maintains that she is currently clean and sober. Giving the claimant all the benefit of the doubt, the undersigned finds that any substance abuse is non-severe as it has had no more than
a minimal impact on the claimant's ability to perform work activity. Additionally, the undersigned notes that this is not material to the determination of disability in this matter. The evidence establishes that [Kodroff's] mental impairments were severe, although not disabling, even absent evidence of substance abuse.
R. at 1029 (emphasis added). The ALJ again prematurely considered whether Kodroff's DAA was a contributing factor to disability, as he had not yet determined whether Kodroff was disabled considering all her impairments. He further failed to make an adequate initial disability determination by attributing Kodroff's long history of involuntary hospital admissions and more severe symptoms as merely the consequences of substance abuse. As discussed supra, the ALJ must first determine whether a claimant is disabled considering all impairments, including substance abuse, before determining whether other impairments improve in the absence of DAA. Here, the ALJ conflated these two analyses, resulting in an unclear assessment of Kodroff's impairments.
When it is unclear whether the ALJ appropriately considered all of a claimant's impairments including DAA, a court cannot determine whether a plaintiff's disability status is supported by substantial evidence. 2018 Report and Recommendation at 4, 10 (citing Coria v. Heckler, 750 F.2d 245, 247 (3d Cir. 1984)); see Hudson v. Saul, No. 18-2653, 2019 WL 5302243, at *11 (E.D. Pa. Sept. 30, 2019) (“Because the ALJ failed to conduct a proper evaluation of the DAA evidence in the context of the RFC analysis, his analysis is not supported by substantial evidence.”). Accordingly, since the ALJ improperly executed and articulated the disability analysis required for DAA, the case must be remanded for further consideration and articulation as to whether Kodroff is disabled when considering all her impairments and, if so, whether DAA is a contributing factor.
An analysis of Kodroff's additional contentions that the ALJ failed to reasonably explain his findings would require determinations as to whether these findings were supported by substantial evidence. Because of the ALJ's primary articulation error, the undersigned cannot address these three additional contentions. Moreover, because I recommend that the matter be remanded for a properly executed and articulated disability analysis considering Kodroff's DAA, the portions of the ALJ's opinion with which Kodroff takes issue may be revised in a further decision. A remand may produce different results on Kodroff's additional claims, making discussion of them moot. See Bruce v. Berryhill, 294 F.Supp.3d 346, 363-64 (E.D. Pa. 2018) (attacks on an ALJ's RFC assessment were moot because the court already determined the RFC was incomplete and further analysis was warranted).
B. Kodroff Has Not Established That She is Entitled to an Award of Benefits
Kodroff argues that, given the “protracted nature” of the matter's timeline, she is entitled to an award of benefits. Pl.'s Reply Br. (Doc. No. 27) at 6. She asserts that “overwhelming evidence shows that [she] is disabled and entitled to benefits.” Pl.'s Br. at 22.
The Third Circuit directs a district court to award benefits “only when the administrative record of the case has been fully developed and when substantial evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits.” Brownawell v. Comm'n of Soc. Sec., 554 F.3d 352, 358 (3d Cir. 2008) (quoting Podedworny v. Harris, 745 F.2d 210, 221-22 (3d Cir. 1984)); see also Rossi v. Califano, 602 F.2d 55 (3d Cir. 1979) (further administrative proceedings were unnecessary because claimant established prima facie case and no substantial contrary evidence or evidence of a possibility of alternative employment existed). The claimant's own role in any excessive delay in the litigation of the claim is also weighed in the decision to award benefits in lieu of ordering a remand for further consideration. Friedberg v. Saul, 439 F.Supp.3d 402, 404 (E.D. Pa. 2020). When the process has been delayed by factors beyond the claimant's control, the decision to direct an award of benefits is especially appropriate. Brownawell, 554 F.3d at 358.
Although Kodroff filed applications for SSI and DIB 10 years ago, the evidence of record does not support an award of benefits at this juncture. The prolonged nature of her proceedings does reflect the Third Circuit's “frustration” with delays in disability determinations, especially in cases like Kodroff's where the claimant has not contributed to the delay. Plummer v. Apfel, 186 F.3d 422, 435 (3d Cir. 1999). Further, neither party contends that the administrative record has not been fully developed. The record in fact spans more than 10 years and contains over 3, 000 pages. However, despite the lengthy proceedings and administrative record, it remains unclear as to whether substantial evidence ultimately supports a disability finding.
When substantial questions exist about the sufficiency of the evidence supporting a denial of benefits, a case is remanded for further proceedings so that the supporting evidence can be reconciled with contrary evidence. See Brownawell, 554 F.3d at 358 (where the only contrary evidence to a finding of disability was without weight); Woody v. Sec. of Health and Human Serv., 859 F.2d 1156, 1162 (3d Cir. 1988) (“uncontradicted medical and lay evidence” demonstrated the claimant was disabled) (emphasis in original); Podenworny, 745 F.2d at 223-24 (Adams, J., concurring) (a remand on the central issue served no useful purpose since the evidence was “undisputed”); Rossi, 602 F.2d at 58 (benefits were awarded because the only contrary evidence to the claimant's prima facie case was irrelevant). Here, given the improper DAA analyses by the prior two ALJs, substantial questions remain about the sufficiency of the evidence supporting a denial of Kodroff's benefits. The medical record, her symptoms, and the medical opinions and lay testimony have only been considered in analyses that are flawed. Instead of only uncontradicted or undisputed medical evidence, as in the cases cited supra in which awards of benefits were appropriate, Kodroff's record is replete with symptoms, hospitalizations, and criminal charges that could be attributed to her impairments-but that also may be the result of DAA as a contributing factor, thus precluding a disability finding.
Kodroff alleges that “substantial evidence . . . indicates that [she] remains disabled when all substance abuse ceases.” Pl.'s Reply Br. at 5. To support this assertion, Kodroff identifies a period of abstinence in 2014, during which she was hospitalized for depression and PTSD with alcohol, cocaine, and opiate abuse in remission. Id.; R. at 1024, 1462. Kodroff's GAF score upon discharge was 50, which indicated “symptoms bordering between moderate and severe.” R. at 1024. Kodroff also supports this claim with lay testimony from her mother, in which her mother stated that Kodroff's impairments emerged after she was raped as a teenager and before she began to abuse drugs and alcohol. Pl.'s Reply Br. at 5-6. These portions of the evidence demonstrating that DAA is not a contributing factor are contradicted by evidence that Kodroff was also given GAF scores of 65 or better during the 2014 period of abstinence, indicating only mild symptoms, her symptoms improved with regular counseling and prescription medication, and incarcerations and hospitalizations jeopardizing her ability to maintain substantial gainful activity coincided with substance abuse. See R. at 448, 585-606, 665-728, 841, 1023-27, 2259-78, 2291-93, 2318-20, 2323-25. This contradictory evidence requires an appropriate DAA analysis rather than an award of benefits. Unlike in Rossi and Podenworny, the contradictory evidence here is essential to a remand's purpose, in which it should be clearly determined whether Kodroff is disabled given all of her impairments and, if so, whether DAA is a contributing factor.
VI. CONCLUSION
For the foregoing reasons, I make the following:
RECOMMENDATION
AND NOW, this 30th day of November, 2021, IT IS RESPECTFULLY RECOMMENDED that Plaintiff's Request for Review be granted in part and the matter be remanded to the Commissioner in accordance with this Report and Recommendation and with the fourth sentence of 42 U.S.C. § 405(g). The Plaintiff may file objections to this Report and Recommendation within 14 days after receiving a copy thereof. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.