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Tina Miller v. Michael J. Astrue

December 8, 2011

TINA MILLER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: William K. Sessions III U.S. District Court Judge

Memorandum Opinion and Order

In an action under 42 U.S.C. § 405(g), Plaintiff Tina Miller seeks review of a March 26, 2010 final decision of the Commissioner of Social Security (the "Commissioner") denying her claims for benefits. The Commissioner affirmed the decision of Administrative Law Judge ("ALJ") Dory Sutker, who found substance abuse was a contributing material factor to Miller's disability, rendering her ineligible for benefits under 42 U.S.C. §§ 423(d)(2)(C); 1382c(a)(3)(J).*fn1 Miller moved for the Court to reverse and remand the decision, Pl.'s Mot. to Reverse the Dec. of the Comm'r, Nov. 15, 2010, ECF No. 7, and the Commissioner filed a cross motion to uphold it, Def.'s Mot. for Order Aff'g Dec. of the Comm'r, Feb. 18, 2011, ECF No. 11. For the reasons that follow, the Court grants the Commissioner's motion and denies Miller's, affirming the agency action.

I.Background

A.Miller's Personal History

Miller, now thirty-seven years old, filed applications for Social Security disability benefits and Supplemental Security Income ("SSI") on January 16, 2007. Admin. R. ("AR") at 125. She claimed a disability onset date of January 1, 2001, AR 125, alleging she cannot work because she suffers from debilitating mental illness, including Post-Traumatic Stress Disorder ("PTSD"), anxiety disorder, agoraphobia and bipolar disorder. AR 142-43.

The record describes the difficult, and at times horrific, events Miller has been forced to endure in life. She was born in Keene, New Hampshire to alcoholic parents. They divorced when Miller was still a toddler, and Miller has long been estranged from her father who is emotionally abusive. When Miller was six, her mother committed suicide. After her mother's death, she moved in with her grandmother, with whom she lived until she was eleven years old. While there, she was physically abused by an uncle and by a neighbor. Subsequently, she moved between other relatives, foster care, and boarding schools until reaching eighteen. She dropped out of high school before graduating but later obtained a GED. At twenty-three, she married and moved to Cape Coral, Florida where she began a family with her husband, a police officer. After six years of marriage, however, she fled fearing for her life. Her abusive husband, she claimed, went so far as to chain her in their basement, point a gun at her head, and shoot at her. She since has had no contact with him or her three children, who remain with him. She moved to Winchester, New Hampshire and then Brattleboro, Vermont, and currently resides in the Burlington, Vermont area.

Miller has long struggled with substance abuse. She began drinking alcohol, sometimes to excess, at seventeen and started using cannabis at age twenty. AR 308-09. At twenty-seven, she stopped drinking heavily and turned to more potent drugs like cocaine and heroin. AR 308-09. She has been incarcerated in Vermont on several occasions. Her longest stretch of jail time was from June 2003 until April 2004, when she was incarcerated at the Southeast State Correctional Facility in Windsor for selling heroin. AR 285. Miller testified before the ALJ that she has never held a job for more than seven months. AR 31. Prior to her 2003 incarceration, she had worked as: an assembly line manufacturer, a bartender, a nurse's aide, a sales associate, and a grocery store clerk. AR 144. She also has worked briefly on several occasions as a housekeeper. AR 31.

She spent the longest period as a nurse's aide, performing that job periodically between 1994 and 2002. AR 144. After leaving jail in 2004, she held a variety of customer service and sales jobs for short periods, AR 139-40, and helped run a roofing subcontracting business with a previous boyfriend, AR 396.

B.Course of Treatment and Evaluations

1. 2003-04 Incarceration and Immediate Aftermath: Since entering the Southeast State Correctional Facility in 2003, Miller has sought treatment for drug addiction and mental illness from a variety of sources. From September 2003 until March 2004, she met with health care providers in jail. AR 217-78. She complained of racing thoughts and inability to sleep, and was placed on a regimen of Prozac and lithium. AR 217-28, 253. After her release in April, Miller returned to jail briefly in August 2004 on a parole violation for a positive drug test. AR 311.

On August 27, 2004, after leaving the correctional facility, Miller entered the Brattleboro, Vermont Retreat health center. AR 279. Dr. Percy Ballantine, M.D., interviewed her upon her arrival, and she was admitted for inpatient detox from heroin and treatment of depression and anxiety. AR 279. Dr. Ballantine noted that Miller had last used heroin, crack cocaine, Adderall, and OxyContin days prior to her admission, and that she averaged five bags of heroin per day. AR 288. He diagnosed her with opioid dependence, major depression, PTSD, and panic disorder with agoraphobia. AR 280. She was prescribed Wellbutrin, Risperdal and Methadone, and was discharged on August 31, 2004. AR 279-80.

On September 3, 2004, Miller began counseling and treatment at the Rutland Mental Health Service in Rutland, Vermont. AR 305. Psychiatric Nurse Practitioner Anne Baylock met with Miller, noting that her longest period of total sobriety was seven months, four of which coincided with her recent incarceration. AR 309. Baylock's clinical assessment tracked Dr. Ballantine's, adding that she did not consider Miller bipolar. AR 312. Vera Houghtby, a clinical counselor at Rutland, commented on Miller's "history of relapse," believed due to Miller's "compliance without acceptance" with past treatment regimens. AR 314. Miller dropped out of treatment on October 28, 2004, with, according to Houghtby, "[n]one of her goals or objectives . . . achieved." AR 320. Shortly thereafter, it appears Miller was jailed again for approximately one month on a parole violation. AR 330-31.

2. Wallingford Recovery House -- Joyce Anderson, CADC: Correctional officials referred Miller to the Wallingford, Vermont Recovery House, where she successfully completed outpatient treatment from December 6-18, 2004. AR 323-36. During that time, Miller was under house arrest. AR 331. Certified Alcohol and Drug Counselor ("CADC") Joyce Anderson produced a Discharge Summary, in which she wrote that Miller "s[aw] herself as having no need for employment counseling," and also commented that "Miller has enough knowledge and resources to find employment on her own. She just needs to stay out of jail to do it." AR 330.

Miller admitted to last using heroin and cannabis in October 2004, but said that she had been clean since that time, including while in jail. AR 330. Anderson further wrote:

Ms. Miller said she has been treated as a private patient or on an outpatient basis for psychological problems on three occasions. She was first treated for psychological or emotional problems when she was six years old. She reported having experienced the following psychological problems, unrelated to drugs or alcohol during the past 30 days: serious depression serious anxiety or tension trouble understanding, concentrating or remembering AR 333. Anderson's diagnostic impression of Miller was opiate dependence, which was then in the early stages of physiological remission, cannabis abuse, and alcohol abuse. AR 335. She found Miller had a Global Assessment of Functioning ("GAF") score of forty-eight when she first entered the clinic. AR 336.*fn2

After completing her work with the Recovery House, Miller apparently returned to the Southeast State Correctional Facility in February 2005, where she received further treatment. AR 337-41.

3. Treatment in Burlington -- Dr. Joseph Lasek, M.D. and Kerry Stout, LICSW:

Miller moved to the Burlington, Vermont area. By December 2005, she was working with health care providers at the Howard Center for Human Services in Burlington. AR 496. She continued meeting with Howard staff until at least November 2008. AR 598. Throughout her time at Howard, Miller relapsed frequently, admitting to using or testing positively for drugs like heroin, cocaine, ecstasy, and marijuana, interspersed with clean tests or admissions of sobriety. AR 420-507.

On July 20, 2007, Dr. Joseph Lasek, a psychiatrist at the Howard Center, met with Miller and produced an initial diagnostic report. AR 447. Miller endorsed suffering symptoms of panic attacks one to four times per day, with recurring fears of having such attacks. AR 447-48. He found that she endorsed symptoms of obsessive compulsive disorder ("OCD"), particularly in her constant focus on hygiene and cleanliness. AR 448. She endorsed almost every symptom of PTSD, including dissociation, blackouts, and intrusive nightmares and flashbacks related to the trauma. AR 448. She reported her biggest difficulty with substance abuse began around the time she left her husband. AR 449. He noted that she was, at the time of the interview, smoking three to four bowls of marijuana per day to cope with her "anxiety and insomnia." AR 449. He found she presented "an extremely complicated constellation of psychiatric symptoms," meeting the criteria for PTSD, bipolar disorder, anxiety disorder, panic disorder with agoraphobia, OCD, and opiate, cannabis and cocaine dependence. AR 450. He further assigned her a GAF of forty,*fn3 and prescribed lithium. AR 450.

Case 2:10-cv-00123-wks Document 13 Filed 12/08/11 Page 9 of 23

In follow-up reports, Dr. Lasek noted Miller's difficulties in following her treatment regime. He also determined that what he had originally diagnosed as bipolar disorder was instead likely a comorbid interaction between Attention Deficit Hyperactivity Disorder ("ADHD") and PTSD. He wrote that "[d]espite all these problems, she has maintained her sobriety since stopping methadone last February [2007]." AR 511. That statement, however, is contradicted by the relapses for cocaine, heroin and ecstasy during that time, AR 461-92, and Lasek's own report of July 20, 2007, which noted Miller's marijuana use, AR 449. Furthermore, in his October 6, 2008 report, he wrote that Miller "is using marijuana to help with her sleep and we talked about how this can worsen her anxiety ...


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