CHRISTINE M. ARGUELLO, District Judge.
This matter is before the Court on review of the Social Security Commissioner's decision denying Plaintiff Karl Joseph Putnam's application for disability insurance benefits. Jurisdiction is proper pursuant to 42 U.S.C. § 405(g).
Plaintiff argues that the administrative law judge's ("ALJ") determination that Plaintiff is capable of performing work that exists in significant numbers is erroneous for four reasons. (Doc. # 19.) Because the ALJ's analysis was supported by substantial evidence and because the ALJ used the correct legal standards, the Court rejects Plaintiff's arguments and affirms the decision of the Commissioner.
Plaintiff, born on December 26, 1963, was 51 years old on June 23, 2015, the date of the alleged onset of his disability. (Doc. # 11-5 at 221.)
On August 13, 2015, Plaintiff filed an application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-34. (Doc. # 11-5 at 221-27.) He alleged that he suffered from six limiting conditions: "bipolar depression;" posttraumatic stress disorder ("PTSD"); obsessive compulsive disorder; "back problems;" "chronic right shoulder problems;" and "left leg problem[s]."
ALJ Kurt D. Schuman conducted a hearing on August 10, 2016, in Colorado Springs, Colorado. (Doc. # 11-2 at 30-78.) Plaintiff and his counsel were present, as were Dr. Ronald Houston, an impartial medical expert, and Mr. Prudig, an impartial vocational expert. (Id. at 30.) Plaintiff testified that he was discharged from the United States Navy after testing positive for marijuana use in the early 1980s and that he had since been convicted of driving under the influence ("DUI") three times. (Id. at 40, 45.) He testified that he was presently working up to eleven hours a week as a product demonstrator in grocery stores but that due to his "bipolarism and PTSD and high anxiety levels," he was unable to work in a full-time position. (Id. at 47-48.)
The ALJ asked Dr. Houston, the impartial medical expert, if he had sufficient medical evidence to establish the presence of a medically determinable mental impairment, and Dr. Houston testified that he was unable to rate various criteria "due to conflicts in the record." (Id. at 74.) Dr. Houston specifically contrasted the report of psychological consultative examiner Dr. Richard Madsen, see (Doc. # 11-10 at 534-42), with the report of physical consultative examiner Dr. Rosemary Greenslade, see (id. at 543-54), both of which were completed in January 2016, and stated, "So for me this record is entirely confounded, complicated and conflicted, and my suggestion here is that we're going to need another [consultative examination ("CE")]." (Doc. # 11-2 at 74.) The ALJ stated that he "had real concerns about [Dr. Madsen's consultative examination report] from the get-go" as well and ordered a second consultative examination. (Id. at 75.)
At the request of the ALJ, Dr. R. Terry Jones performed a consultative examination on October 3, 2016. See (Doc. # 11-13 at 718-31.)
The ALJ conducted a second hearing on December 13, 2016. (Doc. # 11-2 at 79-110.) Plaintiff, his counsel, and medical expert Dr. Houston were again present and were joined by another impartial vocational expert, Ms. Nora Dunne. (Id. at 79.) The ALJ continued his questioning of Dr. Houston about Plaintiff's mental impairments. (Id. at 90.) Dr. Houston testified that the paragraph A criteria was satisfied with regard to 12.02 (neurocognitive disorders), 12.04 (depressive, bipolar and related disorders), 12.06 (anxiety and obsessive-compulsive disorders), and 12.08 (personality and impulse-control disorders).
The ALJ then questioned the impartial vocational expert, Ms. Dunne. (Id. at 102-08.) He presented Ms. Dunne with three hypothetical claimants of varying degrees of physical and mental limitations and asked whether jobs existed in the national economy appropriate for them. In the second hypothetical, Ms. Dunne testified that an individual with Plaintiff's age, education, work experience, and residual functional capacity would be able to perform jobs such as "housekeeping cleaner, . . . marking clerk, and . . . routing clerk." (Id. at 106.)
The ALJ issued his decision on January 11, 2017, and concluded that Plaintiff was not disabled under Sections 416(i) and 423(d) of the Social Security Act. (Id. at 14-29.) The ALJ determined that Plaintiff had several severe impairments—"bipolar I disorder; cognitive disorder; post-traumatic stress disorder (PTSD); personality disorder; degenerative disc disease; lumbar spine; and tendonitis, left shoulder"—but that these impairments did not meet or medically equal the severity of one of the listed impairments. (Id. at 19-20.) With regard to Plaintiff's mental impairments, the ALJ found that the paragraph B criteria were not satisfied because Plaintiff had only "mild restriction" in activities of daily living, "marked difficulties" in social functioning, and "mild difficulties" in concentration, persistence, or pace. (Id. at 21.) The ALJ determined Plaintiff had the following residual functional capacity ("RFC"):
(Id. at 22.) Finally, based on the vocational expert's testimony, the ALJ concluded that Plaintiff was "capable of making a successful adjustment to other work that exists in significant numbers in the national economy." (Id. at 28-29.)
Plaintiff requested that the Appeals Council review the ALJ's decision and submitted reasons that he disagreed with the decision. The Appeals Could denied Plaintiff's request for review on May 24, 2017. (Id. at 1-6.) When the Appeals Council declined review, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.981; see Blea v. Barnhart, 466 F.3d 903, 908 (10th Cir. 2006).
Plaintiff initiated the instant action on July 26, 2017, seeking reversal of the ALJ's decision and the award of disability insurance benefits to him. (Doc. # 1.) After the administrative record was filed, Plaintiff submitted his Opening Brief on November 17, 2017. (Doc. # 19.) The Commissioner responded in support of the ALJ's decision on December 6, 2017 (Doc. # 20), to which Plaintiff replied on December 17, 2017 (Doc. # 23).
When reviewing the Commissioner's decision, the Court is limited to determining "whether the findings are supported by substantial evidence and whether the Secretary applied the correct legal standards." Pacheco v. Sullivan, 931 F.2d 695, 696 (10th Cir. 1991); see also 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . ."). First, the Supreme Court has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 217 (1938). "Substantial evidence is more than a scintilla, but less than a preponderance. . . ." Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987).
In reviewing the record to make the substantial evidence determination, the Court "may not reweigh the evidence nor substitute [its] judgment for the Secretary's." Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). In addition, the Court "may not displace the agency's choice between two fairly conflicting views, even though the [C]ourt would justifiably have made a different choice had the matter been before it de novo." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotation marks and citation omitted). Also, the Court "defer[s] to the ALJ on matters involving the credibility of witnesses." Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). "A finding of `"no substantial evidence" will be only where there is a "conspicuous absence of credible choices" or "no contrary medical evidence."`" Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
Second, in addition to the absence of substantial supporting evidence, "[f]ailure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal." Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984); see also Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). "There are specific rules of law that must be followed in deciding whether evidence is substantial in these disability cases." Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987).
However, not every error in evaluating evidence or applying the correct legal standard warrants reversal or remand. "Courts may not reverse and remand for failure to comply with a regulation without first considering whether the error was harmless." Bornette v. Barnhart, 466 F.Supp.2d 811, 816 (E.D. Tex. 2006); see also Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (recognizing that the Tenth Circuit has "specifically applied [the principle of harmless error] in social security disability cases" and collecting cases). Harmless error exists where it is "inconceivable" that a different administrative conclusion would have been reached absent the error. Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003).
"Disability" is defined in the Social Security Act as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . ." 42 U.S.C. § 423(d)(1)(A). The Act further provides that
42 U.S.C. § 423(d)(2)(A). The claimant bears the burden of proving that he is disabled. 20 C.F.R. § 404.1512(a); Wall v. Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009).
The Commissioner has established a five-step sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R. § 416.920(a)(4). The steps of the evaluation are whether: (1) the claimant is currently working; (2) the claimant has a severe impairment; (3) the claimant's impairment meets an impairment listed in Appendix 1 of the relevant regulation; (4) the impairment precludes the claimant from doing her past relevant work; and (5) the impairment precludes the claimant from doing any work. See 20 C.F.R. §§ 404.1512(g), 404.1560(c); Pisciotta v. Astrue, 500 F.3d 1074, 1076 (10th Cir. 2007). A finding that a claimant is or is not disabled at any point in the five-step evaluation process is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).
Plaintiff argues that the ALJ erred in four ways:
(Doc. # 19 at 1-2.) The Court rejects each argument in turn.
Dr. Madsen conducted the first psychological consultative examination on Plaintiff on January 28, 2016, pursuant to a referral by Colorado Disability Determination Services. (Doc. # 11-10 at 534-42.) After detailing Plaintiff's complaints, Dr. Madsen concluded that Plaintiff had "symptoms of PTSD," "panic attacks with agoraphobia," and "mood swings mainly with depression and agitation." (Id. at 537.) Dr. Madsen observed that Plaintiff had "difficulty relating to authority figures, . . . [and] [h]is ability to do work-related activities [was] impaired because of these things." (Id. at 537.) He determined that Plaintiff's abilities to perform work activities on a consistent basis and to accept instructions from supervisors were impaired on marked levels, and Plaintiff's abilities to perform simple and repetitive tasks on a consistent basis, to maintain acceptable attendance in the workplace, to complete a normal workday/week without interruptions from his impairments, and to interact with coworkers and the public were impaired on moderate to marked levels. (Id. at 537-38.)
At the first hearing, impartial medical examiner Dr. Houston stated that Dr. Madsen's report had "very limited value" because it contrasted with other evidence and reports in the record, and he suggested that the ALJ request another consultative examination. (Doc. # 11-2 at 74.) The ALJ ordered a second consultative examination because "unfortunately [he] had real concerns about [Dr. Madsen's report] from the get-go." (Id. at 75.)
The ALJ, in his decision, addressed Dr. Madsen's report when evaluating the opinion evidence for purposes of determining Plaintiff's RFC. (Id. at 24-25.) The ALJ "accept[ed] that the claimant ha[d] marked limitations in social functioning," but he gave "little weight to the remainder" of Dr. Madsen's report, "as it [was] inconsistent with other contemporaneous medical evidence showing improvement in [Plaintiff's] symptoms and intact memory." (Id. at 25.) The ALJ cited Dr. Greenslade's consultative examination report, see (Doc. # 11-10 at 545), and various progress notes from Aspen Pointe, see (id. at 592; Doc. # 11-14 at 790), as evidence in conflict with Dr. Madsen's conclusion. (Doc. # 11-2 at 25.) The ALJ also noted that Dr. Houston, "who reviewed the entire medical record, also testified that Dr. Madsen's opinion was inconsistent with the medical record." (Id. at 25.)
Under the regulations, the Social Security Administration's rulings, and the case law of the Tenth Circuit, an ALJ must "give good reasons" for the weight he or she assigns to each medical opinion. 20 C.F.R. § 1527(c); Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003). Among the factors an ALJ must consider in deciding the weight to give a medical opinion is consistency. 20 C.F.R. § 1527(c)(4); see Goatcher v. U.S. Dep't of Health & Human Serv., 52 F.3d 288, 290 (10th Cir. 1995). The Administration's regulations state, "Generally, the more consistent a medical opinion is with the record as a whole, the more weight we will give to that medical opinion." 20 C.F.R. § 1527(c)(4).
An ALJ has a duty to resolve any conflicts in the medical record, Richardson v. Perales, 402 U.S. 389, 399 (1971), and his or her explanation of resolving a conflict is not sufficiently specific if he or she merely states that a medical opinion is unsupported or inconsistent with the medical evidence without further explanation, Scrivner v. Berryhill, 323 F.R.D. 663, 668 (D.N.M. 2018) (citing Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004)). Additionally, an ALJ "is not entitled to pick and choose through an uncontradicted medical opinion, taking only the parts that are favorable to a finding of nondisability." Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007). The ALJ must instead "explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved." Scrivner, 323 F.R.D. at 668 (quoting SSR 96-8p).
The question governing this Court's review is whether the ALJ's findings with respect to the weight given Dr. Madsen's opinion were based on substantial evidence. Judicial review is limited to the reasons stated in the ALJ's decision, and the Commissioner may not rationalize the ALJ's decision post hoc. Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008).
Plaintiff argues that the ALJ failed to "adequately explain the conflicts in the evidence and why he gave little weight to the opinion of [Dr. Madsen.]" (Doc. # 19 at 17.) He criticizes the ALJ's citation to two progress notes from Aspen Pointe on the grounds that these progress notes were just two of fifty-four progress notes in the record and that they were not an "accurate indication of the day-to-day condition of the patient." (Id.) Plaintiff then asserts that Dr. Madsen's report was "extremely similar" to the report of the second consultative examiner, Dr. Jones, see (Doc. # 11-13 at 718-31). (Doc. # 19 at 17-31.) The Court infers that Plaintiff is taking issue with that ALJ's decision to give "little weight" to portions of Dr. Madsen's report, while giving "great weight" to Dr. Jones's report. (Id.); see (Doc. # 11-2 at 25-26.)
The ALJ's assignment of "little weight" to portions of Dr. Madsen's report was based on substantial evidence, and the ALJ adequately explained why such a weighting was appropriate. The ALJ wrote that he gave little weight to Dr. Madsen's opinion because it was "inconsistent with the other contemporaneous medical evidence showing improvement in his symptoms and intact memory," and, as the Court previously described, cited to three exhibits inconsistent with Dr. Madsen's conclusions. (Doc. # 11-2 at 25.) These three exhibits were just examples; there are several other records in which Plaintiff's treating physician and other medical professionals recorded normal mental status examinations. See, e.g., (Doc. # 11-10 at 594; Doc. # 11-14 at 788, 855.) Moreover, Dr. Houston, the impartial medical examiner, also found inconsistencies between Dr. Madsen's report and the medical record, going so far as to testify that Dr. Madsen's report had "very, very limited value, particularly when you contrast [his] mental status exam" with other records. (Doc. # 11-2 at 74.) The Court therefore concludes that the ALJ's weighting of Dr. Madsen's report was supported by substantial evidence and that his explanation was sufficiently specific.
In explaining how he arrived at Plaintiff's RFC, the ALJ assessed Plaintiff's symptoms "based on the requirements of 20 C.F.R. § 404.1529 and [Social Security Ruling] 96-4." (Doc. # 11-2 at 22-23.) The ALJ wrote:
(Id. at 23) (emphasis added). The ALJ then proceeded to paraphrase Plaintiff's medical record and to analyze the opinion evidence therein. (Id. at 23-27.) The ALJ "accepted that [Plaintiff's] impairments eroded his functional ability," but concluded that "the record does not support that he is as limited as she [sic] alleges." (Id. at 27.) He stated that "the record reflects that [Plaintiff's] conditions have improved with compliance to appropriate medication and support a finding that he is able to sustain" some work. (Id.)
Symptoms are a claimant's own description or statement of his physical or mental impairments. 20 C.F.R. § 404.1502(i); SSR 96-8p. At the time Plaintiff filed his claim for disability benefits in 2015, Social Security Ruling ("SSR") 96-7p, "Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements," governed the Commissioner's analysis of a claimant's subjective complaints. On March 28, 2016, however, Social Security Ruling 16-3p expressly superseded Ruling 96-7p. Ruling 16-3p eliminated use of the term "credibility" and provided new guidance for evaluating the intensity, persistence, and limiting effects of a claimant's symptoms. Wagner v. Berryhill, No. CIV-16-154, 2017 WL 3981147, *7 (W.D. Okla. Sept. 11, 2017). In 2017, the Social Security Administration clarified that it would apply Ruling 16-3p "when [its adjudicators] make determinations and
Ruling 16-3p articulates a two-step process for evaluating a claimant's symptoms. SSR 16-3p; see also 20 C.F.R. § 404.1529. First, the Commissioner determines "whether the individual has a medically determinable impairment (MDI) that could reasonably be expected to produce the individual's alleged symptoms." Id. The Commissioner "will not find an individual disabled based on alleged symptoms alone." Id. Second, the Commissioner "evaluate[s] the intensity and persistence of an individual's symptoms . . . and determine[s] the extent to which an individual's symptoms limit his or her ability to perform work-related activities for an adult." Id. In evaluating the intensity and persistence of a claimant's symptoms, the Commissioner "examine[s] the entire case record, including the objective medical evidence." Id. The Commissioner "must consider whether an individual's statements about the intensity, persistence, and limiting effects of his or her symptoms are
20 C.F.R. § 404.1529(c)(4) (emphasis added).
Plaintiff argues first that the ALJ "failed to properly evaluate [his] subjective complaints of mental impairments and dysfunction that can reasonably be accepted as consistent with the objective medical evidence." (Doc. # 19 at 18.) He faults the ALJ for "disregarding" Dr. Madsen's conclusions, which, he asserts, are "more consistent with the record." (Id. at 19.) Plaintiff cites to instances in which he "discussed with his therapists" his mental impairments. (Id.) The Court infers from the Opening Brief that Plaintiff believes his symptoms—what he refers to as his "subjective complaints," e.g., (id. at 18)—are consistent with medical evidence contained in Dr. Madsen's report and believes the ALJ erred in determining that his symptoms were inconsistent with the medical record. Plaintiff also states that "[s]ubjective statements about one's limitations can be rejected for clear and convincing reasons," citing Carmickle v. Commissioner, 533 F.3d 1155, 1160 (9th Cir. 2008). (Doc. # 19 at 19.)
The Court rejects Plaintiff's first argument as to his symptoms because the ALJ's conclusion that Plaintiff's statements about his symptoms "are not entirely consistent with the medical evidence and other evidence" was supported by substantial evidence. The ALJ detailed Plaintiff's medical record, from the time Plaintiff initiated treatment at Aspen Pointe and the examiner reported he was "appropriately groomed and fully alert and oriented[, and] [h]is memory was grossly intact" to evaluations subsequent to his release from incarceration, when an examiner wrote that he was calm and did not demonstrate abnormalities in thought process or content. (Doc. # 11-2 at 23-24.) The ALJ also cited various opinion evidence that was inconsistent with Plaintiff's reported symptoms. (Id. at 24-27.) As to Dr. Madsen's report, the Court has already explained why the ALJ's discounting of Dr. Madsen's opinion was supported by substantial evidence. Finally, Plaintiff's statement that subjective complaints "can be rejected only for clear and convincing evidence" is incorrect and his citation to the Court of Appeals for the Ninth Circuit unavailing. See (Doc. # 19 at 19.) See Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005) ("Credibility determinations are peculiarly the province of the finder of fact.").
Plaintiff's second argument about his "subjective complaints" is that the "ALJ failed to make a credibility finding regarding [Plaintiff's] statements." (Doc. # 19 at 19-20.) Plaintiff relies on Ruling 96-7p. (Id. at 20.)
Plaintiff's second argument, that the ALJ was required to make a credibility finding regarding his symptoms, fails as a matter of law. Credibility determinations were required under Ruling 96-7p. However, as the Court already explained, Ruling 16-3p was issued in early 2016 and explicitly superseded Ruling 96-7p. Ruling 16-3p governed the ALJ's decision, and it does not require a credibility finding. It makes no mention of credibility at all.
For these reasons, the Court is satisfied that the ALJ's treatment of Plaintiff's symptoms was supported by substantial evidence and made use of the correct legal standard.
At the first hearing, on August 10, 2016, the ALJ asked Plaintiff about his schooling and work experience, and Plaintiff testified that he was other than honorably discharged from the Navy as a result of a failed urinalysis due to marijuana and cocaine use. (Doc. # 11-2 at 42-44.) The ALJ later inquired whether Plaintiff had a driver's license, to which Plaintiff responded that he lost it the year prior when he was convicted of DUI. (Id. at 45.) Plaintiff testified that he had three convictions for DUI. (Id.) Later during Plaintiff's testimony, the ALJ asked him if he stilled used marijuana for pain, and Plaintiff testified that he "[a]bsolutely" did so, "daily almost." (Id. at 54.)
The ALJ then heard testimony from Dr. Houston, the impartial medical expert. (Id. at 70-77.) Dr. Houston explained which listed impairments he considered with regard to Plaintiff (12.02, 12.04, and 12.06) and why he believed the paragraph A criteria were satisfied for those listings. (Id. at 73.) The ALJ said, "And I need to ask, did you at least consider 12.09?" (Id. at 73.) Dr. Houston responded that he did "look at the 12.09. Alcohol has been a problem," and then transitioned to discuss the conflicts between Dr. Madsen's report (in which alcohol was not "really integrated into conclusions, recommendations, and what have you") and the rest of the medical record. (Id. at 74.) The Court ordered a second consultative evaluation and adjourned this hearing shortly thereafter. (Id. at 77.)
On December 13, 2016, the ALJ presided over the second hearing. (Id. at 79-110.) The ALJ began by asking Plaintiff if he still used marijuana and drank alcohol and whether his therapists knew about his marijuana and alcohol consumption. (Id. at 86-89.) When Dr. Houston resumed his testimony and finished explaining his opinion, the ALJ asked him whether there were opinions that were inconsistent with his opinion, and Dr. Houston referred to Dr. Madsen's report: "That, however, seems to have been subsequently resolved because [the] later consultative exam [by Dr. Jones] did note the alcohol's in remission. We do have the ongoing marijuana use." (Id. at 99-100.)
The ALJ did
(Id.) (emphasis added) (internal citations omitted).
At the time of the ALJ's decision in 2017,
20 C.F.R. § Pt. 404, Subpt. P, App. 1 (2017).
Additionally, a claimant is not disabled if alcohol or substance addition is a contributing factor material to the finding of disability. Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001) (citing 42 U.S.C. § 423(d)(2)(C); 20 C.F.R. § 404.1535); see also SSR 13-2p. The key factor in this analysis is "whether [the Commissioner] would still find [the claimant] disabled if [he or she] stopped using drugs or alcohol." 20 C.F.R. § 404.1535(b)(1). The analysis proceeds in discrete steps, "the first of which is the threshold determination whether the claimant has demonstrated a disability at all; only if that `condition precedent' is satisfied must the ALJ assess the role alcohol abuse plays in the demonstrated disability." Chambers v. Barnhart, No. 03-7007, 2003 WL 22512073, *2 (10th Cir. Nov. 6, 2003) (citing Drapeau, 255 F.3d at 1214-15). Only then will the ALJ evaluate which of the claimant's limitations would remain if the claimant stopped using drugs or alcohol. 20 C.F.R. § 404.1535(b)(1).
Plaintiff argues that the ALJ "improperly attempted to insert 12.09, substance addiction, as [an] impairment." (Doc. # 19 at 20.) He clarifies in his Reply that he does not challenge "the investigation of the effect of alcohol and drug use on his ability to function" but rather "the ALJ's repeated effort to have [his] use of medical marijuana, his discharge from the Navy over 30 years ago, and three DUIs over a period of 30 years be material to the determination." (Doc. # 23 at 7.) He cites the ALJ's questioning of Dr. Houston about whether Plaintiff satisfied the requirements for the 12.09 listing of substance addiction disorders as proof of the ALJ's attempts "to insert substance addiction as an issue." (Doc. # 19 at 21.)
The Court concludes that the ALJ correctly applied governing legal principles by raising questions about Plaintiff's marijuana and alcohol abuse. An ALJ is duty-bound to consider a claimant's drug and alcohol use, as it may bear on his or her final disability determination. 42 U.S.C. § 423(d)(2)(C); 20 C.F.R. § 404.1535); SSR 13-2p. And at the time the ALJ decided this matter, substance abuse was also relevant to claimant's impairments under listing 12.09. 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (2017).
The Court also concludes that the ALJ's basis for raising such questions was supported by substantial evidence. The medical record contained considerable evidence that justified inquiry into Plaintiff's marijuana and alcohol use. Treatment records from various providers noted alcohol use and smoking, see, e.g., (Doc. # 11-7 at 358-75, 424), as did the report by Dr. Jones, the second consultative examiner (Doc. # 11-13 at 719). Plaintiff himself volunteered that he was discharged from the Navy for drug use and had been convicted of multiple DUIs in his testimony to the ALJ. (Doc. # 11-2 at 45-54.) The Court therefore rejects Plaintiff's argument that the ALJ improperly "played doctor" by asking and writing about Plaintiff's marijuana and alcohol use. See (Doc. # 23 at 8.)
The impartial vocational expert, Ms. Dunne, testified at the end of the hearing on December 13, 2016. (Doc. # 11-2 at 102-10.) The ALJ presented Ms. Dunne with three hypothetical individuals and asked about their capabilities to do work. In this first hypothetical, the ALJ described an individual of Plaintiff's age, education, and work experience, with Plaintiff's physical limitations.
(Id. at 104-05.) Ms. Dunne testified that this first hypothetical individual could not perform any of Plaintiff's past work but could find unskilled work as a housekeeper/cleaner, marking clerk, or docking clerk. (Id. at 105-06.)
In the second hypothetical, the ALJ assumed "the same hypothetical as hypothetical number one with the following" change: "[I]ncrease the limitation with regard to supervisors in that this individual is limited to work that requires no more than brief and superficial supervision." (Id. at 106.) Ms. Dunne testified that this second hypothetical individual could work as a housekeeper/cleaner, marking clerk, or docking clerk. (Id.)
Finally, in the third hypothetical, the ALJ assumed the same hypothetical individual as in the second but added:
(Id. at 106-07.) Ms. Dunne answered, "No," there were not jobs available to this third hypothetical individual, because those breaks and absences would exceed customary limits and eliminate job possibilities. (Id. at 107.)
The ALJ concluded at the fifth step of his analysis that "[c]onsidering [Plaintiff's] age, education, work experience, and [RFC], there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform" and "based [his analysis] on the testimony of the vocational expert," Ms. Dunne. (Id. at 28-29.) The ALJ explained that when he asked Ms. Dunne whether such jobs existed, she testified that "given all of these factors," an individual with Plaintiff's age, education, work experience, and RFC would be able to perform and secure work as a housekeeper-cleaner, marking clerk, or routing clerk. (Id. at 28.)
The Commissioner may use the services of a vocational expert to determine whether a claimant is able to do his or her past relevant work or work that exists in significant numbers in the national economy. 20 C.F.R. § 404.1560(b)(2); 20 C.F.R. § 404.1566(e). A vocational expert "may offer expert opinion testimony in response to a hypothetical question about whether a person with the physical and mental limitations imposed by the claimant's medical impairments can meet the demands" of such work. 20 C.F.R. § 404.1560(b)(2); see Koopman v. Apfel, 162 F.3d 1173 (10th Cir. 1998) (holding that where the claimant fell between two RFC levels, "the ALJ did exactly what he should have done — he turned to a vocational expert."); SSR 83-12.
"Hypothetical questions must include a full description of the claimant's impairments in order for the testimony elicited by such questions to constitute substantial evidence to support the ALJ's decision." Folsom v. Barnhart, 309 F.Supp.2d 1286, 1298 (D. Kan. 2004) (citing Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991)). However, the ALJ need not include any alleged limitations which he or she does not accept as true in the hypothetical question. Id. (citing Roberts v. Heckler, 783 F.2d 110, 112 (8th Cir. 1985)). Rather, the ALJ "may restrict [the] hypothetical to those limitations which she has found to exist based upon substantial evidence in the record." Id. (citing Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir. 1993)).
Plaintiff argues that the ALJ erred by "not articulat[ing] Ms[.] Dunne's conclusions from the third hypothetical" and instead "adopt[ing] the conclusion based on the [first two] hypotheticals that only included physical impairments." (Doc. # 19 at 23.) Plaintiff also criticizes the ALJ's third hypothetical question for failing to "identify with specificity the mental impairments or their limitations." (Id.)
Plaintiff's characterization of the ALJ's hypothetical questions to Ms. Dunne is flatly contradicted by the transcript of the hearing. See (Doc. # 11-2 at 102-10.) The facts do not support Plaintiff's argument. As the Court detailed, all three hypothetical questions contained specific limitations caused by mental impairments. The first hypothetical individual, for example, was able to maintain attention and concentration two hours at a time but required only occasional interaction with coworkers and no more than occasional supervision. (Id. at 104-05.) The second hypothetical individual had those same limitations but was limited to work that required no more than brief, superficial supervision. (Id. at 106.)
Plaintiff's argument also fails because the ALJ had the prerogative to base his decision on Ms. Dunne's answer to his second hypothetical question, as opposed to his third hypothetical question. An ALJ can limit his or her hypothetical to the impairments which he or she finds to be credible. Taylor v. Callahan, 969 F.Supp. 664, 670 (D. Kan. 1997) (quoting Gay, 986 F.2d at 1341). "A claimed impairment that is found to be not credible or is otherwise not supported by substantial evidence need not be included in a hypothetical." Hunter v. Chater, 895 F.Supp. 1454, 1463 (D. Kan. 1995) (citing Jordan v. Heckler, 835 F.2d 1314, 1316 (10th Cir. 1987)). As the Court previously detailed, the sole difference between the second and third hypothetical individuals was that the third individual required "on average two additional breaks each workday of during between 10 and 15 minutes each in addition to regularly scheduled breaks, and will require more than one or two unscheduled or unexcused absences per month." (Doc. # 11-2 at 106-07.) Ultimately, the ALJ did not include this limitation in his determination of Plaintiff's RFC; he concluded instead that Plaintiff was able to work "a normal workday with normal breaks."
For the foregoing reasons, it is hereby ORDERED that the January 11, 2017, written decision of the administrative law judge is AFFIRMED.
