KAREN B. MOLZEN, Magistrate Judge.
THIS MATTER comes before the Court on Plaintiff's Motion to Reverse or Remand Administrative Agency Decision (Doc. 17) filed on May 5, 2014, and fully briefed July 21, 2014. Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b), the parties have consented to me serving as the presiding judge and entering final judgment. Doc. 8. Having carefully reviewed the parties' submissions and the administrative record, the Court will deny the motion to remand and dismiss this action with prejudice.
Plaintiff is a 52-year old, homeless woman who is educated through the 11th grade. AR 53, 54.
Plaintiff applied for supplemental security income on January 15, 2010, alleging disability since December 30, 2009, due to a head injury, migraine headaches, arthritis, and bipolar disorder. AR 201, 219. After Plaintiff's applications were denied initially and upon reconsideration, she requested a hearing before an administrative law judge ("ALJ"), which took place before ALJ Michelle Lindsay on September 7, 2011. AR 47, 104-107, 114-16, 117-120, 121-23.
The ALJ issued her decision on March 15, 2012. AR 29-42. Utilizing the five-step sequential evaluation process
Plaintiff asserts the following claims of error by the ALJ: (1) finding that Plaintiff could work if she abstained from substance use; (2) finding that she could perform the mental functions that work requires on a sustained basis; (3) finding that she retained the RFC to perform past relevant work; and (4) improperly relying on the vocational expert's ("VE") testimony. Doc. 17 at 4, 25-26; Doc. 19 at 7-10.
Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. § 405(g) to two inquiries: first, whether the decision was supported by substantial evidence; and second, whether the correct legal standards were applied. Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (quotation omitted).
Id. (quoting Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) and Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir.1988)) (brackets in original).
The Court's review is based on the record taken as a whole, and the Court will "meticulously examine the record in order to determine if the evidence supporting the agency's decision is substantial, taking `into account whatever in the record fairly detracts from its weight.'" Id. (quoting Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). This Court may not reweigh the evidence nor substitute its opinion for that of the Commissioner. Id. at 1214.
When a claimant suffers from alcoholism or drug addition, the ALJ must first determine whether the claimant is disabled and then determine whether the alcoholism or drug addiction is a "contributing factor material to the determination of disability." 20 C.F.R. § 416.935(a); see also Drapeau v. Massanari, 255 F.3d 1211, 1214-15 (10th Cir. 2001). The key factor in determining whether alcoholism or drug addiction is a contributing factor material to the claim "is whether the Commissioner would still find the claimant disabled if he or she stopped using drugs or alcohol." Drapeau, 255 F.3d at 1214 (citing 20 C.F.R. § 416.935(a)); see also 20 C.F.R. 404.1535(b)(1). In making this determination, the ALJ must evaluate which of the claimant's physical and mental limitations would remain if the claimant stopped the substance use and then determine whether those remaining limitations are disabling. Drapeau, 255 F.3d at 1214 (citing 20 C.F.R. § 416.935(b)(2)); 20 C.F.R. 404.1535(b)(2). When the remaining limitations are disabling, a finding of disability is appropriate. 20 C.F.R. § 416.935(b)(2)(ii)); 20 C.F.R. 404.1535(b)(2)(ii). On the other hand, if the remaining limitations are not disabling, the substance use is a "contributing factor material to the determination of disability," and the claimant is not "disabled" as defined in the Social Security Act. Drapeau, 255 F.3d at 1215 (citing 20 C.F.R. § 416.935(b)(2)(i)); 20 C.F.R. 404.1535(b)(2)(i).
In this case, ALJ Lindsay concluded that Plaintiff's "substance use disorder is a contributing factor material to the determination of disability because the claimant would not be disabled if she stopped the substance use." AR 41. Plaintiff contends this conclusion is not supported by substantial evidence because the ALJ relied solely on consulting physician Dr. Ortiz's conclusions which, she submits, "are contrary to all of the other evidence of record, most from treating sources." Doc. 17 at 8.
The "treating sources" to which Plaintiff refers, LISW
Plaintiff contends that the ALJ's "reasons for discounting the treating source opinions were not valid." Doc. 19 at 2. ALJ Lindsay gave "no weight" to Apodaca's diagnosis or to his "unsupported statement regarding [Plaintiff's] function if she stopped drinking" because, she explained, Apodaca is not an "acceptable medical source." AR 38. Apodaca stated that Plaintiff has a "cognitive functioning problem probably due to her drinking" and opined that "[a]t this point, even if she quit drinking she would have a cognitive functioning problem that medication will not help." AR 386. Whether Plaintiff has a "cognitive functioning problem" constitutes a medical determination. In order to establish a medically-determinable mental impairment, there must be evidence from an acceptable medical source using medically-acceptable clinical and laboratory diagnostic techniques. See 20 C.F.R. §§ 404.1508, 404.1513, 416.908, 416.913. Because Apodaca does not qualify as an acceptable medical source, his opinions are insufficient to establish a medical condition or give a prognosis.
The ALJ gave "little weight" to Harter's assessment that Plaintiff meets the requirements of listings for mental impairments, noting that, in addition to not being an acceptable medical source, Harter's opinion was based on only two visits,
Moreover, in cases involving the determination of whether alcohol and drug use is a contributing factor, the ALJ should carefully examine periods of abstinence, including its length, how recently it occurred, and any changes in limitations of other mental impairments since the last period of abstinence. Salazar v. Barnhart, 468 F.3d 615, 623 (10th Cir. 2006) (referencing the Commissioner's teletype regarding the application of 20 C.F.R. 416.935(a) and (b)).
Apodaca's and Harter's examinations of Plaintiff came at times when she was consuming alcohol on a daily basis. AR 383-386, 447, 465. Harter found Plaintiff to have extreme deficiencies in concentration, persistence or pace, and marked limitations in understanding, memory, the ability to maintain attention, work with others, interact with the general public, and complete a normal work-day. AR 494-496. Apodaca opined that Plaintiff was unable to handle financial affairs, return to work, or live independently. AR 385. Plaintiff reported to both Apodaca and Harter that she suffered from audio and visual hallucinations. AR 383, 386, 489,
On the other hand, Plaintiff's primary care provider, Dr. Rogers, expressly noted that Plaintiff was doing well, feeling good, and was stable after a three-month period of sobriety. AR 467. Similarly, consultative examining psychiatrist Dr. Ortiz found that after three months of abstention, Plaintiff's memory was "good," she was only "mildly limited as evidenced by mood, energy, and sleep disturbance," and was "the most stable she has been in her life." AR 341-343. Indeed, she reported to Dr. Ortiz with a "big smile" that she was "doing pretty good not drinking." Id. Also at a time of abstinence, Dr. Loescher determined that Plaintiff's cognitive functioning, while limited, was such that she was "able to understand, remember and follow through on basic work instructions." AR 559. Plaintiff also reported having no auditory or visual hallucinations or psychotic or delusional thinking during these periods of abstinence. AR 342, 556. Drs. Loescher and Ortiz also agreed that Plaintiff was capable of handling her own finances. AR 342, 559.
In sum, the evidence is not contradictory, but suggests that Plaintiff's functioning significantly improves when she abstains from alcohol or other drugs. Accordingly, the ALJ's finding that Plaintiff's substance use is a contributing factor material to the determination of disability is supported by substantial evidence.
Plaintiff argues that evidence from treating and examining sources shows that Plaintiff's mental limitations are greater than described by the ALJ's RFC. Doc. 17 at 15-20. The ALJ found that:
AR 34-35.
"Concentration, persistence, or pace refers to the ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings." Stokes v. Astrue, 274 F. App'x 675, 680 (10th Cir. 2008) (quoting 20 C.F.R. § Pt. 404, Subpt. P, App. 1(C)(3)). ALJ Lindsey gave "significant weight" to Dr. Chiang's opinion that Plaintiff "can understand, remember, and carry out simple instructions, make simple decisions, [and] attend and concentrate for two hours at a time," AR 415, which the ALJ incorporated into Plaintiff's RFC. AR 34.
Plaintiff complains that according "significant weight" to the opinion of Dr. Chiang, the reviewing state agency psychiatrist, is contrary to substantial evidence. Doc. 17 at 15. Plaintiff cites to the evaluation and testing performed by Dr. Loescher noting that Plaintiff's low scores during testing should lead to the conclusion that "Ms. Sandoval's impairment in concentration, persistence, and pace, is at least marked." Doc. 17 at 15-16. However, Dr. Loescher found that in spite of her low test scores, Plaintiff would be able to "understand, remember and follow through on basic work instructions." AR 559. This conclusion is based on Plaintiff's short term and working memory subtests and is consistent with Dr. Chiang's assessment. The ALJ also gave significant weight to the opinion of Dr. Hesse, who examined Plaintiff in March of 2010, and opined that while Plaintiff described having migraine headaches and some memory loss, "[i]t is my impression the patient is able to work, nevertheless." AR 337.
Plaintiff notes that Dr. Hesse may not have accessed Plaintiff's medical records where Plaintiff described headaches, anxiety, hallucinations, and other symptoms, (Doc. 17 at 16-17), but ALJ Lindsay
Plaintiff further argues that the ALJ "improperly diminished or disregarded . . . opinions from [her] treating providers who were familiar with her during the relevant time period." Doc. 17 at 17. This argument is without merit. First, like Dr. Ortiz, Dr. Hesse examined Plaintiff in March of 2010, during a period of abstinence unlike Apodaca and Harter who saw her when she was consuming alcohol on a daily basis. The "relevant time period" is, therefore, different for Plaintiff's treating sources. Second, as previously discussed, the ALJ properly weighed all of the opinions, and the Court will not reweigh the evidence. The ALJ's RFC determination with respect to concentration, persistence, and pace is supported by substantial evidence.
Plaintiff criticizes the ALJ for including "superficial interactions with supervisors" as the only social functioning limitation in Plaintiff's RFC. Doc. 17 at 19. Plaintiff correctly notes that the vocational expert agreed that there can be a conflict within an RFC that includes a limitation to simple, one- to two-step tasks in the absence of a requirement that the worker be "closely supervised." Id. As the Commissioner points out, however, there was not such a conflict within the RFC as determined by the ALJ in this case.
At the hearing, Plaintiff's attorney asked:
AR 90. The vocational expert agreed that would be a "one kind of conflict with the hypothetical." Id. The record establishes, however, that when Plaintiff is not using alcohol, she is able to complete one- to two-step tasks
Next, Plaintiff argues the ALJ should have included a limitation with regard to Plaintiff's ability to interact appropriately with the public and co-workers. Doc. 17 at 19-20. No evidence in the record suggests that, in the absence of substance use, any of Plaintiff's impairments would prevent her from working with the public and co-workers. Rather, Dr. Ortiz notes that Plaintiff's mood was stabilizing off alcohol (AR 39, 343) and that "Ms. Sandoval is the most stable she has been in her life." AR 343. Dr. Chiang specifically found that Plaintiff's ability to interact with the public and coworkers was not significantly limited. AR 414. Consequently, it was not error for ALJ Lindsay to omit limitations with respect to the public and co-workers from Plaintiff's RFC.
Finally, Plaintiff asserts that the ALJ should have included a limitation in her RFC that Plaintiff has "a marked impairment in her ability to complete a normal work day or week without interruptions from psychologically based symptoms." Doc. 17 at 20. This argument is also without merit. The portions of the record cited by Plaintiff do not support this proposition.
For the foregoing reasons, the ALJ's RFC does not contain legal errors and was supported by substantial evidence.
There are three phases of evaluation that an ALJ must complete at Step Four: first, the ALJ must determine a claimant's physical and mental RFC; second, she must determine the physical and mental demands of the claimant's past relevant work; third, she must determine whether the claimant has the ability to meet the job demands found in phase two despite the limitations found in phase one. Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (citing Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996)). Plaintiff claims errors at all three phases.
Plaintiff contends that the insufficient RFC renders the past work finding error. Doc. 17 at 21. As the Court has determined that ALJ Lindsay correctly evaluated Plaintiff's RFC, there is no error at phase one.
Plaintiff argues that the ALJ erred by not making specific findings at phase two with regard to the physical and mental demands of Plaintiff's past relevant work. Doc. 17 at 21-22. In support of her argument, Plaintiff cites to Villalobos v. Colvin, CIV 13-2005 (10th Cir. 2013) (unpublished). The Court in Villalobos found that the ALJ failed to make findings with regard to job demands because she merely noted that the vocational expert testified that Villalobos could perform his past jobs and concluded that plaintiff could perform his past jobs as they had generally been performed. Doc. 17-1 at 9. While "[i]t is improper for an ALJ to make RFC findings and then to delegate the remaining phases of the step four analysis to the vocational expert, because the `remainder of the step four analysis takes place in the VE's head' and `we are left with nothing to review, . . ."[a]n `ALJ may rely on information supplied by the VE at step four." Doyal 331 F.3d at 761 (quoting Winfrey, 92 F.3d at 1025).
In this case, the ALJ made detailed findings about the physical functions required for Plaintiff's past work. For example, ALJ Lindsay found "[t]he claimant has past relevant work, which the vocational expert testified corresponds to scrap sorter/salvage laborer, [Dictionary of Occupational Titles ("D.O.T.")] No. 929, 687-022, which is medium exertional level,
With regard to mental functions, Winfrey instructs:
Id., 92 F.3d at 1025. Although the ALJ may rely on information supplied the vocational expert at step four, the ALJ must make the required findings on the record. Id.
Plaintiff argues that the ALJ's conclusory statement in her decision is insufficient to satisfy the obligation to make specific findings regarding the mental demands of Plaintiff's past work. Doc. 17. When faced with a similar argument in Doyal, the Tenth Circuit held that the ALJ did not delegate his analysis to the vocational expert. Rather, "he quoted the VE's testimony approvingly, in support of his own findings at phases two and three of the analysis. There was nothing improper about this." Doyal, 331 F.3d at 761.
ALJ Lindsay similarly used the vocational expert in this case. The ALJ made specific findings with regard to Plaintiff's mental limitations based on medical evidence. AR 34-35, 38 and 39. At the hearing, the ALJ presented these limitations in a hypothetical to the vocational expert who agreed that a person who "would be able to maintain attention and concentration to perform only simple, one to two-step tasks for two hours at a time without requiring redirection to task, . . . would require work that involved no more than occasional change in the routine work setting . . . could not perform production based work . . . [and] did not require more than superficial interactions with supervisors" could perform Plaintiff's past work. AR 85-87. In her decision, ALJ Lindsay referenced this testimony stating "[t]he vocational expert testified that an individual with the residual functional capacity set out above would be able to perform [her past relevant] work." AR 40. It is clear from the record that ALJ Lindsay made the requisite findings with regard to both the physical and mental functions required for Plaintiff's past work and, as in Doyal, referred to the vocational expert's testimony in support of her own findings. Therefore, Plaintiff has not established her burden at Step Four that she does not have the residual functional capacity to return to past relevant work. Under these circumstances, the ALJ properly determined that Plaintiff is not disabled.
"If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary." Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). Having found that the ALJ correctly determined that Plaintiff is not disabled at Step Four, it is unnecessary for the Court to address Plaintiff's claims at Step Five.
Wherefore,
Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004) (citation omitted).
