GARY M. PURCELL, Magistrate Judge.
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant Commissioner denying his applications for disability insurance benefits and supplemental security income benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 423, 1382. Defendant has answered the Complaint and filed the administrative record (hereinafter AR___), and the parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). For the following reasons, it is recommended Defendant's decision be affirmed.
Plaintiff protectively filed his applications for disability insurance benefits and supplemental security income benefits on April 15, 2016. AR 30, 233-38, 243-44. Plaintiff alleged he became disabled on June 3, 2015, due to liver cirrhosis, major/severe depression, memory loss, lack of sleep, loss of vision in one eye/bad eyesight, pain in every extremity, seizures, suicidal thoughts, no sense of time, delusions, and optical illusions. AR 241, 271. The Social Security Administration denied Plaintiff's applications on March 15, 2017, see id. at 87, 88, 89-101, 102-14, and on reconsideration on June 8, 2017. AR 115, 116, 117-30, 131-44.
Plaintiff appeared with counsel and testified at an administrative hearing before an Administrative Law Judge ("ALJ") on February 14, 2018. AR 52-84. A vocational expert ("VE") also testified at the hearing. AR 77-81. The ALJ issued a decision in which he found Plaintiff was not disabled within the meaning of the Social Security Act. AR 27-47. Following the agency's well-established sequential evaluation procedure, the ALJ found at the first step that Plaintiff had not engaged in substantial gainful activity since June 3, 2015. AR 32. At the second step, the ALJ found Plaintiff had the severe impairments of cirrhosis of the liver, seizure disorder, major depressive disorder, generalized anxiety, and bipolar disorder. AR 33. At the third step, the ALJ found these impairments were not per se disabling as Plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of a listed impairment. Id.
At step four, the ALJ found Plaintiff had the residual functional capacity ("RFC") to lift and carry 20 pounds occasionally and 10 pounds frequently, sit for about six hours in an eight-hour workday, and stand and walk for about six hours in an eight-hour workday. AR 36. Plaintiff cannot climb ladders, ropes, or scaffolds and is to avoid all exposure to hazards, such as unprotected heights and heavy machinery. Id. Plaintiff can understand, remember, and carry out simple, routine, and repetitive tasks, relate to others in an incidental manner for work related purposes, and adapt to a work situation. Id.
Relying on the VE's testimony as to the ability of a hypothetical individual with Plaintiff's work history, age, education, and determined RFC, the ALJ determined Plaintiff is unable to perform any of his past relevant work. AR 45. Continuing to rely on the VE's testimony, the ALJ determined Plaintiff could perform the jobs of merchandise marker, housekeeping cleaner, and electronics accessory assembler, each of which are available in significant numbers in the national economy. AR 45-46. Based on this finding, the ALJ concluded Plaintiff had not been under a disability, as defined by the Social Security Act, from June 3, 2015 through the date of the decision. AR 46-47.
The Appeals Council denied Plaintiff's request for review, and therefore the ALJ's decision is the final decision of the Commissioner. See 20 C.F.R. § 404.981; Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009).
On appeal, Plaintiff raises two issues. First, Plaintiff contends the ALJ failed to properly consider his alcohol use disorder and its correlating impact on Plaintiff's other impairments. Plaintiff's Opening Brief (Doc. No. 15) at 3-7. Second, Plaintiff argues the ALJ erred in his credibility analysis. Id. at 7-9.
The Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and whether the correct legal standards were applied. Biestek v. Berryhill, ___ U.S. ___, 139 S.Ct. 1148, 1153 (2019); Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). Substantial evidence "means—and means only—`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Biestek, 139 S.Ct. at 1154 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The "determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citations, quotations, and brackets omitted).
The Social Security Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401 et seq. A disability is an "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); accord 42 U.S.C. § 1382c(a)(3)(A); see 20 C.F.R. §404.1509 (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than twelve months. Barnhart v. Walton, 535 U.S. 212, 217-25 (2002).
The agency follows a five-step sequential evaluation procedure in resolving the claims of disability applicants. See 20 C.F.R. § 404.1520(a)(4), (b)-(g). "If the claimant is not considered disabled at step three, but has satisfied her burden of establishing a prima facie case of disability under steps one, two, and four, the burden shifts to the Commissioner to show the claimant has the [RFC] to perform other work in the national economy in view of her age, education, and work experience." Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). "The claimant is entitled to disability benefits only if he is not able to perform other work." Bowen v. Yuckert, 482 U.S. 137, 142 (1987).
Plaintiff argues the ALJ erred at steps three and four of the sequential evaluation analysis by failing to consider the impact of his alcohol use disorder on his severe impairments. Doc. No. 15 at 3-7. However, Plaintiff misapprehends the appropriate consideration of alcohol use within the realm of Social Security benefits.
In 1996, the Social Security Act was amended to exclude drug and alcohol abuse as a basis for disability. Specifically, 42 U.S.C. § 423(d)(2)(c) provides:
Additionally, the Commissioner enacted regulations to implement the amendment. 20 C.F.R. §§ 404.1535 and 416.935 provide as follows:
Under these regulations, the finding of disability is a condition precedent to the application of the rules pertaining to drug and alcohol abuse. Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001) ("Under the regulations, the key factor the Commissioner must examine in determining whether drugs or alcohol are a contributing factor to the claim is whether the Commissioner would still find the claimant disabled if he or she stopped using drugs or alcohol." (citing 20 C.F.R. §416.935(b)(1)). Because the ALJ found Plaintiff is not disabled, the ALJ was not required to perform any additional alcohol use analysis. Accordingly, the undersigned finds there is no merit to Plaintiff's assertion that the ALJ erred in failing to evaluate the impact of his alcohol abuse disorder on his severe impairments and/or the RFC.
In his decision, the ALJ concluded that while Plaintiff's impairments could reasonably be expected to cause his alleged symptoms, the record as a whole did not support a finding these symptoms are as severe as alleged. AR 37. "Credibility determinations are peculiarly the province of the finder of fact, and we will not upset such determinations when supported by substantial evidence. However, findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings." Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir.2005) (citation, brackets, and quotations omitted). The ALJ cited numerous grounds, tied to the evidence, for his credibility finding. However, in challenging this finding, Plaintiff has focused on only one portion of the ALJ's analysis.
Plaintiff reported that he has not worked since 2015 due to cirrhosis of the liver and mental health problems. AR 36, 61-62. Plaintiff testified that his cirrhosis of the liver causes fatigue, abdominal swelling two to three times per month, and loss of appetite. AR 37, 70, 73. Plaintiff first testified that he cannot walk one mile but later testified that he could walk for one mile or 15 minutes. AR 37, 65, 72. Due to his depression, Plaintiff stays home, has a hard time getting out of bed, does not go outside, cannot focus, and experiences intrusive thoughts constantly. AR 67, 69-70, 73. Plaintiff testified that he does not drive but goes shopping with his wife two times per month. AR 71. Plaintiff further testified that he can lift eight to 10 pounds, sit for three to four hours, and stand for ten minutes before he feels fatigued. AR 37, 72.
As previously noted, the ALJ thoroughly discussed the entire record in support of his credibility finding. However, Plaintiff focuses on only a portion of the ALJ's analysis:
AR 43.
During the administrative hearing, Plaintiff testified that he did not take one medication, Latuda, that had previously been helpful in alleviating his depression because it cost over $1200 per month and he could not afford it. AR 67-68. Here, Plaintiff argues the ALJ failed to properly consider his monetary restraints in determining Plaintiff was less than credible with regard to the severity of his symptoms. Doc. No. 15 at 7-9.
As an initial matter, the undersigned notes the ALJ's reliance on Plaintiff's lack of treatment with regard to his impairments was clearly not limited to Plaintiff's inability to afford one particular medication. Moreover, the ALJ's determination that Plaintiff's reported symptoms were less than credible was based on many explained factors in addition to lack of treatment. The ALJ thoroughly discussed the medical record and explained the inconsistencies between Plaintiff's purported symptoms and the medical record, his employment history, and his reported daily activities. AR 37-42. For example, the ALJ noted that Plaintiff's cirrhosis improved in 2015 with Lactulose and Rifaximin. AR 37, 508, 530, 592-93. There are no further medical records indicating Plaintiff complained of further symptoms or was recommended additional treatment. AR 43.
Plaintiff was involved in a car accident in May 2015, as a result of driving while intoxicated, and experienced two seizures. AR 37-38, 43, 182, 601, 603-09. The ALJ explained that although Plaintiff consistently reports that he experiences seizures, the record does not contain any indication Plaintiff has reported experiencing seizures to a medical provider and/or sought treatment for the same since 2015. AR 39, 43, 285-86, 847.
In June 2015, upon being released from hospitalization following his accident, his mental status examination was relatively normal. AR 38, 523, 527-28, 648. Plaintiff was provided resources for substance abuse treatment and agreed to seek the same. AR 523, 527-28. In a follow-up appointment the following month, Plaintiff's mental and physical examinations were relatively normal, though he reported struggling with mood and depression. AR 38, 567. Plaintiff agreed to try Wellbutrin as that had previously worked well with his depression. AR 567.
Plaintiff did not receive additional treatment until almost one year later when he sought to check himself into a psychiatric facility. AR 39, 352-54. Plaintiff's mental status and neurological examinations were relatively normal, although he had a high blood alcohol content and suicidal ideations. AR 39, 344-53. Plaintiff was treated with medication and his condition improved. AR 39, 343, 375, 497-98. He was released to a crisis center but Plaintiff testified that he never received treatment at a crisis center. AR 39, 75-76, 499.
In May 2017, Plaintiff was treated for anxiety and depression. AR 39, 846-48. Plaintiff was prescribed Latuda for bipolar disorder, Diazepam for anxiety, and Zolpidem for insomnia. AR 39, 847-48. In a follow-up appointment the following month, Plaintiff reported the Valium (Diazepam) and Latuda were helping. AR 39, 849-52. His mental, neurological, and physical examinations were relatively normal. AR 39, 851-52.
On August 5, 2017, Plaintiff went to the emergency room intoxicated, complaining of falls, claiming to be suicidal, and stating that he drank a pint of alcohol per day, took Valium, and an anti-depressant. AR 40, 674-76. The physician noted a depressed affect and a physical examination and CT were normal, beyond his intoxication. AR 40, 674-85. He was placed on alcohol withdrawal protocol, administered thiamine, a multivitamin, and folic acid. AR 40, 672-73, 675. Discharge paperwork indicates that he was being released on August 10, 2017, to the crisis center, which had verified it could accept him as a patient on that date, but Plaintiff testified that he never received treatment at said center. AR 40, 75-76, 672-73.
At the end of November 2017, Plaintiff presented to the Integris Emergency Department with suicidal ideation. AR 40, 701-08. Plaintiff also explained that his wife had initially dropped him off at Oakwood Springs for an assessment because he had an attorney assisting him with a disability application had suggested he seek mental health treatment or an assessment. AR 40, 706. He was willingly admitted for inpatient psychiatric treatment and was started on Zoloft for depression and Trazodone for insomnia. AR 40, 703-04. He was discharged on December 4, 2017, in stable condition and a normal mental status examination. AR 40-41, 704-05. Upon discharge, he was prescribed Sertraline and Trazadone. Id. Plaintiff was referred to family counseling in January 2018 for the purpose of his driver's license reinstatement but no records indicate he ever sought said counseling. AR 41, 854.
Plaintiff underwent psychological consultative examinations in January and February 2017, each of which support the ALJ's RFC and credibility analysis. AR 41-42, 656-58, 659-62, 665-68. At one of the consultative examinations, the physician performed the Montreal Cognitive Assessment to measure Plaintiff's cognitive function and Plaintiff fell within the average range. AR 42, 667-68.
The ALJ also considered Plaintiff's reported daily activities, indicating that he was able to care for his personal needs and grooming, take care of his wife, son, and his son's friends, performs light household cleaning, prepares easy meals, goes out almost daily, pays bills, attends his son's scout meetings, does well with changes in routine, and provides emotional support. AR 42, 296-99, 301. Contrary to a portion of his testimony, Plaintiff also reported that he can walk a mile and rest about thirty seconds before resuming walking. AR 42-43, 65, 300. The ALJ also noted that while Plaintiff claims that he cannot drive because of his seizure disorder, the medical record does not contain any ongoing driving restrictions and Plaintiff received a DUI in August 2017. AR 43, 298, 706.
Finally, the ALJ considered Plaintiff's employment history in finding his reported symptoms were not fully credible. AR 43. Although Plaintiff quit his job in July 2015, he was applying to other jobs and there is evidence in the record indicating he last worked in April 2016. AR 43, 567, 665.
In reviewing the ALJ's decision as a whole, as well as the record in this matter, it is clear the ALJ's determination that Plaintiff's reported symptoms were not fully credible is supported by substantial evidence. "[T]he ALJ's decision referred to specific evidence in support of its conclusions," see Keyes-Zachary v. Astrue, 695 F.3d 1156, 1170 (10th Cir. 2012), and Plaintiff has failed to show any cause for this Court to disturb the same. Accordingly, Plaintiff's claim of error based on the ALJ's credibility analysis should be denied.
In view of the foregoing findings, it is recommended that judgment enter affirming the decision of the Commissioner. Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court on or before February 13th, 2020, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
