Maxfield v. Commissioner of Social Security, No. 2:2018cv00035 - Document 15 (E.D. Wash. 2019)
Court Description: ORDER GRANTING, IN PART, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 13 ) AND REMANDING FOR ADDITIONAL PROCEEDINGS and denying ECF No. 14 Defendant's Motion for Summary Judgment. File closed. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)
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Maxfield v. Commissioner of Social Security Doc. 15 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Feb 11, 2019 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK 4 5 DAVID M., No. 2:18-CV-0035-JTR 6 Plaintiff, 7 v. 8 9 10 COMMISSIONER OF SOCIAL SECURITY, 11 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS Defendant. 12 13 BEFORE THE COURT are cross-motions for summary judgment. ECF 14 No. 13, 14. Attorney Lora Lee Stover represents David M. (Plaintiff); Special 15 Assistant United States Attorney Leisa A. Wolf represents the Commissioner of 16 Social Security (Defendant). The parties have consented to proceed before a 17 magistrate judge. ECF No. 12. After reviewing the administrative record and the 18 briefs filed by the parties, the Court GRANTS, IN PART, Plaintiff’s Motion for 19 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 20 REMANDS the matter to the Commissioner for additional proceedings pursuant to 21 42 U.S.C. § 405(g). 22 JURISDICTION 23 On April 30, 2015,1 Plaintiff filed applications for disability insurance 24 benefits and supplemental security income benefits, alleging disability since 25 August 1, 2011, due to depression, anxiety, HBP (high blood pressure), bad heart, 26 27 28 1 While the ALJ’s decision refers to the application dates as March 20, 2015, Tr. 19, 29, the record reflects application dates of April 30, 2015, Tr. 194, 201. ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 severe pain, meningitis, substance abuse, and a broken hand. Tr. 194, 201, 227. 2 Plaintiff’s applications were denied initially and upon reconsideration. 3 Administrative Law Judge (ALJ) Jesse K. Shumway held a hearing on 4 February 8, 2017, Tr. 37-74, and issued an unfavorable decision on March 24, 5 2017, Tr. 19-30. The Appeals Council denied review on December 8, 2017. Tr. 2- 6 7. The ALJ’s March 2017 decision thus became the final decision of the 7 Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 8 405(g). Plaintiff filed this action for judicial review on January 30, 2018. ECF 9 No. 1, 4. STATEMENT OF FACTS 10 The facts of the case are set forth in the administrative hearing transcript, the 11 12 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 13 here. 14 Plaintiff was born on September 26, 1984, and was 26 years old on the 15 alleged onset date, August 1, 2011. Tr. 194. He completed high school and two 16 years of college and additionally has specialized job training in welding. Tr. 60, 17 228. Plaintiff’s disability report indicates he stopped working on August 31, 2011, 18 because of his conditions. Tr. 227. Plaintiff stated he had no physical barriers to 19 employment, Tr. 60, but he previously had meningitis which affected his memory, 20 Tr. 62, and anxiety, ADHD and depression caused him to have a difficult time 21 being around people, Tr. 64-66. 22 Plaintiff testified at the February 8, 2017, administrative hearing that he had 23 been abstinent from illegal substances for the six months preceding the hearing 24 (since September 2016), but had not been sober for any significant period of time 25 prior to that date. Tr. 53. However, the record reflects Plaintiff had positive UA 26 results as recently as October 5, 2016, and November 22, 2016. Tr. 53-54. 27 Plaintiff explained he had been prescribed Vyvanse, an amphetamine, and 28 Clonidine, a benzodiazepine. Tr. 54-55. ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 2 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 3 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 4 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 5 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 6 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 7 only if it is not supported by substantial evidence or if it is based on legal error. 8 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 9 defined as being more than a mere scintilla, but less than a preponderance. Id. at 10 1098. Put another way, substantial evidence is such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion. Richardson v. 12 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 13 rational interpretation, the Court may not substitute its judgment for that of the 14 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 15 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 16 administrative findings, or if conflicting evidence supports a finding of either 17 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 18 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 19 supported by substantial evidence will be set aside if the proper legal standards 20 were not applied in weighing the evidence and making the decision. Brawner v. 21 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 22 SEQUENTIAL EVALUATION PROCESS 23 The Commissioner has established a five-step sequential evaluation process 24 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen 25 v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 26 proof rests upon the claimant to establish a prima facie case of entitlement to 27 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once a 28 claimant establishes that physical or mental impairments prevent him from ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 engaging in his previous occupation. 20 C.F.R. § 416.920(a)(4). If a claimant 2 cannot do his past relevant work, the ALJ proceeds to step five, and the burden 3 shifts to the Commissioner to show that the claimant can perform other jobs 4 present in significant numbers in the national economy. Batson v. Commissioner 5 of Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot 6 make an adjustment to other work in the national economy, a finding of “disabled” 7 is made. 20 C.F.R. § 416.920(a)(4)(v). 8 ADMINISTRATIVE DECISION 9 On March 24, 2017, the ALJ issued a decision finding Plaintiff was not 10 disabled as defined in the Social Security Act. The ALJ found at step one that Plaintiff has not engaged in substantial 11 12 gainful activity since his alleged onset date. Tr. 21. At step two, the ALJ 13 determined that Plaintiff had polysubstance abuse, a severe impairment. Tr. 22. 14 At step three, the ALJ found Plaintiff did not have an impairment or combination 15 of impairments that meets or medically equals the severity of one of the listed 16 impairments. Tr. 22. 17 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 18 determined, based on his impairments, including the substance use disorders, 19 Plaintiff could perform a full range of work at all exertional levels with the 20 following limitations: he is limited to simple, routine, repetitive tasks; he can have 21 no interaction with the public and limited contact with coworkers and supervisors; 22 and he would likely be off task 10% of the workday and would miss more than two 23 days of work each month because of his impairments. Tr. 23. At step four, the ALJ determined Plaintiff could not perform his past 24 25 relevant work as a welder or research assistant. Tr. 24. At step five, the ALJ 26 determined that based on the testimony of the vocational expert, and considering 27 all of Plaintiff’s impairments, including the substance use disorders, Plaintiff was 28 /// ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 1 not able to make a successful vocational adjustment to work that exists in 2 significant numbers in the national economy. Tr. 24-25. 3 However, the ALJ determined Plaintiff’s polysubstance abuse was material 4 to the determination of disability. Tr. 29. The ALJ concluded Plaintiff has no 5 severe, medically determinable impairments, absent consideration of Plaintiff’s 6 substance use disorder. Tr. 25-29. The ALJ specifically found Plaintiff continued 7 to use a variety of intoxicating substances throughout the alleged period of 8 disability and thus there was no extended period of sobriety sufficient to evaluate 9 his symptoms in the absence of such use. Tr. 27. Accordingly, the ALJ 10 determined, at step two of the sequential evaluation process, that Plaintiff was not 11 disabled within the meaning of the Social Security Act. Tr. 29-30. ISSUE 12 13 The question presented is whether substantial evidence supports the ALJ’s 14 decision denying benefits and, if so, whether that decision is based on proper legal 15 standards. Plaintiff contends the ALJ erred by failing to identify that Plaintiff had 16 severe mental impairments and by finding Plaintiff’s substance abuse was a 17 material factor contributing to the disability. ECF No. 13 at 10. DISCUSSION2 18 19 20 Plaintiff asserts the ALJ erred by concluding he did not have a severe mental impairment other than substance abuse. ECF No. 13 at 13. Defendant argues the 21 22 2 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 ALJ properly assigned substantial weight to the testimony of non-examining 2 medical expert Glenn Griffin, Ph.D., to find Plaintiff did not have a severe 3 impairment, absent substance abuse. ECF No. 14 at 4-9. 4 The Social Security Act bars payment of benefits when drug addiction 5 and/or alcoholism (DAA) is a contributing factor material to a disability claim. 42 6 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J); Sousa v. Callahan, 143 F.3d 1240, 1245 7 (9th Cir. 1998). When there is medical evidence of substance abuse, the ALJ must 8 conduct a DAA analysis and determine whether DAA is a material factor 9 contributing to the disability. 20 C.F.R. §§ 404.1535(a), 416.935(a). In order to 10 determine whether DAA is a material factor contributing to the disability, the ALJ 11 must evaluate which of the current physical and mental limitations would remain if 12 the claimant stopped using drugs or alcohol, then determine whether any or all of 13 the remaining limitations would be disabling. 20 C.F.R. §§ 404.1535(b)(2), 14 416.935(b)(2). If the remaining limitations without DAA would still be disabling, 15 then the claimant’s drug addiction or alcoholism is not a contributing factor 16 material to his disability. If the remaining limitations would not be disabling 17 without DAA, then the claimant’s substance abuse is material and benefits must be 18 denied. Parra v. Astrue, 481 F.3d 742, 747-748 (9th Cir. 2007). “The claimant 19 bears the burden of proving that drug or alcohol addiction is not a contributing 20 factor material to his disability.” Id. at 748. 21 Social Security Ruling (SSR) 13-2p, 2013 WL 621536, provides guidance 22 for evaluating whether a claimant’s substance use is material to the disability 23 determination. It instructs adjudicators to “apply the appropriate sequential 24 evaluation process twice. First, apply the sequential process to show how the 25 claimant is disabled. Then, apply the sequential evaluation process a second time 26 to document materiality.” Id. at *6. Although SSRs do not have the force of law, 27 they “constitute Social Security Administration interpretations of the statute it 28 administers and of its own regulations,” and are given deference “unless they are ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 2 F.2d 1453, 1457 (9th Cir. 1989). 3 SSR 13-2p provides that the key factor to examine in determining whether 4 DAA is a contributing factor material to the disability determination is whether the 5 claimant would still be found disabled if he stopped using drugs or alcohol. SSR 6 13-2p, 2013 WL 621536 at *4. The ALJ must project the severity of a claimant’s 7 other impairments in the absence of DAA, and, in making this determination, the 8 ALJ should consider medical judgments about the likely remaining medical 9 findings and functional limitations the claimant would have in the absence of 10 DAA. Id. at *7, *9. SSR 13-2p indicates that in cases involving physical 11 impairments, an ALJ may consider treating or non-treating medical source 12 opinions about the likely effects that abstinence from drugs or alcohol would have 13 on the claimant’s impairments; however, in cases involving mental impairments, 14 the ALJ may not consider such predictions. SSR 13-2p, 2013 WL 621536 at *8, 15 n.19. 16 SSR 13-2p states that “[m]any people with DAA have co-occurring mental 17 disorders; that is, a mental disorder(s) diagnosed by an acceptable medical source 18 in addition to their DAA. We do not know of any research data that we can use to 19 predict reliably that any given claimant’s co-occurring mental disorder would 20 improve, or the extent to which it would improve, if the claimant were to stop 21 using drugs or alcohol.” Id. at *9. “To support a finding that DAA is material, we 22 must have evidence in the case record that establishes that a claimant with a co- 23 occurring mental disorder(s) would not be disabled in the absence of DAA.” Id. 24 While ALJs may seek assistance from medical experts in interpreting the medical 25 evidence regarding the separate effects of treatment for DAA and a co-occurring 26 mental disorder, SSR 13-2p, 2013 WL 621536 n.28, an ALJ may not rely 27 exclusively on medical expertise and the nature of a claimant’s mental disorder to 28 determine whether DAA is material, SSR 13-2p, 2013 WL 621536 at *9. ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 In this case, the ALJ did not reference SSR 13-2p in the decision and relied 2 exclusively on medical expert Griffin to find that Plaintiff’s polysubstance abuse 3 was the only medically determinable psychiatric impairment. Tr. 26-27. This 4 methodology is inconsistent with the guidance provided by SSR 13-2p, 2013 WL 5 621536 at *9, and, in any event, the ALJ’s step two conclusion is contrary to the 6 weight of the record evidence. See infra. 7 Plaintiff has the burden of proving he has a severe impairment at step two of 8 the sequential evaluation process. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 9 423(d)(1)(A), 416.912. In order to meet this burden, Plaintiff must furnish medical 10 and other evidence that shows he has a severe impairment. 20 C.F.R. § 11 416.912(a). The regulations, 20 C.F.R. §§ 404.1520(c), 416.920(c), provide that 12 an impairment is severe if it significantly limits one’s ability to perform basic work 13 activities. An impairment is considered non-severe if it “does not significantly 14 limit your physical or mental ability to do basic work activities.” 20 C.F.R. §§ 15 404.1521, 416.921. 16 Step two is “a de minimis screening device [used] to dispose of groundless 17 claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). An ALJ may find 18 a claimant lacks a medically severe impairment or combination of impairments 19 only when this conclusion is “clearly established by medical evidence.” SSR 85- 20 28 (1985); Webb v. Barnhart, 433 F.3d 683, 686-687 (9th Cir. 2005). In reviewing 21 the claimed error, the Court must consider whether the record includes evidence of 22 a severe impairment and, if so, whether the ALJ’s response to that evidence was 23 legally correct. 24 25 A consultative psychiatric examination was performed by Elizabeth Koenig, M.D., on June 28, 2015.3 Tr. 353-362. Dr. Koenig diagnosed Schizoaffective 26 27 28 3 The ALJ accorded Dr. Koenig’s opinion “little weight” because it failed to consider the full effect of Plaintiff’s ongoing substance abuse. Tr. 23. However, a ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 Disorder, Bipolar Type, multiple episodes, currently depressed versus Bipolar II 2 Disorder, current episode depressed, mild to moderate, with mild to moderate 3 anxious distress, psychotic symptoms and possible occasional panic (rule out due 4 to meningitis); Attention Hyperactivity Disorder, combined presentation, 5 provisional; polysubstance use and dependence; and rule out specific learning 6 disorder. Tr. 360-361. Dr. Koenig specifically indicated Plaintiff “clearly has 7 numerous challenges, not all of which can be explained by illicit drug use.” Tr. 8 361. 9 Reviewing state agency medical professionals Leslie Postovoit, Ph.D., and 10 Jerry Gardner, Ph.D., indicated in July 2015 and September 2015, respectively, 11 that Plaintiff suffered from severe impairments of substance addiction disorders, 12 anxiety disorders, and affective disorders. Tr. 89-90, 111-113. The ALJ 13 determined the medical professionals’ opinions that Plaintiff had severe mental 14 impairments in addition to his polysubstance abuse was not consistent with 15 Plaintiff’s long history of substance abuse and the testimony of Dr. Griffin. Tr. 28. 16 17 John F. Arnold, Ph.D., completed a Psychological/Psychiatric Evaluation form on October 20, 2015.4 Tr. 437-442. Dr. Arnold diagnosed Unspecified Mood 18 19 20 review of Dr. Koenig’s report indicates Dr. Koenig fully acknowledged and 21 considered Plaintiff’s substance abuse. Tr. 353-362. 22 4 The ALJ gave “little weight” to Dr. Arnold’s “checkbox form” noting it 23 failed to contain meaningful analysis of the impact of Plaintiff’s substance abuse 24 and provided little explanation for the limitations described. Tr. 28. However, Dr. 25 Arnold’s report states that Plaintiff “has had severe, chronic problems with illicit 26 narcotic pain medications and other drugs, which has probably had a significant 27 impact on his mental health and ability to function” and further indicates Plaintiff 28 reported he was “in a partial recovery from opioids, but he has continued to have ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 Disorder; Rule Out Bipolar; Unspecified Anxiety Disorder; Opioid Use Disorder 2 (severe) on Agonist Therapy; Rule Out Cannabis Use Disorder; and an anti-social 3 personality disorder, and also assessed numerous moderate and marked work 4 limitations. Tr. 438-439. 5 In October 2015, Dana Harmon, Ph.D., opined it was possible Plaintiff’s 6 depression, anxiety, and substance-induced dementia would persist even with a 7 stable recovery, but also concluded there was no reliable evidence of a mental 8 disorder distinct from the impacts of Plaintiff’s chemical dependency. Tr. 28, 982- 9 983. 10 It is apparent from the foregoing medical evidence that Plaintiff’s claim of 11 severe mental impairments, other than substance abuse, was not “groundless.” 12 Smolen, 80 F.3d at 1290. The record reflects mental problems sufficient to pass 13 the de minimis threshold of step two of the sequential evaluation process. Id. 14 Accordingly, the Court finds the ALJ erred in assigning substantial weight to the 15 testimony of medical expert Griffin to find Plaintiff’s polysubstance abuse was the 16 only medically determinable psychiatric impairment. See SSR 13-2p, 2013 WL 17 621536 at *9 (in cases involving mental impairments, an ALJ may not rely 18 exclusively on medical expertise and the nature of a claimant’s mental disorder to 19 determine whether DAA is material). 20 Pursuant to SSR 13-2p, DAA is not material “if the record is fully developed 21 and the evidence does not establish that the claimant’s co-occurring mental 22 disorder(s) would improve to the point of nondisability in the absence of DAA.” 23 There are presently no medical records showing whether Plaintiff’s mental 24 impairments improved or would likely improve in the absence of DAA. Although 25 the Court finds the ALJ erred at step two, it is not clear from the record, as it 26 27 significant relapses and he continues to use marijuana ‘pretty regularly.’” Tr. 442. 28 Plaintiff’s substance abuse was wholly considered by Dr. Arnold. ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 currently stands, whether Plaintiff’s severe mental impairments, either singly or in 2 combination, would prevent him from performing substantial gainful employment, 3 in the absence of DAA. The Court finds this matter must be remanded for 4 additional proceedings in order for the ALJ to take into consideration Plaintiff’s 5 mental impairments and the limitations those impairments have on Plaintiff’s 6 functionality. 7 8 CONCLUSION Plaintiff argues the ALJ’s decision should be reversed and remanded for an 9 award of benefits or, alternatively, for additional proceedings. ECF No. 13 at 3, 10 17. The Court has the discretion to remand the case for additional evidence and 11 findings or to award benefits. Smolen, 80 F.3d at 1292. The Court may award 12 benefits if the record is fully developed and further administrative proceedings 13 would serve no useful purpose. Id. Remand is appropriate when additional 14 administrative proceedings could remedy defects. Rodriguez v. Bowen, 876 F.2d 15 759, 763 (9th Cir. 1989). Here, the Court finds that further development is 16 necessary for a proper determination to be made. 17 As discussed above, the ALJ erred by finding Plaintiff’s polysubstance 18 abuse was his only medically determinable psychiatric impairment. Accordingly, 19 on remand, the ALJ shall readdress step two of the sequential evaluation process. 20 The ALJ shall then reevaluate whether Plaintiff’s DAA is a “material factor” 21 contributing to his disability, i.e., whether Plaintiff’s mental impairments would 22 disable him independent of the limitations resulting from DAA. 20 C.F.R. §§ 23 404.1535(a), 416.935(a). The ALJ shall reconsider the medical evidence of record 24 and develop the record further by directing Plaintiff to undergo a consultative 25 psychological examination, possibly with an individual who specializes in treating 26 or examining people who have substance use disorder or dual diagnoses of 27 substance use disorders and co-occurring mental disorders. See SSR 13-2p, 2013 28 WL 621536 at *11. The ALJ shall, reassess Plaintiff’s statements and testimony, ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 formulate a new RFC determination, and obtain supplemental testimony from a 2 vocational expert, if warranted. The ALJ may also take into consideration any 3 other evidence or testimony relevant to Plaintiff’s disability claim. 4 Accordingly, IT IS ORDERED: 5 1. 6 7 8 9 10 Plaintiff’s Motion for Summary Judgment, ECF No. 13, is GRANTED IN PART. 2. Defendant’s Motion for Summary Judgment, ECF No. 14, is DENIED. 3. The matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. 11 4. An application for attorney fees may be filed by separate motion. 12 The District Court Executive is directed to file this Order and provide a copy 13 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 14 the file shall be CLOSED. 15 DATED February 11, 2019. 16 17 18 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 12
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