Opinion
Case No. 2:01-CV-00618-DS
March 25, 2003
MEMORANDUM DECISION AND ORDER
I. INTRODUCTION
Plaintiff, pursuant to 42 U.S.C. § 405 (g), seeks judicial review of the decision of the Commissioner of Social Security (the "Commissioner") denying his claim for Disability Insurance Benefits and Supplemental Security Income. Plaintiff claims disability allegedly beginning January 15, 1997 due to hepatitis, bipolar disorder, fatigue, leg and back pain, and leg numbness. Plaintiff's application was denied initially and upon reconsideration. A hearing was held on February 16, 2000 at which Plaintiff appeared and was represented by counsel. In a decision dated August 23, 2000, the Administrative Law Judge ("ALJ") denied benefits, concluding that although plaintiff was unable to return to his past work as a plumber's helper, off shore cook, and roofer, he retained the residual functional capacity ("RFC") to perform other jobs available in significant numbers within the national economy and, therefore, Plaintiff was not disabled for purposes of the Social Security Act. The Appeals Council denied Plaintiff's subsequent request for review.
II. STANDARD OF REVIEW
The court reviews the Commissioner's decision to evaluate whether the record contains substantial evidence to support the findings, and to determine whether the correct legal standards were applied. Pacheco v. Sullivan, 931 F.2d 695, 696 (10th Cir. 1991) Substantial evidence to support the Commissioner's decision that plaintiff is not disabled is "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Broadbent v. Harris, 698 F.2d 407, 414 (10th Cir. 1983) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In reviewing the Commissioner's decision, the court cannot weigh the evidence or substitute its discretion for that of the Commissioner, but the court has the duty to carefully consider the entire record and make its determination on the record as a whole. Dollar v. Bowen, 821 F.2d 530, 532 (10th Cir. 1987).
Disability is defined as the "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 twelve months." 42 U.S.C. § 423 (d)(1)(A). The Commissioner has established a five-step sequential evaluation process to determine if a claimant is disabled. Reyes v. Bowen, 845 F.2d 242, 243 (10th Cir. 1988) (listing five steps); 20 C.F.R. § 404.1520, 416.920. The first step is to decide whether the claimant is currently engaged in substantial gainful employment. The second step is to decide whether the claimant's impairments are severe. The third step is to decide whether the impairments meet or equal one of the listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. The fourth step is to decide whether the claimant's impairments prevent him from performing his past relevant work. The fifth and last step is to decide whether the claimant could engage in other substantial gainful activity considering his age, education, and past work experience. If a claimant is determined to be disabled or not disabled at any step, the evaluation process ends there. Sorenson v. Bowen, 888 F.2d 706, 710 (10ty Cir. 1989). The burden of proof is on the claimant through step four; then it shifts to the Commissioner. See id. (citing Ray v. Bowen, 865 P.2d 222, 224 (10th Cir. 1989))
III. DISCUSSION
A. The ALJ's Decision.
At step one, the ALJ found that plaintiff had not performed substantial gainful activity since the onset of his disability. At step 2 the ALJ concluded plaintiff has severe impairments pursuant to the applicable regulations. The ALJ determined, at the third step, that claimant's severe impairments met Listing 12.09 and are, thus, included among the impairments listed in Appendix 1 of Subpart P, Regulation No. 4. The ALJ concluded, however, that plaintiff's drug addiction and/or alcoholism was a material factor in plaintiff's impairments because he would not be disabled if he avoided using drugs and alcohol. The Social Security Act, as amended in 1996, 42 U.S.C. § 423 (d)(2)(C) and 1382c(a)(3)(J) (Supp. 2002), precludes an award of disability benefits for disabilities resulting from drug addiction or alcoholism. Therefore, plaintiff was not determined to be disabled for purposes of qualifying for disability benefits at step three. Applying the fourth step, the ALJ found that, even in the absence of plaintiff's drug addiction and/or alcoholism, he could not perform his past relevant work. Finally, at the fifth step, the ALJ concluded that, based upon plaintiff's age, education, and skills, and in the absence of drug and alcohol abuse, plaintiff could perform the sedentary and unskilled jobs of surveillance system monitor, touch-up screener, and semi-conductor bonder. Moreover, the ALJ found that these jobs exist in significant numbers within the national economy. The ALJ, therefore, denied plaintiff's application for Disability Insurance Benefits and Supplemental Security Income payments. Plaintiff disputes the ALJ's findings at steps three and five.
B. Treating Physician Rule — Dr. David McKenzie.
Plaintiff first claims that the ALJ improperly discounted the residual functional capacity (RFC) assessment of David McKenzie, M.D., whom Plaintiff characterizes as one of his treating physicians. Dr. McKenzie's RFC report dated February 10, 2002 generally reflects that Plaintiff has numerous ailments and limitations which impact his ability to hold a job. (R. 331-34). Dr. McKenzie noted that Plaintiff suffers from Hepatitis B C, lower back and hip pain, bipolar disorder, pulmonary disease, and vascular disease that would affect Plaintiff's ability to work at a job. Dr. McKenzie opined that Plaintiff is able to continuously sit and stand for no more than 30 minutes at a time, sit and stand less than 2 hours in an 8 hour work day, would need to recline at least 6 hours in an 8 hour work day, would need to be able to shift positions as needed between sitting, standing, and walking, and must be able to walk 15 minutes.
The ALJ must give substantial weight to the evidence and opinions of the claimant's treating physicians unless good cause is shown for finding to the contrary. Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987). See also Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir 2001) ("ALJ is required to give controlling weight to a treating physician's well-supported opinion, so long as it is not inconsistent with other substantial evidence in the record"). A treating physician's opinion may be rejected if it is not "well supported by clinical and laboratory diagnostic techniques" and if inconsistent with other substantial evidence of record. Castellano v. Secretary of Health Human Servs., 26 F.3d 1027, 1029 (10th Cir 1994); Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995)
The ALJ considered, but discounted, the opinion of Dr. McKenzie. The record reflects that Dr. McKenzie was one of many physicians who treated Plaintiff, and as the Commissioner notes, "his name does not appear as the examining physician on any of the clinical examination notes". (Def. Mem. at 16). Considering the entire record, including the opinions of all of claimant's examining physicians and other doctors, the ALJ stated as follows.
In this case, it is clear that the limitations that are found to reach listing level severity are related to alcohol use and it is equally clear that the claimant does not meet a listing in the absence of alcohol. While David B. McKenzie opined that the claimant did not have the capacity to work on [sic] sustained basis, the doctor never opined that such was a [sic] case in the absence of alcohol and drug abuse. (Exhibit 20F). Moreover, while taking alcohol and drugs, the claimant was assessed with a Global Assessment of Function (GAF) of 32 (Exhibit 12). Taking administrative notice of the Diagnostic and Statistical Manual of Mental Disorders . . . this score is within a lower range suggesting of some impairment in reality testing or communication. Later GAF's, when the claimant [sic] no longer taking alcohol or drugs, were assessed at 65 which indicates only "mild" symptoms. Such a significant change suggests that the claimant's limits were not disabling when the claimant did not take alcohol or drugs.
(R. 15)
A review of the entire record reflects substantial evidence supportive of the ALJ's decision. Plaintiff has a long history of alcohol and substance abuse addiction with multiple rehabilitation attempts. (See e.g., R. 91-117). On March 13, 1998, Plaintiff was admitted at the V.A. Medical Center for "detoxification and rehabilitation". (R. 128). Examination of Plaintiff's physical well-being was normal except for some abdominal tenderness and abrasions and bruising of his skin. (R. 125-129). His diagnosis included drug and alcohol dependence and abuse, depression and Hepatitis A, B and C. (R. 125). When he was discharged on March 23, 1998 he had "improved much". (R. 130). He had a GAF score of 80, improved from a score of 45 on intake. (R. 130). A chest xray taken on March 30, 1998 was essentially normal. (R. 153).
In September 1998, Plaintiff presented with complaints of liver pain and fatigue. (R. 157-164). Lab test indicated chronic active viral and alcoholic hepatitis. (R. 158, 163). An abdominal ultrasound and liver flow study were normal. (R. 160). Plaintiff was advised that his hepatitis was likely related to alcohol. (R. 157).
In December 1998, Plaintiff reported that "his sleep and mood were much better on the Gabapentin.". (R. 213). On December 10, 1998 Dale Sterner, an addictions therapist, noted that Plaintiff complained of "fatigue on exertion, [but was] willing to `try' working". (R. 207). Mr. Sterner noted that Plaintiff "[m]ay be malingering, doubt if physical status is as dire as patient presents." (R. 207).
In April 1999, Plaintiff sought treatment for another alcohol relapse. (R. 225, 292-325). On admission, Plaintiff's physical examination was normal except for some diffuse expiratory wheezes in the lungs. (R. 226). tIe reported having visual and auditory hallucinations, and suicidal thoughts. (R. 225, 292). He underwent detoxification, and was much improved by the time he was discharged on April 22. (R. 226-27)
On June 12, 1999 Plaintiff saw Brian E. Staley, M.D., in a consultative examination at the request of the Disability Determination Services. (R. 229-34). Dr. Staley opined that Plaintiff had "no symptoms or objective evidence of liver failure" due to hepatitis, that Plaintiff's "fatigue seems to be mild, and . . . [was not] significantly limiting his level of functioning", and that his bipolar disorder "appears by history and exam to be well controlled on his current medications". (R. 232-33). Plaintiff's right hip and leg pain was "not limiting his ability to walk for long distances as much as his shortness of breath" and he did not need a supportive device to walk. (R. 233). Plaintiff's shortness of breath "seem[ed] mild to moderate" and he was encouraged to stop smoking. (R. 233).
On June 15, 1999 Plaintiff saw Louis F. Morse, Ph.D. for a psychological evaluation at the request of the Disability Determination Services ("DDS"). (R. 235-38). Dr. Morse opined that Plaintiff "did not show significant signs of [bipolar) disorder", he "demonstrated normal social skills", and "he was able to understand, remember and follow simple instructions". (R. 238).
The DDS non-examining medical consultants who reviewed the evidence in June and July of 1999 concluded, among other things, that Plaintiff had the physical RFC to lift and carry up to 50 pounds occasionally and 25 pounds frequently, and that he could sit, stand and walk with normal breaks a total of 6 hours each during an 8 hour day. (R. 239-46). As to Plaintiff's mental RFC they concluded that Plaintiff was not significantly limited in his ability to understand, remember, and carry out short and simple instructions. (R. 256-59). It was concluded that Plaintiff was moderately limited relative to understanding and carrying out detailed instructions, maintaining attention and concentration for extended periods. (Id.). It was further concluded that he had "a severe impairment which seems to be primarily substance abuse and in addition bipolar II". (R. 259).
In September of 1999, Plaintiff had a compensation/pension evaluation at the V.A. Medical Center. (R. 260-262). The clinical assessment was chronic obstructive pulmonary disease with chronic emphysema due to cigarette smoking, alcohol dependence, ischemic peripheral vascular disease with absent peripheral pulses in the right leg and diminished peripheral pulses in the left leg, chronic hepatitis on the basis of chronic alcoholism, and history of bipolar affective disorder. (R.262). Plaintiff had minimal paravertebral tenderness of the low lumbar spine on the right. (R. 283). Straight leg raise testing elicited pain at 60 degrees, and range of motion testing of the lumbar spine reflected some minimal right-sided tenderness and limitation of motion. (R. 283-84). There was no tenderness of the hips, and adequate range of hip motion. (R. 284). X-rays of the hip were normal except for minimal vascular calcifications. (R. 326). Pulmonary function studies reflected mild restriction with no obstruction, and severe reduction of diffusing capacity of the lungs for carbon monoxide, consistent with lung disease. (R. 268-71).
In sum, the court concludes that based on the record as a whole, substantial evidence of record exists such that the ALJ had a sufficient basis or good cause to discount the opinion of Dr. McKenzie. The court further concludes, contrary to Plaintiff's assertion, that the record was sufficiently adequate for the ALJ to make his determination.
C. Cumulative Effect of Plaintiff's Impairments.
Plaintiff next contends that the ALJ failed to consider the cumulative effect of his combined impairments which Plaintiff asserts meet a medical equivalence of a Listing impairment. Plaintiff, however, fails to identify which Listing he believes his combined impairments meet.
The ALJ found that due to alcoholism and drug abuse, "the claimant had behavioral changes or physical changes sufficient to meet Listing 12.09" (R.14). However, the ALJ concluded in the absence of alcoholism and drug abuse, Plaintiff had the residual functional capacity to perform a significant number of jobs in the national economy and, therefore, he was not disabled for purposes of the Act. The Social Security Act, as amended in 1996, precludes an award of disability benefits for disabilities resulting from drug addiction or alcoholism. 42 U.S.C. § 423 (d)(2). The `key factor . . . in determining whether alcoholism or drug addiction is a contributing factor material to the determination of disability" is whether an individual would still be found disabled if he stopped using alcohol or drugs. 20 C.F.R. § 404.1535 (b)(1), 416.935(b)(1). The claimant bears the burden of proving that his drug or alcohol addiction is not a contributing factor material to the determination of disability. Brown v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999)
The court agrees with the Commissioner that substantial evidence of record supports the conclusion that Plaintiff's alcohol and drug abuse played a significant role in his condition and were material factors contributing to his functional limitation and that Plaintiff's impairments were not disabling absent drug and alcohol abuse. (See generally, R. 91-92, 94-100, 117-129, 130-141, 142-155, 157-164, 165-172, 183, 191, 194, 195, 200, 213, 219, 233, 235-238, 239-246, 247-255, 256-259, 260-275, 305, 307)
Substantial evidence also supports the conclusion that jobs were available in the national economy that someone with Plaintiff's limitations could perform. The ALJ properly solicited the testimony of a vocation expert, who opined that an individual of Plaintiff's age, education, vocational experience, and credible physical and mental limitations could perform certain specific jobs available in sufficient numbers in the national economy. The ALJ was entitled to consider vocational expert testimony as evidence of jobs Plaintiff could perform.Ellison v. Sullivan, 929 F.2d 534, 537 (10th Cir 1990).
IV. CONCLUSION
The court is of the opinion that the Commissioner's decision is supported by substantial evidence of record and is not the result of any legal error which has been brought to the court's attention. Therefore, based on the foregoing reasons as well as the Commissioner's opposing memorandum in general, Plaintiff's complaint is DISMISSED and the Commissioner's decision to deny Plaintiff's claim of disability insurance benefits is AFFIRMED.