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Finley v. Berryhill

United States District Court, D. New Mexico

March 11, 2019

GARTH ALAN FINLEY, GARY L. FINLEY, Ex Rel., His Deceased Son,, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security,, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING MOTION TO REMAND [1]

          STEVEN C. YARBROUGH UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 12) filed October 27, 2017, in support of Plaintiff Garth Alan Finley's (“Plaintiff”) Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, (“Defendant” or “Commissioner”) denying Plaintiff's claim for Title II disability insurance benefits and Title XVI supplemental security income benefits. On January 31, 2018, Plaintiff filed his Motion to Remand or Reverse (“Motion”). Doc. 18. The Commissioner filed a Response in opposition on May 2, 2018 (Doc. 22), and Plaintiff filed a Reply on May 16, 2018 (Doc. 24). The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the applicable law and being fully advised in the premises, the Court finds the Motion is well taken and is GRANTED.

         I. Background and Procedural Record

         Claimant Garth Alan Finley (“Mr. Finley”) alleged that he became disabled on July 31, 2008, at the age of thirty-eight because of Crohn's disease, irritable bowel syndrome, stomach ulcers, intestinal polyps, high blood pressure, elevated cholesterol, fainting and seizures, chronic depression and anxiety, and random periods of drinking alcohol. Tr. 219, 227.[2] Mr. Finley completed four of more years of college in 1995, and worked as an engineering consultant for NASCAR. Tr. 228-30, 236, 239-54.

         On February 23, 2009, Mr. Finley protectively filed his first application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401 et seq. (Tr. 115, 187-93.) Mr. Finley concurrently filed for Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 116.) Mr. Finley's applications were initially denied on August 18, 2009, and November 23, 2009, (Tr. 115-118, 123-27.) They were denied again at reconsideration on September 20, 2010, and March 21, 2011. (Tr. 119-22 130-33, 134-37.) On May 20, 2011, Mr. Finley requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 140-41.) ALJ Ben Willner conducted a hearing on July 12, 2012. (Tr. 33-80.) Mr. Finley appeared in person at the hearing with attorney representative Michael F. Becker. (Id.) On December 12, 2012, ALJ Willner issued an unfavorable decision. (Tr. 7-25.) On June 24, 2014, the Appeals Council issued its decision denying Mr. Finley's request for review and upholding the ALJ's final decision. (Tr. 1-5.) On August 18, 2014, Mr. Finley timely filed a Complaint seeking judicial review of the Commissioner's final decision. (See USDC NM Civ. No. 14-736 SCY (Doc. 1).)

         Upon judicial review, the Court reversed the Commissioner's decision and remanded Mr. Finley's claim to the Commissioner to conduct further proceedings. Tr. 1045-58. The Court instructed the Commissioner that on remand, “the ALJ shall ensure that all medical evidence in the record is considered at Step Four, Phases One and Two of the sequential analysis.” Tr. 1058.

         Before the ALJ rendered a new decision on remand, Mr. Finley filed second applications for DIB and SSI. Tr. 1257-58, 1263-68. Mr. Finley's second applications were initially denied on February 26, 2015. Tr. 1005, 1006, 1007-14, 1015-22, 1135. They were denied again at reconsideration on December 3, 2015. Tr. 990-1004, 1023, 1024, 1025-39, 1136-39, 1140-43. On January 27, 2016, Mr. Finley requested a hearing from an ALJ. Tr. 1144-45. On March 21, 2016, the Appeals Council entered an Order vacating the ALJ Willner's decision, and explained that

[t]he claimant filed subsequent claims for Title II and Title XVI benefits on December 9, 2014. The Appeals Council's action with respect to the current claim renders the subsequent claim duplicate. Therefore, the Administrative Law Judge will consolidate the claim files, create a single electronic record and issue a new decision on the consolidated claims (20 CFR 404.952 and 416.1452, HALLEX I-1-10-10). In compliance with the above, the Administrative Law Judge will offer the claimant the opportunity for a hearing, take any further action needed to complete the administrative record, will associate the claim files and issue a new decision on the associated claims.

         Tr. 1042. ALJ Lillian Richter conducted a hearing on February 2, 2017.[3] Tr. 911. Because Mr. Finley passed away prior to the hearing, Nancy Finley, Mr. Finley's mother, appeared on his behalf. Id. Mr. Finley was represented by Attorney Michael Armstrong. Id. On March 14, 2017, ALJ Richter issued an unfavorable decision. Tr. 908-26. Because this case had already been remanded following judicial review, Mr. Finley timely filed the instant action, rather than requesting review by the Appeals Council, as permitted by 20 C.F.R. § 416.1484(d). Doc. 1.

         II. Applicable Law

         A. Disability Determination Process

         An individual is considered disabled if he is unable “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) (pertaining to disability insurance benefits); see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income disability benefits for adult individuals). The Social Security Commissioner has adopted the familiar five-step sequential analysis to determine whether a person satisfies the statutory criteria as follows:

(1) At step one, the ALJ must determine whether the claimant is engaged in “substantial gainful activity.”[4] If the claimant is engaged in substantial gainful activity, he is not disabled regardless of his medical condition.
(2) At step two, the ALJ must determine the severity of the claimed physical or mental impairment(s). If the claimant does not have an impairment(s) or combination of impairments that is severe and meets the duration requirement, he is not disabled.
(3) At step three, the ALJ must determine whether a claimant's impairment(s) meets or equals in severity one of the listings described in Appendix 1 of the regulations and meets the duration requirement. If so, a claimant is presumed disabled.
(4) If, however, the claimant's impairments do not meet or equal in severity one of the listing described in Appendix 1 of the regulations, the ALJ must determine at step four whether the claimant can perform his “past relevant work.” Answering this question involves three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of the relevant medical and other evidence and determines what is “the most [claimant] can still do despite [her physical and mental] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant's residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3), 416.945(a)(3). Second, the ALJ determines the physical and mental demands of claimant's past work. Third, the ALJ determines whether, given claimant's RFC, the claimant is capable of meeting those demands. A claimant who is capable of returning to past relevant work is not disabled.
(5) If the claimant does not have the RFC to perform his past relevant work, the Commissioner, at step five, must show that the claimant is able to perform other work in the national economy, considering the claimant's RFC, age, education, and work experience. If the Commissioner is unable to make that showing, the claimant is deemed disabled. If, however, the Commissioner is able to make the required showing, the claimant is deemed not disabled.

See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4) (supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987). The burden shifts to the Commissioner at step five to show that the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).

         When, as here, there is medical evidence of drug addiction and alcoholism (DAA) in the record, the ALJ must add a sixth step to the evaluation. That step requires the ALJ to determine whether DAA is a “material contributing factor” to the claimant's disability. 20 C.F.R. §§ 404.1535(a) and 416.935(a). In making this determination, the “ay factor . . . is whether [the ALJ] would still find [claimant] disabled if [claimant] stopped using drugs or alcohol.” 20 C.F.R. §§ 404.1535(b)(1) and 416.935(b)(1); see also SSR 13-02p, 2013 WL 621536. The ALJ must identify which of the claimant's physical and/or mental limitations, upon which the threshold disability determination was based, would remain if the clamant stopped using drugs or alcohol. Then the ALJ must determine whether any or all of the remaining limitations would be disabling. 20 C.F.R. §§ 404.1535(b)(2), 416.935(b)(2). If the ALJ finds that a claimant's remaining limitations would not be disabling, then DAA is a “material contributing factor” to the claimant's disability, and the ALJ must find the claimant is not disabled. 20 C.F.R. §§ 404.1535(b)(2)(i), 416.935(b)(2)(i); see also SSR 13.02p. If the ALJ finds the remaining limitations would in and of themselves be disabling, then the ALJ must find that the claimant is disabled. 20 C.F.R. §§ 404.1535(b)(2)(ii), 416.935(b)(2)(ii).

         B. Standard of Review

         This Court must affirm the Commissioner's denial of social security benefits unless (1) the decision is not supported by “substantial evidence” or (2) the ALJ did not apply the proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Casias, 933 F.2d at 800-01. In making these determinations, the Court “neither reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.'” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). A decision is based on substantial evidence where it is supported by “relevant evidence . . . a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record[, ]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must “provide this court with a sufficient basis to determine that appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the evidence, ” and “the [ALJ's] reasons for finding a claimant not disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).

         III. Analysis

         The ALJ followed the proper sequential evaluation process by including alternative findings at step three, four and five of the sequential evaluation to account for Mr. Finley's limitations with and without DAA. The ALJ also made the sixth step finding required in such cases by determining whether Mr. Finley would still be disabled if he stopped using alcohol. At step one, the ALJ found that Mr. Finley met the insured status requirements through December 31, 2013, and had not engaged in substantial gainful activity since his alleged onset date of July 31, 2008. Tr. 914. At step two, the ALJ determined that Mr. Finley had severe impairments of right ankle and foot stress fracture and tendinopathy, ethanol dependence, anxiety, thumb tendonitis, chronic mild depression, chronic back pain with thoracic scoliosis, benzodiazepine dependence, bipolar disorder, and bilateral foot edema with right ankle pain. Id. The ALJ also found Mr. Finley had nonsevere impairments of hypercholesterolemia, hypercalcemia, benzodiazepine dependence [sic], and irritable bowel syndrome. Id. At step three, the ALJ determined that with or without considering DAA, Mr. Finley did not have an impairment or combination of impairments that meets or equals the severity of one of the presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 914-16, 918. At step four, the ALJ determined Mr. Finley's residual functional capacity including DAA as follows:

[a]fter careful consideration of the entire record, I find that, based on all of the impairments, including the substance use disorders, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). Specifically, he could lift, carry, push and pull 20 pounds occasionally and 10 pounds frequently, stand/walk for 6 hours and sit for 6 hours in an 8-hour day. Additionally, the claimant was limited to simple routine work, occasional interaction with supervisors and coworkers, and incidental interaction with members of the public. The claimant was limited to making simple work related decisions in a workplace with few changes in the routine work setting. The claimant could not perform work in tandem with other employees, and could not perform assembly line type work. The claimant might have missed work one time per week, might have been unable to remain on task, and would have been unable to deal with any change in the routine work setting.

Tr. 916. The ALJ's alternative RFC did not include the effects of DAA as follows:

[i]f the claimant stopped the substance abuse, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). Specifically, he could lift, carry, push and pull 20 pounds occasionally and 10 pounds frequently, stand/walk for 6 hours and sit for 6 hours in an 8-hour day. Additionally, the claimant was limited to simple routine work, occasional interaction with supervisors and coworkers, and incidental interaction with members of the public. The claimant was limited to making simple work related decisions in a workplace with few changes in the routine work setting. The claimant could not perform work in tandem with other employees, and could not perform assembly line type work.

Tr. 919. At the second phase of step four, the ALJ determined that with or without considering the effects of DAA, Mr. Finley could not perform the exertional demands of his past relevant work. Tr. 917, 924. At the fifth step of the sequential evaluation, the ALJ found there were no jobs existing in significant numbers that Mr. Finley could perform when the effects of DAA were considered. Tr. 917-18. Because the ALJ found Mr. Finley's DAA material to his disability, however, the ALJ was required to formulate a second RFC without considering the effects of DAA. Based on the second RFC and the testimony of the VE, the ALJ concluded that if Mr. Finley stopped using alcohol, there were jobs that existed in significant numbers in the national economy that he could perform. Tr. 924-25. The ALJ, therefore, determined that Mr. Finley was not disabled. Tr. 925.

         In his Motion, Mr. Finley argues that the ALJ (1) failed to properly account for the opinions of his treating psychiatrists;[5] (2) failed to properly account for certain opinions of the State agency examining and nonexamining psychological consultants; and (3) failed to conduct a proper DAA evaluation in accordance with SSR 13-2p. Doc. 18 at 14-16. For the reasons discussed below, the Court finds the ALJ did not apply the correct legal standard in weighing the ...


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