United States District Court, W.D. Oklahoma
HEATON CHIEF U.S. DISTRICT JUDGE.
Troy Richard filed this action appealing the decision of the
Commissioner of the Social Security Administration denying
his application for disability insurance benefits. The case
was referred to Magistrate Judge Shon T. Erwin for initial
proceedings. Judge Erwin has issued a Report and
Recommendation (the “Report”) recommending that
the Commissioner's decision be reversed and the case
remanded for further proceedings.
Commissioner has objected to the Report, which triggers
de novo review by this court of the recommendations
to which objection was made. 28 U.S.C. § 636(b)(1)(C).
Plaintiff did not object to the Report, and has thereby
waived his right to appellate review of the factual and legal
issues it addressed. Casanova v. Ulibarri, 595 F.3d
1120, 1123 (10th Cir. 2010). The court has conducted the
necessary de novo review.
Report sets out the background information and evidence as to
plaintiff's condition, and the treatment of it by the
administrative law judge (“ALJ”) in the
underlying Decision, including his discussion of the familiar
five step process for evaluating disability claims. It is
therefore unnecessary to recount that information here. What
is at issue now is whether or not the Report correctly
rejected the ALJ's conclusion that plaintiff was not
disabled, which conclusion was substantially based on a
determination that (1) plaintiff's substance abuse was a
material contributing factor to the disability determination,
and (2) that, after excluding the impact of the substance
abuse, plaintiff had a sufficient residual functional
capacity to do other substantial work in the economy.
Report correctly noted, the process for making the necessary
determinations was for the ALJ to determine at step 3 whether
plaintiff had impairments sufficiently severe to qualify him
as presumptively disabled. Once he had done so, the ALJ was then
obliged to conduct a further determination of whether
plaintiff's substance abuse materially contributed to
plaintiff's disability and, if so, to essentially back
that factor out of the equation. See SSR 13-2P,
Evaluating Cases Involving Drug Addiction and Alcoholism,
2013 WL 621536 (Feb. 20, 2013). The various standards then
require the ALJ to make a further determination of whether
plaintiff's other limitations, apart from the substance
abuse, were sufficiently severe to qualify him as disabled.
The Report concluded that remand was necessary because the
ALJ did not make an explicit further calculation after
determining that substance abuse was a material contributing
true that the ALJ, in the underlying order, did not state in
his Decision an explicit, step-by-step explanation of the
alternate 5-step analysis after excluding the impact of
substance abuse. But that does not mean he did not do it and,
in the circumstances existing here, the court concludes the
necessary analysis was in fact conducted.
Decision explicitly recognized the pertinent substantive
requirement, noting that the judge needed to “evaluate
the extent to which the claimant's mental and physical
limitations would remain if the claimant stopped the
substance use.” TR. at 21. It further noted that, if
the remaining limitations were not disabling by themselves,
the substance abuse would constitute a material contributing
factor so as to bar a disability determination. Id.
Applying these standards to plaintiff, the Order went on to
conclude that, even if he stopped the substance abuse, severe
impairments would remain, but that they were not severe
enough to be equivalent to a listed impairment and establish
disability. TR. at 26. The ALJ then went on to make the step
4 and step 5 determinations in light of plaintiff's
reformulated residual functional capacity absent substance
use. TR. at 27-32. That process is substantially the one
required by the regulations.
court concludes this is one of those cases where a
“decision of less than ideal clarity” should be
upheld because “the agency's path may reasonably be
discerned.” Davis v. Erdmann, 607 F.2d 917,
919 n. 1 (10th Cir. 1979). See also,
Wall v. Astrue, 561 F.3d 1048, 1069 (10th
Cir. 2009) (noting that ALJ's decisions must be read as a
whole to prevent a remand that “would serve no other
purpose than to needlessly prolong a protracted course of
proceedings.”) Concluding otherwise here would exalt
form over substance to an unwarranted degree.
related but distinct question is whether the Report correctly
concluded there was no substantial evidence to support the
ALJ's conclusion that plaintiff's hand tremors would
go away or significantly subside if the substance abuse was
stopped; i.e., the determination that the substance abuse was
a material contributing factor to the initial finding of a
disability. Included in the evidence relied on by the
ALJ was testimony from Dr. Baldwin that plaintiff's hand
tremors “are expected to clear with appropriate
medication schedule and discontinuation of
drug/alcohol.” Other evidence, though less explicit or
clear, suggested the same thing. See, e.g., T.R. at
1131-32. While there is evidence from which a contrary
conclusion might be drawn, the court concludes the evidence
from Dr. Baldwin plus the corroborating evidence from Dr.
Lalani and other sources arises to the level of being
“substantial” evidence. See Wilson v.
Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010)
(“Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.”) Once it is determined that substantial
evidence exists to support a particular conclusion, this
court's review must defer to that, as it is not the
function of a reviewing court to “reweigh the evidence
nor substitute [its] judgment for that of the agency.”
Vigil v. Colvin, 805 F.3d 1199, 1201
(10th Cir. 2015). As the court concludes
substantial evidence existed to support the
“materiality” determination, there is no basis
for avoiding the ALJ's conclusion as to that issue.
concluded that remand is not necessary to state more
explicitly the ALJ's step 3 analysis absent substance
use, a further determination must be made as to
plaintiff's remaining challenges to the residual
functional capacity (“RFC”) determination. These
were not addressed in the Report, as it was unnecessary to
reach them in light of the Report's other conclusions,
but they require resolution now in light of the court's
plaintiff argues that the ALJ's finding that he would
have the RFC to perform a wide range of light work was not
supported by substantial evidence. Doc. #16, p. 9-11.
Specifically, plaintiff argues that, despite affording great
weight to Dr. McKee's opinion, the ALJ did not
“include in the RFC and/or hypothetical to the VE, [Dr.
McKee's] limitations that Plaintiff could only carry out
simple tasks dealing with objects as opposed to data, nor
that Plaintiff required a supportive work environment, nor
that the work environment should not be extremely
stressful.” Id. at p. 9.
specifically noted that plaintiff should “make only
simple work-related decisions; deal with only occasional
changes in work processes and environment; have no contact
with the general public; [and] have only incidental,
superficial work-related type contact with co-workers and
supervisors, i.e., brief, succinct, cursory, concise
communications relevant to the task being performed.”
T.R. at 27. While this language does not mirror that of Dr.
McKee, nothing requires an ALJ to adopt a physician's
terminology; “there is no requirement in the
regulations for a direct correspondence between an RFC
finding and a specific medical opinion on the functional
capacity in question.” Chapo v. Astrue, 682
F.3d 1285, 1288 (10th Cir. 2012). Here, the ALJ's
limitations and finding that plaintiff could only perform
“light work” are supported by Dr. McKee's
report and other substantial evidence in the record.
second remaining RFC challenge alleges that the “ALJ
failed to perform the requisite function-by-function
assessment in accordance with SSR 96-8p.” Doc. #36, p.
11. As plaintiff notes, “[t]he RFC assessment must
first identify the individual's functional limitations or
restrictions and assess his or her work-related abilities on
a function-by-function basis . . . .” Social Security
Ruling 96-8p, Policy Interpretation Ruling Titles II and XVI:
Assessing Residual Functional Capacity in Initial Claims,
1996 WL 374184, *1 (July 2, 1996) (“SSR 96-8p”).
Plaintiff argues that definition of “light work”
in 20 C.F.R. § 404.1567(b), as utilized by the ALJ, does
not demonstrate how the function-by-function analysis was
performed, and thus, the ALJ could not have properly assessed
his “actual ability to walk, sit, stand, push, and
pull.” Doc. #16, p. 12.
fact that the ALJ states his finding first, using the
definition of light work, and then provides the explanation
for how that finding was reached does not render his ruling
procedurally defective. The ALJ explains that plaintiff would
be limited to light work because he “can only:
occasionally climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl; never climb ropes, ladders, and scaffolds;
must avoid all heights; [and] frequently, but not constantly,
use his upper extremities for handling and fingering.”
TR. at 27. Further, in explaining the rationale for finding
#8, the ALJ notes that plaintiff was diagnosed with epilepsy
which resulted implementation of seizure safety limitations
(many of which are represented above); that, while his
seizures were medically intractable, plaintiff's seizures
appeared well controlled by ongoing medication therapy; that
while plaintiff showed evidence of rib abnormalities due to a
prior accident, there were no current rib issues other than
pain for which plaintiff only sought medications, not any
rehabilitative therapies to ...