United States District Court, E.D. Oklahoma
BRANCE E.W. ACUFF, Plaintiff,
COMMISSIONER of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
P. SHREDER, UNITED STATES MAGISTRATE JUDGE
claimant Brance E.W. Acuff requests judicial review of a
denial of benefits by the Commissioner of the Social Security
Administration pursuant to 42 U.S.C. § 405(g). He
appeals the Commissioner's decision and asserts the
Administrative Law Judge (“ALJ”) erred in
determining he was not disabled. For the reasons set forth
below, the undersigned Magistrate Judge recommends that the
Commissioner's decision be REVERSED and REMANDED to the
ALJ for further proceedings.
Security Law and Standard of Review
under the Social Security Act is defined as the
“inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment[.]” 42 U.S.C. § 423(d)(1)(A). A
claimant is disabled under the Social Security Act
“only if his physical or mental impairment or
impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national
economy[.]” Id. § 423 (d)(2)(A). Social
security regulations implement a five-step sequential process
to evaluate a disability claim. See 20 C.F.R.
§§ 404.1520, 416.920.
405(g) limits the scope of judicial review of the
Commissioner's decision to two inquiries: whether the
decision was supported by substantial evidence and whether
correct legal standards were applied. See Hawkins v.
Chater, 113 F.3d 1162, 1164 (10th Cir. 1997).
Substantial evidence is “‘more than a mere
scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion.'” Richardson v. Perales, 402
U.S. 389, 401 (1971), quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938). See also Clifton v.
Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). The Court
may not reweigh the evidence or substitute its discretion for
the Commissioner's. See Casias v. Secretary of Health
& Human Services, 933 F.2d 799, 800 (10th Cir.
1991). But the Court must review the record as a whole, and
“[t]he substantiality of evidence must take into
account whatever in the record fairly detracts from its
weight.” Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951). See also Casias, 933 F.2d at
claimant was twenty-five years old at the time of the
administrative hearing (Tr. 38). He completed the tenth
grade, and has worked as a flagger (Tr. 27, 223). The
claimant alleges that he has been unable to work since July
31, 2014, due to attention deficit hyperactivity disorder
(“ADHD”) and illiteracy (Tr. 222).
31, 2014, the claimant applied for supplemental security
income payments under Title XVI of the Social Security Act,
42 U.S.C. §§ 1381-85. His application was denied.
ALJ John W. Belcher conducted an administrative hearing and
determined that the claimant was not disabled if he stopped
substance abuse in a written opinion dated February 14, 2017
(Tr. 18-29). The Appeals Council denied review, so the
ALJ's opinion represents the Commissioner's final
decision for purposes of this appeal. See 20 C.F.R.
of the Administrative Law Judge
made his decision at step five of the sequential evaluation.
At step two, he determined that the claimant had the severe
impairments of ADHD, depressive disorder, and substance abuse
disorder, as well as the nonsevere impairment of borderline
intellectual functioning (Tr. 20-21). Accounting for the
claimant's substance abuse at step three, he then
determined that the claimant's impairments met Listings
12.02, 12.04, and 12.09 (Tr. 21). However, he found that if
the claimant stopped the substance use, he would nevertheless
continue to have severe impairments, but he would not have an
impairment or combination of impairments that met or
medically equaled a Listing (Tr. 24). At step four, he found
that, if the claimant stopped his substance use, he would
retain the residual functional capacity (“RFC”)
to perform a full range of work at all exertional levels,
with the nonexertional limitations of performing simple,
routine, and repetitive tasks; performing work requiring only
superficial contact with supervisors but that he could not
perform work requiring contact with the public; and an
inability to perform work requiring reading or writing (Tr.
25). The ALJ thus concluded that although the claimant could
not return to his past relevant work, he was nevertheless not
disabled because there was work he could perform, i.
e., sweeper cleaner, inspector packer, and document
specialist (Tr. 27-28). Thus, the ALJ found the
claimant's substance abuse was a contributing factor
material to the determination of disability and that he would
not be disabled if he stopped the substance abuse (Tr.
claimant contends that the ALJ's determination that
substance abuse was material to his disability is not based
on substantial evidence. The undersigned Magistrate Judge
relevant medical evidence reveals that the claimant was
treated at Healthy Living in Tahlequah, Oklahoma, and
behavioral health notes indicate medication management for
the claimant's ADHD. Two years out from a serious car
accident, the claimant reported on June 14, 2016 that
medication would wear off around 5:00 p.m., that he had
trouble sleeping, and that he still had nightmares from the
accident (Tr. 378). On September 11, 2015, treatment notes
indicate that the claimant met the criteria for a PTSD
diagnosis (Tr. 487). Those treatment notes indicate that the
claimant reported past use of marijuana, but no history of
alcohol, substance, or prescription abuse (Tr. 378-383).
However, a Hastings Hospital treatment noted from October 12,
2015 states that the claimant reported smoking ...