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Acuff v. Commissioner of Social Security Administration

United States District Court, E.D. Oklahoma

February 28, 2019

BRANCE E.W. ACUFF, Plaintiff,
COMMISSIONER of the Social Security Administration, Defendant.



         The 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.

         Social Security Law and Standard of Review

         Disability 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.[1]

         Section 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 800-01.

         Claimant's Background

         The 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).

         Procedural History

         On July 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. § 416.1481.

         Decision of the Administrative Law Judge

         The ALJ 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. 33-34).


         The 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 agrees.

         The 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 ...

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