Lupo v. Colvin
Filing
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ORDER, the decision of the Commissioner is affirmed; the Clerk is kindly directed to enter judgment accordingly and terminate this appeal. Signed by Magistrate Judge Lawrence O Anderson on 6/13/14. (REW)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Denise Ann Lupo,
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Plaintiff,
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vs.
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Carolyn W. Colvin, Acting Commissioner)
of the Social Security Administration, )
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Defendant.
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No. CV-13-661-PHX-LOA
ORDER
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Plaintiff seeks judicial review of the Social Security Administration Commissioner’s
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decision denying her application for disability insurance benefits. The parties have expressly
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consented in writing to proceed before the undersigned Magistrate Judge per 28 U.S.C. §
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636(c). (Docs. 8, 13) Plaintiff has filed an Opening Brief and Defendant has filed a
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Response Brief. (Docs. 19, 20) Plaintiff has not filed a reply brief. After review of the
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record, briefing and applicable law, the decision of the Commissioner is affirmed.
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I. Background
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Plaintiff filed an application for disability insurance benefits under the Social Security
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Act on July 30, 2010, when she was 41 years old. (AR1 21, 164-65) Plaintiff, who completed
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two years of college and worked as a registered nurse from 1999 to 2010, claims she is, has
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Citations to “AR” are to the administrative record.
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been, unable to work because of disabling conditions, beginning on May 10, 2010. (AR 164,
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187) Plaintiff identified severe depression, panic attacks, anxiety, insomnia, bipolar disorder,
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paranoia, and alcohol as the conditions that limit her ability to work. (AR 186)
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A hearing was held before an Administrative Law Judge (“ALJ”) on September 22,
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2011. (AR 37-60) In an October 7, 2011 decision, the ALJ determined Plaintiff has the
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following severe impairments: alcohol dependence, major depressive disorder, and anxiety
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disorder. (AR 23) The ALJ found Plaintiff’s impairments meet the criteria for three listings
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in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 24-25) However, the ALJ found that if
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Plaintiff stopped the alcohol use, she would not have an impairment that met or medically
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equaled the listings. (AR 25-26) The ALJ further found that, if Plaintiff stopped consuming
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alcohol, she would have the residual functional capacity2 (“RFC”) to perform a full range of
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work at all exertional levels, but Plaintiff would be “limited to simple unskilled tasks,
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working primarily with objects, rather than with data or people.” (AR 27-29) Accordingly,
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the ALJ ruled that Plaintiff is not entitled to disability benefits because, although she is under
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a disability, “a substance use disorder is a contributing factor material to the determination
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of disability.” (AR 21-22) She is, therefore, not disabled within the meaning of the Social
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Security Act since the date of onset through the date of the decision. (Id.)
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II. Analysis
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Plaintiff argues the ALJ erred by: 1) finding substance use material to a finding of
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disability under the medical listings; 2) failing to properly weigh the medical evidence; 3)
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failing to properly evaluate Plaintiff’s credibility; and 4) relying on the medical-vocational
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guidelines. (Doc. 19) Defendant disputes Plaintiff’s arguments and contends the
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administrative decision is supported by substantial evidence and free of harmful legal error.
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The term “residual functional capacity” means the most an individual can do after
considering the effects of physical and/or mental limitations that affect the ability to perform
work-related tasks. See 20 C.F.R § 404.1545(a)(1-2).
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The undersigned Magistrate Judge has reviewed the record and finds that the ALJ’s
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decision is supported by substantial evidence. “Where the evidence is susceptible to more
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than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s
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conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
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First, it was reasonable for the ALJ to find that Plaintiff’s alcohol use was a
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contributing factor material to her disability. See 42 U.S.C. § 423(d)(2)(C) (providing that
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an individual is not to be considered disabled if alcoholism is a contributing factor material
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to the disability determination); Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007) (claimant
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bears the burden of proving that drug or alcohol addiction is not a contributing factor material
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to disability). The ALJ explained that a state agency physician, Jonathan Zeuss, M.D., opined
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that Plaintiff’s alcohol use is material to her disability, an opinion the ALJ found was
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substantially consistent with the longitudinal evidence of the record. (AR 28, 81-85) In
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addition, as the ALJ explained, since Plaintiff reduced her alcohol consumption, she is able
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to live alone, arrange her own meals, go shopping with family members, pay bills, and read
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articles online. (AR 26) She also traveled to New York in 2011 to attend her godson’s
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birthday (Id.) The ALJ further pointed out that Plaintiff herself reported in a substance abuse
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questionnaire that alcohol made her feel “more depressed” and affected her ability to work.
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(AR 237) The Court finds no error in the ALJ’s finding regarding the materiality of
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Plaintiff’s alcohol use.
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Second, the Court finds the ALJ reasonably weighed the medical opinion evidence.
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If a treating doctor’s opinion is contradicted by another doctor, the ALJ can reject it by
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providing “‘specific and legitimate reasons’ supported by substantial evidence in the record.”
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Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Lester v. Chater, 81 F.3d 821,
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830 (9th Cir. 1995)) The ALJ rejected the treating physician’s medical source statements
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that concluded Plaintiff is disabled from her mental impairments, independent of her alcohol
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abuse. (AR 28) (citing AR 262-63, 309-16, 351, 353)) The ALJ found the treating
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physician’s opinions regarding the impact of Plaintiff’s alcohol abuse was not supported by
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the longitudinal evidence of the record. (AR 28) As noted above, the state agency physician
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reached a different opinion, concluding that Plaintiff’s alcohol use is a contributing factor
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that is material to her disability. In addition, the ALJ pointed out Plaintiff’s own admission
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supported his finding that Plaintiff’s alcohol consumption aggravated her depression. (AR
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28) The ALJ also noted that the treating physician’s opinions fail to address the fact that
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Plaintiff was able to work for eleven years as a registered nurse, despite her mental
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impairments, and did not experience a worsening of her symptoms. (Id.) Rather, the
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worsening of Plaintiff’s symptoms coincided with her periods of increased alcohol
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consumption between 2008 and 2010. Lastly, the ALJ explained that the treating physician’s
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opinions were rendered during a period when Plaintiff was still drinking alcohol and before
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Plaintiff claimed that she stopped in September 2011. (AR 28) The Court finds that the ALJ
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provided specific and legitimate reasons to reject the treating physician’s opinion, and those
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reasons are supported by substantial evidence in the record.
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Third, the Court further finds that the ALJ reasonably evaluated Plaintiff’s credibility.
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Where a claimant presents objective medical evidence of an underlying impairment that
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could reasonably be expected to produce the symptoms alleged, the ALJ may make an
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adverse credibility determination only by offering specific, clear and convincing reasons for
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doing so. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035-1036 (9th Cir. 2007). The ALJ
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found Plaintiff to be “not wholly credible,” particularly with respect to her alcohol use. (AR
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28) The ALJ referenced Plaintiff’s testimony at the administrative hearing where Plaintiff
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said she started drinking a couple months before her grandmother got sick in 2008 and she
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would drink about three or four gin or vodka drinks almost daily. (AR 28, 52) She stated that
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drinking lasted for only about four months. (Id.) During her consultative psychiatric
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examination in September 2010, however, Plaintiff said that in 2009 she was drinking a
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bottle of gin per day for six months. (AR 28) Plaintiff further reported at that time that she
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had stopped drinking heavily around January 2010. (Id.) On her December 26, 2010
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Substance Abuse Questionnaire, however, she reported drinking as much as two bottles of
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wine and a bottle of gin per day, and she had stopped drinking alcohol only three months
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before answering the questionnaire. (Id.) The ALJ cited additional examples of inconsistent
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statements during her testimony and inconsistent reports regarding the effects of alcohol on
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her impairments. (Id.) The Court concludes that the ALJ presented specific, clear and
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convincing reasons which are supported by substantial evidence for concluding that Plaintiff
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lacked credibility.
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Lastly, the Court finds no error with regard to the ALJ’s reliance on the Medical-
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Vocational Guidelines (the “Grid”). As noted above, the ALJ determined that, if Plaintiff
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stopped her alcohol use, she could perform work involving simple, unskilled tasks, primarily
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with objects, at all exertional levels. Based on that determination, the ALJ relied on Rule 204
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of the Grid to conclude Plaintiff is not disabled. (AR 30) The ALJ explained that Plaintiff
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does not have any exertional limitations and, if she does not abuse alcohol, she “is able to
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perform the basic, requisite, mental demands of unskilled work.” (AR 30) Plaintiff has failed
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to show any error in the ALJ’s reliance on the Grid to reach the conclusion that Plaintiff is
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not disabled. As Plaintiff concedes, the limitations assessed by the ALJ do not preclude
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reliance on the Grid. Accordingly, the Court finds that the ALJ was not required to obtain
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vocational expert testimony and did not err in relying instead on Rule 204 of the Grid as a
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framework to conclude that Plaintiff was not disabled. See Hoopai v. Astrue, 499 F.3d 1071
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(9th Cir. 2007) (affirming ALJ’s reliance on the Medical-Vocational Guidelines after finding
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that plaintiff’s depression did not constitute a sufficiently severe non-exertional limitation
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to require vocational testimony).
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III. Conclusion
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For these reasons, the Court finds the Commissioner’s decision is supported by
substantial evidence and free from harmful legal error.
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Accordingly,
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IT IS ORDERED that the decision of the Commissioner is AFFIRMED. The Clerk
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of Court is kindly directed to enter judgment accordingly and terminate this appeal.
Dated this 13th day of June, 2014.
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