Russell v. Commissioner of Social Security Administration

Filing 17

ORDER - IT IS ORDERED that the final agency decision is AFFIRMED. The Clerk shall enter judgment accordingly and terminate this case. (See document for further details). Signed by Judge Douglas L Rayes on 9/30/17. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Craig Russell,

No. CV-16-01495-PHX-DLR

Plaintiff,

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ORDER

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v.

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Commissioner of Social Security
Administration,

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Defendant.

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Plaintiff Craig Russell applied for a period of disability, disability insurance

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benefits, and supplemental security income on September 18, 2012, alleging disability

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beginning December 31, 2008. After state agency denials, Russell appeared for a hearing

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before an administrative law judge (“ALJ”). A vocational expert also was present and

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testified. Following the hearing, the ALJ issued a written decision finding that Russell is

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not disabled within the meaning of the Social Security Act (“SSA”). The ALJ’s decision

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became the agency’s final decision after the Social Security Administration Appeals

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Council denied Russell’s request for review. Russell now seeks judicial review of that

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decision. For the following reasons, the decision of the Commissioner of Social Security

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Administration is affirmed.
BACKGROUND

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To determine whether a claimant is disabled for purposes of the SAA, the ALJ
follows a five-step process.

20 C.F.R. § 404.1520(a).

At the first step, the ALJ

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determines whether the claimant is engaging in substantial gainful activity. If so, the

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claimant is not disabled and the inquiry ends. At step two, the ALJ determines whether

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the claimant has a “severe” medically determinable physical or mental impairment. If

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not, the claimant is not disabled and the inquiry ends. At step three, the ALJ considers

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whether the claimant’s impairment or combination of impairments meets or medically

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equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. If so, the

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claimant is automatically found to be disabled. If not, the ALJ proceeds to step four. At

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step four, the ALJ assesses the claimant’s residual functional capacity (“RFC”) and

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determines whether the claimant is still capable of performing past relevant work. If so,

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the claimant is not disabled and the inquiry ends. If not, the ALJ proceeds to the fifth and

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final step, where he determines whether the claimant can perform any other work based

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on the claimant’s RFC, age, education, and work experience. If so, the claimant is not

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disabled. If not, the claimant is disabled.

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At step one, the ALJ found that Russell meets the insured status requirements of

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the SSA through September 30, 2014, and that he has not engaged in substantial gainful

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activity since December 31, 2008. (A.R. 22-23.) At step two, the ALJ found that

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Russell’s affective and substance abuse disorders are severe impairments. (Id. at 23.) At

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step three, the ALJ determined that Russell’s impairments meet or equal the severity of

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listings 12.04 and 12.09. (Id. at 24.) The ALJ also found at step three, however, that

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Russell would not have an impairment that medically meets or equals the severity of a

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listed impairment if he stopped his substance use. (Id. at 25-26.) The ALJ proceeded to

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complete the sequential analysis, noting at each step that his findings were contingent

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upon Russell ceasing his substance use. At step four, the ALJ found that:

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[Russell] would have the [RFC] to perform a full range of
work at all exertional levels but with the following
nonexertional limitations: [he] is limited to simple work with
only incidental social contact.

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(Id. at 26.) Based on this RFC, the ALJ found that Russell would be unable to perform

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his past relevant work. (Id. at 30.) At step five, however, after considering Russell’s age,

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education, work experience, and RFC, the ALJ concluded that there are jobs that exist in

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significant numbers in the national economy that Russell can perform.

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Accordingly, the ALJ concluded that Russell was not disabled within the meaning of the

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SSA because his substance use is a contributing factor material to the disability

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determination, and he would not be disabled if he stopped the substance use. (Id. at 30-

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31.)

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(Id.)

STANDARD OF REVIEW

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It is not the district court’s role to review the ALJ’s decision de novo or otherwise

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determine whether the claimant is disabled. Rather, the court is limited to reviewing the

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ALJ’s decision to determine whether it “contains legal error or is not supported by

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substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial

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evidence is more than a scintilla but less than a preponderance, and “such relevant

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evidence that a reasonable mind might accept as adequate to support a conclusion.” Id.

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“Where evidence is susceptible to more than one rational interpretation, the ALJ’s

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decision should be upheld.” Id. The court, however, “must consider the entire record as

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a whole and may not affirm simply by isolating a ‘specific quantum of supporting

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evidence.’” Id. Nor may the court “affirm the ALJ on a ground upon which he did not

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rely.” Id.

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DISCUSSION

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Russell argues that the ALJ improperly found that his: (1) substance use was

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material to the disability determination; (2) back pain and sleep apnea were not severe;

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and (3) limitations allowed him to work in jobs with only incidental social contact,

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without defining the term. (Doc. 9.) Having reviewed the record and the parties’ briefs,

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the Court finds no reversible error.

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I. Substance Use as a Material Contributing Factor

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The ALJ found that Russell’s affective and substance abuse disorders were severe,

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and that while on methamphetamine his impairments met listings 12.04 and 12.09.

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Because drug abuse cannot be a material factor in the ALJ’s disability determination, the

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ALJ then re-analyzed Russell’s impairments at step three as if he had stopped using

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methamphetamine. This time, the ALJ concluded that Russell’s impairments did not

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meet or equal a listed impairment. The ALJ also concluded that, if not on drugs, Russell

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would be able to perform simple work with incidental social contact and that such jobs

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exist in significant numbers in the national economy.

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Agency regulations provide that “[a]n individual shall not be considered to be

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disabled . . . if alcoholism or drug addiction would . . . be a contributing factor material to

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the Commissioner’s determination that the individual is disabled.”

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423(d)(2)(c). In order “[t]o find that [drug abuse] is material, we must have evidence in

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the case record demonstrating that any remaining limitations [when not using drugs] were

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not disabling during the period.” SSR 13-2p, 2013 WL 621536, at *12. “Especially in

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cases involving co-occurring mental disorders, the documentation of a period of

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abstinence should provide information about what, if any, medical findings and

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impairment-related limitations remained after the acute effects of drug and alcohol use

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abated.” Id.

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The ALJ highlighted such evidence here.

42 U.S.C. §

The ALJ separately compared the

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effects of Russell’s symptoms during periods of sobriety and relapse and found that he

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had fewer and less severe limitations during periods of sobriety. (A.R. at 26.) This

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finding is supported by substantial evidence. For example, during periods of sobriety

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Russell’s mental status examinations were unremarkable. (See, e.g., id. at 319, 325, 329,

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432-45, 506-23 (noting that Plaintiff had normal speech and thought process, gave full

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attention, normal concentration, intact memory, and unimpaired insight and judgment).)

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In contrast, during a period of relapse, Russell’s thought process was disorganized, his

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insight and judgment were poor, his attention was poor, his mood was “off the wall,” and

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his speech was difficult to understand. (Id. at 356-59.) The ALJ reasonably concluded

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that the notes from periods of sobriety reflect Russell’s functioning when not using

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methamphetamine, while the notes that coincided with Russell’s relapse reflect his

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functioning when he is using the drug. Based on the evidence and the ALJ’s sequential

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evaluation findings when Russell’s substance use was not considered, the ALJ reasonably

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concluded that Russell’s drug use would be material to a finding of disability.

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II. Severity of Sleep Apnea and Back Pain (Disc Disease)

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The step two inquiry is a de minimis screening device to dispose of groundless

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claims. Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987). Agency regulations provide that

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“[a]n impairment or combination of impairments is not severe if it does not significantly

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limit a claimant’s physical or mental ability to do basic work activities.” 20 C.F.R. §§

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404.1521(a), 416.921(a). Basic work activities are “the abilities and aptitudes necessary

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to do most jobs,” including: (1) physical functions such as walking, standing, sitting,

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lifting, and carrying; (2) capacities for seeing, hearing, and speaking; (3) understanding,

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carrying out, and remembering simple instructions; (4) use of judgment; (5) responding

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appropriately to supervision, co-workers, and usual work situations; and (6) dealing with

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changes in a routine work setting. 20 C.F.R. §§ 404.1521(b), 416.921(b). “[A]n ALJ

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may find that a claimant lacks a medically severe impairment or combination of

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impairments only when his conclusion is ‘clearly established by medical evidence.’”

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Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005).

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Russell was diagnosed with sleep apnea in August 2014. (A.R. at 578.) The ALJ

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found Russell’s sleep apnea not severe at step two because Russell admittedly did not

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comply with his prescribed treatment for the condition. (Id. at 23, 43-44.) The ALJ

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reasonably concluded that Russell would have complied with his prescribed treatment if

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his sleep apnea was as severely limiting as he alleged. See Tonapetyan v. Halter, 242

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F.3d 1144, 1147-48 (9th Cir. 2001).

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Regarding his back pain, Russell contends that the ALJ neglected to consider a

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November 2013 x-ray, which showed “marked” disc disease with grade I-II

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spondylolisthesis. (A.R. 553.) But the record shows that the ALJ considered the results

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of this x-ray, as his decision both cites to and quotes from the x-ray results. (A.R. 23.)

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Notably, the ALJ highlighted language from that x-ray stating, “there is no instability

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with flexion or extension.” (Id.) This language served as the basis for the ALJ’s finding

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that Russell’s disc disease was not severely limiting. See, e.g., Burch v. Barnhart, 400

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F.3d 676, 681 (9th Cir. 2005) (recognizing that an ALJ’s interpretation of objective

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imaging, i.e., an MRI, is a legitimate basis for a nondisability finding). Moreover, Russell

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fails to connecting the results of his x-ray with limitations on work activities. The Court

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finds no step two error.

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III. Incidental Social Contact

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Finally, Russell argues that the phrase “incidental social contact” as used in the

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ALJ’s RFC finding is ambiguous. He contends that, without clarity as to the amount of

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public contact Russell can have, it is not possible to assess what jobs are available to him.

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The Court disagrees.

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The ALJ defined the term “incidental social contact” during the hearing. In his

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hypothetical posed to the VE, the ALJ asked whether someone limited to work

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“involving no more than incidental contact,” meaning “not much with the public and not

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having to really interact on any extensive basis with coworkers or supervisors,” could

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perform jobs that exist in the national economy.

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identified kitchen helper, hand packager, dining room attendant, and housekeeper. (Id. at

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60-61, 64.) The VE acknowledged that a dining room attendant worked around many

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people, but explained that “contact with them is just incidental because you’re focused on

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cleaning empty tables.” (Id. at 62.) The VE also acknowledged that kitchen helpers and

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hand packagers do not work alone, but explained that these jobs required only incidental

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contact with others. (Id. at 64.) Likewise, housekeepers have “very little contact with

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others.” (Id.) Accordingly, the ALJ sufficiently defined “incidental social contact” to

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properly assess the jobs Russell could perform.

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(A.R. 60.)

In response, the VE

CONCLUSION

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For the foregoing reasons, the ALJ’s decision is free of harmful legal error and

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supported by substantial evidence.

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//

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//

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IT IS ORDERED that the final agency decision is AFFIRMED. The Clerk shall
enter judgment accordingly and terminate this case.
Dated this 30th day of September, 2017.

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Douglas L. Rayes
United States District Judge

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