Tearne v. Commissioner of Social Security Administration

Filing 21

ORDER that the final decision of the Commissioner is affirmed. The Clerk of the Court is directed to prepare a judgment and close this case. Signed by Magistrate Judge Leslie A Bowman on 3/29/2019. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Daniel Joseph Tearne,
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Plaintiff,
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vs.
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Commissioner
Administration,

of

Social

Defendant.

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No. CV 18-206-TUC-LAB
ORDER

The plaintiff filed this action for review of the final decision of the Commissioner for
Social Security pursuant to 42 U.S.C. § 405(g). (Doc. 1, p. 1)
The Magistrate Judge presides over this case pursuant to 28 U.S.C. § 636(c) having
received the written consent of both parties. See FED.R.CIV.P. 73; (Doc. 14)

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The ALJ found that the claimant’s drug addiction was material to her determination of

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disability and denied benefits. The ALJ’s decision is supported by substantial evidence and free

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from legal error. It is affirmed.

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PROCEDURAL HISTORY

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On January 2, 2015, Tearne constructively filed applications for disability insurance

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benefits and for supplemental security income pursuant to Title II and Title XVI of the Social

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Security Act respectively. (Tr. 21) He alleged disability beginning on May 1, 2013, due to

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anxiety with panic attacks, bipolar disorder with psychosis, depression, ADHD (attention deficit

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hyperactivity disorder), and memory loss. (Tr. 21, 242-243)

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His applications were denied initially and upon reconsideration. (Tr. 122-130); (Tr. 133-

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139) Tearne requested review and appeared with counsel at a hearing before Administrative

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Law Judge (ALJ) MaryAnn Lunderman on September 5, 2017. (Tr. 41) In her decision, dated

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October 25, 2017, the ALJ found that Tearne was not eligible for benefits because if he stopped

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his substance abuse, there are jobs he could perform in the national economy. (Tr. 32) Tearne

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appealed, but on March 22, 2018, the Appeals Council denied review making the decision of

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the ALJ the final decision of the Commissioner. (Tr. 1-4) Tearne subsequently filed this action

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appealing that final decision. (Doc. 1)

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Claimant’s Work History and Medical History

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Tearne was born in December of 1976. (Tr. 32) He was 40 years old when the ALJ

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issued her decision in October of 2017. (Tr. 32, 34) He has a GED. (Tr. 45)

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From 2008 to 2011, Tearne worked loading trucks and operating a forklift for his

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family’s salvage business. (Tr. 60-62) After the business failed, Tearne worked odd jobs. (Tr.

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46) He worked for Tin Man Recycling and then for Prep and Pastry restaurant. (Tr. 46) Tearne

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was asked to leave the restaurant when he had an argument with the manager about the

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advantages of scraping food off the plates before they went into the dish sink. (Tr. 53-54) He

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asserts that “my disabilities are to the point that they’re so severe that . . . if I were to go back

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to work or any type of stuff like that, it’s just going to be a disappointment to me.” (Tr. 46)

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At the hearing, Tearne reported that, “the last couple months I’ve been experimenting

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with marijuana.” (Tr. 48) He occasionally uses heroin “just as a social drug or what have you.”

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(Tr. 57)

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methamphetamines. (Tr. 425)

The medical record indicates that Tearne also has a recurring addiction to

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Vocational expert Shirley Ripp testified at the hearing that someone with the claimant’s

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age and vocational and educational background with no exertional limitations but limited to

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“simple tasks learned in 30 days or less or by brief demonstration with minimal change in the

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task as assigned and requiring less than occasional, seldom or [rare] contact with the public”

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and requiring at most only “occasional contact with supervisors and coworkers” could not
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perform Tearne’s past relevant work. (Tr. 58, 62-63) But such a person could work as a

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salvage laborer, DOT 929.687-022, or a laboratory equipment cleaner, DOT 381.687-022, or

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a janitor, DOT 381.687-018. (Tr. 58, 62-63)

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Counsel asked Ripp about the treating psychiatrist, who opined three years ago that

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Tearne has “Category IV” limitations, which preclude for 20 percent or more of the day, the

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activities of “maintaining sufficient [] attention [and] concentration to appropriately complete

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tasks in a timely manner, complete tasks without extra supervision or assistance, working in

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coordination with or proximity to others without being distracted, [and] respond[ing]

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appropriately to changes in a routine work setting.” (Tr. 64-65) This psychiatrist further opined

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that Tearne has “Category III” limitations, which preclude for 15 percent of the time, the

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activities of “accepting instructions and responding appropriately to criticism from supervisor,

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interacting appropriately with the general public, and dealing with normal work stress.” (Tr.

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64-65) Ripp opined that with these limitations, Tearne would be disabled. Id.

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Medical Record

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In September of 2015, Michael P. Christiansen, Ph.D., conducted a psychological

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examination of Tearne for the state disability determination services. (Tr. 410) He performed

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a face-to-face interview and administered a number of psychological tests.

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Christiansen diagnosed post traumatic stress disorder (PTSD), attention-deficit/hyperactivity

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disorder (ADHD) and antisocial personality disorder. (Tr. 417) He opined that Tearne is

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moderately limited in his “ability to maintain concentration and attention, work in coordination

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or proximity to others without being distracted by them, and complete a normal work schedule

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without interruptions from anxiety and irritability associated with symptoms of ADHD and

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PTSD.” (Tr. 418) He is moderately limited in his “ability to get along with co-workers,

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respond appropriately to supervision, maintain socially appropriate behavior, and adhere to

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basic standards of neatness.” (Tr. 418) He is otherwise not significantly limited. (Tr. 418)

(Tr. 410)

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In October of 2015, Laura Eckert, Ph.D., reviewed the medical record for the disability

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determination service and offered an opinion of Tearne’s mental impairment. (Tr. 74) Eckert
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diagnosed affective disorder and anxiety disorder. (Tr. 72) She then evaluated Tearne’s “B”

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listing criteria, which gauge the severity of his limitations. See 20 C.F.R. §§ 404.1520a(c)(3),

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416.920a(c)(3).

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“moderate” difficulties in maintaining social functioning; “moderate” difficulties in maintaining

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concentration, persistence, or pace; and one or two episodes of decompensation. (Tr. 72)

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Eckert further opined that the medical evidence did not establish the presence of the “C”

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criteria, which are an alternative gauge of the extent of his functional limitations. (Tr. 72-73)

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Eckert also completed a mental residual functional capacity assessment. (Tr. 75) She

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concluded that Tearne’s ability to understand and remember detailed instructions is moderately

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limited. (Tr. 75) His ability to carry out detailed instructions is markedly limited. Id. His

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ability to maintain attention and concentration for extended periods is moderately limited. Id.

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His ability to work in coordination with or in proximity to others without being distracted by

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them is moderately limited. (Tr. 75) His ability to interact appropriately with the general public

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is markedly limited. (Tr. 76) His ability to accept instructions and respond appropriately to

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criticism from supervisor and his ability to get along with coworkers or peers without distracting

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them or exhibiting behavioral extremes is moderately limited. (Tr. 76)

Eckert found Tearne has “mild” restrictions of activities of daily living;

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The medical record also contains a Mental Residual Functional Capacity Form from a

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medical provider dated March 24, 2017. (Tr. 421) The provider’s signature is illegible, but

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Tearne’s counsel identifies the provider as treating physician Steven Herron, M.D. (Tr. 421);

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(Doc. 17, p. 17) The provider states that Tearne is unable to “maintain sufficient attention and

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concentration to appropriately complete tasks in a timely manner,” “complete tasks without

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extra supervision or assistance,” “work in coordination with or proximity to others without

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being unduly distracted,” or “respond appropriately to changes in a routine work setting” for

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up to 20 percent of an 8-hour day. (Tr. 421) The provider further opines that Tearne is unable

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to “accept instructions and respond appropriately to criticism from supervisors,” “interact

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appropriately with the general public,” “or deal with normal work stress,” for up to 15 percent

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of an 8-hour day. (Tr. 421)

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CLAIM EVALUATION

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Social Security Administration (SSA) regulations require that disability claims be

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evaluated pursuant to a five-step sequential process. 20 C.F.R. §§ 404.1520, 416.920. The first

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step requires a determination of whether the claimant is engaged in substantial gainful activity.

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20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If so, then the claimant is not disabled, and

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benefits are denied. Id.

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If the claimant is not engaged in substantial gainful activity, the ALJ proceeds to step

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two, which requires a determination of whether the claimant has a severe impairment or

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combination of impairments. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). In making a

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determination at step two, the ALJ uses medical evidence to consider whether the claimant’s

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impairment significantly limits or restricts his or her physical or mental ability to do basic work

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activities. Id. If the ALJ concludes the impairment is not severe, the claim is denied. Id.

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Upon a finding of severity, the ALJ proceeds to step three, which requires a

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determination of whether the impairment meets or equals one of several listed impairments that

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the Commissioner acknowledges are so limiting as to preclude substantial gainful activity. 20

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C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); 20 C.F.R. Pt. 404, Subpt. P, App.1. If the claimant’s

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impairment meets or equals one of the listed impairments, the claimant is presumed to be

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disabled, and no further inquiry is necessary. Ramirez v Shalala, 8 F.3d 1449, 1452 (9th Cir.

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1993). If the claimant’s impairment does not meet or equal a listed impairment, evaluation

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proceeds to the next step.

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The fourth step requires the ALJ to consider whether the claimant has sufficient residual

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functional capacity (RFC)1 to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4),

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416.920(a)(4). If yes, then the claim is denied. Id. If the claimant cannot perform any past

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relevant work, then the ALJ must move to the fifth step, which requires consideration of the

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claimant’s RFC to perform other substantial gainful work in the national economy in view of

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Residual functional capacity is defined as that which an individual can still do despite
his or her limitations. 20 C.F.R. §§ 404.1545, 416.945.
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the claimant’s age, education, and work experience.

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416.920(a)(4).

20 C.F.R. §§ 404.1520(a)(4),

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The ALJ’s Findings

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At step one of the disability analysis, the ALJ found Tearne “has not engaged in

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substantial gainful activity since May 1, 2013, the alleged onset date. . . .” (Tr. 24) At step two,

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she found Tearne “has the following severe impairments: mental impairments variously

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diagnosed to include bipolar, mood, anxiety, generalized anxiety, attention-deficit-hyperactivity,

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post traumatic stress, anti-social personality disorders, and [] substance abuse impairment

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variously diagnosed to include opiod use disorder, other hallucinogen use disorder, cannabis use

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disorder, amphetamine type use disorder, and heroin use disorder. . . .” (Tr. 24)

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At step three, the ALJ found Tearne’s impairments meet section 12.08 found in the

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Listing of Impairments, Appendix 1, Subpart P, of 20 C.F.R., Part 404. (Tr. 24) If Tearne

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stopped substance abuse, he would still have a severe impairment or combination of

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impairments, but he no longer would have an impairment or combination of impairments that

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meets or equals the criteria for any impairment found in the Listing of Impairments, Appendix

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1, Subpart P, of 20 C.F.R., Part 404. (Tr. 26)

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The ALJ then analyzed Tearne’s residual functional capacity (RFC). She found that if

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Tearne stopped his substance abuse he “would have the residual functional capacity to perform

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the full range of work at all exertional levels but with certain nonexertional limitations.” (Tr.

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27) “Specifically, assigned work must be limited to simple tasks learned in 30 days or less or

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by a brief demonstration and the assigned tasks must have no more than minimal change in the

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tasks as assigned.” Id. “Additionally, there must be less than occasional (seldom or rare)

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contact [] with the public and no more than occasional contact with supervisors and coworkers.”

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Id.

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At step four, the ALJ found that Tearne is unable to perform any past relevant work. (Tr.

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32) At step five, the ALJ found, based on the testimony of the vocational expert, that

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considering his age, education, work experience, and residual functional capacity, Tearne could
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work as a salvage laborer, laboratory equipment cleaner, or janitor if he stopped his substance

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abuse. (Tr. 33)

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STANDARD OF REVIEW

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To qualify for disability benefits the claimant must demonstrate, through medically

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acceptable clinical or laboratory standards, an inability to engage in substantial gainful activity

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due to a physical or mental impairment that can be expected to last for a continuous period of

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at least twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). “An individual shall be

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determined to be under a disability only if his physical or mental impairment or impairments

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are of such severity that he is not only unable to do his previous work but cannot, considering

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his age, education, and work experience, engage in any other kind of substantial gainful work

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which exists in the national economy, regardless of whether such work exists in the immediate

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area in which he lives, or whether a specific job vacancy exists for him or whether he would be

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hired if he applied for work.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

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The findings of the Commissioner are meant to be conclusive. 42 U.S.C. §§ 405(g),

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1383(c)(3). The decision to deny benefits “should be upheld unless it contains legal error or is

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not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

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Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept

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as adequate to support a conclusion.” Id. It is “more than a mere scintilla but less than a

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preponderance.” Id.

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

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[Commissioner’s] decision should be upheld.” Orn, 495 F.3d at 630. “However, a reviewing

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court must consider the entire record as a whole and may not affirm simply by isolating a

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specific quantum of supporting evidence.” Id.

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Discussion: Tearne’s alcoholism or drug addiction

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Tearne argues first that the ALJ failed to perform an appropriate analysis pursuant to

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SSR 13-2p, which explains the Commissioner’s policies for determining whether “drug

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addiction and alcoholism” is material to a determination of disability. (Doc. 17, p. 2); SSR

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13–2p, 2013 WL 621536.

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The social security disability rules disqualify from receiving benefits a person whose

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drug addiction or alcoholism would “be a contributing factor material to the Commissioner’s

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determination that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C); § 1382c(a)(3)(J)

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“Under the implementing regulations, the ALJ must conduct a drug abuse and alcoholism

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analysis (‘DAA Analysis’) by determining which of the claimant’s disabling limitations would

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remain if the claimant stopped using drugs or alcohol.” Parra v. Astrue, 481 F.3d 742, 747 (9th

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Cir. 2007). “If the remaining limitations would still be disabling, then the claimant’s drug

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addiction or alcoholism is not a contributing factor material to his disability.” Id. “If the

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remaining limitations would not be disabling, then the claimant’s substance abuse is material

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and benefits must be denied.” Id. “[T]he claimant bears the burden of proving that drug or

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alcohol addiction is not a contributing factor material to his disability.” Id. at 748.

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In this case, the ALJ found that Tearne has severe mental impairments, which result in

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functional limitations so profound that he is unable to work. These limitations, however, are

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only partially caused by Tearne’s underlying mental impairments. Some of these limitations

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result from his drug abuse. The ALJ determined that if he stopped using drugs, his remaining

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limitations would not be disabling. Accordingly, the ALJ found that Tearne’s substance abuse

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would be a contributing factor material to a finding of disability and denied benefits.

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The ALJ was able to separate the limitations caused by Tearne’s underlying mental

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impairments from those caused by his drug abuse by comparing the medical records when

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Tearne was abusing drugs and when he was sober. (Tr. 28-29) The ALJ identified a period of

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time, from late 2013 to mid 2014, when Tearne was not using drugs. (Tr. 28) During this

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period, the ALJ observed that Tearne’s psychological symptoms were greatly reduced. (Tr. 28-

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29) (citing Exhibit 5F/3, 6, 7, 8) It appears that she then based her residual functional capacity

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assessment on Tearne’s limitations as displayed during this period and on the limitations
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identified by Christiansen who evaluated Tearne during a later period when his psychological

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symptoms were also reduced. (Tr. 30); see (Tr. 410) Using the testimony of the vocational

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expert, the ALJ concluded that there were jobs in the national economy that Tearne could

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perform, and he was not disabled. This court finds that the ALJ’s drug abuse and alcoholism

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(DAA) analysis is supported by substantial evidence and free from legal error. See SSR 13-2p

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(“To support a finding that DAA is material, we must have evidence in the case record that

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establishes that a claimant with a co-occurring mental disorder(s) would not be disabled in the

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absence of DAA.”). More to the point, this court finds that Tearne has not shown that his drug

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addiction would not be a contributing factor material to a finding of disability.

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Tearne argues that the ALJ’s analysis failed to properly comply with SSR 13-2p, which

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explains the Commissioner’s policies for determining whether “drug addiction and alcoholism”

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would be material to a determination of disability. (Doc. 17, p. 2); SSR 13–2p, 2013 WL

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621536. Specifically, Tearne argues that a finding that DAA is not material is required where

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“it is not possible to separate the limiting effects of the co-occurring mental disorder from those

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of DAA.” (Doc. 17, p. 11) The court is not convinced that Tearne’s reading of SSR 13-2p is

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correct.

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Tearne notes that a Social Security Q&A document stated explicitly that “When it is not

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possible to separate the mental restrictions and limitations imposed by DAA and the various

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other mental disorder shown by the evidence, a finding of ‘not material’ would be appropriate.”

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(Doc. 17, p. 9) (citing Q&A document, Answer 29, August 30, 1996) He then asserts that this

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“Q&A document was later incorporated into and replaced by SSR 13-2p.” (Doc. 17, p. 9)

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Finally, he concludes that this statement is a correct reading of that Ruling. The court is not

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convinced.

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While the Q&A document might have been generally incorporated into SSR 13-2p, this

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particular statement does not appear in the Ruling. This is fairly strong evidence that the Social

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Security Administration no longer subscribes to that statement. Moreover, this statement

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appears to contradict the rule that the claimant bears the burden of proving that his DAA is not

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material. The court, however, need not decide whether Tearne correctly interprets the operation
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of SSR 13-2p or not. Assuming he is correct about the construction of the Ruling, his argument

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still does not carry the day. In this case, it is “possible to separate the limiting effects of the co-

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occurring mental disorder from those of DAA.” The ALJ identified a six-month period of

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sobriety in the medical record during which Tearne’s mental symptoms were much reduced.

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From this information the ALJ was able to differentiate between the limiting effects caused by

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his underlying mental impairments and those caused by his drug abuse.

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Tearne further argues that the ALJ’s DAA analysis was flawed. He argues that the

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period identified by the ALJ of “less than six months” is not enough time for the effects of the

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methamphetamines to completely wear off. This argument, however, cuts against Tearne. If

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he is correct, than the reduction of symptoms identified by the ALJ would have been even more

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pronounced had his period of sobriety lasted longer.

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He further argues that during this period of relative sobriety, he still displayed symptoms

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of being “tense and worried with insight and judgment only fair.” (Doc. 17, pp. 13-14) He

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asserts that “[t]here is no medical evidence that Mr. Tearne’s functioning would improve to the

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point of non-disability in the absence of DAA” and the ALJ’s determination to the contrary is

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“purely speculative.” Id. This court does not agree.

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The medical record supports the ALJ’s determination that Tearne’s psychotic symptoms

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were reduced during his period of sobriety. (Tr. 28-29) (citing Exhibit 5F/3, 6, 7, 8) During

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this period “the claimant was exhibiting good eye contact, normal psychomotor activity (other

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than occasional jumping legs), unimpaired cognition, spontaneous, clear and fluid speech.” (Tr.

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28) “While the claimant appeared tense with a worried mood, [he] exhibited a cooperative

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attitude, and organized goal directed and coherent thought process with no evidence of

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delusional thinking.” (Tr. 28) The ALJ determined, based on the medical record and the

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consultative examiner’s report, that Tearne’s functional limitations during this time were

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reduced to the point that he was able to work. (Tr. 28-30) The ALJ’s conclusions are supported

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by substantial evidence and free from legal error.

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Tearne further argues that the ALJ failed to properly consider the cyclical nature of his

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bipolar disorder. He argues that his period of relatively reduced psychological symptoms could

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have been due to an episodic reduction of symptoms rather than due to his sobriety.

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While it is possible that this period of reduced symptoms was due to the cyclical nature

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of Tearne’s disorder rather than due to his sobriety, it is the ALJ’s responsibility and privilege

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to make this determination in the first instance, and she did so. Orn v. Astrue, 495 F.3d 625,

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630 (9th Cir. 2007). “Where evidence is susceptible to more than one rational interpretation, the

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[Commissioner’s] decision should be upheld.” Orn, 495 F.3d at 630.

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Tearne further argues that the ALJ failed to address the “C” criteria of the Listings 12.04,
12.06, 12.08, and 12.15. (Doc. 17, p. 16)

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At step three of the disability determination, the ALJ must determine whether the

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claimant’s impairments and limitations qualify for an immediate finding of disability. This

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determination varies depending on the impairments. For example, for Listing 12.04; depressive,

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bipolar, and related disorders; a claimant qualifies if he satisfies the “A” and “B” criteria or the

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“A” and “C” criteria. 20 C.F.R. Pt. 404, Subpt. P, App.1. The “A” criteria describe the

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symptoms that constitute the particular impairment such as bipolar disorder. Id. The “B” and

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“C” criteria describe the functional limitations that must be present for the claimant to qualify

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as disabled under the Listing. Id. The analysis under the 12.06 Listing, anxiety and obsessive-

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compulsive disorders, and the 12.15 Listing, trauma- and stressor-related disorders, is similar.

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Id. There is no “C” criteria for Listing 12.08, personality and impulse-control disorders. Id.

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Tearne argues the ALJ should have considered the “C” criteria, and that if she had, she

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would have found that he qualified under the Listings even in the absence of substance abuse.

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(Doc. 17, pp. 16-17) To satisfy the “C” criteria for Listing 12.04, 12.06, and 12.15 “a claimant

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must show that [his] mental impairment(s) has existed for at least two years, and that (1) [he]

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relied, on an ongoing basis, upon ‘medical treatment, mental health therapy, psychosocial

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support(s), or a highly structured setting(s), to diminish the symptoms and signs of [his] mental

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disorder,’ and (2) despite [his] diminished symptoms and signs of [his] mental disorder, [he] has

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achieved only ‘marginal adjustment,’ meaning ‘minimal capacity to adapt to changes in [his]
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environment or to demands that are not already part of [his] daily life.’ Jessica B. v. Comm'r

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of Soc. Sec., 2019 WL 850954, at *5 (E.D. Wash. 2019) (quoting 20 C.F.R. Pt. 404, Subpt. P,

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App.1).

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Tearne asserts in a conclusory fashion that he satisfied the “C” criteria even during the

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period of lessened symptoms identified by the ALJ. He does not, however, specifically explain

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why he believes this is true. As the court discussed above, the ALJ determined, based on the

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medical records, that during his period of sobriety, Tearne’s mental symptoms were greatly

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reduced. Tearne believes to the contrary that his symptoms were only slightly reduced.

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Presumably, he believes he achieved only “marginal adjustment” during this time. Reasonable

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minds could differ, but that is not the test. The test is whether the ALJ’s evaluation of Tearne’s

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condition is supported by substantial evidence. As the court explained above, it is. See Orn,

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495 F.3d at 630 (“Where evidence is susceptible to more than one rational interpretation, the

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[Commissioner’s] decision should be upheld.”). Assuming the ALJ erred by failing to address

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the “C” criteria directly, Tearne fails to show this error was harmful. McLeod v. Astrue, 640

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F.3d 881, 888 (9th Cir. 2011) (“[T]he burden to show prejudice [is] on the party claiming error

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by the administrative agency. . . .”); see also Granados v. Colvin, 2015 WL 917637, at *4 (E.D.

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Wash. 2015) (The court will not address an issue that is not “argued with specificity in

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Plaintiff’s opening brief.”).

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Finally, Tearne argues the ALJ failed to properly credit the opinion of the treating source,

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Steve Herron, M.D. “Because treating physicians are employed to cure and thus have a greater

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opportunity to know and observe the patient as an individual, their opinions are [ordinarily]

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given greater weight than the opinions of other physicians.” Smolen v. Chater, 80 F.3d 1273,

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1285 (9th Cir. 1996). If the treating physician’s opinions are uncontradicted, the ALJ may

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disregard them only after giving clear and convincing reasons for doing so. Id. The ALJ may

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reject the treating physician’s contradicted opinion only if she sets forth “specific and legitimate

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reasons supported by substantial evidence in the record.” Lester v. Chater, 81 F.3d 821, 830

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(9th Cir.1996) (punctuation modified).

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contradicted by the medical opinion of the examining consultant, Christiansen. Accordingly,

In this case, Herron’s opinion of disability is

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the ALJ’s decision to discount Herron’s opinion must be supported by “specific and legitimate

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reasons supported by substantial evidence in the record.” Lester v. Chater, 81 F.3d 821, 830

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(9th Cir.1996) (punctuation modified).

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In this case, the ALJ explained that she gave Herron’s opinions “little weight” because,

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among other things, his opinion was written during a period when Tearne was abusing drugs

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and therefore his opinion may reflect Tearne’s functional limitations at that time rather than

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during a period of sobriety. (Tr. 30-31) Herron did not support his opinion with references to

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specific portions of the medical record, so it is unclear what time period this evaluation relates

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to. (Tr. 421) The court finds this is a specific and legitimate reason for discounting Herron’s

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opinion.

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The court notes that it is possible, if not probable, that the opinion is meant to reflect the

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limitations that Tearne “usually” displayed during the period of time that the treating

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relationship lasted. Because Tearne “usually” was abusing drugs, this opinion would naturally

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reflect the limitations resulting from his mental impairments combined with the limitations

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resulting from his drug abuse. And therefore it is likely that the opinion overestimates the

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limitations that would be present during a period of sobriety.

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The decision of the ALJ is supported by substantial evidence and free from legal error.
Accordingly,

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IT IS ORDERED that the final decision of the Commissioner is affirmed. The Clerk of
the Court is directed to prepare a judgment and close this case.

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DATED this 29th day of March, 2019.

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