Sutherland v. Astrue

Filing 21

ORDER. ORDERED that the decision of the Commissioner that plaintiff was not disabled is REVERSED and REMANDED for further proceedings consistent with this opinion by Judge Philip A. Brimmer on 03/31/14. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-01890-PAB
ADAM K. SUTHERLAND,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER

This matter is before the Court on plaintiff Adam Sutherland’s complaint [Docket
No. 1], filed on July 20, 2012. Plaintiff seeks review of the final decision of defendant
Carolyn W. Colvin (the “Commissioner”) denying plaintiff’s claim for disability insurance
benefits and supplemental security income under Titles II and XVI of the Social Security
Act (the “Act”), 42 U.S.C. §§ 401-33 and 1381-83c.1 The Court has jurisdiction to
review the Commissioner’s final decision under 42 U.S.C. § 405(g).
I. BACKGROUND
On January 21, 2009, plaintiff applied for disability benefits under Title II and
Title XVI of the Act. R. at 14. Plaintiff alleged that he had been disabled since
September 23, 2008. Id. After an initial administrative denial of his claim, plaintiff
received a hearing before an Administrative Law Judge (“ALJ”) on November 3, 2010.

1

The Court has determined that it can resolve the issues presented in this matter
without the need for oral argument.

Id. On December 17, 2010, the ALJ issued a decision denying plaintiff’s claim. Id. at
24.
The ALJ found that plaintiff had the following severe impairments: “left shoulder
disorder, left elbow disorder, bipolar disorder with psychotic features, personality
disorder, and polysubstance use and dependence including alcohol, hallucinogens,
methamphetamines, and marijuana.” Id. at 17. The ALJ found that plaintiff’s
impairments meet listings 12.04 (affective disorders), 12.08 (personality disorders), and
12.09 (substance addiction disorders) of C.F.R. Part 404, Subpart P, Appendix 1. Id. at
17. The ALJ further found that, if plaintiff stopped using substances, his remaining
impairments would qualify as severe, but would no longer meet any of the listed
impairments and that plaintiff would have the residual functional capacity (“RFC”) to
perform work at all exertional levels with the following exertional and nonexertional limitations: he is able to do frequent pushing and pulling with his
left non-dominant upper extremity, can do occasional reaching above the
shoulder with his left non-dominant upper extremity; mentally, the claimant
cannot perform any work involving safety operations or responsibility for the
safety of others; the claimant should not have any direct exposure in the
workplace to alcohol, marijuana, and illegal drugs; and the claimant is able
to have only occasional, non-intense interaction with supervisors, coworkers, and the public.
R. at 19. Based upon this RFC and in reliance on the testimony of a vocational expert
(“VE”), the ALJ concluded that the claimant would be able to perform his past relevant
work if he were to stop using substances. R. at 24.
The Appeals Council denied plaintiff’s request for review of this denial. R. at 1.
Consequently, the ALJ’s decision is the final decision of the Commissioner. Plaintiff
argues that the ALJ erred in (1) failing to properly apply the five-step evaluation process
in determining whether substance abuse could be a material factor contributing to
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plaintiff’s disability; (2) finding that plaintiff is dependent on methamphetamines;
(3) failing to determine what plaintiff’s RFC would be if he continued to use alcohol and
other substances; (4) failing to discuss the opinions of several treating physicians
included in plaintiff’s medical record; and (5) relying on impermissible factors in
assessing plaintiff’s credibility.
II. ANALYSIS
A. Standard of Review
Review of the Commissioner’s finding that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standards and whether
the decision is supported by substantial evidence in the record as a whole. See Angel
v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). The district court may not reverse
an ALJ simply because the court may have reached a different result based on the
record; the question instead is whether there is substantial evidence showing that the
ALJ was justified in his decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir.
1990). “Substantial evidence is more than a mere scintilla and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). Moreover, “[e]vidence is not
substantial if it is overwhelmed by other evidence in the record or constitutes mere
conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The district
court will not “reweigh the evidence or retry the case,” but must “meticulously examine
the record as a whole, including anything that may undercut or detract from the ALJ’s
findings in order to determine if the substantiality test has been met.” Flaherty, 515

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F.3d at 1070. Nevertheless, “if the ALJ failed to apply the correct legal test, there is a
ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan,
987 F.2d 1482, 1487 (10th Cir. 1993).
B. The Five-Step Evaluation Process
To qualify for disability benefits, a claimant must have a medically determinable
physical or mental impairment expected to result in death or last for a continuous period
of twelve months that prevents the claimant from performing any substantial gainful
work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2). Furthermore,
[a]n individual shall be determined to be under a disability 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, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A) (2006). The Commissioner has established a five-step
sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R.
§ 404.1520; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). The steps of the
evaluation are:
(1) whether the claimant is currently working; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets an
impairment listed in appendix 1 of the relevant regulation; (4) whether the
impairment precludes the claimant from doing his past relevant work; and
(5) whether the impairment precludes the claimant from doing any work.
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citing 20 C.F.R.
§ 404.1520(b)-(f)). A finding that the claimant is disabled or not disabled at any point in
the five-step review is conclusive and terminates the analysis. Casias v. Sec’y of

4

Health and Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).
The claimant has the initial burden of establishing a case of disability. However,
“[i]f the claimant is not considered disabled at step three, but has satisfied her burden of
establishing a prima facie case of disability under steps one, two, and four, the burden
shifts to the Commissioner to show the claimant has the residual functional capacity
(RFC) to perform other work in the national economy in view of her age, education, and
work experience.” See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005);
see also Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). While the claimant has the
initial burden of proving a disability, “the ALJ has a basic duty of inquiry, to inform
himself about facts relevant to his decision and to learn the claimant’s own version of
those facts.” Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).
C. Relevant Facts
On January 11, 2008, plaintiff had an outburst in which he destroyed his laptop
computer because he was “wasting too much time on it” and got into an argument with
his mother. R. at 378. When she noticed there were red marks around plaintiff’s neck,
she brought him to the hospital, where he told staff had been “messing around with a
rope,” but denied trying to hang himself. Id. Physician Nathan Watkins determined
plaintiff was not suicidal and diagnosed him with adjustment disorder. Id. Plaintiff
tested positive for marijuana and reported drinking one six-pack of beer per week. Id.
In July 2008, plaintiff met with Stephen Bishop, a psychiatrist he had met with
several times in 2006 and 2007, R. at 391-92, who noted that plaintiff’s moods were up
and down and that he was drinking and using marijuana on an ongoing basis. R. at

5

389. On July 19, 2008, Dr. Bishop completed a Statement of Dependent Eligibility form
in which he found that plaintiff suffers from “severe bipolar disorder,” “dramatic mood
shifts,” “poor concentration,” paranoia, disorganized thinking, and an inability to
complete tasks. R. at 390. Dr. Bishop’s notes from April 2009 indicate that he warned
plaintiff that “substance use is incompatible with him getting better” and advised him to
seek help for his chemical dependency, but that plaintiff refused to do so. Id. at 389.
On May 20, 2009, plaintiff was admitted to the New Mexico Behavioral Health
Institute because of suicidal ideation. R. at 394. He stated that he was looking for his
girlfriend, but couldn’t find her, and that he felt like jumping off a bridge. Id. On intake,
physician Anthony Martinez noted that plaintiff “uses marijuana regularly, has
experimented with drugs but does not use them regularly, drinks beer every other day
but denies heavy alcohol use.” Id. Psychiatrist Barbara Troje evaluated plaintiff’s
mental status and found he had poor hygiene, slow psychomotor activity, normal
speech, a dysphoric mood, a restricted and angry affect, and coherent thought
processes. R. at 399. Plaintiff stated that he had previously been hospitalized for
“mental breakdowns” and that he experienced both auditory and visual hallucinations.
R. at 397, 399. With respect to plaintiff’s substance abuse, Dr. Troje noted plaintiff’s
“acknowledg[ment] that he smokes pot everyday to make him feel better.” R. at 397.
She also noted that plaintiff said he “smokes marijuana whenever he gets a chance and
alcohol. He may drink 2 or 3 beers at a time, but cannot recall the last time he drank
any alcohol.” Id. Dr. Troje diagnosed plaintiff with psychotic disorder (not otherwise
specified) and cannabis and alcohol abuse. R. at 399. She found he had a Global

6

Assessment of Functioning (“GAF”) score of 40.2 Id. On May 29, 2009, plaintiff was
discharged “in good spirits,” stating that he was not a danger to himself or others and
was ready to be discharged. R. at 401.
On August 14, 2009, plaintiff was examined by state agency psychologist Brett
Valette. R. at 404. Plaintiff reported being diagnosed with bipolar disorder at the age of
fourteen. Id. He stated that, “at the age of 18, he took too potent a dose” of lysergic
acid diethylamide (“LSD”), was hospitalized for hallucinations and paranoia, and has
“never been the same since.” R. at 404. Plaintiff reported the following daily activities:
catching the bus, skateboarding, looking for a job, drawing, playing with his dogs,
talking on the phone, doing laundry, grocery shopping, cooking, and bathing himself. R.
at 405. Dr. Valette noted that:
The client said he has had some problems with alcohol. He says he drinks
beer to try to deal with the pain. He said he drank two beers, three nights
ago. He also uses pot. He said he uses pot to deal with the pain. He has
a history of using LSD and mushrooms. He has not used any of the hard
drugs since 2003.
R. at 405. With respect to psychiatric symptoms, plaintiff reported racing thoughts and

2

“The GAF is a 100-point scale divided into ten numerical ranges, which permits
clinicians to assign a single ranged score to a person’s psychological, social, and
occupational functioning.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162 n.1 (10th Cir.
2012) (citing Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders
32, 34 (Text Revision 4th ed. 2000)). A GAF score between 31 and 40 indicates
“[s]ome impairment in reality testing or communication (e.g., speech is at times illogical,
obscure, or irrelevant) OR major impairment in several areas, such as work or school,
family relations, judgment, thinking, or mood (e.g., depressed man avoids friends,
neglects family, and is unable to work; child beats up younger children, is defiant at
home, and is failing at school).” Id.

7

psychotic features during manic episodes, talking to himself, hearing voices,
hallucinations in his peripheral vision, and feeling like he could “project [himself] out into
the future or out into space.” R. at 405-06. Dr. Valette diagnosed plaintiff with cannabis
abuse and polysubstance abuse, but found that his polysubstance abuse was in full
remission. R. at 406. Dr. Valette noted the possibility of alcohol abuse and bipolar
disorder (“Rule out alcohol abuse,” “Rule out bipolar II disorder”). Id. He also noted
that plaintiff had “a history of some conduct disorder and some mild antisocial
behavior.” R. at 407. He found plaintiff to have a GAF score of 65.3 Id.
On August 23, 2009, state agency psychiatric consultant Mark Suyeishi
evaluated the evidence in plaintiff’s file up to August 18, 2009 and completed a
Psychiatric Review Technique on plaintiff’s behalf. R. at 342-55. Dr. Suyeishi opined
that plaintiff suffers from a psychotic disorder and a substance abuse disorder, but that
these impairments are not severe. R. at 342-43, 350 (“Psychotic D/O (with
polysubstance and alcohol abuse),” “Cannibus [sic] abuse, R/O alcohol and
polysubstance abuse”). Dr. Suyeishi noted that bipolar disorder was a possible
diagnosis. R. at 345 (“R/O bipolar”). Dr. Suyeishi concluded that “claimant’s psychosis
is related to drug/alcohol use, when not taking drugs/alcohol he is not severe.” R. at
354.
On February 18, 2010, plaintiff was admitted to a mental health facility in

3

A GAF score between 61 and 70 indicates “[s]ome mild symptoms (e.g.,
depressed mood and mild insomnia), OR some difficulty in social, occupational, or
school functioning (e.g., occasional truancy, or theft within the household), but generally
functioning pretty well, has some meaningful interpersonal relationships.” KeyesZachary, 695 F.3d at 1162 n.1.
8

Humboldt County, California “as a danger to [him]self and gravely disabled.” R. at 409.
He was brought to the hospital because he was acting disoriented, stating someone
was trying to kill him, and threatening to kill himself. R. at 411. His appearance was
dirty and disheveled, his behavior was disorganized, and his psychomotor activity was
hyperactive. Id. He reported being chased by demons. Id.
A February 19, 2010 assessment completed by social worker Laurie Sims
indicates plaintiff stated: that he wanted to smoke a “fucking joint, this is California,” “I
don’t take medications, I smoke pot”; and “I want to end it, there is nothing in this world
for me.” R. at 414. Ms. Sims noted that plaintiff was currently using substances on an
occasional basis. R. at 415. Ms. Sims opined plaintiff suffers from non-specific
psychosis, as well as social stressors, including homelessness, unemployment, lack of
social support, and polysubstance abuse. R. at 416-17. She concluded that
He appears to have learned to use manipulation as a means to survive
outside his families’ environment. . . . This writer did not observe him
responding to any internal stimuli experiencing any delusions. He appears
to be malingering. He is stating clearly that he has nothing to live for and is
also stating the only expectation he has of SV is to give him marijuana. He
is overly dramatic when he says he has no reason to live saying tearfully, “It’s
all my parents’ fault.” He seems immature.
R. at 417.
On March 2, 2010, staff psychiatrist Ruby Bayan completed a discharge
summary report for plaintiff, in which she noted that plaintiff
came to Humboldt County 2-3 weeks ago for unclear reason other than the
possibility of getting a 215 card since he takes [Tetrahydrocannabinol
(“THC”)]4 and was prescribed the same in Colorado. The patient admitted

4

THC refers to the “active isomers present in Cannabis, having been isolated
from marijuana.” Stedman’s Medical Dictionary 404330 (27th ed. 2000).
9

to using drugs including methamphetamine (meth) and acid, but timeline was
unclear. He also claimed that he used alcohol, unsure of the last drink.
R. at 409-11. She noted that “the patient uses THC but admitted to using meth and
acid and alcohol.” R. at 409. With respect to plaintiff’s mental status, Dr. Bayan
reported that he was disheveled with poor hygiene, had hyperactive psychomotor
activity but normal speech, had delusions that someone was trying to kill him but denied
suicidal or homicidal ideation, admitted to auditory hallucinations, was goal-directed in
his thinking, had impaired judgment and insight, and was oriented to time and place,
but not situation. R. at 409. She stated that plaintiff “continued to be floridly psychotic
for the first two days of hospitalization” and that, even after he began taking medication,
he “continued to be unpredictable with inappropriate language, and at one point the
evaluation had to be terminated because of cursing at this writer.” Id. at 410. She
found he had no auditory hallucinations at the time he was discharged. Id. Dr. Bayan
diagnosed plaintiff with schizoaffective disorder and antisocial personality disorder,
exacerbated by non-compliance with his medication. Id. He had a GAF score of 20 on
admission and 48 at discharge.5 Id. Dr. Bayan concluded that the “[p]rognosis is
guarded. The patient was noncompliant with previous treatment. He may not even
make it back home because of poor motivation.” R. at 411.
On March 16, 2010, psychiatrist George Kalousek, who initially evaluated plaintiff
in September 2009 and met with him on several occasions in 2010, completed a
5

A GAF score between 41 and 50 indicates “[s]erious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in
social, occupational, or school functioning (e.g., no friends, unable to keep a job).”
Keyes-Zachary, 695 F.3d at 1162 n.1.
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Psychiatric Review Technique and Mental Impairment Questionnaire on plaintiff’s
behalf. R. at 357-76. On the Psychiatric Review Technique, Dr. Kalousek opined that
plaintiff met the listings for psychotic disorders, affective disorders, anxiety-related
disorders, and substance addiction disorders. R. at 357. He found that plaintiff
suffered from hallucinations, grossly disorganized behavior, incoherent thought
associated with inappropriate affect, emotional withdrawal, depressive syndrome, and
manic syndrome. R. at 359-60. He diagnosed plaintiff with schizoaffective disorder,
bipolar type. Id. With respect to plaintiff’s substance use, Dr. Kalousek found that
plaintiff had abused THC but had not experienced “[b]ehavioral changes or physical
changes associated with the regular use of substances.” R. at 365. He found that
plaintiff has moderate restrictions in activities of daily living; marked difficulties in
maintaining social functioning; moderate difficulties in maintaining concentration,
persistence, or pace; and four or more repeated episodes of decompensation, each of
extended duration. R. at 367. He also found that a minimal change in plaintiff’s
environment would likely cause him to decompensate. R. at 368.
On the Mental Impairment Questionnaire, Dr. Kalousek found that plaintiff had
mild restrictions in activities of daily living, moderate difficulty maintaining social
functioning, marked difficulty in maintaining concentration, and one or two episodes of
decompensation within the previous twelve months. R. at 374. He opined that alcohol
and substance abuse do not contribute to plaintiff’s limitations. R. at 376.
At the administrative hearing on November 3, 2010, plaintiff testified that he had
used LSD when he was eighteen; that he had smoked marijuana in the past but, since
October 2009, has used it mostly in the form of a cream applied to his shoulder; that he
11

has not used any other illegal drugs; and that he drinks approximately nine beers a
week in the wintertime but does not “get out of control.” R. at 31-41. Plaintiff presented
a medical marijuana registry card, issued on July 13, 2010, to the ALJ. R. at 34.
Plaintiff also stated that in the spring of 2009, he “think[s] [he] got dosed up by a jealous
brother, who gave me too much acid on purpose,” inducing a manic hallucinatory state
that culminated in his May 2009 admission to a mental health facility in New Mexico. R.
at 50-51. Plaintiff testified that “most of the time” his manic episodes are not induced
by drugs or alcohol. R. at 52. Plaintiff testified that he was truthful with his treating
psychiatrist, George Kalousek, regarding his history of drug use and his medical
marijuana license. R. at 56.
D. The ALJ’s Decision
At step one, the ALJ found that plaintiff has the severe impairment of
polysubstance use and dependence, including alcohol, hallucinogens,
methamphetamine, and marijuana. R. at 17. At step two, the ALJ found that this
impairment meets the listing at 12.09: he stated that “claimant acknowledged that he
uses marijuana when available and drinks beer every other day” and noted that
plaintiff’s toxicology screen during his February 2010 hospitalization was positive for
THC. Id. at 17-18. In addition, the ALJ found at step two that, if plaintiff stopped using
substances, his mental and physical limitations would remain severe but would no
longer meet the criteria of the listings. Id. The ALJ explained that plaintiff
can bathe and dress, do his own laundry, shop in stores, and engage in
sports activities. In social functioning, the claimant would have mild
difficulties if the substance use was stopped. The claimant is often
inappropriate and emotionally labile, but usually gets along with others. With
regard to concentration, persistence or pace, the claimant would have mild
12

difficulties if the substance use was stopped. On testing, the claimant could
recall 3 items after 5 minutes, could spell ‘world’ correctly backward and
forward, and could do serial 3s. . . . the claimant would experience no
episodes of decompensation if the substance use was stopped. The
claimant’s toxicology screen was positive for cannabis when he was
hospitalized in February 2010, and he acknowledges using other drugs. A
review of the record suggests that the claimant’s suicidal thoughts are
associated with substance use.
R. at 19 (internal citations omitted). In support of his finding that plaintiff’s suicidal
thoughts were linked to substance abuse, the ALJ cited generally to the medical
records from plaintiff’s hospitalizations in May 2009 and February 2010. R. at 19 (citing
R. at 393-403, 409-27). The ALJ accorded substantial weight to the opinions of Drs.
Valette and Suyeishi on the basis that they were highly experienced psychiatrists with
knowledge of Social Security disability assessment standards and that their opinions
were consistent with the record as a whole. R. at 22-23.
Plaintiff argues that the ALJ’s finding that he suffers from a severe dependence
on methamphetamine or from polysubstance abuse is not supported by substantial
evidence. Docket No. 14 at 18-19. He further argues that the ALJ misapplied the
standard set forth in 42 U.S.C. § 423(d)(2)(C) because he did not complete all five
steps of the analysis before considering whether plaintiff would be disabled if he
abstained from substance use. Docket No. 14 at 14-17. Finally, plaintiff argues that
the ALJ’s conclusion that plaintiff would not be disabled if he refrained from using
substances is not supported by substantial evidence. Docket No. 14 at 19-23.
The Commissioner counters that there was sufficient evidence to support a
finding that plaintiff continues to use marijuana regularly and hard drugs occasionally.
Docket No. 15 at 17. The Commissioner argues that the ALJ was not required to
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proceed to steps four and five of the analysis once he determined at step three that,
taking substance use into account, plaintiff is disabled. Docket No. 15 at 15-17.
Finally, the Commissioner argues that the ALJ’s RFC determination was reasonably
linked to the evidence in the record. Docket No. 15 at 20-28.
Under the Social Security Act, an individual is not disabled “if alcoholism or drug
addiction would . . . be a contributing factor material” to the determination of disability.
42 U.S.C. § 423(d)(2)(C). To make this determination, an ALJ must first determine
whether a claimant is disabled, taking his substance abuse into account, and must then
consider whether the ALJ would make the same determination if the claimant stopped
using drugs or alcohol. 20 C.F.R. § 404.1535; Drapeau v. Massanari, 255 F.3d 1211,
1214-15 (10th Cir. 2001). An ALJ may not find claimant’s substance abuse is material
if “it is not possible to separate the mental restrictions and limitations imposed by”
substance abuse from those caused by other mental disorders or if there is no
acceptable medical source who can “project what limitations would remain if the
claimant stopped using drugs or alcohol.” Salazar v. Barnhart, 468 F.3d 615, 623-24
(10th Cir. 2006).
An ALJ’s “lay conclusion that drug use might be expected to affect plaintiff’s
ability to respond appropriately in the workplace, not otherwise tied to the medical
record, is not substantial evidence.” King v. Astrue, No. 09-cv-02112-REB, 2010 WL
3720039, at *4 (D. Colo. Sept. 13, 2010) (citing Winning v. Comm’r of Soc. Sec., 661 F.
Supp. 2d 807, 823 (N.D. Ohio 2009)); see also Kangail v. Barnhart, 454 F.3d 627, 629
(7th Cir. 2006) (remanding where ALJ incorrectly attributed claimant’s bipolar disorder
to substance abuse because “the medical literature, while noting a positive correlation
14

between the two conditions and speculating that alcohol may trigger bipolar symptoms,
does not indicate that the disorder itself can be so caused”); Vigil v. Astrue, No. 11-cv0255-WJM, 2012 WL 2523037, at *4 (D. Colo. June 29, 2012) (remanding case due to
“complete lack of medical evidence regarding Plaintiff’s mental health impairments
when he is abusing alcohol and how those impairments might be affected if he stopped
abusing alcohol”); Abeyta v. Astrue, No. 09-cv-02437-WJM, 2011 WL 2531256, at *6
(D. Colo. June 24, 2011) (in the absence of “medical evidence in the record separating
out the effects of [drug and alcohol abuse] from other impairments, the ALJ should then
have determined that Plaintiff’s psychological and cognitive impairments were severe
and that Plaintiff is disabled”). Moreover, “the fact that substance abuse aggravate[s] [a
claimant’s] mental illness does not prove that the mental illness itself is not disabling.”
Kangail, 454 F.3d at 629.
The opinion of a treating physician is generally entitled to greater weight than
that of a non-treating physician because of the unique perspective derived from a
treating relationship. 20 C.F.R. § 404.1527(c)(2). Thus, an ALJ must accord controlling
weight to the opinion of a treating physician where that opinion is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence” in the record. Id. Moreover, the
opinion of a treating physician merits some measure of deference to be determined
based on an application of the factors listed in 20 C.F.R. § 404.1527(c)(2), even if it is
not entitled to controlling weight. 20 C.F.R. § 404.1527(c)(2)(i)-(ii). Where the opinion
of a treating physician is in conflict with that of a consultative physician, the
“consultative physician’s report should be examined to see if it outweighs the treating
15

physician’s report, not the other way around.” Hamlin v. Barnhart, 365 F.3d 1208, 1220
n.13 (10th Cir. 2004) (internal citations omitted). “[F]indings of a nontreating physician
based upon limited contact and examination are of suspect reliability.” Frey v. Bowen,
816 F.2d 508, 515 (10th Cir. 1987).
The ALJ’s finding that plaintiff suffers from polysubstance abuse is linked to
substantial evidence in the record, namely, multiple diagnoses of cannabis abuse and
possible alcohol abuse, as well as plaintiff’s own references to using a variety of drugs.
See, e.g., R. at 357, 365, 378, 389, 394, 397, 405, 409, and 414. After finding that
plaintiff suffers from substance abuse, the ALJ applied the correct legal standard by
first determining that plaintiff currently suffers from a disability and then considering
whether that disability would persist in the absence of substance use. See 20 C.F.R.
§ 404.1535; Drapeau, 255 F.3d at 1214-15. Plaintiff’s argument that the ALJ was
required to complete steps four and five of his analysis after finding plaintiff disabled at
step three is not supported by the Social Security regulations or applicable case law.
See id.
Plaintiff also challenges the ALJ’s finding that plaintiff’s testimony regarding the
intensity, persistence, and effects of his impairments was not fully credible.6 Docket
6

Plaintiff argues that the ALJ erred in finding that plaintiff lacked credibility
because he had a “pecuniary interest in the outcome of this disability claim.” Docket
No. 14 at 28 (citing R. at 21). Since all claimants have a pecuniary interest in receiving
benefits, the fact of applying for benefits is not, on its own, a basis for finding that a
claimant’s credibility is compromised. Compare Ratto v. Sec’y, Dept. of Health &
Human Servs., 839 F. Supp. 1415, 1429 (D. Or. 1993) (“If the desire or expectation of
obtaining benefits were by itself sufficient to discredit a claimant’s testimony, then no
claimant (or their spouse, or friends, or family) would ever be found credible.”) with
Gaddis v. Chater, 76 F.3d 893, 896 (8th Cir. 1996) (upholding ALJ’s finding that
plaintiff’s claim indicated a “strong element of secondary gain” where plaintiff admitted
16

No. 14 at 23-30 (citing R. at 21-22). The Court need not reach this issue, however,
because the Court finds that the ALJ’s conclusion that plaintiff’s drug use is a material
factor contributing to his disability is not supported by substantial evidence. In making
this determination, the ALJ relied on the following evidence: (1) Dr. Valette found that
plaintiff can bathe, dress, do his own laundry, shop, and play sports; (2) Dr. Kalousek
found that plaintiff is seriously limited, but not precluded, from getting along with coworkers; (3) plaintiff has worked at “many jobs” since being diagnosed with bipolar
disorder at the age of fourteen; (4) plaintiff was able to perform serial 3s, spell “world”
backwards, and remember three items after five minutes; (5) plaintiff tested positive for
marijuana when he was hospitalized in 2010; (6) Dr. Valette’s assessment did not
indicate plaintiff was unable to work; (7) plaintiff was able to follow and respond
appropriately to questions at the administrative hearing; (8) the ALJ found that plaintiff
was not a credible witness; (9) plaintiff’s work history prior to the alleged onset of his
disability was sporadic; (10) Ms. Sims noted her belief that plaintiff “lies about his
symptoms for secondary gain”; (11) Dr. Suyeishi concluded that plaintiff’s symptoms
are not severe when he is not under the influence of drugs or alcohol; and (12) Dr.
Kalousek found that plaintiff had a very good ability to understand short instructions,
make simple work decisions, and request assistance when needed. R. at 19-23. This
evidence–with the exception of the medical opinions of Dr. Suyeishi–does not constitute
“medical evidence regarding Plaintiff’s mental health impairments when he is abusing
alcohol” or drugs and thus cannot serve as a basis for disentangling the impact of

to physician that “he can go out and find a minimum wage job at any time, but he is
more worried about the future.”).
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plaintiff’s substance abuse from his mental impairments. Vigil, 2012 WL 2523037, at
*4; see also King, 2010 WL 3720039, at *4; Kangail, 454 F.3d at 629; Abeyta, 2011 WL
2531256, at *6.
The ALJ accorded only moderate weight to Dr. Kalousek’s opinion that alcohol
and substance use do not contribute to plaintiff’s mental impairments, despite Dr.
Kalousek’s treating relationship with plaintiff, because of the ALJ’s conclusion that Dr.
Kalousek “is not fully familiar with the claimant’s substance use history.” R. at 23. The
ALJ did not cite any evidence in support of this conclusion. Plaintiff testified at the
hearing that he had been truthful with Dr. Kalousek regarding his past drug use and his
medical marijuana license. R. at 56. Moreover, Dr. Kalousek found plaintiff met the
listing for substance addiction disorders, demonstrating awareness of plaintiff’s
substance use. R. at 357. Accordingly, the ALJ did not state a legitimate reason for
according Dr. Kalousek’s opinion less than controlling weight, did not apply the relevant
factors listed in 20 C.F.R. § 404.1527(c)(2), and did not apply the proper standard in
deciding to rely on the opinion of Dr. Suyeishi over that of Dr. Kalousek. See Hamlin,
365 F.3d at 1220 n.13. Nor did the ALJ take into account that the opinions of Drs.
Valette and Suyeishi–unlike that of Dr. Kalousek–were developed prior to plaintiff’s
2010 hospitalization. See R. at 18, 22-23.
In sum, this matter must be remanded so that the ALJ can properly consider any
medical evidence regarding the impact of plaintiff’s substance use on his mental
impairments.

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III. CONCLUSION
In light of the Court’s decision, it is not necessary to consider plaintiff’s remaining
arguments. For the foregoing reasons, it is
ORDERED that the decision of the Commissioner that plaintiff was not disabled
is REVERSED and REMANDED for further proceedings consistent with this opinion.

DATED March 31, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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