Garcia v. Colvin

Filing 13

ORDER AND OPINION affirming the final decision of the Commissioner. Signed by Magistrate Judge Alan J. Baverman on 9/15/15. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JOSE DANIEL GARCIA,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner
of Social Security,
Defendant.

:
:
:
:
:
:
:
:
:
:
:

CIVIL ACTION FILE NO.
1:14-CV-00974-AJB

O R D E R A N D O P I N I O N1
Plaintiff Jose Daniel Garcia (“Plaintiff”) brought this action pursuant to sections
205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3), to
obtain judicial review of the final decision of the Acting Commissioner of the Social
Security Administration (“the Commissioner”) denying his applications for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income Benefits (“SSI”) under

1

The parties have consented to the exercise of jurisdiction by the
undersigned pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil
Procedure. [See Dkt. Entries dated 4/10/2014 and 4/11/2014]. Therefore, this Order
constitutes a final Order of the Court.

AO 72A
(Rev.8/8
2)

the Social Security Act.2 For the reasons below, the undersigned AFFIRMS the final
decision of the Commissioner.
I.

PROCEDURAL HISTORY
Plaintiff filed an application for DIB on January 24, 2012 and an application for

SSI on December 14, 2011, alleging disability commencing on July 25, 2010. [Record
(hereinafter “R”) 85, 86, 98, 99]. Plaintiff’s applications were denied initially and on
reconsideration. [R111, 112, 146, 147]. Plaintiff then requested a hearing before an
Administrative Law Judge (“ALJ”), and an evidentiary hearing was held on
November 29, 2012. [R47-84]. The ALJ issued a decision on October 21, 2013,
finding that Plaintiff was not disabled. [R16-31]. Plaintiff sought review by the
2

Title II of the Social Security Act provides for federal Disability Insurance
Benefits. 42 U.S.C. § 401 et seq. Title XVI of the Social Security Act,
42 U.S.C. § 1381, et seq., provides for Supplemental Security Income Benefits for the
disabled. Title XVI claims are not tied to the attainment of a particular period of
insurance disability. Baxter v. Schweiker, 538 F. Supp. 343, 350 (N.D. Ga. 1982).
Otherwise, the relevant law and regulations governing the determination of disability
under a claim for DIB are nearly identical to those governing the determination under
a claim for SSI. Wind v. Barnhart, 133 Fed. Appx. 684, 690 n.4 (11th Cir. June 2, 2005)
(citing McDaniel v. Bowen, 800 F.2d 1026, 1031 n.4 (11th Cir. 1986)). In general, the
legal standards to be applied are the same regardless of whether a claimant seeks DIB,
to establish a “period of disability,” or to recover SSI, although different statutes and
regulations apply to each type of claim. See 42 U.S.C. § 1383(c)(3) (establishing that
the judicial provisions of 42 U.S.C. § 405(g) are fully applicable to claims for SSI).
Therefore, to the extent that the Court cites to SSI cases, statutes, or regulations, they
are equally applicable to Plaintiff’s DIB claims, and vice versa.
2

AO 72A
(Rev.8/8
2)

Appeals Council, and the Appeals Council denied Plaintiff’s request for review on
February 11, 2014, making the ALJ’s decision the final decision of the Commissioner.
[R2-7].
Plaintiff then filed an action in this Court on April 2, 2014, seeking review of the
Commissioner’s decision. [See Docs.1, 3]. The answer and transcript were filed on
August 6, 2014. [Docs. 7-8]. On September 9, 2014, Plaintiff filed a brief in support
of his petition for review of the Commissioner’s decision, [Doc. 11], and on October 8,
2014, the Commissioner filed a response in support of the decision, [Doc. 12]. Plaintiff
did not file a reply brief and the parties agreed to waive oral argument. [See Dkt.;
Dkt. Entry dated 4/16/15]. The matter is now before the Court upon the administrative
record and the parties’ pleadings and briefs and is accordingly ripe for review pursuant
to 42 U.S.C. §§ 405(g) and 1383(c)(3).

3

AO 72A
(Rev.8/8
2)

II.

STATEMENT OF FACTS3
A.

Background

Plaintiff was 44 years old on the alleged onset date of disability. [R85]. Plaintiff
has a high school education, [R51, 96],4 and past relevant work as a greens keeper,
landscape specialist, salad maker, golf cart handler, and sales representative. [R77].
Plaintiff alleges disability due to hepatitis C, post traumatic stress disorder (“PTSD”),
asthma, thoracic aortic aneurysm, bipolar disorder with a history of hypomania,
thrombocytopenia, rhabdomyolysis, splenomegaly, hematochezia, and hypokalemia.
[R85-86, 98-99].
B.

Medical Records

In November 2002, Plaintiff had a right tibia plateau fracture (fracture in the
right knee) which required surgery. [R1119-20]. Plaintiff continued to have right knee
pain and swelling. [R1040]. A x-ray of the right knee in March 2010 revealed that
Plaintiff was status post open reduction internal fixation with screws across the medial

3

The records referenced in this section are those deemed by the parties to
be relevant to this appeal. [See Docs. 11, 12].
4

Plaintiff completed his GED. [Id.].
4

AO 72A
(Rev.8/8
2)

and lateral tibial plateau and joint effusion with possible loose bodies overlying the
superior aspect of the bursa. [Id.].
In July 2010, Plaintiff presented to the emergency room at North DeKalb
Medical Center with complaints of chest pain. [R1252]. Plaintiff reported that he lost
his job and had been off his blood pressure medications for the past two months. [Id.].
He denied any visual loss. [Id.]. Plaintiff was treated with nitroglycerin and aspirin
which resolved his elevated blood pressure, and was told that it was necessary for him
to restart his medications. [R1253]. Plaintiff returned to the emergency room in
September 2010 with complaints of elevated blood pressure. [R1260]. On that
occasion, Plaintiff tested positive for marijuana. [R1260]. After being treated with
medication, Plaintiff’s blood pressure readings improved. [R1262]. Plaintiff also was
treated with medication for wheezing due to bronchitis. [R1262].
In October 2010, Plaintiff returned to the North DeKalb emergency room, and
was found to have an accelerated hypertension and an aortic aneurysm. [R1264]. The
notes state that Plaintiff had poor compliance with medication, did multiple drugs, was
a poor historian and not cooperative. [Id.]. Counseling for drug use was recommended.
[R1265].

5

AO 72A
(Rev.8/8
2)

In November 2011, Plaintiff was treated at Piedmont Hospital’s emergency room
for chest pain and hypertension. [R384]. There was initial difficulty in trying to
control Plaintiff’s blood pressure, but eventually it improved within 24 hours. [Id.].
His thoracic aneurysm was reevaluated, and no dissection or leakage was found. [Id].
Plaintiff also developed an episode of painless hematochezia5 which was better with
medication. [Id.]. Plaintiff also underwent a left heart catheterization which resulted
in normal findings. [Id.]. Plaintiff reported smoking marijuana regularly. [R387].
In February 2012, lumbar spine images revealed degenerative disc disease at C5C6 and C6-C7. [R540]. Also in February 2012, Dianne Bennett-Johnson, M.D.,
performed a consultative examination. [R396]. Dr. Bennett-Johnson noted that
Plaintiff’s hypertension is currently uncontrolled with a history of thoracic aneurysm,
which has a potential for rupture since blood pressure is untreated.

[R398].

Dr. Bennett-Johnson also noted that Plaintiff has a history of hepatitis C without signs
of end-stage liver dysfunction. [Id.]. She diagnosed Plaintiff with depression, history
of posttraumatic stress, uncontrolled and untreated hypertension, multiple aches, rectal
bleeding, history of hepatitis C and thoracic aortic aneurysm. [Id.].
5

Hematochezia is the passage of blood in the feces. Merriam-Webster
Medical Dictionary, http://www.merriam-webster.com/medlineplus/hematochezia (last
visited 9/14/2015).
6

AO 72A
(Rev.8/8
2)

In April 2012, Plaintiff presented with a fever and right-sided flank pain and was
positive for Murphy’s sign.6 [R403]. No aortic aneurysm was identified in an aortic
ultrasound. [R547].
On April 30, 2012, Stephen Hamby, Ph.D., performed a psychological evaluation
and opined that
[Plaintiff] would be able to understand, remember and carry out simple
instructions. He would be able to sustain his attention in order to
complete simple tasks. He would be expected to continue to have
moderate difficulty relating to supervisors and coworkers. [Plaintiff]
would be at mild to moderate risk for psychiatric decompensation under
stressful work conditions.
[Plaintiff]’s mental condition would be expected to improve if he received
mental health treatment, including a psychiatric evaluation for appropriate
psychotropic medication. Additional improvement would be expected to
occur if he permanently and completely stopped all use of marijuana.
[R414].

6

Murphy’s sign is a test for gallbladder disease in which the patient is asked
to inhale while the examiner’s fingers are hooked under the liver border at the bottom
of the rib cage. The inspiration causes the gallbladder to descend onto the fingers,
producing pain if the gallbladder is inflamed. Deep inspiration can be very much
limited. Mosby’s Medical Dictionary (8th ed 2009).
7

AO 72A
(Rev.8/8
2)

In December 2012, Plaintiff began treatment at Saint Joseph’s Mercy Care
Services for behavioral health treatment and treatment of his blood pressure. [R1150,
1154]. He was initially diagnosed with severe depression. [R1155].
In July 2013, Plaintiff received treatment from Lorraine Anderson Stevens, LPC,
at Newport Integrated Behavioral Healthcare, Inc. [R1337-42]. Plaintiff presented
with symptoms of depression including insomnia, no appetite and feelings of sadness.
[R1338]. It was noted that Plaintiff experienced symptoms of PTSD including
flashbacks from his abusive childhood. [Id]. Plaintiff also reported thoughts of suicide,
but denied any intent to harm himself. [R1340]. Plaintiff reported that he smoked
marijuana daily and did LSD which helps his paranoia. [R1338]. He indicated that he
was not addicted to marijuana and did not want to stop using it. [Id.]. Plaintiff was
diagnosed with PTSD, Major Depressive Disorder, recurrent with Psychotic Features,
and high blood pressure. [R1342].
C.

Evidentiary Hearing Testimony

At the hearing before the ALJ, Plaintiff testified that it was difficult to work
because his knee would swell like a baseball. [R53-54]. He further testified that his
memory was not that good. [R55]. He also testified to being abused in foster care as
a child. [R59].
8

AO 72A
(Rev.8/8
2)

Plaintiff testified that he cannot see due to high blood pressure and his feet are
starting to swell. [R61]. After being questioned about being able to drive, he testified
that he cannot see up close to read, but can see things that are far away, like signs.
[R61-62]. He did not prepare any meals nor wash dishes, go shopping or have hobbies,
but accompanies people that do shop. [R62-63]. Plaintiff further testified that he has
difficulty sleeping because of the medication and due to worry. [R63].
He stated that he can only stand for about five minutes before he gets sore due
to a broken bone in his knee. [R64]. He can sit for an hour before his legs start to hurt
due to sciatica. [Id.].
Plaintiff’s attorney at the hearing reported to the ALJ that Plaintiff suffers from
a number of severe impairments, many of which stemmed from Plaintiff’s
hypertension. [R66]. Although recognizing that the medical records indicated that
there were issues of noncompliance with the medication, counsel proffered that
noncompliance was due to Plaintiff’s inability to pay for medications and side effects
of the medications. [Id.]. The attorney stated that the hypertension medications do not
work and side effects have been significant in causing other conditions, such as
excessive drowsiness. [Id.]. The attorney further stated that Plaintiff’s issues with bone
spurs and degenerative disc disease caused some physical limitations, which were
9

AO 72A
(Rev.8/8
2)

exacerbated due to obesity. [Id.]. The attorney stated that Plaintiff’s combination of
physical and mental impairments rendered him disabled and noted that the record
indicates Plaintiff has bipolar disorder, schizophrenia, possible PTSD, and depression.
[R67]. The attorney also noted that Plaintiff has been diagnosed with rhabdomyolysis.7
[Id.]. He also argued that any substance abuse is separate and apart from his physical
and mental impairments. [R67-68].
Plaintiff testified that he no longer uses marijuana and stopped two or three
weeks prior to the hearing. [R68]. Plaintiff also testified that when he did use
marijuana, it would only be socially, and not everyday. [R69]. He testified that he
experimented with LSD for depression about six times, the last time being two or three
months prior to the hearing. [R69-70]. He further testified that when he was 20 years
old, he tried heroin and hated it; he also took Oxycodone prescribed by his doctor but
hated the way it made him feel. [R70].
Plaintiff also testified that he receives mental health treatment from St. Joseph’s
and has just started treatment at Newport Mental Health. [Id.]. Plaintiff testified that
7

Rhabdomyolysis is the breakdown of muscle tissue that leads to the release
of muscle fiber contents into the blood. These substances are harmful to the kidney and
often cause kidney damage.
MedLinePlus Medical Dictionary,
https://www.nlm.nih.gov/medlineplus/ency/article/000473.htm (last visited
09/14/2015).
10

AO 72A
(Rev.8/8
2)

he is being evaluated mainly for suicide because he thinks about suicide almost daily.
[Id.].
Plaintiff also testified that his previous jobs did not end well because he has
trouble with people in that he gets irritated quickly and cannot handle conflict
resolutions. [R71-72].
In terms of pain, Plaintiff testified that while he was sitting at the hearing, his
neck was going numb and his fingertips were kind of cold, which occurs daily to the
point where he could not really do anything. [R72-73]. Plaintiff also testified that his
medication made him sleepy, caused him to choke, and made him think about suicide.
[R72, 73-74].
The vocational expert (“VE”) testified that a hypothetical person with Plaintiff’s
education and previous work experience, who could perform work at all exertional
levels with the following limitations – understand, remember and carry out simple
instructions, get along with co-workers, the public and supervisors; and can adapt to
change in the work setting provided change is introduced gradually – could return to
his past work of a landscape specialist or a port (golf cart handler). [R77-78].
The VE then testified that a hypothetical person with Plaintiff’s education and
previous work experience, who could only perform work at the light level with the
11

AO 72A
(Rev.8/8
2)

following limitations – no more than occasional climbing and no climbing of ladders,
ropes and scaffolds; avoid concentrated exposure to extreme cold and hazards such as
machinery, heights, etc.; understand, remember, and carry out simple instructions;
limited to no more than occasional contact with the public, co-workers and supervisors;
and can adapt to change in the work setting provided change is introduced gradually
– could not return to his past relevant work, but there would be other jobs that the
person could perform such as laundry sorter, housekeeping cleaner, and ticket seller.
[R78-79].
The VE then testified that a hypothetical person with the same limitations as the
second hypothetical but with a sit/stand option at will throughout the workday, could
perform the job of ticket seller and booth cashier. [R79-80].
The VE also testified that at the sedentary level, a person with the same
limitations as in the two previous hypotheticals could perform a surveillance system
monitor job. [R80]. However, if the person were off task in excess of twenty per cent
of the workday, that person could not work. [Id.]. The VE opined that such a person
could perform a surveillance system monitor job, even with additional restrictions
posed by Plaintiff’s attorney’s hypotheticals. [R81-82].

12

AO 72A
(Rev.8/8
2)

III.

ALJ’S FINDINGS OF FACT
The ALJ made the following findings of fact and conclusions of law:
1.

The claimant meets the insured status requirements of the
Social Security Act through September 30, 2016.

2.

The claimant has not engaged in substantial gainful activity
since July 25, 2010, the alleged onset date
(20 CFR 404.1520(b), 20 CFR 404.1571 et seq., 416.920(b)
and 416.971 et seq.).

3.

The claimant has the following severe impairments:
depressive disorder, NOS; cannabis dependence; essential
hypertension; and status post right knee fracture with
surgical repair and hardware placement
(20 CFR 404.1520(c) and 416.920(c)).

...
4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), and 416.920(d)).

...

5.

After careful consideration of the entire record, the
undersigned finds, based on all of the impairments, including
the substance use disorder, the claimant has the residual
functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b), except with no more
than occasional climbing; he is limited to no climbing with
respect to ladders, ropes, or scaffolds; he must exercise a
13

AO 72A
(Rev.8/8
2)

sit/stand option at will throughout the workday; he is to
avoid concentrated exposure to extreme cold and hazards
such as machinery, heights, and similar circumstances; he
can understand, remember, and carry out simple instructions;
he is limited to no more than occasional contact with coworkers, the public, and supervisors; he can adapt to change
in the work setting provided change is introduced gradually;
and he would tend to be off task and unable to function for
about twenty percent of the workday.
...
6.

The claimant is unable to perform any past relevant work
(20 CFR 404.1565 and 416.965).

...
7.

The claimant was born on December 10, 1965 and was
44 years old, which is defined as a younger individual
age 18-49, on the alleged onset date (20 CFR 404.1563 and
416.963).

8.

The claimant has at least a high school education and is able
to communicate in English (20 CFR 404.1564 and 416.964).

9.

The claimant’s acquired job skills do not transfer to other
occupations within the residual functional capacity defined
above (20 CFR 404.1568 and 416.968).

10.

Considering the claimant’s age, education, work experience,
and residual functional capacity based on all of the
impairments, including the substance use disorder, there are
no jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR
404.1560(c), 404.1566, 416.960(c), and 416.966).

14

AO 72A
(Rev.8/8
2)

...
11.

If the claimant stopped the substance use, the remaining
limitations would cause more than a minimal impact on the
claimant’s ability to perform basic work activities; therefore
the claimant would continue to have a severe impairment or
combination of impairments.

...

12.

If the claimant stopped the substance use, the claimant would
not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), and 416.920(d)).

...

13.

If the claimant stopped the substance use, the claimant would
have the residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) and 416.967(b), except
with no more than occasional climbing; he is limited to no
climbing with respect to ladders, ropes, or scaffolds; he must
exercise a sit/stand option at will throughout the workday; he
is to avoid concentrated exposure to extreme cold and
hazards such as machinery, heights, and similar
circumstances; he can understand, remember, and carry out
simple instructions; he is limited to no more than occasional
contact with co-workers, the public, and supervisors; and he
can adapt to change in the work setting provided change is
introduced gradually.

...

15

AO 72A
(Rev.8/8
2)

14.

If the claimant stopped the substance use, the claimant would
continue to be unable to perform past relevant work
(20 CFR 404.1565 and 416.965).

...

15.

Transferability of job skills is not material to the
determination of disability because using the
Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and
20 CFR Part 404, Subpart P, Appendix 2).

16.

If the claimant stopped the substance use, considering the
claimant’s age, education, work experience, and residual
functional capacity, there would be a significant number of
jobs in the national economy that the claimant could perform
(20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).

...
17.

The substance use disorder is a contributing factor material
to the determination of disability because the claimant would
not be disabled if he stopped the substance use
(20 CFR 404.1520(g), 404.1535, 416.920(g) and 416.935).
Because the substance use disorder is a contributing factor
material to the determination of disability, the claimant has
not been disabled within the meaning of the Social Security
Act at any time from the alleged onset date through the date
of this decision.

[R16-31].

16

AO 72A
(Rev.8/8
2)

In support of the decision, the ALJ first discussed Plaintiff’s medically
determinable impairments. [R19-20]. The ALJ noted that the medical records indicate
that Plaintiff was diagnosed with asthma, however, there is no indication that Plaintiff
suffers more than minimal functional limitations due to this impairment. [R19]. The
ALJ determined that the following impairments were non-severe: obesity, hepatitis C,
rhabdomyolysis, splenomegaly,8 hematochezia, hypokalemia,9 thrombocytopenia,10 and
thoracic aortic aneurysm. [Id.]. The ALJ further discussed Plaintiff’s allegations of
posttraumatic stress disorder (“PTSD”) and bipolar disorder with history of hypomania,
however the ALJ did not find these to be medically determinable impairments as the
record does not include a formal diagnosis of these impairments, Plaintiff is not on any

8

Splenomegaly is a larger-than-normal spleen. MedLinePlus Medical
Encyclopedia, https://www.nlm.nih.gov/medlineplus/ency/article/003276.htm (last
visited 09/14/2015).
9

Hypokalemia is when the amount of potassium in the blood is lower than
normal.
MedLinePlus
Medical
Encyclopedia,
https://www.nlm.nih.gov/medlineplus/ency/article/000479.htm (last visited
09/14/2015).
10

Thrombocytopenia is a condition in which blood has a lower than normal
number of blood cell fragments called platelets. NIH National Heart, Lung and Blood
Institute, http://www.nhlbi.nih.gov/health/health-topics/topics/thcp (last visited
09/14/2015).
17

AO 72A
(Rev.8/8
2)

medication or receiving treatment for the condition, and the impairments are selfreported. [R20].
In evaluating whether Plaintiff’s severe impairments meet or equal a listing, the
ALJ found that Plaintiff has mild restrictions in activities of daily living as Plaintiff is
able to shower and dress, his friends help him with cooking and cleaning, and he is
unable to stand for a long time. [R21]. The ALJ also found that Plaintiff has moderate
difficulties in social functioning as Plaintiff has alleged that he has difficulty forming
social relationships to the point that he cannot keep a job and testified that he is fearful
in large crowds. The ALJ also found that Plaintiff has moderate difficulties in
maintaining concentration, persistence or pace as Plaintiff indicated he has difficulty
with memory, concentration, following instructions, and completing tasks. The ALJ
further noted that Plaintiff indicated that he was able to follow written instructions, but
does not follow spoken instructions or handle stress or changes in routine well. [Id].
With regard to the RFC, including Plaintiff’s substance use disorder, the ALJ
focused on Plaintiff’s allegations and hearing testimony. [R23]. The ALJ noted
Plaintiff’s alleged impairments and that Plaintiff reported panic attacks and suicidal
thoughts. He further noted that Plaintiff contends that he has numbness in his hands
and fingers and has difficulty walking. The ALJ stated that at the hearing Plaintiff
18

AO 72A
(Rev.8/8
2)

testified that he was indigent and homeless, but has a car. Plaintiff also testified that
he is unable to work due to high blood pressure and that he has swelling in his legs, has
difficulty standing due to a previously broken bone in his knee, and that standing for
even five minutes causes his knee to swell; however he can sit for about thirty minutes
at a time and lift fifteen to twenty pounds. The ALJ further noted that Plaintiff testified
that he is unable to control his blood pressure with medication and that his medication
makes him sleepy and subject to falling asleep at unpredictable times. The ALJ noted
that Plaintiff reported having a traumatic childhood in the foster care system where he
was abused frequently, kept from attending school, and medicated during the day. The
ALJ also noted that Plaintiff testified that his psychological symptoms are the result of
his childhood trauma. The ALJ further noted that Plaintiff testified that he stopped
using marijuana two or three weeks prior to the hearing; that Plaintiff experimented
with LSD to help his depression, the last time being one month prior to the hearing; and
Plaintiff testified to using heroin when he was younger and taking Oxycontin, but did
not like the effects of either drug. [Id.].
In evaluating Plaintiff’s impairments if Plaintiff stopped the substance use, the
ALJ found that Plaintiff would continue to have a severe impairment or combination
of impairments due to hypertension, status post right knee fracture, and depression.
19

AO 72A
(Rev.8/8
2)

[R25]. The ALJ also found that Plaintiff would continue to have mild difficulties in
activities of daily living and moderate difficulties in social functioning and maintaining
concentration, persistence and pace. [Id.].
In discussing the RFC finding if Plaintiff stopped the substance use, the ALJ
discussed Plaintiff’s medical record. [R27-30]. Regarding Plaintiff’s allegations of
difficulty with sitting, standing, and walking due to knee and back pain, the ALJ noted
that Plaintiff was seen at Grady Hospital in March 2010 during which visit x-rays of
Plaintiff’s knee revealed post open reduction internal fixation, with screws across the
medial and lateral tibia plateau and moderate joint effusion. [R27]. The ALJ noted that
the evidence shows that Plaintiff had a fracture in his right knee in November 2002
with reparative surgery performed at Grady and that Plaintiff alleges that he still has
pain and swelling as a result of the injury. Thus, the ALJ stated that the RFC limits
Plaintiff to light exertional activity with limited climbing and the ability to sit/stand at
will during the workday. [Id.].
Regarding Plaintiff’s allegations of uncontrolled hypertension including visual
limitations, the ALJ noted that Plaintiff received treatment for hypertension at North
DeKalb in July 2010 when Plaintiff reported that he had been off his blood pressure
medications for the past two months and denied any visual loss. [Id.]. The ALJ noted
20

AO 72A
(Rev.8/8
2)

that in September 2010, Plaintiff’s symptoms were resolved after receiving medication.
The ALJ further noted that in October 2011, Plaintiff presented to North DeKalb and
was noted to have accelerated hypertension, poor compliance, multi-substance abuse
and was also noted to be a poor historian and not cooperative. The ALJ observed that
the emergency room report consistently showed that Plaintiff was non-compliant with
blood pressure medications for the past four months and admitted to the use of
marijuana, opiates and LSD. [Id.]. The ALJ further observed that Plaintiff was treated
for hypertension at Piedmont Hospital’s emergency room in November 2011 and
February, May, August, and November 2012. [R27-28]. Finally, the ALJ noted that
Plaintiff received treatment at Saint Joseph’s Mercy Care Services from December
2012 through July 2013 for hypertension, that Plaintiff reported that he has adverse side
effects from numerous medications to control his hypertension, and that he was
repeatedly counseled on being compliant with his medication. [R28]. The ALJ stated
that he accounted for Plaintiff’s hypertension which Plaintiff alleges results in vision
impairment, dizziness, headache and fatigue by limiting Plaintiff to avoid climbing
ladders, ropes or scaffolds and avoid concentrated exposure to hazards. The ALJ
further gave significant weight to the longitudinal evidence of record regarding
Plaintiff’s hypertension. [Id.].
21

AO 72A
(Rev.8/8
2)

Regarding Plaintiff’s mental impairments, the ALJ noted that, although Plaintiff
testified that he has thoughts of suicide, intake notes at Piedmont Hospital in November
2011 indicated that Plaintiff had not tried self-harm and was not determined to be a
suicide risk patient. [Id.]. The ALJ further noted that treatment notes reflected that
Plaintiff’s depression is aggravated by conflict or stress, drug use, and traumatic
memories. The ALJ stated that Plaintiff’s symptoms and limitations due to depression
are accounted for in the RFC which limits Plaintiff to unskilled work and to no more
than occasional contact with others in the workplace. [Id.].
The ALJ noted that treatment notes in April 2012 indicated that Plaintiff
exhibited drug-seeking behavior in which he demanded pain medication and asked for
specific amounts of oxycodone; Plaintiff was escorted out of the hospital by security
when was refused higher dosages of oxycodone. [Id.].
The ALJ discussed the consultative examination report provided by Dr. Johnson
in February 2012, in which Dr. Johnson noted that Plaintiff completed range of motion
maneuvers, moved stiffly during assessment, had a stiff but normal gait, and difficulty
with tandem walking. [R29]. The ALJ also noted that Dr. Johnson reported that
Plaintiff’s hypertension was uncontrolled.
Dr. Johnson’s findings. [Id.].
22

AO 72A
(Rev.8/8
2)

The ALJ gave significant weight to

The ALJ next discussed the consultative psychological examination report
provided by Dr. Hamby in April 2012. [Id.]. The ALJ noted that Dr. Hamby reported
that Plaintiff used marijuana three times a week and diagnosed Plaintiff with depressive
disorder NOS and cannabis dependence. The ALJ noted that Dr. Hamby opined that
Plaintiff would be able to understand, remember, and carry out simple instructions,
sustain attention to complete tasks, and have moderate difficulty relating to supervisors
and co-workers. The ALJ further noted that Dr. Hamby indicated that Plaintiff’s mental
condition would be expected to improve if he received mental health treatment and that
Plaintiff would experience additional improvement if he permanently and completely
stopped all use of marijuana. The ALJ gave significant weight to the opinion of
Dr. Hamby. [Id.].
The ALJ also acknowledged the third party function report provided in August
2012 by Plaintiff’s close friend Sparrow Honeycutt, however the undersigned gave
little weight to the opinion as it was inconsistent with the RFC. [Id.]. The ALJ further
gave significant weight to the state agency medical and psychological consultants.
[R29-30].

23

AO 72A
(Rev.8/8
2)

IV.

STANDARD FOR DETERMINING DISABILITY
An individual is considered disabled for purposes of disability benefits if he is

unable to “engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than
12 months.”

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).

The impairment or

impairments must result from anatomical, psychological, or physiological abnormalities
which are demonstrable by medically accepted clinical or laboratory diagnostic
techniques and must be of such severity that the claimant is not only unable to do
previous work but cannot, considering age, education, and work experience, engage in
any other kind of substantial gainful work that exists in the national economy.
42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D).
The burden of proof in a Social Security disability case is divided between the
claimant and the Commissioner. The claimant bears the primary burden of establishing
the existence of a “disability” and therefore entitlement to disability benefits.
See 20 C.F.R. §§ 404.1512(a), 416.912(a). The Commissioner uses a five-step
sequential process to determine whether the claimant has met the burden of proving
disability. See 20 C.F.R. §§ 404.1520(a), 416.920(a); Doughty v. Apfel, 245 F.3d 1274,
24

AO 72A
(Rev.8/8
2)

1278 (11th Cir. 2001); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
The claimant must prove at step one that he is not undertaking substantial gainful
activity. See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At step two, the
claimant must prove that he is suffering from a severe impairment or combination of
impairments that significantly limits his ability to perform basic work-related activities.
See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). At step three, if the impairment
meets one of the listed impairments in Appendix 1 to Subpart P of Part 404 (Listing of
Impairments), the claimant will be considered disabled without consideration of age,
education, and work experience.

See 20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). At step four, if the claimant is unable to prove the existence of a
listed impairment, he must prove that his impairment prevents performance of past
relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At step five,
the regulations direct the Commissioner to consider the claimant’s residual functional
capacity, age, education, and past work experience to determine whether the claimant
can perform other work besides past relevant work.

See 20 C.F.R.

§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). The Commissioner must produce evidence that
there is other work available in the national economy that the claimant has the capacity

25

AO 72A
(Rev.8/8
2)

to perform. Doughty, 245 F.3d at 1278 n.2. To be considered disabled, the claimant
must prove an inability to perform the jobs that the Commissioner lists. Id.
If at any step in the sequence a claimant can be found disabled or not disabled,
the

sequential

evaluation

ceases

and

further

inquiry

ends.

See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Despite the shifting of burdens at
step five, the overall burden rests on the claimant to prove that he is unable to engage
in any substantial gainful activity that exists in the national economy. Doughty,
245 F.3d at 1278 n.2; Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983),
superceded by statute on other grounds by 42 U.S.C. § 423(d)(5), as recognized in
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214 (11th Cir. 1991).
If the ALJ determines that the claimant is disabled and there is medical evidence
of a drug addition or alcoholism, the ALJ must determine whether the drug addition or
alcoholism (“DAA”) is a contributing factor material to the determination of disability.
20 C.F.R. § 404.1535(a). Under the Social Security Act, “an individual shall not be
considered to be disabled . . . if alcoholism or drug addiction would . . . be a
contributing factor material to the Commissioner’s determination that the individual is
disabled.” 42 U.S.C. § 423(d)(2)(C). To determine whether DAA is a material factor,
the ALJ must determine whether the claimant would still be disabled if he stopped
26

AO 72A
(Rev.8/8
2)

using alcohol or drugs. 20 C.F.R. § 404.1535(b)(1). To make this determination, the
ALJ must evaluate which of the current physical and mental limitations would remain
if the claimant stopped using alcohol or drugs and then determine whether any or all
of the remaining limitations would be disabling. 20 C.F.R. § 404.1535(b)(2). If the
ALJ determines that the claimant’s remaining limitations are disabling, then he is
disabled independent of DAA and the ALJ must find that the DAA is not a contributing
factor material to the determination of disability. 20 C.F.R. § 404.1535(b)(2)(ii). If the
ALJ determines that the remaining limitations are not disabling, then the ALJ must find
that DAA is a contributing factor material to the determination of disability, and,
therefore, the claimant is not disabled. 20 C.F.R. § 404.1535(b)(2)(i).
V.

SCOPE OF JUDICIAL REVIEW
A limited scope of judicial review applies to a denial of Social Security benefits

by the Commissioner. Judicial review of the administrative decision addresses three
questions: (1) whether the proper legal standards were applied; (2) whether there was
substantial evidence to support the findings of fact; and (3) whether the findings of fact
resolved the crucial issues. Washington v. Astrue, 558 F. Supp. 2d 1287, 1296
(N.D. Ga. 2008); Fields v. Harris, 498 F. Supp. 478, 488 (N.D. Ga. 1980). This Court
may not decide the facts anew, reweigh the evidence, or substitute its judgment for that
27

AO 72A
(Rev.8/8
2)

of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). If
substantial evidence supports the Commissioner’s factual findings and the
Commissioner applies the proper legal standards, the Commissioner’s findings are
conclusive. Lewis v. Callahan, 125 F.3d1436, 1439-40 (11th Cir. 1997); Barnes v.
Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987) (per curiam);
Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986) (per curiam); Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
“Substantial evidence” means “more than a scintilla, but less than a
preponderance.” Bloodsworth, 703 F.2d at 1239. It means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion and it must be
enough to justify a refusal to direct a verdict were the case before a jury. Richardson
v. Perales, 402 U.S. 389, 401 (1971); Hillsman, 804 F.2d at 1180; Bloodsworth,
703 F.2d at 1239. “In determining whether substantial evidence exists, [the Court]
must view the record as a whole, taking into account evidence favorable as well as
unfavorable to the [Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986) (per curiam). Even where there is substantial evidence to the contrary
of the ALJ’s findings, the ALJ decision will not be overturned where “there is
28

AO 72A
(Rev.8/8
2)

substantially supportive evidence” of the ALJ’s decision.

Barron v. Sullivan,

924 F.2d 227, 230 (11th Cir. 1991). In contrast, review of the ALJ’s application of legal
principles is plenary. Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995); Walker,
826 F.2d at 999.
VI.

CLAIMS OF ERROR
Plaintiff raises two issues in this appeal: (1) the ALJ’s determination that

Plaintiff’s substance use disorder materially contributed to his disability was not made
in accordance with the regulations and is not supported by substantial evidence; and
(2) the ALJ erred by incorporating a sit/stand option and a limitation that Plaintiff could
adapt to change provided that change is introduced gradually in the RFC, as these are
accommodations and the ALJ cannot rely on the VE because it is inconsistent with
relevant legal standards and no explanation was prescribed for the discrepancy.
[Doc. 11 at 6-8].
A.

DAA
1.

Arguments of the Parties

Plaintiff argues that the ALJ’s determination that Plaintiff would not have a
severe mental impairment if he stopped using drugs and alcohol is not supported by
substantial evidence. [Doc. 11 at 8]. Plaintiff contends that the ALJ made findings
29

AO 72A
(Rev.8/8
2)

based on speculation about the effects of Plaintiff’s drug use. [Id.]. For example,
Plaintiff argues, the ALJ cited to current marijuana use, Plaintiff’s past drug use, and
Plaintiff’s drug seeking behavior where Plaintiff sought higher doses of pain
medication. [Id.]. However, Plaintiff claims, there is no indication that Plaintiff
received the additional pain medications or that it resulted in the behavior and
limitations exhibited throughout the record. [Id.]. Plaintiff also notes that the ALJ
relied on the consultative examiner’s statement that cessation of marijuana would
improve his functioning, however the consultative examiner also acknowledged that
Plaintiff requires mental health treatment and diagnosed Plaintiff with depression as
well as bizarre behavior. [Id.]. Moreover, Plaintiff argues, the consultative examiner
did not conclude that Plaintiff’s functioning would improve to the point of ability to
work and that, to the contrary, the medical evidence and statement from Plaintiff’s
friend show impairments and symptoms separate and apart from substance abuse. [Id.].
In response, Defendant argues that the ALJ properly determined that Plaintiff’s
DAA was material to the determination of disability, and that substantial evidence
supports his findings. [Doc. 12 at 10]. Defendant cites to Dr. Hamby, who noted that
Plaintiff’s condition would improve if he permanently and completely stopped using
marijuana. [Id. at 10-11 (citing [R414])]. Defendant also cited to other medical
30

AO 72A
(Rev.8/8
2)

evidence that Defendant argues supports the ALJ’s decision, including records that
show

a

long

history

of

substance

addiction

issues

and

drug-seeking

behavior. [Id. at 11-12 (citing [R403, 426, 431, 438, 444, 445, 448, 1202, 1252, 126566, 1287, 1294, 1338])]. Moreover, Defendant argues that Plaintiff failed to meet his
burden of proving that he would have been disabled if he stopped his substance abuse.
[Id. at 12].
Plaintiff did not file a reply brief. [See Dkt.].
2.

Discussion

The Court finds substantial evidence supports the ALJ’s determination that DAA
was a contributing factor to Plaintiff’s disability. The ALJ relied, in part, on the
opinion of Dr. Hamby, who opined that Plaintiff was able to understand, remember and
carry out simple instructions and to sustain his attention in order to complete simple
tasks, had moderate difficult relating to supervisors and coworkers, and was at mild to
moderate risk for psychiatric decompensation under stressful work conditions. [R414].
Dr. Hamby further opined that his condition would be expected to improve with mental
health treatment and if Plaintiff permanently and completely stopped all use of
marijuana. [Id.]. While Plaintiff argues that Dr. Hamby did not indicate that Plaintiff’s
functioning would improve to the point of an ability to work, Dr. Hamby’s opinion was
31

AO 72A
(Rev.8/8
2)

based upon Plaintiff’s then-level of functioning, even without improvement, which
suggested that Plaintiff has the mental capability to function in the workplace with
those limitations. This level of functioning appears to be a baseline which would only
improve with mental health treatment and cessation of marijuana usage.
Dr. Hamby did not opine that Plaintiff’s level of functioning was so deteriorated
to the point where Plaintiff is unable to work. Moreover, Plaintiff does not argue that
the limitations set out by Dr. Hamby were not incorporated in the RFC and the Court
finds that the RFC accurately reflects the opinion and limitations set out by Dr. Hamby.
Plaintiff also argues that the medical evidence and statement from his friend
shows impairments and symptoms separate and apart from substance abuse, however,
Plaintiff fails to cite to any medical evidence which demonstrates that his impairments
and symptoms are separate and apart from substance use, and Plaintiff does not
challenge the ALJ’s decision to assign little weight to the friend’s statement.
Accordingly, the Court finds that substantial evidence supports the ALJ’s
determination that DAA was a contributing factor to Plaintiff’s disability. Thus, the
Court finds that this argument is not a basis to reverse and remand.

32

AO 72A
(Rev.8/8
2)

B.

Accommodations
1.

Arguments of the Parties

Next, Plaintiff argues that the sit/stand option and the gradual introduction of
change are accommodations—as that word is defined in Social Security Ruling
(“SSR”) 11-2p11—that would need to be made by an employer. [Doc. 11 at 7]. Thus,
Plaintiff argues, that this finding would preclude work and the VE cannot provide
substantial evidence because it is inconsistent with relevant legal standards and no
explanation was prescribed for the discrepancy. [Id.]. Moreover, Plaintiff argues that
the evidence raises significant questions as to Plaintiff’s ability to sustain work
activities on a regular continuing basis. [Id.].

11

According to the SSR,

Accommodations are practices and procedures that allow a person to
complete the same activity or task as other people. Accommodations can
include a change in setting, timing, or scheduling, or an assistive or
adaptive device. . . . When we determine whether a person can do other
work that exists in significant numbers in the national economy, we do not
consider whether he or she could do so with accommodations, even if an
employer would be required to provide reasonable accommodations under
the Americans with Disabilities Act of 1990.
SSR 11-2pII.D.1.a., e., 2011 WL 4055665, at *8, 9 (Sept. 12, 2011).
33

AO 72A
(Rev.8/8
2)

In response, Defendant argues that the ALJ properly relied on the VE’s
testimony. [Doc. 12 at 13-14]. Defendant argues that Plaintiff’s reliance on SSR 11-2p
is misplaced because that ruling specifically deals with assessing claims by young
adults who are between the ages of 18-25. [Id. at 14]. Notwithstanding, Defendant
argues, Plaintiff’s argument fails because the RFC limitations of a sit/stand option and
a need for gradual work changes are not accommodations. [Id.]. Defendant argues that
the regulations allow for the ALJ to include these limitations in the RFC because the
regulations require an ALJ to assess and incorporate into the RFC a claimant’s ability
to sit, stand, or walk, and to assess work pressures in a work setting. [Id. at 15 (citing
20 C.F.R. § 404.1545(b), (c))]. Moreover, Defendant argues that under SSR 11-2p, a
claimant’s ability to deal with changes in a routine work setting is a factor to be
considered in the RFC. [Id. at 15-16 (citing SSR 11-2P, 2011 WL 4055665 at *14)].
2.

Discussion

Defendant has the better argument. As noted by Defendant, SSR 11-2p
specifically pertains to evaluating disability in young adults, ages 18 to 25. SSR 11-2p,
2011 WL 4055665 at *1-2. As Plaintiff was 44 years old on the alleged onset date of
disability, [R24], this SSR does not apply. Even if it did, the Court also agrees with
Defendant that the incorporation into the RFC and the hypothetical to the VE of a
34

AO 72A
(Rev.8/8
2)

sit/stand option and the gradual introduction of change are not accommodations under
the ruling, but specific findings an ALJ must make when assessing and determining a
plaintiff’s RFC. See SSR 11-2p, 2011 WL 4055665, at *14; 20 C.F.R. § 404.1545(b),
(c).
Accordingly, the Court finds that substantial evidence supports the ALJ’s RFC
and step five determination. Thus, Plaintiff’s arguments on this point are not a basis
for reversal or remand.
VII. CONCLUSION
For the reasons above, the Court AFFIRMS the final decision of the
Commissioner.
The Clerk is DIRECTED to enter final judgment in Defendants’s favor.
IT IS SO ORDERED and DIRECTED, this the 15th day of September, 2015.

35

AO 72A
(Rev.8/8
2)