Lahti v. Saul
MEMORANDUM DECISION AND ORDER - Based upon the foregoing, the Court being otherwise fully advised in the premises, it is hereby ORDERED that the Commissioners decision finding that the Petitioner is not disabled within the meaning of the Social Security Act is AFFIRMED and the petition for review is DISMISSED. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
NATALIE L., on behalf of CHAD L,
Case No. 1:19-CV-00489-CWD
MEMORANDUM DECISION AND
ANDREW SAUL, Commissioner of
Social Security Administration,
Before the Court is Natalie L.’s Petition for Review of the final decision of the
Commissioner of Social Security denying her deceased husband Chad L.’s application for
a period of disability and disability insurance benefits, filed on December 12, 2019. (Dkt.
1.) The Court has reviewed the Petition, the Answer, the parties’ memoranda, and the
administrative record (AR), and for the reasons that follow, will affirm the decision of the
Commissioner for further proceedings.
MEMORANDUM DECISION AND ORDER - 1
PROCEDURAL AND FACTUAL HISTORY
On May 2, 2013, Petitioner Natalie L.’s husband, Claimant Chad L., protectively
filed for a period of disability and disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401-433. 1 The application was denied initially and on
A hearing was conducted on July 22, 2015, before Administrative Law Judge
(ALJ) Christopher R. Inama. After hearing testimony from Claimant and a vocational
expert, the ALJ issued a decision finding Claimant not disabled on October 6, 2015. (AR
21-35.) Claimant submitted a timely request for review from the Appeals Council. While
review was pending, Claimant regrettably died of a pulmonary embolism on September
23, 2016. (AR 2039.) Petitioner was substituted as a party for Claimant. (AR 167.) On
January 12, 2017, the Appeals Council denied the request for review. Petitioner timely
appealed to the Court. Natalie L. v. Berryhill, Civil No. 1:17-cv-00080-REB, 2018 WL
4643055 (D. Idaho Feb. 21, 2017).
On September 27, 2018, the Court issued a memorandum decision and order
finding the ALJ erred in rejecting the lay opinion of Petitioner and, consequently, the
Residual Functional Capacity (RFC) was not supported by substantial evidence.
(AR1883-1900.) However, the Court found the ALJ did not err in determining that
This action is brought by Petitioner Natalie L. on behalf of her deceased husband Chad L.,
whose alleged disability is at issue. In this Order, the Court will distinguish between the two by
referring to Natalie L. as “Petitioner” and to Chad L. as “Claimant.”
MEMORANDUM DECISION AND ORDER - 2
Claimant’s symptom statements were not credible and in giving limited weight to the
opinion of treating provider Dr. Scott Hoopes. (AR 1893-1900.) The case was remanded
pursuant to sentence four of 42 U.S.C. § 405(g). (AR 1901.) The Appeals Council
vacated the Commissioner’s decision and remanded the case to ALJ Inama for further
proceedings consistent with the Order of the Court. (AR 1927.)
On remand, ALJ Inama conducted a hearing on July 24, 2019. (AR 1820-1842.)
After considering testimony from Petitioner and a second vocational expert, the ALJ
issued a decision on August 19, 2019, finding Claimant not disabled. (AR 2043-2060.)
The Appeals Council denied Petitioner’s request for review, making the ALJ’s decision
final. See 42 U.S.C. § 405(h). Petitioner timely filed this action seeking judicial review of
the ALJ’s decision. (Dkt. 1.) The Court has jurisdiction pursuant to 42 U.S.C. § 405(g).
Petitioner contends Claimant was disabled beginning September 16, 2011. 2 At the
time of the date last insured, December 31, 2013, Claimant was 49 years of age. Claimant
had an associate’s degree in applied science, computers and networks, and other
educational certificates. (AR 323.) Claimant had prior work experience as a call center
representative. (AR 205.) Petitioner asserts Claimant was unable to work due to his
physical and mental impairments of: bipolar disorder with mania; type II diabetes; seizure
disorder; chronic pancreatitis; depression; arthritis; ADHD; insomnia; anemia, vitamin D
deficiency; and hypertension. (AR 181.)
The original onset date of July 7, 2009, was later amended to September 16, 2011. (AR 50.)
MEMORANDUM DECISION AND ORDER - 3
STANDARD OF REVIEW
The Court must uphold an ALJ’s decision, unless: 1) the decision is based on legal
error, or 2) the decision is not supported by substantial evidence. Revels v. Berryhill, 874
F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Biestek v. Berryhill,
139 S.Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). It is more than a scintilla, but less than a preponderance of evidence. Orn v.
Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
In making its determination, the Court considers the administrative record as a
whole, weighing both the evidence that supports, and the evidence that does not support,
the ALJ’s conclusion. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The Court
reviews only those issues raised by the party challenging the decision. See Lewis v. Apfel,
236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court considers only the reasoning and
actual findings identified by the ALJ and may not affirm for a different reason or based
on post hoc rationalizations attempting to infer what the ALJ may have concluded.
Garrison, 759 F.3d at 1010; Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1225-26
(9th Cir. 2009).
If the ALJ’s decision is based on a rational interpretation of conflicting evidence,
the Court will uphold the ALJ’s finding. Carmickle v. Comm’r Soc. Sec. Admin., 533
F.3d 1155, 1165 (9th Cir. 2008). The Court “may not substitute [its] judgment for that of
the Commissioner.” Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). The Court
will not reverse the ALJ’s decision if it is based on harmless error, which exists where the
MEMORANDUM DECISION AND ORDER - 4
error is “inconsequential to the ultimate nondisability determination, or if despite the
legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v. Colvin,
806 F.3d 487, 492 (9th Cir. 2015) (internal marks and citations omitted); see also Molina
v. Astrue, 674 F.3d 1104, 1117–1122 (9th Cir. 2012).
THE ALJ’S DECISION
The ALJ applied the five-step sequential evaluation for determining whether a
claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found
Claimant had not engaged in substantial gainful activity since the alleged onset date. The
ALJ found at step two that Claimant had the following medically determinable, severe
impairments: diabetes mellitus type two; major motor seizures; schizoaffective disorder;
bipolar disorder with psychosis; depression; anxiety disorder; and alcohol-substance
addiction disorder. (AR 2045.) The ALJ concluded Claimant’s borderline obesity;
peripheral neuropathy; sleep apnea; degenerative disc disease of the lumbar and cervical
spine; degenerative joint disease of the left shoulder/osteoarthritis; wrist pain; chronic
pancreatitis; attention deficit hyperactivity disorder (ADHD); insomnia; hypertension;
and vitamin D deficiency, were all non-severe physical impairments. At step three, the
ALJ concluded Claimant did not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments.
The ALJ next assessed the limitations caused by Claimant’s impairments and
determined he retained the Residual Functional Capacity (RFC) to perform light work
with some physical, environmental, and mental limitations. (AR 2051.) At step four, the
ALJ determined Claimant was unable to perform any past relevant work. (AR 2058.)
MEMORANDUM DECISION AND ORDER - 5
Therefore, the ALJ moved to step five where he found that, based on Claimant’s age,
education, work experience, RFC, and the testimony of the vocational expert, Claimant
could perform the requirements of other work existing in significant numbers in the
national economy such as bench assembler, small products assembler, machine operator,
final assembler, bench hand, and preparer. (AR 2059.) Accordingly, the ALJ determined
Claimant was not disabled.
ISSUES PRESENTED 3
Petitioner raises the following issues as grounds for remand:
Whether the ALJ erred in evaluating Petitioner’s lay statement and testimony.
Whether the ALJ erred at step two by failing to consider Claimant’s peripheral
neuropathy a severe impairment, and not recognizing Claimant’s deep vein
Whether the ALJ improperly considered Claimant’s alcohol use.
Whether the ALJ erred in assessing Claimant’s RFC.
Petitioner’s Lay Statement and Testimony
Individuals, such as spouses, who give testimony about a claimant’s impairments
can qualify as a lay witness. SSR 06-03p, 2006 WL 2329939, at *2. Lay witness
testimony regarding the severity of a claimant’s symptoms or how an impairment affects
The Court has combined its discussion of certain issues for logistical reasons.
MEMORANDUM DECISION AND ORDER - 6
a claimant’s ability to work is competent evidence that an ALJ must take into account.
Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). To reject such testimony, an ALJ
must provide specific “reasons that are germane to each witness.” Rounds v. Comm’r Soc.
Sec. Admin., 807 F.3d 996, 1007 (9th Cir. 2015) (quoting Molina, 674 F.3d at 1114
(remaining citation omitted)); Taylor v. Comm’r Soc. Sec. Admin., 659 F.3d 1228, 1234
(9th Cir. 2011) (citing Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009)).
Here, the ALJ gave limited weight to Petitioner’s written statement and testimony,
[Petitioner] is not medically trained, is not a disinterested third party (in
that she has a direct pecuniary interest in the outcome of this case), and in
her written statement ([Ex.] 43F) does not even mention the claimant’s
well-documented alcohol abuse. Indeed, in both her written statement and
hearing testimony, she ignores the well documented causal and
exacerbating connections between the claimant’s physical/psychological
problems and his alcohol abuse. This indicates, for example (not by way of
limitation), alcohol pancreatitis (Ex. 1F/4), acute alcohol withdraw (Ex.
4F), alcohol dependence (Ex. 5F), alcohol withdraw (Ex. 6F), acute
encephalopathy due to alcohol intoxication and alcohol hepatitis (Ex. 8F),
alcohol withdraw/delirium tremens (Ex. 9F), and alcohol intoxication and
dependence (Ex. 18F). Instead, [Petitioner] tries to excuse the alcohol abuse
by asserting that the claimant was “self-medicating,” without
acknowledging that his purported “self-medication” with alcohol was
causing or exacerbating his problems. Her opinions are not supported by or
consistent with the medical evidence of record. Therefore, I give her
opinions limited weight.
Petitioner argues the ALJ erred by 1) failing to provide a germane reason for
discrediting Petitioner’s lay statement and testimony, and 2) violating the rule of law and
rule of mandate. (Dkt. 20, 22.)
MEMORANDUM DECISION AND ORDER - 7
The ALJ stated three bases for assigning limited weight to Petitioner’s statement
and testimony: 1) Petitioner was not medically trained; 2) Petitioner was not a
disinterested third party; and 3) Petitioner did not mention Claimant’s alcohol abuse and
was inconsistent with the medical evidence in the record. (AR 2057.) The Court finds the
first two bases were insufficient. 4 However, the ALJ’s third basis was a specific and
germane reason for discrediting Petitioner’s statements.
As to the first reason, the ALJ concluded without explanation that Petitioner was
not medically trained. That was not a specific or germane reason for rejecting Petitioner’s
statements. “[F]riends and family members in a position to observe a claimant’s
symptoms and daily activities are competent to testify” as to a claimant’s condition.
Dodrill v. Shalala, 12 F.3d 915, 918-919 (9th Cir. 1993). Further, the regulations allow
for evidence from “non-medical sources.” 20 C.F.R. § 404.1513(e)(4)(2013). The ALJ
therefore erred in discrediting Petitioner’s testimony on this basis without explaining why
Petitioner’s lack of medical training rendered her testimony unreliable.
The Court notes that the first two bases are strikingly similar, although slightly different, to
those found erroneous by the prior reviewing court. The ALJ’s previous decision assigned
Petitioner’s opinion little weight because: 1) she was not medically trained to make exacting
observations as to dates, frequencies, types, and degrees of medical signs and symptoms, or of
the frequency or intensity of unusual moods or mannerisms, the accuracy of her observations is
questionable; and 2) by virtue of her spousal relationship with Claimant, her statements cannot
be considered the observations of a disinterested third-party whose opinion would not tend to be
colored by affection for claimant and a natural tendency to agree with the symptoms alleged by
claimant. (AR 34.) The nuanced differences in the first and second bases do not change the
outcome here, however.
MEMORANDUM DECISION AND ORDER - 8
As to the second reason, the ALJ stated that Petitioner was not a disinterested third
party because of her direct pecuniary interest in the outcome of the case. This was also
not a specific or germane reason to reject Petitioner’s statements. Most, if not all, spouses
regardless of whether the claimant is deceased, have a pecuniary interest in the outcome
of a disability case. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir.
2009). (“[I]nsofar as the ALJ relied on characteristics common to all spouses, [the ALJ]
ran afoul of our precedents.”). Regardless of their vested interest in a claimant’s case,
whether financial or emotional, the ALJ must consider statements by family members.
See Nguyen, 100 F.3d at 1467 (Lay witness testimony regarding the severity of a
claimant’s symptoms or how an impairment affects a claimant’s ability to work is
competent evidence that an ALJ must take into account.).
To reject a lay witness statement, the ALJ must “tie the reasoning of their
credibility determinations to the particular witnesses whose testimony they reject.”
Valentine, 574 F.3d at 694. Here, the ALJ erred in relying on a characteristic common to
all spouses as a basis for giving limited consideration to Petitioner’s statements, without
explaining how the particular circumstances in this case may have warranted doing so. Id.
Petitioner’s pecuniary interest in the case, alone, was not a sufficient basis for
discrediting her statements.
However, the ALJ’s third basis – that Petitioner failed to account for Claimant’s
alcohol abuse and that her statement and testimony were inconsistent with the medical
record – was a specific, germane reason for rejecting Petitioner’s statements.
MEMORANDUM DECISION AND ORDER - 9
Inconsistency with medical evidence is a germane reason to discredit lay witness
statements. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). The Ninth Circuit
has recognized a difference between (1) a lay witness statement that lacks affirmative
support in the record, which is not necessarily a proper reason for rejecting testimony,
and (2) a lay witness statement that is actually inconsistent with medical evidence in the
record, which is a proper reason for rejecting testimony. Compare Bruce, 557 F.3d at
1116 with Bayliss, 427 F.3d at 1218.
Here, the ALJ discredited Petitioner’s statement and testimony because she failed
to mention Claimant’s “well-documented alcohol abuse”; “ignored the well documented
causal and exacerbating connections” between Claimant’s problems and his alcohol
abuse; and instead “excuse[d] the alcohol abuse” as self-medication. (AR 2057.) The ALJ
identified several medical records documenting Claimant’s alcohol abuse and the
exacerbating impact it had on his physical and mental impairments. The ALJ explained
that Petitioner’s failure to address Claimant’s alcohol abuse in her written statement and
her testimony minimizing the impact of the alcohol abuse on Claimant’s impairments and
functional limitations were inconsistent with the several medical records identified by the
ALJ. Contrary to Petitioner’s argument, the ALJ properly accounted for Petitioner’s
hearing testimony regarding Claimant’s alcohol abuse. (AR 2057.) Thus, the ALJ
appropriately set forth his reasons for concluding that Petitioner’s statements were
inconsistent with the medical evidence.
While Petitioner disagrees with the ALJ’s view of the record and conclusion, the
ALJ’s reasoning and decision were sufficiently explained and supported by substantial
MEMORANDUM DECISION AND ORDER - 10
evidence. For these reasons, the Court finds the third basis set forth by the ALJ was a
sufficiently specific and germane reason for assigning limited weight to Petitioner’s
statements and testimony.
The Court further finds the ALJ did not violate the rule of law or rule of mandate
as alleged by Petitioner. (Dkt. 20 at 9-10.) “The law of the case doctrine generally
prohibits a court from considering an issue that has already been decided by that same
court or a higher court in the same case.” Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir.
2016) (citing Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012)). The rule
of mandate is similar to, but broader than, the law of the case doctrine and provides that
any District Court that has “received the mandate of an appellate court cannot vary or
examine that mandate for any purpose other than executing it.” Hall, 697 F.3d at 1067.
Here, the remand order did not require the ALJ to address Petitioner’s lay
testimony in any particular fashion or preclude the ALJ from reevaluating and more fully
explaining the basis for his conclusions regarding Petitioner’s statements. (AR 1899)
(The case was remanded for further proceedings “to decide whether Claimant was
disabled during the period from his amended alleged onset date through his date last
insured.”) Indeed, the relevant assignment of error found by the prior reviewing court and
basis for remand was the ALJ’s failure to provide a sufficient explanation for concluding
that Petitioner’s lay statement and testimony were inconsistent with the medical evidence.
(AR 1891.) As determined above, the ALJ adequately addressed this error on remand.
MEMORANDUM DECISION AND ORDER - 11
Step Two and Consideration of Limitations in the RFC Determination
Petitioner contends the ALJ erred at step two by failing to consider Claimant’s
peripheral neuropathy a severe impairment and not recognizing Claimant’s deep vein
thrombosis (DVT). (Dkt. 20, 22.) Consequently, Petitioner argues, the ALJ failed to
address the limitations resulting from Claimant’s neuropathy and DVT in making the
RFC determination. Respondent maintains the ALJ’s assessment of Claimant’s
impairments at step two and the RFC determination were supported by substantial
evidence and, regardless, that any error was harmless. (Dkt. 21.)
At step two, the ALJ determines if the claimant has a medically “severe”
impairment or combination of impairments. 20 C.F.R. § 404.1520. To satisfy the severity
requirement, the claimant must prove the impairment by providing objective medical
evidence; the claimant’s own statement of symptoms alone will not suffice. See 20 C.F.R.
§ 416.921. An impairment is considered “severe” if a claimant’s physical or mental
ability to complete basic work activities are significantly limited. Id., § 404.1520. Basic
work activities include the “abilities and aptitudes necessary to do most jobs,” such as
walking, sitting, lifting, speaking, remembering simple instructions, using judgment, and
adapting to changes in a routine work setting. See 20 C.F.R. § 404.1522. With the
exception of expected death, the impairment must also have lasted or be expected to last
at least twelve months. Id. § 404.1509. When evaluating whether the impairment or
impairments are severe, the combined effect of all impairments should be considered,
MEMORANDUM DECISION AND ORDER - 12
without regard to whether any impairment on its own would be sufficiently severe. 20
C.F.R. § 416.923.
Reviewing an ALJ’s findings at step two, the Court “must determine whether the
ALJ had substantial evidence to find that the medical evidence clearly established that
[the claimant] did not have a medically severe impairment or combination of
impairments.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). Failure to address an
impairment or a finding of not severe at step two is harmless if the ALJ considered the
impairment when formulating the claimant’s RFC. Lewis v. Astrue, 498 F.3d 909, 911
(9th Cir. 2007).
Here, the ALJ concluded that Claimant’s neuropathy was non-severe and did not
discuss Claimant’s DVT. For the reasons that follow, the Court finds the ALJ did not
error at step two and that any error was harmless.
As to Claimant’s peripheral neuropathy, the ALJ stated:
The claimant was diagnosed with neuropathy. He originally alleged rightside neuropathy, particularly on the lateral aspect of his right foot. He has
been specifically diagnosed with neuropathy on the plantar surface of his
feet, with peripheral autonomic neuropathy and with polyneuropathy. He
complained of chronic burning and tingling in his feet. He did not complain
of trouble healing or have amputations on his feet. He took medication for
neuropathy. He had been noted as having normal strength, motor control
and coordination. For all these reasons, I find the claimant’s neuropathy
was non-severe prior to the date last insured.
(AR 2046-2047) (citations omitted.)
MEMORANDUM DECISION AND ORDER - 13
Petitioner contends there was adequate medical and non-medical evidence
showing Claimant’s neuropathy significantly impaired his ability to sit, stand, or walk for
prolonged periods of time. (Dkt. 22 at 2.) Namely, Petitioner’s and Claimant’s symptom
statements, as well as medical records reporting: strength discrepancy in Claimant’s
lower extremities; abnormal sensation in his feet; decreased lower extremity reflexes; and
polyneuropathy. (Dkt. 20, 22) (citing AR 211, 215, 497, 1259, 1329, and 1395.)
Respondent maintains the ALJ properly addressed Claimant’s neuropathy, citing medical
records reporting normal exam findings. (Dkt. 21 at 4-5.)
The Court finds the ALJ’s determination that Claimant’s neuropathy was a nonsevere impairment is supported by substantial evidence. See Webb, 433 F.3d at 687. The
ALJ recognized the medical records diagnosing right-side neuropathy; Claimant’s
complaints of chronic burning and tingling in his feet; and that Claimant treated his
neuropathy with medication. (AR 2046-2047.) However, the ALJ concluded that the
medical evidence did not support finding Claimant’s neuropathy severe, pointing to
medical records of physical exams reporting Claimant had normal strength, motor
control, and coordination. (AR 2046-2047.)
Petitioner does not dispute the records relied on by the ALJ. Instead, Petitioner
cites other records containing indications that Claimant experienced symptoms or may
have had limitations resulting from his neuropathy. (Dkt. 20 at 12) (citing records
showing a strength discrepancy in Claimant’s lower extremities, limited range of motion,
absent and diminished sensation in the feet, decreased reflexes). Petitioner’s
MEMORANDUM DECISION AND ORDER - 14
disagreement with the ALJ’s assessment of the medical records does not establish error,
The ALJ is the “final arbiter with respect to resolving ambiguities in the medical
evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). “If the evidence
‘is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that
must be upheld.’” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); Treichler v. Comm’r Soc. Sec. Admin., 775
F.3d 1090, 1098 (9th Cir. 2014) (If there is substantial evidence to support the ALJ’s
factual decision, they must be upheld even when there is conflicting evidence.). Here, the
medical records of physical examination findings from the relevant time period relied
upon by the ALJ constitute substantial evidence supporting the determination that
Claimant’s neuropathy was non-severe. (AR 2046-2047) (citing records showing
Claimant reported mild symptoms of neuropathy which he treated with medication, but
that Claimant displayed normal strength, motor control, and coordination).
Petitioner also argues the ALJ committed legal error by requiring that an
individual suffer amputations or non-healing wounds before neuropathy will be
considered a severe impairment. (Dkt. 22 at 2.) This argument mischaracterizes the ALJ’s
decision. The ALJ did not state or suggest that trouble healing or amputations were
necessary to establish that Claimant’s neuropathy was severe. Rather, the ALJ simply
observed the absence of any complaints by Claimant of trouble healing or any
amputations. (AR 2046.) As discussed above, the ALJ’s determination that Claimant’s
neuropathy was non-severe was based on substantial evidence in the medical records
MEMORANDUM DECISION AND ORDER - 15
indicating Claimant treated his neuropathy with medication and that Claimant had normal
strength, motor control, and coordination. (AR 2046-2047.) For these reasons, the Court
finds the ALJ did not err at step two in concluding Claimant’s neuropathy was not severe.
The ALJ did not mention DVT in his step two discussion. Instead, the ALJ stated:
“Any diagnosis, ailment, or condition not specifically set out herein was either not severe
or not medically determinable during the period at issue.” (AR 2049.)
Petitioner asserts that the ALJ erred in failing to address Claimant’s DVT,
maintaining the record contains ample evidence of Claimant’s DVT. (Dkt. 20, 22.)
Specifically, Petitioner relies on medical records indicating chronic leg swelling; lower
extremity edema post-DVT; a venous duplex ultrasound showing a chronic partial
obstruction throughout the right leg; and that Claimant passed away from a pulmonary
emboli. (Dkt. 20 at 12-13.) Petitioner also points to symptom testimony that Claimant’s
leg would swell with sitting for prolonged periods of time or short walks, resulting in
Claimant needing to elevate his leg and apply ice. (Dkt. 22 at 3.) Respondent argues that
Petitioner’s claim is “clearly at odds with the bulk of the medical evidence, finding no
edema (swelling) in the months leading up to the date last insured.” (Dkt. 21 at 5, n. 2)
(citing several medical records of physical examination where no edema was found.)
Petitioner bears the burden of proving that Claimant had an impairment that met or
equaled the criteria of a listed impairment at step two. Burch v. Barnhart, 400 F.3d 676,
679 (9th Cir. 2005). The “ALJ is not required to discuss the combined effects of a
claimant’s impairments or compare them to any listing in an equivalency determination,
MEMORANDUM DECISION AND ORDER - 16
unless the claimant presents evidence in an effort to establish equivalence.” Burch, 400
F.3d at 683 (citing Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001) (ALJ’s failure to
consider equivalence was not reversible error because the claimant did not offer any
theory, plausible or otherwise, as to how his impairments combined to equal a listing
Here, Petitioner did not specify which listing she believes Claimant’s DVT met or
equaled, and has not forth evidence supporting a finding that Claimant’s DVT met a
listed impairment. 20 C.F.R. § 404.1525(d).
During the hearing, counsel for Petitioner claimed Claimant’s “chronic DVT in his
right leg…created edema and a lot of difficulty with walking” and cited records that she
argued showed the DVT should have been considered at step two. (AR 1827-1828.)
Namely, a March 2012 consultation record where Claimant reported having “edema or
swelling of lower extremities of moderate magnitude on occasion [that] began after he
had a blood clot in his right leg,” and that his left foot also swelled. (AR 401-402.)
Petitioner also referenced a preliminary leg ultrasound dated May 11, 2013, reporting:
“no evidence of acute deep or superficial obstruction bilaterally. Chronic partial
obstruction is noted throughout the right leg.” (AR 741.)
Although Petitioner has cited evidence of Claimant’s prior DVT diagnosis, which
is not in question, Petitioner fails to identify evidence establishing that Claimant’s DVT
MEMORANDUM DECISION AND ORDER - 17
met or medically equaled a listed impairment during the relevant time period. 5 The
evidence relating to the functional limitations of Claimant’s DVT relied on by Petitioner
are Claimant’s own reports to medical providers, and symptom statements by Claimant
and Petitioner. The ALJ’s decision recognized the statements that Claimant’s leg would
swell with walking or prolonged sitting and that he needed to elevate and ice his leg
periodically during the day. However, the ALJ discredited the statements of both
Claimant and Petitioner as inconsistent with the record and otherwise unreliable. (AR
Petitioner has not challenged the ALJ’s assessment of Claimant’s statements. And,
as discussed above, the ALJ did not err in assigning limited weight to Petitioner’s lay
statement and testimony. Thus, the evidence relied on by Petitioner to support her
contention that Claimant’s DVT met or medically equaled a listed impairment was
discredited by the ALJ. Because Petitioner has not set forth evidence of functional
limitations which would support finding that Claimant’s DVT met a listing, the ALJ was
not required to address Claimant’s DVT at step two. Burch, 400 F.3d at 683.
The RFC Assessment and Harmless Error
Even if the ALJ erred at step two, the error was harmless if the RFC assessment
included the relevant limitations. See Buck v. Berryhill, 869 F.3d 1040, 1048–49 (9th Cir.
There is no dispute that Claimant had a history of DVT as there are records of Claimant’s rightleg DVT dating back to 2007. (AR 285, 401-402, 713, 740-741, 1221.) Indeed, some of the
medical records cited by Responded noted Claimant’s history of DVT. (Dkt. 21 at 5, n. 2.)
MEMORANDUM DECISION AND ORDER - 18
2017). The purpose of step two is to filter out claims that are too weak to be eligible for
disability benefits. Id. at 1048. “It is not meant to identify the impairments that should be
taken into account when determining the RFC. In fact, when assessing the RFC, the ALJ
must consider all limitations and restrictions imposed by every impairment of the
claimant, even those not labeled severe.” Id. at 1049.
Here, Petitioner contends the ALJ’s RFC assessment failed to account for the
symptoms and limitations relating to Claimant’s neuropathy and DVT, such as leg
swelling after a ten minute walk, increased activity, or prolonged sitting, and the need to
rest in an amount exceeding the allowable time off task during a given workday. (Dkt. 20
at 15-16.) These limitations, Petitioner argues, were not included in any hypothetical to
the vocational expert. Respondent maintains “the ALJ fully considered the alleged
limitations stemming from these impairments – swelling, pain, and attendant standing
and walking problems – when assessing [Claimant’s] RFC.” (Dkt. 21 at 5.)
The medical records cited by Petitioner reflect that Claimant experienced some
mild or limited symptoms of neuropathy and DVT – lower extremity strength
discrepancy, abnormal or absent sensation in his feet, and decreased lower extremity
reflexes and polyneuropathy. (Dkt. 20 at 12-13), (Dkt. 22 at 2-3.) Many of these same
records, however, also report Claimant had normal strength and coordination, and no
edema. (AR 741, 1329.) Again, the ALJ is the final arbitrator of ambiguities in the
record. Here, the ALJ considered the symptoms and limitations alleged and concluded
that the medical records do not support assessing all of the functional limitations in the
MEMORANDUM DECISION AND ORDER - 19
RFC as suggested by Petitioner. The ALJ’s conclusion is supported by substantial
While there are medical records diagnosing Claimant’s neuropathy and recording
his history of DVT, the mere diagnosis of an impairment is not sufficient to sustain a
finding of disability. Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 1985). Instead, the
ALJ was required to consider evidence of functional limitations and restrictions in
formulating the RFC. Burch, 400 F.3d at 683. Here, Petitioner has not identify any
evidence of functional limitations stemming from Claimant’s neuropathy and DVT that
the ALJ failed to consider.
Instead, the ALJ stated that, in determining “the claimant’s [RFC] during the
period at issue, I considered the functional limitations resulting from all of [claimant’s]
medically determinable impairments, even those that were non-severe.” (AR 2048.) In
formulating the RFC, the ALJ explained that “I have considered all symptoms and the
extent to which these symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence” as required by the regulations. (AR
2051.) The ALJ noted the walking and sitting limitations alleged by Claimant and
Petitioner are contained in their statements and testimony. (AR 2051-2051, 2056-2057.)
As discussed previously, the ALJ discounted the statements by Claimant and Petitioner
and, therefore, did not include sitting and walking limitations in the RFC.
The ALJ concluded that Claimant retained the ability to engage in independent
activities including riding his bike, walking, fishing, and sometimes attending social
gatherings. (AR 2049, 2050, 2052.) The ALJ also detailed evidence in the record
MEMORANDUM DECISION AND ORDER - 20
showing Claimant worked from home on computers and in other related fields as well as
being able to perform 150 hours of community service in July 2013. (AR 2054.) Because
the ALJ considered the walking and sitting limitations alleged by Petitioner in making the
RFC determination, any error at step two was harmless. Further, the Court finds the
ALJ’s RFC determination was supported by substantial evidence.
Consideration of Claimant’s Alcohol Use
Petitioner contends the ALJ improperly considered the role Claimant’s alcohol use
had on his severe impairments and in formulating the RFC. (Dkt. 20 at 13.) Specifically,
Petitioner argues the ALJ erred by failing to first determine that Claimant was disabled
before evaluating the impact of his alcohol use. (Dkt. 22 at 4.) Respondent maintains the
ALJ’s discussion of Claimant’s alcohol use when assessing the RFC was consistent with
the regulations. (Dkt. 21 at 7.) For the reasons that follow, the Court finds the ALJ did
not err in his consideration of Claimant’s alcohol use.
An individual is not 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). When evaluating whether a claimant’s drug
MEMORANDUM DECISION AND ORDER - 21
addiction or alcoholism (DAA) 6 is a contributing factor material to the determination of
[A]n ALJ must first conduct the five-step inquiry without separating out the
impact of alcoholism or drug addiction. If the ALJ finds that the claimant is
not disabled under the five-step inquiry, then the claimant is not entitled to
benefits and there is no need to proceed with the analysis under 20 C.F.R.
§§ 404.1535 or 416.935. If the ALJ finds that the claimant is disabled and
there is “medical evidence of [his or her] drug addiction or alcoholism,”
then the ALJ should proceed under §§ 404.1535 or 416.935 to determine if
the claimant “would still [be found] disabled if [he or she] stopped using
alcohol or drugs.” 20 C.F.R. §§ 404.1535, 416.935.
Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001); see also SSR 13-2p; Parra
v. Astrue, 481 F.3d 742, 746–47 (9th Cir. 2007). Thus, if the ALJ finds that the claimant
is not disabled under the initial five-step inquiry without separating out the impact of
alcoholism or drug addiction, then the claimant is not entitled to benefits and there is no
need to proceed with the analysis under 20 C.F.R. §§ 404.1535 or 416.935. Bustamante,
262 F.3d at 955 (“[i]t follows that an ALJ should not proceed with the analysis under §§
404.1535 or 416.935 if he or she has not yet found the claimant to be disabled under the
If the ALJ finds the claimant is disabled and proceeds to the analysis under 20
C.F.R. §§ 404.1535 or 416.935, the ALJ evaluates what limitations remain if the claimant
stopped using drugs or alcohol. If the remaining limitations would not be disabling after
“Although the terms ‘drug addiction’ and ‘alcoholism’ are medically outdated, [the SSA]
continue[s] to use the terms because they are used in the Act.” SSR 13-2p (Feb. 20, 2013)
MEMORANDUM DECISION AND ORDER - 22
applying the sequential evaluation a second time, then the claimant’s substance abuse is a
contributing factor material to the disability determination and benefits must be denied.
Parra, 481 F.3d at 747–48; 20 C.F.R. §§ 404.1535(b)(2)(i), 416.935(b)(2)(i).
Here, the ALJ conducted the initial five step inquiry and determined Claimant was
not disabled considering all of his impairments, including those caused by his alcohol
use, because he was able to do other work. See Bustamante, 262 F.3d at 955 (The ALJ
conducts the sequential analysis without separating out the impact of alcohol or drug
use.). The ALJ therefore did not proceed through the sequential evaluation a second time
to determine whether Claimant’s alcohol use was material to the disability determination
under 20 C.F.R. § 404.1535 or § 416.935. See SSR 13-2p at *4 (“Under the Act and our
regulations, we make a DAA materiality determination only when...we find that the
claimant is disabled considering all impairments, including the DAA.”); Bustamante, 262
F.3d at 955.
However, Petitioner maintains the ALJ erred at steps four and five of the initial
disability determination by improperly considering the impact and effect of Claimant’s
alcohol use on his other impairments - i.e., that his alcohol use made his other conditions
worse. (Dkt. 20 at 14) (Dkt. 22 at 5) (arguing the ALJ “put the cart before the horse.”).
Petitioner faults the ALJ for looking primarily to Claimant’s alcohol use at steps four and
five to find him not disabled, when there were a multitude of unrelated conditions that
rendered Claimant disabled. (Dkt. 22 at 4-5.) The Court disagrees.
MEMORANDUM DECISION AND ORDER - 23
The ALJ properly considered Claimant’s history of alcohol dependency in the
context of evaluating Claimant’s symptom statements; Petitioner’s lay statement and
testimony; and during his assessment of the record. (AR 2052-2057.) The ALJ is not
required to “wholly pretend drug use does not exist in making the initial disability
determination.” Missell v. Colvin, No. CV 13-8226-PCT-JAT, 2014 WL 2048082, at * 4
(D. Ariz. May 19, 2014). The ALJ may consider a claimant’s alcohol use, along with his
or her other impairments, during the initial disability determination as a factor bearing on
the credibility of symptom statements and lay testimony, and in assessing the record. See
Ogden v. Comm’r Soc. Sec. Admin., No. CV-18-00415-TUC-EJM, 2019 WL 4565183, at
*8 (D. Ariz. Sept. 20, 2019) (citing Missell, 2014 WL 2048082, *4–5 (ALJ did not err by
considering claimant’s DAA in making credibility determination.)).
While “[t]he ALJ may not find a claimant is not disabled by reason of his
substance abuse without conducting the second five-step sequential analysis set out in 20
C.F.R. §§ 404.1535(a) and 416.935(a),” “the ALJ may make reference to a claimant’s
substance abuse as relevant to corollary matters (e.g., evidence inconsistent with a
claimant’s testimony) without conducting the drug-and-alcohol analysis.” Curry v.
Colvin, No. 6:14-cv-00881-BR, 2015 WL 4067193, at *4 (D. Or. May 11, 2015) (citing
Bustamante, 262 F.3d at 955 and Esslinger v. Astrue, 479 F. App’x 59, 60 (9th Cir.
Here, the ALJ found Claimant’s alcohol-substance addiction disorder was a severe
impairment, but that Claimant did not have an impairment or combination of impairments
that met or medically equaled the severity of one of the listed impairments. (AR 2045MEMORANDUM DECISION AND ORDER - 24
2051.) The ALJ examined the alcohol use in evaluating Claimant’s representations that
he was unable to work. (AR 2054.) The ALJ concluded that the record “does not support
that [Claimant’s] mental or physical problems completely disabled him, prior to the date
last insured,” noting that Claimant’s ability to work prior to and after his alleged onset
date. (AR 2054.) Thus, the ALJ’s initial disability determination concluded that Claimant
was not disabled considering all of his impairments, including those caused by his
alcohol use. See Bustamante, 262 F.3d at 955 (The ALJ first conducts the five step
sequential analysis without separating out the impact of alcohol or drug use.).
Contrary to Petitioner’s contention, the ALJ did not improperly conclude that
Claimant was not disabled by reason of his substance abuse. Instead, the ALJ
appropriately considered Claimant’s alcohol use when assessing the record and
evaluating the symptom statements. Ogden, 2019 WL 4565183, at *8 (“[T]he ALJ
properly considered the effects of DAA when assessing the record and making the
disability determination.”). The ALJ evaluated all of Claimant’s impairments, regardless
of severity, and the limitations of those impairments, and assessed an RFC that was
supported by substantial evidence in the record. Specifically, the ALJ determined
Claimant retained the ability to perform light work with some physical and mental
limitations and that there were jobs that existed in significant numbers in the national
economy that Claimant could have performed. The ALJ therefore found Claimant not
disabled. Notably, the ALJ rejected the opinions of the state agency consultants for
proceeding to the materiality analysis, stating: “the evidence throughout the record
supports less extreme limitations even considering the alcohol abuse.” (AR 2055-2056.)
MEMORANDUM DECISION AND ORDER - 25
Based on this record, the Court finds the ALJ did not err in his consideration of
Claimant’s alcohol use during the initial disability determination.
Petitioner’s reliance on statements made by the ALJ during the hearing do not
support her claims of error. (Dkt. 20 at 14-15.) The exchanges with the ALJ at the
hearing quoted by Petitioner are instead indicative of the non-adversarial nature of
disability hearings. “Social Security disability determinations are ‘investigatory, or
inquisitorial, rather than adversarial.’” Moran v. Astrue, 569 F.3d 108, 112 (2nd Cir.
2009). Even where a claimant is represented by counsel, the ALJ has a duty to develop
the record and explore for relevant facts, which is what the ALJ did here. Crawford &
Co. v. Apfel, 235 F.3d 1298, 1304 (11th Cir. 2000) (“[I]t is the duty of the ALJ to
investigate the facts and develop the arguments both for and against granting
benefits[.]”); Chiccino v. Berryhill, No. 3:17-cv-05713-TLF, 2018 WL 3769084, at * 2
(W.D. Wash. Aug. 9, 2018) (“The hearing is not adversarial in nature; the ALJ has a duty
to develop the record regardless whether the claimant is represented by counsel and must
inform himself or herself about the facts that are relevant.”).
“[T]he purpose of a Social Security hearing is to adduce pertinent information for
the ALJ to later make a determination based on the entire record. It is not to reach an
ultimate conclusion or render a final verdict.” Stottlemire v. Berryhill, No. 5:16-cv-90,
2018 WL 1277740, at *11 (S.D. Ga. March 12, 2018). In turn, the focus of the Court’s
inquiry on review “is not whether the ALJ adequately explained each statement made on
the record at the hearing but whether the ALJ’s final determination rests on substantial
evidence.” Id.; 42 U.S.C. § 405(g) (Judicial review is of the “final decision of the
MEMORANDUM DECISION AND ORDER - 26
Commissioner of Social Security made after a hearing to which [the claimant] was a
Here, the ALJ’s written decision became the final decision of the Commissioner
when the Appeals Council denied review. 20 C.F.R. § 404.981. While the ALJ’s hearing
comments are part of the administrative record, the ALJ’s written decision is the final
disability determination under review. See P.C.S. v. Comm’r Soc. Sec. Admin., No. 091849, 2011 WL 4499368 at *1 (W.D. La. Sept. 27, 2011) (holding that an ALJ’s written
decision, which provides findings of fact and the reasons for denying a claim, controls
over statements that the ALJ made at the administrative hearing); Woods v. Barnhart, No.
03–2592–KJV, 2004 WL 1558794, *8 n. 5 (D. Kan. July 12, 2004) (“the ALJ’s written
decision, not his questions at the hearing, control the findings subject to review.”); Smith
v. Astrue, No. 2:08-cv-452, 2009 WL 4067393, at *4 (E.D. Va. Nov. 2, 2009) (finding
the “written decision is the mechanism for the ALJ to render his decision” and that “[t]he
ALJ’s statements on the record cannot disturb the final written decision.”).
As discussed above, the ALJ adequately explained his decision and supported it
with substantial evidence. The ALJ concluded Claimant was not disabled and, therefore,
properly did not proceed to determine whether Claimant’s alcohol use was material to the
disability determination. Indeed, the ALJ’s statements at the hearing reflect that he
understood the two-step process for addressing a claimant’s substance abuse. (Dkt. 20 at
15) (citing AR 1836) (ALJ: “Well, I think that (alcoholism) kills your claim, ultimately. I
mean if I were to find him disabled for some reason, I think the [DAA] knocks the case
MEMORANDUM DECISION AND ORDER - 27
To the extent the ALJ’s decision is read as having impermissibly considered the
effect of Claimant’s alcohol abuse in making the disability determination, the Court finds
any error in that regard was harmless. Parra, 481 F.3d at 747 (applying harmless error
analysis to ALJ’s failure to conduct disability determination before considering whether
alcoholism was a material factor). The ALJ gave specific non-alcohol-use reasons
supported by substantial evidence to find Claimant not disabled. (AR 2051-2060)
(discussing Claimant’s other impairments, namely diabetes and seizures; functional
limitations; and ability to work.) These reasons, standing alone, are sufficient to affirm
the decision of the ALJ.
Based upon the foregoing, the Court being otherwise fully advised in the premises,
it is hereby ORDERED that the Commissioner’s decision finding that the Petitioner is
not disabled within the meaning of the Social Security Act is AFFIRMED and the
petition for review is DISMISSED.
DATED: March 31, 2021
Honorable Candy W. Dale
United States Magistrate Judge
MEMORANDUM DECISION AND ORDER - 28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?