Watkins v. Commissioner of Social Security

Filing 20

ORDER re 2 Complaint filed by Tracy Lynn Watkins. The Court affirms the decision of the ALJ. Judgment shall be entered in favor of the Commissioner and against claimant. Signed by Magistrate Judge CJ Williams on 02/13/2017. (jjh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
TRACY LYNN WATKINS,
Plaintiff,

No. 16-CV-4028-CJW

vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,

MEMORANDUM OPINION AND
ORDER

Defendant.
___________________________
The plaintiff, Tracy Lynn Watkins (claimant), seeks judicial review of a final
decision of the Commissioner of Social Security (Commissioner) denying claimant’s
application for disability insurance benefits (DIB) under Title II of the Social Security
Act (Act), 42 U.S.C. § 401 et seq. For the reasons that follow, the Court affirms the
Commissioner’s decision.
I.

BACKGROUND

For this background, the Court relies on the administrative record (AR) and the
Joint Stipulation of Facts (Doc. 11). Claimant was born in 1961. (AR 33, 77, 171).
Claimant filed her DIB application on March 16, 2014, with an alleged onset date of
April 12, 2009. (AR 13, 171-72). Her claim was denied on initial consideration on
September 3, 2014, and again denied upon reconsideration on December 30, 2014. (AR
109-12, 114-17). Pursuant to her request for a hearing, Administrative Law Judge (ALJ)
David G. Buell held a hearing on January 4, 2016. (AR 39-78). At the hearing, claimant
was represented by an attorney. Claimant and a vocational expert testified. Then on
February 2, 2016, the ALJ issued a decision denying claimant’s application for the
relevant time period starting on April 12, 2009. (AR 13-34). Claimant sought review

from the Appeals Council, which denied her request on February 24, 2016. (AR 1-6.
The ALJ’s decision thus became the final decision of the Commissioner. Sims v. Apfel,
530 U.S. 103, 107 (2000).
Claimant filed a complaint (Doc. 2) with this Court on April 22, 2016, seeking
review of the ALJ’s decision. On June 17, 2016, with the consent of the parties (Doc.
7), the Honorable Linda R. Reade transferred this case to a United States Magistrate
Judge for final disposition and entry of judgment. On November 23, 2016, the matter
was fully briefed.

II.

DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF

A disability is defined as “the inability 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). An
individual has a disability when, due to his physical or mental impairments, he “is not
only unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists . . . in
significant numbers either in the region where such individual lives or in several regions
of the country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). If the claimant is able to
do work which exists in the national economy but is unemployed because of inability to
get work, lack of opportunities in the local area, economic conditions, employer hiring
practices, or other factors, the ALJ will still find the claimant not disabled.
To determine whether a claimant has a disability within the meaning of the Act,
the Commissioner follows the five-step sequential evaluation process outlined in the
regulations.

Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir. 2007).

First, the

Commissioner will consider a claimant’s work activity. If the claimant is engaged in
substantial gainful activity, then the claimant is not disabled. “Substantial” work activity
2

involves physical or mental activities. “Gainful” activity is work done for pay or profit,
even if the claimant did not ultimately receive pay or profit.
Second, if the claimant is not engaged in substantial gainful activity, then the
Commissioner looks to the severity of the claimant’s physical and mental impairments.
If the impairments are not severe, then the claimant is not disabled. An impairment is
not severe if it does not significantly limit a claimant’s physical or mental ability to
perform basic work activities. Kirby, 500 F.3d at 707.
The ability to do basic work activities means the ability and aptitude necessary to
perform most jobs. These include: (1) physical functions such as walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for
seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple
instructions; (4) use of judgment; (5) responding appropriately to supervision, coworkers, and usual work situations; and (6) dealing with changes in a routine work
setting. Bowen v. Yuckert, 482 U.S. 137, 141 (1987); 20 C.F.R. § 404.1521(b)).
Third, if the claimant has a severe impairment, then the Commissioner will
determine the medical severity of the impairment. If the impairment meets or equals one
of the presumptively disabling impairments listed in the regulations, then the claimant is
considered disabled regardless of age, education, and work experience.

Kelley v.

Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one
of the presumptively disabling impairments, then the Commissioner will assess the
claimant’s residual functional capacity (RFC) and the demands of his past relevant work.
If the claimant can still do his past relevant work then he is considered not disabled. Past
relevant work is any work the claimant performed within the past fifteen years of his
application that was substantial gainful activity and lasted long enough for the claimant
to learn how to do it. “RFC is a medical question defined wholly in terms of the
claimant’s physical ability to perform exertional tasks or, in other words, what the
3

claimant can still do despite his or her physical or mental limitations.” Lewis v. Barnhart,
353 F.3d 642, 646 (8th Cir. 2003) (citations and internal quotation marks omitted). The
RFC is based on all relevant medical and other evidence. The claimant is responsible for
providing the evidence the Commissioner will use to determine the RFC. Id. If a
claimant retains enough RFC to perform past relevant work, then the claimant is not
disabled.
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant
to perform past relevant work, then the burden shifts to the Commissioner to show there
is other work the claimant can do, given the claimant’s RFC, age, education, and work
experience. The Commissioner must show not only that the claimant’s RFC will allow
him or her to make the adjustment to other work, but also that other work exists in
significant numbers in the national economy. Eichelberger v. Barnhart, 390 F.3d 584,
591 (8th Cir. 2004). If the claimant can make the adjustment, then the Commissioner
will find the claimant not disabled. At Step Five, the Commissioner has the responsibility
of developing the claimant’s complete medical history before making a determination
about the existence of a disability. The burden of persuasion to prove disability remains
on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
If after these five steps, the ALJ has determined the claimant is disabled, but there
is medical evidence of substance use disorders, the ALJ must decide if that substance use
was a contributing factor material to the determination of disability.

42 U.S.C.

§423(d)(2)(C). The ALJ must then evaluate the extent of the claimant’s limitations
without the substance use. Id. If the limitations would not be disabling, then the disorder
is a contributing factor material to determining disability, and the claimant is not disabled.

4

III.

THE ALJ’S FINDINGS

The ALJ made the following findings at each step.
At Step One, evaluating claimant’s work attempt after her alleged onset date, the
ALJ found that claimant has not engaged in substantial gainful activity since April 12,
2009. (AR 16).
At Step Two, the ALJ found that claimant has the following severe impairments:
mood disorder; degenerative disc disease of the cervical spine with chronic radiculopathy
at C7; posttraumatic stress disorder (PTSD); anxiety disorder; bilateral carpal tunnel
syndrome (CTS); and methamphetamine dependence in partial remission since April
2015. (AR 16). The ALJ found claimant has the non-severe impairments of headaches;
hepatitis C; arthritis in hands; derceased vision; chronic obstructive pulmonary disorder
(COPD); and psoriasis. (AR 16-17).
At Step Three, the ALJ found that claimant’s impairments, including her substance
abuse disorder, satisfy Listing 12.06 and Listing 12.09. (AR 17-22). The ALJ, however,
determined that if claimant stopped her substance abuse then she would no longer satisfy
either listing. (AR 22-23).
At Step Four, the ALJ found that if claimant stopped her substance abuse then
claimant would have the following residual functional capacity:
[Claimant can] perform light work as defined in 20 CFR 404.1567(b) but
with additional limitations. She would be able to respond to changes in her
environment and perform simple and repetitive work that does not require
more than brief, incidental contact with the public. The claimant would be
able to perform work that does not require more than frequent stooping or
crawling.
(AR 23-33). The ALJ also determined that claimant has no past relevant work. (AR
24).
Finally, at Step Five, the ALJ found that if claimant stopped her substance abuse
then an individual with her same age, education, and RFC could perform the following
5

jobs—photocopy machine operator, routing clerk, packing line worker, addressor, and
callout operator—that exist in significant numbers in the national economy. (AR 34).
IV.

THE SUBSTANTIAL EVIDENCE STANDARD

The Commissioner’s decision must be affirmed “if it is supported by substantial
evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.
2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive . . . .”).
“Substantial evidence is less than a preponderance, but enough that a reasonable mind
might accept as adequate to support a conclusion.” Lewis, 353 F.3d at 645. The Eighth
Circuit Court of Appeals explains the standard as “something less than the weight of the
evidence and [that] allows for the possibility of drawing two inconsistent conclusions,
thus it embodies a zone of choice within which the [Commissioner] may decide to grant
or deny benefits without being subject to reversal on appeal.” Culbertson v. Shalala, 30
F.3d 934, 939 (8th Cir. 1994) (citations and internal quotation marks omitted).
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but we do not re-weigh the
evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005) (citation omitted).
The court considers both evidence which supports the Commissioner’s decision and
evidence that detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010).
The court must “search the record for evidence contradicting the [Commissioner’s]
decision and give that evidence appropriate weight when determining whether the overall
evidence in support is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir.
2003) (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply
a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health &
Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
6

“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.” Roe
v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186, 188
(8th Cir. 1994)). Instead, if, after reviewing the evidence, the court finds it “possible to
draw two inconsistent positions from the evidence and one of those positions represents
the Commissioner’s findings, [the court] must affirm the [Commissioner’s] denial of
benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008)). This is true even in cases where the court “might have weighed the evidence
differently.” Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817,
822 (8th Cir. 1992)). The court may not reverse the Commissioner’s decision “merely
because substantial evidence would have supported an opposite decision.” Baker v.
Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v. Barnhart, 421 F.3d 785, 789
(8th Cir. 2005) (citation omitted) (“[A]n administrative decision is not subject to reversal
simply because some evidence may support the opposite conclusion.”).

V.

DISCUSSION

The Court now turns to address claimant’s arguments. Claimant alleges that the
RFC assessment is flawed. Claimant’s brief does not contain extensive or detailed legal
arguments. Thus the Court will, to its best understanding, address the legal arguments
claimant raises. The Court has categorized claimant’s argument as follows: (1) the ALJ
failed to properly weigh Dr. Carter-Visscher’s report for the VA; (2) the record supports
that claimant is in complete remission, thus her substance abuse is not a contributing
factor material to her disability determination and therefore the RFC assessment is wrong;
and (3) Rhines v. Harris, 634 F.2d 1076 (8th Cir. 1980) provides authority that claimant
is not realistically employable.

7

Before the Court addresses claimant’s arguments, a brief history of claimant’s
substance abuse is appropriate as it is relevant to the claims. Dr. Carter-Visscher’s report
nicely summarizes claimant’s substance abuse history as follows:
Pre-military: Some social alcohol and marijuana use with no negative
consequences.
Military: DUI after first joined the military related to social alcohol use.
Started using methamphetamine socially a couple of years into the military
and did not meet criteria for amphetamine dependence at that time. Began
using methamphetamine regularly after the sexual assault to “forget” the
rape and to keep her awake because she was afraid to sleep as she felt
vulnerable to being assaulted in the dark.
Post-military: Methamphetamine dependence continued until about 1995
when cocaine became the primary substance of choice. She used cocaine
and met criteria for cocaine dependence from about 1995-1998 until she
went to jail. After jail, she refrained from methamphetamine and cocaine
use until she relapsed on methamphetamine in 2002. She then used
methamphetamine off and on until April 2013. She reported a couple of
periods of abstinence from drug use around 2005-2007 and again from
2010-late 2011 or 2012. She reported significant methamphetamine use in
2012 until she recently stopped use again in April 2013. She reported some
marijuana over the years but it has not been consistent and has not been her
primary drug of choice. Her records also report a history of benzodiazepine
dependence and she admitted to obtaining benzodiazepines illegally.
(AR 593-94) (emphasis added). Also, the report notes that claimant participated in
substance dependence treatment approximately on six occasions from 1993-2005 and that
claimant had a history of noncompliance with taking her prescribed medication. (AR
592).
A.

ALJ Properly Considered Dr. Carter-Visscher’s Disability Benefits
Evaluation for Another Agency

The U.S. Department of Veterans Affairs’ (VA) found claimant to be 100%
disabled. (AR 32). In this context, Carter-Visscher, Ph.D., a clinical psychologist,
authored an Initial Psychological Disability Questionnaire on PTSD [posttraumatic stress
8

disorder] for the VA. (AR 581-99). The report was based on a one-time evaluation of
claimant on May 21, 2013. The report found claimant’s substance abuse to be in “early
remission.” Claimant argues that the ALJ failed to properly consider this report.
Claimant contends that this report, when evaluated properly by the ALJ,
undermines the RFC assessment.1 (Doc. 17, at 5). The Court infers claimant’s argument
to logically progress as follows: because claimant has been sober since May 2013 (date
of report), her severe impairments (as they exist from May 2013 to the date of the ALJ’s
decision) satisfy listings 12.06 and 12.09 because her drug use is no longer a contributing
material factor; thus she is disabled. Or alternatively, claimant is disabled even without
satisfying the listings as her RFC would render her unemployable. The Commissioner
maintains that the ALJ properly weighed this report authored for another agency, and
that the RFC assessment by the ALJ was proper. (Doc. 18).
The record as a whole supports the ALJ’s finding that claimant continued her drug
use. Furthermore, the record supports the ALJ’s finding that in periods of sobriety
claimant has less active symptomology of her mental impairments. When sober, claimant

1

Claimant misquotes Dr. Carter-Visscher’s report. Claimant quotes the report as follows:
“However, Tracy has not participated in treatment that assist may [sic] her in learning the coping
skills necessary to effectively manage her PTSD symptoms and maintain gainful employment.
Therefore, this provider can say that she is unable to gain and maintain gainful employment due
to her PTSD symptoms as this time.” (Doc. 17, at 5 (the quote should read, “[t]herefore, this
provider cannot say that she is unable to gain and maintain gainful employment due to her PTSD
symptoms as this time.” (AR 599)). The Court believes this to be an unintentional typo. Even
if claimant were to rely on this quote to contend that Dr. Carter-Visscher opined claimant is
unable to work, such an opinion is a non-medical opinion that invades the discretion of the
Commissioner and as such gets little weight. See Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir.
2005) (citing Stormo, 377 F.3d at 806) (opinions by treating medical professionals stating that
an applicant is “unable to work” or “disabled” get limited weight). Furthermore, as the ALJ
correctly noted, Dr. Carter-Visscher opined on disability under the standards of another agency,
namely the VA. Other agency’s disability findings are not binding on the Commissioner. 20
C.F.R. § 404.1504.

9

does not satisfy any listing and her RFC will allow her to find employment. Therefore,
because claimant’s drug use is a contributing material factor, she is not disabled.
With regard to Dr. Carter-Visscher’s report, in the absence of controlling weight
being given to a treating source, the ALJ will weigh the medical opinions on the record.
See 20 C.F.R. § 404.1527(c) (concerning examining relationship, treatment relationship,
supportability, consistency, specialization, and other factors). Under the regulations,
acceptable medical sources include licensed or certified psychologists. See 20 C.F.R. §
404.1513(a)(2). Generally, the opinions of nonexamining sources are given less weight
than those of examining sources.

Wildman v. Astrue, 596 F.3d 959, 967 (citation

omitted); 20 C.F.R. 404.1527(c)(1). The ALJ found Dr. Carter-Visscher to be an
examining source and gave his opinion “some weight.” AR 17, 27. Commenting on
Dr. Carter-Vissscher’s report, the ALJ stated the following:
Although Dr. Carter-Visscher stated that she was unable to differentiate
between what symptoms and to what degree the claimant was affected by
substance use versus her psychological condition, it is clear that she lacked
a full perspective, as she saw the claimant on just one occasion. To the
contrary, the undersigned is not so limited, since the evidence as a whole –
including later findings from treating sources – clearly illustrates a greater
level of severity when substance use is considered.
AR 21-22. The ALJ took note of portions of Dr. Carter-Visscher’s opinion as follows:
claimant’s symptoms related to her psychological disorders would exist, to some degree,
even in the absence of substance abuse (AR 22); claimant did not seek out treatment for
her mental health concerns (AR 26; see AR 592 (“[Claimant] has been prescribed
medications pretty consistently for several years but did not take them consistently over
the years, even during periods of sobriety.”)); and claimant had the severe impairments
of PTSD and anxiety (AR 22). The ALJ cited a portion of Dr. Carter-Visscher’s report
(“[claimant’s] PTSD symptoms and secondary substance dependence disorders have
created significant difficulty with concentration, ability to tolerate work related stress and
10

moderate to severe absenteeism, which has made it difficult for her to maintain
employment for a substantial period of time. However, [the claimant] has not participated
in treatment that may assist her in learning the coping skills necessary to effectively
manage her PTSD symptoms and maintain employment. Therefore, this provider cannot
say that she is unable to gain and maintain gainful employment due to her PTSD
symptoms at this time.”). AR 26-27 (second alteration in original). Describing his
decision to give Dr. Carter-Visscher some weight, the ALJ stated:
Although inherently ambiguous, such that the claimant is considered to
have “difficulty” or “moderate” impairments in certain activities, the
opinion of Dr. Carter-Visscher is given some weight, to the degree that
her alleged limitations are consistent with the remainder of the evidence
regarding psychological impairment, with the specific aspects that the
claimant has not participated in appropriate treatment for her conditions
and is not found to definitively be unable to perform substantial gainful
activity afforded greater consideration. Although the second portion
thereof is a conclusory statement, and one upon which final determination
is reserved to the Commissioner, it is nonetheless consistent with the
ultimate outcome given the preponderance of the evidence.
AR 27. Specifically, Dr. Carter-Visscher’s report lists claimant’s diagnoses as follows:
(1) PTSD; (2) amphetamine dependence2 in “early full remission since April 2013”; (3)
cocaine dependence currently in “sustained full remission.” AR 583. At the conclusion
of the report, Dr. Carter-Visscher opines claimant’s “PTSD and substance dependence
disorders, currently in remission, are most likely caused by or a result of her sexual

2

The Court notes the interchangeable use throughout the administrative record between the terms
methamphetamine and amphetamine. Claimant testified to smoking ice (slang for crystal
methamphetamine). The urine of a person who used methamphetamine will test positive for
amphetamine. See AR 593 (Dr. Carter-Visscher writes that claimant never met the criteria for
amphetamine dependence and notes that claimant “recently stopped use [of methamphetamine]
again in April 2013”; (AR 583) (“methamphetamine dependence … currently in early full
remission since April 2013”); and (AR 776) (Dr. Skorey’s clinic note (AR 775) describes
claimant as relapsing with “amphetamine” and then concludes his diagnostic impression that
claimant is dependent on “methamphetamine”).

11

assault while serving in active duty military.” AR 599. The Court notes that much of
the report consists of check-marks (AR 582-86, 594-98).
The Court finds that the ALJ properly considered and weighed Dr. CarterVisscher’s report. AR 17, 21-22, 26-27, 29. Dr. Carter-Visscher evaluated claimant on
a single occasion. Kirby, 500 F.3d at 709 (opinion of a consultative physician was entitled
to no special weight). Furthermore, the ALJ noted inconsistencies in the record that
contradicted the report. AR 18 (multiple sources on the record state that claimant did
continue abusing substances through April 2015). See Estes v. Barnhart, 275 F.3d 722,
735 (8th Cir. 2002) (finding the ALJ properly gave little weight to a treating
psychologist’s opinion, which was inconsistent with other medical opinions on record);
see also Pearsall v. Massanari, 274 F.3d 1211, 1218-19 (8th Cir. 2001) (“It is the ALJ’s
function to resolve conflicts among the opinions of various treating and examining
physicians [and the] ALJ may reject the conclusions of any medical expert . . . if they
are inconsistent with the record as whole.”); Bentley v. Shalala, 52 F.3d 784, 785-87
(8th Cir. 1995) (same). Given these inconsistencies with the other evidence on the
record, the ALJ was justified in giving the report only “some weight.” Furthermore, the
ALJ was justified in giving less weight to Dr. Carter-Visscher’s report because a
significant portion of it lists where Dr. Carter-Visscher made checkmarks. See Wildman,
596 F.3d at 964 (ALJ properly discounted a treating source’s opinion where it consisted
of three checklist forms, did not cite medical evidence, and provided at most little
elaboration). Thus, the Court finds that the ALJ’s decision to give Dr. Carter-Visscher’s
report some weight was proper.
B.

The Record Supports Finding Claimant’s Drug Use Is A Material
Contributing Factor Thus The RFC Assessment is Proper

Claimant argues that her “substance abuse disorder is not a contributing factor
material to the determination of disability, as she was in remission at the time of Dr.
12

Carter-Visscher’s evaluation [May 2013].” (Doc. 17, at 7). The ALJ, however, found
that claimant’s drug use continued into early 2015 (AR 18) and that claimant’s
methamphetamine dependence was only in partial remission since April 2015 (AR 16).
The record supports this finding.
On January 4, 2016, at the hearing before the ALJ, counsel for claimant stated
that claimant has struggled with substance abuse but has been clean for approximately
three years with the caveat that claimant relapsed for three months (ended in December
2014). AR 43. Claimant continued to make this assertion at the hearing. Claimant told
the ALJ that the last time that she used methamphetamine was December 23, 2014. AR
69. She further elaborated that any records to the contrary were likely a result of her
“therapist” recording her “urges/desires” to use. AR 70-71. Overall, claimant described
herself as being sober for “three years [starting four years ago]” and then “us[ing] for
like three months, and then g[etting] back on board here a year, ago, December, this
time.” AR 60.
The ALJ found claimant’s testimony to be incredible. The ALJ wrote that “the
record is quite clear and convincing that [claimant] continued to use methamphetamine
through April 2015.” AR 18. The ALJ found multiple sources confirm claimant’s drug
use in early 2015. Id.3 The ALJ further wrote that claimant “was clearly less than
forthcoming regarding her substance use when testifying under oath at the hearing . . .
detract[ing] from her credibility overall.” (AR 30).
From a thorough review, the Court finds that the record as a whole supports the
ALJ’s finding of claimant’s testimony about her sobriety since December 23, 2014 to be

3

The ALJ wrote that “multiple sources confirm the claimant’s direct report of methamphetamine

use during this period in early 2015.” (AR 18). The Court finds this to be a typographical error
given the rest of the ALJ’s decision. The Court interprets this statement to mean despite
claimant’s direct denial of use, multiple sources confirm claimant’s methamphetamine use into
early 2015. Regardless this sentence is of minor importance.

13

incredible.

The record clearly shows that claimant continued her drug use beyond

December 2014. Records from March and April of 2015 clearly document claimant’s
continued drug use. First, the record reflects several interactions between claimant and
Sioux Falls VA HCS in March 2015. (AR 777-87). A note authored on March 16, 2015,
by a social worker, states claimant is “smoking ICE daily. Last use was last night. She
intends to NOT use tonight.” (AR 779). Then the record reflects VA staff trying to
unsuccessfully contact claimant to follow-up with her call (AR 780—claimant did not
pick up her phone). Then on March 18, 2015, the record reflects that a VA staff member
spoke with claimant and noted the following: claimant is staying with daughter so she has
not used for past two days; claimant wants more intensive treatment to “accomplish stable
recovery.” (AR 777). Claimant failed to appear for her scheduled ATP [Addictions
Treatment Program] Intake at the VA March 24, 2015. (AR 776-77). Second, notes
from April 2015 verify claimant’s continued drug use. A note from the VA dated April
15, 2015, documented claimant’s medication check. The treatment note was authored by
Dr. Skorey. (AR 775-76) (“[S]he has had problems with relapse amphetamines. She
did go ahead and move to Lamars to be closer to her older daughter. She says that this
has been stabilizing. She had made contact with ATP in Sioux Falls, and was scheduled
to go into the IOP [Intensive Outpatient] program . . . Mr. Young’s note indicated that
people had mentioned to him that she was having a significant relapse.”). Later, on April
27, 2015, a social worker recorded that claimant stopped by the clinic and reported “last
using methamphetamine three weeks ago.” (AR 772). This would place claimant’s last
use within the month of April 2015. Therefore the record supports the ALJ’s finding of
claimant’s continued drug use into 2015.

14

1. ALJ’s finding that claimant’s impairments—when stopping her drug
use—would not satisfy Listings 12.06 and 12.09 is proper
The Court now moves to assess the remainder of the ALJ’s decisions. The central
inquiry is whether the Commissioner “would still find [claimant] disabled if [she] stopped
using drugs.” 20 C.F.R. 404.1535(b)(1). Claimant carries the burden of proving that
her “substance abuse is not a contributing factor material to the claimed disability.”
Estes, 275 F.3d at 725. The ALJ must follow two steps here. First, the ALJ must
determine if any of claimant’s limitations would remain once claimant stopped her
substance abuse. Second, of those, if any, remaining limitations would be disabling.
Rehder v. Apfel, 205 F.3d 1056, 1060 (8th Cir. 2000). The Commissioner contends that
the ALJ’s decision was supported by the record and was within his zone of choice. (Doc.
18).
The ALJ determined that claimant satisfied listings 12.06 and 12.09 while using
drugs; without substance abuse, however, the ALJ found claimant no longer satisfied
either listing. When claimant uses drugs, the ALJ found that the claimant satisfied listing
12.06 (anxiety-related disorders) and also by default listing 12.09 (through satisfying the
requirements of listing 12.06—without listing 12.06 claimant would not otherwise satisfy
12.09). In regard to listing 12.06 claimant satisfied the following: “paragraph A” criteria
notably with recurrent/intrusive recollections of a traumatic experience, “paragraph B”
criteria with marked restriction in maintaining social functioning and marked restriction
in maintaining concentration/persistence/pace.

The ALJ, however, found that once

claimant stopped her drug use she was less affected by “active symptomatology” for her
mental condition. (AR 21) (relying on Dr. Skorey’s opinion that claimant’s anxiety
disorder related to methamphetamine abuse).4 The ALJ concluded that in the absence of

4

The ALJ discounted Dr. Carter-Visscher’s opinion—that claimant’s methamphetamine
dependence is “secondary to PTSD”—by noting that Dr. Carter-Visscher admitted that she was
unable to tell “to what degree” claimant’s substance abuse affected her psychological condition,

15

drug use, claimant would not satisfy listing 12.06’s paragraph B criteria. With no drug
use, claimant would only have: mild limitation in activities of daily living; moderate
difficulties in social functioning; and moderate difficulties in concentration, persistence,
and pace. (AR 23). Also, claimant would have no periods of extended decompensation,
and claimant would not meet listing 12.06’s paragraph C criteria. Id. Thus when
claimant was not using illegal drugs, she would fail to satisfy either listing (by her failure
to satisfy listing 12.06’s paragraph B criteria).
There is substantial evidence on the record as a whole that supports the ALJ’s
finding that when claimant was not using illegal drugs, she no longer satisfied either
listing. Substantial evidence supports the finding that when claimant was not using illegal
drugs she only had mild limitations in activities of daily living, moderate difficulties in
social functioning, and moderate difficulties in concentration, persistence, and pace for
listing 12.06. For example, during a period of sobriety, in April 24, 2013, (24 days
since drug use) a note from an initial session describes claimant as having a euthymic
mood and being very pleasant with full affect, congruent mood, connected and clear
thoughts, appropriate speech, goal oriented. (AR 411). On May 23, 2013, (56 days
since drug use) a clinic note reflects that claimant “feels good” about being sober and
wishes to remain sober so that she can be there for her grandchildren, is in a relationship
with a boyfriend, got a puppy, and attends rummage sales and goes to Good Will. (AR
407-08).

The same note also described claimant as oriented to time/place/person,

punctual arrival, appropriate dress and hygiene, good eye contact, cooperative and
pleasant, good recent and remote memory, goal oriented, fair insight and judgment. (AR
409). The Commissioner points to several other medical records documenting as normal
and positive claimant’s mood, appearance, and interactions (Doc. 18, at 7-10), as follows:

while he lacked such limitation as he reviewed the “evidence as whole.” (AR 22). As noted,
the ALJ only gave Dr. Carter-Visscher’s report “some” weight.

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(AR 400-01) (clinic note dated June 23, 2016, states claimant displayed some anxiety but
also displayed clear thoughts, goal oriented, casual dress, good hygiene, good eye
contact, pleasant and euthymic mood, talkative mood, denied suicidal thoughts); (AR
467) (clinic note signed by Dr. Peter Pick on July 7, 2014, states claimant reported she
had mild insomnia, was afraid of crowds, but reported she was not afraid of specific
people and displayed an appropriate and cooperative affect, was alert and oriented,
normal

intellect/judgment/memory/knowledge/conversation/insight,

and

displayed

coherent ideas); (AR 482) (clinic note signed by treating psychiatrist Dr. Skorey on
August 26, 2014, states claimant is taking nortriptyline for headaches, seemed
“somewhat” anxious, but was also alert, cooperative, oriented, good motor activity with
no tremors or tics); (AR 734, 776) (clinic notes signed by Dr. Skorey in April 2015 and
November 2015 describing claimant as alert and cooperative, positive mood, no tremors
or tics, no hallucinations/delusions/compulsions, fair sleep, fair appetite, no suicidal
thoughts); (AR 784) (clinic note by Dr. Pick signed March 12, 2015, neurologist finding
a positive mood, alert, oriented, some mild insomnia and fear of crowds, normal
insight/judgment/memory/conversation, and normal gait and normal muscle tone for
neck, back, and extremities); (AR 747) (clinic note signed August 2015 describing
claimant as displaying good eye contact, appropriate dress and speech); and (AR 729)
(clinic note signed December 8, 2015, describing claimant as self-reporting that she “feels
safe in her living environment,” denies headache, denies depressed mood/sleep
disturbances/excessive worry/irritability/suicidal thoughts).
Overall, the Court finds that substantial evidence in the record as a whole supports
the ALJ’s finding that when sober, claimant’s impairments did not satisfy any listing.

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2. The ALJ’s finding that claimant’s remaining limitations, when sober,
are not disabling is supported
The Commissioner contends that the RFC assessment was within the zone of
choice by the ALJ. Here claimant’s RFC renders her not disabled as employment exists
for someone with her RFC, age, education, and work experience. The Court finds that
the RFC assessment is supported by substantial evidence. The same evidence cited in
the previous section also supports the ALJ’s RFC assessment. Pearsall v. Massanari,
274 F.3d 1211, 1217-18 (8th Cir. 2001) (citation omitted) (The ALJ has the responsibility
to make an RFC assessment for a claimant based on “all relevant evidence, including
medical records, observations of treating physicians and others, and claimant’s own
descriptions of his limitations.”).
Further, the ALJ’s credibility assessment further supports claimant’s RFC. Before
an RFC assessment is made, the ALJ must determine the claimant’s credibility. The ALJ
uses the well-established Polaski factors to evaluate a claimant’s subjective complaints.
Id. (citing Polaski v. Heckler, 739 F.2d 1320 (8th Cir.1984)). An ALJ may discount a
claimant’s subjective complaints where they are inconsistent with “the evidence as
whole.” Id. (citation omitted). See Pearsall, 274 F.3d at 1217-18 (citing Benskin v.
Bowen, 830 F.2d 878, 882 (8th Cir.1987)) (“The credibility of a claimant’s subjective
testimony is primarily for the ALJ to decide, not the courts.”).
Claimant’s testimony at the hearing supports the ALJ’s finding that claimant is
able to do light work, have incidental and brief contact with the public, respond to
environmental changes, frequently stoop/crawl, and perform simple-repetitive work.
Claimant testified that she drives herself daily, does chores without assistance on a daily
basis, visits her daughter and grandchildren often (AR 57), goes grocery shopping, tries
to paint as a hobby “a little bit here and there” (AR 58), goes to AA meetings a couple
of times per week (AR 59), her daughter oversees her finances (AR 61-62), watches her
grandchildren for a “couple of hours” some days of the week (AR 67).
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In the

“Interrogatories” to the Social Security Administration, which claimant completed and
signed on October 25, 2015, claimant writes that she engages in the hobby of “autoalogy
[sic]” whereby she meets on a weekly basis on Sunday with “ladies” from Floyd Valley
Apartments to “do autoalogy.” (AR 307). Claimant answered “yes” to the question of
whether she attends religious or family events.
In regards to credibility, the ALJ found the claimant to be credible regarding her
symptoms/limitations in her “periods of substance abuse.” (AR 21). During periods of
sobriety, the ALJ found claimant’s subjective testimony to be “minimally credible.” (AR
25). (“[T]he allegations of limitations and a pain level that precludes all types of work
are inconsistent with the objective medical evidence, the absence of more aggressive
treatment, supporting medical opinions, and the evidence as a whole; thus, the allegations
are minimally credible.”). The ALJ properly considered claimant’s failure to comply
with medication. See Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir. 2003) (“An
ALJ may discount a claimant’s subjective complaints of pain based on the failure by
claimant to pursue regular medical treatment”); see also Goodale v. Massanari, 257 F.3d
771, 774 (8th Cir. 2001) (ALJ found claimant’s subjective complaints of pain incredible
where claimant did not seek medical treatment and only took vitamins and aspirin to
alleviate pain).
The ALJ also noted that the record supports a finding that claimant “failed to seek
out appropriate treatment for her mental health conditions.” (AR 26). Dr. CarterVisscher stated that claimant did not “participate[ ] in treatment that may assist her in
learning the coping skills necessary to effectively manage her PTSD symptoms and
maintain employment.” (AR 387). A treatment note from May 23, 2013 states claimant
self-reported that she is currently “not on any psychotropic medications.” (AR 407). A
clinic note dated December 8, 2015 states claimant never stated Duloxetine “at all” and
“not taking” Topimirate. (AR 729). Overall, the record supports the ALJ’s credibility
findings.
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For the sake of thoroughness of its review, the Court addresses an argument
neither party raises. There is no evidence before the Court that claimant’s mental health
problems caused her noncompliance with her medications/treatments and causes her drug
use. See Powers v. Astrue, No. 4:09CV3016, 2010 WL 1233934, at *10 (D. Neb. Mar.
22, 2010) (affirming ALJ’s decision that claimant is not disabled as her alcoholism and
drug use are material contributing factors and holding “[d]espite [claimant’s] underlying
mental health problems, [she] remains able to abstain from abusing alcohol and drugs,
and she is able to take her medications as prescribed.”). Here, the ALJ found when
claimant was sober, even when she was noncompliant with medication, claimant was not
disabled. The evidence discussed above supports this. See e.g., (AR 407) (clinic note
from May 23, 2013, in which claimant self-reported that she was “not on any
psychotropic medications”). In the same clinic note (AR 408) claimant told the medical
professional that she was currently attending rummage sales and acquiring household
pets. The note described claimant as having fair judgment and insight, good eye contact,
pleasant mood, intact memory (AR 409). The ALJ found that the active symptomatology
of claimant’s mental impairments lessened significantly when claimant was sober.
Therefore, the Court finds that the record as a whole supports both the ALJ’s
determination that claimant’s substance abuse (in partial remission since April 2015) is a
material contributing factor to her disability and that without such drug abuse claimant’s
RFC assessment makes her not disabled.
C.

The Court is unpersuaded by claimant’s citation to Rhines v. Harris

Claimant contends that the underlying rationale of Rhines v. Harris, 634 F.2d
1076, 1079 (8th Cir. 1980) applies here. Claimant cites Rhines for the proposition that
some claimants with impairments may not be realistically employable, as employers are
concerned with “substantial capacity, psychological stability, and steady attendance.”
(Doc. 17, at 6) (citing Rhines, 634 F.2d at 1079 (quoting Thomas v. Celebrezze, 331
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F.2d 541, 546 (4th Cir. 1964)). Also claimant quotes “[employers] will not unduly risk
increasing their health and liability insurance.” The Commissioner did not explicitly
address this argument.
In Rhines, the court concluded that the ALJ erred in concluding that employment
realistically existed for claimant Ms. Eloise Rhines in the economy. Rhines, 634 F.2 at
1079. The court found that Ms. Rhines had the following: an eighth-grade education;
reading ability on a fifth-grade, nine month level; past work as an assembly worker and
maid; injury to spine; severe and recurrent pain in arms, right foot, shoulders, back (takes
pain medication and muscle relaxants regularly, attends physical therapy once a week);
severe psychological handicaps.” Id. Evidence on the record characterized Ms. Rhines
as a “multiply [sic] handicapped person” who was “borderline retarded” with “limited
occupational alternatives.” Id. at 1078.
The Court is unpersuaded by this citation. The facts here are distinguishable. Ms.
Rhine had a very limited education and was characterized as borderline-retarded.
Claimant, however, even attended one year of college and never attended special
education classes. (AR 198). Although claimant testified to a gambling problem and
that her daughter helps her manage her finances, nonetheless claimant engages in hobbies,
spends time with grandchildren, drives and shops by herself, spent years taking care of
own mother (preceding the relevant time period), engages in relationships, and is of fair
insight and judgment with intact recent and remote memory. Unlike in Rhines, there is
no indication of any severe intellectual-limitations of claimant on the record before the
Court. Under the ALJ’s RFC assessment, claimant is able to work in several jobs that
exist in significant numbers in the national economy. In general, courts will not disturb
the ALJ’s decision if it falls within the ALJ’s available “zone of choice.” Hacker v.
Barnhart, 459 F.3d 934, 936 (8th Cir. 2006) (quoting Culbertson, 30 F.3d at 939). A
decision does not fall out of the zone of choice merely because the court, had it served
as the initial fact finder, would have reached a different decision on the facts; instead, as
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long as the ALJ’s decision is supported by “substantial evidence” in the record it falls
within the ALJ’s “zone of choice.” Hacker, 459 F.3d at 936 (quoting Holley, 253 F.3d
at 1091). Here the substantial evidence on the record as a whole supports the ALJ’s
finding that the claimant is employable and not disabled.
VI.

CONCLUSION

After a thorough review of the entire record, the Court concludes that substantial
evidence in the record as a whole supports the ALJ’s decision to find claimant was not
disabled. Accordingly, the Court affirms the decision of the ALJ. Judgment shall be
entered in favor of the Commissioner and against claimant.
IT IS SO ORDERED this 13th day of February, 2017.

__________________________________
C.J. Williams
Chief United States Magistrate Judge
Northern District of Iowa

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