Romero v. Colvin

Filing 19

ORDER AFFIRMING THE COMMISSIONER'S DECISION. Signed on 8/11/17 by Chief District Judge Greg Kays. (Strodtman, Tracy)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
MISTY ROMERO,
O/B/O RICARDO ROMERO
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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No. 3:15-CV-05126-DGK-SSA

ORDER AFFIRMING THE COMMISSIONER’S DECISION
This action seeks judicial review of the Acting Commissioner of Social Security’s (“the
Commissioner”) decision denying Plaintiff Ricardo Romero’s1 applications for Social Security
disability insurance benefits under Title II of the Social Security Act (“the Act”), 42 U.S.C.
§§ 401–434, and Supplemental Security Income under Title XVI of the Act, 42 U.S.C. §§ 1381–
1383f. The Administrative Law Judge (“ALJ”) found Plaintiff had several severe impairments
including degenerative joint disease, bilateral shoulder arthritis, bipolor affective disorder,
anxiety, and a history of alcohol abuse, but retained the residual functional capacity (“RFC”) to
perform a range of sedentary work. The ALJ also found that if Plaintiff was not abusing alcohol,
his impairments would not preclude him from performing work that exists in significant numbers
in the national economy, including work as a general assembler, table worker, and sealer.
Hence, Plaintiff’s substance abuse was a contributing factor material to the determination of
disability, and Plaintiff was not disabled.

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Plaintiff passed following the ALJ’s most recent decision. Though his widow, Misty Romero, has been substituted
as plaintiff, the Court refers to the deceased as Plaintiff throughout the brief.

After carefully reviewing the record and the parties’ arguments, the Court finds the ALJ’s
opinion is supported by substantial evidence on the record as a whole. The Commissioner’s
decision is AFFIRMED.
Procedural and Factual Background
The complete facts and arguments are presented in the parties’ briefs and are repeated
here only to the extent necessary.
Plaintiff filed his applications on September 5, 2008, alleging a disability onset date of
July 25, 2008. The Commissioner denied the applications at the initial claim level, and Plaintiff
appealed the denial to an ALJ. The ALJ held a hearing, and on July 16, 2010, issued a decision
finding Plaintiff was not disabled. After the Appeals Council denied Plaintiff’s request for
review, Plaintiff appealed to the United States District Court. At Defendant’s request, the Court
remanded the case for additional consideration.
On July 23, 2012, the Appeals Council directed the ALJ to re-examine the decision that
Plaintiff could perform his past work. On November 21, 2013, after holding a second hearing,
the ALJ found Plaintiff was not disabled. The ALJ found there were no jobs existing in
significant numbers in the national economy that Plaintiff could currently perform, but absent his
substance abuse, he would be able to perform some sedentary work.
Plaintiff then filed another request for review with the Appeals Council. While this
appeal was pending, Plaintiff passed away. The Appeals Council denied Plaintiff’s request for
review on November 10, 2015, leaving the ALJ’s decision as the Commissioner’s final decision.
Plaintiff has exhausted all administrative remedies and judicial review is now appropriate under
42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3).

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Standard of Review
A federal court’s review of the Commissioner’s decision to deny disability benefits is
limited to determining whether the Commissioner’s findings are supported by substantial
evidence on the record as a whole. Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016).
Substantial evidence is less than a preponderance, but is enough evidence that a reasonable mind
would find it sufficient to support the Commissioner’s decision. Id. In making this assessment,
the court considers evidence that detracts from the Commissioner’s decision, as well as evidence
that supports it.

Id. The court must “defer heavily” to the Commissioner’s findings and

conclusions. Wright v. Colvin, 789 F.3d 847, 852 (8th Cir. 2015). The court may reverse the
Commissioner’s decision only if it falls outside of the available zone of choice; a decision is not
outside this zone simply because the evidence also points to an alternate outcome. Buckner v.
Astrue, 646 F.3d 549, 556 (8th Cir. 2011).
Discussion
The Commissioner follows a five-step sequential evaluation process2 to determine
whether a claimant is disabled, that is, unable to engage in any substantial gainful activity by
reason of a medically determinable impairment that has lasted or can be expected to last for a
continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A). Plaintiff argues the ALJ

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“The five-step sequence involves determining whether (1) a claimant’s work activity, if any, amounts to substantial
gainful activity; (2) his impairments, alone or combined, are medically severe; (3) his severe impairments meet or
medically equal a listed impairment; (4) his residual functional capacity precludes his past relevant work; and (5) his
residual functional capacity permits an adjustment to any other work. The evaluation process ends if a
determination of disabled or not disabled can be made at any step.” Kemp ex rel. Kemp v. Colvin, 743 F.3d 630, 632
n.1 (8th Cir. 2014); see 20 C.F.R. §§ 404.1520(a)–(g); 416.920(a)-(g). Through Step Four of the analysis the
claimant bears the burden of showing that he is disabled. After the analysis reaches Step Five, the burden shifts to
the Commissioner to show that there are other jobs in the economy that the claimant can perform. King v. Astrue,
564 F.3d 978, 979 n.2 (8th Cir. 2009).

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erred: (1) in finding his substance abuse was material; and (2) in failing to support the RFC
determination with substantial evidence. Both arguments are unavailing.
I.

The ALJ did not err in finding Plaintiff’s substance abuse was a contributing factor
material to his disability.
Plaintiff argues the case should be remanded because the ALJ’s conclusion that

Plaintiff’s alcohol abuse was a contributing factor material to his finding of disability is not
supported by substantial evidence.

Plaintiff argues the ALJ erred by finding that Plaintiff’s

alcoholism was not in remission and for giving little weight to the opinions of his treating
doctors that he suffered from moderate to extreme limitations even after excluding any
limitations resulting from alcoholism.
In determining whether a claimant’s alcohol abuse is a contributing factor to a
determination of disability, the ALJ must first make a determination based on the five-step
approach without segregating out any effects that might be due to substance abuse.
Brueggemann v. Barnhart, 348 F.3d 689, 694 (8th Cir. 2003). If the claimant’s total limitations,
including those from the effects of substance abuse disorders, indicate he or she is disabled, then
the ALJ must determine which limitations remain after the effects of the substance abuse
disorders are removed. Id. at 694-95. If after conducting this analysis the ALJ cannot tell
whether the claimant’s substance abuse is a contributing factor, then the ALJ must award
benefits. Id. at 695.
There is substantial evidence on the record here supporting the ALJ’s determination that
Plaintiff could perform the full range of simple work absent any substance abuse. At the outset,
the Court notes the ALJ’s analysis of Plaintiff’s limitations absent substance abuse is thoughtful
and detailed; the eight page discussion comprises more than a third of the twenty-page decision.

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R. at 467-75. And while a long opinion is not necessarily well-supported or well-reasoned, this
one is.
Among other things, the ALJ discussed test results from a consultative psychological
examination from June of 2008, when Plaintiff was not abusing alcohol, which indicated that his
mental performance was quite good. R. at 272, 471. This supports the ALJ’s decision.
The ALJ also gave good reasons for not crediting treating physicians’ opinions that
Plaintiff had disabling mental limitations even without his substance abuse. These medical
providers based their opinions on observations made when they believed Plaintiff’s alcoholism
was in remission. The ALJ discredited these opinions because evidence in the record indicated
Plaintiff’s alcoholism was not, in fact, in remission during at least some of these periods. R. at
474. For example, in October of 2012, Plaintiff either told or left his treating psychiatrist, Dr.
Paul Dobard, M.D., with the impression that his alcohol abuse had been in sustained remission
for sixteen years, albeit with a recent relapse which resulted in a DWI. But evidence on the
record shows that at times during these sixteen years Plaintiff drank excessively. On August 14,
2011, Plaintiff went to the emergency room due to being cut in the arm with a knife from behind.
R. at 853. He reported that after he was cut, but before he went to the emergency room, he drank
some beer. R. at 853. He also reported drinking 12 cans of beer a week. R. at 853. He returned
to the emergency room a month later because he was vomiting blood due to what was diagnosed
as acute alcohol intoxication. R. at 863, 866, 868. At that time, he reported drinking 48 cans of
beer a week. R. at 864. These episodes suggest his alcoholism was not in remission as his
treating providers believed when formulating their opinions. Thus, the ALJ did not err in
discrediting their opinions, or in finding Plaintiff’s substance abuse was a material factor
contributing to his disability.

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II.

The ALJ’s RFC determination is supported by substantial evidence.
Plaintiff also argues the ALJ’s RFC determination is not supported by substantial

evidence because it should have included moderate restrictions on concentration, persistence,
and pace.

Plaintiff observes that in the process of determining whether Plaintiff’s mental

impairments met or equaled a listing at Step Three of the sequential evaluation process, the ALJ
determined that Plaintiff had moderate difficulties with concentration, persistence, or pace. R. at
466.
As the ALJ noted, the findings at Step Three are not a residual functional capacity and
are used only to rate the severity of a claimant’s mental impairments. R. at 467. Further, a
limitation to simple, routine, repetitive work which does not require close attention to detail
sufficiently accounts for a claimant’s moderate deficiencies in concentration, persistence, or
pace. See Brachtel v. Apfel, 132 F.3d 417, 421 (8th Cir. 1997). Here, the ALJ found Plaintiff
was limited to only occasional contact with coworkers and supervisors.

R. at 467.

This

limitation not only accounts for his deficiencies in social interaction but also limits distractions
which would interfere with his concentration. The ALJ also found that Plaintiff could not
respond appropriately to usual work situations in a routine work setting that involve highly
complex instructions or tasks such as analyzing multiple factors to make a decision. R. at 467.
This finding is more specific and detailed than the “simple routine repetitive work which does
not require close attention to detail” that the Eighth Circuit sanctioned in Brachtel. And by
eliminating “highly complex instructions,” the ALJ accounted for any concentration difficulties.
Finally, by eliminating tasks that require analyzing multiple factors to make a decision, the ALJ
accounted for the possibility that Plaintiff might lose pace or persistence with more complex
tasks.

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In sum, the ALJ sufficiently accounted for Plaintiff’s moderate limitations in
concentration, persistence, or pace, and so the RFC determination is supported by substantial
evidence.
Conclusion
For the reasons discussed above, the Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
Date:

August 11, 2017

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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