Gomez v. Social Security Administration

Filing 28

Proposed Findings and Recommended Disposition by Magistrate Judge Carmen E. Garza. The Court RECOMMENDS that 23 Plaintiff's MOTION to Remand to Agency be GRANTED IN PART as outlined in the PF&RD. Objections to PF&RD due by 8/28/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RUBEN AUGUSTINE GOMEZ,
Plaintiff,
v.

No. CV 16-959 WJ/CG

NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Administration,
Defendant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Plaintiff Ruben Augustine Gomez’ Motion
to Reverse and Remand for Payment of Benefits or in the Alternative, for Rehearing,
With Supporting Memorandum (the “Motion”), (Doc. 23), filed April 19, 2017; Defendant
Commissioner Nancy A. Berryhill’s Brief in Response to Plaintiff’s Motion to Reverse
and Remand the Agency’s Administrative Decision (the “Response”), (Doc. 25), filed
June 13, 2017; and Mr. Gomez’ Reply to Brief in Response to Motion to Reverse and
Remand (the “Reply”), (Doc. 26), filed July 6, 2017. United States District Judge William
P. Johnson referred this case to Magistrate Judge Carmen E. Garza to perform legal
analysis and recommend an ultimate disposition. (Doc. 19).
Mr. Gomez filed applications for disability insurance benefits and supplemental
security income on January 26, 2012, alleging disability beginning January 1, 2009.
(Administrative Record “AR” 17). Mr. Gomez claimed he was limited in his ability to work
due to “back problems,” “leg problems,” and “right side pain.” (AR 220). Mr. Gomez’
applications were denied initially on August 17, 2012, and upon reconsideration on June
11, 2013. (AR 17). Mr. Gomez requested a hearing before an Administrative Law Judge

(“ALJ”), which was held on January 5, 2015, before ALJ John R. Morris. (AR 33). Mr.
Gomez and Judith Beard, an impartial vocational expert (“VE”), testified at the hearing,
(AR 35-61), and Mr. Gomez was represented by Andrew S. Youngman, a non-attorney
representative, (AR 17).
On February 25, 2015, ALJ Morris issued his decision, finding Mr. Gomez not
disabled at any time between his alleged disability onset date through the date of the
decision. (AR 27). Mr. Gomez requested review by the Appeals Council, (AR 12-13),
which was denied, (AR 1-4), making the ALJ’s decision the Commissioner’s final
decision for purposes of this appeal.
Mr. Gomez now argues that the ALJ erred by: (1) finding that Mr. Gomez could
work if he abstained from substance abuse; (2) failing to properly determine Mr. Gomez’
residual functional capacity (“RFC”); and (3) improperly relying on the VE’s testimony at
step five. (Doc. 23 at 4-23). The Court has reviewed the Motion, the Response, the
Reply, and the relevant law. Additionally, the Court has meticulously reviewed the
administrative record. Because the Court finds that the ALJ erred in his determination
that Mr. Gomez’ substance abuse is a contributing factor material to the determination
of disability, the Court recommends that Mr. Gomez’ Motion be GRANTED IN PART.
I.

Standard of Review
The standard of review in a Social Security appeal is whether the

Commissioner’s final decision is supported by substantial evidence and whether the
correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir.
2008); Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir.
1992). If substantial evidence supports the Commissioner’s findings and the correct

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legal standards were applied, the Commissioner’s decision stands and the plaintiff is not
entitled to relief. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760
(10th Cir. 2003). The Commissioner’s “failure to apply the correct legal standards, or
show . . . that she has done so, are grounds for reversal.” Winfrey v. Chater, 92 F.3d
1017, 1019 (10th Cir. 1996) (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th
Cir. 1994)). A court should meticulously review the entire record but should neither reweigh the evidence nor substitute its judgment for the Commissioner’s. Langley,
373 F.3d at 1118; Hamlin, 365 F.3d at 1214. A court’s review is limited to the
Commissioner’s final decision, 42 U.S.C. § 405(g), which is generally the ALJ’s
decision, rather than the Appeals Council’s denial of review. O’Dell v. Shalala, 44 F.3d
855, 858 (10th Cir. 1994).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365
F.3d at 1214; Doyal, 331 F.3d at 760. An ALJ’s decision “is not based on substantial
evidence if it is overwhelmed by other evidence in the record or if there is a mere
scintilla of evidence supporting” it. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.
While the Court may not re-weigh the evidence or try the issues de novo, its
examination of the record must include “anything that may undercut or detract from the
ALJ’s findings in order to determine if the substantiality test has been met.” Grogan v.
Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “The possibility of drawing two
inconsistent conclusions from the evidence does not prevent [the ALJ]’s findings from

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being supported by substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
II.

Applicable Law and Sequential Evaluation Process

For purposes of disability insurance benefits and supplemental security income,
a claimant establishes a disability when she is unable “to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A) (2015), 42
U.S.C. § 1382c(a)(3)(A) (2004); 20 C.F.R. §§ 404.1505(a), 416.905(a) (2012). In order
to determine whether a claimant is disabled, the Commissioner follows a five-step
sequential evaluation process (“SEP”). Bowen v. Yuckert, 482 U.S. 137, 140 (1987);
20 C.F.R. §§ 404.1520, 416.920 (2012).
At the first four steps of the SEP, the claimant bears the burden of showing: (1)
she is not engaged in “substantial gainful activity”; (2) she has a “severe medically
determinable . . . impairment . . . or a combination of impairments” that has lasted or is
expected to last for at least one year; and either (3) her impairment(s) either meet or
equal one of the “Listings”1 of presumptively disabling impairments; or (4) she is unable
to perform her “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(iiv); see Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the ALJ
determines the claimant cannot engage in past relevant work, the ALJ will proceed to
step five of the evaluation process. At step five the Commissioner must show the
claimant is able to perform other work in the national economy, considering the
claimant’s RFC, age, education, and work experience. Grogan, 399 F.3d at 1261.
1

20 C.F.R. pt. 404, subpt. P, app. 1.

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III.

Background

Mr. Gomez applied for disability insurance benefits and supplemental security
income due to back and leg problems and pain on his right side. (AR 220). At step one,
the ALJ determined that Mr. Gomez had not engaged in substantial gainful activity since
January 1, 2009, the alleged onset date. (AR 20). At step two, the ALJ concluded that
Mr. Gomez has the following severe impairments: degenerative disc disease of the
lumbar spine; degenerative joint disease of the right hip; post-traumatic stress disorder
(“PTSD”); anxiety; depression; alcohol abuse; and a history of polysubstance abuse. Id.
At step three, the ALJ determined that Mr. Gomez’ mental impairments, including
the substance abuse disorders, meet Listings 12.04 and 12.09 of 20 C.F.R. §§
404.1520(d) and 416.920(d). Id. The ALJ stated that he found Mr. Gomez credible
concerning his limitations with memory, concentration, and social interactions, and
regarding his multiple inpatient hospitalizations. (AR 21). The ALJ noted that Mr.
Gomez’ claims regarding his limitations are supported by treatment records and
progress notes from Presbyterian Hospital, the University of New Mexico Hospital, and
Kaseman Presbyterian Hospital, and with the findings of the consulting psychological
examiner, Louis Wynne, Ph.D. Id. (citing AR 623-26). The ALJ noted that there is no
treating physician opinion in the record, and that the State Agency medical and
psychological consultants opined that Mr. Gomez was capable of simple, unskilled light
work. Id. The ALJ stated that he gave Dr. Wynne’s opinion significant weight because it
is consistent with the objective signs and findings and is supported by treatment records
from treating physicians at EPOCH Behavioral Health. (AR 22) (citing AR 1103-12).

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Having found that Mr. Gomez’ impairments met Listings 12.04 and 12.09, the
ALJ next considered whether, if Mr. Gomez stopped the substance abuse, he would still
have an impairment or combination of impairments that meets or medically equals any
of the listed impairments. Id. The ALJ reasoned that, if Mr. Gomez stopped the
substance abuse, he would have only moderate restrictions in social functioning,
concentration, persistence, and pace, and would experience no episodes of
decompensation. (AR 22-23). Therefore, the ALJ found that, absent the substance
abuse, Mr. Gomez would not have an impairment or combination of impairments that
meets or medically equals any of the impairments listed in 20 C.F.R. §§ 404.1520(d)
and 416.920(d). Id.
Proceeding to step four, the ALJ found that if Mr. Gomez stopped the substance
abuse, he would have the RFC to perform sedentary work as defined in 20 C.F.R. §§
404.1567(a) and 416.967(a), except that he would be limited to simple, unskilled jobs.
(AR 23). In formulating Mr. Gomez’ RFC, the ALJ stated that he considered Mr. Gomez’
symptoms and the extent to which these symptoms can reasonably be accepted as
consistent with objective medical and other evidence, as required by 20 C.F.R. §§
404.1529 and 416.929, and SSRs 96-4p and 96-7p. (AR 14). The ALJ stated that he
also considered opinion evidence in accordance with 20 C.F.R. §§ 404.1527 and
416.927 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p. Id.
The ALJ noted that Mr. Gomez’ most recent medical records, dated November
26, 2014, document that he was drinking at least six drinks a day, and that Mr. Gomez
needed a hip replacement but the surgery had not been accomplished due to his poor
liver function and continued substance abuse. (AR 24). The ALJ further noted that an

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examining doctor indicated on October 27, 2014 that Mr. Gomez clearly has an alcohol
use disorder and was not interested in alcohol or substance abuse treatment. Id. Finally,
the ALJ considered the records from EPOCH Behavioral Healthcare, noting that on
November 24, 2014, Mr. Gomez’ counselor diagnosed Mr. Gomez with post-traumatic
stress disorder, generalized anxiety disorder, major depressive disorder, and binge
drinking. Id. The ALJ stated that the counselor “recommended continued medication
management but did not indicate any specific functional limitations associated with the
diagnoses.” Id.
The ALJ found that Mr. Gomez has some right hip and right leg pain, has
difficulty standing or walking for extended periods, and is limited to simple unskilled
work “due to his mental impairment.” Id. The ALJ further found that Mr. Gomez’
“symptoms are directly related to his continued use of alcohol.” (AR 25). In support of
this finding, the ALJ relied on records from multiple hospital visits documenting Mr.
Gomez’ substance abuse. Id. The ALJ concluded that, without the use of drugs and
alcohol, Mr. Gomez is capable of simple, unskilled, sedentary work. Id. The ALJ then
found that, if Mr. Gomez stopped the substance abuse, he would be unable to perform
any of his past relevant work. Id.
Having found that Mr. Gomez is unable to perform his past relevant work, the
ALJ proceeded to step five. The ALJ noted that Mr. Gomez was 37 years old on the
alleged disability onset date, and therefore classified as a “younger individual” in
accordance with the Regulations. Id. The ALJ also determined that Mr. Gomez has at
least a high school education and is able to communicate in English. Id. The ALJ noted
that the VE testified at the hearing that there are jobs that exist in the national economy

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that an individual could perform with Mr. Gomez’ same age, education, work
experience, and the RFC Mr. Gomez would have if he stopped the substance abuse.
(AR 26). Specifically, the VE testified that, given all of these factors, the individual could
perform the requirements of the jobs of jewelry preparer, semi-conductor loader, and
document preparer. Id. After finding the VE’s testimony to be consistent with the
Dictionary of Occupational Titles, the ALJ found that, if Mr. Gomez stopped the
substance abuse, he would be capable of performing work existing in significant
numbers in the national economy. (AR 26-27). The ALJ concluded that Mr. Gomez’
substance abuse disorder is a contributing factor material to the determination of
disability and, therefore, Mr. Gomez is not disabled pursuant to 20 C.F.R. §§
404.1520(g), 404.1535, 416.920(g), and 416.935. (AR 26).
IV.

Analysis

Mr. Gomez first contends that the ALJ erred in finding that his substance abuse
is material to the finding of disability. (Doc. 23 at 5-10). Specifically, Mr. Gomez argues
that the ALJ did not cite to evidence supporting a finding that his mental limitations are
directly related to his continued use of alcohol, and that evidence in the record instead
supports a finding that his mental limitations are linked to his PTSD, depression,
anxiety, and pain disorder. Id. In addition, Mr. Gomez contends that the ALJ erred in his
RFC determination because he failed to account for the limitations assessed by Dr.
Wynne and State agency doctors, Scott R. Walker, M.D. and Paul Cherry, Ph.D. Id. at
11-20. Finally, Mr. Gomez contends that the ALJ improperly relied on the VE’s
testimony because the ALJ did not include all of Mr. Gomez’ limitations in his questions

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to the VE, and that the ALJ failed to properly consider the requirements for the job of
document preparer. Id. at 21-23.
In response, the Commissioner argues that Mr. Gomez’ medical records
document that his limitations were directly related to his substance abuse, noting that
during a period of several months in 2012 when Mr. Gomez was abstaining from alcohol
he reported that his depression was controlled with Prozac. (Doc. 25 at 4-6). The
Commissioner further contends that the ALJ properly assessed Dr. Wynne’s opinion
because the occupations identified by the VE are consistent with the limitations found
by Dr. Wynne. Id. at 9-10. The Commissioner argues that the ALJ also properly
considered the opinions of Dr. Walker and Dr. Cherry because, even though in Section I
they assessed several limitations, their Section III narratives adequately accounted for
those limitations. Id. at 10-14. Additionally, the Commissioner argues that the ALJ did
not err in relying on the VE’s testimony and that the ALJ’s step-five findings are
supported by substantial evidence. Id. at 14-16.
In his Reply, Mr. Gomez maintains that the evidence in the record supports a
finding that his mental limitations are not related to his alcohol use, and states that,
during the period of abstinence in 2012, his mental symptoms were not controlled and
he was diagnosed with anxiety, depression and symptoms of PTSD. (Doc. 26 at 1-2).
Mr. Gomez also disputes the Commissioner’s contention that the limitations found by
Dr. Wynne, Dr. Walker, and Dr. Cherry are included in the RFC determination. Id. at 36. In addition, Mr. Gomez reiterates his contention that the ALJ erred in his reliance on
the VE’s testimony. Id. at 6-7.

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A. The ALJ’s Finding of Materiality Regarding Mr. Gomez’ Substance Abuse
The Social Security Act provides that “[a]n individual shall not be considered to
be disabled . . . if alcoholism or drug addiction would . . . be a contributing factor
material to the Commissioner’s determination that the individual is disabled.” 42 U.S.C.
§ 423(d)(2)(C). Thus, if an ALJ finds that the claimant is disabled and has medical
evidence of the claimant’s substance abuse, the ALJ “must determine whether [the
substance abuse] is a contributing factor material to the determination of disability.” 20
C.F.R. §§ 404.1535(a), 416.935(a). To determine whether substance abuse is a
contributing factor material to a determination of disability, the ALJ must determine
whether the claimant’s physical and mental limitations would improve to the point of
nondisability if the claimant refrained from drug or alcohol use. 20 C.F.R. §§ 404.1535,
416.935; SSR 13-2p, 2013 WL 621536, at *7. If the claimant’s limitations would not be
disabling absent drug or alcohol use, the claimant’s alcoholism or drug addiction is a
contributing factor material to a determination of disability and benefits will be denied.
20 C.F.R. §§ 404.1535(b)(2)(i), 416.935(b)(2)(i). If the claimant would still be considered
disabled due to his remaining limitations, the claimant’s alcoholism or drug addiction is
not a contributing factor material to a determination of disability and the claimant is
entitled to benefits. 20 C.F.R. §§ 404.1535(b)(2)(ii), 416.935(b)(2)(ii).
In Salazar v. Barnhart, 468 F.3d 615, 623 (10th Cir. 2006), the Tenth Circuit
discussed how to make a materiality determination when mental impairments are
involved. The opinion refers to a teletype issued by the Commissioner pertaining to
“situations where a claimant has one or more other mental impairments in addition to
[drug and alcohol addiction.]” Id. The teletype “stresses the need for careful examination

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of periods of abstinence and also directs that if the effects of a claimant’s mental
impairments cannot be separated from the effects of substance abuse, the [drug and
alcohol addiction] is not a contributing factor material to the disability determination.” Id.
The teletype also states that “[t]he most useful evidence that might be obtained in such
cases is that relating to a period when the individual was not using drugs/alcohol.” Id.
When evaluating this type of evidence, the ALJ must consider “the length of the period
of abstinence, how recently it occurred, and whether there may have been any increase
in the limitations and restrictions imposed by the other mental impairments since the last
period of abstinence.” Id.; see also SSR 13-2p, 2013 WL 621536, at *9 and *12.
Further, the report of a medical or psychological consultant could be the basis for
a conclusion that drug and alcohol addiction is material to the determination that a
claimant is disabled if two conditions are met. First, the consultant must separate the
effects of the mental impairments from those of substance abuse; and second, the
consultant must project what limitations would remain if the claimant stopped using
drugs or alcohol. Salazar, 468 F.3d at 623-24. However, where the record is devoid of
any medical or psychological report or opinion as to the claimant’s remaining limitations
if he stopped using drugs or alcohol, an ALJ should “find that [drug and alcohol
addiction] is not a contributing factor material to the determination of disability.” Id. at
624.
Here, the ALJ found at step three that Mr. Gomez’ mental impairments meet the
criteria for Listings 12.04 (Affective Disorders) and 12.09 (Substance Addiction
Disorders).2 (AR 20). When a claimant has a severe impairment that meets or equals

2

Unlike other mental disorder listings, 12.09 “is structured as a reference listing; . . . it . . . only serve[s] to
indicate which of the other listed mental or physical impairments must be used to evaluate the behavioral

11

one of the listed impairments, the ALJ must find that the claimant is disabled. See
Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988) (“If the impairment is listed and
thus conclusively presumed to be disabling, the claimant is entitled to benefits. If not,
the evaluation proceeds to the fourth step.”). However, instead of finding Mr. Gomez
disabled, the ALJ found that Mr. Gomez’ substance abuse was material to the finding of
disability because, absent the substance use, Mr. Gomez would no longer meet the
paragraph A, B, and C criteria for these listings. (AR 21-23). The ALJ proceeded to step
four, where the ALJ concluded that, if Mr. Gomez stopped the substance abuse, he
would have the RFC to perform sedentary work with a limitation to simple, unskilled
jobs, and that this RFC provides a significant number of jobs in the national economy
that Mr. Gomez could perform. (AR 23, 26). In finding that Mr. Gomez would not be
disabled if he stopped the substance abuse, the ALJ relied on medical records from
multiple emergency room visits documenting symptoms of alcohol intoxication or
alcohol withdrawal, including a note stating Mr. Gomez was not interested in any type of
alcohol treatment program. (AR 25). The ALJ states that these records “clearly
document that [Mr. Gomez’] limitations are directly related to his continued use of
alcohol and marijuana and he is not interested in an alcohol treatment program.” Id.
In determining whether Mr. Gomez’ substance abuse is material to the
determination of disability, the ALJ did not state whether he considered evidence from a
time period when Mr. Gomez was not using drugs or alcohol. The hospital records upon
which the ALJ relied document Mr. Gomez’ alcohol use, but do not provide evidence

or physical changes resulting from regular use of addictive substances.” 20 C.F.R. pt. 404, subpt. P, app.
1. § 12.00(A). “Under this listing, a claimant’s impairment due to substance addiction disorder is per se
disabling when the requirements of one or more of Listings 12.02, 12.04, 12.06, 12.08, 11.14, 5.00, 5.05,
5.08, 11.02, or 11.03 are satisfied.” Id. at § 12.09.

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regarding Mr. Gomez’ functioning when he is not using alcohol or drugs. See Salazar,
468 F.3d at 623 (explaining that “[t]he most useful evidence that might be obtained in . .
. cases [involving substance abuse] is that relating to a period when the individual was
not using drugs/alcohol”). The ALJ also did not delineate any periods of abstinence or
whether there may have been any increase in the limitations and restrictions imposed
by Mr. Gomez’ other mental impairments since his last period of abstinence. See id.
In her response, the Commissioner attempts to supply evidence from a period of
abstinence, noting that for several months in 2012 Mr. Gomez abstained from alcohol
and reported that his depression was controlled with Prozac. See (Doc. 25) at 5-6 (citing
AR 587, 654-67). However, the ALJ did not rely on this evidence in finding that Mr.
Gomez’ substance abuse was material to the finding of disability, so this is an improper
post hoc rationalization by the Commissioner. See Carpenter v. Astrue, 537 F.3d 1264,
1267 (10th Cir. 2008) (“Judicial review is limited to the reasons stated in the ALJ’s
decision.”). Moreover, neither the ALJ nor the Commissioner address evidence that
during this same time period Mr. Gomez was diagnosed with anxiety, depression, and
symptoms of PTSD. See AR 540-41. See Carpenter v. Astrue, 537 F.3d 1264, 1265
(10th Cir. 2008) (an ALJ may not “pick and choose among medical reports, using
portions of evidence favorable to his position while ignoring other evidence”).
In addition to failing to consider evidence from a sustained period of abstention
from substance abuse, the ALJ also failed to state whether the record contained any
medical evidence as to Mr. Gomez’ remaining limitations if he stopped using drugs or
alcohol. The Court, therefore, finds that the ALJ failed to properly support his finding
that Mr. Gomez’ substance abuse was material to the determination of disability

13

because he did not rely on evidence showing that Mr. Gomez’ co-occurring mental
disorders would improve to the point of nondisability in the absence of the substance
abuse. See SSR 13-2p, 2013 WL 621536, at *7 (the ALJ should find that a claimant’s
substance abuse is not material “if the record is fully developed and the evidence does
not establish that the claimant’s co-occurring mental disorder(s) would improve to the
point of nondisability in the absence of [the substance abuse]”); see also Salazar, 468
F.3d at 623 (“[I]f the effects of a claimant’s mental impairments cannot be separated
from the effects of substance abuse, the [drug and alcohol addiction] is not a
contributing factor material to the disability determination.”); Zemp-Bacher v. Astrue,
477 Fed. Appx. 492, 495 (10th Cir. 2012) (unpublished) (finding that the claimant’s
testimony that she was doing better since starting counseling and medication, and
treatment notes indicating some improvement, did not amount to sufficient evidentiary
support for a finding of materiality, stating “no reasonable mind could find the vague bits
of evidence noting some improvement enough to support a conclusion that [the
claimant] would not be disabled in [the] absence of addiction”). The Court recommends
that this case be remanded for further consideration of the effect, if any, of Mr. Gomez’
substance abuse on his impairments, in accordance with 20 C.F.R. §§ 404.1535,
416.935, SSR 13-2p, and Salazar.
B. Request for Immediate Award of Benefits
In his Motion, Mr. Gomez makes a cursory request for an immediate award of
benefits. (Doc. 23 at 24). Mr. Gomez fails to provide any support for this request, and
the Court finds that additional fact-finding would be useful in this case. See Salazar, 468
F.3d at 626 (when determining whether to remand for an immediate award of benefits,

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courts may, among other factors, consider whether remand for additional fact-finding
would be useful). The Court, therefore, recommends denying this request.
V.

Recommendation

For the reasons stated above, the Court finds that the ALJ failed to properly
consider whether Mr. Gomez’ substance abuse is a contributing factor material to the
determination of disability. The Court does not address Mr. Gomez’ claims that the ALJ
erred in his RFC determination and at step five because those claims may become
moot upon remand.
IT IS THEREFORE RECOMMENDED that Mr. Gomez’ Motion to Reverse and
Remand for Payment of Benefits or in the Alternative, for Rehearing, With Supporting
Memorandum (the “Motion”), (Doc. 23), be GRANTED IN PART, and that this case be
REMANDED to the Commissioner for further proceedings.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A
party must file any objections with the Clerk of the District Court within the
fourteen-day period if that party wants to have appellate review of the proposed
findings and recommended disposition. If no objections are filed, no appellate
review will be allowed.

________________________________
THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE

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