Lee v. Social Security Administration

Filing 23

MEMORANDUM OPINION AND ORDER by Magistrate Judge Jerry H. Ritter denying 18 Motion to Remand to Agency (mlt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
GABRIEL LEE,
Plaintiff,
v.

CIV 18-0243 JHR

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

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Plaintiff Gabriel Lee’s Motion to Reverse and
Remand for a Rehearing with Supporting Memorandum [Doc. 18], filed August 3, 2018. Pursuant
to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b), the parties have consented to the
undersigned Magistrate Judge to conduct dispositive proceedings in this matter and enter final
judgment. [Docs. 5, 7, 8]. Having reviewed the parties’ submissions, the relevant law, and the
relevant portions of the Administrative Record, 1 the Court will deny Mr. Lee’s Motion.
I.

INTRODUCTION
This Court’s institutional role in a social security appeal is specific and narrow. This Court

must affirm the decision of the Acting Commissioner where it is shown to be supported by
substantial evidence and is free from harmful legal error. Mr. Lee argues that the administrative
law judge (“ALJ”) who denied his claim failed to meet these deferential standards by improperly
weighing his treating psychologist’s opinion, failing to incorporate moderate limitations found by
the Administration’s non-examining physician into his residual functional capacity (“RFC”), and

1

Documents 14 through 14-10 comprise the sealed Administrative Record (“AR”). The Court cites the Record’s
internal pagination, rather than CM/ECF document and page number.

1

declining to conduct a drug addiction and alcoholism (“DAA”) assessment after concluding that
Mr. Lee is not disabled despite his alcoholism. [See Doc. 18, p. 2]. The Court, however, finds that
substantial evidence supports the ALJ’s decision to only afford “some weight” to Mr. Lee’s
treating psychologist, and that Mr. Lee’s alternative arguments for reversal are foreclosed by
binding case law. Therefore, the decision of the Acting Commissioner must be affirmed.
II.

PROCEDURAL HISTORY
Mr. Lee filed applications for disability insurance benefits and supplemental security

income under Titles II and XVI of the Social Security Act on November 9 and 10, 2015. AR at
215-222. Mr. Lee alleged a disability onset date of July 21, 2014, due to Posttraumatic Stress
Disorder; Major Depressive Disorder; Traumatic Brain Injury; Anxiety; Chronic Headaches; and,
“painful tingling in arms and hands.” AR at 255. The Administration denied Mr. Lee’s claims
initially and upon reconsideration, and he requested a de novo hearing before an ALJ. AR at 79158.
ALJ Michael Leppala held a hearing on July 11, 2017, at which Mr. Lee and a Vocational
Expert (“VE”) testified. AR at 30-78. Thereafter, the ALJ issued an unfavorable decision on
November 16, 2017. AR at 10-29. Mr. Lee requested review of the ALJ’s decision by the Appeals
Council, but on January 13, 2018, the Council denied his request for review. AR at 1-5. As such,
the ALJ’s decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d
758, 759 (10th Cir. 2003). This Court now has jurisdiction to review the decision pursuant to 42
U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).
A claimant seeking disability benefits must establish that he is unable “to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for a

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continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20
C.F.R. §§ 404.1505(a), 416.905(a). The Commissioner must use a five-step sequential evaluation
process to determine eligibility for benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 2
At Step One of the sequential evaluation process, the ALJ found that Mr. Lee has not
engaged in substantial gainful activity since his alleged onset date. AR at 16. At Step Two, he
determined that Mr. Lee has the following severe impairments: affective disorder, anxiety disorder
and alcohol addiction disorder. AR at 16. At Step Three, the ALJ concluded that Mr. Lee’s
impairments do not meet or medically equal the regulatory “listings.” AR at 17-18. Mr. Lee does
not challenge these findings on appeal.
When a claimant does not meet a listed impairment, the ALJ must determine his residual
functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). “RFC is not the least an
individual can do despite his or her limitations or restrictions, but the most.” SSR 96-8p, 1996 WL
374184, at *1. In this case, the ALJ determined that Mr. Lee retains the RFC to:
perform a full range of work at all exertional levels but with the following nonexertional limitations: can understand, carry out, and remember simple instructions
and make commensurate work-related decisions, respond appropriately to
supervision, coworkers, and work situations, deal with routine changes in work
setting, maintain concentration, persistence, and pace for up to and including two
hours at a time with normal breaks throughout a normal workday. He is limited to
superficial interaction with coworkers, supervisors, and the general public.

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The Tenth Circuit summarized these steps in Allman v. Colvin, 813 F.3d 1326, 1333 n.1 (10th Cir. 2016):
At step one, the ALJ must determine whether a claimant presently is engaged in a substantially
gainful activity. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). If not, the ALJ then decides
whether the claimant has a medically severe impairment at step two. Id. If so, at step three, the ALJ
determines whether the impairment is “equivalent to a condition ‘listed in the appendix of the
relevant disability regulation.’” Id. (quoting Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir.
2004)). Absent a match in the listings, the ALJ must decide at step four whether the claimant's
impairment prevents him from performing his past relevant work. Id. Even if so, the ALJ must
determine at step five whether the claimant has the RFC to “perform other work in the national
economy.” Id.

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AR at 18. Employing this RFC at Steps Four and Five, and relying on the testimony of the VE, the
ALJ determined that Mr. Lee can return to his past relevant work as a line cook and dishwasher,
precluding benefits at Step Four. AR at 22. However, the ALJ also determined that there are other
jobs that exist in significant numbers in the national economy that Mr. Lee can perform, precluding
benefits at Step Five. AR at 23. Specifically, the ALJ determined that Mr. Lee retains the capacity
to work as a machine cleaner and landscape specialist. AR at 23. Accordingly, the ALJ found that
Mr. Lee is not disabled as defined in the Social Security Act, and denied benefits. AR at 24.
III.

LEGAL STANDARDS
This Court “review[s] the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence and whether the correct legal standards were
applied.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739 F.3d
569, 571 (10th Cir. 2014)). “[I]n making this determination, [this Court] cannot reweigh the
evidence or substitute [its] judgment for the administrative law judge’s.” Smith v. Colvin, 821 F.3d
1264, 1266 (10th Cir. 2016). The Court must exercise “common sense” when determining whether
the substantial evidence standard has been met; if the Court can follow the ALJ’s reasoning, the
decision must stand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The standard
for a decision to be supported by substantial evidence is low. “‘Substantial evidence’ means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Howard
v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004). “It requires more than a scintilla, but less than a
preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

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IV.

ANALYSIS
Mr. Lee argues that the ALJ should have given greater weight to the opinions of his treating

psychologist, Gabriel Longhi, Psy.D. [Doc. 18, p. 2]. Mr. Lee also argues that the ALJ erred by
improperly picking and choosing among the moderate limitations found by non-examining
consultant Scott Walker, M.D. Finally, Mr. Lee argues that the ALJ was required to conduct a
DAA evaluation in his case, and failed to do so. The Court disagrees.
A. Substantial evidence supports the ALJ’s decision to only give “some weight” to
Dr. Longhi’s opinions.
Under law, “[i]t is the ALJ’s duty to give consideration to all the medical opinions in the
record. . . . He must also discuss the weight he assigns to such opinions.” Keyes-Zachary v. Astrue,
695 F.3d 1156, 1161 (10th Cir. 2012) (citations omitted). Mr. Lee does not argue that the ALJ
failed to comply with this requirement, only that the ALJ should have given greater weight to Dr.
Longhi’s opinions. The Court is not convinced.
Dr. Longhi treated Mr. Lee with psychotherapy since at least December 19, 2016. See AR
at 1383. On July 14, 2017, Dr. Longhi completed a Medical Assessment of Ability To Do WorkRelated Activities Form in support of Mr. Lee’s claims. See AR at 1807-1810. As the ALJ
summarized:
Dr. Longhi opined that the Claimant would have moderate limitations in the
following areas: understanding and remembering very short and simple
instructions, maintaining attention and concentration for extended periods,
performing activities within a schedule, maintaining regular attendance, being
punctual, interact appropriately with the general public, maintain socially
appropriate behavior, and be aware of normal hazards. Dr. Longhi opined that the
Claimant would have marked limitations in the following areas: understanding and
remembering detailed instructions, carrying out detailed instructions, working in
coordination with others, making simple work-related decisions, completing a
normal workday and workweek without interruptions from psychological based
symptoms, travel in unfamiliar places, and set realistic goals or make plans
independently of others. (Ex. 22F).

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AR at 22. While the ALJ recognized that Dr. Longhi is Mr. Lee’s treating physician, he gave Dr.
Longhi’s opinions as rendered on the form only “some weight” because:
While the doctor completed a check-box form and did not provide an adequate
explanation for the conclusions reached, I find that support in the evidence that
precludes the Claimant’s ability to perform detailed or complex work. Further, I
find that limited social interaction is appropriate. However, medical evidence does
not support the finding that the Claimant would be unable to complete a normal
workday and workweek.
AR at 22. In other words, the ALJ considered and gave partial weight to Dr. Longhi’s opinions,
discounting his reliance on them for two reasons: (1) Dr. Longhi “did not provide an adequate
explanation for the conclusions reached[,]” and (2) the medical evidence does not support Dr.
Longhi’s finding that Mr. Lee cannot complete a normal workday and workweek. AR at 22. The
Court finds that substantial evidence supports the ALJ’s reasoning.
In order to ensure that an ALJ properly evaluates a treating physician’s opinions “case law,
the applicable regulations, and the Commissioner’s pertinent Social Security Ruling (SSR) all
make clear that in evaluating the medical opinions of a claimant’s treating physician, the ALJ must
complete a sequential two-step inquiry, each step of which is analytically distinct.” Krauser v.
Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). First, the ALJ should determine whether the opinion
is entitled to “controlling weight.” Watkins, 350 F.3d at 1300. An ALJ is required to give the
opinion of a treating physician controlling weight if it is both: (1) “well-supported by medically
acceptable clinical and laboratory diagnostic techniques”; and (2) “consistent with other
substantial evidence in the record.” Id. (quotation omitted). “[I]f the opinion is deficient in either
of these respects, then it is not entitled to controlling weight.” Id.
Because the ALJ does not affirmatively state whether Dr. Longhi’s opinions are entitled to
controlling weight, it appears that he may have skipped the first step under the treating physician
analysis and leapt directly to the second. In the past, judges in this district have held that skipping
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the first step in the analysis constitutes reversible error. See Wellman v. Colvin, CIV 13-1122
KBM, Doc. 19 (D.N.M. Dec. 3, 2014). However, the Tenth Circuit has also indicated that where
a reviewing court can determine that an ALJ “implicitly declined to give the opinion controlling
weight” there is no ground for remand. Mays v. Colvin, 739 F.3d 569, 575 (10th Cir. 2014) (“Ms.
Mays argues that the ALJ did not expressly state whether he had given Dr. Chorley’s opinion
‘controlling weight.’ But the ALJ implicitly declined to give the opinion controlling weight.
Because we can tell from the decision that the ALJ declined to give controlling weight to Dr.
Chorley’s opinion, we will not reverse on this ground.”); see also Causey v. Barnhart, 109 F.
App’x 375, 378 (10th Cir. 2004) (unpublished) (“Implicit in the ALJ’s decision is a finding that
Dr. Waldrop’s opinion . . . is not entitled to controlling weight.”); see also Andersen v. Astrue, 319
F. App’x 712, 721 (10th Cir. 2009) (unpublished) (“It is apparent that the ALJ concluded that these
opinions were not entitled to controlling weight. Although ordinarily the ALJ should have made
explicit findings to this effect . . . we are not troubled by the substance of the ALJ’s
determination.”). Here, the ALJ’s decision to ascribe Dr. Longhi’s opinion “some weight” shows
that he implicitly declined to give it controlling weight because he found it to be unsupported and
inconsistent with other evidence in the record. Therefore, the Court hesitates to reverse the ALJ
solely for failing to explicitly discuss whether Dr. Longhi’s opinion was entitled to controlling
weight. See Perez v. Colvin, CIV 15-0429 MCA-KBM, 2016 WL 8229939, at *6 (D.N.M. Oct.
12, 2016), report and recommendation adopted, 2016 WL 8229937 (D.N.M. Nov. 7, 2016).
However, even if a treating physician’s opinion is not entitled to controlling weight,
“[t]reating source medical opinions are still entitled to deference and must be weighed using all of
the factors provided in 20 C.F.R. § 404.1527” at the second step of the ALJ’s analysis. Watkins,

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350 F.3d at 1300 (quoting SSR 96–2p, 1996 WL 374188, at *4). The Tenth Circuit has summarized
these factors as:
(1) the length of the treatment relationship and the frequency of examination; (2)
the nature and extent of the treatment relationship, including the treatment provided
and the kind of examination or testing performed; (3) the degree to which the
physician’s opinion is supported by relevant evidence; (4) consistency between the
opinion and the record as a whole; (5) whether or not the physician is a specialist
in the area upon which an opinion is rendered; and (6) other factors brought to the
ALJ’s attention which tend to support or contradict the opinion.
Krauser, 638 F.3d at 1331 (quoted authority omitted); see 20 C.F.R. §§ 404.1527(c)(1)-(6),
416.927(c)(1)-(6). An ALJ is “not required ‘to apply expressly each of the six relevant factors in
deciding what weight to give a medical opinion.’” Razo v. Colvin, 663 F. App’x 710, 715 (10th
Cir. 2016) (unpublished) (quoting Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007)).
Rather, an ALJ must simply provide “good reasons” for the weight assigned to the treating
physician’s opinion. Id. Only if the ALJ rejects the opinion completely, must he then give specific,
legitimate reasons for doing so. Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004).
The Court finds that the ALJ met these standards in this case. The ALJ recognized that Dr.
Longhi is Mr. Lee’s treating physician. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). However,
he found the severe restrictions assessed by Dr. Longhi on the form to be unsupported, see 20
C.F.R. §§ 404.1527(c)(3), 416.927(c)(3), and inconsistent with the medical record. See 20 C.F.R.
§§ 404.1527(c)(4), 416.927(c)(4). Thus, the ALJ addressed three of the six regulatory factors;
nothing further was required so long as those reasons were supported by substantial evidence. See
Oldham, 509 F.3d at 1258.
Mr. Lee argues that the ALJ does not indicate which medical evidence contradicted Dr.
Longhi’s findings concerning his limitation in completing a normal workday and workweek.
However, the Court can follow the ALJ’s reasoning. See Webb v. Commissioner, Social Security

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Administration, 750 F. App’x 718, 721 (10th Cir. 2018) (unpublished) (citing Keyes-Zachary, 695
F.3d at 1166). Immediately preceding the ALJ’s discussion of Dr. Longhi’s opinions he weighed
the opinions of the non-examining state agency physicians, including Dr. Walker’s. See AR at 21.
Pertinent here, Dr. Walker opined that Mr. Lee could attend and concentrate sufficient to complete
a normal workday without significant interruptions from psychologically-based symptoms. See AR
at 91. The ALJ gave Dr. Walker’s opinions “great weight” because they were “well supported by
the medical evidence and generally consistent with the evidence as a whole.” AR at 21. Thus, the
ALJ discounted Dr. Longhi’s opinion as to Mr. Lee’s ability to complete a normal workday and
workweek in favor of Dr. Walker’s opinion that he had no such limitation. “The ALJ was entitled
to resolve such evidentiary conflicts and did so.” Allman v. Colvin, 813 F.3d 1326, 1333 (10th Cir.
2016). Moreover, Mr. Lee has not argued that the ALJ erred in relying on Dr. Walker’s opinion.
See, e.g., Tarpley v. Colvin, 601 F. App’x 641, 644 (10th Cir. 2015) (unpublished).
“An ALJ may discount a treating physician’s opinion because it is inconsistent with the
weight of the evidence or assesses new restrictions without explanation or support.” Webb, 750 F.
App’x at 721 (citations omitted). Here, the ALJ permissibly discounted Dr. Longhi’s opinion that
Mr. Lee cannot complete a normal workday because that opinion was unsupported and inconsistent
with Dr. Walker’s opinion. The Court will not reverse the ALJ for his treatment of Dr. Longhi’s
opinion.
B. The ALJ was not required to incorporate the moderate limitations noted by Dr.
Walker into Mr. Lees’ RFC.
Mr. Lee’s next argument is that the ALJ violated established case law by accepting Dr.
Walker’s mental RFC finding while failing to incorporate all of the moderate limitations he
identified. [See Doc. 18, pp. 16-18]. The Court is not convinced that the ALJ erred.

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Dr. Walker reviewed Mr. Lee’s medical records and rendered an opinion as to his residual
functional capacity. Specifically, Dr. Walker completed a Mental Residual Functional Capacity
Assessment (“MRFCA”) in the course of the Administration’s denial of Mr. Lee’s claims. See AR
at 68-91. The MRFCA is a form used by the Social Security Administration, which is broken up
into three sections. See POMS DI 24510.060. “Section I is for recording summary conclusions
derived from the evidence in the file and directs that detailed explanation of the degree of limitation
for each category is to be recorded in Section III.” Carver v. Colvin, 600 F. App’x 616, 618 (10th
Cir. 2015) (unpublished) (internal quotation marks omitted). 3 As has been recognized by the Tenth
Circuit:
The purpose of Section I is chiefly to have a worksheet to ensure that the
psychiatrist or psychologist has considered each of these pertinent mental activities
and the claimant's or beneficiary's degree of limitation.... It is the narrative written
by the psychiatrist or psychologist in section III ... that adjudicators are to use
as the assessment of RFC. Adjudicators must take the RFC assessment in section
III and decide what significance the elements discussed in this RFC assessment
have in terms of the person’s ability to meet the demands of past work or other
work.
Nelson v. Colvin, 655 F. App’x 626, 628–29 (10th Cir. 2016) (quoting SSA, Program Operations
Manual System (POMS), DI 25020.010 B.1 (emphasis in original)). The purpose of Section III is
to state, among other things, “[t]he extent to which the individual can still perform and sustain
specific mental activities and mental functions.” POMS DI 24510.061 (emphasis in original).

3

The Court notes that Dr. Walker’s MRFCA was not completed on the exact form discussed in Carver v.
Colvin, 600 F. App’x 606 (10th Cir. 2015) (unpublished), which relied on POMS DI 24510.060. However,
the form used by Dr. Walker contains the same rating system and four general categories of limitations as
special Form SSA-4934-F4-SUP. Moreover, it directed Dr. Walker to discuss Plaintiff’s mental capacities
in narrative form. Thus, the MRFCA form is sufficiently analogous to special Form SSA-4734-F4-SUP to
allow the Court to determine whether, in consideration of POMS DI 24510.060, the specific psychological
limitations at issue should have been included in the RFC. See Maldonado v. Berryhill, CIV 16-0392 KBM,
2017 WL 2491528, at *2 n.3 (D.N.M. Apr. 26, 2017) (Molzen, M.J.) (citing Vanvakerides v. Colvin, CIV
14-0879 SCY, Doc. 25 at 11 (D.N.M. April 7, 2016) (Yarbrough, M.J.)).

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Thus, “[i]t is the narrative written by the psychiatrist or psychologist in Section III that adjudicators
are to use in the assessment of RFC.” Carver, 600 F. App’x at 619 (citation omitted); see also
Nelson, 655 F. App'x at 628 (citing POMS, DI 25020.010 B.1).
The Tenth Circuit has made clear that, so long as a consultant’s Section III findings reflect
Section I limitations, a reviewing court is to “compare the administrative law judge’s findings to
[the doctor’s] opinion on residual functional capacity, not her notations of moderate limitations.”
Smith v. Colvin, 821 F.3d 1264, 1269 n.2 (10th Cir. 2016). In Smith, the plaintiff argued that the
ALJ failed to include the following nonexertional (Section I) moderate impairments found by the
Administration’s nonexamining consultant:
• maintain concentration, persistence, and pace,
• remain attentive and keep concentration for extended periods,
• work with others without getting distracted,
• complete a normal workday and workweek without interruption for psychologically
based systems,
• perform at a consistent pace without excessive rest periods,
• accept instructions and respond appropriately to criticism by supervisors,
• get along with coworkers or peers without distracting them or engaging in behavioral
extremes,
• respond appropriately to changes in the workplace, and
• set realistic goals or independently plan.
Smith, 821 F.3d at 1268. The Tenth Circuit disagreed. It reasoned that the ALJ’s RFC (“concluding
that Ms. Smith (1) could not engage in face-to-face contact with the public and (2) could engage
in only simple, repetitive, and routine tasks”) “incorporated the functional limitations of Ms.
Smith’s moderate nonexertional impairments” because it was “similar” to the doctor’s Section III
narrative, which concluded “that Ms. Smith (1) could not engage in face-to-face contact with the
public and (2) could engage in only simple, repetitive, and routine tasks.” Id. at 1269. The Tenth
Circuit explained that the Plaintiff’s focus on the consultant’s moderate Section I findings raised
“the wrong question.” Id. at 1269 n.2. Rather, “[a]s discussed above, [the consultant’s] notations

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of moderate limitations served only as an aid to her assessment of residual functional capacity.”
Id. (emphasis added).
Other judges in this District have declined to follow Smith, positing that Section III findings
must always explicitly account for Section I moderate limitations, or else “the Court would have
to find that Smith implicitly overrules Haga [v. Astrue, 482 F.3d 1205 (10th Cir. 2007),] and Frantz
[v. Astrue, 509 F.3d 1299, 1304 (10th Cir. 2007)].” See Silva v. Colvin, 203 F. Supp. 3d 1153,
1162 (D.N.M. 2016) (Vidmar, M.J.); Jones v. Berryhill, 2017 WL 3052748, at *5 (D.N.M. June
15, 2017) (Fashing, M.J.). However, this Court does not believe that Haga, Frantz and Smith are
irreconcilable. See McDaniel v. Berryhill, 2017 WL 3052504, at *14 (D.N.M. July 12, 2017)
(Fouratt, M.J.). As Judge Fouratt explained in McDaniel, “[m]ore recent decisions of the Tenth
Circuit have clarified the application of Haga[.]” Id. These cases, Vigil v. Colvin, 805 F.3d 1199,
1203-04 (10th Cir. 2015), and Smith, collectively stand for the proposition that “an administrative
law judge can account for moderate limitations by limiting the claimant to particular kinds of work
activity.” McDaniel, 2017 WL 3052504, at *14 (quoting Smith, 821 F.3d at 1269). The same
rationale applies to a Section III narrative that inherently accounts for moderate limitations
identified in Section I. Thus, an ALJ need not “parrot” a consultant’s “exact description of
limitations” so long as the ALJ’s RFC reflects the consultant’s “overall assessment.” See Chavez
v. Colvin, 654 F. App’x 374, 375 (10th Cir. 2016) (citing Smith, 821 F.3d at 1268–70 & n. 2).
In this case, Dr. Walker assessed several moderate limitations in Section I of the MRFCA.
See AR at 89-91 However, in Section III he opined that when Mr. Lee is “treatment/medication
complaint and substance free” he retains the RFC to “understand, remember, and carry out simple
instructions, attend and concentrate sufficient to complete a routine work day without significant
interruptions from psychologically-based symptoms; exercise reasonable judgment; interact

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appropriately with coworkers; supervisors and the general public on a superficial basis.” AR at 91.
As noted, the ALJ gave this finding “great weight,” and his RFC determination reflects Dr.
Walker’s opinion. See AR at 18, 21. Therefore, the Court finds no reversible error in the ALJ’s
failure to parrot the moderate limitations identified by Dr. Walker in Section I of the MRFCA form
he completed in this case. See Smith, 821 F.3d at 1269 (“Through these findings, the administrative
law judge incorporated the functional limitations of Ms. Smith’s moderate nonexertional
impairments.”); Chavez, 654 F. App’x at (“While the ALJ didn’t parrot Dr. Lev’s exact
descriptions of Ms. Chavez’s limitations, the ALJ did specifically note his overall assessment that
Ms. Chavez ‘retain[ed] the capacity to do simple tasks.’”).
C. The ALJ was not required to conduct a DAA evaluation in this case because he
found Mr. Lee to be capable of work even considering his alcoholism.
Mr. Lee’s final argument for reversal amounts to a claim that, because the ALJ found his
alcohol addiction disorder to be a severe impairment, he was required to complete a full DAA
evaluation as set forth in SSR 13-2p. [See Doc. 18, pp. 19-22]. The Court is not convinced.
The governing statutes provide that, for the purpose of defining disability, “[a]n individual
shall not be considered to be disabled … if alcoholism or drug addiction would (but for this
subparagraph) be a contributing factor to the Commissioner’s determination that the individual is
disabled.” 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J). A close reading of SSR 13-2p, the
regulations, and pertinent case law belie Mr. Lee’s position that this statute required anything more
from the ALJ in this case.
The ALJ determined that Mr. Lee is not disabled. AR at 24. SSR 13-2p states that when the
Commissioner is adjudicating a claim “and we determine that a claimant is disabled considering
all of the claimant’s medically determinable impairments (MDIs), we must then determine whether
the claimant would continue to be disabled if he or she stopped using drugs or alcohol[.]” 2013
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WL 621536 at *2 (emphasis added). Thus, “[u]nder the Act and our regulations, we make a DAA
materiality determination only when … [w]e find that the claimant is disabled considering all
impairments, including the DAA.” Id. at *4 (emphasis added). The Commissioner even proffers a
flow-chart to demonstrate this point. Id. at *5. The regulatory language supports SSR 13-2p, see
20 C.F.R. § 404.1535(a), 416.935(a), as does pertinent case law. See Drapeau v. Massanari, 255
F.3d 1211, 1214 (10th Cir. 2001) (“The implementing regulations make clear that a finding of
disability is a condition precedent to an application of § 423(d)(2)(C).”); Padilla v. Berryhill, CV
17-0329 GJF, 2018 WL 3830930, at *15-17 (D.N.M. 2018) (Fouratt, M.J.). Thus, because the ALJ
determined that Mr. Lee is not disabled even when considering his alcoholism, he was not required
to complete a DAA evaluation in this case.
V.

CONCLUSION
Mr. Lee has failed to convince this Court that the Commissioner’s decision to deny him

benefits was tainted by legal error or unsupported by substantial evidence.
Wherefore, IT IS THEREFORE ORDERED that Plaintiff Gabriel Lee’s Motion to Reverse
and Remand for a Rehearing with Supporting Memorandum [Doc. 18], is DENIED and the
decision of the Acting Commissioner is AFFIRMED.

___________________________________
JERRY H. RITTER
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent

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