HARRIS v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION

Filing 21

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 2/19/2016, RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiffs Motion for Summary Judgment (Docket Entry 11 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 17 ) be granted, and that judgment be entered in favor of Defendant. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

EUGENE ALFRED HARRIS,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

1:14CV1005

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Eugene Alfred Harris, brought this action pursuant
to the Social Security Act (the “Act”) to obtain judicial review of
a final decision of Defendant, the Commissioner of Social Security,
denying

Plaintiff’s

claims

for

Disability

Insurance

(“DIB”) and Supplemental Security Income (“SSI”).
1.)

Benefits

(Docket Entry

Defendant has filed the certified administrative record

(Docket Entry 9 (cited herein as “Tr. __”)) and both parties have
moved for judgment (Docket Entries 11, 17); see also Docket Entries
12

(Plaintiff’s

(Plaintiff’s

Memorandum),

Supplemental

Supplemental Memorandum)).

18

(Defendant’s

Memorandum),

20

Memorandum),

(Plaintiff’s

19

Second

For the reasons that follow, the Court

should enter judgment for Defendant.
I.

PROCEDURAL HISTORY

Plaintiff filed applications for DIB and SSI, alleging a
disability onset date of June 1, 2007.

(Tr. 233-42.)

Upon denial

of those applications initially (Tr. 89-116) and on reconsideration
(Tr. 117-49), Plaintiff requested a hearing de novo before an
Administrative Law Judge (“ALJ”) (Tr. 189-91).

Plaintiff, his

attorney, and a vocational expert (“VE”) attended the hearing on
July 23, 2013.

(Tr. 45-72.)

The ALJ thereafter ruled that

Plaintiff did not qualify as disabled under the Act.

(Tr. 27-39.)

The Appeals Council denied Plaintiff’s request for review (Tr. 1013), making the ALJ’s ruling the Commissioner’s final decision for
purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] met the insured status requirements of
the [] Act through September 30, 2010.
2.
[Plaintiff] has not engaged in substantial gainful
activity since June 1, 2007, the alleged onset date.
. . . .
3.
[Plaintiff] has the following severe impairments:
left knee osteoarthritis; major depression; bipolar
disorder; drug induced mood disorder; polysubstance
dependence; personality disorder; hypertension.
. . . .
4.
[Plaintiff’s] impairments, including the substance
use disorders, meet sections 12.04 and 12.09 of 20 CFR
Part 404, Subpart P, Appendix 1.
. . . .
5.
If [Plaintiff] stopped the substances use, the
remaining limitations would cause more than a minimal
impact on t[his] ability to perform basic work
activities; therefore, [he] would continue to have a
severe impairment or combination of impairments.
2

. . . .
6.
If [Plaintiff] stopped the substance use, [he] would
not have an impairment or combination of impairments that
meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1.
. . . .
7.
If [Plaintiff] stopped the substance use, [he] would
have the residual functional capacity to perform a
reduced range of medium work as defined in 20 CFR
404.1567(c) and 416.967(c). He should not be required to
climb or balance based on his left knee.
Due to his
depression, the claimant has a decrease in the ability to
concentrate on and attend to work tasks to the extent
that he is able to perform only simple, repetitive,
routine tasks (i.e., can apply commonsense understanding
to carry out instructions furnished in written, oral, or
diagrammatic form and deal with problems involving
several concrete variables in or from standardized
situations).
He is unable to work at jobs requiring
complex decision making, constant change, or dealing with
crisis situations, or work at a job requiring adherence
to a production rate.
He is limited to occasional
interaction with co-workers and supervisors and the
public.
. . . .
8.
If [Plaintiff] stopped the substance use, [he] would
be unable to perform past relevant work.
. . . .
12. If
[Plaintiff]
stopped
the
substance
use,
considering [his] age, education, work experience, and
residual
functional
capacity,
there
would
be
a
significant number of jobs in the national economy that
[he] could perform.
. . . .
13. The substance use disorder is a contributing factor
material to the determination of disability because
[Plaintiff] would not be disabled if he stopped the
substance use. Because the substance use disorder is a
3

contributing factor material to the determination of
disability, [Plaintiff] has not been disabled within the
meaning of the [] Act at any time from the alleged onset
date through the date of this decision.
(Tr. 30-39 (bold font and internal parenthetical citations omitted)
(emphasis added).)
II.

DISCUSSION

Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).

Hines v.

However, “the scope

of [the Court’s] review of [such a] decision . . . is extremely
limited.”

Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

Plaintiff has not shown entitlement to relief under the extremely
limited review standard.
A.

Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).

Instead,

the Court “must uphold the factual findings of the ALJ if they are
supported

by

substantial

evidence

and

were

reached

through

application of the correct legal standard.” Hines, 453 F.3d at 561
(internal brackets and quotation marks omitted).

“Substantial

evidence means ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’”

Hunter v. Sullivan,

993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402
U.S. 389, 390 (1971)).

“It consists of more than a mere scintilla

of evidence but may be somewhat less than a preponderance.” Mastro
4

v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (internal citations and
quotation marks omitted).

“If there is evidence to justify a

refusal to direct a verdict were the case before a jury, then there
is

substantial

evidence.”

Hunter,

993

F.2d at

34

(internal

quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake

to

re-weigh

conflicting

evidence,

make

credibility

determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”

Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,

the

responsibility

for

that

decision

falls

on

the

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in

any

substantial

gainful

activity

by

reason

of

any

medically determinable physical or mental impairment which can be

5

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.’” Id.
(quoting

42

U.S.C.

§

423(d)(1)(A)).1

“To

regularize

the

adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical

condition.”

Id.

“These

regulations

establish

a

‘sequential evaluation process’ to determine whether a claimant is
disabled.”

Id. (internal citations omitted).

This sequential evaluation process (“SEP”) has up to five
steps:

“The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).2

A finding adverse to the claimant at any of

1 The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
[SSI] . . . provides benefits to indigent disabled persons.
The statutory
definitions and the regulations . . . for determining disability governing these
two programs are, in all aspects relevant here, substantively identical.” Craig,
76 F.3d at 589 n.1 (internal citations omitted).
2
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

6

several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.

The second step determines if the

claimant is ‘severely’ disabled.

If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, the “claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”

Id. at 179.3

Step four then requires the ALJ to assess

whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.

Id. at

However, if the claimant establishes an inability to

return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to

3 “RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks omitted)).
The RFC includes both a
“physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.

7

perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”

Hall, 658 F.2d at 264-65.

If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs

available

disabled.

in

the

community,”

the

claimant

qualifies

as

Hines, 453 F.3d at 567.4
B.

Assignments of Error

Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) the ALJ “failed adequately to address whether or not
[Plaintiff’s]

substance

osteoarthritis,

major

abuse

materially

depression,

contributed

personality

to

his

disorder,

and

hypertension” (Docket Entry 12 at 3; see also id. (“[The ALJ]
failed to follow the applicable legal standards of 42 U.S.C.
[§] 423(d)(2)(C) and 20 C.F.R. [§] 416.935.”);
2)

the

ALJ

“gratuitously

dismissed

the

April

27,

2012

professional opinion of [Plaintiff’s] treating physician, Dr. Bryon
Randolph” (id. (citing Tr. 22)); and

4 A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).

8

3) “the June 11, 2014 letter of Jennifer Allran, Psychiatric
Nurse Practitioner . . . [offering h]er professional opinion, akin
to that of a treating physician, was ignored by the Appeals
Council” (id. (citing Tr. 19)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.

(Docket Entry 18 at 4-15.)
1.

Substance Abuse Analysis

According to Plaintiff, the ALJ “failed adequately to address
whether or not [Plaintiff’s] substance abuse materially contributed
to his osteoarthritis, major depression, personality disorder, and
hypertension.”

(Docket Entry 12 at 3.)

Specifically, Plaintiff

has asserted that the ALJ “failed to follow the applicable legal
standards of 42 U.S.C. [§] 423(d)(2)(C) and 20 C.F.R. [§] 416.935.”
(Id.) “The statute in question provides that, ‘an individual shall
not be considered to be disabled for purposes of this subchapter
[which addresses DIB claims] if alcoholism or drug addiction would
(but for this subparagraph) be a contributing factor material to
the Commissioner’s determination that the individual is disabled.’”
Huff v. Colvin, No. 1:10CV695, 2014 WL 575721, at *3 (M.D.N.C. Feb.
11,
§

2014)

(unpublished)

423(d)(2)(C))

(internal

(Peake,

M.J.)

brackets

(quoting

omitted),

42

U.S.C.

recommendation

adopted, slip op. (M.D.N.C. Mar. 25, 2014) (Osteen, Jr., C.J.); see
also 42 U.S.C. § 1382c(a)(3)(J) (imposing same bar for SSI claims);
Mitchell v. Commissioner of Soc. Sec., 182 F.3d 272, 274 (4th Cir.

9

1999) (observing that federal law “precludes an award of DIB and
SSI to those disabled by alcoholism or drug addiction” and citing
42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J)).

Coordinately, the

regulation referenced by Plaintiff (which governs SSI claims)
states:

“If [the Social Security Administration] find[s] that [a

claimant is] disabled and [the Social Security Administration]
ha[s] medical evidence of [the claimant’s] drug addiction or
alcoholism, [the Social Security Administration] must determine
whether

[the

claimant’s]

drug

addiction

or

alcoholism

is

a

contributing factor material to the determination of disability
. . . .”

20 C.F.R. § 416.935(a); accord 20 C.F.R. § 404.1535(a)

(regulating DIB claims).5
The regulation at issue also offers this explanation of the
“[p]rocess [the Social Security Administration] will follow when
[it] ha[s] medical evidence of [a claimant’s] drug addiction or
alcoholism,” 20 C.F.R. § 416.935(b):
(1) The key factor we will examine in determining whether
drug addiction or alcoholism is a contributing factor
material to the determination of disability is whether we
would still find you disabled if you stopped using drugs
or alcohol.
(2) In making this determination, we will evaluate which
of your current physical and mental limitations, upon
5 Plaintiff thus has misframed the relevant inquiry by arguing that the ALJ
“failed adequately to address whether or not [Plaintiff’s] substance abuse
materially contributed to his osteoarthritis, major depression, personality
disorder, and hypertension” (Docket Entry 12 at 3 (emphasis added)); the Court
instead must decide if the ALJ applied the wrong legal standard or made findings
unsupported by substantial evidence in “determin[ing] whether [Plaintiff’s] drug
addiction or alcoholism [wa]s a contributing factor material to the determination
of disability,” 20 C.F.R. §§ 404.1535(a), 416.935(a) (emphasis added).

10

which we based our current disability determination,
would remain if you stopped using drugs or alcohol and
then determine whether any or all of your remaining
limitations would be disabling.
(i) If we determine that your remaining limitations would
not be disabling, we will find that your drug addiction
or alcoholism is a contributing factor material to the
determination of disability.
(ii) If we determine that your remaining limitations are
disabling, you are disabled independent of your drug
addiction or alcoholism and we will find that your drug
addiction or alcoholism is not a contributing factor
material to the determination of disability.
Id. (emphasis added); accord 20 C.F.R. § 404.1535(b).
“The claimant bears the burden to prove that he [or she] would
be disabled if he [or she] stopped using alcohol [and/or drugs].”
Morgan v. Colvin, 1:12CV1326, 2015 WL 631164, at *4 (M.D.N.C. Feb.
12, 2015) (unpublished) (Webster, M.J.) (citing McCray v. Colvin,
C/A No. 1:13–173–SVH, 2014 WL 3798835, at *13 (D.S.C. July 31,
2014) (unpublished), which quotes Newsome v. Astrue, 817 F. Supp.
2d 111, 126 (E.D.N.Y. 2011), and cites Parra v. Astrue, 481 F.3d
742, 748 (9th Cir. 2007), Doughty v. Apfel, 245 F.3d 1274, 1280
(11th Cir. 2001), Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir.
2000), Brown v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999), and White
v. Commissioner of Soc. Sec., 302 F. Supp. 2d 170, 173 (W.D.N.Y.
2004)), recommendation adopted, slip op. (M.D.N.C. Mar. 31, 2015)
(Biggs, J.); accord Cage v. Commissioner of Soc. Sec., 692 F.3d
118, 123-25 (2d Cir. 2012); Joyner v. Astrue, No. 4:11CV138FL, 2012
WL 3870359, at *2 (E.D.N.C. Sept. 6, 2012) (unpublished); Walsh v.

11

Astrue, Civ. Action No. TMD 10-3259, at *2 (D. Md. Mar. 8, 2012)
(unpublished); Weaver v. Astrue, No. 3:10CV568-GCM-DCK, 2011 WL
4596122,

at

*14

(W.D.N.C.

Aug.

10,

2011)

(unpublished),

recommendation adopted, 2011 WL 4596449 (W.D.N.C. Sept. 30, 2011)
(unpublished); Blankenship v. Astrue, 635 F. Supp. 2d 447, 451
(W.D. Va. 2009).

Plaintiff has not shown that the ALJ applied the

wrong legal standard or lacked substantial evidence to conclude
that Plaintiff failed to carry his burden on that front.
In that regard, at step two of the SEP, the ALJ concluded that
Plaintiff’s “polysubstance dependence” rose to the level of a
severe impairment and that he suffered from four other severe
mental disorders, “major depression; bipolar disorder; drug induced
mood disorder; . . . [and] personality disorder,” as well as two
severe

physical

“hypertension.”

impairments,

“left

knee

osteoarthritis”

(Tr. 30 (bold font omitted).)

and

Further, at the

SEP’s third step, the ALJ expressly considered whether Plaintiff’s
“mental impairments, including the substance use disorders, me[]t
[L]istings 12.04 and 12.09.”

(Id.)6

Listing 12.04 addresses “Affective Disorders,” limited to this
“diagnostic description”: “[A] disturbance of mood, accompanied by
a full or partial manic or depressive syndrome.

Mood refers to a

prolonged emotion that colors the whole psychic life; it generally
involves either depression or elation.”

20 C.F.R. Part 404,

6 Plaintiff has not argued that his left knee osteoarthritis or hypertension met
a listing. (See Docket Entries 12, 19, 20.)

12

Subpart P, App. I, § 12.04 (emphasis added).

Listing 12.09, in

turn, concerns “Substance Addiction Disorders,” i.e., “[b]ehavioral
changes or physical changes associated with the regular use of
substances that affect the central nervous system.”

Id., § 12.09.

To meet Listing 12.04, a claimant generally must satisfy not
only the

above-quoted

“diagnostic description”

for

“Affective

Disorders,” but also “paragraph A criteria (a set of medical
findings), and paragraph B criteria (a set of impairment-related
functional limitations).”

Id., § 12.00(A) (emphasis added); see

also id. (“We will find that you have a listed impairment if the
diagnostic

description

in

the

introductory

paragraph

and

the

criteria of both paragraphs A and B (or A and C, when appropriate)
of the listed impairment are satisfied.”).7
12.09

does

not

impose

independent

By contrast, Listing

requirements;

instead,

it

incorporates the listing-level standards for nine different mental
and physical disorders associated with substance abuse, including
Listing 12.04 (as well as Listing 12.08, pertaining to Personality

7
“There are additional functional criteria (paragraph C criteria) in . . .
[Listing] 12.04 . . . . [The Social Security Administration] will assess the
paragraph C criteria only if [it] find[s] that the paragraph B criteria are not
satisfied.” 20 C.F.R. Part 404, Subpart P, App. I, § 12.00(A); see also id.,
§ 12.04(C). Notwithstanding the foregoing and above-quoted language from Section
12.00(A) (which appears to permit Paragraph C criteria to function only as a
substitute for Paragraph B criteria), Listing 12.04 seemingly allows satisfaction
of Paragraph C’s elements to take the place of proof as to the elements of both
Paragraphs A and B. See id., § 12.04 (“The required level of severity for these
disorders is met when the requirements in both A and B are satisfied, or when the
requirements in C are satisfied.”). The Court, however, need not wrestle with
these finer points regarding the role of Listing 12.04’s Paragraph C criteria,
because Plaintiff has not argued that the record would have permitted (much less
required) the ALJ to find that Plaintiff satisfied such criteria (either while
using alcohol and drugs or abstaining). (See Docket Entries 12, 19, 20.)

13

Disorders).

See id., § 12.09; see also id., § 12.00(A) (“Listing

12.09 is structured as a reference listing; that is, it will only
serve to indicate which of the other listed mental or physical
impairments must be used to evaluate the behavioral or physical
changes resulting from regular use of addictive substances.”).
Paragraph A of Listing 12.04 consists of these elements:
Medically documented persistence, either continuous or
intermittent, of one of the following:
1. Depressive syndrome characterized by at least four of
the following:
a. Anhedonia or pervasive loss of interest in almost all
activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions, or paranoid thinking; or
2. Manic syndrome characterized by at least three of the
following:
a. Hyperactivity; or
b. Pressure of speech; or
c. Flight of ideas; or
d. Inflated self-esteem; or

14

e. Decreased need for sleep; or
f. Easy distractibility; or
g. Involvement in activities that have a high probability
of painful consequences which are not recognized; or
h. Hallucinations, delusions or paranoid thinking; or
3. Bipolar syndrome with a history of episodic periods
manifested by the full symptomatic picture of both manic
and depressive syndromes (and currently characterized by
either or both syndromes)[.]
Id., § 12.04(A) (emphasis added).

The ALJ decided that Plaintiff

satisfied the diagnostic description and Paragraph A of Listing
12.04,

because

“he

ha[d]

a

drug

induced

mood

disorder”

and

“medically documented persistence of a depressive syndrome with
decreased

energy,

difficulty

thoughts of suicide.”

concentrating

or

thinking,

and

(Tr. 30; see also Tr. 31-32 (discussing,

inter alia, “December 2011 emergency room notes . . . show[ing that
Plaintiff was] intoxicated and expressing suicidal or homicidal
ideation,” but that “[o]nce sober his mood stabilized,” as well as
records from a mental health care provider documenting Plaintiff’s
treatment with prescription drugs in 2012 and 2013).)8
Paragraph B of Listing 12.04 requires proof that the condition
documented via Paragraph A “result[ed] in at least two of the
following: 1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or 3.
Marked difficulties in maintaining concentration, persistence, or
8 The ALJ thus actually lightened Plaintiff’s burden by finding Paragraph A met,
despite noting only three symptoms associated with his depressive syndrome.

15

pace; or 4. Repeated episodes of decompensation, each of extended
duration[.]”

20 C.F.R. Part 404, Subpart P, App. I, § 12.09(B)

(emphasis added); see also id., §§ 12.00(C) (“Where we use ‘marked’
as a standard for measuring the degree of limitation, it means more
than

moderate

but

less

than

extreme.

.

.

.

Episodes

of

decompensation are exacerbations or temporary increases in symptoms
or signs accompanied by a loss of adaptive functioning . . . .

The

term repeated episodes of decompensation, each of extended duration
in these listings means three episodes within 1 year, or an average
of once every 4 months, each lasting for at least 2 weeks.”), 12.08
(requiring, as to Listing 12.08, “Personality Disorders,” proof of
same Paragraph B criteria as Listing 12.04).

The ALJ ruled that

Plaintiff’s depressive syndrome and related symptoms qualified
under Paragraph B of Listing 12.04 because, although they only
“resulted in a mild restriction in activities of daily living
. . . and one-to-two [] episodes of decompensation” (Tr. 30), they
caused “marked difficulty in maintaining social functioning and
marked difficulty in maintaining concentration, persistence or
pace” (id. (emphasis added)).
Based on those findings, the ALJ concluded that Plaintiff’s
“mental impairments, including the substance use disorders, me[]t
[L]istings 12.04 and 12.09.”
consistent
§§

with

404.1535(b),

the

(Id. (emphasis added).)

governing

416.935(b),

“the

16

regulations,
[ALJ]

see

f[ou]nd[]

20

Next,
C.F.R.

that

drug

addiction and alcoholism [we]re contributing factors that [we]re
material to
added).)

this

finding of

disability.”

(Tr.

30

(emphasis

Specifically, the ALJ determined that, “[i]f [Plaintiff]

stopped the substance use, . . . [he] would continue to have a
severe impairment or combination of impairments . . . , [but] the
remaining

limitations

would

not

meet

criteria of [L]istings 12.04 or 12.08.”
omitted).)

or

medically

equal

the

(Id. at 33 (bold font

Even more granularly, the ALJ explained that, “[i]n

terms of the ‘paragraph B’ criteria, . . . [i]n social functioning,
[Plaintiff] would have moderate difficulties if the substance use
was stopped. . . .

With regard to concentration, persistence or

pace, [he] would have moderate difficulties if the substance use
was stopped.”

(Id. (emphasis added); see also id. (finding that,

absent substance abuse, Plaintiff’s “restriction in activities of
daily living” would remain only “mild” and he “would experience no
episodes of decompensation”).)9
To support the foregoing determinations, the ALJ noted, as to
“social

functioning,”

that

Plaintiff’s

“anger

management

and

reduced ability to interact with others was evident when he was

9 As documented above, Listings 12.04 and 12.08 share the same Paragraph B
requirements. Accordingly, although the ALJ never expressly found that Plaintiff
would have met Listing 12.08 prior to reassessing his limitations without alcohol
and drug use, upon concluding that Plaintiff, if sober, would lack limitations
that satisfied the Paragraph B criteria applicable to both Listings 12.04 and
12.08, the ALJ could conclude that Plaintiff could not qualify as disabled under
Listing 12.08 (particularly because Listing 12.08 contains no alternative
Paragraph C criteria, see 20 C.F.R. Part 404, Subpart P, App. I, § 12.08). In
addition, Plaintiff has not contended that his personality disorder met the
requirements of Listing 12.08. (See Docket Entries 12, 19, 20.)

17

under the influence of alcohol or drugs.”

(Tr. 32 (emphasis

added); see also id. (“[W]hen using and under the influence of
drugs and/or alcohol, [Plaintiff] was . . . charged with domestic
violence.”).)

Similarly, the ALJ observed that, “[a]part from

using drugs or alcohol, [Plaintiff’s] mood was calmer and affect
positive.”

(Id. (emphasis added); see also id. (noting, from

record of hospitalizations, that “after binging alcohol [Plaintiff]
bec[a]m[e] depressed”).)
Further,

in

relation

to

both

“social

functioning”

and

“concentration, persistence or pace,” the ALJ credited a state
agency psychologist’s findings that:
[I]n the absence of drug and alcohol abuse . . .
[Plaintiff was] capable of understanding, learning and
retaining simple work instructions.
[He] was able to
sustain attention and persist at simple, routine tasks
for extended periods of two hour segments.
He could
sustain effort across the work day and work week with
appropriate work breaks and maintain regular attendance
and be punctual within customary tolerances. He had the
ability to get along with co-workers and peers in an
appropriate manner without distracting them or exhibiting
behavioral extremes. [He] could accept instructions and
respond appropriately to supervision.
(Tr. 33 (internal citation omitted); see also id. (“This opinion is
well supported by medically acceptable clinical records and is not
inconsistent with the other substantial evidence and, therefore, is
entitled to substantial weight, but the [ALJ] notes these [findings
regarding Plaintiff’s capacity] are only in the absence of drug and
alcohol

abuse.”).)

Finally,

again

bearing

on

both

“social

functioning” and “concentration, persistence or pace,” the ALJ
18

found that, “[i]n periods of at least partial sobriety (drinking
mostly on weekends) as more recent records show, and compliance
with medication, [Plaintiff] was able to function in programs that
were designed to help the unemployed in getting back into the work
force.

This involved classwork and working with others.”

(Id.;

see also id. at 31 (discussing record of Plaintiff’s visit with
mental health care provider on May 8, 2013 (Tr. 746-52), at which
Plaintiff reported “drinking alcohol on weekends,” as well as “that
things were going fine for him and he was looking for a job”).)
Rather than identifying any legal deficiency in the ALJ’s
foregoing thorough analysis or any lack of substantial evidence for
the ALJ’s instant well-supported findings, Plaintiff has resorted
to distortions, conclusory assertions, and baseless claims of bias:
The [ALJ] felt that absent the substance abuse,
[Plaintiff] is good to go. It makes no sense. From this
record as a whole, it is difficult if not impossible to
imagine [Plaintiff], faithfully on all his meds,
gainfully employed on a full time basis. What we may
have here is some judicial disdain for the poor, the
homeless, and the drunk.
(Docket Entry 12 at 2.)

The Court should reject that approach.

As to distortion, the quotations above from the ALJ’s decision
make clear that the ALJ did not cavalierly conclude that, “absent
the substance abuse, [Plaintiff] is good to go” (id.); rather, the
ALJ merely determined (based on a careful review of the record)
that, if/when Plaintiff ceased abusing drugs and alcohol, his level
of

impairment

in

“social

functioning”

19

and

“concentration,

persistence or pace” would decline from “marked” to “moderate” (Tr.
30-34).

Because that finding meant Plaintiff no longer could meet

Listing

12.04

(or

Listing

12.08),

the

ALJ

ruled,

under

the

applicable regulations, 20 C.F.R. §§ 404.1535(b), 416.935(b), that
“drug addiction and alcoholism [we]re contributing factors that
[we]re material to th[e] finding of disability [the ALJ otherwise
made when considering Plaintiff’s substance abuse along with his
other mental disorders].”

(Tr. 30.)

Nor, for at least two reasons, can Plaintiff obtain reversal
of those rulings by the ALJ by asserting in conclusory fashion
that, “[f]rom this record as a whole, it is difficult if not
impossible to imagine [Plaintiff], faithfully on all his meds,
gainfully employed on a full time basis” (Docket Entry 12 at 2).
First, the Court does not undertake a de novo review of the
evidence

and

then

decide

if

it

finds

it

“difficult

if

not

impossible to imagine” Plaintiff working full-time; instead, the
Court “must uphold the factual findings of the ALJ if they are
supported

by

substantial

evidence

and

were

reached

through

application of the correct legal standard.” Hines, 453 F.3d at 561
(internal brackets and quotation marks omitted); see also Frady,
646 F.2d at 144 (describing judicial review function in Social
Security context as “extremely limited”). Second, Plaintiff cannot
prevail in this Court by opaquely pointing to the “record as a
whole”; to the contrary, he “bears the burden of establishing [his]

20

impairments and the resulting limitations on [his] ability to
perform work,” Donnell v. Astrue, No. 1:09CV308, 2010 WL 3911425,
at

*3

(M.D.N.C.

recommendation

Oct.

5,

adopted,

2010)
slip

(unpublished)

op.

(M.D.N.C.

(Dixon,
Nov.

5,

M.J.),
2010)

(Schroeder, J.), and “conclusory arguments without citation to the
record are insufficient to meet his burden,” Albertson v. Colvin,
No. CV12–2508–JPR, 2013 WL 2251639, at *18 (C.D. Cal. May 22, 2013)
(unpublished), appeal filed, No. 13-56245 (9th Cir. July 17, 2013).
In like fashion, Plaintiff gains nothing from his unsupported
suggestion that the ALJ acted out of “disdain for the poor, the
homeless, and the drunk” (Docket Entry 12 at 2).

See Partee v.

Astrue, 638 F.3d 860, 865 (8th Cir. 2011) (“There is a ‘presumption
of

honesty

and

integrity

in

those

serving

Withrow v. Larkin, 421 U.S. 35, 47 (1975).

as

adjudicators.’

[The plaintiff’s] bias

claim consists entirely of unsupported allegations based on the
ALJ’s

decision

itself,

and

we

find

it

unfounded.”

(internal

parallel citations omitted)); Rosas v. Colvin, No. CV 13-2756-SP,
2014 WL 3736531, at *3 (C.D. Cal. July 28, 2014) (unpublished)
(“ALJs ‘are presumed to be unbiased.’
F.3d 853, 857 (9th Cir. 2001).

Rollins v. Massanari, 261

This presumption may be ‘rebutted

by a showing of conflict of interest or some other specific reason
for disqualification.’

Id. at 858.

Here, [the] plaintiff offers

nothing more than conclusory allegations of bias.”); Wright v.
Colvin, No. 12-21773-CIV, 2014 WL 3400978, at *8 (S.D. Fla. July

21

11, 2014) (unpublished) (“Conclusory allegations and speculation
are not enough to support a finding that the ALJ was biased.”).
Indeed, the Court should condemn “the manner in which [Plaintiff’s]
counsel attacked the ALJ and his decision-making process . . .
[with] unsupported allegations . . . suggesting that the ALJ was
perhaps

biased.

These

personal

attacks

are

unwarranted,

distracting, and d[o] not aid counsel’s attempt to advocate on
behalf of his client.” Williams v. Colvin, No. 14-1081-CM, 2015 WL
2092504, at *2 (D. Kan. May 5, 2015) (unpublished).
Plaintiff’s Memorandum comes closest to presenting a colorable
argument against the ALJ’s handling of the substance abuse issue
when, after asserting that the ALJ “failed to follow the applicable
legal standards

of

42

U.S.C.

[§]

423(d)(2)(c)

[§] 416.935” (Docket Entry 12 at 3), it states:

and

20

C.F.R.

“In that respect

this case is very similar to Drapeau v. Massanari, 225 [sic] F.3d
1211 (10th Cir. 2001).

See also Bustamante v. Massanari, 262 F.3d

949 (9th Cir. 2001), Salazar v. Barnhardt [sic], 468 F.3d 615 (10th
Cir. 2006), and Hildebrand v. Barnhardt [sic], 302 F.3d 836 (8th
Cir. 2002).”

(Docket Entry 12 at 3.)

However, Plaintiff did not

even attempt to show what, if any, specific aspect of those four
decisions, when measured against the record in this case, supports
his position that the ALJ misapplied the statutory and regulatory
provisions

in

question.

(See

id.)

Particularly

given

the

“extremely limited” nature of judicial review in this sphere,

22

Frady, 646 F.2d at 144, Plaintiff cannot “merely cite[] cases
without explanation and offer[] conclusory assertions,” Peck v.
United States, No. CIV S-11-151 JAM DAD PS, 2011 WL 3876044, at *5
(E.D. Cal. Sept. 1, 2011) (unpublished); see also PNY Techs., Inc.
v. SanDisk Corp., No. 11CV4689WHO, 2014 WL 1677521, at *5 n.7 (N.D.
Cal. Apr. 25, 2014) (unpublished) (“[The plaintiff] string cites 10
opinions without adequately explaining how each is applicable to
this case. . . .

It is not the [c]ourt’s job to dig through each

of

to

these

cases

discern

and

craft

an

argument

for

[the

plaintiff].”); Copes v. Chater, 983 F. Supp. 1268, 1274 n.2 (E.D.
Mo. 1997) (criticizing use “of string cites followed by scant or no
application of the law to the facts of [the] case”).
To make matters worse, having neglected his own obligation “to
spell out [hi]s arguments squarely and distinctly, or else forever
hold [hi]s peace,” United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) (internal quotation marks omitted), Plaintiff replied to
Defendant’s dispositive filing by temerariously chastising her for
“ignor[ing]

the

substantially

pertinent

cases

meaningful in this case” (Docket Entry 19 at 1).10

[he]

cited,

If, in moving

10 Nor, in again referencing Drapeau, Bustamante, Salazar, and Hildebrand, did
Plaintiff’s Supplemental Memorandum remedy the failure of analysis that
characterizes his Memorandum; to the contrary, although the Supplemental
Memorandum selectively block-quotes from the first three of those opinions, it
does not attempt to explain how their reasoning demonstrates any shortcoming in
the ALJ’s handling of substance abuse issues in this case. (See Docket Entry 19
at 1-6.) Instead, the Supplemental Memorandum evidently hopes the Court will
accept this facile formulation: because the plaintiffs in Drapeau, Bustamante,
and Salazar suffered from various impairments, including substance dependence,
and obtained favorable judicial rulings, Plaintiff should obtain a favorable
(continued...)

23

for judgment, Plaintiff could not bother to explain the pertinence
or meaningfulness of Drapeau, Bustamante, Salazar, and Hildebrand,
he surely cannot fault Defendant for declining to discuss them.
See generally Franklin Sav. Corp. v. United States, 180 F.3d 1124,
1128 n.6 (10th Cir. 1999) (“[Plaintiffs] develop[ed] this argument
so superficially, however, as to waive it.”).
In any event, Drapeau, Bustamante, Salazar, and Hildebrand do
not establish that the ALJ “failed to follow the applicable legal
standards of 42 U.S.C. [§] 423(d)(2)(c) and 20 C.F.R. [§] 416.935”
(Docket Entry 12 at 3).

The first of those decisions involved a

claimant who contracted polio as an infant and, as an adult,
“alleg[ed] disability due to post-polio syndrome.”

Drapeau, 255

F.3d at 1212 (describing post-polio syndrome as “muscle fatigue and
decreased endurance, often accompanied by weakness, fasciculations,
and atrophy in selective muscles . . . occur[ring] many years after
an attack of paralytic poliomyelitis” (internal quotation marks
omitted)).

She “ha[d] also been diagnosed with dysphagia, a

condition that makes swallowing difficult[, as well as] . . .
significant depressive symptoms . . . [, and] ha[d] a long history
of alcohol abuse.”

Id. (internal citations omitted).

10 (...continued)
judicial ruling, given that he suffers from impairments, including substance
dependence. (See id.) In fact, as shown in the discussion that follows above,
a review of Drapeau, Bustamante, and Salazar (as well as Hildebrand) does not
reveal any flaw in the ALJ’s consideration of Plaintiff’s substance abuse.

24

The claimant “contend[ed] her impairments me[]t or equal[ed]
the

criteria

for

Listing

11.11,

the

listing

for

anterior

poliomyelitis . . . [which she could satisfy by showing that she]
ha[d] anterior poliomyelitis . . . [and] exhibit[ed a] persistent
difficulty with swallowing . . . .”

Id. at 1212-13.

Her “treating

physician [] stated his opinion that [she] met the listing for
anterior

poliomyelitis

because

of

her

diagnosis

of

post-

poliomyelitis coupled with dysphagia, which causes difficulty in
swallowing.”

Id. at 1213.

Nonetheless, an ALJ concluded, based

only on a consultative physician’s report, that the claimant did
not meet any listing.

Id.

The ALJ further ruled the claimant

ineligible for benefits due to depression because her “alcohol
abuse is a material factor in determining whether she is disabled.”
Id. at 1214 (internal brackets and quotation marks omitted).
The Tenth Circuit found error warranting remand first because
“[t]he ALJ did not provide any analysis of why [the claimant] did
not meet Listing 11.11, did not mention or discuss [the treating
physician’s] report, did not provide any explanation for why he
disregarded the opinion of a treating physician, and did not
provide any reason for giving greater weight to the opinion of a
consulting physician than to a treating physician.”

Id. at 1213.

The Drapeau opinion further deemed the ALJ’s approach to the
alcoholism issue “flawed,” primarily because “the ALJ failed to
determine whether [the claimant] was disabled prior to finding that

25

alcoholism was a contributing factor material thereto.”
other words,

the

ALJ did

not

“apply §

423(d)(2)(C)

Id.

In

properly

[because]. . . he ha[d] not yet made a finding of disability.”

Id.

The Tenth Circuit finally observed that the ALJ had only focused on
whether the claimant’s alcoholism precluded a finding of disability
due to depression and, therefore, had not considered whether she
qualified

as

disabled

in

light

notwithstanding her alcoholism.

of

all

her

impairments,

See id.

None of those considerations arise in this case.

First,

Plaintiff has not argued that any of his physical impairments could
satisfy a listing (with or without continued substance abuse).
(See Docket Entries 12, 19, 20.)

Further, the ALJ here expressly

found that Plaintiff’s mental impairments rose to listing-level,
before determining

that,

without

substance

abuse, Plaintiff’s

degree of limitation fell below listing-level.

(See Tr. 30-34.)

Finally, the ALJ thereafter analyzed all of Plaintiff’s impairments
(physical and mental) together and concluded that, if he ceased
substance abuse, he retained the RFC to perform jobs available in
significant numbers in the national economy.

(See Tr. 34-39.)11

11
Specifically, the ALJ’s RFC assessment:
(1) discussed Plaintiff’s
bipolarism, depression, left knee osteoarthritis, and hypertension; (2) adopted
restrictions related to the first three of those conditions; and (3) explained
the absence of limitations for the fourth. (See Tr. 34-37.) Moreover, Plaintiff
has not identified any further restrictions the ALJ should have incorporated into
the RFC to account for any of the four, foregoing conditions or Plaintiff’s
personality disorder. (See Docket Entries 12, 19, 20.) Accordingly, to the
extent Plaintiff contends the ALJ erred by listing “only one severe impairment,
Bipolar Disorder, [as] remain[ing] ‘[i]f [Plaintiff] stopped the substance
abuse’” (Docket Entry 12 at 2-3 (quoting Tr. 33)), that error would not warrant
(continued...)

26

Drapeau thus does not support Plaintiff’s challenge to the ALJ’s
instant denial of disability benefits.
Next among the opinions cited by Plaintiff, Bustamante (like
Drapeau) addressed “whether it is error for an ALJ to determine
that

a

claimant’s

mental

impairments

are

the

product

and

consequence of his alcohol abuse prior to making a determination
that

the

claimant

is

disabled

under

the

five-step

inquiry.”

Bustamante, 262 F.3d at 954-55 (internal quotation marks omitted).
The Ninth Circuit agreed with the Tenth Circuit’s Drapeau decision
on that point and held that “an ALJ should not proceed with the
analysis under §§ 404.1535 or 416.935 if he or she has not yet
found the claimant to be disabled under the five-step inquiry.”

11 (...continued)
remand because, “upon determining that a claimant has one severe impairment, the
[ALJ] must continue with the remaining steps,” Maziarz v. Secretary of Health &
Human Servs., 837 F.2d 240, 244 (6th Cir. 1987); accord Oldham v. Astrue, 509
F.3d 1254, 1256–57 (10th Cir. 2007); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir.
2007); Ashby v. Colvin, Civ. Action No. 2:14-674, 2015 WL 1481625, at *2-6
(S.D.W. Va. Mar. 31, 2015) (unpublished); Powell v. Astrue, 927 F. Supp. 2d 267,
274-75 (W.D.N.C. 2013); Baker v. Astrue, Civ. No. SAG-10-1045, 2012 WL 12751, at
*3-4 (D. Md. Jan. 3, 2012) (unpublished); Clark v. Commissioner of Soc. Sec., No.
2:09CV417, 2010 WL 2730622, at *11 (E.D. Va. June 3, 2010) (unpublished),
recommendation adopted, 2010 WL 2731380 (E.D. Va. July 9, 2010); Lauver v.
Astrue, No. 2:08CV87, 2010 WL 1404767, at *4 (N.D.W. Va. Mar. 31, 2010)
(unpublished); Washington v. Astrue, 698 F. Supp. 2d 562, 579 (D.S.C. 2010);
Jones v. Astrue, No. 5:07CV452FL, 2009 WL 455414, at *2 (E.D.N.C. Feb. 23, 2009)
(unpublished). The ALJ here found a severe impairment at step two (even absent
substance abuse) and proceeded with the remaining SEP steps (adopting in due
course an RFC as to which Plaintiff has articulated no concrete objection). (See
Tr. 33-39; Docket Entries 12, 19, 20.) Any alleged misapplication of law at step
two thus caused Plaintiff no prejudice. See Oldham, 509 F.3d at 1256–57; Lewis,
498 F .3d at 911; Maziarz, 837 F.2d at 244; Ashby, 2015 WL 1481625, at *2-6;
Powell, 927 F. Supp. 2d at 274-75 Baker, 2012 WL 12751, at *3-4; Clark, 2010 WL
2730622, at *11; Lauver, 2010 WL 1404767, at *4; Washington, 698 F. Supp. 2d at
579–80; Jones, 2009 WL 455414, at *2; see also McAnally v. Astrue, 241 F. App’x
515, 518 (10th Cir. 2007) (“[W]ith regard to her hypertension, loss of vision or
skin problems, the claimant has shown no error by the ALJ because [the claimant]
does not identify any functional limitations that should have been included in
the RFC assessment or discuss any evidence that would support the inclusion of
any limitation.” (internal brackets and quotation marks omitted)).

27

Id. at 955.

That holding does not counsel remand in this case, as

the ALJ here first found that Plaintiff qualified as disabled,
before analyzing whether that disability finding could stand absent
ongoing substance abuse by Plaintiff.

(See Tr. 30-34.)

The third of the opinions on which Plaintiff relies, Salazar,
focuses on a Social Security Administration “teletype on applying
[the statutory prohibition against benefit awards where substance
abuse materially contributes to the disability finding], which
speaks to situations where a claimant has one or more other mental
impairments in addition to [substance abuse].”

Salazar, 468 F.3d

at 623. The teletype “stresses the need for careful examination 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 [substance abuse] is not a contributing
factor material to the disability determination[.]”

Id.

The

Salazar Court acknowledged that an ALJ’s “failure to specifically
mention the teletype is not fatal,” but concluded that an error
occurred in that case because “there [wa]s not substantial evidence
to support the ALJ’s conclusion that [the claimant] would not be
disabled in the absence of her [substance abuse].”

Id. at 624.

Specifically, “the ALJ’s finding that [the claimant’s] mental
impairments improved after a period of sobriety [wa]s based on a
mistaken reading of the evidence.”

Id.; see also id. (“[T]he

record establishes that . . . after forty days of sobriety (the

28

longest documented period in the record), [a doctor] referred [the
plaintiff]

.

.

.

for

inpatient

psychiatric

treatment

for

‘increasing depression, hopelessness, and suicidal ideation.’”).
By contrast, in this case (as previously discussed), the ALJ
made detailed findings, supported by substantial evidence, that
Plaintiff’s mental functioning acutely worsened when he abused
alcohol and/or drugs and materially improved when he did not. (See
Tr. 30-34.) In the words of another court also recently confronted
with a Social Security claimant’s inapt invocation of Salazar:
[U]nlike here, the mental condition of th[e] claimant [in
Salazar] deteriorated dramatically in the absence of
alcohol.
In fact, that claimant’s mental condition
became so bad during a period of sobriety that she had to
be hospitalized. In this case, the correlation is just
the opposite. Here, according to both expert opinion and
[Plaintiff’s own statements], [Plaintiff] improves during
periods of sobriety.
Reid v. Colvin, No. 14CV2336KMT, 2015 WL 4979768, at *4 (D. Colo.
Aug. 21, 2015) (unpublished); see also Huff, 2014 WL 575721, at *5
(rejecting challenge relying on teletype discussed in Salazar,
where “record contain[ed] ample medical evidence contrasting [the
claimant’s] functional abilities during periods of drug use and
relative sobriety”). Accordingly, Salazar lights no path to relief
for Plaintiff.12
12 To the extent the Tenth Circuit in Salazar, 468 F.3d at 624, read the Social
Security Administration’s above-referenced teletype to establish “a brightline
rule that an ALJ cannot find that drug or alcohol use is a contributing factor
[to the disability determination] where there is no medical opinion addressing
the issue, . . . such a rule, found nowhere in the U.S. Code or C.F.R., is
unsound. It would unnecessarily hamper ALJs and impede the efficient disposition
of applications in circumstances that demonstrate [drug and alcohol use]
(continued...)

29

In the last of the decisions cited by Plaintiff, the Eighth
Circuit considered an appeal where:
During the administrative hearing . . ., the ALJ noted
the allegations of [the claimant’s] drug addiction, and
recognized additionally that [she] was indeed disabled.
Rather than decide whether [the claimant] was entitled to
relief, the ALJ continued the hearing and requested that
[the claimant] submit to a psychological evaluation in
order to more fully develop the record.
These
examinations were never completed.
Rather, the ALJ
decided against [the claimant], finding that she would
not be disabled independent of her alcoholism and drug
addiction.
Hildebrand, 302 F.3d at 838 (internal footnote omitted). The court
remanded the case for further administrative action, because “the
ALJ’s decision [wa]s devoid of any analysis regarding any current
addiction to account for [the claimant’s] disability.” Id. at 839.
As

discussed

above,

the

ALJ’s

instant

denial

of

Plaintiff’s

disability claim(s) suffers from no such want of analysis, but
instead shows in a thorough and well-supported fashion the manner
in which substance abuse materially contributed to Plaintiff’s
disability during the period for which he sought benefits.
Tr. 30-34.)

(See

Plaintiff’s reliance on Hildebrand, like his citation

to Drapeau, Bustamante, and Salazar, therefore comes to naught.
In sum, the Court should deem meritless Plaintiff’s assignment
of error premised on the ALJ’s purported “fail[ure] to follow the

12 (...continued)
materiality in the absence of predictive opinions.” Cage v. Commissioner of Soc.
Sec., 692 F.3d 118, 126 (2d Cir. 2012); see also id. at 125 (“[T]he Teletype, as
an unpromulgated internal agency guideline, does not have the force of law and
is entitled to deference only insofar as it has the power to persuade.”).

30

applicable legal standards of 42 U.S.C. [§] 423(d)(2)(C) and 20
C.F.R. [§] 416.935” (Docket Entry 12 at 3).
2.

Dr. Randolph’s Letter

Plaintiff’s second issue on review faults the ALJ for not
giving sufficient weight to the opinion expressed by Dr. Randolph
in a letter dated April 27, 2012.

(See id. (citing Tr. 22); see

also Tr. 36 (“giv[ing] little weight” to said letter).)
treating

source

rule

generally

requires

an

ALJ

to

The

assign

controlling weight to a treating source’s opinion regarding the
nature
§§

and

severity

404.1527(c)(2),

of

a

claimant’s

416.927(c)(2).

impairment.

However,

20

opinions

C.F.R.
on

the

ultimate issue of disability do not receive controlling weight
because the Commissioner retains the authority to render such
decisions.

20 C.F.R. §§ 404.1527(e), 416.927(e).

Dr. Randolph’s instant letter states in its entirety:
[Plaintiff] is being treated at Lincoln Community Health
Center for multiple medical problems.
These include
Bipolar Disease, Asthma, Knee Deformity, and Arthritis.
He is currently seeing a Psychiatrist and he is on
Risperdal, Depakote, and Welbutrin. Do [sic] to the mood
swings along with medications he has not been able to
maintain employment.
I have recommended that he seek
disability. I will gladly complete any documentation if
sent to me. If further information is needed I can be
reached at 919 956-[XXXX].

31

(Tr. 22.)13

In this text, Dr. Randolph offered only one “opinion,”

i.e., that, “[d]o [sic] to the mood swings along with medications
[Plaintiff] has not been able to maintain employment.”

(Id.)14

A treating source’s opinion that a claimant is “not able to
maintain employment [is a] finding[] reserved for the Commissioner,
not

[a]

medical

statement[].”

Coheley

v.

Colvin,

No.

2:13CV1810VEH, 2014 WL 6748991, at *6 (N.D. Ala. Dec. 1, 2014)
(unpublished), appeal dismissed, No. 15-10383 (11th Cir. July 28,
2015) (unpublished). As a result, an ALJ properly may “give little
weight to [such] opinions . . . .”

Id.; see also Saragas v.

Astrue, Civ. Action No. 09-236-DLB, 2010 WL 3432207, at *4 (E.D.
Ky. Aug. 30, 2010) (unpublished) (“Contrary to [the p]laintiff’s
assertions, the ALJ did not commit reversible error when he gave
little credence to [a treating physician’s] statement that ‘it is

13 “Risperdal, and its generic form, risperidone, are prescription antipsychotic
medications used to treat patients with mental illness.” Ward v. Ortho-McNeil
Pharm., No. 5:14CV120BO, 2015 WL 4110990, at *1 (E.D.N.C. July 7, 2015)
(unpublished). “Depakote . . . [is] designed to treat depression, schizophrenia
and other forms of mental illness . . . .” Arden v. Commissioner of Soc. Sec.,
No. 1:10CV623, 2011 WL 2784435, at *3 (N.D. Ohio June 20, 2011) (unpublished),
recommendation adopted, 2011 WL 2745943 (N.D. Ohio July 13, 2011) (unpublished).
“Welbutrin . . . [is] commonly prescribed for depression . . . .” Clark v.
Commissioner of Soc. Sec., No. 2:09CV417, 2010 WL 2730622, at *15 (E.D. Va. June
3, 2010) (unpublished), recommendation adopted, 2010 WL 2731380 (E.D. Va July 9,
2010) (unpublished).
14 Thus, contrary to Plaintiff’s suggestion (see Docket Entry 19 at 3), Dr.
Randolph’s single, conclusory opinion regarding an ultimate disability issue
differs greatly from the nuanced medical opinions of a treating psychiatrist (Dr.
Emily Newman), on which the Ninth Circuit relied in Bustamante, 262 F.3d at 953
(citing Dr. Newman’s letter “diagnos[ing the claimant] with ‘Psychotic Disorder,
298.90,’ ‘Alcohol Dependence, 303.9,’ and ‘Schizotypal Personality Disorder,’”
opining “that a recent decrease in alcohol consumption ‘has likely contributed
to his increase in psychotic symptoms,’” and stating: “‘[The claimant] is quite
functionally impaired. His psychotic symptoms and his anxiety prevent him from
being organized enough to remember appointments. He is too paranoid about people
to be able to work in any environment where contact with others is required.’”).

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unlikely that [the p]laintiff will be able to maintain any type of
employment.’

A treating physician’s opinion is only entitled to

deference when it is a medical opinion.

When a treating physician

instead submits an opinion on an issue reserved to the Commissioner
- such as whether the claimant is ‘disabled’ or ‘unable to work’ the opinion is not entitled to any particular weight.” (internal
brackets and citations omitted)).

Plaintiff’s instant assignment

of error thus fails as a matter of law.15
3.

Nurse Practitioner Allran’s Letter

Lastly, Plaintiff’s Memorandum contends the Appeals Council
“ignored” a letter dated June 11, 2014, from Nurse Practitioner
Allran, when instead the Appeals Council should have treated Nurse
Practitioner Allran’s “professional opinion[] akin to that of a
treating physician . . . .”

(Docket Entry 12 at 3.)

However,

15 Additionally, as the ALJ noted, “Dr. Randolph d[id] not treat [Plaintiff] for
mental health issues.”
(Tr. 36; see also Tr. 55 (“Q
Okay.
Now is [Dr.
Randolph] treating you for the bipolar disorder as well? A No. CBC, Carolina
Behavioral Center.”), 62-63 (“Q [Carolina Behaviorial Center] do[es] your mental
health? A Yes. Q At Carolina. How about your physical health? Where do you
go?
A
Lincoln Community Center.
Q
Okay.
ATTY:
And that’s Dr.
Randolph. . . . Q Okay. So what does Dr. Randolph treat you for? A What does
he treat me for? He helps me with my cholesterol. Q Okay. A Cholesterol and
pain pills. . . . Q Okay. And where are you having the pain? A In my left
knee.”).) The ALJ therefore properly declined to give more than little weight
to Dr. Randolph’s opinion that Plaintiff’s mood swings and related medications
kept him from working, because the nature and extent of a treatment relationship
may affect the weight given to a treating source opinion.
See 20 C.F.R.
§§ 404.1527(c)(2)(ii), 416.927(c)(2)(ii); see also Berliner v. Colvin, No.
4:13CV2070, 2015 WL 901520, at *13 (E.D. Mo. Mar. 3, 2015) (unpublished) (“[T]he
ALJ properly discounted the opinions of Dr. Belancourt . . . . Dr. Belancourt’s
opinion regarding [the p]laintiff’s inability to work was based primarily upon
[her] mental impairments, for which Dr. Belancourt was not treating [her].”);
Campos v. Colvin, No. CA 13-216 ML, 2014 WL 2453358, at *16 (D.R.I. June 2, 2014)
(unpublished) (“[The p]laintiff tries to augment her mental impairments by
focusing on [her primary care doctor’s] references to depression and
anxiety. . . .
[T]hese references do not represent a diagnosis from a
psychiatrist with the training to assess and diagnose such disorders . . . .”).

33

after Defendant’s Memorandum pointed out the defects in both parts
of Plaintiff’s foregoing contention (see Docket Entry 18 at 13-15),
Plaintiff conceded (in his Supplemental Memorandum) that: (1) “the
Appeals Council did not ignore the letter of [Nurse Practitioner]
Allran
(Docket

. . . [but rather] did indeed reference that [letter]”
Entry

19

at

1

(citing

Tr.

11));

and

(2)

“nurse

practitioners are not ‘acceptable medical resources [sic]’ under 20
C.F.R. [§] 404.1513(d)(1) and 20 C.F.R. [§] 416.913(d)(1)” (id. at
6-7).

Put another way, by Plaintiff’s own admission, his third

assignment of error lacks any basis whatsoever.16

16 Regrettably, rather than stop with those concessions, Plaintiff’s counsel
struck back at Defendant’s counsel for having professionally pointed out the
deficiency of Plaintiff’s position, by sarcastically “invit[ing] Government
counsel to walk into the Duke University Medical Center, where [Plaintiff] has
been a patient, and dismissively put down nurse practitioners.” (Docket Entry
19 at 7.)
That commentary deserves rebuke on at least two levels.
First,
Defendant’s Memorandum did not “dismissively put down nurse practitioners,” but
instead merely cited controlling regulations (see Docket Entry 18 at 14-15);
Plaintiff’s counsel should not level false charges against a fellow attorney
(particularly not in a court filing), see, e.g., Fed. R. Civ. P. 11(b) (“By
presenting to the court a pleading, written motion, or other paper . . . an
attorney . . . certifies that to the best of the person’s knowledge, information,
and belief, formed after an inquiry reasonable under the circumstances: . . . (3)
the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity
for further investigation or discovery[.]”); N.C.R. Prof’l Conduct 4.4, comment
[2] (“[U]nfounded personal accusations generally serve no substantial purpose
other than to embarrass, delay, or burden others and violate this rule.”).
Second, Plaintiff’s counsel should not have aimed snide invective at Defendant’s
counsel. See, e.g., United States v. Venable, 666 F.3d 893, 904 n.4 (4th Cir.
2012) (condemning directing of “sarcastic[]” remarks at opposing counsel as
“disrespectful and uncivil”).
In addition to the foregoing transgressions,
Plaintiff’s Supplemental Memorandum pointlessly assails the Social Security
Administration for having failed “to catch up with modern 21st century medical
practice, in which highly trained nurse practitioners, skilled in diagnosing and
treating health conditions, and to an extent prescribing medicines, are the
health partner of choice for millions of Americans.” (Docket Entry 19 at 7.)
Not content to rest there, four days later, Plaintiff’s counsel filed an
unauthorized Second Supplemental Memorandum asserting that, because (according
to a “USA Today study released Juy [sic] 27, 2015”) nurse practitioners receive
payments for services under the Medicare program, the Social Security
Administration cannot “at the same time dismiss the expert opinion of a nurse
(continued...)

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III.

CONCLUSION

Plaintiff’s Memorandum, Supplemental Memorandum, and Second
Supplemental Memorandum all conclude with the same refrain:
is a very sad case, but it is not a close case.”

“This

(Docket Entry 12

at 4; Docket Entry 19 at 7; Docket Entry 20 at 2.)

The Court

should concur, though not (as to the latter point at least) for the
reasons Plaintiff would have the Court so adjudge.

Simply put,

Plaintiff has utterly failed to show entitlement to relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for

16 (...continued)
practitioner in a disability case.” (Docket Entry 20 at 1-2.) These comments
serve no purpose in a legal brief. The Court must apply the laws and regulations
that actually govern Social Security disability cases; it does not decide what
laws and regulations should govern such matters. See, e.g., U.S. Const. art. I,
§ 1 (“All legislative Powers herein granted shall be vested in a Congress of the
United States, which shall consist of a Senate and House of Representatives.”);
42 U.S.C. § 405(a) (“The Commissioner of Social Security shall have full power
and authority to make rules and regulations and to establish procedures, not
inconsistent with the provisions of this subchapter, which are necessary or
appropriate to carry out such provisions, and shall adopt reasonable and proper
rules and regulations to regulate and provide for the nature and extent of the
proofs and evidence and the method of taking and furnishing the same in order to
establish the right to benefits hereunder.”); Chevron v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 864 (1984) (“[P]olicy arguments are more properly
addressed to legislators or administrators, not to judges.”); Barrett v. Indiana,
229 U.S. 26, 30 (1913) (“It is the province of the legislature to make the laws,
and of the courts to enforce them.”). The Congress has formed subcommittees to
develop
legislation
concerning
Social
Security
disability.
See
http://waysandmeans.house.gov/subcommittee/social-security (last visited Feb. 18,
2016); http://www.finance.senate.gov/about/subcommittees (last visited Feb. 18,
2016). The Social Security Administration employs a Deputy Commissioner for
Legislation and Congressional Affairs, whose “duties include
. . .
[c]oordinating the development of legislative proposals designed to improve [the
Social Security Administration’s] programs . . . [and d]eveloping [Social
Security Administration] regulations . . . .” https://www.ssa.gov/legislation
(last visited Feb. 18, 2016). Going forward, Plaintiff’s counsel should direct
his Social Security disability policy prescriptions to venues of that sort, not
to this Court. See generally Brown v. Clayton, No. 3:11CV714, 2013 WL 1409881,
at *1 (D. Conn. Apr. 8, 2013) (unpublished) (“Motions filed with the Court are
a vehicle for the articulation of specific facts and law that support a party’s
position relevant to a case.
Such filings, however, are not meant to be a
vehicle through which attorneys . . . emote [or] let off steam . . . .”).

35

Summary Judgment (Docket Entry 11) be denied, that Defendant’s
Motion for Judgment on the Pleadings (Docket Entry 17) be granted,
and that judgment be entered in favor of Defendant.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 19, 2016

36