Ulery v. Commissioner Social Security Administration

Filing 23

Opinion and Order. The decision of the Commissioner is affirmed. Signed on 4/30/2013 by Judge James A. Redden. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

ALAN M. ULERY,

Plaintiff,

3:12-cv-00064 RE

OPINION AND ORDER

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,

Defendant.

REDDEN, Judge:

Plaintiff Alan Ulery ("Ulery") brings this action to obtain judicial review of a final
decision of the Commissioner of the Social Security Administration ("Commissioner") denying
his claim for supplemental security income benefits ("SSI"). For the reasons set fmih below, the
decision of the Commissioner is affirmed and this matter is dismissed .

Ill

1 - OPINION AND ORDER

BACKGROUND
Ulery filed his application for SSI on August 21, 2006, alleging disability since June 8,
2006, due to injuries sustained after he was struck by a train, including "can't lift much any more,
can't walk without assistance, can't remember things always, have back spasms." Tr. 143. Ulery
was 26 years old on his alleged onset date. His application was denied initially and upon
reconsideration. A hearing was held on October 1, 2009. The Administrative Law Judge
("ALJ") found him not disabled. Ulery's request for review was denied, making the ALJ's
decision the final decision of the Commissioner.
ALJ's DECISION
The ALJ found Ule1y had the medically dete1minable severe impairments of
polysubstance abuse, borderline intellectual functioning, depression, status post spinous process
fracture in the cervical spine, status post right ankle open dislocation, and status post scapula
fracture. Tr. 12.
The ALJ found that Ule1y' s impairments did not meet or medically equal one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, App. 1. Tr. 13.
The ALJ determined that Ule1y retained the residual functional capacity ("RFC") to
perfmm a reduced range of sedentary work, lift no more than ten pounds, sit for approximately
six hours in an eight hour day, and walk and stand for about two hours in an eight hour day. He
can occasionally balance, stoop, kneel, crouch, and crawl. He can occasionally climb ladders,
stairs, ramps, and scaffolds. He can occasionally reach overhead with the upper extremities.
"Due to the claimant's substance abuse, he cannot maintain work activity on a regular and
continuous basis for a 5-day, 40-hour work week." Tr. 14.
2 - OPINION AND ORDER

The ALJ found Ulery could not perform his past relevant work. Tr. 18.
The ALJ found that, based on the above RFC, "there are no jobs that exist in significant
numbers in the national economy that the claimant can perform .... " Id However, the ALJ found
Ulery's substance abuse was material and "his most limiting impairment regarding the ability to
maintain consistent employment." Tr. 17. The ALJ found that, without the effect of drug and
alcohol abuse, Ulery would retain the ability to perform:
less than a full range of sedentary work .... He could lift no more than
10 pounds, sit for approximately 6 hours in an 8 hour day, and walk
and stand for about 2 hours in an 8 hour day. He could occasionally
balance, stoop, kneel, crouch, and crawl. He could occasionally
climb ladders, stairs, ramps, and scaffolds. He could occasionally
reach overhead with the upper extremities. He can work in a slow
paced job and could perfotm 1-3 step simple, repetitive tasks.
Tr. 20.

Based on the testimony of the vocational witness, the ALJ found Ulety would be able to
perfotm work as a cashier, new charge clerk, or extmder machine operator, and was therefore not
disabled. Tr. 23.
Ulety argues that the ALJ erred by: (1) failing to find Fetal Alcohol Syndrome a severe
impairment at step two; (2) improperly weighing the medical record; and (3) improperly relying
on the vocational evidence.

DISCUSSION
I. Fetal Alcohol Syndrome
At step two, the ALJ determines whether the claimant has a medically severe impairment
or combination of impairments. Bowen v. Yuckert, 482 US 13 7, 140-41 ( 1987). The Social
Security Regulations and Rulings, as well as case law applying them, discuss the step two

3 - OPINION AND ORDER

severity detennination in tetms of what is "not severe." According to the regulations, "an
impaitment is not severe if it does not significantly limit [the claimant's] physical ability to do
basic work activities." 20 CFR § 404.152l(a). Basic work activities are "abilities and aptitudes
necessary to do most jobs, including, for example, walking, standing, sitting, lifting, pushing,
pulling, reaching, canying or handling." 20 CFR § 404.152l(b).
The step two inquiry is a de minimis screening device to dispose of groundless claims.
Yuckert, 482 US at 153-54. An impairment or combination of impairments can be found "not

severe" only if the evidence establishes a slight abnormality that has "no more than a minimal
effect on an individual's ability to work." See SSR 85-28; Yuckert v. Bowen, 841 F2d 303,306
(9'h Cir 1988) (adopting SSR 85-28). A physical or mental impairment must be established by
medical evidence consisting of signs, symptoms, and laborat01y findings, and cannot be
established on the basis of a claimant's symptoms alone. 20 CFR § 404.1508.
Ulety contends the ALJ e!1'ed by failing to find fetal alcohol syndrome a severe
impairment at step two. He argues the ALJ e11'ed by failing to include functional limitations
arising from fetal alcohol system including Impulse Control Disorder and borderline intellectual
functioning. As set out above, the ALJ specifically found the plaintiff had the severe
impairment of borderline intellectual functioning. Tr. 12.
The ALJ found that fetal alcohol syndrome was not a medically detetminable impaitment
because the record "does not contain a diagnosis of fetal alcohol syndrome from an acceptable
medical source based on objective findings." Tr. 13. The evidence indicates Ulery reported a
history offetal alcohol syndrome to doctors, but not that it was shown by objective testing. Tr.
251,263, 435, 500, 508, 601.

4 - OPINION AND ORDER

As to Impulse Control Disorder, it is listed as a diagnosis in a discharge summary dated
August 3, 2006. Tr. 251. All remaining references to Impulse Control Disorder note the
diagnosis is "by history." Tr. 251, 263, 298, 435, 437, 439, 573. The diagnosis does not appear
after October 2007. The ALJ did not err by finding Impulse Control Disorder not severe.
Ulery points to the opinion of David Sweet, Ph.D., who reported the "results of the
evaluation could suppmt the diagnosis of Petal Alcohol Syndrome." Tr. 588. However, Dr.
Sweet wrote his Axis III diagnostic impression of Ulety as "reports numerous physical problems
from train accident, fetal alcohol syndrome by repmt." Tr. 587.
The ALJ did not err by failing to find fetal alcohol syndrome a severe impairment at step
two.

II. Drug and Alcohol Abuse
The Act and the Commissioner's regulations prohibit payment of benefits when drug and
alcohol use is a material factor in a claimant's disability. 42 U.S.C. §§ 423(d)(2)(C);
1382c(a)(3)(J), 20 C.P.R.§ 416.935. An ALJ must conduct a drug and alcoholism analysis
("DAA analysis") by determining which of the claimant's disabling limitations would remain if
the claimant stopped using dmgs or alcohol. 20 C.P.R.§ 404.1535(b). If the remaining
limitations would not be disabling, then the claimant's substance abuse is material and benefits
must be denied. Id, Parra v. Astrue, 481 P.3d 742, 745 (9'h Cir. 2007). The claimant bears the
burden of proving his substance abuse is not a material contributing factor to his disability. Id
Disability opinions are reserved for the Commissioner. 20 C.P.R.§§ 404.1527(e)(1);
416.927( e)(I). If no conflict arises between medical source opinions, the ALJ generally must
accord greater weight to the opinion of a treating physician than that of an examining physician.

5 - OPINION AND ORDER

Lester v. Chafer, 81 F.3d 821, 830 (9th Cir. 1995). In such circumstances the ALJ should also
give greater weight to the opinion of an examining physician over that of a reviewing physician.

Id But, if two medical source opinions conflict, an ALJ need only give "specific and legitimate
reasons" for discrediting one opinion in favor of another. Id at 830. The ALJ may reject
physician opinions that are "brief, conclusmy, and inadequately supported by clinical findings."
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
The ALJ wrote:
As for the opinion evidence, the undersigned gives significant weight
to the medical opinions of the consultative examiners Leslie Pitchford,
PhD, and David Sweet, PhD. Both psychologists examined the claimant
and concluded that the claimant's substance abuse was his most
limiting impairment regarding the ability to maintain consistent
employment.
Tr. 17.
Plaintiff contends that neither psychologist found Ulery's substance abuse" his most
limiting impaitment" for maintaining employment.

A. Leslie Pitchford, Ph.D.
On November 17, 2006, Dr. Pitchford conducted a psychological examination of Ulery.
Tr. 493-96. Mini Mental Status Examination scores suggested mild to moderate cognitive
impairment. Tr. 495. Test results indicated borderline intellectual function, and moderate
depression. Id Dr. Pitchford wrote:
Alan is reporting multiple symptoms associated with a depressive
disorder. It does not appear that his depressive symptoms have
significantly interfered with his ability to carry out activities of
daily living. That said, Alan cmTently appears to be struggling
with a mild depressive disorder. He would benefit from a psychiatric evaluation and counseling.
6 - OPINION AND ORDER

Alan reported frequent use of marijuana and alcohol prior to his
6/2006 accident. His history is consistent with alcohol and
cannabis abuse.
There is a possibility that Alan may have a cognitive disorder,
due to his reported history of fetal alcohol syndrome and/or
injuries sustained in the train accident. However a neuropsychological evaluation will need to be completed to confirm any
neuropsychological impairment.
Tr. 495.
Dr. Pitchford recorded the Diagnostic Impression of Major Depressive Disorder,
Recurrent, Mild; Alcohol Abuse, early full remission (per self-repmt); Cannabis abuse, early full
remission (per self repmt) Amphetamine Abuse, sustained full remission (per self-repmt) and

RIO Cognitive Disorder, NOS. She assessed a GAF of 55, and stated:
Alan appears to be struggling with a mild depressive disorder.
However, it does not appear that depression alone would interfere
with Alan's ability to maintain employment. On the other hand,
Alan's histmy of substance/alcohol abuse may pose a batTier to
obtaining/maintaining employment. Although Alan has reportedly
abstained from using any substances since being injured (6/06), he
is at risk of relapse.
Tr. 496.
On January 18,2007, Dr. Pitchford evaluated Ule1y again. Tr. 504-09. Ule1y reported he
had not used any alcohol or other substances since the accident. He had an apmtment and was
independent in his basic self-care. Tr. 506. No problems were noted with attention or
concentration, although plaintiff stated "he can not usually follow a movie from beginning to end
until he has seen it a few times." Tr. 507. Intelligence test scores were 7'h percentile verbal, 9'h
percentile perfmmance, and 6'h percentile full scale IQ, all in the borderline and low average
range. Dr. Pitchford stated the "following diagnoses are considered:

7 - OPINION AND ORDER

Poly-substance Dependence. Alan indicated that he has been
substance free since his accident but acknowledged in [sic]
extensive history of substance dependence prior to that time.
Cognitive Disorder NOS. Based on Alan's history there is
likelihood that his cognitive limitations are continuous with
his histoty ofleaming problems going back to his school years.
However, Alan has noticed increased problems with his memory
and concentration since he was il\iured.
Depressive Disorder. At this time Alan's symptom picture is best
described by a diagnosis of depressive disorder NOS.
Borderline Intellectual Functioning. Alan's histoty, cunent adaptation and test results are consistent with this diagnosis.
Personality Disorder. There remains some possibility of a personality disorder but at this time a diagnosis is not confirmed.
Fetal Alcohol Syndrome. Alan reported that he was diagnosed
with fetal alcohol syndrome as a child and that he required special
services in school. Although he did not show the physical characteristics sometimes associated with this disorder the diagnosis is
likely based on Alan's history.
Tr. 508.
Dr. Pitchford made Axis I diagnoses of Poly-substance Dependence/Abuse, in full
remission 8 months per self-report; Cognitive Disorder NOS, mild deficits; Depressive Disorder
NOS, and Borderline Intellectual Functioning. Id She assessed a OAF of 55, and stated
"[i]ndividuals with Alan's level of capability usually have difficulty maintaining competitive
employment or following long-term life plans. His ability to sustain work will be fmther
impacted by any physical limitations he may have." Tr. 509.
Plaintiff argues that in her second assessment Dr. Pitchford does not list substance abuse
as a factor affecting employability, and the ALJ could not reasonably conclude Dr. Pitchford

8 - OPINION AND ORDER

opined substance abuse was "the most limiting impairment" to employment. Plaintiff contends,
if read in context, Dr. Pitchford's second opinion is that the plaintiffs cognitive disorder,
depressive disorder, and borderline intellectual functioning are the major limitations to
employment.
The ALJ' reasonably concluded Dr. Pitchford's opinion supported a finding that
plaintiffs substance abuse was material to his disability. This is particularly true given the
additional medical evidence set out below.
B. David Sweet, Ph.D.

On August 22, 2009, Dr. Sweet conducted a Psychodiagnostic Examination of plaintiff.
Tr. 582-89. Ulery rep01ied he had used a case and a half of beer and some vodka four days prior.
Tr. 582. Ulery stated he last used marijuana a month ago. Tr. 583. He had been sober for 18
months after his accident.
Ulery denied depression. He lived with his mother and assisted with chores around the
house. Dr. Sweet noted abstract reasoning was not within normal limits, Ulety' s affect was flat
and incongment with statements he made about his mood, and he demonstrated deficits in
attention and concentration. Tr. 587.
Dr. Sweet's diagnostic impression was:" Axis I Poly-Substance Dependence; Axis II
Borderline Intellectual Functioning OR Mild Mental Retardation, Axis III Reports Numerous
Physical Problems from Train Accident, Fetal Alcohol Syndrome by Report. Dr. Sweet noted
severe psycho social stressors and assessed a GAF of 45. Tr. 587-88.
Dr. Sweet wrote "[t]he most significant problem under the Axis I diagnosis has to do with
his long history of alcohol and dmg use. He said he has lost vhiually evety job because of his
9 - OPINION AND ORDER

alcohol use. At this point, it would be highly unlikely that he could maintain competitive
employment on a consistent basis if he can't stop drinking and using drugs. He has a very poor
track record of maintaining employment in the past because of these very problems." Tr. 588.
The Multiaxial Evaluation Report format is one way for a clinician to list diagnoses.

Diagnostic and Statistical Manual oj1Vfental Disorders, DSM-IV (4'h Ed.), p. 37 (2000). The
principal diagnosis or reason for the visit should be listed first. !d. Axis I is for Clinical
Disorders, Axis II is for Personality Disorders and Mental Retardation, Axis III is for General
Medical Conditions, Axis IV is for psychosocial and environment issues, and Axis V is the
Global Assessment of Functioning ("GAF") Scale.
The ALI gave "significant weight" to Dr. Sweet's opinion. Tr. 17. Plaintiff appears to
argue that there is some significance to Dr. Sweet's Axis I diagnosis, noting that "Dr. Sweet did
not specifically address Axis II. Tr. 588. Dr. Pitchford deferred any diagnosis on Axis II. Tr.
495, 508." Pit's Brief at 10. However, Dr. Sweet's Axis II diagnosis is Borderline Intellectual
Functioning or mild mental retardation. Tr. 587. Therefore Dr. Sweet's Axis I diagnosis of
Poly-Substance Dependence suppmis the ALI's detetmination that DAA is material to plaintiffs
disability.
Ulety argues that the ALI failed to include functional limitations arising from Dr. Sweet's
determination that Ulery had limitations of attention and concentration. The ALJ adequately
provided for these issues by limiting plaintiff to "1-3 step simple, repetitive tasks." Tr. 20. The
ALI's assessment of Dr. Sweet's opinion is supported by substantial evidence.

Ill

Ill
10 -OPINION AND ORDER

C. John Cochran, Ph.D.
On November 29, 2009, Dr Cochran conducted a cognitive and psychological assessment.
Tr. 592-605. Ule1y rep01ted that he was living with his parents having lost housing due to drug
use. Tr. 594. Ulery rep01ted Post-traumatic Stress Disorder ("PTSD"), severe migraine
headaches, lower back, shoulder and foot pain. He rep01ted mndety (Uld depression. Ulery
admitted he was an alcoholic, and drank alcohol the night before the interview. Tr. 596.
Wechsler Adult Intelligence Scale testing indicated verbal comprehension skills in the
Borderline range. Overall intellectual scores were Borderline. Tr. 597. On the Neurobehavioral
Cognitive Status Examination Ulery did not show deficits in attention and concentration. Tr.
598. lnmlediate memory, intermediate verbal memmy, immediate visual mem01y and
intermediate construction design memory were in normal range. He did not show deficits in
expressive and receptive language skills. Verbal and visual memory scores were in the normal
range. Tr. 598-99. In addition, Dr. Cochran administered the Million Clinical Multiaxial
Inventory-H. Tr. 600.
Dr. Cochran diagnosed Axis I: Alcohol Dependence; Cannabis Abuse; PTSD-chronic;
Somatization Disorder; Generalized Anxiety Disorder; and Dysthymic Disorder. Dr. Cochran
diagnosed an Axis II Personality Disorder NOS with avoidant, antisocial and passive aggressive
features, and borderline intellectual functioning, and assessed a GAF of 50. Tr. 601.
The ALJ gave "some weight" to Dr. Cochran's opinion. Tr. 17. The ALJ noted that Dr.
Cochran's opinion "is not consistent with the opinions of examining psychologists Pitchford and
Sweet." !d. This is a specific and legitimate reason to reject Dr. Cochran's opinion. Tonapetyan

v. Halter, 242 F.3d 1144, 1149 (9'h Cir. 2002). Ulely argues that the ALJ erred by failing to
11 - OPINION AND ORDER

identify "which parts of Dr. Cochran's opinion are not consistent with Drs. Pitchford and Sweet
or with the overall medical record." Pit's Brief at 12. However, the ALJ did note Dr. Cochran's
opinion was not entirely consistent with his own objective findings. The ALJ specifically cited
the neurobehavioral cognitive status examination which showed no significant cognitive deficits
in several areas including attention and concentration, mem01y and language comprehension. Tr.
17. This is inconsistent with Dr. Cochran's conclusion that Ulery suffered moderate impaitment
in his ability to remember locations and work-like procedures and moderately severe impairment
in his ability to understand and remember detailed instructions. Tr. 604.
The ALJ is the trier of fact, must "resolve conflicts in the evidence, and if the evidence
can support either outcome, the court may not substitute its judgment for that of the ALJ."

lvlatney v. Sullivan, 981 F .2d 1016, 1019 (9'h Cir. 1992). The opinions and diagnoses conflict.
The evidence could result in "more than one rational interpretation," and the ALJ's conclusion to
grant more weight to Drs. Pitchford and Sweet than Dr. Cochran must be upheld. Burch v.

Barnhart, 400 F.3d 676, 679 (9'h Cir. 2005).
The examining psychologists agree that the primaty diagnosis is substance abuse. Ulety
has the burden of proving that his substance abuse is not material to his disability. Parra, 481
F.3d at 745. The ALJ offered clear and convincing, and specific and legitimate, reasons to give
Drs. Sweet and Pitchfords' opinions greater weight than Dr. Cochran's.

III. Step Five
The ALJ found, because of substance abuse, Ulety "cannot maintain work activity on a
regular and continuous basis for a 5-day, 40-hour work week." Tr. 14. Ulery argues that the ALJ
"has not provided any showing that Claimant's substance use on or after the alleged onset date is
12 -OPINION AND ORDER

of a same or similar degree." Pit's Brief at 23. However, Ulery bears the burden of proof, not
theALJ.
The ALJ posed a hypothetical to the Vocational Expert ("VE") which accounted for all of
Ulety's medically supported limitations. Tr. 86. Two of the occupations identified by the VE
were inconsistent with the exertionallevel in the hypothetical. However, because the VE
identified one occupation consistent with the hypothetical, charge clerk, any etTor in identifying
inconsistent occupations was harmless. Carmickle v. Comm 'r, Soc. Sec. Admin., 533 F.3d 1155,
1162 (9'h Cir. 2008).
CONCLUSION

For these reasons, the ALJ's decision that Ulery is not disabled is based on cot1'ect legal
standards and suppotted by substantial evidence. The decision of the Commissioner is affirmed.
IT IS SO ORDERED.
Dated this

/~<'--tlay of April, 2013.

1

nited States District Judge

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C

13 - OPINION AND ORDER