Stogner v. Commissioner of Social Security
MEMORANDUM AND OPINION. Stogner's action against the Commissioner of Social Security Administration is DISMISSED WITH PREJUDICE. Signed by Magistrate Judge Keith F. Giblin on 3/8/18. (ljw, )
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
DONALD TERRY STOGNER,
COMMISSIONER OF THE SOCIAL
Plaintiff, Donald Terry Stogner, requests judicial review of a final decision of the
Commissioner of Social Security Administration with respect to his application for
disability-based benefits. In accordance with the provisions of 28 U.S.C. § 636(c), the parties in
this case have consented to have a United States Magistrate Judge conduct all proceedings,
including trial, entry of a final judgment, and all post-judgment proceedings. The undersigned
finds that the administrative law judge=s decision lacks reversible error and is supported by
substantial evidence. The administrative law judge’s decision denying benefits is affirmed.
Donald Terry Stogner is 63 years old and last worked full-time on September 27, 2012, at
a bar where he was fired by his boss after having a disagreement with a customer. Stogner
surmised that he wouldn’t have been able to work at the bar much longer after his termination due
to the fact that he had been previously injured his back and shoulder while on the job. He had
tears in the labrum of his right shoulder and had those surgically repaired in March 2014. Stogner
testified that he was undergoing physical therapy but still couldn’t raise his arm above his shoulder.
Stogner also complained about problems with his back and has stated that his lower back had been
troubling him for a number of years due to the physical work that he previously performed as a
After the shoulder injury and his termination from work, Stogner was treated by Dr. Brian
Spore, D.O. who opined on February 27, 2013, that Stogner had decreased range of motion in his
neck, slightly weak grip strength, and decreased range of motion in his back. On March 23, 2013,
Stogner was examined by Dr. Jerry Loving, D.O. at the request of the Administration. Although
he complained of pain in his neck and back, he acknowledged that he had received no treatment
other than prescription strength pain medication. Dr. Loving opined that Stogner had only mild
limitations in walking, standing, lifting, and carrying. Stogner subsequently underwent an MRI
on his right shoulder in January 2014, which indicated a tear in his rotator cuff. He confirmed that
he underwent arthroscopic surgery on his right shoulder and had been taking hydrocodone since
that time for shoulder-related discomfort.
Stogner also contends that he is disabled due to anxiety and anger issues. He began
treatment for these problems at the local VA clinic after his alleged onset date of September 27,
2012. He saw Frankie Clark, Ph.D. for a psychological evaluation on January 24, 2013, and
advised Dr. Clark that he was applying for disability because of issues with anger, anxiety, and
being a perfectionist. He further advised that he had a history of driving under the influence and
had been charged with possession in the past. Dr. Clark assessed Stogner as having anxiety
disorder and alcohol abuse in partial sustained remission.
On February 5, 2013, Stogner underwent an initial evaluation for psychiatric care at a
Veterans’ Administration Clinic and was diagnosed with depression and anxiety. On February 25,
2013, he advised a VA psychiatrist that he gets easily aggravated when drinking and stated that he
could quit drinking if he wanted to. The VA psychiatrist felt that Stogner was downplaying his
alcohol problem and indicated that his issues with anxiety would be difficult to treat as long as he
continued to drink.
Although Stogner alleges that his physical impairments interfere with his ability to lift,
stand, walk, bend, climb, and squat, he acknowledged that he shops in stores, manages his finances,
drives, cooks, loads and unloads the dishwasher, sweeps, mows the yard, and performs self-care
and personal hygiene tasks. Stogner spends most of his time at home, watching television and
spending time on his computer. Stogner testified that he has not had any emergency medical
treatment or overnight hospitalizations related to his back and shoulder since he last worked.
Stogner protectively applied for disability, Disability Insurance Benefits (“DIB”), and
supplemental security income on October 1, 2012, alleging disability beginning September 27,
2012, due to degenerative disc disease, pain in upper back, shoulder, neck, carpal tunnel syndrome,
high cholesterol, anger, and anxiety. 1 (Tr. 19, 239). The claims were denied initially on April 3,
2013, and upon reconsideration on July 9, 2013. Stogner then timely filed a request for a hearing
before an Administrative Law Judge (ALJ) and a hearing was held on May 5, 2014.
1. Social Security DIB are authorized by Title II of the Social Security Act and provide income to individuals who
are forced into involuntary, premature retirement, provided they are both insured and disabled, regardless of indigence.
See 42 U.S.C. § 423(c) (definition of insured status); 42 U.S.C. § 423(d) (definition of disability). In contrast, SSI
benefits are authorized by Title XVI of the Social Security Act and provide an additional resource to the aged, blind
and disabled to assure that their income does not fall below the poverty line. 20 C.F.R. § 416.110 (2015). Eligibility
for SSI is based on proof of disability and indigence. See 42 U.S. C. § 1382c(a)(3) (definition of disability); 42 U.S.C.
§§ 1382(a) (financial requirements). Although these are separate and distinct programs, applicants to both programs
must prove “disability” under the Act. See 42 U.S.C. § 423(d)(1)(A) (disability insurance); 42 U.S.C. § 1382(c)(3)(A)
(SSI). The law and regulations governing the determination of disability are the same for both programs. Greenspan
v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).
The Five-Step Sequential Evaluation Process
The ALJ utilized the five- step sequential evaluation process for determining whether
Stogner was disabled. See 20 C.F.R. §§ 404.1520(a) and 416.920(a). At step one, the ALJ must
determine whether a claimant is engaging in substantial gainful activity (SGA). If an individual
engages in SGA, he is not disabled regardless of how severe his physical or mental impairments
are and regardless of his age, education, and work experience. If an individual is not engaging in
SGA, the analysis proceeds to the second step. At step two, the ALJ must determine whether the
claimant has a medically determinable impairment that is “severe” or a combination of
impairments that is “severe.” 20 C.F.R. §§ 404.1520(c) and 416.920(c). If the claimant does not
have a severe medically determinable impairment or combination of impairments, he is not
disabled. If the claimant does have a severe impairment or combination of impairments, the
analysis proceeds to the third step. At step three, the ALJ must determine whether the claimant’s
impairment of combination of impairments meets or medically equals the criteria of an impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1526,
416.920(d), 416.925, and 416.926). If his impairment or combination of impairments meets or
medically equals the criteria of a listing and meets the duration requirement, the claimant is
disabled. 20 C.F.R. §§ 404.1509 and 416.909. If it does not, the analysis proceeds to the next
step. Before proceeding to step four of the sequential evaluation process, the ALJ must first
determine the claimant’s residual functional capacity, which is his ability to do physical and mental
work activities on a sustained basis despite limitations from his impairments. All of the claimant’s
impairments are to be considered, including impairments that are not severe. At step four, the ALJ
must determine whether the claimant has the residual functional capacity to perform the
requirements of his past relevant work. 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant
has the residual functional capacity to do his past relevant work, he is not disabled. If the claimant
is unable to do any past relevant work or does not have any past relevant work, the analysis
proceeds to the last step. At the last step of the sequential evaluation process, the ALJ must
determine whether the claimant is able to do any other work considering his residual functional
capacity, age, education, and work experience. If the claimant is able to do other work, he is not
disabled. If the claimant is not able to do other work and meets the duration requirement, he is
disabled. 20 C.F.R. §§ 404.1520(g) and 416.920(g).
Regulations pertaining to alcohol and drug abuse
Finally, if a claimant is disabled and there is medical evidence of a substance use disorder,
the ALJ must determine if the substance use disorder is a contributing factor material to the
determination of disability. In making this determination, the ALJ must evaluate the extent to
which the claimant’s mental and physical limitations would remain if the claimant stopped the
substance use. If the remaining limitations would not be disabling, the substance use disorder is a
contributing factor material to the determination of disability and the claimant is not disabled under
the Act. See 20 C.F.R. §§ 404.1535 and 416.935.
The ALJ’s Decision
At step one, the ALJ determined that Stogner has not engaged in substantial gainful activity
since September 27, 2012, the alleged onset date. At step two, the ALJ found that Stogner had the
following severe impairments: obesity; degenerative joint disease of the right shoulder status post
arthroscopic surgery in March 2014; degenerative disc disease; depression; anxiety; and alcohol
abuse. His impairments of hypertension and hearing loss were determined to be non-severe
At step three, the ALJ found that Stogner’s impairments, including the substance use
disorder, met sections 12.04, 12.06, and 12.09 of 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
C.F.R. §§ 404.1520(d) and 416.920(d). The ALJ determined that Stogner had marked restrictions
in his activities of daily living; marked difficulties in social functioning; moderate difficulties with
regard to concentration, persistence, or pace; and has experienced one to two episodes of
decompensation. The ALJ determined that Stogner was disabled at step three, finding that “during
periods when the claimant consumed alcohol, the combined effects of his depression, anxiety, and
the alcohol use met the listings at 12.04, 12.06, and 12.09, through the ‘paragraph B’ criteria.”
The ALJ further found that, in her opinion, if Stogner stopped the substance use, the
remaining limitations (the physical impairments) would cause more than a minimal impact on his
ability to perform basic work activities; therefore, he would continue to have a severe impairment
or combination of impairments. However, his depression and anxiety, absent heavy drinking,
would be non-severe. The ALJ further found that if Stogner stopped the substance use, he would
have the residual functional capacity to perform medium work as defined in 20 C.F.R. §§
404.1567(c) and 416.967(c) with the ability to lift and/or carry 50 pounds occasionally and 25
pounds frequently as well as to sit for 6 hours and to stand and/or walk for 6 hours in an 8 hour
work day. In addition, the ALJ found that Stogner can frequently balance, stoop, kneel, and climb
ramps or stairs as well as occasionally crouch, crawl, and climb ladders, ropes, or scaffolds.
The ALJ found that if Stogner stopped the substance abuse, he would be able to perform
his past relevant work as a bar manager. The ALJ went on to hold that Stogner’s substance abuse
was a contributing factor material to the determination of disability because he would not be
disabled if he stopped the substance abuse. She further held that because alcohol abuse was a
contributing factor material to the determination of disability, Stogner was not disabled within the
meaning of the Social Security Act at any time from the alleged onset date through the date of her
Review of Social Security disability cases “is limited to two inquiries: (1) whether the
decision is supported by substantial evidence on the record as a whole, and (2) whether the
Commissioner applied the proper legal standard.” Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir.
2005) (citing Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994)); see generally 42 U.S.C. §
405(g) (describing and elaborating on the standard for judicial review of decisions of the
Commissioner of Social Security). Substantial evidence is “more than a mere scintilla and less
than a preponderance.” Perez, 415 F.3d at 461 (citation and internal quotation marks omitted). It
refers to “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. (internal citation and quotation marks omitted). In applying this standard, the
court “may not reweigh the evidence or substitute [its] judgment for the Commissioner’s.” Id.
(internal citation omitted). The court may affirm only on the grounds that the Commissioner stated
for his decision. Cole v. Barnhart, 288 F.3d 149, 151 (5th Cir. 2002) (per curiam).
In order to qualify for disability benefits, a claimant must suffer from a disability. See 42
U.S.C. § 423(d)(1)(A). The Social Security Act defines a disability as a “medically determinable
physical or mental impairment lasting at least twelve months that prevents the claimant from
engaging in substantial gainful activity.” Masterson v. Barnhart, 309 F.3d 267, 271 (5th Cir.
2002); see also 42 U.S.C. § 423(d)(1)(A). As stated above, the Commissioner typically uses a
sequential five-step process to determine whether a claimant is disabled within the meaning of the
Social Security Act. 20 C.F.R. § 404.1520; see also Waters v. Barnhart, 276 F.3d 716, 718 (5th
Cir. 2002). The analysis is:
First, the claimant must not be presently working. Second, a claimant must establish
that he has an impairment or combination of impairments which significantly limit
[his] physical or mental ability to do basic work activities. Third, to secure a finding
of disability without consideration of age, education, and work experience, a
claimant must establish that his impairment meets or equals an impairment in the
appendix to the regulations [“The Listings”]. Fourth, a claimant must establish that
his impairment prevents him from doing past relevant work. Finally, the burden
shifts to the Secretary to establish that the claimant can perform the relevant work.
If the Secretary meets this burden, the claimant must then prove that he cannot in
fact perform the work suggested.
See Waters, 276 F.3d at 718 (quoting Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991)); see
generally § 404.1520. The claimant bears the burden of proof with respect to the first four steps
of the five-step analysis. Waters, 276 F.3d at 718. If at any step the Commissioner finds that the
claimant is or is not disabled, the ALJ need not continue the analysis. Leggett v. Chater, 67 F.3d
558, 564 (5th Cir. 1995).
Reviewing courts give the Commissioner’s decisions great deference. Id. at 565-66.
Courts may not re-weigh evidence, try issues de novo, or substitute their judgments for those of
the Commissioner. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1995). A court cannot reverse
the Commissioner simply because the court might have decided the case differently in the first
instance. Elfer v. Texas Workforce Comm’n, 169 F. App’x 378, 380 (5th Cir. 2006); Ripley v.
Chater, 67 F.3d 552, 555 (5th Cir. 1995) (stating that the court may not “substitute [its] judgment
for that of the Secretary”). When the Commissioner fails to apply correct principles of law, or
when substantial evidence does not support the Commissioner’s decision, the governing statute
authorizes a reviewing court to enter, upon the pleadings and the transcript of the record, a
judgment modifying, or reversing the decision of the Commissioner of Social Security, with or
without remanding the cause for a rehearing. See 42 U.S.C. § 405(g). Thus, courts have the power
to remand for further administrative proceedings, or they may direct the Commissioner to award
benefits without a rehearing. Ordinarily, courts remand for further administrative proceedings to
address and cure deficiencies. See, e.g., Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).
Stogner raises the following issues on appeal: (1) whether the ALJ erred by failing to
properly consider the effects of the severe impairment of alcohol abuse on his residual functional
capacity; (2) whether the ALJ failed to properly evaluate his credibility; and (3) whether the ALJ’s
Step 5 determination is supported by substantial evidence.
Issue One: whether the ALJ erred by failing to properly consider the effects of severe
impairment of alcohol abuse on Stogner’s residual functional capacity
Stogner argues that the ALJ erroneously failed to account for the limiting effects of alcohol
abuse as a severe impairment when assessing his residual functional capacity (RFC), rendering the
RFC and finding of non-disability unsupported by substantial evidence. He argues that the ALJ
must consider limitations resulting from all his severe impairments when formulating the RFC and
contends that the ALJ should have possibly included a limitation that he not be exposed to alcohol
or other addictive substances while on the job.
The Commissioner replies that the ALJ properly considered Stogner’s alcohol abuse
symptoms during the first part of the bifurcated analysis, finding him to be disabled under the
appropriate listings. According to the Commissioner, the ALJ continued to the second part of the
analysis and determined that finding that his alcohol abuse was a contributing factor material to
the determination of his disability and there was no requirement to incorporate the alcohol related
symptoms into the RFC.
The Act prohibits the Commissioner from awarding benefits to a disabled person if drug
addiction or alcoholism would be “a contributing factor material to the Commissioner’s
determination that the individual is disabled.” See Brown v. Colvin, 2014 WL 351647 (N.D. Tex.
Jan 31, 2014); 42 U.S.C. § 423(d)(2)(C). Where a claimant is found disabled and there is evidence
of drug or alcohol abuse, the regulations provide a process for evaluating the materiality of the
alleged drug or alcohol abuse. See 20 C.F.R. §§ 404.1535(b); 416.935. The key factor in this
process is whether the Commissioner would still find the claimant disabled if he stopped using
drugs or alcohol.
Id., §§ 404.1535(b)(1); 416.935(b)(1).
This determination requires the
Commissioner to first evaluate which physical and mental limitations would remain if the claimant
discontinued his drug and alcohol use and then determine whether any remaining limitations would
be disabling. Id.; §§ 404.1535(b)(2); 416.935(b)(2). Whether the drug or alcohol abuse is a
contributing factor material to the disability determination depends on whether the limitations
remaining after stopping the drug and alcohol use are sufficient, by themselves, to support a finding
of disability. See Snodgrass v. Colvin, No. 11-CV-0219-P, 2013 WL 4223640, at *2 (N.D. Tex.
Aug. 13, 2013). If the remaining limitations are not disabling, the claimant’s drug and alcohol
abuse is a material factor to the disability determination and an award of benefits is not appropriate.
20 C.F.R. §§ 404.1535(b)(2)(i); 416.935(b)(2)(i). However, if the remaining limitations are
disabling, then drug or alcohol abuse is not a material factor and the claimant is entitled to benefits
because he is disabled independent of his drug addiction or alcoholism.
20 C.F.R. §§
404.1535(b)(2)(ii); 416.935(b)(2)(ii). The claimant bears the burden of proving that drug or
alcohol addiction is not a contributing factor to his disability. Brown v. Apfel, 192 F.3d 492, 498
(5th Cir. 1999).
This Court finds that the ALJ properly utilized § 404.1535 in making the determination
that that Stogner was not disabled. After first finding him disabled, the ALJ properly sought to
determine whether Stogner’s alcoholism was a factor material to his disability. She correctly
evaluated what, if any, mental or physical limitations would be remaining if Stogner discontinued
his alcohol abuse, and found that they were not disabling. Regarding Stogner’s mental issues, the
ALJ determined that he would have only mild limitations in the activities of daily living, social
functioning, and concentration if the substance abuse ceased. Because there were no episodes of
decompensation and because the limitations set forth above were considered “mild” it was
determined that the limitations would be non-severe if the alcohol abuse was stopped. See 20
C.F.R. §§ 404.1520a(d)(1) and 416.920a(d)(1).
Stogner’s argument that the ALJ should have considered the effects of his alcoholism at
the second stage of the bifurcated process is nonsensical. As stated above, the Act prohibits the
Commissioner from awarding benefits to a disabled person if drug addiction or alcoholism would
be a contributing factor material to the Commissioner’s determination that the individual is
disabled. The ALJ determined that Stogner’s alcoholism was a contributing factor material to his
disability and properly turned her attention to the limitations what would remain if he were to stop
abusing alcohol. The ALJ determined that the remaining limitations would not prohibit Stogner
from performing his past employment. It would defeat the purpose of the regulations to require
the ALJ to look again and consider alcohol related limitations to evaluate whether or not Stogner
was disabled at the second stage of the process, when she had already determined that alcohol
abuse was a contributing factor material to his disability. Further, it would allow Stogner to receive
disability based on limitations relating to alcohol abuse which is in contravention of the regulation.
No error is shown.
Issue Two: whether the ALJ failed to properly evaluate Stogner’s credibility
Stogner argues that the ALJ’s credibility determination is not supported by substantial
evidence, contending that the ALJ failed to utilize the factors set forth in 20 C.F.R §§ 404.1529(c)
and 416.929(c) and relied upon misstatement of facts. The Commissioner replies that the ALJ’s
credibility determination is supported by substantial evidence.
An ALJ has discretion to judge a claimant’s credibility and must evaluate subjective
complaints in light of the objective medical evidence on record. Foster v. Astrue, 277 Fed. Appx.
462, 464 (5th Cir. 2008). Credibility determinations are generally entitled to great deference.
Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000).
Recently, in March 2016, Social Security Ruling 16-3p superseded Social Security Ruling
96-7p. SSR 16-3P. (S.S.A. Mar. 16, 2016.) SSR 16-3p eliminated the use of the term “credibility”
in evaluating an individual’s subjective symptom evaluation. Id. Now, in determining whether an
individual is disabled, the ALJ is to consider all of the individual’s symptoms, including pain, and
the extent to which the symptoms can reasonably be accepted as consistent with the objective
medical and other evidence in the individual’s record. Id. A symptom is the individual’s own
description or statement of his or her physical or mental impairment(s). See 20 C.F.R. §§
404.1528(a) and 416.928(a).
Under the regulations, an individual’s statements of symptoms alone are not enough to
establish the existence of a physical or mental impairment or disability. SSR 16-3P. However, if
an individual alleges impairment-related symptoms, the ALJ must evaluate those symptoms using
a two-step process set forth in the regulations. See 20 C.F.R. §§ 404.1529 and 416.929. First, the
ALJ must consider whether there is an underlying medically determinable physical or mental
impairment(s) that could reasonably be expected to produce an individual’s symptoms, such as
pain. Id. Second, once an underlying physical or mental impairment(s) that could reasonably be
expected to produce an individual’s symptoms is established, the ALJ evaluates the intensity and
persistence of those symptoms to determine the extent to which the symptoms limit an individual’s
ability to perform work-related activities. Id.
In addition to using all of the evidence to evaluate the intensity, persistence, and limiting
effects of an individual’s symptoms, the ALJ will also use the factors set forth in 20 C.F.R. §§
404.1529(c)(3) and 416.929(c)(3), which includes:
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the individual’s pain or
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received
for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to relieve
pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to
20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual’s functional limitations and
restrictions due to pain or other symptoms.
SSR 16-3p. Although the ALJ is not required to “follow formalistic rules in his articulation” of
choices, the administrative decision should be sufficiently specific to make clear that these factors
were considered. See Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994); Abshire v. Bowen, 848
F.2d 638, 642 (5th Cir. 1988); see also Hillman v. Barnhart, 170 F. App’x 909, 913, 2006 WL
690879, *3 (5th Cir. March 20, 2006) (holding that ALJ was not required to “explicitly discuss
every factor set forth in the regulations . . . [when] the ALJ elicited the pertinent information from
[plaintiff] . . . [and] remand would be fruitless in light of the lack of objective medical evidence in
the record to support [plaintiff]’s allegations of disabling back pain.”).
The ALJ in this case set forth the appropriate standard for evaluating Stogner’s credibility
and stated in his decision that he considered the entire case record. Stogner had related that his
impairments interfered with his ability to lift, stand, walk, bend, climb and squat. He estimated
that he could only walk a couple of blocks before needing to stop and rest and that his medications
cause side effects such as drowsiness and dizziness. However, the ALJ noted that Stogner
acknowledges that he is able to shop in stores, manage finances, cook, load and unload the
dishwasher, sweep, mow the lawn, and perform self-care and personal hygiene tasks. Stogner’s
brother confirmed Stogner’s daily activities in his answers in a function report.
The ALJ noted that the State Agency medical consultant opined that Stogner could perform
medium work. Dr. Jerry Loving, D.O. opined that Stogner only had mild limitations in walking,
standing, lifting, and carrying secondary to his back and knee pain. Dr. Loving’s records indicated
that Stogner had minimal remarkable findings upon physical examination. The ALJ commented
that Dr. Loving’s assessment of Stogner’s ability to work appeared to be based on subjective
complaints because there were a lack of findings in the imaging studies. It appeared to the ALJ
that the record included no further significant complaints regarding back or knee pain after March
29, 2013, which indicated to the ALJ that Stogner obtained adequate control of his back and knee
issues with his current pain medication and self-care techniques.
Regarding his shoulder complaints, the ALJ noted that imaging studies performed in 2013
showed no significant abnormalities including no evidence of degenerative changes. Stogner
testified at the hearing that after his shoulder surgery in March 2004, he began taking hydrocodone
for shoulder related discomfort, but there were no records to support this assertion.
Stogner complains that the ALJ erred when assessing his credibility when calling into
question his statement that he feels more comfortable standing and walking (rather than sitting)
due to back pain and when the ALJ noted that he testified that he stopped drinking without help
but failed to testify that he obtained a new prescription for Xanax at that time. Regardless of
whether or not these two observations by the ALJ were a proper basis to evaluate Stogner’s
credibility, the reasons set forth above constitute substantial evidence to support the ALJ’s
Further, the ALJ utilized the factors set forth in 20 C.F.R. §§ 404.1529(c)(3) and
416.929(c)(3) when she considered Stogner’s daily activities, the location of his pain, factors (such
as sitting) which aggravate his symptoms, his medications, and other treatment he has received
for his back and shoulder problems. Substantial evidence supported the credibility determination
and no error is shown.
Issue Three: whether the ALJ’s Step 5 determination is unsupported by
Stogner argues that the ALJ’s Step 5 determination that he is capable of performing past
work as a bar manager is not supported by substantial evidence because the ALJ failed to consider
all of his impairments (alcohol abuse) in formulating the hypothetical to the VE.
Commissioner responds that this is a Step 4 determination and vocational expert testimony is not
required at this step. Further, the Commissioner asserts that Stogner’s claim of error involves a
function outside the scope of the VE’s role at the hearing.
As stated above, the ALJ properly utilized § 404.1535. After finding Stogner disabled
(considering his alcohol abuse) the ALJ considered what, if any, mental or physical limitations
would be remaining if Stogner discontinued his alcohol abuse, and found that those they were not
disabling, determining that he would have only mild limitations in the activities of daily living,
social functioning, and concentration if the substance abuse ceased. Again, it would defeat the
purpose of the regulations to require the ALJ to look again and consider alcohol related limitations
to evaluate whether or not Stogner was disabled at the second stage of the process. No error is
WHEREFORE, PREMISED CONSIDERD, it is ORDERED that Stogner’s action against
the Commissioner of Social Security Administration is DISMISSED WITH PREJUDICE.
SIGNED this the 8th day of March, 2018.
KEITH F. GIBLIN
UNITED STATES MAGISTRATE JUDGE
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