Paniagua v. Colvin

Filing 28

MEMORANDUM DECISION AND ORDER - It is therefore ordered that the ALJs decision is REVERSED AND REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for the purpose of conducting additional proceedings as set forth herein. The Clerk of this Court is directed to enter judgment remanding this case. Signed by Judge Ted Stewart on 4/2/14. (ss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
GLORIA S. PANIAGUA,
MEMORANDUM DECISION AND
ORDER ON ADMINISTRATIVE APPEAL

Plaintiff,
v.
CAROLYN W. COLVIN, in her capacity as
Acting Commissioner of the Social Security
Administration,

Case No. 2:12-CV-1186 TS
District Judge Ted Stewart

Defendant.

This matter is before the Court on Plaintiff Gloria S. Paniagua’s appeal from the decision
of the Social Security Administration denying her application for Social Security Disability
Insurance Benefits (“SSDI”) and Supplemental Security Income benefits (“SSI”). Having
considered the arguments of the parties, reviewed the record and relevant case law, and being
otherwise fully informed, the Court will reverse the administrative ruling.
I. STANDARD OF REVIEW
This Court’s review of the administrative law judge’s (“ALJ”) decision is limited to
determining whether his findings are supported by substantial evidence and whether the correct
legal standards were applied. 1 Substantial evidence means “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” 2 The ALJ is required to

1

Rutledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000).

2

Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996).

1

consider all of the evidence, although he is not required to discuss all of the evidence. 3 If
supported by substantial evidence, the Commissioner’s findings are conclusive and must be
affirmed. 4 The Court should evaluate the record as a whole, including that evidence before the
ALJ that detracts from the weight of the ALJ’s decision. 5 However, the Court should not reweigh the evidence or substitute its judgment for that of the ALJ’s. 6
II. BACKGROUND
A.

PROCEDURAL HISTORY
On June 3, 2010, Plaintiff filed for SSDI and SSI, alleging a disability onset date of June

1, 2010. Plaintiff’s claims were denied both initially and on reconsideration. Plaintiff attended a
hearing before an ALJ on September 1, 2011. On September 20, 2011, the ALJ denied
Plaintiff’s claims. Plaintiff requested review by the Appeals Council, but was denied on October
19, 2012. This appeal followed.
B.

MEDICAL HISTORY
Plaintiff claims disability as a result of several impairments, including lower back pain,

depression, asthma, bronchitis, anemia, bipolar disorder, post-traumatic stress disorder, and
suicidal ideation. 7 Plaintiff has a long history of self-harm, including numerous suicide attempts
beginning in 1988, and has struggled with suicidal ideation since childhood. 8 She also reports a

3

Id.

4

Richardson v. Perales, 402 U.S. 389, 402 (1981).

5

Shepard v. Apfel, 184 F.3d 1196, 1199 (10th Cir. 1999).

6

Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).

7

R. at 232.

8

Id. at 71.

2

“lifelong struggle with anger and bad thoughts.” 9 The record contains medical records from
2010 through 2012.
1. Treating Physicians
On March 19, 2010, after being found difficult to rouse, Plaintiff was taken by ambulance
to the emergency department at Salt Lake Regional Hospital. 10 Plaintiff admitted to taking
Zoloft in a suicide attempt. The attending physician, Dr. Roberts, diagnosed nontoxic ingestion
of Zoloft (intentional overdose), alcohol ingestion, and self-harm ideation. 11
On May 6, 2010, Plaintiff was seen at the University of Utah emergency room for an
overdose of Tylenol and possibly Geodon. 12 The attending physician, Dr. Freeman, assessed
Plaintiff for Tylenol overdose and polysubstance abuse. 13 The following day, Dr. Lewis, another
treating physician who saw Plaintiff during the same episode, diagnosed bipolar disorder not
otherwise specified, posttraumatic stress disorder, alcohol abuse, cocaine abuse, and personality
disorder cluster B traits. As part of Plaintiff’s treatment plan, she was admitted for further
inpatient care by Dr. Singh. 14 Dr. Lewis also noted that Plaintiff had experienced a sexual
assault at the age of twenty-seven or twenty-eight and that it is “unclear to what extent her

9

Id. at 740.

10

Id. at 461.

11

Id. at 462.

12

Id. at 342.

13

Id. at 344.

14

Id. at 340.

3

activation is secondary to features of posttraumatic stress disorder.” 15 Even so, he notes that
hypomania precedes her sexual trauma. 16
On July 7, 2010, Plaintiff saw Joel Hunt, PA-C, in order to establish a relationship with a
primary care health provider and seek medication for bipolar. 17 At that time, Plaintiff indicated
that she last used alcohol on July 3, 2010, and indicated that she had recently been in a fight with
a neighbor. 18
On July 23, 2010, Plaintiff was taken by ambulance to the University of Utah
emergency department for having taken an overdose of Depakote and Trazodone with the intent
to kill herself. 19 On admission, Plaintiff reported that she had not consumed alcohol since her
May 2010 hospitalization, but then stated that she had consumed alcohol on three occasions
since her release from the hospital in May 2010. She admitted that she had used cocaine,
smoked spice, and had consumed alcohol the night before the overdose. 20 Plaintiff’s history and
physical on admission, authored by Dr. Howsley and signed by the attending physician Dr.
Singh, noted that Plaintiff attempted to end her life and that “[t]his [wa]s done in the context of
increased alcohol use, recent eviction, the patient’s daughter moving away and financial
problems as well as the patient not taking her medications for her bipolar disorder.” 21 Dr.
Nemethy, in her report on Plaintiff during this same incident, noted that Plaintiff had not taken
15

Id.

16

Id.

17

Id. at 401.

18

Id.

19

Id. at 330.

20

Id. at 331.

21

Id. at 334.

4

her prescription medication for one to two weeks prior to the suicide attempt and that Plaintiff
“[u]ses alcohol regularly.” 22 Plaintiff was discharged on July 26, 2010. 23
On August 4, 2010, Plaintiff saw Mr. Hunt again. He diagnosed chronic hepatitis C,
hypothyroidism, and depression, and prescribed medication. 24 He informed Plaintiff that she
should stop drinking alcohol, “which she does regularly on the weekend.” 25 Plaintiff stated that
“she does not have a problem [with alcohol] and she has been kind of looking for a reason to
stop drinking for a while so she will be happy to stop drinking.” 26
On September 30, 2010, Plaintiff again saw Mr. Hunt and stated she was “generally
doing well and handling the stress of leaving her boyfriend without using alcohol.” 27 He found
Plaintiff to be in no acute distress, normal appearance and affect, euthymic mood, and no thought
impairment. 28 However, he noted that she had increased anxiety. 29 On October 14, 2010, Mr.
Hunt noted during a visit with Plaintiff that she was doing well on her psychiatric medications
and “[i]f she accidentally misses a day from her Depakote she can feel the difference in her
ability to control impulse and anger.” 30 Plaintiff saw Mr. Hunt again on November 22, 2010, at
which time she indicated she has had “terrible thoughts” of hurting someone. 31 She indicated
22

Id. at 321.

23

Id. at 347.

24

Id. at 396.

25

Id.

26

Id.

27

Id. at 509.

28

Id. at 509–13.

29

Id.

30

Id. at 502.

31

Id. at 740.
5

that she left her medications at her boyfriend’s house and then did not return to get them for five
days. 32 She also indicated that she took several Trazodone and cut her left wrist several times
because she likes to see the blood come out. 33
The record also contains numerous individual psychotherapy notes from Valley Mental
Health where Plaintiff met with Paul Rasmussen, LCSW, and Margo Stevens, APRN. These
notes indicate that on July 27, 2010, after discharge from the hospital, Plaintiff saw Mr.
Rasmussen to set recovery goals. Mr. Rasmussen noted that Plaintiff had severe bipolar disorder
with psychotic features and that she “endorses episodes of mania characterized by decreased
need for sleep, inflated self-esteem, increased goal-directed activity, elated mood, increased
energy, hypersexuality and irresponsible spending.” 34 Additionally, on August 23, 2010,
Plaintiff saw Mr. Rasmussen, complaining that her medications made her feel numb to the point
that she could not feel or think. 35 At this meeting, she disclosed that her son-in-law was found
dead of an overdose. 36 Plaintiff also indicated she was “clean and sober for the past three
weeks.” 37 Mr. Rasmussen noted that, “[t]his is apparently very new for her. She reports being
drunk most of the time prior to this, which is not consistent with her report at intake.” 38

32

Id.

33

Id.

34

Id. at 461.

35

Id. at 435.

36

Id.

37

Id.

38

Id.

6

On October 5, 2010, Plaintiff saw Margo Stevens at Valley Mental Health and requested
medication for manic depression. 39 Plaintiff reported feeling edgy and noted stress and
frustration over being homeless. 40 Ms. Stevens noted that Plaintiff misunderstood her Depakote
instructions and was improperly taking a smaller dose than prescribed. 41 Ms. Stevens noted that
Plaintiff was dressed casually, was well groomed, and had painted toenails and well-manicured
fingernails. 42 Plaintiff reported having low tolerance for dealing with stress and frustration but
calmed down as the interview progressed. 43 Ms. Stevens noted that Plaintiff’s alcohol abuse
was in early full remission. 44 Ms. Stevens also noted that at this session Plaintiff “describe[d]
herself as an alcoholic having consumed excessive amounts of beer over the years.” 45
However, by December 13, 2010, Plaintiff reported that she was drinking beer again.
Mr. Rasmussen noted that “[a]s is typical for [Plaintiff] when she has money, she has been
drinking beer.” 46 She also reported going off her medication about three weeks prior and being
more irritable. 47 Because Plaintiff had received Medicaid, Mr. Rasmussen transferred Plaintiff
to a different program—North Valley Adult Outpatient (“North Valley”). 48 In January 2011,

39

Id. at 454.

40

Id.

41

Id.

42

Id. at 455.

43

Id. at 455–56.

44

Id. at 456.

45

Id. at 455.

46

Id. at 715.

47

Id.

48

Id.

7

Plaintiff saw Ms. Stevens again, requested medication refills, and was prescribed Depakote,
Trazodone, and Zyprexa. 49
On February 8, 2011, Plaintiff saw Heather Bath, SSW, at North Valley. Plaintiff told
Ms. Bath that she was an alcoholic and wanted “to stop drinking.” 50 During that same session,
Plaintiff indicated that she used alcohol to wake up and that people criticized her drinking. 51 Ms.
Bath noted that Plaintiff “recognized many of her problems were due to drinking and she was
ready to quit” and that “there were periods of time she did not remember due to being drunk,”
but that “she was ready to go to detox and get sober.” 52
That same day, Plaintiff saw Dr. Meredith Alden, noting that she had not taken
medications for two months and wanted to resume medications. 53 She was prescribed Depakote,
Zyprexa, and Trazodone. 54
On June 1, 2011, Plaintiff met with Candice Adair, SSW, and discussed her previous goal
to stop drinking.

55

Plaintiff indicated that she was ambivalent about her previous goal to quit

drinking. Plaintiff indicated she was not sure she wanted to quit and said “I can stop drinking
and feel awful, or I can keep drinking and feel ok.” 56 One week later, Plaintiff told Ms. Adair
that she wanted to see a doctor about taking Antabuse in order to keep her from drinking.

49

Id. at 717.

50

Id. at 778.

51

Id.

52

Id.

53

Id. at 779.

54

Id.

55

Id. at 782.

56

Id.

8

Plaintiff admitted to drinking beer the day before the appointment and noted that she was
worried about how Father’s Day would impact her because of the death of her father. 57
On July 20, 2011, Plaintiff saw Dr. Alden and admitted that she had stopped taking her
medications shortly after her last visit in February 2011. 58
2. State Agency Physicians
In October 2010, Dr. Zone, a state agency psychologist, reviewed the evidence in this
case and noted Plaintiff suffers from bipolar disorder, alcohol abuse, and personality disorder not
otherwise specified. 59 Despite these impairments, Dr. Zone stated that Plaintiff could perform
low stress, low social contact work. 60 Also in October 2010, Dr. Susanne Throbe, a state agency
physician, reviewed the evidence and stated Plaintiff was “capable of simple, low stress work
with her physical allegations being nonsevere.” 61
In March 2011, as part of the reconsideration process, Robert Finley, a state agency
psychologist, reviewed the evidence and stated that Plaintiff could perform unskilled work with
limited exposure to others. 62 The following day, Rox Burkett, a state agency physician,
reviewed the evidence and found Plaintiff’s physical medical complaints to be nonsevere. 63

57

Id. at 783.

58

Id. at 787.

59

Id. at 531.

60

Id. at 531–33.

61

Id. at 529–30.

62

Id. at 776.

63

Id. at 777.

9

C.

HEARING TESTIMONY
At the hearing, the ALJ received testimony from Plaintiff and a vocational expert.

Plaintiff, in discussing her trouble with suicide, indicated that her first suicide attempt occurred
in 1988. 64 However, she describes suicidal ideation as far back as she can remember and
described her mother as physically and emotionally abusive and her father as an alcoholic. 65 She
indicated she started drinking when she was about twenty-six years old and indicated that her
drinking escalated when she was about thirty-two. 66 Plaintiff admitted that she drinks alcohol
“[w]henever it’s offered” and elaborated that usually she drinks every other day or every three
days. 67 Plaintiff later noted that she drinks at least once a week and that when she drinks she
drinks about eight beers. 68 She indicated, “I don’t think alcohol is an issue, I think it’s my
depression.” 69
Plaintiff testified that she was prescribed medication to help with the suicidal ideation,
but she stopped taking her prescription medications when she transferred from the Fourth Street
Clinic to Medicaid because she could not afford the Medicaid co-pay for her medications. 70
During the hearing, Plaintiff also discussed her work history as a cashier and described
trouble staying focused and having a temper.

64

Id.

66

Id. at 63.

67

Id. at 64.

68

Id. at 89.

69

Id. at 63.

70

Id. at 59.

71

She also described a temporary position at

Id. at 61.

65

71

Id. at 69–70.

10

Rocky Mountain Racetrack, a position that she stopped attending when she put her hand in a
snow-cone machine despite being told not to do so and cut her finger and nail. 72
D.

VOCATIONAL EXPERT
Kent Granat, a vocational expert, testified that Plaintiff had past work experience as a

hospital housekeeper, a hand packager, a cashier, and a Mexican food maker. 73 The ALJ asked
Mr. Granat to assume a hypothetical individual with the same vocational characteristics as the
Plaintiff—same age, education, work experiences, and limitations. 74 Mr. Granat testified that
such a hypothetical individual could perform her past work as a hospital housekeeper, hand
packager, and Mexican food maker but could not perform the cashier and child monitor
positions.75 Limiting the hypothetical individual to light work only would preclude the hospital
housekeeper and hand packager position, but would still allow the individual to work as a
Mexican food maker. 76
E.

THE ALJ’s DECISION
The ALJ followed the six-step 77 sequential evaluation process in deciding Plaintiff’s

claim. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity since June 1, 2010, the alleged disability onset date. 78

72

Id. at 69.

73

Id. at 94.

74

Id. at 94–96.

75

Id. at 96.

76

Id. at 97.

77

Typically the ALJ proceeds through a five-step inquiry. However, in evaluating
whether drug and alcohol addiction is material, the ALJ conducts a sixth step to determine
whether the claimant’s other impairments would “improve to the point of nondisability in the
absence of DAA.” SSR 13-2p, 78 Fed. Reg. 11,939, 11,941 (Feb. 20, 2013).

11

At step two, the ALJ found that Plaintiff suffered from the following severe impairments:
continuous alcohol abuse, bipolar disorder, and personality disorder. 79
At step three, the ALJ found that Plaintiff’s impairments, when considering all
impairments including the drug and alcohol addiction (“DAA”), met or equaled a listed
impairment. 80
At step four, the ALJ found that in the absence of alcohol abuse, Plaintiff would have the
residual functional capacity to perform a full range of work at all exertional levels with certain
limitations, including limiting her to simple, routine work with little decisionmaking, limiting her
job-related contact with others, and limiting the amount of changes in her routine. 81
At step five, the ALJ found that, if Plaintiff stopped the DAA, there would be jobs in the
national economy that Plaintiff could perform, including her past relevant work as a hospital
housekeeper, hand packager, and Mexican food maker. 82 He further found that if she stopped
the substance abuse, she would be able to perform the work requirements and the requirements
would not be precluded by her residual functional capacity. 83
At step six, the ALJ found that if Plaintiff stopped abusing alcohol, her impairments
would no longer meet the criteria for the listings, meaning the ALJ found that without the
alcohol abuse, Plaintiff would not be disabled. 84
78

R. at 25.

79

Id.

80

Id.

81

Id. at 28.

82

Id. at 33.

83

Id.

84

Id. at 27.
12

III. DISCUSSION
Plaintiff contends that the ALJ opinion is not supported by substantial evidence and that
the ALJ erred by failing to apply the correct legal standard to the DAA determination and the
DAA materiality determination. Plaintiff raises the following issues in her brief: (1) whether the
ALJ erred in his DAA determination, (2) whether the record contains a DAA diagnosis by an
acceptable medical source, (3) whether the ALJ erred in his DAA materiality analysis, (4)
whether a medical source must address whether or not Plaintiff’s other impairments would
improve in the absence of DAA, (5) whether the ALJ’s DAA determination is supported by
substantial evidence, and (6) whether the ALJ properly addressed step four even though he did
not make findings concerning the mental demands of Plaintiff’s past work.
A.

DAA DETERMINATION
Pursuant to the Social Security Act, disability due to DAA is not a proper basis for an

award of benefits if DAA is a contributing factor material to the determination of disability. 85
Plaintiff first argues that the ALJ erred by failing to apply Social Security Ruling 13-2p 86
(“SSR 13-2p” or “the Ruling”) in determining that Plaintiff has DAA. SSR 13-2p is a recent
ruling that explains the SSA’s policies for considering drug and alcohol addiction. While it is
true the ALJ did not specifically rely on SSR 13-2p, the ALJ is excused from doing so because
the Ruling was issued on February 20, 2013—almost a year and a half after the ALJ issued his
opinion in this matter.
85

42 U.S.C. § 423(d)(2)(C).

86

SSR 13-2p, 78 Fed. Reg. 11,939, was released by the Social Security Administration
on February 20, 2013—after the ALJ conducted his hearing and issued a decision in this case.
However, both parties cite to this document in their briefing, and to the extent it is helpful, the
Court relies on it throughout.

13

The Ruling, which both parties cite to in their briefing, provides a six step evaluation
process for determining DAA materiality. That process is as follows: First, does the claimant
have DAA? Second, is the claimant disabled considering all impairments including DAA?
Third, is DAA the only impairment? Fourth, is the other impairment disabling by itself while the
claimant is dependent upon or abusing drugs or alcohol? Fifth, does the DAA cause or affect the
claimant’s medically determinable impairments? Sixth, could the other impairments improve to
the point of nondisability in the absence of DAA?
The ALJ conducted this analysis and concluded that Plaintiff’s impairments would
improve to the point of nondisability in the absence of DAA. Even without the guidance of SSR
13-2p, the ALJ’s decision on DAA comported with controlling law. In deciding a disability
claim involving DAA, the ALJ should conduct the sequential evaluation without separating out
the impact of DAA. 87 If the ALJ finds a claimant to be disabled, and there is medical evidence
of DAA, then the ALJ should determine whether the claimant would still be disabled if she
stopped using drugs or alcohol. 88
The ALJ in this case followed the six-step rubric. He found that Plaintiff’s impairments,
including her substance use disorder, met listing §§ 12.04, 12.08, and 12.09. 89 He then found
that if Plaintiff stopped her substance abuse she would continue to have “a severe impairment or
combination of impairments.” 90 He then found that if she stopped the substance abuse, Plaintiff

87

SSR 13-2p, 78 Fed. Reg. 11,939; Drapeau v. Massanari, 255 F.3d 1211, 1214–15
(10th Cir. 2001).
88

Drapeau, 255 F.3d at 1214.

89

R. at 25.

90

Id. at 26.

14

would not have an impairment or combination of impairments that meets or medically equals
listing §§ 12.04 or 12.08, or any other listing. 91 The ALJ did not err in his application of the law
to his DAA determination.
B.

ACCEPTABLE MEDICAL SOURCE
Plaintiff next argues that the ALJ erred in applying a DAA analysis because the record

did not contain a diagnosis of substance use disorder by an acceptable medical source. DAA is
defined as a Substance Use Disorder by the Diagnostic and Statistical Manual of Mental
Disorders (DSM) and “[i]n general, the DSM defines Substance Use Disorders as maladaptive
patterns of substance use that lead to clinically significant impairment or distress.” 92 SSR 13-2p
also notes that there must be “objective medical evidence—that is, signs, symptoms, and
laboratory findings—from an acceptable medical source that supports a finding that the claimant
has DAA.” 93 Acceptable medical sources under the current regulations include licensed
physicians and licensed and certified psychologists. 94
The ALJ found that there was substantial medical evidence of DAA by acceptable
medical sources in Plaintiff’s record. On May 6, 2010, Dr. Freeman diagnosed Plaintiff with
“polysubstance abuse.” 95 Dr. Freeman was the attending physician who saw Plaintiff in the
emergency department on May 6, 2010, after an intentional overdose. 96 The following day, Dr.
Lewis, another treating physician, diagnosed bipolar disorder not otherwise specified,
91

Id. at 27.

92

SSR 13-2p, 78 Fed. Reg. at 11940.

93

Id.

94

See 20 C.F.R. §§ 404.1513(a), 416.913(a).

95

R. at 344.

96

Id. at 342.

15

posttraumatic stress disorder, alcohol abuse, cocaine abuse, and personality disorder cluster B
traits. 97 In October 2010, Dr. Zone, a state agency psychologist reviewed the evidence and
diagnosed Plaintiff with bipolar disorder, alcohol abuse, and personality disorder not otherwise
specified. 98 These are the type of acceptable medical sources and the type of objective medical
evidence the Ruling contemplates.
SSR 13-2p also notes that “even when we have objective medical evidence, we must also
have evidence that establishes a maladaptive pattern of substance use and the other requirements
for diagnosis of a Substance Use Disorder(s) in the DSM.” 99 There is sufficient evidence in the
record from which the ALJ could find a maladaptive pattern of substance use. Therefore, the
Court finds that there is substantial evidence to support the ALJ’s finding of DAA.
C.

DAA MATERIALITY ANALYSIS
Plaintiff next argues that the ALJ erred in finding that Plaintiff’s DAA was material to

the determination of disability because her other impairments would not improve in the absence
of DAA and that Plaintiff’s symptoms actually worsen in the absence of alcohol use. Plaintiff
argues that the ALJ erred by not considering periods of abstinence and that the ALJ was
“required to do more than simply conclude that in the absence of alcohol use Paniagua would not
be disabled” absent DAA. 100

97

Id. at 340.

98

Id. at 531.

99

SSR 13-2p, 78 Fed. Reg. at 11,944.

100

Docket No. 18, at 11.

16

To the extent that Plaintiff argues the ALJ improperly applied the law regarding DAA
materiality, Plaintiff’s argument fails for the reasons stated above. To the extent that Plaintiff
argues there is not substantial evidence to make such a materiality finding, the Court agrees.
If a claimant is determined to be disabled, “we must then determine whether the claimant
would continue to be disabled if he or she stopped using drugs or alcohol; that is, we will
determine whether DAA is ‘material’ to the finding that claimant is disabled.” 101
The ALJ must review the record as a whole and cannot engage in “selective and
misleading evidentiary review.” 102 “[I]f the effects of a claimant’s mental impairments cannot
be separated from the effects of substance abuse, the DAA is not a contributing factor material to
the disability determination.” 103
Here, the ALJ followed this procedure by first finding Plaintiff disabled under the initial
5-step inquiry, but then found that claimant would not be disabled in the absence of DAA. The
ALJ found that absent DAA, Plaintiff would have only mild restrictions on her activities of daily
living, moderate difficulties in social functioning, and moderate restrictions on concentration,
persistence and pace. 104 The ALJ’s determination that Plaintiff would not be disabled absent her
disability is not supported by substantial evidence. In making this finding, the ALJ engaged in
selective and misleading evidentiary review of the record.

101

SSR 13-2p, 78 Fed. Reg. at 11,940.

102

Sherman v. Apfel, 141 F.3d 1185, 1998 WL 163355, at *6 (10th Cir. April 8, 1998)
(unpublished table decision) (citing Teter v. Heckler, 775 F.2d 1104, 1106 (10th Cir. 1985)).
103

Salazar v. Barnhart, 468 F.3d 615, 623 (10th Cir. 2006).

104

R. at 27, 31.

17

As for activities of daily living without DAA, the ALJ mischaracterized the level of
Plaintiff’s daily activities. In August 2010, Plaintiff filled out forms containing questions about
her daily activities and the effect of her impairments on those activities. 105 From this, the ALJ
found that Plaintiff “cooks, cleans, watches movies, reads, shops, pays bills, attends
appointments, walks, rides a bike, and uses public transportation to get around.” 106
However, in so describing Plaintiff’s activities, the ALJ ignored other statements on the
same form that evidence limitations on Plaintiff’s activities. For instance, in concluding that
Plaintiff cooks, the ALJ neglected to note that she prepares “sandwiches, [and] can[ned] food [in
a] microwave.” 107 While Plaintiff noted that when she goes out she travels by public
transportation, walking, and riding a bicycle, she also noted that she does not go out often. 108 On
the same form Plaintiff was asked how often she goes out and Plaintiff filled in, “just to throw
trash. I don’t like to face people.” 109 The same form asked Plaintiff to list the places she goes on
a regular basis; Plaintiff wrote, “No where, only appts.” 110 A closer examination of the record
also indicates that while Plaintiff indicates that she likes reading, she testified that after having a
book for about four months, she is on about page 100. 111 In an hour period of time, Plaintiff can

105

R. at 265–72.

106

Id. at 31.

107

Id. at 267.

108

Id. at 268.

109

Id.

110

Id. at 270.

111

Id. at 77.
18

stay focused on reading for about five minutes. 112 Further, Plaintiff has difficulty with reading
comprehension. 113
The ALJ similarly concluded that Plaintiff’s mental impairment both with and without
DAA results in moderate difficulty in maintaining social functioning. In support of this finding,
the ALJ indicated that Plaintiff testified that she is capable of having a poor attitude and bad
temper, which makes it difficult to get along with others. “Yet claimant does have a good
relationship with her children and grandchildren and gets along okay with authority figures.” 114
The ALJ did not appear to consider that Plaintiff also provided testimony about working at
Rocky Mountain Raceway, where she purposely stuck her finger in a snow-cone machine
because she was told not to put her finger in the machine. 115 Nor did the ALJ appear to consider
that Plaintiff “reported hearing voices at times when she became severely depressed.” 116
Plaintiff indicated that she was not drinking or using controlled substances during those times
she heard such voices. 117
Finally, the ALJ concluded that Plaintiff’s mental impairment without DAA would result
in moderate deficiencies of concentration, persistence, or pace. In so finding, the ALJ noted that
Plaintiff enjoys reading but has difficulty staying focused and reading for long periods of time.
But as indicated above, Plaintiff testified that she can stay focused on reading for only about five

112

Id.

113

Id. at 78.

114

Id. at 31.

115

Id. at 69.

116

Id. at 354.

117

Id.

19

minutes out of an hour and has difficulty with comprehension and retention. 118 The ALJ also
indicated that Plaintiff reported some difficulty in following written instructions and handling
changes in routine. In so concluding, the ALJ did not consider Plaintiff’s daily activity forms
where she indicated she doesn’t follow written instructions well. Additionally, the ALJ did not
appear to consider that the Plaintiff had, in fact, misunderstood the instructions for taking her
prescription medication Depakote. 119
“By mentioning only parts of plaintiff’s statements, while leaving out other important
parts, the ALJ engaged in the kind of selective and misleading evidentiary review that this and
other courts have rejected.” 120 The ALJ used a mischaracterization of the level of Plaintiff’s
daily activities, social functioning, and concentration, persistence, and pace during a period of
sobriety in order to determine that her mental impairment without DAA would result in only
mild and moderate restrictions of her activities of daily living and in finding that claimant’s
statements “concerning the intensity, persistence and limiting effects of these symptoms are not
credible to the extent they are inconsistent with the [ALJ’s listed] residual functional capacity
assessment.” 121
In addition, the Court agrees with Plaintiff’s argument that the ALJ failed to fully
consider Plaintiff’s periods of abstinence. Plaintiff alleges sobriety between May 6, 2010, and
July 23, 2010. However, the evidence about Plaintiff’s sobriety during this period is
inconsistent. Plaintiff also alleges sobriety between July 26, 2010, and early December 2010.
118

Id. at 77–78.

119

Id. at 454.

120

Sherman, 1998 WL 163355, at *6 (citing Teter, 775 F.2d at 1106.)

121

R. at 39.

20

There are no such record inconsistencies during this period. Even during the latter period,
Plaintiff reported having auditory hallucinations, suicidal ideation, agitation, and frustration. 122
In May 2010, Plaintiff reported that she had a history of “hearing voices at times when she
became severely depressed.” 123 Plaintiff indicated that she heard these voices during periods of
time when she was not using alcohol or controlled substances. 124 She experienced fights with
friends, lost her temper, and broke a radio. 125 She experienced the death of a son-in-law and
“couldn’t even cry.” 126 The ALJ was required to evaluate these alleged periods of abstinence. 127
“To find that DAA is material, [the ALJ] must have evidence in the case record
demonstrating that any remaining limitations were not disabling during the period [of
abstinence].” 128 The analysis of a sobriety period is important to the DAA analysis and the ALJ
mischaracterized the level of Plaintiff’s functioning during this critical period. Remand is
therefore necessary for the ALJ to determine whether Plaintiff’s remaining limitations during this
period of abstinence were disabling or to determine that Plaintiff is not credible regarding these
periods of abstinence.

122

Id. at 454–57.

123

Id. at 353.

124

Id.

125

Id. at 454.

126

Id. at 435.

127

Salazar, 468 F.3d at 623–24 (relying on agency guidance); SSR 13-2p, 78 Fed. Reg. at

128

Id.

11,945.

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D.

OTHER ARGUMENTS
Plaintiff makes a number of other arguments concerning the ALJ’s decision. The Court

is not persuaded that such arguments have merit. The Court, therefore, remands this case to
address only whether Plaintiff’s DAA is material, that is, whether claimant’s other impairments
would improve to the point of nondisability in the absence of DAA.
IV. CONCLUSION
It is therefore ORDERED that the ALJ’s decision is REVERSED AND REMANDED
pursuant to sentence four of 42 U.S.C. § 405(g) for the purpose of conducting additional
proceedings as set forth herein. The Clerk of this Court is directed to enter judgment remanding
this case and shall close this case forthwith.

DATED this 2nd day of April, 2014.
BY THE COURT:

Ted Stewart
United States District Judge

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