Salinas v. Colvin

Filing 26

MEMORANDUM DECISION AND ORDER on Administrative Appeal. Having made a thorough review of the entire record, the Court hereby AFFIRMS the administrative ruling. Signed by Judge Ted Stewart on 6/7/2017. (eat)

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

Plaintiff,
v.
NANCY A. BERRYHILL, in her capacity
as Acting Commissioner of the Social
Security Administration,

Case No. 2:16-CV-340 TS
District Judge Ted Stewart

Defendant.

This matter comes before the Court on Plaintiff Gloria S. Salinas’ appeal from the
decision of the Social Security Administration denying her application for disability insurance
benefits and supplemental security income. Having considered the arguments of the parties,
reviewed the record and relevant case law, and being otherwise fully informed, the Court will
affirm 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) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)).

1

consider all of the evidence, although he or she 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 the evidence before the
ALJ that detracts from the weight of the ALJ’s decision. 5 However, the reviewing court should
not re-weigh the evidence or substitute its judgment for that of the ALJ. 6
II. BACKGROUND
Plaintiff initially filed for benefits on June 3, 2010, alleging a disability onset date of June
1, 2010. Plaintiff’s claim was 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.
Plaintiff then brought suit in this Court.7 Plaintiff raised the following issues: (1)
whether the ALJ erred in his drug addiction and alcoholism (“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

3

Id. at 1009–10.

4

Richardson, 402 U.S. at 390.

5

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

6

Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000).

7

Case No. 2:12-CV-1186 TS.

2

addressed step four even though he did not make findings concerning the mental demands of
Plaintiff’s past work.
In a Memorandum Decision and Order dated April 2, 2014, the Court reversed and
remanded this matter to the agency. The Court agreed that the ALJ erred in his DAA materiality
analysis. The Court found that the ALJ “engaged in [a] selective and misleading evidentiary
review of the record” when he determined that Plaintiff would not be disabled absent her DAA. 8
In particular, the Court found that the ALJ mischaracterized Plaintiff’s activities of daily living,
social functioning, and concertation, persistence, and pace. The Court also found that the ALJ
failed to fully consider Plaintiff’s stated periods of sobriety. On that issue, the Court remanded
“for the ALJ to determine whether the Plaintiff’s remaining limitations during [these] period[s]
of abstinence were disabling or to determine that Plaintiff is not credible regarding these periods
of abstinence.” 9 Thus, the Court remanded the “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.” 10
On July 22, 2014, the Appeals Council remanded Plaintiff’s case to the ALJ for further
proceedings consistent with the order of the Court. On January 16, 2015, the ALJ conducted a
second hearing. At the hearing, the ALJ acknowledged that the matter was before him on a

8

Case No. 2:12-CV-1186 TS, Docket No. 28, at 17.

9

Id. at 21.

10

Id. at 22.

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remand from the Court. 11 Plaintiff’s counsel also directed the ALJ’s attention to the periods of
sobriety that needed to be considered. 12
The ALJ issued his decision on July 31, 2015. 13 The ALJ did not mention the Court’s
prior order or the previous proceedings, but ultimately concluded that Plaintiff’s DAA was a
contributing factor material to her disability. As such, the ALJ found that Plaintiff was not
disabled.
III. DISCUSSION
Plaintiff raises only one issue in her brief: that the ALJ ignored the Court’s prior remand
order and failed to follow the directives of the Court. “Deviation from the court’s remand order
in the subsequent administrative proceedings is itself legal error, subject to reversal on further
judicial review.” 14 The Court disagrees that the ALJ failed to follow the Court’s instructions on
remand.
As stated, the Court faulted the ALJ for his DAA materiality determination. The Court
did so for two primary reasons. First, the Court found that the ALJ had mischaracterized
Plaintiff’s activities of daily living, social functioning, and concentration, persistence, and pace.
The Court concluded that the ALJ had selectively picked from the record those things that
supported his conclusion while failing to address those items that detracted from it. The ALJ’s
second decision does not suffer from the same flaws. The ALJ fully considered the evidence
related to Plaintiff’s activities of daily living, social functioning, and concentration, persistence,
11

R. at 863.

12

Id. at 875–79; see also id. at 1336–39.

13

Id. at 825–44.

14

Sullivan v. Hudson, 490 U.S. 877, 886 (1989).

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and pace. 15 After considering all the evidence, the ALJ found Plaintiff’s “statements concerning
the intensity, persistence and limiting effects of [her] symptoms are not credible to the extent that
they are inconsistent with the residual functional capacity assessment.” 16 The ALJ further found
that, when not abusing alcohol, Plaintiff had only “a moderate restriction of activities of daily
living, moderate difficulties in maintaining social functioning, and moderate deficiencies of
concentration, persistence or pace.” 17 The ALJ noted that when Plaintiff was abstinent, “she had
good hygiene, was pleasant and cooperative, had her emotions under control and was not
suicidal.” 18 Plaintiff does not challenge the ALJ’s credibility determination or his determination
as to Plaintiff’s limitations. Having carefully reviewed the record, the Court concludes that these
findings are supported by substantial evidence.
Plaintiff does argue that the ALJ’s findings conflict with the opinion of the medical
expert who testified at the second hearing. At that hearing, the medical expert opined that
Plaintiff would have marked restrictions in social interaction and concentration, persistence, or
pace if her testimony was fully credible. 19 However, as discussed, the ALJ found that Plaintiff
was not fully credible. Plaintiff has not challenged that finding and it is supported by substantial
evidence. Thus, the ALJ was not required to accept the medical expert’s opinion that Plaintiff
had marked limitations in these areas.

15

R. at 834–35.

16

Id. at 835.

17

Id. at 832.

18

Id. at 831.

19

Id. at 922.

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Second, the Court remanded so the ALJ could consider Plaintiff’s stated periods of
abstinence. The Court stated that the ALJ should “determine whether Plaintiff’s remaining
limitations during [these] period[s] of abstinence were disabling or to determine that Plaintiff is
not credible regarding these periods of abstinence.” 20 In his 2015 Order, the ALJ specifically
discussed the two periods of abstinence identified in the Court’s order and a third period
identified by Plaintiff’s counsel at the hearing. 21 While the decision could have been clearer on
this point, it appears that the ALJ found that Plaintiff was not credible with respect to these
periods. 22 The ALJ specifically discussed the three periods of sobriety. In the paragraph that
followed, the ALJ found:
If the claimant stopped the substance abuse, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected to
produce many of the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are
not credible to the extent they are inconsistent with the residual functional
capacity assessment for the reasons explained below. 23
The ALJ then went on to discuss the medical evidence at length. After doing so, the ALJ
found that Plaintiff’s
medically determinable impairments do not appear to have caused the alleged
symptoms to the degree that the claimant was totally disabled. The claimant’s
statements concerning the intensity, persistence and limiting effects of these
symptoms are partially credible for the reasons explained in this decision. The
claimant generally exaggerated her limitations. Her ability to stand, walk and sit
was normal throughout the medical evidence of record. Her grooming and
hygiene was inconsistent with her allegations. She consistently appeared for her
appointments in a well-groomed and hygienic appearance, and did not display
musculoskeletal symptoms that would have prevented her from working. As her
20

Case No. 2:12-CV-1186 TS, Docket No. 28, at 21.

21

R. at 835.

22

Id. at 835–840.

23

Id. at 835.

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mental health therapists have indicated, so long as she was consistent in taking her
medications according to the prescriptions she was not suicidal and appeared to
have her depression under good control. 24
This finding is supported by substantial evidence.
In the Court’s prior order, it noted two periods of abstinence the ALJ should consider:
May 6, 2010 to July 23, 2010 and July 26, 2010 to early December 2010. At the second hearing,
Plaintiff’s counsel directed the ALJ’s attention to a third period of abstinence from December
2010 to December 2012. The record contains numerous conflicting statements from Plaintiff
concerning her drinking during these alleged periods of sobriety. For example, Plaintiff stated
that she was sober from December 2010 to December 2012. However, in February 2011,
Plaintiff went on a five-day drinking binge. 25 Further, in April 2011, Plaintiff admitted drinking
several beers a day and tested positive for cocaine. 26 The ALJ considered these inconsistencies 27
and, as stated, found that Plaintiff was not completely credible. The ALJ’s credibility
determination is supported by substantial evidence and has not been challenged by Plaintiff here.
Therefore, the Court concludes that the ALJ complied with the Court’s instructions in
considering Plaintiff’s periods of abstinence, even though the ALJ’s reasoning was less than
clear.
Ultimately, the ALJ found that Plaintiff’s DAA was a contributing factor material to the
determination of disability, resulting in a finding that Plaintiff was not disabled. Plaintiff does
not challenge this determination. There is considerable evidence in the record that demonstrates
24

Id. at 839–40.

25

Id. at 799.

26

Id. at 1469–70.

27

Id. at 836.

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that Plaintiff’s symptoms improved when she was not using drugs and alcohol, and that Plaintiff
only had mild or moderate limitations when abstinent. As the ALJ concluded, the evidence
shows that “[w]hen she was abstinent, [Plaintiff] had good hygiene, was pleasant and
cooperative, had her emotions under control and was not suicidal.” 28 Further, there is substantial
evidence that, when not abusing alcohol, Plaintiff’s mental impairments “resulted in a moderate
restriction of activities of daily living, moderate difficulties in maintaining social functioning,
and moderate deficiencies of concentration, persistence or pace, and no episodes of
decompensation.” 29 Based upon the evidence, the ALJ could reasonably find that Plaintiff
would not be disabled if she ceased her substance abuse. Thus, the Court finds that the ALJ’s
DAA materiality determination is supported by substantial evidence and must be affirmed.
IV. CONCLUSION
Having made a thorough review of the entire record, the Court hereby AFFIRMS the
decision below.
DATED this 7th day of June, 2017.
BY THE COURT:

Ted Stewart
United States District Judge

28

Id. at 831.

29

Id. at 832.

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