Cecala v. Colvin

Filing 23

MEMORANDUM DECISION AND ORDER - The Court Reverses and Remands the ALJ's decision with instructions to follow the established evaluation process in SSR 13-2p. Signed by Magistrate Judge Brooke C. Wells on 9/28/2017. (las)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ROSSI J. CECALA,

MEMORANDUM DECISION AND
ORDER REVERSING AND REMANDING
THE DECISION OF THE
COMMISSIONER

Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

Case No. 2:16-cv-871-BCW
Magistrate Judge Brooke Wells

Plaintiff Rossi J. Cecala (“Plaintiff’) seeks judicial review of the decision of the
Commissioner of Social Security denying his application for Supplemental Security Income
(“SSI”) disability benefits under Title XVI of the Social Security Act. 1 After careful
consideration of the record and the briefs filed by counsel, the Court has determined that oral
argument is unnecessary and decides this case based upon the record before it. 2 For the reasons
set forth below, the Court REVERSES and REMANDS the decision of the Administrative Law
Judge (“ALJ”). 3
PROCEDURAL HISTORY
Plaintiff protectively filed his application for SSI on November 24, 2014. 4 Plaintiff
alleged a disability onset date of November 24, 2014, and sought benefits on the basis of various

1

42 U.S.C. §§ 1381-1383f.

2

See Scheduling Order, Docket no. 18 (noting that “Oral argument is not a necessary part of the review process.”).

3

Because the Appeals Council denied review, the ALJ’s decision is the Commissioner’s final decision for purposes
of this appeal. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).

4

Transcript (“Tr.”) at 12.

alleged mental impairments. 5 Following denial of his applications initially and on
reconsideration, Plaintiff requested a hearing before an ALJ, which was held on March 17,
2016. 6 The ALJ issued an unfavorable decision on April 15, 2016. 7 The SSA Appeals Council
denied Plaintiff’s request for review, making the ALJ’s unfavorable decision the final decision of
the Commissioner. 8 This action for judicial review followed.
ADMINISTRATIVE DECISION
The Commissioner has prescribed a five-step sequential evaluation process to determine
whether a claimant, like Plaintiff, is disabled and therefore entitled to SSI. 9 At step one, the ALJ
found that Plaintiff had not engaged in substantial gainful activity since November 24, 2014, the
alleged onset date. 10 At step two, the ALJ determined that Plaintiff had the severe impairments
of anxiety disorder, PTSD, depressive disorder, attention deficit hyperactivity disorder, rule out
antisocial personality disorder, and drug abuse. 11 At step three, the ALJ determined that Plaintiff
did not have an impairment or combination of impairments that meets or medically equals the
severity of one of the Listings. 12 The ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform medium work subject to additional mental limitations. 13 At step

5

Tr. at 12 and 14.

6

Tr. at 12.

7

Tr. at 12-22.

8

Tr. 1-4.

9

See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009); 20 C.F.R. § 416.920(a)(4).

10

Tr. at 14.

11

Id.

12

Id.

13

Tr. at 16.

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four, the ALJ found that Plaintiff had no past relevant work. 14 Finally, at step five, the ALJ
found that Plaintiff—considering his age, education, work experience, and RFC—would be able
to perform the requirements of representative occupations such as a hand packager, marker, and
photocopy machine operator. 15 The ALJ also found that these jobs exist in significant numbers
in the national economy. 16 The ALJ concluded that Plaintiff is not disabled. 17
STANDARD OF REVIEW
The Court reviews “the ALJ's decision only to determine whether the correct legal
standards were applied and whether the factual findings are supported by substantial evidence in
the record.” 18 “Substantial evidence is ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” 19 “It requires more than a scintilla, but less than a
preponderance.” 20
Additionally, the ALJ is required to consider all of the evidence; however, the ALJ is not
required to discuss all the evidence. 21 In reviewing the ALJ’s decision the Court evaluates the
record as a whole, including that evidence before the ALJ that detracts from the weight of the
ALJ’s decision. 22 The Court, however, may neither “reweigh the evidence [n]or substitute [its]

14

Tr. at 20.

15

Tr. at 21.

16

Id.

17

Tr. at 22.

18

Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006).

19

Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted).

20

Id.

21

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

22

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

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judgment for the [ALJ’s].” 23 Where the evidence as a whole can support either the agency’s
decision or an award of benefits, the agency’s decision must be affirmed. 24 Further, the Court
“may not ‘displace the agenc[y’s] choice between two fairly conflicting views, even though the
Court would justifiably have made a different choice had the matter been before it de novo.’” 25
ISSUE ON APPEAL
Plaintiff argues that the ALJ did not properly evaluate the Plaintiff’s substance abuse. 26
Specifically, Plaintiff argues that the ALJ failed to follow the evaluation process outlined in SSR
13-2p. Plaintiff argues that the ALJ erroneously made a materiality determination before finding
Plaintiff unable to work. 27
DISCUSSION
In the case at bar, at step three of the sequential evaluation the ALJ determined that
Plaintiff’s “DAA is not material to the outcome of this decision.” 28 At step five of the sequential
evaluation the ALJ found that Plaintiff was not disabled. 29
“Section 416.935, SSR 13–2p, and POMS 90070.050 set forth the applicable process for
an adjudicator to determine whether DAA is a material contributing factor to a claimant's
disability.” 30 “First, the ALJ must decide if the claimant is disabled, following the general

23

Lax, 489 F.3d at 1084 (citation omitted).

24

See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).

25

Lax, 489 F.3d at 1084 (citation omitted).

26

Docket no. 18, pg. 3.

27

Docket no. 18, pg. 11-12.

28

Tr. at 19.

29

Tr. at 22.

30

Billy v. Colvin, 2014 WL 6879129, at *3 (W.D. Okla. Dec. 4, 2014).

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disability case development and evaluation procedures and considering the effects of DAA.” 31
“Second, the ALJ must decide if there is ‘medical evidence of DAA.’” 32 “Finally, if there is
medical evidence of DAA, the ALJ must re-evaluate the claimant as if he had stopped using
drugs and alcohol, and on that basis decide whether the DAA is a contributing factor material to
the disability.” 33 “Stated differently, a DAA materiality determination is made only when ‘the
claimant is disabled considering all impairments’ and the ALJ has ‘medical evidence from an
acceptable medical source establishing that a claimant has a Substance Use Disorder.’” 34
Requiring a disability determination under the five-step sequential process prior to
making a DAA materiality determination forces the ALJ to consider all Plaintiff’s impairments,
including DAA, in determining disability. Only after considering all impairments, including
DAA, the ALJ shall make a finding of disabled or not disabled. If, and only if, the ALJ finds
that Plaintiff is disabled and there is medical evidence of DAA, then the ALJ should proceed and
make a materiality finding with respect to Plaintiff’s DAA. If the ALJ finds Plaintiff not
disabled with DAA impairments, then no further analysis or materiality determination is
necessary.
Here, the ALJ should not have made a materiality finding regarding Plaintiff’s DAA until
after he had made a disability determination. Thus, the ALJ erred in making a materiality
finding at step three, prior to making his disability determination at step five. By making a

31

Id. (citing POMS § 90070.050(B)(1)).

32

Id. (citing POMS § 90070.050(B)(2)).

33

Id. (citing POMS § 90070.050(B)(3), (D); 20 C.F.R. § 416.935(b)(2); SSR 13–2p).

34

Id. (citing SSR 13–2p; see also Salazar v. Barnhart, 468 F.3d 615, 622–26 (10th Cir. 2006); Drapeau v.
Massanari, 255 F.3d 1211, 1214 (10th Cir.2001)) (emphasis added).

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materiality finding in step three, it is unclear whether the ALJ made the initial disability
determination with consideration of Plaintiff’s DAA impairments.
Accordingly, this Court REVERSES and REMANDS the ALJ’s decision with
instructions to follow the established evaluation process outlined in SSR 13-2p.
DATED this 28 September 2017.

Brooke C. Wells
United States Magistrate Judge

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