Opinion
CV-21-00256-TUC-JGZ (MSA)
03-09-2022
Freddie Sanchez, Jr., Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Maria S. Aguilera, United States Magistrate Judge
Freddie Sanchez, Jr. seeks judicial review of an unfavorable decision made by the Commissioner of Social Security Administration (Commissioner). The matter has been fully briefed. (Docs. 17, 20, 21.) For the following reasons, the Court will recommend that the Commissioner's decision be affirmed.
Background
I. Procedural History
In March 2018, Sanchez filed an application for supplemental security income, alleging a disability onset date of June 1, 2002. (AR 288.) The application was denied initially in April 2018 and on reconsideration in August 2018. (AR 82, 109.) Sanchez requested a hearing before an administrative law judge (ALJ), and a hearing was held in August 2020. (AR 54-80, 174.) After the hearing, the ALJ issued a written decision denying Sanchez's application. (AR 13-29.) In April 2021, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (AR 1-3.) Sanchez initiated this lawsuit in June 2021, seeking judicial review of the ALJ's decision.(Doc. 1.)
The ALJ also denied Sanchez's separate application for disability insurance benefits. (AR 29, 286.) The denial of that application is not challenged in this proceeding.
II. The ALJ's Decision
The ALJ followed the five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. § 416.920. At step one, the ALJ found that Sanchez had not engaged in substantial gainful activity since his alleged onset date. (AR 16.) At step two, the ALJ found that Sanchez had the following severe impairments: alcohol-abuse disorder, depression, and alcohol-induced seizure activity. (AR 16.) At step three, the ALJ found that Sanchez was under a disability because his depression, in combination with alcohol abuse, met the criteria of a listed impairment. (AR 17.)
The ALJ then analyzed whether Sanchez would be disabled if he stopped using alcohol. At step two, the ALJ found that Sanchez's depression would still qualify as a severe impairment. (AR 23.) At step three, the ALJ found that Sanchez's depression would not meet or equal the severity of a listed impairment. (AR 23.) Between steps three and four, the ALJ found that Sanchez would have the residual functional capacity to perform a full range of work at all exertional levels but with a few non-exertional limitations. (AR 24.) At step four, the ALJ found that Sanchez had no past relevant work. (AR 28.) At step five, the ALJ found that Sanchez would be able to perform work that existed in significant numbers in the national economy. (AR 28.) The ALJ thus concluded that alcohol abuse was material to the disability determination, and that Sanchez was not disabled. (AR 29.)
Legal Standard
The ALJ's decision must be affirmed if it is supported by substantial evidence and free of legal error. Lambert v. Saul, 980 F.3d 1266, 1270 (9th Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Coleman v. Saul, 979 F.3d 751, 755 (9th Cir. 2020) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The ALJ's decision may not be overturned on account of an error that was “inconsequential to the ultimate nondisability determination.” Fordv. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Tommasetti, 533 F.3d at 1038).
Discussion
Sanchez argues that the ALJ erred in finding that alcohol abuse is material to the disability determination. The Court disagrees. As discussed below, the ALJ's decision is supported by substantial evidence.
Under the Social Security Act, “an individual shall not be considered to be disabled . . . if alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner's determination that the individual is disabled.” 42 U.S.C. § 1382c(a)(3)(J). In a case where drug or alcohol abuse is a factor, the “ALJ must first conduct the five-step inquiry without separating out the impact of alcoholism or drug addiction.” Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001). If the ALJ concludes that the claimant is disabled, the ALJ must conduct another five-step inquiry to determine whether the disability would remain if the claimant stopped using drugs or alcohol. Id. If the claimant would not be disabled, then substance abuse is material to the disability determination, and benefits must be denied. 20 C.F.R. § 416.935(b). “[T]he claimant bears the burden of proving that drug or alcohol addiction is not a contributing factor material to his disability.” Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007).
This case largely centers on the ALJ's findings at step three. At this step, the ALJ must determine whether the “claimant has an impairment or combination of impairments that meets or equals a condition outlined in the ‘Listing of Impairments'”; if so, then the claimant is “presumed disabled.” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001) (citing 20 C.F.R. § 404.1520(d)). Relevant here is the listing for depressive disorder, which is satisfied if the claimant's depression causes “marked” limitations in at least two of the four areas of mental functioning: understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04.
During the initial five-step inquiry, the ALJ found that Sanchez met the listing for depressive disorder because his depression, in combination with his alcohol use, caused “marked” limitations in all four areas of mental functioning. (AR 17-18.) During the second five-step inquiry, however, the ALJ found that Sanchez would have only “moderate” or “mild” limitations if he stopped using alcohol. (AR 23-24.) As this meant that Sanchez would no longer meet the listing, the ALJ proceeded to steps four and five, ultimately concluding that Sanchez would be able to work if he stopped using alcohol. (AR 24-29.)
Thus, the issue is whether substantial evidence supports the ALJ's conclusion that Sanchez's limitations would improve from “marked” to “moderate” in the absence of alcohol use. When projecting whether a mental impairment would improve in the absence of substance abuse, the ALJ must rely on “evidence in the case record.” SSR 13-2p, 2013 WL 621536, at *9 (Feb. 20, 2013). This includes objective medical findings, consultative examinations, and evidence from non-medical sources (e.g., family, friends, the claimant). Id. at *10-11. The adjudicator may not “rely exclusively” on a medical opinion that is based on general “medical expertise” without regard to claimant-specific information. Id. at *9. The term “exclusively,” however, implies that partial reliance on such evidence can be appropriate.
Federal courts “defer to Social Security Rulings unless they are plainly erroneous or inconsistent with the [Social Security] Act or regulations.” Quang Van Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989) (citing Paxton v. Sec'y of Health & Hum. Servs., 856 F.2d 1352, 1356 (9th Cir. 1988)).
The ALJ here initially found that, during periods of intoxication and detoxification, Sanchez would have significant difficulties in all four areas of mental functioning. (AR 18.) However, the ALJ went on to highlight evidence indicating that Sanchez's depression was not disabling outside those extreme states. As for Sanchez's memory, the ALJ noted that it was consistently described as “normal” and “intact” by his providers. (AR 23, 962-63, 5934, 5939, 5944, 5954, 6902, 6907, 6912.) As for Sanchez's ability to interact with others, the ALJ observed that Sanchez reported having a “good relationship with coworkers,” that his behavior was appropriate following detoxification, and that Sanchez used his family as a support system. (AR 23-24, 5961, 6165.) As for Sanchez's ability to concentrate, the ALJ observed that Sanchez's providers consistently noted that he had “good” attention and concentration. (AR 23-24, 5934, 5939.) Finally, as for Sanchez's ability to adapt or manage himself, the ALJ relied on Sanchez's reports that he could find work, perform activities of daily living (ADLs) without help, seek support from his family and friends when he felt discouraged, meditate or exercise when he felt depressed or anxious, and attend church and play softball. (AR 24, 5963, 5966, 5968, 5972, 6165, 6227.)
The examples cited by the ALJ are generally consistent with other clinical observations and notes in the record and are therefore representative of Sanchez's mental condition, both in and out of a structured treatment environment. (See, e.g., AR 3604 (February 2016 note indicating a normal mental status examination and stating that Sanchez's mood was “relaxed”); AR 3616 (same in July 2016); AR 3640 (same in November 2016); AR 3652 (same in June 2017, during a one-month period of abstinence); AR 3664 (same in March 2018, one day after completing detoxification); AR 6059 (August 2018 note stating that Sanchez's mood was “euthymic” during a three-week period of abstinence, and that he was “active” and completing his ADLs without issue); AR 606364 (September 2018 note indicating a normal mental status examination and stating that Sanchez's mood was “improved,” and that he was only “mildly depressed” during a twomonth period of abstinence); AR 6074-75 (January 2019 note stating that Sanchez's mood was “euthymic” and “better” following detoxification, and that he was searching for work); AR 6083 (March 2019 note indicating a normal mental status examination and stating that Sanchez was only “a little depressed” during a two-month period of abstinence); AR 6118 (May 2019 note indicating a normal mental status examination and stating that Sanchez's “mood has been good”).)
The ALJ was clear that she “reviewed the entire file, consisting of more than 7,000 pages of evidence . . . .” (AR 27.)
These records indicate that Sanchez's depression causes negative feelings but does not markedly limit his mental functioning as required by the listing for depressive disorder. Importantly, the examples cited by the ALJ show that this was the case in recent years (2015 to 2020). Therefore, the ALJ could reasonably rely on them to find that Sanchez's depression would improve to the point of nondisability if he stopped using alcohol. These records alone constitute substantial evidence. See Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 126-27 (2d Cir. 2012) (reaching a similar conclusion in similar circumstances).
The ALJ also relied on the opinion of Dr. David Jarmon, a consulting physician. (AR 21-22.) At Sanchez's hearing, Dr. Jarmon testified that it was “virtually impossible” to identify which limitations were caused by depression and which were caused by alcohol use. (AR 59-61.) He also testified that it was “possible” that Sanchez could work if he stopped using alcohol, and that he “certainly” could return to work as a painter if he were abstinent. (AR 61, 64-65.) Dr. Jarmon acknowledged that his opinion was based in large part on the fact that “alcohol is a depressant, so the use of alcohol would ultimately lead to depressive symptoms.” (AR 61, 64-65.) This testimony, which is highly qualified and arguably inconsistent, is not persuasive to the Court. Nevertheless, the ALJ could rely on it in combination with other evidence in Sanchez's record. SSR 13-2p, 2013 WL 621536, at *9 (precluding only “exclusive” reliance “on medical expertise and the nature of a claimant's mental disorder”).
Sanchez devotes much of his briefing to challenging the ALJ's reliance on Dr. Jarmon's opinion. However, any error concerning Dr. Jarmon's testimony was harmless because the ALJ's findings are supported by other evidence in the record. In addition, Sanchez's argument is based on a misreading of Social Security Ruling 13-2p. He contends that when a case involves substance abuse and a cooccurring mental impairment, the ALJ may not rely on a medical opinion that is based entirely on medical expertise, without regard to information specific to the claimant. To support this contention, he highlights the following statements in the ruling:
a. Many people with [drug addiction and alcoholism (DAA)] have cooccurring mental disorders; that is, a mental disorder(s) diagnosed by an acceptable medical source in addition to their DAA. We do not know of any research data that we can use to predict reliably that any given claimant's co-occurring mental disorder would improve, or the extent to which it would
improve, if the claimant were to stop using drugs or alcohol.
b. To support a finding that DAA is material, we must have evidence in the case record that establishes that a claimant with a co-occurring mental disorder(s) would not be disabled in the absence of DAA. Unlike cases involving physical impairments, we do not permit adjudicators to rely exclusively on medical expertise and the nature of a claimant's mental disorder.
c. We may purchase a [consultative examination (CE)] in a case involving a co-occurring mental disorder(s). We will purchase CEs primarily to help establish whether a claimant who has no treating source records has a mental disorder(s) in addition to DAA.SSR 13-2p, 2013 WL 621536, at *9 (emphases added).
None of this language creates the bright-line rule advocated for by Sanchez: A lack of “research data” says nothing about a particular doctor's knowledge and experience; as noted twice in this report, the term “exclusively” implies that partial reliance is permissible; and, similarly, the term “primarily” implies that consultative examinations may be considered for reasons besides establishing the existence of a mental disorder. While the ruling certainly indicates that adjudicators should take special care when considering mental impairments, it stops short of categorically barring reliance on general medical expertise.
The ruling also states: “In cases involving physical impairments, we may ask for medical opinions that project the nature, severity, and functional effects if the claimant were to stop using drugs or alcohol. In cases involving mental impairment(s) we will not ask for projections, as we explain in Question 7.” SSR 13-2p, 2013 WL 621536, at *8 n.19. The second sentence could be read as stating that ALJs may never rely on predictive medical opinions in cases involving mental impairments. However, the sentence refers to “Question 7,” and that section of the ruling prohibits only exclusive reliance on such evidence. Id. at *9.
Next, Sanchez raises the following argument concerning his burden to prove that substance abuse is not material:
Where there is no sustained period of abstinence in a claimant with a cooccurring mental disorder, the claimant can meet his burden of proof by showing that the effects of the mental disorder and the DAA are disabling and that limiting effects of the co-occurring mental disorder cannot be separated from the limiting effects of DAA.(Doc. 21 at 4; see Doc. 17 at 15-16.)
This argument fails for at least two reasons. First, this supposed rule has no application in this case because there is evidence in the record supporting the conclusion that Sanchez would not be disabled if he stopped using alcohol. In other words, the limiting effects of his depression can be separated from the limiting effects of his alcohol use.
Second, Sanchez is wrong that a “sustained period of abstinence” is required to make a materiality determination. Social Security Ruling 13-2p requires that the claimant be “abstinent long enough to allow the acute effects of drug or alcohol use to abate.” SSR 13-2p, 2013 WL 621536, at *12. And the ruling makes clear that “the length and number of periods of abstinence [necessary] to demonstrate whether DAA is material” will vary from case to case. Id. Nothing in this language precludes an ALJ from relying on numerous, short-term periods of sobriety when appropriate. See Cage, 692 F.3d at 127 (“While the record does not reveal any extended periods of sobriety during the relevant period following Cage's May 2004 application date, it does include, inter alia, positive evaluations of Cage conducted during inpatient admissions when Cage did not have access to drugs or alcohol.”). It was appropriate for the ALJ to do so in the case.
Sanchez's argument is similar to one rejected in this circuit as inconsistent with the Social Security Act. See Parra, 481 F.3d at 748-50. In Parra, the claimant argued that he could meet his burden of proof by showing that the evidence was “inconclusive” as to whether his impairment would improve in the absence of substance abuse. Id. at 749. The court disagreed, finding that the claimant's argument “effectively shift[ed] the burden to the Commissioner to prove materiality.” Id. at 749. In addition, the court observed that the claimant's proposed rule provided him with an incentive to continue using alcohol, “because abstinence may resolve his disabling limitations and cause his claim to be rejected or his benefits terminated.” Id. at 750. This, the court found, would contravene the statute's purpose. Id.
Conclusion
The ALJ found at step three that Sanchez's depression would improve to the point of nondisability if he stopped using alcohol. That finding is supported by substantial evidence. Sanchez does not challenge the ALJ's subsequent findings regarding his residual functional capacity and ability to perform work that exists in sufficient numbers in the national economy. Therefore, IT IS RECOMMENDED that the Commissioner's decision be affirmed.
This recommendation is not immediately appealable to the United States Court of Appeals for the Ninth Circuit. The parties shall have fourteen days to file specific written objections with the district court. The parties shall have fourteen days to file responses to any objections. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). No replies may be filed absent prior authorization by the district court. Failure to file timely objections may result in the acceptance of this recommendation by the district court without de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV-21-00256-TUC-JGZ.