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Marvin L. v. Commissioner of Social Security

United States District Court, W.D. Washington, Seattle

May 14, 2019

MARVIN L., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS

          BRIAN A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE

         This case presents whether the ALJ misevaluated the medical evidence while (1) assessing residual functional capacity (“RFC”); and (2) determining that “drug addiction and alcoholism” (“DAA”) is a contributing factor material to the determination of disability.[1] The Court finds that the ALJ failed to support his conclusions with substantial evidence. The Court therefore REVERSES and REMANDS for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).

         BACKGROUND

         Plaintiff is currently 52 years old and applied for Supplemental Security Income, alleging disability as of the filing date of December 6, 2011. In 2014, the ALJ issued an unfavorable decision, but on appeal before the Western District of Washington the parties stipulated to a remand. Hearings were rescheduled in 2016 and 2017 due to plaintiff's incarceration and an incomplete record. Plaintiff appeared and testified at a final hearing held on January 11, 2018. Tr. 776-843.

         Utilizing the five-step disability evaluation process, [2] the ALJ determined at step one that plaintiff has not engaged in substantial gainful activity since the alleged onset date; at step two that plaintiff had the severe impairments of diabetes mellitus and peripheral neuropathy resulting therefrom, bipolar disorder, cocaine abuse, cannabis abuse, nicotine addiction, depressive disorder, and status post upper extremity derangements; and at step three that these impairments did not meet or equal the requirements of a listed impairment. Tr. 732-35. The ALJ determined that plaintiff has the RFC to perform light work with limitations: he requires a sit/stand option in the workplace; can have no contact with the public; is capable of working in proximity to, but not in coordination with, co-workers; can have occasional contact with supervisors; should engage in no stooping, squatting, crouching, crawling, kneeling, or climbing ramps, stairs, ropes, ladders, scaffolds; would be off task at work 15 percent of the time; would be absent from work one-and-a-half days per month; could perform frequent handling with the upper extremities; and would require the use of a cane or walker to walk, but not to stand, in the workplace. Tr. 735. The ALJ determined at step four that plaintiff had no past relevant work; and at step five that no jobs exist in significant numbers in the national economy that plaintiff can perform. Tr. 738-39. The ALJ therefore found plaintiff to be disabled if plaintiff's substance abuse disorder is considered. Tr. 739.

         Because the ALJ found plaintiff to be disabled and evidence of longstanding cocaine addiction exists, the ALJ the revisited the five-step evaluation to consider whether DAA is a contributing factor material to the determination of disability. The ALJ found that if plaintiff stopped substance use, most notably his use of cocaine, he would have the same RFC as before except he would be off task at work 10 percent of the time but still meet the minimum production requirements of the job, and he would be absent from work one day per month. Tr. 741. The ALJ noted again at step four that plaintiff had no past relevant work; and determined at step five that if plaintiff stopped substance use a significant number of jobs in the national economy exist that he could perform. Tr. 747. The ALJ therefore determined that plaintiff's substance abuse disorder is a contributing factor material to the determination of disability and that plaintiff is not disabled. Id. As the Appeals Council denied plaintiff's request for review, the ALJ's decision is the Commissioner's final decision.

         DISCUSSION

         Although plaintiff challenges all aspects of how the ALJ handled the medical evidence, there are two determinative issues: whether the ALJ harmfully erred with respect to (1) the RFC assessment that plaintiff (a) would be off task at work 15 percent of the time, (b) be absent from work one-and-a-half days per month, and (c) could perform frequent handling with the upper extremities; and (2) the DAA analysis that substance use is a contributing factor material to the determination of disability. The Court finds that the ALJ failed to support with substantial evidence: (1) the RFC assessment regarding (a) how frequently plaintiff would be off-task at work, (b) how frequently he would be absent from work, and (c) whether he could perform frequent handling with his dominant right hand; and (2) the DAA analysis that in the absence of plaintiff's substance use his severe impairments were no longer debilitating. The Court reverses and remands so the ALJ may reassess RFC on those three questions, further develop the record (which may include supplemental medical examinations and consultation with a medical expert), and revisit the DAA analysis de novo. The Court rejects plaintiff's arguments that the ALJ improperly assessed light work with restrictions instead of sedentary work and failed to cite substantial evidence to support the conclusion that plaintiff needed an assistive device to walk but not to stand.

         1. The RFC Assessment

         The ALJ assessed plaintiff's RFC with uncanny precision: if plaintiff's cocaine use is considered, plaintiff is disabled because he would be off task 15 percent of the time; he would be absent from work one-and-a-half days per month; and he could perform frequent handling with his upper extremities, regardless of his documented history of neuropathy and multiple right-hand surgeries. If, however, the apparently featherweight onus of plaintiff's cocaine addiction is removed, plaintiff would not be disabled because his RFC would conform with the vocational expert's testimony regarding the bare minimum capabilities for employment: being off task only 10 percent of the time; being absent only one day per month; and still being able to perform frequent handling with the upper extremities. Tr. 840-41. That is, if plaintiff was less capable with respect to any one of those RFC limitations in the DAA analysis, plaintiff would be deemed disabled. The ALJ's curiously precise RFC assessment that leaves him just barely disabled when including his substance abuse disorder is not supported by substantial evidence.

         First, the ALJ cited no medical evidence for the propositions that, considering substance abuse, plaintiff would be off task 15 percent of the time and would be absent from work one-and-a-half days per month. The treating and examining mental-health professionals-Charles Quinci, M.D., David Widlan, Ph.D., Robert Warwick, M.D., and Michael Kilbourne, M.H.P.-opined that plaintiff would be unable to perform activities involving completing tasks and completing a normal workday/workweek but set forth no precise numbers for plaintiff being off task or absent from work.[3] Tr. 489-500, 693, 694, 1097, 1117-19. The ALJ rejected the non-examining, state agency consultants' conclusions that plaintiff remained employable when substance use was considered and thus rejected their opinions regarding the extent to which plaintiff would be off task or absent from work. Tr. 736. Although the ALJ criticized the opinions of Dr. Quinci, Dr. Warwick, Dr. Widlan, and Mr. Kilbourne for being too brief or conclusory, or for not accounting for their stated observations regarding plaintiff's capabilities, he offered no explanation for how, in agreeing with the conclusion that plaintiff was disabled considering all of his severe impairments, the medical evidence demonstrated that plaintiff was limited to being off task 15 percent of the time and missing work one-and-a-half days per month. Moreover, the difference between the opinions of the medical professionals and that of the ALJ regarding plaintiff's workplace limitations is so vast, no reasonable inferences from the medical record could justify the ALJ's stated RFC.

         Second, the ALJ cited no medical source for the proposition that plaintiff could perform frequent handling with his dominant right hand. Examining physician Patricia Boiko, M.D., opined that plaintiff was limited to occasional handling and manipulation based on his neuropathy and upper extremity fractures. Tr. 2256. The ALJ criticized Dr. Boiko's conclusions regarding plaintiff's physical RFC because her comments were too brief and “they made no mention of the claimant's substance use and its effect upon his ability to function.” Tr. 737. The ALJ did not, however, explain how plaintiff's substance abuse did or did not allow him to handle with his upper extremities with greater frequency. In fact, the ALJ himself concluded in the RFC and the DAA analysis that substance use had no impact at all on plaintiff's ability to handle with his upper extremities. The ALJ gave some weight to the non-examining, state-agency consultant Dr. Staley's opinion but rejected his conclusion that plaintiff was limited to occasional handling with his right hand due to right thumb surgery. Tr. 92, 746. Thus every physician cited by the ALJ-examining or non-examining-opined that plaintiff could perform only occasional handling with his right hand.

         The ALJ concluded that plaintiff could frequently handle with both upper extremities because plaintiff had a “good response” to multiple surgeries on his right hand even though plaintiff continued to experience pain, had difficulty to extend or oppose his thumb, and surgery involved MP joint fusion of his right thumb with a local bone graft. Tr. 742-43. The ALJ also noted that “[t]here is very little evidence of the need for ongoing treatment after 2012” and “[t]here are also few complaints of ongoing pain or limitation in the hands after 2012.” Tr. 743. The ALJ acknowledged that on April 14, 2016, “it was noted that the claimant's hand pain was stable, but not improving, ” but suggests that “his hand pain appeared to be related to pressure from cane use at that time.” Tr. 743 (citing Tr. 1583). The ALJ failed, however, to address medical notes one-week later at the same clinic about a history of right thumb pain, that plaintiff “[r]ecently feels like bones are moving and causing him pain” though there was no recent trauma or injury, and “[o]n exam there is a bony protrusion medial to the MCP joint, unclear if chronic or acute.” Tr. 1595, 1596. It is in no way self-evident from the medical record that plaintiff is capable of more than occasional handling. The ALJ thus improperly substituted his own medical judgment for that of the medical professionals. See, e.g., Schultz v. Colvin, 32 F.Supp.3d 1047 (N.D. Cal. March 4, 2014).

         In sum, the Commissioner argues that the ALJ cited specific and legitimate reasons for rejecting the uncontradicted medical opinions of examining physician Dr. Boiko and consulting physician Dr. Staley that plaintiff was limited to occasional handling with his right hand because those opinions inadequately explained their reasoning, did not account for plaintiff's substance abuse, and did not acknowledge plaintiff's medical improvement and lack of treatment/complaints about hand pain since 2012. The Court disagrees. No. reasonable person would accept that Dr. Boiko's and Dr. Staley's 2016 opinions failed to account for plaintiff's history of hand pain when they explicitly set forth functional limitations based on his historical difficulties with handling objects due to multiple surgeries on his right hand. The ALJ provides no explanation for why it matters that Dr. Boiko did not reflect upon how cocaine use affected plaintiff's ability to handle objects given the ALJ himself found in the DAA analysis that drug use had no impact on this functional limitation. And the ALJ acknowledged that in 2016 plaintiff's hand pain was, at best, “stable, but not improving, ” Tr. 743 (citing Tr. 1583), while notes a week later from the same clinic confirmed structural abnormalities in the hand and both historical and ongoing hand pain, Tr. 1595, 1596. Thus, the only ...


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