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Lohmeier v. Colvin

United States District Court, D. Arizona

March 2, 2016

Christopher Lohmeier, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.


BERNARDO P. VELASCO, District Judge.

Plaintiff Christopher Lohmeier has filed the instant action seeking review of the final decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). Pending before the Court are Plaintiff's Opening Brief (Doc. 17), Defendant's Brief (Doc. 19), and Plaintiff's Reply (Doc. 20).

The Magistrate Judge has jurisdiction over this matter pursuant to the parties' consent. (Doc. 24). For the following reasons, the Court remands the matter for further proceedings.


Plaintiff filed applications, with a protective filing date of September 27, 2012, for disability benefits and supplemental security income under the Social Security Act. (Doc. 17, p. 1; Transcript/Administrative Record (Doc. 15) ("Tr.") 20, 216-226). Plaintiff alleges that he has been unable to work since October 3, 2012[1], due to "Major depressive disorder, anxiety, mood disorder"; hepatitis C; carpel tunnel syndrome; substance abuse disorder; anti-social disorder; oppositional defiance disorder; and compressed discs in his lower back. (Tr. 302). After Plaintiff's applications were denied initially and upon reconsideration, he requested a hearing before an Administrative Law Judge ("ALJ"). (Doc. 17, pp. 1-2). On January 21, 2014, the matter came on for hearing before ALJ Larry E. Johnson, where Plaintiff, who was represented by counsel, and Vocational Expert ("VE") Kathleen McAlpine testified. (Tr. 37-61). On March 28, 2014, the ALJ issued an unfavorable decision. (Tr. 20-31). The Appeals Council subsequently denied Plaintiff's request for review, thereby rendering the ALJ's March 28, 2014 decision the final decision of the Commissioner. (Tr. 1-6). Plaintiff then initiated the instant action.


Plaintiff was born in December 1971. (Tr. 216). He quit high school after the ninth grade and has a GED. (Tr. 42, 55, 367). In the past, Plaintiff worked as an electrician's helper. (Tr. 40-41). Plaintiff is divorced and has a fiancee. (Tr. 42, 56). Other than his fiancee, Plaintiff has no friends and he is not in touch with his children or other family: "I don't know why it is, I just... shut down." (Tr. 50). In the past, Plaintiff has been homeless and lived under a bridge. (Tr. 42-43). Plaintiff's fiancee pays for his room and board. (Tr. 43; see also Tr. 56 (Plaintiff and his fiancee do not live together); Tr. 664 (Plaintiff lives in transitional housing)).

The record reflects Plaintiff's long history of substance abuse and treatment for mental health issues. Plaintiff's parents separated when he was eight years of age and his father sent him and his siblings to Minnesota when he was eleven "to get rid of us." (Tr. 367). Plaintiff was molested by an older brother and sister when he was between five and ten years old. (Tr. 367; see also Tr. 54 (Plaintiff testified he was molested by his brothers)).

Plaintiff started using drugs at around age eleven. (Tr. 54; see also Tr. 367 (Plaintiff "[s]tarted using THS and alcohol at age thirteen....")). His drug use "gradually increased w/ cocaine including IVDU. cocaine and heroin." (Tr. 367 (Plaintiff started using heroin at age 22); see also Tr. 403 (Plaintiff reporting having "an addictive personality and [that he] has been addicted to many different types of drugs throughout his lifetime with the most recent being heroin, cocaine, and alcohol")).

The record reflects Plaintiff's report that his depression began when he was twelve years of age and he started to lose interest in things. (Tr. 367). Plaintiff also testified that he has had trust issues as long as he can remember:

I don't know how to say it, except for I just don't like people. I don't trust people. I mean, I think that's my biggest issue is trust. And I've gone to therapy for that a very long time, a very long time, both private paid years and years ago, as well as through La Frontera. I mean, I would give my right leg to be what they call normal, but I'm just not.

(Tr. 51-52; see also Tr. 54).

Plaintiff testified that he is unable to function in the workplace because he "shut[s] down[]" and he does not "do well around people.... I get very quiet.... I just withdraw." (Tr. 49-50; see also Tr. 50 (Plaintiff described shutting down as being "just blah. I just don't feel anything.")). His "biggest problem lies... in making it..." to work on a regular basis. (Tr. 50). When he found work, he "could do okay for two or three weeks, maybe four or five if I was lucky, and then I would shut down, and then there went another job, and then I would do it over again. And then there went another job, and then I would lose my place to live, and then I would be out on the street, and then I'd start using again, ...." (Tr. 50-51; see also TR. 55 (Plaintiff would be fired from work because of his absences and "[S]ometimes, you know, when I was there I wasn't there."); Tr. 58).

Plaintiff testified that on some days he does not feel like doing anything and does not shower. (Tr. 47). Although he likes to read, he is unable to concentrate on reading because his medication makes him sleepy. (Tr. 57). He mostly watches television during the day. (Tr. 55, 57 (Plaintiff also tried exercising but his wrist prevented him from continuing to exercise)).

During Plaintiff's testimony at the hearing, the ALJ pointed out that Plaintiff was "bobbing and weaving...", but he was not exhibiting that behavior when the ALJ observed him earlier in the hallway. (Tr. 49). Plaintiff responded that he did not take his medications before the hearing because it caused him to "nod[] out and slobber[]." ( Id. ). He takes the medications because "I do rock a lot, and I sweat a lot[.]" ( Id .; see also Tr. 46). Plaintiff also testified that when he is not taking medication, he is not a "very friendly person. I'm just really short-fused." (Tr. 56).



Whether a claimant is disabled is determined pursuant to a five-step sequential process. See 20 C.F.R. §§404.1520, 416.920. To establish disability, the claimant must show: (1) he has not performed substantial gainful activity since the alleged disability onset date ("Step One"); (2) he has a severe impairment(s) ("Step Two"); and (3) his impairment(s) meets or equals the listed impairment(s) ("Step Three"). "If the claimant satisfies these three steps, then the claimant is disabled and entitled to benefits. If the claimant has a severe impairment that does not meet or equal the severity of one of the ailments listed..., the ALJ then proceeds to step four, which requires the ALJ to determine the claimant's residual functioning capacity[2].... After developing the RFC, the ALJ must determine whether the claimant can perform past relevant work If not, then at step five, the government has the burden of showing that the claimant could perform other work existing in significant numbers in the national economy given the claimant's RFC, age, education, and work experience." Dominguez, 808 F.3d at 405 (citations omitted).


The ALJ found that Plaintiff had "the following severe combination of impairments: substance abuse disorder, carpal tunnel syndrome, hepatitis C, [and] affective disorder...." (Tr. 23). The ALJ also found that Plaintiff's impairments, "including the substance use disorders...", met the listings for 12.04 (affective disorders) and 12.09 (substance addiction disorders). ( Id. ). However, the ALJ also determined that if Plaintiff stopped substance use, Plaintiff would no longer meet the listings, and, upon consideration of his remaining limitations, he would be able to perform medium work.[3] (Tr. 24-26). The ALJ went on to find that if Plaintiff stopped substance abuse, he would be precluded from performing past work, but the Medical-Vocational Rules ("GRIDS"), supported the conclusion that there still remained a significant number of jobs in the national economy that Plaintiff could perform. (Tr. 30). Therefore, the ALJ concluded that:

The substance use disorder is a contributing factor material to determination of disability because the claimant would not be disabled if he stopped the substance use (20 CFR 404.1520(g), 404.1535, 416.920(g), and 416.935). Because the substance use disorder is a contributing factor material to the determination of disability, the claimant has not been disabled within the meaning of the Social Security Act at any time from the alleged onset date through the date of this decision.

(Tr. 31).


Plaintiff argues that: (1) the ALJ's finding of a material substance abuse disorder was unsupported by the evidence of record; (2) the ALJ did not properly consider the opinions from an examining consultant and nurse practitioner; and (3) the ALJ improperly rejected lay testimony.[4] Defendant counters that the ALJ properly considered the evidence and that his decision was supported by substantial evidence.


The Court has the "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. §405(g). The factual findings of the Commissioner shall be conclusive so long as they are based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may "set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted).

Substantial evidence is "more than a mere scintilla[, ] but not necessarily a preponderance.'" Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)); see also Tackett, 180 F.3d at 1098. Further, substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Where "the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)). Moreover, the Commissioner, not the court, is charged with the duty to weigh the evidence, resolve material conflicts in the evidence and determine the case accordingly. Matney, 981 F.2d at 1019. However, the Commissioner's decision "cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir.1998)). Rather, the Court must "consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Id. ( quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).



At the outset, Plaintiff bases much of his argument on two assertions that require discussion. The first addresses Plaintiff's alleged period of abstinence from substance abuse ( see Doc. 17, p. 11; Doc. 20, p. 7) and the second involves Plaintiff's position that "the Administration's non-examining consultants[] [found] that the Plaintiff's prior substance abuse was not material herein." (Doc. 20, p. 8; see also Doc. 17, p. 11).


Plaintiff argues that he had not "abus[ed] drugs for nearly a year prior to his amended alleged onset date of 10/03/12, which was supported by concrete laboratory evidence (clean drug screens) from a licensed facility, for one year leading up to the hearing and further supported by the treating source records and opinion letters." ((Doc. 17, p. 10 (citing Tr. 682-91 ("clean" lab tests from October 3, 2012 to May 3, 2013); Tr. 701-05 ("clean" lab tests from June 30, 2013 to October 7, 2013); see also Doc. 20, p. 7 (Plaintiff's "proven sobriety period was of a ...

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