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Tearne v. Commissioner of Social Security Administration

United States District Court, D. Arizona

March 29, 2019

Daniel Joseph Tearne, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          Leslie A. Bowman United States Magistrate Judge.

         The plaintiff filed this action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g). (Doc. 1, p. 1)

         The Magistrate Judge presides over this case pursuant to 28 U.S.C. § 636(c) having received the written consent of both parties. See Fed.R.Civ.P. 73; (Doc. 14)

         The ALJ found that the claimant's drug addiction was material to her determination of disability and denied benefits. The ALJ's decision is supported by substantial evidence and free from legal error. It is affirmed.

         PROCEDURAL HISTORY

         On January 2, 2015, Tearne constructively filed applications for disability insurance benefits and for supplemental security income pursuant to Title II and Title XVI of the Social Security Act respectively. (Tr. 21) He alleged disability beginning on May 1, 2013, due to anxiety with panic attacks, bipolar disorder with psychosis, depression, ADHD (attention deficit hyperactivity disorder), and memory loss. (Tr. 21, 242-243)

         His applications were denied initially and upon reconsideration. (Tr. 122-130); (Tr. 133-139) Tearne requested review and appeared with counsel at a hearing before Administrative Law Judge (ALJ) MaryAnn Lunderman on September 5, 2017. (Tr. 41) In her decision, dated October 25, 2017, the ALJ found that Tearne was not eligible for benefits because if he stopped his substance abuse, there are jobs he could perform in the national economy. (Tr. 32) Tearne appealed, but on March 22, 2018, the Appeals Council denied review making the decision of the ALJ the final decision of the Commissioner. (Tr. 1-4) Tearne subsequently filed this action appealing that final decision. (Doc. 1)

         Claimant's Work History and Medical History

         Tearne was born in December of 1976. (Tr. 32) He was 40 years old when the ALJ issued her decision in October of 2017. (Tr. 32, 34) He has a GED. (Tr. 45)

         From 2008 to 2011, Tearne worked loading trucks and operating a forklift for his family's salvage business. (Tr. 60-62) After the business failed, Tearne worked odd jobs. (Tr. 46) He worked for Tin Man Recycling and then for Prep and Pastry restaurant. (Tr. 46) Tearne was asked to leave the restaurant when he had an argument with the manager about the advantages of scraping food off the plates before they went into the dish sink. (Tr. 53-54) He asserts that “my disabilities are to the point that they're so severe that . . . if I were to go back to work or any type of stuff like that, it's just going to be a disappointment to me.” (Tr. 46)

         At the hearing, Tearne reported that, “the last couple months I've been experimenting with marijuana.” (Tr. 48) He occasionally uses heroin “just as a social drug or what have you.” (Tr. 57) The medical record indicates that Tearne also has a recurring addiction to methamphetamines. (Tr. 425)

         Vocational expert Shirley Ripp testified at the hearing that someone with the claimant's age and vocational and educational background with no exertional limitations but limited to “simple tasks learned in 30 days or less or by brief demonstration with minimal change in the task as assigned and requiring less than occasional, seldom or [rare] contact with the public” and requiring at most only “occasional contact with supervisors and coworkers” could not perform Tearne's past relevant work. (Tr. 58, 62-63) But such a person could work as a salvage laborer, DOT 929.687-022, or a laboratory equipment cleaner, DOT 381.687-022, or a janitor, DOT 381.687-018. (Tr. 58, 62-63)

         Counsel asked Ripp about the treating psychiatrist, who opined three years ago that Tearne has “Category IV” limitations, which preclude for 20 percent or more of the day, the activities of “maintaining sufficient [] attention [and] concentration to appropriately complete tasks in a timely manner, complete tasks without extra supervision or assistance, working in coordination with or proximity to others without being distracted, [and] respond[ing] appropriately to changes in a routine work setting.” (Tr. 64-65) This psychiatrist further opined that Tearne has “Category III” limitations, which preclude for 15 percent of the time, the activities of “accepting instructions and responding appropriately to criticism from supervisor, interacting appropriately with the general public, and dealing with normal work stress.” (Tr. 64-65) Ripp opined that with these limitations, Tearne would be disabled. Id.

         Medical Record

         In September of 2015, Michael P. Christiansen, Ph.D., conducted a psychological examination of Tearne for the state disability determination services. (Tr. 410) He performed a face-to-face interview and administered a number of psychological tests. (Tr. 410) Christiansen diagnosed post traumatic stress disorder (PTSD), attention-deficit/hyperactivity disorder (ADHD) and antisocial personality disorder. (Tr. 417) He opined that Tearne is moderately limited in his “ability to maintain concentration and attention, work in coordination or proximity to others without being distracted by them, and complete a normal work schedule without interruptions from anxiety and irritability associated with symptoms of ADHD and PTSD.” (Tr. 418) He is moderately limited in his “ability to get along with co-workers, respond appropriately to supervision, maintain socially appropriate behavior, and adhere to basic standards of neatness.” (Tr. 418) He is otherwise not significantly limited. (Tr. 418)

         In October of 2015, Laura Eckert, Ph.D., reviewed the medical record for the disability determination service and offered an opinion of Tearne's mental impairment. (Tr. 74) Eckert diagnosed affective disorder and anxiety disorder. (Tr. 72) She then evaluated Tearne's “B” listing criteria, which gauge the severity of his limitations. See 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). Eckert found Tearne has “mild” restrictions of activities of daily living; “moderate” difficulties in maintaining social functioning; “moderate” difficulties in maintaining concentration, persistence, or pace; and one or two episodes of decompensation. (Tr. 72) Eckert ...


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