United States District Court, D. Arizona
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 ...