United States District Court, D. Arizona
J. Markovich United States Magistrate Judge
Kelly Monroe Ogden brought this action pursuant to 42 U.S.C.
§ 405(g) seeking judicial review of a final decision by
the Commissioner of Social Security
(“Commissioner”). Plaintiff raises two issues on
appeal: 1) the Administrative Law Judge (“ALJ”)
failed to perform an appropriate analysis under Social
Security Ruling (“SSR”) 13-2p to determine
whether Plaintiff’s alcohol use was material to the
determination of disability; and 2) the ALJ gave
inappropriate weight to the treating source opinions of Dr.
Kendra Drake and Nurse Practitioner Diane Thomas. (Doc. 16).
the Court are Plaintiff’s Opening Brief,
Defendant’s Response, and Plaintiff’s Reply.
(Docs. 16, 21, & 22). The United States Magistrate Judge
has received the written consent of both parties and presides
over this case pursuant to 28 U.S.C. § 636(c) and Rule
73, Federal Rules of Civil Procedure. For the reasons stated
below, the Court finds that the Commissioner’s decision
should be affirmed.
filed an application for supplemental security income on July
2, 2014. (Administrative Record (“AR”) 116).
Plaintiff alleged disability beginning on May 13, 2014 based
on depression, anxiety, stroke, partial paralysis,
incontinence, homelessness, and indigency. (AR 116).
Plaintiff’s application was denied upon initial review
(AR 133) and on reconsideration (AR 134). A hearing was held
on February 9, 2017 (AR 76) and a second hearing was held on
July 26, 2017 (AR 99), after which ALJ Laura Speck Havens
found, at Step Five, that Plaintiff was not disabled because
he could perform work existing in significant numbers in the
national economy. (AR 24). On July 24, 2018 the Appeals
Council denied Plaintiff’s request to review the
ALJ’s decision. (AR 1).
was born on March 30, 1973, making him 41 years old at the
alleged onset date of his disability. (AR 116). He previously
filed applications in 2006 and 2011 that were denied. (AR
117). Plaintiff attended the 9th grade four times and did not
pass it; he then withdrew from school. (AR 80). He has worked
primarily as a dishwasher. (AR 295).
saw Dr. Kendra Drake on February 15, 2017 to establish care
for his history of stroke. (AR 1062). Plaintiff was using a
walker but could drive, and reported pain on the left side
with pins and needles sensation and spasms of the right hand.
Dr. Drake noted the following on exam: abstraction and
judgment are questionable; memory function for recent and
remote is poor; patient follows complex commands; muscle bulk
and tone normal throughout; fine coordination in the hands is
poor; patient rises from chair with difficulty; ambulates
with a cane; hemiparetic gait on the left; sensitive to touch
on the left. (AR 1063). Dr. Drake assessed history of right
pontine hemorrhage with extension into right cerebellum and
left sided neuropathic pain. (AR 1063). The plan was to refer
Plaintiff to occupational therapy to assess his need for a
walker and improve his gait, and try Gabapentin for
neuropathic pain. (AR 1064).
saw Dr. Drake on April 20, 2017 for a follow-up. (AR 1106).
He reported inability to walk some days and more problems
with spasms and pain in his right hand. He tried Gabapentin
with minimal improvements in his left-sided paresthesias. Dr.
Drake noted the following on exam: abstract and judgment are
questionable; mood and affect appropriate; attention span is
normal; memory function for recent and remote is fair;
patient follows complex commands; fine coordination testing
of the hands is poor; patient rises from chair with
difficulty; ambulates with a cane; hemiparetic gait on the
left; sensitive to touch on the left. (AR 1107). The plan was
a brain MRI due to fluctuations and possible worsening of
symptoms, nerve study for right arm pain and spasms, and
increase Gabapentin. (AR 1108). A May 26, 2017 MRI showed no
acute intracranial abnormality, small chronic hemorrhage in
the right lateral aspect of upper pons, and unremarkable MR
angiography of the brain and neck. (AR 1116). A May 30, 2017
EMG/NCS nerve study was normal. (AR 1109).
Drake completed a physical residual functional capacity
questionnaire on July 11, 2017. (AR 1155). Plaintiff’s
diagnoses were right pontine hemorrhage with extension into
cerebellum, left neuropathic pain and paresthesias,
hypertension, and dyslipidemia, and his prognosis was fair.
His symptoms were problems with gait and balance, and
left-sided pain and tingling. She indicated the following
restrictions: Plaintiff’s pain or other symptoms were
severe enough to interfere with attention and concentration
needed to perform simple work tasks “frequently”;
he did not need to lie down or recline for more than 1.5
hours during the workday; could sit for 2 hours; stand/walk
for 1 hour; used a cane; needed to shift positions every 10
minutes; could occasionally lift 10 pounds; had no
significant limitations with reaching, handling, or
fingering; did not need breaks beyond the usual 15 minutes in
the morning and afternoon and 30 minute lunch; was not a
malingerer; and would be absent 4 or more days a month due to
impairments or treatment. (AR 1155–1156). Dr. Drake did
not note any additional limitations that would affect
Plaintiff’s ability to perform work on a sustained
basis. (AR 1156).
N.P. Diane Thomas
saw N.P. Diane Thomas for a new patient visit on November 30,
2016. (AR 1082). He reported a history of stroke with partial
left side paralysis, neuropathy, and hypersensitivity, some
memory loss, drinking 6–12 beers a day to help him
sleep, depression better, and that he used a cane or walker
all the time. (AR 1082–1083). On exam Thomas noted left
lower extremity with some loss of strength causing balance
issues, left hand grip weaker than right, tremor to hands,
and normal mood and affect. (AR 1084). Plaintiff declined to
decrease his drinking, and his depression screening results
showed no sign of depression. (AR 1086). The recommendation
was to follow-up in 2 months to recheck cholesterol, and
limit alcohol and smoking. (AR 1088).
saw Thomas again on March 1, 2017 for a follow-up. (AR 1077).
He reported no alcohol for 5 days and no withdrawal symptoms,
and that his depression was better. On exam he was ambulatory
without difficulty, had a steady gait, upper and lower
extremity strength was equal and appropriate for age, left
side of the body was tender to gentle palpation, and
psychiatric exam was normal. (AR 1079).
completed a physical residual functional capacity
questionnaire and noted that she had three appointments with
Plaintiff from November 30, 2016 to the date she completed
the form, July 5, 2017. (AR 1151). Plaintiff’s
diagnoses were stroke with residual weakness, alcoholism,
HTN, HLD, GERD, and manic depressive, and his prognosis was
stable. His symptoms were trouble with balance, loses control
of left leg, needs cane, and cognition decreased from last
year. She indicated the following restrictions:
Plaintiff’s pain or other symptoms were severe enough
to interfere with attention and concentration needed to
perform simple work tasks “constantly”; he needed
to lie down or recline for more than 1.5 hours a day; could
sit 5–6 hours; stand 0 hours but “brief movements
over 5–10 minutes”; he used a walker; needed to
shift positions every 90 minutes; could never lift; had
significant limitations with reaching, handling, and
fingering and could reach and handle for 2% of the workday
but never finger; needed breaks because some days he was
unable to concentrate and his arm movements were limited by
pain and coordination; he was not a malingerer; he would miss
4 or more days a month; and he had additional limitations of
bilateral tremor, weakness, and cognitive/memory delays from
his stroke, and alcoholism. (AR 1151–1152).
Dr. Ashok Khushalani
second hearing before the ALJ on July 26, 2017, Dr.
Khushalani testified as a medical expert. He opined that
Plaintiff’s primary mental health impairment was
alcohol dependency and noted that Plaintiff had been
diagnosed with major depressive disorder mild, cognitive
disorder, depression, and anxiety. (AR 105). Dr. Khushalani
stated that Plaintiff’s impairments did not meet or
equal a listing. (AR 106). He opined that Plaintiff would
have “difficulty doing detailed and complex
tasks” and that his “exposure to [the] public
should be minimal or sporadic or infrequent.” Those
were Plaintiff’s only mental health work-related
restrictions. When the ALJ questioned whether exposure to the
public should be occasional, meaning “very little to
one-third of the time, ” Dr. Khushalani stated yes. Dr.
Khushalani further stated that these restrictions were
without the use of alcohol and that if Plaintiff chose to
drink, “his parameters will change drastically.”
questioning by Plaintiff’s attorney as to what
Plaintiff’s limitations would be with alcohol, Dr.
Khushalani stated “I think he’s had mild
difficulties in most of the parameters in addition to
understanding information and [INAUDIBLE] concentration as
well as manage himself.” (AR 107). He noted that in
Plaintiff’s last exam, despite drinking two beers, the
diagnosis was cognitive mild, and that even when Plaintiff
was using alcohol, his depression was characterized as mild.
(AR 108). Dr. Khushalani thought that the marked limitation
in carrying out simple instructions that Dr. Abreu assessed
would be in the context of using alcohol. When asked whether
he agreed with Dr. Abreu’s opinion that Plaintiff had a
long history of drinking, likely causing irreversible
cognitive damage, Dr. Khushalani stated:
I don’t think--it would be hard to project that . . .
even though he says there’s cognitive difficulty, first
of all, he’s not sure if it was because of alcohol or
it was of the stoke and all [sic] exam, the deficits are not
that severe [INAUDIBLE] So there’s a good chance that
he will recover. I cannot categorically say that he will not
(AR 108–109). Dr. Khushalani further opined that Dr.
Abreu’s assessment of a marked limitation in simple
tasks was really not credible because Plaintiff “was
able to do several simple tasks, which would indicate that he
should not have any difficulty doing simple tasks.” (AR
109). When Plaintiff’s attorney asked whether the
marked limitation Dr. Khushalani thought Plaintiff would have
with alcohol was based on an exhibit or the doctor’s
opinion experience, Dr. Khushalani stated that it was based
on his 35 years of experience.