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Ogden v. Commissioner of Social Security Administration

United States District Court, D. Arizona

September 19, 2019

Kelly Monroe Ogden, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          Eric J. Markovich United States Magistrate Judge

         Plaintiff 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).

         Before 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.

         I. Procedural History

         Plaintiff 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).

         II. Factual History[1]

         Plaintiff 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).

         A. Medical Testimony

         i. Dr. Kendra Drake

         Plaintiff 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).

         Plaintiff 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).

         Dr. 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).

         ii. N.P. Diane Thomas

         Plaintiff 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).

         Plaintiff 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).

         Thomas 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).

         iii. Dr. Ashok Khushalani

         At the 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.” (AR 107).

         On 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 be [INAUDIBLE]

(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.

         B. ALJ&rs ...


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