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Wood v. Colvin

United States District Court, D. Colorado

September 20, 2017

H. DEAN WOOD, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          MICHAEL J. WATANABE, United States Magistrate Judge

         The government determined that Plaintiff is under a disability, but that a substance use disorder is a contributing factor material to the determination of disability. (AR 28).[1] Accordingly, Plaintiff was found to not be disabled under the Social Security Act. Plaintiff has asked this Court to review that decision. The Court has jurisdiction under 42 U.S.C. § 405(g), and both parties have agreed to have this case decided by a U.S. Magistrate Judge under 28 U.S.C. § 636(c).

         Standard of Review

         In Social Security appeals, the Court reviews the decision of the administrative law judge (“ALJ”) to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied. See Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007). “Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.” Raymond v. Astrue, 621 F.3d 1269, 1271-72 (10th Cir. 2009) (internal quotation marks omitted). The Court “should, indeed must, exercise common sense” and “cannot insist on technical perfection.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Court cannot reweigh the evidence or its credibility. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).


         At the second step of the Commissioner's five-step sequence for making determinations, [2] the ALJ found that Plaintiff “has the following severe impairments: degenerative disc disease associated with the cervical and lumbar regions of the spine; peripheral arterial disease; and cannabis dependence causing a mood or adjustment disorder with anxiety and depressed mood as well as a personality disorder.” (AR 30). The ALJ then determined that Plaintiff has the following residual functional capacity (“RFC”), as is relevant here:

. . . [Plaintiff] has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b). However, mentally, [Plaintiff] is limited to simple, routine low stress work, defined as requiring only occasional decision making and occasional adapting to workplace change. Additionally, [Plaintiff] should have no more than occasional contact with coworkers and supervisors. [Plaintiff] should have no contact with the public.

(AR 33). The ALJ determined that “there are no jobs that exist in significant numbers in the national economy that [Plaintiff] can perform . . . .” (AR 37). The ALJ further determined that Plaintiff would continue to have a severe impairment or combination of impairments associated with degenerative disc disease and peripheral arterial disease if he stopped his substance abuse. (AR 37). The ALJ found that any mental limitations would be non-severe if Plaintiff stopped his substance abuse. (AR 37). Accordingly, the ALJ concluded that if Plaintiff stopped his substance abuse, he would have an RFC to perform the “full range of light work as defined in 20 CFR 416.967(b).” (AR 38). 20 C.F.R. § 416.967(b) defines light work as follows:

Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.

C.F.R. § 416.967(b). The ALJ determined that Plaintiff could “stand and/or walk up to six hours during an eight-hour workday.” (AR 41). The ALJ also concluded that if Plaintiff stopped the substance use, he “would be able to perform past relevant work as Cashier's Supervisor, Cashier II and/or Printing Machine Operator.” (AR 42). The ALJ explained that [t]his work does not require the performance of work-related activities precluded by the [RFC] [Plaintiff] would have if he stopped the substance use [ ].” (AR 42-43). Ultimately, the ALJ concluded that Plaintiff would not be disabled if he stopped the substance use and “[b]ecause the substance use disorder is a contributing factor material to the determination of disability, [Plaintiff] has not been disabled within the meaning of the Social Security Act at any time from the date the application was filed through the date of this decision.” (AR 44).

         Plaintiff asserts four reversible errors: first, that the ALJ failed to sufficiently develop the record; second, that the ALJ's determination of Plaintiff's physical capacity to perform work was not based on substantial evidence; third, that the ALJ's residual functional capacity findings failed to adequately address Plaintiff's pain; and fourth, that the ALJ's conclusion that Plaintiff's use of marijuana constituted “drug addiction” within the meaning of 20 C.F.R. § 416.935 was legally erroneous. (Docket No. 15 at 5).

         I. Duty to Develop the Record

         Plaintiff first argues that the ALJ was required to further develop the record with regard to his alleged functional limitations. (Docket No. 15 at 22-23). Plaintiff also argues that the ALJ failed to order a consultative examination of his functional capacity to do work. (Id. at 23).

         With regard to the ALJ's duty to develop the record regarding Plaintiff's alleged functional limitations, Plaintiff points to the ALJ's notations regarding the lack of a functional opinion in the record and states that “the ALJ appears to have taken that lack as an indication that [Plaintiff] had no functional limitations rather than as an indication that the record needed to be developed further.” (Docket No. 15 at 22). As Defendant argues, 20 C.F.R. § 416.920b(b) makes clear that an ALJ is not required to develop the record in every circumstance. Rather, the regulation explains that an ALJ may further develop the record if the evidence submitted “is insufficient or inconsistent” and the ALJ is not able to make a determination or decision because of the insufficient or inconsistent evidence. An ALJ must “fully and fairly develop[ ] the record as to material issues, ” but “does not have to exhaust every possible line of inquiry.” Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997) (internal quotations and citation omitted). “The standard is one of reasonable good judgment.” Id. Further, Plaintiff bears the burden of establishing a prima facie case of disability at step four, and he was represented by counsel at the administrative hearing. Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003); Cowan v. Astrue, 552 F.3d 1182, 1188 (10th Cir. 2008) (“[W]hen the claimant is represented by counsel at the administrative hearing, the ALJ should ordinarily be entitled to rely on the claimant's counsel to structure and present claimant's case in a way that the claimant's claims are adequately ...

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