Flores v. Kijakazi
| Decision Date | 03 February 2022 |
| Docket Number | 6:20-CV-085-H-BU |
| Parties | REYNALDO FLORES R., Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Northern District of Texas |
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
United States Magistrate Judge John R. Parker made Findings Conclusions, and a Recommendation (FCR) regarding the final adverse decision of the Commissioner of Social Security on December 13, 2021. See Dkt. No. 24. Judge Parker recommended that the Court affirm the Commissioner's decision. Id. at 16. Plaintiff filed an objection to the FCR. Dkt. No. 25. For reasons stated below, the Court accepts and adopts the FCR (Dkt. No. 24). The Court affirms the final adverse decision of the Commissioner, and this case is dismissed.
In his appeal, plaintiff challenged the ALJ's decision arguing: (1) that the ALJ, without medical evidence, determined he had a substance use disorder; (2) that the ALJ did not have substantial evidence to conclude that plaintiff would not be disabled if he stopped using substances;[1] (3) that the ALJ substituted her opinions for those of the medical sources in determining his residual functioning capacity (RFC); and (4) that there are not jobs that he can perform existing in the economy in significant numbers because the jobs identified by the vocational expert-whom the ALJ relied upon-are inconsistent with the RFC. See Dkt. No. 19 at 2-3; 23. Plaintiff objects to the FCR based on arguments (1), (2), and (3), but raises no objection as to (4). See Dkt. No. 25.
The Court “must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3); see 28 U.S.C. § 636(b)(1). All uncontested portions of the FCR are reviewed only for plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1); Serrano v. Customs & Border Patrol, U.S. Customs & Border Prot., 975 F.3d 488, 502 (5th Cir. 2020). Therefore, the Court reviews the first three arguments de novo and the fourth for plain error.
In evaluating a disability claim, an ALJ performs a five-step analysis to determine whether: “(1) the claimant is presently working; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment listed in Appendix 1 of the Social Security regulations; (4) the impairment prevents the claimant from doing past relevant work; and (5) the impairment prevents the claimant from doing any other substantial gainful activity.” Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007); see 20 C.F.R. § 404.1520.
And in determining whether a substance use disorder is a contributing factor material to the determination of disability, the ALJ must first perform the five-step analysis to determine if the plaintiff is disabled based on current physical and mental limitations. See 20 C.F.R. § 416.935(b)(1); 20 C.F.R. § 404.1535 (same provision); Kellum v. Comm'r of Soc. Sec, No. 1:19-CV-188-DAS, 2021 WL 1083856, at *3 (N.D. Miss. Mar. 19, 2021) (quoting Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001)). If, in the first-pass analysis, the ALJ determines that the plaintiff is disabled and that there is “medical evidence” of “drug addiction or alcoholism, ” the ALJ must then proceed with a second-pass analysis to determine if the claimant would be found disabled if he or she stopped drugs or alcohol. See Kellum, 2021 WL 1083856, at *3. “The burden of proving that substance abuse is not a material contributing factor is on the claimant.” Id.
“The ALJ has a duty to develop the facts fully and fairly relating to an applicant's claim for disability benefits.” Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995). In reviewing de novo an eligibility determination, “[a] court will reverse the ALJ's decision as not supported by substantial evidence if the claimant shows that (1) the ALJ failed to fulfill his duty to develop the record adequately and (2) that failure prejudiced the plaintiff.” Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012) (citing Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996)). “To establish prejudice, a claimant must show that he ‘could and would have adduced evidence that might have altered the result.'” Brock, 84 F.3d at 728 (quoting Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984)).
A court's review of an ALJ's decision is deferential. Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999). The Court “may not reweigh the evidence in the record, nor try the issues de novo, nor substitute [its] judgment for that of the [ALJ], even if the evidence preponderates against the [ALJ's] decision.” Id. (quoting Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988)). “Conflicts in the evidence are for the [ALJ] and not the courts to resolve.” Id. (quoting Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990)).
In the first-pass analysis, the ALJ determined that plaintiff was disabled based on then-existing physical and mental limitations. See Dkt. No. 17-1 at 18-20. And the ALJ also determined that there was medical evidence to show that the plaintiff had a substance use disorder. See Id. But in the second-pass, the ALJ found that: (1) “if the claimant stopped the substance use, the claimant would have the residual functional capacity to perform light work, ” (2) “there would be jobs that exist in significant numbers in the national economy that the claimant could perform, ” and (3) “[b]ecause the substance use disorder is a contributing factor material to the determination of disability, the claimant has not been disabled within the meaning of the Social Security Act.” Id. at 24, 31-32. The Court reviews these conclusions in light of the plaintiffs objections.
First, plaintiff objects that the “ALJ has not established that he has a medically determinable substance use disorder.” Dkt. No. 25 at 3. It is undisputed that plaintiff had a history of substance abuse-including cocaine and alcohol-which resulted in several criminal offenses leading to incarceration between 2005 and 2015. Dkt. No. 17-1 at 18. And in forming the conclusion that plaintiff had a substance use disorder, the ALJ relied on medical records, which diagnose that as of July and September 2019, the plaintiff suffered from “Cannabis Use Disorder, ” “Alcohol Use Disorder, in early recovery -no use >6 months, ” and “Cocaine Use Disorder, in recovery -no use for several years.” Id. at 698, 683, 20, 23.
At the hearing, on September 23, 2019, plaintiff stated he used cocaine many years ago but no longer uses it and that he does not drink alcohol anymore. Id. at 50-51. However, plaintiff admitted that he uses marijuana “maybe two, three times a month” and used it about five days before the hearing. Id. at 51. So the testimony and the medical records conflict somewhat in that the medical records reflect a continuing marijuana use disorder. But the issue of fact was for the ALJ to resolve. See Brown, 192 F.2d at 496; see also Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). And in any case, the ALJ relied on medical evidence in forming her conclusion that plaintiff had a substance use disorder.
Second, the plaintiff objects that even accepting that a substance use disorder existed, the ALJ improperly determined without substantial evidence that such disorder was a material factor contributing to a determination of disability. Dkt. No. 25 at 3. As mentioned above, “[t]he burden of proving that substance abuse is not a material contributing factor is on the claimant.” Kellum, 2021 WL 1083856, at *3. And plaintiff failed to bear that burden. Plaintiffs testimony at the hearing confirmed that he continued to use marijuana. Dkt. No. 17-1 at 51. And in performing the second-pass analysis to determine whether the plaintiff would be found disabled if he stopped using substances, the ALJ relied on medical reports to determine that claimant's mental impairments would abate if he stopped using substances. Id. at 21-23. Specifically, the ALJ noted that plaintiffs adherence to taking medications and remission from substance use showed marked improvement in his mental status examinations from 2018 through 2019. Id. at 22-23.
And this narrative is more or less supported by reports from the mental status examinations. See Id. at 539 (), 586 ( denial of using illicit substances recently, adherence to medication regimen, and intact attention, though his affect is still guarded), 682 ( that patient missed some medication doses and regularly uses marijuana but that he is cooperative and responsive), 697 ( usual state of apprehension and hand tremors but appropriate levels of attention and concentration). Based on this and other medical evidence, the ALJ determined that plaintiffs mental impairments would not cause two marked limitations or one extreme limitation if he stopped using substances. Id. at 23. And therefore, the plaintiff was found to have only a moderate impairment of his ability to adapt and manage himself. Id.
As mentioned above, the Court's review of the ALJ's decision is deferential and the Court may not “reweigh the evidence in the record” or “substitute [its]...
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