Roderic L. v. Kijakazi

• Decision Date: 04 May 2022
• Docket Number: 4:21-CV-04028-VLD
• Citation: Roderic L. v. Kijakazi, 4:21-CV-04028-VLD (D. S.D. May 04, 2022)
• Parties: RODERIC L., Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION; Defendant.
• Court: U.S. District Court — District of South Dakota

RODERIC L., Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION; Defendant.

No. 4:21-CV-04028-VLD

United States District Court, D. South Dakota, Southern Division

May 4, 2022

MEMORANDUM OPINION AND ORDER

VERONICA L. DUFFY, United States Magistrate Judge.

INTRODUCTION

Plaintiff Roderic L., seeks judicial review of the Commissioner's final decision denying his application for Supplemental Security Income under Title XVI of the Social Security Act.^[1]

Mr. L has filed a complaint requesting reversal of the Commissioner's final decision denying him disability benefits and “remand[ing] for further development under the fourth sentence of 42 U.S.C. [§] 405(g).” See Docket Nos. 1, 17, & 18. The Commissioner asks the court to affirm its decision below. See Docket No. 19.

This appeal of the Commissioner's final decision denying benefits is properly before this court pursuant to 42 U.S.C §§ 1383(c)(3) and 405(g). The parties have consented to this United States Magistrate Judge handling this matter pursuant to 28 U.S.C. § 636(c). See Docket No. 7.

FACTS^[2]

A. Procedural History

This action arises from Mr. L.'s application for Supplemental Security Income (“SSI”) with a protected filing date of May 16, 2018, alleging disability starting March 1, 2018, due to a broken left collar bone, COPD, high blood pressure, high cholesterol, acid reflux, depression, seizure disorder, blurry vision, difficulty concentrating, memory loss, shortness of breath, and unspecified heart issues. T262, 264, 270, 293.^[3]

Mr. L.'s claims were denied at the initial and reconsideration levels, and Mr. L. requested an administrative hearing. T102, 112, 119.

Mr. L.'s administrative law judge (“ALJ”) hearing was held on April 3, 2020, where different counsel represented Mr. L. T36. An unfavorable decision was issued May 13, 2020, by the ALJ. T12.

At step one of the evaluation, the ALJ found that Mr. L. “ha[d] not engaged in [substantial gainful activity] since March 1, 2018, the alleged onset [of disability] date.” T17.

At step two, the ALJ found that Mr. L. had a severe impairment of “epilepsy; chronic obstructive pulmonary disease (COPD); depression; and alcohol abuse.” Id. The ALJ found that each of those impairments “significantly limited [Mr. L.'s] ability to perform basic work activity for a continuous period of 12 months or more.” Id. The ALJ also found that Mr. L.'s medically determinable impairments of “GERD, high blood pressure, high cholesterol, and history of a fractured collarbone with repair” were “non-severe.” T18.

At step three, the ALJ found “[e]ven with substance use, [Mr. L.] did not have any impairment or a combination thereof meeting or medically equaling” a listing. Id. The ALJ stated Mr. L. had “no” limitation “[i]n understanding, remembering, or applying information.” Id. The ALJ stated Mr. L. reported decreased memory, “but such impairment relates more to alcohol usage.” Id. The ALJ found Mr. L. had “moderate” limitations “[i]n interacting with others” and stated, “[h]e has presented as pleasant and cooperative with appropriate behavior.” T18-19. “However, with alcohol use, there are reports of suicidality and anxiety, which could influence his ability to get along with others or handle stress.” T19.

The ALJ found Mr. L. had a “mild” limitation in “concentrating, persisting, or maintaining pace.” Id. The ALJ found “marked” limitations “in adapting or managing oneself” and stated “[t]he medical record demonstrates diminished functioning due to alcohol abuse, ” noting three psychological inpatient stays for suicidal ideation having cut his wrists and overdosed on his medication. Id. The ALJ stated, “no State agency psychological consultant concluded that the claimant meets a mental listing with substance abuse.” T20.

The ALJ determined that, including substance abuse, Mr. L. would have a residual functional capacity (“RFC”) to “lift and carry 50 pounds occasionally and less than 25 pounds frequently. He can sit a total of 6 hours, as well as stand and walk, combined, a total of 6 hours in an 8-hour workday. He has no limits reaching. He can climb stairs occasionally, but must avoid climbing ladders, scaffolds, and similar devices. He can frequently balance, crouch, kneel, stoop and crawl.” Id. The ALJ stated Mr. L.'s RFC included “mild limits in understanding, remembering, and carrying out instructions, . . . mild limits in concentration, persistence, and pace[, ] . . . moderate limits interacting” with the public, co-workers and supervisors, and a marked limitation “in adapting and [he would] likely be absent two to three days of work per month.” Id.

The ALJ found that “[Mr. L.'s] statements concerning the intensity, persistence, and limiting effects [were] generally consistent with the evidence when substance abuse is included.” T21.

The ALJ found at step four that Mr. L. was “unable to perform any past relevant work.” T22-23.

The ALJ found “[Mr. L.] is an individual of advanced age, ” as defined in 20 C.F.R. § 416.963. T23.

The ALJ found at step five, relying on the testimony of a vocational expert, that, “including substance use disorder, there were no jobs existing in significant numbers in the national economy” Mr. L. could perform. Id.

The State agency medical consultants found no exertional limitations. T92. They, however, did find postural limitations based on a right clavicle fracture and environmental limitations based on Mr. L.'s medical history of seizure disorder and chronic obstructive pulmonary disease (“COPD”). T92-94. The ALJ accepted and incorporated Mr. L.'s reported medical history of seizure disorder and COPD into his findings. T23. The ALJ found Mr. L.'s medical history was consistent with a medium level of exertion and range of work with postural and environmental limitations. T20, 22, 25.

The ALJ considered the opinions of a state agency psychological consultant as to Mr. L.'s limitations including alcohol abuse, noting they found “marked limits in paragraph ‘b' criteria, except for interaction, given his history of alcohol abuse.” T22. The ALJ also noted that “[p]sychological expert, Kevin Schumacher, Ph.D., testified that [Mr. L.] would have marked limits in these areas, when actively using alcohol.” Id. The ALJ found “these opinions [were] persuasive and consistent with the record.” Id.

The ALJ found that Mr. L.'s “substance abuse disorder [was] a contributing factor material to determining disability because [Mr. L.] would not have a disability if he stopped substance use.” T27.

The ALJ then found that, if Mr. L. stopped his substance abuse, he would still have severe impairments, including seizures, depression, and COPD. T23-24.

The ALJ found that “[i]f [Mr. L.] stopped substance use, he would not have an impairment or combination thereof meeting or medically equaling” a listing. T24. The ALJ stated Mr. L. had “no” limitation “[i]n understanding, remembering, or applying information.” Id. The ALJ found Mr. L. had “moderate” limitation “[i]n interacting with others.” Id. The ALJ found Mr. L. had a “mild” limitation in “concentrating, persisting, or maintaining pace, ” and a “moderate” limitation in “adapting or managing oneself.” T24-25.

The ALJ determined that if, Mr. L. stopped his substance abuse, he would have an RFC to perform medium work as follows: “lift and carry 50 pounds occasionally” and “less than 25 frequently.” T25. “He can sit a total of 6 hours, as well as stand and walk, combined, a total of 6 hours in an 8-hour workday. He has no limits reaching. He can climb stairs occasionally, but must avoid climbing ladders, scaffolds, and similar devices. He can frequently balance, crouch, kneel, stoop, and crawl.” Id. The ALJ stated Mr. L.'s RFC included “mild limits in understanding, remembering, and carrying out instructions, . . . mild limits in concentration, persistence, and pace[, ] . . . moderate limits in interacting” with the public, co-workers and supervisors, and no limits in adapting, or ongoing absences. T25-26.

The ALJ found at step four, based on an RFC that excluded Mr. L.'s substance abuse, that Mr. L. would be “unable to perform any past relevant work.” T25, 27.

The ALJ found at step five, relying on the testimony of a vocational expert, that “[i]f [Mr. L.] stopped the substance use . . . there are jobs existing in significant numbers in the national economy [Mr. L.] can perform.” T27.

Mr. L. requested review of the ALJ's denial from the Appeals Council, which was denied making the ALJ's decision final. T1, 260. Mr. L. timely filed this action.

B. Medical Evidence Before the Adjudicated Period Began on March 1, 2018

Mr. L. was seen at the Rapid City Regional Hospital on November 23, 2017, with complaints of right-sided back pain that started months ago but worsened that day. T503. Mr. L. also complained of burning urination, rightsided abdominal pain, nausea, and vomiting. Id. Mr. L. denied any other physical complaints. Id. Mr. L.'s pain was exacerbated with movement and palpation. Id. Examination revealed no edema in the musculoskeletal system, right CVA tenderness, and the psychiatric finding was that Mr. L. was uncooperative. T505. Toradol was administered and he was discharged. T507.

Mr. L. was seen at the Rapid City Regional Hospital on December 1, 2017, again with complaints of right-sided flank pain. T508. Review of Systems was negative for back and neck pain and negative for weakness and headaches. T509. Examination revealed no edema, tenderness in the sharp right flank, and normal mood and affect. Id. Fluids and pain medication were given, and he was discharged. T511.

Mr. L was seen at the Rapid City Regional Hospital on December 20, 2017, with right-sided pain that had been...