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Lipscomb v. Berryhill

United States District Court, E.D. Virginia, Richmond Division

March 26, 2018

SANDRA JEAN LIPSCOMB, pro se Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          David J. Novak United States Magistrate Judge

         On October 22, 2012, Sandra Jean Lipscomb ("Plaintiff) protectively applied for Supplemental Security Income ("SSI") under the Social Security Act ("Act"), alleging disability from chronic obstructive pulmonary disease ("COPD"), varicose veins, depression and allergies, with an alleged onset date of October 12, 2011. The Social Security Administration ("SSA") denied Plaintiffs claims both initially and upon reconsideration. Thereafter, an Administrative Law Judge ("ALJ") denied Plaintiffs claims in a written decision and the Appeals Council denied Plaintiffs request for review, rendering the ALJ's decision as the final decision of the Commissioner.

         Plaintiff now seeks judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g), arguing that the Appeals Council erred in refusing to grant her request for review. (Mem. in Support of Pl's Mot. For Summ. J. ("Pl's Mem.") (ECF No. 13) at 1.) This matter now comes before the Court by consent of the parties pursuant to 28 U.S.C. § 636(c)(1) on the parties' cross- motions for summary judgment, rendering the matter ripe for review.[1] For the reasons that follow, the Court hereby DENIES Plaintiffs Motion for Summary Judgment (ECF No. 13), GRANTS Defendant's Motion for Summary Judgment (ECF No. 14) and AFFIRMS the final decision of the Commissioner.

         I. PROCEDURAL HISTORY

         On October 22, 2012, Plaintiff filed an application for SSI with an alleged onset date of October 12, 2011. (R. at 110, 207.) The SSA denied these claims initially on May 30, 2013, and again upon reconsideration on January 31, 2014. (R. at 99-109, 111-22.) At Plaintiffs written request, the ALJ held a hearing on June 17, 2015. (R. at 62-98.) On September 11, 2015, the ALJ issued a written opinion, denying Plaintiffs claims and concluding that Plaintiff did not qualify as disabled under the Act, because if Plaintiff stopped her substance use, she could perform her past relevant work as a housekeeper. (R. at 39-56.) On January 24, 2017, the Appeals Council denied Plaintiffs request for review, rendering the ALJ's decision as the final decision of the Commissioner subject to review by this Court. (R. at 1-4.)

         II. STANDARD OF REVIEW

         In reviewing the Commissioner's decision to deny benefits, a court "will affirm the Social Security Administration's disability determination 'when an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.'" Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015) (quoting Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012)). Substantial evidence requires more than a scintilla but less than a preponderance, and includes the kind of relevant evidence that a reasonable mind could accept as adequate to support a conclusion. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012); Craig v. Chafer, 76 F.3d 585, 589 (4th Cir. 1996). Indeed, "the substantial evidence standard 'presupposes ... a zone of choice within which the decision makers can go either way, without interference by the courts. An administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision."' Dunn v. Colvin, 607 Fed.Appx.. 264, 274 (4th Cir. 2015) (quoting Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988)). To determine whether substantial evidence exists, the court must examine the record as a whole, but may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472 (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005)). In considering the decision of the Commissioner based on the record as a whole, the court must "take into account whatever in the record fairly detracts from its weight." Breeden v. Weinberger, 493 F.2d 1002, 1007 (4th Cir. 1974) (quoting Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1951)). The Commissioner's findings as to any fact, if substantial evidence in the record supports the findings, bind the reviewing court to affirm regardless of whether the court disagrees with such findings. Hancock, 667 F.3d at 477. If substantial evidence in the record does not support the ALJ's determination or if the ALJ has made an error of law, the court must reverse the decision. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

         The Social Security Administration regulations set forth a five-step process that the agency employs to determine whether disability exists. 20 C.F.R. § 416.920(a)(4); see Mascio, 780 F.3d at 634-35 (describing the ALJ's five-step sequential evaluation). To summarize, at step one, the ALJ looks at the claimant's current work activity. § 416.920(a)(4)(i). At step two, the ALJ asks whether the claimant's medical impairments meet the regulations' severity and duration requirements. § 416.920(a)(4)(ii). Step three requires the ALJ to determine whether the medical impairments meet or equal an impairment listed in the regulations. § 416.920(a)(4)(iii). Between steps three and four, the ALJ must assess the claimant's residual functional capacity ("RFC"), accounting for the most that the claimant can do despite her physical and mental limitations. § 416.945(a). At step four, the ALJ assesses whether the claimant can perform her past work given her RFC. § 416.920(a)(4)(iv). Finally, at step five, the ALJ determines whether the claimant can perform any work existing in the national economy. § 416.920(a)(4)(v).

         When the sequential analysis leads to a disability determination based, in part, on alcohol or drug dependence, the inquiry into the claimant's disability does not end there. Cage v. Comm 'r of Soc. Sec, 692 F.3d 118, 123 (2d Cir. 2012). In 1996, the Contract with America Advancement Act amended the Act to preclude a finding of disability "if alcoholism or drug addiction is a material contributing factor to the disability finding." Delk v. Colvin, 675 Fed.Appx. 281, 283 (4th Cir. 2017) (citing 42 U.S.C. § 1382c(a)(3)(J) and Cage, 692 F.3d at 123). Under the regulations, alcohol or drug addiction qualifies as a material contributing factor "if the claimant would not meet [the SSA's] definition of disability" but for her alcohol and/or drug use. SSR 13-2p, 2013 WL 621536 at *4 (Feb. 20, 2013).

         If at the conclusion of the five-step analysis, an ALJ finds "both a disability and evidence of substance abuse, " the ALJ must then determine whether the disability would exist without the substance abuse. Delk, 675 Fed.Appx. at 283 (citing Kluesner v. Astrue, 607 F.3d 533, 537 (8th Cir. 2010)). During this analysis, the claimant bears the burden of proving her disability absent her alcohol or drug use. Delk, 675 Fed.Appx. at 283; SSR 13-2p, at *4. If the claimant would not qualify as disabled absent her substance abuse, then the claimant's substance use constitutes a material contributing factor such that it precludes a disability finding. Delk, 675 Fed.Appx. at 283-84.

         III. THE ALJ'S DECISION

         On June 17, 2015, the ALJ held a hearing during which Plaintiff (then-represented by counsel) and a vocational expert testified. (R. at 62-98.) On September 11, 2015, the ALJ issued a written opinion, finding that Plaintiff did not qualify as disabled under the Act. (R. at 39-56.)

         The ALJ followed the five-step evaluation process established by the Act in analyzing Plaintiffs disability claim. (R. at 41-56.) At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date. (R. at 41.) At step two, the ALJ found that Plaintiff had the following severe impairments: COPD; varicose veins; bipolar disorder; personality disorder; heroin dependence; alcohol dependence; and, cocaine dependence. (R. at 41-43.) At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in the regulations. (R. at 43-46.)

         In assessing Plaintiffs RFC, the ALJ found that Plaintiff could perform light work with additional limitations. (R. at 46-50.) Plaintiff could frequently lift, carry, push and pull ten pounds and occasionally twenty pounds. (R. at 46.) She could stand and walk for six hours in an eight-hour workday, as well as sit for six hours in a given workday. (R. at 46.) Plaintiff could not climb ladders, ropes or scaffolds, but she could occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl. (R. at 46.) The ALJ limited Plaintiff to occasional interaction with supervisors, co-workers and the general public. (R. at 46.) Plaintiff could perform simple and routine work-related instructions, and she could concentrate on work-related tasks for two hours before requiring a break. (R. at 46.) Plaintiff could tolerate frequent, but not constant, exposure to extreme cold. (R. at 46.) She could have no exposure to hazards, including unprotected heights or moving machinery. (R. at 46-47.) Finally, Plaintiff would likely stray off task more than fifteen percent of the time. (R. at 47.) Given this RFC, at step four, the ALJ found that Plaintiff could not perform her past relevant work. (R. at 50.) At step five, the ALJ determined that no jobs existed in significant numbers in the national economy that Plaintiff could perform given the ...


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