The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
Plaintiff Kevin Boyer appeals from a denial of his application for Social Security Disability Benefits and Supplemental Security Income (collectively Disability Benefits). 42 U.S.C. §§ 405(g) and 1383(c)(3). Both parties have filed cross motions for summary judgment. For the reasons set forth below, the Commissioner's Motion for Summary Affirmance (d/e 15) is ALLOWED, and Plaintiff Kevin Boyer's Motion for Summary Judgment (d/e 12) is DENIED.
Boyer was born on April 18, 1964. He achieved a ninth grade education. He previously worked as a fork lift operator, garbage collector, fabrication operator, and mental health technician. Boyer initially alleged that he became disabled on September 1, 2004. He subsequently amended his application to allege that he became disabled on February 16, 2005. Boyer suffered from asthma, COPD, degenerative joint and degenerative disc disease, and depression. He also smoked and had a history of drug use, including marijuana, cocaine, and methamphetamine.
In November 2004, Boyer sought mental health counseling. At that time, he reported smoking marijuana daily and drinking once every three to four months. Answer to Complaint (d/e 10), attached Certified Record before the Social Security Administration (R.), at 444. Boyer reported previously using cocaine and methamphetamine, and going into inpatient treatment in 1994. Boyer complained that his depression made him avoid people. He reported that he lost his job because of his depression. R. 446. Boyer's counselor, Valerie Scarbrough, M.S.W., diagnosed major depression with alcohol dependance. She assigned a Global Assessment of Functioning (GAF) score of 50. R. 448.
On January 21, 2005, Boyer started seeing psychiatrist Raymond Bland, M.D. Boyer reported smoking marijuana and drinking six to seven beers during the previous week. He reported a history of cocaine use and smoking one pack of cigarettes a day. Dr. Bland noted good eye contact, and normal speech. Dr. Bland found that Boyer had major depression with mild lability, logical and goal directed thoughts, no abnormal thought content, full orientation and intact cognition, but significant stressors because Boyer was unemployed and did not have a place to live. Dr. Bland diagnosed major depression with alcohol dependance and a history of cocaine dependance. Dr. Bland assigned a GAF score of 45 to 50. Dr. Bland prescribed Zoloft and told Boyer to abstain from other substances. Dr. Bland noted that he did not believe that Boyer would abstain. R. 437-38.
On March 30, 2005, Boyer had acute asthmatic bronchitis. R. 416-17. On April 1, 2005, Boyer saw Dr. Bland again. Boyer reported that he stopped taking the Zoloft because the medicine upset his stomach. Boyer complained of a recent respiratory infection. He reported that he had been on antibiotics. He looked fatigued and had poor concentration. Dr. Bland assigned a GAF of 45. Dr. Bland prescribed Cymbalta. R. 436.
On June 28, 2005, state agency physician Frank Jimenez, M.D., reviewed Boyer's medical records. Dr. Jimenez opined that Boyer's asthma attacked were infrequent and were not severe. Dr. Jimenez opined that Boyer had no physical limitations other than a need to avoid concentrated exposure to fumes, dust, and gases. R. 467-73.
Also in June 2005, state agency evaluator Lionel Hudspeth reviewed Boyer's medical records and opined that Boyer met the Listing 12.09 for substance addiction. The Listings are a set of carefully defined conditions that cause a person to be disabled without regard to age, education, or work experience. 20 C.F.R. Part 404 Subpart P, Appendix 1. Hudspeth found that Boyer had marked limitations on: (1) daily living, (2) maintaining social functioning, and (3) maintaining concentration, persistence, or pace. He also found that Boyer had one or two episodes of decompensation. R. 485. Hudspeth opined, "Claimant has severe limitations of his daily activities and mental status but the condition is exacerbated by both alcohol and cocaine abuse." R. 487. The state agency denied his request for disability benefits because he could perform routine tasks if not for his drug and alcohol use. R. 745.
On July 12, 2005, Boyer saw a counselor and reported that his depressive symptoms were not improving. Boyer reported that he was out of his prescription medicine Lexipro. On July 20, 2005, Boyer went to the emergency room with pneumonia and rib cage strain from coughing. Boyer reported smoking a pack of cigarettes a week. On August 5, 2005, Dr. Bland saw Boyer. Dr. Bland noted fatigue and a restricted affect. Dr. Bland continued Boyer's medication. Dr. Bland diagnosed major depression, early remission of alcohol dependance, and a history of cocaine dependence. Dr. Bland assigned a GAF of 45. R. 464.
On August 24, 2005, state agency physician Reynaldo Gotanco, M.D., reviewed the medical records and affirmed the opinion of Dr. Jimenez. R. 474. State agency evaluator Erika Altman reviewed the medical records and affirmed the opinions of Lionel Hudspeth. On reconsideration, the state agency again denied Boyer's application because he could perform routine activities if not for his drug and alcohol use. R. 740.
On September 15, 2005, Boyer saw David C. Crabtree, M.D., for his asthma. Boyer previously saw Dr. Crabtree in 1992 and 1998. Boyer reported that he was not smoking or drinking alcohol. Dr. Crabtree stated that spirometry showed severe airway restrictions with minimal post bronchodilator response. Dr. Crabtree prescribed medication, including a nebulizer. R. 522. Pulmonary testing on October 25, 2005, showed mild obstruction before medication and normal spirometry after medication. R. 552-53. On January 26, 2006, Dr. Crabtree found that Boyer's breathing was still bad and that Boyer was wheezing all the time. Dr. Crabtree stated that Boyer was having quite a tough problem with asthma, but noted that he had good control with nebulizers. R. 565.
On April 7, 2006, Dr. Crabtree found Boyer's "breathing very bad -- slowly worse. Chest sounds tight as a drum." R. 564. On April 11, 2006, Dr. Crabtree admitted Boyer to the hospital with severe asthma symptoms and chest pain. Boyer denied smoking to Dr. Crabtree. Later the same day, Boyer stated that he was smoking four to five cigarettes a day and using a Nicoderm patch. He stated that he was down from one to two packs per day. R. 515. Pulmonary function testing showed moderately severe obstructive pulmonary disease. R. 512. Boyer's breathing improved while in the hospital. He was released on April 14, 2006. Dr. Crabtree stated that his breathing improved because he was not smoking. R. 510. A cardiovascular consultant, Vincent Zuck, M.D., told Boyer to stop smoking.
On May 2, 2006, Dr. Zuck performed a diagnostic heart catheterization. He found diffuse coronary artery disease that was not severe. Dr. Zuck opined that Boyer's chest pains were non-cardiac. He recommended that Boyer stop smoking. R. 504-06.
On May 15, 2006, Boyer saw Romaisa Firdose, M.D., due to back pain. Boyer had a history of lower back pain and epidural injections. Boyer denied any recreational drug use and reported no drinking for at least three years. Boyer went to see Dr. Firdose because he was out of Vicodin. Dr. Firdose prescribed Vicodin and Tramadol. R. 543-44.
On May 30, 2006, Dr. Crabtree set forth some opinions regarding Boyer's condition. Dr. Crabtree opined on one form that Boyer's pulmonary disease markedly restricted his ordinary physical activity, but he also opined that Boyer was comfortable at rest. R. 494-95. Dr. Crabtree opined that Boyer was limited to less than sedentary sustained work involving no lifting, sitting six hours per day, standing up to two hours per day and walking up to two hours per day. Dr. Crabtree opined that Boyer had mild restrictions on being near moving machinery and driving, moderate restrictions on being around unprotected heights and total restrictions on being exposed to marked changes in temperature and humidity and dust, fumes, and gases. R. 497.
On August 22, 2006, Boyer saw Dr. Zuck again. Boyer told Dr. Zuck that he was still smoking five cigarettes per day. Dr. Zuck found that Boyer's hypertension was under excellent control and that his coronary artery disease was well controlled. He stated that ...