The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge
Plaintiff filed this action seeking reversal of the decision of the defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits and supplemental security ("SSI") income benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.
Plaintiff filed applications for disability insurance benefits and SSI benefits on April 3, 2002, alleging that she had been disabled since November 16, 1996 due to impairments consisting of herniated discs, constant headaches, and pain. [Administrative Record ("AR") 16, 69-70, 176]. Plaintiff's applications were denied initially and upon reconsideration. [JS 2; AR 79-87, 93-97]. Administrative hearings were conducted by an Administrative Law Judge (the "ALJ") on January 15, 2005 and on March 8, 2005.*fn1 [AR 16, 65, 834-859]. Plaintiff was not represented during the first hearing, but she had counsel during the second hearing. She testified on her own behalf during both hearings. [AR 16, 67, 836-844]. Testimony also was received from Dr. Joseph Malancharuvil, a medical expert, and from Sandra Fioretti, a vocational expert. [AR 16, 845-846, 850-858].
On July 15, 2005, the ALJ issued a written decision denying plaintiff's applications for benefits. [AR 65-78]. The Appeals Council granted plaintiff's request for review, vacated the ALJ's decision, and remanded the case for further proceedings. [AR 17, 157-160]. Additional administrative hearings were held on July 25, 2006, September 27, 2006, and January 26, 2007. [AR 812-832, 793-797, 801-809]. During the July 25, 2006 hearing, testimony was received from Dr. Malancharuvil and Stephen Berry, a vocational expert. [AR 812-832]. Plaintiff, who was represented by counsel, testified during the September 27, 2006 hearing. [AR 791-797]. Plaintiff and her attorney were present during the January 26, 2007 hearing, but the only testimony taken was that of Corinne Porter, a vocational expert. [AR 798-809].
In a written decision dated March 21, 2007 that constitutes the final decision of the Commissioner in this case, the ALJ denied plaintiff's applications for benefits. [AR 16-27]. The ALJ found that plaintiff had the following severe impairments: degenerative disc disease, polysubstance abuse, substance induced mood disorder, and a mixed personality disorder with borderline and anti-social features. [AR 20]. The ALJ determined that plaintiff's impairments, singly or in combination, met the listing criteria for disability based on organic mental disorders. [AR 25]. See 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.02C. The ALJ further found that if plaintiff stopped using drugs and alcohol, she would continue to have severe impairments consisting of degenerative disc disease, a mood disorder, and a mixed personality disorder with borderline and anti-social features. [AR 25]. The ALJ determined that if plaintiff stopped her substance abuse, she would retain the residual functional capacity ("RFC") to lift and carry 20 pounds occasionally and 10 pounds frequently. She could stand and walk for 2 hours out of an 8-hour work day, and she could sit for 6 hours out of an 8-hour work day with 15-minute breaks every two hours. She could occasionally stoop and bend. She could climb stairs but not ladders. She could not perform work at heights or perform balancing. She could perform simple, repetitive tasks consisting of 3-4 step instructions in a non-public setting. She could have occasional superficial interaction with the public. She could have normal interaction with supervisors and co-workers. She could not perform work requiring hyper-vigilance, safety operations, or fast paced work such as rapid assembly lines. She could not work with hazardous or fast-moving machinery, and she could not [do] work involving driving. She cannot work around fast moving belts, but a slow moving assembly line is permissible. [AR 25].
At step four of the sequential evaluation, the ALJ found that plaintiff's RFC precluded performance of her past relevant work. [AR 25-26]. Based on the vocational expert's testimony and Rules 202.21 and 202.14 of the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, the ALJ determined that if plaintiff stopped her substance abuse, she could perform alternative jobs that exist in significant numbers in the national economy. [AR 26-27]. The ALJ therefore concluded that plaintiff was not disabled at any time up to the date of his decision. The Appeals Council denied plaintiff's request for review. [AR 6-8].
Plaintiff was born in 1956, and she was 50 years old when the ALJ issued his decision. [AR 26]. Plaintiff has a high school education and is able to communicate in English. [JS 2; AR 26]. Plaintiff has worked as a temporary office worker, auto sales person, and bartender. [AR 26]. Plaintiff last worked in 1999. [AR 228, 795]. Plaintiff testified that her mother had been supporting her "for years and that's been a big problem." [AR 842]. Plaintiff said that after she stopped working in 2000, she was "totally" supported by her mother until February 2006, when her mother "sold the home that she owned that I was living in." [AR 795-795]. Since that time, plaintiff had been homeless, "staying at friends' places and wherever I can, basically." [AR 796]. Plaintiff also testified that she tries to go to church regularly. [AR 795]. She said that she drank "once in a while," and that she had not used "speed" since around November 2004. [AR 794, 795, 839]. Plaintiff had taken narcotic pain medication. [AR 848-849]. Plaintiff testified that she was not presently taking any psychiatric medication other than Ritalin for attention deficit disorder. [AR 839, 843-844].
Plaintiff testified that she had tried rehabilitation programs in the past. She said that was she was not attending Alcoholics Anonymous or Narcotics Anonymous meetings. She said that she read books that she got from a treatment center she had gone to before to stay focused and on track. [AR 795]. She said that she had not looked for a job and could not work because "I'm pretty depressed. I have a hard time getting out of bed. And, I have a real problem with time management. And depending on how my day starts out with pain, it takes me sometimes two hours[s] for me to get ready." [AR 842]. She said that she was easily distracted despite taking Ritalin. [AR 842, 844].
Plaintiff has a long history of alcohol and drug abuse. At the age of 12, plaintiff began drinking, and she started using drugs at the age of 18. [AR 23, 632]. Plaintiff was hospitalized in August 1996 for methamphetamine and alcohol abuse. [AR 24, 429-430]. While treating plaintiff for back pain in February 1998, Dr. S. Shah reported that plaintiff was using "alcohol and any medications she can get her hands on." [AR 24, 513]. One month later, plaintiff was hospitalized with a "probabl[e] dual diagnosis of both a mood disorder and chemical dependency" after the police brought her to the hospital for "apparently causing a disturbance" at a hotel. [AR 24, 426-428]. When taken to the hospital after a subsequent truck accident in April 1998, plaintiff tested positive for amphetamine. [AR 24, 445, 460].
Plaintiff went to Eisenhower Medical Center on July 3, 2001 seeking morphine for back pain, and the examining doctor suspected that she was drug seeking. [AR 24, 550]. When she went back to Eisenhower Medical Center in September 2001, plaintiff said that no medication was helping her back pain, so she drank to alleviate the pain. [AR 24, 547].
During her consultative psychiatric examination with Dr. Kent Jordan in February 2003, plaintiff said that she had been drinking the day before the examination. She said that she had used cocaine from the age of 18 to 26. She began a methamphetamine habit at age 36 and continued to use that drug at age 46. [AR 24, 692, 694]. Dr. Jordan reported that plaintiff acknowledged that "both alcohol and amphetamines are problems and she very much would like to stop." [AR 694]. She reported three psychiatric hospitalizations, each one a "72-hour hold for bizarre behavior," with no outpatient treatment.
Plaintiff attended the Betty Ford Center at age 28, and she also was in a drug and alcohol rehab 10 years ago. The rehab programs have been of no benefit to her and she has continued to drink. She also goes to AA daily, but continues to drink and use. The claimant cried when relating the fact that AA and her rehabs have been of no benefit and that she is continuing to drink and use.
On mental status examination, plaintiff exhibited notably erratic or rapid speech rhythm, anxiety, and overall labile affect. Her cognitive function, orientation, and memory were intact. She could not do serial sevens, but "other concentration tasks were done quickly and correctly," with "no evidence overall of significant concentration impairment." Insight, judgment, and abstract thinking were not impaired. [AR 693].
Dr. Jordan 's diagnoses were (1) alcohol abuse, ongoing; (2) amphetamine abuse, ongoing; (3) cocaine abuse, in remission; (4) polysubstance-induced mood disorder with anxiety, labile mood, and depression; and (5) amphetamine-induced psychotic-like behavior, in remission. [AR 684]. He opined that if plaintiff "could remain clean and sober for a length of time, it is anticipated that her work interactions would be appropriate and she would be able to handle stress well and be able to follow instructions." [AR 694].
Plaintiff saw Charles Strole, a marriage and family therapist, for therapy from July 2003 until February 2005. [715-718]. Mr. Strole noted that plaintiff been "in and out of" treatment for substance abuse. He listed 21 prescription medications that plaintiff had taken within the past three years. [AR 716]. He gave plaintiff nine psychiatric diagnoses. [AR 717]. He also stated that plaintiff was noncompliant with treatment. [AR 717]. He commented that plaintiff's "use of prescription medications, constant paranoia, and refusal to ever acknowledge or take responsibility for her own behavior exacerabate treatment management." [AR 717]. Mr. Strole opined that plaintiff was totally disabled due to mental disorders. He remarked that plaintiff could benefit from a "comprehensive treatment program" but was "unlikely to admit herself voluntarily even though her mother has offered to pay for in-patient treatment." [AR 718].
The medical expert, Dr. Malancharuvil, testified that plaintiff was addicted to alcohol and drugs, and that there was no medical evidence demonstrating that she had been sober for at least three to six months, the period required to "completely detoxify" and allow the brain to "readjust" in order to accurately assess her level of functioning when abstaining. [AR 817, 826, 850-853]. Dr. Malancharuvil testified that when using drugs and alcohol, plaintiff met the listing criteria for organic mental disorder with substance induced mood disorder, a mixed personality disorder with borderline and antisocial features, and a substance addiction disorder. [AR 817-819, 846, 851]. Dr. Malancharuvil added that plaintiff's personality disorder was present independent of her drug and alcohol use, but was "substantially aggravated when she's abusing drugs or alcohol." [AR 824].
Dr. Malancharuvil opined that when plaintiff was not using amphetamines or alcohol, she would not meet or equal any listing, explaining that "[t]here is no evidence that this lady is dysfunctional apart from the alcohol and the drug abuse. Another complicating factor in this is [that] she's noncompliant with treatment." [AR 820]. Dr. Malancharuvil testified that plaintiff could definitely perform "simple, repetitive tasks" of up to "three to four steps, easily," and that she "may be capable of functioning at a higher level, with moderately complex tasks." [AR 820; see AR 851]. He opined that plaintiff could not perform tasks requiring hypervigilance, safety operations, or fast-paced work, such as rapid assembly lines. [AR 852].
Plaintiff had a history of back problems. She incurred a work-related back injury in October 1988, and she had a diagnosis of herniated discs. In a workers' compensation "permanent and stationary" report dated April 1, 1996, Dr. George Watkin, an agreed medical examiner, opined that plaintiff was precluded from "heavy work." [AR 25, 607-618]. On March 24, 1998, Dr. John Thompson, a neurologist to whom plaintiff had been referred by Dr. Ronald Portnoff, her treating orthopedist, noted that plaintiff had a normal neurological examination and "minor" degenerative disc changes at the L4-5 and L5-S1 level. [AR 436]. Dr. Thompson "suggest[ed] that she wear a brace for a while and probably take Extra-Strength Tylenol for her pain." [AR 71, 436].
Dr. Watkin reexamined plaintiff on September 5, 2000. He did not change her permanent and stationary rating, but he recommended that plaintiff not return to work as a waitress. [AR 23, 604]. Plaintiff saw Dr. Michael Milligan for treatment of eczema on February 12, 2003 and reported that she showered two to three times a day. [AR 22, 749]. Plaintiff was treated by Dr. C. Edward Anderson, a pain specialist, for back pain from October 1, 2002 to March 23, 2004. [AR 22, 733-742]. Although Dr. Anderson also gave plaintiff a diagnosis of attention deficit disorder, he did not treat plaintiff for that condition, and referred plaintiff to her mental health provider when she asked him for medication for "panic problems." [AR 733]. Dr. Anderson noted that plaintiff "fe[lt] that she does not need much pain medication," and had used a "minimal amount" of the ...