Alvila Carter v. Jo Anne B Barnhart

Case 5:05-cv-00704-MAN Document 20 Filed 03/09/07 Page 1 of 16 Page ID #:71 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CAL...

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Case 5:05-cv-00704-MAN Document 20 Filed 03/09/07 Page 1 of 16 Page ID #:71

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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

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ALVILA CARTER,

) ) Plaintiff, ) v. ) ) ) MICHAEL J. ASTRUE, ) Commissioner of the ) Social Security Administration, ) ) Defendant. ) ___________________________________)

NO. EDCV 05-00704-MAN MEMORANDUM OPINION AND ORDER

17 18

Plaintiff filed a Complaint on August 3, 2005, seeking review of

19

the denial by the Social Security Commissioner (“Commissioner”)1 of an

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award of disability insurance benefits (“DIB”) and supplemental security

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income benefits (“SSI”).

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proceed before the undersigned, pursuant to 28 U.S.C. § 636.

23

parties

filed

a

Joint

On August 18, 2005, the parties consented to

Stipulation

on

April

24,

2006,

in

The

which:

24 25 26 27 28

1

Michael J. Astrue became the Commissioner of the Social Security Administration on February 12, 2007. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Michael J. Astrue should be substituted in place of Commissioner Joanne B. Barnhart as the Defendant in this action. No further action need be taken to continue this suit by reason of the last sentence of Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

Case 5:05-cv-00704-MAN Document 20 Filed 03/09/07 Page 2 of 16 Page ID #:72

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Plaintiff seeks an order vacating the Commissioner’s decision denying

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benefits and remanding the case to the Commissioner for a new hearing;

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and Defendant requests that the Commissioner’s decision be affirmed.

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The Court has taken the parties’ Joint Stipulation under submission

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without oral argument.

6 7

SUMMARY OF ADMINISTRATIVE PROCEEDINGS

8 9

Plaintiff filed his applications for DIB and SSI on April 4, 2002.

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(Administrative Record (“A.R.”) 74-76, 334-36.)

Plaintiff claims to

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have been disabled since January 5, 1997, due to a back impairment,

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migraine headaches, problems with his left ankle, and depression. (A.R.

13

12, 89.)

14

13.)

Plaintiff has work experience as a general laborer.

(A.R.

15 16

The Commissioner denied Plaintiff’s claims for benefits initially

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and upon reconsideration.

(A.R. 5-11.)

Following Plaintiff’s request

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for an administrative hearing, there were three hearings conducted

19

before Administrative Law Judge Mason D. Harrell, Jr. (“ALJ”).

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The first of these hearings was held on September 3, 2003.

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350-72.)

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was not represented by counsel.2

(A.R.

At that hearing, testimony was given only by Plaintiff, who (A.R. 22-40.)

The ALJ continued the

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2 Because Plaintiff was not represented by counsel at the first and second ALJ hearings, the ALJ had a heightened duty to develop the record. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)(the ALJ’s duty to develop the record fully and fairly is heightened when the claimant is unrepresented and, particularly, when the claimant is mentally ill). An ALJ may “discharge” his duty in various ways, such as: “subpoenaing the claimant’s physicians, submitting questions to the

2

Case 5:05-cv-00704-MAN Document 20 Filed 03/09/07 Page 3 of 16 Page ID #:73

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case to develop the record further.3

(A.R. 371.)

2 3

After further development of the record, a second hearing was held

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on January 21, 2004. At that hearing, testimony was given by Plaintiff,

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who again was not represented by counsel, and by two medical experts,

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Dr. Samuel Landau, an internist, and Dr. William Cable, a neurologist.

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(A.R. 374-92.)

8

further.4

That hearing also was continued to develop the record

(A.R. 391-92.)

9 10

After further developing the record, the ALJ conducted a third and

11

final

hearing

on

May

27,

2004.

(A.R.

393-414.)

The

following

12

individuals appeared at that hearing:

13

now represented by counsel, William Kuntz; Dr. Craig Rath, a medical

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expert and clinical psychologist; and Sandra Fioretti, a vocational

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expert (“VE”).

Plaintiff, who was then and is

Testimony was given by the medical expert and the VE.

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On July 21, 2004, the ALJ issued a decision denying Plaintiff’s

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claims, and the Appeals Council subsequently denied the request for

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review.

(A.R. 12-17, 5-8.)

20 21 22

claimant’s physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record.” Id. at 1150; see also Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1999); Smolen, 80 F.3d at 1288.

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3

The ALJ continued the first hearing to obtain Plaintiff’s treating records from Mesa Counseling Clinic. (A.R. 370-71.) 4

26 27 28

This Court notes that the ALJ, in forming his decision, did not rely on the testimony given by Dr. Cable, because his testimony was based on an inadequately developed medical record. (A.R. 14.) Following Dr. Cable’s suggestion during his testimony at the second hearing, the ALJ continued the case to obtain additional records from Dr. Mejia, a physician at the Mesa Counseling Clinic. (A.R. 387.) 3

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SUMMARY OF ADMINISTRATIVE DECISION

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In

his

July

21,

2004

written

decision,

the

ALJ

found

that

4

Plaintiff:

has not engaged in substantial gainful activity since 2001

5

(A.R. 16); is a “younger individual,” pursuant to 20 C.F.R. § 416.963

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(id.); has an eleventh grade education (id.); and has “severe” physical

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and mental impairments, but does not have an impairment or combination

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of impairments listed in or medically equal to one listed in Appendix 1,

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Subpart P, Regulations No. 4 (A.R. 13-16).

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The ALJ found that Plaintiff had the following residual functional capacity:

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[Plaintiff has] the physical residual functional capacity for

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lifting and/or carrying 20 pounds occasionally and 10 pounds

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frequently, standing and/or walking 2 hours out of a given 8

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hour period and sitting 6 hours out of a given 8 hour period

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provided normal breaks with no work requiring the climbing of

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ladders,

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[Plaintiff] is unable to perform work activity requiring him

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to operate motorized equipment and is unable to operate foot

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pedals or controls with his left lower extremity.

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[Plaintiff] is precluded from work requiring high production

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quotas, work requiring close supervision and work involving

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between simple repetitive tasks and less than complex tasks.

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[Plaintiff] is able to tolerate normal interactions with peers

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and supervisors, typical or moderate supervision and non-

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stressful interactions with the general public.

work

at

unprotected

4

heights

or

balancing.

Mentally,

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(A.R. 13.)

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The ALJ found that Plaintiff’s subjective complaints “failed to

4

credibly

establish

functional

5

herein.”

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regarding drug and alcohol abuse was “not credible.”

7

Medical-Vocational Guidelines Rules 202.175 and 201.246 as a framework

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and relying upon the VE’s testimony, the ALJ found that Plaintiff can

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perform a significant number of jobs in the national economy, such as

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the jobs of a “bench assembler,” “small products assembler,” and

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“assembler of buttons and notions performed at the sedentary level of

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exertion.”

(A.R. 16.)

limitations

greater

than

that

found

The ALJ also found that Plaintiff’s testimony (Id.)

Using

(A.R. 15-16.)

13 14 15

Accordingly, the ALJ concluded that Plaintiff is not disabled within the meaning of the Social Security Act.

(A.R. 16.)

16 STANDARD OF REVIEW

17 18 19

This

Court

reviews

the

Commissioner’s

decision

to

determine

20

whether it is free from legal error and supported by substantial

21

evidence.

22

Commissioner’s decision must stand if it is supported by substantial

23

evidence and applies the appropriate legal standards. Saelee v. Chater,

Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).

The

24 25 26 27 28

5

Rule 202.17 directs that a person who is a “younger individual,” has a “limited or less” education, and is “unskilled” is not disabled. 20 C.F.R. Pt. 220, App. 2. 6

Rule 201.24 directs that a person who is a “younger individual,” is “illiterate or unable to communicate in English,”and is “unskilled” is not disabled. 20 C.F.R. Pt. 220, App. 2. 5

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94 F.3d 520, 521 (9th Cir. 1996).

Substantial evidence is “more than a

2

mere scintilla but less than a preponderance -- it is such relevant

3

evidence that a reasonable mind might accept as adequate to support the

4

conclusion.”

Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995).

5 6

Although this Court cannot substitute its discretion for that of

7

the Commissioner, this Court nonetheless must review the record as a

8

whole, “weighing both the evidence that supports and the evidence that

9

detracts from the [Commissioner’s] conclusion.” Desrosiers v. Sec’y. of

10

Health and Human Serv., 846 F.2d 573, 576 (9th Cir. 1988); see also

11

Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

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responsible for determining credibility, resolving conflicts in medical

13

testimony, and for resolving ambiguities.”

14

1035,

15

Commissioner’s decision if it is supported by substantial evidence and

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free from legal error, even when the record reasonably supports more

17

than one rational interpretation of the evidence.

18

Morgan v. Comm’r. of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.

19

1999); Flaten v. Secretary, 44 F.3d 1453, 1457 (9th Cir. 1995).

1039-40

(9th

Cir.

1995).

This

“The ALJ is

Andrews v. Shalala, 53 F.3d Court

must

uphold

the

Id. at 1041; see also

20 21

DISCUSSION

22 Plaintiff alleges two disputed issues.

23

the

ALJ

improperly

considered

the

First, Plaintiff contends

24

that

opinions

of

his

treating

25

physicians in assessing his mental limitations.7

26

contends that the ALJ failed to consider properly the credibility of his

Second, Plaintiff

27 7

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Plaintiff does not contest the ALJ’s findings regarding his physical impairments. (Joint Stip. at 3-4.) 6

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subjective complaints as required by Social Security Ruling (“SSR”) 96-

2

7p.8

(Joint Stipulation “Joint Stip.” at 3-4.)

3 4

A.

The ALJ Improperly Considered The Opinions Of Dr. Marissa

5

Mejia, Plaintiff’s Treating Psychiatrist, and Dr. Darlington,

6

Plaintiff’s Treating Psychologist.

7 8

Ordinarily, the opinions of a treating physician should be given

9

great weight, if not controlling weight.9 See Social Security Ruling 96-

10

2p; see also Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)

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(opinions of treating physicians are entitled to great deference). When

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the ALJ rejects the opinion of a treating physician, even if it is

13

contradicted, the ALJ may reject that opinion only by providing specific

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and legitimate reasons for doing so, supported by substantial evidence

15

in the record.

16

also Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)(ALJ erred by

17

rejecting

the

Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); see

treating

doctors’

opinions

and

relying

upon

Social

18 19 20 21 22 23 24 25 26 27 28

8 Although this issue is not reached by the Court for reasons discussed infra, to the extent Plaintiff contends that the ALJ erred by failing to apply the factors of Social Security Ruling 96-7p, such argument is unavailing. While Social Security Ruling 96-7p sets forth a number of factors for an ALJ to consider in assessing a claimant’s credibility, it does not require an ALJ to specifically discuss and analyze each of the factors set forth therein to render a valid credibility finding. Neither the language of this ruling nor the authority cited by Plaintiff (Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990)) suggests that the failure to do so is reversible error in and of itself. In any event, as the resolution of the first issue may be case dispositive, the Court focuses its discussion on this issue only. 9

The term “physician” herein includes psychologists. See 20 C.F.R. § 404.1527 (defining “medical opinions” as “statements from physicians and psychologists and other acceptable medical sources,” and prescribing the respective weight to be given the opinions of treating sources and examining sources). 7

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Security examiners’ opinions in finding that claimant’s chronic fatigue

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syndrome had not rendered her disabled).

3

not suffice for rejecting the treating physician’s opinion.

4

v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989).

Broad and vague reasons will McAllister

5 6

In a January 20, 2004 Medical Assessment Of Ability To Do Work-

7

Related Activities (Mental), Dr. Marissa Mejia, Plaintiff’s treating

8

psychiatrist, found that Plaintiff:

9

as a “seriously limited” ability) to “[f]ollow work rules,” “relate to

10

coworkers,” “deal with the public,” “use judgment [with] the public,”

11

and “interact with supervisors”; (2) has a “poor or no” ability (defined

12

as

13

independently,” “maintain attention and concentration,” “understand,

14

remember, and carry out complex job instructions [or] detailed, but not

15

complex, job instructions,” and “maintain personal appearance”; and (3)

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a “fair” ability to carry out “simple job instructions,” “behave in an

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emotionally stable manner,” “relate predictably in social situations,”

18

and “demonstrate reliability.”

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Mejia also found that Plaintiff:

20

affecting

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paranoia which would interfere with concentration/attention as well”;

22

“[is unable] to take good care of his personal appearance”; and “has

23

psychomotor retardation, poor memory, and poor concentration.”

“no

useful

his

ability”)

to

concentration”;

“deal

(1) has a “fair” ability (defined

with

work

stresses,”

“function

(A.R. 304-06; emphasis added.)

“suffer[s] from depression which is

“concomitantly

has

anxiety

and

In addressing Dr. Mejia’s above opinion, the ALJ stated:

26 27 28

The more extreme functional limitations found by Dr. Mejia [consider Plaintiff’s] substance abuse problems. 8

some

(Id.)

24 25

Dr.

She

Case 5:05-cv-00704-MAN Document 20 Filed 03/09/07 Page 9 of 16 Page ID #:79

1

indicated that [Plaintiff] had poor to no ability to function

2

in numerous domains (Exh. 12F).

3

testimony that [Plaintiff] may meet Section 12.0910 of the

4

Listing of Impairments taking into account drug and alcohol

5

abuse, without drug and alcohol abuse, no Listing was met and

6

[Plaintiff] could perform work within the mental demands

7

described by him.

However, despite Dr. Rath’s

8 9

(A.R. 15.)

10 11

Plaintiff contends that the ALJ improperly rejected Dr. Mejia’s

12

opinion

13

(“RFC”) in favor of the findings made by Dr. Rath, a non-treating and

14

non-examining medical expert and psychologist.

15

A.R. 14.)

16

he states . . . that [Dr. Mejia’s] limitations are based on . . .

17

Plaintiff’s ‘substance abuse problems.’”

18

15.) Plaintiff correctly maintains that, “Dr. Mejia specifically states

19

that Plaintiff’s symptoms and limitations are due to depression [and

20

she] does not cite any substance abuse as the cause of Plaintiff’s

21

symptoms.”

regarding

Plaintiff’s

mental

residual

functional

capacity

(Joint Stip. at 5; see

Plaintiff further argues that the “ALJ is simply wrong when

(Joint Stip. at 5; see A.R.

(Joint Stip. at 5.)

22 23

Defendant argues that the ALJ appropriately relied on the testimony

24

of medical expert Dr. Rath in rejecting Dr. Mejia’s more restrictive

25

limitations regarding Plaintiff’s ability to function in a work-related

26

environment.

Dr.

Rath,

who

testified

during

the

third

hearing,

27 10

28

Section 12.09 of the Listing of Impairments pertains to substance addiction disorders. 9

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1

indicated that “12.09 has been a questionable factor,” and found that

2

Plaintiff was “moderately” impaired in performing activities of daily

3

living, maintaining social functioning, and maintaining persistence or

4

pace.

5

23, 2003 report that she “need[ed] to stabilize [Plaintiff’s] symptoms

6

. . . before [assessing] the permanency of [Plaintiff’s condition],” as

7

indicating

8

dependency.

(A.R. 401.)

that

Dr. Rath pointed to Dr. Mejia’s comment in her July

she

was

considering

Plaintiff’s

alcohol

and

drug

(A.R. 408, citing A.R. 155, 328.)

9 10

Dr. Rath concluded that Plaintiff’s symptoms of poor concentration

11

and hygiene, as observed by Dr. Mejia, resulted from Plaintiff’s drug

12

and/or alcohol abuse.

13

four

14

intoxicated when he got into a car accident in 1977 (A.R. 117); (2)

15

tested positive for marijuana, cocaine and opiates in a July 2003 drug

16

test (A.R. 183); (3) admitted to drinking beer at times in May 2002

17

(A.R. 122); and (4) admitted to drinking “1 to 4 beers every other day”

18

in November 2002 (A.R. 160).

19

his conclusion, Dr. Rath pointed out that the symptoms Plaintiff

20

allegedly reported of visual hallucinations are “quite rare” absent

21

substance abuse or brain damage and, therefore, are “most consistent

22

with [Exhibit] 11F-10 where [Plaintiff tested positive for] cocaine and

23

opiate[s].”

24

showing positive results for cannaboids, cocaine, and opiates.)

documents

in

(A.R. 408.)

the

record

Dr. Rath based his conclusion on

showing

that

(A.R. 402, 406.)

Plaintiff:

(1)

was

As further support for

(A.R. 406; citing A.R. 182-83 –- July 16, 2003 blood test

25 26

Defendant’s argument is unavailing for several reasons.

By its

27

plain terms, Dr. Mejia’s January 20, 2004 report states that Plaintiff

28

suffered from “depression which is affecting his concentration,” but it 10

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1

makes absolutely no mention of substance abuse.

2

record shows that Dr. Mejia treated Plaintiff numerous times from

3

December 16, 2002 (A.R. 167), until January 20, 2004, her January 20,

4

2004

5

relationship with Plaintiff since late 2002.

6

Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)(treating physician’s opinion

7

is given greater weight, because he is employed to cure and has a

8

greater opportunity to know and observe the patient as an individual);

9

Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)(Commissioner is

10

required to give weight not only to the treating physician’s clinical

11

findings and interpretation of test results, but also to his subjective

12

judgments).

report

should

be

viewed

within

the

(A.R. 304.)

context

of

her

As the

treating

See, e.g., Sprague v.

13 14

Most importantly, the opinions in Dr. Mejia’s January 20, 2004

15

report are consistent with the observations noted in her records during

16

this period.

17

consistent with her July 23, 2003 medical report, which indicates that

18

Plaintiff suffers from “major depressive disorder, recurrent, severe

19

with psychotic features.”

20

contends, Dr. Mejia also indicates in that same report that, “I need to

21

stabilize [Plaintiff’s] symptoms with medications first or at least try

22

to before I can determine the permanency of [Plaintiff’s] symptoms,” Dr.

23

Mejia did not state that his symptoms result from drug and alcohol

24

abuse.

25

and that he is limited by “poor concentration and memory due to . . .

26

psychosis and depression.”

(Id.)

In particular, Dr. Mejia’s January 20, 2004 report is

(A.R. 155, 328.)11

Although, as Defendant

Instead, she concluded that Plaintiff is unable to work

(Id.)

27 28

11

This medical report erroneously appears twice in the record. 11

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1

This Court would have to make an illogical leap to affirm the ALJ’s

2

conclusion that Dr. Mejia contemplated that Plaintiff’s mental health

3

impairments stemmed from alcohol and/or drug abuse, because nowhere in

4

the record does Dr. Mejia indicate any such finding or observation.

5

Indeed, her records do not show that she ever has treated Plaintiff for

6

drug or alcohol addiction.12

7

Dr. Mejia’s opinions -– namely, that the limitations she found resulted

8

from Plaintiff’s drug and alcohol abuse problem –- is not legitimate.

9

See Lester, 81 F.3d 81 at 832; see also McAllister, 888 F.2d at 602.

Therefore, the ALJ’s reason for rejecting

10 11

Moreover, the ALJ erred in ignoring competent evidence in the

12

record regarding Plaintiff’s mental health treatment to justify his RFC

13

finding and ultimate conclusion that Plaintiff is not disabled. Gallant

14

v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984)(holding that it was

15

error for an ALJ to ignore or misstate the competent evidence in the

16

record in order to justify his conclusion).

17

contends, the ALJ’s RFC finding improperly ignores the findings of

18

Plaintiff’s

19

suffers from a “major depressive [disorder], severe [with psychotic

20

features],” as well as the significant symptoms denoted by his Global

21

Assessment of Functioning (“GAF”) score of 46.

22

(A.R. 173.)

23

suicidal ideation, severe obsessive rituals, frequent shoplifting) or

24

any serious impairment in social, occupational, or school functioning

treating

psychologist,

Dr.

As Plaintiff correctly

Darlington,

that

Plaintiff

(Joint Stip. at 6);

A GAF score of 46 indicates “serious

symptoms (e.g.,

25 12

26 27 28

According to this Court’s review of the record, Dr. Mejia’s only mention of Plaintiff’s use of alcohol and drugs is a notation, in her November 25, 2002 clinical assessment, that Plaintiff reported drinking one to four alcoholic drinks “every other day” and having a past history of marijuana use with no use in the past three months. (A.R. 160.) 12

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1

(e.g., few friends, unable to keep a job).”

Diagnostic and Statistical

2

Manual of Mental Disorders Text Revision, 34 (4th ed. 2000)(“DSM-IV-

3

TR”); see also Boyd v. Apfel, 239 F.3d 698, 702 (5th Cir. 2001)(GAF

4

rating of 50 or below indicates the presence of serious symptoms among

5

which may include the inability to work).

6 7

Although the ALJ is not obliged to give probative value to a GAF

8

score in assessing a claimant’s RFC, Dr. Darlington’s assessment of

9

Plaintiff is completely consistent with Dr. Mejia’s more restrictive Cf. Howard v. Commissioner of Soc. Sec., 276 F.3d 235, 241

10

limitations.

11

(6th Cir. 2002)(noting that, although a GAF score is not essential in

12

assessing the RFC, it “may be of considerable help to the ALJ in

13

formulating the RFC.”)

14

state that he was basing his findings regarding Plaintiff’s diagnosis

15

and prognosis on Plaintiff’s drug or alcohol abuse.

16

addition to improperly ignoring the findings of Dr. Darlington, the ALJ

17

improperly ignored Dr. Mejia’s June 23, 2003 report showing that

18

Plaintiff’s symptoms of depression had worsened, warranting an increase

19

in

20

limitations.13

Plaintiff’s

And, like Dr. Mejia, Dr. Darlington did not

medications

to

treat

his

more

(See A.R. 173.)

severe

In

functional

(A.R. 310-12.)

21 22

Nevertheless, there has been no finding by any treating physician

23

as to the impact of Plaintiff’s drug and alcohol abuse, if any, on his

24

RFC during this time period.

Under the Social Security Regulations, a

25 13

26 27 28

On June 23, 2003, Dr. Mejia increased Plaintiff’s medications, Risperdal, an anti-psychotic medication, and Trazadone, an antidepressant medication, to treat Plaintiff’s worsening symptoms of depression and psychosis. (A.R. 310-12.) Plaintiff reported hearing his recently deceased grandmother’s voice and claimed to receive messages from the television. (Id.) 13

Case 5:05-cv-00704-MAN Document 20 Filed 03/09/07 Page 14 of 16 Page ID #:84

1

claimant is not eligible to receive disability benefits if drug or

2

alcohol addiction is a “contributing factor material to a determination

3

of disability.”

4

in determining whether alcoholism or drug addiction is a contributing

5

factor material to the determination of a disability’” is “whether an

6

individual would still be found disabled if she stopped using alcohol or

7

drugs.”

8

20 C.F.R. § 404.1535(b)(1)).

20 C.F.R. §§ 404.1535, 416.935.

The “‘key factor ...

Sousa v. Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998)(citing

9 10

When such a substance abuse issue exists, the ALJ must perform a

11

two-step analysis. First, the ALJ must evaluate which of the claimant’s

12

physical and mental limitations would persist if the claimant refrained

13

from drug and alcohol use.

14

claimant’s remaining limitations would be disabling.

15

404.1535(b), 416.935(b).

16

substance abuse is a contributing factor material to the determination

17

of

18

contributing to the disability and the disability remaining if the

19

Plaintiff stopped using drugs or alcohol.

20

(reversing

21

claimant’s disability would have continued if she stopped using drugs

22

and alcohol). In addition, “[i]n materiality determinations pursuant to

23

42 U.S.C. § 423(d)(2)(C), the claimant bears the burden of proving that

24

his alcoholism or drug addiction is not a contributing factor material

25

to his disability determination.”

26

(9th Cir. 2001).

disability

without

and

Second, the ALJ must determine whether the 20 C.F.R. §§

It is not proper to conclude simply that

distinguishing

remanding

case

for

between

the

the

substance

abuse

Sousa, 143 F.3d at 1245 ALJ

to

determine

whether

Ball v. Massanari, 254 F.3d 817, 820

27 28

Plaintiff requests that the case be remanded for the ALJ to contact 14

Case 5:05-cv-00704-MAN Document 20 Filed 03/09/07 Page 15 of 16 Page ID #:85

1

Dr. Mejia for clarification of her opinion regarding whether, and to

2

what extent, the mental limitations she found result from Plaintiff’s

3

substance abuse, rather than his depression.

4

14.)

5

713 F.2d 441, 442-43 (9th Cir. 1993)(Commissioner has an affirmative

6

duty to develop the record, even if the claimant is represented by

7

counsel);

8

treating physician); Thomas v. Barnhart, 278 F.3d 947, 956-57, 959 (9th

9

Cir. 2002)(requirement in 20 C.F.R. §§ 404.1512(e), 416.912(e) that the

(See Joint Stip. at 6,

The Court finds this request to be proper.

20

C.F.R.

§§

re-contact

404.1512(e),

416.912(e)(duty

11

information

12

determination regarding disability); see also 20 C.F.R. §§ 404.1519a(b),

13

416.919a(b)(listing situations requiring a consultative examination,

14

such as a conflict, inconsistency, ambiguity or insufficiency in the

15

evidence).

16

Mejia and render a finding in accordance with the standards regarding

17

the

18

determining disability.

treating

sources

is

re-contact

Commissioner

the

sources

to

10

from

treating

See Brown v. Heckler,

is

triggered inadequate

where to

the

make

a

Thus, on remand, the ALJ should seek clarification from Dr.

consideration

of

the

impact

of

drugs

and

alcohol

abuse

in

19 20

B.

Remand Is Appropriate.

21 In view of the ALJ’s need to reassess Plaintiff’s RFC as discussed

22 23

above, this action must be remanded.

24

587,

25

physicians’ opinions, remand for further proceedings is appropriate if

26

enhancement of the record would be useful); Higbee v. Sullivan, 975 F.2d

27

558, 561-62 (9th Cir. 1991)(remanding case in order to develop the

28

record); McAllister, 888 F.2d at 603 (remand appropriate to remedy

593

(9th

Cir.

2004)(where

See Benecke v. Barnhart, 379 F.3d

ALJ

15

erred

in

rejecting

treating

Case 5:05-cv-00704-MAN Document 20 Filed 03/09/07 Page 16 of 16 Page ID #:86

1

defects in the record).

2 CONCLUSION

3 4

Accordingly, for the reasons stated above, the denial of benefits

5 6

is

7

consistent with this Memorandum Opinion and Order.

8

entered reversing the decision of the Commissioner, and remanding the

9

matter for further administrative action consistent with this Memorandum

10

REVERSED,

and

this

case

is

REMANDED

for

further

proceedings

Judgment shall be

Opinion and Order.

11 12

IT IS FURTHER ORDERED that the Clerk of the Court shall serve

13

copies of this Memorandum Opinion and Order and the Judgment on counsel

14

for Plaintiff and for Defendant.

15 16

LET JUDGMENT BE ENTERED ACCORDINGLY.

17 18

DATED: March 8, 2007

19 20 21

/s/ MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE

22 23 24 25 26 27 28 16

English