Ursula Gonzalez v. Jo Anne B Barnhart

Case 5:04-cv-01294-RZ Document 17 Filed 03/21/06 Page 1 of 3 Page ID #:13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIF...

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Case 5:04-cv-01294-RZ Document 17 Filed 03/21/06 Page 1 of 3 Page ID #:13

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CASE NO. ED CV 04-01294 RZ

URSULA GONZALES,

) ) Plaintiff, ) ) ) vs. ) JO ANNE B. BARNHART, Commissioner ) ) of Social Security Administration, ) ) Defendant. )

MEMORANDUM OPINION AND ORDER

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This matter is before the Court for review of the decision by the

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Commissioner of Social Security denying Plaintiff’s application for disability benefits.

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Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by

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the undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the Court

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to enter judgment upon the pleadings and transcript of the record before the Commissioner.

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The plaintiff and the defendant have filed their pleadings, the defendant has filed the

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certified transcript of record, and each party has filed a supporting memorandum. After

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reviewing the matter, the Court concludes that the matter must be remanded.

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I.

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Plaintiff’s second of two arguments is that, in reaching the following finding,

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the Administrative Law Judge failed to consider the side effects of Plaintiff’s medications:

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“There are no indications that the claimant would miss work more than three times a month

Case 5:04-cv-01294-RZ Document 17 Filed 03/21/06 Page 2 of 3 Page ID #:14

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or that she could not work an 8-hour day [and] 40-hour workweek.” [AR 320] Medical

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expert Craig Rath, M.D. was asked at the hearing, “given the medication regime she’s

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taking right now, in your opinion would it be difficult for her to attend work on a regular

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basis?” Dr. Rath responded, “Yes, because of a great deal of sedation.” [AR 644]

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Immediately thereafter in the hearing, Dr. Rath testified on redirect examination that this

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“difficulty” stemmed from Plaintiff’s drug addiction:

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ALJ: Let me clarify, doctor. So basically you’re saying

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because of the addiction to the drugs that she could

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not perform a full forty hour work week or would

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miss [work] more than three times [per] month.

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...

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ME: Correct.

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ALJ: Okay. But without the addiction to drugs, she

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would be capable of performing a 40-hour work

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week?

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ME: So it appears when one looks at the consultative exams, yes.

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[AR 644-45] Plaintiff’s counsel declined further cross-examination. [AR 645]

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A claimant cannot be considered disabled if drug addiction is a “contributing

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factor material to the [disability finding].” 42 U.S.C. § 423(d)(2)(C). Under the

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regulations, see 20 C.F.R. § 416.935, the Commissioner must determine whether she would

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still find the claimant disabled if the claimant stopped using drugs or alcohol. In

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Bustamante v. Massanari, 262 F.3d 949 (9th Cir. 2001), the Court of Appeals held that the

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Commissioner must determine first if the claimant is disabled and then, if he is disabled,

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whether the drug or alcohol addiction was a material factor contributing to the disability.

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The Administrative Law Judge here appears either (a) to have reversed the Bustamante -2-

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process, i.e., presumed (without so stating) that Plaintiff was disabled but concluded that

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her drug abuse materially contributed to the disability, thus rendering her not disabled in

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the final analysis; or (b) to have made a finding that stands diametrically opposed to the

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medical expert’s testimony quoted above, namely that Plaintiff was never under a disability

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at all [AR 322 (finding no. 12)], even considering the side effects of her strong

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medications, without an explanation for her implicit rejection of that testimony. In either

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instance, the Court must remand for further consideration. (The Court intimates no view

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as to whether Plaintiff ultimately should be viewed as disabled, either with or without

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taking her drug use into consideration.) II.

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Because the Court has decided to remand the matter based on Plaintiff’s

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second argument, it need not and does not address Plaintiff’s other argument asserting a

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discrepancy between the vocational expert’s testimony and the Administrative Law Judge’s

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findings as they relate to whether Plaintiff’s drug abuse was presumptively disabling under

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Listing 12.09 in 20 C.F.R. Part 404, Subpart P, appendix 1. On remand, however, the

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Administrative Law Judge may wish to take that argument into consideration. III.

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For the foregoing reasons, the decision of the Commissioner is reversed and remanded for further proceedings consistent with this Memorandum Opinion. IT IS SO ORDERED.

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DATED: March 21, 2006

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/s/ Ralph Zarefsky RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE

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English