Peter Amschel v. Michael J. Astrue, No. 2:2010cv07767 - Document 14 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Peter Amschel filed this action on October 18, 2010. Pursuant to 28 U.S.C.§ 636(c), the parties consented to proceed before the magistrate judge on December 6 and 15, 2010. (Dkt. Nos. 6, 7.) On August 2, 2011, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The court has taken the matter under submission without oral argument.Having reviewed the entire file, the court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. [SEE ORDER FOR DETAILS] (mp)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 PETER AMSCHEL, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 10-7767 AGR MEMORANDUM OPINION AND ORDER Peter Amschel filed this action on October 18, 2010. Pursuant to 28 U.S.C. 18 19 § 636(c), the parties consented to proceed before the magistrate judge on 20 December 6 and 15, 2010. (Dkt. Nos. 6, 7.) On August 2, 2011, the parties filed 21 a Joint Stipulation ( JS ) that addressed the disputed issues. The court has taken 22 the matter under submission without oral argument. Having reviewed the entire file, the court affirms the decision of the 23 24 Commissioner. 25 /// 26 /// 27 /// 28 /// 1 I. 2 PROCEDURAL BACKGROUND 3 On June 8, 2007, Amschel filed an application for disability insurance 4 benefits alleging a disability onset date of August 9, 2006. Administrative Record 5 ( AR ) 10. The application was denied initially and upon reconsideration. Id. 6 Amschel requested a hearing before an Administrative Law Judge ( ALJ ). Id. 7 On June 2, 2009, the ALJ conducted a hearing at which Amschel, a medical 8 expert and a vocational expert testified. AR 20-54. On August 26, 2009, the ALJ 9 issued a decision denying benefits. AR 10-19. On August 17, 2010, the Appeals 10 Council denied the request for review. AR 1-3. This action followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner s 14 decision to deny benefits. The decision will be disturbed only if it is not supported 15 by substantial evidence, or if it is based upon the application of improper legal 16 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 17 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 Substantial evidence means more than a mere scintilla but less than a 19 preponderance it is such relevant evidence that a reasonable mind might 20 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 21 determining whether substantial evidence exists to support the Commissioner s 22 decision, the court examines the administrative record as a whole, considering 23 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 24 evidence is susceptible to more than one rational interpretation, the court must 25 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 26 /// 27 /// 28 /// 2 1 III. 2 DISCUSSION 3 A. 4 A claimant is disabled, only if his physical or mental impairment or Disability 5 impairments are of such severity that he is not only unable to do his previous 6 work but cannot, considering his age, education, and work experience, engage in 7 any other kind of substantial gainful work which exists in the national economy. 8 Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 9 (2003). 10 However, a finding of disabled does not automatically qualify a claimant for 11 disability benefits. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (citing 12 Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001)). A claimant is not 13 eligible to receive disability benefits if drug or alcohol addiction is a contributing 14 factor material to the Commissioner's determination that the individual is 15 disabled. 42 U.S.C. § 423(d)(2)(C); 20 C.F.R. § 404.1535(a). The claimant 16 bears the burden of proving that drug or alcohol addiction is not a contributing 17 factor material to his or her disability. Parra, 481 F.3d at 748. If the 18 Commissioner finds that the claimant is disabled and has medical evidence of the 19 claimant's drug addiction or alcoholism, the ALJ must conduct a drug and 20 alcoholism analysis by determining which of the claimant's disabling limitations 21 would remain if the claimant stopped using drugs or alcohol. Id., 481 F.3d at 22 747; 20 C.F.R. § 404.1535(b)(2); see also Bustamante, 262 F.3d at 954; Ball v. 23 Massanari, 254 F.3d 817, 821 (9th Cir. 2001). If the remaining limitations would 24 still be disabling, then drug addiction or alcohol is not a contributing factor 25 material to his disability. Parra, 481 F.3d at 747. If the remaining limitations 26 would not be disabling, then the claimant's substance abuse is material and 27 benefits must be denied. Id. 28 /// 3 1 B. 2 Amschel met the insured status requirements through June 30, 2011. AR 3 The ALJ s Findings 10, 12. 4 The ALJ found that Amschel has the following severe impairments: an 5 organic affective disorder with major depressive symptoms; history of post- 6 traumatic stress disorder with some mild residual symptoms; a personality 7 disorder, not otherwise specified; and an active mixed substance abuse disorder. 8 AR 13. Amschel s impairments, including his substance abuse disorder, met 9 listing 12.04C2, a listing for affective disorders set forth in 20 C.F.R., Part 404, 10 Subpart P, Appendix 1. AR 14. 11 The ALJ also found that if Amschel stopped his substance use, his 12 impairments would not meet or equal any impairments in the listings. AR 16. He 13 would have the residual functional capacity to perform a full range of work at all 14 exertional levels but would be limited to performing no more than moderately 15 complex tasks. AR 16. The ALJ found that he would be able to perform his past 16 relevant work as an attorney. AR 18. The ALJ concluded that substance abuse 17 was a contributing factor material to the determination of disability. 18 C. 19 Amschel contends the ALJ failed to provide specific and legitimate reasons 20 for rejecting the opinions of consulting examiners, Dr. Andonov and Dr. Adeyemo. 21 Opinions of Consulting Examiners To reject an uncontroverted opinion of an examining physician, the 22 Commissioner must present "clear and convincing" reasons. Lester v. Chater, 81 23 F.3d 821, 830-31 (9th Cir. 1996). To may reject a controverted opinion of an 24 examining physician, he must provide "specific and legitimate reasons that are 25 supported by substantial evidence." Id. 26 /// 27 /// 28 /// 4 1 2 1. Opinions of Dr. Andonov On August 31, 2007, Dr. Andonov performed a consultative psychological 3 examination of Amschel. AR 209-18. He found that Amschel suffered from major 4 depression and dyssomnia. AR 216. He also found that Amschel had suffered 5 from opiate dependency for three years which was resolved at this time with total 6 abstinence and discontinuation of methadone maintenance in March 2007. AR 7 216. He was not aware of any other current or recent substance use. AR 209- 8 18. He opined Amschel is incapable of conducting either his [legal] practice or 9 engaging in any other gainful employment at the present time. AR 217-18. 10 The ALJ considered the opinions of Dr. Andonov. AR 14-15. The ALJ 11 found that Dr. Andonov provided his opinions under the mistaken belief that 12 Amschel s drug problem was in total abstinence since March 2007. AR 14. By 13 contrast, Amschel testified that he was currently using marijuana and 14 methamphetamines, and admitted to Dr. Adeyemo on October 11, 2007, that he 15 was currently using marijuana and intermittently using methamphetamines. AR 16 14-15, 26, 28, 220. He also noted that records from Loma Linda Veterans 17 Administration Medical Clinic ( LLVA ) showed continuous active use of 18 marijuana and methamphetamines. AR 14, 181, 194, 276, 282, 290, 296, 305, 19 307.1 The ALJ concluded that Dr. Andonov s opinions did not relate to Amschel s 20 impairments and limitations if he stopped using drugs. AR 14-15. 21 Substantial evidence supports the ALJ s findings that Amschel was 22 continuously using drugs and that Dr. Andonov opinions concerned Amschel s 23 24 25 26 27 28 1 Records from LLVA show the following: On May 16, 2008, Amschel states that he last used methamphetamines last [night] (AR 276); on March 7, 2008, he continues to abuse meth. Last used yesterday (AR 282); on October 12, 2007, he still uses amphetamine last used yesterday (AR 290); on August 24, 2007, he uses methamphetamine on occasion last use 2 days ago (AR 296); on June 21, 2007, he was using methamphetamine, and smoking one joint of THC daily (AR 305); on February 14, 2007, he admits concurrent use of methamphetamine (AR 307); on October 18, 2006, he smoked 3 pipefuls of crystal meth this past Saturday, and 2-3 joints of marijuana [every] day (AR 181); on April 17, 2006, he was using heroin, marijuana daily (AR 194). 5 1 limitations while he was using drugs. AR 14-15, 209-18, 181, 194, 276, 282, 290, 2 296, 305, 307. The ALJ properly considered Dr. Andonov s opinions and did not 3 err. 2. 4 5 Opinions of Dr. Adeyemo On October 11, 2007, Dr. Adeyemo performed a consultative psychiatric 6 evaluation of Amschel. AR 219-22. He found that Amschel suffered from mood 7 disorder, psychotic disorder, and multi-substance dependence (cannabinoid, 8 methamphetamines and cocaine) in early partial remission. He noted that there 9 had been a significant decline in his level of functioning within the last 12 10 months. AR 222. He opined Amschel was able to understand, remember and 11 carry out simple instructions but his ability to carry out complex instructions was 12 significantly impaired; would most likely have difficulties responding appropriately 13 to co-workers, supervisors and the public ; and would have difficulties with work 14 related issues such as safety and attendance. AR 222. 15 Dr. Adeyemo opined Amschel would benefit from substance abuse 16 treatment and psychiatric treatment, and had a fair prognosis if he is compliant 17 with recommended treatment given his limited psychiatric history, absence of 18 family history of mental illness, previous level of functioning as an attorney and 19 above average intelligence. AR 222. 20 The ALJ considered the opinions of Dr. Adeyemo. AR 15. Dr. Adeyemo s 21 opinions regarding Amschel s impairments and limitations while he was using 22 drugs was not inconsistent with the ALJ s finding that Amschel s impairments, 23 including drug abuse, was disabling.2 24 The ALJ s conclusions about Amschel s limitations if he stopped using 25 drugs was not inconsistent with the opinions of Dr. Adeyemo that he would 26 /// 27 28 2 The ALJ s finding that Amschel s impairments, including drug abuse, was disabling was, if anything, more limiting than Dr. Adeyemo s opinions. 6 1 benefit from substance abuse treatment and had a fair prognosis if he were 2 compliant with treatment. AR 222. The ALJ did not err. 3 D. 4 Amschel contends the ALJ improperly relied on the opinion of medical Opinions of the Medical Expert 5 expert, Dr. Malancharuvil, that Amschel had no significant impairment absent his 6 drug abuse. JS 3-6. 7 Dr. Malancharuvil testified at Amschel s administrative hearing. AR 29-37. 8 He opined that, with drug use, Amschel s impairments met the listings. AR 29-30. 9 However, without drug use, Amschel would be able to do moderately complex 10 tasks and intellectual tasks of at least moderate complexity. AR 30. 11 The ALJ s residual functional capacity findings are consistent with the 12 opinions of Dr. Malancharuvil. "The opinions of non-treating or non-examining 13 physicians may [] serve as substantial evidence when the opinions are consistent 14 with independent clinical findings or other evidence in the record." Thomas v. 15 Barnhart, 278 F.3d 948, 957 (9th Cir. 2002). Dr. Malancharuvil s opinions are 16 consistent with the reports and opinions of Dr. Andonov and Dr. Adeyemo, and 17 the medical records. His opinions constitute substantial evidence on which the 18 ALJ properly could rely. See Parra v. Astrue, 481 F.3d at 750 (finding substantial 19 evidence to support finding of non-disability where medical expert testified that 20 abstinence generally ameliorates the effects of liver cirrhosis).3 The ALJ did not 21 err. 22 /// 23 /// 24 /// 25 26 27 28 3 Amschel bore the burden of proof to establish that his drug abuse was not a contributing factor material to his disability. Parra, 481 F.3d at 748. He provided no evidence showing that his disabling limitations would remain if he stopped using drugs. Inconclusive evidence as to the issue of materiality is insufficient to satisfy the claimant's burden of proof. Id. at 749. 7 1 IV. 2 ORDER 3 4 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. 5 6 DATED: September 13, 2011 ALICIA G. ROSENBERG United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
