Amy Ledesma v. Michael J Astrue, No. 5:2008cv01135 - Document 23 (C.D. Cal. 2009)

Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that: (1) plaintiffs request for relief is denied; and (2) the Commissioners decision is affirmed, and Judgment shall be entered in favor of defendant. See order for further details. (jy)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 AMY LEDESMA, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) No. EDCV 08-1135-RC OPINION AND ORDER 17 18 Plaintiff Amy Ledesma filed a complaint on September 3, 2008, 19 seeking review of the Commissioner s decision denying her application 20 for disability benefits. 21 answered the complaint, and the parties filed a joint stipulation on 22 April 15, 2009. On February 17, 2009, the Commissioner 23 24 BACKGROUND 25 I 26 On August 25, 2006 (protective filing date), plaintiff applied 27 for disability benefits under Title II of the Social Security Act 28 ( Act ), 42 U.S.C. § 423, and the Supplemental Security Income program 1 of Title XVI of the Act, 42 U.S.C. § 1382(a), claiming an inability to 2 work since March 3, 2006, due to bipolar disorder. 3 Administrative Record ( A.R. ) 8, 90. 4 initially denied on February 20, 2007, and, following reconsideration, 5 was denied again on August 20, 2007. 6 requested an administrative hearing, which was held on March 6, 2008, 7 before Administrative Law Judge Mason D. Harrell, Jr. ( the ALJ ). 8 A.R. 16-44. 9 plaintiff is not disabled. Certified The plaintiff s application was A.R. 8. The plaintiff then On April 4, 2008, the ALJ issued a decision finding A.R. 6-15. The plaintiff appealed this 10 decision to the Appeals Council, which denied review on July 3, 2008. 11 A.R. 1-3. 12 13 II 14 The plaintiff, who was born on July 22, 1968, is currently 41 15 years old. A.R. 14, 99, 122. She has a 12th-grade education with one 16 year of business college, and previously worked as a receptionist and 17 as a waitress. A.R. 26, 91, 93, 120. 18 19 Plaintiff was treated at the Riverside County Department of 20 Mental Health ( RCDMH ) from February 1, 2006, to February 13, 2008. 21 A.R. 150-208, 233-38. 22 Bogost, M.D.,1 A.R. 150-51, 154, 178, 182, 185, 188, 196, 203, 206-07, Her primary treating physician was Bruce 23 24 25 26 27 28 1 Dr. Bogost was a treating physician, although plaintiff refers to him as a consultative examiner. Jt. Stip. at 12:1213. See, e.g., Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (physician who saw claimant five times in three years for treatment was treating physician); Ghokassian v. Shalala, 41 F.3d 1300, 1303 (9th Cir. 1994) (physician who saw claimant twice within 14 months and prescribed medication was treating physician). 2 1 who diagnosed plaintiff as having bipolar II disorder and 2 polysubstance dependence. 3 others prescribed several medications to plaintiff, including Zoloft,2 4 Depakote,3 and Seroquel.4 5 September 28, 2006, Dr. Bogost opined plaintiff: 6 suffered from delusions; had a mild impairment of her memory and 7 judgment; showed evidence of insomnia, depression and anxiety; was 8 unable to maintain a sustained level of concentration, perform 9 repetitive tasks for an extended period, or adapt to new or stressful See A.R. 150-51, 182, 196. Dr. Bogost and A.R. 150-51, 153, 178, 203, 206, 236. On was paranoid and 10 situations; could not interact appropriately with strangers, co- 11 workers or supervisors; was fearful and anxious; and needed assistance 12 in keeping appointments. 13 plaintiff could not complete a 40-hour work week without decompensat- 14 ing, and her prognosis was guarded. A.R. 151. Dr. Bogost further opined Id. 15 16 On September 4, 2006, Eugene Hu, M.D., an attending physician at 17 Riverside County Regional Medical Center, noted plaintiff appeared to 18 be using cocaine, amphetamine and heroin, and cleared plaintiff for 19 entry into a detox program. A.R. 122-23. J. Robinson, L.V.N., 20 21 22 23 24 25 26 2 Zoloft, also called Sertraline, is prescribed for major depression a persistently low mood that interferes with everyday living. The PDR Family Guide to Prescription Drugs at 612, 763 (8th ed. 2000). 3 Among other uses, Depakote . . . [is] used to control the manic episodes periods of abnormally high spirits and energy that occur in bipolar disorder (manic depression). Id. at 194. 4 27 28 Seroquel combats the symptoms of schizophrenia, a mental disorder marked by delusions, hallucinations, disrupted thinking, and loss of contact with reality. Id. at 610. 3 1 noted plaintiff was on Methadone, was shaky, and admitted using 2 heroin the day before and showed numerous scarred tract & prior 3 abscess looking sites on [her] body. A.R. 124, 126. 4 5 On February 10, 2007, psychiatrist Romualdo R. Rodriguez, M.D., 6 examined plaintiff, A.R. 127-35, and noted she was not under the 7 influence of drugs at the time. 8 plaintiff: 9 delusional; had no current suicidal, homicidal or paranoid ideation ; A.R. 130. Dr. Rodriguez found had coherent and organized though processes and was not 10 described her mood as euthymic ; was polite, serious and relaxed 11 and not tearful ; although feeling helplessness and hopelessness at 12 times, [plaintiff does] not [feel] worthless and guilty ; was alert 13 and oriented . . . [and] appears to be of at least average 14 intelligence ; could recall three items immediately and two items 15 after five minutes ; could perform serial threes [and] . . . can 16 correctly and quickly complete simple mathematic problems ; and was 17 able to follow . . . conversation well. 18 Dr. Rodriguez found plaintiff s [i]nsight into her problems is very 19 problematic, and determined plaintiff was still actively using drugs 20 illegally and not getting proper care for her mental health issues. 21 A.R. 132. 22 stress disorder, attention deficit hyperactivity disorder (ADHD) and 23 polysubstance dependence, and he determined her Global Assessment of 24 Functioning (GAF) was 60.5 A.R. 130-31. Dr. Rodriguez diagnosed plaintiff with: Id. Nevertheless, post-traumatic Dr. Rodriguez opined that, if 25 26 27 28 5 A GAF of 60 indicates [m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). American Psychiatric Association, Diagnostic and 4 1 [plaintiff] stopped all illegal drugs and [was] properly treated for 2 ADHD and/or any other mood disorders she may have, she could easily 3 recover from her problems within twelve months. 4 Rodriguez found plaintiff was: 5 and carry out simple one or two step job instructions ; (2) [a]ble to 6 do detailed and complex instructions ; (3) [s]lightly limited in her 7 ability to relate and interact with supervisors, coworkers and the 8 public ; (4) [m]oderately limited in her ability to maintain 9 concentration and attention, persistence and pace ; (5) [s]lightly 10 limited in her ability to associate with day-to-day work activity, 11 including attendance and safety ; (6) [s]lightly limited in her 12 ability to adapt to the stresses common to a normal work environment ; 13 (7) [s]lightly limited in her ability to maintain regular attendance 14 in the work place and perform work activities on a consistent basis ; 15 and (8) [s]lightly limited in her ability to perform work activities 16 without special or additional supervision. A.R. 133. Dr. (1) [a]ble to understand, remember A.R. 133-34. 17 18 On February 15, 2007, nonexamining psychiatrist Barbara A. Smith, 19 M.D., opined plaintiff suffers from an affective disorder and a 20 polysubstance dependence, and determined plaintiff s impairments were 21 not severe. 22 restriction of activities of daily living; (2) marked difficulties 23 in maintaining social functioning; (3) marked difficulties in 24 maintaining concentration, persistence or pace; and (4) three episodes 25 of decompensation, each of extended duration. 26 found plaintiff s drug abuse and alcoholism were material and without A.R. 136-46. Dr. Smith opined plaintiff has: (1) mild A.R. 144. 27 28 Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000). 5 Dr. Smith 1 those conditions, plaintiff s impairment [would] not [be] severe[,] 2 and plaintiff would have no restriction in activities of daily living, 3 no difficulties in maintaining social functioning, mild difficulties 4 in maintaining concentration, persistence or pace, and no episodes of 5 decompensation. A.R. 144, 146. 6 7 On May 3, 2007, Dr. Bogost, who had not seen plaintiff since 8 December 7, 2006, opined plaintiff: 9 her memory was intact; had mildly impaired judgment; showed evidence 10 of confusion, depression and anxiety and showed negative symptoms for 11 apathy; could maintain a sustained level of concentration, but could 12 not adapt to new or stressful situations; could not interact 13 appropriately with family, strangers, co-workers or supervisors; was 14 hostile, fearful and anxious; and needed assistance in keeping 15 appointments. 16 complete a 40-hour work week without decompensating, and that her 17 prognosis was guarded. A.R. 150. showed no signs of psychosis and Dr. Bogost again opined plaintiff could not Id. 18 19 On February 13, 2008, an unidentified physician at RCDMH 20 diagnosed plaintiff as having an unspecified mood disorder and heroin 21 and methamphetamine dependence. 22 plaintiff: 23 compulsive behaviors, as well as impaired judgment and concrete 24 thought patterns; showed no ability to maintain a sustained level of 25 concentration, sustain repetitive tasks for an extended period, or 26 adapt to new or stressful situations; showed no ability to interact 27 appropriately with family, strangers, co-workers or supervisors; 28 needed assistance with hygiene, and was unable to manage funds in her A.R. 238. He/she opined that showed evidence of insomnia, depression, anxiety and 6 1 best interest; missed her appointments and has refused to go for lab 2 work, and her prognosis was chronic. Id. 3 4 Medical expert Joseph M. Malancharuvil, Ph.D., testified at the 5 administrative hearing that plaintiff has a mixed substance abuse 6 disorder, an organic affective disorder with bipolar features 7 secondary to substance abuse, and a personality disorder, not 8 otherwise specified. 9 mental limitations would be marked if she s intoxicated, but, if not A.R. 26-36. Dr. Malancharuvil opined that her 10 abusing drugs, she would have only a mild limitation in her 11 activities of daily living, mild difficulty maintaining social 12 functioning, mild-to-moderate difficulties maintaining 13 concentration, persistence or pace, and no episodes of decompensation. 14 A.R. 28-29. 15 to simple work, up to four to five-step instructions with no excessive 16 speed requirements, and she should not be involved in safety 17 operations or operate hazardous machinery. Dr. Malancharuvil further opined plaintiff is restricted A.R. 29-31. 18 19 DISCUSSION 20 III 21 This Court, pursuant to 42 U.S.C. § 405(g), has the authority to 22 review the Commissioner s decision denying plaintiff disability 23 benefits to determine if his findings are supported by substantial 24 evidence and whether the Commissioner used the proper legal standards 25 in reaching his decision. 26 Cir. 2009); Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). 27 In determining whether the Commissioner s findings are supported by 28 substantial evidence, [this Court] must review the administrative Vasquez v. Astrue, 572 F.3d 586, 591 (9th 7 1 record as a whole, weighing both the evidence that supports and the 2 evidence that detracts from the Commissioner s conclusion. 3 v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Lingenfelter v. Astrue, 4 504 F.3d 1028, 1035 (9th Cir. 2007); Holohan v. Massanari, 246 F.3d 5 1195, 1201 (9th Cir. 2001). 6 support either affirming or reversing the decision, [this Court] may 7 not substitute [its] judgment for that of the Commissioner. 8 Comm r of Soc. Sec., 528 F.3d 1194, 1205 (9th Cir. 2008) (quoting 9 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007), cert. denied, 128 10 Reddick Where the evidence can reasonably Ryan v. S. Ct. 1068 (2008)); Vasquez, 572 F.3d at 591. 11 12 The claimant is disabled for the purpose of receiving benefits 13 under the Act if she is unable to engage in any substantial gainful 14 activity due to an impairment which has lasted, or is expected to 15 last, for a continuous period of at least twelve months. 16 §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). 17 The claimant bears the burden of establishing a prima facie case of 18 disability. 19 cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 20 1289 (9th Cir. 1996); see also Valentine v. Comm r Soc. Sec. Admin., 21 574 F.3d 685, 689 (9th Cir. 2009) ( To establish eligibility for 22 Social Security benefits, a claimant has the burden to prove he is 23 disabled. ). 42 U.S.C. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), 24 25 The Commissioner has promulgated regulations establishing a 26 five-step sequential evaluation process for the ALJ to follow in a 27 disability case. 28 the ALJ must determine whether the claimant is currently engaged in 20 C.F.R. §§ 404.1520, 416.920. 8 In the First Step, 1 substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). 2 If not, in the Second Step, the ALJ must determine whether the 3 claimant has a severe impairment or combination of impairments 4 significantly limiting her from performing basic work activities. 5 C.F.R. §§ 404.1520(c), 416.920(c). 6 must determine whether the claimant has an impairment or combination 7 of impairments that meets or equals the requirements of the Listing of 8 Impairments ( Listing ), 20 C.F.R. § 404, Subpart P, App. 1. 9 C.F.R. §§ 404.1520(d), 416.920(d). 20 If so, in the Third Step, the ALJ 20 If not, in the Fourth Step, the 10 ALJ must determine whether the claimant has sufficient residual 11 functional capacity despite the impairment or various limitations to 12 perform her past work. 13 in Step Five, the burden shifts to the Commissioner to show the 14 claimant can perform other work that exists in significant numbers in 15 the national economy. 16 Moreover, where there is evidence of a mental impairment that may 17 prevent a claimant from working, the Commissioner has supplemented the 18 five-step sequential evaluation process with additional regulations 19 addressing mental impairments.6 20 C.F.R. §§ 404.1520(f), 416.920(f). If not, 20 C.F.R. §§ 404.1520(g), 416.920(g). Maier v. Comm r of the Soc. Sec. 20 6 21 22 23 24 25 26 27 28 First, the ALJ must determine the presence or absence of certain medical findings relevant to the ability to work. 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1). Second, when the claimant establishes these medical findings, the ALJ must rate the degree of functional loss resulting from the impairment by considering four areas of function: (a) activities of daily living; (b) social functioning; (c) concentration, persistence, or pace; and (d) episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(2-4), 416.920a(c)(2-4). Third, after rating the degree of loss, the ALJ must determine whether the claimant has a severe mental impairment. 20 C.F.R. §§ 404.1520a(d), 416.920a(d). Fourth, when a mental impairment is found to be severe, the ALJ must determine if it meets or equals a Listing. 20 C.F.R. §§ 404.1520a(d)(2), 416.920a(d)(2). Finally, if a 9 1 Admin., 154 F.3d 913, 914-15 (9th Cir. 1998) (per curiam). 2 3 However, [a] finding of disabled under the five-step inquiry 4 does not automatically qualify a claimant for disability benefits. 5 Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001); Parra, 481 6 F.3d at 746. 7 be considered disabled . . . if alcoholism or drug addiction would 8 . . . be a contributing factor material to the Commissioner s 9 determination that the individual is disabled. 10 Rather, the Act provides that [a]n individual shall not 42 U.S.C. § 423(d)(2)(C). 11 12 For claimants such as plaintiff, who have substance abuse 13 dependency, the ALJ must first conduct the five-step inquiry without 14 separating out the impact of alcoholism or drug addiction. 15 finds that the claimant is not disabled under the five-step inquiry, 16 then the claimant is not entitled to benefits and there is no need to 17 proceed with the analysis under 20 C.F.R. §§ 404.1535 or 416.935. 18 Bustamante, 262 F.3d at 955 (citations omitted); see also Brueggemann 19 v. Barnhart, 348 F.3d 689, 694 (8th Cir. 2003) ( The plain text of the 20 relevant regulation requires the ALJ first to determine whether [the 21 claimant] is disabled . . . without segregating out any effects that 22 might be due to substance use disorders. . . . (citations and 23 footnote omitted)); Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th If the ALJ 24 25 26 27 28 Listing is not met, the ALJ must then perform a residual functional capacity assessment, and the ALJ s decision must incorporate the pertinent findings and conclusions regarding plaintiff s mental impairment, including a specific finding as to the degree of limitation in each of the functional areas described in [§§ 404.1520a(c)(3), 416.920a(c)(3)]. 20 C.F.R. §§ 404.1520a(d)(3), (e)(2), 416.920a(d)(3), (e)(2). 10 1 Cir. 2001) ( The implementing regulations make clear that a finding of 2 disability is a condition precedent to an application of § 3 423(d)(2)(C). 4 claimant is disabled. (citation omitted)). 5 determine whether [the claimant s] drug addiction or alcoholism is a 6 contributing factor material to the determination of disability. 7 7 C.F.R. §§ 404.1535(a), 416.935(a); see also Brueggemann, 348 F.3d at 8 694-95 ( If the gross total of a claimant s limitations, including the 9 effect of substance use disorders, suffices to show disability, then The [ALJ] must first make a determination that the Then the ALJ must 10 the ALJ must next consider which limitations would remain when the 11 effects of the substance use disorders are absent. ); Drapeau, 255 12 F.3d at 1214 ( [The ALJ] must then make a determination whether the 13 claimant would still be found disabled if he or she stopped abusing 14 20 alcohol [or drugs]. ). 15 16 Applying the sequential evaluation process, the ALJ found 17 plaintiff has not engaged in substantial gainful activity since the 18 alleged onset of disability. 19 plaintiff has the following severe combinations of impairments: 20 mixed substance addiction disorder, substance induced organic 21 affective disorder with bipolar features, generalized anxiety 22 disorder, and personality disorder, not otherwise specified ; however, 23 plaintiff does not have a severe physical impairment. (Step One). The ALJ then found (Step Two). 24 25 26 27 28 7 The key factor . . . in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether an individual would still be found disabled if [he] stopped using alcohol or drugs. Sousa v. Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998) (citation omitted); 20 C.F.R. §§ 404.1535(b)(1), 416.935(b)(1). 11 1 The ALJ then found plaintiff s impairments, including the substance 2 use disorders, meet the requirements of Listing nos. 12.02, 12.06, 3 12.08 and 12.09. 4 disabled when her substance abuse is considered, the ALJ next 5 addressed whether plaintiff s substance abuse is a contributing factor 6 material to the disability determination. 7 plaintiff stopped her substance abuse, she would continue to have a 8 severe impairment or combination of impairments (Step Two); however, 9 she would not have an impairment or combination of impairments that (Step Three). Having concluded plaintiff is The ALJ found that if 10 meets or equals a listed impairment. (Step Three). The ALJ then 11 concluded that even if plaintiff stopped her substance abuse, she 12 would be unable to perform her past relevant work. 13 Finally, the ALJ determined that if plaintiff stopped her substance 14 abuse, there are a significant number of jobs in the national economy 15 she can perform; therefore, she is not disabled. (Step Four). (Step Five). 16 17 18 IV A claimant s residual functional capacity ( RFC ) is what she can 19 still do despite her physical, mental, nonexertional, and other 20 limitations. 21 see also Valentine, 574 F.3d at 689 (The RFC is a summary of what the 22 claimant is capable of doing (for example, how much weight he can 23 lift). ). 24 substance use, she would retain the following RFC: Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); Here, the ALJ found that if plaintiff stopped the 25 26 to perform light work[8] . . . except work involving more than 27 8 28 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 12 1 simple tasks, i.e., more than four to five steps of instructions, 2 any rapid, assembly-line-type work, any significant 3 responsibility for the safety of others, or any significant 4 hypervigilance. 5 6 A.R. 12 (footnote added). However, plaintiff contends the RFC finding 7 is not supported by substantial evidence because: 8 to properly consider the opinions of treating physician Dr. Bogost and 9 consulting physician Dr. Rodriguez; (2) erroneously concluded (1) the ALJ failed 10 plaintiff is not a credible witness; and (3) failed to fully and 11 fairly develop the record. There is no merit to these contentions. 12 13 A. Physicians Opinion Evidence: 14 The medical opinions of treating physicians are entitled to 15 special weight because the treating physician is employed to cure and 16 has a greater opportunity to know and observe the patient as an 17 individual. 18 Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 19 1999). 20 for rejecting the uncontroverted opinions of a treating physician, 21 Ryan, 528 F.3d at 1198, and [e]ven if [a] treating doctor s opinion 22 is contradicted by another doctor, the ALJ may not reject this opinion 23 without providing specific and legitimate reasons supported by Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); Therefore, the ALJ must provide clear and convincing reasons 24 25 26 27 28 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. 20 C.F.R. §§ 404.1567(b), 416.967(b). 13 1 substantial evidence in the record. 2 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 3 the ALJ must provide clear and convincing reasons for rejecting the 4 uncontradicted opinion of an examining physician[,] Lester v. Chater, 5 81 F.3d 821, 830 (9th Cir. 1995); Widmark v. Barnhart, 454 F.3d 1063, 6 1066 (9th Cir. 2006), and [e]ven if contradicted by another doctor, 7 the opinion of an examining doctor can be rejected only for specific 8 and legitimate reasons that are supported by substantial evidence in 9 the record. 10 Reddick, 157 F.3d at 725; Similarly, Regennitter v. Comm r of the Soc. Sec. Admin., 166 F.3d 1294, 1298-99 (9th Cir. 1999); Ryan, 528 F.3d at 1198. 11 12 B. Dr. Bogost: 13 Dr. Bogost diagnosed plaintiff with bipolar II disorder and 14 polysubstance dependence and made various findings regarding 15 plaintiff s mental condition in two written reports dated 16 September 28, 2006, and May 3, 2007. 17 improperly rejected Dr. Bogost s opinion in concluding plaintiff would 18 not be disabled if she stopped her substance abuse. 19 mistaken. The plaintiff contends the ALJ The plaintiff is 20 21 Dr. Bogost found plaintiff could not work given her bipolar 22 disorder and polysubstance abuse. 23 this conclusion, finding plaintiff is disabled when she is abusing 24 drugs. 25 consider, or have any opinion about, what mental limitations plaintiff 26 would have if she stopped abusing drugs,9 stating: A.R. 11. A.R. 150-51. The ALJ agreed with However, as the ALJ noted, Dr. Bogost did not 27 9 28 The record indicates plaintiff was abusing drugs throughout her treatment at RCDMH. See, e.g., A.R. 158, 163, 14 1 The fact that [Dr. Bogost] . . . has indicated the 2 [plaintiff] cannot perform any work because of a combination 3 of affective, substance dependence, and personality 4 disorders is not material at this point in the sequential 5 evaluation process since it does not address the issue of 6 whether the [plaintiff] would still be disabled if she were 7 not actively abusing drugs and further inquiry would yield 8 no significant findings since the treating source has 9 indicated that the [plaintiff s] limitations are mild in 10 terms of memory and judgment when sober, that she has no 11 problems in terms of social withdrawal, and that she is 12 simply apathetic[,] which is consistent with the findings of 13 polysubstance dependence. 14 Rodriguez s] findings . . . and fully consistent with the 15 medical expert s findings at the hearing regarding the 16 severity of the [plaintiff s] mental impairment if she were 17 to stop abusing drugs. This is also consistent with [Dr. 18 19 A.R. 13. In other words, contrary to plaintiff s contention, the ALJ 20 did not ignore Dr. Bogost s opinion. 21 Bogost s opinion to the extent it addressed plaintiff s ability to 22 work while she continued to abuse drugs, see Valentine, 574 F.3d at 23 691-92 (no error when ALJ considered physician s evidence claimant 24 contends ALJ ignored), and only rejected Dr. Bogost s opinion to the 25 extent it failed to consider the pertinent issue before the ALJ 26 whether plaintiff would remain disabled if she stopped abusing drugs. 27 28 175, 181, 201. 15 Rather, the ALJ agreed with Dr. 1 A.R. 13. To address that question, the ALJ relied on the two 2 physicians who considered the issue examining physician Dr. 3 Rodriguez and medical expert Dr. Malancharuvil and these physicians 4 findings constitute substantial evidence to support the ALJ s RFC 5 assessment. 6 2001) (examining physician s medical report based on independent 7 examination of claimant constitutes substantial evidence to support 8 ALJ s disability determination); Saelee v. Chater, 94 F.3d 520, 522 9 (9th Cir. 1996) ( [T]he findings of a nontreating, nonexamining 10 physician can amount to substantial evidence, so long as other 11 evidence in the record supports those findings. ), cert. denied, 519 12 U.S. 1113 (1997). 13 plaintiff s claim. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. Thus, the ALJ did not err, and there is no merit to Valentine, 574 F.3d at 691-92. 14 15 C. Dr. Rodriguez: 16 On February 10, 2007, when Dr. Rodriguez conducted a complete 17 psychiatric examination of plaintiff, she was sober and not under the 18 influence of drugs; however, Dr. Rodriguez determined plaintiff is 19 still actively using drugs illegally. . . . 20 examination, Dr. Rodriguez determined plaintiff was: 21 understand, remember and carry out simple one or two-step 22 instructions ; able to do detailed and complex instructions ; 23 [s]lightly limited in her abilities to relate and interact with 24 supervisors, coworkers and the public, to associate with day-to-day 25 work activity, to adapt to the stresses common to a normal work 26 environment, to maintain regular attendance in the work place and 27 perform work activities on a consistent basis, and to perform work 28 activities without special or additional supervision; and 16 A.R. 130. Based on his able to 1 [m]oderately limited in her ability to maintain concentration and 2 attention, persistence and pace. 3 opined that if plaintiff stopped using all illegal drugs and [was] 4 properly treated . . . , she could easily recover from her problems 5 within twelve months. A.R. 133-34. Dr. Rodriguez also A.R. 133. 6 The plaintiff contends that the ALJ failed to consider Dr. 7 8 Rodriguez s opinion that plaintiff is moderately limited in her 9 ability to maintain concentration and attention, persistence and 10 pace[,] and, thus, failed to provide a legally sufficient reason 11 for rejecting this finding. 12 mistaken. 13 and, in fact, adopted Dr. Rodriguez s findings, specifically holding 14 that [w]ith regard to maintaining concentration, persistence or pace, 15 the [plaintiff] would have marginally moderate difficulties if the 16 substance use was stopped. 10 17 and there is no merit to plaintiff s claim. 18 691-92. 19 // 20 // Jt. Stip. at 3:6-4:11. The plaintiff is The ALJ did not reject any of Dr. Rodriguez s findings A.R. 12. Thus, the ALJ did not err, Valentine, 574 F.3d at 21 22 23 24 25 26 27 28 10 Moreover, although Dr. Rodriguez opined plaintiff is moderately limited in her ability to maintain concentration, persistence and pace, he also found plaintiff s difficulties in this regard do not prevent her from being able to perform even detailed and complex instructions. A.R. 133. The ALJ s RFC assessment, which limited plaintiff to light work involving . . . simple tasks, i.e., [no] more than four to five steps of instructions, [no] rapid, assembly-line-type work, [no] significant responsibility for the safety of others, [and no] significant hypervigilance[,] A.R. 12, appropriately synthesized the limitations Dr. Rodriguez found. 17 1 D. Plaintiff s Credibility: 2 Once a claimant has presented objective evidence she suffers from 3 an impairment that could cause pain or other nonexertional 4 limitations,11 the ALJ may not discredit the claimant s testimony 5 solely because the degree of pain alleged by the claimant is not 6 supported by objective medical evidence. 7 F.2d 341, 347 (9th Cir. 1991) (en banc); Moisa v. Barnhart, 367 F.3d 8 882, 885 (9th Cir. 2004). 9 subjective complaints are not credible, he must provide specific, Bunnell v. Sullivan, 947 Thus, if the ALJ finds the claimant s 10 cogent reasons for the disbelief. Greger v. Barnhart, 464 F.3d 968, 11 972 (9th Cir. 2006) (citations omitted); Orn v. Astrue, 495 F.3d 625, 12 635 (9th Cir. 2007). 13 establishing an objective basis for some degree of pain and related 14 symptoms, and no evidence affirmatively suggesting the claimant is 15 malingering, the ALJ s reasons for rejecting the claimant s testimony 16 must be clear and convincing. 17 Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008). Furthermore, if there is medical evidence Morgan, 169 F.3d at 599; Carmickle v. 18 19 The plaintiff contends the ALJ improperly discounted her 20 credibility. There is no merit to this claim. Indeed, as the 21 Commissioner argues, plaintiff s claim is a red herring. 22 administrative hearing, plaintiff did not specifically testify about 23 any mental limitations she experiences absent her substance abuse, but 24 instead stated only that she cannot work due to mental problems, At the 25 26 27 28 11 While most cases discuss excess pain testimony rather than excess symptom testimony, rules developed to assure proper consideration of excess pain apply equally to other medically related symptoms. Swenson v. Sullivan, 876 F.2d 683, 687-88 (9th Cir. 1989). 18 1 which led to a psychiatrist taking her out of work in 2006.12 2 19. 3 ability to remember things and [t]o focus. 13 4 however, did not reject plaintiff s testimony. 5 finding plaintiff disabled when her substance abuse is considered, the 6 ALJ found plaintiff credible concerning her alleged symptoms and 7 limitations because there is no credible evidence she has ever stopped 8 using drugs[,] A.R. 11, and this finding is supported by substantial 9 evidence in the record demonstrating plaintiff continues to abuse A.R. By mental problems, plaintiff explained that she meant her A.R. 20. The ALJ, To the contrary, in 10 drugs.14 11 fore, the ALJ did not improperly discredit plaintiff. 12 at 750-51. See, e.g., A.R. 23-24, 38, 122-23, 162, 170, 195. There- Parra, 481 F.3d 13 14 E. 15 In Social Security cases, the ALJ has a special duty to fully 16 Duty To Develop The Record: and fairly develop the record and to assure that the claimant s 17 18 12 19 20 21 22 23 24 The plaintiff did cursorily state drugs are not her main problem, and she has not been using any more, having last taken methamphetamine in September or October of 2007 and marijuana not too long ago. A.R. 23-24, 38-39. 13 The plaintiff also testified she had blackouts, she is anemic, and she has headaches, ringing in her ears, back problems, stomach problems, gallbladder problems and ulcers; however, she did not state these problems prevent her from working. A.R. 21-22, 41. 14 25 26 27 28 The ALJ also found that plaintiff s statements concerning the intensity, persistence and limiting effects of [her] symptoms are not credible to the extent they are consistent with the [RFC] assessment because most of plaintiff s symptoms are explainable by her drug abuse[,] A.R. 13, and, as discussed throughout this opinion, plaintiff s drug abuse is not a basis for finding plaintiff disabled. 19 1 interests are considered. 2 omitted); Widmark, 454 F.3d at 1068. 3 whether the claimant is represented by counsel, Celaya v. Halter, 332 4 F.3d 1177, 1183 (9th Cir. 2003); Tonapetyan, 242 F.3d at 1150, and is 5 heightened where the claimant may be mentally ill and thus unable to 6 protect her own interests. 7 only [a]mbiguous evidence, or the ALJ s own finding that the record 8 is inadequate to allow for proper evaluation of the evidence, triggers 9 the ALJ s duty to conduct an appropriate inquiry. Id. (citations 10 Smolen, 80 F.3d at 1288 (citation This duty exists regardless of Tonapetyan, 242 F.3d at 1150. However, omitted); Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). 11 12 Here, the ALJ referred plaintiff for examinations by a 13 psychiatrist, Dr. Rodriguez, and an orthopedic surgeon, William C. 14 Boeck, Jr., M.D., A.R. 209-14, and also obtained a medical expert, Dr. 15 Malancharuvil, who reviewed the medical evidence and listened to 16 plaintiff s testimony before offering his opinions. 17 plaintiff contends the ALJ failed to develop the record because he did 18 not seek further information from Dr. Bogost. 19 however, that there is any ambiguity in the evidence that would 20 trigger the ALJ s duty to seek more information from Dr. Bogost. 21 fact, the ALJ specifically found no need for further inquiry. 22 A.R. 13 (Dr. Bogost has indicated that the [plaintiff s] limitations 23 are mild in terms of memory and judgment when sober, that she has no 24 problems in terms of social withdrawal, and that she is simply 25 apathetic . . . . ). 26 Bogost s opinions, Mayes, 276 F.3d at 460, there is no merit to this A.R. 26-36. Yet, It cannot be said, In See Since the ALJ had not problem interpreting Dr. 27 28 20 1 claim.15 2 ALJ s determination of plaintiff s RFC. For all these reasons, substantial evidence supported the 3 4 5 V At Step Five, the burden shifts to the Commissioner to show the 6 claimant can perform other jobs that exist in the national economy. 7 Hoopai v. Astrue, 499 F.3d 1071, 1074-75 (9th Cir. 2007); Widmark, 454 8 F.3d at 1069. 9 burden: (1) by the testimony of a vocational expert, or (2) by There are two ways for the Commissioner to meet this 10 reference to the Medical Vocational Guidelines [ Grids ] at 20 C.F.R. 11 pt. 404, subpt. P, app. 2. 16 12 (9th Cir. 1999); Widmark, 454 F.3d at 1069. 13 identify specific jobs existing in substantial numbers in the 14 national economy that [the] claimant can perform despite her 15 identified limitations. Tackett v. Apfel, 180 F.3d 1094, 1099 The Commissioner must Meanel v. Apfel, 172 F.3d 1111, 1114 (9th 16 15 17 18 19 20 21 22 23 24 25 26 27 28 The plaintiff also claims the ALJ should have left the record open to allow her to supplement the record. Jt. Stip. at 20:11-12. Yet, plaintiff was represented at the administrative hearing by counsel who did not request the record be left open for supplementation. See A.R. 42-43. Moreover, plaintiff does not assert she attempted to reopen the hearing, 20 C.F.R. §§ 404.944, 416.1444, or supplement the record after the hearing, and there is nothing in the record itself to suggest that she could not have done so. 16 The Grids are guidelines setting forth the types and number of jobs that exist in the national economy for different kinds of claimants. Each rule defines a vocational profile and determines whether sufficient work exists in the national economy. These rules represent the [Commissioner s] determination, arrived at by taking administrative notice of relevant information, that a given number of unskilled jobs exist in the national economy that can be performed by persons with each level of residual functional capacity. Chavez v. Dep t of Health & Human Servs., 103 F.3d 849, 851 (9th Cir. 1996) (citations omitted). 21 1 Cir. 1999) (quoting Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 2 1995)). 3 4 Here, a vocational expert, Alan L. Ey, testified at the 5 administrative hearing. See A.R. 41-43. Hypothetical questions to a 6 vocational expert must consider all of the claimant s limitations, 7 Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001), and [t]he ALJ s 8 depiction of the claimant s disability must be accurate, detailed, and 9 supported by the medical record. Tackett, 180 F.3d at 1101. The 10 plaintiff contends the hypothetical question to the vocational expert 11 fails to set out all of the plaintiff s particular limitations and 12 restrictions as identified by Drs. Bogost and Rodriguez. 13 at 22:26-23:05. Jt. Stip. There is no merit to this claim. 14 15 16 The ALJ asked vocational expert Mr. Ey the following hypothetical question: 17 18 Let s suppose, Mr. [Ey], someone has a high school level 19 education, not illiterate, limited to where they can only do 20 simple tasks at work involving up to four or five-step 21 instruction but no more than that, and no requirements for 22 excessive speed in their physical activities like you d have 23 at a rapid assembly line, no responsibility for safety 24 operations, no requirements for hypervigilance, no work 25 around hazardous machinery and she d be limited to light 26 range of work. . . . 27 28 * * * Are there any unskilled jobs that could [be] performed? 22 1 A.R. 41-42. In response, the vocational expert identified the jobs of 2 // 3 housekeeper (Dictionary of Occupational Titles ( DOT )17 no. 323.687- 4 014), with 21,000 job positions regionally and 302,000 nationally, and 5 mail clerk (DOT no. 209.687-026), with 4,000 job positions regionally 6 and 79,000 nationally. A.R. 42. 7 8 9 Since this hypothetical question reflects the limitations found by Dr. Rodriguez and the ALJ s RFC determination of limited light 10 work, which this Court has found was proper, the vocational expert s 11 testimony constitutes substantial evidence to support the ALJ s Step 12 Five determination that plaintiff can perform other work in the 13 national economy and is not disabled. 14 F.3d 1169, 1175-76 (9th Cir. 2008). Stubbs-Danielson v. Astrue, 539 15 16 ORDER 17 IT IS ORDERED that: (1) plaintiff s request for relief is denied; 18 and (2) the Commissioner s decision is affirmed, and Judgment shall be 19 entered in favor of defendant. 20 21 DATE: November 23, 2009 22 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 23 24 25 26 17 27 The DOT is the Commissioner s primary source of reliable vocational information. Johnson, 60 F.3d at 1434 n.6. 28 R&R-MDO\08-1135.mdo 11/23/09 23

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