Kevin Roberts v. Michael J Astrue, No. 5:2008cv01590 - Document 17 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. (Please see Order for Details). (rp)
Download PDF
<![CDATA[
1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 KEVIN ROBERTS, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 08-01590-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) properly 1 considered 2 Plaintiff s mental impairments and GAF of 47; 3 2. Whether the the treating ALJ physician s properly considered 4 examining 5 3. Whether the ALJ properly opinion the regarding consultative mental limitations and GAF of 50; 6 psychiatrist s opinion regarding considered the Plaintiff s type, dosage, 7 effectiveness and side effects of Plaintiff s medication; 8 and 9 4. 10 Whether the ALJ posed a complete hypothetical question to the vocational expert. 11 12 This Memorandum Opinion will constitute the Court s findings of 13 fact and conclusions of law. After reviewing the matter, the Court 14 concludes that the decision of the Commissioner must be affirmed. 15 16 I 17 THE ALJ DID NOT COMMIT ERROR 18 IN EVALUATING PLAINTIFF S MENTAL IMPAIRMENTS 19 In his first issue, Plaintiff asserts that the ALJ improperly 20 depreciated the mental health disability opinion offered by his 21 treating 22 Assessment of Functioning ( GAF ) of 47. 23 At psychiatrist, Step Two, the Dr. ALJ Chasuthipian, found that along among with a Global Plaintiff s severe 24 impairments are polysubstance abuse disorder, psychotic disorder, NOS, 25 and anti-social personality disorder. (AR 12.) 26 found that Plaintiff s impairments, including the substance abuse 27 28 2 At Step Three, it was 1 disorders, meet various Listings, including §§12.03, 12.08 and 12.09.1 2 (AR 12-13.) 3 substance abuse, his remaining limitations would not meet any of the 4 Listings. 5 substance abuse, he would have mild restrictions in activities of 6 daily living ( ADL ); mild to moderate difficulties with social 7 functioning; mild difficulties with concentration, persistence or 8 pace; and no episodes of decompensation. (AR 13.) The ALJ found, however, that if Plaintiff stopped his It was further found that if Plaintiff stopped his 9 The ALJ further found that if Plaintiff stopped his substance 10 use, he would have the residual functional capacity ( RFC ) to perform 11 a full range of work at all exertional levels with the following non- 12 exertional limitations: simple, four to five step instructions in an 13 object oriented setting involving no safety operation and no operation 14 of hazardous machinery. (AR 14.) 15 The ALJ s review of the records indicated that Plaintiff was 16 incarcerated in 2004 on a charge of drug possession, with a diagnosis 17 of schizophrenia, paranoid, chronic and that his symptoms, primarily 18 auditory hallucinations, were controlled with medication. (AR 14.) 19 After his parole in early 2005, Plaintiff s GAF was 75, and then 60, 20 although in November 2005, the ALJ noted that Plaintiff reported use 21 of amphetamines and marijuana and also an old prescription rather than 22 his prescribed medication. 23 increase in auditory hallucinations and paranoid ideation. (AR 15, 24 citing AR 323.) 25 the San Bernardino County Department of Behavioral Health, he admitted 26 to drug abuse as recently as October 2007 with increased auditory This drug use was paralleled with an It was further noted that when Plaintiff was seen at 27 28 1 There is no Listing for 12.09. 3 1 hallucinations and paranoid delusions. He reported decreased auditory 2 and visual hallucinations and paranoid ideation through February of 3 2008, and then denied any paranoid ideation in March 2008, indicating 4 minimal problems with hallucinations. (AR 15, citing AR 341-343.) 5 Summarizing this medical evidence, the ALJ found the following: 6 In terms of [Plaintiff s] alleged hallucinations and 7 delusions, there is no reason to doubt that [Plaintiff] has 8 problems with them when he abuses drugs and alcohol. 9 medical evidence of record however shows a pattern of 10 remission and 11 substance abuse 12 treatment. 13 recurrence and related compliance to with abstinence The the from prescribed (AR 15.) 14 15 The ALJ disagreed with a consultative psychiatric examiner s 16 finding that Plaintiff s substance abuse is secondary to an underlying 17 psychotic disorder, for the stated reason that Plaintiff has had good 18 control of his symptoms when compliant with prescribed treatment with 19 no indication he needs at that point to self-medicate with alcohol 20 and illicit drugs... (AR 15.) 21 findings of the testifying ME that the record as a whole only 22 establishes a psychotic disorder, not otherwise specified, secondary 23 to the [Plaintiff s] substance abuse. (Id.) 24 not disagree with the findings of the treating psychiatrist that 25 Plaintiff has been permanently and totally disabled since December 26 2007, noting that, This is not inconsistent with the findings herein 27 above regarding the severity of the [Plaintiff s] impairments if his 28 substance abuse is considered in combination with his other mental The ALJ gave greater weight to the 4 Moreover, the ALJ did 1 impairments. (Id.) 2 Thus, the opinion of Plaintiff s treating psychiatrist as to 3 disability was not a matter of disagreement for the ALJ; rather, the 4 treating psychiatrist failed to account for the effect of substance 5 abuse on the underlying mental health problems, although the treating 6 psychiatrist s notes reflect that Plaintiff used methamphetamine in 7 October 2007, and diagnosed a dependence on amphetamine and marijuana. 8 (AR 350, 354.) 9 Where drug addiction or alcoholism is a contributing factor 10 material to the determination of disability, payment of benefits is 11 prohibited. 12 key factor in making the determination whether drug addiction or 13 alcoholism is a contributing factor material to the determination of 14 disability is whether the Commissioner would still find the plaintiff 15 disabled 16 §§404.1535(b), 17 plaintiff s 18 addiction, would not be disabling, the Commissioner will find that 19 drug addiction or alcoholism is a contributing factor material to the 20 determination of disability and deny benefits. 21 (b)(2)(i), 22 1240, 1245 (9th Cir. 42 U.S.C. §423(d)(2)(C); 42 U.S.C. §1382c(a)(3)(J). if he stopped using 416.935(b). remaining If drugs the limitations, or alcohol. Commissioner absent the 20 finds drug or The C.F.R. that the alcohol 20 C.F.R. §§404.1535 416.935 (b)(2)(i); see also Sousa v. Callahan, 143 F. 3d 1998). 23 Plaintiff fails to demonstrate why the ALJ was incorrect in 24 determining that Plaintiff s substance abuse has a primary impact upon 25 the existence of a disabling mental impairment. 26 the ALJ disregarding the opinion of the treating physician; rather, 27 the fact is that Dr. Chasuthipian failed to account for the effect of 28 Plaintiff s substance abuse on his mental impairment, simply finding 5 It is not a matter of 1 that the mental impairment itself was disabling. Under Social 2 Security law, however, it is the Commissioner s responsibility to 3 determine whether, absent the drug or alcohol addiction, the mental 4 impairment would be disabling. 5 error with regard to Issue One. For that reason, the Court finds no 6 With regard to Plaintiff s argument regarding the ALJ s failure 7 to account for Plaintiff s GAF score, the GAF scale is intended to 8 reflect a person s overall level of functioning at or about the time 9 of the examination, not for a period of at least 12 consecutive 10 months, which is required for a finding of impairment or disability. 11 (See 20 C.F.R. §§416.905, 416.920(c)(2006).) 12 GAF scores are intended to be used for clinical diagnosis and 13 treatment, and do not directly correlate to the severity assessment 14 set 15 Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 16 65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000), and American Psychiatric 17 Ass n, Diagnostic and Statistical Manual of Mental Disorders, Text 18 Revision 33 (4th Ed. 2000). 19 20 forth in Social Security regulations. (See Revised Medical For the foregoing reasons, there is no error with regard to the issue of Plaintiff s GAF score. 21 22 II 23 THE ALJ PROPERLY CONSIDERED THE CONSULTATIVE EXAMINING 24 PSYCHIATRIST S OPINION 25 In Plaintiff s second issue, he asserts that the ALJ did not 26 correctly evaluate the psychiatric consultative evaluation ( CE ) 27 opinion of Dr. Kikani. 28 6 Dr. Kikani examined Plaintiff on January 17, 2008.2 1 Dr. Kikani 2 diagnosed Plaintiff as suffering from schizophrenia, paranoid type, 3 and indicated he has been psychiatrically ill since about 1996. (AR 4 338.) Dr. Kikani assessed a GAF score of 50. 5 Plaintiff as having a history of polysubstance abuse secondary to the 6 underlying psychotic disorder. 7 rejected in whole by the ALJ, who found that it was not supported by 8 evidence of record since the [Plaintiff] has had good control of his 9 symptoms when compliant with prescribed treatment ... (AR 15.) Further, he diagnosed (AR 338.) This conclusion was 10 Finally, Plaintiff asserts that the ALJ failed to take note of 11 the fact that Plaintiff suffers from serious side effects, such as 12 day-time sedation, from the prescribed medications. (JS at 10, citing 13 AR 321, 323, 324.) 14 The Court has already discussed the lack of relevance of GAF 15 scores in the disability analysis, in its denial of relief as to 16 Plaintiff s first issue, and that discussion need not be repeated. 17 With regard to side effects of psychotropic medications, while 18 Plaintiff cites several instances where he reported day-time sedation 19 from 20 concurrent mental status examinations indicated no abnormalities. For 21 example, Plaintiff cites the report of December 7, 2005, for the point 22 that he suffers from day-time sedation. 23 mental status examination indicated alertness, full orientation, 24 clear, goal-directed thinking, clear, fluent, spontaneous and not 25 pressured speech, full and appropriate affect, good cooperation, his psychotropic medication, he fails to recognize that Yet, on that same date, his 26 27 28 2 The reference is not made clear in the report, although Dr. Kikani indicates that he obtained information both from Plaintiff and from DPSS records. 7 1 intact cognition and memory, good insight, fair judgment, and a denial 2 of delusions. (Id.) 3 Plaintiff for this point. (See AR at 323-324.) 4 occasions, Plaintiff denied the existence of any side effects from 5 medication. These reports were documented in June 2005, at which time 6 Plaintiff wanted to actually increase his Seroquel dosage (AR 326); 7 November 2, 2005 (AR 323); December 5, 2005 (AR 320-321). Further, on 8 April 1, 2006, Plaintiff alleged hunger as a side effect of his 9 psychotropic medications. (AR 316.) The same is true of the other reports cited by Moreover, on many Thus, the medical reports are at 10 best inconclusive, and as such, the ALJ appropriately performed his 11 function to resolve conflicting evidence. See Morgan v. Commissioner, 12 169 F.3d 595, 601 (9th Cir. 1999). 13 Finally, with regard to the asserted secondary nature of the 14 polysubstance abuse to the psychotic disorder, the ALJ appropriately 15 resolved that question by discounting the CE s opinion, much as he had 16 discounted the treating psychiatrist s opinion. (See 17 infra, Issue One.) discussion, 18 Plaintiff again raises the medication side effects issue in his 19 third issue, which the Court has already resolved in connection with 20 his second issue. 21 regard to Plaintiff s third issue. 22 Finally, Thus, no further discussion is necessary with Plaintiff s 25 question was insufficient because it failed to set forth Plaintiff s 26 mental 27 psychotropic medications (Issue Three). (Issues One contends and Two), the assertedly ( VE ). Plaintiff to the 24 limitations posed concerns incomplete Specifically, question issue 23 28 hypothetical fourth that and vocational the side expert hypothetical effects of A hypothetical question posed to a VE must only contain those 8 1 medical assumptions which are supported by substantial evidence in the 2 record reflecting Plaintiff s limitations. 3 F.3d 1157, 1163-64 (9th Cir. 2001). Since this Court has sustained the 4 ALJ s 5 psychiatrist, the CE, and side effects of medication, it follows that 6 no error will be found with regard to omission of these matters in the 7 hypothetical questions posed to the VE. 8 analysis of the issues Osenbrock v. Apfel, 240 regarding The decision of the ALJ will be affirmed. 9 treating The Complaint will be dismissed with prejudice. 10 Plaintiff s IT IS SO ORDERED. 11 12 13 DATED: August 12, 2009 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
]]>
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.
