Rovert Alvarez v. Michael J. Astrue, No. 5:2009cv01169 - Document 17 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff Robert Alvarez (Alvarez) filed a Complaint on June 24, 2009. Pursuant to 28 U.S.C. § 636(c), the parties filed Consents to proceed before Magistrate Judge Rosenberg on July 16 and 17, 2009. The parties filed a Joint Stipulation on January 26, 2010, that addressed the disputed issues. The commissioner filed the certified administrative record. The Court has taken the Joint Stipulation 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)
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Rovert Alvarez v. Michael J. Astrue Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERT ALVAREZ, Plaintiff, 12 v. 13 14 MICHAEL A. ASTRUE, Commissioner of Social Security 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) No. EDCV 09-1169 AGR MEMORANDUM OPINION AND ORDER 17 Plaintiff Robert Alvarez ( Alvarez ) filed a Complaint on June 24, 2009. Pursuant 18 19 to 28 U.S.C. § 636(c), the parties filed Consents to proceed before Magistrate Judge 20 Rosenberg on July 16 and 17, 2009. (Dkt. Nos. 7, 9.) The parties filed a Joint 21 Stipulation ( JS ) on January 26, 2010, that addressed the disputed issues. The 22 commissioner filed the certified administrative record ( AR ). The Court has taken the 23 Joint Stipulation under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the 24 25 Commissioner. 26 /// 27 /// 28 /// Dockets.Justia.com 1 I. 2 PROCEDURAL BACKGROUND 3 In January 2007, Alvarez filed an application for supplemental security income 4 benefits and disability insurance benefits. AR 9, 165-67, 170-73. Both applications 5 alleged an onset date of May 1, 2005. AR 9. The applications were denied initially and 6 on reconsideration. AR 69-72. Alvarez requested a hearing. AR 85. On September 7 12, 2008, an Administrative Law Judge ( ALJ ) conducted a hearing at which Alvarez 8 testified. AR 18-43. On October 28, 2008, the ALJ conducted an additional hearing at 9 which Alvarez, a medical expert ( ME ) and a vocational expert testified. AR 44-68. On 10 January 15, 2009, the ALJ issued a decision denying benefits. AR 6-17. Alvarez 11 requested review. AR 5. On April 17, 2009, the Appeals Council denied the request for 12 review. AR 1-3. This lawsuit followed. 13 II. 14 STANDARD OF REVIEW 15 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the 16 Commissioner s decision to deny benefits. The decision will be disturbed only if it is not 17 supported by substantial evidence or it is based upon the application of improper legal 18 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 19 966 F.2d 1255, 1257 (9th Cir. 1992). 20 In this context, substantial evidence means more than a mere scintilla but less 21 than a preponderance it is such relevant evidence that a reasonable mind might 22 accept as adequate to support the conclusion. Vasquez v. Astrue, 572 F.3d 586, 591 23 (9th Cir. 2009); Moncada, 60 F.3d at 523; see also Ryan v. Comm r of Soc. Sec., 528 24 F.3d 1194, 1198 (9th Cir. 2008). When determining whether substantial evidence exists 25 to support the Commissioner s decision, the Court examines the administrative record 26 as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 27 1257. Where the evidence is susceptible to more than one rational interpretation, the 28 Court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523. 2 1 III. 2 EVALUATION OF DISABILITY 3 A. Disability 4 A person qualifies as disabled and is eligible for benefits, "only if his physical or 5 mental impairment or impairments are of such severity that he is not only unable to do 6 his previous work but cannot, considering his age, education, and work experience, 7 engage in any other kind of substantial gainful work which exists in the national 8 economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 9 (2003). 10 B. The ALJ s Findings 11 The ALJ found that Alvarez met the insured status requirements through 12 September 30, 2008. AR 11. Alvarez has the following medically determinable severe 13 impairments: substance induced psychosis and mood disorder, personality disorder not 14 otherwise specified, mixed substance abuse in reported remission for 12-15 months, 15 attention deficit disorder. AR 12. Alvarez s impairments meet a listing. AR 13. The ALJ found that if Alvarez stopped the substance abuse, he would continue to 16 17 have severe impairments. AR 14. Alvarez would have the residual functional capacity 18 ( RFC ) to perform a full range of work at all exertional levels but with the following 19 nonexertional limitations: He can perform work involving moderately complex tasks, in a 20 habituated setting, that is object-oriented. He can do a job that does not involve public 21 contact requiring emotionally-charted interactions, or safety operations. AR 14-15. 22 Alvarez would not be able to perform past relevant work. AR 15. However, there 23 would be a significant number of jobs in the national economy that the claimant could 24 perform, such as kitchen helper or industrial cleaner. AR 16. The ALJ found that 25 Alvarez s substance abuse disorders are contributing factors material to the 26 determination of disability. AR 17. 27 /// 28 /// 3 1 C. Treating Psychiatrist 2 An individual shall not be considered to be disabled . . . if alcoholism or drug 3 addiction would . . . be a contributing factor material to the Commissioner s 4 determination that the individual is disabled. 42 U.S.C. § 423(d)(2)(C). The purpose of 5 the statute was to discourage alcohol and drug abuse, or at least not to encourage it 6 with a permanent government subsidy. Ball v. Massanari, 254 F.3d 817, 824 (9th Cir. 7 2001). In Parra v. Astrue, 481 F.3d 742 (9th Cir. 2007), the Ninth Circuit described the 8 9 implementing regulations as requiring the ALJ to conduct a drug abuse and alcoholism 10 analysis ( DAA Analysis ) by determining which of the claimant s disabling limitations 11 would remain if the claimant stopped using drugs or alcohol. Parra, 481 F.3d at 747 12 (citing 20 C.F.R. §§ 404.1535(b)). If the remaining limitations would still be disabling, 13 then the claimant s drug addiction or alcoholism is not a contributing factor material to 14 his disability. If the remaining limitations would not be disabling, then the claimant s 15 substance abuse is material and benefits must be denied. Id. The ALJ found that Alvarez s impairments, including substance abuse disorders, 16 17 met a listing. AR 13. However, the ALJ found that if Alvarez stopped the substance 18 abuse, he would have the RFC to perform a full range of work at all exertional levels but 19 with certain nonexertional limitations. AR 14-15. Alvarez argues that the ALJ ignored Dr. Salanga s opinion, which never opined 20 21 that drugs or alcohol was the primary cause of Plaintiff s mental impairment. JS 4. Dr. Salanga practiced at the San Bernardino County Department of Behavioral 22 23 Health. E.g., AR 430. She saw Alvarez for monthly medication support services. AR 24 427. The medical records contain a referral form that notes a diagnosis of mood 25 disorder NOS (not otherwise specified); polysubstance dependence, and contains a 26 /// 27 /// 28 /// 4 1 prognosis of guarded, depends on his abstinence. 1 AR 443. Prior to arriving at that 2 facility, the ALJ noted Alvarez s medical records indicated drugs and/or alcohol abuse 3 on August 13-16, 2006, November 19, 2006, and March 22, 2007. AR 12, 364 (in 4 March 2007, patient denied substance use but toxicology screen was positive for 5 methamphetamines and marijuana; diagnosing polysubstance dependence), 280, 284, 6 286 (diagnosis in November 2006 includes alcohol, cannabis and methamphetamine 7 abuse; patient reported using pot and alcohol that day, meth yesterday, and regular use 8 of all three substances), 267-68, 274 (in August 2006, diagnosing amphetamine 9 dependence). The Ninth Circuit has held that the claimant bears the burden of proving that 10 11 drug or alcohol addiction is not a contributing factor material to his disability. Parra, 12 481 F.3d at 748. Alvarez s argument that Dr. Salanga does not mention drugs or 13 alcohol is incorrect, as discussed below, but in any event would not be sufficient. In 14 Parra, the claimant argued that inconclusive evidence was sufficient to satisfy a 15 claimant s burden. The Ninth Circuit rejected that argument, which effectively shifts the 16 burden to the Commissioner to prove materiality. 2 Id. at 749. The Ninth Circuit 17 concluded that Parra bore the burden of proving that his alcoholism was not a 18 contributing factor material to his cirrhosis-related disability. Id. at 750. 19 More significantly, the ALJ accepted the ME s testimony as credible and 20 supported by substantial evidence. AR 13. Based on his review, the medical expert, 21 Dr. Malancharuvil, indicated that if the claimant were clean and sober there would be no 22 23 24 25 26 27 28 1 In addition, the screening form indicates Alvarez reported alcohol as a substance problem. AR 439. 2 An alcoholic claimant who presents inconclusive evidence of materiality has no incentive to stop drinking, because abstinence may resolve his disabling limitations and cause his claim to be rejected or his benefits terminated. His claim would be guaranteed only as long as his substance abuse continues a scheme that effectively subsidizes substance abuse in contravention of the statute s purpose. Parra, 481 F.3d at 750. 5 1 reason he could not function within the limits of the residual functional capacity set forth 2 above. AR 15. The ME s opinion expressly relied on Dr. Salanga s medical records to 3 conclude that Alvarez s condition greatly improved. AR 60. The ME expressly stated 4 that the early notes in May 2007 indicated that Alvarez had been drinking yesterday. 5 AR 61, 439; see also AR 436 (noting alcohol on Alvarez s breach in June 2007). By 6 contrast, the later notes, particularly during the period February August 2008, indicated 7 that Alvarez was able to maintain himself without any significant symptoms. AR 61, 8 428, 448-54. 9 Alvarez does not identify any error in the ALJ s analysis or the ME s testimony on 10 which the ALJ relied. Alvarez relies solely on a mental status examination on August 2, 11 2007, in which a physician reviewed Alvarez s chart including his hospital records at 12 Riverside and concluded he s not a reliable historian. AR 431. The physician noted 13 alcohol use. Id. Alvarez s reliance on a mental status examination while he is drinking 14 is misplaced. The issue is which of the disabling limitations would remain if he stopped 15 using drugs or alcohol. See Parra, 481 F.3d at 747. Even assuming it would have 16 been better for the ALJ to expressly state the ME s reasoning rather than simply 17 incorporate the ME s opinion, any error is harmless. See Magallanes v. Bowen, 881 18 F.2d 747, 755 (9th Cir. 1989) ( As a reviewing court, we are not deprived of our faculties 19 for drawing specific and legitimate inferences from the ALJ s opinion. ). 20 21 D. Lay Witness Testimony In determining whether a claimant is disabled, an ALJ must consider lay witness 22 testimony concerning a claimant s ability to work. Stout v. Comm r, 454 F.3d 1050, 23 1053 (9th Cir. 2006). When an ALJ discounts the testimony of lay witnesses, he [or 24 she] must give reasons that are germane to each witness. Valentine v. Comm r, Soc. 25 Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (citation omitted). 26 The ALJ did not mention a Function Report Adult Third Party form completed by 27 Alvarez s wife on February 1, 2007. JS 8; AR 211-18. The Commissioner argues that 28 any error is harmless. 6 1 [W]here the ALJ s error lies in a failure to properly discuss competent lay 2 testimony favorable to the claimant, a reviewing court cannot consider the error 3 harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting 4 the testimony, could have reached a different disability determination. Stout, 454 F.3d 5 at 1056. 6 As the ALJ noted, Alvarez s medical records indicate regular drug and/or alcohol 7 use in August 13-16, 2006, November 19, 2006, and March 22, 2007. AR 12, 268 8 ( patient indicated that he generally gets this way when he abuses drugs ), 286 (admits 9 daily use of alcohol, daily use of marijuana, use of methamphetamines once a week 10 and last used two days earlier), 364. On March 22, 2007, approximately one month and 11 a half after Alvarez s wife filled out the form, Alvarez s toxicology screen was positive for 12 methamphetamines and marijuana. AR 12, 364. 13 The ALJ found that Alvarez met a listing when his substance abuse was 14 considered. AR 13. Alvarez s wife completed her form on February 1, 2007, during the 15 period of time Alvarez was abusing drugs and alcohol. Again, the issue is which of the 16 disabling limitations would remain if Alvarez stopped using drugs or alcohol. See Parra, 17 481 F.3d at 747. Even fully crediting her statements, no reasonable ALJ could have 18 reached a different disability determination. 19 E. 20 Alvarez argues that the ALJ ignored reports of side effects on August 13-16, 2006 21 22 Side Effects and on January 31, 2008. JS 12-13. The ALJ noted Alvarez s medications. AR 13. At the hearing, Alvarez testified 23 that the medication calms me down and, and takes the voices away and, and, you 24 know, the depression away. AR 26. Alvarez argues that a January 31, 2008 record 25 means that he was given medication for EPS (extrapyramidal side effects). JS 13; AR 26 427. However, Dr. Salanga subsequently noted that Alvarez experienced no side 27 effects during the period February 28, 2008 through the last record on August 29, 2008. 28 AR 448 ( reports no side effects ), 450 ( no medication side effects. No EPS or TD ), 7 1 451 (same), 452 (same), 453 (same), 454 (same). The ALJ did not err. There were 2 passing mentions of the side effects of [plaintiff's] medication in some of the medical 3 records, but there was no evidence of side effects severe enough to interfere with [his] 4 ability to work. Osenbrock v. Apfel, 240 F.3d 1157, 1164 (9th Cir. 2001); see also 5 Miller v. Heckler, 770 F.2d 845, 849 (9th Cir.1985) ( [Plaintiff] produced no clinical 6 evidence showing that narcotics use impaired his ability to work ). 7 IV. 8 CONCLUSION 9 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. 10 11 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 12 13 14 DATED: August 3, 2010 ALICIA G. ROSENBERG UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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