Timothy Greenwood v. Michael J. Astrue, No. 5:2009cv01781 - Document 19 (C.D. Cal. 2010)
Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that: (1) plaintiffs request for relief is granted and defendants request for relief is denied; and (2) the Commissioners decision is reversed, and the action is remanded to the Social Security Administration for further proceedings consistent with this Opinion and Order, pursuant to sentence four of 42 U.S.C. § 405(g), and Judgment shall be entered accordingly. See order for further details. (jy)
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Timothy Greenwood v. Michael J. Astrue Doc. 19 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 TIMOTHY GREENWOOD, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) No. EDCV 09-1781-RC OPINION AND ORDER Plaintiff Timothy Greenwood filed a complaint on September 28, 17 2009, seeking review of the Commissioner’s decision denying his 18 application for disability benefits. 19 Commissioner answered the complaint, and the parties filed a joint 20 stipulation on March 31, 2010. On February 16, 2010, the 21 22 23 BACKGROUND On April 24, 2007, plaintiff, who was born on December 25, 1960, 24 applied for disability benefits under the Supplemental Security Income 25 program (“SSI”) of Title XVI of the Social Security Act (“Act”), 26 claiming an inability to work since July 4, 2005, due to bipolar and 27 psychotic disorders. 28 The plaintiff’s application was initially denied on August 21, 2007, Certified Administrative Record (“A.R.”) 124-26. Dockets.Justia.com 1 and was denied again on December 21, 2007, following reconsideration. 2 A.R. 63-67, 70-75. 3 hearing, which was held before Administrative Law Judge Charles E. 4 Stevenson (“the ALJ”) on May 21, 2009. 5 2009, the ALJ issued a decision finding plaintiff is not disabled. 6 A.R. 5-20. 7 Council, which denied review on September 1, 2009. The plaintiff then requested an administrative A.R. 38-58, 76. On July 14, The plaintiff appealed this decision to the Appeals A.R. 1-4. 8 9 DISCUSSION I 10 11 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 12 review the Commissioner’s decision denying plaintiff disability 13 benefits to determine if his findings are supported by substantial 14 evidence and whether the Commissioner used the proper legal standards 15 in reaching his decision. 16 Cir. 2009); Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). Vasquez v. Astrue, 572 F.3d 586, 591 (9th 17 18 The claimant is “disabled” for the purpose of receiving benefits 19 under the Act if he is unable to engage in any substantial gainful 20 activity due to an impairment which has lasted, or is expected to 21 last, for a continuous period of at least twelve months. 22 § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). 23 burden of establishing a prima facie case of disability.” 24 Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 25 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). 42 U.S.C. “The claimant bears the Roberts v. 26 27 28 The Commissioner has promulgated regulations establishing a fivestep sequential evaluation process for the ALJ to follow in a 2 1 disability case. 20 C.F.R. § 416.920. In the First Step, the ALJ 2 must determine whether the claimant is currently engaged in 3 substantial gainful activity. 4 Second Step, the ALJ must determine whether the claimant has a severe 5 impairment or combination of impairments significantly limiting him 6 from performing basic work activities. 7 so, in the Third Step, the ALJ must determine whether the claimant has 8 an impairment or combination of impairments that meets or equals the 9 requirements of the Listing of Impairments (“Listing”), 20 C.F.R. 20 C.F.R. § 416.920(b). If not, in the 20 C.F.R. § 416.920(c). 20 C.F.R. § 416.920(d). If 10 § 404, Subpart P, App. 1. If not, in the 11 Fourth Step, the ALJ must determine whether the claimant has 12 sufficient residual functional capacity despite the impairment or 13 various limitations to perform his past work. 14 If not, in Step Five, the burden shifts to the Commissioner to show 15 the claimant can perform other work that exists in significant numbers 16 in the national economy. 17 there is evidence of a mental impairment that may prevent a claimant 18 from working, the Commissioner has supplemented the five-step 19 sequential evaluation process with additional regulations addressing 20 mental impairments.1 20 C.F.R. § 416.920(f). 20 C.F.R. § 416.920(g). Moreover, where Maier v. Comm’r of the Soc. Sec. Admin., 154 21 1 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. § 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. § 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. § 416.920a(d). Fourth, when a mental impairment is found to be severe, the ALJ must determine if it meets or equals a Listing. 3 1 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 v. 6 Astrue, 481 F.3d 742, 746 (9th Cir. 2007), cert. denied, 552 U.S. 1141 7 (2008). 8 considered disabled . . . if alcoholism or drug addiction would . . . 9 be a contributing factor material to the Commissioner’s determination Rather, the Act provides that “[a]n individual shall not be 10 that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C). “[T]he 11 claimant bears the burden of proving that drug or alcohol addiction is 12 not a contributing factor material to his disability.” 13 F.3d at 744-45, 748; Ball v. Massanari, 254 F.3d 817, 821 (9th Cir. 14 2001). Parra, 481 15 16 “The ‘key factor . . . in determining whether drug addiction or 17 alcoholism is a contributing factor material to the determination of 18 disability’ is whether an individual would still be found disabled if 19 [he] stopped using alcohol or drugs.” 20 1240, 1245 (9th Cir. 1998) (citation omitted); see also 20 C.F.R. 21 § 416.935(b)(1) (same). 22 evaluate which of [the claimant’s] current physical and mental 23 limitations . . . would remain if [the claimant] stopped using drugs Sousa v. Callahan, 143 F.3d “In making this determination, [the ALJ] will 24 25 26 27 28 20 C.F.R. § 416.920a(d)(2). Finally, if a 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 [§ 416.920a(c)(3)].” 20 C.F.R. § 416.920a(d)(3), (e)(2). 4 1 or alcohol and then determine whether any or all of [the claimant’s] 2 remaining limitations would be disabling.” 3 “If the remaining limitations would still be disabling, then the 4 claimant’s drug addiction or alcoholism is not a contributing factor 5 material to his disability.” 6 remaining limitations would not be disabling, [the ALJ] will find that 7 [the claimant’s] drug addiction or alcoholism is a contributing factor 8 material to the determination of disability[,]” 20 C.F.R. 9 § 416.935(b)(2)(i); Parra, 481 F.3d at 747, and benefits will be 10 20 C.F.R. § 416.935(b)(2). Parra, 481 F.3d at 747. “If [the] . . . denied. 11 12 13 For individuals such as plaintiff, who have a substance abuse problem, the ALJ: 14 15 must first conduct the five-step inquiry without separating 16 out the impact of alcoholism or drug addiction. 17 finds that the claimant is not disabled under the five-step 18 inquiry, then the claimant is not entitled to benefits and 19 there is no need to proceed with the analysis under 20 20 C.F.R. § . . . 416.935. 21 is disabled and there is “medical evidence of [his or her] 22 drug addiction or alcoholism,” then the ALJ should proceed 23 under § . . . 416.935 to determine if the claimant “would 24 still [be found] disabled if [he or she] stopped using 25 alcohol or drugs.” If the ALJ If the ALJ finds that the claimant 26 27 Bustamante, 262 F.3d at 955 (citations omitted); see also 20 C.F.R. § 28 416.935(a) (“If we find that you are disabled and have medical 5 1 evidence of your drug addiction or alcoholism, we must determine 2 whether your drug addiction or alcoholism is a contributing factor 3 material to the determination of disability.” (emphasis added)); 4 Brueggemann v. Barnhart, 348 F.3d 689, 694-95 (8th Cir. 2003) (“The 5 plain text of the relevant regulation requires the ALJ first to 6 determine whether [the claimant] is disabled . . . without segregating 7 out any effects that might be due to substance abuse disorders. . . . 8 If the gross total of a claimant’s limitations, including the effect 9 of substance use disorders, suffices to show disability, then the ALJ 10 must next consider which limitations would remain when the effects of 11 the substance use disorders are absent.” (citations and footnote 12 omitted)); Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001) 13 (“The implementing regulations make clear that a finding of disability 14 is a condition precedent to an application of § 423(d)(2)(C). 15 [ALJ] must first make a determination that the claimant is disabled. 16 He must then make a determination whether the claimant would still be 17 found disabled if he or she stopped abusing alcohol.” (citations 18 omitted)). The 19 20 Applying the five-step sequential evaluation process, the ALJ 21 found plaintiff has not engaged in substantial gainful activity since 22 April 17, 2007, his application date. 23 plaintiff has the following severe combination of impairments: 24 mood disorder with psychotic features, asthma and a history of 25 substance abuse.” 26 substance abuse meets Listing 12.09 (Step Three), and plaintiff is 27 disabled based on his substance abuse. 28 determined that even if plaintiff stopped his substance abuse, he (Step Two). (Step One). The ALJ then found “a The ALJ found that plaintiff’s 6 A.R. 11-13. The ALJ next 1 would continue to have a severe impairment (Step Two); however, it 2 would not meet or equal a Listing. 3 plaintiff has no past relevant work. 4 determined that if plaintiff stopped his substance abuse, he could 5 perform a significant number of jobs in the national economy; 6 therefore, he is not disabled. (Step Three). (Step Four). The ALJ then found Finally, the ALJ (Step Five). 7 8 9 II A claimant’s residual functional capacity (“RFC”) is what he can 10 still do despite his physical, mental, nonexertional, and other 11 limitations. 12 see also Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th 13 Cir. 2009) (RFC is “a summary of what the claimant is capable of doing 14 (for example, how much weight he can lift).”). 15 that if plaintiff stopped abusing drugs, he could “perform a full 16 range of work at all exertional levels but with the following 17 nonexertional limitations: he is limited to simple and repetitive 18 tasks, and to work requiring no significant contact with the public 19 although incidental contact would be permissible, and as a precaution, 20 he is limited to work not involving exposure to concentrated fumes, 21 odors, dusts and gases.” 22 ALJ’s RFC assessment is not supported by substantial evidence because 23 the ALJ failed to properly consider the opinion of Inderjit Seehrai, 24 M.D., an examining psychiatrist. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); A.R. 14. Here, the ALJ found However, plaintiff contends the The plaintiff is correct. 25 26 “[T]he ALJ may only reject . . . [an] examining physician’s 27 uncontradicted medical opinion based on ‘clear and convincing 28 reasons[,]’” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 7 1 1164 (9th Cir. 2008) (citation omitted); Widmark v. Barnhart, 454 F.3d 2 1063, 1066 (9th Cir. 2006), and “[e]ven if contradicted by another 3 doctor, the opinion of an examining doctor can be rejected only for 4 specific and legitimate reasons that are supported by substantial 5 evidence in the record.” 6 Admin., 166 F.3d 1294, 1298-99 (9th Cir. 1999); Ryan v. Comm’r of Soc. 7 Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Regennitter v. Comm’r of the Soc. Sec. 8 9 On July 21, 2007, Dr. Seehrai examined plaintiff and diagnosed 10 him as having an unspecified mood disorder and an unspecified 11 psychotic disorder and a history of polysubstance dependency, in early 12 remission; however, Dr. Seehrai wanted to rule out bipolar disorder I 13 with psychotic features and schizoaffective disorder, bipolar disorder 14 type, and substance/alcohol-induced mood disorder and psychotic 15 disorder. 16 insight and judgment and is not capable of managing funds by himself, 17 and opined plaintiff’s Global Assessment of Functioning (“GAF”) was 18 50.2 A.R. 221-25. A.R. 224-25. Dr. Seehrai found plaintiff had marginal Dr. Seehrai found: 19 20 [plaintiff] was cooperative at the time of the interview. 21 He did not show any anger or irritable mood. 22 of interacting with other people and the public when he is 23 in a mallow [sic] mood. He is capable His mental status examination and 24 2 25 26 27 28 A GAF of 50 means that the plaintiff exhibits “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job).” American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000). 8 1 history show that he has mood swings between depression, 2 anger and psychosis. 3 repetitive tasks but he has moderate impairment to do 4 detailed and complex tasks because of his mood swings, 5 sedative medications and medical problems. 6 impairment to finish his workday or workweek because of his 7 mood swings, psychosis, short-term memory deficit, physical 8 problems and sedative medication. He is capable of doing simple and He has moderate 9 10 A.R. 225. 11 12 The ALJ relied on some of Dr. Seehrai’s opinions in assessing 13 plaintiff’s RFC, and found plaintiff can only perform simple 14 repetitive tasks and work requiring no significant public contact. 15 A.R. 14, 17. 16 without any explanation,3 Dr. Seehrai’s opinions that plaintiff has a 17 moderate impairment in his ability to finish his workday or workweek 18 because of his mood swings, psychosis, short-term memory deficit, 19 physical problems and sedative medication. 20 error. 21 Moreover, since the ALJ relied on only some of Dr. Seehrai’s opinions 22 in assessing plaintiff’s RFC, see A.R. 17-18, “substantial evidence 23 does not support the [ALJ’s RFC] assessment.” However, the ALJ ignored, and implicitly rejected Ibid. This was legal Lingenfelter, 504 F.3d at 1038 n.10; Smolen, 80 F.3d at 1286. Lingenfelter, 504 F.3d 24 3 25 26 27 28 It is of course true, as the Commissioner argues, that “an ALJ is not required to adopt all of an examining physician’s assessment.” Jt. Stip. at 6:1-8; Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989). However, the ALJ is required to explain his reasons for rejecting those portions of an examining physician’s assessment he chooses not to adopt. Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 2007). 9 1 at 1040; Widmark, 454 F.3d at 1070. “Nor does substantial evidence 2 support the ALJ’s step-five determination, since it was based on this 3 erroneous RFC assessment.”4 Lingenfelter, 504 F.3d at 1041. 4 5 III 6 When the Commissioner’s decision is not supported by substantial 7 evidence, the Court has authority to affirm, modify, or reverse the 8 Commissioner’s decision “with or without remanding the cause for 9 rehearing.” 42 U.S.C. § 405(g); McCartey v. Massanari, 298 F.3d 1072, 10 1076 (9th Cir. 2002). “Remand for further administrative proceedings 11 is appropriate if enhancement of the record would be useful.” 12 v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 13 appropriate so the ALJ can properly consider Dr. Seehrai’s opinions in 14 determining plaintiff’s RFC and whether plaintiff is disabled. 15 Widmark, 454 F.3d at 1070; Bunnell v. Barnhart, 336 F.3d 1112, 1116 16 (9th Cir. 2003). Benecke Here, remand is 17 18 ORDER 19 IT IS ORDERED that: (1) plaintiff’s request for relief is granted 20 and defendant’s request for relief is denied; and (2) the 21 Commissioner’s decision is reversed, and the action is remanded to the 22 Social Security Administration for further proceedings consistent with 23 this Opinion and Order, pursuant to sentence four of 42 U.S.C. 24 § 405(g), and Judgment shall be entered accordingly. 25 DATE: November 15, 2010 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN 26 4 27 28 Having reached this conclusion, it is unnecessary to reach the other issues plaintiff raises, none of which warrant any further relief than herein granted. R&R-MDO\09-1781.mdo - 11/15/10 10 1 UNITED STATES MAGISTRATE JUDGE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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