Alice Amaro v. Michael J Astrue, No. 5:2009cv02294 - Document 27 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (bem)
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Alice Amaro v. Michael J Astrue Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ALICE AMARO, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 17 Defendant. ) Case No. ED CV 09-2294 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION AND SUMMARY 21 On December 29, 2009, plaintiff Alice Amaro ( Plaintiff ) filed a complaint 22 against defendant Michael J. Astrue ( Defendant ), the Commissioner of the Social 23 Security Administration, seeking review of a denial of supplemental security income 24 benefits ( SSI ). [Docket No. 3.] On March 5, 2010, Defendant filed his answer, along with a certified copy of 25 26 the administrative record. [Docket Nos. 11, 12, 13.] Now, having carefully studied, inter alia, the parties written submissions and 27 28 the administrative record, the Court finds that, as detailed below, this is essentially a Dockets.Justia.com 1 case of mental impairments versus substance abuse and, here, the Administrative 2 Law Judge ( ALJ ) failed to properly evaluate whether the latter is a contributing 3 factor material to her disability. The Court thus remands this matter to the 4 Commissioner in accordance with the principles and instructions enunciated in this 5 Memorandum Opinion and Order. 6 II. 7 PERTINENT FACTUAL AND PROCEDURAL BACKGROUND 8 Plaintiff, who was 35 years old on the date of her first administrative hearing, 9 has a ninth grade education. (See Administrative Record ( AR ) at 78, 91, 687.) On May 12, 2006, Plaintiff protectively filed for SSI, alleging that she has 10 11 been disabled since May 5, 2004 due to mental illness. (See AR at 57, 70, 78-83, 12 84.) Plaintiff s application was denied initially and upon reconsideration, after 13 which she filed a request for a hearing. (Id. at 43, 44, 55, 57-61, 70-74.) On January 10, 2008, Plaintiff, represented by counsel, appeared and testified 14 15 at a hearing before an ALJ. (See AR at 687, 689-696, 706-710.) Deborah Lutjens 16 ( Ms. Lutjens ), Plaintiff s case manager from Riverside County Department of 17 Mental Health, also testified. (Id. at 697-706, 709-10.) Sandra Richter, a vocational 18 expert ( VE ), appeared but did not testify. (See id. at 687; see generally id. at 68919 711.) 20 On April 23, 2008, a second administrative hearing was held in order to obtain 21 expert testimony due to new evidence that was added to Plaintiff s file. (See AR at 22 712, 714.) The ALJ heard testimony from Edward Jasinski, Ph.D., a medical expert 23 ( ME ). (Id. at 717-22.) Plaintiff, represented by counsel, and a VE appeared, but 24 did not testify. (See id. at 712; see generally id. at 714-23.) 25 On September 17, 2008, the ALJ denied Plaintiff s request for benefits. (AR 26 at 20-26.) Applying the well-known five-step sequential evaluation process, the 27 ALJ found, at step one, that Plaintiff has not engaged in substantial gainful activity 28 since her SSI application date. (Id. at 22.) 2 At step two, the ALJ found that Plaintiff suffers from severe impairments 1 2 consisting of a history of bipolar disorder or major depression with psychotic 3 features and methamphetamine abuse or dependence. (AR at 23 (emphasis 4 omitted).) At step three, the ALJ determined that the severity of Plaintiff s impairments, 5 6 including the substance abuse disorder, met the requirements of Listing 12.09 set 1/ 7 forth in the Social Security regulations. (AR at 17.) However, the ALJ also 8 determined that Plaintiff s methamphetamine dependence was a contributing factor 9 material to the finding of disability. (Id. at 23, 26.) The ALJ then assessed Plaintiff s residual functional capacity2/ ( RFC ) and 10 11 determined that, [i]f [Plaintiff] stopped the substance use, the remaining limitations 12 would not cause more than a minimal impact on [Plaintiff s] ability to perform basic 13 work activities. (AR at 23 (emphasis omitted).) Specifically, the ALJ found that 14 without substance use, Plaintiff would have mild limitation in activities of daily 15 living, social functioning and concentration, persistence, or pace. (Id. at 2516 26.) The ALJ concluded that absent any substance abuse, Plaintiff would not have 17 18 a severe impairment or combination of impairments. (AR at 23 (emphasis 19 omitted).) Thus, the ALJ concluded that Plaintiff was not suffering from a disability 20 as defined by the Act. (Id. at 21, 26.) Plaintiff filed a timely request for review of the ALJ s decision, which was 21 22 23 24 1/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 2/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n. 5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s 27 residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n. 2 (9th 28 Cir. 2007). 3 1 denied by the Appeals Council. (AR at 4-6, 10.) The ALJ s decision stands as the 2 final decision of the Commissioner. 3 III. 4 STANDARD OF REVIEW 5 This Court is empowered to review decisions by the Commissioner to deny 6 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 7 Administration must be upheld if they are free of legal error and supported by 8 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as 9 amended Dec. 21, 2001). If the court, however, determines that the ALJ s findings 10 are based on legal error or are not supported by substantial evidence in the record, 11 the court may reject the findings and set aside the decision to deny benefits. 12 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 13 242 F.3d 1144, 1147 (9th Cir. 2001). 14 Substantial evidence is more than a mere scintilla, but less than a 15 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 16 evidence which a reasonable person might accept as adequate to support a 17 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 18 at 459. To determine whether substantial evidence supports the ALJ s finding, the 19 reviewing court must review the administrative record as a whole, weighing both 20 the evidence that supports and the evidence that detracts from the ALJ s 21 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 22 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 23 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 24 evidence can reasonably support either affirming or reversing the ALJ s decision, 25 the reviewing court may not substitute its judgment for that of the ALJ. Id. 26 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 27 /// 28 /// 4 1 IV. 2 ISSUES PRESENTED 3 Three disputed issues are presented for decision here: 4 1. whether the ALJ erred in her step two finding that Plaintiff had a severe 5 substance abuse disorder, (Pl. s Br. at 8-9; Reply at 1-4); 2. whether Plaintiff s impairments met or equaled Listing 12.01, 12.04, 6 7 12.06, or 12.08, (Pl. s Br. at 9-10); and 3. whether the ALJ erred in finding that Plaintiff s drug addiction was a 8 9 contributing factor material to a finding of disability. (Id. at 10-15; Reply at 4-5.) Under the circumstances here, the Court finds that the third issue is dispositive 10 11 of this matter, and does not reach the remaining two issues. V. 12 13 DISCUSSION AND ANALYSIS 14 Plaintiff contends that the evidence shows that drug addiction was not a 15 contributing factor material to a finding of disability. (Pl. s Br. at 10 (emphasis 16 omitted).) 17 Plaintiff argues that [t]here is affirmative evidence that any supposed 18 substance abuse did not contribute to [Plaintiff s] mental impairments in any 19 material way. (Pl. s Br. at 10.) Further, Plaintiff maintains that the ALJ did not 20 rely on any countervailing and substantial evidence [that Plaintiff s] symptoms of 21 mental impairment were similar to her symptoms when supposedly on 22 methamphetamines. (Id. at 12.) A. The ALJ Must Determine Whether Plaintiff s Drug Addiction Was a 23 24 25 Contributing Factor Material to the Determination of Disability Title 42 U.S.C. § 423(d)(2)(C) provides that [a]n individual shall not be 26 considered to be disabled for purposes of [benefits under Title II or XVI of the Act] 27 if alcoholism or drug addiction would . . . be a contributing factor material to the 28 Commissioner s determination that the individual is disabled. See also Sousa v. 5 1 Callahan, 143 F.3d 1240, 1242 (9th Cir. 1998). The Social Security regulations 2 echo Section 423: 3 If we find that you are disabled and have medical evidence of 4 your drug addiction or alcoholism, we must determine whether 5 your drug addiction or alcoholism is a contributing factor to the 6 determination of disability. 7 20 C.F.R. §§ 404.1535(a) & 416.935(a); see also Bustamante v. Massanari, 262 8 F.3d 949, 954 (9th Cir. 2001). 9 Specifically, the ALJ must first conduct the five-step inquiry without 10 separating out the impact of alcoholism or drug addiction. Bustamante, 262 F.3d at 11 955. If the ALJ finds that the claimant is not disabled under the five-step inquiry, 12 then the claimant is not entitled to benefits and there is no need to proceed with the 13 analysis[.] Id. 14 However, [i]f the ALJ finds that the claimant is disabled and there is medical 15 evidence of his or her drug addiction or alcoholism, then the ALJ should to 16 determine if the claimant would still be found disabled if he or she stopped using 17 alcohol or drugs. Bustamante, 262 F.3d at 955 (internal brackets, quotation marks, 18 and citation omitted). 19 The claimant bears the burden of proving that drug or alcohol addiction is 20 not a contributing factor material to his [or her] disability. Parra v. Astrue, 481 21 F.3d 742, 748 (9th Cir. 2007), cert. denied, 552 U.S. 1141 (2008). 22 B. Evidence of Plaintiff s Mental Impairments and Substance Abuse 23 The record is replete with evidence of Plaintiff s mental impairments. 24 On December 13, 2006, Plaintiff was admitted to Fontana Medical Center 25 while she was in jail. (AR at 218.) The next day, on December 14, 2006, a treating 26 physician at Fontana Medical Center diagnosed Plaintiff with a history of bipolar 27 28 6 3/ 1 disorder and major depression with psychotic symptoms. (AR at 222.) Approximately a month later, on January 25, 2007, psychiatrist Romualdo R. 2 3 Rodriguez, M.D. ( Dr. Rodriguez ) performed a complete psychiatric evaluation of 4 Plaintiff. (AR at 191-98.) Dr. Rodriguez did not review any of Plaintiff s medical 5 records in performing his evaluation. (Id. at 191.) Dr. Rodriguez found Plaintiff to be a reliable historian, no evidence of 6 7 exaggeration or manipulation, and that Plaintiff is probably not under the 8 influence of drugs or alcohol for this interview. (AR at 191, 194.) Dr. Rodriguez noted Plaintiff s chaotic childhood and psychiatric history 9 10 involving emotional and physical abuse. (AR at 192.) Dr. Rodriguez reported that 11 her first marriage ended after three years because he was physically abusive and 12 she currently lives with a boyfriend who beats her. (Id. at 193.) Dr. Rodriguez 13 described that Plaintiff s face is currently bruised during this interview. (Id. at 14 194.) Dr. Rodriguez indicated that Plaintiff s medications include lithium, Paxil, 15 16 trazodone, and Seroquel and she has been on and off psychiatric medications since 17 about 13 or 14 years of age. (AR at 191, 192.) Dr. Rodriguez diagnosed Plaintiff 18 with attention deficit hyperactivity disorder ( ADHD ), post-traumatic stress 4/ 19 disorder ( PTSD ), and provided a rule-out diagnosis of drug and alcohol 20 abuse/dependence. (Id. at 196.) Dr. Rodriguez opined that if [Plaintiff] ensured 21 3/ At that juncture at least, there did not appear to be evidence of substance abuse. An initial toxicology screen showed Plaintiff tested positive for Tylenol, but 23 was otherwise all negative. (AR at 220.) 24 4/ A rule-out diagnosis is not a diagnosis. In the medical context, a rule-out 25 diagnosis means there is evidence that the criteria for a diagnosis may be met, but 26 more information is needed in order to rule it out. See Langford v. Astrue, 2008 WL 2073951, at *3 (E.D. Cal. 2008); United States v. Grape, 549 F.3d 591, 593-94 n. 2 27 (3rd Cir. 2008); Williams v. United States, 747 F. Supp. 967, 978 n. 19 (S.D.N.Y. 28 1990). 22 7 1 total abstinence from all drugs and alcohol which she denies, and ensured proper 2 psychiatric help and if she were to leave the current abusive relationship she is in she 3 could significantly improve within 12 months. (Id. at 197.) Next comes non-examining physician K. J. Loomis, M.D. ( Dr. Loomis ). 4 5 On January 31, 2007, a few days after Dr. Rodriguez s assessment, Dr. Loomis 6 completed a Psychiatric Review Technique Form. (AR at 159-69.) Dr. Loomis 7 found that Plaintiff suffers from an anxiety-related disorder, substance addiction 8 disorder, and PTSD by history. (Id. at 159, 163.) 9 Dr. Loomis found that Plaintiff did not suffer from any restriction of activities 10 of daily living, difficulties in maintaining social functioning, or any repeated 11 episodes of decompensation, each of extended duration. (AR at 167.) Dr. Loomis 12 further opined that Plaintiff had mild difficulties in maintaining concentration, 13 persistence or pace. (Id.) 14 On August 9, 2007, an adult intake assessment from the Riverside County 15 Department of Mental Health ( RCDMH ) reported that Plaintiff entered foster 16 care [at the age of 13] due to [her] father being charged and found guilty for 17 molesting her older sister. (AR at 325-327.) The assessment also indicated that 18 Plaintiff was molested by her grandfather at the age of 12, became suicidal when 19 her father went to prison, and was molested by her mother s boyfriends during 20 weekend visits from the age of 15. (Id. at 325.) A prior intake assessment dated 21 January 3, 2007 reported Plaintiff was [f]irst hospitalized at age 15 at Charter Oaks 22 due to [a suicide attempt] and was hospitalized at age 20 for a subsequent suicide 23 attempt. (Id. at 405.) On August 24, 2007, a treating physician at RCDMH diagnosed Plaintiff with 24 25 bipolar disorder and provided a rule-out diagnosis of schizophrenia. (AR at 329.) 26 The RCDMH treating physician also noted Plaintiff s legal history based on 27 domestic violence against her boyfriend and/or spouse. (Id. at 331-32.) At the first administrative hearing on January 10, 2008, Plaintiff s case 28 8 1 manager from RCDMH, Ms. Lutjens, testified that she sees Plaintiff three days a 2 week and also communicates with her over the telephone multiple times a week. 3 (AR at 698.) Ms. Lutjens explained that she has been Plaintiff s case manager since 4 August of 2006. (Id.) 5 Ms. Lutjens testified that Plaintiff s psychiatric medications are so strong 6 that she has a hard time getting up in the morning, or sometimes she just won t get 7 up and get out of bed unless I call or come and get her out of bed. (AR at 698.) 8 Ms. Lutjens reported that she was aware that on the county computers, it does show 9 episodes [of depression] for a long period of time and that Plaintiff has a history of 10 mental illness. (Id. at 700.) Ms. Lutjens stated that she monitors Plaintiff on 11 whether she completes her chores, such as cleaning her room, and whatever chores 12 assigned to her for the week, at her housing facility because she doesn t do it on 13 her own. (Id. at 701.) 14 Further, Ms. Lutjens testified that I can honestly tell you when she is not on 15 medications, she appears to look like she s on drugs. So when she is on medication, 16 she s more stable than if she s not. And people tend to think that when she s not on 17 medications, that she s either drunk or high on drugs. (AR at 705.) Ms. Lutjens 18 reported, however, that she did not think Plaintiff is on drugs, elaborating [t]hat s 19 how [Plaintiff] is when she doesn t take her medication[ a]nd it s always been like 20 that for her. (Id.) 21 C. The ALJ s Assessment of Plaintiff s Substance Abuse 22 As mentioned above, the ALJ found that if [Plaintiff] stopped the substance 23 use, the remaining limitations would not significantly limit her ability to perform 24 basic work activities. (AR at 24.) In making this finding, the ALJ relied on the 25 opinions of Dr. Rodriguez and Dr. Loomis. (See id. at 24-25.) D. The ALJ Improperly Evaluated Plaintiff s Substance Abuse 26 27 In sum, this Court is persuaded that the ALJ s conclusion that Plaintiff s 28 substance abuse is a material contributing factor to disability is not supported by 9 1 substantial evidence on this record. Four reasons guide this Court s determination. First, the ALJ s reliance on examining psychiatrist Dr. Rodriguez was 2 3 misplaced. Dr. Rodriguez did not review any of Plaintiff s extensive medical record 4 before formulating his opinion regarding Plaintiff s limitations without the presence 5 of substance abuse. Consultative examiners should be provided with necessary 6 background information regarding the claimant s condition. See 20 C.F.R. 7 § 416.917. Accordingly, Dr. Rodriguez s isolated and barren examination of 8 Plaintiff cannot be afforded great weight. See Ladue v. Chater, 1996 WL 83880, at 9 *5 (N.D. Cal. 1996) (error for an ALJ to afford considerable weight to an examining 10 physician where that physician lack[s] important background information regarding 11 plaintiff ). Second, the ALJ faltered in relying on Dr. Loomis opinion. Dr. Loomis 12 13 completed the Psychiatric Review Technique form on January 31, 2007. (AR at 14 159-69.) However, a significant portion of Plaintiff s treatment records from the 15 Riverside County Department of Mental Health were completed and submitted after 16 January 2007. (See, e.g., id. at 325.) Accordingly, similar to Dr. Rodriguez s 17 opinion, non-examining and reviewing physician Dr. Loomis opinion is entitled to 18 little weight. 19 Third, this record contains many instances demonstrating that Plaintiff suffers 20 from mental impairments and limitations, e.g., she has difficulty with anger and 21 completing tasks, her thought contains delusional and paranoid content, (AR at 21822 20, 464, 474, 519, 534, 643), without the effects of any substance abuse. Fourth and notably, while Defendant argues that the ALJ properly relied on 23 24 the ME s opinion in determining that absent substance abuse, Plaintiff would have 25 no functional limitations, that is neither what the ALJ cited, nor what the ME 26 testified to at the hearing. (Def. s Br. at 5.) The Court s review is limited to the reasons actually cited by the ALJ in her 27 28 decision, specifically, in finding that Plaintiff is capable of working absent any 10 1 substance abuse. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) ( We review 2 only the reasons provided by the ALJ in the disability determination and may not 3 affirm the ALJ on a ground upon which he did not rely. ). However, the ALJ did 4 not explicitly rely on the ME s opinion in making this finding. 5 In any event, to the extent that the ALJ relied on the ME s opinion in finding 6 that substance abuse is a material factor causing disability, the ALJ s decision lacks 7 substantial support. The ME testified that he could not opine as to Plaintiff s 8 limitations absent substance abuse. (See AR at 719 (ME testifying that he could not 9 rate the B criteria, i.e., the degree of functional limitations, if you factor out the 10 meth abuse ).) At best, the ME stated that [a]bsen[t] substance abuse, he would expect 11 12 [the limitations] to be significantly less[,] but would need more information such 13 as actual drug screenings to make a conclusive determination. (AR at 720 14 (emphasis added).) Thus, the Court finds that the ME did not provide a plain 15 statement as to whether Plaintiff suffers from disabling impairments absent any drug 16 abuse. See Lewis v. Astrue, 2010 WL 4718792, at *6 (C.D. Cal. 2010) ( [T]he 17 record does not contain a clear statement from a medical professional as to the effect 18 on Plaintiff s claimed mental impairment if she were to abstain from all substance 19 abuse. ). 20 VI. 21 REMAND IS APPROPRIATE 22 This Court has discretion to remand or reverse and award benefits. McAllister 23 v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989, as amended Oct. 19, 1989). Where no 24 useful purpose would be served by further proceedings, or where the record has been 25 fully developed, it is appropriate to exercise this discretion to direct an immediate 26 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); 27 Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000, as amended May 4, 2000), 28 cert. denied, 531 U.S. 1038 (2000). Where there are outstanding issues that must be 11 1 resolved before a determination can be made, and it is not clear from the record that 2 the ALJ would be required to find plaintiff disabled if all the evidence were properly 3 evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 4 F.3d at 1179-80. Here, without substantial evidence in the record that substance abuse is a 5 6 material contributing factor and that, absent the abuse, Plaintiff has the capacity to 7 work and sustain employment, remand is required. Because the record does not 8 contain a clear statement from a medical professional supported by substantial 9 evidence as to the effect on Plaintiff s mental impairments if she were to abstain 10 from all substance abuse, on remand, the ALJ shall obtain additional information 11 and clarification regarding Plaintiff s limitations if she were to abstain from all 12 substance abuse. Further, the ALJ shall reassess the medical opinions in the record and provide 13 14 sufficient reasons under the applicable legal standard for rejecting any portion of the 5/ 15 medical opinions. Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 16 17 REVERSING the decision of the Commissioner denying benefits and 18 REMANDING the matter for further administrative action consistent with this 19 decision. 20 21 Dated: March 14, 2011 ______________________________ 22 Hon. Jay C. Gandhi United States Magistrate Judge 23 24 25 26 27 5/ In light of the Court s remand instructions, it is unnecessary for the Court to 28 address Plaintiff s remaining contentions. (See Pl. s Br. at 8-10; Reply at 1-4.) 12
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