Kelly McKay v. Michael J. Astrue, No. 5:2012cv00609 - Document 20 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff Kelly McKay filed this action on May 11, 2012. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge. (Dkt. Nos. 8, 9.) On De cember 28, 2012, the parties filed a Joint Stipulation(JS) that addressed the disputed issues. The court has taken the matter 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) Modified on 6/21/2013 (mp).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KELLY MCKAY, 12 Plaintiff, 13 v. 14 15 16 CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 12-609 AGR MEMORANDUM OPINION AND ORDER Plaintiff Kelly McKay filed this action on May 11, 2012. Pursuant to 28 19 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge. 20 (Dkt. Nos. 8, 9.) On December 28, 2012, the parties filed a Joint Stipulation 21 ( JS ) that addressed the disputed issues. The court has taken the matter under 22 submission without oral argument. 23 24 25 26 27 28 Having reviewed the entire file, the court affirms the decision of the Commissioner. 1 I. 2 PROCEDURAL BACKGROUND 3 On February 19, 2008, McKay filed applications for disability insurance 4 benefits and supplemental security income alleging an onset date of December 7, 5 2007. AR 10, 220-23, 226-33. The applications were denied initially and on 6 reconsideration. AR 10, 82, 100, 118, 124. McKay requested a hearing before 7 an Administrative Law Judge ( ALJ ). AR 143-44. On April 20, 2011, the ALJ 8 conducted a hearing at which McKay, a medical expert, and a vocational expert 9 testified.1 AR 36-65. On May 13, 2011, the ALJ issued a decision denying 10 benefits. AR 10-27. On March 12, 2012, the Appeals Council denied the request 11 for review. AR 1-3. This action followed. 12 II. 13 STANDARD OF REVIEW 14 Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner s 15 decision to deny benefits. The decision will be disturbed only if it is not supported 16 by substantial evidence, or if it is based upon the application of improper legal 17 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 18 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 19 Substantial evidence means more than a mere scintilla but less than a 20 preponderance it is such relevant evidence that a reasonable mind might 21 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 22 determining whether substantial evidence exists to support the Commissioner s 23 decision, the court examines the administrative record as a whole, considering 24 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 25 26 27 28 1 McKay testified at a hearing on October 26, 2010, but the hearing was continued to allow submission of additional medical evidence and retention of a medical expert. AR 68-81. After the continuance, over 1,500 pages of additional evidence was produced. AR 1287-2818. 2 1 evidence is susceptible to more than one rational interpretation, the court must 2 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 3 III. 4 DISCUSSION 5 A. 6 A person qualifies as disabled, and thereby eligible for such benefits, only 7 if his physical or mental impairment or impairments are of such severity that he is 8 not only unable to do his previous work but cannot, considering his age, 9 education, and work experience, engage in any other kind of substantial gainful 10 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 11 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). Disability 12 B. 13 The ALJ found that McKay had the severe impairments of hernias, chronic The ALJ s Findings 14 abdominal pain, bipolar disorder, and substance abuse. AR 13. McKay s 15 impairments, including the substance abuse disorders, met Listings 12.04 and 16 12.09. Id. 17 If McKay stopped the substance abuse, her impairments would not meet or 18 equal a listed impairment. AR 14. If McKay stopped the substance abuse, she 19 would have the residual functional capacity to perform a range of sedentary work. 20 AR 15. She can lift and/or carry 10 pounds occasionally and frequently, stand 21 and/or walk for two hours with regular breaks, sit for six hours with regular 22 breaks, and occasionally climb ramps and stairs. Id. She can never climb 23 ladders, ropes, or scaffolds; she can occasionally balance, stoop, kneel, crouch 24 and crawl. Id. She can have no more than a moderate degree of stress from all 25 sources; she is restricted from high production quotas; she can have no intrusive 26 supervision or peer pressure. Id. She is limited to no more than three- to five- 27 step moderately complex tasks; she should avoid inherently stressful jobs dealing 28 with the public, specifically a complaint taker. Id. If McKay stopped the 3 1 substance abuse, she would be able to perform her past relevant work. AR 25. 2 Alternatively, there are other jobs existing in the national economy that she can 3 perform. Id. McKay s substance abuse disorder was a contributing factor 4 material to the determination of disability. AR 26. 5 C. 6 McKay contends that the ALJ did not properly consider the opinion of Dr. 7 8 9 Treating Physician Gill, her treating psychiatrist. An opinion of a treating physician is given more weight than the opinions of non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). To 10 reject an uncontradicted opinion of a treating physician, an ALJ must state clear 11 and convincing reasons that are supported by substantial evidence. Bayliss v. 12 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). When, as here, a treating 13 physician s opinion is contradicted by another doctor, the ALJ may not reject this 14 opinion without providing specific and legitimate reasons supported by substantial 15 evidence in the record. This can be done by setting out a detailed and thorough 16 summary of the facts and conflicting clinical evidence, stating his interpretation 17 thereof, and making findings. Orn, 495 F.3d at 632 (citations and quotation 18 marks omitted). When there is conflicting medical evidence, the Secretary must 19 determine credibility and resolve the conflict. Thomas v. Barnhart, 278 F.3d 947, 20 956-57 (9th Cir. 2002) (citation and quotation marks omitted). 21 Dr. Gill completed a Work Capacity Evaluation (Mental) on September 17, 22 2010. AR 371-72. He opined that McKay had marked limitations in her ability to 23 remember locations and work-like procedures; maintain attention and 24 concentration for extended periods; perform activities within a schedule, maintain 25 regular attendance, and be punctual within customary tolerances; sustain an 26 ordinary routine without special supervision; work in coordination with or in 27 proximity to others without being distracted by them; accept instructions and 28 respond appropriately to criticism from supervisors; get along with co-workers or 4 1 peers without distracting them or exhibiting behavioral extremes; respond 2 appropriately to changes in the work setting; and set realistic goals or make plans 3 independently of others. Id. McKay had moderate limitations in the ability to 4 interact appropriately with the general public. AR 371. She had no limitations in 5 the ability to understand and remember very short and simple instructions, carry 6 out very short and simple instructions, ask simple questions or request 7 assistance, and be aware of normal hazards and take appropriate precautions. 8 AR 371-72. She would be absent from work at least three days per month due to 9 her impairments or treatment. AR 372. 10 The ALJ gave great weight to Dr. Gill s opinion regarding McKay s 11 limitations while abusing substances. AR 14. The ALJ noted that the limitations 12 essentially preclude substantial gainful activity.2 AR 24. The ALJ found that Dr. 13 Gill s opinion was supported by McKay s treatment history and statements while 14 she was abusing substances. AR 14. 15 However, the ALJ gave little weight to Dr. Gill s opinion regarding 16 McKay s limitations when she was not abusing substances. AR 24. Dr. Gill did 17 not take into consideration [McKay s] functional abilities if she were to stop 18 abusing substances and was compliant with her treatment regimen. Id. 19 McKay contends the ALJ s finding that Dr. Gill did not consider her 20 functional abilities if she were to stop abusing substances is unfounded. JS 6. 21 She argues Dr. Gill must have evaluated her limitations apart from her use of 22 drugs or alcohol because the Work Capacity Evaluation (Mental) form states that 23 the assessment shall be made apart from the effects of drug or alcohol use or 24 abuse. AR 371. 25 26 27 28 2 McKay argues that the ALJ does not mention each significant finding in Dr. Gill s opinion. However, the ALJ is not required to discuss every piece of evidence on record. See Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). The ALJ properly addressed Dr. Gill s opinion regarding the effect of McKay s limitations on her ability to work. AR 24. 5 1 However, the record does not reflect that Dr. Gill knew about McKay s 2 ongoing drug abuse. AR 1247-64, 2497-2502. As the ALJ noted, McKay has a 3 history of polysubstance dependence including marijuana, speed, and alcohol. 4 AR 17, 583. The record contains numerous references to McKay s drug-seeking 5 behavior and ongoing addiction to narcotics, despite her testimony that she does 6 not have any drug abuse problems. See, e.g., AR 17, 47, 1040, 1136-37, 1506, 7 1659, 1907, 2290, 2329, 2564, 2572, 2643-44, 2779. For example, in June 2010, 8 three months before Dr. Gill s evaluation, an emergency room doctor noted 9 McKay s very alarming pattern of narcotic prescription use, . . . that includes 10 getting over 100 tablets of narcotics on one day and then the very next day 11 getting [a] prescription for further narcotics. AR 2527. By contrast, Dr. Gill s 12 treatment records note that McKay denied current drug abuse, and admitted only 13 to a history of alcohol abuse and prior use of methamphetamines. AR 17, 1249, 14 1263, 1368. Dr. Gill diagnosed alcohol abuse but did not diagnose substance 15 abuse. AR 17, 1264. The reasonable inference is that Dr. Gill was unaware of 16 McKay s ongoing drug use and thus could not have rendered his opinion apart 17 from the effects of McKay s drug abuse on her ability to work. 18 The ALJ stated specific and legitimate reasons, supported by substantial 19 evidence for rejecting Dr. Gill s opinion regarding McKay s functional limitations 20 when she is not abusing substances.3 21 22 23 24 25 26 27 28 3 McKay argues the ALJ erred in failing to contact Dr. Gill to obtain clarification of the opinions. JS 6. The ALJ did not err because there is no indication of ambiguity in the record. 6 1 IV. 2 ORDER 3 4 5 6 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on all parties or their counsel. 7 8 DATED: June 21, 2013 ALICIA G. ROSENBERG United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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