Norman v. Commissioner Social Security, No. 3:2011cv00854 - Document 20 (D. Or. 2012)
Court Description: OPINION AND ORDER. Signed on 08/08/2012 by Judge Malcolm F. Marsh. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON Case No. 3:11-cv-00854-MA TOBY M. NORMAN, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. RICHARD McGINTY McGinty & Belcher, PC P.O. Box 12806 Salem, OR 97301 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney District of Oregon ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Ave., Suite 600 Portland, OR 97204-2902 DAVID MORADO Regional Chief Counsel SIMONE PEREIRA CAIN Special Assistant United States Attorney Office of the General Counsel Social Security Administration 1301 Young St., Ste A702 Dallas, TX 75202-5433 Attorneys for Defendant 1 - OPINION AND ORDER OPINION AND ORDER MARSH, Judge Plaintiff Toby M. Norman seeks judicial review of the final decision of the Commissioner of Social Security applications for disability insurance benefits disability benefits (CDB) under 42 U.S.C. §§ denying his (DIB) and child's 402(d) and 416(e) of the Social Security Act (the Act), and supplemental security income (SSI) disability benefits under 42 U.S.C. 138l(a) of the Act. § This Court has jurisdiction pursuant to 42 U.S.C. 405(g). § For the reasons that follow, this court reverses the decision of the Commissioner, and remands the case for further consideration. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff protectively filed applications for COB, DIB, and SSI on September 11, 2006, alleging onset of disability on December 1, 1997. The claims were Plaintiff reconsideration. initially requested a denied hearing and before upon an administrative law judge (ALJ). An ALJ held a hearing on December 10, appeared 2009, at which A testified. plaintiff vocational expert, C. with Kay his Wise, plaintiff's mother, also appeared and testified. 2009, the ALJ application - issued three unfavorable attorney as well and as On December 18, decisions one which are virtually identical in substance. per The Appeals Council denied plaintiff's request for review on June 20, 2011. The ALJ's decisions therefore became the final decisions of the Commissioner for purposes of review. 2 - OPINION AND ORDER Plaintiff was born July 27, 1976 and is a "younger individual" Plaintiff completed high school through grade 11. under the Act. Plaintiff has no past relevant work experience, and has worked only has Plaintiff janitor, a sporadically as diagnosed been and dishwasher, disorder, and polysubstance abuse. lumber mill. a at psychotic schizophrenia, with Plaintiff was hospitalized for Plaintiff was two weeks in March of 1996 for a psychotic break. incarcerated from 2004 to 2006, and has spent several periods in jail. THE ALJ'S DISABILITY ANALYSIS The Commissioner has a established sequential five-step process for determining whether a person is disabled. Yuckert, 137, U.S. 482 140 (1987); 20 C.F.R. §§ Bowen v. 404.1520(a), Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. See Valentine 416.920(b). v. Comm'r Soc. Sec. Tackett v. Apfel, five, the burden Admin., 574 F.3d 685, 180 F. 3d 1094, 1098 shifts to the (9th Cir. 689 (9th Cir. Commissioner to 1999). 2009); At step show that the claimant can do other work which exists in the national economy. Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). Because the same five-step process applies to plaintiff's claims for CDB, DIB and SSI, I have set forth the ALJ's relevant findings on all three applications below. 3 - OPINION AND ORDER Plaintiff turned 22 years old on July 27, 1998, and must 42 establish disability prior to that date to establish CDB. u.s.c. July 1, § Plaintiff is first insured for DIB coverage on 202(d). and acquired 1999, sufficient quarters of coverage to remain insured through June 30, 2001 ("date last insured"). to establish DIB benefits, prior to June 30, 2001. plaintiff must 42 U.S.C. § Thus, establish disability 416(I)(3); Burch v. Barnhart, 400 F. 3d 676, 679 (9th Cir. 2005). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since his alleged onset of disability. See 20 C.F.R. et seq. §§ 404.1520(b), 404.1571 et seq., 416.920(b), 416.971 With respect to CDB, the ALJ also found that plaintiff had not attained age 22 prior to the alleged onset of disability, and has not engaged in substantial gainful activity since the alleged onset of disability. 20 C.F.R. §§ 404.102, 404.350(a) (5). At step two, the ALJ found that plaintiff had the following severe impairments: as polysubstance schizophrenia or psychotic disorder, as well dependency (in remission) . See 20 C.F.R. §§ 404.1520 (c), 416.920 (c). At step three, the ALJ found that plaintiff's impairments, or combination of impairments did not meet or medically equal a listed impairment. See 20 C.F.R. 416.920(d), 416.925, 416.926. 4 - OPINION AND ORDER §§ 404.1520(d), 404.1525, 404.1526, The ALJ assessed plaintiff with a residual functional capacity (RFC) to perform a full range of work at all exertional levels, but with the following nonexertional limitations: due to his mental impairments he can perform unskilled work in a slower work pace setting that workers. does involve not See 20 C.F.R. At step four, §§ contact with the public or 404.1529, 416.927, 404.1527, co- 416.929. the ALJ found plaintiff unable to perform any See 20 C.F.R. past relevant work. §§ 404.1565, 416.965. At step five, the ALJ concluded that considering plaintiff's age, education, work experience, and residual functional capacity, jobs exist in significant numbers in the national economy that the See 20 C.F.R. claimant can perform. §§ 404.1560(c), 416.960(c), 416.966, 404.1569, 404.1569(a). 404.1566, Accordingly, the ALJ concluded that Plaintiff is not disabled under the meaning of the Act. ISSUES ON REVIEW On appeal to this court, plaintiff contends that the ALJ failed to properly analyze all of the medical evidence, including that of his treating physician, Joseph Arnold, M.D., and examining physicians Gregory A. Cole, Ph.D., Nick Dietlein, Psy.D., and Rory Richardson, Ph.D. Plaintiff alleges that the ALJ failed to give Dr. Arnold's opinion controlling weight and failed to incorporate all of the limitations Richardson into the RFC. 5 - OPINION AND ORDER described by Drs. Cole, Dietlein and Plaintiff also alleges the ALJ erred in favoring the opinions of nonexamining psychological consultants over the opinions of his treating and examining physicians. STANDARD OF REVIEW The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. § 405(g); Andrews, 53 F.3d at 1039. 42 u.s.c. "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a adequate to support a conclusion." 690. mind reasonable accept might Id.; Valentine, as 574 F. 3d at The court must weigh all the evidence, whether it supports or detracts from the Commissioner's decision. 807 F.2d 771, 772 (9th Cir. 1986). Martinez v. Heckler, The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one rational interpretation. Admin., 1039-40. Batson v. Comm'r of Soc. 359 F.3d 1190, 1193 (9th Cir. 2004); Andrews, Security 53 F.3d at If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001); Batson, 359 F.3d at 1193. Ill/ !Ill Ill/ !Ill 6 - OPINION AND ORDER DISCUSSION I. Medical Evidence. Standards . A. Disability opinions are reserved for the Commissioner. C.F.R. §§ 404.1527(e) (1), When 416.927(e) (1). making 20 that determination, the ALJ generally must accord greater weight to the opinion of physician. a treating physician than that of an examining Orn v. Astrue, 495 F. 3d 625, 631 (9th Cir. 2007). To reject the uncontroverted opinion of a treating physician, the ALJ must present clear and convincing reasons for doing so. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Rodriguez v. Bowen, 876 F.2d 759, 761-62 (9th Cir, 1989). If two opinions conflict, an ALJ must give "specific and legitimate reasons" for discrediting a treating physician in favor of an examining physician. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Lester v. An ALJ can meet this burden by providing a detailed summary of the facts and conflicting medical evidence, stating his own interpretation of that evidence, and making findings. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008); Carmickle v. Comm'r Soc. Security Admin., 533 F.3d 1155, 1164 (9th Cir. 2008); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989), When evaluating conflicting opinions, an ALJ is not required to accept an opinion that is not supported by clinical findings, or is brief or conclusory. 7 - OPINION AND ORDER Bayliss, 427 F.3d at 1216. B. Joseph Arnold, M.D. Plaintiff complains that the ALJ erred by failing to accord controlling weight to the opinion of his treating physician, In a Arnold. January 29, 2008 letter, Dr. Dr. Arnold stated that plaintiff has been under his care for approximately 10 years, that he has diagnosed plaintiff with chronic schizophrenia, characterized by "auditory hallucinations, delusional thoughts, and markedly disorganized behavior." that plaintiff's condition had (Tr. 472.) improved Dr. Arnold stated because he is more compliant with his medications, but that plaintiff's overall level of functioning "remains very low." Dr. Arnold provided the following limitations: I believe it would be impossible for him to deal with the public. He would have great difficulty carrying out even simple instructions on a sustained basis. Even minimal amounts of stress would exacerbate his symptoms . . . . Even with medications, however, his overall condition is tenuous, and it must again be emphasized that without the supportive and stable environment provided by his mother, he would not be able to function. I do not feel that [plaintiff] is capable of gainful employment. (Tr. 472.) The ALJ provided several reasons for rejecting Dr. Arnold's 2008 letter opinion. The ALJ noted that whether plaintiff was unable to work was question reserved to the Commissioner. C.F.R. §§ Arnold's 404.1527(d) (416.927(d). 2008 opinion 8 - OPINION AND ORDER was See 20 The ALJ also discussed that Dr. inconsistent with his subsequent treatment notes, and that the opinion conflicted with the opinions of examining physicians Drs. Cole and Dietlein. Plaintiff contends that the ALJ provided insufficient reasons for discounting Dr. Arnold's 2008 opinion, and failed to distinguish between the three separate claims for COB, DIB and SSI. Having carefully reviewed the medical record before me, I conclude that the ALJ's finding that Dr. Arnold's 2008 opinion is inconsistent with his subsequent treatment notes is not supported by substantial evidence. plaintiff's psychotic In the decisions, the ALJ indicates that symptoms are improved and under better control when he is taking his medications, and that plaintiff is stable as of July 2009. Reviewing those treatment notes, as well as all of Dr. Arnold's records in toto, it is clear that even if plaintiff's condition had improved, Dr. Arnold considered plaintiff's overall functioning quite low. Indeed, Dr. Arnold's treatment notes from 2007 to 2009 consistently reflect a GAF score of 25, indicating considerable or serious impairment. (Tr. 452, 453, 455, 458); American Psychiatric Ass'n Dignostic & Statistical Manual of Mental Disorders 34 ed. 2000, (4th text revision) (DSM-IV-TR) (defining GAF of 30 to 21 as "Behavior is considerably influenced by delusions or hallucination OR serious impairment in communication or judgment indicates ... OR inability to function in almost all areas.") While GAF scores alone are not determinative of the severity of mental impairments, 9 - OPINION AND ORDER Dr. Arnold's regular assignment of such a dramatically low GAF score is consistent with his opinion that he considered plaintiff to be "very low functioning," and plaintiff's condition "tenuous." Thus, contrary treatment to notes the ALJ' s consistent conclusion, with his incapable of full-time employment. I find Dr. opinion that Arnold's plaintiff is See Tushner v. Astrue, 2012 WL 1481493, *4 (D. Or. Apr. 27, 2012) (noting that GAF scores are not determinative of mental illness severity, and that ALJ's failure to discuss a GAF score by itself is not error). Plaintiff also submits that with respect to his claims for COB and DIB, Dr. Arnold's 2008 opinion is not relevant and the ALJ erred in considering it. I disagree. Medical evaluations made after an a claimant's insured status has expired are relevant to a claimant's pre-expiration condition. Taylor v. Cornrn' r of Soc. Security Admin., 659 F. 3d 1228, 1233 (9th Cir. 2011). And, absent from the ALJ' s COB and DIB decisions is a discussion of Dr. Arnold's records from April of 1996, when Dr. Arnold saw plaintiff three times following his discharge from the hospital for a psychotic break. believed that plaintiff On April 9, belonged in the 1996, hospital, Dr. Arnold and that plaintiff "gives the impression that without assistance he would not be able to function." (Tr. 331.) On April 18, 1996, Dr. Arnold noted that plaintiff was improving on medication, and that 10 - OPINION AND ORDER plaintiff ft[a]ttributes his psychosis to drugs," which plaintiff indicated he would avoid. 1 (Tr. 1035.) Medical opinions that pre-date the alleged onset of disability may be of limited relevance. Carmickle v. Comm'r of Soc. Security Admin., (9th Cir. 533 F.3d 1155, 1165 2008). However, in this case, Dr. Arnold served as plaintiff's treating physician and has a longitudinal history of plaintiff's mental illness. Additionally, Dr. Arnold's 1996 treatment notes are consistent with his 2008 opinion assistance. Thus, that plaintiff is Dr. unable Arnold's medical to function records without from 1996 are probative with respect to plaintiff's COB and DIB claims, and the ALJ erred in failing to discuss them. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (an ALJ is not required to discuss all evidence, but must explain why significant, probative evidence is rejected). Thus, I find that the ALJ's reasons for discounting Dr. Arnold's 2008 opinion are not supported by substantial evidence, and that the ALJ erred in failing to discuss all the relevant 1 The ALJ also did not discuss a June 5, 1996 evaluation by Bruce A. Bibby, a therapist from Polk County Mental Health, in which plaintiff admitted to hard use of drugs, but plaintiff claimed that he had been clean for 15 months. In that evaluation, plaintiff further admitted that he was abusing alcohol at that time. (Tr. 325-26.) As discussed later in this opinion, on remand, Bibby's opinion may be relevant to the evaluation of whether plaintiff's polysubstance abuse is contributing factor material to his disability. See Parra v. Astrue, 481 F.3d 742, 747-48 (9th Cir. 2007), cert. denied, 552 u.s. 1141 (2008). 11 - OPINION AND ORDER the Accordingly, evidence. ALJ' s assessment of Dr. Arnold's opinion is not sustained. Gregory A. Cole, Ph.D. C. On May 20, 2003, Dr. interview with plaintiff. Cole Dr. a conducted Cole found psychodiagnostic that plaintiff had difficulty in the areas of attention and concentration, had below average immediate memory capability, gave up easily on tasks, and exhibited problems following simple instructions. Significantly, Dr. Cole opined: it cannot be indicated that [plaintiff] could not work at all in some capacity; rather it is suggested that if [plaintiff] pursues a vocational placement in the near future, then he will need to be assigned to tasks which are considered to be low in stress, and where he is that presumed also is It supervised. closely [plaintiff's] psychological/behavioral deficits are such that he would be most successful in a structured workshop setting. Dr. Cole also recommended that someone else handle plaintiff's funds, and assigned a GAF of 45. concluded that Dr. Arnold's In the three decisions, the ALJ 2008 opinion that plaintiff cannot maintain full-time employment is contradicted by Dr. Cole's opinion that plaintiff is not precluded from all work. The ALJ gave Dr. Cole's opinion great weight, finding it consistent with the record as a whole, and by incorporating Dr. Cole's limitations into the RFC by limiting plaintiff to "unskilled work in a slower work pace setting." 12 - OPINION AND ORDER Plaintiff argues that the ALJ's RFC fails to incorporate all of the limitations described by Dr. Cole. the ALJ's conclusion, Dr. I agree. Contrary to Cole did not recommend that plaintiff seek vocational rehabilitation. Instead, Dr. Cole suggested that plaintiff needed close supervision in a low stress environment, and would be best setting." suited for I reject the reasonably ability to work in a Dr. does (9th Cir. 1988). ~structured Cole's limitations. workshop Indeed, highly structured environment, not substantial gainful activity. 667 in Commissioner's argument that the ALJ' s RFC incorporated sheltered workshop, placement establish the the such as a ability to perform See Gregory v. Bowen, 844 F.2d 664, Because the ALJ's RFC does not incorporate the limitations described by Dr. Cole, the ALJ's findings are not sustained. Thus, the ALJ's erroneous assessment of Dr. Cole's opinion cannot serve as a specific, legitimate reason to discount Dr. Arnold's opinion. D. Dr. Dietlein. The ALJ contradicted concluded that by Dietlein, Nick Dr. Arnold's opinion Psy.D., who psychodiagnostic interview on April 10, 2007. also conducted was a Dr. Dietlein noted that plaintiff denied any current use of drugs or alcohol, but plaintiff admitted that he used marijuana and methamphetamines a couple of time when he first got out of prison in 2006, but no longer does. Plaintiff also indicated that he had been using 13 - OPINION AND ORDER marijuana and methamphetamines for many years prior to 2004, but did not recall when he began using illicit substances. (Tr. 383.) Dr. Dietlein concluded that plaintiff had difficulty focusing, and had trouble and understanding remembering instructions. Dr. Dietlein observed that plaintiff would have difficulty engaging in social interactions at an acceptable level, and could not manage his own funds. Dr. Dietlein noted that plaintiff denied any current drug or alcohol abuse or use, but Dr. Dietlein questioned the veracity of plaintiff's report. 45. Dr. Deitlien assigned a GAF of The ALJ gave the opinion of Dr. incorporated Dr. Dietlein' s Dietlein great weight, functional limitations by and limiting plaintiff to no contact with the public or with co-workers. While I find that the ALJ's RFC accurately incorporates the functional limitations described by Dr. Dietlein, it is difficult to conclude that Dr. Dietlein's opinion is consistent with the medical record as a whole. As discussed elsewhere in this opinion, plaintiff's symptoms have varied in severity, with Drs. Arnold, Cole, and Anderson describing significantly greater limitations. E. Rory F. Richardson, Ph.D. Dr. Richardson performed a psychodiagnostic evaluation on July 7, 2001. (Tr. 311-313.) Dr. Richardson concurred with the diagnosis of schizophrenia, but recommended further psychological testing and an MMPI-2 to determine whether it is paranoid type or disorganized type. Dr. Richardson noted that plaintiff had a high level of 14 - OPINION AND ORDER Dr. Richardson's testing demonstrated that plaintiff was anxiety. but was able to perform basic math, interpret basic unable to Dr. Richardson recommended total abstinence from drugs proverbs. for six months prior to any further neurological testing to more what determine effectively plaintiff's functioning. impact drugs alcohol and have on Dr. Richardson also recommended someone else handle plaintiff's funds. In the decisions, the ALJ noted above, the and Dr. Richardson's finding that plaintiff's ability to concentrate and focus was substantially impaired. I find the ALJ's assessment of Dr. Richardson's opinion to be without error. Dr. Richardson did not provide more specific limitations than those provided for by the ALJ in the RFC. State Agency Nonexamining Psychologists. F. The Commissioner contends that the ALJ properly considered the assessments of the agency nonexamining psychologists, Drs. Anderson and Rethinger. On April 19, 2007, Dr. Anderson completed a Mental Residual Functional Capacity Assessment, purporting to cover from July of 1998 to the date of the evaluation, presumably relating to (Tr. plaintiff's SSI claim. 402-406.) Dr. Anderson opined that plaintiff was not significantly limited in his ability to remember simple instructions, did not need special supervision, moderately limited in his ability to remember, carry out detailed instructions, 15 - OPINION AND ORDER and maintain and was understand, and attention and Significantly, Dr. Anderson discussed (Tr. 402.) concentration. that plaintiff had a two-year period of very stable functioning when that detailed, Anderson However, (Tr. in prison and off all drugs. while under 406.) the influence of Dr. drugs, Based plaintiff's symptoms are quite severe and at listing level. on her review, Dr. Anderson determined that plaintiff met Listing 12. 03, abuse were a material but that drug and alcohol (Tr. 406.) contributing to his severe mental impairments. Anderson Dr. also Psychiatric completed factor Review Technique purporting to assess plaintiff's condition from July 1998 to June 30, 2001, his date last insured, presumably relating to plaintiff's CDB and DIB plaintiff's vague of denials drug Anderson Dr. 437-50.) (Tr. claims. alcohol and use, discussed that and plaintiff was in and out of jail several times in that time-frame. Dr. Anderson opined that plaintiff did not meet Listing 12.03, and determined that plaintiff was limited to simple Paul tasks. Rethinger, Ph.D., concurred in Dr. Anderson's opinions. (Tr. 427.) In the decisions, the ALJ gives the consulting psychologists' opinions great weight, and stating that the plaintiff capable of performing simple work, consultants found and finding their opinions consistent with the record as a whole. The ALJ's discussion of opinions is wholly inadequate. decisions, the ALJ does 16 - OPINION AND ORDER not the nonexamining psychologists' Despite issuing three separate differentiate Drs. Anderson and Rethinger's findings as they pertain to plaintiff's claims for CDB, DIB and SSI. Also, the ALJ completely fails to discuss Dr. Anderson's opinion that plaintiff's symptoms are at listing level, and that drug and alcohol abuse are contributing factors material to disability with respect to his SSI claim. discuss this significant, Vincent, 739 F.2d at 1394. probative The ALJ's failure to evidence is error. See I conclude that the ALJ's assessment of the nonexamining physicians opinions' in this regard is erroneous and cannot be sustained. Moreover, the ALJ's blanket statement that the nonexamining physicians' opinions are consistent with the record as a whole also fails to account for the fact that Drs. Anderson and Rethinger provided two very different opinions, which the ALJ failed to separately discuss. To summarize, in this case, the ALJ' s evaluation of the medical evidence was not supported by substantial evidence and cannot be sustained. legitimate properly reasons evaluate Rethinger. to the The ALJ discount opinions did not the opinion of Drs. provide of Cole, specific Dr. Arnold Anderson and or and The ALJ's assessment of the remaining medical opinions do not amount to substantial evidence given the other errors. See Ryan v. Comm'r of Soc. Security Admin., 528 F.3d 1194, 1201-02 (9th Cir. 2008). /Ill /Ill 17 - OPINION AND ORDER II. Remand. As discussed above, the ALJ's analysis of the opinions of Drs. Arnold, Cole, Rethinger and Anderson are erroneous for the reasons stated above. The ALJ's subsequent RFC assessment and hypothetical questions to the VE at step five therefore are not based upon the proper legal standards. The decision whether to remand for further proceedings or for an immediate payment of benefits is within the discretion of the court. v. Vasquez Astrue, 572 F.3d 586, 593 (9th Cir. 2009); Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000), cert. denied, 531 u.s. 1038 (2000). proceedings. where there The issue turns on the utility of further A remand for an award of benefits is appropriate is no useful purpose to be served by further proceedings or where the record is fully developed. The Ninth Circuit has established a three-part test "for determining when evidence should be credited and an immediate award of benefits directed." Harman, 211 F. 3d at 1178. The Court should grant an immediate award of benefits when: ( 1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Id. Where it is not clear that the ALJ would be required to award benefits were the improperly rejected evidence credited, the court 18 - OPINION AND ORDER has discretion whether to credit the evidence. Connett v. Barnhart, 340 F. 3d 871, 876 (9th Cir. 2003). In determining whether to award benefits or remand the matter for further "outstanding proceedings, issues the remain in court the must record." determine The whether Commissioner submits that outstanding issues exist which prevent an immediate award of benefits and I agree. In this case, when the evidence from Anderson and Rethinger is fully credited, under the Act for all three claims. Drs. Arnold, Cole, plaintiff is disabled With respect to plaintiff's claims for CDB and DIB, Dr. Arnold opined that plaintiff had been under his care for 10 years, and that plaintiff was very low functioning and couldn't survive without the assistance of his mother. (Tr. 472.) Dr. Arnold's treatment notes reflect that as far back as 1996, he held the same opinion of plaintiff. 31.) (Tr. 330- With respect to plaintiff's claim for SSI, Dr. Cole opined in 2003 that plaintiff would work best placed in a structured work environment, and Drs. Anderson and Rethinger opined that he met Listing 12.03 due to his schizophrenia. Additionally, plaintiff's counsel elicited testimony from the VE noting that plaintiff's need to be re-directed often and closely supervised suggests a sheltered work environment, as opposed to a (Tr. 100-01.) competitive work environment. Accordingly, when the opinions of Drs. Arnold, Cole 19 - OPINION AND ORDER and Anderson are fully credited, plaintiff is disabled under the Act on his claims for CDB, DIB and SSI. However, I cannot remand this case for an immediate payment of benefits because the record contains numerous plaintiff's drug and alcohol use and abuse. find plaintiff disabled, references to Here, the ALJ did not and thus did not reach the question of materiality concerning his drug and alcohol abuse. If a claimant is found to be disabled and the record includes evidence of drug or alcohol addiction, the ALJ must determine whether the addiction is a contributing disability. 742, 746-47 factor that 42 U.S.C. § is "material" to the (9th Cir. 2007), cert. denied, 552 U.S. 1141 (2008). the ALJ determined at Step Two that plaintiff's polysubstance abuse was in remission. determination claims. of 423(d) (2) (C); Parra v. Astrue, 481 F.3d In the instant case, claim, finding is not supported by substantial However, this evidence on any but particularly with respect to plaintiff's CDB and DIB To be sure, there is evidence from plaintiff treating and examining physicians expressing concern about plaintiff's drug and alcohol abuse dating October of 2007. from 1996 and (See Tr. 325, 462.) continuing at least until The records from Dr. Arnold about plaintiff's remission status suffer internal inconsistencies. For example, in 2007, Dr. remission status was unknown, Arnold indicated that yet in 2008 and 2009, plaintiff's Dr. Arnold reported that plaintiff had been in remission for four years. 20 - OPINION AND ORDER (Tr. 462, 458, 455.) To be sure, evaluations conducted in 1996, 2001, 2003, 2006, and 2007 indicate concerns about plaintiff's veracity about his reporting of drug and alcohol use and abuse. 315, 318-19, 326-27, 383-84, 419-20.) (See Tr. Accordingly, on remand, the ALJ is instructed to make a determination about whether plaintiff's drug and alcohol abuse is a contributing factor material to his disability, specifically as it pertains to his separate claims for CDB, DIB and SSI. CONCLUSION Based REVERSED, on and the this foregoing, case is the Commissioner's REMANDED for further decision proceedings consistent with this opinion. IT IS SO ORDERED. DATED this day of AUGUST, 2012. /?r~?&r~ Malcolm F. Marsh United States District Judge 21 - OPINION AND ORDER is
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