Shamah Moody v. Michael J. Astrue, No. 5:2008cv01607 - Document 20 (C.D. Cal. 2010)

Court Description: MEMORANDUM AND OPINION by Magistrate Judge Jacqueline Chooljian. For the foregoing reasons, the decision of the Commissioner of Social Security is affirmed. LET JUDGMENT BE ENTERED ACCORDINGLY. re: First MOTION for Summary Judgment as to Remand or Reversal 18 (vm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SHAMAH MOODY, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. CV 08-1607 JC ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) 18 19 I. On November 19, 2008, plaintiff Shamah Moody ( plaintiff ) filed a 20 21 22 23 Complaint seeking review of the Commissioner of Social Security s denial of plaintiff s application for benefits. The parties have filed a consent to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; November 25, 2008 Case Management Order ¶ 5. /// 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 ( ALJ ) are supported by substantial evidence and are free from material error.1 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On October 15, 2003, plaintiff filed applications for Supplemental Security 7 Income benefits and Disability Insurance Benefits. (Administrative Record 8 ( AR ) 13, 60-62). Plaintiff asserted that he2 became disabled on July 1, 2002, 9 due to severe manic depression, psychosis, memory loss, and anxiety attacks. (AR 10 84). An ALJ examined the record and heard testimony from plaintiff (who was 11 represented by counsel), medical expert Dr. Joseph Malancharuvil (who testified 12 telephonically), and a vocational expert on February 16, 2006 ( Pre-Remand 13 Hearing ). (AR 13, 323-60). 14 On April 27, 2006, the ALJ determined that plaintiff was not disabled 15 through the date of the decision ( Pre-Remand Decision ). (AR 13-19). The 16 Appeals Council denied plaintiff s application for review of the ALJ s Pre17 Remand Decision. (AR 5-9). 18 On September 12, 2007, this Court entered judgment reversing and 19 remanding the case for further proceedings because the articulated basis upon 20 which the ALJ discounted the opinion of plaintiff s treating physician was not 21 supported by substantial evidence. (AR 373, 375-76). The Appeals Council in 22 23 1 The harmless error rule applies to the review of administrative decisions regarding 24 disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 25 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social 26 27 28 Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of application of harmless error standard in social security cases). 2 Although Plaintiff s Motion indicates that plaintiff is female (Plaintiff s Motion at 2), the record reflects that plaintiff s middle name is David and that he is male. (See, e.g., AR 60 (Social Security Application referencing plaintiff s middle name]; AR 113-21 [Plaintiff s mother s function report in which plaintiff s mother refers to plaintiff as he and him ]). 2 1 turn remanded the case for a new hearing. (AR 387-88). On remand the ALJ 2 heard testimony from plaintiff (who again appeared with counsel), medical expert 3 Dr. William Soltz, and a vocational expert on April 7, 2008 ( Post-Remand 4 Hearing ). (AR 364, 568-98). 5 On July 22, 2008, the ALJ again determined that plaintiff was not disabled 6 through the date of the decision ( Post-Remand Decision ).3 (AR 13-19, 3647 370). The ALJ found, inter alia, that plaintiff was not disabled at any time 8 through the date of the decision. (AR 365, 370). Specifically, the ALJ found: 9 (1) plaintiff suffered from the following severe impairments: major depressive 10 disorder and polysubstance abuse (AR 366); (2) plaintiff s impairments or 11 combination of impairments, did not meet or medically equal one of the listed 12 impairments (AR 366-67); (3) plaintiff could perform a full range of work at all 13 exertional levels, but was limited to only moderately complex tasks up to 4 to 5 14 steps, should not work around dangerous machinery or in jobs that involve high 15 stress or the safety of others, and should avoid intense interaction with co-workers, 16 supervisors and the public (AR 367, 368); (4) plaintiff had no past relevant work 17 (AR 369); (5) there are jobs that exist in significant numbers in the national 18 economy that plaintiff could perform (AR 369-70); and (6) plaintiff s allegations 19 regarding his limitations were not credible (AR 368). 20 III. APPLICABLE LEGAL STANDARDS 21 A. 22 To qualify for disability benefits, a claimant must show that he is unable to Sequential Evaluation Process 23 engage in any substantial gainful activity by reason of a medically determinable 24 physical or mental impairment which can be expected to result in death or which 25 has lasted or can be expected to last for a continuous period of at least twelve 26 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 27 28 3 The ALJ stated that his April 27, 2006 decision was incorporated by reference into, and thus supplemented by, his July 22, 2008 decision. (AR 364). 3 1 § 423(d)(1)(A)). The impairment must render the claimant incapable of 2 performing the work he previously performed and incapable of performing any 3 other substantial gainful employment that exists in the national economy. Tackett 4 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 5 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 6 sequential evaluation process: 7 (1) 8 9 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant s alleged impairment sufficiently severe to limit 10 his ability to work? If not, the claimant is not disabled. If so, 11 proceed to step three. 12 (3) Does the claimant s impairment, or combination of 13 impairments, meet or equal an impairment listed in 20 C.F.R. 14 Part 404, Subpart P, Appendix 1? If so, the claimant is 15 disabled. If not, proceed to step four. 16 (4) Does the claimant possess the residual functional capacity to 17 perform his past relevant work? If so, the claimant is not 18 disabled. If not, proceed to step five. 19 (5) Does the claimant s residual functional capacity, when 20 considered with the claimant s age, education, and work 21 experience, allow him to adjust to other work that exists in 22 significant numbers in the national economy? If so, the 23 claimant is not disabled. If not, the claimant is disabled. 24 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 25 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 26 The claimant has the burden of proof at steps one through four, and the 27 Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 95328 /// 4 1 54 (citing Tackett); see also Burch, 400 F.3d at 679 (claimant carries initial burden 2 of proving disability). 3 In addition, a claimant who otherwise meets the definition of disability 4 under the Social Security Act is not eligible to receive disability benefits if drug 5 addiction or alcoholism is a contributing factor material to the determination of 6 disability. 20 C.F.R. §§ 404.1535(a), 416.935(a). Such claimant has the burden 7 to demonstrate that he would be disabled even if his substance abuse stopped. 8 Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007), cert. denied, 128 S. Ct. 1068 9 (2008). 10 B. 11 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 12 benefits only if it is not supported by substantial evidence or if it is based on legal 13 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 14 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 15 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 16 mind might accept as adequate to support a conclusion. Richardson v. Perales, 17 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 18 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 19 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 20 To determine whether substantial evidence supports a finding, a court must 21 consider the record as a whole, weighing both evidence that supports and 22 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 23 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 24 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 25 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 26 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 27 /// 28 /// 5 1 IV. DISCUSSION 2 A. The ALJ Properly Evaluated the Opinions of Plaintiff s Treating 3 Physician 4 1. 5 6 Pertinent Facts a. Opinions of Plaintiff s Treating Physician On February 15, 2006, plaintiff s treating physician at the Swift-Phoenix 7 Clinic, Dr. Gurmit Sekhon, completed a Mental Work Capacity Evaluation. 8 (AR 321-22). The Mental Work Capacity Evaluation stated in its instructions on 9 the first page: Please make your assessment apart from the effects of drug or 10 alcohol use or abuse. (AR 321) (emphasis in original). The Mental Work 11 Capacity Evaluation reflects that Dr. Sekhon: (i) diagnosed plaintiff with bipolar 12 disorder and schizoaffective disorder (AR 322); (ii) checked the boxes indicating 13 that plaintiff had severe limitations in his ability to: (a) perform activities within a 14 schedule, maintain regular attendance, and be punctual within customary 15 tolerances; (b) sustain an ordinary routine without supervision; (c) work in 16 coordination with or in proximity to others without being distracted by them; 17 (d) make simple work-related decisions; (e) interact appropriately with the general 18 public; (f) ask simple questions or request assistance; (g) accept instructions and 19 respond appropriately to criticism from supervisors; (h) get along with co-workers 20 or peers without distracting them or exhibiting behavioral extremes; (i) maintain 21 socially appropriate behavior and adhere to basic standards of neatness and 22 cleanliness; (j) respond appropriately to changes in the work setting; (k) be aware 23 of normal hazards and take appropriate precautions; and (l) set realistic goals or 24 make plans independently of others (AR 321-22); (iii) checked the box indicating 25 that plaintiff had marked limitations in his ability to: (a) remember locations and 26 work-like procedures; (b) understand and remember very short and simple 27 instructions; and (c) maintain attention and concentration for extended periods 28 (AR 321); (iv) checked the box indicating that plaintiff had moderate limitations 6 1 in his ability to carry out very simple and short instructions (AR 321); (v) checked 2 the box indicating that plaintiff was not a malingerer (AR 322); (vi) checked the 3 box indicating that plaintiff s impairment lasted or could be expected to last at 4 least twelve months (AR 322); and (vii) checked the box indicating that plaintiff 5 would be expected to miss work at least three times a month. (AR 322). 6 The record contains outpatient notes from the Swift-Phoenix Clinic 7 concerning plaintiff s ongoing psychiatric treatment by Dr. Sekhon and other 8 treating medical personnel. (AR 270-79, 281-91, 293-99, 301-19, 412-13, 443-53, 9 455-56, 464-68, 470-72, 479-84, 487-501).4 The notes span the time period of 10 February 18, 2004 to January 25, 2008, and reflect that plaintiff met with a 11 physician approximately once a month. (AR 270-79, 281-91, 293-99, 301-19, 12 412-13, 443-53, 455-56, 464-68, 470-72, 479-84, 487-501). 13 b. 14 Other Pertinent Medical Opinion Evidence On February 5, 2004, Dr. K. Gregg, a non-examining consultative 15 physician, completed a Psychiatric Review Technique form. (AR 198-214). Dr. 16 Gregg concluded, in pertinent part, that plaintiff s medical records revealed no 17 evidence of cognitive defects, but that plaintiff was limited in his ability to interact 18 with the public. (AR 214). 19 On October 6, 2006, Dr. Linda Smith, an examining consultative 20 psychiatrist, conducted a complete psychiatric evaluation of plaintiff. (AR 41421 22). Dr. Smith found, in pertinent part, that there was no evidence at all of 22 plaintiff s claimed mental impairments, that plaintiff was not credible, and that 23 plaintiff was not limited in his ability to work. (AR 421). Dr. Smith stated that 24 plaintiff s previous psychological problems were likely due to plaintiff s drug use, 25 which plaintiff claimed he had discontinued. (AR 421). 26 27 4 The Administrative Record contains duplicate copies of medical reports from the Swift- 28 Phoenix Clinic. (AR 270-74, 276, 278-79, 296-99, 307-19, 464, 470, 472, 481, 487-90, 493501). 7 1 On October 18, 2006, Dr. H. Amado, a non-examining consultative 2 physician, completed a Psychiatric Review Technique form (AR 424-35), and a 3 related Mental Residual Functional Capacity Assessment (AR 436-38). Dr. 4 Amado concluded, in pertinent part, that plaintiff had a medically determinable 5 impairment of polysubstance abuse, but stated that he was unable to tell whether it 6 was in remission given that plaintiff s records showed plaintiff had a history of 7 drug use, yet plaintiff denied drug use when Dr. Smith examined him. (AR 430). 8 Dr. Amado s Mental Residual Functional Capacity Assessment showed plaintiff 9 had moderate limitations in his ability to understand, remember, and carry out 10 detailed instructions, but otherwise had no other significant mental limitations. 11 (AR 436-38). 12 13 c. Plaintiff s Pertinent Testimony At the Pre-Remand Hearing, plaintiff testified to the following: He rarely 14 drank alcohol. He did not use marijuana often. He had last used 15 methamphetamine in 2003. His doctor had not told plaintiff it was acceptable to 16 drink while taking his prescribed medication. Plaintiff saw Dr. Sekhon5 every four 17 to five weeks. Plaintiff told Dr. Sekhon that he drank once in a while and smoked 18 marijuana, but the doctor didn t suggest it. (AR 331-32, 336, 338). 19 At the Post-Remand hearing, plaintiff testified to the following: He then 20 drank alcohol three to four times a week to the point of becoming drunk, and then 21 used methamphetamine two or three times a week. (AR 579). Since July 2002, he 22 had not remained off all drugs or alcohol for more than a six month continuous 23 period of time. (AR 592). 24 25 d. Medical Expert Testimony At the Post-Remand Hearing, the ALJ called William Soltz, Ph.D. to testify 26 as a medical expert with respect to plaintiff s mental impairments. (AR 364, 368, 27 28 5 The transcript of the Pre-Remand Hearing incorrectly reflects that plaintiff s treating physician s name is spelled Dr. Chicon. (AR 333). 8 1 573-89). Dr. Soltz thoroughly reviewed plaintiff s psychological records and 2 questioned plaintiff about his drug and alcohol use. (AR 573-77). In light of 3 plaintiff s testimony and the medical evidence in the record, Dr. Soltz opined: 4 Plaintiff had medically determinable psychological impairments of depressive 5 disorder and polysubstance abuse. (AR 577, 579). Due to the combined effects of 6 plaintiff s two impairments, plaintiff (i) should not work around heights, 7 dangerous equipment, automobiles or similar hazards, or in jobs where the security 8 of others is involved (AR 581, 584-85); (ii) should not work in high stress 9 positions (e.g. armed security, bill collector) (AR 581, 585); (iii) could perform 10 only moderately complex tasks up to four to five steps (AR 585); and (iv) should 11 avoid intense interaction with co-workers, supervisors and the public (AR 585). 12 Dr. Soltz further opined: It was very difficult accurately to discern whether 13 plaintiff s functional limitations were due primarily to one or both of plaintiff s 14 medically determinable impairments. (AR 577-79). Optimally a person should be 15 allowed to detoxify from alcohol and drugs for at least nine months before an 16 accurate diagnosis of any underlying psychological condition could be made apart 17 from symptoms related to substance abuse. (AR 578, 581). Here, although there 18 were intermittent periods during which plaintiff had stopped using drugs and 19 alcohol, no such period had lasted longer than seven months. (AR 580-81). The 20 record did, however, reflect that when plaintiff reduced his drug and alcohol use, 21 plaintiff s symptoms improved. (AR 580). Thus, based on the existing records, 22 plaintiff s substance abuse likely was the primary cause of plaintiff s depressive 23 disorder and any hallucinations and paranoia plaintiff may have experienced, and 24 plaintiff s participation in a substance abuse program could eliminate 50 to 75 25 percent of his functional limitations pathology. 6 (AR 577-78, 582, 587). 26 27 6 Dr. Soltz also testified: When a person has not sufficiently detoxified, the most 28 common cause of depression is drug and/or alcohol use. (AR 578). Heavy abuse of alcohol and drugs mimic a major depressive type disorder. Methamphetamine use could cause both hallucinations and delusions. (AR 577, 582). 9 1 Dr. Soltz further testified: The severe functional limitations stated in Dr. 2 Sekhon s opinions were unsupported by any other medical evidence in the record. 3 (AR 580-83). However, Dr. Soltz was unable to tell whether Dr. Sekhon s own 4 examinations of plaintiff supported such substantial limitations, since Dr. 5 Sekhon s treatment notes were mostly unintelligible. (AR 581-82, 588-89). 6 While Dr. Sekhon s opinions could be correct, Dr. Soltz did not believe they were. 7 (AR 581, 588). 8 9 e. ALJ s Residual Functional Capacity Assessment In the Post-Remand Decision, the ALJ summarized the medical evaluations, 10 the treatment records and the testimony of plaintiff and medical expert Dr. Soltz, 11 and gave careful consideration [to] the entire record. (AR 367-69). As noted 12 above, the ALJ determined that, even when accounting for the effects of plaintiff s 13 drug and alcohol use, plaintiff had the residual functional capacity to perform a 14 full range of work at all exertional levels, but was limited to only moderately 15 complex tasks up to 4 to 5 steps, should not work around dangerous machinery, or 16 in jobs that involve high stress or the safety of others, and should avoid intense 17 interaction with co-workers, supervisors and the public. (AR 367). The ALJ 18 based his residual functional capacity assessment on, inter alia, Dr. Soltz s 19 testimony regarding plaintiff s functional limitations, and plaintiff s own 20 testimony regarding his drug and alcohol use. (AR 368). 21 The ALJ rejected almost all of the opinions expressed in Dr. Sekhon s 22 Mental Work Capacity Evaluation of plaintiff, giving the following reasons: 23 Regarding Exhibit 10F [AR 320-22], Dr. Sekhom s evaluation 24 indicates [plaintiff] is extremely limited in almost all activities 25 although he noted [plaintiff] is only moderately limited in his ability 26 to carry out short and simple instructions. There is virtually no 27 evidence in the record to support this evaluation. Granted, Dr. 28 Sekhom s records are unreadable, but there is no treatment found for 10 1 drug/alcohol abuse, indicating that [plaintiff] did not admit drug use. 2 At the hearing, [plaintiff] admitted drug use throughout the relevant 3 period. Social Security disability [] claimants have the burden of 4 proving disability and [plaintiff] bears the burden of proving that drug 5 or alcohol addiction is not a contributing factor material to his 6 disability. 7 (AR 369). 8 9 2. Pertinent Law In Social Security cases, courts employ a hierarchy of deference to medical 10 opinions depending on the nature of the services provided. Courts distinguish 11 among the opinions of three types of physicians: those who treat the claimant 12 ( treating physicians ) and two categories of nontreating physicians, namely 13 those who examine but do not treat the claimant ( examining physicians ) and 14 those who neither examine nor treat the claimant ( nonexamining physicians ). 15 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), as amended (9th Cir. 1996) 16 (footnote reference omitted). A treating physician s opinion is entitled to more 17 weight than an examining physician s opinion, and an examining physician s 18 opinion is entitled to more weight than a nonexamining physician s opinion.7 See 19 id. In general, the opinion of a treating physician is entitled to greater weight than 20 that of a non-treating physician because the treating physician is employed to 21 cure and has a greater opportunity to know and observe the patient as an 22 individual. Morgan v. Commissioner of Social Security Administration, 169 23 F.3d 595, 600 (9th Cir. 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th 24 Cir. 1987)). 25 26 27 28 7 Cf. Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (not necessary or practical to draw bright line distinguishing treating physicians from non-treating physicians; relationship is better viewed as series of points on a continuum reflecting the duration of the treatment relationship and frequency and nature of the contact) (citation omitted). 11 1 The treating physician s opinion is not, however, necessarily conclusive as 2 to either a physical condition or the ultimate issue of disability. Magallanes v. 3 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 4 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician s opinion is not 5 contradicted by another doctor, it may be rejected only for clear and convincing 6 reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal 7 quotations omitted). The ALJ can reject the opinion of a treating physician in 8 favor of a conflicting opinion of another examining physician if the ALJ makes 9 findings setting forth specific, legitimate reasons for doing so that are based on 10 substantial evidence in the record. Id. (citation and internal quotations omitted); 11 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by 12 setting out detailed and thorough summary of facts and conflicting clinical 13 evidence, stating his interpretation thereof, and making findings) (citations and 14 quotations omitted); Magallanes, 881 F.2d at 751, 755 (same; ALJ need not recite 15 magic words to reject a treating physician opinion court may draw specific and 16 legitimate inferences from ALJ s opinion). The ALJ must do more than offer his 17 conclusions. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). He must 18 set forth his own interpretations and explain why they, rather than the 19 [physician s], are correct. Id. Broad and vague reasons for rejecting the 20 treating physician s opinion do not suffice. McAllister v. Sullivan, 888 F.2d 599, 21 602 (9th Cir. 1989). 22 When they are properly supported, the opinions of physicians other than 23 treating physicians, such as examining physicians and non-examining medical 24 experts, may constitute substantial evidence upon which an ALJ may rely. See, 25 e.g., Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (consultative 26 examiner s opinion on its own constituted substantial evidence, because it rested 27 on independent examination of claimant); Morgan, 169 F.3d at 600 (testifying 28 medical expert opinions may serve as substantial evidence when they are 12 1 supported by other evidence in the record and are consistent with it ). Where, as 2 here, a conflict exists between the assessment of a non-examining, testifying 3 physician based on objective clinical findings and the assessment of a treating 4 physician, the non-examining physician s opinion may itself constitute substantial 5 evidence warranting rejection of the treating doctor s opinion, and it is the sole 6 province of the ALJ to resolve the conflict. Morgan, 169 F.3d at 600; Andrews v. 7 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 8 9 3. Analysis Plaintiff contends that the ALJ failed adequately to consider the opinions 10 expressed in Dr. Sekhon s Mental Work Capacity Evaluation. (Plaintiff s Motion 11 at 3-6). More specifically, plaintiff alleges that the ALJ inadequately addressed 12 and/or ignored evidence that Dr. Sekhon reached his opinions without including 13 the effects of plaintiff s substance abuse. (Plaintiff s Motion at 5-6). This Court 14 concludes that the ALJ did not materially err in evaluating the record medical 15 evidence. 16 First, the ALJ properly discredited Dr. Sekhon s opinions as unsupported by 17 the record as a whole. Batson v. Commissioner of Social Security Administration, 18 359 F.3d 1190, 1195 (9th Cir. 2004). Dr. Sekhon diagnosed plaintiff with bipolar 19 disorder and schizoaffective disorder and concluded that plaintiff was severely 20 limited in almost all ability to function in a work environment. (AR 321-22). As 21 the ALJ correctly noted, however, no medical evidence in the record supports such 22 significant functional limitations. Dr. Soltz testified that he also found no support 23 in the record for the treating physician s limitations, even when symptoms related 24 to plaintiff s drug and alcohol use were considered. (AR 577-88). Other medical 25 opinion evidence in the record is in accord with Dr. Soltz s findings. (AR 214, 26 421, 436-38). Dr. Soltz s assessment, supported by and consistent with the bulk of 27 plaintiff s medical evidence, constitutes substantial evidence in support of the 28 /// 13 1 ALJ s decision to reject Dr. Sekhon s conflicting opinions. Morgan, 169 F.3d at 2 600. 3 Second, even though the Mental Work Capacity Evaluation form completed 4 by Dr. Sekhon instructed him to make an assessment apart from the effects of drug 5 or alcohol use or abuse, this Court concludes based on the current record, and 6 particularly plaintiff s testimony at the Post-Remand Hearing regarding his 7 alcohol and drug use, that the ALJ did not materially err in rejecting Dr. Sekhon s 8 opinions, as the record does not reflect that Dr. Sekhon was ever aware of the 9 extent of plaintiff s drug and alcohol use and abuse and thus in a position to 10 discount such use and abuse in making an assessment as the form instructed. The 11 record reflects that plaintiff has a significant history of drug and alcohol use. (AR 12 368, 417-18, 430, 573-76). Dr. Soltz testified that plaintiff likely had not been 13 candid with medical personnel about the true extent of his drug and alcohol use, 14 since none of plaintiff s medical records including those from other physicians at 15 the Swift-Phoenix clinic where Dr. Sekhon practiced reflects that plaintiff had 16 ever been referred for substance abuse treatment. (AR 586). Similarly, Dr. 17 Sekhon s failure to diagnose plaintiff with substance abuse suggests that plaintiff 18 had not been candid with his treating physician about the magnitude of his drug 19 and alcohol use. (AR 587). In fact, plaintiff s testimony suggests that plaintiff 20 admitted to Dr. Sekhon only nominal drug and alcohol use. (AR 331-32, 336, 21 338). Accordingly, this Court now concludes that the ALJ reasonably inferred that 22 Dr. Sekhon was unaware of the extent of plaintiff s drug use, and thus could not 23 have rendered his opinions apart from the effects of plaintiff s drug or alcohol use 24 on plaintiff s ability to work despite the instructions on the form to do so. 25 Accordingly, the ALJ s rejection of Dr. Sekhon s opinions is supported by 26 substantial evidence and is free from material error. 27 /// 28 /// 14 1 B. 2 Plaintiff contends that the ALJ failed properly to develop the record by The ALJ Did Not Materially Err in Developing the Record 3 declining plaintiff s request for an orthopedic consultative examination of his 4 ankle. (Plaintiff s Motion at 6). The Court finds harmless any error in the ALJ s 5 decision to decline plaintiff s request. 6 7 1. Pertinent Facts At the Post-Remand Hearing, plaintiff stated that ten months earlier he had 8 sustained a minor break in his right ankle which had subsequently become 9 infected. (AR 572). At the end of such hearing, plaintiff s attorney asked the ALJ 10 to order an orthopedic consultative examination, stating that plaintiff s injury and 11 confinement to a wheelchair could be probative of disability. (AR 596). The ALJ 12 declined the request, and instead asked the vocational expert to testify to whether 13 plaintiff s confinement to a wheelchair changed the expert s earlier conclusion 14 that jobs existed in significant numbers in the national economy which plaintiff 15 could do. (AR 596-97). The vocational expert testified that it did not. (AR 59616 97). 17 In his Post-Remand Decision, the ALJ stated that he had declined plaintiff s 18 request for a consultative examination due to the lack of objective evidence. 19 (AR 368-69). The ALJ noted that there was no evidence in the record of 20 [plaintiff s] break or of the prescription for a wheelchair. (AR 368). The ALJ 21 also stated that medical records submitted at the hearing reflected that plaintiff had 22 undergone ankle surgery on June 5, 2007, but that subsequent x-rays showed that 23 plaintiff s condition was stable. (AR 369) (citing Ex. 19F [AR 541]). The ALJ 24 rejected plaintiff s suggestion that plaintiff met listings 1.02A or 1.03, stating that 25 the evidence did not support such a finding or a finding that any impairment could 26 be expected to last more than 12 months. (AR 369). 27 /// 28 /// 15 1 2 2. Pertinent Law Although plaintiff bears the burden of proving disability, the ALJ has an 3 affirmative duty to assist the claimant in developing the record when there is 4 ambiguous evidence or when the record is inadequate to allow for proper 5 evaluation of the evidence. Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 6 2001) (citation omitted); Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 7 2001); see also Webb, 433 F.3d at 687 (ALJ has special duty fully and fairly to 8 develop record and to assure that claimant s interests are considered). Where it is 9 necessary to enable the ALJ to resolve an issue of disability, the duty to develop 10 the record may require consulting a medical expert or ordering a consultative 11 examination. See 20 C.F.R. §§ 404.1519a, 416.919a; see, e.g., Armstrong v. 12 Commissioner of Social Security Administration, 160 F.3d 587, 590 (9th Cir. 13 1998) (where there were diagnoses of mental disorders prior to the date of 14 disability found by the ALJ, and evidence of those disorders even prior to the 15 diagnoses, the ALJ was required to call a medical expert to assist in determining 16 when the plaintiff s impairments became disabling). 17 The ALJ is not obliged to undertake the independent exploration of every 18 conceivable condition or impairment a claimant might assert. Therefore, an ALJ 19 does not fail in his duty to develop the record by not seeking evidence or ordering 20 further examination or consultation regarding a physical or mental impairment if 21 no medical evidence indicates that such an impairment exists. See Breen v. 22 Callahan, 1998 WL 272998, at *3 (N.D. Cal. May 22, 1998) (noting that, in the 23 Ninth Circuit, the ALJ s obligation to develop the record is triggered by the 24 presence of some objective evidence in the record suggesting the existence of a 25 condition which could have a material impact on the disability decision ) (citing 26 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); Wainwright v. Secretary of 27 Health and Human Services, 939 F.2d 680, 682 (9th Cir. 1991)); see also Pearson 28 v. Bowen, 866 F.2d 809, 812 (5th Cir. 1989) (requiring that claimant must raise a 16 1 suspicion concerning such an impairment before ALJ is required to discharge 2 duty of full inquiry by ordering a consultative examination). 3 4 3. Analysis The Court rejects plaintiff s contention that the ALJ s decision to decline 5 plaintiff s request for a consultative examination warrants a reversal or remand. 6 First, plaintiff was obligated to provide the ALJ with some objective 7 medical evidence of a condition which could have a material impact on the ALJ s 8 disability decision. Breen, 1998 WL 272998, at *3. However, as reflected in the 9 Post-Remand Decision, the ALJ reviewed the medical records plaintiff submitted 10 at the hearing and concluded that there was no objective evidence that plaintiff 11 continued to suffer from an ankle break, that he had a prescription for a 12 wheelchair, or that any impairment from the alleged injury would last more than 13 twelve months. (AR 368-69). Plaintiff fails to point to any objective evidence in 14 the record to suggest the contrary. In fact, plaintiff appears to concede as much, 15 stating: [T]he purpose for a consultative examination was to provide objective 16 evidence regarding [plaintiff s] ankle break and the prescription for a wheelchair. 17 (Plaintiff s Motion at 7 (emphasis added)). Absent such objective evidence, 18 however, the ALJ had no duty to order a consultative examination for plaintiff at 19 government expense. See Diaz v. Secretary of Health and Human Services, 898 20 F.2d 774, 778 (10th Cir. 1990) (ALJ has broad discretion to deny request for 21 consultative examination where claimant fails to present objective evidence 22 supporting claimed impairment); see also Reed v. Massanari, 270 F.3d 838, 842 23 (9th Cir. 2001) ( The government is not required to bear the expense of [a 24 consultative] examination for every claimant) (citing id.; 20 C.F.R. 25 §§ 404.1517-1519t, 416.917-919t); Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir. 26 1991) (decision to order consultative examination rests within ALJ s discretion) 27 (citation omitted). 28 /// 17 1 Second, the decision to call a medical expert for additional evidence on the 2 nature and severity of impairments is required only [w]hen . . . in the opinion of 3 the [ALJ] or the Appeals Council the symptoms, signs and laboratory findings 4 reported in the case record suggest that a judgment of equivalence may be 5 reasonable. SSR 96-6p. Here, the ALJ reasonably determined that the medical 6 records did not suggest that plaintiff s ankle injury met a Listing, and plaintiff 7 offers no plausible theory of equivalency. See Sullivan v. Zebly, 493 U.S. 521, 8 530-31 (1990) (For a claimant to show that his impairment matches [or is 9 equivalent to] a listing, it must meet all of the specified medical criteria [of the 10 listed impairment]. ). 11 Finally, even assuming, arguendo, that the ALJ s decision not to order a 12 consultative examination was erroneous, any such error was harmless. The 13 vocational expert testified that there were still jobs that existed in significant 14 numbers in the national economy that plaintiff could perform even assuming he 15 was confined to a wheelchair. (AR 596-97). 16 In light of the foregoing, a remand or reversal on this basis is not warranted. 17 C. 18 19 The ALJ Properly Evaluated Plaintiff s Credibility 1. Additional Pertinent Facts In written statements submitted in support of his application for benefits, 20 plaintiff stated: He had difficulty sleeping and concentrating, was restless, 21 suffered from anxiety attacks, paranoia, depression, psychosis, and had memory 22 loss. (AR 78, 82, 84, 105-11, 122, 126, 128-29). 23 At the Pre-Remand Hearing, plaintiff testified that he had experienced 24 auditory hallucinations. (AR 349-51). 25 In his written decisions, the ALJ noted that plaintiff s symptoms included 26 hallucinations, psychosis, confusion and depression. (AR 14, 368). The ALJ 27 found that plaintiff s medically determinable impairments could reasonably be 28 expected to produce such symptoms, but determined that plaintiff s statements 18 1 concerning the intensity, persistence and limiting effects of his subjective 2 complaints were not credible. (AR 15, 368). The ALJ provided three reasons for 3 discounting plaintiff s subjective complaints. 4 First, the ALJ pointed out that plaintiff s subjective complaints were 5 inconsistent with plaintiff s failure to seek treatment for his substance abuse. 6 Specifically, the ALJ stated: 7 Any attempt to dismiss [plaintiff s] history of substance abuse as self 8 medication for his mental illness does not negate the fact that 9 [plaintiff] continued to engage in substance abuse. There is evidence 10 of continued substance abuse up to the present. It is reasonable to 11 assume that were [plaintiff] suffering from the disabling mental 12 problems alleged, he would stop substance abuse and he would 13 receive ongoing, aggressive substance rehabilitation. 14 (AR 15). 15 Second, the ALJ noted several occasions when plaintiff gave conflicting 16 statements regarding his drug and alcohol use. (AR 368). Specifically, the ALJ 17 stated the following about plaintiff s answers to the medical expert s questions at 18 the Post-Remand Hearing: 19 At the hearing, . . . [plaintiff] stated that he last used drugs in 20 2002 and in 2003 he used methamphetamine. At the time he started 21 on Seroquel and has not used since. Then, [plaintiff] testified he last 22 used drugs on January 16, 2004, was using drugs in 2004, and in 23 2005 there is a blood test lab result that shows drug use. He stated he 24 still uses drugs when he gets flustered and when his meds are not 25 working which happens 3 or 4 times a week. The medical expert 26 noted that on October 6, 2006, [plaintiff] reported to [] Dr. Smith at a 27 psychiatric evaluation that he was drinking up to 24 ounces of malt 28 liquor about 3 times a week. He said he used to drink more but had 19 1 decreased drinking in 2003. His last drink was the previous night 2 (see Exhibit 11F p.4) [AR 417]. [Plaintiff] admitted at the hearing 3 that he did drink 3 times a week but not so much anymore. He stated 4 that . . . when his medication was not working he used drugs and 5 alcohol. 6 (AR 368). 7 Finally, the ALJ cited plaintiff s poor work history as evidence of plaintiff s 8 lack of credibility: I note that [plaintiff] has not performed any substantial 9 gainful activity in the past 15 years. This lack of work history indicates that 10 [plaintiff s] pursuit of disability status may be motivated by a desire to finance his 11 chosen lifestyle, rather than motivated by an actual disability. (AR 15) 12 13 2. Pertinent Law An ALJ is not required to believe every allegation of disabling pain or other 14 non-exertional impairment. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) 15 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). If the record establishes 16 the existence of a medically determinable impairment that could reasonably give 17 rise to symptoms assertedly suffered by a claimant, an ALJ must make a finding as 18 to the credibility of the claimant s statements about the symptoms and their 19 functional effect. Robbins, 466 F.3d 880 at 883 (citations omitted). Where the 20 record includes objective medical evidence that the claimant suffers from an 21 impairment that could reasonably produce the symptoms of which the claimant 22 complains, an adverse credibility finding must be based on clear and convincing 23 reasons. Carmickle v. Commissioner, Social Security Administration, 533 F.3d 24 1155, 1160 (9th Cir. 2008) (citations omitted). The only time this standard does 25 not apply is when there is affirmative evidence of malingering. Id. The ALJ s 26 credibility findings must be sufficiently specific to allow a reviewing court to 27 conclude the ALJ rejected the claimant s testimony on permissible grounds and 28 /// 20 1 did not arbitrarily discredit the claimant s testimony. Moisa v. Barnhart, 367 2 F.3d 882, 885 (9th Cir. 2004). 3 To find the claimant not credible, an ALJ must rely either on reasons 4 unrelated to the subjective testimony (e.g., reputation for dishonesty), internal 5 contradictions in the testimony, or conflicts between the claimant s testimony and 6 the claimant s conduct (e.g., daily activities, work record, unexplained or 7 inadequately explained failure to seek treatment or to follow prescribed course of 8 treatment). Orn, 495 F.3d at 636; Robbins, 466 F.3d at 883; Burch, 400 F.3d at 9 680-81; SSR 96-7p. Although an ALJ may not disregard such claimant s 10 testimony solely because it is not substantiated affirmatively by objective medical 11 evidence, the lack of medical evidence is a factor that the ALJ can consider in his 12 credibility assessment. Burch, 400 F.3d at 681. 13 Questions of credibility and resolutions of conflicts in the testimony are 14 functions solely of the Commissioner. Greger v. Barnhart, 464 F.3d 968, 972 (9th 15 Cir. 2006). If the ALJ s interpretation of the claimant s testimony is reasonable 16 and is supported by substantial evidence, it is not the court s role to 17 second-guess it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 18 19 3. Analysis Plaintiff contends that the ALJ improperly evaluated his credibility. 20 (Plaintiff s Motion at 8-10). The Court concludes that the ALJ stated clear and 21 convincing reasons for discounting plaintiff s statements which are supported by 22 substantial evidence. Accordingly, a reversal or remand based upon the ALJ s 23 assessment of plaintiff s credibility is not warranted. 24 First, the ALJ reasonably discredited plaintiff s subjective complaints as 25 inconsistent with the level of treatment he received. The ALJ noted that plaintiff 26 had a significant history of drug and alcohol use, and plaintiff himself testified that 27 he had been unable to remain clean and sober for more than four or five months at 28 21 1 a time, yet plaintiff sought no treatment for drug or alcohol abuse.8 (AR 368). 2 The medical expert testified that (i) plaintiff s subjective symptoms were most 3 accurately attributed to plaintiff s substance abuse (AR 577-78, 582, 587); 4 (ii) evidence in the record reflects that when plaintiff reduced his drug and alcohol 5 use, plaintiff s symptoms improved (AR 580); (iii) plaintiff needed to be in a 6 substance abuse program to address those symptoms (AR 587); and (iv) plaintiff 7 had received no such treatment (AR 586). It was reasonable for the ALJ to infer 8 that if plaintiff s mental problems were as severe as he expressed, he would have 9 sought and been prescribed substance abuse treatment. In assessing credibility, 10 the ALJ may properly rely on plaintiff s unexplained failure to request treatment 11 consistent with the alleged severity of his symptoms. Bunnell v. Sullivan, 947 12 F.2d 341, 346 (9th Cir. 1991) (en banc) (ALJ may discredit plaintiff s subjective 13 complaints based on unexplained, or inadequately explained, failure to seek 14 treatment or follow a prescribed course of treatment. ) (citation omitted); Tidwell 15 v. Apfel, 161 F.3d 599, 602 (9th Cir. 1999) (lack of treatment and reliance upon 16 nonprescription pain medication clear and convincing reasons for partially 17 rejecting [claimant s] pain testimony ); cf. Wodtli v. Astrue, 2008 WL 4104216, 18 at *6 (N.D. Cal. Sept. 2, 2008) (ALJ properly discredited plaintiff s testimony in 19 light of plaintiff s failure to follow doctor s instruction to discontinue using 20 alcohol). 21 Second, the ALJ could properly discredit plaintiff s subjective complaints 22 due to plaintiff s conflicting statements and testimony regarding his drug and 23 alcohol use. See Light v. Social Security Administration, 119 F.3d 789, 792 (9th 24 Cir.), as amended (1997) (in weighing plaintiff s credibility, ALJ may consider 25 inconsistencies either in [plaintiff s] testimony or between his testimony and his 26 conduct ); see also Fair, 885 F.2d at 604 n.5 (9th Cir.1989) (ALJ can reject pain 27 28 8 Plaintiff also testified that he did not attend meetings of Alcoholics Anonymous or Narcotics Anonymous. (AR 333). 22 1 testimony based on contradictions in plaintiff s testimony). At the Post-Remand 2 Hearing, plaintiff testified that he had had a significant problem with 3 methamphetamine in 2002 and 2003, but after being placed on medication, he had 4 stopped using the drug. (AR 573-74). However, upon further questioning by the 5 medical expert, plaintiff testified that he had actually stopped using 6 methamphetamine and marijuana by the end of 2004. (AR 574). When confronted 7 with a blood test that showed that he had used drugs in 2005, plaintiff admitted 8 that he had been using drugs and alcohol through the date of the hearing. (AR 9 575). Plaintiff testified that he used methamphetamine three or four times a 10 week, and drank alcohol three times a week until [he was] drunk. (AR 575). 11 In addition, plaintiff told Dr. Smith that he drank less than 24-ounces of malt 12 liquor about three times a week, that he smoked marijuana a little bit, and did 13 not use any other drugs at that time, even though his testimony indicates 14 otherwise. (AR 368). The ALJ properly discounted plaintiff s subjective 15 complaints due to plaintiff s obvious lack of candor regarding his drug and alcohol 16 use. See Thomas, 278 F.3d at 959 (holding that the ALJ did not err in using the 17 claimant s conflicting statements about her alcohol and drug use to discredit her 18 testimony) (citing Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999)). 19 Finally, the ALJ discounted plaintiff s subjective complaints, in part due to 20 plaintiff s failure to perform substantial gainful activity in the 15 years preceding 21 the ALJ s April 27, 2006 decision. (AR 15). An ALJ may discredit a claimant s 22 testimony in light of a poor work history. Thomas, 278 F.3d at 959 (claimant s 23 extremely poor work history and demonstrated lack of propensity to work in 24 her lifetime constituted clear and convincing reasons for discounting claimant s 25 credibility); see SSR 96-7P (when assessing credibility ALJ may consider, inter 26 alia, [claimant s] prior work record and efforts to work. ). Here, however, the 27 this reason for discounting plaintiff s testimony is not clear and convincing, since 28 plaintiff was 27 years old at the time of Pre-Remand Decision, and thus could not 23 1 likely have had a prior legal work history that spanned 15 years. (AR 14, 15). 2 Nonetheless, even if this basis for the ALJ s credibility determination was 3 deficient, any such error was harmless because the ALJ s remaining reasons for 4 discrediting plaintiff s subjective symptom testimony are supported by substantial 5 evidence and the foregoing error does not negate the validity of the ALJ s ultimate 6 credibility conclusion in this case. See Carmickle, 533 F.3d at 1162 (Where some 7 reasons supporting an ALJ s credibility analysis are found invalid, the error is 8 harmless if (1) the remaining reasons provide substantial evidence to support the 9 ALJ s credibility conclusions, and (2) the error does not negate the validity of the 10 ALJ s ultimate credibility conclusion. ) (quoting Batson, 359 F.3d at 1195) 11 (citation and internal quotation marks omitted). 12 Accordingly, plaintiff is not entitled to a reversal or remand on this basis. 13 V. CONCLUSION 14 For the foregoing reasons, the decision of the Commissioner of Social 15 Security is affirmed. 16 LET JUDGMENT BE ENTERED ACCORDINGLY. 17 DATED: January 25, 2010 18 19 20 _______________/s/__________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 24

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