Shirley Laverne Lewis v. Michael J. Astrue, No. 5:2010cv00119 - Document 18 (C.D. Cal. 2010)
Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is REVERSED. 2. This action is REMANDED to defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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Shirley Laverne Lewis v. Michael J. Astrue Doc. 18 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 EASTERN DIVISION 10 11 SHIRLEY L. LEWIS ) ) ) ) ) ) ) ) ) ) _ ) 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. No. EDCV 10-00119 CW DECISION AND ORDER 17 18 The parties have consented, under 28 U.S.C. § 636(c), to the 19 jurisdiction of the undersigned magistrate judge. Plaintiff seeks 20 review of the denial of disability benefits. As discussed below, the 21 court finds that the Commissioner’s decision should be reversed and 22 this matter remanded for further proceedings. 23 I. BACKGROUND 24 Plaintiff Shirley L. Lewis was born on May 19, 1957, and was 25 fifty-two years old at the time of her first administrative hearing. 26 [AR 16.] She has completed three years of college and has past 27 relevant work experience as an eligibility technician, fine jewelry 28 1 Dockets.Justia.com 1 sales specialist, and flight attendant. [AR 57, 16.] 2 alleges disability on the basis of severe depression, anxiety, panic 3 attacks, severe hypertension, irritable bowel syndrome, spastic colon, 4 a tear in the esophagus, asthma, and high blood pressure. [AR 181.] 5 II. 6 Plaintiff PROCEEDINGS IN THIS COURT Plaintiff’s complaint was filed on January 22, 2010. On July 21, 7 2010, Defendant filed an Answer and Plaintiff’s Administrative Record 8 (“AR”). 9 (“JS”) identifying matters not in dispute, issues in dispute, the On October 8, 2010, the parties filed their Joint Stipulation 10 positions of the parties, and the relief sought by each party. 11 matter has been taken under submission without oral argument. 12 III. This PRIOR ADMINISTRATIVE PROCEEDINGS 13 Plaintiff applied for a period of disability and disability 14 insurance benefits, alleging disability beginning April 30, 2001. [AR 15 11.] 16 Plaintiff requested an administrative hearing. 17 on April 22, 2009, and June 12, 2009, before an Administrative Law 18 Judge (“ALJ”). [Id.] 19 hearings. [Id.] 20 Samuel Landau, and vocational expert Sandra M. Fioretti. [Id.] The ALJ 21 denied benefits in a decision issued on September 30, 2009. [AR 11- 22 21.] 23 ALJ’s decision became the Commissioner’s final decision. [AR 1.] 24 25 After the claim was denied initially and upon reconsideration, Two hearings were held Plaintiff was represented by counsel at both Testimony was taken from Plaintiff, medical expert When the Appeals Council denied review on November 24, 2009, the IV. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 26 Commissioner’s decision to deny benefits. 27 ALJ’s) findings and decision should be upheld if they are free of 28 legal error and supported by substantial evidence. 2 The Commissioner’s (or However, if the 1 court determines that a finding is based on legal error or is not 2 supported by substantial evidence in the record, the court may reject 3 the finding and set aside the decision to deny benefits. 4 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 5 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 6 F.3d 1157, 1162 (9th Cir. 7 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 8 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 9 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 10 See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, “Substantial evidence is more than a scintilla, but less than a 11 preponderance.” Reddick, 157 F.3d at 720. 12 which a reasonable person might accept as adequate to support a 13 conclusion.” 14 a finding, a court must review the administrative record as a whole, 15 “weighing both the evidence that supports and the evidence that 16 detracts from the Commissioner’s conclusion.” 17 can reasonably support either affirming or reversing,” the reviewing 18 court “may not substitute its judgment” for that of the Commissioner. 19 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. It is “relevant evidence To determine whether substantial evidence supports 20 V. Id. “If the evidence DISCUSSION 21 A. THE FIVE-STEP EVALUATION FOR SUBSTANCE ABUSE 22 To be eligible for disability benefits a claimant must 23 demonstrate a medically determinable impairment which prevents the 24 claimant from engaging in substantial gainful activity and which is 25 expected to result in death or to last for a continuous period of at 26 least twelve months. 27 Chater, 157 F.3d at 721; 42 U.S.C. § 423(d)(1)(A). 28 Tackett v. Apfel, 180 F.3d at 1098; Reddick v. Disability claims are evaluated using a five-step test: 3 1 2 3 4 5 6 7 8 9 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 10 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 11 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 12 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett v. Apfel, 180 F.3d at 13 1098-99; 20 C.F.R. § 404.1520, § 416.920. If a claimant is found 14 “disabled” or “not disabled” at any step, there is no need to complete 15 further steps. Tackett v. Apfel, 180 F.3d 1098; 20 C.F.R. § 404.1520. 16 Claimants have the burden of proof at steps one through four, 17 subject to the presumption that Social Security hearings are non18 adversarial, and to the Commissioner’s affirmative duty to assist 19 claimants in fully developing the record even if they are represented 20 by counsel. Tackett v. Apfel, 180 F.3d at 1098 and n.3; Smolen v. 21 Chater, 80 F.3d at 1288. If this burden is met, a prima facie case of 22 disability is made, and the burden shifts to the Commissioner (at step 23 five) to prove that, considering residual functional capacity 24 (“RFC”)1, age, education, and work experience, a claimant can perform 25 26 1 27 28 Residual functional capacity measures what a claimant can still do despite existing “exertional” (strength-related) and “nonexertional” limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to 4 1 other work which is available in significant numbers. 2 Apfel, 180 F.3d at 1098, 1100; Reddick v. Chater, 157 F.3d at 721; 20 3 C.F.R. § 404.1520, § 416.920. 4 Tackett v. However, “a finding of ‘disabled’ under the five-step inquiry 5 does not automatically qualify a claimant for disability benefits.” 6 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007)(quoting Bustamante 7 v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001)). 8 eligible to receive disability benefits if drug or alcohol addiction 9 is a “contributing factor material to the Commissioner’s determination A claimant is not 10 that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C); 20 C.F.R. 11 §§ 404.1535(a), 416.935(a). 12 that drug or alcohol addiction is not a contributing factor material 13 to his or her disability. 14 Commissioner finds that the claimant is disabled and has medical 15 evidence of the claimant’s drug addiction or alcoholism, “the ALJ must 16 conduct a drug and alcoholism analysis (‘DAA Analysis’) by determining 17 which of the claimant’s disabling limitations would remain if the 18 claimant stopped using drugs or alcohol.” 19 C.F.R. §§ 404.1535(b)(2), 416.935(b)(2); see also Bustamante v. 20 Massanari, 262 F.3d at 954; Ball v. Massanari, 254 F.3d 817, 821 (9th 21 Cir. 2001); Sousa v. Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998). 22 If the remaining limitations would still be disabling, then drug 23 addiction or alcohol is not a contributing factor material to his 24 disability. The claimant bears the burden of proving Parra v. Astrue, 481 F.3d at 748. If the Id., 481 F.3d at 747; 20 Parra v. Astrue, 481 F.3d at 747. If the remaining 25 26 27 28 work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 limitations would not be disabling, then the claimant’s substance 2 abuse is material and benefits must be denied. Id. 3 B. THE ALJ’S EVALUATION IN PLAINTIFF’S CASE 4 Here, the ALJ found that the Plaintiff had not engaged in 5 substantial gainful activity since her alleged disability onset date 6 (step one); that Plaintiff had the following “severe” impairments: 7 hypertension, fatty accumulation in the liver, right hip degenerative 8 disease, alcohol dependence, prescription drug abuse, depression, and 9 irritable bowel syndrome (step two); and that Plaintiff did not have 10 an impairment or combination of impairments that met or equaled a 11 listing (step three). [AR 13-14.] The ALJ determined that based on all 12 these impairments, including substance use disorders, Plaintiff has an 13 RFC for sedentary work, except she is unable to sustain an eight-hour 14 workday and a forty-hour workweek. [AR 16.] 15 perform her past relevant work (step four). [Id.] The vocational 16 expert testified that there are no jobs that exist in significant 17 numbers in the national economy which a person with Plaintiff’s RFC 18 could perform (step five). [Id.] 19 Plaintiff was unable to The ALJ then considered whether Plaintiff would still be disabled 20 if she stopped her substance abuse. The ALJ found that Plaintiff 21 would continue to have a severe impairment or combination of 22 impairments, but would not have an impairment or combination of 23 impairments that meets or medically equals a listing. [AR 17.] The ALJ 24 determined that if Plaintiff’s substance abuse discontinued, Plaintiff 25 would have an RFC to perform light work, except she is limited to 26 stand and/or walk for four hours of an eight-hour workday and sit six 27 hours of an eight-hour workday. 28 ramps, stairs, ladders, scaffolds or ropes frequently, cannot run Additionally, Plaintiff cannot climb 6 1 and/or jump, cannot work around dangerous and/or fast moving 2 machinery, and cannot operate motorized vehicles and/or equipment. 3 Plaintiff cannot work at unprotected heights or around fumes, odors 4 dust, gases or chemicals, and must be afforded an air conditioned work 5 place. 6 pace, cannot work where she is responsible for the safety of others, 7 and cannot perform work requiring hyper-vigilance. [AR 18.] 8 concluded that if Plaintiff’s substance abuse stopped, Plaintiff’s 9 impairments would not preclude her from performing her past relevant Plaintiff cannot work at a high quota production, rate and/or The ALJ 10 work as an eligibility technician (step four). [AR 21.] 11 Plaintiff was not found “disabled” as defined by the Social Security 12 Act. [Id.] Accordingly, 13 C. ISSUE IN DISPUTE 14 The parties’ Joint Stipulation sets out a single disputed issue: 15 “Whether the ALJ has properly considered the relevant medical evidence 16 of record as it pertains to Plaintiff’s mental impairments including 17 the effect if any of Plaintiff’s substance use disorder.” [JS 3.] 18 Plaintiff contends that the ALJ’s finding regarding Plaintiff’s 19 RFC without a substance use disorder was not supported by the record. 20 [JS 4.] Plaintiff contends that there is no basis within the record 21 from which to make a determination regarding the effect of alcohol or 22 prescription drug use on Plaintiff’s mental conditions and resulting 23 RFC. [Id.] Plaintiff further alleges that the ALJ erred in failing to 24 obtain an assessment from a mental health examiner or expert regarding 25 the extent and severity of Plaintiff’s mental limitations. [JS 6.] 26 Defendant contends that Plaintiff’s failure to produce objective 27 evidence of functional limitations due to a mental impairment does not 28 trigger a responsibility for the ALJ to “create such evidence.” [JS 7 1 9.] Defendant also asserts that the ALJ was entitled to draw an 2 inference that Plaintiff would have an RFC to perform a range of light 3 work activity without substance abuse, if it flowed logically from the 4 evidence. [JS 15.] 5 6 Background Although the record provides sufficient evidence of Plaintiff’s 7 physical and mental limitations, the record is sparse and conflicting 8 with regard to the effect of Plaintiff’s alcohol and prescription drug 9 abuse. On February 22, 2007, Plaintiff was admitted to Menifee Valley 10 Medical Center with a two-day history of abdominal discomfort, nausea, 11 vomiting, and blood in her stools. [AR 313.] A consultation report 12 from the visit noted that Plaintiff has “significant alcohol 13 consumption [] in the past few months drinking about a pint or quart 14 of tequila . . . definitely an every day drinker and she was told to 15 quit alcohol. 16 ]inflammatory agents in the form of Ecotrin.” [Id.] The report also 17 noted that Plaintiff suffers from alcoholism and alcoholic liver 18 disease, and that chemical dependency counseling and alcohol 19 rehabilitation is required. [AR 314.] A physical exam report from the 20 same visit noted that Plaintiff drinks alcohol every day, and has an 21 alcohol dependency and ETOH abuse (referring to ethanol). 22 was counseled about her ethanol use and a rehabilitation program was 23 recommended. [AR 310-311.] 24 2007, diagnosed Plaintiff with ethyl alcohol use and alcoholic 25 hepatitis, which is inflammation of the liver due to excessive intake 26 of alcohol. 27 ethyl alcohol use, [and] she drinks alcohol heavily.” [AR 308.] 28 also noted that “patient wanted to go for outpatient rehabilitation She also takes over the counter nonsteroidal anti[- Plaintiff The discharge record, dated March 15, This record also noted that Plaintiff has a “history of 8 It 1 program. 2 inflammatory drugs and alcohol.” [AR 309.] Plaintiff was admitted to 3 Menifee Valley Medical Center again approximately one year later, on 4 March 17, 2008, complaining of abdominal pain, nausea, vomiting and 5 diarrhea. [AR 400.] 6 pint of alcohol every other day” and was “advised to avoid alcohol.” 7 [AR 402.] 8 9 She was advised to avoid aspirin, nonsteroidal anti- The report noted that Plaintiff “drinks half a The remainder of the record does not clearly indicate Plaintiff’s medical history or functional capacity. Dr. John Harsany was 10 Plaintiff’s personal physician prior to 2001. [AR 43.] 11 treatment, he prescribed medications to Plaintiff for her physical 12 problems, as well as psychiatric medications when she was not in 13 treatment with a psychiatrist. [AR 33-34.] 14 consist of various tests and client notes, most of which are 15 illegible, and do not provide any evidence of Plaintiff’s functional 16 limitations. [AR 338-379.] 17 During his Dr. Harsany’s records Plaintiff testified that Dr. Harsany advised her to see a 18 psychiatrist, and so he referred her to Dr. Prakashchondra Patel. [AR 19 32.] 20 how long. 21 or 2001, but Dr. Patel’s records include a New Patient Form as well as 22 other documents for Plaintiff dated June 14, 2005. 23 Additionally, Plaintiff did not clearly indicate how long she was 24 actually treated by Dr. Patel. 25 switched from Dr. Patel to Dr. Cathy Chance, who began treating her in 26 approximately 2000. 27 Chance until 2008, but later testified that the treating relationship 28 lasted a little over a year. [AR 65, 32.] It is unclear when Dr. Patel began to treat Plaintiff, and for Plaintiff testified that she began seeing Dr. Patel in 2000 [AR 43, 435, 442.] However, Plaintiff testified that she Plaintiff testified that she was treated by Dr. 9 1 Plaintiff’s medical record was reviewed by the medical expert, 2 Dr. Samuel Landau for purposes of the administrative hearing. 3 first hearing, Dr. Landau opined that Plaintiff has a history of 4 asthma, hypertension, a fatty liver, mild degenerative arthritis of 5 the right hip, and psychiatric diagnoses. [AR 58.] 6 consulted regarding Plaintiff’s substance abuse and was not present at 7 the supplemental hearing. [AR 24.] 8 9 At the Dr. Landau was not As previously stated, the only documents available from Dr. Patel are a New Patient Form and assessment as well as a medication and 10 treatment record. [AR 436-442.] 11 is June 14, 2005. 12 Plaintiff with “Major Depressive Disorder, recurrent severe without 13 psychotic features” and “panic disorder with agoraphobia.” [AR 437.] 14 However, he also noted that Plaintiff was awake and oriented, had 15 normal speech, good concentration, her thought processes were goal 16 directed, and she was of average intelligence. [AR 439.] With regard 17 to alcohol, he noted that Plaintiff drinks one glass of wine in the 18 evening, and was previously admitted to the Betty Ford Clinic in 1994 19 for an alcohol dependency problem. [Id.] 20 The only date on any of these records These documents indicate that Dr. Patel diagnosed There is little evidence in the record in the way of prescription 21 drug abuse other than the reference to nonsteroidal anti-inflammatory 22 drugs in the Menifee Valley Medical Center records. 23 supplemental hearing, the ALJ referenced a treatment note dated 24 September 13, 2007 indicating that “patient is using two (2) 25 pharmacies.” [AR 46, 416.] Plaintiff claims this was in reference to 26 the fact that she and her husband were using two different pharmacies, 27 although the ALJ seemed doubtful because the notation was in 28 Plaintiff’s own treatment records. [AR 46.] 10 At the Discussion 1 2 42 U.S.C. 423(d)(2)(c) provides that “an individual shall not be 3 considered to be disabled for purposes of this subchapter if 4 alcoholism or drug addiction would (but for this subparagraph) be a 5 contributing factor material to the Commissioner’s determination that 6 the individual is disabled.” 7 materiality determination involves a process of separating the effects 8 of the substance abuse and its impact on any other impairments, 9 physical or mental. If a finding of disability is made, the Bustamante v. Massanari, 262 F.3d at 955. The 10 claimant has the burden of proving that substance abuse is not a 11 contributing factor material to the finding of disability. 12 Astrue, 481 F.3d at 749. 13 materiality is insufficient to satisfy the claimant’s burden of proof 14 under the Act. 15 and fairly develop the record and to assure that the claimant’s 16 interests are considered, even when the claimant is represented by 17 counsel. 18 also Sousa v. Callahan, 143 F.3d at 1245 (remanding to give claimant 19 an opportunity to present evidence relevant to this issue). 20 Id. Parra v. Inconclusive evidence as to the issue of On the other hand, the ALJ has a duty to fully Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003); see In this case, the Commissioner’s finding that substance abuse was 21 a contributing factor material to the finding of disability was not 22 supported by substantial evidence. 23 inadequate to determine Plaintiff’s limitations without her substance 24 abuse. 25 and mental, whereas the only documented result of her alcohol 26 dependency is nausea, vomiting, and abdominal and rectal bleeding. 27 Additionally, Plaintiff’s own testimony did not provide any indication 28 as to her abilities independent of the substance abuse. As detailed above, the record is For example, many of Plaintiff’s limitations are psychological 11 Although both 1 the ALJ and Plaintiff appeared to have made reasonable efforts to 2 secure more medical records from both Drs. Chance and Patel, they were 3 unable to do so. (AR 24, 60-61, 72-74, 398). 4 ALJ took the testimony of a medical expert, he offered no opinion as 5 to the effect of Plaintiff’s substance abuse on her disability. 6 Accordingly, the record does not contain a clear statement from a 7 medical professional as to the effect on Plaintiff’s claimed mental 8 impairment if she were to abstain from all substance abuse. 9 v. Astrue, 481 F.3d at 750 (finding substantial evidence to support Finally, although the Cf. Parra 10 finding of non-disability where medical expert testified that 11 abstinence generally ameliorates the effects of liver cirrhosis); see 12 also Tagger v. Astrue, 536 F. Supp. 2d 1170, 1181 (C.D. Cal. 2008) 13 (suggesting that ALJ solicit opinion from a treating physician and/or 14 have a medical expert testify about what limitations, if any, claimant 15 would continue to experience if his substance abuse ceased). 16 these circumstances, remand for further development of the record is 17 appropriate. 18 D. 19 The decision whether to remand for further proceedings is within Under REMAND FOR FURTHER PROCEEDINGS Harman v. Apfel, 211 F.3d 1172, 20 the discretion of the district court. 21 1175-1178 (9th Cir. 2000). 22 further proceedings, or where the record has been fully developed, it 23 is appropriate to exercise this discretion to direct an immediate 24 award of benefits. 25 remand for further proceedings turns upon their likely utility). 26 However, where there are outstanding issues that must be resolved 27 before a determination can be made, and it is not clear from the 28 record that the ALJ would be required to find the claimant disabled if Where no useful purpose would be served by Harman, 211 F.3d at 1179 (decision whether to 12 1 all the evidence were properly evaluated, remand is appropriate. 2 Here, as set out above, outstanding issues remain before a finding of 3 disability can be made. 4 Id. Accordingly, remand is appropriate. VI. ORDERS 5 Accordingly, IT IS ORDERED that: 6 1. The decision of the Commissioner is REVERSED. 7 2. This action is REMANDED to defendant, pursuant to Sentence 8 Four of 42 U.S.C. § 405(g), for further proceedings as discussed 9 above. 10 11 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 12 13 14 15 DATED: November 15, 2010 ______________________________ CARLA M. WOEHRLE United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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