Holdman v. Astrue, No. 4:2010cv01194 - Document 29 (N.D. Cal. 2011)
Court Description: ORDER DENYING PLAINTIFF'S 24 MOTION FOR SUMMARY JUDGMENT AND REMAND AND GRANTING DEFENDANTS 27 MOTION FOR SUMMARY JUDGMENT. Signed by Judge Claudia Wilken on 8/31/2011. (ndr, COURT STAFF) (Filed on 8/31/2011)
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Holdman v. Astrue Doc. 29 1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 BILLY HOLDMAN, 7 8 9 No. C 10-01194 CW Plaintiff, v. MICHAEL J. ASTRUE, Commissioner, Social Security Administration United States District Court For the Northern District of California 10 Defendant. 11 / 12 ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMAND AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Docket Nos. 24 and 27) 13 Plaintiff Billy Holdman moves for summary judgment and remand 14 for a new hearing following the denial of his claim for Title XVI 15 supplemental security income (SSI). Defendant Michael J. Astrue in 16 his capacity as Commissioner of the Social Security Administration 17 (Commissioner) opposes the motion and moves for summary judgment. 18 Having considered all of the papers filed by the parties, the Court 19 DENIES Plaintiff’s motion for summary judgment and remand, and 20 GRANTS Defendant’s motion for summary judgment. 21 BACKGROUND 22 Plaintiff was born on November 3, 1952. He graduated from 23 high school and attended college for two years. Plaintiff's most 24 recent employment was in 2004, when he provided in-home care to his 25 wife, who had AIDS. Plaintiff's wife died in February 2007. 26 Plaintiff originally applied for SSI in 1974, and was found 27 disabled by the Social Security Administration (SSA) due to a 28 Dockets.Justia.com 1 somatoform disorder. 2 disability ceased as of December 18, 1997. 3 Plaintiff never received notice of this termination, and, due to an 4 administrative error, continued receiving benefits until January, 5 2005. SSA subsequently determined that Plaintiff's AR 77. However, AR 76. 6 On January 3, 2005, Plaintiff reapplied for Title XVI 7 benefits, alleging he was disabled because of Hepatitis C, 8 emphysema, migraine headaches, anxiety, depression, hole in eye, 9 heart murmur, asthma, and severe allergies. AR 81. On September United States District Court For the Northern District of California 10 8, 2005, SSA denied Plaintiff's application, finding that he did 11 not suffer from complications from his claimed ailments that would 12 prevent him from working. 13 affirmed on reconsideration, and Plaintiff filed a timely request 14 for hearing. AR 88, 89. AR 81-82. This determination was 15 In a pre-hearing brief, Plaintiff alleged that, in addition to 16 the impairments he originally claimed, he was also HIV positive and 17 suffered from mental impairments, substance use problems, and 18 chronic pain in his chest wall, right arm and thigh. 19 AR 73. On August 27, 2007, a hearing was held before an 20 Administrative Law Judge (ALJ) in San Francisco, California. 21 Plaintiff appeared and was represented by counsel. 22 heard testimony from Plaintiff and two medical experts, Dr. Sergio 23 Bello, an internist, and Dr. David Anderson, a psychiatrist. 24 16. 25 but did not testify. 26 27 28 AR 16. The ALJ AR Vocational expert Joel Greenberg was present at the hearing AR 917-918. On November 27, 2007, the ALJ issued a written decision denying Plaintiff's claim for SSI benefits. 2 The ALJ found that 1 Plaintiff's symptoms and limitations due to ongoing substance abuse 2 of cocaine and opiates prevented him from performing any 3 substantial gainful activity. 4 considered Plaintiff's limitations independent of substance abuse, 5 as required by 20 C.F.R. § 419.935. 6 examining internist found no physical basis for significant 7 functional restrictions, and that the examining psychologist, who 8 found no signs of intoxication or substance abuse, reported a 9 Global Assessment Functioning (GAF) of 70, "consistent with a AR 18-19. However, the ALJ then The ALJ noted that the United States District Court For the Northern District of California 10 finding of no severe mental impairment." 11 noted the opinions of Dr. Bello and Dr. Anderson, both of whom 12 ascribed Plaintiff’s subjective reports of pain to "drug seeking 13 behavior." 14 evidence of "objective abnormalities" to support Plaintiff’s 15 subjective complaints of chronic pain. 16 ALJ found that Plaintiff did not suffer from any severe impairments 17 other than those related to substance abuse, and was not disabled. 18 AR 19-20. 19 AR 19. AR 19. The ALJ also The ALJ concluded that there was insufficient AR 19. Accordingly, the Plaintiff filed a timely request for review of the ALJ's 20 decision. 21 Plaintiff's attorney submitted additional medical records, arguing 22 that they showed Plaintiff suffered from severe depression since at 23 least February 2007. 24 notes from Dr. Rosenthal of the Contra Costa Health Services Mental 25 Health Division. 26 diagnosed Plaintiff with a mood disorder in March 2008, 27 attributable to depression caused by the death of Plaintiff's wife 28 AR 12. In a letter to the SSA Appeals Council, AR 910-911. The records included treatment According to Plaintiff’s attorney, Dr. Rosenthal 3 1 2 in February 2007. AR 910-911. The Appeals Council denied Plaintiff's request for review. Finding that most of the "voluminous package of medical records" 4 submitted by Plaintiff related to the time period after the ALJ's 5 decision of November 23, 2007, the Appeals Council accepted as 6 exhibits just five pages of those records: (1) a letter from an 7 administrative supervisor at UCSF Medical Center General Medicine 8 Clinic notifying Plaintiff that the clinic would no longer 9 prescribe him narcotics due to his failure to abide by the terms of 10 United States District Court For the Northern District of California 3 his agreement with the clinic; and (2) three pages of medical chart 11 notes. 12 basis for reviewing the ALJ's decision. 13 AR 912-916. As a result, the Appeals Council found no AR 5-6. Plaintiff timely commenced this action for judicial review. 14 In his "Motion for Summary Judgment and Remand to the 15 Administrative Law Judge for Another Hearing," Plaintiff claims 16 that the ALJ erred by failing to conduct a proper analysis of 17 Plaintiff's residual functional capacity (RFC) in light of his 18 substance abuse, and that the Appeals Council erred by failing to 19 consider the treatment records from Dr. Rosenthal, which relate 20 back to the time period before the ALJ's decision. 21 22 LEGAL STANDARD A court may set aside the Commissioner’s denial of disability 23 benefits only when his findings are based on legal error or are not 24 supported by substantial evidence in the record as a whole. 25 U.S.C. § 405(g); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 26 1999). 27 scintilla but less than a preponderance.” 28 42 Substantial evidence is defined as “more than a mere 4 Id. at 1098 (internal 1 quotation marks omitted). 2 record, weighing both the evidence that supports and contradicts 3 the Commissioner’s conclusion. The court must consider the entire Id. 4 Even when a decision is supported by substantial evidence in 5 the record, it "should be set aside if the proper legal standards 6 were not applied in weighing the evidence and making the decision." 7 Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978) (citing 8 Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968)). 9 regulations, the Commissioner must apply a five-step sequential United States District Court For the Northern District of California 10 process to evaluate a disability benefits claim.1 11 bears the burden of proof in steps one through four. 12 Massanari, 262 F.3d 949, 953-954 (9th Cir. 2001). 13 shifts to the Commissioner in step five. 14 Under SSA The claimant Bustamante v. The burden Id. at 954. A finding of disability under the five-step inquiry does not 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The five steps of the inquiry are 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is not disabled within the meaning of the Social Security Act. If not, proceed to step two. See 20 C.F.R. § 416.920(b). 2. Is the claimant's impairment severe? If so, proceed to step three. If not, then the claimant is not disabled. See 20 C.F.R. § 416.920(c). 3. Does the impairment "meet or equal" one of a list of specific impairments described in 20 C.F.R. Part 220, Subpart P, Appendix 1? If so, then the claimant is disabled. If not, proceed to step four. See 20 C.F.R. § 416.920(d). 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is not disabled. If not, proceed to step five. See 20 C.F.R. § 416.920(e). 5. Is the claimant able to do any other work? If so, then the claimant is not disabled. If not, then the claimant is disabled. See 20 C.F.R. § 416.920(f). 5 1 automatically qualify a claimant for benefits. 2 with America Advancement Act (CAAA), a claimant “shall not be 3 considered disabled for the purposes of [receiving benefits] if 4 alcoholism or drug addiction [is] a contributing material factor to 5 the Commissioner’s determination that the individual is disabled.” 6 42 U.S.C. § 1382c(a)(3)(J); see also Bustamante, 262 F.3d at 954. 7 Thus, if the claimant would not be disabled if he or she stopped 8 using alcohol or drugs, the Commissioner must deny his or her 9 benefits claim. Under the Contract Ball v. Massanari, 254 F.3d 817, 822 (9th Cir. United States District Court For the Northern District of California 10 2001); see also 20 C.F.R. § 416.935 (implementing 42 U.S.C. 11 § 1382c(a)(3)(J)). 12 13 14 DISCUSSION I. ALJ's Five-step Sequential Evaluation Citing Bustamante, 262 F.3d at 955, Plaintiff claims that the 15 ALJ erred as a matter of law by failing to conduct properly the 16 five-step sequential analysis before determining that Plaintiff’s 17 substance abuse materially contributes to his disability. 18 In Bustamante, the Ninth Circuit addressed the procedural 19 requirements for denying benefits to substance abusers under 20 20 C.F.R. § 416.935. 21 that a claimant is disabled before determining whether substance 22 abuse materially contributes to the finding of disability. 23 F.3d at 955; see also Drapeau v. Massanari, 255 F.3d 1211, 1214 24 (10th Cir. 2001). 25 in a finding of disability, the ALJ should then decide whether the 26 claimant would still be disabled if he or she stopped using drugs 27 or alcohol. 28 The court held that an ALJ must first conclude 262 If and only if the five-step evaluation results Bustamante, 262 F.3d at 955. 6 1 Plaintiff argues that, under Bustamante, the ALJ was required 2 to "specifically state" Plaintiff's RFC both before and after 3 factoring out the effects of his substance abuse. 4 out that the ALJ discussed the evaluations by the consultative 5 internist and the consultative psychologist, who found no physical 6 or mental limitations. 7 "explicitly state" that he was adopting these assessments or 8 "specifically state" his own assessment. Plaintiff points However, Plaintiff argues, the ALJ did not Plaintiff's reading of the ALJ's decision is incorrect. 10 United States District Court For the Northern District of California 9 Although the ALJ did not use the phrase "residual functional 11 capacity," he made clear that, with substance abuse factored in, he 12 found Plaintiff capable of performing no work: 13 “substance abuse and related problems prevent him from obtaining 14 and maintaining employment, including past work or any other kinds 15 of work . . . ." 16 Plaintiff’s AR 20. The ALJ then proceeded to factor out Plaintiff's substance 17 abuse. 18 assessments not only of the consultative examiners but also of the 19 testifying medical experts. 20 21 22 23 In doing so, the ALJ made clear that he agreed with the The ALJ stated: Considering the claimant's alleged impairments independent of substance abuse, however, it is found that the substantial evidence supports the assessments of the consultative examiners and the qualified medical experts and reveals no severe medically determined impairments which would reasonably be expected to produce significant work related limitations of extended duration. 24 AR 19. 25 § 416.920(c), defining the "severity" requirement of step two. 26 is clear that the ALJ found, after factoring out Plaintiff's 27 substance abuse, that Plaintiff's impairments were not severe 28 This statement tracks the language of 20 C.F.R. 7 It 1 2 enough to pass step two. Contrary to Plaintiff's assertions, the ALJ followed 3 Bustamante. 4 abuse is material to the finding of disability. 5 F.3d at 955. 6 case, the ALJ first found Plaintiff disabled at step five with his 7 substance abuse factored in, then found him not disabled at step 8 two with his substance abuse factored out. 9 Plaintiff not disabled at step two after factoring out Plaintiff's Bustamante requires the ALJ to determine if substance Bustamante, 262 If so, the claimant is not disabled. Id. In this Because the ALJ found United States District Court For the Northern District of California 10 substance abuse, there was no need to reassess Plaintiff's RFC. 11 Bustamante does not require the ALJ to continue the five step 12 evaluation after the materiality of the claimant’s substance abuse 13 has been established. 14 not disabled. 15 At that point, the claimant has been found Plaintiff appears to suggest that the ALJ's findings were 16 improper because he initially found Plaintiff disabled because of 17 impairments related to his substance abuse. 18 differentiating analysis under 20 C.F.R. § 416.935 a foregone 19 conclusion; having found Plaintiff disabled because of his 20 substance abuse, the ALJ was certain to find that Plaintiff's 21 substance abuse was material to the finding of disability. 22 This rendered the There is no indication that the ALJ failed to consider 23 adequately Plaintiff's other impairments. 24 considered the objective evidence of Plaintiff's other impairments 25 and found that it was insufficient to support Plaintiff’s 26 subjective complaints. 27 were those related to substance abuse. 28 Rather, the ALJ The only impairments the ALJ could identify 8 1 The ALJ’s findings in this case are thus distinguishable from 2 those in Bustamante. 3 that the plaintiff's impairments were "the product and consequence 4 of his alcohol abuse and not an independently severe or disabling 5 impairment." 6 other impairments but found that only those related to substance 7 abuse were severe enough to pass step two. 8 followed the procedure outlined in Bustamante and proceeded to find 9 Plaintiff disabled at steps four and five, before determining United States District Court For the Northern District of California 10 11 In Bustamante, the ALJ concluded at step two 262 F.3d at 955. Here, the ALJ noted Plaintiff's Nonetheless, the ALJ whether the substance abuse was material to this determination. It is important to note that Plaintiff does not challenge any 12 of the ALJ's findings as unsupported by substantial evidence. 13 includes the finding that there was insufficient evidence of 14 objective factors to support Plaintiff's subjective complaints of 15 pain; the finding that Plaintiff's complaints of pain were 16 primarily motivated by his drug-seeking behavior; and the finding 17 that Plaintiff's impairments other than those related to substance 18 abuse were not severe. 19 ALJ's decision is whether he satisfied the procedural steps under 20 Bustamante. 21 This Instead, Plaintiff's only challenge to the To be sure, the ALJ's decision is not a model of clarity. The 22 ALJ did not specifically state which of Plaintiff's limitations 23 were related to substance abuse. 24 that (1) with Plaintiff's substance abuse factored in, Plaintiff 25 was unable to do his past relevant work or any other work in the 26 national economy; and (2) with Plaintiff's substance abuse factored 27 out, Plaintiff did not suffer from any severe limitations. 28 However, the decision is clear 9 The 1 ALJ's conclusion that Plaintiff's substance abuse was material to 2 the finding of the disability followed logically from these facts. 3 The ALJ’s statement in his initial determination that Plaintiff's 4 substance abuse was the cause of Plaintiff's disabling impairments 5 was not error. 6 Plaintiff’s motion to remand to the ALJ to evaluate Plaintiff’s 7 disability under Bustamante is denied. 8 II. 9 Because the ALJ complied with Bustamante, Appeals Council’s Consideration of New Evidence Plaintiff argues that the Appeals Council erred when it United States District Court For the Northern District of California 10 declined to incorporate the treatment records of Dr. Rosenthal into 11 the administrative record. 12 records to the Court, they apparently showed that Dr. Rosenthal 13 diagnosed Plaintiff with a mood disorder in March 2008, based in 14 part on Plaintiff's statement that he had been depressed since his 15 wife died in February 2007. 16 five pages of documents into the administrative record, AR 912-916, 17 and rejected the rest, including the Rosenthal records. 18 Appeals Council informed Plaintiff that the rejected records were 19 "about a later time" and did "not affect the decision whether you 20 were disabled beginning on or before November 23, 2007." 21 Although Plaintiff did not submit these The Appeals Council incorporated just The AR 6. The Appeals Council must review a case if “new and material 22 information is submitted” after the ALJ’s determination. 23 §§ 404.970(b). 24 directly and substantially on the matter in dispute.’” 25 Massanari, 276 F.3d 453, 462 (9th. Cir. 2001) (citations omitted). 26 When new evidence is considered, the Appeals Council must order 27 review of a case when it finds that the ALJ’s decision is against 28 20 C.F.R. In order to be material, evidence “must ‘bear 10 Mayes v. 1 the weight of all the evidence currently in the record. 2 § 416.1470(b). 3 reasonable possibility that the new evidence would have changed the 4 outcome’” of the ALJ’s decision. 5 Servs., 734 F.2d 1378, 1380-81 (9th Cir. 1984) (emphasis in 6 original) (citations omitted). 7 20 C.F.R. Remand is appropriate “‘only where there is a Booz v. Sec’y of Health and Human Because Plaintiff did not submit the Rosenthal records to the 8 Court, the Court is unable to evaluate whether there is a 9 reasonable possibility that they would have changed the outcome of United States District Court For the Northern District of California 10 the ALJ’s decision. 11 letter to the Appeals Council, there may be such a possibility. 12 However, even though the records were submitted to the Appeals 13 Council, they were returned to Plaintiff. 14 not have access to the records, and cannot respond to Plaintiff’s 15 contention that the case should be remanded for review of them. 16 Accordingly, Plaintiff has not met his burden of showing that the 17 new evidence submitted to the Appeals Council is material to the 18 ALJ’s finding, as would be required to warrant remand. According to the description in Plaintiff’s Defendant therefore does 19 CONCLUSION 20 For the foregoing reasons, Defendant's motion for summary 21 judgment is GRANTED (Docket no. 27) and Plaintiff's motion for 22 summary judgment and remand is DENIED (Docket no. 24). 23 shall enter accordingly. 24 25 The parties shall bear their own costs. IT IS SO ORDERED. Dated: 8/31/2011 CLAUDIA WILKEN United States District Judge 26 27 28 Judgment 11
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