Zumwalt v. Commissioner of Social Security, No. 1:2018cv03099 - Document 20 (E.D. Wash. 2019)
Court Description: ORDER GRANTING IN PART 11 PLAINTIFF'S AND DENYING 18 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Case is CLOSED. Signed by Judge Rosanna Malouf Peterson. (LR, Case Administrator)
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Zumwalt v. Commissioner of Social Security Doc. 20 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Apr 22, 2019 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 LESTER Z., NO: 1:18-CV-3099-RMP Plaintiff, 8 v. 9 10 COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12 13 BEFORE THE COURT, without oral argument, are cross-motions for 14 summary judgment from Plaintiff Lester Z. 1, ECF No. 11, and the Commissioner of 15 Social Security (“Commissioner”), ECF No. 18. Plaintiff seeks judicial review, 16 pursuant to 42 U.S.C. § 405(g), of the Commissioner’s denial of his claims for 17 disability insurance benefits under Title II and supplemental security income under 18 Title XVI of the Social Security Act (the “Act”). See ECF No. 11 at 2. Having 19 20 21 In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first name and last initial, and, subsequently, Plaintiff’s first name only, throughout this decision. 1 ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 reviewed the parties’ motions and the administrative record, the Court is fully 2 informed. The Court grants in part Plaintiff’s motion, denies the Commissioner’s 3 motion, and remands the matter to the agency for further proceedings. 4 BACKGROUND 5 A. Plaintiff’s Claim for Benefits and Procedural History 6 Plaintiff Lester Z. was 21 years old on the alleged date of disability onset, 7 March 1, 2006, and 31 years old by the date of the administrative hearing before the 8 Commissioner. Administrative Record (“AR”) 110−11. 2 Lester’s date last insured 9 for purposes of Title II of the Social Security Act is June 30, 2008. AR 110. Lester 10 claimed that he suffers from severe anxiety and a panic disorder that have interfered 11 with his ability to work and hold gainful employment since 2006. See AR 74, 265. 12 B. March 9, 2016 and May 19, 2016 Hearings 13 Administrative Law Judge (“ALJ”) Jo Hoenninger heard Plaintiff’s claim for 14 benefits at a hearing in Portland, Oregon, on March 9, 2016, with Lester and his 15 attorney D. James Tree participating from the Social Security Administration’s 16 remote site in The Dalles, Oregon. AR 50. An impartial medical expert, Dr. Miriam 17 Sherman, testified regarding Lester’s claims. Lester also testified in response to 18 questions from his attorney. 19 20 21 2 The AR is filed at ECF No. 9. ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 Plaintiff testified that he had been living with his fiancée for approximately 2 two months at the time of the hearing. AR 76. Their residence was a trailer owned 3 by Plaintiff’s parents. Id. He had met his fiancée over the internet and had once 4 traveled to California to visit her for approximately three days before she joined him 5 in Washington. Id. Plaintiff recalled that his travel to California went “pretty 6 smoothly,” but emphasized that his psychiatrist had prescribed Ativan for him to 7 take on the trip, and his brother traveled with him. AR 79. Lester does not have a 8 driver’s license and relies on his parents for transportation. AR 77. 9 Plaintiff did not progress past seventh grade in school because he “was being 10 bullied,” but he earned his GED when he was approximately 18 years old. AR 77, 11 85. He worked briefly for a custodial service before losing the job due to panic 12 attacks. AR 78. He has not engaged in any paid work since 2006. AR 77−78. He 13 recalled that approximately two months before the hearing, he had experienced a 14 panic attack toward the end of a movie he was watching at a movie theater. AR 78. 15 He returned home, “had a massive nosebleed, and [was] basically bedridden . . . for 16 about two and a half weeks.” Id. 17 Plaintiff listed six medications that he was taking to address anxiety, attention 18 deficit disorder, low testosterone, tachycardia, and blood pressure issues at the time 19 of the hearing. AR 79−80. He reported that he had quit smoking “a long time ago” 20 and had last consumed alcohol approximately eight months to one year before the 21 ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 hearing. AR 81. He reported that he has used Adderall, an amphetamine, only “as 2 prescribed.” AR 82. 3 As for daily activities, Plaintiff reported that he does not know how to cook, is 4 able to vacuum “on a good day,” and does not do dishes because he and his fiancée 5 use “mostly paper plates,” and he is “usually . . . too sick to do anything.” AR 83. 6 Plaintiff expanded: “Usually I have a lot of panic attacks, and I’m not able to do 7 much. I can’t even play video games most of the time. I usually lay in bed in fear 8 and watch Netflix.” AR 83. He relies on his parents to do his laundry, although he 9 was able to do laundry occasionally when he lived with his parents. AR 84. He 10 regularly exercises indoors, using an aerobics video game or doing push-ups, and he 11 finds that type of exercise to be almost as effective as medication in soothing his 12 anxiety. AR 85. 13 Plaintiff reported that he had previously received a recommendation to receive 14 counseling rather than solely pursuing care for his anxiety and panic attacks from a 15 psychiatrist. AR 90. However, Plaintiff has been too “scared” to pursue counseling, 16 consistent with his general apprehension toward new experiences. AR 91. 17 Before Plaintiff completed his testimony, the time available for the hearing 18 expired, and the ALJ set a supplemental hearing for May 19, 2016. See AR 93−94. 19 Plaintiff elected not to continue his testimony at the supplemental hearing and, when 20 the ALJ’s phone conference line would not allow Plaintiff and his attorney to both 21 participate in the supplemental hearing, Plaintiff waived his right to be present for ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 the hearing. AR 100−01. The ALJ heard testimony from vocational expert (“VE”) 2 Paul Morrison in response to questions from the ALJ regarding hypothetical 3 scenarios and follow-up questions from Lester’s attorney. AR 100−08. The ALJ 4 asked VE Morrison to consider a hypothetical individual of Plaintiff’s age and 5 education, with one year and a half of relevant work as a janitor, which is classified 6 as heavy, unskilled work with a specific vocational preparation rating of two, who: 7 has no exertional limits; can understand and remember only simple instructions; has 8 sufficient concentration, persistence, and pace to complete simple, routine tasks for a 9 normal workday and work week; should work in a non-public setting but is able to 10 interact with co-workers and accept supervision. AR 103. The VE responded that 11 an individual as the ALJ described could perform the past relevant work as a janitor 12 and could also work as a laboratory helper, hand packager, or kitchen helper. AR 13 104. 14 The ALJ also posed a second hypothetical involving an individual of the same 15 age and education as Plaintiff with the past relevant work as established who: has no 16 exertional limits but can understand and remember only simple instructions; has 17 sufficient concentration, persistence, and pace to complete simple, routine tasks in 18 two hour increments for a normal workday and work week with normal breaks; is 19 able to tolerate routine superficial interactions with the general public and a small 20 group of co-workers; is able to accept supervision delivered in a normative fashion; 21 can adapt to a routine work setting and should avoid normal hazards in the ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 workplace; and will be off task twenty or more percent of the time. AR 104−05. 2 The VE testified that an individual with those characteristics would not be able to 3 sustain competitive employment. AR 105. Plaintiff’s attorney then asked the VE to 4 consider the hypothetical of an individual with Plaintiff’s age, education, and work 5 experience, who would miss work either two days or more per month or engage in 6 off-task behavior greater than ten percent of the workday. AR 106. The VE opined 7 that, in either scenario, the individual would not be able to sustain competitive 8 employment. Id. 9 10 11 C. ALJ’s Decision On June 28, 2016, the ALJ issued an unfavorable decision. AR 28−39. Applying the five-step evaluation process, Judge Hoenninger found: 12 Step one: Lester met the insured status requirements of the Social Security 13 Act through June 30, 2008, and has not engaged in substantial gainful activity 14 since the alleged onset date of March 1, 2006. 15 Step two: Lester has the following severe impairments: attention deficit 16 hyperactivity disorder, anxiety disorder, panic disorder, and alcohol abuse. 17 Lester has no severe physical impairments. 18 Step three: Lester’s mental impairments meet Listings 12.02, 12.06, and 19 12.09 of 20 CFR Part 404, Subpart P, Appendix 1. The “paragraph A” criteria 20 are met because Lester “has a history of depression; panic attacks; shortness 21 of breath; racing heart rate; inability to function; inability to be in public ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 places and be around people; fear of public places and fear of being alone; 2 fear of sleeping because of nightmares; fear of his heart; difficulty of [sic] 3 getting along with others; difficulty with sleep; low energy; and poor 4 concentration.” AR 31. The “paragraph B” criteria are met because Lester 5 has a marked difficulty engaging in his activities of daily living, functioning 6 in social interactions, and maintaining concentration, persistence, or pace. 7 Based on the ALJ’s determination of how much weight and consideration to 8 allocate to the various medical evidence in the record, the ALJ concluded that 9 Lester’s substance use during the relevant period involved overconsumption 10 of alcohol and use of prescribed amphetamines in high doses. The ALJ 11 proceeded to conclude that the limitations remaining if Lester were to cease 12 his substance and alcohol use would amount to a severe impairment or 13 combination of impairments. However, those limitations would not meet or 14 medically equal any of the impairments enumerated in the Listings. 15 Therefore, the ALJ proceeded to determine Lester’s RFC. 16 Residual Functional Capacity (“RFC”): The ALJ found that “if the 17 claimant stopped the substance use,” Lester has the RFC to 18 19 20 21 perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant can understand and remember simple instructions; has sufficient concentration, persistence, and pace to complete simple, routine tasks in two hour increments for a normal workday and workweek with normal breaks; is able to tolerate routine, superficial interactions with the general public and a small group of coworkers; is able ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 to accept supervision delivered in a normative fashion; can adapt to a routine work setting and should avoid normal hazards in the workplace. 2 3 AR 35−36. 4 Step four: Lester is able to perform past relevant work as a janitor, if he were 5 to cease substance use. The ALJ continued, “[t]his work does not require the 6 performance of work-related activities precluded by the residual functional 7 capacity the claimant would have if he stopped the substance use (20 CFR 8 404.1565 and 416.965).” AR 38. 9 Step five: Lester’s substance use is a contributing factor material to the 10 determination of disability. Lester has not been disabled within the meaning 11 of the Social Security Act at any time from the alleged onset date through the 12 date of the ALJ’s decision. 13 The ALJ’s decision became the final decision of the Commissioner when the 14 15 Appeals Council denied Plaintiff’s request for review on April 13, 2018. AR 1−3. APPLICABLE LEGAL STANDARDS 16 A. Standard of Review 17 Congress has provided a limited scope of judicial review of a Commissioner’s 18 decision. 42 U.S.C. § 405(g). A court may set aside the Commissioner’s denial of 19 benefits only if the ALJ’s determination was based on legal error or not supported by 20 substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing 21 42 U.S.C. § 405(g)). “The [Commissioner’s] determination that a claimant is not ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 disabled will be upheld if the findings of fact are supported by substantial evidence.” 2 Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)). 3 Substantial evidence is more than a mere scintilla, but less than a preponderance. 4 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975); McCallister v. 5 Sullivan, 888 F.2d 599, 601–02 (9th Cir. 1989). Substantial evidence “means such 6 evidence as a reasonable mind might accept as adequate to support a conclusion.” 7 Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted). “[S]uch 8 inferences and conclusions as the [Commissioner] may reasonably draw from the 9 evidence” will also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 10 1965). On review, the court considers the record as a whole, not just the evidence 11 supporting the decisions of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 12 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)). 13 It is the role of the trier of fact, not the reviewing court, to resolve conflicts in 14 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 15 interpretation, the court may not substitute its judgment for that of the 16 Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999); Allen v. 17 Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Nevertheless, a decision supported by 18 substantial evidence will still be set aside if the proper legal standards were not 19 applied in weighing the evidence and making a decision. Brawner v. Sec’y of Health 20 and Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). Thus, if there is substantial 21 evidence to support the administrative findings, or if there is conflicting evidence ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 that will support a finding of either disability or nondisability, the finding of the 2 Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229–30 (9th Cir. 3 1987). 4 B. Definition of Disability 5 The Social Security Act defines “disability” as the “inability to engage in any 6 substantial gainful activity by reason of any medically determinable physical or 7 mental impairment which can be expected to result in death or which has lasted or 8 can be expected to last for a continuous period of not less than 12 months.” 42 9 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a claimant shall 10 be determined to be under a disability only if his impairments are of such severity 11 that the claimant is not only unable to do his previous work, but cannot, considering 12 the claimant’s age, education, and work experiences, engage in any other substantial 13 gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 14 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 15 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 16 C. Sequential Evaluation Process 17 The Commissioner has established a five-step sequential evaluation process 18 for determining whether a claimant is disabled. 20 C.F.R. § 416.920. Step one 19 determines if he is engaged in substantial gainful activities. If the claimant is 20 engaged in substantial gainful activities, benefits are denied. 20 C.F.R. §§ 21 404.1520(a)(4)(i), 416.920(a)(4)(i). ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 If the claimant is not engaged in substantial gainful activities, the decision 2 maker proceeds to step two and determines whether the claimant has a medically 3 severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 4 416.920(a)(4)(ii). If the claimant does not have a severe impairment or combination 5 of impairments, the disability claim is denied. 6 If the impairment is severe, the evaluation proceeds to the third step, which 7 compares the claimant’s impairment with a number of listed impairments 8 acknowledged by the Commissioner to be so severe as to preclude any gainful 9 activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); see also 20 C.F.R. 10 § 404, Subpt. P, App. 1. If the impairment meets or equals one of the listed 11 impairments, the claimant is conclusively presumed to be disabled. 12 If the impairment is not one conclusively presumed to be disabling, the 13 evaluation proceeds to the fourth step, which determines whether the impairment 14 prevents the claimant from performing work that he has performed in the past. If the 15 plaintiff is able to perform his previous work, the claimant is not disabled. 20 C.F.R. 16 §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s RFC 17 assessment is considered. 18 If the claimant cannot perform this work, the fifth and final step in the process 19 determines whether the claimant is able to perform other work in the national 20 economy in light of his residual functional capacity and age, education, and past 21 ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. 2 Yuckert, 482 U.S. 137, 142 (1987). 3 The initial burden of proof rests upon the claimant to establish a prima facie 4 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 5 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 6 is met once the claimant establishes that a physical or mental impairment prevents 7 him from engaging in his previous occupation. Meanel, 172 F.3d at 1113. The 8 burden then shifts, at step five, to the Commissioner to show that (1) the claimant 9 can perform other substantial gainful activity, and (2) a “significant number of jobs 10 exist in the national economy” which the claimant can perform. Kail v. Heckler, 722 11 F.2d 1496, 1498 (9th Cir. 1984). 12 ISSUES ON APPEAL 13 The parties’ motions raise the following issues regarding the ALJ’s decision: 14 1. Did Plaintiff establish disability prior to his date last insured? 2. Did the ALJ erroneously find that Plaintiff’s controlled substance use was material? 3. Did the ALJ improperly reject the opinions of Plaintiff’s medical providers? 4. Did the ALJ erroneously reject Plaintiff’s subjective symptom testimony? 15 16 17 Date last insured 18 As a preliminary matter, the Commissioner raises as an issue in its motion for 19 summary judgment that the record does not contain any evidence of disability, 20 absent substance use, prior to Plaintiff’s date last insured of June 30, 2008. ECF No. 21 ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 18 at 4. Plaintiff replies that the “Court may look only to the reasons provided by 2 the ALJ in the decision and may not affirm on a ground on which the ALJ did not 3 rely.” ECF No. 19 (citing Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)). 4 The Court agrees with Plaintiff that the Court may not affirm the ALJ’s 5 determination on a ground upon which she did not rely. See Orn v. Astrue, 495 F.3d 6 625, 630 (9th Cir. 2007) (“We review only the reasons provided by the ALJ in the 7 disability determination and may not affirm the ALJ on a group upon which he did 8 not rely.”). 9 Alcohol and substance use 10 Once an ALJ considers all of a claimant’s medically determinable 11 impairments and determines that the claimant is disabled, if the record contains 12 medical evidence showing drug addiction or alcoholism, then the ALJ must further 13 determine whether the substance use is “material” to the finding that the claimant is 14 disabled. 20 C.F.R. § 404.1535; see also 42 U.S.C. § 423(d)(2)(C) (providing that a 15 claimant shall not be considered disabled if alcoholism or drug addiction is a 16 contributing factor material to the disability determination). 17 The test for materiality is whether an individual would still be found disabled 18 if he stopped using drugs or alcohol. See 20 C.F.R. §§ 404.1535(b); 416.935(b); 19 Parra v. Astrue, 481 F.3d 742, 746−47 (9th Cir. 2007). The ALJ must “evaluate 20 which of [the claimant’s] current physical and mental limitations . . . would remain 21 if [the claimant] stopped using drugs or alcohol and then determine whether any or ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 all of [the claimant’s] remaining limitations would be disabling.” 20 C.F.R. §§ 2 404.1535(b)(2), 416.935(b)(2). If the claimant’s remaining limitations are disabling, 3 then the substance and alcohol abuse is not a material contributing factor to the 4 determination of disability, and the individual is disabled, independent of his drug 5 abuse or alcoholism. See 20 C.F.R. §§ 404.1535(b)(2)(ii), 416.935(b)(2)(ii). The 6 claimant bears the burden of proving that the substance use is not a contributing 7 factor material to his disability. Parra, 481 F.3d at 748. 8 In this case, the ALJ relied primarily on the testimony of medical expert Dr. 9 Sherman to find that Plaintiff’s impairments would not meet any listing if he stopped 10 his substance and alcohol abuse, and to find that, despite having severe impairments 11 that would persist in the absence of substance or alcohol abuse, Plaintiff nevertheless 12 would have an RFC to perform a full range of work at all exertional levels. AR 13 31−35. 14 Plaintiff argues that the ALJ erred in treating Plaintiff’s use of “amphetamines 15 in high doses” as “substance abuse,” AR 32, without evidence to support that 16 Plaintiff ingested amphetamines any way other than as prescribed. ECF No. 11 at 5. 17 Plaintiff also argues that occasional maladaptive use of alcohol, and self-reports of 18 alcohol use, also are insufficient to support an ALJ’s finding of a medically- 19 determinable alcohol abuse disorder. Id. at 6−7. 20 21 ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 In 2013, the Social Security Administration issued Social Security Ruling 13- 2 2p, 2013 SSR LEXIS 2, 2013 WL 621536 (S.S.A. Feb. 20, 2013) (“SSR 13-2p”) 3, to 3 explain the agency’s policies regarding whether a claimant’s drug addiction or 4 alcoholism is material to the determination of disability. 5 Relevant to the ALJ’s decision here, an ALJ may not base a determination that 6 a claimant suffers from drug addiction or alcoholism on a claimant’s self-reports 7 alone. SSR 13-2p, 2013 SSR LEXIS 2 at *30. Rather, an ALJ must rely on 8 objective medical evidence, from an acceptable medical source, to conclude that a 9 claimant has a maladaptive pattern of substance use that amounts to a medically 10 determinable substance use disorder. Id. Furthermore, maladaptive substance use 11 does not include addiction to or use of prescription medications taken as prescribed. 12 Id. at *7. Even once alcohol and drug abuse is properly established, SSR 13-2p 13 provides that an ALJ may not rely exclusively on a medical expert’s testimony and 14 the nature of claimant’s mental disorder to determine that drug and alcohol abuse is 15 material. Id. at *26. 16 The ALJ’s conclusions regarding Lester’s drug and alcohol use are not 17 supported by the weight of the evidence in the record or even, with respect to some 18 3 19 20 21 Social Security Rulings do not carry the force of law. Lockwood v. Comm’r, 616 F.3d 1068, 1073 (9th Cir. 2015). However, they “are entitled to respect . . . to the extent that those interpretations have the power to persuade.” Id. (citing Christensen v. Harris County, 529 U.S. 576, 587 (2000) and Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 of the conclusions, by the medical expert witness testimony cited by the ALJ in 2 support. The following excerpt from the ALJ’s decision is illustrative of the ALJ’s 3 error in her treatment of Dr. Sherman’s testimony and her conclusions regarding 4 Plaintiff’s alcohol and substance use: 5 6 7 8 9 10 11 12 13 14 15 16 Dr. Sherman noted that medical evidence of record indicates that since 2007, the claimant’s alcohol abuse was an issue (Ex. 4F/63). Dr. Sherman pointed out that the claimant has been prescribed huge doses of Adderall for his ADHD, doses that well exceed the acceptable dosage. Side effects from that amount of amphetamine can cause psychiatric and physical symptoms. Furthermore, the record globally states that he got no treatment for his alcohol abuse and he was never involved with any psychiatric treatment other than drug treatment. Without any confirmation of the fact that his blood levels do not substantiate his use of alcohol, one has to assume that the use of alcohol continued. Both the amphetamine and alcohol use lead to anxiety disorders. Furthermore, Dr. Sherman noted that the record indicates that the claimant continued to use alcohol occasionally in 2015 (Ex. 10F/2). Additionally, in 2013 and 2014, there were indications of alcohol abuse in the record (Ex. 7F/40, 29). Dr. Sherman noted that the claimant may have been minimizing his alcohol use in his reports to medical providers and examiners. ... AR 32. A non-examining medical expert’s opinions alone cannot constitute 17 substantial evidence to justify an ALJ’s rejection of an examining or treating 18 physician’s opinion. Morgan v. Comm’r, 169 F.3d 595, 602 (9th Cir. 1999). To 19 amount to the requisite substantial evidence, the medical expert’s testimony must be 20 corroborated by independent clinical findings or other evidence in the record. See 21 Magallanes v. Bowen, 881 F.2d 747, 751−55 (9th Cir. 1989); Thomas v. Barnhart, ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 278 F.3d 947, 957 (9th Cir. 2002). However, the other evidence in the record that 2 the ALJ cited to support Dr. Sherman’s opinion that Plaintiff’s “alcohol abuse” was 3 an issue since 2007 is an office visit recorded by a physician in April 2012. AR 421 4 (Ex. 4F at 63). In addition, the conclusion during the office visit regarding alcohol 5 abuse was based primarily on a self-report by Plaintiff that he drank “a fifth of 6 alcohol a day” at the time. Id. 7 The excerpt further demonstrates error in that the ALJ relied on Plaintiff’s use 8 of prescription medication as prescribed to find substance abuse, and does not 9 distinguish between mere use of alcohol and alcohol abuse. SSR 13-2p, 2013 SSR 10 11 LEXIS 2 at *7, 30. There must be a pattern of maladaptive use. Id. Finally, the last sentence of the excerpt mischaracterizes Dr. Sherman’s 12 testimony. Rather than “not[ing] that the claimant may have been minimizing his 13 alcohol use in his reports to medical providers and examiners,” AR 32, Dr. Sherman 14 testified, “We don’t know if he’s minimizing[,]” AR 64. The ALJ’s determination 15 relied entirely on Plaintiff’s self-reports to establish alcohol abuse as an impairment 16 and also noted that “there is nothing in the record to support that the claimant has 17 stopped abusing alcohol other than the claimant’s self-report . . . .” AR 37. The 18 ALJ’s determination that Plaintiff had a clinically significant alcohol abuse 19 impairment needed to be based on more than Plaintiff’s self-reports and the 20 conclusory opinions of a non-examining medical expert. 21 ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 Moreover, when the ALJ determined Plaintiff’s RFC, the ALJ found 2 materiality based on the premise that Plaintiff stopped drinking in early to mid-2015. 3 AR 34−35. However, Plaintiff testified only that he had last drunk alcohol 4 approximately eight months to one year before the hearing. Comparing Plaintiff’s 5 daily activities at the time of the hearing with those before 2015 rests on a 6 conclusion unsupported by substantial evidence that Plaintiff was abusing alcohol up 7 until 2015. Therefore, the ALJ did not rely on sufficient evidence to conclude that 8 Plaintiff’s co-occurring mental disorders were not disabling in the absence of drug 9 and alcohol abuse. See SSR 13-2, 2013 SSR LEXIS 2 at *26. 10 The ALJ’s treatment of both the issue of whether Plaintiff’s drug and alcohol 11 use is material and the opinion evidence of the medical expert is marred by legal 12 error and should not be affirmed. See Stout v. Comm’r, 454 F.3d 1050, 1052 (9th 13 Cir. 2006) (finding that a district court should uphold an ALJ’s disability 14 determination unless it contains a legal error). 15 Remaining issues 16 The Court does not address the parties’ arguments regarding the treatment of 17 the remaining medical evidence or the treatment of Plaintiff’s subjective complaints 18 because those issues may be affected by the ALJ’s treatment of Plaintiff’s alcohol 19 consumption and any non-examining medical expert testimony on remand. 20 / / / 21 / / / ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 Request for remand for benefits 2 Generally, the appropriate course upon finding error in the Commissioner’s 3 determination of a claimant’s application is to “remand to the agency for additional 4 investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 5 2004) (internal citation omitted). A court should take the exceptional step of 6 remanding for an immediate award of benefits only where: 7 (1) The ALJ has failed to provide legally sufficient reasons for rejecting . . . evidence [probative of disability], (2) there are not 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. 8 9 10 Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (internal quotation 11 omitted). 12 Because of the ALJ’s erroneous analysis of the alcohol and drug use issue, 13 and corresponding erroneous approach to the medical evidence, questions persist 14 regarding Plaintiff’s degree of impairment throughout the relevant period. The 15 Court does not find that the record as a whole compels a finding that Plaintiff is 16 disabled. To the contrary, evidence in the administrative record suggests that 17 Plaintiff may not be disabled. See Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 18 2014) (remand for benefits is appropriate where “an evaluation of the record as a 19 whole creates serious doubt that a claimant is, in fact, disabled.”). 20 / / / 21 ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 Accordingly, IT IS HEREBY ORDERED: 2 1. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is GRANTED IN 3 PART with respect to remand and DENIED IN PART with respect to 4 remanding with instructions to credit any particular evidence as true and 5 award benefits. 6 2. Defendant’s Motion for Summary Judgment, ECF No. 18, is DENIED. 7 3. The matter is REMANDED to the Commissioner for additional 8 proceedings consistent with this Order. 9 4. Judgment shall be entered for Plaintiff. 10 11 12 IT IS SO ORDERED. The District Court Clerk is directed to enter this Order, provide copies to counsel, and close the file. DATED April 22, 2019. 13 14 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 15 16 17 18 19 20 21 ORDER GRANTING IN PART PLAINTIFF’S AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20
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