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April 17, 2003


The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge

Plaintiff Robert Brannon brings this action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of the Social Security Administration ("the Commissioner"). The matter is before the Court on plaintiff's motion for summary judgment and defendant's cross-motion for summary judgment. Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having considered the papers in support of and in opposition to the motions, the Court rules as follows.


On November 21, 1992, plaintiff filed concurrent applications for disability insurance benefits and Supplemental Security Income. (Certified Transcript of Record ("Tr.") at 16, 21.) These applications were approved by an Administrative Law Judge ("ALJ") in a decision dated February 8, 1995. (Tr. at 16.) In that decision, the ALJ found plaintiff disabled on the basis of alcohol and drug abuse. (Tr. at 96.) On March 29, 1996, the Social Security Act was amended to bar payment of disability benefits if drug addiction or alcoholism was a contributing factor material to the finding of disability. See 42 U.S.C. § 423(d)(2)(C). Thereafter, plaintiff was notified by the Social Security Administration ("SSA") that his benefits would terminate on January 1, 1997 because drug addiction and alcoholism were contributing factors material to the determination of disability. (Tr. at 95).*fn1 Upon plaintiff's request, the SSA conducted an eligibility redetermination and, on May 2, 1997, found that plaintiff was not disabled. (Tr. at 92-100.)

On June 30, 1997, plaintiff filed a Request for Hearing by an ALJ (Tr. at 101.) On September 5, 2001, an ALJ conducted a hearing, at which time plaintiff was represented by counsel. (Tr. at 41-70.) On November 30, 2001, the ALJ issued a decision redetermining plaintiff's eligibility for benefits in light of the amendment to the Social Security Act. The ALJ analyzed plaintiff's claim under the SSA's five-step sequential evaluation process.*fn2 The ALJ determined that plaintiff was not under a "disability" within the meaning of the amended Social Security Act. (Tr. at 21.) In so ruling, the ALJ found that although "mild degenerative changes" to plaintiff's knee constituted a "severe" impairment, plaintiff retained the functional capacity to perform his past relevant work as a truck driver. (Tr. at 17, 21.)

On January 30, 2002, plaintiff requested that the Appeals Council review the ALJ's decision. (Tr. at 7-11.) On May 22, 2002, the Appeals Council denied review. (Tr. at 5-6.) Plaintiff thereafter filed the instant action for judicial review.


The Commissioner's determination to deny disability benefits will not be disturbed if it is supported by substantial evidence and based on the application of correct legal standards. See Reddick v. Charter, 157 F.3d 715, 720 (9th Cir. 1998). "Substantial evidence means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court must consider the administrative record as a whole, and weigh both the evidence supporting and detracting from the ALJ's decision. See id. If the evidence is susceptible to more than one rational interpretation, the reviewing court will uphold the decision of the ALJ. See id.


Plaintiff argues that this matter should be remanded for further administrative proceedings. Specifically, plaintiff argues that the ALJ erred at step two in the five-step inquiry by failing to consider the reports of two health care providers, Saul Lassoff, Ph.D. ("Dr. Lassoff"), a treating psychologist, and T.M. Gragg, M.D. ("Dr. Gragg"), a state agency consultant, and by failing to consider the combined impact of plaintiff's impairments.

A. Medical Evidence

"An ALJ may reject the uncontradicted medical opinion of a treating physician only for `clear and convincing' reasons supported by substantial evidence in the record." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (quoting Reddick, 157 F.3d at 725). Where the opinions of a treating and a non-treating physician differ, and the ALJ has disregarded the treating physician's opinion, the ALJ's decision will be affirmed only "if the ALJ gives specific, legitimate reasons for doing so that are based on substantial evidence in the record." See Andrews, 53 F.3d at 1041. In either case, the ALJ must state the reasons for rejecting the opinion of a treating physician. See Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991) (holding where ALJ did not provide any reasons for rejecting opinion of treating physician, action was properly remanded for ALJ to "consider all the evidence").

Additionally, where the ALJ rejects the opinion of a nonexamining state agency consulting physician, the ALJ must provide reasons for doing so. See Social Security Ruling 96-6p, 1996 WL 374180 (providing ALJ "must explain weight given" to opinion of state agency consultant); see also Andrews, 53 F.3d at 1041 ("[G]iving the examining physician's opinion more weight than the nonexamining expert's opinion does not mean that the opinions of nonexamining sources and medical advisors are entitled to no weight.") (emphasis in original).

Here, at step two, the ALJ found that plaintiff's alleged mental impairments did not impose more than a slight impairment on plaintiff's ability to work.*fn3 The ALJ relied upon treatment records from the California Department of Corrections ("CDC") dated April 1997 through May 2001. (Tr. at 17.) The CDC physicians stated there was no indication plaintiff had a mental illness. (See Tr. at 217, 222, 233, 242, 262.) Additionally, the ALJ relied upon a consultative examination and evaluation performed by a psychologist, Michael Moseley, Ph.D. ("Dr. Moseley"), in January 1997. Dr. Moseley opined that "[a]s for [plaintiff's] assessed functional capacity, when not abusing substances, there are no impairments estimated." (See Tr. at 148.) The ALJ, however, did not address in any respect the contrary opinions of Dr. Lassoff and Dr. Gragg.

Dr. Lassoff, a psychologist, treated plaintiff from 1995 until 1996, and diagnosed plaintiff with "antisocial personality" with "impulse control problems." (See Tr. at 145.) The Commissioner, while acknowledging Dr. Lassoff provided a diagnosis, argues that such evidence is immaterial because Dr. Lassoff's diagnosis is based on examinations conducted prior to 1997 and thus is outside the relevant time period. The Commissioner cites not authority for this evidentiary proposition. Moreover, the Ninth Circuit, under circumstances similar to those presented herein, has found such records may contain relevant evidence. See Holohan, 246 F.3d at 1203-08 (holding ALJ erred by failing to credit treating physicians' opinions, which were based on 1995 and 1996 examinations, in redetermination hearing ...

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