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Wulf v. Astrue


March 31, 2009


The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge


Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying his application for Supplemental Security Income ("SSI"). Plaintiff claims that the ALJ erred when he failed to: 1) properly consider the findings of the treating psychiatrist, Dr. Andrew Janik; 2) follow the governing regulations in rating Plaintiff's mental impairment; and 3) pose a complete hypothetical question to the vocational expert. (Joint Stip. at 3-5, 7-8, 11-12.) Because the Agency's decision that Plaintiff was not disabled is not supported by substantial evidence, it is reversed and the case is remanded for further proceedings.

Plaintiff filed an application for SSI on January 31, 2005. (Administrative Record ("AR") 49-53.) The Agency denied the application initially and on reconsideration. (AR 38-48.) Plaintiff then requested and was granted a hearing before an Administrative Law Judge ("ALJ"). On October 27, 2006, Plaintiff appeared with counsel at the hearing and testified. (AR 528-51.) On January 25, 2007, the ALJ issued a decision denying the application. (AR 12-22.) After the Appeals Council denied Plaintiff's request for review, Plaintiff commenced this action.

In his first claim of error, Plaintiff contends that the ALJ did not properly consider the functional limitations found by his treating psychiatrist, Dr. Andrew Janik. (Joint Stip. at 3-5.) Plaintiff argues that the ALJ "selectively considered on[ly] the slight limitations indicated by Dr. Janik, and attempted to downplay the numerous and significant amount of moderate limitations" that the psychiatrist found. (Joint Stip. at 4.) Though the Court does not agree that the ALJ selectively focused on only the slight limitations, it finds that the ALJ did err in evaluating the medical evidence relating to the limitations caused by Plaintiff's alcoholism and concludes that, for that reason, remand is required.

Plaintiff is an alcoholic with a history of alcohol abuse. (AR 120-21.) In evaluating a disability claim filed by an alcoholic, an ALJ conducts a two-step analysis. First, he determines whether the claimant is disabled, taking into account all of his impairments, both alcohol and non-alcohol related. Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001) (citing 20 C.F.R. §§ 404.1535, 416.935). Next, he determines whether, after eliminating all of the limitations caused by the alcoholism, the claimant is still disabled. Id. If the ALJ determines that, after ignoring those limitations, the claimant can still work, then he must conclude that the claimant is not disabled. See 20 C.F.R. § 416.935 (providing that, if alcoholism is a contributing factor material to a determination of disability, the claimant will be deemed not disabled); see also Parra v. Astrue, 481 F.3d 742, 744 (9th Cir. 2007), cert. denied, 128 S.Ct. 1068 (2008). The ALJ correctly followed the right approach. He first determined that Plaintiff had severe impairments consisting of bipolar affective disorder (type 2, depressed), depression, and alcoholism. (AR 14, 18.) Next, he apparently found that Plaintiff's impairments did not meet or medically equal a Listing.*fn1 He then determined that Plaintiff's residual functional capacity would not permit him to perform past relevant work or any other work in the national economy. (AR 17-18.) Thus, he concluded that, with Plaintiff's alcohol-related impairments, Plaintiff was disabled.

The ALJ then analyzed whether Plaintiff would be disabled without the limitations caused by his alcohol abuse. He found that, if Plaintiff stopped drinking, his bipolar disorder would continue to be a severe impairment, as "evidenced by the litany of psychotropic medications he is prescribed to treat the disorder(s)," but that it would not meet or equal a Listing. (AR 18.) The ALJ ultimately concluded, however, that, absent drinking, Plaintiff would be able to work.*fn2 (AR 18-21.)

The ALJ erred when he analyzed Plaintiff's functional limitations in the absence of alcohol use. He relied on the opinion of a consultative psychiatrist, Dr. Robin Rhodes-Campbell, who examined Plaintiff on April 28, 2005, at a time when Plaintiff claimed that he had not been drinking for six months. (AR 19, 427.) She opined that Plaintiff "should have no impairment in understanding, remembering, and carrying out" both simple and detailed instructions, in making judgments on simple work-related decisions, and in relating appropriately to the public, supervisors, and co-workers. (AR 428.) Dr. Rhodes-Campbell found that Plaintiff would be mildly impaired in withstanding the stress and changes associated with an eight-hour workday. (AR 428.) The ALJ adopted these findings, thus relying on Dr. Rhodes-Campbell's opinion as to Plaintiff's limitations when he was not drinking. (AR 18, 19, 20.)

Dr. Rhodes-Campbell's opinion, however, was contradicted by the treating psychiatrist's, Dr. Janik's, opinion. Dr. Janik indicated on an evaluation form he filled out that Plaintiff would be moderately limited in most activities relating to work, including maintaining attention and concentration for extended periods; performing activities within a schedule and maintaining regular attendance; sustaining an ordinary routine without special supervision; working in coordination with others without being distracted by them; interacting appropriately with the general public; asking simple questions; accepting instructions; maintaining socially appropriate behavior; responding to changes in the work setting; and setting realistic goals. (AR 505-06.) Dr. Janik also indicated that Plaintiff would miss three or more days of work each month. (AR 506.)

The ALJ discounted Dr. Janik's opinion because he believed that it was based on the assumption that Plaintiff was still drinking. (AR 20.) But the form Dr. Janik filled out required that he make his evaluation under the opposite assumption. That form states: "Please make your assessment apart from the effects of drug or alcohol use or abuse." (AR 505.) Thus, presumably, Dr. Janik's opinion that Plaintiff was limited was based on his assumption that Plaintiff was not drinking and was not limited from drinking. (AR 505.) In Dr. Janik's view, then, even if he did not drink, Plaintiff would be moderately limited in a number of functional areas and would miss three or more days of work each month. Dr. Janik's findings were, therefore, inconsistent with those of Dr. Rhodes-Campbell, and the ALJ was required to provide specific and legitimate reasons supported by substantial evidence in the record for rejecting them. See Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). The ALJ did not do so, evidently assuming that Dr. Janik's findings could be harmonized with those of Dr. Rhodes-Campbell and, in fact, claiming to attribute "significant weight" to Dr. Janik's opinion. (AR 20.) For this reason, the matter must be remanded for the ALJ to reconsider Dr. Janik's opinion, and to determine whether Plaintiff would still be disabled if he stopped drinking.*fn3

In his second claim of error, Plaintiff contends that the ALJ failed to follow the "special technique" set forth in 20 C.F.R. § 404.1520a for evaluating the severity of mental impairments and, in particular, did not set forth the ALJ's findings as to Plaintiff's functional limitations as a result of his mental impairment. (Joint Stip. at 7-8, citing 20 C.F.R. §§ 404.1520a(b)(2), (c)(3)-(4), (e)(2).) Though this might not warrant remand in and of itself, in light of the fact that the Court is remanding the case on another issue, the Agency should take another look at this issue as well. See 20 C.F.R. § 404.1520a (e)(2) ("At the administrative law judge hearing . . . the written decision must incorporate the pertinent findings and conclusions based on the [aforementioned] technique."); see also Moore v. Barnhart, 405 F.3d 1208, 1214 (11th Cir. 2005) (holding that, where claimant presented a colorable claim of mental impairment, ALJ's failure to follow prescribed special technique required remand).

In his third claim of error, Plaintiff contends that the ALJ failed to pose a complete hypothetical question to the vocational expert by failing to incorporate Dr. Janik's limitations in the hypothetical. (Joint Stip. at 11-12.) This issue is reserved for the ALJ on remand. If he adopts Dr. Janik's opinion, he should include in the hypothetical question to the vocational expert those limitations found by Dr. Janik. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006). If he rejects Dr. Janik's opinion, he need not include those limitations. See, e.g., Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005); Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001).

For the foregoing reasons, the Agency's decision is reversed and the case is remanded for further proceedings consistent with this Memorandum Opinion and Order.


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