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Trice v. Astrue

May 13, 2009

JONNE TRICE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate T Judge

MEMORANDUM DECISION AND ORDER

I. PROCEEDINGS

This matter is before the Court for review of the decision by the Commissioner of Social Security denying plaintiff's application for Supplemental Security Income ("SSI"). Pursuant to 28 U.S.C § 636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The plaintiff and the defendant have filed their pleadings, the defendant has filed the certified transcript of record, and the parties have filed a Joint Stipulation. After reviewing the matter, the Court concludes that the Decision of the Commissioner should be affirmed.

II. BACKGROUND

Plaintiff filed an application for SSI on June 28, 2005 alleging disability since June 21, 1999 due to schizophrenia and a learning disability. (Administrative Record ("AR") 303-05). Plaintiff's application was denied initially on August 4, 2005 (AR 246-49) and on reconsideration on June 8, 2006 (AR 256-60). Plaintiff filed a timely Request for Hearing and such hearing was held on September 11, 2007 (AR 1151-84). An Administrative Law Judge ("ALJ") issued an unfavorable Decision dated September 19, 2007 (AR 48-60). Plaintiff filed a timely Request for Review of Hearing Decision/Order and the Appeals Council denied review on January 9, 2008 (AR 42-44). This action followed.

Plaintiff makes five challenges to the ALJ's determination. Plaintiff alleges that the ALJ erred by failing: (1) to consider the opinion of plaintiff's treating psychiatrist; (2) to consider the attending psychiatrist's diagnosis; (3) to consider the findings of the Consultative Examiner; (4) to comply with Social Security Ruling 96-7p regarding the type, dosage, and side effect of medications; and (5) to consider plaintiff's mental impairment. The first three issues, as well as the fifth issue, will be considered together, as they are interrelated.

III. DISCUSSION

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence must be more than a mere scintilla, but not necessarily a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). This Court cannot disturb the Commissioner's findings if those findings are supported by substantial evidence, even though other evidence may exist which supports plaintiff's claim. See Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973); Torske v. Weinberger, 417 U.S. 933 (1974); Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir. 1971).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision and "may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006) (quoting Stout v. Comm'r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)).

ISSUES Nos. 1-3 and 5: The ALJ properly considered plaintiff's treating psychiatrist, attending psychiatrist, and Consultative Examiner's diagnoses of schizoaffective disorder.

Plaintiff contends that the ALJ failed to consider the findings of (1) plaintiff's former treating psychiatrist, Dr. Nabil Faltas, (2) plaintiff's former attending psychiatrist (signature illegible), and (3) the Consultative Examiner, Dr. Andrew J. Rooks -- all of whom diagnosed plaintiff with schizoaffective disorder.*fn1 Plaintiff argues that the ALJ may not ignore their findings and must consider their findings as opinion evidence. In Issue 5, plaintiff contends that the ALJ failed to properly consider plaintiff's mental impairment.

In response, defendant contends that the ALJ properly relied on medical expert testimony, and fairly considered the remaining medical evidence. Moreover, defendant contends that plaintiff's reliance on medical evidence generated several years before she applied for SSI benefits is irrelevant and immaterial.

Generally, a treating physician's conclusions "must be given substantial weight." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). "If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence." Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1998 (9th Cir. 2008) (citations omitted). Here, the ALJ found that plaintiff suffers from severe impairments of alcohol and drug abuse that met sections 12.02 and 12.09 of the Listing of Impairments. See 20 C.F.R. Pt. 404, Subpt. P, App 1, §§ 12.02, 12.09 (2009) (AR 53-54). In reaching his determination, the ALJ ultimately relied upon the opinion of Dr. Joseph Malancharuvil, the medical expert witness, who found that plaintiff's substance abuse was the reason the plaintiff was disabled under Listings 12.02 and 12.09. Specifically, the ALJ explained that Dr. Malancharuvil's testimony regarding plaintiff's limitations "with and without drug and alcohol abuse was given great weight because [Dr. Malancharuvil] had an opportunity to review the entire record, including the testimony of the claimant and her mother." (AR 54).

Additionally, the ALJ found that plaintiff's lengthy history of drug and alcohol abuse elicited psychotic behavior, depression, and schizophrenia, among other symptoms. (AR 54) . Contrary to plaintiff's contentions, the ALJ cited to substantial evidence in plaintiff's medical records to reach this conclusion, including the 2003 findings of Dr. Faltas, plaintiff's attending psychiatrist and of Dr. Rooks. (AR 54, citing Exhibits C11F [AR 630-650], C20F [AR 725-754], C22F [AR 758-785] and C35F [AR 881-899]). Thus, even though the ALJ arrived at a conclusion different from those of Dr. Faltas and Dr. Rooks, it cannot be said that the ALJ failed to consider such findings and diagnoses, nor did the ALJ materially err by failing to defer to a discharge summary dated December, 2000, which diagnosed schizoaffective disorder, (with a secondary diagnosis of "R/O substance induced psychosis"). The ...


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