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Barrera v. Astrue


June 30, 2009


The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge


The parties have consented, under 28 U.S.C. § 636(c), to the jurisdiction of the undersigned Magistrate Judge. Plaintiff seeks review of the Commissioner's denial of disability benefits. As discussed below, the court finds that the Commissioner's decision should be reversed and this matter remanded for further proceedings.


Plaintiff Tammy Barrera was born on December 12, 1964, and was forty-three years old at the time of her last administrative hearing. [Administrative Record ("AR") 64, 143.] She has a high school education and past relevant work experience as an executive administrative secretary. [AR 18.] Plaintiff alleges disability on the basis of bipolar disorder. [AR 86.]


Plaintiff's complaint was lodged on September 29, 2008, and filed on October 14, 2008. On April 22, 2009, Defendant filed an Answer and Plaintiff's Administrative Record ("AR"). On June 19, 2009, the parties filed their Joint Stipulation ("JS") identifying matters not in dispute, issues in dispute, the positions of the parties, and the relief sought by each party. This matter has been taken under submission without oral argument.


Plaintiff applied for disability insurance benefits ("DIB") under Title II of the Social Security Act on December 14, 2005, alleging disability since October 4, 2005. [AR 11.] After the application was denied initially, Plaintiff requested an administrative hearing, which was held on November 5, 2007, before Administrative Law Judge ("ALJ") Helen E. Hesse. [AR 21.] Plaintiff appeared with counsel, and testimony was taken from Plaintiff, medical expert Craig Rath, and vocational expert Steven Berry. [AR 22.] A supplemental hearing was held on April 21, 2008. [AR 64.] Plaintiff appeared with counsel and testified. [AR 65.] The ALJ denied benefits in a decision filed on July 25, 2008. [AR 11-20.] When the Appeals Council denied review on September 19, 2008, the ALJ's decision became the Commissioner's final decision. [AR 1-3.]


Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's (or ALJ's) findings and decision should be upheld if they are free of legal error and supported by substantial evidence. However, if the court determines that a finding is based on legal error or is not supported by substantial evidence in the record, the court may reject the finding and set aside the decision to deny benefits. See Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). "Substantial evidence is more than a scintilla, but less than a preponderance." Reddick, 157 F.3d at 720. It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. To determine whether substantial evidence supports a finding, a court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id. "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162.



To be eligible for disability benefits a claimant must demonstrate a medically determinable impairment which prevents the claimant from engaging in substantial gainful activity and which is expected to result in death or to last for a continuous period of at least twelve months. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 721; 42 U.S.C. § 423(d)(1)(A).

Disability claims are evaluated using a five-step test:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.

Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.

Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.

Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.

Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 96 L.Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 C.F.R. § 404.1520, § 416.920. If a claimant is found "disabled" or "not disabled" at any step, there is no need to complete further steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520.

Claimants have the burden of proof at steps one through four, subject to the presumption that Social Security hearings are non-adversarial, and to the Commissioner's affirmative duty to assist claimants in fully developing the record even if they are represented by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 1288. If this burden is met, a prima facie case of disability is made, and the burden shifts to the Commissioner (at step five) to prove that, considering residual functional capacity ("RFC")*fn1, age, education, and work experience, a claimant can perform other work which is available in significant numbers. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920.


Here, the ALJ found that plaintiff had not engaged in substantial gainful activity since her alleged disability onset date (step one); that plaintiff had "severe" impairments, namely bipolar disorder and history of substance abuse (step two); and that plaintiff did not have an impairment or combination of impairments that met or equaled a "listing" (step three). [AR 13.] The ALJ determined that Plaintiff had an RFC "to perform a full range of work at all exertional levels but with the following non-exertional limitations: she is precluded from climbing ladders. She should avoid unprotected heights, dangerous or fast moving machinery, and open pools of water. She can work where no hypervigilence is required, and she is not in charge of safety operations of others, she has no intense interpersonal interactions, she does not supervise others, with no high production, quota or rapid assembly line work. She can work at a moderate pace." [AR 14.] Plaintiff was unable to perform any past relevant work (step four). [AR 18.] The vocational expert testified that a person with Plaintiff's RFC could perform other work in the national economy, such as laundry worker II, kitchen helper and packager (step five). [AR 19.] Accordingly, the ALJ found that Plaintiff was not under a disability, as defined by the Social Security Act, through the date of the decision. [Id.]


The parties' Joint Stipulation raises five disputed issues:

1. Whether the ALJ properly considered the opinion of Plaintiff's treating physician, Dr. Brett R. Williams;

2. Whether the ALJ properly considered the opinion of Plaintiff's treating physician, Dr. Hanaa Wadie Fam;

3. Whether the ALJ properly considered Plaintiff's mental impairment;

4. Whether the ALJ properly considered Plaintiff's seizure disorder; and

5. Whether the ALJ properly considered Plaintiff's testimony. [JS 2-3.]

As discussed below, Issue Four is dispositive.


In March 2007, Plaintiff underwent a Neurologic Evaluation conducted by Dr. Paul Maistros. [AR 310-11.] Plaintiff complained of "blackouts" that started approximately one year earlier. [AR 310.] Plaintiff's history of bipolar disorder and migraines was noted. [Id.] Upon neurologic examination, Dr. Maistros noted a clinical impression of "trance-like behavior associated with fugue states, episodes of partial complex seizures, and some kind of alternative behavior of undetermined etiology, or even toxic effect from medication" and recommended further testing. [AR 311.] The next day, an electroencephalogram revealed an "abnormal EEG with slightly disorganized background activity and paroxysmal sharp discharges with epileptiform potential." [AR 312.] In April 2007, Dr. Maistros gave an assessment of "partial complex seizures" and prescribed Topamax for Plaintiff's migraines. [AR 304.] A few days later, an MR Imaging of Plaintiff's brain was "essentially negative" but with the possibility of a "small calcification" that could either be "of little significance" or "a small focus of cysticercosis." [AR 305-06.] In June 2007, Dr. Maistros noted that Plaintiff had not had any seizures since her prior visit and that "overall, things are settling down, and the headaches are significantly less." [AR 303.] However, Dr. Maistros diagnosed Plaintiff with a seizure disorder and recommended that Plaintiff continue with her medication management. [Id.] The ALJ rejected Dr. Maistros' opinion as "unreliable" because "the issue of [Plaintiff's] drug abuse was never addressed by Dr. Maistros" and "he was apparently unaware of the full parameters of this claimant." [AR 17.]

It is well-settled in the Ninth Circuit that the opinion of a treating physician, even if contradicted by opinions offered by other medical sources, cannot be rejected unless the Commissioner provides "specific and legitimate reasons" supported by substantial evidence in the record. Lester, 81 F.3d at 830. Such reasons were not provided here with respect to the opinion of Dr. Maistros. The Commissioner's complete rejection of the opinion was not supported by the record: no medical professional called into question the evidentiary value of Dr. Maistros' opinion based on his supposed ignorance of Plaintiff's drug history, much less provided a basis to reject the opinion in its entirety. Even assuming that there was some basis to question Dr. Maistros' opinion on the grounds cited by the Commissioner, rejection of this evidence was improper at this stage of the five-step inquiry. See Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001)("[A]n ALJ must first conduct the five-step inquiry without separating out the impact of alcoholism and drug addiction"). Accordingly, reversal is required.


The decision whether to remand for further proceedings is within the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 1175-1178 (9th Cir. 2000). Where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Harman, 211 F.3d at 1179 (decision whether to remand for further proceedings turns upon their likely utility). However, where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled and entitled to benefits if all the evidence were properly evaluated, remand is appropriate. Id.

Here, because specific and legitimate reasons based on substantial evidence in the record were not provided to reject Dr. Maistros' opinion, it is credited as true. Harman, 211 F.3d at 1178; Lester, 81 F.3d at 834. Even so, however, Plaintiff's entitlement to benefits is not clear because Dr. Maistros offered no clear opinion as to whether Plaintiff had any functional limitations as a result of her seizures which would direct a finding of disability on the basis of the current record. Moreover, even if such a finding were directed, it would not direct an automatic award of benefits in light of unresolved questions as to whether Plaintiff continues to use drugs and alcohol and, if so, whether such use is a contributing factor material to a finding of disability. See Bustamante, 262 F.3d at 954. Under these circumstances, outstanding issues remain before a finding of disability can be made.*fn2 Accordingly, remand is appropriate.


Accordingly, IT IS ORDERED that:

1. The decision of the Commissioner is REVERSED.

2. This action is REMANDED to defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above.

3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel.

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