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Tornavacca v. Astrue

September 28, 2009

MICHAEL TORNAVACCA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM OF DECISION

Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's applications for supplemental security income benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The parties are familiar with the procedural facts, which are summarized in the Joint Stipulation. [See JS 2]. Following an administrative hearing in June 2006, an administrative law judge ("ALJ") denied benefits in a September 2006 written hearing decision that constitutes the Commissioner's final decision. [JS 2; Administrative Record ("AR") 17-25]. The ALJ found that plaintiff had the following impairments, which were severe in combination: mood disorder not otherwise specified, chronic polysubstance abuse in remission since October 2005 by history, morbid obesity, residuals of left shoulder surgeries, mild degenerative changes in the cervical spine, hepatitis C virus infection, and history of lumbar spine strain. [AR 19]. The ALJ determined that plaintiff's substance abuse and his mental impairment met or medically equaled the criteria for "substance addiction disorder" in section 12.09 of the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, from October 2004 to October 2005.*fn1 [AR 19-21]. The ALJ concluded, however, that plaintiff's substance abuse was in remission after October 2005 and that his mental impairment did not meet or equal the listing before October 2004 or after October 2005. Accordingly, the ALJ found that plaintiff would not have been disabled during that period if he had stopped using drugs and alcohol, and that plaintiff's substance abuse was a contributing factor material to the determination of disability from October 2004 to October 2005, precluding an award of benefits for that period. [AR19-21]. The ALJ found that at other relevant times, plaintiff retained the residual functional capacity ("RFC") to perform a narrowed range of light work, and that his RFC did not preclude him from performing work available in significant numbers in the national economy. [AR 21-25].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).

Discussion

Substance abuse as a contributing factor material to the determination of disability A claimant who otherwise meets the definition of disability under the Social Security Act is not eligible to receive disability benefits if drug addiction or alcoholism is a "contributing factor material to the determination of disability." 20 C.F.R. §§ 404.1535(a), 416.935(a). If the Commissioner finds that the claimant is disabled and has medical evidence of the claimant's drug addiction or alcoholism, the Commissioner must determine if the claimant would still be disabled if he or she stopped using drugs or alcohol. 20 C.F.R. §§ 404.1535(b), 416.935(b); Parra v. Astrue, 481 F.3d 742, 747 (9th Cir. 2007), cert. denied, 128 S.Ct. 1068 (2008). If a claimant would still be disabled if he or she stopped using drugs or alcohol, the claimant's drug or alcohol addiction is not a contributing factor material to the determination of disability, and benefits may be awarded. 20 C.F.R. §§ 404.1535(b), 416.935(b).

A two-step analysis is required to determine whether substance abuse is a material contributing factor. The ALJ first must determine which of the claimant's disabling limitations would remain if the claimant stopped using drugs or alcohol, and then must determine whether the remaining limitations would be disabling. If the remaining limitations are disabling, then the claimant's drug addiction or alcoholism is not a material factor to the determination of disability. 20 C.F.R. §§ 404.1535(b)(2), 416.935(b)(2); Parra, 481 F.3d at 747.

The claimant bears the burden of proving that drug or alcohol addiction is not a contributing factor material the disability determination, by showing that he or she would remain disabled if the substance abuse ceased. Parra, 481 F.3d at 748. Where the evidence of materiality is inconclusive, the claimant's burden of proof is not satisfied. Parra, 481 F.3d at 749-750 (rejecting the argument that a finding of materiality is precluded unless the medical evidence affirmatively shows that a disability will resolve with abstinence). To hold otherwisewould give an addicted claimant "no incentive to stop" abusing drugs or alcohol, "because abstinence may resolve his disabling limitations and cause his claim to be rejected or his benefits terminated." Parra, 481 F.3d at 750.

Treating Source Evidence

Plaintiff contends that the ALJ improperly evaluated treating source medical opinions from Doan Nguyen, M.D., and Lorraine Tsui, M.D. [JS 3-11].

Dr. Nguyen

Plaintiff contends that the ALJ erroneously rejected the treating opinion of Doan Nguyen, M.D., that plaintiff had a diagnosis of major depressive disorder, recurrent, with psychosis or with psychotic features, and a Global Assessment of Function ("GAF") score ranging from 30 to 50. [See JS 3-8].

Under the "treating physician rule," the ALJ must provide clear and convincing reasons, supported by substantial evidence in the record, for rejecting an uncontroverted treating source opinion. If contradicted by that of another doctor, a treating or examining source opinion may be rejected for specific and legitimate reasons that are based on substantial evidence in the record. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); ...


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