UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
November 15, 2010
TIMOTHY GREENWOOD, PLAINTIFF,
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge
OPINION AND ORDER
Plaintiff Timothy Greenwood filed a complaint on September 28, 2009, seeking review of the Commissioner's decision denying his application for disability benefits. On February 16, 2010, the Commissioner answered the complaint, and the parties filed a joint stipulation on March 31, 2010.
On April 24, 2007, plaintiff, who was born on December 25, 1960, applied for disability benefits under the Supplemental Security Income program ("SSI") of Title XVI of the Social Security Act ("Act"), claiming an inability to work since July 4, 2005, due to bipolar and psychotic disorders. Certified Administrative Record ("A.R.") 124-26. The plaintiff's application was initially denied on August 21, 2007, and was denied again on December 21, 2007, following reconsideration. A.R. 63-67, 70-75. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Charles E. Stevenson ("the ALJ") on May 21, 2009. A.R. 38-58, 76. On July 14, 2009, the ALJ issued a decision finding plaintiff is not disabled.
A.R. 5-20. The plaintiff appealed this decision to the Appeals Council, which denied review on September 1, 2009. A.R. 1-4.
The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner's decision denying plaintiff disability benefits to determine if his findings are supported by substantial evidence and whether the Commissioner used the proper legal standards in reaching his decision. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009).
The claimant is "disabled" for the purpose of receiving benefits under the Act if he is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).
The Commissioner has promulgated regulations establishing a five-step sequential evaluation process for the ALJ to follow in a disability case. 20 C.F.R. § 416.920. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. § 416.920(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment or combination of impairments significantly limiting him from performing basic work activities. 20 C.F.R. § 416.920(c). If so, in the Third Step, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments ("Listing"), 20 C.F.R. § 404, Subpart P, App. 1. 20 C.F.R. § 416.920(d). If not, in the Fourth Step, the ALJ must determine whether the claimant has sufficient residual functional capacity despite the impairment or various limitations to perform his past work. 20 C.F.R. § 416.920(f). If not, in Step Five, the burden shifts to the Commissioner to show the claimant can perform other work that exists in significant numbers in the national economy. 20 C.F.R. § 416.920(g). Moreover, where there is evidence of a mental impairment that may prevent a claimant from working, the Commissioner has supplemented the five-step sequential evaluation process with additional regulations addressing mental impairments.*fn1 Maier v. Comm'r of the Soc. Sec. Admin., 154 F.3d 913, 914-15 (9th Cir. 1998) (per curiam).
However, "[a] finding of 'disabled' under the five-step inquiry does not automatically qualify a claimant for disability benefits." Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007), cert. denied, 552 U.S. 1141 (2008). Rather, the Act provides that "[a]n individual shall not be considered disabled . . . if alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner's determination that the individual is disabled." 42 U.S.C. § 423(d)(2)(C). "[T]he claimant bears the burden of proving that drug or alcohol addiction is not a contributing factor material to his disability." Parra, 481 F.3d at 744-45, 748; Ball v. Massanari, 254 F.3d 817, 821 (9th Cir. 2001).
"The 'key factor . . . in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability' is whether an individual would still be found disabled if [he] stopped using alcohol or drugs." Sousa v. Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998) (citation omitted); see also 20 C.F.R. § 416.935(b)(1) (same). "In making this determination, [the ALJ] will evaluate which of [the claimant's] current physical and mental limitations . . . would remain if [the claimant] stopped using drugs or alcohol and then determine whether any or all of [the claimant's] remaining limitations would be disabling." 20 C.F.R. § 416.935(b)(2). "If the remaining limitations would still be disabling, then the claimant's drug addiction or alcoholism is not a contributing factor material to his disability." Parra, 481 F.3d at 747. "If [the] . . . remaining limitations would not be disabling, [the ALJ] will find that [the claimant's] drug addiction or alcoholism is a contributing factor material to the determination of disability[,]" 20 C.F.R. § 416.935(b)(2)(i); Parra, 481 F.3d at 747, and benefits will be denied.
For individuals such as plaintiff, who have a substance abuse problem, the ALJ:
must first conduct the five-step inquiry without separating out the impact of alcoholism or drug addiction. If the ALJ finds that the claimant is not disabled under the five-step inquiry, then the claimant is not entitled to benefits and there is no need to proceed with the analysis under 20 C.F.R. § . . . 416.935. If the ALJ finds that the claimant is disabled and there is "medical evidence of [his or her] drug addiction or alcoholism," then the ALJ should proceed under § . . . 416.935 to determine if the claimant "would still [be found] disabled if [he or she] stopped using alcohol or drugs."
Bustamante, 262 F.3d at 955 (citations omitted); see also 20 C.F.R. § 416.935(a) ("If we find that you are disabled and have medical evidence of your drug addiction or alcoholism, we must determine whether your drug addiction or alcoholism is a contributing factor material to the determination of disability." (emphasis added)); Brueggemann v. Barnhart, 348 F.3d 689, 694-95 (8th Cir. 2003) ("The plain text of the relevant regulation requires the ALJ first to determine whether [the claimant] is disabled . . . without segregating out any effects that might be due to substance abuse disorders. . . . If the gross total of a claimant's limitations, including the effect of substance use disorders, suffices to show disability, then the ALJ must next consider which limitations would remain when the effects of the substance use disorders are absent." (citations and footnote omitted)); Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001) ("The implementing regulations make clear that a finding of disability is a condition precedent to an application of § 423(d)(2)(C). The [ALJ] must first make a determination that the claimant is disabled. He must then make a determination whether the claimant would still be found disabled if he or she stopped abusing alcohol." (citations omitted)).
Applying the five-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity since April 17, 2007, his application date. (Step One). The ALJ then found plaintiff has the following severe combination of impairments: "a mood disorder with psychotic features, asthma and a history of substance abuse." (Step Two). The ALJ found that plaintiff's substance abuse meets Listing 12.09 (Step Three), and plaintiff is disabled based on his substance abuse. A.R. 11-13. The ALJ next determined that even if plaintiff stopped his substance abuse, he would continue to have a severe impairment (Step Two); however, it would not meet or equal a Listing. (Step Three). The ALJ then found plaintiff has no past relevant work. (Step Four). Finally, the ALJ determined that if plaintiff stopped his substance abuse, he could perform a significant number of jobs in the national economy; therefore, he is not disabled. (Step Five).
A claimant's residual functional capacity ("RFC") is what he can still do despite his physical, mental, non-exertional, and other limitations. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); see also Valentine v. Comm'r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009) (RFC is "a summary of what the claimant is capable of doing (for example, how much weight he can lift)."). Here, the ALJ found that if plaintiff stopped abusing drugs, he could "perform a full range of work at all exertional levels but with the following non-exertional limitations: he is limited to simple and repetitive tasks, and to work requiring no significant contact with the public although incidental contact would be permissible, and as a precaution, he is limited to work not involving exposure to concentrated fumes, odors, dusts and gases." A.R. 14. However, plaintiff contends the ALJ's RFC assessment is not supported by substantial evidence because the ALJ failed to properly consider the opinion of Inderjit Seehrai, M.D., an examining psychiatrist. The plaintiff is correct.
"[T]he ALJ may only reject . . . [an] examining physician's uncontradicted medical opinion based on 'clear and convincing reasons[,]'" Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citation omitted); Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006), and "[e]ven if contradicted by another doctor, the opinion of an examining doctor can be rejected only for specific and legitimate reasons that are supported by substantial evidence in the record." Regennitter v. Comm'r of the Soc. Sec. Admin., 166 F.3d 1294, 1298-99 (9th Cir. 1999); Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
On July 21, 2007, Dr. Seehrai examined plaintiff and diagnosed him as having an unspecified mood disorder and an unspecified psychotic disorder and a history of polysubstance dependency, in early remission; however, Dr. Seehrai wanted to rule out bipolar disorder I with psychotic features and schizoaffective disorder, bipolar disorder type, and substance/alcohol-induced mood disorder and psychotic disorder. A.R. 221-25. Dr. Seehrai found plaintiff had marginal insight and judgment and is not capable of managing funds by himself, and opined plaintiff's Global Assessment of Functioning ("GAF") was 50.*fn2 A.R. 224-25. Dr. Seehrai found:
[plaintiff] was cooperative at the time of the interview. He did not show any anger or irritable mood. He is capable of interacting with other people and the public when he is in a mallow [sic] mood. His mental status examination and history show that he has mood swings between depression, anger and psychosis. He is capable of doing simple and repetitive tasks but he has moderate impairment to do detailed and complex tasks because of his mood swings, sedative medications and medical problems. He has moderate impairment to finish his workday or workweek because of his mood swings, psychosis, short-term memory deficit, physical problems and sedative medication.
The ALJ relied on some of Dr. Seehrai's opinions in assessing plaintiff's RFC, and found plaintiff can only perform simple repetitive tasks and work requiring no significant public contact.
A.R. 14, 17. However, the ALJ ignored, and implicitly rejected without any explanation,*fn3 Dr. Seehrai's opinions that plaintiff has a moderate impairment in his ability to finish his workday or workweek because of his mood swings, psychosis, short-term memory deficit, physical problems and sedative medication. Ibid. This was legal error. Lingenfelter, 504 F.3d at 1038 n.10; Smolen, 80 F.3d at 1286. Moreover, since the ALJ relied on only some of Dr. Seehrai's opinions in assessing plaintiff's RFC, see A.R. 17-18, "substantial evidence does not support the [ALJ's RFC] assessment." Lingenfelter, 504 F.3d at 1040; Widmark, 454 F.3d at 1070. "Nor does substantial evidence support the ALJ's step-five determination, since it was based on this erroneous RFC assessment."*fn4 Lingenfelter, 504 F.3d at 1041.
When the Commissioner's decision is not supported by substantial evidence, the Court has authority to affirm, modify, or reverse the Commissioner's decision "with or without remanding the cause for rehearing." 42 U.S.C. § 405(g); McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). "Remand for further administrative proceedings is appropriate if enhancement of the record would be useful." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Here, remand is appropriate so the ALJ can properly consider Dr. Seehrai's opinions in determining plaintiff's RFC and whether plaintiff is disabled. Widmark, 454 F.3d at 1070; Bunnell v. Barnhart, 336 F.3d 1112, 1116 (9th Cir. 2003).
IT IS ORDERED that: (1) plaintiff's request for relief is granted and defendant's request for relief is denied; and (2) the Commissioner's decision is reversed, and the action is remanded to the Social Security Administration for further proceedings consistent with this Opinion and Order, pursuant to sentence four of 42 U.S.C. § 405(g), and Judgment shall be entered accordingly.