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Kayla Marie Lockwood v. Carolyn W. Colvin

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


May 10, 2013

KAYLA MARIE LOCKWOOD, PLAINTIFF,
v.
CAROLYN W. COLVIN, DEFENDANT.

The opinion of the court was delivered by: United States Magistrate Judge Nandor J. Vadas

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; AND REMANDING CASE Re: Dkt. Nos. 19, 22

INTRODUCTION

Kayla Lockwood seeks judicial review of an administrative law judge decision denying her further Supplemental Security Income (Title XVI) benefits. Doc. No. 19. Lockwood‟s request for 16 review of the administrative law judge‟s decision was denied by the Appeals Council. See 17

Administrative Record ("AR") 6-9. The decision thus is the "final decision" of the Commissioner 18 of Social Security, which this court may review. See 42 U.S.C. §§ 405(g), 1383(c)(3). Both 19 parties have consented to the jurisdiction of a magistrate judge. Doc. Nos. 4 & 5. The court 20 therefore may review the parties‟ cross-motions for summary judgment. For the reasons stated 21 below, the court will grant Lockwood‟s motion for summary judgment, deny Defendant‟s motion 22 for summary judgment, and remand the case for further proceedings consistent with this order. 23

BACKGROUND

A.Procedural History.

The Social Security Administration (the "SSA") found Lockwood disabled as of April 1, 2001, due to a history of bipolar disorder and post-traumatic stress disorder. AR 27, 40. She was 27

13 years old. Specifically, the SSA found that Lockwood‟s symptoms met the mental disorder(s) 28 described in Childhood Listing 112.04 (Mood Disorders) and awarded Lockwood Supplemental Security Income ("SSI") benefits. AR 17, 40. By law, the SSA was required to re-determine 2

Lockwood‟s eligibility for SSI benefits under the adult rules when Lockwood became 18 years 3 old. AR 17, 28. To make that determination, the SSA needed current medical evidence and 4 therefore attempted to schedule a consultative mental health evaluation for Lockwood. AR 28.

The SSA sent two notices to Lockwood, and although Lockwood acknowledged receiving at least 6 one of the notices, she never scheduled the examination. Id.; see also AR 144-158. Because the 7

SSA had "insufficient evidence to determine the continuing severity of [Lockwood‟s] conditions 8 under the adult rules," in April 2007 it "cease[d] her benefits for insufficient evidence and failure 9 to cooperate." Id. 10

Lockwood sought reconsideration of the cessation of benefits. In May 2009, Lockwood 11 attended a hearing before a disability hearing officer, who again concluded that there was 12 insufficient medical evidence with which to find that Lockwood was disabled. AR 37-45.

California

Lockwood then requested a hearing before an administrative law judge ("ALJ") and appeared for that hearing on March 31, 2010. AR 476-522. The ALJ found that although Lockwood suffered from severe impairments, she would not be disabled if she discontinued her 16 use of marijuana, and therefore was not eligible for SSI benefits. AR 14-25. The Appeals Council 17 denied Lockwood‟s request for review without comment. AR 6-8. Lockwood thereafter filed the 18 instant action. 19

B.Medical History.

Lockwood was born in 1988, and was physically and sexually abused throughout her childhood. AR 500-502. The earliest medical records in the AR establish that she was diagnosed 22 by her treating physician, Dr. Robert Soper, with Major Depression, Dissociative Disorder and 23 Borderline Traits as early as 2001. AR 383-386. 24 In 2003, Lockwood began outpatient mental health treatment for her depression. AR 395. At intake, a social worker diagnosed Lockwood with Bipolar Affective Disorder and PTSD. AR 26 25 398. Her global assessment of functioning ("GAF") *fn1 score was 35. AR 396. Lockwood 27voluntarily entered a day treatment program in early 2004. AR 404, 408. At intake, another social 2 worker diagnosed Lockwood with Major Depressive Disorder and Anxiety Disorder. AR 408-3409.

Her GAF (indicated as "Axis V") was noted to be 40 currently, with 45 as her highest. AR 4 409. She was discharged on February 25, 2004. AR 417. At a scheduled follow-up appointment, Lockwood was diagnosed by Dr. Christopher Lang as having Bipolar Affective Disorder and 6

PTSD. AR 418. At that time, she was taking Lithium to stabilize her mood. Id. Lang observed 7 that Lockwood experienced "a high degree of interpersonal sensitivity to feeling that adults in her 8 immediate environment are treating other age peers differently than they are treating [her]." AR 9

419. Lockwood was prescribed Prozac in May 2004. AR 422. 10

On November 24, 2004, Lockwood stopped using methamphetamines when she

Northern District of United States District Court

11 discovered she was pregnant. AR 288. 12

In 2005, Lockwood ceased taking Lithium and Prozac because of concerns about her

California

pregnancy. Lockwood also for the first time revealed to Dr. Lang that she had been using 14 methamphetamines regularly before her pregnancy. AR 429. Dr. Lang noted that "[t]he mood

instability that was attributed to Bipolar Disorder now appears much more likely to correlate with 16 the substance abuse, although the family history is strong for bipolar disorder and the Lithium 17 appeared to be significantly helpful with mood stability." AR 429; see also 430-432 (Lockwood 18 ceased taking crystal meth upon discovering pregnancy, but continued using marijuana "on a daily 19 basis"). Based on Lockwood‟s methamphetamine use, Dr. Lang revised Lockwood‟s diagnosis to 20

"Major Depression, recurrent, severe, with psychotic features" and PTSD; he ruled out the bipolar 21 disorder diagnosis. AR 432. 22

In May 2005, Dr. Anna Williams diagnosed Lockwood with Major Depressive Disorder 23 and PTSD. AR 438. She prescribed Zoloft and recommended psychotherapy. Id. Lockwood‟s 24

GAF was 55. Id. She represented to Dr. Williams that she had been sober for 6 months. Id.

In July 2006, Lockwood reported that she had not used any substance for two years. AR

443. (This conflicts with her prior report that she had used methamphetamines until November 3

2004. AR 428.) She was taking Zoloft for her depression and identified residual mood-related 4 symptoms, but Dr. Lang felt she was competent to manage her own funds based on his interview. 5

AR 443. 6

October 2007, Lockwood was involuntarily committed for psychiatric treatment after

7 reporting that she was hearing voices, and threatening to harm herself and others. AR 444, 447. 8

At intake, Dr. Rebecca Danforth diagnosed Lockwood with "Schizoaffective Disorder, Bipolar 9

Type;" PTSD; and cannabis dependence; Lockwood‟s GAF was 30. AR 454. Upon discharge 10 four days later, Dr. Jennifer Star diagnosed Lockwood with "Bipolar Affective Disorder, Most 11

Recent Episode Mixed;" marijuana dependence; and PTSD. AR 449. Her GAF upon discharge 12 was 50. AR 450.

In connection with Lockwood‟s request for reconsideration of the SSA‟s denial of benefits,

14 a medical consultant completed a Psychiatric Review of Lockwood based on her medical records

alone. See AR 249-259. In his Medical Summary, Dr. Harrison indicated that an RFC assessment 16 was necessary in connection with Listing 12.04 (Affective Disorders). AR 249, 251. Dr. Harrison 17 did not indicate whether Lockwood met or equaled any of the other listings implicated by the 18 diagnoses Lockwood‟s physicians had made in the past, such as 12.03 (Schizophrenic, Paranoid 19 and other Psychotic Disorders), 12.06 (Anxiety-related Disorders), 12.08 (Personality Disorders), 20 or 12.09 (Substance Addiction Disorders). Dr. Harrison‟s report does not refer to Lockwood‟s 21 substance abuse in any manner. He indicates that Lockwood would have mild restriction of her 22 activities of daily living; mild difficulties in maintaining social functioning, and moderate 23 difficulties in maintaining concentration, persistence or pace. AR 257. He identified no episodes 24 of decompensation of extended duration. Id. The report was signed on February 3, 2009. AR 25 249. 26

15

On May 5, 2009, Lockwood testified during her disability hearing that she used marijuana 27 regularly. AR 38. 28

In July 2009, Lockwood visited the ER for anxiety. AR 361-62. She denied having hallucination or homicidal ideations; she admitted having suicidal thoughts but denied having a 2 plan. AR 361. At that time, she denied using street drugs, but her urine tested positive for 3 cannabinoids. AR 361-62. The physician‟s impression was "acute anxiety," and Lockwood was 4 released with anti-anxiety medication after meeting with a county mental health worker. AR 362. 5

On a follow-up visit to the Del Norte Mental Health Clinic, social worker Celia Perez added 6

"Toxic Effects of Narcotics" to Lockwood‟s diagnosis form. AR 299. She noted that Lockwood‟s 7

GAF was 45. AR 300. 8

In August 2009, Carol Kays, a social worker at the Del Norte Mental Health Clinic, 9 recorded a prior diagnosis of bipolar disorder and added "Acute Stress Disorder" and "Personality 10

Disorder" to Lockwood‟s diagnosis form. AR 460. Lockwood‟s GAF at the time was 45. AR 11 461.

California

In March 2010, Lockwood saw Dr. Christian Holland at the Del Norte Community Health Clinic for the first time. Dr. Holland diagnosed Lockwood with Manic Depression. AR 464. 14

conducted by Dr. Paul Butler. AR 467-471.*fn2 After reviewing her records and examining her, Dr. 16

Butler diagnosed Lockwood as suffering from Bipolar Disorder and PTSD. AR 470. Her GAF 17 was 50. Id. She denied using any illicit drugs at that time. AR 469. Dr. Butler opined that 18

Lockwood was "likely to experience problems performing both simple, as well as complex tasks[. 19

. . ;] has problems with authority [and] is likely to need special assistance in order to perform work 20 on a consistent basis." AR 470. 21

On February 5, 2011, Lockwood attended a comprehensive psychiatric evaluation

15

C.Lockwood's Testimony Before The ALJ.

22

Lockwood testified that she was repeatedly raped and molested by her step-father and by

23 her father‟s friends from the time she was three years old until she was nine years old. AR 500-24

501. She testified that she received court-ordered therapy from the time she was five until she was 25 nine years old. AR 501. She continued receiving treatment afterwards and has "always been 26 28 to the Appeals Council, however, it is part of the AR and may be considered by this court on appeal. See Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993).going to the therapist" for PTSD. AR 501.

1

2

After her second pregnancy, a doctor told Lockwood that she suffered from post-partum

3 depression. AR 493-94. She was having good days and down days, and on her down days could 4 not get up. AR 505. In October 2007, Lockwood was "hearing voices. I [] was having a lot of 5 problems mentally. Like I couldn‟t be stable around my children. I was crying all the time. . . I 6 just felt suicidal, I guess, like I wasn‟t worth anything. And I was hearing voices telling me the 7 same thing, that I‟m nothing. So I went to the doctor‟s to try to get help, and that‟s when they had 8 stripped my rights at the doctor‟s office and put me in the mental ward." AR 491; see also id. at 9

503 (Lockwood was committed "because I threatened to kill everybody in the clinic and myself"). 10

She was taken by the police to the hospital in July 2009 after cutting her arm and was put 11 on suicide watch there. AR 499. Lockwood explains that she cuts herself every six months, sometimes deeply, sometimes not, to " release my pain, not to kill myself." AR 502 California

Lockwood also testified about her social limitations. Lockwood shops for groceries at 14 night because she tries to avoid people; she bags the groceries while her boyfriend pays and talks to the cashier. AR 487. Lockwood is not comfortable around doctors and teachers "because I feel 16 they all dislike me." AR 509. Her boyfriend has to "do all the talking for me, because I really 17 don‟t know if I would be able to hold my tongue against somebody that I think is thinking bad 18 about me, or talking behind my back." AR 509. She does not go anywhere if her boyfriend 19 cannot come with her, and walks away from people if her boyfriend is not there. AR 510 ("I‟m 20 really afraid of them looking at me the wrong way, and getting into a fight with them, because it‟s 21 happened before"). 22

She does not attend church or community events. AR 495. On her down days, her

23 boyfriend helps take care of their children; she could not manage to do so by herself. AR 505. 24

Her paid work history is limited to one job: in 2009, she worked for her grandmother for

25 half an hour a day for approximately four months as a home health aide, but got into a fight with 26 her grandmother when she complained that Lockwood was late, unreliable, and did not do her job 27 properly. AR 482-483. 28

Lockwood cannot volunteer at her daughter‟s school because she believes "other parents

look at me funny, I just think like they‟re thinking about me, and like why [can‟t they] say it to my 2 face if they‟re thinking something. And the teachers . . . they seem just really rude to me. Like . . 3

. they don‟t like me." AR 509; see also AR 38 (Disability Hearing Officer‟s summary of 4

Lockwood‟s testimony in May 5, 2009) ("She has never looked for work because she does not feel 5 comfortable dealing with others. She volunteered at her daughter‟s pre-school 3 times but reports 6 she got into a fight with her daughter‟s teacher because the teacher asked her to sweep the floor 7 and she and the teacher could not get along"). 8

While Lockwood has admitted to consuming methamphetamines in the past, she stopped in

November 2004 when she discovered her first pregnancy. AR 288, 497. In March 2010, 10

Lockwood testified that she was a daily marijuana smoker and was saving money to obtain her 11 medical marijuana card. AR 497. At the time she was hospitalized in 2007, she was using marijuana but no other illegal drugs. AR 497-98. She testified that the marijuana calmed the voices in her head. AR 513. 14

LEGAL STANDARDS

The Commissioner‟s findings "as to any fact, if supported by substantial evidence, shall be 16 conclusive." 42 U.S.C. § 405(g). A district court has a limited scope of review and can only set 17 aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal 18 error. Flatten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Substantial 19 evidence is "more than a mere scintilla but less than a preponderance; it is such relevant evidence 20 as a reasonable mind might accept as adequate to support a conclusion." Sandgathe v. Chater, 108 21 F.3d 978, 979 (9th Cir. 1997). "In determining whether the Commissioner‟s findings are 22 supported by substantial evidence," a district court must review the administrative record as a 23 whole, considering "both the evidence that supports and the evidence that detracts from the 24

Commissioner‟s conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The 25

Commissioner‟s conclusion is upheld where evidence is susceptible to more than one rational 26 interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 27 28

DISCUSSION

A.The Five Step Sequential Analysis For Determining Disability.

The Social Security Regulations set out a five-step sequential analysis for evaluating a

4 claimant‟s application for SSI disability. See 20 C.F.R. § 416.920(a)(4); Tackett v. Apfel, 180 F.3d 5

1094, 1098 (9th Cir. 1999). In the first step, the ALJ must determine whether the claimant is 6 currently engaged in substantially gainful activity. 20 C.F.R. § 416.920(a)(4)(i). (This step is not 7 used for redeterminations of entitlement to benefits when a claimant turns 18 years old.) If the 8 claimant is not so engaged, the second step requires the ALJ to determine whether the claimant 9 has a "severe" impairment which significantly limits the claimant‟s ability to perform basic work 10 activities. 20 C.F.R. § 416.920(a)(4)(ii), (c). If the ALJ concludes that the claimant does not have 11 a "severe" impairment, the claimant is not "disabled" and her claim is denied. Id. If the claimant 12 does have a "severe" impairment, the third step requires the ALJ to determine whether the impairment meets or equals the criteria of an impairment listed in the relevant regulation. 20 14

C.F.R. § 404, Subpt. P, App. 1; 20 C.F.R. § 416.920(a)(4)(iii). In the fourth step, the Commissioner must determine whether the claimant has sufficient residual functional capacity to 16 perform her past work. 20 C.F.R § 416.920(a)(4)(iv). If so, the claimant is not "disabled" and the 17 claim must be denied. Id. If the claimant proves that she cannot perform past work, the burden 18 shifts to the commissioner in the fifth step of the analysis to establish that the claimant can 19 perform other substantial gainful work. 20 C.F.R. § 416.920(a)(4)(v). If the Commissioner fails to 20 meet this burden, the claimant must be found disabled. Id. If a claimant is found to be "disabled" 21 or "not disabled" at any of these steps, the ALJ need not consider the remaining steps. 20 C.F.R. 22 § 416.920(a)(4). 23

B.Lockwood's Arguments On Appeal To This Court.

24

Lockwood asks the court to remand the case for further proceedings on four grounds. Doc. No. 19. She argues that the ALJ failed to develop the record adequately and should have 26 requested additional medical opinions. She argues that the ALJ failed to evaluate her severe 27 impairments properly. She argues that the ALJ failed to properly evaluate the impact of her 28 substance abuse on her disability. Finally, she argues that new evidence demonstrating the severity of her impairments should be taken into consideration by the ALJ. 2

The ALJ evaluated Lockwood‟s application for benefits under the required sequential 3 evaluation. See AR 16-23. (As noted above, because this was a redetermination of benefits at age 4 18, the first step is inapplicable. AR 18.) The court addresses the ALJ‟s decision only to the 5 extent it is challenged by Lockwood on appeal. 6

C.The ALJ Erred In Failing To Evaluate The Severity Of All Of Lockwood's

Impairments.

8

At Step Two, the claimant bears the burden of showing that she has a medically severe 9 impairment or combination of impairments. 20 C.F.R. § 416.920(c). A "severe" impairment is 10 one defined as significantly limiting physical or mental ability to do basic work activity. Id. In 11 determining whether a claimant has a severe impairment the ALJ must evaluate all of the medical 12 opinions in the AR, and explain the weight given to each opinion. 20 C.F.R. § 416.927(b) ("[W]e will always consider the medical opinions in your case record together with the rest of the relevant 14 evidence we receive"), (c) ("Regardless of its source, we will evaluate every medical opinion we

receive"). An ALJ may not circumvent this requirement simply by ignoring opinions in the 16 record. Lingenfelter v. Astrue, 504 F. 3d 1028, 1038 n. 10 (9th Cir. 2007) ("Of course, an ALJ 17 cannot avoid these requirements simply by not mentioning the treating physician‟s opinion and 18 making findings contrary to it"). 19

Here, the ALJ concluded that Lockwood has four severe impairments: polysubstance

20 abuse, bipolar disorder, major depressive disorder, and PTSD.*fn3 AR 19. As described above, 21 many of Lockwood‟s treating physicians diagnosed her with these impairments, but they also 22 diagnosed her as suffering from anxiety disorder, personality disorder, borderline traits, manic 23 depression, acute stress disorder, and dissociative disorder. See, e.g., AR 207, 220-22, 225, 231, 24

234, 237, 240, 264, 308, 318, 339, 362, 409, 432, 438, 454, 460. While the ALJ referenced 25 various diagnoses of anxiety disorder, borderline traits, panic attacks and dissociative disorder, he 26

27

28 corroborated by the record, and that the record contains evidence that Lockwood was medication seeking. See AR 19-20. Lockwood does not challenge these findings on appeal.

15

did not evaluate whether they were severe. AR 19. The ALJ erred in failing to evaluate the 2 myriad medical opinions that supported the existence (and severity) of Lockwood‟s other 3 impairments. See 20 C.F.R. § 416.927(b), (c); see also Ingram v. Barnhart, 72 Fed. App‟x 631, 4

635 (9th Cir. 2003) (as the ALJ did not identify plaintiff‟s dysthymia or panic disorder as severe 5 impairments, he necessarily did not fully consider the effects of the combination of plaintiff‟s 6 severe impairments.) 7

To the extent the ALJ‟s failure to address these impairments can be interpreted as a 8 conclusion that these impairments are not severe, the ALJ failed to offer any reasons to the 9 treaters‟ conclusions that Lockwood suffered from these conditions, or to explain why the 10 conditions were not severe. A treating physician‟s opinion is given special weight because she is 11 employed to cure and has a greater opportunity to observe the claimant‟s physical condition. Fair 12 v. Bowen, 885 F.2d 597, 604-05 (9th Cir. 1989); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). If a treating physician‟s opinions are not contradicted, they can be rejected only with "clear 14 and convincing" reasons. Lester, 81 F.3d at 830. If the treater‟s opinions are contradicted, the

ALJ may reject the opinions if he states specific, legitimate reasons that are supported by 16 substantial evidence. Flatten, 44 F.3d at 1463; Fair, 885 F.2d at 605. Whether the ALJ ignored or 17 implicitly rejected the treaters‟ opinions regarding Lockwood‟s documented impairments, he did 18 not articulate his reasoning under the relevant standard, supported by substantial evidence, for 19 doing so. Either way, this was error. See Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) 20

("[A]n ALJ may find that a claimant lacks a medically severe impairment or combination of 21 impairments only when his conclusion is clearly established by medical evidence" (citing S.S.R. 22 85-28)); Flatten, 44 F.3d at 1463; Lester, 81 F.3d at 830. 23

Defendant contends that the court should affirm the ALJ decision because Lockwood "does not explain how her other alleged mental impairments would limit her more than the ALJ 25 found." Doc. No. 22 at 4. According to Defendant, the ALJ‟s failure to evaluate each severe 26 impairment was not prejudicial because "the ALJ had to consider the functional effect of all her 27 impairments, severe and non-severe" when assessing her residual functional capacity ("RFC"). 28

24

Doc. No. 22 at 4. The ALJ did examine some evidence pertaining to Lockwood‟s other mental impairments when assessing her RFC. See AR 22-23. The ALJ‟s omission nonetheless 2 constitutes error. First, the ALJ‟s failure to evaluate each of Lockwood‟s impairments violated 3

Social Security regulations. See 20 C.F.R. § 416.920(a)(3) ("We will consider all evidence in 4 your case record when we make a determination or decision whether you are disabled"); see also 5 id. § 416.920a(b) ("[W]e must first evaluate your pertinent symptoms, signs, and laboratory 6 findings to determine whether you have a medically determinable mental impairment(s). . . . If we 7 determine that you have a medically determinable mental impairment(s), we must specify the 8 symptoms, signs, and laboratory findings that substantiate the presence of the impairment(s) and 9 document our findings . . ."). Second, the ALJ did not take into consideration each of Lockwood‟s 10 impairments (alone or in combination) at Step Three of the sequential analysis.*fn4 For example, the 11

AR is replete with references to Lockwood‟s PTSD and other anxiety-related diagnoses, but the 2

ALJ did not analyze whether Lockwood‟s impairments met Listing 12.06 (Anxiety-related 3 disorders); cf. AR 147-149 (October 2007 SSA consultant‟s analysis of Lockwood‟s impairments 4 under Listings 12.04 and 12.06). Finally, and as discussed in Section D below, the ALJ failed to 5 take into consideration each of Lockwood‟s impairments when analyzing whether Lockwood‟s 6 drug addiction materially contributes to her disability. The ALJ‟s failure to fully analyze 7

Lockwood‟s severe impairments at Step Two compromised the remaining steps of the sequential 8 analysis, and constitutes harmful error. 9

D.The ALJ Erred In Assessing The Impact Of Lockwood's Drug Use On Her Disability.

Since this case involves drug abuse and the ALJ found that Lockwood met a listed impairment, the ALJ was required to conduct a drug addiction and alcoholism analysis to determine whether the substance abuse is a contributing factor material to Lockwood‟s disability. 14

See 20 C.F.R. § 416.935(a). In conducting this analysis, an administrative law judge must

evaluate which impairments would remain if the claimant stopped abusing substances. 20 C.F.R. 16

§ 416.935(b). If the remaining limitations would still be disabling, then the claimant‟s substance 17 abuse is not a material contributing factor. 20 C.F.R. § 416.935(b)(2)(ii). Conversely, if the 18 remaining limitations would not be disabling, then the substance abuse is material and benefits 19 must be denied. 20 C.F.R. § 416.935(b)(2)(i). 20

The ALJ‟s failure to consider "each of every impairment" in Lockwood‟s case was error.

The Ninth Circuit has emphasized that, 22

23 degree of limitation in any of the four functional areas[, and] simply referenced and adopted the [PRT Form] completed earlier by [another physician]"). Setting aside the fact that Dr. Harrison‟s 24 report only "addresses" listing 12.06 through omission, Dr. Harrison‟s opinion is based on a review of the record only, and is not supported by independent clinical findings in the record. The 25 report of a non-examining physician cannot by itself constitute substantial evidence that justifies rejection of the opinion of either an examining physician or a treating physician. Lester, 81 F.3d 26 at 831 (citing Pitzer v. Sullivan, 908 F.2d 502, 506 n. 4 (9th Cir. 1990)); see also Tonapetyan v. Halter, 242 F.3d 1144, 1148-49 (9th Cir. 2001). 27

It is unclear whether Lockwood raises this issue as a ground for remanding the case in her motion for summary judgment, or is basing her argument solely on a Step Two error by the ALJ. 28

See Doc. No. 19 at 7-9. In any event, because the court is remanding on other grounds, the ALJ will also need to address this error on remand.

[i]n drug and alcohol addiction cases, the question is whether the claimant would be still disabled if not dependent on drugs or

alcohol. Thus, each and every impairment must be considered to determine if the combination of the remaining impairments is

severe. If a severe impairment is omitted at step two, it is impossible

to perform the proper analysis for differentiating the effects of [drug

and alcohol abuse] from the effects of a claimant‟s other impairments. As the ALJ did not identify [claimant‟s] dysthymia or

panic disorder as severe impairments, he necessarily did not fully consider the effects of the combination of [claimant‟s] severe

impairments.

Error in identifying a claimant‟s severe impairments necessarily corrupts the differentiating analysis because the

Commissioner cannot consider whether each of the claimant‟s severe impairments would persist if she stopped using drugs or

alcohol.

Ingram, 72 Fed. App‟x at 635-36; see also Black v. Astrue, 472 Fed. App‟x 491, 492 (9th Cir. 11

2012) (the ALJ erred at Step Two by not considering whether plaintiff‟s anxiety disorder was a

Northern District of United States District Court

10

12

severe impairment when his treating physician diagnosed plaintiff as suffering from anxiety disorders and plaintiff alleged she was disabled in part due to anxiety disorder). The medical 14 opinions from Lockwood‟s treating sources diagnosing her generalized and acute anxiety, PTSD, panic attacks, and anxiety disorder were un-contradicted, and the record supports a finding that 16 these conditions had more than a minimal effect on her ability to work. The ALJ erred by not 17 considering whether Lockwood‟s anxiety-related disorders would have persisted if Lockwood had 18 ceased her marijuana use. See Ingram, 72 Fed. App‟x at 635. 19

In addition, the ALJ‟s conclusion that Lockwood would not be disabled if she stopped

20 using marijuana is not supported by substantial evidence. As an initial matter, the ALJ does not 21 identify what evidence he relied upon in conducting the drug abuse analysis. See AR 21. Without 22 citation to the record, he conclusorily states that Lockwood‟s limitations would not meet or 23 medically equal the criteria of any listed impairment if she stopped the substance abuse and that 24

Lockwood‟s "diminished capacity to handle the mental demands of work is due to her non-25 compliance with treatment and continued substance abuse." Id. The ALJ‟s findings are not 26 sufficiently detailed to allow this court to understand the basis for his conclusion, and therefore are 27 inadequate. See Lewin v. Schweiker, 654 F.2d 631, 634-35 (9th Cir. 1981) ("An examiner‟s 28 findings should be as comprehensive and analytical as feasible and, where appropriate, should include a statement of subordinate factual foundations on which the ultimate factual conclusions 2 are based, so that a reviewing court may know the basis for the decision . . . the court may not 3 speculate as to his findings" (internal citations omitted)). To the extent the ALJ identifies any 4 basis for his conclusions, he appears to rely on records that correlate Lockwood‟s marijuana use 5 with adverse events in her life as well as records that correlate Lockwood feeling better with her 6 representations of decreased marijuana use. See AR 23 ("The adverse effects of claimant‟s 7 marijuana dependence are well documented and the treatment notes show that her functioning 8 improved when her marijuana use decreased") (citing AR 290, 310, 312, 314, 315). Correlation, 9 however, does not equal causation. 10

Neither the ALJ nor Defendant identified any evidence establishing that marijuana materially contributed to Lockwood‟s depression, her PTSD, her bipolar disorder, her anxiety, or 12 any of the other diagnosed and extensively documented impairments from which she suffers. *fn5 On

the contrary, the evidence establishes that Lockwood‟s PTSD was caused by a years of abuse, and 14 no treating physician has opined that this condition would improve but for Lockwood‟s use of marijuana. Lockwood was diagnosed with -- and found disabled as a result of -- PTSD when she 2 was 13 years old, and the record does not contain any evidence that she was using marijuana at 3 that time. Her treating physician maintained his PTSD diagnosis in 2005 with full knowledge that 4

Lockwood was habitually using marijuana. AR 432 (ruling out bipolar disorder after discovering 5 that Lockwood used methamphetamines, but reaffirming PTSD diagnosis without mentioning 6 impact of marijuana on that condition). The ALJ‟s conclusion that Lockwood‟s marijuana use (as 7 opposed to her methamphetamine use) was a material contributor to Lockwood‟s PTSD diagnosis 8

(or any of her psychological conditions) is not supported by substantial evidence in the record. 9

E.The Record Was Not Adequately Developed.

When a claimant is actively abusing drugs or alcohol, determining which limitations would remain when the effects of substance abuse are absent is necessarily hypothetical; however, 12 the ALJ must still develop a full and fair record and support his conclusion with substantial evidence. See, e.g., Outin v. Astrue, 2011 U.S. Dist. LEXIS 87958, *15 (N.D. Cal. Aug. 9, 2011)14

("[E]ven though it is the claimant‟s burden to prove that [drug and alcohol abuse] is not a contributing factor, it is the ALJ‟s responsibility to develop a full and fair record and, if the ALJ is 16 unable to determine whether [drug and alcohol abuse] is a contributing factor to the otherwise 17 acknowledged disability, the claimant‟s burden has been met and an award of benefits must 18 follow") (citing Brueggemann v. Barnhart, 348 F.3d 689, 695 (8th Cir. 2003)). "In cases of 19 mental impairments, this duty is especially important." DeLorme v. Sullivan, 924 F.2d 841, 849 20 (9th Cir. 1991). The ALJ‟s duty is triggered when the record is inadequate or ambiguous "to 21 allow for proper evaluation of the evidence." McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 22 2010); see also Tonapetyan, 242 F.3d at 1148-49. 23 Lockwood argues that the ALJ failed to develop the record regarding her substance abuse.

Doc. No. 19 at 9-11. Defendant counters that the record is unambiguous, and the ALJ had no duty 25 to develop the record further. Defendant reasons that because Dr. Harrison‟s report did not 26 address the claimant‟s substance abuse, "the ALJ reasonably concluded that his opinion related to 27

Plaintiff‟s condition when she was not abusing marijuana" and therefore "[t]he record was 28 unambiguous on the issue of whether Plaintiff could work absent her substance abuse; the only opinion to address the subject, Dr. Harrison‟s opinion, supports the ALJ‟s finding."*fn6 Doc. No. 22 2 at 3. The court finds that the record was ambiguous, and should have been developed further. 3

Without further citation to the record or other expert medical testimony, the ALJ concluded

4 that Lockwood‟s drug use was material, asserting that her "diminished capacity to handle the 5 mental demands of work is due to her non-compliance with treatment and continued substance 6 abuse." AR 21. The ALJ‟s conclusion is based on medical records and treatment notes that 7

"show that the claimant‟s substance abuse and the degree of her compliance with treatment 8 directly affected her level of functioning." AR 22. As the ALJ notes, there is some 9 documentation from Lockwood‟s treating sources opining that "her Axis II behaviors and 10 substance abuse are interfering with her treatment and improvement" (AR 314), and later in July 11

2009 noting that the claimant reported a decrease in her marijuana use which would "likely help 12 her function more effectively" (AR 312). One treating source also noted that Lockwood

Northern District of United States District Court

California

"decreased her use of marijuana and was feeling better." AR 310. 14

The comments regarding Lockwood‟s improvement with decreased substance abuse,

however, are not unambiguous. That Lockwood‟s functioning improved on a few occasions does 16 not constitute substantial evidence that Lockwood would improve sufficiently to be considered not 17 disabled if she stopped using marijuana. See Holohan v. Massanari, 246 F.3d 1195, 1205 (9th 18

Cir. 2001) (noting that "improvement" is contextual, and does not necessarily indicate that a 19 claimant‟s impairments no longer seriously affect his ability to function in the work place). 20

Furthermore, the treatment notes acknowledge that the impact of decreased marijuana use on 21 Lockwood‟s mental health is intermixed with other factors, such as her level of compliance with 2 psychotropic medications and other positive changes in her life. AR 312. The materiality of 3

Lockwood‟s substance abuse as to her ability to work is not well documented. 4

1

The only clear evidence on record that compares Lockwood‟s ability with and without the

5 impact of marijuana comes from the records of her October 2007 hospitalization. At intake, her 6

GAF was 30 (AR 454); upon discharge four days later, it was 50 (AR 450). Whether the 7 improvement was due to her cessation of marijuana or to other factors, such as taking anti-8 depressant or anti-anxiety medication (she was given Lithium, Zyprexa, Seroquel, Neurontin and 9

Risperdal during her short stay (AR 449)) is not established. Similarly, whether Lockwood would 10 have stabilized at a GAF of 50*fn7 or continued to improve if she stayed sober, on this record, is mere 11 speculation. Lockwood denied any problem related to substance abuse at her February 2011 12 examination with Dr. Butler, and he still assessed her with a GAF of 50. AR 468, 470. Additional information and/or medical testimony is needed to determine the nature and severity of limitations 14 arising from Lockwood‟s mental disorders that would remain absent her substance abuse to develop a full and fair record in support the ALJ‟s conclusion. Lockwood was prejudiced by these 16 errors. 17

Here, the record was inadequate to permit the ALJ to assess (1) whether Lockwood‟s use 18 of marijuana materially contributes to her disabilities; (2) whether, absent the use of marijuana, 19

Lockwood‟s abilities would rise to a level adequate to hold down a job. As noted above, no 20 treating physician ever opined that marijuana (as opposed to methamphetamines) contributed to 21

Lockwood‟s diagnosed impairments. No examining physician so opined. No consultative 22 examiner so opined. This conclusion seems to have been reached by the ALJ alone. Similarly, 23 while several providers noted that Lockwood might improve if she stopped using marijuana (AR 24

310, 314, 321, 448), no treating physician ever opined that the improvement would be sufficient to 25 allow her to work. Nor did a vocational expert opine that Lockwood would be able to work 26

27

28 ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job)." DSM-IV.

regular hours, or interact with co-workers and supervisors, if she remained at the level of 2 functioning she displayed when she was discharged in 2007. This again, seems to have been a 3 conclusion the ALJ reached on his own. The ALJ‟s conclusions are not supported by substantial 4 evidence in the record. 5

F.New Evidence.

6

Dr. Butler‟s report issued after the ALJ heard Lockwood‟s testimony and issued his

7 decision. It corroborates other evidence in the record, including evidence relating to Lockwood‟s 8 numerous diagnoses, GAF score, and difficulties dealing with people. The court need not decide 9 whether it constitutes new evidence sufficient to remand the case pursuant to 42 U.S.C. § 405(g), 10 because the court is remanding the case on other grounds. The ALJ on remand shall take the 11 report into consideration.

CONCLUSION

13

For the reasons stated above, the court grants Lockwood‟s motion for summary judgment

14 and remands the case. On remand, the ALJ shall evaluate each of Lockwood‟s diagnosed

impairments and consider each medical opinion in the record together with the rest of the relevant 16 evidence when determining whether Lockwood is disabled. 20 C.F.R. § 416.927(b), (c). The ALJ 17 must give appropriate weight to the opinions of Lockwood‟s treating physicians. The ALJ shall 18 conduct the required drug abuse analysis and evaluate the impact of Lockwood‟s drug use on each 19 of her severe impairments. The ALJ shall secure any appropriate consultations and/or testimony. 20

The court denies Defendant‟s motion for summary judgment.

The clerk of the court is directed to close the case.

IT IS SO ORDERED.


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