Missell v. Colvin

Filing 17

ORDER that the decision of the ALJ is affirmed and the Clerk of the Court shall enter judgment accordingly. Signed by Senior Judge James A Teilborg on 5/19/2014. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Carolyn W. Colvin, Acting Commissioner)
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of Social Security,
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Defendant.
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Trevor Davis Missell,

No. CV 13-8226-PCT-JAT
ORDER

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Plaintiff filed for social security disability benefits. After a hearing before an

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Administrative Law Judge (“ALJ”), Plaintiff’s application was denied. Doc. 11-3 at 14-25.

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Plaintiff has appealed that denial to this Court.

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Plaintiff alleges three claims of error on appeal: 1) the ALJ improperly rejected the

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testimony of the treating physician; 2) the ALJ misinterpreted the opinion of a consulting

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physician; and 3) the ALJ did not have substantial evidence upon which to discredit the

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testimony of Plaintiff. Doc. 12 at 2.

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I.

Factual background

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The parties are familiar with the factual background in this case, and it is summarized

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in the ALJ’s decision. Doc. 11-3 at 14-25. Therefore, the Court will reference it only as

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necessary to the decision below.

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II.

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Review of ALJ’s Decision
The ALJ’s decision to deny benefits will be overturned “only if it is not supported by

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substantial evidence or is based on legal error.” Magallanes v. Bowen, 881 F.2d 747, 750 (9th

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Cir. 1989). In determining whether there is substantial evidence to support a decision, this

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Court considers the record as a whole, weighing both the evidence that supports the ALJ’s

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conclusions and the evidence that detracts from the ALJ’s conclusions. Id. If there is

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sufficient evidence to support the ALJ’s determination, the Court cannot substitute its own

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determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990). Additionally, the

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ALJ is responsible for resolving conflicts in medical testimony, determining credibility, and

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resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Thus,

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if on the whole record before this Court, substantial evidence supports the ALJ’s decision

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and the decision is free of legal error, this Court must affirm it. See Hammock v. Bowen, 879

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F.2d 498, 501 (9th Cir. 1989); see also 42 U.S.C. § 405(g).

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III.

Claims of Error on Appeal

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Before the Court turns to the particular claims of error on appeal, the Court notes that

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an overarching argument of Plaintiff appears to be that the ALJ did not properly address

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Plaintiff’s substance abuse. The Government has summarized the law regarding the ALJ’s

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obligations regarding a claimant’s substance abuse as follows:

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In cases where an ALJ finds that a claimant who is abusing drugs or
alcohol is disabled, she must undertake a “DAA” analysis as to whether such
substance abuse is material to the finding of disability. See 20 C.F.R. §
404.1535; see also 42 U.S.C. § 1382c(a)(3)(J); Social Security Ruling (SSR)
13-2p, 78 Fed. Reg. 11,939, 11,941 (Feb. 20, 2013). If the ALJ determines
pursuant to the DAA analysis that the individual would not be found disabled
absent the substance abuse, then she must find the claimant not disabled. See
20 C.F.R. § 404.1535; SSR 13-2p, 78 Fed. Reg. at 11,941. As here, where the
ALJ finds that the claimant is not disabled regardless of his substance abuse,
she need not conduct the DAA analysis.

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Doc. 15 at 8, n.4. Plaintiff does not dispute this summary of the law. However, Plaintiff
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does argue that without doing a DAA analysis, the ALJ nonetheless used Plaintiff’s
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substance abuse as a basis to find Plaintiff not disabled. The Court will address this issue in
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the context of each of Plaintiff’s arguments below.
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A.

ALJ’s rejection of the treating physician’s opinion

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Plaintiff argues that the ALJ improperly rejected the testimony of his treating
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psychiatrist, Dr. Nagella. Doc. 12 at 5.
“Where a treating physician’s opinion is not contradicted by another doctor,
it may be rejected only for clear and convincing reasons. Thomas v. Barnhart,
278 F.3d 947, 956-57 (9th Cir.2002). However, the ALJ can reject the opinion
of a treating physician in favor of the conflicting opinion of another examining
physician “if the ALJ makes ‘findings setting forth specific, legitimate reasons
for doing so that are based on substantial evidence in the record.’ ” Id. at 957
(quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989)).”
Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).

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In this case, Dr. Nagella treated Plaintiff on March 12, 2010, and diagnosed Plaintiff

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with various mental limitations. Doc. 11-3 at 22. The ALJ rejected Dr. Nagella’s diagnosis

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for two reasons. First, the ALJ found that Dr. Nagella accepted Plaintiff’s subjective

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complaints without regard to Plaintiff’s on-going substance abuse. Doc. 11-3 at 23. Second,

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the ALJ found that Dr. Nagella’s opinion was not supported by the greater record, regardless

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of Plaintiff’s substance abuse. Id.

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The record in this case reveals that Plaintiff has a long and significant history of

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substance abuse.

Doc. 11-3 at 19 (finding a history of Plaintiff abusing heroin,

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methamphetamine, marijuana, alcohol, and Seroquel (obtained from a friend), and misuse

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of Plaintiff’s own prescription medications). However, as the Government noted in footnote

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4 of its brief, the ALJ determined that even while using all of these drugs, Plaintiff was not

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disabled. Therefore, the ALJ did not have to do a DAA analysis. Conversely, Plaintiff

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argues that if his drug use was the basis to discredit, for example, the opinion of his treating

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physician, then the ALJ’s conclusion that Plaintiff is not disabled regardless of his drug

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abuse is inconsistent reasoning; and, therefore, there is a lack of substantial evidence to

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support the ALJ’s ultimate decision. Doc. 12 at 5.

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Turning to the ALJ’s second reason for rejecting Dr. Nagella’s testimony, the ALJ

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found it was not supported by the record as a whole. Specifically, the ALJ noted that the

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November 2011 progress notes from the West Yavapai Guidance Center (“WYGC”) showed

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Plaintiff had far higher functioning than Dr. Nagella’s opinion. Doc. 11-3 at 23. Because

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this was also a treating source for Plaintiff (id. at 16), the ALJ was correct to compare the

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treating source medical information and to decide which source to credit. See Andrews, 53
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F.3d at 1039. Further, the ALJ also credited the state agency reviewing physicians over Dr.

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Nagella because the state agency physicians’ findings were consistent with the record as a

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whole, including the WYGC’s progress notes and Plaintiff’s own reports of his daily

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activities. Id.

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Thus, the Court finds the ALJ set forth specific and legitimate reasons supported by

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substantial evidence of record for not crediting Dr. Nagella’s opinion. As a result, the Court

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need not consider the ALJ’s alternative reason for rejecting Dr. Nagella’s opinion.

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B.

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Plaintiff argues that the ALJ gave “greater weight” to the opinion of examining

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physician, Dr. Gill, but mis-characterized Dr. Gill’s opinion. Doc. 12 at 7. Specifically, the

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ALJ stated that greater weight was given to Dr. Gill’s opinion, “to the extent [the opinion]

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supports a finding that claimant can perform simple and repetitive tasks on a regular and

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sustained basis with limited social contact in the workplace.” Doc. 11-3 at 12. On appeal,

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Plaintiff argues that Dr. Gill’s opinion, taken as a whole, does not support that Plaintiff can

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perform simple and repetitive tasks on a sustained basis. Doc. 12 at 7.

The ALJ’s summary of Dr. Gill’s opinion

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The ALJ is responsible for resolving conflicts and ambiguities in the evidence, not this

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Court. See Andrews, 53 F.3d at 1039. Further, if the evidence is susceptible to more than

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one rational interpretation, one of which supports the ALJ’s decision, then this Court will

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affirm the decision. Id. at 1040.

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Here, the ALJ finds that Dr. Gill’s assessment supports a conclusion, specifically that

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Plaintiff “can perform simple and repetitive tasks on a regular and sustained basis with

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limited social contact in the workplace.” Doc. 11-3 at 12. The Court has reviewed Dr. Gill’s

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assessment. Doc. 11-9 at 72-80. The Court finds that Dr. Gill’s assessment, while subject

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to more than one interpretation, is consistent with the ALJ’s conclusion. Therefore, this

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Court will not substitute its judgment for that of the ALJ. Accordingly, the Court will not

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reverse the ALJ on this basis.

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C.

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Plaintiff claims the ALJ erred in rejecting his testimony regarding his symptoms. This

Plaintiff’s symptom testimony

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Court has held that:

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An ALJ must engage in a two-step analysis to determine
whether a claimant’s testimony regarding subjective pain or
symptoms is credible. Lingenfelter, 504 F.3d at 1035–36. First,
as a threshold matter, “the ALJ must determine whether the
claimant has presented objective medical evidence of an
underlying impairment ‘which could reasonably be expected to
produce the pain or other symptoms alleged.’ ” Id. at 1036
(quoting Bunnell, 947 F.2d at 344). The claimant is not required
to show objective medical evidence of the pain itself or of a
causal relationship between the impairment and the symptom.
Smolen, 80 F.3d 1273, 1282 (9th Cir. 1996). Instead, the
claimant must only show that an objectively verifiable
impairment “could reasonably be expected” to produce the
claimed pain. Lingenfelter, 504 F.3d at 1036 (quoting Smolen,
80 F.3d at 1282); see also SSR 96–7p at 2; Carmickle, 533 F.3d
at 1160–61 (“reasonable inference, not a medically proven
phenomenon”). If the claimant fails this threshold test, then the
ALJ may reject the claimant’s subjective complaints. See
Smolen, 80 F.3d at 1281 (citing Cotton v. Bowen, 799 F.2d 1403
(9th Cir. 1986) (reaffirmed in Bunnell, 947 F.2d 341)).

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Second, if the claimant meets the first test, then “the ALJ
‘may not discredit a claimant’s testimony of pain and deny
disability benefits solely because the degree of pain alleged by
the claimant is not supported by objective medical evidence.’ ”
Orteza v. Shalala, 50 F.3d 748, 749–750 (9th Cir. 1995)
(quoting Bunnell, 947 F.2d at 346–47). Rather, “unless an ALJ
makes a finding of malingering based on affirmative evidence
thereof,” the ALJ may only find the claimant not credible by
making specific findings supported by the record that provide
clear and convincing reasons to explain his credibility
evaluation. Robbins, 466 F.3d at 883 (citing Smolen, 80 F.3d at
1283–84 (“Once a claimant meets [step one] and there is no
affirmative evidence suggesting she is malingering, the ALJ
may reject the claimant’s testimony regarding the severity of her
symptoms only if he makes specific findings stating clear and
convincing reasons for doing so.”)); see also, e.g., Lingenfelter,
504 F.3d at 1036 (if the ALJ has found no evidence of
malingering, then the ALJ may reject the claimant’s testimony
“only by offering specific, clear and convincing reasons for
doing so”).

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Trembulak v. Colvin, No. CV-12-02420-PHX-JAT, 2014 WL 523007, at *8–9 (D. Ariz. Feb.

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10, 2014)).

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In this case, the ALJ found that Plaintiff had, “medically determinable impairments

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[that] could reasonably be expected to cause the alleged symptoms.” Doc. 11-3 at 19. Thus,

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the ALJ could reject Plaintiff’s self-reported symptoms only if the ALJ found evidence of

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malingering or made specific findings supported by the record which provided clear and

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convincing reasons to explain the ALJ’s credibility evaluation.

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First, the ALJ suggested that there was malingering. Id. Specifically, the ALJ stated:

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“one has to question [Plaintiff’s] motivation for work in light of his history of
intravenous drug abuse including heroin and methamphetamine, as well as
continued marijuana smoking. [Plaintiff] failed to differentiate between his
alleged disability and his substance abuse. [Plaintiff] appears motivated to
continue using drug, as he even misuses prescription medication.”

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Id.

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In response to this finding, Plaintiff argues on appeal that it was inappropriate for the

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ALJ to consider his drug abuse without doing a DAA analysis. Doc. 12 at 8-9. In sum, what

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Plaintiff appears to be arguing is that the ALJ may not consider Plaintiff’s drug use in any

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way unless the ALJ is going to presume that Plaintiff is disabled and do a DAA analysis.

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The Court has found nothing in the social security regulations cited by the parties that

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suggests that the ALJ may not consider Plaintiff’s drug use as a factor in the ALJ’s analysis

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unless the ALJ is going to find the claimant disabled. Said a different way, while the CFRs

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require drug use to be considered when a claimant is found to be disabled, neither party has

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cited anything that requires the ALJ to wholly pretend drug use does not exist in making the

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initial disability determination.

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Nonetheless, the Court has done its own research and determined that the Ninth

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Circuit Court of Appeals has held that an ALJ committed error when the ALJ, at step two,

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determined that a claimant’s behavioral and emotional problems were the result of his

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alcohol abuse and not “independently severe or disabling.” Bustamante v. Massanari, 262

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F.3d 949, 954-55 (9th Cir. 2001). In conclusion the Court of Appeals held, “If, and only if,

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the ALJ found that Bustamante was disabled under the five-step inquiry, should the ALJ have

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evaluated whether Bustamante would still be disabled if he stopped using alcohol.” Id. at

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955.

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Thus, the Bustamante decision suggests that the ALJ must make the initial disability

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determination without regard to whether the alcohol or drug abuse is the cause of the

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symptoms. However, what Bustamante does not speak to is whether the ALJ can consider

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drug using in making a credibility determination.

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Here, the ALJ clearly considered Plaintiff’s long history of drug use in evaluating

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whether Plaintiff was motivated to return to work. Further, the ALJ found that Plaintiff’s

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focus on drug use was his true motivation for not working. The Court finds this was not

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improper, and was a finding of malingering sufficient to reject Plaintiff’s subjective

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complaint testimony.

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Alternatively, even if the ALJ erred in relying on Plaintiff’s drug use in evaluating his

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credibility, the ALJ gave several other reasons for finding Plaintiff not credible. First, the

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ALJ found that Plaintiff’s testimony about the intensity, persistence and limiting effects of

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his symptoms was inconsistent with his testimony about his daily activities and his overall

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abilities. Doc. 11-3 at 19. Second the ALJ found that Plaintiff’s testimony was not reliable

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because it was inconsistent regarding Plaintiff’s drug and alcohol abuse (showing that

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Plaintiff was an inaccurate historian about himself).

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inconsistently regarding how his last job ended. Id. Fourth, Plaintiff was not cooperative in

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returning his paperwork regarding his state application for disability benefits. Id. at 20.

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Fifth, Plaintiff’s testimony regarding his symptoms was inconsistent with the objective

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clinical and laboratory evidence in the record. Id.

Id.

Third, Plaintiff testified

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The Court finds that these are clear and convincing reasons to find Plaintiff not

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credible and to reject his symptom testimony. On appeal, Plaintiff does not argue that these

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are not clear and convincing reasons to reject Plaintiff’s testimony. Instead, Plaintiff

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attempts to take each reason in turn and explain why the reason is not supported by

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substantial evidence of record. Thus, Plaintiff argues that this Court should review the record

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and reject each of the ALJ’s reasons as unsupported by the record.

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As listed above, first the ALJ found that Plaintiff’s testimony about the intensity,

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persistence and limiting effects of his symptoms was inconsistent with his testimony about

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his daily activities and his overall abilities. On appeal, Plaintiff does not dispute this factual

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finding. Instead, makes a legal argument that a claimant having some limited daily activities
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does not mean the claimant is not disabled. Doc. 12 at 9 (citing Robinson v. Barnhart, 469

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F.Supp.2d 793 (D. Ariz. 2006). In this case, however, the ALJ did not state Plaintiff was not

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disabled because he had limited daily activities. Instead the ALJ found that Plaintiff’s daily

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activities as recounted by Plaintiff, including maintaining personal care, eating, smoking

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marijuana, riding his bike, eating out, collecting food at a food bank, and doing some house

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work, were inconsistent with Plaintiff’s testimony regarding the severity of Plaintiff’s

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symptoms. Doc. 11-3 at 20. Thus, the ALJ found Plaintiff not credible for this reason,

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which is different than finding the Plaintiff not disabled for this reason. The Court finds this

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reason is supported by substantial evidence of record. See generally Berry v. Astrue, 622

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F.3d 1228, 1235 (9th Cir. 2010) (finding that claimant’s self-reported daily activities

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undermined claimant’s credibility regarding his claims about the severity of his limitations).

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Second, the ALJ found Plaintiff testified inconsistently about his prior drug use. On

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appeal, Plaintiff does not factually dispute this finding. Instead, Plaintiff makes a legal

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argument that it was inappropriate for the ALJ to consider his drug use without doing a DAA

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assessment. The Court finds it was not error for the ALJ to consider inconsistencies in

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Plaintiff’s testimony as evidence that he was not credible. See generally Thomas v. Barnhart,

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278 F.3d 947, 959 (9th Cir. 2002) (discounting the claimant’s credibility because she

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presented conflicting information about her drug and alcohol use). Therefore, the Court finds

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this reason is supported by substantial evidence of record.

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Third, the ALJ found that Plaintiff gave inconsistent testimony regarding how his last

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job ended, thereby undermining his credibility. Specifically, the ALJ found that Plaintiff told

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the WYGC that he was fired from his job, but testified before the ALJ that he quit his job.

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Doc. 11-3 at 19. Plaintiff factually disputes this finding on appeal as follows: “The ALJ

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asked ‘So you actually quit the job then?’ and [Plaintiff] answered ‘Yes, you could say that.’

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[citation omitted]. It was the ALJ that indicated [Plaintiff] quit his job so there is no

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discrepancy.” Doc. 12 at 9.

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The Court finds this argument disingenuous. Specifically, Plaintiff argues on appeal

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that the ALJ asking a question amounts to the ALJ making up facts even though the Plaintiff
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answered yes to the question. Clearly this finding of the ALJ is supported by the record —

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indeed by Plaintiff’s own testimony — and Plaintiff’s claim of error on appeal is wholly

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unfounded.

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Fourth, the ALJ found Plaintiff was not credible because Plaintiff was not cooperative

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in returning his paperwork regarding his state application for disability benefits. On appeal,

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Plaintiff does not dispute that he did not turn in his paperwork in a timely fashion. Instead,

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he argues that the ALJ improperly weighed this evidence because his failure to return his

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paperwork should have been weighed as evidence of his problems. Doc . 12 at 9-10.

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It is the ALJ’s duty to resolve ambiguities in the evidence and assess credibility. See

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Andrews, 53 F.3d at 1039. This Court cannot substitute its judgment for the ALJ simply

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because the evidence could be given more than one possible meaning. See Young, 911 F.2d

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at 184. Accordingly, the Court find that there is substantial evidence of record to support the

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ALJ’s finding on this fourth reason for finding Plaintiff not credible.

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Fifth and finally the ALJ discredited Plaintiff because Plaintiff’s symptom testimony

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was inconsistent with the medical evidence. On appeal, Plaintiff makes one factual claim of

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error and one legal claim of error. Regarding the legal claim, Plaintiff argues that the ALJ

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cannot discredit a claimant’s testimony solely because it is not supported by objective

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medical evidence. Doc. 12 at 10 (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.

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1998)). Here, the ALJ did not discredit Plaintiff because there was not objective medical

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evidence to support his symptoms. Instead, the ALJ discredited Plaintiff because his

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testimony about the severity of his symptoms was inconsistent with the objective evidence.

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Accordingly, the Court finds the ALJ did not commit any error on this basis.

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As to the claim of factual error, Plaintiff argues that the ALJ mis-characterized Dr.

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Towns’ notes. The ALJ’s recounts Dr. Towns’ notes as follows: “Progress notes from Dr.

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Town[]s between May and November 2011 show the claimant had normal range of motion,

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strength, muscle tone, sensation, and deep tendon reflexes in all extremities, with normal gate

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and station.” Doc. 11-3 at 20. The ALJ then concluded that these progress notes were

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inconsistent with Plaintiff’s testimony regarding his upper right extremity and neck
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complaints. Id. Plaintiff argues on appeal that Dr. Towns proscribed pain medication and

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performed a cervical nerve block, which Plaintiff argues are consistent with Plaintiff’s

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testimony. Doc. 12 at 10.

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As discussed above, the ALJ is responsible for reviewing and resolving conflicts in

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the medical testimony. Andrews, 53 F.3d at 1039. Plaintiff does not dispute that everything

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the ALJ recounted is in Dr. Towns’ notes. Plaintiff instead disputes how the ALJ interpreted

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that medical evidence and asks this Court to substitute its judgment for that of the ALJ to

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conclude that there is no substantial evidence to support the ALJ’s decision. However, this

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Court cannot substitute its judgment for the ALJ. See generally Flaten v. Sec’y of Health and

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Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Thus, because the ALJ accurately

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recounted Dr. Towns’ progress notes, which were inconsistent with Plaintiff’s testimony

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about the severity of his limitations, the Court finds there is substantial evidence to support

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the ALJ’s decision. Accordingly, the Court finds no error on this basis.

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D.

Plaintiff’s drug abuse

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As discussed above, although Plaintiff did not raise the ALJ’s failure to do a DAA as

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a specific claim of error on appeal, throughout his brief Plaintiff suggests that the ALJ’s

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failure to do a DAA analysis was error. As also discussed above, the Ninth Circuit Court of

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Appeals has held that it is error for the ALJ to rely on a plaintiff’s alcoholism as a basis to

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find him not disabled at Step 2. Bustamante, 262 F.3d at 954-55.

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Preliminarily, as further discussed above, the Court notes that neither party has cited,

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nor has the Court located, a case or regulation that prohibits an ALJ from considering drug

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and alcohol abuse in assessing a claimant’s credibility. Thus, to the extent the ALJ

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considered Plaintiff’s drug abuse in this case as a factor bearing on his credibility, the Court

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finds no error.

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To the extent the ALJ considered Plaintiff’s drug abuse in other respects in the ALJ’s

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determination that Plaintiff is not disabled, such consideration appears to run afoul of

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Bustamante, 262 F. 3d at 955. The Court has framed this issue as “to the extent” because

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whether the ALJ considered Plaintiff’s drug abuse is somewhat ambiguous in this case.
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Specifically, in conclusion the ALJ states: “Because the claimant is not disabled, regardless

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of his continued polysubstance abuse, his addictions are not contributing factors nor material

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in any way to a finding of disability in this matter.” Doc. 11-3 at 25. Based on this sentence,

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it would appear that the ALJ did not consider Plaintiff’s drug abuse and there was no error.

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However, in the next two sentences, the ALJ goes on to state: “The undersigned finds

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the claimant’s mental impairments are treatable when he abstains from drugs and alcohol and

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takes prescribed medications as directed. The claimant bears the burden of proving that

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alcoholism and drug addiction are not a contributing factor material to the determination of

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disability, and the undersigned finds he has failed to do so. see [sic] James Ball v. Massanari,

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254 F.3d 817 (9th Cir. 2011).” Doc. 11-3 at 25.

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In Ball, the Ninth Circuit Court of Appeals held that the ALJ is not required to

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“separate out” a claimant’s drug or alcohol abuse at Step 2 unless the record indicates there

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are other non-substance-abuse-related impairments that are “severe” and would pass Step 2.

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254 F.3d at 823. Based on the ALJ’s first sentence, quoted above, it appears that in this case

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the ALJ found that Plaintiff had no such severe impairments and therefore, under Ball, the

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ALJ did not have to separate out the abuse (or do a DAA analysis). Accordingly, there was

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no legal error.

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However, the second and third sentences quoted above appear to be more along the

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line of either a DAA analysis or a conflating of the DAA analysis with the initial

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determination of disability. To the extent these sentences reflect an in the alternative DAA

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analysis, there was no error. To the extent these sentences reflect that the ALJ considered

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Plaintiff’s drug abuse in finding him not disabled, such consideration is likely error under

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Bustamante, 262 F.3d at 955. An error of this nature, however, is subject to a harmless error

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review. See Parra v. Astrue, 481 F.3d 742, 747 (9th Cir. 2007).

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In this case, as discussed above, the ALJ gave specific non-drug-use reasons

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supported by substantial evidence of record, to find Plaintiff not disabled. These reasons,

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standing alone, are an adequate basis to affirm the decision of the ALJ. Therefore, to the

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extent the ALJ relied on alternative reasons based on Plaintiff’s drug use, any error was
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harmless. In other words, the Court will affirm the ALJ’s decision based on only the ALJ’s

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cited non-drug-use-related reasons for each of the ALJ’s findings and the ALJ’s ultimate

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decision.

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IV.

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Based on the foregoing, the Court finds that the ALJ did not commit any legal error
and that the ALJ’s decision is supported by substantial evidence of record. Accordingly,

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Conclusion

IT IS ORDERED that the decision of the ALJ is affirmed and the Clerk of the Court
shall enter judgment accordingly.1
DATED this 19th day of May, 2014.

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To the extent a mandate is required, the judgment shall serve as the mandate in this

case.
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