Golden v. Colvin

Filing 20

ORDER by Judge Maria-Elena James granting 13 Motion for Summary Judgment; denying 18 Cross-Motion for Summary Judgment; remanding case. (mejlc3, COURT STAFF) (Filed on 10/17/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DANIELLE GOLDEN,

Case No. 16-cv-05362-MEJ

Plaintiff,
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ORDER RE: CROSS-MOTIONS FOR
SUMMARY JUDGMENT

v.
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CAROLYN W. COLVIN,

Re: Dkt. Nos. 13, 18

Defendant.

United States District Court
Northern District of California

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INTRODUCTION

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Plaintiff Danielle Golden (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g),

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seeking judicial review of a final decision of Defendant Carolyn W. Colvin (“Defendant”), the

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Acting Commissioner of Social Security, denying Plaintiff’s claim for disability benefits. Pending

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before the Court are the parties’ cross-motions for summary judgment. Pl.’s Mot., Dkt. No. 13;

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Def.’s Mot., Dkt. No. 18. Pursuant to Civil Local Rule 16-5, the motions have been submitted on

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the papers without oral argument. Having carefully reviewed the parties’ positions, the

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Administrative Record (“AR”), and the relevant legal authority, the Court hereby GRANTS

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Plaintiff’s Motion and DENIES Defendant’s Cross-Motion for the reasons set forth below.
BACKGROUND

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Plaintiff was born in 1981. She has an extensive history of alcohol and drug abuse, was

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homeless for five years, and has a documented history of psychiatric illness, including at least

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seventeen emergency psychiatric hospitalizations between 2010 and 2012. In July 2012, she

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began receiving inpatient psychiatric treatment. She alleges disability as the result of mental

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illness.

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SOCIAL SECURITY ADMINISTRATION PROCEEDINGS

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Plaintiff filed a claim for Supplemental Security Income under Title XVI, alleging

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disability beginning on December 31, 2005.1 On August 22, 2013, the Social Security

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Administration (“SSA”) denied Plaintiff’s claim, finding that Plaintiff did not qualify for disability

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benefits. Plaintiff subsequently filed a request for reconsideration, which was denied on

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December 6, 2013. On December 18, 2013, Plaintiff requested a hearing before an Administrative

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Law Judge (“ALJ”). Plaintiff did not appear at the February 23, 2015 hearing before ALJ

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Lisewski, but her non-attorney representative did. AR 33. ALJ Lisewski issued a notice to show

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cause for failure to appear. AR 175. Plaintiff’s representative responded to the notice on March 4,
2015, and requested a supplemental hearing on Plaintiff’s behalf. AR 177. The representative

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explained she had been unable to reach Plaintiff, who was homeless and did not have a working

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phone. Id. ALJ Lisewski found Plaintiff had constructively waived her right to appear at the

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hearing and issued an unfavorable decision on March 31, 2015. AR 13. The Appeals Council

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denied Plaintiff’s request for review on July 26, 2016. AR 1-4. This appeal follows.

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A.

Medical Evidence of Record
Plaintiff concedes that the relevant period for establishing disability for purposes of her

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eligibility under Title XVI is of April 8, 2013 through March 31, 2015, the date of the ALJ’s

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decision . Reply at 3 (citing AR 13).

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Treatment Records

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The AR demonstrates Plaintiff experienced significant disabling symptoms of mental

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illness for many years, leading to frequent psychiatric hospitalizations. See, e.g., AR 327-330

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(12/4/2010), 331-333 (10/22/2010), 334-336 (7/25/2010), 337-342 (1/8/2011), 623 (Plaintiff

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reports she was hospitalized more than twenty times), 643 (4/9/2012), 654-657 (7/16/2012). She

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was diagnosed with a psychotic disorder not otherwise specified, having bipolar disorder, and

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suffering from polysubstance abuse disorder. Id. (all); see also AR 572, 721. Plaintiff admitted

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Plaintiff also filed a Title II claim for disability insurance benefits, but now waives that claim.
See Reply at 3, Dkt. No. 19.
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using cocaine, methamphetamine, marijuana, and alcohol; she was not compliant with her

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medications, including her antipsychotic medication. See id. (all); see also AR 571-74, 623, 635-

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36.

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In July 2012, Plaintiff was referred to Bonita House, a supported independent living

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program. See AR 579-615 (7/2012-4/2013), 624, 760-794 (6/2013-2/2014). In her first year

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working with Bonita House staff, Plaintiff met weekly with a case manager and monthly with a

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psychiatrist, Dr. Floyd Brown, M.D.; she was medication adherent unless her boyfriend failed to

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give them to her; she did not have any hospitalizations or incarcerations; and she reduced her

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alcohol consumption because she wanted to be a good parent. AR 762. Although she reduced her
alcohol intake, she continued to drink daily: in June 2013, Plaintiff reported she was drinking 2

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Northern District of California

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beers per day plus an estimated 4 to 5 shots of vodka. AR 769. Her mood had significantly

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stabilized, with no evidence of depressed, elevated, or irritable mood. Id. In August 2013,

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Plaintiff reported her children were now living with her; she showed no evidence of elevated,

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irritable, or depressed mood and reported good sleep; she had reduced her alcohol consumption to

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2 beers per day. AR 774.

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In September 2013, Dr. Brown acknowledged that Plaintiff’s drinking exacerbated her

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symptoms. AR 778. Dr. Brown also stated that it was also true that Plaintiff’s alcohol use was

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triggered by the increased severity of bipolar disorder due to a combination of self-medication,

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reduced judgment, and impulse control due to manic state. Id. He noted that Plaintiff’s alcohol

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use had reduced with the stabilization of her symptoms. Id. In September 2013, Plaintiff

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indicated she wanted to stop drinking; Dr. Brown reported that Plaintiff was motivated more by

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the denial of her SSI benefits than a true desire to stop drinking. AR 780. Dr. Brown noted

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Plaintiff had appropriate affect with no evidence of elevated, irritable, or depressed mood; she

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reported good medication adherence. Id. In October 2013, she reported good medical adherence,

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reduced alcohol intake, and showed no evidence of elevated, irritable, or depressed mood. AR

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784. Her “significant reduction” in alcohol use was confirmed by her case manager in November

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and December 2013. AR 786, 790. Plaintiff continued to report good medical adherence and

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presented no signs of depressed mood. Id. (both). In February 2014, Plaintiff presented with

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pleasant affect and reported her mood was stable; she was taking an online computer course with

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the goal of becoming a web designer; her thinking was well organized; she reported good

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medication adherence and reduced drinking to one alcoholic beverage per day. AR 792.

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In September 2013, Plaintiff’s treating psychiatrist Dr. Brown completed a mental

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impairment questionnaire for Plaintiff. He diagnosed her as having Bipolar I Disorder; prescribed

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Abilify, Depakote, and Trazadone; and evaluated her as having 40 on the Global Assessment of

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Functioning (GAF) scale.2 AR 755. His clinical findings included impulsivity, impaired

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judgment when in hypomanic state, and increased alcohol use resulting from unstable moods. AR
755. He opined that Plaintiff’s impairments were not caused by substance abuse, but rather, that

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substance use was exacerbated by bipolar symptoms. Id.; see also AR 759 (“[A]lcohol

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dependence which results from unstable mood disorder with psychotic features. Alcohol use

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reduced with improved management of mood disorder.”). He anticipated her impairments or

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treatment would cause Plaintiff to be absent from work more than four days per month. AR 756.

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He opined Plaintiff had numerous marked and moderate impairments of mental abilities and

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aptitudes needed to do unskilled, semi-skilled, and skilled work; and moderate impairments in her

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ability to interact with the public, maintain socially appropriate behavior, adhere to basic standards

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of neatness and cleanliness, and use public transportation. AR 757-58. He opined Plaintiff had

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moderate restrictions in her activities of daily living; marked restrictions in maintaining social

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functioning; marked deficiencies of concentration, persistence, or pace; and would have four or

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The GAF does not correlate to the severity assessments utilized in Social Security disability
determinations. While GAF scores therefore are not dispositive as to a claimant’s general
functional abilities, they are nonetheless relevant. See Graham v. Astrue, 385 Fed. App’x 704,
706 (9th Cir. 2010); see also Wilkerson v. Berryhill, 2017 WL 4340365, at *14 (N.D. Cal. Sept.
29, 2017) (failure of ALJ to consider GAF scores from acceptable medical source and other source
or provide explanation for rejecting them was error). A GAF of 31-40 indicates “[s]ome
impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or
irrelevant) OR major impairment in several areas, such as work or school, family relations,
judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to
work. . . .)” Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders, at 34
(4th ed. 2000). A GAF of 41-50 indicates serious symptoms such as suicidal ideation, severe
obsessional rituals, or serious impairment in social, work, or school functioning. Id.
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more repeated episodes of decompensation within a 12 month period, each lasting at least two

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weeks in duration. AR 758.

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The following month, Dr. Brown also submitted a letter in support of Plaintiff’s

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application for disability benefits. AR 671. He opined Plaintiff was totally disabled by her mental

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disorders, which include bipolar disorder and alcohol dependence, and that she had made strides

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toward improvement, but was likely to remain disabled for employment for the next 12-18

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months. He stated Plaintiff’s psychiatric condition interferes significantly with her ability to

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sustain attention, complete tasks, interact appropriately with others, and adapt to novel situations;

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it also leaves her prone to impulsive behaviors and impaired judgment. Id.
In February 2015, Dr. Brown submitted another mental impairment questionnaire

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describing Plaintiff’s level of functioning. AR 700-03. Plaintiff had been sober for one month.

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AR 700. She nonetheless continued to exhibit manic symptoms, including poor judgment, lack of

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impulse control, pressured speech, and difficulty in concentrating. Id. Dr. Brown continued to

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find numerous marked and extreme limitations in Plaintiff’s work-related mental activities, and

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that Plaintiff would be absent from work more than four days per month as a result of her

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impairments or treatment. AR 701-03. He observed Plaintiff’s psychiatric condition interfered

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with her ability to follow up on appointments. AR 700. He assigned her a GAF of 40. Id.

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2.

Psychological Examiner

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On May 7, 2013, Lesleigh Franklin, Ph.D., examined Plaintiff and submitted a

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psychological report based on a three-hour evaluation and numerous tests. AR 622-34. At the

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time of testing, Plaintiff reported she had abstained from cocaine and methamphetamine use for

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over a year, but she was still consuming alcohol daily. AR 623 (one to three drinks a day, five to

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seven times per week).

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Dr. Franklin performed a variety of clinical tests to measure Plaintiff’s abilities. She found

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Plaintiff’s memory was “solid” and found Plaintiff demonstrated significant trouble with attention

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and concentration tasks and was impaired; had moderate difficulties in other areas of executive

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functioning; had adequate language skills; had variable performance on measures of visual spatial

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abilities and was impaired; and had variable performance on her overall cognitive scores. AR

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627-28. Plaintiff was not found to be exaggerating her symptoms. AR 628. Dr. Franklin opined

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Plaintiff’s symptoms were consistent with the kinds of symptoms sometime seen in bipolar

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disorders, and should not be attributed solely to her substance abuse. AR 630. She diagnosed

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Plaintiff with Bipolar I Disorder, Severe with Psychotic Features; and Alcohol Dependence; she

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assessed Plaintiff’s GAF at 45. AR 630. Dr. Franklin opined that Plaintiff’s “drinking problem is

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exacerbating her mental health problem, but it is not the cause of it. Her bipolar disorder would

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definitely exist even if she was clean and sober.” AR 631; see also AR 630 (“Her psychotic

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symptoms appear to be consistent with the kinds of symptoms sometime seen in Bipolar
Disorders, and should not be attributed solely to her substance abuse.”). While Plaintiff was not

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psychotic at the time of the evaluation, Dr. Franklin wrote Plaintiff could become psychotic

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quickly with a missed dose of medication or while under stress. AR 631. Plaintiff could be

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triggered by work stress into a manic state, in which case it would be difficult to predict her work

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behavior. AR 631. Overall, she assessed “extreme” or “marked” limitations in several areas of

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functioning needed to perform unskilled work. AR 634.

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Dr. Franklin also observed that Plaintiff was slow moving and mildly confused in the way

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that can be seen with large doses of psychotropic medication. AR 626; see also AR 625

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(observing that Plaintiff “appears to be on a lot of medications which are slowing her down”). She

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reported Plaintiff hated her medications because they made her feel tired and lifeless, like she has

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lost herself. AR 624. While the medications significantly reduced her psychosis, Plaintiff also

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reported they made her feel depressed and suicidal. AR 624.

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3.

SSA Consultants

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SSA consultant Nicole Lazorwitz, Psy. D., reviewed Plaintiff’s records through May 2013

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and opined that Plaintiff’s symptoms improved significantly while in treatment, that her mood

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improved when she was compliant with medication and treatment, that medication appeared to

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make her slow, and that her substance use appeared to be material as her symptoms significantly

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improves when she was compliant with treatment and medication. AR 46. Dr. Lazorwitz opined

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that if Plaintiff continued to refrain from substances and follows treatment, it appears she could at

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least perform simple tasks with limited contacts. AR 46; see also AR 48 (“Claimant has extensive

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history of substance abuse and psychiatric symptoms. Noted history of significant improvement

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during times of sobriety and treatment compliance. Drug and alcohol abuse appears material.

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Without ongoing substance use, claimant’s symptoms still appear to cause more than minimal

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impact on functioning, but do not entirely preclude significant gainful employment.”). Dr.

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Lazorwitz acknowledged Dr. Franklin’s assessment. AR 40. In explaining how she weighed Dr.

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Franklin’s opinion, Dr. Lazorwitz stated: “Dr. Franklin’s MSS appears to include [Claimant’s]

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ongoing substance use, therefore taken into consideration within the context of other available

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evidence.” Id.

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Northern District of California

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At the reconsideration level, another SSA consultant reviewed Plaintiff’s records through

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October 2013, including Dr. Brown’s first opinion. AR 72, 77. H. Thomas Unger, M.D., opined

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that both Plaintiff’s alcohol and drug addiction were material, and that Plaintiff would not be

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considered disabled without her substance abuse. AR 75-82. Dr. Unger explained he weighed Dr.

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Brown’s opinion dated October 23, 2013: “Partially consistent with the objecting findings—Dx—

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Polysubstance dependence.” AR 77.
Neither Drs. Lazowritz nor Unger reviewed Dr. Brown’s February 2015 opinion.

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B.

The ALJ’s Findings
The regulations promulgated by the Commissioner of Social Security provide for a five-

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step sequential analysis to determine whether a Social Security claimant is disabled.3 20 C.F.R. §

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404.1520. The sequential inquiry is terminated when “a question is answered affirmatively or

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negatively in such a way that a decision can be made that a claimant is or is not disabled.” Pitzer

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v. Sullivan, 908 F.2d 502, 504 (9th Cir. 1990). During the first four steps of this sequential

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inquiry, the claimant bears the burden of proof to demonstrate disability. Valentine v. Comm’r

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Disability is “the inability to engage in any substantial gainful activity” because of a medical
impairment which can result in death or “which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
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Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the

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Commissioner “to show that the claimant can do other kinds of work.” Id. (quoting Embrey v.

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Bowen, 849 F.2d 418, 422 (9th Cir. 1988)).

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The ALJ must first determine whether the claimant is performing “substantial gainful

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activity,” which would mandate that the claimant be found not disabled regardless of medical

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condition, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(i), (b). Here, the ALJ

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determined that Plaintiff had not performed substantial gainful activity since December 31, 2005.

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AR 19.

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At step two, the ALJ must determine, based on medical findings, whether the claimant has
a “severe” impairment or combination of impairments as defined by the Social Security Act. 20

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C.F.R. § 404.1520(a)(4)(ii). If no severe impairment is found, the claimant is not disabled. 20

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C.F.R. § 404.1520(c). Here, the ALJ determined that Plaintiff had the following severe

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impairments: bipolar disorder and polysubstance abuse. AR 19.

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If the ALJ determines that the claimant has a severe impairment, the process proceeds to

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the third step, where the ALJ must determine whether the claimant has an impairment or

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combination of impairments that meet or equals an impairment listed in 20 C.F.R. Part 404, Subpt.

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P, App. 1 (the “Listing of Impairments”). 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant’s

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impairment either meets the listed criteria for the diagnosis or is medically equivalent to the

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criteria of the diagnosis, he is conclusively presumed to be disabled, without considering age,

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education and work experience. 20 C.F.R. § 404.1520(d). Here, the ALJ determined that Plaintiff

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had an impairment or combination of impairments that meets the listings. AR 19-20.

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Specifically, the ALJ found Plaintiff’s impairments met the requirements of Listing 12.04 for

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affective disorders and 12.09 for drug and/or alcohol abuse. Id. However, the ALJ found that

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without the effects of Plaintiff’s drug and/or alcohol abuse, the limitations caused by Plaintiff’s

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remaining impairment did not meet or equal any listing. Id.

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Before proceeding to step four, the ALJ must determine the claimant’s Residual Function

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Capacity (“RFC”). 20 C.F.R. § 404.1520(e). RFC refers to what an individual can do in a work

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setting, despite mental or physical limitations caused by impairments or related symptoms. 20

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C.F.R. § 404.1545(a)(1). In assessing an individual’s RFC, the ALJ must consider all of the

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claimant’s medically determinable impairments, including the medically determinable

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impairments that are nonsevere. 20 C.F.R. § 404.1545(e). Here, the ALJ determined that Plaintiff

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has the RFC to perform the full range of exertional work, but was limited to simple, routine work

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with no more than occasional social interaction with coworkers, supervisors, and the public, and

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with some additional non-exertional limitations. AR 21-24.

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The fourth step of the evaluation process requires that the ALJ determine whether the

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claimant’s RFC is sufficient to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv);
404.1520(f). Past relevant work is work performed within the past 15 years that was substantial

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gainful activity, and that lasted long enough for the claimant to learn to do it. 20 C.F.R. §

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404.1560(b)(1). If the claimant has the RFC to do her past relevant work, the claimant is not

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disabled. 20 C.F.R. § 404.1520(a)(4) (iv). Here, the ALJ determined that if Plaintiff stopped her

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substance abuse, she would be unable to return to her past relevant work due to her non-exertional

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limitations. AR 21.
In the fifth step of the analysis, the burden shifts to the Commissioner to prove that there

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are other jobs existing in significant numbers in the national economy which the claimant can

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perform consistent with the claimant’s RFC, age, education, and work experience. 20 C.F.R. §§

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404.1520(g); 404.1560(c). The Commissioner can meet this burden by relying on the testimony of

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a vocational expert or by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404,

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Subpt. P, App. 2. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). Here, based on

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the testimony of the vocational expert, Plaintiff’s age, education, work experience, and RFC, the

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ALJ determined Plaintiff could perform work as a hotel housekeeper; officer helper; and hand

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packager, all of which were available in significant numbers in the national economy. AR 25, 36-

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37.

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LEGAL STANDARD
This Court has jurisdiction to review final decisions of the Commissioner pursuant to 42
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U.S.C. § 405(g). The ALJ’s decision must be affirmed if the findings are “supported by

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substantial evidence and if the [ALJ] applied the correct legal standards.” Holohan v. Massanari,

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246 F.3d 1195, 1201 (9th Cir. 2001) (citation omitted). “Substantial evidence means more than a

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scintilla but less than a preponderance” of evidence that “a reasonable person might accept as

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adequate to support a conclusion.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002)

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(quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). The

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court must consider the administrative record as a whole, weighing the evidence that both supports

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and detracts from the ALJ’s conclusion. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989).

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However, “where the evidence is susceptible to more than one rational interpretation,” the court
must uphold the ALJ’s decision. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989).

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Determinations of credibility, resolution of conflicts in medical testimony, and all other

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ambiguities are to be resolved by the ALJ. Id.
Additionally, the harmless error rule applies where substantial evidence otherwise supports

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the ALJ’s decision. Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990). A court may not

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reverse an ALJ’s decision on account of an error that is harmless. Molina v. Astrue, 674 F.3d

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1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56

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(9th Cir. 2006)). “‘[T]he burden of showing that an error is harmful normally falls upon the party

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attacking the agency’s determination.’” Id. (quoting Shinseki v. Sanders, 556 U.S. 396, 409

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(2009)).
DISCUSSION

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A.

Whether the ALJ’s Decision is Based on Substantial Evidence
Because the ALJ’s evaluation of the materiality of Plaintiff’s substance use is inexorably

intertwined with the ALJ’s weighing of opinion evidence, the Court analyzes both issues together.

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1.

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“Cases in [the Ninth Circuit] distinguish among the opinions of three types of physicians:

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(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the

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claimant (examining physicians); and (3) those who neither examine nor treat the claimant

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Opinions by Treating and Examining Physicians

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(nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, an

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opinion of a treating physician should be favored over that of a non-treating physician. Id. at 830–

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31. However, a treating physician’s opinion “is not binding on an ALJ with respect to the

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existence of an impairment or the ultimate determination of disability.” Tonapetyan v. Halter, 242

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F.3d 1144, 1148 (9th Cir. 2001). If a treating physician’s opinion is uncontradicted, an ALJ must

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give “clear and convincing” reasons that are supported by substantial evidence to reject the

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opinion. Lester, 81 F.3d at 830-31. If the treating physician’s opinion is contradicted, an ALJ

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needs to only give “specific and legitimate reasons [that are] supported by substantial evidence in

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the record” to reject the opinion. Id. Further, the opinions of a specialist about medical issues
related to his or her area of specialization are given more weight than the opinions of a

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nonspecialist. 20 C.F.R. § 404.1527(c)(5); 20 C.F.R § 416.927(c)(5). “The opinion of a

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nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection

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of the opinion of either an examining physician or a treating physician.” Lester, 81 F.3d at 831

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(describing circumstances in which opinion of nonexamining physician constituted substantial

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evidence). “The ALJ is responsible for determining credibility and resolving conflicts” or

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ambiguities in the medical evidence. Magallanes, 881 F.2d at 750.

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Here, the ALJ placed “considerable weight” on the opinions of the two state consultants

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because these were based on a thorough review of the evidence, and they were not inconsistent

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with other substantial evidence of record. AR 23. Although the consultants had not been able to

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review Plaintiff’s more recent records, including Dr. Brown’s 2015 opinion, their “opinions

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continue to represent a reasonable consideration of [Plaintiff’s] functioning given her treatment

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history and polysubstance use.” Id.

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The ALJ gave Dr. Brown’s opinions no weight because: (1) Dr. Brown noted plaintiff’s

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symptoms improved as her alcohol use was reduced, and (2) Dr. Brown formulated his opinion

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after Plaintiff had abstained for only one month, and “individuals often require more than one

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month of sobriety before discovering whether their symptoms truly arise from their mental

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impairments rather than their substance use.” Id. The ALJ also placed little weight on Dr.

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Franklin’s opinion because: (1) Dr. Franklin saw Plaintiff only once; (2) Dr. Franklin did not have

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an opportunity to review the entire record; and (3) her opinions are not consistent with the overall

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record as it fails to adequately consider Plaintiff’s drug and alcohol use. Id.
3.

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If a claimant is found to be disabled and there is medical evidence of a substance use

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disorder, the ALJ must determine whether the substance use disorder is a contributing factor

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material to the determination of disability. AR 18. In making that determination, the ALJ must

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evaluate the extent to which the claimant’s mental and physical limitations would remain if the

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claimant stopped the substance use. Id. If the remaining limitations would not be disabling, the

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substance use disorder is a contributing factor material to the determination of disability, and the

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Materiality of Drug and Alcohol Use

claimant is not disabled. See 20 C.F.R. §§ 404.1535(b)(1), 416.935; see generally Bustamante v.

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Massanari, 262 F.3d 949, 956 (9th Cir. 2001). The claimant bears the burden of showing her

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substance use disorder is not a contributing factor material to disability. See Parra v. Astrue, 481

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F.3d 742, 748 (9th Cir. 2007).

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The ALJ found that Plaintiff’s “depression” might continue to have more than a minimal

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impact on her ability to perform basic work activities even if Plaintiff stopped her substance use.

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AR 20. The ALJ’s finding was based on the fact Plaintiff “continued to complain of depression

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during periods where it appeared she was clean and sober, though the record is not dispositive.”

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Id. The ALJ then determined that if Plaintiff stopped her substance use, she would not have an

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impairment or combination of impairments that meets or medically equals any impairments

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because she would only have mild restrictions in activities of daily living; moderate restrictions in

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social functioning; and moderate difficulties in concentration, persistence or pace. Id. The ALJ

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further determined that the absence of drug and alcohol would significantly improve Plaintiff’s

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sleep disturbances, energy level, attention and concentration; “she would no longer suffer from

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auditory hallucinations”; and she would experience no episodes of decompensation. Id. The ALJ

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found there “is no history of any episodes of decompensation or of an inability to function outside

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of a highly supportive living arrangement. There is no evidence that a residual disease process

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that has resulted in marginal adjustment such that even a minimal increase in mental demands or

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change in environment would be predicted to cause the claimant to decompensation.” AR 21.

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The ALJ did not identify the evidence that supports these conclusions. Id.

4

In evaluating Plaintiff’s RFC, the ALJ found Plaintiff had failed to “present conclusive

5

evidence that, if she ceased using drugs and alcohol, her mental impairment would remain

6

disabling. The overall record shows that her drug use has been continuous since at least 2008 with

7

very little active mental health treatment.” AR 22. The ALJ summarized Plaintiff’s numerous

8

hospitalizations prior to mid-2012, and then the improvement in Plaintiff’s symptoms after she

9

began working with the Bonita House. AR 22. Reviewing Plaintiff’s most recent clinical notes
from February 2014, the ALJ observed that Plaintiff’s mood was stable and her thinking was well

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organized without evidence of hypomanic, depression, delusions, loose or tangential associations,

12

or auditory hallucinations; she was taking her medications without complaint; and she was taking

13

an online computer course. AR 22 (citing Ex. 32/F at 33). She concluded that, “[b]ased on the

14

overall record, there is no evidence to support the notion that the disabling effects of the

15

claimant’s mental impairments would remain in the absence of all drug and alcohol use.” Id.

16

4.

Analysis

17

By the time Dr. Brown offered his first opinion regarding Plaintiff’s functioning, he had

18

been treating Plaintiff monthly for eleven months; by the time he offered his second opinion, he

19

had been treating her monthly for two-and-a-half years. Dr. Brown completed progress notes for

20

Plaintiff’s visits in which he documented her progress and her problems. Based on his treatment

21

of Plaintiff, he opined that Plaintiff’s substance abuse was exacerbated by her bipolar symptoms,

22

and that alcohol use did not cause her bipolar disorder. AR 755; see also AR 759 (alcohol

23

dependence results from unstable mood disorder), 778. Similarly, after examining and testing

24

Plaintiff for three hours, Dr. Franklin opined that Plaintiff’s “bipolar disorder would definitively

25

exist even if she was clean and sober.” AR 631. Plaintiff reported she had stopped using

26

marijuana, cocaine, and methamphetamines in June 2012. AR 765. By the time Dr. Franklin

27

completed her evaluation in July 2013, Plaintiff had stopped using cocaine and methamphetamine

28

13

1

for approximately one year; by the time Dr. Brown completed his evaluation in September 2013,

2

Plaintiff had abstained from these drugs for more than one year. Plaintiff also had reduced her

3

alcohol consumption to two beers per day. AR 774, 780; see also AR 792 (by February 2014, she

4

had reduced her alcohol consumption to a single 24 ounce beverage with 12% alcohol content).

5

By the time he completed his evaluation in February 2015, Plaintiff had stopped drinking alcohol

6

for one month. AR 700. At that point, Dr. Brown opined Plaintiff continued to exhibit manic

7

symptoms and that as a result of her psychiatric condition, she had trouble following through with

8

appointments. AR 700.
Both Drs. Brown and Franklin opined that Plaintiff’s bipolar disorder symptoms would

9

continue to impair her ability to work if she was clean and sober, and Dr. Brown found that

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Plaintiff’s symptoms in fact did continue when Plaintiff was clean and sober. The ALJ gave no

12

weight to either of these opinions, relying instead on the opinions of the SSA non-examining

13

consultants who found that Plaintiff’s substance use was material. The contrary opinions by Drs.

14

Lazorwitz and Unger cannot by themselves “constitute substantial evidence that justifies the

15

rejection” of Drs. Brown and Franklin’s opinions. See Lester, 81 F.3d at 831; Buck v. Berryhill,

16

869 F.3d 1040, 1049-50 (9th Cir. 2017) (applying Lester and finding it was error for ALJ to reject

17

opinion of examining physician based on opinion of non-examining expert, especially when

18

opinion of non-examining expert is contradicted by other source).4 The ALJ fails to identify any

19

other substantial evidence supporting her rejection of the opinions submitted by Drs. Brown and

20

Franklin.
First, the ALJ did not acknowledge the nature of Plaintiff’s bipolar disorder.5 The ALJ

21
22
23
24
25
26
27
28

4

It is not clear these opinions in fact contradict the key opinions of Drs. Brown and Franklin that
Plaintiff’s bipolar disorder exacerbated her drinking, and was not caused by her drinking. Neither
the two consultants nor the ALJ addressed these specific conclusions. The consultants also did not
differentiate between the impact of Plaintiff’s drug use, which had ceased approximately one year
before Drs. Brown and Franklin offered their opinions, and her alcohol use, which had decreased
but did not cease. This distinction is not material, as the Court concludes the ALJ failed to offer
specific and legitimate reasons for rejecting the opinions of Drs. Brown and Franklin.
5

Indeed, the ALJ found that if Plaintiff stopped the substance use, Plaintiff might continue to have
severe impairment caused by depression. AR 20 (“The claimant continues to complain of
14

1

based her conclusion that drug and alcohol use were material on the fact Plaintiff had improved

2

significantly by February 2014, when Dr. Brown noted that Plaintiff’s mood was stable and her

3

thinking was well organized without evidence of hypomanic, depression, delusions, loose or

4

tangential associations, or auditory hallucinations; she was taking her medications without

5

complaint; and she was taking an online computer course. AR 22. But the ALJ did not address

6

Dr. Brown’s concurrent assessment that Plaintiff continued to present a moderate level of risk due

7

to chronic conditions, “with high risk of psychiatric relapse and poor medication adherence.” AR

8

793. Similarly, because the ALJ gave no weight to Dr. Franklin’s opinion, the ALJ did not take

9

into account Dr. Franklin’s observation that Plaintiff has continued to demonstrate mood
instability even as she improved with treatment, and that Plaintiff sometimes appeared manic, and

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other times appeared sad, hopeless, and despondent. AR 631. The ALJ also did not acknowledge

12

Dr. Franklin’s opinion that Plaintiff “could become psychotic quickly with a missed dose of

13

medication or while under stress.” Id.; see also id. (“Due to the nature of her illness, [Plaintiff]

14

could be triggered by work stress into a manic state. If this were to occur, it is difficult to predict

15

[her] work behavior.”). Thus, while the ALJ accurately identifies evidence of improvement in the

16

record, she fails to examine this evidence in the broader context of Plaintiff’s diagnosed bipolar

17

disorder. “It is the nature of bipolar disorder that symptoms wax and wane over time. With

18

respect to such impairments, ‘improvement . . . that is only temporary will not warrant a finding of

19

medical improvement.’” Attmore v. Colvin, 827 F.3d 872, 878 (9th Cir. 2016) (error to point to

20

isolated signs of improvement; ALJ could not support finding of improvement unless claimant

21

showed sustained improvement) (quoting 20 C.F.R. § 404.1594(c)(3)(iv)); see also Michalski v.

22

Colvin, 2016 WL 4585570, at *8 (N.D. Cal. Sept. 2, 2016) (“DSM-V notes that ‘many individuals

23

with bipolar disorder return to fully functional levels between episodes.’”). The fact Plaintiff did

24

not act depressed and was not in an active manic state during certain appointments with Dr. Brown

25

does not constitute substantial evidence that her bipolar disorder is sufficiently improved to

26
27
28

depression during period where it appeared she was clean and sober, though the record is not
dispositive.”). Depression is but one of the symptoms of Plaintiff’s bipolar disorder.
15

1
2

contradict the limitations identified by Drs. Brown and Foster.
Second, there is no evidence in the record to support the ALJ’s apparent opinion that the

3

level of alcohol Plaintiff was consuming at the time of Dr. Brown’s and Dr. Franklin’s evaluations

4

was a material contributor to the mental impairments Drs. Brown and Franklin continued to

5

identify. Drs. Lazorwitz and Unger do not distinguish between Plaintiff’s admitted use of cocaine

6

and methamphetamine, her heavier use of alcohol when she first began treatment through Bonita

7

House, and the two (or no) drinks per day Plaintiff was having at the time Drs. Brown and

8

Franklin offered their opinions about her functionality.

9

Third, the ALJ misstated the evidence when she interpreted Dr. Brown’s notes that
“Plaintiff improved as her alcohol use reduced, indicat[ed] that her alcohol use has played a

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10

significant part in her functioning.” AR 23. In fact, as described above, Dr. Brown indicated

12

repeatedly that Plaintiff’s alcohol use was reduced as her symptoms improved and that Plaintiff

13

drinks more as a result of her bipolar disorder. The ALJ also notes that Dr. Brown indicated

14

Plaintiff remains symptomatic after abstaining from alcohol for only a month, but argues this

15

opinion is not well-supported by the objective medical evidence nor consistent with the record

16

because “individuals often require more than one month of sobriety before discovering whether

17

their symptoms truly arise from their mental impairments rather than their substance use.” AR 23

18

(referring to Dr. Brown’s February 2015 mental impairment questionnaire (AR 700-703)). By this

19

time, Dr. Brown had been treating Plaintiff on a monthly basis for two-and-a-half years. The ALJ

20

offers no basis for her assumption that Dr. Brown, as a licensed psychiatrist working with Bonita

21

House’s clientele and with Plaintiff in particular, might not be aware of the amount of sobriety

22

required before discovering whether a patient’s symptoms truly arise from mental impairments

23

rather than substance abuse. Moreover, a Social Security claimant need not demonstrate a period

24

of abstinence from substance use in order to be considered disabled. “[A]n acceptable medical

25

source can provide a medical opinion regarding whether the claimant’s impairments would be

26

severely limiting even if the claimant stopped abusing drugs or alcohol. We consider the opinion

27

of an acceptable medical source sufficient evidence regarding materiality as long as the acceptable

28

16

1

medical source provides support for their opinion.” Soc. Sec. R. 13-2p(6)(c)(4). There is no

2

dispute Dr. Brown is an acceptable medical source. He provided support for his first opinion by

3

explaining that Plaintiff’s disorder exacerbated her drinking and that her drinking did not cause her

4

bipolar disorder or manic states, even if it could exacerbate them. He also provided support for his

5

opinion that, even when sober, Plaintiff continued to exhibit manic symptoms, including poor

6

judgment, lack of impulse control, pressured speech, and difficulty concentration. He further

7

explained that Plaintiff had difficulty following through with appointments because of her

8

condition.
Fourth, the ALJ offers no basis for her assumption that Dr. Franklin’s examination “fails to

9

adequately consider” Plaintiff’s drug and alcohol use (AR 23). As indicated above, Dr. Franklin

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10

opined Plaintiff’s psychotic symptoms appear to be consistent with the kinds of symptoms

12

sometime seen in bipolar disorder, and should not be attributed solely to her substance abuse; that

13

Plaintiff would continue to be disabled even when clean and sober; and that Plaintiff could be

14

“quickly” triggered into a manic state by one missed dose of medication or by a work stress (AR

15

630-31). Thus, the evidence demonstrates Dr. Franklin did explicitly consider Plaintiff’s

16

substance abuse in evaluating her ability to work.6
For these reasons, the Court finds the ALJ did not articulate specific and legitimate reasons

17
18

for rejecting the opinions of Drs. Brown and Franklin, and did not base her finding that Plaintiff’s

19

drug and alcohol abuse was material to her impairment on substantial evidence.

20
21
6

27

The ALJ’s remaining reasons for rejecting Dr. Franklin’s opinions are not legitimate. The ALJ
rejected Dr. Franklin’s conclusions because she only saw Plaintiff once. AR 23. While this might
be a specific and legitimate reason for rejecting Dr. Franklin’s opinion in favor of the opinion of a
physician who saw Plaintiff more than once, here the ALJ relied instead on the opinions of SSA
consultants who never saw Plaintiff. The ALJ also rejected Dr. Franklin’s opinion because Dr.
Franklin had not had the opportunity to review the entire record. Id. But the ALJ placed
considerable weight on the opinions of the non-examining SSA consultants despite the fact they
were not able to consider the full record. Id. Dr. Franklin’s July 2013 opinion reflects a thorough
summary of Plaintiff’s medical history and is consistent with Dr. Brown’s September 2013
opinion, and the ALJ does no identify what records she believes Dr. Franklin would have needed
to consider to render her opinion worthy of consideration.

28

17

22
23
24
25
26

1

B.

Plaintiff argues the ALJ erred in denying her request for a hearing without determining

2
3

Plaintiff’s Nonappearance at the Hearing

whether she had good cause for failing to appear at the original hearing. See Pl.’s Mot. at 8-10.

4

At the February 23, 2015 hearing, Plaintiff’s representative appeared but Plaintiff did not.

5

When an appointed representative appears at the hearing, and continues to represent the claimant

6

at the hearing but is unable to locate the claimant, the ALJ may determine the claimant has

7

constructively waived the right to appear. HALLEX I-2-4-25(D)(2)(a) (Appointed Representative

8

Appears at Hearing Without the Claimant).7 The ALJ did not find Plaintiff had constructively

9

waived her right to appear during the hearing; on the contrary, she noted on the record that she
would “issue a notice to show cause and see where we go from there. I will consider, depending

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10

on what comes in, I will consider whether if she was a necessary witness.” AR 35-36. The ALJ

12

issued the notice requesting Plaintiff show cause for her failure to appear; if the ALJ decided

13

Plaintiff had a good reason for missing the hearing, another hearing would be scheduled. AR 175.
Plaintiff’s representative responded on her behalf, explaining she was unable to locate

14
15

Plaintiff, but had learned from Plaintiff’s father that Plaintiff was homeless, had no phone, and

16

was emotionally unstable. AR 177. Plaintiff’s representative asked the ALJ to consider these

17

circumstances as good cause for the failure to appear and asked for a hearing to be scheduled so

18

that Plaintiff could testify. Id. “The term ‘good cause’ refers to a reasonable explanation for

19

failing to comply with a requirement. When determining whether good cause exists . . . an ALJ

20

must base his or her decision on the circumstances of each individual case. In doing so, the ALJ

21

must consider any physical, mental, educational, or linguistic limitations that may have prevented

22

the claimant from appearing at the scheduled time and place of the hearing.” HALLEX I-2-4-

23

25(B). Circumstances that generally establish good cause include “unforeseeable events” that did

24

not provide the claimant or her representative enough time to notify the ALJ and request a

25
26
27
28

7

HALLEX is the Commissioner’s Hearings, Appeals, and Litigation Manual, an internal SSA
policy manual. Lockwood v. Comm’r of Soc. Sec., 616 F.3d 1068, 1072 (9th Cir. 2010). It is not
binding upon this Court. Id.
18

1
2

postponement of the hearing. HALLEX I-2-4-25(C)(1)(b).
The ALJ did not schedule a subsequent hearing, and also did not address whether the

3

circumstances stated in the response to the notice constituted good cause. In her decision, the ALJ

4

stated only that Plaintiff’s representative had been unable to locate Plaintiff. AR 16. The ALJ did

5

not evaluate the mental and physical limitations Plaintiff’s representative identified in her

6

response, and did not specifically address why the proffered reasons for missing the hearing did

7

not constitute good cause. Citing HALLEX I-2-4-25(2)(a), the ALJ nevertheless found Plaintiff

8

had constructively waived her right to appear. AR 16.

9

If an ALJ finds the claimant has constructively waived the right to appear at the hearing,
“the ALJ will advise the appointed representative, either on the record during the hearing or in

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10

writing thereafter, that he or she will not sent a Request to Show Cause for Failure to Appear to

12

the claimant.” HALLEX I-2-4-25(D)(2)(a). If an ALJ finds the claimant has not constructively

13

waived the right to appear, the ALJ will advise the representative that a Request to Show Cause

14

will be sent to ask why she did not appear at the hearing. After the response period expires, if the

15

claimant fails to respond to the request to show cause or fails to show good cause for failing to

16

appear, the ALJ may determine the claimant has constructively waived her right to appear and

17

issue a decision based on the evidence of record. HALLEX I-2-4-25(D)(2)(b). Based on the

18

record, it appears the ALJ proceeded under section (D)(2)(b), which requires the ALJ to evaluate

19

whether Plaintiff had shown good cause for failing to appear, and not (D)(2)(a). The ALJ’s failure

20

to do so was error.

21

Defendant nevertheless argues that any error was harmless because Plaintiff’s presence at

22

the hearing was not necessary. Def.’s Mot. at 4-5. The Court does not agree. The ALJ rejected

23

the opinions of Plaintiff’s treating and examining physicians. The ALJ also found Plaintiff not

24

entirely credible because she continued to use alcohol despite her treater’s recommendation to

25

stop; she had a poor work history; and she appeared to be motivated to stop drinking by a denial of

26

benefits. Questioning Plaintiff during the hearing may have allowed the ALJ to understand

27

whether Plaintiff’s inability to stop drinking and/or her poor work history were caused by her

28

19

1

bipolar disorder.8 Similarly, Plaintiff would have had the opportunity to explain that her

2

motivation to stop drinking was equally motivated by her desire to continue visitations with her

3

children. See AR 762 (“She reports that because of wanting to be a good parent that she has

4

reduced her alcohol use”). And crucially, if the circumstances described in the letter were

5

accurate, the ALJ could have questioned Plaintiff about the conditions that led to her “losing it”

6

and hitting “rock bottom” (AR 177) – including whether she had experienced a manic episode,

7

and, if so, whether that episode took place when she was medication compliant and sober. The

8

Court cannot conclude that the ALJ’s failure to evaluate whether the circumstances presented

9

constituted good cause for Plaintiff’s absence from the hearing was harmless error.
CONCLUSION

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10

For the reasons stated above, the Court GRANTS Plaintiff’s Motion for Summary

12

Judgment, DENIES Defendant’s Cross-Motion for Summary Judgment, REVERSES the ALJ’s

13

decision, and REMANDS the case for further proceedings. The ALJ shall evaluate whether

14

Plaintiff’s drug and alcohol use were material factors contributing to her disability based on a

15

proper weighing of the medical opinions of record and, if there was good cause for her failure to

16

appear and Plaintiff appears at a subsequent hearing, on Plaintiff’s testimony.
IT IS SO ORDERED.

17
18

Dated: October 17, 2017
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

19
20
21
22
23
24
25
26
27
28

8

Because the Court is remanding the case for further proceedings, including potentially hearing
Plaintiff’s testimony, it does not decide whether the ALJ erred in evaluating her credibility. See
Pl.’s Mot. at 17-19. The Court does note the ALJ’s reasoning suggests she did not take into
account the nature of Plaintiff’s bipolar disorder, including impulsivity and poor judgment.
Moreover, the Ninth Circuit has remarked that “it is a questionable practice to chastise one with a
mental impairment for the exercise of poor judgment in seeking rehabilitation.” Nguyen v. Chater,
100 F.3d 1462, 1465 (9th Cir. 1996) (citation omitted); Willig v. Berryhill, 2017 WL 2021369, at
*7 (N.D. Cal. May 12, 2017) (ALJ erred by failing to evaluate whether noncompliance with
treatment was result of borderline personality disorder or depression).
20