Holdman v. Astrue
Filing
29
ORDER DENYING PLAINTIFF'S 24 MOTION FOR SUMMARY JUDGMENT AND REMAND AND GRANTING DEFENDANTS 27 MOTION FOR SUMMARY JUDGMENT. Signed by Judge Claudia Wilken on 8/31/2011. (ndr, COURT STAFF) (Filed on 8/31/2011)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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BILLY HOLDMAN,
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No. C 10-01194 CW
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration
United States District Court
For the Northern District of California
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Defendant.
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/
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ORDER DENYING
PLAINTIFF'S
MOTION FOR
SUMMARY JUDGMENT
AND REMAND AND
GRANTING
DEFENDANT’S
MOTION FOR
SUMMARY JUDGMENT
(Docket Nos. 24
and 27)
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Plaintiff Billy Holdman moves for summary judgment and remand
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for a new hearing following the denial of his claim for Title XVI
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supplemental security income (SSI).
Defendant Michael J. Astrue in
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his capacity as Commissioner of the Social Security Administration
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(Commissioner) opposes the motion and moves for summary judgment.
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Having considered all of the papers filed by the parties, the Court
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DENIES Plaintiff’s motion for summary judgment and remand, and
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GRANTS Defendant’s motion for summary judgment.
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BACKGROUND
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Plaintiff was born on November 3, 1952.
He graduated from
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high school and attended college for two years.
Plaintiff's most
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recent employment was in 2004, when he provided in-home care to his
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wife, who had AIDS.
Plaintiff's wife died in February 2007.
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Plaintiff originally applied for SSI in 1974, and was found
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disabled by the Social Security Administration (SSA) due to a
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somatoform disorder.
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disability ceased as of December 18, 1997.
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Plaintiff never received notice of this termination, and, due to an
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administrative error, continued receiving benefits until January,
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2005.
SSA subsequently determined that Plaintiff's
AR 77.
However,
AR 76.
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On January 3, 2005, Plaintiff reapplied for Title XVI
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benefits, alleging he was disabled because of Hepatitis C,
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emphysema, migraine headaches, anxiety, depression, hole in eye,
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heart murmur, asthma, and severe allergies.
AR 81.
On September
United States District Court
For the Northern District of California
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8, 2005, SSA denied Plaintiff's application, finding that he did
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not suffer from complications from his claimed ailments that would
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prevent him from working.
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affirmed on reconsideration, and Plaintiff filed a timely request
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for hearing. AR 88, 89.
AR 81-82.
This determination was
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In a pre-hearing brief, Plaintiff alleged that, in addition to
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the impairments he originally claimed, he was also HIV positive and
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suffered from mental impairments, substance use problems, and
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chronic pain in his chest wall, right arm and thigh.
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AR 73.
On August 27, 2007, a hearing was held before an
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Administrative Law Judge (ALJ) in San Francisco, California.
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Plaintiff appeared and was represented by counsel.
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heard testimony from Plaintiff and two medical experts, Dr. Sergio
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Bello, an internist, and Dr. David Anderson, a psychiatrist.
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16.
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but did not testify.
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AR 16.
The ALJ
AR
Vocational expert Joel Greenberg was present at the hearing
AR 917-918.
On November 27, 2007, the ALJ issued a written decision
denying Plaintiff's claim for SSI benefits.
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The ALJ found that
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Plaintiff's symptoms and limitations due to ongoing substance abuse
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of cocaine and opiates prevented him from performing any
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substantial gainful activity.
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considered Plaintiff's limitations independent of substance abuse,
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as required by 20 C.F.R. § 419.935.
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examining internist found no physical basis for significant
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functional restrictions, and that the examining psychologist, who
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found no signs of intoxication or substance abuse, reported a
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Global Assessment Functioning (GAF) of 70, "consistent with a
AR 18-19.
However, the ALJ then
The ALJ noted that the
United States District Court
For the Northern District of California
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finding of no severe mental impairment."
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noted the opinions of Dr. Bello and Dr. Anderson, both of whom
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ascribed Plaintiff’s subjective reports of pain to "drug seeking
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behavior."
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evidence of "objective abnormalities" to support Plaintiff’s
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subjective complaints of chronic pain.
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ALJ found that Plaintiff did not suffer from any severe impairments
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other than those related to substance abuse, and was not disabled.
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AR 19-20.
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AR 19.
AR 19.
The ALJ also
The ALJ concluded that there was insufficient
AR 19.
Accordingly, the
Plaintiff filed a timely request for review of the ALJ's
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decision.
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Plaintiff's attorney submitted additional medical records, arguing
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that they showed Plaintiff suffered from severe depression since at
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least February 2007.
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notes from Dr. Rosenthal of the Contra Costa Health Services Mental
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Health Division.
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diagnosed Plaintiff with a mood disorder in March 2008,
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attributable to depression caused by the death of Plaintiff's wife
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AR 12.
In a letter to the SSA Appeals Council,
AR 910-911.
The records included treatment
According to Plaintiff’s attorney, Dr. Rosenthal
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in February 2007.
AR 910-911.
The Appeals Council denied Plaintiff's request for review.
Finding that most of the "voluminous package of medical records"
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submitted by Plaintiff related to the time period after the ALJ's
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decision of November 23, 2007, the Appeals Council accepted as
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exhibits just five pages of those records: (1) a letter from an
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administrative supervisor at UCSF Medical Center General Medicine
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Clinic notifying Plaintiff that the clinic would no longer
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prescribe him narcotics due to his failure to abide by the terms of
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United States District Court
For the Northern District of California
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his agreement with the clinic; and (2) three pages of medical chart
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notes.
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basis for reviewing the ALJ's decision.
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AR 912-916.
As a result, the Appeals Council found no
AR 5-6.
Plaintiff timely commenced this action for judicial review.
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In his "Motion for Summary Judgment and Remand to the
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Administrative Law Judge for Another Hearing," Plaintiff claims
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that the ALJ erred by failing to conduct a proper analysis of
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Plaintiff's residual functional capacity (RFC) in light of his
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substance abuse, and that the Appeals Council erred by failing to
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consider the treatment records from Dr. Rosenthal, which relate
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back to the time period before the ALJ's decision.
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LEGAL STANDARD
A court may set aside the Commissioner’s denial of disability
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benefits only when his findings are based on legal error or are not
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supported by substantial evidence in the record as a whole.
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U.S.C. § 405(g); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.
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1999).
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scintilla but less than a preponderance.”
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Substantial evidence is defined as “more than a mere
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Id. at 1098 (internal
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quotation marks omitted).
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record, weighing both the evidence that supports and contradicts
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the Commissioner’s conclusion.
The court must consider the entire
Id.
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Even when a decision is supported by substantial evidence in
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the record, it "should be set aside if the proper legal standards
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were not applied in weighing the evidence and making the decision."
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Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978) (citing
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Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968)).
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regulations, the Commissioner must apply a five-step sequential
United States District Court
For the Northern District of California
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process to evaluate a disability benefits claim.1
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bears the burden of proof in steps one through four.
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Massanari, 262 F.3d 949, 953-954 (9th Cir. 2001).
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shifts to the Commissioner in step five.
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Under SSA
The claimant
Bustamante v.
The burden
Id. at 954.
A finding of disability under the five-step inquiry does not
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The five steps of the inquiry are
1. Is the claimant presently working in a substantially
gainful activity? If so, then the claimant is not disabled
within the meaning of the Social Security Act. If not,
proceed to step two. See 20 C.F.R. § 416.920(b).
2. Is the claimant's impairment severe? If so, proceed to
step three. If not, then the claimant is not disabled. See
20 C.F.R. § 416.920(c).
3. Does the impairment "meet or equal" one of a list of
specific impairments described in 20 C.F.R. Part 220, Subpart
P, Appendix 1? If so, then the claimant is disabled. If
not, proceed to step four. See 20 C.F.R. § 416.920(d).
4. Is the claimant able to do any work that he or she has
done in the past? If so, then the claimant is not disabled.
If not, proceed to step five. See 20 C.F.R. § 416.920(e).
5. Is the claimant able to do any other work? If so, then
the claimant is not disabled. If not, then the claimant is
disabled. See 20 C.F.R. § 416.920(f).
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automatically qualify a claimant for benefits.
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with America Advancement Act (CAAA), a claimant “shall not be
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considered disabled for the purposes of [receiving benefits] if
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alcoholism or drug addiction [is] a contributing material factor to
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the Commissioner’s determination that the individual is disabled.”
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42 U.S.C. § 1382c(a)(3)(J); see also Bustamante, 262 F.3d at 954.
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Thus, if the claimant would not be disabled if he or she stopped
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using alcohol or drugs, the Commissioner must deny his or her
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benefits claim.
Under the Contract
Ball v. Massanari, 254 F.3d 817, 822 (9th Cir.
United States District Court
For the Northern District of California
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2001); see also 20 C.F.R. § 416.935 (implementing 42 U.S.C.
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§ 1382c(a)(3)(J)).
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DISCUSSION
I. ALJ's Five-step Sequential Evaluation
Citing Bustamante, 262 F.3d at 955, Plaintiff claims that the
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ALJ erred as a matter of law by failing to conduct properly the
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five-step sequential analysis before determining that Plaintiff’s
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substance abuse materially contributes to his disability.
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In Bustamante, the Ninth Circuit addressed the procedural
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requirements for denying benefits to substance abusers under 20
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C.F.R. § 416.935.
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that a claimant is disabled before determining whether substance
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abuse materially contributes to the finding of disability.
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F.3d at 955; see also Drapeau v. Massanari, 255 F.3d 1211, 1214
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(10th Cir. 2001).
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in a finding of disability, the ALJ should then decide whether the
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claimant would still be disabled if he or she stopped using drugs
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or alcohol.
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The court held that an ALJ must first conclude
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If and only if the five-step evaluation results
Bustamante, 262 F.3d at 955.
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Plaintiff argues that, under Bustamante, the ALJ was required
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to "specifically state" Plaintiff's RFC both before and after
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factoring out the effects of his substance abuse.
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out that the ALJ discussed the evaluations by the consultative
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internist and the consultative psychologist, who found no physical
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or mental limitations.
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"explicitly state" that he was adopting these assessments or
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"specifically state" his own assessment.
Plaintiff points
However, Plaintiff argues, the ALJ did not
Plaintiff's reading of the ALJ's decision is incorrect.
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United States District Court
For the Northern District of California
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Although the ALJ did not use the phrase "residual functional
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capacity," he made clear that, with substance abuse factored in, he
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found Plaintiff capable of performing no work:
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“substance abuse and related problems prevent him from obtaining
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and maintaining employment, including past work or any other kinds
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of work . . . ."
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Plaintiff’s
AR 20.
The ALJ then proceeded to factor out Plaintiff's substance
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abuse.
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assessments not only of the consultative examiners but also of the
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testifying medical experts.
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In doing so, the ALJ made clear that he agreed with the
The ALJ stated:
Considering the claimant's alleged impairments independent of
substance abuse, however, it is found that the substantial
evidence supports the assessments of the consultative
examiners and the qualified medical experts and reveals no
severe medically determined impairments which would reasonably
be expected to produce significant work related limitations of
extended duration.
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AR 19.
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§ 416.920(c), defining the "severity" requirement of step two.
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is clear that the ALJ found, after factoring out Plaintiff's
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substance abuse, that Plaintiff's impairments were not severe
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This statement tracks the language of 20 C.F.R.
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It
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enough to pass step two.
Contrary to Plaintiff's assertions, the ALJ followed
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Bustamante.
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abuse is material to the finding of disability.
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F.3d at 955.
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case, the ALJ first found Plaintiff disabled at step five with his
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substance abuse factored in, then found him not disabled at step
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two with his substance abuse factored out.
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Plaintiff not disabled at step two after factoring out Plaintiff's
Bustamante requires the ALJ to determine if substance
Bustamante, 262
If so, the claimant is not disabled.
Id.
In this
Because the ALJ found
United States District Court
For the Northern District of California
10
substance abuse, there was no need to reassess Plaintiff's RFC.
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Bustamante does not require the ALJ to continue the five step
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evaluation after the materiality of the claimant’s substance abuse
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has been established.
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not disabled.
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At that point, the claimant has been found
Plaintiff appears to suggest that the ALJ's findings were
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improper because he initially found Plaintiff disabled because of
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impairments related to his substance abuse.
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differentiating analysis under 20 C.F.R. § 416.935 a foregone
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conclusion; having found Plaintiff disabled because of his
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substance abuse, the ALJ was certain to find that Plaintiff's
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substance abuse was material to the finding of disability.
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This rendered the
There is no indication that the ALJ failed to consider
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adequately Plaintiff's other impairments.
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considered the objective evidence of Plaintiff's other impairments
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and found that it was insufficient to support Plaintiff’s
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subjective complaints.
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were those related to substance abuse.
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Rather, the ALJ
The only impairments the ALJ could identify
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The ALJ’s findings in this case are thus distinguishable from
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those in Bustamante.
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that the plaintiff's impairments were "the product and consequence
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of his alcohol abuse and not an independently severe or disabling
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impairment."
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other impairments but found that only those related to substance
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abuse were severe enough to pass step two.
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followed the procedure outlined in Bustamante and proceeded to find
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Plaintiff disabled at steps four and five, before determining
United States District Court
For the Northern District of California
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In Bustamante, the ALJ concluded at step two
262 F.3d at 955.
Here, the ALJ noted Plaintiff's
Nonetheless, the ALJ
whether the substance abuse was material to this determination.
It is important to note that Plaintiff does not challenge any
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of the ALJ's findings as unsupported by substantial evidence.
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includes the finding that there was insufficient evidence of
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objective factors to support Plaintiff's subjective complaints of
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pain; the finding that Plaintiff's complaints of pain were
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primarily motivated by his drug-seeking behavior; and the finding
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that Plaintiff's impairments other than those related to substance
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abuse were not severe.
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ALJ's decision is whether he satisfied the procedural steps under
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Bustamante.
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This
Instead, Plaintiff's only challenge to the
To be sure, the ALJ's decision is not a model of clarity.
The
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ALJ did not specifically state which of Plaintiff's limitations
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were related to substance abuse.
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that (1) with Plaintiff's substance abuse factored in, Plaintiff
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was unable to do his past relevant work or any other work in the
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national economy; and (2) with Plaintiff's substance abuse factored
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out, Plaintiff did not suffer from any severe limitations.
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However, the decision is clear
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The
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ALJ's conclusion that Plaintiff's substance abuse was material to
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the finding of the disability followed logically from these facts.
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The ALJ’s statement in his initial determination that Plaintiff's
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substance abuse was the cause of Plaintiff's disabling impairments
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was not error.
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Plaintiff’s motion to remand to the ALJ to evaluate Plaintiff’s
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disability under Bustamante is denied.
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II.
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Because the ALJ complied with Bustamante,
Appeals Council’s Consideration of New Evidence
Plaintiff argues that the Appeals Council erred when it
United States District Court
For the Northern District of California
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declined to incorporate the treatment records of Dr. Rosenthal into
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the administrative record.
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records to the Court, they apparently showed that Dr. Rosenthal
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diagnosed Plaintiff with a mood disorder in March 2008, based in
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part on Plaintiff's statement that he had been depressed since his
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wife died in February 2007.
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five pages of documents into the administrative record, AR 912-916,
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and rejected the rest, including the Rosenthal records.
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Appeals Council informed Plaintiff that the rejected records were
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"about a later time" and did "not affect the decision whether you
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were disabled beginning on or before November 23, 2007."
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Although Plaintiff did not submit these
The Appeals Council incorporated just
The
AR 6.
The Appeals Council must review a case if “new and material
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information is submitted” after the ALJ’s determination.
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§§ 404.970(b).
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directly and substantially on the matter in dispute.’”
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Massanari, 276 F.3d 453, 462 (9th. Cir. 2001) (citations omitted).
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When new evidence is considered, the Appeals Council must order
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review of a case when it finds that the ALJ’s decision is against
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20 C.F.R.
In order to be material, evidence “must ‘bear
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Mayes v.
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the weight of all the evidence currently in the record.
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§ 416.1470(b).
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reasonable possibility that the new evidence would have changed the
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outcome’” of the ALJ’s decision.
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Servs., 734 F.2d 1378, 1380-81 (9th Cir. 1984) (emphasis in
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original) (citations omitted).
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20 C.F.R.
Remand is appropriate “‘only where there is a
Booz v. Sec’y of Health and Human
Because Plaintiff did not submit the Rosenthal records to the
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Court, the Court is unable to evaluate whether there is a
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reasonable possibility that they would have changed the outcome of
United States District Court
For the Northern District of California
10
the ALJ’s decision.
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letter to the Appeals Council, there may be such a possibility.
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However, even though the records were submitted to the Appeals
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Council, they were returned to Plaintiff.
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not have access to the records, and cannot respond to Plaintiff’s
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contention that the case should be remanded for review of them.
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Accordingly, Plaintiff has not met his burden of showing that the
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new evidence submitted to the Appeals Council is material to the
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ALJ’s finding, as would be required to warrant remand.
According to the description in Plaintiff’s
Defendant therefore does
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CONCLUSION
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For the foregoing reasons, Defendant's motion for summary
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judgment is GRANTED (Docket no. 27) and Plaintiff's motion for
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summary judgment and remand is DENIED (Docket no. 24).
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shall enter accordingly.
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The parties shall bear their own costs.
IT IS SO ORDERED.
Dated: 8/31/2011
CLAUDIA WILKEN
United States District Judge
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Judgment
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