Wick v. Colvin

Filing 23

REPORT AND RECOMMENDATION re 13 and 14 Summary Judgment Motions. Objections to R&R due by 8/24/2017. A party may respond to any such objection within 14 days of being served with it. Signed by Magistrate Judge Andrew G. Schopler on 8/10/2017.(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16-cv-1987-JM-AGS

Ryan Wick,
Plaintiff,

REPORT AND RECOMMENDATION
ON SUMMARY JUDGMENT
MOTIONS (ECF Nos. 13 & 14)

v.
Nancy Berryhill, Acting Commissioner of
the Social Security Administration,
Defendant.

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In 1996, Congress amended the Social Security Act to make it much more difficult

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for drug abusers to obtain disability benefits. Under that amendment, when drug addiction

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contributes significantly to a disability, benefits are strictly prohibited. See Parra v. Astrue,

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481 F.3d 742, 744 (9th Cir. 2007). The claimant “bears the burden of proving that his

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substance abuse is not a material contributing factor to his disability.” Id. at 744-45.

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In this case, a psychiatric expert concluded that plaintiff’s drug abuse caused his

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schizophrenia to develop and worsen. Based on this, a judge denied plaintiff’s disability-

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benefits application. On appeal, plaintiff claims that substance abuse was not a material

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contributing factor to his disability. After all, the expert conceded it was “possible” that

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some schizophrenics—whether sober or drug-addicted—might be doomed to permanent

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disability. But such hypotheticals do not carry plaintiff’s burden. Even if theoretical

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schizophrenics can prove that drug abuse played no part in their disability, plaintiff has not.

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Thus, the judge’s ruling must be upheld.
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BACKGROUND

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Plaintiff Ryan Wick suffers from schizophrenia and a drug addiction disorder.

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(AR 14.) He reports that “things started messing up in my mind” around age 15, and that

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he began using marijuana at 17. (AR 262.) At 19, he used cocaine, LSD, and marijuana

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during the summer, and months later was hospitalized for his first psychotic episode.

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(AR 17, 262; see AR 40.) Shortly before he turned 20, he began using a combination of

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marijuana and the psychoactive plant Salvia divinorum, and was later hospitalized for

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another psychotic episode. (AR 17, 272.) His condition steadily declined until age 22 when

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he attempted suicide and was hospitalized for two weeks for psychotic symptoms. (AR 19,

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60, 288.) Since age 22, he denies using drugs or alcohol and has produced a negative drug

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screen. (AR 288, 321.) Although he is now on a more aggressive medication regimen, his

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condition still leaves him unable to work. (AR 59, 68-69, 112.)

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The Social Security Administration granted Wick adult disability benefits starting at

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age 22. (AR 112.) But Wick claims that he became totally disabled at age 20 and seeks

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disabled child’s benefits for the intervening two years. (AR 11); see 42 U.S.C.

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§ 402(d)(1)(B) (Social Security child’s insurance benefits require that any disability “began

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before [the claimant] attained the age of 22”).

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At the hearing on his application for child’s benefits, the main issue was whether

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Wick’s drug abuse before age 22 was a material contributing factor to his disability, which

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would be disqualifying. A psychiatric expert, Nathan Strahl, M.D., testified that “some

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adverse event” related to Wick’s substance abuse likely triggered his descent into

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schizophrenia. (AR 60.) In Dr. Strahl’s opinion, if Wick had stayed on his medications and

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not abused drugs, his condition would not have deteriorated so badly and he “likely would

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not be disabled.” (AR 60; see AR 19-20, 62.) The ALJ adopted Dr. Stahl’s opinion, found

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that substance abuse was “a contributing factor material to the determination of disability”

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before age 22, and denied Wick’s application. (AR 12, 21, 23.)

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DISCUSSION
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Standard of Review

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A court “may set aside a denial of benefits only if it is not supported by substantial

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evidence or is based on legal error.” Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 929

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(9th Cir. 2014) (citation omitted); see also 42 U.S.C. § 405(g). “Substantial evidence means

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more than a scintilla but less than a preponderance; it is such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion.” Vasquez v. Astrue, 572

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F.3d 586, 591 (9th Cir. 2008) (citation omitted).

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B.

Drug Abuse Was a Material Contributing Factor to Disability

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If drug addiction is “a contributing factor material to the Commissioner’s

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determination that the individual is disabled,” then benefits are prohibited. Parra, 481 F.3d

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at 744 (citing 42 U.S.C. § 423(d)(2)(C)). When drug abuse evidence arises, “the claimant

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bears the burden of proving that his substance abuse is not a material contributing factor to

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his disability.” Parra, 481 F.3d at 744-45. The “key factor” in this inquiry is whether the

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claimant would still be “disabled if [the claimant] stopped using drugs[.]” Ball v.

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Massanari, 254 F.3d 817, 821 (9th Cir. 2001) (citing 20 C.F.R. § 404.1535(b)(1)).

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Wick does not contest the finding that he abused drugs. (See ECF No. 13-1, at 4-7;

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AR 18, 40.) He argues instead that the ALJ erred in concluding that his substance abuse

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was a material contributing factor to his disability. But this finding is supported by

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substantial record evidence. Specifically, Dr. Strahl testified that if Wick had stopped using

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drugs and complied with his treatment course, his mental health issues would have been

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stable enough to permit gainful work. (AR 18-20, 60-65.) And although it was Wick’s

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burden to prove otherwise, he offered no other medical evidence to the contrary.

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Rather, Wick selectively reads Dr. Strahl’s testimony as supporting his claim that,

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even if he stopped using drugs, he would have still been disabled. Wick asserts that—

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regardless of any substance abuse—his mental health issues made him totally unable to

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comply with his prescribed treatment, rendering him incurably disabled. And he claims

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that Dr. Strahl supports this view because he “opined that the issue here is with
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compliance,” and that it is “possible” that someone with Wick’s impairments might be

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incapable of “seek[ing] further treatment” or doing “what is correct.” (ECF No. 13-1, at 6

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(citing AR 67).)

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This argument has two fatal flaws: the facts and the law. First, the law: “Where the

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evidence is susceptible to more than one rational interpretation, one of which supports the

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ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947,

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954 (9th Cir. 2002) (citation omitted). Thus, even if Wick’s somewhat strained take on

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Dr. Strahl’s testimony were fair, it would not matter, because that testimony is also

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susceptible to the ALJ’s rational interpretation.

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Next, the facts: Dr. Strahl testified that Wick’s drug abuse likely caused his

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schizophrenia. (AR 19, 60 (The “disorder was probably initiated by some adverse event

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due to the drugs he was taking[.]”).) And the reason the schizophrenia intensified,

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according to the doctor, was not that his disease made compliance impossible, but because

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Wick voluntarily chose to stop treatment. In fact, he thought Wick’s situation was “[n]o

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different than a diabetic who doesn’t take his medicine or a hypertensive who doesn’t take

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their medicine.” (AR 61.) Dr. Strahl returned to this theme of voluntary non-compliance

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repeatedly. (See, e.g., AR 59 (“What [Wick] has done, unfortunately to his own demise, is

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let the disorder progress basically untreated[.]”); AR 60-61 (Wick “really did himself

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damage” by not “continu[ing] on treatment.”); AR 61 (“[W]ith medicine he was acting

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more normal but he refused to do [treatment] and has suffered really irreparable harm[.]”);

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AR 67 (Wick “refused to take the medication,” which is what is “causing the demise.”);

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AR 68 (Even when “he gets better, he’ll stop his medication once again, which has

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happened multiple times in the past.”).)

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If Wick had contrary evidence, he had the burden to produce it. For example, if

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medical records reflected that voices in his head forced him to refuse his medications,

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perhaps an ALJ could find that recovery was impossible, regardless of any drug abuse. But,

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as the ALJ points out, the medical records show the opposite. On one occasion, Wick

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reported that “he was not taking the [antipsychotic medication] Zyprexa prescribed by the
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doctor” because “it made him sleepy and he did not feel that it was effective[.]” (AR 17,

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272.) And even his mother testified that he took Zyprexa “for nine months but after nine

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months, when he was about 20, he quit taking it. . . . [A]nd that’s when I saw him get

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progressively worse.” (AR 49.)

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Thus, Wick failed to meet his burden. And substantial evidence supported the ALJ’s

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conclusion that Wick’s drug abuse was a material contributing factor to his disability.

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C.

Suzanne Brown’s Letter

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Finally, Wick faults the ALJ for finding that his mother’s letter to the court included

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inaccurate information about his drug-abuse history and therefore giving it less weight.

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“An ALJ need only give germane reasons for discrediting the testimony of lay witnesses.”

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Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (citation omitted). In the letter,

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Wick’s mother, Suzanne Brown, stated that her son “has never self medicated with drugs

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or alcohol[.]” (AR 255.) The ALJ found that this statement was “not accurate” based on

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the “medical records” and Wick’s own admissions. (AR 18.) And he concluded that the

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letter was entitled to “less weight” because Brown “may not be as aware of the claimant’s

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activities and symptoms as she may believe she is.” (Id.)

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Wick complains that the ALJ took this statement out of context. Although his mother

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wrote that he never “self medicated,” Wick argues that she was not implying that he never

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“experimented” with drugs. He contends it is a matter of degree: “[s]elf medicating” is a

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“much bigger problem” than “experimenting.” (ECF No. 13-1, at 8.) But even so, his

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mother was still misinformed. Wick had a “much bigger problem” with drug use than mere

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experimentation. He abused drugs, according to the ALJ’s unchallenged finding.

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Furthermore, if we read her letter in context, as Wick requests, Brown is saying this: while

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she worries about her son’s significant psychiatric problems, she is thankful that he “never”

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had a drug problem. (See AR 18, 255.) In fact, her hearing testimony makes clear that she

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did not know of her son’s drug problem. She testified that she had no “direct knowledge of

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his abusing LSD or marijuana” and “no” memories of her son using any drugs. (AR 42.)

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So, the ALJ appropriately found that she “may not be as aware” of Wick’s activities as she

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might think, which was a germane reason for giving her comments less weight.

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CONCLUSION

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Substantial evidence supports the ALJ’s finding that drug abuse was a material

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contributing factor in Wick’s disability, and Wick failed to carry his burden to prove

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otherwise. Thus, this Court recommends that Wick’s summary judgment motion (ECF

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No. 13) be DENIED and defendant’s cross-motion for summary judgment (ECF No. 14)

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be GRANTED. The parties must file any objections to this report by August 24, 2017. See

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Fed. R. Civ. P. 72(b)(2). A party may respond to any such objection within 14 days of

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being served with it. See id.

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Dated: August 10, 2017

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