Barajas v. Commissioner Social Security Administration
Filing
26
Opinion and Order. The Commissioner's final decision denying benefits to plaintiff is AFFIRMED and this matter is DISMISSED with prejudice. IT IS SO ORDERED. Signed on 9/13/2011 by Judge Malcolm F. Marsh. (tll)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Portland Division
LUZ-MARIA BARAJAS
Plaintiff,
v.
MICHAEL ASTRUE,
Commissioner of Social
Security,
Defendant.
KIMBERLEY K. TUCKER
Swanson, Thomas & Coon
820 S.W. Second Ave, Ste 200
Portland, OR 97204
(503) 228-5222
Attorneys for Plaintiff
DWIGHT C. HOLTON
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
1 - OPINION AND ORDER
3:10-CV-680-MA
OPINION AND ORDER
GERALD J. HILL
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 MS/901
Seattle, WA 98104-7075
(206) 615-2139
Attorneys for Defendant
MARSH, Judge.
Plaintiff seeks judicial review of the Commissioner’s final
decision denying her June 28, 2004 applications for disability
insurance benefits (DIB) under Title II of the Social Security
Act, 42 U.S.C. §§ 401-34 and supplemental security income
benefits (SSI) under Title XVI of the Social Security Act,
42 U.S.C. §§ 1381-83f.
Plaintiff claims she has been disabled since June 18, 2003,
because of panic disorder, agoraphobia, bipolar disorder, chronic
fatigue syndrome, poor vision, and “problems with knees and
wrists.”
Her claim was denied initially and on reconsideration.
On January 25, 2007, the Administrative Law Judge (ALJ) held
an evidentiary hearing and on May 30, 2008, issued a Notice of
Decision finding that although plaintiff has severe physical and
psychological impairments, they would not prevent her from
performing light work if she ceased her polysubstance abuse.
On April 30, 2010, the Appeals Council denied plaintiff's
request for review.
The ALJ's decision, therefore, is the
2 - OPINION AND ORDER
Commissioner's final decision for purposes of judicial review.
Plaintiff seeks an Order reversing the Commissioner's final
decision and remanding the case for the payment of benefits.
For the following reasons, however, I AFFIRM the final
decision of the Commissioner and DISMISS this action with
prejudice.
THE ALJ'S FINDINGS
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled.
Yuckert, 482 U.S.137, 140 (1987).
Bowen v.
See also 20 C.F.R. § 416.920.
Plaintiff bears the burden of proof at Steps One through Four.
See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
Each
step is potentially dispositive.
At Step One, the ALJ found plaintiff had not engaged in
substantial gainful activity since June 18, 2003.
At Step Two, the ALJ found plaintiff has severe impairments,
including myalgia in her back, mild osteoarthritis in both knees,
depressive disorder NOS, panic disorder, borderline intellectual
functioning, and polysubstance dependence.
20 C.F.R. §404.920©
(an impairment or combination of impairments is severe if it
significantly limits an individual's physical or mental ability
to do basic work activities).
At Step Three, the ALJ found plaintiff's impairments do
not meet or equal any listed impairment.
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She has the residual
functional capacity, not considering her substance abuse,
to
perform light work that involves lifting and carrying 20 lbs
occasionally and 5 lbs frequently, standing and walking for up to
4 to 6 hours in an 8-hour work-day.
She would need to be able to
sit or stand at will, only occasionally climb, balance, kneel,
crouch or be exposed to vibrations, and she should avoid hazards.
She is able to perform simple tasks that do not involve
significant interaction with the public.
Because of her
polysubstance abuse, however, plaintiff would likely miss work at
least twice a month.
(Emphasis added).
At Step Four, the ALJ found plaintiff is unable to perform
her past relevant work as a construction worker (unskilled heavy
work), grinder (semiskilled medium work), or any other work, if
all her limitations, including substance abuse, are considered.
The ALJ also found if plaintiff quit abusing substances,
she would still have a severe impairment or combination of
impairments but she would be able to perform light work involving
lifting/carrying up to 20 lbs occasionally and 5 lbs frequently,
and standing, walking, and/or sitting for 4-6 hours in an 8-hour
workday, as long as she had the option of standing or sitting at
will.
Based on these findings, the ALJ found plaintiff’s substance
abuse is a contributing factor to a disability determination.
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Accordingly, the ALJ also found plaintiff is not disabled
and, therefore, not entitled to DIB or SSI.
LEGAL STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Roberts v. Shalala, 66 F.3d 179, 182
(9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996).
To meet
this burden, the claimant must demonstrate the inability "to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment 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).
The court must affirm the Commissioner's decision if the ALJ
applied proper legal standards and made findings supported by
substantial evidence in the entire record.
42 U.S.C. § 405(g).
"Substantial evidence” is “more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion."
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995).
The court must weigh all of the evidence whether it supports
or detracts from the Commissioner's decision.
Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
Martinez v.
The Commissioner's
decision must be upheld, however, even if the "evidence is
5 - OPINION AND ORDER
susceptible to more than one rational interpretation."
Andrews,
53 F.3d at 1039-40.
The Commissioner bears the burden of developing the record.
DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991).
The duty
to further develop the record, however, is triggered only when
there is ambiguous evidence or when the record is inadequate to
allow for proper evaluation of the evidence.
Mayes v. Massanari,
276 F.3d 453, 459-60 (9th Cir. 2001).
The decision whether to remand for further proceedings or
for immediate payment of benefits is within the discretion of the
court.
Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.), cert.
denied, 121 S. Ct. 628 (2000).
"If additional proceedings can
remedy defects in the original administrative proceeding, a
social security case should be remanded."
Lewin v. Schweiker,
654 F.2d 631, 635 (9th Cir. 1981).
DISCUSSION
The issue is whether the ALJ erred in finding plaintiff is
able to engage in substantial gainful activity if purported
limitations attributed to her admitted substance abuse, i.e., the
likelihood she would have two or more absences from the workplace
each month, are not considered.
Plaintiff contends hearing testimony of psychologist Robert
Davis, Ph.D. concerning plaintiff’s poor memory undermines the
6 - OPINION AND ORDER
ALJ’s finding that plaintiff would be able to engage in light
work if her substance abuse stopped.
Dr. Davis testified that he reviewed plaintiff’s medical
records and based on that review, concluded plaintiff suffered
from a severe cognitive disorder NOS both before she began using
cocaine and since she began using alcohol along with cocaine.
He further opined that although plaintiff’s condition did not
meet any Listing, she had “probably marked” limitations in
concentration, persistence and pace,1 as well as mild limitations
in activities of daily living and social functioning.
He also
testified, however, that plaintiff should be able to perform work
involving simple tasks in a quiet work environment in which she
has minimal interaction with the public and other employees.
Dr. Davis also opined plaintiff’s past use of cocaine and
alcohol “certainly” contributed to plaintiff’s disability “over a
good many years.”
Moreover, plaintiff’s use of cocaine until
2004 likely impacted her ability to work for at least two years.
Plaintiff argues Dr. Davis’ testimony is “equivalent” to an
opinion by psychologist Paul Guastadisegni, Ph.D, following an
extensive neuropsychological evaluation of Plaintiff in 2006 that
plaintiff suffered from Cognitive Disorder NOS, Panic Disorder,
1
In follow-up questioning from the ALJ, Dr. Davis described
plaintiff’s limitations in concentration, persistence, and pace,
as moderate.
7 - OPINION AND ORDER
Mood Disorder NOS, and Poly Substance Abuse Disorder, in early
full remission.
Dr. Guastadisegni assigned a GAF score of 47 -
Serious impairment of social, occupational or school functioning.
Dr. Guastadisegni noted plaintiff “should be encouraged to apply
for disability benefits due to her low cognitive scores and
significant mental health problems.”
On this record, the court disagrees with plaintiff that the
opinions of Dr. Davis and Dr. Guastadisegni were “equivalent,”
i.e., that plaintiff was disabled regardless of her substance
abuse issues.
As set forth above, Dr. Davis opined plaintiff’s use of
cocaine had impacted her ability to work, but she should be able
to work in a quiet work environment performing simple tasks with
limited public interaction.
Dr. Guastadisegni’s examination
focused on plaintiff’s IQ and cognitive limitations.
He did not
address the impact of plaintiff’s ongoing poly-substance abuse on
her ability to engage in substantial gainful activity other than
to state that at the time of the examination, plaintiff was in
early remission.
On this record, the court concludes the Commissioner’s final
decision denying plaintiff’s claim for DIB and SSI was supported
by substantial evidence in the record as a whole.
8 - OPINION AND ORDER
CONCLUSION
For all the reasons set forth above, the Commissioner's
final decision denying benefits to plaintiff is AFFIRMED and this
matter is DISMISSED with prejudice.
IT IS SO ORDERED.
DATED this 13 day of September, 2011.
/s/ Malcolm F. Marsh
MALCOLM F. MARSH
United States District Judge
9 - OPINION AND ORDER
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