Norman v. Commissioner Social Security
Filing
20
OPINION AND ORDER. Signed on 08/08/2012 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 3:11-cv-00854-MA
TOBY M. NORMAN,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
RICHARD McGINTY
McGinty & Belcher, PC
P.O. Box 12806
Salem, OR 97301
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
District of Oregon
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204-2902
DAVID MORADO
Regional Chief Counsel
SIMONE PEREIRA CAIN
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
1301 Young St., Ste A702
Dallas, TX 75202-5433
Attorneys for Defendant
1 - OPINION AND ORDER
OPINION AND ORDER
MARSH, Judge
Plaintiff Toby M. Norman seeks judicial review of the final
decision
of
the
Commissioner
of
Social
Security
applications for disability insurance benefits
disability benefits (CDB) under 42 U.S.C.
§§
denying
his
(DIB) and child's
402(d) and 416(e) of
the Social Security Act (the Act), and supplemental security income
(SSI) disability benefits under 42 U.S.C.
138l(a) of the Act.
§
This Court has jurisdiction pursuant to 42 U.S.C.
405(g).
§
For
the reasons that follow, this court reverses the decision of the
Commissioner, and remands the case for further consideration.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff protectively filed applications for COB, DIB, and
SSI on September 11, 2006, alleging onset of disability on December
1,
1997.
The
claims
were
Plaintiff
reconsideration.
initially
requested
a
denied
hearing
and
before
upon
an
administrative law judge (ALJ).
An ALJ held a hearing on December
10,
appeared
2009,
at
which
A
testified.
plaintiff
vocational
expert,
C.
with
Kay
his
Wise,
plaintiff's mother, also appeared and testified.
2009,
the
ALJ
application -
issued
three
unfavorable
attorney
as
well
and
as
On December 18,
decisions
one
which are virtually identical in substance.
per
The
Appeals Council denied plaintiff's request for review on June 20,
2011.
The ALJ's decisions therefore became the final decisions of
the Commissioner for purposes of review.
2 - OPINION AND ORDER
Plaintiff was born July 27, 1976 and is a "younger individual"
Plaintiff completed high school through grade 11.
under the Act.
Plaintiff has no past relevant work experience, and has worked only
has
Plaintiff
janitor,
a
sporadically as
diagnosed
been
and
dishwasher,
disorder, and polysubstance abuse.
lumber mill.
a
at
psychotic
schizophrenia,
with
Plaintiff was hospitalized for
Plaintiff was
two weeks in March of 1996 for a psychotic break.
incarcerated from 2004 to 2006, and has spent several periods in
jail.
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
a
established
sequential
five-step
process for determining whether a person is disabled.
Yuckert,
137,
U.S.
482
140
(1987);
20
C.F.R.
§§
Bowen v.
404.1520(a),
Each step is potentially dispositive.
The claimant
bears the burden of proof at steps one through four.
See Valentine
416.920(b).
v.
Comm'r Soc.
Sec.
Tackett v. Apfel,
five,
the
burden
Admin.,
574 F.3d 685,
180 F. 3d 1094, 1098
shifts
to
the
(9th Cir.
689
(9th Cir.
Commissioner
to
1999).
2009);
At step
show that
the
claimant can do other work which exists in the national economy.
Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995).
Because
the same five-step process applies to plaintiff's claims for CDB,
DIB and SSI, I have set forth the ALJ's relevant findings on all
three applications below.
3 - OPINION AND ORDER
Plaintiff turned 22
years old on July 27,
1998,
and must
42
establish disability prior to that date to establish CDB.
u.s.c.
July 1,
§
Plaintiff is first insured for DIB coverage on
202(d).
and acquired
1999,
sufficient quarters
of coverage to
remain insured through June 30, 2001 ("date last insured").
to establish DIB benefits,
prior to June 30, 2001.
plaintiff must
42 U.S.C.
§
Thus,
establish disability
416(I)(3); Burch v. Barnhart,
400 F. 3d 676, 679 (9th Cir. 2005).
At step one, the ALJ found that plaintiff has not engaged in
substantial gainful activity since his alleged onset of disability.
See 20 C.F.R.
et seq.
§§
404.1520(b), 404.1571 et seq., 416.920(b), 416.971
With respect to CDB, the ALJ also found that plaintiff had
not attained age 22 prior to the alleged onset of disability, and
has not engaged in substantial gainful activity since the alleged
onset of disability.
20 C.F.R.
§§
404.102, 404.350(a) (5).
At step two, the ALJ found that plaintiff had the following
severe impairments:
as
polysubstance
schizophrenia or psychotic disorder, as well
dependency
(in remission) .
See
20
C.F.R.
§§
404.1520 (c), 416.920 (c).
At step three, the ALJ found that plaintiff's impairments, or
combination of impairments did not meet or medically equal a listed
impairment.
See 20 C.F.R.
416.920(d), 416.925, 416.926.
4 - OPINION AND ORDER
§§
404.1520(d),
404.1525,
404.1526,
The ALJ assessed plaintiff with a residual functional capacity
(RFC) to perform a full range of work at all exertional levels, but
with the following nonexertional limitations:
due to his mental
impairments he can perform unskilled work in a slower work pace
setting that
workers.
does
involve
not
See 20 C.F.R.
At step four,
§§
contact with
the
public or
404.1529, 416.927,
404.1527,
co-
416.929.
the ALJ found plaintiff unable to perform any
See 20 C.F.R.
past relevant work.
§§
404.1565, 416.965.
At step five, the ALJ concluded that considering plaintiff's
age, education, work experience, and residual functional capacity,
jobs exist in significant numbers in the national economy that the
See 20 C.F.R.
claimant can perform.
§§
404.1560(c),
416.960(c), 416.966, 404.1569, 404.1569(a).
404.1566,
Accordingly, the ALJ
concluded that Plaintiff is not disabled under the meaning of the
Act.
ISSUES ON REVIEW
On appeal
to this
court,
plaintiff contends that
the ALJ
failed to properly analyze all of the medical evidence, including
that of his treating physician, Joseph Arnold, M.D., and examining
physicians Gregory A. Cole, Ph.D., Nick Dietlein, Psy.D., and Rory
Richardson,
Ph.D.
Plaintiff alleges that the ALJ failed to give
Dr. Arnold's opinion controlling weight and failed to incorporate
all
of
the
limitations
Richardson into the RFC.
5 - OPINION AND ORDER
described
by
Drs.
Cole,
Dietlein
and
Plaintiff also alleges the ALJ erred in
favoring the opinions of nonexamining psychological consultants
over the opinions of his treating and examining physicians.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if
the Commissioner applied proper legal standards and the findings
are supported by substantial evidence in the record.
§
405(g); Andrews, 53 F.3d at 1039.
42
u.s.c.
"Substantial evidence means
more than a mere scintilla but less than a preponderance; it is
such
relevant
evidence
as
a
adequate to support a conclusion."
690.
mind
reasonable
accept
might
Id.; Valentine,
as
574 F. 3d at
The court must weigh all the evidence, whether it supports or
detracts from the Commissioner's decision.
807 F.2d 771,
772
(9th Cir.
1986).
Martinez v. Heckler,
The Commissioner's decision
must be upheld, even if the evidence is susceptible to more than
one rational interpretation.
Admin.,
1039-40.
Batson v.
Comm'r of Soc.
359 F.3d 1190, 1193 (9th Cir. 2004); Andrews,
Security
53 F.3d at
If the evidence supports the Commissioner's conclusion,
the Commissioner must be affirmed; "the court may not substitute
its judgment for that of the Commissioner."
Edlund v. Massanari,
253 F.3d 1152, 1156 (9th Cir. 2001); Batson, 359 F.3d at 1193.
Ill/
!Ill
Ill/
!Ill
6 - OPINION AND ORDER
DISCUSSION
I.
Medical Evidence.
Standards .
A.
Disability opinions are reserved for the Commissioner.
C.F.R.
§§
404.1527(e) (1),
When
416.927(e) (1).
making
20
that
determination, the ALJ generally must accord greater weight to the
opinion
of
physician.
a
treating
physician
than
that
of
an
examining
Orn v. Astrue, 495 F. 3d 625, 631 (9th Cir. 2007).
To
reject the uncontroverted opinion of a treating physician, the ALJ
must present clear and convincing reasons for doing so.
Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Rodriguez v. Bowen,
876 F.2d 759, 761-62 (9th Cir, 1989).
If two opinions conflict, an
ALJ must give "specific and legitimate reasons" for discrediting a
treating physician in favor of an examining physician.
Chater,
81 F.3d 821,
830
(9th Cir.
1995).
Lester v.
An ALJ can meet this
burden by providing a detailed summary of the facts and conflicting
medical evidence, stating his own interpretation of that evidence,
and making findings.
Tommasetti v. Astrue,
533 F.3d 1035,
1041
(9th Cir. 2008); Carmickle v. Comm'r Soc. Security Admin., 533 F.3d
1155, 1164 (9th Cir. 2008); Magallanes v. Bowen, 881 F.2d 747, 751
(9th Cir. 1989),
When evaluating conflicting opinions, an ALJ is
not required to accept an opinion that is not supported by clinical
findings, or is brief or conclusory.
7 - OPINION AND ORDER
Bayliss, 427 F.3d at 1216.
B.
Joseph Arnold, M.D.
Plaintiff complains that the ALJ erred by failing to accord
controlling weight to the opinion of his treating physician,
In a
Arnold.
January 29,
2008 letter,
Dr.
Dr.
Arnold stated that
plaintiff has been under his care for approximately 10 years, that
he
has
diagnosed
plaintiff
with
chronic
schizophrenia,
characterized by "auditory hallucinations, delusional thoughts, and
markedly disorganized behavior."
that
plaintiff's
condition
had
(Tr.
472.)
improved
Dr. Arnold stated
because
he
is
more
compliant with his medications, but that plaintiff's overall level
of
functioning
"remains
very
low."
Dr.
Arnold
provided
the
following limitations:
I believe it would be impossible for him to deal
with the public. He would have great difficulty carrying
out even simple instructions on a sustained basis. Even
minimal amounts of stress would exacerbate his symptoms .
. . . Even with medications, however, his overall condition
is tenuous, and it must again be emphasized that without
the supportive and stable environment provided by his
mother, he would not be able to function.
I do not feel that [plaintiff] is capable of gainful
employment.
(Tr. 472.)
The ALJ provided several reasons for rejecting Dr. Arnold's
2008 letter opinion.
The ALJ noted that whether plaintiff was
unable to work was question reserved to the Commissioner.
C.F.R.
§§
Arnold's
404.1527(d) (416.927(d).
2008
opinion
8 - OPINION AND ORDER
was
See 20
The ALJ also discussed that Dr.
inconsistent
with
his
subsequent
treatment notes, and that the opinion conflicted with the opinions
of examining physicians Drs. Cole and Dietlein.
Plaintiff contends that the ALJ provided insufficient reasons
for
discounting
Dr.
Arnold's
2008
opinion,
and
failed
to
distinguish between the three separate claims for COB, DIB and SSI.
Having carefully reviewed the medical
record before me,
I
conclude that the ALJ's finding that Dr. Arnold's 2008 opinion is
inconsistent with his subsequent treatment notes is not supported
by substantial evidence.
plaintiff's
psychotic
In the decisions, the ALJ indicates that
symptoms
are
improved
and
under
better
control when he is taking his medications, and that plaintiff is
stable as of July 2009.
Reviewing those treatment notes, as well
as all of Dr. Arnold's records in toto, it is clear that even if
plaintiff's
condition
had
improved,
Dr.
Arnold
considered
plaintiff's overall functioning quite low.
Indeed,
Dr.
Arnold's
treatment
notes
from
2007
to
2009
consistently reflect a GAF score of 25, indicating considerable or
serious impairment.
(Tr. 452, 453, 455, 458); American Psychiatric
Ass'n Dignostic & Statistical Manual of Mental Disorders 34
ed.
2000,
(4th
text revision) (DSM-IV-TR) (defining GAF of 30 to 21 as
"Behavior is considerably influenced by delusions or hallucination
OR serious impairment in communication or judgment indicates ... OR
inability to function in almost all areas.")
While GAF scores
alone are not determinative of the severity of mental impairments,
9 - OPINION AND ORDER
Dr.
Arnold's regular assignment of such a dramatically low GAF
score is consistent with his opinion that he considered plaintiff
to be "very low functioning," and plaintiff's condition "tenuous."
Thus,
contrary
treatment
to
notes
the
ALJ' s
consistent
conclusion,
with his
incapable of full-time employment.
I
find
Dr.
opinion that
Arnold's
plaintiff is
See Tushner v. Astrue, 2012 WL
1481493, *4 (D. Or. Apr. 27, 2012) (noting that GAF scores are not
determinative of mental illness severity, and that ALJ's failure to
discuss a GAF score by itself is not error).
Plaintiff also submits that with respect to his claims for COB
and DIB,
Dr. Arnold's 2008 opinion is not relevant and the ALJ
erred in considering it.
I disagree.
Medical evaluations made
after an a claimant's insured status has expired are relevant to a
claimant's pre-expiration condition.
Taylor v.
Cornrn' r
of Soc.
Security Admin., 659 F. 3d 1228, 1233 (9th Cir. 2011).
And,
absent
from
the
ALJ' s
COB
and
DIB
decisions
is
a
discussion of Dr. Arnold's records from April of 1996, when Dr.
Arnold saw plaintiff three times following his discharge from the
hospital for a psychotic break.
believed
that
plaintiff
On April 9,
belonged
in
the
1996,
hospital,
Dr.
Arnold
and
that
plaintiff "gives the impression that without assistance he would
not be able to function."
(Tr.
331.)
On April 18,
1996,
Dr.
Arnold noted that plaintiff was improving on medication, and that
10 - OPINION AND ORDER
plaintiff ft[a]ttributes his psychosis to drugs," which plaintiff
indicated he would avoid. 1 (Tr. 1035.)
Medical opinions that pre-date the alleged onset of disability
may be of limited relevance.
Carmickle v. Comm'r of Soc. Security
Admin.,
(9th Cir.
533 F.3d 1155,
1165
2008).
However,
in this
case, Dr. Arnold served as plaintiff's treating physician and has
a
longitudinal
history
of
plaintiff's
mental
illness.
Additionally, Dr. Arnold's 1996 treatment notes are consistent with
his
2008
opinion
assistance.
Thus,
that plaintiff is
Dr.
unable
Arnold's medical
to
function
records
without
from 1996 are
probative with respect to plaintiff's COB and DIB claims, and the
ALJ erred in failing to discuss them.
Vincent v. Heckler, 739 F.2d
1393, 1394-95 (9th Cir. 1984) (an ALJ is not required to discuss all
evidence, but must explain why significant, probative evidence is
rejected).
Thus, I find that the ALJ's reasons for discounting Dr.
Arnold's 2008 opinion are not supported by substantial evidence,
and that the ALJ erred in failing to discuss all the relevant
1
The ALJ also did not discuss a June 5, 1996 evaluation by
Bruce A. Bibby, a therapist from Polk County Mental Health, in
which plaintiff admitted to hard use of drugs, but plaintiff
claimed that he had been clean for 15 months.
In that
evaluation, plaintiff further admitted that he was abusing
alcohol at that time.
(Tr. 325-26.) As discussed later in this
opinion, on remand, Bibby's opinion may be relevant to the
evaluation of whether plaintiff's polysubstance abuse is
contributing factor material to his disability.
See Parra v.
Astrue, 481 F.3d 742, 747-48 (9th Cir. 2007), cert. denied, 552
u.s. 1141 (2008).
11 - OPINION AND ORDER
the
Accordingly,
evidence.
ALJ' s
assessment
of
Dr.
Arnold's
opinion is not sustained.
Gregory A. Cole, Ph.D.
C.
On
May
20,
2003,
Dr.
interview with plaintiff.
Cole
Dr.
a
conducted
Cole
found
psychodiagnostic
that
plaintiff
had
difficulty in the areas of attention and concentration, had below
average immediate memory capability, gave up easily on tasks, and
exhibited problems following simple instructions.
Significantly,
Dr. Cole opined:
it cannot be indicated that [plaintiff] could not work at
all in some capacity; rather it is suggested that if
[plaintiff] pursues a vocational placement in the near
future, then he will need to be assigned to tasks which
are considered to be low in stress, and where he is
that
presumed
also
is
It
supervised.
closely
[plaintiff's] psychological/behavioral deficits are such
that he would be most successful in a structured workshop
setting.
Dr.
Cole also recommended that someone else handle plaintiff's
funds, and assigned a GAF of 45.
concluded that
Dr.
Arnold's
In the three decisions, the ALJ
2008 opinion that plaintiff cannot
maintain full-time employment is contradicted by Dr. Cole's opinion
that plaintiff is not precluded from all work.
The ALJ gave Dr.
Cole's opinion great weight, finding it consistent with the record
as a whole, and by incorporating Dr. Cole's limitations into the
RFC by limiting plaintiff to "unskilled work in a slower work pace
setting."
12 - OPINION AND ORDER
Plaintiff argues that the ALJ's RFC fails to incorporate all
of the limitations described by Dr. Cole.
the ALJ's conclusion,
Dr.
I agree.
Contrary to
Cole did not recommend that plaintiff
seek vocational rehabilitation.
Instead, Dr. Cole suggested that
plaintiff needed close supervision in a low stress environment, and
would
be
best
setting."
suited
for
I reject the
reasonably
ability to work in a
Dr.
does
(9th Cir. 1988).
~structured
Cole's
limitations.
workshop
Indeed,
highly structured environment,
not
substantial gainful activity.
667
in
Commissioner's argument that the ALJ' s RFC
incorporated
sheltered workshop,
placement
establish the
the
such as a
ability to perform
See Gregory v. Bowen, 844 F.2d 664,
Because the ALJ's RFC does not incorporate
the limitations described by Dr. Cole, the ALJ's findings are not
sustained.
Thus,
the ALJ's erroneous assessment of Dr.
Cole's
opinion cannot serve as a specific, legitimate reason to discount
Dr. Arnold's opinion.
D.
Dr. Dietlein.
The
ALJ
contradicted
concluded
that
by
Dietlein,
Nick
Dr.
Arnold's
opinion
Psy.D.,
who
psychodiagnostic interview on April 10, 2007.
also
conducted
was
a
Dr. Dietlein noted
that plaintiff denied any current use of drugs or alcohol,
but
plaintiff admitted that he used marijuana and methamphetamines a
couple of time when he first got out of prison in 2006, but no
longer does.
Plaintiff also indicated that he had been using
13 - OPINION AND ORDER
marijuana and methamphetamines for many years prior to 2004, but
did not recall when he began using illicit substances.
(Tr. 383.)
Dr. Dietlein concluded that plaintiff had difficulty focusing, and
had
trouble
and
understanding
remembering
instructions.
Dr.
Dietlein observed that plaintiff would have difficulty engaging in
social interactions at an acceptable level, and could not manage
his
own
funds.
Dr.
Dietlein noted that
plaintiff denied
any
current drug or alcohol abuse or use, but Dr. Dietlein questioned
the veracity of plaintiff's report.
45.
Dr. Deitlien assigned a GAF of
The ALJ gave the opinion of Dr.
incorporated
Dr.
Dietlein' s
Dietlein great weight,
functional
limitations by
and
limiting
plaintiff to no contact with the public or with co-workers.
While I find that the ALJ's RFC accurately incorporates the
functional limitations described by Dr. Dietlein, it is difficult
to conclude that Dr.
Dietlein's opinion is consistent with the
medical record as a whole.
As discussed elsewhere in this opinion,
plaintiff's symptoms have varied in severity,
with Drs. Arnold,
Cole, and Anderson describing significantly greater limitations.
E.
Rory F. Richardson, Ph.D.
Dr. Richardson performed a psychodiagnostic evaluation on July
7, 2001. (Tr. 311-313.) Dr. Richardson concurred with the diagnosis
of schizophrenia, but recommended further psychological testing and
an MMPI-2 to determine whether it is paranoid type or disorganized
type.
Dr.
Richardson noted that plaintiff had a high level of
14 - OPINION AND ORDER
Dr. Richardson's testing demonstrated that plaintiff was
anxiety.
but was
able to perform basic math,
interpret basic
unable to
Dr. Richardson recommended total abstinence from drugs
proverbs.
for six months prior to any further neurological testing to more
what
determine
effectively
plaintiff's functioning.
impact
drugs
alcohol
and
have
on
Dr. Richardson also recommended someone
else handle plaintiff's funds.
In
the
decisions,
the
ALJ
noted
above,
the
and
Dr.
Richardson's finding that plaintiff's ability to concentrate and
focus was substantially impaired.
I find the ALJ's assessment of
Dr. Richardson's opinion to be without error.
Dr. Richardson did
not provide more specific limitations than those provided for by
the ALJ in the RFC.
State Agency Nonexamining Psychologists.
F.
The Commissioner contends that the ALJ properly considered the
assessments of the agency nonexamining psychologists, Drs. Anderson
and Rethinger.
On April 19, 2007, Dr. Anderson completed a Mental
Residual Functional Capacity Assessment, purporting to cover from
July of 1998 to the date of the evaluation, presumably relating to
(Tr.
plaintiff's SSI claim.
402-406.)
Dr. Anderson opined that
plaintiff was not significantly limited in his ability to remember
simple instructions,
did not need special supervision,
moderately limited in his ability to remember,
carry
out
detailed
instructions,
15 - OPINION AND ORDER
and
maintain
and was
understand,
and
attention
and
Significantly, Dr. Anderson discussed
(Tr. 402.)
concentration.
that plaintiff had a two-year period of very stable functioning
when
that
detailed,
Anderson
However,
(Tr.
in prison and off all drugs.
while
under
406.)
the
influence
of
Dr.
drugs,
Based
plaintiff's symptoms are quite severe and at listing level.
on her review, Dr. Anderson determined that plaintiff met Listing
12. 03,
abuse were a material
but that drug and alcohol
(Tr. 406.)
contributing to his severe mental impairments.
Anderson
Dr.
also
Psychiatric
completed
factor
Review
Technique
purporting to assess plaintiff's condition from July 1998 to June
30, 2001, his date last insured, presumably relating to plaintiff's
CDB
and
DIB
plaintiff's
vague
of
denials
drug
Anderson
Dr.
437-50.)
(Tr.
claims.
alcohol
and
use,
discussed
that
and
plaintiff was in and out of jail several times in that time-frame.
Dr. Anderson opined that plaintiff did not meet Listing 12.03, and
determined
that
plaintiff was
limited
to
simple
Paul
tasks.
Rethinger, Ph.D., concurred in Dr. Anderson's opinions.
(Tr. 427.)
In the decisions, the ALJ gives the consulting psychologists'
opinions
great
weight,
and
stating that
the
plaintiff capable of performing simple work,
consultants
found
and finding their
opinions consistent with the record as a whole.
The
ALJ's
discussion
of
opinions is wholly inadequate.
decisions,
the
ALJ
does
16 - OPINION AND ORDER
not
the
nonexamining
psychologists'
Despite issuing three separate
differentiate
Drs.
Anderson
and
Rethinger's findings as they pertain to plaintiff's claims for CDB,
DIB and SSI.
Also,
the ALJ
completely fails
to discuss
Dr.
Anderson's opinion that plaintiff's symptoms are at listing level,
and that drug and alcohol abuse are contributing factors material
to disability with respect to his SSI claim.
discuss
this
significant,
Vincent, 739 F.2d at 1394.
probative
The ALJ's failure to
evidence
is
error.
See
I conclude that the ALJ's assessment of
the nonexamining physicians opinions' in this regard is erroneous
and cannot be sustained.
Moreover,
the ALJ's blanket statement
that the nonexamining physicians' opinions are consistent with the
record as a whole also fails to account for the fact that Drs.
Anderson and Rethinger provided two very different opinions, which
the ALJ failed to separately discuss.
To
summarize,
in
this
case,
the
ALJ' s
evaluation
of
the
medical evidence was not supported by substantial evidence and
cannot
be
sustained.
legitimate
properly
reasons
evaluate
Rethinger.
to
the
The
ALJ
discount
opinions
did
not
the
opinion
of
Drs.
provide
of
Cole,
specific
Dr.
Arnold
Anderson
and
or
and
The ALJ's assessment of the remaining medical opinions
do not amount to substantial evidence given the other errors.
See
Ryan v. Comm'r of Soc. Security Admin., 528 F.3d 1194, 1201-02 (9th
Cir. 2008).
/Ill
/Ill
17 - OPINION AND ORDER
II.
Remand.
As discussed above, the ALJ's analysis of the opinions of Drs.
Arnold, Cole, Rethinger and Anderson are erroneous for the reasons
stated above.
The ALJ's subsequent RFC assessment and hypothetical
questions to the VE at step five therefore are not based upon the
proper legal standards.
The decision whether to remand for further proceedings or for
an immediate payment of benefits is within the discretion of the
court.
v.
Vasquez
Astrue,
572
F.3d
586,
593
(9th Cir.
2009);
Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000), cert. denied,
531 u.s. 1038 (2000).
proceedings.
where
there
The issue turns on the utility of further
A remand for an award of benefits is appropriate
is
no
useful
purpose
to
be
served
by
further
proceedings or where the record is fully developed.
The
Ninth Circuit
has
established a
three-part
test
"for
determining when evidence should be credited and an immediate award
of benefits directed."
Harman, 211 F. 3d at 1178.
The Court should
grant an immediate award of benefits when:
( 1) the ALJ has failed to provide legally sufficient
reasons for rejecting such evidence, (2) there are no
outstanding issues that must be resolved before a
determination of disability can be made, and (3) it is
clear from the record that the ALJ would be required to
find the claimant disabled were such evidence credited.
Id.
Where it is not clear that the ALJ would be required to award
benefits were the improperly rejected evidence credited, the court
18 - OPINION AND ORDER
has
discretion
whether
to
credit
the
evidence.
Connett
v.
Barnhart, 340 F. 3d 871, 876 (9th Cir. 2003).
In determining whether to award benefits or remand the matter
for
further
"outstanding
proceedings,
issues
the
remain
in
court
the
must
record."
determine
The
whether
Commissioner
submits that outstanding issues exist which prevent an immediate
award of benefits and I agree.
In
this
case,
when
the
evidence
from
Anderson and Rethinger is fully credited,
under the Act for all three claims.
Drs.
Arnold,
Cole,
plaintiff is disabled
With respect to plaintiff's
claims for CDB and DIB, Dr. Arnold opined that plaintiff had been
under
his care
for
10 years,
and that
plaintiff was
very
low
functioning and couldn't survive without the assistance of his
mother.
(Tr. 472.)
Dr. Arnold's treatment notes reflect that as
far back as 1996, he held the same opinion of plaintiff.
31.)
(Tr. 330-
With respect to plaintiff's claim for SSI, Dr. Cole opined in
2003 that plaintiff would work best placed in a structured work
environment,
and Drs. Anderson and Rethinger opined that he met
Listing 12.03 due to his schizophrenia.
Additionally, plaintiff's
counsel elicited testimony from the VE noting that plaintiff's need
to be re-directed often and closely supervised suggests a sheltered
work environment, as opposed to a
(Tr. 100-01.)
competitive work environment.
Accordingly, when the opinions of Drs. Arnold, Cole
19 - OPINION AND ORDER
and Anderson are fully credited, plaintiff is disabled under the
Act on his claims for CDB, DIB and SSI.
However, I cannot remand this case for an immediate payment of
benefits
because
the
record
contains
numerous
plaintiff's drug and alcohol use and abuse.
find plaintiff disabled,
references
to
Here, the ALJ did not
and thus did not reach the question of
materiality concerning his drug and alcohol abuse.
If a claimant
is found to be disabled and the record includes evidence of drug or
alcohol addiction, the ALJ must determine whether the addiction is
a
contributing
disability.
742, 746-47
factor
that
42 U.S.C.
§
is
"material"
to
the
(9th Cir. 2007), cert. denied, 552 U.S. 1141 (2008).
the ALJ determined at Step Two that
plaintiff's polysubstance abuse was in remission.
determination
claims.
of
423(d) (2) (C); Parra v. Astrue, 481 F.3d
In the instant case,
claim,
finding
is
not
supported by
substantial
However, this
evidence
on
any
but particularly with respect to plaintiff's CDB and DIB
To be sure, there is evidence from plaintiff treating and
examining physicians expressing concern about plaintiff's drug and
alcohol
abuse
dating
October of 2007.
from
1996
and
(See Tr. 325, 462.)
continuing
at
least
until
The records from Dr. Arnold
about plaintiff's remission status suffer internal inconsistencies.
For
example,
in
2007,
Dr.
remission status was unknown,
Arnold
indicated
that
yet in 2008 and 2009,
plaintiff's
Dr. Arnold
reported that plaintiff had been in remission for four years.
20 - OPINION AND ORDER
(Tr.
462, 458, 455.)
To be sure, evaluations conducted in 1996, 2001,
2003, 2006, and 2007 indicate concerns about plaintiff's veracity
about his reporting of drug and alcohol use and abuse.
315, 318-19, 326-27, 383-84, 419-20.)
(See Tr.
Accordingly, on remand, the
ALJ is instructed to make a determination about whether plaintiff's
drug and alcohol abuse is a contributing factor material to his
disability, specifically as it pertains to his separate claims for
CDB, DIB and SSI.
CONCLUSION
Based
REVERSED,
on
and
the
this
foregoing,
case
is
the
Commissioner's
REMANDED
for
further
decision
proceedings
consistent with this opinion.
IT IS SO ORDERED.
DATED this
day of AUGUST, 2012.
/?r~?&r~
Malcolm F. Marsh
United States District Judge
21 - OPINION AND ORDER
is
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