Leingang v. Colvin, No. 1:2014cv03116 - Document 25 (E.D. Wash. 2015)
Court Description: DECISION AND ORDER granting ECF No. 15 Plaintiff's Motion for Summary Judgment and denying ECF No. 19 Defendant's Motion for Summary Judgment. CLOSE FILE. Signed by Magistrate Judge Victor E. Bianchini. (PH, Case Administrator)
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Leingang v. Colvin Doc. 25 1 2 3 4 5 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 7 8 9 Case No. 14-CV-03116-VEB LESTER LEINGANG, 10 Plaintiff, DECISION AND ORDER 11 vs. 12 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 13 Defendant. 14 15 I. INTRODUCTION 16 In November of 2010, Plaintiff Lester Leingang applied for supplemental 17 security income (“SSI”) benefits. The Commissioner of Social Security denied the 18 application. 19 20 1 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB Dockets.Justia.com 1 Plaintiff, represented by D. James Tree, Esq., commenced this action seeking 2 judicial review of the Commissioner’s denial of benefits pursuant to 42 U.S.C. §§ 3 405 (g) and 1383 (c)(3). The parties consented to the jurisdiction of a United States 4 Magistrate Judge. (Docket No. 6). 5 On March 30, 2015, the Honorable Rosanna Malouf Peterson, Chief United 6 States District Judge, referred this case to the undersigned pursuant to 28 U.S.C. § 7 636(b)(1)(A) and (B). (Docket No. 21). 8 9 II. BACKGROUND 10 The procedural history may be summarized as follows: 11 Plaintiff applied for SSI benefits on November 4, 2010. (T at 174-80).1 The 12 application was denied initially and on reconsideration. Plaintiff requested a hearing 13 before an Administrative Law Judge (“ALJ”). On August 20, 2012, a hearing was 14 held before ALJ Ilene Sloan. (T at 49). Plaintiff appeared with his attorney and 15 testified. (T at 58-76). The ALJ also received testimony from Paul Prachyl, a 16 vocational expert (T at 78-87). On August 30, 2012, ALJ Sloan issued a written 17 decision denying the application for benefits and finding that Plaintiff was not 18 disabled within the meaning of the Social Security Act. (T at 23-48). The ALJ’s 19 1 20 Citations to (“T”) refer to the administrative record at Docket No. 11. 2 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 decision became the Commissioner’s final decision on June 20, 2014, when the 2 Appeals Council denied Plaintiff’s request for review. (T at 1-6). 3 On August 19, 2014, Plaintiff, acting by and through his counsel, timely 4 commenced this action by filing a Complaint in the United States District Court for 5 the Eastern District of Washington. (Docket No. 4). The Commissioner interposed 6 an Answer on November 3, 2014. (Docket No. 10). 7 Plaintiff filed a motion for summary judgment on February 2, 2015. (Docket 8 No. 15). The Commissioner moved for summary judgment on March 10, 2015. 9 (Docket No. 19). Plaintiff filed a Reply on March 30, 2015. (Docket No. 23). 10 11 For the reasons set forth below, the Commissioner’s motion is denied, Plaintiff’s motion is granted, and this case is remanded for further proceedings. 12 13 14 15 16 17 18 19 20 3 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 2 III. DISCUSSION A. Sequential Evaluation Process 3 The Social Security Act (“the Act”) defines disability as the “inability to 4 engage in any substantial gainful activity by reason of any medically determinable 5 physical or mental impairment which can be expected to result in death or which has 6 lasted or can be expected to last for a continuous period of not less than twelve 7 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 8 plaintiff shall be determined to be under a disability only if any impairments are of 9 such severity that a plaintiff is not only unable to do previous work but cannot, 10 considering plaintiff’s age, education and work experiences, engage in any other 11 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 12 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 13 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 14 The Commissioner has established a five-step sequential evaluation process 15 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 16 one determines if the person is engaged in substantial gainful activities. If so, 17 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 18 decision maker proceeds to step two, which determines whether plaintiff has a 19 medially severe impairment or combination of impairments. 20 C.F.R. §§ 20 4 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 2 If plaintiff does not have a severe impairment or combination of impairments, 3 the disability claim is denied. If the impairment is severe, the evaluation proceeds to 4 the third step, which compares plaintiff’s impairment with a number of listed 5 impairments acknowledged by the Commissioner to be so severe as to preclude 6 substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 7 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed 8 impairments, plaintiff is conclusively presumed to be disabled. If the impairment is 9 not one conclusively presumed to be disabling, the evaluation proceeds to the fourth 10 step, which determines whether the impairment prevents plaintiff from performing 11 work which was performed in the past. If a plaintiff is able to perform previous work 12 that plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 13 416.920(a)(4)(iv). At this step, plaintiff’s residual functional capacity (RFC) is 14 considered. If plaintiff cannot perform past relevant work, the fifth and final step in 15 the process determines whether plaintiff is able to perform other work in the national 16 economy in view of plaintiff’s residual functional capacity, age, education and past 17 work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. 18 Yuckert, 482 U.S. 137 (1987). 19 20 5 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 The initial burden of proof rests upon plaintiff to establish a prima facie case 2 of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 3 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is 4 met once plaintiff establishes that a mental or physical impairment prevents the 5 performance of previous work. The burden then shifts, at step five, to the 6 Commissioner to show that (1) plaintiff can perform other substantial gainful 7 activity and (2) a “significant number of jobs exist in the national economy” that 8 plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 9 B. Standard of Review 10 Congress has provided a limited scope of judicial review of a Commissioner’s 11 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 12 made through an ALJ, when the determination is not based on legal error and is 13 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 14 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “The [Commissioner’s] 15 determination that a plaintiff is not disabled will be upheld if the findings of fact are 16 supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 17 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, 18 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a 19 preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). 20 6 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 Substantial evidence “means such evidence as a reasonable mind might accept as 2 adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 3 (1971)(citations omitted). “[S]uch inferences and conclusions as the [Commissioner] 4 may reasonably draw from the evidence” will also be upheld. Mark v. Celebreeze, 5 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a 6 whole, not just the evidence supporting the decision of the Commissioner. Weetman 7 v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 8 526 (9th Cir. 1980)). 9 It is the role of the Commissioner, not this Court, to resolve conflicts in 10 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 11 interpretation, the Court may not substitute its judgment for that of the 12 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 13 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 14 set aside if the proper legal standards were not applied in weighing the evidence and 15 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 16 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 17 administrative findings, or if there is conflicting evidence that will support a finding 18 of either disability or nondisability, the finding of the Commissioner is conclusive. 19 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 20 7 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 C. Commissioner’s Decision 2 The ALJ found that Plaintiff had not engaged in substantial gainful activity 3 since November 4, 2010 (the application date). The ALJ determined that Plaintiff 4 had the following severe impairments: chronic obstructive pulmonary disease 5 (COPD), human immunodeficiency virus (HIV), hepatitis C infection, bipolar 6 disorder versus depressive disorder (NOS), anxiety disorder NOS, personality 7 disorder NOS, and polysubstance dependence and/or abuse (intermittent remission). 8 (T at 28). 9 However, the ALJ concluded that Plaintiff did not have an impairment or 10 combination of impairments that met or medically equaled one of the impairments 11 set forth in the Listings. (T at 29). 12 The ALJ found Plaintiff had the residual functional capacity (“RFC”) to 13 perform light work, as defined in 20 CFR §416.967 (b), with the following 14 limitations: he must avoid concentrated exposure to industrial fumes, odors, gases, 15 and poor ventilation; he can understand, remember, and carry out simple and routine 16 work; he has an average ability to perform sustained work activities; he can have 17 occasional, superficial contact with the general public. (T at 31). 18 The ALJ determined that Plaintiff was unable to perform his past relevant 19 work as an automotive body repairer/helper. (T at 41). Considering Plaintiff’s age 20 8 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 (46 on the application date), education (high school), work experience, and RFC, the 2 ALJ determined that there were jobs that exist in significant numbers in the national 3 economy that Plaintiff can perform. (T at 42). 4 As such, the ALJ concluded that Plaintiff had not been disabled under the 5 Social Security Act from November 4, 2010 (the application date) through October 6 30, 2012 (the date of the ALJ’s decision) and was therefore not entitled to benefits. 7 (Tr. 42-43). As noted above, the ALJ’s decision became the Commissioner’s final 8 decision when the Appeals Council denied Plaintiff’s request for review. (Tr. 1-6). 9 D. Plaintiff’s Arguments 10 Plaintiff contends that the Commissioner’s decision should be reversed. He 11 offers three principal arguments in support of his position. First, he argues that the 12 ALJ did not properly assess the medical opinion evidence. Second, he contends that 13 the ALJ did not conduct a proper substance abuse analysis. Third, Plaintiff asserts 14 that the ALJ improperly restricted the vocational expert’s testimony. This Court will 15 address each argument in turn. 16 1. 17 In disability proceedings, a treating physician’s opinion carries more weight 18 than an examining physician’s opinion, and an examining physician’s opinion is 19 given more weight than that of a non-examining physician. Benecke v. Barnhart, 20 9 Medical Opinion Evidence DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 2 1995). If the treating or examining physician’s opinions are not contradicted, they 3 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 4 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 5 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 6 1035, 1043 (9th Cir. 1995). Historically, the courts have recognized conflicting 7 medical evidence, and/or the absence of regular medical treatment during the alleged 8 period of disability, and/or the lack of medical support for doctors’ reports based 9 substantially on a claimant’s subjective complaints of pain, as specific, legitimate 10 reasons for disregarding a treating or examining physician’s opinion. Flaten v. 11 Secretary of Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). 12 An ALJ satisfies the “substantial evidence” requirement by “setting out a 13 detailed and thorough summary of the facts and conflicting clinical evidence, stating 14 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 15 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 16 However, “[t]he ALJ must do more than state conclusions. He must set forth his own 17 interpretations and explain why they, rather than the doctors’, are correct.” Id. 18 19 20 10 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 a. Dr. Barg 2 In July of 2012, Dr. Neil Barg, Plaintiff’s treating physician, completed a 3 medical report. Dr. Barg noted that Plaintiff suffered from depression, insomnia, 4 and body aches. He opined that “at this point – work does not seem as though it’s 5 something [Plaintiff] can manage.” (T at 520-21). 6 The ALJ gave little weight to Dr. Barg’s opinion, stating that the physician 7 had not examined Plaintiff since April 2003 and that the doctor’s opinion was 8 unsupported by objective evidence. (T at 38). The ALJ also referenced an August 9 2004 report, wherein Dr. Barg opined that Plaintiff could perform medium work. (T 10 at 38, 325). The ALJ noted that Dr. Barg had not explained why his opinion with 11 regard to Plaintiff’s limitations had changed since 2004, and discounted the more 12 recent opinion on that basis. (T at 38). 13 The ALJ’s assessment of Dr. Barg’s opinion is problematic. Although it is 14 unclear whether Dr. Barg actually “examined” Plaintiff after April 2003, there is 15 ample evidence that Dr. Barg actively managed Plaintiff’s care between 2003 and 16 2012. (T at 306-08, 353, 359-63, 370-72, 375-81, 450-60, 461-63, 464-72, 476-79, 17 517, 520-21). A patient health summary note from April of 2011 identified Dr. Barg 18 as Plaintiff’s primary care physician. (T at 370). Dr. Barg himself reported the first 19 and last dates of treatment as “7/29/04 – 6/25/12.” (T at 520). The ALJ simply 20 11 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 stated that Dr. Barg had “no documented examination of [Plaintiff],” (T at 38) 2 without making it clear that she recognized and considered the evidence 3 demonstrating that Dr. Barg was actively involved in managing and monitoring 4 Plaintiff’s care for an extended time period. 5 Moreover, the ALJ believed that Dr. Barg’s opinion was based “heavily” on 6 Plaintiff’s self-reports (T at 38), a conclusion that is difficult to reconcile with the 7 extensive history and treating relationship, which (as noted above) the ALJ did not 8 discuss. 9 This undermines confidence in the ALJ’s assessment. Although Dr. Barg’s 10 July 2012 opinion was, indeed, not particularly detailed, given the long-term treating 11 relationship and the consistency between this opinion and evidence from other 12 medical sources (discussed further below), the ALJ should have re-contacted Dr. 13 Barg for a further explanation. 14 There is no question that “the ALJ has a duty to assist in developing the 15 record.” Armstrong v. Commissioner of Soc. Sec. Admin., 160 F.3d 587, 589 (9th 16 Cir. 1998); 20 C.F.R. §§ 404.1512(d)-(f); see also Sims v. Apfel, 530 U.S. 103, 110- 17 11, 147 L. Ed. 2d 80, 120 S. Ct. 2080 (2000) (“Social Security proceedings are 18 inquisitorial rather than adversarial. It is the ALJ’s duty to investigate the facts and 19 develop the arguments both for and against granting benefits . . . .”). 20 12 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 This duty includes an obligation to re-contact a treating physician when the 2 basis for his or her opinion in unclear. See SSR 96-5p (“[I]f the evidence does not 3 support a treating source’s opinion . . . and the [ALJ] cannot ascertain the basis of 4 the opinion from the case record, the [ALJ] must make every reasonable effort to re- 5 contact the source for clarification of the reasons for the opinion.”). While a treating 6 physician’s opinion may be rejected if it is inadequately supported, the physician 7 should be re-contacted where, as here, the evidence of disability is ambiguous. See 8 Estrada v. Astrue, No EDCV 07-01226, 2009 U.S. Dist. LEXIS 15824, at *11 (C.D. 9 Cal. Feb. 25, 2009). 10 In addition, even without the need for further development of the record, a 11 remand would be needed to allow the ALJ to clarify her understanding of the 12 treating relationship and, if necessary, modify her assessment based upon a correct 13 understanding of Dr. Barg’s connection with Plaintiff’s medical care. 14 b. Dr. Barnard 15 In June of 2012, Dr. Philip Barnard, an examining psychologist, completed a 16 psychological/psychiatric evaluation. He diagnosed bipolar disorder, NOS; alcohol 17 abuse (in partial remission); attention deficit hyperactivity disorder/combined type; 18 and personality disorder, not otherwise specified. (T at 335). He assigned a Global 19 20 13 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 Assessment of Functioning (“GAF”) score2 of 60 (T at 336), which is indicative of 2 moderate symptoms or difficulty in social, occupational or educational functioning. 3 Amy v. Astrue, No. CV-11-319, 2013 U.S. Dist. LEXIS 2297, at *19 n.2 (E.D.Wa 4 Jan. 7, 2013). Dr. Barnard opined that with Plaintiff’s “easy fatigability, it is not 5 probable that he could be gainfully employed in any capacity.” (T at 336). 6 The ALJ afforded little weight to Dr. Barnard’s opinion on the grounds that he 7 only examined Plaintiff once and did not review any medical records. (T at 40). The 8 ALJ also noted that Plaintiff did not acknowledge recent substance abuse to Dr. 9 Barnard. (T at 41). In addition, the ALJ found Dr. Barnard’s GAF score of 60, 10 which indicated moderate symptoms, inconsistent with his assessment of disabling 11 impairments. (T at 41). Thus, the ALJ concluded that Dr. Barnard’s opinion was 12 based primarily on Plaintiff’s self-reports, which the ALJ found incredible. (T at 41). 13 However, the ALJ’s assessment was flawed. Dr. Barnard obtained a detailed 14 history, including the fact that Plaintiff was homeless at the time of the evaluation. 15 (T at 336). He noted that Plaintiff had previously been awarded Social Security 16 disability benefits, but lost those benefits after being incarcerated. (T at 336). Dr. 17 Barnard conducted a mental status examination, wherein Plaintiff was observed to 18 2 19 “A GAF score is a rough estimate of an individual's psychological, social, and occupational functioning used to reflect the individual's need for treatment." Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). 20 14 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 be cooperative and compliant, but with depressed mood and rapid, rambling speech. 2 (T at 337). Moreover, the ALJ’s decision to discount Dr. Barnard’s opinion did not 3 account for the consistency of his opinion with Dr. Barg’s assessment and the other 4 opinions discussed below. 5 c. Moen/Anderson 6 In January of 2011, Dick Moen, an examining therapist, completed a 7 psychological/psychiatric evaluation, in which he diagnosed bipolar 1, mixed and 8 generalized anxiety disorder, ADHD, NOS. (T at 340). He assigned a GAF score of 9 50 (T at 341), which is indicative of serious impairment in social, occupational or 10 school functioning. Onorato v. Astrue, No. CV-11-0197, 2012 U.S. Dist. LEXIS 11 174777, at *11 n.3 (E.D.Wa. Dec. 7, 2012). Mr. Moen assessed marked limitation 12 with regard to Plaintiff’s ability to perform routine tasks without undue supervision 13 and maintain appropriate behavior. (T at 341). 14 In August of 2012, Russell Anderson, a licensed clinical social worker, 15 completed an initial mental health assessment of Plaintiff. He assigned a GAF score 16 of 41 (T at 524), which is indicative of serious impairment in social, occupational or 17 school functioning. Mr. Anderson opined that Plaintiff was “at risk of continued 18 depression and further decompensation of functioning . . . .” (T at 524). 19 Anderson noted Plaintiff had “[h]igh risk diagnoses,” along with a “history of 20 15 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB Mr. 1 suicidal thinking, history of suicide attempts, history of substance abuse, and chronic 2 medical problems associated with AIDS, and a little family support.” (T at 523). 3 In evaluating a claim, the ALJ must consider evidence from all of the 4 claimant’s medical sources. 20 C.F.R. §§ 404.1512, 416.912. Medical sources are 5 divided into two categories: “acceptable” and “not acceptable.” 20 C.F.R. § 6 404.1502. 7 psychologists. 20 C.F.R. § 404.1502. Medical sources classified as “not acceptable” 8 (also known as “other sources”) include nurse practitioners, therapists, licensed 9 clinical social workers, and chiropractors. SSR 06-03p. Acceptable medical sources include licensed physicians and The opinion of an 10 acceptable medical source is given more weight than an “other source” opinion. 20 11 C.F.R. §§ 404.1527, 416.927. For example, evidence from “other sources” is not 12 sufficient to establish a medically determinable impairment. SSR 06-03p. However, 13 “other source” opinions must be evaluated on the basis of their qualifications, 14 whether their opinions are consistent with the record evidence, the evidence 15 provided in support of their opinions and whether the source is “has a specialty or 16 area of expertise related to the individual’s impairment.” See SSR 06-03p, 20 CFR 17 §§404.1513 (d), 416.913 (d). 18 discounting an “other source” opinion. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 19 1993). 20 The ALJ must give “germane reasons” before 16 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 The ALJ assigned minimal weight to Mr. Moen’s assessment, finding it based 2 primarily on Plaintiff’s self-reports. (T at 39). However, Mr. Moen also referenced 3 his clinical observations, which included Plaintiff having difficulty staying on task. 4 (T at 424). Further, Mr. Moen did not accept Plaintiff’s self-report in at least one 5 respect. Although Plaintiff said he could learn new tasks, Mr. Moen did not accept 6 this report, assessing a moderate limitation with regard to Plaintiff’s ability to learn 7 new tasks due to distractibility related to bipolar symptoms and AD/HD. (T at 425). 8 In addition, the ALJ did not address the consistency between the opinion provided 9 by Mr. Moen and the assessments of Dr. Barg and Dr. Barnard. The ALJ did not 10 11 provide legally sufficient reasons for discounting Mr. Moen’s opinion. The ALJ did not address Mr. Anderson’s opinion at all, which is a further 12 error providing a reason for remand. 13 d. Dr. Suiter & Dr. Reznicek 14 Two doctors, Dr. Michael Reznicek and Dr. Elizabeth Suiter, treated Plaintiff 15 between December of 2009 and October of 2010, when he was incarcerated at the 16 Coyote Ridge Corrections Center (immediately prior to the time period relevant to 17 this case, which began on November 4, 2010). Dr. Reznicek, a psychiatrist, noted 18 that Plaintiff had “some positive employment history,” but found that he “lacks 19 volition” and was “socially inept, anti-social,” and “unlikely to stay sober for a 20 17 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 traditional work setting . . . .” (T at 406). The record also included several 2 assessments and treatment notes from Dr. Suiter, a physician. In May of 2010, Dr. 3 Suiter noted that Plaintiff was improving with Lithium treatments, but still had 4 “some depressive symptoms.” (T at 390). In June of 2010, Dr. Suiter reported that 5 she was worried about Plaintiff’s behavior, noting episodes of hypermania. (T at 6 387). 7 The ALJ did not expressly reference Dr. Suiter, but did cite her treatment 8 notes on several occasions. (T at 29, 30, 33, 35). The referenced Dr. Reznicek’s 9 treatment notes, in which the doctor opined that Plaintiff’s history was not consistent 10 with bipolar disorder and that he had “normal affect, good humor, and an engaging 11 demeanor.” (T at 34, 405, 408, 411-12). The ALJ relied on these reports to discount 12 Plaintiff’s claims of disabling impairments. (T at 34). However, the ALJ gave 13 minimal weight to Dr. Reznicek’s conclusion that Plaintiff’s substance abuse 14 prevented a return to gainful employment. (T at 38). The ALJ’s consideration of 15 Plaintiff’s substance abuse was flawed for the reasons outlined below. Thus, the 16 decision to discount Dr. Reznicek’s conclusion was flawed and will need to be 17 revisited as part of a proper substance abuse analysis on remand. 18 19 20 18 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 2. 2 When a Social Security disability claim involves substance abuse, the ALJ 3 must first conduct the general five-step sequential evaluation without determining 4 the impact of substance abuse on the claimant. If the ALJ finds that the claimant is 5 not disabled, then the ALJ proceeds no further. If, however, the ALJ finds that the 6 claimant is disabled, then the ALJ conducts the sequential evaluation and second 7 time and considers whether the claimant would still be disabled absent the substance 8 abuse. See Bustamente v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001), 20 CFR § 9 404.1535. The claimant bears the burden at steps 1-4 of the second sequential 10 analysis of showing substance abuse is not a “contributing factor material to his 11 disability.” Hardwick v. Astrue, 782 F. Supp. 2d 1170, 1177 (E.D.Wa. 2011)(citing 12 Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007)). Substance Abuse Analysis 13 Here, the ALJ concluded that Plaintiff’s substance abuse (which included 14 alcohol and illegal drugs) “likely caused some functional difficulties.” (T at 34). 15 However, the ALJ found that substance abuse did not “materially affect [Plaintiff’s] 16 ability to perform gainful activity.” (T at 34). The ALJ determined that Plaintiff’s 17 substance abuse damaged his credibility and likely exacerbated the symptoms 18 complained of, i.e., fatigue, irregular sleep, respiratory difficulties, anxiety, and 19 depression. (T at 35). However, the record indicated that Plaintiff’s symptoms 20 19 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 persisted even when he was incarcerated and known to be clean and sober. (T at 385, 2 389, 390, 398, 405, 406, 411, 412). 3 Moreover, the medical opinions of record uniformly concluded that Plaintiff’s 4 combination of medical problems and substance abuse were, in fact, disabling. Dr. 5 Barg, who had a lengthy treatment history with Plaintiff, opined that “at this point – 6 work does not seem as though it’s something [Plaintiff] can manage.” (T at 520-21). 7 Dr. Lesley McGalliard, a treating physician, reported that Plaintiff had “[s]ignificant 8 mental health issues with illicit drug abuse[,] notably methamphetamine and 9 cocaine.” (T at 435). She opined that Plaintiff was “certainly … unfit to work 10 giv[en] significant mental health issues as [well] as some ongoing issues with drug 11 abuse.” (T at 435). Dr. Reznicek, who treated Plaintiff during his incarceration, 12 found that he “lacks volition” and was “socially inept, anti-social,” and “unlikely to 13 stay sober for a traditional work setting . . . .” (T at 406). Dr. Barnard opined that 14 with Plaintiff’s “easy fatigability, it is not probable that he could be gainfully 15 employed in any capacity.” (T at 336). 16 The ALJ concluded that Plaintiff retained an RFC “consistent with 17 competitive employment despite his substance abuse.” (T at 38). 18 medical opinions support this conclusion. Moreover, the ALJ rejected the various None of the 19 20 20 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 medical opinions piecemeal, without considering the fact that their consistency with 2 each other should have bolstered the reliability of the whole. 3 Further, the ALJ’s RFC determination, which supposedly included the impact 4 of Plaintiff’s substance abuse (T at 34), contained only one serious mental health 5 limitation (occasional, superficial contact with the general public). (T at 31). In 6 other words, according to the ALJ, Plaintiff could perform sustained work activities 7 in an ordinary work setting on a regular and continuing basis within customary 8 tolerances of employers’ rules regarding sick leave and absence (T at 31), even 9 while he was abusing alcohol, cocaine, methamphetamines, and marijuana. (T at 34- 10 35). This conclusion is contrary to the medical evidence, including the opinions of 11 several treating providers, as outlined above. The ALJ did not properly perform the 12 substance abuse analysis and a remand is required for this reason. 13 3. 14 At step five of the sequential evaluation, the burden is on the Commissioner to 15 show that (1) the claimant can perform other substantial gainful activity and (2) a 16 “significant number of jobs exist in the national economy” which the claimant can 17 perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). If a claimant cannot 18 return to his previous job, the Commissioner must identify specific jobs existing in 19 substantial numbers in the national economy that the claimant can perform. See 20 21 Step Five Analysis DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir.1995). The Commissioner may 2 carry this burden by “eliciting the testimony of a vocational expert in response to a 3 hypothetical that sets out all the limitations and restrictions of the claimant.” 4 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995). The ALJ's depiction of the 5 claimant's disability must be accurate, detailed, and supported by the medical record. 6 Gamer v. Secretary of Health and Human Servs., 815 F.2d 1275, 1279 (9th 7 Cir.1987). “If the assumptions in the hypothetical are not supported by the record, 8 the opinion of the vocational expert that claimant has a residual working capacity 9 has no evidentiary value.” Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). 10 Here, the ALJ received testimony from Paul Prachyl, a vocational expert (the 11 “VE”), and relied on the VE’s opinion to form his step five findings. (T at 42). 12 Plaintiff contends that the ALJ’s step five analysis was flawed because his counsel 13 was not permitted to effectively cross-examine the VE. The ALJ did disallow a 14 proposed question by Plaintiff’s counsel, finding that the question was 15 inappropriately phrased in medical, rather than vocational, terms. (T at 86). This 16 Court finds no reversible error with regard to this aspect of the ALJ’s decision. The 17 ALJ afforded Plaintiff’s counsel the opportunity to rephrase the question, but 18 counsel declined. (T at 87). The ALJ then asked whether counsel had anything 19 further to offer and counsel advised that he did not. (T at 87). The ALJ acted within 20 22 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 his discretion in overseeing the conduct of the hearing and imposing reasonable 2 limitations on cross-examination. See Copeland v. Bowen, 861 F.2d 536, 539 (9th 3 Cir. 1988). Moreover, Plaintiff has not shown any unfair prejudice arising from this 4 issue. His counsel was afforded an opportunity to continue cross-examination and 5 rephrase the question. 6 However, the ALJ’s step five analysis is based on upon his RFC 7 determination. That determination is not supported by substantial evidence for the 8 reasons outlined above. In particular, the ALJ’s assessment of the opinion evidence 9 and substance abuse issue were flawed. Thus, the step five analysis will also need to 10 be revisited on remand. 11 C. Remand 12 In a case where the ALJ's determination is not supported by substantial 13 evidence or is tainted by legal error, the court may remand for additional 14 proceedings or an immediate award of benefits. Remand for additional proceedings 15 is proper where (1) outstanding issues must be resolved, and (2) it is not clear from 16 the record before the court that a claimant is disabled. See Benecke v. Barnhart, 379 17 F.3d 587, 593 (9th Cir. 2004). 18 In contrast, an award of benefits may be directed where the record has been 19 fully developed and where further administrative proceedings would serve no useful 20 23 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 purpose. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Courts have 2 remanded for an award of benefits where (1) the ALJ has failed to provide legally 3 sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that 4 must be resolved before a determination of disability can be made, and (3) it is clear 5 from the record that the ALJ would be required to find the claimant disabled were 6 such evidence credited. Id. (citing Rodriguez v. Bowen, 876 F.2d 759, 763 (9th 7 Cir.1989); Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989); Varney v. Sec'y of 8 Health & Human Servs., 859 F.2d 1396, 1401 (9th Cir.1988)). 9 Here, this Court finds that a remand for further proceedings is the appropriate 10 remedy. There are serious questions about Plaintiff’s credibility. (T at 33). Two 11 non-examining State Agency review consultants assessed limitations consistent with 12 the ALJ’s RFC determination. (T at 30). It is possible that, upon a proper substance 13 abuse analysis, Plaintiff will be found to be disabled when all of his impairments are 14 considered without reference to his substance abuse, but that substance abuse is 15 material to the disability determination and benefits must be denied on that basis. 16 Accordingly, while the ALJ’s decision cannot be sustained (because the opinion 17 evidence was inadequately considered and the substance abuse analysis was not 18 properly performed), this Court cannot say that it is clear from the record that 19 20 24 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB 1 Plaintiff is entitled to benefits. A remand for further proceedings is therefore the 2 appropriate remedy. 3 4 5 IV. ORDERS IT IS THEREFORE ORDERED that: 6 Plaintiff’s motion for summary judgment, Docket No. 15, is GRANTED. 7 The Commissioner’s motion for summary judgment, Docket No. 19, is 8 9 10 11 12 DENIED. This case is remanded for further proceedings, The District Court Executive is directed to file this Order, provide copies to counsel, enter judgment in favor of Plaintiff, and CLOSE this case. DATED this 3rd day of August, 2015. 13 14 15 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 25 DECISION AND ORDER – LEINGANG v COLVIN 14-CV-03116-VEB
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