Opinion
Case No. ED CV 13-0572-DFM
07-22-2014
DESHAWN SMITH, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND
ORDER
Plaintiff Deshawn Smith ("Plaintiff") appeals the final decision of the Administrative Law Judge ("ALJ") denying her applications for Social Security disability benefits. This Court concludes that the ALJ properly found that Plaintiff's substance abuse was a material, contributing factor to the ALJ's determination of her disability. The Court therefore affirms the ALJ's decision and this matter is dismissed with prejudice.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed applications for Social Security Disability Insurance and Supplemental Security Income benefits on November 23, 2005, alleging disability beginning September 1, 2002. Administrative Record ("AR") 342-48. An ALJ found that Plaintiff was not disabled. AR 36-43. Plaintiff filed a complaint in this Court challenging the ALJ's determination. On June 10, 2009, this Court concluded that the ALJ failed to properly consider the opinion of Plaintiff's treating physician, Dr. Ochuko Diamreyan, and reversed and remanded with instructions for the ALJ to reconsider the severity of Plaintiff's mental impairment. AR 298-311; Smith v. Astrue, No. ED CV 08-1131-PLA, 2009 WL 1653032 (C.D. Cal. June 10, 2009).
The same ALJ held another hearing, and again Plaintiff was found not disabled. AR 275-86. Plaintiff filed another complaint in this Court challenging the ALJ's second decision. On September 8, 2011, the Court concluded that the ALJ: (1) again failed to properly consider Dr. Diamreyan's opinion; (2) failed to properly set out Plaintiff's limitations and restrictions in the residual functional capacity ("RFC") and in the hypothetical question posed to the vocational expert; and (3) improperly rejected lay witness testimony. The Court therefore reversed and remanded for the ALJ to consider Plaintiff's RFC and disability status after crediting Dr. Diamreyan's opinion, the lay witness testimony, and including all of Plaintiff's limitations. AR 644-66; Smith v. Astrue, No. ED CV 10-633-PLA, 2011 WL 3962107 (C.D. Cal. Sept. 8, 2011).
Plaintiff's case was re-assigned to a second ALJ, who, after a third hearing, also found Plaintiff was not disabled on November 13, 2012. AR 621-34. The ALJ found that Plaintiff had the following severe impairments: major depressive disorder, severe with psychosis; and substance abuse. AR 627. The ALJ also concluded that the impairments met or equaled Listings 12.04 and 12.09. AR 627. The ALJ further found that if Plaintiff "stopped substance abuse," Plaintiff's depressive disorder would continue to cause more than a minimal impact on her ability to perform basic work activities; however, her symptoms would no longer be disabling. AR 628. The ALJ similarly found that if Plaintiff stopped abusing substances, she would not have an impairment or combination of impairments that meets or medically equals any of the listed impartments. AR 629-30.
The ALJ found Plaintiff was less that fully credible, and concluded that if she stopped abusing substances, she would have the RFC to perform a full range of work at all exertional levels, but with certain non-exertional limitations. AR 630-32. Although she had no past relevant work, the ALJ found that she retained the RFC to perform work available in significant numbers in the national economy. AR 633. Finally, the ALJ concluded that because Plaintiff's substance abuse was a contributing factor material to the determination of disability, she was not disabled. AR 633-34.
II.
ISSUE PRESENTED
The parties dispute whether the ALJ erred in finding that substance abuse was a material, contributing factor, and thus that Plaintiff no longer met or equaled the listing of impairments at step three of the sequential evaluation process. See Joint Stipulation ("JS") at 5-16.
III.
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free from legal error and are supported by substantial evidence based on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Id. at 720-21.
IV.
THE ALJ PROPERLY DETERMINED THAT SUBSTANCE ABUSE
WAS A CONTRIBUTING FACTOR MATERIAL TO THE
DETERMINATION OF DISABILITY
Plaintiff contends that the ALJ erred by finding that, if Plaintiff stopped substance abuse, she would not have an impairment or combination of impairments that meets or medically equals any of the listing impairments. Specifically, Plaintiff contends that the ALJ erred in conducting its Drug Addiction and Alcoholism ("DAA") analysis because the record does not demonstrate the materiality of substance abuse. JS at 7.
Under the Social Security Act, "[a]n individual shall not be considered disabled . . . if alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner's determination that the individual is disabled." 42 U.S.C. § 423(d)(2)(C). "The key factor in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether an individual would still be found disabled if [he or she] stopped using alcohol or drugs." Sousa v. Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998) (internal quotation marks and ellipsis omitted); see 20 C.F.R. §§ 404.1535, 416.935 (explaining how the Commissioner determines whether drug addiction or alcoholism is a contributing factor); see also Social Security Ruling ("SSR") 13-2p, 2013 WL 621536 (explaining how the Commissioner evaluates cases involving drug addiction and alcoholism).
The ALJ must first conduct the sequential five-step inquiry used to evaluate disability "without separating out the impact of alcoholism or drug addiction. If the ALJ finds that the claimant is not disabled under the five-step inquiry, then the claimant is not entitled to benefits and there is no need to proceed with the analysis under 20 C.F.R. §§ 404.1535 or 416.935." Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001); see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); SSR 13-2p, 2013 WL 621536, at *5-7. If, however, "the ALJ finds that the claimant is disabled and there is medical evidence of his or her drug addiction or alcoholism, then the ALJ should proceed under §§ 404.1535 or 416.935 to determine if" drug or alcohol abuse is a contributing factor material to the disability determination. Bustamante, 262 F.3d at 955 (internal quotation marks and brackets omitted); see 20 C.F.R. §§ 404.1535, 416.935; SSR 13-2p, 2013 WL 621536, at *5-7.
A two-step analysis is required to determine whether drug or alcohol abuse is a material contributing factor. First, the ALJ must determine which of the claimant's disabling limitations would remain if the claimant stopped using drugs or alcohol. Second, the ALJ must determine whether the remaining limitations would still be disabling. If so, then the claimant's drug addiction or alcoholism is not a material factor to the determination of disability. 20 C.F.R. §§ 404.1535(b)(2), 416.935(b)(2); Parra, 481 F.3d at 747. The claimant bears the burden of proving that drug addiction and alcoholism are not contributing factors material to his or her disability, in that he or she would remain disabled if the drug and alcohol substance abuse ceased. Parra, 481 F.3d at 748.
Here, the ALJ found that Plaintiff's depressive disorder would continue to cause more than a minimal impact on her ability to perform basic work activities even if she ceased substance abuse. AR 628. However, the ALJ found this remaining limitation would no longer meet the criteria of Listings 12.04 or 12.09. AR 629. The ALJ also concluded that the remaining limitation would not be disabling because Plaintiff would retain an RFC for a full range of work with certain non-exertional limitations. AR 630. Specifically, the ALJ found that Plaintiff was not disabled because substance use "is a contributing factor material to the determination of disability . . ." AR 634.
Plaintiff contends that the ALJ's decision is not properly supported because he relied on Dr. David Glassmire's testimony at the hearing, which was equivocal regarding the effect of Plaintiff's alcohol abuse on the determination of disability. JS at 10-12. Dr. Glassmire testified "there's really not a lot of information about how significant the alcohol use was during any of the time period under question" and that "there is alcohol abuse indicated, but there's no -- really no information I saw in the frequency or severity during the relevant time period." AR 1133.
However, as the Commissioner points out, while Dr. Glassmire was equivocal about the overall support for the frequency and severity of alcohol abuse, Dr Glassmire referenced Dr. Diamreyan's diagnosis of Plaintiff with alcohol abuse in May 2005 and again in January 2009. AR 1132-33 (citing AR 269, 469). These diagnoses are significant because this Court specifically required the ALJ to credit Dr. Diamreyan's opinion on remand. AR 657, 666; Smith, 2011 WL 3962107, at *8, *13. Further, a February 8, 2006 disability determination indicated a history of alcohol abuse, although it noted that Plaintiff reported in May 2005 to have been sober for five months. AR 142. At the hearing in 2012, Plaintiff admitted she still drinks "probably some wine," although she said she did this only occasionally. AR 1142.
More importantly, even if this were insufficient support for an alcohol abuse finding, the ALJ's finding was not limited to alcohol abuse. The ALJ found that "substance abuse," not just alcohol abuse, was a contributing factor material to the determination of disability. AR 628-34. There is ample evidence supporting this determination; the record is replete with references to drug abuse and in particular a history of crack cocaine abuse. See, e.g., AR 142, 222, 949, 952, 958, 977, 1056, 1085.
For example, in 2003, during a psychodiagnostic evaluation, Plaintiff reported a history of substance abuse. AR 949. She said that her substance use began at age 23, and included experimentation with "Dust, Cannabis, Sherums, but she indicated her drug of choice was smoking Cocaine." AR 948-49, 952. The evaluating psychologist concluded that Plaintiff had impressions of neurocognitive deficits that were possibly due to her history of cocaine use. AR 954. Plaintiff was diagnosed with cocaine dependence, but the psychologist indicated it was in remission based on Plaintiff's statement that she "got sober" in 1999. AR 952, 954.
During a May 2006 psychological evaluation, Plaintiff admitted past use of crack cocaine, "pot," and speed. AR 222. Plaintiff also indicated she had been arrested five times for "being under the influence, possession and spousal abuse." AR 222, see also AR 1085, 1091. She denied at the time that she had used heroin, LSD, or PCP. AR 222.
During a January 2009 psychological evaluation, Plaintiff said she "used to use crack cocaine." AR 447. Regarding this admission, the evaluating psychologist, Dr. Linda Smith, noted the following:
On her questionnaire she says she stopped a few years ago. In person when I ask her when is the last time she did crack she pauses, she appears fairly clearly not to remember what she wrote on the questionnaire and she seems actually trying to think of what she "should" say. She finally says it was eight years ago. This is obviously inconsistent. She said her drug of choice was crack but when I ask her about marijuana she said she "tried" it. For PCPAR 447.
she also "tried" it and for amphetamines she also "tried" it. She only denies heroin.
Also in January 2009, Plaintiff admitted to a medical consultant that four of her five children were taken from her due to her substance abuse and that she was arrested six times for being under the influence. AR 1056-57. She also admitted that she does not remember when she stopped using crack cocaine. AR 1057.
In August 2010, Plaintiff again discussed her history of "daily" cocaine use. AR 1085. She was diagnosed with cocaine abuse, but again the evaluating doctor indicated it was in remission due to Plaintiff's statement that she stopped - but this time Plaintiff said she last used in 2002. AR 1085-86. Also in August 2010, she again discussed her cocaine use and said there were "a few times" she unsuccessfully tried to cut down or stop using. AR 1091. In May 2011, she said she last used cocaine four years before. AR 1082.
Finally, during the hearing and despite her previous statements to the contrary, Plaintiff denied using methamphetamine and marijuana. AR 1142. She did admit that her "drug of trouble was crack cocaine," but stated that the last time she thought she used it was 2002. AR 1142.
As mentioned, the ALJ found Plaintiff less than fully credible. AR 630. The ALJ specifically mentioned that "[t]reatment notes from [May 2011] stated the claimant stopped using cocaine four years prior, which would be roughly 2007," within the relevant period. AR 631. Notably, Plaintiff makes no challenge to the credibility determination here.
Medical professionals made similar findings about Plaintiff's credibility. See, e.g., AR 445-47, 1056.
When considering the record as a whole, and given the extensive evidence in the record regarding Plaintiff's history of drug and alcohol abuse, the Court finds that there was substantial evidence to support the ALJ's finding that Plaintiff did not meet her burden of proving that substance abuse is not a contributing factor material to her disability, in that she would remain disabled if the substance abuse ceased. Parra, 481 F.3d at 748. Plaintiff fails to acknowledge, or even discuss, any of her own admissions or the evidence detailed above supporting her substance abuse outside of the alcohol abuse context. The ALJ reviewed all of the medical evidence in detail and correctly found that substance abuse was a contributing factor material to the determination of disability, and therefore Plaintiff is not entitled to relief.
V.
CONCLUSION
For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice.
__________
DOUGLAS F. McCORMICK
United States Magistrate Judge