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DONNA E. SHALALA Ph.D. Secretary of Health and Human Services Defendant.
NO. C 93-4527 TEH
February 21, 1995 Decided
The Hon. Justice Thelton E. Henderson

Plaintiff brings this action pursuant to 42 U.S.C. SEC.(s) 405(g) and 1383(c)(3)seeking review of a final decision by the Secretary of Health and Human Services (Secretary) denying him supplemental security income (SSI) and disability insurance benefits. The case is before this Court on cross-motions for summary judgment. After a careful consideration of the record and for the reasons stated below Court DENIES the plaintiff's motion for summary judgment and GRANTS the Secretary's cross motion for summary judgment.


Plaintiff James Robinson was born on May 3, 1943 and is now fifty-one years old. He completed high school a semester of college and attended an operating engineer apprenticeship training from 1974 to 1981. He worked as a journeyman operating heavy equipment from 1981 to 1984 when he injured his right knee. His knee injury prevented him from returning to his work as a heavy equipment operator. Mr. Robinson held several different part time jobs between 1984 and 1989. (Tr. 147) On January 18 1989 while working on a construction site he injured his right hand. Mr. Robinson alleges his disability began on January 18 1989.

Mr. Robinson also has a history of substance abuse. He started using street drugs in 1980 or 1981. (Tr. 59 90) He testified that he now does "as much [crack] as he can get his hands on." (Tr. 59) He has been drinking "more than just socially" since 1982 and now drinks four quarts of beer and maybe a fifth of wine five or six times a week. (Tr. 54) In 1984 Mr. Robinson began taking prescription codeine for the pain from his knee injury. He now takes as many as four to five codeine pills per day when he can afford it. (Tr. 47 78) He testified that he spends all of his General Assistance money on drugs and alcohol.

Plaintiff filed an application for disability insurance benefits on November 9, 1990 and for SSI on October 18, 1991 alleging that he became unable to work on January 18, 1989 due to the injuries to his right hand and right knee. Plaintiff also alleged disability due to psychiatric impairment and substance abuse. The applications were both denied on Nov. 9, 1991. After reconsideration plaintiff's claims were again denied.

Plaintiff then filed a request for a de novo hearing before an Administrative Law Court (ALJ). On April 15, 1992 a hearing was held; plaintiff and his Counsel were present at this hearing and plaintiff testified on his own behalf. At a supplemental hearing on November 18, 1992 Dr. Frederic Morgenstern a Medical Expert and Dr. Leonard Newman a Vocational Expert also testified. Relying on the hearing testimony and two medical evaluations of Plaintiff the ALJ denied plaintiff's claims on March 25, 1993. The ALJ found that although plaintiff's knee and hand injuries were severe plaintiff had the residual functional capacity to perform a significant number of medium and light jobs in the national economy and that he was therefore not disabled. The ALJ also found that neither plaintiff's alleged psychiatric impairment nor his substance abuse further eroded the relevant occupational base.

The decision of the ALJ became final when it was approved by the Appeals Council on November 3, 1993. Plaintiff now seeks judicial review of that decision pursuant to 42 U.S.C. SEC.(s) 405(g) and 1383(c)(3). Plaintiff contends that summary judgment should be granted in his favor because the ALJ's decision is not supported by substantial evidence. Specifically plaintiff alleges that neither the ALJ's finding that plaintiff's psychiatric impairment is not severe nor his finding that plaintiff's substance abuse is voluntary are supported by substantial evidence.


"Disability" is defined as the "inability to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. SEC. 423(d)(1)(A). A physical or mental impairment is "an impairment that results from anatomical physiological or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. SEC. 423(d)(3). An individual is under a disability "only if his physical or mental . . . impairments are of such severity that he is not only unable to do his previous work but cannot considering his age education and work experience engage in any other kind of gainful work which exists in the national economy." 42 U.S.C. SEC. 423 (d)(1)(A). The Secretary has established a five part analysis for the ALJ to use in evaluating claims of disability. See 20 C.F.R. SEC. 404.1520. If it is found that a claimant is not disabled at any point in this analysis further review by the ALJ is not necessary. Id. The Secretary must also consider the combined impact of conditions which although not independently severe enough to cause disability may act in concert to create disability. See Sprague v. Bowen 812 F.2d 1226 1231 (9th Cir.1987).

The claimant bears the burden to establish entitlement to disability insurance benefits and/or SSI based on disability. 42 U.S.C. SEC. 423(d)(1)(A); Gallant v. Heckler 753 F.2d 1450 1452 (9th Cir.1984); Kornock v. Harris 648 F.2d 525 526 (9th Cir.1980). However after a claimant establishes a prima facie case of severe disability by showing an inability to perform his previous employment the burden shifts to the Secretary to prove that the claimant can engage in other types of substantial gainful employment which exists in the national economy. Kornock v. Harris 648 F.2d at 526.The ALJ is not bound by the opinions of claimant's physicians on the ultimate issue of disability 20 C.F.R. 404.1527 but he cannot reject uncontroverted opinions of treating physicians without presenting clear and convincing reasons for doing so. Montijo v. Secretary of Health & Human Servs. 729 F.2d 599 601 (9th Cir.1984).

In reviewing the Secretary's finding this Court must determine whether the Secretary's decision is supported by substantial evidence. Sprague v. Bowen 812 F.2d at 1229; Thompson v. Schweiker F.2d 936 939 (9th Cir.1982). A district court may disturb the Secretary's final decision "only if it is based on legal error or if the fact findings are not supported by substantial evidence." Sprague v. Bowen F.2d at 1229. Substantial evidence is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Matthews v. Shalala 10 F.3d 678 679 (9th Cir.1993). Court's review "must consider the record as a whole " both that which supports as well as that which detracts from the Secretary's decision. Desrosiers v. Secretary of Health & Human Servs. 846 F.2d 573 576 (9th Cir.1988).


I. Psychiatric Impairment As Disability

The evidence before the ALJ consisted of two medical evaluations of plaintiff the testimony of a medical expert and plaintiff's own testimony. Based on this evidence the ALJ found that plaintiff does not have a "severe" medically determinable psychiatric impairment. 20 C.F.R. SEC.(s) 404.1520(c) 416.920(c).

Dr. Laura Levine a psychologist examined plaintiff on March 19 1992 at the request of plaintiff's Counsel. She interviewed plaintiff obtained a medical history regarding his physical ailments and administered several psychological tests. She found plaintiff disoriented as to date and reported that plaintiff "manifested a somatoform pain disorder compounded by alcohol cocaine and codeine dependence a dysthymic disorder [depression] and an antisocial personality disorder collectively producing cognitive and functional impairments which render him incapable of coping effectively with the demands of the larger social environment and which impose significant limitations upon his capacity to perform any but the most minimal self-care and household chores. . . . his prognosis is at best guarded." (Tr. 236)

Dr. Philip Hicks a psychiatrist examined plaintiff on July 13 1992 at the request of the ALJ. Dr. Hicks diagnosed cocaine and alcohol dependence codeine abuse and personality disorder with elements of antisocial and borderline personalities. (Tr. 240) Dr. Hicks also diagnosed plaintiff's right wrist and right knee impairments. (Id. at 241) He identified plaintiff's drug and alcohol use as the "limiting factor to his ability to work at the present time." (Id. at 241) Dr. Hicks concluded that it is "doubtful that [plaintiff] is going to be able to be employed until he makes some move toward reducing his intake of both alcohol and cocaine." (Id.) In addition Dr. Hicks rated plaintiff as having a "fair" ability to do work-related activities in thirteen out of fifteen areas set forth as relevant by the Social Security Administration. (See id. at 242-43) "Fair" means the plaintiff's "ability to function [in work-related activities] is seriously limited but not precluded." (Id. at 242) Further Dr. Hicks found plaintiff to be fully oriented neither elated nor depressed with no evidence of thought disorder and with memory insight and judgment intact. (Id. at 240-41)

Dr. Frederic Morgenstern a psychiatrist reviewed the medical reports of both Dr. Levine and Dr. Hicks and independently interrogated plaintiff at the supplemental hearing before the ALJ regarding plaintiff's substance abuse and physical impairments. (See Tr. 87-109) Dr. Morgenstern testified at the supplemental hearing at the request of the ALJ who after the original hearing decided that he needed the assistance of a medical expert to reach a "just decision." (Tr. 70) Dr. Morgenstern found no convincing documentation of personality disorder any antisocial behavior or depression. (Tr. 93 95 100-101) He criticized Dr. Levine's findings of somatoform disorder as a misinterpretation of plaintiff's physical knee problem. (Tr. 100 232) Dr. Morgenstern assessed no psychiatric impairment which would constitute disability.

The ALJ rejected Dr. Levine's report and concluded that plaintiff does not suffer from a "severe" medically determinable psychiatric impairment (aside from substance abuse discussed infra). The ALJ based his conclusion primarily on Dr. Morgenstern's testimony plaintiff's testimony and Dr. Hicks' report. Our review indicates that there is substantial evidence to support the ALJ's conclusion.

When a medical opinion is uncontroverted the ALJ must provide clear and convincing reasons based on substantial evidence for rejecting it. Bilby v. Schweiker 762 F.2d 716 718 (9th Cir.1985) (citations omitted); Montijo v. Secretary of Health & Human Servs. 729 F.2d at 601; 20 C.F.R. SEC. 404.1527. But when medical evidence is contradicted it is the Secretary who resolves disputes. Sanchez v. Secretary of Health & Human Servs. 812 F.2d 509 510 (9th Cir.1987). Further the ALJ is responsible for determining the credibility of evidence. Magallanes v. Bowen 881 F.2d 747 750 (9th Cir.1989).

Dr. Levine's conclusions are contradicted by both Dr. Hicks and Dr. Morgenstern. Although both Dr. Levine and Dr. Hicks found that Mr. Robinson suffered from a personality disorder with antisocial features as well as cocaine and alcohol dependence their conclusions regarding the impact of these impairments on plaintiff's ability to work differ. Dr. Levine's report supports a finding of a "severe" psychiatric impairment as limiting plaintiff's ability to work while Dr. Hicks identified plaintiff's drug and alcohol use (rather than any psychiatric impairment) as the "limiting factor to [plaintiff's] ability to work at the present time." (Tr. 236 241) In addition Dr. Hicks described plaintiff's memory insight and judgment as "intact" while Dr. Levine described plaintiff as disoriented as to date. (Tr. 233 240) Dr. Levine also diagnosed somatoform disorder and dysthymic disorder; neither of these impairments were diagnosed by Dr. Hicks. (Tr. 235 240-41) The reports of Dr. Levine and Dr. Hicks are not consistent as plaintiff contends.

Dr. Morgenstern's testimony also conflicts with Dr. Levine's report. If the testimony of a non-examining non-treating medical expert such as Dr. Morgenstern is contradicted by all other evidence in the record it is not substantial evidence. Magallanes v. Bowen 881 F.2d at 752. But when the testimony of a medical expert is consistent with other evidence of record it can provide substantial evidence even if it is contradicted by some evidence in the record. Id. Dr. Morgenstern's opinion is not contradicted by all other evidence in the record and thus can provide substantial evidence. Dr. Morgenstern opined that plaintiff is not precluded from working based on a psychiatric impairment. (Tr. 93 95 100-101) Dr. Hicks identified plaintiff's drug and alcohol use as the "limiting factor to his ability to work at the present time " (Id. at 241) not a psychiatric impairment. Thus Dr. Morgenstern and Dr. Hicks agree that plaintiff is not disabled due to a psychiatric impairment. Dr. Morgenstern's conclusion is also supported by plaintiff's own testimony. At the hearing Mr. Robinson testified that he cooked did yard work painted artistically and did numerology as a hobby. (Tr. 21 64 65) Dr. Levine's report indicates that plaintiff reported spending his days doing "breathing exercises watching television painting drawing reading 'metaphysical' and 'inspirational' books drinking talking and sharing drugs and alcoholic beverages brought by visitors." (Id. at 232) Plaintiff also testified that he collects aluminum cans for money. Plaintiff's own testimony regarding his daily activities supports Dr. Morgenstern's opinion that plaintiff does not have a severe psychiatric impairment. Further Mr. Robinson has never been treated for psychiatric illness or substance abuse. Although he was seen by several different doctors between 1984 and 1989 for his hand and knee injuries none of them ever diagnosed any kind of psychiatric impairment. Dr. Jonathan Francis who treated plaintiff for two years never noted psychiatric impairment or depression severe or otherwise.

The reports of consultative physicians such as Dr. Morgenstern may serve as substantial evidence. Magallanes v. Bowen 881 F.2d at 752. "The analysis and opinion of an expert selected by the ALJ may be helpful to the ALJ's adjudication and we should not impose 'burdensome procedural requirements that facilitate . . . second-guessing [the ALJ's resolution of conflicting medical testimony].'" Id. (quoting Allen v. Heckler 749 F.2d 577 579 (9th Cir.1984)). Generally reports of examining doctors are given more weight than those of non-examining physicians. 20 C.F.R. SEC. 404.1527(d)(1). The stronger and more enduring the doctor-patient relationship the more weight the doctor's opinion deserves. See 20 C.F.R. SEC. 404.1527(d). Thus reports of treating physicians who work with patients trying to cure them of ailments are generally accorded more weight than those of both examining and non-examining physicians. See id. Further the more consistent a medical opinion is with the rest of the record the more weight it will be given. Id.

Plaintiff claims that Dr. Levine's opinion should have been given more weight than Dr. Morgenstern's opinion and cites Gallant v. Heckler 753 F.2d 1450 (9th Cir.1984) in support of this claim. In Gallant however the ALJ relied on a non-examining physician's opinion that controverted all other medical opinions including the claimant's treating physicians. 753 F.2d at 1451-52. Further the ALJ did not set forth reasons for rejecting the opinions of eleven physicians including treating physicians. Id. at 1454-55. Dr. Levine is a consultative physician who only examined plaintiff once. There is not a battery of doctors offering opinions of disability like there was in Gallant. There is only Dr. Levine's conclusions which are contradicted by other medical opinions.

Plaintiff contends that the ALJ failed to give adequate reasons for rejecting Dr. Levine's report and no reason for rejecting Dr. Hicks' report. Plaintiff misconstrues the law and misrepresents the record. When an opinion of a treating physician is uncontroverted the ALJ must give clear and convincing reasons for rejecting it. Montijo v. Secretary of Health & Human Servs. 729 F.2d at 601. Because Dr. Levine's report was contradicted the Montijo standard does not apply. Further in Montijo the ALJ's rejection of the uncontroverted opinions of three psychiatrists was based primarily on his own observation of the claimant during the hearing. Id. at 602. In this case not only is Dr. Levine's opinion controverted by other medical opinions but the ALJ gives adequate reasons for rejecting Dr. Levine's report.

The ALJ found plaintiff to be an unreliable informant. (Tr. 21 24) To the extent that Dr. Levine's report depended on plaintiff's own historical account and "self-servings statements " the ALJ found it also unreliable. (Tr. 21) The ALJ also identified flaws in Dr. Levine's historical account of plaintiff's knee injury. (Id.) In addition the ALJ stated that in his experience Dr. Levine "consistently finds claimants to have numerous psychological problems at variance with other mental health professionals." (Id.) Given that Dr. Levine examined plaintiff only once the ALJ's reasons for rejecting Dr. Levine's report are adequate.

The ALJ did not reject Dr. Hicks' report as plaintiff contends. The ALJ agreed with Dr. Hicks that plaintiff abuses both drugs and alcohol and that this abuse is severe. (Tr. 23) Based on this finding the ALJ went on to consider whether plaintiff's substance abuse is uncontrollable making him unable to work. (See discussion infra.) The ALJ's finding that plaintiff's psychiatric impairment is not disabling is not a rejection of Dr. Hicks' report because Dr. Hicks did not find plaintiff's psychiatric impairment disabling. Instead the ALJ's opinion is consistent with Dr. Hicks' report. To the extent that Dr. Hicks relied on independent clinical findings his report constitutes substantial evidence in support of the ALJ's opinion. Magallanes v. Bowen 881 F.2d at 752.

In sum the ALJ's findings that plaintiff does not suffer from severe psychiatric impairments are supported by substantial evidence both in Dr. Hicks' medical report and Dr. Morgenstern's expert testimony. This Court will therefore not disturb such a finding on appeal.

II. Substance Abuse as Disability

Both Dr. Levine and Dr. Hicks diagnosed Mr. Robinson's cocaine and alcohol dependence. (Tr. 235 240) Neither explicitly gave an opinion as to whether plaintiff could control his substance abuse (id.) although Dr. Hicks reported that plaintiff lacked any "strong motivation . . . to change his current behavior." (Id. at 241) Dr. Morgenstern testified that plaintiff is able to control his drug and alcohol use. (Id. at 95-97)

Based on the testimony of plaintiff and Dr. Morgenstern the ALJ found that although plaintiff is a substance abuser his use in not disabling. Our review indicates that there is substantial evidence to support the ALJ's finding.

Substance abuse is not per se disabling but can constitute a disability if it is so "uncontrollable" that it is "disabling " i.e. if it precludes the claimant from engaging in substantial gainful activity. Clem v. Sullivan 894 F.2d 328 330 (9th Cir.1990);Cooper v. Bowen 815 F.2d 557 560 (9th Cir.1987). Once the claimant establishes evidence of diagnosed substance abuse the ALJ must make an adequate inquiry and specific findings supported by substantial evidence regarding controllability and the disabling effect of the substance abuse. Tylitzki v. Shalala 999 F.2d at 1413 1415; Clem v. Sullivan 894 F.2d at 331; Cooper v. Bowen 815 F.2d at 560. Uncontrollable substance abuse alone will not be considered disabling if it does not preclude plaintiff from returning to work. Tylitzki v. Shalala 999 F.2d 1411 1415 (9th Cir.1993); Clem v. Sullivan 894 F.2d at 331. The requirement that the ALJ make an inquiry does not relieve the claimant of his burden of establishing that he is disabled and therefore unable to do his previous work. Clem v. Sullivan 894 F.2d at 331.

The ALJ adequately inquired into plaintiff's ability to control his drug and alcohol use by directly questioning plaintiff and by soliciting Dr. Morgenstern's opinion regarding plaintiff's testimony. The ALJ made specific findings in support of his conclusion that plaintiff could control his use of drugs and alcohol if he chooses and is not disabled by his substance abuse. (Tr. 22-23)

The ALJ found no evidence that plaintiff suffered physical or mental end organ damage from his substance abuse; no evidence that plaintiff has made any serious attempt to stop using drugs and alcohol; and no evidence that he has ever lost a job due to substance abuse. (Tr. 22-23) The ALJ cited plaintiff's testimony that he uses less codeine now than he did in the past because "it costs more now" and is not as available (Id.) to support a finding that plaintiff can control his substance use. Dr. Hicks' report that plaintiff lacked motivation to change his behavior also supported the ALJ's finding. (Id.)

Plaintiff contests these findings claiming they are not supported by substantial evidence and misrepresent the factual record. But plaintiff offers no contradictory evidence to prove that his drug and alcohol use is so uncontrollable that it prevents him from working. Plaintiff has therefore not met his burden of proving disability.

Plaintiff testified that he attended several meetings of a drug treatment program with his girlfriend at her urging but that he never went on his own. Plaintiff has never been to Alcoholics Anonymous. At his supplemental hearing plaintiff testified that he had not tried to stop using drugs or alcohol since the early 1980's because he "like[s] the high " and drugs and alcohol make him "forget about [his] problems." (Tr. 85) This evidence does not contradict a finding that plaintiff has made no serious attempt to stop using drugs and alcohol.

Plaintiff testified that he lost several jobs between 1986 and 1988 in part because of his drug use (Tr. 44-46) but also testified that none of his employers knew about his drug use. (T.R. 61) Plaintiff told Dr. Levine that he was fired from one job for stealing and from another because of "a conspiracy against him by homosexual mailroom employees." (Tr. 232) Plaintiff's testimony does not refute the ALJ's finding that plaintiff has not lost jobs due to substance abuse. Plaintiff's testimony is ambiguous and contradictory. Both credibility of witnesses and ambiguities in the evidence are for the ALJ to resolve and will not be disturbed on appeal. Magallanes v. Bowen 881 F.2d at 750; Sanchez v. Secretary of Health & Human Servs. 812 F.2d at 511. The ALJ was therefore justified in rejecting plaintiff's assertions that he was fired because of drug use.

The evidence offered by plaintiff stands in contrast to that offered in a similar case Tylitzki v. Shalala 999 F.2d 1411 (9th Cir.1993). In Tylitzki the ALJ's conclusion that Tylitzki's substance abuse was controllable was not supported by substantial evidence because there was evidence that Tylitzki had been fired by the same employer six times due to alcohol abuse and had undertaken multiple rehabilitation programs but still failed to kick his alcohol addiction. Tylitzki v. Shalala 999 F.2d at 1414. The factual showing here does not even approach the factual showing made in Tylitzki.

The ALJ also relied on Dr. Morgenstern's opinion that plaintiff's substance abuse was controllable and did not preclude plaintiff from working. The ALJ may rely on medical expert testimony consistent with other evidence of record even if it is contradicted by some evidence; thus the ALJ could rely on Dr. Morgenstern here. See supra.

In sum the ALJ made an adequate inquiry into plaintiff's ability to control his substance abuse and made specific findings based on substantial evidence that plaintiff's substance abuse did not preclude him from working. Plaintiff did not contradict the ALJ's findings and thus failed to meet his burden of proving disability due to substance abuse.

The ALJ also considered the combined effect of plaintiff's impairments and whether they although not independently disabling might in concert be disabling. (Tr. 23 24); see Sprague v. Bowen 812 F.2d at 1231 (discussing the need to consider the impact of evidence of mental impairment even if alone insufficient to create a disability in combination with physical ailments). All three consultative doctors Dr. Levine Dr. Hicks and Dr. Morgenstern considered plaintiff's psychiatric impairment substance abuse and physical impairments in making their assessments. To the extent that the ALJ relied on these assessments he was considering the combined effect of plaintiff's impairments. After determining that plaintiff retains the capacity to perform a significant number of "medium" and "light" jobs in the national economy the ALJ stated that "there is no evidence of any psychiatric disorder or other impairment which would further erode the relevant occupational job base." (Tr. 24)

Accordingly and good cause appearing IT IS HEREBY ORDERED that the Secretary's decision denying plaintiff disability insurance benefits and SSI is affirmed.