Andrews v. Shalala

• Decision Date: 01 May 1995
• Docket Number: No. 93-35599,93-35599
• Citation: 53 F.3d 1035
• Parties: , Unempl.Ins.Rep. (CCH) P 14580B Raymond E. ANDREWS, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1035

53 F.3d 1035

47 Soc.Sec.Rep.Ser. 620, Unempl.Ins.Rep. (CCH) P 14580B

Raymond E. ANDREWS, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services,

Defendant-Appellee.

No. 93-35599.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 1995.

Decided May 1, 1995.

Timothy P. Baxter, Lane County Legal Aid Service, Inc., Eugene, OR, for plaintiff-appellant.

Kathryn A. Warma, Asst. Regional Counsel, Dept. of Health and Human Services, Seattle, WA, for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before: HALL, O'SCANNLAIN, and RYMER, Circuit Judges.

RYMER, Circuit Judge:

Raymond E. Andrews appeals the district court's entry of summary judgment for the Secretary of Health and Human Services, affirming the Secretary's denial of Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act, 42 U.S.C. Sec. 1381 et seq. Andrews argues that the Administrative Law Judge improperly rejected the conclusions of the examining psychologist without giving clear and convincing reasons for doing so, and that the determination of nondisability was not based on substantial evidence. 42 U.S.C. Sec. 405(g). He further asserts that, even if the ALJ were entitled to discount the opinion of the psychologist who examined him, the ALJ's decision must nonetheless be reversed because the hypothetical that formed the basis for the vocational expert's opinion did not accurately reflect the limitations found by the medical advisor. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We hold that the Secretary was entitled to adopt the opinion of the nonexamining medical advisor, who was present at the hearing and testified, and to discount the opinion of the examining physician, because the ALJ gave specific and legitimate reasons for doing so that were based on substantial evidence in the record in addition to the nonexamining psychologist's opinion. However, because we agree that the hypothetical given to the vocational expert was inadequate, we reverse and remand for further proceedings.

I

Andrews was born in 1964. He dropped out of high school but secured an equivalency certificate. Andrews has worked as an electrical machine winder, a pizza cook, a craftsman for a stained glass manufacturer, a carpenter/laborer, and a machine off-bearer. Andrews most recently worked as a cook in a restaurant, but by his own account quit after only half a day because of the stress involved. Andrews was homeless at the time of the hearing before the ALJ, living at a "mission" and doing cleaning and salvage work in exchange for his daily room and board.

Andrews suffers from psoriasis which flares up periodically. Consequently, the ALJ found that jobs involving exposure to certain caustic substances and detergents are unsuitable. Andrews's appeal, therefore, challenges only the ALJ's view of his psychological problems: drug addiction, paranoia (schizotypal personality), adjustment disorder and depression, all allegedly resulting in an inability to function in social situations. Andrews was found disabled by the state of Oregon for the purpose of qualifying for state public assistance, and has been rejected for vocational rehabilitation because of his drug use.

In December 1987, Andrews was diagnosed as having a dysthymic mental disorder and a mixed substance abuse disorder. On September 30, 1990, Andrews presented in a hospital emergency room and was diagnosed with alcoholism, a mixed personality disorder, and an adjustment disorder with mixed features. William McConochie, Ph.D., a licensed psychologist, examined Andrews on four occasions in connection with Andrews's application for public assistance benefits provided by the state of Oregon. After the first examination, on November 6, 1990, McConochie concluded that Andrews did not "appear to be actively psychotic" and that his thought processes were "generally intact." He noted that Andrews was "somewhat paranoid." The diagnosis included major depression, recurrent, severe; and a schizotypal personality disorder. McConochie rated Andrews's prognosis as "poor." McConochie credited Andrews's claim that he had his drug problem under control. McConochie did not report conducting any standardized psychological or intelligence tests.

McConochie examined Andrews again on April 3, 1991. Despite noting a general improvement in his mental condition, McConochie found him to be "unemployable for the next six months on the open job market." McConochie found that Andrews would benefit from work in a "semi-sheltered" setting. He examined Andrews for a third time on October 8, 1991. He noted Andrews's paranoia, anxiety and drug dependence and stated that Andrews was moderately depressed. The diagnosis was cannabis dependence, post-traumatic stress disorder based on an abusive childhood, and schizotypal personality disorder (relating to paranoia and anxiety). The prognosis was rated as "poor" and "chronic." McConochie noted that Andrews had "many excuses" for why he could not seek counseling or attend school.

On December 16, 1991, McConochie filled out a "Medical Assessment of Ability to do Work-Related Activities (Mental)." On a four-point scale that ranged from "Unlimited/Very Good" to "Poor/None," McConochie rated Andrews's various employment related attributes as "Poor/None" in 12 of 15 categories. McConochie opined that Andrews was "severely handicapped by chronic drug abuse, depression and paranoid ideation." A December 31, 1991, evaluation yielded comments substantially similar to those made in the October evaluation.

Andrews testified that he felt anxious and trapped in employment situations. He asserted that he had sought help with his mental health, but indicated a lack of resources to pay for a program and that "there aren't any free programs for males." Andrews testified that he had been "clean and sober" prior to October, 1991, but by that time began having anxiety attacks and "used marijuana as needed to control my anger and aggressive feelings." He said that, at the time of the hearing, he was using neither alcohol nor drugs; that he had no desire to smoke marijuana; and that he wanted to drink, but did not. Andrews testified that he had previously smoked about a gram of marijuana a day for a two week period in 1991, although McConochie's reports from this period indicate a longer period of use. Andrews testified that he had stopped drinking around December, 1990; however, he told McConochie in November, 1990, that he had stopped drinking 18 months earlier.

According to Andrews's testimony, he briefly shared an apartment with a woman that he was "trying to have a relationship with." Another brief relationship ended after the woman was diagnosed with "multiple personality disorder." Andrews stated that he regularly attends local Alcoholics Anonymous meetings and stays until closing at 10:00 PM, when he goes to the mission. He stated that he has no problem sleeping. Andrews testified that he considers the police a potential enemy and that he feels threatened by the "movement" against the right to bear arms, but stated that he didn't think "people are following me around." Andrews stated that despite the hostile environment he experienced on the streets, "I'm not out there stealing and I'm not out there killing people for money and I still have the desire to succeed if I'm given a chance." Andrews stated that he had attempted suicide in the past but now doesn't "think about it in the sense where I'm going to carry it out today." He testified that he went to Sacred Heart Hospital on two occasions after anxiety attacks; the visits were unsuccessful because Andrews perceived the counselor as hostile. Andrews noted that he had learned "manipulation" on the streets, and that when he would go before a court he would "play stupid" to "get leniency."

Andrews's medical files were reviewed by five mental health professionals, including two psychiatrists, for purposes of determining disability. None rated him as more than moderately impaired in any category on the mental residual functional capacity (MRFC) form. One, Janice Green, Ph.D., a psychologist with special experience in the treatment of substance abuse, testified at the January 21, 1992, disability hearing before the ALJ. Green did not examine Andrews in a clinical setting, but she had reviewed Andrews's medical records and heard him testify. Based on these observations, she expressed the opinion that Andrews's primary disability was polysubstance abuse; that Andrews was able to control his drug use and that, in light of his activities, the abuse was in remission; that Andrews's medical record was based on self-reporting; that there probably was a personality disorder, but the record did not support a diagnosis of schizophrenia; and that his work limitations would consist of slight restrictions in daily activities, minor difficulty in social function, regular occurrences of deficiency of concentration, persistence and pace, and one or two episodes of deterioration. Her assessment of Andrews's mental residual functional capacity concurred with that made on July 9, 1991, by K. Bates Smith, Ph.D., which was based on a review of documentary evidence, including McConochie's evaluations to that date. According to this evaluation, Andrews was no more than moderately limited in any of the 20 standard categories. Green also opined that the results of psychological testing would be clouded by Andrews's substance abuse and thus unreliable.

The ALJ found that Andrews was not an uncontrollable alcohol or drug addict and that he was "a very skillful, manipulative person who has learned to exploit persons and situations to his best advantage." Because McConochie's opinion as to disability was made "without consideration of the claimant's own admission that he is a manipulator and therefore not a generally credible person," and...