Bustamante v. Massanari, PLAINTIFF-APPELLANT

Citation262 F.3d 949
Decision Date27 August 2001
Docket NumberNo. 99-17194,PLAINTIFF-APPELLANT,DEFENDANT-APPELLEE,99-17194
Parties(9th Cir. 2001) JOSEPH BUSTAMANTE,, v. LARRY G. MASSANARI, <A HREF="#fr1-*" name="fn1-*">* ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Harvey P. Sackett, A Professional Law Corporation, San Jose, California, for the plaintiff-appellant.

Lorna K. Li, Office of Regional Counsel, Social Security Administration, San Francisco, California, for the defendant-appellee.

Appeal from the United States District Court for the District of Northern California; Saundra B. Armstrong, District Judge, Presiding. D.C. No. 98-03037 SBA

Before: Betty B. Fletcher, Ferdinand F. Fernandez, and Richard A. Paez, Circuit Judges.

Paez, Circuit Judge:

OPINION

Joseph Bustamante appeals the district court's judgment affirming the Social Security Administration's ("SSA") denial of his application for disability benefits and for Supplemental Security Income under Titles II and XVI of the Social Security Act ("the Act"). We have jurisdiction under 28 U.S.C. §§ 1291, and we reverse and remand because (1) the Administrative Law Judge ("ALJ") prematurely evaluated the impact of Bustamante's alcoholism prior to completing the five-step sequential disability inquiry; and (2) the ALJ's conclusion that Bustamante did not have a severe mental impairment was not supported by substantial evidence.

I. BACKGROUND

Bustamante was 53 years old at the time of the alleged onset of his disability in 1994. He has an eighth-grade education and relevant work experience as a newspaper delivery person and temporary laborer. Bustamante also has at least a 20-year history of alcohol abuse and is frequently homeless.

A. Procedural History

On July 5, 1994, Bustamante applied for a "Period of Disability and Disability Insurance Benefits" under§§§§ 216(i) and 223 of the Act, 42 U.S.C. §§§§ 416(i) and 423, and for Supplemental Security Income ("SSI") under §§ 1614(a)(3)(A) of the Act, 42 U.S.C. §§ 1382c(a)(3)(A), (collectively, "disability benefits"). Bustamante initially alleged that he suffered from diabetes mellitus, tuberculosis, pneumonia, and back problems. He later alleged diabetes, memory problems, a history of alcohol abuse, and anxiety.

The SSA denied his application on January 9, 1995. Bustamante then requested a hearing before an ALJ to obtain a de novo review of the SSA's ruling. At a hearing on April 17, 1996, Bustamante testified and was represented by counsel. At the conclusion of the hearing, the ALJ held the record open for the receipt of additional psychological evidence.

On December 27, 1996, the ALJ, after considering the additional post-hearing evidence, issued a written decision finding Bustamante ineligible for disability benefits.

The ALJ found that Bustamante suffered from diabetes mellitus and had a history of pulmonary tuberculosis, but that these conditions did not constitute a severe physical impairment, as defined by 20 C.F.R. §§§§ 404.1521, 416.921, because the former was not severe and the latter was successfully treated with medication.

The ALJ also found that Bustamante suffered from two mental impairments: a personality disorder and a substance abuse addiction disorder, that "result[ed] in moderate difficulties with activities of daily living, marked difficulties in maintaining social functioning, and seldom . . . deficiencies in concentration, persistence or pace." The ALJ noted that Bustamante also had "continual episodes of deterioration or decompensation in the work place."

Nevertheless, the ALJ rejected Bustamante's mental impairments as a basis for disability eligibility on several independent grounds. First, the ALJ found that "alcohol abuse is his primary impairment" and that "any secondary behavioral and emotional conditions he may have are the product and consequence of his alcohol abuse and not an independently severe or disabling impairment." Second, the ALJ concluded that even Bustamante's alcohol abuse did"not reach a disabling level of severity." Third, the ALJ concluded, with little analysis, that Bustamante "retains the physical and mental ability to perform basic work-related functions, including his past relevant work as a newspaper delivery person or laborer." The ALJ also found that Bustamante"was not credible as to his limitations." Finally, the ALJ concluded that "alcohol abuse is a contributing factor material to a finding of disability."

Bustamante appealed the ALJ's decision to the SSA Appeals Council on December 27, 1996. The Appeals Council affirmed after reviewing both the ALJ's decision and additional evidence from a psychiatrist who examined Bustamante after the ALJ's decision.

On August 4, 1998, Bustamante sought judicial review of the final decision by filing a complaint in federal district court against the Commissioner of the SSA, pursuant to 42 U.S.C. §§§§ 405(g) and 1383(c)(3). The district court granted summary judgment against Bustamante on September 8, 1999, in a one-line order, stating simply "that defendant's decision is supported by substantial evidence."

Bustamante filed a timely notice of appeal on October 1, 1999.

B. Medical & Psychological Evidence

Between 1995 and 1997, several medical and mental health professionals examined Bustamante. The reports of the first three were considered by the ALJ in his December 1996 decision. The report of the last one, Dr. Newman, was not prepared until after the ALJ's decision but was considered by the SSA Appeals Council on Bustamante's appeal and is part of the administrative record.

1. William P. Andersen, M.D.

William P. Andersen, M.D., conducted a consultative medical examination on behalf of the SSA on October 16, 1995. He recorded the following ailments: chronic alcoholism, non-insulin dependent diabetes mellitus, history of pulmonary tuberculosis, peripheral edema, and a "mood disorder, secondary to chronic substance abuse and chronic alcoholism, associated with depressive features which are moderate to severe, and social stressors of homelessness." Dr. Andersen further noted that Bustamante's diabetes was such that "I am not able to qualify him for any known listing under the SSI requirements" and that his pulmonary tuberculosis was of a type that "would not be expected to be disabling."

Dr. Andersen concluded that he "would defer to the results of a neuropsychiatric examination in this patient " but speculated that Bustamante's "best qualifier for disability would be through the presence of his basically untreated substance abuse problem and the chronic mood disorder, which I believe may be secondary to chronic alcoholism." He acknowledged that it "would be difficult to make an exact diagnosis in this case, since his drinking began at such a young age."

2. David Pingitore, Ph.D.

David Pingitore, Ph.D., an SSA consultative psychologist, also examined Bustamante on October 16, 1995. In addition to noting Bustamante's history of alcohol abuse and his various physical ailments, Dr. Pingitore administered a COGNISTAT test to evaluate cognitive functioning. Dr. Pingitore concluded in his functional assessment and recommendation that Bustamante "currently possesses a marked degree of impairment in activities of daily living, as well as cognitive functioning and interpersonal relations." He found that Bustamante "suffers from cognitive deficits that are the effects of long-term alcohol use," but Dr. Pingitore could not say "whether any of these cognitive deficits are reversible if this client maintains sobriety from alcohol and enters a treatment program."

3. Gary G. Balestin, Ph.D.

Approximately one year later, on October 31, 1996, Gary G. Balestin, Ph.D., another SSA consultative psychologist, examined Bustamante and administered several tests. On a test for malingering, Bustamante's score was consistent with someone who deliberately misrepresents his memory span.

On the basis of this and other tests, as well as his clinical interview, Dr. Balestin diagnosed Bustamante with chronic alcohol abuse, dysthymia secondary to financial problems, and "personality disorder NOS [dependent, passive, avoidant, inadequate]." Dr. Balestin also rated Bustamante's functional capacities. He found that Bustamante was mildly impaired ("slight impairment which does not affect functional ability") in 5 of 14 tasks and moderately impaired ("impairment which affects but does not preclude") in the remaining 9 tasks.

4. Emily Newman, M.D.

Emily Newman, M.D., a psychiatrist, also examined Bustamante on three different occasions in the first half of 1997. Although no medical reports from Dr. Newman appear in the record, the record includes a letter from Dr. Newman dated May 5, 1997. In her letter, Dr. Newman diagnosed Bustamante with "Psychotic Disorder, 298.90," "Alcohol Dependence, 303.9," and "Schizotypal Personality Disorder." Dr. Newman also wrote that a recent decrease in alcohol consumption "has likely contributed to his increase in psychotic symptoms" (emphasis added). Dr. Newman concluded:

Mr. Bustam[a]nte is quite functionally impaired. His psychotic symptoms and his anxiety prevent him from being organized enough to remember appointments. He is too paranoid about people to be able to work in any environment where contact with others is required.

II. DISCUSSION
A. Standard of Review

We review de novo the decision of the district court affirming the decision of the ALJ. Tackett v. Apfel , 180 F.3d 1094, 1097 (9th Cir. 1999). We may set aside the Commissioner's denial of disability benefits when the findings of the ALJ are based on legal error or are not supported by substantial evidence in the record as a whole. Id. "Substantial evidence is defined as `more than a mere scintilla but less than a preponderance.' " Id. at 1098 (internal citations omitted). If the evidence can support either outcome, we may not substitute our...

To continue reading

Request your trial
2106 cases
  • Almazan v. Colvin, Case No. 1:13-CV-001172-SMS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 14 Octubre 2014
    ...alcoholism is a contributing factor material to a disability claim. 42 U.S.C. §§ 423(d)(2)(C) and 1382(a)(3)(J); Bustamante v. Massanari, 262F.3d 949 (9th Cir. 2001); Sousa v. Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998). If there is evidence of DAA and the individual succeeds in proving d......
  • Eiker v. Astrue, Civil Action No. CBD-11-3584
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • 15 Mayo 2013
    ...effects that may be due to substance abuse disorders.3 Brueggemann v. Barnhart, 348 F.3d 689, 694 (8th Cir. 2003); Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001); Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001); McGhee v. Barnhart, 366 F. Supp. 2d 379, 389 (W.D. Va. 2......
  • Corral v. Colvin, 2:13-cv-3056-FVS
    • United States
    • United States District Courts. 9th Circuit. Eastern District of Washington
    • 10 Julio 2014
    ...Cir. 2005). However, a finding of "disabled" does not automatically qualify a claimant for disability benefits. Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). When there is medical evidence of drug or alcohol addiction, the ALJ must determine whether the drug or alcohol addicti......
  • Finn v. Colvin, CV-13-3098-FVS
    • United States
    • United States District Courts. 9th Circuit. Eastern District of Washington
    • 10 Diciembre 2014
    ...abuse is developed on remand, the ALJ should consider whether a drug and alcohol abuse analysis is appropriate. See Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). Notwithstanding the ambiguity regarding organic mental disorders and polysubstance abuse, the ALJ included most of ......
  • Request a trial to view additional results
9 books & journal articles
  • Case Index
    • United States
    • James Publishing Practical Law Books Bohr's Social Security Issues Annotated - Volume I
    • 4 Mayo 2015
    ...IMPAIRMENT § 103.1. Definition of Severity Cowan v. Astrue , 552 F.3d 1182 (10th Cir. Dec. 24, 2008), 10th-08 Bustamante v. Massanari , 262 F.3d 949 (9th Cir. Aug. 27, 2001), 9th-01 Caviness v. Massanari , 250 F.3d 603 (8th Cir. May 9, 2001), 8th-01 Dixon v. Barnhart , 353 F.3d 602 (8th Cir......
  • Case survey
    • United States
    • James Publishing Practical Law Books Bohr's Social Security Issues Annotated - Volume I
    • 4 Mayo 2015
    ...of positions meeting Edlund’s requirements failed to include consideration of such impairments. Id. (2) In Bustamante v. Massanari , 262 F.3d 949, 955 (9th Cir. 2001), the court held that to the extent the ALJ determined that the claimant’s mental impairments were not severe regardless of t......
  • Issue topics
    • United States
    • James Publishing Practical Law Books Archive Social Security Issues Annotated. Vol. II - 2014 Contents
    • 3 Agosto 2014
    ...claims.’” Id., quoting Smolen v. Chater , 80 F.3d 1273, 1290 (9th Cir. 1996). The Ninth Circuit held in Bustamante v. Massanari , 262 F.3d 949 (9th Cir. 2001) that to the extent the ALJ determined that the claimant’s mental impairments were not severe regardless of the impact of alcoholism,......
  • Issue Topics
    • United States
    • James Publishing Practical Law Books Social Security Disability Collection - James' Best Materials. Volume 2
    • 5 Mayo 2015
    ...claims.’” Id., quoting Smolen v. Chater , 80 F.3d 1273, 1290 (9th Cir. 1996). The Ninth Circuit held in Bustamante v. Massanari , 262 F.3d 949 (9th Cir. 2001) that to the extent the ALJ determined that the claim-ant’s mental impairments were not severe regardless of the impact of alcoholism......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT