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

53 F.3d 1035, 95 Daily Journal DAR 5564, 95 Cal. Daily Op. Serv. 3232, 1995 U.S. App. LEXIS 9802
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 1, 1995
Docket12-56241
StatusPublished
Cited by3,635 cases

This text of 53 F.3d 1035 (Raymond E. ANDREWS, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Raymond E. ANDREWS, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant-Appellee, 53 F.3d 1035, 95 Daily Journal DAR 5564, 95 Cal. Daily Op. Serv. 3232, 1995 U.S. App. LEXIS 9802 (9th Cir. 1995).

Opinion

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. § 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. § 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. § 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, McCono-chie concluded that Andrews did not “appear to be actively psychotic” and that his thought processes were “generally intact.” He noted *1038 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, McCono-chie 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 McCono-chie 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.”

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53 F.3d 1035, 95 Daily Journal DAR 5564, 95 Cal. Daily Op. Serv. 3232, 1995 U.S. App. LEXIS 9802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raymond-e-andrews-plaintiff-appellant-v-donna-e-shalala-secretary-of-ca9-1995.