Eliza M. Robertson v. Michael J. Astrue, No. 2:2009cv08365 - Document 16 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. This matter will be remanded for further hearing consistent with this Memorandum Opinion. (See Order for Details). (rp)
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Eliza M. Robertson v. Michael J. Astrue Doc. 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 ELIZA M. ROBERTSON, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 09-08365-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff’s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record (“AR”) before the Commissioner. 25 Joint Stipulation (“JS”), and the Commissioner has filed the certified 26 AR. Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge (“ALJ”) properly Dockets.Justia.com 1 considered the medical evidence as contained in the treating 2 opinion from Dabney Blankenship, Ph.D. (JS at 4); 3 2. Whether 4 the ALJ properly considered the testimony of Plaintiff (JS at 17). 5 6 This Memorandum Opinion will constitute the Court’s findings of 7 fact and conclusions of law. 8 concludes 9 Commissioner must be reversed. that for the After reviewing the matter, the Court reasons set forth, the decision of the the ALJ 10 11 I 12 THIS MATTER MUST BE REMANDED FOR RECONSIDERATION OF 13 DR. BLANKENSHIP’S OPINIONS 14 In Plaintiff’s first issue, she questions whether 15 properly considered the medical evidence contained in the treating 16 opinion from Dabney Blankenship, Ph.D. (“Dr. Blankenship”). 17 addressing this question, the Court will briefly review Plaintiff’s 18 treatment record. Prior to 19 Plaintiff was first seen by Dr. Blankenship on December 19, 2005, 20 following her filing of a workers’ compensation claim related to work 21 place 22 comprehensive examination, including a Mental Status Evaluation, along 23 with 24 generally, 25 administered 26 (“RHRSD”), 27 reliable, 28 symptoms. harassment. eight (AR other as components objective the which and 191-210.) most which tests. Revised he Dr. described widely Dr. For Hamilton as used Blankenship “one tools Blankenship example, Rating of for performed Dr. Scale the for best evaluating a described, Blankenship Depression known, most depressive The scale has been used in the medical and psychiatric 2 1 communities and is appropriate for any medical or mental health 2 setting where depressive symptoms must be assessed.” (AR 200.) 3 Blankenship diagnosed Plaintiff as suffering from major depression, 4 severe, with psychotic features and post-traumatic stress disorder. 5 (AR 207.) 6 initial treatment date in December 2005, and go through October 17, 7 2006. (AR 211-223.) Dr. There are monthly treatment notes which post-date the 8 Following Dr. Blankenship’s last treatment visit with Plaintiff 9 in October 2006, he completed a 19-page Permanent and Stationary 10 Report on the 31st of that month in connection with Plaintiff’s 11 workers’ compensation case. (AR 248-267.) 12 Blankenship diagnosed major depression, single episode, moderate. 13 indicated that psychotic features initially present appeared to be in 14 remission, and also diagnosed post-traumatic stress disorder, residual 15 and slowly resolving. (AR 260.) 16 Assessment of Functioning (“GAF”) score of 58, reflecting a moderate 17 level of difficulty with social, occupational, and school functioning. 18 (AR 261.) 19 Impairment Rating” (AR 263), prefacing this with definitions. (AR 20 262.) 21 impairment, while “moderate” indicates a marked impairment. 22 is defined by Dr. Blankenship as inability to perform a work function. 23 These 24 Compensation terminology. 25 Plaintiff’s ability to maintain a work pace appropriate to a given 26 workload; slight to moderate impairment in her ability to perform 27 complex or varied tasks, and her ability to accept and carry out 28 responsibility for directions; moderate limitations in her ability to In that report, Dr. He He assessed a current General Significantly, Dr. Blankenship completed a “Work Function In these definitions, the term “slight” indicates a noticeable definitions were provided within the context of “Severe” Workers’ Dr. Blankenship found slight impairment in 3 1 influence people and her ability to make generalizations, evaluations 2 or decisions without immediate supervisors; and moderate to severe 3 limitations in her ability to relate to others beyond giving and 4 receiving instructions. 5 Following Dr. Blankenship’s last treatment visit with Plaintiff 6 in October 2006, he referred her to Dr. Musher, a psychiatrist, who 7 performed an evaluation and wrote a report. (AR 269-278.) 8 assessed Plaintiff with an anxiety disorder, NOS, and major depressive 9 disorder, 10 recurrent. (AR 276.) Dr. Musher agreed Dr. Musher with Dr. Blankenship’s work function disability rating. (AR 276.) There 11 is an apparent gap in Plaintiff’s treatment (which, 12 unfortunately, was not resolved during the hearing before the ALJ on 13 March 12, 2008 (AR 31-61), although Plaintiff testified), until 14 February 19, 2008, when Plaintiff again visited Dr. Blankenship, who 15 examined her, performed essentially the same psychological tests as 16 were administered during her initial visit, and provided a current 17 diagnosis of post-traumatic stress disorder and major depressive 18 disorder, severe, with a history of psychotic symptoms. (AR 279.) Dr. 19 Blankenship indicated that Plaintiff was having a marginal response to 20 treatment (AR 270-81) and noted resurfacing symptoms. (Id.) 21 completed a Mental Residual Functional Capacity Questionnaire which 22 contained “marked” and “extreme” limitations in areas of social 23 interaction and adaptation. (AR 283.)1 24 indicated that Plaintiff would require 20- to 30-minute breaks every 25 two hours if she attempted an He In the same report, he eight-hour workday, and further 26 27 28 1 Dr. Blankenship’s definitions of these terms is set out at AR 282. The definitions he utilized in 2008 are consistent with Social Security terminology. See 20 C.F.R. §404.1520a(c)(4). 4 1 indicated that, at present, she would never have any “good” days. 2 (Id.) 3 Psychological Reevaluation and Testing. (AR 295-309.) 4 reaffirmed the same limitations he had found in December of 2006. (AR 5 308.) 6 On the same date, Dr. Blankenship conducted the aforementioned He essentially It is noted that there are supplemental treatment notes from 7 March 2008 through January 2009. (AR 311-324.) Dr. Blankenship 8 completed a third questionnaire, entitled “Mental Work Restriction 9 Questionnaire,” which provided for mostly marked limitations in mental 10 work activities, as of January 22, 2009. (AR 318-319.) 11 “marked” as a seriously limited ability to function in the work 12 environment. 13 decision, but was submitted to the Appeals Council (AR 4-8), which 14 gave 15 Blankenship’s treatment records, which the Appeals Council interpreted 16 as documenting steady improvement in Plaintiff’s mental condition. By 17 September 23, 2008, the Appeals Council noted, Plaintiff “was doing 18 well adjusting to her independent living status, was isolating less 19 ... was calm and pleasant and her appearance was good; ... (AR 5-6.) 20 The Court’s review of these treatment notes indicates that they 21 contain, 22 descriptions of Plaintiff’s mental health recovery. 23 addition to the other mental health evidence, will receive careful 24 scrutiny on remand. it (AR 320.) “little in This weight” addition, information because substantial it post-dated was cautionary He defined the unsupported and less by ALJ’s Dr. sanguine These notes, in 25 The only other examining report of a mental status nature 26 contained in the Administrative Record is a complete psychiatric CE 27 performed on December 9, 2006 at the request of the Department of 28 Social Services by Dr. Aguilar, a Board-eligible psychiatrist. (AR 5 1 224-227.) This report reflects that only a brief mental status 2 examination was performed, with no other testing of any kind. 3 Aguilar made a diagnosis on Axis I of post-traumatic stress disorder. 4 (AR 226.)2 Dr. 5 The Medical Expert, Dr. Peterson, testified at the hearing.3 6 Peterson had reviewed medical records, up to December of 2006. (AR 7 36.) 8 19, 2008 report. (Id.) 9 unexplained Dr. At the hearing, he was provided with Dr. Blankenship’s February deterioration In Dr. Peterson’s opinion, there was an in Plaintiff’s condition between Dr. 10 Blankenship’s 2006 report, and his 2008 report. (See AR at 37, 41, 42, 11 43, 46, 48.) In Dr. Peterson’s view, comparing Dr. Blankenship’s 2006 12 and 2008 reports, “suddenly everything is markedly impaired –-.” (AR 13 37.) 14 ... understanding ... between the beginning of ‘07 to now what, what 15 happened?” (Id.) 16 Dr. Peterson’s testimony, and Plaintiff herself was examined. 17 than briefly testifying that she had no recollection that she told any 18 of her treating doctors that she felt better, she was not asked 19 anything which would tend to provide an answer to Dr. Peterson’s 20 question. (See AR at 37-38.) Dr. Peterson indicated, sensibly, that he needed “a little help At that point in the hearing, a break was taken from Other 21 Dr. Peterson indicated that Dr. Blankenship’s remarks are not 22 consistent with the remainder of the record, although he did not 23 identify exactly what parts of the record are inconsistent. Moreover, 24 2 25 26 At the hearing, Plaintiff testified that she recalled spending about five minutes in Dr. Aguilar’s office “and she talked so fast that I hardly didn’t understand what she was saying.” (AR 40.) 3 27 28 While the face page of the transcript identifies the medical expert as “David Peterson, M.D. (AR 31), Dr. Peterson’s curriculum vitae indicates that he is a licensed psychologist with a Ph.D. (AR 74-78.) 6 1 he stated that reviewing all of Dr. Blankenship’s records, Plaintiff’s 2 functioning “varies over time ... within the Blankenship record ...” 3 (AR 39.) 4 Dr. Peterson’s principal complaint was that there was a lack of 5 “objective testing” to support Dr. Blankenship’s conclusions. (See, 6 e.g., AR 41, 43-44.) 7 various tests performed by Dr. Blankenship are simply “screens.” (AR 8 43.)4 In particular, Dr. Peterson testified that the 9 When Dr. Peterson was questioned by Plaintiff’s attorney, he was 10 asked whether or not Dr. Blankenship’s initial assessment did not in 11 fact contain “severe” findings [as to mental functioning]. (AR 49.) 12 Dr. Peterson responded that “it wasn’t all marked as it is here ...” 13 (Id.)5 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 The tests to which Dr. Peterson referred in his testimony are those set forth in Dr. Blankenship’s report of December 19, 2005 (at AR 199, et seq. and in his February 19, 2008 report, at AR 300). 5 Although Dr. Peterson did not specifically indicate what data of Dr. Blankenship’s he was referencing, it might appear logical to conclude that Dr. Peterson was comparing Dr. Blankenship’s October 31, 2006 Work Function Impairment Rating (AR 263) with Dr. Blankenship’s Mental Residual Functional Capacity Questionnaire of February 19, 2008 (AR 279-283). While the Court would note (see infra for further discussion) that Dr. Blankenship typically recorded “slight” to “moderate” impairments in his October 31, 2006 evaluation, while in 2008, Dr. Blankenship noted mostly “marked” to “extreme” limitations, some of the difference may, as Plaintiff’s counsel suggests, be due to definitional differences. For example, in 2006, Dr. Blankenship defined “moderate” as a “marked impairment” (AR 262), while in 2008, the term “marked” was defined as a serious limitation with substantial loss in the ability to effectively function. (AR 282.) Moreover, the scale of terms in 2006 went from slight to moderate to severe, without any provision for a notation of a marked limitation, while in 2008, the scale went from mild to moderate to marked to extreme. As the Court has noted, in 2006, Dr. Blankenship utilized workers’ compensation terminology. In 2008, he utilized definitions applicable in Social Security evaluation. None of these definitional differences, however, were discussed or accounted for by (continued...) 7 1 After the hearing, the ALJ, on April 28, 2008, wrote to Dr. 2 Peterson, enclosing additional medical evidence, including Dr. 3 Blankenship’s February 19, 2008 reports (Dr. Peterson had seen some of 4 this information at the hearing, as noted), and on May 30, 2008, Dr. 5 Peterson responded to the ALJ. (AR 310.) 6 following indication: Dr. Peterson now made the 7 “The new evidence provides clarity as to the duration 8 of impairment reported in Dr. Blankenship’s checklist dated 9 2/19/08. [Exhibit] 10 F/3. [See AR 295-309.] Of the same 10 date, notes ‘resurfaced’ symptoms, which may explain the 11 sudden 12 However, we have no longitudinal data to support this level 13 of severity ... 14 treatment and lack of contact with Dr. Blankenship from 15 10/31/06 to 2/19/08, combined medication and talk-therapy 16 should improve functioning within the next six months.” 17 change in severity as noted in the checklist. Given the history of previously successful (AR 310.) 18 19 Dr. Peterson’s view of Dr. Blankenship’s conclusions as to 20 Plaintiff’s mental functional abilities on February 19, 2008 was that 21 “the levels of severity were a remarkable departure from the rest of 22 the record. 23 support this remarkable change.” (Id.) Treating records were requested to find evidence to 24 25 5 26 27 28 (...continued) Dr. Peterson during his testimony at the hearing. Rather, Dr. Peterson simply interpreted the 2008 findings by Dr. Blankenship as indicating an unexplained deterioration in Plaintiff’s functioning which, according to Dr. Peterson, contradicted the balance of the medical records. For reasons discussed infra, the Court disagrees. 8 1 A. 2 The ALJ’s decision rejected Dr. Blankenship’s conclusions in a 3 somewhat perfunctory fashion: “No objective test results or diagnostic 4 studies were used by Dr. Blankenship to establish the increase in 5 symptoms that he noted [in February 2008].” (AR 23.) 6 cited the December 9, 2006 report of the psychiatric CE, Dr. Aguilar 7 (AR 21), and Dr. Musher’s December 5, 2006 report. (Id.) 8 stating, generally, that “great weight is given to the treating source 9 opinions and to the opinion of the medical expert at the hearing” (AR 10 24), the ALJ made no specific findings as to the reports of Dr. 11 Aguilar or Dr. Musher, and other than noting his conclusion (in 12 agreement with the ME) that Dr. Blankenship’s findings were not 13 supported by any objective test results or diagnostic studies, the 14 decision is unclear as to whether or not the ALJ gave any credibility 15 whatsoever to Dr. Blankenship. 16 for the Court to accord any credibility to the ALJ’s conclusions. 17 Certainly, on remand, there must be an objective analysis of Dr. 18 Blankenship’s conclusions with regard to Plaintiff’s mental functional 19 limitations, in particular, factoring in the different definitional 20 standards which were used in his different reports. It appears to the 21 Court very likely that Dr. Blankenship’s conclusions between 2006 and 22 2008 23 difference may lie in the different definitional terms used. 24 Blankenship should be contacted to explain whether there is, in fact, 25 such a discrepancy. 26 of the psychiatrist, Dr. Musher, who examined Plaintiff in 2006, and 27 who 28 conclusions. It is also very critical that a determination be made as may Analysis. not agreed be with significantly The ALJ also Although All of this makes it very difficult different; rather, any perceived Dr. Moreover, the ALJ failed to address the findings Dr. Blankenship’s 9 mental functional limitation 1 to whether Dr. Blankenship did perform “objective” tests. 2 Peterson felt that this was not the case, the Court is unaware of any 3 greater 4 Blankenship. 5 Court has noted in this Opinion, Dr. Blankenship asserted that several 6 of the tests he performed are, in fact, of an objective nature. 7 Further, 8 components. 9 subjective self-reporting, then much more needs to be explained to 10 11 expertise of Dr. Peterson over and above While Dr. that Both are psychologists who have earned Ph.D.s. many of the tests appear to have built-in of Dr. As the validity If this amounts to nothing more than reliance upon reach that conclusion. The Court is, further, concerned with what would appear to be a 12 double standard in terms of accepting or rejecting Plaintiff’s 13 subjective self-reporting in this case. 14 have reported that she was at times feeling better or doing better, in 15 general terms, this was seemingly accepted by the ALJ, as it was by 16 the ME. 17 doing well, this was rejected by the ALJ pursuant to a depreciated 18 credibility finding. (See 19 evaluation are not reconciled in the ALJ’s decision. Either Plaintiff 20 is credible, or she is not credible. That is, when Plaintiff may On the other hand, when Plaintiff stated that she was not AR at 23.) These inconsistencies in 21 Finally, in addition to further developing the record as the 22 Court has indicated, on remand, the ALJ should take every opportunity 23 to determine what, if any, treatment Plaintiff received during the 24 apparent “gap” period of 2007.6 25 treatment is as significant as Dr. Peterson claims, an attempt should If this apparent or possible lack of 26 6 27 28 For example, Dr. Blankenship’s treatment notes for 2008 (AR 311-317) make reference to apparent treatment by Dr. Musher, and the administration by him of medications. Did this begin in 2008? 2007? 2006? 10 1 be made to resolve this hanging question. 2 Because this matter will be remanded as to Issue No. 1, Issue No. 3 2, concerning the ALJ’s rejection of Plaintiff’s testimony, need not 4 be extensively discussed, because Plaintiff’s testimony, and her 5 credibility, will be reevaluated de novo on remand. 6 note, however, that the reasons cited in the ALJ’s decision are wholly 7 insufficient. 8 “The [Plaintiff’s] hearing allegations were not credible or consistent 9 with the The Court will At first, the ALJ makes the conclusory statement that, credible medical evidence.” (AR 23.) This is a 10 generalization which is routinely rejected by Courts, both at the 11 trial and appellate levels. The Court need not cite basic concepts of 12 credibility 13 apparently relied upon a conclusion that Plaintiff does not suffer 14 adverse side effects to medications she has taken for her mental 15 condition. This does not constitute a basis for a credibility 16 assessment. Finally, the ALJ comments that Plaintiff continues to 17 “enjoy” a normal level of activities of daily living, such as meal 18 preparation, 19 transportation, and interacting with family and friends and performing 20 household chores. (Id.) 21 Court has not evaluated), it would not appear to be a basis for a 22 credibility assessment. 23 mental functional limitations. A person can take a bus and still have 24 such limitations. 25 be properly and correctly evaluated on remand. 26 27 28 assessment and to make maintaining this point. personal Further, hygiene, using the ALJ public Even if, in fact, this is correct (which the A person can brush her teeth and still have The point is clear. Plaintiff’s credibility will For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 11 1 2 3 DATED: September 2, 2010 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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