Valerie Torres v. Michael J. Astrue, No. 2:2010cv05904 - Document 19 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. Based on the foregoing, IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. [See attached order for further details.] (es)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 VALERIE TORRES, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 17 Defendant. ) Case No. CV 10-5904 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION AND SUMMARY 21 On August 12, 2010, plaintiff Valerie Torres ( Plaintiff ) filed a complaint 22 against defendant Michael J. Astrue ( Defendant ), the Commissioner of the Social 23 Security Administration, seeking review of a denial of disability insurance benefits 24 ( DIB ) and supplemental security income benefits ( SSI ). [Docket No. 3.] On March 10, 2011, Defendant filed his answer, along with a certified copy of 25 26 the administrative record. [Docket Nos. 9-13.] In sum, having carefully studied, inter alia, the parties joint stipulation and 27 28 the administrative record, the Court concludes that, as detailed below, the 1 Administrative Law Judge ( ALJ ) improperly evaluated the opinion of Plaintiff s 2 treating physician. The Court thus remands this matter to the Commissioner in 3 accordance with the principles and instructions enunciated in this Memorandum 4 Opinion and Order. 5 II. 6 PERTINENT FACTUAL AND PROCEDURAL BACKGROUND Plaintiff, who was 44 years old on the date of her most recent administrative 7 8 hearing, has completed high school and some college. (See Administrative Record 9 ( AR ) at 31, 37, 112, 144, 337.) On January 18, 2007, Plaintiff filed for DIB and SSI, alleging that she has 10 11 been disabled since June 1, 2005 due to depression, anxiety, swelling of limbs, 12 fatigue, trouble sleeping, and lack of concentration. (See AR at 60, 112, 120, 134, 13 139.) On April 1, 2008, Plaintiff, represented by counsel, appeared and testified at a 14 15 hearing before an ALJ. (See AR at 31-57.) The ALJ also heard testimony from 16 Sandra Schneider, a vocational expert ( VE ). (Id.) On May 8, 2008, the ALJ denied Plaintiff s request for benefits. (AR at 12- 17 18 22.) Applying the well-known five-step sequential evaluation process, the ALJ 19 found, at step one, that Plaintiff has not engaged in substantial gainful activity since 20 her alleged onset date. (Id. at 15.) At step two, the ALJ found that Plaintiff suffers from severe mental 21 22 depression. (AR at 16 (emphasis omitted).) At step three, the ALJ determined that the evidence did not demonstrate that 23 24 Plaintiff s impairment, either individually or in combination, met or medically 25 equaled the severity of any listing set forth in the Social Security regulations.1/ (AR 26 at 19.) 27 28 1/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 2 The ALJ then assessed Plaintiff s residual functional capacity2/ ( RFC ) and 1 2 determined that she has a moderate limitation on her ability to maintain 3 concentration and attendance. (AR at 20 (emphasis omitted).) 4 The ALJ found, at step four, that Plaintiff retained the ability to perform her 5 past relevant work as a general office worker. (AR at 21.) Thus, the ALJ concluded 6 that Plaintiff was not suffering from a disability as defined by the Act. (Id. at 22.) 7 Plaintiff filed a timely request for review of the ALJ s decision, which was 8 denied by the Appeals Council. (AR at 1-3, 8.) The ALJ s decision stands as the 9 final decision of the Commissioner. 10 III. 11 STANDARD OF REVIEW This Court is empowered to review decisions by the Commissioner to deny 12 13 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 14 Administration must be upheld if they are free of legal error and supported by 15 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as 16 amended Dec. 21, 2001). If the court, however, determines that the ALJ s findings 17 are based on legal error or are not supported by substantial evidence in the record, 18 the court may reject the findings and set aside the decision to deny benefits. 19 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 20 242 F.3d 1144, 1147 (9th Cir. 2001). Substantial evidence is more than a mere scintilla, but less than a 21 22 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 23 24 2/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n. 5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s 27 residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n. 2 (9th 28 Cir. 2007). 3 1 evidence which a reasonable person might accept as adequate to support a 2 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 3 at 459. To determine whether substantial evidence supports the ALJ s finding, the 4 reviewing court must review the administrative record as a whole, weighing both 5 the evidence that supports and the evidence that detracts from the ALJ s 6 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 7 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 8 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 9 evidence can reasonably support either affirming or reversing the ALJ s decision, 10 the reviewing court may not substitute its judgment for that of the ALJ. Id. 11 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 12 IV. 13 ISSUES PRESENTED 14 Four disputed issues are presented for decision here: 15 1. whether the ALJ properly evaluated Plaintiff s mental impairments, as 16 substantiated by the opinion of Plaintiff s treating psychiatrist, (see Joint Stip. at 517 15, 21-22); 18 2. whether the ALJ properly assessed Plaintiff s credibility, (id. at 22-25, 19 28-30); 20 3. whether the ALJ properly determined Plaintiff could perform her past 21 relevant work, (id. at 30-32, 34-35); and 22 4. whether the ALJ properly relied on the VE s testimony when he posed 23 an incomplete hypothetical. (Id. at 35-37, 38-39.) 24 Under the circumstances here, the Court finds the issue of the ALJ s 25 evaluation of Plaintiff s mental impairments to be dispositive of this matter, and 26 does not reach the remaining issues. 27 / / / 28 / / / 4 1 V. 2 DISCUSSION AND ANALYSIS 3 A. Evaluation of the Medical Evidence 4 Plaintiff argues that the ALJ shows total . . . disregard for the report and 5 opinion of the treating psychiatrist [Hla Hla Yee, M.D. ( Dr. Yee ).] (Joint Stip. at 6 6.) Plaintiff contends that the ALJ fails to give any valid reason for rejecting Dr. 7 Yee s reports or for failing to discuss the records from the Roybal Mental Health 8 Clinic. (Id. at 8.) 9 1. The ALJ Must Provide Specific and Legitimate Reasons 10 Supported by Substantial Evidence to Reject a Treating 11 Physician s Opinion 12 In evaluating medical opinions, Ninth Circuit case law and Social Security 13 regulations distinguish among the opinions of three types of physicians: 14 (1) those who treat the claimant (treating physicians); 15 (2) those who examine but do not treat the claimant (examining physicians); 16 and 17 (3) those who neither examine nor treat the claimant (non-examining 18 physicians). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995, as amended April 9, 19 1996); see also 20 C.F.R. §§ 404.1527(d) & 416.927(d) (prescribing the respective 20 weight to be given the opinion of treating sources and examining sources). 21 As a general rule, more weight should be given to the opinion of a treating 22 source than to the opinion of doctors who do not treat the claimant. Lester, 81 F.3d 23 at 830; accord Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1036 (9th Cir. 24 2003). This is so because a treating physician is employed to cure and has a greater 25 opportunity to know and observe the patient as an individual. Sprague v. Bowen, 26 812 F.2d 1226, 1230 (9th Cir. 1987). 27 Where the treating physician s opinion is not contradicted by another doctor, 28 it may be rejected only for clear and convincing reasons. Benton, 331 F.3d at 5 1 1036; see also Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) ( While the 2 ALJ may disregard the opinion of a treating physician, whether or not controverted, 3 the ALJ may reject an uncontroverted opinion of a treating physician only for clear 4 and convincing reasons. ) (italics in original). 5 Even if the treating doctor s opinion is contradicted by another doctor, the 6 [ALJ] may not reject this opinion without providing specific and legitimate reasons 7 supported by substantial evidence in the record[.] Lester, 81 F.3d at 830 (internal 8 quotation marks and citation omitted); accord Reddick, 157 F.3d at 725. 9 The ALJ can meet the requisite specific and legitimate standard by setting 10 out a detailed and thorough summary of the facts and conflicting clinical evidence, 11 stating his interpretation thereof, and making findings. Magallanes v. Bowen, 881 12 F.2d 747, 751 (9th Cir. 1989) (internal quotation marks and citation omitted). 13 2. The ALJ Improperly Evaluated Dr. Yee s opinion Having carefully reviewed the record and the joint stipulation, the Court is 14 15 persuaded that the ALJ s assessment of Dr. Yee s opinion regarding Plaintiff s 16 mental impairments is not legally sufficient and/or supported by substantial 17 evidence. Six reasons guide this Court s determination. First, the ALJ s conclusion that Dr. Yee s opinion is unsupported by her own 18 19 treatment notes is belied by the record. (AR at 18.) Plaintiff received mental health 20 treatment from Dr. Yee at the Roybal Family Mental Health Center through the Los 21 Angeles County Department of Mental Health for over a year from January 29, 2007 22 until at least February 11, 2008. (See id. at 257-64 (mental impairment 23 questionnaire completed on February 11, 2008 by Dr. Yee).) Dr. Yee s opinion was 24 based on her treatment of Plaintiff and the opinion of her treatment team, e.g., 25 therapist Rosa Torres, A.C.S.W., who Plaintiff saw approximately once a week.3/ 26 27 3/ Although the Court declines to address the ALJ s assessment of Plaintiff s 28 credibility, to the extent the ALJ discounted Plaintiff s credibility based on the fact 6 1 (See id. at 41-42 (Plaintiff s testimony that she receives treatment from Dr. Yee and 2 separate one-on-one therapy approximately every week or every other week, and 3 attends group therapy).) 4 Throughout Dr. Yee s treatment notes, she recorded the amount of time spent 5 with Plaintiff during each session, which varied from twenty minutes to over an 6 hour, (see, e.g., AR at 266, 273), and made detailed notations of her assessment. For 7 instance, on November 5, 2007, Dr. Yee reported that Plaintiff is easily irritable, 8 angry, more isolat[ed], lacked motivation to do things, has poor personal hygiene, 9 is tearful and preoccupied with her life stressors. (Id. at 273.) Dr. Yee found 10 Plaintiff s insight and judgment to be limited. (Id.) Further, Dr. Yee repeatedly 11 diagnosed Plaintiff with bipolar disorder and anxiety disorder, not otherwise 12 specified. (See, e.g., id. at 262, 265, 266, 268, 271, 274.) On February 11, 2008, Dr. 13 Yee prescribed Plaintiff with Geodon, Celexa, and Temazepam, and discontinued 14 Plaintiff s prescription of Depakote after she suffered negative side effects from it.4/ 15 (See id. at 265, 273.) Thus, the Court finds that Dr. Yee s treatment notes amply 16 support her opinion. See Lester, 81 F.3d at 833 ( The treating physician s 17 continuing relationship with the claimant makes him especially qualified to evaluate 18 19 that after seeing Dr. Yee in January 2007, she had gaps in treatment, suggest[ing] 20 that her symptoms and limitations were not as serious as has been alleged, (AR at 20), the Court notes that the record indicates Plaintiff reported delays in getting 21 transportation money from [Los Angeles County welfare services] and could not 22 attend treatment for herself because of her son s treatment and appointments. (Id. at 326, 338); see also Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (claimant s 23 failure to seek treatment due to inability to pay cannot support an adverse credibility 24 termination). 25 4/ Geodon is an antipsychotic medication that is used to treat schizophrenia and 26 the manic symptoms of bipolar disorder. www.drugs.com. Celexa is an antidepressant used to treat depression. Id. Temazepam is used to treat insomnia 27 symptoms. Id. Depakote is used to treat various types of seizure disorders and is 28 also used to treat the manic phase of bipolar disorders. Id. 7 1 reports from examining doctors, to integrate the medical information they provide, 2 and to form an overall conclusion as to functional capacities and limitations, as well 3 as to prescribe or approve the overall course of treatment. ). 4 Second, the ALJ erred in rejecting Dr. Yee s opinion because the evidence 5 clearly shows that [Plaintiff s] problem, as she herself admitted, is mainly due to her 6 being the primary caretaker for her son, taking care of her household without 7 assistance from others and having financial issues. (AR at 18.) While Dr. Yee 8 noted Plaintiff s many stressors in her treatment notes, e.g., Plaintiff being a 9 single mother of two kids, having financial problem[s] and living in a motel, Dr. 10 Yee still diagnosed Plaintiff with bipolar disorder and anxiety disorder. (Id. at 262, 11 273, 275; see also id. at 338 (therapist treatment note reporting that during session 12 Plaintiff vent[ed] about struggles as a single parent dealing with son s [treatment] 13 and finding out he has ADHD and Asperger s Disorder ).) The Court fails to see 14 how Plaintiff s life difficulties preclude a diagnosis of a clinical mental condition 15 and resulting limitations here. 16 Accordingly, the ALJ has, in effect, improperly substituted his own 17 interpretation of the evidence without setting forth sufficient authority or medical 18 evidence to support his interpretation. See Tackett v. Apfel, 180 F.3d 1094, 1102-03 19 (9th Cir. 1999) (ALJ may not substitute his own interpretation of the medical 20 evidence for the opinion of medical professionals); Banks v. Barnhart, 434 F. Supp. 21 2d 800, 805 (C.D. Cal. 2006) ( An ALJ cannot arbitrarily substitute his own 22 judgment for competent medical opinion, and he must not succumb to the temptation 23 to play doctor and make his own independent medical findings. ) (internal quotation 24 marks, alterations and citations omitted). 25 Third and similarly, the Court finds that the ALJ s rejection of Dr. Yee s 26 opinion based on Plaintiff s interest in applying for work is not a specific and 27 legitimate reason. (AR at 18); see also Napier v. Astrue, 2009 WL 2058436, at *9 28 (E.D. Cal. 2009) ( Plaintiff s brief return to his former work, his search for work, 8 1 and his willingness to be retrained reflect his desire to work but do not detract from 2 his credibility regarding the intensity, persistence, and limiting effects of his 3 symptoms. ). 4 Fourth, the ALJ presents no evidence to support his skepticism of Dr. Yee s 5 credibility and this skepticism flies in the face of clear circuit precedent. (AR at 6 18-19 ( The possibility always exists that a doctor may express an opinion in an 7 effort to assist a patient with whom he or she sympathizes for one reason or another. 8 . . . While it is difficult to confirm the presence of such motives, they are more likely 9 in situations such as this one where the opinion in question departs substantially 10 from the rest of the evidence of record. )); Reddick, 157 F.3d at 726 ( This 11 skepticism of a treating physician s credibility flies in the face of clear circuit 12 precedent. ); see also Lester, 81 F.3d at 832 (holding that an ALJ may not assume 13 that doctors routinely lie in order to help patients collect disability benefits ) 14 (internal quotation marks and citation omitted). 15 Fifth, the ALJ s adoption of the opinion of non-examining and non-treating 16 physician C.H. Dudley, M.D. ( Dr. Dudley ), standing alone, does not constitute 17 substantial evidence here. (AR at 19 (ALJ adopting Dr. Dudley s opinion), see id. 18 at 238-240 (Mental Residual Functional Capacity Assessment check-box form 19 completed by Dr. Dudley on April 4, 2007)); Lester, 81 F.3d at 832 ( In the absence 20 of record evidence to support it, the nonexamining medical advisor s testimony does 21 not by itself constitute substantial evidence that warrants a rejection of . . . the 22 examining [physician] s opinion. ); Erickson v. Shalala, 9 F.3d 813, 818 n. 7 (9th 23 Cir. 1993) ( the non-examining physicians conclusion, with nothing more, does not 24 constitute substantial evidence[] ) (internal quotation marks, brackets and citation 25 omitted) (italics in original); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984) 26 (when the non-treating, non-examining physician s opinion conflicts with the 27 conclusions of examining physicians, that conclusion does not constitute substantial 28 evidence). 9 1 Sixth, Defendant cites to the opinions of evaluating psychiatrist Norma R. 2 Aguilar, M.D. ( Dr. Aguilar ) and evaluating physician Gabriel T. Fabella, M.D. 3 ( Dr. Fabella ) as a basis for the ALJ s rejection of Dr. Yee s opinion. (See Joint 4 Stip. at 18.) The Court s review is limited to the reasons actually cited by the ALJ in 5 his decision, specifically, in assigning no weight to Dr. Yee s opinion. (AR at 19); 6 see Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) ( We review only the reasons 7 provided by the ALJ in the disability determination and may not affirm the ALJ on a 8 ground upon which he did not rely. ). However, the ALJ did not rely on Dr. Aguilar 9 or Dr. Fabella s opinion in rejecting Dr. Yee s opinion. (See generally AR at 1710 19.) 11 In any event, Dr. Fabella performed an internal medicine consultation and did 12 not provide an opinion as to Plaintiff s mental impairments. (See AR at 216-20.) 13 With respect to Dr. Aguilar, she did not review any of Plaintiff s medical records in 14 performing her evaluation and her opinion should be afforded minimal weight. See 15 20 C.F.R. § 416.917 (consultative examiners should be provided with necessary 16 background information regarding the claimant s condition); see Ladue v. Chater, 17 1996 WL 83880, at *5 (N.D. Cal. 1996) (error for an ALJ to afford considerable 18 weight to an examining physician where that physician lack[s] important 19 background information regarding plaintiff ). 20 VI. 21 REMAND IS APPROPRIATE 22 This Court has discretion to remand or reverse and award benefits. McAllister 23 v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989, as amended Oct. 19, 1989). Where no 24 useful purpose would be served by further proceedings, or where the record has been 25 fully developed, it is appropriate to exercise this discretion to direct an immediate 26 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); 27 Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000, as amended May 4, 2000), 28 cert. denied, 531 U.S. 1038 (2000). Where there are outstanding issues that must be 10 1 resolved before a determination can be made, and it is not clear from the record that 2 the ALJ would be required to find plaintiff disabled if all the evidence were properly 3 evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 4 F.3d at 1179-80. 5 Here, remand is required because the ALJ failed to properly evaluate Dr. 6 Yee s opinion. 7 Because the Court concludes that the ALJ erred in assessing Dr. Yee s 8 opinion, it does not reach Plaintiff s remaining contentions. (See Joint Stip. at 229 25, 28-30, 30-32, 34-35, 35-37, 38-39.) Credibility findings, and whether Plaintiff is 10 capable of performing her past relevant work and whether the ALJ properly relied on 11 the VE s testimony depend on RFC findings, all of which are reviewed in light of 12 the record as a whole. See Hayes v. Astrue, 270 Fed.Appx. 502, 505 (9th Cir. 2008); 13 Struck v. Astrue, 247 Fed.Appx. 84, 86-87 (9th Cir. 2007). The ALJ shall reassess 14 the medical opinions in the record and provide sufficient reasons under the 15 applicable legal standard for rejecting any portion of the medical opinions. 16 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 17 REVERSING the decision of the Commissioner denying benefits and 18 REMANDING the matter for further administrative action consistent with this 19 decision. 20 21 22 Dated: July 6, 2011 /s/ Jay C. Gandhi 23 Hon. Jay C. Gandhi United States Magistrate Judge 24 25 26 27 28 11

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