Jonathan Flagg v. Michael J. Astrue, No. 2:2010cv06737 - Document 13 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, The Court concludes that the ALJs evaluation of all of the psychiatric and psychological evidence insufficient to perform an adequate analysis and to reach conclusions at Step Four an d Step Five of the sequential evaluation process. On remand, the ALJ must evaluate the psychiatric and psychological evidence and give proper reasons to substantiate the conclusions to be drawn as to Plaintiffs MRFC. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 JONATHAN FLAGG, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-06737-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. Pursuant to 28 U.S.C. §636(c), the parties have 21 consented that the case may be handled by the Magistrate Judge. The 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. The parties have filed the 25 Joint Stipulation ( JS ), and the Commissioner has filed the certified 26 AR. 27 This Memorandum Opinion will constitute the Court s findings of 28 fact and conclusions of law. After reviewing the matter, the Court 1 concludes that for the reasons set forth, the decision 2 of the Commissioner must be reversed and the matter remanded. 3 4 I 5 BACKGROUND 6 Plaintiff Jonathan Flagg ( Plaintiff ) filed an application for 7 Disability Insurance Benefits on October 10, 2006. He alleged an onset 8 date of September 28, 2006, and claimed disability due to Asperger s 9 syndrome, sleep apnea, and stress(AR 159, 174). The Social Security 10 Administration ( SSA ) denied Plaintiff s application on initial 11 review (AR 89), and he requested a hearing before an Administrative 12 Law Judge ( ALJ ) (AR 94). The first two hearings occurred before ALJ 13 Kevin M. McCormick on February 21, 2008 (AR 25-35) and May 7, 2008 (AR 14 36-48). No testimony was taken (AR 26; 37) and the ALJ continued both 15 hearings in order to give Plaintiff additional time to retain an 16 attorney (See AR 29, 39). The final hearing on record occurred before 17 ALJ John Moreen on September 10, 2008 (AR 49), and was attended by 18 Plaintiff, along with his counsel (AR 51). The ALJ took testimony from 19 a medical expert ( ME ), Dr. Glenn Griffin (AR 67-78; See 128-134), a 20 vocational expert ( VE ) (AR 82-86), and Plaintiff testified on his 21 own behalf (AR 52-66; 79-82). 22 On November 5, 2008, the ALJ issued a decision finding that 23 Plaintiff was not disabled (AR 17-23). On July 16, 2010, the Appeals 24 Council declined Plaintiff s request for administrative review (AR 1- 25 4), and thus the ALJ s decision became the final decision of the 26 Commissioner, subject to this judicial review. 27 Plaintiff raises the following issues: 28 1. Whether the ALJ erred in rejecting the mental functional 2 1 limitations assessed by treating psychiatrist Dr. Feinfeld and 2 examining psychologist Dr. Townsend; and 3 2. Whether the ALJ erred in purporting to adopt the testimony of 4 the medical expert while actually rejecting significant portions 5 of that testimony without explanation. 6 (JS at 6-7.) 7 8 In response, the Commissioner argues that the ALJ in fact 9 properly rejected the opinion of the treating psychiatrist, Dr. 10 Feinfeld, and examining consultant, Dr. Townsend, and, further, argues 11 that substantial evidence supports the ALJ s opinion. 12 13 A. History Of Plaintiff s Impairments And Treatment. 14 Plaintiff was 45 years old when he claimed that he became unable 15 to work as a result of his disabling conditions in 2006 (AR 174). 16 Plaintiff graduated from college in 1984 (AR 181). From 1988 to 2006, 17 the SSA employed Plaintiff first as a Benefits Authorizer and then as 18 a Claims Representative ( CR ) (AR 221, 237). In 2006, Plaintiff was 19 dismissed 20 Plaintiff s dismissal, he worked in a grocery store for three weeks 21 (AR 55-56). Plaintiff believes he was dismissed from that position 22 because he violated the personal space of other co-workers (AR 56). from his employment with the SSA (AR 221-44). Since 23 On December 15, 2003, Dr. Feinfeld, a psychiatrist at Kaiser 24 Permanente s Department of Behavioral Health Care, diagnosed Plaintiff 25 with Asperger s syndrome and Acute Stress Disorder as a result of his 26 work related stress (AR 174, 271), and commenced his treatment for 27 these conditions in 2003 (AR 270-71, 274, 275, 280, 283, 285-86, 287, 28 290, 295, 297, 298, 299, 302, 494, 495, 498, 503). She continued to 3 1 treat Plaintiff until 2008. Dr. Feinfeld prescribed Fluoxetine 2 (Prozac) as an anti-depressant and to reduce Plaintiff s anxiety (AR 3 179). She diagnosed Plaintiff with sleep apnea syndrome, hypertension, 4 and chronic edema (AR 271) based on the diagnosis and treatment of Dr. 5 Silverstein (AR 320), an internist at Kaiser Permanente s Department 6 of Internal Medicine in Panorama City, who commenced his treatment for 7 those conditions in 1996 (AR 177; 787). 8 During the course of Plaintiff s treatment, Dr. Feinfeld assessed 9 various mental functional limitations in her evaluations, progress 10 notes and letters. 11 December 2003 revealed that Plaintiff had a great deal of difficulty 12 expressing himself , stuttered and answered questions slowly despite 13 having very concrete thought processes, and that he suffered from 14 work-related anxiety (AR 271). Based on this examination, Dr. Feinfeld 15 diagnosed Plaintiff with Asperger s syndrome, Acute Stress Disorder 16 based on work-related stress, mild Obsessive Compulsive Disorder, 17 somewhat impaired social skills , and assessed Plaintiff s Global 18 Assessment of Functioning ( GAF ) at 65 (AR 271); Dr. Feinfeld re- 19 affirmed 20 Disorder in subsequent progress notes after Plaintiff s visits in 21 January, February, and April 2004 while noting in January that 22 [Plaintiff seemed] more relaxed ... [was] able to smile and joke [] 23 more, and that [Plaintiff felt] that the Prozac [prescription] was 24 definitely helping him [to relax]. (AR 274; 275; 283); Dr. Feinfeld s 25 letter dated September 2004 assessed that Plaintiff could function 26 well in the workplace with a more rigid work schedule and other 27 accommodations 28 functioning, such as his difficulty with transition and making sudden her Dr. diagnosis despite Feinfeld s of mental Asperger s substantial 4 status syndrome examination and limitations Acute in his in Stress daily 1 changes to his 2 personal grooming and appearance, and difficulty [interpreting] 3 social cues. (AR 285-86); Dr. Feinfeld affirmed her diagnosis in 4 progress notes and evaluations after Plaintiff s regular visits from 5 October 2004 through October 2006 (AR 287, 290, 292, 295, 297, 298, 6 299, 300, 302). However, she did not see Plaintiff again until 7 November 8 appropriate modifications for Asperger s in a letter of the same 9 date (AR 494; 498); Dr. Feinfeld noted in a letter dated February 2008 10 that Plaintiff could not function in situations requiring face to 11 face interactions (AR 495); Dr. Feinfeld noted in a letter dated 12 March 2008 that Plaintiff was unable to work for the next year, if 13 ever explaining that his Asperger s syndrome and anxiety conditions 14 were deteriorating, which impaired his [performance of] functions 15 [requiring] mental activity, such as calculations and impaired his 16 participation in interpersonal interaction and communication. (AR 17 503) 2007 daily when routine , she opined his difficulty that Plaintiff with could maintaining work with 18 Dr. Sean To, an internist retained by the Commissioner as an 19 examining consultant, conducted an Independent Internal Medicine 20 Evaluation 21 functional limitations as a result of his sleep apnea, chronic edema, 22 and obesity (AR 462-67). Insofar as Plaintiff s mental impairments are 23 concerned, Dr. To assessed in his mental status examination that 24 Plaintiff 25 Plaintiff s 26 Plaintiff was able to describe his medical history adequately , and 27 noted that Plaintiff appeared to be in no acute distress. (AR 463) 28 Dr. of Plaintiff appeared memory Jeannette in 2007 appropriately appeared K. March ... Townsend, assessed oriented average a 5 and on psychologist Plaintiff s explaining the that grounds retained by that the 1 Commissioner, 2 psychological evaluation in March 2007 (AR 468-72). 3 diagnosed 4 resulting from Plaintiff s unemployment, and assessed his GAF at 60 5 (AR 6 repetitive task[s] and complete a full day s work without interruption 7 from psychiatric symptoms and [is able to] understand, remember and 8 carry out simple, detailed and complex tasks. (AR 472) She also 9 indicated that Plaintiff s manner of relating is slightly odd. (AR 10 472) Based on Plaintiff s performance on five tests administered 11 during the evaluation, she assessed Plaintiff s mood and affect as 12 appropriate ... [with] no emotional lability or agitation , his 13 thinking 14 intermediate memory for daily activities and remote memory for 15 details of his personal history as adequate , his insight as fair , 16 and assessed that his intellectual functioning was within the average 17 range. (AR 469-70 18 assessed Plaintiff 472). as She with concluded organized , Plaintiff s Asperger s that his mental syndrome Plaintiff immediate limitations by could memory a Dr. Townsend history, perform as in stress simple fair , his Dr. Frank L. Williams, a State agency consultant (AR 475-88), 19 assessed Plaintiff s mental functional 20 Townsend s evaluation on a scale which correlates well with the levels 21 of impairment utilized in Social Security evaluations (AR 486-88; see, 22 infra at 10-14): none, mild, moderate, marked, and extreme (AR 483; 23 486-87). In utilizing this scale, Dr. Williams arrived at levels of 24 mild impairment in the three categories of restriction of activities 25 of daily living , difficulties in maintaining social functioning , 26 difficulties in maintaining concentration, persistence, or pace , and 27 assessed that there was insufficient evidence to support the existence 28 of repeated episodes of decompensation, each of extended duration. 6 limitations based on Dr. 1 (AR 483) Dr. Williams also arrived at levels of moderate impairment 2 in two categories, [t]he ability to understand and remember detailed 3 instructions and [t]he ability to carry out detailed instructions. 4 (AR 5 [Plaintiff] can perform simple repetitive tasks. (AR 488) 486-87) Dr. Williams concluded after his assessment that 6 Dr. Glenn Griffin, a psychologist retained by the Commissioner as 7 a medical expert ( ME ) (AR 67-78), assessed Plaintiff s mental 8 functional limitations during his testimony using the four criteria in 9 paragraph B of the Listing of Impairments: Dr. Griffin arrived at 10 levels of moderate to marked limitations in the category of 11 maintaining social functioning ; mild limitations in the categories 12 of restrictions in activities of daily living and difficulties in 13 maintaining concentration, persistence, or pace , and assessed that 14 there was insufficient evidence to support the existence of repeated 15 episodes of decompensation. (AR 69) 16 Dr. Griffin further assessed marked limitations in Plaintiff s 17 ability to get along with co-workers and peers without distracting 18 them or exhibiting behavioral extremes ; moderate limitations in 19 Plaintiff s ability to maintain attention and concentration for 20 extended periods of time , his ability to work in coordination or 21 proximity with others without being a distraction to them , his 22 ability to complete a normal workday without interruption from 23 psychologically-based 24 socially-appropriate 25 neatness 26 limitations in understanding and remembering. (AR 71) and 27 At the 28 hypothetical symptoms , behavior cleanliness hearing to the (AR VE: and and (AR adhere 71-72); 50-87), I his want 7 ability to basic and the ALJ you to to standards [no] posed assume maintain significant the a of following hypothetical 1 individual with [Plaintiff s] age, education, and background with the 2 following limitations ... they can have only occasional contact with 3 the public, co-workers, and supervisors and they re mildly limited in 4 concentration. Can such an individual do [Plaintiff s] work? (AR 83- 5 84) The vocational expert testified that Plaintiff could perform the 6 job of office clerk based on the ALJ s hypothetical, but could not 7 work as a claims adjudicator. (AR 84) She further testified that her 8 testimony conformed with the Dictionary of Occupational Titles ( DOT ) 9 (AR 84). 10 11 II 12 DISCUSSION 13 THE ALJ S REJECTION OF THE ASSESSMENT OF PLAINTIFF S TREATING 14 PSYCHIATRIST, DR. FEINFELD, AND THE EXAMINING PSYCHOLOGIST, DR. 15 TOWNSEND, ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE 16 In his decision (AR 11-23), the ALJ determined Plaintiff s Mental 17 Residual Functional Capacity (MRFC) as follows: [Plaintiff] can 18 perform work that involves no more than occasionally [sic] contact 19 with supervisors, coworkers and the general public and that he has 20 mild limitations in concentration. (AR 18) In making this assessment, 21 the 22 psychiatrist, Dr. Feinfeld, based on three stated reasons: (1) Dr. 23 Feinfeld s statements that [Plaintiff] is unable to function in social 24 situations requiring face to face interactions and that he is unable 25 to perform functions requiring calculations, interpersonal interaction 26 and communication are not supported by the longitudinal record. ; (2) 27 Dr. Feinfeld s description of [Plaintiff] and his limitations is 28 inconsistent with [Plaintiff s] presentation during the internal ALJ rejected the contrary opinion 8 of Plaintiff s treating 1 medicine 2 performance 3 assessments that [Plaintiff] is disabled and/or unable to work are 4 brief 5 authority of the Commissioner. (AR 18-19) Additionally, the ALJ 6 partially rejected the opinions of the examining psychologist, Dr. 7 Townsend, and the State agency consultant, Dr. Williams, based on one 8 stated reason: I do not accept the opinions of Dr. Townsend and the 9 State Agency consultants that Plaintiff is limited to the performance 10 of simple repetitive tasks without further limitation. Dr. Griffin 11 [the ME] offered a more complete explanation of his opinion, based on 12 a more complete record. Consequently, I accept his opinion over those 13 of the psychological consultant and the State Agency consultants. 14 (AR. 19, exhibit citation omitted.) and and psychological on consultative psychological conclusory ... [Dr. testing. ; Feinfeld s] evaluations, (3) Dr. statements and his Feinfeld s usurp the 15 16 A. 17 A claimant is disabled for the purpose of receiving benefits 18 under the Social Security Act if he is unable to engage in any 19 substantial gainful activity due to an impairment which has lasted, or 20 is expected to last, for a continuous period of at least twelve 21 months. 22 §§404.1505(a), 23 establishing a prima facie case of disability. 24 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); 25 Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). 26 Applicable Law. 42 U.S.C. §§423(d)(1)(A), 416.905(a). The 1382c(a)(3)(A); claimant bears the 20 C.F.R. burden of Roberts v. Shalala, Regulations promulgated by the Commissioner establish a five-step 27 sequential evaluation 28 disability case. process to be followed 20 C.F.R. §§404.1520, 416.920. 9 by the ALJ in a In the First Step, 1 the ALJ must determine whether the claimant is currently engaged in 2 substantial gainful activity; if so, a finding of nondisability is 3 made and the claim is denied. 4 If 5 activity, in the Second Step, the ALJ must determine whether the 6 claimant 7 significantly limiting him from performing basic work activities; if 8 not, a finding of nondisability is made and the claim is denied. 9 C.F.R. §§404.1520(c), (416.920(c). 20 C.F.R. §§404.1520(b), 416.920(b). the claimant is not currently engaged in substantial gainful has a severe impairment or combination of impairments 20 If the claimant has a severe 10 impairment, in the Third Step, the ALJ must compare the impairment to 11 those impairments in the Listing of Impairments ( Listing ), 20 C.F.R. 12 §404, Subpart P, App. 1; if the impairment meets or equals an 13 impairment in the Listing, disability is conclusively presumed and 14 benefits are awarded. 15 claimant s impairment does not meet or equal an impairment in the 16 Listing, in the Fourth Step, the ALJ must determine whether the 17 claimant has sufficient residual functional capacity despite the 18 impairment or various limitations to perform his past work; if so, a 19 finding of nondisability is made and the claim is denied. 20 §§404.1520(e), 416.920(e). 21 perform past relevant work, a prima facie case of disability is 22 established and, in Step Five, the burden shifts to the Commissioner 23 to show the claimant can perform other work that exists in significant 24 numbers in the national economy. 20 C.F.R. §§404.1520(f), 416.920(f). 25 In evaluating mental impairments, 20 C.F.R. §404.1520a(c)(3)(4) 26 and §416.920a(c)(3)(4) mandate that consideration be given, among 27 other 28 functioning; concentration, persistence, or pace; and episodes of things, to 20 C.F.R. §404.1520(d), 416.920(d). When the 20 C.F.R. When the claimant shows an inability to activities of 10 daily living ( ADLs ), social 1 decompensation. These factors are generally analyzed in a Psychiatric 2 Review Technique Form ( PRTF ). 3 sequential evaluation to determine if a claimant is disabled under the 4 Listing; however, the same data must be considered at subsequent steps 5 unless the mental impairment is found to be not severe at Step Two. 6 See SSR 85-16. 7 20 C.F.R. The PRTF is used at Step Three of the §§404.1520a(c)(1) and 416.920a(c)(1) require 8 consideration of all relevant and available clinical signs and 9 laboratory findings, the effects of your symptoms, and how your 10 functioning may be affected by factors including, but not limited to, 11 chronic mental disorders, structured settings, medication and other 12 treatment. 13 14 SSR 85-16 suggests the following as relevant evidence: History, findings, and observations from medical 15 sources (including psychological test results), regarding 16 the presence, frequency, and intensity of hallucinations, 17 delusions or paranoid tendencies; depression or elation; 18 confusion or disorientation; conversion symptoms or phobias; 19 psycho-physiological 20 behavior; anxiety or tension. 21 activities of daily living and work activity, as well as 22 testimony 23 performance and behavior. 24 homes, or similar assistive entities. 25 It is also required under §404.1520a(c)(2) and §416.920a(c)(2) 26 that the ALJ must consider the extent to which the mental impairment 27 interferes with an ability to function independently, appropriately, 28 effectively, and on a sustained basis including such factors as the of third symptoms, parties withdrawn or bizarre Reports of the individual s about the individual s Reports from workshops, group 11 1 quality and level of [] overall functional performance, any episodic 2 limitations 3 require[d]. [and] the amount of supervision or assistance [] 4 Pursuant to the September 2000 amendments to the regulations 5 which modify 20 C.F.R. §404.1520a(e)(2) and §416.920a(e)(2), the ALJ 6 is no longer required to complete and attach a PRTF. 7 regulations identify five discrete categories for the first three of 8 four relevant functional areas: activities of daily living; social 9 functioning; concentration, persistence or pace; and episodes of 10 decomposition. These categories are None, Mild, Moderate, Marked, and 11 Extreme. (§404.1520a(c)(3), (4).) In the decision, the ALJ must 12 incorporate pertinent findings and conclusions based on the PRTF 13 technique. §404.1520a(e)(2) mandates that the ALJ s decision must show 14 the 15 findings, and the functional limitations that were considered in 16 reaching a conclusion about the severity of the mental impairment(s). 17 The decision must include a specific finding as to the degree of 18 limitation in each of the functional areas described in paragraph (c) 19 of this section. significant history, including examination and The revised laboratory 20 The Step Two and Three analyses are intended to determine, first, 21 whether a claimant has a severe mental impairment (Step Two), and if 22 so, whether it meets or equals any of the Listings (Step Three). 23 is also required under §404.1520a(c)(2) and §416.920a(c)(2) that the 24 ALJ must consider the extent to which the mental impairment interferes 25 with 26 effectively, and on a sustained basis including such factors as the 27 quality and level of [] overall functional performance, any episodic 28 limitations an ability [and] to the function amount of 12 independently, supervision or It appropriately, assistance [] 1 require[d]. 2 These findings and conclusions are relevant to the Step Two and 3 Three analysis of whether a claimant has a severe mental impairment, 4 and if so, whether it meets or equals any of the Listings. (See 20 5 C.F.R. Part 4, subpart p, App. 1.) 6 Mental Disorders, is relevant: 7 The criteria in The discussion in Listing 12.00, paragraphs functional B and limitations C describe 8 impairment-related that are 9 incompatible with the ability to do any gainful activity. 10 The functional limitations in paragraphs B and C must be the 11 result of the mental disorders described in the diagnostic 12 description, that is manifested by the medical findings in 13 paragraph A. 14 In Listing 12.00C, entitled Assessment of Severity, 15 it is stated that, we assess functional limitations using 16 the four criteria in paragraph B of the Listings: Activities 17 of 18 persistence, or pace; and episodes of decompensation. Where 19 we use marked as a standard for measuring the degree of 20 limitation, it means more than moderate but less than 21 extreme. 22 Social Security Ruling ( SSR ) 96-8p makes the same point in 23 distinguishing evidence supporting a rating of mental severity at Step 24 Two, a Listing level impairment at Step Three, and the determination 25 of an individual s MRFC at Step Four. daily living; social functioning; concentration; 26 20 C.F.R. §404.1520a(d)(3) mandates that the Commissioner assess 27 a Plaintiff s RFC if the Commissioner finds that the Plaintiff s 28 mental impairment(s) is severe but neither meets nor is equivalent in 13 1 severity to 2 ( Listing ). The RFC is an administrative finding reserved for the 3 ALJ and the ALJ must reach that finding after considering all of the 4 relevant evidence, including the diagnoses, treatment, observations by 5 the treating physicians and family members, medical records, and 6 Plaintiff s own subjective symptoms. Social Security Ruling 96-5p, 7 1996 WL 374183 (July 2, 1996); Social Security Ruling 96-8p, 1996 WL 8 374184 9 adjudicators at each level of the administrative review process based 10 on all of the relevant evidence in the case record ....); Bray v. 11 Commissioner of Social Security Administration, 554 F. 3d 1219, 1224 12 (9th Cir. 2009)(finding that Social Security Rulings are binding on 13 ALJs even though they do not carry the force of law ). (July those 2, impairments 1996)(stating in that the the Listing RFC of is Impairments assessed by 14 In deciding whether a Plaintiff is disabled, the ALJ will always 15 consider the medical opinions in the case record together with the 16 rest of the relevant evidence that the ALJ receives. 20 C.F.R. 17 §404.1527 (b). There are three types of medical opinions in social 18 security 19 consultants, and non-examining physicians. Valentine v. Commissioner 20 of Social Security Administration , 574 F.3d 685, 692 (9th Cir. 2009). 21 Generally, [the ALJ will] give more weight to opinions from [the 22 Plaintiff s] treating sources. 20 C.F.R. §404.1527 (d)(2). cases: Opinions from treating physicians, examining 23 Even if the treating physician s opinion is contradicted by 24 another doctor, the ALJ may not reject the treating physician s 25 opinion without providing specific, legitimate reasons, supported by 26 substantial evidence in the record. Ryan v. Commissioner of Social 27 Security Administration, 528 F.3d 1194, 1198 (9th Cir. 2008). Where 28 the opinion of a non-treating source contradicts the opinion of 14 1 Plaintiff s treating physician and is based on independent clinical 2 findings that differ from those of the treating physician, the opinion 3 of a non-treating source may itself constitute substantial evidence. 4 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); But see Id. at 5 1042 (finding that a non-examining physician s opinion with nothing 6 more does not constitute substantial evidence). 7 [ALJs] are not bound by any findings made by State agency 8 medical or psychological consultants, or other program physicians or 9 psychologists. 20 C.F.R. §404.1527 (f)(2)(I). However, [the ALJ] 10 must consider the entire record as a whole and may not affirm simply 11 by isolating a specific quantum of supporting evidence . Robbins v. 12 Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006); See 13 also 14 1984)(finding that the ALJ cannot reach a conclusion first, and then 15 attempt to justify it by ignoring competent evidence in the record 16 that suggests an opposite result). Gallant v. Heckler, 753 F.2d 1450, 1455-56 (9th Cir. 17 18 B. Analysis. 19 The Court will remand the case to the ALJ to conduct a review of 20 Plaintiff s mental impairments. The ALJ did not provide specific, 21 legitimate reasons, supported by substantial evidence in the record 22 to reject Dr. Feinfeld s opinion that Plaintiff is unable to perform 23 functions 24 communication. (AR 18; See 25 perform work that involves no more than occasionally [sic] contact 26 with supervisors, coworkers and the general public , the ALJ simply 27 concluded that Dr. Feinfeld s statements ... are not supported by the 28 longitudinal record. (AR 18) The ALJ indicated that he instead requiring calculations, interpersonal interaction and 503) In finding that Plaintiff can 15 1 adopted the testimony of the ME (AR 67-78), who concluded that 2 Plaintiff s essential limitation was limited contact with co- 3 workers and supervisors (AR 78) and who rejected Dr. Feinfeld s 4 conclusions: I also didn t find evidence as Dr. Finefeld [sic] 5 indicates [AR 503] that [Plaintiff s] condition was deteriorating and 6 deterioration [sic] declining course is not primarily typically part 7 of the syndrome. (AR 72) However, the record as a whole does in fact 8 support Dr. Feinfeld s conclusion that Plaintiff s deteriorating 9 Asperger s syndrome has made him unable to perform functions that 10 require interpersonal interaction and communication ... and 11 calculations (AR 503), as well as [being unable to] function in 12 situations which require face to face interactions. (AR 495) In 2006, 13 the SSA notified Plaintiff of his termination as CR, stating that 14 since approximately 2003, [Plaintiff s] work quality deteriorated , 15 documenting Plaintiff s previous work-related accomplishments from the 16 beginning of his career in 1988 until 2001, which included receiving 17 awards and a promotion (AR 237). Moreover, the SSA s termination 18 notice showed that the SSA precluded Plaintiff from dealing directly 19 or indirectly with the public as part of his job (See AR 227) as a 20 result of Plaintiff s inability to have contact with the public and 21 inability to get along with co-workers including numerous complaints 22 from co-workers about Plaintiff s inability to conform to social 23 norms. (AR 237) If taken at face value, the SSA s assessment of 24 Plaintiff s mental limitations would, in fact, seem consistent with 25 Dr. Feinfeld s own assessment. 26 Dr. Feinfeld s conclusion that Plaintiff can no longer perform 27 functions which require mental activity, such as calculations (AR 28 503) is also supported by the record as a whole. 16 The SSA documented 1 Plaintiff s inability to perform his workload which is by its nature, 2 complex and requires independent decision-making. (AR 223); The State 3 agency consultant, Dr. Frank L. Williams (AR 486-88), arrived at 4 levels of moderate limitations in Plaintiff s ability to carry out 5 detailed instructions and his ability to understand and remember 6 detailed instructions. (AR 486); Dr. Townsend, the psychologist 7 retained by the Commissioner as an examining consultant, concluded in 8 her psychological evaluation in March 2007 that Plaintiff is limited 9 to performing simple repetitive task[s] and [can] complete a full 10 day s work without interruption from psychiatric symptoms. (AR 472) 11 Furthermore, Dr. Feinfeld s opinion is not completely at odds 12 with the ME s assessment of Plaintiff s mental functional limitations 13 at the hearing (AR 71-72) which the ALJ adopted (AR 18). Dr. Griffin 14 arrived at levels of marked limitations for Plaintiff s ability to 15 get along with co-workers and peers without distracting them or 16 exhibiting behavioral extremes , as well as moderate limitations for 17 Plaintiff s 18 public and ability to maintain socially appropriate behavior and 19 adhere to basic standards of neatness and cleanliness. (AR 71) While 20 the ALJ purported to agree with the ME s analysis and used it as the 21 basis for assessing Plaintiff s MRFC, in fact, it would seem that the 22 ME s assessment of Plaintiff s mental functional limitations were more 23 restrictive than those the ALJ adopted. ability to interact appropriately with the general 24 The ALJ s MRFC assessment is equally troubling for the reason 25 that the ALJ did not provide specific, legitimate reasons, supported 26 by substantial evidence in the record to reject the opinions of Dr. 27 Townsend and Dr. Williams, that [Plaintiff] is limited to the 28 performance of simple repetitive tasks without further limitation. 17 1 (AR 19; 472, 488, exhibit citation omitted); Carmickle v. Commissioner 2 of Social Security Administration, 533 F.3d 1155, 1164 (9th Cir. 2008) 3 (finding that the Commissioner may reject the controverted opinion of 4 an examining physician only for specific and legitimate reasons 5 supported by substantial evidence in the record ). Dr. Griffin s 6 assessment during the hearing that Plaintiff did not have any 7 significant limitations in understanding and remembering (AR 71) 8 contrasts 9 Williams mental functional limitations assessment which found that 10 Plaintiff had moderate limitations in [his] ability to understand 11 and remember detailed instructions and in [his] ability to carry out 12 detailed instructions. (AR 468-472, 486) However, Dr. Griffin does 13 not reference any objective medical findings in the record for his 14 mental functional limitations assessment other than the following 15 statements: with Dr. Townsend s psychological evaluation and Dr. 16 [M]any individuals with [Asperger s syndrome] are capable 17 of gainful employment and personal self-sufficiency. (AR 18 71); 19 psychological evaluation and Dr. To s Internal Medicine 20 Evaluation] 21 apparently meet the diagnosis for an affective disorder. 22 (AR 76); [T]his record reflects someone who with the right 23 work circumstances could be happily and gainfully employed. 24 (AR 78) 25 In fact, the ME s testimony focuses mostly on his assessment of [When Plaintiff] [AR 462-67, limitations in was undergoing 468-72] social [Dr. [Plaintiff] does as not 26 Plaintiff s 27 understanding and memory (See AR 77-78). The ME failed to even mention 28 Dr. Williams mental functional limitation assessments and made only 18 interactions Townsend s opposed to 1 a fleeting critique of Dr. Townsend s psychological evaluation: Dr. 2 Townsend found that [Plaintiff s] Asperger s disorder was simply by 3 history and assigned a GAF score of 60 which indicates relatively mild 4 to moderate condition. (AR 73) The ME also failed to cite the results 5 of 6 evaluation 7 conclusions (AR 470-72) or any other clinical findings in the record. 8 See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (finding 9 that the contrary opinion of a non-examining medical expert alone does the five tests that constitute administered formed the specific, during basis of legitimate Plaintiff s Dr. psychological Townsend s reason for relevant 10 not rejecting an 11 examining physician s opinion but may constitute substantial evidence 12 when ... consistent with other independent evidence in the record ). 13 Although Dr. Townsend did not have the opportunity to review 14 Plaintiff s treatment records during the psychological evaluation (AR 15 472), unlike Dr. Griffin who did review Plaintiff s medical record (AR 16 67), Dr. Townsend s conclusion is entitled to greater weight. Dr. 17 Townsend s conclusion that Plaintiff is limited to performing simple 18 repetitive task[s] (AR 472) is consistent with the record as a whole. 19 Plaintiff s dismissal notice from the SSA documents Plaintiff s 20 inability to follow basic instructions and [Plaintiff] often fixates 21 on specific tasks after his re-assignment to perform limited clerical 22 work in November 2005 (AR 227), and the SSA s notice also documents 23 Plaintiff s general inability to perform the critical element of the 24 CR position which by its nature is complex and requires independent 25 decision-making ... [and] is not repetitive or routine. (AR 223) Dr. 26 Feinfeld s letter dated September 2004 indicates that [as a result of 27 Plaintiff s Asperger s syndrome, Plaintiff] has difficulties with 28 transition or changes and functions better when there is a sameness or 19 1 a repetitive routine. This makes it difficult for him at work to deal 2 with interruptions or sudden changes to his work schedule. (AR 286) 3 Lastly, the ALJ s MRFC assessment that [Plaintiff] has mild 4 limitations in concentration (AR 18) is not supported by the record 5 as a whole. The ALJ purported to base his assessment of Plaintiff s 6 MRFC on the ME s opinion at the hearing: I accept the opinion of Dr. 7 Griffin and interpret his stated limitations as indicating that 8 [Plaintiff] ... has mild limitations in concentration. (AR 18, 9 emphasis added.) However, the ALJ s MRFC assessment is inconsistent 10 with Dr. Griffin s actual mental functional limitations assessment 11 that Plaintiff has moderate limitations in his ability to maintain 12 attention and concentration for extended periods of time , in his 13 ability to work in coordination or proximity with others without 14 being a distraction to them , and in [his] ability to complete a 15 normal 16 symptoms. 17 inconsistent with the record which frequently documents Plaintiff s 18 problems with focusing at work as a result of his Asperger s and sleep 19 apnea syndrome (AR 274; 222-23), Plaintiff s Provigil prescription in 20 order 21 Plaintiff s reoccurring episodes of sleeping while on duty (AR 228- 22 29). workday to (AR without 71) increase interruption Furthermore, his level of the from ALJ s alertness psychologically-based MRFC (AR assessment 180; 320), is and 23 The ALJ s MRFC assessment that [Plaintiff] has mild limitations 24 in concentration is also not supported by objective medical findings. 25 Although the ALJ only mentions Dr. Williams assessment of Plaintiff s 26 concentration to reject Dr. Williams conclusion that Plaintiff is 27 limited to the performance of simple repetitive tasks without further 28 limitation (AR 19; See 488), the ALJ s ultimate assessment of mild 20 1 limitations in concentration is supported nowhere else in the record 2 (AR 486). Dr. Williams never examined Plaintiff and his assessment is 3 completely based on Dr. Townsend s psychological evaluation (See AR 4 468-72; 474, 488). However, Dr. Williams assessment of Plaintiff s 5 concentration alone does not constitute substantial evidence because 6 Dr. Townsend s psychological evaluation made no objective medical 7 findings 8 assessment is apparently based only on Plaintiff s subjective belief 9 that he denies problems with memory or concentration. (AR 468); See 10 20 C.F.R. §404.1529 (b) ( Your symptoms, such as pain, fatigue, 11 shortness of breath, weakness, or nervousness, will not be found to 12 affect your ability to do basic work activities unless medical signs 13 and 14 impairment(s) is present ); See also Crane v. Shalala, 76 F.3d 251, 15 253 (9th Cir. 1996), citing Murray v. Heckler, 722 F.2d 499, 501 (9th 16 Cir. 1983) (finding that Check-off forms are disfavored, especially 17 when they are unsupported by objective findings). as to laboratory Plaintiff s findings concentration show that a and Dr. medically Williams own determinable 18 For the foregoing reasons, the Court concludes that the ALJ s 19 evaluation of all of the psychiatric and psychological evidence 20 insufficient to perform an adequate analysis and to reach conclusions 21 at Step Four and Step Five of the sequential evaluation process. 22 // 23 // 24 // 25 // 26 // 27 // 28 21 1 On remand, the ALJ must evaluate the psychiatric and 2 psychological evidence and give proper reasons to substantiate the 3 conclusions to be drawn as to Plaintiff s MRFC. 4 IT IS SO ORDERED. 5 6 7 DATED: June 28, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22
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