Vickie Jean Lillard v. Michael J. Astrue, No. 2:2010cv06856 - Document 16 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman (twdb)
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Vickie Jean Lillard v. Michael J. Astrue Doc. 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 WESTERN DIVISION 9 10 VICKIE JEAN LILLARD, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-6856-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Vickie 19 Commissioner s 20 Security Disability Insurance ( SSDI ) and Supplemental Security Income 21 ( SSI ) benefits. For the reasons set forth below, the decision of the 22 Social Security Commissioner is reversed, and the matter is remanded for 23 further proceedings consistent with this opinion. final Jean Lillard decision seeks denying her judicial review application of for the Social 24 25 I. Background 26 Plaintiff was born on September 6, 1950 and was 58 years old at the 27 time of the administrative hearing. (AR 67, 118.) She has a high school 28 education and has work experience as a cashier, data entry clerk, Dockets.Justia.com 1 dishwasher and stock clerk. (AR 64, 71.) 2 Plaintiff filed her application for SSDI and SSI benefits on July 3 7, 2006, alleging disability commencing January 2, 2005 due to lower 4 back pain, arthritis, and depression. (Administrative Record ( AR ) 43- 5 45, 60.) Plaintiff s application was denied initially on January 3, 2007 6 and upon reconsideration on February 20, 2008. (AR 32-36, 40-42.) An 7 administrative hearing was held via video on July 9, 2009 before 8 Administrative Law Judge ( ALJ ) Patti L. Hunter. Plaintiff, who was 9 represented by a non-attorney representative, testified, as did a 10 vocational expert ( VE ). (AR 375-400.) 11 On August 3, 2009, ALJ Hunter denied Plaintiff s application for 12 benefits. (AR 17-24.) The ALJ found that Plaintiff had not engaged in 13 substantial gainful activity since the alleged onset date. (AR 19.) The 14 ALJ 15 depression, anxiety, mild degenerative arthritis of the knees and hands, 16 degenerative arthritis of the lumbar spine, and substance abuse in 17 sustained remission. (Id.) However, the ALJ determined that Plaintiff s 18 impairments did not meet or were not medically equal to, one of the 19 listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. (AR 20 20.) found that Plaintiff had the following severe impairments: 21 The ALJ found that Plaintiff retained the residual functional 22 capacity ( RFC ) to perform light work with the following exceptions: 23 no frequent stooping, kneeling, crouching, crawling, climbing ropes, 24 ladders, scaffolding, or balancing and moderate limitations: dealing 25 with the public; maintaining attention and concentration; understanding, 26 remembering, and carrying out complex and detailed job instructions; and 27 in her ability to maintain a persistent work pace. (AR 22.) It was 28 determined that Plaintiff was able to perform her past relevant work as 2 1 a data entry clerk and as a retail cashier. (AR 24.) Therefore, the ALJ 2 concluded that Plaintiff was not disabled within the meaning of the 3 Social Security Act. 20 C.F.R. § 416.920(f). (Id.) 4 On July 20, 2010, the Appeals Council denied review (AR 6-8), and 5 Plaintiff timely commenced this action for judicial review. On April 1, 6 2011, the parties filed a Joint Stipulation ( Joint Stip. ) of disputed 7 facts and issues, in which Plaintiff claims that (1) the ALJ improperly 8 evaluated Plaintiff s RFC and her ability to perform past relevant work; 9 (2) the ALJ failed to fully and properly develop the record; and (3) the 10 ALJ improperly discredited Plaintiff s testimony and that of a third 11 party. (Joint Stip. 3.) Plaintiff asks the Court to order an award of 12 benefits, or in the alternative, remand for further proceedings. (Joint 13 Stip. 14 affirmed. (Joint Stip. 32.) 31.) The Commissioner requests that the ALJ s decision be 15 After reviewing the parties respective contentions and the record 16 as a whole, the Court finds that the ALJ erred by failing to include the 17 mental limitations found by the examining psychologist in the RFC, or 18 alternatively, by failing to explain why she did not include these 19 limitations in the RFC despite giving great weight to the examining 20 psychologist s opinion. Accordingly, this matter shall be remanded for 21 further proceedings consistent with this opinion.1 22 23 24 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 25 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 26 decision must be upheld unless the ALJ s findings are based on legal 27 28 1 The Court will only address in detail the ALJ s error in failing to address the mental limitations found by the examining psychologist. The Court will not decide whether any of the remaining issues would independently warrant relief. Upon remand, the ALJ may wish to consider the other issues raised by Plaintiff. 3 1 error or are not supported by substantial evidence in the record as a 2 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra v. 3 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 4 such evidence as a reasonable person might accept as adequate to support 5 a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark 6 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 7 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 8 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 9 evidence supports the ALJ s finding, the reviewing court must review 10 the administrative record as a whole, weighing both the evidence that 11 supports 12 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 13 the 14 conclusion, the reviewing court may not substitute its judgment for 15 that of the ALJ. Robbins, 466 F.3d at 882. and evidence the can evidence support that detracts either from affirming the Commissioner s or reversing the ALJ s 16 17 III. Discussion 18 Plaintiff contends the ALJ erred by failing to include certain 19 mental limitations found to exist by the examining psychologist in the 20 RFC finding. (Joint Stip. 4.) Plaintiff further argues that, as a result 21 of the ALJ s failure to include these limitations in the hypothetical 22 question posed to the VE, the ALJ also erred in finding her capable of 23 performing her past relevant work. (Id.) 24 The ALJ rejected the opinions of Plaintiff s treating physicians, 25 both of whom opined that Plaintiff was disabled, finding that they were 26 inconsistent with the evidence in the record. (AR 23, 307-309, 352.) The 27 ALJ stated that she was giving greater weight to the opinion of the 28 examining consultative psychologist, Marne Ann Trevisano, Ph.D. (AR 23.) 4 1 Dr. Trevisano diagnosed Plaintiff with severe major recurrent depression 2 and assessed her with a Global Assessment of functioning ( GAF ) score 3 of 48.2 Dr. Trevisano also opined that Plaintiff s ability to carry out 4 simple instructions was poor, that she was not capable of handling her 5 own funds, and that Plaintiff had a mental impairment that would limit 6 her ability to engage in work activity. (AR 200-205.) 7 Despite giving greater weight to Dr. Trevisano s opinion than to 8 those of Plaintiff s treating physicians, the ALJ did not include any of 9 the significant mental limitations found by Dr. Trevisano in the RFC 10 assessment. Rather, the ALJ assessed Plaintiff as having only moderate 11 limitations in dealing with the public; maintaining attention and 12 concentration; understanding, remembering, and carrying out complex and 13 detailed job instructions; and in her ability to maintain a persistent 14 work pace. (AR 22.) 15 The Commissioner is directed to weigh medical opinions based in 16 part on their source, specifically, whether proffered by treating, 17 examining, or non-examining professionals. Lester v. Chater, 81 F.3d 18 821, 830-31 (9th Cir. 1995). Generally, more weight is given to the 19 opinion of a treating professional, who has had a greater opportunity to 20 21 22 23 24 25 26 27 28 2 The GAF Scale provides a measure for an individual s overall level of psychological, social, and occupational functioning. Am. Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders 30 (4th ed. 1994). The Scale may be particularly useful in tracking the clinical progress of individuals in global terms, using a single measure. Id. A GAF range of 41-50 reflects [s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. at 32. However, despite its usefulness as a tool for psychological assessment, a GAF score is not determinative of mental disability or limitation for social security purposes. 65 Fed.Reg. 50746, 50764-50765 (Aug. 21, 2000) ( The GAF score does not have a direct correlation to the severity requirements in our mental disorders listings. ) 5 1 know and observe the patient as an individual, than the opinion of a 2 non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 3 (9th Cir. 1996). The Commissioner must also consider whether a medical 4 opinion is supported by clinical findings and is contradicted by other 5 medical 6 uncontradicted opinion of a treating or examining medical professional 7 only 8 evidence in the record. See Lester, 81 F.3d at 831. for evidence clear of and record. The convincing Commissioner reasons may supported by reject the substantial 9 Here, the ALJ did not provide any explanation, let alone clear and 10 convincing reasons, for the failure to include the mental limitations 11 found by Dr. Trevisano in the RFC assessment. If the ALJ disagreed with 12 the mental limitations found by Dr. Trevisano, then she was required to 13 provide specific reasons for rejecting Dr. Trevisano s opinion. 14 Nor can the Court say with confidence that this error was harmless. 15 See Stout v. Commissioner, 454 F.3d 1050, 1052 (9th Cir. 2006) (error is 16 not 17 reasonable ALJ, when fully crediting the testimony, could have reached 18 a 19 conclusion that Plaintiff could perform her past relevant work as a data 20 entry clerk and retail cashier on the testimony of the VE. (AR 24, 398- 21 399.) However, none of the mental limitations found by Dr. Trevisano 22 were included in the hypothetical to the VE. (AR 399.) It is unclear 23 whether Plaintiff would be able to perform her past relevant work if the 24 ALJ credits Dr. Trevisano s opinion, or alternatively whether there is 25 any work in the national economy which Plaintiff could perform. harmless different unless the disability court can confidently determination ). Here, conclude the ALJ that based no her 26 The Commissioner contends that the ALJ explained why she was not 27 adopting Dr. Trevisano s opinion in its entirety, that is, because the 28 treatment records do not show that Plaintiff s mental condition was 6 1 consistently at the level opined by Dr. Trevisano. (Joint Stip. 11, 2 citing AR 20.) The Court has thoroughly reviewed the ALJ s entire 3 opinion, including the page cited by the Commissioner, and there is 4 simply no explanation by the ALJ for why she did not adopt any of the 5 marked mental limitations found by Dr. Trevisano. The only specific 6 statement made by the ALJ concerning Dr. Trevisano s opinion is the 7 following: Dr. Trevisano found that the claimant would have problems 8 with concentration, persistence and pace. While Dr. Trevisano did opine 9 that the claimant would be hard to employ this statement is given 10 little weight considering that Dr. Trevisano is not a vocational expert 11 qualified to testify as to the employability of the claimant. (AR 23.) 12 However, 13 Trevisano s opinion about Plaintiff s mental illness but then failed to 14 include any of the mental limitations found by Dr. Trevisano in the RFC 15 assessment. 16 The this hardly Commissioner explains posits why the various ALJ other seemingly reasons adopted for the Dr. ALJ s 17 rejection of Dr. Trevisano s opinion. For example, the Commissioner 18 argues that Dr. Trevisano s opinion was contradicted by other medical 19 evidence in the record, such as the reviewing psychologist s opinion, 20 and that Dr. Trevisano s opinion was cursory and unsupported by any 21 objective testing. (Joint Stip. 12-14.) Although these may be legitimate 22 reasons for rejecting Dr. Trevisano s opinion, they are not reasons 23 provided by the ALJ herself. The Court may review only the reasons 24 provided by the ALJ in the disability determination and may not affirm 25 the ALJ on a ground upon which he did not rely. Orn v. Astrue, 495 F.3d 26 625, 630 (9th Cir. 2007). 27 // 28 // 7 1 IV. Conclusion 2 The decision whether to remand for further proceedings is within 3 this Court s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th 4 Cir. 2000). Where no useful purpose would be served by further 5 administrative proceedings, or where the record has been fully developed, 6 it is appropriate to exercise this discretion to direct an immediate 7 award of benefits. Id. at 1179 ( [T]he decision of whether to remand for 8 further proceedings turns upon the likely utility of such proceedings. ); 9 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). However, where 10 there are outstanding issues that must be resolved before a determination 11 of disability can be made, and it is not clear from the record that the 12 ALJ would be required to find the claimant disabled if all the evidence 13 were properly evaluated, remand is appropriate. Bunnell v. Barnhart, 336 14 F.3d 1112, 1115-16 (9th Cir. 2003); see also Connett, 340 F.3d at 876 15 (remanding case for reconsideration of credibility determination). 16 Here, the ALJ failed to explain with sufficient specificity the 17 reasons for failing to include in the RFC assessment the significant 18 mental limitations found by the examining psychologist. Accordingly, the 19 case is reversed and remanded for further proceedings consistent with 20 this opinion and order. 21 22 DATED: April 7, 2011 23 24 25 ______________________________ Marc L. Goldman United States Magistrate Judge 26 27 28 8
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