James K. Ceballos v. Michael J. Astrue, No. 2:2010cv08391 - Document 17 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. See memorandum for details. (hr)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JAMES K. CEBALLOS, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. CV 10-8391 JC ) ) ) MEMORANDUM OPINION AND ) ORDER OF REMAND ) ) ) ) ) ) ) 18 19 I. On November 4, 2010, plaintiff James K. Ceballos ( plaintiff ) filed a 20 21 22 23 Complaint seeking review of the Commissioner of Social Security s denial of plaintiff s application for benefits. The parties have consented to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; November 9, 2010 Case Management Order ¶ 5. /// 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum Opinion and Order of Remand. 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On October 10, 2007, plaintiff filed an application for Disability Insurance 7 Benefits. (Administrative Record ( AR ) 20, 119-21). Plaintiff asserted that he 8 became disabled on January 20, 2005, due to a heart condition. (AR 140). The 9 Administrative Law Judge ( ALJ ) examined the medical record and heard 10 testimony from plaintiff (who appeared with a non-attorney representative) and a 11 vocational expert on October 13, 2009. (AR 29-68). 12 On October 19, 2009, the ALJ determined that plaintiff was not disabled 13 through June 30, 2008, the date plaintiff was last insured. (AR 20). Specifically, 14 the ALJ found: (1) plaintiff suffered from the following severe impairments: 15 syncope and ventricular tachycardia, dilated cardiomyopathy (alcohol related), 16 status post internal cardiac defibrillator/pacemaker generator placement and 17 subsequent change, hepatitis C, and history of tobacco and polysubstance abuse 18 (AR 22); (2) plaintiff s impairments, considered singly or in combination, did not 19 meet or medically equal a listed impairment (AR 24); (3) plaintiff retained the 20 residual functional capacity to perform light work (20 C.F.R. § 404.1567(b)) with 21 certain additional limitations1 (AR 24); (4) plaintiff could perform his past 22 23 1 The ALJ determined that plaintiff: (i) could exert up to 20 pounds of force occasionally, 24 up to 10 pounds of force frequently, and a negligible amount of force constantly to move objects; 25 (ii) could stand and walk up to six hours in an eight-hour workday with normal breaks; (iii) could not climb ladders, ropes or scaffolds; (iv) could occasionally climb ramps or stairs, stoop, kneel, 26 crouch or crawl; (v) could perform work that involves less than moderate exposure to 27 environmental irritants, poorly ventilated areas, hazardous machinery, unprotected heights, or other high risk, hazardous or unsafe conditions; and (vi) could work in an environment that is 28 mentally and physically low stress ( which is defined as work that does not require unusual, very fast paced or production rate requirements ). (AR 24). 2 1 relevant work as a trouble locator, test desk (AR 27-28); and (5) plaintiff s 2 allegations regarding his limitations were not credible to the extent they were 3 inconsistent with the ALJ s residual functional capacity assessment (AR 26). 4 The Appeals Council denied plaintiff s application for review. (AR 1-3). 5 III. APPLICABLE LEGAL STANDARDS 6 A. 7 To qualify for disability benefits, a claimant must show that he is unable to Sequential Evaluation Process 8 engage in any substantial gainful activity by reason of a medically determinable 9 physical or mental impairment which can be expected to result in death or which 10 has lasted or can be expected to last for a continuous period of at least twelve 11 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 12 § 423(d)(1)(A)). The impairment must render the claimant incapable of 13 performing the work he previously performed and incapable of performing any 14 other substantial gainful employment that exists in the national economy. Tackett 15 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 16 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 17 sequential evaluation process: 18 (1) 19 20 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant s alleged impairment sufficiently severe to limit 21 his ability to work? If not, the claimant is not disabled. If so, 22 proceed to step three. 23 (3) Does the claimant s impairment, or combination of 24 impairments, meet or equal an impairment listed in 20 C.F.R. 25 Part 404, Subpart P, Appendix 1? If so, the claimant is 26 disabled. If not, proceed to step four. 27 /// 28 /// 3 1 (4) Does the claimant possess the residual functional capacity to 2 perform his past relevant work? If so, the claimant is not 3 disabled. If not, proceed to step five. 4 (5) Does the claimant s residual functional capacity, when 5 considered with his age, education, and work experience, allow 6 him to adjust to other work that exists in significant numbers in 7 the national economy? If so, the claimant is not disabled. If 8 not, the claimant is disabled. 9 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 10 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 11 The claimant has the burden of proof at steps one through four, and the 12 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 13 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also 14 Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability). 15 B. 16 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 17 benefits only if it is not supported by substantial evidence or if it is based on legal 18 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 19 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 20 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 21 mind might accept as adequate to support a conclusion. Richardson v. Perales, 22 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 23 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 24 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 25 To determine whether substantial evidence supports a finding, a court must 26 consider the record as a whole, weighing both evidence that supports and 27 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 28 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 4 1 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 2 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 3 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 4 IV. DISCUSSION 5 Plaintiff contends that the ALJ failed properly to consider the opinions of 6 Dr. Ahn Duong, plaintiff s treating cardiologist. (Plaintiff s Motion at 12-13) 7 (citing AR 360). As discussed in detail below, this Court agrees. As this Court 8 cannot find that the ALJ s error was harmless, a remand is warranted. 9 10 A. Pertinent Law In Social Security cases, courts employ a hierarchy of deference to medical 11 opinions depending on the nature of the services provided. Courts distinguish 12 among the opinions of three types of physicians: those who treat the claimant 13 ( treating physicians ) and two categories of nontreating physicians, namely 14 those who examine but do not treat the claimant ( examining physicians ) and 15 those who neither examine nor treat the claimant ( nonexamining physicians ). 16 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote reference omitted). A 17 treating physician s opinion is entitled to more weight than an examining 18 physician s opinion, and an examining physician s opinion is entitled to more 19 weight than a nonexamining physician s opinion.2 See id. In general, the opinion 20 of a treating physician is entitled to greater weight than that of a non-treating 21 physician because the treating physician is employed to cure and has a greater 22 opportunity to know and observe the patient as an individual. Morgan v. 23 Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 24 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). 25 26 27 28 2 Cf. Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (not necessary or practical to draw bright line distinguishing treating physicians from non-treating physicians; relationship is better viewed as series of points on a continuum reflecting the duration of the treatment relationship and frequency and nature of the contact) (citation omitted). 5 1 The treating physician s opinion is not, however, necessarily conclusive as 2 to either a physical condition or the ultimate issue of disability. Magallanes v. 3 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 4 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician s opinion is not 5 contradicted by another doctor, it may be rejected only for clear and convincing 6 reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal 7 quotations omitted). The ALJ can reject the opinion of a treating physician in 8 favor of another conflicting medical opinion, if the ALJ makes findings setting 9 forth specific, legitimate reasons for doing so that are based on substantial 10 evidence in the record. Id. (citation and internal quotations omitted); Thomas v. 11 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by setting out 12 detailed and thorough summary of facts and conflicting clinical evidence, stating 13 his interpretation thereof, and making findings) (citations and quotations omitted); 14 Magallanes, 881 F.2d at 751, 755 (same; ALJ need not recite magic words to 15 reject a treating physician opinion court may draw specific and legitimate 16 inferences from ALJ s opinion). The ALJ must do more than offer his 17 conclusions. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). He must 18 set forth his own interpretations and explain why they, rather than the 19 [physician s], are correct. Id. Broad and vague reasons for rejecting the 20 treating physician s opinion do not suffice. McAllister v. Sullivan, 888 F.2d 599, 21 602 (9th Cir. 1989). 22 B. 23 In a Cardiac Impairment Questionnaire dated December 5, 2008, Dr. Duong Pertinent Facts 24 opined that: (i) plaintiff could stand/walk for two hours and sit for eight hours in 25 an eight-hour work day; (ii) plaintiff could occasionally lift/carry only 10 pounds; 26 (iii) plaintiff could not push, pull, kneel, bend or stoop; (iv) plaintiff is likely to be 27 absent from work as a result of his impairments or related treatment about once a 28 month; (v) depression contributed to the severity of plaintiff s symptoms and 6 1 functional limitations; (vi) plaintiff s subjective symptoms would periodically 2 interfere with his attention and concentration; (vii) plaintiff could tolerate only 3 low stress work; and (viii) other limitations that would affect plaintiff s ability to 4 work at a regular job on a sustained basis include: psychological limitations, and 5 plaintiff s need to avoid fumes, gasses, temperature extremes, humidity, dust, and 6 heights (collectively Dr. Duong s Opinions ). (AR 360). 7 Plaintiff s medical records reflect that beginning in December of 2007 8 plaintiff was prescribed Fluoxetine3 if needed for stress. (AR 160; see, e.g., AR 9 230, 233, 244, 283, 303, 307, 312, 324, 326, 328, 329, 330, 335, 337, 340, 343, 10 344, 350, 352, 375, 393, 420, 450). 11 At the administrative hearing, plaintiff testified that as early as February 12 2008, he had experienced panic attacks and anxiety, in part due to the stress from 13 his prior job. (AR 51-52). Plaintiff testified that, as a result, he would not be able 14 to perform the duties of his past relevant work. (AR 51-52). In light of such 15 testimony, the ALJ asked plaintiff what treatment he had received for panic 16 attacks: 17 18 Q. [Plaintiff], had you seen with respect to the panic attacks, have you ever seen a therapist about that? 19 A. No. I did see I did go talk to what they call at Kaiser 20 addictive medicine, where I go see a doctor about my attacks, 21 whatever. Because, again, I couldn t explain why I got them, they put 22 me in a group therapy where it handles anxiety attacks. 23 Q. Okay. 24 25 3 See Fluoxetine, Drug Information Online, available at http://www.drugs.com/fluoxetine. 26 html ( Fluoxetine is a selective serotonin reuptake inhibitors (SSRI) antidepressant. Fluoxetine 27 affects chemicals in the brain that may become unbalanced and cause depression, panic, anxiety, or obsessive-compulsive symptoms. [¶] Fluoxetine is used to treat major depressive disorder 28 [and] . . . panic disorder. . . . ). 7 1 A. So it was for about 12 weeks long. It was a person 2 telling us how to breathe, how to do certain things once you get these 3 attacks. 4 Q. Okay. 5 A. And that was basically the only things that 6 Q. Okay. They didn t put you on any kind of special 7 medication? 8 A. No. 9 ALJ: Okay. All right. Thank you. 10 (AR 59-60). 11 Towards the end of the administrative hearing, plaintiff s representative 12 argued that, in light of plaintiff s residual functional capacity and testimony from 13 the vocational expert, sections 201.06 and 202.06 of the Medical-Vocational 14 Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as the 15 Grids ) required a finding of disabled in plaintiff s case. (AR 65-66). In 16 response, the ALJ acknowledged that plaintiff s was a close case, and that 17 plaintiff s ability to perform his past relevant work was, therefore, the key issue 18 to be resolved. (AR 66). Nonetheless, the ALJ declined plaintiff s 19 representative s request that plaintiff receive a psychological consultative 20 examination: 21 ALJ: I don t see that the extent of the information that we 22 have in the record warrants a psychological CE. I don t think that ll 23 be cost-effective. I m just being honest on that. 24 25 26 REP: Okay. The record doesn t really have much development on that. ALJ: I know. And nor do we have any indication really that, 27 you know, even going through therapy that even a mild 28 antidepressant or anti-anxiety medicine was either recommended by a 8 1 therapist or even [plaintiff s] primary care physician so you know, 2 even the primary care physician would say, you know, try some Paxil 3 for a while or Wellbutrin or something. Okay. But we don t even 4 have that. 5 (AR 66). 6 In his decision, the ALJ concluded that plaintiff did not have a severe 7 mental impairment: 8 9 [Plaintiff] testified that he has a mental impairment. He had anxiety and panic attacks in February 2008 and attended group 10 therapy for 12 weeks; however, [plaintiff] also testified that he was 11 not prescribed any medications to treat his panic attacks. [Plaintiff] 12 further testified that he received no other psychiatric treatment and 13 was never given any psychiatric medications. Additionally, the 14 record contains no mental health treatment records to establish that 15 [plaintiff] has a clinical diagnosis of anxiety or a panic disorder or 16 that his anxiety/panic attacks have caused any significant functional 17 limitations. 18 (AR 22-23). 19 C. 20 Plaintiff contends that a reversal or remand is appropriate because the ALJ Analysis 21 failed adequately to consider Dr. Duong s opinion that plaintiff had functional 22 limitations due to depression. Defendant argues that a reversal or remand would 23 not be appropriate essentially because (i) substantial evidence supports the ALJ s 24 conclusion that plaintiff suffered from nothing more than a nonsevere anxiety 25 disorder; (ii) the ALJ properly rejected Dr. Duong s Opinions in [their] entirety 26 as based on plaintiff s subjective complaints and not supported by objective 27 medical evidence; and (iii) the record before the ALJ lacked a sufficient basis for 28 ordering a psychiatric consultative examination. (Defendant s Motion at 4-5). 9 1 This Court concludes that the ALJ erred in his assessment of Dr. Duong s 2 Opinions. First, although the ALJ did expressly reject Dr. Duong s opinions 3 regarding plaintiff s exertional limitations (i.e., that [plaintiff was] capable of less 4 than sedentary work ) (AR 25-26) (citing Exhibit 9F [AR 357-62]), the 5 administrative decision does not reflect that the ALJ addressed, much less 6 rejected, Dr. Duong s opinion that plaintiff had functional limitations related to 7 any mental impairment (e.g., depression). Nor does it appear that the ALJ 8 accounted for any such asserted mental limitations in plaintiff s residual functional 9 capacity assessment. 10 Second, although the ALJ determined that plaintiff s panic/anxiety attacks 11 were not severe, contrary to defendant s suggestion, it does not appear that the 12 ALJ s analysis at step two addressed whether plaintiff had a severe mental 13 impairment stemming from depression (e.g., whether Dr. Duong found functional 14 limitations related to depression which caused more than a minimal limitation in 15 plaintiff s ability to perform basic mental work activities). Even assuming, as 16 defendant suggests, that the ALJ included depression as one of plaintiff s non17 severe mental impairments, the ALJ s analysis and findings relative to the 18 severity/non-severity of such mental impairments is not supported by substantial 19 evidence because it is based on a flawed premise. At the hearing the ALJ stated 20 that [neither] a therapist or even [plaintiff s] primary care physician had 21 recommended that plaintiff take even a mild antidepressant or anti-anxiety 22 medicine. (AR 66). Nonetheless, as noted above, plaintiff s medical records 23 reflect that plaintiff was prescribed Fluoxetine, a medication used to treat major 24 depressive disorder and panic disorder (AR 160, 230, 233, 244, 283, 303, 307, 25 312, 324, 326, 328, 329, 330, 335, 337, 340, 343, 344, 350, 352, 375, 393, 420, 26 450). In addition, in the decision the ALJ stated that plaintiff testified that he was 27 never given any psychiatric medication. (AR 22, 66) (emphasis added). At the 28 hearing, however, plaintiff stated only that he was not given special medication 10 1 for his anxiety attacks. (AR 59-60) (emphasis added). Such inaccuracies in the 2 ALJ s interpretation of the record cannot support the ALJ s step two findings. 3 See, e.g., Regennitter v. Commissioner, 166 F.3d 1294, 1297 (9th Cir. 1999) 4 ( inaccurate characterization of record cannot serve as substantial evidence to 5 support ALJ s disability findings); Lesko v. Shalala, 1995 WL 263995 *7 6 (E.D.N.Y. Jan. 5, 1995) ( inaccurate characterizations of the Plaintiff s medical 7 record found to constitute reversible error). 8 Although, as defendant suggests, the ALJ may ultimately reject Dr. Duong s 9 opinion that plaintiff had functional limitations due to depression because such 10 opinion was based solely on plaintiff s subjective complaints, see Bayliss v. 11 Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (ALJ properly rejected opinion of 12 treating physician which was based in part on subjective complaints of claimant), 13 the ALJ did not do so in the administrative decision. This Court is constrained to 14 review the reasons cited by the ALJ. Connett v. Barnhart, 340 F.3d 871, 874 (9th 15 Cir. 2003) ( We are constrained to review the reasons the ALJ asserts. ); Orn, 495 16 F.3d at 630 ( We review only the reasons provided by the ALJ in the disability 17 determination and may not affirm the ALJ on a ground upon which he did not 18 rely. ). 19 Third, as noted below, the record suggests that additional limitations in 20 plaintiff s mental abilities could have a material impact on the ALJ s decision. 21 Therefore, to the extent the evidence regarding plaintiff s alleged depression was 22 ambiguous, or the record was inadequate to allow for proper evaluation of any 23 limitations related to depression, the ALJ should have developed the record on 24 that issue. See Breen v. Callahan, 1998 WL 272998, at *3 (N.D. Cal. May 22, 25 1998) (noting that, in the Ninth Circuit, the ALJ s obligation to develop the record 26 is triggered by the presence of some objective evidence in the record suggesting 27 the existence of a condition which could have a material impact on the disability 28 decision ) (citing Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)). 11 1 Finally, the Court cannot find the ALJ s error harmless. At the hearing, the 2 vocational expert suggested that if plaintiff, or a hypothetical person with 3 plaintiff s characteristics, had additional limitations in mental functioning, such 4 individual could not perform plaintiff s past relevant work. (AR 60-61). The 5 vocational expert also testified that, based on plaintiff s testimony regarding how 6 he actually performed his past relevant work, such hypothetical individual would 7 not have skills which could transfer to any other position. (AR 61-62). The Court 8 therefore cannot conclude that the vocational expert would have opined (or that 9 the ALJ relying upon such opinion would have determined) that plaintiff could 10 perform his past relevant job, or other work which exists in significant numbers in 11 the national economy, if the ALJ had included in the hypothetical question posed 12 to the vocational expert plaintiff s asserted additional mental limitations related to 13 depression. Accordingly, the Court cannot find the ALJ s error to be harmless. 14 V. CONCLUSION4 15 For the foregoing reasons, the decision of the Commissioner of Social 16 Security is reversed in part, and this matter is remanded for further administrative 17 action consistent with this Opinion.5 18 LET JUDGMENT BE ENTERED ACCORDINGLY. 19 DATED: February 1, 2012 20 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 21 22 23 4 The Court need not, and has not adjudicated plaintiff s other challenges to the ALJ s 24 decision, except insofar as to determine that a reversal and remand for immediate payment of 25 benefits would not be appropriate. 26 27 28 5 When a court reverses an administrative determination, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister, 888 F.2d at 603. 12
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