Fernando Gutierrez v. Michael J. Astrue, No. 2:2010cv08960 - Document 15 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Carla Woehrle, The decision of the Commissioner is reversed, and the matter is remanded for further proceedings in accordance with the decision, pursuant to Sentence 4 of 42 U.S.C. § 405(g). (SEE ORDER FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 10 11 FERNANDO GUTIERREZ, 12 13 14 15 16 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No.: CV 10-08960 (CW) MEMORANDUM DECISION AND ORDER 17 18 19 20 21 22 23 24 25 26 I. SUMMARY This matter is before the Court for review of the Social Security Commissioner s decision denying Plaintiff s application for Disability Insurance Benefits and Supplemental Security Income under Titles II and XVI of the Social Security Act. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the undersigned may handle the case. The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. Plaintiff and Defendant have filed their pleadings (Joint Stipulation For Social Security Case), and Defendant has filed 27 28 1 1 the certified transcript of record. After reviewing the matter, the Court concludes 2 that the Commissioner s decision should be remanded. 3 4 5 II. BACKGROUND Plaintiff Fernando Gutierrez ( Plaintiff ) applied for Disability Insurance 6 Benefits and Supplemental Security Income ( SSI ) on April 16, 2008, and again 7 for SSI on July 16, 2008, alleging inability to work since June 29, 2007. 8 Administrative Record ( AR ) 105-120. An administrative hearing was held on 9 February 17, 2010. AR 23-47. On March 22, 2010, an Administrative Law 10 Judge ( ALJ ) determined that Plaintiff was not disabled within the meaning of 11 the term under the Social Security Act. AR 9-18. Following the Appeals 12 Council s denial of Plaintiff s request for a review of the hearing decision, 13 Plaintiff filed an action in this Court. AR 1-8. After reviewing the matter, the 14 Court finds that the Commissioner s decision should be reversed and remanded. 15 16 III. DISCUSSION 17 Plaintiff challenges the decision on the grounds that, first, the ALJ 18 improperly disregarded Plaintiff s treating psychologist s opinion in the ALJ s 19 determination of Plaintiff s residual functional capacity ( RFC ), and, second, 20 that the ALJ failed to properly account for Plaintiff s severe obesity in the five- 21 step sequential evaluation process for determining whether a claimant has a 22 disability. Plaintiff alleges legal error by the ALJ on both issues. For the 23 reasons discussed below, the Court concludes that while Plaintiff s first claim 24 has merit it amounts to harmless error, and that the second claim of error also has 25 merit, but requires reversal and remand for further proceedings. 26 27 28 2 1 A. ISSUE NO. ONE: 2 Plaintiff first claims that the ALJ improperly gave little weight to the 3 opinion of the treating psychologist in the determination that Plaintiff s mental 4 limitations notwithstanding, he retained sufficient RFC to engage in work that 5 exists in significant numbers in the national economy. Defendant argues that the 6 ALJ s disregard of the treating psychologist s opinion was legitimate. 7 The Social Security Regulations set forth a five-step sequential evaluation 8 process for determining whether a claimant is disabled. 20 C.F.R. § 404.1520; 9 see Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see Social Security 10 Ruling ( SSR ) 82-62. If the ALJ determines that a claimant s impairment is 11 severe in step two, then the ALJ must determine in step three whether a claimant 12 meets or exceeds a listed impairment. 20 C.F.R. §§ 404.1525, 404.1526, 13 416.925, 416.926. 14 A claimant s treating doctors opinions usually carry substantial weight in 15 the step three determination because the treating professional is hired to cure and 16 has the opportunity to come to know the claimant s impairments in detail. 17 Valentine v. Comm r of Soc. Sec., 574 F.3d 685, 692 (9th Cir. 2009); Connett v. 18 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); Thomas v. Barnhart, 278 F.3d 947, 19 956-57 (9th Cir. 2002). However, the ALJ may disfavor or completely disregard 20 the opinion of a treating physician for clear and convincing reasons. Lester v. 21 Chater, 81 F.3d 821, 830 (9th Cir. 1995). In so doing, the ALJ must specifically 22 enumerate the reasons with the support of substantial evidence in the record. Id. 23 at 830-31; see also Orn v. Astrue, 495 F.3d 625, 631-2 (9th Cir. 2007); Ryan v. 24 Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). The ALJ may 25 disregard a treating physician s conclusory opinions as well as those not 26 supported by the administrative record as a whole. Batson v. Comm r of Soc. 27 Sec., 359 F.3d 1190, 1195 (9th Cir. 2004); Matney v. Sullivan, 981 F.2d 1016, 28 1019 (9th Cir. 1992). If another doctor contradicts the treating physician s opinion, the ALJ may reject that opinion, but, again, only with legitimate reasons 3 1 based on substantial evidence in the record. Lester, 81 F.3d at 830-31. The ALJ 2 meets the standard to disregard the treating physician s opinion by setting out a 3 detailed summary of the facts and conflicting clinical evidence, stating his 4 interpretation thereof, and making findings. Embry v. Bowen, 849 F.2d 418, 5 421 (9th Cir. 1988). 6 Here, the ALJ gave little weight to the opinion of the treating 7 psychologist, Arturo Fiero, Ph.D. AR 16. Dr. Fiero opined in his concluding 8 report that Plaintiff fit the clinical profile of a chronically disabled [person] 9 w[ith] a permanent impairment. AR 271. The ALJ asserted in his decision that 10 Dr. Fierro s opinion was unsupported by the longitudinal record or by Dr. 11 Fierro s own treatment notes. AR 16. The ALJ offered no other support for his 12 conclusion regarding Dr. Fierro s opinion and therefore did not meet the standard 13 of a detailed summary of the facts and conflicting clinical evidence. Embry, 14 849 F.2d at 421. The ALJ s failure to set forth specific facts that led to clear and 15 convincing reasons for disregarding Dr. Fierro s opinion constitutes legal error. 16 However, in light of Dr. Fierro s treatment notes and the treatment notes and 17 conclusions of Plaintiff s two other treating mental health professionals, Dr. Sim- 18 on Chin, M.D., who is a psychiatrist, and Dr. Rhoda Bernardez, M.D., also a 19 psychiatrist, the ALJ s conclusion would have been the same. AR 213-20, 351- 20 65. 21 Dr. Fierro s treatment notes, or his longitudinal record, characterize 22 Plaintiff as a patient on the mend. AR 338-49. When Plaintiff s treatment began 23 in October of 2007, Dr. Fierro observed that his relations with his family were 24 dysfunctional, he was depressed, subject to panic attacks, in physical pain, 25 and generally not doing well. AR 346-48. By January 15, 2008, after four 26 sessions, Dr. Fierro reported that P[atien]t is recovering from physical 27 disability, [and] needs time off to recover. AR 341. The same progress report 28 noted that Plaintiff had never been hospitalized for a psychiatric condition, that while his family relationships were impaired, he was not having suicidal or 4 1 homicidal ideation, not subject to binging or purging, not having psychotic 2 symptoms, and not engaging destructive behavior toward himself, others, or 3 towards property. The report noted that Plaintiff s Global Assessment of 4 Functioning score ( GAF ), a widely used general metric of mental health, was 5 41, indicating fairly serious difficulties, but the report also noted that within the 6 past year, Plaintiff s GAF had been at 69, indicating mild symptoms. Id. 7 Furthermore, the treatment notes from the same day indicated a high capacity 8 to engage in and benefit from treatment. AR 342. 9 Over the next four months, Plaintiff appeared to show improvement. His 10 capacity to benefit from treatment remained high. AR 338-40. He was 11 helping out a friend stricken with AIDS, for whom he said he felt compassion. 12 AR 338-39. He said he wanted to return to work, though not necessarily to the 13 same job. AR 339. 14 Nevertheless, despite what appears to have been some improvement by 15 Plaintiff, Dr. Fierro s final Mental Assessment two months after their last session 16 painted a dark picture. The final assessment consisted of twenty check-box 17 observations, on which Dr. Fierro checked moderately limited for only four 18 items, while for the rest he checked markedly limited. AR 268-71. In the 19 space for narrative observations, Dr. Fierro concluded that Plaintiff had severe 20 functional [physical and psychological] impairment, and that the problems 21 appear[ed] chronic and permanent. AR 270. The inconsistency between the 22 longitudinal notes and the final assessment constitutes a basis to disregard the 23 opinion. Batson, 359 F.3d at 1195. 24 Dr. Chin saw Plaintiff from October 2007 to April 2008. AR 213-20. Dr. 25 Chin s notes also show an improving trend. On his last set of notes, Dr. Chin 26 indicated that Plaintiff s condition was stable, and that his treatment progress 27 had been Satisfactory. While not a wholly positive report, the notes indicate 28 overall progress. Dr. Bernardez saw Plaintiff from August 2008 to July 2009, after both Dr. Fierro and Dr. Chin. Dr. Bernardez s early notes in September 5 1 2008, describe Plaintiff as cooperative, verbal, and spont[aneous], and 2 possessing an affect approp[riate] to [his] mood. AR 364. She also observed 3 that his compliance with his medication regimen was poor. AR 364. By November, 2008, Plaintiff s medication adherence was good, he was 4 5 fairly groomed, very polite, verbal [and] engaging, and he was self-reporting 6 that his mood was stable. AR 357. In March, 2009, despite continuing anxiety 7 for which he continued to take medication, Plaintiff self-reported ongoing mood 8 stability, the doctor noted that his medication adherence remained good, and 9 that his affect remained approp[riate]. AR 355. Finally, in July 2009, the 10 doctor noted that Plaintiff stated a desire to do vol[unteer] work , he continued 11 on a good footing with his medication, and he continued to be articulate and 12 engaged . AR 353. Though neither Dr. Chin nor Dr. Bernardez indicated that 13 Plaintiff had achieved full recovery, or that he was not still having problems, 14 neither of them asserted or implied that he was fully incapable of doing any work 15 at all. 16 Therefore, taking into account the treatment records of all three treating 17 mental health professionals, the ALJ s conclusion that Plaintiff retained 18 sufficient RFC would not have been different even if had he properly parsed Dr. 19 Fierro s opinion. Although the ALJ erroneously set aside Dr. Fierro s opinion, 20 his error was harmless because the ALJ s conclusion was correct nonetheless. 21 Stout v. Comm r Soc. Sec., 454 F.3d 1050, 1055 (9th Cir. 2005) ( We have also 22 affirmed under the rubric of harmless error where the mistake was . . . irrelevant 23 to the ALJ s ultimate disability conclusion. ). 24 B. ISSUE NO. TWO: 25 Plaintiff next alleges that given the finding of severe obesity the ALJ 26 failed to properly incorporate obesity into the five-step evaluation to determine 27 whether Plaintiff had a disability. Defendant counters that the ALJ did properly 28 consider Plaintiff s obesity at each step of his evaluation. 6 1 In the five-step evaluation, discussed above, where there is evidence of 2 obesity, the ALJ must determine the effect of the claimant s obesity upon his 3 other impairments, his ability to work, and his general health. Celaya v. Halter, 4 332 F.3d 1177, 1181 (9th Cir. 2003); SSR 02-01p. The Social Security 5 Administration removed obesity from the listing of impairments in 1999, but 6 where a claimant s condition falls short of the criterion for a listed condition and 7 the claimant is severely obese, the five-step analysis should include the 8 claimant s obesity. Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005); Celaya, 9 332 F.3d at 1181; SSR 02-01p. A claimant s obesity should be considered when 10 the record indicates that the obesity exacerbates other impairments. Burch, 400 11 F.3d at 682. 12 The ALJ did find that Plaintiff s obesity was severe. AR 11. Yet, after 13 setting forth that severity in step two, the ALJ mentioned obesity only one more 14 time in his analysis, in connection with a determination that Plaintiff s ability to 15 concentrate was limited. AR 13. Otherwise, in step three, in the RFC 16 assessment, in step four, and in step five, the ALJ failed to discuss Plaintiff s 17 obesity. AR 12-18. 18 In his step three analysis regarding whether Plaintiff had an impairment or 19 combination of impairments that met or exceeded one of the listed impairments, 20 the ALJ should have discussed Plaintiff s severe obesity in a multiple 21 impairment analysis. 20 C.F.R. § 404.1526(b)(3); Lewis v. Apfel, 236 F.3d 503, 22 514 (9th Cir. 2001); SSR 02-01p. When a claimant s obesity is undisputed the 23 ALJ must evaluate the obesity throughout the five-step evaluation. Celaya, 332 24 F.3d at 1182. According to the ALJ, Plaintiff did have multiple impairments 25 aside from severe obesity: severe lumbar degenerative disease, status post fusion 26 surgery, and depressive disorder. AR 11-12. The ALJ did expressly assert that 27 neither the lumbar degenerative disease nor the status post fusion surgery met or 28 equaled a listed impairment. AR 12. However, the ALJ did not expressly discuss obesity in combination with either or both of the above impairments, nor 7 1 was it discussed in combination with Plaintiff s depressive disorder, nor were all 2 four impairments considered as possibly equaling a listed impairment. A 3 complete evaluation required express consideration of the above alternatives to a 4 listed impairment. 5 Additionally, the RFC assessment should have contained a discussion of 6 obesity in the context of an assessment of limitation of function. SSR 02-01p. 7 However, the ALJ s failure to account for Plaintiff s obesity in step four did not 8 prejudice Plaintiff because the ALJ determined Plaintiff was not capable of 9 performing his PRW. AR 16. 10 Finally, the ALJ failed to consider Plaintiff s obesity in the step five 11 determination that Plaintiff had the ability to perform work that exists in 12 substantial numbers in the national economy. AR 17-18. In conducting the 13 analysis for step five, the ALJ may call a vocational expert ( VE ). Thomas v. 14 Barnhart, 278 F.3d 947, 956 (9th Cir. Or. 2002); Andrews v. Shalala, 53 F.3d 15 1035, 1043 (9th Cir. 1995). The ALJ must present the VE with various 16 hypothetical descriptions of different abilities and limitations that match those of 17 the Plaintiff. Id. at 1044. The ALJ must include all substantiated limitations in 18 the hypothetical descriptions, particularly obesity when it is severe. Robbins v. 19 Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006); Burch, 400 F.3d at 682. 20 The ALJ properly called a VE to assist with the step five determination, 21 The ALJ s hypothetical descriptions to the VE encompassed limitations such as 22 how long a person could stand or sit, how much weight a person could lift, 23 whether a job required occasional crouching, whether a job required interacting 24 with the public, and whether a person had limitations on his ability to 25 concentrate. AR 42-46. However, none of the hypothetical descriptions posed 26 to the VE set forth obesity. Given that Plaintiff s obesity was deemed severe, the 27 ALJ had an obligation to expressly include it. The failure to include obesity as a 28 limitation for the VE to consider was improper. Thus the ALJ erred in his 8 1 determination of the Plaintiff s capability to perform other work in the national 2 economy. 3 IV. CONCLUSION 4 5 For the foregoing reasons, the decision of the Commissioner is reversed, 6 and the matter is remanded for further proceedings in accordance with the 7 decision, pursuant to Sentence 4 of 42 U.S.C. § 405(g). 8 9 10 DATED: August 31, 2011 ________________/s/__________________ 11 12 CARLA WOEHRLE UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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