Angel Aguirre v. Michael J. Astrue, No. 2:2010cv09831 - Document 20 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, The decision of the Commissioner is reversed, and this matter will be remanded for further hearing consistent with this Memorandum Opinion. (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 ANGEL AGUIRRE, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-09831-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 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) properly 1 rejected the opinion of the long time treating mental health 2 professionals and portions of the consultative examiner s 3 opinion. 4 (JS at 3.) 5 6 This Memorandum Opinion will constitute the Court s findings of 7 fact and conclusions of law. After reviewing the matter, the Court 8 concludes 9 Commissioner must be reversed and the matter remanded. that for the reasons set forth, the decision of the 10 11 I 12 THE ALJ S REJECTION OF THE OPINION OF PLAINTIFF S TREATING 13 PSYCHIATRIST CANNOT BE SUSTAINED BASED UPON 14 THE REASONS OFFERED IN THE DECISION 15 As set forth in the parties Summary of the Case, Plaintiff s 16 application for Disability and SSI was initially rejected following an 17 August 15, 2007 hearing before an ALJ. (AR 490-504.) 18 decision finding Plaintiff not be disabled was issued on August 23, 19 2007. (AR 28-37.) Ultimately, the Appeals Council issued a remand 20 order. (AR 52-54.) This resulted in a second hearing for a new ALJ 21 (AR 505-526), and an unfavorable decision by that ALJ (AR 14-20). 22 The order of the Appeals Council did not The unfavorable require further 23 evaluation of Plaintiff s mental health issues, and consequently, in 24 the second decision, the ALJ adopted the rationale from the prior 25 decision, and thus provided no further discussion as to Plaintiff s 26 mental health. (See AR at 18.) 27 the first decision to determine whether the ALJ adequately assessed 28 the mental health evidence. Consequently, the Court will review For the reasons to be set forth, the 2 1 Court concluded that he did not. 2 In the first decision, the ALJ reviewed Plaintiff s mental health 3 history, 4 psychological examination ( CE ) from Dr. Brawer on July 19, 2006. (AR 5 35, 115-121.) 6 Questionnaire of July 10, 2007, which was described as a form ... 7 completed by the nurse and signed by the psychiatrist. (AR 35, 392- 8 397.) 9 psychiatrist, had reviewed the evidence and come up with an analysis 10 of Plaintiff s mental functional abilities. The ALJ concluded that he 11 would give[s] weight to these opinions as they are supported by the 12 objective medical evidence of record (SSR 96-6p). (AR 36.) Based on 13 the the 14 determined to give weight to the opinions of the CE and of the State 15 Agency psychiatrist, and to essentially reject the opinion of the 16 treating psychiatrist, Dr. Baig. 17 noting that Plaintiff had received a consultative The ALJ also briefly summarized a Mental Impairment Finally, the ALJ noted that Dr. Dudley, a State Agency context of the decision, the Court perceives that ALJ The Court must discern from the ALJ s decision why he determined 18 to reject the opinion of Dr. Baig. 19 the 20 completed by the nurse and only signed by the psychiatrist. 21 the Commissioner amplifies on this point in his portion of the JS in 22 arguing that the Questionnaire is essentially the opinion of the 23 nurse, and not that of the psychiatrist. 24 argues that the ALJ was entitled to give it less weight. 25 will address this concern, infra. 26 ALJ perceived that the patient s case manager, who was apparently 27 the same person as the nurse who was involved in the Questionnaire, 28 was an advocate for Plaintiff in his Social Security case because the ALJ perceived that the The first apparent reason is that Mental Impairment Questionnaire was Indeed, As such, the Commissioner The Court In addition, it appears that the 3 1 ALJ read the record as indicating, in his words, that, The case 2 manager visited the office of the claimant s attorney to strategize 3 for the claimant s hearing [citing AR at 347]. (AR 35.) 4 The ALJ reported that there were differences between the 5 conclusions of the treating psychiatrist in the Questionnaire and that 6 of the CE on issues such as Plaintiff s memory and concentration. (AR 7 36.) 8 Finally, the ALJ provided an overall basis for rejecting Dr. 9 Haig s opinion because it was not supported by, and is contradicted 10 by, the objective medical evidence of record, including the mental 11 health treatment notes. (AR 36.) 12 provided, however, as to what those contradictions are, and thus, the 13 Court is left with a bare conclusion which, as will be discussed, 14 provides no basis for review. No discussion whatsoever is 15 First, the Commissioner is incorrect in citing 20 C.F.R. §§ 16 404.1513 and 416.913 for the proposition that because a nurse or case 17 manager 18 psychiatrist, that evaluation is entitled to less weight, because it 19 is not, effectively, the evaluation of the psychiatrist, in this case, 20 the treating psychiatrist, Dr. Baig. 21 for that proposition, and moreover, there is no reported case of this 22 Court is aware which would support that claim. 23 set forth in the Questionnaire must be viewed as those of the treating 24 psychiatrist, Dr. Baig. was involved in preparing an evaluation signed by a These regulations do not stand As such, the opinion 25 The ALJ, and also the Commissioner, seem to believe that Dr. 26 Baig s opinion should also be depreciated because the case manager was 27 biased, and acting as an advocate for Plaintiff. To support this, the 28 ALJ and the Commissioner both point to Progress Notes of July 3, 2007, 4 1 apparently prepared by the case manager, which reference the upcoming 2 hearing on August 15, 2007 before the ALJ. 3 put quotes around the word strategize, apparently believing that 4 this word was contained in the Progress Notes. 5 a fair reading of the Progress Notes simply indicates that the case 6 manager wanted to make sure that all relevant records needed by 7 Plaintiff s attorney would be provided for use at the hearing. 8 Certainly, neither the ALJ or the Commissioner would dispute that full 9 and complete records should be provided so that a correct and adequate Indeed, as noted, the ALJ It is not. Moreover, 10 evaluation can be made of a Plaintiff s mental health condition. 11 Moreover, in the context of the Progress Notes, the Court finds 12 absolutely nothing wrong with the fact that the case manager helped to 13 prepare Plaintiff to appear at a hearing. 14 a case such as this, where even the ALJ found that Plaintiff suffers 15 from 16 moderate difficulties with concentration, persistence or pace. (AR 17 31.) 18 anxiety may experience such things as increased anxiety when preparing 19 for a stressful hearing. Thus, as a part of Plaintiff s mental health 20 treatment, the Court cannot fault his treating professionals with 21 preparing him to be able to undergo the stress of an administrative 22 hearing. In no manner do the records, however, indicate that the case 23 manager was biased because she might have been acting as an advocate 24 for Plaintiff. 25 stress of the hearing, and be able to adequately testify and describe 26 their condition, does not constitute the type of advocacy which would 27 render that mental health professional biased. 28 severe impairments of This is especially true in depression/anxiety (AR 30), and has It cannot be disputed that even a person without depression or Helping an individual to mentally prepare for the Turning to other issues, the ALJ s reliance on the State Agency 5 1 psychiatrist cannot be sustained, because there is an indication in 2 the record that this psychiatrist did not examine any of Plaintiff s 3 treatment records. ( There are no psychiatric treatment notes for 4 review, so a CE was purchased for this case. [AR 114.]) 5 while seemingly aware of the existence of treating psychiatrist, the 6 State Agency psychiatrist did not obtain, or perhaps was unable to 7 obtain, further information. ( The claimant is prescribed psychotropic 8 medications 9 responded. [Id.]) by his [sic] current treating source Further, who has not 10 Thus, what is left is the ALJ s statement that the treating 11 psychiatrist s assessment is not supported by and is contradicted by 12 the objective medical evidence of record, including the mental health 13 treatment notes. 14 does not even approach the specific, legitimate reasons which must 15 provided in an ALJ s decision so that the Court can conduct an 16 adequate review. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 17 1995). 18 might have meant by this conclusory statement in his decision is 19 simply a post-hoc evaluation which this Court will not give credence 20 to, because it is the decision which must be reviewed, not the 21 Commissioner s interpretation of it. This type of a generic and conclusory evaluation The Commissioner s multi-page explanation of what the ALJ 22 For the foregoing reasons, the decision of the Commissioner is 23 reversed, and this matter will be remanded for further hearing 24 consistent with this Memorandum Opinion. 25 IT IS SO ORDERED. 26 27 28 DATED: December 1, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 6
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