Tina Hong Nguyen v. Michael J. Astrue, No. 2:2011cv00115 - Document 15 (C.D. Cal. 2012)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is REVERSED. 2. This action is REMANDED to defendant for payment of benefits. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 TINA HONG NGUYEN, 13 Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) No. CV 11-115-CW DECISION AND ORDER 18 The parties have consented, under 28 U.S.C. § 636(c), to the 19 jurisdiction of the undersigned Magistrate Judge. Plaintiff seeks 20 review of the Commissioner s denial of supplemental security income 21 (SSI) benefits and disability insurance benefits (DIB). The court 22 finds this matter should be reversed and remanded for payment of 23 benefits. 24 I. BACKGROUND 25 Plaintiff was born on February 2, 1954, and was 54 years old at 26 the time of her administrative hearing. [Administrative Record ( AR ) 27 112.] She speaks limited English, completed a fourth-grade education 28 1 1 in Vietnam, and has past relevant work has a dishwasher and 2 seamstress. [AR 20.] Plaintiff alleges disability due to thyroid 3 disorder, high blood pressure, depression, and arthritis. [AR 133.] 4 5 II. PROCEEDINGS IN THIS COURT On October 6, 2011, the parties filed their Joint Stipulation 6 ( JS ) identifying matters not in dispute, issues in dispute, the 7 positions of the parties, and the relief sought by each party. 8 matter has been taken under submission without oral argument. 9 10 III. This PRIOR PROCEEDINGS Plaintiff applied for SSI and DIB benefits under Titles II and 11 XVI of the Social Security Act on October 1, 2006, alleging disability 12 since June 26, 2006. [AR 112-116.] After her application was denied 13 initially and upon reconsideration, Plaintiff requested a hearing. Her 14 hearing was held on August 5, 2008, before Administrative Law Judge 15 ( ALJ ) Keith Dietterle. [AR 35-54.] Plaintiff, with counsel, appeared 16 and testified with the aid of an interpreter. [AR 38-51.] The ALJ also 17 received testimony from vocational expert ( VE ) Jeanine Metildi. [AR 18 51-54.] 19 In a written decision issued October 9, 2008, the ALJ found that 20 Plaintiff was not disabled under the Act. [AR 21.] When the Appeals 21 Council denied review [AR 5-7] the ALJ s decision became the 22 Commissioner s final decision. 23 24 IV. These proceedings followed. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 25 Commissioner s decision to deny benefits. 26 ALJ s) findings and decision should be upheld if they are free of 27 legal error and supported by substantial evidence. 28 court determines that a finding is based on legal error or is not 2 The Commissioner s (or However, if the 1 supported by substantial evidence in the record, the court may reject 2 the finding and set aside the decision to deny benefits. 3 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 4 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 5 F.3d 1157, 1162 (9th Cir. 6 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 7 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 8 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 9 See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a 10 preponderance. Reddick, 157 F.3d at 720. 11 which a reasonable person might accept as adequate to support a 12 conclusion. 13 a finding, a court must review the administrative record as a whole, 14 weighing both the evidence that supports and the evidence that 15 detracts from the Commissioner s conclusion. 16 can reasonably support either affirming or reversing, the reviewing 17 court may not substitute its judgment for that of the Commissioner. 18 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. It is relevant evidence To determine whether substantial evidence supports 19 V. Id. If the evidence DISCUSSION 20 A. THE FIVE-STEP EVALUATION 21 To be eligible for disability benefits a claimant must 22 demonstrate a medically determinable impairment which prevents the 23 claimant from engaging in substantial gainful activity and which is 24 expected to result in death or to last for a continuous period of at 25 least twelve months. 26 721; 42 U.S.C. § 423(d)(1)(A). 27 28 Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at Disability claims are evaluated using a five-step test: Step one: Is the claimant engaging in substantial 3 1 gainful activity? 2 disabled. 3 If so, the claimant is found not If not, proceed to step two. Step two: Does the claimant have a severe impairment? 4 If so, proceed to step three. 5 If not, then a finding of not disabled is appropriate. 6 Step three: Does the claimant s impairment or 7 combination of impairments meet or equal an impairment 8 listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? 9 so, the claimant is automatically determined disabled. 10 If If not, proceed to step four. 11 Step four: Is the claimant capable of performing his 12 past work? 13 proceed to step five. 14 If so, the claimant is not disabled. If not, Step five: Does the claimant have the residual 15 functional capacity to perform any other work? 16 claimant is not disabled. If so, the If not, the claimant is disabled. 17 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 18 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 19 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 20 C.F.R. § 404.1520, § 416.920. 21 not disabled at any step, there is no need to complete further 22 steps. If a claimant is found disabled or Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. Claimants have the burden of proof at steps one through four, 23 24 subject to the presumption that Social Security hearings are non- 25 adversarial, and to the Commissioner s affirmative duty to assist 26 claimants in fully developing the record even if they are represented 27 by counsel. 28 1288. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at If this burden is met, a prima facie case of disability is 4 1 made, and the burden shifts to the Commissioner (at step five) to 2 prove that, considering residual functional capacity ( RFC )1, age, 3 education, and work experience, a claimant can perform other work 4 which is available in significant numbers. 5 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 6 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 7 Here, the ALJ found Plaintiff had not engaged in substantial 8 gainful activity since June 26, 2006, the application date, through 9 March 31, 2010, the date last insured (step one); that Plaintiff had 10 the severe impairment of major depressive disorder, not otherwise 11 specified (step two); and that Plaintiff did not have an impairment or 12 combination of impairments that met or equaled a listing (step 13 three). [AR 16.] 14 The ALJ found that Plaintiff had the RFC to perform simple, 15 repetitive tasks at all exertional levels. [AR 16.] Accordingly, he 16 concluded that Plaintiff can perform her past relevant work as a 17 dishwasher, but not as a seamstress (step four). [AR 20.] The ALJ did 18 not reach step five of the sequential evaluation and, based upon his 19 step four conclusion, found Plaintiff not disabled as defined by the 20 Social Security Act. [AR 20-21.] 21 C. ISSUES IN DISPUTE 22 The Joint Stipulation identifies as disputed issues whether: 23 1 24 25 26 27 28 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1. 1 2 psychiatrist Richard A. Hochberg, M.D.; 3 2. 4 The ALJ articulated legitimate reasons to reject Plaintiff s testimony regarding non-exertional limitations; and 5 3. 6 7 The ALJ properly evaluated the opinion of treating The ALJ s step four determination is supported by substantial evidence. [Joint Stipulation JS 3.] Issues one and two are dispositive. 8 D. 9 The parties first dispute whether the ALJ provided legally 10 sufficient reasons to discount the limitations opined by Plaintiff s 11 treating psychiatrist, Dr. Hochberg. 12 things, that Plaintiff has an extreme limitation in activities of 13 daily living, in maintaining social functioning, in maintaining 14 concentration, persistence and pace, and that she has had four or more 15 episodes of decompensation of extended duration in a twelve-month 16 period. [AR 253-65.] 17 ISSUE ONE: TREATING PHYSICIAN S OPINION Dr. Hochberg opined, among other The ALJ declined to credit Dr. Hochberg s opinion based upon a 18 finding that the doctor s assessment is inconsistent with substantial 19 medical evidence and is not supported by his own progress notes. [AR 20 19.] 21 evidence. 22 opinion was unsupported by his treating notes because, while the 23 doctor opined that Plaintiff s mental symptoms were worsening, he did 24 not increase her psychotropic medications or increase the regularity 25 of therapy sessions. [AR 19.] In fact, however, Plaintiff s medication 26 regimen was frequently increased or adjusted. 27 began by prescribing Lithium 10 mg, Seroquel 50 mg and Cymbalta 30 mg, 28 one month later he added Librium 10 mg and Ambien. [AR 191, 192.] The Neither justification finds the support of substantial record First, for example, the ALJ found that Dr. Hochberg s 6 While Dr. Hochberg 1 Librium was then increased to 25 mg and the Seroquel to 400 mg. [AR 2 189, 191.] Several months later, he increased the dosage of Seroquel 3 to 800 mg. [AR 251.] Additionally, with respect to the finding that 4 Dr. Hochberg s conclusions were not credible because he did not 5 increase the frequency of their appointments, Plaintiff testified in 6 response to a question relating to her treating internist that she did 7 not see him more regularly because she could not afford to do so. [AR 8 43.] 9 to obtain treatment due to lack of funds. Disability benefits may not be denied when the plaintiff failed Orn v. Astrue, 495 F.3d 10 625, 639 (9th Cir. 2007)(citing Gamble v. Chater, 68 F.3d 319, 321 11 (9th Cir.1995)). The ALJ did not make any finding with respect to 12 whether Plaintiff s finances may have impacted the frequency of her 13 sessions with Dr. Hochberg and, consequently, his finding is likewise 14 legally insufficient in this regard. The ALJ s conclusion that Dr. Hochberg s opinion was contradicted 15 16 by other substantial evidence of record is likewise legally 17 insufficient. 18 conflicted with that of one-time examining psychologist Steven I. 19 Brawer, Ph.D. 20 evidence supporting rejection of a treating physician s opinion, 21 however. 22 significantly impaired in many realms of her mental functioning. [AR 23 218-24.] Although Dr. Brawer concluded that none of the results were 24 conclusive because Plaintiff made poor effort, he did not state a 25 definitive opinion about her mental abilities. 26 Brawer s report and conclusions are highly equivocal. Just a few 27 examples of his this are as follows: 28 # The ALJ concluded, first, that Dr. Hochberg s opinion Dr. Brawer s report does not constitute substantial According to the tests Dr. Brawer performed, Plaintiff is To the contrary, Dr. [T]he claimant appears to be able to learn simple, repetitive 7 tasks, 1 2 # extended periods of time may be mildly limited, 3 4 [H]er ability to sustain attention and concentration for # [G]iven her test behavior the claimant would likely have 5 significant difficulty with persisting despite obstacles and 6 sustaining stamina, and 7 # [T]he claimant may be mildly impaired in her ability to sustain 8 cooperative relationships with coworkers and supervisors. 9 [AR 224-225.] Even to the extent these uncertain statements could be 10 deemed an opinion by Dr. Brawer, they are not such substantial 11 evidence that would justify a rejection of the treating psychiatrist s 12 conclusions. 13 1995)(generally, more weight should be given to the opinion of a 14 treating source; even if that doctor s opinion is contradicted, it may 15 not be rejected absent a finding of specific and legitimate reasons 16 supported by substantial record evidence). 17 See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. Relatedly, the ALJ cited the state agency physician reports in 18 finding that Dr. Hochberg s opinions were contradicted and not 19 entitled to controlling weight. But the state agency opinion was 20 derived from only partial reports of Dr. Hochberg and from Dr. 21 Brawer s evaluation [AR 235, 238], which the court has already 22 concluded does not itself constitute substantial evidence to reject 23 Dr. Hochberg s opinions. Thus, the state agency s derivative finding 24 is equally insufficient. See Lester, 81 F.3d at 829 (the opinion of a 25 non-examining medical advisor may not, without the support of other 26 evidence of record, constitute substantial evidence that justifies the 27 rejection of the opinion of either an examining or treating 28 physician). 8 1 Accordingly, because the assessment of Dr. Hochberg s testimony 2 lacks the support of substantial record evidence, reversal is 3 warranted. 4 B. ISSUE TWO: PLAINTIFF S CREDIBILITY 5 Plaintiff next contends the ALJ improperly assessed her 6 credibility. The ALJ found Plaintiff not to be credible primarily in 7 that she remained able to perform personal grooming, her testimony and 8 demeanor did not suggest mental limitations, she was not treated with 9 pain medication to the extent that one would expect given her pain 10 allegations, and she admitted to an examining physician that she 11 initially stopped working because her employer s business closed down. 12 [AR 19.] 13 Here, notwithstanding Dr. Brawer s suggestion to rule out 14 malingering based upon Plaintiff s suboptimal effort on psychological 15 testing [AR 223], there is not affirmative evidence of malingering in 16 this record, and the ALJ did not make an explicit finding of 17 malingering. 18 malingering, the ALJ may reject a Plaintiff s testimony only based 19 upon clear and convincing reasons that find the support of substantial 20 record evidence. See 21 1228, 1235 (9th Cir. 2011)(absent explicit finding of malingering 22 clear and convincing standard applies); Carmickle v. Comm r of Social 23 Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008). 24 standard, the ALJ s credibility finding in this case fails. 25 Absent affirmative evidence or an explicit finding of Taylor v. Comm r of Soc. Sec. Admin., 659 F.3d Under this First, the conclusion that Plaintiff is able to work because she 26 can take care of personal grooming is legally insufficient. A 27 plaintiff need not be utterly incapacitated in order to be found 28 disabled; the mere fact that a plaintiff is able to carry on some 9 1 basic daily activities, such as self-grooming, does not detract from 2 plaintiff s credibility on the ultimate issue of disability. 3 v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). 4 Astrue, 495 F.3d 625, 639 (9th Cir. 2007)(holding that plaintiff s 5 daily activities of coloring in coloring books and watching television 6 did not meet the threshold for transferable work skills to use such 7 activities in the credibility determination). Vertigan See also Orn v. 8 Second, an inference that Plaintiff lacks credibility because she 9 stated that she initially stopped working when her employer s business Cf. Carmickle v. Comm r 10 shut down is likewise not a reasonable one. 11 of Soc. Sec. Admin., 553 F.3d at 1162 (rejecting the ALJ s conclusion 12 that the plaintiff lacked credibility simply because he was receiving 13 unemployment benefits). Third, while a conservative course of treatment can undermine 14 15 allegations of debilitating pain, such a fact is not a proper basis 16 for rejecting the plaintiff s credibility where, as here, the 17 plaintiff has a good reason for not seeking more aggressive treatment. 18 Carmickle, 533 F.3d at 1162 (citing Orn v. Astrue, 495 F.3d 625, 638 19 (9th Cir. 2007). 20 extensive treatment for pain because she could not afford to, a 21 contention which the ALJ did not address. Here, Plaintiff testified that she did not seek more Reversal is thus appropriate for the additional reason that the 22 23 ALJs credibility determination is not supported by substantial 24 evidence of record. 25 F. 26 REMAND FOR PAYMENT OF BENEFITS The decision whether to remand for further proceedings is within 27 the discretion of the district court. 28 1175-1178 (9th Cir. 2000). Harman v. Apfel, 211 F.3d 1172, Where there are outstanding issues that 10 1 must be resolved before a determination can be made, and it is not 2 clear from the record that the ALJ would be required to find the 3 claimant disabled if all the evidence were properly evaluated, remand 4 is appropriate. 5 be served by further proceedings, or where the record has been fully 6 developed, it is appropriate to exercise this discretion to direct an 7 immediate award of benefits. 8 further proceedings turns upon their likely utility). 9 Id. at 1179. However, where no useful purpose would Id. (decision whether to remand for Here, because the ALJ s evaluation of Dr. Hochberg s opinion was 10 materially in error, as was the evaluation of Plaintiff s subjective 11 statements, the rejected evidence is credited as true. Vasquez v. 12 Astrue, 572 F.3d 586, 594 (9th Cir. 2009)( [T]he purpose of the 13 credit-as-true rule is to discourage ALJs from reaching a conclusion 14 about a claimant s status first, and then attempting to justify it by 15 ignoring any evidence in the record that suggests an opposite 16 result. ) 17 could not sustain competitive employment. 18 testimony alone establishes that due to a combination of physical and 19 mental symptoms she is unable even to sustain basic work attendance 20 for an eight-hour workday and five-day work week. [See AR 37-51.] 21 This is buttressed by the opinion of Dr. Hochberg that Plaintiff has 22 extreme limitations in her mental functioning, attention and pace, 23 social functioning, and that she has had regular and significant 24 episodes of decompensation. [AR 265.] The VE testified that such an 25 individual would be precluded from working. [AR 53.] 26 combination of evidence, it is clear that plaintiff must be found 27 disabled. 28 proceedings, and an order directing an immediate award of benefits is When credited, the evidence establishes that plaintiff Specifically, Plaintiff s Based upon this Accordingly, no useful purpose would be served by further 11 1 appropriate. V. 2 ORDERS 3 Accordingly, IT IS ORDERED that: 4 1. The decision of the Commissioner is REVERSED. 5 2. This action is REMANDED to defendant for payment of 6 7 8 benefits. 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 9 10 11 12 DATED: January 3, 2012 ________________________________ CARLA M. WOEHRLE United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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