Lewis Kaplanski v. Michael J Astrue, No. 2:2011cv10644 - Document 15 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For these reasons, the Agency's decision is reversed and the case is remanded for further consideration. IT IS SO ORDERED. (ca)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 LEWIS KAPLANSKI, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 11-10644-PA (PJW) MEMORANDUM OPINION AND ORDER 16 17 I. 18 INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration ( the Agency ), denying his application for 20 Supplemental Security Income ( SSI ) and Disability Insurance Benefits 21 ( DIB ). 22 when she rejected the treating psychiatrist s opinion that he was 23 disabled and accepted the reviewing psychiatrist s opinion that he was 24 not. 25 the case is remanded for further consideration. 26 II. 27 28 He claims that the Administrative Law Judge ( ALJ ) erred For the reasons discussed below, the decision is reversed and SUMMARY OF PROCEEDINGS In March 2009, Plaintiff applied for SSI and DIB, alleging that he was disabled as of May 2005, due to bipolar disorder and 1 depression. (Administrative Record ( AR ) 131-35, 148.) 2 applications were denied initially and on reconsideration. 3 78, 79, 80, 83-99.) 4 before an ALJ. 5 counsel for the hearing. 6 issued a decision denying benefits. 7 to the Appeals Council, which denied review. 8 followed. (AR 77, He then requested and was granted a hearing (AR 42-43.) On June 14, 2010, he appeared with (AR 47-73.) 9 10 His III. On June 30, 2010, the ALJ (AR 19-28.) Plaintiff appealed (AR 1-6.) This action ANALYSIS Plaintiff contends that the ALJ erred when he rejected the 11 opinion of the treating psychiatrist that Plaintiff s bipolar disorder 12 prevented him from working and accepted, instead, the opinion of the 13 reviewing psychiatrist that it did not. 14 following reasons, the Court concludes that the ALJ erred. 15 (AR 26-27.) For the By rule, the [Agency] favors the opinion of a treating physician 16 over non-treating physicians. 17 Cir. 2007); see also Morgan v. Comm r, 169 F.3d 595, 600 (9th Cir. 18 1999) (explaining that a treating physician s opinion is given 19 deference because he is employed to cure and has a greater 20 opportunity to know and observe the patient as an individual 21 (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987))). 22 that reason, generally speaking, a treating physician s opinion that 23 is well-supported and not inconsistent with other substantial evidence 24 in the record will be given controlling weight. 25 Orn v. Astrue, 495 F.3d 625, 631 (9th For Orn, 495 F.3d at 631. That being said, however, an ALJ is not required to simply accept 26 a treating doctor s opinion. Where, as here, the opinion is 27 contradicted by another doctor s opinion, the ALJ is empowered to 28 reject it for specific and legitimate reasons that are supported by 2 1 substantial evidence in the record. 2 947, 957 (9th Cir. 2002) (quoting Magallanes v. Bowen, 881 F.2d 747, 3 751 (9th Cir. 1989)); Morgan, 169 F.3d at 600. 4 See Thomas v. Barnhart, 278 F.3d Psychiatrist Vy Doan treated Plaintiff from July 2005 through 5 September 2010. (AR 229-328, 359-62.) Throughout this period, Dr. 6 Doan consistently diagnosed him with bipolar disorder and treated him 7 with psychotropic medication. 8 Doan prepared three evaluations in connection with Plaintiff s 9 application for benefits. (AR 229, 278, 288, 328, 360-61.) Dr. In each, he opined that Plaintiff s 10 condition would interfere with his ability to function in the 11 workplace. 12 2010, Dr. Doan concluded that Plaintiff would be required to miss more 13 than three days of work each month and that he would often experience 14 difficulty concentrating at work and completing tasks. 15 (AR 326-28, 356-57, 359-62.) For example, in September (AR 362.) The ALJ rejected Dr. Doan s opinion because it was on a check- 16 the-box form. (AR 26.) Though the Court would agree that, generally 17 speaking, this is a legitimate reason for rejecting a doctor s 18 opinion, see, e.g., Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) 19 (approving of ALJ s discounting of doctor s opinion because, among 20 other things, it was contained in a check-the-box form and did not 21 include an explanation for the opinion), the ALJ s reliance on that 22 reason in this case was a mistake. 23 Dr. Doan s three opinions was on a check-the-box form. 24 The other two were presented on forms that required Dr. Doan to 25 explain the reasons for his views. 26 assuming that Dr. Doan s opinions were contained on check-the-box 27 forms, that would not be a sufficient reason for discounting them in 28 this case because the reviewing psychiatrist s opinion--that the ALJ In the first place, only one of (AR 356-57.) (AR 326-28, 359-62.) 3 Second, even 1 relied on in lieu of Dr. Doan s opinion-- was also contained on a 2 check-the-box form. 3 require that, if an ALJ is going to reject the treating doctor s 4 opinion because it is on a check-the-box form, she has to apply this 5 same rule to the reviewing doctor s opinion; she cannot accept a 6 check-the-box opinion that supports her decision and reject the ones 7 that do not.1 8 9 (AR 329-44.) Fundamental notions of due process The ALJ also rejected Dr. Doan s opinion because it was not well supported. (AR 26.) In the ALJ s view, Dr. Doan s records did not 10 reveal the sort of clinical abnormalities one would expect if the 11 claimant were actually as limited as assessed . . . . 12 Plaintiff argues that the ALJ was applying her own medical expertise 13 in reaching this conclusion. 14 disagrees. 15 Doan s opinion because it was not supported by his treatment notes, 16 citing Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003). 17 the Court sides with Plaintiff. (Joint Stip. at 10-11.) (AR 26.) The Agency It argues that the ALJ was legitimately questioning Dr. Again, 18 The Court is unclear as to what clinical abnormalities were 19 missing from Dr. Doan s records and what the basis was for the ALJ s 20 finding that they were missing. 21 July 2005, Dr. Doan treated Plaintiff for bipolar disorder, seeing him 22 on average every two or three months. The record reveals that, beginning in (AR 229-328.) During this 23 24 25 26 27 28 1 The ALJ also relied on reviewing psychiatrist R.E. Brooks opinion. (AR 26-27, 351.) This opinion is contained on a single sheet, which appears to have been filled out almost completely by a social security employee, requesting Dr. Brooks to Please affirm. (AR 351.) Dr. Brooks then apparently inserted the words, Evidence reviewed, assessment affirmed - Dr. Brooks, 08/05/09. (AR 351.) This opinion, assuming that that is what it is, is obviously significantly less valuable than a check-the-box opinion. 4 1 period, Dr. Doan recorded various observations about Plaintiff s 2 condition and his treatment. 3 showed improvement; at times he noted that Plaintiff did not. 4 end of that five-year period, Dr. Doan repeated his initial diagnosis 5 of bipolar disorder and offered his opinion as to how this disorder 6 would impact Plaintiff s ability to function, particularly in the 7 workplace. At times, Dr. Doan noted that Plaintiff At the (AR 359-62.) 8 The ALJ--without citation to any authority or any medical 9 testimony--concluded that Dr. Doan s notations were not consistent 10 with what she would expect to see if Plaintiff truly suffered from 11 bipolar disorder. 12 questioning Dr. Doan s opinion. 13 there are some medical conditions, for example, a broken bone, that 14 fall within the realm of common sense and shared experience among lay 15 people, like judges, who could fairly predict what should be found in 16 a medical record, bipolar disorder does not appear to the Court to be 17 one of those conditions. 18 one should expect to see in a psychiatrist s chart notes for a patient 19 with bipolar disorder. 20 reason for discounting Dr. Doan s opinion.2 (AR 26.) This is not a legitimate basis for Though the Court would agree that The Court cannot say with any certainty what As such, the Court rejects the ALJ s second 21 22 23 24 25 26 27 28 2 From the tenor of the ALJ s decision, it is clear that she has extensive experience in social security cases in general and in cases involving psychiatric impairments specifically. Thus, the Court assumes that she has seen numerous applications where the claimant suffered from bipolar disorder and, having reviewed the medical records in those cases, has an understanding of what is typically found in the chart notes of a bipolar patient. Assuming this is true, however, the ALJ is still not allowed to use her background and experience to find that the treating psychiatrist s chart notes in this case do not contain the type of clinical abnormalities typically found in a bipolar patient s medical records. 5 1 Finally, the ALJ noted that Dr. Doan failed to provide an 2 explanation for the disconnect between what the ALJ expected would be 3 in the chart notes and what she actually found in the chart notes. 4 (AR 26.) 5 explained above, the ALJ did not provide any basis for her conclusion 6 that something was missing from the chart notes. 7 Doan s reports is missing two of five pages. 8 report, which is contained on a Mental Disorder Questionnaire Form, 9 contains Dr. Doan s most extensive explanations for his opinion. This finding is rejected for two reasons. First, as Second, one of Dr. (AR 326-28.) This 10 327-28.) 11 pages reveal the basis for Dr. Doan s opinion. 12 fn. 4.)) 13 record. 14 that Dr. Doan s opinion should be disregarded because it was not 15 explained where it is clear that a significant part of Dr. Doan s 16 (AR explanation was left out of the record. 17 (In fact, Plaintiff argues in the brief that the missing (Joint Stip. at 8-9, It is not clear why the pages did not make it into the But, regardless, the Court cannot affirm the ALJ s finding In sum, the ALJ erred in accepting the reviewing psychiatrists 18 opinions that Plaintiff was not impaired by his bipolar disorder over 19 the treating psychiatrist s opinion that he was. 20 parties should obtain a copy of Dr. Doan s report and include it in 21 the record. 22 opinions. 23 rejected for that reason alone, she should reject all check-the-box 24 opinions for that reason. 25 Doan s records are inconsistent with his opinion in that they do not 26 contain the clinical abnormalities typically found in the medical 27 records of a patient suffering from bipolar disorder, she should 28 explain what is missing and the basis for her finding that it is On remand, the Thereafter, the ALJ should reassess the psychiatrists If she determines that check-the-box opinions should be Finally, if the ALJ believes that Dr. 6 1 missing. 2 Presumably, this will require the testimony of a medical expert. 3 4 5 IV. CONCLUSION For these reasons, the Agency s decision is reversed and the case is remanded for further consideration.3 6 IT IS SO ORDERED. 7 DATED: October 25, 2012 8 9 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 S:\PJW\Cases-Soc Sec\KAPLANSKI, 10644\memorandum opinion and order.wpd 25 26 27 28 3 The Court has considered Plaintiff s request that the case be remanded for an award of benefits and finds that this relief is not warranted here because it is not clear whether Plaintiff is entitled to benefits. 7

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