Andy Quach v. Michael J Astrue, No. 2:2012cv01674 - Document 20 (C.D. Cal. 2012)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton re: REQUEST to Proceed In Forma Pauperis, Declaration in Support 1 . This matter will be remanded for further hearing pursuant to the instructions set forth in this Opinion. (rh)
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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 ANDY QUACH, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-01674-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 ) erred in the 1 assessment 2 of Plaintiff s mental residual functional capacity; 3 2. Whether the ALJ erred in the credibility findings; and 4 3. Whether the ALJ erred in relying on the vocational experts 5 6 response to his incomplete hypothetical question. (JS at 2-3.) 7 8 This Memorandum Opinion will constitute the Court s findings of 9 fact and conclusions of law. After reviewing the matter, the Court 10 concludes that for the reasons set forth, the decision 11 of the Commissioner must be reversed and the matter remanded. 12 13 I 14 THIS CASE WILL BE REMANDED FOR FURTHER EVALUATION OF 15 PLAINTIFF S MENTAL RESIDUAL FUNCTIONAL CAPACITY AND CREDIBILITY 16 Plaintiff Andy Quach ( Plaintiff ) was born on August 16, 1991. 17 (AR 380.) 18 Plaintiff has severe impairments of autistic disorder (Asperger s) 19 syndrome, and attention deficit hyperactivity disorder ( ADHD ). (AR 20 15.) 21 limitations, due to mental functioning issues, restricting him to jobs 22 involving only simple, repetitive tasks with limited public contact. 23 (AR 16.) The In his Decision (AR 13-22), the ALJ determined that ALJ determined that Plaintiff has non-exertional 24 There are numerous diagnostic and evaluative records in the AR, 25 including reports from psychiatrists, school psychologists, teachers, 26 and other professionals. 27 Robert Rome, Ph.D., who performed a psychological evaluation on August 28 9, 2006 at the request of the North Los Angeles Regional Center (AR Pertinent reports were prepared by Dr. 2 1 270-277); a report of the Behavior Education Services Team ( BEST ) to 2 whom Plaintiff was referred by the North Los Angeles Regional Center 3 (AR 4 ( LAUSD ) school psychologist Dr. Marjorie Warren-Goldstein (AR 380- 5 388); a report of Dr. Jerold Parrish, M.D., Plaintiff s treating 6 psychiatrist at Kaiser Permanente (AR 646-656); a report of Dr. Donald 7 Gallo, Ph.D., a psychologist at Kaiser Permanente (AR 640-644); a 8 report of consultative psychological examiner ( CE ) Dr. Lou Sherrill, 9 Ph.D. (AR 604-609); and the opinion of the State Agency non-examining 10 310-312); a report of Los Angeles Unified School District consultant, Dr. R. Tasjian, M.D. (AR 615-617, 618-628). 11 What is apparent from an overall reading of these documents is 12 that Plaintiff has 13 difficulties, including difficulties with peers, teachers, and his 14 parents, and severe difficulties following instructions. 15 of treating psychiatrist Dr. Parrish, and in particular, and the form 16 he thereafter filled out entitled Medical Source Statement of Ability 17 to do Work-Related Activities ( Mental ) is particularly relevant and 18 instructive. Consistent with the ALJ s finding of severe impairments, 19 Dr. Parrish diagnosed Plaintiff on Axis I with Asperger s disorder and 20 ADHD. (AR 648.) Dr. Parrish noted moderate limitations in Plaintiff s 21 ability to understand and remember short, simple instructions and to 22 carry out short and simple instructions. As to Plaintiff s ability to 23 carry out detailed instructions, Dr. Parrish found marked limitations, 24 as he did with Plaintiff s ability to make judgment on simple work- 25 related decisions, and in understanding and remembering detailed 26 instructions. (AR 654.) 27 (i.e., greater than marked ) in Plaintiff s ability to interact 28 appropriately with manifested the continuous and extreme behavior The report The psychiatrist found extreme limitations public, with 3 co-workers, and to respond 1 appropriately to work pressures in a usual work setting. Marked 2 limitations were found in Plaintiff s ability to respond appropriately 3 to changes in a routine work setting. (AR 655.) 4 The ALJ summarized Dr. Parrish s conclusions, but found that they 5 were not supported by the evidence of record referred to above [e.g., 6 the evidence summarized at AR 17-19], insofar as the [Plaintiff] 7 demonstrates he is able to function, especially with tasks involving 8 simple instructions. 9 to some but not controlling weight. (AR 20.) Therefore, Dr. Parrish s opinions are entitled For the following 10 reasons, the Court finds that the ALJ s articulated reasons fall short 11 of the substantial evidence requirement. 12 First, the ALJ s statement that Dr. Parrish s conclusions are not 13 supported by the evidence in the record is an over-generalization, and 14 renders it difficult for the Court to determine exactly what specific 15 evidence the ALJ found in the record to be inconsistent with Dr. 16 Parrish s finding and opinion. 17 that Dr. Parrish s check the box form was supported by his treatment 18 notes. (AR 646-652.) 19 indications in the record from both medical professionals, teachers, 20 and other qualified lay witnesses that Plaintiff has very extreme or 21 marked difficulties in social interactions. 22 example, in the very extensive discussion in the BEST report (AR 310- 23 312), in which the BEST team observed Plaintiff become easily agitated 24 and 25 observation team opined that, It is believed that [Plaintiff s] 26 bursts of anger, aggression and property destruction function to 27 escape or avoid situations in which he does not want to take part or 28 activities he does not want to do. (AR 312.) have difficulty In addition, the ALJ failed to note In any event, there are very substantial following instructions. 4 This is noted, for (AR 311-312.) The 1 The school has psychologist, severe Dr. difficulties Warren-Goldstein, with attention found that skills, gets 2 Plaintiff 3 easily distracted, and is disruptive both at home and at school. 4 He becomes fixated on his computer and does not want to do anything 5 else, has difficulties following directions or paying attention, and 6 is disruptive. 7 see how there is any inconsistency between Dr. Parrish s assessments 8 and those of Dr. Warren-Goldstein. 9 limitations in attention/concentration and difficulty getting along He has few friends. (AR 387-388.) It is difficult to The ALJ acknowledged Plaintiff s 10 with people, but found that these were not totally disabling. 11 ALJ stated, Moreover, just because the [Plaintiff] required services 12 from the Los Angeles Unified School District and the Regional Center, 13 this 14 situation. (AR 20, exhibit citation omitted.) 15 non sequitur. 16 the evidence of record shows the [Plaintiff] is able to attend school 17 daily, go to the gymnasium and work extensively on the family computer 18 despite his sleepiness. (Id., citation omitted.) 19 these statements indicates that they are factually unsupported. does not mean he is unable to function in an The employment This is basically a Moreover, it is followed by the ALJ s notation that, An examination of 20 As to the ALJ s conclusion that Plaintiff is able to work 21 extensively on the family computer, a brief examination of the 22 testimony at the hearing (AR 53-76) belies that characterization. 23 When questioned by the ALJ, Plaintiff indicated that he spent five or 24 six hours a day, and had done so over a long period of time, on his 25 computer, but what he does is play games and watch shows. (AR 63.) 26 There is nothing to indicate that he works or does anything productive 27 on his computer. 28 not do anything productive on his computer. Other records support the fact that Plaintiff does 5 For example, the report 1 of the BEST team indicates that Plaintiff plays on his computer. (AR 2 310.) 3 The report of the LAUSD school psychiatrist lends further 4 consistency to the inadequacy of the ALJ s characterization that 5 Plaintiff is able to attend school daily. 6 psychologist indicated that efforts to intervene in the regular 7 classroom 8 successfully in the regular classroom and is the impetus of this 9 evaluation. (AR 381.) did not result in [Plaintiff s] Indeed, the school ability to perform At the time of the evaluation, Plaintiff was 10 failing many of his classes. 11 unsatisfactory as well. [Plaintiff] is reported to be disruptive, has 12 difficulties 13 distracted. (AR 382.) 14 following His effort and cooperation grades are directions, is inattentive, and easily Finally, the ALJ s reliance on a conclusion that Plaintiff goes 15 to 16 disability determination. 17 Plaintiff reported he would not exercise unless someone accompanied 18 him to the gymnasium, ... (AR at 20.) 19 job requiring simple, repetitive tasks, no one would accompany him. 20 the gymnasium is, even if it were true, irrelevant to the But in any event, according to the ALJ, If Plaintiff were placed in a The question here is not whether Plaintiff has the intellectual 21 ability to do simple, repetitive tasks. 22 Plaintiff can work 40 hours a week at a job which would require him to 23 be prompt and diligent, focus on the task, get along with co-workers 24 and with supervisors, and function successfully. 25 aware that individuals with autism and Asperger s syndrome can and do 26 function in society and in the workplace with proper professional 27 assistance and guidance, consider Plaintiff, who in the Summary 28 prepared by the LAUSD school psychiatrist, is functioning at the 6 Rather, it is whether While the Court is 1 following level: 2 Parents and teachers rate [Plaintiff] as having severe 3 difficulties 4 distracted, and as being disruptive both at home and at 5 school. 6 on his Computer and not wanting to do anything else. 7 school, [Plaintiff] is described as being unmotivated, as 8 having difficulties following directions, paying attention, 9 and as being disruptive. He will yell out random phrases in 10 the classroom, fidgets with his hair and his fingers, has 11 difficulty making eye contact, has difficulties having a 12 conversation with adults or peers, and has few friends. 13 These difficulties are severely impacting his educational 14 performance. 15 with attention skills, as being easily [Plaintiff] is described at home as being fixated At (AR 387-388.) 16 17 The Court has seriously considered simply remanding this matter 18 for calculation of benefits. 19 remand this to the Commissioner for a full and further hearing and 20 examination. 21 hypothetical question posed at the hearing to the vocational expert 22 ( VE ) 23 Plaintiff s behavioral functioning. If Dr. Parrish s conclusions were 24 to be accepted, and instead, a hypothetical were to be posed to a VE 25 which contained limitations more consistent with those rendered by Dr. 26 Parrish, and indeed, more consistent with the record as a whole, the 27 result would be such as the VE testified; i.e., this individual would 28 not be able to participate in the competitive job market. (See AR at (AR On 72-73), The Court has determined, however, to rehearing, which the posited 7 ALJ only must be moderate mindful of limitations the in 1 74-75.) Unless there are compelling reasons to reject this evidence 2 in the record, it would appear that Plaintiff will be found disabled. 3 The Court s discussion effectively disposes of the second and 4 third issues. As to the second issue, the credibility findings, the 5 Court has already noted that the ALJ s reliance upon Plaintiff s 6 ability to attend school daily, go the gymnasium, and work extensively 7 on the family computer are all incomplete and/or incorrect statements, 8 and may not be relied upon in the credibility determination. 9 As to the third issue, the hypothetical question posed to the VE, 10 the Court has already indicated that if Dr. Parrish s non-exertional 11 limitations are accepted, then the hypothetical question posed to the 12 VE by the ALJ is incomplete and may not be relied upon. 13 14 15 This matter will be remanded for further hearing pursuant to the instructions set forth in this Opinion. IT IS SO ORDERED. 16 17 DATED: November 30, 2012 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 8
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