Ronnie F Baker v. Michael J Astrue, No. 2:2012cv03011 - Document 16 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RONNIE F. BAKER, 12 13 14 Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, 15 16 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 12-3011-E MEMORANDUM OPINION AND ORDER OF REMAND 18 19 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 20 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 21 judgment are denied and this matter is remanded for further 22 administrative action consistent with this Opinion. 23 24 PROCEEDINGS 25 26 Plaintiff filed a complaint on April 12, 2012, seeking review of 27 the Commissioner s denial of benefits. The parties filed a consent to 28 proceed before a United States Magistrate Judge on May 15, 2012. 1 Plaintiff filed a motion for summary judgment on September 27, 2012. 2 Defendant filed a motion for summary judgment on October 29, 2012. 3 The Court has taken both motions under submission without oral 4 argument. See L.R. 7-15; Order, filed April 13, 2012. 5 6 BACKGROUND 7 8 Plaintiff asserts disability since April 1, 1992, based on a 9 combination of alleged psychological and physical impairments, 10 including post traumatic stress disorder ( PTSD ) and back pain 11 (Administrative Record ( A.R. ) 29-914). 12 experienced symptomatology of disabling severity since at least 1992 13 (A.R. 31-46). Plaintiff claims to have 14 15 The Administrative Record contains evidence spread over several 16 decades concerning the cause and the effects of Plaintiff s PTSD. 17 Plaintiff assertedly experienced numerous traumatic events while 18 working as a photographer in Vietnam during the Vietnam War (A.R. 19 574). 20 and women who had been killed . . . [and] once had to take pictures of 21 huge stacks of dead bodies while the general was standing beside him 22 crying (A.R. 585). 23 allegedly has had symptoms of re-experiencing, avoidance, numbing, 24 and hyperarousal which have interfered with his life significantly 25 (A.R. 574; see also A.R. 585). Plaintiff reportedly had to take pictures of young children As a result of these reported traumas, Plaintiff 26 27 28 In 1984, a licensed clinical social worker authored some partially illegible handwritten notes describing very serious effects 2 1 of PTSD allegedly experienced by Plaintiff (A.R. 820-46). Plaintiff 2 reportedly resigned from a job in early 1984 because of homicidal 3 impulses toward his supervisor (A.R. 820). 4 flashbacks to Vietnam when he closed his eyes (A.R. 831). 5 said he was thinking of dressing in combat fatigues to play war in the 6 woods (A.R. 820, 838). 7 ideation, planning to drive a car off the Bay Bridge (A.R. 830). 8 Plaintiff claimed that, when he was alone and thinking about his 9 impulses, it seemed to him that he was rational, although he was also Plaintiff said he had Plaintiff Plaintiff also reportedly had suicidal 10 afraid he might be crazy (A.R. 833, 838). The social worker 11 consulted a doctor, who also interviewed Plaintiff (A.R. 834). 12 Although the doctor and the social worker concluded Plaintiff was not 13 committable [sic] at this time, they recommended that Plaintiff be 14 hospitalized in a veterans program for PTSD treatment. 15 Plaintiff declined or sabotaged planned hospitalizations, after 16 expressing a fear of being held in a psych ward and maybe never 17 getting out (A.R. 839-40). However, 18 19 In 1998, Plaintiff requested a psychiatric assessment, 20 apparently at the direction of a Nevada judge, after Plaintiff was 21 caught three times feeding slugs into a slot machine (A.R. 238). 22 Plaintiff then presented with blunted affect and some suspiciousness 23 and admitted to transient paranoia (A.R. 238). 24 interviewed Plaintiff wrote: 25 A personality disorder r/o psychotic process (A.R. 238). The person who then r/o bi-polar mood disorder r/o cluster 26 27 28 A 2004 Progress Note reads (strangely): ptsd; pt states quit all care and has ben [sic] on his own trying to take care of it and 3 1 doing better than before. state being watchful about speena from 2 Donald trump (A.R. 230). 3 screen reportedly was negative (A.R. 231). 4 refused recommended mental health treatment for chronic sleep 5 disorders and stress (A.R. 272-73). In 2007, a 4 question Primary Care PTSD In 2008, Plaintiff 6 7 An undated progress note, perhaps from 2009, states ongoing 8 symptoms since Vnam. Several outpt treatment at no. Calif. 9 1998 and 2007" (A.R. 775). VAMC in On January 28, 2009, an examining 10 psychologist described Plaintiff s Chief Complaint as Depressed 11 mood, easily startled, takes a while to calm down. 12 sweating in response to anxiety. Also his [s]kin breaks out in rash. 13 Vigilant, concerned about safety. Fears somebody will come and get 14 me. 15 rifle. Becomes hot Used to have guns all over the house, sit up on the roof with a Self-isolates (A.R. 227). 16 17 On July 27, 2009, Plaintiff entered outpatient treatment for 18 combat related PTSD (A.R. 390, 847). Dr. Bradley Warren, a treating 19 psychiatrist, opined on August 17, 2010, that Plaintiff has 20 manifested the classic symptoms of PTSD and the accompanying 21 psychosocial stressors that accompany this disorder . . . His 22 prognosis for full recovery or for returning to employment is not 23 good (A.R. 847). 24 September 3, 2010, that Plaintiff remains disabled due to his medical 25 and psychiatric conditions, some of which are due to his military 26 service in combat (A.R. 897). 27 medical problems as chronic pain due to lumbar spondylosis, 28 migraine headache, intermittent recurrent kidney stones, and post- Dr. Shawn Lance, a treating internist, opined on Dr. Lance described Plaintiff s 4 1 traumatic stress disorder (PTSD) (A.R. 897). 2 The Administrative Law Judge ( ALJ ) found, inter alia: 3 4 (1) Plaintiff had not engaged in substantial gainful activity since 5 April 1, 1992 (A.R. 15); (2) as of May 18, 2009, Plaintiff was 6 disabled by reason of severe PTSD, chronic migraines, degenerative 7 disc disease, and chronic urolithiasis (A.R. 18-20); and (3) prior to 8 May 18, 2009, Plaintiff had no severe impairments whatsoever (A.R. 15- 9 18).1 The ALJ did not consult a medical advisor before selecting 10 May 18, 2009 as the disability onset date. 11 The Appeals Council denied review (A.R. 1-3). 12 13 STANDARD OF REVIEW 14 15 Under 42 U.S.C. section 405(g), this Court reviews the 16 Administration s decision to determine if: (1) the Administration s 17 findings are supported by substantial evidence; and (2) the 18 Administration used proper legal standards. 19 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 20 499 F.3d 1071, 1074 (9th Cir. 2007). 21 relevant evidence as a reasonable mind might accept as adequate to 22 support a conclusion. 23 (1971) (citation and quotations omitted); Widmark v. Barnhart, 454 24 F.3d 1063, 1067 (9th Cir. 2006). See Carmickle v. Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 In reviewing a finding regarding 25 26 27 28 1 An impairment is non-severe only if the impairment has no more than a minimal effect on an individual s ability to work. Social Security Ruling 85-28; see Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (the severity concept is a de minimis screening device to dispose of groundless claims ). 5 1 disability onset, the question is whether the onset date actually 2 chosen is supported by substantial evidence, not whether another date 3 could reasonably have been chosen. 4 747, 750 (9th Cir. 1989). Magallanes v. Bowen, 881 F.2d 5 6 DISCUSSION 7 8 9 Social Security Ruling [SSR] 83-20 sets forth guidelines for determining the date of onset of a disability. . . . 10 Sullivan, 924 F.2d 841, 848 (9th Cir. 1991).2 11 DeLorme v. 83-20 provides: In pertinent part, SSR 12 13 In determining the date of onset of disability, the 14 date alleged by the individual should be used if it is 15 consistent with all the evidence available. 16 medical or work evidence is not consistent with the 17 allegation, additional development may be needed to 18 reconcile the discrepancy. 19 date must be fixed based on the facts and can never be 20 inconsistent with the medical evidence of record. When the However, the established onset 21 22 * * * 23 24 How long the disease may be determined to have existed at a 25 disabling level of severity depends on an informed judgment 26 27 28 2 Social Security rulings are binding on ALJs. Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990); see 20 C.F.R. ยง 402.35(b)(1). 6 1 of the facts in the particular case. This judgment, 2 however, must have a legitimate medical basis. 3 4 * * * 5 6 The onset date should be set on the date when it is most 7 reasonable to conclude from the evidence that the impairment 8 was sufficiently severe to prevent the individual from 9 engaging in SGA (or gainful activity) for a continuous 10 period of at least 12 months or result in death. 11 Convincing rationale must be given for the date selected. 12 13 Id. (emphasis added). 14 15 Where a claimant suffers from impairments not resulting from a 16 single trauma, the appropriate onset date may be particularly 17 difficult to select. 18 concerning the onset date and medical inferences need to be made, SSR 19 83 20 requires the administrative law judge to call upon the services 20 of a medical advisor and to obtain all evidence which is available to 21 make the determination. 22 Security Admin., 160 F.3d 587, 589-90 (9th Cir. 1998) ( Armstrong ) 23 (quoting DeLorme v. Sullivan, 924 F.2d at 848); see also Cero v. 24 Commissioner of Social Security Admin., 473 Fed. App x 536, 538 (9th 25 Cir. Mar. 29, 2012) (discussing same); SSR 83-20 (ALJ should call on 26 the services of a medical advisor when onset must be inferred ). 27 [A]fter the ALJ has created a record and has a basis for selecting an 28 onset date, the claimant who wishes to challenge that date bears the If the medical evidence is not definite Armstrong v. Commissioner of Social 7 1 burden of proof. Armstrong, 160 F.3d at 590 (emphasis added). 2 3 In the present case, Defendant argues that the medical evidence 4 of record is inconsistent with Plaintiff s assertion of an April 1, 5 1992, disability onset (Defendant s Motion at 5). 6 entire medical record, the Court discerns no such inconsistency, 7 although the medical record is sparse and the Court s analysis is 8 somewhat hampered by the illegibility of portions of the record.3 After reviewing the 9 10 In rejecting the possibility of an onset date earlier than 11 May 18, 2009, the ALJ appears to have relied on Plaintiff s relative 12 lack of documented treatment, as well as on evidence that Plaintiff 13 did some kind of work long after Plaintiff s alleged onset date (A.R. 14 17). 15 rationale for the ALJ s selection of a May 18, 2009 disability onset 16 date. 17 selected ); see also DeLorme v. Sullivan, 924 F.2d at 848 (ALJ must 18 consider all evidence available to make onset determination; If 19 medical evidence is not available, then lay evidence may be 20 obtained. ). As explained below, neither consideration provides a convincing See SSR 83-20 ( convincing rationale must be given for the date 21 22 The fact that the record does not reflect any treatment for PTSD 23 in the 1970 s is unsurprising. Before 1980, PTSD did not exist as a 24 clinically recognized diagnosis. 25 at *9 (D. Or. 2010), adopted, 2011 WL 284457 (D. Or. Jan. 26, 2011). Bradford v. Astrue, 2010 WL 5648875, 26 27 28 3 See A.R. 832-44, 886-92; see also Brissett v. Heckler, 730 F.2d 548, 550 (8th Cir. 1984) (remand warranted where material portions of the administrative record were illegible). 8 1 Documentation of Plaintiff s PTSD treatment 1984 through 2008 is 2 sparse, but this sparsity does not justify the selection of a May 18, 3 2009 disability onset date. 4 progressive impairment, or at least as akin to a progressive 5 impairment. 6 July 25, 2012); Ott v. Chater, 899 F. Supp. 550, 553 (D. Kan. 1995); 7 see also Jones v. Chater, 65 F.3d 102, 103 (8th Cir. 1995) ( Although 8 PTSD may not be degenerative in the same classic sense as a condition 9 like diabetes, PTSD is an unstable condition that may not manifest Courts have described PTSD as a See Savoie v. Astrue, 2012 WL 3044134, at *4 (D. Or. 10 itself until well after the stressful event which caused it, and may 11 wax and wane after manifestation ). 12 and given indications in the record that Plaintiff experienced 13 significant PTSD symptoms long prior to 2009 (and even prior to 1992) 14 the mere sparsity of the treatment record does not warrant the denial 15 of Plaintiff s claim. 16 Cir. 1996) ( appellant may have failed to seek psychiatric treatment 17 for his mental condition but it is a questionable practice to chastise 18 one with a mental impairment for the exercise of poor judgment in 19 seeking rehabilitation ) (quoting Blankenship v. Bowen, 874 F.2d 1116, 20 1124 (6th Cir. 1989)). 21 by failing to consult a medical advisor and by failing to attempt to 22 obtain additional medical evidence or lay evidence to help determine 23 the onset of disability. 24 3044134, at *6; Bradford v. Astrue, 2010 WL 5648875, at *18-19; see 25 generally Armstrong, 160 F.3d at 590 ( [W]e reaffirm this court s 26 previous holding that where a record is ambiguous as to the onset date 27 of disability, the ALJ must call a medical expert to assist in 28 determining the onset date. . . . Given the unusual nature of PTSD, See Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Moreover, the ALJ plainly violated SSR 83-20 See, e.g., Savoie v. Astrue, 2012 WL Rather than just inferring an onset 9 1 date, which would deny a claimant benefits, SSR 83-20 requires that 2 the ALJ create a record which forms a basis for that onset date. 3 ALJ can fulfill this responsibility by calling a medical expert or 4 where medical testimony is unhelpful, exploring lay evidence including 5 the testimony of family, friends or former employers to determine the 6 onset date. ). The 7 8 9 The reported fact that Plaintiff did some work after Plaintiff s alleged April 1, 1992 onset date also does not provide a convincing 10 rationale for the May 18, 2009 onset date selected by the ALJ. The 11 ALJ agreed that Plaintiff did not engage in any substantial gainful 12 activity after April 1, 1992 (A.R. 15). 13 work Plaintiff performed after April 1, 1992 (reportedly seminars 14 and business consultations ) remains unexplained on the present 15 record. 16 whether Plaintiff s post-April 1, 1992 work properly may undercut 17 Plaintiff s claimed disability onset date. The significance of whatever This lack of explanation prevents the Court from evaluating 18 19 In sum, the ALJ s May 18, 2009 onset date determination was not a 20 properly informed judgment supported by convincing rationale, as 21 required by SSR 83-20. 22 does not support the ALJ s determination. 23 Bowen, 881 F.2d at 750. 24 the ALJ s determination that progressive impairments not even severe 25 /// 26 /// 27 /// 28 /// On the present record, substantial evidence See id.; Magallanes v. In particular, no record evidence supports 10 1 on May 17, 2009, became both severe and disabling the very next day.4 2 3 4 The appropriate remedy in the present case is a remand for 5 further administrative proceedings. See INS v. Ventura, 537 U.S. 12, 6 16 (2002) (upon reversal of an administrative determination, the 7 proper course is remand for additional agency investigation or 8 explanation, except in rare circumstances); McLeod v. Astrue, 640 F.3d 9 881, 888 (9th Cir. 2011) (where the circumstances of the case suggest 10 that further administrative review could remedy the ALJ s errors, 11 remand is appropriate). 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 21 4 22 23 24 25 26 27 28 It is true that pinpoint accuracy in determining the onset of disability may not be possible where, as here, the claimant s impairments worsened over time. Even so, SSR 83-20 requires more justification underpinning the selection of a disability onset date than was given here. It is also true that, unless Plaintiff s disability onset date occurred on or before his last insured date (December 31, 1997), the ALJ s errors would not affect Plaintiff s benefits. The Court cannot find the ALJ s errors harmless on the present record, however. Without additional medical evidence or lay evidence, and without input from a medical advisor, the record cannot support any convincing rationale for a conclusion that Plaintiff s disability onset post-dated December 31, 1997. 11 1 CONCLUSION 2 3 For all the foregoing reasons, Plaintiff s and Defendant s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: November 8, 2012. 10 11 12 _____________/S/________________ CHARLES F. EICK 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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