Darren Webb v. Michael J Astrue, No. 2:2012cv04793 - Document 15 (C.D. Cal. 2013)
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 12 13 14 15 16 17 DARREN WEBB, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY, ) ) ) Defendant. ) ) ___________________________________) NO. CV 12-4793-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 June 6, 2012, seeking review of 27 the Commissioner s denial of disability benefits. The parties filed a 28 consent to proceed before a United States Magistrate Judge on July 16, 1 2012. Plaintiff filed a motion for summary judgment on November 6, 2 2012. Defendant filed a cross-motion for summary judgment on 3 December 4, 2012. 4 without oral argument. The Court has taken the motions under submission See L.R. 7-15; Order, filed June 7, 2012. 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 9 Anticipating his release from prison, Plaintiff applied for Supplemental Security Income ( SSI ) on November 26, 2008 10 (Administrative Record ( A.R. ) 182-87, 216-17, 222). Plaintiff 11 asserts disability since January 1, 2004, based on alleged 12 schizophrenia and severe depression (id.). 13 14 An Administrative Law Judge ( ALJ ) determined that Plaintiff 15 suffers from severe schizoaffective disorder vs. bipolar disorder, 16 with a history of seizure disorders, but that these disorders do not 17 meet or equal a listed impairment (A.R. 12-13, 16 (adopting in part 18 State Agency review physician opinion at A.R. 397-410, and in part the 19 diagnoses at A.R. 286, 289-90, 298, 303, 320, 323, 338, 342, 355-61, 20 363, 379, 385, 389, 454, 461, 480, 486-87, 496, 508, 624, 636, 674)). 21 The ALJ found that Plaintiff retains the residual functional capacity 22 to perform medium work limited to: (1) work that does not require 23 climbing ladders, ropes or scaffolds, or any exposure to hazardous 24 machinery, unprotected heights, or other high risk, hazardous or 25 unsafe conditions (seizure precautions) (A.R. 13 (adopting State 26 agency review physician s physical residual functional capacity 27 assessment at A.R. 411-18)); and (2) simple, routine, and repetitive 28 tasks performed in a low stress work environment, which is defined as 2 1 work that does not require changes in work setting or any unusual, 2 very fast pace or production rate requirements, requiring no more 3 than occasional interaction with the public and co-workers (A.R. 4 13).1 5 jobs as a hand packager, house worker, or night cleaner (industrial), 6 and therefore is not disabled (A.R. 12, 16, 20 (adopting vocational 7 expert testimony at A.R. 67-68)). The ALJ found that, with this capacity, Plaintiff could perform 8 9 Plaintiff sought review from the Appeals Council, submitting a 10 legal brief, a letter from Plaintiff s drug and alcohol counselor, and 11 some additional medical records (A.R. 5; see also A.R. 276-83 (legal 12 brief), 682-698 (letter and additional medical records)). 13 Council considered these additional materials, but denied review (A.R. 14 1-5). The Appeals 15 16 STANDARD OF REVIEW 17 18 Under 42 U.S.C. section 405(g), this Court reviews the 19 Administration's decision to determine if: (1) the Administration's 20 findings are supported by substantial evidence; and (2) the 21 Administration used proper legal standards. 22 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 23 499 F.3d 1071, 1074 (9th Cir. 2007). 24 relevant evidence as a reasonable mind might accept as adequate to 25 support a conclusion. 26 (1971) (citation and quotations omitted); Widmark v. Barnhart, 454 See Carmickle v. Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 27 1 28 As discussed below, it is unclear how the ALJ arrived at these non-exertional limitations. 3 1 F.3d 1063, 1067 (9th Cir. 2006). 2 3 Where, as here, the Appeals Council considered additional 4 material but denied review, the additional material becomes part of 5 the Administrative Record for purposes of the Court's analysis. 6 Brewes v. Commissioner, 682 F.3d 1157, 1163 (9th Cir. 2012) ( [W]hen 7 the Appeals Council considers new evidence in deciding whether to 8 review a decision of the ALJ, that evidence becomes part of the 9 administrative record, which the district court must consider when See 10 reviewing the Commissioner's final decision for substantial 11 evidence. ; expressly adopting Ramirez v. Shalala, 8 F.3d 1449, 1452 12 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 1228, 1232 (2011) 13 (courts may consider evidence presented for the first time to the 14 Appeals Council to determine whether, in light of the record as a 15 whole, the ALJ's decision was supported by substantial evidence and 16 was free of legal error ); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th 17 Cir. 1993) ( the Appeals Council considered this information and it 18 became part of the record we are required to review as a whole ); see 19 generally 20 C.F.R. ยงยง 404.970(b), 416.1470(b). 20 DISCUSSION 21 22 23 After reviewing the entire record, including the additional 24 evidence provided for the first time to the Appeals Council, the Court 25 has concluded that the Administration s decision is not supported by 26 substantial evidence. 27 U.S.C. section 405(g). 28 /// Remand is appropriate under sentence four of 42 4 1 A. The Record Before the ALJ 2 3 Plaintiff reported a long history of mental health problems, 4 including suicide attempts when Plaintiff was seven and eleven years 5 old, as well as addiction. 6 (detailing same). 7 with his first arrest at age 22 (A.R. 298, 437, 636, 651, 672). See A.R. 259-60, 284, 437, 440, 651 Plaintiff has been incarcerated at least six times, 8 9 Consultative psychiatrist, Dr. Ernest A. Bagner III, examined 10 Plaintiff and prepared a Complete Psychiatric Evaluation dated 11 March 6, 2009 (A.R. 392-95). 12 from Dr. Fisher dated July 13, 2007, but no other medical records 13 (A.R. 393; see also A.R. 297-99, 307 (available records from Dr. 14 Fisher for this date)).2 15 suffers from schizophrenia and depressive disorders, and has 16 difficulty dealing with people, mood swings, depression, nervousness, 17 feelings of helplessness and hopelessness, low motivation, auditory Dr. Bagner reviewed a psychiatric note Plaintiff reported to Dr. Bagner that he 18 19 20 21 22 23 24 25 26 27 28 2 Dr. Fisher, a psychologist, diagnosed Plaintiff with Bipolar II - Depressed, other substance abuse, alcohol abuse, and a seizure disorder, and assigned Plaintiff a GAF score of 57 (A.R. 298-99). Clinicians use the GAF scale to report an individual s overall psychological functioning. The scale does not evaluate impairments caused by physical or environmental factors. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders ( DSM-IV-TR ) 34 (4th Ed. 2000 (Text Revision)). A GAF score of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. Plaintiff was incarcerated at the time (A.R. 299). Dr. Fisher did not offer any further opinion concerning Plaintiff s functional limitations. 5 1 and visual hallucinations, and sleep disturbance (A.R. 392-93). 2 Plaintiff also reported a history of suicidal ideations, one 3 psychiatric hospitalization, and alcohol dependency with his last use 4 in November 2006 (id.). 5 (A.R. 393). Plaintiff was taking Seroquel and Prozac 6 7 Dr. Bagner diagnosed Plaintiff with a mood disorder, not 8 otherwise specified, and alcohol abuse in remission, and indicated a 9 need to rule out anti-social personality disorder (A.R. 394). 10 Consistent with Dr. Fisher s evaluation, Dr. Bagner assigned Plaintiff 11 a GAF of 60 and stated that Plaintiff has had minimal improvement 12 with psychiatric medications (A.R. 394). Dr. Bagner opined: 13 14 The patient would have zero to mild limitations interacting 15 with supervisors, peers and the public. 16 mild limitations maintaining concentration and attention and 17 completing simple tasks. 18 limitations handling normal stresses at work and completing 19 complex tasks. 20 completing a normal workweek without interruption. He reports zero to He would have mild to moderate He would have moderate limitations 21 22 (A.R. 395 (emphasis added)). 23 24 State agency physician Dr. K. Gregg completed a Psychiatric 25 Review Technique form and case analysis for Plaintiff dated March 17, 26 2009 (A.R. 397-410). 27 a summary of Plaintiff s available medical records. 28 /// Dr. Gregg reviewed Dr. Bagner s assessments and 6 See A.R. 408-10 1 (case analysis summarizing same).3 2 impairments are not severe, and that the evidence does not satisfy 3 the diagnostic criteria for affective disorders (A.R. 397, 400, 406). 4 Dr. Gregg believed that Plaintiff would have only mild difficulties in 5 maintaining social functioning and maintaining concentration, 6 persistence, or pace (A.R. 405). 7 would have no limitations in activities of daily living and no Dr. Gregg opined that Plaintiff s Dr. Gregg indicated that Plaintiff 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Available medical records were somewhat scattered. See A.R. 284-389 (records). Treatment notes show that Plaintiff reported auditory hallucinations and paranoia in December 2003 (A.R. 286, 296, 337), January 2004 (A.R. 319, 323-24), February 2004 (A.R. 334), June 2005 (A.R. 311, 329-30, 362), August 2005 (A.R. 359, 363), November 2005 (A.R. 356-57), January 2006 (A.R. 354-55), March 2007 (A.R. 303, 309, 350, 352, 388-89), May 2007 (A.R. 348-49; but see A.R. 346 (treatment note from May 2007 indicating Plaintiff denied hallucinations)), June 2007 (A.R. 345), July 2007 (A.R. 298, 385), September 2007 (A.R. 343), October 2007 (A.R. 341-42), November 2007 (A.R. 340), December 2007 (A.R. 339, 380), January 2008 (A.R. 378), February 2008 (A.R. 383), March 2008 (A.R. 377; but see A.R. 496 (later submitted March 2008 note indicating Plaintiff reported no symptoms and was stable and wanted to get off his psychiatric medications)), June 2008 (A.R. 375), August 2008 (A.R. 374), September 2008 (A.R. 373; but see A.R. 474 (later submitted September 2008 note indicating Plaintiff was completely asymptomatic and reapplying for SSI)), October 2008 (A.R. 371), and December 2008 (A.R. 367). Treatment notes from 2004 also show that Plaintiff complained of auditory hallucinations, and Plaintiff claimed he wanted psychiatric medication to help him sleep so his time in incarceration would go by faster. See A.R. 313-18 (notes). Plaintiff reportedly denied having auditory hallucinations in April 2007 (A.R. 347). Treatment notes from July and August 2007 report that Plaintiff had no psychotic symptoms on his current medications (A.R. 344). The most recent available medical record for Plaintiff at the time of the State agency physician review was a December 16, 2008 treatment note reporting that Plaintiff was soon to be released from custody, and diagnosing Plaintiff with bipolar I D/O [disorder], depressed [with] pf [psychotic features] (A.R. 367). Plaintiff then complained of auditory hallucinations and depression related to being away from his family (A.R. 367). 7 1 repeated episodes of decompensation of extended duration (A.R. 405). 2 Dr. Gregg stated that Plaintiff had credible mood problems, but mild 3 (A.R. 407). 4 5 State agency physician Dr. K. Wahl prepared a Physical Residual 6 Functional Capacity Assessment form for Plaintiff dated March 29, 2009 7 (A.R. 411-18). 8 seizure that is now controlled (A.R. 411). 9 Plaintiff should avoid even moderate exposure to hazards and advised 10 that Plaintiff should have seizure precautions (i.e., no unprotected 11 heights, open bodies of water, open electrical circuits, driving or 12 heavy equipment) (A.R. 414). 13 (A.R. 412-14; see also A.R. 417-18). Dr. Wahl stated that Plaintiff has a history of Dr. Wahl opined that Dr. Wahl found no other limitations 14 15 After the above-summarized medical evaluations and prior to the 16 ALJ s adverse decision, Plaintiff s counsel submitted numerous 17 additional medical records to the ALJ. 18 summarizing record); see also A.R. 431-674 (additional records 19 covering the time period from January 2004 through December 2010). 20 Like the previously submitted records, these records reflect that 21 Plaintiff has complained of auditory hallucinations. 22 436, 438, 454, 461, 470, 478, 489, 500, 507, 573, 575-76, 578, 580, 23 585, 595, 597-98, 616, 619, 621-22, 624-25, 626, 634, 636, 645, 647, 24 651, 652, 657, 663, 666, 670 (noting complaints). 25 that he has heard bad voices every day since he was 14 years old 26 (A.R. 670). 27 /// 28 /// 8 See A.R. 16-19 (ALJ See, e.g., A.R. Plaintiff claimed 1 In September 2004, Plaintiff reported that his auditory 2 hallucinations made it difficult for him to hold a job due to 3 concentration issues. 4 August 2004 psychological assessment prepared by Plaintiff s treating 5 psychologist stated that due to Plaintiff s hallucinations and 6 paranoia that had not been stabilized with medication, Plaintiff would 7 not be able to cope effectively with the demands of work and other 8 employees, and therefore Plaintiff could not work. 9 (evaluation); see also A.R. 652 (January 2005 assessment by same See A.R. 436 (September 2004 record). An See A.R. 438 10 psychologist reaching same conclusion); but see A.R. 440 (August 2004 11 note indicating that Plaintiff reported working 12 hours)). 12 then was seeking social security benefits. Plaintiff See A.R. 450. 13 14 Plaintiff was released from incarceration sometime in or around 15 March 2006 (A.R. 644). An April 2006 treatment note indicates that 16 Plaintiff was approved for SSI benefits (A.R. 641; see also A.R. 650 17 (January 2005 note indicating that Plaintiff had been denied SSI 18 benefits four times previously)). 19 20 Plaintiff later returned to custody. A pre-release follow up 21 from November 2008, indicates that Plaintiff was expected to be 22 paroled in December 2008 and had concerns about whether he would 23 receive social security benefits, but described Plaintiff as stable 24 (A.R. 460). 25 worker states that, due to Plaintiff s mental illness, he is not 26 capable of living independently or maintaining employment (A.R. 624- 27 25). 28 Plaintiff and further his access to treatment (A.R. 625). A treatment plan from January 2009 prepared by a social The social worker stated that SSI would further stabilize 9 1 In May 2010, Plaintiff reported he was unable to function due to 2 distraction from hearing voices and isolation due to his paranoia 3 (A.R. 670). 4 activities of daily living (A.R. 670). 5 schizoaffective disorder depressive type, post traumatic stress 6 disorder, alcohol dependence in full remission, and with a need to 7 rule out mood disorder not otherwise specified (A.R. 674). 8 was assigned a GAF of 52 (A.R. 674). Plaintiff, however, could perform his own basic Plaintiff was diagnosed with Plaintiff 9 10 B. 11 Additional Evidence Submitted to the Appeals Council Following the ALJ s Adverse Decision 12 13 Additional evidence submitted to the Appeals Council included a 14 December 2010 follow up medication note indicating that Plaintiff had 15 a history of voices in the head, but was stable with no reported 16 auditory hallucinations at that time (A.R. 690). 17 hospitalized in March 2011 for depression, anxiety, panic, medication 18 abuse, and suicidal urges (A.R. 695). 19 medications (A.R. 695). 20 released three days later, stable with no reported hallucinations 21 (A.R. 695-97). 22 schizophrenia paranoid type and assigned a GAF of 40 at the time of 23 his release (A.R. 695, 698).4 Plaintiff was Plaintiff then was off his Plaintiff s resumed his medications and was Plaintiff s treating doctor diagnosed Plaintiff with 24 25 26 27 28 4 A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work. . .). DSM-IV-TR at 34. 10 1 C. Analysis 2 3 In determining that Plaintiff retains a residual functional 4 capacity that permits Plaintiff to work, the ALJ adopted the physical 5 limitations and abilities assessed by State Agency review physician 6 Dr. Wahl. 7 non-exertional (mental) limitations to be limitations to simple, 8 routine, repetitive tasks in a low stress environment, which does not 9 require changes in work setting or any unusual or fast pace or See A.R. 17-18. The ALJ determined Plaintiff s specific 10 production rate requirements, and no more than occasional interaction 11 with the public and co-workers (see A.R. 13). 12 determination, the ALJ claimed to have given significant weight to 13 Dr. Bagner s opinions and also claimed to have adopted slightly more 14 restrictive limitations than Dr. Bagner found to exist (A.R. 18). In reaching this 15 16 The ALJ did not expressly acknowledge Dr. Bagner s opinion that 17 Plaintiff would have moderate limitations completing a normal 18 workweek without interruption. 19 Bagner s assessment) with A.R. 395 (Dr. Bagner s assessment). 20 it is unclear whether the ALJ considered this portion of Dr. Bagner s 21 opinion in determining Plaintiff s residual functional capacity. 22 ALJ s failure to acknowledge, and possible failure to consider, this 23 portion of Dr. Bagner s opinion may have been material to the 24 disability determination. 25 person with the residual functional capacity the ALJ found to exist 26 were to miss more than two days of work per month, it would preclude 27 employment. 28 /// Compare A.R. 17 (ALJ s summary of Dr. Thus, The The vocational expert testified that, if a See A.R. 68-69 (vocational expert testimony). 11 1 Furthermore, the ALJ did not have any expert opinion translating 2 Dr. Bagner s assessment into specific non-exertional functional 3 limitations. 4 a specific residual functional capacity. 5 opinion). 6 Bagner s assessment did not translate the assessment into a specific 7 residual functional capacity. 8 assessment). 9 Assessment form in the record. Dr. Bagner himself did not translate his assessment into See A.R. 395 (Dr. Bagner s The State agency review physician who considered Dr. See A.R. 397-410 (State agency review There is no Mental Residual Functional Capacity And, finally, the ALJ did not seek the 10 services of a medical expert to translate Dr. Bagner s opinion into 11 specific functional limitations. 12 regarding the issue of what moderate limitations completing a normal 13 workweek without interruption might mean in terms of, for example, 14 possible absenteeism.5 Thus, one is left to speculate 15 16 Absent expert assistance, the ALJ could not competently translate 17 Dr. Bagner s opinions into a residual functional capacity assessment.6 18 It is well-settled that an ALJ may not render his or her own medical 19 opinion or substitute his or her own diagnosis for that of a 20 claimant s physician. See Tackett v. Apfel, 180 F.3d 1094, 1102-03 21 22 23 24 25 26 27 28 5 To the extent the ALJ intended to suggest that moderate limitations are never consistent with a disabling condition (A.R. 18), the suggestion must be rejected. See, e.g., Andrews v. Shalala, 53 F.3d 1035, 1044 (9th Cir. 1995) (failure to consider moderate limitations on the non-exertional functioning of a disability claimant required remand). 6 Compare Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (ALJ could translate claimant s condition involving mental limitations into concrete residual functional capacity where there existed a basis in the medical record for doing so (i.e., supporting medical opinions)). 12 1 (9th Cir. 1999) (ALJ erred in rejecting physicians opinions and 2 finding greater residual functional capacity based on claimant s 3 testimony concerning a road trip; there was no medical evidence to 4 support the ALJ s determination); Day v. Weinberger, 522 F.2d 1154, 5 1156 (9th Cir. 1975) (an ALJ is forbidden from making his own medical 6 assessment beyond that demonstrated by the record); Balsamo v. Chater, 7 142 F.3d 75, 81 (2d Cir. 1998) (an ALJ cannot arbitrarily substitute 8 his own judgment for competent medical opinion ) (internal quotation 9 marks and citation omitted); Rohan v. Chater, 98 F.3d 966, 970 (7th 10 Cir. 1996) ( ALJs must not succumb to the temptation to play doctor 11 and make their own independent medical findings ). 12 before the ALJ determined that a particular residual functional 13 capacity assessment would account for Plaintiff s medical conditions, 14 the ALJ should have called on an expert to provide competent evidence 15 with respect to such issues. In this case, 16 17 18 Because the circumstances of this case suggest that further administrative review could remedy the ALJ s errors,7 remand is 19 7 20 21 22 23 24 25 26 27 28 There are outstanding issues that must be resolved before a proper disability determination can be made in the present case. For this reason, the Ninth Circuit s decision in Harman v. Apfel, 211 F.3d 1172 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) ( Harman ) also does not compel a reversal for the immediate payment of benefits. In Harman, the Ninth Circuit stated that improperly rejected medical opinion evidence should be credited and an immediate award of benefits directed where (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Harman at 1178 (citations and quotations omitted). Assuming, arguendo, the Harman holding survives the Supreme (continued...) 13 1 appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see 2 generally INS v. Ventura, 537 U.S. at 16 (upon reversal of an 3 administrative determination, the proper course is remand for 4 additional agency investigation or explanation, except in rare 5 circumstances). 6 7 CONCLUSION 8 9 For all of the foregoing reasons,8 Plaintiff s and Defendant s 10 motions for summary judgment are denied and this matter is remanded 11 for further administrative action consistent with this Opinion. 12 13 LET JUDGMENT BE ENTERED ACCORDINGLY. 14 15 DATED: February 4, 2013. 16 17 ______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 7 23 24 25 26 27 28 (...continued) Court s decision in INS v. Ventura, 537 U.S. 12 (2002), the Harman holding does not direct reversal of the present case. In addition to the outstanding issues that must be resolved, it is not clear that the ALJ would be required to find Plaintiff disabled for the entire period of claimed disability if the medical opinions were fully credited. 8 The Court has not reached any issue raised by Plaintiff except insofar as to determine that reversal with a directive for the payment of benefits would not be appropriate at this time. 14
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