Laurie Machut v. Carolyn W Colvin, No. 2:2012cv05220 - Document 18 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. This matter will be remanded for further hearing consistent with this Memorandum Opinion. 1 [SEE ORDER FOR FURTHER DETAILS] (gr)
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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 LAURIE MACHUT, 12 Plaintiff, 13 14 v. 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-05220-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 s ( ALJ ) finding on 1 Plaintiff s residual functional capacity is not supported by 2 substantial evidence and 3 hypothetical question to 4 incomplete and inaccurate; 5 2. 6 the ALJ improperly the the vocational rejected the relied-upon expert was opinions of Plaintiff s treating sources; and 7 3. 8 9 Whether whether Whether the ALJ improperly discredited the testimony of Plaintiff and her mother. (JS at 3.) 10 11 This Memorandum Opinion will constitute the Court s findings of 12 fact and conclusions of law. After reviewing the matter, the Court 13 concludes 14 Commissioner must be reversed and the matter remanded. that for the reasons set forth, the decision of the 15 16 I 17 THIS MATTER WILL BE REMANDED FOR A NEW HEARING 18 TO FULLY CONSIDER MENTAL HEALTH EVIDENCE 19 From a mental health standpoint, this is a complex case. The ALJ 20 determined that Plaintiff has severe impairments of bipolar disorder 21 and 22 diagnoses of major depressive disorder and a learning disorder. (AR 23 18.) 24 Agency physicians, Drs. Lee and Leaf (respectively, AR 500-513, 550- 25 563), the ALJ determined that Plaintiff s Residual Functional Capacity 26 ( RFC ) would allow her to perform simple repetitive tasks not 27 requiring a rapid pace or high production quota; and limitation to 28 occasional interaction with the general public. (AR 20.) attention deficit hyperactivity disorder, with alternative Largely based upon her reliance on the evaluations of two State 2 1 Plaintiff raises a number of issues with the ALJ s mental RFC 2 determination. First, Plaintiff makes an unchallenged assertion that 3 the State Agency physicians prepared their reports and rendered their 4 opinions 5 Plaintiff s treating psychologist, Dr. Gantt, covering the period 6 2006-2010; her former psychiatrist, Dr. El-Asyouty (AR 714-718); and 7 her current psychiatrist, Dr. De Guzman. (AR 634-636, 728-732). 8 Plaintiff further asserts that the RFC finding fails to accurately 9 reflect the opinions of Drs. Lee and Leaf, in that it does not address 10 seven areas of functioning where Dr. Lee opined that Plaintiff had 11 moderate mental limitations. 12 Instead, the ALJ determined that Plaintiff has moderate impairments in 13 three areas: (1) activities of daily living; (2) social functioning; 14 and (3) concentration, persistence or pace. (AR 20.) 15 contends that the ALJ s RFC limitation does not adequately encompass 16 or reflect Dr. Lee s complete opinion. before the administrative file contained records from Dr. Leaf adopted these limitations. Plaintiff thus 17 Plaintiff also asserts that the hypothetical question posed to 18 the vocational expert ( VE ) was incomplete in that it failed to 19 include all the exertional and non-exertional limitations which apply 20 to Plaintiff. 21 The Commissioner s contention is that the ALJ properly relied 22 upon the non-examining State Agency physicians because their opinions 23 were corroborated by treating physician Dr. De Guzman. 24 Plaintiff does raise an issue concerning her physical limitations 25 based upon obesity. The Commissioner responds that obesity was never 26 alleged as a physical impairment until this litigation and that, in 27 any event, there is no evidence that any physical impairments from 28 which Plaintiff suffers were inadequately controlled with medication. 3 1 A. 2 In evaluating mental impairments, 20 C.F.R. §404.1520a(c)(3)(4) 3 and §416.920a(c)(3)(4) mandate that consideration be given, among 4 other 5 functioning; concentration, persistence, or pace; and episodes of 6 decompensation. These factors are generally analyzed in a Psychiatric 7 Review Technique Form ( PRTF ). 8 sequential evaluation to determine if a claimant is disabled under the 9 Listing of Impairments; however, the same data must be considered at 10 subsequent steps unless the mental impairment is found to be not 11 severe at Step Two. 12 Applicable Law. things, 20 C.F.R. to activities of daily living ( ADLs ), social The PRTF is used at Step Three of the See SSR 85-16. §§404.1520a(c)(1) and 416.920a(c)(1) require 13 consideration of all relevant and available clinical signs and 14 laboratory findings, the effects of your symptoms, and how your 15 functioning may be affected by factors including, but not limited to, 16 chronic mental disorders, structured settings, medication and other 17 treatment. 1 18 SSR 85-16 suggests the following as relevant evidence: 19 History, findings, and observations from medical 20 sources (including psychological test results), regarding 21 the presence, frequency, and intensity of hallucinations, 22 delusions or paranoid tendencies; depression or elation; 23 confusion or disorientation; conversion symptoms or phobias; 24 25 26 27 28 1 20 C.F.R. §404.1545(c) and §416.945(c) also require consideration of residual functional capacity for work activity on a regular and continuing basis and a limited ability to carry out certain mental activities, such as limitations in understanding, remembering, and carrying out instructions, and in responding appropriately to supervision, co-workers, and work pressures in a work setting. 4 1 psycho-physiological 2 behavior; anxiety or tension. 3 activities of daily living and work activity, as well as 4 testimony 5 performance and behavior. 6 homes, or similar assistive entities. of third symptoms, withdrawn or bizarre Reports of the individual s parties about the individual s Reports from workshops, group 7 8 It is also required under §404.1520a(c)(2) and §416.920a(c)(2) 9 that the ALJ must consider the extent to which the mental impairment 10 interferes with an ability to function independently, appropriately, 11 effectively, and on a sustained basis including such factors as the 12 quality and level of [] overall functional performance, any episodic 13 limitations 14 require[d]. [and] the amount of supervision or assistance [] 15 Pursuant to the September 2000 amendments to the regulations 16 which modify 20 C.F.R. §404.1520a(e)(2) and §416.920a(e)(2), the ALJ 17 is no longer required to complete and attach a PRTF. 18 regulations identify five discrete categories for the first three of 19 four relevant functional areas: activities of daily living; social 20 functioning; concentration, persistence or pace; and episodes of 21 decomposition. These categories are None, Mild, Moderate, Marked, and 22 Extreme. (§404.1520a(c)(3), (4).) In the decision, the ALJ must 23 incorporate pertinent findings and conclusions based on the PRTF 24 technique. §404.1520a(e)(2) mandates that the ALJ s decision must show 25 the 26 findings, and the functional limitations that were considered in 27 reaching a conclusion about the severity of the mental impairment(s). 28 The decision must include a specific finding as to the degree of significant history, including 5 examination and The revised laboratory 1 limitation in each of the functional areas described in paragraph (c) 2 of this section. 3 The Step Two and Three analyses (see Decision at AR 53-54) are 4 intended to determine, first, whether a claimant has a severe mental 5 impairment (Step Two), and if so, whether it meets or equals any of 6 the Listings (Step Three). It is also required under §404.1520a(c)(2) 7 and §416.920a(c)(2) that the ALJ must consider the extent to which the 8 mental 9 independently, appropriately, effectively, and on a sustained basis 10 including such factors as the quality and level of [] overall 11 functional performance, any episodic limitations [and] the amount of 12 supervision or assistance [] require[d]. impairment interferes with an ability to function 13 These findings and conclusions are relevant to the Step Two and 14 Three analysis of whether a claimant has a severe mental impairment, 15 and if so, whether it meets or equals any of the Listings. (See 20 16 C.F.R. Part 4, subpart p, App. 1.) 17 Mental Disorders, is relevant: 18 The criteria in The discussion in Listing 12.00, paragraphs functional B and limitations C describe 19 impairment-related that are 20 incompatible with the ability to do any gainful activity. 21 The functional limitations in paragraphs B and C must be the 22 result of the mental disorders described in the diagnostic 23 description, that is manifested by the medical findings in 24 paragraph A. 25 In Listing 12.00C, entitled Assessment of Severity, 26 it is stated that, we assess functional limitations using 27 the four criteria in paragraph B of the Listings: Activities 28 of daily living; social functioning; 6 concentration; 1 persistence, or pace; and episodes of decompensation. Where 2 we use marked as a standard for measuring the degree of 3 limitation, it means more than moderate but less than 4 extreme. 5 6 Social Security Ruling ( SSR ) 96-8p makes the same point in 7 distinguishing evidence supporting a rating of mental severity at Step 8 Two, a Listing level impairment at Step Three, and the determination 9 of an individual s MRFC at Step Four. 10 11 B. 12 The record indicates that Plaintiff received continuous mental 13 health treatment from various medical sources between 2006 and 2010. 14 She began her treatment with Dr. Gantt on September 6, 2006 treating 15 with Dr. Gantt for 51 sessions through August 4, 2010. (AR 672-710, 16 724-727.) 17 Plaintiff s History of Mental Health Treatment. From April 2006 to August 2008, Plaintiff was treated on 23 18 occasions 19 physicians at Central Coast Family Care. (AR 402-480.) In April 2006, 20 Dr. John Okerblum diagnosed Plaintiff as suffering from depression 21 with anxiety and Attention Deficit Disorder ( ADD ), and further noted 22 that because her medications were both ineffective and caused negative 23 side 24 evaluation by Dr. El-Asyouty, who then treated Plaintiff in 2006. (AR 25 477-480, 714-718.) 26 for effects, both he mental determined and physical to refer impairments Plaintiff for by various psychiatric The record would support a conclusion that between 2006 and 2008, 27 Plaintiff s condition was unstable and deteriorating. 28 a notation in March 2008 that Plaintiff had been suicidal and in April 7 Dr. Gantt made 1 2008, she was hearing voices in her head, reported major mood swings, 2 and was severely depressed. (AR 696.) 3 2008, Plaintiff told Dr. Gantt that she lost her job as a recess 4 monitor at school because she was screaming at the children, told the 5 Vice Principal that she was bipolar, and the children made fun of her. 6 Plaintiff was hospitalized for her mental condition in May 2008. 7 that time, she was taking a variety of medications including Lithium, 8 Loestrin, 9 Following a seven-day hospitalization, the Lexapro and Phentermine 10 were discontinued, and Plaintiff began taking Strattera, Colnazapam, 11 and Cymbalta. (AR 693, 700.) 12 difficult 13 employment during this time period. 14 Plaintiff alleged that she has been disabled since April 30, 2008, so 15 the relevant question is whether Plaintiff s condition improved after 16 her hospitalization such that it would be fair to conclude she was 17 capable of full-time employment. 18 In Lexapro, to Geodon, conclude November that 2008, Shortly thereafter, in May Atenoll, Phentermine, and At Abilify. From this record alone, it would be Plaintiff Plaintiff was capable of full-time Of course, in her Application was assessed by clinical 19 neuropsychologist Dr. Wylie, who summarized the results of cognitive 20 functioning tests with a diagnosis on Axis I of major depressive 21 disorder, generalized anxiety disorder, and learning disorder NOS. (AR 22 548.) 23 The ALJ discussed the findings of treating psychologist Dr. De 24 Guzman from October 2010. (AR 22-23.) 25 De Guzman reported bipolar disorder and improvement in compulsive 26 shopping, and that Plaintiff s mood was more stable at times. The ALJ 27 noted that Dr. De Guzman rendered a guarded prognosis, concluding that 28 Plaintiff would likely need continued support from her parents. 8 In part, the ALJ noted that Dr. 1 Further noted were Dr. De Guzman s assessment of moderate limitations 2 in Plaintiff s ability to remember work-like procedures; maintain 3 attention for two-hour increments; maintain regular attendance and be 4 punctual within customary tolerances sustain an ordinary routine 5 without special supervision; work in coordination with or proximity to 6 others without being unduly distracted; make simple work-related 7 decisions; complete a normal work day/week without interruptions from 8 psychologically based symptoms; perform at a consistent pace without 9 an unreasonable number and length of rest periods; accept instructions 10 and respond appropriately to criticism from supervisors; get along 11 with co-workers or peers without unduly distracting them or exhibiting 12 behavioral extremes; respond appropriately to changes in a routine 13 work setting; deal with normal work stress; be aware of normal hazards 14 and take appropriate precautions; understand, remember and carry out 15 detailed instructions; deal with semi-skilled and skilled work; and 16 interact appropriately with the general public. 17 expected that due to her mental health impairments, Plaintiff would be 18 absent from work more than four days per month. (AR 730-731.) Dr. De Guzman 19 Despite this plethora of moderate mental health limitations, the 20 ALJ did not indicate whether she accepted or rejected all or any of 21 the conclusions rendered by Dr. De Guzman. 22 Guzman is correct that Plaintiff would be expected to be absent from 23 work more than four days per month, then in a one-year period this 24 would amount to almost 50 days, which would likely render Plaintiff 25 unemployable. 26 when Dr. De Guzman wrote this report, she noted something which many 27 of 28 recognized, which is that, in Dr. De Guzman s words, Despite her Certainly, if Dr. De Of further concern to the Court is that even in 2010, Plaintiff s mental health professionals 9 had also regularly 1 compliance with her 2 support, patient s stability has always been brief that she has not 3 been able to work at a regular job. (AR 732.) 4 accepted, again, a very definite question is raised as to Plaintiff s 5 employability. 6 adequately weighed this evidence, or determined whether to accept it 7 or reject it. 8 non-examining State Agency physicians to render a mental RFC is 9 troubling. Yet, medications, the Court individual does not therapy, and family If this conclusion is consider that the ALJ In that regard, the Decision s reliance on earlier, Plaintiff has a very long history of mental health 10 treatment, and has uniformly been diagnosed on Axis I with serious 11 disorders. 12 conclude that substantial evidence does not support the ALJ s RFC 13 determination. As in many cases involving mental health issues, there 14 are often times when medications may work better than at other times, 15 or a patient may show some improvement. 16 there would appear to be a well-documented history of instability, 17 unsuccessful response to medications, and ongoing issues which relate 18 directly to Plaintiff s ability to be employed. 19 Court agrees with the position articulated by Plaintiff as to the 20 mental health issues in dispute in this case, and will remand for 21 further hearing to address these issues.2 Based on all the evidence in the record, the Court must But in Plaintiff s case, For this reason, the 22 Further, on remand, the ALJ will examine whether Plaintiff is 23 obese, and if so, whether her obesity has any impact on her asthma and 24 knee problems. Further, a determination will be made as to whether 25 2 26 27 28 Concerning Plaintiff s argument in Issue 1 that the ALJ erred in failing to address all mental functioning limitations assessed by Dr. De Guzman, this is not necessarily correct. Rather, an ALJ is required to specifically address the relevant categories identified in the regulations (see infra at pp. 5-6). See Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002). 10 1 Plaintiff has any deleterious side effects from her medication which 2 are relevant to assessing her ability to work. 3 Finally, with regard to the third issue, concerning the 4 evaluation of Plaintiff s credibility and the consideration of the 5 evidence from Plaintiff s mother, the Commissioner argues that based 6 on the ALJ s determination that Plaintiff stabilized with medication 7 (AR 8 rejected as not fully credible. 9 are 23), Plaintiff s serious subjective questions to be testimony could legitimately be But as the Court has indicated, there resolved as to whether Plaintiff s 10 medication in fact has stabilized her mental health condition so as to 11 render her employable, and whether there are side effects from her 12 medications. 13 contention that the testimony of Plaintiff s mother was cumulative to 14 her own testimony. Indeed, it can reasonably be viewed that the 15 testimony of Plaintiff s mother might provide corroboration, for 16 example, of Dr. De Guzman s conclusion that Plaintiff would miss about 17 four days of work per month due to her mental condition. 18 exact testimony offered by Plaintiff s mother. 19 Court 20 credibility and the 21 mother will be reevaluated do novo. 22 23 24 orders In addition, the Court rejects the Commissioner s that on remand, the This was the Consequently, the determination of Plaintiff s weight to be afforded to the testimony of her For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 25 26 27 DATED: July 25, 2013 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 28 11
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