Benjamin Brian Arvin v. Michael J Astrue, No. 2:2012cv08203 - Document 19 (C.D. Cal. 2013)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Stephen J. Hillman (sbu)
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-SOUTHERN DIVISION 11 12 13 14 15 16 Benjamin Brian Arvin, Plaintiff, 17 18 19 20 21 22 23 24 25 26 27 vs. Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant. ) SA CV 12-8203-SH ) ) ) MEMORANDUM DECISION )AND ORDER ) ) ) ) ) ) ) I. INTRODUCTION This matter is before the Court for review of the decision by the Commissioner of the Social Security Administration ( Commissioner ) denying Plaintiff s application for Supplemental Security Income ( SSI ) under Title XVI of the Social Security Act. 42 U.S.C § 1381 et seq. Pursuant to 28 U.S.C. 636(c), the parties have consented that the case may be handled by the undersigned. The action 28 1 1 arises under 42 U.S.C § 405(g), which authorizes this Court to enter judgment upon 2 the pleadings and transcript of the record before the Commissioner. The Plaintiff 3 and Defendant have filed their pleadings and the Defendant has filed a certified 4 transcript of the record ( AR ). After reviewing this matter, this Court concludes 5 that the decision of the Commissioner should be reversed and remanded for further 6 proceedings. 7 8 9 II. PROCEEDINGS On August 19, 2009, Plaintiff Benjamin Brian Arvin ( Plaintiff ) applied for SSI 10 benefits, alleging a disability that began on January 1, 2009. Plaintiff received a 11 written decision dated October 19, 2009, notifying him that he was denied benefits 12 based on a determination that he was not disabled. Subsequently, Plaintiff requested 13 reconsideration of his claim for SSI payments. In a decision dated December 4, 14 2009, it was again determined that Plaintiff did not qualify for benefits. At this time, 15 Plaintiff requested a hearing before an Administrative Law Judge ( ALJ ), and later 16 appeared before ALJ Sally Reason in Los Angeles, California on February 28, 2011. 17 In her decision dated April 14, 2011, the ALJ concluded that the Plaintiff was not 18 disabled. Thereafter, the Plaintiff requested that the Appeals Council review the 19 ALJ s decision. After the Appeals Council denied the Plaintiff s request for review 20 of the decision, the Plaintiff filed this action for court review. 21 22 23 III. PARTIES CONTENTIONS Plaintiff raises two issues. First, the Plaintiff claims that the ALJ failed to 24 adequately consider whether Plaintiff met or equaled a listed impairment. 25 Second, the Plaintiff claims that the ALJ failed to articulate legally sufficient 26 reasons for rejecting Plaintiff s pain testimony. 27 In response, the Defendant argues that the ALJ adequately considered 28 Plaintiff s impairments in reaching her Step Three Finding, and that the ALJ 2 1 provided specific reasons supported by substantial evidence to conclude that the 2 Plaintiff s statements lacked credibility. 3 Each issue is discussed in turn. 4 III. DISCUSSION 5 6 7 STANDARD OF REVIEW Under 42 U.S.C § 405(g), this Court reviews the ALJ s decision to 8 determine whether: (1) the decision was supported by substantial evidence; and 9 (2) the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 10 846 (9th Cir. 1991). Substantial evidence is more than a mere scintilla, 11 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of 12 New York v. N.L.R.B., 305 U.S. 197, 229 (1938)), but less than a preponderance. 13 Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 14 1988). This Court must consider the record as a whole, weighing both the 15 evidence that supports and detracts from the Secretary's conclusion. Green v. 16 Heckler, 803 F.2d 528, 530 (9th Cir. 1986). A denial of benefits may be set aside 17 where it is not supported by substantial evidence or is based on legal error. 18 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 19 20 ISSUE 1 21 Plaintiff argues that the ALJ failed to adequately consider whether Plaintiff 22 met or equaled a listed impairment. Defendant responds that the ALJ adequately 23 assessed Plaintiff s impairments to conclude that he did not meet or equal a listed 24 impairment. 25 The ALJ employs a five-step sequential evaluation in determining whether 26 a claimant is disabled. 20 C.F.R. § 404.1520(a)(4) (2013). Step Three considers 27 whether the impairment meets or medically equals one of the listed impairments. 28 Id. Listings for mental disorders under Step Three will contain a statement 3 1 describing the disorder(s), paragraph A criteria, and a set of impairment-related 2 functional limitations, paragraph B criteria. Social Security: Disability 3 Evaluation Under Social Security 12.00 Mental Disorders - Adult (2013). 4 http://www.ssa.gov/disability/professionals/bluebook/12.00-MentalDisorders5 Adult.htm#12_03. For several listings, if paragraph B criteria are not satisfied, 6 the ALJ will assess paragraph C criteria, which are additional functional 7 criteria. Id. 8 Every medical opinion received will be evaluated using specific factors in 9 order to determine the weight given to that medical opinion. 20 C.F.R. § 10 404.1527(c) (2013). The treating physician s weight is generally afforded the 11 greatest weight in disability cases.... Batson v. Comm r of Soc. Sec. Admin., 359 12 F.3d 1190, 1195 (9th Cir. 2004) (quoting Tonapetyan v. Halter, 242 F.3d 1144, 13 1149) (9th Cir. 2004)). Furthermore, good reasons in [the] ... decision for 14 the weight [accorded the] treating source s opinion will always [be] give[n]. 15 20 C.F.R. § 404.1527(c)(2) (2013). If the ALJ wishes to disregard the opinion 16 of the treating physician, he or she must make findings setting forth specific, 17 legitimate reasons for doing so that are based on substantial evidence in the 18 record. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Merely providing 19 vague and conclusory reasons for a decision does not suffice, and will constitute 20 legal error. See Rollins v. Massanari, 261 F.3d 853, 859 (9th Cir. 2001). 21 In her decision, ALJ Reason concluded that Plaintiff s mental 22 impairments, considered singly and in combination, did not meet or medically 23 equal the criteria of listings 12.04 Affective Disorders ( 12.04 ) and 12.09 24 Substance Addiction Disorders ( 12.09 ). (AR 26). She noted that neither 12.04 25 nor 12.09 met the paragraph B criteria (AR 26), which require marked 26 restrictions of activities for disability purposes (AR 26) in categories which 27 include: activities of daily living; social functioning; and concentration, 28 persistence, or pace. 20 C.F.R. § 416.920(c)(3)-(4), (d)(1) (2013) (emphasis 4 1 added). Because Plaintiff s impairments only caused a mild limitation ¦ in 2 ability to perform activities of daily living, and moderate limitations in ¦ ability 3 to engage in social functioning and to perform activities requiring concentration, 4 persistence, or pace, (AR 27) (emphasis added), Plaintiff did not satisfy the 5 marked requirements of paragraph B criteria. After determining Plaintiff did 6 not satisfy the paragraph B criteria, ALJ Reason was then required to assess 7 paragraph C criteria. As to paragraph C criteria, Plaintiff rightly points out 8 that the ALJ made a one-sentence conclusion simply stating that the paragraph 9 C criteria were not satisfied. (AR 27). Not one reason was articulated to support 10 this sweeping conclusion. Indeed, per the Psychiatric Review Technique Form 11 (PRTF) dated March 29, 2011 from Plaintiff s treating psychiatrist Dr. Pallsoc 12 (AR 321), Plaintiff was noted to meet three of the paragraph C criteria, one of 13 which included a complete inability to function independently outside the area 14 of one s home. (AR 333). Thus, the ALJ seemingly relied on the treating 15 psychiatrist s PRTF to conclude that the impairments were mild or moderate 16 per the paragraph B criteria, but chose to disregard the psychiatrist s 17 assessment of paragraph C criteria. In doing so, ALJ Reason did not discuss 18 the factors involved to determine how much weight she would accord the treating 19 psychiatrist s opinion; did not provide good reasons for explaining how much 20 weight she actually gave to his opinion; and finally, did not provide specific, 21 legitimate reasons for disregarding part of his opinion. In addition, the ALJ s 22 one-sentence conclusion regarding the absence of paragraph C criteria was 23 vague and conclusory, and was both unsupported and unexplained by the 24 available evidence. This constitutes legal error. 25 In addition to disregarding the treating physician s indication of the 26 presence of paragraph C criteria, the ALJ disregarded the handwritten portion 27 of his PRTF, which stated Plaintiff had paranoia making him unable to interact 28 with people well and hav [sic] problem maintaining a job. (AR 334). ALJ 5 1 Reason gave no specific reason for disregarding the opinion. Dr. Pallsoc also 2 noted that Plaintiff was dependent on his elderly mother. Id. Equally important 3 is the fact that he concluded his report with a multi-axial assessment of Plaintiff s 4 disorders, listing the diagnoses Schizoaffective Disorder Dependent Type, and 5 Paranoid Personality under Axis I and Axis II, respectively. Id. This diagnosis 6 on the handwritten portion of his notes (AR 334), in conjunction with checked7 off boxes indicating symptoms of 12.03 Schizophrenic, Paranoid, and Other 8 Psychotic Disorders ( 12.03 ) (AR 324), means that a 12.03 assessment should 9 have been considered by the ALJ. In her discussion of the listing issue, ALJ 10 Reason did not acknowledge this recent opinion by the treating physician, nor did 11 she provide a specific reason for disregarding it. 12 As the ALJ failed to adequately assess the evidence in concluding that the 13 Plaintiff did not meet a listed impairment, this constituted legal error. The Court 14 thereby finds that a reversal and remand for further consideration is warranted. 15 16 ISSUE 2 17 Plaintiff argues that the ALJ failed to give clear and convincing reasons for 18 rejecting his testimony. Defendant responds that the ALJ provided a valid basis 19 based on substantial evidence for finding the claimant not fully credible. 20 To determine whether the claimant's testimony regarding the severity of 21 symptoms is credible, the ALJ may consider, for example: (1) ordinary 22 techniques of credibility evaluation, such as the claimant's prior inconsistent 23 statements concerning the symptoms; (2) unexplained or inadequately explained 24 failure to seek treatment or to follow a prescribed course of treatment; and (3) the 25 claimant's daily activities. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). 26 The ALJ can reject the claimant's testimony about the severity of her 27 symptoms only by offering specific, clear and convincing reasons for doing so. 28 Id. at 1281. The ALJ must specifically identify the testimony she or he finds not 6 1 to be credible and must explain what evidence undermines the testimony. 2 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (quoting Reddick v. 3 Chater, 157 F.3d 715, 722 (9th Cir. 1998)). While an ALJ need not discuss all 4 evidence presented to her, Vincent Ex. rel. Vincent v. Heckler, 739 F.2d 1393, 5 1394-95 (9th Cir. 1984), she must explain why significant probative evidence 6 has been rejected. Id. (quoting Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 7 1981)). 8 First, the ALJ did not offer a clear and convincing reason for discrediting 9 Plaintiff s testimony based on his inconsistent statements concerning his 10 symptoms. (AR 29). Plaintiff told state agency psychologist Dr. McGee in 11 October, 2009, that although he had been taking medication, he still continue[d] 12 to hear voices on a daily basis, and experienced problems with attention, 13 concentration, and memory, and ¦ [felt] anxious. (AR 216). ALJ Reason 14 determined that Plaintiff s contention to Dr. McGee that his symptoms still 15 persisted despite following a medication regime was not accurate, and [was] 16 inconsistent with the actual treating records and progress notes submitted. (AR 17 29). The medication logs, however, support Plaintiff s contention that the 18 symptoms persisted, as is evident in a medication support service form from 19 August, 2010, which states AH (auditory hallucinations), anxiety, mood swings, 20 and paranoia as Target Symptoms/Emergent Issues/Client Goals. (AR 320). 21 Furthermore, the treating psychiatrist also noted these symptoms in the 22 handwritten portion of his PRTF dated March 29, 2011. (AR 334). Because the 23 record supports Plaintiff s contention that he was still experiencing symptoms at 24 the time of his visit with Dr. McGee, the ALJ s reasons for discrediting 25 Plaintiff s testimony were not clear and convincing. 26 Second, the ALJ did not offer a clear and convincing reason for 27 discrediting Plaintiff s testimony based on his treatment history, which included 28 only occasional mental health treatment over the past several years. (AR 29). 7 1 However, the record indicates that Plaintiff was a patient at both Compton 2 Mental Health and Los Angeles County Department of Mental Health from 3 2001 to 2010, with frequent visits to each. (AR 238 275, 276 318). Contrary 4 to the ALJ s statement that Plaintiff sought treatment approximately two or three 5 times a year (AR 28), medication logs from Los Angeles County Department of 6 Mental Health show that the Plaintiff was seen several times a year. For example, 7 in 2004, Plaintiff was seen eight times; in 2005, eight times; and in 2008, four 8 times. (AR 261, 269 271; 256 259; 292 294). Furthermore, while symptoms 9 were often alleviated, the medication logs from years 2001 to 2011 show a 10 consistent persistence of depression, mood swings, A/H and paranoia throughout 11 the years. The ALJ also stated that Plaintiff s treatment consisted primarily of 12 monitoring of his medications with very little evidence of actual therapy or 13 other intensive outpatient care. (AR 29). However, the ALJ cannot assert 14 objectively that medical records did not indicate therapy, and then interpret this 15 necessarily as Plaintiff s unexplained failure to seek therapy. In addition, 16 assuming the Plaintiff did miss appointments or fail to seek therapy, the inference 17 that Plaintiff s testimony is not credible should not necessarily follow given that 18 the Plaintiff here suffers from mental illness, auditory hallucinations in 19 particular. Claimants suffering from mental illness do not always realize the need 20 for, or have an appreciation of, the need for treatment. The Plaintiff not having 21 sought treatment which would include therapy or other intensive outpatient 22 care, (AR 29), was therefore not a convincing reason to discredit Plaintiff s 23 testimony. 24 Third, the ALJ did not offer clear and convincing reasons for discrediting 25 Plaintiff s testimony based on the opinion that his daily activities did not comport 26 with his alleged symptoms. Specific findings of a claimant s daily activities can 27 serve as evidence sufficient to discredit a claimant s testimony. Fair v. Bowen, 28 885 F.2d 597, 603 (9th Cir. 1989). Where a claimant spends a substantial part of 8 1 his day engaged in pursuits involving the performance of physical functions that 2 are transferable to a work setting, a specific finding as to this fact may be 3 sufficient to discredit an allegation of disabling excess pain. Id. at 603. However, 4 claimants are not required to be utterly incapacitated to be eligible for benefits, 5 and many home activities may not be easily transferable to a work environment 6 .... Smolen, 80 F.3d at 1284 n.7 (9th Cir. 1996). Here, ALJ Reason relied on 7 several pieces of evidence to conclude that Plaintiff s testimony was not credible. 8 First, Plaintiff told Dr. McGee that his daily activities consisted primarily of 9 watching television, using the computer, and visiting family members. (AR 10 217). Second, Plaintiff self-reported in his Function Report from 2009 that his 11 daily activities included playing the guitar and doing his own personal care 12 without difficulty. Id. That the Plaintiff engages in these daily activities does not 13 necessarily imply they are a fair proxy for the physical and mental demands of 14 the workplace, especially where the Plaintiff s activities are social in nature (e.g., 15 playing the guitar, visiting family members [AR 217]), or short-term in duration 16 (e.g., half an hour per day, several times a week [AR 176]). Third, Plaintiff s 17 mother completed a Third-Party Function Report, which the ALJ found 18 indicated this [Plaintiff s self-reported] level of functioning. Plaintiff s mother, 19 who spends eight to ten hours per day with Plaintiff, (AR 174), did confirm 20 Plaintiff s activities in her report, but also observed that: Plaintiff s house chores 21 and yard-work would take 1/2 hour[] 2 3 times a week ; his ability to handle 22 stress was not well in work place were [sic] there is noise he become confused ; 23 and that an unusual fear of his included people hearing his thoughts and people 24 after him. (AR 176, 180). Though recognizing that Plaintiff and his mother 25 included many of the same daily activities in their reports, the ALJ ignored the 26 mother s statements which would support a finding that Plaintiff s testimony is 27 credible. Fourth, the ALJ considered the treating psychiatrist s assessment from 28 March 2011 noting that Plaintiff did not have a severe mental impairment. 9 1 However, she failed to mention or discuss the psychiatrist s handwritten notes, in 2 which he wrote Plaintiff had mood swings and paranoia that mak[e] him unable 3 to interact with people well, affecting his ability to maintain a job. (AR 334). 4 The ALJ thus did not provide clear and convincing reasons for discrediting 5 Plaintiff s testimony because she ignored probative third-party statements 6 regarding his symptoms and considered insubstantial daily activities as 7 inconsistent with Plaintiff s alleged symptoms. 8 The ALJ did not provide clear and convincing reasons for rejecting 9 Plaintiff s testimony. Moreover, she failed to explain why she disregarded certain 10 probative evidence such as statements made by Plaintiff s treating psychiatrist. 11 V. CONCLUSION AND ORDER 12 13 For the foregoing reasons, the decision of the Commissioner is reversed 14 and remanded for further consideration pursuant to sentence four of 42 U.S.C. § 15 405(g). 16 DATED: June 10, 2013 17 18 19 _______________________________ 20 21 22 STEPHEN J. HILLMAN UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 10
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