Cathy Page v. Carolyn W. Colvin, No. 2:2013cv00965 - Document 19 (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 CATHY PAGE, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) ) COMMISSIONER OF SOCIAL SECURITY,1 ) Defendant. ) ____________________________________) NO. CV 13-965-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 20 judgment are denied, and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 26 Plaintiff filed a complaint on February 13, 2013, seeking review of the Commissioner s denial of benefits. The parties consented to 27 1 28 Carolyn W. Colvin, who became Acting Commissioner of Social Security as of February 14, 2013, is hereby substituted as Defendant in this matter. See Fed. R. Civ. P. 25(d)(1); 42 U.S.C. § 405(g). 1 proceed before a United States Magistrate Judge on March 20, 2013. 2 Plaintiff filed a motion for summary judgment on August 23, 2013. 3 Defendant filed a motion for summary judgment on September 23, 2013. 4 The Court has taken the motions under submission without oral 5 argument. See L.R. 7-15; Order, filed February 19, 2013. 6 7 BACKGROUND 8 9 Plaintiff asserts disability since August 1, 2005, based on, 10 inter alia, alleged psychiatric problems (Administrative Record 11 ( A.R. ) 51-52, 57-58, 153-60, 174). 12 Questionnaire introduced into the Administrative Record as Exhibit 13 B20F reflects medical opinions that Plaintiff: 14 difficulty working at a regular job on a sustained basis ; (2) has 15 moderate restriction of activities of daily living ; (3) has 16 moderate difficulties in maintaining social functioning ; (4) 17 often experiences deficiencies of concentration, persistence or 18 pace resulting in failure to complete tasks in a timely manner (in 19 work settings or elsewhere) ; and (5) would have to be absent from 20 work about twice a month (A.R. 491-94). 21 have been signed jointly by Patrick Humphreys, a licensed clinical 22 social worker, and Dr. T. Angeles, Plaintiff s treating psychiatrist 23 (A.R. 494). A Mental Impairment (1) would have Exhibit B20F appears to 24 25 In a decision dated May 14, 2010, the Administrative Law Judge 26 ( ALJ ) found Plaintiff not disabled (A.R. 70-75). 27 failed to mention Exhibit B20F (id.). 28 Appeals Council remanded the matter to the ALJ because, inter alia, 2 This decision On December 15, 2010, the 1 the ALJ s May 14, 2010 decision failed to mention Exhibit B20F (A.R. 2 81-82). 3 4 In a decision dated April 5, 2011, the ALJ again found Plaintiff 5 not disabled (A.R. 11-17). This decision again failed to mention 6 Exhibit B20F (id.). 7 consists of records from the same mental health provider that employs 8 the authors of Exhibit B20F (Long Beach Mental Health Center) (A.R. 9 14). The decision did cite Exhibit B21F, which As to Exhibit B21F, the ALJ stated, I give no weight to records 10 from the Long Beach Mental Health Center, because their assessment is 11 self-serving and not consistent with the objective findings or the 12 record as a whole (Exhibit B-21F) (id.). 13 14 Plaintiff then argued to the Appeals Council that the ALJ again 15 had failed to properly evaluate the opinions of treating sources at 16 Long Beach Mental Health, Exhibit B20F (A.R. 151). 17 however, the Appeals Council denied review (A.R. 1-4). This time, 18 19 STANDARD OF REVIEW 20 21 Under 42 U.S.C. section 405(g), this Court reviews the 22 Administration s decision to determine if: (1) the Administration s 23 findings are supported by substantial evidence; and (2) the 24 Administration used correct legal standards. 25 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 26 499 F.3d 1071, 1074 (9th Cir. 2007). 27 relevant evidence as a reasonable mind might accept as adequate to 28 support a conclusion. See Carmickle v. Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 3 1 (1971) (citation and quotations omitted); see also Widmark v. 2 Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). 3 4 DISCUSSION 5 6 Plaintiff contends, inter alia, that the Administration erred 7 with respect to the medical opinions reflected in Exhibit B20F. 8 For the reasons discussed below, the Court agrees. 9 10 A treating physician s conclusions must be given substantial 11 weight. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see 12 Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ( the ALJ must 13 give sufficient weight to the subjective aspects of a doctor s 14 opinion. . . . 15 treating physician ) (citation omitted); see also Orn v. Astrue, 495 16 F.3d 625, 631-33 (9th Cir. 2007) (discussing deference owed to 17 treating physician opinions). 18 opinions are contradicted,2 if the ALJ wishes to disregard the 19 opinion[s] of the treating physician he . . . must make findings 20 setting forth specific, legitimate reasons for doing so that are based 21 on substantial evidence in the record. 22 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); 23 see Rodriguez v. Bowen, 876 F.2d at 762 ( The ALJ may disregard the 24 treating physician s opinion, but only by setting forth specific, This is especially true when the opinion is that of a Even where the treating physician s Winans v. Bowen, 853 F.2d 25 26 2 27 28 Rejection of an uncontradicted opinion of a treating physician requires a statement of clear and convincing reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). 4 1 legitimate reasons for doing so, and this decision must itself be 2 based on substantial evidence ) (citation and quotations omitted). 3 4 Furthermore, [t]he ALJ has a special duty to fully and fairly 5 develop the record and to assure that the claimant s interests are 6 considered. 7 counsel. 8 also Sims v. Apfel, 530 U.S. 103, 110-11 (2000) ( Social Security 9 proceedings are inquisitorial rather than adversarial. This duty exists even when the claimant is represented by Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983); see It is the 10 ALJ s duty to investigate the facts and develop the arguments both for 11 and against granting benefits. . . . ). 12 ALJ rendered his most recent decision, section 404.1512(e) of 20 13 C.F.R. provided that the Administration will seek additional evidence 14 or clarification from your medical source when the report from your 15 medical source contains a conflict or ambiguity that must be resolved, 16 the report does not contain all of the necessary information, or does 17 not appear to be based on medically acceptable clinical and laboratory 18 diagnostic techniques. 19 Mar. 25, 2012);3 see also Smolen v. Chater, 80 F.3d at 1288 ( If the 20 ALJ thought he needed to know the basis of Dr. Hoeflich s opinions in 21 order to evaluate them, he had a duty to conduct an appropriate 22 inquiry, for example, by subpoenaing the physicians or submitting 23 further questions to them. 24 to augment the record ) (citations omitted). 25 former section 404.1512(e) is triggered when there is ambiguous 26 evidence or when the record is inadequate to allow for proper As effective at the time the See 20 C.F.R. § 404.1512(e) (eff. through He could also have continued the hearing The ALJ s duty under 27 3 28 Paragraph (e) has since been deleted from this section. See 20 C.F.R. § 404.1512. 5 1 evaluation of the evidence. Mayes v. Massanari, 276 F.3d 453, 459-60 2 (9th Cir. 2001) (citation omitted). 3 4 In the present case, the ALJ erred by failing to mention the 5 treating psychiatrist s opinions reflected in Exhibit B20F. See 6 Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 2007) ( Of 7 course, an ALJ cannot avoid these requirements [to state specific, 8 legitimate reasons] by not mentioning the treating physician s opinion 9 and making findings contrary to it. ); Salvadore v. Sullivan, 917 F.2d 10 13, 15 (9th Cir. 1990) (implicit rejection of treating physician s 11 opinion cannot satisfy Administration s obligation to set forth 12 specific, legitimate reasons ). 13 14 Defendant s Motion appears to suggest that the medical opinions 15 reflected in Exhibit B20F may not have been the opinions of Dr. 16 Angeles (as distinguished from the opinions of Mr. Humphreys) 17 (Defendant s Motion at 2-3). 18 Exhibit B20F did not unambiguously indicate that the report expressed 19 Dr. Angeles opinions, the ALJ erred by failing to address the matter. 20 At a minimum, the ALJ should have further developed the record to 21 clarify any alleged ambiguity arising from the joint signatures on 22 Exhibit B20F. 23 Massanari, 276 F.3d at 459-60; former C.F.R. § 404.1512(e). Even if Dr. Angeles signature on See Sims v. Apfel, 530 U.S. at 110-11, Mayes v. 24 25 To the extent the ALJ intended the stated reasoning directed to 26 Exhibit B21F to apply also to Exhibit B20F, the ALJ s stated reasoning 27 was legally insufficient. 28 assessment is self-serving and not consistent with the objective As a matter of law, the statement that the 6 1 findings or the record as a whole, fails to state specific, 2 legitimate reasons for rejecting the opinion of a treating physician. 3 See, e.g., McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) 4 ( broad and vague reasons for rejecting treating physician s opinions 5 do not suffice); Embrey v. Bowen, 849 F.2d at 421 ( To say that the 6 medical opinions are not supported by sufficient objective findings or 7 are contrary to the preponderant conclusions mandated by the objective 8 findings does not achieve the level of specificity our prior cases 9 have required. . . . ). 10 11 Defendant appears to argue that the ALJ s reliance on the 12 conflicting opinions of the consultative examining psychiatrist 13 suffices to justify the ALJ s implicit rejection of Dr. Angeles 14 opinions (Defendant s Motion at 5-6). 15 The contradiction of a treating physician s opinion by another 16 physician s opinion triggers rather than satisfies the requirement of 17 stating specific, legitimate reasons. 18 Commissioner, 574 F.3d 685, 692 (9th Cir. 2009); Orn v. Astrue, 495 19 F.3d at 631-33; Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). This argument must be rejected. See, e.g., Valentine v. 20 21 To the extent Defendant suggests other reasons why the ALJ may 22 have implicitly rejected Dr. Angeles opinions, the Court is unable to 23 affirm the ALJ s decision on the basis of any of the suggested 24 reasons. 25 (court cannot affirm the decision of an agency on a ground that the 26 agency did not invoke in making its decision ). 27 /// 28 /// See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) 7 1 The Court is also unable to conclude that the ALJ s errors were 2 harmless. For example, Dr. Angeles opined that Plaintiff s 3 psychiatric impairment would cause Plaintiff to be absent from work 4 about twice a month (A.R. 493). 5 hearing, a vocational expert testified that an acceptable number of 6 days missed from work would be approximately one day per month (A.R. 7 62). At the most recent administrative 8 9 Because the circumstances of this case suggest that further 10 administrative review could remedy the ALJ s errors, remand is 11 appropriate. 12 generally INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 13 administrative determination, the proper course is remand for 14 additional agency investigation or explanation, except in rare 15 circumstances).4 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see 22 23 24 25 26 27 28 4 There are outstanding issues that must be resolved before a proper disability determination can be made in the present case. For example, it is not clear whether the ALJ would be required to find Plaintiff disabled for the entire claimed period of disability, even if the opinions of Dr. Angeles were fully credited. See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). For at least this reason, the Ninth Circuit s decision in Harman v. Apfel, 211 F.3d 1172 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) does not compel a reversal for the immediate payment of benefits. 8 1 CONCLUSION 2 3 For all of the foregoing reasons,5 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: October 2, 2013. 10 11 ______________/S/__________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 9

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