Bridgette Roulhac v. Michael J Astrue, No. 5:2007cv01676 - Document 19 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)

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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 BRIDGETTE ROULHAC, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 07-01676-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on January 4, 2008, seeking review of 19 the denial by the Social Security Commissioner ( Commissioner ) of 20 plaintiff s application for supplemental security income ( SSI ). 21 February 22 undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 23 636(c). The parties filed a Joint Stipulation on September 24, 2008, in 24 which: 25 and awarding benefits or, in the alternative, remanding the matter for 26 a new administrative hearing; and defendant seeks an order affirming the 27 Commissioner s decision. 28 Stipulation under submission without oral argument. 4, 2008, the parties consented to proceed before On the plaintiff seeks an order reversing the Commissioner s decision The Court has taken the parties Joint SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 On January 17, 2003, plaintiff protectively filed an application 3 4 for SSI.1 5 alleges an inability to work since January 17, 2003, due to HIV and 6 complications therefrom, back and knee pain, fatigue, headaches, and 7 depression. 8 as a cafeteria attendant, cashier II, home attendant, and child 9 monitor. (Administrative Record ( A.R. ) 38, 78-81, 435.) (A.R. 25, 50, 83.) Plaintiff She has past relevant work experience (A.R. 446-47.) 10 11 Plaintiff s application was denied initially, upon reconsideration, 12 and by Administrative Law Judge Philip E. Moulaison in a written 13 decision dated April 27, 2005. 14 2005, the Social Security Administration received plaintiff s request 15 for review of the hearing decision (A.R. 11), and on June 25, 2005, the 16 Appeals Council denied review of the decision (A.R. 8-10). (A.R. 24-29, 50-54, 56-59.) On June 13, 17 18 On August 3, 2005, plaintiff filed a Complaint in this Court in 19 Case No. EDCV 05-00669. 20 decision and remanded the case for further administrative proceedings 21 (the 2007 Order ). 22 Council remanded the case back to an Administrative Law Judge for 23 compliance with this Court s 2007 Order.2 On March 8, 2007, this Court reversed the ALJ s (A.R. 451-66.) On April 26, 2007, the Appeals (A.R. 479-82.) 24 25 1 26 2 The actual application filing date is February 7, 2003. (A.R. 78.) In its Order effectuating this Court s 2007 Order, the Appeals Council stated: 27 28 [Plaintiff] filed a subsequent application for Title XVI benefits on May 19, 2005, and the State agency found that she 2 1 On July 24, 2007, a remand hearing was held before Administrative 2 Law Judge Lowell Fortune ( ALJ ). (A.R. 632-68.) On October 19, 2007, 3 the ALJ issued an unfavorable decision; that decision is now at issue in 4 this case. (A.R. 435-48.) 5 SUMMARY OF ADMINISTRATIVE DECISION 6 7 8 In his written decision, the ALJ found that plaintiff suffers from 9 the following severe impairments: human immunodeficiency virus (HIV); 10 chronic dislocation, left shoulder; mood disorder secondary to medical 11 condition; and cocaine dependence. 12 that plaintiff does not have an impairment or combination of impairments 13 that meets or medically equals Listings 1.02B, 12.04, 12.09, or 14.08, 14 or any other listed impairment set forth in 20 C.F.R. Part 404, Subpart 15 P, Appendix 1. (A.R. 438.) The ALJ further found (Id.) 16 17 The ALJ determined that plaintiff had the physical residual 18 functional capacity to perform light exertion, and mentally, plaintiff 19 is able to understand moderately detailed instructions and perform 20 moderately complex tasks in a habituated setting. 21 reliance on the opinion of the medical expert, the ALJ rejected the (A.R. 436.) In 22 23 24 25 26 became disabled on May 1, 2005. The State agency relied on new evidence from [plaintiff s] treating sources. The Appeals Council hereby affirms the finding that [plaintiff] was disabled beginning May 1, 2005. The Appeals Council vacates the Administrative Law Judge s decision and remands this case to an Administrative Law Judge for further proceedings on the issue of disability prior to May 1, 2005. 27 28 (A.R. 481.) Accordingly, the time period in issue is January 17, 2003, through April 30, 2005. 3 1 opinions of plaintiff s treating physicians, Harvey A. Elder, M.D., and 2 Wilfred W. Shiu, M.D. (A.R. 441, 445-46.) 3 4 Based on the ALJ s residual functional capacity assessment and the 5 testimony of a vocational expert, the ALJ found that plaintiff is unable 6 to perform any of her past relevant work, but jobs exist in significant 7 numbers in the national economy that plaintiff can perform. 8 47.) 9 a disability, as defined by the Social Security Act, since February 7, 10 2003, the date the application was filed, through April 30, 2005. (A.R. 11 448.) (A.R. 446- Accordingly, the ALJ concluded that plaintiff has not been under 12 13 STANDARD OF REVIEW 14 15 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 16 decision to determine whether it is free from legal error and supported 17 by substantial evidence in the record as a whole. 18 F.3d 625, 630 (9th Cir. 2007). 19 evidence as a reasonable mind might accept as adequate to support a 20 conclusion. 21 a mere scintilla but not necessarily a preponderance. 22 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 23 record can constitute substantial evidence, only those reasonably 24 drawn from the record will suffice. 25 1063, 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. While inferences from the Widmark v. Barnhart, 454 F.3d 26 27 Although this Court cannot substitute its discretion for that of 28 the Commissioner, the Court nonetheless must review the record as a 4 1 whole, weighing both the evidence that supports and the evidence that 2 detracts from the [Commissioner s] conclusion. 3 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 4 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 5 responsible for determining credibility, resolving conflicts in medical 6 testimony, and for resolving ambiguities. 7 1035, 1039-40 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 8 9 The Court will uphold the Commissioner s decision when the evidence 10 is susceptible to more than one rational interpretation. Burch v. 11 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 12 review only the reasons stated by the ALJ in his decision and may not 13 affirm the ALJ on a ground upon which he did not rely. 14 at 630; see also Connett, 340 F.3d at 874. 15 the Commissioner s decision if it is based on harmless error, which 16 exists only when it is clear from the record that an ALJ's error was 17 inconsequential to the ultimate nondisability determination. Robbins 18 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 19 Comm r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 20 F.3d at 679. However, the Court may Orn, 495 F.3d The Court will not reverse 21 22 DISCUSSION 23 24 Plaintiff alleges the following four issues: (1) whether the ALJ 25 properly considered the opinion of plaintiff s treating physician, 26 Harvey A. Elder, M.D.; (2) whether the ALJ properly considered the 27 28 5 1 opinion of plaintiff s treating physician, Wilfred W. Shiu, M.D.;3 (3) 2 whether the ALJ properly considered the side effects of plaintiff s 3 medications; and (4) whether the ALJ posed a complete hypothetical 4 question to the vocational expert. 5 at 3.) (Joint Stipulation ( Joint Stip. ) The Court addresses plaintiff s first two issues together. 6 7 I. The ALJ Failed To Provide Specific And Legitimate Reasons For Disregarding The Opinions Of Plaintiff s Treating Physicians. 8 9 A treating physician s conclusions must be given substantial 10 11 weight. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). Even when 12 the treating physician s opinions are contradicted, if the ALJ wishes 13 to disregard the opinion[s] of the treating physician he . . . must make 14 findings setting forth specific, legitimate reasons for doing so that 15 are based on substantial evidence in the record. 16 F.2d 643, 647 (9th Cir. 1987); see also McAllister v. Sullivan, 888 F.2d 17 599, 602 (9th Cir. 1989)( broad and vague reasons for rejecting the 18 treating physician s opinion do not suffice). 19 burden by setting out a detailed and thorough summary of the facts and 20 conflicting clinical evidence, stating his interpretation thereof, and 21 making findings. 22 1989). Winans v. Bowen, 853 The ALJ can meet this Magallanes v. Brown, 881 F.2d 747, 751 (9th Cir. 23 24 On March 1, 2002, Wilfred W. Shiu, M.D., a public health physician 25 who treated plaintiff from May 2000, through November 2002, and from 26 April 2005, through January 2006, completed a Physician Statement at the 27 28 3 The ALJ mistakenly refers to Dr. Shiu as Dr. Shier. 6 (A.R. 445.) 1 request of the Social Security Administration.4 (A.R. 228-29.) Dr. Shiu 2 opined that plaintiff was limited to less than sedentary exertion, will 3 have difficulties in maintaining social functioning, and difficulties in 4 completing 5 concentration, persistence, and pace as a result of chronic fatigue5, 6 depression, and probable schizophrenia. 7 further noted that plaintiff has an inability to concentrate fully, 8 and her fatigue leads to some weakness. tasks in a timely manner due to deficiencies (A.R. 228-29.) in Dr. Shiu (A.R. 229.) 9 10 In a March 20, 2003 report, Harvey A. Elder, M.D., an internist who 11 treated plaintiff approximately monthly throughout most of the period 12 from April 19, 2000, through August 2005, opined that plaintiff is 13 limited to a less than sedentary physical exertional level, primarily 14 due to difficulties standing and walking because of knee and back pain. 15 (A.R. 329.) 16 plaintiff s functional level, Dr. Elder noted that plaintiff had a 17 Global Assessment of Functioning ( GAF ) of 60,6 had a limited ability 18 to care for [herself], and was depressed. In response to a question asking for a description of (A.R. 329.) In response 19 20 4 21 Plaintiff treated with various physicians at the San Bernardino Department of Corrections and the San Bernardino County Department of Public Health during 2003, and 2004. 22 5 25 According to http://www.mayoclinic.com, chronic fatigue is a complicated disorder characterized by extreme fatigue that may worsen with physical or mental activity, but doesn t improve with rest. Although there are many theories about what causes the condition ranging from viral infections to psychological stress - in most cases the cause is still unknown. The primary signs and symptoms of chronic fatigue are: fatigue and loss of memory or concentration. 26 6 23 24 27 A GAF of 51-60 shows moderate symptoms, such as those which would affect speech, or moderate difficulty in social, occupational, or school functioning. Diagnostic and Statistical Manual of Mental Disorders Text Revision ( DSM ), 34 (4th ed. 2000). 28 7 1 to the same question in his July 23, 2003 report, Dr. Elder noted that: 2 [plaintiff] has problems with chronic fatigue, weakness, concentration, 3 diarrhea, lower back pain, depression, [and] possible [schizophrenia]. 4 (A.R. 363.) 5 limitations 6 inability to concentrate fully, and he further observed that plaintiff 7 exhibited findings/indications of a diagnosed mental impairment, i.e., 8 depression and possible [schizophrenia]. In describing the objective findings supporting the he found, Dr. Elder noted plaintiff s fatigue and (A.R. 364.) 9 10 In his written decision, the ALJ rejected the opinions of both Dr. 11 Elder and Dr. Shiu, because in the ALJ s view, neither opinion is 12 supported by the evidence [and plaintiff] was working in illicit 13 activity during this period, which is indicative of her ability to 14 work during the relevant time frame. 15 the light of the record as a whole, these reasons do not withstand 16 scrutiny. (A.R. 445-46.) When examined in 17 18 While the ALJ properly rejected Dr. Elder s opinion regarding 19 plaintiff s back and knee limitations, which are not supported by the 20 objective 21 pertaining to plaintiff s mental impairment does not fairly represent 22 the significance of her mental impairment and the limitations arising 23 from it, as reflected in the record. For instance, although Dr. Elder s 24 reports indicate that plaintiff has a limited ability to care for 25 herself due to depression, as the ALJ acknowledges, Dr. Elder s reports 26 also show more significant symptoms and limitations than the ALJ 27 described in his discussion of the evidence. 28 noted that plaintiff has problems with chronic fatigue, weakness, medical evidence, the ALJ s 8 discussion of the evidence Specifically, Dr. Elder 1 concentration [and] possible schizophrenia. 2 opined 3 concentrate fully - a limitation that would clearly impact plaintiff in 4 the workplace. 5 opinion -- specifically, his opinion regarding plaintiff s problems with 6 chronic fatigue, weakness, concentration, and possible schizophrenia -- 7 are consistent with the record as a whole, the ALJ failed to mention 8 these limitations in his discussion of the evidence, much less provide 9 specific and legitimate reasons for rejecting them.7 that plaintiff s mental (A.R. 364.) impairment (A.R. 363.) renders her Dr. Elder unable to Although these aspects of Dr. Elder s 10 Further, 11 while the briefly Shiu s opinion and possible 13 schizophrenia, the ALJ fails to set forth the requisite specific and 14 legitimate reasons for rejecting it. 15 830 (9th Cir. 1995)(when the ALJ rejects the opinion of a treating 16 physician, even if it is contradicted, the ALJ may reject that opinion 17 only 18 supported by substantial evidence in the record); 19 753 F.2d 1450, 1456 (9th Cir. 1984)(it is error for an ALJ to ignore or 20 misstate 21 conclusion). the specific competent fatigue, Dr. regarding providing chronic mentions 12 by plaintiff s ALJ and depression, See Lester v. Chater, 81 F.3d 821, legitimate evidence in the reasons for doing so, Gallant v. Heckler, record to justify his 22 23 Moreover, the ALJ s rejection of the opinions of Drs. Elder and 24 Shiu based on the fact that plaintiff, admittedly, is capable of working 25 7 26 27 28 The ALJ also rejected Dr. Elder s opinion because he is not a licensed psychiatrist. (A.R. 446.) While it is true that Dr. Elder is not a psychiatrist, he has been plaintiff s internist and has treated plaintiff regularly since April 19, 2000. Dr. Elder s dealings with plaintiff over the several years certainly have given him insight into plaintiff s physical and mental health. 9 1 as a prostitute for two hours a day, this fact does not constitute a 2 legitimate reason to reject their opinions. 3 The ALJ s casual reference to plaintiff s ability to engage in limited 4 illicit 5 plaintiff s treating physicians fails to demonstrate how plaintiff s 6 ability to work part-time as a prostitute translates into the ability to 7 engage in, and sustain, full-time competitive work. 8 Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987)(disability claimant 9 need not vegetate in dark room to be deemed eligible for benefits); 10 Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989)( The Social Security 11 Act does not require that an individual be utterly incapacitated to be 12 eligible for benefits, and many home activities may not be easily 13 transferable to a work environment where it might be impossible to rest 14 periodically or take medication. ). activity to support his (A.R. 224, 438, 637-38.) rejection of the opinions (A.R. 445.) of See 15 16 Accordingly, remand is required to allow the ALJ the opportunity to 17 provide legally sufficient reasons, if such reasons exist, for rejecting 18 the opinions of Drs. Elder and Shiu regarding plaintiff s mental 19 limitations. 20 21 II. The ALJ Failed To Consider Properly The Side Effects Of Plaintiff s Medications On Her Ability To Work. 22 23 When an ALJ evaluates a claimant s limitations, he must consider 24 25 evidence regarding the side effects of medications. 26 Ruling 96-7p indicates that the type, dosage, effectiveness, and side 27 effects of any medication the individual takes or has taken to alleviate 28 pain or other symptoms should be 10 considered in Social Security the disability 1 evaluation. See also 20 C.F.R. § 416.929(c)(3)(iv). The Ninth Circuit 2 has observed that an ALJ must consider all factors that might have a 3 significant impact on an individual s ability to work. 4 Shalala, 9 F.3d 813, 817 (9th Cir. 1993)(citation omitted). 5 factors may include side effects of medications as well as subjective 6 evidence of pain. Erickson v. Such Id. at 818. 7 8 In his decision, the ALJ briefly acknowledges plaintiff s testimony 9 and records regarding the side effects of her medications,8 but the ALJ 10 does not expressly consider the impact of these side effects on 11 plaintiff s ability to work.9 12 significance of the alleged side effects nor, in his hypothetical to the 13 vocational expert, references them. (A.R. 666.) The ALJ is required to 14 consider those side effects in evaluating plaintiff s disability claim, 15 and his failure to do so constitutes error. The ALJ neither properly dismisses the 16 17 As this case is being remanded so that the ALJ can reconsider the 18 opinions of plaintiff s treating physicians, the ALJ should consider the 19 20 8 21 22 Plaintiff s treatment records and the list of medications submitted by plaintiff at the hearing reveal that, at various times, plaintiff has been prescribed the following medications: viramune, risperdal, tylenol 3, norco, metronidazole, benzatropine, ranitidine, lotensin, megestrol, seroquel, and wellbutrin. (A.R. 138, 248, 272, 367-69.) 23 9 24 25 26 27 28 Plaintiff complained of medication side effects of fatigue, weakness, nausea, diarrhea, and hair loss as a result of taking several medications for her mental impairment(s), HIV, and high blood pressure. (A.R. 248, 272, 363, 427, 656-57.) The Court notes, however, that although plaintiff may experience these symptoms, there are multiple references throughout the record to non-compliance with prescribed medication. (A.R. 253, 395, 535, 545, 560). The Court questions the extent to which these symptoms can be attributed to medication side effects or whether plaintiff s non-compliance is related to the sideeffects of her medication. 11 1 impact of plaintiff s medication side effects, if any, prior to 2 rendering his ultimate determination regarding plaintiff s disability. 3 4 III. Until The ALJ Has Properly Considered Plaintiff s The Opinions Of 5 Plaintiff s Treating Physicians, And Medication Side Effects, The 6 Court Cannot Assess The Adequacy Of The Hypothetical Posed To The 7 Vocational Expert. 8 In posing a hypothetical to a vocational expert, the ALJ must 9 10 accurately reflect all of the claimant s limitations. 11 at 12 substantial evidence, the hypothetical question posed must consider all 13 of the claimant s limitations. 14 hypothetical questions that do not include all of claimant s limitations 15 are insufficient and warrant remand). 422-24. For the vocational expert s Embrey, 849 F.2d testimony to constitute Andrews, 53 F.3d at 1044 (holding that 16 17 In this case, the hypothetical posed to the vocational expert may 18 be incomplete to the extent that it does not reflect appropriately, in 19 whole or in part, the opinions of Drs. Elder and Shiu and the alleged 20 side effects of plaintiff s medication. 21 either properly reject the treating physicians opinions and the alleged 22 side effects of plaintiff s medications in accordance with the governing 23 legal standards, or the ALJ must incorporate them into the hypothetical 24 posed to the vocational expert. On remand, the ALJ should 25 26 IV. Remand Is Required. 27 28 The decision whether to remand for further proceedings or order an 12 1 immediate award of benefits is within the district court s discretion. 2 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 3 useful purpose would be served by further administrative proceedings, or 4 where the record has been fully developed, it is appropriate to exercise 5 this discretion to direct an immediate award of benefits. 6 ( the decision of whether to remand for further proceedings turns upon 7 the likely utility of such proceedings ). 8 outstanding issues that must be resolved before a determination of 9 disability can be made, and it is not clear from the record that the ALJ 10 would be required to find the claimant disabled if all the evidence were 11 properly evaluated, remand is appropriate. 12 appropriate to allow the ALJ an opportunity to remedy the above- 13 mentioned deficiencies and errors. 14 F.3d 15 appropriate if enhancement of the record would be useful); McAllister, 16 888 F.2d at 603 (remand appropriate to remedy defects in the record). 587, 593 (9th Cir. Where no Id. at 1179 However, where there are Id. Here, remand is See, e.g., Benecke v. Barnhart, 379 2004)(remand for further proceedings is 17 18 Although not raised as an issue by the parties, it is unclear to 19 the Court whether the payment of benefits to plaintiff is prohibited by 20 her extensive substance abuse, of which there is abundant evidence in 21 the record. 22 Indeed, although the ALJ erred in his assessment of the opinions of 23 plaintiff s treating physicians regarding her mental health limitations 24 and possible medication side effects, the Court is not suggesting that 25 the ALJ s ultimate disability determination is incorrect. It does 26 appear, whether 27 plaintiff s substance abuse is a contributing factor material to her 28 mental limitations. See Bustamonte v. Massanari, 262 F.3d 949, 954 (9th (See, e.g., A.R. 204, 400, 532, 545, 548, 556, 567, 569.) however, that the ALJ side-stepped 13 the issue of 1 Cir. 2001)(ALJ errs by deciding an impairment is the product and 2 consequence of alcohol abuse or drug abuse before deciding whether the 3 impairment is disabling). 4 [i]t appears [plaintiff] has never discontinued her cocaine abuse for 5 any 6 plaintiff s 7 psychoactive substance abuse, mostly crack cocaine (A.R. 209), the 8 Court 9 plaintiff s mental health limitations because of the extensive evidence 10 prolonged period condition questions Given the ALJ s express recognition that (A.R. is whether 443), and secondary the ALJ Dr. to Kikani s her dismissed opinion problem the related significance that to of of her substance abuse.10 11 12 Plaintiff bears the burden of proving that her substance abuse is 13 not a contributing factor material to [her] disability. 14 Astrue, 481 F.3d 742, 747 (9th Cir. 2007)(plaintiff bears the burden of 15 proving that substance abuse is not a contributing factor material to 16 his disability ). Nevertheless, on remand, if after properly addressing 17 plaintiff s treating physicians opinions regarding plaintiff s mental 18 limitations and the alleged side effects, if any, of her medications, 19 the 20 impairment, then the ALJ should consider whether that impairment would 21 remain in the absence of her substance abuse and, if so, whether it is 22 disabling. ALJ concludes that plaintiff has a severe See Parra v. mental health 23 24 25 10 26 27 28 Divy Kikani, M.D., a psychiatrist who examined plaintiff at the request of the Commissioner, opined that, [f]rom the psychiatric point of view, [plaintiff] is moderately psychiatrically disabled from the underlying psychiatric condition, which, in my opinion, is in reaction to the medical condition and also secondary to her problem related to psychoactive substance abuse, mostly crack cocaine. (A.R. 209.) 14 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: September 21, 2009 14 15 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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