Patricia Packer v. Michael J Astrue, No. 5:2007cv01695 - Document 16 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. The Court ORDERS this matter remanded for further hearing consistent with this Memorandum Opinion. (READ ATTACHED ORDER FOR DETAILS) (esa)
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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 PATRICIA PACKER, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 07-01695-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. 21 consented that the case may be handled by the Magistrate Judge. 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. 25 Joint Stipulation ( JS ), and the Commissioner has filed the certified 26 AR. 27 28 Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the This Memorandum Opinion will constitute the Court s findings of fact and conclusions of law. After reviewing the matter, the Court 1 concludes that for the reasons 2 set forth, the decision of the Commissioner must be reversed. 3 4 STATEMENT OF ISSUES 5 Plaintiff raises the following issues: 6 1. Whether the Administrative Law Judge ( ALJ ) misrepresented 7 the evidence and consideration of Plaintiff s obsessive- 8 compulsive disorder ( OCD ); 9 2. 10 Whether the ALJ considered the treating psychiatrist s opinion; 11 3. Whether the ALJ made proper credibility findings; 12 4. Whether the ALJ posed a complete hypothetical question. 13 14 I 15 THE ALJ DID NOT HAVE SUFFICIENT EVIDENCE TO REJECT 16 THE TREATING PSYCHIATRIST S OPINION CONCERNING PLAINTIFF S OCD 17 18 A. Factual Chronology. 19 From October 2003 through at least March 2007, Plaintiff was a 20 patient of Dr. Kari Enge, a staff psychiatrist for the Department of 21 Mental Health in San Bernardino, California. (See AR 235, 230-252, 22 274-276, 277-278, 279-295, 301-302.) 23 submitted a letter to the Department of Social Services indicating 24 that 25 compulsive disorder; major depressive disorder with psychosis; panic 26 disorder; and generalized anxiety disorder. (AR 235.) The record also 27 includes a list of medications described by Dr. Enge, at least from Plaintiff s diagnoses On February 17, 2005, Dr. Enge included 28 2 the following: obsessive- 1 July 2006 through March 2007 (AR 291).1 2 At Plaintiff s hearing, which occurred on March 19, 2007 (AR 296- 3 341), testimony was taken from a medical expert ( ME ), Dr. Robin 4 Campbell, a clinical psychologist (AR 315).2 5 At the hearing, the ME questioned Plaintiff regarding the effects 6 of psychotropic medications. (AR 316-318.) There was also substantial 7 testimony by the ME concerning whether or not Plaintiff was compliant 8 with her psychotropic medications. 9 Enge s treatment notes regarding compliance with medication. The ME attempted to interpret Dr. She 10 opined, concerning these notes, I would say there is some concern in 11 the clinician s [Dr. Enge s] mind, or they wouldn t be presented in 12 that way. (AR 324.) 13 Dr. Campbell also opined that Dr. Enge was not treating Plaintiff 14 for obsessive-compulsive disorder. 15 based on Dr. Campbell s opinion as to medications that should be used 16 to treat OCD. ( Q: Is there a medication that can be used to treat 17 obsessive-compulsive disorder? 18 be? 19 20 This conclusion was apparently A: Yes, there is. Q: What would that A: Clonodine, I believe. (AR 329.) Plaintiff s counsel asked the ME how Plaintiff could be non- compliant with a medication that was not prescribed for her. The ME 21 22 23 24 25 26 27 28 1 It is uncertain if the list is a comprehensive description of medications prescribed by Dr. Enge during the treatment period. Most of the treatment charts do not list medications, citing the confidentiality provisions of California Welfare and Institutions Code §5328. Dr. Enge was not contacted to determine whether the list of medications was exhaustive. 2 The record contains the curriculum vitae ( CV ) of Dr. Campbell. (AR 32-34.) Dr. Campbell received a Ph.D. in clinical psychology in 2000, along with a M.Ph. in biostatistics in the same year. The CV also reflects: M.S. Clinical Psychopharmacology, in progress, Alliant University. (AR 32.) 3 1 responded, in part, that, 2 My assumption and I don t know is that there was 3 a reason why the psychiatrist believed that her compliance 4 is not good. 5 didn t document it well. But I can t imagine that she would 6 sort of, you know, penalize the Claimant for following 7 medical instructions, and then saying, you know, you re not 8 being compliant. 9 though I really can t read it. 10 And perhaps she didn t articulate it well and I assume there s a reason there, even (AR 334.) 11 12 In his decision, the ALJ gave great weight to Dr. Campbell s 13 opinion, but completely discounted Dr. Enge s opinions, noting, ... 14 for the same reasons as cited by the medical expert I do not give 15 these documents [Dr. Enge s treatment records] any weight. (AR 20.) 16 Similarly, 17 Plaintiff s OCD: the ALJ disregarded Dr. Enge s opinions concerning 18 I am in agreement with the comments of the medical 19 expert and find that there is no evidence that the claimant 20 was treated for obsessive-compulsive disorder, and/or that 21 Dr. Enge actually made this diagnosis. 22 (AR 21.) 23 24 B. Applicable Law and Analysis. 25 It is abundantly clear to the Court that the ALJ substantially 26 relied upon the testimony and opinions of the ME to interpret Dr. 27 Enge s 28 information regarding administration of psychotropic drugs. treatment notes, which include 4 a substantial amount of The 1 principal issue for the Court, therefore, is whether the ME s opinion 2 can provide substantial evidence in support of the ALJ s determination 3 to reject Dr. Enge s opinion regarding Plaintiff s OCD. 4 Social Security regulations make it clear that a psychological 5 consultant, if properly licensed, may provide opinions regarding 6 mental 7 subsection (f) of that regulation states in pertinent part that, 8 Psychological consultants are limited to the evaluation of mental 9 impairments, as explained in §404.1615(d). impairment. (See 20 C.F.R. §404.1616(d), (e).) Indeed, 10 The more difficult question, however, is whether a licensed 11 psychologist may opine concerning mental health issues insofar as 12 treatment 13 psychotropic medications. 14 the practice of licensed psychologists are embodied in the Business 15 and Professions Code ( B & P ). 16 that, The practice of psychology shall not include prescribing drugs, 17 performing surgery or administering electro-convulsive therapy. 18 P §2903 provides that a psychologist may administer psychological 19 services, 20 of those ... conditions involves the administration In California, the statutes which govern In B & P §2904, it is plainly stated involving the application methods and procedures of psychological 21 principles, 22 predicting, and influencing behavior, such as the principles 23 pertaining to learning, perception, motivation, emotions, 24 and 25 procedures 26 behavior modification, and hypnosis; and of constructing, 27 administering, and interpreting tests of mental abilities, 28 aptitudes, interpersonal of of relationships; interviewing, interests, and of the counseling, attitudes, 5 understanding, methods and psychotherapy, personality B & 1 characteristics, emotions, and motivations. 2 3 Prescription of psychotropic medications, and interpretation of 4 treatment involving psychotropic medications, would appear to be 5 clearly excluded with the parameters of the California regulatory 6 statutes. 7 B & P §2914.2 states that the Licensing Board shall encourage 8 licensed 9 psychopharmacology and biological basis of behavior as part of their 10 11 psychologists to take continuing education courses in continuing education. B & P §2914.3(10) provides that the Licensing Board shall develop 12 guidelines which are to include appropriate collaboration or 13 consultation with physicians or other prescribers to include the 14 assessment of the need for additional treatment that may include 15 medication or other medical evaluation and treatment... 16 Apparent efforts have been made in California to amend these 17 sections of the B & P which prohibit a psychologist from engaging in 18 the administration of psychotropic drugs. 19 993, introduced on February 23, 2007, would have amended B & P §2904 20 to delete the phrase prescribing drugs. For example, Senate Bill 21 The Attorney General of the State of California issued an Opinion 22 on December 19, 2002 (85 Ops. Cal. Atty. Gen. 247) which addresses the 23 following questions: 24 1. May the Legislature prohibit the prescribing of 25 drugs by clinical psychologists who have received training 26 with 27 guidelines adopted pursuant to the Legislature s directive, 28 when respect at the to the same use time of the 6 prescription Legislature drugs has under granted 1 prescription authorization to certain other health care 2 professionals? 3 2. May the Board of Psychology authorize by 4 regulation the prescribing of psychotropic medications by 5 clinical psychologists who have received training with 6 respect to the use of prescription drugs under guidelines 7 adopted pursuant to the Legislature s directive? 8 9 The Opinion distinguishes the practice of clinical psychology in 10 California from that of other health care professionals who are 11 permitted to prescribe drugs within the scope of their practice, such 12 as dentists, podiatrists, and certified optometrists. 13 General s Opinion concludes, however, that there is a distinction 14 between the practice of clinical psychology and these other health 15 care professions: 16 The clinical psychologists in question The Attorney are not 17 similarly situated with respect to the other health care 18 professionals who have been granted prescribing authority. 19 First, the training that a clinical psychologist may receive 20 concerning the use of prescription drugs is intended ... to 21 improve the ability of clinical psychologists to collaborate 22 with 23 training psychologists to prescribe medication. ([B & P] 24 §2914.3, 25 prescribing 26 professionals 27 prescribing of medications within their respective scope of 28 practice. physicians subd. and (c).) drugs is is not In intended contrast, to the provide for training received by the other health directed at and focused upon in care the This difference in the purposes of the training 7 1 affects the training itself. It must be conceded that 2 clinical psychologists do not receive the identical training 3 in prescribing drugs that, for example, dentists receive. 4 5 The Attorney General s Opinion continues by noting that, 6 Accordingly, clinical psychologists are not similarly 7 situated with respect to other health care professionals who 8 are permitted to prescribe drugs. 9 is different causing differences to exist in both their 10 Their scope of practice training and the types and uses of the drugs involved. 11 12 Based upon applicable law, the only reasonable conclusion which 13 the Court can reach is that in the Social Security context, in 14 California, 15 regarding mental health issues insofar as such an opinion is related 16 to or based on the administration of psychotropic drugs. 17 if a psychologist may not legally prescribe drugs, that reflects an 18 underlying 19 properly trained to do so. 20 testimony 21 professional which provided competent evidence on which the ALJ could 22 have rejected the opinion of the treating psychiatrist regarding 23 Plaintiff s OCD. 24 14, 2005 consultative examination by psychiatrist Linda M. Smith (see 25 AR at 182-188), Dr. Smith s own report indicates that she reviewed 26 some outpatient psychiatric records from October of 2004 through 27 January of 2005. (AR at 182.) 28 Dr. Smith s review was the February 17, 2005 diagnostic letter of Dr. a clinical presumption by a psychologist that a is not psychologist qualified is not to opine Logically, qualified or In the record in this case, there is no psychiatrist or other qualified mental health While some reference is made by the ALJ to an April Obviously excluded, therefore, from 8 1 Enge indicating that she diagnosed Plaintiff with, among other things, 2 obsessive-compulsive 3 treatment records post-dating Dr. Smith s one-time examination which, 4 obviously, could not have been addressed by Dr. Smith. disorder. Moreover, there are substantial 5 In any event, it is somewhat puzzling to the Court that the ALJ 6 questioned whether Dr. Enge had even diagnosed Plaintiff with OCD. 7 Nothing could be clearer than the diagnosis of OCD contained in Dr. 8 Enge s letter of February 17, 2005. 9 references to the administration of psychotropic drugs, and other 10 treatment, in the medical records which would appear to support, or 11 certainly be consistent with this diagnosis. 12 competent expert to interpret Dr. Enge s records, there is simply no 13 substantial evidence in the record to support the ALJ s conclusions.3 14 Since this matter must be remanded, the Court will not devote Moreover, there are significant In the absence of a 15 substantial time to discussing Plaintiff s remaining issues. 16 Court will note, however, that with regard to the ALJ s assessment of 17 Plaintiff s credibility, the decision fails to provide the requisite 18 clear and convincing reasons to reject Plaintiff s reported symptoms. 19 Ultimately, the ALJ s determination that, [a]fter considering the 20 evidence 21 medically determinable impairments could reasonably be expected to 22 produce the alleged symptoms, but that the claimant s statements 23 concerning the intensity, persistence and limiting effects of these of record, the undersigned finds that the The claimant s 24 25 26 27 28 3 The Court is also concerned about the extensive level of speculation which occurred during the hearing over such issues as what Dr. Enge s treatment notes meant regarding whether Plaintiff was compliant with her psychotropic medications. This could have easily been cleared up by development of the record; e.g., by contacting Dr. Enge to obtain clarification, if necessary. 9 1 symptoms are not entirely credible is an insufficient recitation of 2 reasons. 3 credibility assessment (see AR at 16-17), the only specific reference 4 to the record which would support appellate review is a discussion of 5 the activity questionnaire provided by Plaintiff s sister. (See AR at 6 18, 116-124.) 7 responses to this questionnaire are exaggerated and inconsistent with 8 the claimant s actual admitted activities (AR 18), does not form a 9 basis to depreciate Plaintiff s own credibility. While the ALJ correctly cited the regulations governing The ALJ s conclusion in the decision that, The The statements in 10 the questionnaire are not those of Plaintiff, but of her sister. The 11 ALJ could not, therefore, rely upon inconsistencies between the 12 evaluation by Plaintiff s sister and Plaintiff s own statements as a 13 basis for depreciating Plaintiff s credibility. 14 Finally, the Court need not substantially address Plaintiff s 15 fourth issue, which is whether the ALJ posed a complete hypothetical 16 question to the vocational expert ( VE ). 17 the limitations determined by Dr. Enge were not included in the 18 hypothetical question posed. (See AR at 339-340.) 19 remand order will require a reevaluation of Plaintiff s mental health 20 status, and of Dr. Enge s opinion, it is not necessary to presently 21 evaluate that issue. 22 23 24 Plaintiff indicates that Since the Court s Based on the foregoing, the Court ORDERS this matter remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 25 26 27 DATED: October 6, 2008 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 28 10
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