Dalene Short v. Michael J Astrue, No. 5:2008cv00190 - Document 24 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh (rp)
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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 DALENE SHORT, ) for Shandale R. Navarro, a minor, ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the ) Social Security Administration, ) ) Defendant. ) ) Case No. ED CV 08-190 PJW MEMORANDUM OPINION AND ORDER 16 17 Before the Court is Plaintiff s appeal of a decision by Defendant 18 Social Security Administration ( the Agency ), denying her application 19 for Supplemental Security Income ( SSI ). 20 decision that Plaintiff was not disabled within the meaning of the 21 Social Security Act is not supported by substantial evidence, it is 22 reversed and the case is remanded.1 23 Because the Agency s On July 22, 2005, Plaintiff applied for SSI. (Administrative 24 Record ( AR ) 27.) The Agency denied the application initially and on 25 reconsideration. 26 granted a hearing before an Administrative Law Judge ( ALJ ). (AR 28-37.) Plaintiff then requested and was (AR 38- 27 28 1 This action was brought be Dalene Short on behalf of her minor daughter Shandale Navarro. For ease in understanding, however, the Court refers to Navarro as Plaintiff throughout this decision. 1 41.) On August 31, 2007, Plaintiff and her mother appeared with 2 counsel at the hearing and testified. 3 2007, the ALJ issued a decision denying benefits. 4 Plaintiff appealed the ALJ s decision to the Appeals Council, which 5 denied her request for review. 6 action. (AR 213-21.) (AR 3-5.) On October 18, (AR 7-21.) She then commenced this 7 Plaintiff claims that the ALJ erred by failing to properly 8 consider: 1) the opinion of her treating psychiatrist; 2) the type, 9 dosage, and side effects of her medication; and 3) Plaintiff s and her 10 mother s testimony at the hearing. 11 15-16.) 12 erred when he rejected Plaintiff s and her mother s testimony without 13 providing adequate reasons for doing so and that the matter must be 14 remanded for further consideration of their testimony. (Joint Stip. at 3-4, 9-10, 11-13, For the following reasons, the Court concludes that the ALJ 15 In her first claim of error, Plaintiff contends that the ALJ 16 failed to provide legally sufficient reasons for rejecting the opinion 17 of her treating psychiatrist, Dr. Louis Glatch. 18 As explained below, the Court disagrees. 19 (Joint Stip. at 3-4.) In October 2005, state agency reviewing physicians Schrift and 20 Holmes found that Plaintiff had no psychiatric impairment. 21 105.) 22 herself by overdosing on medication. (AR Plaintiff claims that, in January 2006, she attempted to kill (AR 88, 92, 118, 196-98.2) She 23 24 25 26 27 28 2 The evidence supporting Plaintiff s claim that she attempted suicide is lacking. The only records from her inpatient care at Loma Linda Hospital following her reported suicide attempt are three copies of a one-page discharge form, each of which contains hand-written changes from the previous version, (AR 196-98), and a Patient Information Sheet, which contains information regarding hospital policies and procedures. (AR 199.) The discharge form notes that Plaintiff was hospitalized for depression, not suicide. (AR 196.) 2 1 was hospitalized for a week. 2 to a mental health clinic for outpatient treatment and therapy. 3 92-97.) 4 Cristina Dawes, who took Plaintiff s history and ultimately diagnosed 5 her with major depressive episode recurrent severe without psychotic 6 feature. 7 of Functioning ( GAF ) score of 40. 8 endorsed by psychiatrist Louis F. Glatch because, as a therapist, 9 Dawes was apparently not authorized to diagnose patients on her own. 10 11 (AR 196-98.) Thereafter, she reported (AR Plaintiff was initially screened at the clinic by therapist (AR 97.) She assessed Plaintiff with a Global Assessment (AR 97.) Dawes form was (AR 97.) In a treatment note dated March 28, 2006, Dr. Glatch noted that 12 Plaintiff reported that her mood was O.K., that her affect was 13 appropriate, and that her thoughts were linear. 14 diagnosed her with depression [not otherwise specified], and 15 assigned a GAF of 45. 16 Plaintiff s next appointment for six weeks later. 17 treatment notes between April and August 2006 show that Plaintiff 18 reported improvements in her appetite, sleep, and energy, and no 19 further suicidal ideations. 20 (AR 90.) (AR 90.) He He prescribed Zoloft and scheduled (AR 91.) His (AR 85-87.) In an evaluation completed in October 2006, neurologist Joel Ross 21 and another reviewing physician ( M. Skape it appears) found, among 22 other things, that Plaintiff had low self esteem as different from 23 peers but still less than marked. (AR 114.) They determined that 24 25 26 27 28 The only other evidence in the record relating to Plaintiff s suicide attempt are notes reflecting that Plaintiff reported to health care providers that she had attempted suicide. (AR 88, 92, 118.) This issue impacts not only Plaintiff s claim that she is disabled but also her credibility. On remand, the parties should attempt to obtain the records from Loma Linda regarding Plaintiff s hospitalization from January 31, 2006, to February 6, 2006. 3 1 Plaintiff s impairments did not meet or equal any Listing. 2 16.) 3 (AR 111- In November 2006, Plaintiff went off her meds and her suicidal 4 ideations returned, leading Dr. Glatch to increase her dosage of 5 Zoloft. 6 Zoloft was not effective and prescribed Prozac, instead. 7 Plaintiff visited Dr. Glatch in March 2007, again, and reported that 8 her behavior, mood, appetite, and energy were all good. 9 Glatch instructed her to return 12 weeks later. (AR 83, 98.) In February 2007, Dr. Glatch determined that (AR 82, 98.) (AR 81.) (AR 81.) 10 returned in July 2007, and again reported doing better. 11 Glatch scheduled her next appointment for 12 weeks later. 12 Dr. Plaintiff (AR 80.) Dr. (AR 80.) In his October 2007 decision, the ALJ concluded that Plaintiff s 13 mood disorder with depression constituted a severe impairment, but 14 that it did not restrict her activities of daily living or her ability 15 to maintain concentration, persistence, or pace. 16 noted that the reports from her mental health examinations indicated 17 that she was within normal limits, oriented in all spheres, and had 18 normal intellectual functioning. 19 in school at the appropriate grade level for her age (though she 20 studied at home because of back pain), that she was being seen by a 21 psychiatrist only once a month, and that her depression was being 22 controlled with medication. 23 (AR 13.) (AR 13-14.) He He also noted that she was (AR 13.) The ALJ discounted the February 28, 2006 assessment prepared by 24 Dawes and endorsed by Glatch--diagnosing Plaintiff with major 25 depression and a GAF score of 40--on the grounds that the findings 26 were not supported by the medical record and not credible or 27 consistent with the mental status examination conducted that same 28 day, which revealed nothing more than occasional insomnia due to back 4 1 pain. 2 28, 2006 report, noting only that Plaintiff s mental health treatment 3 had been minimal, that she underwent psychotherapy once a month, and 4 that she took Prozac, which he contended she admitted improved her 5 symptoms. 6 was apparently good enough by March 2007 that Dr. Glatch did not 7 schedule her next appointment until July 2007, and that, in July 2007, 8 her condition was reported as stable. 9 (AR 14.) The ALJ did not directly address Dr. Glatch s March (AR 13.) He also noted that her mental health condition (AR 13.) Plaintiff argues that the ALJ rejected Dr. Glatch s opinions 10 (at pages 88-91 and 97 of the administrative record) without providing 11 legally sufficient reasons. 12 reasons, the Court disagrees. 13 (Joint Stip. at 3.) For the following As a general rule, a treating doctor s opinion is given priority 14 over the opinions of non-treating doctors. 15 625, 632 (9th Cir. 2007). 16 is contradicted by another doctor s opinion, an ALJ must provide 17 specific and legitimate reasons, supported by substantial evidence in 18 the record, for doing so. 19 consistent with the treating doctor s opinion, the ALJ is not required 20 to explain why the treating doctor s opinion was not followed. 21 Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). 22 Orn v. Astrue, 495 F.3d To reject a treating doctor s opinion that Id. Where, however, the ALJ s findings are See The ALJ read and considered the February 28, 2006 screening form 23 prepared by Dawes and endorsed by Dr. Glatch found at pages 92-97 of 24 the administrative record. 25 the form in his decision. 26 conclusions, including the GAF score of 40, he noted that Plaintiff 27 had not reported any behavioral or school problems, that she 28 interacted well with others, and that, therefore, the GAF score was (AR 14.) (AR 14.) 5 He summarized the findings from In rejecting Dr. Glatch s 1 not credible or consistent with the mental status examination 2 performed at the time. 3 reasons for rejecting the doctor s findings and they are supported by 4 substantial evidence in the record. (AR 14.) These are specific and legitimate 5 A GAF score of 40 is reserved for people who have [s]ome 6 impairment in reality testing or communication (e.g., speech is at 7 times illogical, obscure, or irrelevant) OR major impairment in 8 several areas, such as work or school, family relations, judgment, 9 thinking or mood (e.g., depressed man avoids friends, neglects family, 10 and is unable to work; child frequently beats up younger children, is 11 defiant at home, and is failing in school). 12 Statistical Manual of Mental Disorders-IV-TR at 34. 13 display any of these characteristics on the day she was screened by 14 Dawes. 15 that she was articulate and insightful. 16 Plaintiff had no problems with thought content or delusions, though 17 her sentences and ideas were sometimes broken or unfinished. 18 These findings are not consistent with a person whose speech is at 19 times illogical, obscure, or irrelevant. 20 (AR 92.) Diagnostic and Plaintiff did not Dawes noted that Plaintiff spoke quietly, but found (AR 92, 95.) She found (AR 95.) Dawes also noted that Plaintiff was being home-schooled because 21 of her back pain but was keeping grades up and had no behavioral or 22 school problems. 23 have any problems with her siblings and had the support of her 24 parents. 25 experiencing a major impairment in school, family relations, judgment, 26 thinking, or mood, either. 27 justification for Dr. Glatch s GAF score of 40 and the ALJ properly 28 rejected it. (AR 92, 94.) (AR 94.) Dawes found that Plaintiff did not Thus, there was no indication that Plaintiff was Absent any of these problems, there was no 6 1 As to Dr. Glatch s March 2006 report at pages 88-91 of the 2 administrative record, the Court agrees with Plaintiff that the ALJ 3 failed to specifically mention the report, but does not agree that 4 this failure requires remand. 5 almost two months after Plaintiff purportedly attempted to commit 6 suicide. 7 that Plaintiff was still not doing too well, there is an alternate 8 score of 60 reported along with the score of 45. 9 whatever the significance of the GAF score of 45, it is undermined by This report was prepared by Dr. Glatch Though it does contain a GAF score of 45, which suggests (AR 90.) Thus, 10 the alternative score of 60 in the same entry. 11 however, the Court does not interpret the report as an opinion that 12 Plaintiff was unable to function in October 2007 due to her 13 psychological condition. 14 as the GAF score of 45/60 are Dr. Glatch s impressions of Plaintiff s 15 then-current condition. 16 July 2007, Plaintiff was not suffering from any emotional maladies at 17 all. 18 onset insomnia[,] conc[entration] is o.k.[,] no [suicide ideation,] no 19 [illegible] ) .) More importantly, The entries contained in the report as well Dr. Glatch s later reports suggest that, by (AR 80 ( mood is o.k.[,] appetite is good[,] energy is o.k.[,] 20 The ALJ s ultimate conclusion that Plaintiff s condition had 21 improved significantly between February 2006 and October 2007, when he 22 issued his decision, and that Plaintiff did not have any psychiatric 23 ailments that more than minimally affected her functional abilities, 24 is supported by the record, including Dr. Glatch s records. 25 the ALJ was not required to explain why he was rejecting Dr. Glatch s 26 opinion. 27 28 As such, Meanel, 172 F.3d at 1113. In her second claim of error, Plaintiff contends that the ALJ erred when he failed to discuss the fact that Plaintiff s psychiatric 7 1 medications did not help her and that they caused side effects, which 2 the ALJ overlooked. 3 merit. 4 (Joint Stip. at 9, 10.) This claim is without As an initial matter, the record does not support Plaintiff s 5 claim that the psychiatric medications prescribed by Dr. Glatch were 6 ineffective. 7 Plaintiff s mood, appetite, and sleep reportedly improved over time as 8 she was prescribed Zoloft and, later, Prozac. 9 Additionally, Plaintiff s suicidal ideations returned after she went 10 off her medications in November 28, 2006, but subsided when she took 11 them, which suggests that the medications had been helpful. 12 83.) 13 As noted above, Dr. Glatch s treatment notes show that (AR 80-87.) (AR 80- Plaintiff also claims that the ALJ failed to properly consider 14 the side effects of her medication in analyzing whether she was 15 impaired. 16 claims about side effects. 17 As explained below, the record does not support Plaintiff s The type, dosage, effectiveness, and side effects of medication 18 taken by a claimant to treat pain or other symptoms are factors 19 relevant to a disability determination and should be considered by the 20 ALJ. 21 claimant bears the burden of proving that a medication s side effects 22 are disabling. 23 1985) (holding that claimant failed to meet burden of proving that an 24 impairment was disabling where he produced no clinical evidence 25 showing that his prescription narcotic use impaired his ability to 26 work); see also Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002) 27 (upholding ALJ s rejection of claimant s statements that her 28 medications affected her concentration and made her dizzy where no 20 C.F.R. ยง 404.1529(c)(3)(iv); see also SSR 96-8p. But a See Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 8 1 objective evidence was put forth and the ALJ properly found her 2 testimony was generally not credible). 3 There is very little evidence in this record supporting 4 Plaintiff s claimed side effects. Dr. Glatch s treatment notes show 5 that, on May 25, 2006, Plaintiff complained that she was more 6 irritable ; on October 24, 2006, she complained of flu like 7 [symptoms] ; and on July 18, 2007, she complained of insomnia. 8 80, 84, 86.) 9 was treated by Dr. Glatch, she either never complained of side effects (AR On all of her other visits over the 18-month period she 10 or denied that she was experiencing any when asked by Dr. Glatch. 11 81-83, 85, 87.) 12 that she was suffering from side effects. 13 other than the claimant s testimony about side effects, the ALJ s 14 failure to address them is not error. 15 240 F.3d 1157, 1164 (9th Cir. 2001) (holding ALJ did not err in 16 excluding alleged side effects from hypothetical question where the 17 record contained only passing mentions of the side effects of 18 [claimant s] medication . . . but there was no evidence of side 19 effects severe enough to interfere with [claimant s] ability to 20 work ). 21 (AR Further, there is no objective evidence establishing Where there is no evidence See, e.g., Osenbrock v. Apfel, For these reasons, this claim is rejected. In her third claim of error, Plaintiff contends that the ALJ 22 failed to provide specific reasons for rejecting her testimony. 23 (Joint Stip. at 11-13, 15-16.) 24 Court agrees with Plaintiff. For the reasons set forth below, the 25 ALJ s are tasked with judging the credibility of witnesses. 26 making a credibility determination, an ALJ may take into account 27 ordinary credibility evaluation techniques. 28 1273, 1284 (9th Cir. 1996). In Smolen v. Chater, 80 F.3d Where, as here, a claimant has produced 9 1 objective medical evidence of an impairment which could reasonably be 2 expected to produce the symptoms alleged and there is no evidence of 3 malingering, the ALJ can only reject the claimant s testimony for 4 specific, clear, and convincing reasons. 5 6 Id. at 1283-84. The ALJ addressed the substance of Plaintiff s testimony and his credibility finding in two brief paragraphs as follows: 7 At the hearing the claimant s . . . testimony was not 8 credible to the extent [she] alleged total disability. 9 claimant testified she completes her school assignments at 10 home and does not attend the school campus classes due to 11 back pain. 12 pain. 13 alleged back surgery has been recommended when she attains 14 age 21. 15 admitted that back pain is relieved with medication and 16 depressive symptoms are improved with Prozac. The She also lies down frequently to relieve back She is frequently out of breath due to asthma. She She is depressed about her physical condition. 17 She . . . 18 After considering the evidence of record, the undersigned 19 finds that the claimant s medically determinable impairments 20 could reasonably be expected to produce the alleged 21 symptoms, but that the statements concerning the intensity, 22 persistence and limiting effects of the claimant s symptoms 23 are not entirely credible. 24 25 (AR 16.) Plaintiff complains that the ALJ s reasons for rejecting the 26 testimony are not specific, clear, and convincing, and are not 27 supported by the evidence. (Joint Stip. at 11-13.) 28 10 The Court agrees. 1 As a starting point, the Court finds that the ALJ s finding that 2 Plaintiff admitted at the administrative hearing that her back pain 3 was relieved with medication and her depression improved with Prozac 4 is simply not true. 5 things at the administrative hearing and the ALJ s findings to the 6 contrary are clearly erroneous. 7 Plaintiff never testified to either of these Once these reasons are eliminated, there seems to be little or no 8 support for the ALJ s credibility finding; he merely summarily 9 concluded that the testimony was not credible without providing any 10 justification. 11 84. 12 further consideration of the credibility issue. 13 (AR 16.) This is improper. Smolen, 80 F.3d at 1283- For that reason, it is reversed and the case is remanded for The Agency disagrees. It has combed through the ALJ s 12-page 14 decision and pulled out facts contained therein which tend to support 15 the ALJ s finding that Plaintiff s testimony was not credible. 16 Stip. at 14.) 17 in the ALJ s decision that would support the conclusion that Plaintiff 18 was not credible. 19 doing well in school. 20 undermine his credibility finding, like the fact that Plaintiff was 21 assessed with a GAF of 40. 22 critical facts that would have further undermined his credibility 23 finding. 24 at Loma Linda Behavioral Medicine Center in January 2006, but 25 neglected to point out that she was there for a week because she had 26 tried to kill herself. (Joint The Court agrees with the Agency that there are facts For instance, the ALJ noted that Plaintiff was (AR 13.) But he also made findings that would (AR 14.) Worse yet, the ALJ left out For example, he summarily noted that Plaintiff was treated (AR 14.) 27 Further, and more importantly, the Court is not at liberty to 28 sift through this conflicting evidence culling out only the facts that 11 1 support the ALJ s finding and affirm it. Rather, it is limited to 2 reviewing the reasons stated by the ALJ in his decision and 3 determining whether they are sufficient to support his finding. 4 e.g., Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) ( [W]e 5 cannot affirm the decision of an agency on a ground that the agency 6 did not invoke in making its decision . . . . ). See, The same analysis holds true for the ALJ s rejection of 7 8 Plaintiff s mother s testimony. Though the threshold is much lower - 9 i.e., the ALJ need only set forth reasons that are germane to the 10 witness, see Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1053 11 (9th Cir. 2006) -the Court concludes that that threshold was not met 12 here. 13 In addressing the mother s testimony, the ALJ found: 14 The claimant s mother testified the claimant had severe back 15 pain and is very stiff in the mornings. 16 claimant as depressed over her medical condition. 17 given authorization due to her chronic pain for a teacher to 18 bring her school assignments to the home.3 19 She described the She was (AR 16.) 20 The ALJ rejected this testimony, finding: 21 At the hearing the [] mother s testimony was not credible to 22 the extent [she] alleged total disability. 23 . . . 24 25 26 27 28 3 In addition to her testimony at the administrative hearing, Plaintiff s mother submitted extensive written testimony as well. (AR 53-78). The ALJ completely ignored this testimony, which he is not allowed to do. See Schneider v. Comm r, Soc. Sec. Admin., 223 F.3d 968, 974-75 (9th Cir. 2000) (holding ALJ must consider lay witness evidence in the form of written submissions). 12 1 After considering the evidence of record, the undersigned 2 finds that the claimant s medically determinable impairments 3 could reasonably be expected to produce the alleged 4 symptoms, but that the statements concerning the intensity, 5 persistence and limiting effects of the claimant s symptoms 6 are not entirely credible. 7 8 9 (AR 16.) There appears to be no justification given for rejecting the mother s testimony. The Agency seems to concede this issue--though it 10 does not say so in the Joint Stipulation -and argues that the error 11 was harmless. 12 exactly what standard the Agency is championing for this harmless 13 error analysis, though. 14 of the substance of the testimony and the ALJ s finding regarding 15 Plaintiff and her mother s credibility . . . . 16 It also argues that the mother s testimony was merely cumulative of 17 Plaintiff s testimony, which the Agency believes was rightfully 18 rejected, so that the mother s testimony was properly ignored. 19 Stip. at 17.) 20 (Joint Stip. at 16.) It is unclear to the Court It states that the error is harmless because (Joint Stip. at 16.) (Joint Neither of these standards is correct. Under the harmless error test for reviewing an ALJ s failure to 21 properly discuss lay witness testimony, the Court fully credits the 22 testimony and determines whether it can confidently conclude that no 23 reasonable ALJ accepting the testimony would have concluded that the 24 claimant was disabled. 25 the Court concludes that the error is not harmless. 26 testimony at the administrative hearing her testimony contained in Stout, 454 F.3d at 1056. 27 28 13 Applying this test, If the mother s 1 her written submissions to the Agency are fully credited, a reasonable 2 ALJ might well conclude that Plaintiff was disabled. 3 this issue, too, is remanded to the ALJ for further development. 4 For this reason, Plaintiff has requested that the Court reverse the ALJ s decision 5 and remand for an award of benefits. (Joint Stip. at 18). The Court 6 concludes that such an award is not warranted in this case because it 7 is not clear whether Plaintiff and her mother s testimony is to be 8 credited and, if so, to what extent. 9 F.3d 871, 876 (9th Cir. 2003) (holding that remand for reconsideration 10 of credibility determination may be appropriate); see also Vasquez v. 11 Astrue, 547 F.3d 1101, 1106-07 (9th Cir. 2008) (noting that credit- 12 as-true rule should not apply if there are outstanding issues to be 13 resolved before a proper disability determination can be made), 14 amended in other respects on denial of reh g en banc, 572 F.3d 586 15 (9th Cir. 2009). See Connett v. Barnhart, 340 For this reason, this request is denied. 16 17 IT IS SO ORDERED. 18 DATED: August 14 , 2009. 19 20 21 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\SHORT, S 190\Memo_Opinion.wpd 14
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