Kristin Rosol v. Michael J Astrue, No. 5:2008cv01692 - Document 16 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg: IT IS HEREBY ORDERED that this matter is remanded for proceedings consistent with this Opinion. (ca)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KRISTIN ROSOL, 12 Plaintiff, 13 v. NO. EDCV 08-1692 AGR 17 ) ) ) ) ) ) ) ) ) ) ) ) 18 Kristin Rosol filed this action on November 21, 2008. Pursuant to 28 19 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge 20 Rosenberg on November 26, 2008 and January 23, 2009. (Dkt. Nos. 6-7.) On 21 June 15, 2009, the parties filed a Joint Stipulation ( JS ) that addressed the 22 disputed issues. (Dkt. No. 14.) The Court has taken the matter under 23 submission without oral argument. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 MEMORANDUM OPINION AND ORDER Having reviewed the entire file, the Court remands this matter to the 24 25 Commissioner for proceedings consistent with this Opinion. 26 /// 27 /// 28 /// 1 I. 2 PROCEDURAL BACKGROUND 3 On February 2, 2006, Rosol filed an application for disability insurance 4 benefits. Administrative Record ( AR ) 10. The application was denied initially 5 and upon reconsideration. AR 47-48. An Administrative Law Judge ( ALJ ) 6 conducted a hearing on April 24, 2008, at which Rosol, a medical expert ( ME ), 7 and a vocational expert ( VE ) testified. AR 28-46. On June 26, 2008, the ALJ 8 issued a decision denying benefits. AR 7-18. On September 26, 2008, the 9 Appeals Council denied Rosol s request for review. AR 1-4. 10 This lawsuit followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s 14 decision to deny benefits. The decision will be disturbed only if it is not supported 15 by substantial evidence, or if it is based upon the application of improper legal 16 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 17 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 Substantial evidence means more than a mere scintilla but less than a 19 preponderance it is such relevant evidence that a reasonable mind might 20 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 21 determining whether substantial evidence exists to support the Commissioner s 22 decision, the Court examines the administrative record as a whole, considering 23 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 24 evidence is susceptible to more than one rational interpretation, the Court must 25 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 26 /// 27 /// 28 /// 2 1 III. 2 DISCUSSION 3 A. 4 A person qualifies as disabled, and thereby eligible for such benefits, only 5 if his physical or mental impairment or impairments are of such severity that he is 6 not only unable to do his previous work but cannot, considering his age, 7 education, and work experience, engage in any other kind of substantial gainful 8 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 9 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). Disability 10 B. 11 The ALJ found that Rosol meets the insured status requirements through 12 13 The ALJ s Findings December 31, 2003. AR 12. Rosol has the following severe impairment: bipolar disorder. Id. Rosol 14 has the residual functional capacity ( RFC ) to perform a full range of work at all 15 exertional levels but with the following nonexertional limitations: moderately 16 complex tasks with up to three to four steps of instructions; and occasional non- 17 intense contact with others. AR 13. Rosol is unable to perform past relevant 18 work. AR 16. However, there are jobs that exist in significant numbers in the 19 national economy that the claimant can perform. AR 17. 20 C. 21 The ALJ accepted treating psychiatrist Dr. John s initial evaluation dated The Medical Evidence 22 November 3, 2004, which indicated impaired concentration. AR 15, 479-83. At 23 the initial evaluation, Dr. John found Rosol s psychomotor behavior to be within 24 normal limits, with a cooperative attitude, appropriate speech and mildly elevated 25 mood. AR 480-81. Dr. John estimated Rosol s intellectual functioning to be 26 average, her judgment to be within normal limits, and her concentration to be 27 impaired (as distinguished from adequate or severely impaired). AR 481-82. 28 3 1 However, the ALJ did not give great weight to Dr. John s Mental 2 Impairment Questionnaire dated May 9, 2007. AR 15, 445-50. Dr. John checked 3 the box for unable to meet competitive standards as to Rosol s ability to 4 maintain regular attendance and be punctual within customary tolerances, sustain 5 an ordinary routine without special supervision, complete a normal workday and 6 workweek without psychological interruptions, perform at a consistent pace 7 without unreasonable rest periods, deal with normal work stress, and deal with 8 stress of semiskilled or skilled work. AR 447-48. Although the form requested an 9 explanation of those limitations, Dr. John provided none. Id. Dr. John assessed 10 moderate limitations on activities of daily living, social functioning, and 11 deficiencies of concentration, persistence or pace, but found three episodes of 12 decompensation within a 12-month period, each of which lasted at least two 13 weeks. AR 449. Although the form asked for dates of the episodes, Dr. John 14 provided none. Id. Dr. John estimated that Rosol would be absent from work 15 more than four days per month. Id. 16 An opinion of a treating physician is given more weight than the opinion of 17 non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 18 Where the treating doctor s opinion is not contradicted by another doctor, it may 19 be rejected only for clear and convincing reasons supported by substantial 20 evidence in the record. Id. at 632 (citation omitted). When, as here, a treating 21 physician s opinion is contradicted by another doctor, the ALJ may not reject this 22 opinion without providing specific and legitimate reasons supported by 23 substantial evidence in the record. This can be done by setting out a detailed 24 and thorough summary of the facts and conflicting clinical evidence, stating his 25 interpretation thereof, and making findings. Id. at 632 (citations omitted). 26 Rosol appears to argue in her reply that Dr. John s opinion is 27 uncontradicted. JS 6. The medical expert expressed an opinion as to Rosol s 28 abilities that contradicted Dr. John. A non-examining physician s opinion 4 1 is sufficient to establish a conflict among medical opinions even if it could not 2 constitute substantial evidence for rejecting a treating physician s opinion. See 3 Widmark v. Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 2005). 4 The ALJ discounted Dr. John s evaluation based on the medical expert s 5 testimony and because the evaluation was a check-the-box report whose 6 limitations were inconsistent with Dr. John s treatment records and Rosol s good 7 response to medication when compliant and not binge drinking.1 AR 15-16. 8 The ALJ asked for and considered the opinion of a medical expert, Dr. 9 Glasmire. AR 16, 20 C.F.R. § 404.1527(f)(iii). It is undisputed that the ME did 10 not have Dr. John s treatment records because they were submitted after the 11 hearing. AR 16, 36, 452. The ME felt he had insufficient evidence really to 12 comment on episodes of decompensation because there were no treatment 13 records and Dr. John s May 9, 2007 evaluation provided no dates or evidence on 14 that issue. AR 39-40. The ME also stated that there was insufficient evidence to 15 determine whether Rosol met the C criteria for the same reason. AR 40. The 16 ME s limitations were [b]ased on the records I ve reviewed, which did not 17 include treatment records. Id. 18 The ALJ stated that he gave great weight to the ME s opinion. AR 16. A 19 non-examining physician s opinion constitutes substantial evidence when it is 20 supported by other evidence in the record and consistent with it. Andrews v. 21 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). However, a non-examining 22 physician s opinion cannot by itself constitute substantial evidence. Widmark, 23 454 F.3d at 1066 n.2. The ME stated that his opinion was based only on the 24 records he reviewed and stated repeatedly that he found insufficient evidence 25 based on the absence of treating records. AR 36, 39-43. Having relied upon the 26 27 28 1 The ALJ accepted Dr. John s Global Assessment of Functioning (GAF) score of 60, which indicates moderate symptoms defined as more than a slight limitation in this area but is still able to function satisfactorily. AR 15 n.1. The ALJ found that moderate symptoms were not inconsistent with his findings. Id. 5 1 ME s opinion, the ALJ is not free to ignore the ME s equivocal testimony that 2 there was insufficient evidence without treatment records to review. Cf. 3 Tonapetyan v. Halter, 242 F.3d 1144, 1150-51 (9th Cir. 2001) (ALJ erred in failing 4 to develop record where ME s testimony, on which ALJ relied, indicated need for 5 a more complete report from the doctor).2 The ME s testimony does not 6 constitute substantial evidence to discount Dr. John s opinion. 7 Rosol submitted the treatment records after the hearing. AR 16, 452. An 8 ALJ may reject a treating physician s opinion that is unsupported or contradicted 9 by treatment records. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 10 2005); Batson v. Comm r of the SSA, 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ 11 may reject conclusory and unsupported check list report); Thomas v. Barnhart, 12 278 F.3d 947, 957 (9th Cir. 2002); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 13 1996) (ALJ may reject check-off report that did not explain bases of conclusions). 14 As discussed above, the report itself did not provide explanations for Dr. John s 15 limitations. The ALJ interpreted Dr. John s treatment records as reflecting good 16 response to medications when she is compliant, except during the time period 17 surrounding Rosol s father s death when Rosol drank heavily. Even then, Rosol s 18 condition during that time period was brought on by a situational event and 19 resolved. AR 15. 20 The ALJ s interpretation of the treatment records as reflecting good 21 response to medications except during binge drinking does not appear to be 22 supported by substantial evidence. See Holohan v. Massanari, 246 F.3d 1195, 23 1205 (9th Cir. 2001) (insufficient evidence to support ALJ s finding of conflict 24 between opinion and treatment notes). During the period November 2004 until 25 June 2005 (when Rosol s father died), Rosol is definitely doing better with the 26 27 28 2 The ALJ did not fail to develop the record in this case. The treatment records were requested on more than one occasion, and arrived after the hearing. AR 36, 452. 6 1 depression and is able to get up and do things around the home. AR 474; AR 2 472-78. However, there continue to be reports of mood swings, although without 3 rage episodes or excessive shopping. AR 473, 475-76. In June 2005, Rosol 4 went manic for 2 weeks and spent $1000" and then went depressed for 3 days. 5 AR 472. In August 2005, Rosol reported some mood swings with irritability and 6 mild depression. AR 471. In October 2005, Rosol reported a hypomanic 7 episode for 2 weeks and then crashed. AR 470. In the period November 2005 8 through March 2006, Rosol reports being depressed over her mother s lawsuit 9 and the breakdown of that relationship. AR 466-69. During May-September 10 2006, Rosol had panic and depression, mixed with racing thoughts and insomnia 11 associated with having to move out of her home. AR 463-65. In November 2006, 12 Rosol reports definitely doing better with her mood with her switch to Zoloft. AR 13 462. However, in January through March 2007, Rosol again has trouble with her 14 mood and depression. Dr. John notes that Pt to be hospitalised if not doing 15 well. AR 460-61. In May 2007, Rosol again reports doing reasonably well on 16 the combination of meds she is on right now with some break through anxiety and 17 agitation, and states that she is doing things around the home. AR 459. In July 18 2007, Rosol reports that she went into hypomania, then drank heavily due to the 19 anniversary of her father s death and went into depression. AR 458. There is no 20 improvement through February 2008, when none of the medications seem to 21 work and she is still experiencing mood swings throughout the day. AR 454-57. 22 On remand, the ALJ should consult a medical expert and provide him or 23 her with Dr. John s treatment notes. In addition, the court notes that the ALJ 24 found that the date last insured was December 31, 2003. [T]o obtain disability 25 benefits, [a claimant] must demonstrate he was disabled prior to his last insured 26 date. Morgan v. Sullivan, 945 F.2d 1079, 1080 (9th Cir. 1991). The claimant 27 bears the burden of proof and must prove that he was either permanently 28 disabled or subject to a condition which became so severe as to disable [him] 7 1 prior to the date upon which [his] disability insured status expired. Armstrong v. 2 Commissioner of the SSA, 160 F.3d 587, 589 (9th Cir. 1998) (citation omitted). If 3 the medical evidence is not definite concerning the onset date and medical 4 inferences need to be made, SSR 83-20 requires the administrative law judge to 5 call upon the services of a medical advisor and to obtain all evidence which is 6 available to make the determination. DeLorme v. Sullivan, 924 F.2d 841, 848 7 (9th Cir. 1991). The onset date must be supported by the evidence. See Social 8 Security Ruling ( SSR ) 83-20.3 9 10 11 12 D. Step Two Analysis Rosol appears to argue that the ALJ erred in failing to find her migraines constitute a severe impairment. JS 6-7. At Step Two of the sequential analysis, the claimant bears the burden of 13 demonstrating a severe, medically determinable impairment that meets the 14 duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii); Bowen v. Yuckert, 482 U.S. 15 137, 146 n.5, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). To satisfy the duration 16 requirement, the severe impairment must have lasted or be expected to last for a 17 continuous period of not less than 12 months. Id. at 140. 18 Your impairment must result from anatomical, physiological, 19 or psychological abnormalities which can be shown by 20 medically acceptable clinical and laboratory diagnostic 21 techniques. A physical or mental impairment must be 22 established by medical evidence consisting of signs, 23 symptoms, and laboratory findings, not only by your 24 statement of symptoms. 25 26 27 28 3 Social Security rulings do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989) (footnotes omitted). 8 1 20 C.F.R. § 404.1508; 20 C.F.R. § 416.908. [T]he impairment must be one that 2 significantly limits your physical or mental ability to do basic work activities. 4 3 Yuckert, 482 U.S. at 154 n.11 (quoting 20 C.F.R. § 404.1520(c)); Smolen, 80 4 F.3d at 1290 ( [A]n impairment is not severe if it does not significantly limit [the 5 claimant s] physical ability to do basic work activities. ) (citation and internal 6 quotation marks omitted). 7 An impairment or combination of impairments may be found not severe 8 only if the evidence establishes a slight abnormality that has no more than a 9 minimal effect on an individual s ability to work. Webb v. Barnhart, 433 F.3d 10 683, 686-87 (9th Cir. 2005) (emphasis in original, citation omitted). Step Two is 11 a de minimis screening device [used] to dispose of groundless claims and the 12 ALJ s finding must be clearly established by medical evidence. Id. at 687 13 (citations and quotation marks omitted). 14 Rosol does not identify medical records indicating a severe impairment of 15 migraines that lasted or is expected to last for a continuous period of not less 16 than 12 months. There is a reference to headaches in treatment notes during the 17 period November 2000 through March 2001. AR 244-55. There is no definitive 18 diagnosis of migraines. AR 254-55. A February 2001 notation states that Rosol s 19 headaches are virtually gone. AR 246. In March 2001, there is a referral to a 20 psychiatrist for evaluation of various types of migrainous disorders associated 21 with mood disorders. AR 244. The headaches are not disabling. Id. The next 22 episode appears to have occurred in February 2003. AR 267. While the 23 physician agreed that visual paroxysms are consistent with migraine, he stated 24 25 26 27 28 4 The ability to do basic work activities includes physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling, capacities for seeing, hearing, and speaking, understanding, carrying out, and remembering simple instructions, use of judgment, responding appropriately to supervision, co-workers, and usual work situations, and dealing with changes in a routine work setting. Yuckert, 482 U.S. at 168 n.6 (internal quotations omitted); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). 9 1 that her symptoms were most consistent with a complex partial seizure. AR 2 268. In January 2005, there is a reference to Nexium being discontinued due to 3 headaches. AR 316. Rosol last complained of headache pressure in May 2006. 4 AR 334. The ALJ did not err. 5 E. 6 The ALJ may rely on testimony a vocational expert gives in response to a 7 hypothetical that describes all of the limitations that the ALJ found credible and 8 supported by substantial evidence in the record. Bayliss, 427 F.3d at 1217-18. 9 The ALJ is not required to include limitations that are not in his findings. Rollins 10 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Osenbrock v. Apfel, 240 F.3d 11 1157, 1165 (9th Cir. 2001). 12 Hypothetical to the Vocational Expert On remand, the ALJ is free to revisit the issue of his hypothetical to the 13 vocational expert if appropriate after further analysis of the treating physician s 14 records and Rosol s residual functional capacity. 15 IV. 16 ORDER 17 18 19 20 IT IS HEREBY ORDERED that this matter is remanded for proceedings consistent with this Opinion. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 21 22 23 DATED: September 25, 2009 ALICIA G. ROSENBERG United States Magistrate Judge 24 25 26 27 28 10

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