James McGaughey Sr. v. Michael J Astrue, No. 5:2008cv01706 - Document 25 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. This matter will be remanded to the Commissioner for further hearing consistent with this Memorandum Opinion. (rp)
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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 JAMES McGAUGHEY, SR., 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 08-01706-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. Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) properly 1 2 developed the record; 2. Whether 3 4 3. 9 properly determined that Plaintiff s Whether the ALJ properly considered Plaintiff s testimony; and 4. Whether the ALJ properly considered the mental and physical 7 8 ALJ condition meets or equals a Listing; 5 6 the demands of Plaintiff s past relevant work. (JS at 2-3.) This Memorandum Opinion will constitute the Court s findings of fact and conclusions of law. 10 concludes that for the 11 After reviewing the matter, the Court reasons set forth, the decision of the Commissioner must be reversed. 12 13 I 14 THE ALJ HAD A DUTY TO DEVELOP THE RECORD, BUT DID NOT ERR 15 IN HIS DETERMINATION THAT PLAINTIFF S CONDITION 16 DOES NOT MEET OR EQUAL A LISTING 17 Addressing Plaintiff s first two issues, he contends that the 18 absence in the original record of a January 31, 2006 consultative 19 examination ( CE ) by Dr. Taylor, a clinical psychologist, rendered 20 the ALJ unable to properly analyze Dr. Taylor s findings. 21 contends that the ALJ should have developed the record by obtaining 22 and addressing Dr. Taylor s CE report. Related to this is Plaintiff s 23 second issue, in which he argues that the ALJ failed to find that he 24 meets Listing 12.05 (mental retardation). (See 20 C.F.R. Part 404, 25 subpart P, Appendix I, section 1205C.) 26 As to the first issue, Dr. Taylor s CE report Plaintiff is in the 27 supplemental record at AR 164-168. 28 that the ALJ failed to review Dr. Taylor s report, and should have 2 Accepting Plaintiff s contention 1 obtained it, the Court notes that the ALJ did examine the following 2 psychiatric evaluations: 3 1. Dr. Kikani, on June 15, 2006 (AR 143-146); 4 2. Dr. Smith, on April 19, 2007 (AR 123-129). 5 6 Further, Dr. Kikani had reviewed Dr. Taylor s report, and 7 essentially concurred with his findings. (AR 146.) 8 other hand, found a lesser level of impairments (as will be discussed 9 below) than did Dr. Taylor. 10 Dr. Taylor in diagnosed early that methamphetamine dependence 12 intellectual functioning. (AR 168.) 13 Plaintiff s 14 instructions; 15 activities; and moderate impairment both in his ability to maintain 16 attention, concentration, persistence and pace, and in his ability to 17 interact with supervisors, coworkers, and the public. (AR 168.) 18 ALJ found only mild restrictions in Plaintiff s ability to maintain 19 attention, concentration, persistence and pace, and in his ability to 20 interact with supervisors, coworkers, and the public. (AR 14-15.)1 21 to Dr. Kikani s opinion, his concurrence with Dr. Taylor s opinion is, 22 again, reflected in his report (see AR at 146), and therefore, to the 23 extent that Dr. Kikani found moderate difficulties in Plaintiff s 24 ability to relate and interact with supervisors, coworkers and the 25 public, and with concentration on persistence, and pace, his opinion mild to marijuana had 11 ability remission, Plaintiff Dr. Smith, on the in and borderline He found mild impairment in understand, impairment abuse, remember adapting to or complete day-to-day job work The As 26 27 28 1 In this regard, the Commissioner is incorrect in his assertion that Dr. Taylor s opinion is consistent with the functional limitations found by the ALJ in his decision. (See JS at 5.) 3 1 2 is, to that extent, inconsistent with that of the ALJ. This leaves Dr. Smith s evaluation of April 19, 2007. Dr. Smith 3 found no impairment in Plaintiff s ability to understand, remember or 4 complete simple commands, and mild impairment in the other four areas. 5 (AR 129.) 6 Finally, the State Agency physician, who reviewed the medical 7 record, 8 Plaintiff has no impairment in his ability to understand, remember or 9 complete simple commands, and only mild impairments in the remaining 10 concluded that, consistent with Dr. Smith s findings, areas of mental functioning. (AR 105-106, 109-122.) 11 The issue, therefore, is whether the ALJ correctly assessed 12 Plaintiff s mental impairments according to applicable regulation. 13 The ALJ was tasked with evaluating three distinct opinions, each based 14 on independent testing, rendered by three different psychiatrists: 15 Drs. Kikani, Smith, and Taylor. 16 Smith s findings rather than Dr. Kikani s, and there is no evidence 17 that he ever reviewed Dr. Taylor s report. He obviously opted to adopt Dr. 18 The pertinent question, therefore, is whether the ALJ erred in 19 not developing the record so as to be able to examine Dr. Taylor s 20 report. 21 of Dr. Kikani s, and the apparent basis for this choice, as set forth 22 in the decision, is that Dr. Smith s April 2007 report is more current 23 than Dr. Kikani s 2006 psychological test. (See AR at 15.) 24 reasoning does not adequately support the ALJ s choice to reject the 25 conclusions 26 particularly in view of the fact that Dr. Kikani s report was prepared 27 based upon an examination that occurred less than ten months before 28 Dr. Smith s, and Dr. Taylor s report only predated the others by As it is, the ALJ chose to adopt Dr. Smith s findings in lieu of one examining physician 4 in favor of But, this another s, 1 approximately a year. The Court does not perceive any apparent 2 staleness in the reports and examinations of Drs. Taylor and Kikani 3 which would serve as a reasonable basis to simply reject their 4 findings 5 impairment is far from the same as a moderate impairment, and in the 6 latter case, having moderate limitations in various areas of mental 7 functioning may, as the Court will discuss, ultimately effect the 8 availability of jobs which a claimant can do. on significant issues of mental impairment. A mild 9 Where examining physicians render conflicting opinions, each 10 based upon independent medical examinations, the requirements are 11 clear. 12 Ninth Circuit discussed the manner in which the adjudicator must 13 address the opinions of examining physicians, and of non-examining 14 physicians: In Lester v. Chater, 81 F.3d 821, 829-830 (9th Cir. 1995), the 15 The opinion of an examining physician is, in turn, 16 entitled to greater weight than the opinion of a non- 17 examining physician. 18 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450 (9th Cir. 19 1984). 20 physician, 21 convincing reasons for rejecting the uncontradicted opinion 22 of an examining physician. 23 like the opinion of a treating doctor, the opinion of an 24 examining doctor, even if contradicted by another doctor, 25 can only be rejected for specific and legitimate reasons 26 that are supported by substantial evidence in the record. 27 Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). Pitzer v. Sullivan, 908 F.2d 502, 506 As is the case with the opinion of a treating the Commissioner must provide clear Pitzer, 908 F.2d at 506. 28 5 and And 1 Therefore, the issue is simply whether the ALJ provided specific 2 and legitimate reasons supported by the record for rejecting Dr. 3 Kikani s (and, therefore, Dr. Taylor s) conclusions that Plaintiff has 4 moderate limitations in certain areas of mental functioning. 5 Court 6 constitutes a specific and legitimate reason to reject slightly older 7 examinations and conclusions. The error would appear to be compounded 8 here because two qualified mental health professionals, Dr. Kikani and 9 Taylor, both observed moderate mental limitations in two areas of cannot accept that most recent examination The prevails 10 functioning that Dr. Smith did not observe. 11 itself necessitates a remand for reconsideration of these issues at a 12 new hearing.2 13 This error in and of As to Plaintiff s argument that the ALJ erred in not finding that 14 he meets a Listing, the Court does not find error. Plaintiff s 15 argument is that he has established that he meets or equals Listing 16 12.05C, which requires findings of a valid verbal, performance, or 17 full-scale IQ of 60 through 70 and a physical or other mental 18 impairment which imposes an additional and significant work-related 19 limitation of function. First, as the Commissioner notes, in order to 20 meet a Listing for Mental Retardation, Plaintiff must first establish 21 a deficit in his adaptive functioning initially manifested before age 22 22. 23 produced. 24 a physical or other mental impairment which imposes additional and 25 significant work-related limitations, as required by the second prong There is no evidence in the record that this evidence has been More importantly, there is no evidence that Plaintiff has 26 2 27 28 These factors relate to assessment of the severity of the mental impairment, and are distinct from determination of residual functional capacity at Step Four. The former is what an individual cannot do, while the latter is what he is capable of doing. 6 1 of Listing 12.05C. Plaintiff s argument that the existence of a mood 2 disorder satisfies this requirement is erroneous, because the fact 3 that a claimant has a severe impairment does not equate to a Listing 4 level or equivalent impairment. See Nieves v. Secretary of Health and 5 Human Services, 775 F.2d 12, 14 (1st Cir. 1985). 6 7 II 8 THE ALJ S CREDIBILITY ASSESSMENT IS BASED ON INSUFFICIENT REASONS 9 In his decision, the ALJ depreciated Plaintiff s credibility as 10 to his subjective symptoms, finding that they are not credible to the 11 extent they are inconsistent with the residual functional capacity 12 assessment for the reasons explained below. (AR 16.) 13 language of the decision, it is difficult to find many reasons to 14 support 15 legitimate reasons, including the following: 16 1. this conclusion. Plaintiff does The not Commissioner have a finds history of Looking to the a number of psychological 17 treatment, counseling, or medication commensurate with his 18 alleged disabling psychological symptoms. (JS at 19, citing 19 AR 16.) 20 2. While Plaintiff alleged suicidal ideation at the hearing, 21 the ALJ noted that there is no documentation in the medical 22 evidence to support the allegation. (JS at 19, citing AR 36, 23 38-39.) 24 3. While Plaintiff alleged suicidal ideation at the hearing, he 25 told each of the three consultative examiners, Drs. Taylor, 26 Smith and Kikani that he did not have such thoughts. (JS 19, 27 citing AR 124, 143, 165.) 28 4. While Plaintiff stated at the hearing that he could not read 7 1 or write, the consultative examiner noted that he filled out 2 a 3 examination. (JS 19, citing AR at 164.) 4 5. four-page questionnaire at his January 31, 2006 Plaintiff s aggravating factor of a history of drug and 5 alcohol 6 testimony. 7 6. abuse appears to be in remission by his own Plaintiff told all three consultative examiners that he is 8 capable of performing normal activities of daily living. (JS 9 at 20.) 10 11 The applicable law regarding credibility assessment is based both 12 on regulation and statute. Subjective complaints of pain or other 13 symptomology in excess of what an impairment would normally be 14 expected to produce are subject to the credibility assessment of an 15 ALJ. 16 ALJ s assessment of pain severity and claimant credibility is entitled 17 to great weight. 18 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 19 determining 20 subjective complaints based solely on a lack of objective medical 21 evidence to fully corroborate the alleged severity. 22 Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); see also, Tonapetyan v. 23 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 24 claimant s subjective complaints are not credible, an ALJ must 25 specifically make findings that support this conclusion, Bunnell, 947 26 F.2d at 345, and provide clear and convincing reasons. Rollins, 261 27 F.3d at 857; see also Varney v. Secretary of Health & Human Services, 28 846 F.2d 581, 584 (9th Cir. 1988) (requiring the ALJ to put forward Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001). An Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. credibility, the ALJ 8 may not reject a When claimant s Bunnell v. In order to find that a 1 specific reasons 2 for discrediting a claimant s subjective complaints). 3 The absence of objective evidence to corroborate a claimant s 4 subjective complaints, however, does not by itself constitute a valid 5 reason for rejecting her testimony. Tonapetyan v. Halter, 242 F.3d at 6 1147. 7 subjective testimony of excess symptomology. 8 Apfel, 161 F.3d 599, 602 (9th Cir. 1998). 9 However, weak objective support can undermine a claimant s Implementing regulations prescribe See e.g., Tidwell v. factors which should be 10 considered in determining credibility as to self-reported pain and 11 other symptoms. 12 considered are specified to include a claimant s daily activities 13 ( ADL ); the location, duration, frequency and intensity of pain or 14 other symptoms; precipitating and aggravating factors; the type, 15 dosage, effectiveness and side effects of any medication taken; 16 treatment received; and measures taken to relieve pain. In 20 C.F.R. §404.1529(c)(3), the factors to be 17 The regulations also specify that consideration should be given 18 to inconsistencies or contradictions between a claimant s statements 19 and the objective evidence: 20 We will consider your statements about the intensity, 21 persistence, and limiting effects of your symptoms, and we 22 will evaluate your statements in relation to the objective 23 medical 24 conclusion as to whether you are disabled. We will consider 25 whether there are any inconsistencies in the evidence and 26 the extent to which there are any conflicts between your 27 statements and the rest of the evidence, including your 28 history, the signs and laboratory findings, and statements evidence and other 9 evidence, in reaching a 1 by your treating or nontreating source or other persons 2 about how your symptoms affect you. 3 (20 C.F.R. §404.1529(c)(4).) 4 5 While the Commissioner has carefully searched the record for 6 possible reasons which would support a decreased credibility finding, 7 the problem is that most of the reasons cited by the Commissioner in 8 the JS are not contained in the decision, and are therefore not 9 cognizable on review. See Connett v. Barnhart, 340 F.3d 871, 874 (9th 10 Cir. 2003). For example, there is nothing in the decision which 11 indicated that the ALJ relied upon the lack of a commensurate history 12 of psychological treatment, counseling or medication to corroborate 13 Plaintiff s complaints. 14 indicates 15 Plaintiff alleged he has been unable to work because of his mental 16 impairments and fluctuating mood disorder, he responded by stating 17 that, if the [Plaintiff] receives counseling, treatment, and/or 18 medication, he may very well become another productive member of 19 society. (AR 16.) 20 consulting mental health professionals found moderate impairments in 21 relevant areas of mental functioning, a matter which must be addressed 22 on remand. just the In fact, a fair reading of the decision opposite. While the ALJ acknowledged that Indeed, as the Court has noted, two of the three 23 With regard to Plaintiff s activities of daily living ( ADL ), 24 again, the Commissioner s argument that this issue was relevant to the 25 ALJ s credibility termination is simply not found in the decision. In 26 any event, the fact that Plaintiff may once have sold newspapers on 27 the corner, (AR 125) does not constitute a level of daily activities 28 sufficient to support a depreciation in credibility, even if it were 10 1 found in the decision, which it is not. 2 of suicidal ideation, which, contrary to the Commissioner s argument, 3 does not form part of the ALJ s credibility determination. 4 goes, again, for the Commissioner s argument that Plaintiff stated at 5 the hearing that he could not read or write, in contrast to Dr. 6 Taylor s notation that Plaintiff completed a four-page intake history 7 questionnaire form.3 8 The same goes for allegations The same Finally, the Court will not address Plaintiff fourth issue in any 9 detail. Plaintiff asserts that the ALJ did not properly consider the 10 mental 11 Plaintiff s mental RFC must be reevaluated on remand, it will be 12 necessary, after that determination is made, to both evaluate the 13 mental 14 according 15 Plaintiff s RFC enables him to perform this work. 16 // and and physical physical to proper demands demands of his of standards, past relevant Plaintiff s and to past then work. Since relevant determine work whether 17 18 3 19 20 21 22 23 24 25 26 27 28 This part of Dr. Taylor s report does not seem sufficient, in any event, to contradict Plaintiff s claims that he could not read or write. It is seemingly undisputed that Plaintiff has a full scale IQ of 65, and reads at a third grade level, spells at a second grade level, and does arithmetic at a third grade level. (AR 128.) Plaintiff s own evaluation that he does not know how to read or write may, in fact, be simply his own psychological self-perception that equates a third grade level of reading with an inability to read. Moreover, it is difficult to conceive that a person with such limited abilities in reading and writing could, by himself, fill out a fourpage medical questionnaire prior to a psychiatric consultative examination. The Court need not further discuss this matter, because it is clear that the credibility evaluation is insufficient and incomplete. The Court declines to order that Plaintiff be accorded full credibility for his symptoms at the rehearing, in view of the incompleteness of the analysis. The ALJ will make this determination de novo. 11 1 For the foregoing reasons, this matter will be remanded to the 2 Commissioner for further hearing consistent with this Memorandum 3 Opinion. 4 IT IS SO ORDERED. 5 6 DATED: September 30, 2009 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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