Loren Webster v. Michael J. Astrue, No. 5:2008cv01833 - Document 14 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. (rp)
Download PDF
<![CDATA[
1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 LOREN WEBSTER, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 08-01833-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 s ( ALJ ) finding at 1 step two that Plaintiff suffers no legally severe mental 2 impairment is based on a proper evaluation of the opinions 3 of the treating internist and of consultative and non- 4 examining psychiatrists; 5 2. Whether the ALJ s finding that Plaintiff can perform a 6 slightly reduced range of exertionally light work is based 7 on a proper consideration of the fatigue flowing from his 8 hepatitis C; and 9 3. Whether the rejection of the credibility of Plaintiff s 10 fatigue is based on substantial evidence. 11 12 This Memorandum Opinion will constitute the Court s findings of 13 fact and conclusions of law. 14 concludes 15 Commissioner must be reversed. that for the After reviewing the matter, the Court reasons set forth, the decision of the 16 17 I 18 THE ALJ S DETERMINATION THAT PLAINTIFF 19 HAS NO SEVERE MENTAL IMPAIRMENT IS UNSUPPORTABLE 20 In the ALJ s decision, following a hearing necessitated by a 21 remand from the 22 Plaintiff 23 Plaintiff challenges that finding, and the Court agrees. does Appeal not Council have a (AR severe 43-45), mental the ALJ found that (AR 24.) impairment. 24 25 A. Summary of Evidence Pertaining to Mental Health. 26 Plaintiff s treating physician, Dr. Chen, is a doctor of 27 osteopathy, who has seen Plaintiff since November 2005. (AR 352-422.) 28 In his initial evaluation on November 1, 2005, Plaintiff complained of 2 1 depression, loss of usual interests, loss of concentration, and a 2 recent onset of suicidal ideation. (AR 419.) 3 psychotropic medications Klonopin, Lexapro, and Seroquel. (AR 419-22.) 4 Examination of the longitudinal record indicates that, due to side 5 effects, Plaintiff s psychotropic medications were often adjusted by 6 Dr. Chen. 7 stopped taking Lexapro due to dizziness, headaches, and irritability. 8 (AR 412-13.) 9 anxiety, and he continued prescriptions for Klonopin and Seroquel. (AR Dr. Chen prescribed the For example, in December 2005, Plaintiff indicated he had Dr. Chen diagnosed Plaintiff with bipolar disorder and 10 412-13.) Plaintiff refused Dr. Chen s referral for psychiatric 11 treatment. 12 prescribing Depakote. (AR 392.) 13 side effects, and it was discontinued. (AR 388.) 14 Plaintiff complained of anxiety, depression and regular mood swings. 15 (AR 375.) Plaintiff tried to avoid taking the Depakote until he felt 16 he really needed it. (Id.) That drug was refilled, and Plaintiff also 17 received a prescription for Lorazepam, which was refilled in late 18 2006, and early 2007. 19 Depakote (AR 372-73, 366-67, 365), Plaintiff reported feeling anxious, 20 was again diagnosed with anxiety and bipolar disorder, and his 21 medications were refilled in March 2007. (AR 353-54.) Dr. Chen refilled the Klonopin prescription, and began The latter drug led to complaints of In August 2006, Despite reporting that he felt better on 22 In January 2007, Dr. Chen completed a Multiple Impairments 23 Questionnaire, finding that due to his bipolar disorder, Plaintiff s 24 physical symptoms are exacerbated, that he remains anxious and has 25 sleep difficulties, despite the Depakote. 26 that Plaintiff s symptoms would likely increase if he were placed in 27 a competitive work environment; that he is incapable of doing a full- 28 time competitive job; that emotional 3 Dr. Chen further opined factors contribute to the 1 severity of his symptoms and functional limitations; and that he is 2 only capable of tolerating a low-stress work environment. (AR 346-47.) 3 He would likely be absent from work more than three times a month and 4 psychological limitations would affect his ability to work at a 5 regular job on a sustained basis. (AR 348.) 6 On August 29, 2005, Plaintiff received a complete psychiatric 7 evaluation ( CE ) at the request of the Department of Social Security, 8 from Dr. Roux (AR 302-312.) 9 disorder, recurrent, severe, without psychotic features, on Axis I, 10 without ruling out bipolar II disorder. (AR 309.) As a prognosis, Dr. 11 Roux reported the following: 12 Dr. Roux diagnosed major depressive It is possible that with adequate and appropriate 13 treatment 14 medication adjustments, possibly augmented by counseling), 15 [Plaintiff] could see at least some reduction in his various 16 mood symptoms. 17 severity, 18 compounded by his physical pain and other stressors - his 19 overall 20 Therefore, it might be in his best interest to seek mental 21 health consultation. 22 (which and could feasibly include psychotropic However, given the overall chronicity, multiplicity prognosis of currently his only symptoms appears to - further be fair. (AR 310-11.) 23 24 On September 9, 2005, Board-certified psychiatrist Dr. Hurwitz, 25 a non-examining review psychiatrist, completed a mental residual 26 functional 27 Plaintiff s ability to carry out detailed instructions; to maintain 28 attention and concentration for extended periods; to make simple work- capacity assessment, finding 4 moderate limitations in 1 related decisions; to interact appropriately with the general public; 2 and to set realistic goals or make plans independently of others. (AR 3 316-17.) 4 In April, 2008, Plaintiff received a psychiatric CE from Dr. 5 Parikh at the request of the Department of Social Services. (AR 440- 6 446.) 7 examination, found that, on Axis I, Plaintiff has a mood disorder, not 8 otherwise specified, and bipolar disorder by history. (AR 445.) 9 Nevertheless, Dr. Parikh found that from a psychiatric standpoint, 10 Dr. Parikh did not review any medical records, but after an Plaintiff has no functional impairments. (AR 445-46.) 11 12 B. Summary of the ALJ s Decision. 13 Although acknowledging that Plaintiff takes psychotropic 14 medication prescribed by Dr. Chen, the ALJ determined there is no 15 longitudinal history of mental health treatment despite the presence 16 of County clinics in the area of Plaintiff s residence. (AR 24.) 17 The ALJ did note the psychiatric CE s of Dr. Roux, and Dr. 18 Parikh. (AR 24.) 19 review psychiatrist Dr. Hurwitz, but found that the conclusion that 20 Plaintiff has moderate limitations in social functioning is not 21 supported by the objective evidence. 22 employed, Plaintiff got along well with superiors, coworkers and 23 customers, 24 neighbors and has close friends. (AR 24, citing AR 442.) 25 to this apparent assessment of Plaintiff s activities of daily living, 26 and his interpersonal relationships, the Court notes that the ALJ 27 relied upon Plaintiff s own self-reporting during his CE with Dr. 28 Parikh. (AR 442.) and In addition, the ALJ took note of State Agency that he now gets The ALJ ascertained that when along with family members and With regard Further, while noting that Plaintiff s girlfriend 5 1 asserted that he gets along just fine with authority figures, and 2 that his girlfriend assessed a moderate limitation in maintaining 3 concentration and persistence and pace, the ALJ determined that while 4 this may have been true at the time the State Agency and psychiatric 5 consultative examiner rendered their opinions back in 2005 and 2006 6 ... this is certainly not the case now. (AR 24-25.) 7 relied upon the 2008 psychiatric CE of Dr. Parikh in discounting these 8 lay observations. 9 The ALJ completely discounted the Thus, the ALJ Multiple Impairments 10 Questionnaire completed by Dr. Chen, Plaintiff s treating physician, 11 who 12 occasionally and treating him most minimally. (AR 27.) 13 that Plaintiff only saw Dr. Chen every two months led the ALJ to 14 conclude that Dr. Chen must not have thought the [Plaintiff s] 15 conditions were that serious since he did not need to see the 16 [Plaintiff] for two months. 17 asserted limitations are unsupported by the doctor s own record, by 18 the minimal course of current treatment, and the form [Multiple 19 Impairments 20 assertions. The comments regarding the [Plaintiff s] mental condition 21 are outside the competence of this osteopath and are certainly 22 rebutted by the conclusions of the State Agency board-certified 23 psychiatrist (exhibit references omitted). (AR 27.) was characterized by Questionnaire] the ALJ as having seen Plaintiff The fact Further, the ALJ determined that, the simply parrots the [Plaintiff s] 24 25 C. Analysis. 26 For numerous reasons to be discussed, the ALJ s conclusions as to 27 Plaintiff s mental impairments are completely unsupportable. 28 the credibility of Dr. Chen may not be depreciated because he is an 6 First, 1 osteopath rather than a psychiatrist. A similar conclusion by an ALJ 2 was rejected by the Ninth Circuit in Sprague v. Bowen 812 F.2d 1226, 3 1231 (9th Cir. 1987). There, the claimant s family doctor, Dr. Gehlen, 4 provided an opinion as to claimant s mental state and its impact on 5 her ability to work. The Ninth Circuit rejected the conclusion of the 6 Magistrate Judge that it was appropriate, on the administrative level, 7 to reject Dr. Gehlen s opinion as to the claimant s mental health 8 because it was not offered by a board-certified psychiatrist. 9 Opinion notes, there is no such requirement in the regulations, and, 10 under general principles of evidence law Dr. Gehlen is qualified to 11 give a medical opinion as to [claimant s] mental state as it relates 12 to 13 psychiatrist. (Id. at 1232, citations omitted.) Further, the Opinion 14 observed that Dr. Gehlen was qualified in his state to practice and 15 render psychiatric services, and further noted that primary care 16 physicians identify and treat the majority of psychiatric disorders. 17 (Id.) 18 case, the Circuit found that by prescribing psychotherapeutic drugs, 19 Dr. Gehlen was in fact practicing psychiatry. 20 considered 21 §404.1513(a)(1).) 22 primary treating physician, and over a period of several years, 23 prescribed psychotropic medications, adjusting them based on various 24 negative side effects of some of the medications. Plainly, Dr. Chen s 25 treatment did constitute psychiatric treatment, and thus, the ALJ s 26 observation of a lack of a longitudinal history of mental health 27 treatment is simply factually incorrect. 28 her physical disability even though Dr. Gehlen is As the not a With regard to Dr. Gehlen s treatment of the claimant in that medically acceptable. (Id., Thus, his evidence was citing 20 C.F.R. Similarly, in this case, Dr. Chen was Plaintiff s The ALJ appears to have accepted the mental health limitations 7 1 assessed by Dr. Roux in her 2005 psychiatric CE, and those of Dr. 2 Hurwitz. 3 Plaintiff s psychiatric condition, as reflected in Dr. Parikh s CE, 4 and therefore found no severe mental health impairment. 5 the ALJ discounted the statements of Plaintiff s girlfriend, who 6 completed a third party questionnaire (AR 110-118; 129-136), finding 7 that the 2008 psychiatric CE more adequately and correctly evaluated 8 Plaintiff s mental state. In the Commissioner s portion of the JS, he 9 echoes (AR the 24-25.) ALJ s The analytic ALJ cited framework, implicit arguing improvement that in Similarly, if, indeed, 10 Plaintiff had a mental impairment, it had improved to such an extent 11 that by the time he received his 2008 psychiatric CE from Dr. Parikh, 12 it no longer existed. To support this, the Commissioner cites various 13 parts of Plaintiff s treatment records from Dr. Chen. (See JS at 15, 14 citing 15 examination of these records does not support the Commissioner s 16 conclusion 17 Plaintiff s mental health condition. 18 fathom the Commissioner s contention that Dr. Chen s notes do not 19 substantiate any mental functional limitations. 20 true if the Multiple Impairment Questionnaire completed by Dr. Chen is 21 ignored. 22 set forth in the decision to, effectively, throw out Dr. Chen s, Dr. 23 Roux s, and Dr. Hurwitz s findings. 24 Plaintiff only saw Dr. Chen occasionally, or that Dr. Chen provided 25 Plaintiff with minimal mental health care. 26 that Dr. Chen failed to set forth specific functional limitations in 27 Plaintiff s 28 reasonable basis to reject Dr. Roux s conclusions based upon an AR at 412-413, that they 419, 388-389, document a 377, 372.) longitudinal The Court s improvement in Moreover, the Court cannot This would only be The Court finds no stated specific and legitimate reasons mental functioning. The Court does not agree that The 8 The Court does not agree Court does not find any 1 asserted consistent improvement in Plaintiff s mental functioning, 2 which is not factually supported by the record. 3 find 4 assertions, and, finally, with regard to Dr. Parikh s report, the 5 Court is concerned that Dr. Parikh reviewed no medical or mental 6 health records, and apparently relied, as did the ALJ, on Plaintiff s 7 own assessment of his mental health functioning, such as his ability 8 to get along with people, focus, follow instructions, and the like. 9 that Dr. Chen s findings simply The Court does not parrot Plaintiff s own In sum, the ALJ s decision reflects not a recitation of specific 10 and legitimate reasons to reject mental health assessments by 11 qualified professionals, rendered over a period of several years, but 12 rather, an apparent decision to accept the contradictory findings of 13 a one-time examiner from a 2008 examination, and then read the record 14 in a manner which would support rejection of other opinions. 15 form of analysis completely fails to comply with established law. 16 Even the ALJ s apparent negative view of Plaintiff s failure or 17 refusal to seek further mental health evaluation and treatment, as 18 poorly reflecting upon the actual existence of a mental impairment, 19 flies in the face of Ninth Circuit law which rejects reliance upon a 20 mentally impaired person s refusal of treatment to find lack of an 21 impairment. 22 Administration, 166 F.3d 1294, 1299-1300 (9th Cir. 1999). 23 perceives a lack of impartiality in this decision, necessitating, on 24 remand, that the matter be assigned to another ALJ.1 This See Regennitter v. Commissioner of Social Security The Court 25 26 27 28 1 The Court is particularly perplexed by the Commissioner s argument that any error was harmless, because, in his hypothetical to the vocational expert ( VE ), the ALJ incorporated performance of jobs that required simple, routine, repetitive, non-public types of tasks. (continued...) 9 1 II 2 THE EFFECT OF FATIGUE BASED ON PLAINTIFF S HEPATITIS C 3 CONDITION MUST RE REEVALUATED ON REMAND 4 On July 10, 2008, Plaintiff received a Qualified Medical 5 Evaluation, obtained at his own expense, from Dr. Steinberg. (AR 480- 6 501.) 7 fatigue is secondary to his condition of Hepatitis C. (AR 495.) 8 Consequently, 9 frequently interfere with Plaintiff s ability to maintain attention 10 and concentration, and as a result, he would likely miss work more 11 than three times a month. (AR 499-500.) 12 fatigue-based 13 unsupported or actively rebutted by his own review of symptoms and 14 actual physical examination. (AR 28.) Another ground for rejection 15 was other 16 specifically to an internal medicine CE on March 31, 2008 by Dr. Lin. 17 (AR 425-430.) Dr. Steinberg concluded that Plaintiff s primary symptom of the Dr. Steinberg limitations asserted found as inconsistency that grossly with these symptoms would The ALJ rejected these exaggerated and opinions, either referring 18 The Court will not devote substantial attention to the issue of 19 Plaintiff s fatigue, either as medically reported by Dr. Steinberg, or 20 Plaintiff himself, because these issues must be evaluated de novo on 21 remand. 22 of Dr. Steinberg s opinion because, for example, upper extremity 23 limitations which he assessed were incredible, does not comport with 24 the record. The Court will observe, however, that the ALJ s depreciation Indeed, it appears that Dr. Steinberg only assessed 25 26 27 28 1 (...continued) (AR 29-30.) If, as the ALJ determined, Plaintiff has no severe mental impairment, why, then, would he not only incorporate mental functional limitations in his hypothetical to the VE, but then rely upon that set of limitations in his decision? 10 1 minimal limitations with regard to the upper extremities, such as 2 grasping, turning, and twisting objects, using fingers and hands for 3 fine manipulations, and using his arms for reaching. (AR 497-498.) 4 Moreover, it does not appear that Dr. Lin specifically addressed the 5 issue of fatigue related to the Hepatitis C condition. 6 of the ALJ s disagreement with Dr. Steinberg s findings pertains to 7 issues that concern not Hepatitis C, but other conditions, such as 8 liver dysfunction. 9 remand, in light of the existing evidence, and any additional evidence 10 11 12 13 Further, much Consequently, these issues must be examined on which is presented. For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 14 15 16 DATED: August 11, 2009 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 11
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
