Saul Ibarra v. Michael J. Astrue, No. 5:2009cv00807 - Document 18 (C.D. Cal. 2010)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Saul Ibarra filed this action on May 1, 2009. Pursuant to 28 U.S.C. §636(c), the parties consented to proceed before Magistrate Judge Rosenberg on May 13 and 14, 2009. On Nov ember 30, 2009, the parties filed a Joint Stipulation that addresses the disputed issues. The Court has taken the matter under submission without oral argument. Having reviewed the entire file, the Court remands this matter to the Commissioner for proceedings consistent with this opinion. IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and the matter remanded. (See Order for details.) (mp)

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Saul Ibarra v. Michael J. Astrue Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 NO. EDCV 09-807 AGR 17 ) ) ) ) ) ) ) ) ) ) ) ) 18 Saul Ibarra filed this action on May 1, 2009. Pursuant to 28 U.S.C. § 19 636(c), the parties consented to proceed before Magistrate Judge Rosenberg on 20 May 13 and 14, 2009. (Dkt. Nos. 8-9.) On November 30, 2009, the parties filed a 21 Joint Stipulation ( JS ) that addresses the disputed issues. The Court has taken 22 the matter under submission without oral argument. SAUL IBARRA, 12 Plaintiff, 13 v. 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 23 24 Commissioner for proceedings consistent with this opinion. 25 /// 26 /// 27 /// 28 /// Dockets.Justia.com 1 I. 2 PROCEDURAL BACKGROUND 3 On February 14, 2008, Ibarra filed an application for Social Security 4 Disability Insurance ( SSDI ) benefits. Administrative Record ( AR ) 14. On 5 February 29, 2008, Ibarra filed an application for Supplemental Security Income 6 ( SSI ) benefits. Id. In both applications, Ibarra alleged disability beginning 7 September 1, 2007. Id. The applications were denied initially and upon 8 reconsideration. Id. An Administrative Law Judge ( ALJ ) conducted a hearing 9 on December 8, 2008, at which Ibarra, a medical expert ( ME ), and a vocational 10 expert ( VE ) testified. AR 14, 23-38. On February 24, 2009, the ALJ issued a 11 decision denying benefits. AR 14-22. The Appeals Council denied Ibarra s 12 request for review. AR 1-3. This action followed. 13 II. 14 STANDARD OF REVIEW 15 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s 16 decision to deny benefits. The decision will be disturbed only if it is not supported 17 by substantial evidence, or if it is based upon the application of improper legal 18 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 19 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 20 Substantial evidence means more than a mere scintilla but less than a 21 preponderance it is such relevant evidence that a reasonable mind might 22 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 23 determining whether substantial evidence exists to support the Commissioner s 24 decision, the Court examines the administrative record as a whole, considering 25 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 26 evidence is susceptible to more than one rational interpretation, the Court must 27 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 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 Ibarra has the following severe impairment: substance induced psychotic The ALJ s Findings 12 disorder. AR 17. Ibarra s impairment meets the criteria of Listings 12.03 and 13 12.09 of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. 14 Ibarra has a marked restriction in the activities of daily living; marked difficulties 15 in social functioning; marked difficulties regarding concentration, persistence or 16 pace; with no episodes of decompensation of extended duration. AR 18. These 17 restrictions are related to and caused by [Ibarra s] substance abuse problems 18 which continued to be evident throughout the alleged disability period. Id. 19 If Ibarra stopped the substance use, he would continue to have a severe 20 impairment or combination of impairments. AR 18. However, he would not 21 have an impairment or combination of impairments that meets or medically 22 equals any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 23 1. Id. Therefore, Ibarra s substance use disorder is a contributing factor material 24 to the determination of disability. AR 21. As a result, Ibarra has not been 25 disabled within the meaning of the Social Security Act at any time following the 26 alleged onset date. Id. 27 28 If Ibarra stopped the substance use, he would have the residual functional capacity ( RFC ) to perform a full range of work at all exertional levels but with 3 1 the following non-exertional limitations: no climbing of ladders, ropes or scaffolds; 2 no unprotected heights; no dangerous machinery; no fast moving machinery; no 3 hypervigilance required; habituated work setting; not in charge of the safety 4 operation of others; no intense interpersonal interactions; object oriented 5 environment; no supervision of others; and moderate stress environment with 6 general public interactions. AR 19. 7 8 9 10 If Ibarra stopped the substance use, he would be able to perform past relevant work as a Laborer Stores and Janitor. AR 21. C. Treating Psychiatrist s Opinion Ibarra argues that the ALJ improperly rejected the opinion of Ibarra s 11 treating psychiatrist, Dr. Kim. JS 3-4. According to Ibarra, the ALJ failed to 12 provide specific and legitimate reasons, supported by substantial evidence, for 13 rejecting the treating psychiatrist s opinion regarding [Ibarra s] mental status and 14 limitations. JS 4. 15 The Ninth Circuit distinguishes among three types of physicians: (1) 16 treating physicians (who examine and treat), (2) examining physicians (who 17 examine but do not treat), and (3) non-examining physicians (who neither 18 examine nor treat). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). An 19 opinion of a treating physician is given more weight than the opinion of a 20 non-treating physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 21 An examining physician's opinion constitutes substantial evidence when it 22 is based on independent clinical findings. Id. However, [w]hen an examining 23 physician relies on the same clinical findings as a treating physician, but differs 24 only in his or her conclusions, the conclusions of the examining physician are not 25 substantial evidence. Id. at 632. 26 A non-examining physician's opinion constitutes substantial evidence when 27 it is supported by other evidence in the record and consistent with it. Andrews v. 28 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). However, a non-examining 4 1 physician's opinion cannot by itself constitute substantial evidence. Widmark v. 2 Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 2006). 3 When there is conflicting medical evidence, the Secretary must determine 4 credibility and resolve the conflict. Thomas v. Barnhart, 278 F.3d 947, 956-57 5 (9th Cir. 2002) (citation and quotation marks omitted). When a treating 6 physician's opinion is contradicted by another doctor, the ALJ may not reject this 7 opinion without providing specific and legitimate reasons supported by substantial 8 evidence in the record. This can be done by setting out a detailed and thorough 9 summary of the facts and conflicting clinical evidence, stating his interpretation 10 thereof, and making findings. Orn, 495 F.3d at 632 (citations and quotation 11 marks omitted). When the ALJ declines to give a treating physician's opinion 12 controlling weight, the ALJ considers several factors, including the following: (1) 13 length of the treatment relationship and frequency of examination;1 (2) nature and 14 extent of the treatment relationship;2 (3) the amount of relevant evidence 15 supporting the opinion and the quality of the explanation provided; (4) 16 consistency with record as a whole; and (5) the specialty of the physician 17 providing the opinion. See Orn, 495 F.3d at 631; 20 C.F.R. § 404.1527(d)(1)-(6). 18 The ALJ rejected the medical conclusions of Dr. Kim who, in a Mental 19 Impairment Questionnaire Form ( Questionnaire ), found that Ibarra suffers from 20 a schizophrenic disorder with the following symptoms: delusional, sexual 21 preoccupation, violent acting out, affect is blunted, poverty of thought. AR 257, 22 23 24 25 26 27 28 1 Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion. When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the source's opinion more weight than we would give it if it were from a nontreating source. 20 C.F.R. § 404.1527(d)(2)(i). 2 Generally, the more knowledge a treating source has about your impairment(s) the more weight we will give to the source's medical opinion. 20 C.F.R. § 404.1527(d)(2)(ii). 5 1 261. According to Dr. Kim, Ibarra has been sick for many years with very low 2 functioning level even with stable condition and is consequently unable to 3 perform any kind of gainful, competitive employment. AR 260-61. 4 The ALJ rejected Dr. Kim s opinion because there is no longitudinal history 5 of treatment by which an appropriate conclusion can be derived, and because the 6 identity of the reporting psychologist is a mystery due to the illegible signature on 7 the Questionnaire and the failure of the psychiatrist to print or type his name.3 AR 8 20. At the same time, the ALJ gave significant weight to the opinion of Dr. Rath, 9 a non-examining ME, who determined that Ibarra had a substance induced 10 psychiatric disorder that s controlled by medication when he s compliant and 11 refraining from illicit substance abuse. AR 19-20, 32. 12 Dr. Kim did not print or type his name on the Questionnaire and his 13 signature on the form is illegible. AR 261. The ALJ therefore concluded that the 14 answers on the Questionnaire were highly suspect because [t]here is no way to 15 determine who exactly completed this questionnaire. AR 20. The 16 Questionnaire, however, contains an address, telephone number and best time to 17 call. AR 261. The psychiatrist s signature is substantially the same as the 18 signature in Dr. Kim s medical file. Compare AR 261 with AR 265-71. Dr. Kim s 19 identity was ascertainable from the evidence in the record. See 20 C.F.R. § 20 404.1512(e) (providing that the agency will seek additional evidence or 21 clarification from your medical source when the report from your medical source . 22 23 24 25 26 27 28 3 In the JS, the Commissioner argues that the ALJ could have properly rejected Dr. Kim s findings as reported in the Questionnaire because they were conclusionary and merely stated his or her opinion without offering detailed support. JS 5. It is permissible for an ALJ to prefer an opinion supported by specific clinical findings and an explanation thereof over a check-off type of form lacking an explanation of the basis for the conclusions. See Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996). The ALJ did not articulate this as a basis for rejecting Dr. Kim s diagnosis, however, and therefore it cannot serve as a ground for affirming the ALJ s determination. A court may review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely. Orn, 495 F.3d at 630. 6 1 . . does not contain all the necessary information . . . . We may do this . . . by 2 telephoning your medical source. ). The ALJ s rejection of Dr. Kim s opinion 3 based on an inability to determine his identity is not supported by substantial 4 evidence. 5 The ALJ also rejected Dr. Kim s opinion because there is no longitudinal 6 history of treatment. AR 20. The [l]ength of the treatment relationship and the 7 frequency of examination are legitimate factors that an ALJ may consider in 8 determining the weight to give a medical opinion. 20 C.F.R. § 404.1527(d)(2)(ii); 9 Orn, 495 F.3d at 631. The Questionnaire, which Dr. Kim completed on June 17, 10 2008, reflects that Dr. Kim met with Ibarra every two to four weeks between 11 Ibarra s initial visit on April 10, 2008 and his last visit prior to the completion of the 12 Questionnaire on May 27, 2008. AR 261. In addition, the record contains Dr. 13 Kim s medical records for Ibarra. According to the file, Dr. Kim saw Ibarra eight 14 times between April 1, 2008 and September 17, 2008. AR 265-79. The file also 15 contains a screening interview and assessment by Dr. Williams on March 25, 16 2008. The screening interview contains Ibarra s symptoms and history of 17 psychiatric hospitalizations. AR 274-78. The ALJ does not address Dr. Kim s 18 medical file and appears to be unaware that the file came from the 19 Questionnaire s author. The rejection of Dr. Kim s opinion on the ground that the 20 record did not contain a longitudinal history of treatment is therefore not 21 supported by substantial evidence. 22 Given that the ALJ did not address Dr. Kim s medical file, remand is 23 appropriate. See Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) (remand 24 for additional investigation or explanation is generally the proper course when a 25 court reverses an administrative agency determination). On remand, the 26 Commissioner may reconsider Dr. Kim s opinion in light of the medical file and 27 may take any other steps he deems appropriate, such as obtaining additional 28 medical records. 7 1 D. 2 Ibarra argues that the ALJ improperly found he was capable of performing Past Relevant Work 3 his past relevant work as laborer stores and janitor. JS 15-19. According to 4 Ibarra, the ALJ erred in determining that these jobs do[] not require the 5 performance of work-related activities precluded by [Ibarra s] residual functional 6 capacity. JS 15. 7 At step four of the sequential analysis, the claimant has the burden to 8 prove that he cannot perform his prior relevant work either as actually performed 9 or as generally performed in the national economy. Carmickle v. Comm'r of 10 Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008) (citation omitted). 11 Although the burden of proof lies with the claimant at step four, the ALJ still has 12 a duty to make the requisite factual findings to support his conclusion. Pinto v. 13 Massanari, 249 F.3d 840, 844 (9th Cir. 2001). The ALJ must make specific 14 findings as to the claimant s residual functional capacity, the physical and mental 15 demands of the past relevant work, and the relation of the residual functional 16 capacity to the past work. Id. at 845; Social Security Ruling ( SSR ) 82-62;4 see 17 also 20 C.F.R. §§ 404.1520(e) & 416.920(e). 18 The VE stated that Ibarra s past relevant work consisted of laborer stores 19 (DOT 922.687-058), an unskilled position, and janitor (DOT 382.664-010), a 20 semi-skilled position, performed at the medium exertional level. AR 36 (citing AR 21 194). The VE testified that Ibarra was capable of returning to both of these 22 positions. AR 37. 23 24 The ALJ is not required to make explicit findings as to whether a claimant can perform past relevant work both as generally performed and as actually 25 26 27 28 4 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 performed. Pinto, 249 F.3d at 845. Ibarra does not address his past relevant 2 work as actually performed. JS 16-18. Ibarra testified he could perform his past 3 work as a warehouseman. AR 35. Moreover, Ibarra did not describe his past 4 work as involving climbing. AR 157-59. Ibarra s descriptions of his prior work 5 may constitute substantial evidence supporting the ALJ s step four determination. 6 See Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (claimant s testimony 7 about past relevant work is highly probative ). 8 Ibarra argues that his RFC, which precludes climbing ladders, ropes or 9 scaffolds, is inconsistent with the Dictionary of Occupational Titles ( DOT ) 10 description of laborer stores and janitor because the DOT states that both 11 positions involve occasional climbing up to one-third of the time. DOT 922.687- 12 058, 382.664.010; JS 16-17. Ibarra further argues that his RFC, which precludes 13 him from positions involving dangerous machinery and fast moving machinery, 14 may be inconsistent with the DOT description of janitor as using handtools, power 15 tools, or lawnmowers. DOT 382.664-010; JS 17. The DOT raises a rebuttable 16 presumption as to job classification. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th 17 Cir. 1995). When there is a conflict between the VE s testimony and the DOT, 18 Ibarra argues, the ALJ is required to ask the VE whether his/her testimony 19 conflicts with the DOT and, if so, whether there is a reasonable explanation for 20 any conflict. Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007); Bray v. 21 Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1234 (9th Cir. 2009); SSR 00-4p. 22 Because this matter is being remanded for reconsideration of Dr. Kim s 23 opinion, the Commissioner is free to revise his RFC assessment and reconsider 24 his step four determination if appropriate. 25 The Court notes that Ibarra makes three additional arguments: (1) the ALJ 26 erroneously ignored the state agency physician s opinion, particularly those areas 27 in which Ibarra was found to have moderate limitations; (2) the ALJ failed to 28 consider the statements of Ibarra s sister; and (3) the ALJ posed an incomplete 9 1 hypothetical. Again, because this matter is being remanded for reconsideration 2 of Dr. Kim s opinion, the Court does not reach these additional issues. 3 IV. 4 ORDER 5 6 7 8 IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and the matter remanded. 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. 9 10 11 DATED: July 22, 2010 ALICIA G. ROSENBERG United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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