Barry Cash v. Michael J Astrue, No. 5:2009cv01150 - Document 18 (C.D. Cal. 2010)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is REVERSED. 2. This action is REMANDED to defendant for payment of benefits. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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Barry Cash v. Michael J Astrue Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 13 14 15 16 17 BARRY CASH, ) ) Plaintiff, ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner, Social Security ) Administration, ) ) Defendant. ) ) No. EDCV 09-1150 CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. 21 review of the Commissioner s denial of disability benefits. 22 discussed below, the court finds that the Commissioner s decision 23 should be reversed and this matter remanded for payment of benefits. 24 25 I. Plaintiff seeks As BACKGROUND Plaintiff Barry Cash was born on November 16, 1961 and was forty- 26 six years old at the time of his administrative hearing. 27 [Administrative Record ( AR ) 8, 18.] He has a ninth grade education 28 and past relevant work experience as an electrician s helper, building 1 Dockets.Justia.com 1 maintenance/repair person, and machine cutter. [AR 18.] 2 alleges disability on the basis of low back pain, left leg and ankle 3 pain, pain in the right shoulder, and schizoaffective disorder. [AR 4 10.] 5 6 II. Plaintiff PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on June 12, 2009, and filed on 7 June 23, 2009. 8 Plaintiff s Administrative Record ( AR ). 9 parties filed their Joint Stipulation ( JS ) identifying matters not 10 in dispute, issues in dispute, the positions of the parties, and the 11 relief sought by each party. 12 submission without oral argument. 13 14 On December 3, 2009, defendant filed an Answer and III. On March 22, 2010, the This matter has been taken under PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff Barry Cash applied for disability insurance benefits 15 ( DIB ) and supplemental security income ( SSI ) on June 8, 2007, 16 alleging disability since July 1, 2006. [JS 2; AR 8.] 17 application was denied initially and on reconsideration, an 18 administrative hearing was held on November 7, 2008, before an 19 Administrative Law Judge ( ALJ ). 20 appeared with counsel, and testimony was taken from Plaintiff and a 21 vocational expert. 22 March 11, 2009. 23 review on May 7, 2009, the ALJ s decision became the Commissioner s 24 final decision. 25 26 [Transcript, AR 8.] After the Plaintiff [Id.] The ALJ denied benefits in a decision dated [Decision, AR 5.] When the Appeals Council denied [AR 1.] IV. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 27 Commissioner s decision to deny benefits. 28 ALJ s) findings and decision should be upheld if they are free of 2 The Commissioner s (or 1 legal error and supported by substantial evidence. 2 court determines that a finding is based on legal error or is not 3 supported by substantial evidence in the record, the court may reject 4 the finding and set aside the decision to deny benefits. 5 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 6 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 7 F.3d 1157, 1162 (9th Cir. 8 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 9 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 10 11 However, if the See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). Substantial evidence is more than a scintilla, but less than a 12 preponderance. Reddick, 157 F.3d at 720. 13 which a reasonable person might accept as adequate to support a 14 conclusion. 15 a finding, a court must review the administrative record as a whole, 16 weighing both the evidence that supports and the evidence that 17 detracts from the Commissioner s conclusion. 18 can reasonably support either affirming or reversing, the reviewing 19 court may not substitute its judgment for that of the Commissioner. 20 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. It is relevant evidence To determine whether substantial evidence supports V. 21 Id. If the evidence DISCUSSION 22 A. THE FIVE-STEP EVALUATION 23 To be eligible for disability benefits a claimant must 24 demonstrate a medically determinable impairment which prevents the 25 claimant from engaging in substantial gainful activity and which is 26 expected to result in death or to last for a continuous period of at 27 least twelve months. 28 721; 42 U.S.C. § 423(d)(1)(A). Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 3 1 Disability claims are evaluated using a five-step test: 2 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 3 4 5 6 7 8 9 10 11 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 12 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 13 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 14 C.F.R. § 404.1520, § 416.920. If a claimant is found disabled or 15 not disabled at any step, there is no need to complete further 16 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 17 Claimants have the burden of proof at steps one through four, 18 subject to the presumption that Social Security hearings are non19 adversarial, and to the Commissioner s affirmative duty to assist 20 claimants in fully developing the record even if they are represented 21 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 22 1288. If this burden is met, a prima facie case of disability is 23 made, and the burden shifts to the Commissioner (at step five) to 24 prove that, considering residual functional capacity ( RFC )1, age, 25 26 1 27 28 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to 4 1 education, and work experience, a claimant can perform other work 2 which is available in significant numbers. 3 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 4 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 5 Here, the ALJ found that Plaintiff had not engaged in substantial 6 gainful activity since July 1, 2006 (step one) and that Plaintiff had 7 the following severe impairments: status post fractures to the left 8 ankle, left fibula and right shoulder; musculoligamentous 9 sprain/strain to the lumbar spine, schizoaffective disorder and a 10 history of substance abuse (step two). [AR 10.] Plaintiff did not have 11 an impairment or combination of impairments that met or equaled a 12 listing (step three). 13 enabling him to perform a limited range of light work including 14 lifting and carrying ten pounds frequently and twenty pounds 15 occasionally. 16 out of an eight-hour work day and sit for six hours out of an eight- 17 hour work day. 18 impairments limit him to simple, repetitive tasks. Id. 19 determined that Plaintiff cannot perform his past relevant work (step 20 four). [AR 18.] 21 that a person with Plaintiff s RFC would be able to perform several 22 jobs that exist in significant numbers in the national economy such as 23 assembler, inspector, or packager (step five). [AR 19.] 24 Plaintiff was found not disabled as defined by the Social Security Id. Id. [AR 11.] Plaintiff was found to have an RFC He was found able to stand and walk for two hours Finally, the ALJ found that his mental The ALJ thus The ALJ cited the vocational expert ( VE ) testimony Accordingly, 25 26 27 28 work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 Act. Id. 2 C. 3 The parties Joint Stipulation sets out the following disputed 4 issues: 5 1. ISSUES IN DISPUTE Whether the ALJ properly considered the treating 6 psychiatrist s opinion regarding the Client s Dysfunction 7 Rating and Behavioral Evidence. 8 2. Whether the ALJ properly considered lay witness testimony. 9 3. Whether the ALJ posed a complete hypothetical question to 10 the Vocational Expert. 11 [JS 2.] 12 Because Issue One is dispositive, the court need not reach the 13 additional grounds raised in the Joint Stipulation. 14 D. ISSUE ONE: DR. MEJIA 15 In his first claim, Plaintiff alleges that the ALJ did not 16 properly consider the opinion of Dr. Marissa Mejia, M.D., who was 17 Plaintiff s treating psychiatrist since September of 2006. [JS 3, AR 18 209-210.] 19 Background 20 Plaintiff first sought mental health treatment from the San 21 Bernadino County Department of Behavior Health on July 18, 2006, at 22 the behest of his sister. [AR 294-97.] 23 Plaintiff was first examined on August 3, 2006 by Dr. Thuy Huynh 24 Nguyen, M.D. [AR 216.] 25 paranoia, Dr. Nguyen s diagnostic impression was that Plaintiff 26 suffered from schizoaffective disorder of the bi-polar type. 27 Dr. Nguyen referred Plaintiff to Dr. Mejia for further treatment. [Id. 28 at 217.] According to the record, After noting Plaintiff s manic symptoms and On September 7, 2006 Dr. Mejia performed an Adult 6 [Id.] 1 Psychiatric Evaluation on Plaintiff. [AR 209-210.] Plaintiff reported 2 that he had been hearing voices and feeling paranoid and depressed 3 since age 17 or 18. [Id. at 209.] Dr. Mejia noted symptoms of mania 4 including racing thoughts, fast talking, bizarre behavior and 5 impulsivity. [Id.] Dr. Mejia s Mental Status Examination revealed 6 Plaintiff to have both auditory and visual hallucinations, and 7 paranoid delusions. [Id. at 210.] Dr. Mejia s diagnosis was that 8 Plaintiff suffered from Bipolar Disorder, Type 1 (provisional) and 9 Schizoaffective Disorder, thereby confirming Dr. Nguyen s diagnosis. 10 11 [Id.] Plaintiff continued treatment with Dr. Mejia, visiting her office 12 consistently from the date of his first examination. [AR 204-07, 274- 13 88.] Her treatment notes state that Plaintiff responded to his 14 medications and experienced hallucinations and paranoia with less 15 frequency. [AR 16 completed a Work Capacity Evaluation (Mental) form, assessing 17 Plaintiff as having moderate to extreme functional limitations. [AR 18 299-300.] Plaintiff had marked limitations in nine of sixteen 19 categories and extreme limitations in two categories.2 [Id.] Dr. Mejia 206-07, 276, 280-81.] On March 26, 2008, Dr. Mejia 20 21 22 23 24 25 26 27 28 2 Marked limitation is defined as Serious limitations in this area. The ability to fnction in this area is severely limited but not precluded. [AR 299.] Extreme limitation is defined as Severe limitations in this area. No useful ability to function in this area. Id. Plaintiff was assessed as having marked limitations in the ability to: remember locations and work-like procedures; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; sustain an ordinary routine without special supervision; work in coordination with or proximity to others without being distracted; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; get along with co-workers or peers without distracting them or exhibiting behavioral extremes; be aware of normal hazards and take appropriate precautions. [Id.] Plaintiff was further assessed as 7 1 concluded that she anticipated that Plaintiff would be absent from 2 work three days or more per month. [Id.] 3 The Commissioner s Finding 4 The ALJ declined to give significant weight to Dr. Mejia s 5 opinion. [AR 17.] His first reason for rejecting her opinion was that 6 Dr. Mejia s opinion was tendered on a check-box form. 7 further stated that Plaintiff s marked and extreme limitations are 8 unsupported by (Dr. Mejia s) own treatment notes. 9 ALJ gave Dr. Mejia s opinions less weight because her treatment notes 10 showed that the claimant s condition is stable with medication, and 11 his alleged hallucinations and paranoia are minimal. [Id.] Id. Id. The ALJ Finally, the 12 Discussion 13 It is well-settled that the opinion of a treating physician is 14 entitled to deference in the Commissioner s disability determination. 15 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 16 treating physician s opinion is well-supported by medically 17 acceptable clinical . . . techniques and is not inconsistent with the 18 other substantial evidence in [the] case record, [it will be given] 19 controlling weight. 20 the Commissioner may reject a treating physician s opinion that is 21 brief and conclusory in the form of a checklist with little in 22 the way of clinical findings to support that conclusion that appellant 23 was totally disabled. 20 C.F.R § 404.1527(d)(2). By rule, if a Yet in some cases, Batson v. Commissioner of Social Sec. Admin., 24 25 26 27 28 having extreme limitations in the ability to: respond appropriately to changes in the work setting and the ability to set realistic goals or make plans independently of others. [Id.] 8 1 359 F.3d 1190, 1195 n.3 (9th Cir. 2004).3 2 the opinion of the treating physician, he must support his findings by 3 presenting a detailed and thorough summary of the facts and 4 conflicting clinical evidence. 5 Cir. 2007) (citing Magallanes, 881 F.2d at 751). 6 However, if the ALJ rejects Orn v. Astrue, 495 F.3d 625, 632 (9th Here, here the ALJ rejected the treating physician s findings on 7 the cited grounds that they were rendered on a checklist form and 8 unsupported by the medical record. [AR 17.] 9 that Dr. Mejia s assessment was well supported by extensive treatment However, the record shows 10 notes and by the opinion of her colleague, Dr. Nguyen. 11 216, 276, 280-81.] 12 Plaintiff s hallucinations and paranoia were reduced by medication. 13 [AR 17.] 14 completely free from hallucinations or paranoia at any time during his 15 treatment. 16 [AR 206-07, The ALJ relied on evidence in the record that However, there is no documentation that Plaintiff was [AR 206-07, 276, 280-81.] Dr. Mejia s treatment notes detail that Plaintiff experienced 17 varying levels of hallucinations and paranoia throughout his 18 treatment, beginning with his visit of September 7, 2006, where Dr. 19 Mejia noted the presence of auditory and visual hallucinations and 20 paranoid delusions which Plaintiff experienced beginning at age 21 seventeen or eighteen. [AR 209-10.] 22 and regular medications, Dr. Mejia noted, on January 8, 2007, 23 Plaintiff doesn t hear voices as often. [AR 208.] On April 16 2007 After Plaintiff began treatment 24 25 26 27 28 3 See also Connett v. Barnhart, 340 F.3d 871, 874-875 (9th Cir. 2003) (holding that the ALJ did not err in rejecting the controverted opinion of a treating physician whose restrictive functional assessment was not supported by treatment notes); Holohan v. Massanari, 246 F.3d 1195, 1202 n.2 (9th Cir. 2001)(stating that a physician's opinion may be entitled to little if any weight where the physician presents no support for her or his opinion ). 9 1 Dr. Mejia recorded Plaintiff has occasional auditory hallucinations 2 and residual paranoia and on June 4 still has auditory 3 hallucinations . . . and paranoia. [AR 206-07.] 4 evaluated by Mental Health Nurse Leonida Gutierrez on August 29, 2007, 5 when he admitted to hearing voices and feeling paranoid. 6 Likewise, on October 17, 2007, Dr. Mejia noted ongoing auditory 7 hallucinations and paranoia. [AR 281.] 8 Mejia s notes indicate Plaintiff was doing fairly well, but felt 9 paranoid around people. [AR 280.] Plaintiff was [AR 282.] On December 5, 2007, Dr. In 2008, Plaintiff was documented 10 as feeling less paranoid on January 30, although he again complained 11 of paranoia during a visit on March 16, 2008. [AR 279, 282.] Combined, 12 these instances support Dr. Mejia s opinion that Plaintiff s 13 hallucinations and paranoia are severe and that he has marked or 14 extreme impairments even with medication. 15 legitimate reasons based on substantial evidence in the record were 16 not provided to discount Dr. Mejia s opinion, and reversal on the 17 basis of this issue is required. Accordingly, specific and Lester, 81 F.3d at 830. 18 E. REMAND FOR PAYMENT OF BENEFITS 19 The decision whether to remand for further proceedings is within Harman v. Apfel, 211 F.3d 1172, 20 the discretion of the district court. 21 1175-1178 (9th Cir. 2000). 22 must be resolved before a determination can be made, and it is not 23 clear from the record that the ALJ would be required to find the 24 claimant disabled if all the evidence were properly evaluated, remand 25 is appropriate. 26 purpose would be served by further proceedings, or where the record 27 has been fully developed, it is appropriate to exercise this 28 discretion to direct an immediate award of benefits. Id. (decision Where there are outstanding issues that Harman, 211 F.3d at 1179. 10 However, where no useful 1 whether to remand for further proceedings turns upon their likely 2 utility). 3 Here, as set out above, specific and legitimate reasons supported 4 by substantial evidence in the record were not provided to reject Dr. 5 Mejia s opinion; accordingly, it is credited as true. 6 Apfel, 211 F.3d at 1178; Lester v. Chater, 81 F.3d at 834. 7 above, at the administrative hearing, the vocational expert testified 8 that a person with Plaintiff s ascribed RFC limitations could perform 9 the jobs of assembler, inspector or packager. [AR 49.] Harman v. As noted Plaintiff s 10 attorney posed an alternative hypothetical as to an individual who was 11 10 percent off task due to the individual s mood swings or mental 12 distractions, consistent with Dr. Mejia s assessment. [AR 50.] 13 expert replied that he did not believe said individual could do the 14 identified jobs. [Id.] 15 1180 (citing cases where award of benefits was directed when there was 16 vocational expert testimony that the limitations established by 17 improperly discredited medical evidence would render claimant unable 18 to work). 19 The See generally Harman v. Apfel, 211 F.3d at Moreover, even absent specific vocational expert testimony at 20 Plaintiff s hearing, Dr. Mejia s assessment that Plaintiff would be 21 absent from work three or more days per month further indicates that a 22 disability finding would be required. 23 Supp. 2d 746, 753 (W.D. Ky. 2009)(VE testified that employers 24 typically will tolerate no more than two absences per month on a 25 consistent basis); Dambrowski v. Astrue, 590 F. Supp. 2d 579, 584 26 (S.D. NY 2008)(VE testified that claimant who missed work on average 27 three days per month could not sustain any jobs indicated); Wright v. 28 Barnhart, 389 F. Supp. 2d 13, 19 (D.Mass. 2005)(VE testified that no 11 See Dennis v. Astrue, 655 F. 1 occupation would tolerate three absences per month); Campbell v. 2 Barnhart, 374 F. Supp. 2d 498, 502 (E.D. Tex. 2005)(VE testified that 3 three absences per month would preclude competitive employment); 4 McGraw v. Apfel, 87 F. Supp. 2d 845, 852 (N.D. Ind. 1999)(VE testified 5 that claimant could not perform any work with more than two absences 6 per month); Connor v. Shalala, 900 F. Supp. 994, 1003 (N.D. Ill. 7 1995)(VE testified that an unskilled job would not tolerate more than 8 two absences per month on a consistent basis). 9 circumstances, remand for payment of benefits is appropriate. Under these See 10 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004)(remanding 11 for payment of benefits despite lack of extensive vocational expert 12 testimony because claimant s entitlement to disability benefits is 13 clear ). 14 VI. ORDERS 15 Accordingly, IT IS ORDERED that: 16 1. The decision of the Commissioner is REVERSED. 17 2. This action is REMANDED to defendant for payment of 18 19 20 benefits. 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 21 22 23 24 DATED: July 20, 2010 _________________________________ CARLA M. WOEHRLE United States Magistrate Judge 25 26 27 28 12

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