Mark Face v. Michael J Astrue, No. 5:2009cv01508 - Document 18 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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Mark Face v. Michael J Astrue Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 MARK FACE, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 09-01508-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on August 13, 2009, seeking review of 19 the denial by the Social Security Commissioner (“Commissioner”) of 20 plaintiff’s application for disability insurance benefits (“DIB”). 21 November 22 undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 23 636(c). 24 which: 25 and awarding benefits or, in the alternative, remanding the matter for 26 further 27 affirming the Commissioner’s decision. The Court has taken the parties’ 28 Joint Stipulation under submission without oral argument. 18, 2009, the parties consented to proceed before On the The parties filed a Joint Stipulation on March 11, 2010, in plaintiff seeks an order reversing the Commissioner’s decision administrative proceedings; and defendant seeks an order Dockets.Justia.com SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 On January 31, 2002, plaintiff filed an application for a period of 4 disability and DIB, alleging a disability onset date of May 10, 2001, 5 due to diabetes, high blood pressure, and depression. 6 Record (“A.R.”) 72-74, 90.) Plaintiff has past relevant work as a truck 7 driver and school bus driver. (Administrative (A.R. 100.) 8 9 The Commissioner denied plaintiff’s application initially and upon 10 reconsideration. (A.R. 47-50, 52-55.) On September 4, 2003, plaintiff, 11 who 12 Administrative Law Judge F. Keith Varni (“ALJ Varni”). 13 Joseph Mooney, a vocational expert, also testified. 14 September 24, 2003, ALJ Varni denied plaintiff’s application. 15 14.) 16 review of the ALJ’s decision. was represented by counsel, testified at a hearing before (A.R. 27-44.) (A.R. 40-42.) On (A.R. 9- The Appeals Council subsequently denied plaintiff’s request for (A.R. 3-4.) 17 18 On October 24, 2003, plaintiff filed a subsequent application for 19 a period of disability and DIB.1 (A.R. 209, 258.) On April 3, 2004, the 20 application was granted, and the Commissioner determined that plaintiff 21 has been disabled since September 24, 2003. (A.R. 452-55.) 22 23 On April 14, 2004, Plaintiff initiated a civil action in the United 24 States District Court, Central District of California to appeal the 25 September 24, 2003 decision, which had become the final decision of the 26 27 28 1 The record does not specify the grounds for plaintiff’s second application, but it does indicate that, in October 2003, plaintiff was diagnosed with HIV and hepatitis C. (A.R. 378.) 2 1 Commissioner. (A.R. 240.) 2 Commissioner’s decision on the basis that ALJ Varni failed to provide 3 specific and legitimate reasons for rejecting the opinion of Dr. Theron 4 Wells and needed to further develop the record by re-contacting Dr. 5 Wells. 6 proceedings consistent with its decision. 7 2006, the Appeals Council remanded the case for further proceedings 8 consistent with the Court Order and, noting the grant of plaintiff’s 9 subsequent claim for disability, limited the proceedings to prior to (A.R. 240-54.) On July 20, 2005, this Court reversed the This Court remanded the matter for further (A.R. 255.) On February 28, 10 September 25, 2003. 11 Administrative Law Judge to give further consideration to Dr. Wells’ 12 opinion and stated that he may contact Dr. Wells. (A.R. 258-59.) The Appeals Council directed the (Id.) 13 14 On September 5, 2006, plaintiff testified at a hearing before ALJ 15 Varni. 16 testified. (A.R. 361-64.) 17 contacted Dr. Wells, ALJ Varni again denied plaintiff’s application. 18 (A.R. 209-18.) 19 in this district to appeal the October 27, 2006, decision. 20 90.) 21 Remand Pursuant to Sentence Four of 42 U.S.C. § 405(g) and to Entry of 22 Judgment. 23 judgment on July 26, 2007, ordering that, on remand, the Administrative 24 Law 25 physicians, namely, Dr. Wells, Dr. William H. Cherry, and Dr. Peterson 26 (the “Stipulated Remand Order”). (A.R. 360-65.) Sandra Fioretti, a vocational expert, also On October 27, 2006, without having re- On January 11, 2007, plaintiff initiated a civil action (A.R. 489- On July 26, 2007, the parties executed a Stipulation to Voluntary Judge Pursuant to the parties’ Stipulation, the Court entered was to re-contact and/or contact plaintiff’s treating (A.R. 487-88.) 27 28 On February 13, 2009, plaintiff testified at a hearing before 3 1 Administrative Law Judge Lowell Fortune (“ALJ” or “ALJ Fortune”). (A.R. 2 387-404.) 3 03.) 4 369-81.) Troy Scott, a vocational expert, also testified. (A.R. 401- On April 8, 2009, the ALJ denied plaintiff’s application. (A.R. 5 6 SUMMARY OF ADMINISTRATIVE DECISION 7 8 The ALJ found that plaintiff did not engage in substantial gainful 9 activity from May 10, 2001, the alleged onset date, through September 10 24, 2003. 11 following severe impairments: 12 adjustment disorder; and methamphetamine abuse. 13 impairments, including the substance abuse disorder, met sections 12.04 14 and 12.09 of 20 C.F.R. Part 404, Subpart P, Appendix 1. 15 determined, however, that if plaintiff stopped the substance abuse, his 16 impairments would not have met or equaled any of the impairments listed 17 in 20 C.F.R. Part 404, Subpart P, Appendix 1. (A.R. 372, 381.) The ALJ determined that plaintiff had the insulin-dependent diabetes mellitus; (A.R. 372.) (Id.) The The ALJ (A.R. 373.) 18 19 The ALJ determined that had plaintiff stopped the substance abuse 20 during the relevant period, he would have had the residual functional 21 capacity (“RFC”) to: 22 23 perform medium work as defined in 20 [C.F.R.] 404.1567(c) 24 except [plaintiff] was precluded from climbing ladders, ropes, 25 and scaffolds, and he should avoid working around unprotected 26 heights or pools of water. 27 simple, repetitive, nonpublic tasks with no safety operations 28 or responsibility for [t]he safety of others. [Plaintiff] was able to perform 4 1 (A.R. 374.) The ALJ found that plaintiff was unable to perform his past 2 relevant 3 education, work experience, and RFC, as well as relied on testimony from 4 the vocational expert, the ALJ found that jobs existed in the national 5 economy that plaintiff could have performed if he stopped his substance 6 abuse, including cleaner, dishwasher, and handpacker. work. (A.R. 380.) Having considered plaintiff’s age, (A.R. 380-81.) 7 8 Accordingly, the ALJ concluded that plaintiff, had he stopped the 9 substance abuse, was not disabled, as defined in the Social Security 10 Act, from May 10, 2001, through September 24, 2003. (A.R. 381.) 11 12 STANDARD OF REVIEW 13 14 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s 15 decision to determine whether it is free from legal error and supported 16 by substantial evidence in the record as a whole. 17 F.3d 625, 630 (9th Cir. 2007). 18 evidence as a reasonable mind might accept as adequate to support a 19 conclusion.’” 20 a mere scintilla but not necessarily a preponderance.” 21 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 22 record can constitute substantial evidence, only those “‘reasonably 23 drawn from the record’” will suffice. 24 1063, 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is “‘such relevant Id. (citation omitted). The “evidence must be more than Connett v. While inferences from the Widmark v. Barnhart, 454 F.3d 25 26 Although this Court cannot substitute its discretion for that of 27 the Commissioner, the Court nonetheless must review the record as a 28 whole, “weighing both the evidence that supports and the evidence that 5 1 detracts from the [Commissioner’s] conclusion.” Desrosiers v. Sec’y of 2 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 3 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 4 responsible for determining credibility, resolving conflicts in medical 5 testimony, and for resolving ambiguities.” 6 1035, 1039 (9th Cir. 1995). “The ALJ is Andrews v. Shalala, 53 F.3d 7 8 9 The Court will uphold the Commissioner’s decision when the evidence is susceptible to more than one rational interpretation. Burch v. 10 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may 11 review only the reasons stated by the ALJ in his decision “and may not 12 affirm the ALJ on a ground upon which he did not rely.” 13 at 630; see also Connett, 340 F.3d at 874. 14 the Commissioner’s decision if it is based on harmless error, which 15 exists only when it is “clear from the record that an ALJ’s error was 16 ‘inconsequential to the ultimate nondisability determination.’” Robbins 17 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 18 Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 19 at 679. Orn, 495 F.3d The Court will not reverse 20 21 DISCUSSION 22 23 Plaintiff alleges the following three issues: (1) whether the ALJ 24 complied with this Court’s order requiring him to re-contact Dr. Theron 25 Wells; (2) whether the ALJ complied with this Court’s order requiring 26 him to re-contact Dr. William H. Cherry; and (3) whether the ALJ 27 complied with this Court’s order requiring him to contact Dr. Peterson. 28 (Joint Stipulation (“Joint Stip.”) at 3.) 6 Because the three issues are 1 similar, the Court will address these issues as one. 2 3 I. The ALJ Erred By Failing To Comply With the Court’s Remand Order 4 Regarding Dr. Wells and Dr. Cherry, But Did Not Err Regarding Dr. 5 Peterson. 6 7 The Code of Federal Regulations sets forth the procedure for 8 adjudication of social security disability claims. 9 Court remands a case to the Commissioner for further consideration, the 10 Appeals Council” may make a decision or remand to an administrative law 11 judge with instructions. 12 remand a case “in which additional evidence is needed or additional 13 action by the administrative law judge is required.” 14 404.977(a). 15 administrative law judge shall take any action ordered by the Appeals 16 Council and any additional action not inconsistent with the remand 17 order. Once the 20 C.F.R. § 404.983. Appeals Council “When a Federal The Appeals Council may remands the 20 C.F.R. § case, the 20 C.F.R. § 404.977(b). 18 19 On July 26, 2007, the Court remanded the case pursuant to the 20 Stipulated Remand Order, which required the ALJ to: (1) pursuant to the 21 Court Order dated July 20, 2005, re-contact Dr. Wells for all treatment 22 records, to seek clarification regarding his opinion that plaintiff had 23 a poor ability to adapt to work-like situations and to determine whether 24 plaintiff’s visual hallucinations resulted from his prior drug use; (2) 25 contact Dr. Peterson for any mental health treatment records; (3) obtain 26 any updated treatment records from Dr. Cherry and provide further 27 evaluation of his opinion; and (4) reconcile the two previous decisions 28 with regard to the period, if any, when plaintiff may have abused drugs. 7 1 (A.R. 487-88.) On December 13, 2007, the Appeals Council remanded the 2 case to an administrative law judge directing him, in relevant part, to: 3 (1) contact Dr. Wells; (2) obtain the treatment records of Dr. Peterson; 4 and (3) give consideration to the opinions of Dr. Wells and Dr. Cherry 5 (the “Appeals Council Remand Order”). (A.R. 493-95.) 6 7 On October 26, 2008, the ALJ sent a letter to plaintiff’s counsel, 8 requesting that he submit the current mailing addresses for Dr. Wells, 9 Dr. Peterson, and Dr. Cherry. (A.R. 496.) On November 28, 2008, the 10 ALJ sent plaintiff’s counsel a subsequent letter stating that he had not 11 received the mailing addresses of the physicians as requested in his 12 letter dated October 26, 2008, and that if he did not receive them in 20 13 days, he would “consider each doctor to be unlocatable, and their 14 medical records not retrievable.” 15 again failed to respond. 16 issued a decision denying the application. 17 his decision, the ALJ stated that the Court had directed him to re- 18 contact Dr. Wells, Dr. Peterson, and Dr. Cherry, but that the “doctors 19 were not locatable and the medical records were not retrievable.” (A.R. 20 377.) (A.R. 497.) Plaintiff’s counsel Consequently, the ALJ held a hearing and (A.R. 387-404, 369-81.) In 21 22 Plaintiff argues that the ALJ did not make a diligent effort to 23 comply with the Appeals Council Remand Order. 24 15.) (Joint Stip. at 5, 14- 25 26 A. The ALJ Erred By Failing To Contact Dr. Wells and Dr. Cherry. 27 28 The ALJ’s failure to comply with the Stipulated Remand Order and 8 1 related Appeals Council Remand Order with respect to Dr. Wells and Dr. 2 Cherry constitutes error. 3 clearly directed the ALJ to contact Dr. Wells and Dr. Cherry. 4 377.) 5 letters 6 insufficient and unreasonable. 7 ALJ could have obtained the addresses from the medical records. 8 e.g., A.R. 153, 178.) 9 locations, their former employers may have possessed the treatment 10 records needed and/or provided the ALJ with the physicians’ current 11 addresses. 12 information in a phone book or on the internet and/or through the 13 Medical Board of California. As the ALJ acknowledged, these remand orders (A.R. Contrary to the Commissioner’s contentions, solely writing two to plaintiff’s counsel to obtain current addresses (Joint Stip. at 7, A.R. 496-97.) is The (See, Even if the physicians no longer worked at those The ALJ also could have attempted to find the contact 14 15 Plaintiff’s counsel is not without blame and offers no explanation 16 for his failure to respond to the two letters from the ALJ. 17 that plaintiff’s counsel was delinquent in his duties, however, does not 18 absolve the ALJ of his duty to comply with the Stipulated Remand Order. 19 In social security cases, the law is well-settled that the ALJ has an 20 affirmative “‘duty to fully and fairly develop the record and to assure 21 that the claimant's interests are considered.’” 22 242 F.3d 1144, 1150 (9th Cir. 2001)(citations omitted). 23 extends to the represented as well as to the unrepresented claimant.” 24 Id.; see also Celaya v. Halter, 332 F.3d 117, 1183 (9th Cir. 2003) 25 (noting that the ALJ has an affirmative “duty to fully and fairly 26 develop the record and to assure that the claimant’s interests are 27 considered 28 counsel”)(ellipsis in original; quoting Brown v. Heckler, 713 F.2d 441, . . . even when the 9 claimant The fact Tonapetyan v. Halter, is “This duty represented by 1 443 (9th Cir. 1983)). Further, the ALJ has a duty “to scrupulously and 2 conscientiously probe into, inquire of, and explore all the relevant 3 facts” by procuring the necessary, relevant treatment records. 4 v. Sullivan, 975 F.2d 558, 561-62 (9th Cir. 1991)(citation omitted). 5 Here, the ALJ was directed to contact Dr. Wells and Dr. Cherry to 6 supplement the record, yet made no reasonable effort. See, e.g., Rachal 7 v. Astrue, 2008 WL 2620354, *3 (C.D. Cal. June 30, 2008)(finding that 8 the ALJ erred by failing to comply with the remand order directing him 9 to re-contact the treating physician). Higbee 10 11 The Commissioner contends that even if the ALJ’s actions failed to 12 meet his duty to develop the record diligently, they were harmless. 13 (Joint Stip. at 10.) The Court disagrees. 14 15 In the hierarchy of physician opinions considered in assessing a 16 social security claim, “[g]enerally, a treating physician’s opinion 17 carries more weight than an examining physician’s, and an examining 18 physician’s opinion carries more weight than a reviewing physician’s.” 19 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 20 404.1527(d)(1)-(2). The opinions of treating physicians are entitled to 21 the greatest weight, because the treating physician is hired to cure and 22 has a better opportunity to observe the claimant. 23 881 F.2d 747, 751 (9th Cir. 1989). Magallanes v. Bowen, 24 The ALJ relied primarily on the opinions of examining and State 25 26 Agency Review physicians to reach his decision. 27 such, 28 physicians could impact the decision, because the opinions of treating any additional evidence obtained 10 from (A.R. 378-80.) plaintiff’s As treating 1 physicians are given the greatest weight. 2 Further, this Court already has found that the evidence provided by the 3 treating physicians was ambiguous and inadequate. Webb v. Barnhart, 433 4 F.3d 683, 687 (9th Cir. 2005)(“The ALJ’s duty to supplement a claimant's 5 record is triggered by ambiguous evidence, the ALJ’s own finding that 6 the record is inadequate or the ALJ’s reliance on an expert’s conclusion 7 that the evidence is ambiguous.”). 8 first remand order of July 21, 2005, the evidence “is unclear as to what 9 Dr. Wells’ opinion (viz., that [p]laintiff has a ‘poor’ ability to adapt 10 to work-like situations) means in terms of specific limitations that 11 would 12 clarification is vital. Dr. Wells, as a treating psychiatrist, can also 13 provide insight as to whether plaintiff abstained from further substance 14 abuse, and his “records could shed further light on his opinions, 15 observations, and diagnoses.” 16 that the diagnoses and observations of Dr. Cherry, also a treating 17 physician, supported Dr. Wells’ opinion. Dr. Cherry treated plaintiff’s 18 physical problems and diagnosed him with depression. affect [p]laintiff in the Holohan, 246 F.3d at 1202. As the Court clearly stated in its workplace.” (A.R. 251-52.) (A.R. 251.) Thus, The Court further noted (A.R. 242, 250.) 19 20 Given that the ALJ found that plaintiff had the severe impairments 21 of an adjustment disorder and methamphetamine abuse (A.R. 372), any 22 additional evidence obtained from Dr. Wells and Dr. Cherry would help 23 clarify whether plaintiff’s mental impairments resulted solely from his 24 substance abuse. 25 may ultimately prove to be correct, but he has not yet fulfilled his 26 duty to develop the record and obtain all available information. 27 Accordingly, the ALJ erred by failing to comply with the Stipulated 28 Remand Order and related Appeals Council Remand Order. Upon contact with the physicians, the ALJ’s analysis 11 B. 1 2 The ALJ’s Attempt To Contact Dr. Peterson Was In Compliance With The Remand Order. 3 The ALJ’s attempt to contact Dr. Peterson, plaintiff’s treating 4 5 psychiatrist, was reasonable. Unlike the information readily available 6 with respect to Dr. Wells and Dr. Cherry, the ALJ did not have 7 sufficient information to make further attempts to contact Dr. Peterson. 8 The sole reference to Dr. Peterson in the record occurred in a Complete 9 Psychiatric Evaluation, dated July 24, 2006. (A.R. 331-37.) During 10 this evaluation, plaintiff informed the examining psychiatrist that he 11 was being treated by Dr. Peterson. 12 Dr. Peterson’s first name, at which hospital or with which group he 13 practiced, or in which city he is located. (A.R. 332.) Plaintiff did not state 14 15 The ALJ cannot contact a physician when he does not have any 16 information other than a last name and specialty. 17 requests to plaintiff for Dr. Peterson’s current address. 18 97.) 19 explanation for his failure. 20 ALJ’s attempt was reasonable. Plaintiff’s counsel failed to respond and The ALJ sent two has (A.R. 496provided no Given the ALJ’s lack of information, the 21 Accordingly, the ALJ complied with the Stipulated Remand Order 22 23 directing him to contact Dr. Peterson. 24 25 II. Remand Is Required. 26 27 The decision whether to remand for further proceedings or order an 28 immediate award of benefits is within the district court’s discretion. 12 1 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 2 useful purpose would be served by further administrative proceedings, or 3 where the record has been fully developed, it is appropriate to exercise 4 this discretion to direct an immediate award of benefits. 5 (“[T]he decision of whether to remand for further proceedings turns upon 6 the likely utility of such proceedings.”). 7 outstanding issues that must be resolved before a determination of 8 disability can be made, and it is not clear from the record that the ALJ 9 would be required to find the claimant disabled if all the evidence were 10 properly evaluated, remand is appropriate. Where no Id. at 1179 However, where there are Id. at 1179-81. 11 12 Here, outstanding issues remain with respect to the effect of 13 plaintiff’s substance abuse. 14 remedy to allow the ALJ the opportunity to remedy the above-mentioned 15 deficiencies and errors. 16 593 (9th Cir. 2004)(remand for further proceedings is appropriate if 17 enhancement of the record would be useful); McAllister v. Sullivan, 888 18 F.2d 599, 603 (9th Cir. 1989)(remand appropriate to remedy defects in 19 the record). Accordingly, remand is the appropriate See, e.g., Benecke v. Barnhart, 379 F.3d 587, 20 21 CONCLUSION 22 23 Accordingly, for the reasons stated above, IT IS ORDERED that the 24 decision of the Commissioner is REVERSED, and this case is REMANDED for 25 further proceedings consistent with this Memorandum Opinion and Order. 26 27 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 28 copies of this Memorandum Opinion and Order and the Judgment on counsel 13 1 for plaintiff and for defendant. 2 3 LET JUDGMENT BE ENTERED ACCORDINGLY. 4 5 DATED: August 26, 2010 6 7 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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