Christopher Dustin v. Michael J Astrue, No. 5:2009cv01782 - Document 23 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision.(See Order for details) (bem)
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Christopher Dustin v. Michael J Astrue Doc. 23 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 CHRISTOPHER DUSTIN, 10 11 12 13 Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 14 15 Defendant. ) Case No. ED CV 09-1782 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 16 17 I. 18 INTRODUCTION AND SUMMARY 19 On September 28, 2009, plaintiff Christopher Dustin ( Plaintiff ) filed a 20 complaint against defendant Michael J. Astrue ( Defendant ), the Commissioner of 21 the Social Security Administration, seeking review of a denial of supplemental 22 security income benefits ( SSI ). [Docket No. 3.] On March 30, 2010, Defendant filed his answer, along with a certified copy of 23 24 the administrative record. [Docket Nos. 12, 13, 14.] On April 14, 2010, this matter was transferred to the calendar of the 25 26 undersigned Magistrate Judge. [Docket No. 15.] Both Plaintiff and Defendant 27 subsequently consented to proceed for all purposes before the Magistrate Judge 28 pursuant to 28 U.S.C. § 636(c). [Docket Nos. 16, 18.] Dockets.Justia.com 1 Pursuant to an October 5, 2009 case management order, the parties submitted 2 a detailed, 31-page joint stipulation for decision on July 6, 2010. [Docket No. 22.] 3 In sum, having carefully studied, inter alia, the parties joint stipulation and 4 the administrative record, the Court concludes that, as detailed below, the 5 Administrative Law Judge ( ALJ ) failed to fully and fairly develop the record 6 under the circumstances presented here. As the Ninth Circuit teaches, the ALJ has a 7 special duty to ensure that the claimant s interests are considered, particularly where 8 the claimant may have cognitive deficits. The Court thus remands this matter to the 9 Commissioner in accordance with the principles and instructions enunciated in this 10 Memorandum Opinion and Order. 11 II. 12 PERTINENT FACTUAL AND PROCEDURAL BACKGROUND 13 Plaintiff, who was 33 years old on the date of his administrative hearing, has a 14 high school education. (See Administrative Record ( AR ) at 19, 23, 81, 98.) 15 Plaintiff has no past relevant work. (Id. at 17.) 16 On July 19, 2006, Plaintiff filed for SSI, alleging that he has been disabled 17 since May 30, 2006 due to brain bleed and brain damage. (See AR at 44, 49, 18 81-86.) Plaintiff s application was denied initially and upon reconsideration, after 19 which he filed a timely request for a hearing. (Id. at 42, 43, 44-47, 49-53, 54.) 20 On December 9, 2008, Plaintiff, represented by counsel, appeared and 21 testified at a hearing before an ALJ. (See AR at 19, 21-41.) 22 On March 19, 2009, the ALJ denied Plaintiff s request for benefits. (AR 12- 23 18.) Applying the well-known five-step sequential evaluation process, the ALJ 24 found, at step one, that Plaintiff has not engaged in substantial gainful activity since 25 his SSI application date. (Id. at 14.) 26 At step two, the ALJ found that Plaintiff suffers from severe impairments 27 consisting of cerebrovascular accident . . . , organic mental disorder and substance 28 abuse addiction. (AR at 14 (emphasis omitted).) 2 1 At step three, the ALJ determined that the evidence does not demonstrate that 2 Plaintiff s impairment or combination of impairments meets or medically equals the 3 severity of any listing set forth in the Social Security regulations.1/ (AR at 14.) The ALJ then assessed Plaintiff s residual functional capacity2/ ( RFC ) and 4 5 determined that he can perform a full range of medium work. (AR at 14.) The ALJ found, at step four, that Plaintiff has no past relevant work. (AR at 6 7 17.) At step five, based on Plaintiff s RFC and the Medical-Vocational Guidelines 8 9 ( grids ), see 20 C.F.R. pt. 404, subpt. P, app. 2, the ALJ found that there are jobs 10 that exist in significant numbers in the national economy that [Plaintiff] can 11 perform. (AR at 17-18 (emphasis omitted).) Thus, the ALJ concluded that Plaintiff 12 was not suffering from a disability as defined by the Act. (Id. at 12, 18.) Plaintiff filed a timely request for review of the ALJ s decision, which was 13 14 denied by the Appeals Council. (AR at 1-3, 6.) The ALJ s decision stands as the 15 final decision of the Commissioner. 16 III. 17 STANDARD OF REVIEW This Court is empowered to review decisions by the Commissioner to deny 18 19 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 20 Administration must be upheld if they are free of legal error and supported by 21 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as 22 23 24 1/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 2/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n. 5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s 27 residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n. 2 (9th 28 Cir. 2007). 3 1 amended Dec. 21, 2001). If the court, however, determines that the ALJ s findings 2 are based on legal error or are not supported by substantial evidence in the record, 3 the court may reject the findings and set aside the decision to deny benefits. 4 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 5 242 F.3d 1144, 1147 (9th Cir. 2001). 6 Substantial evidence is more than a mere scintilla, but less than a 7 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 8 evidence which a reasonable person might accept as adequate to support a 9 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 10 at 459. To determine whether substantial evidence supports the ALJ s finding, the 11 reviewing court must review the administrative record as a whole, weighing both 12 the evidence that supports and the evidence that detracts from the ALJ s 13 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 14 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 15 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 16 evidence can reasonably support either affirming or reversing the ALJ s decision, 17 the reviewing court may not substitute its judgment for that of the ALJ. Id. 18 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 19 IV. 20 ISSUES PRESENTED 21 Five disputed issues are presented for decision here: 22 1. whether the ALJ properly evaluated the non-examining state agency 23 physician s opinion, (Joint Stip. at 3-6, 8-9); 24 2. whether the ALJ properly evaluated Plaintiff s RFC, (id. at 9-11, 12- 3. whether the ALJ failed to fully and fairly develop the record, (id. at 13- 25 13); 26 27 15, 17-18); 28 4. whether the ALJ properly evaluated Plaintiff s credibility, (id. at 18-23, 4 1 26); and 2 5. whether the ALJ erred in failing to obtain vocational expert testimony. 3 (Id. at 26-28, 29-30.) 4 Under the circumstances here, the Court finds the issue of the ALJ s failure to 5 fully and fairly develop the record to be dispositive of this matter, and does not reach 6 the remaining issues. 7 V. 8 DISCUSSION AND ANALYSIS 9 Plaintiff argues that the ALJ erred in rejecting the opinions of two 10 consultative examiners on the basis that the evaluations were too close to plaintiff s 11 incident and therefore do not reflect his current condition. However, the ALJ can 12 only guess what the plaintiff s current condition is without obtaining further 13 examinations. (Joint Stip. at 14-15.) Plaintiff contends that [c]onsequently, this 14 prevented the ALJ from rendering a fair and accurate assessment of the Plaintiff s 15 mental functional limitations. (Id. at 15.) 16 A. The ALJ s Duty to Fully and Fairly Develop the Record 17 The ALJ has an affirmative duty to fully and fairly develop the record and to 18 assure that the claimant s interests are considered . . . even when the claimant is 19 represented by counsel. Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) 20 (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)) (ellipsis in original); 21 see Tonapetyan, 242 F.3d at 1150. In cases of mental impairments, the ALJ s 22 duty to clarify and develop the record is especially important. DeLorme v. 23 Sullivan, 924 F.2d 841, 849 (9th Cir. 1991); see also Tonapetyan, 242 F.3d at 1150 24 ( The ALJ s duty to develop the record fully is . . . heightened where the claimant 25 may be mentally ill and thus unable to protect her own interests. ). 26 If the evidence is ambiguous or inadequate to permit a proper evaluation of a 27 claimant s impairments, the ALJ has a duty to conduct an appropriate inquiry[.] 28 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); accord Tonapetyan, 242 F.3d 5 1 at 1150; Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) ( [t]he ALJ s duty to 2 supplement a claimant s record is triggered by ambiguous evidence [or] the ALJ s 3 own finding that the record is inadequate ). The ALJ may discharge this duty in 4 several ways, including: (1) subpoenaing the claimant s physicians; (2) submitting 5 questions to the claimant s physicians; (3) continuing the hearing; or (4) keeping the 6 record open after the hearing to allow supplementation of the record. Tonapetyan, 7 242 F.3d at 1150. 8 B. Evidence of Plaintiff s Limitations 9 On May 30, 2006, Plaintiff was treated by the emergency room at Henry 10 Mayo Newhall Memorial Hospital ( Henry Mayo Hospital ) after he was found by 11 roommates lying on the floor, very confused and combative. (AR at 140-41.) 12 Treating physicians initially diagnosed Plaintiff with left cerebral basal gangliar 13 hemorrhage, hypertension, and methamphetamine use. (Id. at 142.) 14 On June 19, 2006, a treating physician at Henry Mayo Hospital noted that 15 Plaintiff has a history of hypertension and diabetes. (AR at 159.) The physician 16 also explained that Plaintiff s May 30, 2006 admittance was due to intracranial 17 bleed and diagnosed that Plaintiff had suffered from an intracranial hemorrhage. 18 (Id. at 159-60.) 19 On November 15, 2006, examining psychologist Kim Goldman, Psy.D. ( Dr. 20 Goldman ) performed a complete psychological evaluation of Plaintiff. (AR at 50121 05.) Dr. Goldman reported that Plaintiff was hospitalized from May 30 through 22 July 18 in a medical hospital and at a rehabilitation hospital Rancho Los Amigos 23 from July 18 through August 12 of 2006. (Id. at 502.) Dr. Goldman indicated that 24 Plaintiff had a brain shunt put in at the age of 30. (Id.) 25 After conducting a mental status examination and administering a series of 26 tests, including the Wechsler Adult Intelligence Scale III, the Wechsler Memory 27 Scale III, the Trail Making Test Parts A and B, and the Bender-Gestalt Test II, 28 Dr. Goldman diagnosed Plaintiff with amphetamine dependence in early full 6 1 remission, cognitive disorder, not otherwise specified, and personality disorder, not 2 otherwise specified. (AR at 502-04.) Dr. Goldman noted that Plaintiff s 3 performance IQ is relatively depressed indicating the likely presence of a cognitive 4 disorder. (Id. at 504.) 5 Dr. Goldman found that Plaintiff would have [m]ild difficulties of 6 concentration, persistence and the ability to work at a pace appropriate for his age 7 and [h]is ability to understand, carry out and remember detailed instructions and 8 complex tasks is markedly impaired due to auditory memory deficits[, h]is ability to 9 respond appropriately to coworker, supervisors and the public is moderately 10 impaired due to auditory memory deficits[, and h]is ability to respond appropriately 11 to usual work situations and deal with changes in a routine work setting is mildly to 12 moderately impaired due to auditory memory deficits. (AR at 504-05.) 13 On November 28, 2006, examining neurologist and psychiatrist John S. 14 Woodard, M.D. ( Dr. Woodard ) completed a neurologic evaluation of Plaintiff. 15 (AR at 524-26.) Dr. Woodard stated that Plaintiff has made a fairly good recovery 16 except for persistent cognitive impairment. (Id. at 524.) 17 Dr. Woodard also noted that Plaintiff is extremely forgetful to the extent that 18 he repeats questions and he has great difficulty in learning new material or recalling 19 simple instructions. (AR at 524.) Dr. Woodard conducted a mental status 20 examination and concluded that [h]e is able to speak quite normally when 21 responding to a question but there is no spontaneous speech and there is a notable 22 lack of expression. (Id. at 525.) Dr. Woodard reported that [t]here is some 23 persistent masking of facial expression as well as general immobility. (Id.) 24 Dr. Woodard diagnosed Plaintiff with intracerebral hemorrhage with cognitive 25 impairment and determined that he has marked cognitive impairment with general 26 inertia, attention deficit, disengagement and impaired capacity for learning new 27 information. (AR at 526.) 28 7 1 C. The ALJ s Assessment of Plaintiff s Limitations 2 In assessing the severity of Plaintiff s impairments and his RFC, the ALJ 3 rejected Dr. Goldman s opinion because Plaintiff s testimony that he is currently 4 able to successfully pursue a course preparing him for auto smog certification and 5 work, without concern, in the proximity of moving machinery when in auto shop 6 indicates that his psychological condition has vastly improved since Dr. Goldman s 7 examination several years ago. (AR at 15.) 8 With respect to Dr. Woodard, the ALJ similarly rejected his opinion stating, 9 Plaintiff testified at the hearing that he was attending classes in English, 10 mathematics, as well as auto smog technician certification. Obviously [his] 11 cognitive deficits have improved considerably. (AR at 16.) 12 The ALJ concluded that the examinations of Dr. Goldman and Dr. Woodard 13 were performed much too close to the incident and do not at all reflect [Plaintiff s] 14 current condition. (AR at 16.) The ALJ based his conclusion on the March 13, 15 2007 opinions of Kevin Gregg, M.D. [( Dr. Gregg )], and J. Hartman, M.D. [( Dr. 16 Hartman )], State Agency consultants, [who] stated that [Plaintiff] did not allege any 17 worsening of his condition[.] (Id.) 18 Accordingly, the ALJ found that Plaintiff s severe physical and mental 19 impairments resulting from [his intracranial hemorrhage] in May 2006, never 20 resulted in any impairments lasting for a 12 month period, and never for such a 21 period deprived [Plaintiff] the [RFC] for medium work activity[.] (AR at 16.) 22 D. The ALJ Failed to Fully and Fairly Develop the Record 23 Having carefully reviewed the record and the parties papers, the Court is 24 persuaded that the ALJ failed to fully and fairly develop the record and his decision 25 is not supported by substantial evidence. Three reasons guide this Court s 26 determination. 27 First, the ALJ s rejection of both Dr. Goldman and Dr. Woodard s opinions 28 based on Plaintiff s testimony regarding his activities of daily living is not supported 8 1 by substantial evidence. In rejecting the examining physicians opinions, the ALJ 2 described Plaintiff s testimony that he is currently able to successfully pursue a 3 course preparing him for auto smog certification and work, without concern, in the 4 proximity of moving machinery when in auto shop and was attending classes in 5 English, mathematics[.] (AR at 15, 16.) 6 However, at the hearing, Plaintiff testified that he is in the Disabled Students 7 Programs and Services, which permits him double time to take a test. (AR at 27.) 8 Plaintiff further explained that during the past semester, he was taking math and 9 English, but he failed English. (See id. at 27-29.) He stated that this time, he was 10 repeating the English course that [he] failed, and taking math, but he ended up 11 dropping the Math class because he had difficulty handling the course load. (Id.) 12 Further, Plaintiff testified that his automative/smog class is a class to, to 13 learn how to do smogs on cars and is both a classroom course and a lab course. 14 (AR at 30, 39.) Plaintiff elaborated that he was having difficulty in the class, so the 15 disabled students program office provided him with a tape recorder so that he can 16 record the class and listen to the lecture three times[.] (Id.) Contrary to the 17 ALJ s description, Plaintiff did not specify whether, during the lab portion of his 18 smog course, he is in the proximity of moving machinery [without concern]. (See 19 generally id. at 21-41.) 20 Accordingly, the Court finds that the ALJ s paraphrasing of Plaintiff s daily 21 activities is not entirely accurate. See Reddick, 157 F.3d at 722-23 ( [T]he ALJ 22 developed his evidentiary basis by not fully accounting for the context of materials 23 or all parts of the testimony and reports. His paraphrasing of record material is not 24 entirely accurate regarding the content or tone of the record. ); see also Holohan v. 25 Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) ( [The treating physician s] 26 statements must be read in context of the overall diagnostic picture he draws. That a 27 person who suffers from severe panic attacks, anxiety, and depression makes some 28 improvement does not mean that the person s impairments no longer seriously affect 9 1 her ability to function in a workplace. ). 2 Second, the ALJ failed to cite to any more recent examining or treating 3 opinion in support of his rejection of Drs. Woodard and Goldman s opinions. While 4 Defendant maintains that the ALJ s assessment was consistent with the opinions 5 of D. J. Williams, M.D. ( Dr. Williams ) and Dr. Gregg, non-examining and 6 reviewing physicians opinions, standing alone, are insufficient to constitute 7 substantial evidence. (Joint Stip. at 17; see AR at 506-19, 534); Erickson v. Shalala, 8 9 F.3d 813, 818 n. 7 (9th Cir. 1993) ( the non-examining physicians conclusion, 9 with nothing more, does not constitute substantial evidence[] ) (internal quotation 10 marks, brackets and citation omitted) (italics in original); Gallant v. Heckler, 753 11 F.2d 1450, 1454 (9th Cir. 1984) (when the non-treating, non-examining physician s 12 opinion conflicts with the conclusions of examining physicians, that conclusion does 13 not constitute substantial evidence). 14 Moreover, Defendant s assertion is not well taken given that the ALJ gave 15 Dr. Williams opinion less weight and rejected his RFC assessment, and Dr. Gregg 16 did not provide any opinion as to Plaintiff s limitations. (AR at 16, 517-19, 534.) 17 Dr. Gregg merely recommended affirming the denial of Plaintiff s request for 18 benefits at the reconsideration stage, where it was also noted that Plaintiff had not 19 alleged or provided evidence of any worsening of his conditions. (See id. at 534.) 20 In short, it appears that the ALJ has, in effect, improperly substituted his own 21 interpretation of the evidence without setting forth sufficient authority or medical 22 evidence to support his interpretation. See Tackett v. Apfel, 180 F.3d 1094, 1102-03 23 (9th Cir. 1999) (ALJ may not substitute his own interpretation of the medical 24 evidence for the opinion of medical professionals); Banks v. Barnhart, 434 F. Supp. 25 2d 800, 805 (C.D. Cal. 2006) ( An ALJ cannot arbitrarily substitute his own 26 judgment for competent medical opinion, and he must not succumb to the temptation 27 to play doctor and make his own independent medical findings. ) (internal quotation 28 marks, alterations and citations omitted). 10 1 Third, the fact that Plaintiff did not allege any worsening of his condition, 2 (AR at 16), does not relieve the ALJ of his duty to develop the record. In light of the 3 fact that the ALJ did not rely on the opinion of any other treating or examining 4 physician in concluding Plaintiff is capable of medium work and he found Dr. 5 Goldman and Dr. Woodard s opinions were inadequate or too outdated to shed light 6 on Plaintiff s limitations, the ALJ should have developed the record. The ALJ did 7 not seek an updated consultative examination regarding Plaintiff s impairments, nor 8 did he keep the record open and request Plaintiff to submit more recent treatment 9 records. (See generally AR at 21-41); see also Higbee v. Sullivan, 975 F.2d 558, 10 561 (9th Cir. 1992, as amended Sept. 17, 1992) (per curiam) (Although it is 11 plaintiff s burden to provide sufficient evidence of entitlement of benefits, it has 12 long [been] recognized that the ALJ is not a mere umpire at [an administrative 13 hearing], but has an independent duty to fully develop the record[.] ). Accordingly, 14 under the circumstances of this case, the Court concludes that the ALJ did not satisfy 15 his independent duty to fully and fairly develop the record and the Court cannot find 16 his error to be harmless. 17 VI. 18 REMAND IS APPROPRIATE 19 This Court has discretion to remand or reverse and award benefits. McAllister 20 v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989, as amended Oct. 19, 1989). Where no 21 useful purpose would be served by further proceedings, or where the record has been 22 fully developed, it is appropriate to exercise this discretion to direct an immediate 23 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); 24 Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000, as amended May 4, 2000), 25 cert. denied, 531 U.S. 1038 (2000). Where there are outstanding issues that must be 26 resolved before a determination can be made, and it is not clear from the record that 27 the ALJ would be required to find plaintiff disabled if all the evidence were properly 28 evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 11 1 F.3d at 1179-80. 2 Here, remand is required because the ALJ failed to fully and fairly develop the 3 record. 4 Because the Court concludes that the ALJ failed to fully and fairly develop the 5 record, it does not reach Plaintiff s remaining contentions. (See Joint Stip. at 3-6, 86 13, 18-23, 26-28, 29-30.) Credibility findings are reviewed in light of the record as 7 a whole, which in the instant case should properly include updated medical records 8 regarding Plaintiff s limitations. See Struck v. Astrue, 247 Fed.Appx. 84, 86-87 (9th 9 Cir. 2007). Accordingly, on remand, the ALJ must reconsider Plaintiff s credibility 10 and reassess Plaintiff s RFC. In addition, the ALJ shall obtain additional 11 information and clarification regarding Plaintiff s functional limitations. The ALJ 12 shall reassess the medical opinions in the record and provide sufficient reasons under 13 the applicable legal standard for rejecting any portion of the medical opinions. 14 Finally, the ALJ shall, at step five, with the assistance of a vocational expert, 15 determine whether Plaintiff can perform work existing in significant numbers in the 16 regional and national economies. 17 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 18 REVERSING the decision of the Commissioner denying benefits and 19 REMANDING the matter for further administrative action consistent with this 20 decision. 21 22 Dated: March 10, 2011 23 ______________________________ Hon. Jay C. Gandhi United States Magistrate Judge 24 25 26 27 28 12
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