Marlon E. Rojas v. Michael J. Astrue, No. 5:2009cv01971 - Document 16 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. This matter will be remanded for further hearing consistent with this Memorandum Opinion. (rp)
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Marlon E. Rojas v. Michael J. Astrue Doc. 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 MARLON E. ROJAS, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 09-01971-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 Dockets.Justia.com 1 step 2 legally severe is based on a proper evaluation of evidence 3 from treating, consulting, and non-examining sources; 4 2. two Whether that the Plaintiff’s ALJ’s finding mental that impairments Plaintiff’s are not prescribed 5 medications do not impose any functionally limiting side 6 effects 7 physician 8 Plaintiff’s subjective complaints. 9 is based on evidence, a proper medical evaluation expert of treating testimony, and (JS at 7.) 10 11 This Memorandum Opinion will constitute the Court’s findings of 12 fact and conclusions of law. 13 concludes 14 Commissioner must be reversed. that for the After reviewing the matter, the Court reasons set forth, the decision of the 15 16 I 17 THE STEP TWO FINDING THAT PLAINTIFF DOES NOT HAVE A SEVERE 18 MENTAL IMPAIRMENT IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE 19 In the ALJ’s decision (AR 10-22), he concludes that the Plaintiff 20 21 does not have a severe mental impairment: “The [Plaintiff’s] medically determinable mental 22 impairments of an adjustment disorder and organic brain 23 damage (due to a traumatic head injury) do not cause more 24 than minimal limitation in the [Plaintiff’s] ability to 25 perform basic mental work activities and are therefore 26 nonsevere.” (AR 14.) 27 28 Plaintiff challenges the adequacy 2 of this determination. 1 Plaintiff primarily 2 psychological evaluation (“CE”) of November 21, 2006 performed by Dr. 3 Colonna, at the request of the Department of Social Services (See AR 4 at 405-10), along with the Psychiatric Review Technique (“PRT”) 5 conclusions 6 particular, the conclusions of the State Agency psychiatrist that 7 Plaintiff has moderate limitations in maintaining concentration, 8 persistence or pace. (AR 508.) of the relies State upon Agency the consultative psychiatrist (AR complete 497-510), in 9 10 A. 11 In evaluating mental impairments, 20 C.F.R. §404.1520a(c)(3)(4) 12 and §416.920a(c)(3)(4) mandate that consideration be given, among 13 other 14 functioning; concentration, persistence, or pace; and episodes of 15 decompensation. These factors are generally analyzed in a Psychiatric 16 Review Technique Form (“PRTF”). 17 sequential evaluation to determine if a claimant is disabled under the 18 Listing of Impairments; however, the same data must be considered at 19 subsequent steps unless the mental impairment is found to be not 20 severe at Step Two. 21 Applicable Law. things, 20 C.F.R. to activities of daily living (“ADLs”), social The PRTF is used at Step Three of the See SSR 85-16. §§404.1520a(c)(1) and 416.920a(c)(1) require 22 consideration of “all relevant and available clinical signs and 23 laboratory findings, the effects of your symptoms, and how your 24 functioning may be affected by factors including, but not limited to, 25 chronic mental disorders, structured settings, medication and other 26 27 28 3 1 2 treatment.”1 SSR 85-16 suggests the following as relevant evidence: 3 “History, findings, and observations from medical 4 sources (including psychological test results), regarding 5 the presence, frequency, and intensity of hallucinations, 6 delusions or paranoid tendencies; depression or elation; 7 confusion or disorientation; conversion symptoms or phobias; 8 psycho-physiological 9 behavior; anxiety or tension. symptoms, withdrawn or bizarre Reports of the individual’s 10 activities of daily living and work activity, as well as 11 testimony 12 performance and behavior. 13 homes, or similar assistive entities.” of third parties about the individual’s Reports from workshops, group 14 15 It is also required under §404.1520a(c)(2) and §416.920a(c)(2) 16 that the ALJ must consider the extent to which the mental impairment 17 interferes with an “ability to function independently, appropriately, 18 effectively, and on a sustained basis” including “such factors as the 19 quality and level of [] overall functional performance, any episodic 20 limitations 21 require[d].” [and] the amount of supervision or assistance [] 22 Pursuant to the September 2000 amendments to the regulations 23 which modify 20 C.F.R. §404.1520a(e)(2) and §416.920a(e)(2), the ALJ 24 25 26 27 28 1 20 C.F.R. §404.1545(c) and §416.945(c) also require consideration of “residual functional capacity for work activity on a regular and continuing basis” and a “limited ability to carry out certain mental activities, such as limitations in understanding, remembering, and carrying out instructions, and in responding appropriately to supervision, co-workers, and work pressures in a work setting.” 4 1 is no longer required to complete and attach a PRTF. 2 regulations identify five discrete categories for the first three of 3 four relevant functional areas: activities of daily living; social 4 functioning; concentration, persistence or pace; and episodes of 5 decomposition. These categories are None, Mild, Moderate, Marked, and 6 Extreme. (§404.1520a(c)(3), (4).) In the decision, the ALJ must 7 incorporate pertinent findings and conclusions based on the PRTF 8 technique. §404.1520a(e)(2) mandates that the ALJ’s decision must show 9 “the significant history, including examination The revised and laboratory 10 findings, and the functional limitations that were considered in 11 reaching a conclusion about the severity of the mental impairment(s). 12 The decision must include a specific finding as to the degree of 13 limitation in each of the functional areas described in paragraph (c) 14 of this section.” 15 The Step Two and Three analyses (see Decision at AR 53-54) are 16 intended to determine, first, whether a claimant has a severe mental 17 impairment (Step Two), and if so, whether it meets or equals any of 18 the Listings (Step Three). It is also required under §404.1520a(c)(2) 19 and §416.920a(c)(2) that the ALJ must consider the extent to which the 20 mental 21 independently, appropriately, effectively, and on a sustained basis” 22 including “such factors as the quality and level of [] overall 23 functional performance, any episodic limitations [and] the amount of 24 supervision or assistance [] require[d].” impairment interferes with an “ability to function 25 These findings and conclusions are relevant to the Step Two and 26 Three analysis of whether a claimant has a severe mental impairment, 27 and if so, whether it meets or equals any of the Listings. (See 20 28 C.F.R. Part 4, subpart p, App. 1.) 5 The discussion in Listing 12.00, 1 “Mental Disorders,” is relevant: 2 “The criteria in paragraphs functional B and limitations C describe 3 impairment-related that are 4 incompatible with the ability to do any gainful activity. 5 The functional limitations in paragraphs B and C must be the 6 result of the mental disorders described in the diagnostic 7 description, that is manifested by the medical findings in 8 paragraph A. 9 In Listing 12.00C, entitled ‘Assessment of Severity,’ 10 it is stated that, ‘we assess functional limitations using 11 the four criteria in paragraph B of the Listings: Activities 12 of 13 persistence, or pace; and episodes of decompensation. Where 14 we use ‘marked’ as a standard for measuring the degree of 15 limitation, it means more than moderate but less than 16 extreme.” daily living; social functioning; concentration; 17 18 Social Security Ruling (“SSR”) 96-8p makes the same point in 19 distinguishing evidence supporting a rating of mental severity at Step 20 Two, a Listing level impairment at Step Three, and the determination 21 of an individual’s MRFC at Step Four. 22 23 B. Analysis. 24 Both the ALJ, and the Commissioner in this litigation, rely upon 25 the reports of Dr. Colonna, the CE, to substantiate the conclusion 26 that Plaintiff does not have severe mental impairments. Indeed, the 27 ALJ that, 28 [Plaintiff] is not significantly limited by any mental illness, interpreted Dr. Colonna’s report 6 as indicating “The 1 consistent with her detailed clinical findings and the objective test 2 results.” (AR at 15, citing Dr. Colonna’s report [erroneously referred 3 to as Exhibit [“Ex.”] 12F], and Social Security Ruling [“SSR”] 96-2p.) 4 The ALJ concluded that Plaintiff’s mental impairments are considered 5 not severe because they “cause no more than ‘mild’ limitation in any 6 of the first three functional areas ...” (Id.) 7 The ALJ acknowledged the findings of the State Agency 8 psychiatrist, who concluded, based upon utilization of the PRT, that 9 Plaintiff has moderate restrictions in concentration. (Id.) The ALJ 10 discounted this finding, instead giving “significant weight” to Dr. 11 Colonna’s assessments because they were more “consistent with the 12 medical 13 psychiatrist’s assessment of moderate restrictions on one area of 14 functioning, this was discounted because it was “not well established, 15 in light of the detailed exam findings and the psychological test 16 results 17 Presumably, the exam findings refer to those of Dr. Colonna, as do the 18 psychological 19 evaluation” is also presumably based upon Dr. Colonna’s report. and other and the evidence.” claimant’s test results, (Id.) presentation and As to upon “claimant’s the State evaluation.” Agency (Id.) presentation upon 20 The ALJ’s conclusions fail to meet the substantial evidence test 21 because Dr. Colonna’s report cannot be read as consistent with a 22 conclusion that Plaintiff has only “mild” limitations in the relevant 23 mental 24 functioning; and concentration, persistence or pace as set forth in 20 25 C.F.R. §404.1520a(c)(4). 26 a 27 limitations 28 substantiate a finding of a non-severe impairment. functional conclusion in that the areas an of activities of daily living; social As indicated in 20 C.F.R. §404.1520a(d)(1), individual first three has either functional 7 “none” areas will or “mild” generally Very clearly, 1 however, Dr. Colonna’s report does not substantiate such conclusions. 2 Essentially, the conclusions drawn by Dr. Colonna in the “Prognostic 3 Impressions and Medical Source Statement” area of her report are not 4 readily 5 regulations. 6 concentration, persistence or pace, Dr. Colonna offers her conclusion 7 that Plaintiff would be able to “understand, remember and carry out 8 short, simplistic instructions without difficulty,” and that he has 9 “mild translatable into the precise findings required by the For example, as to the evaluation of Plaintiff’s inability to understand, remember and carry out detailed 10 instructions. He would be able to make simplistic work-related 11 decisions 12 translates into only a “mild” limitation in Plaintiff’s concentration, 13 persistence 14 Similarly, in the area of social functioning, Dr. Colonna concludes 15 that Plaintiff is “socially appropriate with the examiner and he 16 presents with the ability to interact appropriately with supervisors, 17 coworkers and peers.” (AR 409.) 18 conclude that this translates into only a “mild” deficiency in social 19 functioning. 20 appropriate, 21 terminology required by the regulations. Finally, as to activities of 22 daily living, there is no finding in Dr. Colonna’s report. 23 noted that Plaintiff “reported that he had difficulty interacting with 24 others and needs assistance with his daily activities of living,” (AR 25 13, citing Plaintiff’s Disability Report - Adult, dated April 18, 26 2007. (AR 162-70.) 27 Plaintiff’s activities of daily living, Plaintiff reported that he is 28 “unable to care for my personal needs.” (AR 19, citing Plaintiff’s without or special pace cannot supervision.” be divined Whether from these this in fact descriptions. Again, one cannot immediately These ratings are specific, and should be made by an qualified medical professional utilizing the exact The ALJ The ALJ further noted that with respect to 8 1 Disability Report - Appeals, dated February 6, 2008 [AR 217-22].) 2 Plaintiff’s credibility with respect to these assertions is rejected 3 by the ALJ who found that “there is no objective medical basis for the 4 wholesale limitations he has alleged.” (AR 19.) 5 that Plaintiff’s anxiety and depression concerning his seizures have 6 been consistently reported by him to medical professionals. 7 example, he received a Disability Neurological Evaluation from Dr. 8 Gluckman on 9 home because he is afraid of having a seizure.” (AR 579.) But, the Court notes For May 7, 2009 (AR 579-87), and reported that he “stays at Dr. 10 Gluckman diagnosed anxiety disorder secondary to seizures. (AR 586.) 11 It appears that there is a medical basis for Plaintiff’s anxiety in 12 that his medications to control seizures have not been properly 13 balanced since he received his cranial injury from being hit by a 14 baseball bat. (See Dr. Gluckman’s conclusions at AR 587.) 15 Gluckman noted, per Plaintiff’s father’s history, Plaintiff’s anti- 16 seizure medications “cause him, at times, to appear drunk ...” (AR 17 586.) 18 an individual’s limitations with regard to his activities of daily 19 living, 20 evaluated with regard to an assessment of an individual’s mental 21 impairments. As Dr. All in all, this evidence is quite relevant to an assessment of one of the functional areas which must be mandatorily 22 Finally, the Court is not satisfied with the ALJ’s rejection of 23 the findings of the State Agency psychiatrist performed pursuant to 24 the 25 involving 26 persistence; social interaction; and adaptation. (See AR at 497-98.) 27 If the ALJ depreciated the findings of the State Agency psychiatrist 28 based upon the reports of Dr. Colonna, such a finding is not based PRT, which indicate understanding moderate and limitations memory; 9 sustained in certain areas concentration and 1 upon substantial evidence, for the reasons the Court has discussed. 2 For the foregoing reasons, the Court concludes that the ALJ’s 3 finding of non-severe mental impairment at Step Two of the sequential 4 evaluation process is not supported by substantial evidence, and must 5 be reviewed de novo on remand. 6 Similarly, as to Plaintiff’s second issue, concerning side 7 effects of medications, this will be reexamined de novo on remand. 8 The Court does not agree with the Commissioner that side effects of 9 medications have been objectively undocumented in the record. As the 10 Court has noted with regard to its discussion of the first issue, it 11 is clear from the medical records that Plaintiff’s anti-seizure 12 medications have been adjusted and readjusted on numerous occasions, 13 apparently 14 seizures, and/or side effects from them. 15 Gluckman that, sometimes, Plaintiff appears to be “drunk” from these 16 medications. 17 headaches which may well be attributed to the medications. 18 conclusion that Plaintiff has been noncompliant with medication was 19 apparently based upon the testimony of the ME at the hearing, however, 20 on cross-examination by Plaintiff’s attorney, the ME conceded that 21 based on the metabolism of certain individuals, and other factors, 22 there may be a fluctuation in medication levels which “may not be the 23 patient’s fault per se.” (AR 39.) 24 drugs 25 Dilantin.” (AR 44.) 26 people’s ability to remember things.” (AR 40.) 27 believed that notations in the medical records that Plaintiff was 28 taking 400 mg twice a day of Topamax must be incorrect (characterized due to their Plaintiff Plaintiff takes, inability asserted Topamax, to that consistently control his Plaintiff father told Dr. he suffers from frequent The ALJ’s The ME testified that one of the “does impair thinking unlike He also testified that “Topamax can cloud 10 Although the ME 1 by him as “a ‘typo’”) the Court is not necessarily convinced that it 2 is the case, or in any event, it may be the case that even lesser 3 doses of Topamax may cause such side effects. 4 therefore, that there is no objective evidence to support the side 5 effects of which Plaintiff complains, is highly problematic. 6 the credibility assessment, which would include side effects of 7 medications, the finding that Plaintiff was noncompliant with his 8 medications is simply not substantiated by the record presented to the 9 Court. The ALJ’s conclusion, Basing Further, the issue is not solely whether side effects from 10 medication disable Plaintiff from employment. 11 is also whether, if such side effects exist, they substantiate non- 12 exertional 13 residual functional capacity. Side effects of medication need not be 14 totally disabling to be relevant in the Social Security evaluation 15 process. 16 17 18 limitations relevant to an Instead, the question assessment of Plaintiff’s This matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 19 20 21 DATED: September 13, 2010 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 11
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