Christina Palos v. Michael J Astrue, No. 5:2009cv02182 - Document 20 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. (mz)
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Christina Palos v. Michael J Astrue Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 CHRISTINA PALOS, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 09-02182-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on December 3, 2009, seeking review of 19 the denial by the Social Security Commissioner ( Commissioner ) of 20 plaintiff s application for a period of disability and disability 21 insurance benefits ( DIB ). 22 to proceed before the undersigned United States Magistrate Judge, 23 pursuant to 28 U.S.C. § 636(c). 24 on August 3, 2010, in which: 25 Commissioner s decision and remanding this case for the payment of 26 benefits or, alternatively, for further administrative proceedings; and 27 defendant requests that the Commissioner s decision be affirmed. 28 Court has taken the parties Joint Stipulation under submission without On January 6, 2010, the parties consented The parties filed a Joint Stipulation plaintiff seeks an order reversing the The Dockets.Justia.com 1 oral argument. 2 3 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 4 5 Plaintiff applied for a period of disability and DIB. 6 (Administrative Record ( A.R. ) 129-31.) 7 disabled since September 21, 2003, due to bipolar disorder, attention 8 deficit disorder ( ADD ), anxiety, nervousness, depression, poor sleep, 9 mood swings, nausea, dizziness, Plaintiff claims to have been shakiness, and an inability to 10 concentrate. (See, e.g., A.R. 46, 56-57, 68, 71-72, 137, 168, 172, 193, 11 196.) 12 mood disorder. 13 Plaintiff has past relevant work experience as a nurse assistant and 14 emergency room clerk.1 Plaintiff later alleged an inability to work due to affective (See, e.g., Joint Stipulation ( Joint Stip. ) at 2.) (A.R. 16.) 15 16 After the Commissioner denied plaintiff s claim initially and upon 17 reconsideration (A.R. 51-54, 57-61), plaintiff requested a hearing 18 (A.R. 62). 19 counsel, appeared and testified at a hearing before Administrative Law 20 Judge John Kays (the ALJ ). 21 Allison, medical expert Dr. Craig Rath (a psychologist), and plaintiff s 22 son Javier Palos also testified. 23 denied 24 subsequently denied plaintiff s request for review of the ALJ s decision 25 (A.R. 1-4). On March 19, 2009, plaintiff, who was represented by plaintiff s claim (A.R. 18-43.) (Id.) (A.R. Vocational expert Susan On September 2, 2009, the ALJ 8-17), and the Appeals Council That decision is now at issue in this action. 26 27 28 1 Although not discussed in the ALJ s decision, it appears that plaintiff also has past relevant work experience as a clerk and receptionist. (See, e.g., A.R. 138.) 2 1 SUMMARY OF ADMINISTRATIVE DECISION 2 3 The ALJ found that plaintiff has not engaged in substantial gainful 4 activity since February 21, 2003, the alleged onset date of plaintiff s 5 claimed disability. 6 the following severe impairments: 7 addiction disorder. 8 stopped her substance abuse, she would not have an impairment or 9 combination of impairments that meets or medically equals any of the 10 impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 11 C.F.R. § 404.1520(d)). (A.R. 10.) (Id.) The ALJ determined that plaintiff has bipolar disorder; and substance The ALJ also determined that if plaintiff (A.R. 11.) 12 13 The ALJ determined that, absent substance abuse, plaintiff would 14 have the residual functional capacity ( RFC ) to perform a full range 15 of work at all exertional levels but with the following nonexertional 16 limitations: 17 stress[ful] work, [being] in charge of [the] safety of others, working 18 with dangerous equipment, and socially interacting with the general 19 public. to avoid [having] more than [a] moderate degree of (A.R. 12.) 20 21 The ALJ concluded that plaintiff was unable to perform her past 22 relevant work. 23 education, work experience, and RFC, as well as the testimony of the 24 vocational expert, the ALJ found that significant jobs exist in the 25 national economy that plaintiff could perform, absent substance abuse, 26 including sales attendant, cafeteria attendant, and general office 27 clerk. 28 substance abuse was a contributing factor material to the determination (A.R. 15.) (A.R. 16-17.) However, having considered plaintiff s age, The ALJ further determined that plaintiff s 3 1 of disability, because plaintiff would not be disabled if she stopped 2 her substance abuse. 3 plaintiff was not disabled within the meaning of the Social Security Act 4 from the alleged onset date through the date of his decision. (A.R. 17.) Accordingly, the ALJ concluded that (Id.) 5 6 STANDARD OF REVIEW 7 8 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 9 decision to determine whether it is free from legal error and supported 10 by substantial evidence in the record as a whole. 11 F.3d 625, 630 (9th Cir. 2007). 12 evidence as a reasonable mind might accept as adequate to support a 13 conclusion. 14 a mere scintilla but not necessarily a preponderance. 15 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 16 record can constitute substantial evidence, only those reasonably drawn 17 from the record will suffice. 18 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. Widmark v. Barnhart, 454 F.3d 1063, 19 20 Although this Court cannot substitute its discretion for that of 21 the Commissioner, the Court nonetheless must review the record as a 22 whole, weighing both the evidence that supports and the evidence that 23 detracts from the [Commissioner s] conclusion. 24 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 25 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 26 responsible for determining credibility, resolving conflicts in medical 27 testimony, and for resolving ambiguities. 28 1035, 1039 (9th Cir. 1995). 4 Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 1 The Court will uphold the Commissioner s decision when the evidence 2 is susceptible to more than one rational interpretation. 3 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 4 review only the reasons stated by the ALJ in his decision and may not 5 affirm the ALJ on a ground upon which he did not rely. 6 at 630; see also Connett, 340 F.3d at 874. 7 the Commissioner s decision if it is based on harmless error, which 8 exists only when it is clear from the record that an ALJ s error was 9 inconsequential to the ultimate nondisability determination. Robbins 10 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 11 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 12 at 679. Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse 13 14 DISCUSSION 15 16 Plaintiff makes the following claims: (1) the ALJ did not consider 17 the opinions of plaintiff s treating physicians properly; (2) the ALJ 18 did not consider the lay witness testimony and third party statement 19 properly; (3) the ALJ did not consider plaintiff s credibility properly; 20 and (4) the ALJ did not assess plaintiff s RFC properly.2 21 at 2-4.) 22 /// 23 /// 24 /// (Joint Stip. 25 26 27 28 2 Within her first claim, plaintiff also asserts that the ALJ failed to develop the record fully. (See Joint Stip. at 8-9.) For purposes of clarity, the Court will address this issue separately. Additionally, the Court will address plaintiff s second and fourth claims together. 5 1 2 I. The ALJ Failed To Develop The Record With Respect To Plaintiff s Drug Use. 3 4 An ALJ has a special duty to fully and fairly develop the record 5 and to assure that the claimant s interests are considered. 6 Heckler, 713 F.2d 441, 443 (9th Cir. 1983). Pursuant to 20 C.F.R. § 7 404.1512(e), additional 8 clarification from your medical source when the report from your medical 9 source contains a conflict or ambiguity that must be resolved, [or] the the Administration will seek Brown v. evidence or 10 report does not contain all the necessary information . . . . 11 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)(noting that 12 [a]mbiguous evidence . . . triggers the ALJ s duty to conduct an 13 appropriate inquiry ); Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 14 1996)(noting that [i]f the ALJ thought he needed to know the basis of 15 [the doctor s] opinions in order to evaluate them, he had a duty to 16 conduct an appropriate inquiry ). In cases of mental impairments, this 17 duty is especially important. 18 (9th Cir. 1991). See DeLorme v. Sullivan, 924 F.2d 841, 849 19 20 The ALJ erred by failing to develop the record regarding 21 plaintiff s drug use. 22 May 1, 2006, plaintiff was evaluated by both staff psychiatrist Dr. 23 Ellison Chang, M.D., and clinician Albert Fam, LCSW, at the Riverside 24 County Medical Center. (A.R. 283-90.) Dr. Chang noted plaintiff s past 25 methamphetamine 26 diagnosed plaintiff with, among other things, amphetamine abuse; and 27 referred plaintiff to the Corona Substance Abuse program. 28 Clinician Albert Fam also noted plaintiff s past drug use (A.R. 284) and use In pertinent part, the record reflects that, on and her current 6 cravings for methamphetamine; (A.R. 283.) 1 that she was not using alcohol and/or street drugs currently (A.R. 286). 2 On May 9, 2006, plaintiff was again treated by Dr. Chang and a reference 3 was made to command hallucinations and amph[etamines] eight months 4 ago.3 (A.R. 314.) 5 6 On June 10, 2006, Dr. Romualdo R. Rodriguez, M.D., an examining 7 physician, performed a complete psychiatric evaluation on plaintiff. 8 (A.R. 271-77.) 9 drugs and supposedly had last used illegal drugs approximately two years Dr. Rodriguez noted that plaintiff was not then using 10 ago.4 11 things, 12 remission. 13 some functional limitations, [f]rom a psychiatric point of view, as 14 long as [plaintiff] continues free of all illegal drugs and uses 15 psychiatric medications correctly, she can easily recover within twelve 16 months. (A.R. 273.) Dr. Rodriguez diagnosed plaintiff with, among other [p]olysubstance (A.R. 275.) dependence, supposedly in full sustained He further noted that, while plaintiff has (A.R. 276-77.) 17 18 After reviewing plaintiff s medical records, including Dr. Chang s 19 diagnosis 20 psychologist, implicitly noted the lack of clarity in Dr. Chang s 21 diagnosis of plaintiff, testifying that [i]t doesn t say dependence or of amphetamine abuse, medical expert Craig Rath, a 22 23 24 25 26 3 Although later treatment notes from Dr. Chang do not include a discussion of plaintiff s drug use, the majority include a check box reference to plaintiff s denial of current substance abuse/dependence. (See, e.g., A.R. 311 (June 20, 2006 -- deny); A.R. 310 (August 17, 2005 - deny); A.R. 308 (September 9, 2006 - deny); A.R. 307 (September 29, 2006 - deny); A.R. 305 (November 9, 2006 - deny); A.R. 304 (December 21, 2006 - deny); A.R. 303 (January 18, 2007 - deny); A.R. 302 (February 20, 2007 - deny); A.R. 301 (illegible date in 2007 - deny).) 27 4 28 At the 2009 hearing, plaintiff reported that it had been years since she last used methamphetamines. (A.R. 31.) 7 1 exactly what they mean or history of [amphetamine abuse]. 2 Curiously, and without explanation, upon seeing an identical copy of Dr. 3 Chang s diagnosis in a later exhibit, Dr. Rath unequivocally opined that 4 Dr. Chang s diagnosis of plaintiff s meth[amphetamine] abuse . . . 5 mean[t] current [abuse]. (A.R. 24.) Accordingly, Dr. Rath opined that 6 plaintiff was abusing methamphetamines until some date in [20]06. 7 (A.R. 24.) 8 does not meet a listing and has the functional capacity for no more 9 than a moderate degree of stress. 5 (A.R. 23.) Dr. Rath concluded that, absent substance abuse, plaintiff (A.R. 24-25.) Dr. Rath s opinion 10 was echoed in both the ALJ s RFC and his findings that, absent substance 11 abuse, plaintiff does not meet a listing and is not disabled. 12 13 The Court is not convinced, however, that substantial evidence 14 supports Dr. Rath s determination that plaintiff abused drugs until some 15 date in 2006. 16 supplemental briefs submitted by both parties, it is still entirely 17 unclear whether Dr. Chang s May 1, 2006 diagnosis of amphetamine abuse 18 referred to ongoing or prior substance abuse. 19 note only indicates that plaintiff had cravings for methamphetamine and 20 a 21 plaintiff to a substance abuse program, it is unclear whether he 22 referred plaintiff there to avoid a relapse or because of then current 23 methamphetamine use. 24 evaluation, to plaintiff s supposed two-year remission in her substance 25 abuse, and his note that plaintiff was not using drugs currently - history of After carefully reviewing the record as well as the methamphetamine abuse. Dr. Chang s treatment Although Dr. Chang referred Dr. Rodriguez s reference, in his June 10, 2006 26 27 28 5 Specifically, he opined that plaintiff should avoid being in charge of the safety operations of others, using dangerous equipment, and stressful situations with the general public. (A.R. 25.) 8 1 i.e., in June 2006 - further clouds the issue of whether substantial 2 evidence supports the ALJ s conclusion, based on Dr. Rath s opinion, 3 that plaintiff s substance abuse was ongoing in May 2006. 4 5 Without knowing when plaintiff stopped using drugs, Dr. Rath and, 6 more critically, the ALJ, who relied on Dr. Rath s opinion, could not 7 have properly assessed plaintiff s residual functional capacity or 8 determined whether plaintiff met a listing in the absence of drug abuse. 9 Further, the ALJ could not have evaluated properly, as required under 20 10 C.F.R. § 404.1535(b): 11 limitations would remain if plaintiff refrained from drug use; and (2) 12 whether 13 Accordingly, 14 plaintiff s 15 determination of disability. 16 view 17 significant role it plays in the ALJ s findings and ultimate disability 18 determination, 19 constitutes reversible error. of plaintiff s the drug the (1) which of plaintiff s physical and mental remaining ALJ could abuse ambiguity the is limitations not a have properly contributing be factor failure plaintiff s to develop disabling. determined material 20 C.F.R. § 404.1535(a). surrounding ALJ s would to the Therefore, in drug the whether use record and the further 20 21 22 II. The ALJ Failed To Consider The Opinions Of Plaintiff s Treating Physicians Properly. 23 24 It is the responsibility of the ALJ to resolve conflicts in medical 25 testimony and analyze evidence. 26 (9th Cir. 1989). 27 assessing a social security claim, [g]enerally, a treating physician s 28 opinion carries more weight than an examining physician s, and an Magallanes v. Bowen, 881 F.2d 747, 750 In the hierarchy of physician opinions considered in 9 1 examining physician s opinion carries more weight than a reviewing 2 physician s. 3 2001); 20 C.F.R. § 404.1527(d). The opinions of treating physicians are 4 entitled to the greatest weight, because the treating physician is hired 5 to 6 Magallanes, 881 F.2d at 751. 7 contradicted by another physician, it may be rejected only for clear 8 and convincing reasons. 9 1995)(as amended). cure and Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. has a better opportunity to observe the claimant. When a treating physician s opinion is not Lester v. Chater, 81 F.3d 821, 830 (9th Cir. When contradicted by another doctor, a treating 10 physician s opinion may only be rejected if the ALJ provides specific 11 and legitimate reasons supported by substantial evidence in the record. 12 Id. However, an ALJ need not discuss all evidence presented to [him]. 13 Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)(emphasis in 14 original); see also Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 15 2003)(noting that an ALJ need not discuss every piece of evidence). 16 ALJ must explain only why significant probative evidence has been 17 rejected. 18 omitted). An Vincent, 739 F.2d at 1395 (internal quotations and citation 19 20 A. Dr. Isreal 21 22 The ALJ erred by failing to discuss the opinion of plaintiff s 23 treating physician, Dr. Isreal. 24 bipolar disorder and attention deficit hyperactivity disorder (ADHD); 25 opined that plaintiff had mildly impaired memory and judgment; and noted 26 that plaintiff had evidence of depression, anxiety, decreased energy, 27 and manic syndrome. 28 not able to: (A.R. 416.) Dr. Isreal diagnosed plaintiff with Dr. Isreal noted that plaintiff was maintain a sustained level of concentration; sustain 10 1 repetitive tasks for an extended period; adapt to new or stressful 2 situations; interact appropriately with family, strangers, coworkers, or 3 supervisors; or complete a 40 hour work week without decompensating. 4 (Id.) 5 her medications and keeping appointments and that she was unable to 6 manage her own funds in her best interest.6 Dr. Isreal further noted that plaintiff needed assistance with (Id.) 7 8 While an ALJ need not discuss every piece of evidence, an ALJ must 9 explain why significant and probative evidence -- such as the opinion of 10 Dr. Isreal -- is rejected. 11 Dr. Isreal s opinion but also failed to give any reason for rejecting 12 Dr. Isreal s opinion. Here, the ALJ not only failed to discuss Accordingly, the ALJ committed error. 13 14 B. Dr. Chang 15 16 Absent further inquiry, the ALJ cannot properly assess, let alone 17 reject, the opinion of plaintiff s treating psychiatrist, Dr. Chang. In 18 his decision, the ALJ gives diminished weight to Dr. Chang s opinion, 19 because, among other things, his treatment notes do not even discuss 20 plaintiff s drug use. 21 opinion that is conclusory and brief, when there is ambiguity in the 22 record, authorities such as Smolen v. Chater, 80 F.3d 1273, 1288 (9th 23 Cir. 1996) and section 404.1512(e) of 20 C.F.R. suggest that . . . 24 further inquiry of the treating source(s) should precede a final 25 determination of whether the opinions are not adequately explained or (A.R. 15.) While an ALJ need not accept an 26 6 27 28 Although not cited by plaintiff, in a later treatment note, dated November 5, 2008, Dr. Israel noted, in pertinent part, that plaintiff s mood was depressed and anxious and that plaintiff was obese. (A.R. 399.) 11 1 supported. 2 2008). Estrada v. Astrue, 2008 WL 4643866, *2 (C.D. Cal. Oct. 20, 3 4 Moreover, and contrary to the ALJ s assertion, Dr. Chang did 5 discuss plaintiff s drug use. 6 ambiguity surrounding Dr. Chang s discussion of plaintiff s drug use 7 that should have triggered the ALJ s duty to recontact Dr. Chang and 8 develop the record further. 9 unclear whether Dr. Indeed, as discussed supra, it is the Critically, without further inquiry, it is Chang s treatment notes reflect his opinion 10 regarding plaintiff s limitations and restrictions in the absence or 11 presence of drugs. 12 necessary for the ALJ to consider the opinion of Dr. Chang properly.7 Accordingly, further development of the record is 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Additionally, it appears that the ALJ attempts to minimize Dr. Chang s later treatment notes by stating that they indicate plaintiff s condition is stable and/or well controlled. (A.R. 14.) A closer review of the record, however, reveals that plaintiff s condition was anything but stable and/or well controlled. (See, e.g., A.R. 312 (June 15, 2006 -- doing a lot better; situational and severe anxiety; o.k. mood; moderately low energy; severe daytime sleepiness; and improved OCD); A.R. 311 (July 20, 2006 -- doing worse; variable and irritable mood; severe daytime sleepiness; low concentration; severely low energy; moderate mind racing; moderate impulsivity; and decreased handwashing (OCD)); A.R. 310 (August 17, 2006 -- doing o.k.; situational anxiety; increased irritability; severely low energy; severe daytime sleepiness; improved cognition; low concentration; denial of mind racing, impulsivity, spending sprees, and bad decisions; decreased OCD); A.R. 309 (August 24, 2006 -- decreased energy; and increased daytime drowsiness); A.R. 308 (September 9, 2006 -- doing worse; increased dysphoric and irritable mood; increased crying; severely low energy; poor sleep; severe daytime sleepiness; moderate mind racing; deny impulsivity, spending sprees, and bad decisions); A.R. 307 (September 29, 2006 -- doing ok/better; slight anxiety; decreased irritable mood; moderately low energy; increased sleep; moderate daytime sleepiness; decreased mind racing); A.R. 305 (November 9, 2006 -- doing worse; increased dysphoric and irritable mood; severe generalized anxiety; low energy; decreased sleep; insomnia; severe daytime sleepiness; moderate mind racing; increased spending sprees; and OCD better); A.R. 304 (December 21, 2006 -- all kinds of stress ; severe generalized anxiety; o.k. mood; severely elevated energy; o.k. sleep; slight daytime sleepiness; slight mind racing; and denial of impulsivity and shopping sprees); A.R. 303 (January 18, 2007 new ADHD diagnosis; severe 12 1 2 III. The ALJ s Reasons For Rejecting Plaintiff s Credibility Are Neither Clear Nor Convincing. 3 4 Once a disability claimant produces objective evidence of an 5 underlying impairment that is reasonably likely to be the source of her 6 subjective symptom(s), all subjective testimony as to the severity of 7 the symptoms must be considered. 8 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 9 1991)(en banc); see also 20 C.F.R. § 404.1529(a) (explaining how pain Moisa v. Barnhart, 367 F.3d 882, 885 10 and other symptoms are evaluated). 11 malingering based on affirmative evidence thereof, he or she may only 12 find an applicant not credible by making specific findings as to 13 credibility 14 Robbins, 466 F.3d at 883. 15 claimant s credibility include: 16 truthfulness; (2) inconsistencies either in the claimant s testimony or 17 between the claimant s testimony and her conduct; (3) the claimant s 18 daily activities; (4) the claimant s work record; and (5) testimony from 19 physicians and third parties concerning the nature, severity, and effect 20 of the symptoms of which the claimant complains. 21 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 20 C.F.R. § and stating clear [U]nless an ALJ makes a finding of and convincing reasons for each." The factors to be considered in weighing a (1) the claimant s reputation for See Thomas v. 22 23 24 25 26 27 28 anxiety; irritable and angry mood; elevated energy; severe daytime sleepiness; mind racing and spending sprees; o.k. cognition; and low concentration); A.R. 302 (February 20, 2007 -- increased focus, multitasking, alertness, energy; concentration, and irritable mood); A.R. 301 (illegible date, 2007 -- doing better; increased anxiety; irritable mood; o.k. sleep; severe daytime sleepiness; and better concentration); A.R. 300 (May 8, 2007 -- apathetic and dysphoric mood; unhappy; poor sleep; decreased concentration; decreased impulsivity; and becomes overwhelmed and anxious); A.R. 418 (August 20, 2007 Adjustment Disorder and ADHD diagnosis; notation that plaintiff had cyclic presentation, not stabilized yet).) 13 1 404.1529(c). 2 3 An ALJ may not rely on a plaintiff s daily activities to support an 4 adverse credibility determination when those activities do not affect 5 the claimant s ability to perform appropriate work activities on an 6 ongoing and daily basis. Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th 7 Cir. 1990). 8 claimant s ability to work on a sustained basis. 9 (emphasis in original)(citing 20 C.F.R. § 404.1512(a)). A claimant need 10 not be utterly incapacitated to be eligible for benefits . . . and many 11 home activities are not easily transferable to what may be the more 12 grueling environment of the workplace, where it might be impossible to 13 periodically rest or take medication. Fair v. Bowen, 885 F.2d 597, 602 14 (9th Cir. 1989). As the Ninth Circuit noted in Lester, the ALJ must evaluate 81 F.3d at 833 15 16 The ALJ found that plaintiff s medically determinable impairments 17 could reasonably be expected to produce the alleged symptoms. 18 15.) 19 Accordingly, the ALJ s reason for rejecting plaintiff s credibility must 20 be clear and convincing. (A.R. Further, the ALJ cited no evidence of malingering by plaintiff. 21 22 In his decision, the ALJ found plaintiff to be not credible, in 23 part, because of purported inconsistencies in plaintiff s reported drug 24 use. 25 last using drugs in 2004, her remission was noted as questionable in 26 a June 10, 2006 psychiatric consultative examination report. (A.R. 14.) 27 The ALJ further noted that in a May 1, 2006 visit to the Riverside 28 County Department of Mental Health, plaintiff s methamphetamine abuse Specifically, the ALJ noted that, while plaintiff had reported 14 1 was noted along with a reference to methamphetamine use eight months 2 ago from May of 2006. (Id.) 3 4 Contrary to the ALJ s suggestion, Dr. Rodriguez, who completed the 5 June 10, 2006 psychiatric consultative examination report to which the 6 ALJ 7 questionable. 8 supposedly stopped using illegal drugs in 2004, and supposedly was 9 in full remission. referred, did not expressly find plaintiff s remission Rather, Dr. Rodriguez merely noted that plaintiff (A.R. 273.) To the extent the ALJ found Dr. 10 Rodriguez s 11 plaintiff s remission, the ALJ should have recontacted Dr. Rodriguez and 12 conducted an appropriate inquiry. 13 above, the record is ambiguous with respect to plaintiff s drug use. 14 After carefully reviewing the record and the supplemental briefs from 15 both parties, it is still unclear when plaintiff last used drugs and, 16 thus, whether plaintiff s statements regarding her drug use are, in 17 fact, 18 Accordingly, absent further inquiry, the ALJ s reason for finding 19 plaintiff to be not credible is neither clear nor convincing. statement inconsistent to with be unclear the or ambiguous with respect to Further, as discussed in detail aforementioned medical records. 20 21 Furthermore, while the ALJ proffered other reasons for finding 22 plaintiff to be not credible - to wit, that (1) the medical record did 23 not support the alleged severity and impact of plaintiff s impairments; 24 and (2) plaintiff s daily activities were not consistent with her 25 alleged symptoms - those reasons are neither clear nor convincing. 26 (A.R. 15.) 27 because, in view of the uncertainty surrounding plaintiff s drug use, it 28 is not clear whether the medical record does or does not support the The ALJ s first ground is neither clear nor convincing, 15 1 alleged severity and impact of plaintiff s impairments. 2 and of concern to the Court, plaintiff s medical records appear to show 3 that plaintiff s condition has a cyclical presentation and was not 4 stabilized for an extended period. 5 part, plaintiff has periods of marked lows during which she experiences, 6 inter alia, severe anxiety (A.R. 304, 312), severely low energy (A.R. 7 310), low concentration (A.R. 300, 310-311), moderate mind racing (A.R. 8 303, 311), and severe sleepiness (A.R. 303, 305, 310, 312). 9 supra. While the ALJ Significantly, (See, e.g., A.R. 418.) concludes that plaintiff s In pertinent See Note 7, condition is 10 controllable in the absence of drug abuse, his conclusion is premised on 11 an assumption that plaintiff was abusing drugs during the relevant 12 disability period - an assumption which, as discussed above, does not 13 appear to be clearly supported by substantial evidence. Further, to the 14 extent the ALJ may have relied on Dr. Rodriguez s June 10, 2006 15 statement that plaintiff can easily recover within twelve months if 16 she stops using illegal drugs and takes her psychiatric medications, 17 plaintiff s medical record may belie Dr. Rodriguez s prognosis. 18 276.) 19 plaintiff s subjective symptom testimony is not, by itself, a legally 20 sufficient basis for rejecting such testimony. 21 261 F.3d 853, 856 (9th Cir. 2001). (A.R. Moreover, the failure of the medical record to corroborate fully Rollins v. Massanari, 22 23 The ALJ s second ground for discrediting plaintiff is also neither 24 clear nor convincing. 25 10, 2006 psychiatric consultative examination, Dr. Rodriguez reported 26 that plaintiff was able to drive her own car, run errands, go to the 27 store with her husband, dress and bathe herself, participate in cooking 28 and making snacks, perform household chores, take walks, handle her own In his decision, the ALJ noted that, in a June 16 1 cash, pay the bills, pick up after her children, make dinner with her 2 husband s help, and take her two children to school. 3 Accordingly, 4 combination are not so disabling that she is unable to engage in 5 activities typical of most individuals. 6 however, is not whether plaintiff can engage in activities typical of 7 most individuals; but rather, whether plaintiff is able to work on a 8 sustained basis. 9 explain how plaintiff s basic activities and household chores translate the ALJ determined that plaintiff s (Id.) See Lester, 81 F.3d at 833. (A.R. 15.) symptoms in The relevant test, Here, the ALJ fails to 10 into the ability to perform full-time work. 11 Further, it is unclear how plaintiff s limited daily activities are 12 inconsistent with her alleged symptoms. 13 F.3d 1044, 1050 (9th Cir. 2001)(noting that the mere fact that a 14 plaintiff has carried on certain daily activities, such as grocery 15 shopping, driving a car, or limited walking for exercise, does not in 16 any 17 disability ). way detract See Fair, 885 F.3d 602. See Vertigan v. Halter, 260 from [plaintiff s] crediblity the ALJ failing as to her overall 18 19 Accordingly, erred by to provide clear and 20 convincing reasons, as required, for finding plaintiff to be not 21 credible. 22 23 IV. The ALJ Must Review And Reconsider The Lay Witness Testimony Of 24 Plaintiff s Son, The Third Party Statement Of Plaintiff s Mother, 25 And Plaintiff s Assessed RFC. 26 27 28 Based on the foregoing, there are several matters that the ALJ needs to review and reconsider on remand. 17 As a result, the ALJ s 1 conclusion regarding the credibility of the lay witness testimony and 2 the third party statement, as well as his RFC assessment for plaintiff, 3 may change. 4 fourth claims -- to wit, that the ALJ erred: 5 the lay witness testimony of plaintiff s son, Javier Palos, and the 6 third party statement of plaintiff s mother, Teresa Coronado; and (2) in 7 determining plaintiff s RFC. 8 issues, the ALJ needs to develop the record to resolve the ambiguity 9 surrounding plaintiff s drug use. Once this issue is clarified, the ALJ 10 can determine what impact, if any, this has on his assessment of the lay 11 witness testimony, the third party statement, and plaintiff s RFC. Therefore, the Court does not reach plaintiff s second and (1) in considering both To properly review and reconsider these 12 13 V. Remand Is Required. 14 15 The decision whether to remand for further proceedings or order an 16 immediate award of benefits is within the district court s discretion. 17 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 18 useful purpose would be served by further administrative proceedings, or 19 where the record has been fully developed, it is appropriate to exercise 20 this discretion to direct an immediate award of benefits. 21 ( [T]he decision of whether to remand for further proceedings turns upon 22 the likely utility of such proceedings. ). 23 outstanding issues that must be resolved before a determination of 24 disability can be made, and it is not clear from the record that the ALJ 25 would be required to find the claimant disabled if all the evidence were 26 properly evaluated, remand is appropriate. Where no Id. at 1179 However, where there are Id. at 1179-81. 27 28 Remand is the appropriate remedy to allow the ALJ the opportunity 18 1 to remedy the above-mentioned deficiencies and errors. 2 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 3 further proceedings is appropriate if enhancement of the record would be 4 useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) 5 (remand appropriate to remedy defects in the record). 6 ALJ must correct the above-mentioned deficiencies and errors. See, e.g., On remand, the 7 8 Specifically, the ALJ needs to consider the opinion of Dr. Isreal 9 and, if appropriate, give clear and convincing reasons for rejecting his 10 opinion. 11 his treatment notes with respect to the timing and extent of plaintiff s 12 drug use. In pertinent part, although Dr. Chang s later treatment notes 13 do not discuss plaintiff s drug use, his treatment notes may reflect 14 plaintiff s limitations and restrictions in the absence of drug use. 15 Accordingly, further inquiry may be appropriate. 16 the ambiguity surrounding plaintiff s drug use, the ALJ can properly 17 consider plaintiff s credibility, the credibility of both the lay 18 witness testimony and the third party statement, whether plaintiff s 19 drug use is a contributing factor material to the determination of 20 disability, and plaintiff s RFC. Lastly, to the extent that plaintiff s 21 RFC may need to be reassessed, additional testimony from a vocational 22 expert likely will be required to determine whether plaintiff can 23 perform work other than her past relevant work. Additionally, the ALJ needs to recontact Dr. Chang to clarify Once the ALJ resolves 24 25 CONCLUSION 26 27 Accordingly, for the reasons stated above, IT IS ORDERED that the 28 decision of the Commissioner is REVERSED, and this case is REMANDED for 19 1 further proceedings consistent with this Memorandum Opinion and Order. 2 3 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 4 copies of this Memorandum Opinion and Order and the Judgment on counsel 5 for plaintiff and for defendant. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: March 1, 2011 10 11 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20
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