Alice Sameniego Smith v. Michael J. Astrue, No. 5:2010cv00805 - Document 15 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, This matter will be remanded as to each of these issues, and a de novo hearing will be held consistent with this Memorandum Opinion. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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Alice Sameniego Smith v. Michael J. Astrue Doc. 15 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 ALICE SAMANIEGO SMITH, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 10-00805-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 (“ALJ”) properly Dockets.Justia.com 1 considered the treating physician’s opinion; and 2 2. 3 4 Whether the ALJ properly considered the law witness testimony. (AR at 2.) 5 6 This Memorandum Opinion will constitute the Court’s findings of 7 fact and conclusions of law. 8 concludes 9 Commissioner must be reversed. that for the After reviewing the matter, the Court reasons set forth, the decision of the 10 11 I 12 THE ALJ DID NOT PROPERLY CONSIDER THE OPINION 13 OF TREATING PSYCHIATRIST DR. UMAKANTHAN 14 In his Decision (AR 9-16), the ALJ determined that one of 15 Plaintiff’s severe impairments is depression, but that she does not 16 meet or equal a Listing as defined in 20 C.F.R. Part 404, subpart P, 17 Appendix 1. (AR 11.) 18 “check-off form” in November 2008 which indicated mental functional 19 limitations ranging from moderate to extreme. (AR 14, citing AR 408- 20 409.) 21 conclusory and without basis or support in the record.” (AR 14.) 22 Instead, 23 consultative examiner was “credible.” (Id.) (See Complete Psychiatric 24 Evaluation of Dr. Yang, dated January 18, 2006, at AR 185-189.) The ALJ noted that Dr. Umakanthan completed a This opinion was rejected because it was found to be “entirely the ALJ found that the opinion of the psychiatric 25 Plaintiff frames her first issue as a challenge to the ALJ’s 26 rejection of Dr. Umakanthan’s check-off form, asserting that, contrary 27 to the ALJ’s conclusion, the report is not conclusory, but is based on 28 and consistent with numerous prior treatment notes. 2 For the reasons 1 to be discussed the Court agrees with Plaintiff’s contention. 2 3 A. Applicable Law. 4 The Ninth Circuit has repeatedly reaffirmed the principle that 5 greatest weight is ordinarily given to the opinions of treating 6 physicians versus those physicians who do not treat: 7 “We afford greater weight to a treating physician’s 8 opinion because ‘he is employed to cure and has a greater 9 opportunity to know and observe the patient as an 10 individual.’” Magallanes v. Bowen, 881 F.2d 747, 751 (9th 11 Cir. 1989), quoting Sprague v. Bowen, 812 F.2d 1226, 1230 12 (9th Cir. 1987). 13 14 Even so, the treating physician’s opinion is not necessarily 15 conclusive as to either a physical condition or the ultimate issue of 16 disability. Id., citing Rodriguez v. Bowen, 876 F.2d 759, 761-62 & n. 17 7 (9th Cir. 1989) 18 opinion whether or not that opinion is contradicted, Id., citing 19 Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986). 20 ALJ chooses to do so, the ALJ must ‘“‘make findings setting forth 21 specific, for 22 substantial evidence in the record.’”’ Id., citing Winans v. Bowen, 23 853 F.2d 643, 647 (9th Cir. 1987), quoting Sprague, 812 F.2d at 1230; 24 see also Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). The ALJ may disregard the treating physician’s legitimate reasons doing so that However, if the are based on 25 This clearly articulated rule, set forth by the Circuit in its 26 opinions in Magallanes and Cotton, has been often cited in later 27 decisions. (See, Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 28 1995): “The ALJ may reject the opinion only if she provides clear and 3 1 convincing reasons that are supported by the record as a whole.”; 2 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995): “Even if the 3 treating doctor’s opinion is contradicted by another doctor, the 4 Commissioner may not reject this opinion without providing ‘specific 5 and legitimate reasons’ supported by substantial evidence in the 6 record for so doing.” (Citation omitted). 7 In those cases where the opinion of the treating physician 8 conflicts with that of an examining physician, such as occurred in 9 this case, the Ninth Circuit has held that the ALJ can resolve the 10 differences between these opinions by setting out a detailed and 11 thorough summary of the facts and conflicting clinical evidence, 12 stating his interpretation, and making findings. Magallanes, 881 F.2d 13 at 751, citing Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986). 14 15 Also instructive is the Ninth Circuit’s discussion of this issue in Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995): 16 “Where the opinion of the claimant’s treating physician 17 is contradicted, and the opinion of a nontreating source is 18 based on independent clinical findings that differ from 19 those 20 nontreating source may itself be substantial evidence; it is 21 then solely the province of the ALJ to resolve the conflict. 22 Magallanes, 881 F.2d at 751. 23 nontreating 24 treating physician but is not based on independent clinical 25 findings, or rests on clinical findings also considered by 26 the 27 physician may be rejected only in the ALJ gives specific, 28 legitimate of the treating source’s treating for the opinion of the Where, on the other hand, a opinion physician, reasons physician, the doing 4 contradicts opinion so of that that the are of the treating based on 1 substantial evidence in the record. Id. at 751, 755. 2 Ramirez v. Shalala, 8 F.3d 1449, 1453 (9th Cir. 1993) 3 (applying test where ALJ relied on contradictory opinion of 4 nonexamining medical advisor).” 5 See (53 F.3d at 1041.) 6 7 With regard to “check-off” forms, they are disfavored when they 8 are unsupported by objective findings. 9 251, 253 (9th Cir. 1996), citing Murray v. Heckler, 722 F.2d 499, 501 10 (9th Cir. 1983). 11 See Crane v. Shalala, 76 F.3d See also Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 12 13 B. 14 The Court’s task here is to determine whether, in fact, Dr. 15 Umakanthan’s check-off form is without any basis or support in the 16 record, as the ALJ concluded.1 17 Analysis. The importance of functional evaluation in mental health cases is 18 underscored in 19 §416.920(a)(C)(3)(4), which mandate that consideration be given, among 20 other 21 functioning; concentration, persistence or pace; and episodes of 22 decompensation. 23 §404.1520(a)(E)(2) 24 categories for the first three of four relevant functional areas: 25 activities 26 persistence or pace, and episodes of decompensation. These categories things, of to 20 C.F.R. activities of §404.1520(a)(C)(3)(4) daily living (“ADLs”); and social The revised regulations, embodied in 20 C.F.R. and daily §416.920(a)(E)(2) living, social identify functioning, five discrete concentration, 27 1 28 By definition, check-off forms are conclusory, and therefore the question is whether they are backed up by objective evidence. 5 1 are None, Mild, Moderate, Marked, and Extreme. These evaluations are 2 important in the Step Two and Step Three sequential evaluation process 3 to determine whether a claimant has a severe mental impairment, and if 4 so, whether it meets or equals any of the Listings. Consequently, Dr. 5 Umakanthan’s check-off form conclusions are relevant in the sequential 6 evaluation process. 7 In the JS, Plaintiff has summarized numerous treatment records 8 which, she argues, are relevant to and supportive of Dr. Umakanthan’s 9 check-off conclusions. (See JS at 4-6.) The time line of these notes 10 ranges from October 27, 2005, when an Adult Intake Assessment was 11 completed by the Los Angeles County Department of Mental Health (AR 12 172-177), to November 24, 2008, when Dr. Umakanthan completed another 13 progress note. (AR 412.) In between, there are treatment and progress 14 notes from July 9, 2008 (AR 422-426); August 1, 2008 (AR 420-421); 15 August 22, 2008 (AR 418); August 28, 2008 (AR 417); September 19, 2008 16 (AR 416); October 9, 2008 (AR 415); and October 31, 2008 (AR 413). 17 The Commissioner acknowledges the existence of these progress notes, 18 but vigorously argues that they do not support Dr. Umakanthan’s 19 functional assessments. Certainly, these treatment and progress notes 20 do 21 Umakanthan provided in his check-off form. 22 provide relevant evaluations which may provide evidentiary support for 23 Dr. Umakanthan’s assessments. 24 discussed them in the Decision, the Court might have some basis to 25 evaluate the correctness of the ALJ’s rejection of Dr. Umakanthan’s 26 check-off form. Simply stating, as he did, that the check-off form is 27 “entirely conclusory and without basis or support in the record,” 28 provides no basis for adequate judicial review. not contain specific mental functional assessments, as Dr. Nevertheless, they do If the ALJ had reviewed them, and 6 Simply put, and in 1 view of the fact that Dr. Umakanthan’s report does appear to be at 2 odds 3 psychiatric evaluation,2 the ALJ’s rejection of Dr. Umakanthan’s 4 conclusions is not supported by the requisite specific and legitimate 5 reasons.3 with the conclusions reached by Dr. Yang in his complete 6 The Commissioner spends significant time arguing that the ALJ was 7 not required to discuss all of these treatment and progress notes, an 8 argument which the Court rejects as unavailing in view of the fact 9 that the progress notes are clearly relevant evidence, as the 10 Commissioner appears to concede later in his argument. 11 progress notes are clearly the type of classic probative evidence that 12 should and must be examined in this type of case. 13 rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). 14 failure to examine probative evidence can never be viewed as harmless. 15 In any event, the Commissioner’s contention that the progress notes do 16 not support Dr. Umakanthan’s functional conclusions as set forth in 17 the check-off form is not persuasive. 18 there 19 contained in these progress and treatment notes which may well support 20 Dr. Umakanthan’s conclusions. is significant evidence of Indeed, these See Vincent ex. The It would certainly appear that serious mental health issues Further, and in addition to the fact 21 22 23 24 25 26 27 28 2 It should be noted, however, that Dr. Yang completed his examination almost three years before Dr. Umakanthan’s check-off form was completed. 3 Here, the Commissioner, in the JS, inserts an argument that the well-established standards of the Ninth Circuit for evaluation of opinions of treating, examining, and non-examining physicians exceed the requirements set forth by Congress and “would appear to be improper.” The Commissioner’s apparent suggestion to the Court that it should ignore the dictates of the Ninth Circuit, which the Commissioner has never succeeded in overturning in the Supreme Court (if indeed, such an attempt has been made), is rejected in its entirety. 7 1 that Dr. Yang’s evaluation appears to be somewhat stale, having been 2 completed on January 18, 2006, the Court notes that Dr. Yang did not 3 review any medical or psychiatric records, did not perform any 4 testing, and instead seems to have relied upon a brief mental status 5 evaluation in reaching his conclusions. 6 validity of those conclusions somewhat suspect. All in all, this makes the 7 For the foregoing reasons, the Court determines that the ALJ’s 8 rejection of Dr. Umakanthan’s opinion is not supported by proper legal 9 standards, and merits remand for further hearing consistent with this 10 decision. 11 The Court will only briefly discuss Plaintiff’s second issue, 12 which questions whether the ALJ properly considered the lay witness 13 testimony of Plaintiff’s mother, Ruby Samaniego. 14 testified at the hearing before the ALJ (41-43), and also completed a 15 Function Report - Adult - Third Party. (AR 99-106.) 16 summarized Ms. Samaniego’s statements and comments in the JS, and 17 certainly, many of them are relevant to an evaluation of Plaintiff’s 18 mental 19 abilities. 20 his decision, a fact which the Commissioner concedes, but argues 21 constitutes harmless error. 22 finds that the ALJ’s failure to address Ms. Samaniego’s testimony 23 indeed was error, because the testimony was material, and should have 24 been considered and evaluated in the Decision. 25 80 F.3d 1273, 1288-89 (9th Cir. 1986). 26 // 27 // 28 // health, and to an assessment of her Ms. Samaniego mental Plaintiff functional Nevertheless, the ALJ failed to discuss this testimony in The Court rejects that contention, and 8 See Smolen v. Chater, 1 This matter will thus be remanded as to each of these issues, and 2 a de novo hearing will be held consistent with this Memorandum 3 Opinion. 4 IT IS SO ORDERED. 5 6 7 DATED: February 17, 2011 /s/ VICTOR B. KENTON 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 9
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