Matthew Fernandez v. Michael J. Astrue, No. 5:2010cv01061 - Document 18 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)
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Matthew Fernandez v. Michael J. Astrue Doc. 18 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MATTHEW FERNANDEZ, 12 13 14 15 16 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. ED CV 10-01061 RZ MEMORANDUM OPINION AND ORDER 17 Plaintiff Matthew Fernandez, who applied for Supplemental Security Income 18 when he was a child but attained the age of majority before his claim was fully adjudicated, 19 had been treated at Loma Linda Behavior Medical Center. On March 28, 2008, treating 20 physician Dr. Mary Ann Schaepper, a child psychiatrist, filled out a form for the California 21 Department of Social Services, checking off boxes on that form indicating that Plaintiff 22 was not able to work, that he had limitations that affect his ability to work or participate 23 in education or training, and that his condition required someone to be in the home to care 24 for him. [AR 453] The Administrative Law Judge said the following about Dr. Schaepper: 25 26 As for the opinion evidence, the undersigned rejects the 27 assessment by Dr. Shaepper [sic] indicating that the claimant 28 was emotionally disturbed and that mental illness led to the Dockets.Justia.com 1 claimant s drug abuse as this is not corroborated by the form 2 from Dr. Shaepper [sic] submitted at the hearing. (Exhibits 23F 3 and 24F). 4 5 [AR 13] 6 The Administrative Law Judge s view of Dr. Schaepper s opinions forms the 7 basis for the first error Plaintiff asserts, that the Administrative Law Judge did not give 8 good enough and sufficient reasons for rejecting the opinions. Under well-established law, 9 the opinion of a treating physician is entitled to considerable deference; in general, it is 10 given greater weight than the opinion of other physicians, Aukland v. Massanari, 257 F.3d 11 1033, 1036 (9th Cir. 2001) and, in some circumstances, it is even entitled to controlling 12 weight. The law concerning the assessment of treating physician opinion is summarized 13 in Holohan v. Massanari, 246 F.3d 1195, 1201-03 (9th Cir. 2001): 14 15 Title II s implementing regulations distinguish among the 16 opinions of three types of physicians: (1) those who treat the 17 claimant (treating physicians); (2) those who examine but do not 18 treat the claimant (examining physicians); and (3) those who 19 neither examine nor treat the claimant [but who review the 20 claimant's file] (nonexamining [or reviewing] physicians). 21 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); see 20 C.F.R. 22 § 404.1527(d). Generally, a treating physician s opinion carries 23 more weight than an examining physician s, and an examining 24 physician s opinion carries more weight than a reviewing 25 physician s. Lester, 81 F.3d at 830; 20 C.F.R. § 404.1527(d). In 26 addition, the regulations give more weight to opinions that are 27 explained than to those that are not, see 20 C.F.R. 28 § 404.1527(d)(3), and to the opinions of specialists concerning -2- 1 matters relating to their specialty over that of nonspecialists, see 2 id. § 404.1527(d)(5). 3 In disability benefits cases, physicians typically provide 4 two types of opinions: medical opinions that speak to the nature 5 and extent of a claimant s limitations, and opinions concerning 6 the ultimate issue of disability, i.e., opinions about whether a 7 claimant is capable of any work, given her or his limitations. 8 Under the regulations, if a treating physician s medical opinion 9 is supported by medically acceptable diagnostic techniques and 10 is not inconsistent with other substantial evidence in the record, 11 the treating physician's opinion is given controlling weight. 20 12 C.F.R. § 404.1527(d)(2); see also Social Security Ruling (SSR) 13 96-2p. An ALJ may reject the uncontradicted medical opinion 14 of a treating physician only for clear and convincing reasons 15 supported by substantial evidence in the record. Reddick v. 16 Chater, 157 F.3d 715, 725 (9th Cir. 1998) (internal quotation 17 marks and citation omitted). If the treating physician s medical 18 opinion is inconsistent with other substantial evidence in the 19 record, [t]reating source medical opinions are still entitled to 20 deference and must be weighted using all the factors provided in 21 20 CFR [§ ] 404.1527. SSR 96-2p; see id. ( Adjudicators must 22 remember that a finding that a treating source medical opinion 23 is . . . inconsistent with the other substantial evidence in the case 24 record means only that the opinion is not entitled to controlling 25 weight, not that the opinion should be rejected. . . . In many 26 cases, a treating source s medical opinion will be entitled to the 27 greatest weight and should be adopted, even if it does not meet 28 the test for controlling weight. ). An ALJ may rely on the -3- 1 medical opinion of a non-treating doctor instead of the contrary 2 opinion of a treating doctor only if she or he provides specific 3 and legitimate reasons supported by substantial evidence in the 4 record. Lester, 81 F.3d at 830 (internal quotation marks and 5 citation omitted). Similarly, an ALJ may reject a treating 6 physician s uncontradicted opinion on the ultimate issue of 7 disability only with clear and convincing reasons supported by 8 substantial evidence in the record. Reddick, 157 F.3d at 725 9 (quoting Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) 10 (internal quotation marks omitted)). If the treating physician s 11 opinion on the issue of disability is controverted, the ALJ must 12 still provide specific and legitimate reasons in order to reject 13 the treating physician's opinion. Id. 14 15 Id. (footnotes omitted). 16 In this Court, the Commissioner s reaction to the precedent surrounding the 17 treating physician law is surprising. The Commissioner cites applicable statutes and 18 regulations, and then says: 19 20 Notwithstanding the standards and rules set forth by 21 Congress and by the Commissioner, the Ninth Circuit directs 22 that an ALJ must provide clear and convincing reasons to 23 reject the opinion of a treating physician when that opinion is 24 uncontradicted. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 25 1996). To the extent the Ninth Circuit s judicially-created 26 standard exceeds the requirements set forth by Congress and by 27 the Commissioner at the behest of Congress, it would appear to 28 be improper. -4- 1 Defendant s Memorandum in Support of Defendant s Answer, 3:15-21 (emphasis added). 2 Despite this criticism of the Ninth Circuit s case law, the law appears to be similar in most 3 circuits. Most circuits give deference to the treating physician opinion, and require 4 significant reasons for rejecting the opinion of a treating physician. See C. KUBITSCHEK 5 AND J. DUBIN, SOCIAL SECURITY DISABILITY; LAW AND PROCEDURE IN FEDERAL COURT 6 (2011) §§ 2:31 et seq. Moreover, of course, this Court must follow the precedent of the Ninth 7 8 Circuit, and has no authority to deviate from it. 9 Commissioner s invitation to proceed in a manner contrary to what the Ninth Circuit 10 Thus, the Court declines the provides. 11 Applying the governing precedent, the Court agrees with Plaintiff that the 12 Administrative Law Judge s assessment is an insufficient basis to reject Dr. Schaepper s 13 opinions. The Administrative Law Judge said that the form accompanying Dr. Schaepper s 14 statement did not support her opinion that Plaintiff was emotionally disturbed. To begin 15 with, the statement was all part of a single form. Moreover, the explanations Dr. Schaepper 16 gave did, in fact, show Plaintiff to be emotionally disturbed. Dr. Schaepper stated that 17 Plaintiff was extremely impulsive, delusional [and] actively psychotic. [AR 454] She 18 also stated that he was very hyperactive, hyperverbal, unaware of social inappropriateness, 19 and intrusive with peers. [Id.] These statements clearly show a medical opinion that 20 Plaintiff is emotionally disturbed. 21 As for the impact of Plaintiff s drug usage, Dr. Schaepper was not asked about 22 that directly on the form. However, the medical record does contain her views on the 23 impact of his drug usage. Thus, when Plaintiff was admitted to the behavioral center, his 24 admission diagnoses on Axis I were: 25 26 1. Psychotic disorder, not otherwise specified, rule out 27 substance-indued mood disorder, rule out bipolar 28 disorder. -5- 1 2. Amphetamine abuse. 2 3. Marijuana abuse. 3 4 [AR 317] After admission and treatment, however, the Axis I discharge diagnosis was 5 stated as: 6 7 1. Schizophrenia, disorganized versus paranoid type versus schizophreniform. 8 9 2. Amphetamine abuse. 10 3. Marijuana abuse. 11 12 [Id.] Thus, after admission, Dr. Schaepper ruled out a substance-induced mood disorder, 13 one of the tasks identified in the admitting diagnosis. She also, in both the admitting and 14 discharge diagnoses, identified Plaintiff s drug usage as subordinate to his mental disorder 15 (originally identified as a psychotic disorder, not otherwise specified, then sharpened to 16 schizophrenia), in keeping with the instruction in the DSM-IV to list the principal diagnosis 17 first in Axis I. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC 18 MANUAL OF MENTAL DISORDERS, FOURTH EDITION (1994) at 25. In light of this record, 19 the Court finds that it is not a legitimate or clear and convincing reason to reject 20 Dr. Schaepper s opinions by stating that the form she filled out did not offer a basis for 21 saying that the drug usage arose in response to Plaintiff s mental disorders. AND STATISTICAL 22 And that is all the Administrative Law Judge said. In this Court, the 23 Commissioner now says something different, that the Administrative Law Judge was 24 justified in his assessment because an administrative law judge can discredit treating 25 physician opinions that are conclusory, brief and unsupported by the record as a whole or 26 by objective medical findings. 27 Administrative Law Judge himself did not rely on these principles, however, and therefore 28 it is improper for the Commissioner to rely on the arguments now. Ceguerra v. Secretary (Defendant s Memorandum at 8:17-22). -6- The 1 of Health & Human Services, 933 F.2d 735, 738 (9th Cir. 1991). In any event, the 2 Commissioner is wrong. Dr. Schaepper s opinions are none of these things; they are not 3 conclusory, brief, or unsupported by the record or objective medical findings. On the basis of the foregoing, the Court finds Plaintiff s first argument 4 5 persuasive. 6 Plaintiff s second argument is that the Administrative Law Judge wrongly 7 applied the Medical-Vocational Guidelines ( the grids ), 20 C.F.R. Part 404, Subpart P, 8 Appendix II, and should have called a vocational expert instead. Since the grids measure 9 a claimant s ability to exert himself while working, they cannot determine disability when 10 the claimant s impairment is nonexertional. 20 C.F.R. Part 404, Subpart P, Appendix 2, 11 § 404.200(e)(1); 20 C.F.R.§ 416.969. The Commissioner must use a vocational expert, 12 rather than rely on the grids alone, where there is a non-exertional impairment that is 13 sufficiently severe that it limits the claimant s capacity in ways not contemplated by the 14 grids. Aukland v. Massanari, 257 F.3d 1033, 1034 (9th Cir. 2001); Desrossiers v. 15 Secretary of Health and Human Services, 846 F.2d 573, 577-78 (9th Cir. 1988). When the 16 nonexertional impairment itself is limiting, the Administrative Law Judge may not rely on 17 the grids. Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988) ( where, as here, a 18 claimant s nonexertional limitations are in themselves enough to limit his range of work, 19 the grids do not apply, and the testimony of a vocational expert is required to identify 20 specific jobs within the claimant s abilities ) (citations omitted). 21 Given the opinions of Plaintiff s treating physician, it is error to say that 22 Plaintiff s non-exertional limitations have no impact on his ability to work. A person who 23 is delusional and actively psychotic, who needs 1:1 staffing and has attentional issues, 24 among others, clearly has limitations that are unrelated to physical abilities. A vocational 25 expert needed to be consulted. It was error not to do so. 26 /// 27 /// 28 /// -7- 1 In accordance with the discussion here, the decision is reversed. The matter 2 is remanded to the Commissioner who shall accept the opinions of the treating physician 3 and otherwise proceed in a manner consistent with this opinion. 4 IT IS SO ORDERED. 5 6 DATED: March 22, 2011 7 8 9 10 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-
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