Debra A. Rodriguez v. Michael J. Astrue, No. 5:2010cv01153 - Document 18 (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. (bem)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 DEBRA A. RODRIGUEZ, 11 12 13 14 Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 15 16 Defendant. ) Case No. ED CV 10-1153 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 17 18 I. 19 INTRODUCTION AND SUMMARY 20 On August 13, 2010, plaintiff Debra A. Rodriguez ( Plaintiff ) filed a 21 complaint against defendant Michael J. Astrue ( Defendant ), the Commissioner of 22 the Social Security Administration, seeking review of a denial of supplemental 23 security income benefits ( SSI ). [Docket No. 3.] On March 3, 2011, Defendant filed his answer, along with a certified copy of 24 25 the administrative record. [Docket Nos. 12, 13, 14.] In sum, having carefully studied, inter alia, the parties joint stipulation and 26 27 the administrative record, the Court concludes that, as detailed below, the 28 Administrative Law Judge ( ALJ ) improperly evaluated the opinion of Plaintiff s 1 examining physician. The Court thus remands this matter to the Commissioner in 2 accordance with the principles and instructions enunciated in this Memorandum 3 Opinion and Order. 4 II. 5 PERTINENT FACTUAL AND PROCEDURAL BACKGROUND Plaintiff, who was 53 years old on the date of her most recent administrative 6 7 hearing, has completed the tenth grade.1/ (See Administrative Record ( AR ) at 108, 8 129, 161, 556, 598.) On May 26, 2005, Plaintiff filed for DIB and SSI, alleging that she has been 9 10 disabled since June 1, 2000 due to hepatitis C, thyroid disease, vision problems, 11 arthritis, degenerative disc disease, carpal tunnel syndrome, anxiety, insomnia, and 12 ear aches. (See AR at 19, 43, 44, 61, 67, 108, 147, 153.) On December 19, 2006, Plaintiff, represented by counsel, appeared and 13 14 testified at a hearing before the ALJ. (AR at 552-77.) The ALJ also heard testimony 15 from Victor Schorn, M.D., a medical expert ( ME ) and Mary Jesko, a vocational 16 expert ( VE ). (Id.; see id. at 48.) On January 9, 2007, the ALJ issued a partially favorable decision granting 17 18 Plaintiff s request for benefits for a closed period from June 1, 2000 until December 19 1, 2006. (AR at 48-55.) Plaintiff appealed and, on January 11, 2008, the Appeals Council vacated the 20 21 decision and remanded the case to the ALJ for further proceedings. (See AR at 5822 60.) The Appeals Council determined that Plaintiff was never entitled to [DIB] 23 and [t]herefore, [Plaintiff s] application for a period of disability and [DIB] was not 24 properly before the [ALJ]. (Id. at 58.) Also citing a number of other errors, inter 25 26 1/ At times, Plaintiff also reported that the highest level of education she completed was the eighth grade. (Compare AR at 129, 161, 556 with id. at 445, 28 582.) 27 2 1 alia, in evaluating the medical evidence and determining Plaintiff s past relevant 2 work, the Appeals Council remanded the case so that the ALJ could take 3 appropriate action to resolve the issues cited and offer [Plaintiff] an opportunity 4 for a hearing and a new decision. (Id. at 60.) 5 On November 18, 2008, Plaintiff, proceeding pro se, appeared and testified at 6 a subsequent hearing before the ALJ. (AR at 578-97.) At the hearing, the ALJ 7 ordered a more up-to-date examination by a specialist in either neurology or 8 orthopedics and continued the case. (Id. at 595.) 9 On March 30, 2009, Plaintiff, proceeding pro se, appeared and testified at a 10 third hearing before the ALJ. (AR at 598-609.) The ALJ also heard testimony from 11 Joseph Mooney, a VE. (Id.) 12 On June 18, 2009, the ALJ denied Plaintiff s request for benefits. (AR at 19- 13 32.) Applying the well-known five-step sequential evaluation process, the ALJ 14 found, at step one, that Plaintiff has not engaged in substantial gainful activity since 15 her application date. (Id. at 22.) 16 At step two, the ALJ found that Plaintiff suffers from a severe impairment of 17 the musculoskeletal system. (AR at 22 (bold omitted).) 18 At step three, the ALJ determined that the evidence does not demonstrate that 19 Plaintiff s impairment, either individually or in combination, met or medically equal 20 the severity of any listing set forth in the Social Security regulations.2/ (AR at 2221 23.) The ALJ then assessed Plaintiff s residual functional capacity3/ ( RFC ) and 22 23 24 2/ 25 3/ See 20 C.F.R. pt. 404, subpt. P, app. 1. Residual functional capacity is what a claimant can still do despite existing 26 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the 27 ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s 28 residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 3 1 determined that: 2 beginning with the application date of May 26, 2005 to May 3, 3 2006, [Plaintiff] had the [RFC] to perform the full range of 4 medium work consisting of lifting and carrying 50 pounds 5 occasionally and 25 pounds frequently; standing and walking for 6 6 hours out of an 8-hour work day, and sitting for 6 hours out of 7 an 8-hour work day. Beginning on May 3, 2006 and continuing 8 through the date of this decision, [Plaintiff] has been limited to 9 light exertion. [Plaintiff] can push, pull, lift, and carry 20 pounds 10 occasionally and 10 pounds frequently. She can stand and walk 11 for 6 hours out of an 8-hour work day, and she can sit for 6 hours 12 out of an 8-hour work day. She is precluded from walking on 13 uneven terrain, climbing ladders, or working at heights. She 14 requires a sit/stand option every hour for a few minutes. 15 [Plaintiff] is limited to simple, repetitive tasks. 16 (AR at 23 (bold omitted).) 17 The ALJ found, at step four, that Plaintiff has no past relevant work. (AR at 18 30.) 19 At step five, based on Plaintiff s RFC and the VE s testimony, the ALJ found 20 that there are jobs that exist in significant numbers in the national economy that 21 [Plaintiff] can perform, including housekeeper, cleaner, cashier II, and packager. 22 (AR at 30-31 (emphasis omitted).) Thus, the ALJ concluded that Plaintiff was not 23 suffering from a disability as defined by the Act. (Id. at 20, 31.) 24 Plaintiff filed a timely request for review of the ALJ s decision, which was 25 denied by the Appeals Council. (AR at 5-7, 13.) The ALJ s decision stands as the 26 final decision of the Commissioner. 27 28 2007). 4 1 III. 2 STANDARD OF REVIEW 3 This Court is empowered to review decisions by the Commissioner to deny 4 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 5 Administration must be upheld if they are free of legal error and supported by 6 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as 7 amended Dec. 21, 2001). If the court, however, determines that the ALJ s findings 8 are based on legal error or are not supported by substantial evidence in the record, 9 the court may reject the findings and set aside the decision to deny benefits. 10 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 11 242 F.3d 1144, 1147 (9th Cir. 2001). 12 Substantial evidence is more than a mere scintilla, but less than a 13 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 14 evidence which a reasonable person might accept as adequate to support a 15 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 16 at 459. To determine whether substantial evidence supports the ALJ s finding, the 17 reviewing court must review the administrative record as a whole, weighing both 18 the evidence that supports and the evidence that detracts from the ALJ s 19 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 20 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 21 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 22 evidence can reasonably support either affirming or reversing the ALJ s decision, 23 the reviewing court may not substitute its judgment for that of the ALJ. Id. 24 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 25 IV. 26 ISSUES PRESENTED 27 Two disputed issues are presented for decision here: 28 1. whether the ALJ properly evaluated the opinion of examining 5 1 psychiatrist Oluwafemi Adeyemo, M.D. ( Dr. Adeyemo ), (see Joint Stip. at 5-13, 2 16-17); and 3 2. whether the ALJ erred in his step-five evaluation. (Id. at 17-21, 23-24.) 4 Under the circumstances here, the Court finds the issue of the ALJ s 5 evaluation of Dr. Adeyemo s opinion to be dispositive of this matter, and does not 6 reach the remaining issue. 7 V. 8 DISCUSSION AND ANALYSIS 9 10 A. Evaluation of the Medical Evidence Plaintiff argues that the ALJ rejects Dr. Adeyemo s opinion [for] legally 11 insufficient reasons. (Joint Stip. at 8.) 12 1. The ALJ Must Provide Specific and Legitimate Reasons 13 Supported by Substantial Evidence to Reject an Examining 14 Physician s Opinion 15 In evaluating medical opinions, Ninth Circuit case law and Social Security 16 regulations distinguish among the opinions of three types of physicians: 17 (1) those who treat the claimant (treating physicians); 18 (2) those who examine but do not treat the claimant (examining physicians); 19 and 20 (3) those who neither examine nor treat the claimant (non-examining 21 physicians). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995, as amended April 9, 22 1996); see also 20 C.F.R. §§ 404.1527(d) & 416.927(d) (prescribing the respective 23 weight to be given the opinion of treating sources and examining sources). 24 As a general rule, more weight should be given to the opinion of a treating 25 source than to the opinion of doctors who do not treat the claimant. Lester, 81 F.3d 26 at 830; accord Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1036 (9th Cir. 27 2003). This is so because a treating physician is employed to cure and has a greater 28 opportunity to know and observe the patient as an individual. Sprague v. Bowen, 6 1 812 F.2d 1226, 1230 (9th Cir. 1987). 2 Where the treating physician s opinion is not contradicted by another doctor, 3 it may be rejected only for clear and convincing reasons. Benton, 331 F.3d at 4 1036; see also Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) ( While the 5 ALJ may disregard the opinion of a treating physician, whether or not controverted, 6 the ALJ may reject an uncontroverted opinion of a treating physician only for clear 7 and convincing reasons. ) (italics in original). 8 Even if the treating doctor s opinion is contradicted by another doctor, the 9 [ALJ] may not reject this opinion without providing specific and legitimate reasons 10 supported by substantial evidence in the record[.] Lester, 81 F.3d at 830 (internal 11 quotation marks and citation omitted); accord Reddick, 157 F.3d at 725. 12 The ALJ can meet the requisite specific and legitimate standard by setting 13 out a detailed and thorough summary of the facts and conflicting clinical evidence, 14 stating his interpretation thereof, and making findings. Magallanes v. Bowen, 881 15 F.2d 747, 751 (9th Cir. 1989) (internal quotation marks and citation omitted). 16 17 2. The ALJ Improperly Evaluated Dr. Adeyemo s opinion Having carefully reviewed the record and the joint stipulation, the Court is 18 persuaded that the ALJ s assessment of Dr. Adeyemo s opinion regarding Plaintiff s 19 mental impairments is not legally sufficient and/or supported by substantial 20 evidence. Six reasons guide this Court s determination. 21 First, the ALJ s rejection of Dr. Adeyemo s opinion because he has had 22 several reports from this source, and [has] found them all to be exaggerated in the 23 assessed limitations and totally unpersuasive, (AR at 28), indicates a bias against 24 Dr. Adeyemo and casts serious doubt on the ALJ s ability to view Dr. Adeyemo s 25 opinion objectively. Wentworth v. Barnhart, 71 Fed.Appx. 727, 728-29 (9th Cir. 26 2003). The ALJ presents no evidence that Dr. Adeyemo exaggerates his assessed 27 limitations and his conclusion is improperly based on his past experience with Dr. 28 Adeyemo. See Reed v. Massanari, 270 F.3d 838, 843-44 (9th Cir. 2001) (holding 7 1 that it was improper for the ALJ to reject opinions of doctors based on past decisions 2 that were not examined on the record). Thus, the ALJ s skepticism flies in the face 3 of clear circuit precedent. Reddick, 157 F.3d at 726 ( This skepticism of a treating 4 physician s credibility flies in the face of clear circuit precedent. ); see also Lester, 5 81 F.3d at 832 (holding that an ALJ may not assume that doctors routinely lie in 6 order to help patients collect disability benefits ) (internal quotation marks and 7 citation omitted). 8 Second, the Court disagrees with the ALJ s conclusion that Dr. Adeyemo did 9 not even come to a firm diagnosis other than an adjustment disorder versus a 10 depressed mood. (AR at 28.) Dr. Adeyemo s diagnosis of Plaintiff s mental 11 impairment was [a]djustment disorder with [d]epressed [m]ood, not adjustment 12 disorder versus a depressed mood, as the ALJ described. (Compare id. at 446 13 (emphasis added) with id. at 28 (emphasis added).) Accordingly, the ALJ s 14 paraphrasing of Dr. Adeyemo s diagnosis is not accurate. See Reddick, 157 F.3d at 15 722-23 ( [T]he ALJ developed his evidentiary basis by not fully accounting for the 16 context of materials or all parts of the testimony and reports. His paraphrasing of 17 record material is not entirely accurate regarding the content or tone of the record. ). 18 Third, the ALJ s rejection of Dr. Adeyemo s opinion because he reported 19 reviewing a Beck Depression Inventory II score of 41 . . . , [which] is not contained 20 within the file, (AR at 28), is not a specific and legitimate reason. Under the 21 circumstances here, the ALJ should have contacted Dr. Adeyemo for the records 22 reviewed by him given his belief that Dr. Adeyemo s opinion was unsupported. See 23 20 C.F.R. §§ 404.1512(e)(1) & 416.912(e)(1) (if evidence from a medical source is 24 inadequate to determine if the claimant is disabled, an ALJ is required to recontact 25 the medical source, including a treating physician, to determine if additional needed 26 27 28 8 1 information is readily available); see Social Security Ruling ( SSR ) 96-5p,4/ 1996 2 WL 374183, at *6 ( Because treating source evidence (including opinion evidence) 3 is important, if the evidence does not support a treating source s opinion on any 4 issue reserved to the Commissioner and the adjudicator cannot ascertain the basis of 5 the opinion from the case record, the adjudicator must make every reasonable 6 effort to recontact the source for clarification of the reasons for the opinion. ). 7 Third, the ALJ erred in rejecting Dr. Adeyemo s opinion based on Plaintiff s 8 denial of depressive symptoms to her treating sources. (AR at 28.) Defendant 9 similarly argues that [i]f Plaintiff were truly as disabled as she alleged, it is likely 10 that she would have reported symptoms to her physicians, or sought treatment from 11 a psychiatric professional and [s]he did neither. (Joint Stip. at 15.) However, 12 while Plaintiff did report that she was not depressed on one occasion to a treating 13 source, (see AR at 242), and testified during her first administrative hearing, I don t 14 feel I am depressed, (id. at 576), Plaintiff also reported depressive symptoms to 15 various sources. For instance, she indicated on separate occasions that she is 16 feeling somewhat fatigued generally, is suffering from extreme insomnia, she 17 was not sleeping well since her husband passed away, stopped taking 18 [antidepressants] because of the side effects and found the sadness comes and 19 goes. (Id. at 242, 330, 392, 482); see Green v. Astrue, 2011 WL 782390, at *2 20 (C.D. Cal. 2011). 21 As the Ninth Circuit teaches, it is common knowledge that depression is one 22 of the most underreported illnesses in the country because those afflicted often do 23 24 25 26 27 28 4/ The Commissioner issues Social Security Rulings [( SSRs )] to clarify the Act s implementing regulations and the agency s policies. SSRs are binding on all components of the [Social Security Administration]. SSRs do not have the force of law. However, because they represent the Commissioner s interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan v. Massanari, 246 F.3d 1195, 1203 n. 1 (9th Cir. 2001) (internal citations omitted). 9 1 not recognize that their condition reflects a potentially serious mental illness. 2 Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (holding that the claimant s 3 failure to pursue treatment did not constitute a legitimate reason for rejecting an 4 examining psychologist s opinion that the claimant suffered from a severe 5 depressive disorder). Thus, the fact that [Plaintiff] may be one of millions of 6 people who did not seek treatment for a mental disorder until late in the day is not a 7 substantial basis on which to conclude that [Dr. Adeyemo s] assessment of 8 [Plaintiff s] mental condition is inaccurate. Id. 9 Fourth, Defendant argues that the ALJ properly gave the greatest weight to 10 the opinion of [psychiatric] consultative examiner Sanford Shapiro, M.D. [( Dr. 11 Shapiro )]. (See Joint Stip. at 13-14.) However, Dr. Adeyemo issued his report 12 over two and a half years after Dr. Shapiro s assessment and therefore provided a 13 more recent evaluation of Plaintiff s mental impairments. (Compare AR at 330-34 14 with id. at 444-47); see also Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985) 15 (holding that medical evaluations prepared several months before hearing are not 16 substantial evidence sufficient to rebut more recent conclusions by treating doctor 17 where claimant suffered from a condition that was worsening). 18 Further, Dr. Shapiro reviewed only a single progress note in performing his 19 evaluation and his opinion should be afforded minimal weight. (See AR at 330 (Dr. 20 Shapiro indicating he reviewed a progress note dated 11/11/03 ); see also id. at 444 21 (Dr. Adeyemo indicating he reviewed at least nine treatment notes or medical reports 22 dated from September 4, 2007 through February 4, 2008); see 20 C.F.R. § 416.917 23 (consultative examiners should be provided with necessary background information 24 regarding the claimant s condition); see Ladue v. Chater, 1996 WL 83880, at *5 25 (N.D. Cal. 1996) (error for an ALJ to afford considerable weight to an examining 26 physician where that physician lack[s] important background information regarding 27 plaintiff ). 28 Fifth, the ALJ s adoption of the opinion of non-examining and non-treating 10 1 physician H.N. Hurwitz, M.D. ( Dr. Hurwitz ), standing alone, does not constitute 2 substantial evidence here. (AR at 28 (ALJ adopting Dr. Hurwitz s opinion), see 3 id. at 336-38 (check-box form completed by Dr. Hurwitz indicating Plaintiff does 4 not suffer from any severe mental impairments)); Lester, 81 F.3d at 832 ( In the 5 absence of record evidence to support it, the nonexamining medical advisor s 6 testimony does not by itself constitute substantial evidence that warrants a rejection 7 of . . . the examining [physician] s opinion. ); Erickson v. Shalala, 9 F.3d 813, 818 8 n. 7 (9th Cir. 1993) ( the non-examining physicians conclusion, with nothing more, 9 does not constitute substantial evidence[] ) (internal quotation marks, brackets and 10 citation omitted) (italics in original); see also Holohan v. Massanari, 246 F.3d 1195, 11 1207 (9th Cir. 2001) (opinions supported by explanation and treatment records 12 cannot be outweighed by opinion of nonexamining physician who merely checked 13 boxes without giving supporting explanations ). Sixth, Defendant argues that even if the ALJ erred in not giving greater 14 15 weight to Dr. Adeyemo s opinion, any such error was harmless. (Joint Stip. at 15.) 16 However, Defendant presents no evidence that an RFC of light work and a limitation 17 to simple, repetitive tasks necessarily include other limitations opined by Dr. 18 Adeyemo, e.g., difficulty responding appropriately to co-workers, supervisors and 19 the public. 5/ (Id. at 447); see, e.g., Stubbs-Danielson v. Astrue, 539 F.3d 1169, 20 21 5/ 22 23 24 25 26 27 28 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 20 C.F.R. §§ 404.1567(b) & 416.967(b). 11 1 1173-74 (9th Cir. 2008) (a restriction to simple, repetitive tasks adequately captured 2 deficiencies in concentration, persistence and pace). 3 Under the circumstances, the Court is persuaded that, at a minimum, the 4 record is unclear regarding Plaintiff s mental limitations. See Payan v. Chater, 959 5 F. Supp. 1197, 1205 (C.D. Cal. 1996) ( Remand is appropriate if the record is 6 incomplete and additional evidence could complete the record. ). Accordingly, the 7 Court declines to find, as is suggested by Defendant, that the ALJ s error was 8 harmless. 9 VI. 10 REMAND IS APPROPRIATE 11 This Court has discretion to remand or reverse and award benefits. McAllister 12 v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989, as amended Oct. 19, 1989). Where no 13 useful purpose would be served by further proceedings, or where the record has been 14 fully developed, it is appropriate to exercise this discretion to direct an immediate 15 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); 16 Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000, as amended May 4, 2000), 17 cert. denied, 531 U.S. 1038 (2000). Where there are outstanding issues that must be 18 resolved before a determination can be made, and it is not clear from the record that 19 the ALJ would be required to find plaintiff disabled if all the evidence were properly 20 evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 21 F.3d at 1179-80. 22 Here, remand is required because the ALJ failed to properly evaluate Dr. 23 Adeyemo s opinion. 24 Because the Court concludes that the ALJ erred in assessing Dr. Adeyemo s 25 opinion, it does not reach Plaintiff s remaining contention. (See Joint Stip. at 17-21, 26 23-24); see also Hayes v. Astrue, 270 Fed.Appx. 502, 505 (9th Cir. 2008). The ALJ 27 shall reassess the medical opinions in the record and provide sufficient reasons under 28 the applicable legal standard for rejecting any portion of the medical opinions. In 12 1 addition, if necessary, the ALJ shall obtain additional information and clarification 2 regarding Plaintiff s mental limitations. The ALJ shall then, with the assistance of a 3 VE, determine if Plaintiff can perform other work existing in significant numbers in 4 the national economy. 5 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 6 REVERSING the decision of the Commissioner denying benefits and 7 REMANDING the matter for further administrative action consistent with this 8 decision. 9 10 11 Dated: July 11, 2011 12 13 ____________________________________ 14 Hon. Jay C. Gandhi 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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