Leo Tate Jr v. Michael J Astrue, No. 5:2010cv01370 - Document 16 (C.D. Cal. 2011)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is REVERSED. 2. This action is REMANDED to defendant, pursuant to Sentence Four of 42 U.S.C. §405(g), for further administrative proceedings consistent with instructions set forth in the body of the decision. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 LEO TATE, JR., 13 ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 18 No. EDCV 10-1370-CW DECISION AND ORDER The parties have consented under 28 U.S.C. § 636(c) to the 19 jurisdiction of the undersigned magistrate judge. 20 review of the denial of supplemental security income ( SSI ) benefits. 21 The court finds this matter should be reversed and remanded for 22 further administrative proceedings consistent with this decision and 23 order. 24 25 I. Plaintiff seeks BACKGROUND Plaintiff Leo Tate, Jr. was born on October 25, 1965, and was 26 42-years old at the time of his administrative hearing. 27 [Administrative Record ( AR ) 118.] 28 and no past relevant work. [AR 160.] 1 He has a high school education 1 Plaintiff alleges disability on the basis of chronic 2 pancreatitis, gall bladder stones, a dislocated shoulder/right 3 shoulder injury, and two hernias. 4 II. [AR 119, 155.] PROCEEDINGS 5 On June 5, 2008, plaintiff protectively filed an application for 6 SSI, alleging disability since his application date. [AR 118-39.] His 7 claim was denied initially and upon reconsideration. 8 9 Plaintiff requested a hearing and, on April 1, 2010, represented by an attorney, appeared and testified before Administrative Law Judge 10 ( ALJ ) Wendy Weber. [AR 23-46.] 11 medical expert ( ME ) Sammy Nafoozy, M.D., [AR 39-43], and vocational 12 expert ( VE ) Alan Barozkin. [AR 43-46.] She subsequently issued a 13 written hearing decision finding plaintiff not to be disabled under 14 the social security act (the Act ). [See AR 9-17.] 15 Council denied review, this became the Commissioner s final decision. 16 The ALJ also took testimony from When the Appeals Plaintiff lodged the complaint in this matter on September 10, 17 2010; it was filed on September 14, 2010. 18 defendant filed an answer and the certified administrative record. On 19 May 23, 2011, the parties filed a Joint Stipulation ( JS ). This 20 matter has been taken under submission without oral argument. 21 22 III. On March 18, 2011, STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner s decision to deny benefits. 24 ALJ s) findings and decision should be upheld if they are free of 25 legal error and supported by substantial evidence. 26 court determines that a finding is based on legal error or is not 27 supported by substantial evidence in the record, the court may reject 28 the finding and set aside the decision to deny benefits. 2 The Commissioner s (or However, if the See Aukland 1 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 2 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 3 F.3d 1157, 1162 (9th Cir. 4 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 5 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 6 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 7 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a 8 preponderance. Reddick, 157 F.3d at 720. 9 which a reasonable person might accept as adequate to support a Id. It is relevant evidence 10 conclusion. To determine whether substantial evidence supports 11 a finding, a court must review the administrative record as a whole, 12 weighing both the evidence that supports and the evidence that 13 detracts from the Commissioner s conclusion. 14 reasonably supports either affirming or reversing, the reviewing court 15 may not substitute its judgment for that of the Commissioner. 16 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. 17 IV. Id. If the evidence DISCUSSION 18 A. 19 To be eligible for disability benefits a claimant must THE FIVE-STEP EVALUATION 20 demonstrate a medically determinable impairment which prevents the 21 claimant from engaging in substantial gainful activity and which is 22 expected to result in death or to last for a continuous period of at 23 least twelve months. 24 721; 42 U.S.C. § 423(d)(1)(A). Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 25 Disability claims are evaluated using a five-step test: 26 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not 27 28 3 disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 1 2 3 4 5 6 7 8 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 9 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 10 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 11 C.F.R. § 404.1520, § 416.920. 12 not disabled at any step, there is no need to complete further 13 steps. 14 If a claimant is found disabled or Tackett, 180 F.3d 1098; 20 C.F.R. §§ 404.1520, 416.920. Claimants have the burden of proof at steps one through four, 15 subject to the presumption that Social Security hearings are non- 16 adversarial, and to the Commissioner s affirmative duty to assist 17 claimants in fully developing the record even if they are represented 18 by counsel. 19 1288. 20 made, and the burden shifts to the Commissioner (at step five) to 21 prove that, considering residual functional capacity ( RFC )1, age, 22 education, and work experience, a claimant can perform other work Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at If this burden is met, a prima facie case of disability is 23 1 24 25 26 27 28 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 4 1 which is available in significant numbers. Tackett, 180 F.3d at 1098, 2 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520, 416.920. 3 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 4 The ALJ found that plaintiff had not engaged in substantial 5 gainful activity since his application date (step one); that he has 6 the severe impairments of a dislocated right shoulder and a history 7 of poly-substance abuse in remission (step two); and that he did not 8 have an impairment or combination of impairments that met or equaled a 9 listing (step three). [AR 11-13.] She found that plaintiff has the 10 RFC to perform light work with the following additional limitations: 11 [L]ift and 20 pounds occasionally; 10 pounds frequently; no 12 limitations on sitting, standing, or walking; and occasional 13 above shoulder level use with right upper extremity. 14 [AR 13.] The ALJ found plaintiff has no past relevant work (step four) and 15 16 thus no transferable job skills. [AR 16.] 17 The VE testified that a person of plaintiff s age, education, and 18 RFC could perform the requirements of significant numbers of jobs in 19 the regional and national economies. [AR 16-17.] Accordingly, 20 plaintiff was found not disabled as defined by the Social Security 21 Act. [AR 17.] 22 C. 23 The parties dispute two interrelated issues, whether the ALJ 24 ISSUES IN DISPUTE properly: 25 1. Considered the opinion of plaintiff s treating psychiatrist; 26 2. Found plaintiff s mental condition to be non-severe. 27 (JS 2-3.) 28 //// 5 1 D. ISSUES: CLINICAL EVIDENCE RELATING TO MENTAL CONDITION 2 The two issues in dispute turn on plaintiff s contention that the 3 ALJ improperly discounted the opinions of Monica Gordon, M.D. his 4 treating psychiatrist at the Riverside County Department of Mental 5 Health regarding his mental functioning. 6 Dr. Gordon treated plaintiff almost monthly from March 2009 until 7 at least March 2010. [AR 556-80.] In July 2009, she completed a mental 8 work capacity evaluation form for plaintiff. [AR 555-56.] In it, she 9 notes that she found plaintiff to be credible, that he is suffering 10 from mental impairments that she expects would last at least 12 11 months, and that these impairments would likely cause him to be absent 12 from work approximately three days each month. [AR 556.] 13 opined that plaintiff s mental impairments cause marked or extreme 14 functional limitations in all but one of the sixteen separate areas 15 included on the form. [AR 555-56.] 16 She further The ALJ discussed Dr. Gordon s opinion only at step two of the 17 sequential evaluation, giving no weight to her opinions based upon a 18 finding that they were unsupported by the treatment notes which showed 19 plaintiff s symptoms improved and were stable within just a few months 20 of having started treatment. [See AR 13.] This finding was in error. The opinion of a treating physician is to be given great 21 22 deference. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (citing 23 20 C.F.R. § 404.1527; Soc. Sec. Ruling 96-2p). 24 //// 25 //// 26 //// 27 //// 28 6 Where, as here, that 1 opinion is uncontroverted,2 the ALJ may only reject a treating 2 physician s opinion for clear and convincing reasons. 3 did not meet this standard here. 4 Id. The ALJ While an ALJ may certainly reject an opinion on the basis that it 5 is contradicted or unsupported by the notes of the examination, e.g., 6 Connett v. Barnhart, 340 F.3d 871 (9th Cir. 2003), here, the treatment 7 notes are not entirely bereft of support for Dr. Gordon s work 8 capacity assessment, as the ALJ found. 9 2009, for example several months after she completed the work To the contrary, in October 10 capacity evaluation Dr. Gordon found that plaintiff s judgment was 11 impaired, that he was suffering from anxiety, paranoia, nightmares, 12 and that he had only a partial response to his medication because he 13 continued to exhibit symptoms of depression and post-traumatic stress 14 disorder. [AR 564.] 15 plaintiff was stable, he remained symptomatic continuing to 16 experience anxiety in crowds and depression with only a fair 17 response to his medication. 18 Gordon s work capacity assessment and the ALJ thus committed 19 reversible error. 20 (9th Cir. 2001)(finding substantial evidence did not support finding Similarly, in March 2010, she found that though [AR 558.] These notes support Dr. See Holohan v. Massanari, 246 F.3d 1195, 1205-06 21 22 23 24 25 26 27 2 The only other assessment of plaintiff s mental functioning limitations was made in 2007 by one-time consultative examiner Ernest Banger, III, M.D. [AR 486-89.] Dr. Banger essentially opined that at that time plaintiff had, at most, mild limitations associated with alcohol and drug dependence which would likely be quickly mitigated by treatment. [AR 486-89.] Medical opinions that predate the alleged onset of disability are of limited relevance, however, see Carmickle v. Comm r of Social Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008), particularly in a case like this one in which the prior opinion turned on conjecture about both the link between plaintiff s mental impairment and alcohol use and his potential response to treatment. Consequently, this opinion does not directly controvert Dr. Gordon s 2009 findings. 28 7 1 that opinion of treating physician conflicted with treatment notes, 2 and that the two were, in fact, consistent). 3 E. REMAND FOR FURTHER PROCEEDINGS 4 The decision whether to remand for further proceedings is within 5 the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 6 1175-1178 (9th Cir. 2000). 7 further proceedings, or where the record has been fully developed, it 8 is appropriate to exercise this discretion to direct an immediate 9 award of benefits. Where no useful purpose would be served by Harman, 211 F.3d at 1179 (decision whether to 10 remand for further proceedings turns upon their likely utility). 11 However, where there are outstanding issues that must be resolved 12 before a determination can be made, and it is not clear from the 13 record that the ALJ would be required to find the claimant disabled if 14 all the evidence were properly evaluated, remand is appropriate. 15 Id. Here, the ALJ did not specifically weigh Dr. Gordon s findings in 16 assessing plaintiff s RFC using the factors set forth in 20 C.F.R. 17 404.1527. 18 extent the mental impairments she diagnosed are severe at step two, 19 it is unable to determine whether the impairments would render 20 plaintiff incapable of any substantial gainful employment. 21 remand for further administrative proceedings is appropriate. 22 e.g., Strauss v. Comm r of Soc. Sec. Admin., 635 F.3d 1135, 1136 (9th 23 Cir. 2011) (remand for automatic payment of benefits inappropriate 24 unless evidence unequivocally establishes disability). Not only is the court unable, therefore, to gauge to what V. 25 Thus, See ORDERS 26 Accordingly, IT IS ORDERED that: 27 1. The decision of the Commissioner is REVERSED. 28 2. This action is REMANDED to defendant, pursuant to Sentence 8 1 Four of 42 U.S.C. §405(g), for further administrative proceedings 2 consistent with instructions set forth in the body of the decision. 3 4 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 5 6 7 8 DATED: June 6, 2011 _____________________________ CARLA M. WOEHRLE United States Magistrate Judge 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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