Solorzano v. Astrue, No. 5:2011cv00369 - Document 17 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For the reasons set forth above, the Agency's decision is reversed and the case is remanded for further proceedings. IT IS SO ORDERED. (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ALBERTO SOLORZANO, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 11-369-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration ( the Agency ), denying his application for 20 Supplemental Security Income ( SSI ). 21 Administrative Law Judge ( ALJ ) erred when he failed to properly 22 consider: (1) Global Assessment of Functioning ( GAF ) scores; (2) a 23 social worker s opinion; (3) Plaintiff s mother s testimony; (4) the 24 consulting psychiatrist s opinion; and (5) the vocational expert s 25 testimony. 26 reversed and the case is remanded for further proceedings consistent 27 with this decision. 28 He claims that the For the reasons discussed below, the Agency s decision is 1 II. 2 SUMMARY OF PROCEEDINGS In December 2007, Plaintiff applied for SSI, alleging that he was 3 disabled due to schizophrenia. 4 68, 335.) 5 reconsideration. 6 granted a hearing before an ALJ. 7 testified at the hearing on January 22, 2010. 8 subsequently issued a decision denying benefits. 9 Plaintiff appealed to the Appeals Council, which denied review. 10 4-6.) The Agency denied the application initially and on (AR 25-36.) 13 Plaintiff then requested and was III. A. Plaintiff appeared with counsel and (AR 332-53.) The ALJ (AR 13-22.) (AR He then commenced this action. 11 12 (Administrative Record ( AR ) 52-58, ANALYSIS The GAF Scores Throughout the course of his treatment, various mental health 14 professionals assigned Plaintiff GAF scores, ranging from a low of 21 15 to a high of 55. 16 existence of these scores but found them of limited evidentiary value 17 because they were subjective and revealed only a snapshot of 18 Plaintiff s then-current condition. 19 emphasis on the objective details and chronology of the record, 20 which he believed more accurately describe[d Plaintiff s] impairments 21 and limitations. 22 (AR 173-331.) The ALJ generally acknowledged the (AR 19.) The ALJ put more (AR 19-20.) Plaintiff takes exception to the ALJ s treatment of the GAF 23 scores. He argues that it was not proper for the ALJ to brush all of 24 the scores aside with a single stroke of the pen and that more 25 specificity was required. 26 that the ALJ s reasons for rejecting the scores -i.e., that they were 27 subjective, captured only a snapshot in time, and were inferior to the 28 more detailed records -was not sufficient to justify the ALJ s (Joint Stip. at 5-6.) 2 He argues further 1 conclusion. (Joint Stip. at 9-15.) 2 For the following reasons, the Court disagrees. 3 GAF scores are a tool used by mental health professionals to 4 quantify in a single measure a patient s overall level of functioning 5 at a given moment in time. 6 Mental Disorders, Fourth Ed., Text Revision ( DSM-IV-TR ) at 32. 7 general rule, an ALJ is not required to consider GAF scores in 8 assessing a claimant s ability to work. 9 Sec., 276 F.3d 235, 241 (6th Cir. 2002) ( While a GAF score may be of 10 considerable help to the ALJ in formulating the [residual functional 11 capacity], it is not essential to the [residual functional capacity] s 12 accuracy. 13 [residual functional capacity], standing alone, does not make the 14 [residual functional capacity] inaccurate. ). 15 scores can be probative of a claimant s mental health on a given day 16 and should at least be acknowledged by the ALJ. 17 Astrue, 2008 WL 4224952, at *5 n.2 (W.D. Okla. 2008) ( [I]t was error 18 for the administrative law judge to not at least address the GAF 19 scores and explain why they were not relevant. ) 20 See Diagnostic and Statistical Manual of See Howard v. Comm r of Soc. Thus, the ALJ s failure to reference the GAF score in the Arguably, however, GAF See, e.g., Hacker v. The ALJ acknowledged that there were GAF scores in the record and 21 explained why he was not relying on them. 22 required to do. 23 As a This was more than he was As such, he did not err. Plaintiff disagrees. He argues that the ALJ was required to 24 provide compelling reasons for discounting the scores and that he 25 failed to do so. 26 requirement. 27 required to provide reasons for discounting the scores, the ALJ s 28 justification here was sufficient to satisfy that burden. This argument is rejected because there is no such Howard, 276 F.3d at 241. 3 Even assuming that the ALJ was Clearly, as 1 Plaintiff acknowledges, GAF scores are subjective and capture only a 2 brief moment in a claimant s overall course of treatment. 3 election to put more emphasis on objective findings from a 4 longitudinal perspective is a reasonable one that the Court will not 5 second-guess. 6 The ALJ s Plaintiff argues that the Court s ruling in Dempster v. Astrue, 7 2008 WL 4381541 (C.D. Cal. Sept. 23, 2008), supports his argument that 8 reversal is mandated here. 9 Court made clear that, had the ALJ not erred in other ways, it would 10 not have remanded the case based on the ALJ s failure to mention the 11 GAF score assessed by the plaintiff s treating psychiatrist. 12 in Dempster, the ALJ had overlooked the treating psychiatrist s 13 records altogether, which compelled remand. 14 discussed the treating psychiatrist s records and acknowledged the GAF 15 scores. 16 reasons, this claim fails. 17 B. 18 Again, the Court disagrees. Id. at *2. As such, the Court finds Dempster inapposite. There, the In fact, Here, the ALJ For all these The Social Worker s Report Plaintiff was treated at times by a social worker who provided 19 counseling and therapy for his schizophrenia. 20 wrote a letter To Whom it May Concern, explaining that Plaintiff was 21 being treated at an outpatient clinic for parolees to address his 22 schizophrenia. 23 due to his condition. 24 worker s report because she was not an acceptable medical source and 25 because her opinion that Plaintiff was not capable of working was on 26 an issue left to the Agency. 27 erred in doing so. 28 extent that the social worker s opinion was her own opinion, the ALJ (AR 286.) In December 2008, she In her view, Plaintiff was unable to work (AR 286.) The ALJ discounted the social (AR 20.) Plaintiff claims that the ALJ As explained below, the Court finds that, to the 4 1 properly discounted it. 2 the ALJ to determine whether the social worker was, in fact, speaking 3 for the rest of the medical team when she offered her opinion. 4 the opinion is entitled to deference. 5 should still consider those portions of the social worker s report 6 that amount to lay testimony of observations by the social worker. 7 The issue will be remanded, however, to allow If so, Even if not, however, the ALJ Social workers are not acceptable medical sources. Wake v. 8 Comm r of Soc. Sec., 2011 WL 6192763, at *2 (9th Cir. Dec. 14, 2011). 9 As a result, in order to reject the opinion of a social worker, an ALJ 10 need only provide reasons that are germane. 11 germane reasons for rejecting the social worker s opinion. 12 to the extent that the social worker s report consists of her opinion 13 the ALJ did not err in rejecting it. 14 Id. The ALJ provided As such, Acknowledging that the social worker s opinion is not entitled to 15 much weight on its own, Plaintiff argues that the social worker was 16 part of a treatment team, which consisted of psychiatrists and 17 psychologists, and, therefore, her opinion should be elevated to that 18 of an acceptable medical source. 19 is ambiguous on this issue. 20 counsel from the same firm that represents Plaintiff in this appeal - 21 never mentioned to the ALJ his theory that the social worker s opinion 22 should be accorded the same weight as a doctor s opinion because she 23 was working closely with the doctors. 24 the issue and the Court is left addressing it for the first time in 25 this appeal. 26 issues. 27 theory to the ALJ during the administrative hearing and allowed the (Joint Stip. at 25-26.) The record Unfortunately, Plaintiff s counsel - Thus, the ALJ never explored This is obviously not the best way to handle these It would have been much better if counsel had suggested this 28 5 1 ALJ the opportunity to consider the issue and, possibly, develop the 2 record regarding it. 3 Ultimately, however, the Court finds that the record at least 4 arguably supports Plaintiff s claim here. 5 worker was working fairly closely with the doctors who were also 6 treating Plaintiff at this facility. 7 doctors and Plaintiff in some sessions. 8 the doctors and the social workers alternated their sessions with 9 Plaintiff. (AR 300-06.) It appears that the social The social worker met with the (AR 303.) At other times, The notes seem to indicate that the doctors 10 and the social worker were treating Plaintiff as a team, each taking 11 on different responsibilities. 12 however, that the doctors endorsed the social worker s view in 13 December 2008 that Plaintiff was disabled as a result of 14 schizophrenia. 15 Further development of the record is necessary to resolve the issue. 16 If the ALJ determines that the social worker s relationship was such 17 that her opinion was, essentially, the opinion of the doctors, he 18 should consider it in determining whether Plaintiff is disabled. 19 the ALJ reaches the opposite conclusion, he need not accept the 20 opinion. 21 (AR 302-06.) That is not to say, Clearly, they never signed off on the opinion. If Finally, the Court notes that, though the ALJ properly discounted 22 the social worker s conclusion that Plaintiff was disabled because 23 that is a decision left to the ALJ, he should not have simply ignored 24 the social worker s observations, e.g., that Plaintiff experiences 25 auditory hallucinations and is unable to follow simple directions. 26 See, e.g., Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993) 27 (explaining ALJ must provide germane reasons for discounting lay 28 testimony of witnesses who see claimant only occasionally because 6 1 their testimony still carries some weight ). 2 take these observations into account or explain why he chooses not to. 3 C. 4 On remand, he should Plaintiff s Mother s Testimony Plaintiff s mother testified at the administrative hearing that 5 his schizophrenia and delusions made it impossible for him to 6 function. 7 found that, as a family member and someone who would benefit from 8 increased income to the household, she was biased. 9 concluded that her testimony was not competent because she was not (AR 339-48.) The ALJ rejected this testimony because he (AR 17.) He also 10 qualified to diagnose Plaintiff s condition or to opine how it 11 impacted his ability to work. 12 erred in doing so. 13 (AR 17.) Plaintiff claims that the ALJ For the following reasons, the Court agrees.1 Testimony from a lay witness who is in a position to observe a 14 claimant s symptoms and daily activities is competent evidence. See 15 Smith v. Bowen, 849 F.2d 1222, 1226 (9th Cir. 1988) (quoting Sprague 16 v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). 17 such testimony, an ALJ must provide reasons that are germane to the 18 witness. 19 testimony as to a claimant's symptoms is competent evidence that an 20 ALJ must take into account, unless he or she expressly determines to 21 disregard such testimony and gives reasons germane to each witness for 22 doing so. (citations omitted )). In order to reject See Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) ( Lay 23 24 25 26 27 28 1 Plaintiff s mother also submitted a questionnaire in which she reported that Plaintiff was limited due to his impairment. (AR 93100.) The ALJ rejected the questionnaire because he found that it simply parroted a similar one submitted by Plaintiff. (AR 17.) Plaintiff does not appear to be challenging this finding. (Joint Stip. at 35-36.) 7 1 The ALJ s discounting of the mother s testimony based on the fact 2 that she was related to Plaintiff is arguably a germane reason for 3 questioning her credibility. 4 employ ordinary credibility evaluation techniques, Smolen v. Chater, 5 80 F.3d 1273, 1284 (9th Cir. 1996), and fact finders ordinarily 6 consider the relationship between a witness and a party when assessing 7 the witness s credibility. 8 1030 (10th Cir. 1995) (concluding alibi testimony by a defendant s 9 family members is of significantly less value than that of an 10 objective witnesses); and see Ninth Circuit Model Civil Jury 11 Instruction No. 1.11, Credibility of Witnesses ( In considering the 12 testimony of any witness, you may take into account: . . . (4) the 13 witness s interest in the outcome of the case and any bias or 14 prejudice . . . . ). 15 allowed to consider the fact that the witness is related to the 16 claimant in assessing the witness s credibility. 17 Comm r of Social Sec., 166 F.3d 1294, 1298 (9th Cir. 1999); and 18 Smolen, 80 F.3d at 1289 ( The fact that a lay witness is a family 19 member cannot be a ground for rejecting his or her testimony. ); but 20 cf. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (upholding 21 ALJ s rejection of claimant s former girlfriend s testimony based, in 22 part, on fact she had a close relationship with claimant and was 23 possibly influenced by her desire to help him). 24 in discounting the mother s testimony on this premise. 25 Generally speaking, ALJs are entitled to See, e.g., Romero v. Tansy, 46 F.3d 1024, But, at least in this circuit, ALJs are not See Regennitter v. Thus, the ALJ erred The ALJ s second reason for discounting the mother s testimony - 26 that she stood to gain financially if Plaintiff was awarded SSI--may 27 have been a valid reason for questioning her credibility. 28 Valentine v. Comm r Soc. Sec., 574 F.3d 685, 694 (9th Cir. 2009) 8 See 1 ( [E]vidence that a specific spouse exaggerated a claimant s symptoms 2 in order to get access to his disability benefits, as opposed to being 3 an interested party in the abstract, might suffice to reject that 4 spouse s testimony. ). 5 lived with her and that she supported him, his brother, and his father 6 on her income. 7 support the ALJ s finding that the mother s testimony was subject to 8 scrutiny because she had a financial interest in outcome of the case. 9 And, accepting Valentine s ambiguous language that this might be Plaintiff s mother testified that Plaintiff (AR 347-48.) Thus, there certainly is evidence to 10 enough to support a credibility finding, the Court sides with the ALJ 11 here. 12 The ALJ also rejected the mother s testimony because he found 13 that it was tantamount to a medical opinion that she was not competent 14 to make. 15 testimony centered on what Plaintiff could and could not do around the 16 house and the efforts she made to motivate him to do his chores and 17 take care of himself. 18 the ALJ should not have dismissed it because the mother also offered 19 opinions about Plaintiff s medical condition, which she was not 20 qualified to do. (AR 17.) Here the Court disagrees. (AR 339-48.) Most of the mother s This was competent evidence and See Smith, 849 F.2d at 1226. 21 In the end, only one of the three reasons the ALJ cited for 22 rejecting the mother s credibility is valid, i.e., that the mother had 23 a financial incentive in the outcome of the case. 24 applying a harmless error standard, the Court must determine whether 25 this reason alone amounts to substantial evidence to support the ALJ s 26 credibility finding. 27 1155, 1162-63 (9th Cir. 2008) (holding reviewing court must determine 28 whether remaining valid reason(s) for ALJ s questioning of claimant s In this situation, See Carmickle v. Comm r, Soc. Sec., 533 F.3d 9 1 credibility amounts to substantial evidence); and Batson v. Comm r of 2 Soc. Sec., 359 F.3d 1190, 1197 (9th Cir. 2004) (holding court must 3 evaluate ALJ s credibility finding under harmless error standard where 4 some of ALJ s reasons for rejecting credibility are rejected and some 5 are upheld). 6 support the ALJ s credibility finding, particularly in light of the 7 ambiguous language of Valentine that financial incentive might be 8 enough to question a witness s testimony. 9 on this issue. 10 11 D. The Court finds that this reason alone is not enough to As such, remand is required The ALJ s Reliance on the Examining Psychiatrist The ALJ relied on the opinion of examining psychiatrist Reynaldo 12 Abejuela to conclude that Plaintiff s psychiatric impairments were not 13 as severe as he claimed and that they did not preclude him from 14 working. 15 Dr. Abejuela did not have Plaintiff s medical records when he rendered 16 his opinion. 17 Court finds that the ALJ did not err here. 18 (AR 19-20.) Plaintiff contends that this was error because (Joint Stip. at 46.) For the following reasons, the Plaintiff has not cited any authority for the proposition that a 19 consulting doctor, or any doctor, is required to review the medical 20 records of other doctors before rendering an opinion in order for the 21 opinion to be valid. 22 ALJ is entitled to rely on the opinion of an examining doctor that is 23 supported by independent clinical findings. 24 625, 631-32 (9th Cir. 2007); see also Castaneda v. Astrue, 344 Fed. 25 App x 396, 398 (9th Cir. 2009) (holding ALJ did not err in relying on 26 examining doctor s assessment, even if doctor did not review all 27 medical records). 28 performed some rudimentary tests in order to gauge Plaintiff s In fact, under controlling Ninth Circuit law, an Orn v. Astrue, 495 F.3d Clearly, Dr. Abejuela examined Plaintiff and 10 1 condition. (AR 238-45.) Thus, his opinion was supported by 2 independent clinical findings and the ALJ s reliance on it was not in 3 error. 4 the treatment records that Dr. Abejuela did not consider were based 5 almost exclusively on Plaintiff s claimed, often feigned, symptoms. 6 For example, as the ALJ pointed out, in order to avoid being 7 transferred from one jail facility to another, Plaintiff falsely 8 claimed to jail staff that he was hearing voices. 9 records Plaintiff s statement to jail social worker that he was on This is particularly true in the context of this case where (AR 178 (chart note 10 methamphetamines while in jail and, when told he was being transferred 11 to Orange County Jail, falsely claimed that he was hearing voices so 12 he could stay where he was).) 13 and found that he was not credible. 14 finding and it is, therefore, binding in this case. 15 Plaintiff complains Dr. Abejuela failed to consider are of limited 16 value. 17 failure to consider them. 18 E. 19 The ALJ rejected Plaintiff s testimony Plaintiff has not challenged that Thus, the records In this situation, the Court cannot find error in the doctor s The Vocational Expert s Testimony Finally, Plaintiff takes exception to the vocational expert s 20 testimony that he was capable of working. He argues that the 21 testimony was infirm because the ALJ failed to include in the 22 hypothetical question to the vocational expert limitations reflected 23 in the GAF scores and the social worker s opinion and instead relied 24 on the limitations expressed by Dr. Abejuela. 25 The Court has already rejected Plaintiff s arguments relating to the 26 GAF scores and Dr. Abejuela. 27 on remand, the ALJ determines that her opinion is entitled to some (Joint Stip. at 50.) As to the social worker s opinion, if, 28 11 1 weight, he should take it into account in formulating Plaintiff s 2 residual functional capacity. 3 Plaintiff also objects to the vocational expert s testimony on 4 the ground that he failed to testify that his testimony was consistent 5 with the Dictionary of Occupational Titles ( DOT ). 6 50-51.) 7 the vocational expert s testimony and the DOT, which should have been 8 explained. 9 reasons. (Joint Stip. at Plaintiff argues that there are apparent conflicts between (Joint Stip. at 51.) This argument is rejected for two First, Plaintiff was represented by counsel at the 10 administrative hearing and, in fact, counsel questioned the vocational 11 expert. 12 with the DOT, apparent or otherwise, and never prodded the ALJ to do 13 so, either. 14 should have pointed them out at that time and not waited until now to 15 raise the issue. 16 This is particularly true in the context of social security cases like 17 this one where counsel from this firm routinely ask for fees in excess 18 of $500 per hour, sometimes in excess of $1,000 per hour, for their 19 work in these cases, signifying among other things their obvious 20 expertise in the field. 21 at administrative hearings. 22 role and to raise issues that may impact the ALJ s decision while the 23 hearing is proceeding so that they can be addressed. 24 Yet he never asked the vocational expert about any conflicts (AR 50-51.) If these conflicts were so apparent, counsel Failure to do so is tantamount to inviting error. Counsel are not supposed to be potted plants They have an obligation to take an active Second, though Plaintiff speaks of apparent conflicts, he does 25 not identify a single one, even in his response to the Agency s 26 argument that no such conflicts exist. 27 Apparently, Plaintiff thinks it is incumbent on the Court to read the 28 DOT and determine if any conflicts exist. 12 (Joint Stip. at 50-54.) Plaintiff is mistaken. It 1 is his obligation to set forth in his brief a persuasive argument as 2 to why remand is warranted on this issue. 3 Court will presume that the reason he has not identified a single 4 conflict in the 55-page joint stipulation he filed in this case is 5 because there is none. 6 failing to ask the vocational expert if there was a conflict is 7 harmless and does not merit remand. 8 1149, 1154 n.19 (9th Cir. 2007) (explaining ALJ s failure to inquire 9 about conflicts with DOT is harmless if there is no conflict).2 11 12 The As such, any error committed by the ALJ in IV. 10 He has not done so. Massachi v. Astrue, 486 F.3d CONCLUSION For the reasons set forth above, the Agency s decision is reversed and the case is remanded for further proceedings. 13 IT IS SO ORDERED. 14 DATED: January 10, 2012. 15 16 17 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 S:\PJW\Cases-Soc Sec\SOLORZANO, 369\Memorandum Opinion and Order.wpd 25 26 27 28 2 The Court has considered the occupations identified by the vocational expert and accepted by the ALJ that Plaintiff can perform and does not find any apparent or actual conflicts between Plaintiff s functional capabilities and these jobs. 13
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