Barry D. Wilson v. Michael J. Astrue, No. 5:2011cv00614 - Document 19 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 BARRY D. WILSON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 11-00614-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on April 27, 2011, seeking review of 19 the denial by the Social Security Commissioner ( Commissioner ) of 20 plaintiff s application for supplemental security income ( SSI ). 21 May 13, 2011, the parties consented, pursuant to 28 U.S.C. § 636(c), to 22 proceed before the undersigned United States Magistrate Judge. 23 parties filed a Joint Stipulation on February 16, 2012, in which: 24 plaintiff seeks an order reversing the Commissioner s decision and 25 awarding 26 administrative proceedings; and the Commissioner requests that his 27 decision 28 administrative proceedings. benefits be or, affirmed alternatively, or, alternatively, remanding remanded for for On The further further 1 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 2 3 On February 25, 2008, plaintiff filed an application for SSI, 4 alleging an inability to work since January 1, 2000, due to his mental 5 condition. 6 past relevant work experience as a commercial/industrial cleaner and 7 as a sales clerk for illegal drugs. (Administrative Record ( A.R. ) 19, 121.) Plaintiff has (A.R. 25.) 8 9 The Commissioner denied plaintiff s application initially and upon 10 reconsideration. (A.R. 19, 51-55, 57-61.) On February 3, 2010, 11 plaintiff, who was represented by counsel, appeared and testified at a 12 hearing before Administrative Law Judge Joseph Schloss (the ALJ ). 13 (A.R. 19, 29-48.) 14 (Id.) 15 and the Appeals Council subsequently denied plaintiff s request for 16 review of the ALJ s decision (A.R. 1-6). 17 in this action. Vocational expert Sandra Fioretti also testified. On March 19, 2010, the ALJ denied plaintiff s claim (A.R. 19-25), That decision is now at issue 18 19 SUMMARY OF ADMINISTRATIVE DECISION 20 21 The ALJ found that plaintiff has not engaged in substantial gainful 22 activity since February 25, 2008, his application date. (A.R. 21.) The 23 ALJ determined 24 disorder, but he does not have any impairment or combination of 25 impairments that meet or medically equal one of the listed impairments 26 in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 27 416.925 and 416.926). that plaintiff has (Id.) 28 2 the severe impairment of mood 1 After reviewing the record, the ALJ determined that plaintiff has 2 the residual functional capacity ( RFC ) to perform a full range of work 3 at 4 limitation: [plaintiff] can perform simple repetitive tasks as well as 5 moderately complex tasks. all exertional levels but with the following non-exertional (A.R. 22.) 6 7 The ALJ found that plaintiff s past relevant work, as a 8 commercial/industrial cleaner and as a sales clerk for illegal 9 drugs, does not require the performance of work-related activities 10 precluded by 11 concluded that plaintiff has not been under a disability, as defined in 12 the 13 application was filed. Social plaintiff s Security RFC. Act, (A.R. since 25.) February Accordingly, 25, 2008, the the date ALJ his (Id.) 14 15 STANDARD OF REVIEW 16 17 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 18 decision to determine whether it is free from legal error and supported 19 by substantial evidence. 20 2007). Substantial evidence is such relevant evidence as a reasonable 21 mind might accept as adequate to support a conclusion. 22 omitted). 23 necessarily a preponderance. 24 (9th Cir. 2003). 25 substantial evidence, only those reasonably drawn from the record will 26 suffice. 27 2006)(citation omitted). Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. Id. (citation The evidence must be more than a mere scintilla but not Connett v. Barnhart, 340 F.3d 871, 873 While inferences from the record can constitute Widmark v. Barnhart, 28 3 454 F.3d 1063, 1066 (9th Cir. 1 Although this Court cannot substitute its discretion for that of 2 the Commissioner, the Court nonetheless must review the record as a 3 whole, weighing both the evidence that supports and the evidence that 4 detracts from the [Commissioner s] conclusion. 5 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 6 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 7 responsible for determining credibility, resolving conflicts in medical 8 testimony, and for resolving ambiguities. 9 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 10 11 The Court will uphold the Commissioner s decision when the evidence 12 is susceptible to more than one rational interpretation. Burch v. 13 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 14 review only the reasons stated by the ALJ in his decision and may not 15 affirm the ALJ on a ground upon which he did not rely. 16 at 630; see also Connett, 340 F.3d at 874. 17 the Commissioner s decision if it is based on harmless error, which 18 exists only when it is clear from the record that an ALJ s error was 19 inconsequential to the ultimate nondisability determination. Robbins 20 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 21 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 22 at 679. However, the Court may Orn, 495 F.3d The Court will not reverse 23 24 DISCUSSION 25 26 Plaintiff alleges the following issues: (1) whether the ALJ 27 properly considered the presence of a severe physical impairment; 28 (2) whether the ALJ properly considered 4 the opinion of treating 1 psychiatrist Donna Barrozo, M.D.; and (3) whether the ALJ properly 2 considered plaintiff s testimony. (Joint Stipulation ( Joint Stip. ) at 3 3.) 4 5 I. The ALJ Failed To Properly Consider The Opinion Of 6 Treating Physician Lilybeth Sistoza, M.D., In Determining 7 Whether Plaintiff Has A Severe Physical Impairment. 8 9 The opinions of treating physicians are entitled to the greatest 10 weight, because the treating physician is hired to cure and has a better 11 opportunity to observe the claimant. Magallanes v. Bowen, 881 F.2d 747, 12 750 (9th Cir. 1989). 13 contradicted by another physician, it may be rejected only for clear 14 and convincing reasons. 15 1995)(as amended). When a treating physician s opinion is not Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 16 17 Here, the ALJ failed to give proper weight to the opinion of 18 plaintiff s treating physician Dr. Lilybeth Sistoza. 19 2009, 20 indicates that: 21 and/or walking 2 hours in an 8-hour workday and sitting 2 hours in an 8- 22 hour 23 occasionally and that he would miss at least 2 days of work per month 24 due to his impairments. 25 that he gave very little weight to Dr. Sistoza s opinion, for several 26 reasons. Dr. Sistoza workday, completed a physical RFC On December 23, questionnaire, which [plaintiff] s capabilities are limited to standing and plaintiff can lift/carry 10 pounds (A.R. 24; citing A.R. 320-23.) or less The ALJ stated (A.R. 24.) 27 28 The first reason proffered by the ALJ as a basis for discrediting 5 1 Dr. Sistoza s opinion is the ALJ s asserted inability to find Dr. 2 Sistoza s signature anywhere in plaintiff s treatment records. 3 misstates the record in asserting that: 4 [plaintiff] s 5 although her signature does not appear in those treatment records. 6 (A.R. 24.) 7 signature appears on many of plaintiff s treatment records, including 8 Fontana Family Medical Center Progress Notes ( Progress Notes ) dated 9 December 11, 2008, February 24, 2009, and September 14, 2009. treating physician at The ALJ Dr. Sistoza purports to be Fontana Family Medical Center A simple review of the record reveals that Dr. Sistoza s (A.R. 10 323, 262-64, 268-69, and 275.) Consequently, the ALJ s statement is 11 factually incorrect and, thus, cannot support his finding that plaintiff 12 lacks credibility. See Regennitter v. Commissioner, 166 F.3d 1294, 1297 13 (9th Cir. 1999)(the ALJ s inaccurate characterization of the evidence 14 to support his adverse credibility finding warranted reversal). 15 16 Further, if the ALJ questioned whether there was an objective basis 17 for Dr. Sistoza s opinion, the ALJ should have conducted an appropriate 18 inquiry by re-contacting Dr. Sistoza. 19 to investigate the facts and develop the arguments both for and against 20 granting benefits. 21 also, Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)( [i]f the ALJ 22 thought he needed to know the basis of [the doctors ] opinions in order 23 to evaluate them, he had a duty to conduct an appropriate inquiry ); 24 Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1993)(the ALJ has a 25 special duty to fully and fairly develop the record and to assure that 26 the claimant s interests are considered ); 20 C.F.R. § 416.912(e)(when 27 a medical source s report contains a conflict or ambiguity, the Social 28 Security Indeed, [i]t is the ALJ s duty Sims v. Apfel, 530 U.S. 103, 110-11 (2000); see Administration will seek 6 additional evidence or 1 classification ). 2 3 Second, the ALJ concluded that Dr. Sistoza s opinion, as set forth 4 in the physical RFC questionnaire, is not supported by the Fontana 5 Family 6 [plaintiff], upon physical examination, was found to be normal on all 7 areas addressed by Dr. Sistoza. (A.R. 24; internal citations omitted.) 8 However, the ALJ s statement that plaintiff had only normal findings 9 also is not supported by the record. Medical Center treatment records[,] which indicated that In the Progress Notes dated 10 September 14, 2009, Dr. Sistoza noted an abnormal finding related to 11 plaintiff s eyes. 12 the remaining categories in each of the Progress Notes were marked 13 either normal or not examined, the September 14, 2009 Progress Notes 14 noted plaintiff s history of hypertension and hyperlipidemia. 15 Moreover, Dr. Sistoza noted that plaintiff was obese, and she diagnosed 16 him with hypertrophic cardiomyopathy. (Id.) In view of these findings, 17 which were overlooked by the ALJ, the ALJ s rejection of Dr. Sistoza s 18 opinion on the ground that the treatment records showed that plaintiff 19 was normal on all areas was inaccurate and, thus, was not clear and 20 convincing. (A.R. 275.) Further, while the ALJ is correct that (Id.) 21 22 Neither reason cited by the ALJ for rejecting Dr. Siztoza s opinion 23 was clear and convincing. 24 opinion was error. 25 /// 26 /// 27 /// 28 Thus, the ALJ s treatment of Dr. Soztoza s /// 7 1 II. The ALJ Failed To Set Forth The Requisite Specific And 2 Legitimate Reasons For Rejecting 3 The Opinion Of Plaintiff s Treating Psychiatrist. 4 5 When the ALJ rejects the opinion of a treating physician that has 6 been contradicted, the ALJ may reject that opinion only by providing 7 specific and legitimate reasons for doing so, supported by substantial 8 evidence in the record. 9 physician opinions considered in assessing a social security claim, 10 [g]enerally, a treating physician s opinion carries more weight than an 11 examining physician s, and an examining physician s opinion carries more 12 weight than a reviewing physician s. 13 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 416.927. 14 reasons will not suffice for rejecting the treating physician s opinion. 15 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). Lester, 81 F.3d at 830. In the hierarchy of Holohan v. Massanari, 246 F.3d Broad and vague 16 17 On October 29, 2009, Dr. Donna Barrozo, M.D., plaintiff s treating 18 psychiatrist, completed a mental RFC questionnaire, in which she opined 19 that plaintiff has marked or extreme limitations in his mental RFC 20 in the categories of understanding and memory, sustained concentration 21 and 22 96.) 23 days of work a month as a result of these limitations. 24 ALJ also gave 25 responses, because [t]he treatment notes from exactly the same time 26 period 27 questionnaire. 28 opinion of the State Agency reviewing mental health consultants. (Id.) persistence, social interaction, and adaptation. (A.R. 295- Dr. Barrozo also opined that plaintiff would miss more than four very completely little contradict (A.R. 24.) weight the to Dr. responses (A.R. 296.) The Barrozo s questionnaire on the mental [RFC] Instead, the ALJ gave great weight to the 8 1 Contrary to the ALJ s finding, the information Dr. Barrozo provided 2 in the questionnaire is not necessarily inconsistent with her treatment 3 notes. 4 May 20, June 29, September 8, October 19, and November 16, 2009, which 5 indicate, with regard to auditory and visual hallucinations, that 6 plaintiff has few or none at this time and that plaintiff s depression 7 had improved. 8 limitations in such categories completely contradict Dr. Barrozo s 9 April 20, to November 16, 2009 treatment notes. The ALJ relied on Dr. Barrozo s treatment notes dated April 20, (A.R. 311-19.) The ALJ, however, fails to explain how (A.R. 24.) An absence 10 of auditory or visual hallucinations on the date Dr. Barrozo examined 11 plaintiff and wrote these treatment notes would not preclude a finding 12 that plaintiff has a limitation in, for example, the ability to 13 remember locations and work-like procedures. (A.R. 295.) 14 is not experiencing hallucinations does not, ipso facto, mean that he 15 also does not suffer from any mental health issues. 16 improvement in plaintiff s depression does not establish that plaintiff 17 would not be limited in the ways indicated by Dr. Barrozo s treatment 18 notes. 19 Dr. Barrozo s opinion, the ALJ should have conducted an appropriate 20 inquiry by re-contacting Dr. Barrozo. 21 see also Smolen, 80 F.3d at 1288; Brown, 713 F.2d at 443. That someone Similarly, an If the ALJ questioned whether there was an objective basis for See Sims, 530 U.S. at 110-11; 22 23 Significantly, the ALJ fails to acknowledge that, on the same page 24 of Dr. Barrozo s treatment notes as that on which the ALJ relies, Dr. 25 Barrozo also opined that plaintiff is unable to work -- an opinion 26 that is consistent with, rather than contrary to, her questionnaire 27 findings. (A.R. 312.) 28 questionnaire that plaintiff s GAF score is 40, and Dr. Barrozo s Further, the ALJ overlooks the finding in the 9 1 treatment notes indicate that plaintiff s GAF score is 40-501 -- again, 2 findings that are consistent. 3 conclusion that the treatment notes from exactly the same time period 4 completely contradict the responses on the mental [RFC] questionnaire 5 is factually incorrect and unpersuasive, and it does not constitute a 6 specific and legitimate ground for rejecting Dr. Barrozo s opinion. 7 (A.R. 24.) (A.R. 292, 312.) Thus, the ALJ s 8 9 Had Dr. Barrozo s opinion been considered properly, her opinion as 10 that of a treating physician should have carried more weight than that 11 of the State agency physician. 12 that generally greater weight is afforded to treating physicians, as 13 they are likely the medical professionals most able to provide a 14 detailed, longitudinal picture of the claimant s medical impairment(s) 15 and may bring a unique perspective to the medical evidence that cannot 16 be obtained from objective medical findings alone or from reports of 17 individual examinations, such as consultative examinations). 18 as a treating physician specializing in psychiatry, Dr. Barrozo s 19 opinion should have been given additional weight. 20 § 416.927(d)(5); see, e.g., Benecke v. Barnhart, 379 F.3d 587, 594 n.4 21 (9th Cir. 2004)(stating that opinion of specialist about medical issues See 20 C.F.R. § 416.927 (d)(2) (stating Further, See 20 C.F.R. 22 1 23 24 25 26 27 28 The GAF scale [c]onsider[s] psychological, social, and occupational functioning on a hypothetical continuum of mental healthillness. Diagnostic and Statistical Manual of Mental Disorders, DSMIV-TR, 34 (rev. 4th ed. 2000). A rating of 31-40 reflects [s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work . . . ). Id. A rating of 41-50 reflects [s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. 10 1 related to that specialist s area of specialty is to be given greater 2 weight). 3 4 III. The ALJ Failed To Give Clear And Convincing Reasons For 5 Finding Plaintiff s Testimony To Be Not Credible. 6 7 Once a disability claimant produces objective medical evidence of 8 an underlying impairment that is reasonably likely to be the source of 9 claimant s subjective symptom(s), all subjective testimony as to the 10 severity of the symptoms must be considered. 11 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 12 (9th Cir. 1991); see also 20 C.F.R. § 416.929(a) (explaining how pain 13 and other symptoms are evaluated). 14 malingering based on affirmative evidence thereof, he or she may only 15 find an applicant not credible by making specific findings as to 16 credibility 17 Robbins, 466 F.3d at 883. 18 claimant s credibility include: 19 truthfulness; (2) inconsistencies either in the claimant s testimony or 20 between the claimant s testimony and her conduct; (3) the claimant s 21 daily activities; (4) the claimant s work record; and (5) testimony from 22 physicians and third parties concerning the nature, severity, and effect 23 of the symptoms of which the claimant complains. 24 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 20 C.F.R. 25 § 416.929(c). and stating clear Moisa v. Barnhart, 367 [U]nless an ALJ makes a finding of and convincing reasons for each. The factors to be considered in weighing a (1) the claimant s reputation for See Thomas v. 26 27 The ALJ found that plaintiff s medically determinable impairment 28 could reasonably be expected to result in the assessed limitations 11 1 (A.R. 24.) However, the ALJ cited no evidence of malingering by 2 plaintiff. Accordingly, the ALJ s reason for rejecting plaintiff s 3 credibility must be clear and convincing. 4 5 The ALJ failed to explicitly state precisely why he found plaintiff 6 not credible. 7 justify 8 plaintiff s poor compliance with treatment, his criminal history, and 9 his performance at the consultative examination with Dr. Suzanne Ashman the the ALJ While the Commissioner now offers several reasons to ALJ s did adverse not credibility 11 credibility 12 rationalizations now proffered by the Commissioner. See, e.g., Orn, 495 13 F.3d at 630 ( We review only the reasons provided by the ALJ in the 14 disability determination and may not affirm the ALJ on a ground upon 15 which he did not rely ); Connett, 340 F.3d at 874 (finding that [i]t 16 was error for the district court to affirm the ALJ s credibility 17 decision based on evidence that the ALJ did not discuss ). Court such cannot factors as including -- The any -- 10 finding. identify determination entertain supporting these post his hoc 18 19 The ALJ s failure to make specific findings regarding plaintiff s 20 credibility, much less to proffer clear and convincing reasons to 21 support his adverse credibility determination, constitutes reversible 22 error. 23 24 IV. Remand Is Required. 25 26 The decision whether to remand for further proceedings or order an 27 immediate award of benefits is within the district court s discretion. 28 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 12 Where no 1 useful purpose would be served by further administrative proceedings, or 2 where the record has been fully developed, it is appropriate to exercise 3 this discretion to direct an immediate award of benefits. 4 ( [T]he decision of whether to remand for further proceedings turns upon 5 the likely utility of such proceedings. ). 6 outstanding issues that must be resolved before a determination of 7 disability can be made, and it is not clear from the record that the ALJ 8 would be required to find the claimant disabled if all the evidence were 9 properly evaluated, remand is appropriate. Id. at 1179 However, where there are Id. at 1179-81. 10 11 Remand is the appropriate remedy to allow the ALJ the opportunity 12 to remedy the above-mentioned deficiencies and errors. See, e.g., 13 Benecke, 379 F.3d at 593 (remand for further proceedings is appropriate 14 if enhancement of the record would be useful); see Dodrill v. Shalala, 15 12 F.3d 915, 918 (9th Cir. 1993)(ordering remand so that the ALJ could 16 articulate specific and appropriate findings, if any existed, for 17 rejecting the claimant s subjective pain testimony). 18 19 On remand, the ALJ should revisit his consideration of the various 20 medical opinions. Additionally, to the extent necessary, the ALJ should 21 develop the record further to resolve any conflicts or ambiguities with 22 respect to the treatment records and RFC questionnaires. 23 should the ALJ again find plaintiff to lack credibility, the ALJ must 24 set forth clear and convincing reasons for any such adverse credibility 25 determination. 26 /// 27 /// 28 /// 13 In addition, 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: July 26, 2012 14 15 16 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 14
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