Charles Sturdevant III v. Michael J Astrue, No. 5:2011cv01179 - Document 16 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh: For these reasons, the Agency's decision is reversed and the case is remanded for further consideration. 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 CHARLES STURDEVANT III, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 11-1179-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: (1) rejected a 22 treating psychiatrist s opinion; and (2) found that Plaintiff was not 23 credible. 24 reversed and the case is remanded for further consideration. For the reasons discussed below, the Agency's decision is II. 25 26 He claims that the SUMMARY OF PROCEEDINGS In April 2007, Plaintiff applied for SSI, alleging that he was 27 disabled due to depression with psychosis, migraines, and right 28 shoulder pain. (Administrative Record ( AR ) 83, 121-23, 136.) His 1 application was denied initially and on reconsideration. 2 83-93.) 3 (AR 95, 97-98.) 4 the hearing. 5 decision denying benefits. 6 Appeals Council, which denied review. 7 followed. He then requested and was granted a hearing before an ALJ. On November 18, 2009, he appeared with counsel for (AR 46-78.) 8 9 On December 17, 2009, the ALJ issued a (AR 7-18.) III. A. (AR 79, 80, Plaintiff appealed to the (AR 1-3, 5.) This action ANALYSIS The Treating Psychiatrist s Opinion 10 Plaintiff contends that the ALJ erred when he rejected the 11 opinion of treating psychiatrist Marc Stolar, who concluded in, 12 essence, that Plaintiff s severe mental illness prevented him from 13 working. 14 finding instead that Plaintiff would be able to perform work involving 15 simple tasks that did not involve contact with the public as 16 determined by the reviewing psychiatrists. 17 following reasons, the Court concludes that further consideration of 18 this issue is warranted. 19 (AR 513.) The ALJ gave very little weight to this opinion, (AR 13-15.) For the By rule, the [Agency] favors the opinion of a treating physician 20 over non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th 21 Cir. 2007); see also Morgan v. Comm r, 169 F.3d 595, 600 (9th Cir. 22 1999) (explaining that a treating physician s opinion is given 23 deference because he is employed to cure and has a greater 24 opportunity to know and observe the patient as an individual 25 (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987))). 26 this reason, generally speaking, a treating physician s opinion that 27 is well-supported and not inconsistent with other substantial evidence 28 in the record will be given controlling weight. 2 For Orn, 495 F.3d at 631. 1 That being said, however, an ALJ is not required to simply accept 2 a treating doctor s opinion. 3 contradicted by another doctor s opinion, the ALJ is empowered to 4 reject it for specific and legitimate reasons that are supported by 5 substantial evidence in the record. 6 947, 957 (9th Cir. 2002) (quoting Magallanes v. Bowen, 881 F.2d 747, 7 751 (9th Cir. 1989)); Morgan, 169 F.3d at 600.1 8 9 Where, as here, the opinion is See Thomas v. Barnhart, 278 F.3d On September 15, 2008, Dr. Stolar completed a pre-printed, Narrative Report form, circling various options to indicate 10 Plaintiff s condition. 11 memory and judgment were intact and that he would be able to maintain 12 a sustained level of concentration and manage funds. 13 Because he had seen Plaintiff only once at the time of the report, 14 however, he indicated that it was unknown whether Plaintiff would be 15 able to sustain repetitive tasks for an extended period, adapt to new 16 or stressful situations, interact appropriately with co-workers and 17 supervisors, and complete a 40-hour work week without decompensating. 18 (AR 511.) Ultimately, he diagnosed Plaintiff with schizoaffective 19 disorder. (AR 511.) 20 (AR 511.) Dr. Stolar noted that Plaintiff s (AR 511.) In an August 7, 2009, hand-written, two-paragraph, To Whom It 21 May Concern letter, Dr. Stolar wrote that he had been treating 22 Plaintiff for one year. 23 schizoaffective disorder, but this time bipolar type. 24 Stolar also opined that, due to Plaintiff s mental illness, he would (AR 513.) He again diagnosed him with (AR 513.) Dr. 25 26 27 28 1 Dr. Stolar s opinion was contradicted by reviewing psychiatrists H.M. Skopec and Edward O Malley, both of whom determined that Plaintiff could perform simple repetitive tasks not involving contact with the public. (AR 404, 506-08.) 3 1 not be able to maintain a sustained level of concentration, perform 2 repetitive tasks for an extended period of time, interact 3 appropriately with co-workers and supervisors, or work a 40-hour week 4 without decompensating. 5 (AR 513.) The ALJ rejected Dr. Stolar s opinion because it was not 6 supported by any objective findings and did not include even the most 7 basic information, such as how often he had seen Plaintiff, 8 Plaintiff s response to medication, and whether other therapy 9 modalities had been tried. (AR 15.) The ALJ also noted that Dr. 10 Stolar had not mentioned any objective signs or symptoms to support 11 his opinion. 12 2009 that he had been treating Plaintiff for a year, he did not 13 provide any treatment notes documenting this treatment. 14 (AR 15.) Moreover, although Dr. Stolar stated in August (AR 15.) These are legitimate reasons for rejecting Dr. Stolar s opinion. 15 See Thomas, 278 F.3d at 957 (holding ALJ not required to accept 16 treating physician s opinion that is brief, conclusory, and 17 inadequately supported by clinical findings); Crane v. Shalala, 76 18 F.3d 251, 253 (9th Cir. 1996) (holding ALJ may reject check-off 19 reports that [do] not contain any explanation of the bases of their 20 conclusions. ). 21 findings. 22 record is woefully incomplete regarding Dr. Stolar s work. 23 records from Dr. Stolar are his 2008 check-the-box form and his 2009 24 letter. 25 Dr. Stolar s opinion on this record and, as explained below, both the 26 ALJ and Plaintiff should have done more to obtain the records to do 27 so. And there is support in the record for the ALJ s The problem with these findings, however, is that the (AR 511, 513.) The only It is impossible to assess the relevance of 28 4 1 The ALJ had a special duty to fully and fairly develop the 2 record. 3 This included obtaining Dr. Stolar s medical records that presumably 4 support his opinion that Plaintiff was disabled. 5 thought he needed to know the basis of [the treating doctor s] 6 opinions in order to evaluate them, he had a duty to conduct an 7 appropriate inquiry, for example, by subpoenaing the physicians or 8 submitting further questions to them. ). 9 See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). Id. ( If the ALJ Plaintiff also had a duty to obtain the records as he had the 10 burden of establishing that he is disabled. 11 F.3d 742, 746 (9th Cir. 2007) ( [A]t all times, the burden is on the 12 claimant to establish his entitlement to disability insurance 13 benefits. ) (citation omitted). 14 in the regulations and the case law, the Agency sent Plaintiff s 15 counsel -a seasoned social security lawyer--a letter in September 16 2009, reminding him of this obligation. 17 later, counsel faxed Dr. Stolar s two-paragraph letter in which Dr. 18 Stolar summarily concluded that Plaintiff was disabled. 19 This letter, by itself, is hardly worth the paper it is written on and 20 counsel should have known that. 21 Stolar prepared the day he met Plaintiff is even less valuable. 22 value of a doctor s opinion is based on underlying medical records 23 that support the opinion. 24 worth much. 25 See Parra v. Astrue, 481 Not only is this duty clearly set out (AR 232-33.) Two months (AR 512-13.) The earlier one-page opinion that Dr. The Without them, a doctor s opinion is not The weight to be attributed to a doctor s opinion is based on the 26 underlying medical records that support the opinion. Without them, 27 the opinion is not worth much. 28 benefits was a letter from a treating physician that a claimant was If all it took to obtain disability 5 1 disabled, there would be no need for the administrative process. 2 that the Agency would need to conduct its business would be a fax 3 machine, a checkbook, and a bookkeeper authorized to write checks. 4 All The Agency argues that the ALJ s decision should be affirmed 5 because he relied on reviewing psychiatrists Skopec and O Malley s 6 opinions that Plaintiff was not disabled and these opinions amounted 7 to substantial evidence. 8 these doctors did not consider Dr. Stolar s opinions, which were 9 prepared after they offered their opinions. The Court does not agree. To begin with, (AR 402-09, 506-08, 511, 10 513.) 11 that Plaintiff s doctors at Riverside Community Mental Health Clinic 12 reported that he was stable when he was compliant with his medications 13 (AR 312, 314, 315, 385, 406, 408, 468), stable is not the same as 14 unimpaired. 15 that Plaintiff was stable, they were also reporting that he was 16 hallucinating and/or having delusions. 17 would be difficult if not impossible for Plaintiff to hold down a job 18 while experiencing delusions and hallucinations even if he was 19 stable. 20 Further, though the reviewing doctors correctly pointed out For example, at times when Riverside staff were reporting (AR 312, 314.) For these reasons, remand is required. Presumably, it If Plaintiff wants the 21 Agency and the Court to seriously consider Dr. Stolar s opinion, he 22 needs to provide Dr. Stolar s records so that his opinion can be 23 evaluated. 24 should contact Dr. Stolar and obtain them on his own. If Plaintiff fails again to supply the records, the ALJ 25 26 27 28 6 If no records 1 are forthcoming and it is impossible to tell what Dr. Stolar based his 2 opinion on, the opinion should be disregarded.2 3 B. The Credibility Finding 4 Plaintiff argues that the ALJ erred when he found that Plaintiff 5 was not credible. 6 finding were inadequate. 7 reasons, the Court remands this issue as well. 8 9 He contends that the ALJ s justifications for this (Joint Stip. at 12-14.) For the following ALJs are tasked with judging the credibility of witnesses. In doing so, they may rely on ordinary credibility evaluation techniques. 10 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). 11 claimant produces objective medical evidence of an impairment that 12 reasonably could be expected to produce the alleged symptoms, an ALJ 13 may not discount the testimony without providing specific, clear and 14 convincing reasons. 15 Where a Smolen, 80 F.3d at 1281. Plaintiff testified that his short-term memory was very poor; he 16 suffered from visual hallucinations, auditory hallucinations, and 17 night terrors; and he was subject to extremes of emotions, which 18 included the desire to hit other people or himself. 19 63-64.) 20 bit but that the relief did not last long. 21 further that he thought about suicide all the time. 22 (AR 55, 57-59, He also testified that his medications helped him a little (AR 57.) He explained (AR 61.) The ALJ found that the objective evidence did not support these 23 allegations. (AR 16.) 24 claimant s testimony. This is a legitimate basis for questioning a See Molina v. Astrue, 674 F.3d 1104, 1113 (9th 25 26 27 28 2 It appears that it would also be beneficial to have a consulting psychiatrist evaluate Plaintiff and provide a report. In lieu of that, perhaps a medical expert could testify at the hearing to assist in assessing Plaintiff s condition. 7 1 Cir. 2012) (affirming ALJ s credibility determination in part because 2 claimant s allegations were undermined by doctor s reports and 3 inconsistent with other medical evidence in the record); Morgan, 169 4 F.3d at 599-600 (upholding ALJ s credibility determination in part 5 because psychiatric reports of claimant s symptoms undermined his 6 complaints). 7 ALJ s determination as his health care providers routinely found him 8 to be in relatively good condition. 9 examination noting Plaintiff s concentration was good, his memory was 10 intact, and his thought processes were normal but Plaintiff reported 11 grossly exaggerated symptoms, his mood was incongruent with his 12 reports, and the content of his reported auditory and visual 13 hallucinations were vague and grossly exaggerated. ); AR 305 (social 14 worker noted on mental status exam form that, although Plaintiff was 15 depressed and his affect flat, he was oriented times four and alert, 16 his concentration was good, and his memory was intact); AR 305 17 (Plaintiff reported to social worker that symptoms had minimized 18 since he had been compliant with his medications); AR 310-15 (treating 19 psychiatrist Patel noted that Plaintiff had no suicidal ideations and 20 his sleep was OK, generally doing well on medication, anxiety 21 decreased, no more than occasional delusions and no suicidal 22 ideations).) 23 record he relied on to reach it is incomplete because Dr. Stolar s 24 treatment records are not included. 25 consider them in evaluating Plaintiff s credibility. 26 will have that opportunity. 27 28 Furthermore, the record, as it stands, supports the (AR 329-31 (social worker upon The problem with the ALJ s finding, however, is that the Thus, the ALJ was unable to On remand, he The ALJ s second justification for questioning Plaintiff s credibility was that Plaintiff did not fully comply with his treatment 8 1 plan, failed to consistently take his psychotropic medications, and 2 failed to attend psychiatric appointments, job counseling sessions, 3 and vocational rehabilitation classes. 4 these are valid reasons for discounting a claimant s testimony. 5 Molina, 674 F.3d at 1113-14; Smolen, 80 F.3d at 1284 (explaining ALJ 6 may consider claimant s failure to follow a prescribed course of 7 treatment in evaluating credibility), and there is some support for 8 them in the record. 9 clear, however, whether Plaintiff s alleged schizoaffective-bipolar 10 disorder had any impact on his ability to follow his treatment plan. 11 See, e.g., Pate-Fires v. Astrue, 564 F.3d 935, 945-46 (8th Cir. 2009) 12 (holding ALJ cannot rely on schizoaffective/bipolar claimant s failure 13 to comply with treatment plan as evidence that she was not credible 14 since failure to comply was manifestation of schizoaffective/bipolar 15 disorder). 16 (AR 16.) Generally speaking, (AR 376, 377, 381, 384, 385, 492.) See It is not On remand, the ALJ should reconsider Plaintiff s credibility 17 based on the record before him at that time. 18 will take into account Plaintiff s compliance or lack thereof with his 19 treatment program, he should explain how Plaintiff s condition does or 20 does not impact his ability to comply with the program. 21 22 23 24 25 26 27 28 9 Assuming that the ALJ 1 2 3 IV. CONCLUSION For these reasons, the Agency s decision is reversed and the case is remanded for further consideration.3 4 IT IS SO ORDERED. 5 DATED: October 17, 2012 6 7 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 S:\PJW\Cases-Soc Sec\STURDEVANT, 1179\memo opinion and order.wpd 26 27 28 3 The Court has considered Plaintiff s request that the case be remanded for an award of benefits and finds that this relief is not warranted here because it is not clear whether Plaintiff is disabled. 10
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