Ramsey Thompson v. Michael J Astrue, No. 5:2012cv00265 - Document 16 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)

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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 17 RAMSEY THOMPSON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY, ) ) ) Defendant. ) ) ___________________________________) NO. ED CV 12-265-E MEMORANDUM OPINION AND ORDER OF REMAND 18 19 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 20 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 21 judgment are denied and this matter is remanded for further 22 administrative action consistent with this Opinion. 23 24 PROCEEDINGS 25 26 Plaintiff filed a complaint on February 29, 2012, seeking review 27 of the Commissioner s denial of disability benefits. The parties 28 filed a consent to proceed before a United States Magistrate Judge on 1 March 13, 2012. Plaintiff filed a motion for summary judgment on 2 August 1, 2012. Defendant filed a cross-motion for summary judgment 3 on August 31, 2012. 4 without oral argument. The Court has taken the motions under submission See L.R. 7-15; Order, filed March 5, 2012. 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 9 Plaintiff, a former nurse s aide, asserts disability since February 1, 2004, based on alleged depression, visual hallucinations, 10 anxiety, psych issues and hyernia [sic] (Administrative Record 11 ( A.R. ) 33, 52, 138, 145, 170). 12 determined that Plaintiff suffers from severe drug induced psychosis 13 with schizoaffective features, personality disorder with antisocial 14 features, and a history of polysubstance dependence up to 2008 15 (A.R. 12 (adopting medical expert testimony at A.R. 49-50)). 16 found that Plaintiff retains the residual functional capacity to 17 perform work at all exertion levels, limited to moderately complex 18 tasks up to 4 to 5 steps in an object oriented environment, [no being] 19 in charge of safety operations, and no operating hazardous machinery 20 (A.R. 13 (adopting medical expert testimony at A.R. 50)). 21 found that, with this capacity, Plaintiff could perform jobs as a hand 22 packager or product assembler, and therefore was not disabled (A.R. 19 23 (adopting vocational expert testimony at A.R. 53)). 24 Council denied review (A.R. 1-3). The Administrative Law Judge ( ALJ ) The ALJ The ALJ The Appeals 25 26 In finding Plaintiff not disabled, the ALJ acknowledged that the 27 consultative examining psychiatrist, Dr. Ernest Bagner III, opined 28 Plaintiff would have, inter alia, mild to moderate limitations 2 1 handling normal stresses at work and completing a normal workweek 2 without interruption. 3 evaluations at A.R. 335-38, 439-42). 4 whether the ALJ accepted or rejected Dr. Bagner s opinions regarding 5 these specific limitations. 6 functional capacity opinion, the ALJ stated only that the 7 consultative examiner found similar limitations (A.R. 18). See A.R. 16-17 (summarizing Dr. Bagner s The ALJ did not state explicitly In adopting the medical expert s residual 8 9 Plaintiff argues that, in determining Plaintiff s residual 10 functional capacity, the ALJ failed to consider properly Dr. Bagner s 11 mild to moderate limitations. 12 Plaintiff suggests that the ALJ implicitly rejected these limitations 13 without stating sufficient reasons for doing so. 14 argues that there is no evidence that the ALJ rejected Dr. Bagner s 15 opinions. 16 Plaintiff has not demonstrated any inconsistency between Dr. Bagner s 17 opinions and the ALJ s residual functional capacity assessment. See Plaintiff s Motion, pp. 3-4. Defendant s Motion, p. 4. Id. Defendant Defendant also argues that Id. 18 19 STANDARD OF REVIEW 20 21 Under 42 U.S.C. section 405(g), this Court reviews the 22 Administration s decision to determine if: (1) the Administration s 23 findings are supported by substantial evidence; and (2) the 24 Administration used correct legal standards. 25 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 26 499 F.3d 1071, 1074 (9th Cir. 2007). 27 relevant evidence as a reasonable mind might accept as adequate to 28 support a conclusion. See Carmickle v. Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 3 1 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454 2 F.3d 1063, 1067 (9th Cir. 2006). 3 4 DISCUSSION 5 6 The extent to which the ALJ accepted or rejected Dr. Bagner s 7 opinions is unclear. As noted above, the ALJ stated only that Dr. 8 Bagner found limitations similar to those the ALJ adopted from the 9 medical expert. See A.R. 18. As discussed below, it is unclear 10 whether Dr. Bagner s limitations are, in fact, similar to those the 11 ALJ adopted from the medical expert. 12 13 I. 14 Summary of Dr. Bagner s Examinations, State Agency Physician Review, and the Medical Expert s Related Testimony. 15 16 Dr. Bagner examined Plaintiff twice. See A.R. 335-38 (April 29, 17 2009 psychiatric evaluation), A.R. 439-42 (February 23, 2010 18 psychiatric evaluation). 19 reported that he quit using methamphetamine two years earlier (A.R. 20 336). 21 otherwise specified, and indicated a need to rule out anti-social 22 personality disorder (A.R. 337). 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// During the April 2009 examination, Plaintiff Dr. Bagner diagnosed Plaintiff with a mood disorder, not Dr. Bagner assigned a GAF score of 4 1 71,1 and opined that Plaintiff: (1) would have no limitations 2 interacting with supervisors, peers, or the public; (2) would have 3 zero to mild limitations maintaining concentration and attention or 4 completing simple tasks; (3) would have mild limitations completing 5 complex tasks; and (4) would have mild to moderate limitations 6 handling normal stresses at work and completing a normal workweek 7 without interruption (A.R. 337-38 (emphasis added)). 8 not translate these limitations into a residual functional capacity 9 assessment. Dr. Bagner did 10 11 During the February 2010 evaluation, Plaintiff reported having a 12 smoking habit, but denied any history of alcohol or illicit drug abuse 13 (A.R. 440; compare A.R. 290, 336 (Plaintiff s reported history of drug 14 use)). 15 disorder, not otherwise specified (A.R. 441). 16 Plaintiff had the same limitations found in the first evaluation, 17 except that Plaintiff would now have mild to moderate limitations 18 completing complex tasks in addition to the mild to moderate 19 limitations handling normal stresses at work and completing a normal 20 work week without interruption (A.R. 442 (emphasis added)). 21 Bagner did not translate these limitations into a residual functional Once again, Dr. Bagner diagnosed Plaintiff with a mood Dr. Bagner opined that Dr. 22 1 23 24 25 26 27 28 Clinicians use the GAF scale to report an individual s overall psychological functioning. The scale does not evaluate impairments caused by physical or environmental factors. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders ( DSM-IV-TR ) 34 (4th Ed. 2000 (Text Revision)). A GAF of 71 and 80 indicates that, [i]f symptoms are present, they are transient and expectable reactions to psycho-social stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). Id. 5 1 capacity assessment. Dr. Bagner predicted that, if Plaintiff 2 continues psychiatric treatment, he should be significantly better in 3 less than six months (A.R. 442). 4 State agency physician R. E. Brooks, M.D., reviewed the medical 5 6 record (including Dr. Bagner s April 2009 evaluation) and completed a 7 Psychiatric Review Technique form dated May 20, 2009 (A.R. 339-49). 8 Dr. Brooks opined that Plaintiff would have mild difficulties in 9 maintaining concentration, persistence, or pace, but noted no other 10 limitations (A.R. 347). Dr. Brooks later completed a Mental Residual 11 Functional Capacity Assessment form dated March 11, 2010 (A.R. 443- 12 45). 13 moderate limitations in his ability to: (1) understand, remember, and 14 carry out detailed instructions; (2) complete a normal workday or 15 workweek without interruptions from psychologically based symptoms and 16 perform at a consistent pace without an unreasonable number and length 17 of rest periods; and (3) respond appropriately to changes in the work 18 setting (A.R. 443-44).2 19 which may have been inclusive of Dr. Bagner s mild to moderate 20 limitations handling normal stresses at work, completing complex 21 tasks, and completing a normal workweek without interruption into 22 the following mental residual functional capacity: 23 /// In this form, Dr. Brooks opined that Plaintiff would have Dr. Brooks translated these limitations 24 25 26 27 28 2 The two forms Dr. Brooks completed use different measures for limitations. The Psychiatric Review Technique form uses none, mild, moderate, marked, and extreme as possible degrees of limitation. See A.R. 347. The Mental Residual Functional Capacity Assessment form uses not significantly limited, moderately limited, and markedly limited as possible degrees of limitation. See A.R. 443-44. 6 1 Claimant retains the ability to understand, remember, and 2 carry out simple work-related tasks, and has no significant 3 limitations in the ability to sustain concentration/ 4 persistence/pace, relate to others, or otherwise adapt to 5 the requirements of the normal workplace. 6 7 (A.R. 445). 8 9 The medical expert, clinical psychologist Dr. Joseph 10 Malancharuvil, reviewed the record and opined that without drugs and 11 alcohol Plaintiff would have: (1) only mild limitations in his 12 activities of daily living and social functioning; (2) only moderate 13 limitations in his cognitive perception, persistence, or pace; and 14 (3) no actual deterioration in the work setting (A.R. 50). 15 Malancharuvil testified that Plaintiff would have the following 16 functional capacity: Dr. 17 18 The claimant is certainly capable of moderately complex 19 tasks easily up to four to five step instructions, and 20 object oriented work. 21 operations because of the reported hallucinations of sensory 22 disturbances, and I also would preclude him from operating 23 hazardous machinery, and that is consistent with the record 24 overall. . . . He is precluded form safety 25 26 (A.R. 50). Dr. Malancharuvil stated that Exhibit 3F, Dr. Bagner s 27 initial evaluation, talks about mood disorder and antisocial 28 personality disorder with a relatively high GAF of 71, and that 7 1 Exhibit 9F, Dr. Bagner s second evaluation, was remarkably the same 2 as the April evaluation, of a mood disorder with none to mild 3 functional limitations. 4 Dr. Malancharuvil did not mention Dr. Bagner s mild to moderate 5 limitations or Dr. Brooks opinions. 6 Malancharuvil regarding these matters. See A.R. 50-51 (citing A.R. 335-38, 439-42). Nor did the ALJ inquire of Dr. See A.R. 50-51. 7 8 II. 9 The ALJ Did Not Properly Account for the Consultative Psychiatrist s Opinions in Determining Plaintiff s Residual 10 Functional Capacity. 11 12 In determining Plaintiff s residual functional capacity, the ALJ 13 did not state explicitly whether the ALJ was accepting or rejecting 14 the limitations Dr. Bagner found to exist. 15 decision). 16 medical expert considered Dr. Bagner s mild to moderate limitations, 17 the ALJ s omission was error. 18 considered Dr. Bagner s opinions and explained any bases for rejecting 19 those opinions, or should have clarified with the medical expert 20 whether the residual functional capacity the expert found to exist 21 accounted for Dr. Bagner s mild to moderate limitations. 22 Security Ruling 96-6p (ALJs must explain the weight given to the 23 opinions of state agency physicians); accord Bain v. Astrue, 319 Fed. 24 App x 543, 546 (9th Cir. 2009); Sawyer v. Astrue, 303 Fed. App x 25 /// 26 /// 27 /// 28 /// See A.R. 18 (ALJ s Given the ambiguity in the record regarding whether the The ALJ should have expressly 8 See Social 1 453, 455 (9th Cir. 2008);3 see also Vincent v. Heckler, 739 F.2d 1393, 2 1394-95 (9th Cir. 1984) (ALJ must provide an explanation when the ALJ 3 rejects significant probative evidence ). 4 5 Defendant argues that Plaintiff has not demonstrated that the 6 ALJ s residual functional capacity assessment is inconsistent with Dr. 7 Bagner s findings. 8 could competently opine whether the residual functional capacity is 9 consistent with Dr. Bagner s findings.4 See Defendant s Motion, p. 4. Only an expert Dr. Malancharuvil s testimony 10 is ambiguous in this regard. The only competent evidence in the 11 record that may shed light on whether the ALJ s residual functional 12 capacity is consistent with Dr. Bagner s findings is Dr. Brooks 13 March 11, 2010 Mental Residual Functional Capacity Assessment, which 14 the ALJ also did not discuss. 15 some moderate limitations, Dr. Brooks opined that Plaintiff retained 16 the ability to understand, remember, and carry out simple tasks (A.R. 17 444-45). 18 more limited than the assessment of Dr. Malancharuvil, who found 19 Plaintiff capable of performing moderately complex tasks easily up to 20 four to five step instructions . 21 assessment) with A.R. 444-45 (Dr. Brooks assessment). 22 /// See A.R. 443-45 (assessment). Finding Dr. Brooks defined a residual functional capacity that is Compare A.R. 50 (Dr. Malancharuvil s 23 3 24 25 26 27 28 The Court may cite unpublished Ninth Circuit opinions issued on or after January 1, 2007. See U.S. Ct. App. 9th Cir. Rule 36-3(b); Fed. R. App. P. 32.1(a). 4 Compare Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (ALJ could translate claimant s condition involving mental limitations into concrete residual functional capacity where there existed a basis in the medical record for doing so (i.e., supporting medical opinions)). 9 1 On the present record, the Court cannot determine whether the 2 ALJ s error in failing to discuss Dr. Bagner s opinions was harmless. 3 See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) ( [A]n ALJ s 4 error is harmless where it is inconsequential to the ultimate non- 5 disability determination. ) (citations and quotations omitted). 6 Bagner stated that Plaintiff would have mild to moderate limitations 7 completing complex tasks, handling normal stresses at work, and 8 completing a normal work week without interruption (A.R. 442). 9 Assuming that Plaintiff could do moderately complex tasks up to 4 to Dr. 10 5 steps as the ALJ found, there is insufficient evidence that 11 Plaintiff could do so at a pace necessary to sustain competitive 12 employment. 13 Jan. 12, 2009) (on remarkably similar facts, finding that Dr. 14 Malancharuvil s restriction to moderately complex tasks up to four or 15 five instructions in a habituated setting did not account for Dr. 16 Bagner s mild to moderate limitations handling normal stresses at 17 work and moderate limitations . . . completing a normal workweek 18 without interruption ). 19 person could work with the mild to moderate limitations Dr. Bagner 20 found to exist. 21 vocational expert did testify that if a person with the limitations 22 the ALJ found to exist were off task 20 percent of the day, the person 23 would not be able to do any jobs in the labor market. 24 /// 25 /// 26 /// 27 /// 28 /// See McAfee v. Astrue, 2009 WL 81400, at *3-4 (C.D. Cal. The vocational expert did not testify that a See A.R. 52-53 (vocational expert s testimony). 10 The See A.R. 53. Because the circumstances of this case suggest that further 1 2 administrative review could remedy the ALJ s errors,5 remand is 3 appropriate. 4 generally INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 5 administrative determination, the proper course is remand for 6 additional agency investigation or explanation, except in rare 7 circumstances). 8 /// 9 /// 10 /// 11 /// 12 /// 13 /// 14 /// McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see 15 5 16 17 18 19 20 21 22 23 24 25 26 27 28 There are outstanding issues that must be resolved before a proper disability determination can be made in the present case. For this reason, the Ninth Circuit s decision in Harman v. Apfel, 211 F.3d 1172 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) ( Harman ) also does not compel a reversal for the immediate payment of benefits. In Harman, the Ninth Circuit stated that improperly rejected medical opinion evidence should be credited and an immediate award of benefits directed where (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Harman at 1178 (citations and quotations omitted). Assuming, arguendo, the Harman holding survives the Supreme Court s decision in INS v. Ventura, the Harman holding does not direct reversal of the present case. It is not clear that the ALJ would be required to find Plaintiff disabled for the entire period of claimed disability if the medical opinions were fully credited. There is no vocational expert evidence concerning whether there exists work that could be performed by a person having the limitations Dr. Bagner and the state agency physicians found to exist. 11 1 CONCLUSION 2 3 For all of the foregoing reasons,6 Plaintiff s and Defendant s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: October 2, 2012. 10 11 ______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the payment of benefits would not be appropriate at this time. 12

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