Roberto Eugene Fant, Jr. v. Michael J. Astrue, No. 5:2012cv02041 - Document 14 (C.D. Cal. 2013)

Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Victor B. Kenton. This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. This matter will be remanded for further hearing consistent with this Memorandum Opinion. 1 (gr)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 ROBERTO EUGENE FANT, JR., 12 Plaintiff, 13 14 v. 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 12-02041-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have 21 consented that the case may be handled by the Magistrate Judge. The 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record ( AR ) before the Commissioner. The parties have filed the 25 Joint Stipulation ( JS ), and the Commissioner has filed the certified 26 AR. 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) erred in 1 failing to acknowledge or grant any weight to the mental 2 function assessments of treating psychiatrist, Dr. Kim, 3 consultative examiner Dr. Griffin, or the VA assessment of 4 total mental disability; and 5 2. Whether the finding that Plaintiff retains the residual 6 physical capacity to perform a reduced range of light work 7 is based on a legally proper disregard of the opinions of 8 occupational medicine specialist Dr. Guo. 9 (JS at 7.) 10 11 This Memorandum Opinion will constitute the Court s findings of 12 fact and conclusions of law. After reviewing the matter, the Court 13 concludes 14 Commissioner must be reversed and the matter remanded. that for the reasons set forth, the decision of the 15 16 I 17 THE ALJ S ASSESSMENT OF PLAINTIFF S MENTAL RESIDUAL FUNCTIONAL 18 CAPACITY IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE 19 Plaintiff filed his applications for Disability Insurance 20 Benefits and Supplemental Security Income on February 9, 2007 alleging 21 an onset date of January 4, 1995. 22 hearing was held on April 14, 2009 before ALJ Radensky. (AR at 34-79, 23 180-181.) 24 disabled. (AR 122-130.) 25 After administrative denials, a On July 1, 2009, the ALJ found Plaintiff to be not By an Order dated February 18, 2011, the Appeals Council vacated 26 the Decision and remanded the matter. (AR 131-135.) 27 Order, the Appeals Council ordered that Plaintiff have a new hearing, 28 and that evidence of his Veterans Administration ( VA ) finding of 2 In its Remand 1 total disability, the State Agency psychiatric consultant s opinions, 2 and assessments of treating physician Huang be considered. 3 breadth of the remand order is encompassed in the following language 4 in the Remand Order: 5 To give further consideration to claimant s maximum 6 residual functional capacity during the entire period at 7 issue and provide rationale with specific references to 8 evidence of record in support of assessed limitations ... in 9 The so doing, evaluate the treating and non-treating non-source 10 opinions pursuant to the provisions of [applicable 11 regulations and Social Security rulings] and explain the 12 weight given to such opinion evidence. (AR 134, emphasis 13 added.) 14 15 The Remand Order resulted in a new hearing on September 16, 2011 16 before the same ALJ, at which time Plaintiff was represented by a non- 17 attorney representative. (AR 80-114.) Thereafter, in a Decision dated 18 October 21, 2011, the ALJ found Plaintiff to be not disabled. 19 request for review to the Appeals Council was denied and thus the 20 ALJ s Decision became the final decision of the Commissioner, and 21 resulted in this litigation. A 22 The ALJ found severe impairments as follows: morbidly obese, neck 23 trauma, subjective left sided weakness not confirmed by objective 24 findings, left shoulder impingement, depressive disorder NOS, and 25 post-traumatic stress disorder. (AR 24.) 26 evidence (but not all evidence in the record), the ALJ determined a 27 residual functional capacity which, with regard to mental limitations, 28 only restricted Plaintiff to performing moderately complex tasks with 3 After considering certain 1 up to 4-5 step instructions. (AR 26.) 2 Plaintiff s treating psychiatrist, beginning on December 6, 2005, 3 is William Kim of the VA. (AR 495-497.) This record contains 4 chronological treatment notes from Plaintiff s visits to the VA 5 Psychiatric Unit. (See AR 474, 489, 482, 492-493, 496.) 6 characteristically was viewed as suffering from some paranoid thinking 7 during these visits, with anxious mood and affect. (See, e.g., AR 8 471.) 9 disorder ( PTSD ), as evidenced in a letter of January 24, 2008. (AR Plaintiff Dr. Kim was treating Plaintiff for post-traumatic stress 10 295.) Plaintiff adhered to a medication and treatment regimen, but 11 Dr. Kim still found him to be very symptomatic and emotionally 12 unstable, suffering from frequent depression and anxiety, becoming 13 easily irritable, angry or fearful and reactive to triggers. (Id.) 14 On April 14, 2008, Dr. Kim completed a Psychiatric/Psychological 15 Impairment Questionnaire reflecting his treatment of Plaintiff over 16 two years. (AR 505-512.) 17 noted, and of particular interest is Dr. Kim s assessment on a rating 18 scale from no evidence of limitation, to mildly limited, moderately 19 limited, 20 limitations were found in functional areas pertaining to sustained 21 concentration and persistence, social interactions, and adaptation. 22 (Id.) 23 tolerating a low stress work environment. (AR 510-511.) and markedly Various clinical findings and symptoms were limited, in 20 discrete areas. Marked Dr. Kim was of the opinion that Plaintiff would be incapable of 24 In his first Decision, the ALJ rejected, apparently entirely, the 25 assessments of Dr. Kim as inconsistent with substantial evidence of 26 record. 27 testimony of a medical expert ( ME ), Dr. Stolz, and a one-time 28 psychiatric consultative examination ( CE ) by Dr. Parikh on August 5, This conclusion was based upon the ALJ s reliance on the 4 1 2007. (AR 127-128.) 2 In the second Decision following remand, the ALJ fails to even 3 mention Dr. Kim, apparently relying upon his evaluation of Dr. Kim s 4 reports from two years before. 5 that Dr. Kim had continued treating Plaintiff, and had rendered an 6 updated Psychiatric/Psychological Impairment Questionnaire on October 7 7, 2010. (AR 605-612.) 8 marked limitations in areas involving understanding and memory; marked 9 limitations in several areas concerning sustained concentration and 10 persistence; and marked limitations in several areas involving social 11 interactions. (AR 608-610.) 12 malingerer. (AR 611.) 13 tolerate even a low-stress work environment. (Id.) The ALJ, however, ignored the fact In that Questionnaire, Dr. Kim again found Dr. Kim assessed that Plaintiff is not a He again concluded that Plaintiff cannot 14 In the Commissioner s portion of the JS, he asserts that the ALJ 15 properly considered Dr. Kim s diagnoses and conclusions. (JS at 17, et 16 seq.) 17 mention Dr. Kim s treatment and diagnoses in the period subsequent to 18 the issuance of the first Decision. 19 in the testimony of the mental health ME at the hearing (AR 89-92) 20 that he even reviewed or considered this evidence. 21 Again, what is ignored is the fact that the ALJ failed to Moreover, there is no indication Plaintiff was also the recipient of a consultative psychological 22 examination by Dr. Griffin on December 8, 2010. (AR 614-619.) 23 conducting a clinical interview and administering standardized tests, 24 Dr. Griffin also assessed marked limitations in critical areas (see 25 Discussion of Applicable Law, infra) in Plaintiff s ability to make 26 judgments on simple work-related decisions; interact appropriately 27 with the public; interact appropriately with supervisors; interact 28 appropriately with co-workers; respond appropriately to work pressures 5 After 1 in a usual work setting; and respond appropriately to changes in a 2 routine work setting. (AR 618.) Despite the Commissioner s insistence 3 that Dr. Griffin s conclusions are diluted by some of Plaintiff s 4 activities of daily living, such as attending weekly group meetings 5 for PTSD (see JS at 19), and Dr. Griffin s indication of test results 6 which 7 experience to illness or a characterological inclination to complain 8 or be self-pitying (AR 617) (which the Commissioner characterizes as 9 malingering ), may indicate the a broad fact is tendency that Dr. to magnify Griffin the rendered level of specific 10 findings on critical areas of mental limitations which are highly 11 relevant 12 disability. The fact that the ALJ does not even mention Dr. Griffin s 13 report in the Decision renders it unreliable. 14 invitation to the Court to determine that this omission is harmless 15 error is rejected, in large part because Dr. Griffin s findings 16 corroborate those of Dr. Kim, which that doctor rendered on two 17 occasions, concerning Plaintiff s mental functional limitations. 18 importance of these assessments is highlighted by the law concerning 19 assessment of mental limitations, which the Court will set out at this 20 point. in the Social Security context to the evaluation of The Commissioner s The 21 22 A. Applicable Law. 23 In evaluating mental impairments, 20 C.F.R. §404.1520a(c)(3)(4) 24 and §416.920a(c)(3)(4) mandate that consideration be given, among 25 other 26 functioning; concentration, persistence, or pace; and episodes of 27 decompensation. These factors are generally analyzed in a Psychiatric 28 Review Technique Form ( PRTF ). things, to activities of daily living ( ADLs ), social The PRTF is used at Step Three of the 6 1 sequential evaluation to determine if a claimant is disabled under the 2 Listing of Impairments; however, the same data must be considered at 3 subsequent steps unless the mental impairment is found to be not 4 severe at Step Two. 5 20 C.F.R. See SSR 85-16. §§404.1520a(c)(1) and 416.920a(c)(1) require 6 consideration of all relevant and available clinical signs and 7 laboratory findings, the effects of your symptoms, and how your 8 functioning may be affected by factors including, but not limited to, 9 chronic mental disorders, structured settings, medication and other 10 11 treatment. 1 SSR 85-16 suggests the following as relevant evidence: 12 History, findings, and observations from medical 13 sources (including psychological test results), regarding 14 the presence, frequency, and intensity of hallucinations, 15 delusions or paranoid tendencies; depression or elation; 16 confusion or disorientation; conversion symptoms or phobias; 17 psycho-physiological 18 behavior; anxiety or tension. 19 activities of daily living and work activity, as well as 20 testimony 21 performance and behavior. 22 homes, or similar assistive entities. of third symptoms, parties withdrawn or bizarre Reports of the individual s about the individual s Reports from workshops, group 23 24 25 26 27 28 1 20 C.F.R. §404.1545(c) and §416.945(c) also require consideration of residual functional capacity for work activity on a regular and continuing basis and a limited ability to carry out certain mental activities, such as limitations in understanding, remembering, and carrying out instructions, and in responding appropriately to supervision, co-workers, and work pressures in a work setting. 7 1 It is also required under §404.1520a(c)(2) and §416.920a(c)(2) 2 that the ALJ must consider the extent to which the mental impairment 3 interferes with an ability to function independently, appropriately, 4 effectively, and on a sustained basis including such factors as the 5 quality and level of [] overall functional performance, any episodic 6 limitations 7 require[d]. [and] the amount of supervision or assistance [] 8 Pursuant to the September 2000 amendments to the regulations 9 which modify 20 C.F.R. §404.1520a(e)(2) and §416.920a(e)(2), the ALJ 10 is no longer required to complete and attach a PRTF. 11 regulations identify five discrete categories for the first three of 12 four relevant functional areas: activities of daily living; social 13 functioning; concentration, persistence or pace; and episodes of 14 decomposition. These categories are None, Mild, Moderate, Marked, and 15 Extreme. (§404.1520a(c)(3), (4).) In the decision, the ALJ must 16 incorporate pertinent findings and conclusions based on the PRTF 17 technique. §404.1520a(e)(2) mandates that the ALJ s decision must show 18 the 19 findings, and the functional limitations that were considered in 20 reaching a conclusion about the severity of the mental impairment(s). 21 The decision must include a specific finding as to the degree of 22 limitation in each of the functional areas described in paragraph (c) 23 of this section. significant history, including examination and The revised laboratory 24 The Step Two and Three analyses (see Decision at AR 53-54) are 25 intended to determine, first, whether a claimant has a severe mental 26 impairment (Step Two), and if so, whether it meets or equals any of 27 the Listings (Step Three). It is also required under §404.1520a(c)(2) 28 and §416.920a(c)(2) that the ALJ must consider the extent to which the 8 1 mental impairment interferes with an ability to function 2 independently, appropriately, effectively, and on a sustained basis 3 including such factors as the quality and level of [] overall 4 functional performance, any episodic limitations [and] the amount of 5 supervision or assistance [] require[d]. 6 These findings and conclusions are relevant to the Step Two and 7 Three analysis of whether a claimant has a severe mental impairment, 8 and if so, whether it meets or equals any of the Listings. (See 20 9 C.F.R. Part 4, subpart p, App. 1.) 10 The discussion in Listing 12.00, Mental Disorders, is relevant: 11 The criteria in paragraphs functional B and limitations C describe 12 impairment-related that are 13 incompatible with the ability to do any gainful activity. 14 The functional limitations in paragraphs B and C must be the 15 result of the mental disorders described in the diagnostic 16 description, that is manifested by the medical findings in 17 paragraph A. 18 In Listing 12.00C, entitled Assessment of Severity, 19 it is stated that, we assess functional limitations using 20 the four criteria in paragraph B of the Listings: Activities 21 of 22 persistence, or pace; and episodes of decompensation. Where 23 we use marked as a standard for measuring the degree of 24 limitation, it means more than moderate but less than 25 extreme. daily living; social functioning; concentration; 26 27 Social Security Ruling ( SSR ) 96-8p makes the same point in 28 distinguishing evidence supporting a rating of mental severity at Step 9 1 Two, a Listing level impairment at Step Three, and the determination 2 of an individual s MRFC at Step Four. 3 In addition to the foregoing deficiencies in the ALJ s evaluation 4 of the mental health evidence, although the VA assessed that Plaintiff 5 is 100% disabled, in his Decision, based on the testimony of the 6 mental health ME at the hearing, the ALJ interpreted the VA evidence 7 as demonstrating that the VA treatment notes show no cognitive 8 problems, generally stable to normal mental status exams, and so the 9 VA rating is given little weight. (AR 28.) For reasons which have 10 already been discussed, the Court rejects this characterization of the 11 VA mental health treatment notes and diagnoses, which in fact do not 12 indicate a stable or unremarkable mental condition. Moreover, the ALJ 13 failed to discharge the instructions of the Appeals Council to 14 evaluate the VA disability rating as it applies to the Social Security 15 context. 16 disability, while it does not necessarily compel the Social Security 17 Administration to reach an identical conclusion, must be given great 18 weight by an ALJ in the disability determination process. 19 v. Astrue, 640 F.3d 881, 886 (9th Cir. 2011). The Ninth Circuit has clearly held that a VA rating of See McLeod 20 The Court will not devote substantial attention to Issue Two, 21 which concerns the assessment as to Plaintiff s RFC in the physical 22 arena. 23 evidence will be reevaluated, and if necessary, new evidence will be 24 adduced to make a determination of this issue. 25 Since this matter will be remanded for a new hearing, this In remanding this matter, the Court will take the rare step of 26 ordering that it be assigned to a new ALJ. 27 confidence 28 evaluation to the evidence, in view of the nature of the deficiencies that the present ALJ 10 will The Court does not have give a fair and neutral 1 2 3 4 which occurred on remand. For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 5 6 7 DATED: August 5, 2013 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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