Robert McMahon v. Michael J Astrue, No. 8:2008cv00834 - Document 22 (C.D. Cal. 2009)
Court Description: MEMORANDUM DECISION by Magistrate Judge Stephen J. Hillman: For the foregoing reasons, the decision of the Commissioner is reversed and remanded pursuant to Sentence 4 of 42 U.S.C. Section 404(g). (pcl)
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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA-SOUTHERN DIVISION 11 12 13 14 15 ROBERT McMAHON, 16 17 18 19 v. ) SA CV 08-00834-SH ) ) MEMORANDUM DECISION ) ) ) ) ) ) ) ) Plaintiff, MICHAEL J. ASTRUE, Commissioner Social Security Administration, Defendant, 20 21 I. PROCEEDINGS 22 Plaintiff filed a Complaint on August 8, 2008, seeking review of the 23 decision by the Commissioner of the Social Security Administration denying 24 Supplemental Security Income ( SSI ) benefits. On August 25, 2008, both 25 parties consented to proceed before the undersigned United States Magistrate 26 Judge, after which Defendant filed an Answer on December 12, 2008. The 27 matter has been taken under submission. 28 1 II. BACKGROUND 1 2 Plaintiff applied for SSI on October 5, 2002, asserting a disability onset 3 date of October 16, 2001 due to chronic back pain, gout, depression, and other 4 possible mental illness. (A.R. 13, 65, 72). The Social Security Administration 5 (SSA) denied his claim on March 26, 2006. (A.R. 50). Plaintiff filed for 6 reconsideration and was denied on December 13, 2006. (A.R. 57). Thereafter, 7 Plaintiff filed a request for hearing by an Administrative Law Judge ( ALJ ). 8 (A.R. 19). 9 Following the hearing on October 25, 2007, the ALJ concluded that 10 Plaintiff was not and had not been disabled during the period alleged through the 11 date of the decision. (A.R. 8, 17-18). The ALJ determined that Plaintiff suffered 12 from lumbosacral sprain/strain with degenerative disc disease, disc bulging, and 13 lower extremity radiculopathy, gout and obesity which more than minimally 14 restricts his ability to perform work related activities. (A.R. 13). However, the 15 ALJ found that the Plaintiff did not have an impairment or combination of 16 impairments that meets or medically equals one of the listed impairments. (A.R. 17 14). Furthermore, the ALJ found that: (1) Plaintiff has a residual functional 18 capacity to do light work; (2) Plaintiff is unable to perform past relevant work; 19 and (3) that considering Plaintiff s age, education, work experience, and residual 20 functional capacity, there are jobs that exist in significant numbers in the national 21 economy that the Plaintiff can perform. (A.R. 14-18). 22 23 24 25 Plaintiff requested review of the ALJ decision from the Appeals Council, which was denied on June 25, 2008. (A.R. 3). This action followed. III. CONTENTIONS OF THE PARTIES Plaintiff contends that: (1) the ALJ failed to properly consider findings 26 from the state agency physician regarding Plaintiff s severe mental impairments 27 and multiple moderate limitations that resulted from these impairments; (2) the 28 ALJ failed to properly consider an examiner s opinion regarding Plaintiff bipolar 2 1 disorder and GAF score of 45; (3) the ALJ improperly determined the Plaintiff s 2 residual functional capacity; and (4) the ALJ failed to pose a complete 3 hypothetical to the vocational expert. 4 Defendant asserts that the ALJ reasonably gave weight to the report of a 5 consultative examiner who assessed no evidence of any disorder and no 6 functional limitations, rather than the state agency physician s findings of 7 moderate limitations. Additionally, the Defendant contends that a GAF score is 8 not a reliable indicator of impairment. Also, the Defendant argues that Plaintiff 9 suffered only from nonsevere mental impairments, which were properly 10 considered in ALJ s determination of Plaintiff s residual functional capacity, and 11 that Plaintiff s exertional level was properly determined using Medical- 12 Vocational Guidelines. 13 For the reasons discussed below, the Court finds that the Plaintiff s first 14 two claims of error have merit. Since the matter is remanded for further 15 proceedings based on Plaintiff s first two claims of error, the Court will not 16 address Plaintiff s third and fourth claims. IV. DISCUSSION 17 18 Under 42 U.S.C. §405(g), this court reviews the ALJ s decision to 19 determine if: (1) the ALJ s findings are supported by substantial evidence; and 20 (2) the ALJ used proper legal standards. DeLorme v. Sullivan, 924 F.2d 841 (8th 21 Cir. 1991). Substantial evidence means more than a mere scintilla, Richardson 22 v. Perales, 402 U.S. 389, 401 (1971), but less than a preponderance. Desrosiers 23 v. Secretary of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). This 24 court cannot disturb the ALJ s findings if those findings are supported by 25 substantial evidence, even though other evidence may exist which supports 26 Plaintiff s claim. See Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. 27 denied, Torske v. Weinberger, 417 U.S. 933 (1974); Harvey v. Richardson, 451 28 F.2d 589, 590 (9th Cir. 1971). 3 1 It is the duty of this court to review the record as a whole and to consider 2 adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 3 (9th Cir. 1986). The court is required to uphold the decision of the ALJ where 4 evidence is susceptible to more than one rational interpretation. Gallant v. 5 Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984). The court has the authority to 6 affirm, modify, or reverse the ALJ s decision with or without remanding the 7 cause for rehearing. 42 U.S.C. §405(g). Remand is appropriate where 8 additional proceedings would remedy defects in the ALJ s decision. McAllister 9 v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). 10 The ALJ follows a five-step sequential evaluation for determining whether 11 a person is disabled. First, it is determined whether the person is engaged in 12 substantial gainful activity. If so, disability benefits are denied. Second, if the 13 person is not so engaged, it is determined whether the person has a medically 14 severe impairment or combination of impairments. If the person does not have a 15 severe impairment or combination of impairments, benefits are denied. Third, if 16 the person has a severe impairment, it is determined whether the impairment 17 meets or equals one of a number of listed impairments. If the impairment 18 meets or equals a listed impairment, the person is conclusively presumed to be 19 disabled. Fourth, if the impairment does not meet or equal the listed 20 impairments, it is determined whether the impairment prevents the person from 21 performing past relevant work. If the person can perform past relevant work, 22 benefits are denied. Fifth, if the person cannot perform past relevant work, the 23 burden shifts to the ALJ to show that the person is able to perform other kinds of 24 work. The person is entitled to disability benefits only if he is unable to perform 25 other work. 20 C.F.R. §416.920 (1994); Bowen v. Yuckert, 482 U.S. 137, 140- 26 42 (1987). 27 28 4 1 THE ALJ S FAILURE TO PROPERLY CONSIDER MEDICAL 2 EVIDENCE THAT PLAINTIFF WAS MENTALLY IMPAIRED 3 CONSITITUTES MATERIAL LEGAL ERROR. 4 The ALJ failed to consider or even mention the medical opinions of a state 5 agency physician, contained in a psychiatric review form and a mental residual 6 functional capacity assessment form, both dated March 17, 2006. In the 7 psychiatric review form, the physician diagnosed Plaintiff with Affective 8 Disorder, Cognitive Disorder, and Depressive Disorder. (A.R. 157- 60). Also, 9 the physician reported that Plaintiff is moderately limited in his abilities to 10 maintain social functioning and maintain concentration, attention, and pace. 11 (A.R. 167). 12 In the mental residual functional capacity form, the same physician reports 13 that Plaintiff is moderately limited in his ability to understand and carry out 14 detailed instructions, maintain attention and concentration, perform activities 15 within a schedule, complete a normal workweek, accept instructions, respond 16 appropriately to criticism, and respond to changes in the work setting. (A.R. 17 172-73). 18 Under Social Security Rule 96-6p, findings made be a state agency 19 consultative physician in regards to the nature and severity of impairment must 20 be treated as expert opinion evidence of nonexamining sources. SSR 96-6p. 21 The ALJ may not ignore these opinions and must explain the weight given to 22 these opinions in their decisions. An expert s opinion is not binding upon the 23 Commissioner if the Commissioner provides clear and convincing reasons for 24 rejecting it. Montijo v. Secretary of Health & Human Servs., 729 F.2d 599, 601 25 (9th Cir. 1984). 26 In this case, the ALJ did not provide any reasons for disregarding the 27 opinion of the state agency physician, Dr. Johnson. The ALJ did provide 28 reasoning for assigning greater weight to another consultative examiner, Dr. 5 1 Krieg, who examined Plaintiff in January 2006. (A.R. 13-14). Dr. Krieg 2 diagnosed Plaintiff with drug dependence and personality disorder, but assessed 3 no evidence of disorder and no functional limitations that would prevent 4 Plaintiff from performing work related activities, provided Plaintiff remains 5 compliant with treatment for his mental disorders and avoids abusing drugs. 6 (A.R. 191). In his decision, the ALJ stated that more weight was assigned to Dr. 7 Krieg because her opinions were based on a detailed mental status examination, 8 which included psychological testing. (A.R. 14). 9 However, the ALJ did not mention the opinions of Dr. Johnson at all and 10 these opinions indicate that Plaintiff suffers from mental impairment to a certain 11 degree. The ALJ should consider these opinions and, if he chooses not to rely on 12 them, should provide specific, legitimate reasons for disregarding them. 13 Plaintiff argues that the ALJ also failed to properly consider the results of 14 a diagnostic examination dated April 2007, which diagnosed Plaintiff with 15 bipolar disorder and assigned a GAF score of 45. (A.R. 788). Although the ALJ 16 is not required to discuss every piece of evidence in interpreting and developing 17 the record, the ALJ should explain why significant, probative evidence has been 18 rejected. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). In making 19 findings, an ALJ may draw inferences logically flowing from the evidence. 20 Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). 21 In this case, the ALJ has ignored significant medical evidence indicating 22 Plaintiff suffered from various mental impairments, including the diagnostic 23 exam stating that Plaintiff suffers from bipolar disorder and has a GAF score of 24 45. (A.R. 788). Also, Plaintiff was treated at the Veterans Administration 25 ( VA ) Medical Center in Long Beach, California from 1997 through the end of 26 2007. Progress notes from the VA Medical Center dated June 24, 2005, reports 27 that Plaintiff suffers from heavy mood swings and on August 23, 2005, it is 28 noted that has mood instability and bouts of rage. (A.R. 424, 609). 6 1 Psychiatry treatment notes from June 5, 2007 state that his bipolar mood swings 2 have gotten him into trouble and he ends up mostly depressed. Plaintiff was 3 diagnosed with bipolar mainly depressed with a GAF score of 55. (A.R. 749- 4 50). 5 There is evidence in the record that indicate Plaintiff s mental problems 6 may not be a result of bipolar disorder. (A.R. 614, 618) But, overall, the 7 medical record indicates that Plaintiff suffers from mood swings, as well as anger 8 and substance abuse problems, that could indicate severe mental impairment. 9 (A.R. 385, 413, 424, 609, 614, 749, 775). The ALJ should consider at least 10 some of this medical evidence and should, if he decides to disregard it, provide 11 specific, legitimate reasons for not relying on it. 12 The ALJ did not provide clear and convincing reasons for ignoring the 13 medical opinions of the state agency consultative physician and the other medical 14 evidence provided by treatment notes and a diagnostic exam. This evidence 15 indicates that Plaintiff did suffer from mental impairments, and the ALJ should 16 have at least considered these opinions and treatment notes in his determination 17 of Plaintiff s level of impairment and discussed them in his Decision. Hence a 18 remand is appropriate in order. 19 V. CONCLUSION AND ORDER 20 21 For the foregoing reasons, the decision of the Commissioner is reversed 22 and remanded pursuant to Sentence 4 of 42 U.S.C. Section 404(g) 23 DATED: December 2, 2009 24 25 26 _________________________________ STEPHEN J. HILLMAN UNITED STATES MAGISTRATE JUDGE 27 28 7
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