William S Isaacs v. Michael J Astrue, No. 2:2007cv03242 - Document 17 (C.D. Cal. 2008)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline ChooljianFor the foregoing reasons, the decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrativeaction consistent with this Memorandum Opinion and Order of Remand. LET JUDGMENT BE ENTERED ACCORDINGLY. (SEE ATTACHED DOCUMENT FOR FURTHER DETAILS) (es)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 WILLIAM S. ISAACS, Plaintiff, 12 v. 13 14 15 16 17 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ 18 I. 19 ) Case No. CV 07-3242 JC ) ) ) MEMORANDUM OPINION AND ) ORDER OF REMAND ) ) ) ) ) ) ) SUMMARY On June 6, 2007, plaintiff William S. Isaacs ( plaintiff ) filed a Complaint 20 seeking review of the Commissioner of Social Security s denial of plaintiff s 21 application for benefits. The parties have filed a consent to proceed before a 22 United States Magistrate Judge. 23 This matter is before the Court on the parties cross motions for summary 24 judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The 25 Court has taken both motions under submission without oral argument. See Fed. 26 R. Civ. P. 78; L.R. 7-15; June 12, 2007 Case Management Order, ¶ 5. 27 /// 28 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum Opinion and Order of Remand because the 4 Administrative Law Judge ( ALJ ) erroneously failed to address the effect of 5 plaintiff s mental condition on plaintiff s ability to work and to develop 6 adequately the record on the issue of plaintiff s possible mental impairments. 7 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 8 DECISION 9 On August 18, 2004, plaintiff filed applications for Supplemental Security 10 Income and Disability Insurance benefits. (Administrative Record ( AR ) 67, 11 147). Plaintiff asserted that he became disabled on March 7, 2004, due to seizures 12 and a knee injury. (AR 67, 85). The ALJ examined the medical record and heard 13 testimony from plaintiff (who was represented by counsel) and a vocational 14 expert. (AR 155-76). 15 On December 19, 2006, the ALJ determined that plaintiff was not disabled 16 through the date of the decision. (AR 16, 20). Specifically, the ALJ found: 17 (1) plaintiff suffered from the following severe impairments: a seizure disorder 18 and ligamentous injury of the right knee (AR 18); (2) plaintiff s impairment or 19 combination of impairments did not meet or medically equal one of the listed 20 impairments (AR 18); (3) plaintiff retained the residual functional capacity to 21 perform work at any exertional level, with certain limitations1 (AR 18); 22 (4) plaintiff could perform his past relevant work (AR 20); (5) plaintiff could 23 perform two other jobs that existed in significant numbers in the local and national 24 /// 25 26 27 28 1 Specifically, the ALJ determined that plaintiff: (i) could never climb ladders, ropes or scaffolds; (ii) could occasionally climb ramps and stairs; (iii) could occasionally knee [sic] and crawl; and (iv) should avoid concentrated exposure to hazards such as heights and moving machinery. (AR 18). 2 1 economy (AR 20); and (6) plaintiff s subjective complaints were incredible. (AR 2 20). 3 The Appeals Council denied plaintiff s application for review. (AR 5-7). 4 III. APPLICABLE LEGAL STANDARDS 5 A. 6 To qualify for disability benefits, a claimant must show that he is unable to Sequential Evaluation Process 7 engage in any substantial gainful activity by reason of a medically determinable 8 physical or mental impairment which can be expected to result in death or which 9 has lasted or can be expected to last for a continuous period of at least twelve 10 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 11 § 423(d)(1)(A)). The impairment must render the claimant incapable of 12 performing the work he previously performed and incapable of performing any 13 other substantial gainful employment that exists in the national economy. Tackett 14 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 15 In assessing whether a claimant is disabled, an ALJ is required to follow a 16 five-step sequential evaluation process: 17 (1) 18 19 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant s alleged impairment sufficiently severe to limit 20 his ability to work? If not, the claimant is not disabled. If so, 21 proceed to step three. 22 (3) Does the claimant s impairment, or combination of 23 impairments, meet or equal an impairment listed in 20 C.F.R. 24 Part 404, Subpart P, Appendix 1? If so, the claimant is 25 disabled. If not, proceed to step four. 26 (4) Does the claimant possess the residual functional capacity to 27 perform his past relevant work? If so, the claimant is not 28 disabled. If not, proceed to step five. 3 1 (5) Does the claimant s residual functional capacity, when 2 considered with the claimant s age, education, and work 3 experience, allow him to adjust to other work that exists in 4 significant numbers in the national economy? If so, the 5 claimant is not disabled. If not, the claimant is disabled. 6 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 7 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 8 The claimant has the burden of proof at steps one through four, and the 9 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 10 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 11 (claimant carries initial burden of proving disability). 12 B. 13 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 14 benefits only if it is not supported by substantial evidence or if it is based on legal 15 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 16 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 17 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 18 mind might accept as adequate to support a conclusion. Richardson v. Perales, 19 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 20 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 21 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 22 To determine whether substantial evidence supports a finding, a court must 23 consider the record as a whole, weighing both evidence that supports and 24 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 25 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 26 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 27 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 28 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 4 1 IV. DISCUSSION 2 Plaintiff alleges that the ALJ failed to consider the effect, if any, of 3 plaintiff s mental condition on his ability to perform gainful activity, and also 4 failed to develop the record with respect to plaintiff s alleged mental impairments. 5 This Court agrees that the ALJ s failure to address plaintiff s mental condition and 6 adequately to develop the record regarding such condition requires a remand for 7 further proceedings. 8 A. 9 Although plaintiff s original application contains no specific allegation Relevant Facts 10 regarding his mental condition, the record reflects that plaintiff may suffer from 11 one or more mental impairments. Plaintiff s treating neurologist, Dr. Lowell 12 Nelson, diagnosed plaintiff with mild mental retardation and depression, and 13 stated that plaintiff had been suicidal in the past. (AR 145). In a disability 14 report filed with the California Employment Development Department, Dr. Nelson 15 opined that plaintiff s mild mental retardation limit[ed] [plaintiff s] employment 16 potential, and recommended psychiatric evaluation for plaintiff s depression.2 17 (AR 145). Dr. Nelson s progress notes reflect that depression and mild mental 18 retardation were two of plaintiff s current problem[s]. (AR 143). In addition, 19 plaintiff stated in his initial disability report that he had attended special 20 education classes due to [his] learning ability [sic]. (AR 90). Plaintiff testified 21 that he attended special education courses from second grade . . . straight up to 22 high school . . . . (AR 158-59, 160). In a written statement, plaintiff s sister said 23 plaintiff was in [] special education programs in elementary and part of high 24 school. (AR 140). 25 In his decision, the ALJ made no mention of plaintiff s mental condition. 26 27 28 2 Dr. Nelson s opinions are contained in an October 10, 2006, Claim for Disability Insurance Benefits Doctor s Certificate submitted to the California Employment Development Department. (AR 145). 5 1 B. 2 3 The ALJ Erroneously Failed to Address Plaintiff s Mental Condition The ALJ s failure to address evidence in the record that plaintiff may have a 4 mental impairment requires a remand for further proceedings. 5 An ALJ in a social security case is required to consider the effect of any 6 mental impairment on a plaintiff s physical ability to perform gainful activity, 7 even if a plaintiff s symptoms fail to meet or equal those of a listed mental 8 disorder. See Sprague v. Bowen, 812 F.2d 1226, 1231 (9th Cir. 1987) (citing 9 Beecher v Heckler, 756 F.2d 693, 694 (9th Cir. 1985) (because person s ability to 10 engage in gainful employment is dependent upon both physical and psychological 11 capabilities, claimant s illnesses must be considered in combination and must not 12 be fragmented in evaluating their effects); 42 U.S.C. § 423(d)(2)(B). While the 13 ALJ is free to expressly reject evidence regarding a plaintiff s mental impairment, 14 he may not ignore it. Sprague, 812 F.2d at 1231; Lester v. Chater, 81 F.3d 821, 15 830 (1996) (ALJ may not isolat[e] the effects of [plaintiff s] physical impairment 16 from the effects of his mental impairment ). When rejecting a treating physician s 17 findings, the ALJ is required, at a minimum, to articulate specific, legitimate 18 reasons for doing so. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 19 2008) (citation omitted). 20 Here, the ALJ relied in part on Dr. Nelson s findings to conclude that 21 plaintiff s seizure disorder did not limit plaintiff s ability to work, but did not 22 mention Dr. Nelson s other conclusion that a mental impairment contributed to 23 plaintiff s disability. (AR 19, 20). The ALJ s failure to address Dr. Nelson s 24 findings with respect to plaintiff s mental state constitutes error.3 Lester, 81 F.3d 25 26 27 28 3 Defendant argues that the ALJ could have rejected Dr. Nelson s diagnosis of plaintiff s mental state because the opinion of consultative examiner Mark Glasberg that plaintiff s mental status functions were normal contradicted Dr. Nelson s findings. (Defendant s Motion (continued...) 6 1 at 829-30. As consideration of plaintiff s alleged mental impairment could have 2 affected the ALJ s assessment regarding plaintiff s ability to work, this Court 3 cannot find that such error is harmless. 4 C. 5 6 The ALJ Erroneously Failed Fully and Fairly to Develop the Record Regarding Plaintiff s Mental Condition An ALJ has an affirmative duty to assist the claimant in developing the 7 record at every step of the sequential evaluation process. Bustamante, 262 F.3d at 8 954; see also Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (ALJ has 9 special duty fully and fairly to develop record and to assure that claimant s 10 interests are considered). The ALJ s duty to develop the record is triggered when 11 there is ambiguous evidence or when the record is inadequate to allow for proper 12 evaluation of the evidence. Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 13 2001) (citation omitted). This duty applies whether or not the claimant is 14 represented, and is heightened where the claimant may be mentally ill and thus 15 unable to protect [his] own interests. Tonapetyan v. Halter, 242 F.3d 1144, 1150 16 (9th Cir. 2001) (emphasis added) (citing Higbee v. Sullivan, 975 F.2d 558, 562 17 (9th Cir. 1992)); see also DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991) 18 ( In cases of mental impairments, this duty [to develop the record] is especially 19 important. ). 20 Although the ALJ here did not expressly find that evidence of plaintiff s 21 mental state was ambiguous or insufficient to assist in determining disability, the 22 23 24 25 26 27 28 3 (...continued) at 4-5). The Ninth Circuit has ruled that such arguments, however potentially persuasive, are not cognizable by the Court. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (district court cannot affirm on the basis of evidence the ALJ failed to discuss); Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (court cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision ). The Administration s decision stands or falls based upon the reasons cited by the ALJ. Barbato v. Commissioner of Social Security Administration, 923 F. Supp. 1273, 1276 n.2 (C.D. Cal. 1996)( Commissioner s decision must stand or fall with the reasons set forth in the ALJ s decision ). 7 1 record contains sufficient evidence of plaintiff s possible mental impairment to 2 trigger the ALJ s duty to develop the record. Hilliard v. Barnhart, 442 F. Supp. 2d 3 813, 817 (N.D. Cal. 2006) (A claimant need only raise a suspicion about his 4 [mental] impairment in order to trigger the ALJ s duty to develop the record. 5 (quoting Jones v. Bowen, 829 F.2d 524, 526 (5th Cir. 1987))).4 Plaintiff s treating 6 physician diagnosed plaintiff with mental retardation and depression, and 7 noted that plaintiff was suicidal in the past. (AR 145). The record contains 8 evidence that plaintiff had been assigned to special education courses during much 9 of his school years. Such evidence, while perhaps not specific enough to permit a 10 full disability evaluation, should have prompted the ALJ to inquire further than he 11 did. The record reveals little effort by the ALJ to seek additional information to 12 determine whether plaintiff s mental state could impact the ALJ s disability 13 determination.5 The ALJ did not, for example, order a consultative examination, 14 even though Dr. Nelson expressly urged a psychiatric evaluation for plaintiff s 15 depression. (AR 145).6 16 As the ALJ erroneously failed adequately to develop the record regarding 17 plaintiff s mental state, and as the current record provides an insufficient basis 18 19 4 While the mere presence of a mental disturbance does not automatically indicate a 20 severe disability, it cannot be ignored by the ALJ. . . . The ALJ has a duty to develop the record 21 when there is a suggestion of mental impairment by inquiring into the present status of 22 23 24 25 26 27 28 impairment and its possible effects on the claimant s ability to work. Plummer v. Apfel, 186 F.3d 422, 434 (3d Cir. 1999) (citations omitted). 5 In a June 15, 2006 disability report plaintiff indicated he had seen or would be seeing someone for emotional or mental problems that limited his ability to work. (AR 100). The ALJ did not examine plaintiff at the hearing to determine the nature of the alleged emotional and mental problems, or if the alleged problems might impact plaintiff s ability to work. 6 One of the means available to an ALJ to supplement an inadequate medical record is to order a consultative examination, i.e., a physical or mental examination or test purchased for [a claimant] at [the Social Security Administration s] request and expense. Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. 2001) (citing 20 C.F.R. §§ 404.1519, 416.919). 8 1 upon which to determine whether plaintiff s mental state impacted his ability to 2 work, this Court cannot deem the ALJ s error harmless. Accordingly, a remand is 3 appropriate to enable the ALJ to develop the record regarding plaintiff s mental 4 condition and to assess whether, in light of the fully developed record regarding 5 plaintiff s mental condition, plaintiff was able to work. 6 V. CONCLUSION7 7 For the foregoing reasons, the decision of the Commissioner of Social 8 Security is reversed in part, and this matter is remanded for further administrative 9 action consistent with this Memorandum Opinion and Order of Remand.8 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 DATED: October 1, 2008 12 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 7 The Court need not, and has not adjudicated plaintiff s other challenges to the ALJ s 18 decision, except insofar as to determine that a reversal and remand for immediate payment of 19 benefits would not be appropriate. The Court nonetheless notes that on remand the ALJ should 20 21 22 23 24 25 26 27 28 consider (i) whether plaintiff is obese; (ii) the effect, if any, of plaintiff s height/weight ratio over time on plaintiff s ability to work; and (iii) whether the record needs to be developed further on the issue of obesity. See Social Security Ruling ( SSR ) 02-01p at *6 (ALJ should consider the effect obesity has upon the individual s ability to perform routine movement and necessary physical activity within the work environment . . . . The combined effects of obesity with other impairments may be greater than might be expected without obesity . . . . ); Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003) (obesity should be considered when evaluating disability even if plaintiff did not explicitly raise obesity as a possible disabling factor). 8 When a court reverses an administrative determination, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). 9

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