David Valadez v. Michael J Astrue, No. 2:2007cv05333 - Document 18 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. Because the Administrative Law Judge's credibility finding was not supported by substantial evidence, the matter is remanded to the Agency for further proceedings consistent with this opinion. See Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003). (READ ATTACHED FOR DETAILS) (esa)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 DAVID VALADEZ, Plaintiff, 11 12 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 07-5333 PJW MEMORANDUM OPINION AND ORDER 16 17 Before the Court is Plaintiff s appeal of a decision by Defendant 18 Social Security Administration ( the Agency ), denying his application 19 for disability insurance benefits and supplemental security income. 20 For the reasons discussed below, the Agency s decision is REVERSED and 21 the action is REMANDED for further proceedings consistent with this 22 opinion. 23 Plaintiff filed applications for disability insurance benefits 24 and supplemental security income on January 21, 2005, alleging that he 25 had been disabled since December 26, 2003. 26 ( AR ) 55-59, 224-25.) 27 and on rehearing, he requested and was granted a hearing before an 28 Administrative Law Judge ( ALJ ). (Administrative Record After his applications were denied initially (AR 29-33, 35-40, 41.) Plaintiff 1 appeared with counsel at the hearing on January 18, 2007. 2 50.) 3 application. 4 which denied Plaintiff s request for review. 5 Plaintiff then commenced this action. 6 (AR 230- On February 7, 2007, the ALJ issued an opinion denying the (AR 16-23.) Plaintiff appealed to the Appeals Council, Plaintiff raises two claims of error. (AR 5-9, 12, 228-29.) He argues first that the 7 ALJ failed to fully and fairly develop the record with respect to his 8 mental impairment. 9 ALJ erred in concluding that Plaintiff was not credible. (Joint Stip. at 4-7.) He argues second that the (Joint Stip. 10 at 10-11.) 11 the ALJ did not err when he failed to develop the record regarding 12 Plaintiff s alleged mental impairment but did err in his credibility 13 assessment. 14 For the reasons explained below, the Court concludes that Plaintiff points out that he was diagnosed with schizophrenia and 15 assigned a Global Assessment of Functioning ( GAF ) score of 40 in 16 July 2006. 17 heightened duty on the ALJ to develop the record, which, he believes, 18 the ALJ failed to do. 19 the Court disagrees. 20 (Joint Stip. at 5.) In Plaintiff s view, this imposed a (Joint Stip. at 5.) For the following reasons, The ALJ has an independent duty to fully and fairly develop the 21 record and to assure that the claimant's interests are considered," 22 even when the claimant is represented by counsel. 23 Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (quoting Smolen v. Chater, 24 80 F.3d 1273, 1288 (9th Cir. 1996)). 25 ALJ's own finding that the record is inadequate to allow for proper 26 evaluation of the evidence, triggers the ALJ's duty to 'conduct an 27 28 2 Tonapetyan v. "Ambiguous evidence, or the 1 appropriate inquiry.'" 2 the ALJ s duty to fully develop the record is heightened. 3 (citing Higbee v. Sullivan, 975 F.2d 558, 562 (9th Cir. 1992)). 4 Id. Where the claimant may be mentally ill, Id. In his decision, the ALJ noted that Plaintiff had been treated at 5 the Northeast Mental Health Center from April 2005 to July 2006, and 6 was diagnosed with schizophrenia in July 2006. 7 rejected that diagnosis and an accompanying GAF score of 40, however, 8 on the ground that it was based solely on Plaintiff s own report of 9 his mental illness. 10 (AR 21.) (AR 21.) The ALJ Plaintiff claims that this was error. A review of the record demonstrates that the diagnosis and GAF 11 score, which the ALJ wrongly ascribed to a physician, were made by a 12 social worker. 13 social worker s diagnosis, which was dated July 18, 2006, stated that 14 Plaintiff had not been heard from since April 20, 2006. 15 Thus, the social worker s assessment could not have been based on 16 Plaintiff s current condition because the social worker had no way of 17 knowing what it was. 18 (AR 175.) Moreover, as the Appeals Council noted, the (AR 6, 175.) While a social worker s opinion may provide insight into the 19 severity of an impairment, such an opinion cannot establish the 20 existence of a medically determinable impairment. 21 Ruling 06-03p (noting that licensed clinical social workers are not 22 acceptable medical sources under 20 C.F.R. ยงยง 404.1513(a)(1)-(5)). 23 As a result, the ALJ is not obligated to place any weight on the 24 opinion of a social worker. 25 1152-53 (9th Cir. 1990) ( [T]here is no requirement that the [Agency] 26 accept or specifically refute such evidence from a non-medical 27 source), rev d on other grounds, 947 F.2d 341, 348 (9th Cir. 1991) (en 28 banc). See Social Security See Bunnell v. Sullivan, 912 F.2d 1149, Because the opinion in this case was formulated by a social 3 1 worker and because there was no factual basis to support it, the ALJ 2 was not required to rely on it in reaching his decision. 3 The Court also finds that the ALJ s finding that no treating 4 source had diagnosed Plaintiff with any functionally restrictive 5 . . . mental impairment, (AR 21), was supported by substantial 6 evidence. 7 the Northeast Mental Health Center later changed the social worker s 8 initial diagnosis of schizophrenia to depression. 9 record reveals that no physician diagnosed Plaintiff with In an undated evaluation, Plaintiff s treating physician at (AR 218-19.) The 10 schizophrenia or made any findings that Plaintiff was functionally 11 limited by his depression. 12 12, 2005 and March 23, 2006, that Plaintiff remained stable; that he 13 was compliant with treatment; that he suffered no side effects from 14 medication; that the medication had a positive effect; and that his 15 level of functioning was fair. 16 His treating physician noted between May (AR 184-94.) At the administrative hearing on January 18, 2007, neither 17 Plaintiff nor his counsel raised the issue of schizophrenia. 18 Plaintiff testified that he suffered from depression, that he 19 sometimes had crying spells, and that he had considered suicide in the 20 past, but he had never attempted it. 21 that he had stopped going to Northeast Mental Health Center because 22 they were just giving me pills to help me sleep. 23 (AR 241.) He also testified (AR 244.) The ALJ did not err by not further developing the record in this 24 case. 25 ALJ rely on testimony that was itself based on ambiguous or inadequate 26 evidence. The record was neither ambiguous nor inadequate, nor did the For that reason, this claim is rejected. 27 28 4 1 Plaintiff next argues that the ALJ failed to provide clear and 2 convincing reasons for finding him not credible. 3 11.) 4 (Joint Stip. at 10- For the following reasons, the Court agrees. In the forms he filled out and submitted to the Agency before the 5 administrative hearing, Plaintiff alleged that he could not stand for 6 a long time and that it hurt when he stood or tried to do anything. 7 (AR 103.) 8 household chores, and that all he could do was watch television. 9 103, 105.) Plaintiff further claimed that he could not do any (AR He alleged that he could not walk for more than five 10 minutes without resting, that he could pay attention for no more than 11 five or ten seconds at a time, and that he could not handle stress or 12 changes in routine. 13 pain all day long in his head and that medication did not relieve the 14 pain. 15 that, when he stood, his ear and head would hurt and he would get 16 dizzy and short of breath. 17 he could lift was a toothbrush and eating utensils. 18 Plaintiff also alleged that he took three or four naps each day. 19 114.) 20 (AR 109.) (AR 106-07.) Plaintiff complained that he felt With respect to daily activities, Plaintiff alleged (AR 112.) Plaintiff claimed that the most (AR 113.) (AR Plaintiff s allegations at the administrative hearing were 21 somewhat different. 22 ringing in his ear as a result of a bike accident. 23 According to Plaintiff, the ringing prevented him from sleeping and 24 caused him balance problems. 25 suffered from very violent head rushes --which caused him to stagger 26 around a lot--and dizziness. 27 28 There, he testified that he developed real bad (AR 236-37.) (AR 234.) When he got up, he (AR 238.) In his decision, the ALJ determined that Plaintiff s claims regarding his condition were not entirely credible. 5 (AR 21.) This 1 finding was based on the fact that Plaintiff had not shown why he 2 could not perform normal daily activities; that there was no evidence 3 that Plaintiff s medications were ineffective, or caused disabling 4 side effects; and that Plaintiff watched television, cooked, and did 5 light housecleaning chores. 6 (AR 22.) An ALJ must undertake a two-step analysis when considering a 7 claimant s subjective symptom testimony. 8 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen, 80 F.3d at 1281-82). 9 He must first decide whether the claimant has produced objective Tommasetti v. Astrue, 533 10 medical evidence of an impairment which could reasonably be expected 11 to produce the symptoms alleged. 12 threshold and there is no evidence of malingering, then the ALJ can 13 only reject the claimant s pain testimony for specific, clear, and 14 convincing reasons for doing so. 15 Id. If the claimant has met this Id. The ALJ found that Plaintiff s impairments (hearing and 16 equilibrium loss and dizzy spells) were severe, which caused loss of 17 focus, blackouts, and headaches. (AR 23, 77.) 18 that Plaintiff was a malingerer. Thus, he needed to provide specific, 19 clear, and convincing reasons if he chose to reject Plaintiff s 20 testimony. 21 credibility, the ALJ was free to consider many factors, including 22 ordinary techniques of credibility evaluation[,]. . . unexplained or 23 inadequately explained failure to seek treatment or to follow a 24 prescribed course of treatment, . . . and the claimant s daily 25 activities. 26 1284). 27 28 Tommasetti, 533 F.3d at 1039. The ALJ did not find In evaluating Plaintiff s Tommasetti, 533 F.3d at 1039 (quoting Smolen, 80 F.3d at Here, none of the three reasons given by the ALJ for rejecting Plaintiff s testimony was adequate. 6 The ALJ s first reason was that 1 Plaintiff had failed to show any condition[ ] which would prevent him 2 from going outside and performing virtually all of his normal daily 3 activities. 4 existence of an impairment that might produce the symptoms alleged, 5 however, he could not reject Plaintiff s allegations of pain solely on 6 the basis that they were unsupported by the medical evidence. 7 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006) (noting 8 that the ALJ s justification for rejecting the claimant s testimony - 9 i.e., that it was not consistent with or supported by the overall (AR 21.) Because the ALJ had implicitly accepted the See 10 medical evidence of record--was exactly the type we have previously 11 recognized the regulations prohibit ) (citing SSR 96-7p; Light v. Soc. 12 Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)). 13 alleged that he suffered from equilibrium loss, dizzy spells, 14 blackouts, and headaches, conditions which could reasonably produce 15 the limitations complained of. 16 discounting Plaintiff s credibility is rejected. 17 Here, Plaintiff Thus, this justification for The ALJ s second reason for questioning Plaintiff s credibility 18 was that there were no indications that his medications are 19 ineffective (assuming that he takes them as and when prescribed), or 20 that they cause any disabling side effects. 21 not convinced that this reason is clear and convincing. 22 takes a lot of medication. 23 psychiatric problems, (AR 214), and some of it is for his physical 24 problems. 25 his physical ailments are supposed to do. 26 are intended to help him sleep and do not directly alleviate the pain 27 in his head and the ringing in his ears, except that they allow him to 28 sleep and he does not hear the ringing or feel the pain when he is (AR 123.) (AR 114.) (AR 22.) The Court is Plaintiff Some of it is for his It is not clear what the medicines he takes for 7 In Plaintiff s view, they 1 sleeping. (AR 109.) Plaintiff stated in a submission to the Agency 2 that the medicine does not relieve his pain. 3 failed to discuss this. 4 relieve Plaintiff s pain, Plaintiff s statement that they do not do so 5 contradicts the ALJ s finding that there is no evidence that the 6 medications are ineffective. 7 effective when Plaintiff is sleeping, they would preclude him from 8 working because he is unable to work when he is sleeping. 9 the ALJ should elaborate on what medications are intended to alleviate (AR 109.) The ALJ Assuming that the medications are intended to Further, if these medications are only On remand, 10 Plaintiff s pain and other symptoms and what evidence there is that 11 they are working. 12 The third reason cited by the ALJ for discounting Plaintiff s 13 testimony was that Plaintiff indicated he watches some television, 14 cooks and does light housecleaning chores. 15 not supported by substantial evidence, either. 16 chores, Plaintiff testified that he [j]ust help[s] my mom around the 17 house here and there, taking it slow, not making my head get any 18 worse. 19 here and there, but, you know, not too much. 20 testified that his mother did most of the cooking and all of the 21 shopping, and that she takes care of everything. 22 level of activity would not seem to be enough to conclude that 23 Plaintiff could work a full time job, or that his claims that he could 24 not are false. 25 (holding daily activities may be ground for adverse credibility 26 finding if claimant is able to spend a substantial part of his day (AR 242.) (AR 22.) This reason is Regarding household He also testified that he pick[s] up the yard (AR 242.) Plaintiff (AR 243.) This See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) 27 28 8 1 engaged in pursuits involving the performance of physical functions 2 that are transferable to a work setting. ) 3 justification for discounting Plaintiff s testimony is also rejected. 4 Because the ALJ s credibility finding was not supported by For these reasons, this 5 substantial evidence, the matter is remanded to the Agency for further 6 proceedings consistent with this opinion. 7 340 F.3d 871, 876 (9th Cir. 2003). See Connett v. Barnhart, 8 9 IT IS SO ORDERED. 10 DATED: October 30 , 2008. 11 12 13 14 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\VALADEZ, D 5333\Memo_Opinion.wpd 9
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