Carmel Norwood v. Michael J Astrue, No. 2:2007cv06946 - Document 18 (C.D. Cal. 2008)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. IT IS ORDERED that this action be REMANDED to defendant, pursuant to Sentence Four of 42 USC 405(g), for further proceedings as described above. (twdb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 CARMEL NORWOOD, 13 Plaintiff, 14 15 16 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. 18 19 Plaintiff Carmel ) ) ) ) ) ) ) ) ) ) ) ) ) Norwood Case No. CV 07-06946-MLG MEMORANDUM OPINION AND ORDER ( Plaintiff ) seeks review of the 20 Commissioner s final decision denying her applications for Widow s 21 Insurance Benefits1 and Supplemental Security Income ( SSI ). For the 22 reasons discussed below, the Commissioner s decision is reversed, and 23 this action is remanded for further proceedings. 24 25 I. Plaintiff was born on July 12, 1944. (Administrative Record ( AR ) 26 27 Factual and Procedural Background at 84, 629). She has a high school education and relevant work 28 1 Plaintiff applied for widow s benefits based on her deceased husband s social security record. (AR at 84-85). 1 experience as an administrative clerk and telemarketer. (AR at 542-43, 2 629). 3 In June 1997, Plaintiff filed applications for Widow s Insurance 4 Benefits and SSI alleging that she has been disabled and unable to work 5 since February 1, 1991, due to depression, vision problems, and pain in 6 her stomach, chest, back, right leg and right knee. (AR 84-85, 89, 98, 7 100, 102, 110, 150, 536). Plaintiff s applications were denied initially 8 and upon reconsideration. (AR 71-75, 77-80, 536). 9 At Plaintiff s request, an administrative hearing was held before 10 Administrative Law Judge Walter J. Fisher ( ALJ Fisher ). (AR at 37-61). 11 On April 16, 1999, ALJ Fisher issued a decision ( Decision #1 ) denying 12 Plaintiff s requests for benefits. (AR at 328-37). The Appeals Council 13 denied review. (AR at 5-6). 14 Plaintiff commenced an action seeking review in this Court. On July 15 26, 2002, this Court remanded the case to the Commissioner for further 16 consideration 17 impairment. Norwood v. Apfel, No. CV 00-10092 (MLG); (AR at 344-54). of medical evidence concerning Plaintiff s mental 18 A supplemental hearing was conducted. (AR at 505-32). On May 9, 19 2005, ALJ Fisher issued a decision ( Decision #2 ) denying Plaintiff s 20 requests for benefits. (AR at 306-11). The Appeals Council denied 21 review. (AR at 296-98). Once again, Plaintiff sought review in this 22 Court. On October 25, 2006, pursuant to a stipulation by the parties, 23 this 24 consideration of the opinions of Plaintiff s treating and examining 25 psychiatrists. Norwood v. Barnhart, No. CV 05-8738-MLG; (AR at 556-58). 26 On June 27, 2007, an administrative hearing was held before 27 Administrative Law Judge Mary L. Everstine ( ALJ Everstine ). (AR at 28 626-48). On August 8, 2007, ALJ Everstine issued a decision ( Decision Court remanded the case to 2 the Commissioner for further 1 #3 ) concluding that Plaintiff was not disabled. (AR at 536-45). ALJ 2 Everstine found that Plaintiff had not engaged in substantial gainful 3 activity since February 1, 1991, and that Plaintiff suffers from 4 emphysema 5 Plaintiff s mental condition was not severe because it did not meet the 6 twelve month durational requirement. (AR at 538, 540 (citing Social 7 Security Ruling 82-52 ( In considering duration, it is the inability 8 to engage in [substantial gainful activity] that must last the required 9 12-month period )); see also 42 U.S.C. § 1382c(a)(3)(A). ALJ Everstine 10 found that Plaintiff s impairments did not meet or medically equal one 11 of the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. 12 (AR 13 functional capacity for work at all levels of exertion, but found that 14 Plaintiff should avoid unprotected heights, hazardous machinery, and 15 concentrated exposure to dust, fumes or other respiratory irritants. (AR 16 at 541). ALJ Evertstine concluded that Plaintiff remained capable of 17 performing her past relevant work as an administrative clerk and 18 telemarketer during the period at issue in this case, February 1, 1991, 19 through July 11, 2004.2 (AR at 542). In addition, ALJ Everstine found 20 that Plaintiff was able to perform other work such as food packer, 21 weigher/food product, kitchen helper, and sandwich maker. (AR at 544). 22 On November 5, 2007, Plaintiff commenced this action for judicial 23 review. Plaintiff contends that ALJ Everstine erred by disregarding the 24 opinion 25 Stipulation at 4-9, 11-13). Plaintiff seeks remand for payment of 26 benefits or, in the alternative, remand for further administrative at and 541). of a history ALJ her of Everstine treating alcohol abuse assessed psychiatrist, in remission, Plaintiff Sohini with Parikh, the but that residual M.D. (Joint 27 2 28 Plaintiff began receiving widow s benefits in July 2004 when she reached age 60. (AR at 536). 3 1 proceedings. (Joint Stipulation at 13). The Commissioner requests that 2 Decision #3 be affirmed. (AR at 14). The Joint Stipulation has been 3 taken under submission without oral argument. 4 5 II. 6 Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 7 Commissioner s decision to deny benefits. The Commissioner s decision 8 should be upheld if it is free from legal error and supported by 9 substantial evidence based on the record as a whole. 42 U.S.C. § 405(g); 10 Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence 11 means more than a mere scintilla, Richardson, 402 U.S. at 402, but 12 less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, 13 n.10 (9th Cir. 1975). It is such relevant evidence as a reasonable mind 14 might accept as adequate to support a conclusion. Richardson, 402 U.S. 15 at 401; Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). To 16 determine whether substantial evidence supports a finding, the reviewing 17 court must review the administrative record as a whole, weighing both 18 the evidence that supports and the evidence that detracts from the 19 Commissioner s conclusion. Reddick, 157 F.3d at 720. If the evidence 20 can reasonably support either affirming or reversing, the reviewing 21 court may not substitute its judgment for that of the Commissioner. 22 Id. at 720-721. 23 24 III. Discussion 25 A. Plaintiff s Mental Impairment 26 Plaintiff contends that ALJ Everstine erred by rejecting the 27 opinion of her treating psychiatrist at the Augustus F. Hawkins Mental 28 Health Center, Sohini Parikh, M.D. (Joint Stipulation at 4-9, 11-13). 4 1 In March 1998, Plaintiff went to the Augustus F. Hawkins Mental 2 Health Center with complaints of depression, fatigue, and lack of 3 energy.3 (AR at 271-74). Plaintiff s mood was blue and she had a 4 tearful affect. (AR at 271). Plaintiff was diagnosed with depressive 5 disorder not otherwise specified (Diagnostic and Statistical Manual of 6 Mental Disorders (4th ed.) ( DSM-IV ) code 311, and rule out major 7 depressive disorder without psychotic features (DSM-IV code 296.33). (AR 8 at 271). Plaintiff was assessed with a Global Assessment of Functioning 9 ( GAF ) scale of 60, indicating moderate symptoms or moderate difficulty 10 in social, occupational, or school functioning. DSM-IV at 32. 11 Dr. Parikh began treating Plaintiff in April 1998. (AR at 269). Dr. 12 Parikh noted that Plaintiff was experiencing depression, fatigue, and 13 appetite and sleep disturbances. (AR at 267). After diagnosing Plaintiff 14 with depressive disorder NOS (DSM-IV code 311), substance induced 15 anxiety disorder (DSM-IV code 292.89) and rule out major depressive 16 disorder, recurrent (DSM-IV code 296.30), Dr. Parikh prescribed an 17 antidepressant medication (nefazodone). (AR at 267). Plaintiff returned 18 to Dr. Parikh later that same month with complaints of agitation. (AR at 19 256). Dr. Parikh concluded that Plaintiff was suffering from major 20 depressive disorder, and began prescribing Zoloft (indicated for the 21 treatment of major depression). (AR at 256-57). Plaintiff saw Dr. Parikh 22 for treatment in May 1998, June 1998, July 1998, and September 1998. (AR 23 at 251-55). Dr. Parikh noted Plaintiff s subjective complaints of 24 depression, forgetfulness, and pain from arthritis. (AR at 251-54). Dr. 25 26 27 28 3 The Court notes that there is evidence in the record that Plaintiff received some treatment at Augustus F. Hawkins Mental Health Center prior to 1998, including emergency psychiatric treatment in July 1991, outpatient psychiatric treatment in July 1995, and inpatient psychiatric treatment in 1993 or 1994. (AR at 260, 267, 286). 5 1 Parikh continued to prescribe Zoloft. (AR at 251-55). 2 Although the record does not contain treatment notes from Dr. 3 Parikh dated after September 1998, the record does contain other 4 evidence showing that Dr. Parikh continued to treat Plaintiff. (AR at 5 285, 294). For example, in a June 1999 letter, Dr. Parikh verified that 6 Plaintiff was receiving outpatient psychiatric treatment at the Augustus 7 F. Hawkins Mental Health Center. (AR at 294). Dr. Parikh diagnosed 8 Plaintiff with major depressive disorder, recurrent, unspecified, and 9 concluded that Plaintiff was not able to work at that time. (AR at 295). 10 In September 1999, Dr. Parikh completed a Medical Assessment Form 11 (Mental) and an Evaluation Form of Mental Disorders. (AR at 285-93). Dr. 12 Parikh indicated that Plaintiff had last been examined at the Augustus 13 F. Hawkins Mental Health Center in August 1999. (AR at 285). Dr. Parikh 14 opined 15 depression, sleep disturbances, impaired insight, impaired memory, poor 16 coping mechanisms, and questionable impulse control. (AR 285, 289, 295). 17 Dr. Parikh found that Plaintiff had only a fair ability to: follow 18 work rules, relate to co-workers, deal with the public, use judgment, 19 interact 20 independently, maintain attention and/or concentration, behave in an 21 emotionally stable manner, and relate predictably in social situations. 22 (AR 292-94). Dr. Parikh further found that Plaintiff s ability to 23 maintain 24 remember, and carry out simple and complex job instructions was poor. 25 (AR 292). 26 that ALJ Plaintiff s with ability supervisors, persistent Everstine pace to deal with throughout reviewed Dr. work was work the Parikh s restricted stresses, workday findings and by her function understand, and opinion in 27 Decision #3 before rejecting them. (AR at 539-40). While Dr. Parikh s 28 opinion may not have been conclusive 6 on the ultimate issue of 1 disability, see Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989), 2 ALJ Everstine did not state adequate reasons for rejecting a treating 3 physician s opinion. See Orn v. Astrue, 495 F.3d 625, 631-32 (9th Cir. 4 2007) (a treating physician s opinion must be given controlling weight 5 if it is well-supported and not inconsistent with the other substantial 6 evidence in the record); see also Benton ex. rel. Benton v. Barnhart, 7 331 F.3d 1030, 1036 (9th Cir. 2003) (explaining that even if a treating 8 physician s opinion is contradicted by other medical evidence, an ALJ 9 may not reject the treating physician s opinion without providing 10 specific and legitimate reasons for doing so that are supported by 11 substantial evidence in the record ); Lester v. Chater, 81 F.3d 821, 12 830-31 (9th Cir. 1996)). For example, ALJ Everstine stated that Dr. 13 Parikh acknowledges that the claimant had only 2 months of treatment in 14 1998, one year before his opinion was rendered. (AR at 539). This 15 reason is not only a misinterpretation of Dr. Parikh s opinion, but it 16 is also belied by the record. As noted above, Dr. Parikh s treatment 17 records show that he examined Plaintiff in April 1998, May 1998, June 18 1998, July 1998, and September 1998. (AR at 251-56, 267, 269, 294). Dr. 19 Parikh also reported that Plaintiff continued to receive psychiatric 20 treatment at the Augustus F. Hawkins Mental Health Center through August 21 1999. (AR at 285, 294). 22 Next, ALJ Everstine found that Dr. Parikh assessed Plaintiff with 23 significant mental functional abilities. (AR at 539). In particular, ALJ 24 Everstine noted that in September 1999, Dr. Parikh reported that 25 Plaintiff s 26 homicidal 27 assistance for self-care, and she was competent enough to handle funds 28 without assistance. (AR at 287-89, 539). However, ALJ Everstine s concentration ideations, she was denied in tact, she denied hallucinations, 7 she suicidal did not and need 1 description of Dr. Parikh s opinion is misleading because it ignores the 2 significant symptoms identified by Dr. Parikh that restrict Plaintiff s 3 ability to work (e.g., depression, sleep disturbances, impaired insight, 4 impaired 5 control). (AR 285, 289, 295). ALJ Everstine was obligated to consider 6 the evidence as a whole in making the disability determination. See Clem 7 v. Sullivan, 894 F.2d 328, 320 (9th Cir. 1990) ( We consider the record 8 as a whole, weighing both the evidence that supports and the evidence 9 that detracts from the ALJ s conclusion ). memory, poor coping mechanisms, and questionable impulse 10 ALJ Everstine also discounted Dr. Parikh s opinion because it was 11 not supported by psychological testing. (AR at 539). It was improper for 12 ALJ Everstine to reject Dr. Parikh s opinion simply due to a lack of 13 psychological testing. See Sprague v. Bowen, 812 F.2d 1226, 1232 (9th 14 Cir. 15 depression, set forth clinical observations supporting the diagnosis, 16 and prescribed psychotherapeutic drugs, ALJ erred in finding claimant 17 had 18 impairment). Dr. Parikh s records reveal that every time he examined 19 Plaintiff 20 Plaintiff s medications. (AR at 251-57, 267, 269). While his notations 21 were often brief, he described his clinical findings and Plaintiff s 22 symptoms in greater detail in the mental evaluation forms. (AR at 285- 23 93). If ALJ Everstine questioned the objective basis for Dr. Parikh s 24 opinion, he should have inquired further. See, e.g., Smolen v. Chater, 25 80 F.3d 1273, 1288 (9th Cir. 1996); see also Brown v. Heckler, 713 F.2d 26 441, 443 (9th Cir. 1983) (ALJ s duty to fully and fairly develop the 27 record exists even when the claimant is represented by counsel). 28 1987) not (When set he a forth treating sufficient assessed physician diagnosed evidence Plaintiff s mental to claimant substantiate status and with mental evaluated Finally, in rejecting Dr. Parikh s opinion, ALJ Everstine relied on 8 1 the opinions of two examining psychiatrists, Chris H. Ho, M.D. and Alex 2 Dusovich, M.D. (AR at 190-94, 214-17, 540). These doctors, both of whom 3 examined Plaintiff on only a single occasion, concluded that Plaintiff 4 did not suffer from a mental impairment that would preclude her from 5 performing work related activities. (AR at 193-94, 217). Specifically, 6 in July 1997, Dr. Ho found that although Plaintiff suffered from alcohol 7 abuse 8 occupational, and personal adjustments. (AR at 216-17). Dr. Ho further 9 found that Plaintiff could work at simple tasks at a normal pace, 10 provided that she is not using alcohol. (AR at 217). In December 1997, 11 Dr. Dusovich diagnosed Plaintiff as suffering from adjustment disorder, 12 chronic with depressed mood and alcohol abuse vs. dependence. (AR at 13 193). 14 understanding, 15 instructions; functioning appropriately in a usual work setting in such 16 matters 17 responding appropriately to co-workers, supervisors, and the general 18 public. (AR at 193-94). Plaintiff contends, and the Court agrees, that 19 these examining doctors opinions were not a valid basis for rejecting 20 Dr. Parikh s opinion or concluding that her psychiatric impairment was 21 not severe. and Dr. as dependence, Dusovich she was capable concluded remembering, attendance, that and safety of Plaintiff following and making changes simple was simple in work social, capable and of: detailed routine; and 22 An examining physician s opinion constitutes substantial evidence 23 for rejecting a treating physician s opinion if the examining physician 24 relied on independent clinical findings that differ from the findings 25 of the treating physician. Orn, 495 F.3d at 631-32. Even if there is 26 substantial evidence in the record contradicting a treating physician s 27 opinion, 28 deference and must be weighed using the following factors: [l]ength of the treating physician s 9 opinion is still entitled to 1 the treatment relationship and the frequency of examination by the 2 treating 3 relationship between the patient and the treating physician. 20 C.F.R. 4 §§ 404.1527(d)(2)(i)-(ii), 416.927(d)(2)(i)-(ii); Orn, 495 F.3d at 631- 5 33. Other factors to be considered include the supportability of the 6 treating physician s opinion, consistency with the record as a whole, 7 the specialization of the physician, and the extent to which the 8 physician 9 requirements. 20 C.F.R. §§ 404.1527(d)(3)-(6), 416.927(d)(3)-(6). Thus, 10 [i]n many cases, a treating source s medical opinion will be entitled 11 to the greatest weight and should be adopted, even if it does not meet 12 the test for controlling weight. S.S.R. 96-2p; Orn, 495 F.3d at 13 632-633. 14 physician; is and familiar the with nature and disability extent of programs the and treatment evidentiary Here, Dr. Parikh s opinion was entitled to deference. SSR 96-2p; 15 Orn, 16 regulations weigh in favor of Dr. Parikh s opinion. 20 C.F.R. §§ 17 404.1527, 416.927. For example, the nature and extent of Plaintiff s 18 relationship with Dr. Parikh provides a unique longitudinal perspective 19 on Plaintiff s mental condition, adding weight to Dr. Parikh s opinion. 20 See 20 C.F.R. §§ 404.1527(d)(2)(i)-(ii), 416.927(d)(2)(i)-(ii); Orn, 495 21 F.3d at 633. As discussed above, Plaintiff treated with Dr. Parikh 22 and/or other physicians at the Augustus F. Hawkins Mental Health Center 23 from April 1998 through at least August 1999. (AR at 285, 294). Dr. 24 Parikh offered diagnoses of Plaintiff s mental condition, made clinical 25 findings, 26 medications. (AR at 251-55, 267, 269, 285-94). While Dr. Parikh s 27 treatment 28 Plaintiff s mental condition, [t]he primary function of medical records 495 F.3d at assessed records 632-633. Indeed, Plaintiff s do not the ability reveal 10 factors to detailed identified work, and discussions in the prescribed regarding 1 is to promote communication and recordkeeping for health care personnel 2 - not to provide evidence for disability determinations. Orn, 495 F.3d 3 at 634. And, Dr. Parikh did provide a more reasoned explanation for his 4 opinion in the mental assessment forms. (AR at 285-93); see 20 C.F.R. §§ 5 404.1527(d)(3) ( Supportability. The more a medical source presents 6 relevant evidence to support an opinion, particularly medical signs and 7 laboratory findings, the more weight we will give that opinion. ), 8 416.927(d)(3) 9 condition [need not] be mentioned in every report to conclude that a 10 physician s opinion is supported by the record ). Thus, when viewed in 11 its entirety, the record provides ample support for Dr. Parikh s 12 opinion. (same); see also Orn, 495 F.3d at 634 ( a medical 13 Accordingly, ALJ Everstine s decision to reject the opinion of 14 Plaintiff s treating psychiatrist, Dr. Parikh, was not supported by 15 substantial evidence. 16 17 IV. Conclusion 18 The decision whether to remand for further proceedings is within 19 this Court s discretion. See Connett v. Barnhart, 340 F.3d 871, 876 (9th 20 Cir. 2003); Harman v. Apfel, 211 F.3d 1172, 1175-1178 (9th Cir. 2000). 21 Where no useful purpose would be served by further administrative 22 proceedings, or where the record has been fully developed, it is 23 appropriate to exercise this discretion to direct an immediate award of 24 benefits. Harman, 211 F.3d at 1179 ( the decision of whether to remand 25 for 26 proceedings ). However, where there are outstanding issues that must be 27 resolved before a determination of disability can be made, and it is not 28 clear from the record that the ALJ would be required to find the further proceedings turns upon 11 the likely utility of such 1 claimant disabled if all the evidence were properly evaluated, remand is 2 appropriate. Id.; Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 3 2003). 4 Here, there are outstanding issues that must be resolved before a 5 determination of disability can be made. See, e.g. Bunnell, 336 F.3d at 6 1115-16 (remanding for reconsideration where, inter alia, ALJ failed to 7 provide adequate reasons for rejecting the opinion of the treating 8 physicians and did not properly reject [the claimant s] subjective 9 complaints ). As ALJ opinion, Everstine issues failed remain as to to adequately the nature evaluate and extent Dr. 10 Parikh s of 11 Plaintiff s mental impairment, and its impact, if any, on Plaintiff s 12 ability to perform her past work or other work during the relevant time 13 period. Thus, the Court cannot find that the record has been fully 14 developed or that further administrative proceedings would serve no 15 useful purpose. See Smolen, 80 F.3d at 1292. Consequently, further 16 administrative proceedings are necessary. 17 18 ORDER 19 IT IS HEREBY ORDERED that this action be REMANDED to defendant, 20 pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings 21 as described above. 22 Dated: 23 24 September 24, 2008 ______________________________ Marc L. Goldman United States Magistrate Judge 25 26 27 28 12

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