David A. Jack v. Michael J. Astrue, No. 2:2009cv07444 - Document 19 (C.D. Cal. 2010)

Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that plaintiffs request for relief is granted, and the Commissioner shall award both Title II and SSI disability benefits to plaintiff. See order for further details. (jy)

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David A. Jack v. Michael J. Astrue Doc. 19 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 DAVID A. JACK, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) No. CV 09-7444-RC OPINION AND ORDER 17 18 Plaintiff David A. Jack filed a complaint on October 20, 2009, 19 seeking review of the Commissioner s decision denying his applications 20 for disability benefits. 21 answer to the complaint, and the parties filed a joint stipulation on 22 May 18, 2010. On March 23, 2010, the Commissioner filed an 23 24 BACKGROUND 25 On August 18, 2004, plaintiff, who was born on June 24, 1969, 26 applied for disability benefits under Title II of the Social Security 27 Act ( Act ), 42 U.S.C. § 423, and the Supplemental Security Income 28 program ( SSI ) of Title XVI of the Act, claiming an inability to work Dockets.Justia.com 1 since January 18, 2001, due to bipolar disorder, depression, attention 2 deficit disorder and a left wrist injury. 3 plaintiff s applications were initially denied on November 22, 2004, 4 and were denied again on March 16, 2005, following reconsideration. 5 A.R. 102-13. 6 which was held before Administrative Law Judge Dale A. Garwal ( the 7 ALJ ) on August 3, 2006. 8 the ALJ issued a decision finding plaintiff is not disabled. 9 101. A.R. 19, 133-34, 155. The The plaintiff then requested an administrative hearing, A.R. 51-69, 115-16. On January 10, 2007, A.R. 91- The plaintiff sought review from the Appeals Council, which 10 granted plaintiff s request and remanded the matter to the ALJ for 11 further proceedings. A.R. 44-47, 128-30. 12 13 Following remand, the ALJ held another administrative hearing, 14 A.R. 70-86, and on July 6, 2009, the ALJ issued a new decision again 15 finding plaintiff is not disabled. 16 appealed this decision to the Appeals Council, which denied review on 17 September 21, 2009. A.R. 16-30. The plaintiff A.R. 7-15. 18 19 DISCUSSION 20 I 21 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 22 review the decision denying plaintiff disability benefits to determine 23 if his findings are supported by substantial evidence and whether the 24 Commissioner used the proper legal standards in reaching his decision. 25 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Vernoff v. 26 Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). 27 28 The claimant is disabled for the purpose of receiving benefits 2 1 under the Act if he is unable to engage in any substantial gainful 2 activity due to an impairment which has lasted, or is expected to 3 last, for a continuous period of at least twelve months. 4 §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). 5 The claimant bears the burden of establishing a prima facie case of 6 disability. 7 cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 8 1289 (9th Cir. 1996). 42 U.S.C. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), 9 10 The Commissioner has promulgated regulations establishing a five- 11 step sequential evaluation process for the ALJ to follow in a 12 disability case. 13 the ALJ must determine whether the claimant is currently engaged in 14 substantial gainful activity. 15 If not, in the Second Step, the ALJ must determine whether the 16 claimant has a severe impairment or combination of impairments 17 significantly limiting him from performing basic work activities. 18 C.F.R. §§ 404.1520(c), 416.920(c). 19 must determine whether the claimant has an impairment or combination 20 of impairments that meets or equals the requirements of the Listing of 21 Impairments ( Listing ), 20 C.F.R. § 404, Subpart P, App. 1. 22 C.F.R. §§ 404.1520(d), 416.920(d). 23 ALJ must determine whether the claimant has sufficient residual 24 functional capacity despite the impairment or various limitations to 25 perform his past work. 26 in Step Five, the burden shifts to the Commissioner to show the 27 claimant can perform other work that exists in significant numbers in 28 the national economy. 20 C.F.R. §§ 404.1520, 416.920. In the First Step, 20 C.F.R. §§ 404.1520(b), 416.920(b). 20 If so, in the Third Step, the ALJ 20 If not, in the Fourth Step, the 20 C.F.R. §§ 404.1520(f), 416.920(f). 20 C.F.R. §§ 404.1520(g), 416.920(g). 3 If not, 1 Moreover, where there is evidence of a mental impairment that may 2 prevent a claimant from working, the Commissioner has supplemented the 3 five-step sequential evaluation process with additional regulations 4 addressing mental impairments.1 5 Admin., 154 F.3d 913, 914-15 (9th Cir. 1998) (per curiam). Maier v. Comm r of the Soc. Sec. 6 7 Applying the five-step sequential evaluation process, the ALJ 8 found plaintiff has not engaged in substantial gainful activity since 9 January 18, 2001, his alleged onset date. (Step One). The ALJ then 10 found plaintiff has the severe impairments of affective disorder, 11 personality disorder, and mood disorder (Step Two); however, 12 plaintiff does not have an impairment or combination of impairments 13 that meets or equals a listed impairment. 14 determined plaintiff is not able to perform his past relevant work. (Step Three). The ALJ next 15 16 1 17 18 19 20 21 22 23 24 25 26 27 28 First, the ALJ must determine the presence or absence of certain medical findings relevant to the ability to work. 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1). Second, when the claimant establishes these medical findings, the ALJ must rate the degree of functional loss resulting from the impairment by considering four areas of function: (a) activities of daily living; (b) social functioning; (c) concentration, persistence, or pace; and (d) episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(2-4), 416.920a(c)(2-4). Third, after rating the degree of loss, the ALJ must determine whether the claimant has a severe mental impairment. 20 C.F.R. §§ 404.1520a(d), 416.920a(d). Fourth, when a mental impairment is found to be severe, the ALJ must determine if it meets or equals a Listing. 20 C.F.R. §§ 404.1520a(d)(2), 416.920a(d)(2). Finally, if a Listing is not met, the ALJ must then perform a residual functional capacity assessment, and the ALJ s decision must incorporate the pertinent findings and conclusions regarding the claimant s mental impairment, including a specific finding as to the degree of limitation in each of the functional areas described in [§§ 404.1520a(c)(3), 416.920a(c)(3)]. 20 C.F.R. §§ 404.1520a(d)(3), (e)(2), 416.920a(d)(3), (e)(2). 4 1 (Step Four). Finally, the ALJ concluded plaintiff is able to perform 2 a significant number of jobs in the national economy; therefore, he is 3 not disabled. (Step Five). 4 II 5 A claimant s residual functional capacity ( RFC ) is what he can 6 7 still do despite his physical, mental, nonexertional and other 8 limitations. 9 see also Valentine v. Comm r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th 10 Cir. 2009) (RFC is a summary of what the claimant is capable of doing 11 (for example, how much weight he can lift). ). 12 plaintiff has the RFC to: Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); Here, the ALJ found 13 14 perform a full range of work at all exertional levels that 15 is limited to the performance of simple routine tasks, and 16 the [plaintiff] has mild limitations in the ability to 17 perform activities of daily living and moderate 18 limitations in the ability to maintain social functioning 19 and the ability to maintain concentration, persistence and 20 pace. 21 22 A.R. 26. However, the plaintiff contends the ALJ s decision is not 23 supported by substantial evidence because the ALJ erroneously rejected 24 the opinions of plaintiff s treating psychiatrist, Jennifer Heitkamp, 25 M.D. The plaintiff is correct. 26 27 Dr. Heitkamp treated plaintiff at the Los Angeles County 28 Department of Mental Health ( DMH ) from May 24, 2005, to April 16, 5 1 2008, diagnosed plaintiff as having a bipolar disorder, attention 2 deficit disorder, hypothyroidism and a history of amphetamine abuse, 3 and prescribed numerous psychiatric medications to plaintiff. 4 e.g., A.R. 359-61, 391-92, 394-406, 408-09, 417-19, 421-22, 424-30, 5 436, 438, 440, 442, 444, 446, 453-54. 6 noted plaintiff was increasingly paranoid and had some delusional 7 thinking, which is how he appears prior to becoming very manic. 8 360. 9 psychotic, delusional and paranoid, A.R. 406; however, on August 11, 10 2005, Dr. Heitkamp reported plaintiff was stable on his medication. 11 A.R. 403. 12 increased depression and some compulsive behaviors, A.R. 401; however, 13 as of February 1 and March 1, 2006, plaintiff was stable again. 14 395-96. See, On June 9, 2005, Dr. Heitkamp A.R. On June 24, 2005, Dr. Heitkamp found plaintiff remained On October 6, 2005, Dr. Heitkamp noted plaintiff had A.R. 15 16 By April 26, 2006, plaintiff s depression had increased, A.R. 17 394, and on August 14, 2006, Dr. Heitkamp found plaintiff was 18 experiencing increased paranoia and ideas of reference. 19 August 15, 2006, Dr. Heitkamp opined plaintiff had a marked 20 restriction in his activities of daily living, moderate difficulty 21 maintaining social functioning, marked difficulty maintaining 22 concentration, persistence or pace, and has had four or more episodes 23 of decompensation. A.R. 453. On A.R. 408-09. 24 25 On April 26, 2007, Dr. Heitkamp found plaintiff was experiencing 26 increased ideas of reference and racing thoughts. 27 June 28, 2007, Dr. Heitkamp found plaintiff had increased paranoia and 28 some ideas of reference, and on November 15, 2007, Dr. Heitkamp again 6 A.R. 440. On 1 found plaintiff appeared paranoid. 2 2007, Dr. Heitkamp found plaintiff continued to be paranoid and had 3 increased ideas of reference, and on February 28, 2008, Dr. Heitkamp 4 noted plaintiff had more paranoid delusions and problems with ideas of 5 reference. 6 plaintiff had: A.R. 419, 421. A.R. 422, 426. On December 27, On March 6, 2008, Dr. Heitkamp opined 7 8 chronic depression and at times sporadic psychotic symptoms. 9 He experiences ideas of reference often which tends to 10 impact his abilities to interact in an appropriate way with 11 others. 12 well. 13 psychiatric medications and is currently on [W]ellbutrin for 14 depression. [Plaintiff] exhibits poor motivation and energy as Over the years he has been on many different 15 16 A.R. 496. 17 18 The medical opinions of treating physicians are entitled to Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998); 19 special weight. 20 Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). 21 the treating physician is employed to cure and has a greater 22 opportunity to know and observe the patient as an individual. 23 Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); Morgan v. 24 Comm r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 25 Therefore, the ALJ must provide clear and convincing reasons for 26 rejecting the uncontroverted opinion of a treating physician, Ryan v. 27 Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Reddick, 157 28 F.3d at 725, and [e]ven if [a] treating doctor s opinion is 7 This is because 1 contradicted by another doctor, the ALJ may not reject this opinion 2 without providing specific and legitimate reasons supported by 3 substantial evidence in the record. 4 Valentine, 574 F.3d at 692. Reddick, 157 F.3d at 725; 5 6 Here, the ALJ rejected Dr. Heitkamp s opinions for several 7 reasons, including that Dr. Heitkamp s treatment of plaintiff 8 involved no more than intermittent treatment sessions. 9 This conclusory statement does not constitute a specific and A.R. 25. 10 legitimate reason for rejecting Dr. Heitkamp s opinions. See Tackett 11 v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999) ( The ALJ must set out 12 in the record his reasoning and the evidentiary support for his 13 interpretation of the medical evidence. ); Regennitter v. Comm r of 14 the Soc. Sec. Admin., 166 F.3d 1294, 1299 (9th Cir. 1999) 15 ( [C]onclusory reasons will not justify an ALJ s rejection of a 16 medical opinion. ); Burger v. Astrue, 536 F. Supp. 2d 1182, 1187 (C.D. 17 Cal. 2008) ( [C]onclusory statements are not a specific and legitimate 18 reason for rejecting [a treating physician s] opinions ). 19 ALJ s conclusion supported by the medical record, which shows 20 plaintiff received extensive medical treatment from DMH professionals 21 such as Dr. Heitkamp, including the prescription of medications. 22 e.g., A.R. 290-349, 359-68, 391-701. Nor is the See, 23 24 The ALJ also criticized Dr. Heitkamp s opinions by concluding Dr. 25 Heitkamp appears to have taken the [plaintiff s] subjective 26 allegations at face value and merely reiterated those allegations when 27 making assertions regarding the [plaintiff s] mental health and mental 28 residual functional capacity. A.R. 25. 8 This conclusion is not true, 1 however, as Dr. Heitkamp based her professional opinions on her 2 personal observations of petitioner. 3 presented [with] more paranoid delusions but had a linear thought 4 process with no suicidal or homicidal ideations), A.R. 421 (plaintiff 5 has some mood lability [and was] tearfull [sic], angry, [and] 6 upset ), A.R. 422 (plaintiff appeared paranoid in the office looked 7 over his shoulder often, was agitated with the security guard ); see 8 also Ryan, 528 F.3d at 1199-1200 ( [A]n ALJ does not provide clear and 9 convincing reasons for rejecting [a] . . . physician s opinion by 10 questioning the credibility of the patient s complaints where the 11 doctor does not discredit those complaints and supports his ultimate 12 opinion with his own observations. ). See, e.g., A.R. 419 (plaintiff Indeed, 13 14 [c]ourts have recognized that a psychiatric impairment is 15 not as readily amenable to substantiation by objective 16 laboratory testing as is a medical impairment and that 17 consequently, the diagnostic techniques employed in the 18 field of psychiatry may be somewhat less tangible than those 19 in the field of medicine. 20 cannot be ascertained and verified as are most physical 21 illnesses, for the mind cannot be probed by mechanical 22 devices in order to obtain objective clinical manifestations 23 of mental illness. . . . 24 of a disability claim, clinical and laboratory data may 25 consist of the diagnoses and observations of professionals 26 trained in the field of psychopathology. 27 psychiatrist should not be rejected simply because of the 28 relative imprecision of the psychiatric methodology or the In general, mental disorders [W]hen mental illness is the basis 9 The report of a 1 absence of substantial documentation, unless there are other 2 reasons to question the diagnostic technique. 3 4 Sanchez v. Apfel, 85 F. Supp. 2d 986, 992 (C.D. Cal. 2000) (emphasis 5 added; citations omitted); Rodriguez v. Bowen, 876 F.2d 759, 762 (9th 6 Cir. 1989); see also 20 C.F.R. §§ 404.1528(b), 416.928(b) 7 ( Psychiatric signs are medically demonstrable phenomena that indicate 8 specific psychological abnormalities, e.g., abnormalities of behavior, 9 mood, thought, memory, orientation, development, or perception. They 10 must also be shown by observable facts that can be medically described 11 and evaluated. ). 12 legitimate reason for rejecting Dr. Heitkamp s opinions. Therefore, this also is not a specific and 13 14 Finally, the ALJ also rejected Dr. Heitkamp s opinions as 15 completely inconsistent with the reports of the objective medical 16 consultants, the report of the objective consultative examiner, and 17 the record taken as a whole. 18 not cite such alleged inconsistencies, this reason also is conclusory 19 and insufficient to reject a treating physician s opinions. 20 Regennitter, 166 F.3d at 1299; see also Embrey, 849 F.2d at 421 ( To 21 say that medical opinions are not supported by sufficient objective 22 findings or are contrary to the preponderant conclusions mandated by 23 the objective findings does not achieve the level of specificity our 24 prior cases have required. . . . ). 25 cannot be inconsistent with the record as a whole when the majority of 26 plaintiff s medical records are from Dr. Heitkamp and other DMH 27 professionals. 28 Chetverukhin, M.D., another of plaintiff s treating physicians at DMH, A.R. 25. However, since the ALJ did Moreover, Dr. Heitkamp s opinions For instance, on August 10, 2004, Aleksey 10 1 diagnosed plaintiff as having a bipolar disorder and determined 2 plaintiff s Global Assessment of Functioning was 38, A.R. 334-39, 3 which indicates [s]ome impairment in reality testing or communication 4 (e.g., speech is at times illogical, obscure, or irrelevant) or major 5 impairment in several areas, such as work or school, family relations, 6 judgment, thinking, or mood (e.g., depressed man avoids friends, 7 neglects family, and is unable to work; child frequently beats up 8 younger children, is defiant at home, and is failing at school). 9 American Psychiatric Ass n, Diagnostic and Statistical Manual of 10 Mental Disorders, 34 (4th ed. (Text Revision) 2000). In reaching this 11 conclusion, Dr. Chetverukhin observed plaintiff and noted he was 12 agitated, guarded and suspicious, his recent and remote memory were 13 impaired, he was dysphoric and irritable and had sad affect, his 14 insight and judgment were severely impaired, he was experiencing 15 excessive guilt and worry, he was aggressive, uncooperative, violent, 16 destructive, and self-destructive, and he had excessive and 17 inappropriate displays of anger and poor impulse control. A.R. 338. 18 19 When the ALJ fails to provide adequate reasons for rejecting the 20 opinion[s] of a treating . . . physician, [this Court] credit[s] 21 th[ose] opinion[s] as a matter of law. 22 821, 834 (9th Cir. 1996)(citations omitted); Widmark v. Barnhart, 454 23 F.3d 1063, 1069 (9th Cir. 2006). 24 opinions, it is clear that substantial evidence does not support the 25 RFC assessment. 26 2007); Widmark, 454 F.3d at 1070. 27 support the ALJ s step-five determination, since it was based on this 28 erroneous RFC assessment. Lester v. Chater, 81 F.3d Properly crediting Dr. Heitkamp s Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. Nor does substantial evidence Lingenfelter, 504 F.3d at 1041. 11 1 2 III [W]here the record has been developed fully and further 3 administrative proceedings would serve no useful purpose, the district 4 court should remand for an immediate award of benefits. 5 Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Moisa v. Barnhart, 367 6 F.3d 882, 887 (9th Cir. 2004). 7 Dr. Heitkamp s opinions show that plaintiff meets or equals Listing 8 12.04 -- Affective Disorders.2 Benecke v. Here, as the ALJ recognized, A.R. 25, Thus, this Court remand[s] for 9 10 2 11 Affective Disorders: Characterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally involves either depression or elation. [¶] The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied. [¶] A. Medically documented persistence, either continuous or intermittent, of one of the following: [¶] 1. Depressive syndrome characterized by at least four of the following: [¶] a. Anhedonia or pervasive loss of interest in almost all activities; or [¶] b. Appetite disturbance with change in weight; or [¶] c. Sleep disturbance; or [¶] d. Psychomotor agitation or retardation; or [¶] e. Decreased energy; [¶] or f. Feelings of guilt or worthlessness; or [¶] g. Difficulty concentrating or thinking; or [¶] h. Thoughts of suicide; or [¶] i. Hallucinations, delusions, or paranoid thinking; or [¶] 2. Manic syndrome characterized by at least three of the following: [¶] a. Hyperactivity; or [¶] b. Pressure of speech; or [¶] c. Flight of ideas; or [¶] d. Inflated self-esteem; or [¶] e. Decreased need for sleep; or [¶] f. Easy distractibility; or [¶] g. Involvement in activities that have a high probability of painful consequences which are not recognized; or [¶] h. Hallucinations, delusions or paranoid thinking; [¶] Or [¶] 3. Bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Listing 12.04 provides, in pertinent part: 12 1 payment of benefits. Lester, 81 F.3d at 834; Ramirez v. Shalala, 8 2 F.3d 1449, 1455 (9th Cir. 1993). 3 4 ORDER 5 IT IS ORDERED that plaintiff s request for relief is granted, and 6 the Commissioner shall award both Title II and SSI disability benefits 7 to plaintiff. 8 9 DATE: November 22, 2010 10 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 11 both manic and depressive syndromes (and currently characterized by either or both syndromes); [¶] And B. Resulting in at least two of the following: [¶] 1. Marked restriction of activities of daily living; or [¶] 2. Marked difficulties in maintaining social functioning; or [¶] 3. marked difficulties in maintaining concentration, persistence or pace; or [¶] 4. Repeated episodes of decompensation, each of extended duration. [¶] OR [¶] C. Medically documented history of a chronic affective disorder of at least 2 years duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following: [¶] 1. Repeated episodes of decompensation, each of extended duration; or [¶] 2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or [¶] 3. Current history of 1 or more years inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 20 C.F.R. § 404, Subpart P, App. 1, Listing 12.04. R&R-MDO\09-7444.mdo 28 11/22/10 13

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