Kimberly Kezeli v. Michael Astrue, No. 2:2011cv08251 - Document 23 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh: For these reasons, the Agency's decision is reversed and the case is remanded for further consideration. (see document for complete details) (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 KIMBERLY KEZELI, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 11-8251-PJW MEMORANDUM OPINION AND ORDER 16 17 I. 18 INTRODUCTION 19 Before the Court is Plaintiff s appeal of a decision by Defendant 20 Social Security Administration ( the Agency ), denying her application 21 for disability insurance benefits ( DIB ) and Supplemental Security 22 Income ( SSI ). 23 ( ALJ ) erred when he failed to take into account the opinions of the 24 medical expert and the treating psychiatrist who believed that she 25 would have difficulty maintaining a job. 26 below, the Court concludes that the ALJ erred and remands the case to 27 the Agency for further proceedings. 28 Plaintiff claims that the Administrative Law Judge For the reasons set forth 1 II. 2 SUMMARY OF PROCEEDINGS 3 In 2006, Plaintiff Kimberly Kezeli applied for DIB and SSI, 4 alleging that she had been unable to work since October 2004, due to 5 depression, bipolar disorder, anxiety, fibromyalgia, and lower back 6 problems. 7 Agency denied the application initially and on reconsideration. 8 114-22, 126-30.) 9 an ALJ. (Administrative Record ( AR ) 194, 212-19, 224.) The (AR She then requested and was granted a hearing before (AR 71, 132.) Plaintiff appeared with counsel and testified 10 at the hearing. (AR 88-113.) 11 denying benefits. 12 Council, which denied review. (AR 30-44.) The ALJ subsequently issued a decision Plaintiff appealed to the Appeals (AR 13-15.) 13 III. 14 This action followed. ANALYSIS 15 16 A. The ALJ s Treatment of the Medical Expert s Opinion Plaintiff contends that the ALJ erred when he failed to address 17 the medical expert s opinion that Plaintiff would have difficulty 18 sustaining a full-time job. 19 Agency disagrees. 20 discuss the medical expert s opinion, it argues that the ALJ took the 21 opinion into account and essentially adopted it in formulating the 22 residual functional capacity finding. 23 the following reasons, the Court finds that the ALJ erred when he 24 failed to address the medical expert s opinion and that remand is 25 required to give him an opportunity to do so. (Joint Stip. at 13-16, 18-19.) The Acknowledging that the ALJ failed to explicitly (Joint Stip. at 16-18.) For 26 The ultimate issue in this case was whether Plaintiff would be 27 able to maintain a full-time job despite the fact that she suffered 28 from affective disorder (either bipolar disorder or major depressive 2 1 disorder) and generalized anxiety. Plaintiff s treating psychiatrist 2 believed that she would not be able to do so. 3 examining doctors felt that she could. 4 expert at the administrative hearing, presumably in an effort to sort 5 this out. 6 treatment records. 7 was working part time and questioned whether she would be able to 8 sustain full-time employment: The reviewing and The ALJ called a medical This doctor summarized Plaintiff s medical and psychiatric (AR 103-04.) He then pointed out that Plaintiff 9 So, I mean, even though she can do these tasks 10 like this I don t really think that she s been 11 able to sustain these tasks. 12 effort now to try to do so. 13 psychiatrist], you know, Dr. Fisher back in 14 California said she can t do it. 15 the fence about that. 16 some of these things but she s heavily medicated, 17 she s tired, she s in pain a lot and she has been 18 missing work, so I don t know about 19 sustainability. 20 goal than it is a reality at present time. 21 22 But she s making an And her [treating I m sort of on She ought to be able to do Sustainability is more like a (AR 105 (emphasis added).) The ALJ did not discuss the medical expert s opinion at all in 23 reaching his conclusion that Plaintiff could sustain full-time work. 24 (AR 41-42.) 25 critical to the resolution of this case and should have been 26 discussed. 27 appears that he would have had to conclude that Plaintiff could not 28 hold down a full-time job. This was error. The medical expert s opinion was Had the ALJ accepted the medical expert s opinion, it The Court finds that remand is required to 3 1 allow the ALJ to reconcile his finding that Plaintiff can hold down a 2 full-time job with the medical expert s opinion that sustaining full- 3 time work is more likely a goal than it is a reality at present 4 time. 5 (AR 105.) The Agency argues that the ALJ tacitly accepted and then adopted 6 the medical expert s testimony in reaching his decision as evidenced 7 by the fact that he essentially adopted the medical expert s residual 8 functional capacity assessment. 9 is rejected. (Joint Stip. at 16.) This argument In the first place, generally speaking, the Court will 10 not assume that an ALJ has tacitly accepted a doctor s opinion.1 11 rules and regulations that govern social security cases as well as the 12 case law that has developed over the years mandate that an ALJ address 13 a doctor s opinion and explain why it is or is not entitled to weight. 14 See, e.g., Tackett v. Apfel, 180 F.3d 1094, 1102-03 (9th Cir. 1999) 15 (holding ALJ erred in disregarding medical expert s testimony without 16 giving reasons for doing so). 17 error. 18 The The ALJ s failure to do so here was Second, the Court disagrees with the Agency that the ALJ 19 essentially adopted the medical expert s opinion. 20 medical expert was concerned that Plaintiff could not sustain full- 21 time employment. 22 that concern. 23 full time, without qualification. Clearly, the There is nothing in the ALJ s decision to reflect In fact, the ALJ concluded that Plaintiff could work 24 25 26 27 28 1 In his decision, the ALJ mentioned that the medical expert had testified in discussing the fact that Plaintiff did not meet the requirements of any of the Listings. (AR 35.) But, other than that brief mention, the ALJ never discussed the medical expert or the medical expert s opinions. 4 1 Finally, it defies common sense to believe that the ALJ would 2 carefully craft a 15-page decision, discussing all of the medical 3 evidence and all of the opinions of the other doctors and then, when 4 it came to the basis for his residual functional capacity finding, 5 simply leave out the evidence he was relying on, leaving it to the 6 reader to assume that he must have been relying on the opinion of a 7 doctor he did not discuss. 8 9 For these reasons, remand is required. On remand, the ALJ should address the medical expert s testimony and, if the ALJ concludes again 10 that Plaintiff can work full time, he should explain how that 11 conclusion can be reconciled with the medical expert s opinion that 12 she cannot. 13 B. 14 The Treating Doctor s Opinion Plaintiff also takes exception to the ALJ s rejection of the 15 opinion of her treating psychiatrist Duke D. Fisher. 16 believed that Plaintiff was completely disabled due to chronic mental 17 illness. 18 an opinion of disability, which is reserved to the ALJ; (2) it 19 appeared to be a mere recitation of Plaintiff s description of her 20 symptoms; (3) it was not supported by objective medical evidence; 21 (4) Dr. Fisher s treatment was brief, only seven months; and (5) Dr. 22 Fisher s opinion was inconsistent with the other doctors opinions. 23 For the reasons explained below, the Court remands this issue as 24 well.2 (AR 586.) Dr. Fisher The ALJ rejected this opinion because: (1) it was 25 26 27 28 2 The Agency argues that the ALJ also based this finding on the fact that Dr. Fisher had not provided any treatment notes, citing to page 41 of the record. (Joint Stip. at 9.) The Court was unable to find any reference to Dr. Fisher s treatment notes at page 41 or any (continued...) 5 1 Dr. Fisher s ultimate opinion that Plaintiff was disabled is an 2 issue left to the ALJ. 3 Cir. 2001). 4 the opinion for that reason. 5 wholesale dismissal of the entire opinion. 6 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th As such, the ALJ was empowered to reject that portion of Id. That does not, however, support a The ALJ was warranted in questioning Dr. Fisher s opinion because 7 it appeared that it was based in large measure on Plaintiff s claimed 8 symptoms and the ALJ found that Plaintiff was not credible--a finding 9 that she does not challenge here. See Morgan v. Comm r of Soc. Sec., 10 169 F.3d 595, 602 (9th Cir. 1999) (approving ALJ s rejection of 11 psychiatrists opinions based, in part, on the fact that they were 12 premised on claimant s subjective complaints, which the ALJ found to 13 be incredible); Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) 14 (upholding ALJ s rejection of treating doctor s opinion that was based 15 solely on discredited statements claimant made to treating doctor). 16 The ALJ s third reason for rejecting Dr. Fisher s opinion was 17 that it was not supported by the objective evidence in the record. 18 (AR 41.) 19 referring to. 20 Dr. Fisher s opinion on this ground. 21 F.3d 1294, 1299 (9th Cir. 1999) ( To say that medical opinions are not 22 supported by sufficient objective findings or are contrary to the The ALJ does not explain what objective evidence he is As such, the Court cannot uphold the ALJ s rejection of See Regennitter v. Comm'r, 166 23 24 25 26 27 28 2 (...continued) other page and assumes that what the Agency is referring to is the following sentence from page 41: [Dr. Fisher s opinions] are not supported by objective or subjective evidence submitted by Dr. Fisher independently or contained elsewhere in the record. (AR 41.) The Court acknowledges that Plaintiff s failure to submit the treatment notes from Dr. Fisher undermines Dr. Fisher s opinion. On remand, Plaintiff should obtain these notes and submit them to the ALJ. 6 1 preponderant conclusions mandated by the objective findings does not 2 achieve the level of specificity our prior cases have required[.] ) 3 (citation omitted). 4 The ALJ s fourth reason was that Dr. Fisher only treated 5 Plaintiff for seven months. (AR 41.) That reason is rejected out of 6 hand. 7 Dr. Fisher to become well acquainted with Plaintiff s condition and 8 render an opinion on it, particularly in light of Dr. Fisher s 9 statement that he was seeing her every two weeks during that period. First, seven months is more than an adequate period of time for 10 See generally Benton v. Barnhart, 331 F.3d 1030, 1035-39 (9th Cir. 11 2003) (declining to hold that doctor who may have seen patient only 12 once did not have treating physician status). 13 relying on Dr. Fisher s opinion, the ALJ chose to rely on the opinions 14 of the examining doctor, who saw Plaintiff only once, and the 15 reviewing doctors, who never saw her at all. 16 must treat the doctors equally. 17 months is not enough to know a patient sufficiently to render an 18 opinion, then certainly one visit or no visits disqualify the 19 examining and treating doctors as well. 20 2010 WL 842329, at *5 (W.D. Wash. Mar. 8, 2010) (holding that having 21 met claimant only once is not a convincing or legitimate ground to 22 reject a medical opinion. 23 doctors . . . should be rejected. ). 24 Second, in lieu of (AR 41-42.) The ALJ If approximately 28 visits over seven See, e.g., Suseyi v. Astrue, If it were, the opinions of most examining Finally, the ALJ concluded that Dr. Fisher s opinion was entitled 25 to less weight because it was inconsistent with the other doctors 26 opinions. 27 doctor s opinion controlling weight, see, e.g., Orn v. Astrue, 495 28 F.3d 625, 631 (9th Cir. 2007), it is not necessarily supported by the Though this is a valid reason for not giving a treating 7 1 record. Though some of the doctors disagreed with Dr. Fisher, not all 2 of them did, particularly the medical expert who, like Dr. Fisher, 3 questioned whether Plaintiff could sustain full-time employment. 4 remand, the ALJ should address this reason as well.3 5 IV. 6 On CONCLUSION 7 8 9 10 For these reasons, the Agency s decision is reversed and the case is remanded for further consideration.4 IT IS SO ORDERED. DATED: November 26, 2012. 11 12 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 S:\PJW\Cases-Soc Sec\KEZELI, 8251\memorandum opinion and order.wpd 20 21 22 23 24 25 26 27 28 3 Where, as here, the Court finds that some of the ALJ s reasons for questioning the treating doctor are valid and others are not, the Court remands the issue to allow the ALJ to reconsider it and decide in the first instance whether the valid reasons are enough to reject the opinion. See Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (noting relevant harmless error inquiry is whether the ALJ s decision remains legally valid, despite [the ALJ s] error. ). 4 The Court has considered Plaintiff s request that the case be remanded for an award of benefits and finds that this relief is not warranted here because it is not clear whether Plaintiff is entitled to benefits. 8
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