Cristina Carreno Martin v. Carolyn W Colvin, No. 2:2013cv05653 - Document 18 (C.D. Cal. 2014)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh; the ALJ's decision is reversed and the case is remanded to the Agency for further proceedings consistent with this Memorandum Opinion and Order. IT IS SO ORDERED. See order for further details. (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 CRISTINA CARRENO MARTIN, Plaintiff, 11 v. 12 13 14 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 16 I. 17 18 ) Case No. CV-13-5653-PJW ) ) ) ) MEMORANDUM OPINION AND ORDER ) ) ) ) ) ) ) ) INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration ( the Agency ), denying her application for 20 Disability Insurance Benefits ( DIB ). 21 Administrative Law Judge ( ALJ ) erred when she rejected the 22 treating doctors opinions and when she found that Plaintiff was 23 not credible. 24 that the ALJ erred and remands the case to the Agency for 25 further proceedings. 26 27 28 She claims that the For the reasons explained below, the Court finds II. SUMMARY OF FACTS AND PROCEEDINGS In May 2009, Plaintiff applied for DIB, alleging that she had been unable to work since January 2009, due to various 1 1 physical and psychological/emotional impairments, including 2 bipolar disorder, depression, anxiety, headaches, fibromyalgia, 3 sleep apnea, and knee, back, and shoulder pain. 4 Record ( AR ) 107-08, 124.) 5 initially and on reconsideration. 6 was granted a hearing before an ALJ. 7 2011, she appeared with counsel and testified at the hearing. 8 (AR 58-77.) 9 benefits. (Administrative The Agency denied the applications Plaintiff then requested and (AR 94-99.) On August 22, The ALJ subsequently issued a decision denying (AR 23-30.) Plaintiff appealed to the Appeals 10 Council, which denied review. 11 this action. III. 12 (AR 1-3.) She then commenced ANALYSIS 13 A. The ALJ s Rejection of the Treating Doctors Opinions 14 The ALJ rejected the opinions of Plaintiff s treating 15 doctors and adopted, instead, the opinions of the reviewing 16 doctors. 17 the following reasons, the Court concludes that, at least with 18 regard to Plaintiff s treating psychiatrist, the ALJ erred and 19 remand is required for further consideration. 20 Plaintiff claims that the ALJ erred in doing so. For ALJs are tasked with resolving conflicts in the medical 21 evidence. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 22 1995). 23 evidence: treating doctors, examining doctors, and reviewing 24 doctors. 25 entitled to the greatest weight because treating doctors are 26 hired to cure and have more opportunity to know and observe the 27 patient. 28 ( Generally, we give more weight to opinions from your treating Generally speaking, three types of doctors supply that All things being equal, treating doctors opinions are Id. at 1041; see also 20 C.F.R. 404.1527(c)(2) 2 1 sources, since these sources are likely to be the medical 2 professionals most able to provide a detailed, longitudinal 3 picture of your medical impairment(s) and may bring a unique 4 perspective to the medical evidence that cannot be obtained from 5 the objective medical findings alone or from reports of 6 individual examinations ). 7 list, followed by reviewing doctors. 8 F.3d 821, 830-31 (9th Cir. 1995). 9 required to merely accept the opinion of a treating doctor and, Examining doctors are next on the See Lester v. Chater, 81 ALJs, however, are not 10 where contradicted, may reject it for specific and legitimate 11 reasons that are supported by substantial evidence in the 12 record. 13 doctor s opinion is uncontradicted, the ALJ can only reject it 14 for clear and convincing reasons. Id. at 830. On the other hand, where the treating Id. 15 i. Dr. Ruths 16 In January 2009, after experiencing acute depression and 17 feeling suicidal, Plaintiff checked herself into a local 18 hospital for treatment. 19 psychiatrist Steven M. Ruths, who diagnosed her with bipolar 20 disorder and treated her with drugs and therapy. 21 After five days, she was discharged to an aftercare facility for 22 another week. (AR 175-83.) She was treated by (AR 175-83.) (AR 176-77.) From February 2009 to June 2009, Dr. Ruths saw Plaintiff on 23 24 a monthly and sometimes twice monthly basis. (AR 261-85, 386- 25 417.) 26 she was doing and determined what medications she should be 27 taking in order to treat her symptoms. During these appointments, he questioned her about how 28 3 (AR 261-85, 386-417.) 1 In June 2009, Dr. Ruths filled out a Mental Disorder 2 Questionnaire Form, summarizing Plaintiff s condition and 3 prognosis. 4 was doing fairly well. 5 limits except for her concentration, which was impaired, and her 6 ability to adapt to work or work-like situations, which was 7 mildly impaired. 8 9 (AR 200-04.) In a nutshell, he found that Plaintiff Her mental status was within normal (AR 203.) Dr. Ruths continued to treat Plaintiff from June 2009 until July 2011. In August 2011, he filled out another form, again 10 summarizing Plaintiff s condition, but this time he reported 11 that she was not doing so well. 12 Plaintiff had limited functioning and was not capable of working 13 due to her psychological ailments and the symptoms that they 14 caused. 15 (AR 418-22.) He explained that (AR 418-22.) The ALJ accepted Dr. Ruths 2009 report and rejected the 16 2011 one. 17 did not support his 2011 findings because they did not show 18 symptoms or complaints supporting such a restrictive residual 19 functional capacity. 20 erred in rejecting Dr. Ruths 2011 report. 21 disagrees. 22 Plaintiff. 23 (AR 26-27.) He found that Dr. Ruths treatment notes (AR 27.) Plaintiff contends that the ALJ The Agency For the following reasons, the Court sides with The threshold issue in resolving this conflict is whether 24 Dr. Ruths 2011 opinion was contradicted or not. If it was, the 25 ALJ only had to provide specific and legitimate reasons for 26 rejecting it. 27 convincing reasons. If not, she was required to provide clear and 28 4 1 In July 2009, reviewing psychologist Preston Davis reviewed 2 Dr. Ruths records and his June 2009 opinion and concluded that, 3 based on that opinion, by January 2010, Plaintiff would return 4 to her pre-January 2009 level and be able to work. 5 Thus, Dr. Davis July 2009 opinion was consistent with Dr. 6 Ruths June 2009 opinion. 7 (AR 224.) The opinion at issue here, however, is Dr. Ruths August 8 2011 opinion. It does not appear that any doctor ever reviewed 9 it or any of Dr. Ruths records after July 2009. Nor did any 10 psychiatrist or psychologist, other than Dr. Ruths, weigh in on 11 Plaintiff s condition after July 2009. 12 Plaintiff s primary care physician offered opinions regarding 13 Plaintiff s psychiatric condition, it would appear that these 14 opinions were consistent with Dr. Ruths opinion. 15 To the extent that Thus, Dr. Ruths August 2011 opinion is uncontradicted. 16 That being the case, in order to uphold the ALJ s rejection of 17 it, the Court must find that the ALJ s reason for rejecting it 18 is clear and convincing and supported by substantial evidence in 19 the record. 20 out, under this standard, the Court would have to be convinced 21 that it was highly probable or reasonably certain that the ALJ 22 was right in order to affirm. 23 Moncada-Vega v. Holder, 718 F.3d 1075, 1083 n.5 (9th Cir. 24 2013)). 25 See Lester, 81 F.3d at 830. As the Agency points (Joint Stip. at 14, citing The medical charts from Dr. Ruths office visits with 26 Plaintiff are included in the record. 27 They consist of pre-printed, medical chart forms that contain 28 lines for the doctor to fill in the patient s interval history 5 (AR 262-85, 386-417.) 1 (signs, symptoms, compliance) followed by 65 boxes the doctor 2 can check to record various pertinent abnormalities. 3 Comparing the chart notes from Plaintiff s visits before the 4 June 2009 report--in which Dr. Ruths concluded that Plaintiff 5 was doing fairly well--with the chart notes following the June 6 2009 report and preceding the August 2011 report--in which Dr. 7 Ruths opined that Plaintiff was seriously impaired -it is 8 difficult to discern a measurable difference that would support 9 such a drastic change in Dr. Ruths opinions. For example, Dr. 10 Ruths found in 2009 that Plaintiff s intellectual functioning/ 11 sensorium was within normal limits. 12 found that Plaintiff exhibited signs and symptoms of 13 incoherence. 14 treatment notes after June 2009 that suggests that Plaintiff was 15 incoherent or that her coherence had changed between January 16 2009 and August 2011. 17 on the pre-printed form to indicate that Plaintiff was 18 incoherent. 19 the form that she was. 20 though cryptic, suggest that Plaintiff was completely coherent 21 and able to communicate with him at all times throughout the 22 treatment period. 23 (AR 419.) (AR 201.) In 2011, he But there is nothing in Dr. Ruths Dr. Ruths never checked any of the boxes (AR 386-409.) Nor did he record in his notes on (AR 386-409.) In fact, the notes, (AR 386-409.) As another example, in the 2011 form, Dr. Ruths reported 24 that Plaintiff s medications caused mild sedation. 25 Yet, he never noted this in any of his chart notes. 26 contrary, when he made a notation regarding side effects, he 27 consistently reported that there were none. 28 6 (AR 418.) To the (AR 386-409.) 1 These inconsistencies seem to support the ALJ s finding that Dr. 2 Ruths records did not support his August 2011 opinion. 3 But the Court cannot so easily dissect the other entries 4 made by Dr. Ruths in the 2011 report. For example, he noted 5 that Plaintiff exhibited apprehensive expectation. 6 Whatever this term means, it could be consistent with his view 7 as noted in the treatment notes that she often experienced 8 anxiety. 9 The same problem exists for Dr. Ruths observation that (AR 419.) Or maybe it refers to something totally different. 10 Plaintiff suffered from decreased energy, feelings of guilt or 11 worthlessness, memory impairment, etc. 12 could be due to changes in Plaintiff s condition or could be the 13 result of Dr. Ruths using a different form in 2011 than he did 14 in 2009. 15 in his evaluation. 16 examining the record. 17 that none of the other doctors reviewed Dr. Ruths treatment 18 notes after July 2009 or his 2011 report. 19 for the Court on its own to compare the records and the 2011 20 report and come to a firm conclusion that they are inconsistent. 21 Though the Court might be inclined to affirm the ALJ s 22 decision under a more relaxed standard, it cannot under the 23 heightened standard applicable here, i.e., the clear and 24 convincing standard. 25 Ruths 2011 opinion is unsupported by his treatment notes nor is 26 the Court convinced that the ALJ s summary rejection of the 2011 27 opinion is supported by substantial evidence in the record. 28 Further, in the absence of Dr. Ruths opinion, there is no (AR 419.) These changes It is also possible that Dr. Ruths was simply mistaken The Court cannot divine the answer by One of the reasons for this difficulty is And it is difficult It is not clear to the Court that Dr. 7 1 medical opinion regarding Plaintiff s psychological condition 2 after June 2009, despite the fact that the ALJ s decision was 3 issued in September 2011 and Plaintiff experienced what can be 4 fairly characterized as some horrific events after June 2009.1 5 For these reasons, the ALJ s decision to reject Dr. Ruths 6 August 2011 opinion is remanded to the Agency for further 7 consideration. 8 doctors to review the medical records or to examine the 9 Plaintiff and offer opinions as to the validity of Dr. Ruths On remand, the ALJ is free to consult with other 10 opinion as well as to Plaintiff s mental capabilities. 11 may also re-contact Dr. Ruths if she feels that that is 12 The ALJ warranted. 13 ii. Therapist Matzke 14 Plaintiff contends that the ALJ also improperly rejected 15 therapist Tamara Matzke s opinion. Using the same form that Dr. 16 Ruths used in August 2011 to set forth his opinion, Ms. Matzke 17 reported in August 2011 that Plaintiff was even more severely 18 impaired than did Dr. Ruths. (AR 423-27.) The ALJ rejected Ms. 19 1 20 21 22 23 24 25 26 27 28 The record reflects that Plaintiff experienced continual ups and downs throughout the course of her treatment with Dr. Ruths. In 2010, she learned that her husband had fathered their daughter s child. (AR 68-69, 71-72.) She reported this to Dr. Ruths and told him that she was blown away by the news. (AR 268.) Yet, less than a month later, Plaintiff reported to Dr. Ruths that things are going pretty well. (AR 265.) Plaintiff s husband was sent to prison and her daughter ran away. (AR 264.) Plaintiff s reaction as recorded by Dr. Ruths was that her home was now calm and that she was relieved. (AR 264, 395.) Plaintiff later lost her home to foreclosure and became homeless along with her three children. (AR 390-91.) But six months later, in April 2011, she told Dr. Ruths that she had found a job and that things were improving. (AR 388.)   8 1 Matzke s opinion because her treatment notes did not show 2 symptoms or complaints supporting such a restrictive residual 3 functional capacity. 4 (AR 27.) Because Ms. Matzke is a therapist, the ALJ needed only 5 germane reasons to discount her opinion. See Molina v. Astrue, 6 674 F.3d 1104, 1111 (9th Cir. 2012). 7 treatment notes did not support her opinion was sufficient under 8 this standard. 9 (9th Cir. 2002) (upholding ALJ s rejection of doctor s opinion The fact that Ms. Matzke s See, e.g., Thomas v. Barnhart, 278 F.3d 947, 957 10 because it was not supported by doctor s treatment notes). 11 review of the record supports the ALJ s finding that Ms. 12 Matzke s records did not support her dire view. 13 reportedly treated Plaintiff on a weekly/bi-monthly basis 14 between January 2010 and August 2011, though she pointed out 15 that the treatment had been sporadic. 16 treatment notes that she provided were only five pages long and 17 appear to have been prepared in connection with just three 18 appointments. 19 entirely of summaries of what Plaintiff told Ms. Matzke was 20 going on in her life at the time of her appointment, including 21 her husband s involvement with their daughter and Plaintiff s 22 attempts to find a new place to live. 23 reason, the ALJ s rejection of Ms. Matzke s opinion will not be 24 disturbed. (AR 434-38.) (AR 423.) A Ms. Matzke Yet the Further, they are comprised almost (AR 434-38.) For this 25 iii. Dr. Beamer 26 Dr. Thomas L. Beamer was Plaintiff s primary care physician 27 for 16 years. He submitted a residual functional capacity 28 questionnaire form on which he opined that Plaintiff could sit 9 1 for only 20 minutes, stand for ten, and walk for one block. (AR 2 428-32.) 3 fibromyalgia. 4 because they were not supported by his treatment notes. 5 29.) 6 noted that Plaintiff was doing well and that he wanted to reduce 7 her pain medications, citing to Dr. Beamer s notes. 8 He also noted that, though Dr. Beamer reported that Plaintiff 9 exhibited multiple tender spots, supporting a diagnosis of He also reported that Plaintiff suffered from (AR 428.) The ALJ rejected Dr. Beamer s findings (AR He pointed out, for example, that Dr. Beamer repeatedly (AR 29.) 10 fibromyalgia, Dr. Beamer s treatment notes never mentioned this 11 fact. (AR 29.) The record supports the ALJ s findings with regard to Dr. 12 13 Beamer (AR 225, 295-96) and, therefore, her rejection of Dr. 14 Beamer s opinion will be upheld. See Thomas, 278 F.3d at 957. 15 B. The Credibility Determination 16 Plaintiff testified at the hearing that her physical and 17 psychological maladies prevented her from maintaining a job. 18 (AR 61-75.) 19 it was inconsistent with his finding that Plaintiff could 20 perform light work because it was not supported by the medical 21 record. 22 so. 23 for further consideration is warranted on this issue. 24 The ALJ rejected this testimony to the extent that (AR 29.) Plaintiff argues that the ALJ erred in doing For the following reasons, the Court concludes that remand ALJs are tasked with judging the credibility of witnesses, 25 including the claimants. In making credibility determinations, 26 they may employ ordinary credibility evaluation techniques. 27 Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). 28 however, a claimant has produced objective medical evidence of 10 Where, 1 an impairment which could reasonably be expected to produce the 2 alleged symptoms and there is no evidence of malingering, the 3 ALJ can only reject the testimony for specific, clear, and 4 convincing reasons, id. at 1283-84, that are supported by 5 substantial evidence in the record. Thomas, 278 F.3d at 959. The ALJ found that Plaintiff was not credible, in part, 6 7 because she testified that she suffered from side effects from 8 her medications, including Lyrica (AR 65), and the record did 9 not reflect any complaints of significant side effects. The record supports this finding. (AR 10 29.) 11 when she was being treated by Dr. Beamer and he regularly noted 12 that she did not suffer from any significant side effects from 13 the medication. 14 trial that she did. 15 question her testimony on that ground. (AR 225, 226, 286.) (AR 65.) Plaintiff was on Lyrica Plaintiff testified at Thus, the ALJ was at liberty to The ALJ also questioned Plaintiff s testimony because she 16 17 found that Plaintiff s claims about the severity of her 18 psychological problems were inconsistent with the medical 19 records. 20 suffered from severe emotional problems in January 2009, when 21 she checked herself into a hospital, those problems were caused 22 by family issues and work stress and subsided over time. 23 29.) 24 indicated that Plaintiff had had a good response to medication 25 and her doctors were optimistic about her prognosis, citing Dr. 26 Ruths June 2009 opinion and Dr. Beamer s chart notes. 27 28 (AR 29.) The ALJ noted that, though Plaintiff (AR The ALJ pointed out that subsequent treatment notes (AR 29.) In doing so, the ALJ ignored Dr. Ruths 2011 report that Plaintiff was not doing well. As explained above, the Court has 11 1 remanded the case back to the ALJ to reconsider this assessment 2 as well as Dr. Ruths records after June 2009. 3 reason, the Court concludes that the ALJ should reexamine the 4 credibility issue in this new light.2 IV. CONCLUSION 5 6 For this same For these reasons, the ALJ s decision is reversed and the 7 case is remanded to the Agency for further proceedings 8 consistent with this Memorandum Opinion and Order.3 9 10 IT IS SO ORDERED. DATED:   August 29, 2014 11 12 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 13 14 S:\PJW\Cases-Social Security\GARNER 3159\Memorandum Opinion and Order.docx 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2     Though the Court has concluded that the ALJ was justified in questioning Plaintiff s testimony based on the fact that she claimed that she suffered from side effects from her medications, which was not supported by the record, it is not clear that the ALJ would have rejected Plaintiff s testimony on that ground alone. As such, remand is warranted. See Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (holding error by ALJ in credibility determination is harmless [s]o long as there remains substantial evidence supporting the ALJ s conclusions on . . . credibility and the error does not negate the validity of the ALJ's ultimate credibility conclusion. ). 3    Plaintiff has requested that the Court remand the case to the Agency for an award of benefits. The Court recognizes that it has the authority to do so but finds that this case does not merit this relief. First, there are questions as to the validity of Dr. Ruths conclusion that Plaintiff s mental/ emotional problems greatly limit her ability to function. Second, the issue of Plaintiff s credibility is in doubt and must be developed further on remand.   12

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