Charles E Davidson v. Jo Anne B Barnhart, No. 5:2007cv00144 - Document 17 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and Order. LET JUDGMENT BE ENTERED ACCORDINGLY. (mz)
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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 CHARLES E. DAVIDSON, ) ) Plaintiff, ) ) v. ) ) ) MICHAEL J. ASTRUE,1 Commissioner of the ) Social Security Administration, ) ) Defendant. ) ___________________________________) NO. EDCV 07-00144-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on February 13, 2007, seeking review of 19 the denial by the Social Security Commissioner ( Commissioner ) of 20 plaintiff s application for disability insurance benefits ( DIB ), and 21 supplemental security income ( SSI ). 22 consented to proceed before the undersigned United States Magistrate 23 Judge pursuant to 28 U.S.C. § 636(c). 24 Stipulation on October 25, 2007, in which: 25 reversing the Commissioner s decision and awarding benefits or, in the On March 6, 2007, the parties The parties filed a Joint plaintiff seeks an order 26 27 28 1 Michael J. Astrue became the Commissioner of the Social Security Administration on February 12, 2007, and is substituted in place of former Commissioner Joanne B. Barnhart as the Defendant in this action. (See Fed. R. Civ. P. 25(d)(1); Section 205(g) of the Social Security Act, last sentence, 42 U.S.C. § 405(g).) 1 alternative, remanding the matter for further administrative 2 proceedings; and defendant seeks an order affirming the Commissioner s 3 decision. 4 under submission without oral argument. The Court has taken the parties Joint Stipulation ( J.S. ) 5 6 SUMMARY OF ADMINISTRATIVE PROCEEDINGS AND DECISION 7 8 9 Plaintiff filed his applications for DIB and SSI on May 12, 2004. (Administrative Record ( A.R. ) 94-96, 429-31.) Plaintiff alleges an 10 inability to work since January 1, 1995, due to schizophrenia, hepatitis 11 C, manic depression, and liver problems. (A.R. 77, 101.) 12 13 Plaintiff s claims were denied initially and upon reconsideration, 14 and on August 1, 2006, plaintiff, who was represented by counsel, 15 testified at a hearing before Administrative Law Judge Joseph D. Schloss 16 ( ALJ ). 17 plaintiff s 18 plaintiff s request for review of the ALJ s decision. (A.R. 438-53.) claims, and On September 29, 2006, the ALJ denied the Appeals Council subsequently denied (A.R. 6-8.) 19 20 In his written decision, the ALJ found that plaintiff has the 21 following severe impairments: schizoaffective disorder bipolar type, 22 osteoarthritis of the cervical spine, and a history of polysubstance 23 dependence. 24 medically determinable impairments could reasonably be expected to 25 produce the alleged symptoms, but [plaintiff s] statements concerning 26 the intensity, persistence and limiting effects of these symptoms are 27 not entirely credible. (A.R. 18.) The ALJ gave significant weight to 28 the opinion of Dr. Linda M. Smith, MD, a Board eligible psychiatrist, (A.R. 16.) The ALJ 2 further found that plaintiff s 1 who performed a consultative psychiatric evaluation of plaintiff on 2 August 3, 2004. 3 plaintiff s residual functional capacity and the vocational expert s 4 testimony, that plaintiff is capable of performing his past relevant 5 work as a warehouse worker. 6 that plaintiff was not under a disability from January 1, 1995, through 7 the date of his decision. (A.R. 19.) Finally, the ALJ found, based upon (A.R. 20.) Accordingly, the ALJ concluded (Id.) 8 9 STANDARD OF REVIEW 10 11 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's 12 decision to determine whether it is free from legal error and supported 13 by substantial evidence in the record as a whole. 14 F.3d 625, 630 (9th Cir. 2007). 15 evidence as a reasonable mind might accept as adequate to support a 16 conclusion. 17 a mere scintilla but not necessarily a preponderance. 18 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)(citation omitted). 19 inferences from the record can constitute substantial evidence, only 20 those reasonably drawn from the record will suffice. 21 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. While Widmark v. 22 23 Although this Court cannot substitute its discretion for that of 24 the Commissioner, the Court nonetheless must review the record as a 25 whole, weighing both the evidence that supports and the evidence that 26 detracts from the [Commissioner s] conclusion. 27 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 28 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 3 Desrosiers v. Sec y of The ALJ is 1 responsible for determining credibility, resolving conflicts in medical 2 testimony, and for resolving ambiguities. 3 1035, 1039-40 (9th Cir. 1995). Andrews v. Shalala, 53 F.3d 4 5 The Court will uphold the Commissioner s decision when the evidence 6 is susceptible to more than one rational interpretation. Burch v. 7 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 8 review only the reasons stated by the ALJ in his decision and may not 9 affirm the ALJ on a ground upon which he did not rely. However, the Court may Orn, 495 F.3d 10 at 630; see also Connett, 340 F.3d at 874. 11 the Commissioner s decision if it is based on harmless error, which 12 exists only when it is clear from the record that an ALJ's error was 13 inconsequential to the ultimate nondisability determination. Robbins 14 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 15 Comm r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 16 F.3d at 679. The Court will not reverse 17 18 DISCUSSION 19 20 Plaintiff alleges the following issues: (1) whether the ALJ 21 properly considered the treating psychiatrists evaluations; (2) whether 22 the ALJ complied with SSR 96-7p, which requires that the ALJ consider 23 the 24 medications; (3) whether the ALJ posed a complete hypothetical question 25 to the vocational expert; and (4) whether the ALJ properly developed the 26 record. 27 /// 28 /// type, dosage, effectiveness, (J.S. at 3.) and side effects of plaintiff s The Court addresses these issues below. 4 1 I. The ALJ Failed To Provide Specific And Legitimate Reasons For 2 Disregarding The Opinions Of Plaintiff s Treating Psychiatrists And 3 Psychologists. 4 5 A treating physician's conclusions "must be given substantial 6 weight." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). If a 7 treating or examining doctor s opinion is contradicted by another 8 doctor s opinion, an ALJ may only reject it by providing specific and 9 legitimate reasons that are supported by substantial evidence. Ryan v. 10 Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)(citations 11 omitted). 12 13 In this case, the ALJ gives significant weight to the opinion of 14 consultative psychiatrist, Dr. Smith, but the ALJ fails to provide any 15 reasons for rejecting the opinions of plaintiff s treating psychiatrists 16 and psychologists at the Loma Linda Veterans Administration Medical 17 Center ( LLVAMC ), the California Department of Corrections, and the 18 Parole Outpatient Clinic. 19 the ALJ s reliance on Dr. Smith s opinion may be reasonable, the ALJ s 20 silent 21 professionals contravenes Ninth Circuit precedent to which this Court 22 must adhere.2 disregard of the (A.R. 19.) opinions Although the Court believes that of plaintiff s mental health 23 24 2 25 26 27 As Dr. Smith s opinion is based upon objective and independent clinical findings, it properly may constitute substantial evidence upon which the ALJ may rely. See Andrews, 53 F.3d at 1041. However, the ALJ nonetheless is required to state specific and legitimate reasons for rejecting the opinions of plaintiff s treating psychiatrists and psychologists, and his failure to do so constitutes error. See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). 28 5 In his portion of the Joint Stipulation, defendant advances various 1 2 bases for 3 plaintiff s physicians and psychologists at the LLVAMC. (See A.R. 5-7.) 4 However, a reviewing court cannot affirm the denial of benefits based on 5 a reason not stated or finding not made by the ALJ, and defendant's 6 after-the-fact attempt to supply acceptable bases for the ALJ's decision 7 is unavailing. 8 reviewing court is constrained to review the reasons the ALJ asserts, 9 and an ALJ's decision cannot be affirmed on the basis of evidence he did 10 not discuss); Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 11 2001)(an agency decision cannot be affirmed on the basis of a ground 12 that the agency did not invoke in making its decision); see also Barbato 13 v. Comm r of Soc. Sec. Admin., 923 F. Supp. 1273, 1276 n.2 (C.D. Cal. 14 1996)(remand is appropriate when a decision does not adequately explain 15 how a decision was reached, [a]nd that is so even if [the Commissioner] 16 can 17 conclusions, because the Commissioner's decision must stand or fall 18 with the reasons set forth in the ALJ's decision, as adopted by the 19 Appeals Council )(citation omitted). offer the ALJ s rejection of the findings and opinions of See, e.g., Connett, 340 F.3d at 874 (noting that a proper post hoc explanations for such unexplained 20 21 Further, in advancing his post hoc rationales, defendant asserts 22 that the records of the LLVAMC do not support a finding of disability 23 that would exist absent drug/alcohol abuse. 24 defendant does not, and can not, assert that plaintiff s substance abuse 25 bars his recovery of benefits, because the ALJ did not undertake the 26 two-step analysis necessary to draw that conclusion. 27 Massanari, 262 F.3d 949 (9th Cir. 2001), the Ninth Circuit addressed the 28 interrelationship between a claimant s 6 (J.S. at 6.) substance However, In Bustamante v. abuse and the 1 determination of his disability, and held that the five-step sequential 2 evaluation must first be conducted without separating out the impact of 3 alcoholism or drug addiction. 4 ALJ found that the plaintiff is not disabled under the five-step inquiry 5 and not entitled to benefits; thus, the ALJ did not undertake an 6 analysis of whether plaintiff s substance abuse is a contributing factor 7 material to his disability determination. 8 plaintiff s treating records, the ALJ concludes that plaintiff is 9 disabled and there is evidence of his continuing drug addiction or 10 alcohol abuse, then the ALJ must determine whether the claimant would 11 still be found disabled if he stopped using drugs and/or alcohol. Given 12 the ALJ s contradictory statements regarding plaintiff s substance 13 abuse,3 further development of the record on this issue would be required 14 before a proper disability determination could be made. Bustamante, 262 F.3d at 955. Here, the If after properly addressing (A.R. 18-19.) 15 16 In sum, this Court cannot confidently conclude that the ALJ s 17 implicit rejection of the opinions of plaintiff s psychiatrists and 18 3 Regarding plaintiff s substance abuse, the ALJ states: 19 20 21 22 23 24 25 26 27 28 [Plaintiff s] history of polysubstance abuse is also well documented as well as his recent consumption of cocaine. (Exhibit B4F, B10F, p. 13) With the exception of his recent substance abuse, the evidence shows that his polysubstance abuse was in full remission for a substantial period of time. The [plaintiff] is now in a dual treatment program for his schizoaffective disorder and cocaine use (Exhibit B10F and B11F). [Plaintiff s] past and recent substance abuse was taken into consideration relative to his residual functional capacity; and I find that [plaintiff s] polysubstance abuse, both past and recent, does not change [plaintiff s] residual functional capacity as described herein. (A.R. 18-19.) Although the ALJ states that plaintiff s past and recent substance abuse was taken into consideration, the ALJ did not undertake the two-step analysis as required under Bustamante. 7 1 psychologists at LLVAMC, the California Department of Corrections, and 2 the Parole Outpatient Clinic constitutes harmless error. The Court will 3 not reverse the Commissioner s decision if it is based on harmless 4 error, which exists when it is clear from the record that the ALJ's 5 error 6 determination. 7 1055-56). 8 is nonprejudicial to [plaintiff] or irrelevant to the ALJ s ultimate 9 disability conclusion. was inconsequential to the ultimate nondisability Robbins, 466 F.3d at 885 (quoting Stout, 454 F.3d at In this case, however, it is unclear whether the ALJ s error Stout, 454 F.3d at 1055. 10 For the reasons stated above, remand is required to allow the ALJ 11 12 to remedy this error. 13 14 II. 15 The ALJ Failed To Consider Properly The Side Effects Of Plaintiff s Medications On His Ability To Work. 16 17 When an ALJ evaluates a claimant s limitations, he must consider 18 evidence regarding the side effects of medications. 19 Ruling 96-7p indicates that the type, dosage, effectiveness, and side 20 effects of any medication the individual takes or has taken to alleviate 21 pain 22 evaluation. See also 20 C.F.R. § 404.1529(c)(3)(iv). The Ninth Circuit 23 has observed that an ALJ must consider all factors that might have a 24 significant impact on an individual s ability to work. 25 Shalala, 9 F.3d 813, 817 (9th Cir. 1993)(citation omitted). 26 factors may include side effects of medications as well as subjective 27 evidence of pain. or other symptoms should be Id. at 818. 28 8 considered in Social Security the disability Erickson v. Such 1 In his decision, the ALJ briefly acknowledges plaintiff s testimony 2 and records regarding the side effects of his medications, but the ALJ 3 does 4 plaintiff s ability to work. Although the ALJ mentions that plaintiff s 5 medications make him jumpy; [that plaintiff] frequently has racing 6 thoughts; and has difficulty sleeping at night, the ALJ neither 7 properly dismisses the significance of these side effects nor, in his 8 hypothetical to the vocational expert, references them.4 9 51.) not expressly consider the impact of these side effects on (A.R. 18, 449- The ALJ is required to consider those side effects in evaluating 10 plaintiff s disability claim, and his failure to do so constitutes 11 error. 12 13 III. Until The ALJ Has Assessed Properly The Opinions Of Plaintiff s 14 Treating Physicians 15 Medications, 16 Hypothetical Posed To The Vocational Expert. The And Court The Can Not Side Effects Assess The Of Plaintiff s Adequacy Of The 17 18 In posing a hypothetical to a vocational expert, the ALJ must 19 accurately reflect all of the claimant s limitations. Embrey, 849 F.2d 20 at 422-24. In order for the vocational expert s testimony to constitute 21 substantial evidence, the hypothetical question posed must consider all 22 4 23 24 25 26 27 On May 5, 2004, plaintiff reported to California Department of Corrections, Parole Outpatient Clinic Psychiatrist, William Lawrence, M.D., that plaintiff experiences decreased appetite, tremor, and jumpiness as a result of the side effects of his medications, which include Buspar, Prozac, Serzone, Zxyprexa, and Neurontin. (A.R. 173.) In a May 19, 2004 Disability Report - Adult, plaintiff stated that: Buspirone makes him drowsy; Risperdal causes nervousness and shaking; and Zyprexa causes him to have slurred speech. (A.R. 105.) Further, at the hearing, plaintiff testified that he experiences fatigue, has to take a lot of naps, and when [he] take[s] [his] medication it escalates [his fatigue]. (A.R. 443-44.) 28 9 1 of the claimant s limitations. Andrews, 53 F.3d at 1044. However, the 2 ALJ is not required to include limitations for which there was no 3 evidence. 4 2001). See Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 5 6 Here, the hypothetical may be incomplete to the extent that it does 7 not reflect the opinions of plaintiff s treating psychiatrists and 8 psychologists or any of plaintiff s reported medication side effects. 9 (A.R. 449-51.) On remand, the ALJ should either properly reject the 10 opinions of plaintiff s treating psychiatrists and psychologists, and 11 discount or dismiss the claimed side effects of plaintiff s medications, 12 in accordance with the appropriate legal standards, or the ALJ must 13 incorporate them into the hypothetical posed to the vocational expert. 14 15 IV. The ALJ Failed To Develop The Record Adequately. 16 17 The ALJ has a special duty to fully and fairly develop the 18 record. 19 ALJ s duty to develop the record further is triggered . . . when the 20 record is inadequate to allow for proper evaluation of the evidence. 21 Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). An 22 23 Plaintiff contends that the ALJ failed to develop the record 24 adequately, because the ALJ incorporated in his decision the prior ALJ s 25 decision and accompanying exhibits but those exhibits are not included 26 27 28 10 the present record.5 1 in 2 progressive nature of plaintiff s mental impairment(s), it is critical 3 that the ALJ meet his affirmative duty to ensure the record is not 4 inadequate to allow for proper evaluation of the evidence. 5 276 F.3d at 459-60. The Court agrees. Given the possibly Mayes, 6 7 In the prior decision, the relevant, referenced exhibits include: 8 (1) plaintiff s 9 Department of Mental Health from 2/99, through 5/99; (2) records 10 reflecting State Agency findings from 3/98 and 5/98; (3) records 11 relating to a consultative internal medicine examination and evaluation 12 of plaintiff in or about January 1998; (4) records relating to a 13 consultative psychiatric examination and evaluation of plaintiff dated 14 1/30/98; 15 Corrections, State of California, from 11/95, through 10/97; and (6) 16 plaintiff s medical records from LLVAMC from 2/98, through 4/98. 17 exhibits, as indicated in the Court Transcript Index, are not available 18 for inclusion [in the present record] but are incorporated by reference 19 with the current decision. (5) medical plaintiff s records from medical the records San from Bernardino the County Department of These (A.R. 1.) 20 21 Defendant contends that the ALJ had no duty to further develop the 22 record, because the ALJ incorporated by reference the prior decision and 23 accompanying exhibits only as a threshold step, which permitted him to 24 conclude that plaintiff demonstrated changed circumstances and, thus, 25 26 5 27 28 Plaintiff has had five separate applications for disability insurance benefits denied, the most recent of which, other than the instant denial, occurred on July 27, 1999, and is the prior decision to which the ALJ refers. (A.R. 13, 41-50, 53-71.) 11 1 rebutted successfully the presumption of continuing non-disability.6 2 (J.S. at 19-20.) 3 not fully address the issue. 4 an affirmative duty to make efforts to obtain missing exhibits, which, 5 although incorporated by reference in the ALJ s decision at issue, are 6 not now available for review. 7 allow for proper evaluation of the evidence (Mayes, 276 F.3d at 459- 8 60), and there is no indication that the ALJ made any attempt to develop 9 an adequate record by securing these missing exhibits. While defendant s contention may be correct, it does The Court believes that the ALJ still had At present, the record is inadequate to 10 11 Finally, although defendant argues that the ALJ properly discharged 12 his duty to develop the record by leaving the record open after the 13 hearing for the submission of additional records from LLVAMC, simply 14 leaving the record open was insufficient to discharge the ALJ s duty 15 to fully and fairly develop the record.7 16 and the Court are entitled to review the entirety of the evidence relied 17 upon by the ALJ in support of his challenged decision and cannot do so 18 here. 19 obtain the missing exhibits constitutes error. (J.S. at 20.) Both plaintiff Accordingly, the ALJ s failure to make any affirmative effort to 20 21 6 25 It is well-settled that a prior final determination that a claimant is not disabled creates a presumption of continuing non-disability with respect to any subsequent unadjudicated period of alleged disability. Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985); Lyle v. Sec y, 700 F.2d 566, 568 (9th Cir. 1983). The claimant can, however, overcome this burden by proving changed circumstances, such as the existence of an impairment not previously considered, an increase in the severity of an impairment, or a change in the claimant s age category. Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). 26 7 22 23 24 27 28 Moreover, the transcript of the August 1, 2006 hearing before the ALJ makes clear that the record was actually being left open for the submission of more current, not past, records of plaintiff s treatment by LLVAMC, i.e., for the submission of any treatment records from October or November of 2005, through July 2006. (A.R. 451-52.) 12 1 V. Remand Is Required. 2 3 The decision whether to remand for further proceedings or order an 4 immediate award of benefits is within the district court s discretion. 5 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 6 useful purpose would be served by further administrative proceedings, or 7 where the record has been fully developed, it is appropriate to exercise 8 this discretion to direct an immediate award of benefits. 9 ( the decision of whether to remand for further proceedings turns upon Where no Id. at 1179 10 the likely utility of such proceedings ). 11 outstanding issues that must be resolved before a determination of 12 disability can be made, and it is not clear from the record that the ALJ 13 would be required to find the claimant disabled if all the evidence were 14 properly evaluated, remand is appropriate. Id. 15 Barnhart, 2004)(remand 16 proceedings is appropriate if enhancement of the record would be 17 useful). 379 F.3d 587, 593 (9th However, where there are Cir. See, e.g., Benecke v. for further 18 19 Where, as in this case, the opinions of treating physicians were 20 rejected without having been addressed in accordance with the governing 21 legal standards, remand is appropriate to allow the ALJ the opportunity 22 to 23 rejection. 24 provided 25 limitations, 26 medication, as discussed above. 27 119 F.3d 789, 793-94 (9th Cir. 1997)(remanding where vocational expert s 28 testimony did not address all limitations). provide the proper reasons, if such reasons exist, for this In addition, the ALJ should ensure that the hypothetical to the vocational including those expert reflects resulting from all the the side plaintiff s effects of See, e.g., Light v. Soc. Sec. Admin., 13 CONCLUSION 1 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 14 DATED: September 29, 2008 /s/ MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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