Patrick T Forsythe v. Michael J Astrue, No. 5:2007cv00454 - Document 20 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The Agency's decision is REVERSED and the action is REMANDED for further proceedings consistent with this opinion. (READ ATTACHED OPINION AND ORDER) (esa)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 PATRICK T. FORSYTHE, 11 Plaintiff, 12 13 v. 14 MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 07-454-PJW MEMORANDUM OPINION AND ORDER 16 17 Before the Court is Plaintiff s appeal of a decision by Defendant 18 Social Security Administration ( the Agency ), denying his application 19 for disability insurance benefits and supplemental security income. 20 For the reasons set forth below, the Agency s decision is REVERSED and 21 the action is REMANDED for further proceedings consistent with this 22 opinion. 23 This is the third time that this matter has come before the 24 Court. Plaintiff s application for disability benefits, alleging 25 disability since November 1, 1997, was denied by the Agency on April 26 19, 2001. 27 On August 8, 2002, this Court remanded the case (based on the parties 28 stipulation) for a new hearing and further development of the record. (Administrative Record ( AR ) 10-15.) Plaintiff appealed. 1 (AR 291-94.) Meanwhile, on April 15, 2002, Plaintiff filed a new 2 application for supplemental security income. 3 were joined. 4 Appeals Council directed the Administrative Law Judge ( ALJ ) to give 5 further consideration to lay witness testimony, evaluate the October 6 1999 opinion of Dr. Beler, Plaintiff s treating psychiatrist, update 7 the record, and further consider Plaintiff s residual functional 8 capacity in light of the treating opinions and other medical source 9 statements. (AR 278.) Ultimately, the cases In its remand order of December 26, 2002, the (AR 296-98.) 10 After a new hearing before the same ALJ on remand, the ALJ again 11 denied Plaintiff s applications in a decision dated December 3, 2003. 12 (AR 278-84.) 13 the case on July 27, 2005, finding that the ALJ had not complied with 14 the Appeals Council s instruction to obtain medical source statements 15 from treating physicians and did not properly consider the diagnoses 16 and functional capacity assessments provided by treating sources Dr. 17 Beler and Dr. Montenegro. 18 Plaintiff appealed. This Court reversed and remanded (AR 640-47.) On remand, a different ALJ held two more hearings and issued a 19 decision, again denying benefits. 20 found that Plaintiff had severe impairments consisting of degenerative 21 arthritis involving the knees and right wrist, asthma, attention 22 deficit disorder, depressive disorder, not otherwise specified, 23 obesity, hyperlipidemia, and gastroesophageal reflux disease, the ALJ 24 determined, consistent with the testimony of a vocational expert, that 25 Plaintiff s residual functional capacity would permit him to work. 26 (AR 452-57.) 27 28 (AR 449-58.) Although the ALJ Plaintiff, again, appealed to this Court. Plaintiff raises three claims of error, all of which relate to the ALJ s consideration of the mental health evidence. 2 In his first 1 claim, Plaintiff contends that the ALJ failed to properly consider a 2 1999 diagnosis by Dr. Belen, Plaintiff s treating psychiatrist. 3 (Joint Stip. at 3-5.) 4 the ALJ ignored a mental assessment by examining psychiatrist Dr. 5 Hurwitz. 6 contends that the ALJ failed to properly consider a diagnosis and 7 Global Assessment of Functioning ( GAF ) score by his treating 8 clinician. 9 In his second claim, Plaintiff contends that (Joint Stip. at 10-11.) And, in his third claim, Plaintiff (Joint Stip. at 12-13.) In the Court s July 27, 2005 Memorandum Opinion and Order, it 10 noted the Appeals Council s remand instruction that the ALJ must 11 consider the diagnoses endorsed by ... Dr. Beler and the functional 12 capacity assessment provided by treating source Guia Montenegro, M.D., 13 and determine whether those reports are consistent with each other and 14 with the underlying clinical progress notes. 15 then noted that the ALJ s treatment on remand of this evidence was 16 sparse and that it ignore[d] an important aspect of the Appeals 17 Council s mandate ... The omission matters because the Appeals Council 18 also required the ALJ to explain the weight he gave the treating 19 source opinions. 20 (AR 646.) The ALJ did not do this, either. The Court (AR 647.) Unfortunately, the ALJ s latest decision does little to rectify 21 the earlier omissions. 22 of Plaintiff s mental impairments with respect to the period between 23 October 1999 and September 2004 is limited to the following: 24 As noted in the preceding decisions in this matter, the 25 medical evidence of record at that time showed [Plaintiff] 26 had started mental health treatment in October 1999 for what 27 was diagnosed as attention deficit hyperactivity disorder 28 and anxiety and depressive disorders, not otherwise The ALJ s assessment of the medical evidence 3 1 specified, that the diagnoses were soon changed to bipolar 2 affective disorder and polysubstance dependence disorder, 3 and that by November 2000 his condition improved and was 4 stable with counseling and medication despite the apparent 5 ongoing use of alcohol ... The medical evidence of record 6 submitted in relation to the current proceedings, as it 7 relates to the period covered by the preceding decisions, is 8 duplicative and otherwise cumulative of the evidence of 9 record at the time of the preceding decisions, and certainly 10 does not reflect any other significant chronic physical or 11 mental problems. 12 13 (AR 452-53.) In other words, despite being specifically directed by this Court 14 to heed the Appeals Council s command to consider the treating 15 physicians diagnoses and functional capacity assessments and to 16 explain whether those treating source statements were consistent with 17 the remaining medical evidence, the ALJ relied on the previous ALJ s 18 decisions, which had been reversed, to gloss over the various medical 19 opinions. 20 This was error. Defendant contends that the ALJ appropriately developed the 21 record, gathering and analyzing medical evidence developed over the 22 last eight years. 23 decision belies this contention. 24 (Joint Stip. at 6.) A review of the ALJ s As noted, the ALJ failed to properly consider Dr. Belen s 25 diagnosis. 26 depressive disorder, and anxiety disorder, and had a GAF of 47. 27 310.)) 28 Technique Form completed by state agency reviewing physician Dr. (He found that Plaintiff suffered from ADHD disorder, (AR Additionally, the ALJ did not discuss the Psychiatric Review 4 1 Hurwitz on June 6, 2000, which indicated that Plaintiff had moderate 2 restrictions in activities of daily living, moderate difficulties in 3 maintaining social functioning, and moderate deficiencies of 4 concentration, persistence, or pace, (AR 211), as well as moderate 5 limitations in his ability to understand, remember, and carry out 6 detailed instructions; to maintain attention and concentration for 7 extended periods; to work in coordination with others; to interact 8 with the general public; to accept instructions from supervisors; and 9 to respond appropriately to changes in the work setting. 10 (AR 213-14.) Nor did the ALJ discuss the psychiatric evaluation performed by 11 the consultative, examining psychiatrist, Dr. Smith, on December 7, 12 2000, (AR 255-61), or determine whether it was consistent with 13 treating psychiatrist Dr. Montenegro s March 14, 2001 opinion, in 14 which he concluded that Plaintiff had marked limitations in numerous 15 work-related abilities. 16 the psychiatric evaluation by consulting examiner Dr. Damerla on July 17 12, 2003, which found that Plaintiff was moderately impaired in 18 various work-related functions and severely impaired in his ability to 19 relate to and interact with supervisors and the public. 20 This evidence, at the very least, undermines the ALJ s finding that 21 by November 2000 [Plaintiff s] condition improved and was stable with 22 counseling and medication despite the apparent ongoing use of 23 alcohol, (AR 452), and that the medical evidence as it relates to 24 the period covered by the preceding decisions ... certainly does not 25 reflect any other significant chronic ... mental problems. 26 (AR 265-66.) The ALJ also failed to consider (AR 408-16.) (AR 453.) Although an ALJ need not discuss every piece of evidence in the 27 record, Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984), 28 here, the ALJ not only failed to analyze reports by Plaintiff s 5 1 treating and examining physicians in the face of clear directions to 2 do so from this Court and the Appeals Council, he also erroneously 3 relied on previously rejected administrative decisions as a substitute 4 for that analysis. 5 Defendant contends that the ALJ was entitled to rely on the 6 testimony of medical expert Dr. Saltz in making his residual 7 functional capacity determination. 8 [o]pinions of a nonexamining, testifying medical advisor may serve as 9 substantial evidence when they are supported by other evidence in the (Joint Stip. at 8.) Although 10 record and are consistent with it, the ALJ must set[] out a 11 detailed and thorough summary of the facts and conflicting clinical 12 evidence, stating his interpretation thereof, and making findings. 13 Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 600-01 (9th Cir. 14 1999) (quoting Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 15 1989)). 16 here, but, instead, relied on previous decisions, which were 17 themselves reversed for failure to completely discuss or develop the 18 medical evidence from Plaintiff s treating physicians.1 19 As discussed above, the ALJ did not fulfill that obligation In sum, the ALJ s failure to correct the errors of the earlier 20 decisions by assessing the evidence of Plaintiff s mental impairments 21 from treating and other sources and determining the weight to be given 22 that evidence mandates reversal. 23 undeveloped with respect to these opinions, the Court is not in a Because the record remains 24 25 26 27 28 1 Although Dr. Saltz briefly referred to Dr. Smith s report at the hearing, that was only in connection with Plaintiff s alleged alcohol use at the time. (AR 491.) Indeed, the ALJ agreed that the report showed only moderate drinking. (AR 491.) Otherwise, Dr. Saltz did not refer specifically to any treating or examining reports prior to 2004. 6 1 position to say with certainty whether the medical and other evidence 2 compels the conclusion that Plaintiff is disabled under the 3 regulations. 4 See Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). 5 remand for further proceedings is necessary to enable the ALJ to 6 address the opinions of Plaintiff s treating and examining 7 psychiatrists, as discussed above, to determine what weight to give 8 those opinions, to determine whether those opinions are consistent 9 with the other evidence in the record, and then to conduct any further 10 11 Thus, remand for an award of benefits is not justified. Instead, proceedings that may be necessary. IT IS SO ORDERED. 12 DATED: September 10 , 2008. 13 14 15 16 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-CLOSED\Closed-Soc Sec\FORSYTHE, P 454\Memo_Opinion.wpd 7
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