Heather Reese v. Michael J Astrue, No. 5:2011cv00149 - Document 16 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, The Court reverses the ALJs decision, and remands this matter for further hearing consistent with this Memorandum Opinion. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 HEATHER REESE, o/b/o J.R., 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 11-00149-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have 21 consented that the case may be handled by the Magistrate Judge. The 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record ( AR ) before the Commissioner. The parties have filed the 25 Joint Stipulation ( JS ), and the Commissioner has filed the certified 26 AR. 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) properly 1 2 considered the consultative examiner s opinion; 2. Whether the ALJ properly assessed Plaintiff s residual 3 4 functional capacity; 3. Whether the ALJ posed incomplete hypothetical questions to 5 6 the vocational expert; and 4. Whether the ALJ s Step Five determination that Plaintiff is 7 capable of performing the jobs of bench assembler and 8 inspector/hand 9 evidence. 10 packager is supported by substantial (JS at 3.) 11 12 This Memorandum Opinion will constitute the Court s findings of 13 fact and conclusions of law. After reviewing the matter, the Court 14 concludes 15 Commissioner must be reversed and the matter remanded. that for the reasons set forth, the decision of the 16 17 I 18 THE ALJ DID NOT PROPERLY CONSIDER THE PSYCHOLOGICAL 19 CONSULTATIVE EXAMINER S OPINION REGARDING THE EFFECTS OF 20 PLAINTIFF S HUNTINGTON S DISEASE 21 This matter originally proceeded to an administrative hearing 22 before the ALJ on August 28, 2007. (AR 375-400.) At that hearing, 23 which occurred after the death of Jason Reese, testimony was taken 24 from Dr. Laudau, a medical expert ( ME ), in addition to testimony 25 from a vocational expert ( VE ), and from Heather Reese, Jason Reese s 26 daughter. 27 to Jason Reese s death, which occurred on February 19, 2007 (AR 404), 28 she observed that he had problems with physical activities, such as Heather Reese testified that in the two-year period prior 2 1 getting in and out of his truck; with gripping and handling things (he 2 would drop things all the time ); and with fatigue. (AR 389-390.) 3 Significantly, she testified that he had problems concentrating. 4 example, he had historically braided his daughter s hair, but could no 5 longer focus enough to do it any more. 6 concentrate enough to read a book or work on a computer. 7 Reese indicated that she observed these events in the latter part of 8 2005. (AR 390-391.) For He could no longer sit and Heather 9 In the first decision in this matter issued by the ALJ on 10 September 21, 2007 (AR 10-18), the credibility of Heather Reese s 11 observations was depreciated as being not supported by the mild 12 objective findings. (AR 14.) 13 neurological examination on June 28, 2004; and another neurological 14 consultative examination ( CE ) on September 30, 2005, in addition to 15 an internal medicine CE which was conducted on June 17, 2006. (AR 14- 16 15.) The ALJ relied upon these examinations to support his conclusion 17 that Jason Reese s physical abilities and concentration were not as 18 impaired as Heather Reese s testimony indicated. 19 placed on the ME, who testified that Jason Reese s condition worsened 20 toward the end of 2006. (AR 15-16.) 21 a CE conducted by clinical psychologist Dr. Riahinejad on September 22 27, 2005. (AR 322-326.) 23 Dr. Riahinejad s report (see AR at 378), he made no mention of it in 24 his testimony at the first administrative hearing. (See AR at 378- 25 388.) 26 The ALJ made reference to a normal Reliance was also Little attention was focused on Although the testifying ME likely reviewed In the ALJ s first decision, he found that Jason Reese had severe 27 impairments, including Huntington s 28 acknowledged that Jason Reese had been found to carry the Huntington s 3 Disease. (AR 12.) The ALJ 1 Disease mutation gene in October 2004. (AR 14.) At the first hearing, 2 the ME described Huntington s Disease as a congenital degenerative 3 disease of the brain, ... (AR 386.) 4 the ME s testimony included the following: And you develop dementia 5 movements and eventually you lose the ability to move ... 6 gradual deterioration of the mind and the body. (AR 387.) As to its symptomology, part of And it s a 7 The ALJ s unfavorable decision, which was upheld by the Appeals 8 Council (AR 2-4), resulted in a lawsuit being filed in the District 9 Court, which was assigned to the undersigned (see United States 10 District Court, Central District of California, Case No. CV 09-340- 11 VBK). 12 pursuant to Sentence 4 of 42 U.S.C. § 305(g). 13 provided, in part, the following: The parties entered into a Stipulation to Voluntary Remand The Stipulation 14 Upon remand, the Administrative Law Judge (ALJ) will 15 be directed to reconsider the lay witness evidence from 16 Plaintiff s 17 daughter s opinion, the ALJ shall provide reasons germane to 18 that witness for doing so. 19 action necessary to complete the administrative record. 20 daughter. If the ALJ rejects Plaintiff s The ALJ shall take any further (AR 414-415.) 21 22 23 Thereafter, the Appeals Council issued an Order remanding the case to the ALJ, with the following instructions: 24 The decision addressed the lay witness testimony; 25 however, it did not provide the reasons the Administrative 26 Law Judge rejected the lay witness evidence submitted from 27 the claimant s daughter that was favorable to the claimant 28 (Tr. 10, 377, 389-390). The claimant passed away prior to 4 1 the hearing. The claimant s daughter testified that the 2 claimant had problems with walking, gripping, handling, 3 climbing stairs, concentration, and depression as far back 4 as 2005. The Administrative Law Judge s residual functional 5 capacity 6 physical limitations; however, it did not include the mental 7 limitations expressed by the daughter s testimony such as 8 the claimant s problems with concentration and depression. 9 Accordingly, further evaluation of the law witness evidence assessment 10 Upon some of the claimant s is necessary. 11 addressed remand, the Administrative Law Judge will 12 reconsider the law witness evidence from the claimant s 13 daughter and provide reasons germane to that witness if 14 rejecting the opinion and take any further action necessary 15 to complete the administrative record. 16 (AR 420-421.) 17 18 Following this remand order by the Appeals Council, a second 19 hearing was held on July 28, 2010 before the same ALJ. (AR 448-453.) 20 Heather Reese appeared, and was represented by counsel. No additional 21 testimony was taken from Ms. Reese, and the ALJ indicated that, 22 What s required is further testimony from the vocational expert about 23 how memory problems might impact in the jobs that were identified. 24 (AR 450.) 25 no limitations as to concentration or related mental factors. (AR 26 451.) 27 would be limited to simple, repetitive tasks. (Id.) The VE indicated 28 that The ALJ then posed a hypothetical to the VE which included What was added to the hypothetical was that the individual this hypothetical would not 5 change the jobs previously 1 2 identified. (AR 452.) On September 14, The hearing then ended. 2010, the ALJ issued another unfavorable 3 decision. (AR 404-414.) 4 second hearing, the ALJ summarized her testimony at the first hearing, 5 including that she noticed that Jason Reese was having difficulty with 6 depression and concentration in late 2005. (AR 408.) 7 reiterating the other medical and neurological evidence which he had 8 discussed in his first decision (AR 408), and the testimony of the ME 9 at that prior hearing, the ALJ essentially rejected Ms. Reese s 10 testimony. Noting that Ms. Reese did not testify at the Again, however, The following constitutes his discussion: 11 With regard to the daughter s testimony that the 12 claimant was depressed and had poor concentration, there is 13 no evidence that such would preclude the performance of 14 simple, repetitive tasks. 15 of a psychiatric impairment, or repeated hospitalizations, 16 or of prolonged outpatient treatment. 17 required nor received extensive psychiatric treatment and 18 useed no psychotropic medications. 19 a psychological consultative examination on September 27, 20 2005. 21 memory. At the neurological examination in 2004, memory was 22 good. 23 September 24 impaired. 25 There is no longitudinal history The claimant neither The claimant underwent Concentration and attention span were fair as was At the neurological consultative examination in 2005, attention and concentration were not (AR 409-410, Exhibit references omitted). 26 27 The Appeals Council denied review, and this lawsuit ensued. 28 the reasons to be discussed, the Court reverses the decision of the 6 For 1 ALJ, and remands the matter for further hearing. 2 Although, consistent with the prior stipulation of the parties 3 and this Court s Order and Judgment, the Appeals Council ordered that 4 the ALJ reevaluate Heather Reese s testimony with regard to Jason 5 Reese s difficulties with concentration and similar matters, what 6 occurred, essentially, was simply another rejection of Heather Reese s 7 testimony, based on the same evidence which had been taken at the 8 first hearing. 9 examination and report of the psychological CE, Dr. Riahinejad.1 Again, no substantial discussion was devoted to the 10 It would appear that if, indeed, the ALJ implicitly rejected Dr. 11 Riahinejad s findings, it was because of his stated reliance on the 12 fact that Jason Reese had no history of psychiatric treatment or 13 repeated hospitalizations, or any prolonged outpatient treatment. 14 This theme appears to be reiterated by the Commissioner in his portion 15 of the JS, where he argues that there is no evidence in the record 16 that Plaintiff ever complained of psychological symptoms, or ever 17 sought psychological treatment. (JS at 6, with citations.) 18 Commissioner indicates that, The only evidence of mental impairment 19 is the report of the psychological consultative examiner. (Id.) 20 Commissioner continues by noting that, As the ALJ pointed out, there 21 is no evidence that Plaintiff sought out any psychological treatment 22 (JS at 7, citations omitted), and finally, the Commissioner notes that 23 Dr. Riahinejad did not diagnose any actual psychological condition. 24 (Id., citation to record omitted.) 25 The The Thus, the foundation upon which the ALJ appears to have rejected 26 27 28 1 In any event, the ALJ s characterization of Dr. Riahinejad s findings, as reflecting fair concentration and attention span inaccurately interprets that report. (See, infra.) 7 1 Heather Reese s testimony appears to be that Huntington s Disease has 2 symptoms which manifest themselves only in physical or neurological 3 ways. 4 that this disease represents a gradual deterioration of the mind and 5 the body. (AR 387.) 6 Encyclopedia, it appears to be the case that Huntington s Disease, 7 also known as Huntington s Chorea, may be accompanied by dementia 8 which may include the following symptoms: disorientation or confusion; 9 loss of judgment; loss of memory; personality changes; and speech But, as noted, the testimony of the ME at the first hearing was Indeed, as set forth in A.D.A.M. Medical 10 changes. Dr. Riahinejad specifically found that although Jason Reese 11 is able to understand and remember complex instructions, his ability 12 to carry out such instructions seems to be impaired, due to the 13 complications of his Huntington s Disease. He also has significant 14 difficulty with persistence. 15 Riahinejad found that Jason Reese could understand, remember, and 16 carry them out with difficulty. Certainly, the testimony of Heather 17 Reese at the first hearing consistently supported such observations, 18 which Heather Reese first noticed at the beginning of 2005. The ALJ s 19 finding (AR 407) that Jason Reese is capable of performing simple, 20 repetitive tasks in a full-time workday and workweek is suspect, if 21 credence is accorded to the observations of Heather Reese and the 22 functional findings of the 2005 psychological CE. 23 the ALJ of these opinions and observations appears to be based on a 24 misapprehension that psychological symptoms from Huntington s Disease 25 either 26 treatment. 27 Huntington s Disease. 28 decision which relies on these concepts is faulty and unsustainable. do not exist, or must Even as to simple instructions, Dr. be corroborated The rejection by by psychological Yet, as the ME testified, there is no treatment for Consequently, the underpinning of the ALJ s 8 1 Certainly, in the accepted parlance which governs evaluation of 2 examining opinions in Social Security cases, the ALJ failed to provide 3 specific and legitimate reasons supported by substantial evidence in 4 the record. 5 1995); Regennitter v. Commissioner, 166 F.3d 1294, 1299 (9th Cir. 6 1999). 7 See Lester v. Chater, 81 F.3d 821, 830-831, 834 (9th Cir. These defects in the ALJ s decision necessitate remand for 8 further consideration. The remaining issues need not be discussed in 9 any detail, because the error as to the first issue affects these 10 issues. Thus, as to the second issue, whether the ALJ properly 11 assessed Plaintiff s 12 conclusions, again, were based upon rejection of Dr. Riahinejad s and 13 Heather Reese s testimony. 14 posed an incomplete hypothetical question to the VE, is materially 15 affected by the Court s conclusions as to the first issue, since the 16 hypothetical 17 Plaintiff s ability to concentrate, or other mental manifestations of 18 Huntington s disease as reflected in Dr. Riahinejad s report, and in 19 Heather Reese s observations. 20 ALJ erred at Step Five in finding that Jason Reese was capable of 21 performing his past relevant work, will require reevaluation based 22 upon the Court s finding and conclusions as to the error concerning 23 the first issue. 24 // 25 // 26 // 27 // 28 // question residual functional capacity, the ALJ s The third issue, as to whether the ALJ did not include any limitations as to Finally, the fourth issue, whether the 9 1 Based upon the foregoing, the Court reverses the ALJ s decision, 2 and remands this matter for further hearing consistent with this 3 Memorandum Opinion. 4 IT IS SO ORDERED. 5 6 7 DATED: October 17, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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