-JCG Jerry Vicek v. Michael J Astrue, No. 5:2011cv01447 - Document 14 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi, IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JERRY VICEK, 12 13 14 Plaintiff, v. 15 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 Defendant. 17 ) Case No. ED CV 11-1447 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 Jerry Vicek ( Plaintiff ) challenges the Social Security Commissioner s 20 decision denying his application for disability benefits. Specifically, Plaintiff 21 contends that the Administrative Law Judge ( ALJ ) improperly rejected the opinion 22 of Plaintiff s treating psychiatrist, Dr. David Aryanpur. (Joint Stip. at 4.) The Court 23 agrees with Plaintiff. 24 As a general rule, more weight should be given to the opinion of a treating 25 source than to the opinion of doctors who do not treat the claimant. Lester v. 26 Chater, 81 F.3d 821, 830 (9th Cir. 1995); accord Benton ex rel. Benton v. Barnhart, 27 331 F.3d 1030, 1036 (9th Cir. 2003). This is so because a treating physician is 28 employed to cure and has a greater opportunity to know and observe the patient as 1 an individual. Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). 2 Where the treating doctor s opinion is contradicted by another doctor, the 3 [ALJ] may not reject this opinion without providing specific and legitimate reasons 4 supported by substantial evidence in the record[.] Lester, 81 F.3d at 830 (internal 5 quotation marks and citation omitted). The ALJ can meet the requisite specific and 6 legitimate standard by setting out a detailed and thorough summary of the facts and 7 conflicting clinical evidence, stating his interpretation thereof, and making findings. 8 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (internal quotation marks 9 and citation omitted). 10 Here, non-examining state agency consultants disagreed with the treating 11 psychologist, Dr. Aryanpur, as to the extent of Plaintiff s disability. (See AR at 33.) 12 In his decision, the ALJ sided with the non-examining consultants and gave the 13 treating opinion [l]ittle weight. (Id.) In support, the ALJ found that Dr. 14 Aryanpur s opinion (1) overstated the extent of Plaintiff s hallucinations, (2) 15 exaggerated Plaintiff s appearance and cleanliness, and (3) was a product of 16 conflicting interests. Applying the specific and legitimate standard, the Court 17 addresses and rejects each of these reasons in turn. 18 A. The Extent of Plaintiff s Hallucinations 19 The ALJ first notes that Plaintiff, despite continuing to experience 20 hallucinations, has acknowledged that [they have] decreased with medication. 1/ 21 (AR at 34.) Presumably, then, the ALJ believes that Dr. Aryanpur exaggerated the 22 extent of Plaintiff s hallucinations. This conclusion, however, is troubled by two 23 24 1/ In the same sentence, the ALJ also mentions that while the claimant had a 25 flat or blunt affect and continued to report experiencing hallucinations, he . . . was 26 consistently noted as having attention and concentration that were within normal limits. (AR at 34.) The Court is unable to discern the relevance of these 27 statements, and notes that this lack of clarity strengthens its finding that a specific 28 and legitimate reason was not provided here. 2 1 facts. 2 First, and most concerning, both of Dr. Aryanpur s work capacity assessments 3 are silent in regards to Plaintiff s hallucinations. (See AR at 323-24, 330-32.) His 4 opinion, therefore, could not have exaggerated these symptoms, as the ALJ alleged. 5 (See AR at 34.) 6 Second, the bite of the ALJ s criticism is significantly reduced by Dr. 7 Aryanpur s own records, which also recognize that Plaintiff s hallucinations have 8 improved. (See AR at 300 ( getting better ), 339 ( a little better mostly at night ), 9 343 ( a little better ), 347 ( a little better . . . but still [occurs] daily ), 358 ( [down] 10 from before ), 365 ( less intense and able to ignore them slightly ); see also 360 11 (indicating positive response to medication), 364-65 (same), 367 (same), 370 12 (same).) To discredit Dr. Aryanpur for not being cognizant of these improvements 13 as the ALJ did would therefore ignore the record as a whole. See Mayes v. 14 Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (permitting reversal when ALJ s 15 findings are not supported by substantial evidence in the record as a whole ). 16 In short, the evidence presented here by the ALJ does not actually conflict, 17 and thus the present reason does not qualify as a specific and legitimate one. See 18 Magallanes, 881 F.2d at 751 (requiring a detailed and thorough summary of . . . 19 conflicting clinical evidence ). 20 B. Plaintiff s Appearance and Cleanliness 21 The ALJ next found that Dr. Aryanpur also exaggerated Plaintiff s appearance 22 and cleanliness, stating that [w]hile [Plaintiff] was disheveled on a few occasions, 23 his appearance has been more often noted as being appropriate. (AR at 34.) This 24 finding, however, is inadequate for three reasons. 25 First, the ALJ s observation concerning the frequency of Plaintiff s poor 26 appearance, even if true, is beside the point. Dr. Aryanpur judged Plaintiff s 27 appearance not by frequency, but by what is required to maintain employment. For 28 instance, in his July 12, 2010 assessment, a guide explained Dr. Aryanpur s answer 3 1 as involving a substantial loss of ability to perform the work-related activity. (See 2 AR at 323 (emphasis added).) 3 Similarly, in his July 15, 2010 evaluation, Dr. Aryanpur was asked to 4 determine [Plaintiff s] ability to do work-related activities on a day-to-day basis in 5 a regular work setting. (Id. at 330 (emphasis added).) Only in this context did Dr. 6 Aryanpur discuss Plaintiff s ability . . . to adhere to basic standards of neatness and 7 cleanliness. (Id. at 331.) Put simply, the standard to sustain employment is not 8 whether one appears clean more often than not. Undoubtedly, employers have 9 higher expectations from their employees, and by failing to appreciate this 10 difference, the ALJ s criticism misses the mark. 11 Second, Dr. Aryanpur exhibited a significant degree of caution in assessing 12 Plaintiff s appearance. In his July 12, 2010 assessment, Dr. Aryanpur described 13 Plaintiff s ability to adhere to basic standards of neatness and cleanliness as 14 [s]eriously limited, but not precluded. (AR at 324 (emphasis added).) According 15 to the guide, this meant that Plaintiff s appearance was, among other things, less 16 than satisfactory. (Id.) Likewise, in his July 15, 2010 evaluation, Dr. Aryanpur 17 described the same ability as marked, which again meant severely limited, but not 18 precluded. (AR at 330-31 (emphasis added).) Taken as a whole, these responses 19 reflect an even-handed understanding that Plaintiff had significant, but certainly not 20 pervasive difficulties with his appearance and cleanliness. 21 Third, and relatedly, these moderate findings are not without support. Indeed, 22 the record contains numerous references to Plaintiff s disheveled appearance. (See 23 AR at 307 (noting Plaintiff s greasy hair, holes in [his] jacket, [and] clothes [with] 24 soil stains ), 372 (mentioning Plaintiff s body odor); see also AR at 285, 290, 305, 25 343, 358, 364.) 26 Thus, the ALJ failed to demonstrate that Dr. Aryanpur exaggerated Plaintiff s 27 appearance or cleanliness. The specific and legitimate standard, therefore, was not 28 met here. 4 1 C. Dr. Aryanpur s Alleged Conflict of Interest 2 The ALJ s final reason in support of his credibility determination involves an 3 allegation that Dr. Aryanpur was assisting [Plaintiff] with his disability claim. 4 (AR at 34.) The ALJ failed to explain this accusation any further, and thus failed to 5 provide a specific and legitimate reason supporting his credibility determination. 6 See Magallanes, 881 F.2d at 751 (requiring a detailed and thorough summary of the 7 facts supporting credibility findings). 8 For the sake of thoroughness, however, the Court assumes a conflict is being 9 implied because Dr. Aryanpur s opinions were offered in response to questionnaires 10 from Plaintiff s counsel. (See AR at 323-24, 330-31.) Such cooperation is to be 11 expected, however, and does not suggest that Dr. Aryanpur s answers were 12 untruthful or untrustworthy. 13 Thus, for the above reasons, the ALJ failed to offer any specific and legitimate 14 reasons to support his rejection of Dr. Aryanpur s credibility. Without such reasons, 15 the mere existence of contrary, non-examining opinions as is the case here 16 cannot discredit the treating opinion. Lester, 81 F.3d at 831. Accordingly, the Court 17 determines that the ALJ s decision is not supported by substantial evidence. See 18 Mayes, 276 F.3d at 458-59. 19 D. Reversal and Remand is Warranted 20 With error established, this Court has discretion to remand or reverse and 21 award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no 22 useful purpose would be served by further proceedings, or where the record has been 23 fully developed, it is appropriate to exercise this discretion to direct an immediate 24 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). 25 Where there are outstanding issues that must be resolved before a determination can 26 be made, or it is not clear from the record that the ALJ would be required to find 27 plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. 28 See id. at 594. 5 1 Here, in light of the ALJ s error, Dr. Aryanpur s credibility must be properly 2 assessed. Therefore, on remand, the ALJ shall reevaluate the opinions of Dr. 3 Aryanpur and either credit them as true, or provide valid reasons for any portion that 4 is rejected. 5 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 6 REVERSING the decision of the Commissioner denying benefits and 7 REMANDING the matter for further administrative action consistent with this 8 decision.2/ 9 10 Dated: September 25, 2012 11 ____________________________________ 12 Hon. Jay C. Gandhi 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2/ In light of the Court s remand instructions, it is unnecessary to address 28 Plaintiff s remaining contentions. (See Joint Stip. at 11-14, 17.) 6
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