Diane Gibbs v. Carolyn W Colvin, No. 5:2013cv02050 - Document 18 (C.D. Cal. 2014)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request that the final decision of the Commissioner be vacated is granted; (2) the decision of the Commissioner, to the extent it fo und plaintiff ineligible for disability insurance benefits, is affirmed; (3) the decision of the Commissioner, to the extent it found plaintiff ineligible for Supplemental Income Security, is reversed in part; and (4) this action is remanded to defendant for the award of Supplemental Security Income benefits based on the protective filing date of plaintiffs application, September 21, 2010. (es)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 DIANE GIBBS, 13 Plaintiff, 14 15 16 v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 13-2050-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on November 15, 2013, seeking review of the Commissioner s 22 denial of her applications for Disability Insurance Benefits and Supplemental Security Income 23 payments. The parties filed Consents to proceed before the undersigned Magistrate Judge on 24 November 26, 2013, and December 9, 2013. Pursuant to the Court s Order, the parties filed a 25 Joint Stipulation ( JS ) on August 7, 2014, that addresses their positions concerning the disputed 26 issues in the case. The Court has taken the Joint Stipulation under submission without oral 27 argument. 28 1 II. 2 BACKGROUND 3 Plaintiff was born on December 19, 1960. [Administrative Record ( AR ) at 20, 131, 137.] 4 She has at least a high school education and no past relevant work experience. [AR at 21, 41, 5 45-46.] 6 On September 21, 2010, plaintiff protectively filed an application for Supplemental Security 7 Income payments, and on November 4, 2010, she filed an application for Disability Insurance 8 Benefits. [AR at 9, 131-36, 137-38.] In both applications, plaintiff alleged disability beginning on 9 December 31, 1986. [Id.] After her applications were denied initially and upon reconsideration, 10 plaintiff filed a request for a hearing before an Administrative Law Judge ( ALJ ). [AR at 9, 66-83, 11 85-86.] A hearing was held on December 20, 2011, at which time plaintiff appeared with counsel 12 and testified on her own behalf. [AR at 9, 27-48.] A vocational expert ( VE ) also testified. [AR 13 at 9, 44-47.] On December 29, 2011, the ALJ issued a decision concluding that plaintiff was not 14 under a disability from December 31, 1986, through the date of the decision ( 2011 Decision ). 15 [AR at 9-22.] Plaintiff requested review of the ALJ s decision by the Appeals Council. [AR at 5.] 16 When the Appeals Council denied plaintiff s request for review on February 22, 2012, the ALJ s 17 decision became the final decision of the Commissioner. [AR at 1-3]; see Sam v. Astrue, 550 F.3d 18 808, 810 (9th Cir. 2008) (per curiam). 19 On April 19, 2012, plaintiff filed a complaint in this Court in Case Number ED CV 12-588- 20 PLA. On January 9, 2013, this Court reversed the 2011 Decision of the Commissioner and 21 remanded the case for further administrative proceedings ( 2013 Order ). [AR at 672-84.] On 22 March 29, 2013, in accordance with the Court s Order, the Appeals Council vacated the 23 Commissioner s final decision and forwarded the claim file for further proceedings. [AR at 692-94.] 24 25 On June 26, 2013, a hearing was held before a different ALJ, at which plaintiff, a medical 26 expert, and a vocational expert testified. [AR at 586-99, 605-36.] On August 29, 2013, the ALJ 27 issued an unfavorable decision ( 2013 Decision ). [AR at 586-99.] This action followed. 28 2 1 III. 2 STANDARD OF REVIEW 3 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner s 4 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 5 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 6 F.3d 1228, 1231 (9th Cir. 2010). 7 Substantial evidence means more than a mere scintilla, but less than a preponderance; 8 it is such relevant evidence as a reasonable mind might accept as adequate to support a 9 conclusion. Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008) (internal 10 quotation marks and citation omitted); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (same). 11 When determining whether substantial evidence exists to support the Commissioner s decision, 12 the Court examines the administrative record as a whole, considering adverse as well as 13 supporting evidence. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); see Ryan v. 14 Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ( [A] reviewing court must consider the 15 entire record as a whole and may not affirm simply by isolating a specific quantum of supporting 16 evidence. ) (internal quotation marks and citation omitted). Where evidence is susceptible to 17 more than one rational interpretation, the ALJ s decision should be upheld. Ryan, 528 F.3d at 18 1198 (internal quotation marks and citation omitted); see Robbins v. Soc. Sec. Admin., 466 F.3d 19 880, 882 (9th Cir. 2006) ( If the evidence can support either affirming or reversing the ALJ s 20 conclusion, [the reviewing court] may not substitute [its] judgment for that of the ALJ. ). 21 22 IV. 23 THE EVALUATION OF DISABILITY 24 Persons are disabled for purposes of receiving Social Security benefits if they are unable 25 to engage in any substantial gainful activity owing to a physical or mental impairment that is 26 expected to result in death or which has lasted or is expected to last for a continuous period of at 27 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 28 1992). 3 1 A. THE FIVE-STEP EVALUATION PROCESS 2 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 3 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 4 828 n.5 (9th Cir. 1995), as amended April 9, 1996. In the first step, the Commissioner must 5 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 6 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 7 substantial gainful activity, the second step requires the Commissioner to determine whether the 8 claimant has a severe impairment or combination of impairments significantly limiting her ability 9 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 10 If the claimant has a severe impairment or combination of impairments, the third step requires 11 the Commissioner to determine whether the impairment or combination of impairments meets or 12 equals an impairment in the Listing of Impairments ( Listing ) set forth at 20 C.F.R., pt. 404, subpt. 13 P, app. 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant s 14 impairment or combination of impairments does not meet or equal an impairment in the Listing, 15 the fourth step requires the Commissioner to determine whether the claimant has sufficient 16 residual functional capacity to perform her past work; if so, the claimant is not disabled and the 17 claim is denied. Id. The claimant has the burden of proving that she is unable to perform past 18 relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie case 19 of disability is established. The Commissioner then bears the burden of establishing that the 20 claimant is not disabled, because she can perform other substantial gainful work available in the 21 national economy. The determination of this issue comprises the fifth and final step in the 22 sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 23 F.2d at 1257. 24 25 26 27 28 4 1 B. THE ALJ S APPLICATION OF THE FIVE-STEP PROCESS 2 In this case, at step one, the ALJ found that plaintiff had not engaged in substantial gainful 3 activity since her alleged onset date, December 31, 1986.1 [AR at 588.] At step two, the ALJ 4 concluded that plaintiff has the severe impairments of cardiac dysrhythmias, asthma, affective 5 mood disorder, and history of methamphetamine and marijuana abuse. [Id.] At step three, the 6 ALJ determined that plaintiff does not have an impairment or a combination of impairments that 7 meets or medically equals any of the impairments in the Listings.2 [AR at 589.] The ALJ further 8 found that plaintiff retained the residual functional capacity ( RFC )3 to perform light work with the 9 following limitations: 10 13 cannot work on unprotected heights nor can she work around dangerous machinery. She will require a clean air environment with no temperature extremes. She can occasionally climb stairs and ramps and can occasionally stoop and bend. She is limited to simple, repetitive tasks with no intense sustained interaction with the public, coworkers, or supervisors, however, incidental or social contact is not precluded. 14 [AR at 591.] At step four, the ALJ concluded that plaintiff has no past relevant work. [AR at 597.] 15 At step five, based on plaintiff s RFC, vocational factors and the VE s testimony, the ALJ found that 16 there are jobs existing in significant numbers in the national economy that plaintiff could perform, 17 including work as an inspector, assembler, and packager. [AR at 598.] Accordingly, the ALJ 18 determined that plaintiff was not disabled at any time from December 31, 1986, through the date 19 of the decision. [AR at 587, 599.] 11 12 20 21 22 23 24 1 The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through March 31, 1991. [AR at 588.] 2 25 26 27 28 See 20 C.F.R. pt. 404, subpt. P, app. 1. 3 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007). 5 1 V. 2 THE ALJ S DECISION 3 Plaintiff contends that the ALJ: (1) failed to properly follow the remand instructions, and (2) 4 failed to properly consider the testimony of the medical expert, David M. Glassmire, PhD. [JS at 5 3-11, 12-16.] As explained below, the Court agrees with plaintiff, and remands for payment of 6 benefits. 7 8 A. THE ALJ FAILED TO PROPERLY CONSIDER DR. PAYNE S OPINIONS ON REMAND 9 Plaintiff contends that the ALJ failed to properly follow the remand instructions of this Court. 10 [JS at 3-11.] Specifically, she contends that on remand, the ALJ failed to follow this Court s 11 instruction to properly consider the opinions of plaintiff s treating psychiatrist, Dr. Dennis Payne, 12 who completed a Medical Opinion Re: Ability to do Work-Related Activities (Mental) form on 13 October 27, 2011. [JS at 3.] 14 In Dr. Payne s October 27, 2011, report, he opined that with regard to unskilled work, 15 plaintiff cannot satisfactorily perform [the following activities] independently, appropriately, 16 effectively and on a sustained basis in a regular work setting : remember work-like procedures; 17 understand and remember very short and simple instructions; carry out very short and simple 18 instructions; maintain regular attendance and be punctual within customary, usually strict 19 tolerances; and perform at a consistent pace without an unreasonable number and length of rest 20 periods. [AR at 542-43.] Dr. Payne also indicated that plaintiff has a substantial loss of ability to: 21 sustain an ordinary routine without special supervision; make simple work-related decisions; and 22 complete a normal workday and workweek without interruptions from psychologically based 23 symptoms. [Id.] He opined that plaintiff s impairments or treatment would cause her to be absent 24 from work more than four days per month. [AR at 543.] 25 26 1. The 2011 Decision 27 In its 2013 Order, the Court found that the reasons given by the ALJ in the 2011 Decision 28 for rejecting Dr. Payne s opinion were not specific and legitimate, and remanded the matter for 6 1 further consideration of Dr. Payne s opinions. [AR at 684.] The reasons given by the ALJ in the 2 2011 Decision for rejecting Dr. Payne s opinions were: (1) Dr. Payne relied quite heavily on 3 plaintiff s subjective symptoms and seemed to accept as true most, if not all of what plaintiff 4 reported, which the ALJ found less than fully credible [AR at 680 (citation omitted)]; (2) the course 5 of treatment pursued by Dr. Payne has not been consistent with what would be expected if plaintiff 6 were truly disabled as the doctor had reported [AR at 681 (citation omitted)]; and (3) because Dr. 7 Payne s opinion departs substantially from the evidence of record, there was a possibility that 8 Dr. Payne expressed his opinions in an effort to assist plaintiff out of sympathy, although it is 9 difficult to confirm the presence of such motives. [AR at 682 (citation omitted)]. 10 11 2. 12 In the 2013 Decision, the ALJ stated the following with respect to Dr. Payne s October 27, 13 The 2013 Decision 2011, report and opinions: 14 I have considered the October 27, 2011 mental status questionnaire completed by Dr. Payne. I have also given little weight to Dr. Payne s opinion for many reasons. First, Dr. Payne s notes do not support his statement. As noted above, Dr. Payne gave only one mental status examination the entire time he treated the claimant. The mental status examination done on June 8, 2010, revealed findings within normal limits other than the claimant s own subjective complaints of depression. He assessed the claimant with bipolar disorder at the time. At that time, the claimant had not yet had any treatment with Dr. Payne. This was his first evaluation of the claimant. The records since then have detailed only subjective complaints. For instance, on August 10, 2010 the claimant reported her mood was worse since using Tegretol.[4] She reported she was still seeing things and hearing things and her medication was not helpful for insomnia. Dr. Payne changed the claimant s medications at the time. On August 23, 2010, he reported the claimant was on Lithium and Trialaton and her mood was more stable with no more auditory hallucinations and her medications were more effective. On September 21, 2010, the claimant reported she had muscular jerks at night and feels tremulous. She was also waking up at night. Her medications were changed again. On November 8, 2010, Dr. Payne reported the claimant still feels down and cries at times but had no side effects from medication. Dr. Payne made a medication adjustment. On December 20, 2010, the doctor reported the claimant had made medication changes and had more problems with her attitude but reported no side effects. Another medication adjustment was made. Dr. Payne s records continue this way with frequent medication adjustments depending on what 15 16 17 18 19 20 21 22 23 24 25 26 27 4 28 This misstates the record. Dr. Payne s note states that plaintiff reported that her mood has been worsening since she got off Tegretol. [AR at 464.] 7 1 2 3 4 5 6 7 8 was reported by the claimant. Notably, although Dr. Payne noted the claimant s moods, rarely was there any mention of any concentration problems. I do note that the doctor has treated the claimant on a fairly consistent basis from June 2010 to the date of the mental status questionnaire of October 27, 2011, and as such, the doctor should have obtained a longitudinal picture of the claimant s medical condition. However, I am still unable to afford much weight to the doctor s opinion as the opinion expressed is quite conclusory, providing very little explanation of the evidence relied on in forming that opinion. Dr. Payne did not document positive objective clinical findings to support the functional assessment. The doctor noted the claimant was unable to manage her depressive symptoms, had multiple medication changes and poor concentration, but this statement is not entirely supported by the doctor[ ]s own treatment notes. The course of treatment pursued by the doctor has not been consistent with what one would expect if the claimant were truly disabled, as the doctor has reported. The doctor s treatment has been primarily medication changes. There is no indication of therapies that are more frequent, individual or group therapies or hospitalizations. 9 10 [AR at 596 (citations omitted).] 11 Plaintiff contends that the reasons given in the 2013 Decision for dismissing Dr. Payne s 12 medical opinion closely parallel those previously set forth in the 2011 Decision, and are no more 13 specific and legitimate now than they were in that decision. [JS at 6, 7.] The Commissioner 14 argues (1) that Dr. Payne conducted only a single mental status examination, and the findings 15 were within normal limits apart from subjective complaints of depression; and (2) that Dr. Payne s 16 treatment notes detail only further subjective complaints and medication adjustments in response 17 to those complaints and, therefore, it was clear that Dr. Payne, in his checkbox opinion of such 18 inability [to meet competitive standards], was crediting Plaintiff s symptom complaints -- but such 19 complaints were not entirely credible, as the ALJ properly found, and which plaintiff does not 20 challenge [JS at 11.] 21 After comparing the 2011 and 2013 Decisions, the Court agrees with plaintiff that the ALJ 22 did little more than repackage the original findings, and still fails to provide specific and legitimate 23 reasons for rejecting Dr. Payne s opinions. 24 25 a. Reliance on Plaintiff s Subjective Complaints with No Objective Support in Notes 26 27 In the 2011 Decision, one of the reasons the ALJ gave for rejecting Dr. Payne s opinion was 28 that Dr. Payne relied quite heavily on plaintiff s subjective symptoms and seemed to accept as true 8 1 most, if not all, of what plaintiff reported. [AR at 680 (citation omitted).] The Court found this was 2 not a specific and legitimate reason to reject Dr. Payne s opinions as Dr. Payne had not only relied 3 on plaintiff s subjective complaints, but on his June 8, 2010, mental status examination of plaintiff, 4 his personal observations of plaintiff on a monthly or more basis over a period of 14 months, and 5 his regular monitoring of plaintiff s medication regimen. [Id.] Moreover, there was nothing in the 6 record to suggest that Dr. Payne did not believe plaintiff s description of her symptoms or that he 7 relied on those descriptions more heavily than his own clinical observations in reaching the 8 conclusion that [plaintiff is] incapable of maintaining a regular work schedule. [AR at 681.] 9 In his 2013 Decision, the ALJ again states that Dr. Payne s opinions are not supported by 10 his treatment notes and reflect only plaintiff s subjective complaints. [AR at 596 (citations 11 omitted).] Again, under the facts of this case, based on the substantial evidence of record and for 12 the same reasons previously stated by the Court, this is not a specific and legitimate reason for 13 rejecting Dr. Payne s opinions. 14 In the 2013 Decision the ALJ expanded on this reasoning slightly to state that there had 15 only been one initial mental status examination pursuant to which Dr. Payne diagnosed plaintiff 16 with bipolar disorder and, other than plaintiff s complaints of depression, that examination revealed 17 findings within normal limits. [Id.] The ALJ noted that even after that mental status examination, 18 the treatment record reflected only plaintiff s subjective complaints and Dr. Payne s medication 19 adjustments in reaction to those complaints. [Id.] The ALJ stated that Dr. Payne s findings were 20 conclusory, as he provided very little explanation of the evidence relied on in forming his 21 opinion, and did not document objective clinical findings to support his assessment. [Id.] 22 A review of the record does not support the ALJ s reasoning. Dr. Payne s mental status 23 examination shows that approximately one month prior to the assessment, plaintiff had been 24 admitted to Arrowhead Regional Medical Center because she had been experiencing increasing 25 suicidal ideation. [AR at 468.] Moreover, after she was released, she had gone to a crisis walk-in 26 clinic ( CWIC ) approximately ten days before she started treating with Dr. Payne. [Id.] Even after 27 treating with Dr. Payne for some time, plaintiff sought additional help as reflected in an October 28 4, 2011, treatment note that indicates her husband took her to Arrowhead Regional Medical 9 1 Center when she stopped taking her Zyprexa for three days; they suggested she go to CWIC, 2 which she did. [Id. at 570.] When Dr. Payne next saw plaintiff, he adjusted a number of her 3 medications. [Id.] Indeed, as the ALJ noted, Dr. Payne frequently adjusted plaintiff s medications 4 in response to her symptoms; presumably, Dr. Payne believed that plaintiff suffered some 5 impairment caused by her depression and bipolar disorder or he would not have prescribed and 6 adjusted her medications in response to her complaints. Indeed, Dr. Payne s treatment notes 7 regularly reflect that plaintiff s medications rarely controlled all her symptoms, frequently caused 8 unwanted side effects, and that her symptoms fluctuated. [See also Discussion infra Part V.B.] 9 Accordingly, the ALJ failed to provide specific and legitimate reasons for rejecting Dr. 10 Payne s opinions. 11 12 b. Plaintiff s Course of Treatment 13 In the 2011 Decision, the ALJ stated that the course of treatment pursued by Dr. Payne has 14 not been consistent with what would be expected if plaintiff were truly disabled as the doctor had 15 reported. [AR at 19]. In its 2013 Order, the Court noted that Dr. Payne saw plaintiff on numerous 16 visits from June 2010 to December 2010, and from April 2011 to November 2011 -- often more 17 than once a month. [AR at 681 (citations omitted).] He prescribed psychotropic medications, and 18 made changes to her medication regimen on numerous occasions in order to increase the efficacy 19 of her treatment. [Id. (citations omitted).] The Court found that the ALJ erred because he did not 20 state specifically how the care plaintiff received from Dr. Payne was conservative, and he pointed 21 to nothing in the record to show that any specific treatment in addition to the treatment plaintiff was 22 receiving is a standard method of treating her bipolar disorder. [Id. (citations omitted).] 23 In the 2013 Decision, the ALJ again states that Dr. Payne s course of treatment was not 24 consistent with what would be expected of disability. [AR at 596.] Again, the ALJ failed to state 25 how the treatment rendered by Dr. Payne was conservative. As noted above, this Court has 26 already found that this statement was not a legally sufficient reason for discounting Dr. Payne s 27 opinion. [AR at 681.] 28 10 1 Moreover, the ALJ s additional statements in the 2013 Decision to the effect that Dr. 2 Payne s treatment consisted primarily of medication changes, and that there is no indication of any 3 therapies that are more frequent, individual or group therapy or hospitalizations, do not serve to 4 render the ALJ s reasoning any more specific or legitimate. As previously discussed, Dr. Payne s 5 regular adjustments to plaintiff s medications reflected an attempt to improve plaintiff s response 6 to treatment and tend to support Dr. Payne s opinions. The ALJ still fails to show that more 7 frequent unspecified therapies, or individual or group therapy would be standard for treating 8 plaintiff s bipolar disorder. And, contrary to the ALJ s statement, there are indications in the record 9 that plaintiff had been hospitalized on at least one occasion [AR at 468, 470, 545-62], and had 10 sought crisis care on at least one other occasion. [AR at 570.] 11 Accordingly, these are not legally sufficient reasons for rejecting Dr. Payne s opinions. 12 13 3. 14 The ALJ again failed to provide legally sufficient reasons for rejecting Dr. Payne s opinions, 15 Conclusion and remand is warranted. 16 17 B. The ALJ Failed to Properly Consider the Medical Expert s Testimony 18 At the hearing, medical expert David Glassmire, PhD, a Board certified clinical psychologist 19 in forensic psychology, testified that in his opinion, as of May 19, 2010, plaintiff met the 20 requirements for Listing 12.04, affective disorders, with some psychotic symptoms associated with 21 her bipolar disorder. [AR at 612, 617-18.] When asked for the basis of his opinion, Dr. Glassmire 22 identified myriad records, reciting in detail the various psychotic and other symptoms reflected by 23 each of those records, the ineffectiveness of plaintiff s medications, medication side effects, 24 fluctuating mood symptoms, a number of notations indicating significant symptoms, the 25 appearance of sometimes psychotic symptoms, and GAF scores at various times of 25, 49 and 26 27 28 11 1 605 [see, e.g., AR at 476, 504, 558]. [AR at 612-16, 619.] The ALJ asked Dr. Glassmire how he 2 was able to distinguish plaintiff s mental status when most of the notes are self reported 3 symptoms, versus the analysis that the doctor gives when he gives a mental status test, 4 especially in light of the fact that Dr. Payne only performed one mental status examination. [AR 5 at 617-18.] Although he acknowledged that [t]here s no way to prove for sure the veracity of the 6 self-reported complaints, Dr. Glassmire indicated that he believed plaintiff s self-reported 7 symptoms were relatively consistent over the time period he indicated, and her doctor seem[ed] 8 to feel that the symptoms were legitimate. [AR at 618.] He also noted that the ongoing treatment 9 records were generally consistent with each other and with Dr. Payne s opinion. [Id.] 10 The ALJ dismissed Dr. Glassmire s opinion as follows: 11 At the hearing, Dr. Glassmire opined that the claimant met listing 12.04 based primarily on [Dr. Payne s October 27, 2011, opinion]. He reported the claimant had records, which documented self-reported complaints of persistent symptomatology including poor motivation, irritability, . . . auditory hallucinations, and fatigue. However, he also noted that interspersed with these records were records noting that the claimant was doing well with stable mood. Despite this statement, Dr. Glassmire then contradicted himself by testifying that the claimant s symptoms appeared consistent. He reported further that Dr. Payne s notes reflected the claimant s reported symptoms and that it was unusual for the claimant to have only one mental status examination. Given these inconsistencies as well as the fact that Dr. Glassmire relied on Dr. Payne s reports, which the doctor admitted reflected the claimant s own self-reported symptoms (as explained elsewhere in this decision, there exist good reasons for questioning the reliability of the claimant s subjective complaints), I have given less weight to Dr. Glassmire s opinion. . . . 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 A Global Assessment of Functioning ( GAF ) score is the clinician s judgment of the individual s overall level of functioning. It is rated with respect only to psychological, social, and occupational functioning, without regard to impairments in functioning due to physical or environmental limitations. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders ( DSM-IV ), at 32 (4th ed. 2000). A GAF score in the range of 21-30 indicates behavior is considerably influenced by delusions or hallucinations or serious impairment, in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day, no job, home, or friends). DSM-IV, at 34. A GAF score in the range of 41-50 indicates serious symptoms or any serious impairment in social, occupational, or school functioning (e.g., unable to keep a job). DSM-IV, at 34. A GAF score in the range of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). DSM-IV, at 34. The hearing transcript here reflects that Dr. Glassmire indicated Dr. Bagner had assessed a GAF score of 50 [AR at 613]; either Dr. Glassmire misspoke, or the court reporter misheard his testimony, as Dr. Bagner assessed a GAF score of 60, not 50. [AR at 504.] 12 1 2 3 4 5 6 7 8 9 .... As noted above, I have given less weight to Dr. Glassmire. Although Dr. Glassmire had the opportunity to review the entire medical record, I am unable to give him much weight. Dr. Glassmire noted that the claimant s treatment records were primarily self-reported symptomatology and that it was unusual for a treating doctor to have only one mental status examination. Nevertheless, Dr. Glassmire proceeded to opine that the claimant met listing 12.04 given these consistent selfreported symptomatology. However, Dr. Glassmire then also admitted that there are periods in which the claimant also reported stable mood and no complaints. The fact that the claimant has had only intermittent subjective complaints refutes the fact that the symptomatology is consistent and persistent or unrelenting. The records in fact indicate that with treatment and medication, the claimant s symptomatology has made improvements. Dr. Glassmire relied heavily on these subjective reports, despite noting that they were self-reports and accepted these symptoms as true. However, as discussed above, there are many reasons for questioning the reliability of the claimant s subjective complaints. Furthermore, the fact that there are nonpersistent symptomatology would be contrary to a finding for 12.04. 10 [AR at 590, 595.] 11 The Court finds that the ALJ s reasons for discounting Dr. Glassmire s opinions, which were 12 based at least in part on Dr. Payne s opinions and records, were not specific or legitimate. 13 The ALJ misstates Dr. Glassmire s opinion when the ALJ states that the record contradicts 14 Dr. Glassmire s opinion that plaintiff s symptoms were consistent because it shows periods 15 during which plaintiff s symptoms appeared to improve. [AR at 590.] In fact, Dr. Glassmire did 16 not state that plaintiff s symptoms were always consistent -- he generally addressed this point in 17 his testimony by stating that the records relatively consistently indicate significant mood 18 symptoms, including psychosis, trouble sleeping, tearfulness, appetite fluctuations, anger 19 problems, fatigue, lack of motivation and suicidal ideation [AR at 612-14], and also explaining that 20 plaintiff s symptoms wax and wane but that s generally attributed to [her] disorder. [AR at 613.] 21 Dr. Glassmire also noted that it was his opinion that the ongoing treatment records, including the 22 psychiatric consultative examination, somewhat underestimated plaintiff s functional limitations 23 because of her fluctuat[ing] mood symptoms and the appearance of sometimes psychotic 24 symptoms. [Id.] Dr. Glassmire stated that plaintiff s treatment with Klonopin and Seroquel, 25 although not the most common medications for bipolar disorder, may have been in part because 26 27 28 13 1 the side effects of various medications that had previously been tried may be why she s not on 2 the more traditional medication regimen, which might include Lithium or Depacote.6 [AR at 619.] 3 Nor, contrary to the ALJ s statement, did Dr. Glassmire ever actually state that it is 4 unusual for a treating psychiatrist to administer only a single mental status examination -- he only 5 stated that [g]enerally a few more mental status exams would show. [AR at 617-18 (emphasis 6 added).] In fact, Dr. Glassmire seemed to imply that most such mental status examinations are 7 associated with a claimant s self report. [See AR at 617-18.] 8 Based on the foregoing, the ALJ did not provide specific and legitimate reasons based on 9 substantial evidence of record for discounting Dr. Glassmire s testimony, including his opinion that 10 plaintiff met Listing 12.04 since May 19, 2010. 11 12 VI. 13 REMAND FOR FURTHER PROCEEDINGS 14 The decision whether to remand a case for additional evidence, or simply to award benefits 15 is within the discretion of the court. Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). 16 Where substantial evidence does not support the Commissioner s decision, the Court may reverse 17 and remand for payment of benefits. Id. [W]here the record has been developed fully and further 18 administrative proceedings would serve no useful purpose, the district court should remand for an 19 immediate award of benefits. 20 Specifically: Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.2004). the district court should credit evidence that was rejected during the administrative process and remand for an immediate award of benefits if (1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. 21 22 23 24 25 26 27 28 6 Indeed, a review of the record shows that plaintiff had been on Lithium in 2010 [AR 477-79] but that in October 2011 Dr. Payne determined it was not effective and apparently discontinued its use. [AR at 570.] 14 1 Id. Where these criteria are met, remanding for further administrative proceedings would serve 2 no useful purpose and would unnecessarily extend [plaintiff s] long wait for benefits. Id. at 595. 3 Under the circumstances, the Court is persuaded that remanding for further administrative 4 proceedings would serve no useful purpose and would unnecessarily extend [plaintiff s] long wait 5 for benefits. Benecke, 379 F.3d at 595. First, because, for the second time, the ALJ did not 6 provide specific and legitimate reasons for his rejection of plaintiff s treating psychiatrist s opinions 7 (see Discussion supra Part V.A.), the Court credits the opinions of Dr. Payne as a matter of law. 8 See Widmark v. Barnhart, 454 F.3d 1063, 1069 (9th Cir. 2006) ( Because the ALJ failed to provide 9 adequate reasons for rejecting [the examining physician] s opinion, we credit it as a matter of 10 law. ); Edlund v. Massanari, 253 F.3d 1152, 1160 (9th Cir. 2001) (crediting, as a matter of law, 11 improperly rejected treating physician opinions); see also Pitzer v. Sullivan, 908 F.2d 502, 506 (9th 12 Cir. 1990) (remanding for payment of benefits where the Commissioner did not provide adequate 13 reasons for disregarding examining physician s opinion). For the same reasons, the Court credits 14 the opinions of Dr. Glassmire as a matter of law, including his opinion that plaintiff met the 15 requirements of Listing 12.04 as of May 19, 2010. 16 Moreover, Dr. Payne opined that plaintiff s impairments would cause her to be absent from 17 work more than four days a month. [AR at 243.] Thus, even without direct VE testimony relating 18 to plaintiff's limitations, it is clear that crediting Dr. Payne s opinion renders plaintiff disabled as of 19 May 19, 2010.7 See Brewes v. Comm r of Soc. Sec. Admin., 682 F.3d 1157, 1164-65 (9th Cir. 20 2012) (reversing for an award of benefits where the record as a whole showed that the claimant 21 was likely to miss multiple days of work per month, and the VE testified that a person who would 22 miss two days of work a month was not employable); see also Watson v. Barnhart, 2003 WL 23 21838474, at *1 (N.D. Cal. Aug.1, 2003), aff d, 126 F. App x 788 (9th Cir. 2005) (testimony by VE 24 7 25 26 27 28 The VE in this case did testify that if plaintiff were off task 20% of the time due to psychological-based symptoms, there would be no work she could do. [AR at 627.] Although these are not the precise limitations opined by Dr. Payne, as the Ninth Circuit has stated, [r]equiring remand for further proceedings any time the vocational expert did not answer a hypothetical question addressing the precise limitations established by improperly discredited testimony would contribute to waste and delay and would provide no incentive to the ALJ to fulfill her obligation to develop the record. Benecke, 379 F.3d at 595. 15 1 that claimant could not work in any gainful employment if she had to miss more than three days 2 of work a month ); Wright v. Astrue, 2009 WL 2827576, at *8 (D. Or. Aug. 24, 2009) (testimony 3 by VE that plaintiff could not perform competitive employment if she had to miss more than two 4 days of work a month on a routine basis). 5 In short, because it is clear from the record that crediting the opinions of plaintiff s treating 6 psychiatrist and the medical expert would result in a finding that plaintiff is precluded from 7 engaging in substantial gainful activity since May 19, 2010, the Court sees no need to return the 8 case to the Commissioner to make yet another determination as to whether plaintiff s treating 9 psychiatrist s opinions and/or the opinions of the medical expert should be credited or rejected. 10 Allowing the Commissioner to decide the issue again would create an unfair heads we win; tails, 11 let's play again system of disability benefits adjudication. Benecke, 379 F.3d at 595. Plaintiff has 12 already waited nearly four years for a disability determination. [See AR at 9]; see also Benecke, 13 379 F.3d at 595 ( Remanding a disability claim for further proceedings can delay much needed 14 income for claimants who are unable to work and are entitled to benefits, often subjecting them 15 to tremendous financial difficulties while awaiting the outcome of their appeals and proceedings 16 on remand. ) (internal quotation marks and citation omitted). Accordingly, a remand for the 17 payment of benefits is warranted regardless of whether the ALJ might have (on remand) 18 articulated a valid justification for rejecting the opinions of plaintiff s treating psychiatrist and the 19 medical expert. 20 The Court notes, however, that plaintiff s date last insured was March 31, 1991. [AR at 21 586.] In order to qualify for Title II Disability Insurance Benefits, plaintiff must show disability prior 22 to the date she was last insured. [Id.]; see also Social Security Ruling 83-10 ( Under title II, a 23 period of disability cannot begin after a worker s disability insured status has expired. ) Because 24 disability has only been demonstrated from May 19, 2010, plaintiff is ineligible for disability 25 insurance benefits.8 26 27 28 8 The Medical Expert testified that there were really no records commenting substantially on the claimant s psychological or psychiatric function prior to May 19, 2010 [AR at 612], and (continued...) 16 1 Supplemental Security Income benefits are not payable for any months prior to the filing 2 of an application, and the earliest month for which the claimant can receive benefits is the month 3 following the month the claimant filed the application. 20 C.F.R. § 416.335. Thus, the relevant 4 time period concerning plaintiff s disability for purposes of payments of Supplemental Security 5 Income began on September 21, 2010, the protective filing date of her application. 6 7 VII. 8 CONCLUSION 9 IT IS HEREBY ORDERED that: (1) plaintiff's request that the final decision of the 10 Commissioner be vacated is granted; (2) the decision of the Commissioner, to the extent it found 11 plaintiff ineligible for disability insurance benefits, is affirmed; (3) the decision of the 12 Commissioner, to the extent it found plaintiff ineligible for Supplemental Income Security, is 13 reversed in part; and (4) this action is remanded to defendant for the award of Supplemental 14 Security Income benefits based on the protective filing date of plaintiff s application, September 15 21, 2010. 16 17 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 18 19 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 20 21 DATED: September 11, 2014 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 8 (...continued) plaintiff s counsel conceded that the records only go back about four years or so ago and did not see any basis for pursuing the Disability Insurance Benefits claim. [AR at 611.] The Court sees no evidence, and plaintiff does not argue that any evidence exists, or a disability prior to plaintiff s date last insured in 1991. 17
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