Martin Bernard Pearson v. Nancy A. Berryhill, No. 5:2017cv00563 - Document 22 (C.D. Cal. 2017)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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Martin Bernard Pearson v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 MARTIN BERNARD PEARSON, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, Acting ) Commissioner of Social Security, ) ) Defendant. ) ____________________________________) NO. ED CV 17-563-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied, and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a Complaint on March 23, 2017, seeking review of 26 the Commissioner’s denial of disability benefits. The parties filed a 27 consent to proceed before a United States Magistrate Judge on 28 April 20, 2017. Dockets.Justia.com 1 Plaintiff filed a motion for summary judgment on August 25, 2017. 2 Defendant filed a motion for summary judgment on September 26, 2017. 3 The Court has taken both motions under submission without oral 4 argument. See L.R. 7-15; “Order,” filed March 28, 2017. 5 6 BACKGROUND 7 8 Plaintiff asserts disability since November 28, 2013, based on 9 alleged physical and mental impairments including “bipolar depressive 10 disorder” for which Plaintiff takes Lithium and Seroquel (Quetiapine) 11 (Administrative Record (“A.R.”) 29, 34-35, 39, 45, 58-59, 62, 129, 12 160, 163, 166, 194, 196, 202, 204, 242-43, 251). 13 14 On initial evaluation on March 12, 2014, and on reconsideration 15 on June 10, 2014, non-examining state agency review physicians looked 16 at some of the medical records and opined that Plaintiff has a severe 17 affective disorder and, due to his depressive symptoms, has moderate 18 limitations in his ability to: (1) understand, remember and carry out 19 detailed instructions; (2) maintain attention and concentration for 20 extended periods; (3) ask simple questions or request assistance; and 21 (4) accept instructions and respond appropriately to criticism from 22 supervisors (A.R. 45-54, 60-65, 67-69). These physicians opined: 23 24 [Plaintiff] retains the mental capacity for persisting, 25 concentrating, and paying attention in the completion of 26 simple, routine tasks on a sustained basis. 27 relate to coworkers and supervisors on a brief and 28 superficial level. He is able to He is able to adapt to routine changes 2 1 in a work setting. 2 3 (A.R. 54, 69). Reportedly, there were no opinions from any medical 4 sources for the state agency physicians to review (A.R. 54, 64-65). 5 6 The Administrative Law Judge (“ALJ”) gave “little weight” to the 7 opinions of the state agency physicians and found that Plaintiff has 8 no severe mental impairment (A.R. 16, 20).1 9 supporting mental health medical opinions, the ALJ found that In the absence of any 10 Plaintiff’s retains a residual functional capacity for a limited range 11 of light work with the following non-exertional abilities/limits: 12 13 . . . capable of moderately complex tasks up to 4-6 steps; 14 can attend work without significant limitation; no need for 15 special supervision; can work in proximity to others without 16 distraction; able to make moderately complex work-related 17 decisions; there would be no interruption from 18 psychologically based symptoms; ability to interact with 19 supervisors, coworkers, and the general public limited to 20 21 22 23 24 25 26 27 28 1 The ALJ reasoned that the state agency physicians’ opinions were “internally inconsistent and overly restrictive,” because: (1) Plaintiff has a college degree and assertedly worked in complex jobs until he received his “VA” (Department of Veteran’s Affairs) disability; (2) the VA records allegedly show “minimal mental health treatment” and note that Plaintiff had a Global Assessment of Functioning (“GAF”) score of 64 “which is near normal functioning”; and (3) Plaintiff assertedly declined psychological therapy one time (A.R. 20). The ALJ elsewhere stated that Plaintiff assertedly declined therapy until 2014, and his compliance with psychotropic medications allegedly was “questionable” because his Lithium assertedly “was below therapeutic values” (A.R. 21). 3 1 frequent, not constant. 2 3 (A.R. 18, 20 (adopting physical limitations found by orthopedic 4 consultative examiner at A.R. 380-84)). 5 with this residual functional capacity could perform Plaintiff’s past 6 relevant work as a sales representative (A.R. 22 (adopting vocational 7 expert testimony at 41-42)). The ALJ found that a person 8 9 10 The ALJ denied benefits (A.R. 22-23). The Appeals Council denied review (A.R. 2-6). 11 12 STANDARD OF REVIEW 13 14 Under 42 U.S.C. section 405(g), this Court reviews the 15 Administration’s decision to determine if: (1) the Administration’s 16 findings are supported by substantial evidence; and (2) the 17 Administration used correct legal standards. 18 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 19 499 F.3d 1071, 1074 (9th Cir. 2007). 20 relevant evidence as a reasonable mind might accept as adequate to 21 support a conclusion.” 22 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 23 454 F.3d 1063, 1067 (9th Cir. 2006). See Carmickle v. Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 24 25 If the evidence can support either outcome, the court may 26 not substitute its judgment for that of the ALJ. 27 Commissioner’s decision cannot be affirmed simply by 28 isolating a specific quantum of supporting evidence. 4 But the 1 Rather, a court must consider the record as a whole, 2 weighing both evidence that supports and evidence that 3 detracts from the [administrative] conclusion. 4 5 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 6 quotations omitted). 7 8 DISCUSSION 9 10 Plaintiff asserts, inter alia, that the ALJ erred in connection 11 with determining Plaintiff’s mental residual functional capacity. 12 For the reasons discussed herein, the Court agrees. 13 14 A. Summary of the Relevant Medical Record 15 16 The record of Plaintiff’s medical treatment consists of 17 documentation from the Department of Veteran’s Affairs (“VA”) (A.R. 18 235-379). 19 that Plaintiff made psychiatric visits for medication management and 20 “supportive” treatment from April 2012 through at least May 2014, at 21 which time the VA found Plaintiff 100 percent mentally disabled (id.). As detailed below, available VA treatment notes indicate 22 23 On April 17, 2012, Plaintiff presented to staff psychiatrist, Dr. 24 Karole Avila (A.R. 291). Plaintiff reportedly was compliant with 25 taking Lithium and Quetiapine as prescribed, and Plaintiff denied any 26 anger, racing thoughts, hallucinations, or persistent mania or 27 depression (A.R. 291). 28 remission, refilled Plaintiff’s medications, and ordered Lithium level Dr. Avila diagnosed bipolar disorder, in 5 1 testing (A.R. 291). 2 3 On October 22, 2012, Plaintiff returned, reporting he was 4 “stable” and compliant with taking Lithium and Quetiapine as 5 prescribed (A.R. 282-83). 6 for a euthymic mood (A.R. 283). 7 assigned a Global Assessment of Functioning (“GAF”) score of 64, and 8 continued Plaintiff’s medications (A.R. 283). Mental status examination was normal except Dr. Avila diagnosed bipolar disorder, 9 10 On March 18, 2013, Plaintiff returned, reporting frustration, 11 irritability, short temper, sadness, worry, and anger (A.R. 275-76). 12 Plaintiff again reportedly was compliant with taking his medications 13 (A.R. 276). 14 ordered Lithium level testing (A.R. 276). Dr. Avila increased Plaintiff’s Lithium dosage and 15 16 The next mental health treatment note is dated November 12, 2013, 17 when Plaintiff presented to a nurse practitioner (A.R. 264-68). 18 Plaintiff reported his mood was “fairly stable,” but complained of 19 persistent cognitive difficulties, irritability, and anger (A.R. 264- 20 68). 21 continued as approved by Dr. Lynnetta Skoretz (A.R. 265, 267-68). 22 Plaintiff was referred for psychotherapy and Lithium level testing 23 (A.R. 266-67). Plaintiff said he was taking Lithium and Quetiapine, which were 24 25 A follow-up mental health treatment note dated January 7, 2014, 26 contains the same patient complaints as the November 12, 2013 note 27 (A.R. 250-53). Plaintiff reportedly was taking Lithium and Quetiapine 28 (A.R. 251-52). On testing, his Lithium level was “within the 6 1 therapeutic range” (A.R. 252). His provider discussed the need for 2 psychotherapy and Plaintiff reportedly was “more open to that option” 3 (A.R. 252). 4 and it was noted to consider adding either Bupropion or Abilify at the 5 next visit (A.R. 253). Again, Plaintiff’s Lithium and Quetiapine were continued, 6 7 The next mental health treatment note is for an “initial” mental 8 health treatment plan dated March 6, 2014, from a team of 9 psychologists and a nurse practitioner (A.R. 361-63). Plaintiff 10 reported hearing a voice commenting on his life when in a manic state, 11 and said his mood had been unstable in that he was depressed and 12 irritable (A.R. 362-63). 13 disorder and indicated Plaintiff would have medication management as 14 an intervention (A.R. 362-63). The treatment team diagnosed bipolar 15 16 On March 19, 2014, Plaintiff returned to a nurse practitioner for 17 a follow-up evaluation (A.R. 347-51). Plaintiff reported his mood was 18 “fairly stable” and his sleep quality was good, but he said he was not 19 sleeping enough and was having persistent cognitive difficulties along 20 with irritability and anger (A.R. 349). 21 within the therapeutic range (A.R. 349). 22 attending stress management classes (A.R. 349).2 23 increased and his Quetiapine was continued (A.R. 350). 24 /// His last Lithium level was He had just started His Lithium was 25 26 27 28 2 Treatment notes indicate that Plaintiff attended group or individual psychotherapy or other mental health classes on March 14, 2014, March 21, 2014, March 28, 2014, April 4, 2014, April 11, 2014, April 25, 2014, and May 16, 2014 (A.R. 307-08, 310-11, 324-26, 344-47, 353-54). 7 1 On May 21, 2014, Plaintiff returned for a follow-up evaluation 2 (A.R. 321-24). Plaintiff reported that his mood was more stable, 3 sleep and short-term memory were better, and his anxiety was down 4 since the last medication change (A.R. 322). 5 attending stress management classes and wanted to continue his 6 medications (A.R. 323). 7 approved by Dr. Skoretz (A.R. 323-24). He said he was still His Lithium and Quetiapine were continued as 8 9 The VA issued a “Rating Decision” dated May 21, 2014, finding 10 Plaintiff was entitled to “individual unemployability” with a 100 11 percent disability rating as of November 22, 2013, based on, inter 12 alia: (1) a “VA psychiatric examination, dated November 5, 2013,” 13 which reportedly indicated Plaintiff’s work hours had been reduced to 14 six hours per week, and which reportedly showed Plaintiff has 15 “difficulty in establishing and maintaining effective work and social 16 relationships as well as difficulty in adapting to stressful 17 circumstances, including work or a worklike setting”; (2) a “VA 18 psychiatric examination dated January 3, 2014,” which reportedly 19 showed Plaintiff has symptoms of “near-continuous panic or depression 20 affecting the ability to function independently, appropriately and 21 effectively”; and (3) “[t]he bipolar disorder symptoms cause 22 clinically significant distress or impairment in social, occupational, 23 or other important areas of functioning” (A.R. 235-36). 24 “psychiatric examinations” referenced above and in the VA Rating 25 Decision appear to be absent from the Administrative Record. 26 /// 27 /// 28 /// 8 The two 1 See A.R. 242-379.3 2 3 B. 4 Substantial Evidence Does Not Support the ALJ’s Mental Residual Functional Capacity Assessment. 5 6 The ALJ’s assessment of Plaintiff’s mental limitations is not 7 supported by substantial evidence in the present record. As 8 summarized above, the state agency physicians found greater 9 limitations than the ALJ found to exist, and the VA concluded that 10 psychiatric examinations (which appear to be absent from the record) 11 indicated Plaintiff has significant work-related limitations. 12 ALJ’s assessment of Plaintiff’s mental limitations is unsupported by 13 any expert medical opinion. The 14 15 The ALJ rejected the VA Rating Decision: (1) as assertedly based 16 on Plaintiff’s subjective complaints; (2) as purportedly not based on 17 a doctor’s residual functional capacity assessment; and (3) because of 18 Plaintiff’s “minimal treatment” for mental health. 19 The Court observes the following regarding the ALJ’s reasoning. See A.R. 19. 20 21 First, an ALJ sometimes may reject a treating physician’s opinion 22 if the opinion is based “to a large extent” on a claimant’s properly 23 discounted self-reports. 24 Admin., 169 F.3d 595, 602 (9th Cir. 1999). See Morgan v. Commissioner of Social Sec. However, “the rule 25 26 3 27 28 In purporting to discuss these examinations, the ALJ cited “Exhibit 1F/10-13, 25-27,” but the cited portions of the record do not include any November 5, 2013 examination or any January 3, 2014 examination (A.R. 19, 250-53, 265-67). 9 1 allowing an ALJ to reject [medical] opinions based on [the claimant’s] 2 self-reports does not apply in the same manner to opinions regarding 3 mental illness.” 4 2017). 5 which the Rating Decision was based appear not to be included in the 6 record. 7 prescribed Lithium and Seroquel, appears to have been greater than 8 “minimal” treatment. 9 Lithium and Seroquel connotes mental health treatment which is not See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. Second, as previously observed, two psychiatric evaluations on Third, Plaintiff’s mental health treatment, which included Courts have recognized that the prescription of 10 “conservative” within the meaning of social security jurisprudence. 11 Compare Barrino v. Berryhill, 2017 WL 977670, at *5, 7, 9 (E.D. Cal. 12 Mar. 14, 2017) (where plaintiff was diagnosed with bipolar disorder 13 and prescribed Lithium, attended regular counseling sessions, and had 14 Transcranial Magnetic Stimulation, his treatment was “far from 15 conservative”); Garrett v. Berryhill, 2017 WL 950467, at *8 & n.6 16 (E.D. Cal. Mar. 10, 2017) (treatment with psychotropic drugs including 17 Seroquel was not routine or conservative); Sandberg v. Commissioner of 18 the Social Sec. Admin., 2015 WL 2449745, at *6 (D. Or. May 22, 2015) 19 (“Prescription medicine such as Lithium is certainly not conservative 20 in the same manner as over-the-counter pain relievers.”) 21 (distinguishing Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007), 22 cert. denied, 552 U.S. 1141 (2008)); Johnson v. Colvin, 2014 WL 23 2586886, at *5 (C.D. Cal. June 7, 2014), adopted, 2014 WL 2589777 24 (C.D. Cal. June 7, 2014) (prescription of Seroquel is not 25 “conservative” mental health treatment). 26 reasoning prevent the Court from upholding the ALJ’s rejection of the 27 VA Rating Decision on the present record. 28 298 F.3d 1072, 1076 (9th Cir. 2002) (ALJ may give less than “great 10 These flaws in the ALJ’s See McCartey v. Massanari, 1 weight” to a VA disability rating only if the ALJ states “persuasive, 2 specific, valid reasons for doing so that are supported by the 3 record”). 4 5 There are no medical source opinions supporting the conclusion 6 that Plaintiff possesses the mental functional capacity the ALJ found 7 to exist. 8 medical lay opinion to define Plaintiff’s functional capacity. 9 cannot properly rely on the ALJ’s own lay knowledge to make medical Instead, the ALJ appears to have relied on his own nonAn ALJ 10 interpretations of examination results or to determine the severity of 11 medically determinable impairments. 12 1094, 1102-03 (9th Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 81 (2d 13 Cir. 1998); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996); Day v. 14 Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). 15 medical assistance, the ALJ could not competently translate the 16 medical evidence in this case into a mental residual functional 17 capacity assessment. 18 residual functional capacity assessment cannot stand in the absence of 19 evidentiary support); Rohan v. Chater, 98 F.3d at 970 (“ALJs must not 20 succumb to the temptation to play doctor and make their own 21 independent medical findings”); Day v. Weinberger, 522 F.2d at 1156 22 (an ALJ is forbidden from making his or her own medical assessment 23 beyond that demonstrated by the record). See Tackett v. Apfel, 180 F.3d Absent expert See Tackett v. Apfel, 180 F.3d at 1102-03 (ALJ’s 24 25 Rather than adopting his own lay assessment of Plaintiff’s 26 limitations, the ALJ should have ordered an examination and evaluation 27 of Plaintiff by a consultative mental health specialist. 28 also Reed v. Massanari, 270 F.3d 838, 843 (9th Cir. 2001) (where 11 See id.; see 1 available medical evidence is insufficient to determine the severity 2 of the claimant’s impairment, the ALJ should order a consultative 3 examination by a specialist); accord, Kish v. Colvin, 552 Fed. App’x 4 650 (2014); see generally Mayes v. Massanari, 276 F.3d 453, 459-60 5 (9th Cir. 2001) (ALJ’s duty to develop the record further is triggered 6 “when there is ambiguous evidence or when the record is inadequate to 7 allow for the proper evaluation of the evidence”) (citation omitted); 8 Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (“[T]he ALJ has a 9 special duty to fully and fairly develop the record to assure the 10 claimant’s interests are considered. 11 This duty exists even when the claimant is represented by counsel.”). 12 13 The Court is unable to deem the errors in the present case to 14 have been harmless. See Treichler v. Commissioner, 775 F.3d 1090, 15 1105 (9th Cir. 2014) (“Where, as in this case, an ALJ makes a legal 16 error, but the record is uncertain and ambiguous, the proper approach 17 is to remand the case to the agency”); see also Molina v. Astrue, 674 18 F.3d 1104, 1115 (9th Cir. 2012) (an error “is harmless where it is 19 inconsequential to the ultimate non-disability determination”) 20 (citations and quotations omitted); McLeod v. Astrue, 640 F.3d 881, 21 887 (9th Cir. 2011) (error not harmless where “the reviewing court can 22 determine from the ‘circumstances of the case’ that further 23 administrative review is needed to determine whether there was 24 prejudice from the error”). 25 disability determinations suggest that a person with the limitations 26 the state agency physicians found to exist could perform other work 27 (referencing the grids), no vocational expert testimony addresses this 28 suggestion. While the initial and reconsideration See A.R. 41-43 (vocation expert testimony); see also 12 1 Moore v. Apfel, 216 F.3d 864, 870 (9th Cir. 2000) (“When a claimant 2 suffers from both exertional and nonexertional limitations, the grids 3 are only a framework and a [vocational expert] must be consulted.”). 4 5 Remand is appropriate because the circumstances of this case 6 suggest that further administrative review could remedy the errors 7 discussed herein. 8 Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative 9 determination, the proper course is remand for additional agency McLeod v. Astrue, 640 F.3d at 888; see also INS v. 10 investigation or explanation, except in rare circumstances); Dominguez 11 v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district 12 court concludes that further administrative proceedings would serve no 13 useful purpose, it may not remand with a direction to provide 14 benefits”); Treichler v. Commissioner, 775 F.3d at 1101 n.5 (remand 15 for further administrative proceedings is the proper remedy “in all 16 but the rarest cases”); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th 17 Cir.), cert. denied, 531 U.S. 1038 (2000) (remand for further 18 proceedings rather than for the immediate payment of benefits is 19 appropriate where there are “sufficient unanswered questions in the 20 record”). 21 present record. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// There remain significant unanswered questions in the 13 1 CONCLUSION 2 3 For all of the foregoing reasons,4 Plaintiff’s and Defendant’s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: October 25, 2017. 10 11 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. “[E]valuation of the record as a whole creates serious doubt that [Plaintiff] is in fact disabled.” Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014). 14