Dallas v. Colvin

Filing 32

ORDER granting Defendant's 26 Motion to Remand as provided in this Order. ORDERED the final decision of the Commissioner of the Social Security Administration is reversed and this case is remanded for an award of benefits. The Clerk shall enter judgment accordingly and terminate this case. Signed by Magistrate Judge John Z Boyle on 3/6/2015.(LFIG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Christopher P. Dallas, Plaintiff, 10 11 ORDER v. 12 No. CV-13-02044-PHX-JZB Carolyn W. Colvin, 13 Defendant. 14 15 Plaintiff Christopher P. Dallas seeks review of the Social Security Administration 16 Commissioner’s decision denying his application for disability benefits under Title II of 17 the Social Security Act. (Doc. 1; Doc. 21.) Defendant concedes error and requests that 18 the Court remand this case for further proceedings. (Doc. 26; Doc. 27.) For the reasons 19 below, the Court will reverse the decision of the Commissioner and remand this case to 20 the Social Security Administration for an award of benefits. I. 21 Background 22 On July 28, 2009, Plaintiff filed an application for disability benefits under Title II 23 of the Social Security Act. (AR1 14.) Plaintiff alleged that he became unable to work on 24 January 1, 2007,2 due to a variety of conditions, including headaches, bipolar disorder, 25 organic mental disorder, and anxiety related disorder. (Id. at 14, 16, 205.) On February 26 24, 2010, the Social Security Administration denied Plaintiff’s application. (Id. at 14.) 27 1 Citations to “AR” are to the administrative record. 2 Plaintiff subsequently amended the onset date to July 1, 2008. (Id. at 14.) 28 1 On August 26, 2010, the Social Security Administration denied Plaintiff’s request for 2 reconsideration. (Id.) Pursuant to Plaintiff’s request, a hearing was held on January 31, 3 2012, before Administrative Law Judge (“ALJ”) Earl C. Cates, Jr. (Id. at 14, 22.) In a 4 decision dated February 17, 2012, the ALJ ruled Plaintiff is not entitled to disability 5 benefits because he was “not disabled under sections 216(i) and 223(d) of the Social 6 Security Act through June 30, 2011, the last date insured.” (Id. at 22.) In August 2013, 7 the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision, and the 8 decision became the final decision of the Commissioner of the Social Security 9 Administration. (Id. at 1-10.) 10 Having exhausted the administrative review process, on October 8, 2013, Plaintiff 11 sought judicial review of the ALJ’s decision by filing a Complaint in this Court pursuant 12 to 42 U.S.C. § 405(g). (Doc. 1.) On June 19, 2014, Plaintiff filed an Opening Brief, 13 seeking remand of this case to the Social Security Administration for an award of 14 disability benefits. 15 Remand, agreeing that the ALJ committed legal error, but requesting that the Court 16 remand this matter for further proceedings. (Doc. 26; Doc. 27.) On September 26, 2014, 17 Plaintiff filed a Response to Defendant’s Motion, again arguing that remand for an award 18 of benefits is appropriate. (Doc. 30.) Defendant has not filed a Reply and the time to do 19 so has passed. 20 21 22 23 24 25 26 27 28 II. (Doc. 21.) On August 20, 2014, Defendant filed a Motion to Analysis a. TheALJ erred in rejecting the opinions of Dr. Larry J. Cowley and Dr. Steven Hirdes. Plaintiff argues that the ALJ failed to provide specific and legitimate reasons supported by substantial evidence for rejecting the medical opinions of Dr. Cowley, treating psychiatrist, and Dr. Hirdes, examining psychologist, regarding Plaintiff’s mental impairments and, in doing so, committed legal error. (Doc. 21 at 12-25); see also Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)) (“If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by providing specific -2- 1 and legitimate reasons that are supported by substantial evidence.”); Cotton v. Bowen, 2 799 F.2d 1403, 1408 (9th Cir. 1986) (An ALJ can meet the “specific and legitimate 3 reasons” standard “by setting out a detailed and thorough summary of the facts and 4 conflicting clinical evidence, stating his interpretation thereof, and making findings.”). 5 In its Motion to Remand and supporting Memorandum, Defendant concedes that 6 “the ALJ’s decision was ultimately deficient,” but Defendant does not specify whether it 7 agrees that the ALJ erred in each way identified by Plaintiff in his Opening Brief. (Doc. 8 26; Doc. 27.) However, based on Defendant’s request to remand this matter to, among 9 other things, accord “appropriate weight to the opinion evidence of record,” and 10 Defendant’s failure to contest Plaintiff’s assertions that the ALJ erred in weighing the 11 opinions of Dr. Cowley and Dr. Hirdes, the Court assumes that Defendant concedes the 12 ALJ erred in rejecting the opinions of both physicians. (Doc. 21; Doc. 26.) 13 Based on its review of the record, the Court accepts Defendant’s concession of 14 error regarding the ALJ’s rejection of Dr. Cowley’s and Dr. Hirdes’ medical opinions. 15 Having determined that the ALJ erred in weighing medical source evidence, the only 16 remaining issue for the Court is whether to remand this case for an award of benefits or 17 for further proceedings.3 b. Remand for an award of benefits is appropriate. 18 19 If the ALJ’s decision is not supported by substantial evidence or suffers from legal 20 error, the court has discretion to reverse and remand either for an award of benefits or for 21 further administrative proceedings. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 22 1996). 23 improperly rejected medical opinions and remand for an award of benefits if each of the 24 following are satisfied: “(1) the record has been fully developed and further 25 administrative proceedings would serve no useful purpose; (2) the ALJ has failed to Under the Ninth Circuit’s credit-as-true standard, courts may credit as true 26 3 27 28 Plaintiff also argues in his Opening Brief that the ALJ erred in rejecting treating physician Dr. Sharonelle Simmons’ opinions, Plaintiff’s testimony, and lay witness testimony by Plaintiff’s parents. (Doc. 21 at 23-26.) However, in light of Defendant’s concession of error with respect to Dr. Cowley’s and Dr. Hirdes’ opinions, the Court need not address the other errors alleged by Plaintiff. -3- 1 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or 2 medical opinion; and (3) if the improperly discredited evidence were credited as true, the 3 ALJ would be required to find the claimant disabled on remand.” Garrison, 759 F.3d at 4 1020 (citing Ryan, 528 F.3d at 1202, Lingenfelter v. Astrue, 504 F.3d 1028, 1041 (9th 5 Cir. 2007), Orn v. Astrue, 495 F.3d 625, 640 (9th Cir. 2007), Benecke v. Barnhart, 379 6 F.3d 587, 595 (9th Cir. 2004), and Smolen, 80 F.3d at 1292). If the “credit-as-true rule” 7 is satisfied, the Court may remand for further proceedings, instead of for an award of 8 benefits, only “when the record as a whole creates serious doubt as to whether the 9 claimant is, in fact, disabled within the meaning of the Social Security Act.” Garrison, 10 759 F.3d at 1021. 11 i. When appropriately credited as true, the opinions of Dr. Cowley and Dr. Hirdes require the ALJ to find that Plaintiff is disabled. 12 13 Defendant argues that “further proceedings would be useful for the purpose of 14 further development of the record and the resolution of outstanding issues.” (Doc. 27 at 15 4.) Defendant asserts that the ALJ’s development of the evidence was deficient and, on 16 remand, the Appeals Counsel will direct the ALJ to do the following: 17 18 19 20 21 22 23 24 obtain any additional evidence relevant to the period prior to Plaintiff’s date last insured (June 30, 2011); obtain evidence from an appropriate medical expert to assist in providing a longitudinal overview of Plaintiff’s medically determinable mental impairments throughout the period at issue; further evaluate Plaintiff’s mental impairments at steps 2 and 3 of the sequential evaluation process; further evaluate Plaintiff’s subjective complaints and further consider Plaintiff’s maximum residual functional capacity, according appropriate weight to the opinion evidence of record in accordance with the applicable regulations; and obtain supplemental vocational expert evidence, as warranted. (Doc. 27 at 2-3.) 25 However, Defendant fails to identify with specificity what additional evidence is 26 needed or what “outstanding issues” remain regarding Plaintiff’s limitations. The record 27 includes Plaintiff’s medical records from the relevant time period, as well as opinions 28 from treating, examining, and consulting sources. Further, a vocational expert testified at -4- 1 Plaintiff’s hearing regarding Plaintiff’s limitations as identified by Dr. Cowley and Dr. 2 Hirdes. Given the evidence in the record regarding Plaintiff’s mental impairments, there 3 are no outstanding issues present here that require a remand for further proceedings. See 4 Treichler v. Comm’r of SSA, 775 F.3d 1090, 1101 (9th Cir. 2014) (noting that a remand 5 for further administrative proceedings is generally useful where the record has not been 6 fully developed, there are outstanding conflicts and ambiguities to be resolved, or the 7 presentation of further evidence may “prove enlightening”). 8 Defendant’s request for remand to allow the ALJ to “reevaluate” Plaintiff’s 9 impairments at steps 2 and 3 and accord the appropriate weight to the medical evidence 10 seeks an opportunity for the ALJ to reweigh the evidence that was already before him. 11 Such a remand is not for a “useful purpose.” Garrison, 759 F.3d at 1021 (“[T]he 12 objectives of the credit-as-true rule foreclose the argument that a remand for the purpose 13 of allowing the ALJ to have a mulligan qualifies as a remand for a ‘useful purpose’ under 14 the first part of credit-as-true analysis.”); see also Benecke, 379 F.3d at 595 (“Allowing 15 the Commissioner to decide the issue again would create an unfair ‘heads we win; tails, 16 let’s play again’ system of disability benefits adjudication.”); Moisa v. Barnhart, 367 17 F.3d 882, 887 (9th Cir. 2004) (“The Commissioner, having lost this appeal, should not 18 have another opportunity to show that Moisa is not credible any more than Moisa, had he 19 lost, should have an opportunity for remand and further proceedings to establish his 20 credibility.”). 21 Defendant also asserts that a remand for further proceedings is appropriate 22 because “Congress empowered the Commissioner to ‘make findings of fact, and 23 decisions as to the rights of any individual applying for [disability benefits.]’” (Doc. 27 24 at 5.) However, as the Ninth Circuit Court recently reiterated, “[w]here there are no 25 outstanding issues that must be resolved before a proper disability determination can be 26 made, and where it is clear from the administrative record that the ALJ would be required 27 to award benefits if the claimant’s excess pain testimony were credited, we will not 28 remand solely to allow the ALJ to make specific findings regarding that testimony. -5- 1 Rather, we will . . . take that testimony to be established as true.” See Garrison, 759 F.3d 2 1019-20 (quoting Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396, 1401 (9th 3 Cir. 1988)). 4 Defendant does not dispute that the other two prongs of the credit-as-true test are 5 satisfied here. The Court agrees with both parties that the ALJ’s decision contains error 6 regarding the weight given to the medical opinions of Dr. Cowley and Dr. Hirdes. (Doc. 7 21; Doc. 26; Doc. 27.) When these opinions are credited as true, the following facts are 8 established. Plaintiff suffers from an impairment that seriously affects his ability to do 9 the following on a sustained basis in a routine work setting: (1) understand, carry out, 10 and remember instructions; (2) respond to customary work pressures; (3) perform 11 complex tasks; and (4) perform repetitive tasks. (AR at 647-48.) These limitations have 12 “lasted or can be expected to last for 12 months or longer.” (Id. at 648.) 13 Additionally, Plaintiff’s judgment and insight are in the “fair” to “poor” range. 14 (Id. at 386.) Plaintiff is in the “low” to average range of intellectual functioning, with 15 scores also indicating neuropsychological impairment. 16 processing speed is an area of “significant impairment and weakness.” (Id. at 387.) 17 Plaintiff has “severe” impairments “in all areas associated with memory functions.” (Id. 18 at 388.) Plaintiff will have “severe difficulty acquiring new information adequately, 19 regardless of the type of teaching format employed.” (Id.) Plaintiff is likely “unable to 20 manage the necessity of ongoing social interaction successfully at the present time.” (Id. 21 at 389.) 22 necessary changes within working environments” and “he will require high levels of 23 supervisory assistance and monitoring.” (Id. at 390.) These limitations have or will last 24 12 months. (Id. at 389.) 25 (Id. at 389.) Plaintiff’s Plaintiff has moderate to severe impartments in his ability “to adjust to Given these restrictions and the testimony of the vocational expert at Plaintiff’s 26 hearing (AR 93-96), Plaintiff does not have the ability to work. 27 improperly discredited evidence is credited as true, the ALJ would be required to find 28 Plaintiff disabled on remand. Garrison, 759 F.3d at 1020. -6- Thus, when the 1 ii. The record as a whole does not create “serious doubt” as to whether Plaintiff is disabled. 2 3 In its Motion to Remand, Defendant argues that even if the Court finds each prong 4 of the “credit-as-true rule [is] satisfied, a remand for further proceedings is nonetheless 5 warranted because an evaluation of the record as a whole creates doubt that Plaintiff is 6 disabled.” (Doc. 27 at 6.) Specifically, Defendant asserts that although “the ALJ’s 7 decision was ultimately deficient,” there is evidence in the record “that could support the 8 ALJ’s findings.” (Id.) 9 In support of this argument, Defendant states that “longitudinal mental health 10 treatment notes showed Plaintiff’s providers regularly and consistently rated his Global 11 Assessment of Functioning (GAF) at about 60.” (Id.) As discussed by the Ninth Circuit 12 Court in Garrison: 13 14 15 16 17 18 19 20 21 22 23 24 A GAF score is a rough estimate of an individual’s psychological, social, and occupational functioning used to reflect the individual’s need for treatment.” Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). According to the DSM-IV, a GAF score between 41 and 50 describes “serious symptoms” or “any serious impairment in social, occupational, or school functioning.” A GAF score between 51 to 60 describes “moderate symptoms” or [“]any moderate difficulty in social, occupational, or school functioning.” Although GAF scores, standing alone, do not control determinations of whether a person’s mental impairments rise to the level of a disability (or interact with physical impairments to create a disability), they may be a useful measurement. We note, however, that GAF scores are typically assessed in controlled, clinical settings that may differ from work environments in important respects. See, e.g., Titles II & XVI: Capability to Do Other WorkThemedical-Vocational Rules As A Framework for Evaluating Solely Nonexertional Impairments, SSR 85-15, 1985 SSR LEXIS 20, 1983-1991 Soc. Sec. Rep. Serv. 343 (S.S.A 1985) (“The mentally impaired may cease to function effectively when facing such demands as getting to work regularly, having their performance supervised, and remaining in the workplace for a full day.”). 25 26 759 F.3d at 1003 n.4. The record shows that Plaintiff received a GAF score of 58 in early 27 July 2009, a score of 60 in late July 2009, scores of 60 in August, September, November, 28 and December 2009, scores of 60 in February and March 2010, and most recently a score -7- 1 of 50 in January 2012. (AR 481, 479, 478, 477, 476, 475, 474, 473, 631.) As stated in 2 Garrison, Plaintiff’s GAF scores, alone, are not dispositive of Plaintiff’s ability to work. 3 See Garrison, 759 F.3d at 1003, 1005 (remanding for benefits where the plaintiff’s GAF 4 was at one point 55-60, and subsequently decreased to 50). 5 Further, the same records that show Plaintiff received GAF scores of around 60 6 also reflect that Plaintiff continued to suffer severe symptoms related to his mental 7 impairments. For example, Defendant cites to AR 479, a July 22, 2009 note from 8 Psychiatric Mental Health Nurse Practitioner Rose Garduno, stating that Plaintiff 9 reported his mood improved. (Doc. 27 at 6.) Less than one month later on August 19, 10 2009, however, Ms. Garduno noted that Plaintiff reported his “mood has been depressed” 11 and he feels rundown. (AR 478.) Similarly, in September 2009, Plaintiff reported that he 12 “continues to have depression and mood swings” and while he reported these symptoms 13 “were not quite as bad as before,” they were “still prominent.” (Id. at 477.) In fact, Ms. 14 Garduno increased Plaintiff’s dosage of Seroquel and added Bendaryl at that time. (Id.) 15 Likewise, in February 2010, Plaintiff reported that “he is more depressed,” he continues 16 to have anxiety, and “is on the verge of a panic attack.” (Id. at 474.) Accordingly, these 17 records cited by Defendant do not create “serious doubt” that Plaintiff is disabled. See 18 Garrison, 759 F.3d at 1017 (“Cycles of improvement and debilitating symptoms are a 19 common occurrence, and in such circumstances it is error for an ALJ to pick out a few 20 isolated instances of improvement over a period of months or years and to treat them as a 21 basis for concluding a claimant is capable of working.”). 22 Defendant further argues that “consistent with the ALJ’s finding that Plaintiff’s 23 allegations were not entirely credible, the record contained evidence that Plaintiff was not 24 always candid.” (Doc. 27 at 6.) In support, Defendant cites to AR 485, which states that 25 in June 2009, Plaintiff requested a new provider because he disagreed with the 26 medication his then-current provider prescribed. The same record also notes that Plaintiff 27 stated he “was not fully truthful” in his initial evaluation, and he “didn’t tell” his provider 28 “everything.” (AR 485.) The Court finds that this one record does not create “serious -8- 1 doubt” as to whether Plaintiff is disabled. Plaintiff’s vague comment in 2009 does not 2 support the assertion that he was later untruthful in describing his symptoms, particularly 3 in light of the treating and examining opinions and other records that support the severity 4 of his symptoms. (See, e.g., Id. at 384-391, 472-489, 517-603, 617-31, 647-48.) 5 Defendant also argues that the ALJ’s determination regarding Plaintiff’s ability to 6 work is supported by the fact that “Plaintiff’s treatment was essentially routine and 7 conservative.” 8 neurologist observed that a past occipital nerve block had worked to control Plaintiff’s 9 headaches for some time and ‘[c]currently [Plaintiff] only takes Imitrex on average once 10 a week.’”4 (Id.) Defendant also notes that in the same records, Plaintiff’s neurologist 11 recommended an additional occipital nerve block, but Plaintiff declined, stating that he 12 preferred to use ice and Imitrex when needed. (Id.) (Doc. 27 at 7.) Defendant states that in April 2010, “Plaintiff’s 13 “‘[E]vidence of conservative treatment is sufficient to discount a claimant’s 14 testimony regarding severity of an impairment.’” Parra v. Astrue, 481 F.3d 742, 751 (9th 15 Cir. 2007) (quoting Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)). 16 inadequately explained failure to pursue prescribed treatment can also be a sufficient 17 reason to discredit a claimant’s symptom testimony. See Molina v. Astrue, 674 F.3d 18 1104, 1112-13 (9th Cir. 2012). However, even if Plaintiff failed to pursue more 19 aggressive treatment recommended by his physician with regard to his headaches, there is 20 no evidence in the record that Plaintiff failed to pursue prescribed treatment for his 21 mental impairments. To the contrary, the record shows that Plaintiff sought medical 22 treatment and counseling, was referred to specialists for care, and was prescribed strong 23 medications, including Seroquel, Zoloft, and Temazepam. (AR 311-32, 472-485, 517- 24 603, 613-31.) An 25 Accordingly, 26 IT IS ORDERED that Defendant’s Motion to Remand (Doc. 26) is granted as 27 28 4 The ALJ likewise asserted that Plaintiff’s treatment was “conservative,” citing only to the fact that Plaintiff was taking Imitrex “as needed.” (AR 18-19.) -9- 1 provided in this Order. 2 IT IS FURTHER ORDERED that the final decision of the Commissioner of the 3 Social Security Administration is reversed and this case is remanded for an award of 4 benefits. The Clerk shall enter judgment accordingly and terminate this case. 5 Dated this 6th day of March, 2015. 6 7 8 Honorable John Z. Boyle United States Magistrate Judge 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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