Beymer v. Astrue

Filing 22

ORDER that the Commissioner's final decision in this matter is REVERSED. Plaintiff's claim for benefits is REMANDED to the Commissioner of Social Security Administration for an immediate payment of benefits. The Clerk of Court is instructed to enter judgment accordingly and close this case.. Signed by Magistrate Judge Bernardo P Velasco on 8/7/2013. (JKM)

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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 M.B. a minor (by the mother, Deborah Beymer), No. CV-12-00188-TUC-BPV ORDER 10 Plaintiff, 11 v. 12 Carolyn W. Colvin, Acting Commissioner of Social Security, 13 Defendant. 14 15 Plaintiff’s mother filed this action for review of the final decision of the 16 17 Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). The United States 18 Magistrate Judge presides over this case pursuant to 28 U.S.C. § 636 (c) and Fed.R.Civ.P. 19 20 21 22 23 73, having received the written consent of both parties. I. PROCEDURAL HISTORY Plaintiff’s mother protectively filed an application for Supplemental Security Income (“SSI”) on January 11, 2008, alleging an onset of disability beginning January 24 25 11, 2008 due to mental problems: learning difficulties; behavioral impairments; difficulty 26 taking care of personal needs; and difficulty paying attention and sticking to a task. 27 28 Transcript/Administrative Record (“Tr.”) 106-12, 113, 117-128. The application was 1 2 denied initially and on reconsideration. Tr. 69-71, 72-74. A hearing before an Administrative Law Judge (“ALJ”) was held on January 22, 2010. Tr. 57-68. The ALJ 3 4 issued a decision on June 4, 2010, finding Plaintiff, 9 years old on the date of the ALJ’s 5 decision, had severe impairments of attention deficit hyperactivity disorder (ADHD; 6 learning disorder; and explosive disorder, but was not disabled within the meaning of the 7 8 9 Social Security Act. Tr. 18-38. This decision became the Commissioner’s final decision when the Appeals Council denied review. Tr. 1-4. 10 11 Plaintiff’s mother then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). (Doc. 1) For reasons that follow, the Court reverses the decision of the 12 13 14 15 Commissioner and remands for an immediate award of benefits. II. STANDARD OF REVIEW A person under the age of 18 will be considered disabled and eligible for 16 17 Supplemental Security Income (SSI) if he has a “medically determinable physical or 18 mental impairment, which results in marked and severe functional limitations, and which 19 can be expected to result in death or which has lasted or can be expected to last for a 20 21 continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i). The 22 Commissioner employs a three-step sequential process to evaluate SSI claims for minors. 23 First, if the claimant is engaged in substantial gainful activity, he is not disabled. 20 24 C.F.R. § 416.924(b). Second, if the claimant does not have a medically determinable 25 26 severe impairment(s), in that the impairment does not cause more than minimal 27 functional limitations, he is not disabled. 20 C.F.R. § 426.924(c). Third, if the claimant’s 28 impairment does not meet, medically equal, or functionally equal an impairment in the -2- 1 2 listings, he is not disabled. 20 C.F.R. § 924(d). There are six areas the Commissioner assesses for functional equivalence: acquiring and using information; attending and 3 4 5 completing tasks; interacting and relating with others; moving about and manipulating objects; caring for yourself; and health and physical wellbeing. 20 C.F.R. § 416.926a(b). 6 The findings of the Commissioner are meant to be conclusive if supported by 7 8 substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere 9 scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 10 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may 11 overturn the decision to deny benefits only “when the ALJ’s findings are based on legal 12 13 error or are not supported by substantial evidence in the record as a whole.” Aukland v. 14 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ “and not the 15 reviewing court must resolve conflicts in the evidence, and if the evidence can support 16 17 either outcome, the court may not substitute its judgment for that of the ALJ.” Matney, 18 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. 19 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner’s 20 21 decision, however, “cannot be affirmed simply by isolating a specific quantum of 22 supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing 23 Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider 24 the evidence that supports as well as detracts from the Commissioner’s conclusion. Day 25 26 v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). 27 III. 28 DISCUSSION Plaintiff argues that the ALJ failed to give controlling weight to his treating -3- 1 2 psychiatrist’s opinion. In May, 2006, Plaintiff underwent a psychiatric intake evaluation with psychiatric nurse practitioner Karen Van Wie of Providence Service Corp., because 3 4 of worsening temper tantrums and aggressive behavior towards others. Tr. 355. Ms. Van 5 Wie assessed generalized anxiety disorder and post-traumatic stress disorder, as well as 6 victim of neglect and rule out attention deficit hyperactivity disorder (ADHD). Ms. Van 7 8 9 10 11 Wie assigned Plaintiff a GAF score of 45 to 50.1 She prescribed medication and recommended an evaluation to rule out dyslexia, learning disorder, and color blindness. Tr. 359. In November 2006, Plaintiff’s care was transferred to treating psychiatrist Michael 12 13 Mardis, M.D., at Providence, who conducted an initial exam of Plaintiff and diagnosed 14 him with ADHD, Intermittent Explosive Disorder, and Anxiety Disorder, and considered 15 a diagnosis of Pervasive Developmental Disorder Syndrome. Tr. 393. The administrative 16 17 18 19 20 21 22 23 24 25 26 27 28 record contains medical records from Dr. Mardis dated from the initial evaluation through October 2009. Tr. 345-47, 361-64, 367-80, 383-86, 388-89, 391-95, 407-21, 423, 1 GAF Scores range from 1-100. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (4th ed.) (DSM-IV), at 32. “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). In arriving at a GAF Score, the clinician considers psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. DSMIV, at 34. In children, a GAF, or Children’s Global Assessment Scale score of 41-50 indicates: Moderate degree of interference in functioning in most social areas or severe impairment of functioning in one area, such as might result from, for example, suicidal preoccupations and ruminations, school refusal and other forms of anxiety, obsessive rituals, major conversion symptoms, frequent anxiety attacks, poor to inappropriate social skills, frequent episodes of aggressive or other antisocial behaviour with some preservation of meaningful social relationships. -4- 1 2 454-59, 462, 482-84. During the course of treatment, Dr. Mardis prescribed numerous medications for Plaintiff’s various symptoms, summarized in Dr. Mardis’s psychiatric 3 4 update containing a detailed medication report and description of each medication’s 5 efficacy, dated October 30, 2009.2 Tr. 482. In October 2009, Dr. Mardis diagnosed 6 Plaintiff with Asperger’s disorder, ADHD not otherwise specified, mood disorder not 7 8 9 10 11 12 13 14 15 16 17 otherwise specified, generalized anxiety disorder, and multiple learning disorders, and noted: [Plaintiff] has shown some improvement with his ADHD symptoms with medications, however he continues to have difficulties in that area. Some of the ADHD symptoms may actually be related to anxiety. The aggression has been a continual problem, and has shown some improvement with medications. Anxiety has not improved at all in the past few years. Even with the recent addition of an anti-anxiety agent. Social skills have shown some improvement with time, as he now has one good friend that he gets together with fairly often and expresses a desire to be with. He has not required any psychiatric hospitalizations or residential treatment placements. Tr. 482, 484. Dr. Mardis completed a Childhood Disability Evaluation Form and 18 19 opined that Plaintiff had marked limitations in acquiring and using information, with 20 “some difficulties with learning disabilities – with reading and math, as well as writing”; 21 marked limitations with attending and completing tasks, with “significant difficulties 22 23 with sustaining his attention in tasks, and in focusing on relevant stimuli, leading to 24 difficulties in school and poor follow through at home”’ extreme limitations in interacting 25 and relating with others, with “frequent episodes of aggression to family members, 26 27 28 2 These medications included, in various dosages and combinations: Vyvanse; Dexedrine; Risperdal; BuSpar; Strattera; Metadate CD; Adderall; Prozac; Tenex; Abilify; and Lithium Carbonate. Tr. 483. At the time of the report, Plaintiff’s medication regimen included Vyvanse, Dexedrine, Risperdal and BuSpar. Tr. 482. -5- 1 2 leading to extreme disruption at home”; marked limitations in health and physical wellbeing, “due to aggressive incidents, anger, and significant anxiety over timing of events, 3 4 contamination fears.” Tr. 485-86. 5 The ALJ acknowledged Dr. Mardis as Plaintiff’s treating psychiatrist but gave Dr. 6 Mardis’s opinion minimal weight, finding the opinion and evaluation over-restrictive 7 8 based on Dr. Mardis’s own treatment notes and other evidence of record. Tr. 26. The ALJ 9 further discounted Dr. Mardis’s opinion because of the possibility that Dr. Mardis 10 submitted his opinion in an effort to assist Plaintiff because Dr. Mardis sympathized with 11 the Plaintiff. Tr. 26. The ALJ gave great weight to the opinions of reviewing State 12 13 Agency psychologist Jocelyn Fuller, Ph.D., and the other State Agency reviewing 14 physicians who affirmed Dr. Fuller’s assessment.3 Tr. 26. Reviewing psychologist Dr. 15 Fuller’s opinion contradicted Dr. Mardis’s opinion. Dr. Fuller found no limitation in 16 17 health and physical well-being, and less than marked limitations in all other functional 18 equivalence categories. Tr. 447-452. Plaintiff was examined by State Agency 19 psychologist and speech pathologist Judith Kroese, Ph.D., who concluded that, with 20 21 regard to intellectual functioning, “his overall score was within the Borderline range” and 22 his “verbal intellectual functioning was within the Low Average range as well as his 23 working memory.” Tr. 436. Plaintiff’s speed of processing and nonverbal intellectual 24 functioning were also within the Borderline range. Id. His scores in the area of math 25 26 27 28 3 Because the State Agency reviewing psychologist and physician who reviewed Dr. Fuller’s assessment did not indicate what records they reviewed and failed to provide any explanation for the conclusions they reached, (Tr. 468-76) their assessments carry no additional weight and merit no further discussion in this order. -6- 1 2 calculation and writing were significantly lower than would be expected for his overall level of intellectual functioning, and his behavior during the one-to-one evaluation was 3 4 consistent with a diagnosis of ADHD. Id. 5 Where a treating doctor’s ultimate conclusion is contradicted, as in this case by 6 Dr. Fuller, it may be rejected only for specific and legitimate reasons that are supported 7 8 by substantial evidence in the record. Carmickle v. Comm’r Soc.Sec. Admin., 533 F.3d 9 1155, 1164 (9th Cir. 2008)(citing Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)); 10 see also Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (detailed, reasoned, and 11 legitimate rationales required to reject treating doctor’s ultimate conclusions). When 12 13 rejecting the opinion of a treating physician, the ALJ can meet this "'burden by setting out 14 a detailed and thorough summary of the facts and conflicting clinical evidence, stating his 15 interpretation thereof, and making findings.'" Tommasetti v. Astrue, 533 F.3d 1035, 1041 16 17 (9th Cir. 2008)(quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The 18 Social Security Administration has explained that an ALJ's finding that a treating source 19 medical opinion is not well-supported by medically acceptable evidence or is inconsistent 20 21 with substantial evidence in the record means only that the opinion is not entitled to 22 controlling weight, not that the opinion should be rejected. Orn v. Astrue, 495 F.3d 625, 23 632 (9th Cir. 2007) (citing 20 C.F.R. § 404.1527). Treating source medical opinions are 24 still entitled to deference and, “[i]n many cases, will be entitled to the greatest weight and 25 26 should be adopted, even if it does not meet the test for controlling weight." Orn, 495 F.3d 27 at 632; see also Murray,722 F.2d at 502 ("If the ALJ wishes to disregard the opinion of 28 the treating physician, he or she must make findings setting forth specific, legitimate -7- 1 2 reasons for doing so that are based on substantial evidence in the record.") As a non-examining physician, Dr. Fuller’s opinion, cannot, by itself “constitute 3 4 substantial evidence that justifies the rejection of the opinion of either an examining 5 physician or a treating physician.” Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995). 6 Further, while it is not clear what medical evidence of record Dr. Fuller reviewed, Dr. 7 8 9 10 11 Fuller’s notes indicate that, if she in fact reviewed the entirety of the record, she ignored or failed to discuss in any detail treatment notes by Plaintiff’s primary mental health provider Dr. Mardis. (See Tr. 449-50.) The ALJ’s finding that “Dr. Mardis’s opinion and evaluation of the claimant’s 12 13 limitations in each domain is over-restrictive based on Dr. Mardis’s own treatment notes 14 and other evidence of record” (Tr. 26) does not set forth the specific detail necessary, nor 15 does it achieve the level of specificity required to reject a treating physician’s conclusion. 16 17 See Embrey, 849 at 421-422 (“To say that medical opinions are not supported by 18 sufficient objective findings or are contrary to the preponderant conclusions mandated by 19 the objective findings does not achieve the level of specificity our prior cases have 20 21 required… .”) The ALJ states that, “[a]s discussed more fully below, Dr. Mardis reports 22 on a number of occasions that the claimant’s behavior at school has improved, and that 23 the medication is helping the claimant’s symptoms.” Tr. 26 (emphasis added). The ALJ, 24 however, does not discuss Dr. Mardis’s report more fully in the rest of the opinion, and, 25 26 in fact, does not discuss Dr. Mardis’s report, or Dr. Mardis’s treatment notes consisting of 27 nearly three years of treatment, in any more detail at all. See Tr. 26-34. While the 28 Commissioner attempts to substantiate the ALJ’s conclusion by referring to Dr. Mardis’s -8- 1 2 treatment notes, in opposition to Plaintiff’s opening brief, (see Doc. 20, at 15-17), this Court reviews only the reasons provided by the ALJ in the disability determination and 3 4 may not affirm the ALJ on a ground upon which he did not rely. Orn, 495 F.3d 625 at 5 630 (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). See Pinto v. 6 Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001)(the district court may not affirm the 7 8 ALJ's decision “on a ground not invoked by the Commissioner in denying the benefits 9 originally”); Accord Varney v. Sec’y Health & Human Serv., 859 F.2d 1396, 1399 (9th 10 Cir. 1988) (“there may exist valid grounds on which to discredit a claimant's pain 11 testimony.... But if grounds for such a finding exist, it is both reasonable and desirable to 12 13 require the ALJ to articulate them in the original decision.”) (internal quotes and citation 14 omitted). For example, Dr. Mardis’s opined that Plaintiff had marked limitations in health 15 and physical well-being. Tr. 486. Examining consultative physician Dr. Kroese opined 16 17 that Plaintiff’s difficulties with attention, hyperactivity, and aggression had greatly 18 interfered with his well-being. Tr. 438. Despite these two physician’s opinions, the ALJ 19 concluded, with no reference to the record at all, that Plaintiff had no limitations in health 20 21 and physical well-being. Tr. 34. The ALJ’s errs by rejecting both the treating and 22 examining physicians’ opinions without stating a reason, much less a specific and 23 legitimate reason for doing so, based on substantial evidence in the record. 24 Finally, the ALJ errs by speculating, without introducing evidence of any actual 25 26 improprieties, that Dr. Mardis fabricated his opinion in order to assist Plaintiff to collect 27 disability benefits. Lester, 81 F.3d at 832. 28 IV. CONCLUSION -9- 1 The court has the discretion to make a determination to remand for further 2 proceedings or to simply award benefits. Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 3 4 1981). At a minimum, the failure to make adequate findings necessitates a remand for a 5 redetermination of fault. Id. “If additional proceedings can remedy defects in the original 6 administrative proceedings, a social security case should be remanded.” Id. 7 8 Plaintiff requests that the Court award benefits. Defendant requests that the Court 9 deny relief or, if the Court concludes there was reversible error, remand for further 10 proceedings. A federal court may affirm, modify, reverse, or remand a social security 11 case. 42 U.S.C. § 405(g). “'[T]he decision whether to remand the case for additional 12 13 evidence or simply to award benefits is within the discretion of the court.' " Rodriguez v. 14 Bowen, 876 F.2d 759, 763 (9th Cir. 1989) (quoting Stone v. Heckler, 761 F.2d 530, 533 15 (9th Cir. 1985)). "Remand for further administrative proceedings is appropriate if 16 17 enhancement of the record would be useful." Benecke v. Barnhart, 379 F.3d 587, 593 (9th 18 Cir. 2004)(citing Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)). Conversely, 19 remand for an award of benefits is appropriate where: 20 21 22 23 (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. 24 25 26 Id. (citations omitted) Where the test is met, "we will not remand solely to allow the ALJ to make specific findings ... Rather we take the relevant testimony to be established as 27 28 true and remand for an award of benefits." Benecke, 379 F.3d at 593 (citations omitted); - 10 - 1 2 see also Lester, 81 F.3d at 834 (same). “Where the Commissioner fails to provide adequate reasons for rejecting the 3 4 opinion of a treating or examining physician, we credit that opinion ‘as a matter of law.’” 5 Lester, 81 F.3d at 834 (quoting Hammock, 879 F.2d at 502); Benecke, 379 F.3d at 594 6 (“Because the ALJ failed to provide legally sufficient reasons for rejecting Benecke's 7 8 testimony and her treating physicians' opinions, we credit the evidence as true.”). The 9 ALJ failed to provide legally sufficient reasons to reject Dr. Mardis’s opinion. Dr. 10 Mardis’s opinion established marked limitations in three functional domains, and extreme 11 limitations in one functional domain of the six areas the Commissioner assesses for 12 13 functional equivalence. Adopting Dr. Mardis’s opinion as true results in the conclusion 14 that Plaintiff’s impairment functionally equaled the listings. Under these circumstances, it 15 is evident from the record that no outstanding issues must be resolved, and if Dr. 16 17 Mardis’s opinion is credited as true, the ALJ would be required to find the Plaintiff 18 disabled. See Benecke, 379 F.3d at 593-595 (remanding for an award of benefits where 19 no outstanding issues remain and ALJ would be required to find claimant disabled if 20 21 evidence is credited); Regennitter v. Comm’r Soc. Sec. Admin., 166 F.3d 1294, 1300 (9th 22 Cir. 1999)(where the court "conclude[s] that ... a doctor's opinion should have been 23 credited and, if credited, would have led to a finding of eligibility, we may order the 24 payment of benefits."); Lester, 81 F.3d at 834 (remanding for payment of benefits 25 26 because, after crediting doctor's opinion as true, inter alia, "the evidence ... demonstrates 27 that ..." the plaintiff was disabled.); 28 VI. Conclusion - 11 - 1 2 IT IS THEREFORE ORDERED that the Commissioner’s final decision in this matter is REVERSED. 3 4 IT IS FURTHER ORDERED that Plaintiff’s claim for benefits is REMANDED to 5 the Commissioner of Social Security Administration for an immediate payment of 6 benefits. 7 8 9 The Clerk of Court is instructed to enter judgment accordingly and close this case. Dated this 7th day of August, 2013. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 -

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