Cheryle Ann Montgomery v. Michael J Astrue
Filing
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MEMORANDUM AND OPINION by Magistrate Judge Oswald Parada: Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED THAT Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings consistent with this Memorandum Opinion. (am)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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CHERYLE ANN
MONTGOMERY,
) Case No. CV 12-1094-OP
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Plaintiff,
) MEMORANDUM OPINION; ORDER
v.
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MICHAEL J. ASTRUE,
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Commissioner of Social Security, )
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Defendant.
)
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The Court1 now rules as follows with respect to the disputed issues listed in
18 the Joint Stipulation (“JS”).2
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Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before
the United States Magistrate Judge in the current action. (See ECF Nos. 7, 15.)
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As the Court stated in its Case Management Order, the decision in this
case is made on the basis of the pleadings, the Administrative Record, and the
27 Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal
28 Rules of Civil Procedure, the Court has determined which party is entitled to
judgment under the standards set forth in 42 U.S.C. § 405(g). (ECF No. 6 at 3.)
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I.
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DISPUTED ISSUES
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As reflected in the Joint Stipulation, the disputed issues raised by Plaintiff
4 as the grounds for reversal and/or remand are as follows:
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(1)
Whether the Administrative Law Judge (“ALJ”) properly determined
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Plaintiff’s residual functional capacity in light of his (a) determination
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of Plaintiff’s credibility, (b) rejection of the opinions of Plaintiff’s
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treating physicians, and (c) consideration of the consultative
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examiner’s opinion; and
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(2)
Whether the ALJ properly found that Plaintiff was capable of
performing alternative work.
12 (JS at 4-13, 31-39.)
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II.
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STANDARD OF REVIEW
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Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision
16 to determine whether the Commissioner’s findings are supported by substantial
17 evidence and whether the proper legal standards were applied. DeLorme v.
18 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means “more
19 than a mere scintilla” but less than a preponderance. Richardson v. Perales, 402
20 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec’y of
21 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial
22 evidence is “such relevant evidence as a reasonable mind might accept as adequate
23 to support a conclusion.” Richardson, 402 U.S. at 401 (citation omitted). The
24 Court must review the record as a whole and consider adverse as well as
25 supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986).
26 Where evidence is susceptible of more than one rational interpretation, the
27 Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450,
28 1452 (9th Cir. 1984).
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III.
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DISCUSSION
3 A.
The ALJ’s Findings.
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The ALJ found that Plaintiff has the severe impairments of status post
5 thoracotomy, chronic obstructive pulmonary disease, emphysema, depressive
6 disorder, and history of polysubstance abuse. (Administrative Record (“AR”) at
7 15.) The ALJ found Plaintiff had the residual functional capacity (“RFC”) to
8 perform a limited range of light work with the following limitations: Plaintiff is
9 able to lift twenty pounds occasionally and ten pounds frequently; sit and stand for
10 six hours in an eight-hour day; occasionally climb; be exposed to a minimal
11 amount of pulmonary irritants; and perform only simple, routine tasks. (Id. at 18.)
12 Relying on the testimony of a vocational expert (“VE”), the ALJ concluded that
13 Plaintiff was not capable of performing her past relevant work as a certified nurse
14 aid but could perform alternative work as ticket taker and small products
15 assembler. (Id. at 19-20.)
16 B.
The ALJ’s Consideration of Plaintiff’s Credibility.
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Plaintiff argues that the ALJ’s RFC assessment was flawed because it was
18 the result of underlying errors. First, Plaintiff contends that the ALJ improperly
19 rejected her subjective complaints of impairment. (JS at 4-7.)
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In his decision, the ALJ rejected Plaintiff’s credibility as follows:
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After careful consideration of the evidence, the undersigned finds
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that the claimant’s medically determinable impairments could
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reasonably be expected to cause the alleged symptoms; however, the
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claimant’s statements concerning the intensity, persistence and limited
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effects of these symptoms are not credible to the extent they are
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inconsistent with the above residual functional capacity assessment.
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In terms of the claimant’s alleged mental limitations, the record
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shows multiple diagnosis of alcohol-induced mood disorder. The
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claimant testified that she has been sober since August 17, 2009. Since
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that date, the record shows that the claimant has received very little
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physiological or medical treatment.
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Additionally, a treating physician diagnosed the claimant with
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malingering disorder. It was noted that the claimant was consciously
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selecting past material to make her condition appear worse. Given this
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evidence, the undersigned assigns little weight to the claimant’s reports
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to her physicians.
9 (AR at 18-19 (citations omitted).)
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An ALJ’s assessment of pain severity and claimant credibility is entitled to
11 “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v.
12 Heckler, 779 F.2d 528, 531 (9th Cir. 1986). When, as here, an ALJ’s disbelief of a
13 claimant’s testimony is a critical factor in a decision to deny benefits, the ALJ
14 must make explicit credibility findings. Rashad v. Sullivan, 903 F.2d 1229, 1231
15 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981); see also
16 Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (an implicit finding that
17 claimant was not credible is insufficient).
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Under the “Cotton test,” where the claimant has produced objective medical
19 evidence of an impairment which could reasonably be expected to produce some
20 degree of pain and/or other symptoms, and the record is devoid of any affirmative
21 evidence of malingering, the ALJ may reject the claimant’s testimony regarding
22 the severity of the claimant’s pain and/or other symptoms only if the ALJ makes
23 specific findings stating clear and convincing reasons for doing so. See Cotton v.
24 Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Smolen v. Chater, 80 F.3d
25 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993);
26 Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991). In other words, an ALJ
27 may reject a claimant’s testimony only upon “(1) finding evidence of malingering,
28 or (2) expressing clear and convincing reasons for doing so.” Benton ex. el.
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1 Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003).
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To determine whether a claimant’s testimony regarding the severity of his
3 symptoms is credible, the ALJ may consider, among other things, the following
4 evidence: (1) ordinary techniques of credibility evaluation, such as the claimant’s
5 reputation for lying, prior inconsistent statements concerning the symptoms, and
6 other testimony by the claimant that appears less than candid; (2) unexplained or
7 inadequately explained failure to seek treatment or to follow a prescribed course of
8 treatment; (3) the claimant’s daily activities; and (4) testimony from physicians
9 and third parties concerning the nature, severity, and effect of the claimant’s
10 symptoms. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also
11 Smolen, 80 F.3d at 1284. Social Security Ruling 96-7p further provides that an
12 individual may be less credible for failing to follow prescribed treatment without
13 cause. Soc. Sec. Ruling 96-7p.
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Here, the ALJ cited to evidence that Plaintiff had been diagnosed with
15 malingering and was found to “consciously select[] past material to make herself
16 appear worse.” (AR at 19.) The record supports this finding. (Id. at 326, 332.) In
17 light of the evidence of malingering, the ALJ was relieved of his duty to provide
18 clear and convincing reasons for rejecting Plaintiff’s credibility.3 Nevertheless, in
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The ALJ provided an additional reason for rejecting Plaintiff’s credibility:
21 the record contained little evidence of medical treatment since Plaintiff’s alleged
22 sobriety date of August 17, 2009. (AR at 18.) This reason, however, is not clear
23 and convincing. Despite evidence that Plaintiff received routine medical care
throughout the period at issue, the record is nearly devoid of any treatment notes
24 from Plaintiff’s treating physician Seya Eshraghi, M.D., and treating psychologist
25 Thomas Eby, Ph.D. In fact, of the 520 pages contained in the Administrative
Record, it seems just twenty-five pages pertain to routine medical treatment of
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Plaintiff by any provider. (Id. at 337-43, 489, 496-09, 518-20.) On the other
27 hand, the vast majority of the medical records pertain to inpatient surgical or
28 psychiatric treatment, or emergency room visits. The lack of records reflecting
(continued...)
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1 light of other evidence in the record indicating that Plaintiff is not a malingerer
2 (see, e.g., 496, 502, 506) and because this action must be remanded as discussed
3 below (see Discussion supra Part III.C), upon remand the ALJ should reconsider
4 Plaintiff’s credibility and set forth legally sufficient reasons for rejecting her
5 credibility, if the ALJ again determines rejection is warranted.4
6 C.
The ALJ Failed to Properly Consider the Opinions of the Treating
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Physician and Psychologist.
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Plaintiff contends that the ALJ’s erroneous RFC assessment was the result
9 of the improper rejection of the opinions of Plaintiff’s treating physician and
10 psychologist. (JS at 7-12.)
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The record contains two documents authored by Plaintiff’s treating
12 psychologist, Thomas Eby, Ph.D. First, in an April 15, 2009, assessment, Dr. Eby
13 diagnosed Plaintiff with “Depression NOS (R/O Substance Induced Mood
14 Disorder; R/O Major Depression, recurrent, moderate),” polysubstance abuse,
15 relational problem NOS, and posttraumatic stress disorder. (AR at 499.) Dr. Eby
16 reported Plaintiff’s Global Assessment of Functioning was 45/50, and her
17 prognosis was fair. (Id. at 499-500.)
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In a June 9, 2009, Mental Impairment Questionnaire, Dr. Eby reported a
19 diagnosis of Major Depression, with symptoms of sleep disturbance, mood
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(...continued)
22 medical care following Plaintiff’s alleged sobriety date is not surprising in light of
23 the lack of evidence of her routine medical care as a whole. Significantly, of the
few pages pertaining to routine medical treatment, one page reflects continued
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psychiatric care and a regimen of prescription medication after Plaintiff’s alleged
25 sobriety date. (Id. at 520.) Moreover, the fact that Plaintiff did not require
26 inpatient or emergency care in the six months between her alleged sobriety date
and the hearing before the ALJ is little proof that she did not continue to suffer
27 from the symptoms alleged.
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The Court expresses no view on the merits.
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1 disturbance, emotional lability, anhedonia or pervasive loss of interests, feelings
2 of guilt or worthlessness, difficulty thinking or concentrating, suicidal ideation or
3 attempts, perceptual disturbances, social withdrawal or isolation, deceased energy,
4 intrusive recollections of a traumatic experience, and persistent irrational fears.
5 (Id. at 505.) Dr. Eby opined that Plaintiff was extremely limited in her ability to
6 understand and remember detailed instructions, carry out detailed instructions, set
7 realistic goals or make plans independently of others, deal with stress of
8 semiskilled and skilled work, and interact appropriately with the general public.
9 (Id. at 508.) Dr. Eby found that Plaintiff suffers from marked limitations in her
10 ability to maintain attention for two-hour segments, maintain regular attendance
11 and be punctual within customary tolerances, sustain an ordinary routine without
12 special supervision, perform at a consistent pace without an unreasonable number
13 of rest periods, ask simple questions or request assistance, accept instructions and
14 respond appropriately to criticism from supervisors, get along with co-workers or
15 peers without unduly distracting them or exhibiting behavioral extremes, respond
16 appropriately to changes in a routine work setting, deal with normal work stress,
17 be aware of normal hazards and take appropriate precautions, maintain socially
18 appropriate behavior, travel in unfamiliar place, and use public transportation. (Id.
19 at 507-08.) Dr. Eby further concluded that Plaintiff was moderately limited in her
20 ability to remember work-like procedures, understand and remember very short
21 and simple instructions, carry out very short and simple instructions, work in
22 coordination with or proximity to others without being unduly distracted, make
23 simple work-related decisions, and adhere to basic standards of neatness and
24 cleanliness. (Id.) Dr. Eby also reported that Plaintiff was markedly limited in her
25 activities of daily living and in maintaining social functioning. (Id. at 509.) He
26 opined that Plaintiff would experience frequent deficiencies of concentration,
27 persistence, or pace, and would have repeated episodes of deterioration or
28 decompensation in work or work-like settings. (Id.)
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The record contains just a single document authored by Plaintiff’s treating
2 physician, Seya Eshraghi, M.D. In that April 21, 2009, Physical Residual
3 Functional Capacity Questionnaire, Dr. Eshraghi reported a diagnosis of COPD,
4 major depressive disorder, bipolar mood disorder, history of pericarditis, and left
5 hand carpal tunnel syndrome. (Id. at 501.) Dr. Eshraghi described Plaintiff’s
6 symptoms, complaints of pain, and the supporting clinical findings. (Id.) Dr.
7 Eshraghi reported that Plaintiff’s symptoms constantly interfere with attention and
8 concentration needed to perform even simple work tasks, she would be incapable
9 of even low stress jobs, she can only walk one block without rest, she can sit for
10 thirty minutes at a time, she can stand for ten minutes at a time, she would require
11 unscheduled twenty-minute breaks from work every hour, and could rarely lift less
12 than ten pounds. (Id. at 502-03.) The doctor further reported that Plaintiff could
13 occasionally hold her head in a static position; could rarely twist, stoop, and climb
14 stairs; and could never crouch and climb ladders. (Id. at 504.) According to Dr.
15 Eshraghi, Plaintiff would suffer from good days and bad days, and would likely be
16 absent from work more than four days a month as a result of impairments or
17 treatment. (Id.)
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In his decision, the ALJ offered the following discussion concerning Drs.
19 Eby and Eshraghi:
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As for the opinion evidence, the undersigned gives little weight
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to the opinions at Exhibit 32F and Exhibit 33F. While these reports
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assign quite severe limitations on the claimant, these opinions are not
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supported by the other evidence in the record and the treatment notes,
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if any, from these professionals do not support their opinions.
25 (Id. at 19 (citations omitted).)
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It is well established in the Ninth Circuit that a treating physician’s opinion
27 is entitled to special weight, because a treating physician is employed to cure and
28 has a greater opportunity to know and observe the patient as an individual.
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1 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). “The treating
2 physician’s opinion is not, however, necessarily conclusive as to either a physical
3 condition or the ultimate issue of disability.” Magallanes v. Bowen, 881 F.2d 747,
4 751 (9th Cir. 1989). The weight given a treating physician’s opinion depends on
5 whether it is supported by sufficient medical data and is consistent with other
6 evidence in the record. 20 C.F.R. §§ 404.1527(d), 416.927(d). Where the treating
7 physician’s opinion is uncontroverted by another doctor, it may be rejected only
8 for “clear and convincing” reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
9 1995); Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If the treating
10 physician’s opinion is controverted, as will be assumed to be the case here, it may
11 be rejected only if the ALJ makes findings setting forth specific and legitimate
12 reasons that are based on the substantial evidence of record. Thomas v. Barnhart,
13 278 F.3d 947, 957 (9th Cir. 2002); Magallanes, 881 F.2d at 751; Winans v.
14 Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The ALJ can “meet this burden by
15 setting out a detailed and thorough summary of the facts and conflicting clinical
16 evidence, stating his interpretation thereof, and making findings.” Thomas, 278
17 F.3d at 957 (citation omitted) (quotation marks omitted).
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First, the ALJ concluded that the opinions cited in the questionnaires
19 authored by Drs. Eby and Eshraghi were not supported by the treatment notes of
20 the doctors. (AR at 19.) “The ALJ need not accept the opinion of any physician,
21 including a treating physician, if that opinion is brief, conclusory, and
22 inadequately supported by clinical findings.” Thomas, 278 F.3d at 957; see also
23 Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). Here, the
24 ALJ is correct that the questionnaires are not supported by the treatment notes
25 included in the record. However, this is because the record is completely devoid
26 of treatment notes from Drs. Eby and Eshraghi, save for a single assessment of
27 Plaintiff by Dr. Eby. Despite evidence that Plaintiff was treated by these providers
28 for at least a period of months before the hearing before the ALJ, treatment records
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1 from these sources are almost nonexistent within the Administrative Record. It is
2 hard to imagine that these medical professionals treated Plaintiff for an extended
3 period without producing a single progress report or treatment note. The Court is
4 unclear how the record came to be so unrepresentative of Plaintiff’s treatment
5 history. Neither the ALJ nor Plaintiff’s counsel have offered an explanation for
6 the lack of treatment records. (See AR at 30 (indicating that the record contained
7 “everything”).) However, the ALJ has a duty to develop the record and obtain the
8 medical evidence necessary to properly evaluate the claimant’s application.
9 Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (ALJ’s duty to develop
10 the record is triggered “when the record is inadequate to allow for proper
11 evaluation of the evidence”). This duty applies whether or not the claimant is
12 represented, and is “heightened where the claimant may be mentally ill and thus
13 unable to protect [his or her] own interests.” Tonapetyan v. Halter, 242 F.3d 1144,
14 1150 (9th Cir. 2001) (citing Higbee v. Sullivan, 975 F.2d 558, 562 (9th Cir.
15 1992)); see also DeLorme, 924 F.2d at 849 (“In cases of mental impairments, this
16 duty [to develop the record] is especially important.”). It is unjust to fail to fully
17 develop the record regarding these treatment notes and then rely on the lack of
18 supporting treatment notes to reject the opinions of the treating sources.
19 Accordingly, this reason for rejecting the opinions of the treating sources was not
20 legitimate.
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The ALJ also rejected the treating opinions because they were not supported
22 by other evidence of record. (Id. at 19.) “To simply say a medical opinion is not
23 supported by the medical evidence is a conclusory statement and not an adequate
24 reason to reject the opinion.” Schulz v. Astrue, 849 F. Supp. 2d 1049 (W.D.
25 Wash. 2011) (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)).
26 Moreover, the ALJ’s conclusion is not supported by the record. The record is
27 replete with evidence of Plaintiff’s numerous psychiatric hospitalizations, routine
28 psychiatric care and medication management, and lung surgery and resulting
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1 impairments. (AR at 207-93, 490-95, 510-20.) In addition, as discussed more
2 fully below, the consultative examiner found Plaintiff to be at least partially
3 limited due to mood disorder, alcohol dependence, and potential major depression
4 or bipolar disorder. (Id. at 405-06.) While most of these records do not attempt to
5 classify the level of Plaintiff’s impairments in terms of her ability to perform work
6 activity, as do the reports from Drs. Eby and Eshraghi, they supported the
7 conclusions of the treating sources by confirming Plaintiff’s extended medical
8 history and repeated diagnosis of physical and mental impairments.5
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The ALJ’s failure to provide legally sufficient reasons for discounting the
10 opinions of Drs. Eby and Eshraghi warrants remand. See Embrey, 849 F.2d at 422
11 (in disregarding the findings of a treating physician, the ALJ must “provide
12 detailed, reasoned and legitimate rationales” and must relate any “objective
13 factors” he identifies to “the specific medical opinions and findings he rejects”);
14 Agnew-Currie v. Astrue, --- F. Supp. 2d ---, 2012 WL 2339584 (D. Ariz. June 19,
15 2012) (finding the application of the Ninth Circuit’s credit-as-true rule lies within
16 the discretion of the court and remand for further proceedings can be appropriate
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The ALJ might have dismissed the evidence of Plaintiff’s mental illness
on the basis of a finding that her limitations were caused by a long history of
alcohol and substance abuse. (See AR at 18 (finding that Plaintiff suffered from
an “alcohol-induced mood disorder” and rejecting her credibility on the basis of
Plaintiff’s limited medical treatment since her alleged sobriety date).) While the
ALJ might have reasonably questioned the extent to which Plaintiff’s
polysubstance abuse was a cause or an effect of Plaintiff’s mental illness, this
consideration does not take away from the fact that the record contains extensive
evidence of Plaintiff’s physical and mental impairments that supports the opinions
of Drs. Eby and Eshraghi. Whether Plaintiff’s substance abuse was a contributing
factor to her alleged disability must be considered in a separate analysis.
Significantly, however, the agency-contracted consultative examiner concluded
that Plaintiff suffers from “both a Mood Disorder and Alcoholism” and that she
“would still be subject to recurrent depressions whether or not she were drinking.”
(Id. at 405 (emphasis added).)
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1 after an ALJ has failed to give adequate reasons for rejecting a treating source
2 opinion). Accordingly, remand is required for the ALJ to obtain additional
3 evidence from Plaintiff’s treating sources and to set forth legally sufficient reasons
4 for rejecting their opinions, if the ALJ again determines rejection is warranted.6
5 D.
The ALJ’s Consideration of the Opinions of the Consultative Examiner.
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Plaintiff further complains that the RFC assessment is in error because the
7 ALJ failed to completely consider the opinions of the consultative examiner. (JS
8 at 12-13.)
9
On September 9, 2008, consultative psychologist, Isadore Wendel, Ph.D.,
10 conducted a Comprehensive Mental Examination of Plaintiff. Dr. Wendel
11 diagnosed Plaintiff with mood disorder, alcohol dependence, and possible major
12 depression or bipolar disorder. (AR at 405.) Dr. Wendel concluded that Plaintiff
13 “would still be subjected to recurrent depressions whether or not she were
14 drinking.” (Id.) Dr. Wendel reported that Plaintiff “has a desire to succeed,” but
15 that “she is unlikely to make much sustained progress.” (Id. at 406.) He further
16 concluded that Plaintiff has no impairment in social functioning, a mild
17 impairment in the activities of daily living on a psychological basis, and a
18 moderate impairment of concentration, persistence, and pace. (Id. at 406.) Dr.
19 Wendel cautioned that Plaintiff “would have repeated episodes of emotional
20 deterioration in work-like situations due to pain.” (Id. at 406.)
21
The ALJ discussed Dr. Wendel’s report, as follows:
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The claimant underwent a psychological consultative examination
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on September 9, 2008. The consultative examiner noted that the
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claimant had a major mood disorder and alcoholism. She [sic] opined
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that the claimant would likely benefit from a review of her psychotropic
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medications and from psychotherapy, as well as from structured alcohol
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The Court expresses no view on the merits.
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rehabilitation.
2
....
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With regard to concentration, persistence or pace, the claimant has
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moderate difficulties.
The consultative examiner opined that the
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claimant has moderate difficulties with respect to concentration,
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persistence or pace.
7 (AR at 16-17 (citations omitted).)
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“As is the case with the opinion of a treating physician, the Commissioner
9 must provide ‘clear and convincing’ reasons for rejecting the uncontradicted
10 opinion of an examining physician.” Lester, 81 F.3d at 830.
11
It is not clear from the ALJ’s opinion to what extent he might have credited
12 or rejected portions of Dr. Wendel’s assessment. While it is possible that the
13 consultative examiner’s report might be reconciled with the ALJ’s opinion, the
14 ALJ did not expressly consider Dr. Wendel’s opinion that Plaintiff would suffer
15 repeated episodes of emotional deterioration, that she is “unlikely to make much
16 sustained progress,” and that she “would still be subjected to recurrent depressions
17 whether or not she were drinking.” Because this action must be remanded for
18 further consideration of the treating source opinions, upon remand the ALJ should
19 also reconsider the opinions of the consultative examiner and provide reasoning as
20 to whether the consultative examiner’s opinions are credited or rejected.
21 E.
The ALJ’s Consideration of Plaintiff’s Ability to Perform Alternative
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Work.
23
Plaintiff argues that the ALJ erred in concluding that Plaintiff can perform
24 alternative work as a ticket taker or small products assembler. (JS at 31-39.)
25 Plaintiff argues that the ALJ’s error was premised on an incomplete hypothetical
26 to the VE because the hypothetical lacked Plaintiff’s limitation to simple routine
27 tasks. According to Plaintiff’s argument, the job of ticket taker requires more than
28 simple routine tasks. (Id. at 34-35.) Plaintiff further argues that the evidence
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1 shows she lacks the mental temperament to perform work as a ticket taker. (Id. at
2 36.) Finally, Plaintiff argues that the job of small products assembler is not
3 compatible with her limitations in handling and fingering, and in concentration,
4 persistence, and pace. (Id. at 37-39.)
5
The ALJ posed the following hypothetical to the VE:
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Let’s assume an individual forty-eight years of age, eleven grades
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of education, and the work experience as you have just described, and
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for each of these hypotheticals, A and B let’s take a person that is
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limited to, at most, simple routine tasks, and for each hypothetical
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minimal pulmonary irritants. Let’s add this person in hypo A being able
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to lift 10 pounds frequently to 20 pounds occasionally, and stand six in
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eight, sit six in eight, and occasionally climb, bend, or stoop. Any jobs
13
such a functionally restricted person could perform?
14 (AR at 41.) The VE testified that such an individual could perform work as a
15 ticket taker and a small products assembler. (Id.)
16
The ALJ then posed a second hypothetical to the VE:
17
Lets have this person able to lift 5 pounds frequently to 10
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occasionally, standing two in eight hours, and sitting six in eight hours,
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and occasional climb, bend, or stoop. Any jobs such a functionally
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restricted person could perform?
21 (Id. at 41-42.) The VE testified that such an individual could still perform the jobs
22 of ticket taker and small products assembler, but at reduced numbers. (Id. at 42.)
23
The ALJ ultimately adopted the RFC as reflected in the first hypothetical.
24 (Id. at 18.) Based on this finding and the VE’s testimony, the ALJ found that
25 Plaintiff was capable of performing work as a ticket taker and small products
26 assembler. (Id. at 20.)
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First, Plaintiff’s argument that the ALJ failed to include a limitation to
28 simple routine work in the hypothetical is erroneous. The ALJ expressly included
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1 such a limitation in his hypothetical question to the VE. (Id. at 41.) Furthermore,
2 the ALJ’s inclusion of a limitation to simple routine tasks adequately encompassed
3 Plaintiff’s limitations in concentration, persistence, and pace. Stubbs-Danielson v.
4 Astrue, 539 F.3d 1169, 1173-75 (9th Cir. 2008) (a limitation to simple and routine
5 work accurately encompasses a claimant’s limitations in his ability to maintain
6 concentration, persistence, and pace).
7
However, whether the ALJ was remiss in failing to include additional
8 limitations in the hypothetical is dependent upon the ALJ’s conclusions on remand
9 with respect to the issues detailed in Sections III.B-D, above. For this reason,
10 upon remand the ALJ should request additional testimony from a VE and pose to
11 the expert a hypothetical question including all of the physical and mental
12 limitations supported by the evidence.
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IV.
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ORDER
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Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS HEREBY
16 ORDERED THAT Judgment be entered reversing the decision of the
17 Commissioner of Social Security and remanding this matter for further
18 administrative proceedings consistent with this Memorandum Opinion.
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20 Dated: October 10, 2012
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HONORABLE OSWALD PARADA
United States Magistrate Judge
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