Richard Carden v. Carolyn W Colvin

Filing 24

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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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RICHARD CARDEN,

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Plaintiff,
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v.
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CAROLYN W. COLVIN, ACTING
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COMMISSIONER OF SOCIAL SECURITY,
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Defendant.
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___________________________________)

NO. CV 13-3856-E

MEMORANDUM OPINION
AND ORDER OF REMAND

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Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS

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HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary

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judgment are denied and this matter is remanded for further

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administrative action consistent with this Opinion.

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PROCEEDINGS

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Plaintiff filed a complaint on June 5, 2013, seeking review of

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the Commissioner’s denial of disability benefits.

The parties filed a

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consent to proceed before a United States Magistrate Judge on July 11,

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2013.

Plaintiff filed a motion for summary judgment on January 14,

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2014.

Defendant filed a motion for summary judgment on February 13,

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2014.

Plaintiff filed a Reply on February 28, 2014.

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taken the motions under submission without oral argument.

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15; Minute Order, filed June 17, 2013.

The Court has
See L.R. 7-

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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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Plaintiff asserts disability since June 8, 1996, based primarily
on alleged mental problems (Administrative Record (“A.R.”) 65-777).

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In the most recent administrative decision, the Administrative Law

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Judge (“ALJ”) found Plaintiff has severe mental impairments, but also

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found that these impairments limit Plaintiff’s work capacity only

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moderately (A.R. 26-27).

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deemed Plaintiff’s testimony less than fully credible and rejected the

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opinions of Dr. John L. Perry, a treating psychiatrist (A.R. 28, 31-

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32).

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review (A.R. 1-5).

In denying disability benefits, the ALJ

The Appeals Council considered additional evidence, but denied

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STANDARD OF REVIEW

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Under 42 U.S.C. section 405(g), this Court reviews the

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Administration’s decision to determine if: (1) the Administration’s

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findings are supported by substantial evidence; and (2) the

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Administration used correct legal standards.

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Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,

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499 F.3d 1071, 1074 (9th Cir. 2007).

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relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion.”

See Carmickle v.

Substantial evidence is “such

Richardson v. Perales, 402 U.S. 389, 401
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(1971) (citation and quotations omitted); see Widmark v. Barnhart,

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454 F.3d 1063, 1066 (9th Cir. 2006).

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DISCUSSION

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I.

The ALJ Materially Erred in the Analysis of Plaintiff’s
Credibility.

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When an ALJ finds that a claimant’s medically determinable

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impairments reasonably could be expected to cause the symptoms

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alleged, the ALJ may not discount the claimant’s testimony regarding

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the severity of the symptoms without making “specific, cogent”

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findings, supported in the record, to justify discounting such

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testimony.

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Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Varney v.

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Secretary, 846 F.2d 581, 584 (9th Cir. 1988).1

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conclusory findings do not suffice.

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882, 885 (9th Cir. 2004) (the ALJ’s credibility findings “must be

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sufficiently specific to allow a reviewing court to conclude the ALJ

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rejected the claimant’s testimony on permissible grounds and did not

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arbitrarily discredit the claimant’s testimony”) (internal citations

Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); see

Generalized,

See Moisa v. Barnhart, 367 F.3d

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In the absence of evidence of “malingering,” most
recent Ninth Circuit cases have applied the “clear and
convincing” standard. See, e.g., Molina v. Astrue, 674 F.3d 1104
(9th Cir. 2012); Taylor v. Commissioner of Social Security
Admin., 659 F.3d 1228, 1234 (9th Cir. 2011); Valentine v.
Commissioner, 574 F.3d 685, 693 (9th Cir. 2009); Ballard v.
Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000)
(collecting cases). In the present case, the ALJ’s findings are
insufficient under either standard, so the distinction between
the two standards (if any) is academic.
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and quotations omitted); Holohan v. Massanari, 246 F.3d 1195, 1208

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(9th Cir. 2001) (the ALJ must “specifically identify the testimony

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[the ALJ] finds not to be credible and must explain what evidence

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undermines the testimony”); Smolen v. Chater, 80 F.3d 1273, 1284 (9th

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Cir. 1996) (“The ALJ must state specifically which symptom testimony

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is not credible and what facts in the record lead to that

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conclusion.”); see also Social Security Ruling 96-7p.

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In the present case, the ALJ found that Plaintiff’s “medically

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determinable impairments could reasonably be expected to cause the

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alleged symptoms” (A.R. 28).

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finding mandated that the ALJ either accept Plaintiff’s testimony

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regarding the assertedly disabling severity of the symptoms or state

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“specific, cogent” findings, supported in the record, to justify

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discounting such testimony.

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Plaintiff’s testimony on the stated bases of: (1) the “medical

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evidence” (A.R. 31-32); and (2) the ALJ’s perception that Plaintiff’s

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mental health treatment has been “conservative at best” (A.R. 32).

Under the above authorities, this

The ALJ appears to have rejected

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The “medical evidence” in itself cannot provide a legally

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sufficient basis for rejecting Plaintiff’s credibility.

A “lack of

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medical evidence can be a factor” in rejecting a claimant’s

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credibility, but cannot “form the sole basis.”

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F.3d 676, 681 (9th Cir. 2005).

Burch v. Barnhart, 400

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A conservative course of treatment sometimes can justify the

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rejection of a claimant’s testimony, at least where the testimony

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concerns physical problems.

See, e.g., Tommasetti v. Astrue, 533 F.3d
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1035, 1040 (9th Cir. 2008); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th

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Cir. 1999).

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Plaintiff’s mental health treatment as “conservative at best”

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mischaracterizes the treatment.

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forward, Plaintiff has been under the continuous care of mental health

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professionals, including psychiatrists, clinical pharmacists, and

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psychiatric social workers (A.R. 356-794).

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form of frequent therapy sessions and the prescribing of psychotropic

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medications (id.).

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In the present case, however, the ALJ’s description of

From at least November of 2006

This care has taken the

As another Magistrate Judge of this Court recently

determined on similar facts:

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Evidence of conservative treatment, such as over-the-counter

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medication, can be sufficient to discount a claimant’s

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allegations of disability. . . .

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has been taking psychotropic medication and receiving

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outpatient care since 2005.

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undergo inpatient hospitalization to be disabled.

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the Ninth Circuit has criticized the use of lack of

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treatment to reject mental complaints, both because mental

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illness is notoriously under-reported and because it is a

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questionable practice to chastise one with a mental

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impairment for the exercise of poor judgment in seeking

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rehabilitation.

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Adm., 166 F.3d 1294, 1299-1300 (9th Cir. 1999).

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conservative treatment reason is not clear and convincing.

Here, however, Plaintiff

Claimant does not have to
Indeed,

Regennitter v. Commissioner of Soc. Sec.
The ALJ’s

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Matthews v. Astrue, 2012 WL 1144423, at *9 (C.D. Cal. April 4, 2012);

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see Mason v. Colvin, 2013 WL 5278932, at *6 (E.D. Cal. Sept. 18, 2013)
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(treatment not “conservative” where claimant took prescription

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antidepressants and anti-psychotic medication for almost two years

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and, though not hospitalized during this time, received mental health

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treatment by a psychiatrist and a psychiatric social worker for a 14

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month period); Gutierrez v. Astrue, 2010 WL 729007, at *10 (E.D. Cal.

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March 1, 2010) (where plaintiff took psychotropic medication

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prescribed by a family practitioner, the fact that the claimant was

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“not being followed by a psychologist or a psychiatrist” failed to

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support the ALJ’s rejection of the claimant’s credibility); see also

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Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (“it is a

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questionable practice to chastise one with a mental impairment for the

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exercise of poor judgment in seeking rehabilitation”) (citations and

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quotations omitted).

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Plaintiff’s prescription medications have included Zyprexa,

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Depakote, Geodon, Remeron, Lithium, Zoloft, Risperdal, Wellbutrin,

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Seroquel, Trazodone and Buspirone (A.R. 276, 295, 356, 650, 678, 694,

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791).

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several of these medications connotes mental health treatment which is

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not “conservative,” within the meaning of social security

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jurisprudence.

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(E.D. Cal. Nov. 26, 2013) (Zyprexa); Mason v. Colvin, 2013 WL 5278932,

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at *3-6 (Geodon and Seroquel); Armstrong v. Colvin, 2013 WL 3381352,

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at *4-5 (C.D. Cal. July 8, 2013) (Zoloft and Seroquel); Simington v.

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Astrue, 2011 WL 1261298, at *7 (D. Or. Feb. 23, 2011), adopted, 2011

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WL 1225581 (D. Or. March 29, 2011) (Depakote and Lithium).

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Courts specifically have recognized that the prescription of

See, e.g., Gentry v. Colvin, 2013 WL 6185170, at *12

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Defendant appears to argue that the ALJ also stated a third

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reason for rejecting Plaintiff’s credibility (Defendant’s Motion at 8

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(“Further the ALJ observed that Plaintiff’s subjective pain complaints

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and his statements concerning his daily activities were not

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consistent”) (emphasis added)).

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“Subjective pain complaints” are not at issue in the present case.

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any event, it is unclear from the ALJ’s decision whether the ALJ

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actually predicated any part of the credibility determination on any

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perceived inconsistency between Plaintiff’s alleged mental illness

Defendant’s argument is misplaced.
In

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symptomology and Plaintiff’s admitted daily activities.

The ALJ’s

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decision mentions certain of Plaintiff’s daily activities, but does so

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in the context of summarizing “the most recent medical evidence,”

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specifically the report of Dr. Levin (A.R. 32).

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uphold a credibility determination based on a reason not specifically

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and expressly stated by the ALJ as the reason for the credibility

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determination.

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2003) (“Connett”) (district court erred by relying on reasons for

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discounting claimant’s testimony other than the reasons stated by the

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ALJ, even though the record supported the reasons on which the

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district court had relied); Pinto v. Massanari, 249 F.3d 840, 847 (9th

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Cir. 2001) (court “cannot affirm the decision of an agency on a ground

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that the agency did not invoke in making its decision”); Watts v.

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Astrue, 2012 WL 2577525, at *8-9 (E.D. Cal. July 3, 2012) (remand

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required where ALJ’s decision discussed the evidence potentially

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bearing on the claimant’s credibility, but “provide[d] no discussion

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how this evidence impacted the ALJ’s view of Plaintiff’s

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credibility”); see also Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th

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Cir. 1990) (“We are wary of speculating about the basis of the ALJ’s

The Court cannot

See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir.

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conclusion. . . .”); Lewin v. Schweiker, 654 F.2d 631, 634-35 (9th

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Cir. 1981) (ALJ’s decision should include a statement of the

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subordinate factual foundations on which the ALJ’s ultimate factual

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conclusions are based, so that a reviewing court may know the basis

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for the decision); Coronado v. Astrue, 2011 WL 3348066, at *8 (E.D.

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Cal. Aug. 2, 2011) (where the reasons for the ALJ’s credibility

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determination were uncertain, and the determination overlapped and

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blended with the ALJ’s discussion of the medical record, remand was

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appropriate).

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Assuming arguendo that the ALJ partially based the credibility

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determination on a perceived inconsistency between the daily

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activities mentioned in the ALJ’s decision and Plaintiff’s subjective

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complaints, the ALJ’s credibility determination still would fail.

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the context of discussing Dr. Levin’s report, the ALJ mentions the

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following daily activities of Plaintiff: “he is able to live alone,

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take care of self-dressing, self-bathing and personal hygiene,” and

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“while it is reported that [Plaintiff] had no family members or close

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friends, he remained capable of interacting and actually had no

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problems with any of the other individuals at his place of residence.”

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Self-sufficiency in personal care and the ability to live alone in a

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room without having problems with other people who live in the same

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building2 are not activities inconsistent with a claimed psychiatric

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inability to work at a job.

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incapacitated to be disabled.

A claimant does not have to be completely
See Fair v. Bowen, 885 F.2d 597, 603

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In

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Actually, Plaintiff reported considerable problems
interacting with people who lived in the same building (A.R. 510,
624, 767, 793).
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(9th Cir. 1989); see also Vertigan v. Halter, 260 F.3d 1044, 1049-50

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(9th Cir. 2001) (“the mere fact that a plaintiff has carried on

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certain daily activities, such as grocery shopping, driving a car, or

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limited walking for exercise, does not in any way detract from her

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credibility as to her overall disability.”); Gallant v. Heckler, 753

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F.2d 1450, 1453-55 (9th Cir. 1984) (fact that claimant could cook for

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himself and family members as well as wash dishes did not preclude a

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finding that claimant was disabled).

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II.

The ALJ Materially Erred in the Analysis of Dr. Perry’s Opinions.

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In addition to erring in the analysis of Plaintiff’s credibility,

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the ALJ erred in the analysis of Dr. Perry’s opinions.

A treating

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physician’s opinions “must be given substantial weight.”

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Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see Rodriguez v. Bowen, 876

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F.2d 759, 762 (9th Cir. 1989) (“the ALJ must give sufficient weight to

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the subjective aspects of a doctor’s opinion. . . .

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especially true when the opinion is that of a treating physician”)

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(citation omitted); see also Orn v. Astrue, 495 F.3d 625, 631-33 (9th

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Cir. 2007) (discussing deference owed to treating physician opinions).

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Even where the treating physician’s opinions are contradicted,3 “if

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the ALJ wishes to disregard the opinion[s] of the treating physician

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he . . . must make findings setting forth specific, legitimate reasons

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for doing so that are based on substantial evidence in the record.”

Embrey v.

This is

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Rejection of an uncontradicted opinion of a treating
physician requires a statement of “clear and convincing” reasons.
Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v.
Heckler, 753 F.2d at 1454.
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Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation,

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quotations and brackets omitted); see Rodriguez v. Bowen, 876 F.2d at

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762 (“The ALJ may disregard the treating physician’s opinion, but only

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by setting forth specific, legitimate reasons for doing so, and this

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decision must itself be based on substantial evidence”) (citation and

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quotations omitted).

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Furthermore, “[t]he ALJ has a special duty to fully and fairly
develop the record and to assure that the claimant’s interests are

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considered.

This duty exists even when the claimant is represented by

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counsel.”

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also Sims v. Apfel, 530 U.S. 103, 110-11 (2000) (“Social Security

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proceedings are inquisitorial rather than adversarial.

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ALJ’s duty to investigate the facts and develop the arguments both for

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and against granting benefits . . .”); DeLorme v. Sullivan, 924 F.2d

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841, 849 (9th Cir. 1991) (ALJ’s duty to develop the record is

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“especially important” “in cases of mental impairments”).

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effective at the time the ALJ rendered his most recent decision,

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section 404.1512(e) of 20 C.F.R. provided that the Administration

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“will seek additional evidence or clarification from your medical

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source when the report from your medical source contains a conflict or

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ambiguity that must be resolved, the report does not contain all of

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the necessary information, or does not appear to be based on medically

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acceptable clinical and laboratory diagnostic techniques.”

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C.F.R. § 404.1512(e) (eff. through Mar. 25, 2012);4 see also Smolen v.

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Chater, 80 F.3d at 1288 (“If the ALJ thought he needed to know the

Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983); see

It is the

As

See 20

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Paragraph (e) has since been deleted from this section.
See 20 C.F.R. § 404.1512.
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basis of Dr. Hoeflich’s opinions in order to evaluate them, he had a

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duty to conduct an appropriate inquiry, for example, by subpoenaing

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the physicians or submitting further questions to them.

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have continued the hearing to augment the record”) (citations

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omitted).

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triggered “when there is ambiguous evidence or when the record is

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inadequate to allow for proper evaluation of the evidence.”

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Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (citation omitted).

He could also

The ALJ’s duty under former section 404.1512(e) is

Mayes v.

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In 2006, 2007 and 2008, Dr. Perry saw Plaintiff regularly and

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prescribed “powerful medicine,” including Lithium and Geodon (A.R.

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433, 438).

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nevertheless remained so severe as to be disabling from all employment

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(A.R. 433-38).

Dr. Perry opined that Plaintiff’s mental problems

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The ALJ appears to have stated two reasons for rejecting Dr.

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Perry’s opinions: (1) a perceived lack of “explanation” for Dr.

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Perry’s prognosis of “chronic occupational disability” (A.R. 32); and

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(2) the ALJ’s belief that Dr. Perry’s opinions were “based on

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[Plaintiff’s] report of a number of symptoms and signs and

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[Plaintiff’s] report of memory limitations and concentration deficits.

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. . .” (A.R. 32).

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With regard to reason (1), the ALJ should have attempted to

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recontact Dr. Perry for further explanation.

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U.S. at 110-11; Smolen v. Chater, 80 F.3d at 1288; Brown v. Heckler,

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713 F.2d at 443; 20 C.F.R. 404.1512(e) (eff. through March 25, 2012).

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With regard to reason (2), an ALJ sometimes may disregard a treating
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See Sims v. Apfel, 530

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physician’s opinion which is based on a claimant’s subjective

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complaints, if the ALJ properly has discounted those subjective

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complaints.

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Cir. 2001); Fair v. Bowen, 885 F.2d at 605.

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however, the ALJ did not state sufficient reasons for discounting

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Plaintiff’s subjective complaints.

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Dr. Perry based his opinions solely on Plaintiff’s report of

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subjective symptoms or, as Plaintiff argues, on Dr. Perry’s

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observations of Plaintiff over more than a year’s time and Plaintiff’s

See, e.g., Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th
As discussed above,

Moreover, it is unclear whether

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asserted failure to respond adequately to the “powerful medicine”

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prescribed for him (A.R. 438).

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at *7 (E.D. Cal. Sept. 18, 2013) (ALJ’s decision to reject the opinion

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of a psychiatric social worker as having been “based primarily on

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Plaintiff’s self-reports” reversed where “a review of the report

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reveals that the social worker clearly delineated symptoms he observed

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himself versus those symptoms that were based on Plaintiff’s self-

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reports”).

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bases for Dr. Perry’s opinions, rather than presuming Dr. Perry based

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his opinions solely on Plaintiff’s self-reports.

Cf. Mason v. Colvin, 2013 WL 5278932,

The ALJ should have attempted to determine the actual

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III. Remand is Appropriate.

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Because the circumstances of the case suggest that further

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administrative review could remedy the ALJ’s errors, remand is

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appropriate.

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Connett, 340 F.3d at 876 (remand is an option where the ALJ fails to

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state sufficient reasons for rejecting a claimant’s excess symptom

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testimony); but see Orn v. Astrue, 495 F.3d at 640 (appearing,

McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see

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confusingly, to cite Connett for the proposition that “[w]hen an ALJ’s

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reasons for rejecting the claimant’s testimony are legally

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insufficient and it is clear from the record that the ALJ would be

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required to determine the claimant disabled if he had credited the

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claimant’s testimony, we remand for a calculation of benefits”)

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(quotations omitted); see also Vasquez v. Astrue, 572 F.3d 586, 600-01

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(9th Cir. 2009) (agreeing that a court need not “credit as true”

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improperly rejected claimant testimony where there are outstanding

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issues that must be resolved before a proper disability determination

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can be made); see generally INS v. Ventura, 537 U.S. 12, 16 (2002)

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(upon reversal of an administrative determination, the proper course

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is remand for additional agency investigation or explanation, except

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in rare circumstances).5

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CONCLUSION

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For all of the foregoing reasons,6 Plaintiff’s and Defendant’s

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motions for summary judgment are denied and this matter is remanded

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There are outstanding issues that must be resolved
before a proper disability determination can be made in the
present case. For example, it is not clear whether the ALJ would
be required to find Plaintiff disabled for the entire claimed
period of disability, even if the opinions of Dr. Perry were
fully credited. See Luna v. Astrue, 623 F.3d 1032, 1035 (9th
Cir. 2010). For at least this reason, the Ninth Circuit’s
decision in Harman v. Apfel, 211 F.3d 1172 (9th Cir.), cert.
denied, 531 U.S. 1038 (2000) does not compel a reversal for the
immediate payment of benefits.

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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.
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for further administrative action consistent with this Opinion.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: March 4, 2014.

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___ ___________________________
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/S/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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