Terrell Carey v. Michael J. Astrue
Filing
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MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For the reasons set forth above, the ALJ's decision is reversed and the case is remanded to the Agency for further consideration. IT IS SO ORDERED. (ca)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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TERRELL CAREY,
Plaintiff,
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v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant.
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Case No. ED CV 12-1178-PJW
MEMORANDUM OPINION AND ORDER
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I. INTRODUCTION
Plaintiff appeals a decision by Defendant Social Security
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Administration (“the Agency”), denying his application for
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Supplemental Security Income (“SSI”).
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tive Law Judge (“ALJ”) erred when he rejected the opinions of his
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treating doctors.
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the ALJ erred and remands the case to the Agency for further
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proceedings consistent with this decision.
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He claims that the Administra-
For the following reasons, the Court concludes that
II.
SUMMARY OF PROCEEDINGS
In June 2009, Plaintiff applied for SSI, claiming that he was
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disabled due to bipolar disorder, attention deficit hyperactivity
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disorder, mild retardation, and a learning disability.
(Administra-
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tive Record (“AR”) 141-43, 157, 204.)
His application was denied
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initially and on reconsideration, after which he requested and was
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granted a hearing before an ALJ.
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2011, he appeared at the hearing with counsel and testified.
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73.)
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was not disabled.
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Council, which denied review.
(AR 77-81, 83-90, 95-96.)
In April
(AR 40-
Thereafter, the ALJ issued a decision, finding that Plaintiff
(AR 24-35.)
Plaintiff appealed to the Appeals
(AR 1-4.)
This action followed.
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III. DISCUSSION
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The doctors who offered opinions in this case concluded that
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Plaintiff was impaired due to low mental functioning and personality/
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psychiatric disorders.
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was whether Plaintiff would still be impaired absent drug and alcohol
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abuse.
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would; the non-treating doctors reached the opposite conclusion.
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ALJ accepted the opinions of the non-treating doctors and concluded
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that, without substance abuse, Plaintiff would not be impaired.
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Plaintiff contends that the ALJ erred in doing so.
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reasons, the Court finds that the ALJ did not err in this conclusion
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but that he should have recontacted Plaintiff’s doctor to allow him to
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explain his view.
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The ALJ agreed.
The question that remained
Plaintiff’s treating doctor, Vinh Dang, determined that he
The
For the following
Generally speaking, a treating doctor’s opinion is entitled to
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deference.
Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007); see also
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Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 600 (9th Cir.
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1999) (explaining that treating physician’s opinion “is given
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deference because ‘he is employed to cure and has a greater
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opportunity to know and observe the patient as an individual.’”)
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(quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)).
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Thus, all things being equal, a treating doctor’s opinion regarding a
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claimant’s condition should be given controlling weight.
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F.3d at 631; Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988).
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being said, however, an ALJ is not required to simply accept a
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treating doctor’s opinion.
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contradicted by another doctor’s opinion, the ALJ is empowered to
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reject the treating doctor’s opinion for specific and legitimate
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reasons that are supported by substantial evidence in the record.
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Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (quoting
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Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)); Morgan, 169
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Orn, 495
That
Where, as here, the opinion is
See
F.3d at 600.
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Dr. Vinh Dang is a family medicine doctor at Kaiser Permanente
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who began treating Plaintiff in 2008 or 2009 and saw him two or three
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times a year.
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diagnosed Plaintiff with a learning disability, mild mental
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retardation, and bipolar disorder.
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Plaintiff’s symptoms “likely have been present since birth.”
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723.)
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checked a single box, declaring, “My patient’s use of drugs and/or
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alcohol is a symptom of his condition, and/or is a form of self-
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medication.
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a brief note in February 2011, Dr. Dang explained that Plaintiff had
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been diagnosed with frontal lobe syndrome, which explains “his
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inability to plan for things and disinhibited behavior.”
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Dr. Dang opined that Plaintiff had “limited insight on the
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consequences of his actions,” and that “[i]t appears unlikely that he
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will ever overcome his disabilities.”
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(AR 715.)
In a letter dated June 2010, Dr. Dang
(AR 723.)
In Dr. Dang’s opinion,
(AR
In January 2011, he completed a check-the-box form in which he
The disability is independent of any use.”
(AR 656.)
In
(AR 715.)
(AR 715.)
The relevant opinion for purposes of the Court’s analysis is Dr.
Dang’s January 2011 opinion that Plaintiff’s disability was
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independent of drug and alcohol abuse.
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because it: (1) demonstrated that Dr. Dang “does not know
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[Plaintiff]”; (2) failed to address Plaintiff’s significant drug
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abuse; (3) was inconsistent with Plaintiff’s own statements about his
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condition; and (4) was inconsistent with Dr. Dang’s mental status
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examinations.
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justification because it is somewhat ambiguous, the record supports
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the second.
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alcohol abuse.
(AR 32.)
The ALJ rejected this opinion
Though the Court questions the first
Dr. Dang never addressed Plaintiff’s significant drug and
Nor did he explain in the January 2011 form or in any
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of his other submissions the basis for his opinion that Plaintiff’s
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impairments were independent of his drug and alcohol abuse.
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Dr. Dang’s January 2011 opinion is simply a conclusion with no
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explanation.
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the calculus of whether Plaintiff’s disability is impacted by his
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substance abuse.
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In fact,
As such, it is of no real value as it adds nothing to
There is also support for the ALJ’s third reason, i.e., that Dr.
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Dang’s opinion was inconsistent with Plaintiff’s own statements that
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his condition was improving and that he was doing “o.k.”
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Plaintiff reported to Dr. Dang and other doctors that he was getting
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better, which appears to have been the result of abstinence.
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53.)
In 2010,
(AR 647-
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As to the ALJ’s fourth reason–-that Dr. Dang’s opinion was
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inconsistent with the results of the mental status examinations–-the
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ALJ failed to provide any detail for the Court to evaluate this
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finding.
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status examinations support this finding in some places and contradict
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it in others.
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739-40.)
The records from Dr. Dang and the other doctors’ mental
(AR 240, 300, 310, 388, 437, 439, 441, 444, 638-54,
All in all, though, the Court finds that, even without this
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justification, the ALJ’s other reasons are sufficient to undermine Dr.
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Dang’s opinion.
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Plaintiff argues that the ALJ should have recontacted Dr. Dang
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and had him explain the basis for his opinion that Plaintiff’s
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substance abuse had no impact on his impairment.
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The Agency contends that there was no need to do so because there was
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no ambiguity in the evidence and the record was fully developed on the
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issue.
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There was some ambiguity in this record and, at least as to Dr. Dang,
(Joint Stip. at 13-14.)
(Joint Stip. at 9.)
Here, the Court sides with Plaintiff.
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this issue was not fully developed.
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several years and presumably had an explanation as to why Plaintiff
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would continue to be disabled even without drug and alcohol abuse.
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such, the Court concludes that the ALJ should have contacted him and
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asked him to explain his reasons for reaching this conclusion before
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rejecting the opinion outright.
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(9th Cir. 1996).
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Dr. Dang treated Plaintiff for
As
Smolen v. Chater, 80 F.3d 1273, 1288
On remand, the ALJ should do so.
As to Plaintiff’s other treating doctor, Dennis Khalili-Borna, he
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diagnosed Plaintiff with mild mental retardation and ADHD in April
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2010.
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Plaintiff’s condition and his significant problems with focus,
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attention, and judgment, he was incapable of working until at least
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April 2011.
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(1) failed to address Plaintiff’s significant drug abuse; (2) was
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inconsistent with Plaintiff’s own statements about his condition; and
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(3) was inconsistent with mental status examinations.
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record supports this finding in part.
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(AR 461.)
In Dr. Khalili-Borna’s opinion, as a result of
(AR 461.)
The ALJ rejected this opinion because it:
(AR 32.)
The
The ultimate issue before the ALJ was not whether Plaintiff was
impaired, but, rather, whether he would still be impaired if he
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abstained from drugs and alcohol.
Dr. Khalili-Borna’s opinion never
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addressed that issue and, therefore, it did not add anything to the
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analysis.
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Plaintiff’s reports to his doctors at about the same time that he was
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doing better.
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mental status examinations contradicted Dr. Khalili-Borna’s opinion
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that Plaintiff was impaired, though others did not.
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310, 388, 437, 439, 441, 444, 638-54, 739-40.)
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ambiguous evidence and the fact that Dr. Khalili-Borna never offered
Further, Dr. Khalili-Borna’s opinion was inconsistent with
(AR 647-53.)
Finally, some of the records from the
(AR 240, 300,
In light of this
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an opinion as to whether Plaintiff would still be disabled absent
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substance abuse, the ALJ should have recontacted him and allowed him
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to explain.
On remand, he should do so.
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IV.
CONCLUSION
For the reasons set forth above, the ALJ’s decision is reversed
and the case is remanded to the Agency for further consideration.
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IT IS SO ORDERED.
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DATED:
October 30, 2013.
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PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE
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S:\PJW\Cases-Social Security\CAREY, 1178\Memo Opinion and Order.wpd
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