Terrell Carey v. Michael J. Astrue

Filing 18

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 TERRELL CAREY, Plaintiff, 11 12 13 14 15 v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 12-1178-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration (“the Agency”), denying his application for 20 Supplemental Security Income (“SSI”). 21 tive Law Judge (“ALJ”) erred when he rejected the opinions of his 22 treating doctors. 23 the ALJ erred and remands the case to the Agency for further 24 proceedings consistent with this decision. 25 26 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 27 disabled due to bipolar disorder, attention deficit hyperactivity 28 disorder, mild retardation, and a learning disability. (Administra- 1 tive Record (“AR”) 141-43, 157, 204.) His application was denied 2 initially and on reconsideration, after which he requested and was 3 granted a hearing before an ALJ. 4 2011, he appeared at the hearing with counsel and testified. 5 73.) 6 was not disabled. 7 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. 8 III. DISCUSSION 9 The doctors who offered opinions in this case concluded that 10 Plaintiff was impaired due to low mental functioning and personality/ 11 psychiatric disorders. 12 was whether Plaintiff would still be impaired absent drug and alcohol 13 abuse. 14 would; the non-treating doctors reached the opposite conclusion. 15 ALJ accepted the opinions of the non-treating doctors and concluded 16 that, without substance abuse, Plaintiff would not be impaired. 17 Plaintiff contends that the ALJ erred in doing so. 18 reasons, the Court finds that the ALJ did not err in this conclusion 19 but that he should have recontacted Plaintiff’s doctor to allow him to 20 explain his view. 21 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 22 deference. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007); see also 23 Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 600 (9th Cir. 24 1999) (explaining that treating physician’s opinion “is given 25 deference because ‘he is employed to cure and has a greater 26 opportunity to know and observe the patient as an individual.’”) 27 (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). 28 Thus, all things being equal, a treating doctor’s opinion regarding a 2 1 claimant’s condition should be given controlling weight. 2 F.3d at 631; Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). 3 being said, however, an ALJ is not required to simply accept a 4 treating doctor’s opinion. 5 contradicted by another doctor’s opinion, the ALJ is empowered to 6 reject the treating doctor’s opinion for specific and legitimate 7 reasons that are supported by substantial evidence in the record. 8 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (quoting 9 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)); Morgan, 169 10 Orn, 495 That Where, as here, the opinion is See F.3d at 600. 11 Dr. Vinh Dang is a family medicine doctor at Kaiser Permanente 12 who began treating Plaintiff in 2008 or 2009 and saw him two or three 13 times a year. 14 diagnosed Plaintiff with a learning disability, mild mental 15 retardation, and bipolar disorder. 16 Plaintiff’s symptoms “likely have been present since birth.” 17 723.) 18 checked a single box, declaring, “My patient’s use of drugs and/or 19 alcohol is a symptom of his condition, and/or is a form of self- 20 medication. 21 a brief note in February 2011, Dr. Dang explained that Plaintiff had 22 been diagnosed with frontal lobe syndrome, which explains “his 23 inability to plan for things and disinhibited behavior.” 24 Dr. Dang opined that Plaintiff had “limited insight on the 25 consequences of his actions,” and that “[i]t appears unlikely that he 26 will ever overcome his disabilities.” 27 28 (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 3 1 independent of drug and alcohol abuse. 2 because it: (1) demonstrated that Dr. Dang “does not know 3 [Plaintiff]”; (2) failed to address Plaintiff’s significant drug 4 abuse; (3) was inconsistent with Plaintiff’s own statements about his 5 condition; and (4) was inconsistent with Dr. Dang’s mental status 6 examinations. 7 justification because it is somewhat ambiguous, the record supports 8 the second. 9 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 10 of his other submissions the basis for his opinion that Plaintiff’s 11 impairments were independent of his drug and alcohol abuse. 12 Dr. Dang’s January 2011 opinion is simply a conclusion with no 13 explanation. 14 the calculus of whether Plaintiff’s disability is impacted by his 15 substance abuse. 16 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. 17 Dang’s opinion was inconsistent with Plaintiff’s own statements that 18 his condition was improving and that he was doing “o.k.” 19 Plaintiff reported to Dr. Dang and other doctors that he was getting 20 better, which appears to have been the result of abstinence. 21 53.) In 2010, (AR 647- 22 As to the ALJ’s fourth reason–-that Dr. Dang’s opinion was 23 inconsistent with the results of the mental status examinations–-the 24 ALJ failed to provide any detail for the Court to evaluate this 25 finding. 26 status examinations support this finding in some places and contradict 27 it in others. 28 739-40.) 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 4 1 justification, the ALJ’s other reasons are sufficient to undermine Dr. 2 Dang’s opinion. 3 Plaintiff argues that the ALJ should have recontacted Dr. Dang 4 and had him explain the basis for his opinion that Plaintiff’s 5 substance abuse had no impact on his impairment. 6 The Agency contends that there was no need to do so because there was 7 no ambiguity in the evidence and the record was fully developed on the 8 issue. 9 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. 10 this issue was not fully developed. 11 several years and presumably had an explanation as to why Plaintiff 12 would continue to be disabled even without drug and alcohol abuse. 13 such, the Court concludes that the ALJ should have contacted him and 14 asked him to explain his reasons for reaching this conclusion before 15 rejecting the opinion outright. 16 (9th Cir. 1996). 17 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 18 diagnosed Plaintiff with mild mental retardation and ADHD in April 19 2010. 20 Plaintiff’s condition and his significant problems with focus, 21 attention, and judgment, he was incapable of working until at least 22 April 2011. 23 (1) failed to address Plaintiff’s significant drug abuse; (2) was 24 inconsistent with Plaintiff’s own statements about his condition; and 25 (3) was inconsistent with mental status examinations. 26 record supports this finding in part. 27 28 (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 5 1 abstained from drugs and alcohol. Dr. Khalili-Borna’s opinion never 2 addressed that issue and, therefore, it did not add anything to the 3 analysis. 4 Plaintiff’s reports to his doctors at about the same time that he was 5 doing better. 6 mental status examinations contradicted Dr. Khalili-Borna’s opinion 7 that Plaintiff was impaired, though others did not. 8 310, 388, 437, 439, 441, 444, 638-54, 739-40.) 9 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 10 an opinion as to whether Plaintiff would still be disabled absent 11 substance abuse, the ALJ should have recontacted him and allowed him 12 to explain. On remand, he should do so. 13 14 15 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. 16 IT IS SO ORDERED. 17 DATED: October 30, 2013. 18 19 20 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 S:\PJW\Cases-Social Security\CAREY, 1178\Memo Opinion and Order.wpd 6

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