Castillo v. Colvin

Filing 23

ORDER by Judge Nandor J. Vadas granting 16 Motion for Summary Judgment; denying 21 Motion for Summary Judgment. (njvlc2, COURT STAFF) (Filed on 8/9/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 SARAH KIM SIU CASTILLO, Case No. 16-cv-01357-NJV Plaintiff, 9 ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT v. 10 11 NANCY A. BERRYHILL, Re: Dkt. Nos. 16, 21 United States District Court Northern District of California Defendant. 12 13 14 Plaintiff Sarah Kim Siu Castillo seeks judicial review of an administrative law judge 15 (“ALJ”) decision denying her application for disability insurance benefits and supplemental 16 security income under Titles II and XVI of the Social Security Act. Plaintiff‟s request for review 17 of the Administrative Law Judge‟s (“ALJ‟s”) unfavorable decision was denied by the Appeals 18 Council. The ALJ‟s decision is the “final decision” of the Commissioner of Social Security, 19 which this court may review. See 42 U.S.C. §§ 405(g), 1383(c)(3). Both parties have consented 20 to the jurisdiction of a magistrate judge. (Docs. 6 & 10). For the reasons stated below, the court 21 will grant Plaintiff‟s motion for summary judgment, and remand this action for further 22 proceedings. 23 24 LEGAL STANDARDS The Commissioner‟s findings “as to any fact, if supported by substantial evidence, shall be 25 conclusive.” 42 U.S.C. § 405(g). A district court has a limited scope of review and can only set 26 aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal 27 error. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Substantial 28 evidence is “more than a mere scintilla but less than a preponderance; it is such relevant evidence 1 as a reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. Chater, 108 2 F.3d 978, 979 (9th Cir. 1997). “In determining whether the Commissioner‟s findings are 3 supported by substantial evidence,” a district court must review the administrative record as a 4 whole, considering “both the evidence that supports and the evidence that detracts from the 5 Commissioner‟s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The 6 Commissioner‟s conclusion is upheld where evidence is susceptible to more than one rational 7 interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). SUMMARY OF THE MEDICAL EVIDENCE 8 9 10 Mental Impairments: Plaintiff was a special education student with a learning disability and a reading disorder, United States District Court Northern District of California 11 and suffers from a low IQ. (AR 551). The ALJ found that Plaintiff suffers the severe mental 12 impairments of borderline intellectual functioning and a bipolar disorder. Plaintiff also suffered 13 episodes of post-partum psychosis, which treating psychiatrist David Villasenor, M.D., described 14 as “no sleep, bizarre behavior, wandering, talking to herself, and hallucinations . . . which lasted 15 for a week at a time.” (AR 559). Plaintiff has been prescribed psychotropic medications including 16 Abilify. (AR 21). Dr. Villasenor opined that Plaintiff was fairly impaired and would not likely 17 work effectively. (AR 551). In May of 2013 a state agency non-examining psychologist opined 18 that Plaintiff could sustain concentration, persistence, and pace for simple tasks only and required 19 a setting with low social demands and public contact. (AR 22). 20 Physical Impairments: 21 Plaintiff suffers the severe physical impairments of post-partum cardiomyopathy, and 22 obesity. Plaintiff wears an external pacemaker that slows her heart rate (AR 20) after she suffered 23 cardiac arrest a few days after her son was born (AR 111). She was resuscitated at the scene by a 24 police officer. Id. A non-examining state agency doctor opined that Plaintiff could perform light 25 work. (AR 22). 26 27 28 THE FIVE STEP SEQUENTIAL ANALYSIS FOR DETERMINING DISABILITY A person filing a claim for social security disability benefits (“the claimant”) must show that she has the “inability to do any substantial gainful activity by reason of any medically 2 1 determinable physical or mental impairment” which has lasted or is expected to last for twelve or 2 more months. 20 C.F.R. §§ 416.920(a)(4)(ii), 416.909. The ALJ must consider all evidence in the 3 claimant's case record to determine disability (id. § 416.920(a)(3)), and must use a five-step 4 sequential evaluation to determine whether the claimant is disabled (id. § 416.920). “[T]he ALJ 5 has a special duty to fully and fairly develop the record and to assure that the claimant‟s interests 6 are considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). 7 8 9 Here, the ALJ evaluated Plaintiff's application for benefits under the required five-step sequential evaluation. AR 15-24. At Step One, the claimant bears the burden of showing she has not been engaged in “substantial gainful activity” since the alleged date the claimant became disabled. 20 C.F.R. 11 United States District Court Northern District of California 10 § 416.920(b). If the claimant has worked and the work is found to be substantial gainful activity, 12 the claimant will be found not disabled. Id. The ALJ found that Plaintiff had not engaged in 13 substantial gainful activity since her alleged onset date. AR 17. 14 At Step Two, the claimant bears the burden of showing that she has a medically severe 15 impairment or combination of impairments. 20 C.F.R. § 416.920(a)(4)(ii), (c). “An impairment is 16 not severe if it is merely „a slight abnormality (or combination of slight abnormalities) that has no 17 more than a minimal effect on the ability to do basic work activities.‟” Webb v. Barnhart, 433 F.3d 18 683, 686 (9th Cir. 2005) (quoting S.S.R. No. 96–3(p) (1996)). The ALJ found that Plaintiff 19 suffered the following severe impairments: post-partum cardiomyopathy, borderline intellectual 20 functioning, obesity, and bipolar disorder. AR 17. 21 At Step Three, the ALJ compares the claimant‟s impairments to the impairments listed in 22 appendix 1 to subpart P of part 404. See 20 C.F.R. § 416.920(a)(4)(iii), (d). The claimant bears 23 the burden of showing her impairments meet or equal an impairment in the listing. Id. If the 24 claimant is successful, a disability is presumed and benefits are awarded. Id. If the claimant is 25 unsuccessful, the ALJ assesses the claimant's residual functional capacity (“RFC”) and proceeds to 26 Step Four. Id. § 416.920(a)(4)(iv),(e). Here, the ALJ found that Plaintiff did not have an 27 impairment or combination of impairments that met or medically equaled one of the listed 28 impairments. AR 18. Next, the ALJ found that Plaintiff had the residual functional capacity to 3 1 perform light work with several exertional and non-exertional limiations. AR 19. At Step Four, the ALJ found that Plaintiff could not perform her past relevant work. AR 2 3 4 23. At Step Five, after consulting with a vocational expert, the ALJ found that there were a 5 significant number of jobs that Plaintiff could perform in the national economy. AR. 23. 6 Accordingly, the ALJ found that Plaintiff had “not been under a disability, as defined in the Social 7 Security Act,” through the relevant time period. AR 24. DISCUSSION 8 9 Plaintiff raises three challenges to the ALJ's decision, arguing that: (1) “[t]he ALJ committed harmful legal error by failing to properly analyze Listing 12.04 as required at Step 11 United States District Court Northern District of California 10 Three of the evaluation process;” (2) “[t]he ALJ committed harmful legal error by improperly 12 giving limited weight to the treating psychiatrist‟s opinion;” and (3) “[t]he ALJ committed 13 harmful legal error by failing to fairly and fully develop the medical record.” Pl.‟s Mot. (Doc. 16) 14 at 7, 12, & 16. 15 Plaintiff‟s claims are all interrelated in that the error Plaintiff alleges at Step Three relates 16 to the ALJ‟s consideration (or lack thereof) of treating physician Dr. Villasenor‟s opinion, the 17 error alleged when making the RFC determination is the improper discounting of that opinion, and 18 the failure to develop the record is in relation to the ALJ‟s failure to order a consultative 19 examination after rejecting Dr. Villasenor‟s opinion. Defendant defends the alleged errors by 20 arguing that the ALJ was not obligated to discuss Dr. Villasenor‟s opinion at Step Two because it 21 was an opinion that was later rejected and that because the rejection was proper, there was no need 22 to further develop the record. Thus, the court will decide the seminal issue, which is whether the 23 ALJ erred in the assignment of weight to Dr. Villasenor‟s opinion. 24 “„As a general rule, more weight should be given to the opinion of a treating source than to 25 the opinion of doctors who do not treat the claimant.‟” Garrison v. Colvin, 759 F.3d 995, 1012 26 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). Thus, an ALJ may 27 reject a treating source‟s opinion “only „by providing specific and legitimate reasons that are 28 supported by substantial evidence.‟” Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) 4 1 2 (quoting Garrison, 759 F.3d at 1012). The ALJ gave limited weight to the opinions of Dr. Villasenor. With regard to the mental impairment questionnaire prepared by Dr. Villasenor, the ALJ afforded the opinions limited 4 weight because “the [plaintiff] has been seen quarterly since March 2013 and the form was 5 completed on May 2014, indicating a total of no more than five visits at the time the form was 6 completed . . . The extreme limitations noted are not consistent with the evidence as discussed 7 herein. The form also states the [plaintiff] does not need ongoing therapy, inconsistent with the 8 opinion that she has extreme limitations, and is not suicidal . . . . It also notes side effects from 9 her medication that are not reflected in the treating records.” (AR 22). The court finds the ALJ‟s 10 treatment of Dr. Villasenor‟s opinions problematic for several, but not all, of the reasons advanced 11 United States District Court Northern District of California 3 by Plaintiff. 12 First, Plaintiff argues that the ALJ erred in assigning Dr. Villasenor‟s opinion less weight 13 based on the number of visits. As to this issue, Plaintiff acknowledges that “[t]here is no magic 14 number of visits required to establish a treatment relationship.” Pl.‟s Mot. (Doc. 16) n. 5. 15 However, the issue is not whether a treatment relationship had been established in this case, the 16 ALJ acknowledged that there was. Rather, it is the weight afforded the opinion based on the 17 number of visits. The frequency of examination is one of the factors an ALJ considers when 18 according weight to be given a treating physician when their opinion is not controlling. See § 19 404.1527(c)(2)–(6). Thus, the ALJ‟s consideration of the number of visits between Plaintiff and 20 Dr. Villasenor was proper. 21 Plaintiff next argues that the ALJ erred in assigning the two state agency non-examining 22 physicians‟ opinions controlling weight, above that of Dr. Villasenor‟s opinion. This argument 23 essentially goes to the ALJ‟s reasoning that Dr. Villasenor‟s opinions “are not consistent with the 24 evidence as discussed herein.” (AR 22). That evidence, “as discussed herein,” must be a 25 reference to the state agency physicians, as no other medical sources are discussed by the ALJ in 26 reference to mental capacity. The ALJ‟s lack of specificity as to what other evidence discussed 27 herein falls short of the requirement that the ALJ point to specific evidence. 28 Further, as Plaintiff points out, “[t]he state agency physicians‟ reports were prepared in 5 1 January 2013 and May 2013, prior to the October 24, 2013 and May 27, 2014 opinions from the 2 treating psychiatrist. (AR 22, 65-66, 89-92, 591-592, 659-663).” Pl.‟s Reply (Doc. 22) at 7. 3 Indeed, those non-examining opinions were prepared before the whole of the quarterly treatments 4 of Dr. Villasenor which began in March of 2013. To the extent then, that the opinions of the non- 5 examining physicians form the basis for the ALJ‟s “evidence discussed herein” as it relates to 6 mental impairments (and the court can find no other meaning of that term), the ALJ did error in 7 relying on those opinions to discount the treating physician. It is error for an ALJ to reject the 8 opinion of a treating physician in favor of the opinions of non-examining physicians, where their 9 opinions were not informed by the whole medical record, including more recent treatment notes and diagnoses. See e.g. Castellucci v. Colvin, No. C13-04450 LB, 2014 WL 4371424, at *19 11 United States District Court Northern District of California 10 (N.D. Cal. Sept. 3, 2014). 12 With regard to mental impairment assessment form completed by Dr. Villasenor in May of 13 2014, the ALJ stated that “the form also states the [plaintiff] does not need ongoing therapy, 14 [which is] inconsistent with the opinion that she has extreme limitations, and is not suicidal.” The 15 ALJ used this “inconsistency” as a basis for giving Dr. Villasenor‟s opinion little weight. Plaintiff 16 accurately reproduces this portion of the form as follows: 17 18 19 Does this patient also have therapy from a therapist supervised by you? Yes ___ No X_ If yes, who_______________ Starting date:____________ 20 Do you expect this patient to need ongoing therapy from the above referenced person? Yes ____ No X 21 (AR 659). 22 Pl.‟s Mot. (Doc. 16) at 15. Plaintiff also accurately points out that the plain meaning of the form is 23 that “Plaintiff does not need ongoing treatment from „the above referenced person.‟ (AR 659) Dr. 24 Villasenor answered no, because the question was „[d]o you expect this patient to need ongoing 25 therapy from the above referenced person?‟ And, there was no person referenced above. (AR 26 659).” Id. The ALJ‟s finding that the form was inconsistent on the basis that Dr. Villasenor 27 indicated that Plaintiff would not need ongoing therapy is not legitimate and not supported by 28 substantial evidence. 6 The final basis for the ALJ‟s rejection of Dr. Villasenor‟s opinion in favor of the non- 1 2 examining physicians was that Dr. Villasenor‟s notations of the side effects of Plaintiff‟s 3 medications were not reflected in the treatment record. Plaintiff points the court to Dr. 4 Villasenor‟s notation that he had reviewed Plaintiff‟s medical records and that those notes would 5 have included the side effects of fatigue as noted in December of 2012 (AR 614-15) and August of 6 2013 (AR 610). It is unclear as to whether or not those notes formed the basis of Dr. Villasenor‟s 7 opinion. It is equally unclear as to whether the ALJ was referring to Dr. Villasenor‟s treatment 8 record or the treatment record as a whole. In any event the court is not so concerned with this 9 finding by the ALJ as it is with the ALJ‟s overall finding as to Dr. Villasenor‟s opinion. Even assuming that the ALJ‟s rejection of Dr. Villasenor‟s opinion was proper, the ALJ‟s 10 United States District Court Northern District of California 11 reliance on the opinions of two non-examining physicians, neither of whom had the benefit of 12 reviewing the records of the treating physician, leaves the record devoid of a medical opinion 13 concerning the latest treatment of Plaintiff. This leads to Plaintiff‟s argument that the ALJ failed 14 to properly develop the record by ordering a consultative examination. The court agrees that with 15 the opinion of the treating physician discounted and reliance on non-examining opinions that do 16 not take the entire medical record into account the ALJ‟s opinion lacks substantial evidence. The 17 issue is further complicated by the ALJ‟s use of her rejection of Dr. Villasenor‟s opinion at Step 4 18 to exclude the opinion at the Step 3 determination. Accordingly, the court finds it appropriate to remand this matter to the ALJ for a proper 19 20 evaluation of Dr. Villasenor‟s opinion and to order a consultative examination if the ALJ deems it 21 necessary. 22 // 23 // 24 // 25 // 26 // 27 // 28 7 CONCLUSION 1 2 3 For the reasons stated above, the court GRANTS Plaintiff‟s motion for summary judgment and REMANDS this matter for further proceedings in accordance with this Order. 4 A separate judgment will issue. 5 IT IS SO ORDERED. 6 7 8 Dated: August 9, 2017 ______________________________________ NANDOR J. VADAS United States Magistrate Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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