Nay v. Astrue
Filing
19
MEMORANDUM DECISION AND ORDER Plaintiff's Petition for Review (Dkt. 1 ) is GRANTED. This action shall be REMANDED to the Commissioner for further proceedings consistent with this opinion. This Remand shall be considered a sentence four remand, consistent with 42 U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
VAUGHNA D. NAY,
Petitioner,
Case No. 4:10-cv-00099-CWD
v.
MEMORANDUM DECISION AND
ORDER
MICHAEL J. ASTRUE,
Commissioner of Social Security
Administration,
Respondent.
INTRODUCTION
Currently pending before the Court for its consideration is Petitioner Vaughna D.
Nay’s Petition for Review (Dkt. 1) of the Respondent’s denial of social security benefits
filed on February 21, 2010. The Court has reviewed the Petition for Review and the
Answer, the parties’ memoranda, and the administrative record (“AR”), and for the
reasons that follow, will remand to the Commissioner with instructions.
PROCEDURAL AND FACTUAL HISTORY
Petitioner filed an application for Disability Insurance Benefits and Supplemental
Security Income on August 12, 2004, alleging disability due to knee pain, gastrointestinal
MEMORANDUM DECISION AND ORDER - 1
pain, heart problems, and bipolar or schizoaffective disorder. This application was denied
initially and on reconsideration, and a hearing was held on August 6, 2007, before
Administrative Law Judge (“ALJ”) Michael Kennett. After hearing testimony from
Petitioner and vocational expert Kenneth Lister, ALJ Kennett issued a decision finding
Petitioner not disabled on November 1, 2007. Petitioner timely requested review by the
Appeals Council, which denied her request for review on January 25, 2010.
Petitioner appealed this final decision to the Court. The Court has jurisdiction to
review the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
At the time of the hearing, Petitioner was forty-four years of age. Petitioner
completed high school, and her prior work experience includes work as a cashier,
bartender, and lab technician.
SEQUENTIAL PROCESS
The Commissioner follows a five-step sequential evaluation for determining
whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, it must
be determined whether the claimant is engaged in substantially gainful activity. The ALJ
found Petitioner had not engaged in substantial gainful activity since her alleged onset
date of May 27, 2004. At step two, it must be determined whether the claimant suffers
from a severe impairment. The ALJ found Petitioner’s schizoaffective disorder severe
within the meaning of the Regulations.
Step three asks whether a claimant’s impairments meet or equal a listed
MEMORANDUM DECISION AND ORDER - 2
impairment. The ALJ found that Petitioner’s impairments did not meet or equal the
criteria for the listed impairments, specifically Listing 12.04 regarding affective disorders.
If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess
the claimant’s residual functional capacity (“RFC”) and determine at step four whether
the claimant has demonstrated an inability to perform past relevant work.
The ALJ found Petitioner retained the RFC to perform her past relevant work as a
cashier. Therefore, the ALJ did not proceed to step five.
STANDARD OF REVIEW
Petitioner bears the burden of showing that disability benefits are proper because
of the inability “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which . . . has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see
also 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Fitch, 438 F.2d 920, 921 (9th Cir. 1971).
An individual will be determined to be disabled only if her physical or mental
impairments are of such severity that she not only cannot do her previous work but is
unable, considering her age, education, and work experience, to engage in any other kind
of substantial gainful work which exists in the national economy. 42 U.S.C. §
423(d)(2)(A).
On review, the Court is instructed to uphold the decision of the Commissioner if
the decision is supported by substantial evidence and is not the product of legal error. 42
MEMORANDUM DECISION AND ORDER - 3
U.S.C. § 405(g); Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474
(1951); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v.
Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla but less than
a preponderance, Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997), and “does not
mean a large or considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552,
565 (1988).
The Court cannot disturb the Commissioner’s findings if they are supported by
substantial evidence, even though other evidence may exist that supports the petitioner’s
claims. 42 U.S.C. § 405(g); Flaten v. Sec’y of Health and Human Servs., 44 F.3d 1453,
1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by
substantial evidence, will be conclusive. Flaten, 44 F.3d at 1457. It is well-settled that, if
there is substantial evidence to support the decision of the Commissioner, the decision
must be upheld even when the evidence can reasonably support either affirming or
reversing the Commissioner’s decision, because the Court “may not substitute [its]
judgment for that of the Commissioner.” Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th
Cir. 1999).
When reviewing a case under the substantial evidence standard, the Court may
question an ALJ’s credibility assessment of a witness’s testimony; however, an ALJ’s
MEMORANDUM DECISION AND ORDER - 4
credibility assessment is entitled to great weight, and the ALJ may disregard self-serving
statements. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Where the ALJ
makes a careful consideration of subjective complaints but provides adequate reasons for
rejecting them, the ALJ’s well-settled role as the judge of credibility will be upheld as
based on substantial evidence. Matthews v. Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993).
DISCUSSION
Petitioner believes the ALJ erred at steps three and four. Specifically, Petitioner
contends that the ALJ did not properly evaluate all of the relevant criteria of Listing
12.04. Second, Petitioner argues that the ALJ did not provide specific and legitimate
reasons for rejecting the opinions of Petitioner’s treating physicians and therapists, and
that there was not substantial evidence in the record to support the ALJ’s decision to rely
upon the opinion of the state agency examining physician. Finally, Petitioner argues that
the ALJ’s RFC analysis did not include all of Petitioner’s limitations, specifically her
physical limitations caused by her knee and foot pain.
Respondent argues that the ALJ did not err, because the ALJ properly determined
the evidence did not support a finding that Petitioner’s impairments met the requirements
for Listing 12.04, because she did not have episodes of decompensation as defined by the
rule. Second, Petitioner contends that the ALJ properly gave more weight to the medical
opinions of the state agency examining physician than to Petitioner’s treating physician.
And finally, Respondent contends that the ALJ properly considered all of Petitioner’s
MEMORANDUM DECISION AND ORDER - 5
limitations that were supported by substantial evidence in the record when making his
RFC determination and finding that Petitioner could perform her past work as a cashier.
In this case, the Court will first consider the physician testimony before it
examines the allegation of error at step three, because the physician testimony directly
bears upon factors inherent in determining whether Petitioner’s mental health condition
meets Listing 12.04.
1.
Physician Testimony
Ninth Circuit cases distinguish among the opinions of three types of physicians:
(1) those who treat the claimant (treating physicians); (2) those who examine but do not
treat the claimant (examining physicians); and (3) those who neither examine nor treat the
claimant (nonexamining physicians). Lester v. Chatter, 81 F.3d 821, 830 (9th Cir. 1995).
Generally, more weight is accorded to the opinion of a treating source than to nontreating
physicians. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987). In turn, an examining
physician’s opinion is entitled to greater weight than the opinion of a nonexamining
physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir.1990); Gallant v. Heckler, 753
F.2d 1450 (9th Cir.1984).
If the treating physician’s opinion is not contradicted by another doctor, it may be
rejected only for “clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396
(9th Cir.1991). If the treating doctor’s opinion is contradicted by another doctor, the
Commissioner may not reject the treating physician’s opinion without providing “specific
MEMORANDUM DECISION AND ORDER - 6
and legitimate reasons” supported by substantial evidence in the record for so doing.
Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983).
An ALJ is not required to accept an opinion of a treating physician if it is
conclusory and not supported by clinical findings. Matney ex rel. Matney v. Sullivan, 981
F.2d 1016, 1019 (9th Cir. 1992). Additionally, an ALJ is not bound to a physician’s
opinion of a petitioner’s physical condition or the ultimate issue of disability. Magallanes
v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). If the record as a whole does not support
the physician’s opinion, the ALJ may reject that opinion. Batson v. Comm’r of Soc. Sec.
Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Items in the record that may not support the
physician’s opinion include clinical findings from examinations, conflicting medical
opinions, conflicting physician’s treatment notes, and the claimant’s daily activities. Id.;
Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005); Connett v. Barnhart, 340 F.3d 871
(9th Cir. 2003); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595 (9th Cir. 1999).
Reports of treating physicians submitted relative to Petitioner’s work-related
ability are persuasive evidence of a claimant’s disability due to pain and her inability to
engage in any form of gainful activity. Gallant v. Heckler, 753 F.3d 1450, 1454 (9th Cir.
1984). Although the ALJ is not bound by expert medical opinion on the issue of
disability, he must give clear and convincing reasons supported by substantial evidence
for rejecting such an opinion where it is uncontradicted. Bayliss v. Barnhart, 427 F.3d
1211, 1216 (9th Cir. 2005); Gallant, 753 F.2d at 1454 (citing Montijo v. Secretary of
MEMORANDUM DECISION AND ORDER - 7
Health & Human Services, 729 F.2d 599, 601 (9th Cir.1984); Rhodes v. Schweiker, 660
F.2d 722, 723 (9th Cir.1981)). Clear and convincing reasons must also be given to reject
a treating doctor’s ultimate conclusions concerning disability, especially when they are
not contradicted by another doctor. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).
Petitioner alleges disability beginning on May 27, 2004. (AR 61.) She had
undergone a Nissen Fundoplication surgery on December 10, 2002, (AR 186), and had
complications after the surgery consisting of pain, vomiting, and diarrhea. (AR 181 –
184.) An esophageal motility study performed on March 12, 2004, indicated abnormal
motility, and incomplete relaxation. (AR 181.) Numerous emergency room visits appear
in Petitioner’s medical records as well, wherein she complained of chest pain, but in
general all tests showed no abnormalities. On June 9, 2004, Petitioner’s cardiologist
referred her for a heart study because of her continuing complaints of chest pain absent
physical evidence of any disease process. The EKG performed was remarkable for the
presence of severe sinus bradycardia at 44 BPM, but was basically normal with an
abnormal intravenous adenosine/technetium. (AR 214.) An emergency room note on June
11, 2004, indicated Petitioner had been to the emergency room three times in the past
eight days complaining of chest pain, which pain was thought to be atypical. (AR 217,
223.) Health practitioners noted that Petitioner’s complaints of chest pain were likely
somatic in nature, as a result of her mental health condition. (AR 70F – 70J.)
Petitioner’s first hospitalization for mental health issues occurred on June 30,
MEMORANDUM DECISION AND ORDER - 8
2004. She presented to the emergency room earlier that day complaining of chest pain.
However, at 2:00 a.m. she was brought into the emergency room by police after she had
begun acting unusually. (AR 327). Petitioner became delusional, she was talking to
herself, and talking to people not present in the room. (AR 328.) The emergency room
physician diagnosed her status as acute psychosis, likely from bipolar disorder,
considering she was paranoid and delusional. (AR 328 – 329.) After six hours in the
emergency room, physicians transferred Petitioner to the University of Utah
neuropsychiatric institute, and she was committed against her will. (AR 329.) Upon
admission to the psychiatric hospital, Petitioner was noted to be paranoid and she refused
to answer questions, she had no awareness of her surroundings, and she demonstrated
paranoid and secretive behavior. (AR 332.) Petitioner was started on a course of Lithium,
and she began to show improvement. (AR 332.) It was noted that Petitioner had been
fired from her job at Wal-Mart because of her psychiatric difficulties. (AR 332.) On July
22, 2004, she was discharged from the psychiatric hospital.
On November 4, 2004, Petitioner established care with Dr. Blackham, an
osteopathic physician. (AR 433.) At that time, Dr. Blackham noted Petitioner was
suffering from depression and a heart condition, and he documented that she had recently
been discharged from the psychiatric hospital. (AR 433.) On December 2, 2004, Dr.
Blackham completed a residual function and mental health function questionnaire. On the
form, Dr. Blackham noted that, although Petitioner’s depression was stable on
MEMORANDUM DECISION AND ORDER - 9
medication, in his opinion he believed Petitioner would be absent from work more than
four times per month due to her ailments. (AR 418 – 19.) In addition, Dr. Blackham
indicated Petitioner suffered from bipolar disorder, had moderate limitations in several
key functional areas, including difficulties in maintaining social functioning, maintaining
concentration, persistence or pace, and that she had experienced repeated episodes of
decompensation. In Dr. Blackham’s opinion, Petitioner was suffering from a “residual
disease process that has resulted in such marginal adjustment that even a minimal increase
in mental demands or change in the environment would be predicated to cause [her] to
decompensate.” (AR 428 – 429.) On January 4, 2005, Dr. Blackham competed a
workplace functional ability report, again indicating Petitioner suffered from psychiatric
issues, heart problems, and diabetes, and that Petitioner was “presently unable to work.”
(AR 414 – 415.)
Petitioner experienced a second episode of psychotic behavior on May 2, 2006. On
that date, she was taken to the emergency room by police, where she exhibited bizarre
behavior including hallucinations. (AR 70R – 70V.) Petitioner was transferred to the Utah
psychiatric hospital and was involuntarily committed for inpatient psychiatric care. (AR
70R – 70V.) The records from her admission do not appear complete, but an emergency
room note on July 31, 2006, indicates Petitioner was discharged from the psychiatric
hospital on June 28, 2006. (AR 70K.) Treatment records from 2007 indicate Petitioner
remained on committed status so that she could continue to receive intensive therapy
MEMORANDUM DECISION AND ORDER - 10
services, and medication management. (AR 495.) Throughout 2007, treatment notes
indicate that, although Petitioner reported positive improvement in her symptoms, she met
several times a week for either group or individual therapy. (AR 70K, 70P, 493 – 505.)
On March 30, 2007, Petitioner’s medications were adjusted after she reported having
difficulty with her mother that translated into paranoia and auditory hallucinations. (AR
502.)
On May 8, 2007, Petitioner’s counselors, Chad Williams, CPCI, and Raun Child,
PA-C, were of the opinion that, without continued therapy, Petitioner becomes “quickly
overcome by her symptoms which leaves her unable to function in the community.” (AR
485.) On May 25, 2007, Williams reported that Petitioner was feeling “okay,” but still
required support and therefore she would remain on committed status. (AR 494.)
In April of 2007, it was noted that Petitioner was working as a bartender during the
evenings, but Petitioner’s earnings record does not indicate any income for 2007. (AR
103.) In 2006, she also had worked as a bartender, but the ALJ determined her earnings of
$2,081.00 for 2006 did not constitute substantial gainful activity. (AR 63, 534.)
Also in the record is a psychological evaluation conducted by Jonathan Ririe,
Ph.D., on June 27, 2005. Dr. Ririe met with Petitioner, and opined Petitioner did not
appear to be suffering from a psychotic disorder at all. (AR 361.) Dr. Ririe based his
opinion entirely on Petitioner’s reports. (AR 357 – 358.) During the interview, Petitioner
described her 2004 hospitalization, indicating she was there “for an evaluation,” and she
MEMORANDUM DECISION AND ORDER - 11
was diagnosed as bipolar “just from the information they got from people. Like
information from my ex-husband.” (AR 358.) During the interview, Petitioner “denied
experiencing hallucinations and delusions.” (AR 358.) When asked about symptoms of
anxiety, Petitioner indicated she had anxiety attacks “maybe four times since [she] got out
of the hospital” and that the anxiety does not interfere with her functioning. (AR 359.) In
Dr. Ririe’s opinion, Petitioner’s mental status had improved markedly after her discharge
from her hospitalization in 2004, because she had distanced herself from family members
and her diagnosis of bipolar disorder was based upon information from others. Therefore,
Dr. Ririe believed she was suffering from depressive disorder, not bipolar disorder, and
that her mental health condition was in remission. (AR 361.)
Based upon Dr. Ririe’s report, the ALJ determined that the mental health and
psychological evidence documented that Petitioner was doing well on her prescribed
medications, and “there was no evidence presented that indicated the claimant could not
work due to either physical and/or mental impairments.” (AR 67.) The ALJ rejected the
opinions of counselors1 Williams and Child, and gave “little weight” to treating physician
Dr. Blackham’s opinion of December 2, 2004, because the statements “were not
consistent with the findings of Dr. Ririe.” (AR 357.) The ALJ found the state agency
medical consultants’ opinions regarding Petitioner’s physical and mental condition
persuasive, because their findings were “consistent with the finding and opinion of Dr.
1
Counselors and therapists, while not considered acceptable medical sources, are
considered as other sources. Gomez v. Chater, 74 F.3d 967, 970 – 971 (9th Cir. 1996).
MEMORANDUM DECISION AND ORDER - 12
Ririe.” No other explanation was given for rejecting Dr. Blackham’s opinions or the
supporting opinions of Petitioner’s therapists.
The ALJ committed error. Considering Dr. Ririe’s opinions conflicted with Dr.
Blackham’s opinions, the ALJ could reject Dr. Blackham’s opinions by providing specific
and legitimate reasons supported by substantial evidence in the record. The ALJ’s only
proffered reason for rejecting Dr. Blackham’s opinion, and that of Petitioner’s other care
providers which lent support to Dr. Blackham’s opinion, was because the opinion
conflicted with Dr. Ririe’s opinion. The ALJ did not identify any other reason, specific,
legitimate, or otherwise, for the Court’s review.
The weight of the evidence provides little support for the ALJ’s rejection of Dr.
Blackham’s opinion, which in turn is buttressed by treating therapists’ opinions, that
Petitioner could not work due to her mental impairments.2 It is glaringly obvious that Dr.
Ririe did not examine Petitioner’s medical records. Petitioner described why she was
committed in 2004, stating it was for an “evaluation,” and that she was diagnosed as
bipolar based upon reports from others, including her ex-husband. However, the
emergency room report prior to her admission to the psychiatric hospital indicated police
brought her into the emergency room and several observers in the hospital noted she was
delusional, paranoid, and abusive. (AR 323 – 327.) During her stay at the University of
2
Had Dr. Blackham’s opinion been credited, according to the vocational expert,
Petitioner would have been precluded from all work due to the number of moderate limitations in
mental functioning and the predictable excessive monthly absences from work. (AR 547.)
MEMORANDUM DECISION AND ORDER - 13
Utah Neuropsychiatric Institute, the discharge summary indicated a course entirely
different than that described— Petitioner was admitted for acute psychosis, her treatment
course indicated that her initial treatment did not overcome observations of poor insight
and judgment, and she exhibited paranoia. (AR 332.)
Nor did Dr. Ririe note in his evaluation the numerous emergency room visits by
Petitioner throughout 2004, 2005, and later in 2006, sometimes twice in one day, for
complaints of chest pain with no etiological cause other than one EKG on June 16, 2004,
which noted sinus Bradycardia. (AR 312.) Physicians long suspected a somatic
component to Petitioner’s chest pain as a result of her mental health disorder. (AR 70F –
70J.)3 Dr. Ririe also did not have the benefit of Petitioner’s hospitalization records and
mental health treatment records from and after May 2, 2006, when Petitioner was
committed again for hallucinatory and psychotic behavior because she had stopped taking
her medications. (AR 70R – 70V.) Medication management, including assistance with
setting up her medications so that she would take them correctly (see AR 505), was an
important part of Petitioner’s treatment after her discharge on June 28, 2006. (See AR
501, noting that with medication, Petitioner denied visual or auditory hallucinations and
paranoia, but noted fatigue.)4 Petitioner remained on committed status so that she would
3
At the hearing, Petitioner testified she had been told by her physicians that her heart
problems were related to anxiety. (AR 541.) Petitioner testified that she seeks medical attention
at the hospital twice a month for anxiety related heart palpitations. (AR 541.)
4
There is other evidence in the record that Petitioner had difficulty managing her
medications, as she had called her physician’s office on June 14 and 15, 2004, because she had
MEMORANDUM DECISION AND ORDER - 14
continue to receive intensive therapeutic care several times each week.5
The ALJ failed to articulate why Dr. Ririe’s opinions from June of 2005, which
were largely based upon Petitioner’s own reports rather than the observations of her care
providers throughout 2004, 2005, and 2006, were more reliable than her treating
physician’s opinion, those of her counselors, and those of the emergency room physicians
who ordered involuntary inpatient admission to a psychiatric hospital. The Court therefore
finds that the ALJ committed error by failing to provide specific and legitimate reasons
supported by substantial evidence in the record for rejecting Dr. Blackham’s opinions.
2.
Meet or Equal a Listing
The ALJ found that Petitioner’s impairments did not meet or equal Listing 12.04.
Petitioner argues that the ALJ erred because he did not address either the A or C criteria,
and improperly relied upon Dr. Ririe’s opinion in addressing the B criteria. The Court
agrees.
If the claimant satisfies the criteria under a listing and meets the twelve month
duration requirement, the Commissioner must find the claimant disabled without
considering age, education and work experience. 20 C.F.R. § 404.1520(a)(4)(iii), (d). A
claimant bears the burden of producing medical evidence that establishes all of the
requisite medical findings that her impairments meet or equal any particular listing.
mixed up her pills and could not remember what she had taken. (AR 230.)
5
Petitioner informed the ALJ that she had been hospitalized for depression and anxiety
three times, and was still under commitment. (AR 543.)
MEMORANDUM DECISION AND ORDER - 15
Bowen v. Yuckert, 482 U.S 137, 146, n. 5 (1987). Further, if the claimant is alleging
equivalency to a listing, the claimant must proffer a theory, plausible or other, as to how
her combined impairments equal a listing. See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir.
2001).
Listing 12.00 encompasses a broad array of mental disorders.6 In the description of
how “severity” is measured, the appendix lists several functional limitations in areas of
daily activities as a guide for determining the severity of symptoms. Listing 12.00C.
These include activities of daily living, social functioning, concentration, persistence or
pace, and episodes of decompensation. The Listing gives descriptions and definitions for
each of the broad categories. However, each individual disorder has certain criteria.
Listing 12.04, at issue here, covers affective disorders “characterized by a
disturbance of mood, accompanied by a full or partial manic or depressive syndrome.
Mood refers to a prolonged emotion that colors the whole psychic life; it generally
involves either depression or elation.” To meet the required level of “severity,” the
requirements in both A and B, or A and C, must be satisfied. Paragraph C criteria are
assessed only if there is a finding that the paragraph B criteria are not satisfied. 20 C.F.R.
§ § 404, Subpt. P, App. 1, § 12.00(A), Mental Disorders.
The A and B criteria are defined as follows:
A. Medically documented persistence, either continuous or intermittent, of
one of the following:
6
Listed impairments are found at 20 C.F.R. § 404, Subpt. P, App. 1.
MEMORANDUM DECISION AND ORDER - 16
1. Depressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
I. Hallucinations, delusions, or paranoid thinking; or
2. Manic syndrome characterized by at least three of the following:
a. Hyperactivity; or
b. Pressure of speech; or
c. Flight of ideas; or
d. Inflated self-esteem; or
e. Decreased need for sleep; or
f. Easy distractibility; or
g. Involvement in activities that have a high probability of painful consequences which are
h. Hallucinations, delusions or paranoid thinking; or
3. Bipolar syndrome with a history of episodic periods manifested by the
full symptomatic picture of both manic and depressive syndromes (and
currently characterized by either or both syndromes);
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;
If the paragraph B criteria are not satisfied, the paragraph C criteria allows for a
claimant to meet the listing if there is a:
Medically documented history of a chronic affective disorder of at least 2
years' duration that has caused more than a minimal limitation of ability to
do basic work activities, with symptoms or signs currently attenuated by
medication or psychosocial support, and
one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment
MEMORANDUM DECISION AND ORDER - 17
that even a minimal increase in mental demands or change in the
environment would be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years' inability to function outside a highly
supportive living arrangement, with an indication of continued need for
such an arrangement.
See Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993) (“The required level of severity
for diagnosis 12.04 is met when the claimant’s impairment meets at least one paragraph A
criterion and at least two paragraph B criteria.”); 20 C.F.R. § 404, Subpt. P, App. 1,
12.00(A) (“We will assess the paragraph B criteria before we apply the paragraph C
criteria. We will assess the paragraph C criteria only if we find that the paragraph B
criteria are not satisfied.”).
As discussed above, the ALJ did not give any reason, let alone a specific,
legitimate reason based upon substantial evidence, for disregarding the diagnosis of
bipolar or schizoaffective disorder, depressed type, as well as acute periods of psychosis,
that Dr. Blackham and others who treated Petitioner in the emergency room and the
University of Utah hospital believed Petitioner suffered from. The ALJ failed to address
the paragraph A criteria in his analysis at all, and instead considered only the paragraph B
criteria. (AR 65 (“the undersigned has considered the four broad functional areas . . .
known as the ‘paragraph B’ criteria.”)). According to Dr. Blackham, Petitioner met the
paragraph A criteria, as he indicated Petitioner suffered from seven of the criteria in
12.04(A)(1), five of the criteria in 12.04(A)(2), and met the criteria for 12.04(A)(3). (AR
428). See Holohan v. Massanari, 246 F.3d 1195, 1203 (9th Cir. 2001) (a diagnosis of
MEMORANDUM DECISION AND ORDER - 18
mental impairment satisfies the paragraph A criteria).7
As for the paragraph B criteria, the ALJ erred. The ALJ largely relied upon the
progress notes from Petitioner’s hospitalization and continued treatment in 2006 and
2007, and Dr. Ririe’s evaluation, to support his findings that Petitioner had mild
limitations in activities of daily living, social functioning, and concentration, persistence,
or pace, and no episodes of decompensation. However, specific and probative evidence in
the record for the Court’s review undermines the ALJ’s findings.
In general, Petitioner reported improvement to her care providers. However, those
same care providers, Williams and Child, were of the opinion that, without continued
supervision, Petitioner would be unable to function. (AR 485). Petitioner remained on
committed status. And Dr. Blackham completed several functional reports, the first on
December 2, 2004, indicating Petitioner would miss work excessively and was unable to
work due to mental impairments (AR 418); the second listing moderate to marked
restrictions in the functional categories of paragraph B (AR 425); another on January 4,
2005, indicating Petitioner was unable to work (AR 414); and a final report on April 18,
2005, again determining Petitioner was unable to work (AR 406 – 408). In Dr.
Blackham’s opinion, Petitioner suffered from marked restrictions of activities of daily
7
Respondent argues that the ALJ’s failure to discuss the paragraph A criteria was
harmless, because the ALJ implicitly acknowledged that Petitioner was diagnosed with
schizoaffective disorder. (Respondent’s Brief at 10, Dkt. 17.) However, the ALJ does not explain
the inconsistency in his reliance upon that diagnosis, on the one hand, which was noted by Child
(AR 493), and Dr. Ririe’s opinion that Petitioner was not suffering from any psychotic disorder,
but rather depressive disorder that was in partial remission (AR 361).
MEMORANDUM DECISION AND ORDER - 19
living, and moderate episodes of decompensation of extended duration, meaning three
episodes within one year lasting for at least two weeks.
Crediting the testimony of Petitioner’s treating physician and her other care
providers would have led to a determination that Petitioner met the paragraph B criteria
and the requirements of the listing. Yet, the ALJ, while summarizing the evidence, failed
to discuss all of the probative evidence relevant to Petitioner’s mental impairment; how
he resolved the conflicts in this evidence; or how he resolved the conflicts between his
findings and the evidence presented by Petitioner’s care providers. The ALJ is required to
evaluate “all relevant evidence to obtain a longitudinal picture” of the Petitioner’s overall
degree of functional limitations. It is clear he did not do so, instead relying solely upon
Petitioner’s self reports to her treatment providers after her 2006 hospitalization and Dr.
Ririe’s evaluation prior to the 2006 hospitalization.
The 2006 and 2007 treatment notes indicate that, without careful medication
management and intensive therapy, Petitioner would not be expected to function. (see AR
70R – 70V, 70P, 485, 501, 502, 495, 494.) There were instances in the record indicating
that, without supervision, Petitioner failed to take her medication (AR 70R – 70V), and
required assistance with it (AR 70P). The ALJ failed also to assess Petitioner’s anxiety,
and resulting use of the emergency room on a frequent basis, as a component of her
mental disorder.
Finally, the ALJ stated that Petitioner “has experienced no episodes of
MEMORANDUM DECISION AND ORDER - 20
decompensation.” (AR 65.) But the ALJ, as discussed, failed to address Dr. Blackham’s
opinion that Petitioner experienced at least three episodes of decompensation. Nor did the
ALJ address Petitioner’s hospitalization in 2006. Respondent attempts to salvage the
ALJ’s conclusion by arguing that the record did not indicate how long Petitioner was
hospitalized, and that emergency room visits after her hospitalization were for matters
unrelated to her mental impairment. (Respondent’s Brief at 9, Dkt. 17.)
However, the record does indicate that Petitioner was hospitalized on May 2, 2006,
and discharged June 28, 2006, (AR 70R – 70V, 70K), a hospitalization that lasted almost
two months. Petitioner remained on committed status thereafter. An incident such as
hospitalization that “signals the need for a more structured psychological support system
would qualify as an episode of decompensation,” as would other scenarios such as
medical records showing a significant alteration in medication. Larson v. Astrue, 615 F.3d
744, 750 (7th Cir. 2010). As for her emergency room visits, while they are for chest pain,
physicians have noted that the etiology of the pain is unclear and they suspect it is somatic
in nature — in other words, it is related to her mental impairment. (AR 70F – 70J; 541.)
And finally, the ALJ failed to address the symptoms related to Petitioner’s medications
and her need to have them adjusted periodically. (AR 70P.)
Even if there was no error with respect to the ALJ’s assessment of the paragraph B
criteria, the ALJ failed to address the paragraph C criteria. Petitioner may meet either the
A and B, or the A and C, criteria. Holohan, 246 F.3d at 1203. In this case, if the ALJ was
MEMORANDUM DECISION AND ORDER - 21
of the opinion that Petitioner did not meet the paragraph B criteria, the ALJ failed to
explain why Petitioner’s documented history since her first hospitalization in 2004 for
paranoid, manic, and delusional behavior, which required a second hospitalization in
2006, and continued psychiatric care thereafter, does not meet the documented two year
durational requirement under paragraph C. Moreover, Petitioner testified she was fired
from her last job at Wal-Mart because of her 2004 hospitalization. (AR 333, 360.)
Treating physician Dr. Blackham opined that Petitioner suffered from a residual disease
process, and changes in demands or her environment would cause Petitioner to
decompensate. (AR 425 -- 428.) Treating therapists Williams and Childs agreed, and
Petitioner remained on committed status to receive continued therapy and medication
management. At the time of the hearing before the ALJ, Petitioner had been on
committed status since her discharge on June 28, 2006. The ALJ’s complete failure to
address these facts relative to the paragraph C criteria was error.
CONCLUSION
For the foregoing reasons, the Court finds that the ALJ committed error at step
three and four in the five step analysis. The ALJ failed to set forth specific and legitimate
reasons for rejecting the opinions of Petitioner’s treating physician, and those of other
witnesses, which included her therapists and the numerous emergency room physicians
who witnessed Petitioner’s psychotic behavior and anxiety attacks. In the absence of
specific reasons for disbelieving the treating physician, the ALJ’s decision is not
MEMORANDUM DECISION AND ORDER - 22
supported by substantial evidence. Dr. Ririe’s opinion, upon which the ALJ relied, was
not based upon a review of the entire record, including the record of Petitioner’s 2004 and
2006 hospitalizations.
Had Dr. Blackham’s opinion been credited, the vocational expert was of the
opinion that Petitioner would be precluded from all work. (AR 547.) Moreover, had the
opinion been credited, it is more than likely Petitioner would have been found to have met
Listing 12.04.
A remand is therefore appropriate so that specific findings regarding the treating
physician’s medical opinions can be developed, as well as consideration of the evidence
as a whole regarding whether Petitioner meets Listing 12.04.
MEMORANDUM DECISION AND ORDER - 23
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)
Plaintiff’s Petition for Review (Dkt. 1) is GRANTED.
2)
This action shall be REMANDED to the Commissioner for further
proceedings consistent with this opinion.
3)
This Remand shall be considered a “sentence four remand,” consistent with
42 U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir.
2002).
DATED: September 26, 2011
Honorable Candy W. Dale
Chief United States Magistrate Judge
MEMORANDUM DECISION AND ORDER - 24
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