Summary
denying motions for summary judgment when medical testimony relied on by ALJ was qualified and unsupported by medical records
Summary of this case from Moller v. AstrueOpinion
No C-00-0073 VRW
February 20, 2001
ORDER
Plaintiff, Sean Halasz, has filed this action under 42 U.S.C. § 405(g) seeking judicial review of defendant's denial of his application for disability and supplemental security income benefits. Before the court are the parties' cross-motions for summary judgment. For the reasons discussed below, the court DENIES the cross-motions for summary judgment and GRANTS plaintiff's motion for remand for further proceedings.
I
On September 3, 1992, and October 30, 1992, plaintiff filed applications for disability insurance benefits under Title II and XVI of the Social Security Act alleging inability to work as of April 30, 1991. Tr 110, 109. At the time, plaintiff was 32 years old and had a general equivalency degree (GED), as well as 2 years of vocational training. Plaintiff's previous work experience included operating a forklift. Defendant found plaintiff disabled due to alcoholism and adjustment disorder as of September 1, 1992, and benefit payments began on December 21, 1992, (the point of comparison).
Defendant subsequently conducted a continuing disability review and determined that plaintiff had regained the capacity to work by May 1, 1996. Tr 121. Plaintiff's disability status ceased as of May 1, 1996, and his benefit payments were terminated as of July 1, 1996. Id. At plaintiff's request, a hearing was held before a disability hearing officer on October 16, 1996. Tr 140. The hearing officer determined plaintiff's condition had improved and plaintiff was no longer disabled as of May 1, 1996. Tr 147. The hearing officer found that plaintiff had "no psychiatric and/or psychological restrictions" and also considered plaintiff's exertional limitations due to a back injury suffered after the previous disability evaluation. Tr 142. The hearing officer found that plaintiff could not return his past relevant work (PRW) as a laborer or a carpet layer, but concluded, relying on the Medical-Vocational Guidelines (Grids), that plaintiff could nevertheless engage in other types of medium work. Tr 145-47.
Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on November 4, 1997. Tr 57. The ALJ considered both exertional and nonexertional limitations and determined that plaintiff could return to his past relevant work as a "warehouseman/forklift driver" and found him not disabled as of May 1, 1996. Tr 22, 23. The ALJ's decision refers to the March 29, 1996, revision to the Social Security Act, which allows the Social Security Administration (Administration) to terminate a beneficiary's disability status unless his limitations are disabling independent of drug or alcohol use. Tr 16. The ALJ, however, made no finding regarding this issue.
On November 11, 1999, the Appeals Council denied plaintiff's request for review and the ALJ's decision became the final decision of the Administration. Tr 6. Plaintiff now seeks judicial review of the ALJ's decision that found him not disabled.
II A
The ALJ's decision to deny disability benefits will not be disturbed unless (1) the findings of fact are not supported by substantial evidence on the record or (2) the decision is based on a legal error. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir 1989). "Substantial evidence means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir 1995). The reviewing court must consider the record as a whole and review evidence both supporting and detracting the ALJ's decision. Desrosiers v. Secretary of Health Human Serv, 846 F.2d 573, 576 (9th Cir 1988). It is a well-settled role of the ALJ to make credibility determinations and to resolve conflicts in medical testimony. Andrews, 53 F.3d at 1039. If the evidence is "susceptible to more than one rational interpretation," the court will uphold the decision of the ALJ. Id at 1040. Nevertheless, a decision supported by substantial evidence must be set aside if improper legal standards were applied in reaching the decision. See Brawner v. Secretary of Health and Human Serv, 839 F.2d 432, 433 (9th Cir 1987).
B
To collect disability insurance under the Social Security Act, a claimant must establish that he suffers from a "disability." 42 U.S.C. § 423(a)(1)(D). "Disability" means "inability to engage in any substantial gainful activity [SGA] by reasons of any medically determinable physical or mental impairment * * * which has lasted and can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). Before the claimant's disability benefits may be terminated, substantial evidence must demonstrate that his impairment has medically improved. 42 U.S.C. § 423(f)(1). "Medical improvement" occurs when there is a decrease in medical severity based on improvement in the symptoms, signs and laboratory findings. 20 C.F.R. § 404.1594(b)(1). Disability benefits, however, may not be terminated unless substantial evidence also shows that any "medical improvement" is related to one's ability to work. 20 C.F.R. § 404.1594(b)(2). If the Administration finds that "medical improvement" has occurred and the improvement is related to the claimant's ability to work, then the Administration must consider his current impairments, including any new impairments, and determine whether he is precluded from substantial gainful activity. 20 C.F.R. § 404.1594(b)(5).
III
Plaintiff attacks the ALJ's decision denying him benefits. The ALJ concluded that plaintiff's mental health had improved and that plaintiff could return to his prior work as a forklift operator. Plaintiff asserts that the ALJ's decision should be overturned because the ALJ improperly rejected the lay testimony of plaintiff's mother and aunt and improperly rejected the opinion of plaintiff's treating physician, Dr Johnson.
At the hearing before the ALJ, plaintiff testified that he was unable to work because of mental impairments (panic attacks, anxiety, manic depression and attention deficit disorder) and exertional impairments (back and neck pain). The ALJ discredited plaintiff's testimony regarding his inability to perform work due to his back and neck pain. Plaintiff does not contest this finding.
In support of his continuing mental impairments, plaintiff offered Dr Alonzo Johnson's medical report dated October 20, 1997. This report indicated that plaintiff had adult attention deficit disorder, panic attacks and non-psychotic depression. Tr 404. Dr Johnson's October 1997 report further stated that plaintiff's adult attention deficit disorder diminished his ability to focus, concentrate and process information. Tr 404. Dr Johnson rated plaintiff's ability to carry out simple job instructions as "Poor or None." Id. Dr Johnson also stated:
[plaintiff's] adult attention deficit disorder severely affects his ability to adjust personally and socially. He cannot concentrate and maintain adequate attention to function in social environments. He becomes frustrated, angry and tends to eventually act out aggressively.
Tr 405. Dr Johnson rated plaintiff's ability to "Demonstrate Reliability" as "Poor or None." Id.
Plaintiff's mother, Marie Levey, testified in person to corroborate plaintiff's claim of mental disability. Levey described a number of plaintiff's behavioral problems that raised questions about his ability to work. Ms Levey stated that plaintiff "cannot follow directions. He takes directions and turns them into something other than a common sense thing." Tr 79-80. Levey noted that when plaintiff helped her at her bagel shop, he did not follow her directions and added garlic to biolis because he liked garlic. Tr 80. He cooked bagels more firmly than customers preferred and insisted that it was the right way to cook them. Id. Levey testified that plaintiff had a short attention span and often left bagels unattended, causing them to burn. Tr 83. Levey also indicated that plaintiff had tendency to exaggerate his ability to hold down a job and stay employed. Tr 81 ("[W]hat he says isn't always completely true. Not that he's lying. In his sense he believes this * * *."). According to Levey, plaintiff was always financially supported by his parents; he has never supported himself. Tr 82.
Phyllis Dzvileski, plaintiff's aunt and a nurse, submitted a declaration, which was offered as an exhibit at the hearing. Tr 411. Ms Dzvileski's declaration largely corroborates Ms Levey's testimony. Also in the record are mental treatment notes from Kaiser Permanente dated October 23, 1996, November 4, 1996, February 25, 1997, and February 26, 1997.
On the other hand, the ALJ also considered the psychological assessment of Dr Michael Backlund, who evaluated plaintiff on April 24, 1996. Dr Backlund interviewed plaintiff and administered a number of psychological tests including an intelligence test, a memory test, and a mental status examination. Dr Backlund concluded:
The claimant should be able to relate to others, including co-workers, supervisory personnel, and the general public in an appropriate manner. The claimant should be able to understand and follow instructions and should be able to maintain attention, concentration, pace, and persistence appropriate to the performance of one or two-step simple and repetitive tasks, and possibly detailed complex tasks. The claimant should be able to tolerate the usual stresses and pressures associated with day-to-day work activities, and should be able to manage changes in a routine work setting. In my judgment, he is capable of self-managing supplemental funds in his own best interests at the present time.
TR 302. Backlund had prefaced these conclusions with the following observations:
The claimant was alert and oriented to time, person, place, and situation. Judgment was fair. Ability to form abstract concepts was fair. Clinically, intellectual functioning appeared to be in the low average range. Short-term and long-term memory appeared grossly intact. Mood was normal. Affect was broad and appropriate to thought. Thinking was clear, logical and goal-directed. There were no hallucinations, delusions, or other peculiarities of thinking suggestive of psychosis. There were no indicators that the claimant was responding to internal stimuli. No motor difficulties were observed. Interpersonally, the claimant was generally cooperative, but had a rather overbearing and somewhat demanding style.
TR 300.
The ALJ relied heavily on Backlund's findings in his decision and determined that plaintiff was no longer disabled as of May 1, 1996. The ALJ made the following findings: (1) plaintiff was not engaged in substantial gainful activity; (2) plaintiff did not have an impairment or a combination of impairments that met or equaled the severity of the listed impairments; (3) there was medical improvement; (4) the medical improvement was related to plaintiff's ability to work; (5) back pain and affective disorder, though "severe," had only minimal impact on plaintiff's ability to work; and (6) plaintiff could return to his past relevant work as a forklift operator because it would not involve complex, technical, detailed work.
In attacking the ALJ's decision, plaintiff makes the following arguments. First, plaintiff argues that the ALJ erred because he failed to consider the testimony of lay witnesses that testified in plaintiff's favor. Second, plaintiff claims that Dr Johnson's opinion, despite the fact that it was dated October 20, 1997, was nevertheless relevant to the benefit cessation date of May 1, 1996. Finally, plaintiff contends that the ALJ committed a legal error because he did not consider Alonzo Johnson, MD, as plaintiff's treating physician and did not give his opinion greater weight than that of Michael Backlund, PhD, the Administration's examining physician.
A
Plaintiff contends that the ALJ erred in failing to consider the testimony of two lay witnesses (plaintiff's mother and aunt) that supported plaintiff's claim of disability. The court agrees. Lay testimony regarding a claimant's symptoms is competent evidence which the ALJ must take into account unless the ALJ expressly determines to disregard such testimony. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir 1996). In such a case, the ALJ must give reasons that are germane to each witness. Id.
The ALJ in this case neither expressly disregarded the lay testimony nor gave reasons germane to each witness. While the ALJ summarized plaintiff's mother's testimony, he did not give any reasons for rejecting it when he came to a conclusion contrary to that her testimony supported. The ALJ did not mention the testimony of plaintiff's aunt. Ninth Circuit case law is clear that this constitutes legal error because it violates 20 C.F.R. § 404.1513(e)(2). See Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir 1987).
B
Another question before the court is whether Dr Johnson's October 20, 1997, opinion is relevant to the benefit cessation date of May 1, 1996. The Appeal's Council, in declining to review the ALJ's decision, stated that Dr Johnson's medical assessment was irrelevant. Tr 6.
The Ninth Circuit took a directly contrary position in Smith v. Bowen, 849 F.2d 1222 (9th Cir 1988). It stated that "reports containing observations made after the period of disability are relevant to assess the claimant's disability." Smith, 849 F.2d at 1225. "Medical reports are inevitably rendered retrospectively and should not be disregarded solely on that basis." Id. The court, therefore, may consider Dr Johnson's opinion as relevant.
C
Plaintiff asserts that the ALJ should have afforded more weight to Dr Johnson's opinion concluding that plaintiff was disabled. Plaintiff argues that the ALJ should have treated Dr Johnson as a treating physician. The ALJ did not state that it considered Dr Johnson to be a treating physician and discredited his opinion for three reasons. First, the ALJ concluded that Johnson's testimony was tainted because of plaintiff's statement made to Dr Johnson during a visit: "she [plaintiff's counsel] wants me to see you more." Tr 20. The ALJ concluded that "[t]his statement implies that [Dr Johnson's] purpose is to generate evidence for this claim rather than to treat the patient." Id. The ALJ also observed that Dr Johnson's disability assessment was "based on [plaintiff's] self-reported history, not from any testing or long-term psychiatric treatment." Id. Finally, the ALJ erroneously stated that Dr Johnson's report was written on the basis of only one visit.
A "treating physician" is one who is employed to cure and has an opportunity to know and observe the patient as an individual. Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir 1987). Dr Johnson appears to fit that description: plaintiff was referred to Dr Johnson by West Oakland Mental Health Center; Dr Johnson had opportunities to make personal observations of plaintiff; Dr Johnson saw plaintiff six times and managed his prescription regimen over approximately six months. The Ninth Circuit has found a doctor to be a "treating physician" when the doctor prescribed drugs and saw the patient only twice in a 14-month period. Ghokassian v. Shalala, 41 F.3d 1300, 1303 (9th Cir 1994). The ALJ should have considered Dr Johnson as a treating physician.
The ALJ is not, however, compelled to accept the treating physician's opinion as conclusive. Magallanes, 881 F.2d at 751. If the opinion of the treating physician is contradicted by the is "deliberately attempting to mislead the ALJ for the purpose of helping claimant obtain benefits."); Morgan v. Commissioner of Social Security Admin, 169 F.3d 595, 602 (9th Cir 1999) (holding that a physician's opinion based on largely on claimant's own accounts of his symptoms may be rejected only if the plaintiff's testimony has been properly discounted). But the ALJ did not need to provide specific, legitimate reasons for his rejection of Johnson's opinion in this case. All that is required is that the ALJ's conclusion that plaintiff improved medically and was able to return to his past relevant work be supported by substantial evidence.
Several factors, however, militate against a finding that plaintiff improved and could return to his job as a forklift operator. First, Dr Backlund's opinion was qualified. Backlund did not have access to plaintiff's medical history records when he made his assessment. He was forced to rely solely on plaintiff's statements to him. Second, Dr Johnson's 1997 opinion directly contradicts Backlund's. Finally, the testimony from plaintiff's mother and aunt contradict Backlund's conclusions. Since this lay testimony potentially negates the existence of substantial evidence, defendant's harmless error argument with respect to the rejection of this testimony is unpersuasive.
Because the court has determined that the ALJ committed legal error when it rejected the lay testimony of plaintiff's mother and aunt without giving reasons for rejecting it, the court must remand this case to the ALJ for reconsideration. In light of this holding, the court declines to decide at this juncture whether the ALJ's acceptance of Backlund's conclusions was supported by opinion of a non-treating doctor, the opinion of a treating physician can be rejected for specific and legitimate reasons that are supported by the record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir 1995). Furthermore, if the contradictory medical opinion rests on independent clinical findings that differ from those of the treating physician, the ALJ may reject the treating physician's testimony without giving specific, legitimate reasons. In this situation, "it is solely the province of the ALJ to resolve the conflict." Id.
In reaching his conclusions, Dr Backlund relied on independent clinical findings that differ from those of the treating physician. Unlike Dr Johnson, Dr Backlund administered a number of psychological tests on plaintiff. Thus, the ALJ was free to credit Backlund's testimony over Johnson, in his discretion, as long as Backlund's conclusions are supported by substantial evidence.
The ALJ gave multiple reasons for rejecting Dr Johnson's opinion. Plaintiff argues that these reasons are not specific, legitimate reasons. The court agrees with this assessment. The ALJ's focus on counsel's role in encouraging plaintiff to seek treatment by Dr Johnson and the ALJ's argument that Johnson's opinion was based on self-reports could not withstand scrutiny under controlling Ninth Circuit authority. See Nguyen v. Chater, 100 F.3d 1462, 1464-65 (9th Cir 1996) (holding that the fact that the examination was conducted at the request of an attorney is irrelevant unless a physician's "wholly conclusory opinion [is] unsupported by any objective medical findings, personal observations or test reports" or there is evidence that a physician substantial evidence.
For the foregoing reasons, the court DENIES defendant's motion for summary judgment (Doc #15), DENIES plaintiff's motion for summary judgment (Doc #10) and GRANTS plaintiff's motion for remand (Doc #10).