Opinion
No. CV 13-6146-PLA
07-15-2014
MARIA L. QUEVEDO, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
MEMORANDUM OPINION AND ORDER
I.
PROCEEDINGS
Plaintiff filed this action on August 26, 2013, seeking review of the Commissioner's denial of her application for Supplemental Security Income payments. The parties filed Consents to proceed before the undersigned Magistrate Judge on September 27, 2013, and November 1, 2013. Pursuant to the Court's Order, the parties filed a Joint Stipulation on May 13, 2014, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.
II.
BACKGROUND
Plaintiff was born on August 2, 1947. [Administrative Record ("AR") at 75-77.] She has a high school education [AR at 68, 167], and past work experience as, among other things, an accounts payable clerk. [AR at 46, 58, 68-69, 172-83.]
On February 11, 2011, plaintiff protectively filed an application for Supplemental Security Income payments, alleging that she has been unable to work since March 16, 2010. [AR at 40, 58, 137-43.] After her application was denied initially and upon reconsideration, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). [AR at 80-85, 89-95.] A hearing was held on August 16, 2012, at which time plaintiff appeared with counsel and testified on her own behalf. [AR at 52-72.] A vocational expert ("VE") also testified. [AR at 68-70.] On September 11, 2012, the ALJ issued a decision concluding that plaintiff was not disabled. [AR at 40-47.] Plaintiff requested review of the ALJ's decision by the Appeals Council. [AR at 31.] When the Appeals Council denied plaintiff's request for review on June 25, 2013, the ALJ's decision became the final decision of the Commissioner. [AR at 1-8]; see Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam). This action followed.
III.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010).
"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." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008) (internal quotation marks and citation omitted); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (same). When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); see Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.") (internal quotation marks and citation omitted). "Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld." Ryan, 528 F.3d at 1198 (internal quotation marks and citation omitted); see Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) ("If the evidence can support either affirming or reversing the ALJ's conclusion, [the reviewing court] may not substitute [its] judgment for that of the ALJ.").
IV.
THE EVALUATION OF DISABILITY
Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
A. THE FIVE-STEP EVALUATION PROCESS
The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient "residual functional capacity" to perform her past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie case of disability is established. The Commissioner then bears the burden of establishing that the claimant is not disabled, because she can perform other substantial gainful work available in the national economy. The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.
B. THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS
In this case, at step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since the date of her application, February 11, 2011. [AR at 42.] At step two, the ALJ concluded that plaintiff has the severe impairment of "degenerative joint disease of the lumbar and cervical spine." [Id.] At step three, the ALJ determined that plaintiff does not have an impairment or a combination of impairments that meets or medically equals any of the impairments in the Listings. [AR at 44.] The ALJ further found that plaintiff retained the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. § 416.967(b) , with certain limitations. Specifically, the ALJ determined:
See 20 C.F.R. pt. 404, subpt. P, app. 1.
RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). "Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant's residual functional capacity." Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007).
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities." 20 C.F.R. §§ 404.1567(b), 416.967(b).
[plaintiff] is able to lift or carry 20 pounds occasionally, 10 pounds frequently; can stand or walk for 6 hours in an 8-hour workday; can sit for 6 hours in an 8-hour workday; can push or pull on an unlimited basis; and has no postural, manipulative, visual, communication, environmental, or non-exertional limitations.[AR at 44-46.] At step four, based on plaintiff's RFC and the VE's testimony, the ALJ concluded that plaintiff is "capable of performing past relevant work as an accounts payable clerk." [AR at 46.] Accordingly, the ALJ determined that plaintiff was not disabled at any time since February 11, 2011. [AR at 46-47.]
V.
THE ALJ'S DECISION
Plaintiff contends that the ALJ: (1) failed to "properly consider[ ] the evidence of a mental impairment," and (2) erred in her assessment of plaintiff's credibility. [Joint Stipulation ("JS") at 4-8, 11-15, 19-20.] As set forth below, the Court agrees with plaintiff, in part, and remands the matter for further proceedings.
MEDICAL RECORDS/DEVELOPMENT OF THE RECORD
Plaintiff contends that the ALJ failed to properly consider the evidence of a mental impairment. [AR at 4-8, 11-12.] Specifically, plaintiff asserts that "the records before the ALJ were inadequate to assess the impact [of plaintiff's] mental impairments because [they] did not contain valid opinion evidence," and, as such, "[t]he ALJ had a "duty to develop the record from a mental standpoint." [JS at 7-8.]
A. Applicable Law
While plaintiff bears the burden of proving disability, the ALJ in a social security case has an independent, "'special duty to fully and fairly develop the record and to assure that the claimant's interests are considered.'" Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). This duty extends to the represented as well as to the unrepresented claimant. Smolen, 80 F.3d at 1288; see Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003). "The ALJ's duty to develop the record fully is also heightened where the claimant may be mentally ill and thus unable to protect her own interests." Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
As part of this duty, the ALJ has an obligation to take reasonable steps to ensure that issues and questions raised by medical evidence, particularly evidence from treating physicians, are addressed so that the disability determination is fairly made on a sufficient record of information, both favorable and unfavorable to the claimant. See Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1999); Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978); see also 42 U.S.C. § 421(h). The ALJ has a duty to "conduct an appropriate inquiry" if the evidence is ambiguous or inadequate to permit a proper evaluation of a claimant's impairments. Smolen, 80 F.3d at 1288; accord Tonapetyan, 242 F.3d at 1150. If evidence from a medical source is inadequate to determine if the claimant is disabled, an ALJ may be required to recontact the medical source, including a treating physician, to determine if additional needed information is readily available. See 20 C.F.R. §§ 404.1520b(c)(1), 416.920b(c)(1); see also Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) ("[t]he ALJ's duty to supplement a claimant's record is triggered by ambiguous evidence [or] the ALJ's own finding that the record is inadequate"). The responsibility to fulfill this duty belongs entirely to the ALJ; it is not part of the claimant's burden. White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001). The ALJ may "discharge this duty in several ways, including: subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record." Tonapetyan, 242 F.3d at 1150 (citing Tidwell, 161 F.3d at 602).
B. Evidence of Plaintiff's Mental Impairment
In a Psychiatric Review Technique completed on June 2, 2011 [AR at 301-11], state agency physician Dr. Paul Cherry reported that the medical evidence in the record did "not reveal the presence of a psychiatric impairment," and noted that a "[r]ecent exam [in February, 2011] did not diagnose a psychiatric impairment. It appears there is no psychiatric MDI [Medically Determinable Impairment]." [AR at 311.]
In a Physical Residual Functional Capacity Assessment completed on June 6, 2011 [AR at 289-95], state agency physician Dr. Nancy Armstrong reported that plaintiff could lift ten pounds frequently and twenty pounds occasionally, stand or walk about six hours in an eight-hour work day, and sit for about six hours in an eight-hour work day. [AR at 290.] Dr. Armstrong did not report that plaintiff had any postural, manipulative, visual, communicative, or environmental limitations. [AR at 291-93.]
In an intake form dated July 18, 2011, Olive View - UCLA Medical Center Registered Nurse I. Rodriguez indicated that plaintiff had depression, and prescribed Elavil to treat that condition. [AR at 642-43.] The same day, Nurse Rodriguez indicated that plaintiff was a "suicide risk," and gave her the Crisis Hotline information. [AR at 640.]
On August 22, 2011, plaintiff was referred to the mental health center at Olive View by Registered Nurse A. Mendoza. [AR at 636-37.]
Plaintiff was referred to mental health centers two more times by registered nurses at Olive View - UCLA Medical Center, in October and November of 2011. [See AR at 625 (October 26, 2011, plaintiff was referred to "MH" by Nurse Jae Cho), 621 (November 28, 2011, Nurse Corpus notes that plaintiff should call "MH").]
On September 20, 2011, plaintiff started therapy at Genesis Mental Health Center. [AR at 703-710.] In her Adult Initial Assessment, Advanced Social Worker Katie Weber reported that plaintiff could take care of her basic and instrumental activities of daily living but also assigned plaintiff a GAF score of 55 and diagnosed her with major depressive disorder, recurrent. [AR at 706, 710.]
A Global Assessment of Functioning ("GAF") score is the clinician's judgment of the individual's overall level of functioning. It is rated with respect only to psychological, social, and occupational functioning, without regard to impairments in functioning due to physical or environmental limitations. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV"), at 32 (4th ed. 2000). A GAF score in the range of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). DSM-IV, at 34.
In an intake form dated September 26, 2011, Olive View - UCLA Medical Center Registered Nurse E. Anas indicated that plaintiff still felt depressed, and started plaintiff on Zoloft. [AR at 631-32.]
Plaintiff attended counseling treatments approximately twice a month from September 2011 to July 2012. [AR at 703-44.] Progress notes indicate that plaintiff was in a depressed mood on multiple occasions. [AR at 744 (September 20, 2011, social worker noted that plaintiff was "sad, tearful"), 739 (October 4, 2011, social worker noted that plaintiff "feels alone"), 735 (October 19, 2011, social worker noted that plaintiff felt like she "look[ed] like a monster" and "began to cry"), 733 (November 30, 2011, social worker noted that plaintiff was "tearful and upset" and felt "scarred for life"), 727 (February 28, 2012, social worker noted that plaintiff feels "so lonely" and that she "ha[s] no one").] Although there was a period of about two months from late 2011 through early 2012 when plaintiff's affect seemed improved [see, e.g., AR at 728-31 (social worker described plaintiff as having a "pleasant mood" on January 11, 2012)], plaintiff again cried and expressed a negative affect during her June 20, 2012, and July 9, 2012, sessions, as little as one month before her ALJ hearing. [AR at 720 (June 20, 2012, social worker noted that plaintiff "presented [with] flat affect," her mood was "sad," and she "began to cry"), 719 (July 9, 2012, social worker noted that plaintiff was "in a depressed mood" and "[h]ad no motivation to do anything").]
C. The ALJ's Assessment of Plaintiff's Mental Impairment
In her decision, the ALJ assigned "limited weight" to Dr. Cherry's June, 2011 opinion that plaintiff had "no medically determinable mental impairment" [AR at 46; see AR at 301-11], because it "was formed before [plaintiff] sought mental health treatment." [AR at 46.] Instead, the ALJ "[gave plaintiff] the benefit of the doubt in finding she has a medically determinable mental impairment," but concluded that this impairment was not severe. [AR at 43, 46.] The ALJ found that plaintiff's mental impairment was not severe because it "[did] not cause more than minimal limitation in the claimant's ability to perform basic mental work activities." [AR at 43.] After finding that the record contains "fewer than twelve months of treatment by a social worker," and further finding "improvement in [plaintiff]'s mood and anxiety levels since late 2011," the ALJ concluded that plaintiff's RFC for light work "is supported by Dr. Armstrong's opinion." [Id.]
D. Analysis
Under the circumstances, the ALJ failed to fully and fairly develop the record of plaintiff's mental impairment for two reasons. First, the ALJ erred because plaintiff clearly established the presence of a mental impairment. When paired with an inadequate record, this "raised a suspicion" concerning plaintiff's alleged mental impairment. See Hilliard v. Barnhart, 442 F. Supp 2d 813, 817 (N.D. Cal. 2006) (citing Jones v. Bowen, 829 F.2d 524, 526 (5th Cir. 1987) ("claimant need only 'raise a suspicion' about his [mental] impairment in order to trigger the ALJ's duty to develop the record")); see also Plummer v. Apfel, 186 F.3d 422, 434 (3d Cir.1999) ("While the mere presence of a mental disturbance does not automatically indicate a severe disability, it cannot be ignored by the ALJ. . . . The ALJ has a duty to develop the record when there is a suggestion of mental impairment by inquiring into the present status of impairment and its possible effects on the claimant's ability to work.") (citations omitted)., Here, plaintiff alleged a mental impairment in her original request for benefits. [AR at 80-85, 166.] In July 2011, plaintiff reported feelings of depression, was prescribed Elavil, and was referred to a mental health treatment facility. Plaintiff was eventually diagnosed with a major depressive disorder at Genesis Mental Health Center. On September 26, 2011, plaintiff's use of Elavil was discontinued and she was started on Zoloft. In her Disability Report - Appeal, dated November 9, 2011, plaintiff requested evaluation by a state agency physician so that the Social Security Administration would be able to see the state she was in both mentally and physically. [AR at 207.] A suspicion regarding plaintiff's mental impairment was clearly raised in this case, triggering the ALJ's duty to develop the record.
Although, at step two, a claimant has the burden of establishing a mental or physical impairment, a claimant does not have to prove that he or she has a severe impairment in order to trigger the ALJ's duty to develop the record. Hilliard, 442 F. Supp. 2d at 817, 820. To the extent that defendant argues that "the ALJ was not obligated to order a consultative examination when [p]laintiff's own treatment notes failed to show any mental impairment . . . [and p]laintiff failed to carry her burden of demonstrating a severe mental disability" [JS at 10], defendant confuses the burden of proof at step two, which is on the claimant, with the separate duty of the ALJ to develop the record in the event of ambiguous or inadequate evidence. See id.
Once the ALJ's duty to develop the record is triggered, the ALJ can fulfill it in many ways, including by ordering a consultative examination. Smolen, 80 F.3d at 1288. A consultative examination may be required "when additional information needed is not contained in the evidence of your medical sources," or when "[t]here is an indication of a change in your condition that is likely to affect your ability to work, . . . but the current severity of your impairment is not established." 20 C.F.R. § 416.919a.
Second, the ALJ's duty to develop was "heightened" because there was evidence indicating the existence of a mental impairment. The ALJ nevertheless failed to make "every reasonable effort" to ensure that the record was sufficient. See 42 U.S.C. § 421(h); Perkins v. Astrue, 2009 WL 5066762 (C.D. Cal. Dec. 22, 2009) (citing Higbee v. Sullivan, 975 F.2d 558, 562 (9th Cir.1992)). The governing statute requires that, "[a]n initial determination . . . that an individual is not under a disability, in any case where there is evidence which indicates the existence of a mental impairment, shall be made only if the Commissioner of Social Security has made every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment." 42 U.S.C. § 421(h). Here, the effort made by the ALJ was insufficient because, although a qualified physician did review plaintiff's case from a mental standpoint, this review predated all of plaintiff's mental health treatment. [AR at 311]; see, e.g., Schultz v. Astrue, 362 F. App'x 634, 636 (9th Cir. 2010) (error for the ALJ to rely on a review by a state psychologist that preceded the onset of claimant's impairment because the ALJ's subsequent RFC assessment "did not account for any limitations [on functionality] posed by [plaintiff's] recognized mental impairments"). In addition, the ALJ's finding that plaintiff had no limitations in activities of daily living or social functioning, and mild limitations in concentration, persistence, and pace, was based solely on a Function Report that also predated plaintiff's mental health treatment. [AR at 43-44, 184-91.] Further, to the extent that the ALJ relied on plaintiff's therapy notes to support her finding of "improvement in the claimant's mood and anxiety levels since late 2011" [AR at 46], the ALJ ignores the later therapy notes that support an opposite conclusion. [See, e.g., AR at 719-20]; Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (an ALJ "cannot reach a conclusion first, and then attempt to justify it by ignoring competent evidence in the record that supports an opposite result"); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ is not permitted to reach a conclusion "simply by isolating a specific quantum of supporting evidence"). Finally, in November 2011, plaintiff requested reevaluation by a state agency physician, suggesting that she believed her record was incomplete. [AR at 207.] The ALJ did not grant plaintiff's request for a consultative examination, did not require a medical expert to be present at the hearing, and did not submit further questions to plaintiff's treating physicians. Any of these steps may have satisfied the ALJ's burden of making a reasonable effort to ensure that the residual functional capacity assessment was supported by the necessary evidence. See 42 U.S.C. § 421(h); 20 C.F.R. § 416.920b(c)(1); 20 C.F.R. § 416.929(b); [AR at 40-47.] Accordingly, remand is required to enable the ALJ to develop the record regarding plaintiff's mental condition and to assess whether, in light of the fully developed record, plaintiff is able to work.
As the ALJ's duty on remand to obtain a mental examination of plaintiff may have an impact on the credibility issue raised by plaintiff in the Joint Stipulation, the Court exercises its discretion not to address that issue in this Order.
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VI.
REMAND FOR FURTHER PROCEEDINGS
The Court has discretion to remand or reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. See Lingenfelter v. Astrue, 504 F.3d 1028, 1041 (9th Cir. 2007); Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). Where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 593-96.
Here, there are outstanding issues that must be resolved before a final determination can be made. However, in an effort to expedite these proceedings and to avoid any confusion or misunderstanding as to what the Court intends, the Court will set forth the scope of the remand proceedings. First, remand is warranted for the ALJ to order a mental examination of plaintiff. The ALJ is instructed on remand to then reevaluate, at step two, the severity of plaintiff's mental impairment in light of any evidence provided by the new examination. Second, the ALJ shall reassess plaintiff's credibility and proceed with the remainder of the five step analysis as required by the new evaluation.
VII.
CONCLUSION
IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further proceedings consistent with this Memorandum Opinion.
IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel.
This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis.
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PAUL L. ABRAMS
UNITED STATES MAGISTRATE JUDGE