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FOURSPRINGS v. BARNHART

United States District Court, S.D. California


November 10, 2005.

RICHARD FOURSPRINGS, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge

ORDER (1) GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; (2) DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; AND (3) REMANDING THE CASE FOR ADDITIONAL EVIDENCE AND FINDINGS.
INTRODUCTION
Plaintiff Richard Foursprings, through counsel, filed this action pursuant to the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of a "final decision" of the Commissioner of the Social Security Administration ("SSA"), denying his claim for disability insurance benefits. Before the Court is Plaintiff's Motion for Summary Judgment and Defendant's Cross Motion for Summary Judgment. After a thorough review of the pleadings filed by the parties, the entire record submitted in this matter, and for the reasons set forth below, this Court DENIES Defendant's Motion for Summary Judgment, GRANTS Plaintiff's Motion for Summary Judgment, and REMANDS for additional evidence and findings consistent with this Order. BACKGROUND

1. Factual Background

  Plaintiff was born May 5, 1940. A.R.*fn1 at 23. Although the record reflects that Plaintiff attended college and has sixteen years of education, he stated at the hearing before the Administrative Law Judge ("ALJ") that he could not remember if he attended college. A.R. at 24. His past relevant work was as a caretaker and general laborer. Id. Plaintiff alleges that he has been disabled since October 30, 1998, due to schizophrenia, diabetes, and fatigue. A.R. at 88.

  2. Procedural Background

  Plaintiff filed his current application for disability insurance benefits under Title II of the Social Security Act on February 5, 2001, which was denied initially and on reconsideration. A.R. 77-79, 58-61, 63-66. There was a hearing held by an Administrative Law Judge ("ALJ") on April 4, 2002. A.R. at 17-38. The ALJ issued a written decision denying benefits on May 9, 2002. A.R. at 8. On January 3, 2003, Plaintiff's request for appellate review was denied. A.R. at 4.

  Plaintiff, through counsel, filed the instant Complaint on February 7, 2003. [Doc. # 1.] Defendant filed an Answer and lodged the Administrative Record with the Court on May 25, 2004. [Doc. # 8-9.] Plaintiff's Motion for Summary Judgment was filed on March 21, 2005. [Doc. # 12.] Defendant's Opposition to Plaintiff's Motion for Summary Judgment and Cross-Motion for Summary Judgment was filed on May 17, 2005. [Doc. # 17-18.] See CivLR 7.1.

  3. The ALJ's Decision

  In a written decision, the ALJ found that Plaintiff's impairments were not severe because they did not impose more than minimal work-related limitations. A.R. at 12. The ALJ determined that Plaintiff had never been diagnosed with or treated for diabetes, although Plaintiff claimed to have the condition and claimed to control it with a special diet and daily afternoon naps. Id. The ALJ further found that Plaintiff had sought treatment for fatigue symptoms, but that there was no identifiable source of the Plaintiff's fatigue and no specific course of treatment for fatigue had been recommended. A.R. at 12-13. The ALJ noted that Plaintiff had complained of back pain and blackouts during one physical examination, but that the examination was found to be completely normal. A.R. at 13. Regarding Plaintiff's alleged psychiatric problems, the ALJ reviewed conflicting medical opinions, but concluded that all of Plaintiff's impairments, individually or in combination, did not result in more than minimal work-related limitations. A.R. 13-14. The ALJ determined that Plaintiff was not disabled at step two of the five step sequential process for evaluating whether a person is disabled under the Social Security Act, and therefore not entitled to disability benefits at any time through the date of the ALJ's decision. A.R. at 15.

  DISCUSSION

  1. Standard of Review

  To qualify for disability benefits under the Social Security Act, an applicant must show that: (1) he suffers from a medically determinable impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months; and (2) the impairment renders the applicant incapable of performing the work that he previously performed or any other substantially gainful employment that exists in the national economy. See 42 U.S.C. § 423(d)(1)(A), (2)(A). An applicant must meet both requirements to be "disabled." Id.

  The Secretary of the Social Security Administration has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step one determines whether the claimant is engaged in "substantial gainful activity." If he is, disability benefits are denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If he is not, the decision maker proceeds to step two, which determines whether the claimant has a medically severe impairment or combination of impairments.

  The inquiry at step two of the disability evaluation process, whether the claimant has a medically severe impairment or combination of impairments, is a de minimis screening device to dispose of groundless claims. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996), citing Browen v. Yuckert, 482 U.S. 137, 153-54. "An impairment or combination of impairments can be found not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work." Id. (internal citations omitted). "An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521(a). "[B]asic work activities [include] the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b). Physical examples include walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, handling, seeing, hearing, and speaking. 20 C.F.R. § 404.1521(b)(1)-(2). Mental examples include understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers and usual work situations; and dealing with changes in a routine work setting. 20 C.F.R. § 404.1521(b)(3)-(6).

  If at step two it is determined that the claimant does not have a severe impairment or combination of impairments, the disability claim is denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the impairment is severe, the evaluation proceeds to the third step, which determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 416.920(d); 20 C.F.R. Part 404, Appendix 1 to Subpart P. If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If a condition "falls short of the [listing] criterion" a multiple factor analysis is appropriate. Celaya v. Halter, 332 F.3d 1177, 1181 (9th Cir. 2003). In such analysis, "the Commissioner of Social Security shall consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity." 42 U.S.C. § 423(d)(2)(B).

  If the impairment is not one that is conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents the claimant from performing work he has performed in the past. If the claimant is able to perform his previous work, he is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant cannot perform his previous work, the fifth and final step of the process determines whether he is able to perform other work in the national economy considering his age, education, and work experience. The claimant is entitled to disability benefits only if he is not able to perform other work. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

  Section 405(g) of the Act allows unsuccessful applicants to seek judicial review of a final agency decision of the Commissioner. 42 U.S.C. § 405(g). The scope of judicial review is limited. The Commissioner's denial of benefits "will be disturbed only if it is not supported by substantial evidence or is based on legal error." Brawner v. Secretary of Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 1988), citing Green v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986).

  Substantial evidence means "more than a mere scintilla" but less than a preponderance. Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted). "[I]t is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id., quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The court must consider the record as a whole, weighing both the evidence that supports and detracts from the Commissioner's conclusions. Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988), citing Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). If the evidence supports more than one rational interpretation, the court must uphold the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984), citing Allen v. Secretary of Health & Human Servs., 726 F.2d 1470, 1473 (9th Cir. 1984). When the evidence is inconclusive, "questions of credibility and resolution of conflicts in the testimony are functions solely of the [Commissioner]." Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).

  Even if the reviewing court finds that substantial evidence supports the ALJ's conclusions, the court must set aside the decision if the ALJ failed to apply the proper legal standards in weighing the evidence and reaching a decision. See Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978). Section 405(g) permits a court to enter a judgment affirming, modifying, or reversing the Commissioner's decision. 42 U.S.C. § 405(g). The reviewing court may also remand the matter to the Social Security Administrator for further proceedings. Id. "If additional proceedings can remedy defects in the original administrative proceeding, a social security case should be remanded." Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990), quoting Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981).

  2. Analysis

  Plaintiff moves for Summary Judgment on two grounds: (A) the ALJ's finding regarding Plaintiff's mental impairment is not supported by substantial evidence; and (B) the ALJ committed legal error by failing to apply the correct legal standard in weighing the medical evidence and resolving material conflicts. Plaintiff's Motion at 6-7. Defendant's cross Motion for Summary Judgment contends that the ALJ's finding at step two is supported by substantial evidence and that the ALJ properly weighed the medical evidence. Defendant's Motion at 5-7.

  A. Substantial Evidence

  i. Alleged Physical Impairments

  The ALJ first determined that Plaintiff had never been diagnosed with or treated for diabetes, and therefore Plaintiff's alleged diabetes was not a medically severe impairment. A.R. at 12. For example, although Plaintiff told an evaluating physician, Dr. Shahin Keramati, on September 11, 2001, that he has had diabetes all of his life, Dr. Keramati determined that Plaintiff had never been diagnosed with diabetes by medical personnel, did not take any medication for diabetes and did not check his blood sugar. A.R. at 205. At Plaintiff's hearing before the ALJ, Plaintiff claimed to control his diabetes with a very careful diet that avoids sugar. A.R. 26-28. Plaintiff also expressed distrust of conventional medical care and admitted to not taking diabetes medication. Id. Because the record shows that Plaintiff was never diagnosed with diabetes, was not testing his blood sugar, and was not taking diabetes medication, this Court agrees with the ALJ's determination, and finds that substantial evidence supports the ALJ's conclusion regarding Plaintiff's alleged diabetes.

  The ALJ next found that although Plaintiff had sought treatment for fatigue, back pain and blackouts, none of these impairments constituted a medically severe impairment. A.R. at 12-13, 15. The record shows Plaintiff was treated at the Veterans Administration Medical Center ("VA") between September of 1998 and September of 1999, primarily for complaints of fatigue and back pain. However, there was no identifiable source of Plaintiff's fatigue and no specific course of treatment for his fatigue was recommended. A.R. 145, 149, 151. A VA treating doctor at the time did question whether depression or chronic obstructive pulmonary disease (COPD) might be the source of Plaintiff's fatigue. A.R. at 151. On May 5, 2001, Plaintiff underwent a comprehensive medical exam with examining physician Dr. Babak Pezeshki, which was ordered by the Social Security Administration. A.R. at 176. At the exam, Plaintiff's primary complaints were back pain and blackouts, and he also complained of bumping into objects without meaning to. Id. Dr. Pezeshki concluded that Plaintiff's back pain was likely common back strain, and no etiology for the blackouts or bumping into objects was determined from the exam. A.R. at 179. Dr. Pezeshki further concluded that to determine the cause of the blackouts further testing would be required, and hypothesized that Plaintiff's poor vision may have been a reason for him bumping into objects. Id. Dr. Pezeshki found Plaintiff's vision to be 20/200 in each eye without lenses, and Plaintiff did not bring his glasses to the exam. A.R. at 177. Overall, Dr. Pezeshki concluded that Plaintiff had no physical limitations. A.R. at 180.

  The ALJ found Plaintiff has the physical impairments of fatigue and back pain, but found these impairments do not limit his ability to perform basic work-related activities, and therefore these impairments were not severe. A.R. at 15. The ALJ did not make any specific findings regarding Plaintiff's alleged blackouts or bumping into objects. A.R. at 13-15. The Court finds the ALJ's determinations regarding Plaintiff's fatigue and back pain are supported by substantial evidence, however, the ALJ erred by failing to make specific findings with respect to Plaintiff's alleged blackouts and bumping into objects. On remand, Plaintiff's alleged fatigue, back pain, blackouts and bumping into objects should be reviewed, after complete vision and medical testing, to determine the reason for Plaintiff's blackouts and bumping into objects, and to determine whether Plaintiff has a medically severe impairment or combination of impairments, as required at step two of the disability evaluation process. See 42 U.S.C. § 423(d)(2)(B).

  ii. Alleged Psychiatric Impairments

  Regarding Plaintiff's alleged psychiatric impairments, the ALJ reviewed the conflicting evidence in the form of medical opinions from several doctors, but concluded that Plaintiff's alleged psychiatric problems, individually or in combination, did not result in more than minimal work-related limitations. A.R. 13-14. In light of the record as a whole, including the conflicting medical records and the transcript, this Court finds that there was not sufficient evidence to support the ALJ's conclusion that Plaintiff had no severe psychiatric impairment.

  Plaintiff's medical records show that Plaintiff likely has a "severe" psychiatric impairment under step two of the five step disability evaluation process. Examining physician Dr. Pezeshki, on May 5, 2001, performed an internal medical evaluation and noted that Plaintiff was very talkative and at times his speech seemed pressured and circumferential. A.R. at 177. Examining physician board-certified psychiatrist Dr. Richard Hicks completed a comprehensive psychiatric evaluation of Plaintiff on May 15, 2001, and concluded that he has "schizoaffective disorder with manic features, mild, and intermittent decompensation," with a Global Assessment of Functioning ("GAF")*fn2 score of "about 60 with moderate symptoms." A.R. at 185. Dr. Hicks reported that his examination of Plaintiff was "highlighted by . . . many voluntary statements of excessive detail, circumstantiality, and tangentiality, which are rather endless and have to be interrupted repeatedly." A.R. at 183. From a functional standpoint, Dr. Hicks found that although Plaintiff was capable of simple repetitive tasks, he was limited in his ability to work with the public and co-workers because of his garrulousness. A.R. at 185. Similarly, Dr. Ed O'Malley, the state agency psychiatrist reviewer, a non-examining physician, on May 25, 2001, found that Plaintiff was moderately limited in his ability to understand and remember detailed instructions, to carry out detailed instructions, and to interact appropriately with the general public. A.R. at 201-203. Dr. O'Malley concluded that Plaintiff could perform simple, repetitive tasks. Only one physician, examining physician board-certified psychiatrist Dr. H. Douglas Engelhorn, who examined Plaintiff on September 11, 2001, found Plaintiff free from any psychiatric impairments. A.R. at 210-212. Dr. Englehorn further found Plaintiff's GAF score was 80-85, and that Plaintiff exhibited no work limitations. Id. The ALJ chose to rely exclusively on the opinion of Dr. Engelhorn, even though Dr. Hicks, Dr. O'Malley and Dr. Pezeshki found indications of Plaintiff's alleged mental impairments. A.R. at 14-15.

  In addition, the Court has reviewed the transcript of the hearing with the ALJ on April 4, 2002, and finds that the prevailing medical testimony is supported by Plaintiff's testimony at the hearing. Throughout the transcript are examples of Plaintiff giving answers when questioned by the ALJ that reflect Plaintiff's confusion and his inability to respond appropriately to questioning. While the Plaintiff waived his right to representation, he first stated when he was informed that he had a right to an attorney "I had one but he kind of — I don't know where he is right now." A.R. at 19. When Plaintiff was asked if he completed 16 years of education, he stated "I can't remember now." A.R. at 24. When questioned further about his college education, his answer was non-responsive and he instead began discussing work he has done in hospitals, and the varying amounts of tips he received while working in the service industries, even though the ALJ was interrupting to attempt to end Plaintiff's narrative. A.R. at 24-25. When asked why he cannot work, Plaintiff stated: "I keep bumping into things and dropping things. . . . I fall down a few times. . . . I can't remember anything. I can't think. Everything just shuts down." A.R. at 26.

  When Plaintiff was asked about his alleged diabetes, he changed the topic to the death of his brother at about three years of age and the death of his sister at ten years of age. A.R. at 28-29. When Plaintiff was further asked why he is unable to work, he explained how in the 1940s through the 1970s he was thought to have TB and he is concerned about the cumulative effect of chest X-rays, which he claims split his cells, and it will be three years before his cells get back to normal. A.R. at 29-30. When Plaintiff was questioned about a real estate license that he apparently obtained in the 1960s but no longer has, Plaintiff indicated that he believes he worked on a corrupt real estate deal in the 1960s and that is why he "couldn't deal with" that line of work. A.R. at 31-32. When the ALJ was trying to finish up the hearing, Plaintiff continued with his narrative and discussed a number of irrelevant topics. A.R. at 33-37. When the ALJ made it clear the interview was over, Plaintiff stated "I'm a nervous wreck. I'm glad it's over." A.R. at 37.

  As previously discussed, the inquiry at step two of the disability evaluation process regarding whether the claimant has a medically severe impairment or combination of impairments is a de minimis screening device to dispose of groundless claims. Smolen, 80 F.3d at 1290. To find a lack of severity at step two, the abnormality must be slight and have no more than minimal effects on an individual's ability to work. Id. The Court finds that the transcript supports Dr. Pezeshki's observation that Plaintiff is very talkative with pressured and circumferential speech, and Dr. Hicks' observation that Plaintiff makes "many voluntary statements of excessive detail, circumstantiality, and tangentiality, which are rather endless and have to be interrupted repeatedly." A.R. at 177 & 183. Furthermore, Plaintiff's abnormalities were found to be more than slight and have more than a minimal effect on his ability to work. See Smolen, 80 F.3d at 1290. Dr. Hicks concluded Plaintiff has "schizoaffective disorder" with moderate symptoms and was limited in his ability to work with the public and co-workers because of his garrulousness. A.R. at 185. Dr. Ed O'Malley found that Plaintiff was moderately limited in his ability to understand and remember detailed instructions, to carry out detailed instructions, and to interact appropriately with the general public. A.R. at 201-203. In light of the transcript and the record as a whole, the Court finds that the ALJ's conclusion that Plaintiff does not have a medically sever impairment or combination of impairments is not supported by substantial evidence. B. Weighing Conflicting Medical Opinions

  As previously discussed, there were conflicting medical opinions regarding Plaintiff's alleged psychiatric problems. Dr. Pezeshki, during an internal medical evaluation, noted Plaintiff's speech seemed pressured and circumferential. A.R. at 177. Dr. Hicks completed a comprehensive psychiatric examination and evaluation of Plaintiff and concluded that he has schizoaffective disorder, but was capable of simple repetitive tasks, and was limited in his ability to work with the public and co-workers because of his garrulousness. A.R. at 185. Dr. O'Malley, the state agency psychiatrist reviewer, concluded that Plaintiff was moderately limited in his ability to understand and remember detailed instructions, to carry out detailed instructions, and to interact appropriately with the general public. A.R. at 201-203. In contrast, Dr. Engelhorn examined Plaintiff and found that Plaintiff exhibited no psychiatric diagnosis, that there was no evidence of any psychiatric disability, and that the Plaintiff exhibited no work limitations. A.R. at 210-212. It was Dr. Engelhorn's opinion that the ALJ decided to rely upon. A.R. at 14-15.

  The opinion of a treating physician is given special weight, because he is employed to cure, and has the opportunity to know and observe the patient over an extended period of time. Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). However, where the opinion of a treating physician conflicts with the opinion of an examining physician, the treating physician's opinion may be disregarded provided that the ALJ makes findings setting forth specific, legitimate reasons based on substantial evidence. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Moreover, to the extent that the examining physician's opinion is based on objective clinical tests, it constitutes substantial evidence. Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985).

  Here, there is a conflict between two examining doctors, Dr. Hicks and Dr. Engelhorn, rather than between a treating doctor and an examining doctor. Plaintiff does not allege a conflict between a treating doctor and an examining doctor (Plaintiff's Motion at 7-8), and the record does not reveal one. There is also a conflict between an examining doctor and a non-examining doctor, Dr. Englehorn and Dr. O'Malley respectively. "When a non-examining physician's opinion conflicts with that of an examining physician, a non-examining physicians' conclusion, with nothing more, does not constitute substantial evidence, particularly in view of the conflicting observations, opinions, and conclusions of an examining physician." Zamora v. Barnhart, 105 Fed.Appx. 893, 894-895 (9th Cir. 2004), citing Pitzer v. Sullivan, 908 F.2d 502, 506 n. 4 (9th Cir. 1990); see also Magallanes v. Bowan, 881 F.2d 747, 752 (9th Cir. 1989). Accordingly, the opinions of Dr. Hicks and Dr. Engelhorn are required to be given equal weight, but Dr. Engelhorn's opinion may be given more weight than Dr. O'Malley's.

  It was the ALJ's province to resolve the conflict between these opinions. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). However, the ALJ failed to explain why he gave more weight to Dr. Engelhorn's opinion than Dr. Hicks' opinion. A.R. at 13-15. Furthermore, because the ALJ summarized the medical and psychological evidence in a purely chronological order, he never explicitly compared the opinions of Dr. Engelhorn and Dr. Hicks. Id. The ALJ also failed to articulate any reason why Dr. Hicks' opinion should be given reduced weight compared to Dr. Engelhorn's. Id. Therefore, the ALJ never resolved the conflict, but simply chose to rely on Dr. Engelhorn's assessment that there was no evidence that Plaintiff had any psychiatric disability. Thus, the ALJ committed legal error by failing to properly weigh the conflicting medical opinions and failing to set forth specific legitimate reasons based on substantial evidence to support his conclusion. CONCLUSION AND ORDER

  For the reasons set forth above, and in consideration of the record as a whole, this Court finds that the ALJ's denial of Plaintiff's application for Social Security disability benefits at step two of the five step analysis was not supported by substantial evidence and contained legal error. This Court, therefore, GRANTS Plaintiff's Motion for Summary Judgment, DENIES Defendant's Cross-Motion for Summary Judgment, and REMANDS for additional evidence and findings consistent with this Order.

20051110

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