United States District Court, S.D. California
December 29, 2005.
LLOYD YOST, Plaintiff,
JOANNE B. BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: RUBEN BROOKS, Magistrate Judge
REPORT AND RECOMMENDATION DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT [DOC. NO. 10] AND GRANTING DEFENDANT'S CROSS-MOTION FOR
SUMMARY JUDGMENT [DOC. NO. 12]
Plaintiff Lloyd Yost seeks judicial review of Social Security
Commissioner Jo Anne B. Barnhart's determination that he is not
entitled to disability benefits. On July 5, 2005, Yost filed his
Motion for Summary Judgment [doc. no. 10] and Memorandum of
Points and Authorities in Support of Motion [doc. no. 11],
requesting reversal of Administrative Law Judge ("ALJ") Peter
Valentino's September 19, 2003, finding that he was not disabled.
Plaintiff argues that the ALJ erred by failing to accord
controlling weight to the opinion of Yost's treating physicians.
(Pl.'s Mem. 17-21.) Plaintiff also argues Judge Valentino erred
in relying on the testimony of the medical expert to conclude
Yost could engage in substantial gainful activity because the expert,
an internist, did not express an opinion regarding Plaintiff's
depression. (Id. at 21-23.) Yost asks the Court to reverse the
ALJ's decision denying disability benefits or remand the case to
a different administrative law judge for further proceedings.
(Id. at 23.) Plaintiff also requests an award of attorney's
fees pursuant to the Equal Access to Justice Act ("EAJA"),
28 U.S.C.A. § 2412 (West 1994 & Supp. 2005). (Admin. R. at 23.)
On July 14, 2005, the Commissioner filed her Cross-Motion for
Summary Judgment [doc. no. 12] and Memorandum of Points and
Authorities in Support of Cross-Motion [doc. no. 13], arguing
that the findings of Judge Valentino should be affirmed because
they are supported by substantial record evidence. (Def.'s Mem.
The Court found the Motions for Summary Judgment suitable for
decision without oral argument and took the matter under
submission on September 13, 2005 [doc. no. 14]. See S.D. Cal.
Civ. L.R. 7.1(d) (1).
At the time of the ALJ's decision, Yost was fifty-nine years
old and qualified as a "person of advanced age." (Admin. R. at
19); 20 C.F.R. § 404.1563 (e) (2003). Plaintiff is currently
sixty-two. (Pl.'s Mem. 1.) Yost has a law degree and past
relevant work as in-house trial counsel for an insurance company.
(Id.; Admin. R. at 15.) He has not engaged in substantial
gainful employment since October 15, 2000. (Admin. R. at 15-16.)
Yost filed an application for disability insurance benefits on
August 24, 2001, claiming disability based on ulcerative colitis,
overactive bladder (frequent and uncontrollable urination and incontinence), chronic depression, and interstitial cystitis.
(Id. at 66, 89, 91.) The claim was denied on October 9, 2001.
(Id. at 24.) Plaintiff filed a request for reconsideration on
December 18, 2001; it was denied on January 9, 2002. (Id. at
28, 32.) Yost filed a timely request for an administrative
hearing on March 15, 2002. (Id. at 36.)
Judge Valentino conducted the hearing on July 8, 2003. (Id.
at 281.) Plaintiff was represented at the hearing by attorney
William Radar. (Id.) Dr. Arvin J. Klein, a medical expert
specializing in internal medicine and cardiology, testified
regarding Yost's physical condition. (Id. at 47, 314-18.)
Gloria Lasoff, M.A., a vocational expert, testified regarding
Plaintiff's ability to work. (Id. at 46, 318-23.) On September
19, 2003, the ALJ denied Yost's application for disability
benefits. (Id. at 12.) Plaintiff requested review of the
decision on November 7, 2003. (Id. at 9.) On January 16, 2004,
the Appeals Council denied his request for review. (Id. at 5.)
II. MEDICAL EVIDENCE
A. Physical Condition
The earliest medical evidence in the record relating to Yost's
claim for disability benefits is a letter dated August 21, 2000,
from Dr. Michael P. Guerena, to Plaintiff's referring doctor,
John R. Connolly.*fn1 (Id. at 189.) Dr. Guerena, a
urologist, saw Yost regarding worsening urinary frequency.
(Id.) He advised Plaintiff that if his symptoms did not improve
after taking Flomax for one month, he would recommend a cystoscopy. (Id.) Dr. Guerena also
noted that Yost complained of "what sounds like" irritable bowel
syndrome and potential peptic ulcer disease. (Id.)
On August 22, 2000, Plaintiff saw Dr. Connolly and reported
having "frequent loose stools and abdominal cramping for the last
month or so." (Id. at 150.) According to Dr. Connolly's notes,
Yost had no previous history of colitis, but his "wife ha[d] it."
(Id.) After diagnosing Plaintiff with hypertension,
degenerative disc disease of the lower back, depression,
insomnia, and colitis, Dr. Connolly recommended a barium enema
and a low residue diet. (Id.) Yost saw Dr. Connolly twice in
September before having the recommended barium enema, and he
continued to report diarrhea and urinary frequency. (Id. at
147-49.) Dr. Connolly continued to list colitis as his assessment
of Plaintiff's condition. (Id.)
On September 29, 2000, Yost returned to Dr. Guerena, who
advised Dr. Connolly that Plaintiff's urinary symptoms had not
improved and that Yost had been diagnosed with interstitial
cystitis. (Id. at 188.) Interstitial cystitis is a condition
resulting in recurring discomfort or pain in the bladder or
pelvic area characterized by an urgent need to urinate (urgency),
a frequent need to urinate (frequency), or a combination of these
symptoms. Interstitial Cystitis: A Bladder Disorder, http://
www.webmd.com/content/article/6/1680_51525.htm (last visited Nov.
29, 2005). Although there are no records of when or how the
interstitial cystitis diagnosis was made, the condition is not in
dispute. Judge Valentino accepted the diagnosis based on the
medical evidence of record. (Admin. R. at 16.) On October 4, 2000, Plaintiff's barium enema revealed
diverticulosis (a condition where diverticula pouch or sac
openings form in the intestine) without radiographic evidence
of diverticulitis (a condition where diverticula in the colon
become inflamed or infected). (Id. at 135); Stedman's Medical
Dictionary 513 (26th ed. 1995).
Yost continued to complain of the same colitis and cystitis
symptoms on his next visits with Dr. Connolly and Dr. Guerena.
(Admin. R. at 143, 146-47, 187.) The colitis was slightly
improved with Levsinex, but Plaintiff stopped taking that
medication some time at the end of 2000 "because it made his
mouth to [o] dry." (Id. at 146-47.) Yost also complained to Dr.
Guerena that none of the medications he had tried for his
cystitis had resulted in improvement. (Id. at 187.) Plaintiff
asked to try a medication called Detrol, and Dr. Guerena
prescribed it for him. (Id.)
Yost returned to Dr. Connolly and Dr. Guerena for treatment of
his ulcerative colitis and interstitial cystitis in October of
2001. (Id. at 165, 184.) Both doctors opined that these
conditions rendered Plaintiff unable to work as a trial attorney.
On October 3, 2001, Dr. Thu N. Do, a state agency doctor,
reviewed the record and opined that Yost could perform a range of
light work activity. (Id. at 155-62.)
Plaintiff continued reporting urinary urgency and frequency in
November of 2001, and he experienced minimal improvement while on
Ditropan, a drug prescribed for him by Dr. Guerena. (Id. at
183.) Dr. Guerena concluded that Yost more than likely had
interstitial cystitis. (Id.) He prescribed another month of gradually
increasing Ditropan. (Id.)
In December of 2001, Dr. Guerena increased the dosage of
Plaintiff's Ditropan and later prescribed a new drug Elmiron
because Yost's urinary urgency and frequency had not improved.
(Id. at 182-82.) On December 18, 2001, Dr. Connolly denied
Plaintiff's request for a Percocet (narcotic pain medication)
prescription for abdominal cramps after eating. (Id. at 197);
Percocet, http://www.drugs.com/percocet.html (last visited Dec.
On March 28, 2002, Dr. Stuart B. Kramer, an internist,
conducted a qualified medical evaluation of Yost regarding
cumulative trauma he sustained between January 24, 2000, and
January 24, 2001. (Id. at 202.) From his physical examination
of Plaintiff, Dr. Kramer concluded Yost suffered from
interstitial cystitis, ulcerative colitis, hypertension, and
anxiety and depression with secondary insomnia. (Id. at 202,
211.) Dr. Kramer believed Plaintiff's ulcerative colitis and
interstitial cystitis conditions were permanent and stationary.
(Id. at 213.) The doctor opined that "Yost must be precluded
from working in a stressful environment in order to prevent
aggravation of his colitis and interstitial cystitis conditions"
and must always have easy access to a bathroom. (Id. at 214.)
These work restrictions would "prevent [Plaintiff] from
performing his customary work activity as a trial attorney."
(Id.) Given Yost's physical condition, emotional problems, and
advanced age of fifty-nine, Dr. Kramer recommended that Plaintiff
"be considered permanently totally disabled." (Id.) However,
Dr. Kramer did not have the complete medical records from Dr. Guerena and Dr. Connolly, and
he reserved the right to change his opinion upon reviewing them.
(Id. at 211, 213.)
On April 5, 2002, Yost consulted Dr. Connolly about pain with
exertion in his right elbow. (Id. at 198.) Plaintiff denied any
injury, but admitted that he plays golf. (Id.) Dr. Connolly
assessed lateral epicondylitis (i.e., tennis elbow) and
prescribed heat, rest, avoidance of certain movements, and
Voltaren, an anti-inflammatory. (Id.); Stedman's Medical
Dictionary, supra, at 582; Voltaren Drug Information,
http://www.drugs.com/PDR/Voltaren_Tablets.html (last visited
Dec. 1, 2005). Yost complained of the same pain again on May 21,
2002. (Admin. R. at 199.) He received the same advice and was
also injected with Depo-Medrol, an anti-inflammatory, and
Marcaine, a local anesthetic. (Id.); Depo-Medrol Drug
(last visited Dec. 1, 2005); Marcaine Drug Information,
http://www. drugs.com/cons/Marcaine.html (last visited Dec. 12,
On September 3, 2002, Plaintiff complained of pain in his left
elbow. (Admin. R. at 200.) Dr. Connolly assessed medial
epicondylitis, advised heat and rest, and injected the elbow with
Depo-Medrol and Marcaine. (Id.) Yost returned to see Dr.
Connolly on December 31, 2002, complaining about pain in both
elbows. (Id. at 201.) Plaintiff received a prescription for
Vicodin, a narcotic painkiller. (Id.); Vicodin Drug
Information, http://www.drugs.com/vicodin.html (last visited
Dec. 1, 2005). The chart notes again indicate Yost had been
playing golf. (Admin. R. at 201.)
Plaintiff saw Dr. Guerena about his urinary problems in April,
July, and September of 2002, and in March and July of 2003.
(Id. at 271-76.) On April 1, 2002, Yost complained of severe urinary
urgency and frequency requiring him to urinate every one to two
hours. (Id. at 271.) At this point, Plaintiff was not
experiencing significant improvement with the prescribed drugs,
Ditropan XL or Elmiron. (Id.) Dr. Guerena discussed various
treatment options with Yost, and they ultimately decided to
continue the Elmiron therapy and follow up in three months.
At the three-month followup on July 18, 2002, Dr. Guerena
continued the medical management previously recommended despite
the lack of improvement in Plaintiff's condition. (Id. at 272.)
On September 16, 2002, Dr. Guerena recommended Elmiron and
Ditropan XL be continued despite the lack of improvement in
Yost's symptoms. (Id. at 273.) Plaintiff's medical management
was continued again on March 10, 2003, and a six-month followup
was recommended. (Id. at 274.) However, Yost next saw Dr.
Guerena on July 2, 2003. (Id. at 276.) After discussing various
treatments, Dr. Guerena recommended the Elmiron and Ditropan be
continued and Prelief dietary supplements be added. (Id.)
Prelief is used to control pain and urgency with interstitial
cystitis. Prelief Tablets and Granulate Information,
(last visited Dec. 5, 2005).
B. Mental Condition
On August 9, 2001, Dr. Connolly had a follow-up appointment
with Yost. (Id. at 143.) The doctor noted that Yost had been
terminated from his job and was getting divorced. (Id.) He
referred Plaintiff to a psychiatrist. (Id.) Yost met with the
psychiatrist, Dr. Dennis M. Pavlinac, twice in September of 2001.
(Id. at 151-53.) Dr. Pavlinac diagnosed Plaintiff with
"moderate to severe major depression, . . . as well as generalized anxiety
disorder." (Id. at 153.)
On September 11, 2001, Yost also began seeing Edward G.
Spencer, Ph.D., a clinical psychologist. (Id. at 115.) Dr.
Spencer diagnosed Plaintiff as suffering from severe major
depressive disorder, panic disorder without agoraphobia, alcohol
dependence, and marijuana use. (Id. at 118.) Yost's "general
attitude [wa]s very fearful and apprehensive." (Id. at 116.)
Plaintiff's Beck Depression Inventory Score was a fifty-five, and
his Beck Anxiety Inventory Score was a forty-six. (Id.) On the
Beck scale a twenty-nine to sixty-three is the severe range.
(Id.); Introduction to the Beck Scales,
http://mail.med.upenn.edu/-abeck/scaleintro.htm (last visited
Dec. 1, 2005). At this initial visit, Dr. Spencer found that Yost
was unable to perform his customary job duties because
Plaintiff's physical and psychological symptoms were
overwhelming. (Admin. R. at 117.)
Dr. H.N. Hurwitz, a psychiatrist, reviewed the record presented
to the Social Security Administration ("SSA") and opined on
September 21, 2001, that Yost did not suffer a severe mental
impairment, and his symptoms could be expected to improve. (Id.
at 119, 133.)
In response to the Social Security Administration's October 8,
2001, denial of Plaintiff's claim for disability benefits, Dr.
Spencer wrote a letter, dated October 26, 2001, stating that
Yost's depression was continuous, not single episode. (Id. at
24, 175.) Dr. Spencer further stated that Plaintiff cannot adjust
to ordinary emotional stresses, or follow basic instructions, and
his condition would keep him from working for a period of twelve
consecutive months. (Id. at 175.) Dr. Spencer asked the SSA to reconsider
its denial of Yost's disability claim. (Id.)
On November 23, 2001, Dr. Spencer completed a Mental Impairment
Questionnaire regarding Plaintiff. (Id. at 170-74.) Dr. Spencer
found that Yost's current Global Assessment of Functioning
("GAF") of forty was the highest GAF he had scored in the past
year. (Id.) The 100-point GAF scale is used to report an
individual's overall level of functioning and ability to carry
out daily living activities. Axis V: Global Assessment of
http://www.psyweb.com/Mdisord/DSM_IV/jsp/axis_V.jsp (last visited
Dec. 1, 2005). Plaintiff continued to meet and exceed the
Diagnostic and Statistical Manual of Mental Disorders' ("DSM-IV")
diagnostic criteria for major depressive disorder and panic
disorder, despite his voluntary participation in a minimal usage
alcohol reduction program. (Id. at 170-71.) Dr. Spencer
described Yost's prognosis as "guarded" and stated that
Plaintiff's impairment had lasted or could be expected to last at
least twelve months. (Id. at 171.)
In a follow-up letter to Yost's attorney, Dr. Spencer
interpreted Plaintiff's Beck Depression and Anxiety Inventory
scores before and after beginning the alcohol reduction program
prescribed by Dr. Spencer to show that there was no relationship
between the level of Yost's depression and his alcohol use.
(Id. at 169.)
Dr. Spencer's notes, dated December 12, 2001, indicate that
Plaintiff was still depressed but golfing three times a week
because he felt better being out. (Id. at 264.) Later that
month, Dr. Spencer completed a Substance Use Questionnaire about
Yost and noted that Plaintiff was drinking three to five vodka tonics per
night beginning in December 1999 or January 2000, which continued
until he began treatment on September 11, 2001. (Id. at 166.)
This pattern of heavy drinking stopped in October of 2001.
(Id.) Dr. Spencer also found that the cause of Yost's
depression could not accurately be determined because his
self-reported symptoms began in early 2000, around the same time
his alcohol use started. (Id. at 167.) Without the alcohol use,
Dr. Spencer opined that Yost's depression would be less
disabling, but Yost would still be totally disabled because of a
number of unnamed other factors and their net impact on
Yost continued to see Dr. Spencer between January and March
2002. (Admin. R. at 245-49.) In March 2002, Dr. Spencer's notes
reveal Plaintiff was still golfing between one and three times
per week. (Id. at 249.)
On April 3, 2002, Dr. Robert Zink, Ph.D., a clinical
psychologist, completed a comprehensive examination of Yost for
Plaintiff's workers' compensation claim. (Id. at 217-39.) Dr.
Zink found Yost suffered major depression "predominantly (more
than 50%) caused by his emotional response to his perception of
unreasonable work demands at Nationwide Insurance. . . ." (Id.
at 233.) Dr. Zink also stated that if factual data supports
Plaintiff's contentions about unreasonable work demands and
workload increases, Yost's claim may be compensable. (Id. at
Based on the information available and his review of treatment
records, Dr. Zink opined that Plaintiff was "likely Temporarily
Totally Disabled on a psychological basis from the time he left
work as certified by his family physician in April of 2000
through the current date" of April 3, 2002. (Id. at 235.) However, Dr.
Zink believed that Yost's period of disability had come to an end
by the time he evaluated him. (Id.)
In Dr. Zink's opinion, Plaintiff "suffer[ed] a Permanent
Partial Psychological Disability on the open labor market which
is equivalent to a `slight' (approximately 20%) disability."
(Id. at 235, 239.) Dr. Zink believed Yost was "not
psychologically able to return to work as a civil
litigation/trial attorney." (Id. at 236.) He did not offer an
opinion about Plaintiff's psychological capacity for other work.
From April 2002 until January 2003, Yost continued to seek
psychological counseling from Dr. Spencer. (Id. at 243, 250-54,
256-58, 260-61, 263-64, 266-67.) In April 2002, Dr. Spencer's
plan for Plaintiff focused on maintenance and stabilization.
(Id. at 250.) Yost was not feeling well in May and looked
sluggish and fatigued. (Id. at 251.) Plaintiff was tense, sad,
and feared he was losing control in early July 2002. (Id. at
253.) Later that month, Yost was severely depressed. (Id. at
254.) At Plaintiff's August 28, 2002, session, Dr. Spencer did
not take any notes on Yost's emotional condition. (Id. at 243.)
Plaintiff reported no setbacks at his September 25, 2002,
session with Dr. Spencer. (Id. at 265.) Yost acknowledged that
his conditions were not life-threatening, but he was experiencing
anxiety over not knowing where he was going to be in the future.
(Id.) On the same day, Dr. Spencer assessed Plaintiff's
suicidal ideation. (Id. at 257.) Although Yost experienced
feelings of helplessness and hopelessness, Dr. Spencer found that
Plaintiff's suicidal ideations were passive. (Id.) Yost was experiencing agitation, apprehension, anxiety,
depression, and fear on October 11, 2002. (Id. at 258.) His GAF
score was fifty-five, and Dr. Spencer listed sixty as the highest
GAF of the year. (Id.) Plaintiff commented that he was "down
but not hopeless." (Id.) Yost continued to report a depressed
mood and anxiety on October 18, 2002. (Id. at 260.) Dr. Spencer
again listed Plaintiff's GAF at fifty-five. (Id.) On November
14, 2002, Yost reported being highly anxious and agitated, but he
was not having suicidal ideations and still had a GAF of
fifty-five. (Id. at 263.)
Yost reported on December 12, 2002, that he did not feel he was
actively participating in his life. (Id. at 264.) However, he
felt better when he was out playing golf. (Id.) Additionally,
Plaintiff's "physical complaints [we]re being pretty well
[managed] by [his] medications. . . ." (Id.) However, two and
one-half weeks later, on December 30, 2002, Yost told Dr. Spencer
that stress had exacerbated the pain from his colitis and stomach
cramps to a ten, on a scale of one to ten, with ten being the
most severe. (Id. at 266.)
On January 31, 2003, Plaintiff was agitated and anxious. (Id.
at 267.) Dr. Spencer listed Yost's GAF as fifty-five. (Id.)
Plaintiff reported that his medical conditions were impacting his
mental state. (Id.)
Yost also saw his psychiatrist, Dr. Pavlinac, in October and
November 2002. (Id. at 269-70.) On October 16, 2002, Dr.
Pavlinac found Plaintiff was more depressed; he suffered from
extreme stress; and he was experiencing passive suicidal
ideations. (Id. at 269.) Dr. Pavlinac continued Yost's drug
prescriptions, originally prescribed in September of 2001, for Effexor, an
antidepressant, and Klonopin, a benzodiazepine prescribed for
generalized anxiety. (Id.); Effexor Information, http://
www.drugs.com/effexor.html (last visited Dec. 5, 2005); Klonopin
Information, http://www.drugs.com/klonopin.html (last visited
Dec. 5, 2005). On November 26, 2002, Plaintiff was still
depressed, lethargic, and experiencing passive suicidal
ideations. (Id. at 270.) Dr. Pavlinac diagnosed Yost with a
moderate depressed or anxious mood and increased his dosage of
III. THE ADMINISTRATIVE HEARING
A. Plaintiff's Testimony
Yost testified at the administrative hearing on July 8, 2003.
(Id. at 281-314.) He was sixty years old at the time, and his
only occupation had been as an in-house trial attorney for
insurance companies. (Id. at 281-82.) Plaintiff was employed by
Nationwide Insurance ("Nationwide") at the onset of his
disability, which was October 15, 2000. (Id. at 282.)
Yost went on sick leave beginning October 15, 2000, due to a
combination of problems, including colitis, cystitis,
hypertension, depression, and anxiety. (Id. at 282, 284, 286.)
Plaintiff's colitis symptoms started in early 2000 and gradually
worsened until he stopped working in October of 2000 because of
the severe stomach cramps. (Id. at 282-83.) In mid-2000, Yost
also began to experience urinary urgency and frequency that
progressively worsened. (Id. at 284.)
Plaintiff's colitis and urinary problems began to interfere
with his work schedule in April or May of 2000, when co-workers
had to fill in and complete Yost's work because of his physical problems. (Id. at 285.) Dr. Connolly attributed the onset of
the colitis to job stress resulting from the expansion of
Nationwide, which increased Yost's workload and forced him to
work with new claims adjusters and adjust to new procedures.
(Id. at 287-88.) Yost agreed. (Id. at 287.) These new
procedures required Plaintiff, who was computer illiterate, to
use a computer, and Nationwide did not provide him with the
appropriate computer training. (Id. at 288.) Although
Nationwide's complaints about Yost's job performance were not
related to his medical conditions, the criticisms created more
stress for Plaintiff. (Id. at 289.)
Yost was already experiencing depression and anxiety problems
when he stopped working in October of 2000. (Id. at 286.) Prior
to his termination from Nationwide in January of 2001, Plaintiff
discussed psychological and psychiatric treatment for his
depression and anxiety with Dr. Connolly, but he did not begin
that treatment until after Nationwide terminated him. (Id. at
289-90.) Dr. Connolly referred Yost to Dr. Spencer, a
psychologist, and Dr. Pavlinac, a psychiatrist. (Id. at 290.)
At his first visit with Dr. Spencer, Plaintiff was extremely
depressed and very anxious about his financial situation, health
condition, and inability to return to work. (Id.) At first,
medications prescribed by Dr. Guerena did not help much, but
eventually the antidepressants prescribed by Dr. Pavlinac put
Yost on "more of an even keel." (Id. at 290-91.) Even with the
medications, however, Plaintiff had trouble concentrating, was
irritable, and had little energy. (Id. at 291-92.)
Yost had passive suicidal ideation; he had not taken any steps
toward suicide; he had thoughts of weakness and of wishing he
were dead. (Id. at 292-93.) Other symptoms of his depression were
loss of social skills, reclusive behavior, irritability, and
sleep disturbances. (Id. at 293-94.) Plaintiff's sleep
disturbances resulted from both depression and his cystitis
symptoms of urinary urgency and frequency. (Id. at 294.)
Plaintiff also experienced a loss of appetite and, as a result,
lost fifteen to twenty pounds since early 2000. (Id. at 295.)
His current weight is stable at about 170 pounds. (Id.) He is
presently able to control his colitis symptoms through his diet
and consumes mostly soup. (Id. at 299-300.)
Yost cannot control the interstitial cystitis symptoms of
urinary urgency and frequency by diet, however. (Id. at 300.)
Plaintiff experiences these symptoms throughout the day on
average, once or twice an hour. (Id. at 300, 309.) Medication
has not alleviated them. (Id. at 298.) Yost believes he could
continue working if he had a desk next to a bathroom, but he does
not believe an employer would find bathroom breaks once or twice
an hour acceptable. (Id. at 310.) Plaintiff could not conduct a
trial or deposition and take a break every twenty minutes.
(Id.) Yost doubts that he could function in any job considering
the number of bathroom breaks he finds necessary and taking his
depression into account. (Id. at 311.)
Plaintiff has not attempted to find employment other than trial
work since he was fired in October of 2000. (Id. at 300.) He
received state disability income for one year and a $17,000
workers compensation settlement, minus attorney's fees. (Id. at
300-01.) Additionally, as a result of his divorce, Yost received approximately 20% of the proceeds from the sale of the community
property home. (Id. at 301.)
Plaintiff admits he was drinking when he first sought treatment
for his depression and anxiety with Dr. Spencer in September of
2001. (Id. at 302.) However, he testified that "immediately
thereafter [he became] completely alcohol free." (Id.) Yost
also used marijuana to help relieve his abdominal cramps, but it
did not work. (Id. at 303.)
Plaintiff agreed that drinking five drinks a night will cause
some urgency or frequency problems but says he never drank that
much. (Id. at 303-04.) Yost testified he has been alcohol-free
since September of 2001, although he never enrolled in drug and
alcohol treatment. (Id.)
Plaintiff's regular activities include practicing on the
putting green at a public golf course an average of three times a
week, where he frequently sees the same people. (Id. at 305.)
Yost also watches TV, drives his car to the grocery store, reads
legal fiction and history books, tries to help his landlady with
chores around the house, such as laundry and dishes, and plays
cards with his landlady. (Id. 307-08.)
Plaintiff has not participated in vocational rehabilitation,
despite encouragement from his counselor, because the doctors
involved in his workers' compensation claim determined he was not
a candidate for it. (Id. at 309.)
In response to questions from Dr. Arvin Klein, the medical
expert, Yost stated he is 99% positive he had the following tests
performed upon him: a cystoscopy, a biopsy of his bladder, an
x-ray of his kidneys, and a colonoscopy. (Id. 311-14.) However, Plaintiff could not recall which doctors ordered or administered
the tests. (Id. at 313.)
B. The Medical Expert's Testimony
Judge Valentino heard testimony from the medical expert, Dr.
Klein. (Id. at 311-18.) According to the doctor, there were no
records of the cystoscopy, the biopsy of Yost's bladder, the
x-ray of his kidneys, or the colonoscopy in the claim file.
(Id. at 313.) The ALJ asked Dr. Klein to make an assessment
based upon the records in Yost's file. (Id. at 314.)
Dr. Klein found no substantiating reports of Plaintiff's
alleged diagnoses of colitis, interstitial cystitis,
hypertension, or depression. (Id. at 314.) He found references
to Yost's frequent urinary problems being resistant to medication
but opined that "the medical symptoms are not consistent with the
medical findings so far." (Id. at 315.)
Dr. Klein believed Plaintiff had a "moderately severe
impairment secondary to his symptomatology." (Id.) However,
Yost did not meet the listing requirements for hypertension,
genitourinary impairments, digestive system impairments, or
ulcerative colitis. (Id. at 315-16.) According to the medical
expert, the medical criteria for ulcerative colitis includes
"bloody diarrhea occurring with a frequency of six to eight times
per day, considerable weight loss, and the finding of low
protein." (Id. at 315.) Interstitial cystitis, an inflammation
of the bladder, is not considered a listing impairment. (Id. at
The doctor testified that "depression seems to be the major
impairment with possible aggravation by alcohol and marijuana,"
but it was outside his medical specialty. (Id. at 315.) He
noted that at least one medical record mentioned high stress as a cause of
some of Plaintiff's symptoms. (Id. at 316.)
Dr. Klein opined that Plaintiff was "capable of moderate
exertional capability [up to] 25 to 50 pounds of exertion."
(Id.) Yost's sitting, standing, and walking capability would be
"six hours with close proximity to a bathroom." (Id.) Plaintiff
has no limitation on pushing or pulling. (Id.) He has a "slight
limitation in ladders and scaffolds because of his frequency of
urination." (Id.) Yost has "[n]o limitations in manipulation,
visual, or communication" tasks and no environmental limitations.
Plaintiff's attorney, William Radar, asked Dr. Klein what key
findings he would expect to confirm the interstitial cystitis
diagnosis if he had a cystoscopy report available. (Id. at
317.) According to Dr. Klein, the diagnosis itself, made by a
pathologist from a biopsy, would be sufficient. (Id.)
The medical evidence available to Dr. Klein consisted of Yost's
testimony and complaints to his doctors of urinary urgency and
frequency. (Id.) There is no documentation that a disease
process is present "without either the biopsy or a cystoscopy."
(Id.) The only objective evidence found in the records was that
Plaintiff had scarification of the penis that "might put some
pressure on the urethra," and "that would account for his
symptoms." (Id.) Dr. Klein believed the interstitial cystitis
and irritable bowel syndrome diagnoses were made "without any
substantiation of actual disease." (Id. at 317-18.)
Yost's attorney also asked whether Dr. Klein's opinion as to
the level of impairment would change if he had substantiation of the diagnoses. (Id. at 318.) Notably, Dr. Klein stated that his
diagnosis of a "moderately severe impairment" would not change
even if the diagnoses were substantiated. (Id.) His opinion of
Yost's residual functional capacity (RFC) would not change
because the only limitation necessary would still be proximity to
a bathroom. (Id.)
C. The Vocational Expert's Testimony
Judge Valentino also heard testimony from vocational expert,
Gloria Lasoff. (Id. at 318-23.) The ALJ posed two hypothetical
questions to Lasoff to determine Plaintiff's transferable work
skills. (Id. at 319-21.) The first hypothetical was based on
the medical expert's finding that Yost has a moderate exertional
capacity: He can carry twenty-five to fifty pounds, can sit and
stand six out of eight hours a day in close proximity to a
restroom, and should avoid climbing ladders and scaffolds. (Id.
at 319-20.) In response to this hypothetical, Lasoff stated that
Plaintiff has transferable skills that would allow him to work as
a paralegal or a legal researcher. (Id. at 320.) In San Diego,
there are approximately 4,100 jobs in the legal assistant area,
including paralegal, title researcher, title examiner, and
abstractor. (Id. at 320-21.) Nationally, there are over 275,000
jobs in the legal assistant field. (Id. at 321.)
The second hypothetical posed by Judge Valentino was based on a
finding of severe depression with a GAF between thirty-five and
forty. (Id.) According to Lasoff, Yost would be unable to do
any work in the national economy with a GAF of thirty-five to
forty. (Id.) Plaintiff's attorney then modified the ALJ's first hypothetical
to include a limitation to simple repetitive tasks. (Id.)
Lasoff agreed that a limitation to simple repetitive tasks would
eliminate the jobs that would employ the transferable skills Yost
possesses. (Id. at 322.)
Plaintiff's attorney then asked Lasoff what medium exertional
positions would be available to a person limited to simple
repetitive tasks (unskilled labor) and proximity to a restroom.
(Id.) According to Lasoff, assembly, cleaning, packing, and
laundry positions would be available. (Id.) However, employers
of unskilled laborers would typically not tolerate frequent
restroom breaks. (Id.) An individual limited to simple
repetitive tasks in the unskilled medium work range would not be
able to maintain this type of job if he needed a restroom break
twice an hour. (Id. at 322-23.)
IV. THE ALJ'S DECISION
In his decision, Judge Valentino recounted Yost's medical,
work, and educational history, as well as the evidence presented
at the administrative hearing. (Id. at 15-20.) He then made the
1. The claimant meets the nondisability requirements
for a Period of Disability and Disability Insurance
Benefits set forth in Section 216(i) of the Social
Security Act and is insured for benefits through the
date of this decision.
2. The claimant has not engaged in substantial
gainful activity since the alleged onset of
3. The claimant has an impairment or a combination of
impairments considered "severe" based on the
requirements in the Regulations 20 CFR § 404.1520
(b). 4. These medically determinable impairments do not
meet or medically equal one of the listed impairments
in Appendix 1, Subpart P, Regulation No. 4.
5. The undersigned finds the claimant's allegations
regarding his limitations are not totally credible
for the reasons set forth in the body of the
6. The undersigned has carefully considered all of
the medical opinions in the record regarding the
severity of the claimant's impairments (20 CFR §
7. The claimant is unable to perform any of his past
relevant work (20 CFR § 404.1565).
8. The claimant is an "individual of advanced age"
(20 CFR § 404.1563).
9. The claimant has a 12th grade education (20 CFR §
10. The claimant has transferable skills from skilled
work previously performed as described in the body of
the decision (20 CFR § 404.1568).
11. The claimant has the residual functional capacity
to perform a significant range of medium work as
discussed in the body of the decision (20 CFR §
12. Although the claimant's exertional and
nonexertional limitations do not allow him to perform
the full range of medium work, using
Medical-Vocational Rule 203.16 as a framework for
decision-making, there are a significant number of
jobs in the national economy that he could perform.
Examples of such jobs include work in legal research
or as a paralegal of which there are 4,100/275,000
positions in the economy.
13. The claimant was not under a "disability," as
defined in the Social Security Act, at any time
through the date of this decision (20 CFR § 404.1520
(Id. at 20-21.)
Based on all of the above, the ALJ concluded that Plaintiff is
not entitled to a period of disability or Disability Insurance
Benefits under the Social Security Act. (Id. at 21.) V. STANDARD OF REVIEW
To qualify for disability benefits under the Social Security
Act, an applicant must show that: (1) He or she suffers from a
medically determinable impairment that can be expected to last
for a continuous period of twelve months or more or result in
death, and (2) the impairment renders the applicant incapable of
performing the work that he or she previously performed or any
other substantially gainful employment that exists in the
national economy. See 42 U.S.C.A. § 423 (d) (1) (A), (2) (A)
(West Supp. 2005). An applicant must meet both requirements to be
classified as "disabled." Id.
Sections 205 (g) and 1631 (c) (3) of the Social Security Act
allow unsuccessful applicants to seek judicial review of the
Commissioner's final agency decision. 42 U.S.C.A. §§ 405(g), 1383
(c) (3) (West Supp. 2005). This Court should affirm the
Commissioner's decision "if it is supported by substantial
evidence and if the Commissioner applied the correct legal
standards." Howard ex. rel. Wolff v. Barnhart, 341 F.3d 1006,
1011 (9th Cir. 2003) (citing Pagter v. Massanari,
250 F.3d 1255, 1258 (9th Cir. 2001)).
Substantial evidence is what "`a reasonable person might accept
as adequate to support [the ALJ's] conclusion,'" considering the
record as a whole. Thomas v. Barnhart, 278 F.3d 947, 954 (9th
Cir. 2002) (quoting Flaten v. Sec'y of Health & Human Servs.,
44 F.3d 1453, 1457 (9th Cir. 1995)). It means "`more than a mere
scintilla but less than a preponderance'" of the evidence.
Howard, 341 F.3d at 1011 (quoting Sandgathe v. Chater,
108 F.3d 978, 980 (9th Cir. 1997)). The Court considers the record as
a whole, including the evidence that supports and the evidence that
detracts from the ALJ's decision. Mayes v. Massanari,
276 F.3d 453, 459 (9th Cir. 2001) (citing Sandgathe v. Chater,
108 F.3d 978, 980 (9th Cir. 1997); Clem v. Sullivan, 894 F.2d 328, 330
(9th Cir. 1990)).
To determine whether a claimant is "disabled," the Social
Security regulations use a five-step process outlined in
20 C.F.R. § 404.1520. If an applicant is found to be "disabled" or
"not disabled" at any step, there is no need to proceed further.
Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th Cir. 2005)
(citations omitted). Although the ALJ must assist the applicant
in developing the record, the applicant bears the burden of proof
during the first four steps. Tackett v. Apfel, 180 F.3d 1094,
1098 & n. 3 (9th Cir. 1999). If the fifth step is reached,
however, the burden shifts to the Commissioner. Id. at 1098.
The steps for evaluating a claim are:
Step 1. Is the claimant presently working in a
substantially gainful activity? If so, then the
claimant is "not disabled" within the meaning of
the Social Security Act and is not entitled to
disability insurance benefits. If the claimant is not
working in a substantially gainful activity, then the
claimant's case cannot be resolved at step one and
the evaluation proceeds to step two.
Step 2. Is the claimant's impairment severe? If
not, then the claimant is "not disabled" and is
not entitled to disability insurance benefits. If the
claimant's impairment is severe, then the claimant's
case cannot be resolved at step two and the
evaluation proceeds to step three.
Step 3. Does the impairment "meet or equal" one of
a list of specific impairments described in the
regulations? If so, the claimant is "disabled" and
therefore entitled to disability insurance benefits.
If the claimant's impairment neither meets nor equals
one of the impairments listed in the regulations,
then the claimant's case cannot be resolved at step
three and the evaluation proceeds to step four. Step 4. Is the claimant able to do any work that he
or she has done in the past? If so, then the claimant
is "not disabled" and is not entitled to
disability insurance benefits. If the claimant cannot
do any work he or she did in the past, then the
claimant's case cannot be resolved at step four and
the evaluation proceeds to the fifth and final step.
Step 5. Is the claimant able to do any other work?
If not, then the claimant is "disabled" and
therefore entitled to disability insurance benefits.
If the claimant is able to do other work, then the
Commissioner must establish that there are a
significant number of jobs in the national economy
that claimant can do. There are two ways for the
Commissioner to meet the burden of showing that there
is other work in "significant numbers" in the
national economy that claimant can do: (1) by the
testimony of a vocational expert, or (2) by reference
to the Medical-Vocational Guidelines at 20 C.F.R. pt.
404, subpt. P, app. 2. If the Commissioner meets this
burden, the claimant is "not disabled" and
therefore not entitled to disability insurance
benefits. If the Commissioner cannot meet this
burden, then the claimant is "disabled" and
therefore entitled to disability benefits.
Id. at 1098-99 (footnotes and citations omitted).
Section 405 (g) permits this Court to enter a judgment
affirming, modifying, or reversing the Commissioner's decision.
42 U.S.C. § 405(g). The matter may also be remanded to the Social
Security Administrator for further proceedings. Id.
A. The ALJ Properly Assessed and Gave Appropriate Weight to
the Opinions of Yost's Treating Physicians.
According to 20 C.F.R. § 404.1527 (d), a treating physician's
opinion must be accorded controlling weight if it is
"well-supported by medically acceptable clinical and laboratory
diagnostic techniques and . . . not inconsistent with the other
substantial evidence in [the] case record. . . ."
20 C.F.R. § 404.1527 (d) (2) (2005). If the treating physician's opinion is
not given controlling weight, the following factors are applied
in determining what weight to give the opinion: (1) the length of
the treatment relationship and the frequency of examination, (2)
the nature and extent of the treatment relationship, (3) the
supportability of the opinion, (4) the consistency of the opinion
with the record as a whole, (5) the specialization of the
treating physicican, and (6) any other factors brought to the
attention of the ALJ which tend to support or contradict the
opinion. Id. § 404.1527 (d) (2) (i)-(ii), (d) (3)-(6).
Opinions of treating physicians may only be rejected under
certain circumstances. See Batson v. Comm'r of the Soc. Sec.
Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). "Cases in [the
Ninth Circuit] 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.
Chater, 81 F.3d 821, 830 (9th Cir. 1995).
The standard for determining whether an ALJ to properly
rejected the opinion of a treating physician varies. If the
treating doctor's opinion is not contradicted by another
physician, the ALJ must give clear and convincing reasons for
rejecting it. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.
2002) (holding ALJ must give clear and convincing reasons for
rejecting the uncontroverted opinion of a treating physician);
see also Lester, 81 F.3d at 830.
On the other hand, if the treating physician's opinion is
contradicted, "[t]he ALJ must give specific, legitimate reasons
for disregarding the opinion of the treating physician.'"
Batson, 359 F.3d at 1195 (quoting Matney v. Sullivan, 981 F.2d 1016, 1019
(9th Cir. 1992).
Plaintiff contends Judge Valentino failed to consider and give
appropriate weight to the opinions of treating physicians Drs.
Spencer, Pavlinac, Guerena, and Connolly. (Pl.'s Mem. 17-21.)
Yost argues all four of these treating physicians found Plaintiff
suffered from severe impairments beginning in early 2000 which
were disabling within the meaning of the Act. (Id. at 18-19.)
Judge Valentino accepted the treating physicians' diagnoses and
found that the medical evidence indicates Yost has the following
severe impairments: "ulcerative colitis, interstitial [cystitis],
frequency [of urination] and a depressive disorder. . . ."
(Admin. R. at 16.) However, whether an individual is disabled
under the Act is an administrative finding, not a medical one.
See 20 C.F.R. § 404.1527 (e) (1) (2005). The ALJ found
Plaintiff's impairments were severe, but they did not meet or
equal the listing requirements in 20 C.F.R. part 404, Appendix 1,
Subpart P. (Admin. R. at 16-17.)
Judge Valentino also accepted the treating physicians' opinions
(and disagreed with agency physicians) that Yost "is unable to
perform any of his past relevant work." (Id. at 18-19, 21.)
However, the inquiry does not end there because, as the ALJ
specifically noted, the Social Security Administration considers
whether a claimant can perform other work. (Id. at 18.)
1. Physical Condition
Judge Valentino gave controlling weight to the opinions of
treating physicians Dr. Connolly and Dr. Guerena. (Id. at 16.)
The ALJ accepted Dr. Connolly's diagnosis of ulcerative colitis
and Dr. Guerena's diagnosis of interstitial cystitis. (Id.) Judge
Valentino also accepted the treating physicians' opinions that
Plaintiff "is unable to perform any of his past relevant work."
(Id. at 18-19, 21.) Dr. Connolly and Dr. Guerena did not
indicate that Yost could not perform any work, just that he could
not return to his former job as a trial attorney. (Id. at 18.)
Plaintiff's assertion that Drs. Connolly and Guerena found him
completely disabled from all work is not supported by the record.
Although Judge Valentino accepted the diagnoses of ulcerative
colitis and interstitial cystitis, he properly exercised his
discretion in making an administrative finding of nondisability
on the basis that Plaintiff "can perform medium work [other than
his past work] that is less stressful and work that is in close
proximity to a restroom." (Id. at 19.)
2. Mental Condition
Judge Valentino wrote that "[u]pon reviewing all of the
evidence of record, the undersigned . . . concludes the claimant
is not disabled within the meaning of the Social Security Act."
(Id. at 15.) The ALJ is not required to discuss each item of
evidence, but the record should indicate that all evidence
presented was considered. See Craig v. Apfel, 212 F.3d 433,
436 (8th Cir. 2000); Clifton v. Chater, 79 F.3d 1007, 1009-10
(10th Cir. 1996).
Although the ALJ did not specifically refer to or adopt the
opinions of nonexamining psychiatrists that contradicted those of
Drs. Spencer and Pavlinac; contradicting opinions were contained
within the record. (Id. at 119-133, 192, 217-41 (finding Yost's
impairments not severe Dr. Hurwitz, agreeing with SSA's initial
decision to deny benefits Dr. Gross, and finding that Yost has
a "slight" disability Dr. Zink.) Thus, Judge Valentino was
required to give specific, legitimate reasons, supported by
substantial evidence in the record, for disregarding the
contradicted opinions of treating physicians Dr. Spencer and Dr.
Pavlinac. See Batson, 359 F.3d at 1195; Tonapetyan v.
Halter, 242 F.3d 1144, 1148 (9th Cir. 2001).
The ALJ did not completely reject the opinions of Yost's
treating therapist, Edward G. Spencer, Ph.D., and his
psychiatrist, Dr. Dennis M. Pavlinac, but he gave the opinions
"little weight." (Admin. R. at 17.) Judge Valentino specifically
found Dr. Spencer and Dr. Pavlinac reported an exaggerated GAF of
thirty-five to forty. (Id.) Their evaluations were conducted on
September 4 and 27, 2001, (Dr. Pavlinac) and September 16, 2001,
(Dr. Spencer). (Id. at 118, 151-53.) However, during the period
from October 11, 2002, through January 31, 2003, Spencer assessed
Yost's current GAF at fifty-five and his highest for the year at
sixty. (Id. at 258-67.) "A GAF score represents a clinicians
judgment of an individual's overall level of functioning. . . . A
GAF rating of 55 indicates a `moderate' impairment in social,
occupational, or school functioning (e.g., few friends, conflicts
with peers or coworkers)." See King v. Barnhart,
372 F. Supp. 2d 932, 939 n. 7 (S.D. Tex. 2005).
The ALJ noted that Dr. Pavlinac assessed Plaintiff as suffering
from moderate to severe major depression, which was, in Judge
Valentino's opinion, inconsistent with the doctor's clinical
findings that Yost was alert and oriented, had intact memory,
normal thought processes, and logical and coherent thinking.
(Id. at 17-18.) This is not a complete picture of Dr.
Pavlinac's findings. The doctor also noted Yost's thinking remained "colored
by his very pessimistic and depressive thoughts." (Id. at 153.)
In addition, Plaintiff had suicidal ideation as well as a
moderate to severely depressed mood. (Id.)
Another inconsistency noted by the ALJ was the discrepancy
between Dr. Pavlinac's opinion that Plaintiff's condition was
guarded based on Yost's medical condition and Dr. Pavlinac's
statement that it was a little early to tell how successful the
trial of medication would be. (Id. at 18.) However, the
medications Dr. Pavlinac prescribed for Plaintiff in September
2001, Effexor and Klonopin, were continued through November 2002.
(Id. at 153, 270.) Over one year later, on November 26, 2002,
Dr. Pavlinac still found Yost moderately depressed with an
anxious mood. (Id. at 270.)
The ALJ found Dr. Spencer's conclusion that no relationship
existed between the level of Plaintiff's depression and his
alcohol use was not entirely credible; Dr. Spencer believed that
Yost's drinking three to five mixed drinks a day for twenty to
twenty-one months showed alcohol dependence. (Id. at 18.)
Nevertheless, the doctor concluded that a reduction in alcohol
intake did not affect Yost's level of depression (id. at 169),
but it did reduce his level of anxiety (id.).
Judge Valentino contrasted Dr. Spencer's November 30, 2001,
conclusion that no relationship existed between Plaintiff's
alcohol use and his depression with a September 24, 2001, letter
Dr. Spencer wrote to Dr. Guerena asking for assistance in
encouraging Yost to engage in total abstinence from alcohol and
to pursue vocational rehabilitation and drug treatment. (Admin.
R. at 18, 169, 176.) Dr. Spencer opined that if Plaintiff were forced to be
accountable in these areas, he could reach a decent level of
functioning. (Id. at 177.) The ALJ found this conclusion
inconsistent with Dr. Spencer's opinion that Yost was totally
disabled. (See Id.)
There was conflicting evidence on the extent and effect of
Yost's depression. "If the evidence can support either outcome,
the court may not substitute its judgment for that of the ALJ."
Tackett v. Apfel, 180 F.3d at 1098 (quoting Matney v.
Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992). Nevertheless, the
Court must consider the record as a whole. Id. Here, that
evidence includes the March 28, 2002, and April 3, 2002, medical
reports prepared by Stuart Kramer, M.D., and Robert Zink, Ph.D.,
in connection with Yost's workers' compensation claim. (Id. at
In his report, Dr. Zink noted that Yost stated that he could
not perform as a trial attorney and would have difficulty being a
paralegal because "he is not skilled in typing and not skilled in
clerical or computer skills." (Id. at 224.) Dr. Zink completed
a work function impairment form and found Yost slightly to
moderately impaired for one category and very slightly to
slightly impaired for seven other work functions. (Id. at 239.)
Still, he wrote that "[c]urrent psychological clinical
examination and psychological testing indicates that Mr. Yost
likely suffers significant residuals of a major depression with
associated anxiety and psychophysiologic tension." (Id. at
In a contemporaneous report dated March 28, 2002, Dr. Stuart
Kramer concluded that Plaintiff's condition prevented him from
"performing his customary work activity as a trial attorney."
(Id. at 214.) The doctor felt that Yost's emotional and physical
problems, combined with "his advanced age of 59" precluded him
from competing in the labor market. (Id.)
Judge Valentino accorded little weight to the opinions of
treating physicians Dr. Spencer and Dr. Pavlinac because of
perceived inconsistencies within their reports (including
opinions of disability juxtaposed with good prognoses for
recovery). The ALJ gave specific and seemingly legitimate reasons
for rejecting the treating physicians' opinions, but the ALJ's
reasons are not supported by substantial evidence in the record.
"Because the ALJ failed to provide legally sufficient reasons
for rejecting [Yost's] . . . treating physicians' opinions, we
credit the evidence as true." Benecke v. Barnhart,
379 F.3d 587, 594 (9th Cir. 2004). Even so, an award of benefits does not
automatically follow. First, the conclusions of Drs. Pavlinac and
Spencer are medical opinions, not legal conclusions. Harman v.
Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000). Next, the vocational
expert found that with severe depression and a GAF between
thirty-five to forty, there were no jobs available for Yost.
(Admin. R. at 321.) However, even Yost's treating physician, Dr.
Spencer, found that Yost's GAF had improved to fifty-five to
sixty. (Id. at 258, 260, 263.) Consequently, there was no
testimony from the vocational expert, considering the improved
GAF, that Yost is able to perform work in the national economy,
so a remand for further proceedings is appropriate. Harman v.
Apfel, 211 F.3d at 1180. Although this conclusion should resolve
this matter, the Court will address Yost's remaining contentions. B. Plaintiff's Argument That the ALJ Erred in Relying on the
Testimony of the Medical Expert to Conclude That Yost Could
Sustain Substantial Gainful Activity Is Without Merit.
Plaintiff contends Judge Valentino relied in error on the
testimony of Dr. Klein, who is neither a psychologist nor
psychiatrist, to conclude that Yost could perform a significant
range of medium work. (Pl.'s Mem. 21-23.) Plaintiff also argues
that Dr. Klein, an internist and cardiologist, failed to consider
and acknowledge the medical records of Dr. Guerena and Dr.
Connolly regarding Yost's colitis and cystitis and the mental
health records of Dr. Spencer, a psychologist, and Dr. Pavlinac,
a psychiatrist, regarding Plaintiff's depressive disorder. (Id.
at 22.) In passing, Yost claims substantial evidence does not
support the ALJ's decision because Judge Valentino did not have
"necessary information." (Id. at 21.) Plaintiff does not
identify the necessary information that was missing. (Id.)
Defendant asserts substantial record evidence supports the
ALJ's decision, and Judge Valentino properly relied on Dr.
Klein's expert testimony that Yost "retained the ability to
perform medium work that did not require climbing, but allowed
close access to a bathroom. . . ." (Def.'s Mem. 11.)
1. Development of the Record
In Social Security cases, "[t]he ALJ always has a `special duty
to fully and fairly develop the record and to assure that the
claimant's interests are considered . . . even when the claimant
is represented by counsel.'" Celaya v. Halter, 332 F.3d 1177,
1183 (9th Cir. 2003) (quoting Brown v. Heckler, 713 F.2d 441,
443 (9th Cir. 1983) (citations omitted)). Courts recognize that the ALJ must further develop the record
when there is "[a]mbiguous evidence, or the ALJ . . . find[s]
that the record is inadequate to allow for proper evaluation of
the evidence. . . ." Id.; see also Oliver v. Apfel, No. C
98-4124 MJJ, 1999 WL 760531, at *2 (N.D. Cal. Sept. 22, 1999)
(citing Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996))
("The ALJ's obligation to develop the record arises only where
the ALJ finds the record insufficient to properly evaluate the
Social Security regulations provide that if the evidence
received from a claimant's treating physician or other medical
source is inadequate for the SSA to determine whether the
claimant is disabled, the SSA will obtain additional information.
20 C.F.R. § 416.912 (e)-(f) (2005). The SSA will either recontact
medical sources that have already examined the claimant or the
claimant's records or ask the claimant to attend one or more
consultative examinations with SSA physicians. Id. The evidence
received from existing medical sources must be inadequate before
the SSA will make an effort to seek additional evidence or
clarification. Id. Whether the evidence is inadequate is
decided by the ALJ in light of the record as a whole. See
Tonapetyan, 242 F.3d at 1150.
When he made his decision, Judge Valentino had the opinions of
Yost's physicians, Drs. Connolly, Guerena, Spencer, and Pavlinac,
in addition to the opinions of several examining and nonexamining
physicians. (See Admin. R. at 115-35, 143-274.) Additionally,
although the ALJ did not have copies of the colonoscopies or
cystoscopies performed on Yost, the ALJ did not question their
existence, which was reflected in the lengthy qualified medical
evaluation report of Dr. Kramer. (Id. at 203, 207.) Moreover,
Dr. Klein, the medical expert at the administrative hearing,
testified that "whether [Plaintiff] has ulcerative colitis or
interstitial cystitis his RFC [residual functional capacity]
would remain the same." (Id. at 318.) According to Dr. Klein,
even with these conditions, Yost's only limitation would still be
proximity to a bathroom. (Id.) The medical evidence was
adequate for Judge Valentino to make a determination regarding
whether Plaintiff was disabled. Because the evidence was adequate
and the result would have been the same regardless of other
evidence, the ALJ was not under a duty to obtain additional
medical records or other "necessary information." (See Pl.'s
Mem. 21); 20 C.F.R. § 416.912 (e)-(f); Tonapetyan,
242 F.3d at 1150.
In addition, Dr. Klein's opinion was not ambiguous or
equivocal. If a physician's opinion is equivocal or ambiguous,
the ALJ has a duty to further develop the record and seek
additional evidence. Tonapetyan, 242 F.3d at 1150. Dr. Klein's
opinion on Yost's residual functional capacity was clear. (See
Admin. R. at 318.) The doctor concluded that Plaintiff would be
able to perform work at the moderate exertional level, with
sitting, standing, and walking limited to six hours of an
eight-hour workday with close proximity to a restroom. (Id. at
Judge Valentino never expressed a need for additional records.
In fact, he accepted the diagnoses of colitis and cystitis.
(Id. at 16.) Because the record was adequate, sufficient, and
clear, the ALJ had no duty to seek additional medical information
to clarify that opinion. 2. Dr. Klein's Opinion Regarding Colitis and Cystitis
Yost also argues that Dr. Klein improperly formed his opinion
without regard to Dr. Guerena's September 16, 2002, March 10,
2003, and July 2, 2003, reports, which state that Plaintiff
suffers from chronic interstitial cystitis that shows no
improvement with medication. (Pl.'s Mem. 21-22.) Furthermore,
Yost contends that Dr. Klein failed to consider Dr. Connolly's
note that he had been treating Plaintiff for colitis since August
22, 2000, and the doctor's opinion that "the colitis was stress
related and resulted in a permanent disability from high stress
work as a trial attorney." (Id. at 22.)
Although Dr. Klein testified that he found no records
substantiating the diagnoses of colitis and interstitial
cystitis, Judge Valentino did not rely on that portion of the
expert's testimony. (Admin. R. at 314-15.) Instead, he accepted
those diagnoses and found that they were severe impairments under
the Social Security Act. (Id. at 16.) Furthermore, Dr. Klein
stated Yost's residual functional capacity would have been the
same whether or not the diagnoses were substantiated. (Id. at
318.) Therefore, the absence of substantiating medical records
did not affect the ALJ's decision.
3. Omission of Depressive Disorder from Dr. Klein's Opinion
Dr. Klein never offered an opinion regarding Plaintiff's
depression because it was outside the scope of his medical
speciality of internal medicine. (Admin. R. at 315.) Therefore,
there was no reason for Dr. Klein to consider Yost's mental
health records from Dr. Spencer or Dr. Pavlinac. Because Dr.
Klein did not offer an opinion on Plaintiff's depression, Yost's
contention that the ALJ relied in error on Dr. Klein's testimony with regard
to Plaintiff's depression is without merit.
Judge Valentino did not reduce the weight given to Yost's
mental health doctors' opinions because of the testimony of Dr.
Klein. (See id at 17.) Rather, the ALJ accorded little weight
to the opinions of Dr. Spencer and Dr. Pavlinac for other
reasons. (Id. at 17-18.)
C. The Matter Should Be Remanded for Further Proceedings.
The ALJ failed to give specific and legitimate reasons
supported by substantial evidence in the record for rejecting the
opinions of Drs. Spencer and Pavlinac. Therefore, his decision
should be reversed. A remand is necessary for vocational expert
testimony stating whether a person with the limitations
established by the improperly rejected evidence is able to
perform any work in the national economy. See Harman v.
Apfel, 211 F.3d at 1180. However, Plaintiff has failed to show a
basis for a remand to a different administrative law judge.
For the reasons set forth above, Plaintiff's Motion for Summary
Judgment should be GRANTED in part, and Defendant's
Cross-Motion for Summary Judgment should be DENIED. Plaintiff's
request for an award of attorney's fees should also be GRANTED.
This Report and Recommendation will be submitted to the United
States District Court judge assigned to this case, pursuant to
the provisions of 28 U.S.C. § 636 (b) (1). Any party may file
written objections with the Court and serve a copy on all parties
on or before January 20, 2006. The document should be captioned
"Objections to Report and Recommendation." Any reply to the objections shall be served and filed on or before January 31,
2006. The parties are advised that failure to file objections
within the specified time may waive the right to appeal the
district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th
IT IS SO ORDERED.
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