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YOST v. BARNHART

December 29, 2005.

LLOYD YOST, Plaintiff,
v.
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. 7.)

  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).

  I. BACKGROUND

  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. (Id.)

  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. 1, 2005).

  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 Information, http://www.drugs.com/cons/Depo_Medrol.html#GXX06 (last visited Dec. 1, 2005); Marcaine Drug Information, http://www. drugs.com/cons/Marcaine.html (last visited Dec. 12, 2005).

  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. (Id.)

  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, http://www.drugs.com/pdr/Prelief_Tablets_and_Granulate.html (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 Functioning Scale, 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 Plaintiff. (Id.)

  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 234.)

  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. (See id.)

  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. ...


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