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.)
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).
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. ...