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Alice Cunningham v. Michael J. Astrue


August 25, 2011


The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge


Plaintiff filed a Complaint on May 7, 2010, seeking review of the denial by the Social Security Commissioner (the "Commissioner") of plaintiff's application for supplemental security income ("SSI"). On May 24, 2010, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation ("Joint Stip.") on January 5, 2011, in which: plaintiff seeks an order reversing the Commissioner's decision and remanding this case for the payment of benefits or, alternatively, for further administrative proceedings;*fn1 and defendant requests that the Commissioner's decision be affirmed or, alternatively, remanded for further administrative proceedings. The Court has taken the parties' Joint Stipulation under submission without oral argument.


On January 28, 2003, plaintiff filed an application for SSI. (Administrative Record ("A.R.") 520.) Plaintiff, who was born on January 12, 1963 (A.R. 530),*fn2 claims to have been disabled since August 31, 2001 (A.R. 520), due to depression, affective mood disorder, asthma, emphysema, joint pain and cramps, back disorders, reflex sympathetic dystrophy, gastroesophageal reflux disease, and an ulcer (see, e.g., A.R. 34, 42; Joint Stip. at 2). Plaintiff has past relevant work experience as a child care provider, custodian, and general clerk. (A.R. 530.)

After the Commissioner denied plaintiff's claim initially and upon reconsideration (A.R. 34-38, 42-46, 520), plaintiff requested a hearing (A.R. 47). On November 15, 2004, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Frederick J. Graf ("ALJ Graf"). (A.R. 503-16.) On December 13, 2004, ALJ Graf denied plaintiff's claims (A.R. 11-17), and the Appeals Council subsequently denied plaintiff's request for review of ALJ Graf's decision (A.R. 4-6). On May 24, 2005, plaintiff sought review in this Court, which remanded the case for further proceedings based upon the parties' February 7, 2006 Stipulation To Voluntary Remand Pursuant to Sentence Four of 42 U.S.C. § 405(g) ("Stipulation"). (A.R. 520.)

On March 18, 2006, the Appeals Council effectuated the Court's Order, vacated ALJ Graf's December 13, 2004 decision, and remanded the matter for further action consistent with the parties' Stipulation. (A.R. 520, 558-60.) The Appeals Council also directed that a subsequent, duplicative SSI application filed by plaintiff on December 29, 2005, be consolidated with the remanded case. (A.R. 520, 559.)

Pursuant to the Orders of the District Court and Appeals Council, plaintiff, who was represented by counsel, testified before Administrative Law Judge Lowell Fortune (the "ALJ") on September 13, 2006, and April 13, 2007. (A.R. 520, 599-631, 640-682.) On June 29, 2007, the ALJ denied plaintiff's claim (A.R. 686-96), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 520). Plaintiff again sought review in this Court, which, on January 10, 2008, remanded the case for further administrative proceedings ("January 10, 2008 Order") based upon the parties' Stipulation To Voluntary Remand Pursuant to Sentence Four of 42 U.S.C. § 405(g) and To Entry of Judgment. (A.R. 697-700.) On February 29, 2008, the Appeals Council vacated the ALJ's June 29, 2007 decision and remanded the case for further action consistent with the January 10, 2008 Order. (A.R. 520, 706.)

On October 7, 2009, plaintiff, who was represented by counsel, testified at a hearing before the ALJ. (A.R. 1472-1503.) Vocational expert Sandra Fioretti and plaintiff's daughter, Amber Cunningham, also testified. (1497-1502.) On February 5, 2010, the ALJ denied plaintiff's claim. (A.R. 520-32.) That decision is now at issue in this action.


The ALJ found that plaintiff has not engaged in substantial gainful activity since January 28, 2003, the application date. (A.R. 523.) The ALJ determined that plaintiff has the following severe impairments: "status post injury to right hand; migraine headaches; mood disorder, not otherwise specified (NOS); depression; and alcohol dependence." (Id.) The ALJ also determined that plaintiff does not have an impairment or a combination of impairments that meets or equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § 416.920(d), 416.925, 416.926). (Id.)

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform "light work" as follows:

[plaintiff] can lift and carry 20 pounds occasionally and 10 pounds frequently; she can stand and/or walk for 6-hours out of an 8-hour work day; and she can sit for 6 hours out of an 8-hour work day. She cannot climb ladders, scaffolds, or ropes, but she can frequently climb ramps and stairs. She can frequently balance, bend, stoop, crouch, and kneel; she can occasionally crawl. She is limited to simple, repetitive tasks. She cannot perform work requiring hypervigilance; she cannot perform work involving safety operations or be responsible for the safety of others; and she cannot work on an assembly line. (A.R. 524.)

The ALJ concluded that plaintiff is unable to perform her past relevant work. (A.R. 530.) However, having considered plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert, the ALJ found that jobs exist in the national economy that plaintiff could perform, including cleaner, toy assembler, and "cafeteria attendance [sic]." (A.R. 531.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, since January 28, 2003, the date her SSI application was filed. (A.R. 531.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "While inferences from the record can constitute substantial evidence, only those 'reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.


Plaintiff claims that the ALJ improperly considered and rejected the opinion of her treating physician. (Joint Stip. at 3-14.)

I. The ALJ Improperly Considered and Rejected The Opinion Of Plaintiff's Treating Physician.

It is the responsibility of the ALJ to analyze evidence and resolve conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). In the hierarchy of physician opinions considered in assessing a social security claim, "[g]enerally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 416.927.

The opinions of treating physicians are entitled to the greatest weight, because the treating physician is hired to cure and has a better opportunity to observe the claimant. Magallanes, 881 F.2d at 751. When a treating physician's opinion is not contradicted by another physician, it may be rejected only for "clear and convincing" reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)(as amended). When contradicted by another doctor, a treating physician's opinion may only be rejected if the ALJ provides "specific and legitimate" reasons supported by substantial evidence in the record. Id.

An ALJ "has a special duty to fully and fairly develop the record and to assure that claimant's interests are considered." Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). Pursuant to 20 C.F.R. § 416.912(e), the Administration "will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, [or] the report does not contain all the necessary information . . . ." See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)(noting that "[i]f the ALJ thought he needed to know the basis of [the doctor's] opinions in order to evaluate them, he had a duty to conduct an appropriate inquiry").

In his decision, the ALJ appears to reject the opinion of Dr. Swati Thacker, M.D., plaintiff's treating psychiatrist, because plaintiff "usually discusses family events rather than mental issues" at her mental health appointments, and "Dr. Thacker does not record objective findings other than an occasional 'no evidence of psychosis' and [plaintiff] [i]s somatic and ha[s] difficulty assuming responsibility." (A.R. 530.) The ALJ specifically notes that he does not give significant weight to Dr. Thacker's May 12, 2008 mental health assessment form "[f]or the usual reasons pertain[ing] to these types of check-marked forms" and because "the assessment is not supported by Dr. Thacker's treatment notes." (Id.) The ALJ notes that if plaintiff "displayed chronic, out of control behavior during the mental health visits, it would seem reasonable that Dr. Thacker would have documented those incidents. Yet, no unusual behavior is noted, and [the ALJ is] not willing to accept Dr. Thacker's assessment at fact [sic] value." (Id.)

To the extent the ALJ rejects Dr. Thacker's opinion because plaintiff "usually discusses family events rather than mental issues," the ALJ's reasoning is unpersuasive. It appears that plaintiff's family causes her great stress and anxiety, and thus, it is not surprising that she discusses various family matters at her appointments with Dr. Thacker. Further, while it is true that plaintiff does not always discuss her "mental issues" at her appointments, when she does discuss them, they do not appear to be insignificant -- e.g., plaintiff claims, inter alia, that she: sees images before she falls asleep (A.R. 866); sees ghosts in her house (A.R. 892); sees shadows from the corners of her eyes (A.R. 1398, 1426); sees images of faces, rocking horses, and monsters (A.R. 1392); hears people talking to her (A.R. 892); and feels paranoid (A.R. 866, 892), overwhelmed (A.R. 1391, 1415), and stressed (A.R. 1391). Accordingly, in view of the nature of plaintiff's reported "mental issues," the ALJ's reasoning ---- i.e., that plaintiff usually discusses family matters instead of her mental issues ---- cannot constitute a legitimate ground for rejecting Dr. Thacker's opinion.

With respect to the ALJ's contention that Dr. Thacker did not record objective findings in his treatment notes ---- aside from the occasional finding that there was "'no evidence of psychosis' and [plaintiff] was somatic and had difficulty assuming responsibility" (A.R. 530) ---- the ALJ appears to ignore or inaccurately summarize the content of plaintiff's treatment records. See Reddick v. Chater, 157 F.3d 715, 723 (9th Cir. 1998)(reversing and remanding case because ALJ's characterization of the record was "not entirely accurate regarding the content or tone"); see also Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984)(holding that it was error for an ALJ to ignore or misstate competent evidence in the record to justify his conclusion). Contrary to the ALJ's contention, Dr. Thacker did record objective findings beyond those described supra. Significantly, Dr. Thacker noted, inter alia, that plaintiff has major depressive disorder -- recurrent type with psychotic symptoms (A.R. 891), dysthymic disorder (A.R. 1418, 1426, 1432), emotional blunting (A.R. 1426), poor motivation (A.R. 892), poor attention span (id.), "[p]aranoid/persecutory" thought content (A.R. 891), auditory and visual perceptual process disturbances (id.), depressed mood (A.R. 869, 891), sad affect (A.R. 891), anxious mood/affect (A.R. 891), poor frustration tolerance (A.R. 1390), and poor compliance with follow-up (A.R. 1391). Dr. Thacker also noted that plaintiff is emotional (A.R. 1392), passive aggressive (A.R. 1394, 1412), codependent (A.R. 1394), socially withdrawn (A.R. 1421), childlike (A.R. 1391), "wants someone to look after her" (id.), and "socially withdraws herself over any conflict" (A.R. 1433).*fn3 Thus, to the extent the ALJ attempts to reject Dr. Thacker's findings based on his purported failure to report objective findings, the ALJ's reasoning is unpersuasive and does not constitute a legitimate reason for the wholesale dismissal of Dr. Thacker's treatment records and the objective findings contained therein.*fn4

Lastly, the ALJ's reasons for rejecting Dr. Thacker's May 12, 2008 mental health assessment form ("mental health form") are also, at present, unpersuasive. In the mental health form, Dr. Thacker found that plaintiff has moderate limitations in her ability to make simple work-related decisions and interact appropriately with the public, and marked limitations in her ability to perform all other work related activities.*fn5 Dr. Thacker noted that plaintiff is not a malingerer, has an impairment that can be expected to last for at least 12 months, and "is not able to hold [a] job." (A.R. 1410.) Citing to Young v. Heckler, 803 F.2d 963 (9th Cir. 1986), the ALJ did not give Dr. Thacker's mental health form significant weight because, it was a check- marked form, which was "not supported by Dr. Thacker's treatment notes." (A.R. 530.) While an ALJ may give reduced weight to an opinion when it is brief, conclusory, and/or inadequately supported by the medical record,*fn6 in view of the fact that the ALJ appears to have either ignored or improperly summarized Dr. Thacker's treatment notes, the Court cannot determine whether the ALJ properly reduced the weight he gave to the mental health form.*fn7 Indeed, plaintiff's reported mental issues and Dr. Thacker's treatment notes -- which appear to contain multiple reports of "unusual behavior" -- may very well support the restrictions contained in Dr. Thacker's mental health form.

Accordingly, the Court finds that the ALJ erred by improperly considering and rejecting Dr. Thacker's treatment notes and the findings and opinions contained therein. On remand, the ALJ should revisit his consideration of Dr. Thacker's opinions and findings, and should the ALJ elect to give them no weight, he should set forth specific and legitimate reasons for so doing that are not based on a mischaracterization of the evidence of record.*fn8 Further, to the extent the ALJ needs to know the basis of Dr. Thacker's opinion, the ALJ should conduct an appropriate inquiry.

II. Remand Is Required.

The decision whether to remand for further proceedings or order an immediate award of benefits is within the district court's discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no useful purpose would be served by further administrative proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. at 1179 ("[T]he decision of whether to remand for further proceedings turns upon the likely utility of such proceedings."). However, where there are outstanding issues that must be resolved before a determination of disability can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate.*fn9 Id. at 1179-81.

Remand is the appropriate remedy to allow the ALJ the opportunity to remedy the above-mentioned deficiencies and errors. See, e.g., Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for further proceedings is appropriate if enhancement of the record would be useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (remand appropriate to remedy defects in the record). On remand, the ALJ must correct the above-mentioned deficiencies and errors and further develop the record as appropriate.*fn10 After doing so, the ALJ may need to reassess plaintiff's RFC, in which case additional testimony from a vocational expert likely will be needed to determine what work, if any, plaintiff can perform.


Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and Order.

IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant.


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