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Fernando Gutierrez v. Michael J. Astrue

August 31, 2011

FERNANDO GUTIERREZ,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Carla Woehrle United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

I. SUMMARY

This matter is before the Court for review of the Social Security Commissioner's decision denying Plaintiff's application for Disability Insurance Benefits and Supplemental Security Income under Titles II and XVI of the Social Security Act. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the undersigned may handle the case. The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. Plaintiff and Defendant have filed their pleadings (Joint Stipulation For Social Security Case), and Defendant has filed the certified transcript of record. After reviewing the matter, the Court concludes that the Commissioner's decision should be remanded.

II. BACKGROUND

Plaintiff Fernando Gutierrez ("Plaintiff") applied for Disability Insurance Benefits and Supplemental Security Income ("SSI") on April 16, 2008, and again for SSI on July 16, 2008, alleging inability to work since June 29, 2007. Administrative Record ("AR") 105-120. An administrative hearing was held on February 17, 2010. AR 23-47. On March 22, 2010, an Administrative Law Judge ("ALJ") determined that Plaintiff was not disabled within the meaning of the term under the Social Security Act. AR 9-18. Following the Appeals Council's denial of Plaintiff's request for a review of the hearing decision, Plaintiff filed an action in this Court. AR 1-8. After reviewing the matter, the Court finds that the Commissioner's decision should be reversed and remanded.

III. DISCUSSION

Plaintiff challenges the decision on the grounds that, first, the ALJ improperly disregarded Plaintiff's treating psychologist's opinion in the ALJ's determination of Plaintiff's residual functional capacity ("RFC"), and, second, that the ALJ failed to properly account for Plaintiff's severe obesity in the five-step sequential evaluation process for determining whether a claimant has a disability. Plaintiff alleges legal error by the ALJ on both issues. For the reasons discussed below, the Court concludes that while Plaintiff's first claim has merit it amounts to harmless error, and that the second claim of error also has merit, but requires reversal and remand for further proceedings.

A. ISSUE NO. ONE:

Plaintiff first claims that the ALJ improperly gave little weight to the opinion of the treating psychologist in the determination that Plaintiff's mental limitations notwithstanding, he retained sufficient RFC to engage in work that exists in significant numbers in the national economy. Defendant argues that the ALJ's disregard of the treating psychologist's opinion was legitimate.

The Social Security Regulations set forth a five-step sequential evaluation process for determining whether a claimant is disabled. 20 C.F.R. § 404.1520; see Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see Social Security Ruling ("SSR") 82-62. If the ALJ determines that a claimant's impairment is severe in step two, then the ALJ must determine in step three whether a claimant meets or exceeds a listed impairment. 20 C.F.R. §§ 404.1525, 404.1526, 416.925, 416.926.

A claimant's treating doctors' opinions usually carry substantial weight in the step three determination because the treating professional is hired to cure and has the opportunity to come to know the claimant's impairments in detail. Valentine v. Comm'r of Soc. Sec., 574 F.3d 685, 692 (9th Cir. 2009); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002). However, the ALJ may disfavor or completely disregard the opinion of a treating physician for clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). In so doing, the ALJ must specifically enumerate the reasons with the support of substantial evidence in the record. Id. at 830-31; see also Orn v. Astrue, 495 F.3d 625, 631-2 (9th Cir. 2007); Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). The ALJ may disregard a treating physician's conclusory opinions as well as those not supported by the administrative record as a whole. Batson v. Comm'r of Soc. Sec., 359 F.3d 1190, 1195 (9th Cir. 2004); Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). If another doctor contradicts the treating physician's opinion, the ALJ may reject that opinion, but, again, only with legitimate reasons based on substantial evidence in the record. Lester, 81 F.3d at 830-31. The ALJ meets the standard to disregard the treating physician's opinion by "setting out a detailed summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Embry v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988).

Here, the ALJ "gave little weight" to the opinion of the treating psychologist, Arturo Fiero, Ph.D. AR 16. Dr. Fiero opined in his concluding report that Plaintiff fit the "clinical profile of a chronically disabled [person] w[ith] a permanent impairment." AR 271. The ALJ asserted in his decision that Dr. Fierro's opinion was " unsupported by the longitudinal record or by Dr. Fierro's own treatment notes." AR 16. The ALJ offered no other support for his conclusion regarding Dr. Fierro's opinion and therefore did not meet the standard of "a detailed summary of the facts and conflicting clinical evidence." Embry, 849 F.2d at 421. The ALJ's failure to set forth specific facts that led to clear and convincing reasons for disregarding Dr. Fierro's opinion constitutes legal error. However, in light of Dr. Fierro's treatment notes and the treatment notes and conclusions of Plaintiff's two other treating mental health professionals, Dr. Simon Chin, M.D., who is a psychiatrist, and Dr. Rhoda Bernardez, M.D., also a psychiatrist, the ALJ's conclusion would have been the same. AR 213-20, 351-65.

Dr. Fierro's treatment notes, or his longitudinal record, characterize Plaintiff as a patient on the mend. AR 338-49. When Plaintiff's treatment began in October of 2007, Dr. Fierro observed that his relations with his family were "dysfunctional," he was "depressed," subject to "panic attacks," in physical pain, and generally not doing well. AR 346-48. By January 15, 2008, after four sessions, Dr. Fierro reported that "P[atien]t is recovering from physical disability, [and] needs time off to recover." AR 341. The same progress report noted that Plaintiff had never been hospitalized for a psychiatric condition, that while his family relationships were "impaired," he was not having suicidal or homicidal ideation, not subject to binging or purging, not having psychotic symptoms, and not engaging destructive behavior toward himself, others, or towards property. The report noted that Plaintiff's Global Assessment of Functioning score ("GAF"), a widely used general metric of mental health, was 41, indicating fairly serious difficulties, but the report also noted that within the past year, Plaintiff's GAF had been at 69, indicating mild symptoms. Id. Furthermore, the treatment notes from the same day indicated a "high" capacity "to engage in and benefit from" treatment. AR 342.

Over the next four months, Plaintiff appeared to show improvement. His capacity to benefit from treatment remained "high." AR 338-40. He was helping out a friend stricken with AIDS, for whom he said he felt "compassion." AR 338-39. He said he wanted ...


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