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Bria Xue Vang v. Michael J. Astrue

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 28, 2012

BRIA XUE VANG, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff, who is represented by counsel, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's applications for Disability Insurance Benefits under Title II of the Social Security Act ("Act") and Supplemental Security Income benefits under Title XVI of the Act.*fn1 In his motion for summary judgment, plaintiff contends that the administrative law judge ("ALJ") in this case erred by: (1) finding that plaintiff's medically determinable impairment of post traumatic stress disorder ("PTSD") was not a "severe" mental impairment within the meaning of the Act; (2) rejecting the uncontradicted medical opinion of examining psychiatrist Les Kalman, M.D., Psy. D. ("Dr. Kalman") regarding the functional limitations that arose from plaintiff's mental impairments, including PTSD and depression, without providing clear and convincing reasons for doing so; (3) formulating a residual functional capacity for plaintiff that did not account for plaintiff's mental functional limitations, an argument contingent on the success of the first two arguments; (4) not applying Rule 202.02 of the Medical-Vocational Guideline, see 20 C.F.R. Part 404, Subpart P, Appendix 2, to find plaintiff disabled; (5) discounting plaintiff's credibility without providing clear and convincing reasons for doing so; and (6) failing to provide sufficient reasons for rejecting third-party lay witness statements about plaintiff's limitations provided by plaintiff's family members. (See generally Pl.'s Memo. of P. & A. In Supp. of Mot. for Summ. J. at 1, Dkt. No. 13.) The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment (Dkt. No. 14.)

For the reasons stated below, the court grants plaintiff's motion for summary judgment in part, denies the Commissioner's cross-motion for summary judgment, and remands this matter for further proceedings. Specifically, the court concludes that the ALJ's finding at step two of the five-step sequential analysis that plaintiff's PTSD was not a "severe" impairment is not supported by substantial evidence. Relatedly, the ALJ did not provide clear and convincing reasons for rejecting Dr. Kalman's examining opinion that found functional limitations arising from plaintiff's PTSD and depression. As a result of these errors, the residual functional capacity assessed by the ALJ is materially deficient. Accordingly, the court remands this matter for further proceedings. The court does not reach plaintiff's additional assignments of error because the error at step two infected the formulation of plaintiff's residual functional capacity and likely impacted the manner in which the ALJ evaluated plaintiff's credibility and the third-party statements in the record. The ALJ should reconsider plaintiff's remaining allegations of error on remand.

I. BACKGROUND*fn2

A. Procedural History

On January 4, 2008, plaintiff protectively filed an application for Social Security Income benefits, alleging a disability onset date of January 1, 2003. (Admin. Tr. ("AT") 109.) Plaintiff alleged conditions of asthma, breathing problems, heart problems, gout, and arthritis. (See id.; see also AT 129.) On January 17, 2008, plaintiff filed an application for Disability Insurance Benefits, alleging an onset date of June 1, 2005. (AT 113.) Plaintiff subsequently amended his onset date to October 31, 2007. (AT 117.)

The Social Security Administration denied plaintiff's applications initially and upon reconsideration. (AT 42-43, 47-48.) Plaintiff requested a hearing before an ALJ, and the ALJ conducted a hearing regarding plaintiff's claim on March 17, 2010. (AT 28-41, 62-65.) Plaintiff was represented by counsel at the hearing and testified through an interpreter because of his limited facility with the English language. It appears that plaintiff testified in a Hmong dialect. A vocational expert also testified at the hearing.

In a written decision dated April 8, 2010, the ALJ denied plaintiff's applications for benefits on the basis of a finding at step four of the five-step sequential analysis that plaintiff was capable of returning to his past work as a fast food worker and janitor.*fn3 (AT 22.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (See AT 1-3.) Plaintiff subsequently filed this action.

B. Summary of the ALJ's Findings

The ALJ conducted the required sequential evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since October 31, 2007, the amended alleged disability onset date. (AT 19.)

At step two, the ALJ concluded that plaintiff had the following severe impairments: "gout, chronic heart failure, asthma, and arthritis." (AT 19.) However, the ALJ also concluded at step two of the analysis that plaintiff's "medically determinable mental impairment of [PTSD] does not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and is therefore nonsevere." (Id.) In finding that plaintiff's PTSD was not severe, the ALJ gave "little weight" to, and essentially rejected outright, Dr. Kalman's examining psychiatrist opinion that identified mental limitations caused by plaintiff's PTSD and depression. (Id.; see also AT 342-50.)

At step three, the ALJ determined that plaintiff's impairments, whether alone or in combination, did not meet or medically equal any impairment listed in the applicable regulations. (AT 20.) The ALJ further determined that plaintiff had the residual functional capacity ("RFC") to perform light exertional work, with some functional exceptions. (Id.) Specifically, the ALJ found:

[The claimant] has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can kneel, crouch, or crawl occasionally; and must avoid concentrated exposure to heights, moving machinery, dust, fumes, and smoke.

(Id.)*fn4 This RFC reflected no functional limitations as a result of plaintiff's alleged mental impairments. In making this finding, the ALJ discounted the credibility of plaintiff's statements, finding that plaintiff's "statements concerning the intensity, persistence and limiting effects of [his] symptoms are not credible to the extent they are inconsistent with finding above [RFC] assessment." (AT 21.) The ALJ further rejected the lay witness statements provided by plaintiff's children. (Id.)

At step four, the ALJ found that plaintiff was capable of performing past relevant work as a fast food worker and a janitor. (AT 22.) The ALJ based this finding on the testimony of the vocational expert who testified at the hearing. Because of the finding at step four, the ALJ did not reach step five of the inquiry.

II. LEGAL STANDARDS

The court reviews the Commissioner's decision to determine whether it is (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "'Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690. "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222; see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); accord Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).

III. DISCUSSION

Plaintiff argues that the ALJ erred at step two by: (1) finding that plaintiff's PTSD was not a severe impairment; and (2) rejecting the uncontradicted psychiatric opinion of Dr. Kalman, who found significant functional limitations arising from plaintiff's PTSD and depression. For the reasons stated below, the undersigned finds plaintiff's argument persuasive.

At step two of the sequential evaluation, the ALJ determines whether the claimant has a medically "severe" impairment or combination of impairments. See 20 C.F.R. § 404.1520(a)(4)(ii); accord 20 C.F.R. § 416.920(a)(4)(ii); see also Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996). An impairment is severe when it significantly limits a claimant's "physical or mental ability to do basic work activities" and lasted or is expected to last "for a continuous period of at least 12 months." See 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1521(a), (c), 404.1509; accord 20 C.F.R. §§ 416.920(a)(4)(ii), (c), 416.921(a), 416.909. Basic work activities refer to "the abilities and aptitudes necessary to do most jobs."*fn5 Although centered around the term "severe," "the step-two inquiry is a de minimis screening device to dispose of groundless claims." See Smolen, 80 F.3d at 1290 (citing Bowen, 482 U.S. at 153-54). The purpose is to identify "at an early stage those claimants whose medical impairment is so slight that it is unlikely they would be disabled even if their age, education, and experience were taken into account." Bowen, 482 U.S. at 153. "An impairment or combination of impairments may be found not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citations and quotation marks omitted).

Because the ALJ's rejection of Dr. Kalman's opinion is integral to the ALJ's finding at step two, the ALJ's finding implicates the rules regarding the rejection of medical opinions. The medical opinions of three types of medical sources are recognized in social security cases: "(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, 81 F.3d at 830. Generally, a treating physician's opinion should be accorded more weight than opinions of doctors who did not treat the claimant, and an examining physician's opinion is entitled to greater weight than a non-examining physician's opinion. Id. Where a treating or examining physician's opinion is uncontradicted by another doctor, the Commissioner must provide "clear and convincing" reasons for rejecting the treating physician's ultimate conclusions. Id. If the treating or examining doctor's medical opinion is contradicted by another doctor, the Commissioner must provide "specific and legitimate" reasons for rejecting that medical opinion, and those reasons must be supported by substantial evidence in the record. Id. at 830-31; accord Valentine, 574 F.3d at 692.

Here, the ALJ found that the plaintiff had a medically determinable impairment of PTSD. (AT 19.) Plaintiff's conditions of PTSD and depression were brought sharply into focus by Dr. Kalman, who reviewed plaintiff's medical records and also conducted a one-day psychiatric examination of plaintiff. (See AT 342-50.) Dr. Kalman reported plaintiff's chief complaints as anxiety, PTSD, and depression. (AT 343.) Dr. Kalman described plaintiff's reports that plaintiff "was in the military in Laos during the Vietnam War," and suffers "nightmares and flashbacks to those events." (Id.) Dr. Kalman further stated that plaintiff "also described depression and anxiety related to his physical illnesses," including plaintiff's worries that he might die soon. (Id.) Dr. Kalman diagnosed plaintiff as having clinical disorders of PTSD and an "[a]djustment disorder secondary to general medical condition." (AT 345.) He found that plaintiff had a Global Assessment of Functioning ("GAF") score of 50.*fn6 (Id.) Dr. Kalman further opined that plaintiff's "condition is not expected to improve significantly in the next 12 months." (Id.)

Dr. Kalman also completed a form entitled "Medical Source Statement Concerning the Nature and Severity of an Individual's Mental Impairment." (AT 347-50.) Of the 20 categories of specific mental functional limitations, Dr. Kalman found that plaintiff was not significantly limited in seven categories and mildly limited in ten categories. However, Dr. Kalman found that plaintiff was moderately limited in his "ability to accept instructions and to respond appropriately to criticism from supervisors." (AT 349.) Dr. Kalman further found that plaintiff was markedly limited in his ability to: (1) "understand and remember detailed (3 or more steps) instructions or tasks which may or may not be repetitive"; and (2) "carry out detailed (3 or more steps) instructions or tasks which may or may not be repetitive." (AT 348.) Dr. Kalman also noted that the following work-related stressors would increase the level of plaintiff's impairment beyond the impairments noted above in the form: "Unruly, demanding or disagreeable customers even on an infrequent basis"; "Production demands or quotas"; "A demand for precision"; "A need to make quick and accurate, independent decisions in problem solving on a consistent basis"; and "A need to make accurate, independent decisions in problem solving on a consistent basis." (AT 349.) Dr. Kalman opined that plaintiff's medically determinable impairments were sufficiently severe that plaintiff would be unable to complete a workday in a full-time work setting approximately twice per month. (AT 350.)

After reviewing the record, including Dr. Kalman's opinion and plaintiff's testimony regarding his mental limitations, the ALJ found that plaintiff's PTSD was not a severe impairment.*fn7 The ALJ provided the same two reasons for finding that plaintiff's PTSD was not a severe impairment and for rejecting Dr. Kalman's uncontradicted medical opinion, stating:

The claimant's medically determinable mental impairment of [PTSD] does not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and is therefore nonsevere. This conclusion is supported by the claimant's testimony that his mental condition is due to physical problems. The evidence also suggests that the claimant's PTSD is stable (see Exhibit 13F/5). Given this evidence, the undersigned gives little weight to the opinion of a psychiatric evaluator who assigned the claimant a [GAF] score of 50 and concluded that the claimant's ability to understand, remember, and carry out detailed tasks was markedly limited (Exhibit 14F).

(AT 19.)

The undersigned addresses in turn the ALJ's two reasons supporting his severity finding and rejection of Dr. Kalman's medical opinion.*fn8 The undersigned notes that because Dr. Kalman's examining medical opinion was not contradicted, the ALJ was required to provide "clear and convincing" reasons for rejecting that opinion.

First, the ALJ reasoned that "the claimant's testimony that his mental condition is due to physical problems." (AT 19.) It appears that the ALJ relied on the following portion of plaintiff's testimony translated by the interpreter:

Q. How does the post-traumatic stress disorder prevent you from working? . . . .

A . Well, I think that's because the illness, my illness getting worse and I was -- too much worrying about my illness. So, that's the depression coming on after.

Q. So, the mental problems are related to your physical problems, is that right?

A. That's right. It, it's caused by the illness.

Q. All right. I don't have any more questions. . . .

(AT 37-38.)

At the outset, the undersigned notes that it is not clear what the ALJ intended to convey by the statement that "the claimant's testimony that his mental condition is due to physical problems," and the ALJ did not further explain this comment in the decision. The Commissioner attempts to supplement or clarify the ALJ's reasoning on appeal, asserting that "a feature of PTSD is the exposure to an extreme traumatic stressor or event." (Def.'s Opp'n & Cross-Motion for Summ. J. at 7.)*fn9 The implication of the Commissioner's argument-albeit not expressly asserted by the ALJ in the written decision being reviewed-appears to be that if plaintiff's claimed PTSD was due to his physical impairments and not a traumatic stressor or event, plaintiff could not have suffered from PTSD. Setting aside the fact that Dr. Kalman's report specifically identified plaintiff's experience in the Vietnam War as the reported basis of plaintiff's nightmares and flashbacks substantiating the diagnosis of PTSD, the Commissioner's argument fundamentally fails because the ALJ actually found that plaintiff had a "medically determinable mental impairment" of PTSD based on the medical evidence.*fn10 (AT 19.) The Commissioner's construction of the ALJ's decision necessarily relies on the position that plaintiff never actually suffered from diagnosable PTSD, but the ALJ found, to the contrary, that the medical evidence supported a conclusion that plaintiff suffered from PTSD.

Additionally, the above-quoted plaintiff's testimony is ambiguous. Plaintiff assented to the ALJ's question as to whether plaintiff's mental problems were "related" to his physical problems. However, plaintiff then asserted that his mental problems were "caused by the illness," and it is unclear what plaintiff meant by "the illness." The ALJ did not ask any follow-up questions in an attempt to clarifying plaintiff's comment regarding causation. The ambiguity in plaintiff's testimony regarding his mental impairments is consistent with Dr. Kalman's finding that plaintiff's "insight into his mental illness was poor." (AT 344.)

Moreover, the ALJ's reliance on plaintiff's ambiguous testimony does not provide a clear and convincing reason for rejecting Dr. Kalman's opinion regarding plaintiff's functional limitations caused by PTSD and depression. As stated above, the ALJ's reasoning is not clear at all, and plaintiff's ambiguous testimony does not support rejection of the psychiatric opinion. Furthermore, the ALJ's reasoning is not directed to any specific aspect of Dr. Kalman's opinion. Without more, the undersigned cannot conclude that the ALJ provided clear and convincing reasons for rejecting Dr. Kalman's examining opinion.

Second, the ALJ made his step two finding regarding PTSD, and also rejected Dr. Kalman's opinion, on the grounds that "[t]he evidence also suggests that the claimant's PTSD is stable." (AT 19.) The ALJ cites a February 2, 2004 progress note from San Joaquin General Hospital's Ambulatory Care Services department, which was prepared by a physician's assistant rather than a physician. In its entirety, the relevant note states: "PTSD stable." (AT 324.) The physician's assistant provided no explanation of this remark, and the ALJ cited no additional evidence either supporting this finding or providing context for this finding.*fn11 In short, this terse and unexplained treatment note prepared by a physician's assistant does not constitute substantial evidence supporting the ALJ's finding that plaintiff's PTSD was not severe. Moreover, this conclusory and vague treatment note falls well-short of a clear and convincing reason that supports the rejection of an examining psychiatrist's medical opinion.

Based on the foregoing, the ALJ's finding that plaintiff's PTSD was not severe within the meaning of the Act is not supported by substantial evidence. Additionally, the ALJ's reasons for rejecting Dr. Kalman's opinion are far from clear and convincing. Thus, the undersigned concludes that Dr. Kalman's opinion substantiates that plaintiff's PTSD and depression are more than slight abnormalities and pass the de minimis screening at step two. Accordingly, the undersigned grants plaintiff's motion for summary judgment in part. The undersigned concludes that a remand of this matter to the agency is appropriate because the ALJ will be required reassess plaintiff's PTSD and plaintiff's depression past step two of the analysis, including reformulation of plaintiff's RFC to include a mental component. The ALJ's credibility determination and assessment of the third-party statements in the record will likely be impacted by the addition of a severe mental impairment or impairments.

IV. CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment (Dkt. No. 13) is granted in part, and this matter is remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

2. The Commissioner's cross-motion for summary judgment (Dkt. No. 14) is denied.

3. The Clerk of Court is directed to enter judgment in favor of plaintiff. IT IS SO ORDERED.


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