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Gregory Clark v. Michael J. Astrue


May 24, 2012


The opinion of the court was delivered by: Alicia G. Rosenberg United States Magistrate Judge


Plaintiff Gregory Clark filed this action on April 18, 2011. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on June 9, 2011 and February 27, 2012. (Dkt. Nos. 8, 15.) On February 16, 2012, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The court has taken the matter under submission without oral argument.

Having reviewed the entire file, the court remands this matter to the Commissioner for proceedings consistent with this Opinion.


On July 24, 2007, Clark filed an application for supplemental security income ("SSI"), alleging a disability onset date of July 1, 2006. Administrative Record ("AR") 16, 93-96. The application was denied initially and on reconsideration. AR 16, 64-65. On August 18, 2008, the ALJ conducted a hearing at which Clark, his daughter, and a vocational expert testified. AR 44-63. On November 25, 2008, the ALJ issued a decision denying benefits. AR 13-24. On February 19, 2009, March 24, 2009, April 1, 2009, and July 6, 2010, Clark submitted additional evidence to the Appeals Council. AR 5, 434-594. On January 10, 2011, the Appeals Counsel denied Clark's request for review. AR 2-5. This action followed.


Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence, or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

"Substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523. In determining whether substantial evidence exists to support the Commissioner's decision, the court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than one rational interpretation, the court must defer to the Commissioner's decision. Moncada, 60 F.3d at 523.


A. Disability

A person qualifies as disabled, and thereby eligible for such benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003) (citation and quotation marks omitted).

B. The ALJ's Findings

The ALJ found that Clark had the severe impairments of depression and personality disorder. AR 18. Clark had the residual functional capacity to perform a full range of work at all exertional levels. He had "mild-to moderate limitations in understanding and remembering tasks, sustaining concentration and persistence, socially interacting with the general public and adapting to workplace changes." Id. Clark has no past relevant work, but there are jobs that exist in significant numbers in the national economy that Clark can perform such as janitor, assembler, packager and inspector. AR 22-23.

C. Treating Psychiatrist

Clark apparently filed a subsequent application for SSI benefits on February 27, 2009. On July 15, 2011, a different ALJ found that Clark was disabled as of February 27, 2009, the date of that application. (Exh. 1 at 5 to JS, Dkt. No. 14-1.)*fn1 The ALJ found Clark had the severe impairments of post-traumatic stress disorder, panic disorder, antisocial traits and back injury. Id. at 7. With respect to Clark's mental restrictions, the ALJ found Clark had "moderate impairment in attention and concentration occurring as much as 1/2 of an 8-hour day and that would cause the claimant to need prompting to get back on task at least hourly, and is limited to simple and repetitive tasks with no contact with the public or co-workers and can only do solitary work." Id. The ALJ relied upon the opinions of Clark's treating psychiatrists, namely, an opinion dated September 8, 2009 by Dr. Bogost and an opinion dated April 22, 2011 by Dr. Osden, who treated Clark since March 2011. Id. at 7-8. That ALJ found Clark's statements to be "generally credible." Id. at 8.

In this case, the ALJ's decision that forms the basis of the complaint was dated November 25, 2008. AR 13. Based on the record before him, the ALJ stated Clark "has not received treatment by a psychiatrist, psychologist or other mental health professional." AR 22.

Clark subsequently submitted to the Appeals Council additional medical records for the period July 2008-June 2010, and a Mental Work Restriction Questionnaire from Dr. Bogost dated March 19, 2009. AR 5, 569-77. The Appeals Council made the submissions part of the record. AR 5. On the Questionnaire, Dr. Bogost indicated Clark had been treated by Antelope Valley Mental Health since August 1, 2008, and specifically by Dr. Bogost since October 23, 2008. AR 571; see AR 457-59 (treatment notes dated October 2008 -February 2009).

The Appeals Council gave Dr. Bogost's opinion "no weight" because it was "unsupported by any objective clinical findings or test results."*fn2 AR 3.

Clark argues that "the only issue in this case is how early the treatment notes support disability." (JS at 5.) Clark contends the court should credit as true Dr. Bogost's March 2009 opinion.

"When the Appeals Council denies a request for review, it is a non-final agency action not subject to judicial review because the ALJ's decision becomes the final decision of the Commissioner." Taylor v. Comm'r of SSA, 659 F.3d 1228, 1231 (9th Cir. 2011). The reviewing court's role is "to determine whether, in light of the record as a whole, the ALJ's decision was supported by substantial evidence and was free of legal error." Id. at 1232 (citing Ramirez v. Shalala, 8 F.3d 1449, 1451-54 (9th Cir. 1993)). In doing so, the reviewing court considers both the ALJ's decision and the additional material submitted to the Appeals Council. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1030 n.2 (9th Cir. 2007).

An opinion of a treating physician is given more weight than the opinion of non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). To reject an uncontradicted opinion of a treating physician, an ALJ must state clear and convincing reasons that are supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). When a treating physician's opinion is contradicted by another doctor, "the ALJ may not reject this opinion without providing specific and legitimate reasons supported by substantial evidence in the record. This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Orn, 495 F.3d at 632 (citations and quotation marks omitted). "When there is conflicting medical evidence, the Secretary must determine credibility and resolve the conflict." Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002) (citation and quotation marks omitted).

Dr. Bogost diagnosed post traumatic stress disorder (chronic) and assessed a Global Assessment of Functioning ("GAF") of 40.*fn3 AR 577. Clark suffered from depression, auditory hallucinations, blackouts, mood swings, insomnia, paranoia, anxiety, anger, and a constrictive affect. AR 571. Clark was severely impaired in his ability to remember work like procedures, understand and remember short and simple instructions, carry out short and simple instructions, maintain attention for 2 hour segments, maintain regular attendance and be punctual, work in coordination with or in close proximity to other people without being distracted by them, make simple work-related decisions, complete a normal work day without interruptions from psychologically based symptoms, perform at a consistent pace without an unreasonable number of and length of rest periods, get along with co-workers or peers without distracting them or exhibiting behavioral extremes, respond appropriately to changes in a work setting, and be aware of normal hazards and take appropriate precautions. AR 571-72. Clark was markedly impaired in his ability to sustain an ordinary routine without special supervision, and accept instructions and respond appropriately to criticism from supervisors. Id. Clark's prognosis was "poor." Id.

Dr. Bogost noted that, at the time, there was no "psych testing done by Antelope Valley Mental Health." Id. Dr. Bogost cited, however, the results of a mental status examination. AR 575. The Antelope Valley Mental Health records contain a mental status evaluation by social workers dated August 2008.*fn4 AR 439-40.

This matter must be remanded for the ALJ to consider Dr. Bogost's opinion and the mental health records, including mental status examinations, for the period beginning August 2008.*fn5 The ALJ's decision, which was predicated on the absence of any treatment by a psychiatrist, psychologist or other mental health professional, is no longer supported by substantial evidence in light of the records submitted to the Appeals Council.

D. Credibility

Clark contends the ALJ failed to provide clear and convincing reasons to reject his subjective complaints.

"To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis." Lingenfelter, 504 F.3d at 1035-36.

At step one, "the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 'which could reasonably be expected to produce the pain or other symptoms alleged.'" Id. (citing Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). The ALJ found that Clark's "medically determinable impairments could reasonably be expected to cause the alleged symptoms." AR 21.

"Second, if the claimant meets this first test, and there is no evidence of malingering, 'the ALJ can reject the claimant's testimony about the severity of [the claimant's] symptoms only by offering specific, clear and convincing reasons for doing so.'" Lingenfelter, 504 F.3d at 1036 (citations omitted). "In making a credibility determination, the ALJ 'must specifically identify what testimony is credible and what testimony undermines the claimant's complaints.'" Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citation omitted). "If the ALJ's credibility finding is supported by substantial evidence in the record, we may not engage in second-guessing." Thomas, 278 F.3d at 958-59 (citing Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)).

Here, the ALJ made no finding of malingering. The ALJ found that Clark's "statements concerning the intensity, persistence and limiting effects of [his] symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment." AR 21. The ALJ discounted Clark's credibility for at least three reasons: (1) the objective medical evidence in the record did not support the degree of Clark's complaints; (2) minimal treatment; and (3) non-compliance with treatment. AR 22.

Again, the ALJ's assessment of credibility as to mental restrictions was predicated in material part on the absence of any treatment by a psychiatrist, psychologist or other mental health professional. AR 22. The new evidence submitted to the Appeals Council bears on the ALJ's findings as to the lack of objective medical evidence, minimal treatment and noncompliance. The new evidence includes mental status examinations and progress notes from Clark's individual therapy sessions through the Antelope Valley Mental Health Center dating from August 2008. AR 435-40, 444-60.

Remand is appropriate so the ALJ may consider the new evidence and determine whether it affects his findings as to Clark's credibility.

E. Lay Witness Testimony

Clark contends the ALJ erred by failing to give "proper reasons" for rejecting the third party statement of Clark's daughter.

"In determining whether a claimant is disabled, an ALJ must consider lay witness testimony concerning a claimant's ability to work." Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006). "When an ALJ discounts the testimony of lay witnesses, 'he [or she] must give reasons that are germane to each witness.'" Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (citation omitted).

The ALJ stated that he had "considered the allegations" in the daughter's third party function reports and her testimony at the hearing. AR 22. The ALJ discounted the daughter's allegations, which were similar to the allegations in Clark's function report, for generally the same reasons he gave for discounting Clark's credibility. AR 22. The ALJ found the daughter's allegations were not supported by medical evidence and were inconsistent with Clark's treatment. Id.

On remand, the ALJ should likewise consider the lay witness statements in light of the new evidence submitted to the Appeals Council for the period beginning August 2008.


ORDER IT IS HEREBY ORDERED that this matter is remanded for further proceedings consistent with this Opinion.

IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel.

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