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Nazmy Joseph v. Carolyn J. Colvin*Fn1

May 8, 2013

NAZMY JOSEPH, PLAINTIFF,
v.
CAROLYN J. COLVIN*FN1 , ACTING COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM OF DECISION

Plaintiff filed this action seeking reversal of the decision of defendant, the Acting Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits and supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The parties are familiar with the procedural facts, which are summarized in the Joint Stipulation. [See JS 2].Plaintiff alleged that he became disabled on December 28, 2003 due to schizophrenia, paranoid thoughts, and depression. [AR 87]. In an November 2011 written hearing decision on remand that constitutes the Commissioner's final decision in this matter, Administrative Law Judge Tamara Turner- Jones ("ALJ Turner-Jones" or "the ALJ") concluded that plaintiff was not disabled because he could perform alternative work available in significant numbers in the national economy. [Administrative Record ("AR") 392-400; JS 2].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).

Discussion

Compliance with remand order Plaintiff contends that the ALJ did not comply with the order issued in a prior action for judicial review reversing the denial of benefits and remanding this case to defendant for further administrative proceedings. [JS 3-14; AR 411-418]. [See Memorandum of Decision and Judgment filed Dec. 4, 2007 in Nazmy Joseph v. Michael J. Astrue, Case No. EDCV 06-921 ("Joseph I")].

In Joseph I, this Court held that the administrative law judge who presided over that case, ALJ Duncan, erred in silently rejecting the September 2005 opinion of plaintiff's long-time treating psychiatrist, Dr. Ahluwalia, that plaintiff had a diagnosis of schizoaffective disorder and a "guarded" prognosis; that plaintiff's condition "prevents or substantially reduces" on a permanent basis his "ability to work full-time at his "customary job"; and that the onset date was 20 years earlier. [AR 307, 410-418]. The Court also held that ALJ Duncan improperly evaluated plaintiff's psychiatric treatment records, and that ALJ Duncan's faulty evaluation of the medical evidence tainted his credibility determination. [AR 411-418; see AR 11-16].

On remand, the Appeals Council vacated ALJ Duncan's hearing decision, assigned the case to ALJ Turner-Jones for further administrative proceedings and issuance of a new decision. The ALJ conducted a supplemental hearing on March 30, 2011 and issued a new hearing decision. [AR 392-400, 575-600].

In her hearing decision on remand, ALJ Turner-Jones summarized the medical evidence of record, including treatment reports Dr. Ahluwalia, the psychiatrist who treated plaintiff from 1993 through March 2009, and Warris Walayat, M.D., a psychiatrist who treated plaintiff beginning in December 2009 and continuing through the date of the hearing in March 2011. [AR 394-395; see AR 146-220, 268-280, 307-339, 518-523, 524-525, 548-574]. The ALJ's decision on remand fails to comply with the remand order in three respects.

First, like ALJ Duncan, ALJ Turner-Jones the ALJ failed to comment on Dr. Ahluwalia's September 2005 opinion or articulate reasons for rejecting it, which is reversible error irrespective of the failure to comply with the remand order. [See AR 415]. See Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012) (holding that an ALJ's silent rejection of an examining psychologist's opinion that the claimant's "combination of mental and medical problems makes . . . sustained full time competitive employment unlikely" was not harmless error because that opinion was not simply an issue reserved to the Commissioner, but rather is "an assessment, based on objective medical evidence, of [the claimant's] likelihood of being able to sustain full time employment given the many medical and mental impairments [she] faced" and "should have been considered").

Second, the ALJ selectively and erroneously relied on the opinion of the medical expert who testified during the 2006 hearing, Dr. Malancharuvil, a psychologist. He testified that plaintiff's "primary problem" was a personality disorder, as the Commissioner's consultative examiner concluded, rather than a psychotic or schizoaffective disorder, as Dr. Ahluwalia concluded. [AR 396-397]. The ALJ noted that Dr. Malancharuvil "found there was little evidence to support Dr. Ahluwalia's diagnosis of schizoaffective disorder because of the lack of evidence of schizophrenia, and it is apparent that [Dr. Walayat's] diagnoses of paranoid schizophrenia and major depressive disorder are based on the claimant's self-reported history of having been diagnosed as such in the past." [AR 396]. The ALJ concluded that Dr. Malancharuvil's impression of a personality disorder was "better supported" by the record as a whole. [AR 396].

In the remand order, the Court held that ALJ Duncan erred in relying on the same testimony by Dr. Malancharuvil to give minimal weight to Dr. Ahluwalia's findings in her treatment notes. Specifically, ALJ Duncan erred in relying on Dr. Malancharuvil's characterization of the treatment notes as "meager, with only a few sentences, and no thorough examinations and as evidence of a ...


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