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Lambert v. Berryhill

United States District Court, C.D. California, Western Division

May 24, 2017

JOHN LAMBERT, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OF DECISION

          ANDREW J. WISTRICH, United States Magistrate Judge

         Plaintiff seeks reversal of the decision of defendant, the Commissioner of the Social Security Administration (the “Commissioner”), denying plaintiff's application for disability insurance benefits and supplemental security income 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. [See JS 2-4]. In a September 12, 2014 written hearing decision that constitutes the Commissioner's final decision, an Administrative Law Judge (“ALJ”) found that plaintiff had severe impairments consisting of depressive disorder, anxiety, and a history of dyslexia. The ALJ determined that plaintiff's impairments did not meet or equal a listed impairment, and that plaintiff retained the residual functional capacity (“RFC”) to perform work at all exertional levels with nonexertional limitations restricting him to simple routine tasks requiring only incidental contact with the public and minimal interaction with coworkers, meaning that plaintiff could work side by side or alone, but that verbal collaboration should not be the primary component of the job. [Administrative Record (“AR”) 29-30]. The ALJ found that plaintiff has no past relevant work, but that his RFC did not preclude him from performing jobs that exist in significant numbers in the national economy. Accordingly, the ALJ found plaintiff not disabled at any time from March 1, 2003, his alleged onset date, through the date of the ALJ's decision. [AR 32-34].

         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. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015); 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) (quoting Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). “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

         Medical opinion evidence

         Plaintiff contends that the ALJ committed reversible error in assessing the opinions of plaintiff's treating psychiatrist, Michael Turek, M.D., of Ventura County Behavioral Health (“VCBH”). [See JS 3-8].

         Dr. Turek completed two mental function assessment forms at the Commissioner's request, one in June 2012 and another in November 2012. [AR 321-324, 346-351]. Dr. Turek said that he began treating plaintiff in March 2012, and that he saw plaintiff one to two months or as needed. Plaintiff's diagnoses were panic disorder with agoraphobia and social phobia. [AR 321, 346-347]. Dr. Turek identified numerous signs and symptoms supporting his diagnoses, including, but not limited to, nervous and anxious behavior; below-average intelligence based on plaintiff's history of special education classes in high school and failure to graduate; fearful, anxious mood; blunted affect; thoughts of suicide; generalized persistent anxiety; feelings of guilt or worthlessness; difficulty thinking or concentrating; emotional withdrawal and isolation; intense and unstable interpersonal relationships; impulsive and damaging behavior; sleep disturbance; and recurrent severe panic attacks. [AR 321-322, 348]. Dr. Turek reported that he had prescribed medications for plaintiff's depression and anxiety, including Prozac, Xanax, Inderal, and Effexor, but that as of November 2012, “[t]he right combination has not been found as [plaintiff's] depression worsens and [he] is now having suicidal thoughts.” [AR 321, 347]. As of November 2012, Dr. Turek opined that plaintiff was markedly or extremely limited in all of the work-related functional abilities rated. [AR 346, 349-350]. He explained that plaintiff had difficulty being around or interacting with others, exhibited poor social skills, suffered from a learning disability, had difficulty following verbal and written instructions, experienced severe panic attacks when out in public, was unable to maintain focus and concentration, was easily distracted, was unable to deal with work pressures and “becomes agitated, ” and could not (and did not) handle his own funds. [AR 323, 346]. Dr. Turek said that plaintiff required ongoing psychiatric treatment for symptoms of depression and anxiety, and that without treatment plaintiff faced an increased risk of decompensation and hospitalization. [AR 323, 347].

         In general, “[t]he opinions of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant.” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)); see Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). A treating physician's opinion is entitled to greater weight than those of examining or non-examining physicians because “treating physicians are employed to cure and thus have a greater opportunity to know and observe the patient as an individual . . . .” Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001) (quoting Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996) and citing Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188); see 20 C.F.R. §§ 404.1502, 404.1527(c)(2), 416.902, 416.927(c)(2). An examining physician's opinion, in turn, generally is afforded more weight than a non-examining physician's opinion. Orn, 495 F.3d at 631.

         When a treating physician's medical opinion as to the nature and severity of an individual's impairment is well-supported and not inconsistent with other substantial evidence in the record, that opinion must be given controlling weight. Orn, 495 F.3d at 631-632; Edlund, 253 F.3d at 1157; SSR 96-2p, 1996 WL 374188 at *1-2. A treating physician's opinion that is contradicted by substantial evidence in the record, such as the opinion of an examining physician based on independent clinical findings, is not entitled to controlling weight; however, that opinion is “still entitled to deference” and should be evaluated using the factors set forth in the Commissioner's regulations. Orn, 495 F.3d at 632 (quoting SSR 96-2p at 4); see Edlund, 253 F.3d at 1157; 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).[1]

         The ALJ must provide clear and convincing reasons, supported by substantial evidence in the record, for rejecting an uncontroverted treating source opinion. If contradicted by that of another doctor, a treating or examining source opinion may be rejected for specific and legitimate reasons that are based on substantial evidence in the record. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Tonapetyan, 242 F.3d at 1148-1149; Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995).

         The ALJ rejected Dr. Turek's conclusions on the ground that they “are eroded by the sporadic treatment history, and [by] the inconsistencies between the opinions and the progress notes showing that the claimant responded well to treatment when consistent.” [AR 32]. Those reasons ...


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