MARGARET A. NAGLE, Magistrate Judge
Plaintiff filed a Complaint on May 31, 2012, seeking review of the denial of plaintiff's application for a period of disability, disability insurance benefits ("DIB"), and supplemental security income ("SSI"). On June 15, 2012, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. On March 7, 2013, a settlement conference was held before the undersigned United States Magistrate Judge, but no settlement was reached. On June 27, 2013, the parties filed a Joint Stipulation in which: plaintiff seeks an order reversing the Commissioner's decision and remanding this case for the payment of benefits or, alternatively, for further administrative proceedings; and the Commissioner requests that her decision be affirmed or, alternatively, remanded for further administrative proceedings. The Court has taken the parties' Joint Stipulation under submission without oral argument.
Plaintiff filed an application for a period of disability and DIB on February 19, 2009, and she filed an application for SSI on January 29, 2010. (Administrative Record ("A.R.") 13.) Plaintiff, who was born on January 23, 1963 (A.R. 18), claims to have been disabled since May 3, 2008, due to schizophrenia and bipolar disorder (A.R. 81, 90). Plaintiff has past relevant work experience as a parking lot attendant, sales clerk, hotel customer service clerk, and cashier checker. (A.R. 18.)
After the Commissioner denied plaintiff's claim initially and upon consideration, plaintiff requested a hearing. (A.R. 13.) On September 17, 2010, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Michael D. Radensky (the "ALJ"). (Id.) Vocational expert David A. Rinehart also testified. (Id.) On October 29, 2010, the ALJ denied plaintiff's claim (A.R. 13-20), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 1-3). That decision is now at issue in this action.
In his October 29, 2010 decision, the ALJ found that plaintiff met the insured status requirements of the Social Security Act through September 30, 2012, and plaintiff has not engaged in substantial gainful activity since May 3, 2008, the alleged onset date of her disability. (A.R. 15.) The ALJ determined that plaintiff has the severe impairments of mood disorder, posttraumatic stress disorder, and borderline personality disorder. (Id.) The ALJ concluded, however, that plaintiff "does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR [§§] 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926)." (Id.)
After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") "to perform a full range of work at all exertional levels but with the following nonexertional limitations: simple repetitive work and limited public interaction." (A.R. 16.) In making this finding, the ALJ considered: the subjective symptom testimony of plaintiff, which the ALJ found was not entirely credible; the medical opinions and evidence of record.; and the unfavorable May 2, 2008 decision on plaintiff's prior application for DIB and SSI. (A.R. 16-18.) With respect to the medical opinions of record, the ALJ gave little weight to the opinion of plaintiff's treating psychiatrist, Imelda Alfonso, M.D., because the evidence of record did not support her opinions, and she failed to mention plaintiff's noncompliance with her medication treatment. (A.R. 18.) Instead, the ALJ agreed with, and gave "great weight" to, the opinion of the State agency medical consultant that "the evidence of record does not provide a basis for deviating from the May 2, 2008 decision that [plaintiff] is not disabled." (A.R. 18.) The ALJ noted that, in accordance with
Based on plaintiff's age, education,
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole.
Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion."
The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation.
Plaintiff asserts three sources of error. (Joint Stipulation ("Joint Stip.") at 4.) First, plaintiff claims that the ALJ erred in his application of
"The principles of res judicata apply to administrative decisions, although the doctrine is applied less rigidly to administrative proceedings than to judicial proceedings."
In his decision, the ALJ discussed the prior, unfavorable May 2, 2008 decision. The ALJ noted that the:
(A.R. 18; internal citations omitted.) The ALJ also noted that the prior, unfavorable decision gave rise to a presumption that plaintiff continued to be not disabled. (A.R. 17.) The ALJ determined that plaintiff had not rebutted the presumption of continuing nondisability, because she had not met her burden of showing changed circumstances. (A.R. 18.) Specifically, the ALJ noted that "[plaintiff's] current treatment records and testimony show no worsening of her condition and confirm prior findings of her lack of credibility." (Id.)
As an initial matter, it appears that the ALJ may have erred in giving res judicata effect to the prior, unfavorable May 2, 2008 decision. As noted supra, res judicata should not be applied where claimant was unrepresented by counsel at the time of the prior claim.
Further, the Court cannot determine whether the ALJ's finding that plaintiff failed to rebut the presumption of continuing nondisability is supported by substantial evidence. First, plaintiff alleges, and the medical records appear to confirm, that she has been hospitalized on two separate occasions pursuant to a 5150
Second, contrary to the ALJ's assertion, the treatment records from plaintiff's treating psychiatrist, Dr. Alfonso, whose opinion, as noted below, the ALJ failed to consider properly, indicate a worsening in plaintiff's condition. For example, Dr. Alfonso noted in a September 12, 2008 Mental Disorder Questionnaire form that plaintiff has a "paranoid type" schizophrenia with, inter alia, increased anxiety, increased depression, increased paranoia, and increased auditory hallucinations. (A.R. 233-34.) Similarly, in a September 17, 2008 Short-Form Evaluation for Mental Disorders, Dr. Alfonso noted that plaintiff has, inter alia, a "paranoid type" schizophrenia with increased anxiety and increased paranoia. (A.R. 237-40.) In an April 17, 2009 Short-Form Evaluation for Mental Disorders form, Dr. Alfonso again noted plaintiff's diagnosis of "schizophrenia, paranoid type" as well as the fact that plaintiff is experiencing "increasing multiple `voices' [and] increasing paranoid delusions." (A.R. 262-63; emphasis added.) In that same form, Dr. Alfonso noted that plaintiff "was recently hospitalized ... in March, 2009[,] after she `flipped' out [and] became agitated towards her sister. [Plaintiff] decompensated [and] her medications were changed." (A.R. 264.) Dr. Alfonso noted that "[plaintiff] is out of the hospital but [her] prognosis is guarded." (Id.) Lastly, in a June 12, 2009 form entitled "Medical Opinion Re: Ability To Do Work-Related Activities (Mental)," Dr. Alfonso indicated, among other things, that plaintiff has increased anxiety and increased paranoia, and "her concentration is severely impaired due to increasing auditory hallucinations." (A.R. 316; emphasis added.) While the Court does not have Dr. Alfonso's initial evaluation before it for comparison or the records that were before the prior ALJ at the time of the May 2, 2008 decision,
Third, as further evidence of changed circumstances, plaintiff notes that, in a subsequent application for DIB and SSI, she was found to be disabled on October 30, 2010 — to wit, the day after the unfavorable decision at issue here. (Joint Stip. at 7.) The fact that plaintiff was awarded benefits in a subsequent claim so close in time to the prior denial warrants reconsideration so that the ALJ may further evaluate whether records that formed the basis for a finding of disability in the most recent claim may relate to this claim. See
Accordingly, for the aforementioned reasons, the Court cannot find the ALJ's determination that plaintiff has failed to rebut the presumption of continuing nondisability to be supported by substantial evidence.
An ALJ is obligated to take into account all medical opinions of record. 20 C.F.R. §§ 404.1507(d), 416.907(d). It is the responsibility of the ALJ to resolve conflicts in medical testimony and analyze evidence.
The opinions of treating physicians are entitled to the greatest weight, because the treating physician is hired to cure and has a better opportunity to know and observe the claimant.
In his decision, the ALJ rejected the opinion of plaintiff's treating psychiatrist, Dr. Alfonso, in favor of the opinion of the State agency medical consultant, because: (1) Dr. Alfonso never mentioned plaintiff's noncompliance with her medication treatments; and (2) "[t]he evidence of record does not support Dr. Alfonso's ... assertion of disability." (A.R. 18.)
The ALJ's first reason for rejecting Dr. Alfonso's opinion is potentially flawed. In her treatment notes, Dr. Alfonso indicated on multiple occasions that plaintiff's compliance with her medication treatment has been "fair." (See, e.g., A.R. 286, 293, 296, 335.) Clearly, Dr. Alfonso's description of plaintiff's medication compliance as "fair" is an acknowledgment that plaintiff has not been completely compliant with her medication treatment. However, and for the reasons discussed infra at pages 13-14, plaintiff's "fair" compliance with her medication treatment does not constitute a legitimate reason for the wholesale rejection of Dr. Alfonso's opinion.
The ALJ's second reason for rejecting Dr. Alfonso's opinion — to wit, that the evidence of record does not support her assertion of disability — is impermissibly conclusory and provides no specific reference as to how Dr. Alfonso's opinion is lacking in support from the evidence of record. See
Accordingly, for the aforementioned reasons, the ALJ failed to properly reject the opinion of Dr. Alfonso.
Once a disability claimant produces objective medical evidence of an underlying impairment that is reasonably likely to be the source of claimant's subjective symptom(s), all subjective testimony as to the severity of the claimant's symptoms must be considered.
After considering plaintiff's testimony, the ALJ cited no current evidence of malingering by plaintiff and concluded that "[plaintiff]'s medically determinable impairments could reasonably be expected to cause the alleged symptoms." (A.R. 17.) Nonetheless, the ALJ determined that plaintiff's "statements concerning the intensity, persistence and limiting effects of [her] symptoms are not credible to the extent they are inconsistent with the [RFC] assessment." (Id.) Accordingly, the ALJ's reasons for finding that plaintiff is not credible with respect to her subjective symptom testimony must be "clear and convincing."
In his decision, the ALJ primarily rejected plaintiff's credibility because of "her unwillingness to participate in meaningful mental health treatment." (A.R. 18.) Specifically, the ALJ noted that "[s]everal treatment notes indicate [plaintiff's] noncompliance with medication treatment." (Id.) In support of his assertion, the ALJ cited an October 31, 2008 Clinic Visit Sheet from a San Bernardino County Tuberculosis Control Program in which plaintiff's noncompliance with her tuberculosis medication was noted. (Id.; citing A.R. 256.) The ALJ also cited an April 28, 2010 treatment note wherein it was noted that plaintiff was not compliant with her medication plan. (Id.; citing A.R. 328.)
It is well established that a failure to follow a prescribed treatment plan may constitute a valid basis for denying benefits. 20 C.F.R. §§ 404.1530(b), 416.930(b). However, it is not a proper basis when, as in this case, a claimant provides a good reason for her failure to comply with the treatment plan. See
Moreover, even assuming arguendo that plaintiff failed to provide good reasons for her noncompliance, plaintiff's inability to follow her treatment may have been symptomatic of her mental impairments and, therefore, does not provide an appropriate basis for discrediting her subjective symptom testimony. See, e.g.,
Accordingly, for the aforementioned reasons, the Court finds that the ALJ's negative credibility determination premised upon plaintiff's noncompliance lacks the requisite support of substantial evidence in the record. Therefore, on remand, the ALJ must either credit plaintiff's subjective symptom testimony or provide clear and convincing reasons why plaintiff's testimony in this respect is not credible.
The decision whether to remand for further proceedings or order an immediate award of benefits is within the district court's discretion.
Remand is the appropriate remedy to allow the ALJ the opportunity to remedy the above-mentioned deficiencies and errors. On remand, the ALJ must correct the above-mentioned deficiencies and errors.
Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and Order.
IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant.
(Joint Stip. at 5.) While plaintiff is correct that the records upon which the prior ALJ relied are unavailable for review, plaintiff is incorrect that the prior ALJ failed to provide a citation to support his statement that plaintiff missed psychological testing 3 to 4 times. In fact, in his May 2, 2008 decision, the prior ALJ specifically referenced "Exhibit 10F/3" when he noted that plaintiff missed her psychological testing appointment three to four times. (A.R. 75.) The prior ALJ's statement, particular in view of his citation to the record, is not, as plaintiff contends, so vague and ambiguous that the present ALJ erred in relying upon that statement.