DOLLY M. GEE, District Judge.
Pursuant to 28 U.S.C. section 636(b)(1)(B), the Court has reviewed the pleadings and other papers herein along with the attached Report and Recommendation of United States Magistrate Judge.
IT IS ORDERED that: (1) the Report and Recommendation is accepted and adopted as the Findings of Fact and Conclusions of Law herein; (2) Plaintiff's and Defendant's motions for summary judgment are denied; (3) the decision of the Commissioner of the Social Security Administration is reversed in part; and (4) the matter is remanded for further administrative action consistent with the Report and Recommendation.
IT IS FURTHER ORDERED that the Clerk shall serve forthwith a copy of this Order, the Magistrate Judge's Report and Recommendation and the Judgment on the Plaintiff, counsel for Plaintiff and on the United States Attorney for the Central District of California.
CHARLES F. EICK, United States Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Dolly M. Gee, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Plaintiff filed a complaint on June 16, 2011, seeking review of the Commissioner's denial of benefits. Plaintiff filed a motion for summary judgment on December 21, 2011 ("Pl.'s Mot."). Defendant filed a cross-motion for summary judgment on January 10, 2012 ("Def.'s Mot"). The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed June 17, 2011.
Plaintiff, a former cashier and retail department manager, filed applications for disability insurance benefits and supplemental security income on or about April 2, 2008, asserting disability since October 8, 2007, based on alleged depression (Administrative Record ("A.R.") 41, 59-60, 111-18, 150, 154). Plaintiff's insured status expires on December 31, 2012 (A.R. 23, 139).
The Social Security Administration denied Plaintiff's applications initially and upon reconsideration (A.R. 64-80). Plaintiff then retained counsel and requested a hearing, which an Administrative Law Judge ("ALJ") conducted on February 23, 2010 (A.R. 38-63, 81-83). The ALJ examined the medical record and heard testimony from Plaintiff, a medical expert, and a vocational expert (A.R. 38-63). On April 16, 2010, the ALJ issued an unfavorable decision (A.R. 21-33). The ALJ found that Plaintiff suffers from severe "major depressive disorder, recurrent, not otherwise specified, with occasional psychotic features" and anxiety (A.R. 23-25 (adopting medical expert testimony at A.R. 53)). The ALJ nevertheless found Plaintiff retains the residual functional capacity to perform work at all exertion levels, limited to simple, repetitive tasks in a nonpublic work environment (A.R. 26-27, 30-31 (adopting medical expert's testimony at A.R. 54-55)). The ALJ deemed not credible Plaintiff's contrary testimony (A.R. 29). The ALJ conceded that Plaintiff cannot perform her past relevant work, but found that there exist other jobs that she could perform (A.R. 31-32 (adopting vocational expert testimony at A.R. 60-61)).
Plaintiff requested review of the ALJ's decision (A.R. 13-15, 17). Plaintiff's counsel submitted to the Appeals Council additional medical records from Plaintiff's treating psychiatrist. Dr. Liana Tanase, including a "Mental Work Restriction Questionnaire" dated June 14, 2010 (A.R. 15, 182-83, 241; see also A.R. 242-48 (questionnaire); A.R. 249-82 (additional records)). The Appeals Council purported to consider this additional evidence, but denied review:
(A.R. 2). The Appeals Council's denial of review made the ALJ's decision the final decision of the Administration for purposes of judicial review. See Taylor v. Comm'r of Soc. Sec., 659 F.3d 1228, 1231-32 (9th Cir.2011) ("Taylor").
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir.2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir.2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citation and quotations
Where, as here, the Appeals Council considered additional material but denied review, the additional material becomes part of the Administrative Record for purposes of the Court's analysis. See Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir.), cert. denied, 531 U.S. 1038, 121 S.Ct. 628, 148 L.Ed.2d 537 (2000) (reviewing court properly may consider materials submitted to the Appeals Council when the Appeals Council addressed the materials in denying review); Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir.1993) ("Ramirez") ("although the Appeals Council declined to review the decision of the ALJ, it reached this ruling after considering the case on the merits; examining the entire record, including the additional material; and concluding that the ALJ's decision was proper and that the additional material failed to provide a basis for changing the hearing decision. For these reasons, we consider on appeal both the ALJ's decision and the additional material submitted to the Appeals Council") (citations and quotations omitted); Penny v. Sullivan, 2 F.3d 953, 957 n. 7 (9th Cir.1993) ("the Appeals Council considered this information and it became part of the record we are required to review as a whole"); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b).
After reviewing the entire record, including the evidence presented for the first time to the Appeals Council, the Court finds that the Administration's decision is not supported by substantial evidence. Remand is appropriate under sentence four of 42 U.S.C. section 405(g).
The only medical treatment records provided to the ALJ were from Dr. Tanase, who treated Plaintiff monthly for her depression and anxiety from December 17, 2007 (i.e., two months after Plaintiff's alleged onset date) through at least June 7, 2010 (A.R. 203-40, 254-82).
In November 2008, Plaintiff reported worsening depression and anxiety due to her daughter having attempted suicide and her daughter having been placed on a psychiatric hold (A.R. 267). In September 2008 and July 2009, Plaintiff reported calling a suicide hotline for her suicidal ideation (A.R. 261, 270). In July 2009, Plaintiff also reported increased stress, depression, and anxiety due to her son being in jail pending charges (A.R. 261). In August 2009, Plaintiff reported ongoing stress due to her son's incarceration, but stated that she was "doing better" with her medications and that her medications were "working" (A.R. 259-60). In October 2009, Dr. Tanase stated that Plaintiff suffered from "ongoing intermittent worsening depression and anxiety triggered by family" (A.R. 257). Dr. Tanase continued Plaintiff's medications (A.R. 257). In December 2010, Plaintiff declined any changes to her medications stating, "they are working fine" (A.R. 255).
At the hearing before the ALJ, Plaintiff testified that she believed her condition had gotten worse since 2007, explaining: "it's worse because sometimes I feel like I want to hurt myself, harm myself, and I feel nervous all the time, like I'm out of [inaudible] levels of my skin. And it makes me want to cut my wrist open" (A.R. 44). Plaintiff reported having threatened suicide and having been hospitalized for four days for mental illness just weeks prior to the hearing (A.R. 45-46).
After the ALJ's adverse decision. Plaintiff's counsel provided to the Appeals Council additional treatment records from Dr. Tanase. Consistent with Plaintiff's testimony, the records show that when Plaintiff returned to Dr. Tanase in February 2010 Plaintiff reported being hospitalized for four days at a San Bernardino behavioral center for suicidal plans triggered by an assault by her own daughter (A.R. 253).
In March 2010, Dr. Tanase expressed a diagnosis of "BPD" (borderline personality disorder). See A.R. 252; see also DSIV-TR 706-10 (describing the essential feature of borderline personality disorder as "a pervasive pattern of instability of interpersonal relationships, self image, and affects, and marked impulsitivity"). Plaintiff had reported worsening depression and anxiety, and suicidal ideation resulting in a call to a suicide hotline based on a family incident (A.R. 252). Dr. Tanase increased Plaintiff's medications (A.R. 252). In April 2010, Plaintiff reported she was doing "slightly better," and Dr. Tanase increased Plaintiff's seroquel for anxiety at Plaintiff's request (A.R. 251).
Very shortly after the ALJ's adverse decision. Plaintiff reportedly was hospitalized from May 5 through May 10, 2010, for worsening depression with suicidal ideation precipitated by an upcoming court appearance regarding her daughter's assault case (A.R. 250). Plaintiff's medications reportedly were changed during her hospital stay (A.R. 250). Dr. Tanase discontinued certain of Plaintiff's medications and increased others at Plaintiff's request (A.R. 250). At Plaintiff's last documented visit to Dr. Tanase in June 2010, Plaintiff reported stress and panic due to her upcoming court appearance (A.R. 249). Dr. Tanase then characterized Plaintiff as a "high risk for suicidal gesture due to poor coping skills and current stress" and referred Plaintiff to a therapist (A.R. 249).
Dr. Tanase completed a "Medical Work Restriction Questionnaire" dated June 14, 2010 (A.R. 242-48). Dr. Tanase opined Plaintiff suffers from "major depression, recurrent severe/borderline personality disorder" based on her psychiatric evaluation and "medical necessity screening" (A.R. 242; see also A.R. 248 (listing same diagnosis)). Dr. Tanase indicated that Plaintiff has "marked" impairments in: (1) remembering "work like" procedures; (2) understanding and remembering short and simple instructions; (3) carrying out short and simple instructions; (4) making simple work-related decisions; (5) asking simple questions and requesting assistance; and (6) being aware of normal hazards and taking appropriate precautions (A.R. 242-43). Dr. Tanase indicated that Plaintiff has "severe" impairments in: (1) maintaining attention for two hour segments; (2) maintaining regular attendance
Where, as here, "new and material evidence is submitted" to the Appeals Council relating "to the period on or before the date of the [ALJ's] hearing decision," the Appeals Council must consider the additional evidence in determining whether to grant review. See 20 C.F.R. §§ 404.970(b), 416.1470(b). According to these regulations, the Appeals Council will grant review when the Council finds, after evaluation of the entire record including the new and material evidence, "that the [ALJ's] action, finding, or conclusion is contrary to the weight of the evidence currently of record." See, id. In Plaintiff's case, the Appeals Council considered the new evidence, but found, inter alia, that Dr. Tanase's medical source statement was "not persuasive" enough to warrant reviewing the ALJ's decision (A.R. 2).
Plaintiff argues that the Appeals Council erred by failing to state "specific, legitimate reasons" for rejecting Dr. Tanase's opinions (Pl.'s Mot., p. 6). Defendant argues that the Appeals Council, unlike the ALJ, need not state specific reasons for rejecting a treating physician's opinions (Def.'s Mot., pp. 2-3).
Generally, a treating physician's opinions "must be given substantial weight." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir.1989) ("the ALJ must give sufficient weight to the subjective aspects of a doctor's opinion ... This is especially true when the opinion is that of a treating physician") (citation omitted); see also Orn v. Astrue, 495 F.3d 625, 631-33 (9th Cir.2007) (discussing deference owed to treating physician opinions); see generally 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Where a treating physician's opinion is contradicted, as here, "if the ALJ wishes to disregard the opinion of the treating physician he ... must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987) (citation, quotations and brackets omitted); see Rodriguez v. Bowen, 876 F.2d at 762 ("The ALJ may disregard the treating physician's opinion, but only by setting forth specific, legitimate reasons for doing so, and this decision must itself be based on substantial evidence") (citation and quotations omitted).
At least until recently, the requirement of stating "specific, legitimate reasons" for rejecting the contradicted opinion of a treating physician appeared to apply within the Ninth Circuit to the Appeals Council as well as to the ALJ. In Ramirez, the Appeals Council had considered a newly submitted medical report from the claimant's treating physician, but had denied review. The Ramirez Court stated "we consider the rulings of the ALJ and the Appeal Council." Ramirez, 8 F.3d at 1451.
Ramirez, 8 F.3d at 1453-54 (internal footnotes omitted; emphasis added).
District Courts within the Ninth Circuit routinely have applied Ramirez to impose on the Appeals Council the same requirements for rejecting newly submitted medical opinions as the courts impose on ALJs for rejecting previously submitted medical opinions. See, e.g., Garcia v. Astrue, 2011 WL 6149290, at *6 (C.D.Cal. Dec. 9, 2011) ("the Appeals Council's conclusory rejection of the opinion of plaintiff's treating physician, without providing any reason therefor, constitutes error"); Rector v. Astrue, 2011 WL 4048783, at *5 (E.D.Cal. Sept. 9, 2011) (court found no error because the Appeals Council had provided specific, legitimate reasons for rejecting the treating physician's opinions); Luckett v. Astrue, 2010 WL 3825703, at *9 (E.D.Cal. Sept. 28, 2010) (Appeals Council erred by failing to provide specific reasons for rejecting treating physician's opinion; collecting district court cases supporting proposition that Appeals Council is held to same standards as ALJ for rejecting treating physician opinion); see also Brent v. Astrue, 2010 WL 3521788, at *5-6 (C.D.Cal. Sept. 7, 2010) (generally concluding that the Appeals Council's conclusory rejection of examining physician's opinion, without explanation, is contrary to Ninth Circuit law governing the weight to be given to doctors' opinions).
A recent Ninth Circuit decision appears to direct a different approach, however. In Taylor, as in Ramirez, the Appeals Council had denied review after receiving new opinions from the claimant's treating physician. The Taylor Court stated:
Taylor, 659 F.3d at 1232.
The Gomez case invoked by the Taylor Court had considered whether the Appeals Council was required to make an evidentiary finding before rejecting a post-hearing vocational expert opinion solicited by a claimant. Gomez, 74 F.3d at 972. The Gomez Court concluded that no evidentiary finding was necessary because the requirement of substantial evidence for rejecting a vocational opinion applied only to
The Taylor decision thus calls into serious question whether District Courts in the Ninth Circuit should continue to impose on the Appeals Council the same requirements for rejecting newly submitted medical opinions as the courts impose on ALJs for rejecting previously submitted medical opinions. Even so, according to Taylor, the reviewing court still must consider a post-hearing treating physician opinion as part of the court's "overall review of the ALJ's decision" (whether or not the Appeals Council itself considered the opinion.
Following Taylor's directive in the present case, this Court has reviewed the ALJ's decision in light of the record as a whole, including the evidence submitted for the first time to the Appeals Council. For the reasons discussed below, the Court concludes that the ALJ's decision presently is not supported by substantial evidence.
As summarized above, in determining Plaintiff's residual functional capacity, the ALJ relied on the medical expert's opinion, which adopted the consultative examiner's opinion from an interview of Plaintiff conducted without the benefit of any of Plaintiff's medical records. The record at the hearing and before the medical expert did not include Dr. Tanase's reports that Plaintiff had suffered two psychiatric hospitalizations for her suicidal ideation. The information provided to the consultative examiner also did not include Plaintiff's reported struggles with suicidal ideation.
In light of Dr. Tanase's treatment records indicating that Plaintiff's depression and anxiety worsened over time (including two hospitalizations for suicide attempts that were unknown to the ALJ, the medical expert, or the consultative examiner), and the reported GAF score suggesting disability, the ALJ must reconsider the record as a whole, including Dr. Tanase's opinion that Plaintiff suffers from much greater limitations than the ALJ found to exist.
The circumstances of this case indicate that there is a substantial likelihood the ALJ's consideration of the additional evidence submitted to the Appeals Council will materially alter the ALJ's disability analysis. Therefore, remand is appropriate. See McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir.2011); see also INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (When a court reverses an administrative determination, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.") (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir.1989); see generally Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir.1984).
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) denying Plaintiff's and Defendant's motions for summary judgment; and (3) directing that Judgment be entered reversing in part the decision of the Commissioner and remanding the matter for further administrative action consistent with this Report and Recommendation.
IT IS HEREBY ADJUDGED that the decision of the Commissioner of the Social Security Administration is reversed in part and the matter is remanded for further
Contrary to Dr. Tanase's earlier finding (which Dr. Yang did not review), Dr. Yang assigned Plaintiff a GAF score of 65 (A.R. 187). "A GAF of 61-70 indicates `some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.'" Siegel v. Astrue, 2009 WL 2365693, at *6 n. 6 (E.D.Cal. July 31, 2009) (quoting from American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th Ed. 1994)); see also DSM-IV-TR 34 (same).
Similarly, in a Psychiatric Review Technique form dated June 30, 2008, non-examining State agency physician Dr. Kevin Gregg indicated that Plaintiff would suffer only mild difficulties in maintaining concentration, persistence, or pace (A.R. 188-98). Dr. Gregg agreed with another non-examining State agency physician that Plaintiff's depression appeared to be "non severe" (A.R. 201). Dr. Gregg reviewed Dr. Yang's evaluation, but there is no indication that Dr. Gregg reviewed any of Plaintiff's medical treatment records (A.R. 200-01).
