Summary
remanding under Sentence 4 for failure to order CE examination previously scheduled because claimant incarcerated
Summary of this case from Aziz v. SaulOpinion
No. CIV S-09-899 KJM.
September 30, 2010
ORDER
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying an application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"). For the reasons discussed below, the court will deny plaintiff's motion for summary judgment, deny the Commissioner's cross-motion for summary judgment, and remand this matter under sentence four of 42 U.S.C. § 405(g).
I. Factual and Procedural Background
II. Standard of Review
42 U.S.C. § 405Copeland v. Bowen861 F.2d 536538Desrosiers v. Secretary of Health and Human Services 846 F.2d 573575-76Saelee v. Chater94 F.3d 520521Sorenson v. Weinberger514 F.2d 11121119Richardson v. Perales402 U.S. 38940291 S. Ct. 1420Consolidated Edison Co. v. N.L.R.B.305 U.S. 197229 59 S. Ct. 206 Howard v. Heckler782 F.2d 14841487See Jones v. Heckler760 F.2d 993 995Id. see also Hammock v. Bowen879 F.2d 498501see Sprague v. Bowen812 F.2d 12261229-30 see Burkhart v. Bowen856 F.2d 13351338
Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. § 401et seq. Supplemental Security Income ("SSI") is paid to disabled persons with low income. 42 U.S.C. § 1382 et seq. Under both provisions, disability is defined, in part, as an "inability to engage in any substantial gainful activity" due to "a medically determinable physical or mental impairment." 42 U.S.C. §§ 423(d)(1)(a) 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. §§ 423(d)(1)(a), 416.920 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n. 5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.
On remand, at step two of the sequential analysis, the ALJ must include all impairments that are severe. With respect to credibility issues, the ALJ must set forth clear and convincing reasons for rejecting plaintiff's testimony and must provide reasons germane to each witness if laywitness testimony is discounted. At step five, vocational testimony is not required if plaintiff's past relevant work requires a reasoning level of two and plaintiff is limited to simple, unskilled work. See Abrew v. Astrue, 303 Fed. Appx. 567, 569-70 (9th Cir. 2008); see also Lara v. Astrue 305 Fed. Appx. 324 (9th Cir. 2008).
III. Analysis
Plaintiff contends the ALJ failed to properly develop the record by failing to obtain a consultative psychiatric examination. Disability hearings are not adversarial. See DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991); see also Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996) (ALJ has duty to develop the record even when claimant is represented). Evidence raising an issue requiring the ALJ to investigate further depends on the case. Generally, there must be some objective evidence suggesting a condition that could have a material impact on the disability decision. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); Wainwright v. Secretary of Health and Human Services, 939 F.2d 680, 682 (9th Cir. 1991). "Ambiguous evidence . . . triggers the ALJ's duty to `conduct an appropriate inquiry.'" Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (quoting Smolen, 80 F.3d at 1288).
A consultative examination is appropriate when the medical evidence is incomplete or unclear and undermines the ability to resolve the disability issue. 20 C.F.R. §§ 416.917, 416.919a. Ordering a consultative examination ordinarily is discretionary; it is required only when necessary to resolve the disability issue. See Armstrong v. Commissioner of Social Security, 160 F.3d 587, 589-90 (9th Cir. 1998) (where record unclear as to determinative issue, ALJ committed reversible error by deciding issue without consulting medical expert).
In this case, no consultative mental health examination was performed. Defendant contends error should not be ascribed to the ALJ for failure to order a consultative examination because the agency ordered two consultative psychiatric examinations and plaintiff failed to appear for them. See AT 326 (state agency physicians noted in assessments on February 15, 2007 and March 6, 2007 that plaintiff missed earlier "initial" consultative psych exams). The record indicates, however, that the reason plaintiff failed to appear for the examinations was because she was incarcerated at the time of the scheduled appointments. AT 288 (at doctor's visit on August 17, 2006, plaintiff stated she was recently incarcerated); AT 147 (in May 2006, plaintiff's cousin called agency to report plaintiff was in jail for at least 90 days; DDS contacted jail and was told jail would not release plaintiff for consultative examination; DDS reported it did not have any consultants that would go to the jail to conduct examination); AT 149 (in September 2005, DDS determined psychiatric consultative examination required but plaintiff "no showed," cousin called to report plaintiff in jail).
Defendant also contends the record is not ambiguous regarding plaintiff's mental health status and there was sufficient evidence to find plaintiff not disabled based on the assessment of the nonexamining state agency psychiatrist who found in March 2007 that plaintiff retained the residual functional capacity to perform simple tasks. AT 313. Upon review of the entire record, the court finds further development of the record was necessary. In June 2006, the state agency found there was insufficient evidence in the record to make an assessment of plaintiff's mental impairments. AT 266. The case analysis by the state agency in March 2007 queried whether there was still insufficient evidence to make a mental assessment, but the state agency psychiatrist reviewing the submitted medical evidence determined the evidence was sufficient and also, as noted, that plaintiff retained the residual functional capacity to perform simple tasks. AT 313, 324, 326. In finding plaintiff not disabled, the ALJ relied on the state agency's June 2006 assessment. AT 22, 266. However, the records post-dating the agency determination that indicate plaintiff may have been suffering a deteriorating mental condition were not available to the state agency psychiatrist. AT 329 (in July 2007, plaintiff not doing well, paranoid, anxious, nervous, unable to sleep), 327 (in January 2008, plaintiff obsessing, feeling down, complaining of anhedonia, lack of motivation), 362 (for reporting period from April 2007 to March 2008, therapist noted that since February 2008, plaintiff experienced increasing symptoms of depression including insomnia, fatigue, feelings of worthlessness, difficulty concentrating, forgetfulness, daily depressed mood, and recurrent thoughts of death). This objective evidence creates an ambiguity and indicates further development to explore plaintiff's mental status was necessary to resolve the disability issue and to determine if there was a later onset date than alleged by plaintiff. A consultative examination was required under these circumstances.
Although it is within the province of the ALJ to reject the opinion of plaintiff's treating behavioral therapist regarding plaintiff's GAF, an ALJ cannot disregard the clinical findings, as the ALJ did here. AT 22.
For the foregoing reasons, this matter will be remanded under sentence four of 42 U.S.C. § 405(g) for further development of the record and further findings addressing the deficiencies noted above.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment is denied;
2. The Commissioner's cross-motion for summary judgment is denied; and
3. This matter is remanded for further proceedings consistent with this order.
DATED: September 30, 2010.