Tyrone Hawkins v. Jo Anne B Barnhart

Case 2:05-cv-03996-E Document 21 Filed 01/18/06 Page 1 of 6 Page ID #:58 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFO...

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Case 2:05-cv-03996-E Document 21 Filed 01/18/06 Page 1 of 6 Page ID #:58

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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TYRONE HAWKINS,

) ) Plaintiff, ) ) v. ) ) JO ANNE B. BARNHART, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) ) Defendant. ) ___________________________________)

NO. CV 05-3996-E

MEMORANDUM OPINION AND ORDER OF REMAND

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Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS

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HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary

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judgment are denied and this matter is remanded for further

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administrative action consistent with this Opinion.

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PROCEEDINGS

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Plaintiff filed a complaint on June 7, 2005, seeking review

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of the Commissioner’s denial of benefits.

The parties filed a

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consent to proceed before a United States Magistrate Judge on

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October 11, 2005.

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Plaintiff filed a motion for summary judgment on December 8,

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2005.

Defendant filed a motion for summary judgment on January 9,

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2006.

The Court has taken both motions under submission without

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oral argument.

See L.R. 7-15; “Order,” filed June 20, 2005.

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BACKGROUND

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Plaintiff asserts disability since July 1, 1997, based

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primarily on alleged mental problems (Administrative Record (“A.R.”)

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72, 220-24).

An Administrative Law Judge (“ALJ”) found severe mental

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problems, but concluded Plaintiff retains the residual functional

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capacity to perform simple, repetitive tasks (A.R. 18).

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concluding, the ALJ rejected the opinion of treating psychiatrist

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Dr. Robert Barker, who had stated Plaintiff “is completely and

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permanently disabled” (A.R. 15-16, 224).

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review (A.R. 5-7).

In so

The Appeals Council denied

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STANDARD OF REVIEW

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Under 42 U.S.C. section 405(g), this Court reviews the

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Commissioner’s decision to determine if: (1) the Commissioner’s

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findings are supported by substantial evidence; and (2) the

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Commissioner used proper legal standards.

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763 F.2d 1061, 1064 (9th Cir. 1985).

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See Swanson v. Secretary,

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DISCUSSION

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A treating physician’s conclusions “must be given substantial

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weight.”

Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see

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Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the ALJ must

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give sufficient weight to the subjective aspects of a doctor’s

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opinion . . .

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treating physician”) (citation omitted).

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physician’s opinions are contradicted,1/ “if the ALJ wishes to

This is especially true when the opinion is that of a Even where the treating

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disregard the opinion[s] of the treating physician he . . . must make

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findings setting forth specific, legitimate reasons for doing so that

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are based on substantial evidence in the record.”

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853 F.2d 643, 647 (9th Cir. 1987) (citation, quotations and brackets

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omitted); see Rodriquez v. Bowen, 876 F.2d at 762 (“The ALJ may

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disregard the treating physician’s opinion, but only by setting forth

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specific, legitimate reasons for doing so, and this decision must

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itself be based on substantial evidence”) (citation and quotations

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omitted); McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989)

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(“broad and vague” reasons for rejecting the treating physician’s

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opinions do not suffice); Embrey v. Bowen, 849 F.2d at 421 (“To say

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that medical opinions are not supported by sufficient objective

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findings or are contrary to the preponderant conclusions mandated by

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the objective findings does not achieve the level of specificity our

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prior cases have required . . .”).

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Winans v. Bowen,

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Rejection of an uncontradicted opinion of a treating physician requires a statement of “clear and convincing” reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). 3

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In the present case, the ALJ rejected Dr. Barker’s opinions as

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allegedly unsupported by treatment records and as seemingly

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constituting an uncritical endorsement of Plaintiff’s subjective

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complaints (A.R. 16).

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justify the rejection of Dr. Barker’s opinions.

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accept the opinion of a treating physician that is unsupported by

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clinical findings or predicated on the properly discounted subjective

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complaints of the claimant.

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1019-20 (9th Cir. 1992); Fair v. Bowen, 885 F.2d 597, 605 (9th Cir.

Absent further inquiry, these findings do not An ALJ need not

See Matney v. Sullivan, 981 F.2d 1016,

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1989).

However, where, as here, an ALJ believes a treating

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physician’s opinion is not “based on medically acceptable clinical

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and laboratory diagnostic techniques,” further inquiry of the

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treating physician should precede a final determination of whether

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the treating physician’s opinions are not adequately supported.

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20 C.F.R. 404.1512(e); see Smolen v. Chater, 80 F.3d 1273, 1288 (9th

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Cir. 1996) (“If the ALJ thought he needed to know the basis of

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Dr. Hoeflich’s opinions in order to evaluate them, he had a duty to

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conduct an appropriate inquiry, for example, by subpoenaing the

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physicians or submitting further questions to them.

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have continued the hearing to augment the record”) (citations

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omitted); see also Brown v. Heckler, 713 F.2d 441, 443 (9th Cir.

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1983) (“the ALJ has a special duty to fully and fairly develop the

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record and to assure that the claimant’s interests are considered”).

He could also

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When a court reverses an administrative determination, “the

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proper course, except in rare circumstances, is to remand to the

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agency for additional investigation or explanation.”

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537 U.S. 12, 16 (2002) (citations and quotations omitted). 4

INS v. Ventura, Remand is

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proper where, as here, additional administrative proceedings could

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remedy the defects in the decision.

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599, 603 (9th Cir. 1989); see generally Kail v. Heckler, 722 F.2d

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1496, 1497 (9th Cir. 1984).

McAllister v. Sullivan, 888 F.2d

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The Ninth Circuit’s decision in Harman v. Apfel, 211 F.3d 1172

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(9th Cir.), cert. denied, 531 U.S. 1038 (2000) (“Harman”) does not

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compel a reversal rather than a remand of the present case.

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Harman, the Ninth Circuit stated that improperly rejected medical

In

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opinion evidence should be credited and an immediate award of

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benefits directed where “(1) the ALJ has failed to provide legally

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sufficient reasons for rejecting such evidence, (2) there are no

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outstanding issues that must be resolved before a determination of

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disability can be made, and (3) it is clear from the record that the

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ALJ would be required to find the claimant disabled were such

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evidence credited.”

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omitted).

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Supreme Court’s decision in INS v. Ventura, 537 U.S. 12, 16 (2002),2/

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the Harman holding does not direct reversal of the present case.

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Here, the Administration must recontact Dr. Barker concerning

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“outstanding issues that must be resolved before a determination of

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disability can be made.”

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that the ALJ would be required to find Plaintiff disabled for the

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entire claimed period of disability were the opinions of Dr. Barker

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credited.

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Harman at 1178 (citations and quotations

Assuming, arguendo, the Harman holding survives the

Further, it is not clear from the record

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The Ninth Circuit has continued to apply Harman despite INS v. Ventura. See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). 5

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CONCLUSION

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For all of the foregoing reasons, Plaintiff’s and Defendant’s

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motions for summary judgment are denied and this matter is remanded

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for further administrative action consistent with this Opinion.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED:

January 18, 2006.

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/S/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE

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