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In Moreland v. Barnhart, 44 Tex. 275, Miller v. Yturria, supra, and other cases in this State, it is distinctly held that, in order to establish that an absolute deed is intended as a mortgage, it must be proved with clearness and certainty.
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No. C 00-01420 MMC
April 16, 2002
ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT; GRANTING MOTIONS FOR REMAND
Plaintiff Tony Moreland ("Moreland") brings this action pursuant to 42 U.S.C. § 405 (g) for judicial review of a final decision of the Commissioner of Social Security Administration ("Commissioner) denying his application for Supplemental Security Income ("SSI") benefits under Title XVI of the Social Securities Act. The matter is before the Court on Moreland's motion for summary judgment or, in the alternative, for remand, and on the Commissioner's cross-motion for summary judgment and/or remand. Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having considered the papers in support of and in opposition to the motions, the Court rules as follows.
Jo Anne B. Barhart is substituted for her predecessor, Kenneth S. Apfel, as Commissioner of the Social Security Administration. See Fed.R.Civ.P. 25(d)(1).
BACKGROUND
Moreland was born on August 30, 1962. (Transcript of Record ("Tr.") at 169.) He filed an application for SSI benefits on July 9, 1996, alleging he was unable to work as a result of gout, pancreatitis, stomach pain, a dislocated shoulder, and asthma. (Tr. at 169-72.) Moreland, who has not worked since 1989, had previously worked as a junior high school coach and as a loader for a bakery. (Tr. at 18, 23.)
After Moreland's claims were denied initially and on reconsideration by the Social Security Administration, an administrative law judge ("ALJ") held a hearing to consider Moreland's application. (Tr. at 58.) At a hearing held August 5, 1998, the ALJ heard testimony from Moreland, two of Moreland's relatives, two medical experts, and a vocational expert. (Tr. at 17.) Following the hearing, the ALJ issued a written decision, finding that Moreland was not disabled. In the decision, the ALJ found that, although Moreland was unable to perform his past relevant work, Moreland retained the residual functional capacity ("RFC") to perform a full range of light work. (Tr. at 23-24.) The ALJ also found that Moreland was ineligible for disability benefits because "[t]he medical evidence establishes that [Moreland] would not be disabled if he stopped using alcohol." (Tr. at 24.) Additionally, although Moreland's application for benefits had not alleged disability on the basis of mental impairments, the ALJ completed a Psychiatric Review Technique form, concluding therein that Moreland's mental impairments were "not severe." (Tr. 25.)
If a claimant has a "colorable claim of mental impairment," the ALJ is required to complete a Psychiatric Review Technique form to evaluate the severity of mental impairments. See Gutierrez v. Apfel, 199 F.3d 1048, 1051 (9th Cir. 2000). As discussed infra, Moreland offered evidence of mental impairments at the hearing.
On February 17, 2000, the Appeals Council denied Moreland's request for review of the denial of his application for benefits. (Tr. at 6). Thereafter, Moreland commenced this action for judicial review pursuant to 42 U.S.C. § 405 (g).
LEGAL STANDARD
The Commissioner's decision that benefits are not warranted will be "disturbed only if it is not supported by substantial evidence or if it is based on legal error." Brawner v. Secretary of Health and Human Serv., 839 F.2d 432, 433 (9th Cir. 1987) (quoting Green v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986)). See also 42 U.S.C. § 405 (g). "Substantial evidence considering the entire record, is relevant evidence which a reasonable person might accept as adequate to support a conclusion." Matthews v. Shalala, 10 F.3d 678, 679 (9th Cir. 1993). In its review, the Court must consider the record as a whole, including evidence that supports and detracts from the decision. See Desrosiers v. Secretary of Health and Human Serv., 846 F.2d 573, 576 (9th Cir. 1988).
DISCUSSION
In his motion for summary judgment or, in the alternative, for remand, Moreland asserts that the ALJ erred by failing to properly consider medical evidence with respect to the severity of Moreland's mental impairments, improperly finding that Moreland and two lay witnesses were not credible, and failing to consider a prior finding of disability made by a state administrative law judge. The Commissioner, in addition to arguing that Moreland has not shown any error entitling him to relief argues that the decision should be affirmed based on the finding that Moreland would not be disabled if he stopped using alcohol.
A. Treating Physicians
"Because treating physicians are employed to cure and thus have a greater opportunity to know and observe the patient as an individual, their opinions are given greater weight than the opinions of other physicians." Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). "Therefore, an ALJ may not reject treating physicians' opinions unless he makes findings setting forth specific and legitimate reasons for doing so that are based on substantial evidence in the record." Id. (internal citations and quotation omitted).
Moreland argues that the ALJ did not give adequate reasons for rejecting the opinions of treating physicians J. James Oh, M.D. ("Dr. Oh"), and Leigh Kimberg, M.D. ("Dr. Kimberg"), with respect to their opinions as to the extent and severity of Moreland's mental impairments.
Rowena Nery ("Nery"), a clinical psychological intern, and Dr. Oh, medical director of the Psychosocial Medicine Outpatient Clinic of San Francisco General Hospital Medical Center, co-signed a letter dated May 8, 1998, in which they provided the opinion that Moreland was disabled due to a combination of the symptoms of various mental impairments, including cognitive disorder, a learning disability dating to childhood, and depression. (See Tr. at 648-49.) That opinion, according to the May 8, 1998 letter, was based on observations following four months of psychotherapy. (See id.)
Dr. Kimberg, who began treating Moreland in April 1996, opined in two documents titled, respectively, "Residual Functional Capacity Questionnaire" and "Mental Impairment Questionnaire," both dated January 12, 1998, and in a report titled "Medical Opinion Re: Ability to Do Work-Related Activities (Mental)," dated December 17, 1997, that Moreland was disabled due to his impairments. (See Tr at 600-04). Dr. Kimberg stated therein that Moreland's functional limitations were, in large part, the product of gout attacks and that, in turn, Moreland's inability to control his gout attacks was the product of mental deficiencies interfering with proper medical treatment. (See Tr. at 601-02, 604, 606.) Dr. Kimberg, who diagnosed Moreland as "intellectually deficient" (Tr. at 600), cited to Moreland's "extremely poor reading skills" and "inability to understand very simple instructions" (Tr. at 601; see also Tr. at 604, 606), which Dr. Kimberg attributed to Moreland's low IQ, "probable learning disorder," and "intermittent recurrent depression." (See Tr. at 606.) Additionally, in a letter addressed "to whom it may concern," dated July 22, 1998, Dr. Kimberg stated that she had reviewed "the letter from [the] psychological medicine clinic dated 5/8/98" — the letter written by Nery and Dr. Oh — and that she "agree[d] completely with its content and opinion." (See Tr. at 667.)
Dr. Kimberg's opinion was based on her treatment and observations of plaintiff since April 1996. (See Tr. at 601.) Dr Kimberg began treating plaintiff on April 23, 1996. (See Tr. at 361.) After the first meeting, Dr Kimberg stated in a memorandum that "Moreland clearly has some [type] of learning disability and possible developmental delay" and that "[h]e seems clinically depressed and requires further psychiatric evaluation." (See id.)
The ALJ rejected Dr. Kimberg's opinion that Moreland's mental impairments rendered Moreland disabled, on the ground that "the extent and severity of [Moreland's mental] symptoms is not supported by medical evidence of qualified psychologists! psychiatrists." (See Tr. at 21-22.) Although the ALJ did not expand on this finding, it appears that the ALJ afforded Dr. Kimberg's opinion as to Moreland's mental impairments little weight because the ALJ did not find any corroborative evidence in the record. One explanation for the ALJ's decision, which is offered by the Commissioner, is that the ALJ must have concluded that Dr. Oh, an acceptable medical source who co-signed the letter dated May 8, 1998, had not met or treated Moreland. (See Del's Mot. at 5:27-6:2.)
The record indicates that Dr Kimberg was Moreland's "primary care physician" and that her specialty is "internal medicine," not psychiatry. (See Tr. at 648, 670.)
The Code of Federal Regulations provides that "acceptable medical sources" who can establish whether a claimant has an impairment include licensed physicians and licensed or certified psychologists. See 20 C.F.R. § 416.913. Psychological interns, by contrast, are not listed as "acceptable medical sources." See id. The letter of May 8, 1998 does not state whether Nery alone treated Moreland, with Dr. Oh co-signing her letter as a matter of formality, or whether Dr Oh took part in Moreland's treatment in some respect. At the hearing, Moreland, in addition to offering the May 8, 1998 letter as evidence of the extent and severity of his mental impairments, also offered a document entitled "List of Medical Providers," in which Moreland referred to "Dr. J. James Oh (Ms. Rowena Nery)" as a "medical provider," and stated therein that "Dr. Oh and Ms. Nery became his psychiatrist and therapist after he was referred to Psycho Social Medicine by Dr. Kimberg in January 1998." (See Tr. at 670.) The List of Medical Providers further states that Moreland "sees Ms. Nery once a week," but includes no information as to the relationship, if any, between Moreland and Dr. Oh. (See id.)
"In Social Security cases the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered." Smolen, 80 F.3d at 1288. Although plaintiff testified at the hearing, the ALJ did not ask plaintiff any questions about the nature of his psychotherapy, or Dr. Oh's involvement in that therapy. Thus, to the extent the ALJ did not find the May 8, 1998 letter co-signed by Dr. Oh, along with the List of Medical Providers offered by Moreland, sufficient to demonstrate Dr. Oh's involvement in Moreland's treatment, Moreland was not afforded an opportunity to respond to any questions the ALJ might have had in that regard.
0n appeal, Moreland asserts that Dr. Oh was his treating physician. (See Pl.'s Mot. at 9:3-4.)
"If additional proceedings can remedy defects in the original administrative proceedings, a social security case should be remanded." McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (internal quotes and citation omitted). Here, remand is proper to determine whether the opinion that Moreland's mental impairments are disabling, as set forth in the May 8, 1998 letter, is an opinion of an acceptable medical source. It on remand, the ALJ so determines, the ALJ should reconsider Dr. Kimberg's opinion concerning the severity of Moreland's mental impairments in light of what may be corroborating medical evidence.
After finding that no "acceptable medical source" supported Dr. Kimberg's opinion to the severity of Moreland's mental impairments, the ALJ went on to reject Dr. Kimberg's opinion for other reasons: (1) Moreland's school records did not show that he had received "special education services;" (2) Moreland had been able to work as a junior high football coach; (3) Moreland had attended college for 2 1/2 years; and (4) the results of an IQ test taken in 1995 showed that Moreland was in the "low average range." See Tr. at 22.) It on remand, the ALJ determines that Dr. Kimberg's opinion was supported by the opinion of an "acceptable medical source," namely Dr. Oh, the ALJ should consider whether Dr. Kimberg's opinion is entitled to any deference in light of a corroborating opinion from an acceptable medical source.
B. Credibility Assessment
Moreland argues that the ALJ failed to provide clear and convincing reasons for rejecting the testimony of Moreland, as well as the testimony of Moreland's mother and aunt, concerning the extent and severity of his impairments.
If a claimant alleging disability based on subjective symptoms offers objective medical evidence of an impairment that could reasonably cause the alleged subjective symptoms, the ALJ may reject the claimant's testimony regarding the severity of symptoms "only if he makes specific findings stating clear and convincing reasons for doing so." See Smolen, 80 F.3d at 1281-84.
With respect to his physical impairments, Moreland testified that pain from his impairments was so severe he could hardly walk (see Tr. at 63), that he could only walk with the aid of a cane (see Tr. at 66), that medication did not fully prevent pain from his gout (see Tr. at 68), that he had difficulty breathing due to asthma (see Tr. at 70-71) and that he suffered pain from pancreatitis even when abstaining from alcohol. (See Tr. at 74.) With respect to his mental impairments, Moreland testified that he often had memory loss, believed that people were "tricking" him, and got "frustrated and mad and angry." (See Tr. at 65.) Moreland's mother testified that Moreland was unable to follow simple directions, such as a directive to take out the garbage. (See Tr. at 96.) Moreland's aunt testified that Moreland could not remember anything he was told and that he "can't follow orders" (see Tr. at 101), that sometimes he was like a "zombie" (see Tr. at 102), and that when Moreland believed he was engaged to be married, he was "hallucinating." (See id.)
The ALJ found that Moreland, his mother, and his aunt were not credible for the following reasons: (1) "inconsistencies in the reported symptoms and the medical evidence of record;" (2) "medical evidence showing good control of Moreland's symptoms with appropriate medication and abstention from alcohol;" (3) "inconsistencies in motivation and effort on psychological testing;" (4) "and the extent of medical treatment." (See Tr. at 22.) of these grounds, the second appears to be a reference to Moreland's gout condition, as the ALJ found that "the record also shows that when he takes prescribed gout medications[,] flareups of this condition are precluded." (See Tr. at 21.) The ALJ's reasoning with respect to the other grounds appears to have been based, at least in part, on the ALJ's finding that evidence as to the extent and severity of Moreland's alleged mental impairments was "not supported by medical evidence of qualified psychologists! psychiatrists." (See Tr. at 21-22.) As noted above, this action will be remanded to allow the ALJ to determine if such evidence does, in fact, exist. Consequently, the credibility of Moreland, his mother, and his aunt should also be reconsidered in light of the resolution of that question.
0n remand, if the ALJ concludes that Moreland, his mother, and his aunt are not credible witnesses, the ALJ must set forth "specific reasons germane to each witness." See Regennitter v. Commissioner of the Social Security, 166 F.3d 1294, 1298 (9th Cir. 1999).
C. Failure to Consider the Decision of State Agency
Moreland argues that the ALJ erred by failing to acknowledge a decision issued by a California Department of Health Services ALJ, who, on July 26, 1996, ruled that Moreland was entitled to disability benefits under state law. (See Tr. at 346.)
An ALJ has the discretion to decide what weight, if any, to give state agency findings. See Bates v. Sullivan, 894 F.2d 1059, 1063 (9th Cir. 1985) (holding "the Secretary may attribute as much or as little weight to [state agency findings] as the Secretary deems appropriate"). The ALJ may disregard a state finding of disability "even if the claimant has been found eligible to receive state disability benefits under a standard more rigorous than those used to determine eligibility for SSI and Title II disability benefits." Id. Further, "the Secretary is not required to articulate specific reasons for disregarding the state agency determination." Bunnell v. Sullivan, 912 F.2d 1149, 1155 (9th Cir. 1990) (rejecting claimant's argument that the ALJ had "improperly ignored" the finding of a state agency that she was disabled), overruled on other grounds, 945 F.2d 1149 (9th Cir. 1990) (en banc).
Here, although Moreland is correct that the ALJ did not discuss the state ALJ's decision, given that the ALJ had the discretion to give the state agency decision little or no weight and was not required to articulate any reason for his rejection of that determination, Moreland cannot establish error with respect to the ALJ's failure to explicitly consider the
decision of the state agency.
D. Alcoholism
The Commissioner argues that the ALJ's decision can be affirmed solely on the ground that Moreland is not eligible for benefits because of his alcoholism. As noted, the ALJ, while finding that Moreland did not have a "disability" as defined in the Act, alternatively found that Moreland "would not be disabled if he stopped using alcohol." (See Tr. at 24.)
42 U.S.C. § 1382c(a)(3)(J) provides that "[a]n individual shall not be considered to be disabled for purposes of this subchapter if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that the individual is disabled." See 42 U.S.C. § 1382c(a)(3)(J). Section 1382c(a)(3)(J), however, is not a bar to a claimant receiving disability benefits if the claimant, having stopped using alcohol, would remain disabled. See Souza v. Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998). As explained by the Ninth Circuit, "[j]ust because substance abuse contributes to a disability does not mean that when the substance abuse ends, the disability will too." See id.
Here, Moreland offered the letter from his therapist Nery and Dr. Oh, who stated that Moreland had a history of alcohol abuse, that he had been sober for over a year, and yet his mental impairments persisted. (See Tr. at 648-49.) As noted, the ALJ concluded that the opinion of Nery and Dr. Oh was not the opinion of an acceptable medical source. It on remand, the ALJ concludes that the opinion is that of an acceptable medical source, the ALJ should reconsider whether Moreland, if he could otherwise establish that he is disabled, would be ineligible for benefits under § 1382c(a)(3)(J).
E. Improper Restriction of Record
Moreland argues that the ALJ improperly restricted the development of the record by cutting his attorney's presentation short and not allowing his attorney to ask certain questions of Moreland and other witnesses. Moreland argues that because the ALJ has shown an "unwillingness to hear relevant evidence" (see Pl.'s Mot. at 11:23-24:3), when this action is remanded for further proceedings, the Court should direct or recommend that the SSA assign the matter to a different ALJ.
Although some courts have, in conjunction with remanding a social security action for further proceedings, directed or recommended that the SSA assign the case to a different ALJ, those cases involved markedly different facts. See, e.g., Sarcher v. Chater, 78 F.3d 307 309 (7th Cir. 1996) (recommending that, on remand, SSA assign case to different ALJ where "tone of the administrative law judge's opinion suggests she may have an unshakeable commitment to the denial of this applicant's claim"); Hartnett v. Apfel, 21 F. Supp.2d 217, 222-23 (E.D. N.Y. 1998) (ordering that, on remand, SSA assign case to different ALJ where "ALJ [had] mischaracterized or misunderstood the evidence before him" and where ALJ's comments "betray[ed] a troubling measure of insensitivity"). Here, in contrast, the ALJ, by not allowing counsel for Moreland to ask certain questions, was exercising his inherent authority to control the proceeding. The ALJ, before ruling that counsel could not proceed, requested that counsel first explain the relevance of the proposed testimony, and then did not allow the question if the ALJ was satisfied the expected testimony would be either irrelevant or cumulative. (See, e.g., Tr. at 91-92 (ruling that testimony as to the details of an eviction was immaterial to Moreland's claim for disability benefits); Tr. at 106-07 (ruling that evidence as to the amount of weight a person with acute pancreatitis could lift was not material in absence of evidence that Moreland had not suffered from acute pancreatitis for eleven months)).
Accordingly, the Court declines to direct or recommend that, on remand, the SSA assign this case to a different ALJ.
CONCLUSION
For the reasons expressed above, the above-entitled action is hereby REMANDED to the SSA for further administrative proceedings consistent with this decision.
The Clerk shall close the file.
IT IS SO ORDERED.