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United States District Court, Ninth Circuit
May 28, 2013
DARRELL HUNTER, Plaintiff,v.CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.
ORDER UNSEALING IN PART MARCH 4, 2013 ORDER RE: DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT (Dkt. No. 115)
JACQUELINE SCOTT CORLEY, Magistrate Judge.
This Court filed its Order regarding Defendants' Motion for Partial Summary Judgment under seal because various matters referenced therein have been filed under seal in this matter. (Dkt. No. 115.) In a separately filed Order, the Court directed Defendants, as the parties who had designated the material confidential in the first instance, to file a statement setting forth the basis for sealing portions of the Court's Order that referred to the material previously designated as confidential. The Court has considered Defendants' Statement (Dkt. No. 119) and the relevant authority and hereby UNSEALS the March 4, 2013 Order in part for the reasons set forth below.
"[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 & n.7 (1978); see also Foltz v. State Farm Mutual Auto Insurance Comp., 331 F.3d 1124, 1134 (9th Cir. 2003) ("In this circuit, we start with a strong presumption in favor of access to court records.) The right is justified by the interest of citizens in "keep[ing] a watchful eye on the workings of public agencies." Nixon, 435 U.S. at 598. The right, however, "is not absolute and can be overridden given sufficiently compelling reasons for doing so." Foltz, 331 F.3d at 1135; see, e.g. Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir. 1989). "A narrow range of documents is not subject to the right of public access at all because the records have traditionally been kept secret for important policy reasons." Kamakana v. City and County of Honoloulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (internal citations omitted); see, e.g., Times Mirror Co., 873 F.2d at 1219 (grand jury transcripts and warrant materials in the midst of a pre-indictment investigation not subject to right of public access).
The right of public access to judicial records "applies fully to dispositive pleadings, including motions for summary judgment and related attachments." Kamakana, 447 F.3d at 1179. The Ninth Circuit "adopted this principle of disclosure because the resolution of a dispute on the merits, whether by trial or summary judgment, is at the heart of the interest in ensuring the public's understanding of the judicial process and of significant public events." Id. (internal citations and quotation marks omitted). Thus, "[a] party seeking to seal a judicial record then bears the burden of overcoming this strong presumption by meeting the compelling reasons' standard." Id. at 1178-79. The reasons must "outweigh the general history of access and the public policies favoring disclosure." Id. at 1179 (internal quotation marks and citations omitted). Such compelling reasons include "the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets." Id. at 1179 (internal quotation marks and citation omitted). "The mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records." Id.
The Court must "conscientiously balance[] the competing interests" of the public and those of the party seeking to keep certain judicial records secret. Foltz, 331 F.3d at 1135. In considering these interests, the court must "base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture." Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995) (internal citations omitted).
Defendants request that two portions of the Court's Order regarding Defendants' Motion for Partial Summary Judgment be filed under seal. First, they ask that footnote 6, referring to prior unsustained excessive force complaints against one of the Deputy defendants, be sealed on the ground that the footnote violates the Deputy's right to privacy. In the alternative, they ask that the Deputy's name be removed from the footnote. Second, Defendants request that the Court seal portions of the Order that quote from documents in another Deputy's personnel file. In particular, they ask that the Court seal references made to a Notice of Intent to Discipline. The Court addresses each request for sealing in turn.
A. Information Re: Unsustained Excessive Force Complaints
Defendants contend that footnote 6, which references prior unsustained excessive force complaints against one of the individual defendants, should be sealed because it is protected by the Deputy's right to privacy and California Penal Code § 832.7. As support, Defendants rely on Nakagawa v. Regents of Univ. of Cal., No. 06-2066, 2008 WL 1808902 (N.D. Cal. Apr. 22, 2008), for the proposition that "Federal courts have recognized a defendant's interest in preserving confidentiality of information contained in his or her personnel file." (Dkt. No. 119 at 1.) Nakagawa, however, is inapposite as it addressed sealing in connection with discovery disputes and not dispositive motions. Similarly, Section 832.7 does not shield this information because in federal question cases, federal common law applies. See Garrett v. City and County of San Francisco, 818 F.2d 1515, 1519 n.6 (1987) ("This court has held that personnel files are discoverable in federal question cases... despite claims of privilege"). Instead, Defendants must show "compelling reasons sufficient to outweigh the public's interest in disclosure and justify sealing court records." Kamakana, 447 F.3d at 1178.
Defendants have failed to demonstrate a compelling reason to shield the fact that one of the deputies had two prior allegations of excessive force (especially as this fact is referenced in their own publicly filed statement supporting the redactions, see Dkt. No. 119 ¶ 1). The Court nevertheless concludes that the identity of the Deputy should remain confidential given that it lacks any probative value in this context of the summary judgment Order; the Court did not rely on the fact that the Deputy had prior unsustained allegations of excessive force in reaching its decision on summary judgment. Accordingly, Defendants' interest in maintaining the confidentiality of his identity outweighs any de minimis interest the public may have in knowing who this Deputy is.
B. Information in Deputy Burleson's Personnel File
The information in Deputy Burleson's personnel file which Defendants assert is confidential presents a different question. As the information Defendants seek to seal played a central role in the Court's decision that Plaintiff's Monell claims could go forward, the balance of interests tips heavily in favor of disclosure.
The only argument Defendants have made in favor of sealing portions of Deputy Burleson's personnel file is:
As the Sheriff's Department informed Plaintiff in a public document, Sheriff Hennessey determined that the Deputy did not commit misconduct. The portions of the Deputy's file that refer to a preliminary analysis of an ultimately unsustained citizen complaint, and its reflection on the state of the evidence prior to the Deputy's opportunity to present his side of the story (including expert evidence concerning the videotape of the incident), interferes with his right to privacy.
(Dkt. No. 119 ¶ 2 citing Pryor v. City of Clearlake, No. 11-0954, 2012 WL 3276992 (N.D. Cal. Aug. 9, 2012) (hereinafter " Pryor II ")). Defendants have not met their burden of showing compelling reasons.
First, Defendants have failed to make any particularized showing regarding the confidentiality of the Notice of Intent to Discipline in Deputy Burleson's personnel file and the related investigation. Instead, Defendants make a bald privacy objection to unsealing information regarding what was ultimately determined by former Sheriff Hennessy (also a defendant in this action) to be an "unsustained" allegation of excessive force. "Simply invoking a blanket claim, such as privacy or law enforcement, will not, without more, suffice to exempt a document from the public's right of access." Kamakana, 447 F.3d at 1185. Defendants' cursory privacy claim is thus insufficient to overcome the public's interest in understanding the basis for the Court's decision that Plaintiff's Monell claim against the City and County of San Francisco could proceed. Because the content of the Notice of Intent to Discipline and Sheriff Hennessey's actions in response were significant factors in the Court's decision, the probative value of this information far outweighs Defendants' privacy interest. This is especially so given that the jury in this case will be asked to decide whether Deputy Burleson is, in fact, liable for excessive force; it is not as though the excessive force accusation is a secret.
Second, Defendant's reliance on Pryor v. City of Clearlake, No. 11-0954 CW, 2012 WL 3276992 (N.D. Cal. Aug. 9, 2012) (" Pryor II ") is misplaced. In Pryor II, and its predecessor opinion, Pryor v. City of Clearlake, No. 11-0954 CW, 2012 WL 2711032 (N.D. Cal. July 6, 2012) (" Pryor I"), the court considered the propriety of a request for sealing in a Section 1983 excessive force action. The court's analysis began with the premise that "[t]he public has a strong interest in information concerning the prosecution of civil rights actions, including lawsuits that allege police misconduct, and an interest in understanding the judicial process." Pryor I, 2012 WL 2711032, at *2. In Pryor I, the court applied the compelling interest standard and sealed only that information which was irrelevant, sensitive, private, and where there was a likelihood that "it was filed... because of private spite or a desire to scandalize the public." Pryor I, 2012 WL 2711032, at *1-2. In Pryor II, the court sealed information relating to a prior Internal Affairs investigation of an unrelated incident relating to one of the defendant officers because it was lacking in probative value. Pryor II, 2012 WL 3276992 at *3. In so holding, the court repeatedly recognized "that the lack of relevance of the sensitive information is not dispositive as to whether a sealing order is warranted, but underscores the privacy interest in sealing such information." Id. at *4. However, the court declined to seal a log of police officers who had watched an ethics training video because the plaintiff's lawsuit included a Monell claim against the city for failure to adequately train its officers. See id. at *4. Thus, the Pryor court looked both at whether the party requesting sealing could establish a compelling reason for sealing and whether the documents were probative to the subject matter of the underlying lawsuit. Here, the summary judgment Order statements sought to be sealed could not be more probative to the Court's decision.
The Court has considered whether portions of its own Order on summary judgment are properly sealable and concludes that they are not. Given the probative value of this information, the public's right to disclosure outweighs Defendants' interest in maintaining the confidentiality of the information. Accordingly, the Court UNSEALS its prior Order granting in part and denying in part Defendants' Motion for Partial Summary Judgment (Dkt. No. 115) with the exception of the identity of the Deputy referenced in footnote 6.
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September 20, 2010
THANG D. HUYNH, PLAINTIFF,v.MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
On August 12, 2009, Thang D. Huynh ("Plaintiff" or "Claimant") filed a complaint seeking review of the decision by the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for Supplemental Security Income ("SSI") disability benefits. The Commissioner filed an Answer on January 12, 2010. On April 29, 2010, the parties filed a Joint Stipulation ("JS"). The matter is now ready for decision.
Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record ("AR"), the Court concludes that the Commissioner's decision should be reversed and remanded for further proceedings in accordance with law and with this Memorandum Opinion and Order.
Plaintiff is a 49 year old male who was determined to have the medically determinable severe physical impairments of non-insulin diabetes mellitus with peripheral neuropathy, hypertension, and obesity. (AR 15.) He has not engaged in substantial gainful activity since March 7, 2007, the filing date of his current SSI application. (AR 15.)
Plaintiff's claim was denied initially and on reconsideration. (AR 13.) He filed a timely request for hearing, which was held before Administrative Law Judge ("ALJ") James D. Goodman on November 20, 2008. (AR 13.) Claimant appeared and testified through a Vietnamese interpreter. Claimant was represented by counsel.
The ALJ issued an unfavorable decision on February 25, 2009. (AR 13-20.) The ALJ determined that Plaintiff had the residual functional capacity ("RFC")*fn1 to perform his prior work as a fish cleaner and self-employed salvager, and thus was not disabled within the meaning of the Social Security Act. (AR 19.) The Claimant appealed this decision and, on June 25, 2009, the Appeals Council denied review. (AR 1-4.)
As reflected in the Joint Stipulation, the disputed issues that Plaintiff is raising as grounds for reversal and remand are as follows:
1. Whether the ALJ properly found that Claimant did not suffer from a severe mental impairment.
2. Whether the ALJ properly determined that Claimant could perform his past relevant work.
Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine whether the ALJ's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991).
Substantial evidence means "'more than a mere scintilla' but less than a preponderance." Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (internal quotations and citations omitted). This Court must review the record as a whole and consider adverse as well as supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where evidence is susceptible to more than one rational interpretation, the ALJ's decision must be upheld. Morgan v. Comm'r, 169 F.3d 595, 599 (9th Cir. 1999). The ALJ has the responsibility "to determine credibility, resolve conflicts in medical testimony and resolve ambiguities," but the ALJ's findings must be supported by "specific, cogent reasons." Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998.) A reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence. Robbins, 466 F.3d at 882 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
The ALJ's step two determination that Plaintiff's mental impairment is not severe is unsupported by substantial evidence and must be reversed. The ALJ also improperly rejected the treating psychiatrists' opinions and evidence of Plaintiff's mental limitations. The ALJ's RFC and step four determination that Plaintiff can perform his prior relevant work must be reversed because they do not contain any mental limitations.
A. The Sequential Evaluation
The Social Security Act defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or . . . can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has established a five-step sequential process to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920.
The first step is to determine whether the claimant is presently engaging in substantially gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or combination of impairments. Parra, 481 F.3d at 746. Third, the ALJ must determine whether the impairment is listed, or equivalent to a listed impairment, in Appendix I of the regulations. Id. If the impediment meets or equals one of the listed impairments, the claimant is presumptively disabled. Bowen, 482 U.S. at 141. Fourth, the ALJ must determine whether the impairment prevents the claimant from doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). If the claimant cannot perform his or her past relevant work, the ALJ proceeds to the fifth step and must determine whether the impairment prevents the claimant from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000).
The claimant bears the burden of proving steps one through four, consistent with the general rule that at all times the burden is on the claimant to establish his or her entitlement to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the claimant, the burden shifts to the Commissioner to show that the claimant may perform other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006).
B. The ALJ's Step Two Determination
At step two of the five step sequential inquiry, the ALJ determines whether the claimant has a medically severe impairment or combination of impairments. Bowen, 482 U.S. at 140-141. An impairment is not severe if it does not significantly limit the claimant's ability to work. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). The ALJ, however, must consider the combined effect of all the claimant's impairments on his ability to function, regardless of whether each alone was sufficiently severe. Id. Also, the ALJ must consider the claimant's subjective symptoms in determining severity. Id.
The step two inquiry is a de minimis screening device to dispose of groundless claims. Bowen, 482 U.S. at 153-154. An impairment or combination of impairments can be found nonsevere only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work. Smolen, 80 F.3d at 1290; Social Security Ruling ("SSR") 85-28; Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (adopting SSR 85-28).
In this case, the ALJ determined at step two of the sequential process that Plaintiff's depressive disorder, NOS, was not severe.
C. Evidence Regarding Plaintiff's Physical and Mental Impairments
Plaintiff is a refugee immigrant from Vietnam who speaks only limited English. (AR 30.) He had but a fifth grade education in Vietnam. (AR 30.) His father was killed in 1969 by the Vietnamese military and his mother died of lung disease. (AR 281.) He fled Vietnam in 1980, stayed in a refugee camp in Thailand for a year, and came to the United States in 1981. (AR 281.) He first married in 1991 but his wife died. (AR 281.) He married again in 2003 but is now divorced. (AR 281.) He had a son but has no contact with him. (AR 281.) He has a sister with an unspecified mental illness. (AR 250, 281.)
Plaintiff seeks SSI benefits for both physical and mental impairments. With regard to physical impairments, his treatingphysician Dr. Vinh Xuan Nguyen, M.D., of Fairview Medical Clinic provided three reports dated April 14, 2003, November 29, 2005, and April 20, 2007 (AR 16), as well as progress notes. (AR 270-71, 273-75, 277-78.) These medical records indicate that Plaintiff received care for diabetes mellitus Type 2, arterial hypertension, and overweight/joint pain. Treatment has included Atenolol, Verapamil and Norvase for hypertension; Glypizide, Metformin and Furosemide for diabetes; Allopurinol for gout; Glimepride for numbness; Gemfibrozil and Niacin for high cholesterol; and Piroxicam, Ibuprofen and Aspirin for pain. (AR 44-50, 110, 142, 152, 257, 268, 272.) Claimant also was referred to consulting examiner Dr. Sean To for an independent internal medicine evaluation. (AR 214-19.) Dr. To indicated that Plaintiff's diabetes is not very well controlled, resulting in fatigue, blurry vision and numbness in the toes. (AR 214-15, 217.) There is evidence of peripheral neuropathy. (AR 217.) Dr. To recommended that Claimant should avoid driving due to the diabetes. (AR 219.) Notwithstanding these physical impairments, Dr. To's assessed RFC gives limitations that indicate that the Claimant is capable of performing medium work. (AR 17.) State agency reviewing physicians concluded that Plaintiff could perform the full range of medium work. (AR 17.) Plaintiff does not challenge here the ALJ's evaluation of his physical impairments.
With regard to mental impairments, Claimant received psychiatric care at Arcadia Mental Health Center ("Arcadia") from November 3, 2005, to October 12, 2006, and again since April 11, 2007. (AR 17, 237-55, 279-334.) During his initial visits, he reported thinking of suicide, difficulty in sleeping, hearing voices, seeing dead people, and feeling hopeless and helpless. (AR 239.) He was diagnosed with major depression with psychotic features (Code 296.33) and assessed a Global Assessment of Functioning ("GAF") score of 40.*fn2
(AR 239.) He was prescribed the medication Luvox. (AR 239.) The Arcadia treatment records are extensive (AR 237-55, 279-334) and Claimant was seen by several Arcadia psychiatrists who all were in agreement with the major depression diagnosis.
One of his treating psychiatrists, Dr. Chin Choo, prepared a report dated February 1, 2008, reconfirming the initial Arcadia diagnosis. (AR 279-87.) He reports a long history of worsening depression, nightmares, paranoia and occasional suicidal ideation. (AR 280.) His history includes repeated episodes of decompensation with periods of symptom exacerbation and a loss of adaptive functioning in the areas of daily activities, social functioning, concentration, and task completion. (AR 280.) He assessed Claimant as having marked impairment in daily activities, with little significant improvement expected. (AR 283, 285.) Dr. Choo's diagnosis was major depressive disorder, recurrent, severe, with psychotic features (Code 296.34). (AR 283, 285.) Treatment has included Cymbalta and Risperdal for psychosis. (AR 48-49.) These medications have machinery and driving warnings. (AR 49.)
In stark contrast to the Arcadia psychiatric evidence is the July 17, 2007, complete psychiatric evaluation of consulting examiner Dr. Jason Yang. (AR 220-23.) Claimant informed Dr. Yang of his history of mental and emotional problems, including memory loss, nightmares, insomnia, depression, and stress. (AR 220.) Claimant also informed him that he had been seeing Dr. Choo and was on Cymbalta. (AR 220-21.) According to Dr. Yang, Claimant presented no obsessions or delusions. According to Dr. Yang, he denied having "any suicidal or homicidal ideation." (AR 222.) He denied any hallucinations. (AR 333.) Dr. Yang diagnosed Plaintiff with depressive disorder NOS and a GAF of 65. (AR 222.) Dr. Yang states, "The mental status examination today revealed no evidence of cognitive deficits, perceptual disturbances or delusional disorders at this time." (AR 223.) Dr. Yang's source of information was Claimant. (AR 220.) There were no medical or psychiatric records available for review. (AR 221.)
Two reviewing State psychiatrists provided reports on September 27, 2007 (AR 194-206) and November 28, 2007 (AR 210-11), assessing Plaintiff with depressive disorder, NOS, nonsevere. These reports were subsequent to Dr. Yang's report and one makes reference to it (AR 206), but there is no indication that they reviewed the Arcadia psychiatric records. They certainly did not see Dr. Choo's February 1, 2008, report.
At the November 20, 2008, hearing, the ALJ did not question Plaintiff about his alleged mental impairments. Plaintiff's counsel did, and Plaintiff testified that he has nightmares, hears voices, has suicidal thoughts, and sees people in his dreams who want to kill him, which scares him. (AR 50-51.) The ALJ again did not question him. Plaintiff's counsel expressed surprise that the Arcadia medical records, which had been sent on February 29, 2008, had been added to the record "only recently." (AR 52.) Plaintiff's counsel stressed the importance of Dr. Choo's February 5, 2008, report but the ALJ responded, "I'm going to take the matter under advisement. If I need further development I'll notify you because I find that to be a new untested impairment at this point in time." (AR 53.)
The ALJ accepted the findings of Dr. Yang and the State reviewing psychiatrists, and rejected the report of Dr. Choo. (AR 15-19.) He accepted Dr. Yang's diagnosis of depressive disorder, NOS, and the reviewing psychiatrists' assessment of this impairment as nonsevere. (AR 15, 17.) The ALJ concluded that Plaintiff has "no mental limitations" (AR 18) that would interfere with his performance of gainful activity. (AR 19.)
D. The ALJ Improperly Evaluated Plaintiff's Mental Impairment
The ALJ's step two determination that Plaintiff's mental impairment is nonsevere is not supported by substantial evidence. The ALJ also improperly rejected extensive psychiatric evidence from the Arcadia treating psychiatrists in favor of nontreating examining and nonexamining reviewing psychiatrists whose opinions were tendered without reviewing the extensive Arcadia psychiatric evidence, including Dr. Choo's report.
In evaluating medical opinions, the case law and regulations distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (non-examining, or consulting, physicians). See 20 C.F.R. §§ 404.1502, 416.927; see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Treating physicians are entitled to "special weight," Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988), indeed the "greatest weight." Orn, 495 F.3d at 632. Greater weight is given treating physician opinions than other physicians' opinions because treating physicians are "employed to cure and thus have the greatest opportunity to know and observe the patient . . ." Smolen, 80 F.3d at 1285; see also Orn, 495 F.3d at 633 (treating relationship provides a "unique perspective"). The ALJ may not reject a treating physician's opinion, even if contradicted, unless he or she makes findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence. Smolen, 80 F.3d at 1285.
Where a treating physician's opinion is contradicted by an examining professional's opinion, the Commissioner may resolve the conflict by relying on the examining physician's opinion if the examining physician's opinion is supported by different, independent clinical findings or other evidence in the record. See Andrews v. Shalala, 53 F.3d 1035, 1041-42 (9th Cir. 1995); Orn, 495 F.3d at 632 (ALJ may reject opinion of treating physician in favor of examining physician whose opinion rests on independent clinical findings). Lastly, "[t]he opinion of a non-examining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician"; but such an opinion may serve as substantial evidence when it is consistent with and supported by other independent evidence in the record. Lester, 81 F.3d at 830-31; Morgan, 169 F.3d at 600.
Thus, based on these principles, the nonexamining reviewing State psychiatrists' opinions here can constitute substantial evidence on the basis of Dr. Yang's report. These opinions are of limited value in any event because they merely mirror Dr. Yang's diagnosis and are uninformed by the extensive Arcadia psychiatric evidence.
Much, then, turns on Dr. Yang's four page report. (AR 220-23.) To begin, the ALJ overstates Dr. Yang's diagnosis in saying, "Dr. Yang opined that the claimant did not have any major mental limitations." (AR 17.) Dr. Yang did not make such a statement or give that opinion. Aware that Claimant had been receiving psychiatric care and was taking Cymbalta, Dr. Yang carefully limited his opinion: "The mental status examination today revealed no evidence of cognitive deficits, perceptual disturbances or delusional disorders at this time." (AR 223 (emphasis added).) Dr. Yang did not reject the history of mental problems related to him by Claimant. The ALJ, however, used Dr. Yang's one point in time assessment of Plaintiff's symptoms on the day of his visit to reject years of contrary Arcadia psychiatric evidence of more serious mental illness. Dr. Yang's opinion does not consider or address that evidence or the period of time it covers.
Dr. Yang, moreover, did not request the Arcadia medical records, even though he was aware Claimant was being seen by a psychiatrist and was on medication. Nor did the State reviewing psychiatrists seek the Arcadia records, although they also knew of Plaintiff's prior psychiatric treatment from Dr. Yang's report, which they cite. Despite the apparent conflict between the Arcadia evidence and Dr. Yang's opinion, the ALJ did not provide the Arcadia records to Dr. Yang or to the State agency reviewing psychiatrists for their review. The ALJ's failure to do so substantially lessens the probative value of the opinions of Dr. Yang and the State reviewers as a basis for rejecting the Arcadia psychiatric evidence as to the periods of time covered by it. The Court has serious doubts whether Dr. Yang and the State reviewers would have offered the same assessment of Plaintiff had they seen the extensive Arcadia medical records.
The ALJ also gave unreasonably short shrift to the Arcadia evidence, focusing only on Dr. Choo's February 1, 2008, report. There are extensive progress notes, including from other treating psychiatrists than Dr. Choo who concurred in his diagnosis. The ALJ did not address the extensive psychiatric evidence in the treatment notes, nor acknowledge the other treating psychiatrists at Arcadia. The ALJ also asserts that there is no longitudinal history of mental complaints and/or mental health treatment. (AR 18.) Yet there are four years of progress notes in the Arcadia psychiatric evidence, all of it consistent as to Plaintiff's specific mental health complaints and treatment. Dr. Yang's opinion does not purport to reject it nor address the time period it covers, and cannot be used to do so.
Dr. Choo's report relates "repeated episodes of decompensation with periods of symptom exacerbation and a loss of adoptive functioning." (AR 280 (emphasis added).) This clinical evidence is consistent with fluctuating symptoms. The ALJ's determination that Plaintiff did not meet the special paragraph B criteria for a severe mental impairment was based on the State reviewing psychiatrist's finding that Claimant has experienced no episodes of decompensation which have been of extended duration. (AR 16, 202.) This finding, however, was made without awareness of Dr. Choo's evidence of decompensation episodes which is uncontradicted. Episodes of decompensation are more than "a slight abnormality" and require reversal without more of the ALJ's step two nonseverity determination. That conclusion is unsupported by substantial evidence and contrary to law.
The ALJ also asserts that there are inconsistencies in the Claimant's recitation of symptoms to Dr. Yang and Dr. Choo. (AR 18.) To Dr. Choo and other psychiatrists at Arcadia, Plaintiff repeatedly reported suicidal ideation, voices, and hallucinations. (AR 18-19.) He denied these symptoms were present or active at the time he visited Dr. Yang but he clearly was not denying they ever had occurred. Quite the contrary, Plaintiff told Dr. Yang of his history of mental illness and his symptoms. (AR 220.) As already noted, Dr. Yang was careful to say that Plaintiff did not present those symptoms "today" and "at this time." Dr. Yang did not deny that they occurred on other occasions. There is considerable evidence of suicidal ideation over one and a half years in the Arcadia psychiatric evidence that the ALJ does not address. (AR 239, 249, 250, 255, 296, 301.) The ALJ never looked for an explanation of the apparent inconsistency between Dr. Yang's and Dr. Choo's assessments; instead, he adopted Dr. Yang's assessment and then, assuming a direct conflict with Dr. Choo's report, rejected considerable other evidence that Dr. Yang's limited opinion plainly does not encompass. Thus, the supposed inconsistency is not a legitimate basis for rejecting the opinions of Dr. Choo and the other treating psychiatrists at Arcadia, or to reject Plaintiff's credibility. Additionally, the ALJ seems to dismiss Claimant's mental impairment by referring to it in quotation marks as "mental problems" (AR 13) or "symptoms" (AR 17), as if they are feigned. No physician suggested that Claimant was lying. Given his personal history, some level of depression, paranoia and suicidal ideation hardly would surprise. (AR 283.)
The ALJ also rejects Dr. Choo's diagnosis because of "a paucity of objective findings reported by Dr. Choo." (AR 18.) This finding is contrary to law and contrary to the evidence. Psychiatric impairments are not as amenable to substantiation by objective laboratory testing as are physical impairments. Hartman v. Bowen, 636 F. Supp. 129, 131- 32 (N.D. Cal. 1986). The diagnostic techniques necessarily will be less tangible. Lebus v. Harris, 526 F. Supp. 56, 60 (N.D. Cal. 1981). Mental disorders cannot be "ascertained and verified" like physical ailments. Hartman, 636 F. Supp. at 132. Thus, in the case of mental illness, clinical and laboratory data may consist of "the diagnoses and observations of professional psychiatrists and psychologists." Id. Additionally, the Ninth Circuit requires that the Commissioner must give proper weight to the subjective elements of a physician's opinion. Embrey, 849 F.2d at 422.
There is in any event extensive clinical, observational evidence in the Arcadia progress notes, including GAF scores, that the ALJ never addresses or mentions. Ironically, Dr. Yang's report is based solely on Claimant's statements.
The ALJ also discounts Dr. Choo's diagnosis because of conservative and infrequent treatment and no psychiatric hospitalization. (AR 18-19.) Plaintiff, however, is a refugee immigrant with a fifth grade education who speaks little English and has limited financial means. He is after all mentally ill, even according to Dr. Yang, the State psychiatrists, and the ALJ. These factors lessen the weight to be given Plaintiff's periodic Arcadia visits. The fact that he could be far worse does not mean that his mental impairment is not severe. Episodes of decompensation say otherwise.
The ALJ, then, improperly rejected the treating Arcadia psychiatrists' opinions. The ALJ did not provide specific and legitimate reasons supported by substantial evidence to justify doing so. The opinions of the Arcadia treating psychiatrists must be given greater weight in assessing Plaintiff's limitations than those of Dr. Yang and the State reviewers. Carmickle v. Comm'r, Soc. Sec. Adm., 533 F.3d 1155, 1164 (9th Cir. 2008) (physicians with the most significant clinical relationship with the claimant are generally entitled to more weight than those physicians with lesser relationship).
E. Disposition
The ALJ's step two determination that Plaintiff's mental impairment is not severe is reversed. The ALJ's RFC and step four determination that Plaintiff can perform his prior relevant work also must be reversed because they do not contain any mental limitations.
Additionally, on remand the Commissioner should consider the limitations on driving due to Plaintiff's diabetes and psychiatric medications. (AR 49, 219.) The State reviewer also indicated that Plaintiff could not sit or stand for six hours due to his physical ailments. (AR 206.) The Court is not clear whether Plaintiff's prior recycling work was substantial gainful employment or a recognized job classification as it was performed. There was no vocational evidence presented at the November 20, 2008, hearing.
IT IS HEREBY ORDERED that the Decision of the Commissioner of Social Security is reversed and remanded for further proceedings in accordance with law and with this Memorandum Opinion and Order.
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Temukan 50 Gamecard karakter BoBoiBoy TheMovie setiap pembelian Choki-Choki bertanda khusus, dan mainkankartunya dengan aplikasi "Choki Choki AR BoBoiBoy".Temukan juga Gold Card (Kartu Emas) yang dapat ditukarkan dengantiket menonton BoBoiBoy The Movie di bioskop-bioskop terdekat.Choki-Choki akan hadir perdana dalam film layar lebar "BoBoiBoyThe Movie".Untuk menambah keseruannya Choki-Choki memberikan gamecard secaragratis dan bisa dimainkan dengan teknologi Augmented Reality yangbisa membuat karakter menjadi hidup.BoBoiBoy The Movie bercerita tentang petualangan seru BoBoiBoydan teman-temannya di pulau misteri tempat tinggal Klamkabot sangtetua pembuat Sfera Kuasa.Di pulau misteri ini BoBoiBoy akan bertemu musuh terkuatnya,yaitu Borara seorang pemburu alien yang mencari kekuatan SferaKuasa untuk menguasai seluruh antariksa. Saatnya pertarungan antaraBoBoiBoy dan alien terkuat seantariksa demi melindungi Sfera Kuasadan teman-temannya.Kumpulkan dan mainkan seluruh karakter baru BoBoiBoy dan paramusuh yang belum pernah dilihat sebelumnya.Feature:• 50 karakter BoBoiBoy & Friend• Lebih dari 10 musuh baru• Pertarungan seru antara BoBoiBoy & Friend dengan musuh-musuhbaru** Minimum Requirement : OS Android 4.4 (Kit Kat), 2GB RAM** Facebook Page :https://www.facebook.com/chokichokiindonesia/Discover 50 Gamecardcharacter BoBoiBoy The Movie Choki-Choki every purchase ofspecially marked, and play cards with the application "Choki ChokiAR BoBoiBoy".Discover also Gold Card (Gold) can be exchanged for tickets towatch BoBoiBoy The Movie in theaters everywhere.Choki-Choki will attend a movie premiere in "BoBoiBoy TheMovie".To add Choki-Choki have fun giving gamecard free of charge and canbe played with Augmented Reality technology that can make thecharacters come alive.BoBoiBoy The Movie tells the story of an adventure BoBoiBoy andhis friends on the island mystery Klamkabot residence elderAuthorization Sfera maker.In this mystery island BoBoiBoy will meet strongest enemy,namely Borara an alien hunter who sought the power Sfera power tocontrol the entire space. It's time to fight between BoBoiBoy andaliens strongest seantariksa to protect Sfera Authorization andfriends.Collect and play BoBoiBoy whole new character and the enemy whohas never seen before.feature:• 50 characters BoBoiBoy & Friend• More than 10 new enemies• intriguing battle between BoBoiBoy & Friend with newenemies** Minimum Requirements: OS Android 4.4 (Kit Kat), 2GB RAM** Facebook Page: https://www.facebook.com/chokichokiindonesia/
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text:
Community mourns tragic loss of Penn Valley mother, child
September 25, 2012
A community congregated at St. Patrick's Catholic Church in Grass Valley to grieve collectively over the tragic death of a Penn Valley woman and her daughter.
Cynthia Peterlin, 42, and her daughter, Sophie Peterlin, 12, were killed when a boat piloted by Paul Peterlin, 42, was struck by a watercraft allegedly operated by 53-year-old Jeffrey Sandow of Auburn, according to Lt. Damon Gil, spokesman for the Yuba County Sheriff's Office.
Sandow was allegedly intoxicated at the time.
However, not even a hint of outrage was expressed during Friday's ceremony; instead, those collected expressed sadness over the brevity of the lives of Cynthia and Sophie Peterlin, while celebrating their personal attributes and vast array of interests.
"In a way, Sophie was a typical girl," said Edee Wood, principal of Mt. St. Mary's, where Sophie attended the eighth grade. "But there was nothing typical about Sophie."
The young girl combined an interest in typical pre-teen things, such as clothes, hair and makeup, with a love for the outdoors, Wood said. She was fond of horses and tried out for the basketball team.
During Friday's ceremony, Sophie Peterlin's somber classmates carried items dear to her in a procession and laid them at the foot of the altar. The items included a basketball, her nail polish, her sunglasses, white roses — her favorite flower — and her Bible.
Also included was a letter from one of her classmates that read: "Dear Sophie, I miss you. I like you."
Wood praised Sophie Peterlin's ability to accomplish her academic goals with tenacity.
"She was a dreamer," Wood said. "But when she set a goal, she set out to accomplish it with determination."
Father Simon Twomey, who delivered the homily during the ceremony, praised Cynthia Peterlin for her commitment to her family and the community.
"She was so involved," he said. "She was a dynamic lady. Maybe the Lord wanted someone to wake up the rest of the people in heaven."
Paul Peterlin, who suffered serious injuries in the accident, remains hospitalized at Sutter-Roseville Medical Center.
He has been upgraded to fair condition. Brock Peterlin, son of Paul and Cynthia, said Paul continued to make progress in his recovery, via email to The Union Friday.
A memorial fund has been established to provide support to the Peterlin family. Those willing to donate may do so using one of several options.
A memorial fund has been established to provide support to the Peterlin family. Those willing to donate may do so using one of the following options.
To access the donation page, visit:
For Facebook users, a memorial page has been created. The link to the page is http://www.facebook.com/InMemoryOfCynthiaAndSophiePeterlin?ref=ts.
PayPal users may sign into their accounts and transfer money to email@example.com.
For supporters who desire to send a check, please make the check out to The Peterlin Family Memorial Fund. Please send the check to: Wells Fargo Bank, 17446 Penn Valley Dr., Penn Valley, CA 95946.
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text:
District of Labor Cases
Other Labor Litigation Cases, Dockets and Filings
Cases filed
Cases 1 - 10 of 104
Cruz Alvarado v. Eurasia Feather Inc. et al
as 1:2016cv00959
Defendant: Eurasia Feather, Inc. , Unknown Party
Plaintiff: Evelin Cruz Alvarado
Cause Of Action: Employment Discrimination
Franklin v. Costco Corporation et al
as 1:2016cv00951
Plaintiff: Charles Franklin, Jr.
Defendant: Costco Corporation , Global Enterprise Marketing
Cause Of Action: Petition for Removal - Employment Discrim
Spielvogel v. Lake Michigan College et al
as 1:2016cv00723
Plaintiff: Jennifer Spielvogel
Defendant: Lake Michigan College , Lake Michigan College Board of Trustees
Cause Of Action: Diversity-Breach of Contract
Van Houten v. Amerigas Propane, L.P.
as 1:2016cv00664
Defendant: Amerigas Propane, L.P
Plaintiff: Steven Van Houten
Cause Of Action: Job Discrimination (Age)
Hood v. United States Postal Service et al
as 1:2016cv00401
Plaintiff: Julian R. Hood, Jr.
Defendant: United States Postal Service, Megan J. Brennan, Maryl R. Rosen and others
Cause Of Action: Breach of Contract
United Government Security Officers of America International Union et al v. Entergy Nuclear Operations, Inc.
as 1:2016cv00337
Plaintiff: United Government Security Officers of America International Union , United Government Security Officers of America, Local 29
Defendant: Entergy Nuclear Operations, Inc.
Cause Of Action: Labor/Mgt. Relations (Contracts)
Committe v. Northern Michigan University et al
as 2:2016cv00081
Plaintiff: Bruce Committe
Defendant: Northern Michigan University , David Rayome , George Wilson and others
Cause Of Action: Job Discrimination (Age)
Bystry v. Royal Oak Industries, Inc.
as 1:2016cv00210
Plaintiff: Dusty A. Bystry
Defendant: Royal Oak Industries, Inc.
Cause Of Action: Worker Adjustment and Retraining Notification Act
Todd Greiner Farms Packing LLC et al v. Gabriel et al
as 1:2016cv00188
Plaintiff: Todd Greiner Farms Packing LLC , Todd M. Greiner , Sarah Greiner
Defendant: Luclera Gabriel, Jean Paul, Altega Severe and others
Cause Of Action: Declaratory Judgment
Zainea v. Farmers Insurance Exchange
as 1:2016cv00145
Plaintiff: Mark Zainea
Defendant: Farmers Insurance Exchange
Cause Of Action: Uniformed Services Employment and Reemployment Rights Act
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.