Catherine Mency v. Michael J Astrue, No. 2:2008cv02680 - Document 19 (C.D. Cal. 2008)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 CATHERINE MENCY, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) ) Defendant. ) ) ___________________________________) NO. CV 08-2680-E MEMORANDUM OPINION AND ORDER OF REMAND 18 19 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 20 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 21 judgment are denied and this matter is remanded for further 22 administrative action consistent with this Opinion. 23 24 PROCEEDINGS 25 26 Plaintiff filed a complaint on April 29, 2008, seeking review 27 of the Commissioner s denial of benefits. The parties filed a consent 28 to proceed before a United States Magistrate Judge on July 28, 2008. 1 Plaintiff filed a motion for summary judgment on October 30, 2008.1 2 Defendant filed a motion for summary judgment on November 25, 2008. 3 The Court has taken both motions under submission without oral 4 argument. See L.R. 7-15; Order, filed May 5, 2008. 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 Plaintiff asserts disability since January 1, 2001 or 9 December 1, 2003, based on, inter alia, alleged mental impairments 10 (Administrative Record ( A.R. ) 101-23, 354-61). Dr. Nasir, one of 11 Plaintiff s treating physicians, opined on April 30, 2007, that 12 Plaintiff s alleged mental illness markedly limits Plaintiff in 13 numerous respects (A.R. 230-31). 14 treating physicians, once rated Plaintiff s Global Assessment of 15 Functioning ( GAF ) at 50 (A.R. 187). 16 Plaintiff s treating physicians, opined Plaintiff suffers from 17 depression, although Dr. Waldron apparently has not rated the severity 18 of the alleged depression (A.R. 271). Dr. Kim, another of Plaintiff s Dr. Waldron, another of 19 20 The Administrative Law Judge ( ALJ ) found Plaintiff has no 21 severe mental impairment (A.R. 15). In rejecting the contrary opinion 22 of Dr. Nasir, the ALJ asserted, inter alia, that the opinion was not 23 supported by Dr. Nasir s treatment notes . . . (A.R. 15). 24 denied benefits (A.R. 10-20). 25 4-6). The ALJ The Appeals Council denied review (A.R. 26 1 27 28 Plaintiff s motion violates the 10-page limit imposed by the Court s scheduling order. See Order, filed May 5, 2008, at ¶ VI. Counsel for Plaintiff should heed court orders in the future. 2 STANDARD OF REVIEW 1 2 Under 42 U.S.C. section 405(g), this Court reviews the 3 4 Commissioner s decision to determine if: (1) the Commissioner s 5 findings are supported by substantial evidence; and (2) the 6 Commissioner used proper legal standards. 7 763 F.2d 1061, 1064 (9th Cir. 1985). See Swanson v. Secretary, 8 9 DISCUSSION 10 Social Security Ruling ( SSR ) 85-282 governs the evaluation of 11 12 whether an alleged impairment is severe : 13 14 An impairment or combination of impairments is found 15 not severe . . . when medical evidence establishes 16 only a slight abnormality or a combination of slight 17 abnormalities which would have no more than a minimal 18 effect on an individual s ability to work . . . i.e., 19 the person s impairment(s) has no more than a minimal 20 effect on his or her physical or mental ability(ies) 21 to perform basic work activities . . . 22 /// 23 /// 24 Great care should be exercised in applying the not 25 severe impairment concept. If an adjudicator is unable 26 27 28 2 Social Security rulings are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 3 1 to determine clearly the effect of an impairment or 2 combination of impairments on the individual s ability 3 to do basic work activities, the sequential evaluation 4 process should not end with the not severe evaluation 5 step. 6 7 If such a finding [of non-severity] is not clearly 8 established by medical evidence, however, adjudication 9 must continue through the sequential evaluation process. 10 SSR 85-28 at 22-23. 11 12 See also Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (the 13 severity concept is a de minimis screening device to dispose of 14 groundless claims ). 15 16 In the present case, the medical evidence does not clearly 17 establish [ ] the non-severity of Plaintiff s alleged mental 18 impairments. 19 (e.g., suicidal ideation, severe obsessional rituals, frequent 20 shoplifting) or any serious impairment in social, occupational, or 21 school functioning (e.g., no friends, unable to keep a job). 22 v. Commissioner, 169 F.3d 595, 598 n.1 (9th Cir. 1999); see Castaneda 23 v. Apfel, 2001 WL 210175 *3 (D. Or. Jan. 18, 2001) (GAF in this range 24 is indicative of a disabling level of impairments ). 25 received treatment and medication for her alleged mental impairments 26 (A.R. 222, 271). 27 mental impairments to be not only severe but disabling (A.R. 230-31). 28 The record contains considerable conflicting evidence, but these A GAF between 41 and 50 indicates serious symptoms Morgan Plaintiff has Dr. Nasir apparently believes Plaintiff s alleged 4 1 conflicts in the evidence do not clearly establish the non-severity 2 of Plaintiff s alleged mental impairments. 3 Administration s decision violated SSR 85-28 and the Ninth Circuit 4 authorities cited above. Accordingly, the 5 In attempted avoidance of this conclusion, Defendant argues 6 7 that an ALJ [properly] resolves conflicts and ambiguities in the 8 medical evidence . . . (Defendant s Motion at 10). 9 medical evidence concerning the severity of an alleged impairment is Whenever the 10 ambiguous, however, an ALJ errs by finding that the alleged 11 impairment is not severe. 12 (9th Cir. 2005). See Webb v. Barnhart, 433 F.3d 683, 687 13 14 The respect ordinarily owed to treating physicians opinions 15 buttresses the Court s conclusion that the ALJ erred. Treating 16 physicians opinions must be given substantial weight. 17 Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see Rodriguez v. Bowen, 876 18 F.2d 759, 762 (9th Cir. 1989) ( the ALJ must give sufficient weight to 19 the subjective aspects of a doctor s opinion . . . 20 true when the opinion is that of a treating physician ) (citation 21 omitted). 22 contradicted,3 if the ALJ wishes to disregard the opinion[s] of the 23 treating physician he . . . must make findings setting forth specific, 24 legitimate reasons for doing so that are based on substantial evidence 25 in the record. Embrey v. This is especially Even where the treating physician s opinions are Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) 26 3 27 28 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). 5 1 (citation, quotations and brackets omitted); see Rodriquez v. Bowen, 2 876 F.2d at 762 ( The ALJ may disregard the treating physician s 3 opinion, but only by setting forth specific, legitimate reasons for 4 doing so, and this decision must itself be based on substantial 5 evidence ) (citation and quotations omitted); McAllister v. Sullivan, 6 888 F.2d 599, 602 (9th Cir. 1989) ( broad and vague reasons for 7 rejecting the treating physician s opinions do not suffice). 8 9 Section 404.1512(e) of 20 C.F.R. provides that the 10 Administration will seek additional evidence or clarification from 11 your medical source when the report from your medical source contains 12 a conflict or ambiguity that must be resolved, the report does not 13 contain all of the necessary information, or does not appear to be 14 based on medically acceptable clinical and laboratory diagnostic 15 techniques. 16 ( If the ALJ thought he needed to know the basis of Dr. Hoeflich s 17 opinions in order to evaluate them, he had a duty to conduct an 18 appropriate inquiry, for example, by subpoenaing the physicians or 19 submitting further questions to them. 20 the hearing to augment the record ) (citations omitted); see also 21 Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) ( the ALJ has a 22 special duty to fully and fairly develop the record and to assure that 23 the claimant s interests are considered ). 24 ALJ should not have rejected Dr. Nasir s opinions as allegedly 25 unsupported by treatment notes without first seeking clarification of 26 the bases for Dr. Nasir s opinions. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) He could also have continued In the present case, the See id. 27 28 When a court reverses an administrative determination, the 6 1 proper course, except in rare circumstances, is to remand to the 2 agency for additional investigation or explanation. 3 537 U.S. 12, 16 (2002) (citations and quotations omitted). 4 proper where, as here, additional administrative proceedings could 5 remedy the defects in the decision. 6 599, 603 (9th Cir. 1989); see generally Kail v. Heckler, 722 F.2d 7 1496, 1497 (9th Cir. 1984). INS v. Ventura, Remand is McAllister v. Sullivan, 888 F.2d 8 9 The Ninth Circuit s decision in Harman v. Apfel, 211 F.3d 1172 10 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) ( Harman ) does not 11 compel a reversal rather than a remand of the present case. 12 Harman, the Ninth Circuit stated that improperly rejected medical 13 opinion evidence should be credited and an immediate award of benefits 14 directed where (1) the ALJ has failed to provide legally sufficient 15 reasons for rejecting such evidence, (2) there are no outstanding 16 issues that must be resolved before a determination of disability can 17 be made, and (3) it is clear from the record that the ALJ would be 18 required to find the claimant disabled were such evidence credited. 19 Harman at 1178 (citations and quotations omitted). 20 arguendo, the Harman holding survives the Supreme Court s decision in 21 INS v. Ventura, 537 U.S. 12, 16 (2002),4 the Harman holding does not 22 direct reversal of the present case. 23 recontact Dr. Nasir concerning outstanding issues that must be 24 resolved before a determination of disability can be made. 25 it is not clear from the record that the ALJ would be required to find In Assuming, Here, the Administration must Further, 26 27 28 4 The Ninth Circuit has continued to apply Harman despite INS v. Ventura. See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). 7 1 Plaintiff disabled for the entire claimed period(s) of disability were 2 the opinions of Dr. Nasir credited. 3 4 CONCLUSION 5 For all of the foregoing reasons,5 Plaintiff s and Defendant s 6 7 motions for summary judgment are denied and this matter is remanded 8 for further administrative action consistent with this Opinion. 9 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 12 DATED: December 3, 2008. 13 14 ______________/S/_______________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that a directive for the immediate payment of benefits would be inappropriate. 8

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