Fred Averbach v. Michael J. Astrue, No. 2:2009cv03906 - Document 21 (C.D. Cal. 2010)

Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that plaintiffs request for relief is granted, and the Commissioner shall award both Title II and SSI disability benefits to plaintiff. See order for further details. (jy)

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Fred Averbach v. Michael J. Astrue Doc. 21 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 FRED AVERBACH, 11 Plaintiff, 12 vs. 13 MICHAEL J. ASTRUE, Commissioner of Social Security, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) Case No. CV 09-3906-RC OPINION AND ORDER 16 17 Plaintiff Fred Averbach filed a complaint on June 4, 2009, 18 seeking review of the Commissioner s decision denying his applications 19 for disability benefits. 20 answered the complaint, and the parties filed a joint stipulation on 21 February 4, 2010. On November 17, 2009, the Commissioner 22 23 24 BACKGROUND On January 7, 2000, plaintiff, who was born on January 7, 1946, 25 first applied for disability benefits under Title II of the Social 26 Security Act ( Act ), 42 U.S.C. § 423, and the Supplemental Security 27 Income program ( SSI ) of Title XVI of the Act, claiming an inability 28 to work since June 19, 1998, due to depression, asthma and kidney Dockets.Justia.com 1 stones. A.R. 182-86, 190. After his applications were denied, an 2 administrative hearing was held before Administrative Law Judge 3 Richard L. Leopold ( ALJ Leopold ), A.R. 21-25, 180, 554, 578-82, who 4 issued a decision on August 21, 2001, finding plaintiff is not 5 disabled. 6 of review, A.R. 6-11, 549-52, plaintiff filed a complaint in this 7 district court challenging the denial of disability benefits to him. 8 See Averbach v. Barnhart, CV 03-6303-RC ( Averbach I ).1 9 January 9, 2004, pursuant to the parties stipulation, this Court A.R. 12-20, 540-48. Following the Appeals Council s denial On 10 remanded the matter to the Social Security Administration under 11 sentence four of 42 U.S.C. § 405(g). A.R. 559-64. 12 13 The Appeals Council, in turn, remanded the matter to ALJ Leopold, 14 who held further administrative proceedings, A.R. 485, and on July 7, 15 2005, ALJ Leopold issued a decision again finding plaintiff is not 16 disabled. 17 ALJ Leopold had failed to comply with its order of remand, A.R. 471- 18 75, and ordered another ALJ, Sherwin F. Biesman ( the ALJ ), to hold 19 further administrative proceedings. 20 the ALJ issued a decision finding plaintiff is not disabled, A.R. 850- 21 57, and on July 18, 2008, the Appeals Council again remanded the mat- 22 ter to the ALJ for further proceedings. 23 2009, the ALJ held further administrative proceedings, A.R. 520-39, 24 and on March 30, 2009, the ALJ again issued a decision finding 25 plaintiff is not disabled. 26 review, A.R. 444-45, and the ALJ s decision is now before the Court. A.R. 481-88. Upon review, the Appeals Council determined A.R. 507-19. A.R. 454-64. On April 7, 2008, A.R. 867-70. On January 21, The Appeals Council declined 27 1 28 Pursuant to Fed. R. Evid. 201, this Court takes judicial notice of relevant documents in Averbach I. 2 1 DISCUSSION 2 I 3 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 4 review the Commissioner s decision denying plaintiff disability 5 benefits to determine whether his findings are supported by 6 substantial evidence and whether the Commissioner used the proper 7 legal standards in reaching his decision. 8 586, 591 (9th Cir. 2009); Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th 9 Cir. 2009). Vasquez v. Astrue, 572 F.3d The claimant is disabled for the purpose of receiving 10 benefits under the Act if he is unable to engage in any substantial 11 gainful activity due to an impairment which has lasted, or is expected 12 to last, for a continuous period of at least twelve months. 13 §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). 14 The claimant bears the burden of establishing a prima facie case of 15 disability. 16 cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 17 1289 (9th Cir. 1996). 18 insured status for Title II purposes2 expired on December 31, 2001,3 42 U.S.C. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), In this case, since plaintiff s disability 19 20 21 22 23 24 25 26 27 2 Title II is an insurance program. Enacted in 1935, it provides old-age, survivor, and disability benefits to insured individuals irrespective of financial need. Title XVI is a welfare program. Enacted in 1972, it provides SSI benefits to financially needy individuals who are aged, blind, or disabled regardless of their insured status. Bowen v. Galbreath, 485 U.S. 74, 75, 108 S. Ct. 892, 893, 99 L. Ed. 2d 68 (1988) (citations omitted). As such, there is no date last insured for purposes of SSI benefits; rather, benefits are generally payable to individuals eligible for SSI beginning the month following the month [the individual] filed the application for benefits. 20 C.F.R. § 416.335. 3 28 The ALJ determined plaintiff last met the disability insured status requirements on December 31, 2001, A.R. 459, and 3 1 plaintiff must prove he was either permanently disabled or subject to 2 a condition which became so severe as to disable him prior to that 3 date. 4 v. Comm r of the Soc. Sec. Admin., 160 F.3d 587, 589 (9th Cir. 1998). Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998); Armstrong 5 6 The Commissioner has promulgated regulations establishing a five- 7 step sequential evaluation process for the ALJ to follow in a 8 disability case. 9 the ALJ must determine whether the claimant is currently engaged in 20 C.F.R. §§ 404.1520, 416.920. In the First Step, 10 substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). 11 If not, in the Second Step, the ALJ must determine whether the 12 claimant has a severe impairment or combination of impairments 13 significantly limiting him from performing basic work activities. 14 C.F.R. §§ 404.1520(c), 416.920(c). 15 must determine whether the claimant has an impairment or combination 16 of impairments that meets or equals the requirements of the Listing of 17 Impairments ( Listing ), 20 C.F.R. § 404, Subpart P, App. 1. 18 C.F.R. §§ 404.1520(d), 416.920(d). 19 ALJ must determine whether the claimant has sufficient residual 20 functional capacity despite the impairment or various limitations to 21 perform his past work. 22 in Step Five, the burden shifts to the Commissioner to show the 23 claimant can perform other work that exists in significant numbers in 24 the national economy. 25 Moreover, where there is evidence of a mental impairment that may 26 prevent a claimant from working, the Commissioner has supplemented the If so, in the Third Step, the ALJ 20 If not, in the Fourth Step, the 20 C.F.R. §§ 404.1520(f), 416.920(f). If not, 20 C.F.R. §§ 404.1520(g), 416.920(g). 27 28 20 plaintiff does not challenge this finding. 4 1 five-step sequential evaluation process with additional regulations 2 addressing mental impairments.4 3 Admin., 154 F.3d 913, 914-15 (9th Cir. 1998) (per curiam). Maier v. Comm r of the Soc. Sec. 4 5 Applying the five-step sequential evaluation process, the ALJ 6 found plaintiff has not engaged in substantial gainful activity since 7 his alleged onset date. 8 does not have a severe impairment or combination of impairments; 9 therefore, he is not disabled.5 10 The ALJ then found plaintiff (Step Two). // 11 (Step One). // 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 First, the ALJ must determine the presence or absence of certain medical findings relevant to the ability to work. 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1). Second, when the claimant establishes these medical findings, the ALJ must rate the degree of functional loss resulting from the impairment by considering four areas of function: (a) activities of daily living; (b) social functioning; (c) concentration, persistence, or pace; and (d) episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(2-4), 416.920a(c)(2-4). Third, after rating the degree of loss, the ALJ must determine whether the claimant has a severe mental impairment. 20 C.F.R. §§ 404.1520a(d), 416.920a(d). Fourth, when a mental impairment is found to be severe, the ALJ must determine if it meets or equals a Listing. 20 C.F.R. §§ 404.1520a(d)(2), 416.920a(d)(2). Finally, if a Listing is not met, the ALJ must then perform a residual functional capacity assessment, and the ALJ s decision must incorporate the pertinent findings and conclusions regarding the claimant s mental impairment, including a specific finding as to the degree of limitation in each of the functional areas described in [§§ 404.1520a(c)(3), 416.920a(c)(3)]. 20 C.F.R. §§ 404.1520a(d)(3), (e)(2), 416.920a(d)(3), (e)(2). 5 In reaching this conclusion, the ALJ found plaintiff has mild limitations in his activities of daily living, mild difficulties in social functioning and maintaining concentration, persistence or pace, and he has experienced no episodes of decompensation. A.R. 403. 5 II 1 2 The Step Two inquiry is a de minimis screening device to dispose 3 of groundless claims. Smolen, 80 F.3d at 1290; Webb v. Barnhart, 433 4 F.3d 683, 687 (9th Cir. 2005). 5 including a severity requirement at Step Two of the sequential 6 evaluation process increases the efficiency and reliability of the 7 evaluation process by identifying at an early stage those claimants 8 whose medical impairments are so slight that it is unlikely they would 9 be found to be disabled even if their age, education, and experience The Supreme Court has recognized that 10 were taken into account. Bowen v. Yuckert, 482 U.S. 137, 153, 107 11 S. Ct. 2287, 2297, 96 L. Ed. 2d 119 (1987). 12 stringent application of the severity requirement violates the Act by 13 denying disability benefits to claimants who meet the statutory 14 definition of disabled. 15 1994). However, an overly Corrao v. Shalala, 20 F.3d 943, 949 (9th Cir. 16 17 A severe impairment or combination of impairments within the 18 meaning of Step Two exists when there is more than a minimal effect on 19 an individual s ability to do basic work activities. 20 at 686; Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); see 21 also 20 C.F.R. §§ 404.1521(a), 416.921(a) ( An impairment or 22 combination of impairments is not severe if it does not significantly 23 limit [a person s] physical or mental ability to do basic work 24 activities. ). 25 necessary to do most jobs, including physical functions such as 26 walking, standing, sitting, lifting, pushing, pulling, reaching, 27 carrying or handling, as well as the capacity for seeing, hearing and 28 speaking, understanding, carrying out, and remembering simple Webb, 433 F.3d Basic work activities are the abilities and aptitudes 6 1 instructions, use of judgment, responding appropriately to 2 supervision, co-workers and usual work situations, and dealing with 3 changes in a routine work setting. 20 C.F.R. §§ 404.1521(b), 4 416.921(b); Webb, 433 F.3d at 686. If the claimant meets his burden 5 of demonstrating he suffers from an impairment affecting his ability 6 to perform basic work activities, the ALJ must find that the 7 impairment is severe and move to the next step in the SSA s five- 8 step process. 9 2001) (emphasis in original); Webb, 433 F.3d at 686. Edlund v. Massanari, 253 F.3d 1152, 1160 (9th Cir. 10 11 The ALJ found at Step Two that plaintiff does not have a severe 12 impairment or combination of impairments. However, plaintiff contends 13 this finding is not supported by substantial evidence because the ALJ 14 did not properly consider the medical opinions of plaintiff s treating 15 psychiatrist, William Vicary, M.D., and other medical evidence, did 16 not properly address plaintiff s asthma, erroneously determined 17 plaintiff was not a credible witness, and improperly discounted lay 18 witness testimony. 19 20 The medical opinions of treating physicians are entitled to 21 special weight because the treating physician is employed to cure and 22 has a greater opportunity to know and observe the patient as an 23 individual. 24 Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 25 1999). 26 for rejecting the uncontroverted opinion of a treating physician, Ryan 27 v. Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Reddick 28 v. Chater, 157 F.3d 715, 725 (9th Cir. 1998), and [e]ven if [a] Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); Therefore, the ALJ must provide clear and convincing reasons 7 1 treating doctor s opinion is contradicted by another doctor, the ALJ 2 may not reject this opinion without providing specific and legitimate 3 reasons supported by substantial evidence in the record. 4 157 F.3d at 725; Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 5 2008). Reddick, 6 7 On September 7, 2001, Dr. Vicary, who has treated plaintiff 8 continuously since May 19, 1995, diagnosed plaintiff as having major 9 depression with the following psychotic features: delusional 10 behavior; paranoid thinking; inappropriate affect; depression; 11 anhedonia or pervasive loss of interest in almost all activities; 12 appetite disturbance; sleep disturbance; emotional withdrawal or 13 isolation; psychomotor agitation or retardation; decreased energy; 14 feelings of guilt or worthlessness; difficulty concentrating or 15 thinking; easy distractibility; anxiety with vigilance and scanning; 16 and inflexible or maladaptive personality traits that cause either 17 significant impairment in social or occupational functioning or 18 subjective distress with seclusiveness or autistic thinking, 19 pathologically inappropriate suspiciousness or hostility, oddities of 20 thought, perception, speech and behavior, persistent disturbance of 21 mood or affect, and pathological dependence, passivity, or 22 aggressivity. 23 disheveled and unshaven, had long, stringy hair, his mannerisms were 24 giddy and inappropriate, and he was slow and lethargic. 25 599. 26 activities of daily living, marked difficulty maintaining social 27 functioning, and marked difficulties maintaining concentration, 28 persistence or pace. A.R. 395-400, 599-603. Dr. Vicary noted plaintiff was A.R. 395, Dr. Vicary opined plaintiff has marked restrictions in the A.R. 398, 601. 8 Dr. Vicary also opined plaintiff 1 cannot respond appropriately to work, pressure, supervision, and co- 2 workers. 3 marked limitations in his ability to understand, remember and carry 4 out detailed instructions, maintain attention and concentration for 5 extended periods, perform within a schedule, maintain regular 6 attendance and be punctual within customary tolerances, sustain an 7 ordinary routine without special supervision, complete a normal 8 workday and workweek without interruptions from psychologically-based 9 symptoms and perform at a consistent pace without an unreasonable 10 number and length of rest periods, interact appropriately with the 11 general public, get along with co-workers or peers without distracting 12 them or exhibiting behavioral extremes, and maintain socially 13 appropriate behavior and adhere to basic standards of neatness and 14 cleanliness; has moderate limitations in his ability to remember 15 locations and work-like procedures, understand, remember, and carry 16 out very short and simple instructions, work in coordination with or 17 proximity to others without being distracted, make simple work-related 18 decisions, ask simple questions or request assistance, accept 19 instructions and respond appropriately to criticism from supervisors, 20 respond appropriately to changes in the work setting, travel to 21 unfamiliar places or use public transportation, and set realistic 22 goals or make plans independently of others; and is not significantly 23 limited in his ability to be aware of normal hazards and take 24 appropriate precautions. 25 treatment with supportive counseling and psychiatric medication. 26 400, 603. A.R. 400, 603. Dr. Vicary concluded plaintiff: A.R. 401-02, 604-05. has Dr. Vicary recommended A.R. 27 28 On May 30, 2003, Dr. Vicary again diagnosed plaintiff as having 9 1 major depression, and also diagnosed plaintiff as having obsessive- 2 compulsive disorder with: 3 or pervasive loss of interest in almost all activities; appetite 4 disturbance; sleep disturbance; emotional withdrawal or isolation; 5 psychomotor agitation or retardation; decreased energy; feelings of 6 guilt or worthlessness; difficulty concentrating or thinking; easy 7 distractibility; anxiety with apprehensive expectation; recurrent 8 obsessions or compulsions which are a source of marked distress; and 9 inflexible or maladaptive personality traits that cause either 10 significant impairment in social or occupational functioning or 11 subjective distress with oddities of thought, perception, speech and 12 behavior, persistent disturbance of mood or affect, pathological 13 dependence, passivity, or aggressivity, and intense and unstable 14 interpersonal relationships and impulsive and damaging behavior. 15 436-41, 639-44. 16 disheveled and unkempt, his mannerisms were odd, and his behavioral 17 patterns were repetitive. 18 has a moderate restriction in the activities of daily living, 19 marked difficulty maintaining social functioning, continual 20 difficulties maintaining concentration, persistence or pace, and 21 continual episodes of decompensation. 22 again opined plaintiff cannot respond appropriately to work, pressure, 23 supervision, and co-workers. 24 concluded plaintiff: 25 maintain attention and concentration for extended periods, perform 26 activities within a schedule, maintain regular attendance, and be 27 punctual within customary tolerances, sustain an ordinary routine 28 without special supervision, work in coordination with or proximity to inappropriate affect; depression; anhedonia A.R. Dr. Vicary again noted plaintiff s appearance was A.R. 436, 639. Dr. Vicary opined plaintiff A.R. 440, 643. A.R. 441, 644. Dr. Vicary Dr. Vicary again has marked limitations in his ability to 10 1 others without being distracted, complete a normal workday and 2 workweek without interruptions from psychologically-based symptoms and 3 perform at a consistent pace without an unreasonable number and length 4 of rest periods, interact appropriately with the general public, get 5 along with co-workers or peers without distracting them or exhibiting 6 behavioral extremes, maintain socially appropriate behavior and adhere 7 to basic standards of neatness and cleanliness, respond appropriately 8 to changes in the work setting, be aware of normal hazards and take 9 appropriate precautions and set realistic goals or make plans 10 independently of others; has moderate limitations in his ability to 11 understand, remember and carry out detailed instructions and accept 12 instructions and respond appropriately to criticism from supervisors; 13 and is not significantly limited in his ability to remember locations 14 and work-like procedures, understand, remember, and carry out very 15 short and simple instructions, make simple work-related decisions, ask 16 simple questions or request assistance, and travel to unfamiliar 17 places or use public transportation. A.R. 442-43, 645-46. 18 19 On March 11, 2005, Dr. Vicary diagnosed plaintiff as having a 20 bipolar disorder with: inappropriate affect; depression; anhedonia or 21 pervasive loss of interest in almost all activities; appetite 22 disturbance; sleep disturbance; emotional withdrawal or isolation; 23 decreased energy; difficulty concentrating or thinking; easy 24 distractibility; anxiety with autonomic hyperactivity, motor tension, 25 and vigilance and scanning; recurrent severe panic attacks manifested 26 by a sudden, unpredictable onset of intense apprehension, fear, 27 terror, and sense of impending doom occurring on the average of once a 28 week; recurrent obsessions or compulsions which are a source of marked 11 1 distress; and inflexible or maladaptive personality traits that cause 2 either significant impairment in social or occupational functioning or 3 subjective distress with seclusiveness or autistic thinking, oddities 4 of thought, perception, speech and behavior, and persistent 5 disturbance of mood or affect. 6 plaintiff s appearance was disheveled, he had a foolish smile, and his 7 behavioral patterns were odd. 8 has a marked restriction in the activities of daily living, marked 9 difficulty maintaining social functioning, marked difficulties A.R. 798-803. A.R. 798. Dr. Vicary again noted Dr. Vicary opined plaintiff 10 maintaining concentration, persistence or pace, and moderate 11 episodes of decompensation. 12 plaintiff cannot respond appropriately to work, pressure, supervision, 13 and co-workers. 14 marked limitations in his ability to carry out detailed 15 instructions, maintain attention and concentration for extended 16 periods, perform activities within a schedule, maintain regular 17 attendance, and be punctual within customary tolerances, sustain an 18 ordinary routine without special supervision, get along with co- 19 workers or peers without distracting them or exhibiting behavioral 20 extremes, and maintain socially appropriate behavior and adhere to 21 basic standards of neatness and cleanliness; has moderate 22 limitations in his ability to understand and remember detailed 23 instructions, carry out very short and simple instructions, work in 24 coordination with or proximity to others without being distracted, 25 complete a normal workday and workweek without interruptions from 26 psychologically-based symptoms and perform at a consistent pace 27 without an unreasonable number and length of rest periods, interact 28 appropriately with the general public, accept instructions and respond A.R. 803. A.R. 802. Dr. Vicary again opined Dr. Vicary concluded plaintiff: 12 has 1 appropriately to criticism from supervisors, respond appropriately to 2 changes in the work setting, and set realistic goals or make plans 3 independently of others; and is not significantly limited in his 4 ability to remember locations and work-like procedures, understand and 5 remember very short and simple instructions, make simple work-related 6 decisions, ask simple questions or request assistance, be aware of 7 normal hazards and take appropriate precautions, and travel to 8 unfamiliar places or use public transportation. A.R. 796-97. 9 10 Finally, on July 19, 2007, Dr. Vicary again diagnosed plaintiff 11 as having a bipolar disorder with: inappropriate affect; depression; 12 anhedonia or pervasive loss of interest in almost all activities; 13 emotional withdrawal or isolation; decreased energy; inflated self- 14 esteem; anxiety with apprehensive expectation and vigilance and 15 scanning; inflexible or maladaptive personality traits that cause 16 either significant impairment in social or occupational functioning or 17 subjective distress with seclusiveness or autistic thinking, 18 pathologically inappropriate suspiciousness or hostility, oddities of 19 thought, perception, speech and behavior, persistent disturbance of 20 mood or affect, and pathological dependence, passivity, or 21 aggressivity, and intense and unstable interpersonal relationships and 22 impulsive and damaging behavior. 23 plaintiff was disheveled, had dirty long hair, his mannerisms were 24 odd, and his behavioral patterns were inappropriate. 25 Vicary opined plaintiff has a moderate restriction in the activities 26 of daily living, marked difficulty maintaining social functioning, 27 marked difficulties maintaining concentration, persistence or pace, 28 and marked episodes of decompensation. A.R. 836-40. 13 Dr. Vicary again noted A.R. 839. A.R. 836. Dr. Dr. Vicary again 1 opined plaintiff cannot respond appropriately to work, pressure, 2 supervision, and co-workers. 3 plaintiff: 4 remember detailed instructions, maintain attention and concentration 5 for extended periods, perform activities within a schedule, maintain 6 regular attendance, and be punctual within customary tolerances, work 7 in coordination with or proximity to others without being distracted, 8 complete a normal workday and workweek without interruptions from 9 psychologically-based symptoms and perform at a consistent pace A.R. 840. Dr. Vicary concluded has marked limitations in his ability to understand and 10 without an unreasonable number and length of rest periods, interact 11 appropriately with the general public, get along with co-workers or 12 peers without distracting them or exhibiting behavioral extremes, and 13 maintain socially appropriate behavior and adhere to basic standards 14 of neatness and cleanliness; has moderate limitations in his ability 15 to remember locations and work-like procedures, carry out detailed 16 instructions, sustain an ordinary routine without special supervision, 17 make simple work-related decisions, accept instructions and respond 18 appropriately to criticism from supervisors, respond appropriately to 19 changes in the work setting, be aware of normal hazards and take 20 appropriate precautions, set realistic goals or make plans 21 independently of others, and tolerate stress in an ordinary work 22 situation; and is not significantly limited in his ability to 23 understand, remember and carry out very short and simple instructions, 24 ask simple questions or request assistance, and travel to unfamiliar 25 places or use public transportation. A.R. 834-35. 26 27 28 Initially, the ALJ found that because Dr. Vicary sees plaintiff every seven to eight weeks[,] . . . Dr. Vicary s status as a treating 14 1 physician [is] questionable[.] 6 2 To the contrary, Dr. Vicary has provided medical care to plaintiff for 3 more than 12 years, and has prescribed medication to plaintiff on a 4 regular basis for plaintiff s psychiatric impairments. 5 395-402, 407-34, 436-43, 587-88, 598-605, 608-37, 639-46, 704-27, 792- 6 811, 829-41. 7 Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (physician who 8 saw claimant five times in three years for treatment was treating 9 physician); Ghokassian v. Shalala, 41 F.3d 1300, 1303 (9th Cir. 1994) A.R. 856. However, this is not so. See, e.g., Thus, Dr. Vicary is clearly a treating physician. See 10 (physician who saw claimant twice within a 14-month period and 11 prescribed medication to him was treating physician). 12 plaintiff and Dr. Vicary explained, plaintiff is seen as often as 13 realistically possible at the free clinic he attends,7 which is 14 overwhelmed [with] patients and understaffed in volunteer doctors 15 such as Dr. Vicary. 16 finding that plaintiff s condition is not as disabling as Dr. Vicary 17 has indicated[,] A.R. 856, which was based on Dr. Vicary seeing 18 plaintiff only every seven to eight weeks, is completely improper. A.R. 524, 884. Second, as both Thus, the ALJ s additional 19 6 20 21 22 23 24 25 26 27 The ALJ made his findings regarding Dr. Vicary in his April 7, 2008 decision, A.R. 856, and, in his more recent 2009 decision, simply stated that [a]s for the opinion evidence, the undersigned s April 7, 2008 decision discussed the weight accorded to Dr. Vicary s assessments. This determination has been unchallenged by the District Court; and therefore, further discussion is not required. A.R. 463. This is an odd statement since this Court had not reviewed the ALJ s 2008 decision at the time the ALJ made this statement; nevertheless, the Court will treat the ALJ s 2009 decision as incorporating by reference the 2008 discussion of Dr. Vicary s opinions. Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001); Banks v. Barnhart, 434 F. Supp. 2d 800, 805 n. 10 (C.D. Cal. 2006). 7 28 Plaintiff lives in his car and survives by panhandling. A.R. 511, 516, 522-23, 527-28. 15 1 See Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (Disability 2 benefits may not be denied because of the claimant s failure to 3 obtain treatment he cannot obtain for lack of funds. (citation 4 omitted)); Gamble v. Chater, 68 F.3d 319, 322 (9th Cir. 1995) 5 ( [M]any Americans are without the means or the opportunity to obtain 6 necessary medical care. 7 exist to give financial assistance to disabled persons because they 8 are without the ability to sustain themselves. 9 of the patent purposes of the Social Security Act to deny benefits to Social Security disability and SSI benefits It flies in the face 10 someone because he is too poor to obtain medical treatment that may 11 help him. (quoting Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 12 1984)). 13 14 The ALJ also accorded little weight to Dr. Vicary s opinions, 15 finding they were premature, speculative and conjectural and 16 [t]here are inconsistencies between the opinion[s] and clinical 17 findings and inconsistencies between the opinion[s] and treatment. 18 A.R. 856 (citations omitted). 19 the opinions were premature, speculative and conjectural and does 20 not identify any inconsistencies. 21 grossly conclusory [and] . . . will not justify [the ALJ s] rejection 22 of [Dr. Vicary s] medical opinion[s]. 23 Soc. Sec. Admin., 166 F.3d 1294, 1299 (9th Cir. 1999); Burger v. 24 Astrue, 536 F. Supp. 2d 1182, 1187 (C.D. Cal. 2008). 25 ALJ found Dr. Vicary did not provide an assessment of the claimant s 26 residual functional capacity, which is compatible with the record as a 27 whole. 28 opinions as inconsistent with other medical opinions, it is again A.R. 856. However, the ALJ does not explain how Therefore, these reasons are Regennitter v. Comm r of the Similarly, the To the extent this finding criticizes Dr. Vicary s 16 1 grossly conclusory since the ALJ does not cite any portions of the 2 record with contrary findings or any incompatible medical opinions, 3 and to the extent this finding suggests Dr. Vicary did not provide any 4 assessment of plaintiff s limitations, it is clearly incorrect, as 5 documented above. 6 7 Finally, the ALJ rejected Dr. Vicary s opinions because they 8 do[] not show objective findings other than the unsupported 9 conclusion that the claimant suffers marked limitations in various 10 areas of functioning. A.R. 856. However, 11 12 [c]ourts have recognized that a psychiatric impairment is 13 not as readily amenable to substantiation by objective 14 laboratory testing as is a medical impairment and that 15 consequently, the diagnostic techniques employed in the 16 field of psychiatry may be somewhat less tangible than those 17 in the field of medicine. 18 cannot be ascertained and verified as are most physical 19 illnesses, for the mind cannot be probed by mechanical 20 devices in order to obtain objective clinical manifestations 21 of mental illness. . . . 22 of a disability claim, clinical and laboratory data may 23 consist of the diagnoses and observations of professionals 24 trained in the field of psychopathology. 25 psychiatrist should not be rejected simply because of the 26 relative imprecision of the psychiatric methodology or the 27 absence of substantial documentation, unless there are other 28 reasons to question the diagnostic technique. In general, mental disorders [W]hen mental illness is the basis 17 The report of a 1 Sanchez v. Apfel, 85 F. Supp. 2d 986, 992 (C.D. Cal. 2000) (citations 2 omitted); Christensen v. Bowen, 633 F. Supp. 1214, 1220-21 (N.D. Cal. 3 1986). 4 for rejecting Dr. Vicary s opinions. Therefore, this also is not a specific and legitimate reason 5 6 Where the Commissioner fails to provide adequate reasons for 7 rejecting the opinion[s] of a treating . . . physician, [this Court] 8 credit[s] th[e] opinion[s] as a matter of law. 9 81 F.3d 821, 834 (9th Cir. 1996)(citations omitted); Widmark v. Lester v. Chater, 10 Barnhart, 454 F.3d 1063, 1069 (9th Cir. 2006). Here, properly 11 crediting Dr. Vicary s opinions, it is clear plaintiff has a severe 12 mental impairment, and the ALJ s decision to the contrary is not 13 supported by substantial evidence. Edlund, 253 F.3d at 1159-60. 14 15 III 16 This Court has discretion to award disability benefits to a 17 plaintiff when there is no need to remand the case for additional 18 factual findings. 19 Cir. 2002); Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). 20 [W]here the record has been developed fully and further 21 administrative proceedings would serve no useful purpose, the district 22 court should remand for an immediate award of benefits. 23 Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Moisa v. Barnhart, 367 24 F.3d 882, 887 (9th Cir. 2004). 25 when [they are] given the effect required by law, demonstrate[] that 26 [plaintiff] meets or equals Listing § 12.04, 8 the record is McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Benecke v. Here, because Dr. Vicary s opinions, 27 8 28 At the time of the most recent administrative hearing, Listing 12.04 provided, in pertinent part: 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Affective Disorders: Characterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally involves either depression or elation. [¶] The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied. [¶] A. Medically documented persistence, either continuous or intermittent, of one of the following: [¶] 1. Depressive syndrome characterized by at least four of the following: [¶] a. Anhedonia or pervasive loss of interest in almost all activities; or [¶] b. Appetite disturbance with change in weight; or [¶] c. Sleep disturbance; or [¶] d. Psychomotor agitation or retardation; or [¶] e. Decreased energy; [¶] or f. Feelings of guilt or worthlessness; or [¶] g. Difficulty concentrating or thinking; or [¶] h. Thoughts of suicide; or [¶] i. Hallucinations, delusions, or paranoid thinking . . . 3. Bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes (and currently characterized by either or both syndromes); [¶] And [¶] B. Resulting in at least two of the following: [¶] 1. Marked restriction of activities of daily living; or [¶] 2. Marked difficulties in maintaining social functioning; or [¶] 3. marked difficulties in maintaining concentration, persistence or pace; or [¶] 4. Repeated episodes of decompensation, each of extended duration. [¶] OR [¶] C. Medically documented history of a chronic affective disorder of at least 2 years duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following: [¶] 1. Repeated episodes of decompensation, each of extended duration; or [¶] 2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or [¶] 3. Current history of 1 or more years inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement. 19 1 complete, and under Step Three, both Title II9 and SSI disability 2 benefits should be awarded to plaintiff.10 3 Ramirez v. Shalala, 8 F.3d 1449, 1455 (9th Cir. 1993). Lester, 81 F.3d at 834; 4 5 ORDER 6 IT IS ORDERED that plaintiff s request for relief is granted, and 7 the Commissioner shall award both Title II and SSI disability benefits 8 to plaintiff. 9 10 DATED: August 6, 2010 11 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 C.F.R. § 404, Subpart P, App. 1, Listing 12.04. 9 Since Dr. Vicary found plaintiff disabled prior to his date last insured for Title II purposes, plaintiff is entitled to both Title II and SSI benefits. 10 Having reached this conclusion, it is not necessary to address the other arguments plaintiff raises. R&R-MDO\09-3906.mdo 8/6/10 20

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