Travis William Suiter v. Michael J. Astrue, No. 2:2010cv05430 - Document 25 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; IT IS ORDERED that Judgment be entered REVERSING the decision of the Commissioner and REMANDING this action for further proceedings consistent with this decision. See order for further details. (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TRAVIS WILLIAM SUITER, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 10-05430 SS MEMORANDUM DECISION AND ORDER 18 I. 19 INTRODUCTION 20 21 Travis William Suiter ( Plaintiff ) seeks review of the final 22 decision of the Commissioner of the Social Security Administration (the 23 Commissioner or the Agency ) to deny his application for Supplemental 24 Security Income ( SSI ) Benefits, and requests this Court remand this 25 matter for further review. 26 // 27 28 1 The parties consented, pursuant to 28 U.S.C. § 636(c), to the 2 jurisdiction of the undersigned United States Magistrate Judge. For the 3 reasons stated below, the decision of the Commissioner is REVERSED and 4 the case is REMANDED for further proceedings consistent with this 5 decision. 6 7 II. 8 PROCEDURAL HISTORY 9 10 Plaintiff applied for Title XVI SSI Benefits and Title II Social 11 Security Disability Insurance ( SSDI ) Benefits on April 10, 2007, 12 claiming disability since December 31, 2003. 13 ( AR ) 107-12, 113-14). 14 August 15 reconsideration on September 24, 2007. 16 application again on December 10, 2007. (AR 62-63, 70-79). Thereafter, 17 Plaintiff filed a Request For Hearing By Administrative Law Judge on 18 January 29, 2008. 31, 2007. (Administrative Record The Agency initially denied both claims on (AR 60-61, 64-68). (AR 69). Plaintiff requested The Agency denied his (AR 80-81). 19 20 The Agency scheduled a hearing for October 21, 2008, wherein 21 Plaintiff testified before an Administrative Law Judge ( ALJ ) in Los 22 Angeles, California. 23 continued to January 13, 2009 to give Plaintiff time to provide the 24 Agency with more records of his most recent medical treatment. 25 40, 41-59). 26 before the ALJ. (AR 41-59). Sandra Schneider, a vocational expert also (AR 22-40, 86-95). (AR 22- At the January 13, 2009 hearing Plaintiff again testified 27 28 The hearing was ultimately 2 1 testified at this hearing. 2 13, 2009 hearings, Plaintiff was represented by the Law Offices of Bill 3 LaTour. 4 application for benefits on September 8, 2009. 5 12, 2009, Plaintiff requested review of the ALJ s decision. 6 On May 18, 2010, the Agency denied Plaintiff s request, (AR 1-3), and 7 Plaintiff commenced this action on July 22, 2010. (AR 22-40, (Id.). 41-59, At the October 21, 2008 and January 82-83). The ALJ denied Plaintiff s (AR 9-21). On November (AR 6-8). 8 9 III. 10 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 11 12 To qualify for disability benefits, a claimant must demonstrate a 13 medically determinable physical or mental impairment that prevents him 14 from engaging in substantial gainful activity1 and that is expected to 15 result in death or to last for a continuous period of at least twelve 16 months. 17 U.S.C. § 423(d)(1)(A)). 18 incapable of performing the work he previously performed and incapable 19 of performing any other substantial gainful employment that exists in 20 the national economy. 21 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 22 23 24 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 25 1 27 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. See 20 C.F.R. §§ 404.1510, 416.910. 28 3 26 1 (1) Is the claimant presently engaged in substantial gainful 2 activity? If so, the claimant is found not disabled. If 3 not, proceed to step two. 4 (2) Is the claimant s impairment 5 claimant is found not disabled. 6 severe? If not, the three. 7 (3) If so, proceed to step Does the claimant s impairment meet or equal one of the 8 specific impairments described in 20 C.F.R. Part 404, 9 Subpart P, Appendix 1? 10 disabled. 11 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? 12 so, the claimant is found not disabled. 13 If to step five. 14 (5) If not, proceed Is the claimant able to do any other work? If not, the 15 claimant is found disabled. If so, the claimant is found 16 not disabled. 17 18 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 19 949, 20 404.1520(b)-(g)(1) & 416.920(b)-(g)(1). 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. §§ 21 22 The claimant has the burden of proof at steps one through four, and Bustamante, 262 23 the Commissioner has the burden of proof at step five. 24 F.3d at 953-54. Additionally, the ALJ has an affirmative duty to assist 25 the claimant in developing the record at every step of the inquiry. 26 at 954. If, at step four, the claimant meets his burden of establishing 27 28 Id. 4 1 an inability to perform past work, the Commissioner must show that the 2 claimant can perform some other work that exists in significant 3 numbers in the national economy, taking into account the claimant s 4 residual 5 experience. 6 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 7 by the testimony of a vocational expert ( VE ) or by reference to the 8 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart 9 P, Appendix 2 (commonly known as the Grids ). functional capacity2 ( RFC ), age, education, and work Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; The Commissioner may do so Osenbrock v. Apfel, 240 10 F.3d 1157, 1162 (9th Cir. 2001). 11 (strength-related) 12 inapplicable and the ALJ must take the testimony of a vocational expert. 13 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart v. 14 Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)). and When a claimant has both exertional non-exertional limitations, the Grids are 15 16 IV. 17 STANDARD OF REVIEW 18 19 Under 42 U.S.C. § 405(g), a district court may review the 20 Commissioner s decision to deny benefits. 21 Commissioner s decision when the ALJ s findings are based on legal error 22 or are not supported by substantial evidence in the record as a whole. 23 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing The court may set aside the 24 25 2 27 Residual functional capacity is the most [one] can still do despite [his] limitations and represents an assessment based upon all of the relevant evidence. 20 C.F.R. §§ 404.1545(a), 416.945(a). 28 5 26 1 Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th 2 Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 3 4 Substantial evidence is more than a scintilla, but less than a 5 preponderance. 6 112 F.3d 1064, 1066 (9th Cir. 1997)). 7 reasonable person might accept as adequate to support a conclusion. Id. 8 (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). 9 determine whether substantial evidence supports a finding, the court 10 must consider the record as a whole, weighing both evidence that 11 supports 12 conclusion. 13 F.3d 953, 956 (9th Cir. 1993)). 14 either affirming or reversing that conclusion, the court may not 15 substitute its judgment for that of the Commissioner. Reddick, 157 F.3d 16 at 720-21 (citing Flaten v. Sec y, 44 F.3d 1453, 1457 (9th Cir. 1995)). and Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, evidence that It is relevant evidence which a detracts from the To [Commissioner s] Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 If the evidence can reasonably support 17 18 V. 19 DISCUSSION 20 21 Plaintiff contends the ALJ erred in three respects in his decision 22 to deny benefits. 23 Plaintiff argues the ALJ improperly rejected the opinion of a treating 24 physician. 25 assessment of Plaintiff s credibility. 26 Plaintiff (Plaintiff s Memorandum at 2, 7, 10). (Id. at 2-7). argues the Second, Plaintiff argues the ALJ erred in his ALJ failed 27 28 First, 6 to (Id. consider at 7-10). all of Finally, Plaintiff s 1 impairments when determining Plaintiff s Residual Functional Capacity 2 ( RFC ). (Id. at 10-14). 3 4 The Court agrees that remand is necessary. The Court also finds 5 the 6 Plaintiff s depression was non-severe at step-two of the evaluation 7 process. 8 ALJ s decision should be reversed and this action remanded for further 9 proceedings. ALJ erred in one additional respect, i.e., by finding that For the reasons discussed below, the Court finds that the 10 11 A. 12 The ALJ Improperly Rejected The Medical Opinions Of The Treating Physician 13 14 Plaintiff contends that the ALJ did not give proper weight to the 15 opinion of Plaintiff s treating physician, Dr. Mehri McKellar ( Dr. 16 McKellar ). 17 argues that the ALJ ignored the portions of Dr. McKellar s treatment 18 records that document the diagnosis and treatment of Plaintiff s chronic 19 headaches, and failed to give specific and legitimate reasons for 20 doing so. (Plaintiff s Memorandum at 2-7). (Id.). Specifically, Plaintiff The Court agrees. 21 22 Where the treating doctor s opinion is not contradicted by another 23 doctor, it may be rejected only for clear and convincing reasons. 24 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended). 25 if the treating physician s opinion is contradicted by another doctor, 26 the ALJ may not reject this opinion 27 28 7 without providing Even specific, 1 legitimate reasons, 2 record. 3 special weight because the treating physician is hired to cure and has 4 a better opportunity to know and observe the claimant as an individual. 5 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Id. supported by substantial evidence in the The opinions of treating physicians are entitled to 6 7 Here, the ALJ improperly disregarded Dr. McKellar s opinion 8 regarding the severity of Plaintiff s headaches. 9 2007 HIV Questionnaire used to evaluate Plaintiff s ability to function 10 with respect to his HIV status, Dr. McKellar opined that Plaintiff s 11 chronic 12 explained why Plaintiff appeared chronically ill and visibly fatigued. 13 (AR 14 Plaintiff s headaches as ongoing and as his biggest problem. 15 156-57). Additionally, Dr. McKellar observed Plaintiff s depression and 16 anxiety 17 impairment. 18 Plaintiff suffered from chronic headaches, and ordered lab work to be 19 performed. 20 opinion regarding Plaintiff s headaches in the form of a letter, in 21 which she asked the ALJ to excuse Plaintiff from attendance at a court 22 date in January 2008 due to his chronic headaches and fatigue. 23 346). 24 Plaintiff s headaches and depression, as the record shows that Plaintiff 25 was consistently prescribed Midrin and Ibuprofen for headaches, (AR 294, 26 296, 301, 307, 312), and Wellbutrin for depression. (AR 299, 307). headaches 156). In were and this depression same indications (AR 157). (AR 306). contributing Questionnaire, that Plaintiff Dr. factors McKellar suffered from that described a (AR mental On November 21, 2007, Dr. McKellar found that On April 17, 2008, Dr. McKellar again offered her (AR Moreover, the record supports Dr. McKellar s opinions regarding 27 28 were In the November 7, 8 1 Instead of addressing Dr. McKellar s opinions regarding Plaintiff s 2 headaches and depression, the ALJ focused exclusively on Dr. McKellar s 3 functional capacity assessment. (AR 19). The ALJ failed to provide any 4 reasons for omitting Dr. McKellar s assessments regarding Plaintiff s 5 headaches and depression. 6 doctor s opinions is improper in the absence of clear and convincing 7 reasons for doing so. 8 remand, the ALJ shall consider and address Dr. McKellar s opinions 9 regarding Plaintiff s headaches and depression when conducting the Such selective treatment of the treating See Lester 81 F.3d at 830. 10 disability 11 Accordingly, on Plaintiff s mental impairments and pain. analysis, as well as any other evidence relevant to 12 13 14 B. The ALJ Failed To Provide Clear And Convincing Reasons For Rejecting Plaintiff s Credibility 15 16 The Plaintiff argues that the ALJ failed to provide clear and 17 convincing reasons for rejecting Plaintiff s credibility. 18 Memorandum at 7-10). (Plaintiff s This Court agrees. 19 20 Whenever an ALJ s disbelief of a claimant s testimony is a critical 21 factor in a decision to deny benefits, as it is here, the ALJ must make 22 explicit credibility findings. 23 (9th Cir. 1990); see Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 24 1990) (implicit finding that claimant was not credible is insufficient). 25 Unless there is affirmative evidence showing that the claimant is 26 malingering, the ALJ s reasons for rejecting the claimant s testimony Rashad v. Sullivan, 903 F.2d 1229, 1231 27 28 9 1 must be clear and convincing. Lester, 81 F.3d at 834. As long as the 2 plaintiff offers evidence of a medical impairment that could reasonably 3 be expected to produce pain, the ALJ may not require the degree of pain 4 to be corroborated by objective medical evidence. Bunnell v. Sullivan, 5 947 F.2d 341, 346-47 (9th Cir. 1991) (en banc); Smolen, 80 F.3d at 1282. 6 7 The ALJ can, however, reject plaintiff s testimony regarding the 8 severity of her symptoms if he points to clear and convincing reasons 9 for doing so. See Smolen, 80 F.3d at 1283-84. To determine whether 10 plaintiff s 11 credible, the ALJ may consider, among other things, the following 12 evidence: (1) ordinary techniques of credibility evaluation, such as the 13 claimant s 14 concerning the symptoms, and other testimony by the claimant that 15 appears less than candid; (2) unexplained or inadequately explained 16 failure to seek treatment or to follow a prescribed course of treatment; 17 and (3) the claimant s daily activities. testimony reputation regarding for the lying, severity prior of his inconsistent symptoms is statements Id. at 1284. 18 19 In making his credibility determination, the ALJ relied solely on 20 selective portions of the evidence without considering the portions of 21 the record that supported Plaintiff s testimony. 22 See Valentine v. Comm r of the Soc. Sec. Admin., 574 F.3d 685, 693 (9th 23 Cir. 2009) ( The ALJ must specifically identify what testimony is 24 credible 25 complaints. ). 26 treatment for the illnesses relevant to his disability claim. and what testimony the claimant s The record indicates that Plaintiff consistently sought 27 28 undermines This was erroneous. 10 (See AR 1 241-51, 293, 296, 298, 301-02, 304, 306-07, 309, 313, 364, 408-09, 411). 2 Plaintiff visited the Hollywood Healthcare Center seven times for HIV- 3 related issues and other ailments between June 13, 2006 and December 20, 4 2007. 5 reported that he suffered from headaches and depression. 6 298, 304). 7 for 8 depression. (AR 304-13). 9 Plaintiff s subjective 10 impairment. (AR 241-51, 293-313). his At several of these visits, Plaintiff (AR 244, 293, As a result, Plaintiff was prescribed Midrin and Ibuprofen headaches, and Amitryptyline and Wellbutrin for his Thus, Plaintiff s treatment records support complaints of headache pain and mental 11 12 The ALJ specifically discounted Plaintiff s credibility because the 13 intensity, persistence and limiting effects of Plaintiff s symptoms 14 were not supported by the objective medical evidence. 15 ALJ s decision lacks specificity, however, and it is unclear why the ALJ 16 found that the medical evidence did not support the degree of pain and 17 limitation that Plaintiff claimed. 18 considerable medical treatment of Plaintiff, including treatment with 19 prescription medications. (AR 17). The The record certainly reflects 20 21 Defendant argues that the ALJ s credibility assessment was proper 22 for two additional reasons. 23 Defendant argues the credibility assessment was proper because the ALJ 24 based 25 treatment. (Id.). 26 Internal Medicine Evaluation of a consultative examiner, dated June 27, his assessment on (Defendant s Memorandum at 5-6). Plaintiff s to follow prescribed The ALJ based this assessment off of the Independent 27 28 failure First, 11 1 2007, which showed that Plaintiff was not taking medication for his HIV, 2 and was only taking Wellbutrin. 3 failed to take into account that the same evaluation noted that his 4 other medications were stopped secondary to side effects. (AR 18, 262-67). However, the ALJ (AR 262). 5 6 Second, Defendant argues the ALJ s assessment was proper because 7 Plaintiff often failed to report any symptoms to healthcare providers. 8 (Defendant s Memorandum at 6). 9 office visit notes documenting Plaintiff s medical treatment showed that 10 Plaintiff 11 contrasted with his claim of ongoing, disabling symptoms. 12 Defendant cites Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006), 13 in which the court found that the claimant s failure to report symptoms 14 during the relevant period was a clear and convincing reason to reject 15 his subjective complaints. 16 from this case, as the plaintiff in Greger failed to report any 17 symptoms consistent with his alleged impairment, did not participate in 18 any treatment for his alleged impairments, and admitted to participating 19 in physical activities inconsistent with his alleged disabilities. 20 Greger, 464 F.3d at 972 (emphasis added). In contrast, the record in 21 this symptoms 22 impairments on many occasions, received treatment consistent with those 23 alleged impairments, and did not participate in any physical activities 24 inconsistent with his alleged disabilities. 25 309, 389-412). case often did reflects not Defendant points out that many of the specify (Id.). Plaintiff any complaint, which (Id. at 6). However, Greger is distinguishable reported 26 27 28 particular 12 of his alleged (AR 244, 248, 293, 304, 1 As there was no affirmative evidence showing that [Plaintiff] was 2 malingering, and because the ALJ failed to offer a clear and convincing 3 reasons for rejecting Plaintiff s testimony, the ALJ s credibility 4 assessment was improper. 5 omitted). 6 the ALJ should specifically identify what evidence undermines the 7 credibility of Plaintiff s specific complaints and how this evidence is 8 supported by the record. See Valentine, 574 F.3d at 693 (citations On remand, if the ALJ again rejects Plaintiff s credibility, 9 10 11 C. The ALJ Failed To Consider The Combined Effects Of Plaintiff s Impairments When Determining Plaintiff s RFC 12 13 Plaintiff argues that the ALJ did not adequately consider all of 14 Plaintiff s impairments when determining Plaintiff s RFC. 15 Memorandum at 10-14). 16 failed to incorporate the effect of Plaintiff s chronic headaches and 17 pain into his RFC assessment. 18 Additionally, the ALJ failed to adequately incorporate the findings of 19 Dr. Steven J. Brawer s Psychological Evaluation, dated November 7, 2007, 20 into his RFC assessment. (Plaintiff s Specifically, the Plaintiff asserts the ALJ (Id. at 11-12). The Court agrees. 21 22 A claimant s residual functional capacity is what he can still do 23 despite his physical, mental, nonexertional, and other limitations. 24 Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989) (citing 20 25 C.F.R. § 404.1545). 26 claimant s impairments and any related symptoms that may cause physical An RFC assessment requires the ALJ to consider a 27 28 13 1 and mental limitations that affect what [he] can do in a work setting. 2 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In determining a claimant s 3 RFC, 4 functional capacity assessments made by consultative examiners, State 5 Agency physicians and medical experts. 6 416.945(a)(3). 7 physician s RFC assessment is not contradicted by another physician, the 8 ALJ must provide clear and convincing reasons for rejecting that 9 opinion. the ALJ considers all relevant evidence, including residual 20 C.F.R. §§ 404.1545(a)(3), See also, 20 C.F.R. §§ 404.1513(c), 416.913(c). If a Lester, 81 F.3d at 830 (as amended) ( [T]he Commissioner must 10 provide clear and convincing reasons for rejecting the uncontradicted 11 opinion of an examining physician. ). 12 13 The ALJ is required to consider all of the limitations imposed by 14 the claimant s impairments, even those that are not severe. . . . Even 15 though a non-severe impairment[] standing alone may not significantly 16 limit an individual s ability to do basic work activities, it may - when 17 considered with limitations or restrictions due to other impairments - 18 be critical to the outcome of a claim. 19 Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Social 20 Security 21 (citations omitted). Ruling 96-8p Carmickle v. Comm r of the Soc. (1996))(internal quotation marks omitted) 22 23 Here, the functional limitations contained within the ALJ s RFC do 24 not adequately address all of Plaintiff s limitations. 25 only contains restrictions on Plaintiff s ability to twist, stoop, 26 crouch, climb and be exposed to humidity or respiratory irritants. (AR 27 28 14 The ALJ s RFC 1 16). Although these limitations are consistent with those impairments 2 the ALJ determined to be severe, these limitations do not adequately 3 address the collective impact of Plaintiff s other limitations. 4 particular, the RFC does not account for Plaintiff s symptoms of 5 headaches, fatigue, diarrhea, incontinence or depression. (AR 16). 6 does the ALJ s RFC analysis reference pain, which is a central issue in 7 this case. 8 [Plaintiff s] impairments, even those that are not severe. 9 533 F.3d at 1164. In Nor The ALJ must consider all the limitations imposed by the Carmickle, 10 11 Furthermore, the ALJ improperly rejected the opinion of Dr. Brawer, 12 an examining psychologist, who opined, given [Plaintiff s] dysphoria 13 and somatic complaints, [Plaintiff] may have difficulty sustaining 14 motivation and stamina and that, [Plaintiff] may have mild limitations 15 in sustaining cooperative relationships with coworkers and supervisors 16 due 17 isolation. 18 purported reason for disregarding Dr. Brawer s opinion is not supported 19 by the record. 20 Brawer s opinion into the RFC was error. to his dysphoria, (AR 284). irritability and preference for social As discussed in the next section, the ALJ s Accordingly, the ALJ s failure to incorporate Dr. 21 22 Defendant argues that the ALJ properly rejected Plaintiff s 23 subjective complaints because the Plaintiff failed to explain how 24 headaches treated with Ibuprofen, Mitrin, and chiropractics would have 25 prevented him from doing a wide range of sedentary work. 26 Memorandum at 8). Specifically, 27 28 15 Defendant argues (Defendant s Plaintiff s 1 impairments were effectively controlled by medication, and were, thus, 2 rightly excluded from the ALJ s RFC assessment. 3 this proposition, Defendant cites Warre v. Comm r of the Soc. Sec. 4 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) and Odle v. Heckler, 707 5 F.2d 439, 440 (9th Cir. 1983). 6 distinguishable from the present case because both decisions were based 7 on the premise that the plaintiffs in those cases had effectively 8 controlled their impairments with medication. 9 in the present case (Id.). demonstrates (Id.). In support of However, Warre and Odle are In contrast, the record Plaintiff s headaches were not 10 effectively controlled by medication. 11 seek chiropractic and other treatment to supplement the Ibuprofen and 12 Midrin prescribed to treat his chronic headaches. 13 Accordingly, the ALJ improperly disregarded Plaintiff s documented 14 limitations and failed to consider the collective impact of those 15 limitations on Plaintiff s RFC. Rather, Plaintiff was forced to (AR 390-412). 16 17 18 D. The ALJ Erred By Finding That Plaintiff s Depression Was NonSevere At Step-Two 19 20 In addition to the grounds alleged by the Plaintiff, the Court also 21 finds the ALJ erroneously found Plaintiff s depression non-severe. As 22 discussed previously, the ALJ dismissed Dr. Brawer s opinion that 23 Plaintiff suffered from depression because the ALJ believed Dr. Brawer s 24 opinion 25 depressive symptoms and display of sad/somber affect. 26 ALJ reasoned that Plaintiff s depression was not severe because the was based primarily on Plaintiff s 27 28 16 subjective reports (AR 15). of The 1 problems with Plaintiff s credibility undermined Dr. Brawer s diagnosis 2 of depression. 3 record concerning Plaintiff s depression. 4 Plaintiff reported symptoms of depression as early as June 13, 2006, (AR 5 241), 6 received prescriptions for two antidepressants, Amitryptyline, and 7 Wellbutrin. 8 severe impairment test at step two. received (Id.). This was an improper assessment of the entire on-going treatment (AR 304, 310). for The record reflects that depression, and eventually This evidence more than satisfies the 9 10 By its own terms, the evaluation at step two is a de minimis test 11 intended to weed out the most minor of impairments. 12 Yuckert, 482 U.S. 137, 153-154, 107 S. Ct. 2287, 96 L. Ed. 2d 119 13 (1987); Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001)(stating 14 that the step two inquiry is a de minimis screening device to dispose of 15 groundless claims) (quoting Smolen, 80 F.3d at 1290). 16 not severe only if the evidence establishes a slight abnormality that 17 has no more than a minimal effect on an individuals ability to work. 18 Smolen, 19 citations omitted). 80 F.3d at 1290 (internal quotations See Bowen v. An impairment is omitted) (internal 20 21 The ALJ here applied more than a de minimis test when he determined 22 that Plaintiff s depression was not severe. 23 findings in the present case indicate that Plaintiff suffered from a 24 severe 25 ( Medical opinions . . . that reflect judgments about the nature and 26 severity of [a plaintiff s] impairment(s), including symptoms, diagnosis mental health impairment. 27 28 17 See 20 The objective medical C.F.R. § 416.927(a)(2) 1 and prognosis, are evidence that a plaintiff may submit in support of 2 his 3 Secretary s regulations for evaluating mental impairments. Accordingly, 4 the ALJ must re-do the analysis at step-two and properly apply the 5 agency s own regulations for evaluation of a severe mental impairment. disability claim). The ALJ, however, failed to follow the 6 7 VI. 8 CONCLUSION 9 10 Consistent with the foregoing, IT IS ORDERED that Judgment be 11 entered REVERSING the decision of the Commissioner and REMANDING this 12 action for further proceedings consistent with this decision. The Clerk 13 of the Court shall serve copies of this Order and the Judgment on 14 counsel for both parties. 15 16 DATED: July 28, 2011 17 18 19 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 18

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