Rosa Maria Bizonia v. Michael J. Astrue, No. 2:2010cv06021 - Document 13 (C.D. Cal. 2011)

Court Description: ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS by Magistrate Judge Robert N. Block. It is hereby ordered that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings. (twdb)

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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 ROSA MARIE BIZONIA, ) ) Plaintiff, ) ) vs. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ) _____________________________ ) Case No. CV 10-6021 RNB ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS Plaintiff filed a Complaint herein on August 12, 2010, seeking review of the 19 Commissioner s denial of her application for disability insurance benefits. In 20 accordance with the Court s Case Management Order, the parties filed a Joint 21 Stipulation on April 13, 2011. Thus, this matter now is ready for decision.1 22 23 24 1 As the Court advised the parties in its Case Management Order, the 25 decision in this case is being made on the basis of the pleadings, the Administrative 26 Record ( AR ), and the Joint Stipulation ( Jt Stip ) filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has 27 determined which party is entitled to judgment under the standards set forth in 42 28 U.S.C. § 405(g). 1 1 2 DISPUTED ISSUES As reflected in the Joint Stipulation, the disputed issues that plaintiff is raising 3 as the grounds for reversal are as follows: 4 1. Whether the Administrative Law Judge ( ALJ ) erred in 5 finding at step two that plaintiff s depression does not even amount to 6 a legally severe impairment. 7 8 9 2. Whether the ALJ erred in rejecting the physical functional capacity opinions of treating family practitioner Sharma. 3. Whether the ALJ s finding that plaintiff s testimony 10 regarding her functional limitations is not credible is supported by 11 substantial evidence. 12 13 14 DISCUSSION With respect to Disputed Issue No. 3, the Court concurs with the Commissioner 15 that reversal is not warranted based on the ALJ s alleged failure to make a proper 16 adverse credibility determination. The Court finds that the reasons given by the ALJ 17 at AR 23-24 were sufficiently specific to support the ALJ s rejection of plaintiff s 18 excess pain and subjective symptom testimony. See, e.g., Burch v. Barnhart, 400 19 F.3d 676, 680-81 (9th Cir. 2005) (ALJ may properly rely on inconsistency between 20 claimant s subjective complaints and objective medical findings, and lack of 21 consistent treatment); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (ALJ 22 may properly consider inconsistencies either in claimant s testimony or between 23 claimant s testimony and claimant s conduct, claimant s daily activities, and 24 claimant s work record); Morgan v. Comm r of Soc. Sec., 169 F.3d 595, 600 (9th Cir. 25 1999) (ALJ may properly consider conflict between claimant s testimony of 26 subjective complaints and objective medical evidence in the record, and may properly 27 rely on contradictions between claimant s reported limitations and claimant s daily 28 activities); Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (ALJ may properly 2 1 rely on inconsistencies in the claimant s testimony and fact that only conservative 2 treatment had been prescribed); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) 3 (ALJ may properly rely on lack of objective evidence to support claimant s subjective 4 complaints and failure to pursue treatment); Flaten v. Secretary of Health & Human 5 Svcs., 44 F.3d 1453, 1464 (9th Cir. 1995) (ALJ may properly rely on minimal 6 medical treatment for back pain). 7 With respect to Disputed Issue No. 2, for the reasons stated by the 8 Commissioner (see Jt Stip at 28-32), the Court finds that reversal is not warranted 9 based on the ALJ s alleged error in rejecting the opinion of Dr. Sharma as to 10 plaintiff s physical functional capacity, as reflected on the Multiple Impairment 11 Questionnaire form dated June 29, 2008. (See AR 281-87.) See, e.g., Valentine v. 12 Comm r of Social Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009) (holding that 13 contradiction between a treating physician s opinion and his treatment notes 14 constitutes a specific and legitimate reason for rejecting the treating physician s 15 opinion); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (holding that 16 contradiction between treating physician s assessment and clinical notes justifies 17 rejection of assessment); Batson v. Commissioner of Social Security Administration, 18 359 F.3d 1190, 1195 (9th Cir. 2004) (noting that an ALJ may discredit treating 19 physicians opinions that are conclusory, brief, and unsupported by the record as a 20 whole, . . . or by objective medical findings ); Thomas, 278 F.3d at 957 ( The ALJ 21 need not accept the opinion of any physician, including a treating physician, if that 22 opinion is brief, conclusory, and inadequately supported by clinical findings. ); 23 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) ( When confronted with 24 conflicting medical opinions, an ALJ need not accept a treating physician s opinion 25 that is conclusory and brief and unsupported by clinical findings. ); Morgan, 169 26 F.3d at 602 (holding that a treating or examining physician s opinion based on the 27 plaintiff s own complaints may be disregarded if the plaintiff s complaints have been 28 properly discounted); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (ALJ 3 1 may legitimately accord less weight to, or reject, the opinion of a doctor based on the 2 self reporting of an unreliable claimant where that claimant s complaints have been 3 properly discounted); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (holding that 4 an ALJ may reject check-off forms that do not contain an explanation of the bases for 5 their conclusions); Johnson, 60 F.3d at 1433 (holding that contradiction between 6 doctor s treatment notes and finding of disability was valid reason to reject treating 7 physician s opinion). 8 However, with respect to Disputed Issue No. 1, the Court concurs with plaintiff 9 that the ALJ erred in finding at step two that plaintiff s depression does not even 10 amount to a legally severe impairment. A psychiatric impairment may be found not 11 severe at step two of the Commissioner s sequential evaluation process only where 12 the impairment has no more than a minimal effect on the claimant s mental ability 13 to perform basic work activities. See 20 C.F.R. § 416.921(a). Basic mental work 14 activities include understanding, carrying out, and remembering simple instructions; 15 use of judgment; responding appropriately to supervision, co-workers and usual work 16 situations; and dealing with changes in a routine work setting. See 20 C.F.R. § 17 416.921(b); Social Security Ruling2 ( SSR ) 85-28. If a finding of non-severity is not 18 clearly established by medical evidence, adjudication must continue through the 19 sequential evaluation process. See SSR 96-3p; see also Yuckert v. Bowen, 841 F.2d 20 303, 306-07 (9th Cir. 1988); McDonald v. Secretary of Heath & Human Svcs., 795 21 F.2d 1118, 1124-25 (1st Cir. 1986). 22 Here, in finding that plaintiff s depressive disorder did not significantly limit 23 her ability to perform basic work activities, and was therefore non-severe within the 24 meaning of the Regulations (see AR 21), the ALJ implicitly rejected the opinion of 25 plaintiff s treating physician that plaintiff was incapable of even tolerating low 26 27 2 Social Security Rulings are binding on ALJs. See Terry v. Sullivan, 903 28 F.2d 1273, 1275 n.1 (9th Cir. 1990). 4 1 stress (see AR 286), the opinion of the consultative examiner (Dr. Conover) based 2 on his own examination and clinical findings that plaintiff inter alia had a current 3 Global Assessment of Functioning ( GAF ) score of 603 (see AR 228), and the 4 opinion of the State agency physician (Dr. Tashjian) based on his review of plaintiff s 5 medical records (including Dr. Conover s examination report) that plaintiff inter alia 6 was moderately impaired in the ability to maintain attention and concentration for 7 extended periods and moderately impaired in the ability to respond appropriately to 8 changes in the work setting (see AR 245-46), which opinion subsequently was 9 affirmed by the reviewing State agency physician (Dr. Dalton) (see AR 264). For the 10 reasons stated by plaintiff (see Jt Stip at 10-14), the Court finds that the ALJ failed 11 to provide legally sufficient reasons, supported by the evidence of record, for 12 rejecting these opinions. 13 Moreover, the Court disagrees with the Commissioner that the ALJ s step two 14 finding that plaintiff had other severe impairments rendered moot the issue of whether 15 the ALJ erred in making his non-severity finding with respect to plaintiff s depressive 16 disorder. Dr. Conover s report evidences that he also was of the opinion that plaintiff 17 would have difficulty multi-tasking and was limited to attending to one item at a 18 time. (See AR 228). Consistent with this opinion, Dr. Tashjian opined that plaintiff 19 was moderately limited in the ability to understand and remember detailed 20 instructions and moderately limited in the ability to carry out detailed instructions. 21 While these other opinions to the effect that plaintiff s mental impairment limited her 22 23 24 25 26 27 28 3 A GAF score of 60 is indicative of [m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). By way of contrast, the GAF range for absent or minimal symptoms is 81-90, the GAF range for no more than slight impairment in social, occupational, or school functioning is 71-80, and the range for mild symptoms is 61-70. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed.). 5 1 to understanding, carrying out, and remembering simple instructions were not 2 inconsistent with the ALJ s non-severity finding, they were inconsistent with the 3 ALJ s failure to include any mental limitations in his Residual Functional Capacity 4 ( RFC ) assessment. Yet nowhere in the section of his decision explaining the basis 5 for his RFC assessment did the ALJ even purport to provide any rationale for his 6 failure to include any mental limitations in that assessment. 7 8 9 CONCLUSION AND ORDER As to the issue of the appropriate relief, the law is well established that the 10 decision whether to remand for further proceedings or simply to award benefits is 11 within the discretion of the Court. See, e.g., Salvador v. Sullivan, 917 F.2d 13, 15 12 (9th Cir. 1990); McAllister, 888 F.2d at 603; Lewin v. Schweiker, 654 F.2d 631, 635 13 (9th Cir. 1981). Remand is warranted where additional administrative proceedings 14 could remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 15 (9th Cir. 1984); Lewin, 654 F.2d at 635. Remand for the payment of benefits is 16 appropriate where no useful purpose would be served by further administrative 17 proceedings, Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980); where the record 18 has been fully developed, Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); 19 or where remand would unnecessarily delay the receipt of benefits, Bilby v. 20 Schweiker, 762 F.2d 716, 719 (9th Cir. 1985). 21 The Court has concluded that this is not an instance where no useful purpose 22 would be served by further administrative proceedings; rather, additional 23 administrative proceedings still could remedy the defects in the ALJ s decision. 24 // 25 // 26 // 27 // 28 // 6 1 Accordingly, pursuant to sentence four of 42 U.S.C. § 405(g), IT IS HEREBY 2 ORDERED that Judgment be entered reversing the decision of the Commissioner of 3 Social Security and remanding this matter for further administrative proceedings.4 4 5 DATED: May 3, 2011 6 7 ROBERT N. BLOCK UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 It is not the Court s intent to limit the scope of the remand. 7

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