Martha Marquez v. Commissioner of Social Security Administration, No. 2:2010cv06682 - Document 16 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, This matter will be remanded for further hearing consistent with this Memorandum Opinion. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 MARTHA MARQUEZ, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-06682-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have 21 consented that the case may be handled by the Magistrate Judge. The 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record ( AR ) before the Commissioner. The parties have filed the 25 Joint Stipulation ( JS ), and the Commissioner has filed the certified 26 AR. 27 28 Plaintiff raises the following issues: 1. Whether the Administrative Law Judge ( ALJ ) committed legal 1 error 2 Plaintiff s daughter (JS at p. 2); and 3 2. in not adequately assessing the testimony of Whether the ALJ properly considered a mental impairment. (JS 4 at p. 6.) 5 6 This Memorandum Opinion will constitute the Court s findings of 7 fact and conclusions of law. After reviewing the matter, the Court 8 concludes 9 Commissioner must be reversed and the matter remanded. that for the reasons set forth, the decision of the 10 11 I 12 THE ALJ PROPERLY CONSIDERED OBJECTIVE MEDICAL EVIDENCE 13 CONCERNING PLAINTIFF S MENTAL IMPAIRMENT, BUT IMPROPERLY REJECTED 14 THE TESTIMONY OF PLAINTIFF S DAUGHTER 15 The two issues in this case concern the ALJ s evaluation of 16 Plaintiff s mental impairment. In the first issue, Plaintiff asserts 17 that the ALJ erred in rejecting the testimony provided by Plaintiff s 18 daughter, and in the second issue, Plaintiff disputes the ALJ s 19 evaluation of the objective medical evidence. 20 the second issue first. The Court will turn to 21 There is no dispute between the parties that Plaintiff received 22 treatment for anxiety and depression. (See Plaintiff s portion of the 23 JS at 4; Defendant s portion at 7, citing AR 431-33, 438, 441-42, 521- 24 22, 524, 526, and 528.) In addition, at the first administrative 25 hearing which 26 Plaintiff provided fairly detailed testimony about her mental health 27 treatment, in particular her treatment and medications for depression. 28 (See, e.g., AR 62-66.) in this matter, occurred 2 on September 18, 2008, 1 At the request of the Department of Social Services, on June 13, 2 2008, Plaintiff received a complete psychological evaluation ( CE ) 3 from Dr. Riahinejad, a clinical psychologist. (AR 461-465.) 4 performing testing, Dr. Riahinejad diagnosed on Axis I Depressive 5 Disorder, With Anxiety. (AR 464.) 6 of managing funds on her own behalf; she is able to understand, 7 remember and carry out simple and repetitive instructions; she could 8 have moderate difficulty understanding, remembering, and carrying out 9 complex and detailed instructions; she is able to accept instructions 10 from a supervisor and relate with coworkers; she does not have any 11 difficulty with pace. (AR 464-465.) After He determined Plaintiff is capable 12 In his decision, the ALJ determined that Plaintiff s mental 13 residual functional capacity ( MRFC ) includes, in the mental realm, 14 the claimant has moderate difficulty in understanding, remembering and 15 carrying out complex and detailed instructions. 16 significant limitations. (AR 23.) 17 assessment of Plaintiff s mental functional capacity in determining 18 her MRFC. She has no other Thus, the ALJ adopted the CE s 19 As to this issue, Plaintiff s objection to the ALJ s adoption of 20 the CE s functional capacity assessment is that the CE admitted that 21 he did not perform specific testing to assess Plaintiff s depression 22 and/or anxiety. (AR 509.) 23 requested the ALJ to order specific testing concerning anxiety and 24 depression, which was denied. (AR 37, 39, 41, 114-15.) 25 Plaintiff s contention is that the ALJ failed to develop the record by 26 declining to order this specific testing. (See JS at 6-7, citing Webb 27 v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005.) 28 Plaintiff s counsel points out that he As such, In response, the Commissioner quite properly points out that the 3 1 ALJ evaluated all of the evidence in the record, not just the CE s 2 report, in determining that Plaintiff suffered from depression with 3 anxiety. 4 prerequisite for a mandate to further develop the record. (See 5 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).) 6 regard to Plaintiff s complaint that the ALJ failed to properly 7 evaluate her somatic preoccupations (JS at 7, citing AR 27), these 8 somatic complaints are largely founded on Plaintiff s credibility, 9 which the ALJ found to be severely depreciated. As such, the record is not ambiguous, which is a With Plaintiff did not 10 dispute that finding, or conclusions rendered by the psychiatric CE 11 that 12 psychiatric symptoms. 13 ALJ s asserted failure to properly evaluate somatic preoccupations. 14 Plaintiff With regard was to malingering with regard to certain of her As such, the Court can find no error in the the first issue, which concerns the ALJ s 15 evaluation of the lay testimony of Plaintiff s daughter, the Court 16 agrees that the ALJ s decision falls short, necessitating remand for 17 reconsideration of this testimony. 18 The ALJ devoted fairly substantial attention in his decision to 19 the testimony of Plaintiff s daughter, Mirabella Marquez. (See AR at 20 28-29.) 21 daughter regarding observations of Plaintiff s depression and her 22 functional limitations in daily activities and other areas, including 23 cooking, socializing, sleep difficulties, loss of energy and memory 24 problems. 25 ALJ relied on factors which the Court finds insufficient. 26 noted that Plaintiff s daughter made little, if any, mention of 27 anxiety and anxiety-related symptoms, ... (AR 28), and as a second 28 reason, that Plaintiff s daughter, despite recognizing the claimant s The ALJ accurately summarized the testimony of Plaintiff s In depreciating this testimony s credibility, however, the 4 The ALJ 1 apparently severe depression, has done little, if anything, to aid her 2 in seeking out needed psychiatric care and treatment. 3 above, there is a general dearth of evidence that the claimant has 4 been treated by mental health professionals. (AR 28.) As indicated 5 The Court must analyze the adequacy of the ALJ s rejection of 6 this lay testimony based upon the reasons set forth in the decision. 7 As the parties acknowledge, testimony from lay witnesses may be of 8 particular value, and can be only rejected based on reasons which are 9 specific and germane to the particular witness. See Regennitter v. 10 Commissioner, 166 F.3d 1294, 1298 (9th Cir. 1999), citing Smolen v. 11 Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). 12 The ALJ s determination that Plaintiff s daughter made little, 13 if any, mention of anxiety and anxiety-related symptoms is both 14 factually incorrect and analytically deficient. 15 there are numerous instances in the daughter s testimony in which 16 anxiety is referred to by name. 17 to a question, that, But you know, she would get up, she would sleep, 18 she was depressed, she would cry. 19 just a lot of different emotions going. (AR 28.) 20 hearing whether Plaintiff ever says anything that suggests she suffers 21 from anxiety, Ms. Marquez provided a quite specific answer. (AR 112.) 22 Moreover, it is possible that Ms. Marquez did not fully understand the 23 term anxiety, or how it might be distinguished from depression. 24 she was asked specifically whether she had any idea what is meant by 25 anxiety, she answered, Well, if she s doing something, it could be 26 anything, and then you know, the depression comes in or whatever. (AR 27 110.) 28 ALJ s determination that Ms. Marquez somehow ignored Plaintiff s As to the first, For example, she stated, in response She had like anxiety. There was When asked at the When While the Commissioner cites such testimony to buttress the 5 1 anxiety, the Court finds no basis for that conclusion other than 2 speculation. 3 suffers from depression with anxiety, and the terms depression and 4 anxiety may well have a substantial overlap. (See, the American 5 Medical Association Encyclopedia of Medicine, definition of anxiety at 6 122, and definition of depression, at 344-345.) 7 The Indeed, the psychological CE determined that Plaintiff ALJ s reasoning becomes even more problematic in his 8 conclusion that Plaintiff did not receive mental health care, and that 9 her daughter s failure to seek such care for her mother somehow 10 reflects upon the daughter s lack of credibility. Again, this 11 analysis falls short both factually and analytically. 12 first, the Commissioner admits that Plaintiff in fact did receive 13 treatment for anxiety and depression (see JS at 7, citing to the AR), 14 and as the Court has already noted, Plaintiff herself testified about 15 this treatment, and various medications she received. 16 view is that the daughter did not inspire her mother to obtain even 17 more treatment, this reasoning inches even further out on a limb. The 18 ALJ does not define what he means when he talks about aggressive 19 psychiatric treatment in his decision. (See AR at 28.) 20 this assessment is even more problematic from a sociological or 21 cultural point of view. 22 monitor or to encourage mental health treatment for a parent who is 23 not incompetent is a delicate and probably controversial issue. 24 Anecdotally, many people have heard examples of adult children who 25 seem powerless to prevent an older parent from driving an automobile, 26 or who fail to encourage a parent with obvious hearing impairments to 27 obtain a hearing aid. 28 occur, none of which were explored (even if they were relevant) at the As to the If the ALJ s Moreover, The responsibility of an adult child to There are a myriad of reasons why this may 6 1 hearing. 2 health treatment, and that her daughter attended one of these sessions 3 (AR 66). 4 this basis for a credibility assessment as to Ms. Marquez. 5 there is nothing else in the record, or anything articulated in the 6 decision 7 assessment, the Court must find it to be unsubstantiated, and will 8 remand the matter for further hearing to address this deficiency. 9 10 11 The fact is, however, that Plaintiff does receive mental Thus, there is simply no evidence in the record to support which would support such a depreciated credibility For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 12 13 14 Since DATED: October 3, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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