Christine McCarthy v. Michael J. Astrue, No. 2:2010cv07773 - Document 17 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, This matter will be remanded for a new 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 CHRISTINE McCARTHY, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-07773-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 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) erred in 1 rejecting the opinion of Plaintiff s treating psychiatrist; 2 and 3 2. Whether the ALJ failed to provide clear and convincing 4 5 reasons to reject Plaintiff s subjective complaints. (JS at 3.) 6 7 This Memorandum Opinion will constitute the Court s findings of 8 fact and conclusions of law. After reviewing the matter, the Court 9 concludes 10 that for the reasons set forth, the decision of the Commissioner must be reversed and the matter remanded. 11 12 I 13 THE ALJ ERRED AT STEP TWO IN FINDING THAT PLAINTIFF 14 DOES NOT SUFFER FROM A SEVERE MENTAL IMPAIRMENT 15 In her first issue, Plaintiff asserts that the ALJ erred in 16 rejecting the opinions of her treating psychiatrist, Dr. Alexanian, as 17 to 18 accepted the opinion of a one-time consultative examiner and a non- 19 examining State Agency physician. 20 her mental functional restrictions, and instead erroneously At Step Two of the sequential evaluation process (see below), the 21 ALJ found that 22 impairment of mental depression, that impairment does not provide any 23 limitations 24 functioning, or ability to maintain concentration, persistence and 25 pace. 26 duration. on although the Plaintiff claimant s has daily a medically living determinable activities, social It has not caused any episodes of decompensation of extended This is not a severe impairment. (AR 22.) 27 The ALJ acknowledged that Plaintiff had been treated by Dr. 28 Alexanian of MCLA Psychiatric Medical Group from July 2008 into 2009, 2 1 but rejected Dr. Alexanian s conclusions as inconsistent with both his 2 treatment notes and with Plaintiff s own function report, in which she 3 described engaging in a wide range of activities of daily living 4 ( ADL ). (AR 22-23.) 5 results of a complete psychiatric examination ( CE ) performed in 6 January 2009 by Dr. Bagner (AR 356-359), and the supporting opinion of 7 a non-examining State Agency physician, Dr. Brooks (AR 23-24), who 8 found that Plaintiff s ADLs were not restricted, and that she had no 9 difficulties in maintaining social functioning, or in the areas of 10 The ALJ instead relied upon and accepted the concentration, persistence and pace. 11 12 A. Applicable Law. 13 The Ninth Circuit has clearly articulated that an impairment or 14 combination of impairments may be found to be not severe if the 15 evidence establishes a slight abnormality that has no more than a 16 minimal effect on an individual s ability to work. 17 80 F.3d 1273, 1290 (9th Cir. 1996). 18 stated in Social Security Ruling ( SSR ) 85-28 (1985) that [I]f an 19 adjudicator is unable to determine clearly the effect of an impairment 20 or combination of impairments on the individual s ability to do basic 21 work activities, the sequential evaluation should not end with the 22 non-severe evaluation step. 23 two is a de minimis screening device [used] to dispose of groundless 24 claims, Smolen, 80 F.3d at 1290. An ALJ may only find that a 25 claimant impairment 26 impairments when the conclusion to that effect is clearly established 27 by 28 statements about pain or other symptoms do not alone establish lacks medical a medically evidence. SSR Smolen v. Chater, Moreover, the Commissioner has Thus, it is well understood that step severe 85-28. 3 Further, or combination while a of claimant s 1 disability, such evidence, in combination with medical signs and 2 laboratory findings demonstrating a medical impairment, is clearly 3 relevant. See 20 C.F.R. §416.929(a)(2010). 4 5 B. Analysis. 6 On August 20, 2008, Plaintiff completed, in detail, a Function 7 Report in which she identified her ADLs. (AR 169-176.) She described 8 in great detail how she takes care of herself and her cat, and is able 9 to prepare her own meals. If she is hungry, she will prepare several 10 courses, including appetizers, salad, main meal and dessert. 11 prepares breakfast and lunch every day or sometimes just breakfast and 12 dinner. 13 impressive as that might sound, she then indicates that she lives in 14 an apartment without a kitchen. (Id.) 15 able to prepare three and four course meals without a kitchen. 16 Similarly, some disturbing entries creep into her report. 17 indicates, for example, that, I can get angry often and yell at 18 people for no apparent reason. (AR 174.) 19 handle stress very well, gets very upset, and often cries. (AR 175.) 20 She admits to being delusional regarding her apartment, stating that 21 she believes that there are people hiding in the walls and her closet 22 or under the floor, like a trap door with secret passages. (Id.) This takes her a half hour to an hour. (AR 171.) She As One questions how she might be She She says that she does not 23 These signposts of mental illness would not appear to have been 24 erected by Plaintiff for the purpose of getting Social Security 25 benefits. 26 period of time, in July 2008 diagnosed that she was suffering from 27 Major Depressive Disorder, Severe, with psychotic features and Post 28 Traumatic Stress Disorder. (AR 299.) Dr. Alexanian, who treated Plaintiff for quite a lengthy 4 In November 2008, Dr. Alexanian 1 completed a mental residual functional capacity ( RFC ) assessment of 2 Plaintiff, in which he made the same diagnosis. 3 In a Mental Disorder Questionnaire Form (AR 323-327), Dr. 4 Alexanian noted that Plaintiff was very depressed and tearful; that 5 she had anxiety, restlessness and difficulty in relaxing, and, that 6 she had poor memory and difficulty concentrating. 7 noted that she had auditory delusions, and believed that people were 8 monitoring the doctor and tapping his phone. (AR 325.) 9 unable to use public transportation because of her fears, and she was 10 11 Dr. Alexanian also Plaintiff was socially isolated with no friends or social life. Dr. Alexanian assessed a General Assessment of Functioning 12 ( GAF ) score in the range of 40 to 45, on a consistent basis. As 13 this Court has noted in other decisions, the GAF score is intended to 14 reflect a person s overall level of functioning at or about the time 15 of the examination, not for a period of at least 12 consecutive 16 months, which is required for a finding of impairment or disability. 17 (See 20 C.F.R. §§ 416.905, 416.920(c) (2006).) 18 intended to be used for clinical diagnosis and treatment and therefore 19 do not directly correlate to the severity assessment set forth in 20 Social Security regulations. 21 all, and certainly did not rebut Dr. Alexanian s conclusion that 22 Plaintiff s GAF scores are consistent with his diagnostic impressions. 23 The Court s primary task here is to determine whether the ALJ was 24 justified in rejecting Dr. Alexanian s opinion because it either was 25 not supported by objective evidence, or was inconsistent with his 26 treatment notes. 27 Court finds that Dr. Alexanian s conclusions are supported by his 28 treatment notes, and they certainly appear to indicate a level of GAF scores are Here, the ALJ failed to discuss them at On that score, the ALJ s decision falls short. 5 The 1 impairment which qualifies as severe at Step Two of the sequential 2 evaluation process. 3 The Court need not devote substantial attention to the 4 consultative examination of Dr. Bagner. The issue here is not, 5 strictly speaking, whether Dr. Bagner s conclusions should be accepted 6 over those of Dr. Alexanian, because the Court has already determined 7 that Dr. Alexanian s opinion was rejected without sufficient basis in 8 the decision. 9 Plaintiff would have mild to moderate limitations handling stress. In 10 and of itself, this would appear to support a finding of severe mental 11 impairment, since the regulations provide that where an impairment 12 only causes mild limitations in defined areas of Plaintiff s mental 13 functioning, the mental impairment will not be considered severe. (See 14 20 C.F.R. §§ 404.1520a(d)(1) and 416.920a(d)(1).) 15 that a claimant has a moderate limitation in a relevant area of mental 16 functioning 17 impairment 18 corroborate the conclusions of the treating psychiatrist more than 19 contradict them. But the Court does note that Dr. Bagner reported that may not exists, mandate in this a conclusion case such that evidence While a finding a severe would mental seem to 20 The Court need not devote substantial attention to Plaintiff s 21 second issue, which concerns whether or not the ALJ erred in rejecting 22 her 23 contradictions between Plaintiff s testimony at the hearing, and self- 24 reporting in her Function Report. 25 its discussion of the first issue, there appear to be substantial 26 questions about the accuracy of Plaintiff s self-reporting. 27 questions 28 corroborated by her treating psychiatrist), such as indications that subjective complaints. concern certain The ALJ relied upon asserted As the Court has already noted in delusional 6 statements (which These were 1 she prepares complicated meals several times a day in an apartment 2 which does not have a kitchen, and her beliefs that her walls are 3 occupied by intruders. 4 addressed de novo, the Court sees no need to delve into them further. 5 6 7 In any event, since these issues will be Based on the foregoing, this matter will be remanded for a new hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 8 9 10 DATED: August 19, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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