Edward Gatson v. Michael J. Astrue, No. 2:2010cv09531 - Document 22 (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 matter for further proceedings consistent with this decision. IT ISFURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. 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 EDWARD GATSON, 12 13 14 15 16 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 10-9531 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Plaintiff Edward Gatson ( Plaintiff ) brings this action seeking 22 to reverse and remand the decision of the Commissioner of the Social 23 Security Administration (the Commissioner or the Agency ) denying his 24 application for Supplemental Security Income ( SSI ) benefits. 25 parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction 26 of the undersigned United States Magistrate Judge. 27 stated below, the decision of the Agency is REVERSED and REMANDED for 28 further proceedings. The For the reasons 1 II. 2 PROCEDURAL HISTORY 3 4 On June 30, 2008, Plaintiff filed an application for SSI benefits 5 claiming that he became disabled on January 1, 2004. (Administrative 6 Record ( AR ) 148-52). 7 August 11, 2008. (AR 49-52). Plaintiff then requested a hearing, which 8 was held before Administrative Law Judge ( ALJ ) Alexander Weir III on 9 August 5, 2009. (AR 22-46, 53-55). Plaintiff appeared with counsel and 10 testified. (AR 24-25, 27-42). Sandra Snyder, a vocational expert, also 11 testified at the hearing. The Commissioner denied his application on (AR 42-45, 99). 12 13 On November 17, 2009, the ALJ issued a decision denying benefits. 14 (AR 10-21). Plaintiff sought review before the Appeals Council on 15 December 8, 2009, which ultimately denied his request on October 20, 16 2010. 17 consider additional information and again denied review on December 17, 18 2010. (AR 1-4). (AR 5-9). The Appeals Council then vacated that action to Plaintiff filed the instant action on July 7, 2011. 19 20 III. 21 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 22 23 To qualify for disability benefits, a claimant must demonstrate a 24 medically determinable physical or mental impairment that prevents him 25 from engaging in substantial gainful activity1 and that is expected to 26 1 Substantial gainful activity means work that involves doing 27 significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. § 416.910. 28 2 1 result in death or to last for a continuous period of at least twelve 2 months. 3 42 U.S.C. § 423(d)(1)(A)). 4 incapable of performing the work he previously performed and incapable 5 of performing any other substantial gainful employment that exists in 6 the national economy. 7 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 8 9 10 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 11 12 (1) Is the claimant presently engaged in substantial gainful 13 activity? 14 If not, proceed to step two. 15 (2) Is the If so, the claimant is found not disabled. claimant s impairment 16 claimant is found not disabled. 17 severe? If not, the three. 18 (3) Does the claimant s If so, proceed to step impairment meet or equal the 19 requirements of any impairment listed at 20 C.F.R. Part 20 404, Subpart P, Appendix 1? 21 found disabled. 22 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing his past work? If 23 so, the claimant is found not disabled. If not, proceed 24 to step five. 25 (5) Is the claimant able to do any other work? 26 claimant is found disabled. 27 found not disabled. 28 3 If not, the If so, the claimant is 1 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 2 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. § 416.920(b)- 3 (g)(1). 4 5 The claimant has the burden of proof at steps one through four, and 6 the Commissioner has the burden of proof at step five. 7 F.3d at 953-54. 8 establishing an inability to perform his past work, the Commissioner 9 must show that the claimant can perform some other work that exists in 10 significant numbers in the national economy, taking into account the 11 claimant s residual functional capacity ( RFC ),2 age, education and 12 work experience. 13 The Commissioner may do so by the testimony of a vocational expert or 14 by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 15 Part 404, Subpart P, Appendix 2 (commonly known as the Grids ). 16 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 17 claimant 18 limitations, the Grids are inapplicable and the ALJ must take the 19 testimony of a vocational expert. 20 (9th Cir. 2000). 21 \\ 22 \\ 23 \\ 24 \\ has Bustamante, 262 If, at step four, the claimant meets his burden of Tackett, 180 F.3d at 1100; 20 C.F.R. § 416.920(g)(1). both exertional (strength-related) and When a nonexertional Moore v. Apfel, 216 F.3d 864, 869 25 26 27 2 Residual functional capacity is the most [one] can still do despite [his] limitations and represents an assessment based on all 28 the relevant evidence. 20 C.F.R. § 416.945(a). 4 1 IV. 2 STANDARD OF REVIEW 3 Under 4 42 U.S.C. § 405(g), a district court may review the 5 Commissioner s decision to deny benefits. The court may set aside the 6 Commissioner s decision when the ALJ s findings are based on legal error 7 or are not supported by substantial evidence in the record as a whole. 8 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 9 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 10 Substantial evidence is more than a scintilla, but less than a 11 12 preponderance. 13 which a reasonable person might accept as adequate to support a 14 conclusion. 15 a finding, the court must consider the record as a whole, weighing 16 both 17 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 18 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 19 reasonably support either affirming or reversing that conclusion, the 20 court may not substitute its judgment for that of the Commissioner. 21 Reddick, 157 F.3d at 720-21. 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ evidence Reddick, 157 F.3d at 720. Id. It is relevant evidence To determine whether substantial evidence supports that supports and evidence 27 28 5 that detracts from the If the evidence can 1 V. 2 DISCUSSION 3 4 The ALJ Failed To Properly Assess Plaintiff s Mental Health 5 Impairment At Step Two Of The Evaluation Process 6 7 Plaintiff argues that the ALJ erred in finding that his mental 8 impairment is not severe. (Plaintiff s Memorandum at 4). Specifically, 9 Plaintiff contends that the ALJ lacked the support of substantial 10 evidence in assessing Plaintiff s condition to conclude 11 Plaintiff s mental impairment is not severe. 12 significant evidence in the record of a severe mental impairment, the 13 Court agrees that the ALJ failed to properly assess Plaintiff s mental 14 impairment at step two. (Id. at 8.) that As there is 15 By its own terms, the evaluation at step two is a de minimis test 16 17 intended to weed out the most minor of impairments. See Bowen v. 18 Yuckert, 482 U.S. 137, 153-154, 107 S. Ct. 2287, 96 L. Ed. 2d 119 19 (1987); Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2005) 20 (stating that the step two inquiry is a de minimis screening device to 21 dispose of groundless claims) (quoting Smolen, 80 F.3d at 1290). 22 impairment is not severe only if the evidence establishes a slight 23 abnormality that has only a minimal effect on an individual s ability 24 to work. 25 omitted). 26 \\ 27 \\ An Smolen, 80 F.3d at 1290 (internal quotations and citations 28 6 The ALJ here applied more than a de minimis test when he determined 1 2 that Plaintiff s mental impairment is not severe. Moreover, this error 3 was not harmless because after the ALJ erroneously found the impairment 4 non-severe, he failed to adequately address the remaining steps of the 5 Secretary s regulations governing mental impairments, as described 6 below. 7 8 Where there is evidence of a mental impairment that allegedly 9 prevents the plaintiff from working, the Agency has supplemented the 10 five-step sequential evaluation process with additional regulations.3 11 Keyser v. Comm r Soc. Sec. Admin., __ F.3d __, 2011 WL 2138237 at *2-3 12 (9th Cir. Jun. 11, 2011); Maier v. Comm r of the Soc. Sec. Admin., 154 13 F.3d 913, 914-915 (9th Cir. 1998) (citing 20 C.F.R. § 416.920a) (per 14 curiam). 15 certain medical findings relevant to the plaintiff s ability to work. 16 20 C.F.R. § 416.920a(b)(1). 17 these medical findings, the ALJ must rate the degree of functional loss 18 resulting from the impairment by considering four areas of function: (a) 19 activities of daily living; (b) social functioning; (c) concentration, 20 persistence, or pace; and (d) episodes of decompensation. 21 416.920a(c)(2)-(4). 22 must determine whether the claimant has a severe mental impairment. 23 C.F.R. § 416.920a(d)(emphasis added). Fourth, when a mental impairment 24 is found to be severe, the ALJ must determine if it meets or equals a 25 listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. 26 First, the ALJ must determine the presence or absence of Second, when the plaintiff establishes 20 C.F.R. § Third, after rating the degree of loss, the ALJ 20 20 C.F.R. § These additional steps are intended to assist the ALJ in 27 determining the severity of mental impairments at steps two and three. The mental RFC assessment used at steps four and five of the evaluation 28 process, on the other hand, require a more detailed analysis. Social Security Ruling 98-8p, 1996 WL 374184 at * 4. 3 7 1 416.920a(d)(2). Finally, if a listing is not met, the ALJ must then 2 assess the plaintiff s RFC, and the ALJ s decision must incorporate the 3 pertinent findings and conclusions regarding the plaintiff s mental 4 impairment, including a specific finding as to the degree of limitation 5 in each of the functional areas described in [§ 416.920a)c)(3)]. 6 C.F.R. § 416.920a(d)(3), (e)(2). 20 7 8 The regulations describe an impairment as follows: 9 10 A physical or mental impairment must result from anatomical, 11 physiological, or psychological abnormalities which can be 12 shown 13 diagnostic techniques. 14 be established by medical evidence consisting of signs, 15 symptoms, 16 plaintiff s] statements of symptoms. by medically and acceptable clinical and laboratory A physical or mental impairment must laboratory findings, not only by [a 17 18 20 C.F.R. § 416.908; see also Ukolov v. Barnhart, 420 F.3d 1002, 1005 19 (9th Cir. 2005) (noting that the existence of a medically determinable 20 physical or mental impairment may only be established with objective 21 medical findings) (citing Social Security Ruling 96-4p, 1996 WL 374187 22 at *1-2). 23 24 Here, Plaintiff s mental impairment is sufficient to satisfy the 25 de minimis test for severity. Plaintiff s mental health treatment 26 records are extensive and date back to November 2008. (AR 18, 340-45). 27 Plaintiff first visited the Downtown Mental Health Center on November 28 6, 2008, shortly after relocating from Texas. 8 (AR 340). Plaintiff 1 cited an onset of depression after his mother passed in 2005 and 2 complained of poor sleep, irritability, anger, and frustration. (Id.). 3 On March 4, 2009, a social worker at the Downtown Mental Health 4 5 Center examined Plaintiff. 6 depression, poor sleep, [poor] appetite, and auditory hallucinations 7 at 8 Plaintiff s global assessment of functioning ( GAF ) at 45. (AR 19, 334- 9 335). night. (AR 19, (AR 19, 334). 334-35). The Plaintiff complained of social worker also assessed A GAF of 45 is consistent with serious symptoms or impairment 10 in social and occupational functioning. (AR 19). Based on the 11 Plaintiff s history, the interviewing social worker diagnosed him with 12 major depressive disorder with psychotic features. (AR 19, 339). 13 14 In April 2009, Dr. Juan Perez, a psychologist and case manager at 15 the Downtown Mental Health Center, diagnosed Plaintiff with major 16 depressive disorder with psychotic features. Dr. Perez also assessed 17 Plaintiff s GAF at 45. Dr. Perez additionally 18 concluded that Plaintiff had moderate limitations to understand and 19 remember detailed instructions, (AR 285), and had marked limitations 20 in social interactions and to tolerate normal levels of stress. 21 286). 22 impairment 23 opinions . . . that reflect judgments about the nature and severity of 24 [a 25 prognosis, are evidence that a plaintiff may submit in support of his 26 disability claim). (AR 19, 283-87). (AR Thus, Dr. Perez s observations indicate that Plaintiff s mental was plaintiff s] severe. See 20 impairment(s), C.F.R. including 27 28 9 § 416.927(a)(2) symptoms, ( Medical diagnosis and 1 On September 2, 2010, Dr. Wexler, a staff psychiatrist at the 2 Department of Mental Health, also diagnosed Plaintiff with major 3 depressive disorder. 4 appears to have challenges in intellectual and adaptive functioning, 5 and would benefit from a psycho-social rehabilitation program. (Id.) 6 Given the consistent evidence in the record of serious mental health 7 treatment 8 Plaintiff s 9 416.920a(b)(1). 10 and (AR 486). diagnoses, mental the impairment Accordingly, His prognosis claimed Plaintiff ALJ was the erred not de when he severe. minimis test concluded See of 20 that C.F.R. severity § is satisfied. 11 12 The ALJ states that reports completed by Dr. Perez at the Downtown 13 Mental Health Center are not entitled to significant weight. 14 However, the ALJ fails to provide any evidence regarding his decision 15 to minimize the weight of Dr. Perez s findings besides noting, [t]hese 16 assessments were completed by a case manager who apparently never saw 17 the claimant. 18 examine Plaintiff, his opinions stem directly from a report created by 19 an interviewing source. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th 20 Cir. 1995) (stating that reports of a nonexamining advisor need not be 21 discounted and may serve as substantial evidence when they are supported 22 by other evidence in the record and are consistent with it. ). 23 Alternatively, even if the ALJ disregarded Dr. Perez s opinions, Dr. 24 Wexler s first-hand examination and subsequent diagnosis of Plaintiff 25 provide substantial evidence indicating that Plaintiff s medically 26 determinable mental impairment is severe. (Id.). (AR 20). Instead, even if Dr. Perez did not directly 27 28 10 (AR 484-86). 1 Remand for further proceedings is appropriate where additional 2 proceedings could remedy defects in the Commissioner s decision. 3 Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000); Kail v. Heckler, 4 722 F.2d 1496, 1497 (9th Cir. 1984). 5 evaluated the severity of Plaintiff s mental impairment, the case must 6 be remanded to remedy this defect. 7 ( [W]here 8 impairment, the social security regulations require the ALJ to complete 9 a PRTF and append it to the decision, or incorporate its mode of a claimant has See Because the ALJ improperly See Keyser, 2011 WL 2138237 at *4 presented a colorable claim of mental 10 analysis into his findings and conclusions. Failure to do so requires 11 remand. ). Upon remand the ALJ must conduct the supplemental evaluation 12 of the mental impairment evidence, as required by the Secretary s 13 regulations, and incorporate his findings into any future decision. 14 15 VI. 16 CONCLUSION 17 18 Consistent with the foregoing, IT IS ORDERED that judgment be 19 entered REVERSING the decision of the Commissioner and REMANDING this 20 matter for further proceedings consistent with this decision. 21 FURTHER ORDERED that the Clerk of the Court serve copies of this Order 22 and the Judgment on counsel for both parties. IT IS 23 24 DATED: August 30, 2011 25 26 27 _______/S/___________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 28 11 1 2 3 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS INTENDED TO 4 BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR 5 LEXIS. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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