Mollie Gale Smith v. Michael J Astrue, No. 2:2011cv08116 - Document 16 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 MOLLIE GALE SMITH, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 11-08116-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on October 4, 2011, seeking review of 19 the denial of plaintiff s application for a period of disability, 20 disability insurance benefits ( DIB ), and supplemental security income 21 ( SSI ). On November 9, 2011, the parties consented, pursuant to 28 22 U.S.C. § 636(c), 23 Magistrate Judge. 24 2012, in which: 25 decision and remanding this case for the payment of benefits or, 26 alternatively, for further administrative proceedings; and defendant 27 requests that the Commissioner s decision be affirmed or, alternatively, 28 remanded for further administrative proceedings. to proceed before the undersigned United States The parties filed a Joint Stipulation on June 28, plaintiff seeks an order reversing the Commissioner s The Court has taken 1 the parties Joint Stipulation under submission without oral argument. 2 3 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 4 5 On June 24, 2008, plaintiff filed an application for a period of 6 disability, DIB, and SSI. (Administrative Record ( A.R. ) 7 14.) 8 2006, which was denied at the reconsideration level and without appeal. 9 (A.R. Plaintiff previously filed an application for DIB on April 14, 16.) Plaintiff, who was born on June 3, 1961 (A.R. 20),1 claims 10 to have been disabled since May 18, 2005 (A.R. 14), due to carpal tunnel 11 syndrome, hysterectomy, shoulder injury and surgery, degenerative disc 12 disease, neck pain, and depression (A.R. 16, 37-38, 42, 48, 53). 13 14 After the Commissioner denied plaintiff s claim initially and upon 15 reconsideration (A.R. 14, 48-57), plaintiff requested a hearing (A.R. 16 58). 17 appeared and testified at a hearing before Administrative Law Judge 18 Robert A. Evans (the ALJ ). 19 vocational expert, also testified. 20 denied 21 subsequently denied plaintiff s request for review of the ALJ s decision 22 (A.R. 3-8). 23 /// 24 /// 25 /// On May 11, 2010, plaintiff, who was represented by counsel, plaintiff s claim (A.R. 14, 33-45.) (A.R. (Id.) 14-21), Ruth A. Arnush, a On June 4, 2010, the ALJ and the Appeals Council That decision is now at issue in this action. 26 27 28 1 On the date of the ALJ s decision, plaintiff was 48 years old, which is defined as a younger individual. (A.R. 20; citing 20 C.F.R. §§ 404.1563, 416.963.) 2 1 SUMMARY OF ADMINISTRATIVE DECISION 2 3 The ALJ found that plaintiff meets the insured status requirements 4 of the Social Security Act through September 30, 2012, and has not 5 engaged in substantial gainful activity since May 18, 2005, the alleged 6 onset date. 7 severe impairments of status post right shoulder arthroscopy and 8 chronic neck pain but does not have an impairment or combination of 9 impairments that meets or medically equals one of the listed impairments 10 in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 11 404.1525, 404.1526, 416.920(d), 416.925, 416.926). (A.R. 16.) The ALJ determined that plaintiff has the (A.R. 17.) 12 13 After reviewing the record, the ALJ determined that plaintiff has 14 the residual functional capacity ( RFC ) to perform the full range of 15 sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a). 16 (A.R. 19.) 17 past relevant work as a cake decorator and sales representative. 18 20.) 19 plaintiff s age, education,2 work experience,3 and the testimony of the 20 vocational expert, the ALJ found that jobs plaintiff could perform exist 21 in the national economy, including the job of telemarketer. 22 21.) 23 a disability, as defined in the Social Security Act, from May 18, 2005, The ALJ concluded that plaintiff is unable to perform her (A.R. However, based on his RFC assessment and after having considered (A.R. Accordingly, the ALJ concluded that plaintiff has not been under 24 25 26 27 28 2 The ALJ found that plaintiff has a high school education, plus 2 years of college and is able to communicate in English. (Id.; citing 20 C.F.R. §§ 404.1564, 416.964.) 3 The ALJ found that plaintiff has acquired work skills from [her] past relevant work. (A.R. 20; citing 20 C.F.R. §§ 404.1568, 416.968.) 3 1 through the date of his decision. (Id.) 2 3 STANDARD OF REVIEW 4 5 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 6 decision to determine whether it is free from legal error and supported 7 by substantial evidence in the record as a whole. 8 F.3d 625, 630 (9th Cir. 2007). 9 evidence as a reasonable mind might accept as adequate to support a Orn v. Astrue, 495 Substantial evidence is such relevant 10 conclusion. Id. (citation omitted). The evidence must be more than 11 a mere scintilla but not necessarily a preponderance. 12 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 13 record can constitute substantial evidence, only those reasonably drawn 14 from the record will suffice. 15 1066 (9th Cir. 2006)(citation omitted). Connett v. While inferences from the Widmark v. Barnhart, 454 F.3d 1063, 16 17 Although this Court cannot substitute its discretion for that of 18 the Commissioner, the Court nonetheless must review the record as a 19 whole, weighing both the evidence that supports and the evidence that 20 detracts from the [Commissioner s] conclusion. 21 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 22 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 23 responsible for determining credibility, resolving conflicts in medical 24 testimony, and for resolving ambiguities. 25 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 26 27 28 The Court will uphold the Commissioner s decision when the evidence is susceptible to more than one rational interpretation. 4 Burch v. 1 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 2 review only the reasons stated by the ALJ in his decision and may not 3 affirm the ALJ on a ground upon which he did not rely. 4 at 630; see also Connett, 340 F.3d at 874. 5 the Commissioner s decision if it is based on harmless error, which 6 exists only when it is clear from the record that an ALJ s error was 7 inconsequential to the ultimate nondisability determination. Robbins 8 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 9 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 10 However, the Court may Orn, 495 F.3d The Court will not reverse at 679. 11 DISCUSSION 12 13 Plaintiff claims that the ALJ erred at step two of the sequential 14 15 evaluation by failing to find plaintiff s mental impairment of 16 depression to be severe. 17 9.) 18 properly the opinion of plaintiff s physician and psychologist, Dr. Bal 19 S. Grewal. (Joint Stip. at 7-9, 12.) (Joint Stipulation ( Joint Stip. ) at 3-4, Specifically, plaintiff claims that the ALJ did not consider 20 I. 21 The ALJ Committed Reversible Error At Step Two And Needs To Consider Properly Dr. Grewal s Opinion On Remand. 22 23 At step two of the sequential evaluation process, the ALJ is tasked 24 25 with identifying a claimant s severe 26 §§ 404.1520(a)(4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c). 27 severe impairment is one that significantly limits [a claimant s] 28 5 impairments. 20 C.F.R. A 1 physical or mental ability to do basic work activities. 4 2 §§ 404.1592(c), 416.920(c). 3 circuits, including the Ninth Circuit, have held that the step-two 4 inquiry is a de minimis screening device to dispose of groundless 5 claims. 6 Accordingly, [a]n impairment or combination of impairments may 7 found not severe only if the evidence establishes a slight abnormality 8 that has no more than a minimal effect on [a claimant s] ability to 9 work. 20 C.F.R. Despite use of the term severe, most Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). be Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005) 10 (citation omitted; emphasis in original). When determining whether an 11 impairment is severe, claimant s age, education, and work experience 12 will not be considered. 20 C.F.R. §§ 404.1520(c), 416.920(c). 13 Plaintiff alleges disability, in part, due to her depression and 14 15 anxiety, for which she takes Lorazepam. (A.R. 42, 190; Joint Stip. at 16 4.) The medical evidence of record confirms that plaintiff suffers from 17 depression and anxiety. 18 only that plaintiff has the severe impairments of status post right 19 shoulder arthroscopy and chronic neck pain. 20 find that plaintiff s depression and anxiety constituted a severe 21 impairment. 22 /// In his decision, however, the ALJ determined (A.R. 17.) The ALJ did not (Id.) 23 24 25 26 27 28 4 Basic work activities are the abilities and aptitudes necessary to do most jobs. 20 C.F.R. §§ 404.1521, 416.921(b). Examples of such activities include: (1) [p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling ; (2) the capacity for seeing, hearing, and speaking ; (3) [u]nderstanding, carrying out, and remembering simple instructions ; (4) the [u]se of judgment ; (5) [r]esponding appropriately to supervision, co-workers and usual work situations ; and (6) [d]ealing with changes in a routine work setting. Id. 6 1 On July 8, 2009, Bal S. Grewal, M.D., conducted a psychological 2 examination of plaintiff pursuant to a referral by plaintiff s treating 3 physician Brian K. Padveen, M.D., who had diagnosed her with, inter 4 alia, depression and anxiety secondary to her physical impairments. 5 (A.R. 390-414.) 6 performance on various mental status examinations, and her personal, 7 social, and medical history, Dr. Grewal diagnosed plaintiff with, inter 8 alia, depressive disorder, anxiety disorder, and severe psychological 9 stressors. Based upon Dr. Grewal s observation of plaintiff, her (A.R. 402-04.) He also assessed plaintiff with a GAF score 10 of 58.5 11 impairment in the following work functions: the ability to comprehend 12 and 13 repetitive tasks ; the [a]bility to relate to other people beyond 14 giving and receiving instructions ; the [a]bility to influence people ; 15 and the [a]bility to make generalizations, evaluations or decisions 16 without immediate supervision. 17 opined that plaintiff had a moderate impairment in the following work 18 activities: 19 given work load ; the [a]bility to perform complex or varied tasks ; 20 and the [a]bility to accept and carry out responsibility for direction, 21 control and planning. (A.R. 404.) follow Dr. Grewal opined that plaintiff had a slight instructions ; the [a]bility to (A.R. 404-05.) perform simple and Further, Dr. Grewal the [a]bility to maintain a work pace appropriate to a (Id.) 22 23 Based on plaintiff s testimony and the opinion of Dr. Grewal, 24 5 25 26 27 28 The GAF scale [c]onsider[s] psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Diagnostic and Statistical Manual of Mental Disorders, DSM-IV-TR, 34 (rev. 4th ed. 2000). A rating of 51-60 reflects [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). Id. 7 1 substantial evidence of plaintiff s depression and anxiety was presented 2 to the ALJ. 3 that plaintiff s depression and anxiety would have more than a de 4 minimus impact on plaintiff s ability to perform basic work activities. 5 Thus, the ALJ s failure to either give clear and convincing reasons for 6 rejecting Dr. Grewal s opinion regarding the functional limitations 7 stemming from plaintiff s depression and anxiety or find plaintiff s 8 depression and anxiety to be severe at step two of the sequential 9 evaluation process constitutes error. That evidence, which was uncontradicted, strongly suggests 10 11 Moreover, the ALJ s error cannot be deemed harmless. In general, 12 an ALJ s failure to discuss a claimant s impairment at step two may be 13 deemed harmless only when the ALJ s error did not prejudice a claimant 14 at later steps in the sequential evaluation process. 15 example, the Ninth Circuit assumed, without deciding, that it was legal 16 error for the ALJ not to discuss plaintiff s obesity in his step two 17 analysis. 18 the assumed error was harmless, because it would not have impacted the 19 ALJ s analysis at either step four or five of the evaluation process. 20 Specifically, the Ninth Circuit found that, for purposes of step four, 21 plaintiff failed to point to any evidence of functional limitations due 22 to her obesity that would have impacted the ALJ s analysis. 23 Further, at step five, the Ninth Circuit found that no prejudice 24 occurred, because the ALJ adequately considered [plaintiff s] obesity 25 in his RFC determination -- i.e., there was no functional limitations 26 as a result of [plaintiff s] obesity that the ALJ failed to consider. 27 Id. at 684; see also Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 28 2007)(finding that any error the ALJ committed in failing to list 400 F.3d at 682. In Burch, for The Ninth Circuit concluded, however, that 8 Id. at 683. 1 plaintiff s bursitis at 2 extensively 3 limitations posed by the bursitis at [s]tep 4 ). discussed step 2 was plaintiff s harmless, bursitis because and the ALJ considered any 4 5 In this case, unlike in Burch and Lewis, the Court cannot conclude 6 that the ALJ s failure to consider plaintiff s depression and anxiety 7 and her resulting limitations is harmless error. 8 plaintiff, the ALJ did not give the requisite clear and convincing 9 reasons for his tacit rejection of Dr. Grewal s opinion regarding the 10 various work limitations stemming from plaintiff s mental impairments. 11 Rather, in his decision, the ALJ summarized Dr. Grewal s July 8, 2009 12 psychological assessment of plaintiff as follows: 13 that [plaintiff] s mood and emotional responsiveness was moderately 14 depressed. 15 impaired. 16 depression and emotional reaction to her chronic pain and limitations. 17 (A.R. 18-19.) 18 [plaintiff s] pain - depression is a factor, . . . it would not prevent 19 her from performing semiskilled work. Her attention and concentration As properly noted by [Dr. Grewal] noted skills were slightly He concluded that [plaintiff] had developed an[] agitation, Further, the ALJ concluded that, to the extent that (A.R. 19.) 20 21 Critically, the ALJ appears to have ignored or inaccurately 22 summarized plaintiff s various work limitations as specified by Dr. 23 Grewal in his July 8, 2009 psychological assessment. 24 beyond noting that plaintiff s attention and concentration skills were 25 found to be slightly impaired, the ALJ s decision does not indicate that 26 he considered or rejected Dr. Grewal s opinion regarding plaintiff s 27 other slight to moderate work limitations. 28 F.3d 715, 723 (9th Cir. 1998)(reversing and remanding case because ALJ s 9 Specifically, See Reddick v. Chater, 157 1 characterization of the record was not entirely accurate regarding the 2 content or tone ); see also Gallant v. Heckler, 743 F.2d 1450, 1456 (9th 3 Cir. 1984)(holding that it was error for an ALJ to ignore or misstate 4 competent evidence in the record to justify his conclusion). 5 6 It is unclear whether plaintiff s depression and anxiety, coupled 7 with all the work limitations resulting from them as well as from her 8 severe impairments acknowledged by the ALJ, would prevent plaintiff from 9 performing other work, because none of hypothetical questions posed to 10 the vocational expert by the ALJ included all of Dr. Grewal s functional 11 limitations and restrictions. 12 756 (9th Cir. 1989)(noting that the hypothetical questions posed to a 13 vocational expert must set forth all the claimant s limitations and 14 restrictions). 15 Dr. Grewal could have impacted the vocational expert s testimony and the 16 ALJ s analysis along the sequential evaluation process, the Court cannot 17 find the ALJ s error to be harmless. 18 (finding an error to be harmless when it was nonprejudicial to the 19 claimant or irrelevant to the ALJ s ultimate disability conclusion ). See Magallanes v. Bowen, 881 F.2d 747, Accordingly, because the work limitations assessed by See Stout, 454 F.3d at 1055 20 21 II. Remand Is Required. 22 23 The decision whether to remand for further proceedings or order an 24 immediate award of benefits is within the district court s discretion. 25 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 26 useful purpose would be served by further administrative proceedings, or 27 where the record has been fully developed, it is appropriate to exercise 28 this discretion to direct an immediate award of benefits. 10 Where no Id. at 1179 1 ( [T]he decision of whether to remand for further proceedings turns upon 2 the likely utility of such proceedings. ). 3 outstanding issues that must be resolved before a determination of 4 disability can be made, and it is not clear from the record that the ALJ 5 would be required to find the claimant disabled if all the evidence were 6 properly evaluated, remand is appropriate. However, where there are Id. at 1179-81. 7 8 9 Remand is the appropriate remedy to allow the ALJ the opportunity to remedy the above-mentioned deficiencies and errors. On remand, the 10 ALJ must correct the deficiencies and errors discussed above. 11 doing, the ALJ may need to reassess plaintiff's RFC, in which case, 12 additional testimony from a vocational expert likely will be needed to 13 determine what work, if any, plaintiff can perform. 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 11 After so 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: August 23, 2012 14 15 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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