Shirley A Cowains v. Michael J Astrue, No. 2:2012cv02178 - Document 14 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: For the reasons set forth below, the decision of the Commissioner is reversed, and the matter is remanded for further proceedings consistent with this opinion. (See document for details.) (rla)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 WESTERN DIVISION 8 9 SHIRLEY A. COWAINS, 10 Plaintiff, 11 12 13 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-2178-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff 18 Commissioner s 19 Security Disability Insurance Benefits ( DIB ) and Supplemental Security 20 Income ( SSI ) benefits. For the reasons set forth below, the decision 21 of the Commissioner is reversed, and the matter is remanded for further 22 proceedings consistent with this opinion. Shirley final Cowains decision seeks denying judicial her review applications for of the Social 23 24 I. Background 25 Plaintiff was born on September 7, 1960. (Administrative Record 26 ( AR ) at 71, 128.) She has a high school education and has work 27 experience as a home attendant, stocker, mail sorter, and telemarketer. 28 (AR at 139, 141.) Plaintiff filed her SSI and DIB applications on 1 October 8, 2008, alleging disability beginning January 8, 2007, due to 2 affective mood disorder, fracture of the right ankle and cervical pain. 3 (AR at 110-113, 114-116.) 4 Plaintiff s applications were denied initially on February 3, 2009. 5 (AR at 76-80, 76-81.) An administrative hearing was held on April 15, 6 2010, before Administrative Law Judge ( ALJ ) David Marcus. Plaintiff, 7 represented by counsel, testified, as did a Vocational Expert ( VE ). 8 (AR at 48-67.) 9 On July 7, 2010, ALJ Marcus issued an unfavorable decision. (AR at 10 23-34.) The ALJ found that the Plaintiff had not engaged in substantial 11 gainful activity since the alleged onset date. (AR at 25.) The ALJ 12 further found that, pursuant to 20 C.F.R. 416.920(c), the medical 13 evidence established that Plaintiff suffered from the following severe 14 impairments: status post right ankle surgery, cervical osteoarthritis, 15 and lumbar discogenic disease. (Id.) However, the ALJ determined that 16 Plaintiff s impairments did not meet, or were not medically equal to, 17 one of the listed impairments in 20 C.F.R., Part 404, Subpart P, 18 Appendix 1. (AR at 27.) 19 The ALJ next found that Plaintiff retained the residual functional 20 capacity 21 404.1567(b) and 416.967(b) in that she can lift and carry 20 pounds 22 occasionally, 10 pounds frequently, can stand and walk 6 hours out of an 23 8 hour day, can sit 6 hours out of an 8 hour day, and can frequently 24 bend, stoop, crouch and kneel. (Id.) Plaintiff was deemed capable of 25 performing her past relevant work as a home companion, cafeteria 26 attendant, mail clerk and telemarketer. (AR at 29-30.) The ALJ concluded 27 that Plaintiff was not disabled within the meaning of the Social 28 Security Act. See 20 C.F.R. § 416.920(f). (AR at 30.) ( RFC ) to perform light 2 work as defined in 20 C.F.R. 1 On December 21, 2011, the Appeals Council denied review (AR at 3- 2 8). Plaintiff then timely commenced this action for judicial review. On 3 August 23, 2012, the parties filed a Joint Stipulation ( Joint Stip. ) 4 of disputed facts and issues. Plaintiff contends that the ALJ erred by: 5 (1) improperly concluding that Plaintiff s mental impairment was not 6 severe, and (2) failing to perform a proper credibility analysis. (Joint 7 Stip. at 4.) Plaintiff seeks reversal of the Commissioner s denial of 8 her applications and payment of benefits or, in the alternative, remand 9 for a new administrative hearing. (Joint Stip. at 18-19.) The 10 Commissioner requests that the ALJ s decision be affirmed. (Joint Stip. 11 at 19.) 12 After reviewing the parties respective contentions and the record 13 as a whole, the Court finds Plaintiff s contention regarding the ALJ s 14 non-severity finding to be meritorious and remands this matter for 15 further proceedings consistent with this opinion.1 16 17 18 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 19 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 20 decision must be upheld unless the ALJ s findings are based on legal 21 error or are not supported by substantial evidence in the record as a 22 whole. 23 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 24 such evidence as a reasonable person might accept as adequate to support 25 a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark 26 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 27 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 28 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra v. 1 The Court does not reach the remaining claims of error and will not decide whether these issues would independently warrant relief. 3 1 evidence supports a finding, the reviewing court must review the 2 administrative record as a whole, weighing both the evidence that 3 supports 4 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 5 the evidence can support either affirming or reversing the ALJ s 6 conclusion, the reviewing court may not substitute its judgment for 7 that of the ALJ. Robbins, 466 F.3d at 882. and the evidence that detracts from the Commissioner s 8 9 III. Discussion 10 The Court agrees with Plaintiff that remand is warranted based upon 11 the ALJ s erroneous finding that her mental impairment was non-severe, 12 because that decision is not supported by substantial evidence. The 13 existence of a severe impairment is demonstrated when the evidence 14 establishes that an impairment has more than a minimal effect on an 15 individual s ability to perform basic work activities. Webb v. Barnhart, 16 433 F.3d 683, 686-87 (9th Cir. 2005); Smolen v. Chater, 80 F.3d 1273, 17 1290 18 regulations 19 aptitudes necessary to do most jobs, which include physical functions 20 such as walking, standing, sitting, pushing, carrying; capacities for 21 seeing, hearing and speaking; understanding and remembering simple 22 instructions; responding appropriately in a work setting; and dealing 23 with changes in a work setting. 20 C.F.R. § 404.1521(b). The inquiry at 24 this stage is a de minimis screening device to dispose of groundless 25 claims. Smolen, 80 F.3d at 1290 (citing Bowen v. Yuckert, 482 U.S. 137, 26 153-54 (1987)). An impairment is not severe only if it is a slight 27 abnormality with no more than a minimal effect on an individual s 28 ability to work. See SSR 85-28; Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1996); define 20 basic C.F.R. work §§ 404.1521(a), activities 4 as 416.921(a). the abilities The and 1 (9th Cir. 1988). A finding of no disability at step two may only be 2 affirmed where there is a total absence of objective evidence of severe 3 medical impairment. Webb, 433 F.3d at 688 (reversing a step two 4 determination because there was not substantial evidence to show that 5 Webb s claim was groundless ). 6 Here, Plaintiff has offered sufficient evidence to demonstrate that 7 her mental impairment has more than a minimal effect on her ability to 8 perform 9 administrative hearing regarding her depression, auditory and visual 10 hallucinations, insomnia, and difficulty concentrating. (AR at 57-59.) 11 In addition, beginning in approximately May 2007 and continuing through 12 2008, Plaintiff was treated at Compton Mental Health Center by Dr. Norma 13 Aguilar, M.D., who diagnosed Plaintiff with depression, insomnia and 14 anxiety. (See, e.g., AR at 362, 367-369, 371, 374-378, 461, 463-465, 15 588-595.) At various times, Plaintiff was prescribed Risperdal, Lithium, 16 Topamax, and Elavil.2 (AR at 370, 372, 391, 579.) Plaintiff s 17 records documenting her ongoing mental health treatment as well as her 18 history of prescription medication used to treat mental health disorders 19 indicates a level of impairment that at least meets the de minimis 20 requirement at this stage of the inquiry. Smolen, 80 F.3d at 1290. work-related functions. Plaintiff testified at the medical 21 In addition, the consultative examining psychiatrist, Dr. Jeffrey 22 Litzinger, M.D. diagnosed Plaintiff with mood disorder not otherwise 23 specified 24 Functioning ( GAF ) score of 55, which indicates moderate symptoms or ( NOS ) and psychosis NOS with a Global Assessment of 25 26 27 28 2 Risperdal is an antipsychotic medication used to treat schizophrenia and bipolar disorder. Lithium is used to treat and prevent episodes of mania in people with bipolar disorder. Topomax is an anticonvulsant used to treat seizures and migraine headaches. Elavil is a tricyclic antidepressant. http://www.nlm.nih.gov. 5 1 moderate difficulty in social, occupational, or school functioning. (AR 2 at 39-395.) Dr. Litzinger also determined that Plaintiff was moderately 3 limited in her ability to maintain concentration, persistence and pace. 4 (AR at 395.) The reviewing state agency physician concluded that 5 Plaintiff was moderately limited in her ability to carry out detailed 6 instructions, to maintain attention and concentration for extended 7 periods and to interact appropriately with the general public. (AR at 8 407-408.) The reviewing physician concluded that Plaintiff had a mental 9 RFC for simple, repetitive tasks. (AR at 409.) 10 The ALJ determined that Plaintiff s mental impairments were not 11 severe for the following reasons: Although Plaintiff s mental health 12 records show some depression, there was little functional impairment 13 except for the extreme residual functional capacity assessment by a 14 treating 15 treatment has consisted of a conservative regimen of psychotropic 16 medication which has been effective in controlling [her] symptoms. 17 (Id.) The consulting examining psychiatrist, Dr. Litzinger, found that, 18 although Plaintiff was moderately limited in her ability to maintain 19 concentration and attention, persistence and pace, she is only mildly 20 limited in other domains. (Id.) Finally, at the hearing, [Plaintiff] 21 did not exhibit substantial difficulty in her ability to maintain 22 concentration, attention, persistence or pace. (Id.) 23 psychologist, Anita Washington, Ph.D. 3 (Id.) Plaintiff s Given the minimal threshold required to show that an impairment is 24 25 3 26 27 28 In a Mental Impairment Questionnaire dated February 22, 2008, Dr. Washington opined that Plaintiff had major depression; that she had paranoid thoughts and heard voices; that she had a GAF score of 40; and that she had extreme limitations in various areas of functioning. (AR at 579-584.) The ALJ gave little weight to Dr. Washington s report (AR at 26), a finding which Plaintiff does not contest. 6 1 severe, the ALJ s determination that Plaintiff s mental impairments are 2 not severe was not supported by substantial evidence. First, the ALJ did 3 not 4 longitudinal history of mental health treatment at the Compton Mental 5 Health Clinic. Even if the ALJ properly rejected Dr. Washington s 6 February 7 Plaintiff s other mental health records. 8 9 sufficiently 22, articulate 2008 report, any he reason provided to no reject reason Plaintiff s for rejecting Second, the ALJ improperly relied upon the examining physician s opinion without providing any basis for rejecting the treating 10 physician s opinion. A treating physician s opinion must be given 11 controlling weight if it is well-supported and not inconsistent with the 12 other substantial evidence in the record. Orn v. Astrue, 495 F.3d 625, 13 631-32 (9th Cir. 2007); 20 C.F.R. § 404.1527(d)(2). The ALJ may not 14 reject the opinion of a treating physician, even if it is contradicted 15 by the opinion of another doctor, without first providing specific and 16 legitimate reasons supported by substantial evidence in the record. 17 Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996); Rollins v. 18 Massanari, 261 F.3d 853, 856 (9th Cir. 2001); Murray v. Heckler, 722 19 F.2d 499, 502 (9th Cir. 1983) ( If the ALJ wishes to disregard the 20 opinion of the treating physician, he or she must make findings setting 21 forth specific, legitimate reasons for doing so that are based on 22 substantial evidence in the record ). As noted previously, the ALJ 23 provided specific reasons for rejecting Dr. Washington s February 22, 24 2008 report, but did not do so for Plaintiff s other voluminous mental 25 health treatment records. 26 Finally, the other facts cited by the ALJ, even when viewed 27 collectively, do not constitute substantial evidence. The fact that the 28 Plaintiff s treatment has consisted of a conservative regimen of 7 1 psychotropic medication is not a sufficient reason to find that 2 Plaintiff s mental impairments are non-severe at step two of the 3 sequential evaluation. Indeed, it would seem that a prescription for 4 psychotropic medication might indicate the existence of a severe 5 impairment. Nor does the ALJ s personal observation of Plaintiff at the 6 administrative hearing provide a substantial basis his finding the 7 impairment non-severe at this stage of the inquiry. Accordingly, the 8 ALJ s non-severity finding at step two of the evaluative process was not 9 supported by substantial evidence and warrants remand for further 10 proceedings. 11 12 IV. 13 Conclusion The decision whether to remand for further proceedings is within 14 this Court s discretion. 15 Cir. 16 administrative 17 developed, it is appropriate to exercise this discretion to direct an 18 immediate award of benefits. Id. at 1179 ( the decision of whether to 19 remand for further proceedings turns upon the likely utility of such 20 proceedings ); Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 21 However, where there are outstanding issues that must be resolved before 22 a determination of disability can be made, and it is not clear from the 23 record that the ALJ would be required to find the claimant disabled if 24 all 25 Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003); see also 26 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003)(remanding case 27 for reconsideration of credibility determination). 2000). the Where no Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th useful proceedings, evidence were purpose or properly where would the evaluated, 28 8 be served record remand has is by further been fully appropriate. 1 Here, the evidence 2 considered 3 Regulations, but which might not prevent Plaintiff from performing 4 either her past work or some work in the national economy. However, that 5 is not a determination that this Court can make. Accordingly, the case 6 is remanded for further evaluation in accordance with the five-step 7 sequential process. severe shows within the an mental meaning impairment of the that Social can Security 8 9 DATED: August 30, 2012 10 11 12 ______________________________ Marc L. Goldman United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 be
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