Rhonda L Cisneros v. Michael J Astrue, No. 5:2007cv01045 - Document 19 (C.D. Cal. 2008)

Court Description: MEMORANDUM AND OPINION by Magistrate Judge Rosalyn M. Chapman: IT IS ORDERED that: (1) plaintiffs request for relief is granted; and (2) the Commissioners decision is reversed, and the action is remanded to the Social Security Administration for further proceedings consistent with this Opinion and Order, pursuant to sentence four of 42 U.S.C. § 405(g), and Judgment shall be entered accordingly. See order for further details. (jy)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 RHONDA L. CISNEROS, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) __________________________________) No. EDCV 07-1045-RC OPINION AND ORDER 17 18 Plaintiff Rhonda L. Cisneros filed a complaint on August 17, 19 2007, seeking review of the Commissioner s decision denying her 20 application for disability benefits. 21 complaint on February 5, 2008, and the parties filed a joint 22 stipulation on March 19, 2008. The Commissioner answered the 23 24 BACKGROUND 25 I 26 On December 18, 2002, plaintiff applied for disability benefits 27 under the Supplemental Security Income program ( SSI ) of Title XVI of 28 the Act, 42 U.S.C. § 1382(a), claiming an inability to work since 1 September 30, 2001, due to migraine headaches, back pain, depression, 2 and memory loss. 3 The plaintiff s application was initially denied on May 8, 2003, and 4 was denied again on July 3, 2003, following reconsideration. 5 40. 6 hearing, which was held before Administrative Law Judge Lowell Fortune 7 ( the ALJ ) on September 19, 2006.1 8 December 22, 2006, the ALJ issued a decision finding plaintiff is not 9 disabled. Certified Administrative Record ( A.R. ) 55-57, 64. A.R. 32- On February 28, 2005, plaintiff requested an administrative A.R. 9-20. A.R. 50-51, 415-68. On The plaintiff appealed the decision to the 10 Appeals Council, which denied review on June 25, 2007. 11 A.R. 5-8, 393, 412-14. 12 13 14 II The plaintiff, who was born on October 20, 1958, is currently 50 15 years old. A.R. 55, 418. She has a tenth-grade education and 16 previously worked as a cashier, a dispatcher, an inspector, a clerk, 17 and a waitress. A.R. 65, 70, 73-80, 398, 403, 418-20. 18 19 The plaintiff has a history of mental health problems dating back 20 to 2003,2 when she began receiving therapy with a mental health 21 professional in Albuquerque, New Mexico.3 22 2003, Gerald Fredman, M.D., a psychiatrist, examined plaintiff, A.R. 119. On April 8, 23 24 25 1 The ALJ found good cause for plaintiff s tardy administrative hearing request. A.R. 12. 2 26 27 28 Although plaintiff has both mental and physical problems, this opinion focuses on plaintiff s mental health complaints. 3 These medical records are not part of the administrative record. 2 1 diagnosed her with post-traumatic stress disorder and agoraphobia, and 2 determined plaintiff s Global Assessment of Functioning ( GAF ) was 3 50.4 4 consistent with post-traumatic stress disorder related to childhood 5 abuse and neglect. 6 121. 7 (rapes) was from [her] mother s old boyfriends. 8 age 9, the second at 12, and the third at 14[;] two of the men were 9 boyfriends of her mother and the third one was a friend of [her] 10 A.R. 119-22. Dr. Fredman found plaintiff has a history The abuse was both physical and sexual. A.R. The physical abuse was by her mother and the sexual abuse mother. A.R. 119. The first rape was at Dr. Fredman concluded: 11 12 From a psychiatric perspective there would be mild 13 limitations understanding and remembering basic 14 instructions. 15 concentration. 16 to changes in a workplace. 17 limitations persisting [in] a task of basic work. 18 would be marked limitations interacting with the general 19 public, co-workers and supervisors. There would be mild limitations with There would be moderate limitations adapting There would be moderate There She is probably capable 20 21 22 23 24 25 26 27 28 4 A GAF score reflects the clinician s judgment of the individual s overall level of functioning regarding only psychological, social and occupational functioning but not considering physical or environmental limitations. American Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed. (Text Revision) 2000); Langley v. Barnhart, 373 F.3d 1116, 1122-23 n. 3 (10th Cir. 2004). A GAF of 50 means the individual exhibits [s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job). American Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000). 3 1 of handling whatever funds are due her. 2 3 A.R. 122. Dr. Fredman further opined plaintiff was: markedly 4 limited 5 in her ability to interact with the public, co-workers, and 5 supervisors; moderately limited 6 in her ability to work without 6 supervision, adapt to workplace changes, and use public transportation 7 or travel to unfamiliar places; mildly limited 7 in her ability to 8 understand and remember detailed instructions, carry out instructions, 9 attend and concentrate, and be aware of normal hazards and react 10 appropriately; and not limited in her ability to understand and 11 remember very short and simple instructions. A.R. 130-32. 12 13 On May 1, 2003, nonexamining psychiatrist E. Ching, M.D., opined 14 plaintiff has an anxiety-related disorder that causes mild 15 restriction in her activities of daily living, moderate difficulty 16 maintaining social functioning, and mild difficulties maintaining 17 concentration, persistence or pace, and has caused no episodes of 18 decompensation. 19 markedly limited in her ability to interact appropriately with the 20 general public, moderately limited in her ability to: work in A.R. 138-51. Dr. Ching also opined plaintiff is 21 5 22 23 24 25 26 In this regard, markedly limited means the evidence supports the conclusion that the individual cannot usefully perform or sustain the activity. A.R. 130. 6 Moderately limited means [t]he evidence supports the conclusion that the individual s capacity to perform the activity is impaired but the degree/extent of the impairment needs to be further described. Id. 7 27 28 Mildly limited means [t]he effects of the mental disorder do not significantly limit the individual from consistently and usefully performing the activity. Id. 4 1 coordination with or proximity to others without being distracted by 2 them; accept instructions and respond appropriately to criticism from 3 supervisors; get along with coworkers or peers without distracting 4 them or exhibiting behavioral extremes; respond appropriately to 5 changes in the work setting; and travel in unfamiliar places or use 6 public transportation; and otherwise not significantly limited. 7 134-37. 8 A.R. 136. 9 Dr. Ching s opinions. A.R. Dr. Ching concluded plaintiff can do non-public type work. On July 3, 2003, another nonexamining physician affirmed A.R. 136, 138. 10 11 On January 10, 2005, plaintiff was examined at the Riverside 12 County Community Health Agency, where she was diagnosed with 13 depression and referred for mental health treatment. 14 January 18, 2005, plaintiff was hospitalized at the Hemet Valley 15 Medical Center ( HVMC ), where Timothy Almquist, M.D., diagnosed her 16 as having depression, with suicidal ideation, and anxiety. 17 73. 18 diagnosed her with single episode, severe major depression and post- 19 traumatic stress disorder without psychosis, and determined 20 plaintiff s GAF was 25.8 21 plaintiff as disheveled, sad, depressed, and expressing suicidal 22 ideations of walking in front of a car; but also noted plaintiff was A.R. 190. On A.R. 172- On January 19, 2005, Julie Wareham, M.D., examined plaintiff and A.R. 177-80. Dr. Wareham described 23 24 25 26 27 28 8 A GAF of 21-30 means that the individual s [b]ehavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). American Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000). 5 1 alert and oriented (x3), had no racing thoughts or homicidal ideations 2 and her memory and attention were intact. 3 prescribed medication to plaintiff, and noted plaintiff stated she had 4 not been taking medication because she could not afford it. 5 177. 6 at which time plaintiff s GAF was 38.9 A.R. 177-79. Dr. Wareham A.R. 170, Dr. Wareham discharged plaintiff from HVMC on January 26, 2005, A.R. 170-71. 7 8 9 On February 10, 2005, E. Leonard, M.D., examined plaintiff at the Riverside County Department of Mental Health, diagnosed her with 10 recurrent major depression and prescribed medication. 11 29. The plaintiff continued to receive treatment. A.R. 220, 225- A.R. 198-224. 12 13 On April 4, 2005, plaintiff was again admitted to HVMC, where 14 Richard B. Mantell, M.D., examined her and diagnosed her as having 15 depression with suicidal ideation and a history of bipolar disorder. 16 A.R. 157-58. 17 suicidal ideations, was diagnosed with bipolar disorder and prescribed 18 medication. 19 HVMC until April 11, 2005, when Dr. Wareham discharged her with a 20 diagnosis of bipolar disorder, without psychotic features. 21 56. On April 5, 2005, plaintiff, who was again voicing A.R. 155, 162-65. Plaintiff remained hospitalized at A.R. 155- 22 23 24 25 26 27 28 9 A GAF of 31-40 indicates an individual has [s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). American Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000). 6 On April 12, 2006, Harrell Reznick, Ph.D., a clinical 1 2 psychologist, examined plaintiff, conducted psychological testing, and 3 diagnosed plaintiff as having an unspecified mood disorder and an 4 unspecified personality disorder. 5 plaintiff presented with what appeared to be a sub-optimal effort 6 throughout this evaluation, resulting in test performances that seem 7 to underestimate her actual levels of functioning. 8 Reznick further noted plaintiff presented with some signs and 9 symptoms of depression, although she appeared to exaggerate them A.R. 238-48. Dr. Reznick noted A.R. 238. 10 during this evaluation, apparently for self-serving reasons. 11 239. Dr. A.R. Dr. Reznick concluded: 12 13 [Plaintiff] can perform simple and repetitive tasks with 14 minimal supervision and is able to perform these tasks with 15 appropriate persistence and pace over a normal work cycle. 16 She is able to understand, remember and carry out at least 17 simple to moderately complex verbal instructions without 18 difficulty. 19 tolerating ordinary work pressures and mild difficulties 20 interacting with others in the workplace. 21 basic work and safety standards in the workplace without 22 difficulty. 23 financial affairs independently. She would experience mild difficulties She can observe She is also capable of handling her own 24 25 A.R. 244-48. 26 27 28 On December 16, 2006, plaintiff was taken by ambulance to, and admitted at, the Riverside County Regional Medical Center under 7 1 California Welfare & Institutions Code § 5150,10 diagnosed with 2 bipolar disorder II, and prescribed medication. 3 December 17, 2006, plaintiff was discharged to her mother s care. 4 A.R. 376. A.R. 359-92. On 5 6 DISCUSSION 7 III 8 9 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner s decision denying plaintiff disability 10 benefits to determine if his findings are supported by substantial 11 evidence and whether the Commissioner used the proper legal standards 12 in reaching his decision. 13 1172 (9th Cir. 2008); Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 14 1155, 1159 (9th Cir. 2008). Stubbs-Danielson v. Astrue, 539 F.3d 1169, 15 16 The claimant is disabled for the purpose of receiving benefits 17 under the Act if she is unable to engage in any substantial gainful 18 activity due to an impairment which has lasted, or is expected to 19 20 21 22 23 24 25 26 27 28 10 Section 5150 provides, in pertinent part: When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff . . . of an evaluation facility designated by the county, designated members of a mobile crisis team . . . , or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72hour treatment and evaluation. Cal. Welf. & Inst. Code § 5150. 8 1 last, for a continuous period of at least twelve months. 42 U.S.C. § 2 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). 3 burden of establishing a prima facie case of disability. 4 Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 5 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). The claimant bears the Roberts v. 6 7 The Commissioner has promulgated regulations establishing a five- 8 step sequential evaluation process for the ALJ to follow in a 9 disability case. 20 C.F.R. § 416.920. In the First Step, the ALJ 10 must determine whether the claimant is currently engaged in 11 substantial gainful activity. 12 Second Step, the ALJ must determine whether the claimant has a severe 13 impairment or combination of impairments significantly limiting her 14 from performing basic work activities. 15 so, in the Third Step, the ALJ must determine whether the claimant has 16 an impairment or combination of impairments that meets or equals the 17 requirements of the Listing of Impairments ( Listing ), 20 C.F.R. § 18 404, Subpart P, App. 1. 19 Fourth Step, the ALJ must determine whether the claimant has 20 sufficient residual functional capacity despite the impairment or 21 various limitations to perform her past work. 22 If not, in Step Five, the burden shifts to the Commissioner to show 23 the claimant can perform other work that exists in significant numbers 24 in the national economy. 20 C.F.R. § 416.920(b). If not, in the 20 C.F.R. § 416.920(c). 20 C.F.R. § 416.920(d). If If not, in the 20 C.F.R. § 416.920(f). 20 C.F.R. § 416.920(g). 25 26 Moreover, where there is evidence of a mental impairment that may 27 prevent a claimant from working, the Commissioner has supplemented the 28 five-step sequential evaluation process with additional regulations 9 1 addressing mental impairments. Maier v. Comm r of the Soc. Sec. 2 Admin., 154 F.3d 913, 914 (9th Cir. 1998) (per curiam). 3 ALJ must determine the presence or absence of certain medical findings 4 relevant to the ability to work. 5 when the claimant establishes these medical findings, the ALJ must 6 rate the degree of functional loss resulting from the impairment by 7 considering four areas of function: (a) activities of daily living; 8 (b) social functioning; (c) concentration, persistence, or pace; and 9 (d) episodes of decompensation. First, the 20 C.F.R. § 416.920a(b)(1). 20 C.F.R. § 416.920a(c)(2-4). Second, Third, 10 after rating the degree of loss, the ALJ must determine whether the 11 claimant has a severe mental impairment. 12 Fourth, when a mental impairment is found to be severe, the ALJ must 13 determine if it meets or equals a Listing. 14 416.920a(d)(2). 15 perform a residual functional capacity assessment, and the ALJ s 16 decision must incorporate the pertinent findings and conclusions 17 regarding plaintiff s mental impairment, including a specific finding 18 as to the degree of limitation in each of the functional areas 19 described in [§ 416.920a(c)(3)]. 20 C.F.R. § 416.920a(d). 20 C.F.R. § Finally, if a Listing is not met, the ALJ must then 20 C.F.R. § 416.920a(d)(3), (e)(2). 20 21 Applying the five-step sequential evaluation process, the ALJ 22 found plaintiff has not engaged in substantial gainful activity since 23 her alleged onset date, September 1, 2001. 24 found plaintiff has the severe impairments of chronic migraine 25 headaches, gastroesophageal reflux disease, a back disorder, a neck 26 disorder, a thyroid disorder, and post-traumatic stress disorder (Step 27 Two); however, she does not have an impairment or combination of 28 impairments that meets or equals a Listing. 10 (Step One). The ALJ then (Step Three). The ALJ 1 next determined plaintiff cannot perform her past relevant work. 2 (Step Four). 3 significant number of jobs in the national economy; therefore, she is 4 not disabled. Finally, the ALJ found plaintiff can perform a (Step Five). 5 6 7 IV A claimant s residual functional capacity ( RFC ) is what she can 8 still do despite her physical, mental, nonexertional, and other 9 limitations. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); 10 Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 11 Here, the ALJ found: 12 13 [Plaintiff] has the [RFC] to perform a significant range of 14 light work.[11] 15 carry 10 pounds frequently and 20 pounds occasionally, and 16 to sit for 6 hours in an 8-hour workday and stand and/or 17 walk for a total of 6 [hours] as well. 18 a ramp or stairs frequently, but not a ladder, rope, or 19 scaffolding. Specifically, [she] is able to lift and She is able to climb She is able to balance, bend, stoop, crouch, 20 21 22 23 24 25 26 27 28 11 Under Social Security regulations, [l]ight work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. 20 C.F.R. § 416.967(b). [T]he full range of light work requires standing or walking for up to two-thirds of the workday. Gallant v. Heckler, 753 F.2d 1450, 1454 n.1 (9th Cir. 1984); SSR 83-10, 1983 WL 31251, *6. 11 1 and kneel or squat frequently; and to crawl occasionally. 2 The [plaintiff] is limited to even moderate exposure to 3 hazards such as dangerous or fast-moving machinery and 4 unprotected heights. 5 exposure to fumes, odors, gases, and chemicals. 6 [plaintiff] should avoid all exposure to extreme noise and 7 bright lighting. 8 equipment. 9 and remember moderately detailed instructions, and [she] can She is also limited to even moderate The She cannot operate motorized vehicles or Mentally, the [plaintiff] is able to understand 10 carry out moderately complex tasks. She cannot work at a 11 production-rate pace or perform work that requires hyper- 12 vigilance. 13 coworkers, supervisors, and the public. 14 any responsibility for coworkers or safety operations. She can frequently interact appropriately with She cannot assume 15 16 A.R. 15 (footnote added). However, plaintiff contends the ALJ s RFC 17 and Step Five determinations are not supported by substantial evidence 18 because, among other reasons, the ALJ did not properly assess her 19 mental limitations, including the opinions of Dr. Fredman and Dr. 20 Ching. The plaintiff is correct. 21 22 The ALJ must provide clear and convincing reasons for 23 rejecting the uncontradicted opinion of an examining physician[,] 24 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Widmark v. 25 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006), and [e]ven if 26 contradicted by another doctor, the opinion of an examining doctor can 27 be rejected only for specific and legitimate reasons that are 28 supported by substantial evidence in the record. 12 Regennitter v. 1 Comm r of the Soc. Sec. Admin., 166 F.3d 1294, 1298-99 (9th Cir. 2 1999); Ryan v. Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 3 2008). 4 nonexamining physician by reference to specific evidence in the 5 medical record. 6 1998). Similarly, the ALJ may only reject the opinion of a Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 7 8 Here, in assessing plaintiff s limitations, Dr. Fredman opined 9 plaintiff is markedly limited in her ability to interact with the 10 public, co-workers and supervisors, meaning plaintiff cannot usefully 11 perform or sustain the activity. 12 Ching opined plaintiff is markedly limited in her ability to 13 interact appropriately with the general public, and requires non- 14 public work. 15 ALJ found plaintiff retains the RFC to frequently interact 16 appropriately with coworkers, supervisors, and the public[,] A.R. 15, 17 without explaining why he was disagreeing with Drs. Fredman and Ching. 18 The ALJ s failure to provide any explanation for rejecting the 19 opinions of Drs. Fredman and Ching is clear legal error. 20 v. Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 2007); Stoner v. Comm r 21 of Soc. Sec., 239 Fed. Appx. 359, 360 (9th Cir. 2007).12 A.R. 135-36. A.R. 122, 130-31. Similarly, Dr. Contrary to these opinions, however, the Lingenfelter 22 23 Because the ALJ failed to provide any reasons for rejecting Dr. 24 Fredman s opinions, this Court credits them as a matter of law. 25 Widmark, 454 F.3d at 1069; Edlund v. Massanari, 253 F.3d 1152, 1160 26 (9th Cir. 2001). As such, and given the ALJ s legal error, the ALJ s 27 28 12 See Fed. R. App. P. 32.1(a); Ninth Circuit Rule 36-3(b). 13 1 Step Five determination that plaintiff can perform a significant 2 number of jobs in the national economy, which was based on the 3 testimony of vocational expert ( VE ) Corrine Porter in response to a 4 hypothetical question stating, in part, plaintiff [i]s frequently 5 able to interact with co-workers and with supervisors and the public, 6 A.R. 19-20, 458-61, is not supported by substantial evidence. 7 Carmickle, 533 F.3d at 1166 ( [B]ecause the ALJ erred in excluding 8 some of [the claimant s] limitations from the RFC assessment . . . , 9 and thus from the VE hypothetical, the VE s testimony has no See 10 evidentiary value. (citations omitted)); Edlund, 253 F.3d at 1160 11 (ALJ erred in not including limitations from claimant s mental 12 impairment in hypothetical question posed to vocational expert). 13 14 15 V When the Commissioner s decision is not supported by substantial 16 evidence, the Court has authority to affirm, modify, or reverse the 17 Commissioner s decision with or without remanding the cause for 18 rehearing. 19 1076 (9th Cir. 2002). 20 administrative determination, the proper course, except in rare 21 circumstances, is to remand to the agency for additional investigation 22 or explanation. 23 2004) (citations omitted); Moisa v. Barnhart, 367 F.3d 882, 886 (9th 24 Cir. 2004). 25 has failed to address a claimant s limitations as established by 26 improperly discredited evidence, [the Ninth Circuit] consistently 27 ha[s] remanded for further proceedings rather than payment of 28 benefits. 42 U.S.C. § 405(g); McCartey v. Massanari, 298 F.3d 1072, Generally when a court . . . reverses an Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. In cases where the testimony of the vocational expert Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir.), cert. 14 1 denied, 531 U.S. 1038 (2000); Vasquez v. Astrue, __ F.3d __, 2008 WL 2 4791860, *7 (9th Cir. (Cal.)). 3 here.13 Therefore, remand is appropriate 4 5 6 ORDER IT IS ORDERED that: (1) plaintiff s request for relief is 7 granted; and (2) the Commissioner s decision is reversed, and the 8 action is remanded to the Social Security Administration for further 9 proceedings consistent with this Opinion and Order, pursuant to 10 sentence four of 42 U.S.C. § 405(g), and Judgment shall be entered 11 accordingly. 12 13 DATE: November 26, 2008 14 /S/ Rosalyn M. Chapman ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 13 27 Having reached this conclusion, the Court need not address the other claims plaintiff makes, none of which warrant greater relief than herein granted. 28 R&R-MDO\07-1045.mdo 11/26/08 26 15

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