Carolyn Haly v. Michael J Astrue, No. 5:2008cv00672 - Document 20 (C.D. Cal. 2009)

Court Description: OPINION AND ORDER 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. (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 CAROLYN L. HALY, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) No. EDCV 08-0672-RC OPINION AND ORDER 17 18 Plaintiff Carolyn L. Haly filed a complaint on May 22, 2008, 19 seeking review of the Commissioner s decision denying her application 20 for disability benefits, and on October 20, 2008, the Commissioner 21 answered the complaint. 22 December 15, 2008. The parties filed a joint stipulation on 23 24 BACKGROUND 25 I 26 On December 19, 2005, plaintiff applied for disability benefits 27 under Title II of the Social Security Act ( Act ), 42 U.S.C. § 423, 28 claiming an inability to work since January 26, 2004, due to spinal 1 cysts, bulging discs, and depression.1 2 Record ( A.R. ) 59-61, 97. 3 denied on May 19, 2006, and was denied again on December 21, 2006, 4 following reconsideration. 5 an administrative hearing, which was held before Administrative Law 6 Judge Jay E. Levine ( the ALJ ) on January 24, 2008. 7 On March 8, 2008, the ALJ issued a decision finding plaintiff is not 8 disabled. 9 Appeals Council, which denied review on May 1, 2008. A.R. 6-17. Certified Administrative The plaintiff s application was initially A.R. 40-51. The plaintiff then requested A.R. 35, 515-45. The plaintiff appealed this decision to the A.R. 2-5. 10 11 II 12 The plaintiff, who was born on October 7, 1950, is currently 58 13 years old. A.R. 59. She has a twelfth-grade education, previously 14 worked as a paramedical examiner and customer service representative, 15 and was a medical services technician in the military. 16 97-98, 102, 132-33, 138. A.R. 88-95, 17 18 In 2000 and 2001, plaintiff was hospitalized for mental 19 problems.2 20 hospitalized at Redlands Community Hospital, where she was diagnosed 21 with type-II bipolar disorder and her Global Assessment of Functioning 22 // 23 // Between October 29 and November 5, 2000, plaintiff was 24 1 25 26 27 28 Plaintiff s previous application for disability benefits was denied on September 16, 2005. A.R. 52-56. 2 Although plaintiff has both physical and mental complaints, she challenges only the ALJ s assessment of her mental condition; therefore, the Court addresses only those medical records related to plaintiff s mental state. 2 1 ( GAF ) was determined to be 30 upon admission and 65 upon discharge.3 2 A.R. 311-26. 3 at Community Hospital of San Bernardino with complaints of depression 4 and suicidal ideation, she was diagnosed with recurrent major 5 depressive disorder superimposed on dysthymic disorder, and her GAF 6 was determined to be 35 upon admission4 and 65 upon discharge. 7 236-45. Between March 9 and 12, 2001, plaintiff was hospitalized A.R. 8 9 On August 30, 2005, Linda M. Smith, M.D., a psychiatrist, 10 examined plaintiff, diagnosed her with a dysthymic disorder, and 11 determined her GAF was 66. 12 is mildly impaired in her ability to interact appropriately with 13 supervisors, co-workers, or the public, but is otherwise not impaired. 14 A.R. 383-84. A.R. 379-84. Dr. Smith opined plaintiff On May 5, 2006, Dr. Smith re-examined plaintiff, 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 A GAF of 30 means [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) ( DSM-IV-TR ). However, a GAF of 61-70 indicates [s]ome mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Id. 4 A GAF of 35 indicates [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). DSM-IV-TR at 34. 3 1 diagnosed her with an unspecified depressive disorder, and determined 2 plaintiff s GAF was 61. 3 plaintiff is mildly impaired in her ability to interact 4 appropriately with supervisors, co-workers, or the public, but is 5 otherwise not impaired. A.R. 222-27. Dr. Smith again opined A.R. 227. 6 7 On December 10, 2006, Sohini P. Parikh, M.D., a psychiatrist, 8 examined plaintiff, diagnosed her with a mood disorder because of 9 medical condition, and determined her GAF was 70. A.R. 169-75. Dr. 10 Parikh concluded that: from a psychiatric standpoint, the 11 [plaintiff] does not seem to have any impairment in the ability to 12 reason and make social, occupational, and personal adjustments[;] 13 . . . [she] is able to understand, carryout, and remember simple 14 instructions[;] [she] can follow complex instructions[;] [she] should 15 be able to interact appropriately with coworkers[;] [and][she] should 16 be able to respond appropriately to the usual work settings in such 17 matters as attendance and would not have a hard time adjusting to 18 changes in the work routine. A.R. 174. 19 20 Since January 11, 2007, plaintiff has received treatment at Loma 21 Linda Veterans Administration Medical Center ( VA ). A.R. 141-68. 22 January 11, 2007, Alma A. Gonzaga, M.D., diagnosed plaintiff with 23 depression and prescribed Celexa5 for her. 24 February 27, 2007, Joshua M. Buley, Psy.D., a psychologist, examined A.R. 165-66. On 25 26 5 27 28 Celexa, also called citalopram, is used to treat major depression a stubbornly low mood that persists nearly every day for at least 2 weeks and interferes with everyday living. The PDR Family Guide to Prescription Drugs, 126, 132 (8th ed. 2000). 4 On 1 plaintiff and diagnosed her as having a dysthymic disorder and a 2 history of severe recurrent major depressive disorder, without 3 psychotic features, and determined plaintiff s GAF was 45.6 4 55. 5 which includes several psychiatric hospitalizations and three suicide 6 attempts, most recently on April 18, 2005, when plaintiff overdosed on 7 a bottle of Vicodin. 8 examined plaintiff, diagnosed her with a major depressive disorder, 9 and determined plaintiff s GAF was 45. A.R. 148- Dr. Buley noted plaintiff s significant mental health history, A.R. 149. On June 18, 2007, Edward Verde, M.D., A.R. 142-43. Dr. Verde noted 10 plaintiff complained of side effects of sedation and jitteriness from 11 Celexa, and he changed plaintiff s medication to Lexapro.7 A.R. 142. 12 13 DISCUSSION 14 III 15 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 16 review the decision denying plaintiff disability benefits to determine 17 if his findings are supported by substantial evidence and whether the 18 Commissioner used the proper legal standards in reaching his decision. 19 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Vernoff v. 20 Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). 21 22 The claimant is disabled for the purpose of receiving benefits 23 6 24 25 26 27 28 A GAF of 45 means that the plaintiff 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). DSM-IV-TR at 34. 7 Lexapro, also called escitalopram, is indicated for the treatment of major depressive disorder and generalized anxiety disorder. Physician s Desk Reference, 1175 (63rd ed. 2009). 5 1 under the Act if she is unable to engage in any substantial gainful 2 activity due to an impairment which has lasted, or is expected to 3 last, for a continuous period of at least twelve months. 4 § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). 5 burden of establishing a prima facie case of disability. 6 Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 7 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). 42 U.S.C. The claimant bears the Roberts v. 8 9 The Commissioner has promulgated regulations establishing a five- 10 step sequential evaluation process for the ALJ to follow in a 11 disability case. 12 must determine whether the claimant is currently engaged in 13 substantial gainful activity. 14 the Second Step, the ALJ must determine whether the claimant has a 15 severe impairment or combination of impairments significantly limiting 16 her from performing basic work activities. 17 If so, in the Third Step, the ALJ must determine whether the claimant 18 has an impairment or combination of impairments that meets or equals 19 the requirements of the Listing of Impairments ( Listing ), 20 C.F.R. 20 § 404, Subpart P, App. 1. 21 Fourth Step, the ALJ must determine whether the claimant has suffi- 22 cient residual functional capacity despite the impairment or various 23 limitations to perform her past work. 24 not, in Step Five, the burden shifts to the Commissioner to show the 25 claimant can perform other work that exists in significant numbers in 26 the national economy. 27 is evidence of a mental impairment that may prevent a claimant from 28 working, the Commissioner has supplemented the five-step sequential 20 C.F.R. § 404.1520. In the First Step, the ALJ 20 C.F.R. § 404.1520(b). 20 C.F.R. § 404.1520(c). 20 C.F.R. § 404.1520(d). If not, in the 20 C.F.R. § 404.1520(f). 20 C.F.R. § 404.1520(g). 6 If not, in If Moreover, where there 1 evaluation process with additional regulations addressing mental 2 impairments.8 3 914 (9th Cir. 1998) (per curiam). Maier v. Comm r of the Soc. Sec. Admin., 154 F.3d 913, 4 5 Applying the five-step sequential evaluation process, the ALJ 6 found plaintiff has not engaged in substantial gainful activity since 7 her alleged disability onset date of January 26, 2004. 8 The ALJ then found plaintiff has the severe impairments of: 9 degenerative disc disease, status post-spinal fusion, and obesity; (Step One). 10 however, she does not have a severe mental impairment. (Step Two). 11 The ALJ also found plaintiff does not have an impairment or 12 combination of impairments that meets or equals a Listing. 13 Three). 14 past relevant work as a customer service representative; therefore, 15 she is not disabled. (Step Finally, the ALJ determined plaintiff is able to perform her (Step Four). 16 17 18 IV The Step Two inquiry is a de minimis screening device to dispose Smolen, 80 F.3d at 1290; Webb v. Barnhart, 19 of groundless claims. 20 433 F.3d 683, 687 (9th Cir. 2005). 21 at Step Two of the sequential evaluation process increases the 22 efficiency and reliability of the evaluation process by identifying at 23 an early stage those claimants whose medical impairments are so slight 24 that it is unlikely they would be found to be disabled even if their 25 age, education, and experience were taken into account. Including a severity requirement Bowen v. 26 27 28 8 These regulations require the ALJ to determine the presence or absence of certain medical findings relevant to the ability to work. See 20 C.F.R. § 404.1520a. 7 1 Yuckert, 482 U.S. 137, 153, 107 S. Ct. 2287, 2297, 96 L. Ed. 2d 119 2 (1987). 3 requirement violates the Act by denying benefits to claimants who meet 4 the statutory definition of disabled. 5 949 (9th Cir. 1994). However, an overly stringent application of the severity Corrao v. Shalala, 20 F.3d 943, 6 7 A severe impairment or combination of impairments within the 8 meaning of Step Two exists when there is more than a minimal effect on 9 an individual s ability to do basic work activities. Webb, 433 F.3d 10 at 686; Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); see 11 also 20 C.F.R. § 416.921(a) ( An impairment or combination of 12 impairments is not severe if it does not significantly limit [a 13 person s] physical or mental ability to do basic work activities. ). 14 Basic work activities are the abilities and aptitudes necessary to do 15 most jobs, including physical functions such as walking, standing, 16 sitting, lifting, pushing, pulling, reaching, carrying or handling, as 17 well as the capacity for seeing, hearing and speaking, understanding, 18 carrying out, and remembering simple instructions, use of judgment, 19 responding appropriately to supervision, co-workers and usual work 20 situations, and dealing with changes in a routine work setting. 21 20 C.F.R. § 416.921(b); Webb, 433 F.3d at 686. 22 23 Here, the ALJ determined at Step Two that plaintiff does not have 24 a severe mental impairment. However, plaintiff contends the ALJ s 25 finding is not supported by substantial evidence because the ALJ 26 failed to properly consider the opinions of her treating physicians, 27 // 28 // 8 1 Drs. Buley and Verde.9 The plaintiff is correct. 2 3 The medical opinions of treating physicians are entitled to 4 special weight because the treating physician is employed to cure and 5 has a greater opportunity to know and observe the patient as an 6 individual. 7 Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 8 1999). 9 for rejecting the uncontroverted opinion of a treating physician, Ryan Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); Therefore, the ALJ must provide clear and convincing reasons 10 v. Comm r of the Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 11 2008); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998), and 12 [e]ven if [a] treating doctor s opinion is contradicted by another 13 doctor, the ALJ may not reject this opinion without providing 14 specific and legitimate reasons supported by substantial evidence in 15 the record. 16 533 F.3d 1035, 1041 (9th Cir. 2008). Reddick, 157 F.3d at 725; Tommasetti v. Astrue, 17 18 Here, the ALJ erroneously determined that the medical opinions of 19 Drs. Buley and Verde supported his Step Two finding that plaintiff 20 does not have a severe mental impairment, A.R. 12, 16, without 21 explaining, or rejecting, the opinions of both Dr. Buley and Dr. Verde 22 that plaintiff s GAF was 45 on two occasions in 2007. 23 153. See A.R. 143, Since a GAF score of 45 indicates [s]erious symptoms, the ALJ 24 9 25 26 27 28 The parties agree Drs. Buley and Verde are plaintiff s treating VA doctors, see Jt. Stip. at 3:1-14:4; therefore, for purposes of this opinion only, the Court considers their medical opinions to be opinions by treating sources. Cf. Benton v. Barnhart, 331 F.3d 1030, 1035-40 (9th Cir. 2003). (Even if both doctors are considered examining physicians, the result would be the same.) 9 1 must discuss it when, as here, he has not provided any rationale for 2 otherwise rejecting a treating physician s opinion of a claimant s 3 overall mental functioning, and such opinion contradicts the ALJ s 4 Step Two finding that the claimant does not have a severe mental 5 impairment. 6 tion of claimant s GAF of 49 could support finding claimant has severe 7 mental impairment); McCloud v. Barnhart, 166 Fed. Appx. 410, 418 (11th 8 Cir. 2006) (per curiam) (Unpublished) ( We are unable to determine 9 from the record what weight the ALJ placed on the GAF score of 45; 10 therefore, we reject the Commissioner s argument that any error was 11 harmless. 12 impairments, the ALJ should determine what, if any, weight to place on 13 the score. ); Lee v. Barnhart, 117 Fed. Appx. 674, 678 (10th Cir. 14 2004) (Unpublished) ( A GAF score of 50 or less . . . does suggest an 15 inability to keep a job. 16 two, the GAF score should not have been ignored. (citation omitted)); 17 Bennett v. Barnhart, 264 F. Supp. 2d 238, 255 (W.D. Pa. 2003) 18 (Contrary to ALJ s Step Two determination, a GAF score of 55 to 60 19 suggests . . . a mental impairment that is severe in nature. ); 20 Roach v. Astrue, 2009 WL 2407961, *4 (C.D. Cal.) (ALJ erred in failing 21 to consider physician s opinion that claimant had GAF of 47, which 22 contradicted ALJ s Step Two finding claimant did not have severe 23 mental impairment); Rodriguez v. Astrue, 2009 WL 1586529, *2 (C.D. 24 Cal.) ( [T]he ALJ erred in his Step Two determination by failing to 25 properly consider the treating clinician s . . . opinion that [the 26 claimant] suffered from a severe mental impairment, as evidenced by 27 the clinician s rating of [the claimant s GAF] at 50. ). 28 the ALJ s Step Two determination that plaintiff does not have a severe See, e.g., Vasquez, 572 F.3d at 596 (doctor s determina- With the knowledge that a GAF score of 45 reflects severe In a case like this one, decided at step 10 Therefore, 1 mental impairment is not supported by substantial evidence. 2 V 3 4 When the ALJ s decision is not supported by substantial evidence, 5 the Court has the authority to affirm, modify, or reverse the decision 6 with or without remanding the cause for rehearing. 7 405(g); McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). 8 Generally, the proper course, except in rare circumstances, is to 9 remand to the agency for additional investigation or explanation. 42 U.S.C. § 10 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Moisa v. 11 Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). 12 appropriate so the ALJ can properly assess the medical evidence and 13 determine whether plaintiff has a severe mental impairment and is 14 disabled.10 Here, remand is Vasquez, 572 F.3d at 597; Webb, 433 F.3d at 688. 15 16 ORDER 17 IT IS ORDERED that: (1) plaintiff s request for relief is 18 granted; and (2) the Commissioner s decision is reversed, and the 19 action is remanded to the Social Security Administration for further 20 proceedings consistent with this Opinion and Order, pursuant to 21 sentence four of 42 U.S.C. § 405(g), and Judgment shall be entered 22 accordingly. 23 DATE: August 27, 2009 24 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 25 10 26 27 28 Having reached this conclusion, it is unnecessary to reach the other issues plaintiff raises, none of which will provide plaintiff any further relief than herein granted. R&R-MDO\08-0672.mdo 8/27/09 11

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