Judith Jimenez v. Michael J Astrue, No. 5:2008cv01298 - Document 18 (C.D. Cal. 2009)

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. (dhl)

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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 JUDITH JIMENEZ, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) _______________________________) NO. EDCV 08-01298 SS MEMORANDUM DECISION AND ORDER 17 18 INTRODUCTION 19 20 Judith Jimenez ( Plaintiff ) brings this action seeking to overturn 21 the decision of the Commissioner of the Social Security Administration 22 (hereinafter the Commissioner or the Agency ) denying her application 23 for Supplemental Security Income ( SSI ). 24 pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned 25 United States Magistrate Judge. 26 parties Joint Stipulation ( Jt. Stip. ) filed on July 14, 2009. 27 the reasons stated below, the decision of the Commissioner is REVERSED 28 and REMANDED for further proceedings. The parties consented, This matter is before the Court on the For PROCEDURAL HISTORY 1 2 Plaintiff filed an application for SSI on February 11, 2004. 3 (AR 4 116-118). Plaintiff alleged a disability onset date of July 1, 2003. 5 (AR 116). The Commissioner denied benefits on May 3, 2004. 6 107). 7 2004. 8 reconsideration on October 14, 2004. 9 hearing before an administrative law judge ( ALJ ) on October 25, 2004. 10 (AR 103- Plaintiff submitted a request for reconsideration on June 16, (AR 109). The Commissioner denied Plaintiff s request for (AR 102). Plaintiff requested a (AR 66; 110-11). 11 Plaintiff s hearing proceeded before ALJ F. Keith Varni on April 12 13 11, 2007. (AR 68-88). ALJ Varni issued an unfavorable decision on 14 April 24, 2007. 15 Council on June 12, 2007. 16 case on July 30, 2007. (AR 32-34).1 Plaintiff s new hearing proceeded 17 before ALJ Varni on April 3, 2008. (AR 89-100). 18 unfavorable decision on May 10, 2008. 19 review by the Appeals Council on June 4, 2008. 20 Council denied Plaintiff s request for review on July 21, 2008. 21 7). 22 \\ 23 \\ 24 \\ 25 \\ (AR 40-47). Plaintiff requested review by the Appeals (AR 35). The Appeals Council remanded the (AR 13-23). ALJ Varni issued an Plaintiff requested (AR 8). The Appeals (AR 5- Plaintiff commenced the instant action on September 19, 2008. 26 27 28 1 The Appeals Council remanded the case because the ALJ failed to address evidence indicating Plaintiff s heart condition rendered her unable to perform sedentary work on a consistent basis. (AR 33). 2 1 FACTUAL HISTORY 2 3 A. Generally 4 5 Plaintiff was born on March 6, 1969. (AR 116). Plaintiff claims 6 disability as a result of [irregular] heart beat, depression, stress, 7 chest pain, high [blood sugar] levels, blur[r]ed vision, [weakness], . 8 . . enlarged liver, [and] enlarge[d] heart. (AR 132). 9 10 B. Relevant Medical History 11 12 1. Mental Health Condition 13 James A. Grishom, M.F.T.2, R.N.3, assessed Plaintiff on April 29, 14 15 2004. (AR 350-51). Mr. Grishom diagnosed Plaintiff with non-specific 16 depressive disorder and post-traumatic stress disorder. 17 Grishom noted that Plaintiff had mild suicidal ideation. 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 27 2 A M.F.T. is a Marriage and Family Therapist. 28 3 A R.N. is a Registered Nurse. 3 (AR 350). (Id.). Mr. 1 On August 11, 2004, J.N. Allison, M.D., indicated that Plaintiff 2 reported seeing people who are not there [and] hearing noises when 3 nobody 4 experienced 5 twenty milligrams of Lexapro4, zero to five milligrams of Risperdal5 and 6 fifty milligrams of Trazodone6. is there. (AR 348). crying spells. Dr. Allison noted that Plaintiff (Id.). Plaintiff was prescribed (Id.) 7 8 9 On September 8, 2004, Dr. Allison found that Plaintiff remain[ed] depressed. (Id.). (Id.) Dr. Allison indicated that Plaintiff suffered from 10 insomnia. Dr. Allison continued Plaintiff on the same dosage of 11 Lexapro and Risperdal, but increased the Trazodone to one hundred 12 milligrams. (AR 348). 13 14 On October 6, 2004, Dr. Allison indicated that Plaintiff state[d] 15 [she is] less depressed and noted that Plaintiff s crying spells had 16 become less frequent. 17 thirty milligrams of Lexapro and the same dosages of Risperdal and 18 Trazodone. (AR 347). Dr. Allison prescribed Plaintiff (Id.). 19 20 21 22 23 24 25 26 27 28 4 Lexapro is a trade name for Escitalopram, which is prescribed to treat depression and generalized anxiety disorder. See http://www.nlm.nih.gov/medlineplus/druginfo/meds/a603005.html (last accessed July 30, 2009). 5 Risperdal is a trade name for Risperidone, which is an antipsychotic drug prescribed to treat symptoms of schizophrenia, mania and other behavioral problems. See http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a694015.html (last accessed July 30, 2009). 6 Trazodone is prescribed to treat depression. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a681038.html accessed July 30, 2009). 4 See (last 1 Records on October 20, 2004 and November 10, 2004 indicate that 2 Plaintiff did not appear for her psychiatric appointments. 3 Dr. Allison indicated that Plaintiff s case was closed on December 23, 4 2004. (AR 346). (Id.). 5 John Lavey, L.C.S.W.7, treated Plaintiff on February 5, 2007. 6 7 336-38). 8 swings, 9 Plaintiff s current mood was depressed. (AR Mr. Lavey found that Plaintiff suffered from paranoia, mood and suicidal ideation. (AR 337). Mr. (Id.). Lavey indicated Mr. Lavey found that 10 Plaintiff had a Global Assessment of Functioning ( GAF ) of 50. 11 336). 12 disorder and post-traumatic stress disorder. (AR Mr. Lavey diagnosed Plaintiff with non-specific depressive (AR 338). 13 2. 14 Consultative Psychiatric Evaluation 15 16 Kent Jordan, M.D., a Diplomate of the American Board of Psychiatry 17 and Neurology, evaluated Plaintiff for the Disability Determination 18 Service ( DDS ) on December 1, 2007. (AR 314-20). Dr. Jordan diagnosed 19 Plaintiff with polysubstance abuse and dependence, amphetamine-induced 20 auditory 21 manipulative trends. 22 cannot responsibly handle funds because of her substance abuse history 23 and also manipulative personality. 24 \\ 25 \\ 26 \\ and visual hallucinations (AR 318). and personality 7 with Dr. Jordan concluded that [Plaintiff] (AR 319). 27 28 disorder A L.C.S.W. is a Licensed Clinical Social Worker. 5 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 1 2 3 To qualify for disability benefits, a claimant must demonstrate a 4 medically determinable physical or mental impairment that prevents him 5 from engaging in substantial gainful activity8 and that is expected to 6 result in death or to last for a continuous period of at least twelve 7 months. 8 42 U.S.C. § 423(d)(1)(A)). 9 incapable of performing the work he previously performed and incapable 10 of performing any other substantial gainful employment that exists in 11 the national economy. 12 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. 13 14 15 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 16 17 (1) Is the claimant presently engaged in substantial gainful 18 activity? 19 If not, proceed to step two. 20 (2) Is the If so, the claimant is found not disabled. claimant s impairment 21 claimant is found not disabled. 22 severe? If not, the three. (3) 23 Does the claimant s If so, proceed to step impairment meet or equal the requirements of any impairment listed at 20 C.F.R. Part 24 25 26 27 28 8 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1520, 416.910. 6 1 404, Subpart P, Appendix 1? 2 found disabled. 3 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing her past work? 4 so, the claimant is found not disabled. 5 If to step five. 6 (5) If not, proceed Is the claimant able to do any other work? 7 claimant is found disabled. 8 If not, the found not disabled. If so, the claimant is 9 10 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 11 949, 12 404.1520(b)-(g)(1), 416.920(b)-(g)(1). 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. §§ 13 14 The claimant has the burden of proof at steps one through four, and 15 the Commissioner has the burden of proof at step five. Bustamante, 262 16 F.3d at 953-54. 17 establishing an inability to perform the past work, the Commissioner 18 must show that the claimant can perform some other work that exists in 19 significant numbers in the national economy, taking into account the 20 claimant s 21 experience. 22 Commissioner may do so by the testimony of a VE or by reference to the 23 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart 24 P, Appendix 2 (commonly known as the Grids ). 25 F.3d 1157, 1162 (9th Cir. 2001). 26 (strength-related) 27 inapplicable and the ALJ must take the testimony of a VE. 28 Apfel, 216 F.3d 864, 869 (9th Cir. 2000). If, at step four, the claimant meets his burden of residual functional capacity, age, education and Tackett, 180 F.3d at 1100; 20 C.F.R. § 416.920(g)(1). and work The Osenbrock v. Apfel, 240 When a claimant has both exertional nonexertional 7 limitations, the Grids are Moore v. 1 THE ALJ S DECISION 2 3 4 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since January 23, 2004. (AR 15). 5 6 At step two, the ALJ found that Plaintiff suffered from the 7 following severe combination of impairments: insulin-dependent diabetes 8 mellitus, hypertension with related history of enlarged heart and 9 obesity. (AR 15). The ALJ found that: 10 11 [Plaintiff s] medically determinable mental impairments 12 of 13 disorder with manipulative trends, considered singly and in 14 combination, do not cause more than minimal limitation in 15 [Plaintiff s] ability to perform basic mental work activities 16 and are therefore nonsevere. polysubstance abuse and dependence with personality 17 18 (AR 16) 19 20 At step three, the ALJ found that Plaintiff did not have an 21 impairment or combination of impairments that met or medically equaled 22 one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 23 1. (Id.). 24 25 At step four, the ALJ found that Plaintiff had no past relevant 26 work and thus whether Plaintiff would be capable of performing past work 27 could not be determined. (AR 22). 28 8 1 At step five, the ALJ determined that Plaintiff could perform the 2 jobs of hand packager, assembler and table worker. (AR 22-23). The ALJ 3 posed the following hypothetical to vocational expert ( VE ) Joseph 4 Mooney: 5 6 [C]onsider a person of [Plaintiff s] background, her 7 age, education and work experience and I would like you to 8 consider her residual functional capacity ( RFC ) that was 9 assessed by the specialist in internal medicine who saw 10 [Plaintiff] on December 12 of 2007 . . . [c]onsidering that 11 assessment of functional capacity and reducing the work 12 because of [Plaintiff s] basic lack of past work, to work 13 which is simple, routine, repetitive, and non-public. 14 15 (AR 97-98). 16 17 The VE responded that Plaintiff could perform a broad range of 18 simple jobs like hand packagers . . . a variety of different types of 19 assemblers . . . [and] table workers . . . . (AR 98). 20 21 The ALJ found the following RFC for Plaintiff: 22 23 [T]o perform medium work as defined in 20 CFR 416.967(c) 24 except [Plaintiff] is limited to frequent reaching in all 25 directions, 26 pulling, 27 balancing, 28 stairs. handling, fingering, bilaterally, stooping, [Plaintiff] and she crouching, is limited 9 feeling, is and to limited pushing, to climbing occasional and frequent ramps and kneeling, 1 crawling, 2 [Plaintiff] is able to perform frequent work at unprotected 3 heights, operating a motor vehicle, and vibrations, but she 4 is limited to occasional work around moving mechanical parts, 5 dusts, odors, fumes, pulmonary irritants, extreme cold, and 6 extreme heat. [Plaintiff] is limited to work in moderate 7 (office) noise. [Plaintiff] is able to perform routine, 8 repetitive, nonpublic work tasks. and climbing ladders, ropes, and scaffolds. 9 10 (AR 16). 11 12 Based on this RFC and the VE s response to the hypothetical, the 13 ALJ concluded that Plaintiff was not disabled because she could perform 14 the work as a hand packager, assembler and table worker. (AR 22-23). 15 16 STANDARD OF REVIEW 17 18 Under 42 U.S.C. § 405(g), a district court may review the 19 Commissioner s decision to deny benefits. 20 Commissioner s decision when the ALJ s findings are based on legal error 21 or are not supported by substantial evidence in the record as a whole. 22 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 23 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). The court may set aside the 24 25 Substantial evidence is more than a scintilla, but less than a 26 preponderance. 27 which a reasonable person might accept as adequate to support a 28 conclusion. Id. Reddick, 157 F.3d at 720. It is relevant evidence To determine whether substantial evidence supports 10 1 a finding, the court must consider the record as a whole, weighing 2 both 3 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 4 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 5 reasonably support either affirming or reversing that conclusion, the 6 court may not substitute its judgment for that of the Commissioner. 7 Reddick, 157 F.3d at 720-21. evidence that supports and evidence that detracts from the If the evidence can 8 9 DISCUSSION 10 11 A. The ALJ Erred In His Evaluation Of Plaintiff s Mental Impairment 12 13 Plaintiff contends that the ALJ erred because he failed to 14 consider the severity of [Plaintiff s] mental impairment, which clearly 15 indicates significant ramifications for [Plaintiff s] ability to work. 16 (Jt. Stip. at 13). Plaintiff asserts that the record contains evidence 17 of 18 [Plaintiff s] ability to do basic work activities. 19 This Court agrees. a mental impairment that has more than a minimal effect on (Jt. Stip. at 14). 20 21 The ALJ 22 noted the following regarding Plaintiff s mental impairments: 23 [Plaintiff s] medically determinable mental impairments 24 25 of polysubstance abuse and dependence 26 disorder with manipulative trends, considered singly and in 27 combination, do not cause more than minimal limitation in 28 11 with personality 1 [Plaintiff s] ability to perform basic mental work activities 2 and are therefore nonsevere. 3 4 (AR 16) 5 6 By its own terms, the evaluation at step two is a de minimis test 7 intended to weed out the most minor of impairments. See Bowen v. 8 Yuckert, 482 U.S. 137, 153-154, 107 S. Ct. 2287, 96 L. Ed. 2d 119 9 (1987); Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001)(stating 10 that the step two inquiry is a de minimis screening device to dispose 11 of groundless claims)(quoting Smolen, 80 F.3d at 1290). 12 is not severe only if the evidence establishes a slight abnormality 13 that has no more than a minimal effect on an individuals ability to 14 work. 15 omitted). An impairment Smolen, 80 F.3d at 1290 (internal quotations and citations 16 17 The ALJ here applied more than a de minimis test when he determined 18 that Plaintiff s mental impairment was not severe. Moreover, he failed 19 to follow the Secretary s own regulations governing the evaluation of 20 mental impairments, as described below. 21 22 Where there is evidence of a mental impairment that allegedly 23 prevents the plaintiff from working, the Agency has supplemented the 24 five-step sequential evaluation process with additional regulations.9 25 9 26 27 28 These additional steps are intended to assist the ALJ in determining the severity of mental impairments at steps two and three. The mental RFC assessment used at steps four and five of the evaluation process, on the other hand, require a more detailed assessment. Social Security Ruling 96-8P, 1996 WL 374184 at * 4. 12 1 Maier v. Comm r of the Soc. Sec. Admin., 154 F.3d 913, 914-15 (9th Cir. 2 1998)(citing 20 C.F.R. § 416.920a)(per curiam). 3 determine the presence or absence of certain medical findings relevant 4 to the plaintiff s ability to work. 5 Second, when the plaintiff establishes these medical findings, the ALJ 6 must rate the degree of functional loss resulting from the impairment 7 by considering four areas of function: (a) activities of daily living; 8 (b) social functioning; (c) concentration, persistence, or pace; and (d) 9 episodes of decompensation. First, the ALJ must 20 C.F.R. § 416.920a(b)(1). 20 C.F.R. § 416.920a(c)(2)-(4). 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 in 20 C.F.R. Part 404, Subpart 14 P, Appendix 1. 15 not met, the ALJ must then assess the plaintiff s RFC, and the ALJ s 16 decision must incorporate the pertinent findings and conclusions 17 regarding he plaintiff s mental impairment, including a specific 18 finding 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)(2). 20 C.F.R. § 416.920a(d). Finally, if a listing is 20 C.F.R. § 416.920a(d)(3), (e)(2). 20 21 The regulations describe an impairment as follows: 22 23 A physical or mental impairment must result from anatomical, 24 physiological, or psychological abnormalities which can be 25 shown 26 diagnostic techniques. 27 be established by medical evidence consisting of signs, by medically acceptable clinical and laboratory A physical or mental impairment must 28 13 1 symptoms, and laboratory findings, 2 not only by [a plaintiff s] statements of symptoms. 3 4 20 C.F.R. § 416.908; see also Ukolov v. Barnhart, 420 F.3d 1002, 1005 5 (9th Cir. 2005) (noting that the existence of a medically determinable 6 physical or mental impairment may only be established with objective 7 medical findings) (citing Social Security Ruling 96-4p, 1996 WL 374187 8 at *1-2). 9 10 Here, sufficient evidence existed to satisfy the de minimis test. 11 Mr. Grishom diagnosed Plaintiff with depressive disorder and post- 12 traumatic stress disorder. 13 complained of seeing people who are not there [and] hearing noises when 14 nobody is there and suffered from crying spells. 15 Allison also prescribed Plaintiff with Lexapro, Trazodone and Risperdal, 16 medications for the treatment of mental disorders. 17 found that Plaintiff suffered from paranoia, mood swings, and suicidal 18 ideation. 19 Assessment of Functioning ( GAF ) of 50 and diagnosed her with non- 20 specific depressive disorder and post-traumatic stress disorder. 21 336-38). 22 Plaintiffs manipulative personality made her incapable of managing 23 finances. (AR 337). (AR 350). Dr. Allison noted that Plaintiff (AR 348). (Id.). Dr. Mr. Lavey Mr. Lavey assessed Plaintiff with a Global (AR Dr. Jordan, the consultative psychiatrist, indicated that (AR 319). 24 25 Plaintiff s medical records indicate that she suffered from a 26 mental impairment that interfered with and affected her ability to 27 function. 28 that has no more than a minimal effect on an individuals ability to Plaintiff s mental impairment is not a slight abnormality 14 1 work. Smolen, 80 F.3d at 1290 (internal quotations and citations 2 omitted). 3 was erroneous and in conflict with the record. 4 considered harmless as it impacted the remainder of the five-step 5 process. The ALJ s conclusion at step-two of the evaluation process Moreover, it cannot be Remand is required. 6 7 8 B. Because The ALJ Erred At Step Two, His Finding That Plaintiff Can Perform The Jobs Of Hand Packager And Assembler Are Error 9 10 Plaintiff argues that the ALJ erred by determining that Plaintiff 11 could perform work that did not comport with her RFC. (Jt. Stip. at 3). 12 Specifically, Plaintiff asserts that the Dictionary of Occupation Titles 13 ( DOT ) indicates that the occupation of hand packager and assembler 14 require an employee to [work in] a loud working environment. 15 (emphasis in original). 16 restricted Plaintiff to an environment with moderate noise, (AR 16), 17 determining 18 assembler was error. Plaintiff (Id.) Plaintiff contends that because the ALJ could perform work (Jt. Stip. at 4). as a hand packager This Court agrees. 19 20 The ALJ assessed the following RFC for Plaintiff: 21 22 [T]o perform medium work as defined in 20 CFR 416.967(c) 23 except [Plaintiff] is limited to frequent reaching in all 24 directions, 25 pulling, 26 balancing, 27 stairs. 28 crawling, handling, fingering, bilaterally, stooping, [Plaintiff] and and she crouching, is climbing limited ladders, 15 feeling, is pushing, limited and to to climbing occasional ropes, and and frequent ramps and kneeling, scaffolds. and 1 [Plaintiff] is able to perform frequent work at unprotected 2 heights, operating a motor vehicle, and vibrations, but she 3 is limited to occasional work around moving mechanical parts, 4 dusts, odors, fumes, pulmonary irritants, extreme cold, and 5 extreme heat. [Plaintiff] is limited to work in moderate 6 (office) noise. [Plaintiff] is able to perform routine, 7 repetitive, nonpublic work tasks. 8 9 (AR 16). 10 11 Residual functional capacity is what a claimant can still do 12 despite existing exertional and nonexertional limitations. 13 Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 14 in relevant part: "RFC [residual functional capacity] is an assessment 15 of an individual's ability to do sustained work-related physical and 16 mental activities in a work setting on a regular and continuing basis. 17 SSR 96-8p, 1996 WL 374184, at *1 (SSA July 2, 1996). At Step 5, [a] 18 regular and continuing basis' means 8 hours a day, for 5 days a week, 19 or an equivalent work schedule. Id. at *2 (footnote omitted). Cooper v. SSR 96-8p provides 20 Here, the ALJ erroneously determined that Plaintiff did not have 21 22 a severe mental impairment. This 23 determination because the ALJ failed to include all of Plaintiff s 24 severe impairments in the RFC assessment. 25 assessment is incomplete and thus an inaccurate portrayal of her 26 performance abilities and limitations. 27 28 16 error affects the ALJ s RFC As a result, Plaintiff s RFC 1 Additionally, Plaintiff is correct that the ALJ incorrectly 2 determined that she could perform the work of hand packager and 3 assembler. 4 assembler, small products I as loud. See DOT code 920.587-018; DOT code 5 706.684-022. The DOT list the noise level for a hand packager and 6 7 The DOT is part of the record for review in social security cases. 8 The regulations provide that DOT classifications provide a rebuttable 9 presumption regarding certain jobs and require that the ALJ take notice 10 of DOT s classifications. 20 C.F.R. § 404.1566(d)(2)-(5)(e). Here, the 11 ALJ limited Plaintiff to a work environment with moderate noise. 12 16). 13 The ALJ did not offer an explanation as to the deviation. 14 ALJ s determination that Plaintiff could work as a hand packager and 15 assembler is not supported by substantial evidence. (AR This contrasts with the definition of the occupation in the DOT. Thus, the 16 17 Because the ALJ incorrectly found that Plaintiff did not have a 18 severe mental impairment, Plaintiff s RFC is inaccurate. 19 the 20 established limitations. 21 definitively explain this departure. 22 840, 847 (9th Cir. 2001) (citing Johnson v. Shalala, 60 F.3d 1428, 1435 23 (9th Cir. 1995)). ALJ failed select occupations that comport with Furthermore, Plaintiff s If the ALJ departs from the DOT, the ALJ must See Pinto v. Massanari, 249 F.3d Remand is required. 24 25 26 27 28 17 1 C. 2 Because The ALJ Erred In His Evaluation of Plaintiff s Mental Impairment, His Hypothetical Was Erroneous 3 4 Plaintiff contends that the ALJ erred by failing provide a complete 5 hypothetical to the VE. 6 notes 7 episodes of decompensation . . . . that the ALJ s (Jt. Stip. at 17). hypothetical did Specifically, Plaintiff not (Id.). include [Plaintiff s] This Court agrees. 8 9 In order for the vocational expert s testimony to constitute 10 substantial evidence, the hypothetical question posed must consider all 11 of the claimant s limitations. 12 (9th 13 limitations for which there was no evidence. 14 240 F.3d 1157, 1164-65 (9th Cir. 2001) (ALJ not bound to accept as true 15 the restrictions set forth in hypothetical if they were not supported 16 by substantial evidence). Cir. 1995). However, Andrews v. Shalala, 53 F.3d 1035, 1044 the ALJ is not required to include See Osenbrock v. Apfel, 17 18 The ALJ posed the following hypothetical to the VE: 19 20 [C]onsider a person of [Plaintiff s] background, her 21 age, education and work experience and I would like you to 22 consider her residual functional capacity ( RFC ) that was 23 assessed by the specialist in internal medicine who saw 24 [Plaintiff] on December 12 of 2007 . . . [c]onsidering that 25 assessment of functional capacity and reducing the work 26 27 28 18 1 because of [Plaintiff s] basic lack of past work, to work 2 which is simple, routine, repetitive, and non-public. 3 4 (AR 97-98). 5 6 Here, the ALJ erroneously concluded that Plaintiff did not have a 7 severe mental impairment. Accordingly, ALJ did not set forth any 8 limitations Plaintiff s 9 hypothetical. stemming from mental impairment in his Thus, the ALJ s hypothetical failed to consider all of 10 the claimant s limitations. 11 Andrews, 53 F.3d at 1044. Remand is necessary. 12 13 CONCLUSION 14 15 The ALJ erred at his step-two evaluation of Plaintiff s mental 16 impairment. The record contains sufficient evidence to satisfy the de 17 minimis test for severity. 18 this evidence, the ALJ s hypothetical was incomplete and his RFC 19 assessment was inaccurate. 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ Because the ALJ did not properly consider 19 1 Consistent with the foregoing, and pursuant to sentence four of 42 2 U.S.C. § 405(g),10 IT IS ORDERED that judgment be entered REVERSING the 3 decision of the Commissioner and REMANDING this matter for further 4 proceedings consistent with this decision. IT IS FURTHER ORDERED that 5 the Clerk of the Court serve copies of this Order and the Judgment on 6 counsel for both parties. 7 8 DATED: August 6, 2009. 9 /S/ 10 SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 20

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