Tanieka L. Harris v. Michael J. Astrue, No. 5:2009cv00199 - Document 16 (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 action 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 TANIEKA L. HARRIS, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) ______________________________) NO. EDCV 09-199 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Tanieka L. Harris ( Plaintiff ) brings this action seeking to 22 overturn the decision of the Commissioner of the Social Security 23 Administration (hereinafter the Commissioner or the Agency ) denying 24 her applications for Supplemental Security Income ( SSI ) and Disability 25 Insurance Benefits ( DIB ). 26 U.S.C. § 636(c), to the jurisdiction of the undersigned United States 27 Magistrate Judge. 28 Commissioner is The parties consented, pursuant to 28 For the reasons stated below, the decision of the REVERSED and the action proceedings consistent with this decision. is remanded for further 1 2 3 II. 4 PROCEDURAL HISTORY 5 6 Plaintiff protectively filed applications for SSI and DIB on May (Administrative Record ( AR ) 8, 34-37, 99-101, 103).1 7 30, 2006. She 8 alleged a disability onset date of October 1, 2005 (AR 8, 125) due to 9 asthma, headaches, seizures, and side effects from a stroke. (AR 125). 10 The Agency denied Plaintiff s claims for SSI and DIB initially on 11 December 28, 2006. 12 reconsideration on April 26, 2007. (AR 8, 38-42). This denial was upheld upon (AR 8, 44-48). 13 14 On August 13, 2008, a hearing was held before Administrative Law 15 Judge ( ALJ ) Joseph D. Schloss.2 16 in a written decision dated October 3, 2008. (AR 5-16). On October 10, 17 2008, Plaintiff sought review of the unfavorable decision. (AR 4). The 18 Appeals Council declined review on December 11, 2008. 19 Plaintiff commenced the instant action on February 4, 2009. 20 /// 21 /// 22 /// 23 /// (AR 18-27). The ALJ denied benefits (AR 1-3). 24 25 26 27 28 1 Plaintiff previously filed an application for disability benefits in 2004, which was denied. (AR 26). 2 The ALJ held a prior hearing on June 26, 2008. (AR 28-33). It was continued after Plaintiff informed the ALJ that she had hired an attorney to represent her. (Id.). 2 1 III. 2 FACTUAL BACKGROUND 3 4 A. Generally 5 6 Plaintiff was born on May 30, 1972, and was 36 years old at the 7 time of the hearing. 8 education and past relevant work experience as a rural route carrier. 9 (AR 126, 129). (AR 18, 99, 392). She has three years of college 10 11 B. Relevant Medical History 12 13 1. Treating Physicians 14 15 On September 19, 2000, Plaintiff presented at a Kaiser Permanente 16 clinic with complaints of headaches. (AR 281). She reported that she 17 had taken Vicodin earlier at home but that it did not relieve her pain. 18 (Id.). 19 normal. 20 headaches and prescribed Stadol and Phenergan. Dr. Sugimoto noted that a recent MRI of Plaintiff s brain was (Id.). Dr. Sugimoto diagnosed Plaintiff with migraine (Id.). 21 On August 19, 2002, Dr. John Sharpe, Plaintiff s primary care 22 23 physician, treated Plaintiff for complaints of wheezing at night. 24 327). He diagnosed sinusitis and asthma. (AR (Id.). 25 26 On January 8, 2003, Plaintiff presented with complaints of 27 difficulty speaking (i.e., stuttering), headaches on the left side of 28 the head, weakness in the left extremities, and numbness in the left 3 1 face, arm, and leg. 2 neurological examinations were all normal. 3 Thomas Miller, a neurologist, commented that Plaintiff had suggestion 4 of medication rebound-type headache and symptoms suggesting a migraine 5 with impaired speech and paresthesia. 6 Plaintiff should limit her narcotic analgesic medications. (AR 341-42). (AR 336). An MRI of the brain and physical and (AR 337-39, 341-42). (AR 341). Dr. He opined that 7 8 9 On January 17, 2003, Plaintiff reported that her headaches were frequent and that she could not talk properly. (AR 343). Dr. Miller 10 referred Plaintiff for a speech therapy evaluation. 11 2003, Dr. Viera Striez, a speech and language pathologist, observed that 12 Plaintiff s scores from the Stuttering Severity Instrument examination 13 suggested a moderate degree of stuttering. (AR 347). Dr. Striez also 14 noted that Plaintiff had severe facial dystonia, eye blinking, and 15 involuntary facial and throat muscle ticks and twitches during reading 16 and spontaneous speech. 17 conduct 18 Plaintiff s facial dystonia and speech dysfluencies. 19 11, 2003, Dr. Miller noted that Plaintiff was speaking better and that 20 she did better when she speaks slowly. further (Id.). evaluation (Id.). On June 4, Dr. Striez recommended that Dr. Miller to determine the underlying cause of On June (Id.). (AR 348). 21 22 On September 8, 2003, Dr. Sharpe referred Plaintiff Dr. 23 Francisco Torres for neurology consultation. 24 complained of stuttering and chronic headaches. 25 noted that Plaintiff s neurologic examination was normal but that, at 26 times, Plaintiff s speech had a stuttering quality to it and that she 27 suffered from a chronic headache problem. 28 4 (AR 362). to (Id.). (AR 366). Plaintiff Dr. Torres 1 On September 12, 2003, Dr. Sharpe referred Plaintiff to Dr. Joey 2 Gee for another neurology consultation. 3 Plaintiff s headaches were consistent with migraine without aura and 4 that she had lots of features in the initial headache secondary to 5 medication overuse. 6 headaches 7 headache. 8 use of Robaxin, Flexeril, Propranolol, Elavil, Reglan. 9 further recommended that Plaintiff taper down the use of Ambien and transformed (Id.). (AR 365). into a (AR 364). Dr. Gee opined that Dr. Gee observed that Plaintiff s daily continued, daily phenomenon Dr. Gee recommended that Plaintiff discontinue the (Id.). (Id.). He 10 significantly cut down the use of Vicodin. Dr. Gee commented 11 that he hoped that Plaintiff would eventually stop using Vicodin. 12 (Id.). 13 October 8, 2003, however, Plaintiff reported that she had taken five 14 Vicodin pills that day. He then prescribed Depakote and Nortriptyline. (Id.). On (AR 377). 15 16 On February 20, 2004, Dr. Gee noted that Plaintiff was still 17 receiving Vicodin and Darvocet. (AR 399). He commented that he wanted 18 Plaintiff to completely discontinue the use of narcotic medications, as 19 this is only worsening her headache overall, causing rebound. 20 Dr. Gee highly recommended that Dr. Sharpe withhold any further 21 prescriptions of the narcotics medications. 22 a series of botulinum injections over the course of the next several 23 months to relieve Plaintiff s headaches. 24 421, 423, 426-27). (Id.). (Id.). He administered (AR 399, 401, 412, 414-17, 25 26 27 On April 16, 2004, Plaintiff reported that she suffered a syncopal episode and injured her head and lower back. 28 5 (AR 402, 406). A CT scan 1 of the brain and x-rays of the back were negative. 2 Pierre Assaf prescribed Vicodin and discharged Plaintiff. (AR 405, 408). Dr. (AR 407). 3 4 On June 1, 2004, Dr. Gee discontinued Plaintiff s Depakote 5 medication and prescribed Topiramate. 6 Plaintiff was using an excessive amount of Acetaminophen and Excedrin 7 and advised her to discontinue them at all costs. (AR 412). He commented that (Id.). 8 9 On July 14, 2004, Plaintiff again complained of severe headaches. 10 (AR 413). She noted that she could not tolerate Topiramate because of 11 her history of borderline glaucoma on a previous trial. 12 Gee 13 Indomethacin. discontinued Plaintiff s (Id.). Topiramate medication (Id.). and Dr. prescribed He commented: 14 15 I 16 [Plaintiff] may be one of these patients who just do not 17 respond to any available medication that we have tried. 18 patient may have to be placed on chronic long term analgesic 19 medications such as a longer acting opiate compounds just to 20 control her headache. 21 do feel that we are on the brink of stating that This (Id.). 22 23 On August 30, 2004, Dr. Gee noted that Plaintiff was very 24 difficult to treat because she had been unable to tolerate many 25 medications. 26 experiencing a syncopal episode. 27 mild mitral valve prolapse changes with minimal to mild regurgitation (AR 414). On April 6, 2005, Plaintiff complained of (AR 223). 28 6 An echocardiogram revealed 1 and mild tricuspid valve regurgitation changes. 2 and a CT of the head were normal. (AR 239-40). An EEG (AR 241-44). 3 4 On May 5, 2005, Plaintiff reported that she had experienced four 5 blackouts since discontinuing Topiramate. (AR 418). She noted that she 6 did not have any blackouts when she was on Topiramate. 7 noted that an EEG and CT of the head were both normal. (Id.). Although 8 Plaintiff noted that she experienced vision problems with Topiramate, 9 she was willing to go back on the medication. 10 represcribed Topiramate at a lower dose. (Id.). (Id.). Dr. Gee Dr. Gee (Id.). 11 12 An MRI of the brain taken on August 2, 2005 was unremarkable. 13 428). 14 burning. 15 insomnia, depression, anxiety, and frequent headaches. 16 (AR On September 9, 2005, Plaintiff complained of eye irritation and Gee prescribed Effexor. (AR 420). On January 30, 2006, Plaintiff complained of (AR 424). Dr. 17 18 On September 12, 2006, Plaintiff complained of headaches. Dr. Sharpe observed that there were no focal deficits. (AR 19 475). 20 He noted that Plaintiff was still taking narcotic pain medication such 21 as OxyContin and Vicodin. 22 (Id.). 23 tolerating Topiramate. (Id.). On November 13, 2006, Dr. (Id.). Dr. Sharpe prescribed Toradol. Gee noted that Plaintiff was (AR 465). 24 25 On December 15, 2006, Dr. Sharpe noted that an individual named 26 Reggie Jones, who purported to be Plaintiff s husband, called to tell 27 him 28 Plaintiff denied that she sold her medication or that Jones was her that Plaintiff was selling her 7 OxyContin pills. (AR 464). 1 husband. 2 Plaintiff s prescription for OxyContin. (Id.). Dr. Sharpe assessed migraine headaches and refilled (Id.). 3 4 On January 23, 2007, Dr. Gee noted that Plaintiff has maximized 5 her current treatment option and is as stable as she is going to be in 6 regard to her chronic migraine and epilepsy. (AR 505). Dr. Gee opined 7 that Plaintiff was not adequate to perform any significant job duties. 8 (Id.). 9 Topiramate and Botulinum injections. He indicated that he would continue to treat Plaintiff with (Id.). 10 11 On September 2, 2008, Dr. Sharpe submitted a letter indicating that 12 Plaintiff had chronic migraines and . . . continuous headaches 24 hours 13 a day, 7 days a week, with exacerbations that are disabling. (AR 504). 14 He also noted that Plaintiff had epilepsy (a seizure disorder). 15 (Id.). Dr. Sharped concluded that Plaintiff may be able to sit, stand, 16 or walk from 5 minutes to 1 hour and could not be employed in any type 17 of work due to the severity of her constant headaches. (Id.). 18 19 2. Consultative Examining Physicians 20 21 On December 8, 2004, Dr. Gabriel Fabella conducted an internal 22 medicine evaluation of Plaintiff. (AR 202-07). 23 of headaches and asthma. 24 out in January 2002. 25 speech therapy and learn how to read again. 26 her asthma was well controlled. Plaintiff noted that her asthma attacks 27 occurred only once a month and were relieved by an inhaler. (AR 202). (Id.). Plaintiff complained Plaintiff stated that she passed Plaintiff stated that she had to have 28 8 (Id.). She reported that (Id.). 1 Dr. Fabella noted that Plaintiff s physical examination was 2 unremarkable except for her speech. 3 observed that Plaintiff spoke very slowly as if she was mentally slow 4 and grouping for words. (AR 202). Dr. Fabella opined that Plaintiff s 5 only limitations were that she should avoid temperature extremes, dusts, 6 fumes, and strong chemicals due to her asthma. (AR 204-06). Specifically, he (AR 206). 7 8 On December 8, 2004, Dr. Louis Fontana performed a psychiatric 9 evaluation of Plaintiff. (AR 208-12). Plaintiff complained that he had 10 [p]roblems with depression since [her] stroke. 11 reported that on January 6, 2002, she was taken to a hospital after 12 having a severe headache. (AR 209). Plaintiff noted that she has never 13 had any definitive diagnosis of a stroke but has had problems with 14 speech since the incident. (Id.). She asserted that she had to relearn 15 how to read. 16 2000, after she suffered her possible stroke. (Id.). (AR 208). She Plaintiff reported that she stopped working in (AR 210). 17 18 After conducting a mental status examination, Dr. Fontana diagnosed 19 Plaintiff with adjustment disorder with depressed mood. (AR 210-11). 20 He opined that Plaintiff should be able to: perform simple and 21 repetitive tasks, as well as more detailed and complex tasks ; accept 22 instructions from supervisors; interact appropriately with coworkers and 23 the public; perform work activities on a consistent basis, without 24 additional supervision; maintain regular attendance in the workplace; 25 and complete a normal workday/workweek. (AR 211). 26 27 28 On February 11, 2006, Dr. Jason Yang conducted another psychiatric evaluation of Plaintiff. (AR 434-37). 9 Plaintiff complained of 1 depression and anxiety for the past several years. 2 stated that she also suffered from severe headaches. 3 reported that she last worked in 2003. 4 a mental status examination revealed no evidence of cognitive deficits, 5 perceptual disturbances, or delusional disorders. 6 diagnosed Plaintiff with depressive disorder, not otherwise specified. 7 (AR 436). 8 remember and complete simple and complex tasks; tolerate the stress 9 inherent in the work environment; maintain regular attendance; work (AR 436). (AR 434). (Id.). She Plaintiff Dr. Yang noted that (AR 436-37). He Dr. Yang opined that Plaintiff should be able to: adequately 10 without supervision; and interact 11 coworkers, and the public. appropriately with supervisors, (AR 437). 12 13 3. Medical Experts 14 15 At the hearing, Dr. DeBolt testified that, based on his review of 16 the medical records, Plaintiff did not have any severe medically 17 determinable impairment. 18 were no objective findings to support any neurological impairment or 19 diagnosis related to Plaintiff s headaches. 20 also testified that the medical records did not demonstrated that 21 Plaintiff ever suffered a seizure or stroke. 22 that the medical evidence did not reflect any need for Plaintiff to take 23 OxyContin. 24 of stuttering, which he believed was caused by nervousness and not by 25 an organic disease of the brain. (AR 22). (AR 21). In particular, he stated that there (AR 21-22). (AR 21-25). Dr. DeBolt He stated Dr. DeBolt also indicated that there was evidence (AR 25). 26 27 28 10 1 C. Third Party Letters 2 3 In an anonymous letter dated August 7, 2006, a person reported that 4 Plaintiff 5 underreporting her assets. 6 Plaintiff owned a house and two cars, which were registered under her 7 mother s name. 8 selling her OxyContin and Vicodin pills. was committing (Id.). social security (AR 95). disability fraud by The person explained that The person also reported that Plaintiff was (Id.). 9 10 In another anonymous letter dated June 25, 2007, a person reported 11 that Plaintiff was committing social security disability fraud. 12 96). 13 work due to illness, she worked for a company named Tiny Tours. 14 The person also stated that Plaintiff had been selling her OxyContin and 15 Vicodin pills and had applied for county aid. (Id.). In support of the 16 letter, the person submitted a copy of a May 1, 2007 check in the amount 17 of $632 from Tiny Tours made payable to Plaintiff. (AR 98). The person 18 also submitted a copy of a Disability Benefit Activation Form signed by 19 Plaintiff on April 10, 2007 and by her treating physician, Dr. Gee, on 20 April 19, 2007. (AR 97). On the form, Plaintiff reported that she last 21 worked on March 13, 2007, and both she and Dr. Gee reported that she 22 became disabled on March 16, 2007. (AR The person noted that, despite Plaintiff s claim of inability to (Id.). (Id.). 23 24 Another anonymous letter, which is undated, states that the prior 25 anonymous letter(s) was written by family members who were bent on 26 destroying Plaintiff s life. (AR 503). 27 28 11 1 IV. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must demonstrate 5 a medically determinable physical or mental impairment that prevents him 6 from engaging in substantial gainful activity3 and that is expected to 7 result in death or to last for a continuous period of at least twelve 8 months. 9 42 U.S.C. § 423(d)(1)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant 10 incapable of performing the work he previously performed and incapable 11 of performing any other substantial gainful employment that exists in 12 the national economy. 13 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 14 15 To decide if a claimant is entitled to benefits, an ALJ conducts 16 a five-step inquiry. 17 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows: 18 (1) 19 Is the claimant presently engaged in substantial gainful 20 activity? If so, the claimant is found not disabled. 21 If not, proceed to step two. 22 (2) 23 Is the claimant s impairment 24 claimant is found not disabled. 25 severe? If not, the If so, proceed to step three. 26 27 28 3 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. §§ 404.1510, 416.910. 12 (3) 1 Does the claimant s impairment meet or equal one of a 2 list of specific impairments described in 20 C.F.R. Part 3 404, Subpart P, Appendix 1? 4 found disabled. If so, the claimant is If not, proceed to step four. 5 (4) 6 Is the claimant capable of performing her past work? 7 so, the claimant is found not disabled. 8 If If not, proceed to step five. 9 (5) 10 Is the claimant able to do any other work? 11 claimant is found disabled. 12 If not, the If so, the claimant is found not disabled. 13 14 Tackett, 180 F.3d at 1098-99; see also 20 C.F.R. §§ 404.1520(b)-(g)(1), 15 416.920(b)-(g)(1); Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th 16 Cir. 2001) (citations omitted). 17 18 The claimant has the burden of proof at steps one through four, and 19 the Commissioner has the burden of proof at step five. Bustamante, 262 20 F.3d at 953-54. 21 establishing an inability to perform past work, the Commissioner must 22 show that the claimant can perform some other work that exists in 23 significant numbers in the national economy, taking into account the 24 claimant s residual functional capacity ( RFC ),4 age, education, and If, at step four, the claimant meets his burden of 25 26 27 28 4 Residual functional capacity is the most [one] can still do despite [one s] limitations and represents an assessment based on all the relevant evidence in [one s] case record. 20 C.F.R. §§ 404.1545(a), 416.945(a). 13 1 work experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 2 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 3 do so by the testimony of a vocational expert or by reference to the 4 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart 5 P, Appendix 2 (commonly known as the Grids ). 6 F.3d 1157, 1162 (9th Cir. 2001). 7 (strength-related) 8 inapplicable and the ALJ must take the testimony of a VE. 9 Apfel, 216 F.3d 864, 869 (9th Cir. 2000). and The Commissioner may Osenbrock v. Apfel, 240 When a claimant has both exertional nonexertional limitations, the Grids are Moore v. 10 11 V. 12 THE ALJ S DECISION 13 14 At step one, the ALJ found that Plaintiff had not engaged in 15 substantial gainful activity since the alleged disability onset date. 16 (AR 10). 17 18 At step two, the ALJ determined that Plaintiff had medically 19 determinable impairments of headaches and asthma. (Id.). 20 found that Plaintiff s impairments were not severe. 21 the ALJ concluded that Plaintiff was not disabled at any time through 22 the date of the decision. However, he (Id.). Therefore, (AR 16). 23 24 VI. 25 STANDARD OF REVIEW 26 27 28 Under 42 U.S.C. § 405(g), a district Commissioner s decision to deny benefits. 14 court may review the The court may set aside the 1 Commissioner s decision when the ALJ s findings are based on legal error 2 or are not supported by substantial evidence in the record as a whole. 3 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 4 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 5 6 Substantial evidence is more than a scintilla, but less than a 7 preponderance. Reddick, 157 F.3d at 720. 8 which a reasonable person might accept as adequate to support a 9 conclusion. Id. It is relevant evidence To determine whether substantial evidence supports 10 a finding, the court must consider the record as a whole, weighing 11 both 12 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 13 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 14 reasonably support either affirming or reversing that conclusion, the 15 court may not substitute its judgment for that of the Commissioner. 16 Reddick, 157 F.3d at 720-21. 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ evidence that supports and evidence 15 that detracts from the If the evidence can 1 VII. 2 DISCUSSION 3 4 The ALJ s Finding That Plaintiff s Headaches Were Not Severe At 5 Step Two Was Error 6 7 Plaintiff argues that the ALJ improperly found that Plaintiff s 8 headaches and asthma were not severe.5 9 evidence demonstrates that Plaintiff satisfies the very low standard for 10 a step-two finding of severity as to her headaches, but not her asthma. 11 The Court remands this action for reevaluation of Plaintiff s claim 12 based upon her headaches after step-two. (Jt. Stip. at 18-21). The 13 14 By its own terms, the evaluation at step two is a de minimis test 15 intended to weed out the most minor of impairments. See Bowen v. 16 Yuckert, 482 U.S. 137, 153-154, 107 S. Ct. 2287, 96 L. Ed. 2d 119 17 (1987); Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) 18 (stating that the step two inquiry is a de minimis screening device to 19 dispose of groundless claims) (quoting Smolen, 80 F.3d at 1290). 20 According to the Commissioner s regulations, an impairment is not 21 severe if it does not significantly limit [the claimant s] physical 22 ability to do basic work activities. 23 severe impairment must have lasted or be expected to last for a Smolen, 80 F.3d at 1290. A 24 25 26 27 28 5 To the extent Plaintiff contends that the ALJ erred in finding that Plaintiff s asthma was not severe, the claim similarly fails. The record clearly demonstrates that Plaintiff s asthma was well controlled. (AR 202, 277, 282, 288). 16 1 continuous period of not less than twelve months. 2 404.1509, 416.909. 20 C.F.R. §§ 3 4 An impairment or combination of impairments can be found not 5 severe only if the evidence establishes a slight abnormality or a 6 combination of slight abnormalities which have no more than a minimal 7 effect on an individual s ability to work. 8 claimants with slight abnormalities that do not significantly limit any 9 basic work activity can be denied benefits at step two. SSR 85-28. Only those Bowen, 482 10 U.S. at 158). If the evidence presented by the claimant presents more 11 than a slight abnormality, the step two requirement of severe is 12 met, and the sequential evaluation process should continue. 13 F.3d at 1290. 14 favor of the claimant. 15 541, 547 (3rd Cir. 2003). Smolen, 80 Reasonable doubts on severity are to be resolved in Newell v. Comm. of Social Security, 347 F.3d 16 17 The ALJ erred when he concluded that Plaintiff s headaches were not 18 severe. (AR 10-16). 19 treatment, including multiple MRIs, neurological tests, examinations and 20 a 21 injections), demonstrate 22 significant. Plaintiff was admitted to the hospital for treatment of 23 her headaches on at least two occasions. 24 evidence demonstrates that Plaintiff consistently and regularly sought 25 treatment for her migraines from 2003 through 2006. 26 229, 230, 214, 215). variety of The extent and duration of Plaintiff s medical treatment approaches that her 27 28 17 (i.e., medications headaches were and on-going (AR 223, 215). Botox and The medical (AR 363, 200, 223, 1 Plaintiff s evidence regarding her headaches demonstrates more than 2 a slight abnormality. 3 that her headaches were not severe at step two. 4 remedy this error. Accordingly, it was error for the ALJ to find Remand is required to 5 6 VIII. 7 CONCLUSION 8 9 Because the Court finds that remand is required due to the step two 10 error, the Court declines to reach the remaining issues raised by 11 Plaintiff. 12 evidence in the record that Plaintiff was possibly employed during the 13 period of alleged disability or that she was engaged in the unlawful 14 sale of her narcotic prescriptions. 15 his denial of benefits on these two facts was unclear from the ALJ s 16 decision. If the ALJ intends to rely on certain evidence to support his 17 denial of benefits, then he must indicate which evidence he is relying 18 upon (and the source and/or reliability of that evidence). The Court notes that the ALJ appeared to rely, in part, on The degree to which the ALJ based 19 20 If Plaintiff was engaged in substantial gainful employment during 21 the alleged period of disability, then the record should be developed 22 on that issue. 23 evidence 24 medications. 25 those medications would have an impact on Plaintiff s ability to work. 26 Finally, if the ALJ rejects the treating physician s opinions, the ALJ 27 must provide clear and convincing reasons for rejecting those opinions. in the Furthermore, the Court notes that there is ample record that Plaintiff was prescribed narcotic The ALJ should determine whether or not side effects from 28 18 1 Consistent with the foregoing, and pursuant to sentence four of 42 2 U.S.C. § 405(g),6 IT IS ORDERED that judgment be entered REVERSING the 3 decision of the Commissioner and REMANDING this action for further 4 proceedings consistent with this decision. 5 the Clerk of the Court serve copies of this Order and the Judgment on 6 counsel for both parties. IT IS FURTHER ORDERED that 7 8 DATED: October 20, 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 6 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. 19

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