Rosa Marie Fullmore v. Michael J Astrue, No. 5:2009cv01276 - Document 16 (C.D. Cal. 2010)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is REVERSED. 2. This action is REMANDED to Defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above. (SEE ORDER FOR FURTHER DETAILS) (lmh)

Download PDF

Rosa Marie Fullmore v. Michael J Astrue Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 14 15 16 17 ROSA MARIE FULLMORE, ) ) Plaintiff, ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner, Social Security ) Administration, ) ) Defendant. ) ) No. EDCV 09-1276 CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. 21 review of the Commissioner s denial of disability benefits. 22 discussed below, the court finds that the Commissioner s decision 23 should be reversed and this matter remanded for further proceedings. 24 25 I. Plaintiff seeks As BACKGROUND Plaintiff Rosa Marie Fullmore was born on July 25, 1962, and was 26 27 28 1 Dockets.Justia.com 1 forty-six years old at the time of her administrative hearing.1 2 [Administrative Record ( AR ) 127, 65.] She has a limited education 3 (tenth grade) and past relevant work experience as a warehouse worker. 4 [AR 148, 153.] Plaintiff alleges disability on the basis of panic and 5 anxiety attacks and depression. [AR 147.] 6 7 II. PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on July 2, 2009, and filed on 8 July 15, 2009. On December 7, 2009, Defendant filed Plaintiff s 9 Administrative Record ( AR ). On February 5, 2010, the parties filed 10 their Joint Stipulation ( JS ) identifying matters not in dispute, 11 issues in dispute, the positions of the parties, and the relief sought 12 by each party. 13 oral argument. III. 14 15 This matter has been taken under submission without PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff applied for supplemental security income ( SSI ) on 16 March 8, 2006, alleging disability since January 1, 2005. 17 After the claim was denied initially and on reconsideration, Plaintiff 18 requested an administrative hearing, which was held on November 10, 19 2008, before an Administrative Law Judge ( ALJ ). [AR 65.] 20 appeared with counsel, and testimony was taken from Plaintiff, 21 vocational expert Troy Scott, and medical expert David Glassmeyer. 22 [Id.] The ALJ denied benefits on December 23, 2008. [AR 16.] 23 Appeals Council denied review on May 6, 2009, the ALJ s decision 24 became the Commissioner s final decision. IV. 25 26 [JS 2.] Plaintiff When the [AR 1.] STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 27 1 28 The Joint Stipulation incorrectly lists Plaintiff s age as thirty-seven. [JS 2.] 2 1 Commissioner s decision to deny benefits. The Commissioner s (or 2 ALJ s) findings and decision should be upheld if they are free of 3 legal error and supported by substantial evidence. 4 court determines that a finding is based on legal error or is not 5 supported by substantial evidence in the record, the court may reject 6 the finding and set aside the decision to deny benefits. 7 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 8 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 9 F.3d 1157, 1162 (9th Cir. However, if the See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, 10 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 11 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 12 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 13 Substantial evidence is more than a scintilla, but less than a 14 preponderance. Reddick, 157 F.3d at 720. 15 which a reasonable person might accept as adequate to support a 16 conclusion. 17 a finding, a court must review the administrative record as a whole, 18 weighing both the evidence that supports and the evidence that 19 detracts from the Commissioner s conclusion. 20 can reasonably support either affirming or reversing, the reviewing 21 court may not substitute its judgment for that of the Commissioner. 22 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. To determine whether substantial evidence supports V. 23 It is relevant evidence Id. If the evidence DISCUSSION 24 A. THE FIVE-STEP EVALUATION 25 To be eligible for disability benefits a claimant must 26 demonstrate a medically determinable impairment which prevents the 27 claimant from engaging in substantial gainful activity and which is 28 expected to result in death or to last for a continuous period of at 3 1 least twelve months. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 2 721; 42 U.S.C. § 423(d)(1)(A). 3 Disability claims are evaluated using a five-step test: 4 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 5 6 7 8 9 10 11 12 13 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 14 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 15 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 16 C.F.R. § 404.1520, § 416.920. If a claimant is found disabled or 17 not disabled at any step, there is no need to complete further 18 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 19 Claimants have the burden of proof at steps one through four, 20 subject to the presumption that Social Security hearings are non21 adversarial, and to the Commissioner s affirmative duty to assist 22 claimants in fully developing the record even if they are represented 23 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 24 1288. If this burden is met, a prima facie case of disability is 25 made, and the burden shifts to the Commissioner (at step five) to 26 27 28 4 1 prove that, considering residual functional capacity ( RFC )2, age, 2 education, and work experience, a claimant can perform other work 3 which is available in significant numbers. 4 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 5 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 6 Here, the ALJ found that Plaintiff had not engaged in substantial 7 gainful activity since March 8, 2006 (step one); that Plaintiff had 8 severe impairments, namely chronic back pain (musculoligamentous) 9 and depressive disorder (step two); and that Plaintiff did not have an 10 impairment or combination of impairments that met or equaled a 11 listing (step three). [AR 12.] 12 has an RFC for medium work, except with a mental residual functional 13 capacity for simple repetitive tasks, occasional non-intense contact 14 with coworkers and supervisors, no hypervigilence, and no fast-paced 15 work. [AR 13.] Plaintiff was found capable of performing her past 16 relevant work as a warehouse worker (step four). [AR 16.] Accordingly, 17 Plaintiff was found not disabled as defined by the Social Security 18 Act. [Id.] The ALJ determined that Plaintiff 19 C. 20 The parties Joint Stipulation identified the following four 21 22 PLAINTIFF S PRESENT CLAIMS disputed issues: 1. Whether the ALJ properly considered the lay witness 23 2 24 25 26 27 28 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 statement. 1 2 2. 3 4 psychiatrist s opinion. 3. 5 6 Whether the ALJ properly considered the treating Whether the ALJ properly considered the treating psychiatrist s opinion. 4. 7 Whether the ALJ properly considered the treating clinician s opinion. 8 [JS 2.] 9 D. 10 ISSUE ONE: THE LAY WITNESS STATEMENTS On March 27, 2006, Plaintiff s cousin, Genevieve Diaz, completed 11 a Function Report Adult Third Party describing Plaintiff s 12 activities and other functions. [AR 138-145.] Ms. Diaz wrote that she 13 has known Plaintiff her entire life and that she visits Plaintiff once 14 or twice a month. [AR 138.] Ms. Diaz also wrote, among other things, 15 that Plaintiff has a hard time sleeping and staying asleep, that 16 Plaintiff takes care of her three children, that her children remind 17 her to take her medicine, that she cooks and does laundry and cleans 18 about once a week, that she doesn t like being around a lot of people, 19 that she no longer drives herself, that she has panic attacks, and 20 that she has trouble following instructions and handling stress. [AR 21 138-145.] 22 Plaintiff contends that this was error. 23 The ALJ did not address this form in his decision and In determining whether a claimant is disabled, an ALJ must take 24 into account lay witness testimony concerning a claimant s ability to 25 work unless the ALJ expressly determines not to and gives reasons 26 germane to each witness for doing so. 27 Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006); Lewis v. Apfel, 236 28 F.3d 503, 511 (9th Cir. 2001). [W]here the ALJ s error lies in a 6 Stout v. Commissioner, Social 1 failure to properly discuss competent lay testimony favorable to the 2 claimant, a reviewing court cannot consider the error harmless unless 3 it can confidently conclude that no reasonable ALJ, when fully 4 crediting the testimony, could have reached a different disability 5 determination. Stout, 454 F.3d at 1056; see also Robbins v. Social 6 Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006). 7 failure to fully address Genevieve Diaz s testimony was harmless 8 error. 9 Plaintiff s.3 Here, the ALJ s Ms. Diaz s testimony was substantially similar to that of The ALJ rejected Plaintiff s testimony with clear and 10 convincing reasons that were not challenged on appeal. Accordingly, 11 Ms. Diaz s testimony did not add substantial weight to Plaintiff s 12 claim. 13 failure to consider testimony of claimant s son, noting that 14 [b]ecause the ALJ did not make a legally sufficient adverse 15 credibility finding with regard to [the claimant s] own testimony, we 16 cannot say with respect to [the son s] testimony that no reasonable 17 ALJ, when fully crediting the testimony, could have reached a 18 different disability determination )(citations and internal quotation 19 marks omitted). 20 fully this evidence was inconsequential to the ultimate determination 21 of non-disability. 22 does not merit reversal. 23 // 24 // Cf. Robbins, 466 F.3d at 885 (finding reversible error in Under these circumstances, the failure to address Stout, 454 F.3d at 1055. Accordingly, Issue One 25 26 27 28 3 Plaintiff wrote in her Function Report Adult that she has trouble falling and staying asleep, that she takes care of her children, that she cooks, that she cleans and does laundry about once a week, that she tries to avoid driving, that she has trouble being around people and finds it difficult to handle stress. [AR 130-137.] 7 E. 1 2 ISSUES TWO AND THREE: THE OPINIONS OF THE TREATING PSYCHIATRISTS 3 On March 6, 2007, Plaintiff s treating psychiatrist at the 4 Riverside County Mental Health Clinic completed a narrative report of 5 Plaintiff s mental functioning from July 26, 2006, to November 29, 6 2006. 7 Health Clinic were added to the record directly before the 8 administrative hearing. 9 had loose thought, evidence of depression, anxiety, and phobias, an Supporting treatment records from the Riverside County Mental The narrative report indicated that Plaintiff 10 inability to maintain sustained levels of concentration, sustain 11 repetitive tasks for an extended period, and adapt to new or stressful 12 situations, and that Plaintiff could not complete a forty-hour 13 workweek without decompensating. [AR 377.] 14 this report in his decision. 15 error. 16 The ALJ did not address Plaintiff contends that this was legal The record indicates that the ALJ adopted the opinion of the 17 medical expert, although the hearing transcript indicates that the 18 records from Riverside County Mental Health Clinic were added to the 19 record directly before the administrative hearing and that the medical 20 expert did not have time to sufficiently review them before 21 testifying. [AR 74-76.] Likewise, the ALJ appears not to have 22 evaluated the treatment records from Riverside County Mental Health 23 Clinic in his decision, in fact stating that the record contained no 24 psychiatric treatment notes. [AR 13.] Therefore, it is not clear 25 from the record that the AlJ properly considered the records from the 26 Riverside County Mental Health Clinic. 27 mention of either the narrative report or the treatment records, and 28 in fact states that the latter do not even exist. 8 The ALJ s decision makes no Accordingly, Issue 1 Two merits reversal for consideration of the records from the 2 Riverside County Mental Health Clinic. 3 However, Plaintiff s claim in Issue Three that the ALJ failed to 4 properly consider the opinion of Dr. Gurmeet Multani, M.D., does not 5 merit reversal. 6 an undated note stating that patient is under my care and is suffers 7 (sic) from major depressive episode and is on medication. 8 fit to work at this time. [AR 383.] 9 treating psychiatrist s opinion and the ALJ erred by failing to The record contains only one mention of Dr. Multani, She is not Plaintiff asserts that this is a 10 address this opinion in his decision. 11 required to discuss all of the evidence in the record, but only that 12 which is significant and probative. 13 1393, 1394-95 (9th Cir. 1984). 14 unsupported by any treatment records and includes no analysis of 15 Plaintiff s functional limitations. 16 independently warrant reversal. However, the ALJ is not Vincent v. Heckler, 739 F.2d Dr. Multani s undated note is Accordingly, Issue Three does not 17 F. 18 In a letter dated September 8, 2009, Cynthia Lattavo, MFT, wrote 19 that Plaintiff ha[d] received psychotherapeutic treatment from [her] 20 since May 29, 2007 and that Plaintiff s symptoms were consistent 21 with panic disorder, obsessive-compulsive disorder, insomnia, and 22 major depression. [AR 379.] She stated that Plaintiff was resistant 23 to medication intervention and had physical symptoms that require[d] 24 medical attention. [Id.] She opined that Plaintiff had poor mental 25 and cognitive processing, and impaired ability to focus, learn, 26 comprehend, and that Plaintiff had an impaired memory and difficulty 27 with simple task completion. [Id.] 28 discounted Ms. Lattavo s opinion, stating that her opinion was ISSUE FOUR: THE TREATING CLINICIAN S OPINION In his decision, the ALJ 9 1 inconsistent with other medical evidence in the record and with 2 Plaintiff s own testimony. 3 discounted Ms. Lattavo s opinion. 4 Plaintiff asserts that the AlJ improperly Under the Social Security Regulations, a marriage and family 5 therapist is not an acceptable medical source. 20 C.F.R. § 416.913 6 (a)(1)-(5)(2009). 7 Lattavo less weight than those from acceptable medical sources. 8 v. Chater, 74 F.3d 967, 970-971 (9th Cir. 1996). 9 ALJ rejected Ms. Lattavo s opinions because he found them inconsistent The ALJ is entitled to give the opinions of Ms. Gomez In this case, the 10 with the medical record as a whole. However, in light of Issue Two, 11 it appears that the ALJ was not able to assess the record as a whole 12 when he evaluated Ms. Lattavo s opinion. 13 merits reversal and remand for evaluation of Ms. Lattavo s opinions in 14 light of the complete record. Accordingly, Issue Four 15 G. REMAND FOR FURTHER PROCEEDINGS 16 The decision whether to remand for further proceedings is within 17 the discretion of the district court. 18 1175-1178 (9th Cir. 2000). 19 further proceedings, or where the record has been fully developed, it 20 is appropriate to exercise this discretion to direct an immediate 21 award of benefits. 22 remand for further proceedings turns upon their likely utility). 23 However, where there are outstanding issues that must be resolved 24 before a determination can be made, and it is not clear from the 25 record that the ALJ would be required to find the claimant disabled if 26 all the evidence were properly evaluated, remand is appropriate. 27 Here, as set about above in Issues Two and Four, outstanding issues 28 remain before a finding of disability can be made. Harman v. Apfel, 211 F.3d 1172, Where no useful purpose would be served by Harman, 211 F.3d at 1179 (decision whether to 10 Accordingly, Id. 1 remand is appropriate. 2 VI. ORDERS 3 Accordingly, IT IS ORDERED that: 4 1. The decision of the Commissioner is REVERSED. 5 2. This action is REMANDED to Defendant, pursuant to Sentence 6 Four of 42 U.S.C. § 405(g), for further proceedings as discussed 7 above. 8 9 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 10 11 12 13 DATED: July 26, 2010 ______________________________ CARLA M. WOEHRLE United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.