Christopher Mosqueda v. Michael J Astrue, No. 5:2009cv01393 - Document 19 (C.D. Cal. 2010)

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. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (rp)

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Christopher Mosqueda v. Michael J Astrue Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER MOSQUEDA, 12 Plaintiff, 13 14 15 ) ) ) ) ) ) ) ) ) ) ) ) v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 16 Defendant. NO. EDCV 09-1393 SS MEMORANDUM DECISION AND ORDER 17 18 INTRODUCTION 19 20 Plaintiff Christopher Mosqueda ( Plaintiff ) brings this action 21 seeking to reverse and remand the decision of the Commissioner of the 22 Social Security Administration (the Commissioner or the Agency ) 23 denying his application for Supplemental Security Income ( SSI ) 24 benefits. The parties consented, pursuant to 28 U.S.C. § 636(c), to the 25 jurisdiction of the undersigned United States Magistrate Judge. For the 26 reasons stated below, the decision of the Commissioner is REVERSED and 27 REMANDED for further proceedings. 28 \\ Dockets.Justia.com PROCEDURAL HISTORY 1 2 3 On June 30, 2004, Plaintiff filed an application for SSI benefits 4 alleging a disability beginning on August 1, 1998. (Administrative 5 Record ( AR ) 38-41). 6 and again upon reconsideration on October 8, 2004. 7 Plaintiff then requested a hearing, which was held before Administrative 8 Law Judge ( ALJ ) F. Keith Varni on September 26, 2005. 9 Plaintiff appeared with counsel and testified. This application was denied on August 27, 2004, (AR 42, 49). (AR 20, 54). (AR 202-05). 10 Mosquda, Plaintiff s mother, also testified at the hearing. 11 Mary (AR 206- 09). 12 13 On December 9, 2005, the ALJ issued a decision denying benefits. 14 (AR 17-25). Plaintiff sought and was granted review of this decision 15 before the Appeals Council. 16 Council remanded the case to the ALJ for further proceedings. 17 The Appeals Council instructed the ALJ to evaluate Plaintiff s mental 18 impairment in accordance with the special technique described in 20 19 C.F.R. § 416.920a, develop the record regarding Plaintiff s mental 20 condition 21 functional capacity ( RFC ). and give further (AR 16). On March 8, 2006, the Appeals consideration to Plaintiff s (AR 12). residual (AR 13-14). 22 23 Thereafter, Plaintiff appeared and testified at a March 21, 2007 24 hearing before the ALJ. (AR 364-79). Vocational Expert Troy Scott (the 25 VE ) also testified. 26 a decision denying benefits. 27 requested a review of the hearing decision, which was denied by the (AR 380-82). On April 4, 2007, the ALJ issued (AR 215-24). 28 2 Thereafter, Plaintiff 1 Appeals Council on June 26, 2009. 2 instant 3 Management Order, the parties filed a Joint Stipulation ( Jt. Stip. ) 4 on May 14, 2010. action on July 29, (AR 211-13). 2009. Pursuant Plaintiff filed the to the Court s Case 5 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 6 7 8 To qualify for disability benefits, a claimant must demonstrate a 9 medically determinable physical or mental impairment that prevents him 10 from engaging in substantial gainful activity1 and that is expected to 11 result in death or to last for a continuous period of at least twelve 12 months. 13 42 U.S.C. § 423(d)(1)(A)). 14 incapable of performing the work he previously performed and incapable 15 of performing any other substantial gainful employment that exists in 16 the national economy. 17 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. 18 19 20 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 21 22 (1) Is the claimant presently engaged in substantial gainful 23 activity? If so, the claimant is found not disabled. 24 If not, proceed to step two. 25 26 27 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay 28 or profit. 20 C.F.R. § 416.910. 3 1 (2) Is the claimant s impairment 2 claimant is found not disabled. 3 severe? If not, the three. 4 (3) Does the claimant s If so, proceed to step impairment meet or equal the 5 requirements of any impairment listed at 20 C.F.R. Part 6 404, Subpart P, Appendix 1? 7 found disabled. 8 (4) 9 If not, proceed to step four. Is the claimant capable of performing his past work? so, the claimant is found not disabled. 10 11 If so, the claimant is If If not, proceed to step five. (5) Is the claimant able to do any other work? 12 claimant is found disabled. 13 If not, the If so, the claimant is found not disabled. 14 15 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 16 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. § 416.920(b)- 17 (g)(1). 18 19 The claimant has the burden of proof at steps one through four, and 20 the Commissioner has the burden of proof at step five. Bustamante, 262 21 F.3d at 953-54. 22 establishing an inability to perform the past work, the Commissioner 23 must show that the claimant can perform some other work that exists in 24 significant numbers in the national economy, taking into account the 25 claimant s RFC,2 age, education and work experience. 26 at 1100; 20 C.F.R. § 416.920(g)(1). If, at step four, the claimant meets his burden of 27 Tackett, 180 F.3d The Commissioner may do so by the 2 Residual functional capacity is the most [one] can still do despite [his] limitations and represents an assessment based on all 28 the relevant evidence. 20 C.F.R. § 416.945(a). 4 1 testimony of a vocational expert or by reference to the Medical- 2 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 3 Appendix 2 (commonly known as the Grids ). 4 F.3d 1157, 1162 (9th Cir. 2001). 5 (strength-related) 6 inapplicable and the ALJ must take the testimony of a vocational expert. 7 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). and Osenbrock v. Apfel, 240 When a claimant has both exertional nonexertional limitations, the Grids are 8 THE ALJ S DECISION 9 10 The ALJ employed the five-step sequential evaluation process. 11 At 12 step one, the ALJ found that Plaintiff had not engaged in substantial 13 gainful employment since the alleged onset date of his disability. 14 220). At step two, the ALJ found that Plaintiff did not have any severe 15 physical impairments. 16 suffered from depression, a personality disorder, and a history of drug 17 and alcohol abuse. (Id.). The ALJ noted Dr. Linda Smith s observations 18 of Plaintiff, including her statement that Plaintiff was far less than 19 a reliable historian or credible in his presentation and in his 20 complaints and not impaired from a psychiatric standpoint. (AR 222). 21 The ALJ also stated that there was no evidence at all of the amount of 22 severe [mental] problems that are mentioned . . . [by] Dr. Kunan. 23 (Id.). 24 impairments as severe at step two. 25 \\ 26 \\ 27 \\ 28 \\ Nevertheless, (Id.). the (AR However, the ALJ found that Plaintiff ALJ characterized 5 (AR 220). Plaintiff s mental 1 At step three, the ALJ found that Plaintiff s impairments, either 2 singly or in combination, did not meet or equal the requirements of any 3 impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 4 220). At step four, the ALJ determined that Plaintiff had no past 5 relevant work, a limited education, the ability to communicate in 6 English, and, at 32, was a younger individual. (AR (AR 223). 7 8 9 At step five, the ALJ found educational background, work that based on Plaintiff s age, experience, RFC, and testimony by a 10 vocational expert, there are a significant number of jobs in the 11 national economy that Plaintiff can perform, including work as an 12 automobile dishwasher. (Id.). 13 Accordingly, the ALJ found that Plaintiff was not disabled. (AR 215, 14 224). cleaner, building cleaner, or 15 STANDARD OF REVIEW 16 17 18 Under 42 U.S.C. § 405(g), a district court may review the 19 Commissioner s decision to deny benefits. The court may set aside the 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). 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 6 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 DISCUSSION 9 10 11 Plaintiff contends that the ALJ failed to evaluate Plaintiff s 12 mental impairment using the special technique described in 20 C.F.R. 13 § 416.920a. (Jt. Stip. at 3). Plaintiff further claims that the ALJ did 14 not properly consider the findings of the State Agency psychiatrist and 15 did not pose a complete hypothetical to the Vocational Expert. 16 9, 13). 17 Plaintiff could perform work in the national economy. (Id. at Finally, Plaintiff claims that the ALJ erred in finding that (Id. at 15). 18 The Court agrees with Plaintiff s first claim and therefore does 19 20 not reach his other three claims. For the reasons discussed below, the 21 Court finds that the ALJ s decision should be reversed and this action 22 remanded for further proceedings. 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ 7 1 The ALJ Failed To Follow The Regulations For Evaluating The 2 Severity Of Mental Impairments 3 Plaintiff claims that the ALJ failed to evaluate Plaintiff s mental 4 5 impairment in accordance with the Social Security Regulations. (Jt. 6 Stip. at 3). Specifically, Plaintiff contends that the ALJ erred by not 7 applying the special technique described in 20 C.F.R. § 416.920a. Id. 8 This Court agrees. 9 10 When a plaintiff raises a colorable claim of mental impairment, the 11 ALJ must follow a special technique to evaluate the plaintiff s 12 limitations. 13 technique at each level in the administrative review process ). The ALJ 14 must evaluate the plaintiff s claims and incorporate the pertinent 15 findings and conclusions into his decision. 16 show the significant history, including examination and laboratory 17 findings, 18 reaching a conclusion about the severity of the mental impairment(s). 19 The decision must include a specific finding as to the degree of 20 limitation in each of the functional areas. ). 21 medically determinable impairment, the ALJ must rate the degree of 22 functional limitation resulting from the impairment(s) for the four 23 broad functional areas: activities of daily living; social functioning; 24 concentration, persistence and pace; and episodes of decompensation. 25 20 C.F.R. § 404.1520a(b)(2), (c)(3). 26 \\ 27 \\ 28 \\ and 20 C.F.R. § 416.920a (2006) ( [W]e must follow a special the functional limitations 8 Id. ( The decision must that were considered in If the claimant has a 1 An ALJ s failure to follow the required procedure mandates remand 2 if the claimant has a colorable claim of a mental impairment. 3 Gutierrez v. Apfel, 199 F.3d 1048, 1051 (9th Cir. 2002) (holding that, 4 where there is a colorable claim of mental impairment, the ALJ must 5 strictly follow regulations for evaluating mental impairment); see also 6 Selassie 7 ( Specifically, the regulation requires the ALJ s decision to include 8 a specific finding as to the degree of limitation in each of the 9 functional areas described in the regulation ) (citing 20 C.F.R. 10 § 404.1520a(e)(2)); Behn v. Barnhart, 463 F. Supp. 2d 1043, 1047 (C.D. 11 Cal. 2006) (remanding for the ALJ s failure to analyze the plaintiff s 12 functional limitations). 13 insubstantial, immaterial, or frivolous. 14 791, 795 (9th Cir. 1987). Amendments to the Social Security regulations 15 since Gutierrez have given the ALJ greater discretion in deciding how 16 to publish the mandated findings, but even the amended version requires 17 the ALJ to follow the special technique, document application of the 18 technique in the decision, and include specific findings as to the 19 degree of limitation in each of the functional areas. 20 § 404.1520a(e). 21 so harmless error if this failure is inconsequential to the ALJ s 22 ultimate decision. 23 1055 (9th Cir. 2006). v. Barnhart, 203 Fed. App x 174, 176 (9th Cir. 2006) A colorable claim is one which is not wholly Cassim v. Bowen, 824 F.2d 20 C.F.R. This Court will only consider the ALJ s failure to do Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 24 Plaintiff has a colorable claim of mental impairment. 25 separate medical experts support 26 two 27 impairment, (AR 164, 195-96) but the ALJ himself found that Plaintiff 28 has severe mental impairments including depression, a personality 9 Plaintiff s claim Not only do of mental 1 disorder, and a history of substance abuse. (AR 220). The ALJ states 2 that these mental impairments are severe enough to impede Plaintiff s 3 ability to perform all or substantially all of the requirements of work 4 at any level. 5 of mental impairment, the ALJ must follow the special technique to 6 evaluate the degree of Plaintiff s limitation in each of the functional 7 areas. (AR 223). Because Plaintiff presents a colorable claim Gutierrez, 199 F.3d at 1051. 8 9 It is undisputed that the ALJ s decision does not include specific 10 findings related to the four functional areas described in the 11 regulations. (Jt. Stip. at 8) ( Admittedly, the ALJ did not specify the 12 degree of Plaintiff s limitations in the four broad functional areas . 13 . . . ). 14 even if the ALJ had applied the technique, he would have arrived at the 15 same conclusion and found that Plaintiff did not meet a listing-level 16 impairment. 17 WL 1041443 at *1 (9th Cir. March 22, 2010), to support this proposition, 18 relying upon the Court s statement that in certain circumstances, the 19 failure to explicitly use the special technique may constitute harmless 20 error. The Commissioner argues that this error was harmless, because (Id.). The Commissioner cites Gunderson v. Astrue, 2010 (Jt. Stip. at 9). 21 22 However, the Commissioner s reliance upon this decision is 23 misplaced. In Gunderson, the court specifically found remand necessary 24 despite the Plaintiff s concession that even if the ALJ had adhered to 25 the requirements of the special technique, the plaintiff could not meet 26 a listing-level impairment at step three. 27 at *3. 28 would have arrived at the same conclusion regarding [the plaintiff s] Gunderson, 2010 WL 1041443 Remand was required because it was not clear whether the ALJ 10 1 residual functional capacity (RFC) to perform work had the ALJ adhered 2 to the requirements of section 404.1520a. Id. at *1. 3 4 In this case, it is similarly impossible to determine whether the 5 ALJ would have arrived at the same conclusion regarding Plaintiff s RFC 6 had the ALJ followed the special technique. 7 1041443 at *3. 8 ALJ s failure to adhere to the regulations. 9 contains no specific findings regarding Plaintiff s degree of limitation 10 in the four functional areas by which disabling conditions are rated, 11 the Court cannot determine whether there is substantial evidence for 12 the ALJ s conclusion that [Plaintiff s] impairment, while severe, was 13 not as severe as any listed disabling condition. Kohler v. Astrue, 546 14 F.3d 260, 267-68 (2d Cir. 2008) (citing Gutierrez, 199 F.3d at 1051). 15 Therefore, the failure to use the special technique was not harmless 16 here. See Gunderson, 2010 WL Effective review by this Court is frustrated by the Because the decision 17 As 18 a general rule, remand is warranted where additional 19 administrative proceedings could remedy defects in the Commissioner s 20 decision. 21 Here, 22 impairment using the procedures set out in 20 C.F.R. § 1520a and perform 23 the subsequent steps of the analytical process in light of the new 24 mental impairment evaluation. 25 \\ 26 \\ 27 \\ 28 \\ See Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000). remand will allow the ALJ to evaluate Plaintiff s See Gutierrez, 199 F.3d at 1051. 11 mental CONCLUSION 1 2 Consistent with the foregoing, IT IS ORDERED that judgment be 3 entered REVERSING the decision of the Commissioner and REMANDING this 4 matter for further proceedings consistent with this decision. 5 FURTHER ORDERED that the Clerk of the Court serve copies of this Order 6 and the Judgment on counsel for both parties. IT IS 7 8 DATED: June 30, 2010 9 10 11 12 ________/S/____________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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