Mohammad Hasan Alsyouf v. Michael J Astrue, No. 5:2009cv01828 - Document 16 (C.D. Cal. 2011)
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. The Clerk of the Court shall serve copies of this Order and the Judgment on counsel for both parties. (rp)
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Mohammad Hasan Alsyouf v. Michael J Astrue Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MOHAMMAD HASAN ALSYOUF, 12 Plaintiff, 13 14 15 ) ) ) ) ) ) ) ) ) ) ) ) v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 16 Defendant. NO. EDCV 09-01828 SS MEMORANDUM DECISION AND ORDER 17 INTRODUCTION 18 19 20 Plaintiff the (“Plaintiff”) is seeking to overturn the decision 21 of Commissioner 22 (hereinafter 23 application for Supplemental Security Income. 24 asks for a remand. 25 U.S.C. § 636(c), to the jurisdiction of the undersigned United 26 States Magistrate Judge. 27 Order, the parties filed a joint stipulation (“Jt. Stip.”) on 28 October 17, 2007. the of the “Commissioner” Social or Security the Administration “Agency”) denying his Alternatively, he The parties have consented, pursuant to 28 Pursuant to the Court’s Case Management For the reasons stated below, the decision of Dockets.Justia.com 1 the Commissioner is REVERSED and the case is REMANDED for further 2 proceedings consistent with this decision. 3 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 4 5 6 To qualify for disability benefits, a claimant must 7 demonstrate a medically determinable physical or mental impairment 8 that prevents him from engaging in substantial gainful activity1 9 and that is expected to result in death or to last for a continuous 10 period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 11 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 12 impairment must render the claimant incapable of performing the 13 work he previously performed and incapable of performing any other 14 substantial gainful employment that exists in the national economy. 15 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 16 U.S.C. § 423(d)(2)(A)). The 17 18 To decide if a claimant is entitled to benefits, an ALJ 19 conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The 20 steps are: 21 22 (1) Is the claimant presently engaged in substantial 23 gainful activity? 24 disabled. If so, the claimant is found not If not, proceed to step two. 25 26 27 28 1 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. 2 1 (2) Is the claimant’s impairment severe? 2 claimant is found not disabled. 3 step three. 4 (3) If not, the If so, proceed to Does the claimant’s impairment meet or equal one of 5 list of specific impairments described in 20 C.F.R. 6 Part 7 claimant is found disabled. 8 step four. 9 (4) 404, Subpart P, Appendix work? 11 If not, proceed to step five. (5) If so, the If not, proceed to Is the claimant capable of performing his past 10 12 1? If so, the claimant is found not disabled. Is the claimant able to do any other work? 13 the claimant is found disabled. 14 claimant is found not disabled. If If not, so, the 15 16 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 17 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. §§ 18 404.1520(b)-(g)(1) & 416.920(b)-(g)(1). 19 20 The claimant has the burden of proof at steps one through 21 four, and the Commissioner has the burden of proof at step five. 22 Bustamante, 262 F.3d at 953-54. 23 meets his burden of establishing an inability to perform past work, 24 the Commissioner must show that the claimant can perform some other 25 work that exists in “significant numbers” in the national economy, 26 taking into account the claimant’s residual functional capacity If, at step four, the claimant 27 28 3 1 (“RFC”),2 age, education, and work experience. 2 at 3 404.1520(g)(1), 416.920(g)(1). 4 testimony of a vocational expert or by reference to the Medical- 5 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 6 Appendix 2 (commonly known as “the Grids”). 7 240 F.3d 1157, 1162 (9th Cir. 2001). 8 exertional (strength-related) and nonexertional limitations, the 9 Grids are inapplicable and the ALJ must take the testimony of a 1098, 1100; 10 vocational expert. 11 2000). Reddick, 157 F.3d at Tackett, 180 F.3d 721; 20 C.F.R. §§ The Commissioner may do so by the Osenbrock v. Apfel, When a claimant has both Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 12 STANDARD OF REVIEW 13 14 15 Under 42 U.S.C. § 405(g), a district court may review the 16 Commissioner’s decision to deny benefits. 17 the Commissioner’s decision when the ALJ’s findings are based on 18 legal error or are not supported by substantial evidence in the 19 record as a whole. 20 Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v. 21 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen, 885 F.2d 22 597, 601 (9th Cir. 1989)). Aukland v. The court may set aside Massanari, 257 F.3d 1033, 1035 (9th Chater, 23 24 25 26 27 28 2 Residual functional capacity is “what [one] can still do despite [his] limitations” and represents an “assessment based upon all of the relevant evidence.” 20 C.F.R. §§ 404.1545(a), 416.945(a). 4 1 “Substantial evidence is more than a scintilla, but less than 2 a preponderance.” 3 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 4 evidence which a reasonable person might accept as adequate to 5 support a conclusion.” 6 Smolen, 7 evidence supports a finding, the court must “‘consider the record 8 as a whole, weighing both evidence that supports and evidence that 9 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 10 at 1035 (citing Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 11 1993)). If the evidence can reasonably support either affirming or 12 reversing 13 judgment for that of the Commissioner. Reddick, 157 F.3d at 720-21 14 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)). 80 F.3d that Reddick, 157 F.3d at 720 (citing Jamerson v. at It is “relevant Id. (citing Jamerson, 112 F.3d at 1066; 1279). conclusion, To the determine court may whether not substantial substitute its 15 DISCUSSION 16 17 18 19 A. The ALJ Erred By Concluding At Step Two That Plaintiff’s Mental Impairment Was “Non-Severe” 20 21 Plaintiff argues that the ALJ erred by failing to properly 22 assess Plaintiff’s residual functional capacity. 23 3). In particular, Plaintiff contends that the ALJ ignored records 24 regarding Plaintiff’s mental impairment. 25 reasons discussed below, the Court finds that the ALJ failed to 26 properly assess Plaintiff’s mental health impairment. 27 28 5 (Jt. Stip. at 2- (Id. at 2-5). For the 1 By its own terms, the evaluation at step two is a de minimis 2 test intended to weed out the most minor of impairments. 3 v. Yuckert, 482 U.S. 137, 153-154, 107 S. Ct. 2287, 96 L. Ed. 2d 4 119 (1987); Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 5 2001)(stating that the step two inquiry is a de minimis screening 6 device to dispose of groundless claims)(quoting Smolen, 80 F.3d at 7 1290). 8 establishes “a slight abnormality that has no more than a minimal 9 effect on an individual’s ability to work.” 10 An impairment is not severe only if See Bowen the evidence Smolen, 80 F.3d at 1290 (internal quotations and citations omitted). 11 12 The ALJ here applied more than a de minimis test when he 13 determined that Plaintiff’s mental impairment was not severe. 14 Moreover, he failed to follow the Secretary’s own regulations 15 governing the evaluation of mental impairments, as described below. 16 17 Where there is evidence of a mental impairment that allegedly 18 prevents the plaintiff from working, the Agency has supplemented 19 the 20 regulations.3 21 913, 914-15 (9th Cir. 1998)(citing 20 C.F.R. § 416.920a)(per 22 curiam). 23 certain medical findings relevant to the plaintiff’s ability to 24 work. five-step sequential evaluation process with additional Maier v. Comm’r of the Soc. Sec. Admin., 154 F.3d First, the ALJ must determine the presence or absence of 20 C.F.R. § 416.920a(b)(1). Second, when the plaintiff 25 3 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. 6 1 establishes these medical findings, the ALJ must rate the degree of 2 functional loss resulting from the impairment by considering four 3 areas of function: (a) activities of daily living; (b) social 4 functioning; (c) concentration, persistence, or pace; and (d) 5 episodes 6 Third, after rating the degree of loss, the ALJ must determine 7 whether the claimant has a severe mental impairment. 8 416.920a(d). 9 severe, the ALJ must determine if it meets or equals a listing in of C.F.R. decompensation. 20 C.F.R. § 416.920a(c)(2)-(4). 20 C.F.R. § Fourth, when a mental impairment is found to be 10 20 Part 404, Subpart P, Appendix 1. 20 C.F.R. 11 416.920a(d)(2). 12 then assess the plaintiff’s RFC, and the ALJ’s decision “must 13 incorporate the pertinent findings and conclusions” regarding he 14 plaintiff’s mental impairment, including “a specific finding as to 15 the degree of limitation in each of the functional areas described 16 in [§ 416.920a(c)(3)].” Finally, if a listing is not met, the ALJ must 20 C.F.R. § 416.920a(d)(3), (e)(2). 17 18 The regulations describe an impairment as follows: 19 physical § 20 A or 21 anatomical, physiological, or psychological abnormalities 22 which can be shown by medically acceptable clinical and 23 laboratory diagnostic techniques. 24 impairment 25 consisting of signs, symptoms, and laboratory findings, 26 not only by [a plaintiff’s] statements of symptoms. must mental be impairment established 27 28 7 must result from A physical or mental by medical evidence 1 20 C.F.R. § 416.908; see also Ukolov v. Barnhart, 420 F.3d 1002, 2 1005 (9th Cir. 2005) (noting that the existence of a medically 3 determinable physical or mental impairment may only be established 4 with objective medical findings) (citing Social Security Ruling 96- 5 4p, 1996 WL 374187 at *1-2). 6 7 In a March 2004 report, Marilyn Neudeck-Dicken, a psychologist 8 and a Board 9 Plaintiff’s Certified expert posttraumatic that in stress Stress, disorder. stationary” and that he would need therapeutic support over the 12 course of many years. 13 Dicken assessed Plaintiff with a GAF of 41-50, indicative of 14 serious symptomatology and limitations. 15 Dr. McDaniel, a psychiatrist, completed an evaluation and report of 16 Plaintiff. Dr. McDaniel noted that Plaintiff’s treating doctor had 17 prescribed the antidepressant Remeron, anti-anxiety medication, 18 i.e., 19 antidepressant. 20 Plaintiff’s psychiatric disability was “minimal to very slight”, 21 unless Plaintiff returned to retail position which would cause it 22 to rise to a moderate to severe level. well (Id. at as “permanent and On May 29, 2003, Dr. Neudeck- Gabitril 338). not She 11 (AR 236). was 234). concluded as condition (AR evaluated 10 Xanax, Plaintiff’s Traumatic Dr. (AR 238-243). and In 2004, Effexor, McDaniel another concluded that (Id. at 350-351). 23 24 Dr. Joel Frank, a psychiatrist, evaluated Plaintiff on May 17, 25 2005, with the assistance of psychologist Gale J. Schuler. 26 396). 27 Disorder, Chronic. 28 disorder was resolved. (AR Dr. Frank diagnosed Plaintiff with Post-Traumatic Stress Notably, Dr. Frank did not conclude that this Dr. Frank also diagnosed Plaintiff with a 8 1 depressive disorder. (AR 406). Although Dr. Frank concluded that 2 Plaintiff’s limitations were “slight to moderate”, he also found 3 that Plaintiff would require access to future psychiatric treatment 4 and should have access to psychotropic medication management. 5 6 These objective from a medical mental findings health indicate impairment. that See 20 Plaintiff 7 suffered C.F.R. § 8 416.927(a)(2) (“Medical opinions . . . that reflect judgments about 9 the nature and severity of [a plaintiff’s] impairment(s), including 10 symptoms, diagnosis and prognosis,” are evidence that a plaintiff 11 may submit in support of his disability claim). 12 failed to follow the Secretary’s regulations for evaluating mental 13 impairments. 14 recognized as a de minimis test designed to identify and dismiss 15 only frivolous claims, the ALJ found that Plaintiff’s mental 16 impairment was not severe based in part on the fact that Plaintiff 17 had not suffered any psychiatric hospitalizations. 18 claimant may suffer from a mental impairment without having been 19 hospitalized for that limitation. 20 applied more than a de minimis test and his conclusion at step two 21 that Plaintiff does not suffer from a severe mental impairment was 22 error. The ALJ, however, Moreover, although the step-two analysis has been (AR 49). A Thus, it appears that the ALJ See 20 C.F.R. § 416.920a(b)(1). 23 24 Remand for further proceedings is appropriate where additional 25 proceedings could remedy defects in the Commissioner’s decision. 26 See Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000); Kail v. 27 Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). 28 9 Because the ALJ 1 improperly evaluated Plaintiff’s mental health impairment at step 2 two, the case must be remanded to remedy this defect. 3 4 Upon remand, the ALJ must conduct the supplemental evaluation 5 of mental impairment evidence. 6 determine the presence or absence of certain medical findings 7 relevant 8 416.920a(b)(1). 9 objective medical evidence that Plaintiff suffers from a mental to the plaintiff’s Normally, the ALJ must first ability to work. 20 C.F.R. § However, this Court has determined that there is 10 impairment relevant to his ability to work. Thus, the ALJ need not 11 address this question. Accordingly, the ALJ must only complete the 12 remaining inquiries required in the supplemental evaluation of 13 mental impairment evidence.4 14 \\ 15 \\ 16 \\ 17 18 19 20 21 22 23 24 25 26 27 28 4 Specifically, the ALJ must rate the degree of functional loss resulting from the impairment by considering four areas of function: (a) activities of daily living; (b) social functioning; (c) concentration, persistence, or pace; and (d) episodes of decompensation. 20 C.F.R. § 416.920a(c)(2)-(4). Next, after rating the degree of loss, the ALJ must determine whether the claimant has a severe mental impairment. 20 C.F.R. § 416.920a(d). If the mental impairment is found to be severe, the ALJ must determine if it meets or equals a listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. § 416.920a(d)(2). Finally, if a listing is not met, the ALJ must then assess the plaintiff’s RFC, and the ALJ’s decision “must incorporate the pertinent findings and conclusions” regarding he plaintiff’s mental impairment, including “a specific finding as to the degree of limitation in each of the functional areas described in [§ 416.920a(c)(3)].” 20 C.F.R. § 416.920a(d)(3), (e)(2). 10 B. 1 The ALJ Erred By Relying Solely On The Grids To Determine Whether Plaintiff Is Disabled 2 3 4 To determine if substantial gainful work exists for the 5 claimant, an ALJ may use the Medical-Vocational Guidelines 6 ("grids") to consider claimants with substantially uniform levels 7 of impairment. Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 8 1988). 9 abilities and limitations, such as when the claimant has both 10 exertional and significant nonexertional limitations (as is the 11 case in the instant claim), the grids are inapplicable and the ALJ 12 must take the testimony of a VE. Id.; see also Cooper v. Sullivan, 13 880 F.2d 1152, 1155 (9th Cir. 1989). When the grids do not completely describe the claimant's 14 15 Examples of non-exertional limitations where use of the Grids 16 may be inappropriate are: poor vision, see Tackett v. Apfel, 180 17 F.3d 1094, 1101-02 (9th Cir. 1999); pain, see Perminter v .Heckler, 18 765 19 postural, 20 tolerate dust or fumes) limitations.’” Burkhart v. Bowen, 856 F.2d 21 1335, 1340-41 (9th Cir. 1988) (quoting Desrosiers v. Secretary of 22 Health and Human Services, 846 F.2d 573, 579 (9th Cir. 1988)). 23 When a claimant has “significant non-exertional limitations,” the 24 ALJ cannot rely solely on the grids. 25 1071, 1075 (9th Cir. 2007); see also Burkhart, 856 F.2d at 1340 26 (“the grids are inapplicable [w]hen a claimant’s non-exertional 27 limitations are sufficiently severe so as to significantly limit F.2d 870, 872, (9th manipulative, or Cir. 1985); and environmental 28 11 “‘mental, (e.g., sensory, inability to Hoopai v. Astrue, 499 F.3d 1 the range of work permitted by the claimant’s 2 limitations.” )(internal quotations omitted). exertional 3 4 5 In Dr. Adeyemo’s report, analyzing Plaintiff’s mental impairments, the doctor concluded: 6 7 Claimant has difficulty understanding, retaining and 8 executing 9 impairment of his concentration and short term memory . 10 . . He will have difficulty responding appropriately to 11 co-workers, supervisors and the public because of the 12 significant Depressive and Anxiety Spectrum symptoms. 13 For the same reason [h]e will have difficulty responding 14 appropriately to usual work situations. simple instructions because of moderate 15 16 (AR 30). 17 18 In Dr. McDaniel’s 2004 report, the doctor stated: 19 20 I would preclude this individual from returning to his 21 usual and customary job as returning to a retail position 22 would cause his symptomatology to rise to a moderate to 23 severe level creating incapacity for working in a retail 24 situation. Outside a 25 symptomatology would considered 26 slight. be 27 28 (AR 350-351). 12 retail situation, minimal to his very 1 The ALJ, after consulting the grids, found that Plaintiff 2 could perform the “full range of sedentary work.” (AR 56). 3 However, given the significant non-exertional limitations described 4 above, it was error for the ALJ to rely solely on the grids. 5 remand, in addition to reevaluating Plaintiff’s RFC with the 6 finding that Plaintiff’s mental impairment is severe, at step two, 7 the ALJ must obtain testimony from a vocational expert, who can 8 consider the record evidence concerning both exertional and non- 9 exertional limitations of Plaintiff. Upon 10 11 C. The ALJ Failed To Provide Clear And Convincing 12 Reasons To Reject Plaintiff’s Subjective Pain 13 Testimony 14 15 The ALJ may reject a plaintiff’s testimony if he or she makes 16 an explicit credibility finding that is “supported by a specific, 17 cogent reason for the disbelief.” 18 1229, 1231 (9th Cir. 1990) (internal citations omitted). 19 there 20 malingering, 21 testimony must be “clear and convincing.” 22 Moreover, the ALJ may not discredit a claimant's testimony of pain 23 and deny disability benefits solely because the degree of pain 24 alleged by the claimant is not supported by objective medical 25 evidence. 26 1991). is affirmative the evidence ALJ’s Rashad v. Sullivan, 903 F.2d showing reasons for that the rejecting Unless plaintiff the is plaintiff’s Lester, 81 F.3d at 834. Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 27 28 13 1 Plaintiff provided testimony regarding his symptoms and pain. 2 (AR 550-561). 3 problems (AR 550-51); pain in his neck, low back and left leg (AR 4 551-52); 5 decreased memory, concentration, and fear of people (AR 557); he 6 suffers from nightmares and flashbacks of the shooting (AR 558); 7 and that after 3 hours of sitting/standing/walking, he has to lay 8 down for 1-2 hours. 9 that must Plaintiff testified that he has concentration lay Plaintiff’s down for (AR 560). daily 4-6 hours each day (AR 552-53); The ALJ relied solely on the reason activities were inconsistent with his 10 statements regarding his limitations. (AR 50). This single reason 11 for rejecting Plaintiff’s testimony was insufficient to reject the 12 entirety of Plaintiff’s subjective complaints and does not qualify 13 as 14 Plaintiff’s daily activities was inconsistent and not a convincing 15 reason, on its own, to reject his testimony. 16 action must be remanded on this ground as well. 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ a “clear and convincing reason.” 14 The evidence regarding Accordingly, the CONCLUSION 1 2 3 Consistent with the foregoing, IT IS ORDERED that Judgment be 4 entered REVERSING the decision of the Commissioner and REMANDING 5 this action for further proceedings consistent with this decision. 6 The Clerk of the Court shall serve copies of this Order and the 7 Judgment on counsel for both parties. 8 9 DATED: January 21, 2011 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 15
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