Mauricio Villareal Jr v. Michael J Astrue, No. 5:2010cv01124 - Document 15 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION and ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is GRANTED; (2) the decision of the Commissioner is REVERSED; and (3) this action is REMANDED to defendant for furthe r proceedings consistent with this Memorandum Opinion. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. **See Order for details.** (ch)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 MAURICIO VILLARREAL, JR., 13 Plaintiff, 14 15 v. 16 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 10-1124-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on August 11, 2010, seeking review of the Commissioner s denial 22 of his application for Disability Insurance Benefits. The parties filed Consents to proceed before 23 the undersigned Magistrate Judge on August 20, 2010, and August 23, 2010. Pursuant to the 24 Court s order, the parties filed a Joint Stipulation on April 5, 2011, that addresses their positions 25 concerning the disputed issues in the case. The Court has taken the Joint Stipulation under 26 submission without oral argument. 27 / 28 / 1 II. 2 BACKGROUND 3 Plaintiff was born on September 22, 1980. [Administrative Record ( AR ) at 36, 95.] He 4 has a high school education and has past work experience as a warehouse worker and forklift 5 operator. [AR at 98-104.] 6 Plaintiff protectively filed his application for Disability Insurance Benefits on January 19, 7 2007,1 alleging that he had been unable to work since June 21, 2006, due to mental health 8 problems. [AR at 9, 95-104.] After his application was denied initially and on reconsideration, 9 plaintiff requested a hearing before an Administrative Law Judge ( ALJ ). [AR at 40-52.] A 10 hearing was held on September 8, 2008, at which plaintiff appeared with counsel and testified on 11 his own behalf. [AR at 16-35.] A medical expert and plaintiff s mother also testified. [AR at 25- 12 35.] On October 15, 2008, the ALJ issued an unfavorable decision. [AR at 6-15.] On June 24, 13 2010, the Appeals Council denied plaintiff s request for review of the hearing decision. [AR at 1-3.] 14 Plaintiff then filed this action. 15 16 III. 17 STANDARD OF REVIEW 18 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner s 19 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 20 evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 21 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 22 In this context, the term substantial evidence means more than a mere scintilla but less 23 than a preponderance -- it is such relevant evidence that a reasonable mind might accept as 24 adequate to support the conclusion. Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 25 1257. When determining whether substantial evidence exists to support the Commissioner s 26 27 28 1 A Field Office Disability Report dated January 19, 2007, lists plaintiff s Protective Filing Date as January 19, 2007. [AR at 95-97.] The ALJ stated that plaintiff filed his application for Disability Insurance Benefits on January 18, 2007. [AR at 9.] 2 1 decision, the Court examines the administrative record as a whole, considering adverse as well 2 as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th 3 Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court 4 must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 5 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258. 6 7 IV. 8 EVALUATION OF DISABILITY 9 Persons are disabled for purposes of receiving Social Security benefits if they are unable 10 to engage in any substantial gainful activity owing to a physical or mental impairment that is 11 expected to result in death or which has lasted or is expected to last for a continuous period of at 12 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257. 13 14 A. THE FIVE-STEP EVALUATION PROCESS 15 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 16 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 17 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must 18 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 19 claimant is not disabled, and the claim is denied. Id. If the claimant is not currently engaged in 20 substantial gainful activity, the second step requires the Commissioner to determine whether the 21 claimant has a severe impairment or combination of impairments significantly limiting his ability 22 to do basic work activities; if not, a finding of nondisability is made, and the claim is denied. Id. 23 If the claimant has a severe impairment or combination of impairments, the third step requires 24 the Commissioner to determine whether the impairment or combination of impairments meets or 25 equals an impairment in the Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 404, 26 Subpart P, Appendix 1; if so, disability is conclusively presumed, and benefits are awarded. Id. 27 If the claimant s impairment or combination of impairments does not meet or equal an impairment 28 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 3 1 sufficient residual functional capacity ( RFC )2 to perform his past work. If the claimant has an 2 RFC sufficient to perform his past work, the claimant is not disabled, and the claim is denied. 20 3 C.F.R. §§ 404.1520, 416.920. The claimant has the burden of proving that he is unable to perform 4 past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie 5 case of disability is established. Id. The Commissioner then bears the burden of establishing that 6 the claimant is not disabled, because he can perform other substantial gainful work available in 7 the national economy. Id. The determination of this issue comprises the fifth and final step in the 8 sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d 9 at 1257. 10 11 B. THE ALJ S APPLICATION OF THE FIVE-STEP PROCESS 12 In this case, at step one, the ALJ concluded that plaintiff has not engaged in any substantial 13 gainful activity since June 21, 2006, the alleged onset date of disability.3 [AR at 11.] At step two, 14 the ALJ concluded that plaintiff has the following non-severe medically determinable impairments: 15 mood disorder and polysubstance disorder in early remission. [AR at 11-15.] Finding plaintiff s 16 impairments non-severe, the ALJ determined that plaintiff was not disabled as of June 21, 2006, 17 through the date of the decision, October 15, 2008. The ALJ did not proceed to the remaining 18 steps in the sequential analysis. [AR at 15.] 19 20 V. 21 THE ALJ S DECISION 22 Plaintiff contends that the ALJ failed to: (1) properly consider the treating psychiatrist s 23 24 25 26 2 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 27 3 28 The ALJ also found plaintiff insured for Disability Insurance Benefits purposes through December 31, 2010. [AR at 11.] 4 1 opinion and Global Assessment of Functioning ( GAF )4 scores, (2) make proper credibility 2 findings and properly consider plaintiff s subjective symptoms, (3) find that plaintiff s mental 3 condition is severe. [See Joint Stipulation ( JS ) at 2-8, 12-15, 18-22.] As set forth below, the 4 Court agrees with plaintiff and remands the matter for further proceedings. 5 6 A. PLAINTIFF S MENTAL IMPAIRMENT 7 Plaintiff argues that the ALJ erred in finding his mental impairment not severe. Specifically, 8 plaintiff contends that the ALJ did not properly consider his treating psychiatrist s opinion and 9 assignment of GAF scores. 10 The record reveals that plaintiff has a long history of mental health treatment. Plaintiff 11 suffered a period of depression in 1999 when he served in the army for nine months; he reportedly 12 tried very hard [in the army,] but [was] severely criticized as not good enough, experienced 13 suicidal ideation, and was discharged. [AR at 127, 131, 166.] The record details plaintiff s mental 14 heath treatment beginning on December 6, 2006, continuing through July 18, 2008. [AR at 125- 15 33, 148-56, 160-210.] 16 On December 6, 2006, plaintiff underwent a clinical assessment at the San Bernardino 17 County Department of Behavioral Health at which he complained of low self-esteem, sadness, 18 thoughts of dying, isolation, loss of interest in people and his social environment, inability to find 19 or maintain a job, paranoia that people talk about him and believe that he should shoot himself, 20 impaired family and occupational functioning due to depression, difficulty getting along with others, 21 oversleeping, and overeating. [AR at 125-28.] Plaintiff reported that he wanted to shoot himself, 22 but that he did not have a gun and that suicide was against his religious beliefs. [AR at 126, 129.] 23 Plaintiff s mother attended the assessment and stated that plaintiff had been depressed, isolat[ed] 24 in his room, asocial, and suffering from very low self-esteem for about one year. [AR at 129.] 25 26 27 28 4 A GAF score is the clinician s judgment of the individual s overall level of functioning. It is rated with respect only to psychological, social, and occupational functioning, without regard to impairments in functioning due to physical or environmental limitations. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders ( DSM-IV ), at 32 (4th Ed. 2000). 5 1 At that time, plaintiff had not taken any psychotropic medications, but reported previously using 2 alcohol, cocaine, marijuana, and methamphetamine.5 [AR at 125.] According to the assessment, 3 plaintiff appeared paranoid, psychotic, preoccupied, and depressed and had poor insight, poor 4 judgment, and a flat affect. [AR at 128.] Plaintiff was diagnosed with Major Depressive Disorder, 5 Recurrent, Severe with Psychotic Features, alcohol dependence, amphetamine dependence, and 6 cocaine dependence, and was assessed a GAF score of 43.6 [AR at 130.] 7 On January 16, 2007, Dr. Sean Faire performed a psychiatric evaluation at which plaintiff 8 continued to complain of depression, but reported great improvement in his mood and decreased 9 negative thoughts since beginning to take medications two months earlier. [AR at 131.] Plaintiff 10 reported experiencing suicidal ideation, but no suicide attempts, over the previous year. [AR at 11 131.] Plaintiff sought prescriptions for refills of his medications. [AR at 131.] According to Dr. 12 Faire s report, plaintiff was occasionally still drinking alcohol, but had stopped using cocaine, 13 marijuana, and methamphetamine. [AR at 131.] Dr. Faire evaluated plaintiff s insight and 14 judgment as fair; diagnosed plaintiff with major depression recurrent with psychotic features, 15 alcohol dependence, and cocaine dependence; assessed plaintiff with a GAF score of 45;7 and 16 prescribed refills of plaintiff s medications. [AR at 132.] After failing to attend four medication visits 17 scheduled with Dr. Faire, plaintiff attended an April 4, 2007, medication visit at which Dr. Faire 18 observed plaintiff s very good affect and noted that plaintiff reported improved mood and no 19 recent auditory hallucinations. [AR at 149-53.] 20 21 22 23 24 25 26 27 28 5 The dates on which plaintiff reported last using cocaine and methamphetamine are difficult to decipher from the record, i.e., whether he last used the substances months or years earlier. [AR at 125.] However, it is clear from the record that plaintiff reported at the December 6, 2006, treatment visit that he last used alcohol two weeks earlier and that he last used marijuana in 2000. [AR at 125.] 6 A GAF score of 41-50 denotes [s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). DSM-IV, at 34. 7 See supra note 6. 6 1 Soon after, however, on April 12, 2007, plaintiff was held at Arrowhead Regional Medical 2 Center under California Welfare and Institutions Code section 5150, because he posed a danger 3 to himself. [AR at 204.] Plaintiff reported choking himself approximately two-and-one-half years 4 earlier and alleged that he had attempted to kill himself earlier that day. [AR at 204, 209.] Plaintiff 5 reported a history of auditory and visual hallucinations and stated that his medications alleviated 6 his hallucinations, but that he had not taken his medications that day or the day before. [AR at 7 209.] According to a Suicidality Assessment of plaintiff s condition, plaintiff experienced recurrent 8 suicidal ideation, recurrent depression, and current substance and alcohol abuse. [AR at 204.] 9 While plaintiff appeared alert and to have intact memory, he was depressed, had a restricted 10 affect, and reported having extreme fears and being shaken up. [AR at 205, 209.] His thought 11 form/content was slowed, guarded, and restricted and evidenced thought blocking and 12 paucity of content. [AR at 205.] He exhibited psychotic symptoms, including paranoid delusions 13 and auditory hallucinations. [AR at 205.] The admitting physician described plaintiff as having a 14 grave disability involving emotional disorganization, diagnosed him with Schizoaffective 15 Disorder,8 and assessed him with a GAF score of 30.9,10 [AR at 206-07.] The record indicates that 16 at a medication visit two months later on June 12, 2007, plaintiff reported doing very well on his 17 medication regimen, and Dr. Faire noted that plaintiff continue[d] to hold gains in mood stability. 18 [AR at 167.] 19 20 21 22 23 24 8 The admitting physician also assigned plaintiff an Axis I diagnosis of 305.90. Under DSMIV, an Axis I diagnosis of 305.90 refers to Caffeine Intoxication, Inhalant Abuse, Other Substance Abuse, or Phencylidine Abuse. DSM-IV, at 232, 259, 279, 295. 9 25 26 A GAF score of 21-30 denotes [b]ehavior is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriate, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). DSM-IV, at 34. 27 10 28 The record is difficult to decipher, but it appears that plaintiff was discharged to his mother with instructions to resume his medications. [AR at 207.] 7 1 However, after another two months passed, plaintiff was admitted on August 13, 2007, on 2 another 5150 hold to Arrowhead Regional Medical Center.11 [AR at 183-84.] Plaintiff was held 3 as a danger to himself through August 23, 2007, because he was experiencing auditory 4 hallucinations commanding him to kill himself with a knife and had reportedly tried to hang himself 5 eight months earlier. [AR at 181, 183, 190.] According to plaintiff s mother, plaintiff had been on 6 a tapering dose of medications and had eventually stopped taking his medications because he 7 could not afford them anymore. [AR at 183.] According to the discharge summary, plaintiff 8 stopped taking his medications two months prior to his second 5150 hold. [AR at 181.] During 9 the two weeks leading up to his second hospitalization, plaintiff had been increasingly 10 preoccupied, isolative, talking to himself, hearing voices, and becoming progressively psychotic 11 and depressed. [AR at 183.] 12 Dr. Larry Lawrence performed a psychiatric evaluation of plaintiff during his admission to 13 the hospital and found that plaintiff was not functional, his thinking was tangential and 14 demonstrated a really significant paucity of content, his affect was significantly restricted and 15 constricted, and he appeared to have a significant cognitive impairment, significant psychosocial 16 isolation, and a good deal of blocking. [AR at 183.] During the psychiatric evaluation, plaintiff 17 stated that he hears the voices and the word hatred. [AR at 183.] Dr. Lawrence gave plaintiff 18 a primary diagnosis of Schizoaffective disorder, depressed, a secondary diagnosis of [o]ther 19 substance abuse, and a GAF score of 15.12 [AR at 183.] The record indicates that plaintiff s best 20 GAF score was 5013 during the past year. [AR at 183.] Dr. Lawrence prescribed plaintiff various 21 medications for his agitation. [AR at 181, 183-84.] Since he found that plaintiff continue[d] to be 22 23 11 24 25 26 27 28 The record indicates that plaintiff was admitted to Arrowhead Regional Medical Center both on August 13, 2007, and on August 15, 2007, but it appears that plaintiff was held at the medical center continuously from August 13, 2007, through August 23, 2007. [AR at 181-203.] 12 A GAF score of 11-20 denotes [s]ome danger of hurting self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) . . . . DSM-IV, at 34. 13 See supra note 6. 8 1 at significant risk of suicidal attempt, Dr. Lawrence admitted plaintiff for inpatient services and 2 placed him on line-of-sight to prevent suicide. [AR at 183, 190.] 3 During plaintiff s hospitalization, he remained isolative, withdrawn, [and] with depressed 4 mood; continued to experience auditory hallucinations telling him to kill himself; stated a plan of 5 get[ting] a gun and shoot[ing] [him]self; and explained that he wished to kill himself because he 6 was lonely, miserable, and had no plans. [AR at 181.] According to an August 16, 2007, 7 psychosocial assessment, plaintiff had persecutory delusions, poor impulse control, and limited 8 judgment. [AR at 200.] The assessment also revealed a number of psychosocial stressors 9 impacting plaintiff, including prior noncompliance with medications, mental illness, substance 10 abuse, a lack of coping skills, and a dysfunctional family system. [AR at 202.] The assessor 11 concluded that plaintiff had limited readiness for psychoeducation and that the primary high-risk 12 psychosocial stressors causing his instability were his suicidal thoughts, undisclosed suicidal 13 plans, depression, alcohol, and family-induced low self esteem and anxiety. [AR at 202-03.] 14 Based upon that assessment, plaintiff was diagnosed with a psychotic disorder, not otherwise 15 specified. [AR at 203.] On August 20, 2007, plaintiff was prescribed additional medications for 16 his depression. [AR at 182.] Upon discharge on August 23, 2007, he was instructed to continue 17 taking various medications. [AR at 182.] At discharge, plaintiff was again diagnosed with 18 Schizoaffective disorder, depressed and assigned a GAF score of 60.14 [AR at 181.] 19 Five days later, on August 28, 2007, Dr. Faire prescribed plaintiff refills of his medications. 20 [AR at 169.] Then, on September 14, 2007, plaintiff began experiencing severe chest pain, which 21 he believed to be a reaction to his medications. [AR at 165.] Plaintiff went to an emergency room. 22 [AR at 164.] A myocardial infarction was ruled out, but plaintiff continued to experience chest pain 23 as of September 20, 2007. [AR at 164.] At an October 16, 2007, medication visit with Dr. Faire 24 at which plaintiff reported that he still felt depressed, Dr. Faire discussed with plaintiff that his chest 25 pain may have been symptomatic of severe anxiety. [AR at 162.] Shortly thereafter, plaintiff 26 27 28 14 A GAF score of 51-60 denotes [m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., no friends, unable to keep a job.) DSM-IV, at 34. 9 1 transferred from the care of Dr. Faire to Dr. Carlos Pequeno. [AR at 160.] At a March 7, 2008, 2 medication visit, Dr. Pequeno noted that plaintiff had been off his psychiatric medications for one 3 week and that social isolation [was] an active problem for him. [AR at 172.] At a May 9, 2008, 4 medication visit, Dr. Pequeno noted plaintiff s anger outbursts and social isolation problem. [AR 5 at 171.] Lastly, the record indicates that at a July 18, 2008, medication visit, Dr. Pequeno advised 6 plaintiff to stop drinking alcohol and to attend substance abuse therapy. [AR at 170.] 7 In sum, plaintiff was assessed GAF scores of 43, 45, 30, 15, and 60 on December 6, 2006, 8 January 16, 2007, April 12, 2007,15 August 13, 2007, and August 23, 2007, respectively. [AR at 9 130, 132, 181, 183, 207.] In addition, the record indicates that plaintiff s highest GAF score during 10 the year prior to August 13, 2007, was 50. [AR at 183.] 11 A severe impairment, or combination of impairments, is defined as one that significantly 12 limits physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520, 416.920. The 13 Supreme Court has recognized that including a severity inquiry at the second stage of the 14 evaluation process permits the [Commissioner] to identify efficiently those claimants whose 15 impairments are so slight that they are unlikely to be found disabled even if the individual s age, 16 education, and experience are considered. Corrao v. Shalala, 20 F.3d 943, 949 (9th Cir. 1994) 17 (citing Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987)). However, 18 an overly stringent application of the severity requirement would violate the statute by denying 19 benefits to claimants who meet the statutory definition of disabled. Corrao, 20 F.3d at 949 (citing 20 Bowen v. Yuckert, 482 U.S. at 156-58 (O Connor, J., concurring)). Despite use of the term 21 severe, most circuits, including the Ninth Circuit, have held that the step-two inquiry is a de 22 minimis screening device to dispose of groundless claims. Smolen v. Chater, 80 F.3d 1273, 1290 23 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. at 153-54); see Hawkins v. Chater, 113 F.3d 24 1162, 1169 (10th Cir. 1997) ( A claimant s showing at level two that he or she has a severe 25 impairment has been described as de minimis. ) (citation omitted). An impairment or combination 26 27 15 28 It is unclear whether the GAF score of 30 was assessed on April 12, 2007, or April 13, 2007. [AR at 207.] 10 1 of impairments should be found to be not severe only when the evidence establishes merely a 2 slight abnormality that has no more than a minimal effect on an individual s physical or mental 3 ability to do basic work activities. See Corrao, 20 F.3d at 949 (citing Yuckert v. Bowen, 841 F.2d 4 303, 306 (9th Cir. 1988)); see also Social Security Ruling ( SSR )16 85-28 ( [A]n impairment is not 5 severe if it has no more than a minimal effect on an individual s physical or mental ability(ies) to 6 do basic work activities ); Hudson v. Bowen, 870 F.2d 1392, 1396 (8th Cir. 1989) (holding that an 7 evaluation can stop at step two only when there is no more than minimal effect on ability to work). 8 Here, in explaining his conclusion that plaintiff s medically determinable impairment was not 9 severe, the ALJ noted that plaintiff had received a GAF score of 43 [AR at 13], which was 10 assessed on December 6, 2006. [AR at 130.] The ALJ discussed the import of this score only 11 to the extent that he commented that progress notes dated January 16, 2007, state that [plaintiff] 12 started medications two months ago and reported great improvement. [AR at 13.] The ALJ did 13 not discuss, or even mention, any of plaintiff s other GAF scores. Also in support of his step two 14 determination of non-severity, the ALJ stated that [t]he records do not reflect any acute mental 15 health crisis requiring inpatient hospitalization or intensive treatment [AR at 13], a conclusion 16 which the record belies, since plaintiff was twice held as a danger to himself, with the second 17 hospitalization lasting ten days.17 [AR at 181-210.] 18 It thus appears that the ALJ rejected the treating physicians assessments of plaintiff s GAF 19 scores, but did so without providing an express reason. In evaluating medical opinions, the case 20 law and regulations distinguish among the opinions of three types of physicians: (1) those who 21 treat the claimant (treating physicians); (2) those who examine but do not treat the claimant 22 (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining 23 physicians). See 20 C.F.R. §§ 404.1502, 404.1527, 416.902, 416.927; see also Lester, 81 F.3d 24 16 25 26 SSRs do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 27 17 28 The records from plaintiff s second hospitalization were submitted after the ALJ hearing, but were considered by the Appeals Council. [AR at 4.] 11 1 at 830. Generally, the opinions of treating physicians are given greater weight than those of other 2 physicians, because treating physicians are employed to cure and therefore have a greater 3 opportunity to know and observe the claimant. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007); 4 Smolen, 80 F.3d at 1285. Despite the presumption of special weight afforded to treating 5 physicians opinions, an ALJ is not bound to accept the opinion of a treating physician. However, 6 the ALJ may only give less weight to a treating physician s opinion that conflicts with the medical 7 evidence if the ALJ provides explicit and legitimate reasons for discounting the opinion. See 8 Lester, 81 F.3d at 830-31 (the opinion of a treating doctor, even if contradicted by another doctor, 9 can only be rejected for specific and legitimate reasons that are supported by substantial evidence 10 in the record); see also Orn, 495 F.3d at 632-33 ( Even when contradicted by an opinion of an 11 examining physician that constitutes substantial evidence, the treating physician s opinion is still 12 entitled to deference. ) (citations omitted); SSR 96-2p (a finding that a treating physician s opinion 13 is not entitled to controlling weight does not mean that the opinion is rejected). 14 Here, the ALJ s failure to provide any reasons for rejecting plaintiff s GAF scores constitutes 15 error warranting remand, since an ALJ is required to provide specific and legitimate reasons based 16 on substantial evidence in the record for rejecting a treating physician s findings (Lester, 81 F.3d 17 at 830; see Ramirez v. Shalala, 8 F.3d 1449, 1453-54 (9th Cir. 1993)). While the GAF scores 18 cited above -- without more -- may not be determinative of the issue of disability, the Court is 19 aware of no authority asserting that GAF scores and their implications -- especially scores from 20 treating sources -- may be improperly rejected, as was done here. Plaintiff s scores indicate at 21 least a moderate impairment, and possibly a major impairment, in social and occupational 22 functioning. Even if not directly translatable into Social Security terminology, the scores may be 23 probative of plaintiff s condition. See Olds v. Astrue, 2008 WL 339757, at *4 (D. Kan. Feb. 5, 24 2008) (a low GAF score does not alone determine disability, but it is a piece of evidence to be 25 considered with the rest of the record) (citation omitted); see also Escardille v. Barnhart, 2003 WL 26 21499999, at *5-6 (E.D. Pa. June 24, 2003) (remanding based in part on an ALJ s failure to 27 address a GAF score of 50 or its meaning regarding plaintiff s ability to maintain employment. ); 28 Wickramasekera v. Astrue, 2010 WL 3883241, at *26 (D. Ariz. Sept. 29, 2010) (remanding for 12 1 proper consideration of treating sources GAF assessments, even though a GAF score in the 45- 2 50 range [does not] automatically result[] in a disability determination ). Accordingly, remand is 3 necessary to consider and address this evidence in determining whether plaintiff s impairment is 4 severe. 5 Furthermore, it was improper for the ALJ to selectively reference plaintiff s treatment 6 records to support his conclusion that plaintiff s impairment was not severe, while ignoring other 7 treatment records contradicting that conclusion, such as plaintiff s GAF scores and records from 8 his hospitalizations. Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (stating that it is error 9 for an ALJ to ignore or misstate the competent evidence in the record in order to justify her 10 conclusion). See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (stating that an ALJ is 11 not permitted to reach a conclusion simply by isolating a specific quantum of supporting 12 evidence ); Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir. 1982) ( [A]n ALJ must weigh all the 13 evidence and may not ignore evidence that suggests an opposite conclusion. ) (citation omitted). 14 Moreover, [j]udicial review of an administrative decision is impossible without an adequate 15 explanation of that decision by the administrator. DeLoatche v. Heckler, 715 F.2d 148, 150 (4th 16 Cir. 1983) (finding that an ALJ s failure to explain why he disregarded medical evidence prevented 17 meaningful judicial review ). The ALJ s failure to explain why he ignored most of plaintiff s GAF 18 scores prevents judicial review. Cotter v. Harris, 642 F.2d 700, 706-07 (3rd Cir. 1981) ( Since it 19 is apparent that the ALJ cannot reject evidence for no reason or for the wrong reason, an 20 explanation from the ALJ of the reason why probative evidence has been rejected is required so 21 that . . . [the] [C]ourt can determine whether the reasons for rejection were improper. ) (internal 22 citation omitted). Remand is warranted so that the ALJ may properly consider plaintiff s GAF 23 scores. See Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (holding that an ALJ must 24 provide detailed, reasoned and legitimate rationales for disregarding [] physicians findings ); see, 25 e.g., Nelson v. Barnhart, 2003 WL 297738, at *4 (N.D. Cal. Feb. 4, 2003) ( Where an ALJ fails to 26 give sufficiently specific reasons for rejecting the conclusion of [a physician], it is proper to 27 remand the matter for proper consideration of the physicians evidence. ) (brackets in original) 28 (citation omitted). 13 1 2 B. PLAINTIFF S CREDIBILITY 3 Plaintiff contends that the ALJ failed to make proper credibility findings and to properly 4 consider plaintiff s subjective symptoms. [JS at 12-15.] As the ALJ s credibility determination was 5 based, in part, on his analysis of the medical evidence -- an analysis that the Court finds was 6 improper for the reasons discussed above -- the ALJ is instructed to reassess plaintiff s credibility 7 after a reconsideration of the medical evidence. 8 9 VI. 10 REMAND FOR FURTHER PROCEEDINGS 11 As a general rule, remand is warranted where additional administrative proceedings could 12 remedy defects in the Commissioner s decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th 13 Cir.), cert. denied, 531 U.S. 1038 (2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). 14 In this case, remand is appropriate for the ALJ to reassess the treating physicians opinions and 15 GAF scores, as well as plaintiff s credibility. The ALJ is instructed to take whatever further action 16 is deemed appropriate and consistent with this decision. 17 Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff s request for remand is granted; 18 (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant 19 for further proceedings consistent with this Memorandum Opinion. 20 21 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 22 This Memorandum Opinion and Order is not intended for publication, nor is it 23 intended to be included in or submitted to any online service such as Westlaw or Lexis. 24 25 DATED: July 21, 2011 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 26 27 28 14

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