Christopher Mosqueda v. Michael J Astrue, No. 5:2011cv01544 - Document 21 (C.D. Cal. 2012)
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. See order for details. (jy)
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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 11-1544(SS) MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Plaintiff Christopher Mosqueda ( Plaintiff ) brings this action 22 seeking to reverse and remand the decision of the Commissioner of the 23 Social Security Administration (the Commissioner or the Agency ) 24 denying 25 benefits. The parties consented, pursuant to 28 U.S.C. § 636(c), to the 26 jurisdiction of the undersigned United States Magistrate Judge. For the 27 reasons stated below, the decision of the Agency is REVERSED and 28 REMANDED for further proceedings. his application for Supplemental Security Income ( SSI ) 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff applied for SSI benefits on June 30, 2004. (AR 38-41). 5 After the application was denied initially and on reconsideration, an 6 Administrative Law Judge ( ALJ ) heard the case on September 26, 2005. 7 (AR 200-10). On December 9, 2005, the ALJ denied benefits. (AR 17-25). 8 Plaintiff sought Appeals Council ( AC ) review and on March 8, 2006, the 9 AC remanded the case for further proceedings. (AR 12-14). The Office 10 of Hearings and Appeals held an additional hearing on March 21, 2007. 11 (AR 361-83). On April 4, 2007, the ALJ denied benefits again. (AR 215- 12 24). (AR 211-13). He then 13 sought judicial review in Mosqueda v. Astrue, EDCV 09-1393 SS. On June 14 30, 2010, this Court remanded the case for further consideration at step 15 two regarding the preparation of a Psychiatric Review Technique Form 16 ( PRTF ). 17 May 4, 2011. 18 decision. 19 instant action. Plaintiff sought review, which was denied. (AR 408-12). On remand, a different ALJ held a hearing on (AR 438-69). (AR 384-93). The ALJ denied benefits in a July 13, 2011, On September 26, 2011, Plaintiff filed the 20 21 III. 22 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 23 24 To qualify for disability benefits, a claimant must demonstrate a 25 medically determinable physical or mental impairment that prevents him 26 27 28 2 1 from engaging in substantial gainful activity1 and that is expected to 2 result in death or to last for a continuous period of at least twelve 3 months. 4 42 U.S.C. § 423(d)(1)(A)). 5 incapable of performing the work he previously performed and incapable 6 of performing any other substantial gainful employment that exists in 7 the national economy. 8 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. 9 10 11 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: 12 13 (1) Is the claimant presently engaged in substantial gainful 14 activity? 15 If not, proceed to step two. 16 (2) Is the If so, the claimant is found not disabled. claimant s impairment 17 claimant is found not disabled. 18 severe? If not, the three. 19 (3) Does the claimant s If so, proceed to step impairment meet or equal the 20 requirements of any impairment listed at 20 C.F.R. Part 21 404, Subpart P, Appendix 1? 22 found disabled. 23 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing his past work? 24 so, the claimant is found not disabled. 25 If If not, proceed to step five. 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 (5) Is the claimant able to do any other work? 2 claimant is found disabled. 3 If not, the If so, the claimant is found not disabled. 4 5 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 6 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. § 416.920(b)- 7 (g)(1). 8 9 The claimant has the burden of proof at steps one through four, and 10 the Commissioner has the burden of proof at step five. 11 F.3d at 953-54. 12 establishing an inability to perform the past work, the Commissioner 13 must show that the claimant can perform some other work that exists in 14 significant numbers in the national economy, taking into account the 15 claimant s residual functional capacity ( RFC ),2 age, education and 16 work experience. 17 The Commissioner may do so by the testimony of a vocational expert or 18 by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 19 Part 404, Subpart P, Appendix 2 (commonly known as the Grids ). 20 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 21 claimant 22 limitations, the Grids are inapplicable and the ALJ must take the 23 testimony of a vocational expert. 24 (9th Cir. 2000). 25 \\ 26 \\ has Bustamante, 262 If, at step four, the claimant meets his burden of Tackett, 180 F.3d at 1100; 20 C.F.R. § 416.920(g)(1). both exertional (strength-related) and When a nonexertional Moore v. Apfel, 216 F.3d 864, 869 27 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 IV. 2 THE ALJ S DECISION 3 4 The ALJ employed the five-step sequential evaluation process. At 5 step one, the ALJ found that Plaintiff has not engaged in substantial 6 gainful employment since June 30, 2004, his application date. (AR 389). 7 At step two, the ALJ found that Plaintiff has the following medically 8 determinable impairments: schizoaffective disorder3 and a history of 9 drug and alcohol abuse. (AR 389). The ALJ determined that these 10 impairments have not (and are not expected to) significantly limit 11 Plaintiff s ability to perform basic work-related activities for twelve 12 consecutive months. 13 does not have a severe impairment or combination of impairments. 14 389). (AR 389). Thus, the ALJ concluded that Plaintiff (AR 15 16 In his decision, the ALJ noted that Plaintiff s medically 17 determinable impairments could reasonably be expected to produce the 18 alleged symptoms. 19 Plaintiff s 20 limiting effects of the symptoms are not credible to the extent they 21 are inconsistent with finding that the [Plaintiff] has no severe 22 impairment or combination of impairments . . . . 23 gave great weight to non-examining medical expert Dr. Kania, who 24 opined that Plaintiff s medical impairment caused only mild limitations 25 on activities of daily living, social functioning, and concentration, 26 (AR 390). statements However, the ALJ determined that concerning 3 the intensity, persistence (AR 390). and The ALJ Schizoaffective disorder is a condition related to, characterized by, or exhibiting symptoms of both schizophrenia and 27 bipolar disorder. MiriamWebster s Online Dictionary http://www.merriam-webster.com/medical/schizoaffective?show=0&t=13472 28 98404 (last visited Sep. 10, 2012). 5 1 persistence, or pace. (AR 390). The ALJ also deferred to Dr. Kania s 2 determination that Plaintiff suffered no episodes of decompensation. 3 (AR 390). 4 5 The ALJ discounted the findings of treating physician Dr. Kunam 6 that Plaintiff has mostly marked to extreme limitation, is not a 7 malingerer, and would need to miss three or more days of work per 8 month. 9 credibility because it gave considerable weight to the [Plaintiff s] (AR 391). The ALJ noted that Dr. Kunam s evaluation lacked 10 complaints. (AR 392). The ALJ gave great weight to Dr. Smith s 11 psychiatric assessment, relying on her three separate evaluations of the 12 Plaintiff between August 2004 and January 2007. (AR 391). Based on Dr. 13 Smith s findings, Plaintiff s treatment records, and other testimony, 14 the ALJ concluded that Dr. Kunam s assessment was unjustified. 15 391). 16 unpersuasive at the remand hearing and that Plaintiff s treatment 17 records and vague testimony failed to support the alleged symptoms. (AR 18 391-92). (AR The ALJ noted that ALJ Varni had found that Plaintiff was 19 20 The ALJ concluded that Plaintiff s medically determinable mental 21 impairments cause no more than mild limitation in the first three 22 functional areas and no episodes of decompensation per 20 C.F.R. 23 416.920c. 24 have a severe impairment, making it unnecessary to proceed to step 25 three. 26 \\ 27 \\ 28 \\ (AR 292). Thus, the ALJ determined that Plaintiff does not (AR 392-93). 6 1 V. 2 STANDARD OF REVIEW 3 4 Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner s decision to deny benefits. The court may set aside the 6 Commissioner s decision when the ALJ s findings are based on legal error 7 or are not supported by substantial evidence in the record as a whole. 8 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 9 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 10 11 Substantial evidence is more than a scintilla, but less than a 12 preponderance. 13 which a reasonable person might accept as adequate to support a 14 conclusion. 15 a finding, the court must consider the record as a whole, weighing 16 both 17 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 18 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 19 reasonably support either affirming or reversing that conclusion, the 20 court may not substitute its judgment for that of the Commissioner. 21 Reddick, 157 F.3d at 720-21. evidence Reddick, 157 F.3d at 720. Id. It is relevant evidence To determine whether substantial evidence supports that supports and evidence that detracts from the If the evidence can 22 23 VI. 24 DISCUSSION 25 26 Plaintiff contends the ALJ erred for several reasons: (1) the ALJ 27 did not apply the correct rule of law nor does the medical evidence 28 provide substantial evidence for the step two finding, (Memorandum of 7 1 Points and Authorities in Support of Plaintiff s Complaint ( PC ); 2 (2) 3 statements, (PC at 2); (3) the ALJ did not properly consider Plaintiff s 4 credibility. the ALJ failed to consider Mary Helen Mosqueda s July 2004 (PC at 2). 5 6 The Court agrees with all of Plaintiff s grounds for remand. For 7 the reasons discussed below, the Court finds that the ALJ s decision 8 should be reversed and this action remanded for further proceedings. 9 10 A. The ALJ Erred At Step Two By Concluding That Plaintiff s Mental Impairment Was Not Severe 11 12 13 Plaintiff argues that the ALJ erred in finding that his mental 14 impairment was not severe. 15 though Plaintiff was treated for mental illness from April 2004 through 16 May 2011, (id. at 3), the ALJ failed to explain how he determined that 17 Plaintiff had an mental impairment lasting less than twelve months, and 18 that at the very least such a determination requires further fact 19 finding. 20 include sufficiently detailed findings to show that he reached his 21 conclusions after considering significant evidence. 22 also contends that the ALJ failed to conduct the severity analysis using 23 affirmative evidence of non-severity that is clearly established by 24 medical evidence. 25 improperly applied the de minimis standard at step two, which requires 26 a 27 sequential evaluation analysis. (Id. at 4-6). As there was significant 28 evidence in the record of a severe mental impairment, the Court finds showing (Id.). that (PC at 2). Plaintiff argues that even Furthermore, Plaintiff argues that the ALJ failed to a (Id. at 4). claim is (Id.). Plaintiff Finally, Plaintiff argues that the ALJ groundless 8 before discontinuing the 1 that the ALJ failed to properly assess Plaintiff s mental impairment at 2 step two. The Court notes that the prior ALJ found "a very questionably 3 severe mental impairment." (AR 23). 4 5 By its own terms, the evaluation at step two is a de minimis test 6 intended to weed out only the most minor of impairments. See Bowen v. 7 Yuckert, 482 U.S. 137, 153-54, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); 8 Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2005) (stating that 9 the step two inquiry is a de minimis screening device to dispose of 10 groundless claims) (quoting Smolen, 80 F.3d at 1290). An impairment is 11 not severe only if the evidence establishes a slight abnormality that 12 has only a minimal effect on an individual s ability to work. 13 80 F.3d at 1290. Smolen, 14 15 The ALJ applied more than a de minimis test in determining that 16 Plaintiff s mental impairment is not severe. Moreover, this error was 17 not harmless because after the ALJ improperly found the impairment non- 18 severe, the ALJ failed to adequately address the remaining steps of the 19 Secretary s regulations governing mental impairments, as described 20 below. 21 22 Where there is evidence of a mental impairment that allegedly 23 prevents the plaintiff from working, the Agency has supplemented the 24 five-step sequential evaluation process with additional regulations.4 25 Maier v. Comm r Soc. Sec. Admin., 154 F.3d 913, 914-15 (9th Cir. 1998) 26 4 These additional steps are intended to assist the ALJ in 27 determining the severity of mental impairments at steps two and three. The mental RFC assessment used at steps four and five of the evaluation 28 process, on the other hand, require a more detailed analysis. Social Security Ruling 98-8p, 1996 WL 374184, at *4. 9 1 (citing 20 C.F.R. § 416.920a) (per curiam). First, the ALJ must 2 determine the presence or absence of certain medical findings relevant 3 to the plaintiff s ability to work. 4 Second, when the plaintiff establishes these medical findings, the ALJ 5 must rate the degree of functional loss resulting from the impairment 6 by considering four areas of function: (a) activities of daily living; 7 (b) social functioning; (c) concentration, persistence, or pace; and (d) 8 episodes of decompensation. 9 after rating the degree of loss, the ALJ must determine whether the 20 C.F.R. § 416.920a(b)(1). 20 C.F.R. § 416.920a(c)(2)-(4). Third, 10 claimant has a severe mental impairment. 11 (emphasis added). 12 severe, the ALJ must determine if it meets or equals a listing in 20 13 C.F.R. Part 404, Subpart P, Appendix 1. 14 Finally, if a listing is not met, the ALJ must then assess the 15 plaintiff s RFC, and the ALJ s decision must incorporate the pertinent 16 findings and conclusions regarding the plaintiff s mental impairment, 17 including a specific finding as to the degree of limitation in each of 18 the functional areas described in [§ 416.920a)c)(3)]. 19 § 20 regulations in a perfunctory fashion, the ALJ's failure to recognize 21 Plaintiff's mental impairment as severe undermined the ALJ's application 22 of the regulations. 416.920a(d)(3), 20 C.F.R. § 416.920a(d) Fourth, when a mental impairment is found to be (e)(2). While the 20 C.F.R. § 416.920a(d)(2). ALJ here, 20 C.F.R. followed these 23 24 The regulations describe an impairment as follows: 25 26 A physical or mental impairment must result from anatomical, 27 physiological, or psychological abnormalities which can be 28 shown by medically acceptable 10 clinical and laboratory 1 diagnostic techniques. 2 be established by medical evidence consisting of signs, 3 symptoms, 4 plaintiff s] statements of symptoms. and A physical or mental impairment must laboratory findings, not only by [a 5 6 20 C.F.R. § 416.908; see also Ukolov v. Barnhart, 420 F.3d 1002, 1005 7 (9th Cir. 2005) (noting that the existence of a medically determinable 8 physical or mental impairment may be established only with objective 9 medical findings) (citing Social Security Ruling 96-4p, 1996 WL 374187, 10 at *1-2). 11 12 Here, Plaintiff s mental impairment is sufficient to satisfy the 13 de minimis test for severity. Plaintiff s treating doctor, Syam Kunam, 14 M.D., a board certified psychiatrist, diagnosed Plaintiff with bipolar 15 disorder and schizoaffective disorder.5 16 mental health treatment records date back to April 2004 and indicate 17 that he was prescribed several medications for schizophrenia, bipolar 18 disorder, depression, anxiety, daily headaches, and insomnia. (AR 130- 19 145, 188-90, 192-94, 197-99, 304-12, 357, 425-31). Dr. Kunam noted that 20 Plaintiff has extreme limitations resulting from his impairment and is 21 totally and permanently disabled. 22 60). (AR 174-75). Plaintiff s (AR 174-75; see also 195-96, 359- 23 24 25 Furthermore, Plaintiff reported an inability to maintain his general hygiene as a result of his illness. (See AR 97-97, 129, 287- 26 5 The record is unclear as to when the initial diagnoses occurred. However, physicians notes substantiate Dr. Kunam s bipolar disorder and 28 schizoaffective disorder diagnoses on September 17, 2004, and October 21, 2004, respectively. (AR 174-75). 27 11 1 88). Plaintiff also expressed having feelings of paranoia, auditory 2 hallucinations, and delusions. 3 04, 227, 289-91, 293, 341, 368-72, 445, 451-52). 4 condition rendered him adverse to leaving his house. 5 Finally, 6 experienced suicidal thoughts. (AR 31, 34, 36, 127, 372). As such, the 7 evidence in the record does not support the conclusion that Plaintiff s 8 mental impairment has no more than a minimal effect on his ability to 9 work. Plaintiff admitted (See AR 35, 37, 123-24, 127, 129, 203- that he had He asserted that his (See AR 37, 119). attempted suicide and 10 11 Ultimately, the ALJ denied Plaintiff benefits by according Dr. 12 Smith s psychiatric evaluations greater weight than those of Dr. Kunam. 13 (AR 391-92). 14 without explaining in detail why Dr. Smith s testimony should receive 15 greater weight than Dr. Kunam s. 16 legitimate reasons for rejecting Dr. Kunam s impressions. 17 F.3d at 1285 (requiring the ALJ to set forth specific, legitimate 18 reasons 19 physicians opinions). 20 Plaintiff s degrees of limitation for each of the functional areas 21 outlined in 20 C.F.R. § 404.1520a, he did not explain the rationale for 22 his findings. 23 Cir. 2011) (requiring ALJ decisions to contain a narrative rationale, 24 instead of the checklist of . . . conclusions found in a PRTF). based However, the ALJ simply recounted Dr. Smith s findings on substantial The ALJ failed to set forth specific, evidence before Smolen, 80 rejecting treating Furthermore, while the ALJ briefly addressed See Keyser v. Comm r. Soc. Sec., 648 F.3d 721, 725 (9th 25 26 As described above, significant medical evidence 27 demonstrate that Plaintiff s mental impairment was severe. 28 however, applied more than a de minimis test at step two. 12 exists to The ALJ, (AR 389-92). 1 Accordingly, this case must be remanded for further proceedings. Upon 2 remand, the ALJ must follow the agency's own regulations regarding 3 mental impairments and must incorporate the limitations from Plaintiff s 4 severe mental impairment into the RFC determination. 5 6 7 B. The ALJ Erred By Failing To Consider The July 2004 Statements Of Plaintiff s Mother, Mary Helen Mosqueda 8 9 Plaintiff s mother, Mary Helen Mosqueda, provided a detailed report 10 of Plaintiff s activities of daily living in a form dated July 12, 2004, 11 and a letter dated September 16, 2004. 12 statements, Ms. Mosqueda describes her son s erratic behavior and 13 feelings of anxiety. 14 illness negatively affects his interpersonal relationships, as well as 15 his ability to complete tasks, concentrate, and understand things. (See 16 AR 30-31, 108). 17 Lithum and Sonata regularly, and sometimes twice a day. (AR 30-31, 103-11). (See AR 30-31, 103-11). In these She maintained that his She noted that Plaintiff takes Prozac, Paxil, Zoloft, (AR 109). 18 19 Friends and family members in a position to observe a claimant s 20 symptoms and daily activities are competent to testify as to the 21 claimant s condition. Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 22 1993). 23 give reasons that are germane to each witness. 24 explained by the Ninth Circuit, If the ALJ chooses to discount lay witness testimony, he must Id. at 919. 25 26 [T]he Commissioner s Rulings require the ALJ to consider lay 27 witness testimony in certain types of cases. 28 states that where a claimant alleges pain or other symptoms 13 SSR 88-13 As 1 that are not supported by medical evidence in the file, the 2 adjudicator 3 activities by directing specific inquiries about the pain and 4 its effects to . . . third parties who would be likely to 5 have such knowledge. 6 to give full consideration to such evidence. shall obtain detailed descriptions of daily The ruling then requires the ALJ 7 8 Smolen, 80 F.3d at 1288 (emphasis in original). In determining 9 whether a claimant is disabled, an ALJ must consider lay witness 10 testimony concerning a claimant s ability to work. 11 Stout v. Commissioner, 454 F.3d 1050, 1053 (9th Cir. 2006). 12 13 Because Ms. Mosqueda is Plaintiff s mother, and lives with him full 14 time, she is in a position to observe Plaintiff s symptoms and daily 15 activities. 16 statements, 17 discounting her testimony.6 18 witness has a close relationship with the claimant or is related to the 19 claimant cannot be the sole ground for rejecting lay witness testimony. 20 See Smolen v. Chater, 80 F.2d 1273, 1289 (9th Cir. 1996). 21 ALJ failed to expressly consider Ms. Mosqueda s 2004 statements, this 22 case must be remanded for further proceedings. 23 must expressly consider Ms. Mosqueda s 2004 statements, or provide 24 reasons germane to the witness for not considering them. The ALJ failed to properly consider Ms. Mosqueda s 2004 without providing reasons germane to the witness for The Court notes that the fact that a lay Because the Upon remand, the ALJ 25 26 6 The ALJ may not simply incorporate by reference the reasons to reject Plaintiff's mother's testimony offered by the prior ALJ, as the 28 prior ALJ's decision was subsequently reversed by the Court's June 30, 2010 order. 27 14 1 2 C. The ALJ Erred By Failing To Properly Consider Plaintiff s Credibility 3 4 Plaintiff s third claim is that the ALJ failed to properly consider 5 his testimony about subjective symptoms. (PC at 2). 6 The ALJ improperly relied on testimony presented before Judge Varni in 7 a previously vacated decision. 8 articulate clear and convincing reasons for rejecting Plaintiff s 9 subjective complaints testimony. (AR 391-92). The Court agrees. The ALJ also failed to 10 11 Evaluating a claimant s credibility involves a two step analysis. 12 First, the ALJ must determine whether the claimant has presented 13 objective medical evidence of an underlying impairment, which could 14 reasonably be expected to produce the pain or other symptoms alleged. 15 Lingenfelter 16 However, the ALJ may not reject subjective symptom testimony simply 17 because there is no showing that the impairment can reasonably produce 18 the degree of symptom alleged. 19 meets 20 malingering, the ALJ can reject the claimant s testimony about the 21 severity 22 convincing reasons for doing so. 23 Admin., 533 F.3d 1155, 1160 (9th Cir. 2008) (quoting Smolen, 80 F.3d at 24 1281). 25 instead, the ALJ must state which statements in the testimony are not 26 credible and what evidence supports that conclusion. 27 at 918. SSR 88-13 lists a number of factors an adjudicator may consider 28 in assessing a claimant s credibility: the v. first of his Astrue, test, 504 and symptoms F.3d 1035-36 Id. at 1036. there only 1028, by is no (9th Cir. 2007). Second, if the claimant affirmative offering specific, evidence clear of and Carmickle v. Comm r, Soc. Sec. It is insufficient for the ALJ to make only general findings; 15 Dodrill, 12 F.3d 1 (1) 2 The nature, location, onset, duration, frequency, radiation, and intensity of any pain; 3 (2) 4 Precipitating and aggravating factors (e.g., movement, activity, environmental conditions); 5 (3) 6 Type, dosage, effectiveness, and adverse side-effects of any pain medication; 7 (4) Treatment, other than medication, for relief of pain; 8 (5) Functional restrictions; and 9 (6) The claimant s daily activities. also Burch v. 10 11 See 12 Additionally, if the ALJ relies on physician testimony to support an 13 adverse credibility determination of the claimant, the ALJ must accord 14 the treating physician s opinion greater weight over the opinions of 15 non-treating physicians. 16 Cir. 2007)( Even when contradicted by an opinion of an examining 17 physician 18 physician s opinion is still entitled to deference. ). 19 the opinion of a treating physician, the ALJ must set forth specific, 20 legitimate reasons for doing so based on substantial evidence in the 21 record. that Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). See Orn v. Astrue, 495 F.3d 625, 631-33 (9th constitutes substantial evidence, the treating To disregard Id. at 632. 22 23 The record contains medical evidence demonstrating that Plaintiff 24 has a severe mental impairment sufficient to satisfy part one of the 25 credibility analysis. 26 Evidence of various prescriptions to treat Plaintiff s mental illness 27 supports the existence of such an impairment. 28 94, 197-99, 304-12, (AR 174-75; see also id. 195-96, 359-60). 357, 425-31). 16 (AR 130-45, 188-90, 192- Additionally, Plaintiff s own 1 testimony regarding his auditory hallucinations, anxiety, and inability 2 to be productive repeatedly corroborates the same. (See AR 35, 37, 119, 3 123-24, 127, 129, 203-04, 227, 289-91, 293, 341, 368-72, 445, 451-52). 4 Finally, the statements by Plaintiff s mother and brother further 5 support Plaintiff s testimony. 6 65). (AR 30-31, 103-11, 294-301, 346, 459- 7 8 9 Under part two of the credibility analysis, the ALJ found Plaintiff s testimony to be not credible because it was inconsistent 10 with the ALJ's conclusion that Plaintiff lacked a severe mental 11 impairment, which this Court has concluded was an erroneous finding. 12 (AR 390; see also id. 392). The ALJ s decision also did not include any 13 affirmative findings of malingering. (See AR 389-92). 14 15 Moreover, the ALJ appears to have improperly based his credibility 16 determination on a previously vacated decision, stating that Judge 17 Varni appropriately discounted the claimant s credibility . . . . (AR 18 392). 19 physicians, Dr. Kania and Dr. Smith, to support an adverse credibility 20 finding 21 Plaintiff are undermined by the doctor's observations. Furthermore, the ALJ relied on the opinions of non-treating of the claimant, without explaining which statements by (AR 390-92). 22 23 Finally, the ALJ improperly based his credibility determination on 24 non-treating physician Dr. Smith s impression that Plaintiff could 25 perform personal and daily household activities. 26 ability to perform certain simple daily activities is not sufficient, 27 on its own, to support for an adverse credibility finding. For example, 28 the Ninth Circuit found in Orn that the ALJ improperly rejected an obese 17 (AR 391). The mere 1 plaintiff s testimony because the plaintiff was able to perform simple 2 daily activities. 3 plaintiff could perform simple daily activities did not contradict his 4 other testimony nor did the activities represent transferable work 5 skills. 6 testimony was contradicted by any testimony regarding daily activities. See Orn, 495 F.3d at 639. In Orn, the fact that the The ALJ here did not indicate which part of Plaintiff's 7 8 Thus, the ALJ erred in failing to provide specific, clear and 9 convincing reasons for regarding Plaintiff s testimony 10 credible. (AR 390). 11 convincing reasons to reject Plaintiff s testimony. as not On remand, the ALJ must identify clear and See id. 12 13 D. Remand To A Different ALJ Is Necessary 14 15 Remand for further proceedings is appropriate where additional 16 proceedings could remedy defects in the Commissioner s decision. See 17 Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000); Kail v. Heckler, 18 722 F.2d 1496, 1497 (9th Cir. 1984). 19 evaluated the severity of Plaintiff s mental impairment, the case must 20 be remanded to remedy this defect. 21 that this case should be assigned to a different ALJ. Because the ALJ improperly Additionally, the Court concludes 22 23 Where an ALJ has rendered a negative credibility determination of 24 the plaintiff, 25 reconsideration is 26 impartiality the 27 disability review process. 28 (11th Cir. 1996); see also Campbell v. Astrue, 2009 WL 3244745 (C.D. of assignment to a appropriate. ALJ is different See fundamental 20 to ALJ C.F.R. the for § unbiased 404.940. integrity of The the See Miles v. Chater, 84 F.3d 1397, 1401 18 1 Cal. Oct. 7, 2009); Reed v. Massanari, 270 F.3d 838, 845 (9th Cir. 2 2001)(remanding to different ALJ for fair consideration of evidence 3 despite no indication of ALJ bias). 4 Plaintiff s credibility and failed to properly consider all of the 5 relevant evidence in the record. 6 necessary. Here, the ALJ improperly rejected Thus, remand to a different ALJ is See Campbell, 2009 WL 3244745, at *10. 7 8 9 Upon remand the new ALJ must conduct a supplemental evaluation of the mental impairment evidence. Normally, the ALJ must first determine 10 the presence or absence of certain medical findings relevant to a 11 plaintiff s ability to work. 20 C.F.R. § 416.920a(b)(1). However, this 12 Court has determined that there is objective medical evidence that 13 Plaintiff suffers from a mental impairment relevant to his ability to 14 work. 15 ALJ 16 supplemental evaluation of mental impairment evidence. 17 § 416.920a(c)-(e). 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ Thus, the ALJ need not address this question. must complete only the remaining 28 19 inquiries Accordingly, the required by the See 20 C.F.R. 1 VII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that judgment be 5 entered REVERSING the decision of the Commissioner and REMANDING this 6 matter for further proceedings consistent with this decision. 7 FURTHER ORDERED that the Clerk of the Court serve copies of this Order 8 and the Judgment on counsel for both parties. IT IS 9 10 11 12 DATED: October 29, 2012 /S/ _____________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20
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