Alice Daniels v. Commissioner of Social Security Administration, No. 8:2009cv01108 - Document 17 (C.D. Cal. 2010)
Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is REVERSED. 2. This action is REMANDED to defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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Alice Daniels v. Commissioner of Social Security Administration Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 12 ALICE DANIELS, 13 ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 No. SACV 09-1108 CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. 21 review of the Commissioner’s denial of disability benefits. 22 discussed below, the court finds that the Commissioner’s decision 23 should be reversed and this matter remanded for further proceedings. 24 25 I. Plaintiff seeks As BACKGROUND Plaintiff Alice Daniels was born on October 23, 1956, and was 26 fifty-one years old at the time of her administrative hearing. 27 [Administrative Record (“AR”) 59, 65.] 28 a half years of college education and past relevant work experience as She has approximately two and 1 Dockets.Justia.com 1 an instructional aide and lead teacher. [AR 65, 80.] 2 alleges disability on the basis of pain in her lower back and left 3 shoulder due to arthritis, loss of cartilage in her knees, and mental 4 health problems. [AR 69-72.] 5 6 II. Plaintiff PROCEEDINGS IN THIS COURT Plaintiff’s complaint was lodged on September 25, 2009, and filed 7 on October 2, 2009. On April 16, 2010, Defendant filed an Answer and 8 plaintiff’s Administrative Record (“AR”). 9 parties filed their Joint Stipulation (“JS”) identifying matters not 10 in dispute, issues in dispute, the positions of the parties, and the 11 relief sought by each party. 12 submission without oral argument. 13 III. On June 17, 2010, the This matter has been taken under PRIOR ADMINISTRATIVE PROCEEDINGS 14 Plaintiff applied for a period of disability and disability 15 insurance benefits (“DIB”) and supplemental security income (“SSI”) on 16 March 23, 2006, alleging disability since November 1, 2000. [AR 90]. 17 After the application was denied initially and on reconsideration, 18 Plaintiff requested an administrative hearing, which was held on March 19 18, 2008, before an Administrative Law Judge (“ALJ”). [AR 59.] 20 Plaintiff appeared without counsel, and testimony was taken from 21 Plaintiff and vocational expert Jeanine Metildi. [AR 90.] 22 denied benefits in a decision dated June 27, 2008. 23 Plaintiff sought review with the Appeals Council and submitted 24 additional evidence. [AR 6.] 25 on August 25, 2009, the ALJ’s decision became the Commissioner’s final 26 decision. [AR 1.] 27 28 IV. The ALJ [AR 87-97.] When the Appeals Council denied review STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 2 1 Commissioner’s decision to deny benefits. The Commissioner’s (or 2 ALJ’s) findings and decision should be upheld if they are free of 3 legal error and supported by substantial evidence. 4 court determines that a finding is based on legal error or is not 5 supported by substantial evidence in the record, the court may reject 6 the finding and set aside the decision to deny benefits. 7 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 8 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 9 F.3d 1157, 1162 (9th Cir. However, if the See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, 10 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 11 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 12 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 13 “Substantial evidence is more than a scintilla, but less than a 14 preponderance.” Reddick, 157 F.3d at 720. 15 which a reasonable person might accept as adequate to support a 16 conclusion.” 17 a finding, a court must review the administrative record as a whole, 18 “weighing both the evidence that supports and the evidence that 19 detracts from the Commissioner’s conclusion.” 20 can reasonably support either affirming or reversing,” the reviewing 21 court “may not substitute its judgment” for that of the Commissioner. 22 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. To determine whether substantial evidence supports V. 23 It is “relevant evidence Id. “If the evidence DISCUSSION 24 A. THE FIVE-STEP EVALUATION 25 To be eligible for disability benefits a claimant must 26 demonstrate a medically determinable impairment which prevents the 27 claimant from engaging in substantial gainful activity and which is 28 expected to result in death or to last for a continuous period of at 3 1 least twelve months. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 2 721; 42 U.S.C. § 423(d)(1)(A). 3 Disability claims are evaluated using a five-step test: 4 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 5 6 7 8 9 10 11 12 13 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 14 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 15 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 16 C.F.R. § 404.1520, § 416.920. If a claimant is found “disabled” or 17 “not disabled” at any step, there is no need to complete further 18 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 19 Claimants have the burden of proof at steps one through four, 20 subject to the presumption that Social Security hearings are non21 adversarial, and to the Commissioner’s affirmative duty to assist 22 claimants in fully developing the record even if they are represented 23 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 24 1288. If this burden is met, a prima facie case of disability is 25 made, and the burden shifts to the Commissioner (at step five) to 26 27 28 4 1 prove that, considering residual functional capacity (“RFC”)1, age, 2 education, and work experience, a claimant can perform other work 3 which is available in significant numbers. 4 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 5 B. THE ALJ’S EVALUATION IN PLAINTIFF’S CASE 6 Here, the ALJ found that Plaintiff had not engaged in substantial 7 gainful activity since her alleged disability onset date (step one); 8 that Plaintiff had “severe” impairments, namely obesity, arthritis and 9 epilepsy (step two); and that Plaintiff did not have an impairment or 10 combination of impairments that met or equaled a “listing” (step 11 three). 12 perform light work generally; with occasional postural limitations; no 13 ladders, no heights, no dangerous or fast moving machinery; and no 14 open pools of water. [AR 93.] The vocational expert testified that a 15 person with Plaintiff’s RFC could perform Plaintiff’s past relevant 16 work as an instructional aid and lead teacher (step four). [AR 96.] 17 Accordingly, Plaintiff was found not “disabled” as defined by the 18 Social Security Act. [AR 97.] [AR 92-93.] The ALJ found that Plaintiff had an RFC to 19 C. 20 The parties’ Joint Stipulation raises the following disputed 21 issues: 22 1. ISSUES IN DISPUTE Whether the ALJ failed to properly consider the testimony of 23 1 24 25 26 27 28 Residual functional capacity measures what a claimant can still do despite existing “exertional” (strength-related) and “nonexertional” limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 Ms. Daniels; 1 2 2. 3 4 the assessment of Dr. Bruce Applebaum; 3. 5 6 Whether the ALJ failed to properly consider Ms. Daniels’ Mental Impairment; 4. 7 8 Whether the ALJ failed to completely and properly consider Whether the ALJ failed to properly consider the lay witness statement of Forrest Best; and 5. 9 Whether the Appeals Counsel failed to properly consider the new and material evidence. 10 [JS 2-3.] 11 As discussed below, Issues One, Two, and Three are dispositive. 12 D. 13 Following the ALJ’s decision denying Plaintiff’s claim for BACKGROUND: DR. APPLEBAUM’S TREATMENT RECORDS 14 benefits, filed on June 27, 2008, Plaintiff requested review before 15 the Appeals Council on August 27, 2008, and submitted additional 16 evidence, including treatment and examination records by Dr. 17 Applebaum. [AR 6-7, Exhibit 1.] 18 received treatment from Dr. Applebaum from December 3, 2004, to 19 approximately June 6, 2008. [Exhibit 1-2, 1-20.] 20 that Dr. Applebaum noted that Plaintiff suffers from major depression, 21 recurrent with moderate psychosis, and exhibits deficits in 22 significant social and occupational functioning. [Exhibit 1-18.] In 23 addition, Dr. Applebaum noted that Plaintiff has a Global Assessment 24 of Functioning (“GAF”) score of 42, which is consistent with “serious 25 symptoms OR serious impairment in social, occupational function.” 26 [Exhibit 1-22.] 27 28 The records indicate that Plaintiff They also indicate On August 25, 2009, the Appeals Council issued an Order stating that “we considered the reasons you disagree with the decision and the 6 1 additional evidence [provided].” [AR 1.] The Appeals Council 2 concluded that “this information does not provide a basis for changing 3 the Administrative Law Judge’s decision” and denied Plaintiff’s 4 request for review. [AR 2.] 5 requires reversal of the Commissioner’s decision. 6 has merit, particularly as the evidence pertains to Issues One, Two, 7 and Three. Plaintiff asserts that this evidence Plaintiff’s claim 8 E. ISSUE TWO: FAILURE TO CONSIDER MEDICAL EVIDENCE ON THE WHOLE 9 In the Ninth Circuit, the district court’s review of the 10 Commissioner’s decision requires consideration of “the rulings of both 11 the ALJ and the Appeals Council.” Ramirez v. Shalala, 8 F.3d 1449, 12 1451 (9th Cir. 1993). 13 the Appeals Council “declines to review” the decision of the ALJ, “it 14 reached this ruling after considering the case on the merits; 15 examining the entire record, including the additional material; and 16 concluding that the ALJ’s decision was proper and that the additional 17 material failed to ‘provide a basis for changing the hearing 18 decision.’ 19 decision and the additional material submitted to the Appeals 20 Council.” 21 Cir. 1990)). 22 Even in instances, such as in this case, where For these reasons, we consider on appeal both the ALJ’s Id. (citing Bates v. Sullivan, 894 F.2d 1059, 1063-64 (9th The Commissioner’s decision must be reversed if it was based on 23 legal error or unsupported by substantial evidence. Id. 24 evidence that Plaintiff submitted for the first time to the Appeals 25 Council, including the records attributable to her treatment with Dr. 26 Applebaum, was significant and probative to the disability 27 determination and therefore, should have been considered and addressed 28 by the Commissioner. Here, the Id. at 1454 (reversing Commissioner’s decision 7 1 when Appeals Council disregarded relevant medical evidence); see also 2 Booz v. Secretary, 734 F.2d 1378, 1380 (9th Cir. 1984)(remanding for 3 reconsideration by the ALJ where there is a “reasonable possibility” 4 that new evidence would have changed the outcome of the case). 5 Accordingly, reversal is required. 6 F. ISSUE THREE: MENTAL IMPAIRMENT 7 In a letter dated February 14, 2007, Dr. Applebaum stated that he 8 has treated Plaintiff since December 2004, and that Plaintiff has 9 major depression, recurrent with moderate psychosis [AR 308-309.] The 10 ALJ considered this evidence and rejected Dr. Applebaum’s assessment 11 as not credible, since he “provide[d] no objective basis for his 12 diagnosis” and “offer[ed] no treatment notes and no actual mental 13 status examination.” [AR 96.] Instead, the ALJ relied on the opinion 14 of Dr. Ahmad Riahinejad, who examined Plaintiff on June 23, 2006. [AR 15 268-272.] Dr. Riahinejad’s report stated that Plaintiff was capable of 16 managing her own funds, able to carry out simple and complex 17 instructions, accept instructions from supervisors and relate to 18 coworkers, and has no difficulty with pace. [AR 272.] 19 The ALJ, in reference to Dr. Riahinejad’s opinion, determined 20 that Plaintiff’s “medically determinable mental impairment of 21 depression does not cause more than minimal limitation in the 22 claimant’s ability to perform basic mental work activities and is 23 therefore nonsevere.” [AR 92.] 24 then submitted additional evidence which included Dr. Applebaum’s 25 treatment notes and actual mental status examinations. [Exhibit 1.] 26 These records support Dr. Applebaum’s assertions in his previous 27 letter. [AR 308-309.] 28 However, as noted above, Plaintiff At step two of the five-step disability evaluation, an impairment 8 1 or combination of impairments may be found “not severe” only if the 2 evidence establishes a “slight abnormality that has no more than a 3 minimal effect on an individual’s ability to work.” 4 433 F.3d 683, 686 (9th Cir. 2005)(quoting Smolen v. Chater, 80 F.3d 5 1273, 1290 (9th Cir. 1996)); see also Yuckert v. Bowen, 841 F.2d 303, 6 306 (9th Cir. 1988). 7 effect of an impairment or combination of impairments on the 8 individual’s ability to do basic work activities, the sequential 9 evaluation should not end with the not severe evaluation step.” Webb v. Barnhart, If an ALJ is “unable to determine clearly the Webb, 10 433 F.3d at 687 (quoting SSR 85-28, 1985 WL 56856 at *4). 11 then, involves a “de minimis screening device used to dispose of 12 groundless claims, and an ALJ may find that a claimant lacks a 13 medically severe impairment or combination of impairments only when 14 his conclusion is clearly established by the medical evidence.” 15 433 F.3d at 687 (citations omitted); see also Yuckert, 841 F.2d at 306 16 (“Despite the deference usually accorded to the Secretary’s 17 application of regulations, numerous appellate courts have imposed a 18 narrow construction upon the severity regulation applied here.”). Step two, Webb, 19 Under this narrow standard for step two evaluations, the finding 20 that Plaintiff did not have a severe mental impairment is not clearly 21 established by the medical evidence. 22 Plaintiff received regular and continuous mental health treatment, 23 takes medication for depression such as Alprazolam and Citalopram [AR 24 157], and has individual sessions with a psychologist. 25 of the treatment record evidence was discussed or evaluated in the 26 administrative decision, nor did it appear to be taken into account by 27 Dr. Riahinejad. 28 Plaintiff’s claim of mental impairment “is sufficient to pass the de The record does show that Moreover, none Based on the existing record, the evidence of 9 1 minimis threshold of step two.” 2 court “do[es] not intimate that [plaintiff] will succeed in proving 3 that [s]he is disabled,” the ALJ should continue the sequential 4 evaluation beyond step two “because there was not substantial evidence 5 to show that [plaintiff’s] claim was groundless.” 6 688. 7 from a severe mental impairment should be reversed, and the matter 8 should be remanded for further proceedings. 9 10 Webb, 433 F.3d at 687. Although the Webb, 433 F.3d at Accordingly, the ALJ’s finding that the Plaintiff did not suffer G. ISSUE ONE: PLAINTIFF’S TESTIMONY AND CREDIBILITY At the administrative hearing, Plaintiff testified, among other 11 things, that she has arthritis and pain in her low back [AR 69], loss 12 of cartilage in her knees, degenerative arthritis in her left shoulder 13 [AR 71], difficulty sitting for more than 25-30 minutes [AR 75], 14 inability to stand or walk for more than 10-15 minutes [AR 76], and 15 need of a cane for support [AR 71]. She also testified that she 16 suffers from depression, wants to sleep all day, procrastinates, and 17 gets emotional and cries [AR 72]. 18 The ALJ referenced this portion of Plaintiff’s testimony in the 19 administrative decision and noted that Plaintiff “has offered little 20 objective medical evidence of a medically determinable impairment or 21 impairment related limitations.” [AR 96.] 22 based on a number of reasons including inconsistencies in the 23 Plaintiff’s testimony, that Plaintiff’s testimony “although appearing 24 sincere, is not fully credible” regarding her symptoms and functional 25 limitations. [Id.] 26 constituted reversible error because it was not “legally sufficient”, 27 and each basis the ALJ relied on is “either false or does not reflect 28 poorly on [Plaintiff’s] credibility.” [JS 3.] The ALJ also determined, Plaintiff asserts that this determination 10 1 The standard in the Ninth Circuit for evaluations of subjective 2 symptom testimony in Social Security disability cases requires, first, 3 that the claimant produce medical evidence of an underlying impairment 4 which is reasonably likely to be the cause of the alleged symptom; 5 when this evidence is produced, the Commissioner may not reject a 6 claimant’s credibility without specifically making findings which 7 support that conclusion. 8 Cir. 1991)(en banc)(affirming standard of Cotton v. Bowen, 799 F.2d 9 1403, 1407 (1986), for review of ALJ evaluations of pain and Bunnell v. Sullivan, 947 F.2d 341, 345 (9th 10 subjective symptom testimony). 11 state “clear and convincing” reasons that includes a specific 12 statement of which symptom testimony is not credible and what facts in 13 the record lead to that conclusion. 14 1284 (9th Cir. 1996)(citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th 15 Cir. 1993)); see also Lester v. Chater, 81 F.3d at 834 (“For the ALJ 16 to reject the claimant’s complaints, [the ALJ] must provide specific, 17 cogent reasons for the disbelief”). A claimant’s pain does not need to 18 be affirmed by objective medical evidence, as long as the pain is 19 “associated with such an impairment.” Magallanes v. Bowen, 881 F.2d 20 747, 755 (9th Cir. 1989). On the other hand, evidence of conservative 21 treatment is “sufficient to discount a claimant’s testimony regarding 22 severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 750-751 23 (9th Cir. 2007). 24 The credibility determination must Smolen v. Chater, 80 F.3d 1273, Here, Plaintiff satisfied the initial requirement of producing 25 medical evidence of an underlying impairment to warrant such an 26 evaluation. 27 associated with such impairments. 28 evidence that Plaintiff underwent conservative treatment. There are The pain that Plaintiff is experiencing is reasonably On the other hand, there is 11 1 also instances of inconsistencies between medical records and 2 Plaintiff’s assertions. 3 regarding Plaintiff’s mental impairment had not been fully considered. 4 When a mental illness is involved, such as depression, the court must 5 be careful in evaluating conservative treatment, because such mental 6 conditions may affect the claimant’s willingness to be treated in the 7 first place. 8 1294, 1299-1300 (9th Cir. 1999). 9 illness findings due to lack of a full medical record at the time [AR Nevertheless, the court notes that evidence See Regenitter v. Comm’r, Soc. Sec. Admin., 166 F.3d Since the ALJ dismissed the mental 10 96] and did not consider the record as a whole, the determination of 11 credibility itself may have been affected. 12 determination of credibility is necessary in light of the new 13 evidence. 14 further proceedings. Hence a more comprehensive Accordingly, the matter should be reversed and remanded for 15 E. REMAND FOR FURTHER PROCEEDINGS 16 The decision whether to remand for further proceedings is within 17 the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 18 1175-1178 (9th Cir. 2000). 19 further proceedings, or where the record has been fully developed, it 20 is appropriate to exercise this discretion to direct an immediate 21 award of benefits. 22 remand for further proceedings turns upon their likely utility). 23 However, where there are outstanding issues that must be resolved 24 before a determination can be made, and it is not clear from the 25 record that the ALJ would be required to find the claimant disabled if 26 all the evidence were properly evaluated, remand is appropriate. 27 Here, as set out above in Issues One, Two, and Three, outstanding Where no useful purpose would be served by Harman, 211 F.3d at 1179 (decision whether to 28 12 Id. 1 issues remain before a finding of disability can be made.2 2 Accordingly, remand is appropriate. 3 VI. ORDERS 4 Accordingly, IT IS ORDERED that: 5 1. The decision of the Commissioner is REVERSED. 6 2. This action is REMANDED to defendant, pursuant to Sentence 7 Four of 42 U.S.C. § 405(g), for further proceedings as discussed 8 above. 9 10 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 11 12 13 DATED: October 1, 2010 ____________________________ CARLA M. WOEHRLE United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 The remaining issues raised by Plaintiff in the Joint Stipulation would not direct a finding of disability on the basis of the current record. 13
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