Leticia Moralez Ortiz v. Michael J Astrue, No. 2:2007cv05894 - Document 18 (C.D. Cal. 2008)

Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman. IT IS ORDERED that: (1) plaintiffs request for relief is granted; and (2) the Commissioners decision is reversed, and the action is remanded to the Social Security Administration for further proceedings consistent with this Opinion and Order, pursuant to sentence four of 42 U.S.C. § 405(g), and Judgment shall be entered accordingly. See order for further details. (jy)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 LETICIA MORALES ORTIZ, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) __________________________________ ) No. CV 07-5894-RC OPINION AND ORDER 15 16 Plaintiff Leticia Morales Ortiz filed a complaint on 17 September 13, 2007, seeking review of the Commissioner s decision 18 denying her application for disability benefits. 19 answered the complaint on January 28, 2008, and the parties filed a 20 joint stipulation on February 26, 2008. The Commissioner 21 22 BACKGROUND 23 I 24 On June 20, 2005, plaintiff applied for disability benefits under 25 Title II of the Social Security Act ( Act ), 42 U.S.C. § 423, claiming 26 an inability to work since August 1, 2003, due to arthritis, 27 fibromyalgia, constant pain and depression. 28 Record ( A.R. ) 13, 42, 45, 280. Certified Administrative The plaintiff s application was 1 initially denied on December 2, 2005, and was denied again on April 6, 2 2006, following reconsideration. 3 requested an administrative hearing, which was held before 4 Administrative Law Judge Sally C. Reason ( the ALJ ) on September 13, 5 2006. 6 decision finding plaintiff is not disabled. 7 plaintiff appealed the decision to the Appeals Council, which denied 8 review on August 9, 2007. A.R. 24, 278-99. A.R. 30-40. The plaintiff then On December 22, 2006, the ALJ issued a A.R. 10-17. The A.R. 3-9. 9 II 10 11 The plaintiff, who was born on September 16, 1960, is currently 12 48 years old. A.R. 64. She has a tenth-grade education and 13 previously worked as an assembly worker, cook s helper, and packer. 14 A.R. 42-43, 46, 71-87. 15 16 Since at least September 4, 2003, plaintiff has received medical 17 care at Kaiser Permanente from several physicians, including William 18 McCord, M.D., a rheumatologist, and A. Saleh, M.D., an internist.1 19 A.R. 90-249. 20 plaintiff for panic attacks, A.R. 132, and on April 22, 2005, Dr. 21 McCord prescribed Trazodone3 to plaintiff for depression. 22 23 On September 4, 2003, Dr. Saleh prescribed Ativan2 to A.R. 161. 1 Although plaintiff has both mental and physical complaints, this opinion addresses only plaintiff s mental complaints. 24 2 25 26 27 28 Ativan, also called Lorazepam, is used in the treatment of anxiety disorders and for short-term . . . relief of the symptoms of anxiety. The PDR Family Guide to Prescription Drugs, 60, 375 (8th ed. 2000). 3 Trazodone, also called Desyrel, is prescribed for the treatment of depression. The PDR Family Guide to Prescription 2 1 However, on October 5, 2005, Dr. McCord discontinued plaintiff s use 2 of Trazodone and instead prescribed Prozac4 and Elavil5 to plaintiff 3 for depression. A.R. 103, 117, 131. 4 5 On September 12, 2006, Martha Masson, Ph.D., a clinical 6 psychologist, examined plaintiff, conducted psychological testing, and 7 diagnosed plaintiff with an unspecified depressive disorder, with 8 anxiety features and psychological factors affecting medical 9 condition, and determined plaintiff s Global Assessment of Functioning 10 ( GAF ) was 50-55.6 11 experiences: poor memory; appetite disturbance with weight change; 12 sleep disturbance; personality change; mood disturbance; emotional 13 lability; anhedonia or pervasive loss of interest; psychomotor 14 agitation or retardation; feelings of guilt/worthlessness; difficulty 15 thinking or concentrating; social withdrawal or isolation; decreased A.R. 269-77. Dr. Masson opined plaintiff 16 Drugs at 198, 690. 17 4 18 19 20 21 22 23 24 25 26 27 28 Prozac is prescribed for the treatment of [major] depression that is, a continuing depression that interferes with daily functioning. The PDR Family Guide to Prescription Drugs at 554. 5 Elavil, also called amitriptyline, is prescribed for the relief of symptoms of mental depression. Id. at 34, 240. 6 A GAF of 50 means the individual exhibits [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). American Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000). A GAF of 51-55 indicates [m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. 3 1 energy; generalized persistent anxiety; and hostility and irritabil- 2 ity. 3 crying episodes 2-3 times a week, decreased concentration and memory, 4 insomnia, generalized musculoskeletal pain, irritability, social 5 withdrawal, fatigue, and recurrent thoughts of hopelessness and 6 cutting herself with a knife, and she avoids using knives due to her 7 thoughts, yet plaintiff denies suicidal ideation/intent. 8 Dr. Masson opined plaintiff is moderately limited in her ability to: 9 remember locations and work-like procedures; understand, remember and 10 carry out detailed instructions; maintain attention and concentration 11 for extended periods; perform activities within a schedule, maintain 12 regular attendance, and be punctual within customary tolerances; 13 sustain an ordinary work routine without supervision; work in 14 coordination with, or proximity to, others without being distracted by 15 them; complete a normal workweek without interruption from 16 psychologically-based symptoms and to perform at a consistent pace 17 without an unreasonable number and length of rest periods; accept 18 instructions and respond appropriately to criticism from supervisors; 19 get along with co-workers or peers without distracting them or 20 exhibiting behavioral extremes; travel to unfamiliar places or use 21 public transportation; and set realistic goals or make plans 22 independently; and mildly limited in her ability to understand, 23 remember and carry out simple one- or two-step instructions; make 24 simple work-related decisions; interact appropriately with the general 25 public; ask simple questions or request assistance; maintain socially 26 appropriate behavior and adhere to basic standards of neatness and 27 cleanliness; respond appropriately to changes in the work setting; and 28 be aware of normal hazards and take appropriate precautions. A.R. 270. Dr. Masson noted plaintiff has a depressed mood, 4 A.R. 270-71. A.R. 1 272-73. Dr. Masson further indicated plaintiff experiences episodes 2 of decompensation in work-like situations because she is depressed, 3 irritable, and excessively anxious, which can exacerbate her 4 musculoskeletal pain. 5 capable of low stress work, she is clinically depressed due to her 6 ongoing medical condition, and her condition seriously impacts her 7 ability to concentrate or learn new material. 8 Masson concluded plaintiff would miss more than three days of work a 9 month due to her condition, and opined plaintiff s clinical depression 10 remains unstable despite several years of psychotropic medications and 11 her ongoing rheumatoid arthritis impacts her depression as she has 12 difficulty remembering and focusing attention. A.R. 274. Dr. Masson opined plaintiff is A.R. 274-75. Dr. A.R. 276. 13 14 DISCUSSION 15 III 16 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 17 review the Commissioner s decision denying plaintiff disability 18 benefits to determine if his findings are supported by substantial 19 evidence and whether the Commissioner used the proper legal standards 20 in reaching his decision. 21 1172 (9th Cir. 2008); Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 22 1155, 1159 (9th Cir. 2008). Stubbs-Danielson v. Astrue, 539 F.3d 1169, 23 24 The claimant is disabled for the purpose of receiving benefits 25 under the Act if she is unable to engage in any substantial gainful 26 activity due to an impairment which has lasted, or is expected to 27 last, for a continuous period of at least twelve months. 28 423(d)(1)(A); 20 C.F.R. § 404.1505(a). 5 42 U.S.C. § The claimant bears the burden 1 of establishing a prima facie case of disability. Roberts v. 2 Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 3 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). 4 5 The Commissioner has promulgated regulations establishing a five- 6 step sequential evaluation process for the ALJ to follow in a 7 disability case. 8 must determine whether the claimant is currently engaged in 9 substantial gainful activity. 20 C.F.R. § 404.1520. In the First Step, the ALJ 20 C.F.R. § 404.1520(b). If not, in 10 the Second Step, the ALJ must determine whether the claimant has a 11 severe impairment or combination of impairments significantly limiting 12 her from performing basic work activities. 13 If so, in the Third Step, the ALJ must determine whether the claimant 14 has an impairment or combination of impairments that meets or equals 15 the requirements of the Listing of Impairments ( Listing ), 20 C.F.R. 16 § 404, Subpart P, App. 1. 17 Fourth Step, the ALJ must determine whether the claimant has 18 sufficient residual functional capacity despite the impairment or 19 various limitations to perform her past work. 20 404.1520(f). 21 Commissioner to show the claimant can perform other work that exists 22 in significant numbers in the national economy. 23 404.1520(g). 20 C.F.R. § 404.1520(c). 20 C.F.R. § 404.1520(d). If not, in the 20 C.F.R. § If not, in Step Five, the burden shifts to the 20 C.F.R. § 24 25 Moreover, where there is evidence of a mental impairment that may 26 prevent a claimant from working, the Commissioner has supplemented the 27 five-step sequential evaluation process with additional regulations 28 addressing mental impairments. Maier v. Comm r of the Soc. Sec. 6 1 Admin., 154 F.3d 913, 914 (9th Cir. 1998) (per curiam). 2 ALJ must determine the presence or absence of certain medical findings 3 relevant to the ability to work. 4 Second, when the claimant 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 8 (d) episodes of decompensation. 9 Third, after rating the degree of loss, the ALJ must determine whether First, the 20 C.F.R. § 404.1520a(b)(1). 20 C.F.R. § 404.1520a(c)(2-4). 10 the claimant has a severe mental impairment. 20 C.F.R. § 11 404.1520a(d). 12 the ALJ must determine if it meets or equals a Listing. 13 404.1520a(d)(2). 14 perform a residual functional capacity assessment, and the ALJ s 15 decision must incorporate the pertinent findings and conclusions 16 regarding plaintiff s mental impairment, including a specific finding 17 as to the degree of limitation in each of the functional areas 18 described in [§ 404.1520a(c)(3)]. 19 (e)(2). Fourth, when a mental impairment is found to be severe, 20 C.F.R. § Finally, if a Listing is not met, the ALJ must then 20 C.F.R. § 404.1520a(d)(3), 20 21 Applying the five-step sequential evaluation process, the ALJ 22 found plaintiff has not engaged in substantial gainful activity since 23 her alleged onset date, August 1, 2003. 24 found plaintiff has rheumatoid arthritis and fibromyalgia, which are 25 severe impairments; however, she does not have a severe mental 26 impairment (Step Two) and does not have an impairment or combination 27 of impairments that meets or equals a Listing. 28 next determined plaintiff can perform her past relevant work as a 7 (Step One). The ALJ then (Step Three). The ALJ 1 production assembler; therefore, she is not disabled. (Step Four). 2 IV 3 4 The Step Two inquiry is a de minimis screening device to dispose 5 of groundless claims. Smolen, 80 F.3d at 1290; Webb v. Barnhart, 433 6 F.3d 683, 687 (9th Cir. 2005). 7 Step Two of the sequential evaluation process increases the 8 efficiency and reliability of the evaluation process by identifying at 9 an early stage those claimants whose medical impairments are so slight Including a severity requirement at 10 that it is unlikely they would be found to be disabled even if their 11 age, education, and experience were taken into account. 12 Yuckert, 482 U.S. 137, 153, 107 S. Ct. 2287, 2297, 96 L. Ed. 2d 119 13 (1987). 14 requirement violates the Act by denying benefits to claimants who meet 15 the statutory definition of disabled. 16 949 (9th Cir. 1994). Bowen v. However, an overly stringent application of the severity Corrao v. Shalala, 20 F.3d 943, 17 18 A severe impairment or combination of impairments within the 19 meaning of Step Two exists when there is more than a minimal effect on 20 an individual s ability to do basic work activities. 21 at 686; Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); see 22 also 20 C.F.R. § 404.1521(a) ( An impairment or combination of 23 impairments is not severe if it does not significantly limit [a 24 person s] physical or mental ability to do basic work activities. ). 25 Basic work activities are the abilities and aptitudes necessary to do 26 most jobs, including physical functions such as walking, standing, 27 sitting, lifting, pushing, pulling, reaching, carrying or handling, as 28 well as the capacity for seeing, hearing and speaking, understanding, 8 Webb, 433 F.3d 1 carrying out, and remembering simple instructions, use of judgment, 2 responding appropriately to supervision, co-workers and usual work 3 situations, and dealing with changes in a routine work setting. 4 C.F.R. § 404.1521(b); Webb, 433 F.3d at 686. 5 burden of demonstrating she suffers from an impairment affecting her 6 ability to perform basic work activities, the ALJ must find that the 7 impairment is severe and move to the next step in the SSA s five- 8 step process. 9 2001) (emphasis in original); Webb, 433 F.3d at 686. 20 If a claimant meets her Edlund v. Massanari, 253 F.3d 1152, 1160 (9th Cir. 10 11 Here, the ALJ found plaintiff does not have any severe mental 12 disabilities because she has, at most, only a slight impairment 13 which medical evidence establishes as having no more than a minimal 14 effect, if any, on her ability to perform basic work activities. 15 A.R. 15. 16 plaintiff s diagnosed mental impairments have only caused the 17 following limitations: mild restrictions of activities of daily 18 living; mild difficulties in maintaining social functioning; mild 19 deficiencies of concentration, persistence or pace resulting in 20 failure to complete tasks in a timely manner; and no episodes of 21 deterioration or decompensation. 22 the ALJ s Step Two determination is not supported by substantial 23 evidence because the ALJ improperly rejected the opinions of Dr. 24 Masson, the only health care provider to offer an opinion regarding 25 plaintiff s mental limitations. In reaching this Step Two determination, the ALJ found Id. However, plaintiff contends The plaintiff is correct. 26 27 28 As set forth above, Dr. Masson diagnosed plaintiff with an unspecified depressive disorder, with anxiety features and 9 1 psychological factors affecting medical condition, determined 2 plaintiff s GAF was 50-55, and opined plaintiff had numerous 3 moderate limitations in her mental abilities, including her 4 abilities to respond appropriately to co-workers, supervisors and 5 ordinary work situations, and to use judgment -- all of which are 6 basic work activities. 7 8 The ALJ must provide clear and convincing reasons for 9 rejecting the uncontradicted opinion of an examining physician[,] 10 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Widmark v. 11 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006), and [e]ven if 12 contradicted by another doctor, the opinion of an examining doctor can 13 be rejected only for specific and legitimate reasons that are 14 supported by substantial evidence in the record. 15 Comm r of the Soc. Sec. Admin., 166 F.3d 1294, 1298-99 (9th Cir. 16 1999); Ryan v. Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 17 2008). 18 little weight because Dr. Mason apparently ha[d] seen the 19 [plaintiff] for a one time only evaluation with no indication that she 20 would continue to treat the [plaintiff] and because Dr. Masson s 21 one[-]time evaluation was performed for the sole purposes [sic] to 22 furthering her disability case. 7 23 clear and convincing reasons for rejecting Dr. Masson s uncontradicted 24 opinions. Regennitter v. Here, the ALJ rejected Dr. Masson s opinions, giving them A.R. 15. However, these are not Rather, the ALJ s disparagement of Dr. Masson s opinions on 25 26 27 28 7 Given the ALJ s rationale, it is ironic that the ALJ reached the opposite conclusion in assessing plaintiff s physical impairments, crediting the opinions of an examining physician and a nonexamining physician over the opinions of plaintiff s treating physician. See A.R. 14-16. 10 1 the ground she did not treat plaintiff ignores the well-established 2 distinction between an examining and a treating doctor. 3 doctor[] who examined [plaintiff] at the Commissioner s request, Dr. 4 [Masson] was neither asked, nor paid, to provide treatment for 5 [plaintiff], but rather to give an objective opinion about [her] 6 medical condition. 7 pointed to no evidence of any impropriety in Dr. Masson s report, and 8 in the absence of other evidence to undermine the credibility of a 9 medical report, the purpose for which the report was obtained does not Regennitter, 166 F.3d at 1299. Like the Moreover, the ALJ 10 provide a legitimate basis for rejecting it. Reddick v. Chater, 157 11 F.3d 715, 726 (9th Cir. 1998); Lester, 81 F.3d at 832. 12 13 The ALJ also rejected Dr. Masson s opinions on the ground 14 plaintiff was prescribed psychiatric medications by Drs. Saleh and 15 McCord, who are not mental health practitioners, and [t]here is no 16 indication that the [plaintiff] ever sought counseling, therapy, or 17 other psychiatric or psychological care prior to application for 18 benefits. 19 reasons for rejecting Dr. Masson s opinions since Drs. Saleh and 20 McCord are competent under California law to prescribe psychiatric 21 medication, see, e.g., Lester, 81 F.3d at 833 (9th Cir. 1995) ( Dr. 22 Kho provided treatment for the claimant s psychiatric impairment, 23 including the prescription of psychotropic medication. 24 constitutes competent psychiatric evidence and may not be 25 discredited on the ground that he is not a board certified 26 psychiatrist. ), and because mental illness is notoriously 27 underreported and because it is a questionable practice to chastise 28 one with a mental impairment for the exercise of poor judgment in A.R. 15. However, these also are not clear and convincing 11 His opinion 1 seeking rehabilitation. 2 (citations omitted); see also Nguyen v. Chater, 100 F.3d 1462, 1465 3 (9th Cir. 1996) ( [I]t is common knowledge that depression is one of 4 the most underreported illnesses in the country because those 5 afflicted often do not recognize that their condition reflects a 6 potentially serious mental illness. 7 be one of millions of people who did not seek treatment for a mental 8 disorder until late in the day is not a substantial basis on which to 9 conclude that [the psychologist s] assessment of claimant s condition 10 is inaccurate. Regennitter, 166 F.3d at 1299-1300 Thus, the fact that claimant may (citation omitted)). 11 12 Because the ALJ failed to provide adequate reasons for rejecting 13 Dr. Masson s opinions, this Court credits them as a matter of law. 14 Widmark, 454 F.3d at 1069; Edlund, 253 F.3d at 1160. 15 crediting Dr. Masson s opinions, it is clear plaintiff has a severe 16 mental impairment. 17 Barnhart, 295 F. Supp. 2d 926, 952 (E.D. Wis. 2003) ( [P]laintiff had 18 a severe impairment when examining physicians determined plaintiff s 19 GAF to be 51-60, which meant that plaintiff s symptoms were moderate, 20 and that he would have moderate difficulty in social, occupational or 21 school functioning. (citation omitted)); Bennett v. Barnhart, 264 22 F. Supp. 2d 238, 255 (W.D. Pa. 2003) ( [A] GAF score of 55 to 60 23 suggests . . . a mental impairment that is severe in nature. ). 24 light of plaintiff s severe mental impairment, and the ALJ s failure 25 to consider the effect of plaintiff s severe mental impairment on 26 plaintiff s ability to perform her past relevant work, the ALJ s Step 27 Four determination that plaintiff can perform her past relevant work 28 as a production assembler is not supported by substantial evidence. Here, properly Edlund, 253 F.3d at 1159-60; see also Samuel v. 12 In 1 Vasquez v. Astrue, __ F.3d __, 2008 WL 4791860, *7-8 (9th Cir. 2 (Cal.)); Edlund, 253 F.3d at 1160. 3 4 V 5 When the Commissioner does not apply the proper legal standards, 6 the Court has authority to affirm, modify, or reverse the 7 Commissioner s decision with or without remanding the cause for 8 rehearing. 9 1076 (9th Cir. 2002). 42 U.S.C. § 405(g); McCartey v. Massanari, 298 F.3d 1072, Generally when a court . . . reverses an 10 administrative determination, the proper course, except in rare 11 circumstances, is to remand to the agency for additional investigation 12 or explanation. 13 2004) (citations omitted); Moisa v. Barnhart, 367 F.3d 882, 886 (9th 14 Cir. 2004). 15 the effect of plaintiff s severe mental impairment on plaintiff s 16 ability to work.8 17 F.3d 949, 956 (9th Cir. 2001). Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. In this case, remand is warranted so the ALJ can assess Webb, 433 F.3d at 688; Bustamante v. Massanari, 262 18 19 ORDER 20 IT IS ORDERED that: (1) plaintiff s request for relief is 21 granted; and (2) the Commissioner s decision is reversed, and the 22 action is remanded to the Social Security Administration for further 23 proceedings consistent with this Opinion and Order, pursuant to 24 // 25 26 27 28 8 Because this Court concludes the ALJ erred in Step Two of the sequential analysis, it need not reach the other claims plaintiff raises, none of which would afford plaintiff greater relief than herein granted. Marcia v. Sullivan, 900 F.2d 172, 177 n.6 (9th Cir. 1990). 13 1 sentence four of 42 U.S.C. § 405(g), and Judgment shall be entered 2 accordingly. 3 4 DATE: ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 5 6 R&R-MDO\07-5894.mdo 11/25/08 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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